DIRECTORY
OF
POLICY MEMORAN
(OCTOBER 1986-FEBRUAftY 1
U. S. ENVIRONMENTAL PROTECTION AGENCY
Office of Solid Waste and Emergency Response
401 M Street, S.W.
Washington, D.C. 20460
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DATE
^ 10/24/86
I/ 10/28/86
S 12/24/86
v/02/12/87
04/06/87
04/06/87 •
05/08/87*
05/22/87
05/29/87
06/05/87
06/19/87
07/07/87
07/09/87
07/10/87
07/21/87
DIRECTORY OF POLICY MEMORANDA
INDEX BY DATE
TITLE
Implementation Strategy for Reauthorized Superfund:
Short Term Priorities for Action.
FY 87 Superfund Comprehensive Accomplishments Plan
Interim Guidance on Superfund Selection of Remedy
Interim Guidance: Streamlining the CERCLA
Settlement Decision Process
Guidance on Implementation of the "Contribute to
Remedial Performance" Provision
Guidance on Implementation of the Revised Statutory
Limits on Removal Actions
Key RCRA/CERCLA Decisions
Interim Guidelines for Preparing Nonbinding
Preliminary Allocations of Responsibility
Administrative Records for Decisions on Selection of
CERCLA Response Actions
Entry and Continued Access Under CERCLA
Interim Guidance on Settlements with De Minimus
Waste Contributors Under Section 122(g) of SARA
Employee Occupational Health and Safety
Interim Guidance on Compliance with Applicable or
Relevant and Appropriate Requirements.
Covenants Not to Sue Under SARA
Interim Guidance on State Participation in
Pre-Remedial and Remedial Response
07/23/87* RI/FS Improvements
* Unable to obtain
-1-
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DATE
07/24/87
08/19/87
^ 09/21/87
09/22/87
,/ 10/06/87
«/ 10/06/87
1/10/16/87
10/19/87
10/20/87
11/13/87
12/28/87
01/15/88
O 1/25/88
DIRECTORY OF POLICY MEMORANDA(Continued)
INDEX BY DATE
TITLE
Additional Interim Guidance for FY 87 Records of
Decisions
Superfund Project Execution
Guidance on the Use of Stipulated Penalties in
Hazardous Waste Consent Decrees
Guidance on Federal Superfund Liens
Interim Final Guidance on Removal Action Levels at
Contaminated Drinking water Sites
EPA Interim Guidance on Indemnification of Superfund
Response Action Contractors Under Section 119 of SARA
Key RCRA/CERCLA Decisions in First Quarter FY 88
Interim Guidance on Notice Letters, Negotiations and
Information Exchange
Evaluating Mixed Funding Settlements Under CERCLA
Revised Procedures for Implementing Off-Site
Response Actions
OSWER Strategy for Management Oversight of the-
CERCLA Remedial Action Start Mandate
Key RCRA and Superfund Decisions in Second Quarter
FY 88
Enforcement Actions Under RCRA and CERCLA at Federal
Facilities
* Unable to obtain
-2-
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DIRECTORY OF POLICY MEMORANDA
Index By Title
DATE
1986
10/28/86
10/24/86
12/24/86
1987
07/24/87
05/29/87
07/10/87
7/07/87
06/05/87
10/06/87
10/20/87
09/22/87
04/06/87
04/06/87
09/21/87
10/06/87
TITLE
FY 87 Superfund Comprehensive Accomplishments Plan
Implementation Strategy for Reauthorized Superfund:
Short Term Priorities for Action
Interim Guidance on Superfund Selection of Remedy
Additional Interim Guidance for FY 87 Records of
Decisions
Administrative Records for Decisions on Selection of
CERCLA Response Actions
Covenants Not to Sue Under SARA
Employee Occupational Health and Safety
Entry and Continued Access Under CERCLA
EPA Interim Guidance on Indemnification of Superfund
Response Action Contractors Under Section 119 of SARA
Evaluating Mixed Funding Settlements Under CERCLA
Guidance on Federal Superfund Liens
Guidance on Implementation of the "Contribute to
Remedial Performance" Provision
Guidance on Implementation of the Revised Statutory
Limits on Removal Actions
Guidance on the Use of Stipulated Penalties in
Hazardous Waste Consent Decrees
Interim Final Guidance on Removal Action Levels at
Contaminated Drinking Water Sites
* Unable to obtain
-3-
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DIRECTORY OF POLICY MEMORANDA(Continued)
Index By Title
DATE TITLE
07/09/87 Interim Guidance on Compliance with Applicable or
Relevant and Appropriate Requirements
10/19/87 Interim Guidance on Notice Letters, Negotiations and
Information Exchange
06/19/87 Interim Guidance on Settlements with De Minimus
Waste Contributors Under Section 122(g) of SARA
07/21/87 Interim Guidance on State Participation in
Pre-Remedial and Remedial Response
02/12/87 interim Guidance: Streamlining the CERCLA
Settlement Decision Process
05/22/87 Interim Guidelines for Preparing Nonbinding
Preliminary Allocations of Responsibility
05/08/87* Key RCRA/CERCLA Decisions
10/16/87 Key RCRA/CERCLA Decisions in First Quarter FY 88
Response Actions
07/23/87* RI/FS Improvements
11/13/87 Revised Procedures for Implementing Off-Site
Response Actions
12/28/87 OSWER Strategy for Management Oversight of the
CERCLA Remedial Action Start Mandate
08/19/87 Superfund Project Execution
1988
01/25/88 Enforcement Actions Under RCRA and CERCLA at Federal
Facilities
01/15/88 Key RCRA and Superfund Decisions in Second Quarter
FY 88
* Unable to obtain
-4-
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OCT
tWI OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
9200.3-02
MEMORANDUM
SUBJECT: Implementation Strategy for Reauthorized Superfund:
Short Term Priorities for Action
FROM: J.inston orter
Assistant Administrator
TO: Regional Administrator, Regions I - X
Regional Counsel, Regions I - X
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, Toxics and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
Environmental Services Division Directors
Regions I, VI, and VII
On October 17, 1986, the President signed the Superfund Amendments and
Reauthorization Act of 1986 (SARA) amending the current "Superfund" law and
enacting certain additional provisions. The attached transition guidance
provides basic interpretations and instructions with respect to SARA.
SARA continues the process and program that was put in place with the
revised National Contingency Plan (NCP) in November 1985. It contains a
number of new provisions, however, that give statutory emphasis to sane
aspects of the existing program, or that add important new considerations.
In addition, the new law requires the Agency to meet mandatory schedules for
initiating and completing various remedial activities, and challenges us to
efficiently manage a program that is much larger in size and scope.
As we move ahead with the new Superfund program, I want us to proceed
along two tracks. The first involves strong emphasis on finishing work
currently in the pipeline, particularly those projects in the final implemen-
tation phases. Completion of this and other ongoing work must incorporate
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-2-
careful consideration of the impact of SARA in'a manner designed to mini-
mize program disruption. The other track will involve initiating new work,
as well as further refinement of our understanding of the SARA provisions. •*
This is the first in a series of menos that will provide direction for
inplernenting the new Superfund program. Many of you will encounter policy
issues in advance of guidance. Questions you face in the field will help
drive our priorities for providing such guidance. I ask that you move for-
ward aggressively to implement the new program and not wait until all the
questions have been answered.
When you encounter an unresolved issue that may have national policy
implications, please consult with the Headquarters contact appropriate to
that issue. I have attached a list of contacts to assist in key areas.
The new Superfund will be a great challenge for all of us. It will
require close working relationships within EPA, as 'well as with other Federal
agencies, State and local governments, citizens groups, contractors, and
industry. It will be imperative that we show major results with the program
and funds entrusted to us. I look forward very much to working with all of
you on this very important endeavor.
Attachment
cc: Administrator
Deputy Administrator
Associate Administrator for
International Activities
Associate Administrator for
Regional Operations
Assistant Administrator for
Administration & Resources Management
Assistant Administrator for
Enforcement & Compliance Monitoring
General Counsel
Assistant Administrator for
Policy, Planning & Evaluation
Assistant Administrator for
External Affairs
Inspector General
Assistant Administrator for
Water
Assistant Administrator for
Air & Radiation
Assistant Administrator for
Pesticides & Toxic Substances
Assistant Administrator for
Research 6 Development
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9200.3-02
CERCLA REAUTHORIZATION TRANSITION GUIDANCE
I. SCOPE OF GUIDANCE
This guidance specifically addresses the management of on-
going response actions (remedial and removal, Fund and enforcement)
affected by the SARA. Although SARA includes a number of other
new authorities (such as Emergency Planning and Community Right
to Know) that are effective immediately, these provisions will be
largely addressed in separate memoranda and guidance documents.
This document paraphrases some sections of the new law. Such
paraphrasing is not meant to be interpretive of legislative language
nor does it summarize complete sections of the law that may them-
selves be very lengthy. Please carefully review the attached
summary and the actual provisions in order to understand fully the
legislation.
This guidance is organized as follows:
I. Scope of Guidance
II. Effective Date of Provisions
III. Removal Program Provisions and Priorities
IV'. Remedial Program Provisions and Priorities
V. Enforcement Program Provisions and Priorities
VI. Cross Cutting Provisions
VII. Impact on Delegations
II. EFFECTIVE DATE OF PROVISIONS
All provisions of the new statute took effect on the date
of enactment (October 17, 1986) unless otherwise specified by law.
One area, however, where previous Agency decisions are "grand-
fathered" is with respect to records of decision (RODs) and consent
decrees [§121(b)(1)].
A. Signed RODs and'Consent'Decrees - Prior to and within 30 Days
of SARA
RODs signed or consent decrees lodged prior to the date of
enactment are not required to meet new requirements of SI21
(Clean-up Standards) unless the record of decision is reopened
after the date of enactment to modify the remedy ($121(b)(1)].
An Enforcement Decision Document (EDD) is the functional equivalent
of a ROD; therefore the'effective date provision applies to all
signed EDDs, as well as RODs, where public participation was equiv-
alent to that provided for RODs. (Where the EDD resulted in a
consent degree, the grandfathering provision, of course, applies.)
In the future, all selections of remedies for fund and enforcement
lead sites will follow the ROD process.
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9200.J- 2
For RODs signed or consent decrees lodged within 30 days of
date of.enactment, EPA must certify in writing that the portion pf
the remedial action covered by the ROD or consent decree complies
to the maximum extent practicable with $121 of the new law IS121
(b){2)]. The certification responsibility is given by statute
to the Administrator. Regions should consult with their Head-
quarters' contacts and take active measures to ensure that this
certification can occur at the time of ROD signature.
B. RODs signed or Consent Decrees Lodged 30 days after SARA
RODs not signed within 30 days of enactment are required to
comply fully with all new SARA provisions. In considering the
new provisions, Regions should recognize that while cost effective
remedies which protect human health and the environment continue
to be required, the statute places a greater emphasis on the per-
formance, long-term protectiveness and reliability of remedial
actions. [See Section IV; Remedial Program Provisions.]
C. Implementation Considerations; Signed RODs for Operable Units
Projects in the design and construction phase at the time of
enactment are the highest priority for Agency actions (oee Section
IV; Remedial Program). However, before proceeding, Regions should
examine whether additional RODs are planned and assess the overall
remedial strategy to ensure that future operable units are consis-
tent with the new SARA requirements*
III. REMOVAL PROGRAM CONSIDERATIONS AND PRIORITIES
A. New Provisions
Three significant provisions of the new law are effective
immediately and may have an impact on on-going and future removal
operations.
1. Time and Dollar Limits
The new law raises the time and dollar limits for removal
operations from six months and $1 million to twelve months and
$2 million ($104{e)(l)J. Although new time and dollar limits
are effective immediately, the Regions are not currently delegated
the authority to sign Action Memoranda above $1 million. Until
delegation to the Regions, of additional authority, Headquarters'
approval of ceiling increases and exemption requests above
$1 million will be required. Regions are already delegated the
authority to approve extensions of any time limits. Any findings
by the Region that an extension of time is needed must be made as
early as practicable, and at least before expiration of the new
statutory time limit of 12 months.
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9200.3-02
Headquarters' review of non-delegated dollar limit extensions
will be expeditious and will focus on consistency with criteria
for-removal actions and, in this immediate post-enactment pericrd,
on the availability of limited dollars to complete emergency actions.
Regions have the discretion to re-evaluate on-going removals to
determine if the scope should be changed under the new limits.
At some sites, it is possible that a more efficient approach could
be designed given the additional fund/time limits available.
2. Consistency Waiver
The new statute provides for an additional waiver to statutory
limits which allows EPA to continue a removal action beyond
$2 million and 12 months where such action.is "appropriate and
consistent" with future remedial actions l$104(e)(2)1. This,
waiver is available at both proposed and final NPL sites. Our
current position is that it will not be used at non-NPL sites.
3. Contribution to Efficient Performance
Removal actions that take place after SARA are to be con-
ducted in such a manner as to "contribute to the efficient perfor-
mance" of long-term remedial measures "to the extent the President
deems practicable" [5104(b)(2)]. This provision promotes the'
performance of removal actions that more efficiently address
threats by considering the overall site clean-up before the start
of the action. The goal of this requirement is to reduce the
need for removal restarts. The responsibility under this provision
is effective immediately.
The Action Memorandum must include a specific discussion on
how the proposed removal action meets this criterion. One situa-
tion where it may not he feasible to consider how the removal
action contributes to the performance of the remedial action is in
an emergency involving an immediate threat. In such cases, response
personnel may need to take whatever immediate measures are required
to protect the public health, welfare and the environment, and should
document the reasons for taking the action without having first
considered this criterion.
For on-going removals, response personnel should keep in mind
the requirement that removals contribute to the efficient perfor-
mance of long-term remedial measures, and take whatever steps are
practicable under site-specific field circumstances to meet this
requirement. Changes to on-going removal actions that take place
in the course of exercising this responsibility should be documented
in an amended Action Memorandum. This documentation should occur
as soon as possible^.
As it is existing policy to ensure that removal actions contribute
to the efficient performance of long-term measures to the extent
practicable, this provision may have very little practical impact
on signed Action Memoranda or on-going actions.
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* If an Action Memorandum has been signed, the removal is
on-going, and a new Action Memorandum is necessary to go
beyond statutory limits* The new nemo should address tlTe
degree to which this requirement has been addressed.
* If an Action Memorandum has been signed but a removal
action not yet initiated, consideration should be given
to amending the Action Memorandum, if this requirement is
not already addressed prior to initiating the response
action.
0 If an Action Memorandum has not been signed, it must
address this requirement.
B. Removal Program Priorities
Until SARA funding is available, we must continue to con-
serve funding for removal actions. We plan to provide $2 million
per month nationally to respond to the most serious emergency
situations.
Regions should use this period to carry out preliminary
activities that will allow on-site work to begin promptly when new
CERCLA funding becomes available. Such activities include:
• Continue to conduct preliminary assessments under CERCLA
section 104(b) authority at sites where removal action may
be necessary.
4 Coordinate and prepare Action Memoranda and secure the
Regional Administrator's informal approval (not signature)
for potential removal actions of less than $1 million so
that on-site activities can begin promptly when SARA
funding becomes available.
0 Prepare and submit to Headquarters draft ceiling increase
requests (between $1 million and $2 million) and exemption
requests (above $2 million), so that coordination and infor-
mal approval can take place during the period of restricted
funding. Review of draft requests will ensure that on-site
actions can be initiated promptly and will be particularly
important in obtaining timely Headquarters' approval of
exemption requests based on the new "remedial consistency"
waiver.
• Refer sites needing action and having responsible parties to
Regional enforcement programs.
During fiscal year 1986, many removal actions were not initi-
ated, others were demobilized and some actions were conducted at a
reduced pace. As the removal program gears up with SARA funds,
removal site priorities will have to be established by each Region.
Available personnel and funding resources will have to be considered
in setting these priorities.
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9200.3-02
IV. REMEDIAL PROGRAM PROVISIONS AND PRIORITIES
Highlighted below are some of the considerations that you
will want to keep in mind as you proceed to incorporate the SARA
requirements into on-going work. Paraphrasing of the statutory
language — particularly the cleanup standards section — was
necessary due to length. The statutory language and the Regional
Counsel should be consulted for a more complete description of
SARA's impact on the program.
A. Major Provisions
i Clearly, the most important section of the law relating to
the' remedial program is $121, cleanup standards. This section
codifies many of the existing requirements under the National
Contingency Plan (NCP) but also adds new requirements, addi-
tional detail and direction. Some of the areas addressed include
emphasis on treatment technologies in selection of remedies, meeting
State standards, and formalizing the role of States in the cleanup
process. The following discussion highlights the areas that should
receive particular attention and consideration during the conduct
of RI/FSs and development of RODs.
1. , Applicable, Relevant and Appropriate Federal and State
Requirements.
Section 121(a) and (d) establish the requirements for the
degree of cleanup for remedial actions. The new amendments require
that remedial actions conducted on-site shall meet the "applicable
or relevant and appropriate standards, limitations, criteria, and
requirements" (ARAR) of State and Federal environmental laws.
Specific Federal environmental laws including, but not limited to,
TSCA, SDWA, CWA, RCRA or MPRSA, are listed as potentially applicable
to on-site clean ups. In addition, remedial actions are required
to attain specifically identified standards, such as maximum
contaminant level goals or MCLGs, formerly known as recommended
maximum contaminant levels (RMCLs), established under the Safe
Drinking Water Act and water quality criteria established under
the Clean Water Act, when relevant and appropriate under the cir-
cumstances. (See statutory language, Section 121(d), for a more
definitive description.)
The new law basically builds upon EPA's site-specific approach
to cleanup standards (found in the NCP and in the CERCLA Compliance
Policy) which requires remedial actions to meet the applicable or
relevant and appropriate requirements of other Federal environmental
statutes. Additional RCRA regulations that become effective both
before and after reauthorization will themselves expand the specific
requirements that SARA clean-ups have to meet. Some of the most
significant requirements which can be applicable or relevant and
appropriate to Superfund remedial actions are the land disposal
ban provisions of HSWA. The land ban requirements could potentially
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have significant impacts on the cleanup levels, treatment techno-
logies and the decisionmaking processes Superfund uses in remediating
sites. Many substantive issues pertaining to these regulations
and their impact on Superfund remedial actions and RCRA corrective
actions remain to be resolved. It is clear, however, that these
regulations can affect all projects in every stage of the remedial
process. Headquarters will keep the Regions closely informed on
policy development in this area.
The new law expands the list of potentially applicable or
relevant and appropriate requirements to include promulgated State
standards, requirements, criteria, or limitations. These State
requirements should be addressed in the same manner that Federal
requirements are currently. Under certain circumstances State
ARARs need not be met [5121(d)(2)(c)(ii), and (d)(4)(E)). These
circumstances include inconsistent application of State require-
ments, lack of formal promulgation of the requirement, and require-
ments that would effectively result in a statewide prohibition of
land disposal.
The addition of State requirements, criteria, standards, and
limitations as'(applicable, relevant and appropriate requirements
requires EPA to, obtain a complete picture of State requirements
early in the RI/PS process. The Regions should develop their own
process for obtaining information from the States on applicable,
relevant and appropriate requirements. - However, it is recommended
that this include':
0 A request to the State to notify EPA of the specific re-
quirements that they think will be applicable or relevant
and appropriate to each alternative under examination in
the feasibility study.
0 The above request made in writing, as early as possible,
but not later than the time when the remedial investigation
is 25 percent complete.
0 Give the State a fixed time period for review of alternatives
for which they are to identify ARARs and ask for an offical
documented response.
2. Preference for Permanent Solutions and Alternative
Treatment Technologies.
While the new provisions continue to require cost-effective
remedies which protect human health and the environment, the statute
places a greater emphasis on the long-term protection and reliability
of remedial actions.
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The language calls for remedial actions which utilize permanent
solutions and alternative treatment or resource recovery technologies
to the maximum extent practicable. It establishes a preference for
remedies in which treatment which permanently and significantly-
reduces the mobility, toxicity, or volume of waste comprises the
principal element. If a remedy in accordance with the preference
for treatment and permanent solutions is not selected, an explanation
must be published [Section 121(b)(1)(G)].
Regions should collect sufficient data during the RI/FS to
assess and compare treatment performance, reliability, and other
operating parameters. As a goal, information should also be
collected sufficient to attain an accuracy on costs of +50/-30
percent at the time of the ROD. Treatability studies frequently
will be necessary prior to the ROD to properly evaluate treatment
technologies and estimate costs. As appropriate, this would entail
pilot scale testing (e.g., confirmation burns) or, in some situa-
tions, bench scale testing (e.g., for fixation).
In evaluating alternatives, Regions should closely examine:
1) how effectively and significantly each alternative reduces the
toxicity, mobility, and volume of the waste; 2) the degree of
protectiveness and long-term reliability each alternative affords
(including the uncertainties associated with land disposal);
3) the effect of applicable or relevant and appropriate land ban
requirements on performance targets; 4) short-term impacts posed
by each option; and 5) short-term and long-term costs of the
alternatives, including capital, operation and maintenance, and
replacement costs over the life of the remedial action [$121(b)].
Present worth costs would then be calculated, as currently
practiced.
3. State Involvement
SARA provides broad authority and an extensive list of require-
ments for State involvement in every phase of the Superfund program
I5l21(f)]. Over the long term the Agency will develop and issue
regulations concerning State involvement which could go beyond
current Agency policy. In the interim. Regions should proceed to
work with the States to inform them of new requirements and priori-
ties as outlined in this memo.
The amended law generally does not alter State cost-sharing
provisions.2 Given the preference for treatment established in
the new law, and the likely increase in the cost of remedies, the
value of the State cost share of the remedial response action is
likely to increase in many cases. Regions should begin discussions
with their States now to alert them to the likely impact of the
new law so that the States may begin to consider how to raise the
additional funds that are likely to be necessary.
2/ Section 104(f) has the effect of requiring a 50 percent State
match for State operated facilities.
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States should be made aware that pre-emption by the original
CERCLA on State creation of trust funds similar to "Superfund" has
been removed in the new law (5114(a)).
4. Waivers
The new law adopts many of the waivers contained in the exist)
NCP, but also adds some new ones. Compliance with ARARs can be
waived when:
* The remedial action is an interim measure where the final
remedy will attain the ARAR upon completion;
• Compliance will result in igreater risk to human health and
the environment than other1 optionsr
' Compliance is technically impracticable;
* Other remedial actions will attain "an equivalent standard
of performance to that required under the otherwise applicable
requirement, through use of another method or approach";
• For State requirements, the State has not consistently
applied the State requirement, or demonstrated the intent
to apply such requirements, at.similar remedial actions;
or
0 For $104 remedial actions where compliance will not provide
a balance between the need to protect human health and the
environment at a facility and the availability of Fund
money for response at other facilities (S121 (d)(4)].
The waivers for Eund balancing, technical impracticalityr and
interim remedies remain essentially the same as in the NCP, while
the waiver for enforcement cases with strong public interest has
been eliminated. The waiver for unacceptable environmental impacts
has been expanded and redefined as a waiver where compliance would
result in "greater risk to human health and the environment." A
new waiver is added for actions whose "standard of performance* is
"equivalent" to a requirement through use of another method or
approach.3 And another new waiver is added for State requirements
that have not been consistently applied.
5. Health Assessments
Under the new law, a health assessment must be conducted by
the Agency for Toxic Substances and Disease Registry (ATSDR) for
every site on the National Priorities List (NPL) on the following
schedule:
• By 12/10/88 for facilities proposed for the NPL prior to
SARA; and
3/ The Conference Report states that this waiver allows "flexibility
in the choice of technology, but does not allow any lesser star
or other basis such as risk-based calculation*... unless "the
original standard is risk based."
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9200.3-02
0 Within one year after proposal for facilities proposed for
the NPL after SARA 15110],
These assesssments will assist EPA and ATSDR in determining
whether action is required to be taken to reduce human exposure to
hazardous substances, and whether additional information on human
exposure and associated health risks (i.e. epidemiological studies
by ATSDR) is needed. The assessments will evaluate the current
and potential risk to human health posed by individual sites and
facilities ($110(3)(G)].
While ATSDR will provide an assessment of whether existing
exposure provides a risk to public health, EPA will continue its
risk assessment (public health evaluation and endangerment assess-
ment) activities as part of its risk management responsibilities —
determining- and selecting the remedy.
Health assessments are not required to be completed before a
project moves forward. However, ATSDR is required to complete
health assessments "to the maximum extent practicable* before the
RI/FS is completed. The highest priority for completion of
health assessments should be any RODs the Region expects to sign
within the next several months. Regions should coordinate with
ATSDR to establish overall priorities and schedules for health
assessments as well as work closely with ATSDR during the RI
phases and development of alternatives.
B. Remedial Program Priorities
As previously mentioned in Section II (C) of this guidance,
projects in the construction phase and design projects at the time
of enactment should proceed on schedule to the degree possible.
One of the Regions' highest priority activities should be to examine
these projects and assess their consistency with subsequent operable
units given that these subsequent units will have to comply fully
with the new law.
In addition, priorities for funding remedial projects will be
determined according to the phase that the projects were in when
SARA was passed. Priorities for remedial work should focus on
the need to fund the construction pipeline. Projects nearest
completion (remedial actions) will receive funding and staffing
first, followed by remedial designs, and on-going RI/PSs. Although
we recognize that some Regions will have a need to start new RI/FSs,
for the time being the backlog of work to be done in ensuring that
on-going projects meet or exceed the SARA requirements may cause
new starts to receive a lower priority.
V. ENFORCEMENT PROGRAM PROVISIONS AND PRIORITIES
SARA includes a number of changes to the existing enforcement-
related provisions and adds a new section ($122) on settlement
procedures. In general, the enforcement-related amendments adopt
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many of the provisions of the Interim CERCLA Settlement Policy and
other existing enforcement program activities. The purpose of
this section is to outline the significant new enforcement proce-
dures and requirements and how these procedures will affect ongoing
CERCLA activities.
A. SETTLEMENT PROCEDURES
1. RI/FS Special Notice Procedures
Section 122(e) establishes a new negotiation procedure for
RI/PSs and RD/RAs which EPA may in its discretion choose to follow.
This procedure involves issuance of "special notice" to PRPs followed
by a moratorium on EPA action for a set time period. Although EPA
may continue past notice and negotiation practices, it is expected '
that in most instances the negotiation procedure under $122(e) will
be followed.
EPA may issue "special notice" if it determines that negotia-
tions would facilitate an agreement with potentially responsible
parties (PRPs) to either undertake or finance an RI/FS. Special
notice is required to include the following information, to the
extent it is available;
o Names and addresses of PRPsi
o Volume and nature of substances; and
o Ranking by volume of substances [$122(e)(1)].
EPA must also provide notice to the State of negotiations with
PRPs and provide an opportunity for State participation in the
negotiations [5121(fMl)(F)]. If the release or threat of release
at the site in question may have resulted in damages to natural
resources, EPA must notify the Federal Trustee and provide an oppor-
tunity for the Trustee to participate in the negotiations
[S122(j)(1)1. To simplify the notification of Federal Trustees,
the Agency plans to provide a list of projects in the SCAP to the
Trustees as notice to participate in negotiations. Additional
guidance on coordination with Federal Trustees will be developed.
The PRPs who receive special notice have 60 days to submit a
proposal to undertake or finance the RI/FS [$122(e)(2)(B)]. During
this 60 day period, EPA may not initiate the RI/FS [$122(e)(2)(A)).
Additional studies or investigations authorized under 5104(b) may
be initiated and nothing precludes EPA's authority to undertake
response or enforcement activity regarding a significant threat to
the public health or the environment t$122(e)(5)]. The Regions
may, under forward planning, initiate a scope of work or a
negotiations support document4. The scope of work or negotiations
V Under forward planning, using TES or REM contractors, at a cost
of up to $50K per site and estimating a work period of approxi-
mately one month, the Regions may develop a site specific "negrM-
tions support document." In general, this work would include
collecting background information, conducting a site visit and
developing a scope of work. More detailed guidance on the
scope and use of these documents will be forthcoming.
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9200.3-02
support document should be provided to PRPs when notice is given
so they can prepare an adequate proposal. Initiating the scope
of work" or negotiations support document will not constitute
starting the RI/FS under the moratorium.
If a good faith proposal5 is submitted within 60 days of notice,
the moratorium limiting initiation of the RI/PS continues for a
total of 90 days from the date of notice.
If settlement is achieved, the agreement for the conduct or
financing of the RI/FS must be in the form of an Administrative
Order on Consent or a Consent Decree ($122(d) (3)J. Administrative
Orders on Consent are the preferred format for RI/FS agreements,
except where an action has been filed in court.
The agreement may authorize the PRPs to conduct the RI/FS only
when the following conditions are met:
o EPA determines that the PRPs are qualified to do the RI/FS;
o EPA arranges or contracts for a qualified person to assist
in overseeing the conduct of the RI/FS6; and
o The PRPs agree to reimburse EPA for the cost of such
oversight l$104(a)].
The settlement agreement for the RI/FS need not contain a find-
ing of imminent and substantial endangerment to the public health
or the environment [$122(d)(1)(A)].
If a good faith proposal is not submitted within sixty days
of notice, or negotiations fail after submittal of a proposal, EPA
may initiate the RI/FS ($122(e)(4)].
5/ in general, a "good faith" proposal is a proposal in writing,
in which the PRPs make a showing of their qualifications and
willingness to conduct or finance the RI/FS which, and at least,
addresses the major elements of the workplan or statement of work.
6/ The Statement of Managers refers to a "qualified person" as
•someone with the professional qualifications, expertise and
experience necessary to provide additional assurance that the
President is conducting meaningful oversight." This person
could be a State employee, employee of another Federal agency
or any other "qualified person" EPA may contract with to perform
the oversight. This provision does not replace the need for
in-house EPA oversight, but rather supplements it, much like the
current use of TES/REM contractors or the COE for oversight.
Moreover, it is still EPA policy to require reimbursement
for the cost of its oversight.
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2. Ongoing RI/FS Activities
If. notice letters have already been sent for RI/FS negotiations
and Regions are prepared to negotiate or have inititiated negotia-
tions, parties do not have to receive another notification regarding
their liability for the conduct of the RI/FS unless the Regions
desire to use the moratorium procedures in §122(e). The Regions
must bear in mind, however, that the remedy eventually selected
for these sites must comply with 5121, cleanup standards.
a. Ongoing Negotiations for RI/FS
In ongoing negotiations for RI/PSs, PRPs should be informed
of the requirements of $121 for cleanup standards. In particular
these include, but are not limited to, consideration of alternatives
that meet ARAR reguirements, the statutory preference for permanent
remedies, and notification and involvement of States in determining
ARARs and concurring on remedy selection. EPA must also arrange
for a qualified person to assist with the oversight of the RI/FS
and the PRPs must agree to reimburse EPA for that oversight.
b. Ongoing RI/FS
An RI/FS currently being conducted by PRPs should be reviewed
to assure that alternatives evaluated include those that comply-
with 5121. This review will be similar to the evaluation that
will be conducted for ongoing fund-financed RI/FSs. (See section
on cleanup standards.) Sections of Administrative Orders on Consent
or Consent Decrees may need to be revised to reflect that the
final remedy must meet the requirements of 5121. A letter should
be sent to the PRPs informing them of the new provisions and pro-
viding them with an opportunity to discuss the changes to the
Administrative Order or Consent Decree. (A sample letter is being
developed and will be sent to the Regions shortly.)
c. New Negotiations for RI/FS
As EPA's current policy suggests, all notice letters should
be issued to the PRPs as early as possible. Responsible party
searches should be conducted concurrently with the expanded site
inspections (ESI) and notice letters should generally follow shortly
after proposal on the NPL. If the Region chooses to invoice the
S122(e) "special notice" and negotiation procedure, the notice
letter should specifically reference that fact and explain that
the 60-day timeframe in which the PRP must make an offer begins
with receipt of the notice letter. Using the notice letter
as the vehicle to begin the moratorium on initiation of the RI/FS
should avoid any potential delays when EPA is actually ready to
commence the RI/FS. A model administrative order on consent and a
detailed scope of work for the RI/FS should be sent to the PRPs at
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9200.3-02
the time notice is given. If the Region chooses not to invoke the
S122(e) procedure, the notice letter should state the reasons why
the procedure is inappropriate (§122(a)].
3. RD/RA Procedures
If EPA decides to invoke the negotiation procedures in §122(e)
for the remedial action, EPA roust again provide special notice to
the PRPs and provide information on volume, nature and ranking of
wastes. The Statement of Managers indicates that this information
"should be routinely made available at this time". This is a
separate notice and information release from the RI/PS notice.
State and Federal Natural Resource Trustees must also be notified
and provided an opportunity to participate in the negotiations.
Notice for RD/RA negotiations should generally be given as early as
possible, but no later than when EPA has identified a "preferred"
remedy.
Again, as with the RI/FS procedures, the PRPs have sixty days
'to make a good faith proposal to conduct or finance the remedial
action. A good faith proposal is a proposal in" writing, in which
the PRPs make a showing of their qualifications and willingness to
conduct or finance the major elements of the ROD. During these
sixty days, EPA may not initiate remedial action under S104(a) or
under $106. Additional studies authorized under S104(b), however,
including remedial design may be initiated during the negotiation
period.
If a good faith proposal is submitted, the moratorium on
initiation of a §104(a) response action or the issuance of $106
Administrative Order or the filing of a S106 civil action continues
for 120 days from the date of notice.
An agreement with PRPs for remedial action must be in the
form of a consent decree. Several sections of the new statute
affect the terms which can be included in such a decree. First,
$121(e)(2) requires that the decree contain stipulated penalties.
These penalties are in addition to the penalties which can be
collected under S122{e). Second, because $113(j)(2) establishes
that EPA decisions relating to remedial measures are to be judged
under the arbitrary and capricious standard, all dispute resolution
provisions must provide that in any dispute concerning the response
action the court will uphold the EPA response decision unless the
objecting party can demonstrate on the administrative record that
the decision was arbitrary and capricious or otherwise not in
accordance with law. Finally, in $122(f) Congress has established
the conditions upon which a covenant not to sue can be granted. A
separate section below explains how this statutory provision affects
settlement terms.
The proposed agreement must be filed with the Court at least
30-days before final approval is sought from the Court and persons
not party to the agreement must have an opportunity to comment
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9200.3-02
before final judgment. [5122{d) (2)
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-15-
9200.3-02
1) Effectiveness and reliability of remedy;
2) Nature of risks remaining;
3) Extent performance standards are in decree;
4) Extent action provides complete remedy;
5) Extent technology used is demonstrated to be effective;
6} Whether source of funding would be available for any
additional remedial actions; and
7) Whether action will be carried out in whole or significant
part by PRPs.
Section 122(f)(2) makes it mandatory that covenants not to sue for
future liability be provided under certain circumstances for redis-
posal Liability and for the portion of the remedial action which
involves the permanent destruction or treatment of the hazardous
waste. < No covenants not to sue for future liability, howeverf may
take effect until EPA certifies that the remedial action has been
completed and any covenant issued under §122(f) is conditioned
upon satisfactory performance of the remedial action.
If a covenant not to sue for future liability is not
mandated under $122(f)(2), the covenant must include a reopener
clause which allows EPA to pursue PRPs concerning a release or
threat of release that arises out of conditions which were unknown
at the time EPA certified that the remedial action was completed
[$122(f)(6)(A)]. The reopener should not be conditioned on the
presence of an imminent and substantial endangerment. EPA is also
authorized to include any other terms in the reopener necessary to
protect public health, welfare, and the environment [$122(f)(6)(C)].
In "extraordinary circumstances," the reopener clause may be omitted
if the terms of the agreement are sufficient to provide assurance
that public health and the environment will be protected from
future releases l§122(f)(6)(B)]. Regions should still include the
second reopener for "new scientific information" contained in the
Interim Settlement Policy.
The new language on covenants not to sue is effective immediately
and should be included in all consent decrees involving remedial
action. At a minimum, consent decrees must specify that any covenant
not to sue for future liability does not take effect until the
remedial action has been completed, that the covenant not to sue
is predicated upon satisfactory performance of the remedial work,
and that the reopener is not limited to imminent and substantial
endangerment situations.
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Additional guidance on covenants not to sue is being developed,
Until such guidance is available, Regions must consult with Read-
quarters in advance of any agreement that will provide a mandatory
covenant not to sue under §122(f}(2) or contain a no reopener
clause on the basis of the "extraordinary circumstances" provision.
5. Additional Parties
If during the course of "special notice" negotiations, addi-
tional PRPs are identified, EPA may bring those parties into the
negotiations ($122(e)(2)(C)]. However, the addition of new parties
does not affect the original date of notice and commencement of
the moratorium provision. (This applies to RI/FS negotiations as
well.)
B. Additional Enforcement Related Amendments
1. Contribution Protection
Section 113 of CCRCLA has been amended to provide contri-
bution protection statutorily to PRPs for matters addressed in an
administrative or judicially approved settlement. The settlement
reduces the potential liablity of other PRPs by the amount of 'the
settlement. Since contribution protection is now provided by-law,
it is no longer appropriate to include such a provision in the
consent decree.
2. Pre-enforcement Review
Section 113(h) has been amended to include language on pre-
en for cement review. The amendments state that Federal court
jurisdiction to review challenges to removal and remedial actions
is limited to the following cases:
o Actions under 5107;
o Actions to enforce an order under $106(a);
o Action for reimbursement under $106(b)(2)7;
o Action under $106 where U.S. has moved to compel
remedial action; and
o Action under $310 (Citizen Suits) that alleges the response
action was in violation of CERCLA.
Any person who receives and complies with an Administrative Order
may petition the Agency for reimbursement within 60 days after
completion of the required action. Reimbursement may be obtained
if a party shows by a preponderance of the evidence that it is
not liable under $107 or if the party can demonstrate that the
action ordered was arbitrary and capricious.
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9200.3-02
With the exception of the new citizen suit provision and the
new provision on reimbursement, this new language confirms the
Agency's current position that parties may not take any action.*
challenging the Agency's selection of remedy before an enforcement
action is taken. If the parties challenge the selection of remedy
following an enforcement action, that challenge is limited to
judicial review of the administrative record.
3. Judicial Review/Administrative Record: 5113(j)
SARA limits the judicial review of adequacy of any response
action taken to the administrative record. Judicial review, including
review of RODs signed before the date of enactment, will be on the
administrative record. EPA is required to establish an administrative
record which is to be the basis for the selection of any response
action. An administrative record is required for all response
actions: removal and remedial, fund-financed and enforcement. The
record must also be available for public review.
Until regulations on the administrative record are promulgated
under $113(j), the administrative record consists of all items con-
sidered by the Agency in selecting the response actions and includes
items developed and received under the current procedures for
selection of the response action including public participation
procedures. These existing procedures are set out in the June
1985 RI/PS Guidance and the February 1985 Draft ROD Guidance.
The Agency will be developing detailed guidance on what
documents need to be maintained in the record and develop, where
necessary, a process for organizing the record for sites where the
response action has been selected.
Because the record is the only basis for review of the selec-
tion of the response action by PRPs or citizen suits, it is extremely
important that the Agency properly document and maintain all the
information it uses for making the selection of response action.
The Regions must closely adhere to the procedures outlined in the
RI/FS and ROD Guidance.
C. Priorities for Enforcement Activities
The Regions, in consultation with Headquarters, will need to
re-evaluate ongoing enforcement activities and develop priorities
for assuring compliance with the new amendments. The following
should be the first priorities for Regions in re-evaluating
their enforcement activities:
1. Review of sites scheduled for RI/PS and RD funding in the
first and second quarters of FY 87. Regions must make sure
that proper notice and information exchange with PRPs has
occurred. (This should be consistent with SCAP targets.)
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9200.3-02
2. Review draft settlement documents to ensure incorporation
of the provisions discussed in V.A.3.
3. Review Agency position in ongoing negotiations for RD/RA
(where consent decree has not been lodged or ROD/EDD has r
been signed) and assure consistency with new requirements.
4. Review of PRP conducted RI/FSs that are nearing completion.
PRPs must be informed of the new statutory requirements and
Regions must assure that selection of remedy will be consis-
tent with 5121.
5. Review all other RI/FS being conducted by PRPs under adminis-
trative Orders or Consent Decrees. PRPs must be notified
of new requirements and appropriate revisions to the Order
or Decree to reflect new requirements should be made.
D. Additional Enforcement Provisions
SARA includes several other provisions that affect enforcement
activities. In general, however, these additional provisions will
not be employed by the Agency until they have been delegated from
the President to the Agency and the Agency has developed policies
and guidelines for their use. A brief description of these provi-
sions has been provided.
1. Response Action Contractor (RAC) Indemnification
Section 119 gives EPA discretionary authority to indemnify
RACs against liability (including the expenses of litigation or
settlement) for negligence arising out of the RAC's performance in
carrying out response action activities under CERCLA l$119(c)(1)].
The amendment does not allow EPA to indemnify RACs whose conduct
or activities are deemed to involve gross negligence, intentional
misconduct, or for conduct for which they are strictly liable
under State law [SH9(c) (1)]. RCRA facility owners and operators
and publicly owned treatment works (POTWs) are also precluded from
EPA indemnification (S119(c)(5)(D)].
2. Non-Binding Preliminary Allocation of Responsiblitv
Section 122(e)(3) of SARA requires the Agency to develop
guidelines for preparing non-binding preliminary allocations of
responsiblity (NBARs) for PRPs. These guidelines may include
such factors as volume, toxicity, mobility, strength of evidence,
ability to pay, litigative risk, etc. The Agency, in its discretion,
may, after the RI/FS, provide an NBAR to the PRPs. NBARs are not
admissable as evidence, are not subject to judicial review and do
not constitute an apportionment or other statement on the divisibility
of harm or causation.
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9200.3-02
Working with the Regions, Headquarters is currently developing
the guidelines for NBARs and plans to develop several pilot projects
beginning early next year.
3. De Minimis Settlements
Section 122(g) of SARA authorizes EPA to reach final settle-
ments with PRPs if the settlement involves a minor portion of the
response costs and the waste sent to the site by the PRP is minimal
in comparison to the other hazardous substance at the facility in
terras of amount and toxicity. Final settlements also may be entered
with landowner PRPs if the landowner did not conduct or permit
the disposal of hazardous waste at the site, did not contribute to
the release of hazardous substances by an act or omission, and did
not buy the property with the knowledge that waste had been disposed
of at the site. PRPs claiming a defense to liability as opposed
to being less culpable than other PRPs must meet the new requirements
of S101(f) to establish that defense.
These "de minimis" settlements may be in the form of an
Administrative Order or a Consent Decree. Administrative Orders
for facilities where total response costs exceed $500,000 must
have the written approval of DOJ.
The, Agency has several "de minimis" pilot projects underway
and is concurrently developing Agency-wide guidance for "de minirois"
settlements.
4. Cost Recovery Settlements
Section 122(h) authorizes any agency with authority to respond,
to compromise and settle claims under 5107, if the claim has not
been referred to DOJ. DOJ must give written approval of any claim
compromised where the total response costs exceed $500,000.
Procedures and guidance on compromising claims are under
development.
VI. CROSS-CUTTING PROVISIONS
A. Scope of Response Action
SARA contains three prohibitions on response actions that
generally reflect existing agency policy. Fund-eligible response
actions *re generally prohibited with respect to:
• Releases of naturally occurring substances;
• Releases from products which are part of buildings or
structures and result in exposure therein; and
• Contamination of drinking water supplies due to normal
deterioration of the system.
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The Agency may respond to these situations in cases of emergency
where no other party can respond in a timely manner l$104(c)l.
B. Off-Site Policy
The new statute reflects the current off-site policy in
most respects. The existing off-site policy remains in place as
is, except as altered by the Statute. If aspects of the off-site
policy are more stringent than statutory requirements, these pro-
visions remain in effect.
The statute requires that hazardous substances, pollutants
and contaminants be disposed of off-site only at facilities in
compliance with (i.e. having no significant violations) RCRA
Subtitle C or TSCA or other applicable Federal laws where appro-
priate, and applicable State requirements (S121(d)(3)].
i
Disposal at off-site land disposal facilities is further
restricted in that:
0 The unit receiving the waste roust have no release into
ground water, surface water, or soil (other than de
minimus releases into soil); 8 and
0 Any releases from other,units must be controlled under an
approved corrective action program (either through a per-
mit or administrative order).
With respect to the above statutory conditions. Regions will
need to examine commercial facilities to determine if there are
significant violations of State standards, or if there are release'
from the proposed receiving unit, in order to determine whether t'.
off-site facility is eligible to receive CERCLA waste. (Please
note, as per previous guidance, the fact that the facility is in
assessment monitoring does not mean that the facility is ineligible.
Evidence of a release determines eligibility/ineligibility.) In
addition, Regions must examine whether there are releases from other
units (regulated units or solid waste management units). If such
releases are present, the facility must be under an order or permit
schedule of compliance to correct such releases in order to be
eligible to receive CERCLA waste.
The statute also requires that notice of ineligibility determina-
tions made under the Off-Site Policy be given to facilities. Until
regulations are developed, notice must be given per the statutory
requirements. Those requirements are met by following the notice
procedures set forth in OSHER Directive Number 9330.2-05 (CERCLA
Off-Site Policy: Providing Notice to Facilities; May 12, 1986).
8/ The Conference Report states that this language ""is intended to
preclude transfer or disposal of hazardous waste or constituents
thereof into unlined units and lined units with releases other
than de minimis releases into soil."
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-21-
9200.3-02
C. Technical Assistance Grants
The new amendments provide authority to issue technical assis-
tance grants of up to $50,000 to "any group of individuals which
may be affected by a release or threatened release at any facility
which is listed on the NPL..." [Section 117(e)]. SARA requires
that rules be issued governing these grants. These rules are
under development and we plan to issue them as interim final regu-
lations. Information on how citizens can apply for the grants
will also be issued at that time.
D. Leaking Underground Storage Tank Trust Fund
SARA also contains a section amending Subtitle I of RCRA to
establish a Leaking Underground Storage Tank Trust Fund which is
to pay costs incurred for corrective action and enforcement action
resulting from responses to leaking underground petroleum storage
tanks. These amendments also require establishment of financial
responsibility by private parties for purposes of corrective action
and compensation resulting from accidental tank releases [$205].
In general, responsible parties will provide the first line of
response action for releases from leaking tanks. When responsible
parties are not available to conduct the response, States, acting
under cooperative agreements will determine the need for and type
of response actions. The Federal government will conduct responses
only where the release constitutes a major public health emergency
and no State authority or responsible party is able to respond in
a timely manner. We anticipate that a Federal response will be
minimal. In addition to responding to emergencies, a major priority
for the Regions will be to negotiate cooperative agreements with
the States.
Because the removal contracts and program personnel are
experienced in conducting response actions, responsibility to under-
take these few Federal actions will be assigned to them. The new
Emergency Response Clean-up Services contracts and Technical Assistance
Team contracts have been modified to include responses under Subtitle
I of RCRA using UST Trust Fund appropriations. These contracts will
be available for use later this fall.
UST program authorities are new authorities that are currently
not delegated to the Regions. These provisions [Section 205 of
SARA] amend the Solid Waste Disposal Act and are given, by statute,
to the Administrator. Headquarters' sign-off will therefore be
required on response actions in this area.
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.-22-
9200.3-02
VII. IMPACT ON DELEGATIONS
A. Executive Delegations
Like CERCLA, the new law provides direct authority, in most
cases, to the President rather than directly to EPA or another
Federal agency. Some authorities in the new law will, therefore,
have to be delegated to EPA and other Federal agencies through a
revision to Executive Order 12316 before they can be implemented.
The new law affects current delegation of authority as well as
future delegations of new authority. A list of authorities that
have been delegated, as well as those that are new or changed, will
be provided shortly.
B. Internal Delegations
Existing internal delegations also remain in effect unless
they are in conflict with the new law, and/or are unavailable for
delegation until the Executive Order is revised. The language of
each existing internal delegation will be evaluated.
If an existing internal delegation is very specific, and, a
new provision is beyond the scope of the delegation, it is not
automatically delegated to the Region and must be delegated.
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LIST OF CONTACTS
TRANSITION GUIDANCE
SOVISIONS
w/ffiee of Emergency &
Remedial Response
Overview: Program
Implementation/Guidance
Clean up Standards/
Permanent Remedy
Applicable Appropriate &
Relevant Standards
NAME & TITLE
PHONE
Clem L. Rastatter
Executive Officer
Tom Sheckells, Chief
Remedial Analysis Branch
Arthur Weissrean, Acting Chief
Policy Analysis Staff
382-2180
382-2339
382-2182
State Issues
Health Authorities
Grandfathering of
Section 121
Removal Provisions
UST Removal Actions
Sam Morekas, Chief 382-2443
State 6 Regional Coordination
Branch
Elaine Stanley, Deputy Director 382-4632
Hazardous Sites Control Division
Elaine Stanley, Deputy Director 382-4632
Hazardous Sites Control Division
Hans Crump, Chief 382-2188
Response Operations Branch
Hans Crump 382-2188
Response Operations Branch
Office of Waste Programs
Enforcement
Overview: Program
Implementation/Guidance
Settlements/Notifications
Administrative Records
Indemnification 6 Response
Action Contracts
Non-binding Allocation of
Responsibility
John Cross, Chief 475-6770
Guidance & Oversight Branch
Janet Farella, Chief 382-2034
Oversight & Documentation Section
Janet Farella, Chief 382-2034
Oversight & Documentation Section
Bob Mason, Chief 382-4015
Guidance Section
Debbie Wood 475-8715
Policy Coordinator
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SEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER:
9200.3-3
TITLE: PY 1987 Superfund Comprehensive Accomplishments
Accomplishments Plan
October 28, 1986
October 28, 1986
OEPR/OPM
APPROVAL DATE:
EFFECTIVE DATE:
ORIGINATING OFFICE:
FINAL
D DRAFT
STATUS:
REFERENCE (other documents): 9200.3-01 SCAP
Integration Process and Procedures;
9200.3-02 Implementation Strategy for Reauthorized
Superfund: Short Term Priorities for Action
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OCT 28 1986
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
OSWER DIRECTIVE 9200.3-3
MEMORANDUM
SUBJECT: FY 1967 Superfund Comprehensive Accomplishments Plan
FROM: J. WTnston^Porter, Assistant Administrator for
Solid Waste and Emergency Response
TO: Regional Administrators, Regions I - X
This is to follow up on my memorandum of September 22, 1986,
concerning development of the FY 1987 Superfund Comprehensive
Accomplishments Plan (SCAP) . The workshop for Regional SCAP
Coordinators was held as scheduled on October 15 and 16. All ten
Regions were represented and I want to commend your staffs for
their participation in the workshop. The discussions identified
several areas that needed clarification and resulted in some
important improvements to report formats. These suggestions will
be incorporated into the final SCAP handbook which will be
distributed in the near future.
Now that Superfund has been reauthorized, work on actually
developing the FY 1987 SCAP must begin in earnest . Copies of the
SCAP reports and instructions for updating the SCAP were distri-
buted to your SCAP coordinators at the workshop. The coordinators
were asked to begin updating the SCAP in anticipation of a submis-
sion to Headquarters in November. Now that reauthorization has
occurred, we ask that you update your plans and return them to
Headquarters no later than November 17.
Attached are some points you should consider as you develop
your SCAP. Also attached are charts showing preliminary SCAP/SPMS
commitments for your Region.
We realize that preparing the SCAP requires a significant
workload on your staff and I want to thank you for your
cooperation. Close coordination among removal, remedial and
enforcement staffs is important at both Headquarters and the
Regions to ensure that our plans reflect the new statutory
requirements and to achieve a reasonable balance among program
initiatives. We will make every effort at Headquarters to do this.
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OSWER DIRECTIVE 9200.3-3
- 2 -
I also want to assure you that Headquarters staff is available
to help you in any way they can. I want to renew the offer made at
our SCAP workshop that Headquarters staff are available to come to
your Region to go over the SCAP planning and reporting requirements
or to work with your staff to update your Region's plans.
Attachments
cc: Henry Longest, Director, OERR
Gene Lucero, Director, OWPE
Tim Fields, Director, ERD
Russ Wyer, Director, HSCD
Steve Lingle, Director, HRSD
Terry Ouverson, Acting Director, 0PM
Tom Holleran, Director, PMSO
Jack Stanton, Director, CED
Merrill Hohman, Director, Waste Management Division, Region I
James Marshall, Acting Director, Emergency and Remedial
Response Division, Region II
Steve Wassersug, Director, Hazardous Waste Management Division,
Region III
Patrick Tobin, Director, Waste Management Division, Region IV
Basil Constantelos, Director, Waste Management Division, Region
Allyn Davis, Director, Waste Management Division, Region VI
David Wagoner, Director, Waste Management Division, Region VII
Robert Duprey, Director, Waste Management Division, Region VIII
Jeff Zelikson, Acting Director, Toxics and Waste Management
Division, Region IX
Charles Findley, Director, Waste Management Division, Region X
Susan Svirsky, SCAP Coordinator Region I
Joan Colson, SCAP Coordinator Region II
Joanne McKernan, SCAP Coordinator Region III
Sheila Cook, SCAP Coordinator Region IV
Debra Orr, SCAP Coordinator Region V
Bonnie Devos, SCAP Coordinator Region VI
Dana Trugley, SCAP Coordinator Region VII
Wanda Tauton, SCAP Coordinator Region VIII
Karen Kohnert, SCAP Coordinator Region IX
Kathy Davidson, SCAP Coordinator Region X
-------
OSWER DIRECTIVE 9200.3-3
ATTACHMENT 1
The material distributed at the workshop details the planning
and reporting requirements to be followed as you develop your
SCAP. We would like to highlight some points you should consider
as you review your Region's plans.
0 Initial programmatic guidance to be followed for FY 1987
is contained in the "early enactment" memorandum (OSWER
Directive No. 9200.3 sent to you on October 24. You
should follow this guidance as you develop your SCAP.)
c Projected activities for FY 1987 will be used to support
our FY 1987 budget request. In addition, this SCAP
will be used to allocate Regional FTE and will serve
as the basis of our FY 1987 SPMS commitments.
- The projections shown on Attachment 2 are based on
either the SCAP targeting methodologies or the
preliminary SPMS commitments made earlier this year.
The charts also show projected non-targeted activities.
These projections will be used to allocate Regional
FTE unless we receive a revised projection from you.
- Both the SPMS and SCAP targets shown on the attach-
ment are subject to negotiation. This includes those
SPMS commitments made earlier this year (which were
based on funding being available October 1). We urge
you to closely review those commitments to determine
if they are valid under the assumption that funds
will not be available until December. The current
schedule from the Office of Management and Systems
Evaluation calls for us to have preliminary SPMS
commitments developed by early December and final
SPMS targets set by January 1, 1987.
*
• The Superfund Amendments and Reauthorization Act of 1986
(SARA) imposes new requirements that impact workload in
several program areas This, together with the backlog of
work resulting from the delay in reauthorization wall strain
available staff resources. You should keep these staff
constraints in mind as you schedule work for the year.
• Work is also underway on developing the FY 1988 budget.
The overall level of resources requested in our budget
request and ultimately available for distribution in
FY 1988 will be based on the schedules contained in your
SCAP. Also, the budget for Fund-financed remedial actions
will be based on the specific sites identified in your
SCAP. Please review these projects closely and include
estimates of funds needed in FY 1988 to support both
ongoing and new remedial action projects.
-------
OSWER DIRECTIVE 9200.3-3
• It will take some time to obtain and make available
significant new funding for remedial work. Your
plans should assume that this money will become
available in December. In the interim, some funds
may become available to start high priority projects.
We will work directly with the affected Regions on a
site-specific basis as funds become available.
Jim Woolford is the SCAP coordinator at Headquarters.
Please have your SCAP coordinator contact Jim (FTS 475-9371) if
you wish any assistance and he will arrange to have the appropriate
Headquarters staff meet with your staff. Jim is also available to
answer any questions concerning SCAP requirements and instructions.
Your staff is of course also free to direct site-specific or substan-
tive policy questions affecting the SCAP to other program office staff
in OERR and OWPE.
-------
Attachment 2
OSWER DIRECTIVE 9200-3.3
TY 1987 SCAP AND SPMS TARGETS AND MEASURES FOR PRE-REMEDIAL AND REMEDIAL ACTIVITIES
ACTIVITY
*PA COMPLETIONS
*SI COMPLETIONS
****ESI COMPLETIONS
****NPL SITE ADDITIONS
I/
*ERA STARTS
*RI/FS FIRST STARTS
- Program
- Enforcement
- PRP
*RI/FS SUBSEQUENT STARTS
- Program
- Enforcement
- PRP
*RI/FS FIRST COMPLETIONS
" -RODs
/EDDs
*RI/FS SUBS. COMPLETIONS
- RODs
-.EDDs
***RD FIRST STARTS
- Program
- RP
***RD SUBSEQUENT STARTS
- Program
- RP
***RD FIRST COMPLETIONS
- Program
- RP
***RD SUBSEQUENT COMPLETIONS
- Program
- RP
REGION
T
242
63
6
10
0
7
3
2
2
3
3
0
TBD
4
2
2
1
1
0
6
4
2
*
TBD
5
4
1
0
0
TBD
TT
450
114
11
28
1
18
8
5
5
3
3
0
TBD
32
18
14
5
4
1
34
30
4
4
4
TBD
13
7
6
5
t
TBD
III
500
130
12
18
0
17
8
5
4
0
0
0
TBD
8
5
3
1
1
0
15
13
2
0
0
TBD
4
3
1
1
1
TBD
IV
461
179
15
16
1
14
7
4
3
0
0
0
TBD
12
6
6
0
0
0
26
24
2
0
0
TBD
4
4
0
0
0
TBD
V
800
217
22
36
0
35
15
11
9
7
7
0
TBD
10
4
6
2
1
1
21
17
4
1
1
TBD
6
4
/
0
0
TBD
VI
165
106
10
9
0
4
2
1
1
3
1
2
TBD
9
4
5
5
4
1
11
9
2
5
c
TBD
3
2
1
0
0
TBD
VII
165
67
6
7
3
9
4
3
2
1
0
1
TBD
3
2
1
2
2
0
2
1
1
3
3
TBD
1
1
0
0
0
TBD
VIII
133
34
4
6
1
4
2-
1
1
2
2
0
TBD
6
3
3
4
3
1
6
4
2
2
2
TBD
3
2
1
0
0
TBD
IX
321
96
10
13
0
16
7
5
4
2
2
0
TBD
3
2
1
1
1
0
4
3
1
1
1
TBD
3
3
0
0
0
TBD
X
125
55
4
7
0
9
4
3
2
0
0
0
TBD
4
3
1
0
0
0
3
3
0
0
0
TBD
1
1
0
0
TBD
TOTAL
3362
1218
100
150
6
133
60
40
MM
33
21
18
3
TBD
91
49
42
21
17
4
128
108
20
19
19
TBD
43
31
12
6
TBD
* SCAP AND SPMS TARGET (Targets for PAs, Sis and RI/FS Completions (ROD/EDO) were set
in September, remaining targets will be set in November/December.)
* SPMS REPORTING MEASURE/SCAP TARGET
... * SCAP TARGET ONLY
**** SCAP MEASURE/PROJECTION ONLY
— ERAs comprise part of the Regional Onsite First NPL Removal Start Target.
-------
OSWER DIRECTIVE 9200.3-3
FY 1987 SCAP AND SPMS TARGETS AND MEASURES FDR PRE-REMEDIAL AND REMEDIAL ACTIVITIES
ACTIVITY
*RA FIRST START
- Program
- RP
*RA SUBSEQUENT STARTS
— Program
- RP
***RA FIRST COMPLETIONS
- Program
- RP
***RA SUBSEQUENT COMPLETION
- Program
- RP
*FINAL RA COMPLETION
- Program
- RP
•DELETION INITIATION
REGION
I
2
1
1
2
2
TED
0
0
0
0
0
TBD
0
0
0
TBD
II
12
5
7
6
6
TBD
0
0
0
2
2
TBD
0
0
0
TBD
III
6
5
1
1
1
TBD
2
0
2
1
1
TBD
2
0
2
TBD
IV
5
5
0
0
0
TBD
0
0
0
0
0
TBD
0
0
0
TBD
V
7
5
2
0
0
TBD
0
0
0
0
0
TBD
0
0
0
TBD
VI
2
2
0
1
1
TBD
3
2
1
1
1
TBD
3
2
1
TBD
VII
1
1
0
0
0
TBD
2
1
1
0
0
TBD
2
1
1
TBD
VIII
3
2
1
0
0
TBD
0
0
0
0
0
TBD
0
0
0
TBD
IX
4
4
0
0
0
TBD
1
1
0
0
0
TBD
1
1
0
TBD
X
1
1
0
0
0
TBD
0
0
0
0
0
TBD
0
0
0
TBD
TOTAL
43
31
12
6
6
TBD
8
4
4
4
4
TBD
8
4
4
TBD
* SCAP AND SPMS TARGET (Targets for PAs, Sis and RI/FS Completions (ROD/EDD) were set
in September, remaining targets will be set in November/Decentot
** SPMS REPORTING MEASURE/SCAP TARGET
*** SCAP TARGET ONLY
**** SCAP MEASURE/PROJECTION ONLY
Regions are expected to provide targets for the "TBD" items through their Submission of
the SCAP in November
- 2 -
-------
OSWER DIRECTIVE 9200.3-3
FY 1987 SCAP AND SPMS TARGETS AND MEASURES FOR REMOVAL ACTIVITIES
ACTIVITY
FIRST NPL REMOVAL START
- Fund
- RP
"SUBSEQUENT NPL REMOVAL
START
- Fund
- PRP
***FIRST NON-NPL REMOVAL
START
- Fund
- USCG
- RP
***SUBSEQUENT NON-)NPL
REMOVAL START
- Fund
- USCG
- RP
*FIRST NPL REMOVAL
COMPLETION
- Fund
.- RP
*SUBSEQUENT NPL REMOVAL
COMPLETION
- Fund
- RP
***FIRST NON-NPL REMOVAL
COMPLETION
- Fund
: -USCG
- RP
***SUBSEQUENT NON-NPL REMOVAL
COMPLETION
- Fund
- USCG
- RP
***RELEASE NOTIFICATIONS
***RELEASE INVESTIGATIONS
***ON-SCENE MONITORING OF
HAZARDOUS SUBSTANCES
REGION
I
4
3
1
1
1
0
10
7
1
2
1
1
0
0
4
4
0
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
520
33
24
II
7
6
1
3
2
1
15
11
1
3
0
0
0
p
i
4
2
2
TBD
TBD
TBD
. TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
1048
65
29
III
5
4
1
1
1
0
30
23
1
6
1
1
0
0
4
4
0
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
1160
72
50
IV
3
2
1
2
1
. 1
39
28
3
8
2
1
0
1
4
4
0
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
1368
85
57
V
9
9
0
8
6
2
28
21
1
6
3
2
0
1
11
9
2
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
1664
116
52
* SCAP AND SPMS TARGET (Targets for NPL Remova
VI
2
1
1
4
3
1
14
7
4
3
1
1
0
0
1
1
0
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
448
28
25
VII
2
0
2
0
0
0
9
7
0
2
2
1
0
0
5
3
2
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
312
20
21
VIII
2
1
1
0
0
0
5
4
0
1
0
0
0
0
3
2
1
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
288
18
10
IX
2
2
0
1
1
0
19
12
3
4
0
0
0
0
1
1
0
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
680
43
20
X
3
2
1
0
0
0
5
4
0
1
0
0
0
0
1
1
0
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
312
20
12
TOTAL
39
30
9
20
15
5
174
124
14
36
9
7
0
2
38
31
7
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
8000
500
300
Completions were set in September,
remaining targets will be set in November/December.)
** SPMS REPORTING MEASURE/SCAP TARGET
*** SCAP TARGET ONLY
**** SCAP MEASURE/PROJECTION ONLY
Regions are expected to provide targets for the TBD items in their November SCAP Submission.
-------
nsWER DIRECTIVE 9200.3-3
FY 1987 SCAP AND SPMS TARGETS AND MEASURES FOR COMMUNITY RELATIONS. CHEMICAL
EMERGENCY PREPAREDNESS, OIL SPILLS AND LABORATORY ANALYSIS SUPPORT ACTIVITIES
ACTIVITY
COMMUNITY RELATIONS PROGRAM
****Community Relations
Plan Completion
****Commum'ty Relations
Plan Implementation
****Revised Community Rela-
tions Plan Completions
****Revised Community Rela-
tions Plan Implementa-
tion
****Deletion Comments
REGION
I
7
TBD
4
TBD
TBD
II
18
TBD
30
-TBD
TBD
III
17
TBD
13
TBD
TBD
CHEMICAL EMERGENCY PREPAREDNESS PROGRAM
****Emergency Preparedness
Program State Memos
'•iority Area Simulation
Excercises
****Priority Area Contin-
gency Plans
OIL SPILLS PROGRAM
****SPCC Inspections/Reviews
****CWA Funded Oil Cleaned
Up by EPA
****On-Scene Monitoring of
Responses to Oil Spills
LABORATORY ANALYSIS SUPPORT
***Samples Requested
***Samples Assigned
***Samples Shipped
TBD
6
TBD
64
26
18
TBD
TBD
TBD
TBD
3
TBD
35
2
50
TBD
TBD
TBD
TBD
8
TBD
99
29
52
TBD
TBD
TBD
IV
14
TBD
24
TBD
TBD
TBD
8
TBD
96
3
106
TBD
TBD
TBD
V
35
TBD
17
TBD
TBD
TBD
13
TBD
94
19
38
TBD
TBD
TBD
VI
4
TBD
9
TBD
TBD
TBD
5
TBD
132
2
156
TBD
TBD
TBD
VII
9
TBD
1
TBD
TBD
TBD
• 6
TBD
5
7
19
TBD
TBD
TBD
VIII IX
4
TBD
4
TBD
TBD
TBD
6
TBD
60
7
9
TBD
TBD
TBD
16
TBD
3
TBD
TBD
TBD
4
TBD
67
2
41
TBD
TBD
TBD
X
9
TBD
3
TBD
TBD
TBD
4
TBD
48
3
11
TBD
TBD
TBD
TOTAL
133
TBD
108
TBD
TBD
TBD
63
TBD
700
100
500
TBD
TBD
TBD
* SCAP AND SPMS TARGET
** SPMS REPORTING MEASURE/SCAP TARGET
*** SCAP TARGET ONLY
**** SCAP MEASURE/PROJECTION ONLY
Regions are expected to provide targets for the TBD items in their November SCAP submission.
-------
OSWER DIRECTIVE 9200.3-3
FY 1987 SCAP AND SPMS TARGETS AND MEASURES FOR ENFORCEMENT ACTIVITIES
ACTIVITY
*NPL SITES WITH COM-
PLETED PRP SEARCHES
*NON-NPL SITES WITH
COMPLETED RP SEARCHES
NEGOTIATIONS INITIATED
ONGOING OR PLANNED
*COST RECOVERY CASES
REFERRED TO HQ (>500K)
ADMINISTRATIVE COST
RECOVERY SETTLEMENTS
(<500K)
ADMINISTRATIVE ORDERS
ISSUED
*§106/107/7003 CASE
RESOLUTION/TRIAL
RESPONSE COSTS
^COVERED
§106 JUDICIAL ACTIONS
REFERRED
§106 RD/RA REFERRALS
WITHOUT SETTLEMENT
REGION
I
10
10
Reg
5
Reg
1
Reg1
1
3
Reg'
C
II
28
15
ons i
7
ons i
.ive (
III
18
30
"eport
5
•eport
:ost R{
ons report
,ive Orders
7
8
IV
16
39
quar
3
quar
icovei
V
36
28
;erly
1
:erly
•y Sei
quarterly
Issued
5
6
ons report quarterly
;ost Recovered
VI
9
14
on tl
2
on tt
,tl em<
VII
7
9
ie sta
3
ie sta
>nts
VIII
6
5
:us of r
1
:us of /
IX
13
19
iegoti<
4
tdmini!
X
7
5
itions
3
itra-
on the status of Admim'stra-
2
4
1
2
1
on the status of Response
Regions report quarterly on the status of §106
Judicial Actions Referred
1
2
2
2
2
2
0
2
0
0
TOTAL
150
174
N/A
34
N/A
N/A
39
N/A
N/A
13
- * SCAP AND SPMS TARGET (Targets for Cost Recovery Cases Referred were set In September,
remaining targets will be set in November/December.)
** SPMS REPORTING MEASURE/SCAP TARGET
*** SCAP TARGET ONLY
**** SCAP MEASURE/PROJECTION ONLY
Regions are expected to provide targets for the TBD items in their November SCAP submission.
-------
-------
-------
UNITED STATES EN VIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
9 1 HAft OFFICES?
£4 W»
SOLID WASTE AND EMERGENCY- RESPONSE
9355.0-19
MEMORANDUM
SUBJECT: Interim Guid-a.nc^e on Superfund Selection ot Remedy
FROM: J. "WinVtbn^Porter-
Assistant Administrator
TO: Regional Administrators, Regions I - X
Regional Counsel, Regions I - X
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, Toxics and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
Environmental Services Division Directors
Regions I, VI, and VII
Introduction
Section 121 of the Superfund Amendments and Reauthorization
Act (SARA) addresses the cleanup standards for Superfund remedial
actions. While the new statute retains the basic components ot
the existing Remedial Investigation/Feasibility Study (RI/FS)
and Record of Decision (ROD) process, the §121 provisions add
some new requirements and special emphasis to certain issues.
This guidance is intended to aid Regions in selecting remedial
actions pending the Agency's upcoming revision or the National
Contingency Plan (NCP).
This guidance memorandum builds on the transition guidance
issued October 24, 1986 ("Implementacion Strategy for Reauthorized
Superfund: Short Term Priorities for Action," OSWER Directive
9200.3-02) and elaborates on the guidance related to implementation
of selection of remedy requirements outlined at the Superfuna
Implementation Meeting of Novemoer 19 - 20, 1986.
-------
-2- 9355.0-19
This is one of several interim guidances we plan to issue
on some of the more difficult cleanup standards issues. The
Selection of Remedy Workgroup, which has been meeting since
July and includes representatives from Regions and States in
addition to a wide variety of Headquarters offices, is currently
engaged in drafting language for the NCP regulation and preamble.
A number of issues related to applicable or relevant and appropriate
Federal and State requirements, cost-effectiveness, and challenges
associated with an increased use of treatment will be addressed.
In addition to this and subsequent interim guidances, we
will attempt to meet short-term Regional implementation needs
by making Headouarters staff available, upon your request, to
assist your staffs as they modify their RI/FS workplans for
ongoing projects in January and February, 1987. In preparation
for these project review sessions, Regions in conjunction with
State-lead Agencies,should begin to examine ongoing projects
and draft a list of potential changes that will be required co
satisfy §121 of SARA. Regional staft should use this guidance
and the transition guidance as the basis for proposed workplan
revisions..
As soon as possible, Regions should notify potentially
responsible parties (PRPs) conducting RI/FSs of the new SARA
provisions and discuss with them any neces.-3.ir/ moaifications
of their workplans.
We will continue to delegate remedy selection authority to
Regions. In support of this effort over the longer term we
will be revising the RI/FS Guidance and ROD Guidance and holding
related workshops in the Spring of 1987. Also, Headquarters
will be available to assist Regions with final FS revisions and
ROD preparation throughout the fiscal year.
Overview of the Process
Under SARA, the remedial process retains its major analytical
components: a remedial investigation (RI) in which data about
site and waste characteristics, their hazards, and routes of
exposure are collected and analyzed, and in which data about
treatability of wastes and performance of treatment processes is
assembled as necessary: and a feasibility study (FS) in which a
number oE potential remedial alternatives are developed and
screened, and the most promising subset of alternatives is
evaluated against a range ot factors and compared against one
another. This process culminates in the selection ot a remedy.
Figure 1 suggests that the RI may need to be conducted in
at least two phases, while the FS will retain the three phases
described in the current NCP. The RI/FS has been evolving into
a more interactive process: as the FS progresses, more sophis-
ticated data are required to assess the feasibility of an
alternative. In addition to a literature survey, more site
-------
-3- 9355.0-19
data and/or bench- or pilot-scale testing of a treatment
technology may be needed. Likewise, the RI has become a phased
process wherein the data quality objectives (DQOs) are tailored
to the need for additional site, waste, and treatment performance
information.
While the basic framework remains intact, SARA does add
some new features and emphasis. The most signiticant emphasis
is on risk reduction through destruction or detoxification of
hazardous waste by employing treatment technologies which
reduce toxicity, mobility or volume rather than protection
achieved through prevention of exposure. SARA calls for the
Agency to prefer remedies that use treatment to permanently
and significantly reduce the toxicity, mobility, or volume
of wastes over remedies that do not use such treatment. In
addition, SARA requires that the Agency select a remedy that
utilizes permanent solutions and alternative treatment technol-
ogies, or resource recovery technologies, to the maximum extent
practicable.
It should be noted that volume reduction should be considered
distinctly from reducing toxicity and/or mobility; some treatment
processes will increase the volume of contaminated material
while effectively reducing toxicity or mobility, whereas other
processes may reduce volume and consequently increase the
concentration of constituents which increases the toxicity
and/or mobility of the contaminants.
Another significant change is the codification of the
CERCLA Compliance Policy. First publishec as an appendix to
the preamble of the current National Contingency Plan (50 FR
47946, Wednesday, November 20, 1935), this policy required
that Superfund remedial actions attain the applicable or
relevant and appropriate requirements (ARARs) of other Federal
environmental statuses. Furthermore, Section 300.68 of the
NCP specifically refers to ARARs in regard to the development
of alternatives. SARA incorporates this requirement into
statutory law while adding the provision that remedial actions
also attain State requirements more stringent than Federal
requirements if they are also applicable or relevant and
appropriate.
Also integral to the remedy selection process is SARA's
incorporation, with some modifications, of the Superfund program's
existing State involvement and community relations processes.
The new statute basically formalizes practices the Agency has
pursued and highlights the importance of early, constant, and
responsive relations with both the States and communities
affected by Superfund sites.
A discussion of how SARA affects each particular phase of
the remedy selection process follows.
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-4- 9355.0-19
Scoping of the RI/FS
In this phase, a workplan for the RI and the F5 is prepared
to undertake the studies. Existing data about the site fcrom
previous investigations, including Preliminary Assessment and
Site Investigation data collected for the National Priorities
Listing, are assembled and evaluated. Initial project boundaries
are identified, and a preliminary decision made on whether the
entire site will be evaluated and remedied as a single unit or
subdivided into two or more operable units.
Most significant in this phase is the preliminary identi-
fication of applicable or relevant and appropriate requirements
that alternatives will need to attain. At this early stage in
the process, Regions and States should begin identifying potential
health-based requirements related to determining initial action
levels, requirements which restrict activities that can be
undertaken at different locations, (such as floodplains, wetlands,
and historic sites), and on whether the requirements might be
met at the completion of each operable unit or the total site
remedy. Also, States should begin to identify and notify Regions
of State requirements that may be potentially applicable or
relevant and appropriate to the site.
Initial data quality objectives (DQOs) should also be
established to ensure that environmental, health effects ana
treatability data will he of adequate quality and appropriate
for their intended uses.
Site Characterization (RI Phase I)
This phase focuses on defining the nature and extent
of contamination through field sampling and laboratory analysis
to determine initial cleanup goals and to characterize waste
types, mixtures, volume, the media in which they occur, concen-
tration ranges and profiles, and interface zones between media.
An analysis is conducted to characterize and assess risks,
routes of exposure, fate and transport of contaminants, and
likely human and environmental receptors. DQOs should be
evaluated to identify data use, type, quality, and quantity.
DQOs should be refined to ensure that torseeable needs tor
environmental, health effects, and treatability data will be
met. At the completion of this stage, Regions should supply
the Agency for Toxic Substances and Disease Registry with the
data and analytical results.
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-5- 9355.0-19
Development of Alternatives (FS Phase I)
This stage may begin concurrently with or slightly behind
the PI and consists of three major steps: identifying potential
treatment technologies and their associated containment or
disposal requirements; prescreening of technologies for suitability
as part of alternatives, and assembling technology and/or
disposal combinations into alternatives.
Treatment alternatives should be developed ranging from
an alternative that, to the degree possible, would eliminate
the need for long-term management (including monitoring) at
the site to alternatives involving treatment that would
reduce toxicity, mobility, or volume as their principal element.
Although alternatives may involve different technologies (which
will most often address toxicity and mobility) for different
types of waste, they will vary mainly in the degree to which
they rely on long-term management of treatment residuals or
low-concentrated wastes.
In addition to the range of treatment alternatives, a
containment option involving little or no treatment and a
no action alternative should also be developed.
Initial Screening (FS Phase II)
The purpose of the screening step is to reduce the number
of alternatives for further analysis while preserving a range
of options. Consultation between the Agency and the State is
very important at this stage. This screening is accomplished
by considering the alternatives against effectiveness, implement-
ability and cost factors. Cost is an important factor when
comparing alternatives which provide similar results (i.e.,
cost may be used to discriminate among treatment alternatives,
but not between treatment and nontreatment alternatives).
In some situations the above factors could occasionally
result in elimination of alternatives which involve treatment
of the source as the principal element (e.g., large, complex
sites such as municipal landfills). Typically, ground water
actions will be necessary at such sites to achieve adequate
protection. The ROD must explain the rationale for eliminating
source treatment options at this point in the process.
Innovative technologies should be carried through the
screen if there is reasonaole belief that they offer potential
for better treatment performance or implementability, few or
lesser adverse impacts than other available approaches, or
lower costs than demonstrated technologies.
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-6- 9355.0-19
Post Screening Field Investigation (RI Phase II)
This phase of the RI should focus on collecting data
sufficient to make a well-substantiated remedy selection
decision. Alter a literature survey is conducted to identify
existing treatment data, treatability tests at the bench- and
sometimes pilot-scale may be necessary to test a particular
technology on actual site waste. Additional field data may
be collected as needed to further assess alternatives.
Detailed Analysis (FS Phase III)
The alternatives passing through the initial screen
should be analyzed in further detail against a range of factors
and compared against one another.
The effectiveness of the alternatives should be assessed,
taking into account whether or not an alternative adequately
protects human health and the environment and attains Federal
and State ARARs, whether or not it significantly and permanently
reduces the toxicity, mobility, or volume of hazardous constituents,
and whether or not it is technically reliable.
Alternatives should be evaluated against imp!ernentability
factors, including the technical feasibility and availability
of the technologies each alternative would employ, the technica.
and institutional ability to monitor, maintain, and replace
technologies over timer and the administrative feasibility ot
implementing the alternative.
Finally, the costs of,construction and the long-term costs
of operating and maintaining the alternatives should be analyzed
using present-worth analysis.
Both the short- and long-term effects of each of these
factors must be assessed. In considering these items, Regions
will address all of the long-term effectiveness factors cited
in SARA 512Kb) (1). After each alternative has been analyzed
against these factors, the remedial options should be compared
for their relative strengths and weaknesses.
Upon completion of the RI and draft FS, EPA and the State
should formulate a recommended alternative or approach to
present to the community when the FS goes out for public comment.
At this point, the RI/FS is transmitted to ATSDR for their use
in preparing a health assessment.
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9355.U-19
-7-
Selection of Remedy
The remedial action for a site should be selected among
those alternatives about which the following four findings
can be made:
0 Remedies must be protective of human health and the
environment. This means that the remedy meets or exceeds
ARARs or health-based levels established through a risk
assessment when ARARs do not exist.
0 Remedies should attain Federal and State public health
and environmental requirements that have been identified
for a specific site. In general, the remedy selection
process presumes that alternatives will be formulated
and refined to ensure that they attain all of the
appropriate ARARs. However, SARA does provide waivers
which permit selection of remedies which do not attain
all ARARs under six different types ot circumstances:
fund-balancing, technical impracticability, interim
remedy, greater risk to health and the environment,
equivalent standard of performance, and inconsistent
application of State standards. If a remedy is protective,
cost-effective, and adequately satisfies the statutory
preferences, inability to attain a particular ARAR will
not necessarily prevent selection ot that alternative if
it was viewed as the all around best remedial alternative.
0 Remedies must be cost-effective. In general, this
finding requires ensuring that the results ot a particular
alternative cannot be achieved by less costly methods.
This implies that for any specitic site there may be
more than one cost-effective remedy, with each remedy
varying in its environmental and public health results.
8 Remedies must utilize permanent solutions and alternative
treatment technologies or resource recovery technologies
to the maximum extent practicable. This determination
is interrelated to the cost-effectiveness rinding and
includes consideration of t^cnnologicdl feasibility and
availability.
The selected remedy should represent the Liest balance across
all the effectiveness, implementability, and cost factors oxamineo
in the detailed analysis. In making this selection, tne decision-
maker must consider the statutory preference tor treatment wnich
permanently and significantly reduces the toxicity, mobility or
volume of the waste.
The program permits the staging of remedial action imple-
mentation through multiple operable units. Decisionmakers may
choose to implement a limited measure to stabilize a site when
a suitable technology for that site is not currently availaole
but clearly on the horizon or capacity tor the desired technology
is currently unavailable. Initial cleanup actions should not
impede implementation of subsequent phases.
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-8- 935D.U-19
Writing the ROD
The Record of Decision (declaration statement and supportii._
documentation) is the centerpiece of the administrative record
against which the Agency's decisionmaking may be judged by the
courts. In-addition to containing an accurate and complete
summary of the site, the threat it poses, and the selected remedy,
the ROD must describe the relative strengths and weaknesses ot
each alternative considered and offer a clear justification for
the final decision that is made. For Fund-financed actions, the
ROD should include a formal written concurrence from the State.
Specific statements and explanations that should appear in
the ROD include the following:
0 A statement and justification that the selected remedy is
protective and cost-effective, attains ARARs and utilizes
permanent solutions and treatment technologies to the maximum
extent practicable, where all statutory requirements and
preferences are fully satisfied.
0 An explanation as to why an alternative that would have reduced
the toxicity, mobility, or volume of waste was not selected
if the selected remedy does not satisfy the preference for
permanent solutions.
0 A statement that indicates whether a remedy which does not
satisfy the statutory preferences for treatment is intended
as the final remedy for that site (at a minimum this remedy
would have to be protective and cost-^tfective) or whether
the action is an operable unit that will be followed by
subsequent actions to achieve a final remedy which satisfies
the preferences. The timeframe for completing the total
remedy should be specified.
0 A description of those Federal and State requirements which
were found to be applicable or relevant and appropriate to the
site and will be met. In addition, where ARARs do not exist,
a description of the health-based level that will be met.
0 A statement of which ARARs will not be met and the waiver
that will be invoked to justify the nonattainment.
0 In those occasional situations where no treatment alternative
was carried through the screen to the detailed analysis (tor
sites such as municipal landfills) a special explanation
should be included in the ROD.
Decisionmakers have some flexibility as to how specific the
ROD is regarding the use of treatment technologies. At a
minimum, the ROD should state what technology will be applied
to what type and amount of waste and the performance goal that
process is expected to reach. For instance, the ROD may state
that thermal destruction is the selected remedy. However, the
-------
-9- 9355.0-19
effectiveness, implementabi.li.ty, and cost analyses must be
based on a specific process within that technology category,
such as rotary kiln, to ground the analysis in hard data.
When the remedial action is bid, any process in that technology
category stated in the ROD would be eligible provided they
could match the performance goals of the process analyzed in
detail.
Applicability to Ongoing Projects
Superfund reauthorization affects a wide variety ot projects
in many different stages of development. The cleanup standards
provisions in §121 will affect ongoing projects in a particularly
unique way. For projects closest to ROD signature, Regional
managers and project managers should focus on whether an adequate
range of treatment alternatives was considered for feasibility,
and whether Federal and particularly State ARARs have bejen
thoroughly considered and will be met, unless a waiver is to be
invoked. If there is a sound basis for selecting and rejecting
alternatives under the new statutory requirements and preferences,
Regions should proceed to ROD signature and may postpone treatability
studies (that'would otherwise be conducted in the RI/FS) until \
remedial design.
On the oth^r hand, projects in their early stages should be
modified to b'e consistent with the process outlined in this
guidance. In particular, Regions should assess the need tor
treatability testing and initiate immediately studies necessary
to ensure availability of needed data in the detailed analysis
phase.
Ground Water Operable Units
With the exception of specific statements in §121(d)(2)(A)
(ii) and §121(d)(2)(B)(i) and (ii), the cleanup standards pro-
visions apply most directly to source control measures. The
existing approach toward ground water remediation outlined in the
"Draft Guidance on Remedial Actions for Contaminated Ground Water
at Superfund Sites (September 29, 1986)" remains largely intact
with some modifications necessary to conform to SARA requirements
related to ARARs. Specific guidance on ARARs, including MCLGs and
WQC, will be provided in tha near future.
The remedial approach outlined in the Dratt Guidance derives
directly From EPA's Ground Water Protection Strategy, which states
that ground waters should be protected differentially based on
characteristics of vulnerability, use and value. Superfund's Draft
Guidance calls for the development of a limited number of ground
water remedial alternatives within a performance range, detinea in
terms of different remediation levels (the level of ground wat^r
contaminant reduction ^chievsa), and different rates of restoration
(the time required to achieve remediation levels).
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-10- 9355.0-19
Factors that influence a decision regarding the appropriate
rate of restoration are:
0 Feasibility of providing an alternative water supply;
0 Current use of ground water;
0 Potential need for ground water;
0 Effectiveness and reliability of institutional
controls;
0 Ability to monitor and control the movement of
contaminants in ground water;
0 Other risks borne by the affected population; and
0 Population sensitivities.
Additionally, limiting the extent of contamination, the impact
of contamination on environmental receptors, the technical practi-
cability and the cost of alternatives should also be analyzed and
factored into the decision-making process.
Should you have any questions concerning this guidance, pi
contact Bill Hanson (FTS 382-2345) in the Hazardous Site Control
Division or John Cross (FTS 475-6770) in the CERCLA Enforcement
Division.
-------
! 1
Proposed Remedy Selection Process Under Reauthorization
Remedial Investigation
Scoping
ol the HI'I S
Identity potential
health based and
location specilic
slale'Federal
AIIARs determine
initial action levels
Identity imlial data
quality ohfeclives
(DOOsl l»i
remedial
investiyalion
Idenlily initial
pi ojed'opei able
iinil likely
response
scenarios
Phaie I
Sue Criaiar.lBiiralion
I (teline naluie and e>lanl ol
cunlamuialion (waste types.
contenlialions. distributions)
2 Relme OOOs
3 Assess need Im tieatabrlily
Studies, including maleiials
handling
i
Phete I
Oevelopnienl ol
Alternatives
litanlity potential
liealmeiil lerlinoloqies.
containment'itispns at
iet|i»i«mnnls Itu
le&idiials in uirtiealed
waste anil telated
AMAIIs (a u land lian|
Assemble Healmeiil'
ilispnsal combinaliiins
inlo allemalivus
Oevelnp a tange ol
alternatives attaining
vanmis levels ol
lies.
Imptomanlabllily
3 Veilly/compaie
piolaclivanaas.
protection ol ptibbc
health and envlionmenl.
compliance wtth AflARa.
i eduction ol mub*H(/
loiwlly (ailaJMiwiM of
preference lot
permanent tohilrons
involving irealment). and
olhei stalutoty lactois
(Consider waivers as
necessary)
Selection ol Remedy
Select a remedy
that is protective
of human health
and lha
environment
Select a cost
ellechve remedy
Select a remedy
that will attain
Slate'Fedetal
ARARs upon
completion
Select a remedy
(hat uses
permanent
solutions and
alternative
technologies lo the
mammum enlenl
practicable
Consider use ol
interim responses
-------
-------
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
FEBI2B8T
OSWER Directive Number 9835.4
MEMORANDUM
SUBJECT:
FROM:
TO:
Interim Guidance: Streamlining the CERCLA
Settlement flecision Process
J. winstorf Porter
Assistant Administrator
Office of Solid Waste ajid Emergency Response
«»- -J^f ^J » > I ^ » • *^« ' ^^^^CXlM^a^ ^
Thomas L. Adams, Jr. \
Assistant Administrator f&r Enforcement
and Compliance Monitorirtg
Regional Administrators, Regions I-X
Waste Management Division Directors, Regions I-X
Regional Counsels, Regions I-X
During the Administrator's Superfund Implementation Meeting
of November 19-20, 1986, several concepts were presented for
streamlining and improving the CERCLA settlement decision process.
Those concepts addressed three major areas:
1. Negotiation Preparation;
2. Management Review of Settlement Decisions; and
3. Deadline Management.
The purpose of this memorandum is to set forth those concepts in
greater detail and to define the roles, responsibilities and
procedures necessary to implement this important initiative.
BACKGROUND
Under CERCLA, EPA's goal has been and will continue to be to
maximize the number of sites which can be cleaned up. Congress
clearly indicated their support for this goal in the Section 122
settlement procedures of the Superfund Amendments and
Reauthorization J\ct of 1986 (SARA). That goal requires constant
review of old policies and development of new measures which
promote privately financed response actions.
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OSWER Directive Number 9835.4
-2-
Clearly, one important measure to encourage settlement is to
maintain aggressive use of Section 106 administrative and judicial
enforcement authorities to compel private party response (see
Porter/Mays memorandum "Use of CERCLA §106 Judicial Authority-Short
Term Strategy", dated July 8, 1986). The Office of Solid Waste
and Emergency Response (OSWER) has recently amended aspects of
the Superfund Comprehensive Accomplishments Plan (SCAP) to offset
some of the attendant project delay due to CEPCLA Section 106
litigation. Regions may now request funding for remedial design
(RD)'for enforcement lead sites concurrent with their referral.
This approach not only minimizes the time where no site action
proceeds, but also puts the government in a stronger position at
trial. Regions would be expected to pursue the litigation to
completion"'absent extraordinary circumstances or compelling
public health concerns.
Congress recoanized the value of enhancing the settlement
process in enacting SARA. The provisions for Section 122 are
based in large part upon EPA's Interim CERCLA Settlement Policy
(50 FR 5034)"and are designed to increase potentially responsible
party (PRP) participation"in response actions. The new provisions
related to special notice, information sharing and negotiation
moratoria are particularly important. They attempt to strike a
balance between the competing demands of prompting more settlements/
conserving limited government resources, and irinimizing the delay
in the clean-up process.
Additionally, our experience in the last six years has
shown us that the way in which we manage other parts of the
settlement process can also have dramatic effects on the chances
for successful negotiations. For example, setting deadlines too
tiqhtly can destroy the willingness of PRPs to attempt to settle.
On"the other hand, prolonged and inconclusive negotiations can
seriously delay response actions at a site. Based on our
experience, and comments frorr. the Regions and other parties
involved in the process, the Agency has concluded that there are
three areas, in addition to the matters covered by SARA, where
certain changes will help improve and streamline our process for
conducting settlement discussions:
0 Neaotiation Preparation;
0 Management Review of Settlement Decisions; and
0 Deadline Management.
Before describing these changes in the sections which follow,
a brief description of the problems that have been encountered
will help to explain why this guidance has been prepared.
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OSWER Directive Number 9835.4
-3-
There are two kinds of problems sometimes associated with
negotiation preparation; instances where EPA does not fully
prepare itself for negotiations and instances where EPA does not
facilitate the preparation of PRPs. Negotiations are occasionally
begun without the benefit of government proposed settlement
documents (e.g., a draft consent decree and technical support
documents). Ideally, negotiating teams should have a strategy
for settlement which addresses goals, interim milestones for
continuing negotiations, firm schedules and followup steps in the
event settlement is not achieved. When EPA does not adequately
plan, it is difficult for the government to live up to its
responsibilities in moving discussions towards conclusion.
Perhaps more important, though, are the issues related to
our support of the PRP preparation process. PRPs at Superfund
sites are often facing multi-million dollar liability. There are
generally many of them (sometimes hundreds) and our success in
negotiations is greatly influenced by the extent to which the
PRPs have the time and information to organize themselves. Our
occasional failure to give early notice or to provide adequate
information (including draft settlement documents) to PRPs has
been clearly counterproductive. Conversely, in those instances
where notice has been given early in the process, substantial
information has been made available and where EPA has assisted
in the formation of steering committees (with or without third
party assistance), we have been much more successful in settlement
efforts.
Prompt conclusion of some negotiations has also been
occasionally hampered by breakdowns in EPA's management review
of settlement decisions. Superfund settlements have frequently
posed issues which are difficult either because of their prece-
dential nature or the sheer magnitude of the clean-up. Delayed
decisions often affect the willingness of PRPs to settle and
always impair the credibility of the negotiating team. When
delays have occurred, they are generally attributable to several
factors. In some instances, negotiating teams did not raise
issues to management early in the process, and decisions ultimately
are forced by crisis. In other cases, decisions seemingly can
be made only by the highest levels of Headquarters management.
The relative inaccessability of those decision-makers to decide
on critical issues in a timely way has sometimes been a major
impediment to settlement.
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OSWER Directive Number 9835.4
-4-
The third problem area in the settlement process relates to
managing deadlines for negotiations. In recognition of the fact
that these are multi-party negotiations over complicated legal
and technical issues, a reasonable opportunity should be provided.
However, guidelines must be established for bringing closure to
issues so as not to excessively delay the clean-up at the site.
At times, decisions are made to extend negotiations based on a
showing of some subjective "progress", even where there is no
concrete result to show for that progress. Decisions are sometimes
made to continue negotiations based on concerns over future cost
recovery actions.
In order to substantially improve the CERCLA settlement
process, attention must be given to solutions for each of the
three areas discussed above. The framework set forth herein is
intended as a major first step in that direction. However,
refinement and modification of these steps will be considered
based on your comments and experience gained in the coming months.
SETTLEMENT PROCESS IMPROVEMENTS
Negotiation Preparation
Regions should improve negotiation preparation through four
activities:
1. Earlier, Better Responsible Party Searches
2. Earlier Notice and Information Exchange
3. Initiating Discussions Earlier
4. Preparation of a Strategy and Draft Settlement Documents.
The PRP Search is the first step in the settlement process
and is one of the most critical to success. Regions must pay
close attention to both the timing and quality of the PRP search
since inadequate information on the identity of PRPs and their
contributions can be a significant impediment to the PRPs
organizing themselves to present an offer of settlement. Guidance
and targets established under the SCAP now require that PRP
searches be initiated concurrent with the Expanded Site
Investigation or National Priorities List (NPL) scoring quality
assurance process. PRP searches are required to be completed
not later than the year in which the site is proposed for the
NPL. Contractor efforts should be supplemented by issuance of
information request letters or the use of administrative subpoenas
(a new provision of SARA) at the earliest possible time. It is
imperative that these searches be comprehensive and of high
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OSWER Directive Number 9835.4
-5-
quality. That places a heavy responsibility on Regional staff
to provide direction to and review of contractor efforts. In-
house civil investigators will be hired and available to Regions
this year to assist in this effort. In addition, Headquarters
staff from both OSWER and the Office of Enforcement and Compliance
Monitoring (OECM) will revise the the "Potentially Responsible
Party Search Manual" as well as present a training program
for Regional staff and contractors on the conduct and review of
PRP searches. That training should be initiated late this year.
In the meantime, Regional staff should carefully evaluate the
adequacy of PRP searches for sites scheduled for fund obligations
or judicial referral during FY 87 and early FY 88 to determine
whether supplemental work is necessary.
Regions should give notice to PRPs of their potential
liability through the traditional notice letters at the earliest
practicable time and, in all cases, well in advance of initiating
the negotiation moratorium. This is not to be confused with the
Special Notice which triggers the moratorium as described in
§122(e). (Guidance on Special Notice and the moratorium is forth-
coming.) It is not acceptable to postpone issuing notice until
only the minimal time for negotiations remains prior to obligation
of funds. Notice may be given to some parties where further
investigation or analysis is necessary to identify additional
PRPs.
Notice letters should routinely include information requests
under Section 104(e) if not previously issued. Notice letters
should to the maximum extent practicable also provide information
as to other PRPs (i.e. names, volumes contributed and rankings).
In some cases, it may be more pratical to provide this information
after analyzing the responses to the information requests.
It is likewise important to initiate discussions with PRPs
earlier in the process. While formal negotiations may not begin
until after Special Notice and closer to the planned obligation
date for the project, EPA should encourage earlier discussions
that will further the process of educating the PRPs as to the
site, EPA's approach to it and the information we have that may
bear on allocation or other pertinent matters.
The litigation team must also begin early the process of
preparing draft settlement documents and a negotiation strategy.
A draft Consent Decree (or administrative order for Remedial
Investigation/Feasibility Study (RI/FS)) should be prepared
along with any negotiation support documents outlining technical
objectives to be presented at or before the first negotiation
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OSWER Directive Number '9835.4
-6-
session. (Note that a "Negotiation Support Document" to be used
as a technical attachment for an RI/FS settlement may be prepared
by a contractor but must be initiated well in advance of
negotiations). Regional staff should also prepare for regional
management review a negotiation strategy which addresses:
0 initial positions on major issues with alternative and
bottomline positions or statements of settlement objectives;
0 schedule for negotiations which identifies not only the
drop-dead date but also interim milestones at which
negotiations can be evaluated for progress (date for good
faith proposal with line-by-line response to draft settle-
ment document; date for resolution of major issues related
to scope of work, funding arrangements, reimbursement;
date for receipt of all necessary submittals from PRPs
such as technical attachments, preauthorization requests,
trust agreements, etc);
0 strategy and schedule for action against PRPs in the
event negotiations are unsuccessful (i.e., issuance of
unilateral Administrative Order (AO) concurrent with
Remedial Design (RD) obligation, Section 106
referral, etc).
The timing of most of these activities is critical and in
many cases will be related to the proposed date of obligation of
funds. For that reason, management attention to the entire site
management planning process is critical to ensure that the required
activities at sites are properly sequenced. In order to assist
you in this, attached for your Region is an Enforcement Confidential
printout taken from the Integrated SCAP which shows the status
of key settlement related activities for sites with planned
obligations during FY S7 or FY 88. (Attachment I)
Management Review of Settlement Decisions
To help improve the management review of settlements, this
section sets out roles and accountability in the decision process.
In addition, it adds two new elements to focus and streamline
policy review:
0 A Settlement Decision Committee (SDC); and the
0 Assistant Administrator (AA) Level Review Team.
The existing negotiation team approach will continue to be the
primary vehicle for developing settlements. The negotiation team
will routinely be comprised of a representative from the Waste
Management Division and a representative from the Office of Regional
Counsel. Department of Justice (DOJ), OECM, the Office of Waste
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OSWER Directive Number 9835.4
-7-
Programs Enforcement (OWPE) staff and appropriate State representa-
tives may participate as necessary. The responsibilities of the
negotiation team are to:
0 ensure that PRP searches, notice and information exchange
are properly scheduled and completed;
0 develop a comprehensive negotiations strategy in advance
of negotiations;
0 develop and share draft settlement documents, including
technical scopes of work, in advance of negotiations;
0 conduct negotiations; and
0 raise issues to the Regional Administrator, and where
necessary), to the Settlement Decision Committee for
resolution.
The Regional Administrator, in consultation with DOJf is
expected to be the primary decision-maker on CERCLA settlement
issues. Administrative settlements for PI/FS are fully the
Regional Administrator's responsibility. OSWFR and OECFi con-
currence continues to be reouired on remedial settlements. In
particular, certain major or precedential issues in Remedial
Design/Remedial Action (RD/RA) negotiations should be referred
for early Headquarters resolution! Those issues include mixed
funding or preauthorization arrangements, broad releases,
d_e minimis settlements, deferred payment schemes, and remedies
that deviate significantly from the Record of Decision (ROD).
More detailed guidance on those issues will be prepared and made
available to you in the coming months.
At the same time such guidance is being prepared, Headauarters
will develop an oversight program that ensures quality and con-.
sistency in Regional program administration, and provides sufficient
feedback to allow future'policy adjustments. Once Guidance is
finalized, some experience has been gained, and the oversight
program is in place, we fully exoect that the Regional Administrator
will have broad authority to reach settlement decisions within the
framework of that guidance. In the meantime, initial delegations
of certain new authorities will be limited by consultation or
concurrence reouirements. After a period of experience, waivers
of concurrence may be made to those Regions which demonstrate
continuous quality and consistency in administering the CFRCLA
enforcement'process. At this point, which is likely to occur
within approximately one year, OSWFR and OECM will largely fill an
oversight role, assuring effective settlements consistent with
applicable auidance and'developing additional guidance as necessary.
That role will also include periodically reviewing whether waivers
of concurrence remain justified.
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OSWER Directive Number 9835.4
-8-
In the interim, a Settlement Decision Committee (SDC) has been
created in Headquarters to provide timely action on issues which
require Headquarters review. The SDC will be made up of the
following individuals:
Chair: Gene A. Lucero, Director, OWPE
Members: Edward E. Reich, Associate Enforcement Counsel for Waste,
OECM
David T. Buente, Chief, Environmental Enforcement Section,
DOJ
Basil G. Constantelos, Director, Waste Management Division,
Region V
Bruce Diamond, Regional Counsel, Region III
Henry L. Longest, Director, Office of Emergency and
Remedial Response (OERR) (when necessary)
Regional representatives to the SDC will be rotated every six
months. The SDC will meet approximately every 3-4 weeks, or more
often if necessary. Its primary responsibility will be to coordin-
ate decisions on policy issues raised by Regions. Most settlement
issues requiring Headquarters review will be resolved at this
level. The Chief, Compliance Branch, CERCLA Enforcement Division
(CED), OWPE will serve as secretary for the SDC and will coordinate
communicating policy decisions to the affected Region, and more
broadly where decisions create precedent which may be transferable
to other sites. The SDC will also monitor Regions' progress towards
finalizing settlements, paying particulary close attention to
pending deadlines.
Regions should access the SDC through either OECM-Waste or
the CERCLA Enforcement Division, OWPE. Regions should be prepared
to provide a brief summary of the issue, options and their
recommendation. Regions may, at their discretion, attend the SDC
meeting to present or elaborate on the issue. (More detailed
procedures will be established by the SDC.)
The Assistant Administrator Review Team which .was established
during April 1986, will become a formal part of the management
review and decision-making process. The group will be chaired by
the AA-OSWER and include the AA-OECM and the Assistant Attorney
General for Lands and Natural Resources, DOJ. The primary function
of this Team will be to provide overall policy direction on
settlement concepts, but will also be available to resolve major
policy issues specific to sites where necessary, as determined by
the SDC. The AA Review Team will meet at least quarterly, but
may convene more frequently, if required by circumstances. As
Chair of the AA Review Team, the AA-OSWER must approve extensions
of negotiations beyond the 30 day authority granted to Regional
Administrators below.
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OSWER Directive Number 9835.4
-9-
Deadline Management
Effective management of negotiations in the CERCLA program
will require increase management attention both in Regions and
Headquarters. In order to facilitate the management overview
that will be necessary, particularly within both the program.and
counsel's office in the Region, OSWER will provide to you periodic
reports from the Integrated SCAP, similar to Attachment I, which
highlight negotiations in progress or planned for the next quarter.
Headquarters staff and management will use these reports to track
the progress of and preparation for negotiations.
Recognizing the complexity of CERCLA settlement discussions,
it is clear that there will be instances where extension of
discussion beyond the moratorium period will be appropriate. The
framework for considering extensions includes:
1. 'Thirty day Extension by the Regional Administrators
2. Additional Extension by AA-OSWER in Exceptional
Circumstances
While the SARA Section 122 provisions related to special
notice and negotiation moratoria are discretionary, EPA policy
will be that those provisions should generally be employed.
Section 122 provides for up to a 120 day moratorium before remedial
action, during which time EPA may not initiate enforcement action
or remedial action. The full moratorium period is conditioned on
receiving a good faith offer from the PRPs within 60 days. In its
absence, the moratorium expires after 60 days. (Note that while
EPA may proceed with design work, as a general rule we will not.)
Where adequate preparation as discussed above has preceded special
notice, Regions should generally be able to conclude negotiations,
or at a minimum, resolve all major issues during that period.
While negotiation extensions should not be encouraged, Regional
Administrators may grant extensions to negotiations when it is
believed that a settlement is likely and imminent. However, this
period should not to exceed 30 days.
Further extension of negotiations beyond that 30 day period
may be approved only by the AA-OSWER. Absent that approval.
Regions are expected to move forward with Fund-financed action,
administrative order or judicial referral where appropriate.
(Note that negotiations may be resumed at any point after referral
and filing of a Section 106 action.) Extensions will be granted
only in rare and extraordinary circumstances and will generally
be for short duration where the expectation is that final agreement
is imminent. Requests for extension should be made by the Regional
Administrator in "writing through the Director, OWPE to the AA-OSWER
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OSWER Directive Number 9835.4
-10-
and should set out succinctly: 1) the length of extension re-
quested; 2) status of negotiations (issues resolved and those
unresolved); 3) justification for extension; and 4) actions to be
taken in the event that negotiations are unsuccessful. The AA-OSWER
will only consider requests for extensions made by the Regional
Administrator and not direct requests made by PRPs.
In order to avoid any misunderstanding, these limitations
should be communicated to the PRPs early in any discussions.
Moreover, the schedule for negotiations, so long as it respects
these deadlines, is always open to adjustment by agreement among
the parties.
As discussed earlier, it is important to recognize that
negotiations are not limited to the 120 day period established by
the special notice provisions of the law. Information requests
and traditional notice letters should be sent as soon as possible,
and initial discussions should almost always occur with PRPs before
the special notice is provided. We are developing more detailed
guidance on notice letters, and the use of the special notice
procedures, and we anticipate circulating this guidance for
comment within the next month.
One of the lessons learned as a result of the limited April-
May 1986 funding during the Superfund slowdown was that there are
benefits derived by having several settlements which are on a
parallel and firm schedule for final resolution. Not only did we
find that firm schedules tend to force issues to resolution, but
it proved to facilitate management review in that sites with
similar issues could be dealt with concurrently. In order to
extend this "clustering" effect, OSWER is considering including
in the FY 88 Strategic Planning and Management System (SPMS)
commitments a target for completion of RD/RA negotiations.
Approach for RI/FS Negotiations
In light of the delegation of RI/FS decisions, much of the
above process is not relevant for RI/FS negotiations. The Agency
continues to encourage PRP conduct of RI/FS in appropriate
circumstances (see Thomas/ Price memorandum "Participation of
Potentially Responsible Parties in Development of Remedial
Investigation and Feasibility Studies", dated March 21, 19«4).
RI/FS settlement issues should generally be resolved by the Regional
Administrator and need not be submitted to the SDC or the AA-level
review group. Section 122 authorizes a 90 day moratorium for
negotiations, conditioned on receiving a good faith offer from
PRPs within 60 days of special notice. Regional Administrators
have discretion to terminate or extend negotiations after 90 days.
However, extension of negotiations beyond an additional 30 days
should be authorized by the Regional Administrator only in
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OSWER Directive Number 9835.4
-11-
limited cases.'- The points made above in Negotiation Preparation
are equally applicable to RI/FS negotiations, with the exception
that negotiation strategies do not require Headquarters review.
SUMMARY
Implementation of these steps to streamline the settlement
process was identified by the Administrator as one of his highest
priorities under SARA. We urge you to give this topic the same
priority in your Regions and provide a commensurate level of
management attention.
If you have any questions about these measures or their
implementation, please contact either of us directly.
Attachment
cc: Superfund Branch Chiefs
Regional Counsel RCRA/CERCLA Branch Chiefs
Enforcement Section Chiefs
Gene A. Lucero s
Henry Longest v
Ed Reich
Jack Stanton
Russ Wyer
David Buente
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-------
-------
4>EPA
United Scales
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Resoonse
DIRECTIVE NUMBER: 9360.0-13
TITLE; Guidance on Implementation of the "Contribute
to Remedial Performance" Provision
APPROVAL DATE: APm 6, 198?
EFFECTIVE DATE: APm 6. 198?
ORIGINATING OFFICE:
B FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OSWER Directive 9200.3-02
Imolementation Strategy for Reauthorized SuPerfund:
Short Term Priorities for Action
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE L
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OSWER Directive 9360.0-1
GUIDANCE ON IMPLEMENTATION OF TKE
"CONTRIBUTE TO REMEDIAL PERFORMANCE" PROVISION
1. INTRODUCTION
Section 104(b) of the Superfund Amendments and Reauthorization Act of
1986 (SARA) amends section 104(a) of CERCLA to include the statement that any
removal action undertaken by the President, or by any other person referred to
in section 122* of the new law, should, to the extent practicable, contribute
to the efficient performance of any long-term remedial action with respect to
the release or threatened release concerned. This guidance document explains
how to implement this provision, and includes guidelines on the applicability
of the requirements, the definition of "contribute to efficient performance,"
exceptions, documentation and coordination. This document should be used in
conjunction with the general removal procedures described in the Superfund
Removal Procedures — Revision Number Two, August 20, 1984, or, as may be
amended.
2. APPLICABILITY
This provision will be applicable to removal actions at all sites —
final National Priorities List (NPL), proposed NPL, and non-NPL. The term
"long-term remedial action" as used in this provision will therefore refer
to a remedial action to be taken by the EPA, State, or a private party.
3. DEFINITION OF "CONTRIBUTE TO EFFICIENT PERFORMANCE"
3.1 Purpose
This provision promotes the performance of removal actions that address
threats more efficiently by considering the overall site cleanup before the
start of the action. To the maximum extent practicable, removal actions
should be designed to avoid wasteful, repetitive, short-term actions that do
not contribute to the efficient, cost-effective performance of long-term
remedial actions to be taken by the EPA, State, or other party. The major
objective of this requirement is to provide maximum protection of public
health and the environment at minimal cost by avoidance of removal restarts.
The focus of this provision is on avoidance of restarts that are due to recur-
ring threats that were not adequately abated in the original removal action,
and threats from deteriorating site conditions that should have been foreseen.
There are other circumstances, however, where removal restarts may be
necessary to meet program goals. For example, a removal action may be a phased
response. The first removal action might involve site stabilization and waste
*Section 122 refers to potentially responsible parties (PRPs) who have entered
into settlements with EPA.
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characterization. The site may then be demobilized and closed out to allow
removal personnel to prepare an analysis of waste treatment/disposal options.
Once an option Is selected, a removal restart would be implemented to complete
the waste disposition phase. In this case, the removal restart would actually
contribute to achieving a more efficient cleanup. Removal restarts may also
occur in an attempt to meet other program goals, such as pursuing responsible
party (RP) cleanups or State assumption of removal action operation and main-
tenance requirements. An RP may take over a removal action from EPA, but EPA
may have to initiate a restart if the RP is not performing an adequate cleanup.
The "contribute to efficient performance" provision was not intended to conflict
with these other program goals. As stated above, the provision was intended
to reduce removal restarts due to inadequate planning at the start of the
action.
3.2 Implementation
To meet the goal of avoiding removal restarts, response personnel must
adequately assess the threats posed by the hazardous substances on a site and
consider how the removal action would most effectively contribute to the long-
term remedy. The following questions should be considered:
1. What is the long-term cleanup plan for the site?
This provision requires removal actions to contribute to the
performance of the "long-term remedial action." At an NPL site,
if the Record of Decision has already been signed, then comparing
the removal action to the remedial cleanup plan is a straight-
forward task. However, for proposed NPL sites and for many final
NPL sites, the remedial action may not have been selected when the
removal action is Implemented. In these cases, response personnel
will be limited to identifying a range of feasible remedial
alternatives. Response personnel need only review existing site
information and use their best professional judgment. Removal and
remedial personnel in the Region must coordinate with each other in
this effort. It is the responsibility of the Region to establish
appropriate coordination mechanisms.
At non-NPL sites, response personnel should, where practicable,
consult with the party performing the long-term response action at
the site (e.g., State, RP) to determine the proposed approach for
the long-term cleanup. It is recognized that it may be more difficult
to ascertain the remedial action at non-NPL sites. Response personnel
should use their best efforts to coordinate with the party performing
the long-term remedy. At many non-NPL sites, there may be no plans
for another party to conduct a remedial action.
2. Which threats will require attention prior to the start of the
long-term action?
The February, 1986 National Contingency Plan (NCP) broadened
removal authority by allowing removal actions to be taken in response
to "threats" rather than just "immediate and significant" threats.
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-3- OSWER Directive 9360.0-1:
This expanded authority will allow a removal action to address any
near-terra threats that may arise prior to the start of the long-term
action, provided the threats meet the removal criteria established in
section 300.65 of the current NCP. Potential threats should be identi-
fied when the first removal action at a site is implemented to avoid
the need for future removal restarts. Therefore, in addition to
identifying immediate threats, response personnel should also identify
potential near-term threats from contaminant migration, deteriorating
site conditions, etc. This assessment is particularly important if a
decision is made to leave surface hazardous substances on site after
the removal action is completed.
Response personnel must identify threats that may arise prior to
the start of long-term actions, but the length of time before long-
term actions will begin will vary from site to site. For example, for
NPL sites where a ROD has been signed, the time frame that response
personnel must consider will be shorter than for NPL sites where the
Remedial Investigation/Feasibility Study (RI/FS) has just been
initiated. Of course, at some NPL sites, the remedial program may
plan to conduct an operable unit during the RI/FS if time permits.
In this case, the time period to consider would again be shorter.
Response personnel should consult with the party performing long-
term action at the site to determine when such action will begin,
and use their best professional judgment.
At non-NPL sites where there are no plans for another party to
undertake a long-term cleanup, all threats and potential threats that
meet the removal criteria in the current NCP should be identified.
3. How far should the removal action go to assure that the threats 'are
adequately abated?
The expanded authority in the 1986 NCP will allow more complete
removal actions to to be taken. Removal actions no longer have to
stop when emergency situations are mitigated, but can continue, or be
initiated, where needed to ensure that near-term threats are adequately
abated. Measures that provide only temporary protection, insufficient
to last until long-term actions begin, should be avoided to the extent
possible. However, as noted above, consideration must also be given to
the availability of other response mechanisms (e.g., State action,
remedial operable unit) to initiate long-term action in a timely manner.
Whether or not the removal action should address all surface
hazardous substances must be decided on a site-by-site basis.
A removal action would be appropriate whenever surface hazardous
substances may present a threat (as established in section 300.65 of
the current NCP) before the start of long-term action. How the
removal action should address the surface hazardous substances will
also depend on site-specific conditions and the long-term cleanup plan.
With the increased emphasis on using alternative technologies and new
restrictions on land disposal, remedial actions may often include on-
site treatment if surface contamination is extensive. In this case,
the removal action may consist of consolidating and stabilizing the
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-4- OSWER Directive 9360.0-1:
substances on site to await treatment. It is important to design the
removal action to ensure that the materials are adequately stabilized.
At other sites, surface hazardous substances may constitute only a
small part of the problem; may not be safely stabilized for a long
period of time; or may be more efficiently addressed as one unit by
immediate treatment or disposal. In these situations, it may be more
appropriate for a removal action to include final disposition of all
surface hazardous substances. The conditions at the site and the long*
term cleanup plan will determine the appropriate scope of the removal
response.
At non-NPL sites where there are no plans for another party to
perform Ions-term remedial action, the threats that meet the removal
criteria in the current NCP should be completely cleaned up, if possible.
The avoidance of removal restarts due to recurring threats is the ultimate
goal. If mitigation of the threats that meet the NCP removal criteria
results in complete site cleanup (i.e., no further Federal response
required), the "contribute to efficient performance" provision is fully
satisfied.
In considering all of the factors described above, the major
determinant of how far the removal action should go to assure threats
are adequately abated will be the statutory limits on removal actions.
Removal actions should contribute to the efficient performance of
remedial actions to the maximum extent practicable given the $2 million/
12 month limits on removal actions. (An exemption to the limits may
be granted where the site qualifies under the "emergency" or
"consistency" waivers.)
With regard to cleanup standards, this provision does not compel
the removal program to lower its cleanup standards. Rather, the pur-
pose of this provision is to improve the design of removal actions
such that after cleanup standards are established for a removal site,
the chosen removal action will address those substances targeted for
cleanup in a manner that avoids the need for removal'restarts.
For example, the removal program has historically used 50 ppm as a
benchmark in determining the appropriate extent of cleanup of PCB-
contaminated soil. The "contribute to efficient performance"
provision would not affect this number, but would direct that the
method chosen to address soil contaminated above 50 ppm should be
designed to avoid the need for removal restarts to the extent
practicable.
4. Is'the proposed removal action consistent with the long-term remedy?
The removal action that is chosen should be consistent with
long-term actions at those sites where further cleanup will be taken.
"Consistent" is defined in its broadest sense and may be characterized
as a range of possible approaches. At one end of the spectrum, removal
actions may be found consistent if they do not hinder or interfere with
the remedial action to be taken. At the other end of the spectrum, removal
actions may be found consistent because they contribute in a positive way
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-5- OSWER Directive 9360.0-13
to the long-term cleanup plan. For example, a removal action to
provide carbon filters to homes with contaminated drinking water as
an interim measure would not Interfere with a long-term remedial plan
to clean up the contaminated aquifer. A removal action to solidify
sludge could, however, hinder a long-term plan to Incinerate the waste
and should, therefore, be avoided if other approaches are feasible.
A removal action to remove surface drums from a landfill could contribute
in a positive way to a remedial plan to clean up the site.
Removal actions may be found consistent if they fall anywhere within
this range; the most appropriate approach will, depend on site-specific
factors. It is recognized that 1n some cases,! the removal action may
create additional work for the remedial action and yet still be the most
appropriate approach for the site. For example, a common removal action
1s capping contaminated soil to prevent migration and human contact in
the time period before remedial actions begin. Although the cap would
have to be removed to implement a long-term plan to excavate and treat
the soil, it may still be the most effective method to mitigate the threat
1n the short-term. Protection of public health and the environment, as
well as technical feasibility, must always be considered. If such an
action is selected, the rationale for selection should be explained 1n the
Action Memorandum. (See Section 5.)
The answers to these four questions will help determine what type of
removal action is needed and how it can be designed to contribute to the
efficient performance of long-term remedial actions. These questions are
provided as general guidelines to indicate the various factors that should
be considered in implementing this provision of SARA. A written analysis of
the answers to each of these questions is not required. The conclusions
should be documented in the Action Memorandum. (See Section FT)
4. EXCEPTION
The only situation where it may not be feasible to consider how the
proposed removal action relates to the long-term remedy is in an emergency.
In such cases, response personnel may need to take whatever immediate
measures are required to protect the public health, welfare, and the
environment.
5. DOCUMENTATION AND COORDINATION
The Action Memorandum should specifically cite the "contribute to
efficient performance" requirement and briefly discuss how the proposed
removal action relates to long-term remedial actions, to the extent
practicable. (See the Superfund Removal Procedures for information on the
preparation of Action Memoranda.) If the proposed removal action completes
the cleanup and no further action is required, this should be so noted. If
only minimal information is available about long-term actions, this should
also be explained. If an emergency existed that precluded an analysis of how
the removal related to long-term actions, this should be noted. Finally, if
compliance with this provision would conflict with other program goals (e.g.,
pursuit of RP cleanup), this shoud be explained.
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-6- OSWER Directive 9360.-13
Compliance with this requirement does not require special approval; the
Action Memorandum should be approved by the established concurrence chain in
the Region or In Headquarters, if appropriate. In making the determination,
however, 1t will be the responsibility of the OSC to coordinate with the party
that will undertake the long-tern remedy (for those sites where additional
cleanup measures will be taken).
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&EPA
United States
Environmental Protection
Agency
Office of
Sohd Waste and
Emergency Response
DIRECTIVE NUMBER: 9350.0-12
TITLE: Guidance on Implementation of the Revised
Statutory Limits on Removal Actions
APPROVAL DATE: Aprils, 1987
EFFECTIVE DATE: April 6. 1987
ORIGINATING OFFICE:
m FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OSWER Directive 92 00.3-02
Implementation Strategy for Reauthorized Superfund:
Short Term Priorities for Action
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE i
-------
OSWER Directive 9360.0-
GUIDANCE ON IMPLEMENTATION OF THE
REVISED STATUTORY LIMITS ON REMOVAL ACTIONS
1. INTRODUCTION
Section 104(e) of the Superfund Amendments and Reauthorization Act of
1986 (SARA) amends section 104(c) of CERCLA to raise the statutory limits
on removal actions. In addition, SARA provides for an additional waiver of
these limits where continued response action is appropriate and consistent
with the remedial action to be taken. This guidance document explains these
new provisions and describes the appropriate procedures for implementing
them. Section 2 addresses the revised limits and Section 3 addresses the
new consistency waiver. This document should be used in conjunction with
the general removal procedures described in the Superfund Removal Procedures
— Revision Number Two, August 20, 1984, or, as may be amended.
2. INCREASED STATUTORY LIMITS
Section 104(e) of SARA raises the statutory limits on removal actions
from $1 million and six months to $2 million and 12 months.
2.1 Delegation of Authority
The Administrator has delegated the authority to approve removal actions
under the new limits in the following manner:
Non-NPL Sites
a. The Regions are delegated the authority to approve removal
actions costing up to $2 million, but Headquarters (HQ)
retains concurrence for actions of "national significance"
or actions which are precedent-setting. Concurrence pro-
cedures and the definition of nationally significant actions
will be set forth in future OSWER directives.
b. HQ retains approval of removal actions costing more than
$2 million. An exemption request must be based on the
three "emergency" criteria in the original Superfund law.
c. The Regions are delegated the authority to approve actions
of any duration, including those that require an exemption
to the 12 month limit.
Proposed/Final NPL Sites
a. The Regions are delegated the authority to approve removal
actions costing up to $2 million.
b. HQ retains approval of removal actions costing more than
$2 million, where the exemption request is based on the
three "emergency" criteria in the original Superfund law.
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-2- OSWER Directive 9360.0.
c. The authority to approve actions costing more than $2
million, where the exemption request is based on the new
consistency waiver discussed in Section 3, will generally
be retained by HQ, but may be delegated to the Regions on
a site-by-site basis.
d. The Regions are delegated the authority to approve actions
of any duration, including those that require an exemption
to the 12 month limit.
2.2 Determination of Limits
For purposes of tracking removal actions with respect to the statutory
limits, existing procedures should be followed. To track the 12 month limit,
the start and completion dates of removal actions must be deterrmined in accord-
ance with current EPA policy. The time limit for an individual removal action
shall expire 12 months from the start date, which is the date on-site removal
work begins. If more than one removal has been undertaken at the same site,
the sum of the time expended for all the removals at the site will count
against the 12 month limit.
The $2 million limit applies to all obligations from the Fund associated
with the removal action as specified in the Superfund Removal Procedures
("Allowable Costs for Removal Actions"). If more than one removal has been
undertaken at the same site, the sum of the total project costs for all the
removals at the site will count against the 52 million limit. Enforcement
costs and section 104(b) activities conducted by £?A or any other Federal
agency do not count toward the $2 million limit.
2.3 Indicators of the Need for a Statutory Exemption
Whenever possible, the On-Scene Coordinator (OSC)* should Identify the
need for a statutory exemption at the start of the removal action. Such early
planning can improve the efficient allocation of Regional resources, and can
avoid added costs and delays that might occur if on-going site work had to be
suspended while awaiting approval of an exemption request.
If the need for a statutory exemption was not anticipated at the start of
the action, the OSC should review the status of removal activities and site
conditions to determine if there will be a need to request a waiver of the 12
month or $2 million limit in each of the following cases:
a. When a total of $1.6 million has been obligated for commercial
cleanup contracts at a site;
b. When 9 months have elapsed since the start of the removal action;
*0r Remedial Project Manager (RPM), as appropriate. For non-time-critical
removal actions at NPL sites that are remedial-lead projects, the RPM should
be substituted for the OSC in references throughout this guidance document.
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-3- OSWER Directive 9360.0-
c. When an estimate has been received from a contractor that exceeds
either 12 months/$2 million; or
d. If at any earlier time during the removal action, the OSC
believes that the 12 month/$2 million limits will be exceeded.
Once the OSC has knowledge that the statutory limits may be exceeded for
project completion, the OSC must prepare an Action Memorandum for a statutory
exemption request. (See Section 2.4.) The OSC should notify the Emergency
Response Division (ERD) as soon as it appears that a $2 million exemption
request is necessary. Such notification will help to expedite the Headquarters
exemption approval process. As noted in Section 2.1 above, for exemption
requests based on the new consistency waiver at proposed and final NPL sites,
OSWER may delegate approval authority to the Region on a case-by-case basis.
2.4 Documentation and Coordination Procedures
For removal actions that will not exceed the statutory limits, a standard
Action Memorandum should be prepared that demonstrates how the site meets the
removal criteria established by section 300.65 of the current National
Contingency Plan (NCP). (See the Superfund Removal Procedures for information
on the preparation of Action Memoranda.) Coordination with Regional enforcement
and remedial personnel should be conducted as appropriate.* Headquarters con-
currence will be required prior to initiating removals at non-NPl sites which
are precedent-setting or of national significance.
For removal actions that initially or ultimately exceed the statutory
limits, an Action Memorandum for a statutory exemption request must be
prepared. The exemption request must cite the statutory criteria for extend-
ing the limits and demonstrate how the criteria are met by site conditions.
Again, coordination with Regional enforcement and remedial personnel should
be conducted as appropriate. Coordination with Regional Counsel must also be
carried out to ensure that the legal findings are adequately demonstrated.
Section 3 of this guidance document explains how to use the new waiver of the
statutory limits available under SARA. If an exemption request will be based
on the new consistency waiver, follow the additional documentation instructions
in Section 3.6.
3. NEW WAIVER TO THE STATUTORY LIMITS
Under the original CERCLA, removal actions had to meet three criteria to
be granted an exemption to the statutory limits: 1) continued response actions
are Immediately required to prevent, limit, or mitigate an emergency; 2) there
is an immediate risk to public health or welfare or the environment; and 3) such
*For remedial-lead removal actions, the RPM should coordinate activities with
Regional removal personnel and obtain removal program concurrence on the Action
Memorandum. In accordance with Superfund Removal Procedures, OSCs and Regional
enforcement personnel should coordinate efforts to identify and compel potentially
responsible parties to perform removal actions.
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-4- OSWER Directive 9360.0-1
assistance will not otherwise be provided on a timely basis. Section 104(e)
of SARA adds a fourth, independent criterion that allows removal actions to
continue beyond the 12 month/$2 million limits if "continued response action is
otherwise appropriate and consistent with the remedial action to be taken."
Because this fourth criterion is independent of the other three, a waiver may be
granted if a removal action satisfies either the first three tests, or ths
fourth test alone.
3.1 Applicability
This new exemption is available only at proposed and final NPL sites.
The original "emergency" waiver will continue to be available at all sites.
3.2 Purpose
The primary purpose of this provision is to enhance EPA's ability to
choose the most effective response mechanism -- removal or remedial — at
proposed and final NPL sites. This waiver allows EPA to implement an operable
unit of a remedial action where a removal action is the most appropriate
approach, but the time or funds necessary to perform a thorough removal
response will exceed the statutory limits. By increasing EPA's flexibility
to initiate a response' action quickly using removal authority, the waiver can
improve efforts to contain and control hazardous substance releases, Increase
the protection of public health and the environment, and decrease total
response costs.
It is important, however, that this waiver be used judiciously because
State cost-sharing is not required for removal actions. The objective of the
waiver is to increase the efficiency of Superfund responses, not to circumvent
State cost-sharing requirements. In general, therefore, use of the waiver
should be limited to removal actions that exceed the $2 million limit by a
reasonable amount, unless a compelling reason exists to perform a more expensive
removal.
3.3 Definition of "Otherwise Appropriate"
Use of this waiver to extend a removal action is "appropriate" in three
situations: 1) to mitigate a near-term threat; 2) to prevent further
migration; or 3) to ensure an efficient response. To some extent, these
objectives are interrelated and if an action meets one requirement, it may
also satisfy a second or third.
To mitigate a near-term threat. At some sites, a threat may not
constitute an emergency, but will require a response over $2 million/12 months
that is more rapid than a remedial action. For example, the presence of hazard-
ous substances in intact drums may not present an immediate threat, but early
removal of the drums can eliminate the possibility of leakage or spillage as
drums deteriorate in the time period before long-term remedial cleanup begins.
Hazardous substances on the surface of a site may often be candidates for early
treatment/disposal at proposed and final NPL sites to reduce the potential for
human exposure and environmental damage.
-------
-5- OSWER Directive 9360.0-
To prevent further migration. A removal action that exceeds the statutory
limits may be appropriate if needed to contain hazardous substances before they
migrate to larger areas and cause more extensive contamination. The excavation
of contaminated soil is a typical removal action designed to both eliminate a
direct contact threat and to prevent further migration of contaminants. Capping
and installation of drainage controls/containment barriers are other examples of
removal actions to reduce contaminant migration.
To ensure an efficient response. It may be more efficient and economical
in some cases to take additional steps as part of an early removal action rather
than wait for long-term remedial cleanup. Such steps can avoid the need for
removal restarts. For example, if a lagoon containing hazardous substances is
close to overflowing, a removal action could be conducted to either lower the
freeboard or completely drain the lagoon. Although lowering the freeboard is the
less expensive removal option and addresses the immediate threat, heavy rains may
cause the lagoon levels to rise again and require a removal restart. Draining
the lagoon might therefore be a more efficient and economical response in the
long run because removing the hazardous substances eliminates the possibility of
a recurring threat.
Contaminated soils provide another example of site conditions which may
warrant a removal action that exceeds the statutory limits to Improve response
efficiency. If a removal action is required to eliminate a threat from highly
contaminated soils, but the site also contains a limited area of low-level soil
contamination, it may be more efficient to address all contaminated soil at one
time as part of a removal action.
A final example of a situation where the waiver may be used to accomplish
a more efficient response is when a removal action over $2 million/12 months
1s needed to implement an alternative technology. Alternative technologies are
often more time-consuming and costly than land disposal, but they can also pro-
vide permanent destruction of wastes, thus accomplishing a more complete response.
For all removal actions, however, the selection of a removal technology must be
justified based on a variety of factors, including technical feasibility, cost,
effectiveness of threat mitigation, etc.
To obtain an exemption to the statutory limits based on this new waiver,
the removal action must be found "appropriate" under at least one of the three
situations described above.
3.4 Definition of "Consistent"
"Consistent" is defined in its broadest sense and may be characterized
as a range of possible approaches. At one end of the spectrum, removal
actions may be found consistent if they do not hinder or interfere with the
remedial action to be taken. At the other end of the spectrum, removal
actions may be found consistent because they contribute in a positive way
to the long-term cleanup plan. For example, a removal action to provide
carbon filters to homes with contaminated drinking water as an interim measure
would not interfere with a long-term remedial plan to clean up the contaminated
aquifer. A removal action to solidify sludge could, however, hinder a long-
term plan to incinerate the waste and should, therefore, be avoided if other
-------
-6- OSWER Directive 9360.0-
approaches are feasible. A removal action to remove surface drums from a
landfill could contribute in a positive way to a remedial plan to clean up tht
site.
Removal actions may be found consistent if they fall anywhere within
this range; the most appropriate approach will depend on site-specific
factors. It is recognized that in some cases, the removal action may create
additional work for the remedial action and yet still be the most appropriate
approach for the site. For example, a common removal action is capping
contaminated soil to prevent migration and human contact in the time period
before remedial actions begin. Although the cap would have to be removed to
implement a long-term plan to excavate and treat the soil, it may still be the
most effective method to mitigate the threat in the short-term. Protection of
public health and the environment, as well as technical feasibility, must
always be considered. If such an action is selected, the rationale
for selection should be explained in the Action Memorandum for a statutory
exemption. (See Section 3.6.)
3.5 Determination of the Remedial Action
This new waiver of the statutory limits requires response personnel to
judge the consistency of the removal action in relation to the "remedial
action to be taken." If the Record of Decision has already been signed for
a remedial action at an NPL site, then comparing the removal action to the
remedial cleanup plan is a straightforward task. However, for proposed NPL
sites and for many final NPL sites, the remedial action may not have been
selected when the removal action is implemented. In these cases, response
personnel will be limited to identifying a range of feasible remedial
alternatives. To the extent possible, the removal action selected should
not preclude any of the feasible remedial alternatives.
A separate written analysis is not required to identify feasible remedial
alternatives. Response personnel need only review existing site information
and use their best professional judgment. It Is the responsibility of removal
and remedial personnel in the Regions to coordinate with each other in this
effort. The conclusions of this review will be documented in the Action
Memorandum, as discussed further in Section 3.6.
Site information for this review may be available from several sources:
1) the remedial site evaluation; 2) the site management plan; 3) the RI/FS,
if started; and 4) the Engineering Evaluation/Cost Analysis (EE/CA), which is
required for non-time-critical removal actions. (The EE/CA is an analysis of
removal options.)
3.6 Documentation and Coordination
To obtain a waiver based on this provision, the Action Memorandum for
the exemption request must specifically cite the "otherwise appropriate and
consistent with remedial action" criterion and demonstrate how it is satisfied
at the site. It would be helpful to reference the site information that was
reviewed, and to briefly summarize the information that was most important in
making the waiver determination.
-------
-7- OSWER Directive 9360.0-1
To facilitate communication and coordination between the removal and
remedial programs, concurrence will be required from a management official
from each program. It will be the responsiblity of each Region to establish
a suitable concurrence chain.
As mentioned earlier, it is also essential for removal and remedial
personnel at the staff level to coordinate with each other when selecting the
proposed removal action.
-------
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MAY 2 Z IS8]
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
Subject: Interim Guidelines for Preparing Nonbinding Preliminary
"VUlocatibns of Responsibility
From: Jj. Winston
assistant Administrator
To: Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
Waste Management Division Directors, Regions I-X
The Interim Guidelines for Preparing Nonbinding Preliminary
Allocations of Responsibility (NBAR guidelines) have been prepared
to fulfill the requirement of section 122(e)(3) of SARA. The
guidelines are the product of a workgroup composed of representa-
tives from OSWER, OERR, OECM, OGC, OPPE, Regions I, II, and III,
the Commonwealth of Pennsylvania, the Department of Justice, and
OWPE.
An NBAR is an allocation by EPA among PRPs of percentages
of total response costs at a site. To summarize the guidelines,
NBARs will be prepared in a two-phased process. In the first
phase, conducted during the RI, information on waste contributions
will be collected and assessed. In the second phase, during the
FS, percentages will be allocated to generators on the basis of
voluir.2. These percentages will then be adjusted as appropriate
on the basis of the ten criteria set forth in the Interim CERCLA
Settlement Policy. Whether to prepare an NBAR at any particular
site is entirely within EPA's discretion. The attached chart
summarizes the NBAR guidelines.
This package includes the following documents:
o Interim Guidelines for Preparing Nonbinding Preliminary
Allocations of Responsibility, and
0 Federal Register notice announcing the Interim Guidelines
and requesting public comment on them.
-------
-2-
Our plan is to finalize the guidelines following pjDlic
comment and some field experience in their application. Please
note that Regional Administrators are authorized to conduct NBARs
by interim delegation 14-8-B.
Attachments
cc: Jack McGraw /
Thomas Adams, OECM ^
Hank Habicht, DOJ
-------
NONBINDING PRELIMINARY ALLOCATION OF RESPONSIBILITY
Start
Or
PRPs Request NBAR &
EPA Finds NBAR May
Promote Settlement
EPA Finds NBAR May
Promote Settlement
NBAR
Phase I
i
Information Collection
and Assessment
Phase II
Allocation
Step I
Volumetric Allocation
of 100% to Generators
Step II
Adjustments Based on
Settlement Criteria
I
Numerical Results
Transmitted to PRPs
-------
OSWER Directive Number 9839.1
INTERIM GUIDELINES FOR PREPARING
NONBINDING PRELIMINARY ALLOCATIONS OF RESPONSIBILITY
I. INTRODUCTION
Section 122(e)(3) of the Superfund Amendments and
Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499,
which amended the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), 42
U.S.C. §§ 9601 e£ seq., requires the Environmental
Protection Agency (EPA) to develop guidelines for
preparing nonbinding preliminary allocations of respon-
sibility (NBARs). As defined in section 122(e)(3)(A),
an NEAR is an allocation by EPA among potentially
responsible parties (PRPs) of percentages of total
response costs at a facility. SARA authorizes EPA to
provide NBARs at its discretion. NBARs are a tool EPA
may use in appropriate cases to promote remedial settle-
ments.
NBARs will allocate 100 percent of response costs
among PRPs. The discretion to prepare an NBAR does
not change the goal of the interim CERCLA settlement
policy, published at 50 Federal Register 5034 (February
5, 1985), to achieve 100 percent of cleanup or costs
in settlement.
In preparing an NBAR, EPA may consider such factors
as volume, toxicity, and mobility of hazardous substances
contributed to the site by PRPs, and other settlement
criteria included in the interim settlement policy (50
Fed. Reg. 5034, 5037-5038). The settlement criteria
include strength of evidence tracing the wastes at a
site to PRPs, ability of PRPs to pay, litigative risks
in proceeding to trial, public interest considerations,
precedential value, value of obtaining a present sum
certain, inequities and aggravating factors, and nature
of the case that remains after settlement.
An NBAR is not binding on the government or PRPs;
it cannot be admitted as evidence or reviewed in any
judicial proceeding, including citizen suits. An NBAR
is preliminary in the sense that PRPs are free to
adjust the percentages allocated by EPA among themselves.
Should EPA decide to prepare an NBAR, it will normally
be prepared during the remedial investigation and
feasibility study (RI/FS), and provided to PRPs as soon
as practicable, but not later than completion of the
RI/FS for the site. The NBAR process will normally be
used only in cases where the discretionary special notice
-------
OSWER Directive Number 9839.1
-2-
procedures of section 122(e) are invoked.
Following presentation of an NBAR to PRPs, PRPs have
an opportunity to offer to undertake or finance cleanup.
EPA need consider only substantial offers. A substantial
offer is defined in part IV of these guidelines. EPA
must provide a written explanation to PRPs if it rejects
a substantial offer based on an NBAR. Under section
122(e)(3)(E), the decision to reject a substantial offer
based on an NBAR is not subject to judicial review.
Section 122(e)(3)(D) states that the costs incurred
by EPA in preparing an NBAR shall be reimbursed by PRPs
whose offer is accepted. If a settlement offer is not
accepted, NBAR preparation costs are considered response
costs under SARA.
II. WHEN TO USE T^E NBAR
The NBAR is meant to promote settlement and, thus,
reduce transaction costs. Generally, EPA will consider
NBAR preparation when it appears that an NBAR may help
to promote settlement'. EPA will give particular con-
sideration to preparing an NBAR whenever a significant
percentage of PRPs at a site request one. What consti-
tutes a significant percentage is a case-specific
determination. Regions should note the existence of
the NBAR process in all pre-RI/FS notice letters, and
indicate its potential availability if requested by a
significant percentage of PRPs within 30 days of receipt
of the notice.
There are certain situations where an NBAR may be
particularly appropriate. For example, in a case that
involves federal agencies as PRPs, preparing an NBAR
in order to ascertain the percentage of federal
agency responsibility is likely to promote settlement
even though a significant percentage of PRPs did not
request it. Similarly, if a state or municipality is
involved at a site as a PRP, NBAR preparation may be
deemed likely to promote settlement. Or, it might be
appropriate to prepare an NBAR in a case with a large
number of PRPs including, perhaps, a sizeable de minimis
contingent. An NBAR may help coalesce a previously
unorganized PRP group into a steering committee, and
thus promote settlement.
There are also situations where an NBAR should
probably not be prepared. For example, it may be
clear very early in the process that there is insufficient
information available on which to base an NBAR,
or that the number of PRPs not de minimis is so small
-------
OSWER Directive Number 9839.1
-3-
that an NBAR would not expedite settlement. In some
cases it may seem that an equitable settlement can be
more expeditiously or effectively achieved without use
of NBAR procedures. There may also be cases where
NBAR preparation is ruled out because an allocation
for the site is already being prepared by or for PRPs.
Again, whether to prepare an NBAR at any particular
site, including any state enforcement lead site, is a
decision within EPA's discretion and will depend on.the
particular circumstances of each case. The decision"
whether to prepare an NBAR at any particular site rests
with the Regional Administrator.
If EPA decides to prepare an NBAR, it will notify
PRPs of that fact in writing as early as is feasible.
An NBAR notification should specify that the decision to
prepare an NBAR is discretionary and is contingent, at
a minimum, upon the availability of sufficient data.
III. HOW TO PREPARE AN NBAR
The purpose of the NBAR is to promote expedited
settlement, thus minimizing transaction costs; an
NBAR must be conducted in a fair, efficient, and pragmatic
manner. For simplicity and other practical reasons,
the allocation process presented here is based primarily
upon volume and the settlement criteria.
EPA considered and rejected models based on toxicity
because of the "complexity of their application and the
lack of agreement among the scientific community about
degrees of toxicity of specific hazardous substances and
synergistic effects. Also, toxicity is usually causally
related to the cost of cleanup for only a few substances
(e.g., PCBs, dioxin).
Still, the allocation process presented here is not
intended to be exclusive. There will, of course, be
cases where other factors, such as toxicity or mobility,
must take priority in the interests of fairness to the
parties. If a Region prefers to use another allocation
process, it should confer with the Director of the
Office of Waste Programs Enforcement prior to such use.
Activities involved in conducting an NBAR fall into two
major categories: information collection and assessment,
and allocation.
Information Collection and Assessment
While aggressive information collection efforts
occur in every case, additional information may be
-------
OSWER Directive Number 9839.1
-4-
necessary for NBAR purposes. Additional information
on actual volume and specific wastes with respect to
each PRP at an NBAR site may be required.
Section 122(e)(3)(B) of SARA authorizes EPA to
subpoena witnesses and documents. Section 104(e) of
CERCLA, as amended by SARA, authorizes EPA to obtain
access to information about a person's ability to pay and
about the nature and quantity of hazardous substances
generated, treated, stored, or disposed of by that person.
These authorities may be used to gather data for an NBAR.
Subpoena of witnesses, authorized by section 122
(e)(3)(B), may be used in some cases as part of the
information collection process. Considerable case-specific
judgment must be exercised about the extent to which
the subpoena authority will be used due to its resource-
intensive nature.
Information being collected must be reviewed by
technical and legal staff as it is received so that
pertinent information may be culled and gaps and
inconsistencies identified. Collection and assessment
efforts should be completed by the end of the RI, so
that the allocation can be completed by the end of the
FS.
On the basis of information collection and assessment
efforts, EPA will determine the waste types and volumes
for each PRP. This volumetric ranking is part of the
information that must be provided with a pre-cleanup
negotiation special notice letter.
The legislative history of section 122 states that
the allocation itself should be made by federal employees.
Consultants or states with cooperative agreements may
assist in the information gathering and assessment
phase of the allocation process. The allocation phase
of an NBAR can be most effectively undertaken by the
same technical and legal personnel who directed the
information collection and assessment efforts.
Allocation
In most cases, waste at a site is commingled and
therefore indivisible. In commingled waste cases, the
first step in the allocation phase of an NBAR is to
allocate 100 percent of responsibility among generators,
based on the volume each contributed. The product of
this step will often differ from the volumetric ranking
provided with special notice letters because any waste
that is attributable to unknown parties is allocated
-------
OSWER Directive Number 9839.1
-5-
to known parties in proportion to their volume.
In a limited number of cases, it is possible to link
particular remedial activities with specific waste types
and volumes. For example, in the easy but rare case
of divisible waste, the cost of removing barrels from
a warehouse on a larger site can be separately attributed
to the contributors of the barrels. Or, the cost
of incinerating soil contaminated solely by PCBs can
be attributed to PCB contributors. Where it is possible
to do so, waste types and volumes that necessitate
particular remedial activities will be fully attributed
to the appropriate contributors.
The second step in the allocation phase of the NBAR
process involves adjustments based on consideration of
the settlement criteria. Any percentage allocated to
a defunct or impecunious party should be reallocated.
Where appropriate, credit may be given for any PRP
contributions to RI/FS and/or removal activities at
the site.
In addition, percentages of responsibility should be
allocated to financially viable owners, operators and
transporters. How much to allocate to such parties
is a case-specific decision based upon consideration
of the settlement criteria.
In general, owner/operator culpability is a significant
factor in determining the percentage of responsibility
to be allocated. For example, a commercial owner and/or
operator that managed waste badly should receive a
higher allocation than a passive, noncommercial landowner
that doesn't qualify as innocent under section 122(g)(l)(B)
of SARA. The relative allocation among successive
owners and/or operators may be determined, where all
other circumstances are equal, by the relative length of
time each owned and/or operated the site. Transporter
allocations may be based on volume, taking into account
appropriate considerations such as packaging and
placement of waste at a site. Detailed guidance on
allocations for transporters, owners, and operators
may be prepared at a later date on the basis of experience
under these interim guidelines.
Again, an NBAR will allocate 100 percent of response
costs, because the goal is to achieve 100 percent of
cleanup or costs in settlement.
IV. OFFERS BASED ON NBARS
Once the technical and legal personnel complete the
-------
OSWER Directive Number 9839.1
-6-
NBAR, the numerical results will be transmitted in
writing to PRPs. EPA will not provide a detailed
explanation for the results, due to the enforcement-
sensitive nature of the decisions involved. EPA will
provide a general explanation of the rationale used in
preparing the NBAR. Data gathered in the information
collection phase may be made available to PRPs.
EPA will provide the NBAR results to PRPs as early
as possible. The sooner PRPs receive the results, the
more time they have to 'organize among themselves and
negotiate with EPA on remedy. A limited period should
be provided for PRPs to digest the NBAR results before
notice for cleanup negotiations is sent.
EPA will attempt to complete the NBAR before selection
of a preferred remedy and public comment, or at least
prior to the Record of Decision (ROD).
Special notice under section 122(e)(2)(A) of SARA
will generally be provided prior to cleanup negotiations
in cases where ar\ NBAR is used. If within 60 days of
special notice for cleanup negotiations, EPA receives
no offer for settlement, it may proceed as usual with
action under section 104 or 106 of CERCLA. If EPA
receives an offer.that is not a substantial/good faith
proposal, it should so notify the PRPs before proceeding
with action under section 104 or 106.
A good faith offer is an offer in writing in which
PRPs make a showing of their qualifications and willingness
to conduct or finance the major elements of the remedy.
A substantial offer must meet three criteria. First,
it must equal or exceed the cumulative allocated shares
of those making the offer. Second, it must amount to a
predominant portion of cleanup costs. Third, it must
be acceptable to EPA in regard to all other terms and
conditions, such as release provisions or dispute
resolution mechanisms.
If EPA receives a substantial/good faith offer
within 60 days of special notice for cleanup, EPA will
provide an additional 60 days for negotiation. If an
agreement for remedial action is reached, it must
be embodied in a consent decree. The State should be
kept apprised of negotiations if it chooses not to
participate. Should negotiations for settlement based
on an NBAR fail, a section 106 unilateral order or civil
action may be used to initiate remedial action. Should
EPA proceed with cleanup under section 104, the NBAR
may still be useful in developing demand letters for a
section 107 cost recovery action.
-------
OSWER Directive Number 9839.1
-7-
De minimis and mixed funding settlements, also
authorized by section 122, may occur in combination with
an NBAR. Whether EPA will accept a mixed funding or
d_e minimis proposal at an NBAR site will depend on the
results of additional analyses specifically designed
to evaluate such proposals.
If EPA rejects a substantial/good faith offer, it
must provide a written explanation to the PRPs, after
consultation with DOJ and review at EPA Headquarters.
In general, rejection of a substantial offer that is
sufficient in amount is likely to be based on failure
to reach agreement on terms and conditions. After a
written explanation for rejection of a substantial/good
faith offer is sent, EPA may proceed under section 104
or 106.
-------
United Slates
Environmental Prelection
Agency
Office of
Solid Waste and
Emergency Response
&EPA
DIRECTIVE NUMBER: 9833.3
TITLE: Administrative Records for Decisions on Selection
of CERCLA Response Actions
APPROVAL DATE: 5-29-87
EFFECTIVE DATE: 5-29-P7
ORIGINATING OFFICE: OWPE/OERR
Q FINAL
D DRAFT
LEVEL OF DRAFT
DA — Signed by AA or DAA
ED B — Signed by Office Director
DC — Review & Comment
REFERENCE (other documents):
SWER OS WE ft OSWER
DIRECTIVE DIRECTIVE Dl
-------
(Jnneo States environmental rroiecnon Agency
Washington DC 20460
OSWER Directive Initiation Request
t Directive Number
9833.3
2 Originator Information
Name of Contaci Person
Deborah L. Wolpe
Mail Code
1 WH-527
Office
OWPE/OERR
3 Tile
Administrative Records for decisions on Selection ofCSERCLA Response Actions
A Summary of Direclive (include bnel statement ot purpose)
Inform Regions of steps which must be implemented toassemble administrative
records for selection of response actions. Gives suggested list of
documents which should be included in the records.
5 Keywords
administrative record/selection of response action/
6a Does This Directive Supersede Previous Directiveis)'
b Does It Supplement Previous Directivefsp
u
No
Yes What directive (number, title)
Yes What directive (number, title}
7 Draft Level
A - Signed by AA/DAA
B •• Signed by Office Director
C - For Review & Comment
0 - In Development
8. Document to be distributed to States by Headquarters? LaJ Yes
This Request Meets OSWER Directives System Format Standards.
9 Signature of Lead Office Directives Coordinator
&/asugt^j^.--rrt '. £jJ<^*ts«-r>~&-
10 Name and Title of Approving Offtcial
Date
-5/£t>/r?
Date
1
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
-------
y*"^
(A)
X«X
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
29 1987
OSWER Directive 9833.3
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Administrative Records for Decisions on Selection of
CERCLA Response Actions s
FROM: Gene A. Lucero, Director (O0/JL jr\ ..
Office of Waste Programs Enforcemejit
Henry L. Longest II, Director
Office of Emergency and Remedia
nse (WH-548)
TO:
Addressees
As you are aware, section' 11300 of the Comprehensive Environ-
mental Response, Compensation, and Liability Act (CERCLA), as
amended by the Superfund Amendments and Reauthorization Act (SARA),
requires that the Agency establish administrative records containing
information used by the Agency to make its decision on selection
of response action under CERCLA. Section 113 also requires that
the records be kept "at or near the facility at issue." This
memorandum is to inform you of steps which must be implemented by
the Regions immediately to assemble administrative records, if
not already done.
As the section 113 requirement for the establishment of
records is in effect, the Regions should ensure that information
on selection of a response action is assembled now, and is avail-
able for public, including potentially responsible party, review
both in the Regional Office and "at or near the facility at
issue." This requirement applies to all sites for which a remedial
investigation has begun. It also applies to removal actions
where an Action Memorandum has been signed or public comment has
been solicited.
The site files will contain information on potentiaflyresponsible
party liability and cost documentation, for example, which is not
included in the administrative record. The administrative record
will also overlap with the community relations information in the
information repositories, the Federal facility docket, and the
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OSWER Directive 9833.3
-2-
NPL listing docket. A separate memorandum concerning setting up
site files, and long term management of administrative records
is under development. At this time, as you assemble and
reproduce administrative records, vou should keep other records
management matters in mind.
Three million dollars were available in contract Funds
for records management in FV 'R7, some of which Ls still available.
Additional funds averaging about Si 00,000 per Region have been
earmarked this fiscal year specifically to assist in setting up
administrative records. The Regions should submit a list of
priority sites at which they will require assistance in compiling
a record, and an estimate of the cost of such activities. Top
priority should be given to those sites fqr which the Agency
will be signing Records of Decision (ROOs) in this fiscal year,
and those for which a remedial investigation/feasibility studv
(Rl/FS) is currently available for public comment. The next
highest priority includes those sites where a POD has been signed
and the PRPs are not undertaking the remedial design (RT» or
remedial action (RA); sites where a RI/FS workplan is available:
and sites where a removal action is underway. Third priority
sites are those where a ROD has been signed and PRPs are undertaking
the remedial design or remedial action.
The Regions should also list sites which presently have
funding for an administrative record. A coordinator should
be designated in each Rep.ion to manage the compilation of
priority sites and oversee, the compilation of these administrative
records. Pleas* submit your list of priority sites and contract
needs within two weeks to Linda Boornazian in OWPF. She can >ie
reached at 382-4830.
The Agency plans to propose regulations establishing proce-
dures for the administrative records. These administrative
record regulations are expected to be issued in coniunction with
the proposed NCP revisions. The upcoming proposed regulations
will serve as interim guidance under SARA for the creation of
adequate administrative records for response action decisions.
We have been working with representatives from the Regions on
these regulations.
During the course of developing these regulations, numerous
policy issues have surfaced. These issues are currently being
addressed at headquarters. This memorand\im will be followed
shortly by a memorandum addressing issues related to the admini-
strative record requirements, in greater detail. The upcoming
memorandum will summarize the Agency's current direction on these
administrative record issues. We will also be addressing the
administrative record requirements in the Superfund Record of
Decision Workshops in June and July of 1987, emphasizing information
on FY '87 RODs.
-------
OSWER Directive 9833.3
Attached is a list of items which, if generated for a
particular site, should be included in the administrative record.
Please note that information upon which the decision on selection
of response action is based must be included in the record.
The Agency will be refining this list. The upcoming memorandum
will go into much greater detail on all aspects of the administra-
tive record. Until then, the above lists of documents should be
used as an indication of information which should be placed in the
administrative record.
Please call Deborah Wolpe of OWPE at FTS 475-8235 if you
have any questions.
Attachment
Addressees:
Directors, Waste Management Division, Reg. I, IV, V, VII, VIII
Director, Emergency and Remedial Response Division, Reg. II
Directors, Hazardous Waste Management Division, Reg. Ill, VI
Director, Toxics and Waste Management Division, Reg. IX
Director, Hazardous waste Division, Reg. X
Regional Counsels, Regions I-X
Superfund Branch Chiefs, Regions I-X
Superfund Section Chiefs, Regions I-X
cc: Lloyd Guerci, OWPE
Russel wyer, HSCD
Tim Fields, ERD
Edward Reich, OECM
Mark Greenwood, OGC
Nancy Firestone, DOJ
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ATTACHMENT
Documents for Removal Actions*
- QA/QC'd~raw data**
- Removal preliminary assessment
- Site investigation report
- Any other factual data relating to reasons why we selected a
particular removal action at the site
- Chain of custody forms**
- Engineering evaluations
- Cost analysis documents
- Final data summary sheets of technical models used to evaluate
the site
- Action Memorandum
- ATSDR health assessment (draft versions not included)
- Memoranda on major site specific policy and legal interpretations
(e.g., off-site disposal availability, compliance with other
environmental statutes, special coordination needs, e.g., dioxin,
provisions for State assumption of post-removal site control)
- Information from telephone logs relied on in selecting response
- New technical information presented by PRPs during negotiations
- Guidance documents and technical sources ***
- Community Relations Plan
- Public comments, if any
- Responses to significant comments
- Copies of any notices, including notices to PRPs, States, Natural
Resources Trustees, notices of availability of information
- Documentation of meetings during which the public and PRPs present
information upon which the agency bases its decision on selection
of a removal action (may be after-the-fact restatement of issues raise
- Administrative Orders
- Consent decree(s), comments and responses to comments on the
consent decree
- Affidavits or other sworn statements of expert witnesses
- Amendments to Action Memorandum, including ceiling increase Action
Memoranda, and Action Memoranda on technical changes; information
which caused the agency to change the decision, comments, and
responses to comments
* Drafts and internal memoranda are not included in the record
unless they contain information used to base the decision
which the final document does not contain, or the decision-
maker chooses to base the decision on a draft document.
** QA/OC'd raw'data (e.g. , results of QC runs, chromatograms,
mass spectra) and chain of custody forms are part of the record and
available to the public, but need not be in the same physical
location as the record in the Regional office or in the information
repository at or near the site.
*** Guidance documents and technical sources may be kept in a
central compendium by the docket clerk. They need not be in
each site-specific record. The index to the record should
reference titles of relevant guidance documents and technical
sources.
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-a-
- Documentation of opportunity for consultation with the State
on the scope of the removal action; comments from State, if any,
and responses to substantive comments
- Index of documents in the record
(Expedited Response Actions should be treated like removals for
purposes of compiling an administrative record; for purposes oE
the administrative record, RI/FSs should be treated as a phase
of a remedial action, and not a removal)
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JUi
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V
5 IfNITFD STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUN-5I98T
Offire OF
f NFORCIMFNT AND
COMPLIASCt MONITORING
MEMORANDUM
SUBJECT: Entry and Continued Access Under CERCLA
FROM: Thomas L. Adams, Jr. V IN \ V Q
Assistant Administrator *r^3"V-*3>>oL, Nny . v->* <-*^SL>-=»V
TO: Regional Administrators I-X
Regional Counsels I-X
I. INTRODUCTION
This memorandum sets forth EPA's policy on entry and
continued access to facilities by EPA officers, employees, and
representatives for the purposes of response and civil enforce-
ment activities under CERCLA. I/ In short, the policy recommends
that EPA should, in the first Tnstance, seek to obtain access
through consent. Entry on consent is preferable across the full
range of onsite activities. If consent is denied, EPA should
use judicial process or an administrative order to gain access.
The appropriate type of judicial process varies depending on
the nature of the onsite activity. When entry is needed for
short-term and non-intrusive activities, an ex parte. judicial
warrant should be sought. In situations involving long-term or
intrusive access, EPA should generally file suit to obtain a
court order.
The memorandum's first section addresses the recentlv amended
access provision in CERCLA. The memorandum then sets forth EPA
policy on obtaining entry and the procedures which should be
used to implement this policy, including separate discussions on
consent, warrants, court orders, and administrative orders.
I/ This policy does not address information requests under
Section 104(e)(2).
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II. STATUTORY AUTHORITY
EPA needs access to private property to conduct investiga-
tions, studies, and cleanups. The Superfund Amendments and
Reauthdfization Act of 1986 (SARA) explicitly grants EPA 2/ the
authority to enter property for each of these purposes. Section
104(e)(1) provides that entry is permitted for "determining the
need for response, or choosing or taking any response action
under this title, or otherwise enforcing the provisions of this.
title."
SARA also establishes a standard for when access may be
sought and defines what property may be entered. EPA may exercise
its entry authority "if there is a reasonable basis to believe
there may be a release or threat of a release of a hazardous
substance or pollutant or contaminant." S 104(e)(1). SARA,
however, does not require that there be a release or threatened
release on the property to be entered. ^/ Places and properties
subject to entry under Section 104(e) include any place any
hazardous substance may be or has been generated, stored, treated,
disposed of, or transported from; any place a hazardous substance
has or may have been released; any place which is or may be
threatened by the release of a hazardous substance; or any place
where entry is needed to determine the need for response or the
appropriate response, or to effectuate a response action under
CERCLA. § 104(e)(3). EPA is also authorized to enter any place
or property adjacent to the places and properties described in
the previous sentence. § 104(e)(1).
EPA is granted explicit power to enforce its entry authority
in Section 104(e)(5). Under that provision EPA may either issue
an administrative order directing compliance with an entry request
or proceed immediately to federal district court for injunctive
relief. Orders may be issued where consent to entry is denied.
Prior to the effective date of the order, EPA must provide such
notice and opportunity for consultation as is reasonably appro-
priate under the circumstances. If EPA issues an order, the
order can be enforced in court. Where there is a "reasonable
basis to believe there may be a release or threat of a release of
a hazardous substance or pollutant or contaminant," courts are
instructed to enforce an EPA request or order unless the EPA
2_/ Although CERCLA and SARA confer authority upon the President
that authority has been delegated to the EPA Administrator.
Exec. Order No. 12580, § 2(g) and (i), 52 Fed. Reg. 1923 (1987).
3/ The House Energy and Commerce bill at one point contained
this limitation. H.R. Rep. No. 99-253 Part 1, 99th Cong,. 1st
Sess., 158 (1985). This limitation, however, was dropped prior to
introduction of the bill for floor debate. See H.R. 2817, 99th
Cong., 1st Sess., 131 Cong. Rec. H10857 (December 4, 1985).
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- 3 -
"demand for entry or inspection is arbitrary and capricious, an
abuse of discretion, or otherwise not in accordance with law."
§ 104(e)(5). The legislative history makes clear that courts
should enforce an EPA demand or order for entry if EPA's finding
that there is a reasonable basis to believe there may be a release
or threat of release is not arbitrary and capricious. 132 Cong.
Rec. S14929 (October 3, 1986) (Statement of Sen. Thurmond); 132
Cong. Rec. H9582 (October 8, 1986) (Statement of Rep. Glickman).
See United States v. Standard Equipment, Inc.. No. C83-252M (W.D.
Wash. November 3, 198FTIIn addition, a penalty not to exceed
$25,000/day may be assessed by the court for failure to comply
with an EPA order or the provisions of subsection (e).
Finally, Section 104(e)(6) contains a savings provision
which preserves EPA's power to secure access in "any lawful
manner." This broad savings provision is significant coming
in the wake of the Supreme Court's holding that:
When Congress invests an agency with enforce-
ment and investigatory authority, it is not
necessary to identify explicitly each and every
technique that may be used in the course of
executing the statutory mission.
. . . Regulatory or enforcement authority
generally carries with it all the modes of
inquiry and investigation traditionally employed
or useful to execute the authority granted.
Dow Chemical Co. v. United States, 90 L.Ed. 2d 226, 234 (1986). 4/
One lawful means of gaining access covered by this paragraph is.
use of judicially-issued warrants. See S. Rep. No. 99-11, 99th
Cong. 1st Sess. 26 (1985).
In numerous instances prior to the passage of SARA, EPA
obtained court rulings affirming its authority to enter property
to conduct CERCLA activities. 5_/ Following enactment of SARA,
4/ See also, Mobil Oil Corp. v. EPA. 716 F.2d 1187, 1189 (7th
~ cTr.~T9T3). cert, denied, 466 U.S. 980 (1984) (EPA authority
to sample effluent under Section 308 of the Clean Water Act
broadly construed); CEDs. Inc. v. EPA, 745 F.2d 1092 (7th Cir.
1984), cert, denied. 471 U.S. 1015"TT985).
5_/ United States v. Pepper Steel and Alloy. Inc.. No. 83-1717-
CIV-EPS (S.D. Fla. October 10. 1986); Bunker Limited Partnership
v. United States, No. 85-3133 (D. Idaho October 21. 1985); United
States v. Coleman Evans Wood Preserving Co., No. 85-211-CIV-J-16
(M.D. Fla. June 10, 1985); United States""v7 Baird & McGuire
Co. No. 83-3002-Y (D. Mass. May 2, 1985); United States v. United
Nuclear Corp.. 22 ERC 1791, 15 ELR 20443 (D.N.M. April 18, 1985).
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several courts have ordered siteowners to permit EPA access.
United States v. Long, No. C-l-87-167 (S.D. Ohio May 13, 1987);
United States v. Dlckerson. No. 84-76-VAL (M.D. Ga. May 4, 1987);
United States v. Standard~Equipment, Inc.. No. C83-252M (W.D.
Wash. Nov. 37 1985TIFurther, the one adverse ruling on EPA's
right of access has been vacated by the Supreme Court. Outboard
Marine Corp. v. Thomas, 773 F.2d 883 (7th Cir. 1985), vacated,
93 L. Ed. 2d 695 (1986).
III. EPA ACCESS POLICY
EPA needs access to sites for several types of activities,
including:
0 preliminary site investigations;
0 removal actions;
0 RI/FSs; and
0 remedial actions.
Within each of these categories, the scope of the work and the
time needed to complete that work may vary substantially. This
memorandum sets Agency policy on what means should be used to
gain access over the range of these various activities.
EPA may seek access through consent, warrant, administrative
order, or court order. Consent is the preferred means of gaining
access for all activities because it is consistent with EPA policy
of seeking voluntary cooperation from responsible parties and
the public. In certain circumstances, however, the Region should
consider obtaining judicial authorization or issuing an admini-
strative order in addition to obtaining consent. For example,
where uncertainty exists whether a siteowner will continue to
permit access over an extended period, reliance on consent alone
may result in a substantial delay if that consent is withdrawn.
When consent is denied, EPA should seek judicial authori-
zation or should issue an administrative order. If the judicial
route is chosen, EPA may seek an ex parte warrant or a court
order. Warrants are traditionally granted for short-term entries.
Generally, warrants should not be used when the EPA access will
involve long-term occupation or highly intrusive activities.
Clearly, warrants are appropriate for preliminary site investiga-
tions. On the other hand, because of the long, involved nature
of remedial actions, access for such projects should be sought
through a request for a court order. Neither removals nor RI/FSs,
however, can be rigidly matched with a given judicial access
procedure. Depending on the activities to be undertaken and the
circumstances at the site, either a warrant or a court order may
be appropriate.
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In deciding whether to use a warrant or a court order when
access is needed for a removal or to conduct a RI/FS, the follow-
ing general principles should be considered. First, if the
activity will take longer than 60 days a court order normally is
appropriate. Second, even if the activity will take less than 60
days, when the entry involves removal of large quantities of soil
or destruction of permanent fixtures, a court order may again be
appropriate. Finally, warrants should not be used if EPA action
will substantially interfere with the operation of onsite business
activities. These issues must be resolved on a case-by-case basis.
If EPA needs to gain access for a responsible party who has
agreed to undertake cleanup activities under an administrative
order or judicial decree, EPA may, in appropriate circumstances,
designate the responsible party as EPA's authorized representative
solely for the purpose of access, and exercise the authorities
contained in Section 104(e) on behalf of the responsible party.
Such a procedure may only be used where the responsible party
demonstrates to EPA's satisfaction that it has made best efforts
to obtain access. A further condition on the use of this procedure
is that the responsible party agree;to indemnify and hold harmless
EPA and the United States for all claims related to injuries and
damages caused by acts or omissions of the responsible party.
The responsible party should also be advised that the expenses
incurred by the government in gaining access for the responsible
party are response costs for which the responsible party is liable.
Before designating any responsible party as an authorized repre-
sentative, the Region should consult with the Office of Enforcement
and Compliance Monitoring.
IV. ACCESS PROCEDURES
A. Entry on Consent
1. General Procedures
The following procedures should be observed in seeking
consent:
Initial Contact. Prior to visiting a site, EPA personnel 6/
should consider contacting the siteowner to determine if
consent will be forthcoming. EPA personnel should use this
opportunity to explain EPA's access authority, the purpose
for which entry is needed, and the activities which will be
conducted.
6/ As used in this guidance, the term "EPA personnel" includes
~~ contractors acting as EPA's authorized representatives.
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- 6 -
Arrival. EPA. personnel should arrive at the site at a
reasonable time of day under the circumstances. In most
instances this will mean during normal working hours. When
there is a demonstrable need to enter a site at other times,
however, arrival need not be limited to this timeframe.
Entry must be reasonable given the exigencies of the situation,
Identification. EPA personnel should show proper identifi-
cation upon arrival.
Request for Entry. In asking for consent, EPA personnel
should state the purpose for which entry is sought and
describe the activities to be conducted. EPA personnel
should also present a date-stamped written request to the
owner or person-in-charge. A copy of this request should
be retained by EPA. Consent to entry must be sought
from the owner ]_/ or the person-in-charge at that time.
If practicable under the circumstances, consent to entry
should be memorialized in writing. A sample consent form is
attached. Although oral consents are routinely approved by the
courts, a signed consent form protects the Agency by serving as
a permanent record of a transaction which may be raised as a
defense or in a claim for damages many years later. If a site-
owner is unwilling to sign a consent form but nonetheless orally
agrees to allow access, EPA should document this oral consent by
a follow-up letter confirming the consent.
Since EPA contractors often are involved in gaining access
in the first instance, the Regions should ensure that their
contractors are acquainted with these procedures.
2. Denial of Entry
If consent is denied, EPA personnel or contractors, before
leaving, should attempt to determine the grounds for the denial.
EPA personnel, however, should not threaten the siteowner with
penalties or other monetary liability or make any other remarks
which could be construed as threatening. EPA personnel may
explain EPA's statutory access authority, the grounds upon which
this authority may be exercised, and that the authority may be
enforced in court.
II If EPA's planned site activities will not have a physical
" effect on the property, EPA generally need not seek consent
from the owner of leased property where the lessee is in pos-
session. The proper person in those circumstances is the lessee,
But where EPA entry will have a substantial physical effect on
the property, both the lessee and the property-owner should be
contacted since in this instance interests of both will be
involved.
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- 7 -
3. Conditions Upon Entry
Persons on whose property EPA wishes to enter often attempt
to place conditions upon entry. EPA personnel should not agree
to conditions which restrict or impede the manner or extent of an
inspection or response action, impose indemnity or compensatory
obligations on EPA, or operate as a release of liability. The
imposition of conditions of this nature on entry should be treated
as denial of consent and a warrant or order should be obtained.
See U.S. EPA, General Counsel Opinions, "Visitors' Release and
Hold Harmless Agreements as a Condition to Entry of EPA Employees
on Industrial Facilities," Gen'l and Admin, at 125 (11/8/72).
If persons are concerned about confidentiality, they should be
made aware that business secrets are protected by the statute
and Agency regulations. 42 U.S.C. § 9604(e); 40 C.F.R. § 2.203(b).
EPA personnel should enter into no further agreements regarding
confidentiality.
B. Warrants
1. General Procedures
To secure a warrant, the following procedures should be
observed:
Contact Regional Counsel. EPA personnel should discuss
with Regional Counsel the facts regarding the denial of
consent or other factors justifying a warrant and the
circumstances which give rise to the need for entry.
Contact Department of Justice. If after consultation with
Regional Counsel a decision is made to seek a warrant, the
Regional Counsel must contact directly the Environmental
Enforcement Section in the Land and Natural Resources Division
at the Department of Justice. B/ The person to call at
the Department is the Assistant Chief in the Environmental
Enforcement Section assigned to the Region. The Assistant
Chief will then arrange, in a timely manner, for the matter
to be handled by either an Environmental Enforcement Section
attorney or a U.S. Attorney. The Region must send to the
Environmental Enforcement Section, by Magnafax or other
8/ This procedure is necessary to comply with internal
~ Department of Justice delegations of authority. Referral
to a local U.S. Attorney's office is not sufficient for CERCLA
warrants. The Environmental Enforcement Section of the Department
of Justice must approve all warrant applications. (See Memorandum
from David T. Buente, Jr. to All Environmental Enforcement
Attorneys, "Procedures for Authorizing Applications for Civil
Search Warrants Under CERCLA" (4/3/87) attached).
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- 8 -
expedited means, a draft warrant application and a short
memorandum concisely stating why the warrant is needed.
Prepare Warrant Application. The warrant application must
contain the to 1lowing:
1) a statement of EPA's authority to inspect;
(see § II, supra)
2) a clear identification of the name and location
of the'site and, if known, the name(s) of the
owner and operator of the site;
3) a statement explaining the grounds for a finding
of a reasonable basis for entry ((I.e., a reasonable
basis to believe that there may be a release or
threatened release of a hazardous substance or
pollutant or contaminant) and the purpose for entry
(i.e., determining the need for response, or choosing
or taking any response action, or otherwise enforcing
CERCLA);
4) affidavits supporting the asserted reasonable basis
for entry and describing any attempts to gain access
on consent, if applicable; and
5) a specific description of the extent, nature, and
timing of the inspection;
Following preparation of the warrant application, the
Justice Department attorney will file the application with
the local U.S. Magistrate.
EFA may ask the Justice Department attorney to seek the
assistance of the United States Marshals Service in executing the
warrant where EPA perceives a danger to the personnel executing
the warrant or where there is the possibility that evidence will
be destroyed.
2. Reasonable Basis for Entry
A warrant for access on a civil matter may be obtained upon
a showing of a reasonable basis for entry. This reasonable
basis may be established either by presenting specific evidence
relating to the facility to be entered or by demonstrating that
the entry is part of a neutral administrative inspection plan.
A specific evidence standard is incorporated in SARA as a
condition on EPA's exercise of its access authority: EPA must
have "a reasonable basis to believe there may be a release or
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threat of a release of a hazardous substance or pollutant or
contaminant." S 104(e)(1). SARA's express specific evidence
standard is consistent with how courts have formulated the
specific evidence test in the absence of statutory guidance.
E.g., West Ppint-Pepperell, Inc. v. Donovan, 689 F. 2d 950, 958
(11th Cir. 19 82 J(there must be a "showing of specific evidence
sufficient to support a reasonable suspicion of a violation").
In drafting a warrant application, conclusory allegations
regarding the specific evidence standard under subsection 104(e)
will not suffice. Courts generally have refused to approve
warrants where the application contains mere boilerplate asser-
tions of statutory violations. Warrant applications have been
granted, on the other hand, where the application contained
detailed attestations by government officials or third-party
complaints which have some indicia of reliability. Ideally,
EPA warrant applications should contain an affidavit of a person
who has personally observed conditions which indicate that there
may be a release or threat of a release of a hazardous substance.
If they are available, sampling results, although not required,
should also be attached. Warrant applications based on citizen,
employee, or competitor complaints should include details that
establish the complainant's credibility. 9_/
C. Court Orders
The provisions in CERCLA authorizing EPA access may be
enforced by court order. To obtain a court order for entry, the
Region should follow the normal referral process; If only access
is required, the referral package can obviously be much abbrev-
iated. If timing is critical, EPA HQ will move expeditiously
and will refer the case orally if necessary. The Regions, how-
ever, should attempt to anticipate the sites at which access may
prove problematic and should allow sufficient lead time for the
referral process and the operation of rhe courts. The Regions
should also not enter lengthy negotiations with landowners over
access. EPA and DOJ are prepared to litigate aggressively to
establish EPA's right of access.
9/ If information gathered in a civil investigation suggests
~ that a criminal violation may have occurred, EPA personnel
should consult the guidance on parallel proceedings. (Memorandum
from Courtney Price to Assistant Administrators et al., "Policy
and Procedures on Parallel Proceedings at the Environmental
Protection Agency" (1/23/84)). Use of CERCLA1s information-
gathering authority in criminal investigations is addressed in
separate guidance. (Memorandum from Courtney M. Price to Assistant
Administrators et al., "The Use of Administrative Discovery
Devices in the Development of Cases Assigned to the Office of
Criminal Investigations" (2/16/84)).
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Prior to seeking a court order, EPA should request access,
generally in writing, and assemble the record related to access.
The showing necessary to obtain a court order is the same as for
obtaining a warrant: EPA must show a reasonable basis to believe
that there may be a release or a threat of a release of a hazardous
substance or pollutant or contaminant. An EPA finding on whether
there is reason to believe a release has occurred or is about to
occur must be reviewed on the arbitrary and capricious standard.
§ 104(e)(5) (B)(i). If the matter is not already in court, EPA
must file a complaint seeking injunctive and declaratory relief.
Simultaneous to filing the complaint, EPA may, if necessary,
file a motion, supported by affidavits documenting the release
or threatened release, requesting an immediate order in aid of
access. If the matter is already in litigation, EPA may proceed
by motion to seek an order granting access. 10/
In a memorandum supporting EPA's request for relief it
should be made clear that by invoking judicial process, EPA is
not inviting judicial review of its decision to undertake response
action or of any administrative determinations with regard to the
response action. Section 113(h) of SARA bars judicial review
of removal or remedial action except in five enumerated circum-
stances. A judicial action to compel access is not one of the
exceptions. Statements on the floor of the House and the Senate
confirm that EPA enforcement of its access authority does not
provide an opportunity for judicial review of response decisions.
Senator Thurmond, chairman of the Judiciary Committee, remarked
that when EPA requests a court to compel access "there is no
jurisdiction at that time to review any response action . . .
10/ Parenthetically, it should be noted that the broad equitable
power granted to courts in Section 106 can also be relied
on to obtain a court order. An additional source of authority
for courts in this regard is the All Writs Act, 28 U.S.C. § 1651.
The Act authorizes federal courts to "issue all writs necessary
or appropriate in aid of their respective jurisdictions . . . ."
28 U.S.C. § 1651. This authority "extends under appropriate
circumstances, to persons who, though not parties to the original
action or engaged in wrongdoing are in a position to frustrate
the implementation of a court order . . . ." United States v. New
York Telephone Co.. 434 U.S. 159, 174 (1977).Thus, the All Writs
Act may prove useful as a means of compelling persons not a party
to a consent decree to cooperate with EPA and other settling
parties in execution of the decree. The use of the All Writs
Act, however, may be limited in light of the Supreme Court's
interpretation of the Act in Pennsylvania Bureau of Correction v.
United States Marshal Service, 88 L. Ed. Zd 189 (1985).
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- 11 -
[T]he court may only review whether the Agency's conclusion that
there is a release or threatened release of hazardous substances
is arbitrary or capricious." 132 Cong. Rec. S14929 (October 3,
1986) (Statement of Sen. Thurmond); 132 Cong. Rec. 119582
(October 8, 1986) (Statement of Rep. Glickman); see United States
v. Standard Equipment, Inc.. No. C83-252M (W.D. TJash. Nov. 3, 1986).
D. Administrative Orders
If a siteowner denies an EPA request for access, EPA may
issue an adminstrative order directing compliance with the
request. § 104(e)(5)(A). Each administrative order must include
a finding by the Regional Administrator that there exists a
reasonable belief that there may be a release or threat of release
of a hazardous substance and a description of the purpose for the
entry and of the activities to be conducted and their probable
duration. The order should indicate the nature of the prior
request for access. Further, the order should advise the.re-
spondent that the administrative record upon which the order was
issued is available for review and that an EPA officer or employee
will be available to confer with respondent prior to the effective
date of the order. The length of the time period during which
such a conferences may be requested should be reasonable under
the circumstances. In deciding what is a reasonable time period,
consideration should be given to the interference access will cause
with onsite operations, the threat to human health and the environ-
ment posed by the site, and the extent of prior contacts with the
respondent. The order should advise the respondent that penalties
of up to $25,000 per day may be assessed by a court against any
party who unreasonably fails to comply with an order. S 104(e)(5).
Following the time period for the conference and any conference,
the issuing official should send a document to the respondent
summarizing any conference, EPA's resolution of any objections,
and stating the effective date of the order.
If, following issuance of an administrative order, the site-
owner continues to refuse access to EPA, the order may be enforced
in federal court. EPA should not use self-help to execute orders.
Courts are required to enforce administrative orders where there
is a reasonable basis to believe that there may be a release or
threat of a release of a hazardous substance. EPA's determination
in this regard must be upheld unless it is arbitrary and capricious
§ 104(e)(5)(B)(i). EPA will seek penalties from those parties who
unreasonably fail to comply with orders.
All administrative orders for access must be concurred on by
the Office of Enforcement and Compliance Monitoring prior to
issuance.
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DISCLAIMER
The policies and procedures established in this document are
intended solely for the guidance of government personnel. They
are not intended, and cannot be relied upon to create any rights,
substantive or procedural, enforceable by any party in litigation
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.
Attachments
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CONSENT FOR ACCESS TO PROPERTY
Name:
Address of Property:
I consent to officers, employees, and authorized
representatives of the United States Environmental Protection
Agency (EPA) entering and having continued access to my
property for the following purposes:
[the taking of such soil, water, and air samples as may
be determined to be necessary;)
[the sampling of any solids or liquids stored or disposed
of on site;]
[the drilling of holes and installation of monitoring wells
for subsurface investigation;]
[other actions related to the investigation of surface or
subsurface contamination;]
[the taking of a response action including . . . .]
I realize that these actions by EPA are undertaken pursuant
to its response and enforcement responsibilities under the
Comprehensive Environmental Response, Compensation and Liability
Aet (Superfund), 42 U.S.C. § 9601 et seq.
This written permission is given by me voluntarily with
knowlege of my right to refuse and without threats or promises
of any kind.
Date Signature
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Memorandum
Subject
Procedures for Authorizing Application
for Civil Search Warrants Under CERCLA
April 3, 1987
To
All EES Attorneys
FfDfli
Buente,
Eivironmental
ment Section
Under § 104(e) of CERCIA, as amended by SARA, the
United States may seek access by warrant, administrative order,
or court order. If access is obtained by administrative order,
the appropriate documents are issued by relevant client agencies.
If access is to be obtained by court order, then the Assistant
Attorney General of the Land and Natural Resources Division must
approve the complaint, upon referral from the relevant client
agency according to ordinary procedures. For access to be sought
through application on a civil CERCLA warrant,1 the instant
memorandum will confirm the procedures to be used by the
Department of Justice.
Under 15.320-A-2 of the U.S. Attorney's Manual,
application for warrant under CERCLA may not be handled
unilaterally by the U.S. Attorneys. Applications for such
warrants must be coordinated through the Environmental
Enforcement Section.
Clearance through the Environmental Enforcement Section
is important for a variety of reasons. First, the nature of the
governmental activities involved under CERCLA civil warrants may
be much broader and last considerably longer than an inspection
under the other federal environmental regulatory statutes.
Typically the latter require only a few days or weeks to conduct
routine environmental sampling. Under CERCLA, access may be
sought under a warrant for not only sampling, but even simple
1 The memorandum does not cover procedures for seeking a
criminal search warrant where a CERCLA violation may be
involved. All such matters are to be referred to the Director,
Environmental Crimes Unit, EES.
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removal-type activity, e.g., security/fencing, limited drum
removal. The greater relative complexity of the governmental
activity involved can be expected to provoke more challenges to
CERCLA civil warrants than those under other statutes and the
issues raised by CERCLA warrants nay be much more complex.
Second, this is a relatively new and vital area of the law. We
must ensure that maximum efforts are made to develop this
critical area of the law in an excellent manner. EES lawyers
must make all reasonable efforts to ensure that exercises of the
civil warrant authority under CERCLA will be vindicated by the
federal courts, through proper presentation of facts and legal
arguments by Departmental attorneys with experience in this area.
Finally, since our experience has shown that judicial challenges
to civil CERCLA warrants tend to move very rapidly, sometimes on
an emergency motion basis, EES needs to work closely with client
agencies on these matters so that the Division's Appellate
Section is advised and prepared with sufficient lead time to
expeditiously address appellate proceedings.
Coordinating these warrant applications through EES
must be done on an expedited basis so that client agencies'
program objectives are achieved. Moreover, our resources must
not be consumed by duplicative work. Balancing the needs for
careful warrant application preparations with that for
expeditious handling of these matters, we will use the following
procedures:
1. The client agency will telephonically notify the
relevant EES Assistant Chief or Senior Lawyer when the Agency
plans to seek a civil warrant.
2. The client agency will follow-up the request by
expeditiously transmitting a short memorandum concisely
explaining why the warrant is needed with a draft copy of the
warrant application and supporting affidavits.
3. Upon receipt of the telephonic notification or
written request, whichever first occurs, the EES Assistant Chief
or Sr. Lawyer will arrange for either an EES staff attorney or an
AUSA to handle the review and prosecution of the application.
Unless a dispute develops between EES/AUSA personnel and the
client agency, the EES Assistant Chief or Sr. Lawyer may approve
the application. If such a dispute develops, it must be brought
to the attention of the Chief or Deputy Chief, EES for
resolution.
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4. Handling of these matters is to be afforded
oriority on our docket. Moreover, the Chief or Assistant Chief
of the Appellate Section shall be advised of each application
reouest by the EES Assistant Chief or Sr. Lawyer as soon as
oossible after notification by the client agency, so that
Appellate can be prepared to handle expeditiously appeal matters.
5. All civil actions to enforce civil CERCLA warrants,
bv way of, application for civil contempt or other judicial
orders, shall be authorized in writing by the Assistant Attorney
General. Such actions shall be afforded highest priority on the
docket.
For general advice/guidance on handling CERCLA civil
warrant matters, contact John Fleuchaus, ORCM-Waste, 382-3109.
Attachment
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\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I WASHINGTON. D.C. 20460
JUN 19)997
MEMORANDUM
SUBJECT: Interim Guidance on Settlements with De Minimts
Waste Contributors under Section 122(g7 oT~S~ARA
FROM: Thomas L. Adams, Jr. ^y
Assistant Administrator for Enforcement
andy Com pi iapicg__Mon i to r i ng
/,__^ ,' «v£v-
J. WTnstbn'Porter
Assistant Administrator for Solid Waste
and Emergency Response
TO: Regional Administrators
Regional Counsels
Regional Waste Management Division Directors
I. PURPOSE
The purpose of this memorandum is to provide interim
guidance for determining which PRPs qualify for treatment as
d_e minimis waste contributors pursuant to Section 122(g)(1)(A)
of the Superfund Amendments and Reauthorization Act of 1986
("SARA"), Pub. L. No. 99-499, and to present interim guidelines
for settlement with such tie minimis parties pursuant to Section
122(g) of SARA. Guidance on jde minimis landowners under Section
122(g)(1)(B) of SARA will be provided by separate memorandum.
II. BACKGROUND
When the harm is indivisible, generators and transporters
of hazardous substances disposed of at a facility are strictly
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and jointly and severally liable for all coses of removal or
remedial action incurred by the United States under Section
107(a) of the Comprehensive Environmental Response, Compensa-
tion, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. 9607(a),
as amended by SARA. Although this liability is not statutorily
limited by the amount or type of hazardous substance generated
or transported to the facility, Congress, in Section 122(g)(l)(A)
of SARA, recognized the concept of the de minimis waste contri-
butor, i.e., the potentially responsible party ("PRP") who
satisfies the requirements for liability under Section 107(a)
of CERCLA and who does not have a valid Section 107(b) defense,
but who has made only a minimal contribution (by amount and
toxicity) in comparison to other hazardous substances at the
site.
Since the beginning of the Superfund program, the Agency
has been faced with the problem of how to treat d_e minimis
contributor PRPs. The legal fees and other transaction costs
of negotiating and litigating with the Government, compounded
by the potential costs of asserting and defending claims for
contribution with other PRPs at the site, often could exceed
the amount such minimal contributors would be expected to pay,
even under a settlement or a judgment unfavorable to them.
As a result, de minimis parties often seek a swift and efficient
means to pay a sum that is commensurate with their involvement
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at the sice and allows them co be disnissed from furcher nego-
tiations and licigation. The Agency also needs a method for
achieving settlements with minimal waste contributors in order
to make negotiations and litigation more manageable.
EPA formally recognized and endorsed the concept of the
de minimis contributor settlement in the Interim CERCLA Settle-
ment Policy ("Settlement Policy"), 50 Fed. Reg. 5034 (Feb. 5,
1985). The Settlement Policy advised that negotiations with
de mininis parties should focus on achieving cash settlements
and should be limited to low volume, low toxicity disposers
who normally would not make a significant contribution to the
costs of cleanup in any event.
Section I22(g) of SARA _]_/ is in large part a codifica-
tion of the Agency's position with regard to settlements
with de minimis parties. While recognizing the liability of
such parties, that section gives EPA discretionary authority
to enter into expedited settlements with d_e minimis waste
contributors and de minimis landowners. Section 122(g)(1)
generally provides that when EPA determines that a settlement
is "practicable and in the public interest," the Agency shall,
"as promptly as possible," seek to reach a "final" settlement
with a de minimis PRP by consent decree or administrative order,
if the settlement "involves only a minor portion of the response
_jy The full text of Section 122(g) of SARA is provided as
an appendix to this memorandum.
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costs at the facility concerned." Section 122(g)(l). A d_e
minimis contributor settlement with a generator or transporter
is authorized if these criteria are met and if the Agency de-
termines that' both "the amount of the hazardous substances
contributed by that party to the facility," and "the toxic or
other hazardous effects of the substances contributed by that
party to the facility," are "minimal in comparison to other
hazardous substances at the facility." Section 122(g)(1)(A).
Section 122(g) further authorizes settlements with de minimis
landowners as defined by Section 122(g)(1)(B) of SARA. Because
the Agency will be providing a separate guidance document on d_e
minimis landowners under SARA, this document will focus on the
definition and settlement requirements of the de minimis waste
contributor.
III. GUIDELINES FOR NEGOTIATING WITH DE MINIMIS PARTIES
De minimis contributor settlements under Section 122(g) of
SARA can be an effective means of providing de minimis parties
with an early and equitable resolution of their liability while
minimizing their transaction costs. Jte minimis settlements
can be particularly useful to the Government in complex cases
involving numerous PRPs. In such cases, d_e minimis settlements
offer the Agency a method of simplifying CERCLA enforcement
actions through early elimination of the sometimes numerous
minimal contributor PRPs from litigation and negotiations. De
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minimis settlements may also increase the amount of response
costs recovered through voluntary settlement agreements. This
is because d_e minimis parties (who otherwise might not have
participated in settlements) nay be attracted by the advantages
offered by d_e minimis settlements and encouraged by the fact
that their funds will be used to pay costs of cleanup, rather
than transaction costs. Finally, d_e minimis settlements may
increase the likelihood of settlement with the major waste con-
tributors by raising sufficient revenues to reduce the overall
liabilities of such parties.
To use the de minimis settlement provision most effectively,
the Agency will focus on achieving comprehensive settlements
in which interested d_e minimis PRPs at a particular site are
addressed in one settlement agreement. De minimis parties
should be encouraged to organize and present multi-party settle-
ment offers to the Government. To limit Governmental and PRF
transaction costs, de minimis settlements should taka the form
of standardized agreements, and the Regions should try to avoid
lengthy settlement negotiations with d_e minimis parties.
At sites with dozens or hundreds of PRPs, the d_e minimis
settlement authority will be particularly useful in helping to
simplify the negotiation process. In situations of this kind,
it is particularly important for the Agency to gather and release
information about PRP waste contributions to the site at an
early stage, so that potentially d_e minimis parties can identify
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and organize themselves to present settlement offers to the
Government. Where sufficient information is available, the
Agency may tentatively identify potentially de minimis parties
in the information released to PRPs under Section I22(e)(1) of
SARA. The Agency may also consider negotiating separately with
PRP Steering Committees representing substantial numbers of de
minirais parties. In addition, the Agency may wish to consult
with the major, i.e. , non-dje minimis, parties during the de
minimis negotiations in order to facilitate a later, comprehen-
sive settlement with such major parties. This is because, among
other things, the volume and toxicity criteria established by
the Agency for participation in the d_e minimis settlement may
have a significant effect on the willingness of the major parties
to settle.
In determining the timing of a d_e minimis settlement, the
Agency must consider a variety of factors: the amount of infor-
mation available about the PRPs and their waste contributions to
the site; the amount of information available about the costs of
remediating site contamination; the nature of the reopeners
included In the covenant not to sue; the amount of the premium
to be paid by the settling parties; and the volume and toxicity
criteria used by the Agency to distinguish between the de minimis
and major parties at the site. The approach taken at a particular
site should be designed to promote voluntary settlement, minimize
transaction costs for both the PRPs and the Government, address
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the legitimate interests of the d_e minimis and major parties at
the site, and assure that the level of risk to the Agency is
acceptable. The Regions are not encouraged to devote extensive
effort to assessing proposals for d^ minimis settlement unless
there is a reasonable prospect of successful settlement.
The Agency may consider early settlement where complete
information concerning PRP contributions and the nature of the
remedy is not yet available. In such early settlements, the
reopeners should be more expansive, and/or the premiums should
be substantial. In addition, volume and toxicity levels should
normally be set low, so that parties who may legitimately be
treated as major do not instead end up being treated as jde
minimis. Where the Agency determines that ic is more important
to have finality in releases and reopeners and more certainty
in the definition of premiums and volume/toxicity levels, nego-
tiations for de minimis settlements should be deferred until the
remedial investigation and feasibility study have been completed
and the remedy and Che relative PRP contributions have been
definitively identified.
IV. GUIDELINES FOR DEFINING THE DE MINIMIS WASTE CONTRIBUTOR
Because site conditions, remedial programs, number of PRPs
and other considerations vary tremendously among sites, the
approach taken by this guidance, consistent with Section 122(g)
(1)(A) of SARA, is that the de minimis contributor will be
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defined on a site-specific basis. To qualify as a d_e minimis
generator or transporter, the PRP must have contributed an amount
of hazardous substances which is minimal in comparison to the
total amount at the facility. The PRP must also have contributed
hazardous substances which are -not significantly more toxic and
not of significantly greater hazardous effect than other hazardous
substances at the facility, as well as meeting the other condi-
tions set forth in this guidance.
If, for example, all PRPs at the site disposed of waste of
similar toxicity and hazardous nature, e.g., organic solvents,
then those PRPs who had contributed a minimal amount (in rela-
tion to the total amount at the facility) could qualify for de
minimis status because their waste was not more tox'ic or other-
wise hazardous than other hazardous substances at the site.
If, on the other hand, a PRP disposed of a minimal amount of a
waste which is more highly toxic or which exhibits other more
serious hazardous effects than other hazardous substances at the
site, then that PRP, despite the minimal amount of his contribu-
tion, normally would not qualify for treatment as a d£ ninimis
party.
Another way of analyzing the facts posed by the second
example is to consider the cost of remediating site contamina-
tion resulting from the hazardous substance contributed by a
particular party. If a PRP disposed of a hazardous substance
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requiring disproportionately high treatment and disposal costs,
or requiring a different or more costly remedial technique than
that which otherwise would be technically adequate for the site,
then that PRP should not be treated as a de minimis contributor
even if he disposed of a relatively minimal amount of such
substance.
Even if a particular waste contributor meets the volume
and toxicity requirements for de minimis contributor status,
a possible settlement with a d_e minimis PRP must be determined
by the Agency to be "practicable and in the public interest."
Section 122(g)(1). This requires the consideration of factors
beyond the basic eligibility criteria -- factors relating to
whether the settlement would effectuate the intent of Section
122(g) and other purposes of the Act. For example, in the un-
likely event that every PRP at a site meets the basic <[e minimis
eligibility criteria, a de minimis settlement would not serve
one of the primary goals of Section 122(g): elimination of
certain minor parties early in the process to focus the remaining
case on the najor parties. In such an instance, the emphasis
should be on reaching a settlement as soon as possible with all
parties using traditional settlement approaches. Similarly, in
a situation where several major parties at a site are bankrupt
or otherwise non-viable, it may not be in the public interest
to "cash out" smaller contributors before reaching a settlement
with the remaining parties.
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The Agency currently has several de mini.mis pilot projects
underway. After these and other Section 122(g) settlements
have been concluded, we will consider providing further guidance
on the definition of the d_e minim is waste contributor based upon
our experience with these early settlements and comments received
on this interim guidance.
V. GUIDELINES FOR SETTLEMENT WITH DE MINIMIS WASTE CONTRIBUTORS
A. Timing of Settlement and Necessary Information
The general goal of settlements with d_e minimis parties is
to allow PRPs who made minimal contributions to a site to resolve
their liability quickly and without the need for extensive nego-
tiations with the Government. Section 122(g)(3) indicates that
the President shall reach a settlement or grant a covenant not
CO sue as soon as possible after the President has available the
information necessary to reach such a settlement or grant such
a covenant.
The first type of information that the Agency must have
is adequate Information about the identity, waste contributions
and viability of PRPs for the site concerned. Such information
is essential because the Agency must be able to determine, under
Section 122(g)(1)(A) of SARA, that each settling party's contri-
bution by volume and toxicity is minimal in comparison to other
hazardous substances at the facility in order to enter into a
de minimis settlement. Such information is also important because
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Che Agency must be able to evaluate che financial viability of,
and strength of its case against, the non-settling parties at
the site to determine whether a d_e mini.nils settlement is "practi-
cable and in the public interest" under Section 122(g)(1) of
SARA.
Therefore, although the Regions raay engage in preliminary
negotiations with likely candidates for d_e minimis settlements
prior to completion of full PRP investigatory work, as a general
rule, de minimis settlements should not be concluded prior to
completion of a PRP search (including title search and financial
assessments) or prior to such time as the Agency is confident
that adequate information about the extent of each settling
party's waste contribution to the site has been discovered. The
Regions should commence PRP investigatory work concurrent with
the expanded site investigation or, at the latest, the National
Priorities List scoring quality assurances process, and should
make aggressive use of information requests pursuant to Section
104(e) of CERCLA, as amended, and Section 3007 of RCRA, as appro-
priate. The Regions should also use subpoenas, as needed and
appropriate, pursuant to Section 122(e) of SARA, and should
consider all information discovered during site and PRP investi-
gations. 2/
2/ PRPs who have been unresponsive to information requests
or subpoenas generally should not be considered for de
minimis settlements.
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Early discussions with potential candidates for j3e
minimis settlements will be most beneficial at sites with
numerous PRPs, where such discussions may be used to encourage
minimal waste contributors to organize and present -nulti-party
settlement offers to the Government. In appropriate cases;
the Agency may consider concluding jle minimis settlements
prior to completion of full PRP investigatory work. In s'uch
cases, the Agency may use more conservative criteria for
distinguishing between d_e minimis and non-cle minimis parties,
i.e., lower volume and toxicity levels, so that parties who
may legitimately be treated as non-de minimis are not included
within the
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including oversight and operation and maintenance costs. 3/
The Agency usually will arrive at this level of confidence only
after a remedial investigation and feasibility study ("RI/FS")
and a Record of Decision ("ROD") have been (or are close to
being) completed at the site. A de minimis settlement with an
expansive covenant not to sue of this kind may be concluded
prior to completion of the RI/FS and ROD, however, if the Agency
is relatively confident of its ability to estimate future re-
sponse costs, and the settlement takes into account the increased
level of uncertainty through an adequate premium payment and/or
other safeguards. See Section V(B)(2) below. The Agency will
also consider alternative methods of structuring pre-RI/FS and
ROD de minimis settlements, which afford d_e minimis contributors
the opportunity for early settlements (when cost information is
less certain) while protecting the Government against the addi-
tional risks presented by such early agreements. Options for
such settlements are discussed in Section V(B)(2) below.
B. Content and Form of Settlements
1. Introduction
The goal of negotiations with tie minimis parties is to
achieve quick and standardized agreements through the expendi-
ture of minimal enforcement resources and transaction costs.
To attain this goal, the de minimis settlement normally will be
3/ Past costs should be fully documented by the Agency prior
to entering into a de minimis settlement.
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a "cashout," i.e. , it will not include a commitment to perform
work, 4/ but rather will require a payment to be made to the
Hazardous Substance Superfund. 5/ In exchange for this pay-
ment, the settling parties will receive statutory contribution
protection under Section 122(g)(5) of SARA and may receive a
covenant not to sue as described in Section V(B)(2) below.
2. Releases from Liability and Reopeners
De minimi;s settlors may be granted a covenant not to sue
for civil Claras concerning the site which seek injunctive re-
lief under Section 106; of CERCLA and Section 7003 of RCRA, or
cost recovery under Section 107 of CERCLA, when EPA determines
that such a covenant is consistent with the public interest,
as provided in Section I22(g)(2) of SARA. _6/ The scope of
this covenant not to sue will vary, depending upon the timing
of the settlement, the amount of information available to the
Agency, and the amount of any premium payment to be made by the
4/ In appropriate cases, the Agency will also consider enter-
ing into de aininis settlements under which the settling
c[e minim is parties agree to perform a discrete portion of the
response action needed for the site, e.g.. an RI/FS or operable
unit.
5/ We are exploring the circumstances under which it may be
appropriate for the settling parties to deposit the amount
paid pursuant to a de minimis settlement into a site-specific
trust fund to be administered by a third-party trustee and used
for site cleanup. Further guidance on this issue will be pro-
vided by separate memorandum.
6/ Under no circumstances may a covenant not to sue for crimi-
nal claims be granted.
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de minimis parties pursuant to the settlement. Natural resource
damage claims may not be released, however, and should be ex-
pressly reserved unless the Federal natural resource trustee has
agreed in writing to such a covenant not to sue pursuant to the
terras of Section 122(j)(2) of SARA.
In order to protect the Agency against the possibility t'lat
a de minirais party's full waste contribution to a site has not
been discovered, d_e minimis settlements should, in most cases,
also include a reservation of rights which would allow the
Government to seek further relief from any settling party If
information not known to the Government at the time of settlement
is discovered which indicates that the volume or toxicity cri-
teria for the site's d_e minimis parties are no longer satisfied
with respect to that party. 7/ This reservation need not be
included if sufficient information about the waste contributions
of all site PRPs is known at the time of settlement, i.e., if
virtually all of the waste Is accounted for, or if site records
and results of PRP Investigations are sufficiently complete for
the Agency to conclude that the risk of discovering new infor-
mation about waste contributions to the site is negligible.
II In some situations, the Agency may also require each settling
~~ de minimis party to certify in the settlement agreement that
it has~disclosed all information in its possession concerning its
waste contribution to the site. This certification should be used
in cases in which the de minimis settlement is concluded prior to
completion of PRP investigations, particularly where information
requests or subpoenas have not been issued.
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In addition to the natural resource damage reservation
and the reservation for new information indicating that the
volume and toxicity criteria for the particular settlement are
no longer satisfied, two further reservations of rights or
"reopeners" may be required depending upon the facts of the
case and the timing of the settlement. These reopeners protect
the Agency against 1) the risk of cost overruns during the
completion of the remedial ~n:r. ion and 2) the risk that further
response action will be necessary in addition to the work
specified in the ROD.
If an RI/FS and ROD have been (or are close to being) com-
pleted at the site, and the Agency has sufficient information
upon which to evaluate the likelihood of cost overruns or future
response action and the potential costs associated with these
contingent events, then the Agency may accept a premium payment
from the settling £e minimis parties in lieu of one or both of
these two reopeners, depending on the facts. However, if a de
minimis settlement is concluded prior to completion (or substan-
tial completion) of the RI/FS and ROD, at a time when the Agency
has insufficient information upon which to evaluate these risks
and develop a premium payment commensurate with them, then re-
openers for cost overruns and future response action generally
will be required. In appropriate cases, the Agency may make
exceptions to this general rule and accept a very high premium
payment, which provides a wide margin of safety to the Government,
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at an earlier stage in the process in lieu of these cwo reopeners.
As noted above, the Agency will also consider various
forms of pre-RI/FS and ROD d_e minimis settlements which provide
d_e minimis contributors the opportunity for early settlements
while protecting the Government against the additional risks
presented by such early agreements. For example, EPA may con-
sider partial settlements in which che ^e
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the settling de minimis parties. Second, if the major PRPs at
the site have made a binding commitment to perform the remedial
action selected in the ROD regardless of its cost, then the
risk of cost overruns will be borne by those major parties, and
a premium payment or reopener for cost overruns will not be
required by the Government from the settling
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the d_e mini.mis share. It is based upon the type of information
that is most likely to be readily available and does not require
the PRPs and the Agency Co invest an inordinate amount of effort
arguing -about the appropriate share.
The volumetric share may be adjusted, however, based upon
the other factors regarding partial settlements identified in
the Interim CERCLA Settlement Policy (Part IV, 50 Fed. Reg. 5037-
38). Factors chat may be of particular importance include ability
to pay, litigative risks, public interest considerations, value
of a present sum certain, inequities and aggravating factors,
and the nature of the case remaining against other parties after
settlement. The shares may also be adjusted on the basis of a
Nonbinding Preliminary Allocation of Responsibility, if one has
been developed for the site pursuant to Section 122(e)(3) of SARA.
In addition to the volumetric share of past and projected
response costs, the Agency generally will require payment of
a premium from each settling de minimis party in exchange for
granting a covenant not to sue which does not include reopeners
for cost overruns and future response action. 9/ If the settle-
ment is concluded prior to completion of the RI/FS and ROD, and
information about projected costs is limited, then the cost
9/ The premium payment reduces the liability of the non-settling
PRPs in the amount of the premium, unless otherwise provided
in the settlement agreement. In some cases, it may be appropriate
for the premium to be deposited in a .site-specific trust fund as
discussed supra n. 5, p. 14.
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overrun and future response action premiums should be calculated
to reflect this i-icreAs*! level of uncertainty. 10/ As discussed
earlier, if the major PRPs are assuming the responsibility for
conducting che i:le-aaup, then the premium amounts aa/ be Tiade
available to those PRPs rather than to the Agency. In this situ-
ation, the premium amounts may be negotiated between the major
PRPs and the de minimis settlors.
Furthermore, because c[e minimis PRPs are jointly and seve-
rally liable for response costs at the site, the amount to be
paid by a d_e minimis settlor is affected by the amount available
from other PRPs. Thus, if a significant portion of the major
parties at the site are bankrupt or otherwise not financially
viable, then the d_e minimis offer may need to reflect a greater
proportion of response costs, rather than simply a volumetric
share and a premium. It is also possible that mixed funding
may be appropriate in such a situation. 11 /
4. Enforcement of Payment
If a settling party fails to make any payment required
by a de minimis settlement, or otherwise fails to comply with
any term or condition of the settlement, that party is subject
to enforcement action, including imposition of civil penalties
1_0/ Further guidance on calculating premium payments will be
provided by separate memorandum.
_1J_/ Guidance on mixed funding will be issued separately and
is forthcoming.
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pursuant to Section 109 of CERCLA, as amended. See Section
122(1) of SARA. In addition, the Agency may include a pro-
vision in the settlement document which permits the agreement
to be vacated in the event of noncompliance.
5. Type of Agreement
Section 122(g)(4) of SARA requires that d_e minimis settle-
ments be entered as either judicial consent decrees or admini-
strative orders on consent. The circumstances and procedures
under which these two alternatives should be used are briefly
described below.
a. Judicial Consent Decree
Under Section 122(d)(1)(A) of SARA, settlements with non-
d_e minimis PRPs which provide for remedial action must be
embodied in consent decrees. Thus, if the de minimis settlement
is part of a larger, more comprehensive agreement with the non-
de minirais parties under which remedial action will be performed,
it may be advisable and efficient to use a consent decree for
the entire settlement. Similarly, if the Government has already
filed a CERCLA Section 106 or 107 action with respect to the
site, a consent decree with the de minimis parties may be useful
because the court will be familiar with the case and should be
able to approve the settlement expeditiously.
At the present time, all
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Compliance Monitoring ("AA-OECM") and the Assistant Administra-
tor for Solid Waste and Emergency Response ("AA-OSWER") or his
or her designee prior to referral to the Department of Justice
for filing. Further, all tie minimis consent decrees will be
subject to * chircy-day public comment period after lodging. T2/
A raodel Section 122(g) consent decree will be issued shortly.
b. Administrative Order on Consent
A de .'tiinircis settlement nay also be embodied in an admini-
strative order on coasent ("consent order"). See Section 122
(d)(1)(A) of SARA. Because of the potential effect of admini-
strative £e minimis settlements upon future litigation and
negotiations with the major waste contributors at the site, all
such settlements currently must receive the concurrence of the
AA-OECM and the AA-OSWER prior to signature by the Regional
Administrator. Additionally, if the total past and projected
response costs at the site, excluding interest, exceed $500,000
(as will generally be the case at sites involving
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or disapprove the settlement, unless the AG has reached agree-
ment with the Agency on an extension of tine.
Section 122(i) of SARA requires notice of all administra-
tive d_e minimis settlements to be published in the Federal
Register for a thirty-day public comment period. The Agency
must consider all coirments received and "nay withdraw or with-
hold consent to the proposed settlement if such comments disclose
facts or considerations which indicate the proposed settlement
is inappropriate, improper, or inadequate." J_3/ Section 122(i)(3)
of SARA. Modifying or withdrawing consent to an administrative
settlement is subject to the same OECM and OSWER concurrences
as are initial agreements.
More detailed guidance on the procedural aspects of de
minimis consent orders, including Regional referral of orders
for Headquarters concurrence and AG approval, solicitation of
public comment, enforcement of orders, and other related matters,
will be provided by separate memorandum. A model Section 122(g)
consent order will be issued shortly.
VI. PURPOSE AND USE OF THIS MEMORANDUM
This memorandum and any internal procedures adopted for
its implementation are intended solely as guidance for employees
13/ The payment provisions in d_e minimis consent orders should
not require payment to be made until after the public
comment period has closed and until after the Agency has had
sufficient time to determine whether any comments received re-
quire modification of or withdrawal from the consent order.
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- 24 -
of che U.S. Environmental Protection Agency. They do not con-
stitute rulemaking by the Agency and may not be relied upon to
create a right or a benefit, substantive or procedural, enforce-
able at law or in equity, by any person. The Agency may take
action at variance with this memorandum or its internal imple-
menting procedures.
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APPENDIX
TEXT OF SECTION 122(g) OF SARA
(1) EXPEDITED FINAL SETTLEMENT. -- Whenever
practicable and in the public interest, as determined
by the President, the President shall as promptly as
possible reach a final settlement with a potentially
responsible party la an administrative or civil action
under section 106 or 107; if such settlement involves
only a rainor portion of 'the response costs at the
facility concerned and, in the judgment of the President,
the conditions in either of the following subparagraph
(A) or (B) are met:
(A) Both of the following are minimal i(i
comparison to other hazardous substances at the
facility:
(i) The amount of the hazardous substances!
contributed by that party to the facility.
(ii) The toxic or other hazardous effects
of the substances contributed by that party to
the facility.
(B) The potentially responsible party —
(i) is the owner of the real property
on or in which the facility is located;
(ii) did not conduct or permit the
generation, transportation, storage, treatment,
or disposal of any hazardous substance at the
facility; and
(iii) did not contribute to the release
or threat of release of a hazardous substance
at the facility through any action or omission.
This subparagraph (B) does not apply if the poten-
tially responsible party purchased the real property
with actual or constructive knowledge that the
property was used for the generation, transportation,
storage, treatment, or disposal of any hazardous
substance.
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- 2 -
(2) COVENANT NOT TO SUE. -- The President may
provide a covenant not to sue with respect to the
facility concerned to any party who has entered into a
settlement under this subsection unless such a covenant
would be inconsistent with the public interest as deter-
mined under subsection (f).
(3) EXPEDITED AGKKCieNT. -- Tie President shall
reach any such settlement or grant any such covenant
not to sue as soon as possible after the President has
available the information necessary to reach such a
settlement or grant such a covenant.
(4) CONSENT DECREE OR ADMINISTRATIVE ORDER. --
A settlement under thU subsection shall be entered is
a consent decree or embodied in an administrative order
setting forth the terns of r.he s«ttleae'it. In the case
of any facility where the total response costs exceed
$500,000 (excluding interest), if the settlement is
embodied as an administrative order, the order may be
issued only with the prior written approval of the
Attorney General. If the Attorney General or his desig-
nee has not approved or disapproved the order within 30
days of this referral, the order shall be deemed to be
approved unless the Attorney General and the Administrator
have agreed to extend the time. The district court for
the district in which the release or threatened release
occurs may enforce any such administative order.
(5) EFFECT OF AGREEMENT. — A party who has re-
solved its liability to the United States under this
subsection shall not be liable for claims for contribu-
tion regarding matters addressed in the settlement.
Such settlement does not discharge any of the other
potentially responsible parties unless its terms so
provide, but it reduces the potential liability of the
others by the amount of the settlement.
(6) SETTLEMENTS WITH OTHER POTENTIALLY RESPONSIBLE
PARTIES. -- Nothing in this subsection shall be construed
to affect the authority of the President to reach settle-
ments with other potentially responsible parties under
this Act.
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ENVIRONMENTAL PROTECTION AGENCY
[ 1
SUPERFUND PROGRAM; DE MINIMIS CONTRIBUTOR SETTLEMENTS
AGENCY: Environmental Protection Agency
ACTION: Request for public comment
SUMMARY: The Agency is publishing today its Interim
Guidance on Settlements with De Minimis Waste Contributors
under Section 122(g) of SARA in order to inform the public
and to solicit public comment on this important aspect of
the Superfund enforcement process. This document provides
guidelines for determining which potentially responsible
parties ("PRPs") under Section 107(a) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 ("CERCLA" or "Superfund"), as amended by the Superfund
Amendments and Reauthorization Act of 1986 ("SARA"), may
qualify for treatment as de minimis waste contributors
pursuant to Section 122(g)(1)(A) of SARA. It also provides
guidelines for negotiating with d_e minimis waste contributors
and for entering Into settlements with such parties pursuant
to Section 122(g) of SARA.
This publication does not address qualifications for
or settlements with cie minimis landowners under Section
122(g)(1)(B) of SARA, which will be covered by separate
guidance.
DATE: Comments must be provided on or before [60 days
from date of publication].
1
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ADDRESS: Comments should be addressed Co Janice Linett,
U.S. Environmental Protection Agency, Office of Enforce-
ment and Compliance Monitoring, Waste Enforcement Division,
LE-134S, 401 M Street, S.W.. Washington, D.C. 20460,
(202) 382-3077.
FOR FURTHER INFORMATION CONTACT: Janice Linett, U.S. Envi-
ronmental Protection Agency, Office of Enforcement and
Compliance Monitoring, Waste Enforcement OLvlsloa, LE-134S,
401 M Street, S.W.,| Washington, D.C. 20460, (202) 382-3077.
SUPPLEMENTARY INFORMATION: Section !22(g) of SARA provides
•EPA. with discretionary authority to enter into expedited,
t
final settlements with d_e ainimis waste contributors to
Superfund sites. De minimis waste contributors are those
generator and transporter PRPs who, in the judgment of the
Agency (as delegatee of the President), contributed hazardous
substances in an amount and of such toxic or other hazardous
effects as to be minimal in comparison to other hazardous
substances at the facility. Section 122(g)(1)(A). Pursuant
to the requirements of Section 122(g)(1), de minimis con-
tributor settlements must be practicable and in the public
interest, as determined by the Agency, and must involve
only a minor portion of the response costs at the facility
concerned with respect to each settling party.
De minimis contributor settlements under Section
122(g) of SARA offer potential advantages to PRPs and the
Agency alike. For d_e roinimis parties, such settlements
can be an effective means of achieving an early and equi-
-------
table resolution of their liability with the expenditure
of reduced legal fees and other transaction costs. For
the Agency, Section 122(g) settlements provide a means of
simplifying the CERCLA enforcement process through early
elimination from litigation and negotiations of the often
numerous minimal contributor PRPs. De minimis settlements
also offer the potential for increase! numbers of voluntary
settlement agreements. This is because d_e minimis contri-
butors Tiay be attr-^r.rt-l V>y che advantages offered by Section
122(g) settlements, and non-d_e minimis parties may be
encouraged to settle *s a result of the revenues raised
through such agreements.
To use the ^e_ minim is settlement provision most
effectively, the Agency will focus on achieving settlements
in which multiple £e minimis PRPs at a particular site are
"cashed out" under one comprehensive agreement. De minimis
parties should be encouraged to organize and present multi-
party settlement offers to the government. Further, to
limit governmental and PRP transaction costs, de minimis
settlements should be standardized in form and should not
be the subject of lengthy negotiations.
In the typical de minimis settlement, the settling
parties, in exchange for a payment, will receive statutory
contribution protection under Section 122(g)(5) of SARA
and may be granted a covenant not to sue where such a
covenant is consistent with the public interest under
Section 122(g)(2). The scope of the covenant not to sue
-------
will vary depending upon Che timing of r.'\<* ^ncc
che amount of information available to the Agency about
site PR?s and response costs, the amount of any premium
payments recovered through the settlement, and other
relevant considerations.
The Agency is aware that d_e minim is contributor
settlements are the subject of great interest to poten-
tially responsible parties and the public. Therefore, EPA
is publishing this interim guidance to provide wide public
distribution of information on this aspect of SARA imple-
mentation and to gain the benefit of public comment. EPA
will reevaluate this interim guidance based upon its
experience with its implementation and upon any public
comments that may be received.
The interim guidance follows.
Thomas U Adams , "Sr.~ " Bate"
Assistant Administrator
for Enforcement and Com-
pliance. Monitor ing
___
J. Winston Porter " Date
Assistant Administrator
for Solid Waste and
Emergency Response
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JULY
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUL 71987
sc
OSWER Directive 926S.3-02
OF PICE or
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
mployee.Occupational Health and Safety
SUBJECT: . r ,r...
I rl i /V. /
FROM: V/W/nstoh Porter,
fffce of Solfifcl Waste and Emergency Response
TO: Addressees
Assistant Administrator
As we initiate our field activities under the Superfund Amendments-
and Reauthorization Act of 1986 (SARA), I wish to remind everyone that all
EPA employees are required to comply with the Federal Occupational Health
and Safety Act (OSHA). In addition to complying with such federal standards
as 29 CFR 1910/1926, EPA employees must also adhere to the appropriate EPA
orders, policies, and guidelines pertaining to employee occupational health
and safety. For example, EPA Order 1440.3 requires all EPA employees
using respiratory protection devices to participate 1n a medical monitoring
program. 1 want to encourage all Regions and OSWER offices to continue to
Implement effective medical monitoring programs for its employees. EPA
Order 1440.2 requires all EPA employees engaged in routine field activities
to be trained and to receive training certification levels commensurate
with the degree of anticipated hazards. EPA Order 1440 specifies the
responsibilities of all Agency employees in this area.
More recently, section 126(a) of SARA requires the Secretary of
Labor, within one year of the date of enactment, to promulgate standards
(29 CFR 1910.120) for health and safety protection of employees engaged
in hazardous waste operations. The Secretary is also required in Subsec-
tion 126(e) to issue interim final regulations within 50 days after
enactment of SARA. The interim final rule was published in the Federal
Register (Vol. 51, No. 244, pages 45654 - 45675) on December 19, 1986.
This interim final rule took effect upon the date of issuance (December
19, 1986), and it was OSHA's judgment that all provisions could be fully
implemented not later than 90 days after issuance (March 17, 1987). As
with other OSHA Section 6 Standards, EPA is required to comply with 29
CFR 1910.120 per Executive Order 12196 (February 1980).
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(OSWER Directive 9285.3-02)
-2-
In addition, section 126(f) of SARA requires the Administrator
of EPA, within 90 days after the promulgation of final regulations under
section 126(a), (January 17, 1988). to promulgate standards identical
to 29 CFR 1910.120 (those promulgated by the Secretary of Labor under
section 126(a)j. EPA's Workgroup No. 2427 (Hazardous Waste Operations
and Emergency Response Worker Protection Standards), chaired by Rod Turpin,
Safety and Occupational Health Manager, Environmental Response Team
(ERT), Edison, NJ, has been established and includes representatives of
five (5) EPA Regions, two (2) States, and OSHA. In addition, the following
EPA Headquarters offices are represented: Office of Policy, Planning and
Eva]uation, Office of Pesticides and Toxic Substances, Office of General
Counsel, Office of Research and Development, Office of Solid Waste and
Emergency Response, and the Occupational Health and Safety Staff. The
objective of this Workgroup is to:
1. Promulgate EPA Worker Healjth and Safety Standards
identical to OSHA's standards (29 CFR 1910.120)for those 27
States which do not have i'n effect an approved State Plan under
the Occupational Safety and Health Act of 1970.
2. Develop an implementation/enforcement strategy for these EPA
standards.
In order to better implement both EPA and OSHA Occupational Health
and Safety requirements, OSWER has established an Integrated Health and
Safety Program for the sole purpose of assisting OSWER in providing a
safe and healthy work environment for Its field activities. This program
is managed by Rod Turpin, ERT, Edison, NJ. Please feel free to call him
at 201-321-6745 (FTS 340-6745) for any additional information.
Thank you in advance for your assistance and dedication in making
our work environment a safe and healthy one.
Addressees:
Regional Administrators, Regions I - X
Henry L. Longest II (WH-543)
Mare1 a E. Williams (WH-562)
Ronald Brand (WH-562A)
Gene A. Lucero (HH-527)
cc: David Weitzman (PN-273F)
Waste Management Division Directors, EPA Regions I-X
Environmental Services Division Directors, EPA Regions I-X
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vvEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 9334.0.05
TITLE: Interim Guidance on Compliance with Applicable or
Relevant and Appropriate Requirements
APPROVAL DATE: July 9, '987
EFFECTIVE DATE: July 9, '987
ORIGINATING OFFICE: OERR/OPM/PAS
53 FINAL
G DRAFT
STATUS:
REFERENCE (other documents):
9234.0-02 CERCLA Compliance with other Environmental
Statutues.
OSWER OSWER OSWER
ME DIRECTIVE DIRECTIVE D
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
JUL
OF
SOLIO WASTE AND EMERGENCY RESPONSE
9234.0-05
MEMORANDUM
SUBJECT: Interim Guidance on Carpiiance with Applicable
-------
-2- 9234.0-05
Background
Section 121(d) of CERCLA, as amended by the Superfund Amendments and
Peauthorization Act of 1986 (SARA), requires that Fund-financed, enforcement,
and Federal facility remedial actions conply with requirements or standards
under Federal and State environmental laws. The requirements that must be
complied with are those that are applicable or relevant and appropriate to
the hazardous substances, pollutants, or contaminants at a site or to the
circumstances of the release. Compliance is required at the completion of
the remedial action for hazardous substances, pollutants, or contaminants
that remain on-site. Any such requirements may be waived under six condi-
tions provided that protection of human health and environment is still
assured.
SARA essentially codified and expanded upon the Agency's Compliance
Policy, which was included in the National Contingency Plan (revised
November 20, 1985). The major difference between that policy and the new
statutory reouirement is that the latter includes more stringent, promul-
gated State environmental standards as potentially applicable or relevant
and appropriate requirements, and Maximum Contaminant Level Goals and
Federal Water Quality Criteria as potentially relevant and appropriate
requirements.
GENERAL GUIDANCE ON IDENTIFYING AND USING ARABS
This section defines what ARARs are, describes the different types
of ARARs, and discusses how they are applied to the remedial process.
Definition of ARARs
A requirement under other environmental laws may be either "applicable"
or "relevant and appropriate" to a remedial action, .but not both. A two-
tier test may be applied: first, to determine whether a given requirement
is applicable; then, if it is not applicable, to determine whether it is
ne.ver the less relevant and appropriate.
Applicable requirements means those cleanup standards, standards of
control, and other substantive environmental protection requirements,
criteria, or limitations promulgated under Federal or State law that
specifically address a hazardous substance, pollutant, contaminant, remedial
action, location, or other circumstance at a CERCLA. site.
"Applicability" implies that the remedial action or the circumstances
at the site satisfy all of the jurisdictional prerequisites of a require-
ment. For example, the minimal technology requirement for landfills under
RCRA would apply if a new hazardous waste landfill unit (or an expansion
of an existing unit) were to be built on a CERCLA site.
Relevant and appropriate requirements means those cleanup standards,
standards of control, and other substantive environmental protection
requirements, criteria, or limitations pronulgated under Federal or State
law that, while not "applicable" to a hazardous substance, pollutant,
contaminant, remedial action, location, or other circumstance at a CERCLA
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-3- 9234.0-05
site, address problems or situations sufficiently similar to those encoun-
tered at the CERCLA site that their use is well suited to the particular
site.
The relevance and appropriateness of a requirement can be judged by
ccmparing a number of factors, including the characteristics of the
remedial action, the hazardous substances in question, or the physical
circumstances of the site, with those addressed in the requirement. It
is also helpful to look at the objective and origin of the requirement.
For example, while RCRA regulations are not applicable to closing undis-
turbed hazardous waste in place, the RCRA regulation for closure by
capping may be deemed relevant and appropriate.
A requirement that is judged to be relevant and! appropriate must be
carpiled with to the same degree as if it were applicable. However,
there is more discretion in this determination: it is possible for only
part of a requirement to be considered relevant and appropriate, the
rest being dismissed if judged not to be relevant and appropriate in a
given case.
Non-promulgated advisories or guidance documents issued by Federal
or State governments do not have the status of potential ARARs. However,
as described below, they may be considered in determining the necessary
level of cleanup for protection of health or environment.
Types of ARARs
There are several different types of requirements that Superfund
actions may have to comply with. The classification of ARARs below is
offered for illustrative purposes.
0 Ambient or chemical-specific requirements set health or risk-
based concentration limits or ranges in various environmental media for
specific hazardous substances, pollutants, or contaminants. Examples:
Maximum Contaminant Levels, National Ambient Air Quality Standards.
These requirements may set protective cleanup levels for the chemicals
of concern in the designated media, or else indicate an acceptable level of
discharge (e.g., air emission or wastewater discharge taking into account
water quality standards) where one occurs in a remedial activity. If a
chemical has more than one such requirement, the more stringent ARAR
should be complied with.
There are at present a limited number of actual ambient or chemical-
specific requirements. In order to achieve remedies that are protective
of health and environment, it may frequently be necessary to use chemical-
specific advisory levels such as Carcinogenic Potency Factors or Reference
Doses. While not actually ARARs, these chemical-specific advisory levels
may factor significantly into the establishment of protective cleanup
levels. Guidance for establishing such, chemical-specific, health-based
cleanup levels is given in the Superfund Public Health Evaluation Manual
(EPA 540/1-86/060, Oct. 1986).
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9234.0-05
• Performance, design, or other action-specific requirements
set controls or restrictions on particular kinds of activities related to
management of hazardous substances, pollutants, or contaminants. Examples:
RCRA regulations for closure of hazardous waste storage or disposal units;
RCRA incineration standards; Clean Water Act pretreatment standards for
discharges to PCTWs.
These requirements are triggered not by the specific chemicals
present at a site but rather by the particular remedial activities that
are selected to accomplish a remedy* Since there are usually several
alternative actions for any remedial site, very different requirements
can cone into play. These action-specific requirements may specify
particular performance levels, actions, or technologies, as well as
specific levels (or .a methodology for setting specific levels) for
discharged or residual chemicals.
0 Locational requirements set restrictions on activities depending
on the characteristics of a site or its immediate environs. Examples:
Federal and State siting laws for hazardous waste facilities; sites on
National Register of Historic Places.
These requirements function like action-specific requirements.
Alternative remedial actions may be restricted or precluded depending on
the location or characteristics of the site and the requirements that-
apply to it.
Using ARARs
This section explains how and where requirements may be applied in
the remedial planning process.
First, actual ARARs can be identified only on a site-specific basis.
They depend on the specific chemicals at a site, the particular actions
proposed as a remedy, and the site characteristics. Guidance is being
developed on the potential ARARs under the major Federal environmental
statutes for various activities, locations, and chemicals.
Where there are no specific ARARs far a chemical or situation, or
where such ARARs are not sufficient to be protective, one should identify
pertinent health advisccy levels (such as Reference Doses or Carcinogenic
Potency Factors) as described above in order to ensure that a remedy is
protective.
The different ARARs that may apply to a site and its remedial action
should be identified and considered at multiple points in the remedial
planning process, namely:
- During scoping of the RI/FS, chemical-specific and location-specific
ARARs may be identified on a preliminary basis.
- During the site characterization phase of the Remedial Investigation,
when the public health evaluation is conducted to assess risks at a
site, the chemical-specific ARARs and advisories and location-specific
ARARs are identified more comprehensively and used to help determine
the cleanup goals.
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- During development of remedial alternatives in the Feasibility Study,
action-specific ARARs are identified for each of the proposed alterna-
tives and considered along with other ARARs and advisories.
- IXiring detailed analysis of alternatives all the ARARs and advisories
for each alternative are examined as a package to determine what is
needed to ccmply with other laws and be protective.
- When an alternative is selected it mist be able to attain all ARARs
unless one of the six statutory waivers is invoked.
- IXiring remedial design the technical specifications of construction
must ensure attainment of ARARs.
Note that CERCLA $121(e) exempts any on-site response action from
having to obtain a Federal, State, or local permit.
In general, on-site actions need conply only with the substantive
aspects of these requirements, not with the administrative aspects. That
is, neither applications nor other administrative procedures such as
permitting or administrative reviews are considered ARARs for actions
conducted entirely on-site, and therefore should not be pursued during
the remedial planning or the remedial action. However, the RI/FS, Record
of Decision, and design documents should demonstrate full compliance with
all substantive requirements that are ARARs. Also, other Federal and
•State program offices should be consulted as appropriate to ensure that
remedies are substantively compliant with identified ARARs.
GUIDANCE ON IDENTIFYING STATE ARARs
This section describes the basic factors to be considered in identi-
fying State requirements for Superfund remedial actions.
As mandated by CERCLA S121(d)(2)(A), remedies must conply with "any
promulgated standard, requirement, criteria/ or limitation under a State
environmental or facility siting law that is more stringent than any
Federal standard, requirement, criteria, or limitation" if the former is
applicable or relevant and appropriate to the hazardous substance or
release in question.
States are required by CERCLA to identify State ARARs "in a timely
manner," that is, in sufficient tine to avoid inordinate delay or duplica-
tion of effort in the remedial process. Regions should expect to work
closely with their States so that the appropriate ARARs are identified
at critical stages in the process. At a minimum, chemical-specific and
location-specific ARARs should be identified after site characterization,
and action-specific ARARs should be identified after initial screening
of alternatives (prior to detailed analysis) for alternatives that pass
through the screening. To the extent possible, Regions and States should
negotiate to try to resolve any differences of opinion about ARARs.
Eligible Requirements
The statute specifically limits the scope of potential requirements
to those that are promulgated. "Promulgated" requirements are laws
imposed by State legislative bodies and regulations developed by State
agencies that are of general applicability and are legally enforceable.
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9234.0-05
State advisories* guidance, or other non-binding policies, as veil
as standards that are not of general application, cannot be treated as
requirements under CERCLA. However, as with their Federal counterparts,
State advisories may still tie considered in determining an appropriate,
protective remedy.
General State goals that are duly promulgated (such as a non-
degradation law) have the same weight as explicit, numerical standards,
although the former have to be interpreted in terms of a site and
therefore may allow more flexibility in approach. Similarly, State laws
x regulations that prescribe methods for deriving numerical standards
for specific cases may also be potential requirements.
On-site actions need comply only with the substantive aspects of a
State requirement, not with the administrative aspects. Where the require-
ment involves review by a State board based on explicit criteria, the
best approach is to incorporate the substantive criteria into the RI/FS
and remedy selection process and to maintain close consultation wit^i
appropriate State representatives.
Limitations on State Siting Laws
CERCIA §121(d)(2)(C) puts special limitations on the applicability
of State requirements or siting laws for hazardous waste facilities that
could result in a State-wide prohibition of land disposal. Specifically,
in order to be treated as potentially applicable or relevant and appropriate
requirements, such laws must:
1) be of general applicability and be formally adopted
2) be based on technical (e.g., hydrogeologic) or other relevant
considerations
3) not be intended to preclude land disposal for reasons other than
protection of health or environment.
In addition, the State must arrange and pay for additional costs fa: out-
of-State or other disposal necessitated by such a law.
The first criterion is similar to the criterion that a requirement be
promulgated, as discussed above. The second criterion requires that such
a law be based on sound scientific or technical considerations, such as
groundwater flow, surficial geology, and engineering design. The third
criterion requires sane evidence that health or environmental protection
motivates the prescribed restrictions; the introductory sections of a
law, the nature of the technical considerations, or the legislative history
can be used to make this determination.
Consistency of Application
CERCIA S121(d)(4)(E) allows a State requirement to be waived if it
has not been consistently applied by the State in similar circumstances
at other remedial actions. The waiver cannot be used if the State has
demonstrated the intention to consistently apply the requirement.
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Consistency of application by a State may be determined by examining
the following:
- Application of requirement at similar sites or in similar response
circumstances (considering nature of contaminants or media affected,
characteristics of waste and facility, degree of danger or risk, etc.)
- Proportion of cases (including enforcement actions) in which require-
ment was not applied out of total actions where it could have been
applied
- Reason for non-application of requirement in past cases
- Intention to consistently apply requirement in future as shown by
policy statements, legislative history, site remedial planning
documents, or State responses to Federal-lead sites; newly promul-
gated requirements shall be presumed to embody this intention
unless there is contrary evidence.
All previous actions by States since promulgation that relate to similar
remedial actions may be considered in evaluating consistency.
GUIDANCE ON APPLYING SPECIFIED WATER STANDftRDS
CERCLA §121(d)(2)(A) and (B) explicitly mention three kinds of surface
water or groundwater standards with which compliance is potentially
required - Maximum Contaminant Level Goals (MCLGs), Federal Water Quality
Criteria (FWQC), and alternate concentration limits (ACLs) where human
exposure is to be limited. This section describes these requirements
and how they may be applied to Superfund remedial actions. The guidance
is based on Federal requirements and policies; more stringent, promulgated
State requirements (such as a stricter classification scheme for ground-
water) may result in application of even stricter standards than those
specified here.
Background
These three standards or criteria each derive from separate statutes
and have different purposes and uses.
MCLGs are developed under the Safe Drinking Water Act as chemical-
specific health goals used in setting enforceable drinking water standards,
known as Maximum Contaminant Levels (MCLs), for public water supply systems.
MCLGs are based entirely on health considerations and do not taXe cost or
feasibility into account. Moreover, as health goals MCLGs are set at
levels where no known or anticipated health effects may occur, including
an adequate margin of safety. MCLs are required to be set as close as
feasible to the respective MCLGs, taxing into consideration the best tech-
nology, treatment techniques, and other factors (including cost). However,
as the standard for public water supplies, MCLs are fully protective of
human health and (for carcinogens) fall within the acceptable risk range of
10~4 to 10~7. Furthermore, for non-carcinogens, which are the majority of
contaminants, MCLs will nearly always be set at the sane level as the
respective MCLGs. Also, these standards assure that even sensitive
populations will experience no adverse health effects. Thus, there will
be no difference in the protectiveness of MCLGs and MCLs for most contami-
nants, and, as discussed above, MCLs provide a sufficient level of protec-
tiveness even for carcinogens.
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FWQC are developed under the Clean Water Act as guidelines fron which
States determine their water quality standards. Different EVIQC are derived
for protection of human health and protection of aquatic Life.
ACLs are one of three possible standards available under the Subpart F
Groundwater Protection Standards of RCRA. For setting both a trigger and
a cleanup level fa; remediating groundwater contamination, an ACL, the
background concentration, or for a small group of chemicals the MCL can be
selected for a given site.
Statutory Mandate
CERCLA §121(d)(2) states that remedial actions shall attain applicable
or relevant and appropriate requirements under the Safe drinking Water
Act, the Clean Water Act, and RCRA, and specifically shall attain MCLGs
and FWCC where they are relevant and appropriate under the circumstances
of the release or threatened release. It further states that for FWQC
this determination will be based on the designated or potential use of
the water, the media affected, the purposes of the criteria, and current
information.
CERCLA §121(d)(2HB)(ii) limits the use of ACLs that are set above
health-based levels based on projections that health-based Levels will be
achieved at a likely point of human exposure. Such a point of exposure
may not be beyond the Superfund facility boundary unless the groundwater
discharges into surface water and does not cause a statistically signifi-
cant increase of contaminants in the surface water. To apply such an
ACL outside the facility, moreover, the remedial action must include
enforceable measures to prevent use of any contaminated groundwater.
Application
In determining the applicable or relevant and appropriate requirements
for remedial actions involving contaminated surface water or ground>ater,
the most important factors to consider are the uses and potential uses of
the water and the purposes for wrich the potential requirements are!
intended.
The actual or potential use of water, and the manner in which it is
used, will determine what kinds of requirements may be applicable or
relevant and appropriate. For Class Ill-type groundwater that is not
suitable for drinking because of high salinity or widespread contamination
and that dees not affect drinkable groundwater, drinking water standards
are neither applicable nor relevant and appropriate. For Class I- and
Class II-type groundwater or surface water that is or may be used for
drinking, drinking water standards are applicable or relevant and appro-
priate, and the surface water or groundwater must ultimately be cleaned
up to such levels.
For water that is or may be used for drinking, the Maximum Contaminant
Levels (MCLs) set under the Safe Drinking Water Act are generally the
applicable or relevant and appropriate standard. MCLs are applicable at
the tap where the water will be provided directly to 25 or more people or
will be supplied to 15 or more service connections. Otherwise, where
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surface water cr groundwater is or may be used far drinking, MCLs are
generally relevant and appropriate as cleanup standards for the surface
water cr the groundwater.
A standard for drinking water for a contaminant for which there is an
MCL may be more stringent than the MCL to ensure adequate protection in
special circumstances, such as where either multiple contaminants in ground-
water or multiple pathways of exposure present extraordinary risks. In
setting a level more stringent than the MCL in such cases, a site-specific
determination should be made by considering MCLGs, the Agency's policy on the
use of appropriate risk ranges for carcinogens, levels of quantification,
and other pertinent guidelines. Prior consultation with Headquarters is
encouraged in such cases.
When MCLs do not exist for contaminants identified at the site, cleanup
levels should be set using chemical-specific advisory levels. Cleanup
levels should be selected such that the total risk of all contaminants
falls within the acceptable risk range of 10"4 to 10~7. In cases where non-
carcinogens are present, cleanup levels should be based on acceptable levels
of exposure as determined by the Reference Dose, taking into account the
effects of other contaminants at the site.
It should be noted that while MCLs are generally the cleanup standards,
as described above, the treatment necessary to attain an MCL level for one
cnemical (or a protective level for a chemical without an MCL) may result in
an actual level for another chemical that is below its respective MCL (or
pr otec 11ve leve1).
A more stringent FWQC for aquatic life may be found relevant and'
appropriate when there are environmental factors that are being considered
at a site, such as protection of aquatic organisms. The Agency is still
formulating a position with respect to the use of EWQC for protection of
human health.
Guidance on the use of ACLs based on limitations on exposure will be
forthcoming.
* * *
Further Information
For further information on the subject matter in this interim guidance,
contact Steve Smith (FTS-382-2200) or Arthur Weissman (FTS-382-2182) qf
the Policy and Analysis Staff, Office of Bnergency and Remedial Response.
Addressees
Regional Administrators, Regions I-X
Regional Counsel, Regions I-X
Director, Waste Management Division, Regions I, IV, V, VII, and VIII
Director, Qnergency and Remedial Response Division, Region II
Director, Hazardous Waste Management Division, Regions III and VI
Director, Toxics and Waste Management Division, Region IX
Director, Hazardous Waste Division, Region X
Environmental Services Division Directors, Region I, VI, and VII
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®'
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUL I 0 ;987
MEMORANDUM
SUBJECT: Covenants Not To Sue Under SARA
FROM:
Thomas L. Adams, Jr.
Assistant'Administrator for Enforcement
and Compliance Mfl*i-toring
J. Winston Porter
Assistant Administrator for Solid Waste
and Emergency Response
TO
F. Henry Habicht LI _ ,
Assistant Attorney General
U.S. Department of Justice
Regional Administrators, Regions I - X
I. Introduction
In the Interim CERCLA Settlement Policy, 50 Fed. Reg. 5034
(1986), EPA provided guidance on when releases from liability were
appropriate as consideration for an agreement involving a private
party cleanup or reimbursement of EPA's costs. That policy
expressed a strong preference for issuing releases in the form of
covenants not to sue. The Superfund Amendments and Reauthorization
Act (SARA) confirms the authority of EPA to release responsible
parties from certain liabilities in settlement of an EPA claim
under CERCLA. In Section 122(f) of SARA, Congress adopted EPA's
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policy of drafting releases in the form of covenants not co sue
and also established specific requirements governing the Agency's
ability to issue such covenants. SARA includes several express
requirements regarding covenants not to sue and also gives the
Agency discretion to place further conditions on the extent of
such covenants. This memorandum updates the Interim Settlement
Policy by providing guidance on the implementation of the mandatory
and discretionary provisions of SARA relating to use1of covenants
not to sue in consent decrees. Attached to this guidance is a
model covenant not to sue.
II. Summary of Statutory Provisions
Section 122(f)(1) authorizes EPA to cov-iant not to sue
responsible parties for "any liability to the United States under
this Ace, including future liability, resulting from a release or
threatened release addressed by a remedial action . . . ." Such
covenants may be provided if each of the following conditions are
met:
A) The covenant not to sue is in the public interest;
B) The covenant not to sue would expedite the response;
C) The settlor is in full compliance with a consent decree
under S 106 addressing the release or threatened release;
D) EPA has approved the response action.
§ 122(f)(1).
Prior to entering a covenant not to sue under Section
122(f)(1), EPA must assess the appropriateness of the covenant
under seven factors set forth in Section 122(f)(4). These factors.
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which relate to the effectiveness, reliability, and enforceability
of the remedy, and the nature of the risk remaining at the site,
include:
A) The effectiveness and reliability of the remedy, in
light of the other alternative remedies considered for
the facility concerned.
B) The nature of the risks remaining ac the facility.
C) The extent to which performance standards are included
in the order or decree.
D) The extent to which the response action provides a
complete remedy for the facility, including a reduction
in the hazardous nature of the substances ac the facility.
E) The extent to *hich the technology used in the response
action is demonstrated to be effective.
F) Whether the Fund or other sources ot funding would be
available for any additional remedial actions that might
eventually be necessary at the facility.
G) Whether the remedial action will be carried out, in whole
or in significant part, by the responsible parties them-
selves.
§ 122(f)(4).
In addition to authorizing EPA, in its discretion, to covenant
not to sue for liability, including future liability, Section 122(t")
mandates that EPA granc a covenant not to sue for future liability
in two specific circumstances. Section 122(f)(2) provides that
where the four conditions in Section 122(f)(l) have been met, EPA
must issue a covenant not to sue for "future liability for future
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- 4 -
releases" if: d) EPA selects a remedial action involving offsite
disposal of a hazardous substance after rejecting an onsite response
which fully complies with the National Contingency Plan (NCP); or
(2) the selected remedial action requires the destruction, elimi-
nation, or permanent immobilization of hazardous substances. Such
a covenant may only address the portion of the remedial action
which involves these two situations.
Assuming that a covenant not to sue for future -liability is
otherwise authorized under Section 122(f), Section 122(f)(3)
prescribes that a covenant not to sue for future liability shall
not take effect until EPA has certified that the remedial action
has been completed in accordance with the te-ns of CERCLA. .
Moreover, whether the covenant is for future or present liability,
Section 122(f)(5) conditions such covenants upon satisfactory
performance of the terms of the settlement agreement.
Finally, Section 122(f)(6) addresses exceptions to covenants
not to sue for future liability provided under Section I22(f)(1).
For example, EPA must except from any covenant not to sue for
future liability any future liability related to the release or
threatened release which is the subject of the covenant where such
liability arises from conditions unknown at the time the remedial
action is certified complete. § 122(f)(6)(A). This "reopener" for
unknown conditions is not required for special covenants granted
under Section 122(f)(2) or for de rainimis settlements under Section
122(g). In addition, Section 122(f)(6)(B) provides that a waiver
for the unknown conditions reopener in Section 122(f)(6)(A) may be
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- 5 -
granted in "extraordinary circumstances." In determining whether
extraordinary circumstances exist, EPA must consider "such factors
as those referred to in [Section 122(f)](4)] and volume, toxicity,
mobility, strength of evidence, ability to pay, litigative risks,
public interest considerations, precedential value, and inequities
and aggravating factors." S 122(£)(b)(B). Nonetheless, even if
extraordinary circumstances exist, the unknown conditions exception
may not be waived if other terms of the agreement do,not provide
reasonable assurance that public health and the environment will be
protected from any future releases. Section 122(f)(6)(C) authorizes
EPA to except from covenants not to sue future enforcement actions
necessary to protect public health, welfare, and the environment.
III. Explanation of Key Statutory Provisions
In interpreting Section 122(i) and developing a policy for its
implementation, EPA has looked to the expressions of Congressional
intent contained in other parts of SARA and the relevant
legislative history. These sources indicate that Section 122(f)
serves several goals, including:
1) encouraging private party cleanups by providing EPA with
the authority to grant covenants noc to sue;
2) encouraging more permanent cleanups by codifying the
principle that the more permanent the cleanup the more
complete the release;
3) protecting the public by ensuring that responsible
parties remain liable for future releases requiring
future remedial action.
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- 7 -
and where consideration of the factors in Section 122(f)(4) suggests
the remedy is reliable, effective, and enforceable (such as, for
example, where the remedy includes numerical performance standards),
a covenant not to sue for present liability may be provided which
takes effect upon approval of the consent decree by the court. On
the other hand, where the criteria in paragraph (f)(1) are met but
the factors in Section 122(f)O) indicate that some questions
remain about the reliability, effectiveness, and enforceability of
the remedy, any covenant not to sue for present liability, if
appropriate at all, .would have ito be conditioned on a demonstration
of the effectiveness ana reliability of that remedy.
Covenants not to sue for future liability are also made
contingent on the criceria set forth in Section 122(f)(1) and the
factors enumerated in Section 122(f)(4). When these conditions
are met,-EPA may, in its discretion, provide a covenant not to sue
for future liability but such a covenant, according to Section
122(f)(3), may not take effect until EPA certifies that the remedial
action has been completed. Prior to certification, therefore, the
settling party remains fully responsible for any future liability
for future remedial action necessary at the site. Following certi-
fication, unless a special covenant under Section 122(f)(2) is
required or extraordinary circumstances are present, the covenant
not to sue for future liability is subject to a reopener covering
(1) unknown conditions as mandated by Section 122(f)(6)(A), (2)
any other conditions EPA deems advisable based on the Section
122(f)(4) factors, and (3) future enforcement activity necessary
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and appropriate to assure protection of public health, welfare,
and the environment as provided in Section 122(f)(6)(C).
B. Certification of Completion of the Remedial Action
Section 122(f)(3) specifies that a covenant not to sue for
future liability shall not take effect until EPA certifies the
remedial action is complete, tn the context of paragraph 122(f)(3),
EPA interprets completion of the remedial action as that date at
which remedial construction has been completed. Where a remedy
requires operational activities, remedial construction would be
judged complete when it can be demonstrated that the operation of
the remedy is successfully attaining the requirements set forth in
the ROD and RD.
The exact point when EPA can certify completion of a
particular remedial action depends on the specific requirements of
that remedial action. Each consent decree should include a detailed
list of the those activities which must be completed before certi-
fication can occur.
Certification of completion under Section 122(f)(3) does not
in any way affect a settling parties' remaining obligations under
the consent decree. All remedial activities, including maintenance
and monitoring, must be continued as required by the terms of the
consent decree.
C. Reopeners
Under the CERCLA Interim Settlement Policy, £PA required that
there be included in every consent decree reopeners covering
situations where EPA received additional information after the
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- 9 -
time of the agreement regarding site conditions or scientific
determinations which indicates that the site may pose an imminent
and substantial endangerraent to the public health or welfare or
to the environment. Under Section 122(f), a slightly different
approach to reopeners must be followed. Section 122(f) provides
that for future liability, no covenant not to sue shall be effective
prior to certification of completion of the remedial action.
Technically, therefore, since there is no release of' future liability
prior to certification, there is no need for reopeners in that time
period. Reopeners for future liability only become necessary after
certification, when the covenant not to sue takes effect.
As to reopeners regarding future liability, Congress expressly
required a reopener tor unknown conditions. In contrast to the
Interim Settlement Policy, however, Congress expressly eliminated
any endangerment threshold for that reopener. Congress also autho-
rized EPA, in Section 1 22(f)(6)(C), to include any other reopeners
"necessary and appropriate to assure protection of public health,
welfare, and the environment." EPA believes that it is in the
public interest and consistent with Congressional intent to require
a second reopener covering situations where additional information
reveals that the remedy is no longer protective of public health or
the environment. It is not in the public interest to release
responsible parties from liability for additional response actions
made necessary by new information, given, as noted in the Interim
Settlement Policy, "the current state of scientific uncertainty
concerning the impacts of hazardous substances, our ability to
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- 10 -
detect them, and the effectiveness of remedies ac hazardous waste
sites." 50 Fed. Reg. at 5039.
Congressional concern with situations where the remedy tails
to protect public health or the environment can be seen in SARA's
mixed funding and five-year review provisions. The mixed funding
provision in Section 122(b) states that if mixed funding is adopted
at a particular site, "the Fund shall be subject to an obligation
for subsequent remedial actions at the same facility but only to
the extent that such subsequent actions are necessary by reason of
the failure, of the original remedial action. Such obligation shall
be in a proportion equal to, but not exceeding, the proportion
contributed by the Fund for che original remedial action." This
provision anticipates that the responsible p-arties who have settled
retain liability for additional work necessary to address remedy
failure. Further support for this proposition can be found in the
Conference Report statement that the continuing proportional Fund
obligation in mixed funding cases is a settlement incentive. H.R.
Rep. No. 99-962, 99th Cong., 2d Sess. 252 (198o). The Fund's
continuing obligation would only be an incentive to settlement if
in non-mixed funding cases settling parties retained liability
where the remedy fails to protect public health or the environment.
The five-year review provision in Section 121(c) also addresses
Congress1 concern for situations where the remedy fails to protect
public health and the environment by mandating periodic reviews
to assure that remedial actions do just that. If a remedy is found
not to protect public health or the environment, the statute provU
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that EPA may take or require such additional remedial action as is
necessary.
Congressional concern that remedial action might fail to
protect public health and the environment was not limited narrowly
to a focus on the reliability of the remedial technology at the
sice. Rather, this concern apparently extended to any situation
in the future at the site which is judged to present a threat to
public health and the environment. EPA will follow .this interpre-
tation of remedy failure. For example, should health effects
studies reveal that the health-based performance levels relied
upon in the ROD are not protective of public health or the environ-
ment, and that public health or the environ-ient will be threatened
without further response action, then the EPA could invoke the
remedy failure reopener. The reopener for remedy failure, however,
is not meant to require changes purely based on advances in tech-
nology. Under the reopener, EPA would not compel settling parties
to implement newly-developed, more permanent remedial technology
unless EPA can show that the present remedy does not protect public
health or the environment. Neither is the remedy failure reopener
intended to give EPA the option to make changes in a remedial
action absent additional information received following the entry
of the consent decree. EPA does not consider the phrase "informa-
tion received, in whole or in part, after entry of the consent
decree," as used in the attached model covenant, to include a new
analysis of the same information comprising the record of the
initial remedy selection decision.
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In short, this reopener is similar to the reopener for new
scientific information provided for in the Interim Settlement
Policy, although the imminent and substantial endangerment thresh-
old has not been included. To require a showing of imminent and
substantial endangerment would be inconsistent with the provision
in Section 122(f) of SARA with regard to unknown conditions as well
as the provisions concerning future response work in Section 122(f)
(6)(C) and Section 121 (c). Moreover, it is the Agency's view that
requiring different showings for the two reopeners would lead to
protracted disputes about which reopener applied to situations
necessitating additional response activity.
EPA believes that in order to give settlors some measure of
certainty prior to certification, the most reasonable means to
implement the authority in Section 122(f) is to specify in consent
decrees those pre-certification situations in which EPA would seek
further remedial action. Those situations at a minimum would
include the circumstances described in the future liability
reopeners:
1) discovery of previously unknown conditions; and
2) situations where additional information reveals that
the remedy is no longer protective of public health and
the environment.
Thus, prior to certification of completion of the remedial action,
EPA will reserve its right to institute new proceedings to compel,
or recover costs for, further response action made necessary by
information received, in whole or in part, after entering of the
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- 13 -
consent decree related to either unknown conditions or remedy
failure. Following certification of completion of the remedial
action, EPA will reserve its right to institute proceedings
only to address information received after certification of
completion of the remedial action related to unknown conditions or
remedy failure. Pre-certification reopeners for unknown conditions
and remedy failure apply to all covenants not to sue, even to
special covenants under Section 122(f)(2).
Part: :ularly in the pre-certification period, the relationship
of the remedy to the covenant and the reopeners should be carefully
considered. EPA taay insist on broader reopeners where the consent
decree does not provide for a remedy that meets the preference in
Section 121(b)(l) for a permanent and significant reduction of the
volume, toxicity, or mobility of the hazardous substances. In
those instances, EPA shall assess the need for broader reopeners
in the covenant not to sue based on the factors identified in Sec-
tion 122(f)(4). Nevertheless, once EPA has determined what reopeners
are appropriate for the pre-certification period, EPA will agree
in the covenant to institute new proceedings only where those
reopener provisions are met.
Although covenants not to sue must include, at a minimum, the
above-described reopeners during the pre-certification period,
reopeners are not mandated in all circumstances in covenants not
to sue applicable to the period following completion of the remedial
action. Two statutory provisions address this period. First,
Section 122(f)(2) mandates that EPA issue a special covenant not
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. 14 -
to sue for future liability in two narrow circumstances: (1) off-
site disposal following rejection of an onsite remedy complying
with the NCP; and (2) complete destruction of the hazardous sub-
stances. Such a special covenant may not contain reopeners for
the post-completion period. Second, Section 122(f)(6)(B) specifies
that in extraordinary circumstances EPA may exclude a post-comple-
tion reopener for unknown conditions. This extraordinary circum-
stance waiver is only available where other terms in' the agreement
provide all reasonable assurances that public health and the
environment will be protected. As a policy matter, EPA would also
not include the reopener for later-received information relating
to remedy failure in a situation where the c-jnditions in Section
122(f)(6)(B) are met. EPA, however, is barred from granting
covenants not to sue without reopeners absent a finding that a
special covenant is appropriate or that extraordinary circumstances
exist.
D. Extraordinary Circumstances
Section 122(f)(6)(B) provides that EPA may forego including
a reopener for unknown conditions when extraordinary circumstances
exist and "other terms, condition, or requirements of the agreement
... are sufficient to provide all reasonable assurances that public
health and the environment will be protected from any future
releases at or from the facility."
The legislative history on this provision indicates that it
should be narrowly applied. The House-Senate Conference Report
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states that "[t]his provision should be implemented in a manner
consistent with the current application of the Administration
settlement policy as to unknown conditions." Conference Report,
H.R. Rep. No. 99-962, 99th Cong., 2d Sess. 255 (1986). By this
statement, the Conference Committee endorsed EPA's extremely
limited use of the extraordinary circumstances waiver for reopeners
contained in the CERCLA Interim Settlement Policy.
In Section 122(f)(6)(B), Congress lists as relevant factors
regarding extraordinary circumstances: "those [factors] referred
to in [Section 122(f)](<0 and volume, toxicity, mobility, strength
of evidence, ability to pay, litiganive risks, public interest
considerations, precedential value, and ine^-iities and aggravating
factors." EPA has already explained how many of these factors will
be interpreted in the Interim Settlement Policy.
A finding of extraordinary circumstances alone is not
sufficient to meet the requirements of Section 122(f)(6)(B). That
provision also mandates that the unknown conditions reopener may
only be waived if other terms of the agreement provide all reason-
able assurances that public health and the environment will be
protected. One factor which may be considered in determining
whether all reasonable assurances have been provided is whether a
settling party has offered a premium payment to insure against the
risk that future remedial action will be required at the site.
One of the instances where EPA has used the extraordinary
circumstances exception in the past is where a responsible party
has filed for bankruptcy. Whether or not a responsible party's
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bankruptcy filing presents extraordinary circumstances will depend
on a number of case-specific factors involving, among other things,
the grounds upon which the party is liable, and the type of
bankruptcy relief - liquidation or reorganization - that is being
sought by the debtor. EPA will not grant a debtor a covenant not
to sue which Ls broader than a discharge under the bankruptcy laws
but neither will EPA make settlement impossible by insisting on a
covenant narrower than the discharge the debtor is entitled to by
operation of the bankruptcy laws.
Waivers of reopeners under Section 122(f)(6)(B) will require
prior approval by the Assistant Administrators for OECM and OSWER
and the Assistant Attorney General as provided in the Interim
Settlement Policy. 50 Fed. Reg. at 5040.
E. Special Covenants
Special covenants not to sue under Section 122(f)(2) are
authorized for two extremely limited circumstances. First, under
Section 122(f)(2)(A) a special covenant is appropriate where EPA
selects a remedial action involving offsite disposal after rejecting
a proposed onsite remedy which is consistent with the NCP. This
special covenant, it should be emphasized, is only available where
EPA has determined that an onsite remedy fully complies with the
requirements of the NCP, but that onsite remedy is rejected in
favor of offsite disposal. It is not sufficient for EPA to have
merely considered onsite proposals in choosing the remedy. Further,
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the Conference Report makes clear that this provision was adopted
in the context of Section 121 requirements regarding offsite disposal
and therefore EPA will only grant this special covenant in decrees
involving remedies selected under Section 121. Conference Report,
H.R. Rep. 94-962, 99th Cong,, 2d Sess. 254 (1936).
Second, under Section 122(f)(2)(B). EPA will issue a
special covenant where the remedy involves each of the following
elements:
(1) treatment- of hazardous substances so as to
(2) destroy, eliminate, or permanently immobilize the
hazardous constituents of such substances, and
(3) EPA determines that
(a) the substances no longer present any current or
currently forseeable future significant risk to
public health, welfare, or the environment,
(b) no byproduct of the treatment or destruction process
presents any significant hazard to public health,
welfare, or the environment, and
(c) all byproducts are themselves created, destroyed,
or contained in a manner which assures that such
byproducts do not present any current or currently
foreseeable future significant risk to public
health, welfare, or the environment.
The term "permanent immobilization" applies only to a site where
treatment technologies change the fundamental nature and character
of the hazardous substances so that no person faces a significant
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- 18 -
risk of being exposed to Che hazardous substance. Conference
Report, H.R. Rep. No. 99-962. 99th Cong., 2d Sess. 254-55 (1986).
Use of "permanent" storage containers or other containment technology
does not qualify as permanent immobilization under this provision.
Finally, under either of the two circumstances'in Section
122(f)(2), the special covenant applies only to those hazardous
substances actually transported offsite or destroyed, eliminated,
or permanently immobilized. Thus to the extent that hazardous
substances remain onsite, the standard reopeners for future
liability must be included in the covenant not to sue. For
example, Site X has soil contamination to a depth of 30 feet but-
under present health standards only the first five feet need to
be incinerated. Assuming the incineration process meets the
requirements of Section 122(f)(2)(B), a special covenant may be
granted for the incinerated soil but under no circumstances would
a covenant not to sue for future liability without the standard
reopeners be issued for the contaminated lower 25 feet of soil.
IV. Status of Interim Settlement Policy
The Interim Settlement Policy remains in effect to the extent
not contradicted by SARA or by this or any other subsequent
guidance. Nonetheless, a number of points from that policy are
worth re-emphasizing:
1) covenants not to sue will not be issued for redisposal
liability unless Section 122(f)(2)(A) applies;
2) covenants not to sue in agreements where EPA has performe''
the remedy and EPA is seeking only the recovery of its
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- 19 -
costs should be no more expansive than covenants not to
sue in consent decrees where the responsible parties
agree to do the remedy;
3) a covenant not to sue may be given only to the responsible
party providing consideration for the covenant;
4) che covenant not to sue must not cover any claims other
than those involved for that site - thus unless unusual
factors are present the covenant not to sue- will apply
only to claims under Sections 106 and 107 of CERCLA. and
Section 7003 of RCRA;
5) the covenant not: to sue muse expressly be limited to
civil claims;
6} a covenant not to sue for a remedial investigation and
feasibility study or a removal action must be limited to
the work actually completed;
7) a covenant not to sue regarding natural resources may
only be provided by the Federal trustee responsible for
those resources;
8) responsible parties must release any related claims
against the Hazardous Substances Superfund.
DISCLAIMER
The policies and procedures established in this document
are intended solely for the guidance of government personnel.
They are not intended and cannot be relied upon to create any
rights, substantive or procedural, enforceable by any party
in litigation with the United States. The Agency reserves the
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- 20 -
right to act at variance with these policies and procedures and
to change then at any time without public notice.
Attachment
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COVENANT NOT TO SUE
1. A. Except: as specifically provided in Subparagraph C, the
United States covenants not to sue the settling parties for
Covered Matters. Covered Matters shall include any and all
civil liability to the United States for causes of action
arising under §§ 106 and i07(a) of CERCLA and S 7003 of RCRA
relating to the Site.
5. With respect to future liability, this covenant not to sue
shall take effect upon certification by EPA of the completion
of the remedial action. A determination regarding certifi-
cation of completion will be made by EPA within [one year]
of successful completion of the activities listed in
Appendix .
C. Notwithstanding any other provision in this Consent Decree,
the United States reserves the right to institute proceedings
in this action or in a new action (1) seeking to compel
Settling Parties to perform additional response work at the
Site or (2) seeking reimbursement of the United States's
response costs, if:
1) for proceedings prior to EPA certification of
completion of the remedial action,
(i) conditions at the Site, previously unknown
to the United States, are discovered after the
entry of this Consent Decree, or
(ii) information is received, in whole or in part,
after the entry of this Consent Decree,
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- 2 -
and these previously unknown conditions or this
information indicates that the remedial action is
not protective of human health and the environment;
2) for proceedings subsequent to EPA certification
of completion of the remedial action,
(i) conditions at the Site, previously unknown
to the United States, are discovered after the
certification of completion by EPA, or
(ii) information received, in whole or in part,
after the cert if ication of completion by EPA.i
and these previously unknown conditions or this
information indicates that the remedial action is
not protective of human health and the environment.
D. The United States's right to institute proceedings in this
action or in a new action seeking to compel Settling
Parties to perform additional response work at the Site
or seeking reimbursement of the United States for
response costs at the Site, may only be exercised where
the conditions in subparagraph C are raec. [Caution: check
to insure that this subparagraph does not waive other
reserved rights in the decree relating to additional response
work].
E. Notwithstanding any other provision in this Consent Decree,
the covenant not to sue in subparagraph A shall not relieve
the settling parties of their obligation to meet and maintain
compliance with the requirements set forth in this Consent
-------
- 3 -
Decree including the Record of Decision and Remedial Design
for the Site which is incorporated herein.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUL 21 1987
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT
FROM;
TO
IflteMm Guidance
and ReraedJa7 Res
n State Participation 1n Pre-Remedlal
nse
ns'toVPortj
stant Administrator
Regional Administrator, Region I - X
Regional Counsel, Regions I - X
Director, Waste Management Division
Regions I, IV, V, VII, and VIII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Region III and VI
Director, Toxics and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
Director, Environmental Services Division
Regions I, VI, and VII
Regional Assistance Management Contacts, Regions I - X
Regional Financial Management Office, Regions I • X
On October 24, 1986, you received the Implementation Strategy
for Reauthorized Superfund which Included transition guidance for
short term priorities. OSWER 1s now developing Interim guidance
to assist the Regions 1n the Implementation of reauthorlzation
during the period when regulations are being developed and promul-
gated and official guidance documents are being revised. This
memo transmits Information on State participation in pre-remedlal
and remedial response. Removal and enforcement guidance-wi11
be Issued separately.
During this interim period as policy decisions are being
made, many issues may still require case-by-case determinations.
Questions on the attached guidance should be directed to Jan W1ne
or Betty Winter on (FTS) 382-2443 or to the appropriate Regional
coordinator in Headquarters.
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9375.1-09
-2-
Attachment
cc: Administrator
Deputy Administrator
Associate Administrator for
International Activities
Associate Administrator for
Regional Operations
Assistant Administrator for
Administration and Resources Management
Assistant Administrator for
Enforcement and Compliance Monitoring
General Counsel
Assistant Administrator for
Policy. Planning and Evaluation
Assistant Administrator for
External Affairs
Inspector General
Assistant Administrator for
Air and Radiation
Assistant Administrator for
Pesticide and Toxic Substances
Assistant Administrator for
Research and Development
-------
9375.1-09
CERCLA REAUTHORIZATION INTERIM GUIDANCE
ON STATE PARTICIPATION IN
PRE-REMEDIAL AND REMEDIAL RESPONSE
I. SCOPE OF GUIDANCE
This guidance specifically addresses State participation
1n pre-remed1al and remedial response actions affected by the
Superfund Amendments and Reauthor1zat1on Act (SARA), which
amended the Comprehensive Environmental Response and Compensa-
tion Liability Act (CERCLA). The guidance Is effective Immediately,
and supplements the Implementation Strategy for Reauthorized
Superfund which was dated October 24, 1986. This guidance 1s
applicable during the Interim period prior to the promulgation
of regulations and the revision of official guidance documents
to Implement SARA. This guidance Is subject to change as the
regulations are made final, and as revisions to the official
guidance documents are completed.
This guidance 1s organized as follows:
I. Scope of Guidance
II. ' State Cost Share Requirements
A. Advance Match Policy
1. Advance Match Policy Prior to SARA Enactment
2. Advance Match Policy After SARA Enactment
3. Reimbursement to States for Advance Match
B. Cost Share for Publicly Operated Facilities
1: Cost Share Requirements Prior to Enactment of SARA
2. Cost Share Requirements After Enactment of SARA
C. State Credit Provisions
1. CERCLA Credits for 1978-1980 Response Activities
2. Credit for 1980-1986 Response Activities
3. Post-SARA Credit Opportunities
4. -Additional SARA Credit Requirements
III. Other State Assurance Requirements
A. Operation and Maintenance (O&M)
1. Current Requirements/Guidance
2. Ground and Surface Water Restoration
B.
C.
D.
Off-site Disposal
Access and Acquisition of Property
Twenty-Year Waste Capacity
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9375.1-09
IV. Cooperative Agreement Requirements
A. Statutory 90-Day Review of Cooperative Agreement (CA)
Application
B. CAs with Indian Tribes
C. Eligible Funding Activities Under SARA
V. Pre-Remedlal Requirements
A. CAs for Pre-Remedlal Activities
B. Citizen Petitions for Preliminary Assessments (PAs)
VI. SARA State Involvement Requirements
A.- Status of Regulations
B. Interim Guidance for State Involvement
VII. Contract Requirements
A. Minority Contracting Reporting Requirements
B. Conflict of Interest Requirements
C. Contractor Indemnification Requirements
II. STATE COST SHARE REQUIREMENTS
A. Advance Match Policy
1. Advance Hatch Policy Prior to SARA Enactment
Prior to the enactment of the Superfund Amendments and
Reauthorlzation Act (SARA), the Agency's advance match policy
gave States an opportunity to meet their required cost share for
remedial action by permitting States to contribute funds during
remedial planning at a National Priority List (NPL) site. States
could request reimbursement for any unused or excess advance
match at the conclusion of remedial action.
CAs and Superfund State Contracts (SSCs) covering such
situations contained language similar to the following:
Funds for remedial planning activities at [site], provided
by the State 1n this agreement, are not required for matching
purposes. They may be applied toward the State's required
cost share for any subsequent fund-financed projects at
[site]. Expenditure of these funds, however, does not
ensure that fund-financed remedial actions will be Implemen-
ted at this site. The State may request reimbursement of
these expenditures should they not be required to meet the
State's ultimate cost-sharing obligation at the site.
Reimbursement by the Environmental Protection Agency (EPA)
is subject to the availability of appropriated funds and,
If costs were Incurred under a cooperative agreement, veri-
fication of the allowability of State's expenditures.
-2-
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9375.1-09
2. Advance Match Policy After SARA Enactment
SARA does not authorize States to advance match on remedial
planning activities. Rather, it limits advance natch to remedial
action expenditures only, for credits. Therefore, EPA has discon-
tinued the advance match policy.
Advance match provided before September 30, 1985, 1n
accordance with a CA or. SSC are not subject to change. However,
agreements consumated after September 30, 1985, are affected
by Section 104(d)(l)(C) of CERCLA, as amended, by SARA. Section
104{d)(1)(C) allows States to be reimbursed for advance match'
contributions made from September 30, 1985 to October 17, 1986.
3. Reimbursement to States for Advance Match
Section 104(d)(l)(C) of CERCLA, as amended by SARA, authorizes
EPA to reimburse a State for the share of costs for which EPA
would be responsible 1f the State expended these funds subject
to a CA during the period beginning September 30, 1985,
and ending on October 17, 1986.
We believe Congress Intended reimbursement to be available
regardless of the type of Section 104{d)(l) agreement used to
undertake a response action at an NPL site. Therefore, since
EPA permitted States to advance match on both State and Federal
lead remedial planning projects, therefore EPA will reimburse
States that contributed cash pursuant to a SSC.
Reimbursements are subject to the availability of appro-
priated funds. For cooperative agreements, costs must be
verified by audit. Regions should Identify the States that want
reimbursement and should Include reimbursements on the Superfund
Comprehensive Accomplishment Plan (SCAP) as appropriate.
For reimbursements on State-lead actions, advance match
CAs should be amended as soon as funds become available. The
following language, or Its equivalent, may be used 1n amendments
to these CAs:
Pursuant to §104(d)(1) (C) of CERCLA, as amended, the
State of has requested reimbursement of $
of State funds expended for response actions at (site).
These actions were taken during the period beginning
September 30, 1985 and ending on October 17, 1986,
-3-
-------
9375.1-09
pursuant to cooperative agreement # . The State
has requested reimbursement of the Federal share of the
costs Incurred by the State at this sue. Verification
of the allowability of expenditures will be done by
audit and, if necessary, the letter of credit will be
adjusted.
Reimbursement or cash advance matches tor Federal-lead
actions will be accomplished by amending the SSC using language
similar to the precedi ng' paragraph. This Mill create an
obligation for the Agency, and with proper agency approvals, your
financial management office will initiate preparation of a check
for reimbursement to the State.
If a State does not seek reimbursement, advance 'match will
be used to off-set the State's required cost share for remedial
action at the site. In this case, advance match may not be used
for credit at any other site nor reimbursed until fund-financed
remedial response activities have been concluded.
State advance match is tracked in the Financial Management.
System (FMS). Adjustments to the balance (either reimbursement
or use as cost-share) is presently handled in the Headquarter's
Financial Management Division. This responsibility will eventually
be transferred to Regional Financial Management Officers.
B. Cost Share for Publicly Operated Facilities
1. Cost Share Requirements Prior to Enactment of SARA
Section 104(c)(3) of CERCLA requires States to share In the
cost of Fund-financed remedial actions performed at sites on the
NPL. Prior to the enactment of SARA, the percentage of a State's
cost share depended on the ownership of the site at the time of
the hazardous substance disposal. At privately owned sites,
the State was required to pay only 10 percent of remedial action
costs. At publicly owned sites (those owned by a State or political
subdivision thereof), the State was required to fund at least
50 percent of all response costs. This included all removals,
remedial planning, remedial action and that phase of the remedial
action necessary to ensure that remedy was operational and func-
tional. A State was not required to pay its share of removal
and remedial planning costs at a publicly owned site until a
Fund-financed remedial action was undertaken there. State
cost snares could be in the form of cash and/or services.
2. Cost Share Requirements After Enactment of SARA
Under section 104(c)(3) of CERCLA, as amended, States are
required to cost share a minimum of 50 percent of all response
costs at any facility operated by a State or political subdivision
-4-
-------
9375.1-09
thereof at the time or disposal of hazardous substances at the
facility. Section 104(d)(l) of CERCLA, as amended by SARA, defines
response to Include enforcement activities. Enforcement activities
that require a cost share are discussed below under State credit
provisions.
SAKA changes the criteria for the 50 percent cost share from
ownership to operation. States will be required to fund 50
percent of any removals taken at publicly operated facilities at
whi'ch remedial action is' also taken. A State is also still
required to pay its share of remedial planning costs at a publicly
operated site when a Fund-financed remedial action is undertaken
there. The 10 percent State cost share requirement for remedial
action costs still applies to privately owned sites and, since
the enactment of SAKA, it applies to those sites which were
publicly owned, but not operated, at the time of disposal of
hazardous substances at those sites. State cost shares can still
be in the form of cash and/or services. From the date of SARA
enactment forward, all new CAs and SSCs must contain these new
cost share requirements.
C. State Credit Provisions
The credit provisions contained in SAKA are complex. Each
provision and implementation activities are contained in Exhibit I
and discussed below.
1. CERCLA Credits for 1978-1980 Response Activities
Before the amendments, CERCLA Section 104(c)(3)(C) allowed
a' State to off-set its cost share with a credit for site-specific
expenses associated with response taken by it or a political
subdivision at an NHL site between 1978-1980. SARA has kept
this provision intact with one modification that is also applicable
to all new credit provisions of section 104(c)(5)(F) of the new
amendments. That is, SARA permits excess credits earned between
19/8-198U at one site to be used by the State to oft-set its
cost share at another site. Any State still wishing to receive
credit for 1978-80 expenditures should submit an accounting of
its eligible costs as soon as possible, but no later than the
time when all assurances are required.
Current guidance (contained in the manual State Participa-
tion in the Superfund Program) on the submission ot credit period
costs will remain in effect. That guidance includes the following
requi rements:
0 States must identify the specific amount being claimed
for credit. Estimated amounts are not acceptable.
-5-
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Exhibit I
SUMMARY OF SUPERFUND CREDIT PROVISIONS
3.1-09
o»
CERCLA 1978-1980 Credit Provisions
State or political subdivision
expenditures or obligations from
1978-1980 for response actions at
an NPL site may be used by the
State to off set Its cost share
at that site.
Expenditures/obligation must be
documented, direct, out-of-pocket
non-Federal funds.
Credit is limited to cost eligible
response actions and claims for
damage compensable under §111.
Credit granted may not exceed
total response costs relating
to the release.
SARA 1978-1980 Credit Provisions
State or political subdivision
expenditures or obligations at
an NPL site from 1978-1980 for
cost-eligible response actions
and claims compensable under
§111 may be used by the 'State
to off-set its cost share.
The President may require item-
by-item approval of each
expenditure as a condition for
granting credit [§104(c)(5)(E)].
Excess credit may be used to
reduce a State's required cost-
share for remedial action at
another site [§104(c)(5)(F)].
A State is not entitled to any
direct payment of excess credit
[§104(c)(5)(F)J.
Implementation from the Date of
Reauthorlzation (10-17-86) forward
0 Credit summary must be provided
by State before CERCLA fund-f'inanced
remedial action begins
0 Credit is entered and tracked by
FMD
- Unverified credit tracked until
IG verifies by audit
- Verified credit is entered and
tracked by FMD
0 CA/SSC required before credit
earned at a site can be used
at that site to off -set cost share
0 Excess credit earned at one site
may be used to off set State's
required cost share at another
site when:
- Cost estimates In ROD for that
site and/or final bid price
for the remedial action Indicate
at least 50% of credit earned at
the site will remain as excess,
- A consent decree has been entered
In court to clean up the site
or to fund the entire remedial
action, or
- A no action alternative is
selected
Excess credit will not be
reimbursed.
-------
SUMMARY OF S
'IND CREDIT PROVISIONS
75.1-09
v . 19BO-19B6 Credit Provisions
0 No post-CERCLA credits allowed
0 States required to share (50/50)
in the cost of any response under-
taken at a site owned by the State
or political subdivision.
SARA 1980-1986 Credit Provisions
0 If State shared 50/50 in the
cost of response at a site
publicly owned but not operated
publicly
by the St
by the State or a political sub-
division, then the State may
receive a credit for expenses
incurred in excess of 10%.
Credit opportunity Is limited
to State expenses incurred
pursuant to a cooperative
agreement or contract in effect
during 1980-1986.
Credit applicable to expenses
incurred for all phases of
response.
Administrator may require item-
by-1tem approval of each
expenditure as a condition of
granting credit [§104(c)(5)(F)J:
- CA provides Item-by-item list
of approved expenditures,
- SSC contains dollar value of
cash contributions
Excess credit may be applied to
any site [§104(c)(5)(F)].
A State is not entitled to any
direct payment of excess credit
[§104(c)(5)(F)].
Implementation From the Date of
Reauthorizatlon (10-17-86) forward
0 State cost share for remedial
action at publicly owned but
not operated sites Is now 10%
L§l04(cK3HC)J.
0 State must share In the cost
(50/50) for any sums expended
at a site operated by the State
or political subdivision
C§l04(c)(3)(C)(11)].
Cost Incurred by State via CA or
SSC In excess of 10% at publicly
owned sites entered as credit In
THS~7~
- Unverified credit tracked until
IG verifies by audit
- Verified credit entered and
tracked by FMD
Amend CA/SSC at time of remedial
action to apply credit earned at
site to required cost share.
Excess credit earned at one site
may be used to off set State's
required cost share at another
site when:
- Cost estimates in ROD for that
site and/or final bid price for
the remedial action indicate
at least 50% of credit earned
at the site will remain as
excess,
- A consent decree has been entered
In court to clean up the site or
to fund the entire remedial
action, or
- A no action alternative is select-
ed.
0 Excess credit will not be. reimbursed
-------
Pos^-oERCLA Credit Provisions
0 Not applicable.
SUMMARY OF SUP »ND CREDIT PROVISIONS
Post-SARft Credit Provisions
0 Credit opportunities limited
to remedial action only
[§104(c)<5)(A)]:
- State expenses for remedial
action are creditable,
- Political subdivision expenses
for remedial action are not
creditable.
" State expenses for remedial
action at an NPL site may be
used as credit, 1f [§104(c)(5)
00
t
- State remedial action expenses
are Incurred pursuant to a
CA/SSC,
- State expenses for remedial
action are reasonable, docu-
mented, direct, out-of-pocket
non-Federal funds
• CA documents costs to be
Incurred, or
• SSC contains dollar value
of cash contributions.
0 State expenses for remedial
action at a non-NPL site may
be used as credit. 1f site is
ultimately listed on NPL, and
If [§104(c)(5)(B)]:
- State enters Into CA/SSC to
establish credit
- State expenses for remedial
action are reasonable,
documented, direct out-of-
pocket non-Federal funds
[§104(cH5)(E)J:
• CA documents costs Incurred.
- EPA determines expenses would
have been covered bjr'CfiMf the
site had been listed at the
time costs were Incurred.
5.1-09
Implementation From the Date of
Reauthorization (10-17-86] forward
' CA/SSC required before State under-
takes remedial action at an NPL site
- Expenses/cash contributions are
entered and tracked by FHD as
credit
- Unverified credit tracked until
IG verifies by audit
- Verified credit Is entered and
tracked by FMD.
0 CA required to document costs In-
curred by a State at non-NPL site
which 1s subsequently listed:
- CA required when site is listed
- EPA Conducts technical review of
actions taken to ensure remedial
action was not Inconsistent with
NCP
- Cost of eligible activities
entered and tracked by FHD as
credit
- Unverified credit tracked until
IG verifies by audit
- Verified credit is entered and
tracked by FHD.
0 Excess credit earned at one site
may be used to off set State's
required cost share at another site
0 Excess credit will not be reimbursed
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9375.1-09
0 States must identity which units of government
(State agency, County, local) incurred the credit
costs where the statute allows credit for costs
Incurred by political subdivisions.
0 Costs by governmental unit must be provided by cost
element (i.e., labor, travel, contracts, etc.).
0 A brief description ot the specific function per-
formed by each governmental unit as it pertains
to the CERCLA site must be provided.
0 Each governmental unit must provide a certifi-
cation that the credit period costs have not been
reimbursed or used for matching purposes under any
other federal program or grant. In addition, the
governmental unit's certification must also state
it was not reimbursed for any of its costs by non-
Federal sources [i.e., potentially responsible
parties (PRPs)J. This certification must be signed
by the State's fiscal manager or the State agency's
financial director.
0 States must send requests for verification of
credit to the Regions. The Financial Management
Office in each Region is responsible for entering
the credit in the Financial Management System (FMS),
reporting status of credits to the remedial project
manager (RPM), and ensuring that debits from the credit
are recorded wnen a credit is used to off-set a State's
cost share requirements.
Section 104(d)(l) of CERCLA, as amended by SAKA, defines the
term "response" to include enforcement. Therefore, the list of
activities that may be eligible for credit include the following:
* Conducting PRP searches and issuing notice letters
at NHL sites;
0 Overseeing of PRP conducted response actions;
0 Reporting to public and private party response
actions; and
0 Negotiating and administrating judicial enforcement
actions to encourage or compel PRPs to initiate response
actions at NPL sites.
-9-
-------
9375.1-09
2. Credit for 1980-1986 Response Activities
As discussed above, the previously implemented 50-50 cost
share for publicly-owned, but not operated, facilities changes
to 90-10. Section l04(c)(5)(D) of CERCLA as amended by SARA,
authorizes credit tor 91) percent of State expenditures for all
response costs incurred at facilities owned, but not operated,
by such State or political subdivision thereof from December 11,
1980 to October 17, 1986.
If a State wants to receive credit toward its cost share
obligations for expenses pursuant to this provision (1) a
CA or SSC must have been in effect prior to October 17, 1986
and (2} State expenditures must have been incurred at a facility
owned, but not operated, by a State or political subdivision
pursuant to the agreement.
It has been EPA's interpretation ot CtKCLA that remedial
planning/removal cost shares were not required until the time of
remedial action. So while CAs/SSCs may have been in effect for!
publicly-owned sites, a preliminary survey by Headquarters Jndi&tes
that to date no States have actually contributed funds for
actions at these facilities.
3. Post-SARA Credit Opportunities
a. NPL Credit Opportunities
Section lU4(c)(5)(A) ot CERCLA, as amended, authorizes credits
for remedial actions at NPL sites for documented State costs.
For credits to be applied at an NHL site, a CA will be required
to document expenses before the State incurs costs. A SSC
will be required tor cash contributions at a Federal-lead NPL
site.
b. Non-NPL or Pre-Agreement Credit Opportunities'
Section 104{cJ(5)(B) of CERCLA, as amended, authorizes
credits for State expenditures for remedial action at non-NKL
sites prior to listing or prior to a CA or SSC. For credits
to be applied for non-NPL or pre-agreement expenditures, a CA
will subsequently be required to document State expenses and
project activities conducted after October 17, 1986, rather than
a SSC since a SSC is used by EPA to obtain a State's cost share
for Federal-lead Fund-financed actions.
The State should consult with EPA on the proposed remedy
for the site after the RI/FS has been completed and a site has
been ranked to determine that it meets NPL listing criteria.
-10-
-------
9375.1-09
After the site has been listed on the final NPL, the State may
..enter Into a CA with EPA to apply Its expenditures for remedial
action as credit toward its cost-share obligations.
Before approving a credit for post-SARA remedial actions for
non-NPL or pre-agreement sites, the Regions will conduct a
technical review of the actions taken to ensure that they were
not inconsistent with the requirements of CERCLA, as amended, and
the National Contingency Plan (NCP). At a minimum, the State
must demonstrate that:
0 The investigation of the facility was at least as
broad in scope as described in 40 CFR 300.68(d) and
(e);
0 A program for worker health and safety was implemented,
as described in 40 CFR 300.38(a);
0 The remedy complies with the cleanup standards under
CERCLA Section 121; that is, it
protects human health and the environment;
attains compliance with applicable or relevant
and appropriate Federal and State public health
and environmental requirements;
is cost effective; and
utilizes permanent solutions and alternative
treatment technologies or resource recovery
technologies to the maximum extent practicable.
0 A public comment period prior to selection of the
remedial action was provided, consistent with the
requirements of 40 CFR 300.67(d) and (e};
0 Documentation was collected and maintained to form the
basis for cost recovery, as required by 40 CFR 300.69(a);
and
0 Procedures equivalent to those 1n 40 CFR Part 30; 40
CFR 300, Subpart F of the revised NCP; and 40 CFR Part
33 were followed if contractors or equipment were
procured for the remedial action.
A cooperative agreement is required to establish credit
whether the remedial action is completed, underway, or about to
begin at the time the site is listed.
-11-
-------
9375.1-09
4. Additional SARA Credit Requirements
Sections 104(c)(5)(A), (E) and (F) of CERCLA, as amended,
establish specific requirements for granting States credit
toward their cost-share obligations.
Credit under paragraph Section 104(c)(5) of CERCLA, as
amended, is limited to reasonable, documented, direct out-of-pocket
expenditures by States pf non-Federal funds. In addition, SARA
strengthens EPA's policy of requiring item-by-item approval of
expenditures as a condition of granting credit under section
104(c)(5) of CERCLA. EPA will require prior approval before
a State expends funds at a site as a further condition of granting
credit at NPL sites. EPA does not plan to require prior approval
of expenditures at non-NPL sites or prior to an agreement with
EPA. Credits at NPL sites subject to Section 104(c)(5)(A)
of CtRCLA requires States to enter into a CA prior to expending
funds at a site if States wish to receive credit for remedial
action expenditures.
With the enactment of SARA, excess credit from one site nif
now be applied to the State's required cost-share at any other
NPL site in the State. Generally, excess credit earned at one
site may be used to off set the State's required cost share at
another site when:
0 The cost estimates in the Record of Decision (ROD) and/or
final bid price for the remedy indicate at least 50
percent of the credit will remain as excess credit at
the completion of the remedy; or
0 A consent decree has been entered in court to clean up
the site completely or to fund the entire remedial
action; or
" A no action alternative is selected.
CERCLA, as amended, also stipulates that a State is not
entitled to reimbursement of a credit. The Agency has decided
that it will not reimburse credits to any State.
The Financial Management Division (FMD) will track State/site
credits in FMS, and Regional Financial Management Officers are
responsible for recording, debiting and transferring credits to
ensure that all credits (verified and unverified) plus State cost
share contributions equal 10 or 50 percent as required.
-12-
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9375.1-09
III. OTHER STATE ASSURANCE REQUIREMENTS
A. Operation and Maintenance
1. Current Requirements/Guidance
In accordance with section 104(c)(3) a State must assure EPA
prior to remedial action that It will assume responsibility for
all future operation and maintenance (O&M) for the expected
life of each remedial action taken at a site. Under current
policy EPA may share in the costs for that phase of remedial
action that ensures a remedy is operational and functional for a
period not to exceed one year. Costs will be shared on the same
percentage basis as applied to the remedial action. This policy
will remain in effect for remedies that do not address ground and
surface water restoration.
The State will generally assume the lead for this phase of
remedial action. For Federal-lead sites, EPA may continue as
lead for a short period of time to enable the State to affect an
efficient transfer of responsibilities. The State must assume
full responsibility after EPA assistance ends.
2. Ground and Surface Hater Restoration
Section 104(1) of SARA adds paragraph (6) to CERCLA Section
104{c) to address treatment to restore contaminated ground or
surface water to levels that assure protection of human health
and the environment. SARA provides that the operation of such
treatment or measures, for a period up to ten years after the
construction or installation and commencement of operation,
or until a protective level as defined in the ROD is obtained,
shall be considered remedial action. Activities required to
maintain the effectiveness of such treatment or measures following
this period, shall be considered OSM. The one-year period
discussed in the previous section to ensure that the remedy is
operational and functional is not applicable to these situations.
States are encouraged to continue or to assume the lead through
a cooperative agreement for that portion of remedial action required
to restore surface or ground water to adequate levels to ensure pro-
tection of hnaan health and the environment. If a State agrees
to undertake the lead, the full Federal share of the cost of
restoration for up to ten years may be obligated in a cooperative
agreement. For Federal-lead response, EPA may continue, in some
instances, as lead for a portion of the restoration to enable a
State to effect an efficient assumption of the restoration activities
The following language or Its equivalent may be Included in
SSCs to address the restoration of ground or surface water and
this 10-year cost-sharing requirement:
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9375.1-09
Pursuant to CEKCLA section 104(c)(6), EPA is authorized to
cost share in the restoration of ground or surface water
for a period of up to ten years or until a sufficient level
of protectlveness as defined in the ROD is achieved. The
remedial design must include a plan for restoring the ground
or surface water to this level of protectiveness. This
plan shall include at a minimum: a schedule of restoration
activities and an estimate of the duration of such activities;
staffing requirements; equipment and materials requirements;
annual restoration costs; and designation of the agency
responsible for the restoration activities. This agreement
will be amended to'provide EPA's cost share for restoration
activity to the State through a cooperative agreement if the
State agrees to undertake the lead for this portion of the
remedial action.
The ten-year clock for this period will begin when the last
operable unit ROD addressing ground or surface water restoration
for the site is implemented. The State will be required to cost
share during this period of remedial action at the same percentage
applied to the rest of the remedial action. At the conclusion
of EPA's participation, the State must assume full responsibility
for any further treatment and any O&M.
B. Off-Site Disposal Assurance
The off-site disposal assurance language under CERCLA remains
unchanged. However, section 121(d)(3) of CERCLA, as amended by
SARA, defines the requirements that facilities must meet in order
to accept CERCLA wastes. The Agency's off-site policy is still in
effect although the Office of Waste Programs Enforcement (OWPE)
is currently revising that policy for incorporation in the NCP.
When the State provides its assurance on the availability of an
off-site facility, the facility must be acceptable to EPA. In
some instances, wastes may be sent to facilities regulated under
and in compliance with other Federal Statutes (I.e., Toxic Substances
Control Act). Acceptability will be determined by EPA's criteria
for treatment, storage or disposal of hazardous substances from
Superfund response sites and compliance with the requirements of
Subtitle C of RCRA. The facility must have had a recent compliance
inspection prior to receipt of the wastes and must have sufficient
capacity to handle the wastes. SARA provides explicitly that,
where the use of off-site land disposal facilities is contemplated,
units receiving CERCLA wastes must have no releases; other units
with releases (including solid waste management units) must be
under a corrective action program approved by EPA. Treatment
and storage facilities will not automatically be deemed ineligible
based on releases from other units. Instead, EPA must determine
that the release presents no significant threat to human health
or the environment. Releases do not include releases permitted
under Federal or State laws. This assurance is only required
-14-
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9375.1-09
for remedial actions including off-site treatment, storage or
disposal of hazardous substances as necessary part of the remedy.
However, wastes from removal actions may only be sent to facilities
meeting these same criteria.
C. Access and Acquisition of Property
EPA's policy has been that States must obtain access to
sites for both State- and Federal-lead response activities.
Section 104(e)(3) of CERCLA authorizes EPA and its represen-
tative, including contractors for Fund-financed response
activities, to enter any vessel, facility, establishment, or
other property where a hazardous substance may be or has been
generated, stored, treated, disposed of, transported from, or
released or where release may be threatened, or where entry is
needed to determine the need for or to undertake a response.
Stat.es acting under a CA or a SSC may also use this authority.
In the absence of such agreements, States are expected to use
theiir own authorities to gain access.
The need to enter private property for response purposes
sometimes raises the: issue of acquiring an interest in the
property. Under Section 104(j) of CERCLA, as amended, States are
required to assure EPA that they will accept transfer of the
acquired interest following the completion of the remedial action.
The Assistant Administrator for the Office of Solid Waste and
Emergency Response with the the concurrence of the General Counsel
will determine when the purchase of a property interest is necessary,
If EPA determines that an interest in such property is
required, it is EPA's policy that States acquire the interest
upfront before the fund-financed response action can proceed.
States must enter into a CA to receive Federal funds to purchase
the real property even on a Federal-lead action. If acquisition
is approved by EPA, States must comply with applicable Federal
regulations for property acquisition under assistance agreements
(40 CFR Part 4 and 40 CFR Part 33).
The Federal Emergency Management Administration's procedures
for acquiring real property as part of a relocation remain 1n
effect. As stated above, a State must agree to take title to
such 'property before relocation can begin.
D. Twenty-Year Waste Capacity
By October 17, 1989, States must provide EPA with an assurance
that they have capacity for disposal or treatment of all hazardous
wastes expected to be generated within the States in the next 20
years. EPA must determine if these State assurances are adequate.
States may enter into regional compacts to assure future capacity.
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9375.1-09
A Capacity Work Group will address the policy issues which
must be resolved prior to providing Regions and States with
detailed guidance on what constitutes an adequate assurance.
Regions and States will be Involved In developing guidance on
the capacity assurance. Further guidance will be Issued as
policy decisions on the Implementation of this assurance are
made.
IV. COOPERATIVE AGREEMENT REQUIREMENTS
A. Statutory 90-Day Review of Cooperative Agreement Applications
Section 104(d)(l)(A) of CERCLA, as amended by SARA, requires
the Agency to make a determination on an application for a CA
within 90 days of receipt. The 90-day clock will begin when the
Regional Assistance Office receives the final CA application
from the State. Regions and States will need to work together
to ensure that this statutory timeframe 1s met and that the final
application is submitted directly to the Regional Assistance Of/Ice
rather than Superfund program managers. This 90-day requirement
can work both for or against EPA and the State. While EPA will:
make a decision on an application in 90-days, EPA will of coursi
have the option of disapproving an application if it Is Incom-
plete or inadequate. Therefore, Regions and States should work
together prior to formal submission of the CA application to
ensure that the application is complete.
Regions should initiate pre-applIcation assistance to States
at least two quarters prior to the target quarter for funding.
Regions should request from the State a pre-applicatlon outline
of activities to be covered by the assistance agreement. States
should submit final applications to EPA at least one quarter
before funds are scheduled to be awarded in order to satisfy SCAP
and Strategic Planning and Management Systems (SPMS) targets and
the 90-day review at the same time.
Amendments to CAs will not usually take 90 days to review.
In cases where the amendment adds a new activity/site to a multl-
activ1ty/mu1t1-s1te CA or will fund a new phase of response,
the full ftO-days nay be required to make a decision on the appli-
cation.
Under the 90-day review limitation, Regions should conduct
a thorough review within 30 days of receipt of the CA application
in order to notify States of clarification needs or additional
data requirements. The States should take no longer than 30
days to provide the required information so that the review of
the revised application can be completed in the final 30 days of
the 90-day review period. If the State does not respond to the
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9375.1-09
Region's request for additional Information, the Region may act
on the application with the data available prior to the end of
the 90-day review.
The Office of Emergency and Remedial Response (OERR) recognizes
that a precedent for stopping the clock or extending the 90-day
review may exist 1n other EPA regulations which address
similar statutory requirements. However, such regulations do
not currently exist for the Superfund program. The statutory
90-day review requirement means that EPA must either approve or
disapprove the final applications within the 90-day time period.
B. Cooperative Agreements with Indian Tribes
Section 126 of SARA mandates that the governing body of an
Indian tribe be treated substantially the same as a State
for implementing sections 103(a), 104(c)(2), 104{e}. 104(1) and
105 of CERCLA. SARA also authorizes EPA to enter Into CAs with
Federally recognized Indian tribes. However, State assurances
do not apply to CAs or contracts with Indian tribes. Section
101(36) of CERCLA, as amended, defines the term Indian tribe a:
meaning any Indian tribe, land, nation, or other organized groi
or community, including any Alaska Native village but not
including any Alaska native village corporation, which Is recognized
as eligible for the special programs and services provided by
the United States to Indians because of their status as Indians.
Only Federally recognized tribes may enter into CAs to receive
assistance from the fund and to take the lead for remedial response
at an NPL site on Indian lands.
Generally, remedial response on Indian lands will be Federal-
lead with management assistance CAs available for Federally
recognized Indian tribes. Removals will also be undertaken as
Federal-lead actions on Indian lands. Guidance on CAs with
Indian tribes Is under development.
C. Eligible Funding Activities Under SARA
EPA's current policies and procedures for funding site-
specific State-lead activities will continue without modifi-
cation. Since SARA endorsed EPA's multi-site/multl-actlvlty
CA concept, EPA will continue to enter into these with States as
we I I.
The Conference Report for the SARA amendments to section
104(d)(l) includes a broad range of activities that can be funded
to support State participation in the Superfund program. Therefore,
EPA intends to implement core program funding for States as a
means of extending our existing policy of covering States' adminis-
-17-
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9375.1-09
tratlve expenses that are a necessary part of State partici-
pation in the Implementation of CERCLA activities.
The core program funding mechanism will, subject to the
availability of appropriations, provide States with a continuous
funding source to develop and maintain program staff to conduct
and support site-specific CERCLA activities. The State Issues
Reauthorizatlon Workgroup has worked with EPA to develop a
11st of core program functions eligible for Federal funding and
is developing interim guidance for such funding. Some examples
of functions eligible for this funding are program management
and supervision, interagency coordination, general legal assistance,
contract and fiscal management, and clerical support for the
preceding functions.
The core program funding guidance will be issued to Regions
and States for comment in early summer. Core program funding
should be available to all States by the beginning of FY 88.
V. PRE-REMEDIAL REQUIREMENTS
A. Cooperative Agreements for Pre-Rereedial Activities
Pre-remedial activities can be conducted either by EPA or
by the State. EPA and the State negotiate annually to determine
who will be responsible for each site. The State pre-remedlal
program is intended to supplement EPA's program, not duplicate
or replace it. Federal assistance for State-lead pre-remedial
activities is provided through CAs in accordance with existing
policy and guidance. Site discovery is not an eligible activity
for pre-remedial funding.
B. Citizen Petitions for Preliminary Assessments (PA) •
Section 105(d) of SARA requires EPA to perform a pre-
liminary assessment of any release when petitioned by any person
who may be affected by the release. The revised NCP will establish
guidelines for addressing these petitions. States may undertake
the lead for these PAs and will be required to meet statutory
and regulatory requirements for performing PAs initiated by
citizen petitions.
The PA must be completed within one year of the receipt of
the petition or EPA must notify the petitioner of its determination
that a PA is not appropriate. The factors to consider 1n making
this determination are whether the site is eligible for CERCLA
response and has the petitioner provided sufficient information
to suspect there may be a release. Further guidance on citizen
petitions for PAs will be developed later and will Include what
the State's role will be in responding to these petitions.
-18-
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9375.1-09
VI. SARA STATE INVOLVEMENT REQUIREMENTS
A. Status- of Regulations
Section 121(f)(l) of SARA requires EPA to promulgate
regulations to ensure "meaningful and substantial" involvement
of States in pre-remedial and remedial response. Section 121(f)(2)
and (3) mandate specific State involvement in enforcement response
and clean ups by Federal facilities. The State involvement
regulations will be promulgated in Subpart F of the revised NCR.
The proposed rule is scheduled for publication in July of 1987
and the final for April 1988, in order to meet the statutory
tlmeframe of 18 months from the date of enactment of SARA for
revisions to the NCP. The revised NCR is now undergoing Agency
review.
Subpart F wi11 introduce a consultation process for Regions
and the States intended to establish a working partnership. The
consultation process will be driven by an EPA/State Superfund
Memorandum of Agreement (SMOA). EPA will encourage States to
enter into a SMOA,;but the SMOA is not mandatory. Subpart F
will establish stringent requirements for State involvement in
the1, absence of a SMOA.
The primary goals of the SMOA are (1) to provide maximum
flexibility to EPA and States in planning and implementing
response actions; (2) to ensure equity for States and EPA as
partners in response actions; and (3) to reduce or eliminate
.misunderstandings by clarifying EPA and State expectations. The
SMOA will address the State's role and EPA's role in both Federal-
and State-lead remedial and enforcement response. It may also
include a discussion of State/Federal Interaction on removals, in
particular State assumption of post-removal site control measures
when necessary.
EPA/State Enforcement Agreements will be incorporated into
the SMOA where they exist. In the absence of a SMOA, States and
Regions should develop EPA/State Enforcement Agreements for
State-lead enforcement sites. CAs will continue to be the Instrument
for delinating EPA and State responsibilities for all site-specific
response actions where the State has the lead for a Fund-financed
remedial or enforcement action. SSCs will be used to obtain
State assurances for Federal-lead Fund-financed remedial action.
Until now, EPA has relied on either a letter or Memorandum of
Understanding to document State concurrence on Federal-lead
remedial planning activities. Neither will be required if there
is a SMOA in place. The SMOA will serve the purpose of ensuring
that the State is an informed and willing partner in Federal-lead
remedial planning.
-19-
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9375.1-09
SMOA Guidance Including a model agreement will be distributed
to the Regions and States for comment by early summer.
Subpart F also proposes a larger role for States during the
remedy selection process when the State has the lead for remedial
response. Based on the results of a capability analysis and site-
specific facts, some States will be afforded an opportunity to
prepare the ROD and select, with EPA concurrence, the remedy. This
new initiative Is being addressed by the NCP workgroup now.
Additional information and guidance is forthcoming.
•
B. Interim Guidance for State Involvement
Until the NCP is final, Regions should formally document
(by letter, memorandum, written notice, call documentation,
etc.) their efforts to assure State involvement at the following
points during response:
Consultation on information used to rank sites in a
State for possible NPL listing
Review of Rl/FS wbrkplan and draft FS, including
proposed plan
Consultation on State applicable or relevant and
appropriate requirements (ARARs) which must be
considered during Federal-lead remedial response
actions:
after site characterization data is available,
solicit contaminant and location-specific ARARs
after initial screening of alternatives prior to
comparative analysis conducted during the detailed
analysis, solicit technology or action-specific
ARARs ;
if EPA intends to waive State ARARs, under section
121(d)(4) of CERCLA, notify and solicit State
comments
respond to State comments on waiver when submitting
the selected remedy for concurrence
consult with State during design on ARARs
Provide a copy of the ROD and Responsiveness Summary
to the State
Concurrence on selected remedy
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9375.1-09
Consultation on remedial design
Concurrence on NPL deletion.
VII. CONTRACT REQUIREMENTS
A. Minority Contracting Reporting Requirements
The manual on State Participation In the Superfund Program
and 40 CFR Part 33 addresses Minority Business Enterprises/
Women's Business Enterprises (MBE/UBE); these requirements
still apply. The Agency's policy has always been to foster the
Inclusion of MBE/WBb firms 1n Its contracting efforts.
Section 105(f) of CERCLA as amended by SARA now requires
that EPA report annually to Congress on MBE/UBE contracts
for response activities. States must continue to comply with
existing assistance agreement requirements on MBE/HBE contract
reporting. Regions must collect this data for inclusion in the
Annual Report on Superfund prepared for Congress. The Regional
Superfund MBE/UBE coordinator can provide additional guidance
on MBE/UBE reporting requirements.
B. Conflict of Interest Requirements
The manual on State Participation in the Superfund Program
and 40 CFR Part 33 also address conflict of interest requirements
for State- and Federal-lead actions. These requirements are
still applicable. In addition, the revised NCP will formalize
the Agency's policy on the award of contracts to PRPs and possible
conflicts of interest. In the interim, the following guidance
will be applicable when considering PRPs for remedial response
contracts.
In some instances, construction contractors, who are PRPs
at a site may have conflicts of interest which would prevent
them from serving the best interest of the State and/or the
Federal government as a remedial action contractor. To protect
the Interests of the State and Federal government under such
circumstances, the lead agency (Region or State) will Include
appropriate, language in the bid solicitation requiring potential
contracto^ctto provide information on their status, and that of
their parent companies, affiliates and subcontractors as PRPs at
the site. The potential contractors will be required to certify
that they have disclosed such information or that no such infor-
mation exists, and that any such information discovered after
submission of their bids, proposals or the contract award
will be disclosed immediately.
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9375.1-09
Prior to contract award, the lead agency Mill verify that
the potential contractor and subcontractors do not have conflicts
of Interest which 1n the EPA's opinion might Impair their perfor-
mance. In the event that a member of the low bidder contract
team might have such a conflict, the bid may be declared non-
responsive If the contract team cannot substitute with an acceptable
subcontractor.
C. Contractor Indemnification Requirements
•
Section 119 of SARA amends CERCLA to authorize the Federal
government to idemnlfy response contractors for liability related
to damage from releases arising out of the contractor's negligent
performance when adequate pollution liability Insurance 1s not
available to the contractor. Detailed guidance will be proposed
In the Federal Register In late FY 87 or early FY 88. This
guidance will address what constitutes adequate liability
Insurance and when contractors for State-lead response can be
Indemnified by the Federal government. Interim guidance on
contractor Indemnification is being developed now and will be
available soon. All State requests for indemnification and
questions on Indemnification should be addressed to the Agency
Indemnification Task Force, Office of Waste Programs Enforcement.
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CONTACTS FOR STATE ISSUES INTERIM GUIDANCE
Name/Title
Jan Wine, Chief
State Involvement
Section
Betty Winter
SLCB/HSCD
Provisions
All provisions
All provisions except
as specified below
Phone
1202- or F1S)
382-2443
382-2450
Richard Johnson
GAD
40 CFR 30
40 CFR 33
332-5296
Bob Cluck
FMD
Stan Fredericks
FMD
Financial Management
Requirements for State
Credits
Reimbursement of Cash
Advance Match
382-5160
382-
Bob Mason/Tom Gillis Contractor Indemnifi-
OWPE cation
382-4015/
382-4524
Jim Jowett
SAB/HSED
Lucy Slbold
SAB/HSED
Mike Kilpatnck
OWPE
Paul Nadeau
HSCD
NPL Listing Process
HRS System
Citizen Petitions
Pre-Remedial Activities
Uft-Site Disposal
Contractor Conflict of
Interest
BobbJe Ltiaigt,jr-D1,ebold Superfund Indian Policy
Core Program Funding
SMOA
Twenty-year Waste
Capacity
Gary Pulford
SLCB/HSCD
Malcolm Bliss
OSWER
475-8195
382-2454
475-8259
382-2346
382-7992
382-2443
382-4677
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\NASHING TON. D C 20460
l MO'*'"
JUL 241987
MEMORANDUM
3C. i J WASTE t\c; _
-JE OF
vic i RESP/PO
J. winstorf Porter
Assistant Administrator
Director, Waste Management Division
Regions I, IV, V, VII, and VIII
Director, Air and Waste Management Division
Region II
Director, Hazardous Waste Management Division
Regions III and VI
Director, Toxics and Waste Management Division
Region IX
Director, Hazardous Waste Division '
Region X
There are a large number of Records of Decision (RODs)
to be signed by the Regions in the near term. This interim
guidance memorandum is meant to assist you with making and
documenting these decisions.
Records of Decision in FY'87 are governed by the current
National Contingency Plan (NCP) promulgated November 20, 1985
and the Superfund Amendments and Reauthorization Act of 1986 (SARA)
This memorandum supplements the "Interim Guidance on Superfund
Selection of Remedy" issued December 24, 1986 which was an
early effort to explain how SARA modifies the orocesses and
procedures established in the NCP. Pending revisions to the
NCP and the guidances on "Remedial Investigations (RI),"
"Feasibility Studies (FS)," and "Preparation of Decision
Documents (ROD Guidance)" planned for next fiscal year, Regions
should follow this and the previous guidance memorandum to the
extent practicable.
In brief, the remedy selection process consists of the
collection of data on site and waste characteristics and the
analysis of alternative approaches for remediating identified
problems. The results of the analysis are then assembled to
assist decisionmakers in determining what remedy is most
appropriate for a given site. The remedy selection occurs in
two steps: first, a proposed plan is issued with the RI/FS for
public comment; based upon consideration of the comments and any
new information received, the Agency then makes a final remedy
selection which is explained in a Record of Decision.
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In both the Proposed Plan and Record of Decision it is
important to discuss and compare the alternatives in terms
of specific evaluation criteria. Attachment $1 lists some of
the most important criteria that should be considered in this
analysis. As indicated, many of the criteria are specifically
mandated by SARA; others derive from the current NCP and existing
RI/FS and ROD guidances. Suggested component measures of each
criteria are listed, although different measures may be more
or less appropriate for an individual site.
The evaluation criteria will also be referenced in explaining
the rationale for selecting the chosen alternative in the Record
of Decision. The RODs must also make four statutory findings
about the selected remedy:
1. That the remedy is protective of human health and the
environment;
2. That the remedy attains the legally applicable or
relevant and appropriate requirements of other Federal
and State public health or environmental laws, or
provides the grounds for invoking one of the six waivers
provided for in SARA;
3. That the remedy is cost-effective; and
4. That the remedy utilizes permanent solutions and alternate
treatment technologies or resource recovery technologies
to the maximum extent practicable.
Additionally, the ROD should explain whether or not the remedy
satisfies the statutory preference for remedies which employ
treatment which permanently and significantly reduces the
toxicity, mobility or volume of hazardous substances as their
principal element. To promote consistency in how this documentation
is organized, Attachment 12 provided an outline of the various
components of ROD and their suggested sequence. A more detailed
version of this proposed outline will be presented in the
aforementioned ROD Guidance due out this fall.
It is hoped that this guidance will help you focus on the
considerations which are most significant for the preparation of
RODs this fiscal year. Recognizing - at some projects are near
completion, you will need to determine the extent to which
these considerations can be incorporated into decision documents
not yet signed on a case by case basis. Some key remedy selection
issues are still under discussion and will be resolved through
the process of finalizing proposed revisions to the NCP.
Attachments
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ATTACHMENT 41 9355.0-21
CRITERIA FOR EVALUATING ALTERNATIVES
Listed below are the key criteria which should be considered
in evaluating and comparing alternatives. Those criteria which
relate directly to the factors SARA §121(b)(l)(A - G) mandates
the Agency to assess are marked. A key listing the associated
statutory factors is provided. Records of Decision must address
these statutory factors; this can be accomplished by referencing
or footnoting the factors in summarizing the analysis of alter-
natives against the nine criteria below.
!• Compliance with ARARs
Alternatives should be assessed as to whether they attain
legally applicable or relevant and appropriate requirements
of other Federal and State environmental and public health
laws, including, as appropriate:
0 Contaminant-specific ARARs (e.g., MCLs, NAAQs)8
0 Location-specific ARARs (e.g., restrictions on
actions at historic preservation sites)8
Action-specific ARARs (e.g., RCRA requirements
for incineration and closure)8
SARA provides six waivers for situations where not all
ARARs can be met in §121(d)(4). Use of waivers must be
justified in the ROD.
2. Reduction of Toxicity, Mobility or Volume
The degree to which alternatives employ treatment that
reduces toxicity, mobility, or volume should be assessed.
Factors that might be relevant include:
The treatment processes the remedies employ and
materials they will treat;
The amount of hazardous materials that will be
destroyed or treated;
The degree of expected reduction in toxicity, mobility
or volume;8
The degree to which the treatment is irreversible;
8 The residuals that will remain following treatment,
considering the persistence, toxicity, mobility, and
propensity to bioaccumulate of such hazardous substances
and their constituents.c
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-2- 9355.0-21
3. Sh^rt*-Term Effectiveness
The short-term effectiveness of alternatives should be
assessed considering appropriate factors among the following:
8 Magnitude of reduction of existing risks;
" Short-term risks that might be posed to the community,
workers, or the environment during implementation
of an alternative including potential threats to human
health and the environment associated with excavation,
transportation, and redisposal or containment;D,G
0 Time until full protection is achieved.
I
4. Long-term Effectiveness and Permanence
Alternatives should be assessed for the long-term effectiveness
and permanence they afford along with the degree of certainty
that the remedy will prove successful. Factors which might be
considered are:
0 Magnitude of residual risks in terms of amounts
and concentrations of waste remaining following
implementation of a remedial action, considering
the persistence, toxicity, mobility, and propensity
to bioaccumulate of such hazardous substances and
their constituents«A,B,C,G
0 Type and degree of long-term management required,
including monitoring and operation and maintenance;A,B,G
• Potential for exposure of human and environmental
receptors to remaining waste considering the potential
threat to human health and t'ue environment associated
with excavation, transportation, redisposal, or contain-
ment ;D«G
0 Long-term reliability of the engineering and
institutional controls, including uncertainties
associated with land disposal of untreated wastes
and residuals;A«B'F«G
0 Potential need for replacement of the remedy.F
5. Implementability
The ease or difficulty of implementing the alternatives
can be assessed by considering the following types of
factors:
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-3- 9355.0-21
0 Degree of jifficulty associated with constructing the
tecnnology;
* Expected operational reliability of the technologies;
8 Need to coordinate with and obtain necessary approvals
and permits (e.g., NPDES, Dredge and Fill Permits
for off-site actions) front other offices and agencies;
• Availability of necessary equipment and specialists?
* Available capacity and location of needed treatment,
storage, and disposal services.
* Need to respond to other sites (§104 actions only).
6. Cost
The types of costs that should be assessed include the following:
0 Capital costs;
0 Operation and maintenance costs?E
D Costs of five year reviews, where required;
0 Net present value of captial and O & M costs;E
' Potential future remedial action costs.F
7. Community Acceptance
Clearly, a full assessment of community attitudes toward
the alternatives cannot be made until the formal public
comment period on the proposed plan and RI/FS has been
held. Earlier readings of community acceptance of and
preferences among the alternatives will depend on the
degree and type of community involvement in a project
during the RI/FS process. This assessment should look at:
0 Components of the alternatives that the community
supports;
0 Features of the alternatives about which the community
has reservations;
e Elements of the alternatives which the community strongly
opposes.
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-4- 9355.0-21
8. State Acceptance
States are joint risk managers with EPA in the Superfund
process, often taking the lead for remedial investigations
and feasibility studies, sharing costs of the remedial
actions, and paying for the operation and maintenance of
the remedies. Because of close interaction throughout
remedial projects, it may not be necessary to address
State concerns with proposed alternatives as a specific
evaluation criterion when comparing alternatives. In some
cases, however, it may be appropriate to consider incorporating
such concerns into the evaluation with regard to:
' Components of the alternatives the State supports;
0 Features of the alternatives about which the State
has reservations;
0 Elements of the alternatives under consideration
that the State strongly opposes.
9. Overall Protection of Human Health and the Environment
Following the analysis of remedial options against individual
evaluation criteria, the alternatives should be assessed
from the standpoint of whether they provide adequate protection
of human health and the environment considering the multiple
criteria.
-------
KEY
(Section 121(bX1)(A - G) Factors)
A • the long-term uncertainties associated with land disposal
B - the goals, objectives, and requirements of the Solid Waste Disposal Act,
C * the persistence, toxicity, mobility, and propensity to bioaccumulate of
such hazardous substances and their constituents
D • short- and tang-term potential for adverse health effects from human
exposure
E « long-term maintenance costs
F « the potential for future remedial action costs if the alternative remedial
action in question were to tail
i '
G - the potential threat to human health and the environment associated with
excavation, transportation, and redisposal. or containment
-------
ATTACHMENT '2
SUGGESTED OUTLINE FOR RECORDS OF DECISION
JECLARAT.LON
A. Site Name and Location
3. Statement of Basis and Purpose (attach Index to
Administrative Record)
C. Description of the Selected Remedy
D. Declarations of consistency with CERCLA as amended by
SARA and the NCP {attach letter of State concurrence)
II. DECISION SUMMARY
A. Site Name, Location and Description
B. Site History
C. Enforcement History
D. Community Relations History
* E. Alternatives Evaluation
** F. Selected Remedy (Description and -ationale for selection)
III. Responsiveness Summary
A. Overview
B. Background on Community Involvement
C. Summary of Public Comments and Agency Responses
D. Explanation of Differences Between Proposed Plan
and Selected Remedy (if appropriate)
E. Remaining Concerns
F. Attachment listing community relations activities
conducted at the site prior to and iuring the public
comment period.
* Denotes section where analysis of alternatives against evaluation
criteria will be documented (See Attachment 42).
** Indicates section where statutory findings will be discussed.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
AUG I 9 I9&7
OFFICE OF
SUBJECT: Superfund P«)j act Execution SOL.D WASTE AND EMERGENCY RESPONSE
c"Ct?rS,.Wl11 b? Procured initially for Regions III and V.
The objective is xto provide these Regions, and others soon there-
after, with the ability to choose contractors on a more site-spe-
serv?r« ^nT^1^6 basis' Theref°^, those providing excellent
services can be given more work, and those which are not doing
as well can receive closer to their contract minimum.
With the assistance of the ARCS and REM contractors, as well
narp «f SrPS ¥ !n9inefjs' x want fc° significantly increase the
pace of Superfund remedial work. A key element of this strategy
is the project management approach which is described below.
t^Sn'c? thl? discussion' I h^e provided some general implemen-
tation steps for the Regions and Headquarters to consider.
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- 2 -
Project Management Concept
project manager, this organization would be accountable JS
responsible for conducting the necessary techn"a? studies and
would provide engineering and construction manag^ent services?
a number of maJ°r advantages to this concent
and responsibility, and to minimize the "f inger^ointinS" a
various organizations with respect to the pr^jec? execution
Phases. It will be very clear who has provided a l! the technical
stewardship of federal monies expended.
.
course, overall
co«.™tlon
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- 3 -
Implementing Steps
It will take some time to get this new concept in place
because we have a considerable amount of work which is ongoing
h*10"5 arran9eraents- However, I want to move briikly
this new concept, including, where appropriate, on existino
s. I am providing a number of °
—.._>,£,,_, J.UV.j.uuAny, wnere appropriate, on eyietii
projects. I am providing a number of implementation suggestions
1. For all new RI/FS's, I want the Regions to take a close look
co see it we can assign the most qualified proiect mananpmon*
r%^nani*ya^**N*«C«»._i_L.A_ • t'**J**N*» iu«i iau ClllC? J1 L.
ULLjaiii£ai.ion EOT Cn31. pTOlGCt*
2. Likewise, for ongoing RI/FS work, the Regions should consider
having the existing contractor, if that firm is doing a good
i™hf h-"Ue " Pr°Ject manager for the engineering and/or
EH" t^1^ "^^f^P!!!!!;,^3,1" the .?•«. the cor?s 0/
. pas, e orps of
spIcif!cSbasisld 3lSO ^ C0nsidered for th*s w°^ on a Sit!--
3. I also would like to see the outside project manager provide
more support to us in public interaction sessions? as well as-
in key technical reviews within the Agency.
4. In executing this concept, I want to see much more of a
presumption of crisp timing on the execution of each phase
of the project. For example, I believe RI/FS's should
typically be done in about a 12 - 18 month period. I further
or Rl/FSt?erRnnh?Uld: be V6ry little d°™time between phases
a kev llrl nf ?h 9" en9ineerin9 fc° construction? Thus,
r nf h u
«-? • ! ?6 pr°Ject management organization's respon-
tip nh 1S ° uSeP US Ol? a critical Path with respect to
these phases. My sense is that we coul
u
My sense is that we could save perhaps a year
Within EPA, I want us also to review our interactive proce-
dures with contractors and the Corps to see if we have exces-
tho%n^ I of review, and to see if we can minimize some of
the current matrix management. Our project manager should
be able to speak for EPA on day-to-day guidance of the
contractor s project manager. All such communication should
funnel through EPA's project manager.
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- 4 -
6. I want to give the project management organization a consid-
erable amount of technical discretion regarding how they do
the work. A good example is the use of the contract labs.
I believe the contract lab program is working well, but
if our project management organization believes that
the work can be done more quickly and with equivalent quality
and cost by an alternative method, he should be allowed to
do so. In other words, the project management organization
should be "on the hook" for completing quality work within the
schedule. We should not overly interfere with the mechanics
of how the day-to-day work is executed.
7. Working with our contractors and the Corps, we should continue
to look for places to save time, particularly in the afore-
mentioned downtime-s between project phases. One of the areas
I have been very concerned with, for example, is the lengthy
period it takes to develop and review work plans and other
planning documents. I am also concerned about the duplication
of effort between, say, the work plan, sampling and analysis
plan, quality assurance plan, data quality objectives plan,
etc. I believe we should rethink the utility of all these -,
independent plans. Similarly, we need to start actual work -
in parallel with some of the planning. For example, the
heart of the RI/FS program is the analysis of remedial
alternatives. It would appear that early development and
screening of such alternatives would be very helpful in the
various planning steps as well as with early field activities.
8. Finally, it is important to understand the degrees of freedom
we have where poor contractor performance is evident. If
the work is not satisfactory, we should sit down with project
and/or senior management of the organization involved. It
may be necessary, for example, to seek a change in the
project manager of the project management organization. We
may even need to make a change of project management
organizations at a site if necessary. I do not want to deal
with averages ad far as performance is concerned, but site-
specific work.
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- 5 -
Closing Remarks
I will be providing additional guidance on the above concepts
in the months ahead. In addition, we will be having a number of
face-to-face meetings with the EPA and other principals in this
regard. However, I want to stress that we need to begin moving
rapidly in the above directions based on the preliminary suggestions
I have made above. We will deal with case-by-case issues as they
arise. As soon as practical, we want to place additional account-
ability and responsibility on the project management organizations,
and to develop the partnership I have mentioned. The bottom line
is to move project work much more rapidly and with quality.
I am also hopeful that States and PRPs will pick up on the
project management, or similar, concepts for their work. Your help
in promoting these ideas in order to increase the pace of project
execution will be greatly appreciated.
I would very much appreciate your personal attention to
these matters. I am also available to talk to you directly about
any problems you see with respect to these concepts. I intend to
spend a considerable amount of personal time helping us achieve
the above goals. Thank you very much for your support in this
new Superfund project execution initiative.
cc: Lee M. Thomas
A. James Barnes
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I OT2 3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\P**/ WASHINGTON. D.C. 20460
SEP 2 J 1987
OFFICE Of
ENFORCEMENT AND
COMPLIANCE MONITORING
MEMORANDUM
SUBJECT: Guidance on the Use of Stipulated Penalties in Hazardous
Waste Consent Decrees
FROM: Thomas L. Adams, Jr. \JL__ U VS^^-v XX"
Assistant Administrator"*^ *• W ' ~N*«L~* X.
TO: Regional Administrators, Regions I-X "—'
Regional Counsels, Regions I-X
Waste Management Division Directors, Regions I-X
I have attached the final guidance addressing the use of
stipulated penalties in civil judicial settlements under CERCLA
and RCRA Section 7003. This document reflects comments which were
received from the Office of Waste Programs Enforcement (OWPE), the
Department of Justice (DOJ), and various Regional offices.
This guidance does not apply to administrative orders, such
as RI/FS orders. In addition, to complement this guidance, the
Agency is considering additional guidance to provide positive
incentives for defendants to expedite completion of work under
consent decrees.
I appreciate your assistance in the preparation of this
guidance.
Attachment
cc: J. Winston Porter, Assistant Administrator for Solid Waste
and Emergency Response
Gene A. Lucero, Director, Office of Waste Programs Enforcement
Roger J. Marzulla, Acting Assistant Attorney General, Land
and Natural Resources Division, Department of Justice
David T. Buente, Chief, Environmental Enforcement Section,
U.S. Department of Justice
-------
GUIDANCE ON THE USE OF STIPULATED PENALTIES
IN
HAZARDOUS WASTE CONSENT DECREES
SEP 2 I 1987
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Enforcement and Compliance Monitoring
1987
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TABLE OF CONTENTS
Guidance on the Use of Stipulated Penalties
in Hazardous Waste Consent Decrees
Page
I. INTRODUCTION 1
II. GUIDANCE 2
A. Use of Stipulated Penalties
1. General Rule 2
. 2. When Penalties May Be Excused
or Delayed 4
a. Force Majeure Event 4
b. Dispute Resolution Period 5
c. Period of Correction by
Defendant 6
d. Missed Interim Deadlines 6
e. Grace Period 6
B. Amount of Stipulated Penalties
1. General Rule 7
2. Escalating Penalty 8
3. Sharing Penalties with the State 9
C. Collection of Stipulated Penalties
1. General Rule 9
2. Procedure for Collecting Penalties 10
3. Payment of Penalties 10
D. Use of Other Remedies 11
E. Purpose and Use of this Guidance 12
APPENDIX - Model Stipulated Penalties Provisions
-i-
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I. INTRODUCTION
This document provides guidance on the use of stipulated
penalties in hazardous waste judicial consent decrees. Stipulated
penalties are fixed suns of money that a defendant agrees to pay
for violating the terns of a decree. Such penalties are an
effective enforcement tool for encouraging compliance with a
consent decree.
This guidance applies to consent decrees under the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (CERCLA), 42 U.S.C. § 9601 et se^. , as amended, and
Section 7003 of the Resource Conservation and Recovery Act of
1976 (RCRA), 42 U.S.C. § 6973, supplements existing guidance]/
issued by the United States Environmental Protection Agency (EPA),
and incorporates recent Agency experiences in negotiating and
overseeing consent decrees. The Agency strongly encourages the
use of stipulated penalty provisions in consent decrees. It also
supports the use of contempt penalties, statutory penalties and
injunctive relief as additional sanctions for the violation of
consent decrees.
V See "Drafting Consent Decrees in Hazardous Waste Imminent
"HazaTFcTCases" (Office of Enforcement and Compliance Monitoring
(OECM) Office of Solid Waste and Emergency Response (OSWER),
May 1 1985), "Guidance for Drafting Judicial Consent Decrees
(OECM October 19, 1983), "Division of Penalties with State and
Local'Governments" (OECM, October 30, 1985), "Remittance of Fines
and Civil Penalties" (OECM, April 15, 1985) and the Superfund
Amendments and Reauthorization Act of 1986.
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- 2 -
While the concept of stipulated penalties also has rele-
vance for administrative orders, distinctions between such
orders and consent decrees may necessitate some differences in
precise application. Guidance on use of stipulated penalties
in administrative orders will be provided separately.
II. GUIDANCE
A. Use of Stipulated Penalties
1. General Rule
In the past, it has been OECM policy to include stipulated
penalties in most consent decrees. See "Guidance for Drafting
Judicial Consent Decrees" at 22. Moreover, the Superfund
Amendments and Reauthorization Act of 1986 (SARA) requires that
consent decrees which provide for remedial action^/ contain
stipulated penalties. Section 121(e)(2) of SARA provides that:
...Each consent decree shall also contain stipulated
penalties for violations of the decree in an amount
not to exceed $25,000 per day, which may be enforced
by either the President or the State.. Such stipulated
penalties shall not be construed to impair or affect
the authority of the court to order compliance with
the specific terms of any such decree. (Emphasis added).
However, Section 121 does not explicitly require that every
requirement of a consent decree have a stipulated penalty
attached to it.
2/ Although Section 121 deals with "remedial" actions, it is
~" recommended that stipulated penalties be included in consent
decrees for removals as well.
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- 3 -
Section 122(1) also permits additional penalty sanctions
for violations of the requirements of a consent decree. Sec-
tion 122(1) of SARA provides as follows:
(1) CIVIL PENALTIES - A potentially responsible
party which is a party to an administrative
order or consent decree entered pursuant to an
agreement under this section or section 120
(relating to Federal facilities) or which is
a party to an agreement under section 120
and which fails or refuses to comply with
any term or condition of the order, decree
or other agreement shall be subject to a
civil penalty in accordance with section 109.
Thus, in the context of a CERCLA consent d.ecree with mandated
i
stipulated penalties, both the stipulated penalties contained
in the consent decree and the Section 122(1) penalties may be
assessed for violations of the terms of the decree. However,
in limited circumstances, where the stipulated daily penalty
amounts are sufficiently high to effectively deter noncompliance
with the decree, the Agency nay consider waiving Section 122(1)
penalties. Such penalties nonetheless may be sought for any
violations to which no stipulated penalty attaches.
Stipulated penalties are seldom applicable to noncompli-
ance with every requirement of a decree. Most often they are
applicable to compliance schedules, performance standards, and
reporting requirements. The types of violations for which
stipulated penalties should be required will necessarily depend
on the value the Agency places on the activity to be performed
and the importance of timely performance.
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- 4 -
Even consent decrees which primarily involve a "cash out"
(i.e., where the defendant pays a fixed sum of money to absolve
himself of his remedial obligations) warrant the inclusion
of stipulated penalties. For example, if a defendant agrees to
pay his cash out share in installments, stipulated penalties
should be used to penalize late payments. If a case arises in
which the defendant must1 perform certain tasks in addition to
cashing out (such as providing site access or security), stipu-
lated penalties should be imposed to ensure that the defendant
performs those tasks.
2. When Penalties May Be Excused Or Delayed
Usually stipulated penalties should begin to accrue after
the date on which complete performance of a particular task is
due. Stipulated penalties will not necessarily accrue, or the
accrual of such penalties may be stayed or waived, however,
during designated periods or by the occurrence of certain
events.
a. Force Maieure Event3/
One of the most common reasons for the noncollection of
stipulated penalties is the occurrence of a force majeure
event. A force majeure event is one which is beyond the control
of the defendant and provides the defendant with an affirmative
3/ Model force majeure language is forthcoming as an appendix
"~ hereto.
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- 5 -
defense to a charge of noncompliance. Since penalties do not
accrue during this period, the definition of a force majeure
event should be narrowly drawn and the burden placed on the
defendant to show that a force majeure event has occurred. In
any event, neither increased costs nor financial difficulty
should constitute a force majeure event.
b. Dispute Resolution Period
To avoid creating incentives to dispute consent decree
obligations, stipulated penalties generally should accrue for
any nonperformance occurring during the period of dispute.
However, for limited types of disputes, EPA may agree to waive
the accrual of penalties during the dispute resolution period.
For example, consent decrees often permit the Agency to require
that additional work be performed beyond that specifically
provided for in the work plan. Where the defendants become
aware of substantial "mid-course corrections" after the decree
is signed, it may be appropriate to forego stipulated penalties
during any legitimate dispute related to the additional work
sought by EPA.
Stipulated penalties will not be collected if the defendant
wins the dispute. In addition, in appropriate circumstances
the Agency may use its discretion not to collect stipulated
penalties, in whole or in part, which have accrued during the
dispute resolution period.
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- 6 -
c. Period of Correction by Defendant
A stipulated penalties provision may indicate that penalties
will accrue until the violation is corrected by the defendant.
To minimize uncertainties and foster timely and full compliance,
such a statement should specify that penalties will accrue
i
through the last day of correction, as determined by the Agency,
rather than cease to accrue on the day the defendant begins to
correct the violation.
d. Missed Interim Deadline's
Some decrees provide that penalties for interim deadline
i
violations will not be sought if the defendant 'meets the final
completion date. Since in many instances the final deadline is
the most important, the penalties for violations of interim
milestones may be waived in some cases. It should be clear to
the defendant, however, that if the final deadline is missed,
the penalties for interim deadline violations will be sought in
addition to those which would accrue after the final deadline.
I
The "Guidance for Drafting Judicial Consent Decrees" notes that
interim deadline penalties may be collected up front and placed
into an escrow account, to be returned to the defendant in the
event the final compliance deadline is met. Id. at 24.
e. Grace Period
Some prior decrees provided for a fixed period immediately
following notification of a violation in which the defendant
was given the opportunity to explain his noncompliance and/or
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- 7 -
correct it and during which stipulated penalties would not
accrue. The length of such grace periods has ranged from 3 to
30 days. However, by requiring that every consent decree
contain stipulated penalties, Congress has endorsed a strong
preference for strict compliance with the terms of a decree.
While the Agency does not endorse the use of grace periods, if
a violation is expeditiously resolved the Agency may use its
discretion not to seek stipulated penalties.
B. Amount of Stipulated Penalties
1. General Rule
Since stipulated penalties are intended to ensure compliance,
they should be sufficient to provide economic incentives to the
defendant to comply with the terms of the consent decree in a
timely fashion. The penalty should not be set so low that the
defendant would prefer to pay the penalty rather than perform
the required activity.*/ Therefore, stipulated penalties should
generally be set at a level designed to exceed the amount of
the estimated savings due to delay. In setting the amount, the
Agency should also take into consideration the gravity of the
violation and the degree of harm or danger to the public or
environment which might result from the violation.
4/ Actual performance is required regardless of the payment
~ of penalties. The Agency reserves the right to seek injunc-
tive relief, modify the decree, or seek other remedies in such
instances.
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- 8 -
Each stipulated penalties provision should state a fixed
amount per day to be imposed. This "sum certain" puts the
defendant on notice of the potential extent of his obligation
before a violation occurs.£/ The "undetermined amount" approach
*
(i.e., "defendant shall pay u£ to $5000/day") should not be used
since it makes the amount of the penalty subject to further
resolution. The "undetermined amount" may destroy the economy
of using stipulated penalties since the parties must then
resolve the ultimate amount.
2. Escalating Penalty
Consent decrees should provide that the per diem amount of
the penalty will increase with incremental increases in the
period of noncompliance. For example, a fixed penalty of
$5,000 per day might increase to $10,000 per day after the 15th
day of noncompliance, and $15,000 per day after the 30th day.
Escalating penalties will give the defendant added incentive to
come into compliance, and it is recommended that they be used
as a general rule.
£/ To the extent that EPA reserves its rights to seek penal-
ties under SARA S 109 or civil contempt orders, however,
the "sum certain" argument is really only an indication of
the minimum amount for which a consent decree violator may
be liable.
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- 9 -
3. Sharing Penalties with the State6/
Generally, civil penalties may be shared with a State if
the State has actively participated in the litigation, actively
sought such penalties, and State law provides independent
authority for the State to seek civil penalties.^/ In addition,
[t]he penalties should be divided in a proposed
consent decree based on the level of partici-
pation and the penalty assessment authority of
the state or locality....[T]he division should
reflect a fair apportionment based on the tech-
nical and legal contributions of the partici-
pants, within the limits of each participant's
statutory entitlement to penalties.
"Division of Penalties with State and Local Governments" at 3.
Any agreement to share penalties with a State must be described
in the consent decree. "Division of Penalties with State and
Local Governments" at 2.
C. Collection of Stipulated Penalties
1. General Rule
Since Agency policy encourages aggressive post-settlement
enforcement, it is essential to the integrity of the enforce-
ment program that stipulated penalties be collected. Every
£/ Note that Section 121(e)(2) of SARA gives States the author-
~~ ity to enforce the stipulated penalties section of consent
decrees.
7_l Penalty division'is a matter for discussion only between
the governmental parties, and it is inappropriate for the
defendant to participate in such discussions. "Division of
Penalties with State and Local Governments" (OECM, October 30,
1985) at 3.
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- 10 -
effort shall be made to collect stipulated penalties both to
deter future noncompliance by defendants and to maintain the
Agency's enforcement credibility. The Agency thus will not
hesitate to initiate judicial actions to enforce the stipulated
penalties provision of consent decrees.
2. Procedure for Collecting Penalties
Forfeiture is the best method of collecting penalties and
should be provided for in the decree. Under this procedure,
upon notice of a violation^/ the defendant will have a stated
number of days to pay the penalty ,or to move 'the issue into
i
dispute resolution.
Consent decrees should not contain a limitations period
for demanding stipulated penalties which results in the waiver
of. penalties that are not demanded within a specified period of
time.
3. Payment of Penalties
The stipulated penalties section should indicate to whom
monies are payable. This is particularly important for actions
brought under CERCLA, since the "Superfund" is partially replen-
ished by monies paid under that statute. Although monies
collected pursuant to RCRA generally are paid to the "Treasurer
of the United States," stipulated penalties collected pursuant
8/ Penalties should begin to accrue on the day on which the vio-
~" lation actually occurs and not when the Agency later discovers
it or gives notice to the defendant.
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- 11 -
to CERCLA violations are to be made payable to the "Hazardous
Substances Superfund."£/ All penalties should be paid by certified
check, contain the complete address of the defendant, include
the site identification number if there is one, and reference
the case name and civil action number.
D. Use of Other Remedies
Collection of stipulated penalties is not the sole remedy
for violations of a decree. There may be times when the Agency
will seek additional remedies, such as the court's equitable
contempt powers or the collection of additional penalties under
SARA or other applicable authorities. See, e.g., SARA § 109.
Thus, to preserve the Agency's rights, each section on stipulated
penalties should state that these penalties are "in addition to,
and not in lieu of" the Agency's right to other sanctions for
violations of the decree.10/
9/ This is supported by the guidance memorandum on "Remittance
" of Fines and Civil Penalties" (OECM, April 15, 1985) which
indicates that "all Superfund billings" should go into a lock-
box bank specifically designated for Superfund monies. In
addition, since Section 107(c)(3) of CERCLA directs that puni-
tive damages go into the Superfund, our view is that CERCLA
stipulated penalties should be deposited there as well.
The address for the CERCLA lockbox is:
EPA - Superfund
P.O. Box 371003M
Pittsburgh, PA 15251
!0/ Subject, of course, to any waiver of Section 122(1) penal-
ties (see discussion at p. 3).
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- 12 -
E. Purpose and Use of This Guidance
This guidance and any internal procedures adopted for its
implementation are intended solely as guidance for employees
of the United States Environmental Protection Agency. They
do not constitute rulemaking by the Agency and may not be
relied upon to create a right or a benefit, substantive or
procedural, enforceable at law or in equity, by any person.
The Agency may take action at variance with this guidance or
its internal implementing procedures.
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APPENDIX
MODEL STIPULATED PENALTIES PROVISIONS11/
. STIPULATED PENALTIES
1. Defendant shall pay stipulated penalties in the amounts
set forth in paragraph 9 to the United States [and/or the State
of ] for failure to comply with [sections of] this
CoriFent Decree, unless excused under paragraph ("Force
Maieure"). Compliance by Defendant shall include completion of
an activity under this decree or a plan approved under this
decree or any matter under this decree in an acceptable manner
and within the specified time schedules in and approved under
this Decree. [If 'Defendant fails to meet [specified] interim
deadlines, but meets the final completion date for the work to
be performed herein, the penalties for missed interim deadlines
are excused]. Any modifications of the time for performance
pursuant to section ("Modifications") shall be in writing.
2. All penalties begin to accrue on the day that complete
performance is due or a violation occurs, and continue to
accrue through the final day of correction of the noncompliance.
Nothing herein shall prevent the simultaneous accrual of sep-
arate penalties for separate violations of this Decree.
3. Following Plaintiff's determination that Defendant has
failed to comply with the requirements of this Decree, Plain-
tiff shall give Defendant written notification of the same and
describe the noncompliance. Said notice shall also indicate
the amount of penalties due.
4 All penalties owed to the United States [or State]
under this section shall be payable within 30 days of receipt
of the notification of noncompliance, unless defendant invokes
the dispute resolution procedures under section . Penalties
shall accrue from the date of violation regardless of whether
EPA [or the State] has notified Defendant of a violation.
Interest shall begin to accrue on the unpaid balance at the end
of the 30-day period. Such penalties s.hall be paid by certified
check to ["Treasurer of the United States" for RCRA penalties, or
"Treasurer of the State of X", or to the "Hazardous Substances
Superfund" for CERCLA penalties] and shall contain Defendant s
complete and correct address, the site name, [the site spill
identifier number (SSID)], and the civil action number. All
11 / Brac.keted provisions are optional,
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A-2
checks shall be nailed to [the appropriate Federal lockbox bank
or State postal address].
5. Neither the filing of a petition to resolve a dispute
nor the payment of penalties shall alter in any way Defendant s
obligation to complete the performance required hereunder.
6. Defendant may dispute Plaintiff's right to the stated
amount of penalties by invoking the dispute resolution procedures
under section herein. [Penalties shall accrue but need not
be paid during~~the dispute resolution period. If the District
Court becomes involved in the resolution of the dispute, the
period of dispute shall end upon the rendering of a decision by
the District Court regardless of whether any party appeals such
decision]. If Defendant does not prevail upon resolution,
Plaintiff has the right to collect all penalties which accrued
prior to and during the period of dispute. [In the event of an
appeal, such penalties shall be placed into an escrow account
until a decision has been rendered by the final court of appeal].
If Defendant prevails upon resolution, no penalties shall be
payable.
7. No penalties shall accrue for violations of this
Decree caused by events beyond the control of Defendant as
identified in Section herein ("Force Majeure)"]! 2/. Defen-
dant has the burden of~proving force majeure or compliance with
this Decree.
8. If Defendant fails to pay stipulated penalties.
Plaintiff may institute proceedings to collect the penalties.
However, nothing in this section shall be construed as Prohib-
iting altering? or in any way limiting the ability of Plaintiff
to seek any other remedies or sanctions available by virtue of
Defendant's violation of this Decree or of the statutes and
regulations upon which it is based.
9. The following stipulated penalties shall be payable
per violation per day to the United States [and/or State] for
any noncompliance identified in subparagraph 1 above_^/:
12/ with the exception of stipulated penalties clauses in
- consent decrees providing solely for cash payments, most
decrees will include force majeure clauses.
137 Please note that the penalty amounts set out above are only
~~ examples, and the amounts may vary with each individual
case.
-------
A-3
[ Amount/Day Period of Noncompliance
$ 5,000 1st thru 14th day
$10,000 15th thru 30th day
$15,000 31st day and beyond ]
10. No payments made under this section shall be tax deduc-
tible.
11. This section shall remain in full force and effect for
the term of this Decree.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
SEP22IS67
OFFICE OF
ENFORREMFNT AND
COMPLIANCt MONITORING
MEMORANDUM
SUBJECT: Guidance on Federal Superfund Liens
FROM: Thomas L. Adams, Jr.
Assistant Administrator
TO: Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
Directors, Waste Management Division,
Regions I-X
" The purpose of this memorandum is to establish guidance on
the use of federal liens to enhance Superfund cost recovery.
Section 107 (£) of the Superfund A™endraent!na7f,R^u^[latwSch
Act of 1986 ("SARA"), adds a new Section 107(1) to CERCLA, which
provides for the establishment of a federal lien in favor of the
United States upon property which is the subject of a removal or
remedial action.
This guidance provides: (1) analysis of statutory issues
regarding the nature and scope of the lien, (2) policy on filing
a federal lien to support a cost recovery action, and (3) proce-
dures for filing a no?ice of lien and taking an in rg action to
recover the costs of a lien. Attached to the guidance is an
example of a .notice of a Superfund lien.
I. STATUTORY BACKGROUND AND ISSUES
A. Property Covered by Lien
Section 107(1) of CERCLA provides that all costs and damages
-ove^act?on« %£t£^X SSST J'i^^
^rKiar^iuS^ara sj ar«c^0 K-BSLS^
a removal or remedial actiSnT The lien applies to all Property
owned by the PRP upon which response action has been taken, not
just the portion of the property directly affected by cleanup
activities. The House Judiciary Committee Report on the lien
-------
- 2 -
provision in H.R. 2817 (p. 18), which was enacted as part of
SARA, states that "the lien should apply to the title to the
entire property on which the response action was taken." At the
same time, the Report notes that "it is not intended to extend
the lien to the title of other property held by the responsible
party." Id.
The lien provision is designed to facilitate the United States'
recovery of response costs and prevent windfalls. "A statutory
lien would allow the Federal Government to recover the enhanced
value of the property and thus prevent the owner from realizing a
windfall from fund cleanup and restoration activities." 131 Cong.
Rec. S11580 (Statement of Sen. Stafford) (September 17, 1985).
See also House Energy and Commerce Report on H.R. 2817, p. 140,
indicating that one of Congress1 primary purposes in enacting
the lien provision was to prevent unjust enrichment.
B. Duration and Effect of Lien
i
The federal lien arises "at the later of the following:
(A) the time costs are first incurred by the United States with
respect to a response action under [SARA, or] (B) the time that
the person is provided (by certified or registered mail) written
notice of potential liability." (Emphasis.added) (§107(1)(2)).
EPA may send out two different types of notice letters to PRPs.
The first, a general notice letter, will be sent early in the
process notifying the recipient that he or she has been identified
as a party who may be responsible for cleanup of the site or for
the costs of cleanup. In addition, the Agency may send a sub-
sequent "special" notice which will invoke and commence the
settlement procedures in Section 122 of SARA. The first of those
letters will satisfy the notice of potential liability required
for the federal lien to arise, assuming that it does give the PRP
notice of potential liability for cleanup of costs, and is for-
warded by certified or registered mail.
It is EPA's position that the lien provision applies to costs
incurred prior to and after passage of SARA. The lien also applies
to all future costs incurred at the site. The lien continues
"until the liability for the costs (or a judgment against the
person arising out of such liability) is satisfied or becomes
unenforceable through operation of the statute of limitations
provided in section 113." (S107(l)(2))
C. Priority of Federal Lien In Relation to Other Property
Liens
The federal lien is "subject to the rights of any purchaser,
holder of a security interest, or judgment lien creditor whose
interest is perfected under applicable State law before notice of
-------
- 3 -
the federal lien has been filed [by EPA]." (§107(1)(3)) Thus, the
unfiled federal lien is subordinate to rights that are perfected
under applicable State law before EPA files notice of its federal
Superfund lien. After EPA files notice of the federal lien, the
United States establishes its priority ahead of known and potential
purchasers, holders of security interests, and judgment lien credi-
tors whose interests have not been perfected.
During deliberation on the Superfund amendments. Congress
considered a provision in H.R. 2005 [S. 51] which provided for
constructive notice of an EPA lien. Under that provision, if EPA
failed to file its notice of lien in a timely fashion, the EPA
lien would nonetheless have had priority over a third party lien
which was filed prior in time if the third party had or reasonably
should have had actual knowledge that EPA had incurred costs
which would have given rise to a lien. See Environment and Public
Works Report on S. 51, p. 45. Thus, since this provision was
ultimately deleted from the Act, EPA must file its lien in order
to achieve priority over any other secured parties, and cannot rely
on constructive notice.
D. State Superfund Liens
Most States have passed "Superfund" statutes similar to the
federal law. However, a State Superfund lien only applies to
response work paid for by a State. Some of the State statutes,
such as those in Massachusetts, New Hampshire, New Jersey, Arkansas
and Tennessee, contain "superlien" provisions which provide that
any expenditures made pursuant to the statute constitute a first
priority lien upon the real property of a hazardous waste dis-
charger. Several other States provide that expenditures from the
hazardous waste fund will constitute a lien in favor of the State,
although not a first-priority lien.
II. POLICY ON FILING FEDERAL LIENS IN COST-RECOVERY ACTIONS
EPA has the authority to file notice of a lien on any real
property where Superfund expenditures have been made. Regional
offices should carefully evaluate the value of filing notice of a
lien whenever the Agency has identified a landowner as a potenti-
ally liable party under Section 107. Filing of notice of the
federal lien will be particularly beneficial to the government s
efforts to recover costs in a subsequent Section 107 action in the
following situations:
(1) the property is the chief or the substantial
asset of the PRP;
(2) the property has substantial monetary value;
-------
- 4 -
(3) there is a likelihood that the defendant owner
nay file for bankruptcy. See Revised Hazardous
52te Bankruptcy Guidance .TJTf ice of Enforcement
and Compliance Monitoring, May 23, 198b;
(4) the value of the property will increase signi-
ficantly as a result of the removal or remedial
work; or
(5) the PRP plans to sell the property.
32 JSLK?
defense pursuant to Section 107(b)(J).
Where existing perfected non-Superfund liens on the Property
have taken place.
of the liability of the landowner for the response coBte.J./
III. PROCEDURES FOR FILING LIENS
I/ Courts have rejected eUl. ^at oers are entltlednotUe
f • |
n t a u t ^-^ifj.^ S?K3'..
-------
- 5 -
in conducting a PRP search. The government's priority will relate
back to the date that the notice of the lien was filed. See
Uniform Commercial Code, §9-312(5)(a). Unlike some State Superfund
lien provisions, Section 107 does not establish a deadline by which
notice must be filed.
A. Preparing the Notice
Regional enforcement personnel should refer to State
requirements for filing notice of the lien. We encourage the
Regions to work with State Attorney General Offices to assure
that the Regions accurately interpret State law, and to consult
with OECM and DOJ in determining whether to file notice of the
lien.
Notice should generally include: (1) the name of the property
owner, (2) a precise legal description of the property on which the
lien will arise, (3) an explanation by the Regional official of the
basis for the lien, (4) the address of the Regional Administrator
or other Regional official delegated authority to sign notices of
liens, and (5) a provision that the lien shall remain until all
liability is satisfied. The notice should cite CERCLA Section
107(1) and be notarized with the Agency seal.
Notice may also include such information as: (1) the amount
of fund expenditures upon which the lien is claimed and (2) a
description of labor performed and materials supplied, including
dates. However, since the statute does not require specification
of costs, the notice should clarify that, where response work is
ongoing, the amount of the lien will increase as the costs incurred
increase. The property description to be included in the notice of
the lien should be the legal description (i.e.. metes and bounds,
or lot, block and subdivision) rather than a general post office or
street address. We have attached an example of a notice of a
federal lien.
Under the recent SARA delegation, the Regional Administrator
has been delegated authority to sign the notice of filed lien.
The Regional Administrator may redelegate this authority at his/her
discretion.
B. Where to File
To establish its priority among other secured parties and
creditors, EPA must file notice of the lien "in the appropriate
office within the State (or county or other governmental sub-
division), as designated by State law, in which the real property
subject to the lien is located." (§107(1)(3))
-------
- 6 -
Where the State has designated an office, such as a County
recording office, the lien should be filed in that office. This
will likely be the sane office where State Superfund liens are
filed or where general real property liens, e^. mechanic's liens,
are filed. "If the State has not by law designated one office for
the receipt of such notices of liens, the notice shall be filed in
the office of the clerk of the United States district court for the
district in which the real property is located." (§107(1)(3))
Where there is any doubt as to the designated State office,
the lien should be filed both in the office of the clerk of the
United States district court for the district in which the real
property is located and in the most appropriate local office for
recording property interests. Filing in the appropriate local
office is important, since parties with an interest in the property
are more likely to review liens in the local office than in federal
district court.
IV. IN REM ACTIONS FOR RECOVERING COSTS CONSTITUTING THE LIEN
Under Section 107(1)(A), "[t]he costs constituting the lien
may be recovered in an action in rem in the United States district
court for the district in whicTTtHe"removal or remedial action is
occurring or has occurred." An in rem action is an action against
the property of the PRP. In order to institute a proceeding in rem,
the property must "be actually or constructively within the reach"
of the court." 36 Am. Jur. 2d Forfeitures and Penalties §28 (1968).
By contrast, the typical cost recovery action is an in personam
action against the PRP.
In rem actions should be considered where the litigation team
believes~~tKat an action to recover costs covered by the lien will
enhance its efforts to recover all costs incurred in a response
action. Such actions will be particularly useful where the pro-
perty constitutes a significant asset of the PRP, and where the
government is having difficulty reaching an expeditious cost
recovery settlement. The in rem action, which will seek an order
directing sale of the property"^/ should generally be combined with
an in personam action for costs. Before bringing an in rem action,
theTegional office should consider the amount of the claim, the
2/ An in rem action may be delayed by an automatic stay, obtained
" in sTbankruptcy proceeding, which serves to stay "any act to
create, perfect, or enforce any lien against property of the
estate." (Emphasis added) 11 U.S.C. §362(a)(4). The automatic
stay also prohibits perfection of a lien, through filing notice
of the lien, against a bankruptcy debtor.
-------
- 7 -
condition of the site after the response action and the likely
marketability of the site. Note that an in rem action will require
the same elements of proof as any cost recovery action.
Section 107(1)(4) further states that "[n]othing in this
subsection shall affect the right of the United States to bring an
action against any person to recover all costs and damages for
which such person is liable under subsection (a) of this section."
Thus, where the government seeks to enforce the federal lien, it is
not precluded from recovering the balance of its response costs
directly from! the landowner or any other liable party.£/
DISCLAIMER
This memorandum and any internal procedures adopted for its
implementation are intended solely as guidance for employees of the
U.S. Environmental Protection Agency. They do not constitute
rulemaking by the Agency and may not be relied upon to create a
right or a benefit, substantive or procedural, enforceable at law
or in equity, by any person. The Agency may take action, at variance
with this memorandum or its internal implementing procedures.
i
Attachment
3/ Moreover, after EPA obtains a judgment, it should consider
~ using state judgment lien provisions, which may cover all real
property of the debtor.
-------
NOTICE OF FEDERAL LIEN
NOTICE IS HEREBY GIVEN by the United States of America that it holds a lien on
the lands 'and premises described below situated in the State of Washington,
as provided by Section 107(f) of the Superfund Amendments and Reauthorization
Act of 19B6 (SAKA), Public Law No. 99-499. amending the Comprehensive Environmental
Response. Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. $9601 et
seq. , to secure the payment to the United States of all costs and damages covered
by that Section for which Western Processing Company, fee. and Carat J. Nieuwenhuis
(and the marital community composed of himself and his wife) are liable to the
Urited States wider Section 1 07 (a) of CERCLA as amended. The lien for which this
instrument gives notice exists in favor of the United States upon all real property
and ritfits to such property which belong to said persons and are, have been, or will
be subject to, or affected by, removal and remedial actions as defined by federal
law. at or near 7215 South 196th in the City of Kent, County of King, State of
Washington, including the following, described land:
That portion of the Southeast Quarter (S.E. 1/4) of the
Northwest Quarter (N.W. 1/4) of Section One (1). Township
Twenty-Two (22) forth. Range Four (4) East, Willamette
Meridian, lying Westerly of the Puget Sound Electric
rigit-of-way less than forth Thirty (30) feet of Drainage ;
Ditch No. One (1), containing 12.9 acres nore or less.
f '
This statutory lien exists and continues until the liability for such costs
id damages (or for any decree or judgement against such persons arising out of
ich liability) is satisfied or becomes unenforceable through the operation of the
statute of limitations as provided by Section 113 of Public Law 99-499.
IN WITNESS WHEREOF, the United States has caused this instrument to be executed
through the (phJLted/jS^ates Environmental Protection Agency, and its attorney, in his
official' 'capacity as Re^onal Counsel of the United States Environmental Protection
Dated^t &a^e.}&6jiV«l&. this 23*
I. 'J^a'. l uJ! 'A
«1 • ,U^* i V T^ ' «~. .
-•• -..-.SB.A > i y •*•.: I
L
*V1V .*
.a \\>e*-^ •%
-Js \f**^ f-.-
Ox M * *
_i f* ^ -*^**"»"^ * - • _ %
United States Of-America)
State of Washington )ss
County of King )
day of I .e*\\4ijfAi*.
''•••
UNITED ST^ES OF 'AMERICA and
UNITED STATES ENVIROtMEffXAL
PROTECTION AGENCY
- V,
By; / ^/^f
s R. Moore
Regional Counsel
J.S. EPA, Region 10
• "7- '
i/rt^v
r j
/A/^
, ..... •.•
& ^^^^^*
s'^£
-------
-------
&EPA
United States
Environmental Protection
Agency
Office of
Soi'd waste ana
Emergency Reioonse
DIRECTIVE NUMBER:
9360.1-01
TITLE:
Interim Final Guidance on Removal Action Levels
at Contaminated Drinking Water Sites
10/06/87
APPROVAL DATE:
EFFECTIVE DATE: 10/06/87
ORIGINATING OFFICE:
CJ FINAL (lnterim Finai)
G DRAFT
STATUS:
REFERENCE (other documents):
OSWER, OERR, ERD
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE D
-------
OSWER 01recti~v* 9360.1-01
REMOVAL ACTION LEVELS FOR CONTAMINATED DRINKING WATER SITES
Introduction
The purpose of this guidance is to establish "action levels" for providing
alternate £5r supplies under Superfund removal authority at contamnated
drinking wrterstes. The action level is the primary criterion that must be
Sit forVJlte to qualify for removal response. The action levels established
"this guidance must generally be satisfied before removal authority can be
used at either National Priorities List (NPL) sites or non-NPL sites.
Under the 1982 National Contingency Plan (NCP), removal actions were taken
in rpsoonse to "immediate and significant" threats to human health or the
v r0S nl The rimoval program used the 10-Day.Health Advisoryr as t e pr ncipal
benchmark to identify those drinking water contamination incidents that posed
the most acute threats to human health. The November 1985 NCP broadened removal
authority by authorizing response in situations that present a "threat to
human health or the environment. Therefore, removal actions may now be taken
in less urgent situations than under the 1982 NCP.
in response to this expansion of removal authority, the Office of Emergency
and Remedial Response (OERR) 1s revising removal program action levels for -
Contaminated drinking water sites. This guidance expands the P™*™ *"«•
in a number of ways. First, the numeric action, levels are now based on leveTs
that are protective for a lifetime exposure rather than a 10-day exposure.
S-cond bSth carcinogenic and non-carcinogenic health effects are considered
Third, a reduction factor is used for volatiles to account for exposure due to
inhalation. Finally, additional guidance is provided on the use of site-specific
Factors to trigger removal actions.
The action levels established in this guidance allow a site to qualify for
removal response if either: 1) the numeric trigger 1s exceeded at the tap, or
2) site-specific factors otherwise indicate that a significant health threat
exists. The guidance also discusses information sources on health threats from
drinking water contamination, factors to consider in determining the extent of
action, action levels vs. cleanup standards, prioritizing removal sites, and
obtaining exemptions to the statutory limits for alternate water supply sites.
Action Level Based on Numeric Trigger
The numeric trigger is calculated using a model that establishes f™r
different action levels, depending on whether the substance is also a potential
h man carcinogen 'and/o/volStile. The model is explained below and sunmrized
in Exhibit 1. Based on this model Exhibit 2 ists ^"T, cun^f?l 'JJJL
for various substances that may be found in drinking water at Superfund sites.
A site may qualify for removal response if the numeric trigger for the drinking
water cSntaSinant is exceeded at the tap of at least one residence (Residence
includes schools, businesses, etc.). (Note that the decision to nitiata
removal action is based on other factors as well, such as the availability of
other response mechanisms to initiate action in a timely manner.)
-------
-2-
The first step in calculating ^e "-eric trigger is
the substance of concern is also .tent J- "J^«f u ,
For purposes of this fljidance • *a^nogen classification guidelines. (A sub-
categories A, B, or C or LKA s ""• ? n 1f 1t 1s in categories 0 or E.)
stance should be considered a non^arcinogen it c molecjar weight, high
Volatile organic chemical s OCs) are ge n«"' f hi guidance, vOCs include
designate volatiles) .
I- »"-«*•*"• non-carcinogens - Action level equals the Drinking Water
Equivalent Level MkUU »-*
2.
3.
4.
n.n.»rc1no9ens -- Action level equals 50 percent of the DWEL.
'-' gb'jasiBlt5.
lower of the two.
the lower of the two.
the tap, the site .ay qualify for removal response.
as.1! st
'DWEL
Reference Dose (RfD) x 70 k
70 kg
Z liter
rs/day
-------
OSWER Directive 9360.1-01
-3-
the limited scope of the removal program, it may not be appropriate for-
th! r«noval Drooron to trigger removal action at levels equal to or below
the 5? ThKSS. OERR is currently examining whether it would be
aSoropriate to establish an alternate action level for these substances
SK is above th! MCL. Until an action level is established for these
substances, removal action may be initiated if contaminant levels exceed
the iS-Da Health Advisory. However, if contaminant evels are between
the calculated action level and the 10-Day Health Advisory OERR wil I review
individual site conditions to determine if removal action should be taken.
• The rair..iatEd action level is based on the DUEL, but the 10-Day Health
iL"rv i« lower than the mi. Tor most substances, the ig-oay neaiih
Advi'sory is higher than the l)Ukl. In some cases, however, the 10-day
adv sory is lower than the DUEL. (This situation occurs primarily where
10-15 exposure data were not available, so the 10-Day Health Advisories
were based on other studies.) For example, the action level for barium (a
nonvolatile non-carcinogen) is based on the OWEL of 1800 ppb, but the 10-
nay Health Advisory for barium is 1500 ppb. OERR Is currently examining
whether it would be appropriate to use the lower 10-day advisories as the
removaT action level .Until OERR determines if an alternate action level
is appropriate for these substances, removal action may be in tiated if -. f
contaminant levels exceed the OWEL. However, if contaminant 1 eve s are
between the (lower) 10-Day Health Advisory and the DWEL, OERR will review
1 individual site conditions to determine if removal action should be taken.
Action level Based on Site-Specific Factors
A significant health threat may exist even though the numeric action level
has not been exceeded. A removal action may be initiated if the health risk at
a sits has been analyzed in detail and the analysis indicates that a serious
health risk is present due to site-specific factors. F.xamples of ^ch factors
include evidence that a contaminated groundwater plume is moving, contaminant
levels will likely increase (e.g., increased pumping from an aquifer antic pated
during sunrner months), people have been drinking contaminated water for a long
period of time, multiple contaminants are likely to result in synergistic
effects, there are sensitive members in the population at risk, etc.
With regard to a threat based on future contamination, as a general rule,
removal action may be warranted where it can be projected that the """jenc
action level will be exceeded within 6 months. It is important to note that
this 6 month period is not related to the definition of time-critica /non-time-
critical removal actlonsT For example, where contaminant levels will likely
exceed the MEL by a significant amount within 6 months, a time-critical removal
tction would be appropriate. However, if contaminant levels wil only exceed
the DWEL by a minimal amount within 6 months, a non-time-critical removal
action nay be more appropriate. Future threat may therefore warrant either a
time-critical or non-time-critical removal action.
-------
OSWER Directive 9360.1-01
-4-
tt~£X£j£>% ,
-------
OSWER Directive 9360.1-01
-5-
Actlon levels vs. Cleanup Standards
The numeric actfdn levels established in this guidance are not Intended to
ss^^aw^«w
:' 2 -* K^rr^
will oV prSldid to treat drinking water contaminated with
(TCE), treated water should achieve 5 ppb TCE, the MCL.
Prioritizing Removal Sites
-------
OSWER Directive 9360.1-01
Exhibit 1: Summary of Action Level Decision Model
no contaminant levels exceed the NUMERIC action level?
Is the substance a volatile and/or potential human carcinogen?
• Non-volatile non-carcinogens -- Action level equals the OWEL.
0 volatile non-carcinogens -- Action level equals 50% of the DUEL.
• Non-volatile carcinogens -- Action level is determined by comparing the
DUEL to the 10'4 Lifetime Upperbound Cancer Risk Level, and choosing the
lower of the two.
• volatile carcinogens - Action level is determined by comparing 50% of the
OWEL to the ID-4 Lifetime Upperbound Cancer Risk Level, and choosing the
lower of the two.
Qo either of the two modifications to the numeric action level apply?
Is the numeric action level lower than or equal to the MCL, if available? If.yes:
e if contaminant levels are between the numeric action level and the 10-Day
Health Advisory, contact OERR to determine appropriate action.
0 if contaminant levels exceed the 10-Day Health Advisory, action may be taken
if the site otherwise qualifies for removal response.
If the action level is based on the DUEL, is the 10-Day Health Advisory lower
than the OWEL? If yes:
0 If contaminant levels are between the (lower) 10-Day Health Advisory and the
OWEL, contact OERR to determine appropriate action.
0 If contaminant levels exceed the DUEL, action may be taken if the site
otherwise qualifies for removal response.
If contaminant levels do not exceed the numeric trigger, can the site qualify for
removal response based on SITE-SPECIFIC FACTORS?
A site can qualify for removal response if the health risk at a site has been
analyzed In detail and the analysis indicates that a serious health risk is present
due to site-sped fie factors.
0 ATSDR may be particularly helpful in providing advice on health risk due to
site-specific factors.
0 OERR concurrence must be obtained before approving Action Memoranda based on
site-specific factors, even where the site will not exceed the statutory
limits on removal actions.
-------
Exhibit 2
REMOVAL NUMERIC ACTION LEVELS
FOR CONTAMINATED nRINKIMP, WAFER SITES
(ug/L)
0/R7
Chemical
Alachlor
Barium
Benzene
Cadmi urn
Carbofuran
Carbon tetrachloride
Chlordane
Chlorobenzene
Chromium (total)
Cyanide
o-Di chlorobenzene
p-Oi chlorobenzene
1,2-Oichloroethane
1 ,1-Dichloroethylene
Ci s-1 ,2-Dichl oroethyl ene
Trans- 1 ,2-Dichl oroethyl ene
Dichlorome thane/Methyl ene
chloride
Volatile
(Y/N)
N
N
Y
N
N
Y
N
Y
N
N
Y
Y
Y
Y
Y
Y
Y
EPA
Carcinogen
Group*
B2
n
A
n
E
B2
02
D
D
D
D
C
B2
C
n
D
B2
MCL
None
1000
5
10
None
5
None
None
50
None
None
75
5
7
None
None
None
10- nay
HA
100
1500C
235
43C
50C
160
63
4300C
1400
220C
8930C
1070QC
740C
1000C
1000C
1430C
1500
OWELb
350
1800
NA
17
175
24
1.6
1TO5
168
770
3115
3500
None
350
350
350
1750
Cancer "*isk
Level
15
NA
120
NA
NA
27
2.7
NA
NA
NA
NA
175
38
None
NA
NA
48
Removal
Action
Level
15
iaood
120
17
17 5d
12
1.6
753
16R
770d
1558
175
3R
175
175
175
48
-------
Exhibit 2
REMOVAL NUMERIC 'ON LEVELS
FOR CONTAMINATED ORi ..-if, WAFCR SITES
(ug/L)
9/97
Chemical
~~
Endrln
Ethylbenzene
Heptachlor
Llndane
Mercury (Inorganic)
'Methoxychlor
Methyl ethyl ketone (MEK)
Nickel
Pentachl orophenol (PCP)
Styrene
Tetrachloroethylene (PCE)
Toulene
Toxaphene
1,1,1-Trlchloroe thane
Trlchloroethylene
Vinyl chloride
Xylenes (total)
Volatile
(Y/N)
Y
N
N*
N
Y
U
Y
Y
Y
Y
N
Y
Y
Y
Y
" r
EPA
Carcinogen
Group9
D
R2
D
n
D
D
D
C
B2/C
b
D2
U
R2
A
n
T
MCL
1
0.2
None 1
1
None
4
2
100
None
None
None
None
None
None
5
200
5
2
None
10- Day
HA
5
3200C
in
1?00
1.6C
2000
7500C
1000
300C
2nooc
?000
3460C
40
35000°
None
260Q
7800C
OWELb
1.6
3395
17
10
5.5
1750
R64
350
1050
7000
500
12100
None
I!!!!'!
257
None
2157
in-*
Cancer Risk
Level
NA
NA
7.6
None
NA
NA
NA
NA
NA
None
66
NA
3.1
NA
2flO
1.5
NA
Removal
Action
Level
1.6
i»™
7.6
10
£
5.5f
1750
432
.350
525d
3500d
66
»
6050d
409
500
128
1300"
1078
-------
Exhibit 2
REMOVAL NUMERIC ACTION LEVELS
FOR CONTAMINATED DRINKING WATER SITES
(ug/L)
9/87
Chemical
Volatile
(Y/N)
EPA
Carcinogen
Group*
MCL
10- Day
HA
DWELb
io-4
Cancer Risk
Level
Removal
Action
Level
a Carcinogen group designation is from EPA carcinogen classification guidelines for effects from ingestion.
b DWEL = RfB x 70 kg . (Note that the DUEL in health advisory documents produced by EPA's Office of Drinking Water
2 I/day may be slightly different due to rounding,)
c Because no suitable studies of appropriate duration were available, these 10-Day Health Advisories were based on
Health Advisories of greater or lesser duration, e.g., 1-Day, Longer-term, and Lifetime Health Advisories.
d Removal action level Is an Interim value. OERR is examining whether it would be appropriate to use the lower 10-Day
Health Advisory (50* for volatiles) as the action level. Until that time, if contaminant levels levels exceed the
action level shown In the table, removal action may be taken. If contaminant levels exceed the 10-day advisory
(50% for volatiles), but not the DWEL (50% for volatiles), consult OERR.
e Not soluble in water.
f Removal action may be initiated if mercury levels exceed the DWEL of 5.5 ug/L. If mercury levels exceed the 10-day
advisory of 1.6 ug/L, but not 5.5 ug/L, consult OERR.
9 Removal action may be initiated immediately if toxaphene levels exceed the 10-Day Health Advisory of 40 ug/L.
If toxaphene levels exceed the 10~* Cancer Risk Level of 3.1 ug/L, but not 40 ug/L, consult OERR.
h Removal action may be Initiated immediately if vinyl chloride levels exceed 1300 ug/L, which is 50% of the 10-Day
Health Advisory. If vinyl chloride levels exceed the 10'4 Cancer Risk Level of 1.5 ug/1, but not 1300 ug/L,
consult OERR.
NA = Not appropriate.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OSWER Directive 9835.5
OCT 6 iS87
MEMORANDUM
SUBJECT: EPA Interim Guidance on Indemnification of Superfund
Response Actiwa Contractors Under Section 119 of SARA
/ ^f ' fiSr "/•«
PROM:
TO:
Porter, Assistant Administrator
Solid Ha&be aixj Emergency Response
ru - _ ^»
c. Morgan /lunghcfcn^Atting Assistant Administrator
Office of Administration and Resources Management
Regional Administrator, Regions I-X
Regional Counsel, Regions I-x
Director, Waste Management Division
Regions I, IV, V, vii, and VIII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Region III and VI
Director, Toxics and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
Director, Environmental Services Division
Regions I, VI, and VII
Purpose
Subject to certain restrictions, Section 119 of the
Superfund Amendments and Reauthorization Act of 1986 (SARA)
authorizes the Environmental Protection Agency (EPA)1 to provide
indemnification2 to response action contractors (RACs) working at
Superfund sites for States, potentially responsible parties
(PRPs), and EPA (including RACs working for the U.S. Army Corps).
1 Under Executive Order 12580, the President has also
authorized other Federal agencies to indemnify RACs working for
those agencies.
2 "Indemnification" is an agreement whereby one party
agrees to reimburse a second party for losses (in this case
liability losses) suffered by the second party.
-------
OSWER Directive 9835.5
gat EPA-lead sites)3. The purpose of this memo is to
MT EPA m»v nrftiHrf* *»* <*,—.<-_ fco RACg using° l5 t0
Background
Response action contractors have
;~jcttii"£Ji^
Superfund program. During the Superfund reaKhorizSJion deSate
the RAC community identified several factors which, the RACs
contended, imnalrpd *h«»ir ability to --»---—•--
c?mmercial liability insurance market to
un Insurance Average to RACs involved in the
Superfund cleanup program that is both adequate and
affordable .
indP.n« ""thorization of CERCLA, EPA provided
indemnification to RACs working for EPA through contract
authority implementing CERCLA. EPA took this step in -order to
contractors, g^en the absence of pollution
? covera*e' Dnd« this old indemnification
i ™??M %ral government indemnified RACs above an
eyes !l "°! fo* third Partv liabilities and defense
expenses. The indemnification agreement was void in cases of
gross negligence or willful misconduct.
contractor»Aas*Cti°n 119(e)(2) defines "response action
H- Jh? ent"S int° a resP°nse action contract (which
defined in part as any written contract or agreement to
li«tide«anJKCESSA remOVal °r "medial a"ion a? a facilUy
listed on the NPL, or to provide any ancillary services
related to such response) with respect to any release or
threatened release of a hazardous substance or pollutant or
contaminant from a facility and is carrying out such a
contract; and
any person retained or hired by the person who enters into a
response action contract, to provide any services related to
a response action; and
any person, public or nonprofit private entity, conducting a
field demonstration pursuant to SARA Section 311 (b) (i.e.,
the Alternative or Innovative Treatment Technology Research
and Demonstration Program").
-------
RAC
OSWER Directive 9835.5
t0 "By °f the C°ncerns of
Establishing a standard of negligence for actions brought
against RACs under Federal law;*
Authorizing EPA to provide to RACs, on a discretionary
basis, limited indemnification against pollution liability
arising from RAC negligence; and °mcy
al }iabilitv standard of negligence, combined with
indemnification which is subject to limits and
deductible, provides adequate performance incentives for
RACs working in the Superfund program;
\
RAC indemnification provides an adequate substitute for
insurance;
Discretionary indemnification is an interim vehicle that
will keep the Superfund program operative until the
insurance industry returns to the RAC liability insurance
market; and
Discretionary indemnification does not create a Federally
intrusive insurance program that interferes with private
sector efforts to develop RAC liability insurance coverage.
4 The Federal standard of negligence under Section 119
applies only to Federal law. it does not preclude States from
applying their own statutory law or common law liability
standards, which may in some cases be strict liability. Response
action contractors sued in Federal courts are under a "standard
of care" defined by Federal law as negligence. However, if an
action is brought under state law, a strict liability standard
could apply.
-------
4 OSWER Directive 9835.5
EPA Task rote* on RAC indemnification
To avoid program delays, a Task Force was established to
determine how-EPA will provide indemnification to RACs working in
the Superfund program. The Task Force is composed of
representatives from EPA's Office of Waste Programs Enforcement
(OWPE), Office of Emergency and Remedial Response (OERR), Office
of Solid Waste (OSW), Office of General Counsel (OGC), Office of
the Comptroller (OC), Office of Administration (OA), and the U.S.
Army Corps of Engineers. The primary goals of the Task Force are
to:
o Establish an EPA RAC indemnification program;
o Develop Section 119 RAC final indemnification guidelines and
regulations;
v
o Ensure a forum for adequate public comment on RAC
indemnification; and
o Promote private sector provision of RAC pollution liability
insurance in the future by providing technical assistance to
the insurance industry.
The Task Force will attempt to reach these goals by
producing several work products that: (1) carefully analyze and
estimate the potential pollution liability risk to which RACs are
exposed by participating in the Superfund cleanup program; (2)
determine what the final EPA indemnification terms and conditions
will be; (3) prepare the Agency for implementing an interim RAC
indemnification program; and (4) develop the Section 119
regulations.
Interim EPA Indemnification Guidelines
SARA Section 119 now provides EPA's sole authority to extend
indemnification to RACs working in the Superfund program.
Delegation of authority from the President authorizing EPA to use
Section 119 provisions was issued through Executive Order 12580
on January 26, 1987. The delegation authorizes EPA to use
Section 119 indemnification authority from the date of enactment
(DOE) of SARA. Consequently, EPA must adhere to Section 119
provisions from SARA DOE (October 17, 1986).
Section 119(c)(7) requires that EPA promulgate regulations
for carrying out indemnification provisions and, prior to
promulgation of the regulations, develop guidelines to carry out
use of Section 119 indemnification authority. Because of the
complexity of the issues, EPA is proceeding deliberately in
establishing these guidelines and is seeking substantial public
-------
5 OSWER Directive 9835.5
comment, feanwhile, EPA is providing contractors with Section
119 coverage on an interim basis, using procedures outlined in
this memorandum. Ultimately, this coverage will be amended to
reflect guidance and regulations that will be developed in
conformance with Section 119 requirements.
As further described in this memorandum, authorization to
provide indemnification will be made by OSWER with concurrence
from the Office of the Comptroller (OC). Authorization to
indemnify will be made upon receipt of a recommendation from the
Task Force. The OC will provide concurrence (or non-concurrence)
with recommendations to indemnify within seven calendar days of
receipt of a recommendation. Execution of indemnity agreements
win be made by appropriate Agency administrative offices.
. Section 119(c)(4) mandates that RACs must meet the following
requirements before they can receive Federal indemnification for
potential pollution liability associated with Superfund response
action activities: .
o The RAC must make diligent efforts to obtain insurance
coverage from non-Federal sources to cover pollution
liability; and
o in the case of a RAC contract covering more than one
facility, the RAC agrees to continue to make such diligent
efforts each time the RAC begins work under the contract at
a new facility.
Section 119(o)(4) also requires that the following
circumstances must exist before a RAC can receive Federal
indemnification for potential pollution liability associated with
Superfund response action activities:
o At the time the response action contract is entered into,
insurance is not available, at a "fair and reasonable
price", in sufficient quantity to offset potential RAC
pollution liability risk; and
o Adequate insurance to cover such liability is not generally
available at the time the response action contract is
entered into.
In future guidance (i.e., the guidance which is to be
published for public comment), EPA plans to include guidelines
for determining whether insurance is "generally available" or is
fairly and reasonably priced". For the purpose of this interim
guidance, EPA has determined, based on information currently
available, that Superfund RACs are unable to obtain reasonably
priced pollution liability insurance. Therefore, RACs are
eligible to receive indemnification under Section 119 from DOE of
-------
6 OSWER Directive 9835.5
SARA. Botwpr, EPA will require that RACs seeking Federal
indemnification meet the following requirements:
o Within 30-'days of signing an indemnification agreement with
EPA, RACs must submit'to EPA (or to the appropriate State
Contracting Officer) written documentation concerning the
efforts they have made to date to secure pollution liability
insurance coverage (e.g., a RAC could submit a written
statement from an insurance broker stating that the RAC has
attempted to secure pollution liability coverage from
insurance carriers in the past six months).
o if the RAC has secured pollution liability coverage, it must
submit to EPA (or to the State Contracting Officer) a copy
of the policy and declaration page; and
o Every twelve months (or more frequently, if EPA determines
that there has been a significant change in circumstances
concerning the availability of pollution liability
insurance) the RAC must submit to EPA (or to the State
Contracting Officer) written documentation addressing the
additional efforts the RAC has made to secure pollution
liability insurance coverage including:
Copies of applications submitted to three known
underwriters of pollution liability insurance;
If pollution liability coverage was denied by an
underwriter, a summary of the reasons why such coverage
was denied;
A status report of any pollution liability insurance
obtained. The report would include: 1) type of
coverage; 2) premium charged; 3) limits of coverage; 4)
deductible levels, and any other major terms and
conditions of the insurance coverage. A copy of the
actual policy and declaration page could be provided in
lieu of a written status report;
If pollution liability coverage was offered by an
underwriter, but not accepted by the RAC, a report on
the insurance offered (such as the "status report"
required above), and a summary of the reasons why such
coverage was not accepted; and
A status report concerning the alternative pollution
liability risk transfer mechanisms the RAC has pursued
other than commercial pollution liability insurance
(e.g., risk retention groups, purchasing groups,
association captives).
-------
7 OSWER Directive 9835.5
*r, ^his tnforaation should be forwarded to the appropriate EPA
official foe State Contracting Officer). This information will
be reviewed by the Task Force as needed.
As required under the interim guidelines listed above, EPA
expects RACs to demonstrate the extent to which they have
attempted to secure pollution liability insurance coverage. EPA
Si^uJ??"?? K??KRA?8 WU1 continue to »onitor the market for
pollution liability insurance, and continue to seek and secure
such insurance coverage (however limited) from commercial
insurance carriers or 'through alternative risk transfer
mechanisms (e.g., self-insurance pools).
Indemnification of RACs Working for BPA
it a I??!8!?? indemnifi«tion terms will apply to work performed
!LJ !! IK ?f the date °f enactment (DOE) of SARA if response
DOB of sSl. ^ initiated under an EPA contract prior to the
An-a 4 int° ne'W indemnification agreements (See
Attachment A), subject to Section 119 authority, with:
o RACs who are currently working under contract with EPA, for
work they wi.ll initiate at a new site after DOE 9f SARA; and
o RACs receiving new contracts (or new cooperative agreements,
in* J off? *f Site Dem°nstration projects) with EPA after
DOE of SARA for Superfund response action activities.
RACs currently under contract with EPA have been alerted to
the changes that will be forthcoming to their indemnification
agreements with EPA. EPA headquarters personnel in the
Procurement and Contracts Management Division of the Office of
Administration have been trained on the use of Section 119 and,
with the assistance of the Task Force, will administer Section
us indemnification interim procedures for EPA contractors
Requests foe indemnification of EPA contractors will be subject
to the approval of OSWER and concurrence of OC.
-------
OSWER Directive 9835.5
Indemnification of RACs Working for States
Section 119(c)(2) authorizes the indemnification of RACs
working for States or political subdivisions of States (pursuant
to a Section 104(d)(l) agreement with EPA) for new work initiated
at Superfund sites from DOE of SARA. EPA may indemnify RACs
performing response action activities for a State at a State-lead
Superfund site after DOE of SARA. EPA will offer indemnification
to RACs working for a state only if:
o The RAC's response action is part of new site work initiated
at a Superfund site after DOE of SARA and it is related
directly to cleanup of the site; ;
o RACs working for a State must meet all of the 'circumstances
and issuance requirements set forth by Section 119(c)(4), as
listed above; and
o RACs working for a State must meet all of EPA's interim
guideline requirements, as listed previously on pages five
and six.
i i
i
EPA will not offer indemnification to RACs for site work they
performed for States prior to DOE of SARA. Any EPA
indemnification provided to a RAC(s) working for a State(s) will
be subject to limits, deductibles, and other restrictions as
required by Section 119(c)(5).
Until EPA issues final guidance and regulations, all
requests for EPA indemnification of a RAC working for a State at
a Superfund site will be processed via the Task Force. States
should submit requests to both the Indemnification Task Force,
c/o Director, Office of Emergency and Remedial Response (OERR),
and to the Regional Superfund Branch Chief. Requests should
identify the Regional Site Coordinator and State contact, and
should include pertinent information regarding Section 119(c)(4)
requirements as discussed previously. If the Task Force
recommends approval of the indemnification request, the Office of
the Comptroller will provide concurrence (or non-concurrence)
within seven calendar days of receipt of the recommendation.
Final approval for EPA indemnification of a State RAC will be
made by the Director of the Office of Emergency and Remedial
Response. If approval is authorized, then the Grants
Administration Division will implement the approval through a
special condition to be included in the State/EPA cooperative
agreement (See Attachment A).
-------
9 OSWER Directive 9835.5
Indemnification of RACa working for Other Federal Agencies
Section 119(c)(2) authorizes the indemnification of RACs
working for other Federal agencies at Superfund sites from DOE of
SARA. A delegation of authority from the President authorizing
other Federal Agencies to use Section 119 provisions was issued
on January 26, 1987. Other Federal agencies follow all EPA
guidance and regulations with respect to Section 119. Other
Federal agencies that use Section 119 authority must provide
their own source of funds (e.g.,their agency appropriation) to
pay all indemnification costs (e.g., claims and legal defense
costs).
At some Superfund sites, the D.S. Army Corps of Engineers
manages response actions pursuant to an interagency agreement
with EPA. For Section 119 indemnification purposes, any RAC
working as a contractor for the Corps of Engineers at such sites
(and where, for remedial actions, the site is listed on the NPL)
is considered to be working for EPA rather than for some "other
Federal agency". EPA will offer the same indemnification to
contractors procured by the Corps of Engineers that it offers to
contractors procured by EPA.
Indemnification of RACs Working for PRPs
Under Section 119(c)(2) authority, EPA can, in limited
circumstances and subject to strict financial tests, indemnify
RACs performing response action activities for PRPs subject to a
consent order or decree at Superfund sites after DOE of SARA.
EPA will use its authority to indemnify RACs working for PRPs
only in extremely limited cases, e.g., where EPA indemnification
of the PRP RAC is the solution of last resort. EPA will offer
indemnification to RACs working for PRPs only if;
o The PRPs are unable to provide adequate indemnification, and
as a result, are unable to obtain the services of a
qualified RAC;
o The RAC's response action is part of new site work initiated
at a Superfund site after DOE of SARA, and the action is
related specifically to the cleanup of the site;
o RACs working for PRPs meet all of the issuance requirements
set forth by Section 119{c)(4);
o The circumstances set forth in Section 119(c) (4)'exist; and
o RACs working for PRPs meet all of EPA's interim guideline
requirements.
-------
10 OSWER Directive 9835.5
EPA ^§* not °ffer indemnification to RACs for work
performed-ISr PRPs prior to DOE of SARA, nor for any PRP RAC
"1?°!!" *? Y thdt " n0t related specifically to a remedy at
Further, Section 119(c)(5)(C) of SARA requires that,' before
EPA can enter into an indemnification agreement with a RAC
performing work under contract with a PRP(s) at a Superfund
site(s), EPA must determine the amount which the PRP(s) is able
to indemnify the RAC. In making such a determination, EPA shall
take into account the total net assets and resources of the
PRP(s) with respect to the facility at the time of such
determinations. If EPA determines that the amount which the
PRP(s) is able to indemnify the RAC is inadequate, then EPA may
enter into an indemnification agreement with the RAC to meet the
anticipated shortfall. EPA will consider the combined
capabilities of all the PRPs at a site to determine whether, as a
group, they are capable of providing adequate coverage, in
general, the Agency expects to use this provision only in cases
where PRPs are small firms with few assets. Therefore, Regions
should not make requests for Federal indemnification where PRPs
are large corporations with substantial assets or where the PRPs,
as a group, have substantial assets. As a result, EPA does not
expect requests for Federal indemnification to become an integral
part of settlement negotiations.
EPA plans to provide additional guidance in the future
concerning the determinations that need to be made as a
prerequisite to indemnifying RACs working for PRPs (such as
defining "net assets and resources" of the PRPs, and whether the
PRPs are "unable to provide adequate indemnification"). Until
EPA distributes this guidance, all such determinations will be
made by the Task Force.
EPA indemnification of a RAC working for a PRP is a measure
of last resort. If EPA does provide indemnification in these
cases, the consent decree (or order) should specify terms and
conditions, using the model EPA indemnification agreement for
RACs working for PRPs shown in Attachment A. If EPA enters into
an indemnification agreement with a RAC working for a PRP(s), the
RAC must:
o Retain financial responsibility for a deductible amount if
commercial pollution liability insurance is unavailable or
unreasonably priced; and
o Exhaust all administrative, judicial, and common'law claims
for indemnification against all PRPs participating in the
cleanup of the facility before EPA can pay a claim.
-------
11 OSWER Directive 9835.5
If a RAC has received partial indemnification from a PRP(s),
EPA may a 1*6 provide indemnification in cases where the PRP
indemnification is deemed insufficient, and in mixed funding
cases. EPA may provide indemnification above the PRP
indemnification. The consent decree should specify the terms and
conditions using the model EPA indemnification agreement shown in
Attachment A.
All requests for EPA indemnification of a RAC working for a
PRP(s) at a Superfund site should be submitted to both the
Indemnification Task Force, c/o Director) Office of Waste
Programs Enforcement (OWPE), and to the Regional Superfund
Enforcement Branch Chief. Please identify the Regional Site
Coordinator and the Regional Counsel's Site Representative.
Include pertinent information regarding the number of PRPs,
financial profile of the PRPs, type of work to be performed,
etc., such that the Task Force can make determinations per
Section 119(c)(4) and Section 119{c)(5).
Upon determining that a RAC meets all of the circumstances
and requirements set forth in Section 119 and in EPA interim
guidelines, the Task Force will evaluate an amount to which the
PRP(s) is able to indemnify the RAC and an amount to which EPA
will indemnify the RAC in excess of the PRP indemnification
amount. Any EPA indemnification provided to a RAC(s) working for
PRP(s) will be subject to limits, deductibles, and other
limitations as required by Section 119(c)(5). if the Task Force
recommends approval of the indemnification request, the Office of
the Comptroller will provide concurrence (or non-concurrence)
within seven calendar days of receipt of the recommendation.
Final approval for EPA indemnification of a PRP RAC will be made
by the Director of OWPE.
RACS Working for PRPs Without EPA Indemnification
Those RACs working for PRPs at Superfund sites who do not
receive indemnification from EPA may either receive no
indemnification at all, or may receive indemnification from PRPs
only. For those RACs working with no indemnification, PRPs
should demonstrate that the RAC is qualified to perform the work
adequately, has sufficient financial capability to complete the
projected work, and demonstrates financial responsibility for
potential third party liability costs. This can be ensured
through a combination of adequate competition in the contract
procurement process and a demonstration of financial
responsibility. Such a demonstration can consist of purchase of
performance bonds, letters of credit, insurance, maintenance of a
trust fund, etc. A consent decree should specify the
aforementioned.
-------
12 OSWER Directive 9835.5
For tbgac RACa receiving indemnification from PRPs onlv (and
.ffJi^Sf th%inden""i«tion to be adequate,, RACs shoulS
alified to perform work adequately. This can be ensured
through a combination of adequate competition in the contract
procurement process, and through a demonstration of financial
responsibility. The PRP indemnification is sufficient
h«nS«St?a^°n °Vina!!?ial responsibility, therefore, performance
bonds, letters of credit, etc., are not required. The consent
decree should specify the aforementioned as well as the
indemnification terms and conditions.
Publicly Owned Treatment Works
Section 119(0(5)(D) specifically prohibits EPA from
ihfT^frS9 f" °?ner °r °Perator of a facility regulated under
the Solid Haste Disposal Act. Therefore, publicly owned
treatment works subject to permit-by-rule provisions cannot be
indemnified (nor can any other permit-by-rule facility, such as
an underground injection facility). The intent of this provision
is to prohibit EPA from offering indemnification to off-site
»h"f ™™r dispos"s of Superfund hazardous waste. Therefore,
while POTWs not subject to RCRA regulation (i.e., POTWs without a
permit-by-rule) are not explicitly prohibited from EPA
indemnification authority under Section 119, the Agency has
««™rmin?? that an extensi°n °f indemnification authority to any
POTW would not be consistent with Congressional intent in Section
119. Therefore, EPA will not provide indemnification to POTWs
under Section 119 authority.
This memorandum describes the current Federal
indemnification provisions for response action contractors
working in the Superfund program as provided in Section 119 of
SARA. The statute gives the Federal government the discretionary
authority to indemnify RACs for liability arising out of
negligence. Acts of gross negligence and willful misconduct are
expressly excluded from the indemnity provision. The Section 119
indemnity provision does not preempt the rights of States to
enforce a standard of strict liability.
Federal indemnification is meant to be an interim vehicle
which will keep the Superfund program operative until the
insurance industry returns to the market. It is not intended to
create a Federally intrusive program that will interfere with
private sector efforts to develop RAC liability insurance
coverage.
-------
13 OSWER Directive 9835.5
Please direct all questions and comments to Robert Mason at
FTS 382-4015 or Tom Gillis at FTS 382-4524
Attachments
A. Model Indemnification Agreements
B. CERCLA (as amended) Section 119
cc: Administrator
Deputy Administrator
General Counsel
Regional Grants Office, Regions I-x
Regional Financial Management Office, Regions I-X
Regional Superfund Branch Chiefs, Regions I-X
-------
Attachment A
MODEL INDEMNIFICATION AGREEMENTS
-------
This attachment contains model EPA indemnification
agreements *«f:U8e by EPA, States, and PRPs when RACs seek
indemnification from EPA. Any deviation from the model language
m"st be approved by the EPA Indemnification Task Force. Four
models are attached:
I. Model EPA/RAC Indemnification Agreement
II. Model State Cooperative Agreement Indemnification Special
Condition
III. Model EPA/RAC Indemnification Agreement for RACs under
Contract with PRPs
IV. Model EPA/ SITES Program Technology Vendor Indemnification
Agreement
-------
MODEL EPA/RAC INDEMNIFICATION AGREEMENT
-------
H. Insurance — Liability to Third Persons —
Commercial Organizations
(EPAAR 1552". 228-70) (APR 1984) (with deviation)
(a) This Clause H will be modified by the
mutual agreement of the parties hereto within 180 days of the
EPA's promulgation of final guidelines for carrying out the
provisions of Section 119 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended
(CERCLA).
(b) The Contractor shall procure and maintain such
insurance as is required by law or regulation, including that
required by FAR Part 28, in effect as of the date of execution of
this contract, and any such insurance as the Contracting officer
may, from time to time, require with respect to performance of
this contract.
^ *(f! *fc a minimum' the Contractor s,hall procure and maintain
the following types of insurance.
1
(1) Workmen's compensation and occupational disease
insurance in amounts to satisfy State law;
(2) Employer's liability insurance in the minimum amount of
$100,000 per occurrence;
(3) Comprehensive general liability insurance for bodily
injury, death or loss of or damage to property of third persons
in the minimum amount of $1,000,000 per occurrence;
(4) When vessels are used in the performance of the
contract, vessel collision liability and indemnity liability
insurance in such amounts as the Contracting Officer may require
or approve: provided, that the Contractor may, with the approval
of the Contracting Officer, maintain a self-insurance program.
All insurance required pursuant to the provisions of this
paragraph shall be in such form and for such periods of time as
the Contracting Officer may, from time to time, require or
approve and with insurers approved by the Contracting Officer.
(d) The Contractor further agrees that it will make
diligent efforts throughout contract performance in accordance
with EPA guidelines to obtain adequate pollution liability
insurance. ,
(e) The Contractor agrees, to the extent and in the manner
required by the Contracting Officer, to submit for the approval
of the Contracting Officer all insurance maintained by the
Contractor in connection with the performance of this contract
and for which the Contractor seeks reimbursement hereunder. The
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Contractor's submission shall include documentation demonstrating
its diligent efforts to obtain pollution liability insurance.
(f) The Contractor shall be reimbursed, for the portion
allocable to this contract, the reasonable cost of insurance
(including reserves for self-insurance) as required or approved
pursuant to the provisions of this contract clause.
(g)(l) Pursuant to Section 119 of CERCLA, the EPA will hold
harmless and indemnify the Contractor against any liability
(including the expenses of litigation or settlement) for
negligence arising out of the Contractor's performance under this
contract in carrying out response action activities. Such
indemnification shall apply only to liability not compensated by
insurance or otherwise and shall apply only to liability which
results from a release of any hazardous substance or pollutant or
contaminant if such release arises out of the response action
activities of this contract. Further, any liability within the
deductible amounts of the Contractor's insurance Will not be
covered under this contract clause H !.
(2) For purposes of this clause (g), if the Contracting
Officer has determined that the insurance identified in paragraph
(d) is not available at a reasonable cost, the Government will
hold harmless and indemnify the Contractor for liability to the
extent such liability exceeds $100,000.00.
(3) The Contractor shall not be reimbursed for liabilities
as defined in (g) (including the expenses of litigation or
settlement) that were caused by the conduct of the Contractor
(including any conduct of its directors, managers, staff,
representatives or employees) which was grossly negligent,
constituted intentional misconduct, or demonstrated a lack of
good faith. Further, the Contractor shall not be indemnified for
liability arising under strict tort liability, or any other basis
of liability other than negligence.
(h) The Government may discharge its liability under this
contract clause by making payments directly to the Contractor or
directly to parties to whom the Contractor may be liable.
(i) With prior written approval of the Contracting Officer,
the Contractor may include in any subcontract under this contract
the same provisions in this clause whereby the Contractor shall
indemnify the subcontractor. Such a subcontract shall provide
the same rights and duties and the same provisions for notice,
furnishings of evidence or proof, and the like, between the
Contractor and the subcontractor as are established by this
clause. Similar indemnification may be provided for
subcontractors at any time upon the same terms and conditions.
Subcontracts providing for indemnification within the purview of
this contract clause shall provide for prompt notification to the
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Contractor which is covered by this contract clause, and shall
entitle the Government, at its election, to control, or assist in
the settlement or defense of. any such claim or action. The,
Government will indemnify the Contractor with respect to his
obligation to subcontractors under such subcontract provisions
The Government may discharge its obligations under this paragraph
by making payments directly to subcontractors or to parties to
whom the subcontractors may be liable.
(j) If insurance coverage required or approved by the
Contracting Officer is reduced without the Contracting Officer's
approval, the liability of the Government under this contract
clause will not be increased by reason of such reduction.
(k) The Contractor shall:
(1) Promptly notify the Contracting Officer of any claim or
action against the Contractor or any subcontractor which
reasonably may be expected to involve indemnification under this
contract clause;
(2) Furnish evidence or proof of any claim covered by this
contract clause in the manner and form required by the
Government; and
(3) Immediately furnish the Government copies of all
pertinent papers received by the Contractor. The Government may
direct, control, or assist the settlement or defense of any such
claim or action. The Contractor shall comply with the
Government's directions, and execute any authorizations required
in regard to such settlement or defense.
(1) Reimbursement for any liabilities under this contract
clause will not exceed appropriations available from CERCLA's
Hazardous Substance Superfund (except to the extent that Congress
may make appropriations to specifically fund any deficiencies) at
the time .such liabilities are represented by final judgments or
by settlements approved in writing by the Government.
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II
MODEL STATE COOPERATIVE AGREEMENT
INDEMNIFICATION SPECIAL CONDITION
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EPA INDEMNIFICATION
EPA will provide indemnification pursuant to Section 119 of,
CERCLA, as amended, to contractors carrying out response actions
under this agreement provided that the State certifies to EPA
that:
1. The contracts awarded under this agreement are defined in
section 119(e) of CERCLA, as amended;'
2. The contracts awarded under this agreement include the
following clause that exclusively governs EPA
indemnification:
(see attached clause)
3. At the end of each calendar year and at the end of each
project period, all statements and materials related to
pollution liability insurance submitted by the Contractors
to the State Contracting Officer will be transferred to EPA.
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Attachment
(1) Pursuant to Section 119 of CERCLA, the EPA will hold
harmless and indemnify the Contractor against any third party
liability (including the expenses of litigation or settlement)
for negligence arising out of the Contractor's performance under
this contract in carrying out response action activities. Such
indemnification shall apply only to liability not compensated by
insurance or otherwise and shall apply only to liability which
results from a release of any hazardous substance or pollutant or
contaminant if such release arises out of the response action
activities of this contract. Further, any liability within the
deductible amounts of the Contractor's insurance required by this
contract will not be covered by this clause. This Clause will be
modified by the mutual agreement of the parties hereto within 180
days of the EPA's promulgation of final guidelines for carrying
out the provisions of Section 119 (CERCLA).
(A) The Contractor shall submit to the State Contracting
Officer within 30 days of award a written statement
from an insurance broker stating that the Contractor
has attempted to secure pollution liability coverage
from insurance carriers in the past six months;
(B) if the Contractor has secured pollution liability
coverage, it must submit a copy of the policy and
declaration page to the State Contracting Officer; and
(C) Every twelve months, or as directed by the EPA, the
Contractor shall submit to the State Contracting
Officer written documentation of the additional efforts
made by the contractor to secure pollution liability
insurance coverage, including:
o Copies of applications to three known underwriters
of pollution liability insurance;
o A status report of any pollution liability
insurance obtained, to include type of coverage,
premium charged, limits of coverage, deductibles
and major terms and conditions of coverage (e.g.,
a copy of the actual declaration page could be
provided in lieu of a status report);
o if pollution liability coverage was offered by an
underwriter, but not accepted by the RAC/ a report
on the insurance offered (such as the "status
report" required above), and a summary of the
reasons why such coverage was not accepted;
o If pollution liability coverage was rejected by
the underwriter, a summary of the reasons why such
coverage was denied; and
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o A status report on what alternative pollution
liability risk transfer mechanisms the contractor
has pursued other than commercial pollution
liability insurance (e.g., captives, letters of
credit, group purchasing of insurance, etc.).
(2) For purposes of this clause, the EPA will hold harmless
and indemnify the Contractor for liability described herein to
the extent such liability exceeds $100,000.00.
(3) The Contractor shall not be reimbursed for liabilities
as defined herein (including the expenses of litigation or
settlement) that were caused by the conduct of the Contractor
(including any conduct of its directors, managers, staff,
representatives or employees) which was grossly negligent,
constituted intentional misconduct, or demonstrated a lack of
good faith. Further, the Contractor shall not be indemnified for
liability arising under strict tort liability, or any other basis
of liability other than negligence.
(4) The EPA may discharge its liability under this contract
clause by making payments directly to the Contractor or directly
to parties to whom the Contractor may be liable.
(5) With prior written approval of the State Contracting
Officer, the Contractor may include in any subcontract under this
contract the same provisions in this clause whereby the
Contractor shall indemnify the subcontractor. Such a subcontract
shall provide the same rights and duties and the same provisions
for notice, furnishings of evidence or proof, and the like,
between the Contractor and the subcontractor as are established
by this clause.. Similar indemnification may be provided for
subcontractors at any time upon the same terms and conditions.
Subcontracts providing for indemnification within the purview of
this contract clause shall provide for prompt notification to the
Contractor which is covered by this contract clause, and shall
entitle the EPA, at its election, to control, or assist in the
settlement or defense of any such claim or action. The EPA will
indemnify the Contractor with respect to his obligation to
subcontractors under such subcontract provisions. The EPA may
discharge its obligations under this paragraph by making payments
directly to subcontractors or to parties to whom the
subcontractors may be liable.
(6) If insurance coverage required or approved by the State
Contracting Officer is reduced without the State Contracting
Officer's approval, the liability of the EPA under this contract
clause will not be increased by reason of such reduction.
(7) The Contractor shall:
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o Promptly notify the Assistant Administrator,
OSWER, EPA of any claim or action against the
Contractor or. any subcontractor which reasonably
may be expected to involve indemnification under
this contract clause.
o Furnish evidence or proof of any claim covered by
this contract clause in the manner and form
required by the EPA.
o Immediately furnish the EPA copies of all
pertinent papers received by the Contractor. The
EPA may direct, control, or assist the settlement
or defense of any such claim or action. The
Contractor shall comply with the EPA's directions,
and execute any authorizations required in regard
to such settlement or, defense.
o Submit any disagreements concerning EPA
indemnification to the Assistant Administrator,
OSWER, EPA for resolution. Decision iby the
Assistant Administrator will constitute final
Agency action.
(8) Reimbursement for any liabilities under this contract
clause is available exclusively from the EPA and will not exceed
appropriations available from CERCLA's Hazardous Substance
Superfund (except to the extent that Congress may make
appropriations to specifically fund any deficiencies) at the time
such liabilities are represented by final judgement or'by
settlements approved in writing by the EPA.
(9) Nothing in this clause shall be construed as an
indemnification agreement between the State and the Contractor.
i
(10) Nothing in this contract shall be construed to create,
either expressly or by implication, any contractual relationship
between EPA and the Contractor except as specifically provided in
this clause. EPA is not authorized to represent or act on behalf
of the State in any manner relating to this contract and has no
responsibility with regard to the mutual obligations of the State
and the Contractor as provided herein.
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Ill
MODEL EPA/RAC INDEMNIFICATION AGREEMENT
FOR RACS UNDER CONTRACT WITH PRPS
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MODEL CLAUSES FOR PRP CONTRACTS
Sec* Pollution Liability Insurance and Contractor
Indemnification
A. Pollution Liability Insurance
(1) The Contractor shall obtain such pollution liability
insurance (hereinafter insurance) as the EPA determines is
available at a fair and reasonable price at the time of contract
award. The cost of such insurance is an allowable contract cost.
(2) The Contractor shall report to EPA on its efforts to
obtain pollution liability insurance.
(A) Within 30 days of signing this agreement, the
Contractor shall submit to the EPA a written statement
from an insurance broker stating that the Contractor
has attempted to secure pollution liability coverage
from insurance carriers in the past six months;
(B) If the Contractor has secured pollution liability
coverage, it must submit a copy of the policy and
declaration page to EPA; and
(C) Every twelve months, or as directed by the EPA, the
Contractor shall submit to the EPA written
documentation of the additional efforts made by the
. contractor to secure pollution liability insurance
coverage including:
o Copies of applications to three known underwriters
of pollution liability insurance;
o A status report! of any pollution liability
insurance obtained, to include type of coverage,
premium charged, limits of coverage, deductibles
and major terms and conditions of coverage (e.g.,
a copy of the actual declaration page could be
provided in lieu of a status report);
o If pollution liability coverage was offered by an
underwriter, but not accepted by the RAC, a report
on the insurance offered (such as the "status
report" required above), and a summary of the
reasons why such coverage was not accepted;
o If pollution liability coverage was rejected by
the underwriter, a summary of the reasons why such
coverage was denied; and
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o A status report on what alternative pollution
liability risk transfer mechanisms the contractor
has pursued other than commercial pollution
liability insurance (e.g., captives, letters'of
credit, group purchasing of insurance, etc.).
(3) If, during the period of this contract, EPA determines
that insurance or additional insurance is available, the
contractor shall obtain such insurance.
B. PRP Indemnification
[The following are minimum clauses. PRPs may include
additional, non-conflicting terms.]
(1) The PRPs will hold harmless and indemnify the Contractor
against any third party liability .(including the expense of
litigation or settlement) for negligence arising out of the
Contractor's performance of this contract in carrying out
response action activities. Such indemnification shall apply
only to liability which results from a release of a hazardous
substance, pollutant, or contaminant if such release arises out
of the response action activities in this contract.
Indemnification under this paragraph will apply only to liability
not compensated by insurance, not within the deductible amounts
of the Contractor's insurance in paragraph A, above, nor within
the deductible in paragraph D, below. Indemnification provided
under this paragraph shall not exceed $ (amount
determined by EPA).
(2) Any liability subject to indemnification shall be
presented first under this paragraph.
(3) The PRPs are individually and collectively responsible
for the indemnification ur.der this paragraph, unless otherwise
specifically provided within.
(4) if the PRPS fail to satisfy the indemnification claim
within 60 days of its presentation, the Contractor will notify
the EPA of such failure.
C. EPA Indemnification
(1) Pursuant to Section 119 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980,
as amended (CERCLA), the EPA will hold harmless and indemnify the
Contractor against any third party liability (including the
expenses of litigation or settlement) for negligence arising out
of the Contractor's performance under this contract in carrying
-------
out response action activities. Such indemnification shall apply
only to liability not compensated by insurance, indemnification
provided in accordance with .paragraph B, above, or otherwise and
shall apply only to liability which results from a release of any
hazardous substance or pollutant or contaminant if such release
arises out of the response action activities of this contract.
Further, any liability within the deductible amounts of the
Contractor's insurance in paragraph A, above, or the deductible
in paragraph D, below, will not be covered by this paragraph.
(2) This paragraph will be modified by the mutual agreement
of the parties hereto within 180 days of the EPA's promulgation
of final guidelines for carrying out the provisions of
Section 119 of CERCLA.
(3) The Contractor shall not be reimbursed for liabilities
as defined herein (including the expenses of litigation or
settlement) that were caused by the conduct of the Contractor
(including any conduct of its directors, managers, staff,
representatives or employees) which was grossly negligent,
constituted intentional misconduct, or demonstrated a lack of
good faith. Further, the Contractor shall not be indemnified for
liability arising under strict tort liability, or any other basis
of liability other than negligence.
(4) The EPA may discharge its liability under this contract
paragraph by making payments directly to the Contractor or
directly to parties to whom the Contractor may be liable.
(5) With prior written approval of the EPA, the Contractor
may include in any subcontract under this contract the same
provisions in this clause whereby the Contractor shall indemnify
the subcontractor. Such a subcontract shall provide the same
rights and duties and the same provisions for notice, furnishings
of evidence or proof, and the like, between the Contractor and
the subcontractor as are established by this paragraph. Similar
indemnification may be provided for subcontractors at any time
upon the same terms and conditions. Subcontracts providing for
indemnification within the purview of this paragraph shall
provide for prompt notification to the Contractor which is
covered by this paragraph, and shall entitle the EPA, at its
election, to control, or assist in the settlement or defense of
any such claim or action. The EPA will indemnify the Contractor
with respect to his obligation to subcontractors under such
subcontract provisions. The EPA may discharge its obligations
under this paragraph by making payments directly to
subcontractors or to parties to whom the subcontractors may be
liable.
(6) If insurance coverage required in paragraph A, above,
is reduced without the EPA's approval, the liability of the EPA
-------
under this paragraph will not be increased by reason of such
reduction.
(7) The Contractor shall:
o Promptly notify the Assistant Administrator,
OSWER, EPA of any claim or action against the
, Contractor or any subcontractor which reasonably
'may be expected to involve indemnification under
this paragraph.
o Furnish evidence or proof of any claim covered by
this paragraph in the manner and form required by
the EPA.
o Immediately furnish the EPA copies of all
pertinent papers received by the Contractor. The
EPA may direct, control, or assist the settlement
or defense of any such claim or action. The
Contractor shall comply with the EPA's directions,
and execute any authorizations required in regard
to such settlement or defense.
.o Submit any disagreements concerning EPA
indemnification to the Assistant Administrator,
OSWER, EPA for resolution. Decision by the
Assistant Administrator will constitute final
Agency action.
(8) The.Contractor may present a claim for indemnification
under this paragraph only after compliance with the provisions in
paragraphs B, above, and C, below.
(9) If the PRPs fail to indemnify the Contractor in the
;amount provided in paragraph B, above, no indemnification for
that amount will be paid under this paragraph until the
Contractor demonstrates to EPA's satisfaction that it has
exhausted all administrative and judicial claims for
indemnification under paragraph B, above, and any common law
claims for indemnification that it has against the PRPs.
Evidence of exhaustion of claims may include a judicial order
dismissing the Contractor's claims, documentation of the
Contractor's unsuccessful efforts to enforce a judgement against
the PRPs, or documentation of the Contractor's unsuccessful
claims in a bankruptcy proceeding involving the PRPs.
(10) Reimbursement for any liabilities under this paragraph
will not exceed appropriations available from CERCLA's Hazardous
Substance Superfund (except to the extent that Congress may make
appropriations- to specifically fund any deficiencies) at the time
such liabilities are represented by final judgement or by
settlements approved in writing by the EPA.
-------
(11) Nothing in this contract shall be construed to create,
either expressly or by implication, any contractual relationship
between EPA and the Contractor except as specifically provided in
this section. EPA is not authorized to represent or act on
behalf of the (PRPs) in any manner relating to this contract and
has no responsibility with regard to the mutual obligations of
the (PRPs) and the Contractor as provided herein.
D. Contractor Deductible
The Contractor shall pay the first $100,000.00 of any
liability subject to indemnification under this contract before
seeking indemnification under paragraphs B and C, above.
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IV
MODEL EPA/ SITES PROGRAM TECHNOLOGY VENDOR
INDEMNIFICATION AGREEMENT
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EPA Indemnification
(1) Pursuant to Section 119 of CERCLA, the EPA will hold
harmless and indemnify the Recipient against any liability
(including the expenses of litigation or settlement) for
negligence arising out of the Recipient's performance under this
cooperative agreement in carrying out response action activities
through the Superfund Innovative Technology Evaluation program
under Section 311(b) of CERCLA. Such indemnification shall apply
only to liability not compensated by insurance or otherwise and
shall apply only to liability which results from a release of any
hazardous substance or pollutant or contaminant if such release
arises out of the response action activities of this cooperative
agreement. Further, any liability within the deductible amounts
of the Recipient's insurance will not be covered under this
clause, if the recipient has secured pollution liability
coverage, it must submit a copy of the policy and the declaration
page to EPA.
(2) Every twelve months, or as directed by the EPA, the
Recipient shall submit to the Contracting Officer written
documentation of the additional efforts made by the recipient to
secure pollution liability insurance coverage, including:
o Copies of applications to three known underwriters
of pollution liability insurance;
o A status report of any pollution liability
insurance obtained, to include type of coverage,
premium charged, limits of coverage, deductibles
and major terms and conditions of coverage (e.g.,
a copy of the actual declaration page could be
provided in lieu of a status report);
o If pollution liability coverage was rejected by
the underwriter, a summary of the reasons why such
coverage was denied; and
(3) For purposes of this clause, the Government will hold
harmless and indemnify the Recipient for liability to the extent
such liability exceeds $100,000.00.
(4) The Recipient shall not be reimbursed for liabilities
as defined herein (including the expenses of litigation -or
settlement) that were caused by the conduct of the Recipient
(including any conduct of its directors, managers, staff,
representatives or employees) which was grossly negligent,
constituted intentional misconduct, or demonstrated a lack of
good faith. Further, the Recipient shall not be indemnified for
liability arising under strict tort liability, or any other basis
of liability other than negligence.
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(5) The Government may discharge its liability under this
cooperative agreement clause by making payments directly to- the
Recipient or directly to parties to whom the Recipient may be
liable.
(6) With prior written approval of the Contracting Officer,
the Recipient may include in any subcontract under this
cooperative agreement the same provisions in this clause whereby
the Recipient shall indemnify the subcontractor. Such a
subcontract shall provide the same rights and duties and the same
provisions for notice between the Recipient and the subcontractor
as are established by this clause. Similar indemnification may
be provided for subcontractors at any time upon the same terms
and conditions. Subcontracts providing for indemnification
within the purview of this cooperative agreement clause shall
provide for prompt notification to the Recipient which is covered
by this cooperative agreement clause, and shall entitle the
Government, at its election, to control, or assist in the
settlement or defense of any such claim or action. The
Government will indemnify the Recipient with respect to his
obligation to subcontractors under such subcontract provisions.'
The Government may discharge its obligations under this paragraph
by making payments directly to subcontractors or to parties to
whom the subcontractors may be liable.
(7) If insurance coverage required or approved by the
Contracting Officer is reduced without the Contracting Officer's
approval, the liability of the Government under this cooperative
agreement clause will not be increased by reason of such
reduction.
(8) The Recipient shall:
(a) Promptly notify the Assistant Administrator, OSWER, EPA
of any claim or action against th=e Recipient or any subcontractor
which reasonably may be expected to involve indemnification under
this cooperative agreement clause;
(b) Furnish evidence or proof of any claim covered by this
cooperative agreement clause in the manner and form required by
the Government;
(c) Immediately furnish the Government copies of all
pertinent papers received by the Recipient. The Government may
direct, control, or assist the settlement or defense of any such
claim or action. The Recipient shall comply with the
Government's directions, and execute any authorizations required
in regard to such settlement or defense; and
(d) Submit any disagreements concerning EPA indemnification
to the Assistant Administrator, OSWER, EPA for resolution.
-------
Decision by tfi« Assistant Administrator will constitute final
Agency action.
(9) Reimbursement for any liabilities under this
cooperative agreement clause will not exceed appropriations
available from CERCLA's Hazardous Substance Superfund (except to
the extent that Congress may make appropriations to specifically
fund any deficiencies) at the time such liabilities are
represented by final judgement or by settlements approved in
writing by the Government.
i
(10) This ciause will be modified by the mutual agreement
of the parties hereto within 180 days of the EPA's promulgation
of final guidelines for carrying out the provisions of Section
119 of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended (CERCLA1).
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ATTACHMENT B
CERCLA (AS AMENDED)
SECTION 119
-------
74
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^c^ INDEMNIFICATION —
76
o o «!pon« acton camrf oul
MJfAeAcmrfcnt
ffi/ any Federal agency;
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repealed,
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-------
76
(C)^CONTRACTS WITH POTENTIALLY MSFOMSMU FAM-
(i) DECISION TO INDEMNIFY.—In deciding whether to
enter into an indemnification agreement with a re-
sponse action contractor carrying out a written contract
lne vj*«l«i< shall determine an amount which tneoo-
£"fj«//>J^Ponsible party is able to indemnify the con-
tractor. The President may enter into such an indemni-
fication agreement only if the President determines
that such amount of indemnification is inadequate to
cover any reasonable potential liability ofthTcontrac-
^^""?f •"' of the «w»*W"-'« negligence in per-
forming the contract or agreement with such party. %he
President shall make the determinations in the preced-
ing sentences (with respect to the amount and thTade-
quacy of the amount) taking into account the total net
assets and resources of potentially responsible parties
with respect to the facility at the HrnTof such^dSenni-
nations.
(u) CoNDiTioNa.-The President may pay a claim
i - "•? indemnification agreement referred to in
claused) for the amount determined under clause (i)
only if the contractor has exhausted all administrative.
judicial, and common law claims for indemnification
against all potentially responsible parties participating
in the clean-up of the facility with respect to the liabil-
ity of the contractor arising out of the contractor's neg-
ligence m performing the contract or agreement with
such party. Such indemnification agreement shall re-
quire such contractor to pay any deductible established
under subparagraph (B) before the contractor may re-
cover any amount from the potentially responsible
a facility
J^—-r^Li—j i *""••• rrumif MJtopam nci may oe in-
demnified under this subsection with respect to such facili-
(E) PERSONS RETAINED o* HIRED.—A person retained or
by a person described in subsection (eXSXB) shall be
•'- f" indemnification under this subsection only if
ml Unprttlfvillv nwtrtrm^mm gf the President;
(B) any Federal agency;
section
aeeord"*
-------
d
aures
in accordance with title IX of the Federal Property and
" Aetof t949 ** Fedfnl "tetlon iproce-
contract* negotiated by all Federal
, n -"W«* ** Act. toehZroZ
be followed by response action contractor, and autom-
atic IM FEDERAL FACIUTIB&
(a) APPLICATION or ACT TO FSDKXAL OonmNumnr.—
ifA^lKrff dy*u?n»nl' a9auV' a** instrumental-
of the United States (Including the executive, legislative.
1C
'SSftbSh' rocedirall^and'"""""'~**»l'*r"*n*''°"tl?"™
mento/ entity including liability under section 107 of thu Act.
Nothing in this section shall be construed to affect the liability
of any person or entity under sections 106 and 107. "am"ty
Iff APPLICATION or KKQuiRsuum TO FMDMMAL rAciunss.—
Allguidelines, rules, regulations, and criteria which are appli-
facilitus at which hazardous substances are located, applicable
to evaluations of such facilities under the NdtionalCbntingency
Plan, applicable to inclusion on the National Priorities LuLor
applicable to remedial actions at such facilities shall also be
applicable to facilities which are owned or operated by a £
partment. agency, or instrumentality of the United States in the
same manner and to the extent as such guidelines, rules, refu-
tations, and catena are applicable to other fitcUitiesTNode-
P^tment, agency, or instrumentality of the United States may
adopt or utilize any such guidelines, rules, regulations, or critl
rut which are inconsistent with the guidelines, rules, regula-
tuns. and criteria established by the Adminu^torunderthis
(S) ExcBPTiONa.—This subsection shall not apply to the extent
otherwise provUed in this section with resfctto applicable
time periods. This subsection shall also notapply to any re-
^TT1"1*? .7- ttng toLoolutinA insurance, or financial respon-
sibility Nothing in this Act shall be construed to require a
State to comply with section 104(0(3) in the case of a facility
W STATS LAWA-State laws concerning removal and remedi-
al action, including State laws regarding enforcement. lAa//
«»»!«toremoval and-remedial action at facilities owned or op-
- department, agency, or instrumentality of the
i when such facilities are not included on the Na-
' List. The preceding sentence shall not apply to
*..*! ,„ . JL >-a£.- lPui!i. apply on> •tandard or require-
ment to such facilities which is more stringent than the stand-
ards and requirements applicable to facilities which are not
owned or operated by any such department, agency, or instru-
mentality.
«S^i»±2SiSS7ifiSWSWft
•• » Ikt informal^
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OCT I 6 1957
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Key RCRA/CERCL& Decisions in 1st Quarter FY 88
FROM: J. Winston Porter
Assistant Administrator
TO: Regional Administrators
Regions I - X
In FY 1987, we began a process to provide you with key RCRA
and CERCLA decisions due in each upcoming quarter. This pro-
active approach is intended to keep you apprised of some of the
significant commitments in your respective Region at the start of
each quarter.
I want to continue this practice and invite your personal
attention to these significant activities. This particular memo
discusses RCRA permits, closure plans, and RCRA significant npn-
compliers; Superfund records of decision (RODs), remedial design
and construction starts, settlements, Section 107 referrals, and
expected deletions from the National Priorities List (NPL).
Finally, I have provided some editorial remarks in some
sections. I would, of course, appreciate your thoughts on any
issues you wish to discuss.
RCRA PERMITS AND CLOSURE PLANS
In FY 88 we are facing a very ambitious schedule for land'
disposal permits as we approach the November 1988 statutory
deadline. In addition, increasing attention must be paid to
incinerator permits in anticipation of the November 1989 stat-
utory deadline. Summarized below is the overall permitting
picture for FY 88. The specific activities due in the first
quarter of FY 88 are detailed in Table 1.
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- 2 -
RCRA FY 88 Permitting Program
2Q 3Q 4Q Totals
Land Disposal Permits 4 15 33 68 120
Incinerator Permits 1 5 14 12 32
Closure Plan Approvals
Land Disposal 25 40 56 63 184
Incinerator 0 1124
The above Table indicates a very heavy end-of-year workload. I
want to encourage you to accelerate as many items as you can to
earlier quarters, if possible. I appreciate your excellent work
on permits in FY 87 and look forward to a good effort this year.
RCRA SIGNIFICANT NON-COMPLIERS (SNCs)
We continue to see some improvement in addressing RCRA
Significant Non-Compliers (SNCs) with formal enforcement within
the prescribed 135-day period. However, there still are many
SNCs which have remained unaddressed for too long. Also, our
preliminary indications are that virtually all FY 87 Base
Operating Year (BOY) SNCs have been addressed with formal enforce-
ment action and/or returned to full physical compliance. I
appreciate your efforts and trust that you will continue to give
high priority to full timely and appropriate enforcement in FY 88.
Me will transmit a list of BOY SNCs as soon as they are available.
SUPERFUND RECORDS OF DECISION
This past year was particularly difficult because of the
number of RODs involved, and the need to develop significant
interpretations for the new Superfund law. Despite that, the
Regions were able to sign 59 out of 76 RODs that were due in FY
87. All Regions are to be congratulated for their efforts, partic-
ularly over the last several months, to complete these Records of
Decision.
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- 3 -
We have a large challenge ahead. To insure future RD/RA
starts, we must keep the pipeline full by starting and completing
the RODs and RI/FSs scheduled for FY 88. The Superfund Records
of Decision which are scheduled for the first quarter in FY 88
are listed in Table 2. This list includes the FY 87 RODs that
were not completed last year. I urge you to pay close attention
to tne management of these projects so that these RODs, and those
scheduled for subsequent quarters, are completed on time.
One of my highest priorities is to improve the schedule and
cost efficiency of the RI/FS process, while maintaining high
quality. Our goal is to reduce the project planning phase of the
RI/FS from about 6 months to less than 3 months, and the full
RI/FS from 25 months to 18 months.
As indicated to you previously, I am available to consult
with you on any particular ROD. Lee Thomas has also asked me to
keep him informed of particularly complex or expensive ROD
decisions.
REMEDIAL DESIGN AND CONSTRUCTION STARTS
A major remedial objective under SARA will be to achieve the
mandated 175 Remedial Action (RA) starts by October 1989. The
"175 Program" is being developed jointly by OERR and OWPE and
includes the development of an effective management strategy for
accomplishing the goals as well as establishing targets and
schedules for the activities. The strategy will emphasize good
planning projection, effective project management, and selection
of clean-up approaches that are consistent with the SARA "175"
requirement. The FY 87 efforts on RA starts were generally quite
good, which allows me to be optimistic that the "175 Program" will
be successful.
We must also keep focused on Remedial Design (RD) starts in
order to keep the pipeline flowing into RA starts. Based upon
past design experience, RDs must start by the 2nd quarter of FY 88
if those sites are expected to have an RA start in time to meet
the "175" timetable. Tables 3 and 4 list the 1st quarter FY 88 RD
and RA starts, respectively.
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- 4 -
SUPERFUND SETTLEMENTS
While we fell short of the PRP Remedial Design SCAP target
in FY 87 (19 out of 23 RD starts), the missed target seems mostly
due to delays in remedy selection, rather than a low settlement
ratio. However, more aggressive strategies for meeting deadlines
are necessary. I would appreciate your making effective use of
our new tools, particularly mixed funding, in maximizing the
number of settlements.
There will be a heavy work load in FY 88. Regions have
committed to conclude RD/RA negotiations at 142 sites. They are
also committed to 54 PRP RD starts through consent decree settle-
ments, in the first quarter, there are 27 sites targeted for
RD/RA negotiation completions with 10 PRP RD starts scheduled.
in the September 30, 1987 memorandum entitled "RD/RA Negotia-
tions Tracking", we requested that you identify the negotiation
deadlines anticipated in FY 88 and outline the enforcement strategy
at each of these sites by November 2. Please reconcile the sites
listed in Table 5 (attached) with your response to that memorandum.
we will manage our negotiations tracking system based on your
response. Regions are reminded that the "actual date" that negotia-
tions are scheduled to conclude is to be put into the integrated
SCAP at least one quarter prior to their scheduled conclusion.
Further, Regions have not uniformly handled negotiation
extensions in accordance with guidance. Regional Administrators
may qrant a 30-day extension. However, beyond that time, if the
signed Consent Decree has not been referred to Headquarters, the
Regional Administrator should directly seek any further extension
from me.
SUPERFUND SECTION 107 REFERRALS
In FY 1988, the cost recovery program will focus on addressing
the backlog of sites that are ripe for recovery and on developing
and implementing strategies for quicker case resolution, Deluding
administrative procedures, alternate dispute resolution and arbi-
tration. To improve the cost recovery process, the following
strategies are suggested:
- using the SCAP to identify cost recovery candidates;
- Starting cost documentation and cost recovery actions earlier
to avoid statute of limitations problems;
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- 5 -
- Beginning settlement negotiations soon after demand letters are
sent for priority candidates and initiate a management tracking
system;
- Selecting cost recovery referral/settlement candidates based
on a priority scheme (e.g., large dollar value, remedial actions,
RI/FS) ; and,
- Develop a system to address the identification/resolution/
collection of Agency oversight costs at PRP response actions.
Preliminary Section 107 referral targets were increased over
original estimates to reflect the Enforcement Program's renewed
emphasis on recovering past Superfund expenditures at sites. The
FY'l988 Regional targets for Section 107 Referrals were based on
the number of sites in a Region facing statute of limitation for
cost recovery. Case selection should balance the need to address
sites with potential statute of limitations problems against those
with the greatest potential return to the Trust Fund,( especially
remedial action projects. Finally, Regions are encouraged to
settle 107 actions administratively (rather than through a
referral) for sites with less than $200,000 in expenditures.
Table 6 lists the first quarter FY 88 planned Section 107
referrals.
DELETON AND SITE COMPLETION CANDIDATES
One of the most important "bottom-lines" for success in the
Superfund Program is to delete sites from the NPL when the RAs are
successfully completed. Also important is the completion of site
work where longer term operation and maintenance will be required.
We were able to get into the Federal Register in September 1987 a .
deletion notice on three sites. .1 have instructed_JbJae^S.upex£ujld/
ho .-,/M-V Mi4-v> yn» <-n increase the. .^PJ1_dfiLLeJtJj>lu.gjQa.1 . ft) ,,aa_ [
as 20 sites_thls_year.._This would be a major challenge for
all ot us, but I must stress again the importance of this very
visible measure of Superfund success. Table 7 lists all of the
currently planned FY 1988 NPL deletions and site completions.
One way we might expedite site cleanups, at NPL sites is to ,
,^--. 1 i t i es undez^
At some sites, it may be cost effective to conduct" a I
complete site cleanup, or significant operable unit, using removal
approaches and program procedures. In using these expedited methods
we should continue to consider cost sharing from States where
appropriate. I ask that your removal and remedial program managers
work closely together to identify sites where innovative removal
approaches might be feasible.
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- 6 -
In closing, let me express again my appreciation for the hard
work and positive accomplishments of the regional staffs. I know
you share my concern that we produce substantial results that are
commensurate with the large resources entrusted to both Headquarters
and Regional OSWER programs. Please let me know if there are any
issues you wish to discuss further.
Attachments
cc: Lee Thomas
Jim Barnes
Tom Adams
Frank Blake
OSWER Office Directors
Regional Waste Division Directors
Roger Marzulla, DOJ
Barry Johnson, ATSDR
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Table 1
LAND DISPOSAL PERMITS
FIRST QUARTER FY 1988
Region
!iv Morton Thiokol
V Wayne Disposal
IV Stauffer Chemical Co. (ICD Plant)
X Chem Security Systems, Inc.
FIRST QUARTER INCINERATOR PERMITS
III FMC Baltimore
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Table 2
SUPERFUND RECORDS OF DECISION (RODS)
FIRST QUARTER FY 1988
Region
I
II
III
IV
V
VI
VII
VIII
IX
Fund
Yaworski, CT *
York Oil, NY
American Thermostat, NY
Montclair, NJ
Glen Ridge, NJ
Nascolite, NY *
Fulton, NY *
Rocky Hill, NJ *
Pristine, OH
Belvidere, IL
United Scrap, OH
Cherokee County, KS
San Gabriel valley
Area 2, CA
Frontier Hard Chrome,
WA
Northside, WA
Enforcement
iCiba Geigy) , NJ (RP)*
Upjohn, PR (RP)*
G.E. Wiring, PR (RP)*
New Castle Steel, DE (RP)
Middletown Airfield, PA (RP)
Brown Wood Preserving, FL (RP)*
Coshocton Landfill, OH (RP)*
Waste Disposal, MN (RP)*
IWC, AR (FE)*
Shenandoah Stables, MO (FE)*
Syntex, MO (RP)*
California Gulch, CO (FE)*
Broderick Wood, CO (RP)*
Anaconda Smelter, MT*
(RP-Subsequent)
Comm. Bay/Nearshore, WA*
(RP - Subsequent)
* Slipped from FY 87
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Table 3
SUPERFUND REMEDIAL DESIGNS (FIRST-START)
FIRST QUARTER FY 1988
Region
I -----
II Montgomery Township, NJ
Clothier, NY
Volney Municipal, NY
Waldick Aerospace, NJ
III ----
IV Tower Chemical, FL
Geiger, SC
V Laskin Poplar, OH
Liquid Disposal, MI
Rose Township, MI
VI
Viii Marshall, CO
Central City, Clear Creek, CO
IX San Gabriel Valley, Area 2, CA
Operating Industries, CA
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Table 4
SUPERFUND REMEDIAL ACTION (FIRST-START)
FIRST QUARTER FY 1988
Region
I Nyanza Chemical, MA
Western Sand & Gravel, RI
II
III
XV Miami Drum, FL
Hollingsworth, FL
V
VI Geneva, TX
Odessa Chromium 12, TX
Odessa Chromium #1, TX
Vii
Viii
IX Del Norte,CA
X
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Table 5
SUPERFUND RD/RA NEGOTIATION COMPLETIONS
FIRST QUARTER FY 1988
Site
Comments
II
III
IV
VI
VII
VIII
IX
Industri-Plex
Ottati & Goss *
Waldick Aerospace
Diamond Alkali
Renora Inc.*
Vega Alta Public Supply Wells
volney Municipal Landfill
Tybouts Corner Landfill
Maryland Sand, Gravel & Stone*
Kane & Lombard St. Drums
Saltville Waste Disposal Ponds
Hipps Road*
Pioneer Sand*
Gold Coast*
Brown Wood Preservers*
Laskin/Poplar Oil Co.
Seymour Recycling*
Northside Sanitary Landfill
Marion (Bragg) Dump
Envirochem Corp.
Louisiana Army Ammo
Bayou Sorrell*
Mid-South Wood Products*
Conservation Chemical
Anaconda Co. Smelter*
Stringfellow
Litchfield Airport
NONE
RA extended to 10/30
12/31
12/31
12/31
12/31
12/31
12/31
11/15
AA extended to 10/15
12/15
12/16
11/30
RA extended to 10/31
12/31
12/31
10/15
12/31
12/31
12/10
12/31
12/31
RA extended to 10/31
RA extended to 10/31
10/16
12/21
12/23
12/31
*TARGETED FOR 1ST QUARTER PRP RD START
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Table 6
PLANNED SECTION 107 REFERRALS
FIRST QUARTER FY 1988
Region State Site Name
H NJ Burnt Fly Bog
NJ Chemical Control
NJ Caldwell Trucking
PA American Glycerine
PA Swissvale Auto Parts
FL Coleman-Evans
KY Lee's Lane
SC SCRDI Dixiana
CA CSI/Escondido
CA California Creative Dynamics
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Region
I
II
III
IV
V
VI
VII
I
VIII
IX
X
Table 7
NPL DELETIONS AND SITE COMPLETIONS
FY 1988
,4-
Site Name
NONE
G.E. MOREAU (SITE COMPLETION)
COOPER ROAD (NPL DELETION)
WESTLINE SITE (SITE COMPLETION)^ -2
TAYLOR BOROUGH DUMP (SITE COMPLETION)-'
MATTHEWS ELECTROPLATING (NPL DELETION)
PRESQUE ISLE (NPL DELETION)
ABM. WADE (NPL DELETION)
PEPPER STEEL & ALLOYS (SITE COMPLETION)
MONSANTO, AUGUSTA PLANT (NPL DELETION)
TRI-CITY OIL, FL (NPL DELETION)
VARSOL, FL (NPL DELETION)
MOWBRAY, AL; (NPL DELETION)
GALLAWAY PITS,,TN (NPL DELETION)
A.L. TAYLOR, KY (NPL DELETION)
NEWPORT DUMP, KY (NPL DELETION)
LEE'S LANE, KY (NPL DELETION)
NONE
HIGHLANDS ACID PIT (SITE COMPLETION) /
BIO-ECOLOGY SYSTEMS (SITE COMPLETION) vs.
TRIANGLE CHEMICAL (NPL DELETION)
LABOUNTY SITE (NPL DELETION)
FULBRIGHT (NPL DELETION)
NONE
JIBBOOM JUNKYARD (NPL DELETION)
UNITED CHROME PRODUCTS (SITE COMPLETION)
Quarter
2
4
3
4
2
2
3
3
2
1
1
1
1
1
1
1
1
4
2
3
4
2
4
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
OF PICE OF
OCT I 9 1987 SOLID WASTE ANO EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Interim Guidance on Notice Letters. Negotiations, and
;hange
FROM: J. Winst
Assistant Administrator
TO: Regional Administrators
I. INTRODUCTION
The Superfund Amendments and Reauthorization Act of 1986
(SARA). which amends the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), maintains the
importance of a strong Superfund enforcement program.1 In
particular, SARA emphasizes the importance of entering into
negotiations and reaching settlements with potentially
responsible parties (PRPs) to allow PRPs to conduct or finance
response actions. SARA generally codified the Agency's Interim
CERCLA Settlement Policy but also established some new
authorities and procedures that were designed to facilitate
settlements.
A fundamental goal of the CERCLA enforcement program is to
facilitate voluntary settlements. EPA believes that such
settlements are most likely to occur when EPA interacts
frequently with PRPs. Frequent interaction is important because
it provides the opportunity to share information about a site and
may reduce delays in conducting response actions caused by the
lack of communication. Important mechanisms for promoting
interaction and facilitating communication between EPA and PRPs
include issuing notice letters, entering into negotiations, and
exchanging information with PRPs.
1 CERCLA of 1980 as amended by SARA of 1986 is referred to
in this guidance as CERCLA.
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Table of Contents
I. Introduction
II. Purpose and Scope of Guidance
III. Statutory Authority
A. Settlements
B. Special Notice Procedures and Information Release
IV. Information Exchange
A. Information Requests
B. Information Release
V. Notice Letters and Negotiation Moratorium for RI/PS and
RD/RA
• A. Purpose of Notice Letters
B. General Notice Letter
1. Whether to Issue General Notice
2. Timing of General Notice
3. Recipients of General Notice
4. Contents of General Notice
C. RI/FS and RD/RA Special Notice Letters
1. Whether to Issue RI/PS and RD/RA Special Notice
2. Notifying PRPs When Not Appropriate to Issue
RI/FS and RD/RA Special Notice
3. DOJ Role in RI/FS and RD/RA Negotiations
4. Timing of RI/FS Special Notice
5. Timing of RD/RA Special Notice
6. Recipients of RI/FS and RD/RA Special Notice
7. Contents of RI/FS and RD/RA Special Notice
D. Conclusion of Negotiation Moratorium and Deadline
Management for RI/FS and RD/RA
VI. Notice Letters and Negotiation Moratorium for Removal
Actions
A. Notice Letters
1. Whether to Issue Notice for Removals
2. When to Use Special Notice Procedures for
Removals
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3. Notifying PRPs When Not Appropriate To Utilize
Special Notice Procedures for Removals
4. DOJ Role in Removal Negotiations
5. Timing of Notice for Removals
6. Recipients of Notice for Removals
7. Contents of Notice for Removals
B. Conclusion of Negotiation Moratorium and Deadline
Management for Removals
C. Administrative Orders and Negotiation Moratorium
for Removals
VII. Disclaimer
VIII. For Further Information
Appendices
Appendix A: Timing of RD/RA Special Notice Letter
Appendix B: Settlement Process Timelines
Appendix C: Model Notice Letters (To be provided under
separate cover)
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INTERIM GUIDANCE ON NOTICE LETTERS, NEGOTIATIONS,
AND INFORMATION EXCHANGE
-------
This guidance replaces the October 12, 1984 guidance on
"Procedures for Issuing Notice Letters" and the October 9, 1985
guidance on "Timely Initiation of Responsible Party Searches,
Issuance of Notice Letters, and Release of Information." *
Although certain procedures and the timing of various activities
have been modified, this guidance retains many fundamental
aspects of the October 12, 1984 and October 9, 1985 guidances.
In particular, this guidance re-emphasizes the importance of
timely issuance of notice letters and the exchange of information
between EPA and PRPs. In addition, this guidance incorporate* a
moratorium and "formal" period of negotiation (referred to as a
negotiation moratorium) into the settlement process. EPA's
commitment to carrying out these activities is crucial for
supporting our fundamental goal of facilitating negotiated
settlements.
II. PURPOSE AND SCOPE OF GUIDANCE
The purpose of this guidance is to assist the Regions in
establishing procedures for the issuance of notice letters to
PRPs. for the conduct of negotiations between EPA and PRPs, end
for the exchange of information between EPA and PRPs.
This guidance addresses the use of both "general" and
"special" notice letters for removal and remedial actions.
Special notice letters differ from general notice letters because
special notices trigger the negotiation moratorium. The
negotiation moratorium is the period of time where a moratorium
is imposed on certain EPA actions and a period of "formal"
negotiations is established between EPA and PRPs.
Use of both general and special notice letters are
discretionary. However, the Regions are expected to issue
general and special notices for the vast majority of remedial
actions. Such notice letters will be issued for remedial
investigations/feasibility studies (RI/FSs) and remedial
designs/remedial actions (RD/RAs). Although it is generally
appropriate to issue a "removal notice" for all removal actions,
the Regions are not expected to invoke the §122(e) special notice
procedures for most removals.
This guidance also addresses the timing, duration, and
conclusion of the negotiation moratorium. Finally, this guidance
discusses the process of information exchange between EPA and
PRPs, including requests for and releases of site-specific
information.
» These guidances were issued under OSWER Directive Numbers
9834.1 and 9834.2, respectively.
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III. STATUTORV AUTHORITY
A. SETTLEMENTS
Sections 104(a), 122(a), and 122(e)(6) authorize settlement*
and establish certain conditions for allowing PRPs to conduct or
finance response actions. Section 104(a) authorizes EPA to enter
into an agreement with PRPs to allow PRPs to conduct or finance
response actions in accordance with S122 if EPA determines that
the PRPs will conduct the response action properly and promptly.
Under S104'.a), PRPs cannot conduct the RI/PS unless EPA
determines that the PRP is qualified to perform the RI/PS, EPA
contracts with or arranges for a qualified person other than the
PRP to assist EPA in overseeing and reviewing the RI/PS. and the
PRP agrees to reimburse the Fund for the costs EPA incurs in
overseeing and reviewing the PRP's RI/FS.
Section 122 (a) similarly authorizes EPA to enter into
agreements with PRPs tp perform response actions if EPA
determines the action will be conducted properly. Section 122(a)
also provides for EPA, when practicable and in the public
interest, to facilitate settlements with PRPs to expedite
effective remedial actions and .to minimize litigation.
i
Section 122(e)(6) provides that no PRP may undertake any
remedial action at a facility where EPA or a PRP pursuant to an
administrative order or consent decree under CERCLA has initiated
an RI/FS unless the remedial: action has been authorized by EPA.
B. SPECIAL NOTICE PROCEDURES AND INFORMATION RELEASE
Sections 122(e) and 122(a) contain provisions relating to
the special notice procedures and the release of information to
PRPs. Section 122(e) provides for EPA to utilize the special
notice procedures if EPA determines that a period of negotiation
would facilitate an agreement with PRPs and would expedite
remedial actions. Section 122(e) also provides for EPA to
release certain information to PRPs. Such information includes,
to the extant available, the names and addresses of other PRPs,
the volume and nature of substances contributed by each PRP, and
a ranking by volume of the substances-at the facility.* In
3 Congress recognized that there may be limitations to the
availability of information at early phases of the response
action. In particular. Congress noted that the RI/FS special
notice need not be accompanied by information on volume and
nature of waste and ranking if this information is not available
at the start of the RI/FS. A separate notice and information
release should be provided for private parties who actually
conduct the remedial action and information on volume, nature and
ranking of wastes should be made available routinely at this
-------
addition, this section provides Cor EPA to make such information
available in advance of the special notice upon request by a PRP
in accordance with procedures provided by EPA.
Issuance of a special notice triggers a moratorium on 'the
commencement of certain actions by EPA under $104 or 5106. The
purpose of the moratorium is to provide for a period of
negotiation between EPA and PRPs. The moratorium prohibits EPA
from commencing any response action under 1104(a), and an RI/FS
under 5104(b), or an action under S106 for 60 days after receipt
of the notice. If EPA determines that a "good faith offer" has
been submitted by the PRP within 60 days after receipt of the
special notice, EPA shall not commence an action under 1104(a) or
ktake any action against any person under S106 for an additional
60 days or commence an RI/FS under 5104(b) for an additional 30
days.
Under §122(e)(2)(a), EPA may. commence any'additional other
studies or investigations authorized under 5104(b), including the
remedial design, during the negotiation period. Under
5122(e)(2)(C), if an additional PRP is identified during the
negotiation period or after an agreement has been entered into,
EPA may bring the additional party into the negotiation or may
enter into a separate agreement with the PRP. Under S122(e)(5),
EPA is not prohibited from undertaking a response or enforcement
action during the negotiation period when there is a significant
threat to public health or the environment.
Section 122(a) provides that if EPA decides not to use the
special notice procedures established under 5122(e), EPA is
required to notify PRPs in writing of this decision along with an
explanation why it is inappropriate to use such procedures.
The decision by EPA to use or not to use the special notice
procedures is not subject to judicial review.
IV. INFORMATION EXCHANGE
The exchange of information between EPA and PRPs is crucial
for facilitating settlements. Information exchange should be an
ongoing process 'of communication. EPA uses information obtained
from PRPs to determine potential liability, to determine the need
for response, and to support the selection of the remedy. PRPs
use information obtained from EPA to organize among themselves
and to develop a "good faith offer" to conduct or finance
response actions.
time. See the Conference Report on the Superfund Amendments and
Reauthorization Act of 1986, 99 Cong., 2d Sess. Report 99-962
pp. 253 (1986).
-------
A. INFORMATION REQUESTS
EPA may request information from PRPs about various
activities and conditions under §104 (e) of CERCLA and under
§3007(a) of the Resource Conservation and Recovery Act (RCRA).
In addition, EPA may issue administrative subpoenas under
5122(e)(3)(b) of CERCLA. Information commonly requested includes
details concerning waste operations and waste management
practices, the type and amount of substances contributed by each
PRP, as well as the name of other PRPs that contributed
substances to the site.
Information requests should be issued as early as
practicable and may be issued as a separate letter during the PRP
search process, as part of the general notice letter, or through
an administrative subpoena. A detailed discussion about the use
of information request letters and administrative subpoenas
is contained in the forthcoming "Guidance on Use and Enforcement
of Information Requests and Administrative Subpoenas under CERCLA
55104(e) and 122(e)."
The Regions have the discretion to decide whether to issue
an information request as a separate letter during the PRP search
or as a component of a general notice letter. Issuing a separate
information request letter in advance of the general notice may
be advantageous in situations where information from PRPs is
needed to determine whether it is appropriate to issue a notice
letter to such parties. :
Information requests should be developed in accordance with
the forthcoming guidance on information requests and
administrative subpoenas as mentioned above. An information
request should also indicate that EPA plans to vigorously enforce
information requests with the new enforcement tools authorized
under SARA which include issuing orders under S104(e)(5).
Finally, the information request should indicate that it is the
PRPs responsibility to inform EPA whether information they
provide to EPA is confidential and subject to protection under
5104(e) of CEltCLA.
B. INFORMATION. .RELEASE
It is important to gather and release site-specific
information to PRPs as soon as reasonably practicable. Gathering
and releasing such information early in the process will not only
expedite response and enforcement activities but will help PRPs
organize and negotiate among themselves as well.
As indicated, 5122(e)(l) provides for the release of certain
information to PRPs to the extent such information is available.
Such information includes the names and addresses of other *RPS-
the volume and nature of substances contributed by each PRP, and
-------
a ranking by volume of the substances at the facility. This
information is to be provided to PRPs in advance of the special
notice in accordance with procedures developed by EPA.
Congress recognized the limitations to BPA's ability to make
certain information available to PRPs, especially early in the
response process. Therefore, this information can be released
only to the extent such information is available. If the Regions
have information on volume, the Regions should develop volumetric
rankings and should make such information available to PRPs as
soon as practicable. However, due to their preliminary and
summary nature, EPA will not expend resources to explain or
defend any list or ranking. Lists or rankings released to PRPs
and others should always contain appropriate disclaimers.
The Regions are encouraged to release information to PRPs as
soon as reasonably possible. The Regions may respond directly to
individual PRP requests for information, may use the notice
letters as vehicles to. release such information to PRPs, or aay
establish alternative mechanisms in some situations as discussed
below. The Regions are strongly encouraged to use the notice
letters to release site-specific information. In particular, use
of the general notice may provide a convenient opportunity to
release information in advance of the special notice pursuant to
the statutory provision that EPA release such information in
advance of the special notice in accordance with procedures
developed by EPA.
Although it is generally preferable to release information
to individual PRPs through notice letters, alternative mechanisms
may be used in unusual circumstances. For example, in instances
where there are many PRPs and/or where there is a substantial
amount of information to be released, the Regions may consider
making the information available through a central mechanism
(e.g. through a PRP steering committee if one has been formed and
if the committee has agreed to be a clearinghouse for
distributing information to other PRPs). An alternative would be
to indicate in the notice letter that the Region has site-
specific information that will be made available to the PRPs in a
manner specified in the letter.
V. NOTICE LETTERS AND NEGOTIATION MORATORIUM FOR RI/FS AND RD/RA
This guidance creates a systematic process for issuing three
separate notice letters for remedial actions. The three notice
letters are 1) the general notice, 2) the RI/FS special notice,
and 3) the RD/RA special notice. Even though the RI/FS and RD/RA
special notice letters are separate letters, they are discussed
in the same section below since the content of these letters is
basically the same. In instances where the content of the RI/FS
and RD/RA special notices differ, separate sections are
presented.
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Also, this guidance is written with the assumption that each
notice letter will be issued in sequence. Consequently, the
guidance has been structured so that certain information provided
or requested in one letter is not repeated in a subsequent
letter. The content of actual letters may, however, need to be
modified in situations where this process is not followed.
For example, there may be a situation where site activities
are already underway and where the Region is ready to issue the
RI/FS special notice but has not issued a general notice. In
this instance, it would not be necessary to wait to send the
special notice until after a general notice is issued. However,
it may be appropriate to include certain aspects of the general
notice into the special notice.
A. PURPOSE OF NOTICE LETTERS
The purpose of the general notice is to inform PRPs of their
potential liability for future response costs, to begin or
continue the process of information exchange, and to initiate the
process of "informal" negotiations. In addition, the general
notice informs PRPs about the possible use of the 5122(e) special
notice procedures and the subsequent moratorium and "formal"
negotiation period.
The purpose of the special notice is similar to the general
notice, except that the special notice is also used to invoke the
statutory moratorium on certain EPA actions and to initiate the
process of "formal" negotiations. Although the general notice
does not trigger a moratorium on any EPA action and does not
invoke a "formal" period of negotiation, the general notice is
expected to initiate a dialogue between EPA and PRPs. Issuance
of a general notice should be viewed as a mechanism for
initiating negotiations whereas issuance of a special notice
should be viewed as a mechanism for concluding negotiations.
The tern -informal" negotiations does not mean that such
negotiations are not serious efforts to reach a settlement.
Rather "informal" negotiations refers to any negotiations that
are not conducted as part of the negotiation moratorium triggered
by issuance of a special notice under 5122(a). The terms
"informal" and "formal" negotiations are used to draw a
distinction between negotiations which are and are not covered by
the 5122(e) moratorium.
B. GENERAL NOTICE LETTER
Agency notification procedures should provide PRPs with
sufficient time to organize and develop a reasonable offer to
conduct or finance the response action. Toward this end, the
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Regions should contact PRPs prior to issuing a 5122(e) special
notice by issuing a general notice letter.
1. Whether to Issue General Notice
A general notice letter should be issued at the vast
majority of sites that are proposed for or listed on the National
Priorities List (NPL) where negotiations for the RI/FS and RO/RA
have not yet been initiated. Circumstances where it may not be
appropriate to issue the general notice include sites
where a notice pursuant to previous guidance was issued prior to
the reauthorization of CERCLA or where the Region is ready to
issue a special notice at the site. These exceptions are
important for minimizing any possible disruption to ongoing
activities.
2. Timing of General Notice
The general notice letter should be sent to PRPs as early
in the process as possible, preferably once the site has been
proposed for inclusion on the NPL. Early receipt of the general
notice will ensure that PRPs have adequate knowledge of their
potential liability as well as a realistic opportunity to
participate in settlement negotiations. When a separate
information request letter has been sent to PRPs prior to the
general notice, the information request should be sent as early
as possible to avoid any delay in issuing the general notice.
3. Recipients of General Notice
General notice letters should be sent to all parties where.
there is sufficient evidence to make a preliminary determination
of potential liability under 5107 of CERCLA. It there is doubt
about whether available information supports issuance of the
general notice, separate information request letters may be sent
to such parties prior to issuing the notice. If a Federal agency
has been identified as a generator at a facility not
owned/operated by the Federal agency, such agency should be
routinely notified like other PRPs.
If additional PRPs are identified after the general notice
but before the RI/FS special notice is issued, the Regions should
provide a general notice to those additional PRPs. If additional
PRPs are identified after general and special notices are issued,
the additional PRPs need not receive a general notice before
receiving the appropriate special notice. However, relevant
aspects of the general notice should be incorporated into the
special notice.
Copies of the general notice should be provided to the
Regional administrative record coordinator, the appropriate State
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representative, the State or Federal trustee if a trustee for
natural resources has been designated, and to EPA headquarters at
the same time notices are sent to PRPs. The copies of notices to
headquarters should be sent to the Information Management Section
within the Program Management and Support Office of the Office of
Waste Programs Enforcement (OWPE).
Providing copies to the administrative record coordinator it
important for ensuring that the notice is placed in the
administrative record.4 Providing copies to the State
representative and the State or Federal trustee is important for
ensuring that States are appropriately informed about possible
future negotiations.9 Providing copies to OWPE is essential for
permitting entry into the Superfund Enforcement Tracking System
(SETS). Entry into sets will facilitate our efforts to track
site activities and to respond to Congressional and other
inquiries. Direct Regional input of data into SETS on notice
letter recipients is planned for FY 1988.
It is not necessary to provide copies of each general notice
to the administrative record coordinator, State representative.
State or. Federal trustee, or headquarters in instances where
identical notices are provided to multiple PRPs. Where there are
multiple PRPs at a site, a copy of one general notice with a list
of other parties who have received the letter would suffice.
4. Contents of General Notice
The general notice letter should contain the following
components: a) a notification of potential liability for
response costs, b) a discussion about future notices and the
possible future use of special notice procedures, c) a general
discussion about site response activities, d) a request for
information about the site (if appropriate), a) the release of
certain site-specific information (where available), f) a
discussion about the merits of forming a PRP steering committee,
g) a notice regarding the development of an administrative
record, and h) a deadline for response to the letter and
information on the EPA representative to contact.
4 A discussion about placing notice letters in the
administrative record is covered in the forthcoming "Guidance on
the Administrative Record for Selecting a Response Action Under
CERCLA" and in the preamble to the forthcoming revisions to the
National Contingency Plan.
9 State participation in negotiations is covered in the
forthcoming "Interim Guidance on EPA-State Relations in CERCLA
Enforcement."
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a. Potential liability: The letter should inform parties
that they are potentially liable for response costs under 5107 of
CERCLA, including the costs of conducting the RI/FS and RO/RA.
The letter should define the scope of potential liability and
should briefly explain why the parties have been identified as
PRPs.
b. Future notice under 5122(a) or S122(e): The letter
should indicate that EPA will notify the party at an appropriate
point in the future. The letter should specify that this notice
will either be a 5122(a) notice or a 5122 (e) special notice and
should explain what these notices are.
The letter should indicate that the 5122(a) notice is a
notice which informs parties that EPA will not use the 1122(e)
special notice procedures. The letter should indicate that the
notice will provide an explanation for the decision not to use
the special notice procedures.
The letter should also indicate that a 5122(e) special
notice will invoke the negotiation moratorium. The letter should
make clear that issuance of a 5122(e) special notice letter is
discretionary and may be used if EPA determines that use of such
procedures would facilitate an agreement and expedite remedial
action. The letter should also explain the purpose of the
special notice and the subsequent negotiation moratorium.
Informing PRPs about the special notice procedures and the
negotiation moratorium will alert PRPs to possible future
negotiations and increase their awareness of their opportunities
for participation in such negotiations.
c. Site response activities; The letter should generally
discuss the activities EPA plans to undertake at the site. Where
appropriate, such activities should include scheduled start or
completion dates for the RI/FS or RD/RA. Instances where it may
not be appropriate to provide start or completion dates include
situations where the general notice is issued very early in the
process and where specific dates have not yet been set, or where
it is expected that target dates are likely to change
significantly.
d. Information request: The letter should request
information on substances sent to or present at the site and the
names of other PRPs pursuant to 5104(e) of CERCLA and/or 53007(a)
of RCRA if a separate information request has not already been
issued. The content of the information request should be
consistent with the forthcoming "Guidance on Use and Enforcement
of Information Requests and Administrative Subpoenas Under CBRCLA
5104(e) and 5122(e)."
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e. Information release: At a minimum, the letter should
release the names and addresses of other PRPs who have received
the general notice letter. In addition, to the extent such
information is available, the letter should include the volume
and nature of substances contributed by each PRF and a ranking by
volume of the substances at the facility if such information has
not been previously released.
f. PRP steering committee; The letter should request that
the PRPs identify a member of their organization who will
represent their interests. In addition, the letter should
recommend that PRPs form a steering committee to represent the
group's interests in possible future negotiations. The letter
should indicate that establishing a steering committee is
important for facilitating negotiations with EPA.
g. Administrative record: The letter should be used as a
vehicle for informing PRPs of the.availability of an adain-
istrative record that will contain documents which form the basis
for the Agency's decision on the selection of remedy. The letter
should indicate that the record will be open to the public for
inspection and comment. The letter should also provide
information regarding the opening of the record and where it will
be located.
h. PRP response and EPA contact: The letter should
encourage PRPs to notify EPA by a specified date of their
interest to participate in future negotiations. The letter
should indicate that PRPs may respond as a group through a
steering committee if one has been formed. The letter should
also provide a cut off date for voluntary compliance with
information requests (if a request for information is contained
in the general notice). An appropriate time frame for the PRP
response to an information request is generally thirty days from
receipt of the letter. Finally, the letter should provide the
name, phone number, and address of the EPA representative to
contact.
C. RI/FS and RD/RA SPECIAL NOTICE LETTERS
Prior to EPA's conduct of the RZ/F.S and RO/RA, the Regions
should either issue the special notice to PRPs or provide PRPs
with an explanation why it was not appropriate to use the special
notice procedures. Issuance of the special notice triggers a
moratorium on EPA's conduct of the RI/FS and remedial action.
While the statute does not impose a moratorium on EPA's conduct
of the remedial design, the Agency will not generally conduct
such activities during the moratorium. The purpose of the
moratorium is to provide for a formal period of negotiation
between EPA and PRPs where the PRPs will be encouraged to conduct
or finance response activities.
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The negotiation moratorium may last a total of 90 days for
the RI/FS and 120 days for the RD/RA if EPA receives a "good
faith offer" from PRPs within the first 60 days of the
moratorium. The negotiation moratorium would conclude after 60
days if the PRPs do not provide EPA with a "good faith offer."
The initial 60 day moratorium begins on the date the PRPs
receive the special notice via certified aail. In instances
where there is more than one PRP and PRPs are likely to receive
the special notice on different days, the date the moratorium
begins should be seven days from the date the letters are sailed
to the PRPs. In either case, the special notice must make clear
when the negotiation moratorium begins and ends.
1. Whether to Issue RI/FS and RD/RA Special Notice
EPA has the discretion to use the special notice procedures
when EPA determines that a period, of negotiation would facilitate
an agreement with PRPs and would expedite remedial actions.
The Agency believes entering into such negotiations would
generally facilitate settlements and plans to utilize the RI/FS
and RD/RA special notice procedures in the vast majority of
cases.
There are. however, some circumstances where it would
generally not be appropriate to use such procedures. Such
circumstances include 1) where past dealings with the PRPs
strongly indicate they are unlikely to negotiate a settlement,
2) where EPA believes the PRPs have not been negotiating in good
faith, 3) where no PRPs have been identified at the conclusion of
the PRP search, 4) where PRPs lack the resources to conduct -
response activities, 5) where there are ongoing negotiations, or
6) where notice letters were already sent prior to the
reauthorization of CERCLA and onging negotiations would not
benefit by issuance of a special notice.
Special notices may be issued for operable units of remedial
actions. The test for determining whether to issue a special
notice for an operable unit is generally the same as for full-
scale remedial actions. The general expectation is that separate
special notices will be issued for ea.ch separate operable unit as
long as issuing the notice would facilitate an agreement and
would expedite the remedial action. However, special notices may
also be issued for only major operable units or may cover a
series of operable units if appropriate under the circumstances
at the site.
For example, if several operable units will be conducted at
a site as relatively separate and distinct response actions, it
may be appropriate to consider using separate special notices
which would trigger separate negotiation moratoriums. If a series
of operable units will make up a remedial action it may be
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appropriate to issue the special notice to cover only the major
operable unit(s) or to cover several operable units.
•«
2. Notifying PRPs When Not Appropriate to Issue
RI/FS and RD/RA Special Notice
In instances where EPA decides it is inappropriate to issue
the special notice, §122(a) provides for BPX to notify PRPs in
writing of that decision. The notice must indicate the reasons
why the Region determined that issuing the special notice and
entering into "formal" negotiations was not appropriate.
The notice should be provided to all PRPs that have been
identified to date as well as to the Regional administrative
record coordinator for placement in the record. Such notices
should be provided as soon as practicable. In instances where
the RI/FS or RD/RA have not yet been initiated,, the notice should
be sent prior to the initiation of such activities if possible.
In addition, the 5122(a) notice should be used as a vehicle.
for informing PRPs that the Agency will establish or has
established an administrative record containing technical
documents supporting the Agency's decision on the selection of
remedy. The notice should indicate that the record is open for
public inspection and comment and should specify where the record
will be or has been located.
3. DOJ Role in RI/FS and RD/RA Negotiations
The Regions should notify the Chief of the Environmental
Enforcement Section in the Department of Justice (DOJ) prior to
issuing special notice letters where settlement by a consent
decree is contemplated. A copy of this memorandum should also be
provided to the Office of Waste Programs Enforcement and the
Office of Enforcement and Compliance Monitor.ing in Headquarters.
The memorandum to DOJ should indicate when the Region
intends to issue the special notice. Because most RI/FS
negotiations involve consent orders, notice to DOJ on the RI/FS
is not ordinarily necessary. However, where a site is in
litigation or where settlement by consent decree is expected, DOJ
should be notified at least 30 days prior to issuing the RI/FS
special notice. In addition, where the resolution of the matter
by an administrative order is expected to involve a compromise of
past or future response costs and the total response costs
will exceed S500.000, DOJ is to be notified. DOJ's role will be
to review the compromise of the claim pursuant to section
122(h)(l) but not to review the administrative order for the
RI/FS. For RD/RA negotiations, the notice should be sent to DOJ
at least 60 days prior to issuing the RD/RA special notice. The
memorandum should also identify the EPA Regional representative
DOJ should contact.
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In addition, the Regions should consult with the Chief of
the Environmental Enforcement Section prior to sending a copy of
any draft consent decree or any outline of a draft consent decree
to PRPs. The Regions are encouraged to include a draft consent
decree with the RD/RA special notice or soon thereafter as
discussed below.
4. Timing of RI/FS Special Notice
It is important that PRPs receive the RI/PS special notice
letter as soon as practicable. Of greater importance, the letter
must be sent sufficiently in advance of obligations for the RI/PS
so that negotiations do not delay the initiation of the RZ/FS by
the Fund in the event the negotiations do not result in an
agreement providing for the PRPs to conduct or finance the RI/FS.
Timely receipt of the special notice will have a significant
effect on the PRPs ability for meaningful participation in formal
negotiations.
The RI/FS special notice letter should be sent to PRPs no
later than 90 days prior to the scheduled date for initiating the
RI/FS. The scheduled date for initiating the RI/FS refers to the
date funds will be obligated to commence response activities.
A minimum of 90 days is important for ensuring that the
negotiation moratorium does not delay initiation of the RI/FS in
the event negotiations do not result in a settlement. The time
for service by mail should be taken into account.
5. Timing of RD/RA Special Notice
The timing of the RD/RA special notice letter will have a
significant impact on both the success of negotiations and on
EPA's ability to move forward with implementing a remedy without
delay. As indicated earlier, "formal" negotiations pursuant to
special notice are not the sole vehicle for reaching settlements.
"Informal" negotiations must occur throughout the process and in
advance of the special notice. To assure that "formal"
negotiations are productive, EPA must initiate PRP search and
information exchange activities as well as "informal"
negotiations as early as possible.
The primary purpose of the special notice procedures is to
facilitate settlements through negotiation. A primary concern in
determining when to issue an RD/RA special notice is whether
there is a likelihood that meaningful negotiations can be
conducted at a given stage in the process. Another concern is
that, to the extent practicable, the negotiations must be
scheduled to minimize any delay in the remedial design and
remedial action. A final concern is that negotiations be carried
out in a way that does not undermine or have the appearance of
undermining the public participation process.
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This guidance establishes an approach which identifies when
the Regions muse generally issue the RD/RA special notice letter.
The Regions may, however, adopt an alternative approach under
appropriate circumstances. Appendix A contains illustrations of
the three approaches discussed below. *
a. General Approach; Issue special notice when release
draft PS and proposed plan for public comment. The Regions
generally must issue the RD/RA special notice when the draft
feasibility study (FS) and proposed plan T are released to the
public for comment. As shown in Appendix A, issuance of the
special notice with the release of the draft PS and proposed plan
triggers the initial 60 day negotiation moratorium. The initial
60 day negotiation moratorium begins at the start of the 30 day
public comment period and, in conjunction with the first 30 days
of the 60 day extended neg6tiation moratorium, is concurrent with
the Record of Decision (ROD) review and approval process. The
remaining 30 days of the extended negotiation moratorium is
concurrent with the initial phases of the remedial design. EPA's
ability to sign the ROD is not affected by the duration of the
negotiation moratorium. The ROD may be signed at any point after
the close of the public comment period and the preparation of the
responsiveness summary for the public.
In most cases, commencing formal negotiations at the same
time that the draft FS and proposed plan are released will
properly balance the considerations stated earlier relating to
EPA's ability to conduct meaningful negotiations, to minimize
delay in implementing the RD/RA, and to maintain the integrity of
the public participation process. Under this approach, formal
opportunity for PRP involvement would begin at an early yet
concrete stage in the process. Early participation may be
especially advantageous in situations where PRPs have not been
previously or substantially involved in RZ/FS activities. In
addition, PRPs and the public would have knowledge of the
possible range of alternatives through the draft FS and proposed
• The time periods depicted in the following discussion and
illustrated in Appendix A reflect "best case" scenarios where
various response and enforcement activities are expected to be
carried out without delay. For example, the public comment
period lasts 30 days and does not take into account a possible
extension.
' The proposed plan refers to the public participation
document developed pursuant to S117(a). This is a non-legal,
non-technical document that describes the alternatives in the FS,
and specifies and provides a brief analysis of EPA's preferred
alternative. A more detailed discussion of the proposed plan
will be contained in the forthcoming "Guidance on Documenting
Decisions at Superfund Sites" (referred to as the ROD Guidance).
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plan prior to "formal" negotiations. This information is
'important for assisting the PRPs in developing a meaningful "good
faith offer" for conducting or financing the RD/RA.
b. Alternative Approach; Issue special notice prior to
release of draft FS and proposed plan for public comment.
Although the Regions generally will issue the RD/RA special
notice when the draft FS and proposed plan are released to the
public for comment, the Regions are encouraged to issue the
special notice earlier in the process if this action would
facilitate the prospects for reaching a settlement. If a Region
chooses to follow this approach, the Region should include with
the special notice a summary or fact sheet of the alternatives
EPA has screened and the alternatives the Agency is currently
considering. •
As shown in Appendix A, the RO/RA special, notice nay be
issued prior to EPA's release of -the draft FS and proposed plan.
Issuance of the special notice triggers the initial 60 day
negotiation moratorium. The initial negotiation moratorium is •
concurrent with the review and. release of the draft FS and
proposed plan. The initial negotiation moratorium is completed
prior to the initiation of the public comment period. The public
comment period is concurrent with the first 30 days of the
extended negotiation moratorium. The remaining 30 days of the
extended negotiation moratorium is concurrent with the ROD review
and approval process. The ROD could be signed and the
negotiation moratorium could*-be concluded at about the same time.
EPA's ability to sign the ROD is not affected by the negotiation
moratorium. The ROD may be signed at any point after the close
of the public comment period and the preparation of the
responsiveness summary for the public.
In many cases, providing special notice at this early stage
may be inappropriate because too much uncertainty would exist .
about the remedy to allow for meaningful negotiations. However,
under other circumstances it may be appropriate to issue the
• Release of a summary or fact sheet on the alternatives
that have been screened and the alternatives that are being
considered is important for facilitating negotiations at this
early stage in the remedial process. This information will be
useful to PRPs in developing their "good faith offer" for
conducting or financing a response action and will be important
for informing PRPs about the alternatives the Agency is
considering at the site. The Regions should include the summary
of alternatives or fact sheet in the administrative record for
each site.
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special notice early in the process, especially in situations
where there is a relatively small group of PRPs. it is clear what
the remedy is likely to be, and the remedy is not likely tg be
controversial.
Where circumstances permit issuance of the special notice at
this early stage, an advantage to this approach is that the ROD
review and approval process and the negotiation moratorium could
be concluded at about the same time. This would help assure that
cleanup occurs as soon as possible whether through a negotiated
settlement or Fund-financed action. In addition, there would be
an early opportunity to inform PRPs of various remedial
alternatives under consideration by EPA prior to EPA's
identification of the proposed plan. Early participation nay be
advantageous where PRPs have not been previously or substantially
involved in RI/FS activities.
c. Alternative Approach; Issue special notice when the ROD
is signed. Although the Regions generally will issue the RD/RA .
special notice letter when the draft FS and proposed plan are
released to the public for comment, there may be some limited
circumstances where it is appropriate to issue the notice later
in the process (i.e. when the ROD is signed). This approach nay
be followed, however, only where the Region can provide adequate
justification and where the Region has obtained prior approval
from Headquarters. Approval must be obtained in writing from the
Directors of the Office of Waste Programs Enforcement and the
Office of Emergency and Remedial Response.
As shown in Appendix A, under this approach the RD/RA
special notice would not be issued until the ROD is signed.
Thus, the entire 60 to 120 day negotiation moratorium would not
occur until the remedial design phase.
An advantage to.this approach is that since the ROD would be
signed and the remedy would be selected at the start of the RD/RA
negotiation moratorium, the PRPs would know precisely which
remedy the "good faith offer" and the negotiations should focus
on. In addition, since the negotiations would begin after the
close of th« public comment period, the PRPs and EPA would have
the benefit of knowing the public comments.
The major disadvantage to this approach is that the
negotiation moratorium would not occur until the end of the
process (i.e. not until the beginning of the remedial design
phase). Issuing the special notice at this point would create
the greatest potential for a subsequent delay in implementing
the remedy.
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Instances where it may, however, be appropriate to issue the
special notice later in the process (i.e. not until the ROD is
signed) may be where more time is needed to conduct informal
negotiations, where the site is particularly complex, or where
there is an extraordinarily large number of PRPs (e.g. hundreds
of PRPs). Another example may be where there is little
expectation that a Fund-financed remedial action will occur in
the near future at an enforcement-lead site. Zf Fund-financed
activities are not expected to occur and a later moratorium would
facilitate cleanup, it may be less important to initiate and
conclude negotiations early in the process.
6. Recipients of RI/FS and RD/RA Special Notice
The RI/FS and RD/RA special notice letters should be sent to
all parties where there is sufficient evidence to make a
preliminary determination of potential liability under S107 of
CERCLA. If there is doubt about whether available information
supports issuance of the RI/FS and RD/RA special notices,
separate information request letters may be sent to such parties-
prior to issuing such notice. If a Federal agency has been
identified as a generator at a facility not owned/operated by the
Federal agency, such agency should be routinely notified like
other PRPs.
Section 122(e)(2)(C) authorizes EPA to bring additional
parties into negotiations or to enter into a separate agreement
with parties when additional*PRPs are identified during the
negotiation period or after an agreement has been entered into.
The Regions may provide a special notice to additional parties if
they are identified after issuance of the RI/FS special notice
letter. However, issuance of a special notice to additional
parties would not change the duration of the negotiation
moratorium. The special notice may invite PRPs to participate in
remaining negotiations, but would not extend the pre-existing
negotiation moratorium.
Copies of the special notices should be provided to the
Regional administrative record coordinator, the appropriate State
representative, the State or Federal trustee if a trustee for
natural resources has been designated.,- and to EPA headquarters at
the saae time notices are sent to PRPs. The copies of notices to
headquarters should be sent to the Information Management Section
within the Program Management and Support Office of the Office of
Waste Programs Enforcement (OWPE).
Providing copies to the administrative record coordinator is
important for ensuring that the notice to be placed in the
record. Providing copies to the State representative and the
State or Federal trustee is important for ensuring that States
are appropriately informed about possible future negotiations.
Providing copies to OWPE is essential for permitting entry into
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the Superfund Enforcement Tracking System (SETS). Entry into
sets will facilitate our efforts to track site activities and to
respond to Congressional and other inquiries. Direct Regional
input of data into SETS on notice letter recipients is planned
for FY 1988.
It is not necessary to provide copies of each special notice
to the administrative record coordinator, State representative.
State or Federal trustee, or headquarters in instances where
identical notices are provided to multiple PRPs. Where there are
multiple PRPs at a site, a copy of one special notice with a list
of other parties who have received the letter would suffice.
7. Contents of RI/FS and RD/RA Special Notice
The RI/FS and RD/RA special notice letters should contain
the following components: a) a notification of potential
liability, b) a discussion about .the special notice and
subsequent negotiation, moratorium, c) a discussion about the
response activities to be conducted, d) a copy of a statement of
work or workplan and a draft administrative order on consent for
the RI/FS, e) a copy of a draft consent decree for the RD/RA (if
possible), f) a discussion about what constitutes a "good faith
offer" for the RI/FS, g) a discussion about what constitutes a
"good faith offer" for the RD/RA, h) a release of certain site-
specific information (where available and appropriate), i) a
demand for payment of EPA costs incurred to date, j) a
notification about the administrative record, and k) a deadline
for response to the letter and the name of the EPA representative
to contact.
a. Potential liability; The letter should specify that
PRPs are potentially liable for the costs of conducting the RI/FS
or the RD/RA. A detailed discussion about potential liability is
not necessary particularly if the RI/FS or RD/RA special notice
references the general notice.
b. Special notice and formal negotiations: The letter
should discuss the purpose of the special notice and the
subsequent negotiation moratorium. The level of detail will
depend upon whether the PRP has received the general notice and
whether the general notice provided an adequate discussion. At
a minimum, the letter should make clear that EPA is inviting PRPs
to participate in "formal" negotiations for PRP conduct of the
RI/FS or RD/RA and that this letter automatically triggers the
formal negotiation period. In addition, it is important that the
special notice indicate the date the negotiation moratorium will
conclude in the absence of and in the event of a "good faith
offer." Finally, the letter should explain that a consent order
or consent decree should be finalized by the end of the
moratorium.
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20
c. Response actions to be conducted: The letter should
identify the response activities EPA plans to conduct at the site
and provide scheduled dates for initiating such activities if
appropriate. .,
d. Statement of work or workplan and draft administrative
order on consent for RI/FS special notice: The letter should
provide a statement of work or workplan and draft administrative
order (AO) on consent. Such information is crucial to PRPs in
their development of a "good faith offer" to EPA for conducting
or financing the RI/FS and for ultimately facilitating
settlements. The Regions are encouraged to provide the draft AO
on consent with the notice letter if practicable. At a minimum,
the letter should contain a copy of the statement of work with
the expectation that the draft AO will follow as soon as
practicable.
I e. Draft consent decree for RD/RA special notice; The
letter should contain a copy of the draft consent decree if
possible. It is important that PRPs have the draft consent
decree at the start of negotiations or soon thereafter since the
decree contains important information which will assist PRPs in
developing1their "good faith offer" to EPA.
f. "Good faith offer" for RI/FS; The letter should
indicate that a "good faith offer" is a written proposal which
demonstrates the PRP's qualifications and willingness to conduct
or finance the RI/FS. A "go'dd faith offer" for the RI/FS should
include the following:
o a statement of the PRPs willingness to conduct or finance
the RI/FS which is generally consistent with EPA's
statement of work or work plan and draft administrative
order on consent or provides a sufficient basis for
further negotiations;
o a paragraph-by-paragraph response to EPA's statement of
work or workplan and draft administrative order on
consent;
o a detailed statement of work or workplan identifying how
the PRPs plan to proceed with the work;
o a demonstration of the PRPs technical capability to
undertake the RI/FS. This should include a requirement
that PRPs identify the firm they expect will conduct
the work or that PRPs identify the process they will
undertake to select a firm;
o a demonstration of the PRPs financial capability to
finance the RI/FS;
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21
o a statement of the PRPs willingness to reimburse EPA for
the costs EPA incurs in overseeing the PRP conduct of the
RI/FS as required by 5104(a)(1); and
• ««
o the name, address, and phone number of the party or
steering committee who will represent the PRPs in
negotiations.
g. "Good faith offer" for RD/RA: The letter should
indicate that a "good faith offer" is a written proposal which
demonstrates the PRPs qualifications and willingness to conduct
or finance the RD/RA. A "good faith offer" for the RD/RA should
include the following:
o a statement of the PRPs willingness to conduct or finance
the RD/RA which is generally consistent with EPA's
proposed plan or which provides a sufficient basis
for further negotiations in light of EPA's proposed
plan;
o a paragraph-by-paragraph response to EPA's draft consent
decree, including .a response ,to other documents that may
have been attached to the decree such as a technical
scope of work for the proposed plan or access or
preauthorization agreements;
o a detailed "statement of work" or "workplan" identifying
how PRPs plan to proceed with the work;
p a demonstration of the PRPs technical capability to
undertake the RD/RA. This should include a requirement
that PRPs identify the firm they expect will conduct
the work or that PRPs identify the process they will
undertake to select a firm;
o a demonstration of the PRPs capability to finance the
RD/RA;
o a statement of the PRPs willingness to reimburse EPA for
past response and oversight costs;
o a discussion about the PRPs position on releases from
liability and reopeners to liability; and
o the name, address, and phone number of the party or
steering committee who will represent the PRPs in
negotiations.
h. Information release: To the extent such information is
available and to the extent such information has not been
previously released, the letter should contain information on the
names and addresses of other PRPs, the volume and nature of
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22
substances contributed by each PRP, and a ranking by volume of
the substances at the facility. Note that the release of
information with the RI/FS and RO/RA special notices is not
intended to require the release of information previously _
provided to PRPs.
i. Demand for payment; The letter should include a demand
that PRPs reimburse EPA for the costs the Agency has incurred in
conducting response activities at the site pursuant to §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 pact
and future response costs incurred by EPA pursuant to 5107(a).
Notice letters should not be delayed to obtain cost information
where such information has not been previously collected.
j. Administrative record; The letter should be used as a
vehicle for informing PRPs of the availability of an admin-
istrative record containing documents that form the basis for the
Agency's decision on the selection of remedy. The letter should
indicate that the record is open to the public for inspection and
comment. The letter should also indicate where the record will
be or has been located.
k. PRP response and EPA contact person; The letter should
encourage PRPs to notify EPA-of their interest to participate in
negotiations. The letter should indicate that PRPs may respond
as a group through a steering committee if a committee has been
formed. In addition, the letter should provide the name, phone
number, and address of the EPA representative to contact.
D. CONCLUSION OF NEGOTIATION MORATORIUM AND DEADLINE
MANAGEMENT FOR RI/FS AND RD/RA
At the conclusion of the 5122(e) negotiation moratorium, the
Regions should have a fully negotiated administrative order on
consent for the RZ/PS and a fully negotiated consent decree for
the RD/RA which has been signed by the PRPs. A signed document
is necessary to show that an agreement, has, in fact, been
reached. •
• Pre-SARA guidance for drafting an administrative order is
provided in "Superfund Administrative Order: Workshop and
Guidance Materials" (1985) and for drafting a consent decree in
"Guidance on Drafting Consent Decrees in Hazardous Waste Cases"
(May 1, 1985). These guidances are being revised to include
SARA'S requirements.
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23
At the conclusion of the 120 day moratorium for the RD/RA a
determination must be made on whether to continue settlement
activities, whether the site should be cleaned up using Superfund
money, or whether to initiate a 5106 enforcement action. A
continuation of settlement activities nay include seeking an
extension to the 120 day negotiation moratorium as discussed
below, or sending a consent decree to the Department of Justice
for lodging in the appropriate district court.
In instances where an agreement has been reached and fully
negotiated but PRPs have not yet obtained signatures, it nay be
necessary to obtain an extension to the negotiation moratorium.
Extensions may also be necessary where the agreement has not been
fully negotiated but all major issues are resolved and
outstanding issues are well defined and final language is
imminent. Extensions to the negotiation moratorium can be
obtained only in certain circumstances as discussed in the
February 12, 1987 "Interim Guidance: Streamlining the CERCLA
Settlement Decision Process." 10
The timing of special notice letters will have a significant
affect on our ability to successfully conclude negotiations at
the end of the moratorium period. The Streamlined Settlement
Policy provides for two different processes for obtaining
extensions for the RI/FS and RD/RA moratoriums. The policy
indicates that the Regional Administrator has the discretion to
terminate or extend negotiations for the RI/FS after 90 days.
However, extension of negotiations beyond an additional 30 days
should be authorized by the Regional Administrator only in
limited cases.
Relating to the RD/RA moratorium, the Streamlined Settlement
Policy provides for either Regional or Headquarters approval of
an extension under certain circumstances. An extension to the
120 day RD/RA moratorium may be granted for an additional 30 days
by the Regional Administrator when settlement is likely and
imminent. An additional extension beyond the 30 days may be
approved only by the Assistant Administrator for the Office of
Solid Waste and Emergency Response (OSWER) and only in rare and
extraordinary circumstances.
This guidance re-emphasizes the importance of meeting the
90 day moratorium for the RI/FS and the 120 day moratorium for
the RD/RA. To aid that policy, this guidance identifies three
circumstances where the Regional Administrator and Assistant
Administrator for OSWER may consider granting such extensions for
the RD/RA moratorium.
10 This guidance was issued under OSWER Directive 19832.9.
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24
First, it may be appropriate for the Regional Administrator
or the Assistant Administrator to extend the 120 day moratorium
for the RD/RA if EPA selects a remedy in the ROD which is
significantly different from the Agency's stated preference in
the proposed plan. This could mean that the focus of
negotiations could change significantly, requiring additional
time to reach agreement with PRPs.
The second example applies to Fund-lead sites. It nay be
appropriate, for the Regional Administrator or the Assistant
Administrator to extend the 120 day negotiation moratorium for
the RD/RA if non-enforcement activities at the site (e.g. an
extended public comment period or an extended ROD review and
approval process) cause a significant delay in the Agency's
ability to move forward in implementing a Fund-financed remedy.
An extension to the negotiation moratorium may be especially
appropriate if there is reason to believe a negotiated settlement
is imminent. In other words, if .the Fund is not ready to move
forward in implementing the remedy at the end of the 120 day
negotiation moratorium there is no reason to conclude
negotiations if there is reason to believe an agreement can be
reached.
i 1
The third example applies to enforcement-lead sites. It may
be appropriate for the Regional Administrator or the Assistant
Administrator to extend the 120 day negotiation moratorium for
the RD/RA after a §106 litigation referral has been prepared and
referred to the Department of Justice (DOJ) for action. In fact,
the preparation and referral of a case to DOJ nay be an important
mechanism for providing the necessary impetus for reaching a
voluntary settlement. In many cases it may be appropriate to
issue a unilateral administrative order concurrent with the
referral.
VI. NOTICE LETTERS AND NEGOTIATION MORATORIUM FOR REMOVAL
ACTIONS
The notice letter process for removal actions differs from
the notification process for remedial actions. As discussed
above, the notification process for remedial actions involves
issuance of three notice letters. The.notification process for
removals will involve only one notice letter which nay or may not
invoke the 1122(e) special notice procedures as discussed below.
A. NOTICE LETTERS
1. Whether to Issue Removal Notice
The Regions should attempt to contact PRPs prior to
initiating a Fund-financed removal action to inform PRPs of their
potential liability where EPA will incur response costs or
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25
to secure a private party response. This guidance encourages the
Regions to seek PRP response through a written notice letter but
the Regions may contact PRPs verbally (with a written follow-up
notice) . This is consistent with the guidance on "Issuance of
Administrative Orders for Immediate Removal Actions" (2/21/84).
The Regions should issue notice letters to readily
identifiable PRPs for removal actions in the vast majority of
cases. The content of the notice will vary depending whether the
notice will be used simply to notify PRPs of their potential
liability for an action EPA has already taken or is about to •
take, whether the notice will be used to encourage • private
party response through "informal" negotiations (i.e. negotiations
not triggered by the §122(e) special notice procedures), or
whether the notice will be used as a mechanism for invoking the
5122(e) special notice procedures which provide for "formal"
negotiations between EPA and PRPs.
2. When to Use Special Notice Procedures for Removals
The Regions should consider using the §122(e) special notice
procedures only for those removals where the threat is of a
nature that it is not necessary to initiate an onsite removal
action for at least six months. The "six month planning time
period" begins once the site evaluation is completed. This means
that for the vast majority of removal actions the Regions will
not be required to utilize the special notice procedures. It is
not appropriate to utilize special notices for most removal
actions because the subsequent moratorium may interfere with the
Agency's ability to implement the remedy in a timely manner. In
addition, it may not be worth expending the time and resources to
enter into formal negotiations when a removal will be a
relatively short term and inexpensive response action.
The Regions should include the following factors in their
determination of whether it is appropriate to utilize the special
notice procedures for removals with a six month planning lead
time: 1) whether viable PRPs have been identified, 2) whether
the PRPs are expected to respond favorably to the invitation to
participate in negotiations and to conduct or finance the removal
action. 3) whether issuance of the special notice could delay
implementation of the removal action, and 4) whether it may be
more appropriate to enter into "informal" negotiations in lieu of
"formal" negotiations under §122(e).
In determining the PRPs viability, the Region should inquire
about the PRPs financial and technical capability for conducting
and/or financing the removal action in an effective and timely
manner. In determining the PRPs willingness to undertake or
finance the removal action, the Region should, at a minimum,
obtain a verbal agreement from the PRPs prior to issuance of the
special notice. In determining whether the special notice may
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26
delay implementation of the remedy or in determining whether to
enter into "informal" rather than "formal" negotiations, the
Regions should consider whether the 5122(e) negotiation
moratorium would interfere with other activities at the site.
3. Notifying PRPs When Not Appropriate to Utilize
Special Notice Procedures for Removals
EPA's decision on whether to use the special notice
procedures for any response action is clearly discretionary.
However, 5122(a) requires the Agency to notify PRPs in writing
when the Agency decides not to utilize such procedures. The
removal notice provides a convenient vehicle for informing PRPs
of EPA's decision not to utilize the special notice procedures.
The notice should, therefore, inform PRPs of EPA's decision not
to utilize such procedures when this determination has been made
and should provide an explanation for that decision.
4. DOJ Role in Removal Negotiations
The Regions should consult with the Chief of the
Environmental Enforcement Section of DOJ prior to issuing a
special notice letter for removal actions where settlement by
consent decree is contemplated, or where the settlement is
expected to involve a compromise of past or future response costs
and the total response costs will exceed $500,000. The Regions
should consult with DOJ prior to releasing a draft consent decree
to PRPs.
5. Timing of Removal Notice
A removal notice that does not invoke the special notice
procedures should be provided to PRPs as soon as practicable.
For removal notices that invoke the special notice procedures,
the notice should be issued as early as possible but no later
than 120 days before the scheduled date for initiating the
removal action. The scheduled date for initiating the removal
action is the date removal extramural cleanup contractor funds
will be obligated and onsite cleanup will begin.
The timing of a notice which invokes the special notice
procedures is critical because issuance of the notice triggers
the subsequent 60 to 120 day moratorium on EPA conduct of the
removal action. (The moratorium would last only 60 days in
instances where the PRPs do not provide EPA with a "good faith
offer"). Issuing the special notice at least 120 days before BPA
will begin the removal ensures that the subsequent 120 day
moratorium does not affect EPA's ability to implement the removal
action in the event negotiations do not result in an agreement
for PRP conduct of the removal action.
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27
6. Recipients of Removal Notice
The removal notice should be sent to all parties where there
is sufficient evidence to make a preliminary determination..of
potential liability under 5107 of CERCLA. If a Federal agency
has been identified as a generator at a facility not
owned/operated by the Federal agency, such agency should be
routinely notified like other PRPs.
Copies of removal notices should be provided to the Regional
administrative record coordinator, the appropriate State
representative, and to headquarters. Providing copies to the
administrative record coordinator is important for ensuring that
the notice to be placed in the record. Providing copies to the
State representative is important for ensuring that States are
appropriately informed about possible future negotiations.
Providing copies to the Information Management Section
within the Program Management and Support Office of the Office of
Waste Programs Enforcement for entry into the Superfund
Enforcement Tracking System (SETS). Copies should be sent to
OWPE at the same time they are sent to PRPs. Providing copies to
OWPE is essential for facilitating our efforts to track site
activities and to respond to Congressional and other inquiries.
It is not necessary to provide copies of each removal notice
to the administrative record .coordinator, State representative,
State or Federal trustee, or "headquarters in instances where
identical notices are provided to multiple PRPs. Where there are
multiple PRPs at a site, a copy of one removal notice with a list
of other parties who have received the letter would suffice.
7. Contents of Removal Notice
As indicated, the content of the removal notice -will vary
depending upon whether the purpose of the letter is to simply
inform PRPs of their potential liability or whether the letter
will also be used to provide an opportunity for PRP involvement
in negotiations either through "informal" or "formal"
negotiations. The following highlights the components that
should be included in the three different types of removal
notices. The specific content of each component of the removal
notice should be essentially the same as described earlier for
RI/FS and RO/RA general and special notices, except where
otherwise specified.
a. Notice of potential liability; If the purpose of the
removal notice is simply to inform PRPs of their potential
liability and to provide notice that the Agency has or is about
to take a response action, the notice should contain the
following components: a notice of potential liability; a
discussion about site response activities that have been or will
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28
be conducted at the site; a notice on the availability of an
administrative record; and a notice pursuant 5122 (a) that the
special notice procedures will not be used.
The notification under 5122(a) should inform PRPs that the
Agency will not (or did not) use the 5122(e) special notice
procedures for this particular response action and should provide
an explanation for that decision. The letter should indicate
that it is the Agency's policy not to use the special notice
procedures for removals unless there is a six month planning lead
time prior to the initiation of the response action. If the
response action does involve a removal with • six month planning
lead time but the Agency made a case-specific determination not
to use the special notice procedures, the letter should provide
an explanation why the use of such procedures was determined to
be inappropriate for that particular response action.
b. Notice of potential liability and opportunity to enter
into "informal" negotiations; If the purpose of the removal
notice is to inform PRPs of their potential liability and to
provide PRPs with an opportunity to enter into negotiations with
EPA without invoking the 5122(e) special notice procedures, the
notice should contain the following components: a notice of
potential liability; a discussion about site response activities
that will be conducted at the site; a copy of the statement of
work or workplan and draft administrative order on consent; a
notification pursuant to 5122(a) that the special notice
procedures will not be used;*a request that PRPs notify EPA
within a specified period of time of their interest to
participate in negotiations; a notice on the availability of the
administrative record; and information on the EPA representative
to contact. The 5122(a) notification should contain the same
information discussed in the proceeding paragraph.
c. Notice of potential liability and opportunity to enter
into "formal" negotiations pursuant to i!22(e) special notice
procedures; If the purpose of the removal notice is to inform
PRPs of their potential liability and to provide PRPs with an
opportunity to enter into negotiations with EPA using the f!22(e)
special notice procedures, the notice should contain the
following components: a notice of potential liability; a
discussion about site response activities that will be conducted
at the site; a discussion about the special notice procedures and
the negotiation moratorium; a copy of the statement of work or
workplan and draft administrative order on consent; a discussion
about what constitutes a "good faith offer"; a request that PRPs
notify EPA within a specified period of time indicating their
interest to participate in negotiations; a notice on the
availability of the administrative record; and information on the
EPA representative to contact. The "good faith offer" should
contain essentially the same components as described above for
the RD/RA.
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29
B. CONCLUSION OF NEGOTIATION MORATORIUM AND
DEADLINE MANAGEMENT FOR REMOVALS
At the conclusion of the 5122(e) negotiation moratorium for
removal actions, the Regions should have a fully negotiated
administrative order on consent which has been signed by the
PRPs. (Where appropriate, a signed consent decree should be
provided). A signed administrative order on consent (or a
consent decree) will show that the negotiations have been
successfully completed.
The expectation is that the negotiations will be concluded
at the end of the 120 day moratorium and the Regions are strongly
encouraged to conclude the negotiations within this period of
time. In instances where the negotiations do not result in an
agreement, the Regions may seek an extension to the 120 day
moratorium, issue an administrative order, or proceed with a
Fund-financed removal. Note that the Regional Administrator may
grant an extension to the 120 day moratorium only in limited and-
appropriate circumstances.
C. ADMINISTRATIVE ORDERS AMD NEGOTIATION MORATORIUM
FOR REMOVALS
In most instances, use of the special notice procedures for
removal actions will not affect existing policy on issuing
administrative orders for removals since the special notice
procedures will be issued for only a small portion of removals.
For details on the Agency's policy on administrative orders refer
to the guidance on "Issuance of Administrative Orders for
Immediate Removals" (2/21/84) .
It is necessary, however, to modify existing policy in one
respect. In instances where Regions use the special notice
procedures for a removal action and where issuance of an
administrative order is necessary and appropriate, the Regions
should not issue the order until the end of the negotiation
moratorium. This ensures that the negotiation moratorium will be
used to negotiate voluntary settlements.
VII. DISCLAIMER
The policies and procedures established in this document
are intended solely for the guidance of Government personnel.
They are not intended and can not be relied upon to create any
rights, substantive or procedural, enforceable by any party in
litigation with the United States. The Agency reserves the right
to act at variance with these policies and procedures and to
change them at any time without public notice.
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30
VIII. FOR FURTHER INFORMATION
For further information or questions concerning this
guidance, please contact Kathy MacKinnon in the Office of Waste
Programs Enforcement at FTS-475-6770.
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Appendix A
Timing of RD/RA Special Notice Utter
-------
A. General Approach: Issue RD / RA Special Notice When Release
Draft FS and Proposed Plan
Selection of Remedy Process
Conduct
RI/FS
Review/
Release
FS/Pcoposed
Plan
Public
Com-
•*%^^«*>
morn
DAU|AAM
• rmvHiw
ROD
Conduct /
RD \
Notice and
Negotiation
Moratorium
Extended
Negotiation
Moratorium
Special Notice / Negotiation Moratorium
J _
18
19
20
21
22
23
24
25
26
27
Timeline (Months)
28
29
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B. Alternative Approach: Issue RD / RA Special Notice Prior to
Release of Draft FS and Proposed Plan
Selection of Remedy Process
Conduct
RI/FS
Review/
Release
Screening
of Alternatives
Review/
Release
FS/Proposed
Plan
Public
Com-
mon!
Review
ROD ..
Conduct /
RD \
Notice and
Negotiation
Moratorium
Extended
Negotiation
Moratorium
Special Notice / Negotiation Moratorium
18 19 20 21 22 23 24 25
Timeline (Months)
26
27
28
29
-------
C. Alternative Approach: Issue RD / RA Special Notice Once ROD
Signed
Selection off Remedy Process
Conduct
RI/FS
Review/Release
FS/Proposed
Plan
Public
Com-
ment
Review
ROD
Conduct /
RD \
Notice and
Negotiation
Moratorium
Extended
Negotiation
Moratorium
Special Notice / Negotiation Moratorium
* I _ ^
18 19 20 21 22 23 24 25
Timeline (Months)
26 27
28
29
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Appendix B
PRP Settlement Process for RI/FS and
RD/RA
-------
PRP Settlement Process for Rl / FS
601%
Conduct Rl
-------
PRP Settlement Process for RD/RA
-------
\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
o
October 20,1987
MEMORANDUM
SUBJECT: Evaluating Mitfed Funding Settlements Under CERCLA
^
FROM: J. WiB¥€dn'Porterr
Assistant Administrator
Office of Solid Waste and Emergency Response
Thomas L. Adams, Jr.
Assistant Administrator
Office of Enforcement and Compliance Monitoring
TO: Regional Administrators, Regions I-X
I. Introduction
This document provides guidance for use when a party
proposes, as part of a settlement negotiation, that both
private and Fund resources be used at a site. This type
of arrangement is generally referred to as a "mixed funding1
settlement. Section 122(b) of the Comprehensive Environ-
mental Response, Compensation and Liability Act, as
amended by the Superfund Amendments and Reauthorization
Act of 1986 (hereinafter cited as "CERCLA") provides
explicit authority for the Government to enter into these
types of arrangements.
The primary goals of this guidance are to:
1) Encourage the Regions to consider mixed funding
settlements, based on the statutory approval
of these settlements in §122(b) of CERCLA;
2) Present a method for Regional enforcement person-
nel to analyze mixed funding in the context of
a settlement offer, and
3) Indicate broad Agency preferences by specifying
acceptable and poor candidates for mixed funding
in general.
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-2-
Historically, the term "mixed funding" has been used to
describe three types of arrangements. Section 122(b)(l) of
CERCLA describes one mixed funding arrangement, in which one
or more of the potentially responsible parties (PRPs) agree to
perform a response activity and the Agency agrees to reimburse
those PRPs for a portion of their response costs. In such
cases, the statute provides that the cost incurred by the Fund
be recovered from non-settlors when possible.
Settlement agreements involving cleanups by PRPs and
reimbursement of their response costs require the Agency to
"preauthorize" the claim against the Fund prior to the initiation
of the response action. The term "preauthorization" refers to
the approval that must be granted by the Agency prior to cleanup
actions if a claim for response costs is to be considered against
the Fund. If preauthorization is granted, it serves as an Agency
commitment that, if response costs are conducted pursuant to the
settlement agreement and the costs are reasonable and necessary,
reimbursement will be available from the Fund as dictated by the
agreement, subject to the availability of appropriated monies.
Two other kinds of settlement agreements also constitute
forms of mixed funding, but do not require preauthorization.
Section 122(b)(3) describes one type of arrangement, in which
the Agency conducts the response action and the PRPs pay the
Agency for a portion of the costs. This type of settlement
is known as a settlement for cash, or "cash-out." A third
type of mixed funding, known as "mixed work," involves an
agreement which addresses the entire response action, but
the PRPs and the Agency agree to conduct and pay for discrete
portions or segments of the response action. The term "mixed
funding", as used in this document, applies to any of the
aforementioned types of settlements. It should be noted,
however, that §122(b)(4), concerning future obligation of the
Fund for remedy failure, only applies to mixed funding in the
form of preauthorization, as described in §122(b)(l).
As noted above, the 1986 Amendments to CERCLA included
an explicit statutory authorization of mixed funding settle-
ments. Prior to these Amendments, the primary document which
made reference to mixed funding was the Interim CERCLA Settle-
ment Policy (50 FR 5034). This policy set out ten criteria
to use when evaluating a settlement offer for less than 100%
of the cost or cleanup at a site. In mixed funding settle-
ments, the PRPs agree to pay for a portion of the response
cost, and may conduct some or all of the response action.
A major portion of this guidance addresses the application
of the Interim Settlement Policy to mixed funding settlements.
Section II outlines the key principles underlying the Agency's
Interim Settlement Policy, and the role of mixed funding within
these general principles. Section III then provides an approach
for applying the ten settlement criteria to mixed funding settle-
ment offers in general (e.g., without regard to any specific
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-3-
funding arrangement.) This section first highlights factors
of key importance to mixed funding settlements, and then
suggests the Agency's preferences among various combinations
of these factors.
Section IV identifies criteria to be used to determine
if a particular type of mixed funding is appropriate for a
site, and then lists secondary considerations related to all
mixed funding settlements. Section V outlines the general
procedure for review and approval of mixed funding.
II. The Role of Mixed Funding in the CERCLA Cleanup Program
The Interim CERCLA Settlement Policy identified nego-
tiated private response actions as an essential component of
the Agency's overall program for obtaining cleanup of the
nation's hazardous waste sites. This program, to be effec-
tive, depends upon a balanced approach, which includes a mix
of Fund-financed cleanups, enforceable settlement agreements
reached through negotiations, and litigation. Expeditious
cleanups reached through negotiated settlements are preferable
to protracted litigation.
Section 122 of the 1986 Amendments, which is devoted
entirely to settlement issues, indicates Congressional
affirmation of the emphasis in the Interim Settlement Policy
toward increased flexibility in settling CERCLA cases in
order to expedite cleanups. Like the Interim Settlement
Policy, §122 covers a wide range of mechanisms designed
to promote settlements. In particular, in §122(b), Congress
acknowledged the need to consider settlements for less than
100% of the costs of cleanups"...by using monies from the Fund
on behalf of parties who are unknown, insolvent, similarly
unavailable, or refuse to settle." (See the Conference Report
on Superfund Amendments and Reauthorization Act of 1986, 99
Cong., 2d Sess. Report 99-962 pp. 183, 252 (1986).)
The Agency encourages the use of mixed funding to promote
settlement and hazardous site cleanup. For example, preauthori-
zation offers the advantage of PRP performance of the response
activity and funding of a substantial portion of the response
costs, thus conserving Agency resources for use at other
sites. In addition, §122(b)(l) requires the Agency to make
all reasonable efforts to recover these costs. The Agency
will therefore pursue nonsettlors to make the Fund whole,
unless it would be unwarranted to undertake such efforts. To
the extent that mixed funding reduces the number of PRPs to be
sued in such cost recovery cases, it will also reduce the
Agency's costs for litigation.
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-4-
Support of mixed funding as a settlement tool, however,
does not imply that the standard and scope of liability under
CERCLA has changed. As established by court decisions prior
to the 1986 Amendments, PRP liability under CERCLA remains
strict, joint and several, unless the PRPs can clearly .
demonstrate that the harm at the site is divisible. Thus,
the Agency will assess mixed funding settlements in a manner
consistent with the Interim Settlement Policy, where complete
cleanup or collection of 100% of costs remains a primary goal.
For example, the Agency will not approve mixed funding
simply on the basis that a share of wastes at a site may be
attributable to an unknown or financially non-viable party.
The Agency may conduct an allocation of liability among PRPs
at a site, or may evaluate the PRP's allocation and allow
volume to be considered as one factor used to assess the
reasonableness of the PRPs1 offer. However, the availability
or the amount of any Fund-financing for a particular site
will not be dependent solely on consistency with any volume-
tric or "fair-share" allocation. The Agency may, as a policy
decision, determine that mixed funding is the best method
to promote cleanup at a particular site, based on the total-
ity of the circumstances. Mixed funding should be viewed
as one tool, approved by Congress, to be used to promote
settlements in the context of the existing Interim Settle-
ment Policy.
Section 122 also contains settlement provisions related
to: a) de minimis settlements [§122(g)l, in which parties
who are liable for only a minor portion of the hazard or
cost of cleanup at a site may resolve their liability to
the Government in an expedited process; b) non-binding
allocations of responsibility (NBARs), t§122(e)(3)], which
involve a discretionary EPA allocation of the total res-
ponse costs among PRPs at a site; and c) covenants not to
sue, [§122(f)], in which the Government agrees to certain
releases from liability at a site.
These settlement mechanisms may influence the decision
as to whether a settlement should include mixed funding. Thus,
the use of mixed funding at a site should be evaluated both in
the context of §122 as a whole, which encourages settlement in
general, as well as individual §122 settlement provisions and
their relevance to the proposed mixed funding settlement.
For further guidance on these settlement provisions,
see "Interim Guidelines for Preparing Non-Binding Preliminary
Allocations of Responsibility (NEAR)," 52 FR 19919; "Interim
Guidelines on Settlements with De Minimis Waste Contributors
under Section 122(g) of SARA," Adams/Porter, June 19, 1987;
"Covenants Not to Sue Under SARA," Adams/Porter July 10, 1987.
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-5-
III. Assessment of Mixed Funding Settlement Proposals
Using the Interim Settlement Policy Criteria
In the evaluation of a proposed mixed funding settlement,
Agency enforcement personnel should first focus on the quality
of the overall settlement offer. Thus, the initial determin-
ation in each case will not be whether a particular type of
mixed funding should be used, but whether the underlying
offer for a mixed funding settlement is a good one. This
determination should be made by applying the ten settlement
criteria set out in the Interim Settlement Policy.
The factors and hypothetical examples set forth below
provide guidance as to how to apply the ten settlement cri-
teria to settlement offers in which PRPs have requested
some form of mixed funding. The Agency does not intend to
limit the availability of mixed funding to the fact patterns
described belowj, but recommends the following approach as a
means of focusing the analysis of the settlement. Regions
must continue to consider the totality of the circumstances
for each mixed funding settlement offer.
In settlement offers in which any form of mixed funding
is proposed, factors of primary importance include:
0 Strength of the liability case against settlors and any
non-settlors. This factor includes:
- litigative risks in proceeding to trial against
settlors, and
- the nature of the case remaining against non-
settlors after the settlement;
0 Government's options in the event settlement nego-
tiations fail (e.g., if a state cost-share will be
available for a Fund-lead action);
0 Size of the portion or operable unit for which the
Fund will be responsible (or the amount of the PRP's
offer);
0 Good-faith negotiations and cooperation of settlors
and other mitigating and equitable factors.
The following examples indicate the combinations of
the above factors which may be considered acceptable candidates
for any type of mixed funding, and those cases considered
poor candidates for mixed funding:
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-6-
Acceptable Candidates for Mixed Funding
The best candidates for mixed funding are cases in which
the following features are present:
0 The potential portion or operable unit to be covered
by the Fund is small, or the settling PRPs offer a
substantial portion of the total cost or cleanup.'
In this context, substantial portion may be defined
as a commitment by the PRPs to undertake or finance
a predominant portion of the total remedial action.*
0 The Government has a strong case against financially
viable non-settling PRPs, from which the Fund por-
tion may be recovered.
While this combination of factors represents the optimum
conditions under which mixed funding may be approved, cases
will more typically involve one or more variations of this
scenario. Thus, the Agency anticipates that a range of
cases will be considered acceptable candidates for mixed
funding. The following examples indicate the circumstances
under which a mixed funding settlement may represent the
Government's preferred alternative:
Example one:
A strong case against potential settlors may
initially weigh in favor of litigation, especially
if the case against non-settlors is weak. .However,
a mixed funding settlement may still be acceptable
upon evaluation of additional factors, such as:
0 The settling PRPs offer to conduct or
pay for a substantial portion of the
response;
0 Public interest considerations (e.g.,
if settlement would expedite cleanup
and/or a §104 Fund-financed action is
not feasible);
• Whether settlors have negotiated in good-faith;
0 The Government's time and resources -saved by
simplification or avoidance of litigation.
* As noted later, the Agency's preference is for the
PRPs to perform the response action, rather than
finance a Governmental response action.
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-7-
Example two:
If a substantial portion of the waste at a site
cannot be attributed to known and financially-viable
parties, as determined, for example, by a preliminary
nonbinding allocation of responsibility by the Govern- *
ment), the Agency may initially consider pursuing the
recovery of all costs under joint and several liability.
However, if the litigative risks appear substantial, a
mixed funding settlement may represent more than the
Government would recover in litigation, especially when
the cost and time required for litigation is considered.
Litigative risks which may weigh in favor of settle-
ment include:
0 Weak evidence against financially viable potential
settlors;
e
Equitable considerations which weigh against
the imposition of joint and several liability.
In addition, if the hazard at the site is serious
and no Fund-financed response is possible, a delay
in the response action pending the conclusion of
litigation might represent an unacceptable risk to
the public and the environment.
Poor Candidates for Mixed Funding
Cases considered poor candidates for mixed funding
have the following features:
0 The case against settling parties is strong, and thus
the potential for successful litigation is high;
0 The potential Fund portion is large (e.g., the
potentially settlors' offer is insufficient.)
These factors do not automatically preclude mixed funding
for a case. However, for mixed funding to be seriously
considered in such instances, other compensating factors
must be present, such as the ability of the settlors to
initiate the response action more quickly than the Government
in a Fund-financed action.
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-8-
IV. Selection of the Mixed Funding Technique
As noted in the Introduction, the term mixed funding has
been used to refer to three different types of settlement
arrangements:
1) Preauthorization, in which the PRPs conduct the..res-
ponse action and the Agency agrees to allow a claim
against the Fund for a portion of the response costs;
2) Cash-outs, in which the PRPS pay for a portion of the
response costs up front, and the Agency conducts the
response action;
3) Mixed Work, in which the PRPs and the Agency each
agree to conduct discrete portions of the response
activity.
Once Regional enforcement personnel have determined
that a mixed funding settlement is appropriate, based on
the settlement criteria as described in Section III and
the Interim Settlement Policy, then the Agency must decide
which type of mixed funding best suits the situation at
hand. Among the three major types of mixed funding, the
Agency generally prefers preauthorization, since the PRPs
conduct the response action. However, as noted below, cash-
outs and mixed work may be appropriate under certain cir-
cumstances.
PREAUTHORIZATION
The assessment and approval of preauthorization, once
a mixed funding settlement is approved, is a two-part
process. The first stage, as described below, is the det-
ermination by the Agency enforcement personnel that pre-
authorization is appropriate in the context of the
settlement as a whole. The second stage represents the
actual process of preauthorization of the claim against
the Fund by the Office of Emergency and Remedial Response
(OERR) (see Section V.) The Response Claims regulations,
which are presently in draft form, will provide guidance on
the preauthorization process itself.
a) Technical and timing concerns related to preauthorization
For the first stage of the review, the nature of the
proposed remedy and the PRPs' ability to perform it in a
timely manner are major factors to consider when assessing a
settlement offer which contemplates preauthorization. In
addition, the size of the PRPs' portion is important. When
PRPs are responsible for a sufficiently high percentage,
they will have a strong economic incentive to keep the actual
response costs within or close to estimates. The nature and
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-9-
the severity of the threat posed by the site may also weigh in
favor of settlement, if preauthorization would increase the
speed at which the hazard could be addressed. For example,
prompt initiation of the remedial action would be of particular
importance for sites which are not currently scheduled for
full Fund-financing.
On the other hand, Regional negotiators must also consider
the time required for the preauthorization process itself when
determining if preauthorization is appropriate for particular
types of response actions. While the Agency has set a goal
of completing review of individual preauthorization applica-
tions within a 45-day period, this timing limitation will vary
on a case-by-case basisJ The Agency is unlikely to have time
to consider preauthorization requests when action is required
to avert an immediate threat to the public health or the
environment, therefore, no reimbursement would be possible.
Regions should anticipate the processing time in managing
negotiations.
b) Availability of preauthorization for various response
actions
For agreements involving activities such as an RI/FS or
a removal, preauthorization in general will not be warranted,
because the process of preauthorization. will usually prove
too burdensome for the small amounts or short time-frames
often encountered in these cases. Limited exceptions may
be considered in unusual circumstances, as where preauthori-
zation will facilitate a broader agreement (e.g., an area-wide
RI/FS) which will be less resource intensive than several
agreements of smaller scope. A large, extensive removal (e.g.,
greater than $2 million) may also qualify as an extraordinary
circumstance justifying preauthorization. However, Headquarters
approval must be obtained before preauthorization may be offered
during negotiations for such activities.
c) Covenants not to sue for preauthorization settlements
For1 preauthorization of remedial design and remedial
action (RD/RA) activities, the statute contains a specific
provision related to remedy failure. Section 122(b)(4) of
CERCLA states that for cases involving preauthorization, as
described in §122(b)(l), the Fund will be responsible for
costs of remedy failure, up to a proportion equal to that
contributed for the original remedial action. This section
also states that the Fund portion may be met either through
Fund expenditures or by recovering such costs from parties
who were not signatories to the original agreement. However,
it should be noted that remedy failure due to negligence of
the PRP will not trigger any Fund obligation. In any case,
a covenant not to sue granted in preauthorization settlements
must comport with Agency guidance on covenants not to sue,
as cited above.
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-10-
d) Settlement provisions needed to process claims
Settlement agreements involving preauthorization should
contain the following restrictions to facilitate the
processsing of claims:
0 Settlement agreements should specify a percentage of
the total estimated cost to be included in the pre-
authorization claim for PRP reimbursement, subject
to a maximum dollar limit.
0 Claims against the Fund are not subject to the
§104(c)(3) requirement that States contribute
10% of the cost of the remedial action. However,
prospective claimants are encouraged to file a!
letter of cooperation from the State along with
their request for preauthorization. This letter
should describe any agreements resulting from the
claimants' consultation with the State, including
any State assurance of cooperation with the reme-
dial action. Further, all actions conducted pur-
suant to a preauthorized claim must be consistent
with the NCP and the proposed draft Response
Claim regulations, when promulgated.
0 Claims may be filed only for costs incurred after
the date of preauthorization. Parties will not be
eligible to make a claim against the Fund until
the entire cleanup or agreed-upon preauthorized
phase (e.g., an operable unit) is completed
according to specifications set out in the settle-
ment agreement and the Preauthorization Decision
Document.
• Applicants must demonstrate that their proposed
response costs are reasonable. The applicant should
justify any proposal to perform an activity in-house,
or to contract it out. Applicants may look to Federal
and State procurement practices for guidance on how
to meet EPA's objectives in the area of contracting
and subcontracting.
0 PRPs must be financially and technically capable
of implementing all of the agreed upon response
action. Parties may be required to submit finan-
cial assurances or performance bonds to substan-
tiate their financial capability for completing
the response action.
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-11-
CASH-OUTS
For settlement proposals involving a cash-out by some
of the PRPs, the nature of the remedy and the public interest
factors are generally not decisive, since the Government will
be conducting the response action. Thus, of the criteria in
the Interim Settlement Policy noted in Section III, the-*key
issues in these agreements include:
0 The percentage of the total costs to be paid by
settlors (i.e., a substantial portion should be
offered);
0 The Agency's level of confidence in information
related to liability and cost estimates at the tine
of settlement;
0 Equitable considerations for both the settling and
non-settling parties, including the nature of any
covenants not to sue in the cash-out settlement.
In general, cash-out settlements may occur at any stage
of the remedial process. Such offers should generally be
assessed in light of the criteria in Part IV of the Interim
CERCLA Settlement Policy. It is important to note that,
once a Fund-lead response action is ongoing, the potential
benefit of mixed funding as a means of expediting cleanup is
largely eliminated. In addition, a cash-out of some of the
PRPs during the response action may serve to fragment the
Government's enforcement proceedings, since cost recovery
will generally be pursued once the remedial action is completed.
Other issues related to cash-outs include:
a) Information needs related to cash-out settlements
One example of the use of cash-out settlements could
involve PRPs which have contributed a low percentage of the
waste to a site, and are not technically or financially
capable of conducting the entire response action (e.g.,
preauthorization is not an option.) In order for this
type of settlement to be appropriate for both settling
and non-settling responsible parties, the Agency should
have sufficient information to determine a settlement
amount for the settlors as a group. This amount should be
based on the Settlement Policy, and should include their
waste contribution and other relevant information. Thus,
the Agency should have a fairly high level of confidence in
the information concerning the liability at the site and
the expected cost of the remedy in order to determine
an appropriate cash-out settlement.
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-12-
The settlement may include a risk premium which may
partially offset the Government's risk due to uncertainties
such as remedy failure or cost overruns, as well as uncertainties
which may be present if the necessary information is less
than complete.
b) Covenants not to sue in cash-out settlements
The sufficiency of the Agency's information related
to PRP liability and the nature, stage of development and
the cost of the potential remedy has particular bearing on
the scope of any covenant not to sue in cash-out settle-
ments. In general, if the Agency has only limited infor-
mation in these areas (e.g., if the cash-out, settlement
entered into early in the remedial process), then covenants
not to sue should contain appropriate reopeners to reflect
this uncertainty. In reference to these reopeners, it is
important to note that the obligation of the Fund to pay
for a portion of any costs incurred due to remedy failure,
under §122(b)(4), is limited to mixed funding in the form
of preauthorization under §122(b)(l). Thus, for cash-outs,
the statute does not limit the potential PRP liability for
costs resulting from remedy failure. Any future obligations
will be specified in the cash-out agreement, including the
covenants not to sue. Further guidance concerning covenants
not to sue is provided in the Agency guidance "Covenants
Not to Sue Under SARA" cited above.
In addition, although cash-out settlements need not
involve de minimis parties, as defined by §122(g), similar
analytical factors are important in both instances. Thus,
Agency guidance entitled "Interim Guidelines on Settlements
with De Minimis Waste Contributors under Section 122(g) of
SARA", cited above, may also be helpful for cash-out
settlements.
c) State cost-share requirements for cash-out settlements
When the Federal government uses its response authority
to conduct a remedial action, §104(c)(3) of CERCLA requires
that the State "pay(s) or will assure payment* of 10% of
the remedial action, including all future maintenance, or
50% or greater for sites involving a state operated fac-
ility. Since cash-out settlements involve PRP payment
toward a federally-conducted remedial action, the appli-
cable cost share is required for these settlements. The
cost-share will be calculated using the total remedial
costs, rather than a percentage of the Fund share alone.
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-13-
There are a variety of ways that the State can "pay
or assure payment" of the appropriate cost-share. For
example, the State, the Federal government and the PRPs
may enter into an agreement under State law and CERCLA in
which the PRPs pay 10% to the State, and the State obligates
the money for use at the site in question. The State may
also use its own funds to pay for any portion of its share
that cannot be paid for by PRPs. In general, cash-out settle-
ments should only be considered when the litigation team is
reasonably certain that the State is willing and able to pay
for its 10% share, although the cost-share need not be part
of the consent decree between the Federal government and the
PRPs.
MIXED WORK
Mixed funding in the form of mixed work may be appropriate
for cases in which the Agency can identify discrete phases
or operable units of the response action. One common example
involves a settlement with the PRPs to conduct the RD/RA
once the Agency has conducted the RI/FS.
A second, more complicated mixed work arrangement could
involve an agreement in which the Agency and the PRPs agree
to conduct separate portions of an area-wide RI. In this
example, the Agency might agree to conduct soil testing if
the PRPs conduct ground-water monitoring. Regional enforce-
ment personnel should be reasonably assured of PRP cooper-
ation and the ability to identify in detail the individual
activities for which each party will be responsible before
entering into any mixed work settlement. In addition, any
covenants not to sue in mixed work settlements should be
clearly limited to the operable units addressed in the agree-
ment. Mixed work should be avoided where there is a significant
potential for delays in response actions as a result of
inadequate coordination or potential conflicts. Thus, due
to the high potential for technical and legal complications,
mixed work in the form of mixed construction should generally
not be considered.
Additional Considerations Regarding Mixed Funding
Operation and Maintenance
For preauthorized settlements, full responsibility
for payment of operation and maintenance (0 & M)
activities remains with the PRPs. In some circumstances,
a State may agree, as a party to the settlement, to
manage 0 & M activities which are financed by PRPs.
The Agency will generally resort to enforcement actions
rather than committing Fund money for cleanup at the
site when both the PRPs and the State refuse to be
responsible for 0 & M.
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-14-
Actions Against Non-settlors
It is the policy of the Department of Justice that the
Federal government will not commit in a consent decree
or other agreement to sue other non-settling parties.
Consistent with this policy, mixed funding settlement
agreements should not contain provisions which commit
the Federal government to sue non-settling parties at
a particular site. At most, the agreement may indicate
that the Government has a "present intention" to sue
non-settlors, subject to the exercise of the Government's
enforcement discretion. Such provisions, however,
must be approved by Headquarters and the Department
of Justice (DOJ) on a case-by-case basis, and may not
be offered in negotiations until such approval is
obtained.
Reservation of Rights
Potential settlors occasionally will agree to allow
the Government to reserve the right to bring an enforce-
ment action against them, contingent upon a certain
event, such as an unsuccessful enforcement action
against non-settlors. Such an arrangement is not
desirable, although it may be acceptable in limited
circumstances. Such an offer should not be used by
settlors as a means of reducing the amount offered up
front. In addition, the negotiation team should
consider the practical problems that might arise in
implementing such an arrangement, including statute
of limitation issues and fragmented enforcement actions
involving successive suits covering similar issues.
The Government generally prefers to settle for a
substantial portion up front, rather than being required
to bring a second enforcement action against settlors
for an additional amount.
Documentation
For preauthorization and mixed work cases in which
the Agency will take enforcement actions against
non-settling parties, the Agency must assure that the
settling PRPs agree to provide the necessary documentation
and any other assistance required for support of the
cost recovery cases. This assistance may include an
agreement to provide witnesses to substantiate response
costs. Government oversight will also be required,
not only to assure that reimbursement by the Government
is appropriate, but also that PRP documentation constitutes
sufficient and admissible evidence for the cost recovery
cases.
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-15-
V. Procedural Considerations for Review of Settlements
Involving Mixed Funding
As noted in Section I, consideration of a site for any
type of mixed funding involves a two-stage process. The
site first should be evaluated to determine if an offer for .
a mixed funding settlement in general (e.g., without regard -
to the particular funding arrangement) should be accepted.
This analysis includes the settlement criteria, with the
hypothetical examples in Section III indicating the Agency's
preferences among various combinations of factors. Once the
Regional enforcement personnel determines that a mixed funding
settlement will be acceptable, then the factors noted in
Section IV should be used to evaluate whether a particular
type of mixed funding is appropriate.
The Agency has developed guidance on streamlining and
improving the CCRCLA settlement decision process, which, in
part, highlights the need for improved preparation for
negotiations and for a more systematic management review
process. (See "Interim Guidance: streamlining the CERCLA
Settlement Decision Process", Porter/Adams, Feb. 12, 1987.)
In keeping with the goals of this improved process, Regions
should conduct both stages of the mixed funding analysis as
early as possible (e.g. , prior to the appropriate special
notice.)
Timely Headquarters and DOJ notification is particularly
important for cases involving preauthorization, since the
use of preauthorization in settlements requires both the
approval of the settlement for preauthorization, as described
above, and the review by OERR of the request for preauthor-
ization itself. Early DOJ involvement is necessary in mixed
funding negotiations, as it is for other types of negotiations.
While the preauthorization process need not be completed at
the time of settlement, the settlement document must describe
the major parameters of the proposed preauthorization agreement.
Therefore, OERR should be contacted once the mixed funding
analysis has been completed and the Region supports further
consideration of preauthorization. For further information
on the draft Response Claims regulations and the procedure
for preauthorization with OERR, contact William 0. Ross,
Office of Emergency and Remedial Response (WH-548), (FTS)
382-4645.
Issues which cannot be resolved at the staff level may
be raised to the Settlement Decision Committee (SDC), a
Headquarters-based review panel. Like all consent decrees,
mixed funding settlements will require final approval by
the Assistant Administrator (AA) for the Office of Solid
Waste and Emergency Response (OSWER), the AA-OECM, and
the Assistant Attorney General for Lands and Natural Resources.
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-16-
If the amount to be paid by the Fund exceeds $750,000 or 10%
of the total response cost (whichever is greater), approval
by the Deputy Attorney General at DOJ will also be required.
Regional enforcement personnel may, of course, decline to
consider mixed funding at a particular site without prior
Headquarters consultation.
VI. Conclusion
Settlement 'agreements incorporating mixed funding
provisions, as described in part under §122(b) of CERCLA,
offer an alternative to either up front Fund financing of
the total costs of response actions at a site, or possible
delays in cleanup resulting from litigation required to
force PRP action. Mixed funding represents one component of
the Agency's comprehensive approach toward increased flexibility
in settling CERCLA cases. This approach originates from
the CERCLA Interim Settlement Policy as well as the codification
of much of this Policy in §122 of the 1986 Amendments.
The assessment of mixed funding for a particular site
must always begin with the determination as to whether any
type of mixed funding settlement is appropriate, based on
the ten settlement criteria. At the broadest level, this
evaluation will involve a determination as to the most
effective means of promoting cleanup at a site while insuring
the most efficient use of the Agency's resources, including
the Fund itself. Regions are encouraged to consider a mixed
funding settlement when an assessment of the settlement
criteria, including the strength of the evidence, the equities
of the settlement, and the public interest, .indicate that
mixed funding is in the best interest of the Government, the
public and the environment.
For further information or questions concerning this
guidance, contact Kathy MacKinnon, OWPE (WH-527) at
FTS: 475-6770.
DISCLAIMER
The policies and procedures established in this document
are intended solely for the guidance of Government personnel.
They are not intended and can not be 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 pro-
cedures and to change them at any time without public notice.
-------
-------
United States
Environmental Protection
Agancy
On>ce of
Solid Wasie and
Emergency Response
vvEPA
DIRECTIVE NUMBER: g834
11
TITLE: Revised Procedures for Inplementing Off-Site
i Response Actions
APPROVAL DATE:
EFFECTIVE DATE:
November 13, 1987
November 13, 1987
ORIGINATING OFFICE: Office of Waste Programs
Enforcement
Q FINAL (Interim)
G DRAFT
i
1 LEVEL OF DRAFT
C2 A — Signed by AA or DAA
D B — Signed by Office Director
DC — Review & Comment
REFERENCE (other documents):
SWER OSWER OSWER
DIRECTIVE DIRECTIVE Dl
-------
ted States Environmental Protection Agency
Washington. DC 20460
OSWER Directive initiation Request
1 Directive Numter
9834.11
2. Originator Information
Mame of Contact Person
NANCY BROWNE
Mail Code
Office
Telephone Code
Title
Revised Procedures for Implementing Off-Site Response Actions
4 Summary of Directive (include bnef statement of purpose)
^S Di£!S:ive descrii*s procedures that should be observed when a response action
under CEROA or Section 7003 of RCRA involves the off-site treatment/storaqT
disposal of CERCLA waste.
or
i Keywords ' " "^ ^
Off-Site Policy, Off-Site Waste, GEROA Waste, Off-Site Management of
>a. Does This Directive Supersede Previous Directive^)1
b Does It Supplement Previous Directive^)'
No
No
Draft Level
A - Signed by AA/DAA
XX yes What directive (number, title)
—' l) Procedures for Planning & Unol.
off-site Response Actions.
2) Providincr Notice to Facilities
Yes (9330 2—5)
3) Eligibility of Facilities in
Assessment Monitoring (9330.2-
fi)
B - Signed by Office Director [ [ C - For Review & Comment I I D - In Development
8. Document to be distributed to States by Headquarters?
—
Yes
X
No
This Request Meeto OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
Date
CPA Form fors-17 (H«v. 5-87) Krevious editions are obsolete.
OSWER OSWER OSWER O
'E DIRECTIVE DIRECTIVE DIRECTIVE
-------
9834.1
REVISED PROCEDURES FOR IMPLEMENTING OFF-SITE RESPONSE ACTIONS
I. INTRODUCTION
The off-site policy describes procedures that should be
observed when a response action under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA)
or Section 7003 of RCRA involves off-site storage, treatment or
disposal of CERCLA waste. The procedures also apply to actions
taken jointly under CERCLA and another statute.
The purpose of the off-site policy is to avoid having
CERCLA wastes contribute to present or future environmental
problems by directing these wastes to facilities determined to
be environmentally sound. It is EPA's responsibility to ensure
that the criteria for governing off-site transfer of CERCLA
waste result in decisions that are environmentally sensible and
that reflect sound public policy. Therefore, in developing
acceptability criteria, the Agency has applied environmental
standards and other sound management practices to ensure that
CERCLA waste will be appropriately managed.
EPA issued the original off-site policy in May 1985. See
"Procedures for Planning and Implementing Off-Site Response
Actions", memorandum from Jack W. McGraw to the Regional
Administrators. That policy was published in the Federal
Register on November 5, 1985. The 1986 amendments to CERCLA,
the Superfund Amendments and Reauthorization Act (SARA),
adopted EPA's policy for off-site transfer of CERCLA wastes,
with some modifications. CERCLA §121(d)(3) requires that
hazardous substances, pollutants or contaminants transferred
off-site for treatment, storage or disposal during a CERCLA
response action be transferred to a facility operating in
compliance with §§3004 and 3005 of RCRA and other applicable
laws or regulations. The statute also requires that receiving
units at land disposal facilities have no releases of hazardous
wastes or hazardous constituents. Any releases from other
units at a land disposal facility must also be controlled by a
RCRA or equivalent corrective action program. While the
original policy required compliance with RCRA and other
applicable laws, SARA goes beyond the original policy,
primarily by prohibiting disposal at units at a land disposal
facility with releases, rather than allowing the Agency to
judge whether the releases constituted environmental conditions
that affected the satisfactory operation of a facility.
The off-site policy has been revised in light of the
mandates of SARA. This revised policy also extends the SARA
concepts to certain situations not specifically covered by the
statute. These requirements apply to CERCLA decision documents
signed, and RCRA §7003 actions taken, after enactment of SARA.
Specifically, this policy covers:
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o Extending SARA's "no release" requirement to all RCRA
units receiving CERCLA waste, not just units at RCRA
land disposal facilities;
o Expanding SARA's release prohibition to include
releases of CERCLA hazardous substances, in addition
to releases of RCRA hazardous waste and hazardous
constituents;
o Addressing releases from other units at RCRA treatment
and storage facilities; and
o Addressing off-site transfer to non-RCRA facilities.
The revised policy also reinterprets the May 1985 policy as it
now applies to CERCLA decision documents signed, and RCRA §7003
actions taken, prior to the enactment of SARA.
The revised off-site policy is effective immediately upon
issuance. It is considered to be an interim policy as key
elements of the policy will be incorporated in a proposed rule
to be published in the Federal Register. As part of that
rulemaking, the policy will be subject to public comment.
Comments received during that period may cause additional
revisions to the policy. The final rule will reflect the final
policy under CERCLA §121(d)(3) and EPA will issue a revised
implementation policy memorandum if necessary.
II. APPLICABILITY
There are a number of variables which will determine
whether and how the off-site policy applies: waste type,
authority, funding source, and whether the decision document or
order supporting the clean-up was signed before or after the
enactment of SARA (i.e., before or after October 17, 1986). In
order to determine which elements of the policy apply to a
specific CERCLA cleanup each factor must be considered.
The first factor to consider is the type of waste to be
transferred. The revised policy applies to the off-site
treatment, storage or disposal of all CERCLA waste. CERCLA
wastes include RCRA hazardous wastes and other CERCLA hazardous
substances, pollutants and contaminants. RCRA hazardous wastes
are either listed or defined by characteristic in 40 CFR Part
261. CERCLA hazardous substances are defined in 40 CFR 300.6.
Because RCRA permits and interim status apply to specific
wastes and specific storage, treatment or disposal processes,
the Remedial Project Manager (RPM) or On-Scene Coordinator
(OSC) must determine that the facility's permit or interim
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status authorizes receipt of the wastes that would be
transported to the facility and the type of process
contemplated for the wastes. Therefore, it is important that
facility selection be coordinated with RCRA personnel.
A CERCLA hazardous substance that is not a RCRA hazardous
waste or hazardous constituent (i.e., non-RCRA waste) may be
taken to a RCRA facility if it is not otherwise incompatible
with the RCRA waste, even though receipt of that waste is not
expressly authorized under interim status or in the permit.
Non-RCRA wastes can also be managed at non-RCRA facilities.
Criteria applicable to CERCLA wastes that can be disposed of at
non-Subtitle C facilities are discussed later in this revised
policy.
The second factor to consider in determining whether this
revised policy applies is the statutory authority for the
action. This revised off-site policy applies to any remedial
or removal action involving the off-site transfer of any
hazardous substance, pollutant, or contaminant under any CERCLA
authority or under RCRA §7003. This policy also applies to
response actions taken under §311 of the Clean Water Act,
except for cleanups of petroleum products. The policy also
covers cleanups at Federal facilities under §120 of SARA.
i
The third factor to assess is the source of funding. The
revised policy applies to all Fund-financed response actions,
whether EPA or the State is the lead agency. The policy does
not apply to State-lead enforcement actions (even at NFL sites)
if no CERCLA funds are involved. It does apply to State-lead
enforcement actions where EPA provides any site-specific
funding through a Cooperative Agreement or Multi-Site
Cooperative Agreement, even though the State may be using its
own enforcement authori-ties to compel the cleanup. Similarly,
non-NPL sites are covered by this policy only where there is an
expenditure of Fund money or where the cleanup is undertaken
under CERCLA authority.
The final factor that affects how this revised policy
applies is the date of the decision document. As noted
earlier, there are two classes of actions subject to slightly
different procedures governing off-site transfer: first, those
actions resulting from pre-SARA decision documents or RCRA
§7003 orders issued prior to October 17, 1986, are subject to
the May 1985 policy as updated by this revised policy; and
second, those actions resulting from post-SARA decision
documents or RCRA §7003 orders issued after October 17, 1986,
are subject to the requirements of SARA as interpreted and
expanded by this revised policy. Although the procedures in
this policy are similar for these two classes of actions, there
are important differences (e.g., the requirements pertaining to
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releases from other units at a facility) that will be
highlighted throughout this document.
Compliance with the revised procedures is mandatory for
removal and remedial actions. However, there is an emergency
exemption for removals if the OSC determines that the
exigencies of the situation require off-site treatment, storage
or disposal without following the requirements. This exception
may be used when the OSC believes that the threat posed by the
substances makes it imperative to remove the substances
immediately and there is insufficient time to observe these
procedures without endangering public health, welfare or the
environment. In such cases, the OSC should consider temporary
solutions (e.g., interim storage) to allow time to locate an
acceptable facility. The OSC must provide a written
explanation of his or her decision to use this emergency
exemption to the Regional Administrator within 60 days of
taking the action. In Regions in which authority to make
removal decisions has not been fully delegated by the Regional
Administrator to the OSC, the decisions discussed above must be
made by the Regional official to whom removal authority has
been delegated. This emergency exemption is also available to
OSC's taking response actions under §311 of the Clean Water
Act.
III. DEFINITIONS
A. Release
For the purposes of this policy, the term "release" is
defined here as it is defined by §101(22) of CERCLA, which is
repeated in 40 CFR 300.6 of the NCP, and the RCRA §3008(h)
guidance ("Interpretation of Section 3008(h) of the Solid Waste
Disposal Act", memorandum from J. Winston Porter and Courtney
M. Price to the Regional Administrators, et al, December 16,
1985). To summarize, a release is any spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injection,
escaping, leaching, dumping or disposing to the environment.
This includes releases to surface water, ground water, land
surface, soil and air.
A release also includes a substantial threat of a release.
In determining whether a substantial threat of release exists,
both the imminence of the threat and the potential magnitude of
the release should be considered. Examples of situations where
a substantial threat of a release may exist include a weakened
or inadequately engineered dike wall at a surface impoundment,
or a severely rusted treatment or storage tank.
De minimis releases from receiving units are exempt; that
is, they are not considered to be releases under the off-site
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policy. De minimis releases are those that do not adversely
affect public health or the environment, such as releases to
the air from temporary opening and closing of bungs, releases
between landfill liners of 1 gallon/acre/day or less, or stack
emissions from incinerators not otherwise subject to Clean Air
Act permits. Releases that need to be addressed by
implementing a contingency plan would not normally be
considered de minimis releases.
Federally-permitted releases, as defined by CERCLA
§101(10) and 40 CFR 300.6, are also exempt. These include
discharges or releases in compliance with applicable permits
under RCRA, the Clean Water Act, Clean Air Act, Safe Drinking
Water Act, Marine Protection, Research and Sanctuaries Act, and
Atomic'Energy Act or analogous State authorities.
For purposes of this policy, an interim status unit in
RCRA ground-water assessment monitoring (under 40 CFR 265.93)
or a permitted unit in compliance monitoring (under 40 CFR
264.99) is not presumed to have a release. EPA will evaluate
available information, including the data which led to a
determination of the need for assessment or compliance
monitoring, data gathered during assessment monitoring, and any
other relevant data, including that gathered from applicable
compliance inspections. A determination of unacceptability
should be made when information will support the conclusion
that there is a probable release to ground water from the
receiving unit. Finding a release can happen at any time
before; during or after an assessment or compliance monitoring
program.
On the other hand, it is not necessary to have actual
sampling data to determine that there is a release. An
inspector may find other evidence that a release has occurred,
such as a broken dike or feed line at a surface impoundment.
Less obvious indications of a release might also be adequate to
make the determination. For example, EPA could have sufficient
information on the contents of a land disposal unit, the design
and operating characteristics of the unit, or the hydrogeology
of the area in which the unit is located to conclude that there
is or has been a release to the environment.
B. Receiving Unit
The receiving unit is any unit that receives off-site
CERCLA waste:
(1) for treatment using BOAT, including any pre-
treatment or storage units used prior to treatment;
(2) for treatment to substantially reduce its mobility,
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toxicity or persistence in the absence of a defined
BOAT; or
(3) for storage or ultimate disposal of waste not treated
to the previous criteria.
Note that the acceptability criteria may vary from unit to
unit, and that the receiving unit may vary from transfer to
transfer.
C. Other Units
Other units are all other regulated units and solid waste
management units (SWMU's) at a facility that are not receiving
units.
D. Controlled Release
In order to be considered a controlled release, the
release must be addressed by a RCRA corrective action program
(incorporated in a permit or order) or a corrective action
program approved and enforceable under another applicable
Federal or delegated State authority.
E. Relevant Violations
Relevant violations include Class I violations as defined
by the RCRA Enforcement Response Policy (December 21, 1984, and
subsequent revisions) at or affecting a receiving unit. A
Class I violation is a significant deviation from regulations,
compliance order provisions or permit conditions designed to:
o Ensure that hazardous waste is destined for and
delivered to authorized facilities;
o Prevent releases of hazardous waste or constituents
to the environment;
o Ensure early detection of such releases; or
o Compel corrective action for releases.
Recordkeeping and reporting requirements (such as failure to
submit the biennial report or failure to maintain a copy of the
closure plan at the facility) are generally not considered to
be Class I violations.
Violations affecting a receiving unit include all
ground-water monitoring violations unless the receiving unit is
outside the waste management area which the ground-water
monitoring system was designed to monitor. Facility-wide Class
I violations (such as failure to comply with financial
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responsibility requirements, inadequate closure plan,
inadequate waste analysis plan, inadequate inspection plan,
etc.) that affect the receiving unit are also relevant
violations.
Violations of State or other Federal laws should also be
examined for relevance, considering the significance of the
requirement that is being violated; the extent of deviation
from the requirement; and the potential or actual threat to
human health or the -environment.
F. Relevant Release
A relevant release under this revised policy includes:
o Any] release or significant threat of release of a
hazardous substance (defined in 40 CFR 300.6) not
previously excluded (i.e., de minimis releases or
permitted releases) at all units of a RCRA Subtitle C
land disposal facility and at receiving units of a
RCRA Subtitle C treatment or storage facility; and
o Environmentally significant releases of any hazardous
substance not previously excluded at non-receiving
units at RCRA Subtitle C treatment and storage
facilities and at all units at other facilities.
G. Relevant Conditions
Relevant conditions include any environmental conditions
(besides a relevant violation) at a facility that pose a
significant threat to public health, welfare or the environment
or that otherwise affect the satisfactory operation of the
facility.
i
H. Responsible Agency
Determinations of acceptability to receive an off-site
transfer of CERCLA waste will be made by EPA or by States
authorized for corrective action under §3004(u) of RCRA.
References in this document to the "responsible Agency" refer
only to EPA Regions or to States with this authority.
I. Responsible Government Official
The responsible government official is that person
authorized in the responsible Agency to make acceptability
determinations under this revised policy.
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IV. ACCEPTABILITY CRITERIA
A. Acceptability Criteria for Wastes Generated Under Pre-SARA
Decision Documents
CERCLA wastes from actions resulting from pre-SARA
decision documents and pre-SARA RCRA §7003 orders may go to a
facility meeting the following criteria:
o There are no relevant violations at or affecting the
receiving unit; and
o There are no relevant conditions at the facility
(i.e., other environmental conditions that pose a
significant threat tb public health, welfare or the
environment or otherwise affect the satisfactory
operation of the facility).
In order to determine if there is a relevant violation,
an appropriate compliance inspection must be conducted no more
than six months before the expected date of receipt of CERCLA
waste. This inspection, at a minimum, must address all
regulated units. This inspection may be conducted by EPA, a
State or an authorized representative. When a State conducts
the inspection, it should determine the facility's compliance
status. Where a violation or potential violation comes to
EPA's attention (e.g., through a citizen complaint or a
facility visit by permit staff), the Region or State is
expected to investigate whether a violation occurred as soon as
is reasonably possible.
The May 1985 policy does not refer specifically to
releases. Rather, a corrective action plan is required for
relevant conditions. Therefore, in some cases, a facility
receiving CERCLA wastes from an action subject to a pre-SARA
decision document may not need to institute a program to
control releases. Releases will be evaluated by the
responsible Agency to determine whether such releases
constitute relevant conditions under this policy.
The activities related to determining acceptability,
providing notice to facilities, regaining acceptability and
implementation procedures are discussed in the "Implementation"
section of this document, and apply to off-site transfers of
waste generated under pre-SARA and post-SARA decision
documents.
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B. Acceptability Criteria for Wastes Generated Under Post-SARA
Decision Documents
Under this revised policy, there are three basic criteria
that are used to determine the acceptability of a facility to
receive off-site transfers of CERCLA waste generated under a
post-SARA decision document or post-SARA RCRA §7003 cleanup.
The criteria are:
o There must be no relevant violations at or affecting
the receiving unit;
o There must be no releases from receiving units and
contamination from prior releases at receiving units
must be addressed as appropriate; and
o Releases at other units must be addressed as
appropriate.
The last two criteria are applied somewhat differently,
depending on the type of facility. These differences are
described below.
1. Criteria Applicable to All RCRA Subtitle C Treatment.
Storage and Disposal Facilities. The first criterion that
applies to all Subtitle C facilities is that there can be no
relevant violations at or affecting the receiving unit. As
discussed earlier, this determination must be based on an
inspection conducted no more than six months prior to receipt
of CERCLA waste.
A second element that applies to all Subtitle C facilities
is that there must be no releases at receiving units. Releases
from receiving units, except for de minimis releases and State-
and Federally-permitted releases, must be eliminated and any
prior contamination from the release must be controlled by a
corrective action permit or order under Subtitle C, as
described in the next section.
The final criterion that applies to all Subtitle C
facilities, is that the facility must have undergone a RCRA
Facility Assessment (RFA) or equivalent facility-wide
investigation. This investigation addresses EPA's affirmative
duty under CERCLA §121(d)(3) to determine that there are no
releases at the facility.
Releases of RCRA hazardous waste or hazardous
constituents and CERCLA hazardous substances are all included
under the policy. While the RFA need not focus on identifying
releases of hazardous substances that are not RCRA hazardous
wastes or hazardous constituents, to the extent such releases
are discovered in an RFA or through other means, they will be
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considered the same as a release of hazardous waste or
hazardous constituents.
o Additional Criteria Applicable to RCRA Subtitle C Land
Disposal Facilities. Land disposal facilities must meet
additional requirements imposed by SARA and this policy. The
term "land disposal facility" means any RCRA facility at which
a land disposal unit is located, regardless of whether the land
disposal unit is the receiving unit. Land disposal units
include surface impoundments, landfills, land treatment units
and waste piles.
As stated earlier, there must be no releases at or from
receiving units. In addition, releases from other units at a
land disposal facility must be controlled under a corrective
action program. The RFA will help determine whether there is a
release. In addition, land disposal facilities must have
received a comprehensive ground-water monitoring evaluation
(CME) or an operation and maintenance (O&M) inspection within
the last year.
Units at RCRA Subtitle C land disposal facilities
receiving CERCLA waste that is also RCRA hazardous waste must
meet the RCRA minimum technology requirements of RCRA §3004(o).
Only where a facility has been granted a waiver can a land
disposal unit not meeting the minimum technology requirements
be considered acceptable for off-site disposal of CERCLA waste
that is RCRA hazardous waste.
o Criteria Applicable to Subtitle C Treatment and 'Storage
Facilities. The criterion for controlling releases from other
units does not apply to all releases at treatment and storage
facilities, as it does at land disposal facilities. Releases
from other units at treatment and storage facilities must be
evaluated for environmental significance and their effect on
the satisfactory operation of the facility. If determined by
the responsible Agency to be environmentally significant,
releases must be controlled by a corrective action program
under an applicable authority. Releases from other units at
treatment and storage facilities determined not to be
environmentally significant do not affect the acceptability of
the facility for receipt of CERCLA waste.
2. Criteria Applicable to RCRA Permit-bv-Rule Facilities.
This revised policy is also applicable to facilities subject to
the RCRA permit-by-rule provisions in 40 CFR 270.60. These
include ocean disposal barges or vessels, injection wells and
publicly owned treatment works (POTWs). Permit-by-rule
facilities receiving RCRA hazardous waste must have a RCRA
permit or RCRA interim status. RCRA permit-by-rule facilities
must also receive an inspection for compliance with applicable
RCRA permit or interim status requirements. In addition, these
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facilities (and other non-RCRA facilities) should be inspected
by the appropriate inspectors for other applicable laws.
In general, except for POTWs (discussed below), these
facilities will be subject to the same requirements as RCRA
treatment and storage facilities. That is, there can be no
releases of hazardous waste, hazardous constituents or
hazardous substances firom receiving units. There also can be
no relevant violations' at or affecting the receiving unit, as
confirmed by an inspection conducted no more than six months
prior to the receipt of CERCIA waste. Releases from other
units determined by the responsible Agency to be
environmentally significant must be controlled by an
enforceable agreement under the applicable authority.
Criteria for discharge of wastewater from CERCLA sites to
POTWs can be found in a memorandum titled, "Discharge of
Wastewater from CERCLA Sites into POTWs," dated April 15, 1986.
That memorandum requires an evaluation during the RI/FS process
for the CERCLA site to cons'ider such points as:
1 •
o the quantity and quality of the CERCLA wastewater and
its compatibility with the POTW;
o the ability of the POTW to ensure compliance with
applicable pretreatment standards;
o the POTWs record of compliance with its NPDES permit;
and
o ' the potential for ground-water contamination from
transport to or impoundment of CERCLA wastewater at
the POTW.
Based on a consideration of these and other points listed in
the memorandum, the POTW may be deemed appropriate or
inappropriate for receipt of CERCLA waste.
3. Criteria Applicable to Non-Subtitle C Facilities. In
some instances, it may be appropriate to use a non-Subtitle C
facility for off-site transfer: for example, PCB disposal is
regulated under the Toxic Substances Control Act (TSCA);
nonhazardous waste disposal is regulated under Subtitle D of
RCRA and applicable State laws; and disposal of radionuclides
is regulated under the Atomic Energy Act. At such facilities,
all releases are treated in the same manner as releases from
other units at Subtitle C treatment and storage facilities.
That is, the responsible Agency should make a determination as
to whether the release is environmentally significant and, if
so, the release should be controlled by a corrective action
program under the applicable Federal or State authority.
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Requirements for the disposal of PCBs are established in
40 CFR 761.60. Generally, these regulations require that
whenever disposal of PCBs is undertaken, they must be
incinerated, unless the concentrations are less than 50 ppm.
If the concentrations are between 50 and 500 ppm, the rule
provides for certain exceptions that provide alternatives to
the incineration requirements. The principal alternative is
disposal in a TSCA-permitted landfill for PCBs. If a TSCA
landfill is the receiving unit for PCBs, then that facility is
subject to the same criteria applicable if a RCRA land disposal
unit is the receiving unit; i.e., no relevant violations, no
releases at the receiving unit and controlled releases at other
units. PCBs at levels less than 50 ppm may be transported to
acceptable Subtitle D facilities as discussed previously.
V. IMPLEMENTATION
A. Determining Acceptability
Acceptability determinations under the off-site policy
will be made by EPA or by states authorized for corrective
action under §3004(u) of RCRA. Where States have such
authority, the State may make acceptability determinations for
facilities in the State in consultation with EPA. Regardless
of a State's authorization status, the Region and States should
establish, in the Superfund Memorandum of Agreement, mechanisms
to ensure timely exchange of information, notification of
facilities and coordination of activities related to the
acceptability of facilities and potential selection of
facilities for off-site transfer. The Regions and States also
need to establish or enhance coordination mechanisms with their
respective RCRA program staffs in order to ensure timely
receipt of information on inspections, violations and releases.
These agreements can be embodied in State authorization
Memoranda of Agreement, State grant agreements, or State-EPA
enforcement agreements.
The responsible government official in the Region or State
in which a hazardous waste facility is located will determine
whether the facility has relevant violations or releases which
may preclude its use for off-site transfer of CERCLA wastes.
Each Region and State should have a designated off-site
coordinator responsible for ensuring effective communication
between CERCLA response program staff and RCRA enforcement
staff within the Regional Offices, with States, and with other
Regions and States.
The off-site coordinator should maintain a file of all
information on the compliance and release status of each
commercial facility in the Region or State. This information
should be updated based on the results of State- or
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EPA-conducted compliance inspections or other information on
these facilities.
CERCLA response program staff should identify potential
off-site facilities early in the removal action or the remedial
design process and check with the appropriate Regional and/or
State off-site coordinator(s) regarding the acceptability
status of the facilities. If one or more facilities is
identified that has not received an inspection within the last
six months, the Regional off-site coordinator(s) should arrange
to have such inspection(s) conducted within a timeframe
dictated by the project schedule. The CERCLA REM/FIT
contractor may conduct the inspection under the direction of
the Deputy Project Officer. If contractor personnel are used,
the Region should ensure that such personnel are adequately
trained to conduct the inspections.
Responsible Agencies should base their acceptability
determinations on an evaluation of a facility's compliance
status and, as appropriate, whether the facility has releases
or other environmental conditions that affect the satisfactory
operation of the facility. States not authorized for HSWA
corrective action may assist EPA in making the acceptability
determination by determining a facility's compliance status
(based on a State inspection) and providing this information to
EPA. Regions and States should use the following types of
information to make acceptability determinations:
o State- or EPA-conducted inspections. EPA will
continue to assign high priority to conducting
inspections at commercial land disposal, treatment
and storage facilities. Facilities designated to
receive CERCLA waste must be inspected within six
months of the planned receipt of the waste. In
addition, land disposal facilities must have received
a comprehensive ground-water monitoring inspection
(CME) or an operation and maintenance (O&M)
inspection within the last year, in accordance with
the timeframes specified in the RCRA Implementation
Plan (RIP).
o RCRA Facility Assessments (RFAs). To be eligible
under this policy, a RCRA Subtitle C facility must
have had an RFA or equivalent facility-wide
investigation. The RFA or its equivalent must be
designed to identify existing and potential releases
of hazardous waste and hazardous constituents from
solid waste management units at the facility.
o Other data sources. Other documents such as the
facility's permit application, permit, Ground Water
Task Force report, ground-water monitoring data or
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ground-water assessment report can contain
information on violations, releases or other
conditions. Relevant information from these
documents should also be used to determine a
facility's acceptability to receive waste under the
off-site policy.
B. Notice Procedures
EPA expects that Regions and States will take timely and
appropriate enforcement action on determining that a violation
has occurred. Where a responsible Agency performs an
inspection that identifies a relevant violation at a commercial
facility likely to accept CERCLA wastes, within five working
days of the violation determination, the responsible Agency
must provide written notice to the facility of the violation
and the effects of applying this policy. States not authorized
for HSWA corrective action should inform EPA of the violation
so that EPA can notify the facility of the effect of the
violation under this policy. (See RCRA Enforcement' Response
Policy for a discussion of appropriate enforcement 'responses '
and timeframes for Class I violations.)
When the responsible Agency determines that a relevant
release has occurred, or that relevant conditions exist, the
responsible Agency must notify the facility in writing within
five working days of that determination. The notice must also
state the effect of the determination under this policy. A
copy of any notice must also be provided to the non-issuing
Region or State in which the facility is located. States not
authorized for HSWA corrective action should provide EPA with
information on releases so that EPA can determine whether a
relevant release has occurred.
Private parties conducting a response action subject to
this policy will need to obtain information on the
acceptability of commercial facilities. The responsible Agency
must respond with respect to both pre-SARA and post-SARA
wastes. In addition, the responsible Agency should indicate
whether the facility is currently undergoing a review of
acceptability and the date the review is expected to be
completed. No enforcement sensitive or predecisional
information should be released.
A facility may submit a bid for receipt of CERCLA waste
during a period of unacceptability. However, a facility must
be acceptable in order to be awarded a contract for receipt of
CERCLA waste.
Scope and Contents of the Notice. The responsible Agency
must send the notice to the facility owner/operator by
certified and first-class mail, return receipt requested. The
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certified notice, if not acknowledged by the receipt return
card, will be considered to have been received by the addressee
if properly sent by first-class mail to the last address known
to the responsible Agency. The notice should contain the
following:
o A finding that the facility may have conditions that
render it unacceptable for receipt of off-site waste,
based upon available information from an RFA, an
inspection, or other data sources;
o A description of the specific acts, omissions or
conditions that form the basis of the findings;
o Notice that the facility owner/operator has the
opportunity to request an informal conference with
the responsible government official to discuss the
basis for the facility's unacceptability
determination under this revised policy, provided
that such a request is made within 10 calendar days
from the date of the notice. The owner/operator may
submit written comments within 30 calendar days from
the date of the notice in lieu of holding the
conference.
o Notice that failure to request an informal meeting or
submit written comments will result in no further
consideration of the determination by the responsible
Agency during the 60 calendar days after issuance of
the notice. The responsible Agency will cease any
transport of CERCLA waste to the facility on the 60th
calendar day after issuance of the notice.
o Notice that the owner/operator may request, within 10
calendar days of hearing from the responsible
government official after the informal conference or
the submittal of written comments, a reconsideration
of the determination by the Regional Administrator or
appropriate State official. The Regional
Administrator or state official may agree to review
the determination at his or her discretion; and
o Notice that such a review by the Regional
Administrator or appropriate State official, if
agreed to, will be conducted within 60 calendar days
of the initial notice, if possible, but that the
review will not stay the determination.
The facility may continue to receive CERCLA waste for 60
calendar days after issuance of the initial notice. As
indicated above, facility owners or operators may request an
informal conference with the responsible government official
-------
within 10 calendar days from the date of issuance of the
notice, to discuss the basis for a violation or release
determination and its relevance to the facility's acceptability
to receive CERCLA wastes. Any such meeting should take place
within 30 calendar days of the date the initial notice is
issued. If unacceptability is based on a State inspection or
enforcement action, a representative of the State should attend
the meeting. If the State does not attend, EPA will notify the
State of the outcome of the meeting. The owner/opeator may
submit written comments within 30 calendar days from the date
of the notice in lieu of holding the conference. If the
responsible Agency does not find that the information submitted
at the informal conference or in comments is sufficient to
support a finding of acceptability to receive CERCLA wastes, it
should so inform the facility orally or in writing.
Within 10 calendar days of hearing from the responsible
government official after the informal conference or the
submittal of written comments, the facility owner or operator
may request a reconsideration of the determination by the
Regional Administrator or appropriate State official. The
Regional Administrator or appropriate State official may use
his or her discretion in deciding whether to conduct a review
of the determination. Such a review, if granted, should be
conducted within the 60 day period (originating with the
notice) to the extent possible. The review will not stay the
determination.
The RPM, OSC or equivalent site manager must stop transfer
of waste to a facility on the 60th calendar day after issuance
of a notice. The facility then remains unacceptable until such
time as the responsible Agency notifies the owner or operator
otherwise. The off-site coordinator and the OSC/RPM should
maintain close coordination throughout the 60-day period.
In limited cases, the responsible Agency may use its
discretion to extend the 60 day period if it requires more time
to review a submission. The facility should be notified of any
extension, and it remains acceptable during any extension.
The responsible Agency may also use its discretion to
determine that a facility's unacceptability is immediately
effective upon receipt of a notice to that effect. This may
occur in situations such as, but not limited to, emergencies
(e.g., fire or explosion) or egregious violations (e.g.,
criminal violations or chronic recalcitrance) or other
situations that render the facility incapable of safely
handling CERCLA waste.
Implementation of this notice provision does not relieve
the Regions or States from taking appropriate enforcement
action under RCRA or CERCLA.
-------
983 M :
-17-
C. Procedures for Facilities with Outstanding Unacceotabilitv
Determinations
Under the original May 1985 off-site policy, facilities
determined to be unacceptable to receive CERCLA wastes were
provided with written notice and were generally afforded
informal opportunities to comment on the determination (the
latter step was not required by the policy). Although the
Agency believes that these steps represented adequate
procedural safeguards for facilities seeking to receive CERCLA
wastes, EPA has decided to provide an additional opportunity
for review, in light of this revised policy, for facilities
with unacceptability determinations already in place on the
effective date of the revised policy.
Any such facility that wishes to meet with the responsible
Agency to discuss the basis for a violation or release
determination and its relevance to the facility's ability to
receive CERCLA wastes, may request an informal conference with
or submit written comments to the responsible Agency at any
point up to the 60th day after the publication of the proposed
rule on the off-site policy in the Federal Register. Such a
meeting should take place within 30 calendar days of the
request. If the responsible government Agency does not find
the information presented to be sufficient to support a finding
of acceptability to receive CERCLA wastes, then it should
inform the facility orally or in writing that the
unacceptability determination will continue to be in force.
The facility may, within 10 calendar days of hearing from the
responsible government official after the informal conference
or submittal of written comments, petition the EPA Regional
Administrator or appropriate State official for
reconsideration. The Regional Administrator or State official
may use his or her discretion in deciding whether to grant
reconsideration.
These procedures for review of unacceptability
determinations that were already in place on the effective date
of this revised policy will not act to stay the effect of the
underlying unacceptability determinations during the period of
review.
D. Re-evaluatina Unacceptability
An unacceptable facility can be reconsidered for
management of CERCLA wastes whenever the responsible Agency
finds that the facility meets the criteria described in the
"Acceptability Criteria" section of this policy.
For the purposes of this policy, releases will be
considered controlled upon issuance of an order or permit that
-------
983-'.i
-18-
initiates and requires completion of one or more of the
following: a facility-wide RCRA Facility Investigation (RFI);
a Corrective Measures Study (CMS); or Corrective Measures
Implementation (CMI). The facility must comply with the permit
or order to remain acceptable to receive CERCLA waste. At the
completion of any such phase of the corrective action process,
the responsible Agency should again review the facility for
acceptability under the off-site policy using the criteria
listed in this document, and as necessary and appropriate, make
new acceptability determinations, and issue additional orders
or modify permit conditions to control identified releases.
Releases that require a determination of environmental
significance will be considered controlled upon issuance of an
order or permit to conduct an RFI, CMS or CMI, or upon
completion of an RFI which concludes that the release is not
environmentally significant. Again, the facility must comply
with the permit or order to remain acceptable to receive CERCLA
waste.
If the facility is determined to be unacceptable as a
result of relevant violations at or affecting the receiving
unit, the State (if it made the initial determination) or EPA
must determine that the receiving unit is in full physical
compliance with all applicable requirements. Where a State not
authorized for HSWA corrective action makes this determination,
it should notify EPA immediately of the facility's return to
compliance, so that the Agency can expeditiously inform the
facility that it is once again acceptable to receive CERCLA
wastes.
The responsible Agency will notify the facility of its
return to acceptability by certified and first-class mail,
return receipt requested.
E. Implementation Procedures
All remedial decision documents must discuss compliance
with this policy for alternatives involving off-site management
of CERCLA wastes. Decision documents for removal actions also
should include such a discussion.
Provisions requiring compliance with this policy should be
included in all contracts for response action, Cooperative
Agreements with States undertaking Superfund response actions,
and enforcement agreements. For ongoing projects, these
provisions will be implemented as follows, taking into
consideration the differences in applicable requirements for
pre- and post-SARA decision documents:
o RI/FS; The Regions shall immediately notify Agency
contractors and States that alternatives for off-site
-------
9834.1 1
-19-
management of wastes must be evaluated against the
provisions of this policy.
o Remedial Design: The Regions shall immediately
notify Agency contractors, the States, and the U.S.
Army Corps of Engineers that all remedies that
include off-site disposal of CERCLA waste must comply
with the provisions of this policy.
o Remedial Action; The Regions shall immediately
assess the status of compliance, releases and other
environmental conditions at facilities receiving
CERCLA waste from ongoing projects. If a facility is
found not to be acceptable, the responsible Agency
should notify the facility of its unacceptability.
o Enforcement; Cleanups by responsible parties under
enforcement actions currently under negotiation and
all future actions must comply with this policy.
Existing agreements need not be amended. However,
EPA reserves the right to apply these procedures to
existing agreements, to the extent it is consistent
with the release and reopener clauses in the
settlement agreement.
If the response, action is proceeding under a Federal lead,
the Regions should work with the Corps of Engineers or EPA
Contracts Officer to negotiate a contracts modification to an
existing contract, if necessary. If the response action is
proceeding under a State lead, the Regions should amend the
Cooperative Agreement.
-------
-------
•»!> TTi
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DEC 2 8 1987
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
OSWER DIRECTIVE 9355.0-24
MEMORANDUM
SUBJECT: OSWER Strategy for Management Oversight of the CERCLA
Remedial Actjxtfjxgtart Mandate
' ' /.
FROM: J. Winston'Porter
Assistant Administrator
TO: Regional Administrators
Regions l-X
This memorandum establishes a process for managing EPA's
efforts to achieve the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA) §115'e) statutory man-
date for remedial action starts. It also establishes a process
for setting expectations as to each Region's contribution toward
this end, and providing guidance to enhance ;PA's ability to meet
these requirements. The attached OSWER strategy document con-
tains the detailed information for this program.
Section 116(e) of CERCLA requires that we ensure that
substantial and continuous on-site remedial action commences at
facilities on the National Priorities List. Our mandate is to
begin 175 first start remedial action projects by October 16, 1989,
and an additional 200 first start remedial action projects by
October 16, 1991. Specifics as to which projects will qualify
against the mandate are provided in the strategy document.
One challenge presented to us by this statutory directive
is to both begin new remedial action (RA) starts and proceed
with subsequent operable unit starts at sites where RAs began
prior to the Superfund Amendments and Reauthorization Act of
1986 (SARA). In most instances the subsequent starts will not
count towards the RA goal, but we must balance the need to con-
duct work at the most serious environmental and health threat-
tening sites with the need to meet the "175" figure.
-------
9355.0-24
(2)
The Agency will have to take aggressive action to ensure
that the mandate is met. We will have to effectively plan and
manage projects to avoid, or at least minimize, project slippage.
I am committed to provide Headquarters support to help with
project planning and problem solving so that schedules can be
met.
We have examined our performance since SARA was passed as
well as the FY'88 targets and FY'89 planning projections and .
believe that the "175" figure can be achieved, but we have little
margin for project slippage. We must keep the remedial pipeline
moving smoothly in order to initiate RAs on schedule. For example,
RODs will have to be signed by the second quarter of FY'88 in
order for the RD to be completed in time to start the RA by
October 16, 1989.
In order to monitor our progress towards achieving the di-
rective of 175 RA starts, Headquarters is developing a management
plan (see the attached strategy) to help the Regions to closely
track projects and anticipate^ identify, and resolve issues
that may cause delays.
A key element in our strategy is a review of the "175"
candidate list of Fund and enforcement-lead sites by each Region.
This review is to be completed by the Regions by January 23,
1938, and submitted to Paul Nadeau, Acting Director of the Ha-
zardous Site Control Division, OERR, (WH-54b;i).
Your attention to this initiative is essential for the
Agency to meet the statutory mandate. I look forward to working
closely with each of your Regions in order to facilitate imple-
mentation of this strategy. Should you or your staff have any
questions or comments, please contact Hal Snyder of OERR at
475-6707 or Mike Kilpatrick of OWPE at 382-4819.
Attachment
-------
OSWER DIRECTIVE 9355.0-24
OSWER STRATEGY FOR MANAGEMENT OVERSIGHT OF THE CERCLA
REMEDIAL ACTION -START MANDATE
I. PURPOSE
OSWER developed this strategy for managing EPA's efforts to
achieve the Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA) 5116 (e) statutory mandate for reme-
dial action starts. This strategy establishes expectations as
to each Region's contribution toward this end, and provides
guidance to enhance EPA's ability to meet these requirements.
II. BACKGROUND
Section 116 (e) of CERCLA, which was enacted as part of the
Superfund Amendments and Reauthorization Act (SARA) of 1986, re-
quires the following:
The President shall ensure that substantial and continuous physical
onsite remedial action commences at facilities on the National
Priorities List (NPL), in addition to those facilities on which
remedial action has commenced prior to the date of enactment of
SARA, at a rate not fewer than:
(1) 175 facilities during the first Se-^nth period after enactment
of SARA (by Oct. 16, 1989); and
(2) 200 additional facilities during the following 24 months
after such 36-month period (by Oct. .6 , 1991).
EPA has interpreted key elements of the SARA requirement as follows:
0 Substantial and continuous - the remedial action represents
an operable unit of the remedy leading to final cleanup and
deletion of the site from the NPL. (These actions may include
remedies at sites where removal authority is used to complete
the remedial action leading to deletion from the NPL.)'
0 Commencement of physical on-site remedial action - the remedial
action (RA) commences on the date when the managing agency
(i.e., EPA, US Army Corps of Engineers, State) awards the
construction contract for the operable unit or the potentially
responsible party (PRP) has taken action equivalent to EPA
contract award or taken equivalent action with their own work
force.
-------
9355.0-24
In addition to those facilities on which some remedial action
has commenced prior to the enactment of SARA - the remedUi—
actions to be applied toward the "175" figure will be
SPMS first start projects commencing after the enactment of
SARA.
A preliminary evaluation of FY '87 performance, FY '88 SPMS
targets, and FY '89 projections indicates that it is possible to
achieve the mandate. The following chart indicates where we stand:
FY87 RA Starts:
FY88 SPMS Targets
FY89 Projected
25
49
53
15
24
35
Total 127 74
Grand Total 201
The statutory definition of an RA start (i.e., construction
contract award) differs from EPA's budget (SPMS) definition
(i.e., obligation of funds) by about 2-3 months. Therefore, you
should understand that achieving FY'89 expectations may be sig-
nificantly affected unless projects can be started sufficiently
early in the fiscal year to compensate for Uie difference in
definitions.
III. MANAGEMENT PLAN FOR MEETING THE MANDATE
A key element in being able to meet the statutory mandate
will be an effective management plan shared by both Headquarters
and the Regions. This plan will help tracking of projects and
identifying and resolving problems and issues that might cause
project delays.
The Agency will use the current SCAP/SPMS accountability
system to track projects and focus attention on the early portions
of project schedules. By focusing on the early portions of projects,
site managers will be able to identify projects that could slip and
arrange for appropriate assistance to keep projects on schedule.
OERR has developed example SCAP planning schedules for RDs
(attachment A) and these schedules indicate that RODs should be
signed by the second quarter of FY'88 in order to allow sufficient
time to complete the RD and begin the RA in time to meet the
statutory timeframe. Two of the most critical elements of the
schedule are timely completion of the PRP negotiation moratorium
prior to commencing design and the RA procurement process. These
procurements must occur on a tight schedule, but should be
procedurally correct in order to avoid bid protests which would
cause the project to miss the "175 Program" mandate.
-------
9355.0-24
A. Determining the Candidate Sites
The first phase of the management plan is to identify
candidate'sites to be' applied toward the "175" figure. Our
immediate goal during the next several weeks will be to work
with the Regions to accurately determine the number of likely
projects.
Headquarters examined the SCAP/CCRCLIS data base (includes
negotiated SPMS RD and RA targets for FY'88 and preliminary
expectations for FY'89) and identified the universe of sites
that could potentially satisfy the SARA "175" mandate using the
following criteria: 1) all sites currently showing an RA start
in the fourth quarter of FY'89 or before on the SCAP; 2) all
sites that have RODs by second quarter of FY'88 but have no RA
start dates (predominantly Federal enforcement-(FE) and respon-
sible party-(RP) lead); and 3) all sites with RODs through the
second quarter of FY'88 but with no RA start dates scheduled
until the first or second quarter of FY'90. The universe also
included Federal facilities and state enforcement-lead actions.
A candidate list has been developed considering the above
criteria (Attachment B) and the list shows both the total number
of RA starts expected from the Region and the maximum number
from this total that will likely be Fund-financed. The numbers
show the need for EPA to have a successful settlement and enforce-
ment program.
The next step will be for each Region to review and, if
appropriate, add or drop sites from the drat"1: candidate list.
Regions should also identify first quarter -'Y'90 RA starts that
could be potential candidates. In addition, if Regions propose
to drop sites from the candidate list, pleaue provide an ex-
planation. For each Fund-financed candidate for FY'88, FY'89,
and beyond, you should indicate the likelihood that a PRP will
assume responsibility for the cleanup. This review is to be
accomplished and returned to Paul Nadeau, Acting Director,
Hazardous Site Control Division (WH-548E) in Headquarters by
January 23, 1988.
Based upon this information, Headquarters will then revise
FY'89 Regional expectations by identifying each Region's minimum
contribution to the "175" figure. We will identify those sites
where post-SARA RAs have already occurred along with the maximum
number of Fund-financed RAs and minimum number of RP-lead
RAs expected for FY'88. This will tell us how many RAs we will
have to start in FY'89, and then we can proportionally assign
Regional commitments.
Both Regions and Headquarters should rely on the CERCLIS
Data Base to track each project after convergence of the other
data systems is completed. The OECM docket will also be used to
track enforcement cases and Consent Decrees. The OECM docket
may require modification by including SSID numbers in order to
facilitate tracking.
-------
9355.0-26
B. Develop Site-Specific Schedules and Action Plans
The second phase of the management plan will be to develop
schedules and action plans for the candidate sites.
As mentioned earlier, OERR is currently developing example
design schedules based upon our design experience to date with a
variety of remedial alternatives. These schedules can assist
Regional Project Managers in preparing accurate site-specific
schedules. Hopefully, new program initiatives, such as the
project management approach, will allow us to adopt shorter
schedules for our new projects.
We expect the Regions to develop detailed site-specific
schedules and action plans for each site very soon. For Fund-
lead sites, project schedules should include all key milestones
leading to construction contract award. Action plans should
describe the project delivery approach (Corps, State, etc); define
operable unit strategies; identify potential issues that could
impact the project schedule (State cost share; site access;
requirement for treatability testing during the RD; etc); and
assign responsibilities for resolving the issues. The Corps of
Engineers should be involved in setting schedules for projects
for which they will be responsible. Headquarters (Fund and
Enforcement) staff will visit the Regions to review the schedules
and provide appropriate assistance. These visits should commence
in January 1988 and hopefully involve both Regional staff and
section chiefs.
In addition, these Regional visits will provide the first
opportunity to identify major policy issues or other site-specific
issues that may require assistance or resolution by Headquarters.
Based upon the site-specific schedules that are developed during
the visits, you may need to use fast track analysis to accele-
rate projects that could fall outside the "175" window.
C. Tracking Progress and Providing Technical Assistance
The third phase of the management plan will be to track
progress in the quarterly reports showing planned and actual
dates for each of the candidate sites. These will be developed
from CERCLZS. Along with these basic site completion schedules,
exception reports will be generated showing any projects where
schedules have slipped, and any projects where planned or actual
dates are beyond the dates for achieving timely RA starts. This
report will form the basis for an OSWER management and Regional
management quarterly progress briefing on each site.
IV. PROGRAM INITIATIVES TO ENHANCE PERFORMANCE AGAINST THE MANDATE
OERR and OWPE are currently working on several initiatives
that will enhance our ability to minimize project slippage and
meet our mandate.
-------
9355.0-24
A. Fund-Lead Projects
OERR is currently negotiating RO and RA workloads with the
U.S. Army Corps of Engineers (USAGE) and Bureau of Reclamation
(BUREC). The negotiations will focus on the projected workload,
the role of these agencies in the Superfund program, the need for
close working relationships with the Regions, and faster contracting
procedures for assigned RDs and RAs.
In addition, OERR is currently implementing an Alternative
Remedial Contracts Strategy (ARCS) to provide each Region with
more and diverse contractor capability to perform RI/FSs, RDs,
construction management, and selected RAs.
OERR is also considering a construction management support
program to provide comprehensive program and project support for
the planning and execution of RDs and RAs by making available a
construction management specialist in the Region that might come
from the REM/ARCS contractors, BUREC, or USAGE.
Furthermore, OERR will conduct an analysis that will enable
us to identify and resolve major issues inherent to the Fund
program such as state cost assurances, disposal capacity, property
acquisition, and 0 & M. This review would also include the poten-
tial for phased funding in order to allow for more initial starts,
the implications of the land disposal restrictions beginning in
November 1988, and RD/RA contracting procedures.
B. Enforcement-Lead Projects
OWPE intends to work with the Regions ts set higher settlement
expectations for FY'88 in order to increase the universe of sites
where RAs will begin. The settlement process itself will also
be expedited, where possible, and issues resolved, where necessary.
Discussions with OECM and DOJ management are underway on this
subject. All phases of the negotiation process are presently
being examined and proposals being evaluated to improve the over-
all efficiency. Some specific initiatives are detailed below.
For pre-negotiation activities, Regions are encouraged
to continue to send general notice letters early to allow better
coalescing of PRPs. Headquarters will also be developing a Model
Consent Decree in order to expedite discussions on legal "boiler
plate".
Special Notice guidance is completed and emphasizes moratorium
imposition when the feasibility study and proposed plan are
released for public comment to ensure minimum delay in implementing
projects once the ROD is signed. Headquarters will also be
tracking negotiations to ensure that extensions are provided
consistent with the February 12, 1987, guidance on "Streamlining
the CERCLA Settlement Process".
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9355.0-24
Other discussions with DOJ arvd OECM are addressing
post-settlement activities and focus on DOJ accountability,
ensuring timely lodging of settlement. Other discussion topics
include: pre-negotiation submittals, and requiring PRPs to
initate RD at the time the consent decree is lodged. OWPE and
OECM are preparing guidance on these topics. In addition, OWPE
encourages the use of motions for summary judgment, and preli-
minary injunctions as appropriate.
Finally, OWPE and OERR are working with others in the
Agency to develop a streamlined decision process by which a
conditional remedy might be selected. For certain, appropriate
cases this should permit earlier starts on the remedial action.
V. RECOMMENDED REGIONAL INITIATIVES TO ENHANCE PERFORMANCE
AGAINST THE MANDATE" ———
In addition to Headquarters initiatives, we are recoramendina
several concurrent initiatives that will help the Regions prevent
or minimize project slippage. The recommendations are listed
be 1 ow:
Use the project management concept whereby the same A/E firm is
used for remedial investigation/feasibility study, remedial
design, and construction management.
Include schedules in all cooperative agreements, interagency
agreements, contracts and work assignments, and Consent Decrees
that will ensure that EPA meets the mandaced targets.
0 Consider State sanctions, penalty and award fee provisions
of contracts, and enforcement of stipulated penalties of
enforcement agreements when project schedules slip.
0 Expand the universe of borderline cases for each.Region by
breaking out operable units, especially at sites including
short-term surface cleanups and long-term, ground water reme-
diation.
0 Subject designs to value engineering, biddability, construct-
ability, claims prevention, environmental, and operability
reviews as appropriate to avoid construction initiation
slippages and help ensure efficient implementation after
award. These reviews must be carefully scheduled to avoid
delaying the completion of the design phase.
-------
9355.0-24
Attachment A
EXAMPLE DESIGN MANAGEMENT SCHEDULE
The following example indicates that in order for construction
to be initiated (construction contract awarded} at a hypothetical
site before October 17, 1989, the ROD would have to be signed no
later than March 31, 1988. The actual duration of the design,
which will affect both the scheduled ROD and construction contract
award dates, will depend upon whether the project is Federal,-
State-or enforcement-lead, the procedures to be used to procure
the design firm, and the complexity of the remedy. Remember that
these example schedules were derived from our experience to date;
our intention for the future is to reduce the time for designs
whenever possible.
Milestones Date
ROD signature March 31, 1988
PRP Negotiations Completed April 30, 1988
RD Start - Obligation April 30, 1988
- Consent Decree Lodging May 31, 1988
RA Fund Obligation July 1, 1989
RD Complete/Construction
Presolicitation Notice Jily 16, 1989
Invitation for Bids Aug. 16, 1989
Submission of Bids Sept. 16, 1989
Contract Award Oct. 16, 1989
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Attachment 3
FUND-LEAD
REMEDIAL ACTIONS 9355.0-24
175 CANDIDATE LIST
Region
I
II
III
V
VI
VIII
IX
State
RI
NY
NY
PA
PA
PA
PA
PA
PA
PA
WV
IL
IN
MI
MI
MI
OH
WI
AR
TX
CD
CA
CA
CA
FY 1987
Site Name
Western Sand & Gravel
Brewster Well Field
Vestal Water Supply 1-1
Blosenski Landfill
Industrial Lane
Lackawanna Refuse
Lansdowne
Tysons Dunp
Wade (ABM)
Westline Site
Leetown Pesticide
Lasalle Electric Utilities
Lake Sandy Jo (M&M Landfill)
Cenetary Dunp
Forest Waste Products
Northernaire Plating
Old Mill
Schraalz Dunp
Cecil Lindsey
United Creosoting
Woodbury
Celtor Chemical Works
Operating Industries Inc. L/F
San Fernanado Valley (Area 1)
Lead
F
F
F
F
F
F
F
F
F
F
F
S
F
S
F
S
F
F
F
S
F
F
FE
S
QtrStart
4/87
4/87
4/87
2/87
3/87
3/87
2/87
3/87
2/87
4/87
3/87
4/87
4/87
3/87
4/87
3/87
4/87
3/87
3/87
3/88
2/87
3/87
3/87
4/87
•
QtrConp
3/89
4/88
4/88
2/88
2/88
1/90
1/89
2/89
1/88
3/88
1/88
1/90
2/89
2/89
3/88
2/88
3/90
1/88
1/89
2/94
1/89
2/89
1/90
1/89
OR United Chrome Products, Inc. F 4/87 4/88
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FUND-LEAD
REMEDIAL ACTIONS *•>:>:>. 0-2-
175 CANDIDATE LIST
FY 1988
State Site Name Lead QtrStart QtrConp
I MA Nyanza Chemical Waste Dump F 1/88 3/89
II NJ Bog Creek Farm F 4/88 2/89
NJ Caldwell Trucking F 4/88 1/89
NJ Conbe Fill North Landfill S 4/88 4/90
NJ Combe Fill South Landfill S 4/88 4/89
NJ GEMS Landfill s 4/88 4/89
NJ Glen Ridge Radium Site F 2/88 2/92
NJ Helen Kramer Landfill F 4/88 2/90
NJ Lang Property F - 3/88 4/88
NJ Lone Pine Landfill F 4/88 1/90
NJ Metaltec/Aerosystems F 3/88 4/89
NJ Montclair/W. Orange Radium F 2/88 2/92
NY American Thermostat Co. F 4/88 4/89
NY Endicott Village Welf ield S 4/88 4/89
NY Haviland Complex F 4/88 1/90
NY Katonah Municipal Well F 4/88 4/89
NY Kentucky Avenue Well Field S 3/88 3/89
NY Sinclair Refinery S 2/88 1/90
III MD Kane & Lombard Street Drums F 4/88 2/92
PA Mill Creek Dump F 4/88 2/89
PA Meyers Landfill p 4/88 3/89
PA Palmerton Zinc Pile F 2/88 4/90
IV FL Coleman-Evans Wood Pres. F 4/88 2/90
FL Davie Landfill s 1/88 4/89
FL Hollingsworth Solderless F 1/88 2/90
FL Miami Drum Services S 1/88 3/89
FL White House Oil Pits F 4/88 4/91
i
KY Disfcler Brickyard F 4/88 4/89
KY Distler Farm F 4/88 4/89
SC Geiger (C&M Oil) F 1/88 4/91
SC SCRDI Dixiana F 3/88 4/89
V MI Burrows Sanitation F 3/88 4/90
MI Metaraora Landfill s 2/88 4/89
MI Novaco Industries p 2/88 1/90
MI Spiegelburg Landfill s 2/88 3/90
MN Lehillier/Mankato Site s 2/88 2/90
-------
(FY'88 Continued)
9355.0-24
ion State Site Name
Lead
QtrStart QtrComp
OH
OH
Arcanum Iron & Metal
New Lyme Landfill
F
F
4/88
2/88
4/89
2/89
VI AR Gurley Pit
TX Geneva Industries/Furhrmann
TX Odessa Chromium #1
TX Odessa Chromium 12/Andrews
IX Petro-Chemical Systems
VIII CO Denver Radium Site
CO Rocky Mountain Arsenal
ND Arsenic Trioxide Site
IX CA Del Norte Pesticide Storage
CA Iron Mountain Mine
4/88
3/90
s
s
s
F
F
S
S
F
F
, 1/88
' 1/88
1/88
1/88
2/88
2/88
2/88 '
2/88
3/88
2/89
1/89
1/89
4/88
3/89
3/89
3/89
1/89
2/89
Frontier Hard Chrome, Inc.
4/88
2/89
-------
FUND-LEAD 9355.0-24
REMEDIAL ACTIONS
175 CANDIDATE LIST
FY 1989
Region State
I CT
MA
RI
II NJ
NJ
NJ
NJ
NJ
NJ
NJ
NY
NY
NY
III MD
PA
VA
VA
VA
FL
FL
FL
SC
sc
Site Name
Yaworski Waste Lagoon
Baird & McGuire
Davis Liquid Waste
Florence Land Recontouring
Goose Farm
Pi jack Farm
Sharkey Landfill
Spence Farm
Syncon Resins
Waldick Aerospace Devices
Fulton Terminals
Marathon Battery Corp.
Wide .Beach Development
Southern MD Wood Treating
Berks Sand Pit
L. A. Clarke & Son
Rhinehart Tire Fire Dump
Saltville Waste Disp. Ponds
Pioneer Sand Co
Tower Chemical Co.
Zellwood Ground Water
Independent Nail Co.
Palmetto Wood Preserving
Lead
F
F
F
S
F
F
S
F
S
F
F
F
F
F
S
F
F
F
F
F
F
F
F
QtrStart
4/89
3/89
1/89
2/89
1/89
2/89
3/89
2/89
2/89
3/89
3/89
3/89
1/89
3/89
4/89
4/89
4/89
1/89
1/89
3/89
3/89
2/89
2/89
QtrConp
4/90
3/91
4/89
1/90
2/90
3/89
2/91
4/89
3/90
4/90
3/90
2/91
3/90
3/91
4/90
4/91
4/90
1/90
4/89
4/90
4/91
2/91
2/90
TN American Creosote/Jackson F 4/89 4/90
-------
9355.0-24
(FY'89 Continued)
Region State ' Site Name Lead QtrStart QtrCong
V IL Belvidere Municipal Landfill S 4/89 L/9L
IL Byron Salvage Yard S 4/89 3/91
IN Marion (Bragg) Dunp F 2/89 1/91
MI Liquid Disposal, Inc. S 3/89 1/91
MI Rose Township Dunp S 3/89 1/91
MI Springfield Twp Dunp S 3/89 1/91
MN Arrowhead Refinery Co. F 2/89 1/91
VK South Andover Site S 4/89 2/91
OH Las*in/Poplar Oil Co. F 3/89 4/90
OH Pristine, Inc. F 4/89 1/91
OH United Scrap Lead Co., Inc. F 4/89 1/93
WI Eau Claire Mun Vfell Field F 4/89 2/91
VI LA Bayou Bonfouca F 1/89 2/92
OK Conpass Industries (Avery Dr.) S 4/89 4/90
TX Crystal City Airport S 1/89 4/90
TX Sikes Disposal Pits S 4/89 2/94
, TX Sol Lynn/Indust. Transf. S 4/89 2/90
VII KS Arkansas City Dunp S 4/89 1/90
KS Cherokee County F 3/89 4/90
VIII CO Central City-Clear Creek F 2/89 4/90
IX AZ Litchf ield Airport Area FE 2/89 1/90
AZ Tucson Int'l Airport Area S 3/89 1/91
CA San Gabriel Valley/Area 2 F 2/89 1/90
CA Seine Treating Co. F 3/89 3/90
X ID Bunker Hill Mining & Metal F 2/89 4/89
WA Colbert Landfill S 4/89 4/91
VA Northwest Transformer F 4/89 3/91
-------
FY'87 Enforcement RA Candidates (Actual)
9355.0-24
REGION
I
II
III
IV
V
VI
VII
State
ME
NH
CT
ME
NY
NJ
PA
FL
IN
IL
IL
MN
IL
LA
IA
SITE NAME
Winthrop Township
Auburn Road L/F
Kellogg-Deering
McKin
Hooker (Hyde Park)
Olean Well Field
Taylor Borough Dump
Pepper Steel
Seymour
ACME Solvent
Wauconda S & G
TCAAP
Savanna Army Depot
Petro Processors
Des Moines TCE
LEAD
RP
RP
RP
RP
RP
RP
RP
RP
RP
RP
RP
FF
FF
RP
RP
RD
OtrStart
3/24/86
87/3
87/3
7/10/86
86/4
5/28/87
3/1/86
1/15/87
9/30/86
5/1/87
9/23/86
10/1/86
RA
QtrStart
11/19/86
4/15/87
9/3/87
3/16/87
87/3
87/4
5/28/87
3/26/87
8/17/87
2/1/87
5/1/87
9/29/87
87/3
6/30/87
87/3
-------
9355.0-24
FY'88 Enforcement RA Start Candidates
(ENFORCEMENT CONFIDENTIAL)
REGION State SITE NAME
II
HI
V
VI
VII
NH Ottati & GOSS
MA Hoccncnco Pond
CT Beacon Heights L/F
RI Picillo Farm
PR UpJohn Facility
NJ Renora Inc.
NY Swope Oil
NY Clean Vfell Field
PA McAdoo Associates
WV Vtest Virginia Ord
DE Delaware City PVC
VA Chisman Creek
MN Northern Engraving
AR Mid-South
LA Bayou Sorrel
LA LA Army Depot
MO Conservation Chem.
MO Syntex Facilty
CO Marshall Landfill
MT Anaconda Smelter
CO Snuggler Mountain
CO Rocky Flats
LEAD
RP
RP
RP
RP
RP
RP
RP
RP
RP
RP
RP
RP
RD
QtrStart
88/1
87/4
9/1/86
87/4
87/4
87/4
87/4
4/15/87
87/4
RA
QtrStart
88/3
88/4
88/2
88/3
88/4
88/3
88/4
88/1
88/4
88/4
88/2
88/2
RP
RP
RP
FF
RP
RP
RP
RP
RP
FF
87/4
87/4
9/1/86
87/4
87/3
88/1
87/2
88/2
88/2
88/2
88/4
88/1
88/4
88/3
88/4
88/3
88/3
88/4
IX CA IBM (San Jose) SE
CA Motorola (52nd ST) SE
88/4
88/4
-------
9355.0-24
FY'89 Enforcement RA Start Candidates
REGION State
MA
NH
II
NY
NY
NJ
PR
NJ
PR
NY
NY
NY
(ENFORCEMENT CONFIDENTIAL)
SITE NAME
Industri-Plex
Tinkham Garage
Samey Farm
Ciba Geigy
Diamond Alkali
Vega Alta
Ringwood Mines
GE Wriring
Hooker (S-area)
Ludlow S & G
GM/Cen. Foundry
LEAD
RP
RP
RP
RP
RP
RP
RP
RP
RP
RP
RP
RD
QtrStart
88/1
87/4
88/4
RA
QtrStart
89/1
89/1
89/2
89/2
89/1
89/1
89/2
89/2
89/4
90/1
90/2
III DE Army Creek L/F RP 87/4 89/2
MD Sand, Gravel & Stone RP 88/1 89/1
MD • Limestone Road • • RP 88/2 89/2
DE Tybouts Corner L/F RP 88/2 89/2
DE Harvey & Knott RP 87/4 89/1
PA Henderson Rd. RP 89/4
WV' Ordnance Works Disp RP 89/4
VA Avtex Fibers . RP 89/4
PA Whitmoyer Lab RP 90/1
PA Middletown Air Field RP 90/1
IV FL Brown Wood Pres. RP 88/2 89/2
SC Carolawn RP 89/1
FL Alpha Chemical RP 89/2
FL Gold Coast RP 89/3
FL NW 58 St L/F RP 89/4
NC Martin Marietta/Sodeyco RP 89/4
NC Celanese Fiber RP 90/1
KY AIRCO RP 89/3
KY BF Goodrich RP 89/3
NC Chemtronics RP 90/1
MS Flowcod RP 90/1
V IN Northside L/F RP 88/1 89/2
IN Envirochem Corp. RP 88/1 89/1
IN Neal's Landfill RP 2/15/86 89/2
MN Waste Disposal RP 87/4 89/1
MN FMC Corp. RP 88/1 89/1
OH Coshocton L/F RP 88/1 89/1
IL Johns-Manville RP 87/3 89/2
IN Lemon Lane L/F RP 89/3
IN Neal's Dunp/Spencer RP 89/4
IN Bennett Stone RP 89/4
-------
9355.0-24
FY'89 Enforcement Candidates (cont.)
(ENFORCEMENT CONFIDENTIAL)
REGION State
VI
VII
VIII
IX
OR
TX
TX
TX
MM
TX
OK
OK
MM
KS
SD
MT
CO
CO
CA
CA
CA
AZ
CA
CA
CA
CA
CA
CA
CA
CA
CA
CA
AZ
OR
OR
SITE NAME LEAD
Tinker AFB FF
Motco Inc. RP
Brio Refining RP
Dixie Oil Processors RP
AT&SF (Clovis) RP
French RP
Hardage/Criner RP
Sand Spring RP
South Valley RP
Doepke Disposal RP
Whitewood Creek RP
Burlington Northern RP
California Gulch RP
Broderick Wood • RP
MGM Brakes RP
Coast Wood Pres. SE
Firestone Tire SE
19th Ave L/F SE
Liquid Gold Oil SE
Fairchild Canera/Mt.View RP
Signetics SN
Intel Corp (Mt. View) RP
Raytheon RP
Koppers Co. RP
Fairchild Camera/ S.J. SE
Westinghouse Electrical SE
Hewlitt Packard SE
Montrose Chem. RP
Litchfield Airport RP
Gould, Inc. RP
Martin Marietta Alum. RP
RD
QtrStart
88/2
3/27/85
88/1
88/1
88/2
RA
QtrStart
89/2
89/1
89/4
89/4
89/4
90/1
89/3
89/3
. 89/4
89/2
89/4
89/3
88/3
88/4
89/3
89/1
89/1
89/2
89/2
89/2
89/2
89/3
89/3
89/4
89/4
89/4
90/1
89/3
89/3
89/4
90/1
-------
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D C 20460
JAN I 5
OFFICE Of
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Key RCRA and^Super fund Decisions in Second Quarter FY 38
f,Jz3Z~T
FROM:
TO:
J. Winston*'Porter
Assistant Administrator
Regional Administrators
Regions I - x
The purpose of this neiio randu.it is
of the key RCRA and Superfund decision
quarter of FY 88. Following up on our
quarter progress, I want to continue a
regarding these important activities.
and I look forward to hearing from you
feel need special consideration.
to provide you with a list
milestones for the second
recent discussions of first
dialogue with each of you
Your comments are appreciated,
about any issues that you
We invite your personal attention to He following signifi-
cant activities: RCRA permits, corrective iction, and closure
plans; RCRA significant noncompliers; SuperTund records of decision
(RODs); Superfund settlements; Super fund r^-.edial design and con-
struction starts; Superfund site completion and deletions from
the National Priorities List (NPL) ; and Superfund cost recovery
actions. I have added RCRA and Superfund activities at Federal
Facilities to this •7ieRiorandu.il in order to focus additional
attention on these important items.
RCRA PERMITS, CORRECTIVE ACTION, AND CLOSURE PLANS
The Regions and States did well in meeting first quarter
commitments. The second quarter workload for land disposal is 16
permits (cumulatively 36), and the incinerator commitment is five
(cumulatively 6). I want to stress the importance of completing
these permits in a timely fashion as the workload will continue to
increase as the year progresses. A summary of the work to be
accomplished in the second quarter can be found on Table 1. In
addition, 37 closure plan approvals are due this quarter.
While the permitting and closure workload is substantial,
we also need to place increased attention on implementing the
corrective action program. This is potentially"important at
facilities where we know significant releases have or are likely
to have occurred.
-------
_ •> _
SCRA SIGNIFICANT MO'.'-CDy ?L [ iSS (SMCs)
v»e saw improve-ne-i- Ijrna FY 37 in bringing RC3A SVJGS
compliance- within the prescribed 135-day period. With your
continuing efforts, we anticipate that 50 percent of the FY 88
unaddressed BOY SMCs will oe addressed by the end of the second
quarter. I urge you to continue the progress shown in the first
quarter towards the cleanup of HWDMS data, which is necessary as we
continue to implement automated reporting for the RCRA enforcement
program.
-SUPERFUND RECORDS OF DECISION
Recent progress reports show a significant lag in the first
quarter for both Fund and Enforcement RODS, with only nine of the
21 RODs completed. To insura future RD & RA starts, we must keep
thevpipeline full by starting and completing the RODs and RI/FSs
scheduled for FY 88. Accomplishing the second quarter ROD targets
is crucial to our success in neeting the mandated 175 RA starts by
October 1989. I urge you to pay close attention to these projects
so that they are completed on time. Please call on us if we can
assist in meeting these deadlines. The Superfund RODs scheduled
for the second quarter, including those carried over from first
quarter, are listed in Table 2.
Let me close the ROD discussion by rei . ^rating my instruction
that most RI/FSs should be completed in 18 mths or less. I
request that you ensure that your staff and rontractors understand
this clearly.
REMEDIAL DESIGN AND CONSTRUCTION STARTS
As noted above, the statutory requirement in SARA for 175
Remedial Action (RA) starts by October 1989 continues to be a
major focus for the remedial program. Projects
-------
\
in Table 3). ^s you :an ses from Taale 5, -ners is a - JT, i.-Ja
difference between 3?MS cachets and sites projected £oc negotiation
completion*. While this is partly associated with ROD delays, it
also indicates probla-ns in integrated planning of camedy selection
and negotiation"activities, finely preparation for negotiations
and issuance of special notice are essential to moving sites through
negotiations and into design/construction activities with tiinimal
delay.
Regarding those sitas where extensions of negotiations beyojnd
the 30-day discretionary period are considered, the Regional Adm'in-
istrator should contact tie personally to request further extensions.
Please note sitas in Taole 5 which are in this category.
SUPERFUND SECTION 107 REFERRALS
Please refer to Table 6 for a list of second quarter Section
107 referrals. Please keep in mnd that referral i candidate
selection should be based primarily on two criteria: (a) sites
above $200,000 with upcoming potential statute of limitations
dates; and, (b) sites with the largest potential revenues for
the Trust Fund. The second criteria requires that we look at
sites where remedial action has been initiated, or at the largest
completed removals as our highest priority. Your staffs should
continue to re-evaluate current plans for 7>st recovery referrals
based on these criteria, and some substitut•ins of sites may be
appropriate.
NPL DELETION AND SITE COMPLETION CANDIDATES
I was very disappointed to find that almost all first quarter
commitments for site deletions and completions have slipped to
later quarters. As you know, successful completion of remedial
actions continues to be one of our highest priorities. It is a
major "bottom-line" that the public equates with our success towards
cleaning u_p__ sitas. Such successes require extensive Headquarters
and Regional teamwork.
Site deletions require that our response actions are complete,
and that th« reports, data, and the Federal Register notice needed
for the delation are ready for public review. I encourage you to
move forward on deletions, but also keep public credibility in mind
when preparing the needed information for the public notice and
Federal Register notice. I also request that you continue to look
for additional projects that could become deletion or completion
candidates. Table 7 lists again all of the current FY 1988 deletion
and completion targets.
-------
FEDERAL FACILITIES
Federal facilities ^'^ * nigh priority and Congrass ional and
public scrutiny of tnese acti;ities is likely to continue in the
coming year. Therefore, I want to start including key Eederal
facility activities in these quarterly memos. Two key outputs
which indicate progress in cleaning up Federal facilities are
CERCLA Section 120 Agreements and RCRA permits at Federal facilities,
Table 8 shows the ongoing negotiations for Section 120 agreements,
which are expected to conclude in the second quarter. The permits
which are scheduled to D
-------
Taole 1
-.ANT DISPOSAL PERMITS
SECOND QUARTER FY 1988
i
Region
II
IV
VI
VIII
IX
NJ Amerada Hess
MS Xoppers
*MS Morton Thiokol
FL American Cyanamid
MI Ford Motor Co - Allen Park
*MI Wayne Disposal
*IL CID Landfill
LA Union Carbide
NM Navaho Refining
TX Dow Chemical
TX USX
TX Texas and Border Steel
TX Celanese
rtY Sinclair Oil Corp.
CA Chemwest, Inc
**CA Mare Island Naval Shipyard
NV US Ecology
WA Occidental Chera Corp
INCINERATOR PERMITS
SECOND QUARTER 1988
III * wv American Cyanamid
IV TN DuPont
**TN DOE-Oak Ridge
V IL Trade Waste Incineration
Ross Incineration
* Slipped from First Quarter
**Indicates Federal Facility
-------
'i* ;'(
Reaion
II
III
IV
VI
VII
VIII
IX
Fund
Cannon Eng
Yaworski
Iron Horse
Corp,
*York Oil, NY
*American Thermostat, MY
Montclair, NJ
Glen Ridge, MJ
Tabernacle Druti, \j
Nascolite, MJ
Delaware Sand/Gravel, D
LA Clarke, VA
*Belvidere, IL
*United Scrap, OH
Summit Mational, OH
South Andover, MN
Springfield, MI
Rastnussen's Dump, Ml
Eau Claire, WI
French LTD, TX
Midland Product, AR
Sol Lynn, TX
Arkansas City Dump, KS
Hastings, NE
*San Gabriel Valley, CA
Area $2
Tucson Airport, CA
Enforcement/.^?
Laurel Park, CM
*Ciba Geigy, NJ (will slio to 83/3
*Upjohn, ?S
Kin-Buc LF, NJ (will slip to 38/3
Old Bethpage Landfill, MY
*New Castle Steel, OE
Ordnance Works
Disposal, WV
Chisman Creek, VA
West Va. Ordnance, WV
Celanese Corp, NC
Cherattonics, NC
Carolawn, NC (will slip to 88/3)
Perdido, FL (will slip to 88/3)
Wamchem, SC (will slip to 88/3)
Cosho-ton L.F., OH
Cliff low, MI
Brio-Refining, TX
*Shenandoah, MO (may slip due
to Times Beach)
Syntex-Verona, MO
*Broderick Wood
Products, CO
California Gulch, CO
*MGM Brakes, CA (will slip
to 88/4)
Commencement Bay/So.
Takoma Channel, WA
* Slipped from First Quarter
-------
Table
Region
I
II
III
SUPERFUND REMEDIAL DESIGNS (FIRST-START)
SECOND QUARTER FY 1988
EPA-Lead Responsible Party-Lead
Industri-Plex, MA
Montgomery Township, NJ
(being completed as removal)
•Volney Municipal, NY
••Waldick Aerospace, NJ
••Clothier, NY
Fulton Terminals, NY
Williams Property, NJ
American Thermostat. NY
•Montclair/W.Orange, NJ
•Glen Ridge Radium, NJ
Haviland Complex, NY
Saltville Waste. VA
Kane & Lombard, MD
Army Creek, DE
Katonah Wellfield, NY
Renora, Inc., NJ
Vega Alta Wells, PR
Tybouts Corner, DE
Limestone Road, MO
Palmerton Zinc, PA
IV Zellwood G.W., FL
Independent Nail Co., SC
Palmetto Wood, SC
V «Laskin Poplar, OH
•Liquid Disposal, MI
•Rose Township, MI
Summit National, OH
••Envirochem Corp, IN
Pristine, Inc., OH'
Springfield TWP, MI
••Marion (Bragg) Dump, IN
Belvideve Mun. LF, IL
••Northside Sanitary, IN
United Scrap Lead, OH
VI Covpass Industries, AR
Crystal City Airport, AR
VII Cherokee County, KS
VIII ••Central City Clear Creek, CO
IX "San Gabriel Valley, Area 2, CA
Tucson Int'l Airport, AZ
X Frontier Hard. Chrome, WA
Powersville, GA
NW 58th St. Lfill, FL
Pioneer Sand, FL
Hipps Rd.. FL
Waste Disposal Eng,'MN
••Marshall, CO
Anaconda (Mill Creek), MO
Smuggler Mountain, CO
••Operating Industries, CA
•Projects were financially committed 88/1; obligations not yet in FMS
••Slipped from First Quarter
-------
Region
I
Taole 4
'-" SUPERFL'VO ?:'~..-;\L ACTION (FIRST-STARTS)
SECOND QUARTER ft 1988
EPA-Lead Responsible Party-Lead
*Nyanza Chem, MA Beacon Heights, CT
II
Lang Prooert/, MJ
Caldwell Trucking, NJ
Sinclair Refinery, MY
Montclair/W.Orange, NJ
Glen Ridge Radiu.n, NY
G.E. Moreau, NY
**01ean, NY
III
Palmerton Zinc, PA
Delaware City, DE
Tysons Dump, °\
**Miami Druii, FL
Davie Landfill, FL
Lehillier/Mankato, MN
Spiegelburg, MI
New Lyme, OH
Novaco, MI
Metaiiora, MI
•::rthern Engr. Co., wi
'.-jals Landfill, IN
VI
Mid-South Wood Prod., AR
VIII Denver Radium, CO
Arsenic Trioxide, ND
Rocky Mount. Arsenal, CO
Anaconda Smelter
IX
Iron Mountain, CA
**0el Norte,CA
* Projects were financially committee in 88/1; obligations not yet in FM
** Slipped from First Quarter
-------
: '•. ?\\::\i: - -IV" ••>:
DARTER
1938
Region
I
II
III
IV
VI
VII
VIII
IX
-SPMS
Target
11
4-
3
5
0
Site
Davis Liquid Wasca
*lndustri-?lex
Diamond Al'oli
Havi land
Katonah tfellfield
Meta 1 tec /Aerosys terns
*Renora, Inc.
'•/ega Alta P/S Wells
volney
Williams Property
DE Sand & Gravel
Limestone Road
*Saltville Waste Disposal
*Hipps Road
NW 58th Street L/F
Palmetto wood Preserving
*Pioneer Sand
*Powersville Site
Fields Brook
*Laskin/Poplar Oil
*LDI
Marion (Bragg) Dump
Pristine, Inc.
*Rose Township
Seymour Recycling
Compass Industries
Sand Springs Petro.
Times Beach
*Anaconda Co. Smelter
*Litchfield Airport
*Stringfellow
Deadline
3/30
**RA extended to 13/33
3/30
3/3
1/2
3/31
12/31
3/16
3/17
3/31
3/31
3/30
RA extended to 1/21
***ll/30
3/31
3/15
**RA extended to 10/31
RA extended to 1/21
2/15
1/11 via Admin. Order
RA extended to 1/28
RA extended to 1/10
2/26
RA extended to 1/5
2/15 (in litigation)
3/4
2/20
3/31
1/9
RA extended to 2/9
1/23
* Slipped from 88/1 or FY 1987
** AA Extension Required
*** RA Extension Required
-------
Table 6
SECTION 137 REFERRALS
SECOND QUARTER FY 1988
Region Site Name
I Stamina Mills, RI
Tibbetts Road, MH
II Hudson River PC3s
Marathon Battery Corp., NY
III Lavelle Borehole, PA
Swissvale Auto Parts, PA
IV * Lee's Lane, KY
Aberdeen Pesticides, NC
Yellow Water Road, FL
BMP Industries/Petro Products, AL
V None planned for 88/2 to Region exceeding 88/1 target
VI
VII Castlewood, MO
Quail Run, MO
VIII
IX "Creative Dynamics, CA
Copperopolis, CA
Gila River, CA (will slip and/or be substituted)
* Slipped from First Quarter
-------
Region
I
II
III
IV
V
VI
VII
VIII
IX
X
7-iole 7
*IPL DELE?;;*/: ,:;:M AND SITS COMPLETIONS (so
SECOND QUARTER FY 1988
Site Name
None
G.E. Moraau (3C)
Cooper Road (:;o)
ABM Wade (SC)
Westline Site (SC)
Taylor 3orough Dump (SC)
Matthews Electroplating (ND)
Presque Isle (ND)
ABM Wade (ND)
Pepper Steel & Alloys (SC)
Monsanto, Augusta Plant (ND)
Tri-City Oil (ND)
Varsol, (ND)
Mowbray, (ND)
Gall away pits, (ND)
A.L. Taylor, (ND)
Newport Dump (ND)
Lee's Lane, (ND)
NONE
Highlands Acid Pit (SC)
Bio-Ecology System (SC)
Triangle Chemical (ND)
Labounty Site (ND)
...Fulbright (ND)
NONE
Jibboom Junkyard (ND)
United Chrome Products (SC)
Quarter
88/4
38/4
88/1
88/3
38/4
88/2
88/2
88/3
88/3
88/4
88/1
88/1
88/2*
88/2*
88/3*
88/3*
88/3*
88/1
88/4
88/2
88/3
88/4
88/2
88/4
* Slipped from First Quarter
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' •»
FEDERAL
JriOM 123 IA3S
QUARTER FY 1988
SITE
VI
VII
VIII
IX
Latt<»c'«enny Amy Depot
Joliet Ac-ny Ammunition Plant
Wtight-Pattarson AF3
Tinker Air Force Base
Louisiana Ar.ny Ammunition Plant
Lawrence Livermore Nat' 1 Lab
Norton Air Force Base
DOE Hanford Site
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. Z0460
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
JAN 2 5 1988
MEMORANDUM
SUBJECT: Enforcement Actions Under RCRA and CERCLA at
Federal Facilvjo^s
FROM: J. Wirrg^on" Porter , Assistant Administrator
Office of Solid Waste and Emergency Response
TO: Regional Administrators
Regions I-X
BACKGROUND
Statutory language makes it clear that Federal facilities
must comply both procedurally and substantively with RCRA and
CERCLA in the same manner as any non-Federal entity. The purpose
of this memo is to lay out the statutory authorities under RCRA
and CERCLA that EPA may use at Federal facilities to achieve
compliance and expeditious cleanup.
Over the past year, a great deal of effort has been spent
identifying those enforcement tools that are available to EPA in
the hazardous waste programs to achieve a higher level of
compliance at Federal facilities. Specifically, the successful
negotiation of individual agreements such as the corrective
action order with the Department of Energy (DOE) at the Idaho
National Engineering Lab and the Interagency agreement with the
Department of Army (DOA) at the Twin Cities Army Ammunition Plant
demonstrated significant progress in efforts to achieve
compliance and cleanup at Federal facilities. Further
clarification of EPA's enforcement capabilities at Federal
facilities has come from the Department of Justice in
Congressional testimony.
To continue the above progress in resolving compliance and
cleanup issues at Federal facilities, I am outlining the
enforcement and permitting response actions that EPA can
currently implement to formalize compliance and cleanup actions
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at Federal facilities. A description of the available
enforcement and permitting response actions is given for each of
the following scenarios.
1) A Federal facility with RCRA compliance issues.
2) A Federal facility with RCRA corrective action issues.
3) A Federal facility with CERCLA issues.
4) A Federal facility with RCRA and CERCLA issues.
I. A FEDERAL FACILITY WITH RCRA COMPLIANCE ISSUES
At a Congressional hearing on April 28, 1987 before the
House Oversight and investigation Sub-committee, of the Committee
on Energy and Commerce, the U.S. Department of Justice testified
that EPA may not issue Administrative Orders at Federal
facilities under Section 3008(a) of RCRA to address compliance
violations of regulatory requirements. (See Attachment 1 for a
copy of DOJ's Congressional testimony). When addressing RCRA
compliance violations, EPA will issue the Federal facility a
Notice of Noncompliance (NON). EPA will then negotiate a Federal
Facility Compliance Agreement (FFCA) to resolve the compliance
issues outlined in the NON. Detailed below is a description of
the components of a NON and a FFCA.
A. Federal Facility Notice of Noncompliance
EPA will issue a Notice of Noncompliance (NON) as the
initial enforcement action at a Federal facility with RCRA
compliance violations. The notice should be sent to the
responsible Federal official at the facility, or their delegate.
The issuance of a NON at a Federal facility is parallel to the
issuance of a RCRA Section 3008(a) administrative complaint to a
private facility and, therefore, must conform with a RCRA Section
3008(a) complaint in content and format. As outlined in the
model language (Attachment 2), the NON should contain the
following components:
1) A general reference to the Resource Conservation
and Recovery Act as amended.
2) The factual basis for the issuance of the NON
(e.g., acts, omissions and conditions- identified during
an inspection).
3) A reference to the waiver of sovereign immunity under
Section 6001 of RCRA.
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4) A reference to the citizen suit provisions of Section
7002 of RCRA.
5) A reference to administrative, civil, and/or criminal
sanctions under Section 3008 of RCRA that may be
app.lied to an individual who is in charge of hazardous
was'te management activities at a facility.
6) A detailed allegation of all RCRA violations with
citations to authorized state or EPA regulations.
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7) A detailed compliance schedule (both actions and
timeframes) for the correction of violations.
8) The alternatives to the actions provided for in the NON
(e.g. , Presidential exemption or specific legislative
relief from Congress). '
9) A specific date or timeframe by which the Federal
facility must provide a written response to EPA
regarding their plans for addressing the violations
outlined in the document and/or a specific date for a
conference.
It is essential that the NON specify the violations, remedy,
and timeframes for implementing the remedy in the same manner
that a strong administrative or civil complaint would be drafted.
B. Federal Facility Compliance Agreement
After the NON has been issued, the final negotiated document
resolving compliance violations between the Federal facility and
EPA will continue to be called a Federal Facility Compliance
Agreement (FFCA). A very important section in any new FFCA is
the enforceability clause. Model enforceability language is
attached (Attachment 3) for your inclusion in any new FFCA.
Where appropriate, and when you can obtain expeditious agreement
from the affected Federal facility, you should add the
enforeability clause to existing Federal Facility Compliance
Agreements as well. This language reflects EPA's view that a
"requirement" in Section 7002 includes statutory and regulatory
requirements and other items which are mandated by these
requirements (e.g., schedules of compliance, various plans,
recordkeeping and reporting) and that this final negotiated
document is enforceable under Section 7002. This language also
recognizes that under RCRA Section 6001, Federal agencies are
required to comply with the agreement, subject to available
appropr i at i ons.
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All FFCAs should contain the model dispute resolution
clause found at Attachment 4. This dispute resolution language
emphasizes resolution of disputes at a lower level. In cases
where disputes are escalated to higher levels, the EPA
Administrator is the final decision maker.
C. issuance "of RCRA Section 3008(a) Order to a Government-Owned
Contractor Operated Facility (GOCO)
When addressing RCRA compliance issues at a Federal
facility, EPA also has the option of issuing an enforcement
action against the non-Federal operator of a facility. In many
cases, contractors have the operational responsibility for waste
generation and management operations at a Federal facility.
At the aforementioned Congressional hearing on this topic,
DOJ stated that they saw no constitutional or statutory problems
to asserting Section 3008 authority (or any vother authority)
against contract operators of government-owned facilities
(GOCOsMsee Attachment I, DOJ Testimony). This means that EPA
and the states have the full range of enforcement authorities
under RCRA and CERCLA at GOCOs that are available for private
facilities.
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Actions against GOCOs can be valuable enforcement tools,
especially at facilities where the contractor does the majority
of the waste management work (i.e., DOE facilities). On a
factual basis EPA has not experienced trouble establishing the
contractor as the operator. The Mixed Energy Waste (MEWS) task
force found that at most of the major DOE facilities the
contractor(s) were responsible for the day-to-day operations and
long term management, or oversight of hazardous waste at the
facility. In some instances, both the Federal agency and the
contractor(s) are the operators. A memo labeled Attachment 5 in
this package gives some criteria for determining the operator at
a Federal facility.
GOCOs are not shielded from enforcement actions for
non-compliance with environmental laws. Therefore, I strongly
encourage you to determine who is the operator of hazardous waste
management activities at a Federal facility when developing an
enforcement strategy at the facility. You should then examine
the factual association of the contractor at the facility. When
the primary operator at a Federal facility is clearly the
contractor(s), and the factual basis for the enforcement action
is clearly defined, you should consider the use of all RCRA and
CERCLA authorities available for non-Federal facility actions.
The Federal Facilities Compliance Task Force in the Office of
Waste Programs Enforcement and the Office of Enforcement and
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Compliance Monitoring will be working with your staff to identify
those cases which may be good candidates for a GOCO enforcement
action.
II. A FEDERAL 'FACILITY WITH RCRA CORRECTIVE ACTION ISSUES
A. Corrective Action Orders (3008(h)) at Federal Facilities
With regard to corrective action and the applicability"of
administrative orders under RCRA Section 3008(h) at Federal- -~:
facilities, DOJ has taken the view that corrective action orders
are integral to the permitting process. I Since Section 6001 of
RCRA expressly requires Federal facilities to comply with
hazardous waste permits, DOJ has concluded that administrative
orders under Section 3008(h) can be issued to Federal facilities.
Based on this DOJ determination, Section 3008(h)
administrative orders should be issued whenever possible and
appropriate (e.g. , an interim status facility which is not
seeking a RCRA permit or the issuance of the permit is not
expected in the near future). The existing administrative
procedures for issuing RCRA 3008(h) orders, as set forth in the
February 19, 1987 memorandum to the regional offices, will be
applied to Federal agencies. However, Federal agencies will have
the opportunity to elevate disputes to the Administrator for a
final decision in the event a dispute cannot be resolved at the
Regional Administrator level, consistent with these procedures,
EPA will issue orders as necessary, and provide a reasonable
opportunity for Federal agencies to discuss the order with EPA.
If the Federal agency chooses not to invoke these procedures, the
order becomes final and effective.
As in the NOW and FFCA, a Section 3008(h) order being issued
to a Federal facility should state the waiver of sovereign
immunity found in Section 6001 of RCRA. It should also contain
the model dispute resolution language found in Attachment 4. The
the model enforceability language found in Attachment 3 is not
necessary since the order will explicitly cite the statutory
authority in Section 3008(h), and is, therefore, enforceable
under Section 7002 of RCRA. There should be no difference in-
the factual basis for the issuance of a corrective action order
between a private facility and a Federal facility. The initial
order should be sent to the responsible Federal official at the
facility, or their delegate.
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B. Issuance of a 3008(h) Order to a Government-Owned
Contractor-Operated Facility (GOCO)
As described in Part III, RCRA Compliance, Section C, DOJ
has determined that EPA has the authority to exercise all of its
Section 3008 enforcement options at GOCOs. This authority is not
limited to RCRA compliance issues under Section 3008(a). It
includes corrective action authorities under Section 3008(h) and
Section 3013 of RCRA. All CERCLA enforcement authorities apply
to GOCOs as well.
III. A FEDERAL FACILITY WITH CERCLA COMPLIANCE ISSUES
"- A. Section 120 Interagency Agreements
Under section 120 of the Comprehensive Environmental
Response Compensation and Liability Act as amended by the
Superfund Amendments and Reauthorization Act (hereinafter
referred to as CERCLA), Federal agencies must enter into an
"interagency" agreement (IAG) for all necessary remedial actions
at--Federal facilities on the NPL.
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The Agency is viewing the Section 120 Interagency agreement
as a comprehensive document to address hazardous substance
response activities at a Federal facility from the remedial
'investigation/ feasibility study (RI/FS) through the
implementation of the remedial action. All such interagency
-agreements must comply with the public participation requirements
of Section 117. The timetables and deadlines associated with the
RI/FS and all terms and conditions associated with the remedial
actions (including operable units or interim actions) are
enforceable by citizens and the States through the citizen suit
provisions of Section 310 of CERCLA. In addition, Section 122(1)
of CERCLA authorizes the imposition of civil penalties against
Federal agencies for failure to comply with interagency
agreements under Section 120. Procedures for imposing these
penalties are provided for in Section 109 of CERCLA.
fi. Other qERCLA Authorities Available at Federal Facilities
EPA has the authority to "issue administrative orders to
Federal agencies under- Section 104 and Section 106 of CERCLA.
Section 106 orders should be used where needed to assure
compliance with Federal facility requirements for response
action.J Orders under Section l04(e)(5)(A) of CERCLA can be used
to collect information and obtain access to Federal agency sites
where needed.
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Executive Order 12580 clarifies that EPA is authorized to
issue Section 104 and Section 106 administrative orders to other
Federal agencies, with the concurrence of the Department of
Justice. Section 4(e) of the Executive Order provides-that:
Notwithstanding any other provision of this Order, the.
authority"under Section 104(e)(5)(A) and Section 106(a) of
the Act to seek information, entry, inspection, samples
or response action from Executive Departments and
agencies may be exercised only with the concurrence of the
Attorney General.
CERCLA enforcement authorities under Section 106, both
administrative and judicial, can be used against government
contractors at Federal facilities. Administrative orders against
contractors do not require concurrence of the Department of
Justice. In addition, Section 120(e)(6) provides that, if the
Administrator determines that the response actions can be done
properly at the Federal facility by another responsible party,
then the Administrator may enter into an agreement with such.
party under the settlement provisions of Section 122 of the
statute. Following the approval by the Attorney General of-any
such agreement relating to a remedial action, the agreement will
be entered in the appropriate United states district court as a
consent decree under Section 106 of CERCLA.
States also have a variety of enforcement authorities under
CERCLA, so the exercise of EPA's enforcement authorities should
be closely coordinated with the States. First, Section 121(e)-(2)
of CERCLA authorizes States to enforce any Federal or state
standard, requirement, criteria or limitation to which the
remedial action must conform under CERCLA. Second, Section 310
authorizes citizen suits to require Federal agencies to comply
with the standards, regulations, conditions, requirements, or
orders which have become effective pursuant to CERCLA including
lAGs under Section 120 of the Act. Third, Section I20(a)(4)
clarifies that State laws concerning removal and remedial action,
including State laws regarding enforcement, are applicable at
Federal facilities not included on the NPL. In addition, Section
120(i) states that nothing in CERCLA=section 120 shall affect or
impair the obligation of the Federal agency to comply with the
requirements of RCRA, including corrective action requirements
(see section IV.C., "Importance of-the States-as a-Party to.the
IAG"). EPA enforcement actions against .Federal agencies should
therefore be carefully coordinated with States, to avoid .
potentially duplicative or conflicting exercises, of authority.,-
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IV. A FEDERAL:FAGILITY WITH CERCLA AND RCRA ISSUES
In many'cases, facilities subject to an IAG will also have
•RCRA"liabilities. ' The most common example of the RCRA/CERCLA
overlap is-where-'a unit(s) at the facility has interim status or
a permit"under.RCRA and a portion of the facility is undergoing a
CERCLA remedial investigation.
A1:' Enforcement Options
"When developing a comprehensive strategy for addressing both
RCRA"and'CERCLA issues at a Federal facility, EPA and the states
snbiild consider the following options, alone or in combination,
'as possible mechanisms for getting enforceable requirements in
place:
1. A RCRA permit
All RCRA Subtitle C permits issued after November 8, 1984,
will contain provisions for implementing the corrective
action requirements of 40 CFR Part 264 Subpart F (or
authorized state requirements), and Section 3004(u) and (v) of
RCRA". For facilities that have or are seeking a RCRA permit, the
requirements for a "CERCLA" remedial investigation'and cleanup
could be met by implementing these requirements through RCRA
corrective action. It is important to keep in mind, however,
4 "'that- the extent of coverage of the RCRA permit is generally
limited to hazardous wastes/constituents (e.g., some CERCLA
9' Hazardous substances such as radionuclides are not RCRA hazardous
"constituents and, therefore, the permit may not be able to
' address all of the releases at a facility).
2. A RCRA Corrective Action Order
The corrective action authority under Section 3008(h) of RCRA
can be used at RCRA interim status facilities to address releases
from RCRA regulated units and other solid waste management units.
"At a Federal facility that has interim status, a RCRA corrective
'action order could address the investigation and clean-up of
releases in lieu of a "CERCLA" response action or as an interim
measure. .(Again, the extent of coverage in the RCRA corrective
.action'order is ii'miteo/ to:RCRA hazardous wastes/constituents.)
3.' 'Imminent ~and-Substantial Endangerment Orders
CERCLA Section 106 can be used to address releases from RCRA
units or CERCLA- sites --when- an.-, l1 imminent and .substantial
endanger.ment'| is shown.
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4. An Interagency Agreement under Section 120--.of .CERCLA
A Section 120 IAG could be drafted to incorporate all RCRA
corrective action requirements and CERCLA statutory requirements.
Where some or all of a Federal installation has been,, listed on
the NPL, the .CERCLA Section 120 IAG is required for remedial .
action by statute.
The first agreement under Section 120 of CERCLA. (IAG) was
finalized on August 12, 1987. The IAG at Twin' Cities Army'
Ammunition Plant (TCAAP) is a three party agreement between EPA,
the State of Minnesota, and the U.S. Department-of, the Army.,?
Several notable provisions that should be incorporated in every
CERCLA Section 120 IAG include a dispute resolution process"that
denotes the EPA Administrator as the final decision maker, an~
enforceability clause which states that provisions of the
agreement are enforceable by citizens and the State through the
citizen suit provision of Section 310 of CERCLA, and a means for
resolving both the RCRA and CERCLA requirements when both
statutes apply. Further guidance on CERCLA Section 120
agreements is being developed and will be made available to the
Regions as soon as possible. In the interim, the Regions should
consult with Headquarters on any IAG issues they encounter
B. Strategy for Action at RCRA/CERCLA Sites
The decision on which of the above mechanisms to employ .at a
Federal facility will be made on a facility specific basis.
However, if the Federal facility is on the NPL or is likely. ±."0 be
placed on the NPL, I encourage the use of a Section 120 IAG. "to.
incorporate both RCRA and CERCLA activities under one enforceable
agreement and to serve as a comprehensive plan for investigatory
and remedial activities at the facility, whether RCRA or CERCLA.
EPA, the State, and the Federal facility would agree on a
facility wide strategy, setting priorities and schedules for
action. If properly framed, the agreement would satisfy the
facility's RCRA corrective action requirements,as well as the
public participation requirements of Section 117 of CERCLA and
Part 124 of RCRA. At a later date, if appropriate, corrective/
remedial action requirements found in the IAG could be incor-
porated into the RCRA permit for; thgse. facilities seeking ari
operating or post-closure permit-? -in^satisfaction of RCRA
Section 3004(u) and (v) requirements. An Interagency'agreement
under Section 120 of CERCLA does not^-serve as the replacement for
a RCRA permit at a unit seeking an operating permit.
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C. Importance of the State as-a.-PartV to the IAG .-
CERCLA Section 120(i) states that'nothing in"CERCLA Sebtion
120 shall affect or impair the obligation of the Federal agency
to comply with the requirements of RCRA, "including the
corrective action requirements." One interpretation of CERCLA
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Section I20(i) .is .that the provision allows "re-cleanup" of a
, rVieaseltisijig'^cka; "corrective action authorities during or after
'VcieaViup'd'f that'Ve lease under CERCLA; this could be a problem
if a State, authorized to implement the RCRA program, contested
the tec-hniqal standards of an IAG. In order to avoid arguments
-over th.e "interpretation of Section 120(i), as well as to avoid
V>ten,tial"Lyt applicative exercises of authority, I encourage the
inQlusiJbn^bf -the .'State as a full signatory party for lAG's at
RCRA faci"iiti:es.''
A. three, party agreement will ensure the following state
~rdle> 'in a
0 appropriate application of state clean-up standards
0 "public participation requirements
0 " enf orceabi lity
0 involvement in setting priorities
0 .dispute resolution
0 review and comment on technical documents
This type of agreement would resolve differences between
and state requirements up front.
CONCLUSION
This memo is the first step in developing an integrated
RCRA/CERCLA Federal facility compliance and cleanup strategy.
The fundamental principle of the strategy is that there is no
difference between environmental standards for Federal facilities
and private facilities. EPA holds Federal facilities accountable
for 'environmental cleanup and will proceed with enforcement
actions at Federal facilities in the same way that we would
proceed at private facilities. Although the limitations of
enforcement authorities at Federal facilities have frustrated
EPA's enforcement capabilities in the past, the RCRA corrective
action requirements in combination with CERCLA authorities under
Section 106 and Section 120 provide many options for achieving
cleanup at Federal facilities.
I have recently established a Federal Facilities compliance
Task Force within OWPE which is dedicated t-o achieving compliance
and cleanup at Federal facilities. The Task^Force will be
working closely with the CERCLA Enforcement Division and RCRA
Enforcement Division of OWPE, other offices within Headquarters,
and the Regions to develop guidance and policy regarding Federal
facilities, to resolve difficult issues that arise from EPA's
negotiations with Federal facilities, to track ongoing
negotiations between EPA and Federal agencies, to pinpoint areas
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for potential enforcement response, and to relay the Agency*s
efforts at resolving compliance, corrective action arid permitting
issues at Federal facilities.
I am requesting that you forward any Federal Facility
Compliance Agreements, Interagency Agreements, etc., that you are
negotiating with Federal facilities in your Region to Gene A.
Lucero, Director of the Office of Waste Programs' Enforcement ^
(Mail Code: WH-527).
As I mentioned earlier, the Task Force will "be'.working with
the Regions to pinpoint areas for possible enforcement action.
As DOJ has encouraged EPA to take appropriate enforcement actions
at GOCOs, the Task Force is interested in GOCO candidates for an
enforcement action under RCRA or CERCLA. I am polling the
Regions for suggestions of Federal facilities where the need for
an enforcement action is imminent and there is a clear means of
establishing the contractor as the operator. We will provide
Headquarter's support for the development of the order and
throughout the negotiation process.
If you have any questions regarding this memorandum or
recommendations of candidates for potential enforcement actions,
please contact Christopher Grundler, Director of the Federal
Facilities compliance Task Force at FTS 475-9801. Questions can
also be directed to Jacqueline Thiell of the the Task Force at
FTS 475-8727.
Attachments
cc:
Gene Lucero, OWPE
Roger Marzulla, DOJ
Henry Longest, OERR
Tom Adams, OECM
Marcia Williams, OSW
Frank Blake, OGC
Richard Sanderson, OFA
Hazardous Waste Management Division Directors, Regions I-X
Regional Counsels, Regions I-X
CERCLA Branch Chiefs, Regions-I-:X
RCRA Branch Chiefs, Regions i-X_
Federal Facility Coordinators
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