United States	Office of	Publication 9360.3-06FS
Environmental Protection Solid Waste and	July 1992
Agency	Emergency Response
&EPA A Guide to Removal
Enforcement
Office of Emergency and Remedial Response
Emergency Response Division, OS-210
This fact sheet summarizes a Superfund Removal Procedures (SRP) volume entitled "Removal Enforcement
Guidance for On-Scene Coordinators" (OSWER Directive 9360.3-06). The SRP volume describes the essential
components of the removal enforcement process along with recent Agency enforcement initiatives stemming from
the Management Review of the Superfund Program (the "90-Day Study"). The volume is one of a 10-part series of
documents replacing the SRP manual (OSWER Directive 9360.0-03B, February 1988). Further information
concerning this series may be found in the SRP Manual Bulletin (Publication 9360.3-111).
INTRODUCTION
The Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA,
commonly referred to as "Superfund") gives the
President the authority to negotiate settlements, issue
orders to persons including potentially responsible
parties (PRPs), or sue PRPs to repay cleanup costs
when the Trust Fund established under CERCLA has
been used to finance removal or remedial actions.
The President has delegated this authority in large part
to the Environmental Protection Agency (EPA). The
steps EPA takes to reach settlement or compel
responsible parties to perform cleanups or pay for
them are parts of the Superfund enforcement process.
On-Scene Coordinators (OSCs) conduct or contribute
to m;iny steps in removal enforcement.
EPA emphasizes enforcement in an effort to use
limited program resources effectively to ensure that
the responsible party conducts or funds response
activities. A key element of the 90-Day Study and its
subsequent implementation plan, both issued in
1989, is the "enforcement-first" approach to all
Superfund response actions. The goal of this
approach is to compel PRPs to conduct response
actions and cleanups in lieu of government-financed
response actions. This approach mobilizes private
party resources to conduct cleanup from the start,
rather than using the Fund and recovering costs later.
EPA has strong enforcement and settlement
authorities under CERCLA to obtain cleanups by
PRPs.
ENFORCEMENT AUTHORITIES
CERCLA section 104 outlines the basic statutory
provisions for removal actions. It authorizes EPA to
remove or arrange for the removal of any hazardous
substance, pollutant, or contaminant if it is deemed
necessary to protect the public health or welfare or (he
environment. Section 104 also limits these actions
to $2 million in cost or 12 months in duration, and
provides a means of gathering information on PRP
liability, site history, and the identity of additional
PRPs. Other important provisions of CERCLA with
respect to enforcement include:
•	Section 106 — authorizes EPA to issue
administrative orders to compel PRP response.
This section also authorizes EPA to enforce the
terms of administrative orders and compel non-
complying PRPs to respond through judicial
action.
•	Section 107 ~ defines PRPs as past and present
owners and operators of a facility, people who
arranged for disposal or treatment of hazardous
substances, and anyone who accepts or accepted
hazardous substances for transport to disposal or
treatment facilities and selected the site from
which there is an actual or threatened release.
Section 107 imposes strict liability upon PRPs
and has been interpreted by the courts to impose
joint and several liability upon all PRPs
involved at a site where harm is not divisible.
This section also allows EPA to seek
reimbursement from PRPs for all response costs
incurred by EPA not inconsistent with the
National Oil and Hazardous Substances Pollution
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Contingency Plan (NCP), including interest, and
authorizes the Agency to seek treble damages as a
result of PRPs failing without sufficient cause to
comply with a CERCLA section 106 order.
•	Section 122 — authorizes EPA to enter into
agreements with PRPs to perform response
actions. Section 122(e) provides special notice
procedures, including a 60-120 day moratorium
on EPA action to facilitate negotiations, which
can be used to negotiate non-time-critical
removal actions.
The NCP sets out, among other things, a division of
responsibility among the various levels of
government, the appropriate role of private parties,
and procedures for undertaking response actions.
Section 300.160 of the NCP also provides
requirements lor response action documentation to
support enforcement and cost recovery actions. The
NCP applies to all response actions taken pursuant to
the authorities ol' CERCLA or Clean Water Act
section 311, and is applicable to releases or threatened
releases of hazardous substances into the
environment, releases or threatened releases of
pollutants or contaminants that may present an
imminent and substantial danger to public health or
welfare, and releases or threatened releases of oil onto
the navigable waters of the U.S. or its adjoining
shorelines.
ROLES AND RESOURCES
An OSC from the appropriate EPA Regional office
serves as the day-to-day manager of each removal
action. The OSCs role in enforcement activities
includes:
•	Initiating and supporting PRP search,
notification, and negotiation activities
•	Providing a work plan or a scope of work for
administrative orders detailing the proposed
response
•	Documenting or assembling documentation on
all aspects of the removal action, within the time
required by the NCP
•	Approving the i'lease of information regarding
EPA :ind PRP negotiations
•	Overseeing the l'RP response
Assuring PRP compliance with an administrative
order.
The participation of OSCs is vital to all phases of the
enforcement process, although the extent of OSC
involvement may vary. Among the resources
available to assist OSCs are:
•	Regional Technical Enforcement Staff -
personnel with scientific, accounting, document
management, and legal expertise who support a
variety of activities, including PRP searches,
civil investigations, and cost documentation, to
ensure that enforcement issues have been
thoroughly investigated, documented, and
resolved.
•	Office of Regional Counsel (ORC) - attorneys
for each Region who provide counsel and
litigation support, and are involved particularly
in negotiations and settlements, drafting
administrative orders, and reviewing site
documents for sufficiency of enforcement
information.
•	Public Participation Staff - Regional staff who
coordinate community relations efforts and
organize information for the administrative
record, the body of information upon which the
selection of a response action is based.
•	Contractors — specialized support available to
assist in PRP searches and the issuance and
compilation of enforcement documentation.
In addition, the OSC or other enforcement staff must
notify the appropriate Regional Office of Criminal
Investigations or the National Enforcement
Investigations Center immediately when criminal
activity is suspected.
REMOVAL ENFORCEMENT
PROCEDURES
EPA's policy concerning removal enforcement is that
where PRPs are known, an effort shall be made, to
the extent practicable, to determine whether they can
and will perform the necessary removal action
promptly and properly. The urgent nature of certain
removal actions may, however, require response
initiation by the Agency before undertaking extensive
enforcement activities.
PRP Searches
PRP searches vary in size and scope depending upon
the amount of time between discovery and execution
of the Action Memo, the urgency of the situation,
and the amount to be spent for the removal action.
Generally, PRP searches are initiated and completed
prior to conducting on-site removal activities.
During emergency or time-critical situations,
streamlined procedures may be followed, but
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regardless of the urgency of the situation, efforts to
locate PRPs should continue throughout the removal
aclion to support cost recovery and the possibility of
PRP involvement in any continuing or future
response actions.
Generally, in emergency situations, OSCs conduct
oral inquiries, review readily available documentation,
and conduct visual inspections for obvious evidence
to link PRPs to a site. In time-critical situations,
preliminary PRP search activities are expanded by
initiating title searches, conducting off-site
interviews, and sending CERCLA 104(e) information
requests to obtain further information on the site.
During non-time-critical removal actions, the results
of the preliminary PRP search activities should be
summarized in a baseline PRP search report.
Regional enforcement staff should also conduct a
comprehensive PRP search, including the
identification of generators and transporters, to
produce an interim final PRP search report.
PRP Notification
When possible, the Regional program office should
issue notice letters to identified PRPs concerning
their potential liability and inform them of the
intended response action prior to the initiation of a
removal action. During emergency removal actions,
however, OSCs may notify PRPs by telephone or in
person, to be followed by a written notice letter. For
time-critical actions, Regional enforcement personnel
should issue notice letters before the start of the
removal action and review preliminary PRP search
activities to ensure liiat identified PRPs have been
notified. For non-time-critical removal actions,
special notice letters may be issued to invoke formal
negotiations and a 60-120 day moratorium on EPA
response actions.
In addition to PRP notification, States should always
be notified prior to negotiations for, or issuance of,
an administrative order.
Negotiations, Settlement, and Orders
Where viable PRPs have been identified and site
conditions allow, OSCs, in consultation with
Regional enforcement staff and ORC, plan for and
undertake negotiations. While the preferred outcome
of negotiations is an AOC, EPA has the authority to
issue a UAO to compel PRPs or non-PRPs (e.g.,
adjacent landowners) to comply with the removal
action. In some emergency and time-critical removal
actions, OSCs and Regional enforcement staff may
find it necessary to bypass negotiations for an AOC
and immediately issue a UAO due to time constraints.
Oversight of Enforcement-Lead
Removal Actions
OSCs monitor and determine compliance with the
AOC or UAO by contacting on-site personnel daily
or visiting the site periodically. Contractor support
is available to assist with overseeing field activities
and reviewing work plans, data, and reports. If an
enforcement-lead removal action is not conducted in
an appropriate or timely manner, in accordance with
the AOC or UAO, OSCs and Regional enforcement
personnel may initiate a CERCLA section 106
judicial action or perform the removal action.
Documentation
Thorough documentation is required for all removal
actions to support the Agency's response decision and
to support cost recovery efforts. OSCs are
responsible for establishing and maintaining a site
file for each removal action consisting of all
documentation related to a site. The site file contains
several subsets of documentation, described below,
that are important for removal enforcement activities.
The administrative record is the basis for judicial
review of any issues concerning the selection of a
response action and also provides for public
participation when practicable. Enforcement-specific
documents are included in the administrative record if
they contain information relevant to the response
selection or public participation, but do not pertain
exclusively to PRP liability. The administrative
record also may need to include a confidential portion
when privileged information is required to document
decisions, but must be withheld from the public.
Three kinds of removal action decision documents are
important for effective enforcement activities:
• Action Memos, including an enforcement
addendum, to document approval of the selected
removal action
Documentation of decisions not to take complete
enforcement action, such as not issuing an
administrative order to known PRPs
Cost Recovery Close-Out Memos, which are
required when EPA decides not to pursue c6st
recovery action for Fund monies used to finance a
removal action.
Each of these documents includes summaries of
enforcement information and provides justification for
the relevant decision.
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Cost documentation refers to the specific set of
procedures that OSCs use to maintain a record of all
on-site activities and associated costs. The
documentation method an OSC selects must track site
conditions, events, and decisions; movement of
personnel and equipment; contractor costs and
progress; and oversight costs.
Public Participation
CERCLA and the NCP specify two forms of public
participation for all removal actions: community
relations and administrative record activities. These
requirements are site-specific and have been -designed
to ensure an appropriate level of public involvement
without causing unnecessary delay. While the
activities required for an enforcement-lead response do
not differ from those required for a Fund-lead
response, enforcement-lead actions require a more
sensitive approach when relaying information to the
public, especially during negotiations, as well as
documentation that clearly defines the roles of EPA
and PRPs.
Cost Recovery
As response activities are documented by the OSC, a
demand for payment of all past response costs is sent
to the PRPs. ORC then gives the PRPs a period of
time in which to initiate negotiations concerning the
Agency's claim. If the PRPs do not settle,
enforcement program staff and ORC decide whether or
not to pursue cost recovery. The statute of
limitations for cost recovery is three years from the
completion of the removal action, unless a
"consistency" exemption to the statutory limits under
CERCLA section 104(c)(1)(C) has been approved (in
these circumstances, the statute of limitations is six
years from the date of the exemption). All removal
actions involving PRPs and having total response
costs over 5200,000 should be referred lo the
Department of Justice no later than 12 months after
the completion of the removal action.
NOTICE: The policies set out in this fact sheet are not final agency action, tint are intended solely as guidance. They are
not intended, nor can they he relied upon, to cieate any rights enforceable by any party in litigation with the United States.
EPA officials may decide to follow the guidance provided in this fact sheet, or lo act at variance with the guidance, based on
an analysis of site-specific circumstances. The Agency also reserves the right to change tliis guidance at any time without
public notice.
United States
Environmental Protection
Agency (OS-21C)
Washington, DC 20460
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