Uni—d States
Environmental Protection
Ag#ncy
Office of
Solid Waste and
Emergency Response
SEPA
DIRECTIVE NUMBER: 9834.10
TITLE: Interim Guidance on Notice Letters, Negotiations,
and Information Exchange
APPROVAL DATE: /tytf / >-
EFFECTIVE DATE: /V
ORIGINATING OFFICE: OWPE
G3 FINAL
~ DRAFT
LEVEL OF DRAFT
Ha — Signed by AA or DAA
Q B — Signed by Office Director
G C — Review & Comment
REFERENCE (other documents):
S WER OS WER
DIRECTIVE D
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Urntvd States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
v>EPA
DIRECTIVE NUMBER: 9834.10
TITLE: Interim Guidance on Notice Letters, Negotiations,
and Information Exchange
APPROVAL DATE:
EFFECTIVE DATE:
ORIGINATING OFFICE: owpe
S FINAL
~ DRAFT
LEVEL OF DRAFT
IS A — Signed by AA or OAA
OB — Signed by Office Director
DC — Review & Comment
REFERENCE (other documents):
S WER OSWER OSWER
DIRECTIVE DIRECTIVE Dl
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_ United States Environmental Protection Agency
fi'CPA Washington. DC 20460
ocnK OSWER Directive Initiation Request
1 Directive Number
9834.10
2. Orfalnafor Information
Name of Contact Person
Kathv MacKinnon
Mail Code
WH-527
Office
DWPE
Telephone Code
475-6770
3 Title
Interim Guidance on Notice Letters, Negotiaitons, and Information
d Snmman/ of directive (include brief statement of Duroose)
Exchange
* OUrnntaiy ui uncwuvc ;»iwuuc ^loicinciu v« t
The purpose is to provide guidance to the Regions on issuing notice letters, entering
into negotiations, and exchanging information with PRPs. This includes a discussion
on the use of the Section 122(e) special notice procedures and the subsequent
negotiation moratorium. The guidance states that special notices will be used for the
vast majority of remedial response actions and for some longer-term removals.
5 Keywords
Special Notice, Negotiaiton Moratorium
6a Does This Directive Supersede Previous Directive^)"?
1. Procedures for Issuing notice Letters
#9834.1
No
~
2. Timely Initiation of Responsible Eartv Searches. Issua
b Does It Supplement Previous Directwe(s)' Release of .Information ,09834.2
v No [ Ves V
Yes What directive (number, title)
uance of Notice Letters, and
What directive (number, title)
7 Draft Level
| x | A ~ Signed by AA/DAA | [ 8 -
Signed by Office Director
~ =-
For Review & Comment
~
D - In Development
This Request Meets OSWER Olrectlves System Format Standards.
9 Signature yrfl Lead Office Directives Coordinator
Date
/O//?/&?
10 Name and Title of Approving Official
Date
8. Document to be distributed to States by Headquarters?
Qves Qno
EPA Form 1315-17 (Rev. S-87) Previous editions are obsolete
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C 20460
983410
u w I
9 1987
OFFICE OF
SOLID WASTE AND EMBROENCY RESPONSE
MEMORANDUM
SUBJECT: Transmittal of Notice
Latter Guidance
PROM
Gene Lucero, Director
Office of Waste Progr
orceraent
TO
Addressees
Attached is the "Interim Guidance on Notice Letters,
Negotiations, and Information Exchange." Note that Appendix C
containing model notice letters is not included in this package,
but will be distributed under separate cover in the next couple
of weeks.
Attachment
Addressees:
Directors, Waste Management Divisions, Regions I,IV,V,VII,VIII
Director, Emergency and Remedial Response Division, Region II
Director, Hazardous Waste Management Division, Region III
Directors, Air and Waste Management Division, Regions II,VI
Director, Toxics and Waste Management Division, Region IX
Director, Hazardous Waste Division, Region X
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983410
INTERIM GUIDANCE ON NOTICE LETTERS, NEGOTIATIONS,
AND INFORMATION EXCHANGE
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983410
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/FS 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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9834
3. Notifying PRPs When Not Appropriate To Utilize
Special Notice Procedures for Removals
4. DOJ Role in Removal Negotiations
5. Tinting 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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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 98341 0
WASHINGTON, D.C. 20460
OCT I 9 1987
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Interim Guidance on Notice Letters, Negotiations, and
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.
FROM:
Information Exchange
Assistant Administrator
TO:
Regional Administrators
1 CERCLA of 1980 as amended by SARA of 1986 is referred to
in this guidance as CERCLA.
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983410
2
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." a
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 incorporates a
moratorium and "formal" period of negotiation (referred to as a
negotiation moratorium) into the settlement process. BPA'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, and
for the exchange of information between EPA and PRPs.
This guidance addresses the use of both "general" and
"special" notice letters for removal and remedial actions.
Special notice letters differ from general notice letters because
special notices trigger the negotiation moratorium. The
negotiation moratorium is the period of time where a moratorium
is imposed on certain EPA actions and a 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 invoice the 5122(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.
3 These guidances were issued under OSWER Directive Numbers
9834.1 and 9834.2, respectively.
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3
III. STATUTORY AUTHORITY
A. SETTLEMENTS
Sections 104(a), 122(a), and 122(e)(6) authorize settlements
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 5104'a), PRPs cannot conduct the RI/PS unless EPA
determines that the PRP is qualified to perform the RI/PS, BPA
contracts with or arranges for a qualified person other than the
PRP to assist EPA in overseeing and reviewing the RI/FS, 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 to 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.
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 extent 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.3 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
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addition, this section provides for 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 5104 or §106. The
purpose of the moratorium is to provide for a period of
negotiation between EPA and PRPs. The moratorium prohibits EPA
from commencing any response action under 5104(a), and an RI/FS
under 5104(b), or an action under 5106 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 5104(a) or
take any action against any person under 5106 for an additional
60 days or commence an RI/FS under 5104(b) for an additional 30
days.
Under 5122(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 5122(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).
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5
A. INFORMATION REQUESTS
EPA may request information from PRPs about various
activities and conditions under 5104(e) of CERCLA and unde;?
53007(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 9104(e)(5).
Finally, the information request should indicate that it is the
PRPs responsibility to inform EPA whether information they
provide to BPA is confidential and subject to protection under
5104(e) of CERCLA.
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)(1) 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 PRPs,
the volume and nature of substances contributed by each PRP, and
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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 EPA's ability to make
certain information available to PRPs, especially early in the
response process. Therefore, this information can be released
only to the extent such information is available. If the Regions
have information on volume, the Regions should develop volumetric
rankings and should make such information available to PRPs as
soon as practicable. However, due to their preliminary and
oumarary 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 may
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 RZ/FS special notice,
and 3) the RO/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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983410
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 term "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 RD/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 S107 of CERCLA. If 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 is
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), e) 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 8122(e): The latter
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 5122(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 RO/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 CERCLA
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 PRP and a ranJc'ing 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. Tha 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 admin-
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 RI/PS and RD/RA, the Regions
should either issue the special notice to PRPs or provide PRPs
with an explanation why it was not appropriate to use the special
notice procedures. Issuance of the special notice triggers a
moratorium on EPA's conduct of the 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 mail. In instances
where there is more than one PRP and PRPs are likely to receive
the special notice on different days, the date the moratorium
begins should be seven days from the date the letters are mailed
to the PRPs. In either case, the special notice must make clear
when the negotiation moratorium begins and ends.
1. Whether to Issue RI/FS and RD/RA Special Notice
EPA has the discretion to use the special notice procedures
when EPA determines that a period of negotiation would facilitate
an agreement with PRPs and would expedite remedial actions.
The Agency believes entering into such negotiations would
generally facilitate settlements and plans to utilize the RI/PS
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 each 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 EPA 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 Monitoring 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 $500,000, DOJ is to be notified. DOJ's role will be
to review the compromise of the claim pursuant to section
122(h)(1) 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/FS special notice
letter as soon as practicable. Of greater importance, the letter
must be sent sufficiently in advance of obligations for the RI/FS
so that negotiations do not delay the initiation of the RI/FS by
the Fund in the event the negotiations do not result in an
agreement providing for the PRPs to conduct or finance the RI/FS.
Timely receipt of the special notice will have a significant
effect 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 must 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 FS and proposed plan for public comment. The Regions
generally must issue the RO/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 negotiation moratorium, is concurrent with
the Record of Decision (ROD) review and approval process. The
remaining 30 days of the extended negotiation moratorium is
concurrent with the initial phases of the remedial design. 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 RI/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.
T The proposed plan refers to the public participation
document developed pursuant to 5117(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 RO/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 RD/RA special notice may 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 to be
controversial.
Where circumstances permit issuance of the special notice at
this early stage, an advantage to this approach is that the ROD
review and approval process and the negotiation moratorium could
be concluded at about the same time. This 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 may 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 may
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 the 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 wbere
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. If 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 RO/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 same time notices are sent to PRPs. The copies of notices to
headquarters should be sent to the Information Management Section
within the Program Management and Support Office of the Office of
Waste Programs Enforcement (OWPE).
Providing copies to the administrative record coordinator is
important for 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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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.
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
developing their "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 "godd 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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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;
o 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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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 S107ta).
The letter should identify the action EPA undertook and the cost
of conducting the action., The letter should also indicate that
the Agency anticipates expending additional funds on activities
covered by this notice and other specified future activities.
Finally, the letter should demand payment of interest for past
and future response costs incurred by EPA pursuant to 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 RI/FS 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. 9
• 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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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,
continuation of settlement activities may include seeking an
extension to the 120 day negotiation moratorium as discussed
below, or sending a consent decree to the Department of 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 may 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 #9832.9.
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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 RO/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.
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 S106 litigation referral has been prepared and
referred to the Department or Justice (DOJ) for action. In fact,
the preparation and referral of a case to DOJ may be an important
mechanism for providing the necessary impetus for reaching a
voluntary settlement. In many cases it 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 may or may not
invoke the 8122(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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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 a private
party response through "informal" negotiations (i.e. negotiations
not triggered by the 5122(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 5122(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 5122(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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9834.1 0
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, §122(a) requires the Agency to notify PRPs in writing
when the Agency decides not to utilize such procedures. The
removal notice provides a convenient vehicle for informing PRPs
of EPA'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 EPA
will begin the removal ensures that the subsequent 120 day
moratorium does not affect EPA's ability to implement the removal
action in the event negotiations do not result in an agreement
for PRP conduct of the removal action.
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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 §107 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 RD/RA general and special notices, except where
otherwise specified.
a. Notice of potential liability: If the purpose of the
removal notice is simply to inform PRPs of their potential
liability and to provide notice that the Agency has or is 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 §122(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 a six month planning
lead time but the Agency made a case-specific determination not
to use the special notice procedures, the letter should provide
an explanation why the use of such procedures was determined to
be inappropriate for that particular response action.
b. Notice of potential liability and opportunity to enter
into "informal1* 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 8122(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 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 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 S122(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 AND 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 Haste
Programs Enforcement at FTS-475-6770.
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9834.1 0
Appendix A
Timing of RD/RA Special Notice Letter
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A. General Approach: Issue RD / RA Special Notice When Release
Draft FS and Proposed Plan
Selection of Remedy Process
Review/
Public
Review
I
Conduct
Release
Com-
Conduct /
RI/FS
FS/Proposed
ment
ROD
RD \
Plan
(
Notice and
Extended
Negotiation
Negotiation
Moratorium
Moratorium
Special Notice / Negotiation Moratorium
I ¦ ¦ 1 l ¦ ¦ ¦ 1 ¦ 1 l l -
0 18 19 20 21 22 23 24 25 26 27 28 29
Timeline (Months)
-------
B. Alternative Approach: Issue RD / RA Special Notice Prior to
Release of Draft FS and Proposed Plan
Selection of Remedy Process
Review/
Review/
Public
Review
1
Conduct
Release
Release
Com-
Conduct /
RI/FS
Screening
FS/Proposed
ment
ROD
RO \
of Alternatives
Plan
(
Notice and
Extended
Negotiation
Negotiation
Moratorium
Moratorium
Special Notice I Negotiation Moratorium
l ¦ ' ¦ ¦ 11111 I I I
0 18 19 20 21 22 23 24 25 26 27 28 29
Timeline (Months)
-------
C. Alternative Approach: Issue RD / RA Special Notice Once ROD
Signed
Selection of Remedy Process
Conduct
Review/Release
Public
Com-
ment
Review
Conduct /
RI/FS
FS/Proposed
Plan
ROD
RD \
Notice and
Extended
Negotiation
Negotiation
Moratorium
Moratorium
Special Notice I Negotiation Moratorium
18 19 20 21 22 23 24 25 26 27 28 29
Timeline (Months)
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9834,10
Appendix B
PRP Settlement Process for RI/FS and
RD/RA
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PRP Settlement Process for Rl / FS
60 Day
[ConduaW
| Conduct F8 in
Community RiMoni
vO
00
Ovl
o
-------
PRP Settlement Process for RD / RA
60 Day
no
30 Day
PuMo
Sign (tod
Period
PuMo PartMpaion and Communis IWrtkini
vO
00
L/-J
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