UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
August 9, 2005
OSWER 9355.2-21
MEMORANDUM
SUBJECT:
FROM:
TO:
Enforcement First at Superfund Sites: Negotiation and Enforcement
Strategies for Remedial Investigation / Feasibility Studies (RI/FS)
Susan E. Bromm, Director /s/
Office of Site Remediation Enforcement (OSRE)
Michael B. Cook, Director /s/
Office of Superfund Remediation and Technology Innovation (OSRTI)
Superfund National Policy Managers, Regions I - X
Office of Regional Counsel Superfund Branch Chiefs, Regions I - X
Superfund Remedial Branch Chiefs, Regions I - X
This memorandum confirms EPA's commitment to have potentially responsible parties
(PRPs) conduct the Remedial Investigation / Feasibility Study (RI/FS) wherever appropriate. To
achieve this goal, EPA encourages Regions to conduct early and thorough PRP searches and to
consider carefully whether it is appropriate for the identified PRPs to conduct the RI/FS. When
the Region decides to pursue a PRP-lead RI/FS, it should conduct settlement negotiations with
PRPs and, if negotiations fail, consider issuing a Unilateral Administrative Order (UAO) to all
appropriate parties.
This memorandum contains guidance for EPA personnel. This memorandum is not a rule
and does not create any legal requirements. EPA personnel should apply it in any situation only
to the extent appropriate to the facts.
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Background
EPA is committed to ensuring that those who are responsible for hazardous waste sites
take the lead in cleanup, when appropriate, throughout the Superfund cleanup process. This
"Enforcement First" approach has proven to be effective at increasing the number of PRP-lead
Remedial Action starts at non-Federal facility sites.1 With this memorandum, Regions are
encouraged to increase the number of PRP-lead RI/FSs. As a general rule, EPA prefers to
achieve Enforcement First through settlement agreements (Administrative Orders on Consent
(AOCs) or Consent Decrees (CDs)) rather than through UAOs. In instances where a settlement
cannot be obtained, the Region should consider issuance of a UAO.2
To date, EPA's experience has shown that, with adequate oversight, PRPs can perform
acceptable RI/FSs.3 A detailed and thorough Statement of Work (SOW) helps ensure an
adequate RI/FS by setting forth work and deliverable requirements, specifying procedures and
relevant guidance documents,4 and establishing oversight expectations. EPA's ability to seek
penalties under a settlement agreement or UAO provides incentives for PRPs to meet the
requirements of the SOW and to submit timely and appropriate deliverables. Moreover, EPA
retains its right to conduct all or a portion of the RI/FS work if the PRPs' work may cause an
endangerment to human health or the environment or does not meet the terms and conditions of
the agreement or UAO.
1 See, e.g., "Superfund: Building on the Past, Looking to the Future" EPA (April 22,
2004) (hereinafter "120 Day Study"). This document is available at http://www.epa.gov/
oerrpage/superfund/action/120day/index.htm.
2 See "Enforcement First for Remedial Action at Superfund Sites," OSWER and OECA
(September 20, 2002). This document, and other Superfund enforcement documents cited in the
footnotes, are available at
http://www.epa.gov/compliance/resources/policies/cleanup/index.html.
3 See generally "Revised Policy on Performance of Risk Assessments During Remedial
Investigation / Feasibility Studies (RI/FS) Conducted by Potentially Responsible Parties,"
OSWER Directive 9340.1-02 (January 26, 1996) (hereinafter "1996 RI/FS Directive").
4 EPA guidance documents that provide standard guidelines for an RI/FS are available at
http://www.epa.gov/superfund/action/guidance/remedy/rifs/overview.htm. See, e.g., "Guidance
for Conducting Remedial Investigations and Feasibility Studies under CERCLA, Interim Final,"
OSWER Directive 9355.3-01 (October 1988).
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General Strategies to Achieve PRP-Lead RI/FS
The discussion below provides a framework to encourage Regions to achieve
Enforcement First at the RI/FS phase. First, the Region should begin a thorough PRP search as
early as possible at sites listed or expected to be listed on the National Priorities List (NPL) or
designated or expected to be designated as Superfund Alternative (SA).5 Second, when PRPs are
identified, the Region should analyze whether a PRP-lead RI/FS is appropriate. Third, if the
Region determines a PRP-lead RI/FS is appropriate, settlement negotiations should begin.
Fourth, if negotiations fail, the Region should consider issuing a UAO.
A. Identify PRPs as Early as Possible
With a PRP search, the Region investigates parties who are potentially liable for the costs
of responding to the release or threat of release of a hazardous substance at a particular
Superfund site. As noted in the recent 120 Day Study, effective PRP searches are critical to the
Agency's goals of having PRPs conduct response activities when appropriate and recovering
EPA's costs.6 Identification of PRPs prior to the RI/FS: (1) enables the Agency to issue prompt
General Notice Letters; (2) provides necessary evidence to support future settlement agreements
and UAOs; and (3) facilitates the formation of PRP steering committees.
Particularly at sites listed or expected to be listed on the NPL or designated or expected
to be designated as SA, the Region should begin a thorough PRP search as early as possible.7
Before or during the site investigation, the Region should develop a PRP search plan that
includes some or all of the anticipated baseline search tasks. Baseline search tasks generally
include: (1) collecting available records pertinent to the site and relevant to the PRP search; (2)
issuing information requests under CERCLA section 104(e) and/or administrative subpoenas
under CERCLA section 122(e)(3) to appropriate parties; (3) performing a land title search; and
(4) collecting other business status and corporate information.
Regions should strive to conduct PRP searches that will establish the identity of PRPs as
5 EPA has issued guidance on criteria for designating a site as SA. See "Revised
Response Selection and Settlement Approach for Superfund Alternative Sites," OSWER 9208.0-
18 (June 18, 2004) (hereinafter "Revised SAS Guidance").
6 See 120 Day Study, at 71.
7 EPA has issued several documents that provide an overview of a productive PRP
search. See, e.g., "PRP Search Manual," OECA / OSRE (September 2003); "Integrated Timeline
for Superfund Site Management," OSWER Directive 9851.3 (June 11, 1990); "PRP Search
Supplemental Guidance for Sites in the Superfund Remedial Program," OSWER Directive
9834.3-2a (June 16, 1989).
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quickly as possible. If appropriate, EPA may involve any PRPs identified early in the process
with the continuing search. A constructive working relationship between EPA and PRPs is
likely to lead to enhanced settlement opportunities and prevent delays during negotiations.
B. Determine Appropriateness of a PRP-Lead RI/FS
After identifying PRPs, but prior to issuing Special Notice Letters, the Region should
determine whether a PRP-lead RI/FS is appropriate at the site. The Region should base its
determination on an assessment of the identified PRPs and the site's characteristics.8 First, to
assess whether the identified PRPs are the appropriate parties to conduct the RI/FS, the Region
should consider the:
1. Adequacy of the documentation of the PRPs' liability;
2. Demonstrated financial viability of the PRPs and/or PRPs' contractor;
3. Demonstrated technical capability of the PRPs and/or PRPs' contractor,
including:
a. Experience in conducting acceptable RI/FS-type investigations and human
health and ecological risk assessments at Superfund sites;
b. Ability to understand and follow current Superfund RI/FS and risk
assessment processes and guidance documents;
c. Demonstrated ability to submit data to EPA in the proper format; and
4. Agency's prior experience with the PRPs and/or PRPs' contractor at this or other
sites.
The Region should pursue a PRP-lead RI/FS when the Region has found it is appropriate under
the criteria listed above.9 If EPA has inadequate documentation of the PRPs' liability, or has
found the PRPs to be uncooperative or unreliable at this or other Superfund sites, a PRP-lead
RI/FS may be inappropriate. Also, in unique circumstances, the Region may decide that a PRP-
lead RI/FS is inappropriate because of other site-specific reasons. For example, a PRP-lead
8 Certain criteria set forth in this guidance have been adopted from previous EPA
directives. See, e.g., 1996 RI/FS Directive; "Evaluation of, and Additional Guidance on,
Issuance of Unilateral Administrative Orders (UAOs) for RD/RA," OSWER Directive No.
9833.2c (June 20, 1991) (hereinafter "1991 UAO Memo"); "Guidance on CERCLA Section
106(a) Unilateral Administrative Orders for Remedial Designs and Remedial Actions," OSWER
Directive No. 9833.0-la (March 7, 1990).
9 If necessary, the Region may choose to carve out the risk assessment or reuse
assessment from an otherwise PRP-lead RI/FS. See 1996 RI/FS Directive; "Reuse Assessments:
A Tool to Implement the Superfund Land Use Directive," OSWER Directive 9355.7-06P (June
4, 2001).
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RI/FS may not be achievable when a large number of PRPs have been identified, but the PRPs
have not yet coalesced into a group to negotiate with EPA.
C. Proceed With the RI/FS
1. Document Decision to Proceed with Fund-Lead RI/FS
If the Region decides to proceed with a Fund-lead RI/FS at a site listed or expected to be
listed on the NPL or designated or expected to be designated as SA, the Region should create a
document record of its decision. Specifically, the Region should create a record with both
general information about the site (e.g., site name, identifier number, location, response activities
to date) and answers to the following questions:
• What PRPs have been identified at this site?
• If no PRPs have been identified, what steps have been taken to identify PRPs at
this site?
• If PRPs have been identified, provide a list of the PRPs and indicate how the
Region has evaluated the PRP using the criteria listed [in this guidance],
including but not limited to:
Documented liability.
• Financial viability.
• Technical capability.
• EPA's prior experience.
• Other site-specific considerations.
Why the Region has decided not to pursue a PRP-lead RI/FS.
OSRE will periodically review the Region's decision documents during regional visits or
meetings (e.g., Office Director visits, regional work planning meetings, or docket reviews) and
share the information with OSRTI. OSRE and OSRTI initially will evaluate this information on
an annual basis to better understand the circumstances that lead to a Fund-lead RI/FS but may
revise this documentation process or issue further guidance as necessary in the future.
2. Alternately, Proceed With Settlement Negotiations
If it has been determined that a PRP-lead RI/FS is appropriate, the Region should prepare
for and proceed with settlement negotiations. Generally, settlements for an RI/FS will be set
forth in an AOC, accompanied by an SOW. To meet the requirements of CERCLA section
104(a)(l), EPA must: (1) determine that the PRPs will "properly and promptly" conduct the
RI/FS; (2) determine that the PRPs are qualified to conduct the RI/FS; (3) contract with or
arrange for someone to oversee the RI/FS; and (4) ensure that the PRPs will agree to pay for
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oversight costs.10 In addition to the evaluation criteria identified above, the AOC negotiation
process may provide useful insight into the PRPs' ability to conduct this phase of the Superfund
process properly and promptly.
EPA generally prefers to achieve Enforcement First through AOCs rather than UAOs
even though negotiations may be resource intensive. AOCs also may offer benefits to PRPs and
EPA that are not available under a UAO. The Region should ensure that PRPs are aware of
these potential benefits, including:
Contribution. It is EPA's view that, pursuant to CERCLA section 113(f)(2), an AOC
provides PRPs with protection from contribution claims made by non-settling PRPs for matters
addressed in the settlement. PRPs that sign an AOC also should have a right to contribution
under CERCLA section 113(f)(3)(B) for the response costs incurred pursuant to the AOC.11
Beneficial Terms. The model AOC for RI/FS12 offers certain provisions that may be
more beneficial to PRPs than the requirements typically included in a UAO for RI/FS. Most
significantly, the model AOC for RI/FS includes a covenant by EPA not to sue and dispute
resolution provisions that establish procedures for narrowing and resolving disputes. Moreover,
once an AOC is entered, the Region should meet with the PRPs to discuss EPA's planned
oversight activities.13
Under consensual agreements, EPA may compensate parties for a limited portion of
known shares of responsibility attributable to insolvent or defunct parties (commonly referred to
as orphan parties). While the orphan share policy generally is intended to encourage PRPs to
perform response cleanup work, the Region may decide, based on site-specific considerations, to
offer orphan share compensation to PRPs willing to perform an RI/FS under an AOC. The offer
10 EPA can negotiate with PRPs to pre-pay oversight costs, placing the payments into a
Special Account. See "Consolidated Guidance on the Establishment, Management and Use of
CERCLA Special Accounts," OSRE / OERR /OCFO (October 4, 2002).
11 The Supreme Court in Cooper Indus.. Inc. v. Aviall Servs.. Inc.. 543 U.S. , 128
S.Ct. 577 (December 13, 2004), expressly declined to decide whether a UAO is a "civil action"
that would confer contribution rights under Section 113(f). Aviall 543 U.S. at , 128 S.Ct. at
584, fn.5.
12 The current model AOC for RI/FS was issued on January 21, 2004 and is available at
http://cfpub.epa.gov/compliance/resources/policies/cleanup/superfund/index.cfm.
13 See "Interim Guidance on Implementing the Superfund Administrative Reform on
PRP Oversight," OSWER Directive 9200.0-32P (May 17, 2000).
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of compensation in these cases would likely take the form of forgiveness of past costs, rather
than a waiver of future oversight costs.14
Participate and Cooperate Orders. In circumstances where some, but not all, identified
PRPs agree to perform the RI/FS under an AOC, the Region may consider issuing a UAO to
non-consenting PRPs to "participate and cooperate" in the performance or funding of the
RI/FS.15
Other Benefits. The Region generally may revisit any preliminary allocation decisions
reached during the RI/FS when negotiating a CD for RD/RA. PRPs also may have more control
over which entities join a PRP group under an AOC, rather than under a UAO. Further, certain
PRPs may find a public relations benefit to agreeing to perform an RI/FS, rather than being
ordered by EPA to perform the work.
3. If Negotiations Fail, Consider Issuing a UAO for RI/FS
In the event settlement negotiations fail, the Region should consider issuing a UAO to the
PRPs before beginning a Fund-lead RI/FS. Depending on the nature of the failed negotiations,
the Region may need to reevaluate the appropriateness of a PRP-lead RI/FS using the criteria in
Section B above. In some circumstances, the PRPs' lack of cooperation during AOC
negotiations may make a Fund-lead RI/FS appropriate. If the Region chooses to issue a UAO for
RI/FS at an SA site, the Region generally should also proceed to list the site on the NPL.16
A UAO for RI/FS must meet all statutory requirements of CERCLA section 106(a) and
other applicable requirements.17 For example, before issuing a UAO, the Region must ensure
that EPA can demonstrate, based on the Administrative Record, that: (1) a release or threat of
release (2) of a hazardous substance (3) from a facility (4) may present an imminent and
substantial endangerment to public health, welfare, or the environment. In addition, in
14 See "Interim Guidance on Orphan Share Compensation for Settlors of Remedial
Design/Remedial Action and Non-Time Critical Removals," OECA (June 3, 1996); "Orphan
Share Superfund Reform Questions and Answers," OSRE (January 2001).
15 See "Documentation of Reason(s) for Not Issuing CERCLA 106 UAOs to All
Identified PRPs," OECA (August 2, 1996) (hereinafter "1996 UAO Memo").
16 See Revised SAS Guidance.
17 See, e.g., 1996 UAO Memo. The Department of Justice must consult and concur on a
UAO to a federal agency PRP. See Executive Order 12580, 52 Fed. Reg. 2923 (January 29,
1987).
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accordance with EPA guidance, the Region should:
1. Ensure that the parties to whom the UAO will be issued are properly named;
2. Identify and carefully evaluate anticipated defenses; and
3. Notify the affected State.
A UAO for RI/FS is not a negotiated document, and the Region generally should
communicate to the PRPs that the UAO will not include any concessions offered to them during
the AOC negotiations. Similarly, the Region should not negotiate the scope and oversight of the
RI/FS and generally should not offer orphan share compensation.
In accordance with EPA policy, the Region should issue UAOs to all appropriate and
identified parties even while gathering evidence about potential additional PRPs. If relevant, the
Region should document its reasons for excluding certain parties from the UAO.18 For example,
if the Region has not compiled sufficient evidence of liability against a certain party, that party
may be excluded from a UAO. In this situation and other appropriate cases, the Region may
decide later in the process to issue Participate and Cooperate orders to additional PRPs.
Conclusion
In support of EPA's Enforcement First efforts, Regions are encouraged to pursue a PRP-
lead RI/FS when appropriate. A thorough and prompt PRP search is essential to increasing the
number of PRP-lead RI/FSs. EPA generally prefers to achieve Enforcement First through
settlement agreements, and the Region should educate PRPs about potential benefits of
settlement agreements over UAOs. If negotiations fail, however, EPA is committed to using all
its enforcement tools, including UAOs for RI/FS.
This document is available on EPA's Web site at http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/enf-first-rifs.pdf. At the time of publication, the OSRE
contact for questions about this document is Anne Berube, who can be reached at 202-564-6065.
cc: Scott A. Sherman, Office of General Counsel
Earl Salo, Office of General Counsel
Alan Carpien, Office of General Counsel
Bruce S. Gelber, U.S. Department of Justice
Debbie Deitrich, Office of Emergency Management
Jim Woolford, Federal Facilities Restoration and Reuse Office
Dave Kling, Federal Facilities Enforcement Office
Eric Steinhaus, Superfund Lead Region Coordinator, US EPA Region 8
18
See 1996 UAO Memo, at 5-6.
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OSRTI Managers
Joanna Gibson, OSRTI Documents Coordinator
NARPM Co-Chairs
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