OSVJER * 9635. la
Appendix A
INTERIM GUIDANCE ON PRP PARTICIPATION
IN THE RI/FS PROCESS*
I. INTRODUCTION
This memorandum sets forth the policy and procedures governing the
participation of potentially responsible parties (PRPs) in the develop-
ment of remedial investigations (RI) and feasibility studies (FS) under
the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) , as amended by the Superfund Amendments and Reauthorization
Act (SARA) of 1986. This memorandum discusses:
o The intiatior of enforcement activities including PRP search-
es and ??.? notification;
o Tr.e circurstances in which PRPs may conduct the RI/FE;
c The developr--t of enforceable agreements governing PR? RI/FS
' f activities;
o Initiation of PRF RI/FS activities and oversight of the RI/FS
by EPA?
o EPA control over PRP RI/FS activities; and
o PR? participation in Agency-financed RI/FS activities.
wore detailed information regarding each of the above topics is
included ir. Attacrrxer.ts 1-d of this appendix.
This document is consistent with GERCLA and EPA guidance in effect
as of October 1968, ar.d is intended to supersede ths ''.arch 10, 19E4 mem-
orandum fron Assistant Administrators Lee M. Thomas and Courtney M. Price
entitled "Participation of Potentially Responsible Parties in Develop-
ment of Remedial Investigations and Feasibility Studies Under CI'CL?"
(OSWER Pirective No. 9835.1). Users of this guidance should consult the
RI/FS Guidance or any relevant guidance or policies issued after dis-
tribution of this document before establishing EPA/PRP responsibilities
for conducting RI/FS activities. Additional guidance regarding proce-
dures for EPA oversight activities will be available in the Office of
Waste Program Enforcement's (OWPE) forthcoming "Guidance Manual on
•This memorandum was signed by the AA OSWER and released for distribution
on May 16, 1988. Technical clarifications/updates have been made to
this cuicarce fcr insertion intc Appendix A of the "Interim Final
Guidance for Conducting Remedial Investigations and Feasibility Studies"
(October 19SS-CSWEF Directive Nc. 9355.3-01) (Referred to herein as the
?~/FS Guicarre} .
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Oversight of Potentially Responsible Party Remedial Investigation and
Feasibility Studies". ;)"."• - - ,,-
•• '
II. BACKGROUND
' -J~*-
Sections 104/122 of CERCLA provide PRPs with "the opportunity to
conduct the RI/FS when EPA determines (11 that the PRPs are qualified tt
conduct such activities and (2) they will carry, ;o'ut the activities in
accordance with CERCLA requirements and EPA procedures.1 The Agency
, continue its policy of early and timely PRP searches, as well as early
PRP/ notification and negotiation for RI/FS activities. - . " *
It is also the policy of EPA to encourage the early and active par-
ticipation of PRPs in conducting BI/FS activities. EPA believes that
early participation of PRPs in the remedial p'rbcess. will encourage PPP
implementation of the selected remedy. PRP participation in RI/FS act;%
ities will ensure that they have a better and more complete understand-
ing of the se lected" remedy , ' and thus will be" more likely to agree on
imp 1 erne r. tat ion of the remedy. Remedial activities performed by PRPs
will also conserve Fund, monies', thus making additional, resources avail-
able to address other sites.
-*•• . As part of the "Agency's effort to encourage PRP participation in
remedial activities, EPA will consider the PRPs' role in conducting RI/1
activities when assessing an overall settlement proposal for the remedi.
design and remedial 'action. For example, when the Agency performs a
non-binding allocation of responsibility (NEAP) , the Agency may conside:
previous PR? "efforts ""and cooperation. This will* "provide an additional
incentive for PRPs tc be cooperative in conducting RI/FS activities.
Although E?A encourages PKP "participation in conducting the RI/FS,
the Agerrs and CERCLA inpose certain conditions governing their partici-
pation. These conditions are intended/ to assure 'that the RI/FS per-
formed- by the PRPs is consistent with Federal requirements and that
there is adequate oversight of those activities. These conditions are
discussed both in' Section III and" Attachment I .of. this memorandum.
At the "discretion of EPA*, a PRP (or group b'f PRPs) may assume
full responsibility for undertaking RI/FS activities pursuant to
Sections 104/122 of CERCLA. The terms and conditions governing the
"RI/FS activities should be specified in an Administrative Order. The
use of Administrative Orders is authorized in CERCLA Section 122(d)!3);
they are the preferred type 'of agreement for RI/FS activities since the'
are authorized internally and therefore, may be negotiated more quickly
The legal authority to enter intc agreements with PRPs is found in CE?-
Section 122(a). This section then refers to response actions conducts*
.pursuant to Section 104(bl. For.the purposes of this guidance, Sec-
tions 104/122 will be cited when referring to such authority.
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than Consent Decrees. Before SARA, Administrative Orders were signed
using the authorities of Section 106 of CERCLA. New provisions in SARA
allow for Orders to be signed using the authorities of Sections 104/122;
Section 104/122 Orders do not require EPA to make a finding of unninent
and substantial endangennent.
RI/FS activities developed subsequent to the Administrative Order
are set forth in a Statement of Work, which is then embodied or
incorporated by reference into the Order. A Work Plan describing
detailed procedures and criteria by which the RI/FS will be performed is
developed by the PRPs and, after approval by EPA, should also be
incorporated by reference into the Administrative Order.
It is the responsibility of the lead agency to ensure the quality
of the effort if the PRPs assume responsibility for conducting the RI/FS.
Therefore, EPA will establish oversight procedures and project controls
to ensure that the response actions are consistent with CERCLA and the
National Contingency Plan (NCP). Section 104(a)(1) of CEPCLA mandates
that no PRP b* allowed to undertake an RI/FS unless EPA determines that
the partydes) conducting the RI/FS is qualified to do so. In addition,
Section 104 (a) (1) requires that a qualified party be contracted with or
arranged for to assist in overseeing and reviewing the conduct of the
RI/FS and, that the PRPs agree to reimburse EPA for the costs associated
with the oversight contract or arrangement.
:::. INITIATION OF ENFORCEMENT ACTIVITIES
As part of effective management of enforcement activities, timely
settlements for RI/FS activities are to be pursued. This includes conduc-
ting PRP searches early ir. the site discovery process and subsequent
notification to all PRPs of their potential liability and of their oppor-
tunity to perform response activities. Guidance on conducting timely
and effective PRP searches is contained in the guidance manual, "Poten-
tially Responsible Party Search Manual" (August 17, 1987 - OSWER Direc-
tive No. 9834.6).
EPA policy has been to notify FRPs of their potential liability for
the planned response activities, to exchange information about the site,
and to provide PRPs with an opportunity to undertake or finance the
response activities themselves. In the past this has been accomplished
by issuing a "general notice" letter to the PRPs. In addition to the
use of the general notice letter, Section 122 (e) of CERCLA now authorizes
EPA to use "special notice" procedures, which for an RI/FS, establish a
60 to 90 day moratorium and formal negotiation period. The purpose of
the moratorium is to provide time for formal negotiation between EPA and
the PRPs for conduct of RI/FS activities. In particular, use of the
special notice procedures triggers a 60 day moratorium on EPA conduct of
the RI/FS. During the 60 day moratorium, if the PRPs provide EPA with a
"good faith offer" to conduct or finance the RI/FS, the negotiation period
can be extended to a total of 90 days. EPA considers a good faith offer
to be a written proposal where the PRPs make a showing of their qualifi-
cations and willingness to conduct or finance the RI/FS. Minor deficien-
cies in the PRPs' initial submittals should not be grounds for a
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determination that the offer is not a good faith offer or that the PRj>s
are unable .to perform the RI/FS. ~ ">
. . ~ * '- i "• i 3 - - •
To facilitate »i-asiong other things, PRP participation in the RI/FS
process, Section 122(e) (1) requires the special notice letter to provide
the names and addresses of other PRPs, the'volume and nature of sub-
stances contributed by each PRP, andt§ ranking by volume of substances
at the site,"to'the-extent this information] is available at the tune of
special notice. Regions'are'encouraged*to release'this_information to
PRPs-when the notice letters are 'issued.' 'To expedite settlements,
Regions ".are also'encouraged to give"-PRPs as much guidance as possible
concerning.the,RI/FS process.-' It is appropriate to transmit to PRPs
copies of important guidance documents-such as'the RI/FS Guidance, as
well as model Administrative Orders and Statements of Work. A model
Administrative Order can be found in-the memorandum"from Gene Lucero
entitled', '"Model CERCLA-'Siction-106'Consent Order for 4an_RI/FS"
(January 3!, 1985"- OSWER'Directive-No". 9835.5); This model order is
currently being revised to reflect'SARA requirements and will'be fcrth-
coroirc. -"• ^ model Statement of «ork has been' ir,cluded_"as Appendix C to
the RI/FS Guidance, while a model Statement of Work for^PRP-lead RI/FSs
MS currently'being developed-by OWPE* Other Regional'and Headquarters
guidance' relating to'-techfuc'ai -issues may'be given to', PRPs, as well as
examples of pro}ect plans (plans that must be developed"prior to the
'conduct of -the Ri/FS)-th'at are of high quality. A"description of the
required project plans*is included in Attachment IZ. "
Although use of the special notice procedures is discretionary,
Regions are encouraged "to use these procedures in the majority "of cases.
If EF> derides not tc employ the special notice procedures described in
- Secticr'-r22 (&Y, the Agency will notify the PRPs in' writing of such A
decisicr ,''-including an explanation~as to why EPA believes the" use of the
spsciai'-rfctice procedures is inappropriate. Additional information on
"the content-of special notice letters', including the use of these notice
provisions', car. b*e found in the" memorandum entitled "Interun Guidance on
Kctice Letters,- Negotiations, and Ir'formatior. Exchange" {October 12,
1*987--•OSWER Directive No'. 9834.10). ' r
Section 111(f)(l\ requites that the State be notified of PRP nego-
tiations and that an opportunity for State participation^ in such negotia-
tions be provided'. In' addition, Section 122(j)(l) requires that if a
release o"r threat of release at the site in cruestian may have resulted
in damages to" natural resources, EPA' must notify the appropriate Federal
or* State Trustee and provide an opportunity for the Trustee to partici-
pate- in the negotiations.1'rTo simplify "^the notification ^of Federal
•TrusteeiV'the Agency-intends to provide a'list of projects^iri .the Super-
fund Comprehensive'Accomplishments "Plan (SCAP) to the Trustees'as notice
to participate* in the negotiations. 'In those cases where there is reasc
tc believe that a significant natural resource will be affected^, direct:
cocrdirat.or. with the' Federal and/or State Tr-s'.ee will be required.
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.. , . , ,
IV. CONDITIONS FOR EPA INVOLVEMENT IN, AND PRF INITIATION OF, RI/FS
ACTIVITIES
Under Section 104(a)(1) EPA may authorize PRPs to conduct RI/FS
activities at any site, provided the PRPs can do so promptly and
properly and can meet the conditions specified by EPA for conducting the
RI/FS. These conditions are discussed in Attachment I of this appendix
and involve the scope of activities, the organization of the PRPs, and
the PRPs' (and their contractors') demonstrated expertise. EPA encour-
ages PRPs to conduct the RI/FS provided that the PRPS commit in an Order
(or Consent Decree) under CERCLA Sections 104/122 (or Sections 106/122
for a Decree) to conduct a complete RI/FS to the satisfaction of EPA,
under EPA oversight. Oversight of RI/FS activities by the lead agency
is required by Section 104(a)(1) and is intended to assure that the
RI/FS is adequate for lead agency identification of an appropriate
remedy, and that it will otherwise meet the Agency requirements of
CEFCLA, the NCP, and relevant Agency guidance. EPA will allow FRPS to
conduct RI/FS activities and will provide review and oversight under the
following gereral circumstances.
EFA's priority is to address those NFL sites that have been identi-
fied en the SCAP. The ECAF is an EPA management plan which identifies
site- and activity-specific Superfund financial allocations for each
quarter of the current fiscal year. When employing Section 122 (e) notice
procedures, EFA will notify FRPs of its intention to conduct RI/FS activ-
ities at NFL sites in a manner that allows at least 90 days notice before
obligating the funds necessary to complete the RI/FS (see Section III cf
this guidance). During this time frame PRPs may elect to conduct the
RI/TS, under the review and oversight of EPA. If the PRPs agree to con-
duct the RI/FS they must meet tne conditions discussed in Attachment 1.
The sccpe and terns for conducting the studies are embodies in an Agree-
ment; as mentioned in Section II, Administrative Orders are the preferred
type c-f Agreement fcr F.I/FS activities;
£?7. will not engage in lengthy discussions with PRPs over whether
the ?RFs will conduct the RI/FS; rather, EPA will adhere to the time
fraires established by the Section 122 special notice provisions. Zr.
most instances, once Fund resources have been obligated to conduct the
RI/FS,"the PRPs will no longer be eligible to conduct the RI/FS activi-
ties at the site.
The actions described below are typically taken to initiate KI/FS
activities:
o EPA develops a site-specific Statement of Work (SOW) in advance
of the scheduled RI/FE start. This SOW is then provided tc
the PRPs along with a draft of the Administrative Order (or
"For a State-lead enforcement site the State is responsible for over-
sigf't unless otrerwise specified in the agreener.t betweer. the State arc
EPA. EPA should maintain cor?jr.jricatior. with tne State tc ensure that
the State is cro\'icirc oversicht of the remedial activities.
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Consent Decree) at the initiation of negotiations. (PRPs may,
with EPA approval, submit a single site plan that incorporates
the elements of an SOW and a detailed Work Plan as a first
deliverable once the Agreement has been signed. This combined
site plan must clearly set forth the scope.of the proposed
RI/FS and would be incorporated into the Agreement-in place of
the SOW.), '.„•;>,•-.- ,•?'/..
' • o Final provisions of the SOW are negotiated with"the Order.
o EPA determines whether the PRPs-possess the necessary 'capabili-
ties to .conduct an RI/FS in a timely and effective manner (con-
. ducted simultaneously with other negotiations) .-
t • '{...'- .".';. •
o . EPA develops a Community-Relations Plan specifying any activi-
. , . ties that may be required "of the PRPs. .'(Community relations
. " activities are discussed in Attachment II.)
o EPA determines contractor and staff resources required fcr
oversight and initiates planning the necessary oversight
. t .requirements. This process may include preparing'a Statement
of Work, if a contractor is to" develop an "oversight plan."
o EPA and PRPs identify and procure'any necessary assistance.
- " . - . :,'>•"-?
„-_ to" FRPS submit a Work Plan to EPA for Agency review'and approval.'
The Work Plan must present the methodology and rationale for
~~, conducting the Rl/FS as well as detailed-procedures and require-
men£s,-if such procedures have not been set forth-ih the Agree-
ment. -This Wcrk Flan, which in most instances is one of the
first deliyerables under the Order, is commonly incqrporax.ee
into the Agreement .'following EPA;approval. -
o PKfs are responsible for obtaining access to the site; however,
'. , .,„ if access cannot be obtained, EPA, with the-assistance of DCJ,
will secure-access subject to PRP reimbursement for the costs
incurred in securing such-access;
... These standardized actions ensure that the "scope of the RI/FS activ-
ities to be conducted by the PRPs, and the procedures by which the RI/F5
is performed, are consistent with EPA policy and guidance. Additional
actions bay be required either- for a technically complex site or for a
site wbere a nusber of PRPs are involved. Regardless of the circum-
stance*, the actions listed in this section should be negotiated as
expeditiously as possible. Specific elements of these actions .are dis-
cussed^ in Attachment II. . • " 'i - ..
- _'; , -_S j.
*
V. DEVELOPMENT OF THE RI/FS ADMINISTRATIVE ORDER OR CONSENT DECREE
The PRPs must respond to EFA's notice letter by either declining,
within the time specified, to participate in the RI/FS, or by offering a
good faith proposal "to EPA for performing the Ri/FS. Declining to par-
t.i.cipate in the RI/FS may be implied if the PRPs do not negotiate during
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• , ' 0 :r^ ' • < '
the moratorium established by the' notice letter. If the PRPs have
declined to participate, or the time specified has lapsed, EPA will
obligate funds for performing the RI/FS. If a good faith proposal is
submitted, EPA will negotiate with the PRPs on the scope and terms for
conducting the RI/FS.
The results of successful negotiations will, in most cases, be ccr,-
tained in an Adirj.nistrative Order, or where the site is in litigation,
in a Judicial Consent Decree entered into pursuant to Section 122(d) c£
CERCLA. Guidance for the development of an Administrative Order is pro-
vided in OWPE's document "Administrative Order: Workshop and Guidance
Materials" (September 1984), and in the memorandum from Gene Lucero
entitled "Model CERCLA Section 106 Consent Order for an RI/FS" (Janu-
ary 31, 19BS). IThe latter guidance is currently being revised since
the provisions in SARA allow for Orders to be signed using the authori-
ties of Sections 104/122.)
An Administrative Order (or Consent Decree) will generally contain
the scope of activities to be performed (either as a Statement of Work
or work Plan), the oversight roles and responsibilities, and enforcement
options that may be exercised in the event of noncotnpliance (such as
stipulated penalties). In addition to the above, the Agreement will
typically include the following elements, as agreed upon by EPA, the
FEPs, ar.d other signatories to the Agreement.
° Jurisdiction - Describes EPA's authority to enter into Admin-
istrative Orders or Consent Decrees.
o Parties bound - Describes to whom the Agreement applies and is
binding upon.
o Purpose - Describes the purpose of the Agreement in terms of
ctutual objectives and public benefit.
o Findings of_fact, jetermination, and conclusions o_f law - Pro-
vides an outline of facts upon which the Agreement is based,
including the fact that PRPs are not subject to a lesser stan-
dard of liability and will not receive preferential treatment
from the Agency in conducting the RI/FS,
o tiotiee to the State - Verifies that the State has been notified
of pending site activities.
o ttork to be performed - Provides that PRPs submit project plans
to the lead-agency for review and approval before commencing
RI/FS activities. Project plans are those plans developed in
order to effectively conduct the RI/FS project and include: a
Work Plan, describing the methodology, rationale, and schedule
of all tasks to be performed during the RI/FSj A Sainpling and
Analysis Plan, describing the field sampling procedures to be
performed as well as the quality assurance procedures which'
will be followed for sampling and analysis (including a
description of how the data gathered during the RI/-F5 will be
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managed) and the analytical procedures,to be employed: and a
.Health and'Safety Plan'describing-health"and safety precautions
to be exercised while onsite. (More information on the
-contents of these" project plans can be found in Attachment II
of this appendix.)
, , - . t • • »rt * • >• "
Compliance with CERCLA, the NCP, and Relevant-Agency Guidance -
Specifies that the actions at a site-will comply, with the
requirements"of CERCLA,"the"NCP, ,and .relevant Agency "guidance
determined^to'be appropriate for site remediation. •/
Reimbu'rseinent'of costs - Specifies that PRPs will assume all
costs of performing the'work required by the Agreement. In
additionj'*thijs section commits PRPs to reimbursement of costs
'associated with oversight activities. -, This includes reimburse-
ment for qualified party assistance in oversight, as required
by Section 104 (a) (1)., This section should also specify the
nature _ar.d kind of cost documentation to be provided and the
process' for billing" and receiving payment. , .-
tr. ' .'. I' - . .' '• L > ' • ~ " • "•
Reporting - Specif ies _the^ftype and, frequency of-reporting that
PRPs must provide to" EPA. . Normally-the ^reporting requirenents
will, at a minimum, include the required project plans as well
as those deliverabiles' required by the RI/FS Guidance.
Additional reporting requirements.,are^ left to the discretion
of the"Regions. That,is. Regions may~require additional
deliverasles~such "as interim reports on particular Ri cr FS
activities. .,.«,- _ <• _ •
Designated EPA, State, and PRP project coordinators - Specifies
that EPA, the State, and PRPs shall eacr. designate a project
coordinator I '"',,. __ .-;"".. ~- .
Siteaccess anc data availability - Stipulates that PRPs shall
'allow access-to the site by EPA,"'the State, and oversight per-
sonnel. 'Access-will be .provided for inspection and monitoring
purposes th'at in "any way pertain to the work undertaken
pursuant to the Order. .In addition, .^access viii be provided
in the event of project takeover. This section "also stipu-
lates that EPA.will be provided with all currently available
data. f """ ,,'._,." 'J~ '.'.-".'
Re cord; prase rvatj.gr. - Specifies that all records must be mair-
"tained by both parties for a minimum of "6 "years after termina-
tion "of the Agreement,.followed by a provision requiring PFPs
to offer the site.records to EPA before destruction.
Administrative record requirements - Provides that all infor-
' mation upon whicn the .selection_of remedy is based must be
"submitted to EPA in fulfillment'of the administrative record
_requirements pursuant to Section .113 of CERCLA. (Additional
'information or administrativej record" requirements is cortained
in Attachment III.)
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Dispute resolution - Specifies steps to be taken if a dispute
occurs. The Administrative Order states that with respect to
all submittals and work performed, EPA will be the final arbi-
ter, while the court is the final arbiter for a Consent Decree.
(More information on dispute resolution can be found in Attach-
ment IV of this appendix.)
Delay in performance/stipulated penalties - Specifies EPA's
authority to invoke stipulated penalties for noncompliance
with Order or Decree provisions. Section 121 of CERCLA
requires that Consent Decrees contain provisions for penalties
in an amount not to exceed 525,000 per day. In addition to
stipulated penalties, Section 122(1) provides that Section 109
civil penalties apply for violations of Administrative Orders
and Consent Decrees. Delays that endanger public health and/or
the environment stay result in termination of the Agreement, and
EPA takeover of the RI/FS. (More information on stipulatec
per.alties> can be found in the Office of Enforcement and Com-
pliance Ho filtering' s (OECM) "Guidance on the Use of Stipulated
Penalties in Hazardous Waste Consent Decrees" (September 21,
1967) arid in Attachment IV of this appendix.)
Finaj.cia 1 assuranee - Specifies that PRFs should have adequate
financial resources or insurance coverage to address liabili-
ties resulting from their RI/FS activities. When using con-
tractors, PRPs should certify that the contractors have
adequate insurar.ee coverage or that .contractor liabilities are
indemnified.
Reservation of rights - States that PRPs are not released fror
all CERCLA liability through compliance with the Agreement, or
completion of the RI/FS. PRPs may be released frotr, liability
relating directly to RI/FS-requirements, if PRPs complete the
RI/FS activities to the satisfaction cf ErA.
Other claims - Provides that nothing in the Agreement shall
constitute a release from ar.y claim or liability other thar.,
perhaps, for the cost of the RI/.F5, if completed to EPA satis-
faction. .Also provides that nothing in the Agreement shall
constitute preauthonzation of a claun against the Fund under
CERCLA. This section should also specify the conditions fcr
indemnification of the U.S. Government.
Subsequent modifications/additional work - Specifies that the
PRPs are committed to perfora any additional work or subse-
quent modifications which are not explicitly stated in the
work Plan, if EPA determines that such work is needed to
enable the selection of an appropriate response action.
(Attachment IV contains additional information on this
clause.)
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VI. STATEMENT OF WORK AND WORK PLAN
, lased upon available models and guidance, the Region should present
to the PRps at the initiation of ^negotiations -a Statement of Work (Sow)
and draft-.Adxriinistrative Order. The SOW describes the broad objectives
and general activities to be undertaken in the RI/FS. (The PRPS may
develop the SOW if it is determined to be appropriate for a "particular
case.) Once the PRPs receive the SOW they develop a mere detailed Work
:Planr, which -should be -incorporated^ by reference into the Order following
EPA approval. The Work Plan expands the "tasks described in the SOW and
presents the rational and methodology (including detailed procedures and
schedules) for conducting the RI/FS. l£ should be noted that EPA, rather
than the PRP.s, may -develop the work plan in the* event of unusual circum-
stances ..,.(:
VII. REVIEW AND OVERSIGHT- OF THE 'RI/FS - ' '
i J
To er.sure that the RI/FE conforms to the SCP arc, the requirements
of CEPCLA', including sections 104 (a) (1) and 121, EPA w«.ll review and
_ oversee ?RF activities. Oversight is also required cc ensure that the
RI/FS will; result in sufficient information "to allow for remedy selec-
tion by the lead agency.
• A • The- oversight activities that EPA, the State, and other oversight
persornei will be performing should be determined prior to the initia-
tion of the RI/FS, i , Different mechanisms will be used for the review and
oversight of different PRP products and activities". These mechanisms,
and corresponding PRF activities, should be determined and if possible
incorporated in the Order, Generally, the following oversight "activi-
ties should be specified*. '• - _ '._. 1
" o.- .Review of plans, reports,' "and records';
o oversight of- 'field' activities (ihcludir.r "riiintenaRce 'of records
* and documentation) \
."'.*-'«" ? " '
c ,; Meetings? and-" • - "* '• J''~
o "Special studies. ' ~ _ "_
• * Section 104 (a) (1) requires that the President contract with or
arrange for a "qu&lif ied person" to assist in the oversight and review _
of the conduct of the RI/FS. EPA believes that qualified persons, for
the purposes of 'overseeing RI/FS activities, are those firms or individ-
uals with the professional qualifications, expertise, and experience
necessary to 'provide assurance that the Agency is conducting meaningful
and effective -oversight "of PRP activities. In this context, the quali-
fied p«rsc-r generally" will' be either an ARCs, TES , or- REM contractor.
EPA employees, employees of other Federal agencies, State employees, or
any other qualified person EFA determines to be appropriate however, may
he asked tc perform the necessary oversight functions,
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'1 '
As part of the Section 104 requirements, PRPs are required to reim-
burse EPA for qualified party oversight costs. It is Agency policy
to recover all response costs at a site including all costs associated
with oversight. Additional guidance on oversight and project control
activities is presented in Attachments III and IV, respectively.
VIII. CONTROL OF ACTIVITIES
EPA will usually not intervene in a PRP RI/FS if activities are
ccr.ducted in conformance with the conditions and terms specified by the
Order. When deficiencies are detected, EPA will take immediate steps to
correct, the PRP activities. Deficiencies will be corrected through the
use of the following activities: (1) identification of the deficiency;
(2) demand for corrective measures; (3) use of dispute resolution mecha-
nisms, where appropriate; (4) imposition of penalties; and if necessary,
(5) FRF RI/FS termination and project takeover or judicial enforcement.
These activities are described in detail in Attachment IV of this appen-
dix.
IX. PRP PARTICIPATION IN AGENCY-FINANCED RI/FS ACTIVITIES
PRPs that elect not to perform the RI/FS should be allowed an oppor-
tunity for involvement in a Fund-financed RI/FS, Private parties may
possess techrical expertise or knowledge about a site which would be
useful in developing a sound RI/FS. Involvement by PRPs in the develop-
ment cf a Fund-financed RI/FS may also expedite remediation by identify-
ing ar.~ satisfactorily resolving differences between the Agency and
private parties.
Secticr. 112 T<) (2) (B) requires that interested persons, including
FR?s, be provided an opportunity for participation in the development of
the administrative record. PRP participation may include the submittal
of in format ioni relevant to the selection cf remedy, for inclusion ir
the record and/or the review of record contents and submittal of com-
ments or.-such contents.
The extent of additional PRP involvement will be left to the discre-
tion of the Region and may include activities such as:
o Access to the site to observe sampling and analysis activities;
o Access to validated data and draft reports.
With respect to PRP access to a site, it is within the Regions'
discretion to impose conditions based on safety and other relevant
considerations. To the extent that the Region determines that access is
appropriate under the circumstances, PRPs must reimburse EPA for all
identifiable costs incurred with the connection of the accesses afforded
the ?RPs, and trust execute appropriate releases ir. favor of the EPA ar.d
its contractors. With respect tc providing data, it should bej noted
tr.at the Fegion is recuired to allow private citizens access to the
A-11
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information, that is provided to the PRPs. The Regions must' therefore
take tthis .into consideration when determining the extent of the PRp's
involvement in a Fund-financed RI/FS.-
Aside from participation in the administrative record, which is a
statutory requirement, the final decision whether to permit PRPs to par-
ticipate in other aspects of the Fund-financed RI/FS (as well as the
scope of any participation) rests with the Regions.' This" decision should
be based on the ability of PRPs to organize themselves so that they can
participate as a^single entity, and the ability of PRPs to participate
without undue interference with or delay in completion of the RI/FS, and
other factors that the Regions determine are relevant. The'Region may
terminate PRP participation-in RI/FS development if unnecessary expenses
or delays occur. -''-•• '
X. CONTACT . .. '
For further information on the subject matter discussed in this
interim guidance, please ccrtact Susan Cange (FTE 4"E-9805) of the
Guidance and Oversight Branch, Office of Waste ?rocram Enforcemert.
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ATTACHMENT I
CONDITIONS FOR PRP CONDUCT OF THE RI/FS
Organization and Management
When several potentially responsible parties are involved at a site
they must be able to organize themselves quickly into a single represen-
tative body to negotiate with EPA. To facilitate this negotiation pro-
cess, EPA will make available the names and addresses of other PRPs, in
accordance with the settlement provisions of CERCLA Section 122(e).
Either a single PRP or an organized group of PRPs may assume responsi-
bility for development of the RI/FS.
Scope of Activities
As part cf the negotiation process PRPs must agree to follow the
site-specific Stetenent of Work (SOW) as the basis for conducting an
RI,FS. ?P?s are required to submit an RI/FS Work Plan setting fcrth
detailed procedures and tasks necessary to accomplish the RI/FS activ-
ities described in the SOW. EPA may approve reasonable modificatiors to
the SOW and will reject any requests for modifications that are not
consistent with CERCLA (as amended by SARA), the NCP, the requirements
set forth in this abidance document, the RI/FS Guidance, or other
relevant CERCLA guidance documents.
Demonstrated Capabilities
PRPs must demonstrate to EPA that they possess, or are able to
obtain, the technical expertise necessary to perform all relevant activi-
ties identified in the SOW, and any amendments that nay be reasor.azl\
articipatec tc tr.at document. Ir addition, PRPs must demonstrate that
they possess the managerial expertise and have developed a management
piar. sufficient tc ensure that the proposed activities will be properly
controlled and efficiently implemented. PRPs must also demonstrate that
they possess the financial capability to conduct and complete the FI/FS
in a timely and effective manner. These capabilities are discussed
briefly below.
o Demonstrated Technical Capability
PRPs should be required to demonstrate the technical capabilities
of key personnel involved in executing the project. Personnel qualifi-
cations may be demonstrated by submitting resumes and references. PRPs
may demonstrate the capabilities of the firm that will perform the work
by outlining their past areas cf business, relevant projects and experi-
ence, and overall familiarity with the types of activities to be per-
fcjmed a= part of the remedial investigation and feasibility study.
It is irpcrtart that qualified firns be retained for performing
RI/FS activities. Firrs that do net have the necessary expertise for
performing RI,'F5 studies nay create unnecessary delays in the prefect
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and may create situations which further endanger public health or the
environment. These situations may b* created when PRP contractors sub-
mit insufficient project'plans'^suBmit deficient reports, or perform
inadequate' field work. Furthermore, excessive Agency oversight may be
required in the event that an unqualified contractor performs the RI/FS;
the Agency may have to significantly increase' its workload by providing
repeated reviews of pro]ect plans, reports, and oversight of field
activities., . - - '- ' - ' V " '
* * f -»j '''
_, The PRPs must also demonstrate the technical 'capabilities of the
laboratory chosen to do 'the analysis of samples collected during the
RI/FS. if a non-CLP laboratory is selected, EPA may require a submission
from the laboratory which provides >a comprehensive statement of the labo-
ratories* personnel qualifications, equipment specifications, "security
measures, and any other material necessary to prove the laboratory is
qualified to conduct the work. - „ . " .
o Demonstrated Management Capability
,. . ~ •- * *• * ^
?F?s must demonstrate that they have the administrative capabili-
ties necessary for conducting the RI/FS in-a "responsible and timely
manner. A management'plan should be submitted to EPA either during nego-
tiations or as a part of the Work Plan which includes a discussion of
roles and responsibilities of key personnel,-' This management"plan
should include_an RI/FS team organization chart* describing responsibil-
ities and lines of authority. Positions and-responsibilities should be
clearly related to technical and managerial qualifications. The PRPs
should also demonstrate an understanding of effective-communications,
ir.formatior, management, quality assurance, and quality control systems.
PRPs usually procure the services of'consultants to-conduct the required
RI/FS activities. The consultants must demonstrate, in addition "to
those requirements stated above, effective contract management
capabilities.
"* *-
- . c ' " Demonstrated Financial Capability
ft •
i
" " .The. PRPs should develop-a* comprehensive ant! reasonable estimate of
the total* cost of anticipated-RI/FS activities. : EFA'-will decide on a
case-by-case basis if the PRPs will be required to demonstrate that they
have the necessary financial resources available and committed to con-
duct the RI/FS activities. ' The resources estimated" should be adequate
to cover the anticipated costs for the RI/FS as well as the _costs for
oversight,, plus a margin for unexpected expenses. If, during the con-
duct of th* RI/FS the-~net -worth of-the financial mechanism providing
funding for- the RI/FS is reduced-to less than that required to complete
-the remaining activities, the PRPs should immediately notify EPA. Under
conditions specified in the'Order, PRPs are required to complete the
PI/FS regardless of initial cost estimates or financial mechanisms.
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o Assistance for PRP Activities
If PRPs propose to use consultants for conducting or assisting in
the RJ/FS, the PRPs should specify the tasks to be conducted by the con-
sultants and submit personnel and corporate qualifications of the pro-
posed firms to the EPA for review. Verification should be made tha-t the
PRPs' consultants have no conflict of interest with respect to the pro]-
ect. Any consultants having current EPA assignments as prime contrac-
tors or as subcontractors must obtain approval from their EPA Contract
Officers before performing work for PRPs. Lack of clarification on pos-
sible conflicts cf interest may delay the PRP RI/FS. EPA will reserve
the right to review the PRPs' proposed selection of consultants and will
disapprove their selection if, in EPA's opinion, they either do not pos-
sess adequate technical capabilities or there exists a conflict of
interest. It should be noted that the responsibility for selection cf
consultants rests with the PRPs.
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ATTACHMENT II
. INITIATION OF PEP RI/FS ACTIVITIES
Sevelopmerit of the Statement of
After the PRFs have been identified in the-PRP Search Report they
are sent either a general notice letter followed by a special notice
letter or a general notice letter followed by an explanation pursuant to
section 122 (a) why special notice procedures are not being used.., EPA
will engage in negotiations with--those PRPs who have submitted a, good
faith offer in'response to the notice lett'er and therefore have volun-
teered to" perform the RI/FS. While .the PRPs are demonstrating their
capabilities for conducting the RI/FS, EPA will negotiate the terras of
the Administrative Order. Either an acceptable Statement of Work or
Work Plan must be incorporated by reference into the Agreement.
The Statement of WorX (SOW) is typically developed by EPA and
describes, in a conprehensive manner, all RI/TS activities to be per-
formed, as reasonably anticipated, prior to the onset of the project.
The SOW focuses on broad objectives and describes general activities
that will be undertaken to achieve these objectives. Detailed proce-
dures by which the work will be accomplished are not presented in the
SOW, but are described in the subsequent Work Plan that is developed by
the ?F.?s. In certain instances, with the approval of EPA, PRPs may pre-
pare a single site plan incorporating the elements of an SOW and a Work
Plar.. Ir. such instances, the site plan will be incorporated into the
Order in place of the broader SOW.
o Use of the EPA Model SOV:
.- E?& has developed a model SOW defining a comprehensive RI/FS effort
which is contained in the RI/FS Guidance. Additionally, a model SDK for
a =FF-leai RI/FS is being developed by OWPE and will be forthcoming.
The Regions should develop a site-specific SOW based upon the model(s^ .
FI/FS projects managed by PRPs will involve, at a minimum, all relevant
activities set forth in the EPA model SOW. Furtner, all plans and
reports identified as deliverables in the EPA model SOW must be iden-
tified as deliverables in the site-specific SOW and/or the Work Plan
developed by the PRPs. Additional deliverables may be required by the
Regions and should be added to the Administrative Order.
o Modification of the EPA Draft SOW Requirements
The activities set forth in the model SOW are considered by EPA to
be the critical RI/FS activities that are required by the NCP. PRPs
should present detailed justifications for any proposed modifications
and amendments to the activities set forth in the 50V*. EPA will review
all proposed modifications and approve or disapprove their inclusion in
the SOW based on available information, E?A policy ar.d guidance, overall
program objectives, anc the requirements of t-e NC~ and CERCLA. EPA
A-Ic
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will not allow notifications that, in the judgment of the Agency, will
lead to as unsatisfactory RI/FS or inconsistencies with the NCP.
f the Rl/FS Project Plans
RI/FS project plans include those plans developed for the RI/FS.
At a minimum the project plans shoula include a Work Plan, a Sampling
and Analysis Plan, a Health and Safety Plan, and a Community Relations
Plan. The Community Relations Plan is developed by EPA and should
include & description of the PRPs' role in community relations activi-
ties, if any, SPA review and approval of the work plan and sampling and
analysis plan will usually be required before PRPs can begin site activi-
ties. An ex-aapl* when limited project activities may be initiated prior
to approval of the project plans would be if additional intonation is
required tc coufilete the Sampling and Analysis Plan. Additionally, con-
ditional approvals to the work Plan and Saayling and Analysis Plan may
be provided in order to initiate field activities in a more timely
manner. It should be. noted that EPA does not "approve* the PRPs' Health
and Safety Plan but rather, it is reviewed to ensure the protection of
public health ar.d the environment. The PRPs may be required to amend
the plan if EFA Determines that it does not adequately provide for such
protection.
o Contents of the Work Plan
The work Fi&i* expands the tasks of the SOW, ar.d the responsibili-
ties specified in the Agreement, by presenting the rationale and method-
ology (including detailed procedures) for conducting the tRI/FS.
Typically the Work Plan is developed aftei the draft Order and then
incorporated into the Agreement. In some cases however, it nay be appro-
priate for EFA to develop the work Plan prior to actual negotiation with
the EKPs and attach the plan to the draft Agreement. The PRP Rl/FS Work
Plan must be consistent with current, EPA guidance. Guidance on develop-
ing acceptable Work Plans is available in the RI/FS Guidance, Addi-
tional guiaance will be forthcoming in the proposed NCP, Once the Work
Plan IE approved by EPA, it becomes a public document and by the terms
of the Agreement, should be incorporated by reference into that document,
The Work Plan should, at a minimum, contain the following elements.
Introduction/Background Statement - PRPs should provide an intro-
ductory or background statement describing their understanding c£
the work to be performed at the site. This should include histor-
ical site information and should highlight present site conditions.
Objectives - A statement of what is to be accon5>lished and how the
information will be utilized,
Scope - A detailed description of the work to be performed
including a definition of work limits.
Plan. - A description of the project management showing
personnel with authority and responsibility for the appropriate
aspects of the project and specific tasks to be performed, A
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single .person should -be identified as having overall responsibility
.for the project and,, specific, tasks to be ^performed.
work Schedule - A statement outlining the schedule for each of the
required activities. This co-uld be presented in the fora of a
Gantt or milestone chare. ,The schedule in the work" plan must natch
"that ir. th* _dra ft order. , •. _*
De live rabies - A description of the work' products that will be
submitted and their schedule for delivery; ~ Th"e 'schedule should
^include. specific dates, if possible. Overvise'," the schedule
should be in terms of the number of days/week after approval
of the worX, plan., . r- ,
o 'Contents o^f. the. Sampling and Analysis Plan.
A Sampling and Analysis Plan (SAP) must-be subcutted by the FRFs
before initiation^ of relevant field activities. This plan contains two
separate 'elementsj.. & Field Sampling Plan and a Quality Assurance Project
^Flan. These -dpcuments were previously i submitted as separate deliveratles,
but are now combined .into one document-. Though the SAP is typically
implemented by PRP contractors, it is the responsibility of the PRPs to
ensure that the goals and standards of the plan are net. (Verification
that the goal and standards of the SAP are met" will also be part of EPA's
oversight responsibilities.) The SAP should contain the following ele-
ments: . , .'-:-'.• ' - ' " •
„ •* •"..---
Fielo Sacglinc Flan - The Field Sailing Plan- includes a detailed
description, of all RI/FS sampling ar.d analytical .activities that
will be, per formed.. .These activities .should^be consistent with the
NCF and relevant -CERCLA guidance. Further g^idajice on developing
Field Sampling Plans is presented in the jp.I/FS Guidance.
.
Quality Assurajtce Project Plan - -The SAP oust include a detailed
description of quality assurance/quality control (QA/QC) procedures
.to be employed during the RI/FS. This section is intended to ensure
that the .RI/FS is based on the correct 'level or extent of- sampling
and. analysis required to produce sufficient data for evaluating
remedial alternatives for a specific site. A second objective is
to ensure the quality of. the data collected during, the RI/FS.
Guidance on appropriate QA/QC procedures Day be found in the RI/F5
Guidance as well as "Data .Quality Objectives for the RI/FS Process"
(March 1987 - OSWER Directive No. 9355. 0-7B)'.
., If the SAP modifies any procedures established 'in relevant guidance,
it eust provide an explanation and justification* for the change.
o Other Project' Plans -, ,. '•_
-' ;
Other project plans that are likely to be required in the RI/FS
(process include the Health and Safety Plan and the. Community Relations
Plan. ', _. • - .
A-18
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Health andSafety Plan - PRPs should include a Health and Safety
Plan either as part of the Work Plan er as a separate document,
The Health and Safety Plan should address the measures taken by the
PRPs to ensure that all activities will be conducted in an environ-
mentally safe manner for the workers and the surrounding community,
EPA reviews the Health and Safety Plan to ensure protection of
public health and the environment. EPA does not, however, "approve"
this plan. Guidance on the appropriate contents of a Health and
Safety Plan may be found in the RI/FS Guidance, in addition,
Health and Safety requirements are found in "OSHA Safety and Health
Standards; Hazardous Waste Operations and Emergency Response"
140 CFR Part 1910.120) .
Community deletions Plan - EPA must prepare a Community Relations
Plan for each NFL site. The extent of PRJ? involvement in community
relations activities should be detailed in this plan. Additional
information on Community Relations activities is contained below,
o Review and Approval
PR? s must submit all cf the required RI/FS project plans (with the
exception of the Community Relations Plan which is developed by EPA) to
EPA for review, and in the case of the Work Plan and SAP, approval. EFA
will review the plans for their technical validity and consistency with
the KC? and relevant EPA guidance. Typically, the Agency oust review .
and approve tnese plans before ?RPs can begin any site activities. Any
disagreements that arise between EPA and PRPs over the contents of the
plans should be resolved according to the procedures set forth in the
dispute resolution section of the relevant EPA/PRP Agreement.
Community Relaticn_s
EPA is responsible for developing and implementing an effective
community relations program, regardless of whether RI/FS activities are
Fund-financed or conducted by PHPs, At State-lead enforcement sites,
funded by EPA under Superfund Memoranda of Agreement (see the "Draft
Guidance on Preparation of a Superf^nfi Memorandum of Agreement (Octo-
ber 5, 195' - CSKER Directive No. 9375.0-01)), the State has the respcr-
sibility for development and implementation of a community relations
program. PRPs may, under certain circumstances, assist EPA cr the State
in implementing the community relations activities. For example, PRFs
may wish to participate in community meetings and in preparing fact
sheets. PRP participation in community relations activities would, how-
ever, be at the discretion of the Regional Office, or the State, and
would require oversight by the lead-agency. EPA will not under any cir-
cumstances negotiate press releases with PRPs.
EPA designs and implements community relations activities according
"to CEFCLA and the NCP. A Community Relations Plan must be developed zy
EPA for all NFL sites as described by the EPA guidance, "Community Rela-
tions in Superfund: A Handbook" (U.S. EPA, 1988 - OSWER Directive
No. 9230.C-G3). The Community Relations Plan must be independent cf
negotiations wit!" PPPs. Guidance for conducting community relaticrs
activities at Sucerfunc enforcement sites is
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specifically addressed by Chapter VI of the Handbook and the EPA memo
entitled 'Connnunity Relations Activities at Superfund Enforcement
Sites—Interim Guidance" (November 1988 - OSWER Directive
No. 9230.0-3B) ., In some instances the decision regarding PRP participa-
tion in community relations activities will be made 'after the Community
Relations Plan has been developed. As a result, the plan will need to
be modified by EPA to reflect Agency and PRP roles and responsibilities.
, . . 1- - •• - -
. , EPA, ,or the Stater will,provide the Community -Relations Plan to all
interested parties at the same time. In general; if the case has not
been referred to the Department ot Justice (DOJ) for litigation, com-
munity relations activities curing the RI/FS should be the same for
F\md- and PRP-itad sites. If the case has been 'tor may" potentially be)
-referred to DOJ for 1-itigation, constraints will probably be placed on
the scope of- activities. The EPA"-Community Relation's Plan nay be modi-
fied after consultation with the technical enforcement staff, the
Regional Counsel and other negotiation team members, including, if the
case is referred, tht lead DOJ or Assistant United States Attorneys
(i.e., the litigation team). This technical and legal staff must be
.consulted prior tc any public-meetings or dissemination of fact sheets
t or other information; approval must be obtained prior" to releases of
4_ information and discussions'of technical information- in advance: PRP
.participation in .implementing .community relations activities will be
_, subject to EPA (or State)4 approval in aoitinistrative settlements and
EPA/DCJ-^in civil actions. Key activities specific to ccmour.ity relations
• programs-for, enforcement bites include the following: -' - -
o_ . Public Review of Wcrfc Plans for Administrative Orders
The PRP Work Plan, as approved by EPA, is'incorporated into the
Administrative Order (or Consent Decree). Once the Agreement is signea,
-.-. it becomes a public document. Although there is no requirement for
.public ccinrent on an 'ActJ.nistrative Order, Regional staff' are'encouraged
to announce; after the-Order is final, that the PRP"is conducting the
-RI/FS. Publication of notice and a'corresponding 30-day" comment perioa
,is.required however, for Consent Decrees. ' .'",",
•o - ., Availability :of RI/FS''Lnformation from'the PRPs
PRP6,-in agreeing to conduct the Rl/FS, must also agree to provide
.. all information necessary for EPA to implement a Community Relations
Plan. . The Agreement should identify the types'of information that PRPs
,- will provide; and contain conditions concerning the provision of this
. information.' EPA should'provide the-PRPs with the content of the plan
so that the PRPs can fully anticipate the type of information that will
be made public. All information submitted by PRPs will be subject to
—public inspection (i.e., available through Freedom'of Information Act
requests, public dockets,'or the"administrative record) unless the
information meets an exemption. An example would be if the information
is deemed either as enforcement sensitive by EPA, or business confi-
dential by EPA (based on the'PRPs' representations), in conformance with
• 40 CFR Part 2. '- -
f-.-lQ
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Development of the ATSDP Health Assessment
Section 104(j) (*>) of CERCLA requires the Agency for Toxic Substances
and Disease Registry (ATSDR) to perform health assessments at all NPL
facilities according to a specified schedule. The purpose of the health
assessment is to assist in determining whether any current or potential
threat to human health exists and to determine whether additional infor-
mation on human exposure and associated health risks is needed.
The EPA remedial project manager (RPM) should coordinate with the
appropriate ATSDP Regional representative for initiation of the health
assessment. In general, the health assessment should be initiated at
the start of the RI/FS. The ATSDR Regional representative will provide
information on data needs specific to performing a health assessment to
ensure that all necessary data will be collected during the RI.
The RPM and the ATSDR Regional representative should also coordinate
the transmission and review of pertinent documents dealing with the extert
and nature cf site contamination (i.e., applicable technical memoranda
and the draft Rl), As ATSDR has no provisions for withholding documents,
if requested ty the public, the PPM must discuss enforcement sensitive
documents ar.d drafts with the ATSDP Regional representative rather than
providing copies to them. This will ensure EPA's enforcement confiden-
tiality. Further guidance on coordination of RI/FS activities with ATSDR
can be found in the document entitled "Guidance for Coordinating ATSDR
Health Assessment Activities with the Superfund Remedial Process"
(March 1957 - CSWER Directive No. 9285.4-02).
Xdentifir at is-, of Oversight Activities
EPA will review RI/FS plans and reports as well as provide field
oversight ot PR? activities during the RI/FS. To er.sure that adequate
resources are committed and that appropriate activities are performed,
EPA should develop ar. oversight plan that defines the oversight activi-
ties that, must be performed including EPA responsibilities, RI/FS prod-
ucts to be reviewed, and site activities that EPA will oversee. In
planning for oversight, EPA should consider such factors as who will be
performing oversight and the schedule cf activities that will oe moni-
tored. , A tracking system for recording PRP milestones should be devel-
oped. This system should also tracK activities performed by oversight
personnel and other appropriate cost items such as travel expenses.
Identification and Procurement of EPA Assistance
In accordance with Section 104(a)(1) EPA must arrange for a quali-
fied party to assist in oversight of the RI/FS. The following section
provides g-Jidar.ce for identifying and procuring such assistance for EPA
activities.
A-21
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o Assistance for EPA Activities
As specified in Section 104 (a) (1), EPA is required* to contract with
or arrange for a qualified person to assist in oversight of the RI/FS.
Qualified individuals are those groups with the professional qualifica-
tions, expertise, and experience necessary to provide assurance that the
Agency is conducting appropriate oversight of PR? RI/FS activities.
Normally, EPA will obtain oversight assistance either through the
.technical Enforcement Support (TES) contract, the Alternative Remedial
Contracts Strategy,Contract (ARCS),'or occasionally through the Remedial
Action (R£M). contracts. In'some cases oversight assistance may be
'provided by States through the use of Cooperative Agreements. Oversight
assistance may also be obtained through the U.S. Army Corps of Engineers
or other governmental agenciesi interagency Agreements should be utilized
to obtain such assistance.
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ATTACHMENT III
REVIEW AKDOVERSIGHT OF THE RI/FS
Review ofPlans, Reports, and Records
EPA will review all RI/FS products which are submitted to the Agency
as specified in the Work Plan or Administrative Order. PRPs should
ensure that all plans, reports, and records are comprehensive, accurate,
and consistent in content and format with the NCP and relevant EPA guid-
ance. After this review process, EPA will either approve or disapprove
the product. If the product is found to be unsatisfactory, EPA will
notify the PR?s of the discrepancies or deficiencies and will require
corrections within a specified time period.
o Project Plans
E?A will review all prefect plans that are submitted as deliver-
ables ir. fulfillment of the Agreement. These plans include the Work
Plan, the Sampling and Analysis Flan (including both the Field Sampling
Plan and the Quality Assurance Project Plan), and the Health and Safety
Plan. If the initial submittals are not sufficient in content or scope,
the RPM will request that the PRPs submit revised document(s) for review.
EPA does not "approve" the FFF's Health and Safety Plan but rather, at
is reviewed to ensure the protection of public health and the environment,
The PRP's Work Plan and Sampling and Analysis Plar, on the other hand,"
must be reviewed and approved prior to the initiation of field activities,
Conditional approval to these plans may be provided in order to initiate
field activities in a more timely manner.
The P~?s may be required to develop additional Work Plans or modify
the initial Work Plan contained in or created pursuant to the Agreement.
These changes may result from the .need'to: (1) re-evaluate the RI/FS
activities due either to changes in or unexpected site conditions;
(2) expand the initial Work Plan when additional detail is necessary; or
(3) modify or add products to the Work Plan based on new information
(e.g., a new population at risk). EPA will review and approve all Work
Plans and/or modifications to Work plans once they are submitted for
review.
o Reports
PRPs will, at a minimum, submit monthly progress reports, technical
memorandums or reports, and the draft and final RI/FS reports as
required in the Agreement. To assist in the development of the RI/FS
and review of documents, additional deliverables may be specified by the
Region and included in the Agreement. These reports and deliverables
will be reviewed by EPA to ensure that the activities specified in the
Order and approved work Plan are being properly implemented. These
reports will generally be submitted according to the conditions and
schedule set forth in the Agreement. Elements of the ?R? reports are
discussed below.
A-23
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Monthly progress Reports - The-review of monthly progress reports
is an important activity performed during oversight. These reports
should provide suf ficient-'detail to allow E?A to evaluate the past
and projected progress of the RI/FS. FPPs should submit these writ-
ten progress reports to the RPM.. The report should describe the
actions and decisions taken during'the previous month and activities
scheduled during the upcoming reporting period. f;in addition, tech-
nical data generated during the.month ^i-.e.«, analytical results)
should ibe appended.to the "report.-(Progress, reports should also
include _a<" detailed statement .of the manner and extent to which the
procedures' and dates set forth in the Agreener.t/Work Plan are being
met. "Generally, "EPA will determine the. adequacy .of .the performance
of-"the RI/FS by reviewing, the following subjects discussed in pro-
gress-reports:' ^ '._ , ,_j " A= - ._./
o Technical Summary of Work . -^ - ,- j-
The monthly report will describe the .activities and accomplisV-
: ' 'mer.ts performed,to" date.v .This wilj generally, include a descrip-
'* ' "-tion of all field work, completed, such as sampling events and
installation of wells;,, a, discussion of analytical iresults
•"'-- "received^ a discussion' of. data, review activities; ar.d'a'dis-
"--" cussion of the development, screening, and»detailed ."analysis
-"-of-"alternatives .''The report-Jwill also-describe the activities
-"to be performed during the upcoming month
o ' Schedule . -- •', • j " - -
"*•' ' E?A"will "oversee PR? compliance with respect_to those sched-
ules specified in the Order. Delays, with the exception cf
those specified under the Force Marjeure -clause of the Agree-
ment', ir.ay result in penalties, if warranted.. The RPM should
"be "immedia'tely 'notified, if PRPs cannot perform required
activities or.cannot provide"the required deliverables 'in
* " "acccrcance with the schedule specified ir. the work^Flan.1 In
addition,",PRPs "should notify .the RPM when circumstances may
' I delay the completion of any phase-of the-work -or when cir-
"'""'*"• cunstances mayrdelay. access to the site. PRPs should also
'""'provide to the'~RPM,-\n writing, the reasons for, and..the
anticipated duration of, such delays. Any measures taken or
to be taken by the PRPs to prevent or minimize the delay
should be described including the timetables for implementing
such measures... , „_ ", '
i-, „ •>•> ' j '•— -
o" Budget, ,, ., ',*...;:-,,.-
' :The relationship ,of budgets to expenditures, should be tracked
where the RI/FS is funded with a financial mechanism estab-
lished,by the PKFfs.. If site "activities re_quire ff,ore;- funds
than "originally, estimated,. EPA must be assured that.-the PRPs
'" are financially"able to undertake additional expenditures.
"'" Z is'hile EPA does not have the authority TO review or_approve s
FRF budget, evaluating costs during the course of the RI/FS
allows EPA to effectively monitor activity to er-SMre -iraely
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completion of FI/FS activities. If the PRPs run over budget,
. EPA must be assured that they can continue the Ri/FS activi-'
ties as scheduled. Therefore, if specified in the Agreement,
PRPs should submit budget expenditures and cost overrun infor-
mation to EPA. Budget reports need not present dollar amounts,
but should indicate the relationship between remaining avail-
able funds and the estimate of the costs of remaining activities.
o Problems
Any problems that the PRPs encounter which could affect the
satisfactory performance of the RI/FS should be brought to the
immediate attention of EPA. Such problems may or may not be a
force maueure event, or caused by a force ma^eure event. EPA
will review problems and advise the PRPs accordingly, problems
which may arise include, but are not limited to:
Delays ir. mobilization or access to necessary equipment;
"Jr.arvticipated laboratory/analytical time requirements;
Unsatisfactory QA/QC performance;
Requirements for additional or more complex sampling;
Prolonged unsatisfactory weather conditions;
Unanticipated site conditions; and
Unexpected, complex commur.ity relations, activities.
Other Reports - All other reports, such as techrical reports and
draft ar.c final RI/FS reports, should be submitted to EPA according
to the schedule contained in the Order or the approved Work Plan.
E?A vill review and approve these reports as they are submitted.
Suggested formats for the RI/FS reports are presented in the RI/FS
Guidance.
o " Records
PRPs should preserve all records, documents, and information of any
kind relating to the performance of work at the site for a minimum of
6 years after completion of the work and termination of the Administra-
tive Order. After the 6-year period, the PRPs should offer the records
to EPA before their destruction.
Document control should be a key element of all recordkeeping. The
following activities require careful recordkeeping and will be subject
tc ErA oversight:
Admir.is_tratipn - PRP administrative activities should be accurately
documented and recorded. Necessary precautions to prevent errors
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or the loss or misinterpretation of data should be taken. At a
.p _ nanunuB, the following administrative _actions should be documented
',., , •, ., ;-_ Contractor work plrans, contracts, and change orders;
'*t , . - it~ t . Personnel" changes; -* f '" " *r,
Consunications between and among PKf-s, the-State, and EFA
officials regarding technical aspects "of the Rl/FS;
„,-:> • ;. T •- -fermit-application and'_ award (if applicable)! and
,,,,.,.. - -» • Cost overruns. '-»'"-•
, j-r ' " *
. >„ . ,„ - -
• Te e hn i eal Ana 1 y_s i s -' Sauries and data should be handled according
" to procedures &et forth'- in 'the Saaplinf ar.c 'Analysis Plan, 0ocufi»r-
tation 6stat>lishing adherence to_ these, procedures ahoule include:
Sample labels;
Shipping forms\
*,.*v * 'i
Field log books,
T ^."
Chain-of-custody formsj^anq
Field log books,
All analytical data in the Rl/FS process..should b« managed ds set
forth in the .Sampling and Analysis Plan." Such analytical data ffi>
b€ the product of; .._,-•
Contractor laboratories; .., ,.,,-..--
•^n -J i". , .Environmental and public health, studies;, andj
•V' P«rfcncanc6, and, acpleoej5tkbility studies of
,V>"+, ' >•- ---"3 - remedial alternatives.
.1 Pe c i s i on MaX ing - Actions or eonnrrani cat ions amcsng^FlPs that involve
decisions affecting technical aspects of the Rl/fs should be docu-
oented. Such actions and communications include those of the pro^-
^ ol ect manager (or other PHP •ajanagemftnt 'entity) ,, ^steering committees i
« j:« or contractors.•- -1* -*^-' - ^ -^ ", •'" "*
; % o :-. AdninistratiVe'Record*
Section 113SK) of CERCLA requires that the Agency establish an admin-
istrative-record upon which the selection of, »„ response action.is based.
A»suggested list of- documents which are eost likely to be included in
any adequate administrative record is provided in the memorandum entitled
"Draft Interim Guidance on Administrative Records,for Selection of CERCU-
.-.Response Actions"- {June 23", 19BS -' OSWIH Directive-No;: 9833.3A) . Mere
.-detailed guidance-will be forthcoming, includir.c guidance provided in
\
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the revisions to the NCP. There are, however, certain details associ-
ated with compiling and maintaining an administrative record that are
unique to PRP RI/FS activities.
EPA is responsible for compiling and maintaining the administrative
record, and generating and updating an index. If EPA and the PRPs
mutually agree, the PRPs may be allowed to house and maintain the admin-
istrative record file at or near the site,' they may not, however, be
responsible for the actual compilation of the record. Housing and main-
taining the administrative record would include setting up a publicly
accessible area at or near the site and ensuring that documents remain
and are updated as necessary. EPA must always be responsible for decid-
ing whether documents are included in the administrative record; trans-
mitting records to the PRPsj and maintaining the index to the repository.
The information which may comprise the administrative record must
be available to the public from the time an RI/FS Work Plan is approved
by EPA. Once the Work Plan has been approved the PRPs must transmit tc
EPA, at reasonable, regular intervals, all of the information that is
generated during the RI/FS that is related to selection of the remedy. '
The required documentation should be specified in the Administrative
Crder. The Agreement should also specify those documents generated prior
to the PI/FS that must be obtained from the PRPs for inclusion in the
record file. This may include any previous studies conducted under State
or local authorities, management documents held by the PRPs such as haz-
ardcus waste shipping manifests, and other information about site charac-
teristics or conditions not contained in "any of the above documents.
Field Activities
c Field Inspections
Field inspections are an important oversight mechanism for determin-
ing the adequacy of the work performed; EPA will therefore conduct field
inspections as part of its oversight responsibilities. The oversight
inspections should be performed in a 'way that minimizes interference
with PRP site activities or undue complication of field activities. EPA
will taxe corrective steps, as described in Section v;i and Attachment IV
of this appendix, if unsatisfactory performance or other deficiencies
are identified.
Several field-related tasks may be performed during oversight inspec-
tions. These tasks include;
On-site presence/inspection - As specified in Section 104(6*) (3) ,
EPA reserves the right to conduct on-site inspections at any reascr-
able time. EPA will therefore establish an on-site presence to
assure itself of the quality of work being conducted by PRPs. At a
mr.imu.Ti, field oversight will be conducted during critical times,
such as the installation of monitoring wells and during sampling
events. EPA will focus en wnether the PRPs adhere to procedures
specif led in the SOW and Work Plants'! , especially those concerning
QA/QC procedures. Further guidance regarding site charactenzaticr.
A-""
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_., activities is ^presented in the RI/FS 'Guidance , thV "Compendium of
,/fSuperfund "Field., Operations -Methods"' (August '1987 - OSWER Directive
the "RCRA Ground-Water Technical Enforcement
Guidance Document" (September 1986 j- OSWER Directive No. 9950.1),
, -the HEIC, Manual for^Groundvster/Subsurf acerl'nve5€igations at
».- ' gasardous Waste ;SiteV;(U.S. EPAV I9BleT7- and" OWPE's .forthcoming
,'„'- "Guidance^on Oversight of" Potentially- Responsible Party Remedial
" ' Investigations ,and Feasibility "Studies." ' f" *'°'1 , ..... ',
'*' * ' , " t * .,'",• r " ;• -V- L<" ' •> r»- 7-34 -*" ""-:1"*
, , -r ',-»:, .rr . ^ j- • '•* - v »- • - ..-.•--.
"- " ^^^-£5--°" ' aff^ analysis of 'saBiples-'- EPA- may collect _ a 'nuiuber of
QA/QC^samples^. includingiblank, . dupLicate> and split ' samples t The
'"' ^ .results'.of theseu sample -analyses1'' will be1 compared'' to the results of
" PRP[ analyses ;„{ this, comparison, will enable EPA^to'' identify Jpoten-
.tial quality cpntrol/.problems-and-th'eref6refhelp";to evaluate"4 the
i:""'" quality of "the PRP investigation.
. « v ,,- . i ' <-a ,T , '"T3 % '" - .•*?•£'" O- J*< '-"-"!-
~ ™,» • %-»f -^tf /„' j^s^+*V*--'~w^'* -»* ^ ^ ^ ^'.t *,-(
'l ' Environmental-' Monitoring -,1£PA may -supplement "any -p?,P envi/onmentai
*' „ '•" ,,' SPA" ffiay* either conduct,, or'.require "the -PRPs 'to* conduct "Jif speci-
* . fiec in the Agreement) , laboratory audit's* to erisur'e "compliance., with pro-
' ^P.er QA/^C. and^, analytical..procedures/as*•s'peci'f'ied in" the Samp'ling"and
'^Analysis Plan-. - These ^audits rwi 11- involve on-s*ite"'inspect ions of labora-
"tories used by PRPS and analyses of selected QA/QC samples,. All,proced-
ures must be in accordance with those outlined in The' User-'s Guide to
the Contract Laboratory program, (U.S. EPA, 198S) or, otherwise specified
in tre E asp ling'and Analysis Plan. '-rjiztv _•" •'•_
- ",_o t, ^Chain-oi
'."".".. procedures. are'-described-iin'the 'Natlon'al Enforcement
" "-'* -'-•--• ----_ (NElC):-Policies -and-Procedures Manual, tUlS. EPA,
3). Evaluation of chain-of-custody procedures will occur darirg
laboratory audits as well as during on-site inspections of sampling
activities.-. ,£ :• -± .^.i -- V ''-*>• "--*-'* "'"
• /l.rt ' • J-' .1.1--
Meeting*
^——— * . ,^,? f . . .,. - , ; ~ ,v, :• ', - - \'^ , ' " '£ . „ ^v '^
.^ ,, _ Meetings^-between EPA, 'the State;'and-PRPs-should be'-he'ld* on a regu-
,lar~basis (as specified in the Agreement) and af'cri'tical^times durirc
" thel'Rl/rs.-, Such critical times nay at- a: minimum include when'the SOW
._and the Work Flan are-reviewed,'the »R* is-'in progress and completed,
remedial alternatives are*developed"and screened, detailed'analysis of
the alternatives is- performed*,' and the dra'ft^ and' fir.al^ RI/FS^reports are
A-2S
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OC-J'
submitted. These meetings will discuss overall progress, discrepancies
in the work performed,_ problems encountered in the performance of RI/FS
activities and their resolution, community relations, and other related
issues and concerns. While meetings may be initiated by either the PRPs
or 1PA at any time, they will generally be conducted at the stages of
the RI/FS listed below.
o initiation of Activities
EPA, the State, and the PRPs may meet at various times before field
activities begin to discuss the initial planning of the RI/FS. Meetings
may be arranged to discuss, review, and approve the SOW; to develop the
EPA/PR? Agreementi and to develop, review, and approve the Work Plan.
o Progress
EFA may revest meetings to discuss the progress of the RI/FS,
These meetings should be held at least quarterly and will focus on the
iter.s submitted in the monthly progress reports and the findings from
EPA oversight activities. Any problems or deficiencies in the work will
be idertifiec and corrective measures will be requested (see
Section VIII and Attachment IV) of this appendix.
o Closeout
EFA may request & closeout meeting upon completion of the FI/FS.
This meeting will focus on the review and approval of the final RI/FS
report, termination of the RI/FS Agreement, and any final on-site activi-
ties which the PRPs may be required to perform. These activities may
include maintaining the site and ensuring that fences and warning signs
are properly installed. The transition to remedial design and remedial
action will also be discussed during this meeting.
Special Sfudi.es
EPA may determine that special studies related to the PRP RI/FS are
required. These studies cars be conducted to verify the progress and
results cf RI/FS activities or to address a specific complex or contro-
versial issue. Normally, special studies art performed by the PRPsr
however, there may be cases in which EPA will want to conduct the
independent studies. The PRPs should be informed of any such studies
and given adequate time to provide necessary coordination of site per-
sonnel and resources. If not provided for in the Agreement, modifica-
tions to the Work Plan may be required.
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-.ATTACHMENT_IV ^ •
"'O * ' ' •
CCWTROt'OF ACTIVITIES
Identifa.cat.ion of Deficiencies
Oversight activities nay identify unsatisfactory or deficient PRP
performax.ee. ^The determination^of such performance, may be based upon
findings such *ast " " "", _ I „ , 0>, , • •* ft , • * i* " • <
,,,.,. v . ,"-'•!' -.;•".- ~ ' I ^ - - -
o "• Work^ products are inconsistent with the SCK or "Work" Plan;
> ~, ', t • ' • * -*.
o Technical deficiencies exist in submittals or other RI/FS
products;
;6 ."-'
,, : • ; ' • "•*-•.-'. ^' ." . v < ' 7 •> - -
, Agency review &no approval procedures, for workiproducts generally
"allow .three .types .of .responses: - (I) approval;, (2 ),. approval .with nodi fi-
i cations; and .'(3)" "non-approval, p -Non-approval of a work .product- . tinclud-
ing',,pro3'ect| plans) 'imnediately ^constitutes a notice. of deficiency. EPA
will, iiranedaa'tely no'tify the PRPs if- any _work product is not approved and
will eicplain 'the reason for such a finding, ;^,n': • •» * •"
t * % * . »*•— **•*.*"?••« "»." *
with "modifications will .not rl«ad to a, notice of deficier.cy
if th* oodifications are made by the PRPs without delay. If the PRPs
significantly delay in responding to the modifications, the RPM would
issue a notice of deficiency to the ?RP project manager detailing the
following elements:
A description of the deficiency or a statement describing
in what najoner the work product was found to be deficient
or unsatisfactory j
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Modifications that the PRPs should make in the work prod-
uct to obtain approval?
A request that the PRPs prepare a plan, if neceisary, or
otherwise identify actions that will lead to an accept-
able vork product?
A schedule for submission of the corrected work product;
An invitation to the PRPs to discuss the matter in a con-
ference," and
A stateaerit of the possibility of EPA takeover at the
PRPs' expense, EPA enforcement, or penalties (as appro-
priate) ,
o Corrective Measures Regarding Field Activities
When the lead agency discovers that the PRPs (or their contractors)
are performing the RI/F5 field work in a manner that is inconsistent
with the Work Plan, the PRPs should be notified of the finding and asked
to voluntarily take appropriate corrective measures. The request is
generally made at a progress meeting, or, i£ immediate action is required,
at a special meeting held specifically to discuss the problem. If correc-
tive measures are not voluntarily taken, the RPK should, in conjunction
with .appropriate Regional Counsel, issue a notice of deficiency contain- ,
ing the following elements:
A description cf the deficiency;
A request for an explanation of the failure to perforr,
satisfactorily and a plan fez addressing.the necessary
corrective measures;
A statement that failure to present an explanation ina> be
taken as an admission that there is no valid explanation;
An invitation to discuss the matter in a conference
(where appropriate);
A statement that stipulates penalties may accrue or are
accruing, project termination may occur, and/or civil
action may be initiated if appropriate actions are not
taken to correct the deficiency,- and
/•
A description of the potential liabilities incurred in
the event that appropriate actions are not taken.
Modifications to the Work Plan/Additional Work
Dnder the Administrative Order (or Consent Decree), PRPs agree to
complete the RI/FS, including the tasks required under either the orig-
inal hcrk Plan or a subsequent or modified Work Plan. This may
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include determinations and evaluations of conditions that are unknown at
^the time of execution of the Agreement. Modifications to the original
RI/FS Work Plan are frequently, required as fiel'd work progresses. Wort
not explicitly covered in the Work Plan is often required and therefore
provided for in the Order. .This work is usually identified during the
. P.: and is driven by the need for further information in a specific area.
In general, the Agreement should provide for fine-tuning of the Rl, or
the investigation of an area previously unidentified. AS it becomes
-clear what additional work is necessary",J EPA'will notify the PRPs of the
work to be performed and determine a schedule for completion of the work.
EPA must ensure that clauses for modifications to the Work Plan are
included in the Agreement so that the PRPs will carry out the modifica-
tions as the need for them is identified. To facilitate negotiation en
these points, EPA,may .consider one,or more of the following provisions
in the Agreement for addressing such situations:
.Defining.the limits of additional work requirements;
- . Specifying the dispute-resolution process vf of'"modified Work
: _- Flans and additional work requirements;
Defining the,applicability of stipulated"penalties to any addi-
tional-work which the PRPs agree to undertake.
Dispute Resolution ., • •'•-;.." •, •
As discussed elsewhere in this guidance, the RI/FS Order1 developed
between EPA and the PRPs sets forth the terms and conditions for con-
ducting the PI/FS. An ".element ofrthis Agreement is a' statement of the
specific steps tc be taken if a dispute arises between EPA (or its
representatives) and the PRPs; These-steps "should be well defined and
.-agreed upon by.-all signatories to the Agreement.
">»". -
A dispute with respect to the Order is followed by a specific
^period .of discussion'with the PRPs. After the discussion period, EPA
-issues a final decision which becomes incorporated into the Agreement.
1 Administrative Orders should clarify that with respect to all subnttals
..and work performed, EPA will be the ".final arbiter. The court, on the
other har.d, is the final arbiter. for.:Consent Decrees.
jPenalties •. -*i • A - ' ' -
~- , : - • • j, : < ' ' .' "
..A3 an incentive for. PRPs to.properly, conduct the RI/FS and correct
any deficiencies discovered during the .conduct of the Agreement, EFA
should include stipulated penalties. Section 121 provides up to S25,CCC
• per day in .stipul'at'ed penalties" for violations o'f a Consent Decree while
Section 122 allows.EPA to seek or impose civil.penalties for violations
of Administrative Orders. Penalties should begin to accrue on the first
"In order to provide for stipulated penalties in an Administrative Order
"tr.e oarties must voluntarily include them in the .terms of, the Agreement.
„*, . -i .•- '..,',.' - -' ..A.-
A-3:
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day of the deficiency and continue to be assessed until the deficiency
is corrected. The type of violation (i.e., reporting requirements
vs. laplejaentation of construction requirements) , as well as the amounts
should be specified as stipulated penalties in the Agreement to avoid
negotiations on this point which may delay the correction. The amounts
should be set pursuant to the criteria of Section 109 and as such must
take into account the nature, circumstances, extent, and gravity of the
violations as well as the PRPs' ability to pay, prior history of viola-
tions, degree of culpability, and the economic benefit resulting from
noncompliance. Additional information on stipulated penalties can be
found in OECM's "Guidance on the Use of Stipulated Penalties in Hazard-
ous Waste Consent Decrees* (September 27, 1987).
Project Takeover
A Generally, EPA will consult with PRPs to discuss deficiencies and
corrective measures. If these discussions fail, EPA has two options:
(1) pursue legal action to force the PRPs to continue the work; or
(2) take over the RI/FS. If taking legal action will not significantly
delay implementation of necessary remedial or removal actions, EPA may
commence civil action against the noncomplying PRP to enforce the Admin-
istrative Order. Under a Consent Decree, the matter would be presented
to the court in which the Decree was filed to enforce the provisions of
the Decree.
If a delay in RI/FS activities endangers public health and/or the
environment or will significantly delay implementation of necessary
remedial actions, EPA should move to replace the PRP activities with
Fur.d-f inanced actions. The RPM will take the appropriate steps to
assume responsibility for the RI/FS, including issuing a stop-work crder
to the PRPs and notifying the EPA remedial contractors. In issuing stop
work orders; RPKs should be aware that Fund resources may not be automat
ically available. But, in the case of FRF actions which threaten hurar.
health or the environment, there may be no other course of action. Once
this stop work order is issued, a fund-financed RI/FS will be undertaker
consistent with EPA funding procedures.
WDR376/029
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