\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I WASHINGTON. D C 20460
f
MAR 2 0 2012
OSWER Directive 9200.2-109
MEMORANDUM
SUBJECT: Promoting Enforcement First for Remedial Investigation/Feasibility Studies at Superfund
Sites
FROM: Elliott J.Gil berg, Director -jL<>4l (J
Office of Site Remediation Enforcement
Office of Enforcement and Compliance Assurance
James E. Woolford, Director
Office of Superfund Remediaticuxand Technolo;gy Innovation
Office of Solid Waste and Emergency Response
TO: Superfund National Policy Managers, Regions 1-10
Superfund Regional Counsel Branch Chiefs, Regions 1-10
Superfund Remedial Branch Chiefs, Regions 1-10
The purpose of this memorandum is to reaffirm the EPA's commitment to having potentially responsible
parlies (PRPs) conduct the remedial investigation/feasibility study (RJ/FS) at Superfund sites wherever
appropriate. Regions should continue to carefully review each case to ensure that the EPA is effectively
using its enforcement authorities to maximize PRP performance of the RI/FS, thus preserving Hazardous
Substances Trust Fund (fund) resources for sites where there are no viable responsible parties capable of
performing the RI/FS. When a region decides to proceed with a fund-lead RI/FS, it should complete an
enforcement decision document for the site (RI/FS enforcement decision document). Regions should
also consult with the Office of Site Remediation Enforcement (OSRE) and the Office of Superfund
Remediation and Technology Innovation (OSRTI) before committing fund dollars to pay for an RI/FS
project expected to exceed $2 million.
Background
40 C.F.R. 300.400(c) of the National Oil and Hazardous Substances Pollution Contingency Plan
provides that in determining the need for and in planning or undertaking fund-financed action, EPA
shall, to the extent practicable, and among other things: engage in prompt response and conserve fund
monies by encouraging private party response. In 2005, OSRE and OSRTI jointly issued a memorandum
which encourages regions to conduct early and thorough PRP searches and to consider carefully whether
internet Address (URL) • ltltp;//www.epa.gov
RecyeledfRscyelable • Printed with \/egeiable Oil Based hX» on 100% Postconsumer Process CHIonne Free Recycled Papei
-------
it is appropriate for the identified PRPs to conduct the RI/FS at a site. See "Enforcement First at
Superfund Sites: Negotiation and Enforcement Strategies for Remedial Investigation/Feasibility Studies
(RI/FS)," OSWERDirective 9355.2-21 (August 9, 2005) available at http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/enf-first-rifs.pdf ("2005 RI/FS Enforcement Guidance"). That
guidance also encourages regions to consider, where appropriate, negotiating an administrative order on
consent (AOC) or issuing a unilateral administrative order (UAO) for PRP performance of the RI/FS.
The 2005 RI/FS Enforcement Guidance further provides that, if a region decides to proceed with a fund-
lead RI/FS at a site, it should create a written record of its decision (i.e., the RI/FS enforcement decision
document) which memorializes the decision that "enforcement first" is neither possible nor practicable.
This document is enforcement confidential and should be labeled as such.
The RI/FS enforcement decision document should contain 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 [each] PRP using the criteria listed [in the 2005 RI/FS Enforcement Guidance],
including but not limited to:
o documented liability;
o financial viability;
o technical capability;
o [the] EPA's prior experience in working with [that particular] PRP;
o other site-specific considerations; and
o why the region has decided not to pursue a PRP-lead RI/FS.
In accordance with the 2005 RI/FS Enforcement Guidance, our offices have periodically reviewed
selected regional RI/FS enforcement decisions to proceed with fund-lead RI/FSs to better understand the
circumstances that led to such decisions.
Completion of "Preliminary PRP Search" Prior to a Fund-Lead RI/FS
In 2009, the EPA's Office of Inspector General recommended that OSRE develop and implement a
control to monitor the status and timeliness of PRP searches at non-national priority list sites. See
Evaluation Report, "EPA Needs to Improve Internal Controls to Increase Cost Recovery," Report No.
09-P-0144 (April 27, 2009) available at http://www.epa.gov/oig/reports/2009/ 20090427-09-P-0144.pdf.
Consistent with this recommendation, in June 2011, OSRE, in close coordination with the EPA's
National PRP Search Enhancement Team, issued a definition for "Preliminary PRP Search" and a
method for tracking the completion of the preliminary PRP search in the Comprehensive Environmental
Response, Compensation, and Liability Information System (CERCLIS). See Attachment 1. Tracking
the completion of the preliminary PRP search is intended to allow the EPA to assess whether basic
search activities have been completed for the purpose of ensuring timely PRP response and/or cost
recovery.
Regions should complete a preliminary PRP search prior to committing funds to initiate a fund-lead
RI/FS. The requirements of a preliminary PRP search are similar to the elements of an RI/FS
enforcement decision document. Thus, to avoid duplication of efforts, regions should consider using the
RI/FS enforcement decision document to memorialize the activities taken to complete the preliminary
2
-------
PRP search prior to a fund-lead RI/FS. The date of the RI/FS enforcement decision document should be
recorded as the date of the preliminary PRP search completion in CERCLIS. Attachment 2 contains a
recommended outline of the minimum information that should be included in the RI/FS enforcement
decision document. This recommended outline combines the recommendations found in the 2005 RI/FS
Enforcement Guidance and the recommendations for completing a preliminary PRP search presented in
the June 2011 memorandum.
The RI/FS enforcement decision document will provide the rationale for proceeding with a fund-
financed RI/FS and should help ensure that the EPA fully considers its enforcement options prior to
deciding to proceed with a fund-lead RI/FS. In addition, documentation of the region's enforcement
activities at the RI/FS stage, including completion of a preliminary PRP search, will assist the region in
any subsequent requests for fund monies, e.g., evaluation by the National Risk Based Priority Panel for a
fund-lead remedial design/remedial action.
Headquarters Consultation Prior to Committing Superfund Dollars to Fund an RI/FS Expected to
Exceed $2 Million
Prior to committing fund monies to pay for an RI/FS project expected to exceed $2 million, regions are
requested to consult with headquarters. Regions should initiate consultation with the Director of the
Regional Support Division (RSD) of OSRE and the Director of the Assessment and Remediation
Division (ARD) of OSRTI by sending an email to these two officials and their designated staff contacts
before a decision is made to commit funding for the RI/FS. In its request, the region should attach a
copy of the draft RI/FS enforcement decision document.
Regions are encouraged to initiate consultation early. During the consultation, headquarters staff will
review the draft RI/FS enforcement decision document to ensure that the EPA is effectively using
enforcement authorities to secure PRP-lead RI/FSs. As needed, headquarters will consult with regions if
potential additional enforcement opportunities are identified.
Headquarters intends to complete its review within two weeks of the region's request for consultation,
assuming sufficient enforcement history is provided, unless the region requests a shorter turnaround time
due to conditions at the site.
Headquarters Enforcement Work Planning, Oversight, and Assistance
OSRE and OSRTI also plan to have discussions with the regions regarding enforcement issues as part of
work planning meetings. Further, headquarters may conduct periodic after-the-fact reviews of draft and
final enforcement decision documents under $2 million to analyze the impact of this memorandum.
OSRE staff is also available to assist regions in taking an enforcement action against a PRP at any site.
Areas of such assistance may include issuing a UAO, insurance reviews, ability-to-pay analysis, de
minimis settlements, and advice on allocation.
Conclusion
Early analysis and strategic use of CERCLA's enforcement authorities will maximize performance of
RI/FSs by PRPs and help preserve fund dollars for those Superfund sites where there are no viable PRPs
capable of performing the RI/FS. Regions should evaluate each case carefully to determine whether
opportunities exist to have PRPs perform the RI/FS and develop decision documents for all fund-lead
-------
RI/FSs. Further, regions should consult with headquarters prior to committing Superfund money to pay
for an RI/FS expected to exceed $2 million.
This memorandum may be revised or additional guidance issued in the future as a result of experience
gained through consultations and dialogue with the regions. This document is available on the EPA's
website at http://www.epa.gov/compliance/resources/policies/cleanup/superfund/rifs-first-2012.pdf. For
questions about this document, contact Rebekah Reynolds in OSRE at (202) 564-4306 or Robin
Anderson in OSRTI at (703) 603-8747.
Disclaimer
This memorandum is intended exclusively to provide information to employees of the EPA. This
document is not a rule and does not create any legal obligations or enforceable rights. Whether and how
the EPA applies this information to any particular site will depend on the facts at the site. The EPA
decision makers retain the discretion to adopt approaches that differ from the guidance provided in this
memorandum, where appropriate, on a case-by-case basis and in accordance with the statute and
regulations. This document does not affect determinations of CERCLA liability, and does not provide
any relief from or limitation of liability.
Attachments (2)
cc: Cynthia Giles, OECA
Mathy Stanislaus, OSWER
Lisa Feldt, OSWER
Barry Breen, OSWER
Larry Stanton, OSWER/OEM
Suzanne Rudzinski, OSWER/ORCR
David Lloyd, OSWER/OBLR
Reggie Cheatham, OSWER/FFRRO
Carolyn Hoskinson, OSWER/OUST
Dave Kling, OECA/FFEO
Mary Kay Lynch, OGC
John Michaud, OGC/SWERLO
OSRTI Managers
Chloe Metz, Superfund Lead Region Coordinator, Region 2
NARPM Co-Chairs
Rebekah Reynolds, OECA/OSRE
Robin Anderson, OSWER/OSRTI
-------
Attachment 1
^s-
f iQt \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
<.t OF
JUN 23 2011 ENFORCEMENT AND
••^URANCE
MEMORANDUM
SUBJECT: Transmitted of "Preliminary Potentially Responsible Party Search Completion"
Measure Definition for Incorporation into the Superfund Program Implementation
Manua1forFY20I2
FROM: Elliott J. Gilberg, Director £ &U+tf(
Office of Site Remediation Enforcement
TO: Superfund National Policy Managers, Regions I — X
Superfund Regional Counsel Branch Chiefs, Regions I - X
Attached is the "Preliminary Potentially Responsible Party (PRP) Search Completion"
guidance document which describes preliminary search activities for identifying PRPs related to a
site. This document also provides guidance on how to properly document the activities conducted in
order to determine if there are PRPs to perform, or finance, all or a portion of the initial non-
emergency CERCLA removal or remedial response action at a site. The guidance contained in this
document will be incorporated as a reporting measure into the Superfund Program Implementation
Manual (SPIM) for implementation beginning in FY2012.
The "Preliminary PRP Search Completion" measure was developed in response to the Office
of Inspector General(OIG) Evaluation Report titled "EPA Needs to Improve Internal Controls to
increase Cost Recovery," Report Number: 09-P-0144, dated April 27, 2009. The OIG recommended
that the Assistant Administrator for the Office of Enforcement and Compliance Assurance (OECA)
develop and implement a control to "monitor the status and timeliness of PRP searches at non NPL
sites." OECA agreed with the recommendation and worked with the Regions, via the National PRP
Search Enhancement Team, Superfund Policy Managers and Office of Regional Counsel Superfund
Branch Chiefs to develop the measure. "Preliminary PRP Search Completions" will be tracked in
CERCLIS to help EPA determine if basic PRP search activities have been completed and if they led
to timely PRP response and/or cost recovery actions. When developing the measure, our focus was
to ensure that the completion of the activities outlined in the guidance would maximize the
opportunity for PRP response while not causing undue delays in initiating a timely Fund or PRP-lead
initial "non-emergency" response action at a site.
iniamel Adaras= rURi) • imn.rfwww.apa gov
PnntKtl with Vegetable OH Based inks en i ,jor , PcEi^ansumsr. Process CNanns Frais RsoyelBii Paper
-------
Attachment 1
Regions are expected to begin reporting "Preliminary PRP Search Completions" beginning in
FY2012 for NPL and non-NPL sites where a non-emergency removal or remedial response action is
expected at a site. The Preliminary PRP Search enforcement action is being added to CERCLIS and
will be available for update beginning in FY2012. Should you have any questions or concerns,
please contact Bruce Pumphrey of my staff at 202-564-4222 or via e-mail at
pumphrey.bruce@epa.gov.
Attachment
cc: National PRP Search Enhancement Team
Monica Gardner
Karin Leff
Benjamin Lammie
Helena Healy
-------
Attachment 1
Attachment
Preliminary Potentially Responsible Party
Search Completion Definition and Documentation/Reporting Requirements
Definition: "Preliminary PRP Search Completion:" the completion of certain activities
taken to make an initial identification of PRPs at a site in order to determine if there are
PRP(s) that are able to perform or finance all or a portion of the initial non-emergency
CERCLA removal or remedial response action at a site.
The Preliminary PRP Search will be considered complete when the Regions perform the
PRP Search tasks steps outlined in section 1 or 2 below.
1. Regions have completed and properly documented PRP Search tasks A-E, below,
as appropriate and practicable.
A. Site Location and Property Description
The Region has, as thoroughly as possible, identified the site location (including
one or more of the following: street address; parcel ID#; legal description from
current deed of ownership; and/or tax map) as necessary to complete requirement
l.B. below.
B. Current and Past Site Ownership Identification/Notification
The Region has, using the tools most appropriate for the site, conducted activities
to identify current site owners as well as past site owners at the time of disposal of
hazardous substances and where those site owner PRPs exist and can be located
within a reasonable time, considering the exigencies of the situation, the Region
has provided verbal notice and/or issued General Notice Letters to those parties
the Region determines to be liable and capable of performing the initial response
action at the site1. In addition, as a part of this task, Regions have obtained
information necessary to secure site access in order to allow for performance of
the initial non-emergency response action at the site.
C. Site Operation Identification/Notification
If the operator(s) of the site/facility that caused the release or threat of release of
hazardous substances are different from the site/facility owner(s) at the time of
disposal, the Region has undertaken PRP Search activities necessary to identify
site/facility operators and where those site operator PRPs exist and can be located
within a reasonable time, considering the exigencies of the situation, the Region
has provided verbal notice and/or issued General Notice Letters to those parties
the Region determines to be liable and capable of performing the initial non-
1 Regions may decide not to provide notice to certain liable and capable parties identified under tasks IB,
1C, and IE,, but should document the basis for such decisions to the site file through such mechanisms as
the Removal Action Memo Enforcement Addendum or the RI/FS Enforcement Decision Document.
-------
Attachment 1
emergency response action at the site
D. Site Owner/Operator Liability/Financial Viability Determination
For each party identified under A., B. or C. of this section, the Region has
determined, based on publicly available information whether: (1) the party may be
liable under Section 107(a) of CERCLA; and (2) the party may be financially
capable of performing or paying for all, or a portion of, the initial non-emergency
response action at the site.
E. Arranger/Transporter (A/T) Identification/Notification
The Region has determined, based on readily available information such as site
records, that either (1) no A/T PRPs appear to exist at the site or (2) there are A/T
PRPs at the site, and the Region has provided verbal notice and/or issued General
Notice Letters to those A/T PRPs initially identified through such information
who the Region determines to be liable and capable of performing the initial non-
emergency response action at the site and determined that, to the extent that A/T
PRPs exist, additional PRP search efforts may be required.
OR
2. The Region has completed all, or a portion of, the above PRP Search tasks and
entered into a settlement with or issued orders to compel the identified PRPs to
perform the initial non-emergency response action at the site.
Reporting and requirements for documentation of Preliminary PRP Search
Completion
If the Region has satisfied the Preliminary PRP Search Completion requirement by
satisfying the tasks identified in Section 1, above, the Region should document this
accomplishment in CERCLIS and in the site file. The documentation of the Preliminary
PRP Search Completion for the site file should include a summary of the PRP Search
tasks completed for each site. Such documentation can follow the format referenced in
the January 2011 PRP Search Reference Summary guidance document, or the Region can
follow a format already established, as long as it documents the Preliminary PRP Search
Completion tasks performed and results (e.g., Removal Action Memorandum
Enforcement Addendum, RI/FS Enforcement Decision Document as outlined in the 2005
RI/FS Guidance, OSWER Directive 9355.2.21(August 9, 2005)). The date that the
documentation summarizing the PRP search tasks is created should be recorded as the
completion date of the Preliminary PRP Search Completion milestone in CERCLIS.
If the Region has satisfied the Preliminary PRP Search Completion requirement by
performing the tasks identified in Section 2., above, the date of the enforcement
action/settlement to compel the initial non-emergency response action at the site should
be recorded in CERCLIS. That date should also be used as the completion date of the
-------
Attachment 1
Preliminary PRP Search Completion milestone in CERCLIS, while not required, Regions
may also want to document the PRP search activities accomplished prior to meeting the
requirements in section 2 in the site file, through the use of the PRP Search
Documentation Summary or other Regional mechanism.
-------
Attachment 2
Recommended Outline of Fund-Lead RI/FS Enforcement Decision Document
A. Site Location and Property Description
Identify the site location, including: street address; parcel ID#, legal description from current
deed of ownership and/or tax map.
B. Identify PRPs
For all PRPs, include business name and contact information.
1. Current and past ownership identification. Identify the current site owners as well
as past site owners at the time of disposal of hazardous substances. PRP search
there should be sufficient information on current ownership to secure site access
in order to allow for performance of the RI/FS.
2. Site Operation identification. Identify facility operators that caused the release or
threat of release of hazardous substances if different from the site owner(s) at the
time of disposal.
3. Arranger/Transporter Identification/Notification. Identify arrangers/transporters.
C. If no PRPs have been identified, what steps have been taken to identify PRPs at this
site?
To satisfy the preliminary PRP search, operators should be identified. In addition, Regions
should determine, based on readily available information such as site records, that either (1) no
Arranger/Transporter PRPs appear to exist at the site or (2) there are Arranger/Transporter PRPs
at the site and the Region has issued Oral Notice and/or General Notice Letters to those
Arranger/Transporter PRPs identified through such information and determined that, to the
extent that arranger/transporter PRPs may exist, additional PRP search efforts may be required.
D. PRP Evaluation
For each PRP identified, describe the criteria used to evaluate each PRP, including but not
limited to:
1. Documented liability of the PRP, including likely defenses.
2. Financial viability of the PRP.
3. Technical capability of the PRP.
4. EPA's prior experience in working with the PRP.
5. Other site-specific considerations.
-------
Attachment 2
6. If the region has decided not to pursue the PRP, the rationale for such decision.
------- |