v>EPA
United States
Environmental Protection
Agency
Superfund Task Force Recommendation 16:
Provide Reduced Oversight Incentives to Cooperative, High
Performing Potentially Responsible Parties
Summary of Findings
July 2019
Office of Site Remediation Enforcement
Office of Enforcement and Compliance Assurance
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Executive Summary
In May 2017, the Administrator commissioned the Superfund
Task Force to provide recommendations on how the U.S.
Environmental Protection Agency can restructure the cleanup
process, realign incentives to expedite remediation, reduce
oversight for cooperative potentially responsible parties (PRPs),
incentivize PRPs to remediate sites, encourage private
investment in cleanups and promote revitalization of properties
across the country.
In July 2017, the Agency released the Superfund Task Force
Report identifying opportunities to accelerate cleanup and reuse
of Superfund sites. The Report identified 5 goals for the Agency
with 42 specific recommendations for meeting the goals.
Recommendation 16.1 proposed to incentivize cooperative,
high-performing PRPs by reducing Agency oversight, as
appropriate.
Pursuant to the Task Force recommendation, a workgroup was
formed in September 2017 to develop recommendations to address Recommendation 16.1. The
workgroup was guided by the basic premise that oversight plays an important role in ensuring
that response actions are protective, and that reduced oversight must never jeopardize the
protection of human health and the environment.
The workgroup's summary findings include several conclusions and recommendations. Principal
among them are:
• Best practices to facilitate efficient oversight for all Superfund response actions by
setting forth a framework for communication, maximizing internal resources, and
streamlining the remedial review process through the collaborative review of documents,
use of templates, and commitment to schedules.
• Criteria for determining whether a performing party is cooperative and capable and
therefore eligible for reduce oversight during Superfund response actions such as
limiting the number of required deliverables, samples, and site visits, and, where
appropriate, allowing for flexibility in the remedial implementation process.
• Use of existing tools to implement these recommendations.
CONTENTS
Executive Summary i
Workgroup Members ii
Background 1
Recommendation 1 2
Recommendation 2 4
Recommendation 3 5
Recommendation 4 6
Summary of Recommendations 7
Appendix A 8
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SFTF #16.1 Workgroup Members:
Captain: Karen Melvin (Region 3)
Region 1 Joan Buonopane
Bob Cianciarulo
Region 3 Joan Armstrong
Mitch Cron
Jeffery Garcia
Darlene Kelly
Carlyn Prisk
Charlie Root
Leslie Vassallo
Humane Zia
Region 4 Greg Armstrong
Stacey Haire
Kim Jones
OSRE David Dowton
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BACKGROUND
On October 2, 1995, the U.S. Environmental Protection Agency (EPA or the Agency) announced
"common sense" reforms focused on making the Comprehensive Environmental Response,
Compensation, and Liability Act (commonly referred to as Superfund) "faster, fairer, and more
efficient," including the initiative to encourage and reward cooperative potentially responsible
parties (PRPs) by reducing EPA oversight at sites where quality work is being performed by
such parties. To implement this reform, EPA issued three1 guidance documents to the Regions.
On July 31, 1996, EPA issued the Reducing Federal Oversight at Superfund Sites with
Cooperative and Capable Parties Guidance, OSWER Directive No. 9200.4-15 ("1996
Guidance"). The objective of the 1996 Guidance was to improve and/or recognize established
relationships with cooperative parties by identifying sites where reduced oversight was
appropriate without compromising human health and the environment. Specifically, the 1996
Guidance provided: 1) criteria for PRPs to demonstrate both technical capability and
cooperativeness, 2) methods to identify eligible candidates for reduced oversight, 3) criteria for
the EPA Regions to determine whether a site was appropriate for reduced oversight, 4) methods
to identify oversight activities that could be modified or reduced as appropriate, and 5) examples
on how to improve transparency and expectations regarding oversight bills. To determine the
efficacy of the recommended reforms, the 1996 Guidance instructed EPA Headquarters and the
Regions to develop methods to account for oversight reductions at each site.
On May 17, 2000, the EPA issued the Interim Guidance on Implementing the Superfund
Administrative Reform on PRP Oversight, OSWER Directive No. 9200.0-32P ("2000
Guidance"), superseding the 1996 Guidance. Importantly, the 2000 Guidance restated the
Agency's commitment to reduce Superfund transaction costs where appropriate but found that
the previous guidance's charge to quantify the reduction of oversight based on the reforms was
unattainable due to the difficulty in "establishing a baseline of oversight" against which site-
specific cost reductions could be measured for the wide variability in site-specific characteristics.
The 2000 Guidance, therefore, re-directed the EPA Regions to focus on engaging PRPs in the
oversight discussion with the common goal of transparency and/or as a means to promote
appropriate oversight. Additionally, the 2000 Guidance identified oversight management
practices to be implemented at all sites with settled PRPs and provided examples of potential
cost-saving techniques to improve the effectiveness and efficiency of oversight management,
while recognizing that some methods might be inappropriate in site-specific situations.
On December 22, 2006, EPA issued a third memorandum, Using RCRA's 'Results-Based
Approaches and Tailored Oversight Guidance' when Performing Superfund 1 -ersight
("2006 Guidance "), recommending that the Superfund program use the specified RCRA
guidance document {Results-Based Approaches and Tailored Oversight Guidance for Facilities
Subject to Corrective Action under Subtitle C of RCRA, EPA 530-R-03-012, September 2003) to
complement the 2000 Guidance, when considering the appropriate level of oversight at
individual Superfund sites. Similar to the 2000 Guidance, the 2006 Guidance recommended
tailoring the level of oversight to enhance timely, efficient and protective cleanups based on
1 EPA also issued Federal Facilities Streamlined Oversight Directive, Jim Woolford, OSWER Directive9230.0-75,
November 29, 1996 which deals with federal facility oversight versus private party oversight.
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facility-specific conditions such as site complexity, compliance history, and financial and
technical capability of the facility, and provided examples to reduce oversight activities that
might be appropriate based on facility-specific circumstances.
Together, these three guidance documents demonstrate the Agency's ongoing commitment to
reexamine and reduce oversight for cooperative and capable PRPs performing cleanups at
Superfund sites.
This report reinforces previous efforts by the EPA to reduce oversight costs, where appropriate,
emphasizes previously recommended practices, and outlines additional incentives for
cooperative and capable performing parties.
The workgroup provides the following four recommendations that enhances the 2000 guidance,
reinstates some concepts from the 1996 guidance, and proposes a tracking system to ensure
sustainability of the concepts of reduced oversight, where appropriate.
Recommendation I:
Recommended Practices to Facilitate Efficient Oversight
The workgroup has identified the following best practices that have benefited the cleanup
process. The workgroup recommends that these practices be used as appropriate, at all sites
where the EPA oversees a response action by settling PRPs.
1) Communication
Active communication between the EPA and PRPs generally is beneficial during all PRP-lead
Superfund response actions, but it is particularly important in the initial phases (e.g., scoping of
remedial investigation and feasibility study (RI/FS)) of site work, or even before, i.e., during
negotiations. During this time, the topic of EPA oversight costs should be squarely addressed, so
that it is not overlooked amidst the myriad of site activity that routinely occurs.
The EPA, states, tribes, and PRPs should engage in early discussions regarding the response
actions to be performed, corresponding oversight expectations, and billing to avoid unexpected
surprises and disagreements. These discussions should be revisited on a regular basis. The
discussion should consider the Conceptual Site Model2, work performance, oversight, and the
means to achieve it. If the EPA has contractor support for the site, the Agency should consider
whether the contractor should participate in such discussions.
The discussion should allow all participants to express their thoughts and expectations regarding
the appropriate level of oversight for the work to be performed that year; however, the final
decision on the appropriate level of oversight will ultimately be the EPA's, in consultation with
the state or tribal partners as appropriate.
2 Environmental Cleanup Best Management Practices: Effective Use of the Project Life Cycle Conceptual Site
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Preferably, discussions with PRPs for the performance of work should occur during the initial
stages of settlement negotiations. Additionally, once a PRP is performing work pursuant to a
consent decree, administrative settlement agreement and order on consent, and/or other
settlement enforcement document, the EPA should engage in oversight discussions at the
beginning of each new phase of work and/or at a minimum on a yearly basis.3 Interested state
and tribal partners should be invited to participate in any discussion of appropriate oversight
between EPA and PRPs. EPA, PRPs, and the state or tribes should review the nature and
complexity of the work ahead and discuss appropriate levels of EPA and state or tribal oversight
necessary to ensure that the Superfund response work being conducted will result in a response
that is protective of human health and the environment. Periodic meetings may also be useful to
review levels of PRP oversight by the EPA and the state or tribes over the past year, and to allow
the EPA, PRPs, and the state or tribes to discuss levels of oversight for the coming year.
2) Use of In-House Experts
Generally, Agency contractor costs are a large portion of the EPA's oversight costs. The use of
contractors may be necessitated by EPA's available staffing resources; however, it is important
that, where possible, Regions consider relying upon in-house expertise rather than engaging
outside contractors if it would result in cost savings.
When cleanup work involves a discrete task, it may be more cost effective to use an in-house
expert who is familiar with the site and can focus on the task more efficiently than a contractor
that is unfamiliar with the site's complexity and enforcement history. Based on feedback from a
survey of Superfund remedial project managers (RPMs) throughout the Regions, below are some
examples where RPMs may consider using in-house experts when possible:4
• Preparing and analyzing data during five-year reviews;
• Site visits to oversee PRP response activities;
• Reviewing periodic progress reports (e.g., annual work progress reports for ground water
cleanup sites);
• Using state/tribal resources for oversight;
• Technical support for:
o ESDs
o Record of decision (ROD) amendments
o Interim actions
o Remedy optimization study
o Non-Time critical removal actions
3) Synchronizing Document Review
The state's role in the Superfund process is described, among other places, in Subpart F of the
National Oil and Hazardous Substances Pollution Contingency Plan, more commonly known as
the National Contingency Plan (NCP) (40 C.F.R. Part 300). Specifically, Section 300.500 of the
3 Regions may consider timing their offer to meet letter with the issuance of the periodic oversight bill.
4 The discussion to use in-house versus contractor review should be part of the initial and subsequent oversight
discussions referenced in subsection titled "Communication," above.
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NCP states that, "EPA shall ensure meaningful and substantial state involvement in hazardous
substance response..." The EPA and the state or tribes should communicate periodically
regarding the possibility of reducing any duplicative reviews of Superfund response-related
documents, while at the same time providing opportunity for the state to have substantial and
meaningful involvement in Superfund response activities.5
To best represent their stakeholders' interests, the EPA and the state or tribes may each have
their own toxicologists, hydrologists, geologists, or other staff review the same information for
particular parts of a response action. However, where the work that is being overseen is
relatively non-complex and/or non-controversial, there may be instances when it is unnecessary
for both the EPA and the state or tribes to review the same information. In such instances, the
EPA should work cooperatively with the state or tribes to reduce unnecessary simultaneous
reviews of documents.
4) Use of Site Work/Cleanup Models
Submissions by PRPs implementing a response action are frequently voluminous and complex,
with large variations in organization and content. RPMs and their teams work closely with PRP
contractors to close data gaps and/or reorganize sections of such submissions prior to Agency
review and approval. This process can be time consuming and increase the EPA oversight costs.
However, transaction costs may be significantly curtailed if PRPs consider the use of models for
the required submission (e.g., quality assurance project plans (QAPP), health safety plans, etc.).
The use of models provides clear guidance on what the documents should contain and serve as
tangible examples to define expectations. As view QAPP example, see
https://www.epa.gov/fedfac/assurin.g-quality-federal-clean.ups.
5) Timely Review of PRP Submissions by EPA and State/Tribes
To manage expectations, an estimate of the amount of time required for the EPA and the state or
tribes to review and provide comments on the PRPs' submissions should be discussed during the
initial stages of site work as referenced in the Communications section of this document, taking
into account the resource constraints of the EPA and the state or tribes. The EPA and the state or
tribes should make every effort to complete reviews of the PRP submissions within the estimated
timeframe to the extent possible. Oral discussions, such as face-to-face meetings or video
conferences, may reduce the time needed for review and revisions as well as resolve issues more
quickly.
Recommendation 2
Additional Reduced Oversight Incentives for Cooperative and Capable PRPs
The recommended practices set forth above, when applied appropriately, should increase
efficiency and decrease oversight costs. These tools also provide ample opportunity for EPA, the
state/tribes, and PRPs to interact and develop a strong working relationship. In addition, for
PRPs who qualify as cooperative and capable, according to the recommended criteria set forth
5 See § 300.515(h)(3) of the NCP, Requirements for State Involvement in Remedial and Enforcement Response and
Superfund Memorandums ofAgreements, where applicable. See also CERCLA § 104(d), 40 C.F.R. Part 35.
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below, the EPA may provide the additional reduced oversight incentives described in this
section, below.
Prior to offering the additional oversight reduction incentives described below, EPA should
carefully evaluate the PRPs to determine whether they are indeed cooperative and capable. In all
circumstances, the EPA should carefully weigh the site-specific circumstances in deciding the
approach to be taken at a given site. It is in the EPA's discretion to adopt approaches that differ
from these recommendations where appropriate, on a case-by-case basis.
1) Eliminate or streamline interim deliverables or milestones
The EPA may determine that only preliminary and final design submissions are necessary, or
that several plans can be incorporated into one document. When appropriate, the EPA may also
decide that documented working meetings can serve as adequate replacements for certain interim
deliverables.
2) Reduce number of split samples or accept alternatives to split sampling
Depending upon site-specific circumstances, EPA can explore a reduction in the number of split
samples that might otherwise be collected or consider other alternative approaches to verify the
accuracy of PRP-collected data. Such approaches could include, for example, more frequent use
of laboratory audits, performance evaluation samples, use of field screening methods, or
performing field oversight of sample collection without collecting any (or a very limited number
of) split samples.
3) Use site audits or unannounced site visits instead of full-time or continuous
oversight.
Rather than maintaining a permanent and/or continuous presence at a site to oversee PRP work
or phases of work, the EPA and/or its contractors may instead perform sporadic unannounced
inspections at any time during the response process, including but not limited to, at the beginning
of a construction phase, during a particularly complex or critical process of the response action,
and/or during routine or repeated site construction or field activities. The EPA may also consider
having the state or tribes perform site visits without the EPA present and vice-versa.
Recommendation 3:
Eligibility Criteria for PRPs to be Considered Cooperative and Capable
The EPA and the state or tribes oversee work performed by the PRPs to ensure that it is being
implemented in accordance with enforcement documents6, scopes or statements of work, and
corresponding work plans. Oversight plays an important role in ensuring that response actions
are protective of human health and the environment. Reduced oversight should never jeopardize
the protection of human health and the environment. Ongoing discussions are essential between
all entities to determine appropriate oversight of the response work. For the most part, if the
EPA, the state or tribes, and the PRPs have participated in various phases of the response, the
6 Parties conducting work pursuant to a unilateral administrative order do not qualify for the additional reduced
oversight incentives since the EPA had to compel their performance and therefore parties are not considered
cooperative.
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PRPs should have a clear understanding of the relevant performance standards described in site
decision documents and what they must do to achieve these standards.
In many instances, cooperative and capable PRPs should be able to implement the response work
plan as approved by the EPA and the state or tribes, resulting in reduced oversight throughout the
response process. As such, the PRPs themselves may influence the oversight costs that the EPA
incurs, as their cooperation, quality work, timeliness, and overall competence may dictate the
level of oversight required for a site.
EPA may consider the following recommended criteria in evaluating whether a PRP has
demonstrated both acceptable technical capability and full cooperation with EPA, in either
current or prior work at the site or at other sites.
1) Technical Capability
To be considered technically capable, PRPs should:
• Consistently produce technically sound documents;
• Perform quality work as outlined in the NCP, agency regulations and policies; and
• Perform acceptably in laboratory and/or field audits.
2) Cooperativeness
To be considered fully cooperative, PRPs should:
• Agree to reasonable (based on specific site factors) time frame(s)
for completing site work, including all required deliverables, and demonstrate
timely completion of such work (e.g., first drafts are timely submitted, complete,
and require only minimal revision);
• Demonstrate good faith resolution of technical issues;
• Remain in compliance with the terms of enforcement document(s); and
• Follow through on oral commitments made to EPA.
In general, if the criteria above are met, the PRP's work may qualify for reduced oversight as
discussed in this guidance. The EPA should be mindful that there may be site-specific
circumstances, such as technical complexity, the degree of risk to human health or the
environment, or a community's desire for increased oversight, that may make reduced oversight
inappropriate for some sites as a whole, or for some site activities in particular. All site-specific
circumstances should be considered in deciding whether reduced oversight is appropriate at a
site.
Recommendation #4
Implementation: Tracking Requirements
The EPA Regions should provide any settling PRPs with an opportunity to discuss and mutually
consider which of the recommendations set forth above may apply to their work at the site. To
verify that this opportunity is provided consistently, and to ensure the successful implementation
of these concepts, it is recommended that the EPA Regions utilize the enforcement module in the
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Superfund Enterprise Management System (SEMS) to track a written offer to discuss the
appropriate level of oversight at each site. The EPA Regions should periodically run a report in
SEMS to verify that the offer has been extended. An example of a written offer to the PRPs is
attached as Appendix A.7
SUMMARY OF RECOMMENDATIONS:
The workgroup spent a great deal of time analyzing previous and existing guidance documents
related to reducing oversight for response actions at Superfund sites. In addition, the workgroup
surveyed RPMs across the nation to determine which of the concepts in those guidance
documents were most likely to achieve the goal of reduced oversight where appropriate. Based
on these considerations, the workgroup recommends the following:
• The EPA's Office of Site Remediation Enforcement and the Office of Superfund
Remediation and Technology Innovation should re-emphasis the 2000 Guidance to
ensure its continued implementation by providing the four recommendations of the
workgroup. These additional four recommendations are:
o Recommended practices to facilitate efficient oversight;
o Additional reduced oversight incentives for cooperative and capable PRPs;
o Eligibility criteria for PRPs to be considered cooperative and capable;
o Implementation: tracking requirements.
Attachment
7 As an alternative to sending a separate letter, the EPA Regions may include the offer to discuss the appropriate
level of oversight in the periodic oversight bill transmittal letter.
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APPENDIX A
Sample Offer to Meet letter
[DATE]
[PRP Contact and Address]
Re: Site Name/SSID
EPA's Commitment to Appropriate Level of Oversight
Dear [PRP Contact]:
The EPA recognizes the value of working cooperatively with potentially responsible parties
(PRPs), with whom the Agency has entered into a settlement agreement to perform Superfund
response actions to ensure that the level of oversight activities is appropriate.
The EPA continues to be committed to the implementation of Superfund reforms on the
administration of PRP oversight, most recently highlighted in the June 2017 Superfund Task
Force Report to the EPA Administrator. These reforms encourage the EPA to look for
opportunities to achieve oversight costs savings while ensuring that PRPs conduct cleanups that
protect public health and the environment and are consistent with the terms of the settlement
agreement, the Comprehensive Environmental Response Compensation and Liability Act
(CERCLA, commonly referred to as Superfund) and the National Oil and Hazardous Substances
Pollution Contingency Plan (referred to as NCP).
EPA is hereby offering you the opportunity to discuss oversight expectations for current and
upcoming activities at the [insert site name] Superfund Site. Please contact [RPM name, email
address and phone number]to arrange these discussions or to schedule a meeting.
Sincerely,
[Regional Designated Signature]
[insert regional name]
[insert title]
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