&EPA
United States
Environmental Protection
Agency
U.S. Environmental Protection Agency
Office of Enforcement and Compliance Assurance
Community Engagement Initiative
Encouraging Community Engagement in Superfund Enforcement:
A Compilation of Possible EPA Activities to Engage Communities
Request for Public Comment
Draft document
January 2013
-------
Table of Contents
I. Introduction
II. Background
a. Background on Community Engagement Initiative
b. Background on Superfund enforcement
c. Background on community engagement in Superfund enforcement
III. Organization of initial compilation
IV. Planned scope of the final compendium
V. Focus of the initial compilation
VI. Possible activities for encouraging community engagement in Superfund enforcement
a. Community engagement with PRP searches
b. Community engagement with enforcement for RI/FSs
i. Relevant provisions in EPA's model AOC for RI/FS
ii. Community engagement activities relating to RI/FS enforcement
c. Community engagement with enforcement for RD/RA
i. Relevant provisions in EPA's model CD for RD/RA
ii. Community engagement activities relating to RD/RA enforcement
d. Community engagement with enforcement for removals
i. Relevant provisions in EPA's model AOC for removal
ii. Community engagement activities relating to removal enforcement
e. Community engagement with enforcement for cost-recovery only
f. Community engagement with enforcement for Superfund noncompliance
VII. Conclusions and next steps
Appendix: Relevant excerpts from model Consent Decree for RD/RA
I
I
i
1
1
-------
Encouraging Community Engagement in Superfund Enforcement:
A Compilation of Possible Activities to Engage Communities
Request for Public Comment
I. Introduction
The U.S. Environmental Protection Agency (EPA) is seeking public comment on options for more
meaningful involvement of communities in the Superfund enforcement process. As an initial step, the
EPA Headquarters asked the Regional offices to provide examples of activities they have used in the past
or other ideas to engage communities in enforcement cases. Below is a preliminary compilation of
relevant activities, organized according to seven different types of Superfund enforcement activities.
The Agency now seeks input from external stakeholders (including communities, potentially responsible
parties (PRPs), and state, tribal and local governments) about these ideas and any others that might
prove beneficial. The EPA plans to consider such input when, in the future, it prepares a final
compendium of practices for Agency personnel to consider in future enforcement cases.
II. Background
Background on Community Engagement Initiative: In late 2009, the EPA announced the Community
Engagement Initiative (CEI) to promote community involvement in Superfund and other waste
programs. In May 2010, the Agency publicly issued an "Implementation Plan" for the initiative. (See
www.epa.gov/oswer/engagementinitiative.) The CEI Plan set forth 16 actions. Action 5 identified several
measures that the EPA would undertake to promote community engagement in enforcement activities
stemming from the EPA's waste programs. One of these measures (5.E) called for preparation of a
compendium of practices for successfully engaging communities in enforcement.1
Background on Superfund enforcement: For a general overview of the Superfund enforcement
process, see http://www.epa.gov/enforcement/cleanup/superfund/index.html. Below is a summary of
the process, beginning with the discovery of contaminated sites.
The Superfund law requires a person in charge of a facility to notify federal authorities if a
hazardous substance is released in an amount that exceeds a specified level. (See CERCLA § 103(a).) The
EPA can take an enforcement action against persons who fail to provide such notifications (or who fail to
provide notification in a timely manner).
Relying on these notifications or other reports, the EPA initiates steps to determine whether the
releases have resulted in contamination of a site. Under the Superfund law, the EPA has two methods
for addressing sites contaminated with hazardous substances. One involves the EPA pursuing the parties
responsible for the contamination in an effort to have them conduct the cleanup themselves, pursuant
to Agency oversight. The other involves the EPA and its contractors using Superfund monies to clean up
such sites; this may be followed by the Agency's efforts to pursue any viable responsible parties in order
to recover the monies that the EPA has spent.
1 The EPA took this CEI commitment to develop such a compendium and subsequently adopted it as a
commitment for its initiative on Environmental Justice (EJ) as well. See the discussion of activity #4.3 on page 75 of
the EPA's implementation plan for the "Plan EJ 2014" initiative at
http://www.epa.gov/environmentaljustice/resources/policy/plan-ej-2014/plan-ej-2011-09.pdf.
-------
The Agency begins any Superfund cleanup enforcement effort with a search for the parties
responsible for the contamination. This PRP search effort often involves the EPA issuing requests to
parties to provide records, documents and other information. In addition, the Agency invariably
requests access to properties in order to assess site conditions, conduct sampling and perform other
response activities. Persons who do not comply with such requests for information or access may be
subject to an enforcement action.
After identifying the parties responsible for the contamination, the EPA typically attempts to
negotiate settlements that require these parties to study the conditions at a contaminated site. For a
longer-term permanent cleanup, which is known as a remedial action (RA), such studies are referred to
as a remedial investigation (Rl) and a feasibility study (FS). The remedial investigation is intended to
determine the nature and extent of the
contamination, while the feasibility study is
an evaluation of the cost and performance
of technologies that could be used to clean
up the site. If a settlement agreement
cannot be reached for such studies, the EPA
may issue an order unilaterally for a party to
conduct them or the Agency may work with
the Justice Department to seek a judicial
order requiring them. Alternatively, the EPA
also has the authority to perform the RI/FS
itself and seek to recover its costs from the
responsible parties. In recent years, PRPs
have conducted slightly more than half of
the RI/FSs (mostly through negotiated
agreements known as Administrative
Orders on Consent (AOCs)).
Once the RI/FS is complete, the EPA
goes through a public comment process
before selecting the remedial action. The
process that the Agency uses to select the
cleanup for a site is transparent and subject
to public review and comment. In its record
of decision (ROD), the Agency spells out the
reasons underlying its selection of the cleanup. The ROD also includes a summary of the Agency's
analyses of, and responses to, the public comments it received when it first proposed the cleanup.
After the cleanup is selected, the Agency typically attempts to negotiate a judicial consent
decree (CD) requiring the PRPs to conduct the Remedial Design and Remedial Action (RD/RA) under EPA
Elements of Cleanup Settlement Agreements
In some cases, it might be important for the EPA to
reassure the public that it does not negotiate the
cleanup standards or selected cleanup with the PRPs
behind closed doors. For such sites, the Agency
could be clear that it merely negotiates the terms
obligating the PRPs to carry out the cleanup. These
terms can include:
• EPA's promise not to sue the PRPs again if
they perform the specified cleanup and
attain the cleanup standards,
• the penalties they will have to pay if they
violate the settlement in the future,
• the process they can use if they believe that
EPA is asking for unreasonable steps beyond
the ROD,
• their legal protection from lawsuits by other
PRPs, and
• the arrangement wherein EPA can
periodically send them a bill for the costs
incurred in overseeing their work.
-------
oversight. Again, if an agreement cannot be reached, then the EPA might issue a unilateral
administrative order (UAO) for the cleanup or work with the Justice Department to seek a judicial order
requiring the cleanup. Over the years, PRPs have commenced more than 70% of the RD/RAs (mostly via
judicial consent decrees).
For sites needing "removal" actions (which generally involve shorter-term cleanups that need to
be started sooner than a remedial action), Agency policy calls for case teams to follow the same
enforcement path where possible. In emergency situations, however, the EPA typically undertakes the
response itself (or at least the initial portion) and then takes enforcement action later for recovery of its
costs. But for some removals (especially the non-time-critical removals), the Agency generally follows a
course of trying to get the PRPs to do the cleanup themselves, preferably via settlement. In the event a
cleanup is a non-time-critical removal, the EPA may initially attempt to negotiate a settlement for a
study known as an Engineering Evaluation/Cost Analysis (EE/CA). As with RI/FS and RD/RA, the Agency
does not negotiate with the PRPs on what the removal will entail or what the cleanup standards will be.
If negotiations for such studies or the physical removal activities appear infeasible or prove
unsuccessful, the Agency may issue a UAO obligating the recipients to perform the activity. The EPA
issues the majority of its UAOs for time-critical removals and non-time-critical removals.
Regardless of what type of response activity (RI/FS, RD/RA, or removal) is the subject of the
EPA's negotiations with the responsible parties, such negotiations are usually conducted in confidential
sessions. Community members may not participate in the negotiations unless everyone agrees to allow
such participation. (One relevant scenario, discussed further below in section VI.b.2, involves meetings
with community members relating to technical issues. But these are not negotiations, but rather
separate discussions focused on explaining technical information and soliciting feedback.) The
confidentiality of statements made during negotiations is a well-established principle of the American
legal system and is intended to promote a thorough and frank discussion of the issues between the
parties in an effort to resolve differences. Confidentiality ensures that offers and counter-offers, made
during negotiations, will not be used by one party against the other in any ensuing litigation. Parties may
be unwilling to negotiate without a guarantee of confidentiality, fearing public disclosure of sensitive
issues that may damage their potential litigation position.
Finally, a common enforcement-related thread for these different types of Superfund response
activities (RI/FS, RD/RA, removal) is EPA's monitoring of compliance by the PRPs after the enforcement
instrument (e.g., AOC, CD, UAO or court injunction) takes effect. The Agency oversees the PRPs'
activities to ensure that they are in compliance with their obligations. This oversight process includes the
PRPs' submittal of draft work plans and other deliverables, the EPA review of such documents, and PRPs'
revisions to incorporate EPA's requested changes.
Background on community engagement in Superfund enforcement: The public can sometimes provide
input to EPA on specific enforcement activities. Some of the steps that the EPA takes to involve
communities in its Superfund enforcement activities are required by statute or regulation. For example,
when the Justice Department submits a Superfund cleanup settlement on the EPA's behalf to a federal
-------
court for the judge's approval, the law requires that the public have an opportunity to review and
comment on the settlement. The steps required by statute or regulation are often sufficient to ensure
robust involvement by the community.
That said, the final compendium will not dwell on what is legally required. Instead, the EPA HQ
will strive to present the Regions with examples of activities that go beyond these requirements. For
example, some types of administrative Superfund settlement agreements are not required to undergo a
public notice-and-comment process before taking effect. Nevertheless, site-specific circumstances have
led several EPA case teams to go beyond the legal minimum and provide communities with
opportunities to provide input on such settlements.
III. Organization of initial compilation
This compilation is organized according to seven different types of Superfund enforcement
activities.
> Section VI.a relates to the EPA's efforts to
search for the parties responsible for the
contamination. It identifies the EPA activities
intended to maximize information from the
public as to the identity of PRPs and their
waste-handling practices.
> Section VI.b relates to the EPA's enforcement
efforts to legally obligate PRPs to conduct
RI/FSs. It identifies multiple relevant Agency
measures, including several intended to
increase community awareness of, and input
to, the EPA's efforts to negotiate settlements
for these studies.
> Section VI.c relates to community engagement with (and awareness of) the EPA's
enforcement efforts to get PRPs legally obligated to design and conduct remedial actions.
Many of the activities discussed in the prior section are equally applicable here.
> Section VI.d relates to the EPA's enforcement efforts to legally obligate PRPs to conduct
removal actions. Given the relatively urgent nature of such actions, any enforcement
associated with such cleanups might not allow for the same degree of public participation
as, for example, enforcement with longer-term remedial actions.
> Section VI.e relates to the EPA's enforcement efforts to recover monies from PRPs for the
government's costs in responding to contaminated sites.
> Section Vl.f relates to enforcement efforts against parties that fail to comply with their
Superfund obligations, such as reporting releases of hazardous substances, conducting
required studies, performing a cleanup, or providing relevant information or access to
property needed for sampling or other cleanup activities.
Different types of Superfund
enforcement activities
1. PRP searches
2. RI/FS enforcement
3. RD/RA enforcement
4. Removal enforcement
5. Enforcement for cost-
recovery only
6. Enforcement for non-
compliance
-------
IV.
Planned scope of the final compendium
The Agency plans to have the final compendium focus on Superfund enforcement involving non-
federal facilities. EPA is addressing community involvement for Superfund federal facility enforcement
separately. In particular, the Agency has been hosting Federal Facility Cleanup Dialogue meetings (with
the most recent meetings held in Arlington, Virginia, on September 21-22, 2011). Similarly, the EPA is
addressing community engagement for RCRA Subtitle C enforcement separately, as part of its overall
effort to promote community involvement in RCRA; see Action #3 of OSWER's CEI. The EPA is also
addressing community engagement for underground storage tank (UST) enforcement separately, as part
of its overall effort for UST; see CEI Action #2. That doesn't mean, however, that the EPA isn't open to
considering activities that have proven successful in one of these other contexts and using them here, or
vice versa.
The final compendium will not directly address CERCLA enforcement for natural resource
damages (NRD). The CERCLA statute authorizes certain federal, state and tribal trustees to seek
damages when natural resources are lost or destroyed. The EPA generally doesn't have jurisdiction to
take such enforcement actions; instead, any Agency role tends to be secondary. For example, some
CERCLA settlements address both cleanup and NRD. In those cases, DOJ represents EPA with respect to
the cleanup and the federal trustee with respect to NRD issues. Granted, any steps that the EPA takes to
involve the public in such settlements might have a secondary effect of raising their awareness of the
NRD issues. The issue of community involvement in such enforcement has been raised separately with
the various trustees,2 and the EPA encourages the trustees to involve the public in such enforcement
where appropriate.
Finally, the compilation generally won't cover CERCLA criminal enforcement, which is not
addressed by OSWER's CEI. The CERCLA statute contains criminal enforcement authorities (see, e.g.,
section 103(d)'s provision for illegal destruction of records) and citizens can sometimes get involved with
such efforts, e.g., by providing information leading to the arrest and conviction of any person for a
CERCLA criminal violation (see section 109(d)) or by providing a victim impact statement as part of any
CERCLA criminal sentencing process.
2 See, e.g., http://www.darrp.noaa.gov/partner/cap/pdf/CAPpubrole.pdf.
-------
V. Focus of the initial compilation
This initial compilation focuses on activities that relate to the enforcement process. Admittedly,
the distinction between the enforcement process and the process of determining specifics about the
response can sometimes get blurry. For example, after RD/RA CD negotiations, the EPA may give the
public an opportunity to review a PRP's draft work plan and provide input on issues that may affect the
residents' quality of life such as the time of day when contaminated soils are excavated and the route
that trucks transporting the soils will take through the neighborhood. Such activities are connected not
only to the enforcement process but also to the process of determining potentially significant details
relating to the implementation of the selected response action. In preparing this compilation, the
Agency has tried to remain mindful of this distinction and to maintain the focus on enforcement-related
aspects.
Additionally, the EPA is aware that several of the ideas described in this enforcement
compilation might also translate into non-enforcement scenarios. For example, the concept of sharing a
PRP's draft deliverables with community representatives is a concept that can be tailored to, and
implemented in, a Fund-lead context (sharing an EPA contractor's draft deliverables with community
representatives). Implementing this idea can raise issues, however, in the PRP-lead context that
wouldn't necessarily arise in the Fund-lead context. The EPA's awareness of these potential overlaps
informs its analyses in other CEI actions, which are aimed more at improving community engagement
for Fund-lead responses (see, e.g., CEI action 1). At the same time, this awareness underlies its effort to
maintain the focus of this compilation on enforcement-related activities.
VI. Possible activities for engaging communities in Superfund enforcement
Below are some activities that the EPA Regions have used to engage communities in the
Superfund enforcement process. Superfund enforcement cases vary greatly and there's no one-size-fits-
all when it comes to activities for involving communities in such cases. For example, for many sites, EPA
can readily identify the parties that caused the contamination; there would not be any need for the
Agency to aggressively solicit information from the public on who may have caused the particular
contamination. Similarly, community members often have nothing directly at stake in an EPA cost-
recovery action; consequently, there wouldn't be any need for the Agency to expend significant
resources in alerting the public to such enforcement actions. The mere fact that the EPA used a
particular technique with success in a specific case does not necessarily mean, however, that it should
use it in other cases. Accordingly, the final compendium will advise case teams to continue exercising
discretion and to consider employing the activities described below only as appropriate given the
specific circumstances of their particular site.
-------
a. Community engagement with PRP searches
Possible activity: Solicit information from the public for the PRP search. One practice that the
EPA has used successfully is for case teams to actively solicit information from the public as to the
identity of PRPs and their waste-handling practices. For
example, for the Operating Industries site, Region 9 placed
advertisements in local newspapers (in English or Spanish,
as appropriate) asking anyone who had ever worked for
certain PRP-companies to call an Agency toll-free number
and provide information on the company's disposal
practices. For the Anodyne Plating site in Florida, Region 4
asked a local reporter who was writing an article about the
site to include a request for former employees to contact
the Agency with any relevant information. In some cases,
the ads are not necessarily focused on former employees or
a specific company, but rather worded more broadly. For
example, Region 9's ad for the San Gabriel Valley site asked
for information from anyone who may have witnessed the disposal of industrial solvents in the area. A
variation of this activity is for EPA to include its request on its webpage for the particular site or for
Regional staff to use other social media to seek such input.
Another variation of this concept is for Agency personnel who conduct community interviews to
ask directly for information relating to PRPs and their waste-handling practices. Such interviews are
typically conducted by EPA's Community Involvement Coordinators (CICs) and usually focus on soliciting
community members' views on the cleanup. However, CICs can (and often do) expand such interviews
to cover PRP-related information in an effort to assist EPA's enforcement personnel. Separately, the
EPA's civil investigators occasionally canvass door to door in order to obtain PRP information. For the
Ottawa Township Flat Glass site, Region 5's investigator conducted a house to house canvass, asking
residents for enforcement-related information.
b. Community engagement with enforcement for RI/FSs
i. Relevant provisions in EPA's Model AOCfor RI/FS (issued in 2004)3:
When the EPA negotiates a settlement agreement for RI/FS, it invariably seeks to include several
provisions relating to community engagement. Two of these provisions take activities contained in
Superfund's primary regulation, the National Contingency Plan (NCP), and make them potentially
binding obligations for the respondents. Paragraph 34.b of EPA's model AOC for RI/FS requires the
respondents, at the EPA's request, to provide information supporting the Agency's community relations
Advertisement: Outreach to the
community
EPA has placed similar ads for many
other sites, including (but not
limited to) the Ottawa Township Flat
Glass site in Illinois, the Camp Perry
Landfill site in Ohio, the Tucson
International Airport site in Arizona,
and the Petroleum Products site in
Florida.
3 See http://www.epa.gov/compliance/resources/policies/cleanup/superfund/rev-aoc-rifs-mod-04-mem.pdf.
-------
plan and to participate in the preparation of such information for dissemination to the public and in
public meetings. This echoes the NCP provision in 40 CFR 300.430(c)(3). Similarly, paragraph 102
requires the respondents, at the EPA's direction, to establish a community information repository near
the site, to house one copy of the site's administrative record. Compare 40 CFR 300.430(c)(2)(iii).
Other model RI/FS AOC provisions reflect the public's rights to certain records or notifications.
For example, while model paragraph 51.b notes the respondents' rights to claim confidentiality as to
certain documents, it also notes that if there is no issue of confidentiality for certain site-related
documents, then the public may be given access to them without further notice to the respondents.
Additionally, if the AOC contains a cost recovery compromise, then the model AOC notes that the EPA is
required to publish notice of the proposed settlement in the Federal Register in order to provide
persons who are not parties to the proposed settlement an opportunity to comment on this component.
(See the optional "Public Comment" section of the model AOC.)
ii. Community engagement activities relating to RI/FS enforcement
Possible activity: Require PRPs to assist with EPA's community involvement efforts. One possible
option is for case teams to invoke the provisions described above that require the PRPs to assist with
EPA's community involvement efforts. Doing so can help CICs to leverage their own limited resources.
Region 10 relied on such a provision in the RI/FS AOC for the Lower Duwamish Waterway site to obtain
the PRPs' assistance in reaching diverse communities.
Possible activity: Issue site-specific fact sheets that explain the settlement negotiations. Another
idea is for case teams to consider issuing site-specific fact sheets about the settlement negotiations
themselves in order to "de-mystify" the enforcement process for the public. Region 5 issued a fact sheet
several years ago for its settlement negotiations with Dow Chemical for the RI/FS and removal at the
Midland site.4 In that case, some community members were concerned that EPA might negotiate the
cleanup standard with the PRP behind closed doors. Region 5's fact sheet explained in general terms
what topics would be covered by the settlement negotiations and, more importantly, what topics would
not be covered. This helped to reassure the community that cleanup standards would not be a topic of
negotiation.
Possible activity: Distribute generic fact sheet on the Superfund enforcement process (and/or
present generic workshop on Superfund). One simple variation of the concept above is to make a
generic fact sheet about Superfund enforcement available to a particular community. The EPA HQ has
previously issued a generic fact sheet titled, "The Superfund Enforcement Process: How It Works"
(August 1988).5 CICs can make hard-copies of this fact sheet, along with the other general background
4 See June 2009 fact sheet at the site's webpage at www.epa.gov/region5/cleanup/dowchemical.
5 See http://www.epa.gov/compliance/resources/policies/cleanup/superfund/fs-howitworks-rpt.pdf. Pursuant to
CEI action 5D, EPA plans to slightly revise this fact sheet (e.g., to emphasize that EPA does not negotiate remedies
with PRPs).
-------
materials on the Superfund program, available for community members at any public meetings the EPA
holds before and during the negotiations. Another variation is for the EPA to present a generic workshop
that explains the basics of the Superfund program (including the enforcement components) to an
interested community. The EPA HQ has previously developed materials for such a presentation, titled,
"Introduction to Superfund: A Public Awareness Workshop."6
Possible activity: Provide opportunity for public comment on administrative settlements for
RI/FS. Another possible option is to give the public an opportunity to comment on an AOC for RI/FS
before it goes into effect even if it does not contain a cost-recovery compromise. To date, the EPA has
done this only in very rare situations (primarily because of the potential for delay in initiating the RI/FS).
Region 5 did this in the Dow Midland case; after the PRPs had signed the administrative agreement (but
before EPA signed it), the Region solicited public comment on the proposed settlement. Under the
statute, the EPA is required to take public comment only on RI/FS AOCs that include a compromise of an
EPA cost-recovery claim. Even in that rare scenario, given section 122(i)'s focus on cost-recovery
compromises, the EPA's model AOC for RI/FS advises case teams to invite comment only on the cost-
recovery compromise element and not on other aspects of the proposed AOC (e.g., the proposed scope
of the RI/FS).
Possible activity: Put the RI/FS settlement ir
comment. A variation of the concept above would
be to put the RI/FS settlement agreement in the
form of a judicial consent decree, which necessarily
goes through a public comment process and a
review by an independent third party (i.e., the
district court judge), rather than in the form of an
administrative agreement. To date, the EPA has
done this in only rare situations (given the
additional time and resources that this activity
usually requires). It can be useful in situations
where the community mistrusts the EPA and needs
significant assurance that the Agency and the PRPs
have negotiated at arms' length.
Possible activity: Explicitly reserve EPA's
right to request modifications to an administrative
agreement in light of later public comments. Yet
another variation of this idea is for the EPA to
a consent decree to allow opportunity for public
Examples of RI/FS consent decrees: In the
Anniston PCBs Superfund case, Region 4
negotiated with Pharmacia Corporation
and Solutia Inc. for a consent decree that
covered RI/FS and removal activities. The
public submitted comments on the
proposed decree. The Region and DOJ
reviewed and considered the comments
and revised the decree accordingly. The
district court subsequently undertook its
own independent review of the decree
before ultimately approving it. Other case
teams have also done this; Region 7, e.g.,
recently negotiated an RI/FS consent
decree with U.S. Borax, Inc. for the Armour
Road site.
6 The workshop materials, which were developed by EPA's Office of Emergency and Remedial Response in 1995,
are not currently available online.
-------
explicitly reserve its right to seek modifications to the final AOC in the event that, during the subsequent
public comment period, it receives public comments that disclose facts or considerations which indicate
that the AOC is inappropriate, improper, or inadequate.7 This is what Region 4 did in its 2009
administrative settlement with the Tennessee Valley Authority (TVA) for the coal ash release in
Kingston, Tennessee. While the Region wanted to expedite TVA's response, it also wanted to extend the
opportunity for the public to provide input. Accordingly, in order not to delay the PRP's initiation of
response activities, the EPA finalized the AOC but explicitly reserved its right to seek modifications later
based on input it received during the public comment period. Similar to above, it has been unusual for
EPA to obtain such settlement language.
Possible activity: Conduct outreach to solicit public input on proposed settlements. Another
measure that was employed in the Dow Midland case involved Region 5's heightened efforts to solicit
public input on the proposed settlement. In public meetings and on the site's webpage, the Region
repeatedly notified the public of the opportunity to provide comments. As a result, the Agency
subsequently received public comments on virtually every aspect of the proposed settlement, including
provisions that rarely draw public comment such as stipulated penalties and the conclusions of law and
findings of fact.
Possible activity: Have the Community Involvement Plan reviewed by the Regional attorney.
Another possible option is to increase awareness among the Region's community involvement
personnel and technical staff about PRP obligations to provide assistance with the EPA's community
involvement activities. PRPs are typically obligated by an enforcement instrument to provide such
assistance, subject to the EPA's discretion and oversight. Such obligations should be discussed in the
Agency's Community Involvement Plan (CIP), which the EPA is required, to the extent practicable, to
have in place before remedial investigation field activities start. (See 40 CFR 300.430(c)(2).) Regional
attorneys are familiar with the legal provisions that require PRPs to assist with community involvement
activities. Thus, they are well-positioned to review draft CIPs and help Regional program personnel
identify opportunities for PRP involvement and reassure such personnel that the PRPs' activities will be
subject to the EPA direction.
Possible activity: Make draft deliverables submitted by PRPs available to the public. Another
concept is to make more documents stemming from Superfund enforcement available to the public.
This includes, e.g., draft RI/FS work plans and other deliverables submitted by PRPs. The EPA already has
7 This is different than the provision in the model AOC for RI/FS, which provides (in paragraph 103, the Effective
Date and Subsequent Modification section) that if the settlement includes a cost recovery compromise, then the
AOC doesn't take effect until EPA notifies the Respondents that the public comments (if any) received do not
require the Agency to modify the order or withdraw from it. The model AOC also provides (paragraph 104) that
the order may be amended by mutual agreement of EPA and the Respondents.
10
-------
a policy encouraging this activity.8 Moreover, this idea builds on the pilot projects that the Regions
conducted in 1995 as part of the EPA's administrative reform aimed at increasing community
involvement in the Superfund enforcement process.9 Many of those pilot projects resulted in the EPA
taking the draft remedial design work plans it received from the PRPs and sharing them with the public.
One project involved giving community representatives an opportunity to review draft treatability study
documents prepared by PRPs.
The EPA is piloting a new web-based tool that provides information to the public on the next
planned activity at a given Superfund site. The new tool is currently in use in three EPA regions, with
expansion to three or more additional regions planned by the end of 3rd quarter fiscal year 2013. An
example of the new information available to the public can be seen on the Site Progress Profile for the
Davis Liquid Site in Smithfield, Rhode Island:
http://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?id=0101283 (scroll down to "Next Activities"
and see that the PRP-lead RD for the groundwater cleanup is scheduled to be completed in September
2013).
Possible activity: Facilitate the process of making enforcement-related information available.
There are other techniques for improving public access to enforcement-related information from the
outset. The EPA could, e.g., routinely add relevant documents to the "site file" (which is broader than
the site's administrative record on its response selection). To boost transparency, case teams could also
post site documents in Regional online Freedom of Information Act (FOIA) "reading rooms."10
Additionally, in filed cases where the EPA faces discovery requests, the Agency could exercise restraint
when considering whether to invoke the deliberative process privilege.11 The EPA personnel are directed
to exercise similar restraint on invoking exemptions when facing FOIA requests. Specifically, per Justice
Department guidance12, EPA offices should exercise their discretion in favor of disclosing documents
whenever possible under FOIA. In sum, such transparent practices can lead to increased public access to
Superfund enforcement-related information.
8 See pages H-24 and H-25 of EPA's November 1990 policy encouraging Regions to make Superfund documents
more available to the public, at http://www.epa.gov/superfund/community/cag/pdfs/directives/public_docs.pdf.
This policy applies to Fund-lead response actions as well, but this effort focuses on PRP-lead responses.
9 See www.epa.gov/superfund/programs/reforms/reforms/2-6.htm.
10 See, e.g., Region 4's FOIA electronic reading room:
http://www.epa.gov/region4/foiapgs/readingroom/index.htm.
11 Memorandum from Administrator William D. Ruckelshaus, "Guidance for Assertion of Deliberative Process
Privilege" (October 3,1984): "... [I]t is EPA policy that the Agency will not assert the [deliberative process] privilege
in every case where it applies. The Agency has a responsibility to the public to provide the relevant facts which
underlie a particular policy. This responsibility suggests that we disclose data and the reasons supporting a policy
on occasion which might otherwise fall within the scope of the privilege..."
12 U.S. Attorney General Eric Holder memorandum (3/19/2009) transmitting new FOIA guidelines.
11
-------
Possible activity: Meet with the public about technical issues while confidential settlement
negotiations are ongoing. Another possibility, one arising during settlement negotiations, is to allow
community members to participate in sessions that focus on the cleanup's technical issues. As discussed
above, the EPA usually conducts negotiations with PRPs in confidential sessions. The two sides can,
however, agree to meet with the public on technical issues while negotiations are ongoing. Specifically,
the relevant NCP provision states: "The lead agency may conduct technical discussions involving PRPs
and the public. These technical discussions may be held separately from, but contemporaneously with,
the negotiations/settlement discussions." (40 CFR 300.430(c)(4).) This activity can be a valuable
opportunity to engage the community on cleanup implementation issues that are of large significance to
them.
Possible activity: Remind the public that PRP activities are subject to EPA oversight and
approval. Another measure can be to ensure that the EPA's periodic fact sheets about ongoing response
activity note that the Agency is overseeing the PRPs' activities to ensure correct performance. This issue
arose at the Ringwood Mines/Landfill site in New Jersey where residents expressed concern as to
whether the EPA was ensuring that the PRP was adequately performing the response.13 Region 2
subsequently increased its communications with the residents about its various efforts to oversee the
PRP's site activities (including, e.g., information about the EPA's reviews of PRP-submitted plans and
changes to such plans as the result of the Agency's reviews).
Possible activity: Include a technical assistance plan as a provision of the settlement. Finally,
another practice can be the inclusion of settlement provisions calling for a Technical Assistance Plan
(TAP).14 Such provisions are required for settlements using the Superfund Alternative Approach, which
typically is employed first at the RI/FS stage. A TAP provision in a settlement obligates the PRPs, at the
EPA's request, to arrange at their own expense for a
community group to obtain the services of an
independent technical advisor and share information
with others in the community. The EPA has secured
TAP provisions in approximately sixty settlements to
date (mostly AOCs for RI/FS), and more than a dozen
have been triggered thus far. Pursuant to the EPA
oversight, the responsible parties have arranged for
these communities to receive more than $1 million in
independent technical assistance and information-
sharing resources.
13 OIG Report 2007-P-00016, "Environmental Justice Concerns and Communication Problems Complicated
Cleaning Up Ringwood Mines/Landfill Site" (April 2, 2007), page 8.
14
EPA's interim guidance on TAPs, which is dated September 3, 2009, is available at:
http://www.epa.gov/compliance/resources/policies/cleanup/superfund/interim-tap-sf-settle-mem.pdf.
Jacksonville Ash Superfund site TAP
Pursuant to a TAP provision in a 2008
consent decree for RD/RA, the PRP is
providing $200,000 to enable several
community groups to obtain assistance
from their own independent technical
advisors.
-------
TAPs perform the same functions as the EPA's Technical Assistance Grants (TAGs), namely
providing resources for community groups to obtain technical assistance and to facilitate
communication with other community members, respectively. TAPs and TAGs generally rely on the
same or similar criteria for which community groups can be eligible, which activities are covered (e.g.,
review of technical documents), which expenditures are not covered (e.g., litigation, political lobbying),
etc. There can, however, be differences between the two. For example, while Community Advisory
Groups (CAGs) are typically ineligible to receive TAGs, they might (depending on the circumstances) be
eligible to receive a TAP. (See, e.g., the TAP that the Roane County CAG received for the TVA Kingston
site in Region 4.) In addition, TAPs typically have the potential to reduce the administrative burden
facing interested community groups. For example, unlike with TAGs, a TAP may not necessarily require a
community group to incorporate.
c. Community engagement with enforcement for RD/RA
i. Relevant provisions in EPA's model CD for RD/RA (issued 2011)15
Similar to the model AOC for RI/FS, EPA's model consent decree for RD/RA contains a provision
obligating settling defendants to assist with community involvement if requested by the EPA. It also
contains several other provisions relevant to community engagement. See the Appendix for the exact
language of these provisions.
ii. Community engagement activities relating to RD/RA enforcement
Many of the possible activities discussed in the RI/FS-enforcement section above are also
potentially applicable to RD/RA enforcement:
Invoke CD/UAO provisions that obligate PRPs to assist the EPA with its community
involvement efforts
Issue fact sheets about the RD/RA negotiations themselves
During RD/RA decree negotiations, invite the public to attend separate concurrent sessions
and discuss technical issues (per 40 CFR 300.430(c)(4))
Conduct outreach to alert community members to their opportunity to provide comments
on an RD/RA decree after it is lodged with the court (and before the U.S. seeks the judge's
approval)
In the pre-RD review of the existing Community Involvement Plan, ensure that it discusses
PRP obligations to provide assistance with community involvement activities (subject to EPA
oversight)
Make more documents stemming from RD/RA enforcement (e.g., deliverables submitted by
PRPs) available to the public
15 See http://www.epa.gov/compliance/resources/policies/cleanup/superfund/rdra-2012-amd.pdf.
13
-------
Ensure that EPA's fact sheets about ongoing RD/RA activity note that the Agency is
overseeing the PRPs' activities to ensure that they are being performed correctly
Include provisions for Technical Assistance Plans in RD/RA consent decrees, especially those
using the Superfund Alternative Approach.
Possible activity: Conduct additional outreach to alert public to proposed settlements. The Superfund
law requires the Justice Department to provide an
opportunity for the public to comment on an RD/RA
consent decree before the court enters it as a final
judgment. (CERCLA § 122(d)(2)(B).) This is effectuated via a
notice in the Federal Register. (See 40 CFR 300.430(c)(5)(ii)
and 28 CFR 50.7.) The EPA occasionally goes further and
(either alone or jointly with the Justice Department) issues
a press release when the CD is submitted to the court for its
review. For example, Region 1 routinely issues a press
release whenever DOJ lodges an RD/RA CD with the court
on its behalf.16 Such press releases can sometimes be more
effective than a Federal Register notice in reaching
community members affected by the settlement.
Possible activity: As in the RI/FS stage, have the
Regional attorney review the Community Involvement Plan.
The Regional attorney will be familiar with the requirements of the community involvement activities
required at this stage of the cleanup and may be able to facilitate additional community engagement
efforts. The NCP requires EPA to re-visit the existing Community Involvement Plan prior to initiating the
remedial design and "determine whether it should be revised to describe further public involvement
activities during RD/RA that were not already addressed" by the CIP. (40 CFR 300.435(c).) In this context,
one idea is to have Regional attorneys participate in this review in order to help, e.g., in identifying
opportunities for PRP involvement (subject to EPA oversight) in community involvement activities.
Outreach to EJ Communities
Especially for EJ communities, the
EPA should consider how best to
alert the public (e.g., by outreach to
tribes or local churches). This is true
for many of the options in this
compilation — while the activity
might be applicable for both EJ and
non-EJ communities, the EPA
should consider whether a
particular activity ought to be
implemented differently in an EJ
community.
16 See, e.g., the press release that Region 1 issued to alert the public of the opportunity to review and comment on
the RD/RA consent decree lodged for the Blackburn & Union site.
http://yosemite.epa.gov/opa/admpress.nsf/6d651d23f5a91b768525735900400c28/f93be493b6f86ee28525776e0
06f605e!0pen Document.
-------
d. Community engagement with enforcement for removals
i. Relevant provisions in EPA's model administrative order on consent (AOC) for
removal (issued 2007)17
EPA's model administrative settlement agreement and order on consent for removal contains
several provisions relating to community engagement. These reflect what is legally required or provided.
For example, if the agreement contains a cost recovery compromise, then the EPA is required to publish
notice of the proposed settlement in the Federal Register to provide persons who are not parties to the
proposed settlement an opportunity to comment on this component. (See model paragraph 82.) In
addition, model paragraph 26 notes that certain site documents may be made available to the public
without further notice to the Respondents if they don't assert any rights of confidentiality.
ii. Community engagement activities relating to removal enforcement
Similar to above, some of the possible activities discussed in the RI/FS-enforcement section are
also potentially applicable to removal enforcement. These include:
Solicit public input on the proposed AOC before and/or during removal settlement
negotiations
Give the public an opportunity to comment on a removal AOC before it goes into effect
Put the removal settlement agreement in the form of a judicial consent decree, rather than
in an AOC
Ensure that the Community Involvement Plan includes a discussion of PRP obligations to
provide assistance with community involvement activities (subject to the EPA oversight)
Make more documents stemming from enforcement (e.g., draft deliverables submitted by
PRPs) available to the public
During negotiations, allow community members to participate in separate concurrent
sessions focused on technical issues (consistent with 40 CFR 300.430(c)(4))
Ensure that the EPA's fact sheets note that the Agency is overseeing the PRPs' activities to
ensure that they are being performed correctly.
Possible activity: Provide opportunity for public comment on administrative settlement for
removal. An example of soliciting public input on a proposed removal AOC occurred during Region l's
negotiations with Aerovox Corporation for a non-time-critical removal (demolition of a vacant
contaminated building) at a site in New Bedford MA. The case team worked with the PRP to seek input
from the community on its concerns. Residents provided a wide range of input.
One of the community's concerns related to the risk of fire as a result of vandals seeking to
salvage copper piping from the building. The PRP responded by voluntarily providing site security before
the AOC was finalized. Community members also expressed concern about the risk of fire associated
17 See http://www.epa.gov/compliance/resources/policies/cleanup/superfund/rev-aoc-remove-mem.pdf.
-------
with the planned demolition (and the need for an evacuation plan). The EPA and the PRP addressed this
concern as well. The EPA and the PRP also reached out and met with representatives from two industrial
facilities that abutted the site. Like the residents, these businesses also had concerns, e.g., about the
dust and potential airborne contaminants that the demolition would cause. They provided information
about their respective workforces and the timings of the different shifts. The Region and the PRP
considered these concerns and agreed to stringent standards for air monitoring and management of
water runoff as part of the AOC that was finalized in April 2010.
As noted above, another possible idea might be to provide an opportunity for public review and
comment on a Superfund removal settlement before it takes effect. To date, the EPA has done this only
rarely. In the Dow Midland case, the administrative settlement that Region 5 negotiated with the PRP
covered both RI/FS activities and removal activities. The
Region went beyond the legal requirement and solicited
public comment on the proposed agreement before
deciding whether to sign it.
Possible activity: Put the removal settlement in a
consent decree to allow opportunity for public comment. A
variation of this concept is to put the removal settlement
agreement in the form of a judicial consent decree, which
necessarily goes through a review by the public and the
district court, rather than in the form of an administrative
agreement. Region 10 did this in the Coeur d'Alene Basin
case, negotiating a removal consent decree with Union
Pacific Railroad. The public submitted numerous comments
on the proposed decree. Region 10 reviewed and
considered the comments before the district court
ultimately approved the decree in 2000.18
Possible activity: Have the Community Involvement Plan reviewed by the Regional attorney. For
longer-term removal actions, EPA is required to prepare a community involvement plan (CIP). (40 CFR
300.415(n)(3),(4).) Similar to RI/FS and RD/RA, one activity is to ensure that such CIPs discuss PRP
obligations to provide assistance with EPA's community involvement activities. This may be potentially
facilitated by having Regional attorneys review the draft CIP and help in identifying opportunities for
PRP involvement subject to EPA direction.
18 "Cleaning Up at the Tracks: Superfund Meets Rails-to-Trails," Clifford J. Villa, 25 Harv. Envtl. L Rev. 481, 531-
533 (2001). While a majority of commenters expressed support for the proposed consent decree, one group
(Citizens Against Rails-to-Trails, "CART") expressed strong opposition. Its objections essentially related, however, to
the substance of the EPA's removal selection decision (which had previously undergone a separate notice-and-
comment process), not the proposed decree itself.
Examples of use of consent decrees
for removal actions
Region 4 also did this for a settlement
involving RI/FS and removal activities
at the Anniston PCBs site. Other case
teams have also done this. See, e.g.,
Region 6's consent decree in 2010
obligating ConocoPhillips Company
and Sasol North America, Inc. to
conduct a removal for the Bayou
Verdine site in Louisiana. See also
Region 7's consent decree with the
Blue Tee Corporation in 2007 for a
removal at the Newton County Mine
Tailings site.
-------
e. Community engagement with enforcement for cost-recovery only
Over the years, the conventional wisdom has been that community interest in this type of
enforcement (and, hence, the need for the EPA measures to engage the public) was relatively minimal.
Cost-recovery enforcement tends to focus on how much of the cleanup costs should be borne by the
PRPs and how much should be borne by the EPA. It was presumed that the public is primarily interested
in the cleanup itself and how it was implemented (e.g., schedule, specific methods) and that cost-
recovery enforcement didn't affect those concerns. Accordingly, over the years, the EPA hasn't
emphasized community involvement with cost-recovery enforcement.
In recent years, however, the EPA has faced significant community concern with several
bankruptcy settlements that were for cost-recovery only and with other cashout settlements where
response activities remained to be performed. Given the limited Superfund Trust Fund monies available
to the EPA, some community members have expressed interest in whether such settlements ensure that
sufficient monies will be available to carry out the response actions in the future. The EPA has
increasingly realized that cost-recovery settlements can have a significant impact on when response
activities will occur in the future (and at what pace). Thus, one possible activity is for the EPA to provide
interested communities with information about cost-recovery enforcement and the resultant resources
(PRP and/or the EPA) available for future response activities. For example, for the Libby Asbestos site,
Region 8 provided information to the community about its future plans for using the monies it received
from the W.R. Grace bankruptcy settlement.19
f. Community engagement with enforcement for Superfund noncompliance
Sometimes a party may fail to comply with a Superfund-related obligation. For example, it might
not report a release of hazardous substances, or it may fail to conduct studies or cleanups required by a
UAO. It may balk at an Agency request for relevant information or access to property needed for
sampling or other cleanup activities. Such noncompliance can give rise to claims for CERCLA statutory
penalties. In negotiating a settlement for such penalty claims, the EPA can sometimes negotiate a
provision for a Supplemental Environmental Project (SEP). One activity is for the Agency and the violator
to seek public input on possible SEPs. The EPA has a policy encouraging such outreach.20
The EPA case teams often negotiate SEPs in settlements of Superfund penalty cases and typically
consider community concerns when doing so. It is not uncommon, e.g., for the Agency to include a SEP
provision in a settlement of a CERCLA § 103 reporting violation21 — and to consider community
19 See the FAQ at http://www.epa.gov/region8/superfund/libby/askepa.html.
20 Interim Guidance for Community Involvement in SEPs, 68 FR 35584 (6/17/2003) at
http://www.epa.gov/compliance/resources/policies/civil/seps/sepcomm2003-intrm.pdf.
21 Information about specific CERCLA SEPs can be found in the Enforcement Compliance History Online ("ECHO")
at http://www.epa-echo.gov/cgi-bin/ideaotis.cgi. A search of ECHO shows that EPA has included SEPs in more than
150 settlements resolving CERCLA section 103 reporting violations in recent years.
-------
concerns when negotiating such a provision. Similarly, the EPA has often considered community input in
SEPs stemming from other types of Superfund enforcement. For example, Region 3 relied on community
input in crafting the SEP provision of the settlement resolving a Superfund penalty claim for a violation
involving the cleanup of the Centre County Kepone site.22 Similarly, Region 9 took the concerns of the
local municipality and others into account when negotiating a SEP provision worth $1 million in a 2006
settlement with several PRPs for their violation of a Superfund UAO covering the cleanup of the
Phoenix-Goodyear Airport site.23 Region 8 took community concerns into account when it negotiated
the largest public-health SEP in the Agency's history in the Superfund case against W.R. Grace for its
refusal to provide access to property needed for the Libby Asbestos site cleanup.24
Another possibility might be for the Agency to pro-actively invite the public to submit ideas for
possible projects before any noncompliance has occurred. The EPA can then consider those ideas as
SEPs in the future if noncompliance occurs. Region 3 did this for the Elizabeth River watershed,
compiling project ideas from the public upfront. It subsequently incorporated one of the ideas into a
settlement (albeit as a provision of a criminal plea agreement and not as a SEP in a Superfund civil
enforcement action).
The Superfund law authorizes any person to bring a civil enforcement action against any person
who is allegedly in violation of any Superfund requirement, order, etc. (See CERCLA § 310(a)(1).) Such
actions can augment the EPA's enforcement efforts and/or highlight certain violations for EPA's
attention.25 For example, section 310(a)(1) citizen suits, by residents and others for alleged violations of
the reporting requirements under CERCLA sections 103 or 111(g), have supplemented the Agency's own
efforts to enforce these provisions.26 On occasion, parties have also brought section 310(a)(1) citizen
22 67 Fed. Reg. 54463 (August 22, 2002).
23 See www.epa.gov/region09/enforcement/results/06/highlights.html.
24 66 Fed. Reg. 56859 (November 13, 2001).
25 One court described the purpose of the CERCLA citizen suit provision as follows: "... The purpose of section 310
is not to reimburse citizens for out-of-pocket expenses, but to prod government agencies into vigorously enforcing
CERCLA and to allow private actions to compel compliance when the EPA and state still fail to act. While section
107 concerns liability and compensation for pollution, section 310 is aimed at coercing governmental enforcement
of hazardous waste laws." Regan v. Cherry Corp., 706 F.Supp. 145,149 (D.R.I. 1989).
26 Some of these citizen-suits are noted in reported caselaw. See, e.g., Citizens Against Pollution v. Ohio Power
Co., 65 ERC 1374 (S.D. Ohio 2007), Sierra Club v. Tyson Foods Inc., 58 ERC 1076 (W.D. Ky. 2003), Fried v. Sungard
Recovery Serv., Inc., 900 F.Supp. 758 (E.D. Penn. 1995), Pape v. Menominee Paper Co., 911 F.Supp. 273 (W.D. Mich.
1994), City of Toledo v. Beazer Materials and Services, Inc., 833 F.Supp. 646 (N.D. Ohio 1993), Heart of America
Northwest v. Westinghouse Hanford Co., 820 F.Supp. 1265 (E.D. Wash. 1993), Martin v. Kansas Board of Regents,
32 ERC 1944 (D. Kan. 1991), and Lutz v. Chromatex, Inc., 718 F.Supp. 413 (M.D. Pa. 1989).
-------
suits for alleged violations of cleanup-related orders or settlements.27 For example, at the Upper
Columbia River site, Region 10 unilaterally issued an order under Superfund obligating a PRP to conduct
studies of the contamination in the Lake Roosevelt area. Several parties subsequently brought a citizen
suit alleging that the UAO recipient was violating this Agency order.28 This citizen suit contributed to EPA
later reaching a settlement agreement with the party to conduct the requisite studies.29 There have
been several other section 310(a)(1) citizen suits alleging violations of cleanup settlements/orders.30
In addition to CERCLA citizen suits, there are also instances where a non-Superfund citizen suit
may benefit the EPA's Superfund program by triggering additional CERCLA cleanup. For example, one
recent citizen suit under the Resource Conservation and Recovery Act led the EPA to subsequently
negotiate a Superfund administrative settlement obligating the PRP to conduct multiple removal
actions. (See River Village West v. Peoples Gas, 618 F.Supp.2d 847 (N.D. III. 2008).)
In part to assist potential citizen-suit plaintiffs, the EPA is required to make any records, reports
or information obtained pursuant to CERCLA § 104 available, unless such information constitutes
confidential business information (CBI). (See CERCLA § 104(e)(7)(A).) As discussed earlier, the more
transparent the EPA is from the beginning of the Superfund process, the more information that will
already be available to community members (including potential citizen-suit plaintiffs).
VII. Conclusions and next steps
The EPA has preliminarily identified a number of possible activities for engaging communities in
Superfund enforcement. At this point, the Agency seeks input from external stakeholders (including
communities, PRPs, and state, tribal and local governments) about these ideas and any others that
might prove beneficial. Please submit comments to sf-enforcement-community-engagement@epa.gov.
The EPA is especially interested in feedback on whether inclusion of these ideas in a final Agency
document might unduly raise public expectations and, if so, how to avoid that. In developing this
preliminary compilation, several Agency reviewers expressed strong concern that members of the public
might insist that the EPA employ certain activities in their communities even though it would not be
appropriate to do so. As stated earlier, Superfund enforcement cases vary greatly and there is no one-
27 Such suits must, however, satisfy the requirements of CERCLA section 113(h), which limits courts' jurisdiction to
consider certain types of suits.
28 See Pakootas v. Teck Cominco Metals Ltd., No. CV04256AAM (E.D. Wash., Nov. 8, 2004), 2004 WL 2578982.
29 See Pakootas v. Teck Cominco Metals Ltd., 62 ERC 1705 (9th Cir. 2006).
30 For example, several individuals brought a 310(a)(1) citizen suit against a metal plating facility for its
noncompliance with a CERCLA removal settlement that had been negotiated with EPA. States v. BFG
Electroplating and Mfg. Co., 31 ERC 1174 (W.D. Pa. 1989). See also M.R. (VegaAlta), Inc. v. Caribe General Electric
Products, Inc., 31 F.Supp.2d 226 (D.P.R. 1998) (CERCLA 310(a)(1) citizen suit alleging noncompliance with a CERCLA
RD/RA UAO).
19
-------
size-fits-all when it comes to activities for involving communities in such cases. Case teams have
discretion on whether to use certain measures, depending on the circumstances of their specific site.
Some EPA reviewers indicated that Headquarters ought to consider spelling out the circumstances for
when it would be appropriate to use select activities, particularly the activities that would likely
necessitate the Agency spending considerable resources to effectuate and result in some delay at least
in the short term. The EPA is interested in whether external stakeholders believe that such
circumstances should be described and detailed.
Disclaimer: Neither this preliminary compilation nor the forthcoming final compendium is a rule and
neither creates any legal obligations or enforceable rights. They may not be relied upon to create a right
or benefit, substantive or procedural, enforceable at law or in equity, by any person. Whether and how
the EPA applies the information in this compilation or the final compilation to any particular site will
depend on the facts posed by the site. The EPA decision makers retain the discretion to adopt
approaches that differ from the discussion in this compilation and the final compilation, where
appropriate, on a case-by-case basis and in accordance with the statute and regulations. This document
does not affect determinations of Superfund liability and does not provide any relief from or limitation
of liability.
20
-------
Appendix
Relevant excerpts from model Consent Decree for Remedial Design/Remedial Action (RD/RA CD)
The most relevant portion of the model decree is likely Section XXX (and related language in
Section X). Model section XXX is consistent with the NCP provision allowing PRPs to participate in the
aspects of the community relations program at the discretion of, and with oversight by, EPA (see 40 CFR
300.430(c)(3)).
Model section XXX provides as follows:
"COMMUNITY INVOLVEMENT
128. If requested by EPA [or the State], Settling Defendants shall participate in community
involvement activities pursuant to the Community Involvement Plan to be developed by EPA.
EPA will determine the appropriate role for Settling Defendants under the Plan. Settling
Defendants shall also cooperate with EPA [and the State] in providing information regarding the
Work to the public. As requested by EPA [or the State], Settling Defendants shall participate in
the preparation of such information for dissemination to the public and in public meetings that
may be held or sponsored by EPA [or the State] to explain activities at or relating to the Site.
Costs incurred by the United States under this Section, including the costs of any technical
assistance grant under Section 117(e) of CERCLA, 42 U.S.C. § 9617(e), shall be considered Future
Response Costs that Settling Defendants shall pay pursuant to Section XVI (Payments for
Response Costs)."
Model section X covers Reporting Requirements. It requires the Settling Defendants to submit
to EPA and the State written [monthly] progress reports. Such reports must "describe all activities
undertaken in support of the Community Involvement Plan during the previous [month] and those to be
undertaken in the next [six weeks]."
Note that Model section XXX's bracketed references above to "State" are optional and intended
for decrees where the State is a signatory party or when otherwise appropriate (e.g., given the degree of
State involvement in the case).
Finally, model section XXX also contains language for a provision for a Technical Assistance Plan
("TAP"), which is generally required for any settlement using the Superfund Alternative Approach. (See
discussion of TAPs in sections Vl.b.ii and Vl.c.ii of the compilation.)
Another significant provision in the model relates to the statutorily-required opportunity for the
public to review and comment on a consent decree before the district court judge decides whether to
approve it.
Model section XXXII provides as follows:
"LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
132. This Consent Decree shall be lodged with the Court for a period of not less than 30 days for
public notice and comment in accordance with Section 122(d)(2) of CERCLA, 42 U.S.C.
§ 9622(d)(2), and 28 C.F.R. § 50.7. The United States reserves the right to withdraw or withhold
its consent if the comments regarding the Consent Decree disclose facts or considerations that
-------
Appendix A: Relevant excerpts of Model RD/RA CD
indicate that the Consent Decree is inappropriate, improper, or inadequate. Settling Defendants
consent to the entry of this Consent Decree without further notice.
133. If for any reason the Court should decline to approve this Consent Decree in the form
presented, this agreement is voidable at the sole discretion of any Party and the terms of the
agreement may not be used as evidence in any litigation between the Parties."
Note that EPA must go further and offer to provide a public meeting regarding the decree (and
hold such a meeting if requested) if the United States' Covenant for the Settling Defendants (or the
Covenant for Settling Federal Agencies in decrees that have such agencies) includes a covenant for RCRA
section 7003 liability. See the model's note for paragraph 94.
Another provision of the model decree that relates to community engagement is Section VII
("Remedy Review"), which acknowledges the public's statutorily-required right to an opportunity to
comment on any further response actions proposed by EPA as a result of a five-year review. Specifically,
the model section provides:
"REMEDY REVIEW
17. ...
18. ...
19. Opportunity to Comment. Settling Defendants and, if required by Sections 113(k)(2)
or 117 of CERCLA, 42 U.S.C. § 9613(k)(2) or 9617, the public, will be provided with an opportunity
to comment on any further response actions proposed by EPA as a result of the review conducted
pursuant to Section 121(c) of CERCLA and to submit written comments for the record during the
comment period."
Finally, another model CD provision that is potentially significant to community engagement is
Section XXV, which covers "Access to Information."
"ACCESS TO INFORMATION
118. Settling Defendants shall provide to EPA [and the State], upon request, copies of all records,
reports, documents, and other information (including records, reports, documents, and other
information in electronic form) (hereinafter referred to as "Records") within their possession or
control or that of their contractors or agents relating to activities at the Site or to the
implementation of this Consent Decree, including, but not limited to, sampling, analysis, chain of
custody records, manifests, trucking logs, receipts, reports, sample traffic routing,
correspondence, or other documents or information regarding the Work. Settling Defendants
shall also make available to EPA [and the State], for purposes of investigation, information
gathering, or testimony, their employees, agents, or representatives with knowledge of relevant
facts concerning the performance of the Work.
119. Business Confidential and Privileged Documents
a. Settling Defendants may assert business confidentiality claims covering part or all of
the Records submitted to Plaintiff[s] under this Consent Decree to the extent permitted by
and in accordance with Section 104(e)(7) of CERCLA, 42 U.S.C. § 9604(e)(7), and 40 C.F.R.
§ 2.203(b). Records determined to be confidential by EPA will be afforded the protection
-------
Appendix A: Relevant excerpts of Model RD/RA CD
specified in 40 C.F.R. Part 2, Subpart B. If no claim of confidentiality accompanies Records
when they are submitted to EPA [and the State], or if EPA has notified Settling
Defendants that the Records are not confidential under the standards of Section 104(e)(7)
ofCERCLA or 40 C.F.R. Part 2, Subpart B, the public may be given access to such Records
without further notice to Settling Defendants.
b. Settling Defendants may assert that certain Records are privileged under the attorney-
client privilege or any other privilege recognized by federal law. If Settling Defendants
assert such a privilege in lieu of providing Records, they shall provide Plaintiff[s] with the
following: (1) the title of the Record; (2) the date of the Record; (3) the name, title,
affiliation (e.g., company or firm), and address of the author of the Record; (4) the name
and title of each addressee and recipient; (5) a description of the contents of the Record;
and (6) the privilege asserted by Settling Defendants. If a claim of privilege applies only
to a portion of a Record, the Record shall be provided to the United States in redacted
form to mask the privileged portion only. Settling Defendants shall retain all Records that
they claim to be privileged until the United States has had a reasonable opportunity to
dispute the privilege claim and any such dispute has been resolved in the Settling
Defen dan ts' fa vor.
c. No Records created or generated pursuant to the requirements of this Consent Decree
shall be withheld from the United States [or the State] on the grounds that they are
privileged or confidential.
120. No claim of confidentiality or privilege shall be made with respect to any data, including,
but not limited to, all sampling, analytical, monitoring, hydrogeologic, scientific, chemical, or
engineering data, or any other documents or information evidencing conditions at or around the
Site."
------- |