11/03/88
Community Relation During Enforcement Activities and Development of the Ad
OSWER Directive No. 9836.0-1A
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OSWER DIRECTIVE
No. 9836.0-1A
MEMORANDUM
SUBJECT: Chapter 6 of the Community Relations Handbook
FROM: J. Winston Porter
/s/ _____________________
Assistant Administrator
TO: Regional Administrators
Regions I-X
When the revised version of Community Relations in Superfund: A
Handbook went to print this summer, Chapter 6 was not yet in final form.
This Chapter, "Community Relations during Enforcement Activities and
Development of the Administrative Record", is attached in interim final
form. Please insert it into the Handbook in lieu of the prior version
( August, 1985 ).
The Chapter deserves wide distribution to the technical and enforcement
branches, Office of Regional Counsel, and Office of Public / External
Affairs, as well as to States. Chapter 6 stresses the importance of the
team approach to managing community relations at enforcement-lead sites, and
discusses the concepts of confidentiality in negotiations, public
participation requirements under SARA, and community relations coordinator
responsibilities regarding the administrative record.
Attachment
cc: Bruce Diamond, OWPE
Henry Longest, OERR
Elaine Stanley, OWPE
Lloyd, Guerci, OWPE
Russel Wyer, OERR
Lisa Friedman, OGC
Glenn Unterberger, OECM
Nancy Firestone, DOJ
Regional Counsels, Regions I-X
Waste Management Division Directors, Regions I-X
Regional Community Relations Coordinators
COMMUNITY RELATIONS DURING ENFORCEMENT ACTIVITIES
AND DEVELOPMENT OF THE ADMINISTRATIVE RECORD
6.1 BACKGROUND AND INTRODUCTION
6.2 APPLICABILITY
6.3 OVERVIEW OF THE CERCLA ENFORCEMENT PROGRAM
6.4 COMMUNITY RELATIONS RELATED TO ENFORCEMENT ACTIVITIES AND ADMINISTRATIVE
RECORDS
6.4.A Planning Community Interviews and Developing Community
Relations Plans
1. Community Interviews
2. Community Relations Plans ( CRPs )
3. Potentially Responsible Party ( PRP ) Involvement
6.4.B Enforcement Activities and Community Relations at Remedial
Sites
1. Introduction
2. Notice to PRPs
3. Negotiations
4. Community Relations Following an RI / FS Order
5. Public Notice and Comment on Consent Decrees for RD / RA
6. Community Relations During PRP Remediation
7. Technical Discussions
6.4.C Community Relations During Removal Actions
6.4.D Community Relations During Specific Enforcement Actions and
Settlements
1. Consent Decrees, De Minimis and Cost Recovery
Settlements
2. Injunctive Litigation
3. Cost Recovery
4. Interaction with RCRA and other applicable Federal and
state laws
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6.4.E The Administrative Record as Part of Community Relations
1. Overview
2. Purpose of the Administrative Record
3. Community Relations Coordinator
Responsibilities for the Administrative Record
4. Additional Community Relations Coordinator
Responsibilities
5. Relationship Between the Administrative Record and
Information Repositories
6.5 Appendix: Environmental Fact Sheet, "The Enforcement Process: How it
Works"
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COMMUNITY RELATIONS DURING ENFORCEMENT ACTIVITIES AND
DEVELOPMENT OF THE ADMINISTRATIVE RECORD */
*/ This memorandum replaces current OSWER Directives 9836.0 and 9836.0-1a,
and is the new Chapter 6 of the Community Relations in Superfund: A
Handbook ( hereinafter referred to as the Handbook ).
6.1 BACKGROUND AND INTRODUCTION
The Comprehensive Environmental Response, Compensation and Liability Act
( CERCLA ) as amended, provides the U.S. Environmental Protection Agency
( EPA ) with the authority to respond directly or to compel potentially
responsible parties ( PRPs ) to respond to releases or threatened releases
of hazardous substances, pollutants or contaminants. CERCLA created two
complementary programs aimed at achieving this goal.
Under the first program a trust fund, known as the Superfund, may be
available for site remediation when no viable PRPs are found or when PRPs
fail to take necessary response actions. PRPs are defined as parties
identified as having owned or operated hazardous substance sites, or who
transported or arranged for disposal or treatment of hazardous substances,
pollutants or contaminants at such sites. The second program provides EPA
with the authority to negotiate settlements, to issue orders to PRPs
directing them to take necessary response actions, or to sue PRPs to repay
the costs of such actions when the trust fund has been used for these
purposes. The actions EPA takes to reach settlement or to compel
responsible parties to pay for or undertake the remediation of sites are
referred to as the Superfund enforcement process.
This chapter includes an overview of the CERCLA enforcement program, and
a discussion of enforcement activities, community relations, and the
administrative record. It provides specific discussions on community
interview planning and development of community relations plans ( CRPs ) for
enforcement-lead sites; enforcement activities requiring public
participation; community relations during specific enforcement actions and
settlements; and the relationship between the administrative record for
response selection and community relations. The chapter is intended to
discuss only how enforcement activities should be considered during overall
community relations program planning and implementation. In developing this
chapter, the Agency refrained from repeating information contained elsewhere
in the Handbook. */
*/ This memorandum replaces current OSWER Directive 9836.0 and 9836.0-1,
and is the new Chapter 6 of the Community Relations in Superfund: A
Handbook ( hereinafter referred to as the Handbook ).
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6.2 APPLICABILITY
This policy applies to all Fund-financed, Federal enforcement,
CERCLA-funded State enforcement, and PRP-lead removal and remedial actions,
as defined in the National Contingency Plan ( NCP ). The information
contained in this chapter is consistent with and serves to implement the
NCP. It creates no rights and/or obligations of any party.
6.3 OVERVIEW OF THE CERCLA ENFORCEMENT PROGRAM
A primary goal of CERCLA is to compel PRPs to remediate sites that are
releasing or threatening to release hazardous substances into the
environment. The enforcement process may involve the following major
efforts.
First, EPA attempts to identify PRPs as early as possible. Where
practicable, EPA generally notifies these parties of their potential
liability for response work when the site is scheduled for some action; EPA
will then encourage PRPs to do the work.
If the PRPs are responsive and EPA believes the PRPs are willing and
capable of doing the work, EPA will attempt to negotiate an enforcement
agreement with the PRP(s). The enforcement agreement may be an agreement
entered in court ( e.g., a judicial consent decree ) or it may be an
agreement signed by EPA and the PRPs outside of court ( an administrative
order on consent ). Both of these agreements are enforceable in a court of
law, and are subject to EPA oversight of the work performed by PRPs.
If a settlement is not reached, EPA can use its authority to issue a
unilateral administrative order, which directs PRPs to perform removal or
remedial actions at a site. If the PRPs do not respond to an administrative
order, EPA has the option of filing a law suit to compel performance.
Finally, if PRPs do not perform the response action and EPA undertakes
the work, EPA may file suit against PRPs to recover money spent by EPA from
the Superfund. This is known as cost recovery, and is a major priority
under the CERCLA program.
The Appendix to this chapter, a fact sheet on the enforcement process,
explains in simple terms the tools and authorities provided by CERCLA, and
the methods EPA may use to negotiate settlements with PRPs.
EPA must strive to help communities understand Superfund program goals
and activities, including enforcement actions. In this effort, the lead
agency needs to consider the concerns of the local community. By
identifying community concerns, the Agency can attempt to develop
alternatives to response actions or
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a variation to a remedial action plan that may better meet the needs of the
local residents.
6.4 COMMUNITY RELATIONS RELATED TO ENFORCEMENT ACTIVITIES AND ADMINISTRATIVE
RECORDS
In fostering community relations during enforcement actions, Community
Relations Coordinators ( CRPs ) should follow the same essential steps as
for Fund-financed actions. The planning steps that are critical to
community relations are conducting community interviews and developing
community relations plans ( CRPs ). Once the CRP has been developed, the
CRC and other members of the site team should insure that implementation
follows this CRP. The administrative record file can be used to insure that
the public knows what is happening at the site, as well as how to get
involved in determining what happens at the site. This chapter emphasizes
the enforcement aspects of these activities and recognizes the possibility
of PRP interest in participating in these and other activities.
6.4.A Planning Community Interviews and Developing Community Relations
Plans ( CRPs )
6.4.A-1 Community Interviews
In addition to general preparation for community interviews ( see
Chapter 3, of the Handbook ), community relations staff should discuss the
site with other Regional staff in order to identify what special
precautions, if any, should be taken in the course of conducting the
community interviews ( e.g., sensitivity to pending litigation or the
political climate of the community ). By discussing the site with regional
technical and legal staff in advance of the community interviews, community
relations staff can be apprised of any situations that might impact on these
interviews. With or without viable PRPs, the Remedial Project Manager
( RPM ) should participate in the community discussions.
The regional community relations staff, with the RPM or enforcement
staff, conducts discussions with different groups before developing the
CRP. It is important to note that some interviews may already have been
conducted in the community as part of the listing process for the National
Priorities List ( NPL ). These discussions, however, do not replace
community discussions held during development of a CRP. The information
sought during the CRP development covers specific areas that are not
necessarily discussed - or asked - during the listing process. Also, CRCs
are not, nor should they be, investigators of PRP actions at the site.
During community discussions, if information is volunteered, the CRC should
advise the resident that enforcement officers will follow up on this
information.
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To incorporate the full range of views, lead agency staff may consider
interviewing PRPs in the community. Every site varies and so also do PRPs,
their contribution to the site, and their standing in the community. In
some cases, only the current owner or operator is contacted. The
enforcement team for the site will determine who to interview. This team is
comprised of a CRC, the on-scene coordinator, regional counsel, the RPM, the
Enforcement Project Manager ( EPM ), as well as equivalents at the State
level when the State has the lead.
6.4.A-2 Community Relations Plans
Using information obtained during the community interviews, the lead
agency develops a community relations plan ( CRP ) that reflects
consideration of the concerns and communication methods preferred by the
community. The CRP format is fully described in Chapter 3 and Appendix B of
the Handbook. In addition, the CRP includes two appendices; the first
presents EPA's contact list of key community leaders and interested parties.
Note that the list of community contacts will not be in the Appendix if it
contains private citizen's addresses and phone numbers. On the other hand,
public agencies, elected officials, and local groups' addresses can be
included in the administrative record and information repositories. The
second appendix outlines suggested locations of meetings, the administrative
record and information repositories. These are all public information.
The CRP is a critical planning tool for lead agency staff and for the
public, as it will likely reach and impact many people. CRPs prepared for
sites with viable PRPs should receive input from all members of the
enforcement team who are directly affected by the scheduled activities in
the CRP. For example, attorneys should approve the accuracy of any legal
information; the RPM or EPM should approve the accuracy of any technical
information; and the CRC should approve the accuracy of the community
relations techniques used in the CRP. The CRC is ultimately responsible for
insuring that the community relations requirements of CERCLA / SARA are
implemented. Therefore final approval of the CRP should be by the CRC, with
concurrence on specific sections by members of the team.
Coordination activities among the CRC, on-scene coordinator, regional
counsel, the RPM, and the EPM, depend on the site-specific situation. The
key initially is to plan activities and establish procedures for reviewing
information. Adequate planning should prevent the release of information
that might be detrimental to the settlement and/or litigation process.
Internal discussions with all team members during project planning may be
useful mechanism for guarding against such releases. This need for
coordination is perhaps the most crucial message put forth in this guidance.
Although EPA must share information about a site with the people directly
affected by the
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site, this information exchange should be technical and not legalistic, and
should be coordinated so as not to jeopardize negotiations with PRPs.
Community relations activities outlined in a CRP for an enforcement site
should be consistent with the settlement process and the likely schedule of
enforcement actions. Techniques peculiar to enforcement sites ( such as the
technical discussions outlined in Section 6.4.B-7 ) may be identified in the
CRP as community relations activities. ( Within the various sections and
appendices of a CRP, the CRC staff may wish to document EPA's approach to
coordinating and sharing information with PRPs. However, any special
conditions on Agency interacting with the PRPs should be spelled out in the
administrative order or consent decree, not in the CRP. The public must be
told early if PRPs are willing to participate in implementing the CRP. The
CRC staff can do this by preparing a fact sheet or stating this at a public
meeting. ) Discussions about the PRPs prior to signing a consent agreement,
however, can cause delays in the negotiations. It is preferable to delay
discussing details of PRP involvement with the site until some agreement is
signed or action taken. If the PRPs are to be a part of the community
relations program, early comments can cause tension and mistrust between
Agency staff and the PRP.
Assuming a site has not been referred for litigation, the CRP only needs
to inform the public of the possibility of litigation. CRC staff may choose
to describe the litigation process, and discuss the potential effects of
litigation on the scope of community relations activities. If the site is
referred later for litigation, the CRP is to be modified to provide that
statements about the litigation, other than public information that can be
ascertained from court files, must be cleared with the Department of Justice
before issuance. The regional counsel team member will be the focal points
for that clearance, as well as for consulting with DOJ on statements
concerning site status, such as investigations, risk assessments and
response work. The plan will be amended to reflect any potential effects
this could have on community relations activities. When referral for
litigation is the initial enforcement action, the original community
relations plan should specify the activities that are to be conducted during
litigation, to the extent they can be determined at that time. Section
6.4.D-2 of this policy discusses the litigation process.
6.4.A-3 Potentially Responsible Party ( PRP ) Involvement
EPA is the lead agency for developing and implementing community
relations activities at an EPA "PRP-lead" site. A PRP may assist in the
implementation of community relations activities at the discretion of the
Regional office. The Regional office, however, will oversee PRP community
relations implementation. Specifically, PRPs may be involved in community
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relations activities at sites where they are conducting either the remedial
investigation / feasibility study ( RI / FS ), or the remedial design /
remedial action ( RD / RA ), or both. If a PRP will be involved in
community relations activities, the CRP should reflect that involvement. In
these cases, the PRPs may wish to participate in public meetings, or in the
preparation of fact sheets. EPA, however, will not "negotiate" the contents
of press releases with PRPs.
When complete and final, the CRP should be provided to all interested
parties, and placed in the administrative record file and information
repository for the particular site. If the CRP is revised, the final
revised copy should be made available to the public, and placed in the
administrative record file and the information repository, as well.
6.4.B Enforcement Activities and Community Relations at Remedial Sites
The following subsections present an overview of the notice process
leading to the initiation of RI / FS or RD / RA negotiations, community
relations following an RI / FS order, public comment on RD / RA consent
decrees, community relations during PRP remediation, and technical
discussions.
6.4.B-1 Introduction
Community relations activities should be planned as early in the process
as possible. Generally, this occurs before the RI / FS special notice,
which is discussed below. Meetings with small groups of citizens, local
officials and other interested parties are extremely helpful for sharing
general information and resolving questions. These meetings also may serve
to provide information on EPA's general enforcement process, perhaps through
distribution of the fact sheet attached to this guidance. A discussion of
how EPA encourages settlements may be appropriate at this time.
Litigation generally does not occur until after the remedy is selected
( after the moratorium period that begins when the special notice for
RD / RA ends, as discussed below ). EPA staff, however, may need to explain
early in the process that legal constraints may apply during negotiations or
litigation with respect to community relations activities.
6.4.B-2 Notice to PRPs
Notice letters are used to inform PRPs of their potential liability and
provide an opportunity for them to enter into negotiations, which are
intended to result in PRPs conducting or financing response activities. The
negotiation process may include "informal" and "formal" negotiations.
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EPA has established a discretionary three-step notification process to
facilitate and encourage settlements at remedial sites. First, well before
the RI / FS starts, EPA usually sends a general notice to PRPs. Second, a
special notice for the RI / FS may be sent in appropriate circumstances.
Third, a special notice for the RD / RA may be sent, where appropriate.
The general notice advises PRPs of possible liability. The special
notices initiate formal negotiations and invoke a moratorium on EPA
conducting the RI / FS special notices should be issued at least 90 days
before EPA plans to obligate Fund money for the RI / FS. For an RD / RA,
the preferred approach is to issue special notices at the time the FS and
proposed work plan are released for public comment, although notice may be
issued after the Record of Decision ( ROD ) is signed. Once the special
notice is sent, a 60-day moratorium on EPA's conduct of certain response
activities is triggered. If a "good faith" offer is not received within 60
days, EPA may proceed with its own RI / FS or removal, or take enforcement
action against the PRP. If a good faith offer is received, EPA's goal is to
conclude RI / FS negotiations with an administrative order on consent within
90 days of the RI / FS special notice. RD / RA negotiations are targeted
for conclusion with an RD / RA consent decree within 120 days of the RD / RA
special notice. These are statutory moratorium periods. The timeframe for
the RD / RA special notice moratorium may be extended for 30 days by the
Regional Administrator and beyond that by the Assistant Administrator,
OSWER. Special educational efforts should be conducted prior to negotiation
/ moratorium to warn the public that little if any information will be
available to the public during negotiations ( see below ).
Detailed guidance on issuance of notice letters is discussed fully in
the "Interim Guidance on Notice Letters, Negotiations, and Information
Exchange" ( October 19, 1987 ), 53 FR 5298 ( OSWER Directive #9834.1 ).
6.4.B-3 Negotiations
Negotiations are generally conducted in confidential sessions between
the PRPs and the Federal government. Neither the public, nor the technical
advisor ( if one has been hired by a community ) may participate in
negotiations between EPA, DOJ and the PRPs unless everyone agrees to allow
such participation. Otherwise the ability of the parties to assert
confidentiality at some later date may be affected.
The confidentiality of statements made during the course of negotiations
is a well-established principle of our legal system. Its purpose is to
promote a thorough and frank discussion of the issues between the parties in
an effort to resolve differences.
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Confidentiality not only limits what may be revealed publicity, but also
ensures that offers and counter-offers made in the course of negotiations
may not and will not be used by one party against the other in any ensuing
litigation.
Potentially responsible parties may be unwilling to negotiate without
the guarantee of confidentiality. They may fear public disclosure regarding
issues of liability and other sensitive issues which may damage their
potential litigation position or their standing with the public. This
expectation of confidentiality necessarily restricts the type and amount of
information that can be made public.
CRC staff should consult with and obtain the approval of other members
of the technical enforcement and regional counsel team before releasing any
information regarding negotiations. If the site has been referred or is in
litigation, DOJ approval should also be obtained. In lieu of direct
participation by the public in negotiation sessions, the CRC staff may wish
to send out the fact sheet on the Superfund enforcement process attached to
this guidance, along with the moratorium schedules for that specific site.
6.4.B-4 Community Relations Following an RI / FS Order
As discussed above, RI / FS settlements usually are resolved as
administrative orders on consent. For remedial sites, an RI / FS workplan
is a trigger for implementation of community relations activities. When the
workplan is complete, a "kick-off" meeting with the public may be conducted
in order to present the final workplan and explain the next steps. If held,
CRC staff should make it clear that EPA approved the workplan; announce how
the PRP will be performing the RI / FS; explain EPA's oversight role;
discuss the enforcement process and confidentiality requirements; and
explain where EPA's record files will be/or are located. As discussed in
section 6.4.E, the administrative record file will be available at a central
regional location, and at or near the site. Since it contains information
which the lead Agency uses in selecting a final remedy, the administrative
record file should be used as a tool to facilitate public involvement.
Once the RI / FS has been completed, the agency will issue the proposed
remedial action plan, and publish a notice announcing a public comment
period. At a minimum, the notice must be published in a major local
newspaper of general circulation. A formal comment period of not less than
21 calendar days must be provided for the public to submit oral and written
comments. Note that proposed revisions to the National Contingency Plan
( NCP ) suggest extending this to not less than 30 calendar days.
An opportunity for a public meeting is also required to be offered
during the comment period, as well as a transcript of the
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meeting on the proposed plan. The transcript must be made available to the
public in the administrative record, and may be distributed in the
information repositories and on request. See Chapter 4 of the Handbook for
a complete outline of these specific public participation requirements.
Once the public comment period on the proposed plan has closed, a
responsiveness summary is prepared which serves two purposes. First, it
provides lead agency decision-makers with information about community
preferences regarding both the remedial alternatives and general concerns
about the site. Second, it demonstrates to members of the public how their
comments were taken into account as an integral part of the decision-making
process. A Record of Decision ( ROD ) is then issued by EPA as the final
remedial action plan for a site. Both the ROD and the responsiveness
summary will be placed in the administrative record file and other
information repositories. In addition, the responsiveness summary may be
distributed to all those who commented and to the entire site mailing list.
See Chapter 4 of the Handbook for further information on requirements for
public notice and availability of the ROD and responsiveness summary.
6.4.B-5 Public Notice and Comment on Consent Decrees for RD / RA
If a negotiated settlement for remedial action under CERCLA section 106
is reached, it will be embodied in a proposed consent decree ( to be entered
by a court ). CERCLA section 122(d)(1) requires the use of consent decrees
as the vehicle of agreement between the Federal Government and PRPs on
remedial actions taken under section 106 of CERCLA. CERCLA section 122
contains specific public participation requirements. The Department of
Justice lodges ( provides a copy of ) the consent decree with the court,
publishes a notice of the proposed consent decree in the Federal Register,
and offers an opportunity for non-signatories to the agreement to comment on
the proposed consent decree before its entry by the court as a final
judgement. The public comment period must not be less than 30 calendar days
in length and may be extended if warranted. The proposed consent decree may
be withdrawn or modified if comments demonstrate it to be inappropriate,
improper or inadequate.
In order to ensure that public comment opportunities are extended to
interested parties, EPA staff routinely prepare a press release to be issued
after the consent decree has been lodged as a proposed judgment with the
court. DOJ should notify the regional counsel for the particular site and
provide a copy of the Federal Register notice of the decree. Regional
counsel will assure that the RPM and CRC are informed of this event. CRC
staff can then mail copies of the press release or copies of the Federal
Register notice to persons on the site mailing list. The press release
should indicate that copies of the consent decree document may be obtained,
including its location and that of any
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other relevant documents. The procedures for public comment on the consent
decree, as well as a contact name for obtaining further information, should
also be announced. The public notice and press release for the consent
decree may be combined, if appropriate.
The ROD and responsiveness summary have usually been made public by
this time. However, inasmuch as comments previously were requested on the
proposed plan, comments are requested only on the consent decree.
Communications with the public should focus on the remedial provisions of
the settlement agreement. Details of the negotiations, such as the
behavior, attitudes, or legal positions of PRPs, any compromises
incorporated in the settlement agreement, and evidence or attorney
work-product material developed during negotiations, must remain
confidential.
If a negotiated settlement for RD / RA results in actions fundamentally
different from those selected in the ROD, the ROD will have to be amended.
An amendment to a ROD also requires a public comment period, which should
coincide if possible, and be held jointly with, the comment period for the
consent decree.
A public meeting may be held during the public comment period, at the
site team's discretion. Regional staff must offer the opportunity for a
public meeting when there are significant community issues or concerns, or
for other reasons which are determined by and based upon the judgment of EPA
regional staff. If held during the public comment period, these meetings
need to be documented, and significant oral comments received during the
meeting must be addressed in the responsiveness memorandum on the consent
decree.
Once the public comment period on the proposed consent decree has
closed, DOJ staff ( in cooperation with EPA staff ) must consider each
significant comment and write a response. Assuming that EPA and DOJ will
then file a Motion to Enter with the court, the responsiveness memorandum,
the comments received, and the consent decree itself. The responsiveness
memorandum and motion to enter the consent decree are released to the public
at the same time. The Regional team will use information repositories,
administrative record files, and/or other means to make these documents
available to the public.
6.4.B-6 Community Relations During PRP Remediation
EPA retains responsibility for community relations during a PRP-managed
remedial action pursuant to a consent decree or any enforcement order. The
scope and nature of community relations activities will be the same as for
Fund-lead response actions. When PRPs participate in community relations
activities at the site, EPA and PRP roles need to be determined and
explicitly defined. Where a PRP has not been involved in the initial stages
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of implementing the community relations plan, but shows sufficient interest,
commitment and capability to warrant some level of participation, EPA should
re-evaluate its role in conducting community relations activities. In that
case, a new CRP may be developed at the discretion of the regional team.
PRP roles in conducting community relations may also be addressed in the
consent decree or other enforcement orders.
6.4.B-7 Technical Discussions
Technical meetings are considered informational, and provide orientation
to the enforcement process. One of the objectives in holding technical
meetings is to describe, instruct, and explain how the remedy may or will
( depending on whether a ROD has been signed ) address the conditions of the
site. Workshops exploring the approach to the site and project status, can
occur at any point up to and beyond remedy selection. If held during
RI / FS or RD / RA negotiations, they should be separated from the legal
discussions. The RPM may host a technical discussion without PRP
concurrence; however, willingness by the PRPs to participate may facilitate
a more open and honest dialogue with the community.
Technical information must be documented and available for the public in
the administrative record file. Technical or factual information which
comes up during negotiations should also be included in the administrative
record file. Issues of liability, however, are appropriately discussed only
during negotiations between EPA and PRPs, and should not be included in the
administrative record file.
Technical assistance grants are authorized under section 117(e) of
CERCLA, which allows EPA to make grants available to communities affected by
a release or threatened release at an NPL site. Community groups may use
these grants to obtain assistance in interpreting technical information on
the nature of the hazard and recommended alternatives for investigation and
cleanup.
6.4.C Community Relations During Removal Actions
EPA will encourage public participation during removal actions to the
extent possible. However, there will be time when this participation may
need to be constrained. The NCP, the Handbook, and Removal Procedures
establish the requirements for removal actions, including administrative
record requirements.
The enforcement program encourages PRPs to conduct or pay for removal
actions. At any time, the Agency may arrive at an agreement with the PRPs
to conduct a removal, which would usually be embodied in an administrative
order on consent. EPA also may issue a unilateral administrative order to
compel a PRP to undertake a removal or other action. In addition, under
limited circumstances, the Agency may refer the action to DOJ, seeking a
court order to secure the removal.
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By their nature, the situations that require emergency removals do not
allow for extensive public involvement. Adjustments to the community
relations process must be made to accommodate necessary time constraints.
It is proposed in the draft NCP that a public comment period of at least 30
days be required for removals with a planning period of at least 6 months
before the initiation of on-site activity. For removals with a planning
period of less than 6 months before the initiation of on-site activity, a
public comment period may be held where appropriate. The public comment
period, if held, begins when the record file is made available for public
inspection.
A unilateral administrative order or administrative order on consent is
a public document and should be made available to the affected community at
a minimum, through the administrative record file. In addition, community
relations staff should discuss the terms of the order with and describe the
removal action to citizens, local officials, and the media. If the PRP
subsequently fails to respond to the order, any public statements or
information releases regarding the status of actions at the site or
prospective EPA actions should first be cleared with appropriate Regional
technical and legal enforcement personnel.
Community relations activities during removals conducted by PRPs should
be the same as for Fund-financed removals. PRPs may participate in
community relations, subject to the same considerations described previously
in this guidance under Section 6.4.A-3.
6.4.D Community Relations During Specific Enforcement Actions and
Settlements
6.4.D-1 Consent Decrees, De Minimis and Cost Recovery Settlements
Under section 122(d)(1) of CERCLA, settlements for remedial action are
to be in the form of consent decrees filed in Federal court. Section
122(d)(2)(B) requires DOJ to provide an opportunity for public comment on
proposed consent decrees. This concept is discussed in section 6.4.B-5.
Section 122(i) of CERCLA requires the lead Agency to publish a notice of
proposed settlement, for both administrative orders on consent under section
122(g)(4) ( de minimis settlements ), and under section 122(h) ( cost
recovery settlements / arbitration ). The notice published in the Federal
Register must identify the facility concerned and the parties to the
proposed settlement.
A public comment period of not less than 30 days is required for these
agreements. Regional staff should provide notice ( e.g., a press release,
notice to persons on the site mailing list or an ad in the newspaper of
local circulation ) to supplement the Federal Register notice. The press
release should
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provide a contact for further information.
The lead agency with jurisdiction must consider any comments filed, and
determine if the proposed settlement requires modification where comments
demonstrate that the proposed agreement is inappropriate, improper or
inadequate, or can become effective without change. The final settlement
and the response to comments must be released at the same time and be made
available to the public. This can be accomplished by placing both documents
in the administrative record file. The response to comments document
( responsiveness summary ) should also be sent directly to those who
commented. PRPs who are party to the settlement will receive notice from
the Agency that the agreement will go into effect unchanged or that
modifications are required. A statement that the responsiveness summary may
be obtained from the administrative record file or upon request should be
added to this notice.
6.4.D-2 Injunctive Litigation
At any point in the enforcement process, a case may be referred to DOJ
for litigation, and community relations activities may change in scope.
Referral is likely to occur most frequently for RD / RA after the moratorium
has concluded. If litigation is initiated early in the enforcement process,
the CRP for the site may need to be modified substantially. If litigation
is initiated late in the process ( e.g., after the conclusion of the RD / RA
special notice moratorium ), the plan will require only the addition of the
litigative process.
When a case has been referred to DOJ, community relations activities at
the site should be re-evaluated by the site team, and changes necessary to
accommodate confidentiality should be agreed upon by the site team,
including DOJ. While strong consideration should be given to implementing
the plan as developed and previously approved, the litigation process may
require changes in public disclosure. For example, the court may impose a
gag order or place restrictions on information releases during negotiations
or any meetings with the public to discuss potential site remedy. Under
these circumstances, the DOJ attorney will advise the site team on how to
proceed.
6.4.D-3 Cost Recovery
If a Fund-financed cleanup is conducted, EPA may initiate litigation to
recover the costs of response. Since cost recovery generally follows
removal actions or initiation of remedial action, community interest in the
site usually will have lessened, unless other operable units remain to be
addressed.
A spokesperson chosen by the site team, in coordination with DOJ, should
take the lead in responding to inquiries regarding current site conditions.
All inquiries regarding litigation
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should be forwarded to the EPA cost-recovery team, which will prepare a
response subject to the concurrence of DOJ.
6.4.D-4 Interaction with RCRA and other Federal and State Laws
On May 5, 1987, the Office of Solid Waste and Emergency Response issued
guidance for public involvement in RCRA section 3008(h) actions ( OSWER
Directive #9901.3 ). This guidance establishes the process for public
involvement in actions taken under section 3008(h) of RCRA.
Section 3008(h) of RCRA, the interim status corrective action authority,
allows EPA to take enforcement action to require cleanup at a RCRA interim
status facility when the Agency has information that there has been a
release of hazardous waste or hazardous constituents. Two orders will
frequently be used to implement the cleanup program. The first order
requires the facility owner or operator to conduct a Corrective Measure
Study / RCRA Facility Investigation ( RFI / CMS ), similar to the RI / FS.
Once the remedy has been selected, a second order requires design,
construction, and implementation of that remedy.
The RCRA guidance outlines both minimum public involvement requirements
and expanded public involvement suggestions. In many ways the RCRA guidance
uses procedures and ideas drawn from the Superfund community relations
program. Thus, coordination between Superfund and RCRA personnel at sites
where actions under both CERCLA and RCRA are anticipated is appropriate.
Superfund CRCs may want to become familiar with this guidance and with the
RCRA Public Involvement Coordinators to ensure that the Agency presents a
coordinated approach.
Familiarity with other Federal or state laws such as the Clean Air Act,
Clean Water Act, etc. will generally make the role of the CRC easier, for
frequently many media are represented at a hazardous waste site. A general
knowledge of Federal or state requirements may help the CRC in conversing
with the public.
6.4.E The Administrative Record As Part of Community Relations
6.4.E-1 Overview
Section 113(k)(1) of CERCLA requires the establishment of an
administrative record upon which the selection of a response action is
based. It also requires that a copy of the administrative record be located
at or near the site. Section 113(k)(2) of CERCLA requires that the Agency
promulgate regulations outlining procedures for interested persons to
participate in developing the administrative record. The Agency is
addressing these statutory requirements through revisions to the NCP and
through the development of a guidance document.
Throughout the decision-making process, from remedial
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investigation to selection of remedy, the administrative record file will be
available for public inspection at a central regional location and at or
near the site. The information in the file is crucial to the public in that
it contains the information upon which the lead Agency bases its decisions
toward selecting a final remedy. Community relations staff should use the
administrative record file as a tool for facilitating public involvement.
Publicity-available documents concerning response selection must be made
available to all interested parties at the same time. EPA staff should
avoid situations where local residents are provided opportunities to review
and comment on site information and other members of the public are not
provided the same opportunity. Similarly, if EPA requests PRPs to review a
plan, EPA should enable other members of the public to review that plan as
well. When a kick-off meeting is scheduled to explain the final workplan
and obtain opinions, the public, including residents and PRPs, should be
invited.
The administrative record file and CRP for a remedial action should be
made available to the public no later than the time the remedial
investigation phase begins, which is usually when the RI / FS workplan is
approved. The timing for establishing the administrative record file for a
removal action will depend on the nature of the removal. As proposed in the
draft NCP, for removals with a planning period of at least six months before
on-site activities will be initiated, the record file must be made available
to the public when the engineering evaluation / cost analysis ( EE / CA ),
or its equivalent, is available for public comment. For removals with a
planning period of less than six months, the record file must be available
to the public no later than 60 days after initiation of on-site cleanup
activity.
6.4.E-2 Purpose of the Administrative Record
The administrative record has a two-fold purpose. First, the record
provides an opportunity for the public to be involved in the process of
selecting a response action. During the selection of a response action,
information is reviewed and made available in the publicly accessible
administrative record file. Second, if the Agency is challenged concerning
the adequacy of a response action, judicial review of a response action
selection will be limited to the administrative record. By limiting
judicial review to the record, a court's review is based upon the same
information that was before the Agency at the time of its decision. The
public should be advised that their comments must be submitted in a timely
manner in order to be considered.
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6.4.E-3 Community Relations Coordinator Responsibilities for the
Administrative Record
The OSC / RPM and regional attorney, with the support of the
administrative record coordinator, are responsible for deciding which
documents are to be included in the administrative record, and ensuring its
adequate compilation and maintenance. The Regional Administrator or his
designee is responsible for the certification of the record for litigation.
CRCs will have some general duties in developing the record file, but every
region has defined different roles. In general, however, the CRC duties
will center on the relationship of the administrative record file to the
information repositories, public notices and public comments.
First, CRCs and administrative record staff must coordinate the location
of the administrative record file and information repositories. The statute
requires that the administrative record be available at or near the facility
at issue, and that information be available for public inspection and
copying. If the information repository does not contain a copying facility,
the Region or State may want to make arrangements for copying the record
file. EPA, however, is not required to copy the information for interested
persons.
Second, the notice of availability for the administrative record must be
published in a major local newspaper of general circulation. A copy of the
public notice must also be place in the administrative record file and may
be made available to the public through the community relations mailing
list. ( See the Overview section above for a discussion of when the
administrative record file must be made available to the public. ) This
notice may be combined with other notices of availability depending on the
timing of activity at a site, e.g., a notice of availability of the
information repository. Where appropriate, a notice of availability of the
record file or of commencement of the public comment period may be published
in the Federal Register. The public is not notified each time a document is
added to the record file. These notices should be coordinated between the
CRC and administrative record staff in order to use resources most
efficiently. For a more complete discussion of the notice of availability,
see the Guidance on Administrative Records for Selection of CERCLA Response
Actions ( OSWER Directive #9833.3A ).
Third, the completed CRP must be placed in the administrative record
file. Community Relations Coordinators must advise the Administrative
Record Coordinator that the CRP is final and provide him / her with a copy.
Fourth, information contained in records of communication that were
generated by the community relations staff and considered or relied on in
selecting a response should be
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included in the record file. In addition, Superfund CRCs should take
appropriate steps to ensure that any community relations documents that are
required to be placed in the administrative record file are provided to the
Regional official responsible for the record file.
Fifth, the text of all comments, criticisms and new information
submitted by the public, including PRPs, during the public comment period
must be included in the record file. A response to all significant comments
( i.e., the responsiveness summary ) must also be placed in the
administrative record file. The responses may be combined by subject or
other category in the record file.
The record file should reflect the Agency's consideration of all
significant public comments. The Agency has no duty to respond to comments
it receives during a formal comment period until the close of that formal
public comment period. If the Agency chooses to respond to a comment made
prior to a formal public comment period, the response must be included in
the record file. The Agency may suggest that comments submitted prior to a
formal public comment period be resubmitted during the comment period if the
commenter desires a response. Or the Agency may notify a commenter that the
Agency will respond to the comment in a responsiveness summary prepared at a
later date.
Comments which are received after the formal comment period closes and
before the decision document is signed should be included in the record file
but labeled "late comment." Since a responsiveness summary may already have
been prepared at this point, the Agency must respond to late comments only
if they contain significant new information not contained elsewhere in the
administrative record which could not have been submitted during the public
comment period, and which substantially support the need to significant
alter the response action.
Comments received after the decision document is signed should be placed
in a post-decision document file. They may be added to the record file if:
the documents concern issues relevant to the selection of the response
action that the decision document does not address or reserves to be decided
at a later date; or where there is a significant change in a response
selection which is addressed either by an explanation of significant
differences, or in an amended decision document. The Guidance on
Administrative Records cited above gives additional information in this
regard.
6.4.E-4 Additional Community Relations Coordinator Responsibilities
Because of regional differences CRCs may have additional, general
responsibilities, including:
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o Assessing the impact of the administrative record file on local
information repositories by consulting with officials at the
repositories. This must be done in coordination with the
Administrative Record Coordinator. CRCs should advise the public
where the administrative record file is located.
o Providing the Administrative Record Coordinator with information as
to how to notify the public of the availability of the record file.
This notification may be in addition to the newspaper notice.
o Making available the transcript of the local meeting on the
proposed plan, as required under section 117(a) of CERCLA.
o Providing assistance to the Administrative Record Coordinator to
ensure that final comments made by EPA on important documents
generated by the State or a Federal facility are documented in
writing and submitted to the State or Federal facility staff for
inclusion in the administrative record file. States and Federal
facility staff will compile and maintain the administrative record
files for those sites.
All staff involved in Superfund activities must become familiar with the
administrative record requirements.
6.4.E-5 Relationship Between the Administrative Record and Information
Repositories
Section 113(k)(1) of CERCLA requires that "the administrative record
shall be available to the public at or near the facility at issue."
Duplicates of the administrative record may be placed at any other location.
The original files concerning response action selection should be located at
the EPA Regional office. A copy of these files must be located at or near
the site. The draft NCP proposes that an exception be made for emergency
removal actions where on-site activities cease within 30 days of initiation.
Section 117(d) of CERCLA requires that "each item developed, received,
published, or made available for the public under section 117 shall be
available for public inspection and copying at or near the facility at
issue." These items are generally included in the information repository.
The administrative record file at or near the site at issue should be
located at one of the information repositories that already may exist for
community relations purposes. The information repository, maintained by the
Community Relations Coordinator, may contain additional information of
interest to the public, that is not necessarily part of the administrative
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record file ( e.g., press releases and newspaper articles ). Documents in
the administrative record file should be separated from the other materials
in the information repository.
EPA typically uses local libraries, town halls, and public schools as
locations for establishing repositories and administrative record files
because they are publicly accessible. In some instances, the volume of
information available for community relations and administrative record
purposes may be larger than the capacity of these locations. Where the
space of the information repository is inadequate for supporting the
administrative record file, an alternate location for the administrative
record file should be established. Administrative Record Coordinators
should estimate the volume of information expected to be included in the
repository and meet with appropriate local officials to discuss space
requirements. In some situations, separate locations may have to be
established. Administrative Record Coordinators and CRCs must inform one
another of any additional information placed in these separate locations to
ensure uniformity. CRCs should carefully review their responsibilities for
the administrative record ( Section 6.4.E-3 ).
Each administrative record file must be indexed. This index identifies
all the documents which comprise the record file, and lists those documents
which do not have to be present in the record file because of their
voluminous nature ( raw data for example ), but which are considered part of
the record. Their location must be provided. This index is part of the
record file location.
Finally, interested parties should be able to easily find the
document(s) they need. Documents in the administrative record file should
be well organized. The CRC and administrative record staff should
coordinate with the State in closing information repositories and record
files at the end of operation and maintenance, and following a five-year
review.
OMITTED TEXT:Appendix - Environmental Fact Worksheet, "The Enforcement
Process: How it Works."
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