08/26/83
Cost Recovery Actions Under CERCLA>
( OSWER Directive No. 9832.1 )
Attachment II
Cost Recovery Actions Under CERCLA
8/26/83
COST RECOVERY ACTIONS
UNDER THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE
COMPENSATION, AND LIABILITY ACT OF 1980
( CERCLA )
COST RECOVERY ACTIONS UNDER CERCLA
TABLE OF CONTENTS
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Assembling A Cost Recovery Action. . . . . . . . . . . . . . . . . 3
III. Elements of a Cost Recovery Action . . . . . . . . . . . . . . . . 4
A. Evidence of Release or Substantial Threat
of Release of a Hazardous Substance. . . . . . . . . . . . . . 6
B. Evidence of Responsibility of Defendant(s) . . . . . . . . . . 9
C. Evidence that Removal or Remedial Action
Taken by U.S. or State is Not Inconsistent
With the National Contingency Plan . . . . . . . . . . . . . . 11
D. Proof of Costs of Removal or Remedial
Action by the U.S. or a State. . . . . . . . . . . . . . . . . 13
IV. Procedural Issues. . . . . . . . . . . . . . . . . . . . . . . . . 16
A. Timing of the Cost Recovery Action . . . . . . . . . . . . . . 16
B. Statute of Limitations . . . . . . . . . . . . . . . . . . . . 17
C. Extent of Liability of Responsible Action. . . . . . . . . . . 18
D. The Demand Letter. . . . . . . . . . . . . . . . . . . . . . . 20
E. Procedure in Event of Response
To Demand Letter . . . . . . . . . . . . . . . . . . . . . . . 22
1. Negotiating Teams and Procedures. . . . . . . . . . . . . 23
2. Form of Settlement Agreement. . . . . . . . . . . . . . . 26
F. Procedure In Event of
No Response to Demand Letter . . . . . . . . . . . . . . . . . 27
G. Maintenance and Coordination of
Evidence In Event of Referral. . . . . . . . . . . . . . . . . 29
V. Note on Purposes and Use of This Memorandum. . . . . . . . . . . . 31
Appendix A ( Costs Recoverable Under CERCLA )
Appendix B ( Model Demand Letter )
Appendix C ( List of Documents )
Appendix D ( Model Cost Recovery Plan )
Appendix E ( Regional Superfund File Structure )
AUG 26 1983
MEMORANDUM
SUBJECT: Guidance on Pursuing Cost Recovery
Actions Under CERCLA
FROM: Courtney M. Price
Special Counsel for Enforcement
Lee M. Thomas
Assistant Administrator for
Solid Waste and Emergency Response
TO: Enforcement Counsel
Regional Administrators
Regional Counsels
Associate Enforcement Counsel-Waste Division
Regional Superfund Coordinators
Air and Hazardous Substance Division Directors
Environmental Services Directors
I. INTRODUCTION
Section 107 of the Comprehensive Environmental Response, Compensation
and Liability Act ( CERCLA ) provides generally that past and present owners
and operators of a site, and generators and transporters who contributed
hazardous substances to a site, shall be liable ( with certain limitations
to be discussed herein ) for all costs of removal or remedial action
undertaken by the U.S. government, a State, or any other person, and for
damages to or loss of natural resources.
While it is highly desirable to obtain removal and remedial action in
the first instance by responsible parties, rather than by the
Environmental Protection Agency ( EPA ) or a State, there are and will
continue to be many cases in which the Agency will authorize the use of
CERCLA funds from the Hazardous Substance Response Trust Fund ( the Fund )
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established by CERCLA for these actions, and thereafter attempt to recover
those costs from the party or parties who are liable under Section 107 of
the Act and other authorities.
Due to the possibility of cost recovery efforts in any case in which
CERCLA funds are expended, the observation, documentation and preservation
of critical facts and response costs is important to assure that:
* potential evidence concerning the site 1/ and responsible
parties is noted and documented before response activity or
the passage of time obscures or eliminates it;
1/ The word "site" as used herein applies to any location
where a release or spill has occurred, and maybe used
interchangeably with "facility" as defined in CERCLA
Section 101(9).
* physical evidence essential at trial is collected and
preserved appropriately; and
* sufficient evidence of total costs and claims paid from the
Fund has been maintained and is available to support recovery
by the government.
This memorandum describes essential elements which the government will
probably be called upon to prove in a cost recovery action; the assembly
and maintenance of a file; some examples of appropriate documentation for
each element of the cause of action; procedures for processing and
negotiating cost recovery claims; and the mechanics of repayment of any
recovery to the Fund, This guidance must be observed by EPA employees,
contractors, and, where appropriate, employees of State agencies working
on a site on which CERCLA funds are expended under an EPA-State
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cooperative agreement, in every situation in which CERCLA funds are
expended for site clean up, since each of these sites is the subject of a
potential cost recovery action. The Office of Waste Programs Enforcement
is preparing an additional cost documentation guidance; please contact
Libby Scopino ( 382-4482 ) for assistance.
II. ASSEMBLING A COST RECOVERY ACTION
The assembly of evidence for a cost recovery action begins with the
first response action taken under Section 104 of CERCLA. The filing of a
cost recovery action should be presumed; accordingly the collection of
relevant documentation is important. Generally, the government will
pursue a cost recovery action when there is a solvent responsible
party. 2/
2/ For a discussion of the factors to be considered in determining
whether to file a cost recovery action, see Part IV.F.
Where other government action against the responsible party is
contemplated or pending, such as a judicial action under Section 7003 of
RCRA or Section 106 of CERCLA to compel remedial measures at a site, a
cost recovery count under Section 107 of CERCLA for removal or remedial
costs can be added to the ongoing litigation.
The Regional Program office has the responsibility of collecting and
maintaining the documents used as evidence in cost recovery actions. In
matters which require legal opinions ( such as the legal right of the
Agency to enter a facility ) or the preparation of legal documents, the
program office should consult with and obtain the assistance of the
Regional attorney or the appropriate Headquarters attorney.
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III. ELEMENTS OF A COST RECOVERY ACTION
Under Section 104 of CERCLA, the U.S. or its authorized
representative may take removal or remedial action at a site when, inter
alia, any hazardous substance is released or there is a substantial threat
of such a release into the environment, unless EPA determines that such
action will be done properly by the owner or operator or by any other
responsible party. The government may pursue an action under Section
107(a) for (1) costs of removal or remedial action incurred by the U.S.
not inconsistent with the National Contingency Plan ( NCP ), or (2) claims
paid by the Fund for costs of response incurred by a state not
inconsistent with the NCP, or by other parties non inconsistent with the
NCP. 3/
3/ There may also be a claim made by trustees under Section 107(a)(4)(c)
of CERCLA for damage to or loss of natural resources. However,
until regulations for assessment of natural resource damages or
destruction are promulgated pursuant to Section 301(c) of the Act,
claims for such damages will be assessed on a case-by-case basis.
The best records available on those damages should be maintained
until specific guidance is developed on that subject.
Section 104(b) also authorizes the recovery of costs of sampling,
analysis, monitoring and surveying programs, and certain other costs,
including those for planning, legal and engineering services. 4/
4/ For a list of costs which are recoverable under CERCLA, see
Appendix A.
Therefore, to successfully pursue a cost recovery action, EPA should
be prepared to introduce evidence demonstrating:
1. release of a hazardous substance or the substantial threat of
such a release; and
2. the responsibility of the defendant(s); and
3(a). removal or remedial actions taken by the U.S. or the State
which were not inconsistent with the NCP 5/ and/or
5/ Although Agency policy is to maintain evidence that its response
activities are not inconsistent with the NCP, the Agency takes the
position that the defendant has the burden of proof on this issue.
4. the costs of action taken by the U.S., a State, or any other
person.
The financial condition of a responsible party is not an essential
element of proof of the cause of action. 6/
6/ While we do not believe that it is necessary to introduce evidence
that removal and remedial action would not have been done properly
by the owner or operator of a facility or by any other responsible
party, it would be prudent to have available evidence of efforts
by the Agency to obtain private party response action at the site.
The notice letters forwarded by the Agency to potentially
responsible parties and their responses are examples of such
evidence.
Even so, the financial condition of the responsible parties may be
considered in determining the feasibility of a cost recovery action.
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The chief elements of a cost recovery action and the nature of
evidence required to sustain them are discussed below.
A. Evidence of Release or Substantial Threat of Release of a
Hazardous Substance _____________________________________
A release of a hazardous substance or the substantial threat of such
release from a facility must be shown. The term "hazardous substance"
includes inter alia, any material designated as hazardous or toxic under
the Clean Water Act, Toxic Substance Control Act, or the Clean Air Act or
designated as a hazardous waste under RCRA ( see 40 CFR 302 ). The
definition should be consulted since it does not include every pollutant
or contaminant. 7/
7/ Section 104(a) of the Act authorizes the President (or his
designee) to take response action whenever there is a release or
threat thereof of a hazardous substance, or whenever there is a
release or substantial threat of a release of "any pollutant or
contaminant which may present an imminent and substantial
endangerment to the public health or welfare...". However,
Section 107 refers only to liability of owners, operators,
transporters and generators for costs incurred in responding to
releases or threats of releases of "hazardous substances". It is
not clear whether those persons may also be liable under Section
107 for costs incurred in responding to releases or threats of
releases of any pollutant or contaminant which is not a defined
hazardous substance, but which may present an imminent and
substantial endangerment. The government intends to hold such
persons liable for those costs under both Section 107 of CERCLA
and the common law theory of restitution.
Appropriate documentation of evidence of a release or substantial
threat of release includes field notes, photographs of the scene,
statements from witnesses, statements from owners or operators, follow-up
narrative reports or memoranda describing the scene or observations first
hand, samples of air, soil, water or leachate discharge and laboratory
analyses of the samples. Evidence collected must be sufficient to
demonstrate this aspect of the case.
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There are three important considerations here.
First, samples, records of the owner/operator, or other evidence
sufficient to establish the identity of hazardous substances involved
should be collected.
Procedures similar or identical to those used by the National
Enforcement Investigations Center ( NEIC ) 8/ should be followed, as
should the requirements of Section 104(e)(1)(B), which provides for
furnishing a receipt to the owner/operator for any samples taken (and a
split sample, if requested).
8/ NEIC Policies and Procedures Manual, May, 1978 ( rev., Dec. 1981 ),
EPA Document No. 330-9-78-001-R.
Observance of chain-of-custody procedures is necessary to demonstrate at
trial that samples analyzed as hazardous substances did, in fact,
originate at the site.
Collecting more data and documentation about sites than is reasonably
necessary may increase total response costs to an unduly high level and
delay clean-up activities and cost recovery. The number of samples
collected is primarily a matter within the judgment of the Regional and
Headquarters Superfund Offices, and will necessarily depend to a great
extent on the site and the affected areas of the environment. These
Offices should consult with the Regional Counsel prior to collecting
samples. However, the Agency should generally collect only enough samples
to determine (1) that a hazardous substance is present on the site; (2)
that a release of hazardous substance is substantially threatened or has
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occurred; and (3) what response is appropriate. Only unusual
circumstances ( e.g., to satisfy doubts over validity of previous samples,
to determine whether concentrations of hazardous substances are
increasing, etc. ) would justify incurring significant additional costs for
any additional sampling and analysis.
Samples should be taken in accordance with EPA-approved protocols and
procedures developed by NEIC and contained in its Policies and Procedures
Manual referred to above or similar procedures.
Second, collection of this evidence should begin immediately upon the
start of any investigation into whether some response activity ( including
sampling and surveying ) may be needed at the site in response to a release
or threat of release. Passage of time or deliberate interference by other
parties may literally destroy the evidence. Similarly, a long delay
between the initial observation and the trial, or the initial observation
and the recordation of that observation, will make testimony by witnesses
about the site more difficult. Photographs of the scene before, during
and after the response action are frequently helpful in preparing
witnesses to testify, and in providing a visual record to the Court of
conditions that prompted the response activity.
Field notebooks and the results of laboratory analysis are critical in
showing the conditions that existed at the site and establishing a
potential link to the defendant. Sampling and analysis should be
conducted with particular concern for accuracy, detail completeness and
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quality, since these documents are likely to be subject to close scrutiny
by responsible parties and the court. The NEIC has developed inspection
and analysis procedures to assure high quality evidence and documentation
for trial.
Observance of NEIC procedures assures a consistently high quality of
evidence, and should be followed by EPA employees, other federal agencies,
contractors, and State agencies which have entered into an EPA cooperative
agreement for response using CERCLA funds.
Third, for ease of assembling the case and presenting it for trial,
the following people should be identified by name, relevant qualifications
or connection to the case, and information about how to contact them in
the future: 1) persons who participated in the site inspection, sampling,
analysis or photography, 2) persons who may have historic or current
information from personal observation, 3) people who gave or refused to
give statements.
B. Evidence of Responsibility of Defendant(s)
In most cases, the liability of defendants will be demonstrated by
establishing the elements in subsections (1)-(4) of Section 107(a). EPA
personnel have a variety of techniques to gather evidence connecting the
hazardous substance with the potentially responsible party or parties.
For example, a deed or lease evidences the responsibility of owner or
operator of the site. Less formal evidence can also be helpful in tracing
responsibility. The operator's presence at the site over a period of time
will usually be noted by employees, neighbors, law enforcement officers,
competitors or others close to or interested in such activities. Those
observations should be recorded in signed statements or affidavits. In
addition, the activities of operators of a site may require a license or
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permit under State or local laws and regulations. The appropriate
agencies should be consulted to determine whether they have any record of
activities by an operator of the site.
The problem of linking a transporter or generator of a hazardous
substance to a site is frequently a more difficult undertaking.
The following detection sources may prove fruitful. Often, operators,
generators, and transporters have records of business transactions. Drums
located on-site may bear labels or markings with the name of a generator;
these drums or labels should be preserved, if possible, or photographed,
and the photographs labeled for identification and future use as possible
evidence. Under certain circumstances the case development team may
decide to perform a chemical analysis of the waste to assist in
establishing the similarity between the wastes and a particular company's
process. 9/
9/ Information on the composition of waste streams associated with
various industrial processes may be obtained from the Hazardous
and Industrial Waste Division ( WH-565 ), Office of Solid Waste,
U.S. Environmental Protection Agency, 401 M Street, S.W.,
Washington, D.C. 20460.
( Information regarding parties and sites may also be obtained by use of
letters issued under authority of RCRA Section 3007 and CERCLA Section
104(e) ).
Again, local residents, law enforcement officials or competitors may
be sources of information on transporters of material to the site or in
the general vicinity. Employees or former employees of a generator or
transporter may be willing to discuss the disposal practices of their
employers, and if so, signed statements or affidavits, if possible, should
be obtained from them.
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C. Evidence That Removal or Remedial Action Taken By the U.S. or
State Is Not Inconsistent With The National Contingency Plan
Pursuant to Section 104 of CERCLA, after information is gathered that
a release has occurred or is threatened, a variety of actions may be taken
by EPA or a State. Among those actions are:
(i) Investigations, monitoring, surveys, testing and other
information gathering as may be necessary and appropriate to identify the
existence and extent of the release or threat thereof, the amount, source
and nature of the hazardous substances, and the extent of danger to public
health, welfare or the environment. In addition, such planning, legal,
fiscal, economic, engineering, architectural and other studies or
investigations may be undertaken as necessary and appropriate to plan and
direct response action;
(ii) "Removal actions", as the term is defined in Section 101(23) of
CERCLA, and which includes, without limitation, security fencing,
provision of alternative temporary water supplies, and temporary
evacuation and housing of threatened individuals. In addition, EPA may
take such other action as may be necessary to prevent, minimize or
mitigate damage to public health, welfare or the environment, such as
removal of materials, temporary diking and other easily accomplished
actions; and
(iii) "Remedial Actions", as the term is defined in Section 101(24) of
CERCLA, including installation of a clay cover, dredging or excavations,
collection of leachate and runoff, on-site storage, treatment or
incineration, provision of alternative water supply and clean-up of
released hazardous substances. Subject to some restrictions, it may also
include permanent relocation of residents and business and community
facilities, and off-site transportation, storage, treatment or disposal of
hazardous substances.
In a cost recovery action, two factors are important in the
development and preservation of evidence regarding the appropriateness of
the action taken by EPA or the state. These factors are:
A. The action was not outside what CERCLA allows.
B. The action taken must be "not inconsistent" with the NCP.
Therefore, the NCP should be referred to and all persons involved in the
decision-making process should be familiar with its requirements and
limitations before decisions regarding actions are made. 10/
10/ The National Contingency Plan is published in 40 CFR Part 300,
47 Fed. Reg. 31180 (July 16, 1982).
Those decisions should be documented by notes, memoranda, letters and
other written records maintained in the appropriate files.
Under the NCP, remedial actions must also be shown to provide a cost-
effective response. A cost-effective remedy is one which, among the
alternatives examined, is least costly but technologically feasible,
reliable and adequately protects public health and the environment. In
addition, under the Section 104 (c)(4) balancing test, the Agency should
document remedial actions to refute any claims that the remedy was not
cost-effective. Measures of cost-effectiveness includes the protection
afforded public health, welfare and the environment by the remedy. In
"immediate removal" actions it will be especially important to document
the circumstances which justify the need for immediate action. As
provided in Section 300.65 of the National Contingency Plan, an immediate
removal is appropriate when the lead Agency determines that the initiation
of immediate removal action will prevent or mitigate immediate risk of
harm to human life or health.
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Immediate removals are appropriate in such situations as: 1) human,
animal, or food chain exposure to acutely toxic substances; 2)
contamination of a drinking water supply; 3) fire and/or explosion; or 4)
similarly acute situations.
Evidence of the cost-effectiveness of a particular remedial action may
be demonstrated by the following evidence which is contained in summary
form in the record of decision:
o studies showing the technical feasibility and probable cost
of alternative remedial actions on the particular site;
o information that shows the degree of risk to public health,
welfare and environment presented by the particular site
( i.e., population threatened, media affected, toxicity of the
hazardous substance involved, etc. );
o other documentation generated in consideration of the various
factors required by Section 300.68 of the NCP.
All such evidence should be documented by written studies, reports,
letters, memoranda, notes, minutes of meetings and any other record of the
relevant bases for taking a particular remedial action.
D. Proof of Costs of Removal or Remedial Action by the U.S. or a State
Collecting evidence of costs of removal or remedial action taken on a
site is likely to be a time consuming task. Documents must be obtained
from a variety of participants in the cleanup activity: agencies,
contractors, and others. The success of government cost recovery actions
depends upon the use of good bookkeeping and record collection techniques.
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Certain costs expended on removal and remedial action are not
recoverable. For example, no recovery under CERCLA is permitted where
response costs resulted from application of a FIFRA-registered product
(see Section 107(i)), or from a Federally-permitted release (see Section
107(j)). In borderline cases, it should be assumed that removal and
remedial action costs are recoverable and records developed and maintained
with this expectation.
A variety of mechanisms are available for tracking costs. While EPA
prefers the uniformity of a single accounting system, the particular
method of accounting may vary if it ensures accurate record keeping and
preservation of all costs attributable to a particular site. To further
this objective, cooperative agreements between EPA and a State, or
contracts between EPA and a contractor for performance of response
activity on a site, should specifically require that accounting procedures
used by the State or contractor be approved by EPA.
An accounting and expense-tracking system is already in place at EPA,
and should be followed closely by all EPA personnel, contractors and State
agency personnel working on CERCLA-funded sites. This system generally
involves the assignment of a unique accounting number to each specific
site, and the charging of time, material and other expenditures to that
account number. The site number is assigned by Headquarters based on a
request from the Regional Office and confirmation of an approved Federal
response.
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In addition, activity codes have been devised under which different
activities and phases of site clean-up and remedial action may be
described. Questions regarding the specifics of these accounting
procedures should be directed to the Financial Management Center in the
Office of Emergency and Remedial Response ( FTS 382-2208 ).
Evidence of the cleanup costs should be preserved and available for
introduction into evidence. This could include such documentation as
receipts for money paid for goods or services; cancelled checks; contracts
and any amendments thereof; purchase orders; invoices; records of time
spent, where the claim includes the value of such time; travel records and
vouchers; and records of all correspondence or other communication
regarding the actual costs, as well as progress reports on the work
performed. The names, addresses and telephone numbers of all persons
maintaining the regular business records of contractors, agencies or
persons outside EPA should also be maintained for ready reference. 11/
11/ The Emergency Response Division of the Office of Solid Waste and
Emergency Response of EPA is developing a field manual entitled
"Cost Control Management for Superfund Removal" for immediate and
planned removal actions. This manual presents a management system
for On-Scene Coordinators for controlling, verifying, and documenting
all costs incurred in a removal action.
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IV. PROCEDURAL ISSUES
A. Timing of the Cost Recovery Proceeding
While the Office of Waste Programs Enforcement will work with the
Regional Program Office in setting priorities for cost recovery, the
following basic timing guidelines are offered. Cost recovery actions for
expenses incurred in immediate or planned removals will normally not be
initiated until after such response activity has been completed, since the
time required for those activities is relatively short. However, a cost
recovery action need not be delayed where the Agency establishes a
multiphase response action ( e.g., surface clean up, groundwater clean up ).
A cost recovery action can begin before completion of the last phase of
response activity for costs expended to date and also for calculable
future costs.
Where one stage of cleanup follows another in fairly rapid succession,
cost recovery actions should be initiated after the cleanup is fully
completed. In situations where there are substantial delays between
phases, however, the Agency may decide to commence a recovery action at an
intermediate stage. In these instances, negotiations regarding recovery
of expenditures may be combined with discussions with responsible parties
over prospective cleanup activities. Generally, an action will not be
filed for recovery of a remedial investigation/feasibility study or the
cost of design prior to the filing of an action for recovery of
construction costs.
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B. Statute of Limitations
CERCLA does not contain a time limitation provision within which a
cost recovery action must be brought. In the absence of a specific
statutory provision, the Federal statute of limitation would apply. There
is some doubt at this time as to precisely which limitation period will be
applied to a cost recovery action. Limitations for actions brought by the
United States for money damages are contained in 28 USC Section 2415,
which distinguishes between actions based in tort or in contract. Because
cost recovery actions are essentially quasi-contractual actions in the
nature of restitution, a six year statute of limitations if any, should
apply. However, since it is possible that a court may see CERCLA actions
arising out of the tortious conduct of others, cost recovery actions
should be brought within three years after the right of action accrues.
The date the cause of action accrues is also subject to debate. In
United States v. The Barge Shamrock et al, 635 F.2d 1108, 1110 ( 4th Cir.,
1980 ), cert. den. 102 S.Ct. 125 ( 1981 ), the Fourth Circuit held that a
cost recovery action under the Federal Water Pollution Control Act arising
out of an oil spill first accrued when the government completed the
cleanup operation. On the other hand, a defendant might well be expected
to argue that the cause of action accrues at the time funds are first
expended on the site. In order to avoid argument on this point, and to
eliminate a
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a potential bar to recovery, the Agency should attempt to commence all
cost recovery action within three years of the date dollars are first
expended.
C. Extent of Liability of Responsible Parties
While CERCLA Section 107(a) identifies parties who are responsible for
the costs of response actions at a site, the statute does not expressly
set forth the nature of that liability. Language which imposed "strict,
joint and several" liability on the responsible parties was dropped from
earlier drafts in the final, compromise bill, and replaced with a
definition in Section 101 of "liable" or "liability" which refers to the
standard of liability which obtains under Section 311 of the Federal Water
Pollution Control Act. Section 311 is a strict liability statute.
City of Philadelphia v. Stepan Chem. Co., 544 F. Supp. 1135, 1140.n.4
( E.D. Pa. 1982 ). Moreover, Section 311 imposes joint and several
liability, U.S. v. M/V Big Sam 681 F.2d 432, 439 ( 5th Cir. ), on pet. for
reh., 693 F.2d 451 ( 5th Cir. 1982 ).
The position of EPA is that in appropriate circumstances, joint and
several liability is applicable under CERCLA. This position is supported
by reference to Section 311, by the legislative history of CERCLA, 12/
and by Section 107(e)(2) of CERCLA, which provides that nothing in CERCLA
"shall bar a cause of action that an owner or operator or any other person
subject to liability under this section...has or would have by reason of
subrogation or otherwise against any person."
12/ 126 Cong. Re., S.19964 ( daily ed. Nov. 24, 1980 ); 126 Cong. Rec.,
H.11787 ( daily ed. Dec. 3, 1980 ).
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The Department of Justice has interpreted this section as confirming a
defendant's right of contribution against other responsible parties, which
is only of value to a defendant who has been held jointly and severally
liable. 13/
13/ Letter dated December 1, 1980, from Alan A. Parker, Assistant
Attorney General, Office of Legislative Affairs, to Hon. James J.
Floio, 126 Cong. Rec. H11788 ( daily ed. Dec. 3, 1980 ).
Joint and several liability is traditionally imposed when the actions
of two or more defendants cause a single, indivisible result, ( Prosser,
Law of Torts, ( 4th ed. 1971 ), Sec. 52.) That determination may involve
factual issues. Therefore, where two or more parties in the categories of
responsible parties listed in Section 107(a) contribute hazardous
substances to a facility which are being released, threaten to be
released, or are contributing to the release or threat, the Agency may
argue that those parties are jointly and severally liable for the costs of
responding to that release or threat.
This of course does not foreclose the Agency from entering into
consent decrees or other appropriate agreements with multiple responsible
parties in which they agree to allocate the Agency's response costs among
themselves. The Agency is primarily concerned with achieving cleanup of
hazardous sites, preferably by private action, and there are many reasons
why responsible parties may wish to share the costs. However, this is
primarily a matter for the responsible parties, and if they cannot agree
among themselves on an appropriate allocation of responsibility, EPA
should proceed with legal action on a theory of joint and several
liability.
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D. The Demand Letter
The first formal step in the commencement of a cost recovery
proceeding will be the issuance of a letter of demand from EPA to the
potentially responsible party or parties for payment of costs expended on
the site. A demand letter should be sent to all parties in a case who
have been identified as potentially responsible ( i.e., past and present
owners/operators of a site and generators and transporters who contributed
hazardous substances to a site ), and should be issued after all response
activity has been completed, or at the completion of one phase of a multi
phase response where the entire process will require an extended period of
time.
Before a demand letter is sent, the potential case should be analyzed
for the elements in part III above, including identification of all
potentially responsible parties ( including responsible individuals in
corporations where appropriate ) and assembly of cost information. At the
time the demand letter is sent, the Agency should be able to answer
reasonable questions posed by a recipient of the letter. Regional
personnel should have referred the case to Headquarters ( or recommended
against an action ) and Headquarters staff should have resolved their
position on a referral so that the Government is prepared to file a
complaint if the response to the demand letter is unsatisfactory.
The letter should be issued where response costs have been incurred
under CERCLA, regardless of whether a decision has been made to initiate a
judicial proceeding for cost recovery. The demand letter should contain
the following points:
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. o reference to EPA's authority to administer CERCLA and the
Fund established thereunder ( or reference to authority to
recover costs where the response activities for which
reimbursement is sought occurred prior to CERCLA );
. o the location of the site;
. o the presence of a hazardous substance which was released or
threatened to be released;
. o in general terms, the dates and types of response activity
undertaken by EPA at the site;
. o any notice given to the recipient prior to or during the
response activity, allowing the recipient the opportunity to
undertake the work or pay the expense of response;
. o the total cost of the response activity 14/ broken down into
general categories;
14/ The amount stated in the demand letter should be the total
obligated by the Agency to be expended on the site, rather
than the amount shown by Agency records to have been
expended on the site at the time the letter is prepared.
This is to avoid problems caused by delays in payment of
response costs after a demand letter has been forwarded
to the responsible party. Even so, available records
should be assembled as soon as possible. Where it is
expected that future costs will be paid ( e.g., in the
next phase of response activity ), the letter should
also clearly state that in addition to the sums already
obligated and spent, the Agency expects to expend
additional sums on the site for which claim will be
made against the responsible party. Of course, in a
judicial proceeding in the cost recovery action, the
Agency will be required to prove the actual amounts
spent from the Fund.
- 22 -
o a general statement that the Agency believes that the
recipient is a responsible party and liable for the sum
set forth;
o a demand for payment;
o a statement that the recipient of the letter should contact
EPA within a specified period (normally thirty days) to
discuss the account and the recipients's liability therefor;
o a warning that if recipient fails to contact the Agency
within the specified time, a suit may be filed in the
appropriate U.S. District Court for recovery of the
claim; and
o the name, address and telephone number of a representative
of the Agency who the recipient should contact. A sample
demand letter is attached to this memorandum as Appendix B.
The primary responsibility for preparation of the demand letter will
be in the Regional Program Office. The Regional Program Office should
consult with the representatives from OWPE, Regional Counsel, and Office
of Enforcement Counsel-Waste. The demand letter will be sent through the
Office of Waste Programs Enforcement for the signature of the Director of
OWPE unless that requirement is specifically waived. If a case is
referred to DOJ, the DOJ case attorney should sign the demand letter.
E. Procedure In Event of Response From Potential Defendant
In many cases, the recipients of demand letters will contact the
Agency and express interest in discussing their status as a responsible
party. The Agency encourages such negotiations.
- 23 -
CERCLA money is limited; Agency cleanup activities deplete the fund and
money must be recovered from the parties responsible for the release or
threat of release. Therefore cost recovery through negotiation or
litigations is necessary to clean up the greatest number of sites. Cost
recovery should involve the coordinated efforts of knowledgeable legal and
technical personnel at both the Regional and Headquarters offices as
explained below.
1. Negotiating Teams and Procedures
Upon receipt of a response to the demand letter from a potentially
responsible party, the contact person named in the demand letter will
notify the Associate Enforcement Counsel for Waste, the Regional Counsel,
the Director of OWPE and the Regional Superfund office. Each of those
offices will, upon notification, identify the person who will represent it
on the negotiating team. ( The Department of Justice may participate in
cases which are likely to result in consent decrees or litigation. )
The formulation of the Agency's position results from the
collaboration of the Team. In some policy decisions the entire Team has
relevant background to participate in the decision making process.
However the specialized legal or technical talent on the Team should be
efficiently used.
The Team has the responsibility for developing a proposed negotiating
schedule. The proposed schedule should have the concurrence of the
Associate Enforcement Counsel for Waste and the Director, OWPE in cases of
national significance.
- 24 -
Some factors which should be considered in the development of this
schedule are the number of potentially responsible parties who will take
part in the negotiations; the nature of the potential defenses; the amount
of available data linking particular parties to the site; the amount of
the claim, and other related matters. Sufficient time should be allowed
for the negotiation process to take place, but it is important that a
deadline be established as a goal for achieving a settlement, and beyond
which the negotiations will not continue, absent clear indications that a
settlement is imminent. A reasonable period of time for most negotiations
is 60-90 days; negotiations should not be extended without Headquarters
approval. A referral should be submitted by the Region and approved by
Headquarters, and a complaint should be prepared and approved by the
Department of Justice, prior to the conclusion of negotiations so that an
action may be filed if negotiations are not resolved by the deadline.
a. Case Team Leader. Contemporaneous with the formation of the
Negotiating Team Regional and Headquarters program managers, in
consultation with OLEC, will select a program official to serve as the
Case Team Leader. The Case Team Leader's function will be to:
o focus efforts to develop, in advance of negotiations, the
Agency's negotiating strategy and position on issues that
may arise during the course of the case;
o ensure the coordination of legal and technical staff
participation on the team by scheduling and chairing
regular case review sessions; and
o define the Agency's objectives in accordance with applicable
Agency guidances and policies.
- 25 -
On occasion, the Team may be unable to develop a consensus on a cost
recovery issue. When this occurs, the Case Team Leader will prepare a
written explanation of the issue for resolution by the appropriate
supervisory staff.
b. Lead Negotiator. Regional Counsel and Headquarters Enforcement
Counsel managers, in consultation with the Director of OWPE, will select
the lead Agency attorney for the case.
Although a Regional Counsel attorney will usually be designated as the
lead Agency attorney, in cases of national significance or which may be
precedent-setting an attorney from OEC-Waste may be selected. The extent
of Headquarters involvement will be decided on a case-by-case basis by the
Assistant Administrator for Enforcement, (or the Special Counsel for
Enforcement until the Assistant Administrator position is established).
The Department of Justice should also be consulted and invited to
participate in negotiations of cases which are likely to result in a
consent decree or litigation, particularly in multiparty and complex
cases.
The Team's lead attorney will be responsible for conducting cost
recovery negotiations. Although the attorney is primarily responsible for
explaining and defending the Team's position during negotiations, he or
she may request other Team members' assistance in articulating the Team's
position to opposing parties.
At the initial negotiation session, the lead attorney should inform
opposing parties that while the Team has authority to negotiate, any
agreements are subject to the approval of Enforcement Counsel and OSWER.
The opposing parties should also be advised that the Agency has
established a deadline for settlement. The deadline should be disclosed
to the responsible parties. After the deadline, the Agency will take
judicial action.
- 26 -
2. Form of Settlement Agreement
CERCLA allows the Agency several ways the Agency could settle a cost
recovery action:
o a consent decree
o an administrative order
o a memorandum of agreement.
However, as a matter of policy, the Agency has decided that a consent
decree is required in most cases. A forthcoming policy will set out the
requirements for using consent decrees and another one will address
administrative orders.
Again, it should be pointed out that the negotiating Team is not
authorized to enter into a binding agreement of any type with the
responsible parties in the absence of specific authorization from the
Enforcement Counsel and OSWER. Consent decrees must also be approved by
the Department of Justice and the reviewing court ( after a thirty day
public comment period ). A draft of any document which is to be the
subject of negotiation should, of course, be reviewed before commencement
of negotiations by appropriate supervisors of the negotiating Team at the
Region and Headquarters, and any document which the negotiating Team and
their supervisors believe to be acceptable for settlement should be
forwarded to the Assistant Administrator for Enforcement, the Director of
OWPE and the Department of Justice at the earliest possible time to allow
for adequate review.
The Agency may allow some settlements in which the responsible party
agrees to pay the claim in periodic payments where the party is unable to
pay in a lump sum, or where there is other legitimate reason for delayed
payment. Before considering installment payments, however, the Economic
- 27 -
Analysis Division of the Office of Policy and Resource Management ( FTS
382-2764 ) and the Financial Management Division of the Office of
Administration ( FTS 382-5135 ) should be consulted in order to obtain a
review of the financial condition of the responsible party and to
determine any applicable interest charges.
Payment of cost recovery claims should be made payable to the U. S.
Environmental Protection Agency and should be mailed to:
U.S. Environmental Protection Agency
Accounting Operations Office
P.O. Box 2971
Washington, D.C. 20013
Attn: Collection Officer for Superfund
The check or other form of payment should specify the name of the site at
which the activity took place. The lead attorney is responsible for
furnishing copies of judgments, decrees or agreements for payment of cost
recovery claims as early as possible to Financial Reports and Analysis,
Room 3617M, U.S. EPA, 401 M Street, Washington, D.C. 20460, for
establishment of a proper account.
F. Procedure in Event of No Response to Demand Letter
If no response is received to the demand letter, a final determination
must be made of whether the facts of the case justify the Agency taking
further steps to pursue the cost recovery claim. A decision whether the
case should be referred to DOJ should be made by the Region as well as
staff at Headquarters at the time the demand letter is drafted. This
decision will initially be made by the Regional Administrator, based on
the recommendation of the Regional Superfund Office and the Regional
Counsel.
- 28 -
Relevant factors to consider include:
. a) the strength of evidence connecting the potential defendant(s);
b) the availability and merit of any defense. Possible defenses
under Section 107 of CERCLA are generally that the release
and consequent response action was the result of:
(1) an act of God;
. (2) an act of war; or
(3) an act or omission by an unrelated third party as to whom
the owner/operator had no contractual relations and did not
fail to exercise appropriate care against the foreseeable
acts and omissions of that third party.
. c) the quality of release, remedy and expenditure documentation by
the Agency, a state or third party;
d) the financial ability of the potential defendant(s) to satisfy
a judgment for the amount of the claim or to pay a substantial
portion of the claim in settlement; and
e) the statute of limitations.
In considering the ability of the potentially responsible party or
parties to pay, the Regional Offices should make use of the Financial
Assessment System, developed by the Economic Analysis Division of the
Office of Policy and Resource Management and managed by NEIC, to assess
the financial condition of most potentially responsible parties.
The determination of the Regional Administrator to initiate a cost
recovery action shall be forwarded by a memorandum from the Regional
Administrator to the Assistant Administrator for Enforcement for
concurrence in the same manner as the referral of other matters for
litigation. A decision not to initiate a cost recovery action must be
reflected in a memorandum to OWPE. An affirmative decision must be made
- 29 -
by the Regional Administrator in each case in which CERCLA funds are
expended, whether that decision be to proceed or not to proceed. This is
necessary because of the Agency's accountability for management of the
Fund.
After OEC concurs on pursuing the cost recovery action, OEC refers the
case to the Department of Justice, together with the names of the
appropriate Headquarters and Regional personnel who will be involved in
the case. If the Department of Justice fails to concur, the originating
Regional office is advised of such non-concurrence, together with the
reasons therefor, and recommendations as to whether additional information
would be provided for DOJ's reconsideration. Even though a Region may
recommend against pursuing a cost recovery action, the Assistant
Administrator for OSWER may decide on his own initiative that such an
action is warranted. This recommendation would then be sent to OEC for
consideration.
G. Maintenance and Coordination of Evidence in Event of Referral
There will inevitably be logistical difficulties in maintaining and
coordinating the production of the mass of data, contracts, cost records,
and other evidence generated in a response activity. It is very important
to provide for an orderly method of expeditiously providing that
information during the course of a cost recovery action for use during
case development, discovery, and trial.
- 30 -
Each Agency, office, contractor or other person participating in a
CERCLA response activity should maintain documents related to the activity
for a period of not less than six (6) years after all response activities
are finished (consult Appendix C for a list of these necessary
documents). 15/
15/ The period of six years is necessary because of the possibility
that the claim may not accrue upon the first expenditure.
Additionally the litigation may be protracted; documents must be
kept for the term of the litigation.
The Agency's Financial Management Division will maintain and
periodically update the cost expenditure tracking system for each site
referred to above, so that an itemization of all costs attributable to a
particular site can be quickly obtained. When a determination is made
that a case should be referred to the Department of Justice for filing
( or, if necessary, during the time that the demand letter is being
prepared or the case is being considered for referral ), a request can be
made of the persons, firms or agencies involved in a response activity for
copies of its records. At that time, a complete file of all records
involved in the particular case can be compiled and delivered to DOJ, with
copies of the complete file made available to appropriate Regional and
Headquarters legal and technical personnel.
- 31 -
V. Note on Purposes and Use of This Memorandum
The policy and procedures set forth herein, and internal office
procedures adopted pursuant hereto, are intended solely for the guidance
of attorneys and other employees of the U.S. Environmental Protection
Agency. They are not intended to nor do they constitute rule-making by
the Agency, and may not be relied upon to create a right or benefit,
substantive or procedural, enforceable at law or in equity, by any person.
The Agency may take any action at variance with the policies or procedures
contained in this memorandum, or which are not in compliance with internal
office procedures that may be adopted pursuant to these materials.
We trust that this memorandum generally covers the subject of
procedures to be involved in cost recovery actions under CERCLA, but if
you have any questions or problems involving this subject matter, please
call Russell B. Selman, Office of Legal and Enforcement Policy, at FTS
426-7503.
Appendix A
Costs Recoverable Under CERCLA
In order to identify records which must be developed and maintained
for a cost recovery action, it is essential to know those costs which may
be recovered from a responsible party. Various sections of CERCLA provide
for recovery of certain elements of costs expended for site clean-up. We
have attempted below to compile a list of those costs which are
recoverable, and the sections of CERCLA which authorized recovery of those
costs. This list is very general and not exclusive.
The listed costs are in general categories, using language directly
from CERCLA, and a determination will necessarily have to be made in each
case whether a particular expenditure is within the categories of
recoverable costs. In this regard, EPA's position is that the intent of
Congress was to authorized recovery of all costs directly related to
clean-up of a site, and therefore the costs should be broadly construed to
fall within these categories.
Cost CERCLA Section
1. Investigations, monitoring, surveys, Sections 104(b), 107
testing, and other information- (a)(1)(4)(A) ( providing
gathering necessary or appropriate for recovery of costs
to identify the existence and extent for removal actions,
of the release or threat thereof, the which, as defined in
source and nature of the hazardous Section 101(23) include
substances, pollutants or contaminants actions taken under
involved, and the extent of danger to Section 104(b) ).
the public health, welfare or the
environment.
2. Planning, legal, fiscal, economic Same
engineering, architectural, and
other studies or investigations
Appendix A
-ii-
necessary or appropriate to plan
and direct response actions.
3. Planning, legal, fiscal, economic, same
engineering, architectural and
other services necessary to recover
the cost of response actions.
4. Planning, legal, fiscal, economic, same
engineering, architectural and
other services necessary to enforce
the provisions of the Act ( CERCLA ).
( This could include costs incurred
in prosecuting an imminent
endangerment action under Section
106 ).
5. All costs of (A) removal and (B) Section 107(a)(4)(A)
remedial action incurred by the U.S.
Government or a State not inconsistent
with the NCP. Actions for which such
costs may be incurred are
(A) Removal Actions ( Section 101(23) ):
. (1) the clean-up or removal of
released hazardous substances
from the environment;
. (2) such actions as may be
necessary taken in the event
of the threat of release of
hazardous substances into the
environment;
. (3) such actions as may be necessary
to monitor, assess or evaluate
the release or threat of release;
. (4) the disposal of removed material;
. (5) such other actions as may be
necessary to prevent, minimize or
mitigate damage to public health,
welfare or the environment which
may otherwise result from a
release;
. (6) any monitoring to assure actions performed
by other parties adequately protect public
health, welfare and the environment, and
meet EPA criteria;
Appendix A
-iii-
(7) Specific examples contained in
Section 101(23) ( without limitation ):
. a. security fencing or other
measures to limit access;
. b. provision of alternative
water supplies;
. c. temporary evacuation and housing
of threatened individuals
. d. action taken under Section 104(b)
of CERCLA;
. e. any emergency assistance provided
under the disaster Relief Act of
1974.
(B) Remedial Actions ( Section 101(24) ):
. (1) actions consistent with permanent
remedy taken instead of or in
addition to removal actions, to
prevent or minimize the release
of hazardous substances into the
environment so that they do not
migrate to cause substantial danger
to present or future public health,
welfare or the environment.
. (2) Specific examples contained in Section 101(24)
( without limitation ):
. (a) storage;
. (b) confinement
. (c) perimeter protection using
dikes, trenches or ditches;
. (d) clay cover;
. (e) neutralization;
. (f) cleanup of released hazardous
substances or contaminated
materials;
. (g) recycling or reuse;
Appendix A
-iv-
. (h) diversion;
. (i) destruction;
. (j) segregation of reactive wastes
. (k) dredging or excavation;
. (l) repair or replacement of
leaking containers;
. (m) collection of leachate and runoff;
. (n) on-site treatment or incineration;
. (o) provision of alternative water
supplies;
. (p) any monitoring reasonably required
to assure that such actions protect
public health, welfare and the
environment;
. (q) costs of permanent relocation of
residents, businesses and community
facilities ( where relocation, alone
or in combination with other factors,
is more cost-effective than and
environmentally preferably to
transportation, storage, treatment
or disposal off-site of the
hazardous substances ).
(3) Remedial actions do not include:
. (a) off-site transportation of hazardous
substances;
. (b) off-site storage, treatment or
disposal of hazardous substances;
unless it is determined that such actions are
(A) more cost-effective than other remedial
actions; (B) will create new capacity to manage
( in compliance with Subtitle C of RCRA ) hazardous
substances in addition to those at the affected
site; or (C) are necessary to protect public
health, welfare or the environment from a present
or potential risk which may be created by further
exposure to the continued presence of the
hazardous substances.
Appendix A
-v-
6. Any other necessary costs of response Section 107(a)(4)(B)
incurred by any other person consistent
with the NCP. "Response" actions
include both "removal" and "remedial"
actions ( Section 101(25) ). (See list of
removal and remedial actions above.)
7. Damages for injury to, destruction of, Section 107(a)(4)(C)
or loss of natural resources, including
the reasonable cost of assessing such
injury destruction or loss. (See note,
below)
"Natural resources" include ( Section
101(16) ):
. (a) land;
(b) fish;
(c) wildlife;
(d) biota;
. (e) air;
(f) water;
(g) groundwater;
(h) drinking water supplies;
. (i) other such resources belonging
to, managed by, held in trust
by, appertaining to, or otherwise
controlled by the United States,
any state or local government, or
any foreign government ( includes
resources of the Fishery Conservation
and Management Act of 1976 ).
NOTE: CERCLA Section 301(c) provides for the promulgation of regulations
not later than two years after enactment of the Act for the assessment of
damages for injury to destruction of or loss of natural resources
resulting from a release of a hazardous substance. See footnote 3 in the
Memorandum for further explanation on recovery of these damages.
Appendix B
( Model Demand Letter )
XYZ Corp.
Someplace, State 00000
Re: Name, location of site
Dear Sir or Madam:
On or about ____________, 198_, there were releases and
threatened releases into the environment of hazardous substances
(and pollutants and contaminants) from the _____________ facility located
at or about ____________. (In addition, there were releases and
threatened releases of pollutants and contaminants that may present an
imminent and substantial danger to the public health or welfare.)
(On or about ________, 19__, EPA gave (oral) notice to you
_____________ (which was confirmed)by letter of _____________, 19__,
advising you regarding the referenced facility and that you are a party
who may be liable for money expended by the government to take corrective
action at the facility. EPA offered you the opportunity to discuss with
EPA your voluntarily taking action necessary to abate any releases or
threats of releases of hazardous substances (and pollutants and
contaminants) from the facility. You did not undertake the necessary
actions.)
In accordance with the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA), 42 U.S.C. Section 9601 et seq.,
(and other authorities (insert where pre CERCLA or non CERCLA
expenditures)) the (State of _________, pursuant to an agreement with and
funding by the (insert if State lead)) United States Environmental
Protection Agency (EPA undertook response action using funds provided for
such actions. The action began on or about _______________ and continued
to on or about ____________________. EPA's response action entailed the
(describe generally what was done).
The cost of the response action (performed) (caused to be
performed by EPA at the facility) (was) (is currently) approximately
$__________. (Insert the amount obligated by the Agency to be expended on
the site, not the amount actually expended according to Agency records.)
(The Agency anticipates expending additional funds in the future under
authority of CERCLA for additional response activity which the Agency
deems appropriate to be performed at the site.) Enclosed is a statement
summarizing the expenditures to date.
- 2 -
Information available to EPA indicates among other things that
you (choose one or more, of the bracketed clauses action the
owner/operator of the facility) (were the owner/operator of the facility
at the time of disposal of hazardous substances at the facility) (did, by
contract, agreement or otherwise, arrange for disposal or treatment, or
arranged for transport to the facility which was selected by you).
Pursuant to the provisions of Section 107(a) of CERCLA (and other
authorities (insert where pollutants or contaminants involved and where
other law involved)), we believe that you are liable for the payment of
all costs expended on the site to the Hazardous Substance Response Trust
Fund established pursuant to Section 221 of CERCLA, which is administered
by EPA.
We hereby request that you (or a group of parties potentially
responsible for the site) make restitution by payment of the herein stated
amount plus interest (together with any sums hereafter expended by the
Agency on the site pursuant to authority of CERCLA). (The names of other
potentially responsible parties receiving this request for payment are
enclosed with this letter to facilitate organization among the identified
parties concerning payment.) If you (or an organized group of potentially
responsible parties) desire to discuss your liability with EPA, please
contact the person named below in writing not later than thirty (30) days
after the date of this letter. We will otherwise assume that you have
declined to reimburse the Fund for the site expenditures and will
subsequently pursue civil litigation against you.
Sincerely,
Contact Person:
(Name)
(Title)
(Address)
cc: Enforcement Counsel
Regional Counsel
State Agency
Appendix C
The following pages constitute a search guide that may be used by the
Regional enforcement program in gathering documentation to support a cost
recovery action. The search guide format is a chart with four columns,
headed as follows: "Document", "Originator", "EPA Contact" and "Regional
File Location". */
*/ The fourth column, "Regional File Location", has meaning only if the
Region uses the filing system described in Appendix E.
All of the documents listed will probably not be available in all cases,
nor will each one necessarily enhance the body of evidence in every case.
It must be decided on a case-by-case basis exactly which pieces of
documentation should be used as supporting evidence. The search guide was
meant to be an exhaustive list of documents that should be considered. It
is suggested that the persons conducting the file search for supporting
documentation pull out each document on the list if it is available. It
can be decided at a later time which of the documents are useful as
evidence given the facts of the particular case.
Please note that the search guide covers only documents that would be
useful in supporting the first three elements of proof discussed in this
guidance: proof of the release, link between the party and the site and
consistency with the NCP. Cost documentation will be the subject of
another guidance document that is currently under development.
Evidence of a Release or the Threat of a Release
Document Originator EPA Contact Probable File Location
o Notification o Owner/Operator o National o NCR (see page 21,
Record of facility Response #1, bullet #1)
pursuant to Center (NRC)
Sec. 103(a) o Gov't. officials
of CERCLA responding to the
problem (Local,
State or Federal).
o Notification o Owner/operator o EPA-Regions o Remedial Response:
Record of facility Discovery/Hazard
pursuant to o EPA-HQ- Ranking File/
Sec. 103(c) o Appropriate Hazardous Regions/HQ
of CERCLA Fed. officials Site Control
Division
o Record of o NRC
notification o EPA-Region, OSC
of EPA-HQ- o EPA-HQ-Emergency
Emergency o EPA-R.A. Response
Response Division Removal
Division, o EPA-HQ- Response File
EPA Regional Emergency
Administrator Responsible
or other EPA Division
official .
o Compliance o Federal/State o EPA-Region o Remedial Response:
Investigation investigator CERCLA Enf./ Discovery/Hazard
Report Compliance Ranking File
pursuant to Project Manager
statutory
authority o State Enforcement/
(e.g., Sec. Compliance Agency
3013 of RCRA) .
* Unless otherwise noted, this assumes the documents are located in the
Regional files and assumes the Regions are using the file structure
outlined in Appendix E.
- 2 -
I. Evidence of a Release or the Threat of a Release (continued)
Document Originator EPA Contact Probable File Location
o Notes from o Gov't Officials o EPA-Region, o Remedial Response:
phone calls, (Local, State, Enf./Compliance Discovery/Hazard
correspondence, Federal) Project Manager Ranking File
photographs,
or other o Public o State Enf./
form of Compliance Agency
random or
incidental o Municipal
observation Government Office
(e.g., Public
Health or Police
Dept.) .
o Signed o Owner/ o EPA-Region, o Remedial Response:
witness Operator Waste Mgt. Discovery/Hazard
statements Facility Division Ranking File
(describing Proj. Manager
the o Employees or
conditions Contractors o State Agency
leading up assoc. w/
to the facility
release
and the o Federal/State
release Investigators
o Local Officials
o Public
- 3 -
I. Evidence of a Release or the Threat of a Release (continued)
Document Originator EPA Contact Probable File Location
o Photographs, o Owner/Operator o EPA-Region, o Remedial Response:
drawings or Employee of Waste Mgt. Imagery or
depicting Facility Division Discovery/Hazard
site Project Ranking File
conditions. o EPA-OSC/ Manager
Response
Team
o REM/FIT
Contractors
o Local Officials
o Public.
o Maps and o EPA-NEIC o EPA-Region, o Remedial Response:
photographs Waste Mgt. Imagery File
(including o EPA
aerial Environmental Env. Services
and other Photographic Div. Project
remote Interpretation Manager
sensing Center-
techniques) Warrenton, Va. o State Agency .
o Documents o Owner/Operator o EPA-Region, o Remedial Response:
relating to of the Facility Mgt. Division Discovery/Hazard
the physical or Env. Ranking File
lay-out of the Services Div.
facility (e.g., Project
blueprints, Manager.
pipe location
diagrams, o State Agency
security
provisions,
monitoring
well locations,
etc.).
o Documents o Owner/Operator o EPA-Region, o Remedial Response:
relating to of the Facility Waste Mgt. Discovery/Hazard
procedures, Div. Project Ranking File
management o Employees of Manager
practices the Facility
used at the o State Agency
facility.
- 4 -
I. Evidence of a Release or the Threat of a Release (continued)
Document Originator EPA Contact Probable File Location
o Documents o EPA-OSC/Resp. o EPA-Region, o Remedial Response:
relating to Team Waste Mgt. Discovery/Hazard
test results Division/Env. Ranking File
(e.g., flash o State-OSC/ Services
point) and Response Division
multi-media Team Project
environmental Manager
sampling and o REM/FIT
analysis Contractor
o Laboratory.
oo Documentation o EPA-OSC/Resp. o EPA-Region, o Remedial Response:
of Team Waste Mgt. Discovery/Hazard
information Division/Env. Ranking File
used to o State-OSC/ Services
determine Response Division
sampling Team Project Manager
locations,
frequency o REM/FIT
and types Contractor.
(water, soil,
air, wildlife, o Laboratory
leachate,
hazardous
wastes from
containers.
oo Summary o Same as above o Same as above o Same as above
charts or
interpretive o EPA-Regional
reports Tech.
regarding
the analytical o Staff
data.
o State Agency Tech.
Staff
oo Affidavits o Same as above o Same as above o Same as above
prepared by
field and
laboratory
staff
indicating
all procedures
and protocols
followed
(including
health and
safety
consideration).
- 5 -
I. Evidence of a Release or the Threat of a Release (continued)
Document Originator EPA Contact Probable File
Location
oo Documents o NEIC o Same as above
relating to
Evidence
Audits by
Contractor
Evidence
Audit Teams
(CEAT).
oo Chain of o Regional Office
Custody Files
Documents.
o Documents relating o Owner/Operator o EPA-Region, o Remedial
to topographic of the Facility Waste Mgt. Response:
hydrogeological, Division Discovery/
ecological or o Local/State or Env. Hazard
demographic Agencies Services Ranking File
information in (e.g., Housing Div. Project
the vicinity of or Transportation Manager
the facility (e.g., Authority,
studies, reports, Planning Commission.
articles, field
observation notes) o Federal Agencies
(e.g., Weather
Bureau, USGS,
Soil Conservation
Service, NOAA, DOT
Army Corps of
Engineers, Coast
Guard, etc.).
o Local libraries
o Local Universities/
Colleges
o Public
o Federal/State/Local
Officials or
Investigators.
o REM/FIT Zone
Contractor
o EPA or State OSC
- 6 -
I. Evidence of a Release or the Threat of a Release (continued)
Document Originator EPA Contact Probable File
Location
oo Documentation o Same as above o Same as above o Same as above
of physical
characteristics
of each geological
strata through
. fields or
oo Documentation o Same as previous o Same as o Same as previous
of physical page previous page
characteristics page
of ea. geological
strata through
field or lab
. testing (e.g.,
permeability,
head measurements
oo Documentation o Same as above o Same as above o Same as above
supporting
groundwater
and surface
water flow
estimates
(rates and
. directions)
oo Documentation o Same as above o Same as above o Same as above
of non-drilling
investigative
techniques
(e.g.,
resistivity
or seismic
. surveys)
oo Well logs and o EPA-OSC/Response o EPA-Region, o Remedial
descriptions Team Waste Mgt. Response:
of geological Div. or Env. Discovery/
strata o State-OSC Services Div. Hazard
Response Team Project Ranking
Manager File
o REM/FIT
Contractor o State Agency .
- 7 -
I. Evidence of a Release or the Threat of a Release (continued)
Document Originator EPA Contact Probable File
Location
o Hydrological o EPA-OSC/Response o EPA-Region, o Remedial
Data and Team Waste Response:
Reports. Management Discovery/
o State-OSC/Response Division Hazard
Team or Ranking File
Environmental
o REM/FIT Contractor Service Division
Project Manager
oo Documentation o EPA-OSC/Response o EPA-Region, o Remedial
of information Team Waste Response:
used to Management Discovery/
determine types o State-OSC/Response Division Hazard
of data needed. Team or Ranking File
Environmental
o REM/FIT Contractor Service
Division
Project
Manager.
o State Agency o Remedial
Response:
oo Notification o Owner/Operator o EPA-Region, o Discovery/
Record pursuant of facility Appropriate Hazard
to permit Enforcement/ Ranking File
requirements or Compliance.
other statutory
authority o State Permitting
Agency
o EPA-Regions
- 8 -
I. Evidence of a Release or the Threat of a Release (continued)
Document Originator EPA Contact Probable File
Location
o Routine o Owner/Operator o EPA-Region, Approp. o Remedial
sampling and of the facility Enf./Compliance Response:
analysis data Section Discovery/
(e.g. performed o Generator Hazard
to analyze o State Enf./ Ranking
wastes, to o Transporter Compliance Agency File
assure statutory
compliance such o Contract Laboratory.
as NPDES permit).
Data should include
all field notes,
chain of custody
documents, laboratory
procedures/protocols,
raw data and summaries
of or interpretative
reports about the raw
data.
o Documentation o Public o EPA-Region, Waste o Remedial
of potential Mgt. Div. Project Response:
health or o Physicians Manager Discovery/
environmental Hazard
effects o Local Health o State Agency Ranking
resulting from Officials File
release (e.g.,
interviews, o Local Environmental
physicians' Officials
statements.
o Biological o EPA-OSC/Response o EPA-Region, Waste o Remedial
Inventory Team Mgt. Div. or Env. Response:
of the Affected Services Div. Ranking
area o State-OSC Response Project Manager File
Team
o REM/FIT Contractor o State Agency.
- 9 -
o Literature o EPA-Research Labs o EPA-HQ, OWPE or o EPA-HQ
searches and OERR Management
periodicals o NEIC Information
regarding the o State Agency. and Data
toxicology and o NIH/CDC Systems
chemical Division
properties of o EPA-HQ Library
the hazardous
substances (e.g. o State Agencies
Toxicology Data or Libraries.
Bank (TDB) or
Chemical o Universities
Information
System (CIS) o Research or
Consulting Firms
o List of o May 25, 1983 o EPA-HQ Emergency o EPA-HQ
hazardous or 40 CFR 302. Response Division Docket 102
substances RQ.
(e.g., CERCLA
Se. 102, CWA
Sec. 311, RCRA
Sec. 3001, CWA
Sec. 307, CAA
Sec. 112, TSCA
Sec. 7).
o Hazard Ranking o EPA-Region, o EPA-Region, RSPO o Remedial
Form and Regional Site Response:
supporting Project Officer o EPA-HQ-OERR Discovery/
documents. Hazard
o EPA-Region, Ranking
Waste Management File
Division
Project Manager
o Public comments o Public o EPA-Region, RSPO o Remedial
or record of Response:
public hearing Discovery/
regarding Hazard
Hazard Ranking.
File
- 10 -
I. Evidence of a Release or the Threat of a Release (continued)
Document Originator EPA Contact Probable File
Location
o Documents o Owner/Operator o EPA-Region, o Remedial
relating to any of a Facility Waste Mgt. Response:
insurance Division Discovery/
coverage o Insurance Agent. Project Hazard
carried by Manager Ranking File
facility
o State Agency
o Documents o Counsel for o EPA-HQ, OLEC o Remedial
relating to any Owner/Operator Response:
prior legal of Facility o Regional Enf. Discovery/
actions (e.g., Counsel Hazard
complaints, o Regional Counsel Ranking File
discovery o State Attorney or
documents, court o EPA-HQ, OLEC General's Enforcement
order, settlement Office File
agreements, o U.S. Department
negotiation of Justice
records).
o State Attorney
General's Office
or State Agency
Counsel's Office.
o Documents o Owner/Operator of o EPA-Region, o Remedial
relating to a Facility Waste Mgt. Response:
prior accidents Division Discovery/
(e.g., fires, o Local Public Project Hazard
explosions) or Health Agency Manager Ranking File
medical problems
experienced by o Local Police or o State Agency
employees. Fire Departments
o Employees of a
Facility
- 11 -
II. Evidence Linking Responsible Parties to the Site
A. Owners and Operators
Document Originator EPA Contact Probable File
Location
o Deed, Title o Owner/Operator o EPA-Region, o Remedial
History, of Facility Waste Response:
Mortgage or Management Discovery/
Lien Information o Title Search Division Hazard
on Property Company. Project Ranking File
Manager or Enforcement
o City or County File
Record Office o State Agency
o Bank of Lending o EPA Regional
Institution. Counsel
o EPA Regional
Counsel
o Permits held o Owner/Operator o EPA-Region, o Remedial
by a facility of facility Appropriate Response:
(e.g., NPDES, Enforcement/ Discovery/
RCRA, building o EPA-Region Compliance Hazard
construction) Enforcement/ Section Ranking File
Compliance or Enforcement
Section. o State File
Permitting
o State Permitting Agency
Agency
o Manifests or o Owner/Operator o EPA-HQ, OSW o Remedial
other business of the Facility Response:
records (e.g., o EPA-Region, Discovery/
bills of lading, o Transporter Waste Hazard
contract Management Ranking File
documents with o Generator Division or Enforcement
haulers, Project File
inventory records) Manager.
which provide
information on o State office
quantity and responsible
type of substance. for manifests
o Lease o Owner of o EPA-Region, o Remedial
Property Waste Response:
Management Discovery/
o Operator of Division Hazard
Facility Project Ranking File
Manager or Enforcement
File
o State Agency.
o EPA Regional
Counsel
- 12 -
II. Evidence Linking Responsible Parties to the Site (continued)
A. Owners and Operators (continued)
Document Originator EPA Contact Probable File
Location
o Corporate o NEIC Computer o EPA-Region, o Remedial
structure records Files (SEC and Waste Response:
(e.g., annual Dun & Bradstreet Management Discovery/
reports, Dun & Reports Division Hazard
Bradstreet Project Ranking File
reports, o Owner/Operator Manager or
incorporation of Facility Enforcement
documents). o State Agency File
o Industrial
directories, o EPA-Regional
manuals, etc. Counsel
o Corporate Divisions
of State Secretary
of State Offices
o Small Business
Administration.
o Vehicle o Motor Vehicle o EPA-Region, o Remedial
identification Bureau Waste Response:
information or Management Discovery/
equipment rental o Rental businesses Division Hazard
documents (e.g., Project Ranking File
license or o Vehicle Owner/ Manager or
registration Transporter Enforcement
records, contracts o State Agency File
or lease o Local truckstops
agreements). o EPA-Regional
o Owner/Operator Counsel
or Employee of a
Facility
o Records or other o EPA-OSC/Response o EPA-Region, o Remedial
documents found Team State-OSC/ Waste Response:
at the facility Response Team Management Discovery/
during an Division Hazard
investigation o Federal or State Project Ranking File
(e.g., utility Investigators Manager or
records, tax REM/FIT Contractors. Enforcement
receipts or o State Agency File
certificates,
real estate o EPA-Regional
records, labels Counsel
on containers).
- 13 -
II. Evidence Linking Responsible Parties to the Site (continued)
A. Owners and Operators (continued)
Document Originator EPA Contacts Probable File
Location
o Incident Reports o Local police or o EPA-Region, o EPA-HQ-
(e.g., fires, fire departments Waste Emergency
explosions) Management Response/
o Owner/Operator Division Removal
or Employee of a Project Responce
Facility. Manager File
o State Agency o NCR
o EPA-Regional
Counsel
o EPA-HQ-Emergency
Response Division
o EPA-HQ-Emergency
Response Division.
o Interviews, o Past Employees o EPA-Regional o Remedial
affidavits of Facility Waste Response:
or signed Management Discovery/
statements by o Local Officials Division Hazard
persons with or Residents Project Ranking
knowledge Manager File
regarding o Other Persons or
past activities o EPA-Regional Enforcement
at the site. Counsel File
o State Agency
o Interview notes o EPA-OSC/Response o EPA-Region, o Remedial
from discussions Team Waste Response:
with persons who Management Discovery/
are knowledgeable o Other Federal or Division Hazard
about past site State Investigators Project Ranking
activities such Manager or
as employees, o State-OSC/Response Enforcement
local officials, Team. o State Agency File
residents of the
area, local o REM/FIT o EPA-Regional
industries, etc. Contractors Counsel
o Historical information
documenting period of
activities at the site
o Administrative
information requests
and responses under
RCRA Section 3007 and
CERCLA Section 104.
- 14 -
II. Evidence Linking Responsible Parties to the Site (continued)
B. Generators (continued)
Document Originator EPA Contacts Probable File
Location
o Shipping o Owner/Operator o EPA-HQ, OSW o Remedial
documents, of Facility Response:
manifests or o EPA-Region, Discovery/
other business o Generator Waste Hazard
records (e.g., Management Ranking File
bills of lading, o Transporter. Division or Enforcement
vouchers, Project
contracts with Manager
haulers) which
provide o State Office
information on responsible
responsible for manifests
parties.
o EPA-Regional
Counsel
o Affidavits or o Past Employees o EPA-Region, o Remedial
signed of Facility Waste Response:
statements by Management Discovery/
persons with o Local Officials Division Hazard
knowledge or Residents Project Ranking File
regarding past Manager or Enforcement
activities at o Other Persons. File
the site o EPA-Regional
Counsel
o State Agency.
o Records or o EPA-OSC/Response o EPA-Region, o Remedial
other documents Team Waste Response:
found at the Management Discovery/
facility during o State-OSC/Response Division Hazard
an investigation Team Project Ranking File
(e.g., utility Manager or Enforcement
records, tax o Federal or State File
receipts or Investigators. o State Agency
certificates,
real estate o REM/FIT o EPA-Regional
records, labels Contractors Counsel
on containers)
- 15 -
II. Evidence Linking Responsible Parties to the Site (continued)
B. Generators (continued)
Document Originator EPA Contact Probable File
Location
o Interview notes o EPA-OSC/Response o EPA-Region, o Remedial
from discussions Team. Waste Response:
with persons who Management Discovery/
are o Other Federal or Division Hazard
knowledgeable State Investigators Project Ranking File
about past site Manager or Enforcement
activities such o State-OSC/Response File
as employees, Team o State Agency
local officials
residents of the o REM/FIT o EPA-Regional
area, local Contractors Counsel
industries, etc.
o Photographs
documenting
activities at
the site
o Corporate o NEIC Computer o EPA-Region, o Remedial
structure Files (SEC Waste Response:
records (e.g., and Dun & Management Discovery/
annual reports, Bradstreet Division Hazard
SEC reports, Reports) Project Ranking File
Dun & Bradstreet Manager or reports,
incorporation o Owner/Operator Enforcement
documents. of Facility o State Agency File
o Industrial o EPA-Regional
directories, Counsel
manuals, etc.
o Corporate
Divisions of
State Secretary
of State Offices
o Small Business
Administration
- 16 -
II. Evidence Linking Responsible Parties to the Site (continued)
B. Generators (continued)
Document Originator EPA Contact Probable File
Location
o Documents relating
to sampling and
analysis which
indicate wastes
found at a
facility are of
the same nature
as responsible
party's wastes.
o Documents found o EPA-OSC-Response o EPA-Region, o Remedial
during remedial Team RSPO Response:
activities Remedial
relating to the o REM/FIT Contractor Implementation
identification File
of responsible o Project Contractor
parties (e.g.,
labels, cartons,
records).
- 17 -
II. Evidence Linking Responsible Parties to the Site (continued)
C. Transporters
Document Originator EPA Contact Probable File
Location
o Manifests, o Owner/Operator o EPA-HQ, OSW o Remedial
shipping Facility. Response:
documents or o EPA-Region, Discovery/
other business o Generator Waste Hazard
documents Management Ranking or
(e.g., bills o Transporter Division Enforcement
of lading, Project File
vouchers, Manager
contracts
with haulers) o State Office
which provide responsible
info. on for manifests
responsible
parties. o EPA-Regional
Counsel
o Records or o EPA-OSC/Response o EPA-Region, o Remedial
other documents Team Waste Response:
found at the Management Discovery/
facility during o State-OSC/Response Division Hazard
an investigation Team. Project Ranking or
(e.g., bills Manager Enforcement
utility records, o Federal or State File
tax receipts or Investigators o State Agency
certificates,
real estate o REM/FIT o EPA-Regional
record, labels Contractors Counsel
on containers).
o Interview notes o EPA-OSC/Response o EPA-Region, o Remedial
from discussions Team Waste Response:
with persons who Management Discovery/
are o Other Federal Division Hazard
knowledgeable or State Project Ranking or
about past site Investigators. Manager Enforcement
activities such File
as employees, o State-OSC/Response o State Agency
local officials, Team
residents of the o EPA-Regional
area) o REM/FIT Counsel.
Contractors
- 18 -
II. Evidence Linking Responsible Parties to the Site (continued)
C. Transporters (continued)
Document Originator EPA Contact Probable File
Location
o Affidavits or o Past Employees o EPA-Region, o Remedial
signed of Facility Waste Response:
statements by Management Discovery/
persons with o Local Officials Division Hazard
knowledge or Residents Project Ranking or
regarding past Manager Enforcement
activities at o Other Persons File
the site. o State Agency
o EPA-Regional
Counsel
o Vehicle o Motor vehicle o EPA Region, o Remedial
identification Bureau. Waste Response:
information or Management Discovery/
equipment rental o Rental businesses Division Hazard
documents (e.g., Project Ranking or
license of o Vehicle Owner. Manager Enforcement
registration File
records, o Local truckstops o State Office
contracts or Responsible
lease o Owner/Operator for manifests
agreements). or Employees of
a Facility o EPA-Regional
Counsel
o Photographs
documenting
activities at
the site.
- 19 -
II. Evidence Linking Responsible Parties to the Site (continued)
C. Transporters
Document Originator EPA Contact Probable File
Location
o Corporate o NEIC Computer o EPA-Region, o Remedial
structure Files (SEC and Waste Response:
records (e.g., Dun & Bradstreet Management Discovery/
annual reports, Reports) Division Hazard
SEC reports, Project Ranking File
Dun and o Owner/Operator Manager or Enforcement
Bradstreet of Facility File
reports, o State Agency
incorporation o Industrial
documents. directories, o EPA-Regional
manuals, etc. Counsel
o Corporate
Divisions of
State Secretary
of State Offices
o Small Business
Administration
o Permits held o Owner/Operator o EPA-Region, o Remedial
by a facility of Facility. Waste Response:
(e.g., building Management Discovery/
or construction o Permitting Agency Division Hazard
permit or NPDES) (Local, State or Project Ranking File
which contain Federal) Manager or Enforcement
responsible File
party information. o State Agency
o EPA-Regional
Counsel
- 20 -
III. Sequence of Events, Including Consistency with NCP
A. General
Document Originator EPA Contact Probable File
Location
o List of Parties o EPA-Regional o EPA-Regional o Remedial
issued Notice Counsel Counsel Response:
Letter(s), dates Enforcement
on which letters o EPA-Region, Waste File
were issued and Management
copies of letters Division Project
Manager.
o Response to o Potential o EPA-Regional o Remedial
Notice Letter(s) Responsible Counsel Response:
Party Enforcement
File
o Correspondence o Potential o EPA-Regional o Remedial
and notes from Responsible Counsel Response:
oral Party. Enforcement
communications File
with potential o EPA-Regional
responsible Counsel.
party regarding
negotiations/
settlement
o Settlement o EPA-Regional o EPA-Regional o Remedial
proposals Counsel Counsel Response:
and supporting Enforcement
documents (e.g., o EPA-HQ-OLEC and File
technical studies OWPE
conducted by
potential o Potential Responsible
responsible Party
party).
o Settlement o EPA-HQ-OLEC and o EPA-Regional o Remedial
Agreements and OWPE Counsel Response:
supporting doc. Enforcement
(include o EPA-Regional File
internal EPA Counsel
approval memos,
press releases, o Potential Responsible
etc.). Party
* In those cases where partial settlements are reached with the parties
or only some of the parties negotiate a settlement.
- 21 -
III. Sequence of Events, Including Consistency with NCP (continued)
A. General (continued)
Document Originator EPA Contact Probable File
Location
o Summary of
negotiation
sessions,
offers and
responses
and copies
of all
documents and
correspondence.
o Documentation of o EPA-HQ-OWPE o EPA-Reg. o Remedial
the use of expert Counsel Response:
witnesses during o EPA-Reg. Enforcement
negotiations Counsel File
(expense and
time reports)
B. Immediate Removals*
1. Response Initiation
Document Originator EPA Contact Probable File
Location
o Notification o Owner/Operator o National o NRC
Record pursuant of facility. Response
to Sec. 103(a) Center (NRC) o EPA-Region,
or (c) of CERCLA o Carrier or other Removal
transporter Response File
o Government officials o U.S. Coast
responding to the Guard district
problem (Local, State
or Federal.
o Record of o Appropriate o EPA-HQ-ERD o Removal
notification federal official Response
of EPA-HQ-ERD o EPA-Region, File
or other OSC
appropriate
federal office
(e.g., EPA
Regional
Administrator,
U.S. Coast
Guard).
* Under certain circumstances, the removal response may be led by the U.S.
Coast Guard. Therefore, the source of the evidence and where it is
available from will vary, depending on which entity, EPA or USCG,
has the lead.
- 22 -
III. Sequence of Events, Including Consistency with NCP (continued)
B. Immediate Removals (continued)
1. Response Initiation (continued)
Document Originator EPA Contact Probable File
Location
o Record of o EPC-OSC o EPA-Region, OSC o Removal
Preliminary Response
assessment and o U.S. Coast File
initial Guard State-
inspection of OSC.
site (e.g.,
field notes, o TAT Contractor
sampling data,
responsible
party information.
o Documentation
concerning
the site
conditions that
necessitated an
immediate
removal and
the basis
for choosing a
particular
response.
o Documentation o EPA Regional o EPA-Region, OSC o Removal
of approval by Administrator. Response
EPA-Region and o EPA-HQ-ERD File
subsequent o U.S. Coast
EPA-HQ-ERD Guard-district
notification director
(when HQ approval
is not required).
o Documentation o EPA-HQ-Assistant o EPA-HQ-OSWER o Removal
of approval Administrator Response
by EPA-HQ-OSWER for OSWER. File
(when HQ approval
is required) o U.S. Coast Guard
district director
o Record of RRT o EPA-OSC o Regional o Removal
or NRT Response Response
notification o USCG-OSC (RRT) File
if appropriate.
o National
Response Team
(NRT).
- 23 -
III. Sequence of Events, Including Consistency with NCP (continued)
B. Immediate Removals (continued)
1. Response Initiation (continued)
Document Originator EPA Contact Probable File
Location
o Record of the o EPA-OSC o EPA-OSC o Removal
decision that Response
the immediate File
removal action
was completed.
o Record of the o EPA-OSC o EPA-OSC o Removal
decision to Response
exceed the $1 File
MM or 6-month
cutoff, if
applicable.
o Record of the o EPA-OSC o EPA-OSC o Removal
decision as to Response
whether further File
action is required
at the site.
o Record of US o EPA-OSC o EPA-OSC o Removal
Coast Guard Response
National Strike File
Force (USCG-NSF
notification and
request for
assistance.
o Record of ERT o EPA representative o Emergency o Removal
notification of RRT Response Response
and request for Team (ERT) File
assistance (e.g, o USCG-OSC
the Environmental o Regional
Emergency Response Response Team
Unit (EERU). (RRT)
- 24 -
III. Sequence of Events, Including Consistency with NCP (continued)
B. Immediate Removals (continued)
1. Response Initiation (continued)
Document Originator EPA Contract Probable File
Location
o Record of o EPA-OSC o EPA-Region, OSC o Removal
notification Response
of federal o Appropriate File
agencies (e.g., federal agency
FEMA, HHS).
o Initial POLREP o EPA-OSC o EPA-Region, OSC o Removal
(also known Response
as a 10 Point o USCG-OSC o EPA-Region, RSPO File
document).
o State-OSC
o TAT Contractor
2. Contractor Selection
o For removals requiring
less than $2500
oo EPA Form o EPA-OSC/Response o EPA-Region, OSC o Immediate
1900-48, Order Team Removal
for Services Response
Emergency o TAT Contractor File
Response to
Hazardous
Substance
Release.
oo EPA Form o EPA-OSC/Response o EPA-Region, o Immediate
1900-50, Team OSC Removal
Justification Response
for o TAT Contractor File
Noncompetitive
Procurement
(JNCP).
oo EPA Form o EPA-OSC/Response o EPA-Region, o Immediate
1900-51, Team OSC Removal
Determination Response
of Price o TAT Contractor File
Reasonableness.
- 25 -
III. Sequence of Events, Including Consistency with NCP (continued)
B. Immediate Removals (continued)
2. Contractor Selection (continued)
Document Originator EPA Contact Probable File
Location
o Scope of Work o EPA-OSC o EPA-Region, OSC o Removal
(SOW) and cost Response
projections. o USCG-OSC File
o State-OSC
o TAT Contractor
o For removals requiring
more than $2500.
oo EPA Form o EPA-OSC/Response o EPA-Region, OSC o Immediate
1900-49, Notice Team Project Removal
to Proceed with Contractor Response
Emergency File
Response to
Hazardous
Substance
Release.
oo EPA Form o EPA-OSC/Response o EPA-Region, OSC o Immediate
1900-50, Team TAT Contractor Removal
Justification Response
for Noncompetitive File
Procurement (JNCP).
oo EPA Form o EPA-OSC/Response o EPA-Region, OSC o Immediate
1900-52, Ream TAT Contractor Removal
Authority to Response
Negotiate an File
Individual
Contract.
- 26 -
III. Sequence of Events, Including Consistency with NCP (continued)
B. Immediate Removals (continued)
2. Contractor Selection (continued)
Document Originator EPA Contact Probable File
Location
oo EPA Form o EPA-OSC/Response o EPA-Region, o Immediate
1900-53, Team. OSC Removal
Authority Response
to Use a Time o TAT Contractor. File
and Materials
Contract
oo EPA Form o EPA-OSC/Response o EPA-Region, o Immediate
1900-54, Team TAT OSC Removal
Memorandum Contractor Response
to the File File
Synopsis
Exemption.
o For procurement o EPA-OSC/Response o EPA-Region, o Immediate
of services Team TAT OSC Removal
from state and Contractor Response
local File
governments.
oo EPA Form o EPA-OSC/Response o EPA-Region, o Immediate
1900-56, Team Project OSC Removal
Letter Contractor. Response
Contract File
for State or
Local Government
Response to
Emergency
Hazardous
Substance
Release.
oo EPA Form o EPA-OSC/Response o EPA-Region, o Immediate
1900-50 (see Team TAT Contractor OSC Removal
list above). Response
File
oo EPA Form o EPA-OSC/Response o EPA-Region, o Immediate
1900-52 (see Team TAT Contractor OSC Removal
list above). Response
File
oo EPA Form o EPA-OSC/Response o EPA-Region, o Immediate
1900-54 (see Team TAT OSC Removal
list above). Contractor
- 27 -
III. Sequence of Events, Including Consistency with NCP (continued)
B. Immediate Removals (continued)
2. Contractor Selection (continued)
Document Originator EPA Contact Probable File
Location
oo EPA Form o EPA-OSC/Response o EPA-Region, o Immediate
1900-57, TAT Contractor OSC Removal
Determination
and Findings o Response
Methods of File
Contracting.
o EPA Form o EPA-HQ-Contracts o EPA-Region, o Immediate
1900-8, OSC Removal
Procurement o EPA-OSC/Response Response
Request/ Team File
Requisition
(for additional o TAT Contractors
funds).
o EPA Form o EPA-HQ-Contracts o EPA-Region, o Immediate
1900-30, OSC Removal
Modification o EPA-HQ-Contracts Response
of Contracts. Operations Office File
o EPA Form o EPA-OSC/Response o EPA-Region, o Immediate
1900-58, Team OSC Removal
Notice Response
Regarding o TAT Contractor File
Work Stoppage.
- 28 -
III. Sequence of Events, Including Consistency with NCP (continued)
B. Immediate Removals (continued)
3. Response Implementation
Document Originator EPA Contact Probable File
Location
o Inter-Agency o EPA-HQ-OSWER o EPA-Region, o Immediate
Agreements OSC Removal
Memoranda of o Appropriate Response
Understanding Federal File
(for agency.
reimbursement
of Superfund
related
activities
by federal
response
agencies
such as Department
of Justice, Army
Corps of Engineers).
o Health and o Project Contractor o EPA-Region, OSC o Immediate
Safety Removal
Plan. o EPA-OSC/Response Response
Team File
o TAT Contractor
o Community o EPA-OSC o EPA-Region, o Immediate
Relations Project Removal
Plan. o EPA-Region/HQ- Officer Response
Public Affairs File
Office
o EPA-Region, Regional
Project Officers.
o State Agency
o Entry and exit o EPA-OSC/Response o EPA-Region, o Immediate
logs (for Team. OSC Removal
personnel, Response
vehicles, o TAT Contractor File
equipment
and materials.
o Daily OSC logs o EPA-OSC o EPA-Region, o Immediate
OSC Removal
Response
File
- 29 -
III. Sequence of Events, Including Consistency with NCP (continued)
B. Immediate Removals (continued).
3. Response Implementation (continued)
Document Originator EPA Contact Probable File
Location
o Incident o EPA OSC/Response o EPA-Region, o Immediate
obligation Team TAT OSC Removal
logs. Contractor Response
File
o Daily summary o EPA OSC/Response o EPA-Region, o Immediate
of CERCLA Team TAT OSC Removal
cleanup. Contractor Response
File
o POLREPS. o EPA OSC/Response o EPA-Region, o Immediate
Team TAT Contractor OSC Removal
Response
o EPA-Region, File
Project Officer
o Daily work o EPA-OSC o Immediate
orders. o EPA-Region, Removal
OSC Response
File
o Daily work o Project Contractor o EPA-Region, o Immediate
plans. OSC Removal
Response
File
o Record of all o EPA-OSC/Response o EPA-Region, o Immediate
communications OSC Removal
in and out of o TAT Contractor Response
the command File
post.
o All progress o Appropriate o EPA-Region, o Immediate
reports Federal OSC Removal
submitted agency Response
by other File
federal
agencies
pursuant
to an MOU
or IAG.
- 30 -
III. Immediate Removals (continued)
Document Originator EPA Contact Probable File
Location
o Documentation o EPA-OSC o EPA-Region, o Immediate
regarding OSC Removal
use of the o EPA-ERT Response
EPA-EERU. File
o EPA Form o Project Contractor o EPA-Region, o Immediate
1900-55, OSC Removal
Contractor Response
Cost File
Report
(Completed
daily).
o Daily o EPA-OSC o EPA-Region, o Immediate
Verification OSC Removal
of work by OSC Response
File
o Documents o Responsible o EPA-Region, o Immediate
regarding party OSC Removal
operation and Response
maintenance of o EPA-OSC/Team o EPA-Region, File
the site OSC
following o TAT Contractor
the removal. o EPA-Region,
o State Agency OSC
o Other contractor
o Photographs, o EPA-OSC/Response o EPA-Region, o Immediate
movies, or Team OSC Removal
video tape Response
taken of o TAT Contractor File
removal
activities. o Project Contractor
o Documents o EPA-OSC/Response o EPA-Region, o Immediate
relating Team OSC Removal
to all Response
sampling and o TAT Contractor o EPA-Region, File
analysis OSC
conducted o Project Contractor
during removal
See pages 3 and o State Agency
4 under "Evidence
of a Release or
Threat of a Release".
* See Technical Assistance Team (TAT) Contract User's Manual, Draft, USEPA
- Emergency Response Division, October 14, 1982. This section applies
to both immediate and planned removals.
- 31 -
III. Sequence of Events, Including Consistency with NCP (continued)
B. Immediate Removals (continued)
4. TAT Contractual Documents For Removals
Document Originator EPA Contact Probable File
Location
o TAT Emergency o EPA-Region, Deputy o EPA-Region, o Contracts
Responses (DPO). DPO File
Removal and
Prevention- o EPA-HQ,
Technical
Direction
Document (TDD)
and modifications.
o Contractor Work o TAT-Leader o EPA-Region, o Contracts
Plans (for DPO File
special
projects).
o TAT Emergency o TAT-Leader o EPA-Region, o Contracts
Response, DPO File
Removal and
Prevention-
TDD Acknowledgement
of Completion.
o Monthly Status o TAT-Leader o EPA-Region, o Contracts
Reports (tasks DPO File
and activities
for a TAT).
o Special Project o TAT Contractor - o EPA-Region, o Contracts
Reports. National Program DPO File
Manager
o Overall TAT o TAT Contractor - o EPA-Region, o Contracts
Contract Reports National Program DPO File
if appropriate Manager.
to the site (e.g.,
Program Management
Information Systems,
Financial Management,
Status, or Summary
Progress Reports).
- 32 -
III. Sequence of Events, Including Consistency with NCP (continued)
C. Planned Removals
1. Response Initiation
Document Originator EPA Contact Probable File
Location
o Record of (same as page #21, #1, bullet #1)
notification
or discovery.
o Documentation o EPA-OSC o EPA-HQ-ERD o Planned
supporting Removal
EPA-OSC request o EPA-HQ-ERD. o EPA-Region, Response
to EPA-HQ-ERD OSC File
that an immediate
removal be followed
by a planned removal,
including any statements
by experts.
o Record of o EPA-OSC o EPA-Region, o Planned
preliminary OSC Removal
assessments and o State-OSC Response
initial File
inspection of o TAT Contractor
site (e.g., field
notes, sampling
data, responsible
party information).
o State request o Governor or o EPA-Regional o Planned
and cost share designee Administrator Removal
assurances. and Project Response
Officer File
o Initial POLREP o EPA-OSC o EPA-Region, o Planned
OSC Removal
o TAT Contractor Response
o EPA-Region, File
Regional
Project Officer
o EPA-HQ-ERD
o Draft Action o EPA-OSC o Planned
Memorandum, o EPA-HQ-ERD Removal
cover letter o EPA-Region, Response
and final Regional o EPA-Region File
action Project Officer Project Officer
memorandum with
concurrences.
- 33 -
III. Sequence of Events, Including Consistency with NCP (continued)
C. Planned Removals (continued)
2. Contractor Selection
Document Originator EPA Contact Probable File
Location
o 14-Point o EPA-OSC o EPA-Region, o Planned
document with Regional Removal
Justification o TAT Contractor. Project Response
for Officer File
Noncompetitive
Procurement o EPA-HQ-ERD
or Justification
for Limited
Competition,
if appropriate.
o Request for o EPA-HQ-Procurement o EPA-Region, o Planned
Proposal (RFP) and Contracts Regional Removal
to contractors Management Project Response
listed in 14 Division (PCMD) Officer File
Point document.
o EPA-HQ-ERD
o Documentation o EPA-OSC o EPA-HQ-ERD o Planned
regarding the Removal
bidding and o EPA-HQ-PCMD Response
proposal File
evaluation o EPA-HQ-ERD
process.
3. State Involvement
o State Superfund Contract
oo Notice of o EPA-HQ-PCMD o EPA-HQ-ERD o Planned
Award and Removal
documentation. Response
File
oo Draft SSC and o EPA-Region-OSC o EPA-Region-OSC o Planned
Comments Removal
Response
File
oo Final accepted o EPA-HQ-ERD (GDT) o EPA-Region-ERD o Planned
SSC and EPA-Region RPO Removal
concurrences. Response
File
- 34 -
III. Sequence of Events, Including Consistency with NCP (continued)
C. Planned Removals (continued).
3. State Involvement (continued)
Document Originator EPA Contact Probable File
Location
oo Communications, o EPA-HQ-ERD (ROT) o EPA-Region-ERD o Planned
memoranda and (ROT) Removal
other documents o EPA-HQ-ERD (GDT) Response
relevant to the o EPA-Region-ERD File
contract. (GDT)
oo Documentation o EPA-OSC o EPA-Region, o Planned
of cost ceiling Regional Removal
for state Project Response
services. Officer File
o Daily o EPA-OSC o EPA-Region, o Planned
documentation Regional Removal
of State costs o State Project Project Response
(daily log and Coordinator Officer File
EPA Form 1900-55
or equivalent).
oo Request for o EPA-HQ-FMD o EPA-Region, o Planned
payment of cost Regional Removal
share not met Project Response
through services. Officer File
oo Documentation o EPA-HQ-FMD o EPA-Region, o Planned
of state Regional Removal
payment. o State Department Project Response
of Treasury Officer File
oo Contract o EPA-HQ-Grants o EPA-Region, o Planned
Amendments. Administration Regional Removal
Project Response
o State Agency Officer File
- 35 -
III. Sequence of Events, Including Consistency with NCP (continued)
C. Planned Removals (continued).
Document Originator EPA Contact Probable File
Location
o State o EPA-HQ-ERD (GDT) o EPA-Region, o Planned
cooperative Regional Removal
agreement. o EPA-HQ-GAD (GOB) Project Response
Officer File
oo Application o EPA-Region,
(draft and Regional Project
accompanying Officer.
documentation
EPA Form o State Project Officer
5700-33; State
Programmatic
Assurances; EPA
Form 5700-48;
Community Relations
Plan).
oo Decision o EPA-Region, o EPA-Region, o Planned
Memorandum. Regional Project Removal
Administrator Officer Response
File
oo Region and o EPA-Region, Program o EPA-Region, o Planned
Headquarters and Enforcement Regional Removal
review comments staff Project Response
Officer File
o EPA-HQ-ERD (ROT),
OWPE, HSCD, OGC, OEC,
OERR with final approval
by AA, OSWER.
oo Grant Funding o EPA-HQ-ERD (GDT) o EPA-Region, o Planned
Orde. Regional Removal
Project Response
Officer File
oo Committment o EPA-HQ-OERR (FMC) o EPA-Region, o Planned
Notice (EPA Regional Removal
Form 2550-9). o EPA-Region, Project Response
Regional Officer File
Project Officer
oo Cooperative o EPA-HQ-GAD (GOB) o EPA-Region, o Planned
Agreement Regional Removal
(EPA Form Project Response
5700-20A). Officer File
- 36 -
III. Sequence of Events, Including Consistency with NCP (continued)
C. Planned Removals (continued).
3. State Involvement (continued)
Document Originator EPA Contact Probable File
Location
oo Deviation o EPA-HQ-ERD (GDT) o EPA-Region, o Planned
from 40 CFR Regional Removal
30. o EPA-HQ-GAP (GOB) Project Response
Officer File
oo Amendments o EPA-HQ-GAD o EPA-Region, o Planned
(EPA Form Regional Removal
5700-20A and/ Project Response
or 20 B). Officer File
oo State o State entity o EPA-Region, o Planned
approval that must vote Regional Removal
of Cooperative to approve Project Response
Agreement Officer File
(if required).
4. Response Implementation - See pages 28-30 under "Immediate Removals".
5. TAT Contractual Documents for Removals - See page 31 under "Immediate
Removals".
- 37 -
III. Sequence of Events, Including Consistency with NCP
D. Remedial Actions.
1. Remedial Action Planning and Decision Making
Document Originator EPA Contact Probable File
Location
o Remedial o REM/FIT Contractor o EPA-HQ, OERR o Remedial
Action Planning
Master Plan. o EPA-Region, File
Project Officer
o Documents o EPA Regional o EPA-HQ, OERR o Remedial
relating to Project Officer Planning
the initiation File
of RI/FS.
o Documents o EPA Regional o EPA-HQ, OERR o Remedial
relating to Project Officer Planning
the need for File
Initial Remedial
Measures.
o Documents o EPA Regional o EPA-HQ, OERR O Remedial
relating to Project Officer Planning
source control File
remedial actions
and off-site
remedial actions.
2. State Involvement
o Credit o State Agency o EPA-Region, o Remedial
Identification Financial Mgt. Response:
Letter. Officer State
Coordination
o EPA-Region- File
RSPO
o EPA Inspector o EPA Office of o EPA-Region, o Remedial
General's Audit Inspector General RSPO Response:
Report of state State
accounting of Coordination
expenditures File
during credit
period.
- 38 -
III. Sequence of Events, Including Consistency with NCP (continued)
D. Remedial Action (continued).
2. State Involvement (continued)
Document Originator EPA Contact Probable File
Location
o Formal o EPA-HQ-Hazardous o EPA-Region, o Remedial
verification Site Control RSPO Response:
of credit Division State
notification. o EPA-Region, Coordination
Fin. Mgt. File
Officer
o Superfund o State Attorney o EPA-Region, o Remedial
Contracts and General RSPO Response:
documents State
supporting o State Agency Coordination
State File
Assurances. o EPA-Region-
Superfund
coordinator and
RSPO
o Control Division
o EPA-HQ-AA for OSWER.
o Contract o EPA-Region, o EPA-Region, o Remedial
Decision RSPO Response:
Memo State Coord.
File
o Copy of check o State Agency o EPA-Region, o Remedial
from State to Fin. Mgt. Response:
EPA and o EPA-HQ-Financial Officer State Coord.
certified mail Management File
receipt (for Division
State share of
work done under
Superfund Contract.
o Cooperative o State Agency o EPA-Region, o Remedial
Agreement RSPO Response:
pre-application o EPA-Region, RSPO Stat Coord.
notification File
package o EPA-Regional
(includes Counsel
EPA Form 5700-30.
- 39 -
III. Sequence of Events, Including Consistency with NCP (continued)
D. Remedial Action (continued).
2. State Involvement (continued).
Document Originator EPA Contact Probable File
Location
o Documents o EPA-HQ, Grants o EPA-Region, o Remedial
Relating to Administration RSPO Response:
EPA Grants Division State Coord.
Administration File
Division review
for Cooperative
Agreement.
o Cooperative o State Agency o EPA-Region RSPO o Remedial
Agreement Response:
application o EPA-Region, RSPO State Coord.
package File
(includes o EPA-Regional Counsel
EPA Form
5700-33).
o Cooperative o EPA-Region, RSPO o EPA-Region, o Remedial
Agreement RSPO Response:
Decision Memo. State Coord.
File
o Cooperative o EPA-HQ, Hazardous o EPA-Region, o Remedial
Agreement Site Control RSPO Response:
Grant Funding Division State Coord.
Order (EPA Form File
5700-14. o EPA-HQ, Grants
Administration
Division
o Cooperative o EPA-HQ, Hazardous o EPA-Region, o Remedial
Agreement Site Control RSPO Response:
Committment Division State Coord.
Notice (EPA File
Form 2550-9). o EPA-HQ, Grants
Administration
Division
o Cooperative o EPA Award Official o EPA-Region, o Remedial
Agreement, RSPO Response:
Modifications, State Coord.
and related File
document (includes
EPA Forms 5700-20A
and B.
- 40 -
III. Sequence of Events, Including Consistency with NCP (continued)
D. Remedial Action (continued).
2. State Involvement (continued)
Document Originator EPA Contact Probable File
Location
o Cooperative o State o EPA-Region, o Remedial
Agreement State RSPO Response:
Quarterly Progress State Coord.
Reports, EPA reviews File
of the Reports, and
related documents.
o Documents o EPA-HQ-GAD (GOB) o EPA-Region, o Remedial
Supporting RSPO Response:
an expenditure State Coord.
deviation for o EPA-Region, File
Pre-award costs. Fin. Mgt.
Officer
o State/EPA o Appropriate Staff o Remedial
Correspondence at EPA Region/HQ o EPA-Region, Response:
regarding and State Agency RSPO State Coord.
Contracts/ File
Cooperative
Agreements.
o EPA internal o Appropriate Staff o EPA-Region, o Remedial
comments on at EPA Region/HQ RSPO Response:
draft and final State Coord.
versions of Contract/ File
Cooperative Agreements.
o Summaries of o EPA-Region RSPO o EPA-Region, o Remedial
all meetings RSPO Response:
held to negotiate State Coord.
Contract/Cooperative File
Agreement.
o State o State Statutes/ o EPA-Region, o Remedial
legislation Code of Regulations RSPO Response:
or regulations State Coord.
authorizing States File
to enter into
Contract/Cooperative
Agreement.
- 41 -
III. Sequence of Events, Including Consistency with NCP (continued)
D. Remedial Action (continued).
2. State Involvement (continued)
Document Originator EPA Contact Probable File
Location
o State o State entity o EPA-Region, o Remedial
approval (if granting approval. RSPO Response:
necessary by State Coord.
state law) of File
Cooperative
Agreement/Contract.
3. Response Implementation (continued)
o Investigation o Appropriate o EPA-Region, o Remedial
reports and Agency/Contractor RSPO Response:
supporting Remedial
documents. Planning
o Feasibility o EPA-OSC/Response o EPA-Region, o Remedial
Study and Team RSPO Response:
supporting State Coord.
documents. o State-OSC/Response File
Team
o REM/FIT Contractor
o EPA-Regional or HQ
Technical Staff.
o State Agency
Technical Staff
o Review of o EPA-OSC/Response o EPA-Region, o Remedial
design plans Team RSPO Response:
and specifications. Remedial
o State-OSC/Response Planning
Team File
o REM/FIT Contractor
o EPA-Regional or HQ
Technical Staff.
o State Agency Technical
Staff
o Army Corps of Engineers
- 42 -
III. Sequence of Events, Including Consistency with NCP (continued)
D. Remedial Action (continued).
3. Response Implementation (continued)
Document Originator EPA Contact Probable File
Location
o Logs, notes, o EPA-OSC/Response o EPA-Region, o Remedial
reports, Team RSPO Response:
manifests, work Remedial
plans, health o State-OSC/Response o Corps of Implement.
and safety Team Project Engineers File
plans and other Contractors. Site Project
documents Officer
relating to o Corps of
construction Engineers
activities.
o Permits and o Appropriate o EPA-Region, o Remedial
Manifests Federal or State RSPO Response:
(e.g., Dredge Permitting Agency Remedial
and Fill Material Implement.
Discharges-Sec. o Corps of Engineers File
404 of CWA;
RCRA-SEC. 6925).
o Photographs or o Project Contractor o EPA-Region, o Remedial
video tape taken RSPO Response:
of work in o EPA-OSC/Response Imagery File
progress. Team or Rem.
Implementation
o State-OSC Response File
Team
o REM/FIT Contractor
o Corps of Engineers
o Final EPA-OSC o EPA-OSC o EPA-Region-OSC o Remedial
Report. EPA-Reg.-RSPO Response
o Corps of Engineers Remedial
Implement.
File
- 43 -
III. Sequence of Events, Including Consistency with NCP (continued)
D. Remedial Action (continued).
3. Response Implementation (continued)
Document Originator EPA Contact Probable File
Location
o Documentation o EPA-OSC/Resp. o EPA-Region, o Remedial
relating to all Team RSPO Response
sampling and Remedial
analysis o State-OSC/Resp. Implement.
conducted Team File
during
construction o REM/FIT Contractor
and with respect
to post-closure o Project Contractor.
monitoring (e.g.,
sampling and
analysis
data reports
from
monitoring
wells).
4. Contractual Documents For Remedial Work
o REM/FIT Zone o EPA Regional o EPA-Region, o Contracts
Contract REM/FIT RSPO File
Technical Coordinator
Directive
documents/Work
Assignments.
- 44 -
III. Sequence of Events, Including Consistency with NCP (continued)
D. Remedial Action (continued).
4. Contractual Documents for Remedial Work (continued)
Document Originator EPA Contact Probable File
Location
o REM/FIT Zone o EPA Regional o EPA-Region, o Contracts
Contract REM/FIT RSPO File
Regional Work Coordinator
Plan Remedial
Planning and
Support Activity
Projection - Work
Assignments.
o REM/FIT Zone o FIT Regional o EPA-Region, o Contracts
Project RSPO File
Contract - Officer
Technical
Directive
Document (TDD).
o Work o EPA-Region, o EPA-Region, o Contracts
Assignment RSPO RSPO File
Package
o State Proj.
Officer
o Contractor o REM/FIT o EPA-Region, o Contracts
Work Plan. Contractor RSPO File
o Management o REM/FIT o EPA-Regional o Contracts
Plans (Zone Contractor REM/FIT File
and Regional). Coordinator
o Progress Reports o REM/FIT o EPA-Regional o Contracts
Technical/ Contractor REM/FIT File
Financial (Zone Coordinator
and Regional).
- 45 -
III. Sequence of Events, Including Consistency with NCP (continued)
D. Remedial Action (continued)
4. Contractual Documents for Remedial Work (continued)
Document Originator EPA Contact Probable File
Location
o Activity o REM/FIT Contractor o EPA-Regional o Contracts
Completion REM/FIT File
Reports (TDD Coordinator
Acknowl. and
Work Assignment).
o Award Fee o EPA Regional o EPA-Regional o Contracts
Performance REM/FIT REM/FIT File
Event Reports. Coordinator Coordinator
o REM/FIT Regional
Project Officer
o List of o EPA-Regional o EPA-Region, o Remedial
contact Staff. RSPO Response:
persons in Community
the community o Staff of State Relations
and Local Agencies File
o Community o EPA-Region/HQ- o EPA-Region, o Remedial
Relations Public Affairs RSPO Response:
Plan. Office Community
Relations
o EPA-Region, RSPO File
o Press releases o Federal, State or o EPA-Region, o Remedial
or information Local officials RSPO Response:
released to the Community
public. Relations
File
o Summaries/ o EPA/State o EPA-Region, o Remedial
transcripts Officials RSPO Response:
public Community
meetings. o Stenographer Relations
File
- 46 -
III. Sequence of Events, Including Consistency with NCP (continued)
E. Implementation of Cost Recovery Plan.
Document Originator EPA Contact Probable File
Location
o List of o EPA-Regional o EPA-Regional o Remedial
Parties issued Counsel Counsel Response:
Demand letter(s) Enforcement
and dates of o EPA-HQ-OLEC and File
OWPE.
o U.S. Department
of Justice
o Response to o Potential o EPA-Regional o Remedial
Demand Responsible Counsel Response:
Letter(s) Party. Enforcement
File
o Formal cost o EPA-Regional o EPA-Regional o Remedial
recovery Counsel Counsel Response:
referral memos Enforcement
to EPA-HQ-OLEC
and Department
of Justice (if
response to
demand letters
was negative).
o Correspondence o Potential o EPA-Regional o Remedial
and notes from Responsible Counsel Response:
oral Party. Enforcement
communications File
with potential
responsible parties
regarding
negotiations/
settlement.
o EPA-Regional
Counsel
o EPA-HQ-OLEC and
OWPE
o Settlement o Potential o EPA-Regional o Remedial
proposals Responsible Counsel Response:
and supporting Party Enforcement
documents. File
o EPA-Regional Counsel
o EPA-HQ-OLEC and
OWPE.
o Settlement o Potential Responsible o Remedial
agreements Party Response:
and supporting Enforcement
documents** o EPA-Regional File
Counsel.
o EPA-HQ-OLEC and OWPE
* In cases where partial settlements are reached the parties or only some
of the parties settle
Appendix D
The following pages constitute a sample cost recovery plan that may be
used by the Regions to facilitate the development and gathering of
documents, assess the evidence, issue demand letters and prepare for
negotiations and litigation. The use of a cost recovery plan is purely
optional. If a Region chooses to use the cost recovery plan as a
management and enforcement tool, it may use any format it chooses. The
plan included in this Appendix is intended only as a sample.
COST RECOVERY PLAN
I. SITE NAME _______________________ REGION __________________________
ADDRESS ___________________________________________________________
(State) (city or town)
II. FUND ACTIVITIES AT SITE
Date Begun Date Date Dollars
Completed Scheduled Spent to
Activity to Begin Date
__________________________________________________________________________
Immediate Removal ! ! ! !
_________________________!______________!___________!___________!_________
Planned Removal ! ! ! !
_________________________!______________!___________!___________!_________
Remedial Investigation ! ! ! !
& Feasibility Study ! ! ! !
(ri/fs). ! ! ! !
_________________________!______________!___________!___________!_________
Initial Remedial ! ! ! !
Measures ! ! ! !
_________________________!______________!___________!___________!_________
Remedial Design. ! ! ! !
_________________________!______________!___________!___________!_________
Remedial Construction ! ! ! !
_________________________!______________!___________!___________!_________
III. FUND FINANCED ACTIVITIES TO BE COVERED BY THIS COST RECOVERY EFFORT
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
- 2 -
IV. SUMMARY OF BACKGROUND EVENTS
Appropriate Staff Completion
Event Contact Person Date of Status
________________________________________________________________________
1. Responsible Party Search ! !
and Assessment of Financial ! !
Status ! !
_____________________________!____________________!_____________________
2. Notice Letters Issued ! !
_____________________________!____________________!_____________________
3. 10-pt. or 14-pt. ! !
Documents Prepared ! !
_____________________________!____________________!_____________________
4. RAMP Prepared ! !
_____________________________!____________________!_____________________
5. Headquarters Review and ! !
Approval of Cooperative ! !
Agreement/Superfund ! !
Contract. ! !
_____________________________!____________________!______________________
- 3 -
V. DESIGNATION OF STAFF RESPONSIBILITIES AND TARGET DATES FOR STEPS IN
COST RECOVERY PROCESS
Completion Date
Step Assigned To Projected Actual
_______________________________________________________________________
PHASE I - Initial Steps ! ! ! !
! ! ! !
_____________________________!_________________!____________!_________!
1. Monitor On-Going Fund ! ! ! !
Activity. ! ! ! !
_____________________________!_________________!____________!_________!
2. Assess Responsible Party ! ! ! !
Information: ! ! ! !
! ! ! !
Identification of ! ! ! !
Responsible Parties. ! ! ! !
! ! ! !
Financial Capability ! ! ! !
Assessment of ! ! ! !
Responsible Parties. ! ! ! !
_____________________________!_________________!____________!_________!
- 4 -
Completion Date
Step Assigned To Projected Actual
________________________________________________________________________
3. Review Regional Superfund ! ! !
files and obtain copies ! ! !
of any documents that can ! ! !
be used to prove the ! ! !
occurrence or threat of a ! ! !
release and the liability ! ! !
of the potentially ! ! !
responsible parties. ! ! !
_____________________________!_______________!______________!___________
PHASE II - Collection of ! ! !
Documents ! ! !
! ! !
1. Review Regional Superfund ! ! !
files and obtain copies ! ! !
of any documents that can ! ! !
be used as evidence to ! ! !
prove consistency with ! ! !
the National Contingency ! ! !
Plan and to document ! ! !
expenditures and ! ! !
decision-making. ! ! !
! ! !
2. Obtain necessary ! ! !
documentation from ! ! !
Headquarters, ! ! !
contractors, State and ! ! !
other Federal agencies ! ! !
that were involved in ! ! !
the clean-up. ! ! !
_____________________________!_______________!______________!__________
- 5 -
Completion Date
Step Assigned To Projected Actual
__________________________________________________________________________
PHASE III - Demand Letters ! ! !
! ! !
1. Draft Demand Letters ! ! !
___________________________!________________!_______________!_____________
2. Obtain Signature of ! ! !
Director, OWPE on ! ! !
Demand Letters. ! ! !
___________________________!________________!_______________!_____________
PHASE IV - Negotiations ! ! !
! ! !
1. Establish Negotiation ! ! !
Team and Select Team ! ! !
Leader and Lead ! ! !
________________________!________________!_______________!_____________
2. Assess Evidence and ! ! !
Strength of Case. ! ! !
Identify and Attempt ! ! !
to Rectify Data Gaps. ! ! !
___________________________!________________!_______________!_____________
3. Search for and Select ! ! !
Experts, as ! ! !
Appropriate. ! ! !
___________________________!________________!_______________!_____________
4. Develop Negotiation ! ! !
Schedule ! ! !
___________________________!________________!_______________!_____________
5. Coordinate with State ! ! !
and Local Officials ! ! !
___________________________!________________!_______________!_____________
6. Prepare Information ! ! !
Package for Responsible ! ! !
Parties. ! ! !
___________________________!________________!_______________!_____________
- 6 -
Completion Date
Step Assigned To Projected Actual
________________________________________________________________________
PHASE V - Litigation ! ! !
! ! !
1. Prepare Case Referral ! ! !
Memo and Litigation ! ! !
Report for DOJ. ! ! !
___________________________!________________!_____________!_____________
2. Assess Evidence to ! ! !
Support the Following: ! ! !
! ! !
Release Occurred. ! ! !
! ! !
Party was Responsible ! ! !
! ! !
Response was ! ! !
Consistent with NCP. ! ! !
! ! !
Tabulation of Costs ! ! !
and Support ! ! !
Documentation. ! ! !
___________________________!________________!_____________!____________
3. Prepare Briefings for ! ! !
Headquarters and DOJ ! ! !
___________________________!________________!_____________!____________
4. Provide Legal Support ! ! !
to DOJ During Trial ! ! !
Preparation. ! ! !
___________________________!________________!_____________!____________
5. Provide Technical ! ! !
Support to DOJ During ! ! !
Trail Preparation. ! ! !
___________________________!________________!_____________!____________
- 7 -
VI. - Miscellaneous Issues Associated with the Site
It is recognized that there may be special technical, legal and policy
issues for a site which need to be addressed. Some examples are:
handling large multi-generator cases; piercing corporate veils; policies
and procedures regarding federal facility involvements; and State costs
and consistency with the NCP. These issues should be listed in this
section of the plan and a staff member and due date for a response to the
issue should be assigned.
Appendix E
It is suggested that central files be set up in each Region to
facilitate the cost recovery data gathering effort. Each Region must of
course decide for itself whether a central filing system would be
beneficial and whether it is logistically feasible. Appendix E contains a
sample file structure that the Regions might consider if central files are
to be set up.
APPENDIX E
PROPOSED FILE STRUCTURE
To adequately document activities taken at a Superfund site, an
organized filing system is essential. A well defined and maintained
filing system will minimize duplication of files as well as the time and
effort required to locate documents, facilitate the transition to the
negotiation or litigation phases of the cost recovery process, and allow
Agency staff to obtain status information about a site for management
purposes.
The details regarding such a filing system are discussed in a guidance
paper entitled, "Regional Paper File Structure," Final Draft, U.S. EPA,
Office of Emergency and Remedial Response, Office of Policy and Program
Management (OPPM), December 1, 1982. The file structure which is
presented in Exhibit E-1 is based on the one outlined in that guidance
paper.
As appropriate, subsets of the files listed in Exhibit B-1 or
additional files could be established for those sites which have extensive
documentation requirements. It is important to note that the
"Enforcement" file is defined narrowly (see description below) for
purposes of this filing system. A filing system organized for an
enforcement action would necessitate the use of information contained in
many different files.
EXHIBIT E-1
FILE STRUCTURE FOR SUPERFUND SITES
Site Overview
Congressional Inquiries/Hearings
Remedial Response
Discovery/Hazard Ranking
Remedial Planning
Remedial Implementation
State and Other Agency Coordination
Community Relations.
Removal Response
Imagery
Enforcement
Contracts
Financial Transactions.
Exhibit E-1 specifically suggests a file location for each document
listed. Generally however, the files listed in Exhibit E-1 should include
the following types of information:
- 2 -
o Site Overview - Includes site summary, chronological list of events
and dates, and selected computer system reports.
o Congressional Inquiries/Hearings - Includes correspondence, documents
released in response to Congressional requests, testimony presented
at hearings, hearing transcripts, Congressional committee reports and
surveys regarding the site.
o Remedial Response
- Discovery/Hazard Ranking - Includes all documents relating
to the initial discovery or notification of a site, documents
regarding the preliminary assessment of the site (e.g.,
information about site operation, site investigations, sampling
and analysis, hydrolgeology and biological inventory of
surrounding area), and hazard ranking forms.
- Remedial Planning - Includes documents relating to preparation
of the RAMP, action memo, any remedial investigation reports,
feasibility studies, plans and specifications, and design
reports.
- Remedial Implementation - Includes all permits, sampling and
data analysis, daily logs recorded at the site, OSC reports,
health and safety plan, documents regarding monitoring
or maintenance activities.
- State and Other Agency Coordination - Includes all Inter-Agency
Agreements, Memoranda of Understanding, and all documents
relating to the negotiation of a Cooperative Agreement.
- Community Relations - Includes all communications with
community organizations or individuals, minutes or transcripts
of public meetings, documents relating to the Community
Relations Plan, documents relating to the health and safety
plan, public comments on EPA proposals and responses, press
releases, and newspaper articles and TV transcripts.
o Removal Response */
*/ This file may not be located in the central file as the OSC
may need to retain all of the documents prepared in connection
with the removal. If possible, an index of the documents
contained in the removal file should be included in the
central file and the name and phone number of the OSC or other
responsible persons should be noted.
- Includes all documents relating to response initiation, development
of scope of work, and response implementation for immediate and
planned removals.
- 3 -
o Imagery - Includes all current and historical photographs, infra-red,
thermal or other remote sensing of the site, and any photographs or
video tapes taken during a response action.
o Enforcement */
*/ This file or portions of this file may be located in the Regional
Counsel's office due to the confidential nature of the material.
- Includes information directly related to the enforcement aspects
of response actions taken at a site. It includes data on prior legal
actions (Federal, State and Local), information relating to potential
responsible parties such as manifests, notice letters and responses,
negotiation documents, and demand letters and responses. As noted
above, additional information necessary to support a cost recovery
action will be included in other files.
o Contracts - Includes all documents relating to the development of the
scope of work, request for proposals, review of bids, contractor work
plans and reports, EPA reviews of contractor performance, and all
summary reports regarding the TAT or REM/FIT Contracts.
o Financial Transactions **/
**/ See Regional Financial Procedures Manual, Draft, U.S. EPA,
August 29, 1982 for additional information regarding the site
financial file.
- Includes all documents relating to allocation and commitment of
Superfund monies (e.g., Action Memo), planned cost documents (e.g.,
RAMP projections), estimated cost documents, obligation documents
(e.g., OSC obligation log), OSC-certified invoices submitted by
contractors, records of payment by EPA, all internal (EPA), external
(Treasury of OMB) and trust fund reports relating to the site, State
letter-of-credit drawdown vouchers, State Quarterly Reports, and
other federal agency reports.
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