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Superfund Enforcement Strategy and Implementation Plan

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Superfund Enforcement Strategy and Implementation Plan UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 OFFICE OF SOL I D WASTE AND E MERGENC Y R E SPONSE SUBJECT : Superfund Enforcement Strategy and Implementation Plan FROM : Bruce M. Diamond, Director~~~------- Office of Waste Programs Enforcement As an interested observer of the progress of the Superfund program, I thought you might be interested in the attached report prepared by this office pursuant to requests by the House and Senate Appropriations Committees. They directed the Agency to conduct an evaluation of the Superfund enforcE!ltW:!nt program. EPA responded with two reports. First is a report titled "Toward a More Effective Superfund Enforcement Program" prepared by the Environmental Law Institute (ELI) under a grant from EPA. The ELI study is an independent evaluation of the Superfund enforcement program. Second is an EPA report titled "Superfund Enforcanent Strategy and Implementation Plan" (the Plan). The Plan describes the Agency's Superfund enforcement strategy and the steps necessary to implement improvements in the enforcanent program. I am sending the Plan to you for your information and am willing to make the. ELI report available to you should you wish. It is important to distinguish the Plan from the Agency's recently released "Management Review of the Superfund Program" (and its Implementation Plan) . The Plan was developed in response to the requests from the Appropriations Committees. The Review was developed in response to. a commitment that EPA Aaninistrator Reilly made to Congress during his confirmation hearings. The Plan focusses entirely on the Superfund enforcement process while the Review addresses all aspects of the Superfund Program. The Plan contains many of the key enforcement recomnendations presented in the Review but addresses additional enforcement issues and implementation steps as well. The Plan has been well coordinated with the overall effort to implement the Review. · If you have any questions or wish a copy of the ELI report, please feel free to contact me at 382-4814. I look forward to further discussions on the progress of the Superfund enforcement program. SUPERFUND ENFORCEMENT STRATEGY AND IMPLEMENTATION PLAN U.S. Environmental Protection Agency Office of Waste Programs Enforcement September 26, 1989 ! Introduction In passing the FY69 appropriation, the House and Senate Appropriations Committees requested that the Environmental Protection Agency (EPA) conduct an evaluation of the Superfund enforcement program. The specific language of the Appropriations Committees' requests are included as Appendix A of this report. EPA has responded to these requests with two reports. First, EPA contracted with the Environmental Law Institute to conduct an independent evaluation of the Superfund enforcement program. This evaluation was completed in the spring of 1989. Second, EPA has developed this report titled ''Superfund Enforcement Strategy and Implementation Plan" (referred to here as the Plan) which describes the Agency's Superfund enforcement strategy and the steps necessary to implement it. The Superfund Enforcement Strategy and Implementation Plan has been developed and should be read in close conjunction with the Agency's Management Review of the Superfund Program released in June 1989 (referred to here as the Superfund Uanagement Review). Strengthening Enforcement and Maximizing Private Party Work at ' Superfund Sites was one of five topics examined in the Superfund Management Review. A comprehensive plan to implement the Management Review was released in September 1989; this report supplements but does not repeat the recommendations in the review. The implementation plans and recommendations in these reports are fully consistent. The Superfund Management Review consists of analyses and recommendations in key areas of the enforcement program, while this Plan addresses the enforcement program in more detail. Neither report addresses enforcement for Federal facilities or enforcement of the notification requirements of section 103 of CERCLA and Title I11 of the Superfund Amendments and Reauthorization Act of 1986 (SARA). These programs are sufficiently complex in their own right that they could not be addressed in this Plan if it was to be kept to a manageable length. dF This Superfund Enforcement Strategy and Implementation Plan reflects a review of recent studies of the Superfund program, as well as ongoing management initiatives involving EPA and the Department of Justice, including the Superfund Settlement Incentives and Disincentives Workgroup and the Superfund Enforcement Management Issues Workgtoup. A list of issues raised in various studies and reports is ineluded as Appendix B. The Plan also reflects the Agency's eight years of experience in implementing the requirements of CERCLR. This Plan does not represent the final Work in implementation of an enhanced Superfund enforcement program, but will hopefully represent a major step toward realization of that goal. This Plan was developed with the participation of the major organizations involved in the Superfund enforcement program, including the Office of Waste Programs Enforcement (OWPE), the Office of Enforcement and Compliance Monitoring (OECM), the Office of Emergency and Remedial Response (OEM), the Office of the Comptroller (OC), the Office of General Counsel (OGC), the Environmental Enforcement Section of the Department of Justice (DOJ), and representatives of EPA's Regional enforcement programs and Regional Counsel offices. This Plan was prepared by the Office of Waste Programs Enforcement. 3 ..... ... TABLE OF CONTENTS I. Enforcement Strategy: General Enforcement and Settlement Principles.................... 7 A. General Principles.................................... 7 B. Judicial Principles................................... 8 C. Settlement Principles................................. 9 1I.Implementation Plan for Enforcement......................lO A. Identification of Potentially Responsible Parties.. ............................................. 11 1. PRP Search Process B. Information Exchange with Potentially Responsible Parties................................... 12 , 1. Enforcement of Information Requests 2. Information Release C. Removal Enforcement...................................l5 1. Resources 2. Regional Management Approach 0. Private Party Remedial Investigations and Feasibility Studies (RI/FSs) .......................... 17 1. Record of PRP RI/FS Settlements 2. Quality of PRP-lead RI/FSs E. Negotiations for Remedial Design and Remedial Action (RD/RA)......... ................................. 18 1. Achieving RD/RA Settlements 4 F. Settlement Authorities................................ 2o 1. Mixed Funding and De Minimis Settlements 2. Non-binding Allocations of Responsibility G. Unilateral Section 106 Authorities.. .................. 24 1. Unilateral Section 106 Orders 2. Section 106 Judicial Referrals H. Administrative Records................................27 1. Record Compilation I. Compliance with Consent Orders and Decrees............28 1. Tracking Systems 2. Penalties for Non-Compliance J. Cost Recovery......................................... 30 1. Recovery of All Costs \ 2. Documentation of All Costs 3. Removal Cost Recovery 111. Program Relationships................................. 33 A. Fund-Enforcement Integration.......................... 33 1. Site Classification System 2. Intergrated Priorities 3. Flexible Funding 4. Headquarters/Regional Organization Review 8. Headquarters/Regional/DOJ Relationships...............35 1. Consistent Goals 2. IAG/Accountability/Resources 3. Delegations/Management 4. Communications C. Statepadera1 Relationship............................ 38 D. Community Involvement and Public Outreach.. ...........39 IV. Resource Implications................................. 41 5 Appendices -_ Appendix A House and Senate Appropriations Committees Language ............................ A-1 Appendix B List of Enforcement Issues Raised by Reports on Superfund............................. ......B-1 Appendix C Acronyms ....................................... C-1 '. 6 I. DFORCEMENT STRATEGY: GENERAL ENFORCEMENT AN D SETTLEMENT PRINCIPLEs This section presents the general enforcement and settlement principles that guide the Superfund enforcement program and set the stage for the enforcement implementation plan contained in the remaining sections of this report. The Superfund Management Review's Strategy for Superfund sets the framework for the implementation of the entire Superfund program. Two features of the strategy are particularly important to the enforcement program because they state the Agency's commitment to increasing enforcement actions to induce private party cleanup and to integrating the Fund and enforcement aspects of the program to improve efficiency of program operations. A. GENERAL PRINCIPLES An effective Superfund program depends on a balanced approach consisting of settlements, administrative orders and litigation, and Fund-financed response. �PA will consider private party responses as the preferred approach for the majority of Superfund sites. At the same time, EPA will retain the maximum BmOUnt of leverage to use the Fund at specific sites where negotiation6 are unsuccessful. ' The goal of the government is to negotiate an agreement for 100% of response costs. However, settling for less than 100% can be appropriate if the settlement meets the Agency's ten point settlement criteria whicp assure that the settlement is in the best interests
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