Early Design Strategy (TAGM - 4051)Issuing Authority: Michael J. O'Toole, Jr. and Jeffrey T. Lacey
Title: Director, Division of Environmental Remediation and Director, Division of Environmental Enforcement
Date Issued: August 2, 1993
This guidance is intended to streamline the remediation process by providing for more rapid commencement of the design of the selected remedial alternative in certain circumstances. The goal is to reduce the time between signing of the Record of Decision (ROD) and commencing the design stage. This initiative, however, will in no way circumvent Citizen Participation activities necessary and appropriate for a given site.
The purpose of this TAGM is to identify circumstances when early design is appropriate for Potential Responsible Party (PRP)-funded and State funded projects and to establish procedures for making this determination. This strategy is not needed at Title 3 sites because a municipality must agree to perform the full remedial process when it signs consent orders.
- PRP Sites:
PRP-funded site remediation efforts fall into two categories: those for which the consent order includes the entire remedial program, and those for which the order covers only the Remedial Investigation/Feasibility Study (RI/FS).
In the first case there should be no reason for delay when the PRP agrees with the DEC-selected remedy. However, a letter should be obtained from the PRP confirming such concurrence. It is appropriate to commence the Design immediately after the ROD is signed. However, should the PRP disagree with the selected remedy, then it may be necessary to delay start of the design until the dispute between the PRP and DEC is resolved.
When the Consent Order only covers the RI/FS, and the PRP conducting the RI/FS agrees with the selected alternative and commits to sign an order covering Remedial Design/Remedial Action (RD/RA), the PRP should be encouraged to start the design (i. e., developing and approving the design work plan, starting field work and so forth) while negotiating the RD/RA order. Technical staff should work with the PRP, as appropriate, during the design phase to oversee this work. However, approval of final design documents (i. e., final plans and specifications) must not be granted until the RD/RA consent order has been fully negotiated and signed.
This streamlined approach may not be appropriate for complex projects for which negotiated RD/RA work plans should be incorporated into the order. Also, the early design strategy may not be practical when the PRP, after having committed to undertake the RD/RA, is unable to do so for whatever reason (financial or otherwise); in such instances, the State would then undertake conducting the RD/RA.
- State-Funded Sites:
Generally, when the State funds the RI/FS, the State also funds the RD/RA. When no PRP had been identified as being financially able and willing to finance the RI/FS, a State-funded design should start immediately after a ROD is signed.
On the other hand, if the State funded the RI/FS because a financially capable PRP had refused to fund it, then we should not commence the RD/RA until we have approached the PRP again in an attempt to secure a commitment to conduct the RD/RA. This extra step is required by 6NYCRR Part 375-3.1 as a measure to promote the principle that the "polluter pays" whenever practicable. However, we are not legally bound to again satisfy the "all reasonable efforts" test that was required when the initial attempt was made to secure a commitment from the financially viable but unwilling PRP to conduct the RI/FS.
As the RI/FS project nears completion, the project manager should review the PRP status to determine which of the categories described above applies.
- PRP-Funded RI/FS:
If the consent order includes RD/RA, the project manager should work with the PRP, with assistance as needed from the project attorney, to get the design project started without delay after the ROD is signed.
However, if an RD/RA order is needed, the site should be referred to DEE using the procedures in TAGM #4045. The appropriate Remedial Bureau or Regional Office should anticipate this need during work planning discussions with the DEE Field Unit Leader and also should account for negotiation time in estimating the design start date. Should the PRP agree with the selected remedy, the PRP should be encouraged through a letter sent by DHWR to commence design before the RD/RA Order is signed. The DEE Field Unit Leader should be informed of the PRP's willingness to proceed and work plans should be coordinated such that the RD/RA order can be signed before the design is complete. However, under no circumstance is final approval of the design to be given before the order is signed.
- State-Funded RI/FS:
Before commencing the RD/RA it is necessary to determine whether a PRP is financially able (directly and/or by means of insurance coverage) by having sufficient assets to perform the remedial work. If a financial viability analysis was not performed prior to the RI/FS, such an analysis should be performed before starting the design. If an analysis of financial viability had been performed before the start of the State-funded RI/FS, a review of that analysis should be made to confirm that the PRP's financial status is unchanged. This review may be performed by DEE's PRP Search Standby Contractor or by DHWR's Contract Management staff using Dunn and Bradstreet and financial records DEC may attain. Should the results of the review indicate that the PRP is truly financially viable, then DEC staff must try to obtain PRP funding.
If by the time the RI/FS project nears completion a financially viable PRP has been identified, the site must be referred to DEE for follow-up enforcement using the referral procedure specified in TAGM #4045. No attempt should be made to commence a State funded RD/RA unless DEE refers the site back to DHWR after determining that the PRP is unwilling or unable to fund the RD/RA.
However, if no viable PRP has been identified, a memo should be prepared for the Director of DHWR to send to the Director of DEE justifying, based on the record, commencement of a State-funded design without further enforcement efforts. Within 10 days, the Director of DEE will respond to indicate concurrence or non-concurrence with DHWR's decision to proceed. If nonconcurrence, the project manager will organize a meeting of appropriate DHWR and DEE representative to evaluate the case and to provide the Division Directors a summary of the facts supporting a decision one way or another. As needed, the Division Directors shall meet to resolve the disagreement.