CERCLA — RI/FS Process

The RI/FS Process: Who Pays, Who Controls

The Remedial Investigation / Feasibility Study (RI/FS) is governed by 40 C.F.R. Part 300, Subpart E. It is the most expensive phase of CERCLA enforcement defense -- not because of legal fees but because of contractor costs for site characterization, soil and groundwater sampling, and remedy analysis. The central question is not whether to pay, but who does the paying and who controls the scope.

What the RI/FS Covers

The RI (Remedial Investigation) characterizes the site: extent of contamination, nature of hazardous substances, exposure pathways, and human health and environmental risks. The FS (Feasibility Study) evaluates cleanup alternatives -- what different remedies cost, how well they achieve the cleanup goal, how quickly. The RI/FS together form the evidentiary record for EPA's remedy selection. The Records of Decision (ROD) is issued after the RI/FS. This means the RI/FS is the last stage where PRPs have meaningful leverage over what cleanup gets implemented.

Perform vs. Having EPA Perform: The Core Tradeoff

Performing the RI/FS yourself (via AOC): PRPs who enter into an Administrative Order on Consent (AOC) with EPA agree to perform the RI/FS under EPA oversight.

• PRPs select and control their own environmental contractors (within EPA-approved scope)
• Contractor costs are consistently lower than EPA's own contractors
• PRPs can advocate for less expensive, equally protective remedies during the FS
• The AOC itself, as an administrative settlement resolving liability for the RI/FS scope, positions PRPs for contribution protection under § 9613(f)(3)(B)

EPA performs, then bills you: If PRPs do not engage, EPA conducts the RI/FS under 40 C.F.R. § 300.430 and seeks cost recovery under § 9607(a).

• EPA's costs are substantially higher than PRP-directed contractor work
• PRPs have no control over scope, schedule, or contractor selection
• EPA's cost recovery includes interest on all recoverable amounts under 42 U.S.C. § 9607(a), accruing from the later of: (i) the date written demand for a specified amount is made; or (ii) the date the expenditure was incurred
• Non-participating PRPs are less well-positioned to argue against EPA's remedy choice

Negotiating the AOC Scope

The AOC is binding but it is negotiated. Key scope issues:

Work plan scope. The AOC incorporates a Work Plan defining the RI/FS tasks. Negotiating the Work Plan before signing is the most important cost-control leverage point. EPA's initial draft work plan often includes sampling beyond what is scientifically necessary.

Remedy evaluation criteria. The NCP at 40 C.F.R. § 300.430(e)(9)(iii) specifies nine remedy evaluation criteria: overall protection of human health and the environment; compliance with ARARs (applicable or relevant and appropriate requirements); long-term effectiveness; reduction of toxicity/mobility/volume; short-term effectiveness; implementability; cost; state acceptance; community acceptance. Cost is one of nine criteria -- not the primary one. PRPs who understand the NCP criteria can advocate for remedies that score well on cost and implementability without sacrificing protectiveness.

Institutional controls. When the remedy relies on institutional controls (deed restrictions, monitoring) rather than active remediation, the long-term obligations run with the property and persist through future transfers.

Contesting EPA's Preferred Remedy

After the RI/FS, EPA issues a Proposed Plan identifying its preferred remedy. There is a public comment period before the ROD is finalized -- the last formal opportunity to contest the remedy:

• Submit detailed technical comments on the FS alternatives (the administrative record is built here)
• Highlight cost and feasibility of EPA's preferred remedy versus less costly alternatives with equivalent protectiveness
• The ROD must respond to "significant" comments -- failure to respond is grounds for later judicial challenge

Once the ROD is issued, it is entitled to judicial deference unless arbitrary and capricious. Challenge during the Proposed Plan comment period; the post-ROD challenge standard is very difficult to meet.