Thursday
March 8, 1990
 Part II



 Environmental

 Protection  Agency

 40 CFR Part 300
 National Oil and Hazardous Substances
 Pollution Contingency Plan; Final Rule
                  Printed on Recycled Paper

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             Federal Register / Vol. 55,  No. 46 /  Thursday, March 8,  1990 / Rules  and Regulations
 ENVIRONMENTAL PROTECTION
 AGENCY

 40 CFR Part 300

 [FRU-3644-1]

 RIN 2050-AA75

 National Oil and Hazardous
 Substances Pollution Contingency
 Plan

 AGENCY: Environmental Protection
 Agency.
 ACTION: Final rule.      	

 SUMMARY: The Environmental Protection
 Agency (EPA) is today promulgating
 revisions to the National Oil and
 Hazardous Substances Pollution
 Contingency Plan (NCP). The Superfund
 Amendments and Reauthorization Act
 of 1988 (SARA) amends existing
 provisions of and adds major new
 authorities to the Comprehensive
 Environmental Response,
 Compensation, and Liability Act of 1980
 (CERCLA). Furthermore, SARA
 mandates that the NCP be revised to
 reflect these amendments. Today's
 revisions to the NCP are intended to
 implement regulatory changes
 necessitated by SARA, as well as to
 clarify existing NCP language and to
 reorganize the NCP to coincide more
 accurately with the sequence of
 response actions.
 DATES: The final rule is effective April 9,
 1990. CERCLA section 305 provides for a
 legislative veto of regulations
 promulgated under CERCLA. Although
 INSv. Chadha. 462 U.S. 919,103 S.Ct.
 2764 (1983), cast the validity of the
 legislative veto into question, EPA has
 transmitted a copy of this regulation to
 the Secretary of the Senate and the
 Clerk of the House of Representatives. If
 any action by Congress calls the
 effective date of this regulation into
 question, EPA will publish notice of
 clarification in the Federal Register. The
 incorporation by reference of certain
 publications listed in the regulation is
 approved by the Director of the Federal
 Register as of April 9,1990.
 ADDRESSES: The official record for this
 rulemaking is located in the Superfund
 Docket, located in Room 2427 at the U.S.
 Environmental Protection Agency. 401M
 Street, SW., Washington, DC 20460,
 telephone number 1-202-382-3046. The
 record is available for inspection, by
 appointment only, between the hours of
9:00 a.m. and 4:00 p.m., Monday through
Friday, excluding legal holidays. As
provided in 40 CFR part 2, a reasonable
fee may be charged for copying services.
 FOR FURTHER INFORMATION CONTACT:
 Tod Gold, Policy and Analysis Staff,
 Office of Emergency and Remedial
 Response (OS-240), U.S. Environmental
 Protection Agency, 401M Street, SW.,
 Washington, DC 20460, at 1-202-382-
 2182, or the RCRA/Superfund Hotline at
 1-800-424-9346 (in Washington, DC, at
 1-202-382-3000).
 SUPPLEMENTARY INFORMATION: The
 contents of today's preamble are listed
 in the following outline:
 I. Introduction
 II. Response to Comments on Each Subpart (a
    detailed index is set forth at the
    beginning of this section]
 III. Summary of Supporting Analyses
 I. Introduction
  Pursuant to section 105 of the
 Comprehensive Environmental
 Response, Compensation, and Liability
 Act of 1980, Pub. L. No. 96-510 (CERCLA
 or Superfund or the Act), as amended by
 section 105 of the Superfund
 Amendments and Reauthorization Act
 of 1986, Pub. L. No. 99-499, and
 Executive Order (E.O.) No. 12580 (52 FR
 2923, January 29,1987),  the
 Environmental Protection Agency (EPA),
 in consultation with the National
 Response Team, is today promulgating
 revisions to the National Oil and
 Hazardous Substances Pollution
 Contingency Plan (NCP), 40 CFR part
 300. Today's final rale is based on
 revisions proposed on December 21,
 1988 at 53 FR 51394; approximately 160
 commenters submitted specific
 comments on the Federal Register
 proposal, in writing as well as in
 testimony at four public hearings held in
 January 1989. Revisions to the NCP were
 last promulgated on November 20,1985
 (50 FR 47912).
  For the reader's convenience and
 because the section numbers are being
 changed, EPA is reprinting the entire
 NCP, except for Appendix A
 (Uncontrolled Hazardous Waste Site
 Ranking System: A Users Manual),
 which is the subject of a separate
 rulemaking (see 53  FR 51962, December
 23,1988); and Appendix B (National
 Priorities List), which undergoes
 frequent updates by rulemakings (see,
 e.g., 54 FR 29820,  July 14,1989); and
 Appendix C (Revised Standard
 Dispersant Effectiveness and Toxicity
 Tests), for which only minor technical
 corrections were proposed. Also the
 "Procedures for Planning and
 Implementing Off-Site Response
Actions," 40 CFR 300.440, is the subject
 of a separate rulemaking and is not.
 included in this notice. See proposed
rule, 53 FR 48218  (November 29,1988).
Those sections of the NCP that are
merely being repeated in this rule for
 public convenience, but for which no
 changes were proposed or comment
 solicited, are not the subject of this
 rulemaking and are not subject to
 judicial review.
   All existing subparts of the NCP have
 been revised and several new subparts
 have been added. Furthermore, because
 the NCP has been reorganized, many of
 the existing subparts have been
 redesignated with a different letter. The
 reorganization of NCP subparts is as
 follows:
 Subpart A—Introduction
 Subpart B—Responsibility and Organization
    for Response
 Subpart C—Planning and Preparedness
 Subpart D—Operational Response Phases for
    Oil Removal
 Subpart E—Hazardous Substance Response
 Subpart F—State Involvement in Hazardous
    Substance Response
 Subpart G—Trustees for Natural Resources
 Subpart H—Participation by Other Persons
 Subpart I—Administrative Record for
    Selection of Response Action
 Subpart J—Use of Dispersants and Other
    Chemicals
 Subpart K—Federal Facilities  [Reserved]
   Today's revisions to the NCP
 encompass a  broad and comprehensive
 rulemaking to revise as well as
 restructure the NCP. The primary
 purpose of today's rule  is to incorporate
 changes mandated by the Superfund
 Amendments and Reauthorization Act
 of 1986 (SARA) and to set forth EPA's
 approach for implementing SARA.
 SARA extensively revised existing
 provisions of  and added new authorities
 to CERCLA. These  changes to CERCLA
 necessitated revision of the NCP. In
 addition, EPA is making a number of
 changes to the NCP based on EPA's
 experience in managing the Superfund
 program.
   The preamble to the December 21,
 1988 proposed revisions to the NCP
 provided detailed explanations of
 changes to the existing (1985) NCP. The
 preamble to today's rule consists mainly
 of responses to comments received on
 the proposed revisions.  Therefore, both
 preambles should be reviewed when
 issues arise on the meaning or intent of
 today's rule. Unless directly
 contradicted or superseded by this
 preamble or rule, the preamble to the
 proposed rule reflects EPA's intent in
 promulgating today's revisions to the
NCP.
  The preamble to today's rule responds
 to the major comments received on the
proposed revisions, except as noted in
the following paragraphs. In general, a
separate discussion is provided for each
proposed section on which comments
were received; the discussions are
organized as follows: a description of

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            Federal  Register / Vol. 55, No. 46  /  Thursday, March 8, 1990 / Rules and Regulations
the "existing (1985) rule" and/or
"proposed rule" is provided to aid the
reader in understanding today's
revisions; a summary of the comments
received on each proposed section, and
EPA's response to the comments, is then
set out under the heading "response to
comments;" and revisions made to
proposed rule language are then set out
under the heading "final rule." Revisions
to the proposed rule that are simply
editorial or that do not reflect
substantive changes may not be
described under the heading "final rule."
In addition, citations have been updated
or corrected, where appropriate.
  More  detailed explanations to
comments received and responses to
minor comments are set out in the
"Support Document to the NCP," which
is available to the public in the
Superfund Docket, located in Room 2427
at the U.S. Environmental Protection
Agency, 401 M Street, SW., Washington,
DC 20460.
  A number of commenters on the
proposal made statements relating to
federal facilities, including suggestions
for how subpart K of the NCP should
address their concerns. Issues raised by
commenters included the applicability
of the NCP at non-NPL federal facilities,
state involvement at federal facilities,
the role of federal agencies as lead
agency at their facilities, and the
applicability of the removal time and
dollar limits to removal actions at
federal facilities. These are important
issues that EPA is considering in the
development of the proposed subpart K,
which is the subject of a separate
rulemaking. EPA will address these
comments as well as additional
comments received on the proposed
subpart K in the preamble and support
document to the final rule on subpart K.
   Subpart K will provide a roadmap to
those requirements in the NCP that
federal  agencies must follow when
conducting CERCLA response actions
where either the release is on, or the
sole source of the release is from, any
facility  or vessel under their jurisdiction,
custody, or control, including vessels
bare-boat chartered or operated.
   The preamble to the proposed NCP
also announced that EPA was
considering an expansion of the existing
policy of deferring sites from inclusion
on the National Priorities List (such as
sites subject to the corrective action
authorities of RCRA) to include deferral
to other federal or state authorities, or
CERCLA enforcement actions. A
number of comments were received on
this suggested policy expansion. EPA is
still evaluating the issues raised by
commenters and thus will not decide
this policy issue at this time. Current
policies with regard to what sites are
appropriate for inclusion on the
National Priorities List will remain in
effect until further notice. Should EPA
decide in the future to consider
establishing an expansion to deferral
policies, EPA will respond at that time
to the comments received.
  As part of a consent decree filed June
14,1989 in Natural Resources Defense
Council, etal, v. Reilly, C.A. No. 88-
3199 (D.D.C.), EPA agreed to deliver to
the Federal Register by February 5,1990,
for publication, final revisions to the
NCP proposed December 21,1988,
reflecting the requirements of CERCLA
section 105(b), as amended. With the
publication of this final rule, the
requirements of that consent decree are
now fulfilled.
  The regulation and the rest of the
preamble use the term "CERCLA" to
mean CERCLA as amended by SARA;
the term "SARA" is used only to refer to
Title III, which is an Act separate from
CERCLA, and to other parts of SARA
that did not amend CERCLA. The term
"SARA" is used in this overview portion
of the preamble, however, to highlight
the changes to CERCLA.

A. Statutory Overview
  The following discussion summarizes
the CERCLA legislative framework, with
particular focus on the major revisions
to CERCLA mandated by SARA as well
as the provisions of E.O. No. 12580,
which delegates certain functions vested
in the President by CERCLA to EPA and
other federal agencies. In addition, this
discussion references the specific
preamble sections that detail how these
changes to CERCLA are reflected in
today's rule.
  1. Reporting and investigation.
CERCLA section 103(a) requires that a
release into the environment of a
hazardous .substance in an amount
equal to or greater than its "reportable
quantity" (established pursuant to
section 102 of CERCLA) must be
reported to the National Response
Center. Title III of SARA establishes a
new, separate program that requires
releases of hazardous substances, as
well as other "extremely hazardous
substances," to be reported to state and
local emergency planning officials. The
preamble discussion  of subpart C
summarizes Title III reporting
requirements.
  CERCLA section 104 provides the
federal government with authority to
investigate releases. SARA amends
CERCLA section 104 to clarify EPA's
investigatory and access authorities,
explicitly empowering EPA to compel
the release of information and to enter
property for the purpose of undertaking
response activities. Amended section
104(e) also provides federal courts with
explicit authority to enjoin property
owners from interfering with the
conduct of response actions. SARA
further amends CERCLA section 104 to
specifically authorize EPA to allow
potentially responsible parties (PRPs),
under certain conditions, to conduct
investigations. The preamble discussion
of subpart E details how today's rule
reflects these revisions to CERCLA.
  2. Response actions. CERCLA section
104 provides broad authority for a
federal program to respond to releases
of hazardous substances and pollutants
or contaminants. There  are two major
types of response actions: the first is
"removal action," the second is
"remedial action." CERCLA section 104
is amended by SARA to increase the
flexibility of removal actions. This
amendment increases the dollar and
time limitations on Fund-financed
removal actions from $1 million and six
months to $2 million and one year,  and
allows a new exemption from either
limit if continuation of the removal
action is consistent with the remedial
action to be taken. (The existing
exemption for emergency actions
remains in effect.) SARA also amends
CERCLA section 104 to  require removals
to contribute to the efficient
performance of a long-term remedial
action, where practicable.
  In addition, SARA amends CERCLA
section 104 to require that, for the
purpose of remedial actions, primary
attention be given to releases posing a
threat to human health. (To this end,
SARA also amends CERCLA section 104
to expand health assessment
requirements at sites and to allow
individuals to petition the Agency for
Toxic Substances and Disease Registry
(ATSDR) for health assessments.)
  Among the major new provisions
added by SARA are CERCLA sections
121(a) through 121(d), which supplement
sections  104 and 106 by stipulating
general rules for the selection of
remedial actions, providing for periodic
review of remedial actions, and
describing requirements for the degree
of cleanup. These new sections codify
rigorous  remedial action cleanup
standards by mandating that on-site
remedial actions meet applicable or
relevant and appropriate federal
standards and more stringent state
standards. Where the remedial action
involves transfer of hazardous
substances off-site, this transfer may
only be made to facilities in compliance
with the Resource Conservation and
Recovery Act (RCRA) (or other
applicable federal laws) and applicable

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            Federal Register / Vol. 55. No. 46 / Thursday, March 8,  1990 / Rules and Regulations
state requirements, and at which
releases from land disposal units are
addressed.
  Section 121 emphasizes a long-term
perspective on remedies by requiring
that long-term effectiveness of remedies
and permanent reduction of the threat
be considered and that the calculation
of the cost-effectiveness of a remedy
include the long-term costs, including
the cost of operation and maintenance.
The section mandates a preference for
remedies that permanently reduce the
"volume, toxicity, or mobility" of the
hazardous substance, and requires that
remedies use permanent solutions and
alternative technologies or resource
recovery technologies to the maximum
extent practicable. The preamble
discussion of subpart E details how
these revisions to CERCLA are reflected
in today's rule.
  3. State and public participation. New
CERCLA section 121(f) requires the
"substantial and meaningful"
involvement of the states in the
initiation, development, and selection of
remedial actions. States are to be
involved in decisions on conducting
preliminary assessments and site
inspections. States will also have a role
in long-term planning for remedial sites
and negotiations with potentially
responsible parties. In addition, states
are to be given reasonable opportunity
to review and comment on such
documents as the remedial
investigation/feasibility study (RI/FS)
and the proposed plan for remedial
action. CERCLA also provides in section
121(e)(2) that a state is permitted to
enforce any federal or state standard,
requirement, criterion, or limitation to
which the remedial action is required to
conform.
  CERCLA section 104(d) provides that
a state, political subdivision thereof, or
federally-recognized Indian tribe may
apply to EPA to carry out the action
authorized in section 104. This section
allows these entities to enter into
cooperative agreements with the federal
government to conduct response actions.
SARA amends CERCLA section 104 to
make it easier for states to enter into
such cooperative agreements. The
preamble discussion concerning subpart
F details how these revisions to
CERCLA are reflected in today's rule.
  SARA adds a new CERCLA section
117 to codify public involvement in the
Superfund response process. This
section mandates public participation in
the selection of remedies and  provides
for grants allowing groups affected by a
release to obtain the technical expertise
necessary to participate in decision-
making.
  4. Enforcement. CERCLA sections 106
and 107 authorize EPA to take legal
action to recover from responsible
parties the cost of response actions
taken by EPA or to compel them to
respond to the problem themselves..
SARA adds to CERCLA a number of
provisions that are intended to facilitate
responsible party conduct of response
actions. CERCLA section 122, for
example, provides mechanisms by
which settlements between responsible
parties and EPA can be made, and
allows for "mixed funding" of response
actions, with both EPA and responsible
parties contributing to response costs.
  SARA creates a new CERCLA section
310, which allows for citizen suits. Any
person may commence a civil action on
his/her own behalf against any person
(including the United States and any
other governmental instrumentality or
agency, to the extent permitted by the
eleventh amendment to the
Constitution), alleged to be in violation
of any standard, regulation, condition,
requirement, or order which has become
effective pursuant to CERCLA (including
any provision of an agreement under
section 120 relating to federal facilities).
A civil action may  also be commenced
against the President or any other officer
of the United States (including the
Administrator of the Environmental
Protection Agency  and the
Administrator of the Agency for Toxic
Substances and Disease  Registry) where
there is alleged a failure  to perform any
act or duty under CERCLA, including an
act or duty under section 120 (relating to
federal facilities), which is not
discretionary with  the President or such
other federal officer, except for any act
or duty under section 311 (relating to
research, development, and
demonstration). Section 310 requires
that citizen suits be brought in a United
States district court. CERCLA section
113(h)(4) provides that citizen suit
challenges to response actions may not
be brought until file response action has
been "taken under section 104 or
secured under section 106."
  SARA amends CERCLA section 113 to
require the lead agency to establish an
administrative record upon which the
selection of a response action is based.
This record must be available to the
public at or near the site. Section 113(j)
provides that judicial review of any
issues concerning the adequacy of any
response action is limited to the
administrative record. The preamble
discussion of new subpart I includes the
introduction of administrative record
requirements into the NCP.
  5. Federal facilities. Section 120(a)(2)
of CERCLA provides that all guidelines,
rules, regulations, and criteria for
preliminary assessments, site
investigations, National Priorities List
(NPL) listing, and remedial actions are
applicable to federal facilities to the
same extent as they are applicable to
other facilities. No federal agency may
adopt or utilize any such guidelines,
rules, regulations, or criteria that are
inconsistent with those established by
EPA under CERCLA. (For purposes of
the NCP, the term "lead agency"
generally includes federal agencies that
are conducting response actions at their
own facilities.)
  Section 120 also defines the process
that federal agencies must use in
undertaking remediation at their
facilities. It requires EPA to establish a
federal agency hazardous waste
compliance docket that includes a list of
federal facilities. EPA must within 18
months  of enactment take steps to
assure that a preliminary assessment is
conducted at each facility and, where
appropriate, evaluate these facilities
within 30 months of enactment for
potential inclusion on the NPL. Sections
120(a) and (d) clarify that federal
facilities shall be evaluated for inclusion
on the NPL by applying the same listing
criteria  as are  applied to private
facilities. Requirements governing listing
are set forth in subpart E of the NCP and
in Appendix A (the Hazard Ranking
System). Federal agencies must
commence the RI/FS within six months
of listing on the NPL and enter into an
interagency agreement with EPA.
Section  120(e)  provides for joint EPA/
federal agency selection of the remedy,
or selection by EPA if EPA and the
federal agency are unable to reach an
agreement. CERCLA section 120(f)
makes clear that state officials shall
have an opportunity to participate in'the
planning and selection of the remedial
action, in accordance with section 121.

B. Summary of Significant Changes
From Proposed Rule

  The following is a summary of the
significant changes made to the
proposed NCP in today's final rule. In
subpart A, several definitions have been
revised, including "CERCLIS,"
"Superfund state contract," ''cooperative
agreement" and "source control action."
Also, definitions for "navigable waters,"
"post-removal site control" and "source
control maintenance measures" have
been added.
  In subpart B, §§ 300.110 and 300.115
have been changed to provide that
during activation of the National
Response Team and the Regional
Response Teams, the agency that
provides the OSC/RPM will be the

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            federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
chair. In § 300.165, a deadline of one
year for submitting an OSC report has
been promulgated, not 90 days as
proposed. The National Response
Center has been added to the list of
agencies described in § 300.175. No
major changes were made in subparts C
andD.
  In subpart E, the final § 300.430
incorporates a new goal and
expectations into the regulatory section
on RI/FS and selection of remedy. Also,
the categories for the nine criteria—
threshold, balancing and modifying—
have been removed from the detailed
analysis section (i.e., detailed analysis
does not distinguish among nine criteria)
and placed in the remedy selection
section. When using criteria for
balancing in selecting remedies,
emphasis is now placed on the criteria
for long-term effectiveness and
permanence and for reduction of
mobility, toxicity or volume. Further,
innovative technologies need only offer
the potential to be comparable in
performance or implementability to
demonstrated technologies to warrant
further consideration in the detailed
analysis step.
  Also in subpart E, the acceptable
cancer risk range in § 300.430(e)(2) has
been modified from the proposed 10~4to
10"7 to 10" 4 to IJT 6. The 10~6 point of
departure remains the same. Further, the
proposed NCP stated that maximum
contaminant levels (MCLs) generally
would be the cleanup level for
restoration of ground or surface water
where they are relevant and appropriate
under the circumstances of the release.
In the final NCP, maximum contaminant
level goals (MCLGs) that are set at
levels above zero generally will be the
cleanup levels where relevant and
appropriate. Where MCLGs are set at
levels equal to zero, the MCL generally
will be the cleanup level where relevant
and appropriate.
   Other changes in subpart E include
the following: As set forth in the
preamble to § 300.435, EPA will fund
operation costs for temporary or interim
measures that are intended to control or
prevent the further spread of
contamination while EPA is deciding on
a final remedy at a site. In § 300.400(g)
on applicable or relevant and
appropriate requirements (ARARs)
ARARs, the factors used to determine
whether a requirement is "relevant and
appropriate" have been modified.
   In the community relations sections,
the rule is revised so that upon timely
request, the lead agency will extend the
length of 30-day public comment period
on the proposed plan by a minimum of
30 additional days. The public comment
period on non-time-critical removal
actions will be extended, upon request,
a minimum of 15 additional days. Also,
the requirements during remedial
action/remedial design have been
revised to now include issuing a fact
sheet and providing an opportunity for a
public briefing after completion of
design.
  In subpart F, in a change to the
proposed rule, a Superfund
Memorandum of Agreement (SMOA)
SMOA will not be a prerequisite in
order for a state to recommend a remedy
to EPA or for the state to be designated
the lead  agency for a non-Fund-financed
response at an NPL site. Also, the
proposed durations for review by the
state of documents (e.g., RI/FS,
proposed plan) prepared by EPA will
now be applied as well to EPA's review
of documents prepared by the state (i.e.,
when the state is the lead agency).
  In subpart G and in other subparts,
clarifications were made on notification
of and coordination with natural
resource trustees. Also, the proposed
requirement that the Secretary of
Commerce obtain the concurrence of
other federal trustees where their
jurisdictions over natural resources
overlap has been revised so that the
Secretary of Commerce shall seek to
obtain such concurrence. No major
changes were made in subparts H and I
but several important clarifications are
discussed in the preamble sections on
these subparts. In subpart J, the
proposed rule required concurrence of
Commerce and Interior natural resource
trustees, as appropriate, on the use of
dispersants, burning agents, etc. The
final rule does not require such
concurrence but encourages
consultation with these natural resource
trustees.
II. Response to Comments on Each
Subpart
Index to Response to Comments
   Section numbers used in this index and in
headings in preamble sections below refer to
final rule section designations.
SUBPART A
300.3 Scope
300.4 Abbreviations
300.5 Definitions
SUBPART B
300.105  General organization concepts
300.110  National Response Team
300.115  Regional Response Teams
300.120  On-scene coordinators and remedial
    project managers: general
    responsibilities
300.125  Notification and communications
300.130  Determinations to initiate response
     and  special conditions
300.135  Response operations
300.140  Multi-regional responses
300.145  Special teams and other assistance
    available to OSCs/RPMs
300.150  Worker health and safety
300.155  Public information and community
    relations
300.160  Documentation and cost recovery
300.165  OSC reports
300.170  Federal agency participation
300.175  Federal agencies: additional
    responsibilities and assistance
300.180  State and local participation in
    response
300.185  Nongovernmental participation

SUBPART C
300.200  General
300.205  Planning and coordination structure
300.210  Federal contingency plans
300.215  Title HI local emergency response
    plans; Indian tribes under Title III

SUBPART D
300.300  Phase I—Discovery or notification
300.305  Phase II—Preliminary assessment
    and initiation of action
300.310  Phase III—Containment,
    countermeasures, cleanup and disposal
300.315  Phase IV—Documentation and cost
    recovery
300.320  General pattern of response
300.330  Wildlife conservation

SUBPART E

Section 300.400. General
300.400(d)(3); 300.400(d)(4)(i) Designating
    PRPs as access representatives;
    Administrative orders for entry and
    access
300.5; 300.400(e] Definition of on-site
Treatability testing and on-site permit
  exemption
300.400[h)  PRP oversight

Section 300.405. Discovery or Notification
300.5  Definition of "CERCLIS"
300.405;  300.410(h); 300.415(e) Listing sites in
    CERCLIS

Sections 300.410 and 300.420. Removal and
Remedial Site Evaluations
300.410  Removal site evaluation
300.410(c)(2); 300.420(c)(5) Removal site
    evaluation; Remedial site evaluation
300.410[g]  Notification of natural resource
    trustee
300.415(b)(4); 300.420(c)(4) Sampling and
    analysis plans

Section  300.415. Removal Action
300.415(b](5)(ii) Removal action statutory
    exemption
300.415(1)   Removal action compliance with
    other laws
300.5; 300.415(g)&(h); 300.500(a); 300.505;
    300.525(a) State involvement in removal
    actions

Section  300.425. Establishing Remedial
Priorities
300.5; 300.425 Definition of National Priorities
    List; Establishing remedial priorities
300.425(d)(6) Construction Completion
    category on the National Priorities List

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Federal Register  / Vol.  55, No. 46  /  Thursday, March 8, 1990 /  Rules and Regulations
Section 300.430. Remedial Investigation/
Feasibility Study and Selection of Remedy
Introduction
300,430(a)(l]  Program goal, program
    management principles and expectations
300.430(a)(l)  Use of institutional controls
300.430(b)  Scoping
300,430(d)  Remedial investigation
300.430(d)  Remedial investigation—baseline
    risk assessment
300.430(0)  Feasibility study
300,430(eH2)  Use of risk range
300.430(c){2)  Use of point of departure
300.430(0X8)  Detailed analysis of
    alternatives
300.430{f] Remedy selection
300.430{f){5) Documenting the decision
Ground-water policy
Section 300.435. Remedial Design/Remedial
Action, Operation and Maintenance
300.435(b)(l)  Environmental samples during
    RD/RA
300.435(d)  Contractor conflict of interest
300.5; 300.435(0 Operation and maintenance
Notification prior to the out-of-state transfer
  of CERCLA wastes
Applicable or Relevant and Appropriate
Requirements
Introduction
300.5; 300.400(8X1) Definition of "applicable"
300.5; 300.400(gj(2) Definition of "relevant and
    appropriate"
300.400(g){3)  Use of other advisories,
    criteria or guidance to-be-considered
    (TBC)
300.400(g)(4) and (g)(5) ARARs under state
    laws
300.515(d)(l)  Timely identification of state
    ARARs
300.430{f){l)(ii)(C) Circumstances in which
    ARARs may be waived
300.430(f)(l)(ii){C)(J) Interim measures
300.430{f)Clj(li)(C)(2J Greater risk to health
    and  the environment
300.430{fJ(lPXC)(3) Technical
    impracticability
300.430{fJ(lP)(C)(4) Equivalent standard of
    performance
300.430(f)(l)(ii)(C)(5) Inconsistent application
    of state requirements
300.430(f)(l)(iiKC){6) Fund-balancing
300.430(e)(2)(i){B) Use of maximum
    contaminant level goals for ground-water
    cleanups
300.430(f)(5)(iii)(A)  Location of point of
    compliance for groundwater cleanup
    standards
300.430{e)(2)(i)(F) Use of alternate
    concentration limits (ACLs)
300.430(e){2) Use of federal water quality
    criteria (FWQC)
300.435(b)(2)  Compliance with applicable or
    relevant and appropriate requirements
    (ARARs) during the remedial action
300,5  Distinction between substantive and
    administrative requirements
300.430{f)(l)(ii)(B) Consideration of newly
    promulgated or modified requirements
Applicability of RCRA requirements
Determination of whether a waste is a
  hazardous waste
When RCRA requirements are relevant and
  appropriate to CERCLA actions
                              Examples of potential federal and state
                                ARARS and TBCs

                              Community Relations
                              300.430(c); 300.430(f] (2), (3) and (6)
                                  Community relations during RI/FS and
                                  selection of remedy
                              300.415(m)(2)(ii);300.430(f)(3)(i)(C);
                                  300.435(c)(2](ii)(C] Length of public
                                  comment period
                              300.435(c)  Community relations during
                                  remedial design/remedial action
                              300.435(c)(2) Changes to the ROD after its
                                  adoption
                                Other community relations requirements

                              Enforcement
                              Superfund enforcement program strategy
                              Special notice and moratoria
                              Exemptions for federal facilities
                              300.420; 300.430; 300.435 Early notification
                                  and involvement

                              SUBPART F
                              300.5  Definitions of "cooperative
                                  agreement" and "Superfund state
                                  contract"
                              300.500; 300.505; 300.515(h) EPA/State
                                  Superfund memorandum of agreement
                                  (SMOA); Requirements for state
                                  involvement in absence of SMOA
                              300.510(c) (1) and (2); 300.510(e) State
                                  assurances—operation and maintenance
                                  and waste capacity
                              300.510(f)  State assurances—acquisition  of
                                  real property
                              300.515(a)   Requirements for state
                                  involvement in remedial and
                                  enforcement response
                              300.515(b)   Indian tribe involvement during
                                  response
                              300.425(e)(2); 300.515(c)(2); 300.515(c)[3);
                                  300.515[h)(3) State involvement in PA/SI
                                  and NPL process; State review of EPA-
                                  lead documents
                              300.505 and 300.515(d] Resolution of disputes
                              300.515(e) (1) and (2) State involvement in
                                  selection of remedy
                              Whether states should be authorized to select
                                the remedy at NPL sites
                              300.515(f)  Enhancement of remedy
                              300.515(g)   State involvement in remedial
                                  design/remedial action
                              300.520 (a) and (c) State involvement in EPA-
                                  lead enforcement negotiations
                              Dual enforcement standards

                              SUBPART G
                              300.600  Designation of federal trustees
                              300.610  Indian tribes as trustees for natural
                                  resources under CERCLA
                              300.615  Responsibilities of trustees

                              SUBPART H
                              300.700(c)   Consistent with the NCP
                              300.700(c)   Actions under CERCLA section
                                  107(a)
                              300.700(e)   Recovery under CERCLA section
                                  10B(b)

                              SUBPARTI
                              General Comments
                              300.800(a); 300.810(a) Establishment of an
                                  administrative record; Contents of the
                                  administrative record
                              300.800(b)  Administrative record for federal
                                  facilities
300.800(c)  Administrative record for state-
    lead sites
300.800 (d) & (e)  Applicability
300.805  Location of the administrative
    record file
300.810 (a)-(d) Documents not included in
    the administrative record file
300,815 Administrative record file for a
    remedial action
300.815 and 300.820(a) Administrative record
    file for a remedial action; administrative
    record file for a removal action
300.820(b)   Administrative record file for a
    removal action—time-critical and
    emergency
300.825 Record requirements after decision
    document is signed
SUBPARTJ
300.900—300.920  General

APPENDIX C
APPENDIX D

Subpart A—Introduction

  Subpart A, the preface to the NCP,
contains  statements of purpose,
authority, applicability and scope. It
also explains abbreviations and defines
terms that are used in the NCP.
  Name:  Section 300.3. Scope.
  Proposed rule: Proposed §  300.3 stated
that the NCP applies to federal agencies
and states and is in effect for discharges
of oil into or upon the navigable waters
of the United States and adjoining
shorelines, and releases of hazardous
substances into the environment, and
releases of pollutants or contaminants
which may present an imminent or
substantial danger to public health or
welfare.
  Response to comments: A commenter
suggested that § 300.3(a) of the proposed
NCP should state that the NCP applies
to private party responses as well as to
federal agency and state responses, and
the NCP should define the
responsibilities of EPA and states for
potentially responsible party (PRP)-lead
response actions.
  EPA has revised  § 300.3(a) to
eliminate the suggestion that the NCP
applies only to cleanups conducted by
federal agencies and states. EPA does
not believe, however, that the roles or
responsibilities of EPA or states during
PRP-lead cleanups should be defined for
the purposes of § 300.3(a). Rather, EPA
prefers that these roles and
responsibilities be negotiated and
defined in site-specific enforcement
agreements.
  Final rule: Proposed § 300.3(a) is
revised to read: "The NCP applies to
and is in effect for:"
  Name: Section 300.4. Abbreviations.

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            Federal  Register / Vol. 55, No. 46 / Thursday, March  8, 1990 / Rules  and Regulations
  Final rule: Several abbreviations
commonly used in the Superfund
program have been added to § 300.4:
LEPC—Local Emergency Planning
  Committee
NCP—National Contingency Plan
RAT—Radiological Assistance Team
SERC—State Emergency Response
  Commission
  Name: Section 300.5. Definitions.
  Response to comments: Comments
were received on several definitions.
The comments and EPA's responses
regarding revised and new definitions
are included in the appropriate
preamble sections, as indicated below.
The revised or new definitions are found
in the rule in § 300.5.
  1. "Applicable" and "relevant and
appropriate" are discussed in the
ARARs preamble section.
  2. "CERCLIS" is discussed in the
preamble on § 300.405.
  3. "Cooperative agreement" and
"Superfund state contract" are
discussed in the preamble to subpart F.
  4. "On-site" is discussed in the
preamble on § 300.400(e).
  5. The definition for "navigable
waters" used in 40 CFR 110.1 has been
included in the NCP.
  6. A new definition for "post-removal
site control" is discussed in the
preamble on § 300.415, "State
involvement in removal actions."
References to post-removal site control
have been added to the definitions in
§ 300.5 of "remove or removal" and
"remedy or remedial action."
  7. "Source control action" and a new
definition for "source control
maintenance measures" is discussed in
the preamble on § 300.435(f).
  In addition, minor revisions were
made to the following definitions:
  1. Modifications to "National
Priorities List" are discussed in the
preamble to § 300.425.
  2. In "operable unit," the last sentence
has been deleted because it was not
appropriate for a definition.
  3. In "pollutant or contaminant," the
reference to subpart E was deleted
because the definition applies to the use
of the term throughout the NCP.
  4. In "Superfund Memorandum of
Agreement (SMOA)," the words
"nonbinding" and "may establish" are
used to emphasize the voluntary nature
of a SMOA (see preamble to subpart F).
Also, a reference to "removal" has been
added (see preamble to § 300.415).
  5. In "United States," the term "Pacific
Island Governments" is used instead of
"Trust Territory of the Pacific Islands"
(this revision is also  made in
 §§ 300.105(d) (Figures 2 and 3) and
300.175(b)(9)(x)).
Subpart B—Responsibility and
Organization for Response
  Subpart B describes the
responsibilities of federal agencies for
response and preparedness planning
and describes the organizational
structure within which response takes
place. Subpart B lists the federal
participants in the response
organization, their responsibilities for
preparedness planning and response,
and the means by which state and local
governments, Indian tribes, and
volunteers may participate in
preparedness and response activities.
The term "federal agencies" is meant to
include the various departments and
agencies within the Executive Branch of
the federal government. Subpart B
should be distinguished from subpart K
(under preparation separate from this
final rule), which deals specifically with
site evaluation and remedial
requirements for facilities under the
jurisdiction of individual federal
agencies.
  The proposed revisions to subpart B
did not include major substantive
changes; however, EPA did propose to
combine existing subparts B and C. The
proposed subpart B also presented key
information in a logical sequence of
response-oriented activities from
preparedness planning through response
operations. The listing of the capabilities
of federal agencies with respect to
preparedness planning and response
was proposed to follow the sections
relating to response operations.
  The following is a discussion of
comments submitted and EPA's
responses on specific sections of
proposed subpart B. One change that
has been made to the proposal
throughout subpart B is, where
appropriate, to delete references to
Executive Orders. Although Executive
Orders are binding on agencies of the
federal government, such references are
unnecessary in a rule.
  Name: Section 300.105. General
organization concepts.
  Proposed rule: Section 300.105 directs
federal agencies to undertake specified
planning and response activities and
describes the general organizational
concepts of the National Response Team
(NRT), the Regional Response Teams
(RRTs) and the on-scene coordinator
(OSC)/remedial project manager (RPM).
The proposal provided general
descriptions of member agency
responsibilities with respect to their
participation in the NRT and the RRTs.
   Response to comments: Many of the
commenters appear to regard both the
NRT and the RRTs as response rather
than planning, coordinating, and support
organizations. Another commenter
wanted § 300.105(c)(l) edited to clarify
the fact that the NRT/RRTs are policy
and planning  bodies that support the
federal OSC, but that they do not
coordinate responses. One commenter
proposed dividing Figure 1 into two
parts, one to show the NRT/RRT
planning roles and the relationship
between the NRT/RRTs and the State
Emergency Response Commissions
(SERCs) and the Local Emergency
Planning Committees (LEPCs) and the
other to illustrate the relationship
between the NRT and the RRT during
incident-specific situations. Another
wanted § 300.105(d)(l) expanded to
describe all three figures rather than
only the first figure. Another noted that
corrections are needed in the references
to trust territories in Figures 2 and 3
(described in  § 300.105(d)(2) and (3)).
  The above  comments make it clear
that some clarification of the NRT/RRT
roles in the national response system is
needed. In response, text changes in the
rule now indicate the policy, planning,
coordination  and response support roles
of the NRT and the RRTs. Figure 1
(§ 300.105(d)(l)) shows the National
Response System has been expanded to
better indicate the relationships
between the parts of the organization
showing NRT, RRT, OSC and RPM,
special teams, and the connections with
state and local responders. Added lines
indicate the activities of the NRT and
RRTs including planning and
preparedness as well as response
support. Another added line indicates
NRC policy guidance from the NRT.
  Experience has shown that the
standing RRTs cannot provide a useful
forum for individual local governments
on a continuing basis because the RRT
responsibilities extend through a
multistate region and their regular
meetings are  only two to four times a
year, and generally devoted to
systemwide issues for the entire region,
rather than site-specific issues. Local
governments  may and often do
participate in such meetings where
lessons learned from a particular
incident are being discussed, for
example. At the standing RRT level,
then, the most effective way for local
interests to be represented is through
the state member. When an incident-
specific RRT  action is needed, local
interests on scene are represented in
accordance with the local plans,
including federal local plans, guiding the
particular response. An essential
purpose of the national response system
is to ensure federal readiness to handle
a response which might exceed local
and state capabilities. 'Appropriate

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RRT/federal representation on multi-
agency local response groups can
provide a forum for a particular
community, harbor area, or other
geographic locality, comparable to what
the RRT provides for the multi-state
region.
  One commenter wanted the NCP to
include checklists of the specific tasks to
be completed by each agency during a
response and to identify who in each
agency is supposed to carry out those
tasks. In response EPA believes that
detailed checklists of response tasks
and persons responsible for those tasks
belong in local response plans, not in the
more general regional and national
plans.
  One commenter said that "extremely
hazardous substances" should be added
to the substances listed in
1300.105{a)(l). Extremely hazardous
substances are defined in a separate
section of the SARA statute, Title HI.
Although some extremely hazardous
substances are CERCLA hazardous
substances, most are not. On January 23,
1989, however, EPA proposed to
designate the remaining extremely
hazardous substances as CERCLA
hazardous substances (54 FR 3388). This
addition, when promulgated, will in
effect mean that any reference to
"hazardous substances" will implicitly
include extremely hazardous
substances.
  Another commenter wanted to correct
awkward wording in § 300.105(a)(4). The
wording in § 300.105(a)(4) has been
changed as indicated below.
  Final rule: Proposed § 300.105 has
been revised as follows:
  1. Section 300.105{a}(4): "Make
available those facilities or resources
that may be useful in a response
situation, consistent with agency
authorities and capabilities."
  2. Section 300.105(c)(l): "The National
Response Team (NRT), responsible for
national response and preparedness
planning, for coordinating regional
planning, and for providing policy
guidance and support to the Regional
Response Teams. NRT membership
consists of representatives from the
agencies specified hi § 300.175."
  3. Section 300.105(c](2): "Regional
Response Teams (RRTs), responsible for
regional planning and preparedness
activities before response actions, and
for providing advice and support to the
on-scene coordinator (OSC) or remedial
project manager (RPM) when activated
during a response. RRT membership
consists of designated representatives
from each federal agency participating
in the NRT together with state and (as
agreed upon by the states]  local
government representatives."
                             4. Revisions to Figures 1 through 3
                           have been made. The revised Figure 1
                           clarifies the response support or
                           planning roles of the various entities
                           and shows the planning relationships
                           between the RRTs and the SERCs and
                           LEPCs. It also clarifies that, apart from
                           state and local participation in the RRT,
                           the federal membership of the NRT and
                           the RRTs is the same. Figures 2 and 3
                           have also been revised slightly to refer
                           to Pacific Island Governments rather
                           than Trust Territory of the Pacific
                           Islands.
                             Name: Section 300.110. National
                           Response Team.
                             Proposed rule: The proposed'rule
                           delineated the roles and responsibilities
                           of the NRT, specified who will act as
                           chair and vice-chair during activation
                           for a response action, outlined the
                           planning and preparedness
                           responsibilities of the NRT, and
                           discussed responses in general, to oil
                           discharges and releases of hazardous
                           substances, pollutants or contaminants.
                           The organization of the National
                           Response Center (NRC) was placed in
                           the notification section, § 300.125.
                             Response to comments: A commenter
                           suggested that more detail on the NRC
                           organization be included in the final
                           rule. EPA agrees that more descriptive
                           language is needed but feels it is better
                           placed in the section on notification and
                           communications. These changes are
                           discussed under § 300.125.
                             A commenter suggested that more
                           information is needed on the specific
                           duties of the NRT in an emergency, as
                           well as a remedial action. After careful
                           consideration, EPA believes that the
                           roles and responsibilities of the NRT are
                           addressed satisfactorily in § § 300.110
                           and 300.175, and no changes are
                           required. The NRT is activated in only a
                           limited number of responses, and its
                           activities then are usually carried out
                           through communications between
                           individual NRT member agencies with
                           their RRT members in the field as
                           needed to support the OSC or RPM.
                           Since the NCP generally describes
                           action tied to the response incident or
                           site, and the NRT is generally not
                           involved in actions on scene, NCP
                           discussion of possible NRT activities is
                           not necessary. The  idea of a clearer pre-
                           planned procedure for dealing with an
                           event of catastrophic or national
                           significance has been discussed, but
                           decisions have not yet been made as to
                           the form such protocols might take,
                           when or if they are deemed to be
                           needed.
                             Another commenter suggested that, in
                           view of the limitation on United States
                           Coast Guard (USCG) response authority
following the 1987/1988 Department of
Transportation (DOT)/EPA Instrument
of Redelegation (May 27,1988), the
second sentence of § 300.110(b) would
be more instructive if the chair of the
NRT during activation was the agency
providing the OSC/RPM.
  EPA agrees. Who sits as chair or vice
chair of the NRT will depend on which
agency provides the OSC/RPM for the
particular response action. It does not
necessarily depend on "whether the
discharge or release occurs in the inland
zone or coastal zone." EPA has certain
responsibilities for releases in the
coastal zone. The second sentence in
§ 300.110(b) has been changed as
recommended by this comment.
  It was suggested that § 300.110(h)(3)
further clarify who determines when it is
necessary to activate the NRT. EPA
believes that activation of the NRT is
adequately described in § 300.110(j) and
does not need to be outlined
additionally in § 300.110(h)(3).
  Final rule: The second sentence of
proposed § 300.110(b) is revised as
follows: "During activation, the chair
shall be the member agency providing
the OSC/RPM."
  Name: Section 300.115. Regional
Response Teams.
  Proposed rule: This section delineates
the roles and responsibilities of the
Regional Response Team (RRT). For
example, proposed § 300.115(b)(2)
addressed the activation of the incident-
specific RRT, and how the incident-
specific RRT supports the OSC/RPM
when the designated OSC/RPM directs
and coordinates response efforts at the
scene of the spill.
  Response to comments: It was
suggested that the NCP more clearly
define the role of the RRT in the
remedial program and require that
regional and state remedial managers be
informed of the assistance available
from the RRTs. In response, EPA
believes that the description of the roles
and responsibilities of the RRT in
§ 300.115 provides the necessary
framework for RRTs to support RPMs in
the remedial program as they
traditionally have supported OSCs.
Upon notification and request, the RRT
can function the same way for all
response actions, whether they involve
oil spill or hazardous material releases,
and removal or remedial actions.
Experience has not yet shown the need
or usefulness of specific RRT actions in
connection with the implementation of
the remedial program as described in
the NCP, while the flexibility exists for
them to be involved if a need does arise.

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                                                                           9
  One commenter suggested that this
section should not indicate that the
RRTs are response organizations, but
that they are there to provide advice
and assistance to the OSC, as
necessary. In response, § 300.115 was
not intended to portray the RRTs as
response organizations. It indicates that
they are the "appropriate regional
mechanism for development and
coordination of preparedness activities
before a response action is taken and for
coordination of assistance and advice to
the OSC/RPM during such response
actions." The proposed § 300.115(i)(7)
indicated, however,  that the standing
RRT should "be prepared to respond to
major discharges or releases outside the
region." This may have been somewhat
misleading, and has been changed to
indicate that the RRT may provide
"response resources" to major
discharges or releases outside the
region.
  It was also recommended that the
RRT support the designated OSC/RPM
of the state response agency without
assuming federal OSC direction and
coordination of all other efforts at  the
scene of the release. EPA does not agree
with this suggested comment to
§ 300.115(b). An  essential purpose  of the
national response system is to ensure
federal readiness to handle a response
which might exceed local and state
capabilities. That being so, the RRT
would generally not be activated unless
the federal government was needed as
the lead in the response. In general, the
authorities under which a federal
agency operates require that
commitments of federal resources  and
personnel be made through particular
channels or command chains. Through
specific memoranda of understanding,
state OSC/RPMs could request certain
kinds of federal  assistance from
individual agencies, but the RRT as a
unit is designed  to support a federal
OSC in those situations where the size
or nature of the response calls for  a
significant federal presence. (Experience
shows that a federal OSC is on scene
many times with no need to activate the
RRT.)
   Another commenter wanted the
following language added to
 § 300.115(c): "If the RRT is activated
upon the request of the state
representative to the RRT, then the chair
of the incident-specific RRT may be that
representative if the members of the
RRT so agree." EPA does not agree with
the comments. Who sits as chair and co-
 chair to the incident-specific RRT
 depends on where the spill occurred and
who provides the OSC/RPM, not who
requests activation of the RRT.
Certainly, the state representative will
always be an active member of the
incident-specific RRT when a spill
occurs in the particular state, but the
chair or co-chair will usually be the
USCG or EPA representative.
  Also suggested was the
reconsideration of the extension of
§ 300.115(d) to allow for the
participation of the Indian tribal
governments on both the standing RRT
and on incident-specific RRTs. Given
that there are over 200 federally
recognized Indian communities or
groups in Alaska,  participation by these
entities on the same basis as the State of
Alaska in the planning and coordination
functions of the RRT is not
administratively feasible. The comment
stated that this provision should be
modified to allow flexibility in
determining how Alaska Native villages
will be represented on the Alaska RRT.
  EPA understands the commenter's
concern as to the workability of a large
number of Indian tribal governments
participating in an RRT's activities.
However, the 1986 amendments to
CERCLA added several provisions for
Indian tribal governments to be afforded
the same opportunities as states. Indeed,
CERCLA section 126(b) specifically
states that "[t]he governing body of an
Indian tribe shall be afforded
substantially the same treatment as a
state with respect to the provisions
of * *  * section 105 (regarding roles
and responsibilities under the national
contingency plan  * * *)." It is
consistent with that provision to  include
Indian communities in the national
response system by having their
jurisdictions recognized in the context of
nationwide provisions for response
activities. The proposed NCP language
appeared to be the best way to allow
interested Indian tribal governments to
determine if the benefits of RRT
membership would be such that they
would be willing to undertake the
responsibilities of RRT membership, or
if there is an ad hoc basis, a planning
project, or other basis on which an RRT-
tribal relationship might be useful. In
some regions, an existing inter-tribal or
multi-tribal organization might provide
appropriate representation. The
language in the proposed rule was
intended to afford these kinds of
opportunities.
  Furthermore, it was submitted that,
for consistency, it would be much more
effective to mandate local government
involvement from the national level,
rather than to rely upon each state. The
 comments state that due to the impact a
local jurisdiction can experience from a
hazardous substance release, it is
imperative that local governments have
the ability to participate on the RRT.
EPA agrees that the impacts to a local
government from a major release are
substantial, but EPA does not agree that
the local government should be
mandated to participate in all RRT
activities. The local governments may
attend meetings and may actively
participate in RRT functions through
their state representative. The state
representative is generally responsible
for actively representing the interests of
the local governments. If the state
representative is performing his/her
duties properly, all local governmental
interests will be represented at RRT
functions.
  Also, it was suggested that RRT
review of LEPC plans should be
conducted only after the plans have
been reviewed by the SERC, as required.
EPA agrees that the RRTs will not be
able to review and comment on every
LEPC plan within their region. LEPC
plans should be initially reviewed by the
states, and if the state believes that the
RRT should also review the LEPC plan,
then the state should request such a
review from the RRT.
   One commenter wanted the phrase
"or participation in" inserted after
"conduct" in § 300.115(i)(8), noting that
this would allow the state RRT
representative/SERC the ability to
request RRT participation, within
allowable resources. EPA agrees that
the phrase "or participate in" should be
inserted after "conduct" in
§ 300.115(i)(8). This would give the RRT
more flexibility in deciding whether it
wanted to manage a particular exercise
or training program or simply act as a
participant.
   Regarding  § 300.115(j)(l)(i), one
commenter raised the question of who
decides when the OSC's/RPM's
response capability is exceeded. This
question does not need to be addressed
in the final rule. The particular OSC/
RPM will know when his/her response
capability is going to be exceeded, and
that information will be passed on to the
RRT as soon as it is known. In addition,
if the agencies on the RRT believe that
the response capability to the OSC/RPM
will be exceeded, then they also have
the option of activating the RRT.
   There was a request for clarification
as to whether a pollution report satisfies
the requirement for written confirmation
of a request for RRT activation under
 §  300.115(j)(2). EPA responds that a
written pollution report confirming the
request to activate the RRT would
satisfy the requirement; the pollution
report is the primary means of providing
information during the course of an

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Federal Register / Vol. 55, No.  46 / Thursday, March 8, 1990 / Rules  and Regulations
 incident. A request to activate the RRT
 should also be confirmed in a letter from
 another RRT representative.
  Also, it was suggested that
 § 300.115{k) be expanded to address the
 contingency of what happens when a
 federal lead agency fails to perform its
 assigned role. The comment stated that
 if this situation occurs, the RRT should
 be notified and EPA or the USCG should
 assume the federal responsibilities.
  In E.0.11735 and E.0.12580, the
 President has delegated certain
 functions  and responsibilities vested in
 him by the CWA and CERGLA to
 various federal agencies. If federal
 agencies cannot perform their assigned
 tasks, such federal agencies may
 authorize  another agency to perform the
 task through interagency agreement or
 contract. (See also preamble discussion
 below on  § 300.130(a).)
  Final rule: Proposed § 300.115 has
 been revised as follows:
  1. The second sentence of § 300.115(c)
 reads: "When the RRT is activated for
 response actions, the chair shall be the
 member agency providing the OSC/
 RPM."
  2. Section 300.115(i)(7): "Be prepared
 to provide response resources to major
 discharges or releases outside the
 region."
  3. Section 300.115{i)(8): "Conduct or
 participate in training and exercises as
 necessary to encourage preparedness
 activities of the response community
 within the region."
  Name: Section 300.120. On-scene
 coordinators and remedial project
 managers: general responsibilities.
  Proposed rule: Consistent with the
 delegation of the President's response
 authority to the various federal agencies
 under section 2(d)-(f) of Executive
 Order 12580, proposed § 300.120(b)
 specifies when federal agencies other
 than EPA  or USCG shall provide OSCs
 and RPMs.
  Response to comments: One
 commenter recommended that proposed
 § 300.120 be divided into two
 subsections. One subsection would
 discuss the responsibilities of an OSC
 and the other subsection would discuss
 the responsibilities of an RPM. In the
 commenter's view, the responsibilities
 of an OSC and an RPM do not overlap
 as much as was suggested in proposed
 § 300.120.
  Another commenter recommended
 that a distinction be developed between
 actions where the OSC is hi a
 monitoring role and actions where the
 response is undertaken using a federal
funding mechanism such as the oil
pollution fund established under CWA
section 311(k) or the Hazardous
                           Substance Superfund. The commenter
                           stated that when the response action is
                           federally funded, local responders
                           "interpret the OSC's actions as
                           tantamount to a command role."
                             In response, the NCP is intended to
                           provide a framework within which
                           response managers have the flexibility
                           to use their best judgment, consonant
                           with applicable law, regulation and
                           guidance. In general, the role of the RPM
                           parallels that of the  OSC. Also, in
                           general, the role of the OSC is the same
                           whether or not the response action is
                           federally funded. The roles as they are
                           described in the current NCP are
                           accurate, though not very detailed. EPA
                           feels that the comments are well taken,
                           and that it might be  useful to have
                           somewhat more detailed, separate
                           descriptions of OSC and RPM
                           responsibilities, and of any differences
                           in OSC actions depending on whether
                           the response is federally funded or
                           funded by the responsible party. EPA
                           has decided not to make such revisions
                           in today's rule but will explore this
                           matter with other federal agencies and
                           will also consider developing guidance
                           on this subject.
                             Another commenter pointed out that a
                           state law may provide a fire chief with
                           coordination authority over all on-scene
                           officials, federal, state, and local, and
                           inquired if the local fire chiefs authority
                           is superseded by proposed § 300.120. In
                           addition, the commenter suggested that
                           a conflict can be avoided if the authority
                           to supersede the local fire chiefs
                           authority was clearly spelled out.
                           Finally, the commenter recommended
                           that § 300.120 be amended to permit the
                           OSC to delegate his  authority to a state
                           or local official.
                             In response, the legal authority of the
                           OSC to take action to respond to a
                           discharge or release is section 311(c) of
                           the  Clean Water Act (CWA), 33 U.S.C.
                           1321(c) or section 104 of CERCLA. To
                           the  extent that an action of a state or
                           local official to direct response actions
                           conflicts with actions under federal law
                           to direct response, the federal law will
                           prevail if there is federal participation in
                           the response action.  However,
                           circumstances under which an OSC's
                           authority is changed (local or state to
                           federal, for example) should be spelled
                           out in federal and local contingency
                           plans, so that problems with conflicting
                           authorities do not arise at the scene of a
                           response action.
                             With regard to the recommendation
                           that § 300.120 be amended to permit the
                           OSC to delegate his/her authority to a
                           state or local official, such delegation is
                           allowed only to the extent authorized by
                           law. There is no mechanism provided
                           under the CWA for such a delegation.
 Section 104(d) of CERCLA, however,
 does permit certain agencies of the
 federal government to enter into
 contracts or cooperative agreements
 with a state to undertake, on behalf of
 the United States, actions authorized by
 section 104 of CERCLA. Finally,'
 changing § 300.120 to clearly state that
 the federal OSC's authority supersedes
 the authority of the local fire chief is not
 necessary because § 300,120 states that
 the OSC"*  *  * directs response efforts
 and coordinates all other efforts at the
 scene  *  * *."
  Paragraph (a): One commenter
 recommended that the term "hazardous
 waste management facility" used in
 proposed § 300.120(a)(l) be defined
 since, according to the comment, it is
 unclear whether all facilities under the
 jurisdiction, custody or control of a
 federal agency are considered to be
 hazardous waste facilities. According to
 the comment, if all such federal facilities
 are "hazardous waste management
 facilities," the section should be
 amended to conform to E.0.12580. The
 comment apparently relates to the
 following sentence in the proposed rule:
 "The USCG shall provide an initial
 response to the discharges or releases
 from hazardous waste management
 facilities within the coastal zone in
 accordance with DOT/EPA Instrument
 ofRedelegation *  * *."
  The comment appears to assume that
 this section is intended to apply to all or
 many federal facilities as that term is
 used in section 120 of CERCLA. Instead,
 the NCP reference to "hazardous waste
 management facility" is to its very
 narrow meaning within the terms of the
 DOT/EPA Instrument of Redelegation
 (May 27,1988) dealing with
 predesignation of Coast Guard and EPA
 OSCs. For this reason, it is not
 necessary to define this term in the NCP.
  With regard to § 300.120(a)(2), another
 commenter recommended that the term
 "federally funded" be deleted and
 "Fund-financed" be inserted, because
 EPA's authority to undertake response
 actions with regard to releases from
 facilities or vessels owned, possessed or
 controlled by other federal agencies is
 limited by E.0.12580. The recommended
 change is not necessary since proposed
 § 300.120(a)(2) provides for an exception
 to the general statement of EPA
 authority for facilities and vessels under
the jurisdiction or control of other
federal agencies. No change is
necessary since the exception is
consistent with Executive Order 12580.
  Paragraph (b): One commenter
recommended that § 300.120(b) be
amended to indicate which agency
would be responsible for providing

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            Federal Register / Vol. 55, No.  46 / Thursday, March 8, 1990 /Rules  and Regulations
OSCs and RPMs in the case of a release
from a Coast Guard vessel. In addition,
the commenter recommended that
"emergencies" be defined in
§ 300.120(b)(2).
  With regard to the first comment, in
accordance with sections 2 (e) and (f) of
E.0.12580, the Department of
Transportation is responsible for
providing OSCs and RPMs in the event
of a release from a Coast Guard vessel.
As written, proposed § 300.120(b)(2)
stated that in the case of a federal
agency other than the USCG, EPA, DOD
or DOE, the federal agency involved
shall provide the OSC or RPM. The final
rule does not include the USCG in
§ 300.120(b)(2) so that it is clear that the
USCG will respond to a release from a
USCG vessel.
  Regarding the second comment, the
preamble to the proposed rule provided
a definition of the term "emergencies"
for purposes of the delegations under
E.0.12580 (53 FR 51396). An additional
definition in § 300.120(b)(2)  is
unnecessary.
  Paragraph (c): One commenter stated
that the Department of Defense (DOD)
only has removal response authority for
incidents involving DOD weapons and
munitions. EPA agrees and has revised
this section to state that DOD will have
response authority for incidents
involving weapons and munitions within
the control, custody or jurisdiction of
DOD.
   Paragraphs (d) and (e): One
commenter stated that while
 § 300.120(d) is supposed to describe the
general responsibilities of OSCs and
RPMs, it is primarily concerned with
which federal agency will provide the
 OSC or RPM. EPA disagrees. In addition
 to specifying the agency that provides
 the OSC or RPM, § 300.120  also contains
 a description of the general
 responsibilities of OSCs and RPMs.
   In order to further clarify the general
 responsibilities of OSCs and RPMs, EPA
 has added language  to paragraphs (d)
 and (e) to make it clear that OSCs and
 RPMs are responsible for coordinating
 and directing responsible parties—as
 well as agencies and contractors—in
 their conduct of either federally
 financed or non-federally financed (e.g.,
 enforcement) response actions. Under
 this authority, OSCs and RPMs may stop
 or redirect work if, in their judgment, it
 appears likely to result in a release or
 threatened release of hazardous
 substances into the environment or
 poses an imminent and substantial
 endangerment to human health, welfare
 or the environment.
   Paragraph (f): One commenter stated
 that the role of the support agency
 coordinator (SAC) should not be limited
to responding as requested by the OSC/
RPM. Both the federal government and
the state government should designate
an OSC or RPM with parallel
responsibilities. EPA believes that it is
essential to have one person in charge
and responsible for seeing that the
response action proceeds expeditiously
and, therefore, has not made this
change.
  Paragraph (g): Two commenters
suggested that the NRT establish a
curriculum for OSCs and RPMs and a
certification process. In response, the
NCP is not the appropriate mechanism
for addressing this recommendation.
The comments on this topic have been
forwarded to the National Response
Team for further action as it deems
appropriate.
  Final rule: Proposed § 300.120 is
revised as follows:
  1. The fourth sentence of
§ 300.120(a)(l) has been amended by
adding the following: "*  *  *  except
as provided in paragraph (b) of this
section."
  2. The last sentence of § 300.120(a)(2)
has been amended by deleting "except
those involving vessels" and adding the
following: "except as provided in
paragraph (b) of this section."
  3.  Section 300.120(b)(2) has been
revised by deleting "USCG."
  4. Section 300.120(c) has been revised
as follows: "DOD will be the removal
response  authority with respect to
incidents  involving DOD military
weapons  and munitions or weapons and
munitions under the jurisdiction,
custody or control of DOD."
   5. EPA has added language to
paragraphs (d) and (e) to make it clear
that OSCs and RPMs are responsible for
coordinating and directing responsible
parties—as well as agencies and
 contractors—in their conduct of either
federally  financed or non-federally
financed  (e.g.) enforcement) response
 actions.
   Name:  Section 300.125. Notification
 and communications.
   Proposed rule: The proposed NCP
 added the word "notification" to the
 title of this section, and moved its
 location to more accurately reflect its
 place in the response sequence. Both the
 title and the location change better
 reflect the importance of the National
 Response Center (NRG) in the national
 response system.
   Response to comments: One series of
 comments cited potential confusion
 about notification procedures—reporting
 of spills or releases—to any place other
 than the NRG, since the proposed NCP,
 in various places, suggests such
 alternatives as notifying EPA or USCG
OSCs directly when it is "not
practicable" to reach the NRG. The
commenter suggested that the NCP
should clarify that reporting to the NRC
is a provision in law,  not an option. No
matter how many other places a spill is
reported, the notification must be made
to the NRC by the person in charge of
the vessel or facility,  as soon as
possible.
  EPA agrees with these comments, but
believes the language in § 300.125 is
simple and direct, and makes clear the
requirement for notice to the NRC. Two
changes were made in notification
language elsewhere in the rule, however,
to emphasize the commenter's point. In
subpart D, § 300.300(b), and in subpart
E, § 300.405(b), identical changes were
made to reinforce the requirement for
reporting to the NRC regardless of other
reports or notifications made. The
operative sentences will now read: "If it
is not possible to notify the NRC or
predesignated OSC immediately, reports
may be made immediately to the nearest
USCG unit. In any event, such person in
charge of the vessel or facility shall
notify the NRC as soon as possible."
(New language italicized.)
  It was suggested that more places in
the NCP should repeat the concept that
whenever there is doubt as to the size or
nature of a spill or release, or which
reporting requirements are applicable,
reporting to the NRC is encouraged.
Although recognizing the potential for
confusion, EPA believes that the rule
should state the notification or reporting
requirement as simply and directly as
possible, in the proper sequence of
actions delineated by the rule. Other
methods, outside of rulemaking, should
be found to make the industry and the
general public aware of these
responsibilities. Repeating the concept
in various places with various different
wordings has the potential for additional
interpretations, which may be
misleading. Some suggested language
described which actions do not meet  the
requirements of the law. The final rule
describes which actions do satisfy the
statutory requirements.
   Also, the commenter recommended
that the tone and clarity of language on
reporting requirements in the preamble
 to the proposed rule  (53 FR 51401, third
 column) should be included in the rule
itself. EPA believes that these two
 paragraphs are more appropriate in a
 preamble and is repeating them here
 because of then1 importance:
   EPA reiterates that statutory and
 regulatory reporting requirements are
 still keyed to discharges of oil and
 releases of hazardous substances
 exceeding a reportable quantity (RQ).

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Federal Register / Vol. 55, No.  46 / Thursday, March 8, 1990 / Rules  and Regulations
 EPA is aware, however, that many
 notiflers do not have the training or
 knowledge to determine if there is an
 RQ of a substance involved in a release.
 Therefore, whenever there is any doubt
 about whether a release exceeds an RQ,
 EPA encourages that the release be
 reported to the NRG. Reporting ensures
 positive referral of every incident to
 each federal agency with jurisdiction
 and/or regulatory interest.
   The NRG is tasked with processing all
 reports regardless of the material
 involved or the reported significance of
 the incident. All reports are passed
 immediately by telephone to the proper
 federal response entity and recorded in
 the NRG data base at the time of receipt.
 Public, government, industry, or
 academic requests for access to stored
 data may be made through a written
 Freedom of Information Act request to
 the Chief, National Response Center,
 2100 Second Street NW., Room 2611,
 Washington, DC 20593.
   One commenter suggested that many
 people are not aware of the range of
 functions for which the NRG is
 responsible. After careful scrutiny, EPA
 has decided that not all the NRG
 functions are appropriately listed in a
 section covering on-scene action, the
 intent of § 300.125. However, the basic
 activities will be listed in a new entry in
 § 300.175, Federal agencies: additional
 responsibilities and assistance.
   One commenter said that § 300.125(b)
 should not put the responsibility for the
 NRG facility/service on the Coast Guard
 as a requirement, since support for the
 NRG is a cooperative federal effort
 under Coast Guard lead. EPA agrees
 and has inserted the phrase "in
 conjunction with other NRT agencies,"
 to this section.
   One comment cited an error in the
 commercial phone number listed in the
 proposed NCP. EPA agrees; the correct
 telephone number is 202-267-2675.
  Final rule: Proposed §§ 300.125,
 300.300{b) and 300.405(b) are revised as
 follows:
  1. Section 300.125(a) has been revised
 to more accurately describe the
 responsibilities of the Natipnal
 Response Center for notification and
 communications.
  2. Section 300.125(b) has been
 amended by including the phrase "in
 conjunction with other NRT agencies."
  3. Section 300.125(c) now includes the
 correct commercial telephone number
 for the NRG: 202-267-2675.
  4. The last two sentences hi
 §§ 300.300{b) and 300.405(b) now read as
 follows: "If it is not possible to notify the
NRG or predesignated OSC
immediately, reports may be made to
 the nearest USCG unit. In any event,
                           such person in charge of the vessel or
                           facility shall notify the NRG as soon as
                           possible."
                             Name: Section 300.130.
                           Determinations to initiate response and
                           special conditions.
                             Proposed rule: Proposed § 300.130(a)
                           authorized EPA or the USCG to respond
                           to discharges of oil or releases of
                           hazardous substances, pollutants or
                           contaminants except with respect to
                           such releases on or from vessels or
                           facilities within the jurisdiction, custody
                           or control of other federal agencies. This
                           section also described requirements
                           with respect to certain kinds of releases,
                           e.g., radioactive materials.
                             Response to comments: Paragraph (a):
                           Several commenters commented that
                           some federal agencies may be unable,
                           due to lack of expertise, orientation, or
                           funding, to respond to the threat of
                           release or actual release of hazardous
                           substances, pollutants or contaminants
                           at their facilities. Accordingly, the
                           commenters recommended that EPA and
                           the USCG be given unrestricted
                           response authority over releases,  actual
                           or threatened, at all federal facilities,
                           except DOD and DOE facilities, and that
                           federal agencies other than EPA, the
                           USCG and, presumably, DOE and DOD
                           should only be given lead agency
                           authority if and when they meet certain
                           minimum standards. One commenter
                           stated that proposed § 300.130(a) does
                           not specifically grant authority to a
                           federal agency to initiate a response,
                           and that the section should grant this
                           authority. The commenter noted that the
                           executive order delegating the
                           President's authority under CERCLA
                           grants this authority, and indicated that
                           § 300.130(a) should reference the
                           executive order.
                             In response, EPA disagrees with the
                           commenter's suggestion that the USCG
                           and EPA should retain unrestricted
                           response authority over releases at
                           federal facilities. In section 115 of
                           CERCLA, Congress specifically
                           authorized the President to "delegate
                           and assign any duties or powers
                           imposed upon or assigned to him" in the
                           statute. By Executive Order 12580 (52 FR
                           2923, Jan. 29,1987), the President
                           delegated to federal agencies and
                           departments the responsibility and
                           authority for taking most response
                           actions at non-NPL sites within their
                           jurisdiction, custody, or control. (EPA
                           believes that the explanation of these
                           authorities in this preamble is sufficient,
                           and need not be specifically repeated in
                           the text of the rule.) Moreover, CERCLA
                           section 120 makes clear that federal
                           agencies are primarily responsible for
                           the conduct of the RI/FS and remedial
 action at federal facility sites that are
 listed on the NPL. Amending
 § 300.130(a) of this rule to designate
 USCG and EPA as lead agencies for
 responses at federal facility sites would
 not be in accord with these mandates.
  At the same time, it is important to
 note that federal agencies may request
 the services of the USCG or EPA on a
 reimbursable basis, and the NRT/RRT
 system provides for quick, appropriate
 communication of such requests.
 Experience to date has generally shown
 this to be adequate. A memorandum of
 understanding between a federal agency
 and EPA or USCG would also be
 possible to cover both required action
 and funding procedures, allowing for
 EPA and USCG to manage responses
 under certain predetermined
 circumstances.
  Some commenters further
 recommended that federal agencies
 should be required to immediately notify
 the NRG and the appropriate RRT
 whenever the federal agencies are
 unwilling or unable to respond to a
 release.
  In response, as a threshold matter, the
 federal agencies and departments are
 already required by section 103(a) of
 CERCLA to report all releases of
 reportable quantities of hazardous
 substances to the National Response
 Center. (Pursuant to section 103(a), the
 National Response Center notifies the
 Governor of each state whenever a
 report of a release is made with respect
 to that state.) In addition, with regard to
 federal facilities on the Hazardous
 Waste Compliance Docket (which
 includes releases for which a report is
 required under CERCLA section 103(a)
 and (c)), the federal agencies and
 departments are required to conduct a
 Preliminary Assessment (PA), after
 which EPA will evaluate whether the
 release should be listed on the NPL.
  As to the specific suggestion of the
 commenter that federal agencies may be
 "unwilling or unable" to respond to
 certain releases, it is important to note
 that pursuant to CERCLA section 115
 and E.0.12580, the federal  agencies and
 departments have been delegated the
 responsibility under CERCLA section
 104 for evaluating and taking response
 actions, as necessary, for most releases
 that occur at non-NPL facilities within
 their jurisdiction, custody, or control
 (E.0.12580, at section 2(d) and (e)). The
 federal agencies also have
responsibilities for the conduct of
response actions at NPL sites pursuant
 to CERCLA section 120. EPA does not
believe that a separate reporting
requirement is necessary to address
 those situations where the federal

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                                                                           13
agency or department decides that a
response action is not necessary.
  In situations where a federal agency
experiences some difficulty in
responding to a release, it is the general
practice of the agencies to contact one
or more of the sister agencies that have
special expertise regarding the
contamination problem (e.g., the
Department of Defense for munitions
waste, EPA more generally). As
discussed above, the agencies may
request the assistance of EPA or the
USCG on an emergency basis, or enter
into a more general memorandum of
understanding. Finally, federal facility
releases are included on the Hazardous
Waste Compliance Docket, and are then
evaluated by EPA for possible inclusion
on the NPL; thus, EPA will be aware of
significant releases to which the federal
agency or department has been unable
to respond as those releases move
through the evaluation process. In
conclusion, it is unnecessary to require
the federal agencies to provide special
notice to the NRG as suggested by the
commenter.
  Paragraph (b): One commenter
recommended that the first line of
§ 300.130(b)(l) be revised by deleting
"any oil is discharged" and inserting
"there is a discharge of oil." The
recommendation is suggested on the
grounds that the definition of
"discharge" in subpart A does not
necessarily include the use of discharge
as a verb. EPA does not agree with this
comment.
  The commenter pointed out that under
section 104(a)(l) EPA, as the President's
delegate, is authorized to take response
action when there is a release or
threatened release of a pollutant or
contaminant only if the release or
threatened release may present an
imminent or substantial endangerment
to the public health or welfare.
Therefore, the commenter recommended
that proposed § 300.130(b)(2) be revised
to conform to section 104(a)(l) of
CERCLA. In response, although
"pollutant or contaminant" is defined for
purposes of the NCP to mean any
pollutant or contaminant that may
present an imminent and substantial
danger to public health or welfare [see
 § 300.5), EPA has made the requested
 change for the purpose of emphasis.
. Final rule: Proposed § 300.130 has
 been revised as follows:
   1. Section 300.130(a) has been revised
 to begin "In accordance with CWA and
 CERCLA,* * ,*."
   2. Section 300.130(b)(2) has been
 revised to read: "Any hazardous
 substance is released or there is a threat
 of such a release into the environment,
 or there is a release or threat of release
 into the environment of any pollutant or
 contaminant which may present an
 imminent and substantial danger to the
 public health or welfare; or"
   Name: Section 300.135. Response
 operations.
   Proposed rule: This section describes
 the responsibilities of the OSC/RPM to
 direct response efforts and coordinate
 all other efforts at the scene of a
 discharge or release. This section
 provides that the first federal official is
 authorized to coordinate activities on-
 scene and to initiate, in consultation
 with the OSC, any necessary actions.
 This official may also initiate Fund-
 financed actions as authorized by the
 OSC.
   Response to comments: One
 commenter stated that while it is
 understood that specific response
 actions for every situation cannot be
 defined, guidance on how a response
 escalates from local to federal levels
 would be helpful. EPA believes that it is
 not practicable to provide specific
 guidance on how a response escalates
 from local to federal levels, due to the
 vast number of variables that are
 implicit in every spill scenario.
   Referring to § 300.135(b), one
 commenter said that, regarding
 expenditures from the various federal
 funds, members of state pollution
 response agencies should be given the
 same scope of action as described in
 § 300.135(b) for the "first federal
 official" to arrive on scene. The
 commenter argued that state response
 personnel are knowledgeable of "first
 response" measures, as well as being
 familiar with basic cost documentation
 procedures. The commenter noted that
 existing EPA and USCG procedures are
 too cumbersome to allow negotiation of
 a cooperative agreement or contract in
 the initial hours of an emergency
 response operation.
   EPA acknowledges the fact that state
 response personnel are knowledgeable
 of first response measures as  well as
 basic cost documentation procedures.
 EPA and USCG procedures may be
 cumbersome in negotiating a
 cooperative agreement, but these
' procedures are necessary in order to
 maintain control of the two pollution
 funds. Under certain situations, the
 states can be reimbursed for their costs
 by the CWA 311(k) fund, in accordance
 with USCG rules for managing this fund.
    Another commenter suggested that,
 for consistency, the authority of the first
 federal official to arrive at the scene of a
 release, which is discussed in
  § 300.135(b), should be discussed under
  § 300.130 with the other authorizations
  for the initiation of response. EPA
disagrees. This discussion is more
appropriate in § 300.135(b), because it
deals primarily with the coordination of
response activities on scene by the first
federal official.
  One commenter indicated that, under
§ 300.135(d), states should be
encouraged to enter into cooperative
agreements for removals under section
311 of the CWA or under CERCLA.
Although EPA supports the concept, it
does not feel it is necessary to add it as
a regulatory requirement. (See also
preamble section below on state
involvement in removal actions.)
  Another commenter noted that the
requirement or expectation under
§ 300.135(e) that RPMs will consult with
the RRT should not be promulgated
unless the relationship between RPMs,
the NRT, and the RRT has been
clarified. In response, the relationship
between RPMs, the NRT, and the RRT
during remedial actions generally
parallels the relationship between
OSCs, the NRT, and the RRT during
removal actions. These relationships are
described in §§ 300.110, 300.115, and
300.120.
  One commenter stated that
§ 300.135(f) and the  definition of support
agency  coordinator  suggested that the
concept of support agency only applies
to CERCLA releases. If. so, the reference
to the OSC advising the support agency
for oil discharges, should be deleted.
EPA agrees. By definition, the support
agency  coordinator "interacts and
coordinates with the lead agency for
response actions under subpart E of this
part." There is no designation of the use
of a support agency or support  agency
coordinator under the CWA.
  In § 300.135(h),  one commenter asked
who defines "possible public health
threat." The commenter contended that
although it is necessary to have some  -
broad language, misunderstandings can
be reduced by more definitive phrases.
  The determination of a "possible
public health threat" is made by the
OSC/RPM in consultation with other
appropriate agencies. EPA believes that
§ 300.135(h) appropriately addresses this
point. This section specifically states
that assistance is available from the
Department of Health and Human
Services (HHS) in making the
determination of public health  threats.
   Under § 300.135(i), one commenter
indicated that there should be  a
requirement that the name of the office
designated by each federal agency to
coordinate response should be
submitted to the RRT for inclusion in the
regional contingency plan (RCP) and to
the OSC and State Emergency Response
Commission (SERC) for inclusion in

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Federal  Register / Vol. 55, No. 46  / Thursday, March 8, 1990  /  Rules and Regulations
local contingency plans (LCPs) and
Local Emergency Planning Committee
(LEPC) plans.
  EPA believes that it is important that
this information be passed on to the
RRT and local response agencies.
However, it is not necessary to place
this requirement in the NCP. If it was,
EPA should require, through the NCP,
every facility, vessel, etc., to provide the
same  information to the RRT and local
response agency. Through their normal
contingency planning process, this
information should be readily available
to the RRT and local response agencies.
  A commenter noted that under
§ 300.135(m), it is not clear when it
would be appropriate for an RPM to
submit pollution reports to the RRT. In
response, EPA wishes to clarify that the
pollution reports described in
§ 300.135(m) are prepared for removal
actions; thus,  these reports are generally
submitted by an OSC rather than an
RPM.  EPA has deleted the reference to
"RPM" in this section.
  Finally, it was commented that
§ 300.135(n), which requires that OSCs/
RPMs inform public and private
interests and consider their  concerns
throughout the response, does not
address what kind of responses are
being referenced. Also, this  section
should encourage appropriate public
and private interests to become
appropriately involved after the first
notification and not to expect the OSC
to keep them informed through updates.
  In response, EPA believes that
specifying the type  and size of the
incident response is not meaningful. All
incident responses require some kind of
communication between all public and
private parties. Regarding the second
part of the comment, EPA has no
authority to require the public and
private interests to  contact the OSC for
information. Keeping the appropriate
interests informed by the OSCs/RPMs is
simply a policy issue and represents
good program practices.
  Final rule: Proposed § 300.135 has
been revised as follows:
  1. In § 300.135(f), the words
"discharges or" have been deleted.
  2. Section 300.135(j) has been revised
to read as follows (see preamble
discussion on § 300.615 (notification)]:
"The OSC/RPM shall promptly notify
the trustees for natural resources of
discharges  or releases that are injuring
or may injure natural resources under
their jurisdiction. The OSC or RPM shall
seek to coordinate all response activities
with the natural resource trustees."
  3. In § 300.135(m), the reference to
"RPM" has been deleted.
                             Name: Section 300.140. Multi-regional
                           responses.
                             Proposed rule: This section discusses
                           the procedures to follow in the event a
                           discharge or release covers more than
                           one jurisdictional area.
                             Response to comments: Commenters
                           noted that § 300.140 should clearly state
                           that the OSC responsible for the area in
                           which the release originated is initially
                           in charge. Changing OSCs can be
                           accomplished after this point. EPA
                           disagrees with the comments. Sections
                           300.140 (a) and (b) clearly outline OSC/
                           RPM responsibilities in spill situations
                           when more than one area will be
                           impacted.
                             Another commenter pointed out that,
                           in reality, the border between regions or
                           districts becomes a no-man's land in
                           which neither wishes to respond. While
                           there can only be one OSC, the  other
                           affected regions/districts should have a
                           representative at the command  post.
                           EPA disagrees with this comment
                           concerning command posts and,
                           therefore, has not changed the NCP. At
                           the time of the spill, a simple agreement
                           between the two predesignated OSCs or
                           RRTs can alleviate this problem.
                             Another commenter noted that the
                           NCP should reflect the fact that more
                           than one OSC can be designated if the
                           area impacted extends for many miles.
                           EPA disagrees. There should only be
                           one OSC coordinating the response
                           efforts. The OSC may, however, utilize a
                           number of OSC  representatives to
                           handle the response efforts in the
                           outlying sections of a large spill area.
                             Final rule: Proposed § 300.140(c) is
                           revised to delete an inappropriate
                           reference to EPA/USCG agreements.
                             Name: Section 300.145. Special teams
                           and other assistance available to OSCs/
                           RPMs.
                             Proposed rule: This section describes
                           the special teams that are available  to
                           the OSC/RPM and the availability of the
                           scientific support coordinator (SSC).
                             Response to comments: One
                           commenter stated that there is no
                           reason for the title of this section to  be
                           changed from "Special Forces"  to
                           "Special Teams." The change only
                           diminishes the role of the special forces.
                           EPA disagrees. The change does not
                           diminish the role of the special teams. It
                           merely places a title upon this group of
                           specialized teams that is more
                           commonly used (i.e., Strike Teams,
                           Public Information Assist Teams,
                           Environmental Response Teams).
                             Another commenter indicated that it
                           may be appropriate to specifically
                           identify the ATSDR Public Health
                           Advisors and Emergency Response
                           Branch in this section as a special
resource available to an OSC, as their
availability is not well advertised. In
response, ATSDR's role is not the same
as that of a team, which is a unit
organized and specially prepared to
respond on call. ATSDR has both
specific authorities for response and
special expertise which might be called
upon by an OSC, and thus their role is
like those of other NRT member
agencies. These are outlined in
§ 300.170. Other means of highlighting
their availability, more appropriate and
effective than the suggested revision to
the NCP, would be to ensure that
ATSDR activities and availability are
referenced in local plans and OSC
plans.
  A commenter stated that § 300.145(d)
should define the capabilities of an SSC
and include what they can be expected
to provide to the OSC. In response,
although the term SSC as used
throughout the NCP implies a single
individual, in the case  of the National
Oceanic and Atmospheric
Administration (NOAA), this support is
in fact provided by a team of experts,
several of whom may be in the field at
the same time. This section has been
revised to reflect the capabilities of an
SSC.
  Another commenter stated that an
OSC often requires more information
than is available from the responsible
party, the Technical Assistance Team
(TAT), or the SSC. Provided that the
responsible party is willing to pay for
additional scientific support, the  OSC
should be allowed to utilize other
scientific experts without opening
federal accounts.
  In response, the OSC is allowed to
utilize other scientific experts without
opening federal accounts, provided he/
she can convince the responsible party
to pay for them. In most situations,  if a
particular resource  is needed by the
OSC/RPM, the OSC/RPM will request
that the responsible party fund the
particular resources. If the responsible
party refuses, then the only other option
the OSC/RPM has is to fund the
resource using federal monies.
  One commenter recommended that
the description of the EPA Radiological
Assistance Teams (RATs) in § 300.145(f)
should be moved to the general agency
descriptions in § 300.175(b)(2) or
deleted. If this reference is retained, the
commenter stated that something should
indicate how the Radiological Response
Coordinator is to be contacted. In
response, proposed § 300.145(f) stated
that the EPA Office of Radiation
Programs (ORP) maintains the
Radiological Assistance Teams. This
section also stated that the assistance of

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            Federal Register / Vol. 55, No. 46 / Thursday, March  8, 1990 / Rules and Regulations          15
Radiological Assistance Teams can be
obtained by contacting the Radiological
Response Coordinator. However, it is
not explicitly stated that the
Radiological Response Coordinator is
located and can be contacted in ORP.
EPA will make the clarification by
adding "*  * *  in the EPA Office of
Radiation Programs" after "Radiological
Response Coordinator." EPA believes
that it is more appropriate to reference
EPA's Radiation Program in § 300.145
rather than § 300.175 because the
reference directly relates to providing
assistance to the OSC/RPM.
  Final rule: Proposed § 300.145 is
revised as follows:
  1. Section 300.145(d) has been revised
to add the following sentence at the end
of the section:  "In .the case of NOAA,
SSCs may be supported in the field by a
team providing, as necessary, expertise
in chemistry, trajectory modeling,
natural resources at risk, and data
management."
  2. In § 300.145(f), EPA has added
"*  *  * in the EPA Office of Radiation
Programs"  after "Radiological Response
Coordinator," in the next to last
sentence.
  Name: Section 300.150. Worker health
and safety.
  Proposed rule: Section 300.150
requires that each employer at response
actions comply with the requirements of
the Occupational Safety and Health Act
of 1970, applicable state laws, and EPA
regulations regarding worker safety and
health. Section 300.150 applies to actions
taken either by a responsible party or a
lead agency and requires that there be
an occupational safety and health
program for the protection of workers at
the response site.
   Response to comments: One
commenter recommended using the
Incident Command System (ICS)
concept as contained  in the
Occupational Safety and Health
Administration (OSHA) rule to integrate
response activities. In response, EPA
notes that § 300.150(a) requires that
response activities meet the
requirements of 29 CFR 1910.120,
Hazardous Waste Operations and
Emergency Response, promulgated by
 OSHA, including the ICS concept
 (§ 1910.120(q)(3){i)J. Executive Order
 12196 conveys the President's mandate
 that federal agencies  comply with
 OSHA standards. State applicability is
 covered as described below. Routine
 hazardous waste operations do not
 require use of ICS. Thus, no change is
 needed in the rule, since if the situation
 warranted use of the  ICS concept, it
 would already be covered within the
 § 300.150(a) requirements of the NCP.
  The responsibility for assuring worker
safety and health at a response scene is
that of the employer. This is stated
expressly in proposed § 300.150(a) (and
in final § 300.150(e)). One comment
indicated some confusion as to this
requirement, particularly regarding
firefighters involvement during response
actions. In response, worker safety and
health during response activities is
protected by the regulations cited in this
section, whether the workers are
employed by private employers, or
federal, state, or local governments.
Federal employees are covered by the
OSHA standards, as stated above. State
and local government employees in the
23 states and 2 jurisdictions which have
their own OSHA-approved occupational
safety and health plans are covered by
the state standards which must be
comparable to the federal standards.
These states are Alaska, Arizona,
California, Connecticut, Hawaii,
Indiana, Iowa, Kentucky, Maryland,
Michigan, Minnesota, Nevada, New
Mexico, New York (for state and local
government employees only), North
Carolina, Oregon, Puerto Rico, South
Carolina, Tennessee, Utah, Vermont,
Virginia, Virgin Islands,  Washington,
and Wyoming. State and local
government employees (such as
firefighters) in the remaining 27 states
(such as Ohio, plus Guam and the
District of Columbia) are subject to EPA
regulations identical to OSHA standards
for response action workers under
section 126 of SARA and 40 CFR part
311. The EPA rule will apply to
firefighters by March 6,1990 for ,
emergency response (and September 21,
1989 for other relevant activities).
   One commenter suggested that
proposed § 300.150 be revised to state
that the OSC should be alert to unsafe
work practices and notify the regional
OSHA office when such practices are
observed. EPA agrees that the OSC may
be in a position to observe unsafe work
practices. However, no change is needed
because EPA believes that since
workplace safety and health conditions
are the responsibility of the employer,
unsafe practices should first be reported
to the appropriate employer because the
employer is in a position to make an
immediate correction. If the condition
remains uncorrected, it should be
reported to the appropriate enforcement
 authority, whether it is federal OSHA,
 state OSHA, or EPA.
   Further, highlighting a special
 responsibility for an OSC in this area
 carries additional implications—if the
 OSC fails to notice the violation, the
 employer might see that as official
 approval of his practice. Also, in
 general, the NCP sets out an
organization and framework for
generally needed actions and
responsibilities, within which the OSC
has, and must have, latitude to exercise
his judgment. No section of the plan lists
all possible actions of an OSC, however
exceptional.
  One commenter noted that the
National Contingency Plan (NCP)
requires CERCLA actions to directly
comply  with OSHA standards (proposed
§ 300.150), rather than complying only to
the extent those standards are
"applicable or relevant and appropriate
requirements" (ARARs) under CERCLA
section  121(d)(2), 42 U.S.C. 9621(d)(2).
The commenter questioned why OSHA
standards should be treated differently
from other federal statutes.
  In response, there are two principal
reasons for the treatment of OSHA
standards as non-ARARs in the NCP.
First, as discussed below, Congress
appears to have intended that certain
OSHA standards apply directly to all
CERCLA response actions. Second, EPA
believes that OSHA is more properly
viewed as an employee protection law
rather than an "environmental" law, and
thus the process in CERCLA section
121(d) for the attainment or waiver of
ARARs would not apply to OSHA
standards.
   However, before addressing those
issues in more detail, review of the
comment revealed an inconsistency in
the manner in which OSHA standards
are considered  under the NCP. As the
commenter notes, proposed NCP
 § 300.150 directly requires CERCLA
actions to comply with certain OSHA
standards (e.g., 29 CFR parts 1910,1926)
(53 FR at 51489), while at the same time,
the preamble to the proposed rule
included most OSHA standards in
EPA's list of potential ARARs (53 FR at
51448).  This situation requires
clarification, because requirements that
are promulgated as part of the NCP are
not evaluated for attainment or waiver
as part of the ARARs process.
   As a threshold matter, EPA believes
 that Congress intended certain OSHA
 standards (those for response action
 workers) to be  always applicable to
 CERCLA response actions. Pursuant to
 mandates in CERCLA section lll(c)(6)
 and SARA section 126, the Department
 of Labor has promulgated regulations
 that apply directly to worker safety
 during  hazardous waste operations and
 emergency response actions, including
 CERCLA actions:
   (a) *  * * (1) Scope. This section covers the
 following operations * *  *  : (i) Clean-up
 operations required by a governmental body,
 whether federal,  state,  local or other
 involving hazardous substances that are

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16          Federal Register /  Vol. 55, No. 46 / Thursday,March 8, 1990 / Rules andRegulations
conducted at uncontrolled hazardous waste
sites (including, but not limited to, the EPA's
National Priority List (NPL), state priority list
sites, sites recommended for the EPA NPL,
and initial investigations of government
identified sites which are conducted before
the presence or absence of hazardous
substance has been ascertained.
29 CFR 1910.120 (emphasis added).
Thus, these regulations apply
specifically to the response actions
detailed in the NCP, and compliance
with these standards is properly
required in the text of § 300.150.
  Other OSHA standards, however, are
of general applicability and were not
developed specifically for CERCLA
response actions (e.g., OSHA
Construction standards, Shipyard
standards, Longshoring standards, etc.).
EPA believes that these general OSHA
standards are essentially workplace
standards, designed to cover
occupational exposures; they are
properly viewed as requirements of a
"federal environmental law," and thus
do not come within the scope of ARARs
under CERCLA section 121(d)(2).1
Rather, like the requirements of other
non-environmental laws, such
requirements would apply of their own
force, not through the CERCLA process.
Thus, OSHA standards are no longer
included on the list of potential ARARs.
The final NCP package (§ 300.150) has
been modified to reflect this approach,
which EPA believes is consistent with
both OSHA and CERCLA.
  EPA does not believe that these
changes will reduce compliance with
OSHA standards at  Superfund sites. The
OSHA standards for response action
workers will be met at every CERCLA
site, and the more general OSHA
standards will continue to be met where
they apply.
  EPA notes that there are some
standards in OSHA that set
contaminant levels for the workplace
(see 29 CFR part 1910, subpart Z,
limitations on exposure to toxic and
hazardous substances) that may also be
relevant—although not applicable—to
the determination of a cleanup level at a
CERCLA site (due to the absence of
other standards). In such a case, those
standards may be included among the
requirements "To Be Considered"
(TBCs).
  In addition, the following changes
were also made to proposed § 300.150.
The statement that "the OSH Act
  1 CERCLA section 121(d)(2) defines potential
ARARs ns the standards, requirements, criteria or
limitations under "any Federal environmental law."
Nolo lhat the 1905 NCP—which did consider OSHA
requirements to be ARARs—defined ARARs as
"requirements of Federal public health and
environmental laws."
requirements can be enforced, as
appropriate, by the relevant federal or
state agencies," has been removed from
the final rule; although the statement is
correct, it is more appropriate for a
preamble discussion. Further on this
point, EPA notes that although OSHA
standards apply to the federal
government by Executive Order, they
are not independently enforceable
against the federal government; 2
accordingly, NCP § 300.150(c) has also
been revised to state that the lead
agency should make OSHA programs
available to response action employees,
consistent with and to the extent
required by 29 U.S.C. 1910.120.
  The revisions to this section do not
reflect any reduced commitment for
compliance with applicable safety and
health requirements, or any reduced
responsibility for private employers to
comply with worker protection
standards.
  Final rule: Proposed § 300.150 has
been revised to read as follows:
  (a) Response actions under the NCP will
comply with the provisions for response
action worker safety and health in 29 CFR
1910.120.
  (b) In a response action taken by a
responsible party, the responsible party must
assure that an occupational safety and health
program consistent with 29 CFR 1910.120 is
made available for the protection of workers
at the response site.
  (c) In a response taken under the NCP by a
lead agency, an occupational safety and
health program should be made available for
the protection of workers at the response site,
consistent with, and to the extent required
by, 29 CFR 1910.120. Contracts relating to a
response action under the NCP should
contain assurances that the contractor at the
response site will comply with this program
and with any applicable provisions of the
OSH Act and state OSH laws.
  (d) When a state, or political subdivision of
a state, without an OSHA-approved state
plan is the lead agency for response, the state
or political subdivision must comply with
standards in 40 CFR part 311, promulgated by
EPA pursuant to section 126(f) of SARA.
  (e) Requirements, standards, and
regulations of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 651 et seq.)
(OSH Act) and of state laws with plans
approved under section 18 of the OSH Act
(state OSH laws), not directly referenced in
paragraphs (a) through (d) of this section,
must be complied with where applicable.
Federal OSH Act requirements include,
among other things, Construction Standards
(29 CFR part 1926), General Industry
Standards (29 CFR part 1910), and the general
duty requirement of section 5(a)(l) of the
OSH Act (29 U.S.C. 654(a)(l)). No action by
the lead agency with respect to response
activities under the NCP constitutes an
  2 FederalEmp. for Non-Smokers'Rights v. U.S.,
446 KSupp. 181 (D.D.C. 1978), aff'd 598 F.2d 310
(D.C.Cir.), cert, denied, 444 U.S. 926.
exercise of statutory authority within the
meaning of section 4(b)(l) of the OSH Act.
All governmental agencies and private
employers are directly responsible for the
health and safety of their own employees.
  Name: Section 300.155. Public
information and community relations.
  Proposed rule: This section stated that
OSCs/RPMs and community relations
personnel should ensure that all
appropriate public and private interests
are kept informed when an incident
occurs. This section also stated that an
on-scene news office be established to
coordinate media relations and to issue
official federal information on an
incident.
  Response to comments: A commenter
noted that there are three types of media
coverage during an emergency:
Newspapers, radio, and television. The
comment suggested that television is
most problematic to those responding to
an incident and that this section did not
address how to coordinate a response
with televised coverage of the incident.
  In response, EPA believes that the
rule appropriately addresses the
responsibility to provide information
about an incident. It is not necessary or
appropriate to include details in the
NCP of different approaches to different
media. In a separate effort, however, the
NRT is considering additional guidance
and support for incident-specific
response teams in implementing public
information procedures.
  Another commenter noted that the
community relations requirements
referenced in § 300.155 are all from
subpart E. The comment questioned
whether any community relations
requirements, other than those
specifically stated in § 300.155, apply to
responses to discharges of oil.
  In response, § 300.155 appears in
subpart B, which is the basic
responsibility and organization for
response which underlies the entire
NCP, thus including response to
discharges of oil under subpart D. The
public information and community
relations requirements outlined in
§ 300.155 are those generally applicable
to all responses, and generally sufficient
for emergency or relatively short term
response actions such as those
encountered in oil responses as covered
in subpart D. Responses under subpart
E, however, include long term actions at
hazardous waste sites, and for these,
there are specific and detailed
requirements for community information
and involvement in decision-making
over the course of a response which may
include removal or remedial actions
carried out over a considerable period of
time. These community relations

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                                                                         17
provisions might be applicable in a long
term cleanup that followed an
emergency release, hence the cross
references linking the basic or minimal
requirement to the more detailed
program which is mandatory for long
term responses, but optional for
emergency or short term responses.
  Final rule: EPA is promulgating the
rule as proposed.
  Name: Section 300.160. Documentation
and cost recovery.
  Proposed rule: Section 300.160
discusses the procedures for
documentation of cost recovery for a
response action. Section 300.160(a)
states that an accurate accounting of
federal, state or private-party costs
incurred for response actions can be
supported with an OSC report as
required by  § 300.165 for all major
releases and Fund-financed removals.
Section 300.160(c) states that "Federal
agencies are to make resources
available, expend funds, or participate
in response  to discharges and releases
under their existing authority," and
adds, "The ultimate decision as to the
appropriateness of expending funds
rests with the agency that is held
accountable for such expenditures" (53
FR 51490). Section 300.160(d) is a new
section of the proposed NCP
incorporating 1986  amendments to
CERCLA that state that responsible
parties are liable for the costs of any
health assessment  or health effects
study conducted under the authority of
CERCLA section 104(i). In addition, the
preamble  to the proposed NCP
discussion of § 300.160(d) detailed the
types of studies for which responsible
parties are held liable (53 FR 51402).
   Response to comments: Several
commenters requested that EPA
elaborate in the preamble discussion of
 § 300.160 on what are "standard EPA
procedures  for cost recovery" as stated
in the proposed rule (53 FR 51490). One
asked that EPA propose a list of
guidance documents for cost recovery
procedures. Another asked that EPA
make available its list of standard cost-
recovery procedures for public
comment. Another asked that EPA
circumscribe cost recovery to those
 studies which are determined to be
 appropriate or necessary. In a related
 comment, one group asked that the NCP
 clarify the scope of costs recoverable
 and recognize that OSC reports are a
 poor method of documenting those
 costs. This commenter asked for
 clarification on the involvement of the
 RRT or NRT in cost—recovery activities
 for remedial actions, and an explanation
 given for their involvement. Another
asked that § 300.160(a) apply to oil
discharges.
  Most comments summarized above
requested discussion of procedures for
and staff participation in cost recovery
that more properly belongs in EPA
guidance rather than in the NCP. The
preamble to the proposed NCP
discussion of § 300.160(d) detailed the
kinds of studies that are eligible for cost
recovery. Including guidance documents
in the NCP, or including information
normally reserved for these guidance
documents, would produce an unwieldy
NCP, and require constant revision as
Agency guidance and policy procedures
change over time. In addition,  EPA is
developing a regulation that will provide
for recovery of direct and indirect costs
under CERCLA. That rulemaking will
address the comments summarized
above.
  Oil discharges are not included under
the provisions of § 300.160(a),  but are
referred, through § 300.160(b),  to
§ 300.315, the documentation and cost
recovery section of subpart D. The cost
recovery and documentation processes
for oil discharges are, by intent,
somewhat different from those for
hazardous substance release responses.
Including oil discharges under the
provisions of § 300.160(a) would subject
them to conflicting cost recovery and
documentation provisions. In  addition,
oil spills are statutorily exempt from the
provisions of CERCLA, and come under
the authority of the CWA.
  One commenter stated that granting
power to authorize expenditure of
federal funds to the agency responsible
for the response action represented
preferential treatment for federal
agencies who are PRPs that is not
extended to private parties.
  In response, the purpose of  § 300.160
is to describe authority for expenditures
in cases where federal agencies assist in
a non-federal response, such as a
coastal oil spill where no federal lands
are affected. Their activities may be a
mix of activities which they are required
to undertake under their own
authorities, and activities which they
undertake as requested in support of an
OSC (or RPM).  The latter activities may
be reimbursed from the Fund, later to be
reclaimed from the potentially
responsible party (PRP) by the Fund-
managing agency. The commenter
 appears to misinterpret this section as
 applicable to situations when the
federal agency is itself a PRP. It is not. If
 a federal agency were participating in a
 response for which it was the
 responsible party, no reimbursement
 from the Fund would be allowed. These
 provisions are amply covered in the
appropriate Fund-management
regulations. Thus, since there is no
preferential treatment allowed or
inferred for federal agencies over non-
federal PRPs, no change is necessary.
  Final rule: Proposed § 300.160 is
revised as follows:
  1. In § 300.160(a)(2), the cross-
reference to § 300.165 in the last
sentence is modified.
  2. Proposed § 300.160(a)(3) is revised
as follows (see preamble discussion on
§ 300.615 (notification)): "The lead
agency shall make available to the
trustees of affected natural resources
infonnation and documentation that  can
assist the trustees in the determination
of actual or potential natural resource
injuries."
  Name: Section 300.165. OSC reports.
  Existing rule: Section 300.40(a) of the
existing NCP requires the OSC to submit
to the RRT a  complete report on a
response action within 60 days after  the
conclusion of a response to a major
discharge of oil, or a major hazardous
substance, pollutant or contaminant
release, or when requested by the RRT.
  Proposed rule: Proposed § 300.165(a)
requires the submission of the OSC
report within 90 days (rather than 60
days) of the conclusion of the response
action or when requested by the RRT.
Additionally, the RRT must review the
OSC report and forward a copy of the
report with the RRT's comments to the
NRT within 30 days of receiving the
OSC report.
  Response to comments: Paragraph (a):
A commenter recommended that OSC
reports be approved by EPA prior to
distribution to the RRT. EPA notes in
response that the NCP deals with the
distribution of OSC reports for the
purposes of the NRT/RRT/OSC national
response system. The OSC reports may
be used for individual agencies' own
management information purposes as
well, but a primary purpose of these
reports is to allow prompt knowledge of
lessons learned, frank discussion of  any
problems, and timely and effective
consideration of improvements or
cautions which need to be shared
throughout the system. Pre-screening by
EPA (or other agency providing the OSC
in question) would impede the
timeliness of such reports, and perhaps
diminish the immediacy of concerns
which are intended to be conveyed to
 other responders. Thus, no change has
been made in response to this comment.
   Another commenter recommended
 that the OSC distribute the OSC report
 to the state representative to  the RRT.
This change  is unnecessary. The state
representative to the RRT has access to

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Federal Register / Vol. 55, No. 46  /  Thursday,  March 8, 1990 / Rules and  Regulations
such reports through the mechanism set
up by each RRT to make OSC reports
available to each member of the RRT.
Therefore, the OSC would be
duplicating the mechanism already
created. In addition, there is no apparent
reason why the state representatives
should receive a  copy of the OSC report
directly from the OSC while the other
members of the RRT receive a copy from
the RRT.
  One commenter stated that the OSC
report deadline is unworkable because
the vast differences between response
actions and the degrees of complexity
that they may entail dictate that varying
amounts of time may be needed to
complete an OSC report. Cost recovery
actions, noted the commenter, may also
dictate a specific deadline for report
submission. The  commenter also stated
that the original intent of this
requirement should be reexamined by
the NRT and the  RRT. To address these
problems, the commenter recommended
that after-action reports be required
instead of OSC reports, and that no
deadline for these reports be imposed on
the OSCs. For those  actions which are of
significant size or nature, or at the
request of the RRT or NRT, the
commenter recommended that the OSC/
RPM submit an executive summary
which addresses the four existing
requirements of the NCP. The
commenter suggested that the deadline
for this summary should be determined
by the NRT or the RRT requesting it.
  Recognizing that OSCs have extensive
responsibilities and that response to
discharges or releases is a higher
priority than writing the OSC report,
EPA proposed to extend the deadline for
submission of the report from 60 days to
90 days after completion of the
response. After considering the
comments on this proposal, EPA agrees
with the commenter that even this
deadline for submission of the OSC
report may be unworkable. Therefore,
the final NCP now requires submission
of the report within one year of the
completion of removal actions or when
requested by the  RRT. EPA believes that
the change provides needed flexibility
while ensuring that RRTs are able to get
reports sooner, if necessary. Although
the deadline has  been extended, EPA
still expects that OSC reports will be
written as soon as practicable.
Generally, for removals of short
duration (e.g., lasting less than 30 days),
OSC reports should be available within
six months of completion of the removal
action because there is less to report.
  EPA does not agree, however, that
cost recovery actions need dictate the
deadline for submission or the contents
                           of the report. The purpose of the OSC
                           report is to summarize the activities at
                           the site and the lessons learned. It
                           should be similar to the executive
                           summary described by the commenter
                           except that it should cover, briefly, all of
                           the topics listed in § 300.165(b). Detailed
                           information regarding day-to-day events
                           may be found in the administrative
                           record, the pollution reports, the site log
                           book, and the OSC log book. At the
                           completion of site activities, these
                           information sources are maintained in
                           the site file at the regional office. In the
                           event a detailed review of site activities
                           is necessary (e.g., for cost recovery
                           purposes), the information can be
                           obtained through the regional office. The
                           OSC report should not attempt to
                           include or duplicate all of this other
                           information but rather should reference
                           and summarize it.
                             One commenter stated that EPA
                           should broaden this section to apply to
                           situations other than "major" discharges
                           or releases. In response, EPA does not
                           agree that OSC reports should be
                           required for every action that responds
                           to a discharge or release. EPA notes,
                           however, that § 300.165 provides that
                           reports on response actions other than
                           to major discharges or releases will be
                           submitted when requested by the RRT.
                             One commenter noted that it is
                           unclear why § 300.165 involves RPMs if
                           it is limited to removal actions. In
                           response, RPMs are referenced in
                           § 300.165 because removal actions
                           sometimes occur at NPL sites (e.g., a fire
                           may have started at a site where a
                           remedial action is planned or is being
                           conducted); therefore, the RPM may
                           actually submit the OSC report.
                            Paragraph (c): A comment relating to
                           § 300.165(c)(l)(viii) noted that in the
                           case of a large spill the damage
                           assessment process will continue
                           beyond the proposed 90-day time limit
                           for submission of the OSC report.
                           Therefore, the commenter states that
                           § 300.165(c)(l)(viii) should include a
                           "qualifying statement" concerning
                           natural resource damage assessment
                           activity. In response, EPA notes that the
                           deadline for submitting OSC reports is
                           now one year. Moreover, the OSC report
                           need only observe that damage
                           assessment activity is ongoing despite
                           the conclusion of the response action. A
                           qualifying statement, therefore, is not
                           necessary.
                             One commenter argued that the OSCs
                           should not comment on natural resource
                           injuries or trustee activities. The
                           commenter believed that OSCs lack
                           expertise in natural resource fields  and
                           could inadvertently make statements
                           that might affect trustee efforts to
recover damages through litigation. The
commenter wanted paragraphs (vii) and
(viii) deleted from the OSC report format
in § 300.165(c)(l). Another commenter
stated that the phrase "documentation
shall be sufficient to
provide * * * impacts and potential
impacts to the public health and welfare
and the environment" seems to imply
that damage assessment is an OSC
responsibility. The commenter argued
that responsibility for this complicated
process should rest with the federal
trustees, not with the OSC. The
commenter noted that this point should
be clarified in the  NCP.
  In response to the commenters that
expressed concern that OSCs would be
commenting on natural resource injuries
or conducting damage assessments of
natural resources, EPA believes that the
commenter misinterpreted the intent of
this requirement. OSCs are simply
documenting the notification to trustees
of natural resource damage or potential
damage and then listing any activities
taken by the trustees at the site. EPA
believes that it is an important
component of the report and does not
believe the requirement should be
eliminated. However, EPA does find that
the wording in § 300.165 (c)(l) (vii) and
(viii) may be misleading and has
changed it in today's rule to more
accurately reflect the stated intent.
  A comment relating to
§ 300.165(c)(4)(iii)  questioned if the OSC
is required to comment on plans
developed by LEPCs and SERCs under
section 303 of SARA, and recommended
that § 300.165(c)(4)(iii) be amended to
make it clear that OSCs should only
recommend changes if those plans are in
conflict with the OSC plans. In response,
EPA believes that § 300.165(c)(4)(iii)
does not require review of all section
303 plans. The subsection requires the
OSC to make recommendations relating
to the section 303 plans "as
appropriate." Such recommendations
are only appropriate if the section 303
plans are inconsistent with the NCP,
RCP or OSC plan since the OSC is not
authorized by any statute or regulation
to review section 303 plans.
Accordingly, the recommended change
seems unnecessary.
  Final rule: Proposed § 300.165 is
revised as follows:
  1. The first sentence of § 300.165(a)
has been changed from "Within 90 days
after completion of removal
activities * * *," to read: "Within one
year after completion of removal
activities * * *."
  2. Section 300.165(c)(l)(vii) has been
changed to read: "Content and time of
notice to natural resource trustees

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relating injury or possible injury to
natural resources."
  3. Section 300.165(c)(l)(viii) has been
changed to read: "Federal or state
trustee damage assessment activities
and efforts to replace or restore
damaged natural resources."
  Name: Section 300.170. Federal agency
participation.
  Proposed rule: Proposed § 300.170
described general responsibilities of
federal agencies within the National
Response  System.
  Response to comments: Under
§ 300.170,  a commenter requested
clarification of the responsibilities of
federal agencies with respect to
reporting of releases of hazardous
substances, as compared to pollutants,
or contaminants or discharges of oil,
from facilities or vessels which are
under their jurisdiction or control. EPA
has revised this section to  clarify the
applicable reporting requirements.
  Final rule: Proposed § 300.170(c) is
revised as follows:
  1. Section 300.170(c) has been
modified as follows: "All federal
agencies are responsible for reporting
releases of hazardous substances from
facilities or vessels under their
jurisdiction or control in accordance
with section 103 of CERCLA."
  2. Section 300.170(d) has been added
as follows: "(d) All federal agencies are
encouraged to report releases of
pollutants or contaminants or discharges
of oil from vessels under their
jurisdiction or control to the NRG."
  Name: Section 300.175 Federal
agencies:  additional responsibilities and
assistance.
  Existing rule: 40 CFR 300.23. This
section described federal agencies'
capabilities and expertise  related to
preparedness planning and response,
consistent with agency capabilities and
legal authorities.
  Proposed rule: The proposed revisions
emphasized the leadership roles of EPA
and the USCG, added the Nuclear
Regulatory Commission to the list of
federal agencies described, and revised
and updated some of the other agencies'
capabilities and expertise.
  Response to comments: Paragraph (b):
A commenter suggested adding language
to § 300.175(b) regarding the staffing and
administration of the National Response
Center (NRG) by the USCG. It was also
suggested to add to each of the other
agency's organizational roles, language
concerning communication procedures
and specialized services and funding for
NRG operations.
   In response, EPA has added a
description of the capabilities and
expertise of the NRG to § 300.175(b)(15).
EPA does not agree, however, that it is
necessary to add language regarding
organizational roles, communication
procedures, etc., to the descriptions of
the other federal agencies. Section
300.175 provides a brief generalized
description of individual agency's
expertise in preparedness planning or
response actions,  consistent with their
legal authorities and capabilities. It is
not meant to cover specific details of
completing these activities. Further,
§ 300.125 has,been revised to read: "The
Commandant, USCG, in conjunction
with other NRT agencies, shall provide
the necessary personnel,
communications, plotting facilities, and
equipment for the NRG." In addition, if
specialized services are needed by a
particular agency, this, along with any
appropriate funding, should be handled
by a memorandum of understanding.
  A  commenter recommended adding to
§ 300.175(b)(l), a reference to the Coast
Guard's authority to enter into
cooperative agreements pursuant to
section 311(c)(2)(H) of the CWA or
section 104(d) of CERCLA. EPA has
added such language.
  One commenter questioned whether
entering into a contract or cooperative
agreement with the appropriate state in
order to implement a response action
applies only to remedial actions. If not,
the following statement is
recommended: "Coast Guard OSCs
should be included in negotiating
agreements for emergency responses."
  In response, provisions of subpart B
(and thus "negotiating agreements or
contracts for response actions")
generally apply to both removal and
remedial actions;  therefore, no change is
necessary. As a practical matter, in the
timeframe of an emergency response, or
urgent need for a removal action,
negotiating such an agreement for the
particular event or place might take
more time than the immediate situation
allowed. Generic  standing agreements
for certain kinds of situations could be
negotiated in advance. In general,
however, proper contingency planning
can meet mutually satisfactory
emergency needs if state, local, and
OSC plans show the same agreed-upon
dispositions of resources and
responsibilities and provide for
appropriate levels of decision-making
covering various kinds of incidents.
   Under § 300.175(b)(3), it was
recommended to add language to clarify
EPA responsibilities to address the
immediate short-term evacuations that
are often the norm in hazardous
chemical responses. EPA does not agree.
This appears to be a specific
responsibility which would be best
handled in a Federal Emergency
Management Agency (FEMA) policy or
guidance document.
  Under § 300.175 (b)(4) and (b)(5), one
commenter requested clarification of the
specific responsibilities of Department
of Defense and Department of Energy
OSCs concerning releases of hazardous
substances, pollutants, and
contaminants, and discharges of oil.  The
responsibilities of OSCs from all federal
agencies are the  same, as described in
§ 300.120 and elsewhere in the NCP.
  One commenter suggested that
language be added to § 300.175(b)(4) to
clarify that consistent with CERCLA
section 120(e)(4)(A), the EPA
administrator has the ultimate authority
with respect to selecting remedial
actions for DOD facilities on the NPL.
While the suggested addition is correct,
EPA does not believe this section is the
appropriate place for it. This item will
be adequately covered in subpart K.
  Another commenter suggested that
EPA add language to § 300.175(b)(4)  to
identify the availability of Army
Explosive Ordinance Demolition (EOD)
units (for explosives, nerve agents, etc.].
EPA believes that access  to this
expertise is limited by DOD authorities
and should not be included.
  Under § 300.175(b)(7), a commenter
suggested a change to add a reference to
the capabilities of the Department of
Commerce (DOC) with respect to
National Marine Sanctuary ecosystems.
EPA has made the suggested change.
  Under § 300.175(b)(9)(i), a commenter
suggested a change to clarify the
responsibilities of the Fish and Wildlife
Service. EPA agrees with the suggested
change.
  Under § 300.175(b)(10),  a commenter
recommended expanding the section to
describe the Department of Justice's
(DOJ) role in litigation and the
information that DOJ needs to negotiate
or pursue a court action. EPA does not
agree with the proposed change because
the NCP is not the  appropriate document
for this purpose.
  Final rule: Proposed § 300.175 is
revised as follows:
  1. The following sentence has been
added to § 300.175(b)(l): "The USCG
may enter into a contract or cooperative
agreement with the appropriate state in
order to implement a response action."
  2. Section 300.175(b)(7)  has been
changed to add a reference to the
National Marine Sanctuary ecosystems.
  3. Section 300.175(b)(9)(i) has been
changed to read as follows: "Fish and
Wildlife Service: Anadromous and
certain other fishes and wildlife,
including endangered and threatened
species, migratory birds, and certain
marine mammals; waters and wetlands;

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Federal Register / Vol. 55, No. 46 / Thursday, March 8,  1990 / Rules and Regulations
contaminants affecting habitat
resources; and laboratory research
facilities."
  4. Section 300.175{b)(15) has been
added describing the capabilities and
expertise of the National Response
Center.
  Name: Section 300.180. State and local
participation in response.
  Proposed rule: This section described
general responsibilities of state and
local governments for response
activities.
  Response to comments: Paragraphs
(a)and(c): Under § 300.180(a), a
commenter suggested allowing each
RRT to determine an appropriate
number of seats to assign to each state
within its jurisdiction. EPA disagrees
with the suggested change. While it is
recognized that states may assign tasks
to a number of different state agencies,
it is imperative to have one
spokesperson for the state as the official
representative on the RRT. As many
state representatives as desired may
attend the RRT meetings. Under
i 300.180(a), a commenter recommended
adding "OSC" in addition to  RPM for
state-lead response actions. EPA agrees
with the recommended change.
  Another comment asked two
questions: Under § 300.180{c), what is
meant by facilities not subject to
response actions under the NCP, and is
this section consistent with § 300.3(a)(2).
In response, EPA agrees that the two
cited sections should be consistent, and
is revising the language in § 300.180(c) to
read: "For facilities not addressed under
CERCLA *  * *."
  Paragraph (d): One commenter
indicated that the NCP should enable
federal facilities to issue cooperative
agreements to states to carry out
remedial investigation, feasibility study,
remedial action and remedial design
activities. It was suggested that
§ 300.180(d) be modified to provide for
Oils. EPA recognizes that federal
agencies may cooperate with states in
completing federal facility response
activities. This will be adequately
covered in subpart K and does not need
to be included in this section.
  Paragraph (e): Under § 300.180(e), a
commenter recommended that state and
local public safety organization
response efforts should be consistent
with containment and cleanup
requirements in the NCP. EPA agrees
and has made the recommended change.
  Final rule: Proposed § 300.180 is
revised as follows:
  1. The first sentence of § 300.180(c) is
revised to read: "For facilities not
addressed under CERCLA  *  * *"
                             2. Section 300.180(e) has been changed
                           as follows: "Because state and local
                           public safety organizations would
                           normally be the first government
                           representatives at the scene of a
                           discharge or release, they are expected
                           to initiate public safety measures that
                           are necessary to protect public health
                           and welfare and that are consistent with
                           containment and cleanup requirements
                           in the NCP, and are responsible for
                           directing evacuations pursuant to
                           existing state or local procedures."

                             Name: Section 300.185.
                           Nongovernmental participation.
                             Proposed rule: Proposed § 300.185,
                           based on existing § 300.25, encouraged
                           involvement by industry groups,
                           academic organizations and others in
                           response operations. This section also
                           specified that contingency plans should
                           provide for the direction of volunteers
                           by the OSC or other federal, state or
                           local officials.
                             Response to comments: A commenter
                           suggested changing § 300.185 so that the
                           OSC/RPM does not have the discretion
                           to involve volunteers in on-site activities
                           associated with hazardous substance
                           response operations. EPA disagrees with
                           this suggestion. This section provides
                           adequate safeguards for the use of
                           volunteer personnel, including
                           restrictions from on-scene operations as
                           necessary.
                             A change was suggested to make this
                           section consistent with the authority of
                           the scientific support coordinator (SSC)
                           as stated in § 300.145(d)(2). EPA agrees
                           • and has made the change.
                             A commenter requested that the NCP
                           further define strategies for dealing with
                           cases involving multiple authorities.
                           EPA disagrees with the recommended
                           change. The situations involving
                           multiple jurisdictions and authorities
                           should be handled under the appropriate
                           contingency plan, i.e., the RCP or OSC
                           plan.
                             Final rule: The last sentence of
                           proposed § 300.185(b) has been changed
                           to read as follows: "The SSC may act as
                           liaison between the OSC/RPM and such
                           interested organizations."

                           Subpart C—Planning and Preparedness
                             Historically, the NCP has provided for
                           federal planning and coordination
                           entities and for federal contingency
                           plans. Although there has previously
                           been no federal requirement for state
                           and local planning, the NCP has always
                           provided for coordination with such
                           entities and plans where they exist.
                           However, SARA Title III now requires
                           the development of a state and local
                           planning structure and local emergency
                           response plans.
  Title III provides the mechanism for
citizen and local government access to
information concerning potential
chemical hazards present in their
communities. This information includes
requirements for the submission of
emergency planning information,
material safety data sheets and
emergency and hazardous chemical
inventory forms to state and local
governments, and for the submission of
toxic chemical release forms to the EPA.
Title III also contains general provisions
concerning local emergency response
plans to be developed by local
emergency planning committees
(LEPCs), emergency training, review of
emergency systems, trade secret
protection, providing public access to
information, enforcement, and citizen
suits. Regulations implementing Title III
are codified at 40 CFR subchapter J. EPA
will reference Title III and these
regulations in subpart C where
appropriate.
  The proposed NCP states that in
developing OSC contingency plans, the
OSCs shall coordinate with State
Emergency Response Commissions
(SERCs) and Local Emergency Planning
Committees (LEPCs) affected by the
OSC area of responsibility. The OSC
plans shall provide for a well
coordinated response that is integrated
and compatible with all appropriate
response plans of state, local and other
non-federal entities, and especially with
Title III local emergency response plans.
  The following sections discuss
comments received on the proposed
subpart C and EPA's responses.
  Name: Section 300.200. General.
  Existing rule: Subpart D—Plans
(§ 300.41). Subpart D of the 1985 NCP
required that, in addition to the National
Contingency Plan (NCP), a federal
regional plan be developed for each
standard federal region, Alaska, and  the
Caribbean, and, where practicable, a
federal local (i.e., OSC) plan also be
developed. The purpose of these plans is
coordination of a timely, effective
response by various federal agencies
and other organizations to discharges of
oil and releases of hazardous
substances, pollutants and .contaminants
in order to protect public health,
welfare, and the environment.
  Proposed rule: The equivalent section
to subpart D in the 1985 NCP, is found in
subpart C of today's rule. This subpart
summarizes emergency preparedness
activities relating to oil, hazardous
substances, pollutants and
contaminants; describes the federal,
state, and local planning structure;
provides for three levels  of federal

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                                                                          21
contingency plans; and cross-references
state and local emergency preparedness
activities under SARA Title III.
  Response to comments: A commenter
stated that the planning activities
referred to in subpart C apply to both oil
and hazardous substances response
activities, not to "hazardous chemicals
and substances only" as provided in the
proposed rule. EPA agrees with this
commenter. As stated in the 1985 NCP,
all federal, state, and local contingency
plans must deal with emergency
preparedness and response activities
related to discharges of oil and releases
of hazardous substances, pollutants, or
contaminants.
  Final rule: Section 300.200 is revised
to read, "This subpart summarizes
emergency preparedness activities
relating to discharges of oil and releases
of hazardous substances, pollutants, or
contaminants * * *".
  Name: Section 300.205. Planning and
coordination structure.
  Proposed rule: The SERC in each state
is to establish local planning districts,
appoint LEPCs, and  supervise/
coordinate their activities. The SERC
must also establish information
management procedures and appoint an
individual to serve as the coordinator
for the information.
  Response to comments: A few
commenters suggested that § 300.205(c)
make reference to §  300.115(h) to ensure
coordination of the RRT with the SERC.
Section 300.205(b) references § 300.115
as the description of the RRT's
responsibilities. Section 300.115(h) states
that the state's RRT representative
should coordinate with the SERC. Since
it has already been stipulated that the
RRT as part of their responsibility
coordinate with the  SERC, there is no
need to reiterate that statement in
§ 300.205(c).
  Final rule: EPA is  promulgating the
rule as proposed.
  Name: Section 300.210. Federal
contingency plans.
  Proposed rule: This section describes
the three levels of federal contingency
plans and makes reference to Title III
plans. See also general description in
introduction above.
  Response to comments: 1. SARA Title
III. Several commenters suggested that
all references to SARA Title III should
be eliminated from the NCP in that
SARA Title III establishes new,
completely separate requirements to
report to state and local emergency
planning officials, which are totally
unrelated to the CERCLA process.
Another commenter,.however,
supported the complete incorporation
and integration of Title III provisions
with other notification, spill prevention
and preparedness sections in the NCP.
One commenter recommended that EPA
make a clear distinction between the
NCP preparedness activities and Title III
requirements.
  A major objective of both the NCP
and SARA Title III is to increase public
protection by developing response plans
to deal with releases of oil and
hazardous substances to the
environment Eliminating from the NCP
all references to SARA Title III could
lead to duplication of effort by federal,
state and local governments regarding
contingency planning. It could also
cause confusion because the NCP would
not provide a complete picture of the
federal/state/local planning structure.
  2. Clarification of coordination
procedures. Some comments stated that
the NCP should be revised to include
procedures for coordinating emergency
response planning amongst LEPCs,
OSCs, RRTs and the NRT. EPA has
considered this comment and is not
including such language in the final rule.
The NCP is not intended to be a detailed
procedural guidance document and such
coordination should be left to the
discretion of the coordinating parties to
provide greatest flexibility to address
regional, state and local variations.
Other guidance on planning and plan
coordination is available, e.g.
"Hazardous Materials Emergency
Planning Guide," National Response
Team, NRT-1 (March 1987), "Criteria for
Review of Hazardous Materials
Emergency Plans," National Response
Team, NRT-1 (May 1988) and
"Technical Guidance for Hazards
Analysis," EPA, DOT and FEMA
(December 1987), through the National
Response Team (NRT) member
agencies.
  3. Natural resources trustees and
DOD and DOE OSCs. A few
commenters suggested that § 300.210 be
expanded to require that natural
resources trustees and DOD and DOE
OSCs be identified. Section 300.210
states that "RCPs [Regional Contingency
Plans] shall follow the format of the
NCP and coordinate with state
emergency response plans, OSC
contingency plans, * * *". The NCP and
OSC contingency plans stipulate that
the trustees of natural resources, as well
as DOD and DOE OSCs, should be
identified. Therefore there is no need to
further state that in § 300.210.
  4. OSC jurisdictional boundaries.
Another commenter stated that
determining the OSC jurisdictional
boundaries based on Title III district
boundaries is not appropriate. EPA
agrees. The language in the proposed
NCP reads that "jurisdictional
boundaries of local emergency planning
districts  *  *  * shall, as appropriate be
considered in determining OSC areas of
responsibilities." Thus, the proposed
NCP does not require the OSC
jurisdictions to be based on Title III
local planning district boundaries, and
there will be no change in the final rule.
  5. Coordination of RRT, OSC and
LEPCplans. A few commenters feel that
it would be burdensome for RRTs or
OSCs to coordinate  their plans with the
Title III local emergency response plans.
They feel the  drafters of Title III local
emergency response plans should
ensure that their plans coordinate with
the OSC and RRT plans.
  Other commenters recommended that
the RRT be encouraged to advertise the
availability of copies of the RCP to local
emergency planning committees. One
commenter suggested that the state
should ensure the coordination of local
plans with the OSC plan. Another stated
that the NCP should be revised to
indicate that drafters of Title III local
plans should coordinate their plans with
federal plans, not the other way around.
Finally, another commenter noted that,_
for consistency, procedures for a LEPC
to submit a plan to the RRT for revfew
should be included in § 300.215(d), and
that these procedures should require
submission through the SERC.  —
  EPA considers the coordinatiorT-of the
OSC plans with the Title III plans to be
important. OSCs must be
knowledgeable of local response groups
and their response capabilities in order
to prepare reliable and useful plans and
to respond to incidents in their districts.
The jurisdiction of some OSCs may
include several Title III local planning
districts,  and the OSCs must  ensure that
their plans do not conflict with, but
complement the Title III plans. A few
people commented that language sho'uld
be added proposing  that the Title III
local planning committees coordinate
their plans with those of the OSCs.
Section 300.215(a) already includes such
language.
  EPA also believes that the
coordination through the SERC of
regional plans with the'Title III plans, to
the greatest extent possible, is
fundamental to the planning process.
  Final rule: Proposed § 300.210(b) is
changed to add the following sentence
before the last sentence: "Such
coordination should be accomplished by
working with the SERCs in the region
covered by the RCP."
  Name: Section 300.215. Title III local
emergency response plans.
  Proposed rule: See general description
in introduction above.

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22
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules  and Regulations
  Response to comments: A commenter
stated that § 300.215 should be revised
to include comments regarding non-
catastrophic event response. EPA
disagrees with this commenter since
Title III addresses all releases,
catastrophic as well as non-
catastrophic. Section 304 of Title III
requires the reporting of releases in
excess of a reportable quantity of an
extremely hazardous substance or a
CERCLA hazardous substance to the
SERC, LEPC, and the NRG (where
appropriate). These federal, state, and
local officials will then respond to that
report as appropriate.
  Another commenter suggested that
§ 300.215 should be expanded to include
procedures for a LEPC to submit a plan
to the RRT for review. EPA has
considered this comment and is making
a revision in the final rule.
  Final rule: Proposed § 300.215 is
revised as follows:
  1. Section 300.215(d) is revised to add
the following last sentence: "This
request should be made by the LEPC,
through the SERC and the state
representative on the RRT."
  2. In the first sentence of
§ 300.215(e)(2), the phrase "to  the SERC,
LEPC and the local fire department" has
been added.
  Name: Indian tribes under Title in.
  Proposed rule: The preamble to
proposed subpart A stated that EPA is
proposing to include Indian tribes in the
definition of "state,"  except for purposes
of Title III, or where specifically noted
in the NCP.
  Response to comments: Several
commcnters disagreed with excluding
Indian tribes from being treated like
states under Title III. These commenters
encouraged EPA to allow tribal
participation in this program because if
the tribes do not become involved as
governments in emergency response
planning, the potential for harm to the
reservation population and environment
increases. These commenters also
mentioned that EPA should allow tribes
to participate as governments in Title III
programs because tribes can be an
important link in emergency planning
and could be important in planning the
appropriate response actions. These
commenters recommended that EPA use
its discretion to allow tribal
participation under Title III on a
government-to-government basis. Indian
tribes wishing to develop local planning
structure and local emergency response
plans should be allowed to participate
in Title III planning on the same basis as
states.
  In response, EPA notes that on March
29,1989 (54 FR12992), EPA proposed
                           that Indian tribes be the designated
                           implementing authority for Title III on
                           all lands within "Indian country" as
                           defined in 15 U.S.C. 1151. When this
                           proposed rule becomes final, Indian
                           tribes will, by rule, be included in the
                           definition of "state" for the purposes of
                           Title III.
                             Final rule: There is no rule language
                           on this issue.

                           Subpart D—Operational Response
                           Phases for Oil Removal
                              Subpart D contains only minor
                           revisions to the existing subpart E. The
                           following sections discuss comments
                           received on the proposed subpart D and
                           EPA's responses.
                             Name: Section 300.300. Phase I—
                           Discovery or notification.
                             Proposed rule: This section describes
                           the ways in which an oil discharge may
                           be discovered and requires that reports
                           of all discharges be made to the NRG.
                           Alternative notification to the
                           appropriate USCG or EPA
                           predesignated OSC or the nearest USCG
                           unit is permitted if immediate
                           notification to the NRG is not
                           practicable. This section also requires
                           that immediate notification to the NRG
                           be included in regional and local
                           contingency plans. Upon notification of
                           an oil discharge, the NRG must promptly
                           notify the OSC who, in turn, will
                           proceed with the additional response
                           phases  outlined in this subpart.
                              Response to comments: One
                           commenter asserted that the addition of
                           the EPA predesignated OSC as a contact
                           through the regional 24-hour emergency
                           response telephone number is
                           unnecessary and should be deleted.  The
                           commenter went on to say that a single,
                           all encompassing notification system
                           must be established in the NCP so the
                           federal government can be efficient and
                           effective in its response actions. The
                           concept of a single point of contact for
                           reporting all environmental incidents
                           throughout the United States is well
                           established under the FWPCA and
                           CERCLA. According to this commenter,
                           with one telephonic notification to the
                           NRG, many responsible parties fulfill
                           several federal regulatory reporting
                           requirements. If a responsible party  can
                           telephonically call EPA's 24-hour
                           emergency number, then why can they
                           not simply call the NRG. The
                           requirement to call EPA's 24-hour
                           number simply confuses and
                            complicates the reporting requirements.
                              While EPA agrees that there should
                           be a single notification system for
                            discharges of oil, EPA believes that it is
                            important to make available reasonable
                            alternatives for reporting oil spills that
are limited to the rare circumstances
where it is not possible to contact the
NRG. Furthermore, it is the opinion of
EPA that the condition, "if direct
reporting to the NRG is not practicable,"
is not ambiguous. It should be
emphasized that reporting to the USCG
or EPA predesignated OSCs or the 24-
hour EPA regional emergency response
telephone number are interim measures,
and all reports shall be promptly relayed
to the NRG by the discharger.
  One commenter recommended that
the "notification" language used in
subpart D for Oil Removal (§ 300.300
and in subpart E for Hazardous
Substance Response (§ 300.405)) should
be identical asserting that this will limit
confusion and make reporting of
incidents that are both oil and
hazardous substance simple. The
commenter added that there is no need
for the oil industry to determine, before
notification, whether a spill will be
interpreted to fall within the petroleum
exclusion and recommended new
language for §§ 300.300 and 300.405.
Another commenter recommended
rewriting the  Discovery or notification
section to accurately reflect the
notification requirements for different
types of discharges as mandated by
statute adding that the procedures that
the NRG and OSC must follow should be
separate from the requirements of the
discharger so as not to confuse the
reader.
  EPA believes that the notification
provisions of subparts D and E, as
proposed, are consistent except for
necessary differences  driven by
statutory and programmatic
requirements. EPA also believes that the
concept of a single point of contact for
reporting all oil and hazardous
substance spills is preserved. Therefore,
in today's final regulation, § 300.300
remains largely unchanged from the
proposed rule.
  Final rule: The last two sentences in
§ 300.300(b) are revised as follows (see
discussion in preamble section on
§ 300.125 on editorial revision to
§ 300.300(b)):
  "If it is not possible to notify the NRG
or predesignated OSC immediately,
reports may be  made to the nearest
Coast Guard unit. In any event, such
person in charge of the vessel or facility
shall notify the  NRG as soon as
possible."
  Name: Section 300.305. Phase II—
Preliminary assessment and initiation of
action.
  Final rule: Proposed § 300.305(d) is
revised as follows (see preamble section
on § 300.615 (notification)):

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            Federal Register / Vol.  55, No. 46 / Thursday, March 8, 1990  / Rules  and Regulations
                                                                          23
  "If natural resources are or may be
injured by the discharge, the OSC shall
ensure that state and federal trustees of
affected natural resources are promptly
notified in order that the trustees may
initiate appropriate actions, including
those identified in subpart G. The OSC
shall seek to coordinate assessments,
evaluations, investigations, and
planning with state and federal
trustees."
  Name: Section 300.310. Phase Ill-
Containment, countermeasures, cleanup
and disposal.
  Proposed rule: This section requires
that the OSC initiate defensive actions
as soon as possible to prevent,
minimize, or mitigate the threat to the
public health  or welfare or the
environment.  These actions may include
controlling the source of the discharge;
initiating salvage operations;
deployment of physical barriers to deter
the spread of the oil; and the use of
chemical or biological countermeasures
in accordance with subpart J, to restrain
the spread of the oil and mitigate its
effects. This section directs the OSC to
choose oil spill recovery and mitigation
methods that  are most consistent with
protecting the public health and welfare
and the environment. Sinking agents are
specifically prohibited. This section
requires that recovered oil and
contaminated materials be disposed of
in accordance with federal regional and
local contingency plans.
  Response to comments: A commenter
noted that § 300.310[c) states that "oil
and contaminated materials recovered
in cleanup operations shall be disposed
of in accordance with the RCP and OSC
contingency plan and any applicable
laws, regulations, or requirements." If
the purpose of this paragraph is to
require that the disposal of cleanup
materials meet applicable or relevant
and appropriate requirements (ARARs),
the commenter recommended that
ARARs should be substituted for
"applicable laws, regulations, or
requirements". Language similar to
§ 300.400(g) should then be added to aid
in the identification of ARARs for oil
removal.
  The purpose of this paragraph is not
to require that the disposal of oil-
contaminated cleanup materials meet
ARARs. Language that could be
interpreted to the contrary inadvertently
appeared in the preamble to the
proposed regulation. ARARs, as
required by CERCLA section 121, apply
to remedial actions responding to
releases of hazardous substances, the
definition of which excludes "oil."
CERCLA sections 101(14) and 101(33).
The response to oil discharges is
provided by section 311 of the Clean
Water Act.
  Final rule: EPA is promulgating
§ 300.310 as proposed.
  Name: Section 300.315. Phase IV—
Documentation and cost recovery.
  Proposed rule: This section requires
the collection and maintenance of
documentation to support actions taken
under the CWA and to form the basis
for cost recovery.
  Final rule: Proposed. § 300.315 is
revised as follows:
  1. The cross-references to the USCG
Marine Safety Manual and 33 CFR part
153 in the last sentence of § 300.315(a)
are modified.
  2. The following sentence is added to
proposed § 300.315(c) (see preamble
discussion on § 300.615): "The OSC shall
make available to trustees of the
affected natural resources information
and documentation that can assist the
trustees in the determination of actual or
potential damages to natural resources."
  Name: Section 300.320. General
pattern of response.
  Proposed rule: This section describes,
in general, the actions to be taken when
a report of a discharge is received.
  Final rule: The phrase "rehabilitating
or acquiring the equivalent of *  *  *"
has been added to  § 300.320(b)(3)(iii) in
order to be consistent with CWA
section 311(f)(5).
  Name: Section 300.330. Wildlife
conservation.
  Proposed rule: This section describes
coordination of professional and
volunteer groups to participate in
waterfowl dispersal, collection,
cleaning, rehabilitation and recovery
activities.
  Response to comments: A commenter
suggested that the more encompassing
term "wildlife" be used in this section
rather than "waterfowl." EPA agrees
and has made the change.
  Final rule: EPA has revised proposed
§ 300.330 to use the term "wildlife"
rather than "waterfowl."

Subpart E—Hazardous Substance
Response
  The Hazardous Substance Response
subpart contains a detailed plan
covering the entire range of authorized
activities involved in abating and
remedying releases or threats of
releases of hazardous substances,
pollutants, or contaminants. EPA is
making major revisions to the hazardous
substance response authorities included
in the NCP. The revisions implement the
1986 amendments to CERCLA and
incorporate additional requirements
deemed necessary and appropriate
based on EPA's management of the
Superfund program. The NCP
reorganizes the sections of the subpart
to coincide with the general order of
established procedures during response.
  Specifically, EPA is expanding current
§ 300.62 on the state role into a separate
subpart (new subpart F), which
incorporates the new state involvement
regulations; the entire discussion now
appears after subpart E. EPA is also
revising and reformatting current
§ 300.67 on community relations so that
it is no longer a separate section but is
incorporated into the other sections as
appropriate. Furthermore, EPA is
renaming and reorganizing the sections
in subpart E as follows:
§ 300.400  General
§ 300.405  Discovery or notification
§ 300.410  Removal site evaluation
§ 300.415  Removal action
§ 300.420  Remedial site evaluation
§ 300.425  Establishing remedial
  priorities
§ 300.430  Remedial investigation/
  feasibility study  (RI/FS) and selection
  of remedy
§ 300.435  Remedial design/remedial
  action, operation and maintenance
  The following sections discuss major
comments received on the proposed
subpart E and EPA's responses.
Responses to other comments are
included in the support document to the
NCP.
Section 300.400. General.

  Name: Section 300.400(d)(3).
Designating PRPs as access
representatives. Section 300.400(d)(4)(i).
Administrative orders for entry and
access.
  Proposed rule: Section 300.400(d)(4)(i)
provides that EPA  or any appropriate
federal agency, by  the authority granted
them in CERCLA section 104(e)(5), can
issue an administrative order to secure
entry and access to a site where the site
owner does not give consent to entry or
access. Section 300.400(d)(3) adds
language that allows EPA to designate a
PRP as its representative solely for the
purpose of access,  through CERCLA
section 104(e), but only in cases where
the PRP is conducting a response action
pursuant to an administrative order or
consent decree. This does not create
liability in the federal government or
limit EPA's right to ensure a proper
remedial investigation/feasibility study
(RI/FS).
  Response to comments: Most
commenters expressed support for
§ 300.400(d)(3), authorizing the agency to
designate a PRP as its representative for
access to a site, and concurred that such

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24	Federal Register / Vol. 55, No.  46 / Thursday, March 8, 1990 / Rules  and Regulations
designation would help ensure
cooperative PRPs access to a site owned
or operated by a recalcitrant PRP.
Disparate comments were received on
§ 300.400{d)(4)(i). EPA received
comments stating that PRPs should be
provided access to Fund-lead and state-
lead sites to allow them to conduct their
own testing and sampling in order to
respond knowledgeably to an EPA
remedial action proposal or to prepare
an adequate defense. One commenter
suggested that PRPs should be afforded
the same unrestricted access to a site
that is afforded the lead agency.
Another suggested that entry and access
should be afforded any PRP that
voluntarily conducts a response action,
and not be contingent upon the PRP
entering into a consent order or decree.
A third suggested that the NCP
distinguish between entry and access to
abandoned hazardous waste sites and
sites with active, operating businesses.
They proposed limitations on entry and
access by a lead agency and on the lead
agency's ability to grant others entry
and access to such ongoing commercial
sites to prevent major disruptions of
business. A final commenter proposed
that DOD, as lead agency, should be
granted the authority to deny state
agents access to DOD vessels.
   EPA opposes unrestricted access to a
site by PRPs for several reasons.
Unsupervised access, sampling and
testing would present a potential health
hazard to those on the site or residing
near it. Unrestricted access  could slow
cleanup by disrupting authorized on-site
activities. EPA further believes that the
proper opportunity for access and
sampling is afforded when PRPs are
given the chance to conduct the RI/FS.
Finally, a great deal of information
about the site is already made available
to PRPs and others through the
administrative record for the site.
   The statute makes no distinction
between entry and access at abandoned
sites and sites of operating businesses in
conducting response actions. Protecting
human health and the environment is
EPA's first priority when it gains access
to a site. Protecting private commercial
and industrial enterprises from
interruption may also be considered in
certain circumstances where there is no
effect on EPA's accomplishment of its
primary purpose to protect human
health and the environment. EPA has
clarified this section, however, to make
it clear that one or more PRPs, including
representatives, employees, agents and
contractors of PRPs may be designated
as the lead agency's representative. EPA
has also clarified that EPA or the
appropriate federal agency may request
the Attorney General to commence a
civil action to compel compliance with a
request or order for access.
  Finally, the statute does not recognize
the "uniqueness" of DOD's authority as
a lead agency when granting site entry
and access to any "state or political
subdivision under contract or
cooperative agreement" with EPA under
CERCLA section 104(e)(l). Of course,
the President may issue site-specific
orders under CERCLA section 120(j)
regarding response actions at
Department of Defense or Energy
facilities as necessary to protect
national security.
  Final rule: Proposed § 300.400(d) is
revised as follows:
  1. The language in proposed
§ 300.400(d)(2)(ii) on where the authority
to enter applies is reordered.
  2. Proposed § 300.400(d)(3) is revised
to clarify that one or more PRPs,
including representatives, employees,
agents and contractors of PRPs, may be
designated as the lead agency's
representative.
  3. Proposed § 300.400(d)(4)(i) is
revised to state that EPA or the
appropriate federal agency may request
the Attorney General to commence a
civil action to compel compliance with a
request or order for access. Also, the
phrase "or if consent is conditioned in
any manner" is added to this section.
  Name: Sections 300.5 and 300.400(e).
Definition of on-site.
  Proposed rule: Section 300.400(e)
states that the term "on-site" for
permitting purposes shall include the
areal extent of contamination and all
suitable areas in very close proximity to
the contamination necessary for
implementation of the response action.
  Response to comments: 1. Definition
of on-site. Many commenters supported
the proposed definition of on-site
because it ensures flexibility in the
design and construction of response
actions, provides for expeditious
cleanup of sites, and potentially
provides significant cost savings. The
commenters believed that the four
alternative definitions described in the
preamble were too restrictive and
imposed various constraints on EPA that
would delay and needlessly complicate
actions at sites. One commenter noted
that the RI/FS process, including the
mandatory public participation aspects,
is the functional equivalent of the
permitting process. Another commenter
requested that the permit waiver in
existing NCP § 300.68 for actions under
CERCLA section 106 be retained.
   Other commenters generally
supported the proposed definition but
requested some modifications. Several
questioned using "very" in the
requirement that suitable areas adjacent
to the site be in very close proximity to
the contamination. Some suggested in its
place the phrase  "* * * which are both
as close as practical to the
contamination *  * *." One commenter
assumed that EPA was trying to
establish a principle of practical
effectiveness, i.e., that the area of
contamination and the area in which
response activities occur are sufficiently
related in practice that they should be
treated as one site under the permit
exemption. This commenter requested
further elaboration on this.
  One commenter requested that the
term "areal" be clarified to distinguish
surface area from the atmosphere.
Another requested that the definition
should specifically mention that the
permit exemption applies during
investigations  as well as implementation
of the response action.
  One commenter urged that the permit
exemption not be applied to
construction of new disposal units in
previously uncontaminated areas. The
commenter stated that it is good policy
to discourage new units in
uncontaminated  areas. Other
commenters recommended that on-site
should include all areas affected by
contamination, whether at a discrete
location or through transport of
contaminated  soils or ground-water
plume migration.
  Some commenters supported the
alternative interpretations described in
the preamble to the proposed rule.
Several commenters favored defining
on-site as identical to a CERCLA
facility. One commenter stated that this
definition of on-site should provide that
all treatment performed on-site refers to
the entire facility, and is not limited to
the specific operating unit or area of
contamination. This commenter also
recommended that the permit exemption
be broadened to induce private parties
to voluntarily implement the required
CERCLA actions.
  Another commenter favored defining
on-site the same as CERCLA facility
because  Congress intended to limit
unpermitted activities to on-site  areas,
not near-site areas. One commenter
suggested combining the proposed
definition with the alternative definition
equating on-site  to CERCLA facility. The
commenter believed that this would be
consistent with the use of these words
throughout the NCP and with the
statutory definition of facility.
  One commenter protested that the
scope of the proposed definition was too
broad and beyond statutory intent. This
commenter contended that the proposed

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             Federal  Register / Vol.  55, No. 46  /  Thursday, March 8,  1990 / Rules and Regulations
                                                                            25
 definition enabled EPA to unjustifiably
 usurp state permit laws. The commenter
 requested that the definition of on-site
 be limited to the contiguous area having
 the same legal ownership as the actual
 site of the release but in no event should
 it extend beyond the areal extent of
 contamination. The commenter also
 argued that the statute provides that the
 permit exemption applies only after a
 remedy is selected in accordance with
 section 121. The commenter also
 requested that if the proposed language
 in § 300.400(e)(l) is retained, the
 language "on-site * *  *  shall
 include * * *" should be modified to
 read "on-site  * * * means." The
 commenter believed that the proposed
 language was over-expansive.
  Another commenter generally
 supported the proposed definition but
 requested that EPA clarify that the
 scope of "on-site" for permitting
 purposes can differ from  the
 geographical area covered by the
 affected site. The commenter stated that
 the scope of the affected  site for
 purposes other than permitting is limited
 to the property owned or controlled by
 the site owner or operator in almost all
 situations. The commenter was
 concerned that too broad an
 interpretation of the affected site could
 effectively limit the value,
 transferability and use of adjacent
 property.
  One commenter requested
 clarification on the applicability of the
 on-site permit exemption to all classes
 of non-NPL hazardous substance sites.
 The commenter also asked that the NCP
 clarify that the exemption does not
 apply to RCRA permits and HSWA
 corrective action requirements for solid
 waste management units.
  In response, EPA believes that
 Congress intended to expedite cleanups
 when it provided for the permit
 exemption in CERCLA. Requiring the
 Superfund program to comply with both
 the administrative requirements of
 CERCLA and the administrative and
 other nonsubstantive requirements of
 other laws would be unnecessary,
 duplicative and would delay Superfund
 activities. Today's action is consistent
with that intent.
  EPA disagrees with those commenters
who assert that the definition of "on-
 site" in the rule is unnecessarily broad.
For practical reasons discussed in the
preamble to the proposed rule (53 FR
 51406), on-site remedial actions may, of
necessity, involve limited areas of
noncontaminated land; for instance, an
 on-site treatment plant may need to be
located above the plume or simply
 outside the waste area itself. EPA does
not believe that including in the
 definition of on-site those areas "in very
 close proximity to the contamination"
 and "necessary for implementation of
 the response," is beyond the intent of
 Congress, or that it would allow the
 permit exemption in section 121(e)(l) to
 be used for activities that are that
 fundamentally different in nature from
 conventional on-site actions.
   EPA believes that its proposed
 definition of on-site is sufficiently
 narrow so that the permit exemption is
 not abused yet flexible enough to
 provide for practical and expedient
 implementation of Superfund remedies.
 Thus, EPA will promulgate the language
 as proposed, except that it will delete
 the phrase "for permitting purposes" in
 order to make clear that the "on-site"
 definition is also relevant to the
 definition of "off-site" under CERCLA
 section 121(d)(3).  EPA believes this
 change is necessary for the consistency
 of the CERCLA program, and for the
 proper functioning of CERCLA section
 121(d)(3). In addition, as suggested by a
 commenter, EPA will change the
 language in § 300.400(e)(l) to be
 consistent with the definition of on-site
 in § 300.5 so that both will read that "on-
 site means the areal extent of
 contamination  *  * *" rather than "on-
 site includes *  *  *."
   Proposed § 300.400(e)(l) states that
 the permit waiver applies to all on-site
 actions conducted pursuant to CERCLA
 sections 104,106,  or 122; in effect, this
 covers all CERCLA removal and
 remedial actions (all "response"
 actions). However, a number of other
 federal agencies have inquired as to
 whether this language would reach
 response actions conducted pursuant to
 CERCLA sections 121  and 120. In
 response, EPA has made a
 nonsubstantive clarification of the
 applicability of the permit waiver in
 CERCLA section 121(e)(l) to include on-
 site response actions conducted
pursuant to CERCLA sections 120 and
121.
  The inclusion of actions conducted
 under CERCLA section 121 is  basic, and
 reflects a literal reading of the statutory
provision itself ("No * * * permit shall
be required * * * where such remedial
 action is  selected and carried out in
 compliance with this section"); indeed,
 the inclusion in §  300.400(e)(l) of
 sections 104,106 and 122 is based in
large part on the fact that remedial
 actions carried out under section 104 or
106 authority were selected under
 section 121 (the inclusion of those
 sections also stems from the reference to
 "removal actions" in CERCLA section
121(e)(l)). The addition of CERCLA
 section 120 simply recognizes that the
permit waiver applies  to federal facility
 cleanups conducted pursuant to
 CERCLA section 120(e), which are also
 selected and carried out in compliance
 with CERCLA section 121 (see CERCLA
 section 120(a)(2)).
   In response to other comments, EPA
 intends that "areal" refers to both
 surface areas and the air above the site.
 EPA further intends that the exemption
 applies to all CERCLA activities,
 including investigations and CERCLA
 section 106 actions, conducted entirely
 on-site, before and after the remedy is
 selected. EPA generally agrees with the
 policy of not locating new disposal units
 in uncontaminated land and will only do
 so when the only practical method for
 reducing the risk posed by the
 contamination is to construct a unit in
 very close proximity to the
 contamination. The example described
 in the preamble to the proposed rule
 was contamination located in a lowland
 marshy area. When it is not possible to
 locate an incinerator or construction
 staging area in that marshy area, it may
 be located in an uncontaminated upland
 area in very close proximity and still fall
 within the exemption.
   Commenters supporting the
 alternative definitions have not
 persuaded EPA that they offer
 significant advantages over the
 proposed definition. As stated in the
 preamble to the proposed rule, the
 problem with equating on-site with the
 CERCLA definition of "facility" is that a
 CERCLA facility is limited to the areas
 of contamination; it does not include
 adjacent areas necessary for
 implementation of response activities.3
 On the other hand, a "facility" as
 defined under RCRA (i.e., the property
 boundaries) may be too expansive for
 purposes of the permit exemption, as it
 may encompass many square miles,
 with discrete areas of contamination
 rather than contamination throughout.
 EPA believes that the permit exemption
 should not apply to  activities at a site
 not directly related to responding to the
 contamination. Alternatively, the RCRA
 definition may be too narrow where the
  3 EPA does not believe that the definition being
promulgated today is inconsistent with the statutory
definition of "facility" in CERCLA section 101(9).
First, Congress did not use the term facility, but
rather used the term "on-site," in CERCLA section
121(e)(l). Second, the definitions are not in conflict;
the on-site definition is simply broader in order to
allow EPA to effectuate the cleanup of "facilities"
defined in the statute. (Note that the size or extent
of a facility listed on the NPL may be broader than
the description in the original NPL listing package,
and may extend to those areas where the
contamination in question has "come to be located."
See CERCLA section 101(9); 54 FR at 41017-18
(October 4,1989); 54 FR at 13298 (March 31,1989);
United States v. Conservation Chemical Co., 619 F.
Supp. 162,177,185 (W.D. Mo. 1985).)

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26
Federal Register / Vol.  55, No. 46  /  Thursday, March  8, 1990 / Rules  and Regulations
contamination crosses property
boundaries. Also, defining on-site as the
area having the same legal ownership as
the primary contaminated area may not
be useful when a ground-water plume
has traveled a considerable distance
away from the source of contamination.
As the preamble to the proposed rule
noted, such a definition may artificially
constrain a remedy because the
exemption would be defined in terms of
a property line rather than the
contamination.
  Finally, EPA believes that Congress
intended that activities conducted
entirely on-site pursuant to CERCLA are
exempt from all federal, state or local
permits, including permits under RCRA
and HSWA. A RCRA permitting
requirement would present the same
possibility of delay as any other permit.
This permit exemption does not apply,
however, to cleanup actions conducted
under an authority other than CERCLA,
such as RCRA or HSWA.
  2. Noncontiguous facilities. The
preamble to the proposed rule also
stated EPA's interpretation that when
noncontiguous facilities are reasonably
close to one another and wastes at these
sites are compatible for a  selected
treatment or disposal approach,
CERCLA section 104(d)(4) allows the
lead agency to treat these related
facilities as one site for response
purposes and, therefore, allows the lead
agency to manage waste transferred
between such noncontiguous facilities
without having to obtain a permit (53 FR
51407). EPA requested comment on
whether to limit this approach to
situations where the noncontiguous
facilities are under the ownership of the
same entity. Several comments were
received on EPA's proposal on
noncontiguous facilities.
   Some commenters requested that this
proposal be expanded to include groups
of sites that are not in close proximity to
one another. One commenter requested
an expansion to encompass large
federal facilities with several discrete
areas of contamination that are similar
hi nature but within boundaries that  are
spatially separated.
   In response, the preamble to the
proposed rule noted it may be
appropriate to treat noncontiguous
facilities as one site where the facilities
are "reasonably close to one another"
and the wastes are "compatible for the
selected treatment or disposal
approach" (53 FR 51407). However, the
preamble specifically noted that these
two factors were merely "among the
criteria" EPA uses to decide whether
noncontiguous facilities should be
treated as one site. In some cases, the
distance between facilities may be the
                            deciding factor; in other cases, the
                            consideration of distance may be
                            outweighed by other criteria. Moreover,
                            the "reasonably close" language in the
                            proposal leaves room for Agency
                            discretion; EPA recognizes that what
                            may be a reasonable distance under
                            some circumstances (e.g., in a sparsely
                            populated area) may be less reasonable
                            under others (e.g., in an urban setting).
                            EPA makes these assessments on a
                            case-by-case basis. EPA does not
                            believe that the policy needs to be
                            expanded in response to the comments
                            on distance between areas of
                            contamination; rather, the comments
                            indicate that the policy needs to be more
                            fully explained.
                              CERCLA section 104(d)(4) allows EPA
                            broad discretion to treat noncontiguous
                            facilities as one site for the purpose of
                            taking response action. The only
                            limitations prescribed by the statute are
                            that the facilities be reasonably related
                            "on the basis of geography" or "on the
                            basis of the threat, or potential threat to
                            the public health or welfare or the
                            environment." 4 Once the decision is
                            made to treat two or more facilities as
                            one site, wastes from the several
                            facilities could be managed in a
                            coordinated fashion at one of the
                            facilities and still be an "on-site" action,
                            within the permit waiver of CERCLA
                            section 121(e)(l).
                              In evaluating the appropriateness of
                            aggregating two facilities, EPA evaluates
                            one or both of the statutory criteria. The
                            threshold issue is generally whether the
                            two facilities are "related based on the
                            threat posed," such that it makes sense
                            under CERCLA to treat two or more
                            contamination problems as one; the
                            criterion of "waste treatment
                            compatibility," discussed in the
                            proposal, is one measure of this. For
                            example, where wastes at two CERCLA
                            facilities are similar or identical, and are
                            appropriate for like treatment or
                            disposal, it may be both protective of
                            health and the environment and cost-
                            effective to treat the two facilities as
                            one site, and to take a coordinated
                            response action. The treatment facility
                            built on-site at the first facility (which
                            would not need a permit pursuant to
                            CERCLA 121(e)(l)) could then accept
                            wastes from other contaminated areas
                            "on-site"—i.e., from the second
                            facility—without the need for a permit.
                            This allows response  actions to proceed
                            expeditiously and cost-effectively.
  The analysis of whether facilities that
are "related based on the threat posed"
should be aggregated may, in
appropriate cases, also consider the
distance between the facilities,
especially where transportation risks
are high (such as for highly volatile
wastes or for transfers through heavily
populated areas), or where
transportation costs would be high
(calling into question the cost-
effectiveness of such an option).
  Alternatively, EPA may consider
whether the sites are "related based on
geography," e.g., noncontiguous
CERCLA facilities may both represent
significant sources of contamination to a
common ground-water aquifer or surface
water stream. Here again, factors such
as the distance between the facilities
and the cost-effectiveness of the
aggregated response may also be
appropriate for consideration.
  In any analysis under section
104(d)(4), EPA also believes that it is
critical to consider the views of the
affected state or states, as well as those
of the affected communities (especially
those persons living near the facility
that would receive waste from other,
noncontiguous facilities). Thus, EPA
cannot precisely define what distance is
appropriate for the aggregation of
noncontiguous facilities. EPA will
evaluate, on a case-by-case basis, the
distance between facilities  and the other
factors discussed herein, to decide
whether it is  appropriate to treat two
noncontiguous facilities as one under
CERCLA section 104(d)(4).5
  Another commenter recommended
that the proposal be broadened to cover
areas needed for transportation, storage,
and/or treatment at centralized
locations on an installation where
similar removal or remedial actions can
be taken at more than one site.
  In response, the authority to treat two
noncontiguous facilities as one site is
limited under section 104(d)(4) to
CERCLA facilities (a "facility," as
defined in CERCLA section 101(9), is
generally "any site or area where a
hazardous substance has * *  * come to
be located"); thus, to the extent that the
commenter was suggesting that a
centralized location that is  not a
CERCLA facility may be aggregated
with noncontiguous CERCLA facilities,
EPA disagrees. Such an approach would
go beyond the terms of section 104(d)(4),
and would result in an improper
                              4 Note that facilities may be aggregated for Fund-
                             financed remedial response (as compared to
                             removal or enforcement response) only if both
                             facilities have been listed on the NPL. (See final rule
                             § 300.425(b)(l).)
  5 Note that as a matter of policy, and due in part
 to special provisions in the Hazard Ranking System
 model (e.g., the three mile radius evaluation area),
 EPA applies more restrictive criteria to potential
 site aggregations for the purposes of NPL listings
 (see 48 FR 40663, Sept. 8,1983).

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             Federal Register / Vol. 55, No.  46 / Thursday. March 8,  1990 / Rules and Regulations
                                                                           27
 expansion of the permit waiver for
 CERCLA actions conducted "entirely
 on-site." If a party wishes to establish a
 treatment or disposal facility at a
 location that is not within EPA's
 definition of on-site, it may do so, but it
 must secure the appropriate permits.
   Many comments were received on the
 option of limiting application of section
 104(d)(4) to facilities that are under
 common ownership. Some commenters
 objected to aggregating facilities of
 different ownership because of liability
 problems. They noted that PRPs at one
 site could be liable for the entire amount
 of response costs at the site where on-
 site activity occurs. A commenter stated
 that common ownership may lessen
 some of these legal concerns. One
 commenter recommended that EPA
 grant PRPs releases from liability with
 respect to sites where they did not send
 CERCLA substances, or that PRP
 consent will be obtained, before the lead
 agency employs centralized treatment.
 Another stated that extending this
 aggregation concept to facilities with
 different owners would, in effect, allow
 Superfund sites to take the place of
 permitted waste management facilities
 and goes far beyond the scope of the
 permit exemption.
   Other commenters believed that
 applying CERCLA section 104(d)(4) to
 facilities of multiple ownership was
 acceptable. One commenter stated that
 EPA should treat noncontiguous sites as
 one site when the properties are owned
 by the same entity or owned by separate
 entities that agree to the arrangement.
 Some commenters supported multiple
 ownership but took note of the liability
 problem. One opined that EPA does not
 have the authority to make PRPs at
 noncontiguous sites responsible for
 activities at another site. Another
 suggested that PRP liability would have
 to be limited to the amount of liability
 that would have existed if each site
 were remediated separately.
   In response, the question of whether
 noncontiguous facilities are commonly
 owned may appropriately be among the
 factors for consideration in deciding
 whether or not to treat noncontiguous
 facilities as one site; however, EPA
 disagrees that common ownership
 should be a necessary condition for
 coordinating response actions at
 noncontiguous facilities. At many sites,
 there are numerous, disparate PRPs
 although the environmental threat, and
 the response technology may be the
 same. Limiting application of CERCLA
 section 104(d)(4) to sites of common
 ownership would be unduly restrictive,
with no gain in environmental
protection. Rather, EPA's interpretation
 will allow for consolidated treatment or
 disposal responses at one unit rather
 than at several units, resulting in
 advantages in terms of cost, efficiency,
 and protection of human health and the
 environment.
   EPA recognizes commenters' concerns
 regarding liability, but believes that the
 liability issue is separate and distinct
 from the question of whether two
 facilities are appropriate for treatment
 as one site; the latter issue must be
 evaluated on its own merits. EPA acts to
 treat noncontiguous facilities as one site
 where to do so would be in the best
 interests of achieving sound and
 expeditious environmental cleanups.
 Liability issues potentially arise from
 every response action, whether waste is
 left on site or is sent to a disposal
 facility off-site. Indeed, EPA does not
 believe that a decision to transfer waste
 from a CERCLA facility to a
 noncontiguous CERCLA facility as part
 of an EPA-authorized response action
 will result in a higher risk of liability
 than would the transfer of CERCLA
 wastes to an off-site commercial
 treatment or disposal facility. That risk
 of future liability is inherent in the
 hazardous nature of the waste, and in
 the quality of the treatment or disposal
 technology used; it does not result from
 this rule.
   The commenter opposed to EPA's
 proposal argued that the attempt to
 include multiple sites within the
 definition of on-site may allow
 particular ecological areas, or limited
 segments of the population, to receive
 the adverse impacts of incineration or
 disposal for  distant sites without the
 benefit of permit review.
   In response to comments suggesting
 that PRPs and communities may be
 adversely affected by the application of
 this policy, it is important to note that
 where the lead agency plans to take a
 consolidated response action at two or
 more noncontiguous CERCLA facilities,
 the agency will solicit public comment
 on the proposed remedy. PRPs and
 members of the public at all of the
 noncontiguous facilities will be afforded
 an opportunity to comment on the
 wisdom of aggregating the  sites and
 taking a coordinated response action.
 Indeed, as noted above, EPA has
 identified consultation with the state(s)
 and public as a critical factor in
 deciding whether or not to  treat the
facilities as one site.
  Finally, EPA wishes to clarify that
 even where noncontiguous facilities are
treated as one site, activities at the
aggregated site must comply with (or
waive) substantive requirements of
federal or state environmental laws  that
 are ARARs. In addition, even where
 noncontiguous facilities are treated as
 one site, movement of hazardous waste
 from one facility to another will be
 subject to RCRA manifest requirements.
   Final rule: 1. EPA is revising the
 proposed definition of "on-site" in
 §§ 300.5 and 300.400(e)(l) as follows:
   On-site means the areal extent of
 contamination and all suitable areas in very
 close proximity to the contamination
 necessary for implementation of the response
 action.

   2. Reference to CERCLA sections 120
 and 121 is added to § 300.400(e)(l).
   Name: Treatability testing and on-site
 permit exemption.
   Proposed rule: The preamble to the
 proposed rule stated that the term on-
 site does not extend to a distant facility
 that may be conducting a treatability
 test (53 FR 51407).
   Response to comments: One
 commenter supported a
 recommendation submitted by the
 Hazardous Waste Treatment Council
 (HWTC), summarized in the preamble to
 the proposed NCP, that EPA modify the
 NCP to permit treatability testing
 without the need to obtain a RCRA
 permit (53 FR 51407). EPA responded in
 the preamble to the proposed rule that
 adjustments to permitting requirements
 to encourage treatability testing should
 be accomplished by modifying RCRA
 regulations. EPA disagreed that the term
 on-site should be extended to
 encompass treatability testing at off-site
 facilities.
  A commenter on this discussion in the
 preamble to the proposed rule stated
 that modifying RCRA rules may not be
 effective for CERCLA responses
 because, even if EPA did so, states are
 not required to modify their RCRA
 regulations to be consistent with EPA's
 revision. The commenter recommended
 that EPA expand the permitting
 exemption to include treatability tests
 conducted to support remedy decisions
 at CERCLA sites and promulgate the
 exemption in a separate fast-track
 interim final rule.
  In response, as explained in the
 preamble to the proposed NCP, EPA
 believes that "to the extent that it is
 appropriate to adjust permitting
 requirements to encourage treatability
 testing, that should be accomplished by
 directly modifying the RCRA regulations
 to address such testing generally" (53 FR
 51408). As the commenter has pointed
 out, a rule has been issued under RCRA
 to expand the RCRA permitting
 exemption at 40 CFR 261.4 to include
waste samples used to conduct small-
scale treatability tests. 53 FR 27290,  July

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28
Federal Register / Vol. 55, No. 46 / Thursday,  March 8, 1990 / Rules and Regulations
19, 1988, That rule was issued after the
public was provided notice and
comment opportunities.
  Although the commenter is not fully
satisfied by the result of that RCRA
rulemaklng (speculating that the
exemption may not be implemented
quickly, and that some states may
decide not to implement it at all), EPA is
satisfied that the proper federal
regulatory action has been taken.
Further, if the commenter and other
members of the public are concerned
that states may not follow the federal
example, they are free to urge state
governments to take prompt and similar
action. However, EPA holds to its belief
that the RCRA rulemaking is the proper
forum for deciding whether a RCRA
permit should be required for
treatability tests, including off-site
treatability tests conducted in support of
a CERCLA action.
   EPA also declines to follow the
commenter's recommendation that EPA
interpret the permit exemption in
CERCLA section 121(e) to reach non-
proximate, off-site treatability tests. The
CERCLA permit exemption applies to
removal or remedial actions conducted
"entirely on-site." Although EPA has
interpreted the term "on-site" to include
certain proximate areas not formally
within the area of contamination, that
interpretation has been a limited one.
EPA has included within "on-site" only
 those areas that are both in "very close
proximity" to the contamination and
 "necessary for implementation of the
response action." As  explained in the
preamble to the proposed and final NCP,
 such an interpretation is necessary to
 give practical meaning to the permit
 exemption and to expedite cleanup
 actions. EPA does not believe, however,
 that the language of the statute can be
 interpreted so broadly as to
 accommodate the commenter's request.
 As EPA noted in the preamble to the
 proposed NCP, "EPA does not believe
 that the term 'on-site' can extend to a
 distant facility that may be conducting a
 treatability test." (53  FR 51408).
   Final rule: There is no rule language
 on this issue.
   Name: Section 300.400(h).
 oversight.
   Proposed rule: Proposed § 300.400(h)
 states that the lead agency "may
 provide oversight for actions taken by
 potentially responsible parties to ensure
 that a response is conducted consistent
 with this [rulemaking]." The section also
 states that the lead agency may oversee
 actions by third parties at a site.
   Response to comments: Several of
 those who commented requested
 stronger language in the NCP preamble
                            and the above sections clarifying that
                            EPA will provide for site oversight, and
                            not that it "may" provide oversight.
                              EPA agrees with the comment and
                            will provide oversight for an
                            enforcement action under CERCLA.
                              Final rule: Proposed § 300.400(h) is
                            amended to include the  following
                            language: "EPA will provide oversight
                            when the response is pursuant to an
                            EPA order or federal consent decree."

                            Section 300.405. Discovery or
                            Notification

                              Name: Section 300.5. Definition of
                            "CERCLIS."
                              Proposed rule: Section 300.5 of the
                            proposed rule defined CERCLIS as
                            EPA's comprehensive data base and
                            management system that inventories
                            and tracks releases addressed by the
                            Superfund program. The section stated
                            that CERCLIS contains  three distinct
                            inventories: CERCLIS Removal
                            Inventory, CERCLIS Remedial
                            Inventory, and CERCLIS Enforcement
                            Inventory. The proposed definition of
                            CERCLIS also stated that it contains a
                            record of both "active releases" and
                            "inactive releases". The definition noted
                            that records of these releases are
                            retained in the database as an historical
                            record.
                              Response to comments: One
                            commenter suggested several changes to
                            the definition of CERCLIS. First, the
                            commenter suggested that the definition
                            of CERCLIS should be clarified to
                            indicate whether a site can be on more
                            'than one of the three sub-inventories at
                            the same time. Second, the definition of
                            CERCLIS should state that the term
                            "inactive release" is replacing the "no
                            further action" designation. Third, EPA
                            should specifically state in the
                            definition, as it does in the preamble,
                            that once a "no further action"
                            determination has been made, the site
                            listing will be archived as an historical
                            record and that for routine informational
                            and dissemination purposes only active
                            sites will be listed.
                               The commenter has pointed to several
                            statements in the definition of CERCLIS
                            and in the preamble description of that
                            definition that need to  be clarified. First,
                            CERCLIS contains data integrated from
                            the pre-remedial, remedial, removal, and
                            enforcement sections of the Superfund
                            program; however, it does not contain
                            distinct sub-inventories for each of these
                            program areas (although CERCLIS has
                            the flexibility to retrieve each of these
                             areas separately for tracking, planning
                             or analysis  purposes). Thus, there is
                             only one CERCLIS inventory.
                               Second, the use of the terms "active
                             releases" and "inactive releases" in the
proposal may have been misleading,
since EPA does not use these terms to
categorize sites in CERCLIS. Sites that
EPA decides do not warrant moving
further in the site evaluation process are
given a "No Further Response Action
Planned" (NFRAP) designation in
CERCLIS. This designation signifies that
no additional federal steps under
CERCLA will be taken unless
information later indicates that this
decision was incorrect.
  The commenters' last point, which
stems from a statement in the preamble
to the proposed revisions to the NCP,
also deserves clarification. EPA does
not make a distinction for information
dissemination purposes between NFRAP
sites and sites that will continue in the
site evaluation process. The public has
access to information on all sites listed
in the CERCLIS database. (See next
preamble section for further discussion
of the purpose of CERCLIS.) Sites
remain in the database after they have
been evaluated to document such
evaluation and to avoid unnecessary
repetition of evaluation activities.
  Final rule: EPA has modified the
proposed definition of CERCLIS to
clarify several points noted by the
commenter and to bring the definition
more in line with current Superfund
practice. The final rule's definition of
CERCLIS deletes language that indicates
that there are separate sub-inventories
for removal, remedial, and enforcement
sites. In addition, the final rule drops the
terms "active release" and "inactive
release" and uses the term "No Further
Response Action Planned." The
promulgated definition is:
   CERCLIS is the abbreviation of the
 CERCLA Information System, EPA's
 comprehensive data base and management
 system that inventories and tracks releases
 addressed or needing to be addressed by the
 Superfund program. CERCLIS contains the
 official inventory of CERCLA sites and
 supports EPA's site planning and tracking
 functions. Sites that EPA decides do not
 warrant moving further in the site evaluation
 process are given a "No Further Response
 Action Planned" (NFRAP) designation in
 CERCLIS. This means that no additional
 federal steps under CERCLA will be taken at
 the site unless future information so
 warrants. Sites are not removed from the
 data base after completion of evaluations in
 order to document that these evaluations
 took place and to preclude the possibility that
 they be needlessly repeated. Inclusion of a
 specific site or area in the CERCLIS data
 base does not represent a determination of
 any party's liability, nor does it represent a
 finding that any response action is necessary.
 Sites that are deleted from the NPL are not
 designated NFRAP sites. Deleted sites are
 listed in a separate category in the CERCLIS
 data base.

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             Federal Register / Vol. 55, No.  46 / Thursday, March 8,  1990 / Rules and Regulations	29
   Name: Sections 300.405, 300.410(h) and
 300.415(6). Listing sites in CERCLIS.
   Proposed rule: Proposed
 § 300.405(f)(2) stated that when
 notification indicates that a removal
 action is not required, a remedial action
 may be performed and the release will
 be listed in CERCLIS. Proposed
 § 300.415(e) referred to listing releases in
 the CERCLIS removal inventory.
   Response to comments: Several
 commenters suggested changes to the
 criteria used by EPA to list sites in
 CERCLIS. One commenter proposed that
 EPA not list in CERCLIS sites that had
 already been remedied since the time
 they were first discovered. In addition,
 the commenter urged EPA to adopt a
 delisting procedure for sites in CERCLIS
 that had already been remedied. The
 commenter noted that an alternative to
 this suggestion would be to keep two
 distinct lists—one for "resolved sites"
 and a second for "unresolved sites." A
 second commenter suggested that where
 a notifier is "doubtful"  that a release has
 occurred, no such qualified release
 report should be included in CERCLIS
 without independent verification that a
 legally reportable release did occur.
   In response, EPA believes that the
 commenters have attached more
 significance than is warranted to the
 listing of a site in CERCLIS. As noted in
 the definitions section of this rule
 (§ 300.5), CERCLIS is a  computerized
 database in which EPA stores
 management information on all sites
 evaluated under the Superfund program.
 Sites are discovered through a wide
 variety of mechanisms, including such
 diverse sources as formal notification
 requirements and citizen telephone  calls
 and, as appropriate, are placed in
 CERCLIS. Those sites that are included
 in CERCLIS are not removed from the
 database after completion of
 evaluations in order to document that
 these evaluations took place and to
 avoid unnecessary repetition of
 evaluation activities. Inclusion of a
 specific site or area in the CERCLIS
 database does not represent a finding of
 liability or a determination that
 response action is necessary. EPA also
 does not believe that significant
 financial liability can be inferred by the
mere fact that a site is on CERCLIS.
  The assumption that substantial, or
 any, risk to public health and the
 environment is associated with a site
 contained in CERCLIS is largely
inaccurate. The percentage of sites going
 on to the National Priorities List, which
is EPA's list of sites believed to pose
environmental threats significant
enough to warrant detailed evaluation
for possible remedial -action under
Superfund, is now between 2 percent
 and 7 percent of those assessed. A full
 50 percent of CERCLIS sites are
 eliminated from further consideration at
 the first step of the process, the
 preliminary assessment (PA).
   Sites that EPA decides do not warrant
 moving further in the process are given a
 "No Further Response Action Planned
 (NFRAP)" designation in CERCLIS. This
 means that no additional federal steps
 will be taken at the site unless
 information arrives from some source
 indicating that this decision was
 incorrect. It is particularly important to
 note that EPA's NFRAP decision does
 not mean that there is no hazard
 associated with a given site; it means
 only that based on available information
 at that time, EPA does not plan to  take
 further action  under CERCLA.  States are
 notified of all NFRAP decisions in order
 to inform them that the federal
 government does not plan to proceed
 further, and to allow states the
 opportunity to share any additional data
 they may have that would change  the
 decision. A small percentage of NFRAP
 sites are returned Jo active
 consideration  through this mechanism
 each year.
  Accordingly, EPA is deleting language
 in the rule that implies that a release is
 entered into CERCLIS after a remedial
 evaluation has been performed. In fact,
 sites are generally entered into CERCLIS
 before a remedial evaluation has been
 performed. Thus, EPA is revising this
 rule  language to more accurately reflect
 EPA evaluation practice.
  Also, consistent  with the explanation
 in the previous preamble section that
 CERCLIS does not contain distinct
 inventories for the  removal, remedial
 and enforcement programs, references
 to removal and remedial inventories
 have been deleted  from proposed
 §§ 300.405(f)(2), 300.410(h) and
300.415(e).
  A  sentence has been added to
 § 300.405(g) clarifying that federal
 agencies are not legally obligated to
 comply with the requirements of Title III
because they are not included in the
Title III definition of "person" contained
in section 329(7). Federal agencies  are
encouraged, however, to establish
programs to implement Title III to the
extent practicable at their facilities.
  Many federal facilities have already
established procedures for working with
local emergency planning committees
and state emergency response
commissions on compliance with the
emergency planning and reporting
requirements under Title III.
  Final rule: Proposed §§ 300.405 and
300.415(e) are revised as follows:
  1. The last sentence in proposed
§ 300.405(b) is revised as follows (see
 explanation in preamble discussion on
 § 300.615): "If it is not possible to notify
 the NRC or predesignated OSC
 immediately, reports may be made
 immediately to the nearest Coast Guard
 unit. In any event, such person in charge
 of the vessel or facility shall notify the
 NRC as soon as possible."
   2. The reference to the "CERCLIS
 Remedial Inventory" has been deleted
 from proposed § 300.405(f)(2).
   3. The following sentence has been
 added to § 300.405(g): "Federal agencies
 are not legally obligated to comply with
 the requirements of Title III of SARA."
   4. Proposed § 300.415(e) on CERCLIS
 removal inventory is deleted. The
 sections in § 300.415 have been
 renumbered.

 Sections 300.410 and 300.420. Removal
 and Remedial Site Evaluations

   Name: Section 300.410. Removal site
 evaluation.
   Proposed rule: Proposed § 300.410
 describes the removal site evaluation
 process, but does not address funding
 constraints placed on the evaluation or
 PRP participation in the evaluation.
   Response to comments: One
 commenter recommended including NCP
 preamble language that would authorize
 the OSC to use outside scientific experts
 during the removal site evaluation,
 providing that the PRP is willing to pay
 for such scientific support.
   There is nothing in the statute to
 prevent or discourage the use of
 additional scientific fact experts at a
 site provided PRPs are willing to pay for
 it themselves. The discussion in the
 preamble to the proposed § 300.410
 suggested such additional activity is
 permissible with OSC oversight: "There
 may also be instances of voluntary
 response where the OSC provides
 monitoring to assure proper response
 and to avoid a situation where followup
 action would be needed"  (53 FR 51409).
 Any data generated by outside scientific
 experts would have to conform to
 appropriate provisions of the NCP in
 order to be used as the basis for
 decisions under CERCLA.
  Final rule: EPA is promulgating
 § 300.410 as proposed except for a
 revision to § 300.410(g) (see preamble
 section below) and deletion of the last
 sentence in § 300.410(h) (see preamble
 section above on listing sites in
 CERCUS).
  Name: Section 300.410(c)(2). Removal
 site evaluation. Section 300.420(c)(5).
Remedial site evaluation.
  Proposed rule: Section 300.410(c)(2)
details the steps of a removal
preliminary assessment. Section

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30	Federal Register / Vol.  55, No. 46 / Thursday.  March 8, 1990 / Rules and Regulations
300.420(c)[5) describes the information
contained In a lead-agency report
following completion of a remedial site
investigation, including documentation
as well as sampling data and potential
risks to humans and the environment.
  Response to comments: A commenter
asked that the NCP state that
reasonable efforts will be made during
the site investigation phase to identify
PRPs and provide them copies of the
preliminary assessment/site
investigation (PA/SI) report and an
opportunity to comment.
  The removal and remedial processes
as currently outlined in the NCP provide
PRPs with a reasonable opportunity to
review and comment on lead agency
actions at a site when the proposed plan
is made available. Before this time,
documents placed in the administrative
record, including the PA/SI, are
available for public inspection. In
addition, PRPs that are interested in
more extensive involvement in the
investigation process may agree to
undertake removal or remedial actions
through a settlement agreement with
EPA. They may be granted substantially
more site involvement than non-settling
PRPs.
   Extending the formal review and
comment period to PRPs as far back in
 the removal and remedial process as the
PA/SI stage would unnecessarily slow
 down preliminary fact-gathering at a
 site. In cases where removal actions are
 considered emergency or time-critical,
 such review and comment time would
 unjustifiably delay response to a
 dangerous situation. Also,  in most cases,
 the PRP search has not been completed
 or even  started in a comprehensive
 manner at the time of the PA/SI.
 Accordingly, specifying formal
 procedures for PRP involvement at that
 time is not practical.
   Final rule: EPA is promulgating
 §§ 300.410{c)(2) and 300.420(c)(5) as
 proposed.
   Name: Section 300.410(g). Notification
 of natural resource trustee.
   Final rule: Section 300.410{g) is
 revised as follows (see preamble
 discussion on § 300.615):
   If natural resources are or may be injured
 by the release, the OSC or lead agency shall
 ensure that state and federal  trustees of the
 affected natural resources are promptly
 notified  in order that the trustees may initiate
 appropriate actions, including those
 identified in subpart G of this part. The OSC
 or lead agency shall seek to coordinate
 necessary assessments, evaluations,
 investigations, and planning with such state
 and federal trustees.
    Name: Sections 300.415(b)(4) and
 300.420(c)(4). Sampling and analysis
 plans.
  Proposed rule: Proposed § 300.415 did
not describe sampling requirements.
Proposed § 300.420(c)(4) described the
procedures necessary for preparing a
site-specific sampling plan for a
remedial site inspection.
  Response to comments: One
commenter stated that EPA should
revise § 300.420(c)(4) to specify review
of the sampling plan to  ensure that
appropriate sampling and quality
control procedures are followed. In
response, EPA is revising the description
of the site-specific sampling plan in
proposed § 300.420[c)(4) to conform with
the purpose of the quality assurance
project plan CQAPP) defined in § 300.5
and the QAPP and sampling and
analysis plan described in
§ 300.430(b)(8), which states that such
plans will be approved by EPA. This
change emphasizes the similarity of
these activities in the site evaluation
and remedial investigation parts of the
program. In addition, EPA believes that,
when samples will be taken, it is
appropriate to describe sampling
requirements for non-time-critical
removal actions to ensure that data of
sufficient quality and quantity will be
collected for this type of action.
  EPA also notes that portions of the
QAPP may incorporate by reference
non-site-specific standardized portions
of already-approved QAPPs, especially
those portions addressing policy and
 organization,  or describing general
functional activities tq be conducted at a
 site to ensure adequate data. This
 eliminates the necessity to reproduce
 non-site-specific quality assurance
 procedures for every site.
   Final rule: Proposed §§ 300.415(b)(4)
 and 300.420(c)(4) are revised as follows:
   1. In § 300.415(b)(4),  a requirement has
 been added for developing a  sampling
 and analysis  plan, when samples will be
 taken.
   2. Section 300.420(c)(4) is revised to
 better describe the required contents of
 the sampling  and analysis plan.

 Section 300.415. Removal Action.

   Name: Section 300.415 (b) (5) (ii).
 Removal action statutory exemption.
   Proposed rule: CERCLA section
 104(c)fL)(C) provides a new exemption
 to the statutory limits  on Fund-financed
 removal actions of $2 million and 12
 months. This exemption, stated in the
 NCP in § 300.415(b)(5)(ii), is applicable
 when continued response is otherwise
 appropriate and consistent with the
 remedial action to be taken. EPA
 expects to use the exemption primarily
 for proposed and final NPL sites, and
 only rarely for non-NPL sites (see 53 PR
 51409).
  Response to comments: One
commenter supported EPA's proposal to
allow waiver of the limits on Fund-
financed removal payments if such an
exemption is consistent with remedial
actions.
  One commenter stated that the
decision to engage in a removal action
should be based on site conditions and
their impact on health and the
environment, not cost  or time; that once
EPA concludes that a removal action is
appropriate, the various alternatives
should be analyzed at both likely NPL
and non-NPL sites equally. The
commenter felt that EPA should use the
consistency exemption more liberally
where time, rather than money, was  the
complicating factor.
  In response, Congress has made the
determination that cost and time are
relevant factors in deciding how
extensive a Fund-financed removal
action may be; thus, contrary to the
commenter's remark, EPA will continue
to consider such factors. Further,
Congress did not differentiate between
time and dollar limits in setting  the
exemptions; EPA notes that exceeding
the time limit will often also increase the
cost of  a removal action, even though it
does not necessarily raise the cost to
over $2 million. Thus, EPA does not
believe it should set different criteria for
their use.
   The new exemption from the  time and
 dollar limits  applies to any Fund-
financed removal and thus encompasses
 state-lead as well as EPA-lead
 responses. Actions where EPA has the
 lead, but is to be reimbursed by private
 parties or other federal agencies, are
 still subject to the statutory limits and
 provisions for exemption.
   Because the exemption requires
 consistency with the remedial action to
 be taken, its use is well suited to
 proposed or final NPL sites where
 remedial action is likely to be taken. It
 may also be appropriate to use this
 exemption at some non-NPL sites where
 justified on a case-by-case basis.
   Final rule: EPA is promulgating the
 rule as proposed.
   Name: Section 300.415(i). Removal
 action  compliance with other laws.
   Existing rule: The current NCP in
 § 300.65(f) requires that Fund-financed
 removal actions and  removal actions
 pursuant to CERCLA section 106 attain
 or exceed, to the greatest extent
 practicable considering the exigencies of
 the circumstances, applicable or
 relevant and appropriate federal public
 health and environmental requirements.
  Other  federal criteria, advisories, and
  guidance and state standards are to be

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            Federal Register / Vol. 55, No.  46 / Thursday, March  8, 1990 / Rules and Regulations
                                                                         31
considered, as appropriate, in
formulating a removal action.
  Proposed rule: Proposed § 300.415(j]
[renumbered as 300.415{i) in the final
rule) required that removal actions
attain, to the extent practicable
considering the exigencies of the
situation, all state as well as federal
applicable or relevant and appropriate
requirements (ARARs).6 Other federal
and state criteria, advisories, and
guidance shall, as appropriate, be
considered in formulating the removal
action. The proposed revisions also note
that statutory waivers from attaining
ARARs may be used for removal
actions. In addition, the preamble to the
proposed revisions provided guidance
clarifying three factors to be considered
in determining the "practicability" of
complying with ARARs: The exigencies
of the situation, the scope of the removal
action to be taken, and the effect of
ARAR attainment on the removal
statutory limits for duration and cost (53
FR 51410-11).
  Response to comments: Several
commenters supported the proposed
revision to the NCP requiring that both
federal and state ARARs be complied
with when conducting removal actions.
One commenter asked what
documentation is required to show that
ARARs have been identified and
requested that EPA develop guidance
providing hypothetical conditions
describing the extent to which ARAR
analysis should be performed. Another
commenter stated that non-Fund-
financed removal actions conducted at
federal facilities also should be required
to comply with ARARs.
  In opposition to the proposal, a
number of commenters pointed out that
Congress did not intend that removal
actions be required to comply with
ARARs. The commenters suggested that,
based on the legislative history,
Congress intended that only remedial
actions be subject to compliance with
ARARs. According to one commenter,
the legislative history states that ARARs
do not apply during removal actions
because removal actions are short-term,
relatively low-cost activities of great
urgency that should be free of the delays
that may arise if it is necessary to
identify and attain ARARs.
  Other commenters suggested that
attainment of ARARs should not be
required during removal actions because
removal actions are not intended to
completely clean up a site, but rather to
quickly eliminate or control an
  6 Note that proposed § 300.415(e) has been
deleted (see preamble section above on "Listing
sites in CERCLIS," and the remaining sections in
§ 300.415 have been renumbered.
 immediate threat. The commenters
 argued that compliance with ARARs is
 based on what remains on site after an
 entire remedy is completed, not after a
 particular problem is controlled. In
 addition, several commenters argued
 that the main purpose of the removal
 program is quick mitigation of threats,
 and that requiring ARARs to be
 complied with during removal actions
 undermines this purpose by slowing
 down the cleanup process. The
 commenters suggested that such
 procedural delays as identification of
 ARARs will hinder the removal
 program's ability to respond to
 emergencies swiftly.
  Several additional  commenters
 suggested that requiring attainment of
 ARARs discourages PRPs from
 undertaking removal  actions. Fund-
 financed removals can use the statutory
 limits to limit attainment of ARARs;
 those limits do not apply to PRP actions.
  One commenter opposed the provision
 that requires OSCs to justify why they
 are not attaining ARARs during a
 specific removal action. The commenter
 argued that the prospect of an OSC
 being required to justify why he or she is
 not attaining all ARARs is inconsistent
 with removal program objectives.
  Other commenters  believed that the
 current policy concerning compliance
 with ARARs during removal actions
 should be replaced with a more
 discretionary policy. They suggested
 that OSCs should only be required to
 comply with ARARs that are most
 crucial to the proper stabilization of the
 site and protection of public health and
 the environment.
  In response, EPA has carefully
reviewed this issue in light of the public
 comments, and believes a number of
 clarifying points need to be made. First,
 as a threshold matter, EPA agrees that
 Congress-did not, in the 1986
 amendments to CERCLA, "require" EPA
 to meet ARARs during removal actions.
However, it has been EPA's policy since
1985, established in the NCP, to attain
ARARs during removals to the extent
practicable, considering the exigencies
 of the situation. EPA believes that this is
 still a sound policy. Reference to
requirements under other laws (i.e.,
ARARs) help to guide EPA in
determining the appropriate manner in
which to take a removal action at many
sites.
  If, for example, a component of the
removal action is to discharge treated
waste to a nearby river or stream,
effluent limitations based on federal or
state water quality criteria will be useful
in determining the extent of such
treatment. Today's policy is consistent
 with section 105 of CERCLA which
 directs that the NCP include methods
 and criteria for determining the
 appropriate extent of removals. Thus,
 EPA is maintaining the policy described
 in the preamble to the proposed NCP,
 although EPA has modified the factors
 to be considered in determining
 practicability.
  A number of other comments
 questioned the extent to which removals
 should attempt to attain ARARs. In
 responding to such comments, it is
 important to note that the policy that
 removals comply with ARARs to the
 extent practicable is defined in large
 part by the purpose of removal actions.
  The purpose of removal actions
 generally is to respond to a release or
 threat of release of hazardous
 substances, pollutants, or contaminants
 so as to prevent, minimize, or mitigate
 harm to human health and the
 environment. Although all removals
 must be protective of human health and
 the environment within their defined
 objectives, removals are distinct from
 remedial actions in that they may
 mitigate or stabilize the threat rather
 than comprehensively address all
 threats at a site. Consequently, removal
 actions cannot be expected to attain all
 ARARs. Remedial actions, in contrast,
 must comply with all ARARs (or invoke
 a waiver). Indeed, the imposition by
 Congress of limits on the amount of time
 and Fund money that may be spent
 conducting a removal action often
 precludes comprehensive remedies by
 removal actions alone. Removal
 authority is mainly used to respond to
 emergency and time-critical situations
 where long deliberation prior to
 response is not feasible. All of these
 factors—limits on funding,  planning
 time, and duration, as well as the more
 narrow purpose of removal actions—
 combine to circumscribe the
 practicability of compliance with
 ARARs during individual removal
 actions. Indeed, the vast majority of
 removals involve activities where
 consideration of ARARs is not even
 necessary, e.g., off-site disposal,
 provision of alternate water supply, and
 construction of fences, dikes and
 trenches.
  Further, it should be noted that
requirements are ARARs only when
they pertain to the specific action being
 conducted. If, for example,  a site has
leaking drums, widespread soil
 contamination, and significant ground-
water contamination, the removal action
 at the site might only involve actions
necessary to reduce the near-term
threats, such as direct contact and
further deterioration of the ground

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32
Federal Register / Vol. 55,  No. 46 / Thursday,  March 8,  1990 / Rules  and Regulations^
water; thus, the removal action might be
limited to removal of the drums and
surface debris and excavation of highly
contaminated soil. Requirements
pertaining to the cleanup of ground-
water contamination would not be
ARARs for that action because the
removal action is not intended to
address ground water; rather,
requirements pertaining to the drums,
surface debris, or contaminated soil may
be ARARs for the specific removal
action. Once the lead agency makes the
determination that the requirements are
ARARs for a removal, then it must
determine whether compliance is
practicable.
  It will generally be practicable for
removal actions to comply with ARARs
that are consistent with the goals and
focus of the removal. However, as
stated above, removals are intended to
be responses to near-term threats, with
the ability to respond quickly when
necessary; thus, ARARs that would
delay rapid response when it is
necessary, or cause the response to
exceed removal goals, may be
determined to be impracticable. Of
course, even where compliance with
specific ARARs is not deemed
practicable, the lead agency for a
removal must use its best judgment to
ensure that the action taken is
protective of human health and the
environment within the defined
objectives of the removal action.
  In order to better explain how a lead
agency can determine when compliance
with an ARAR is practicable,  the
preamble to the proposed NCP included
 three factors for consideration:
Exigencies of the situation, scope of the
removal action and the statutory limits
 (53 FR 51410-11). Upon consideration of
 comments, EPA has decided to
 enumerate in the rule only two of those
 three factors as important for
 determining practicability: Urgency
 (simply renaming exigencies)  of the
 situation, and scope of the removal
 action. EPA believes that statutory
 limits^ because they relate to  the
 authority to conduct removal actions,
 are easier to consider within, rather
 than apart from, the factor of scope of
 the removal action when determining
 whether compliance with an ARAR is
 practicable.
   The factor of urgency of the situation
 relates to the need for a prompt
 response. In many  cases, appropriate
 response activities must be identified
 and implemented quickly in order to
 ensure the protection of human health
 and the environment. For example, if
 leaking drums pose a danger of fire or
 explosion in a residential area, the
                           drums must be addressed immediately,
                           and it will generally be impracticable to
                           identify and comply with all potential
                           ARARs.
                             The second factor, the scope of the
                           removal action relates to the special
                           nature of removals in that they may be
                           used to minimize and mitigate potential
                           harm rather than totally eliminate it.
                           Removals are further limited in the
                           amount of time and Fund money that
                           may be expended at any particular site
                           in the absence of a statutory exemption.
                           Again, using the example above, even
                           though standards requiring cleanup of
                           the lower level soil contamination
                           would be an ARAR to that medium, they
                           would be outside the scope of the
                           removal action when such cleanup is not
                           necessary for the stabilization of the
                           site, or when it would cause an
                           exceedance of the statutory limits and
                           no exemption applied. Hence, such soil
                           standards, while ARARs, would not be
                           practicable to  attain considering the
                           exigencies of the situation. Of course,
                           such standards may be ARARs for any
                           remedial action that is subsequently
                           taken at the site.
                             EPA disagrees with the comment that
                           requiring PRPs to comply with ARARs
                           to the extent practicable discourages
                           PRPs from conducting removals because
                           the statutory limits do not apply to non-
                           Fund-financed actions. Although the
                           limits apply by law to Fund-financed
                           actions only, EPA has the discretion
                           under CERCLA section 104(c)(l) to take
                           removal actions that exceed those
                           limits, in emergency situations or where
                           the action is otherwise appropriate and
                           consistent with the remedial action that
                           may be taken at the site. EPA will select
                           the appropriate remedy, even where an
                           extensive removal action is warranted,
                           regardless of whether the site is Fund-
                           lead or PRP-based. The only difference
                           is that if the site is Fund-lead, an
                            exemption must first be invoked in order
                            to proceed with the action. Thus, the
                            time and dollar limitations generally will
                            not result in PRPs performing a more
                            extensive removal than EPA itself would
                            conduct. That is, EPA's selection of a
                            removal action, including what ARARs
                            will be attained, will not be based on,
                            who will be conducting the removal.
                              Finally, as stated in the preamble to
                            the proposed NCP (53 FR 51411), even if
                            attainment of an ARAR is practicable
                            under the factors described above, the
                            lead agency may also consider whether
                            one of the statutory waivers from
                            compliance with ARARs is available for
                            a removal action. EPA is developing
                            guidance on the process of complying
                            with ARARs during removal actions.
                            EPA generally will only require
documentation of ARARs for which
compliance is determined to be
practicable, in order not to burden OSCs
with substantial paperwork
requirements.
  Final rule: Proposed § 300.415(j)
(renumbered as final § 300.415(i)) is
revised as follows:
  1. The following has been added to
identify factors that are appropriate for
consideration in determining the
practicability of complying with ARARs:
  In determining whether compliance with
ARARs is practicable, the lead agency may
consider appropriate factors, including the
following:
  (1) The urgency of the situation; and
  (2) The scope of the removal action to be
conducted.
  2. The reference to advisories, criteria
or guidance has been modified (see
preamble section below on TBCs).
  3. The description of ARARs has been
reworded (see preamble section below
on the definition of "applicable.")
  Name: Sections 300.5, 300.415(g) and
(h), 300.500(a), 300.505 and 300.525(a).
State involvement in removal actions.
  Existing rule: Sections 300.61 and
300.62 of the current NCP encourage
states to undertake actions authorized
under subpart F. Such actions include
removal and remedial actions pursuant
to CERCLA section 104(a)(l). The
regulation notes further that CERCLA
section 104(d)(l) authorizes the federal
government to enter into contracts or
cooperative agreements with the state to
take Fund-financed response actions
authorized under CERCLA, when the
federal government determines that the
state has the capability to undertake
such actions.
   Proposed rule: Proposed § 300.415(h)
and (i) (renumbered as final § 300.415(g)
and (h)) and § 300.525(a) would codify
EPA's existing policy of entering into
 cooperative agreements with states to
undertake Fund-financed removal
 actions, provided that states follow all
 the provisions of the NCP removal
 authorities. The preamble to the
 proposed rule suggested that non-time-
 critical actions are the most likely
 candidates for state-lead removals (53
 FR 51410). Proposed § 300.510(b)
 provided further that facilities operated
 by a state or political subdivision
 require a minimum cost share of 50
 percent of the total response costs if a
 remedial action is  taken. Section 300.505
 describes what EPA  and a state may
 agree to in a Superfund Memorandum of
 Agreement (SMOA) regarding the nature
 and extent of interaction on EPA-lead
 and state-lead response. The preamble
 clarified that, where practicable, a
 SMOA may include general provisions

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             Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules  and Regulations
                                                                           33
 for interaction on removal actions (53
 FR 51455). The preamble to the proposed
 rule described other topics for EPA/
 state discussion on provisions in
 SMOAs on removal actions (53 FR
 51454-55).
   Response to comments: One
 commenter supported the proposed
 revision stating that state-lead removals
 through a cooperative agreement would
 be a very positive step. The commenter
 argued, however, that it would be
 unreasonable to provide guidance that
 strongly encourages states to conduct
 such removals when no funds for
 conducting them are made available.
   Several commenters specifically
 called for the delegation of the removal
 program to the states. One of these
 commenters stated that the revised NCP
 should include more detailed and
 permissive language specifically
 allowing for program authority to be
 delegated to states. According to the
 commenter, this would allow response-
 capable states to pursue program
 authorization from EPA through
 cooperative agreements rather than
 through single or multiple project
 authorizations. In addition, the
 commenter recommended that states
 which become authorized to conduct
 removal actions be granted funding
 support similar to the support that EPA
 provides for the Technical Assistance
 Team and the Emergency Response
 Cleanup Services, thereby allowing the
 state to effectively administer the duties
 of the lead .agency during a removal
 action. The commenter also
 recommended that authorized states be
 allowed full reimbursement of their
 removal costs from the Hazardous
 Substances Trust Fund. Another
 commenter suggested allowing states to
 develop administrative and technical
 staff capable of overseeing removal
 actions. The commenter believed that a
 policy should be included in the NCP
 that allows for the states to hire
 contractors on a stand-by basis to allow
 for timely response to removal sites. A
 third commenter recommended that
 states be permitted by the NCP to
 establish predesignated OSCs/RPMs
 who would have the authority to use
 federal funds pursuant to a cooperative
 agreement or contract for cleanup of oil
 and hazardous substances  under these
 programs.
  Other commenters called for at least
 some expanded opportunities for state
involvement in the removal program.
 Several commenters argued that states
 should be  allowed to conduct more than
just non-time critical removals,
indicating that it would be faster and far
less costly for states to conduct all  types
 of removals. Another commenter argued
 that states should be afforded the
 opportunity to conduct removal actions
 under cooperative agreements unless an
 emergency exists that does not allow
 time for EPA to enter into a cooperative
 agreement with the state. One
 commenter suggested that states now
 have very effective Superfund programs
 with experienced and capable staffs.
 According to the commenter, some of
 these programs have better cleanup
 records than the federal program. The
 commenter states that EPA has failed to
 take full advantage of these state
 programs to improve the performance of
 the federal Superfund effort.
   Several  commenters requested
 clarification of EPA policies on state-
 lead removals. The commenters
 requested  further clarification in the
 NCP regarding the circumstances under
 which states will be  allowed to conduct
 non-time-critical removals, what criteria
 will be used to make decisions
 concerning when states will be allowed
 to conduct such actions, and how a
 state-lead removal program will be
 structured.
   Other commenters suggested that EPA
 more clearly define the EPA/state
 relationship concerning removal actions.
 One of these commenters suggested that
 EPA should emphasize state/EPA
 coordination on all removal actions
 regardless  of who is  in the lead. Another
 commenter stated that the NCP should
 outline the EPA/state interaction on
 removal sites in the same detail as the
 relationship is outlined at remedial sites.
  One commenter representing a state
 presented specific examples of how
 present state/EPA removal interaction
 is ineffective. The commenter alleged
 that the state had been left out of public
 meetings and meetings between EPA
 and the PRPs, that the state is not
 consulted on press releases, and that
 state comments on negotiations with
 PRPs are not considered by EPA.
 Another commenter suggested that EPA
 in general take into consideration state
 comments when conducting removal
 actions.
  In response, EPA is committed to state
 involvement in the removal program and
 is, therefore, revising regulatory
 language in §§ 300.5,  300.500(a) and
 300.505 regarding SMOAs to include
 references to removal actions. EPA
 believes that the SMOA can often be
used to specify the areas appropriate for
EPA/state interaction during removal
 actions. As noted in the preamble to the
proposed rule, the SMOA may include:
 (1) The process to be  followed by EPA
and a state  to notify each other of a
determination that a removal action is
  necessary; (2) the procedures to be
  followed by EPA and a state to consult
  and comment upon the nature of any
  proposed removal action; and (3) the
  procedures to be followed to provide for
  post-removal site control for Fund-
  financed removals as described in
  § 300.415(k). A definition of "post-
  removal site control" has been added to
  § 300.5 because this term is used in
  several places in the NCP. If EPA and a
  state desire, the SMOA provisions may
  also include details on interaction at
  public meetings, negotiations with PRPs,
  etc. EPA wishes to emphasize, however,
  that the negotiations concerning EPA/
  state interaction during removal actions
  should not be allowed to interfere with
  or prolong the completion of the SMOA
 negotiations. If EPA and the state find
 that discussion of the provisions
 regarding removal actions is delaying
 completion of the SMOA, they should
 proceed with the SMOA negotiations
 without removal action provisions, and
 at a later date amend the SMOA to
 include these provisions.
   Currently, EPA's policy is that states
 may conduct a non-time-critical removal
 action for a specific site. In response to
 comments, EPA considered allowing
 states to conduct Fund-financed time-
 critical and emergency removal actions
 as well. After careful consideration,
 however, EPA decided to continue its
 current policy of allowing only non-time-
 critical removal actions to be state-lead.
 In arriving at this decision, EPA weighed
 several factors concerning the nature of
 removal actions, and the history of the
 removal program. First, EPA may not
 obligate funds in anticipation of removal
 actions that may take place in the
 future. Therefore, states must enter into
 site-specific cooperative agreements
 (CAs) before they are allowed to
 undertake a removal action. In the past,
 EPA attempted using CAs more
 extensively hi the removal program but
 found that the CA negotiating process is
 often long and complicated. EPA was
 concerned that the process could hinder
 timely response to releases requiring
 emergency or time-critical action.
 Second, the removal program has
 limited funding. Because of the necessity
 for ensuring adequate response
 capabilities on the federal level, EPA
 does not anticipate that additional
 funding will be available for states to
 conduct emergency and time-critical
removal actions and,  therefore, does not
believe it would be feasible to allow
states to undertake these types of
response actions. For these reasons,
EPA believes that its current policy of
permitting states to conduct only non-
time-critical removal actions allows

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            Federal Register / Vol. 55. No. 46 / Thursday. March  8. 1990 / Rules and Regulations
EPA to retain its ability to respond
immediately to releases that threaten
human health and the environment
while simultaneously providing states a
role in the removal action process.
  For a'state to conduct Fund-financed,
non-time-critical removal actions, the
state must first enter into a CA with
EPA. Additionally, only removal actions
that are listed on the approved or
revised Superfund comprehensive
accomplishments plan (SCAP) can be
state-lead. The Regional  Administrator
(RA) evaluates a state's request to lead
a Fund-financed removal action and
decides on a case-by-case basis whether
the action is appropriate for state-lead.
When making his/her decision the RA
considers: (I) The state's experience in
leading activities conducted under the
remedial program that are similar to the
response actions required to clean up or
 to stabilize the release at the site under
 evaluation for state-lead; (2) the state's
 experience in responding to hazardous
 substance releases independent of
 federal involvement and funds; and (3)
 whether the state has prepared a state
 contingency plan for hazardous
 substance release response. For more
 information concerning state-lead
 removals see 40 CFR part 35, subpart O.
   In further response to the comment on
 delegating authority (and transferring
 funds) to states, EPA notes that although
 authority to conduct time-critical and
 emergency removals is not being
 delegated to states, funding may be
 available under the Core Grant Program
  to assist states in developing an infra-
  structure for involvement and
  interagency coordination during removal
  actions. For more information
  concerning the Core Grant Program see
  40 CFR part 35, subpart O.
    Final rule: 1. Proposed §§ 300.5
  [definition of SMOA), 300.500(a),
  300.505(a)(3) and 300.505(d)(l) are
  revised to add the word "removal"
  before the word "pre-remedial."
    2. Proposed § 300.415(h) and (i) are
  renumbered as § 300.415{g) and (h) and
  promulgated as proposed.
    3. A definition for "post-removal site
  control" is added to § 300.5 as follows:
    "Post-removal site control" means those
  activities that are necessary to sustain the
  integrity of a Fund-financed removal action
  following its conclusion. Post-removal site
  control may be a removal or remedial action
  under CERCLA. The term includes, without
  being limited to, activities such as relighting
  gas flares, replacing filters and collecting
  Icachntc.
    4. References to "post-removal site
  control" have been added to the
  definitions in § 300.5 of "remove or
  removal" and "remedy or remedial
  action."
Section 300.425. Establishing remedial
priorities.

  Name: Section 300.5. Definition of
National Priorities List. Section 300.425.
Establishing remedial priorities.
  Proposed rule: Section 300.5 included
a definition of National Priorities List.
Section 300.425 identified the criteria,
methods, and procedures EPA uses to
establish its priorities for remedial
action. The proposed rule stated that
although only those releases included on
the NPL  are eligible for Fund-financed
remedial action, remedial planning
activities pursuant to CERCLA section
104(b) are not considered remedial
actions and are not limited to NPL sites.
  Response to comments: EPA has made
several changes to language on listing
sites on  the National Priorities List.
First, EPA is revising the rule to explain
more clearly which EPA authorities are
limited to sites on the NPL.
   In both the existing NCP (40 CFR
300.66(c)(2), 300.68(a)(l)) and the 1988
proposed revisions (§ 300.425(b)(l), 53
FR at 51502), EPA has stated that Fund
money may be used for CERCLA
 remedial actions only for those releases
 that are listed on the NPL. The 1985  NCP
 (40 CFR 300.68(a)(l)) and the proposed
 revision went on to state that this
 limitation on the use of Fund money
 would not apply to "remedial planning
 activities pursuant to CERCLA section
 104(b)," which despite the use of the
 word "remedial" in the name, come
 within the definition of "removal"
 actions under CERCLA section 101(23).
 See 54 FR 41002 (October 4,1989); 52 FR
 27622 (July 27,1987); 50 FR 47927
 (November 20,1985). In the interest of
 clarity on this point, EPA has amended
 final § 300.425(b)(l) to provide that  the
 limitation on remedial action funding to
 releases on the NPL would not apply to
 "removal actions (including remedial
 planning activities, RI/FSs, and other
 actions taken pursuant to CERCLA
 section 104(b))." This clarification is
 consistent with the proposed and final
  § 300.415(b)(l), which states that a
 removal action may be taken at
  appropriate sites regardless of inclusion
  on the NPL.
    The proposed and final rule, at
  § 300.425(b)(4), also make clear that EPA
  may take enforcement actions at non-
  NPL sites. EPA also notes that it has the
  discretion to use its authorities under
  CERCLA, RCRA, or both to accomplish
  appropriate cleanup action at a site,
  even where the site is listed on the NPL.
  (See 54 FR at 41009 (Oct. 4,1989).) In
  particular, where a site is at an active,
  RCRA-permitted facility, and the
  owner/operator is present and has
  adequate financial resources to fund the
entire cleanup, EPA may consider
whether the use of RCRA or CERCLA
authorities (or both) is most appropriate
for the accomplishment of cleanup at the
site. In the context of federal facility
cleanups, this decision, and the cleanup
plan in general, would be discussed in
the Interagency Agreement (IAG) for the
facility.
  Second, EPA is deleting a sentence
from § 300.425(b)(2) that reads:
"Responsible parties shall pay for or
implement response actions to the
fullest extent practicable."  EPA
reiterates that it is EPA policy for
responsible parties  to pay for or
implement response actions to the
maximum extent practicable. EPA
believes, however, that this policy is
more appropriately stated in the
preamble.
   In addition, proposed § 300.425(c)(2) is
revised to add the phrase "(not
including Indian tribes)" in order to be^
 consistent with the reference to "state"
in CERCLA section 105(a)(8)(B).
   Consistent with the revisions to
 § 300.425, EPA is also revising the
 proposed definition of National
 Priorities List in § 300.5 to  clarify that
 EPA may allow actions other than Fund-
 financed actions under CERCLA to be
 conducted at NPL sites.
   Final rule: 1. The proposed definition
 in § 300.5 is  revised as follows:
   "National Priorities List" (NPL] means the
 list, compiled by EPA pursuant to CERCLA
 section 105, of uncontrolled hazardous
 substance releases in the United States that
 are priorities  for long-term evaluation and
 response.

    2. Proposed § 300.425(b) is revised as
 follows:
    (b] National Priorities List. The NPL is the
 list of priority releases for long-term
 evaluation and remedial response.
    (1) Only those releases included on the
 NPL shall be considered eligible for Fund-
 financed remedial action. Removal actions
 (including remedial planning activities, RI/
 FSs and other actions taken pursuant to
 CERCLA section 104(b)) are not limited to
 NPL sites.
    (2) Inclusion of a release on the NPL does
 not imply that monies will be expended, nor
  does the rank of a release on the NPL
  establish the precise priorities for the
  allocation of Fund resources. EPA may also
  pursue other appropriate authorities to
  remedy the release,  including enforcement
  actions under CERCLA and other laws. A
  site's rank on the NPL serves, along with
  other factors, including enforcement actions,
  as a basis to guide the allocation of Fund
  resources among releases.

    3. The first sentence of proposed
   § 300.425(c)(2) is revised  as follows: "A
   state (not including Indian tribes) has

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            Federal Register  /  Vol. 55, No.  46 / Thursday,  March 8, 1990  / Rules  and  Regulations          35
designated a release as its highest
priority."
  Name: Section 300.425(d)(6).
Construction Completion category on
the National Priorities List.
  Proposed rule: EPA proposed to
establish a new "category" as part of
the NPL—the "Construction
Completion" category (see 53 FR 51415).
The category would consist of: (a) Sites
awaiting deletion, (b) sites awaiting
deletion but for which CERCLA section
121(c) requires reviews of the remedy no
less often than five years after initiation,
and (c) sites undergoing long-term
remedial actions (LTRAs). EPA believes
the new category would communicate
more clearly to the public the status of
cleanup progress among sites on the
National Priorities List (NPL).
  EPA would shift sites into the
Construction Completion category only
following approval of interim or final
Close Out Reports. EPA would approve
the Reports only after remedies have
been implemented and are operating
properly. Approval of an interim Close
Out Report indicates that construction
of the remedy is complete, and that it is
operating properly, but that the remedy
must operate for a period of time before
achieving cleanup levels specified in the
Record of Decision (ROD) for the site.
Approval of a final (including amended)
Close Out Report indicates that the
remedy has achieved protectiveness
levels specified in the ROD(s), and that
all remedial actions are complete. The
proposal also indicates that EPA
believes that sites requiring five-year
review under § 300.430(f)(3)(v)
(renumbered as final
§ 300.430(f)(5)(iii)(C)) may, when
appropriate, be deleted from the NPL.
  Response to comments: All
commenters on this policy
recommended adoption of the proposal
to recategorize sites. One commenter
disagreed with EPA's name for the new
category, staling that construction at
some sites in the category would not be
complete. EPA disagrees with this
interpretation; as explained above, for
both LTRA sites and sites awaiting
deletion, construction of the remedy
must be complete and operating
properly before it may be placed in this
new category. Another commenter
interpreted EPA's proposal to mean that
it would create a new status code on the
NPL, rather than a new category, or sub-
section. EPA believes a distinct category
more clearly provides remedial progress
information to the public. EPA has found
this to be true with regard to federal
facility sites, which have been placed in
a separate category of the NPL. Thus,
the idea of categorizing sites on the NPL
is not a new one. Indeed, the 1985 NCP
specifically afforded EPA the discretion
to "re-categorize" certain types of sites
(see 40 CFR 300.66(c)(7)(1985)). EPA is
specifically acknowledging this
discretion in final § 300.425(d)(6).
  The commenter stated that EPA
should seek state concurrence before
placing a site under the new status. EPA
disagrees that it should seek formal
state concurrence to recategorize sites.
Recategorization is a mechanical
process and does not have regulatory
significance; it is merely a better method
of communicating site status to the
public. Moreover, EPA will recategorize
sites only on the basis of approved
interim or final Close Out Reports, and
states will continue to be involved in
remedy inspections and review or
preparation of the reports. EPA will
obtain state concurrence and solicit
public comments before deleting sites
from the NPL, pursuant to § 300.425(e).
  Another commenter supported the
concept of recategorizing sites,
particularly those at which only
operation and maintenance remains to
be conducted. However, the commenter
also states that such sites could
appropriately be deleted entirely from
the NPL. A different commenter
suggested that the Construction
Completion category should exclude
sites requiring only operation and
maintenance and that such sites should
be deleted from the NPL. EPA intends
that a site requiring only operation and
maintenance at the time of construction
completion be recategorized as a
temporary measure until the process  of
reviewing the site for possible deletion
from the NPL has been completed.
  One commenter stated that proposed
§ 300.430(f)(3)(v) is unclear regarding
whether EPA would conduct five-year
reviews at sites in certain phases of
response, or having certain status vis-a-
vis the NPL, i.e., sites still on the NPL,
deleted sites, and sites where LTRAs
are underway. The commenter went  on
to state that, if a five-year review
indicates that additional action is
required at a site that has been deleted
from the NPL, EPA must clarify under
what authority the action is to be
conducted.
  EPA will conduct five-year reviews
for appropriate sites after initiation of
the remedial action. Thus, reviews may
be conducted during phases of the
remedial action, during LTRA status,
and, where appropriate, after a site has
been deleted from the NPL. EPA
continues to develop its policy on five-
year reviews, and plans to issue further
guidance on these issues. EPA has
discretionary authority to take further
action at a deleted site if a review
indicates that the remedy is no longer
protective. CERCLA section 105(e)
states that EPA may restore the site to
the NPL without re-applying the Hazard
Ranking System (HRS), and CERCLA
section 121(c) provides that EPA may
take or require action, if appropriate,
following a review. Section 300.425(e)(3)
again states this point, and further states
that all releases deleted from the NPL
are eligible for Fund-financed remedial
actions should future conditions warrant
such actions.
  Another commenter stated that "five-
year review" sites should be deleted
from the NPL rather than placed in the
Construction Completion category. In
response, at the time of proposal, EPA
announced its view that five-year
review sites may be considered "sites
awaiting deletion," i.e., deletion
candidates. Upon consideration of the
issue, EPA believes that it may generally
not be appropriate to delete any of these
sites before performing at least one
review after completion of the remedial
action. This is consistent with a
recommendation of the Administrator's
90-day study of the Superfund Program,
"A Management Review of the
Superfund Program," and with OSWER
policy.7
  This position reflects an EPA policy
decision that in most cases where
hazardous substances remain after the
completion of remedial action, it is
appropriate to act more slowly on
deleting the sites from the NPL,
consistent with the concern evidenced
by Congress in specifically mandating
review at least every five years at such
sites. This policy is also consistent with
the limited purpose of the NPL as an
informational list of sites at which
CERCLA attention is appropriate (53 FR
•at 51415-16); the continued inclusion of
the site on the NPL does not mean that
response action will be taken at the site.
See 48 FR 40658, 40659 (Sept. 8,1983)
(quoting CERCLA legislative history).
  This is not inconsistent with the long-
standing provision on deletion in the
1985 NCP, which provides that "sites
  7 See "Performance of Five-Year Reviews and
 Their Relationship to the Deletion of Sites from the
 National Priorities List (NPL) (Superfund
 Management Review: Recommendation No. 2),
 Memorandum from Jonathan Z. Cannon, Acting
 Assistant Administrator, OSWER, to Regional
 Administrators (October 30,1989); and "Update to
 the 'Procedures for Completion and Deletion of
 National Priorities List Sites'—Guidance Document
 Regarding the Performance of Five-Year Reviews
 (Superfund Management Review: Recommendation
 No. 2)," Memorandum from Henry L. Longest II,
 Director, Office of Emergency and Remedial
 Response, to Regional Waste Management Division
 Directors (OSWER Directive No. 9320.2-3B,
 December 29,1989).

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36	Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
may be deleted from or recategorized on
the NPL where no further response is
appropriate." 40 CFR 300.66(c)(7)(1985)
(emphasis added). Thus even if no
further action is planned at a five-year
review site, recategorization is as
appropriate a means of recognizing that
status as is deletion. Further, deletion
will be considered as part of the review.
  EPA also does not view this policy for
five-year review sites as inconsistent
with EPA policy on deletions. The
criteria for deletion in § 300.425(e)
provide that "releases may be deleted
from * * * the NPL where no further
response is appropriate," thereby
providing considerable flexibility to the
Administrator. Further, the rule provides
that EPA shall not delete a site from the
NPL until the state in which the release
was located has concurred, and the
public has been afforded an opportunity
to comment on the proposed deletion.
Thus, the decision to delete is not an
automatic one by EPA, but rather is
decided as part of a formal public
process. It is similarly important to note
that a "site awaiting deletion" in the
new Construction Completion category
will not necessarily be deleted
automatically upon recategorization.
  One commenter stated that the  first
five-year review should not occur until
five years after the operation and
maintenance phase of the response
action is complete. EPA disagrees with
this comment; some sites will require
operation and maintenance indefinitely,
and thus adoption of such an approach
would result in no five-year review.
Further, CERCLA section 121(c) calls for
reviews within five years of the
"initiation"—not completion—of the
remedial action. EPA is currently
developing a policy regarding timing and
conduct of five-year reviews.
  Another commenter, though strongly
favoring the creation of a new NPL
category, recommended that EPA create
two new categories: "remedy in long-
term operation and maintenance", and
"sites awaiting delisting". The
commenter asserted that the public
would understand such terms more
easily than "Construction Completion".
EPA disagrees with this comment
because the phrase "long-term operation
and maintenance" may cause more
confusion for the public. EPA believes
the commenter inadvertently confused
two conceptsi "operation and
maintenance" and "LTRA." Many NPL
sites will require operation and
maintenance following deletion from the
NPL in order to maintain the
protectiveness of the remedy [e.g.
cutting grass or maintaining monitoring
wells), even though specified cleanup
standards have been achieved and
criteria for deletion have been met.
  An LTRA, on the other hand, is an
ongoing remedial action which has not
yet achieved the cleanup standards in
the ROD. It too may require operation
and maintenance after achieving these
standards, and after deletion of the  site
from the NPL. EPA will place an LTRA
site in the Construction Completion
category based on approval of an
interim Close Out Report. EPA will
finalize or amend the report when the
remedy has achieved cleanup levels
specified in the ROD(s). The LTRA will
then be categorized on the NPL as either
a site awaiting deletion or a five-year
review site.
  To minimize public confusion and
administrative burden, EPA will create
at present only one new category.
However, EPA plans to denote in the
category whether a site is: (a) An LTRA,
(b)  a site awaiting deletion,  or (c) a
"five-year review"  site awaiting review
and/or deletion. (Note that LTRA sites
may be placed in the five-year review
category upon attainment of the final
remediation goals.)
  Final rule: Proposed § 300.425 is
revised as follows:
  1. A new section has been added to
the final rule, § 300.425(d)(6), to reflect
EPA's long-standing discretion to
establish categories of sites on the NPL:
"Releases may be categorized on the
NPL when deemed appropriate by EPA."
  2. In § 300.425(e)(2), the timeframe for
state review of notices of intent to
delete has been changed to 30 working
'days (see preamble to § 300.515(h)(3),
"State review of EPA-lead documents)."
Section 300.430. Remedial Investigation/
Feasibility Study and Selection of
Remedy
  Introduction. Today EPA is
promulgating revisions to the remedial
investigation (RI)/feasibility study (FS)
and selection of remedy sections of the
1985 NCP. While the framework of this
portion of the regulation remains largely
as proposed on December 21,1988,
significant changes have been made to
respond to comments received and to
articulate more clearly the remedy
selection goal, expectations and process
EPA intends to employ in implementing
the Superfund program.
  The remedy selection process
promulgated today is founded on
CERCLA's overarching mandate to
protect human health and the
environment. This  approach emphasizes
solutions that can ensure reliable
protection over time. Today's rule
promotes the aggressive use of
treatment technologies to achieve
reliable remedies while acknowledging
the practical limitations on the use of
treatment.
  In this approach, EPA seeks to
encompass the many statutory
mandates while emphasizing the
statutory preference for permanent
solutions and use of treatment
technologies. The approach is tempered
by practicability to ensure that the
remedies selected are appropriate and
that the program responds to the threats
posed by the worst toxic waste sites
across the nation. Today's requirements
for selecting remedies further provide a
uniform framework to promote
consistency in decision-making.
  Today's regulation establishes a
process that allows consideration and
balancing of site-specific factors in
remedy selection. EPA has used this
type of decision-making process to
select CERCLA remedial actions since
the inception of the Superfund program.
Revisions contained in today's rule
modify the approach by incorporating
the new requirements of the 1986
amendments to CERCLA into existing
procedures. This approach relies on a
process that examines site
characteristics and alternative
approaches for remediating site
problems. This process evaluates
remedial alternatives using nine criteria
which are based on CERCLA's
mandates to determine advantages and
disadvantages of the alternatives, thus
identifying site-specific trade-offs
between  options. These trade-offs are.
balanced in a risk management
judgment as to which alternative
provides  the most appropriate solution
for the site problem.
  In response to comments requesting
further clarification and structure in the
remedy selection process, EPA has .
made changes to provide better
guidance on the types of remedies that
EPA expects to result from the process;
to add more structure to the process by
specifying the functional categories of
the nine criteria in the rule; and to
indicate which criteria are to be
emphasized in the balancing process.
EPA believes this process ensures the
selection of remedial actions that fulfill
statutory requirements to protect human
health and the environment,' comply
with ARARs, be cost-effective, and
utilize permanent solutions and
alternative treatment technologies or
resource  recovery technologies to the
maximum extent practicable. Further,
this process considers the full range of
factors pertinent to remedy selection
and provides the flexibility necessary
and appropriate to ensure that remedial
actions selected are sensible, reliable
solutions for identified site problems.

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            Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
                                                                          37"
  The approach promulgated in today's
rule was supported by numerous
commenters. Several expressed the view
that alternate remedy selection methods
presented in the proposal were
inappropriate or inferior to the
promulgated approach. Some
commenters noted that the promulgated
approach includes important criteria
that the other approaches do not.
  Two distinct groups of commenters
who have sharply contrasting views on
the goal of the Superfund program
opposed the proposed approach that is
promulgated today. One group of
commenters believes EPA should
establish a remedy selection process
that adopts as its goal full site
restoration and treatment of all material
to the extent technically feasible. This
approach would limit consideration of
cost to the selection of the less
expensive of comparably effective
treatment technologies. Under this
approach, methods of protection that
rely on control of exposure (i.e.,
engineering controls such as capping or
other containment systems and
institutional controls) could only be
used when treatment was technically
infeasible. Several of these commenters
expressed the view that remedy
selection should be more structured and
supported either the sequential decision-
making approach or the  point of
departure strategy for remedy selection
presented in the  proposal.
   The  other group of commenters
critical of the proposed approach
believes the Superfund program should
seek to achieve protection primarily by
controlling exposure to current risks
through use of engineering and
institutional controls. Treatment would
be used only if other controls are not
expected to be reliable or greater
protection can be achieved through
treatment without a significant increase
in cost. These commenters generally
supported the use of a cost-effectiveness
screen in site-specific balancing or the
site stabilization strategy for  remedy
selection presented in the proposal.
   The approach EPA promulgates today
sets a course for the Superfund program
between the two ends of the spectrum
reflected in these comments. EPA is
establishing as its goal remedial actions
that protect human health and the
environment, that maintain protection
over time, and that minimize  untreated
waste.
   This goal reflects CERCLA's
preference for achieving protection
through the use of treatment
technologies that destroy or reduce the
inherent hazards posed by wastes and
result in remedies that are highly
 reliable over time. The purpose of
treatment in the Superfund program is to
significantly reduce the toxicity and/or
mobility of the contaminants posing a
significant threat (i.e., "contaminants of
concern") wherever practicable to
reduce the need for long-term
management of hazardous material. EPA
will seek to reduce hazards (i.e., toxicity
and/or mobility) to levels that ensure
that contaminated material remaining
on-site can be reliably controlled over
time through engineering and/or
institutional controls.
  Further, the Superfund program also
uses as a guideline for effective
treatment the range of 90 to 99 percent
reduction in the concentration or
mobility of contaminants of concern (see
preamble discussion  below on
"reduction of toxicity, mobility or
volume" under § 300.430(e)(9)). Although
it is most important that treatment
technologies achieve the remediation
goals developed specifically  for each
site (which may be greater or less than
the treatment guidelines), EPA believes
that, in general, treatment technologies
or treatment trains that cannot achieve
this level of performance on  a consistent
basis are not sufficiently effective and
generally will not be  appropriate. EPA
believes this 90 to 99 percent reduction
treatment guideline allows for the use of
an array of technologies and will not
preclude the introduction of innovative
technologies into the range of effective
technologies. EPA believes the remedy
selection process should encourage
diversification of the range of treatment
technologies available for addressing
hazardous substances so that the
program continues to find more
effective, safer, and less costly ways of
reducing the hazards posed by the
various and often complex materials
encountered at Superfund sites.
   Along with the program goal, EPA is
establishing expectations regarding the
extent to which treatment is likely to be
practicable for certain types of site
situations and problems frequently
encountered by the Superfund  program.
These expectations indicate that EPA
intends to place priority on treating
materials that pose the principal threats
at a given site. The expectations also
acknowledge that certain technological,
economic and implementation factors
may make treatment impracticable for
certain types of site problems.
Experience  has shown that in such
situations, remedies  that rely on control
of exposure through  engineering and/or
institutional controls to provide
protection generally  will be  appropriate.
   The goal and expectations should be
considered when making site-specific
 determinations of the maximum extent
to which permanent  solutions and
treatment can be practicably utilized in
a cost-effective manner. Another
important part of this framework is the
range of alternatives EPA will consider
as possible cleanup options. This range
reflects the principle that protection of
human health and the environment can
be achieved through a variety of
methods, including treatment,
engineering and/or institutional controls
and through combinations of such
methods. Today's rule reflects the
statutory preference for achieving
protection of human health and the
environment through treatment by
emphasizing the development of
alternatives that employ treatment as
their principal element.
  This framework for developing
alternatives is one of the major changes
to the 1985 NCP which called for the
development of alternatives that do not
attain, attain, and exceed ARARs, as
well as an off-site and no action
alternative. The 1985 framework was
premised on the implicit assumptions
that alternatives would share the same
ARARs and that the ability to meet or
exceed those requirements
corresponded to different levels of
protection. Program experience has
shown that while alternatives may share
chemical- and location-specific ARARs,
generally each alternative will have a
unique set of action-specific
requirements. Additionally, it is now
clear that ARARs do not by themselves
necessarily define protectiveness. First,
ARARs do not exist for every
contaminant, location, or waste
management activity that may be
encountered or undertaken at a
CERCLA site. Second, in those
circumstances where multiple
contaminants are present, the
cumulative risks posed by the potential
additivity of the constituents may
require cleanup levels for individual-
contaminants to be more stringent than
ARARs to ensure protection at the site.
Finally, determining whether a remedy
is protective of human health and the
environment also requires consideration
of the acceptability of any short-term or
cross-media impacts that may be posed
during implementation of a remedial
action.
   Another major revision to  the 1985
NCP promulgated today is the
establishment of nine criteria used for
the detailed analysis of alternatives that
serve as the basis for the remedy
selection decision. These nine criteria
encompass statutory requirements
 (specifically the long-term effectiveness
factors that must be assessed under
CERCLA section 121(b)(l)(A-G)),  and
include other technical and policy

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38
Federal Register / Vol. 55, No.  46 / Thursday, March 8, 1990 / Rules  and  Regulations
considerations that have proven to be
important for selecting among remedial
alternatives. The various criteria have
been categorized according to their
functions in the remedy selection
process as threshold, balancing and
modifying criteria. This designation
demonstrates that protection of human
health and the environment will not be
compromised by other factors, including
cost. Revisions also clarify that trade-
offs among alternatives with respect to
the long-term effectiveness and
permanence they afford and the
reductions in toxicity, mobility, or
volume they achieve through treatment
are the most important considerations in
the balancing step by which the remedy
is selected.
  Name: Section 300.430{a)(l). Program
goal, program management principles
and expectations.
  Proposed rule: The preamble to the
proposed rule described management
principles which EPA intends to apply to
the Superfund program and certain
expectations regarding the types of
remedies that EPA has found to be most
appropriate for different types of waste
(53 FR 51422). These expectations were
developed based on both the
preferences and mandates expressed in
CERCLA section 121 as well as EPA's
practical experience in trying to meet
those preferences and mandates. The
preamble declared EPA's intent to focus
available resources on selection of
protective remedies that provide
reliable, effective response over the
long-term. The expectations envision
treatment of the principal threats posed
by a site, with priority placed on
treating waste that is highly toxic, highly
mobile, or liquid; and containment of
waste contaminated at low levels, waste
technically infeasible to treat and large
volumes of waste.
  Also included hi the expectations was
the concept that contaminated ground
waters will be returned to their
beneficial uses wherever practicable,
within a timeframe that is reasonable
given the particular circumstances of the
site. The preamble explained that
institutional controls could be used, as
appropriate, to prevent exposures to
releases of hazardous substances during
remedy implementation and to
supplement engineering controls. The
preamble also stated that the use of
institutional controls should not
substitute for active response measures
as the sole remedy unless such active
measures are determined not to be
practicable.
   The preamble also described three
program management principles
developed from program experience to
                           promote the efficiency and effectiveness
                           of the remedial response process. The
                           preamble stated EPA's intent to balance
                           the desire of definitive site
                           characterization and alternatives
                           analysis with a bias for initiating
                           response actions necessary or
                           appropriate to eliminate, reduce or
                           control hazards posed by a  site as early
                           as possible. The preamble emphasized
                           the principle of streamlining, which EPA
                           would apply in managing the Superfund
                           program as a whole and in conducting
                           individual remedial action projects. The
                           preamble explained that the bias for
                           action and principle of streamlining may
                           appropriately be considered throughout
                           the life of a remedial project but begin to
                           be evaluated as site management
                           planning is initiated. Site  management
                           planning is a dynamic, ongoing and
                           informal strategic planning  effort that
                           generally starts as soon as sites are
                           proposed for inclusion on the NPL and
                           continues through the RI/FS and remedy
                           selection process and the remedial
                           design and remedial action phases, to
                           deletion from the NPL.
                             Response to comments: EPA has
                           placed the program goal,  expectations,
                           and management principles into the rule
                           in response to the strong  support these
                           principles received from commenters. By
                           including these in the rule, EPA believes
                           the regulation better articulates the
                           objectives  of the program. EPA also
                           believes that placing them in the rule
                           itself will ensure that the principles and
                           expectations, although not binding, will
                           remain a part of the codified rule and
                           will not merely be detached preamble
                           language. This will facilitate their use
                           and identification by implementing
                           officials and the public. Specific
                           comments  and changes to the rule are
                           discussed below.
                              1. Program goal. EPA has added a
                           statement of the national goal of the
                           remedy selection process to the final
                           regulation. The goal as expressed in
                           today's rule is to select remedies that
                           will be protective of human health and
                           the environment, that will maintain
                           protection over time and  that will
                           minimize untreated waste. Although
                           EPA received no comment specifically
                           addressing a national remedy selection
                           goal, comments on other  issues reflected
                           different interpretations of  statutory
                           mandates. EPA is articulating a goal in
                           order  to reflect the effort of the
                           Superfund program to select remedies
                           that are protective of human health and
                           the environment in the long-term and
                           minimize untreated waste. The concept
                           of this goal is to be maintained
                           throughout the remedy selection
                           process. The evaluation and remedy
selection performed using the nine
criteria determine the extent to which
this goal is satisfied and the extent to
which permanent solutions and
treatment are practicable.,
  2. Expectations. EPA has decided to
add to the final regulation the program
expectations which appeared only in the
preamble to the proposed rule. EPA
takes this action  in response to
numerous comments expressing strong
support for the principles underlying the
expectations and requesting EPA to
incorporate the expectations into the
regulation. EPA has placed the
expectations in the rule to inform the
public of the types of remedies that EPA
has achieved, and anticipates achieving,
for certain types  of sites. These
expectations are not, however, binding
requirements. Rather, the expectations
are intended to share collected
experience to guide those developing
cleanup options.  For example, EPA's
experience that highly mobile waste
generally requires treatment may help to
guide EPA to focus the detailed analysis
on treatment alternatives, as compared
to containment alternatives. In effect,
the expectations allow implementing
officials to profit from prior EPA
learning and, thereby avoid duplicative
or unnecessary efforts. However, the
fact that a proposed remedy may be
consistent'with the expectations does
not constitute sufficient grounds for the
selection of that remedial alternative.
All remedy selection decisions must be
based on an analysis using the nine
criteria.
  Today's rule also contains an
expectation on the use of innovative
technologies that EPA developed in
response to numerous comments calling
for increased emphasis on the
diversification of treatment technologies
used in site remediation. EPA supports
such diversification and expects that it
will generally be appropriate to
investigate remedial alternatives that
use innovative technologies when such
technology offers the potential for
comparable or superior treatment
performance or implementability, fewer
or lesser adverse impacts than other
available approaches, or lower costs for
similar levels of performance than
demonstrated technologies.
   Several commenters focused on the
need for flexibility and discretion in
complying with the various  mandates of
CERCLA. These  commenters supported
the expectations discussed by EPA in
the preamble to the proposed rule as
being consistent with these needs. EPA
received the greatest support for the
expectations concerning the use of
treatment technologies.

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            Federal Register / Vol. 55, No.  46 / Thursday, March 8,  1990 / Rules and Regulations
                                                                          39
  EPA expects that treatment will be the
preferred means by which to address
the principal threats posed by a site,
wherever practicable. Principal threats
are characterized as waste that cannot
be reliably controlled in place, such as
liquids, highly mobile materials (e.g.,
solvents), and high concentrations of
toxic compounds (e.g., several orders of
magnitude above levels that allow for
unrestricted use and unlimited
exposure). Treatment is less likely to be
practicable when sites have large
volumes of low concentrations of
material, or when the waste is very
difficult to handle and treat (e.g., mixed
waste of widely varying composition).
Specific situations that may limit the use
of treatment include sites where: (1)
Treatment technologies are not
technically feasible or are not available
within a reasonable timeframe; (2) the
extraordinary size or complexity of a
site makes implementation of treatment
technologies impracticable; (3)
implementation of a treatment-based
remedy would result in greater overall
risk to human health and the
environment due to risks posed to
workers or the surrounding community
during implementation; or (4) severe
effects across environmental media
resulting from implementation would
occur.
   In addition, commenters agreed with
EPA that solutions often will involve a
combination of methods of providing
protection, including treatment and
engineering controls and institutional
controls. One commenter stated his
belief that these expectations embody
the extent to which treatment can
practicably be utilized in a cost-effective
manner on a site-specific basis.
   Some commenters concluded that the
presence of the expectations in the
regulation would enhance private party
participation in cleanups by relieving
the burden of persuading EPA in each
situation that such expectations, or
remedies consistent with the
expectations, are reasonable and in
compliance with CERCLA.
   Another commenter, while supporting
the expectations, expressed concern
that the regulation as proposed would
not adequately ensure that the
expectations would be achieved. EPA
has concluded that the expectations will
be of the most use if maintained as
general principles to assist in flexible,
site-specific decision-making. The
expectations may not be appropriate in
all cases. By stating "expectations"
rather than issuing strict rules, EPA
believes that critical flexibility can be
retained in the remedy selection
process.
  This commenter and one other urged
the addition of an expectation that
treatment residuals and contaminated
soils near health-based levels will be
controlled through containment rather
than treatment. The two commenters
recommended language expressing their
views. Although EPA generally concurs
with the suggested expectation, EPA has
not added this specific expectation to
the rule. EPA believes the expectations
in today's rule generally address the
types of waste mentioned by this
commenter.
  One commenter urged elimination of
the expectation that treatment is less
likely to be practicable where sites have
large volumes of low concentrations of
material, or where the waste is very
difficult to handle and treat. This
commenter argued that the expectations
combined with the program
management principle of streamlining
could be used to avoid studying
alternatives in detail and could provide
industries with significant incentives to
ignore the "overarching mandate" to
protect human health and the
environment. In response, EPA does not
intend or believe that the expectations
will be used to ignore practicable,
protective alternatives. In any event,
EPA is required by statute to select
protective remedies, which may include
those that involve treatment (preferred)
and those that do not.
   In essence, EPA interprets this
commenter's  concern to be that
remedies that do not employ treatment
cannot be protective of human health
and the environment. Today EPA
confirms the statement in the preamble
to the proposal that the overarching
mandate of the Superfund program is to
protect human health and the
environment from the current and
potential threats posed by uncontrolled
hazardous waste sites. This mandate
applies to all remedial actions and
cannot be waived. Consistent with the
program expectations, the mandate for
remedies that protect human health and
the environment can be fulfilled through
a variety or combination of means.
These means include the recycling or the
destruction, detoxification, or
immobilization of contaminants through
the application of treatment
technologies. Protection can also be
provided in some cases by controlling
exposure to contaminants through
engineering controls (such as
containment) and/or institutional
controls which prevent access to
contaminated areas. However,
consistent with CERCLA, treatment
remains the preferred method of
attaining protectiveness, wherever
practicable.
  3. Management principles. Many
commenters urged greater emphasis on
the program management principles of a
bias for action and streamlining that
appeared in the preamble to the
proposed rule. These commenters
generally believe application of these
principles would expedite cleanups and
maximize reductions in risks to human
health and the environment.
  Many commenters advocated
applying the streamlining principle to
screen unnecessary/duplicative/
impracticable remedial action
alternatives and to ensure that the detail
of the RI/FS for a site is commensurate
with the overall risk posed by the site.
Several commenters stated that an
application of the bias for action
principle would encourage early action
to prevent further migration of
contamination pending the completed
remedial action. Consistent with this
principle, a commenter suggested
revising the first sentence of § 300.430(a)
to state that the purpose of the remedial
action process is to reduce risk "as soon
as site data and information make it
possible to do so." EPA agrees with this
recommendation and has added this
language in a new second sentence in
§ 300.430(a).
  EPA has incorporated the program
management principles into today's rule
in response to the supportive comments
received. EPA believes placement of
these principles into today's rule
promotes making sites safer and cleaner
as soon as possible, controlling acute
threats, and addressing the worst
problems first.
   One commenter argued that EPA
lacks the requisite statutory authority to
promulgate principles such as a bias for
action. In response, EPA was given
considerable discretion in  CERCLA
section 104(a)(l) to decide  what action
to take in response to releases of
hazardous substances. In the NCP, EPA
has set out provisions for taking various
types of removal and remedial actions.
Thus, it is clearly within EPA's
discretion to decide how to balance the
need for prompt, early actions, against
the need for definitive site
characterization. The bias for prompt
action is wholly consistent with
Congress' concern that CERCLA sites be
addressed in an expeditious manner.
Indeed, in CERCLA section 121(d)(4)(A),
Congress specifically contemplated
early or interim actions, by allowing
EPA to waive ARARs in such cases.
Further, a bias for action is consistent
with EPA's long-standing policy of
responding by distinct operable units at

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40	Federal Register /  Vol. 55,  No. 46  /  Thursday, March 8, 1990  / Rules and Regulations
sites as appropriate, rather than waiting
to take one consolidated response
action. The 1985 NCP originally codified
this policy that remedial actions may be
staged through the use of operable units.
  EPA received comments urging the
Agency to strengthen its commitment to
early site action through expanded use
of removal actions at NPL sites without
foreclosing more extensive remedial
actions. In response, EPA encourages
the taking of early actions, under
removal or remedial authority, to abate
the immediate threat to human health
and the environment. Early actions
using remedial authorities are initiated
as operable units. In deciding between
using removal and remedial authorities,
the lead agency should consider the
following: (i) "The criteria and
requirements for taking removal actions
in today's rule; (ii) the statutory
limitations on removal actions and the
criteria for waiving those limitations;
(iii) the availability of resources; and
(iv) the urgency of the site problem.
  EPA expects to take early action at
sites where appropriate, and to
remediate sites in phases using operable
units as early actions to eliminate,
reduce or control the hazards posed by a
site or to expedite the completion of
total site cleanup. In deciding whether to
initiate early actions, EPA must balance
the desire to definitively characterize
site risks and analyze alternative
remedial approaches for addressing
those threats in great detail with the
desire to implement protective measures
quickly. Consistent with today's
management principles, EPA intends to
perform this balancing with a bias for
initiating response actions necessary or
appropriate to eliminate, reduce, or
control hazards posed by a site as early
as possible. EPA promotes the
responsiveness and efficiency of the
Superfund program by encouraging
action prior to or concurrent with
conduct of an RI/FS as information is
sufficient to support remedy selection.
These actions may be taken under
removal  or remedial authorities, as
appropriate.
   To implement an early action under
remedial authority, an operable unit for
which an interim action is appropriate is
identified. Data sufficient to  support the
interim action decision is extracted from
the ongoing RI/FS that is underway for
the site or final operable unit and an
appropriate set of alternatives is
evaluated. Few alternatives, and in
some cases perhaps only one, should be
developed for interim actions. A
completed baseline risk assessment
generally will not be available or
necessary to justify an interim action.
Qualitative risk information should be
organized that demonstrates that the
action is necessary to stabilize the site,
prevent further degradation, or achieve
significant risk reduction quickly.
Supporting data, including risk
information, and the alternatives
analysis can be documented in a
focused RI/FS. However, in cases where
the relevant data can be summarized
briefly and the alternatives are few and
straightforward, it may be adequate and
more appropriate to document this
supporting information in the proposed
plan that is issued for public comment.
This information should also be
summarized in the ROD. While the
documentation of interim action
decisions may be more streamlined than
for final actions, all public, state, and
natural resource trustee participation
procedures specified elsewhere in this
rule must be followed for such actions.
  Several commenters endorsed placing
the expectations and management
principles into the rule to avoid
collection of unnecessary data and
evaluation of too wide a range of
alternatives. Without providing a
specific example, a commenter noted
that many past Superfund cleanups have
experienced the opposite of a bias for
action by including unnecessary and
costly data collection and report
preparation without reaching
conclusions on the recommended site
remediation.
  EPA agrees that site-specific data
needs, the evaluation of alternatives and
'documentation of the selected remedy
should reflect the scope and complexity
of the site problems being addressed.
This principle, derived from the
streamlining principle discussed in the
preamble to the proposal, has been
incorporated into today's rule. The goal,
expectations, and management
principles incorporated into the  rule,
promote the tailoring of investigatory
actions to specific site needs.
  On a project-specific basis,
recommendations to ensure that the RI/
FS and remedy selection process is
conducted as effectively and efficiently
as possible include:
  1. Focusing the remedial analysis to
collect only additional data needed to
develop and evaluate alternatives and
to support design.
  2. Focusing the alternative
development and screening step to
identify an appropriate number  of
potentially effective and implementable
alternatives to be analyzed hi detail.
Typically, a limited number of
alternatives will be evaluated that are
focused to the scope of the response
action planned.
  3. Tailoring the level of detail of the
analysis of the nine evaluation criteria
(see below) to the scope and complexity
of the action. The analysis for an
operable unit may well be less rigorous
than that for a comprehensive remedial
action designed to address all site
problems.
  4. Tailoring selection and
documentation of the remedy based on
the limited scope or complexity of the
site problem and remedy.
  5. Accelerating contracting procedures
and collecting samples necessary for
remedial design during the public
comment period.
  Although the level of effort and extent
of analysis required for the RI/FS will
vary on a site-specific basis, the
procedures for remedy selection do not
vary by site. The lead agency is
responsible for meeting procedural
requirements, including support agency
participation, soliciting public comment,
developing an administrative record,
and preparing a record of decision.
  A more streamlined analysis during
an RI/FS may be particularly
appropriate in the following
circumstances:
  1. Site problems are straightforward
such that it would be inappropriate to
develop a full range of alternatives. For
example, site problems may only
involve a single group of chemicals that
can only be addressed in a limited
number of ways, or site characteristics
(e.g., fractured bedrock) may be  such
that available options are limited. To the
extent that obvious, straightforward
problems exist, they may create
opportunities to take  actions quickly
that will afford significant risk
reduction.
  2. The need for prompt action  to bring
the site under initial control outweighs
the need to examine all potentially
appropriate alternatives.
  3. ARARs, guidance, or program
precedent indicate a limited range of
appropriate response alternatives (e.g.,
PCB standards for contaminated soils,
Superfund Drum and Tank Guidance,
Best Demonstrated Available
Technology (BOAT) requirements).
  4. Many alternatives are clearly
impracticable for a site from the outset
due to severe implementability problems
or prohibitive costs (e.g., complete
treatment of an entire large municipal
landfill) and need not be studied in
detail.
  5. No further action or extremely
limited action will be required to ensure
protection of human health and the
environment over time. This situation
will most often occur where a removal
measure previously has been taken.

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            federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 /  Rules and Regulations	41
  Comments varied in their support for
the proposed formalization of the
operable unit concept. Some
commenters encouraged EPA to make
full use of the operable unit concept
because it could prevent the worsening
of some site problems. Other
commenters argued against the use of
operable units, stating that Congress
intended cleanups to focus on sites, not
on artificial subdivisions of sites.
  The 1985 NCP originally codified the
concept that remedial actions may be
staged through the use of operable units
(former NCP § 300.68(c)). Operable units
are discrete actions that comprise
incremental steps toward the final
remedy. Although EPA agrees that total
site remediation is the ultimate
objective, often it is necessary and
appropriate, particularly for complex
sites, to divide the site or site problems
for effective site management and early
action. Operable units may be actions
that completely address a geographical
portion of a site or a specific site
problem (e.g., drums and tanks,
contaminated ground water) or the
entire site. They may include interim
actions (e.g., pumping and treating of
ground water to retard plume migration)
that must be followed by subsequent
actions which fully address the scope of
the problem (e.g., final ground water
operable unit that defines the
remediation level and restoration
timeframe). Such operable units may be
taken in response to a pressing problem
that will worsen if not addressed, or
because there is an opportunity to
undertake a limited action that will
achieve significant risk reduction
quickly. Consistent with the bias for
action principle in today's rule, EPA will
implement remedial actions in phases as
appropriate using operable units  to
effectively manage site problems or
expedite the reduction of risk posed by
the site.
  One commenter perceived operable
units as a source of inefficiency. This
commenter criticized the extended
investigative activities associated with
the production of multiple and
overlapping RI/FSs on operable units for
a single site. The commenter advocated
completion of RI/FSs within eighteen
months, absent unusual conditions, and
implementing operable units only where
necessary to reduce an immediate risk
to human health and the environment.
This latter point was supported by
another commenter who feared that use
of an operable unit may provide a false
impression that the project is
progressing rapidly and may result in
greater cost due to duplication of work.
  In response, EPA has established as a
matter of policy the goal of completing
RI/FSs (i.e., through ROD signature)
generally within 24 months after
initiation. EPA agrees that duplication of
efforts on RI/FSs should be avoided.
However, EPA supports the operable
unit concept as an efficient method of
achieving safer and cleaner sites more
quickly while striving to implement total
site cleanups. Although the selection of
each operable unit must be supported
with sufficient site data and alternatives
analyses, EPA allows the ROD for the
operable unit to use data and analyses
collected from any RI/FS performed for
the site. No duplication of investigatory
or analytical efforts should occur when
selecting an operable unit for a site.
  Although supporting the operable unit
concept, one commenter argued that
unless EPA alleviates the administrative
burdens placed on an operable unit, no
bias for action will be realized. Another
commenter requested clarification of the
procedures required to support the
initiation of action prior to completion of
the RI/FS for the entire site. This
commenter cautioned EPA that
encouragement of early action could
result in actions being taken without a
proper understanding of the site.
According  to a different commenter,
application of the streamlining principle
could result in additional and
unnecessary costs to potential
responsible parties by accelerating
contracting procedures and collecting
samples necessary for remedial design
during the public comment period on the
RI/FS and  proposed plan. This
commenter feared that  the samples
taken before remedy selection may
prove irrelevant to the final selected
remedy.
   Similarly, some commenters requested
guidance on operable units and more
specificity  on implementing the
streamlining concept. Some commenters
suggested phased RI/FSs and limiting
the collection of data. One commenter
added that a properly implemented
streamlining approach could result in a
more focused RI/FS and would minimize
the collection of unnecessary data. This
commenter cautioned, however, that
poorly implemented streamlining could
result in insufficient data upon which to
base remedy selection, shortened time
frames for  settlement discussions, or
actions that are inconsistent with later
remedial actions. In addition, another
commenter noted that documentation
for the remedial action must be
sufficient to support a legal challenge.
   EPA acknowledges that the program
management principles in today's rule
are neither binding nor appropriate in
every case; they must be applied as
appropriate. The streamlining principle
supports data collection and
alternatives analyses commensurate
with the scope and complexity of the
site problem being addressed. The
principles focus site investigations and
alternatives analyses while maintaining
the requirement that sufficient
information be obtained for sound
decision-making. The ROD for an
interim remedy implemented as an
operable unit does not necessarily
require a separate RI/FS but instead can
summarize data collected to date that
supports that decision. This procedure
provides an adequate basis on which to
select an interim remedy and thus
safeguards against taking premature
action and avoids duplication among
RI/FSs performed for the site. For
guidance on documenting remedial
action decisions, including operable
units, see the Interim Final Guidance on
Preparing Superfund Decision
Documents (June 1989, OSWER
Directive 9355.3-02).
  Some commenters focused on interim
actions, implemented as operable units.
These commenters stressed the
important role of interim action operable
units in furthering the bias for action.
According  to these co.mmenters, EPA's
bias for action should be codified in the
regulation to communicate that interim
measures may be a legitimate
component of the remedy selection
process. Another commenter agreed that
greater emphasis is needed on the
importance of interim measures and
added that these interim measures
should be consistent with the remedial
solution likely to be selected.
  EPA encourages the implementation
of interim action operable units, as
appropriate, to prevent exposure  or
control risks posed by a site. Further
actions will be taken at the site, as
appropriate, to eliminate or reduce the
risks posed. EPA is adding to today's
rule a statement to clarify that operable
units, including interim action operable
units, must neither be inconsistent with
nor preclude implementation of the
expected final remedy.
  One commenter supported the use of
interim measures, when appropriate,
and argued that the implementation of
these measures should not be made
contingent on the selection of a final
remedy. According to this commenter,
the RI/FS process should consider the
interim action as one of the possible
remedial alternatives to achieve the
long-term site goals. Similarly, another
commenter stated that it strongly
believes that EPA should use its
available funds to achieve cleanup at

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42	Federal Register /  Vol. 55,  No. 46  /  Thursday, March 8, 1990 / Rules  and  Regulations
the greatest number of sites, thereby
saving resources and reducing overall
risks, rather than trying to attain
extremely low levels of risk at a smaller
number of sites.
  While the bias for action promotes
multiple actions of limited scale, the
program's ultimate goal continues to be
to implement final remedies at sites. The
scoping section of today's rule has been
amended to make clear that the lead
agency shall conduct strategic planning
to identify the optimal set and sequence
of actions necessary to address the site
problems. Such actions may include, as
appropriate, removal actions, interim
actions and other types of operable
units. Site management planning is a
dynamic, ongoing, and informal strategic
planning effort that generally starts as
soon as sites are proposed for inclusion
on the NPL and continues through the
RI/FS and remedy selection process and
the remedial design and remedial action
phases, to deletion from the NPL.
  This strategic planning activity is the
means by which the lead and support
agencies determine the types of actions
and/or analyses necessary or
appropriate at a given site and the
optimal timing of those actions. At the
RI/FS stage, this effort involves review
of existing site information,
consideration of current and potential
risks the site poses to human health and
the environment, an assessment of
future data needs, understanding of
inherent uncertainties in the process,
priorities among site problems and the
program as a whole, and prior program
experience. The focus of the strategic
planning is on taking action at the site
as early as site data and information
make it possible to do so.
  Final rule: Today's rule includes at
§ 300.430(a)(l) EPA's goal for remedial
actions to protect human health and the
environment, maintain that protection
over time, and minimize the amount of
untreated waste. In addition, the rule
also sets out expectations regarding the
extent to which treatment is likely to be
practicable for certain types of
situations and problems frequently
encountered by the Superfund program.
These expectations place priority on
treating materials that pose the principal
threats at a given site. The expectations
also acknowledge that certain
technological, economic, and
implementation factors make treatment
impracticable for certain types of site
problems and that other types of
controls may be most effective in these
situations. The bias for action and
streamlining principles are also printed
in the rule.
  Name: Section 300.430(a)(l). Use of
institutional controls.
  Proposed rule: Proposed
§ 300.43p(e)(3)(ii) directed that, as
appropriate, one or more alternatives
shall be developed that are based on
engineering controls, such as
containment that prevents  exposure to
hazardous substances, and, as
necessary, institutional controls, which
limit human activities at or near
facilities, to protect health  and
environment and assure continued
effectiveness of response. The preamble
to the proposed rule gave
"expectations" for remedies, explaining
that institutional controls may be used
as a supplement to engineering controls
over time but should not substitute for
active response measures as the sole
remedy unless active response measures
are not practicable, as determined based
on the balancing of the trade-offs among
alternatives that is conducted during the
selection of the remedy. [53 FR 51423).
  Response to comments: Several
commenters supported the proposal as
is, pointing out that there are situations
where institutional controls can be a
primary component of remedial action
either because treatment is not
practicable [as for large volumes of low-
toxicity waste) or because natural
attenuation will restore a resource in the
same time as active remediation.
  Several other commenters disagreed
with the proposal because  they believe
that institutional controls are not
reliable and are not permitted under the
statute as active, permanent remedies,
except under limited circumstances. One
commenter maintained that institutional
controls should never be used except as
an interim measure. Another commenter
felt that use of institutional controls as
the sole remedy could lead to
institutionalized pollution,  and should
only be used if state ARARs are not
violated or cleanup is not feasible.
Similarly, one commenter feared that
the proposal could lead to well
restriction areas or the like; the
commenter also asserted that only state
or local governments, not EPA, have the
authority to restrict water use.
  EPA agrees that institutional controls
should not substitute for more active
response measures that actually reduce,
minimize, or eliminate contamination
unless such measures are not
practicable, as determined by the
remedy selection criteria. Examples of
institutional controls, which generally
limit human activities at or near
facilities where hazardous substances,
pollutants, or contaminants exist or will
remain on-site, include land and
resource (e.g., water) use and deed
restrictions, well-drilling prohibitions,
building permits, and well use
advisories and deed notices. EPA
believes, however, that institutional
controls have a valid role in remediation
and are allowed under CERCLA (e.g.,
section 121(d)(2)(B)(ii) appears to
contemplate such controls). Institutional
controls are a necessary supplement
when some waste is left in place, as it is
in most response actions. Also, in some
circumstances where the balancing of
trade-offs among alternatives during the
selection of remedy process indicates no
practicable way to actively remediate a
site, institutional controls such as deed
restrictions or well-drilling prohibitions
are the only means available to provide
protection of human health. Where
institutional controls are used as the
sole remedy, special precautions must
be made to ensure that  the controls are
reliable. Further, recognizing that EPA
may not have the authority to implement
institutional controls at a site,
§ 300.510(c)(l) has been revised to
require states to assure that institutional
controls implemented as part of the
remedial action are in place, reliable
and will remain in place after initiation
of operation and maintenance (see
preamble to § 300.510(c)(l), "State
assurances").
  Several other commenters
recommended revisions to enlarge the
scope or availability of institutional
controls. These commenters wanted the
rule to allow institutional controls to be
used as a key component of a remedy
whenever they provide  similar
protection to treatment or other active
remedies at much lower cost. The
commenters suggested that such
controls may be the only cost-effective,
practicable remedy at small, isolated,
and stable sites, and that such controls
would be viable at many federal
facilities.
  EPA disagrees with suggested
revisions to the NCP that would expand
or encourage the use of institutional
controls in lieu of active remediation
measures. CERCLA section 121 states
Congress' preference for treatment and
permanent remedies, as opposed to
simply prevention of exposure through
legal controls. The evaluation of the
nine criteria (§ 300.430(f)(l)(ii)),
including cost and other factors,
determines the practicability of active
measures (i.e., treatment and
engineering controls) and the degree to
which institutional controls will be
included as part of the remedy.
  Several commenters suggested that
institutional controls be given a more
explicit role in the rule through
providing criteria for their use, explicitly

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            federal Register / Vol. 55,  No. 46  /  Thursday, March 8, 1990 / Rules and Regulations	43
allowing for their use in interim actions,
or providing that remedies with
institutional controls be considered in
the detailed analysis. EPA believes that
the discussion of an expectation
concerning institutional controls in the
rule is the appropriate level of detail for
guidance in the NCP. Additional, more
specific guidance may be developed
later, if necessary.
  Final rule: EPA has added an
expectation on use of institutional
controls in § 300.430(a)(l)(iii)(D). EPA is
promulgating § 300.430(e}(3)(ii) as
proposed.
  Name: Section 300.430(b). Scoping.
  Existing rule: The 1985 NGP
incorporated the scoping section within
the remedial investigation (RI) section of
the rule (§ 300.68[e)). Under that section,
scoping served as a basis for requesting
funding for removal actions and for the
remedial investigation and feasibility
study (RI/FS). The initial analysis
performed in scoping indicates the
extent to which the release or threat of
release may pose a threat to public
health or welfare or the environment,
indicates the types of removal measures
and/or remedial measures suitable to
abate the threat, and establishes
priorities for implementation. A
preliminary determination of ARARs
also is performed at this stage.
  Proposed rule: As proposed, the
purpose of scoping is to define more
specifically the type and extent of
investigative and analytical studies that
are appropriate for a given site. Scoping
entails formal planning for both the RI
and FS. The proposal separated the
scoping section from the RI section to
which it was attached under the 1985
NCP. EPA separated these sections in
the proposal to highlight the work plan
development process and the
development of other project  plans (such
as the sampling and analysis  plan, the
health and safety plan, and the
community relations plan) that occurs in
the scoping stage.
  During scoping, a conceptual
understanding of the site is established
by considering in a qualitative manner,
the sources of contamination, potential
pathways of exposure and potential
receptors. The identification of potential
ARARs and other criteria, advisories
and guidance  to be considered will
begin during scoping as lead and
support agencies initiate a dialog on
potential requirements. The main
objectives of scoping are to identify the
types of decisions  that need to be made,
to determine the types (including
quantity and quality) of data  needed,
and to design efficient studies to collect
these data/The scope and detail of the
investigative studies and alternative
development and analysis should be
tailored to the complexity of site
problems.
  Response to comments: One
commenter emphasized that aggressive
scoping should be encouraged to ensure
appropriate streamlining of the RI/FS.
Another urged EPA to highlight the
scoping process in the preamble or in
the rule itself. Another commenter
agreed with EPA's view of scoping as an
important first step in the RI/FS process,
but recommended development of
project plans less formal and lengthy
than those currently used in the
Superfund program.
  In response, EPA has incorporated
into today's rule the principles of
streamlining and a bias for action. These
general principles are to be considered
in scoping to assist in defining the
principal threats posed by the site and
to identify likely response scenarios and
potentially applicable technologies and
operable units. EPA has highlighted
scoping by separating it from  the text
describing the RI and by specifically
referencing scoping in the new goal and
expectations section of today's rule.
EPA believes the principles and
expectations promote the development
of documents, including project plans,
commensurate with the scope and
complexity of the site problems being
addressed.
  One commenter argued that the lead
agency or contractors scoping a project
should be directed to consult  with PRPs
or other informed private sector sources
about potentially applicable
technologies, and give this information
serious consideration. This commenter
suggested the following language be
added to the rule: "In scoping the
project, the lead agency shall solicit
relevant information from PRPs or other
private interests that may be  in a
position to provide substantive
assistance." This commenter  would then
add a statement requiring the lead
agency to consider such information.
  Although the suggested language has
not been incorporated into today's rule,
EPA encourages the early participation
of PRPs and the public during scoping
and throughout the RI/FS process. To
the extent PRPs are known to the lead
agency during scoping and a dialog is
occurring among the parties, the PRPs
have the opportunity to participate in
the planning activities and suggest and
evaluate for themselves technologies
worthy of consideration for site
implementation. For example, during
scoping, PRPs can participate in a
"technical  advisory committee," which
gathers expertise on the site conditions
and provides substantive assistance to
the lead agency. In addition, the work
plan for a site begins the administrative
record, which is available for review by
the public, including PRPs. PRPs and the
public can also present information and
issues at public meetings. EPA believes
it would be inappropriate to establish in
the NCP an absolute requirement that
the lead agency solicit and consider
information provided by PRPs. The lead
agency must retain the discretion to
determine the scope and quality of
information to be collected and
evaluated.
  Several commenters stressed the
importance of early coordination with
natural resource trustees, noting that
valuable technical assistance  can be
obtained through such communication.
One commenter offered the opinion that
it would be beneficial and cost-effective
if EPA and the natural resource trustees
worked together on the design of the RI/
FS sampling and analysis plan. To this
end, the commenter suggested that
§ 300.430 (b)(5) and (b)(6) of the
proposed rule be reversed, so  that
notification comes before the
development of the plans.  Some
commenters urged coordination of
natural resource damage assessments
and response actions, arguing that
significant funds may be saved if
opportunities to analyze and assess
natural resources are not lost  during
early study and cleanup activities.
   In response, EPA agrees that close
communication and coordination with
trustees for natural resources  affected or
potentially affected by the release of
hazardous substances from the site is
essential. (See subpart G for details on
the designation and role of natural
resource trustees.) EPA agrees with the
commenter's suggestion to reverse the
order of the sections numbered § 300.430
(b)(5) and (b)(6) in the proposal. Today's
rule  places the notification section (now
§ 300.430(b)(7)) before the section
providing for the development of certain
plans (now § 300.430(b)(8)). EPA agrees
that coordination with the trustees
during the conduct of the natural
resource damage assessments and
response actions is productive.
However, although a trustee may be
responsible for certain natural resources
affected or potentially affected by a
release, the lead agency retains the
responsibility for managing activities at
the site.
   Final rule: Proposed § 300.430(b) is
revised as follows:
   1.  EPA is clarifying certain aspects of
the scoping phase in the rule to better
reflect the objective of each activity.
Section 300.430(b) of the rule clarifies
the development of a conceptual

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44	Federal Register  / Vol. 55, No. 46 / Thursday. March 8,  1990 / Rules and Regulations
understanding of the site, the
Identification of operable units, the
identification of data quality objectives,
and the development of the field
sampling plan and quality assurance
project plan. In addition, the elements of
the scoping phase have been reordered
to better reflect that the timing of
coordination with natural resource
trustees may influence the development
of sampling plans. This clarification
does not reflect a change in the scope or
function of the scoping process.
  2. Proposed § 300.430{b)(6) is
renumbered as  § 300.430(b)(7) and is
revised as follows (see preamble
discussion on § 300.615 for explanation):
  If natural resources are or may be injured
by the release, ensure that state and federal
trustees of the affected natural resources
have been notified in order that the trustees
may initiate appropriate actions, including
those identified in subpart G of this part. The
lead agency shall seek to coordinate
necessary assessments, evaluations,
investigations, and planning with such state
and federal trustees.
  Name: Section 300.430(d). Remedial
investigation.
  Existing rule: The 1985 NCP states in
§ 300.G8(d) that an RI/FS shall be
undertaken, as appropriate, to determine
the nature and extent of the threat
presented by the release and to evaluate
proposed remedies. This includes
sampling, monitoring, exposure
assessment, and gathering data
sufficient to determine the necessity for
and proposed extent of the remedial
action.
  Section 300.68{e) of the 1985 NCP
specifically discusses characterization
of response actions during the RI. This
process consists of examining available
information to determine the type of
response that may be needed to remedy
the release. Initial analysis shall
indicate the extent to which the release
or threat of release may pose a threat to
human health or the environment,
indicate the types of removal measures
and/or remedial measures suitable to
abate the threat, and set priorities for
implementation of the measures. The
1985 NCP also includes an extensive list
of factors that should be considered in
characterizing and assessing the extent
to which the release poses a threat.
These factors are also used to support
the analysis and design of potential
response actions.
  Proposed rule: The proposed rule
separates the discussions, although not
the implementation, of the RI and FS,
and further separates project scoping
from the RI discussion to highlight the
workplan development process, which
addresses both the RI and FS. The
purpose of the RI, as stated in the
proposed NCP, is to collect data
necessary to adequately characterize
the site for the purpose of remedy
selection. Site characterization may be
conducted in one or more phases to
focus sampling efforts and increase the
efficiency of the investigation. Site
characterization activities are to be fully
integrated with the development and
evaluation of alternatives in the FS. To
characterize the site, the lead agency
conducts field investigations and a
baseline risk assessment, and initiates
treatability studies, as appropriate. The
proposed NCP included a list of factors
that are to be considered to characterize
and assess the extent to which the
release poses a threat to human health
or the environment or to support the
analysis and design of potential
response actions (53 FR 51504). This list
of factors, while less detailed than the
1985 NCP, is intended to be more
inclusive, depending on the site-specific
needs. The results of the baseline risk
assessment conducted as part of the RI
(which includes exposure assessment,
toxicity assessment, and risk
characterization components) help
establish acceptable exposure levels for
use in developing remedial alternatives
in the FS. Treatability studies are
initiated to assess the effectiveness of
treatment technologies that may be used
as remedial alternatives on site waste.
ARARs and, as appropriate, other
pertinent advisories, criteria, or
guidance related to the location of the
site or contaminants present are also to
be identified during the RI.
  Response to comments: Several
commenters addressed RI site
characterization issues. One commenter
suggested adding the review of state
files and the subpoena of company  files
during the RI to enhance site
characterization. In response, EPA notes
its commitment to the consideration of
the best and most appropriate
information available for site
characterization and will review state
files and require  the production of
company files as necessary for a site.
  Another commenter recommended an
alternative approach to RIs for sites
with ground-water contamination (the
"transport quantification"  approach).
Under the transport quantification
approach, environmental sampling
would be phased after the contaminant
transport flow paths and mechanisms
are evaluated. Transport quantification
analysis requires a thorough evaluation
of all data available at that time.
According to the commenter, the prior
quantification and predictive analysis of
transport mechanisms may allow more
realistic and accurate estimates of
actual and potential exposure
concentrations. Additionally, the
commenter voiced concern over
inappropriate investigative methods
used in drilling of ground-water
monitoring wells and soil gas
monitoring.
  In response, EPA recognizes the
merits of the suggestions and
observations made by the commenter.
However, EPA believes that technical
decisions on which model or
investigation technique is best suited to
a site is better left to guidance rather
than a rule. Of course, EPA may decide
to use a transport quantification
approach, even if it is not formally
included  in the NCP. EPA will consider
the merits of the approach
recommended by the commenter with
respect to the goals and limitations of
the program. EPA is considering
methods  to modify investigation of
ground-water aquifers to allow more
efficient remediation of ground water.
EPA is investigating vertical variations
in hydraulic conductivity, methods to
account for contaminant adsorption, and
methods  to utilize geophysical
techniques, in addition to specific
investigation of parameters that may
affect monitoring and pump/treatment
of ground water, such as screen length.
As new information becomes available,
it will be incorporated into the
implementation of the RI.
  In response to comments raised about
drilling of ground-water wells through
disposal areas, EPA acknowledges that
drilling through waste may not be
appropriate in some situations.
However, at certain sites, it may be
necessary to drill through disposal
areas. In  these cases, EPA is aware of
the potential hazards associated with
drilling through wastes and takes
precautions, such as casing the wells
and monitoring the well depths, to
ensure that the wells do not become a
conduit for the spread of contamination
to other aquifers. As to the comment
that soil gas monitoring is an
inappropriate investigative technique,
EPA states that EPA research
laboratories are currently studying soil
gases and their relation to ground-water
contamination. EPA will use the results
of these investigations to modify
existing practices in ground-water
investigations, if appropriate. Interested
members of the public may comment on
the use of such methods on a site-
specific basis during the public comment
period on the proposed plan, or they
may raise such issues at appropriate
times after the initiation of the
administrative record.
  Final rule: In order to clarify some
ambiguities in the proposed rule and to

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            Federal Register / Vol. 55, No.  46 / Thursday, March 8, 1990 / Rules  and Regulations
respond to the above-described and
other comments, EPA is making certain
minor changes to the wording in
§ 300.430(d) of the rule. Field
investigations to assess the nature and
extent to which these releases pose a
threat are emphasized in the
clarifications to the rule.
  Name: Section 300.430(d). Remedial
investigation—baseline risk assessment.
  Proposed rule: As part of the remedial
investigation, the baseline risk
assessment is initiated to determine
whether the contaminants of concern
identified at the site pose a current or
potential risk to human health and the
environment in the absence of any
remedial action. It provides  a basis for
determining whether remedial action is
necessary and the justification for
performing remedial actions. The
Superfund baseline risk assessment
process may be viewed as consisting of
an exposure assessment component and
a toxicity assessment component, the
results of which are combined to
develop an overall characterization of
risk. As indicated above, these
assessments are site-specific and
therefore may vary in the extent to
which qualitative  and quantitative
analyses are utilized, depending on the
complexity and particular circumstances
of the site, as well as the availability of
pertinent ARARs and other  criteria,
advisories or guidance.
  During risk characterization,
chemical-specific  toxicity information,
combined with quantitative and
qualitative information from the
exposure assessment,  is compared to
measured levels of contaminant
exposure levels and to levels predicted
through environmental fate  and
transport modeling. These comparisons
determine whether concentrations of
contaminants at or near the site are
affecting or could potentially affect
human health or the environment.
Results of this analysis are presented
with all critical assumptions and
uncertainties so that significant risks
can be identified.
  Response to comments: One
commenter requested clarification on
the purpose of risk assessment in the
Superfund program, especially the
baseline risk assessment. EPA responds
that the purpose of risk assessment in
the Superfund program is to provide  a
framework for developing risk
information necessary to assist
decision-making at remedial sites. Risk
assessment provides a consistent
process for evaluating and documenting
threats to human health and the
environment posed by'hazardous
material at sites. One  specific objective
of the risk assessment is to provide an
analysis of baseline risk (i.e., the risks
that exist if no remediation or
institutional controls are applied to a
site). The results of the baseline risk
assessment are used to determine
whether remediation is necessary, to
help provide justification for performing
remedial action, and to assist in
determining what exposure pathways
need to be remediated. The baseline risk
assessment has also superseded the
endangerment assessment, because the
two have the same goal, function, and
methodology.
  A second major objective of risk
assessment in Superfund is to use the
risks and exposure pathways developed
in the baseline risk assessment to target
chemical concentrations associated with
levels of risk that will be adequately
protective of human health for a
particular site (i.e., remediation goals). A
similar process is used to assess threats
to ecosystems and the environment and
to develop remediation goals based on
risk to the environment. The
identification of ARARs is not the
purpose of the baseline risk assessment,
as recommended by one commenter.
The identification of ARARs is a
separate part of the RI, because many
ARARs are not directly risk related.
Nevertheless, ARARs should be
addressed consistently in the baseline
risk assessment, the RI/FS, and remedy
selection.
  Some commenters supported EPA's
use of site-specific risk assessments
because, in their view, such assessments
more accurately reflect the variety of
site conditions. Several comments,
however, argued against use of a site-
specific risk assessment to evaluate
baseline risks and to establish
remediation goals. One commenter
stated that EPA should be applying
either ARARs or a generic set of
nationally applicable contaminant
concentration standards at all sites to
ensure consistent and uniform cleanup
decisions. This commenter also felt that
the use of site-specific risk assessments
was illegal and served only to confuse
the public about the basis for decisions
to protect human health and the
environment.
  EPA agrees with the commenter and
applies ARARs consistently at sites
nationwide, as appropriate to develop
remediation goals. However, ARARs
generally do not provide an adequate
basis on which to determine site risks,
which are complex and often cannot be
reduced to a single number. Further,
EPA notes that CERCLA requires that
all Superfund remedies be protective of
human health and the environment but
provides no guidance on how this
determination is to be made other than
to require the use of ARARs as
remediation goals, where these ARARs
are related to protectiveness. Under
CERCLA (as under other environmental
statutes), EPA relies heavily on
information concerning contaminant
toxicity and the potential for human
exposure to support its decisions
concerning "protectiveness." EPA's risk
assessment methods provide a
framework for considering site-specific
information in these areas in a logical
and organized way. EPA agrees that a
uniform process should be used to
develop risk assessments and cleanup
levels. EPA disagrees with the
commenter who advocates national
cleanup standards, however, because
the specific concentrations developed
for one site may not be appropriate for
another site because of the nature the
site, the waste, and the potential
exposures as noted above. If EPA does
identify situations in which uniform
national standards under CERCLA
appear to be feasible  and appropriate, it
may decide to develop such standards.
  The decision to perform site-specific
risk assessments is consistent with
CERCLA section 104(i)(6), which
requires the ATSDR to perform health
assessments for facilities on the
proposed and final NPL. As explained in
section 104(i)(6)(F), these health
assessments shall include assessments
of the "potential risk" to human health
posed by "individual  sites", based on
such site-specific factors as the "nature
and extent of contamination" and the
"existence of potential pathways of
human exposure."
  EPA recognizes the .logical advantages
of establishing consistent preliminary
remediation goals at sites where
contamination and exposure
considerations are similar. To the degree
possible, EPA makes  use of chemical-
specific ARARs in determining
remediation goals for Superfund sites.
However,  because these standards are
established on a national or statewide
basis, they may not adequately consider
the site-specific contamination or the
cumulative effect of the presence of
multiple chemicals or multiple exposure
pathways and, therefore, are not the
sole determinant of protectiveness.
  EPA does agree that a uniform
process should be used to develop risk
assessments and cleanup levels. To
improve program efficiency and
consistency, EPA is providing extensive
guidance for characterizing site-specific
risks and identifying preliminary
remediation goals to protect human
health and the environment in two

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            Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990  /  Rules and Regulations
guidance documents: "Risk Assessment
Guidance for Superfund: Human Health
Evaluation Manual, Part A" No.
9285.701 A, July 1989 (Interim Final) and
the "Risk Assessment Guidance for
Superfund Volume II: Environmental
Evaluation Manual," EPA/540/1-89/001,
March 1989 (Interim Final) hereafter
referred to as risk assessment guidance.
The "Human Health Evaluation
Manual" is a revision of the "Superfund
Public Health Evaluation Manual"
(October 1986) and also replaces the
"Endangerment Assessment
Handbook."
  EPA received many comments on the
methodology EPA uses to conduct site-
specific risk assessments. EPA conducts
an exposure assessment to identify the
magnitude of actual or potential human
or environmental exposures, the
frequency and duration of these
exposures, and the routes by which
receptors are exposed. This exposure
assessment includes an evaluation of
the likelihood of such exposures
occurring and provides the basis for the
development of acceptable exposure
levels.
  Some commenters wanted specific
clarification of the meaning of the
"reasonable maximum exposure
scenario" and how it is to be used. Some
said that the methodology results in
overstated and unrealistic risks and that
the procedures provide significantly
biased estimates of risks that are
several orders of magnitude greater than
actual risks. Several commenters argued
that not only did the risk assessment
methodology that Superfund has used in
the past  overestimate risk, but that the
proposal's use of a "reasonable
maximum exposure scenario" would
institutionalize this overestimation of
risk. Some stated that this
overestimation of risk was especially a
problem because both exposures and
the toxicity of chemicals are
overestimated. The combination of the
two in risk characterization leads to the
overstatement of risk. Other
commenters favored the use of the
reasonable maximum exposure scenario
and recommended its inclusion in the
rule. EPA will continue to use the
reasonable maximum exposure scenario
in risk assessment, although EPA does
not believe it necessary to include it as a
requirement in the rule.
   EPA responds to the requests for
 clarification of the reasonable maximum
 exposure scenario and the baseline risk
 assessment in the remainder of this
 section.  In the Superfund program,  the
 exposure assessment involves
 developing reasonable maximum
 estimates of exposure for both current
land use conditions and potential future
land use conditions at each site. The
exposure analysis for current land use
conditions is used to determine whether
a human health or environmental threat
may be posed by existing site
conditions. The analysis for potential
exposures under future land use
conditions is used to provide decision-
makers with an understanding of
exposures that may potentially occur in
the future. This analysis should include
a qualitative assessment of the
likelihood that the assumed future land
use will occur. The reasonable
maximum exposure estimates for future
uses of the site will provide the basis for
the development of protective exposure
levels.
  Several commenters stated that EPA's
exposure assessment methodology
overestimates risk, especially if worst-
case assumptions are used. EPA is
clarifying its policy of making exposure
assumptions that result in an overall
exposure estimate that is conservative
but within a realistic range of exposure.
Under this policy, EPA defines
"reasonable maximum" such that only
potential exposures that are likely to
occur will be included in the assessment
of exposures. The Superfund program
has always designed its remedies to be
protective of all individuals and
environmental receptors that may be
exposed at a site; consequently, EPA
believes it is important to include all
reasonably expected exposures in its
risk assessments. However, EPA does
agree with a commenter that
recommended against the use of
unrealistic exposure scenarios  and
assumptions. The reasonable maximum
exposure scenario is "reasonable"
because it is a product of factors, such
as concentration and exposure
frequency and duration, that are an
appropriate mix of values that reflect
averages and 95th percentile
distributions (see the "Risk Assessment
Guidance for Superfund: Human Health
Evaluation Manual").
   EPA does agree with one commenter
that the likelihood of the exposure
actually occurring should be considered
when deciding the appropriate level of
remediation, to the degree that this
likelihood can be determined. The risk
assessment guidance referenced above
is designed to focus the assessment on
more realistic exposures. EPA has
adopted these positions as policy and
has not revised the regulation. In
 addition, EPA agrees that risk
 assessments conducted for the
 Superfund should take into
 consideration background
 concentrations and conditions and
should identify these critical
assumptions and uncertainties in its risk
assessments.
  One commenter asked EPA to clarify
that both actual and potential risks will
be investigated in the baseline risk
assessment. When considering current
land use, the baseline risk assessment
should consider both actual risks due to
current conditions and potential risks
assuming no remedial action. Forh
example, these potential risks  could
arise by the migration of contaminants
through ground water to wells that are
currently uncontaminated. Future land
use, where it is different from current
use, is an evaluation of only potential
exposures since the future land use
addresses a potential situation. EPA is
clarifying the language in the rule to
indicate that both actual and potential
exposure routes and pathways should
be considered.
   In considering land use, Superfund
exposure assessments most often
classify land into one of three
categories: (1) Residential, (2)
commercial/industrial, and (3)
recreational. EPA also considers the
ecological use of the property  and, as
appropriate, agricultural use. In general,
the baseline risk assessment will look at
a future land use that is both
reasonable, from land use development
patterns, and may be associated with
the highest (most significant) risk, in
order to be protective. These
considerations will lead to the
assumption of residential use  as the
future land use in many cases.
Residential land use assumptions
generally result in the most conservative
exposure estimates. The assumption of
residential land use is not a requirement
of the program but rather is an
assumption that may be made, based on
conservative but realistic exposures, to
ensure that remedies that are  ultimately
selected for the site will be protective.
An assumption of future residential land
use may not be justifiable if the
probability that the site will support
residential use in the future is small.
Where the likely future land use is
unclear, risks assuming residential land
use can be compared to risks  associated
with other land uses, such as industrial,
to estimate the risk consequences if the
land is used for something other than
the expected future use.
   Some commenters recommended
performing the baseline risk assessment
assuming that institutional controls
were in place and effective at
preventing exposure. EPA disagrees that
the baseline risk assessment is the
proper place to take institutional
 controls into account. The role of the

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            Federal Register  / Vol. 55, No. 46 / Thursday, March 8,  1990 /  Rules and Regulations
baseline risk assessment is to address
the risk associated with a site in the
absence of any remedial action or
control, including institutional controls.
The baseline assessment is essentially
an evaluation of the no-action
alternative. Institutional controls, while
not actively cleaning up the
contamination at the site can control
exposure and, therefore, are considered
to be limited action alternatives. The
effectiveness of the institutional controls
in controlling risk may appropriately be
considered in evaluating the
effectiveness of a particular remedial
alternative, but not as part of the
baseline risk assessment.
  Some commenters stated that use of
EPA's toxicity values will lead to
overestimation of risk because they
incorporate uncertainty factors or
"margins of safety" that will bias the
estimate of risk.  EPA responds that the
toxicity assessment component of
Superfund risk assessment considers the
following: (1) The types of adverse
health or environmental effects
associated with  chemical exposures; (2)
the relationship between magnitude of
exposures and adverse effects; and (3)
related uncertainties such as the weight-
of-evidence for a particular chemical's
carcinogenicity in humans. EPA
recognizes that toxicity values do
incorporate "uncertainty factors.":
Because the toxicity information is
usually derived from studies of
industrial workers or test animals, the
size  of these uncertainty factors is
generally  determined by the  confidence
that effects seen in these studies will
manifest themselves in humans exposed
at Superfund sites. Larger uncertainty
factors are generally used to ensure that
protective levels are identified when
considering data with greater
uncertainty. It should be noted that
weights-of-evidence (and uncertainty
factors) are not directly related to
toxicity. For example, a high weight-of-
evidence indicates only a high
confidence that a chemical will cause
cancer in  humans. A high confidence in
a toxicity value reflects a consensus that
the value  is not likely to change.
  One commenter argued that EPA, or
other lead agency, must consider
information on toxicity that PRPs or
interested parties bring to their attention
during the public comment period. In  >
response, EPA will, of course, consider
such public comments submitted on
toxicity. However, it is important to note
that the Superfund risk assessment
process typically relies heavily on
existing toxicity information or profiles
that EPA has developed on specific
chemicals. EPA  believes that the use of
a consistent data base of toxicological
information is important in achieving
comparability among its risk
assessments. This information generally
includes estimated carcinogen
exposures that may be associated with
specific lifetime cancer risk probabilities
{risk-specific doses or RSDs), and
exposures to noncarcinogens that are
not likely to present appreciable risk of
significant adverse effects to humans
(including sensitive subgroups) over
lifetime exposures (reference doses or
RfDs). EPA has also developed toxicity
information for some ecosystem
receptors. Where no toxicological
information is available in EPA's data
base, then EPA routinely considers other
available information, including
information provided by PRPs or other
interested parties. Depending on the
evidence, however, EPA may feel it is
not appropriate to assess the toxicity of
specific chemicals quantitatively
because of the questions of reliability
and consistency in data development.
EPA may decide to address these
chemicals qualitatively.
  The results of the baseline risk
assessment are used to understand the
types of exposures and risks that may
result from Superfund sites. Key
assumptions and uncertainties in both
contaminant toxicity and human and
environmental exposure estimates must
be documented in the baseline risk
assessment, as well as the sources and
effects of uncertainties and assumptions
on the risk assessment results. Exposure
assumptions or other information, such
as additional toxicity information, may
be evaluated to determine whether the
risks are likely to have been under- or
overestimated. These key assumptions
and uncertainties must also be
considered in developing remediation
goals.
  Several commenters suggested that
the baseline risk assessment should be
used to determine whether particular
requirements were applicable or
relevant and appropriate for a site. EPA
believes that this determination must be
made independently from the risk
assessment, although EPA agrees that
the assumptions used in the risk
assessment should be consistent with
those used to determine what
requirements will be ARAR for a site.
Risk assessment and ARARs serve
different functions. The identification of
ARARs is used to identify remediation
goals and to indicate how remedial
alternatives are to be implemented. In
contrast, the risk assessment is a
technical analysis of the risks posed by
hazardous materials at a site.
Consequently, it would be inappropriate
for these two elements of the RI/FS to
be done together.
  Final rule: Proposed § 300.430(d){4) of
the rule has been clarified to indicate
that both current and potential
exposures and risks are to be
considered in the baseline risk
assessment. No other changes have
been made to the rule  on risk
assessment. The reference to advisories,
criteria or guidance in § 300.430(d)(3)
has been modified (see preamble section
below on TBCs).
  Name: Section 300.430(e). Feasibility
study.
  Existing rule: The 1985 NCP states in
§ 300.68(d) that a remedial
investigation/feasibility study (RI/FS)
shall, as appropriate, be undertaken to
determine the nature and extent of the
threat presented by the release and to
evaluate proposed remedies. Part of the
RI/FS may also involve assessing
whether the threat can be prevented or
minimized using source control
measures or whether additional actions
will be necessary because the
hazardous substances have migrated
from the area of their original location.
  The 1985 NCP discusses FS
development of alternatives in
§ 300.68(f), stating that to the extent it is
possible  and  appropriate, at least one
alternative should be developed in each
of the following categories:
(1) Treatment alternatives; (2)
alternatives that attain ARARs; (3)
alternatives that exceed ARARs; (4)
alternatives that do not attain ARARs;
and (5) a no-action alternative. The
alternatives should, as appropriate,
consider and integrate waste
minimization, destruction, and recycling.
  The alternatives developed under
§ 300.68(f) are subject to an initial
screening to narrow the list of potential
remedial actions for further detailed
analysis. The alternatives that remain
after the initial screening must undergo
a detailed analysis to  evaluate and
analyze each alternative against  a set of
specific criteria. The results of this
analysis provide the basis for
identifying the preferred alternative.
  As  specified in § 300.68(i), the
appropriate extent of remedy will be
determined by the lead agency's
selection of a cost-effective remedial
alternative that effectively mitigates and
minimizes threats to, and provides
adequate protection of, public health
and welfare and the environment. This
determination will require that a
remedy, except in certain specified
situations, attain or exceed federal
public health and environmental
ARARs. In selecting the appropriate

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48	Federal Register / Vol. 55, No. 46 / Thursday, March 8,  1990 / Rules and Regulations
remedy, the lead agency will consider
cost, technology, reliability,
administrative and other concerns, and
their relevant effects on public health
and welfare and the environment. If
there are no ARARs, the lead agency
will select the cost-effective alternative
that effectively mitigates and minimizes
threats, and provides adequate
protection to public health and welfare
and the environment.
  Proposed rule: The requirements of
SARA led to significant changes in the
feasibility study section of the 1985 NCP,
primarily in the range of alternatives
that are developed for consideration in
the FS and in the development of the
nine criteria, based on mandates and
factors to consider specified by the
statute, for analysis of the alternatives.
The proposed rule separates the
discussion of the FS from the RI. In
§ 300.430{e), the proposed NCP states
that the primary objective of the FS is to
ensure that appropriate remedial
alternatives are developed and
evaluated such that relevant information
concerning the waste management
options can be presented to a decision-
maker and an appropriate remedy
selected. The regulation requires the
development and evaluation of
alternatives to reflect the scope and
complexity of the remedial action under
consideration and the site problems
being addressed. During the FS,
alternatives are developed to protect
human health and the environment by
eliminating, reducing, and/or controlling
risks posed through each pathway by a
site. The number and type of
alternatives that are analyzed is
determined according to site-specific
circumstances.
  The first step in the FS process
involves developing remedial action
objectives for protecting human health
and the environment which should
specify contaminants and media of
concern, potential exposure pathways,
and preliminary remediation goals. The
preliminary remediation goals are
concentrations of contaminants for each
exposure route that are beh'eved to
provide adequate protection of human
health and the environment based on
preliminary site information. These
goals are also used to assist in setting
parameters for the purpose of evaluating
technologies  and developing remedial
alternatives. Because these preliminary
remediation goals typically are
formulated during project scoping or
concurrent with initial RI activities (i.e.,
prior to completion of the baseline risk
assessment), they are initially based on
readily available environmental or
health-based ARARs (e.g., maximum
contaminant levels (MCLs)), ambient
water quality criteria (WQC)) and other
criteria, advisories, or guidance (e.g.,
reference doses (RfDs)). As new
information and data are collected
during the RI, including the baseline risk
assessment, and as additional ARARs
are identified during the RI, these
preliminary remediation goals may be
modified as appropriate to ensure that
remedies comply with CERCLA's
mandate to be protective of human
health and the environment and comply
with ARARs.
  During the development and analysis
of alternatives, the risks associated with
potential alternatives, both during
implementation and following
completion of remedial action, are
assessed, based on the reasonable
maximum exposure assumptions and
any other controls necessary to ensure
that exposure levels are protective and
can be attained. These are generally
assessed for each exposure route unless
there are multiple exposure routes
where combined effects may have to be
considered. For all classes of chemicals,
EPA uses health-based ARARs to set
remediation goals, when they are
available. When health-based ARARs
are not available or are not sufficiently
protective due to multiple exposures or
multiple contaminants, EPA sets
remediation goals for noncarcinogenic
chemicals such  that exposures present
no appreciable risk of significant
adverse effects  to individuals, based on
comparison of exposures to the
concentration associated with reliable
toxicity information such as EPA's
reference doses. Similarly, when an
ARAR does not exist for carcinogens,
EPA selects remedies resulting in
cumulative risks that fall within a
proposed range of 10~4 to 10~7
incremental individual lifetime cancer
risk (revised in final rule to 10~4 to 10"6),
based on the use of reliable cancer
potency information such as  EPA's
cancer potency factors. In addition, EPA
will set remediation goals for ecological
and environmental effects based on
environmental ARARs, where they
exist, and levels based on site-specific
determination to be protective of the
environment.
  Once the remediation goals have been
established, potentially suitable
technologies, including innovative
technologies  are also identified,
evaluated, and assembled into
alternative remedial actions  that are
designed to meet the remediation goals
established according to the  principles
stated in the previous paragraph. The
proposed NCP directs that certain types
of alternatives must be developed, as
appropriate, for source control and
ground-water response actions, and
describes the  requirements for
developing innovative treatment
alternatives and no-action alternatives.
The short- and long-term aspects of
three criteria  (i.e., effectiveness,
implementability, cost), will, as
appropriate, guide the development and
screening of alternatives.
  Alternatives that remain after the
initial screening must undergo a detailed
analysis that  consists of an assessment
of individual alternatives against each
of the nine evaluation criteria. These
criteria are:
  (1) Overall  protection of human health
and the environment;
  (2) Compliance with ARARs;
  (3) Long-term effectiveness and
permanence;
  (4) Reduction of toxicity, mobility, or
volume;
  (5] Short-term effectiveness;
  (6) Implementability;
  (7) Cost;
  (8) State acceptance; and
  (9) Community acceptance.
  Response to comments: 1. Remedial
action objectives and remediation goals.
One commenter recommended that
remedial action objectives be
established in the RI rather than the FS
because the commenter feels they are
needed early in the process so that they
may be used  as part of the baseline risk
assessment. EPA agrees that remedial
action objectives are needed early in the
process. However, EPA believes that
putting the remediation goals as the first
step of the FS accomplishes this
objective and does not delay the
development of remediation goals
because the RI and FS are not sequential
but rather concurrent processes. In fact,
remediation objectives and goals  are
initially developed at the workplan
stage, prior to the commencement of RI/
FS activities.  In addition, the
remediation goals are not necessary for
the baseline risk assessment. Rather, the
results of the baseline risk assessment
are used to either confirm that the
preliminary remediation goals are
indeed protective or to lead to the
revision of the remediation goals in the
proposed plan.       .
  Another commenter suggested that
preliminary remediation goals be
reviewed when developing the remedial
action objectives. This comment reflects
widespread confusion about the
remedial action objectives and
remediation goals. Several commenters
asked for  clarification of these two
concepts.  The remedial action objectives
are the more  general description of what
the remedial  action will accomplish.

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            Federal Register / Vol. 55, No.  46 / Thursday, March 8, 1990 / Rules  and Regulations
                                                                         49
Remediation goals are a subset of
remedial action objectives and consist
of medium-specific or operable unit-
specific chemical concentrations that
are protective of human health and the
environment and serve as goals for the
remedial action. The remedial action
objectives aimed at protecting human
health and the environment should
specify: (1) The  contaminants of
concern, (2) exposure routes and
receptors,  and (3) an acceptable
contaminant level or range of levels for
each exposure medium (i.e., a
preliminary remediation goal). Remedial
action objectives include both a
contaminant level and an exposure
route recognizing that protectiveness
may be achieved by reducing exposure
as well as reducing contaminant levels.
  As noted above, the preliminary
remediation goals are the more specific
statements of the desired endpoint
concentrations or risk levels. Initially,
they are based on readily available
information,  such as chemical-specific
ARARs (e.g., MCLs, WQCs] or
concentrations associated with the
reference doses or cancer potency
factors. As the RI proceeds and
information from the baseline risk
assessment becomes available, the
preliminary goals may be modified due,
among other things, to consideration of
site-related exposure through multiple
exposure pathways or exposure to
multiple chemicals, either of which may
raise the cumulative risk from chemicals
of concern at the site out of the risk
range. The initial development of
preliminary remediation goals is not
intended to be a lengthy undertaking,
although remediation goals are revised
throughout the RI/FS process as
additional information becomes
available.
  The development of preliminary
remediation goals serves to focus the
development of alternatives on remedial
technologies that can achieve the
remedial goals,  thereby limiting the
number of alternatives to be considered
in the detailed analysis. This focusing is
one means of implementing the
program's expectation for streamlining
the remedial process. Information to
develop final remediation goals is
"developed as part of the RI/FS process.
Consequently, the use of preliminary
remediation goals does not preclude the
development and consideration or
selection of alternatives that attain other
risk levels. Final selection of the
appropriate level of risk is made based
on the balancing of criteria in the
remedy selection step of the process.
Language in  the regulation has been
revised to clarify the development of
remediation goals.
  One commenter felt the remediation
goals should be based only on ARARs
and that EPA has no authority to require
compliance with anything but ARARs,
although the commenter acknowledges
that other information may be necessary
when ARARs are not available. EPA
disagrees that it has no authority to
comply with anything but ARARs.
ARARs do not exist for all exposure
media  (e.g., certain types of
contaminated soil)  or for all chemicals,
and therefore, EPA must use other
information to set remediation goals that
will ensure protection of human health
and the environment as required by
statute. EPA intends that this will focus
on the  EPA-developed toxicity
information (cancer potency factors and
the reference doses for noncarcinogenic
effects). If neither ARARs nor EPA-
derived toxicology  information are
available, other information will be
used, as necessary, to determine what
levels are necessary to protect human
health and the environment (e.g., state
guidelines on what is protective for a
certain chemical).
  Where ARARs do not exist or where
the baseline risk assessment indicates
that cumulative risks—due to additive
or synergistic effects from multiple
contaminants or multiple exposure  •
pathways—make ARARs nonprotective,
EPA will modify preliminary
remediation goals,  as appropriate, to be
protective of human health and the
environment. For cumulative risks due
to noncarcinogens, EPA will set the
remediation goals at levels for
individual chemicals such that the
cumulative effects of exposure to
multiple chemicals  will not result in
adverse health effects. EPA is clarifying
the language in the rule in response to a
commenter to indicate that an
acceptable  exposure for noncarcinogens
is one to which human populations,
including sensitive  subgroups such as
pregnant women and children, may be
exposed without adverse effects during
a lifetime or a part  of a lifetime,
incorporating an adequate margin of
safety. The phrase  "part of a lifetime" is
added to clarify that protective levels
will be set for less than lifetime
exposures, as appropriate. In general,
acceptable  chemical concentrations are
lower for lifetime exposure than other
exposure durations.
  EPA will set remediation goals for
total risk due to carcinogens that
represent an excess upperbound lifetime
cancer risk to an individual to between
10~4to 1CT6 lifetime excess cancer risk.
A cancer risk of 10"6 will serve as the
point of departure for these remediation
goals. EPA is clarifying, based on a
recommendation from a commenter, that
all preliminary remediation goals will be
set so that they are protective for
sensitive subpopulations, such as
pregnant women and children.
Comments on the use of a cancer risk
range and a point of departure for the
establishment of remediation goals are
addressed in preamble sections below.
  Remedial action objectives and
remediation goals should be set for
appropriate environmental media, and
performance standards established for
selected engineering controls and
treatment systems including controls
implemented during the response
measure. While points of compliance for
attaining these remediation levels are
established on a  site-specific basis, as
supported by some commenters, there
are general policies for establishing
points of compliance. For ground water,
remediation levels should generally be
attained throughout the contaminated
plume, or at and  beyond the edge of the
waste management area when waste is
left in place. For  air, the selected levels
should be established for the maximum
exposed individual, considering
reasonably expected use of the site and
surrounding area. For surface waters,
the selected levels should be attained at
the point or points where the release
enters the surface waters. (See preamble
section on ARARs for further
information on points of compliance.)
  One commenter objected to the use of
the "reasonable maximum exposure
scenario" in the development of
remediation goals, as described in the
preamble to  the proposed rule. In
particular, the commenter objected to
the use of the reasonable maximum
exposure concept given the lack of
definition and criteria on which to apply
it. EPA believes that Superfund
remedies need to be protective of all
individuals exposed through likely
exposure pathways, not just large
populations, as suggested by another
commenter. To that end EPA developed
the concept of reasonable maximum
exposure, which  is designed to include
all exposures that can be reasonably
expected to occur, but does not focus on
worst-case exposure assumptions. EPA
has clarified the definitions and
discussion of the reasonable maximum
exposure in today's preamble discussion
of the baseline risk assessment.
  Another commenter expressed
concern that even though a risk
assessment shows a particular remedy
is protective, EPA will set remediation
goals at more stringent levels based on
policy, criteria, or guidelines (not

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50	Federal Register / Vol.  55.  No. 46  /  Thursday, March 8. 1990 / Rules  and Regulations
regulations]. EPA responds that it is the
goal of the Superfund program to select
remedies that protect human health and
the environment, maintain that
protection over time, and minimize
untreated waste. The risk assessment is
one factor in the determination of what
is protective. EPA does not arbitrarily
select remediation goals that exceed
levels determined to be protective.
  2. Development and screening of
alternatives. Regarding the development
of alternatives, several commenters
stated that there is no justification for
requiring an array of alternatives to be
developed in every situation.
Commenters were particularly
concerned about situations where
certain options were precluded by site
conditions (e.g., municipal landfills
where treatment of all site wastes is
impracticable). One commenter
suggested that § 300.430{e)(3)(ii) be
deleted, since, in the commenter1 s
opinion, there was no justification for
requiring a containment alternative to
be developed for every Superfund site,
even when the scoping phase indicated
that a range of treatment-based
remedies is appropriate. Another
commenter recommended specific
revisions to § 300.430(e) to clarify this
point.
  EPA agrees with the commenter that
focusing the development of alternatives
only on those that show promise in
achieving the goals of the Superfund
program is a significant means by which
the program can streamline the process
and achieve more rapid cleanup.
However, EPA feels that this flexibility
is already present in the rule which
repeatedly states that alternatives
should be developed, as appropriate, for
the particular situation at the site. This
means that if treatment is not
practicable for all wastes at the site,
then complete treatment need not be
included as an  alternative.
Alternatively, if it is clear that treatment
will be part of the remedy, alternatives
that rely solely on containment or
institutional controls and that do not
include treatment need not be
considered. This practice is consistent
with the program expectations
discussed above.
  Two commenters stated that the
proposed approach for development and
screening of alternatives is biased
against innovative technologies, since
there appears to be a strong tendency
for EPA to select remedies that have
been previously proven to be successful.
One commenter asserted that it was not
clear how EPA would evaluate
innovative technologies in the screening
analysis. EPA would like to clarify that
it does not intend to inhibit the
development of innovative technologies
in the development and screening of
alternatives. EPA has deleted the
requirement in the final rule that
innovative technologies must offer
"better" performance than proven
technologies. Instead, EPA has stated its
intent to consider those innovative
technologies that offer the potential for
comparable or superior performance or
implementability; fewer or lesser
adverse impacts than other available
approaches; or lower costs for similar
levels of performance than
demonstrated treatment technologies.
By providing for the consideration of
innovative technologies, EPA intends to
eliminate from consideration only those
innovative technologies that have little
potential for performing well at specific
sites.
  As part of the encouragement of
innovative technologies that EPA
expects to result from this provision,
EPA is emphasizing the need for
performing treatability studies earlier in
the remedial process. Because
innovative technologies may not have
been as thoroughly demonstrated,
treatability studies during the RI/FS
may be necessary to provide
information sufficient for an appropriate
evaluation of these technologies. The
goal of treatability studies is to establish
through the use of good science  and
engineering, the probable effectiveness
of innovative technologies. EPA has
issued guidance that further  encourages
the use of innovative treatment
technologies in "Advancing the  Use of
Treatment Technologies for Superfund
Remedies" (OSWER Directive 9355.0-
26).
  One commenter requested that
§ 300.430(e)(3) be revised to clarify that
off-site disposal in a secure facility
without treatment may be selected as a
partial or  complete remedy. The
commenter also addressed in detail one
particular alternative that the NCP and
guidance should suggest for
consideration and analysis (i.e., use of
the site, once remediated, as a solid
waste management unit). EPA agrees
with the commenter that off-site
disposal without treatment may be
selected as the remedy in appropriate
circumstances, such as where the site
has high volumes of low toxicity waste.
However, the statute clearly indicates
that this is the least preferred
alternative. EPA believes that this
comment most directly addresses the
remedy selection, not the feasibility
study, and has modified proposed
§ 300.430(f)(3)(iii) (§ 300.430(f)(l)(ii)(E) in
the final rule) to acknowledge that off-
site disposal without treatment can
potentially be an appropriate alternative
while recognizing the statutory bias
against it. As to the commenter's second
point, nothing in the NCP prohibits the
use of remediated sites as RCRA solid
waste management units, provided all
requirements under RCRA and other
applicable laws, including permitting
requirements, are met, and any CERCLA
off-site policy/rule requirements are
satisfied (OSWER Directive No. 9834.11
(November 13,1987); 40 CFR 300.440
(proposed)(53 FR 48218, November 29,
1988)).
  With reference to  the screening of
alternatives, several commenters
supported EPA's proposal to allow the
elimination of alternatives at the
screening stage on the basis of cost.
Some of these commenters suggested
that determination of cost-effectiveness
be made an explicit screening step,
noting that Congress requires that
remedies be cost-effective. They argued
that inadequate consideration of cost
will lead to inefficient use of the Fund
and may result in some sites not being
addressed. One commenter stated that
the inability to eliminate cost-ineffective
remedies early in the remedy selection
process results in a misallocation of
time,  effort, and funds.
  Other commenters opposed using cost
as a criterion during the preliminary
screening of alternatives. One
commenter argued that many
alternatives are rejected based on
inadequate cost data. Another
commenter stated that eliminating
remedial alternatives based on
consideration of cost before the ultimate
health-based standards or levels of
control are determined was
inappropriate and illegal.
  In response to comments received on
the role of cost in the development and
screening of alternatives, EPA has
clarified the role of cost in screening of
alternatives. Screening is to be
performed to eliminate from further
consideration those alternatives that are
not effective, not implementable, or
whose costs are grossly excessive for
the effectiveness they provide. This last
category would include those  situations
where cost is so excessive that a remedy
is virtually unimplementable and is,
therefore, impracticable to consider.
Specifically, when alternatives vary
significantly in their effectiveness, cost
may be considered in conjunction with
other factors to determine which
alternatives are inordinately costly for
the effectiveness they provide. For
example, where total treatment of a
large municipal landfill has been
considered initially as a remedial

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            Federal Register / Vol. 55, No. 46 / Thursday, March  8, 1990 / Rules and Regulations          51
           ^^^•^^^^••^^^^•^^^^^•••^^^^••••i^^Maai^^^^^^BMMi^MMa^^MaMM^M*-^"'"^ '.'                 	                    • •-»
alternative, this alternative will likely be
eliminated from further consideration
due to the large volume of material for
which treatment capacity is not
available and for which costs are
extremely high.
  The other situation where cost may
result in the elimination of an
alternative during screening is where
two or more alternatives are determined
to provide similar levels of effectiveness
and implementability by using a similar
method of treatment or engineering
control but their costs vary significantly.
In this case, cost can be used to
eliminate from further consideration the
more costly alternatives. For example, if
soil washing and bioremediation are
expected to be similarly effective, but
bioremediation is significantly more
costly, the bioremediation alternative
could be eliminated from further
consideration while the soil washing
option would be carried through to
detailed analysis.
  One commenter argued against
considering cost in screening because
the use of potentially inadequate cost
data available in this stage of the
remedial process may result in the
elimination of viable alternatives. EPA
responds that while cost data are
continuously being developed, at the
screening stage cost data of sufficient
quality are usually available to
determine whether the cost of an
alternative is "grossly excessive" or
significantly more costly for the results
it provides. EPA believes that this
screening should be used to help
streamline the detailed analysis.
  Finally, one commenter suggested that
if there is proper coordination with
natural resource trustees during the
development of alternatives, trustee
recommendations concerning, for
example, appropriate mitigation for
wetlands impacts and cost-effective
restorations, may be incorporated into
project plans. The commenter believed
this would facilitate trustee
determinations as required in section
122(j)(2) of CERCLA. EPA agrees that
coordination with natural resource
trustees during the development of
alternatives is important. Today's rule
indicates in several sections
(§§ 300.615(c), 300.410(g), and
300.430(b)(7)) that the lead agency
should seek to coordinate with the
natural resource trustees. In fact,
§ 300.615 of this rule  addresses a variety
of natural resource trustee issues,
including coordination and cooperation
between multiple trustees and the lead
agency.
  Final rule: Several changes are being
made to proposed § 300.430(e), the
feasibility study section, primarily to
clarify the feasibility study role and
process.
  1. The kinds of alternatives that are
developed during the feasibility study
have been expanded to indicate that
recycling may be used to protect human
health and the environment by
eliminating, reducing and/or controlling
risks at a site. Discussion of this change
is found in the response to comments for
the detailed analysis of alternatives.
  2. Language in the regulation at
§ 300.430(e)(2)(i) has been clarified to
indicate that preliminary remediation
goals are initially developed based on
easily available information, such as
ARARs and other reliable information.
This reliable information will likely be
EPA-developed toxicity information (i.e.,
reference doses and cancer potency
factors). As further information becomes
available, then other factors listed in
paragraphs (e)(2)(i) (A], (B), and (C) will
be considered. In addition, the
description of ARARs in
§ 300.430(e)(2)(i)(A) is revised (see
preamble section below on definition of
"Applicable"). Further, the language in
§ 300.430(e)(2)(i)(A)(i) is revised for
clarity. Sections 300.430(e)(2)(i)(A) (2)
and (3) of the proposal are being
combined hi the final rule to indicate
that exposure to multiple contaminants
and multiple exposure pathways are
situations that may result in ARARs
being nonprotective. Language in
§ 300.430(e)(2)(i)(G) is being added to
indicate that where environmental
ARARs do not exist, environmental
evaluations, especially focusing on
sensitive ecosystems and critical
habitats of species protected under the
Endangered Species Act, will provide
information for developing remediation
goals. These changes are being made to
clarify the proposal and do not represent
any change in the remedial process.
  3. See ARARs preamble sections
below for other additions or revisions to
§ 300.430(e)(2)(i): "Use of maximum
contaminant level goals for ground
water," "Use of federal water quality
criteria (FWQC)," and "Use of alternate
concentration limits (AGLs)."
  4. Section 300.430(e)(6)  has been
revised to clarify that a no-action
alternative may be appropriate where a
removal or remedial action has already
occurred at a site.
  5. The provision on the development
of alternatives that use innovative
technologies is being revised to indicate
that an innovative technology need only
offer the potential to be comparable in
performance or implementability to
demonstrated technologies to warrant
further consideration in the  detailed
analysis step.
  6. Two factors used in the screening of
 alternatives are being revised. ARAR
 compliance and reduction of toxicity,
 mobility or volume through treatment
 are being added as considerations in
 determining effectiveness. This revision
 corrects an inadvertent omission in the
 proposal. The role of cost in screening
 alternatives has been revised to indicate
 that alternatives may be screened on
 costs in two ways. First, an alternative
 whose cost is grossly excessive
 compared to the effectiveness it
 provides may be eliminated in
 screening. Second, if two or more
 alternatives provide similar levels of
 effectiveness and implementability
 using a similar method of treatment or
 engineering control, the more expensive
 may be eliminated from further
 consideration.
  7. The references to advisories,
 criteria or guidance in § 300.430(e) (8)
 and (9) have  been modified (see
 preamble section below on TBCs).

  Name: Section 300.430(e)(2). Use of
 risk range.
  Proposed rule: Proposed
 § 300.430(e)(2)(i)(A)(2) states that for
 known or suspected carcinogens,
 acceptable exposure levels are generally
 concentration levels that represent an
 excess upperbound lifetime cancer risk
 to an individual of between 10"4 and
 10"7 (53 FR 51426 and 51505).
  Response to comments: A few
 commenters supported the proposed risk
 range of 10~4 to 10~7, though generally
 with qualifications. One commenter's
 position on the point of departure makes
 clear that they view the risk range only
 as a fallback when 10~6 cannot be
 attained. Another commenter supporting
 the proposed risk range argued that the
 risk range should be used only as a
 guideline, in order to provide lead
 agencies with sufficient flexibility.
 Another commenter said that they could
 support the proposed range, but their
 comments clearly favor revision to a
 range of 10~4 to 10~6 as the really
 operative part. Several commenters (see
 below) supported a more stringent risk
range or level.
  Many commenters favored a less
 stringent range, i.e., one whose lower
risk bound is higher than 10"7 and
whose upper bound may even exceed
10"4, while some favored a more
 stringent range or a single, stringent
target cleanup level. A few commenters
recommended dispensing with the use of
a risk range or risk assessment
altogether as a basis for cleanup in favor
of what they maintained are more
stringent levels  (background or
statutorily specified ARARs). Several

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52	Federal Register / Vol.  55, No. 46 / Thursday, March 8, 1990 / Rules  and Regulations
commenters pointed out that risk
assessment methodology is as important
as the range chosen.
  The majority in favor of a less
stringent range generally supported a
risk range of10~4 to 10~6. A number of
reasons were given in support of this
alternative. The most commonly
repeated reason is that the narrower,
higher risk range is consistent with risk
management decisions made in other
EPA regulatory programs and in federal
regulatory agencies in general.
Commenters argued that allowing a
lower risk on the order of 10~7 would be
"unprecedented" and "indefensible," far
less than many commonly accepted
risks or the accepted de minimis level.
Some also noted that no Superfund
action has ever cleaned up to this
stringent level. Another commenter
stated that recent judicial decisions
support the use of a narrower risk range.
One commenter suggested a slightly
different range of 10~5 to 10~6 in order to
limit the pressure for less protective
remedies.
   Other reasons for opposing a risk
range with a boundary at 10~7  are that
such a range could lead to fewer
cleanups of high-risk sites or less overall
risk reduction, which would misallocate
scarce resources (the Superfund] and be
contrary to the statutory mandate for
cost-effectiveness; that it is impossible
 to detect many chemicals at this low
level; that it is not technologically
 feasible in many cases to achieve this
level; that risk assessment akeady
incorporates conservative assumptions;
 and that the broader, more stringent
 range complicates analysis of
 alternatives in the FS. One commenter
 pointed out that the more stringent level
 may be suitable for highly toxic
 chemicals such as pesticides, but
 otherwise it is not worth the additional
 cost. Another commenter charged that
• EPA's choice of the lower bound was
 improperly intended to bias selection of
 remedy toward treatment technologies,
 because it is clearly not necessary for
 protection of health.
   Several commenters argued against
 the proposed risk range in favor of
 setting the overall cleanup level for the
 remedy at no higher than 10~6. They
 argued that because risk assessment is
 fraught with uncertainty, remedies
 should always protect to this level at a
 minimum, regardless of the levels of
 individual ARARs. Commenters
 recognized that it may not be feasible to
 achieve 10"8, or there may be
 "extraordinary circumstances" that
 preclude this  level; in such cases one
 commenter proposed an upper bound of
 10-*
  These commenters also had problems
with the specific boundaries proposed
by EPA. One commenter said that 10~4
is too great a risk, and even 10~7 may be
as well; they found the alternative of
10~4 to 10~6 to be unacceptable,
although they did not say what risk level
or approach would be preferable. They
disputed the validity of the argument
relating risk level and number of sites
cleaned up because of the availability of
PRPs. One commenter, while preferring
a risk range to a single level, suggested
that 10~5 rather than 10~* might be more
protective as the upper bound for one or
two chemicals because the conservative
assumptions become additive for more
than two chemicals. Another commenter
argued that an upper bound at 10~5 is
needed because a state agency would
have difficulty supporting or justifying
using a higher risk level. A commenter
expressed concern that a risk range
might preclude more protective remedies
that can practicably be achieved at little
additional cost. One commenter argued
that levels below 10~7 should be
permissible, and that any limit at the
lower end would undermine the  state in
negotiating with PRPs. A commenter
suggested that risk assessment should
be a final check on the most protective
remedy practicable.
   Commenters argued that use of a risk
range does not adequately protect
health and environment. One proposed
that cleanup should always be to
background levels as a first choice,
because anything less leaves
contamination whose cumulative and
chronic effects are unknown. Another
commenter disagreed with use of a risk
range and site-specific risk assessment
as a basis for remedy selection, saying
that it violates the statute's mandate to
use such stringent standards as MCLGs
and water quality criteria, which would
assure protection of health and
environment. A commenter pointed out
that there is no statutory authority for
use of a risk range when ARARs exist.
   Finally, several commenters suggested
that the assumptions and methods of
risk assessment are as important,  or
even more important, than the risk range
used. They pointed out the need for
standardized risk assessment methods
and exposure assumptions, and gave
suggestions for improved ways of
handling uncertainties.
   EPA recognizes the merits of many of
 the comments made on the risk range
 issue and appreciates the significance of
 the boundaries of the risk range for
 determining the extent of protectiveness
 and the cost of cleanups. Based on the
 comments received, EPA has decided to
 revise the boundaries of the acceptable
risk range for Superfund cleanups to
10~4 to 10~6 but to allow for cleanups
more stringent than 10~6 when
warranted by exceptional
circumstances. The following discussion
explains the basis for using a risk range,
the reasons for revising the range, and
how this revised risk range is to be used
when setting remediation goals for  a
specific medium—soil, ground water,
surface water, or air—and responds to
other comments summarized above on
this risk range issue.8
  The primary goals of Superfund
cleanups are to protect human health
and the environment and to comply with
ARARs. When ARARs are not
available, Superfund develops a
reasonable maximum exposure scenario
that describes the current and potential
risk posed by the site in order to
determine what is necessary to achieve
protection against such risks to human
health (see preamble section above on
baseline risk assessment for more
discussion of reasonable maximum
exposure scenario). Based on this
scenario, Superfund selects remedies
that reduce the threat from carcinogenic
contaminants at a site such that the
excess risk from any medium to an
individual exposed over a lifetime
generally falls within a range from 10~4
to 10~6. EPA's preference, all things
being equal, is to select remedies that
are at the more protective end of the risk
range. Therefore, when developing its
preliminary remediation goals, EPA uses
10~6 as a point of departure (see next
preamble section on point of departure).
   EPA believes that use  of a risk range
is consistent with the mandates in
CERCLA and disagrees with comments
that Superfund should not use a risk
range. CERCLA does not require the
complete elimination of risk  or of all
known or anticipated adverse effects,
i.e., remedies under CERCLA are not
required to entirely eliminate potential
exposure to carcinogens. CERCLA
section 121 does direct, among other
requirements, that remedies  protect
human health and the environment, be
permanent to the maximum extent
practicable  and be cost-effective.
Remedies at Superfund sites comply
with these statutory mandates when the
amount of exposure is reduced so  that
the risk posed by contaminants is  very
small, i.e., at an acceptable level. EPA's
risk range of 10~4 to 10~6 represents
EPA's opinion on what are generally
 acceptable levels.
   8 Cleanup levels at a site are determined for a
 particular medium. Such cleanup levels encompass
 the acceptable risk levels for contaminants in that
 medium.

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            Fedeial Register  /  Vol. 55, No.  46 / Thursday,  March 8, 1990 / Rules  and  Regulations
                                                                           53
  In response to comments received,
and to be consistent with the accepted
de minimis level used by other EPA
programs, e.g., the drinking water
program, the lower boundary of the risk
range has been changed from 10"7 to
1(T6.9 This change also reflects the fact,
noted by commenters, that current
available analytical and detection
techniques cannot effectively verify for
many contaminants that concentration
levels corresponding to risk levels below
10~6 have actually been attained after
remediation.
  In the Superfund program,
remediation decisions must be made at
hundreds of diverse sites across the
country. Therefore, as a practical
matter, the remediation goal for a
medium typically will be established by
means of a two-step approach. First,
EPA will use an individual lifetime
excess cancer risk of 10~6  as a point of
departure for establishing  remediation
goals for the risks from contaminants at
specific sites. While the 10~6 starting
point expresses EPA's preference for
setting cleanup levels at the more
protective end of the risk range, it is not
a presumption that the final Superfund
cleanup will attain that risk level.
  The second step involves
consideration of a variety  of site-specific
or remedy-specific factors. Such factors
will enter into the determination of
where within the risk range of 10~4 to
1CT6 the cleanup standard  for a given
contaminant will be established.
  Preliminary remediation goals for
carcinogens are set at a 10~6 excess
cancer risk as a point of departure, but
may be revised to a different risk level
within the acceptable risk range based
on the consideration of appropriate
factors including, but not limited to:
exposure factors, uncertainty factors,
and technical factors. Included under
exposure factors are: the cumulative
effect of multiple contaminants, the
potential for human exposure from other
pathways at the site, population
sensitivities, potential impacts on
environmental receptors, and cross-
media impacts of alternatives. Factors
related to uncertainty may include: the
reliability of alternatives, the weight of
scientific evidence concerning
exposures and individual and
cumulative health effects,  and the
reliability of exposure data. Technical
factors may include: detection/
quantification limits for contaminants,
  9 Office of Drinking Water, National Primary and
Secondary Drinking Water Regulations; Proposed
Rule, 54 FR 22064 (May 22,1989). In general, other
federal agencies do not reduce individual lifetime
risk levels below 10~6. "Cancer risk management,"
Environmental Science and Technology, Vol. 21, No.
5 (1987).
technical limitations to remediation, the
ability to monitor and control movement
of contaminants, and background levels
of contaminants. The final selection of
the appropriate risk level is made when
the remedy is selected based on the
balancing of criteria (see preamble
discussion below on remedy selection).
  Some commenters recommended
establishing a single point, e.g., 10~6, as
the basis for cleanup at all sites. EPA
does not agree with this
recommendation because EPA believes
that other risk levels may be protective
when the 10~6 risk level will not be
attained at a site due to the factors
described above. Moreover, establishing
10"6 as the single cleanup level, i.e., the
only level considered protective, would
be incongruous with CERCLA's
requirement to comply with ARARs.
Many ARARs, which Congress
specifically intended be used as cleanup
standards at Superfund sites, are set at
risk levels less stringent than 10"6.
  Ground water that is not currently a
drinking water source but is potentially
a drinking water source in the future
would be protected to levels appropriate
to its use as a drinking water source.
Ground water that is not an actual or
potential source of drinking water may
not require remediation to a 10~4 to 10~6
level (except when necessary to address
environmental concerns or allow for
other beneficial uses; see preamble
discussions below on EPA's ground-
water policy and on use of MCLGs for
ground-water cleanups).
  EPA's approach on setting
remediation goals for soils is based on
risk levels and is intended to protect
currently exposed individuals as well as
those who potentially may be exposed
in the future. A reasonable maximum
exposure scenario (described in the
preamble section above on "baseline
risk assessment") is developed to
estimate future  potential uses of the site
in order to provide a basis for the  ,
development of protective exposure
levels. For example, soil that is not
currently in residential use but may
potentially have future residential uses
would be protected to levels appropriate
to residential uses. However,
contaminated soil at an industrial site
might be cleaned up to a less stringent
standard, but still within the 10~4 to 10"6
risk range, than soil at a residential site,
as long as there is reasonable certainty
that the site would remain for industrial
use only (institutional controls may be
necessary to ensure that the site is not
used for residential purposes). In the
unusual circumstances where the
baseline risk assessment indicates that
there is little or no chance of any direct
human exposure, for example,
contaminated riverbeds in certain
circumstances, remediation of the
sediments to human health-based levels
may not be necessary (although cleanup
to address environmental concerns may
be required).
   "Potential" is a term used in a variety
of contexts in § 300.430. When
"potential" is used to describe risk,
exposure, exposure pathways or threats,
it means a reasonable chance of
occurrence within the context of the
reasonable maximum exposure scenario
developed for that particular site (see
preamble discussion above on "baseline
risk assessment").
  At some sites, it is not certain that a
risk level of 10~6 will actually be
attained, even when treatment
technology designed to achieve 10"6 is
selected, due to the presence of certain
site-specific exposure factors. Such
factors may indicate the need to
establish a risk goal that is more
protective than the overall goal of 10~6.
These site-specific exposure factors
include but are not limited to: the
cumulative effect of multiple
contaminants; the potential for human
exposure from other pathways at the
site; population sensitivities; potential
impacts on environmental receptors;
and cross-media impacts. In addition,
even if not specified as a goal, a cleanup
more stringent than 10~6may be
achieved in some cases due to the
nature of the treatment technology used.
Remedial technologies exist that, in the
process of meeting remediation goals
within the range of 10~4 to 10~6 risk, can
achieve risk reduction for particular
contaminants below 10"6.
  In summary, EPA's approach allows a
pragmatic and flexible evaluation of
potential remedies at a site while still
protecting human health and the
environment. This approach emphasizes
the use of 10~6 as the point of departure
while allowing site- or remedy-specific
factors, including potential future uses,
to enter into the evaluation of what is
appropriate at a given site. As risks
increase above 10~6, they become less
desirable, and the risk to individuals
generally should not exceed 10~4.
  In response to other comments
received on the risk range issues, EPA
does not agree that cleanup should
always be to background levels. In some
cases, background levels are not
necessarily protective of human health,
such as in urban or industrial areas; in
other cases, cleaning up to background
levels may not be necessary to achieve
protection of human health because the
background level for a particular

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54	Federal Register / Vol.  55, No. 46 / Thursday,  March 8, 1990  /  Rules and Regulations
contaminant may be close to zero, as in
pristine areas.
  Other commenters asserted that EPA
must use statutorily-specified
requirements, such as MCLGs or water
quality criteria (WQC), instead of a risk
range when setting cleanup levels. In
response, EPA believes that a risk range
is necessary to assist in determining
protectiveness in the absence of
potential ARARs. Further, in cases of
mixtures of chemicals where attaining
chemical-specific ARARs for each
contaminant may still result in a
cumulative risk in excess of 10~4 due to
additivity of the risk of the
contaminants, use of a risk range would
be necessary to set a protective
remediation level for the overall
medium. Finally, some commenters
stressed the importance of assumptions
and methods used in conducting risk
assessments to the establishment of
cleanup goals. EPA agrees. EPA
discusses assumptions and methods to
be used when conducting risk
assessments in greater detail in the
preamble sections above on remedial
investigation and baseline risk
assessment.
  Final rule: EPA has revised
§ 300.430{e)(2)(i)(A](2) to state that: "For
known or suspected carcinogens,
acceptable exposure levels are generally
concentration levels that represent an
excess upper bound lifetime cancer risk
to an individual of between 10~4 and
10~* using information on the
relationship between dose  and
response."
  Name: Section 300.430(eK2). Use of
point of departure.
  Proposed rule: Section
300.430{e)(2)(i)(A)[2] stated that the 10"6
risk level shall be used as the point of
departure for determining remediation
goals for alternatives when ARARs are
not available or are not sufficiently
protective.
  Response to comments: Essentially
 none of the commenters supported the
 point of departure exactly as proposed,
 that is, where ARARs are lacking or are
 not sufficiently protective,
 determination of cleanup levels would
 start at 10"6 and move within the risk
 range depending on certain enumerated
 factors.
   Several commenters favored use of
 10~sas the cleanup level. Some of these
 commenters did not actually endorse the
 concept of a point of departure in that
 they thought the overall risk of a remedy
 should not exceed 10~6m any case.
 Others essentially supported a sticky
 point from which departures in the
 direction of increased risk would only
be justified on grounds such as
infeasibility.
  A number of commenters preferred
the use of the full risk range rather than
a single value for the cleanup level. In
certain cases it was not clear whether
commenters understood EPA's intention
in having a point of departure. One
commenter said that a point of
departure does not help in developing
cleanup goals. Other commenters argued
that a point of departure undermines the
risk range by establishing a single value
for all sites, whereas use of a risk range
accounts for variation among sites and
for uncertainties in risk assessment.
Another commenter supported use of the
entire range rather than focusing on 1CT6
in order to foster cost-effectiveness in
the program, while several others
similarly stated that a risk range, rather
than a target level, recognizes such
relevant factors  as toxicity, exposure
potential, and cost-benefit tradeoffs.
  Several commenters proposed use of a
different point of departure, and even
one which could vary depending on the
site circumstances. If a point of
departure is chosen, one commenter
suggested that 10~5is the appropriate
value, being within the suggested risk
range of 10~4 to 1(T6. Another
commenter, on the other hand, said the
point of departure should be 10" *: this
level is considered acceptably
protective; it is already based on very
conservative assumptions, so that the
true risk is lower; and anything lower
would be a bias toward treatment.
   In opposing the proposed point of
departure,  one commenter suggested
that there should be different targets for
various population sizes, and that a
higher value such as 10~4 is adequate for
smaller populations. Others echoed this
comment, saying that population size
should be a factor for moving in the risk
range, and that for small populations
10"* suffices. One commenter pointed
out that other federal agencies have
considered 10~4 as de minimis for small
populations. A commenter stated that
EPA has in the past considered 10~5 as
 insignificant when aggregate population
 risk is very low. The commenter did not
 suggest a value  but said that EPA should
 re-examine the issue of not considering
 population size  in setting cleanup levels.
 Finally, one commenter suggested that
 risk levels could be set depending on the
 conservatism of the assumptions used
 and other relevant factors such as the
 form in which the chemical is present in
 the environment.
   EPA believes it is necessary to
 explain how it intends the point of
 departure  to be used. Where the
 aggregate risk of contaminants based on
 existing ARARs exceeds 10~4or where
remediation goals are not determined by
ARARs, EPA uses 10"6 as a point of
departure for establishing preliminary
remediation goals. This means that a
cumulative risk level of 10~6 is used as
the starting point (or initial
"protectiveness" goal) for determining
the most appropriate risk level that
alternatives should be designed to
attain. The use of 10~6 expresses EPA's
preference for remedial actions that
result in risks at the more protective end
of the risk range, but this does not
reflect a presumption that the final
remedial action should attain such a risk
level. Factors related to exposure,
uncertainty and technical limitations
may justify modification of initial
cleanup levels that are based on the 10"6
risk level. The ultimate decision on what
level of protection will be appropriate
depends on the selected remedy, which
is based on the criteria described in
§ 300.430(e)(9)(iii).
   EPA believes, however, that it is both
useful and necessary to have a starting
point in those cases where the
remediation goal is not determined by
ARARs. Although adjustments may be
necessary in determining the actual
remediation goal for a site, it is
important to have an initial value to
which adjustments can be made,
particularly since the risk range covers
two orders of magnitude. By using 10~6
as the point of departure, EPA intends
that there be a preference for setting
remediation goals at the more protective
end of the range, other things being
equal. Contrary to assertions of some
commenters, EPA does not believe that
this preference will be so strong as to
preclude appropriate site-specific
factors. Also, EPA does not agree that
cost should be considered when setting
the preliminary remediation goal
because reliable cost  information is not
available at this step of the process.
Cost is ultimately one of the criteria
used in selecting a remedy.
   EPA would like to address those
 commenters who suggest that the point
 of departure should depend on
population size. At this time EPA
believes that the point of departure
 should be consistent across all sites.
 The point of departure represents a level
 from which analysis should begin,
 regardless of the circumstances.
 Preliminary and final remediation goals,
 i.e., target risk levels, however, may
 vary from the point of departure
 depending upon site-specific
 circumstances (see discussion above on
 risk range). The ultimate role of
 population size in determining response
 priorities or remedies is currently under

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            Federal Register  /  Vol. 55, No. 46 / Thursday. March 8,  1990 / Rules and Regulations
review by the Risk Management
Council.
  Final rule: EPA is revising proposed
§ 300.430(e)(2}(i)(A)(.2) on the point of
departure as follows: "The l(T6risk
level shall be used as the point of
departure for determining remediation
goals for alternatives when ARARs are
not available or are not sufficiently
protective because of the presence of
multiple contaminants at a site or
multiple pathways of exposure;  * *  *"
  Name: Section 300.430(e)(9). Detailed
analysis of alternatives.
  Proposed rule: The purpose of the
detailed analysis is to objectively assess
the alternatives with respect to nine
evaluation criteria that encompass
statutory requirements and include
other gauges of the overall feasibility
and acceptability of remedial
alternatives (53 FR 51428). This analysis
is comprised of an individual
assessment of the alternatives against
each criterion and a comparative
analysis designed to determine the
relative performance of the alternatives
and identify major trade-offs (i.e.,
relative advantages and disadvantages]
among them. The decision-maker uses
information assembled and evaluated
during the detailed analysis in selecting
a remedial action.
  Response to comments: The preamble
discussion of the detailed analysis
section of the RI/FS process in the
proposal categorized the nine criteria
into three groups: threshold, primary
balancing and modifying criteria (53 FR
51428). Although in general, commenters
supported this tiered system, many were
confused about the significance  of the
categories in the detailed analysis and
remedy selection stages. After a careful
study of the comments, EPA has
concluded that the process EPA
proposed would be expressed more
clearly if the nine criteria were not
divided into three categories during the
detailed analysis phase, when all nine
criteria need to  be objectively assessed,
but when the balancing decision is
made. EPA believes that the
characterization of the criteria into the
three categories is important, and should
be used during remedy selection, as
discussed in that section of today's
preamble.
  Some commenters asked EPA to
clarify the purpose and content of the
detailed analysis. The following is a
general description of the detailed
analysis. The detailed analysis of
alternatives consists of the analysis and
presentation of the relevant information
needed to allow decision-makers to
select a site remedy. It is not the
decision-making process itself. During
the detailed analysis, each alternative is
assessed against each of the nine
criteria. The analysis lays out the
performance of each alternative in terms
of compliance with ARARs, long-term
effectiveness and permanence,
reduction of toxicity, mobility or volume
through treatment, short-term
effectiveness, implementability, and
cost. The assessment of overall
protection draws on the assessments
conducted under other evaluation
criteria, especially long-term
effectiveness and permanence, short-
term effectiveness and compliance with
ARARs. State and community
acceptance also are assessed, although
definitive assessments of these factors
cannot be completed until the public
comment period on the draft RI/FS and
proposed plan is completed. Further
guidance on this process is available in
the "EPA Guidance for Conducting
Remedial Investigations and Feasibility
Studies Under CERCLA," OSWER
Directive No. 9355.3-01, October 1988
(Interim Final). This guidance will be
updated following promulgation of the
NCP.
  After making the individual criterion
assessments for each alternative, the
alternatives are compared to each other.
This comparative analysis identifies the
key tradeoffs (relative advantages and
disadvantages) among the alternatives
with respect to the nine criteria. The
purpose of this comparative analysis is
to provide decision-makers with
sufficient information to balance the
trade-offs associated with the
alternatives, select an appropriate
remedy for the site and demonstrate
satisfaction of the CERCLA remedy
selection requirements.
  In general, commenters supported the
use of the nine criteria in performing the
detailed analysis. The supporters wrote
that the criteria provide the flexibility
needed to" analyze diverse site
conditions, by allowing the
consideration of a wide range of
relevant factors.
  Some commenters wrote that nine
criteria are too many to address in the
detailed analysis. These commenters
argued that considering so many criteria
makes the evaluation too complicated.
While supporting the nine criteria, one
commenter suggested adding as an
additional criterion, the extent to which
the alternative utilizes permanent
solutions and alternative treatment
technologies or resource recovery
technologies to the maximum extent
practicable. In addition, several
commenters addressed the relation of
the nine criteria used in alternatives
evaluation and remedy selection to the
statutory mandates for remedy selection
 described in section 121 of CERCLA.
 These commenters remarked that the
 use of the nine criteria was a significant
 departure from the remedy selection
 criteria in the 1985 NCP, which focused
 on protectiveness and cost. They also
 believed that increasing the number of
 criteria to be considered during remedy
 selection reduces flexibility and
 complicates an already complicated
 process. They suggested that the criteria
 should be based directly on the
 statutory language. Specifically, these
 commenters proposed the following four
 criteria: protection of human health and
 the environment; compliance/waiver of
 ARARs; preference for permanent
 solutions and treatment as a principal
 element; and cost-effectiveness.
  Although agreeing with EPA's
 establishment of protection of human
 health and the environment and
 compliance with ARARs as the first two
 evaluation criteria, one commenter
 suggested significant modifications to
 the other criteria. This commenter
 suggested merging the five evaluation
 criteria of long-term effectiveness and
 permanence, reduction of toxicity,
 mobility or volume through treatment,
 short-term effectiveness,
 implementability, and cost, into three
 broad criteria: effectiveness,
 implementability and cost. This
 commenter noted that state and
 community acceptance, although
 relevant considerations in remedy
 selection, add nothing to the feasibility
 study process. The commenter believes
 this system would provide the most
 appropriate starting point for creating a
 structured method for selecting a site
 remedy.
  EPA developed the nine evaluation
 criteria  to give effect to the numerous
 statutory mandates of section 121 and in
 particular, the remedial action
 assessment factors of section 121(b)(l)
 (A)-(G). EPA does not believe analysis
 of alternatives under the four criteria
 approach suggested by the commenter
 would provide an adequate analytical
 framework. EPA also is not adding as a
 criterion the statutory mandate to utilize
 permanent solutions and alternative
treatment technologies or resource
recovery technologies to the maximum
 extent practicable. The analysis
performed pursuant to the nine criteria
 concludes with selection of a remedy
 that meets the statutory mandates. This
analysis requires consideration of a
number of factors before making these
 conclusions. In particular, the mandate
for cost-effective remedies clearly
requires consideration of both costs and
the effectiveness of alternatives.
Similarly, EPA believes that a range of

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Federal Register / Vol. 55, No. 46  / Thursday, March 8, 1990  /  Rules and Regulations
factors, including long-term
effectiveness and permanence,
reduction of toxiclty, mobility, or volume
through treatment, an'!* short-term
effectiveness, must be considered to
provide the basis for concluding that a
particular alternative represents the
practicable extent to which permanent
solutions and treatment can be used at a
given site. However, EPA has included
two specific statutory requirements in
the criteria (protection of human health
and the environment and compliance
with ARARs) in light of the paramount
importance of these mandates. EPA
notes that it does have an expectation
that alternatives that will treat principal
threats at sites will be considered,
consistent with the statutory preference
for treatment as a principal element.
  The proposed rule stated that the
detailed analysis is to be conducted on
the limited number of alternatives that
represent viable hazardous waste
management approaches (53 FR 51506).
One commenter recommended changing
the wording to conduct a detailed
analysis on those alternatives
representing "viable approaches to
remedial action," rather than "viable
hazardous waste management
approaches." EPA agrees with this
recommendation and has substituted the
commenter's wording for the phrase in
the final rule. As a further clarification,
today's rule consistently uses the term
"remedial alternative" in all pertinent
places.
   A discussion of each of the nine
criteria follows.
   1. Protection of human health and the
environment. This evaluation criterion
assesses whether each alternative
provides adequate protection of human
health and the environment. The overall
assessment of protection draws on the
assessments conducted under other
evaluation criteria, especially long-term
 effectiveness and permanence, short-
 term effectiveness, and compliance with
ARARs. Only those alternatives
 determined to be protective in the
 detailed analysis proceed to the
 selection of remedy step.
   One commenter noted that
 effectiveness, implementability, extent
 of reduction in toxicity, mobility, or
 volume, and compliance with ARARs
 criteria should be considered before
 evaluating the protectiveness of a
 remedial alternative. EPA agrees that
 the protectiveness  determination in the
 detailed analysis draws upon the
 assessments conducted under other
 evaluation criteria, especially long-term
 effectiveness and permanence, short-
 term effectiveness, and compliance with
 ARARs. However, EPA has maintained
 protection of human health and the
                           environment as the first criterion due to
                           the clear statutory mandate to select
                           remedies that are protective of human
                           health and the environment.
                             One commenter stressed that the
                           impact of the remedial action on natural
                           resources must be assessed under this
                           criterion. The commenter noted that the
                           use of ground-water pump and treat
                           systems as part of a remedial action
                           may deplete valuable water resources,
                           particularly in the western states. EPA
                           agrees that the impact of the remedial
                           action must be assessed and calls for
                           this analysis under the short-term
                           effectiveness criterion. As noted above,
                           the evaluations of short-term
                           effectiveness and other criteria are used
                           in assessing the protectiveness of each
                           alternative.
                              2. Compliance with ARARs. This
                           evaluation criterion is used to determine
                           whether each alternative will meet all of
                           its federal and state ARARs (as defined
                           in CERCLA section 121). The detailed
                           analysis should summarize which
                           requirements are applicable or relevant
                           and appropriate to an alternative and
                           describe how the alternative meets
                           these requirements. When an ARAR is
                           not met, the detailed analysis should
                           discuss whether one of the six waivers
                           allowed under CERCLA may be
                           appropriate (see also preamble section
                           below on ARARs).
                              One commenter noted that the
                           responsibility for evaluating the
                            applicability of ARARs waivers to a
                           proposed remedial action lies with the
                            lead agency and not with the potentially
                           responsible party (PRP). This commenter
                            also recommended that the lead agency
                            evaluate potential grounds for ARARs
                            waivers as early as possible in the
                            feasibility study, due to the important
                            role ARARs play in the ultimate remedy
                            selection decision. EPA supports early
                            evaluation of ARARs by the lead agency
                            or the PRP, as appropriate, depending on
                            site-specific enforcement agreements.
                            Either the PRP or a state may perform
                            the ARAR analysis and recommend the
                            applicability of ARAR waivers, but
                            ultimately EPA determines compliance
                            with ARARs (and the applicability of
                            ARARs waivers) when it selects the
                            remedial action, as described in the
                            proposed plan and finalized in the
                            record of decision (ROD).
                              3. Long-term effectiveness and
                            permanence. The analysis under this
                            criterion focuses on any residual risk
                            remaining at the site after the
                            completion of the remedial action. This
                            analysis includes consideration of the
                            degree of threat posed by the hazardous
                            substances remaining at the site and the
                            adequacy and reliability of any controls
                            (e.g., engineering or institutional
controls) used to manage the hazardous
substances remaining at the site. The
criterion is founded on CERCLA's
mandates  to select remedies that are
protective of human health and the
environment and that utilize permanent
solutions and alternative treatment
technologies or resource recovery
technologies to the maximum extent
practicable and that maintain protection
over time.
  Seeking clarification of EPA's
interpretation of "permanence," one
commenter recommended that EPA
define a permanent remedy as a remedy
for a particular site that results in
protection of human health and the
environment without the need for
significant levels of long-term operation
and maintenance. Another suggested
that a permanent solution is simply a
remedy that is not an interim solution,
i.e., it is a final solution. EPA evaluates
permanence to the maximum extent
practicable as the degree of long-term
effectiveness and permanence afforded
by a remedy. This is judged along a
continuum, with remedies offering
greater or lesser degrees of long-term
effectiveness and permanence.
   As a general observation, several
commenters noted that many of the
criteria (e.g., long-term effectiveness,
short-term effectiveness, and reduction
of toxicity, mobility or volume through
treatment) overlap. EPA acknowledges
that these factors are related. They
derive from the mandates of section 121
and are designed to elicit analysis on
distinct, but related factprs to perform a
comprehensive analysis of each
alternative. Today's rule lists factors to
be considered in performing the detailed
analysis under each of the criteria. For
further guidance, see the "Guidance for
Conducting Remedial Investigations and
Feasibility Studies Under CERCLA,"
 OSWER Directive No. 9355.3-01,
 October 1988  (Interim Final).
   Long-term effectiveness includes a
 consideration of the residual risk
 remaining at a site after the remedial
 action is  complete. This assessment of
 risk is conducted assuming conservative
 but realistic exposures. This
 consideration will assess how much of
 that risk is associated with treatment
 residuals and how much is associated
 with untreated waste. The potential for
 this risk may  be measured by numerical
 standards such as cancer risk levels or
 the volume or concentration of
 contaminants in waste, media, or
 treatment residuals remaining on site. -
   4. Reduction of toxicity, mobility or
 volume through treatment. This
 evaluation criterion addresses the
 statutory preference for selecting

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             Federal Register / Vol. 55, No.  46 / Thursday, March 8, 1990 / Rules and Regulations          57
remedial actions that employ treatment
technologies that permanently and
significantly reduce the toxicity,
mobility or volume of the hazardous
substances as a principal element.
Specifically, this analysis examines the
magnitude, significance and
irreversibility of such reductions
achieved by alternatives employing
treatment.
  One commenter pointed out that the
preamble  to the proposed rule lacked
precision in stating that CERCLA
section 121 mandates a preference for
remedies that permanently reduce the
volume, toxicity, or mobility of the
hazardous substances. Rather, this
commenter wrote,  section 121
establishes a preference for remedies in
which treatment permanently and
significantly reduces the volume,
toxicity or mobility of the hazardous
substances. The commenter noted the
omission of the word "treatment"  could
be important because the ambiguous
statement in the proposal would allow
the conclusion that containment
qualifies as  a preferred remedy. In fact,
some commenters  suggested the rule
contain language stating that physical
control, or containment on site, would
qualify as actions achieving a reduction
of mobility for purposes of this criterion.
  EPA must stress that the reductions
analyzed pursuant to the reduction of
toxicity, mobility or volume criterion
must be attained through treatment. This
criterion is designed  to evaluate
alternatives in light of CERCLA's
preference for remedial actions in  which
treatment which permanently and
significantly reduces  the volume,
toxicity or mobility of the hazardous
substances is a principal element. This
criterion has been amended in today's
rule to specify analysis of the extent that
toxicity, mobility or volume is reduced
through treatment.
  On a related point, another
commenter noted that the statute
establishes a preference for reduction of
toxicity, mobility or (rather than "and")
volume through treatment. EPA agrees
with this comment and today's preamble
and rule consistently refer to the
reduction of toxicity,  mobility or volume
through treatment.
  Another commenter expressed
concern that the phrase "permanently
and significantly reduces the volume,
toxicity or mobility of the hazardous
substances" will be interpreted as  a
presumption in favor of incineration.
This commenter believes such a
presumption would dramatically
increase remediation costs without
providing a corresponding increase in
protectiveness. Some •commenters
argued that the effectiveness of different
 treatment technologies should not be
 judged solely on the destructive
 efficiency of a particular technique, such
 as incineration, because treatment
 technologies that do not destroy
 hazardous constituents but rather
 immobilize them chemically also are
 capable of protecting human health and
 the environment and satisfying the
 statutory preference.
  In response, the purpose of treatment
 in the Superfund program is to
 substantially reduce the toxicity,
 mobility, or volume of hazardous
 substances in order to decrease the
 inherent hazards posed by a site.
 Consistent with the statutory preference
 set out in CERCLA section 121(b)(l),
 EPA expects to treat the principal
 threats (e.g., contaminants of concern]
 posed by a site, wherever practicable
 (see § 300.430(a)(l)(iii)(A)). However,
 EPA agrees with the commenters that
 more than one treatment technology is
 capable of accomplishing these goals. In
 order to clarify this point, EPA is
 establishing, as a guideline, that
 treatment as part of CERCLA remedies
 should generally achieve reductions of
 90 to 99 percent in the concentration or
 mobility of individual contaminants of
 concern,  although there will be
 situations where reductions  outside the
 90 to 99 percent range that achieve
 health-based or other site-specific
 remediation goals (corresponding to
 greater or lesser concentration
 reductions) will be appropriate.
  All treatment should involve well-
 designed and well-operated systems. In
 order to achieve 90 percent or greater
 reductions, the systems should be
 designed to achieve reductions beyond
 the target level under optimal
 conditions. If treatment results in the
 transfer of hazardous constituents from
 one medium to another (e.g., stripping of
 volatile organic compounds from
 sludges to air), treatment of the newly
 affected medium will often be required.
  The reductions suggested by this
 guideline for effective treatment may be
 achieved by the application of a single
 technology or a combination of
 technologies (i.e., treatment train). In
 addition, EPA believes this 90 to 99
percent range allows the use of an array
 of technologies, including innovative
 technologies. As noted above, EPA
agrees that a wide variety of treatment
 technologies are capable of achieving
these reductions. For example, effective
treatment may potentially include
bioremediation, solidification, and a
variety of thermal destruction
technologies, as well as many others.
EPA supports the development and use
of a diverse array of treatment
technologies to address hazardous
 substances at Superfund sites. Examples
 of efforts to support such development
 and use include the Superfund
 Innovative Technology Evaluation
 program and the increased
 encouragement of treatability testing of
 innovative technologies during the RI/
 FS to improve promotion and selection
 of such technologies. To provide further
 emphasis on the use of innovative
 technologies, today's rule incorporates
 an expectation that examination of such
 technologies shall be carried through to
 the detailed analysis if those
 technologies have the potential and
 viability to perform better than or equal
 to proven technologies in terms of
 performance or implementability, short-
 term effectiveness or cost
 (§ 300.430(a)(l)(iii)(E)).
   This guideline for effective treatment
 is based on an evaluation by the
 Superfund program of the effectiveness
 of treatment technologies on hazardous
 constituents in sludges, soil, and debris,
 the most common waste addressed by
 Superfund source control remedial
 actions ("Summary of Treatment
 Technology Effectiveness for
 Contaminated Soil," EPA Final Report
 (March 1989)). This guideline is also
 consistent with guidance that
 establishes alternate treatment levels to
 be achieved when complying with the
 RCRA land disposal restrictions for soil
 and debris  through a treatability
 variance ("Obtaining a Soil and Debris
 Treatability Variance for Remedial
 Actions," Superfund LDR Guide #6A,
 OSWER Directive 9347.3-06FS). Both
 documents are available in the docket in
 support of this final rule.
  One commenter recommended that
 recycling should be considered in
 assessing the extent that each
 alternative  reduces the toxicity, mobility
 or volume of the hazardous substances.
 Although the rule as proposed would
 have allowed recycling activities to
 occur as part of the remedial action,
 § 300.430(e)(9)(iii)(D) of today's rule is
 changed to  specifically consider the
reduction of toxicity, mobility or volume
 of the hazardous substances through
recycling.
  5. Short-term effectiveness. This
evaluation criterion addresses the
effects of the  alternative during the
construction and implementation phase
until remedial response objectives are
met. Under this criterion alternatives are
evaluated with respect to their  effects
on human health and the environment
during implementation of the remedial
action.
  One commenter requested additional
guidance on the evaluation of short-term
effectiveness. Today's rule lists the

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58
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
factors to consider under this criterion.
The assessment of short-term
effectiveness includes an evaluation of
how alternatives will protect the
community during remedial actions.
This aspect of short-term effectiveness
addresses any risk that results from
implementation of the proposed
remedial action, such as dust from
excavation, transportation of hazardous
materials, or air quality impacts from a
stripping tower operation that may
affect human health. This assessment
will consider who may be exposed
during the remedial action, what risks
those populations may face, how those
risks can be mitigated, and what risks
cannot be readily controlled. Workers
are included in the population that may
be affected by short-term exposures.
   This criterion also addresses potential
adverse impacts on the environment
that may result from the construction
and implementation of an alternative
and evaluates the reliability of the
available mitigation measures in
preventing or reducing potential impacts
on either of these potential receptors.
More detailed guidance on evaluating
the short-term impacts of a remedial
alternative is included in the "EPA
Guidance for Conducting Remedial
Investigations and Feasibility Studies
Under CERCLA" (OSWER Directive
9355.3-01, October 1988). This guidance
lists relevant factors to analyze as part
of this criterion and the bases for
evaluation during the detailed analysis.
   This commenter also expressed
concern that EPA's definition of short-
term effectiveness does not sufficiently
highlight the use  of institutional controls
during remedy implementation.
According to this commenter, because
 these techniques can substantially
reduce risk, EPA should require
 consideration of these controls when
 assessing the short-term effectiveness of
 an alternative. Another commenter
 expanded on this concept, stating that
 both institutional controls and site
 stabilization can be used to mitigate the
 risks posed by the remedial action. This
 commenter argued that use of
 institutional controls and site
 stabilization activities would allow the
 use of innovative technologies, such as
 bioremediation, that could be effective
 in the long-term. EPA agrees that short-
 term effects often can be mitigated
 through the use of institutional controls
 along with other active measures that
 may include interim remedies
 (implemented as operable units) or
 removal actions. Program management
 principles and expectations placed in
 today's rule reflect these concepts.
                              One commenter noted that many of
                            the same considerations that apply to
                            the evaluation of long-term effectiveness
                            also apply to evaluating the short-term
                            effectiveness of certain remedial
                            techniques. In analyzing short- and long-
                            term effectiveness, EPA may study
                            impacts or risks posed to many of the
                            same receptors. However, the focus of
                            the analyses under the two criteria
                            differ. The analysis under the long-term
                            effectiveness and permanence criterion
                            addresses the risk remaining after
                            response objectives have been met. The
                            primary focus of this evaluation is the
                            extent and effectiveness of the controls
                            that may be required to manage the risk
                            posed by treatment residuals and/or
                            untreated wastes. The analysis under
                            the short-term effectiveness criterion
                            focuses on the effects on human health
                            and the environment during
                            implementation of the remedial action.
                              6. Implementability. The
                            implementability criterion addresses the
                            technical and administrative feasibility
                            of implementing an alternative and the
                            availability of various services and
                            materials required during its
                            implementation.
                              Some commenters linked
                            implementability with effectiveness.
                            These commenters argued that the two
                            criteria must be analyzed together
                            because an alternative that is not
                            implementable also could not be
                            effective. One commenter asserted that
                            implementability is site-specific and
                            therefore should include the variables of
                            each site's topography, location, and
                            available  space, capacity and
                            technologies.
                              Although EPA agrees that
                            implementability and effectiveness are
                            related, EPA has maintained them as
                            separate analytical criteria. This  allows
                            distinct analysis of the various
                            subfactors of each criterion (such as the
                            magnitude of residual risk remaining at
                            the conclusion of the remedial action for
                            long-term effectiveness and
                            permanence, and the technical
                            feasibility associated with the remedial
                            action for implementability), which
                            generally do not relate to both. EPA
                            agrees that implementability is
                            determined on a site-specific basis. The
                            factors listed by this commenter would
                            be addressed under the technical
                            feasibility component of the
                            implementability criterion. Today's rule
                            lists the factors to be considered under
                            the criteria and the RI/FS guidance
                            provides an additional discussion.
                              7. Cost. Many comments reflected
                             some confusion over the role of cost as
                             an analytical criterion under the
                             detailed analysis and the required
statutory finding that the remedy
selected is cost-effective. One
commenter focused on the need to
distinguish the cost-effectiveness finding
from the cost evaluation criterion. EPA
agrees that this distinction is an
important one. Although cost is used as
a crude screen in the development and
screening of alternatives, cost is
primarily addressed in the detailed
analysis and remedy selection phases of
the remedial process. The detailed
analysis evaluates and compares the
cost of the respective alternatives, but
draws no conclusion as to the cost-
effectiveness of the alternatives. Cost-
effectiveness is determined in the
remedy selection phase, considering the
long-term effectiveness and permanence
afforded by the alternative, the extent to
which the alternative reduces the
toxicity, mobility, or volume of the
hazardous  substances through
treatment, the short-term effectiveness
of the alternative, and the alternative's
cost (see preamble section below on
detailed discussion of the role of cost in
decisionmaking).
   Several commenters addressed cost
as an evaluation criterion. Some noted
the importance of an adequate cost
evaluation in the detailed analysis
phase. EPA agrees that the evaluation of
costs associated with an alternative
must be based on as complete and
accurate cost data as possible. Several
commenters stated that the discount
rate used to determine the net present
value creates a bias against protective
remedies. Some argued that use of the 10
percent discount rate established by
Office of Management and Budget
(OMB) Circular A-94 is inappropriately
high. They believe use of this discount
rate artificially reduces estimates of the
cost of operation and maintenance
(O&M) and encourages the selection of
containment-based, low capital, high
O&M cost remedies, while discouraging
high capital, low O&M cost remedies.
They commented that the discount rate
 of 10 percent is unrealistic because it
 does not take into account long-term
market conditions and the likelihood
 that the beneficial value of a clean site
 will increase as populations increase
 and natural resources become more
 scarce. The discount rate may also be
 outdated because inflation rates have
 changed since the rate was developed.
 The commenters stated that five percent
 is a more realistic discount rate. EPA
 recognizes the importance of using an
 appropriate discount rate when deriving
 estimates  of project costs. EPA does not
 intend to create a bias against high
 capital, low O&M cost remedies. EPA
 will follow OMB Circular A-94 and

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             Federal Register / Vol. 55, No. 46 / Thursday,  March 8. 1990 / Rules and Regulations
                                                                           59
 notes that OMB is currently reviewing
 its provisions. If and when Circular A-
 94 is revised, EPA will address this
 matter in program guidance to ensure
 consistency with Circular A-94.
   EPA received the suggestion that the
 cost criterion should include the
 assessment of savings due to recycling
 of salvageable or recyclable material.
 EPA has not changed the rule to
 specifically consider revenue realized
 due to recycling. However, EPA believes
 that to the extent response costs are
 directly offset by the receipt of revenue
 from recycling, such funds should be
 included when calculating the  costs of
 the response action.
   One commenter argued that  costs of
 future remedial actions should be
 included in the cost estimate, when
 there is a reasonable expectation that a
 major component of a remedy may
 require replacement. EPA agrees and
 believes that such factors may be taken
 into account under today's rule.
 Analysis under the "long-term
 effectiveness and permanence" criterion
 should be used to determine which
 alternatives may result in future costs. A
 detailed statistical analysis is not
 required to identify probable future
 costs. Rather, qualitative engineering
 judgment  should be used to assess
 whether replacement costs should be
 considered. EPA specifically has
 provided in the RI/FS guidance that
 such costs are to be addressed, and if
 appropriate, included in the cost
 estimate, when it may be reasonably
 assumed that a major component of the
 alternative will fail and require
 replacement to prevent significant
 exposure to contaminants. EPA notes
 that when developing cost information,
 both direct and indirect capital and
 operation and maintenance costs should
 be developed.
   One commenter recommended
 considering as part of the analysis under
 this criterion, costs related to losses of
 business activities, residential
 development, and local, state, and
 federal tax revenues that may result
 from restricting future land use and
 ground water use that may be necessary
 with remedial actions that leave
 hazardous substances on site. The
 commenter also said that EPA should
 also take into account the reductions in
 the values of the neighboring properties
 that may occur when an inactive waste
 site is not  restored to unrestricted use.
In response, EPA does not believe it is
 appropriate under CERCLA to include
 these costs within this evaluation
 criterion. Section 111 of CERCLA
governs the use of the Fund and
 according  to that section, these costs are
 not included as costs that may be
 incurred by the Fund. In addition,
 section 107 provides the right to recover
 response costs, natural resources
 damages and costs of certain health
 assessments or health effects studies.
 The costs listed by the commenter also
 are not included specifically within the
 costs recoverable under section 107.
 Further, such indirect effects such as the
 reduction in property values are the
 result of the hazardous substance
 activity, not the response action.
   One commenter asked EPA to
 acknowledge that federal procurement
 requirements apply to EPA contractors
 conducting Superfund remedial actions.
 EPA agrees with the commenter that
 EPA contractors must comply with
 federal procurement requirements and
 that this can reduce the cost of Fund-
 financed remedial actions (e.g., contract
 award to responsive, responsible low
 bidder).  However, EPA does not believe
 it necessary or appropriate to
 acknowledge this in the rule. Similarly,
 EPA received comments that it should
 employ cost-cutting measures when
 implementing remedial actions. EPA
 agrees and does so whenever possible.
  EPA received the comment that the
 detailed analysis  does not afford
 sufficient weight to cost because, among
 the five criteria labeled as balancing
 criteria in the proposal, four address
 effectiveness and implementability and
 only one addresses cost. EPA stresses
 that the number of related criteria in the
 detailed analysis  does not relate to the
 importance of each criterion. All nine
 criteria are important to address the
 requirements of CERCLA.
  8. State acceptance. This criterion
 reflects the statutory requirement to
 provide for substantial and meaningful
 state involvement. State comments may
 be addressed during the FS, as
 appropriate, although formal state
 comments generally are not received
 until after the state has reviewed the
 draft RI/FS and the draft proposed plan
 prior to the public comment period.
  EPA received several comments
 stressing the importance of this
 criterion. EPA agrees this consideration
 is important and has developed today's
 rule consistent with CERCLA's
 emphasis on state involvement in the
 remedial process (see also preamble
 section below on subpart F).
  9. Community acceptance. This
 criterion refers to the community's
 comments on the remedial alternatives
 under consideration. For this evaluation,
 community is broadly defined to include
 all interested parties, including PRPs.
These comments are taken into account
 throughout the RI/FS process, although
 formal community comments are made
 during the public comment period for the
 proposed plan and the RI/FS.
   EPA received one comment suggesting
 that this criterion only consider the
 acceptance of a party if that party
 resides in a community near the site.
 This commenter argued that comments
 from parties affected only by
 interference of normal commerce or
 residing in areas unaffected by the
 potential health threat should not be
 afforded the same weight as those
 parties residing  in the nearby
 community. As a matter of policy, EPA
 places the highest priority on comments
 received from the community to which
 the site potentially or actually poses a
 human health or environmental risk.
 However, today's rule establishes no
 formal priority for evaluating community
 comments. Instead, community concerns
 will be assessed on a site-specific basis,
 allowing flexibility to meet the demands
 of varying site conditions and diverse
 community needs.
   Final rule: 1. Today's regulation
 revises proposed § 300.430(e)(9) based
 on comments received on the detailed
 analysis of alternatives using the nine
 criteria, the remedy selection, and the
 hierarchy of criteria used in the
 analysis. The revisions made in
 response to comments primarily attempt
 to clarify the process. The revisions
 reflect the fact that the detailed analysis
 should be an objective assessment  of
 the alternatives with respect to the nine
 criteria and as a consequence, the
 threshold, balancing, and modifying
 labels  have been removed from the
 discussion of the nine criteria during the
 detailed analysis and placed in the
 selection of remedy section, where  the
 criteria are actually used as threshold,
 balancing, and modifying criteria.
  2. The final rule requires specification
 of which reduction—toxicity, mobility or
 volume—will be achieved by an
 alternative. Section
 300.430(e)(9)(iiiKD)(.Z) is revised to
 indicate that recycling is an acceptable
 means of accomplishing reduction.

  Name: Section 300.430(f). Remedy
 selection.
  Existing rule: The 1985 NCP calls for
 the selection of remedies that are cost-
 effective and that effectively mitigate
 and minimize threats to public health
 and welfare and  the environment. 40
 CFR 300.68(i)(l). In selecting the
 appropriate extent of remedy, the lead
 agency considers cost, technology,
reliability, administrative and other
concerns, and their relevant effects  on
public health and welfare and the
environment. Federal ARARs are used

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60
Federal Register / Vol. 55, No.  46 / Thursday, March 8, 1990 / Rules  and Regulations
as the basis for determining cleanup
levels.
  CERCLA, as amended in 1986,
elevated the use of ARARs, including
state ARARs, as cleanup standards to a
statutory requirement and provided
other requirements for remedy selection.
Congress retained the requirement for
protective and cost-effective remedies
and prescribed remedies that utilize
permanent solutions and alternative
treatment technologies or resource
recovery technologies to the maximum
extent practicable.
  Proposed rule: The preamble to the
proposed rule explained that selection
of a remedial action is a two step
process (53 FR 51429). First, the lead
agency, in conjunction with the support
agency, reviews the results of the RI/FS
to identify  a preferred alternative. The
lead agency presents this preferred
alternative, along with the supporting
information and analysis, to the public
in a proposed plan for review and
comment. Second, the lead agency
reviews the public comments, consults
with the support agency to evaluate
whether the preferred plan still is the
most appropriate  remedial action for the
site or site problem, and makes the final
remedy selection  decision [see also
§ 300.515(e) for description of lead and
support agency roles during the
selection of remedy process).
   The identification of the preferred
alternative and the final remedy
selection decision are based on an
evaluation of the  major  trade-offs among
the alternatives in terms of the nine
evaluation criteria. Remedial
alternatives must be protective of
human health and the environment and
comply with ARARs (or justify a
waiver) in order to be eligible for
selection. These are the two threshold
criteria from among the nine criteria.
   The lead agency balances the trade-
offs, identified in the detailed analysis,
among alternatives with respect to long-
term effectiveness and permanence,
reduction of toxicity, mobility or volume
 through treatment, short-term
 effectiveness, implementability, and
 cost. This  initial balancing determines
 preliminary conclusions as to the
 maximum extent to which permanent
 solutions and treatment can be
 practicably utilized in a cost-effective
 manner. The preamble to the proposed
 rule referred to the criteria used for
 balancing the trade-offs as primary
 balancing criteria.
   The alternative that is protective of
 human health and the environment, is
 ARAR-compliant and affords the best
 combination of attributes is identified as
 the preferred alternative in the proposed
 plan.
                             State and community acceptance are
                           factored into a final balancing which
                           determines the remedy and the extent of
                           permanent solutions and treatment
                           practicable for the site. State concerns
                           will be factored into the proposed plan
                           to the extent they are known. However,
                           formal state comments may not be
                           received until after the state has
                           reviewed the draft RI/FS and the draft
                           proposed plan prior to the public
                           comment period. Similarly, to the extent
                           possible, community concerns will be
                           factored into the feasibility study and
                           proposed plan. However, community
                           acceptance cannot be assessed
                           definitively until the formal public
                           comment period is held.
                             Response to comments: 1. Structure
                           and consistency. Although generally
                           supporting the use of the nine criteria in
                           remedy selection, several commenters
                           expressed concern over whether the
                           balancing process ensures selection of
                           remedies that comply with the statutory
                           mandates of CERCLA. In response, EPA
                           believes that the remedy selection
                           process promulgated today effectively
                           harmonizes the somewhat competing
                           requirements of CERCLA, and ensures
                           that remedial actions will fulfill each
                           statutory mandate.
                              Specifically, some commenters wrote
                           that the absence from the rule of the
                            categories of threshold, balancing, and
                           modifying criteria described in the
                           preamble to the proposal made the
                            function of the criteria in remedy
                            selection unclear and that the proposed
                            rule did not provide sufficient practical
                            guidance on remedy selection.
                              In response, EPA has modified the
                            proposed rule to provide further
                            clarification and structure in the remedy
                            selection process. First, EPA has added
                            expectations into the rule, in order to
                            provide better guidance on the types of
                            remedies that EPA expects to consider
                            in detailed analysis, and has set out a
                            program goal and management
                            principles (§ 300.430(a)). Second, EPA
                            has added structure to the process by
                            specifying the functional categories of
                            the nine criteria—threshold, primary
                            balancing or modifying—in the remedy
                            selection portion of the rule. Third, the
                            rule emphasizes the importance of two
                            of the nine criteria—long-term
                            effectiveness and permanence, and
                            reduction of toxicity, mobility or volume
                            through treatment—in the balancing
                            process.
                               Some commenters opposed the
                            adoption of the proposed remedy
                            selection framework. These commenters
                            criticized the framework as being vague
                            and providing little guidance on the
                            weight to be afforded individual
                            selection criteria or the order in which
the criteria should be considered. The
commenters criticized the process as
likely to vary from site to site, resulting
in the selection of different remedies for
sites with similar characteristics.
According to these commenters, the
inconsistency could impair EPA's ability
to negotiate settlements with PRPs. One
commenter warned that the fluid nature
of the proposed decision-making process
will make it more difficult for states,
other federal agencies, and PRPs to
replicate. The commenter fears that EPA
will waste time second-guessing remedy
selections and justifying how a preferred
remedy was identified by a lead agency
or a PRP. These commenters requested
clear and complete directions on how to
select remedies.
  In response, EPA believes that the
basic remedy selection system as
revised presents a sound, workable
method for selecting protective remedies
while balancing the technical, economic,
and practical realities associated with
each site and with the program as a
whole to arrive at appropriate solutions.
EPA believes that flexibility is needed in
the remedy selection process precisely
because each Superfund site presents a
different set of circumstances. A rigid
set of criteria for remedy selection,
while perhaps more easily reproduced,
would not be well suited to such diverse
site circumstances, and would be less
responsive to Congress' mandate to
consider a large number of factors,
including protectiveness, permanence
and treatment, cost, effectiveness, and
state and public participation.
   At the same time, EPA agrees that
clarification is needed concerning the
role and relative importance of the
different criteria in remedy selection,
and has responded by categorizing  the
criteria by function (i.e., threshold,
balancing, and modifying), and by
identifying balancing criteria that should
be emphasized. These revisions add
structure to the process and indicate the
relative importance of the different
criteria. The inclusion of the goal,
management principles, and
expectations in the rule should also
increase national consistency by
focusing detailed analysis and remedy
 selection on fewer, more appropriate
 alternatives. EPA believes that these
 changes will make it easier for the
public to understand and anticipate EPA
 decisions.
   In addition, proposed
 § 300.430(f)(3)(iii) (§ 300.430(f)(l)(ii) (D)
 and (E) in the final rule) is revised to
 clarify the relation of the evaluation
 criteria to the statutory mandates of
 section 121 of CERCLA. Specifically, the
 regulation now states that cost-

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             federal Register / Vol. 55, No. 46 / Thursday,  March 8, 1990  / Rules  and Regulations
                                                                           61
 effectiveness is to be determined by
 comparing the costs and overall
 effectiveness of alternatives to
 determine whether the costs are
 proportional to the effectiveness
 achieved. Overall effectiveness for the
 purpose of this determination includes
 long-term effectiveness and
 permanence; reduction of toxicity,
 mobility, or volume through treatment;
 and short-term effectiveness. The
 determination of which alternative
 utilizes permanent solutions and
 alternative treatment technologies to the
 maximum extent practicable takes into
 account long-term effectiveness and
 permanence; reduction of toxicity,
 mobility, or volume through treatment;
 short-term effectiveness;
 implementability; and cost, as well as
 state and community acceptance.
  Another revision made to enhance  the
 clarity of the regulation is the direction
 at § 300.430(f)(l)(ii)(E) that special
 emphasis is to be afforded alternatives
 that offer advantages in terms of long-
 term effectiveness and permanence, and
 reduction of toxicity, mobility or volume
 through treatment, in performing the
 balancing by which the remedy is
 selected. These two criteria are given
 primary consideration in the rule and
 preamble when analyzing the relative
 merits of the alternatives. These criteria
 will be the most important,  decisive
 factors in remedy selection when the
 alternatives perform similarly with
 respect to the other balancing criteria.
 When the alternatives provide similar
 long-term effectiveness and permanence
 and reduction of toxicity, mobility or
 volume, the other balancing criteria rise
 to distinguish the alternatives and play
 a more significant role in selecting the
 remedy. For example, if two alternatives
 offer similar degrees of long-term
 effectiveness and permanence and
 reduction of toxicity, mobility or volume
 through treatment, but one alternative
 would require more time to  complete
 and would have greater short-term
 impacts on human health and the
 environment, the decision-maker would
 focus on the distinctions between the
 alternatives under the short-term
 effectiveness criterion.
  One commenter  stated that remedies
 should be evaluated on a national basis,
 rather than a site-specific basis to, at  a
minimum, determine the relative
 importance of each of the nine criteria.
According to this commenter, site-
 specific remedy selection using
balancing leads to  nationally
inconsistent remedies and hides from
public view the remedy selection
process. A different commenter argued
 that site-specific factors should
 dominate the remedy selection process.
   EPA believes that today's
 modifications to the proposal clarify the
 remedy selection process and help
 ensure that consistent remedies are
 selected. The remedy selection process
 in today's rule, shaped by the program
 goal and expectations, promotes
 national consistency while allowing
 consideration of important site-specific
 factors. In addition, EPA is developing
 guidance on expected remedies for
 specific types of sites [e.g., municipal
 landfills) and specific types of waste
 (e.g., PCBs) that will assist in
 streamlining decision-making and
 promoting greater consistency.
   One commenter suggested that the
 selection process focus on the risk
 reduction provided by the alternatives
 and the cost-effectiveness of each
 alternative. EPA agrees with the
 commenter that risk reduction and cost-
 effectiveness are major considerations
 in selecting remedial actions. The
 amount of residual risk remaining after
 implementation of the remedy is
 analyzed under the long-term
 effectiveness and permanence criterion
 in the detailed analysis. The trade-offs
 associated with this criterion are
 balanced with the other criteria when
 selecting a remedy. However, today's
 rule affords extra significance  to the
 trade-offs associated with the "long-
 term effectiveness and permanence"
 and "reduction q£toxicity, mobility or
 volume through treatment" criteria when
 comparing the attributes associated with
 the alternatives.
   One commenter noted that EPA had
 omitted in the proposal a reference to
 the statute's bias against off-site land
 disposal of untreated waste. EPA notes
 the omission and has changed proposed
 § 300.430(f)(3)(iii) (§ 300.430(f)(l)(ii)(E)  in
 the final rule) to clarify that an
 alternative that relies  on the off-site
 transport and land disposal of untreated
 hazardous substances will be the least
 favored alternative where practicable
 treatment technologies are available, as
 determined by analysis using the nine
 criteria. EPA notes that CERCLA does
 not express a preference for or bias
 against off-site remedies involving
 treatment and that the NCP is similarly
 neutral.
  Many commenters felt that protection
 of human health and the environment
 was appropriately established as a
 threshold criterion. One commenter
requested that protectiveness be clearly
identified as the dominant criterion for
 evaluating responses conducted by
PRPs. Another commenter felt that the
proposed NCP did not make it clear that
 the protection of human health and the
 environment must be met at a minimum
 by all remedies.
   Section 121 of CERCLA makes clear,
 and the legislative history confirms, that
 the overarching mandate of the
 Superfund program is to protect human
 health and the environment from the
 current and potential threats posed by
 uncontrolled hazardous waste sites.
 This mandate applies to all remedial
 actions and cannot be waived. This
 priority has been reflected in the rule by
 including protection as a threshold
 criterion that must be satisfied by all
 remedies selected under CERCLA
 (§ 300.430(f)(l)(ii)(A)).
   One commenter noted that, in general,
 if there will be significant exposure
 during implementation of the remedy,  a
 remedial option that can be
 implemented quickly is preferable, in
 terms of the short-term protection it
 affords, to  one that can only be
 implemented slowly but provides
 greater long-term effectiveness. EPA
 responds by cautioning against over-
 generalization and attempting to create
 too rigid a  formula for remedy selection.
 EPA agrees that unacceptable short-
 term impacts can cause an alternative to
 be  considered non-protective of human
 health and the environment and can
 remove that alternative from
 consideration as a viable option.
 However, in this example, the remedy
 that is less effective in the short-term
 (i.e., takes longer to implement) also
 provides greater long-term effectiveness
 than the remedy without unacceptable
 adverse short-term impacts. In this
 situation, generally EPA would evaluate
 the possible measures available to
 mitigate the short-term impacts and thus
 allow the alternative to be protective
 during implementation. This alternative,
 in other words, would not immediately
 be ruled out, due to its positive
 performance under the long-term
 effectiveness and permanence criterion.
  One commenter cautioned that the
 threshold criteria should not be overly
restrictive,  i.e., must not include overly
 conservative safety factors. EPA
believes it uses a sound, reasonable
 approach in judging the'overall
protection afforded by a remedial
alternative. (See preamble description  of
 § 300.430(e) for a complete discussion of
evaluating risks associated with
potential alternatives.) As for the
requirement to meet ARARs, EPA is
simply following the mandate in the
statute that on-site remedies selected
under CERCLA section 121 must meet
all "applicable" and "relevant and
appropriate" requirements of federal
and state environmental laws, unless a

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62          Federal Register / Vol. 55, No. 46 / Thursday, March  8, 1990 / Rules and Regulations
waiver Is appropriate under the
conditions set out in CERCLA section
121(d)(4). EPA has discretion to
determine whether any, all, or only a
portion of a requirement is relevant and
appropriate, consistent with the factors
set out in final rule § 300.400(g)(2);
however, once determined to be
relevant and appropriate, all relevant
and appropriate portions of the
requirement must be applied as though
they were applicable (again, unless a
waiver is available).
  Some commenters concluded that
since Congress did not list compliance
with ARARs as one of the remedy
selection criteria in section 121(b), this
criterion should not be considered a
threshold criterion. In addition, some
commented that protection of human
health and the environment should
receive more emphasis than compliance
with ARARs. EPA believes that
CERCLA section 121(d)(2)(A)
establishes compliance with ARARs as
a threshold criterion for remedy
selection. That section requires the
selection of a remedial action that "at
least attains such legally applicable  or
relevant and appropriate standard,
requirement, criteria, or limitation"
 (subject to waivers in CERCLA section
121(d)(4)). In some situations compliance
with ARARs may not result in protective
 remedies because of exposure to
 multiple chemicals or through multiple
 exposure pathways that have additive
 or synergistic effects. In this case a
 remedy may need to achieve levels more
 stringent than the ARARs to ensure
 protection.
   One commenter argued that since
 different remedies must meet different
 ARARs and, because meeting some
 ARARs precludes meeting other ARARs,
 some site cleanups will not be able to
 meet all ARARs. Another commenter
 sought clarification on comparing
 alternatives when different ARARs  are
 identified and questioned how EPA
 would prioritize alternatives if none
 meets all the identified ARARs.
   In response, EPA notes that in the
 detailed analysis, each alternative is
 evaluated individually to determine if
 the alternative will be ARAR-compliant.
 Each alternative will possess its own set
 of ARARs, and frequently ARARs for
 one alternative will not be ARAR for
  another alternative for the same site
  (e.g., an incineration alternative may
 have air emissions ARARs not
  applicable to a bioremediation
  alternative). Alternatives need only
  attain requirements that are applicable
  or relevant and appropriate for that
  alternative, not all ARARs identified for
  any alternative at the site. Alternatives
that cannot meet all of their respective
ARARs must justify a waiver under
CERCLA section 121(d)(4) (final rule
§ 300.430(fJ(l)(ii)(C)) for each
requirement that will not be met in order
for that alternative to be eligible for
selection as the remedial action.
Alternatives involving ARAR waivers,
of course, must also provide adequate
protection of human health and the
environment in order to be eligible for
selection as the remedy.
  2. Role of cost in cost-effectiveness
determination. The appropriate role of
cost in remedy selection has been a
controversial issue. EPA received
questions concerning the weight
afforded each of the criteria,  including
cost, when balancing the trade-offs
among the  criteria. Under the proposal
and today's rule, cost is considered in
making two statutory determinations
required for selected remedies: that the
remedy is cost-effective (i.e., the remedy
provides effectiveness proportional to
its cost) and that it utilizes permanent
solutions and treatment to the maximum
extent practicable. The comments that
address the role of cost in the cost-
effectiveness determination are
discussed first.
   According to several commenters,
Congress clearly intended that remedies
would be selected based on the
protectiveness afforded by the
alternative and cost would be used only
to select from among protective
alternatives. A different commenter
 argued that the cost-effectiveness
mandate must be used to ensure that
 remedial actions, which must be
 protective of human health and the
 environment, ARAR-compliant, and
 utilize permanent solutions and
 alternative treatment technologies or
 resource recovery technologies to the
 maximum extent practicable, achieve
 these mandates at the lowest possible
 cost.
   EPA agrees that cost can only be
 considered in selecting a remedy from
 among protective alternatives. The
 remedy selection process requires that
 alternatives must be demonstrated to be
 protective and ARAR-compliant (or
 justify a waiver) in order to be eligible
 for consideration in the balancing
 process by which the remedy is
 selected. This sequence of steps ensures
 that the selected remedy will be
 protective of human health and the
 environment and that protection of
 human health and the environment will
 not be compromised by other selection
 factors, such as cost. Several
  commenters supported the proposed
 remedy selection process believing it
  ensures the selection of a cost-effective
remedy while at the same time not
affording an overly dominant role to
cost.
  Some commenters argued that cost
should only be used to implement a
selected, protective remedy in the most
cost-efficient manner, i.e., that cost-
effectiveness should only be considered
after the remedy has been selected to
allow implementation in the least costly
manner. The commenters assert that
their interpretation follows from the
statute and the legislative history.
Another commenter asserted that cost-
effectiveness primarily is a check to
prevent unreasonable expenditures and
to ensure remedies are implemented in a
cost-efficient (and not necessarily the
lowest cost) manner.
   In response, EPA believes that cost is
a relevant factor for consideration as
part of the  selection of the remedy from
among protective, ARAR-compliant
alternatives, and not merely as part of
the implementation phase. EPA believes
this position is consistent with both the
statute and legislative history.
   CERCLA, at section 121(a), states that
"the President shall select appropriate
remedial actions  *  *  *  which are in
accordance with this section and, to the
extent practicable, the national
contingency plan, and which provide for
 cost-effective response." Thus, cost-
 effectiveness is established as a
 condition for remedy selection, not
 merely as a consideration during
 remedial design and implementation.
 Further in  the statute, at section
 121(b)(l), Congress again repeats the
 requirement that only cost-effective
 remedies are to be selected, as
 follows:"The President shall select a
 remedial action that is protective of
 human health and the environment, that
 is cost effective, and that utilizes
 permanent solutions and alternative
 treatment  * * *  to the maximum
 extent practicable." Again, cost-
 effectiveness is cited along with
 protectiveness as a key factor to
 consider in selecting the remedy. EPA
 believes that the statutory language
 supports the use of concepts of "cost"
 and "effectiveness" in this rule's nine
 evaluation criteria that provide the basis
 for the remedy selection decision, rather
 than as factors to be applied after the
 remedy has been selected.
   EPA believes that this approach is
  also in line with the legislative history
 underlying the SARA Amendments,
  which added section 121 to CERCLA.
  The Conference report on SARA
  discussed the concept of cost-
  effectiveness, and specifically approved
  of the approach to cost-effectiveness
  taken by EPA in the 1985 NCP:

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             "Federal Register / Vol. 55, No. 46 /  Thursday. March 8, 1990 / Rules and Regulations
                                                                              63
 The provision that actions under both
 sections 104 and 106 must be cost-effective is
 a recognition ofEPA's existing policy as
 embodied in the National Contingency Plan.
 H.R. Rep. 962, 99th Cong., 2d Sess. 245
 (1986] (emphasis added).
   Specifically, the 1985 NCP required
 that:

 in selecting the appropriate extent of remedy
 from among the alternatives that will achieve
 adequate protection of public health and
 welfare and the environment in accordance
 with 300.68(i)[l), the lead agency will
 consider cost, technology, reliability,
 administrative and other concerns, and their
 relevant effects on public health and welfare
 and the environment.

 40 CFR 300.68(i)(2) (emphasis added).
 Thus, the 1985 NCP provided that cost
 should be a factor in the selection of a
 remedy, and emphasized that cost may
 be used to select "among" those
 alternatives that are protective;
 significantly,  the 1985 rule does not
 contemplate a unique protective remedy
 in most cases, for which cost would
 simply be used to decide on possible
 implementation mechanisms.
   The preamble to the 1985 NCP goes on
 to explain in more detail the role of cost
 in that rule:
  The approach embodied in today's rule is
 to select a cost-effective alternative from a
 range of remedies that protects the public
 health and welfare and the environment.
 First, it is clear that if all the remedies
 examined are equally feasible, reliable, and
 provide the same level of protection, the lead
 agency will select the least expensive
 remedy. Second, where all factors are not
 equal, the lead  agency must evaluate the cost,
 level of protection, and reliability of each
 alternative. In evaluating the cost of remedial
 alternatives, the lead agency must consider
 not only immediate capital costs, but also the
 costs of operating and maintaining the
remedy for the period required to protect
public health and welfare and the
 environment. For example, the lead agency
might select a treatment or destruction
 technology with a higher capital cost than
long-term containment because treatment or
 destruction might offer a permanent solution
 to the problem.
 *****
  Finally, the lead agency would not always
select the most protective option, regardless
of cost. The lead agency would instead
consider costs,  technology, reliability,
administrative and other concerns, and their
effects on public health and welfare and the
environment. This allows selection of an
alternative that is the most appropriate for
the specific site in question.
50 FR at 47921 (Nov. 20,1985) (emphasis
added).
  Today's rule continues the approach
embodied in the 1985 NCP, although
some of the terminology has changed.
First, the approach promulgated today
requires that alternatives are
 determined to be adequately protective
 and ARAR-compliant before cost-
 effectiveness is considered in remedy
 selection (see § 300.430(f)(l)(ii)(D)).
 Second, today's rule recognizes that a
 range of alternatives can be protective
 and ARAR-compliant, and that cost is a
 legitimate factor for choosing among
 such alternatives.
   The 1985 NCP based the cost-
 effectiveness determination on
 technology, reliability, administrative,
 and other concerns and their effects on
 public health and welfare and the
 environment. Today's rule considers
 basically the same factors but has recast
 them to reflect CERCLA's preferences
 and mandates. For example, technology
 is considered under the criterion of
 reduction of toxicity, mobility, or volume
 through treatment for treatment
 performance; long-term effectiveness
 and permanence for residuals, and
 short-term effectiveness for adverse
 impacts. Reliability of treatment
 technology is considered under
 reduction of toxicity, mobility, or volume
 through treatment.  Reliability of long-
 term management controls used to
 address treatment residuals is
 considered under long-term
 effectiveness and permanence. Effects of
 alternatives on protection of human
 health and the environment is
 considered under short- and long-term
 effectiveness. Administrative and other
 concerns are replaced by the
 implementability criterion, which is not
 considered in determining cost-
 effectiveness but is used in determining
 the extent to which permanent solutions
 and treatment can be practicably
 utilized, along with state and community
 acceptance.
  In addition to endorsing the 1985 NCP
 approach to cost-effectiveness, the
 SARA Conference Report went on to
 discuss the Conferees' view of the role
 of cost-effectiveness in the remedy
 selection process:
  The term "cost-effective" means that in
 determining the appropriate level of cleanup
 the President first determines the appropriate
 level of environmental and health protection
 to be achieved and then selects a cost-
 efficient means of achieving that goal. Only
 after the President determines, by the
 selection of applicable or relevant and
 appropriate requirements [ARARs], that
 adequate protection of human health and the
 environment will be achieved, is it
 appropriate to consider cost-effectiveness.
H.R. Rep. 962, 99th  Cong., 2d Sess. 245
 (1986).
  As the Conference Report
contemplated, where there is an
applicable or relevant and appropriate
requirement (ARAR) that defines the
 "appropriate level of environmental and
 health protection to be achieved," e.g., a
 Maximum Contaminant Level (MCL) for
 ground water, EPA will select an
 appropriate and cost-efficient
 technology for achieving that level
 under today's rule.10 If two or more
 alternatives are determined to be
 comparably effective in achieving that
 MCL standard and level of protection,
 the least costly of the alternatives would
 be selected as the cost-effective solution
 under today's rule.
   However, the situation is often more
 complicated.  Indeed, in most cases,
 there will not be one level or standard—
 e.g., one contaminant-specific ARAR—
 that defines protectiveness, but rather,
 there will be  a range of protective,
 ARAR-compliant alternatives eligible
 for selection that vary in their costs and
 effectiveness.
   There are two principal reasons for
 this. First, ARARs are not available in
 all situations. Contaminant-specific
 ARARs have  been promulgated for a
 small percentage of contaminants,11 and
 even if contaminant-specific ARARs
 were available for some relevant
 substances, they generally do not define
 protective levels for contaminated soils
 nor do they always define protective
 levels for mixtures of chemicals (typical
 Superfund site situations). Thus, EPA
 must evaluate additional information to
 determine what remedies would protect
 human health and the environment; the
 answer,  as reflected by this final rule's
 definition of an acceptable  risk "range,"
 is that there are generally a range of
 remedies that may be protective.
   The second major reason that there
 will not be one level or standard that
 defines protectiveness in most cases, is
 that the NCP requires the development
 of alternatives that represent distinct
.strategies for  cleaning up the site or site
 problem. These alternatives will achieve
 protection of human health  and the
 environment through different methods
 (e.g., treatment, Containment) or
 combinations of methods and will often
 involve different ARARs, particularly
 action-specific requirements.12 (As
  10 See final rule § 300.430(f)(l)(ii)(D), which
provides that only after an alternative is found to be
"protective and ARAR-compliant," is the alternative
evaluated based on cost or other balancing factors.
  1 * For example, although there are a large number
of hazardous substances that may contaminate the
ground water, final MCL levels have only been
promulgated for approximately 31 chemicals
(assuming "radionuclides" are grouped, and
considered to be one chemical). See 40 CFR 141.11-
141.16; 40 CFR 141.61-141.62; and 54 FR 27567 (June
29,1989).
  12 Location-specific ARARs and action-specific
ARARs are discussed in more detail in the preamble
to the proposed NCP, 53 FR at 51437 (Dec. 21,1988).

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            Federal Register  /  Vol. 55, No. 46 / Thursday, March 8,  1990 / Rules and Regulations
noted above, e.g., incineration may have
a potential ARAR relating to air
emissions that a chemical treatment
option would not.) Different methods of
protection typically will vary in their
costs and effectiveness [e.g., treatment
residuals, short-term impacts). Where
costs and effectiveness vary among
protective and ARAR-compliant
alternatives, it is necessary to evaluate
the relationship of costs to effectiveness
within and across alternatives to
identify which options afford overall
effectiveness proportional to their costs.
  EPA believes that the intent of the
SARA Conference Report was to make
clear that cost-effectiveness cannot be
used to justify selection of a remedy that
does not protect human health and the
environment. By following the approach
of the 1985 NCP, and by considering
cost-effectiveness only after EPA has
identified protective remedial options,
EPA believes its approach is consistent
with the objectives and intent of
Congress.
  Some commenters urged that EPA
highlight cost in the remedy selection
process, elevating cost-effectiveness to a
 threshold criterion, in recognition of the
mandate for cost-effective remedies.
 Several commenters suggested several
reasons why cost-effectiveness should
 be considered  a threshold criterion. One
 commenter stated that the legislative
 history indicates that cost-effectiveness
 should be a threshold. Another
 commenter indicated that cost is
 considered throughout the FS and is the
 only truly objective criterion of the nine
 and that, in practice, EPA has made its
 decisions with cost as a primary
 consideration. Another commenter
 sought explicit confirmation in the rule
 that regardless of how the five factors
 balance out, only cost-effective
 remedies may be selected. Other
 commenters wanted clarification
 concerning the weight afforded each of
 the criteria, including cost, when
 balancing the  trade-offs among the
 criteria.
    In response to the comments urging an
 increased role of cost or requesting
 clarification on the role of cost, EPA
 notes that it has established cost as one
 of the evaluation criteria in the detailed
 analysis and that the final rule explains
 more clearly how cost is to be
  considered in determining cost-
  effectiveness  and the practicable extent
  to which permanent solutions and
  treatment can be used.
    EPA agrees that cost-effectiveness is
  like the two threshold criteria in that it
  is a statutory requirement with which an
  alternative must comply in order to be
  eligible for selection as the remedy. The
  statutory finding of cost-effectiveness is
not "balanced," with any other statutory
requirement, but rather certain
evaluation criteria are balanced to reach
the conclusion that the remedy is cost-
effective. More than one alternative can
be cost-effective.
  EPA has decided, however, not to
establish cost-effectiveness as a
threshold finding largely due to the
sequence in which the statutory findings
are made. When EPA begins the
selection step, information is readily
available from the detailed analysis to
determine immediately which
alternatives are protective and ARAR-
compliant and therefore eligible for
selection. The focus of the remedy
selection process from this point
forward is on drawing conclusions
about the distinguishing differences
among eligible options to determine
which alternative represents the
maximum extent to which permanent
solutions and treatment can be utilized
in a cost-effective manner. The findings
of cost-effectiveness and the extent to
which permanent solutions and
treatment are practicable both derive
from the balancing of these differences
or tradeoffs.
   Commenters asked EPA to clarify the
measure of effectiveness used in the
determination that costs are
proportional to an alternative's overall
 effectiveness. Overall effectiveness,  as
used in the cost-effectiveness
 determination, is a composite of long-
 term effectiveness and permanence;
 reduction in toxicity, mobility or volume
 of the hazardous substances through
•treatment; and short-term effectiveness.
 The relationship between overall
 effectiveness and cost is examined
 across all the alternatives to identify
 which options afford effectiveness
 proportional to their cost.
   Because some commenters were
 confused by the description of cost-
 effectiveness in proposed
 § 300.430(f)(4)(ii)(D) ("the remedy
 provides overall effectiveness
 proportional to its costs"), EPA believes
 that it is necessary to better express its
 intent. This description of cost-
 effectiveness is in final
 §§ 300.430(f)(l)(ii)(D) and
 300.430(f)(5)(ii)(D).
    EPA uses the term "proportional"
 because it intends that in determining
 whether a remedy is cost-effective, the
 decision-maker should both compare the
 cost to effectiveness of each alternative
 individually and compare the cost and
 effectiveness of alternatives in relation
 to one another (see 53 FR 51427-28). In
 analyzing an individual alternative, the
 decision-maker should compare, using
 best professional judgment, the relative
 magnitude of cost to effectiveness of
that alternative. In comparing
alternatives to one another, the
decision-maker should examine
incremental cost differences in relation
to incremental differences in
effectiveness. Thus, for example, if the
difference in effectiveness is small but
the difference in cost is very large, a
proportional relationship between the
alternatives does not exist. The more
expensive remedy may not be cost-
effective. EPA does not intend, however,
that a strict mathematical
proportionality be applied because
generally there is no known or given
cost-effective alternative to be used as a
baseline. EPA believes, however, that  it
is useful for the decision-maker to
analyze among alternatives, looking at
incremental differences.
  EPA believes that using the term
"proportional" describes well this type
of multidimensional analysis. Using
such an analysis should enable the
decision-maker to determine whether  an
alternative represents a reasonable
value for the money; more than one
alternative may be  considered cost-
effective.
   In response to the comment that cost
should be used to distinguish between
comparably protective remedies, EPA
notes that many alternatives will be
protective but will achieve that
protection through different methods or
 combinations of methods, such that the
 commenter's characterization of
 alternatives as "comparably protective"
 may not be appropriate (though all
 alternatives may be protective).
 However, alternatives may emerge from
 the detailed analysis as  comparably
 "effective," in terms of the three
 effectiveness criteria of long-term
 effectiveness and permanence,
 reduction of toxicity, mobility or volume
 through treatment and short-term
 effectiveness; in that event, the least
 costly of the comparably effective
 alternatives would be identified as cost-
 effective while  the others would not.
 However, because the remedy selection
 process usually involves consideration
 of a range of distinct alternatives that
 generally vary in their effectiveness and
 cost, most often a comparative analysis
 of the relationship between .the overall
 effectiveness of the alternatives and
 their costs will be required to determine
 which alternatives are cost-effective
  (i.e., provide  overall effectiveness
 proportional  to their costs).
    One commenter suggested adding the
  following to proposed § 300.430(f)(3):
  "Remedies selected shall be cost-
  effective relative to other alternatives.
  In evaluating the cost-effectiveness of
  proposed alternatives, EPA shall take

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             federal Register / Vol.  55. No. 46 / Thursday,  March 8, 1990  / Rules  and Regulations
                                                                           65
 into account the total short- and long-
 term cost of such actions, including the
 costs of operation and maintenance for
 the entire period during which such
 activities will be required. A cost-
 effective remedy is one with costs
 proportional to the remedy's overall
 effectiveness."
   EPA has not incorporated the entire
 suggested statement into the rule. EPA
 believes the commenter's statement is
 too narrow, because several types of
 costs are factored into the evaluation of
 the cost of the remedy during the
 detailed analysis. These costs include,
 but are not limited to, the direct and
 indirect costs identified by the
 commenter. Also, the language does not
 reflect that overall effectiveness
 involves a composite of effectiveness
 factors, i.e., long-term effectiveness and
 permanence, toxicity, mobility or
 volume reduction through treatment,
 and short-term effectiveness. EPA does
 agree with the commenter that a cost-
 effective remedy is one with costs
 proportional to the remedy's overall
 effectiveness. A more detailed
 discussion of the types of costs that may
 be considered is included in EPA's RI/
 FS guidance (cited above).
   One commenter argued that because
 the requirement  that all remedies be
 cost-effective is unconditional, should
 EPA select a remedy requiring treatment
 techniques that are more stringent than
 health based ARARs or the 10"4 to 10~6
 acceptable risk range, EPA must
 demonstrate the ability of the
 techniques to provide meaningful and
 necessary risk reductions at a
 reasonable cost. Although EPA
 generally will not select a remedial
 action specifically to achieve a risk level
 below 10"6 (e.g.,  10"7), technology used
 in implementing  the selected remedy
 could actually achieve additional risk
 reduction (e.g., 10"7). EPA agrees with
 the commenter that as with any remedy
 selected under CERCLA section 121, a
 remedy selected with a risk level below
 10"6must be cost-effective (and meet
 the other requirements of section 121).
  Another commenter suggested that
 EPA add language to the rule stating
 that EPA shall select a remedy with
 associated risk lower than 10" 4 only
 when necessary for protection of human
 health or the environment or compliance
 with ARARs, or if EPA can demonstrate
 that such risk reductions can be
 achieved at a reasonable cost. In
response, EPA explains that once levels
 are established for carcinogens that will
 satisfy ARARs, EPA will consider
 cumulative or synergistic effects from
multiple contaminants or multiple
exposures. For carcinogens without
 ARARs, 10"6 is a point of departure from
 which technical, uncertainty and
 exposure factors are used to establish
 preliminary remediation goals, which
 include a target risk level. Final
 remediation goals are determined in the
 remedy selection decision by balancing
 the major trade-offs among the
 alternatives based on the evaluation
 criteria (as described in
 § 300.430(f)(l)(ii)), which will establish
 the specific level within the acceptable
 risk range the remedy will be designed
 to achieve. (See preamble discussion
 above on risk range.)
   One commenter requested
 clarification that the cost-effectiveness
 requirement applies equally to Fund-
 financed and PRP-financed remedies.
 However, several other commenters
 asserted that the cost-effectiveness
 requirement pertains only to remedies
 that EPA intends to seek from PRPs or to
 fund itself. When the PRPs are
 proposing a remedy, according to these
 commenters, cost-effectiveness is a
 matter only for the PRPs, not the
 government.
   EPA provides the following
 clarification. The statutory requirement
 that each remedy selected be cost-
 effective applies to all Fund-financed as
 well as all PRP-financed remedies under
 CERCLA.
   3. Cost and practicability. Some
 commenters requested clarification of
 the proper analysis of trade-offs
 between cost-effectiveness and the
 practical limitations of treatment
 technologies on one hand, and the
 mandate to utilize treatment to the
 maximum extent practicable on the
 other. In addition, one commenter wrote
 that the proposed process blurs the two
 concepts of cost-effectiveness and
 practicability. Some commenters noted
 that cost must be considered in
 determining what is "practicable." EPA
 responds that cost is considered in
 making both findings as are certain
 other criteria. Cost is considered in
 determining cost-effectiveness to decide
 which  options offer a reasonable value
 for the money in light of the results  they
 achieve. Cost differences must also be
 considered in the context of all other
 differences between alternatives to
 reach a conclusion as to which
 alternative, all things considered,
 provides the most appropriate solutions
 for the site or site problem. It is this
 judgment that determines the maximum
 extent  to which permanent solutions
 and treatment are practicable for the
 site or  site problem being addressed.
 Criteria other than cost that are also
used to make both findings are long-
term effectiveness and permanence,
 reduction in toxicity, mobility or volume
 through treatment, and short-term
 effectiveness. However, the
 determination of "practicability" also
 takes into account the implementability
 of the remedy and state and community
 acceptance.
   In response to the comment that EPA
 may not select a non-permanent remedy
 if a permanent remedy is practicable,
 EPA notes that the final balancing by
 which the remedy is selected decides,
 from among protective, cost-effective
 alternatives, the extent to which
 permanent solutions and treatment are
 practicable for the site. EPA must select
 an alternative providing the maximum
 permanence and treatment practicable.
 EPA uses the balancing and modifying
 criteria to determine what is practicable.
 A commenter indicated that PRPs must
 be required to clean up the released
 hazardous substances to the maximum
 extent practicable. EPA agrees; PRP
 cleanups are subject to the same
 standards as Fund-financed remedial
 actions.
   Several commenters addressed
 specifically the statutory mandate to
 utilize permanent solutions and
 alternative treatment technologies or
 resource recovery technologies to the
 maximum extent practicable. One
 commenter suggested establishing this
 statutory mandate as'a threshold
 criterion. Similarly, another commenter
 argued that since the concepts of
 protection of human health and the
 environment, cost-effectiveness, and the
 preference for permanent solutions and
 alternative treatment technologies or
 resource recovery technologies are
. specifically grouped together by
 Congress, these criteria should be
 balanced with each other in the same
 context in the remedy selection process
 of the NCP. The commenter urged
 elimination of the distinctions between
 the threshold and primary balancing
 criteria.
   EPA believes that it has established
 an appropriate process for addressing
 all these provisions, first by identifying
 protective, ARAR-compliant
 alternatives eligible for selection, and
 then by balancing tradeoffs among
 alternatives with respect to the other
 pertinent criteria to identify a cost-
 effective alternative that utilizes
 permanent solutions and alternative
 treatment technologies or resource
 recovery technologies to the maximum
 extent practicable. EPA does not believe
 that it is possible or appropriate to
 address the mandate to utilize
 permanent solutions and treatment to
 the maximum extent practicable as an
 evaluation criterion because this

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66
Federal  Register / Vol. 55, No. 46  /  Thursday, March 8, 1990 / Rules and Regulations
mandate represents a conclusion
reached about a remedy on the basis of
several evaluation factors.
  Some commenters stressed that the
statute does not require permanent
solutions or treatment in all cases.
Another commenter argued different
criteria should be applied if EPA
determines that a site is "beyond
technical and economic remediation."
EPA agrees that under CERCLA, the
requirement to select permanent
solutions and treatment technologies is
qualified by practicability. This concept
ensures selection of remedies
appropriate to the site problems.
  Some commenters noted that cost
must be considered in determining what
is "practicable." As discussed above,
the cost of the remedy is among the
factors considered in determining the
use of permanent solutions and
treatment to the maximum extent
practicable.
  4. State and community acceptance.
One comment believed state and
community acceptance were
appropriately categorized as modifying
criteria. This commenter concluded that
in the statute Congress did not afford
the same weight to state and community
acceptance as the other criteria. Another
commenter felt that the proposal
afforded too much weight to state and
community acceptance and that these
interests would exercise undue
influence over the selection of a remedy.
EPA disagrees with the latter comment.
 CERCLA calls for meaningful state and
 community involvement in selecting the
 remedial action. See, e.g., sections 117
 and 121(f) of CERCLA. Today's rule
 provides a framework for such
 involvement. EPA notes, however, that
 information on state and community
 acceptance generally will not be
 complete until comments are received
 on the proposed plan. Once all
 comments are evaluated, state and
 community acceptance may prompt
 modifications to the preferred remedy
 and are thus designated modifying
 criteria. In no case will EPA sacrifice
 protection to achieve state and
 community acceptance.
   Several commenters suggested that
 consideration of state acceptance as a
 modifying criterion did not adequately
 take into account state concerns in
 remedy selection. One commenter
 stated that the proposed approach
 would likely result in state input not
 being factored in until the ROD was
 being prepared, which would be too late
 for addressing serious concerns. For this
 reason, one commenter suggested
 making state acceptance a primary
 balancing criterion.
                             EPA believes that the process as
                           proposed adequately addresses state
                           interests. Often, a state agency may be
                           the lead agency for RI/FS activities at a
                           site, directly developing, in consultation
                           with EPA, the alternatives that will be
                           analyzed in detail, and the option that
                           will be put forward as the preferred
                           alternative in the proposed plan. When
                           EPA is the lead agency, states
                           participate as the support agency and
                           are involved in these same decisions.
                           The rule provides for consideration of
                           state concerns throughout the remedial
                           process, noting that such concerns
                           should be reflected, to the extent
                           possible, in the proposed plan. However,
                           the rule acknowledges that the
                           assessment of state concerns may not be
                           completed until after the formal public
                           comment period has been held and,
                           therefore, highlights consideration of
                           this criterion in the final remedy
                           selection decision.
                              EPA received comments urging
                           express recognition that Indian tribes
                           have the opportunity,  along with states,
                           to review draft RI/FS  reports prior to
                           public review. These commenters
                           requested that EPA afford substantial
                           deference to Indian tribe and state
                           comments on the RI/FS workplan, the
                           ROD and regarding ARARs. In response,
                           EPA notes that § 300.515[b) allows
                           Indian tribes to be treated the same as
                            states in the remedial process if certain
                            conditions are met, thus ensuring the
                            Indian tribes have the opportunity to
                            review and comment  on significant
                            documents such as RI/FSs and RODs.
                            EPA recognizes the substantial role that
                            states and Indian tribes play in the
                            remedial process and does not believe
                            further emphasis is necessary in the
                            remedy selection portion of the rule.
                              Several commenters argued that
                            community acceptance is a significant
                            criterion and should have more
                            influence in alternatives evaluation and
                            remedy selection. These commenters
                            urged that this criterion be made a
                            primary balancing criterion. The
                            commenters felt that  community, as well
                            as state concerns, should be considered
                            throughout the remedial process,
                            highlighting in their comments the desire
                            to participate in the development of RI/
                            FS workplans and to  participate in the
                            detailed analysis. Similar to the
                            concerns expressed on the role of state
                            acceptance, some commenters
                            cautioned that if community acceptance
                            is addressed only at the ROD stage, lack
                            of acceptance could result in serious
                            conflict between EPA, the state and the
                            community.
                              EPA agrees that community
                            acceptance is extremely important and
has established a Superfund community
relations program to facilitate
communication between the community
and the lead and support agencies. To
the degree that community acceptance
of the alternatives is known at the time
of the proposed plan, it will be taken
into account in the development of the
plan. Additionally, the public may
access the administrative record
throughout the remedial process and
may voice concerns to the lead agency
regarding the contents of the documents
contained in the record at any time.
   Due to the fact that information with
respect to this factor generally will not
be complete until after the official public
comment period, EPA has not  included
community acceptance as a primary
balancing criterion. A  correct
assessment of community acceptance
necessarily is based on hearing from the
community as a whole. Accordingly,
EPA believes it would be premature to
address this factor conclusively prior to
the public comment period,  during
which EPA may hear from citizens who
have not been vocal earlier during the
RI/FS process. Although community
acceptance is not addressed as early as
the primary balancing factors, which
serve as the principal  basis for
determining the preferred alternative, it
nonetheless is an important factor in
EPA's final remedy selection decision. If
community acceptance is known earlier,
it can be a factor in determining the
preferred alternative.
   In reference to the five-year review,
 two commenters generally endorsed
 EPA's interpretation of the  statutory
 provision in the preamble that calls for a
 five year review whenever  the selected
 remedy will leave wastes on site above
 levels that allow for unlimited use and
 unrestricted exposure. One commenter
 agreed that the five year review should
 focus on whether the remedy is still
 protective and should consist of an
 examination of monitoring  data rather
 than new field investigations. Another
 commenter said that the five year
 review should also examine new
 technologies that may have been
 developed since the remedy was
 implemented, to the extent the remedy is
 not protective. Generally, EPA agrees
 with these comments, and guidance is
 under development to define  the five-
 year review. EPA agrees that the review
 should generally focus on monitoring
 data, where available, to evaluate
 whether the remedy continues to
 provide adequate protection of human
 health and the environment. New
 technologies will be considered where
 the existing remedy is not protective,
 but the five-year review is not intended

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            Federal Register / Vol.  55. No. 46 / Thursday,  March 8, 1990  / Rules and Regulations
as an opportunity to consider an
alternative to a protective remedy that
was initially selected.
  As provided in CERCLA section
120(e)(4), for federal facility sites subject
to interagency agreements (lAGs) under
CERCLA section 120, the selection of a
remedial action shall be "by the head of
the relevant department, agency or
instrumentality and the Administrator
[of EPA] or, if unable to reach agreement
on selection of a remedial action,
selection by the Administrator." This
provision is incorporated in the final
rule at § 300.430[f](4)(iii). EPA notes that
where there are disagreements, EPA
may invoke the process provided for
under E.0.12580, section 10(a), to
facilitate resolution of issues, or a
dispute resolution process may be
specified in the IAG itself. In any case,
however, the final remedy selection
decision will be reserved for the EPA
Administrator, consistent with CERCLA
sections 120(e)(4) and 120(g).
  Final rule: Section 300.430(f), the
selection of remedy section of the final
rule, has been substantially revised from
the proposed rule in response to
comments received. Many of these
changes reflect EPA's attempt to clarify
the role of the nine criteria during the
remedy selection process and how the
selected remedy complies with the
statutory requirements for Superfund
remedies. The promulgated rule also
clarifies the role of the proposed plan
(§§ 300.430{f)(l}(ii) and 300.430(f)(2}) and
the final remedy selection
(§ 300.430(f){4)), taking into
consideration state and community
acceptance of the proposed plan.
  1. The rule promulgated today moves
the discussion of the hierarchy of
criteria in remedy selection from the
detailed analysis of alternatives section
of the proposal rule to the selection of
remedy section in the final rule
(§ 300.430(f)(l)(i)). The hierarchy
established in today's rule represents an
important change from the hierarchy
described in the preamble to the
proposed rule. This change makes clear
that overall protection of human health
and the environment and compliance
with ARARs (unless grounds for
invoking a waiver is provided) are
threshold criteria that must be satisfied
by an alternative before it can be
selected. Long-term effectiveness and
permanence; reduction of toxicity,
mobility, or volume through treatment;
short-term effectiveness;
implementability; and cost are primary
balancing criteria. However, today's rule
places special emphasis on long-term
effectiveness and permanence, and
reduction of toxicity, mobility, or volume
through treatment, during the remedy
selection (§ 300.430(f)(l)(ii)(E)). State
and community acceptance are
modifying criteria that may have
significant input in the final remedy
selection (§ 300.430(f)(4)(i)) and, to the
degree they are available earlier, may
affect the development of alternatives
and the selection of the proposed plan.
Formal consideration of the modifying
criteria may not be available until after
the proposed plan, although informal
consideration may be made earlier.
  2. Today's rule makes clear that the
determinations that the remedy is: (1)
Cost-effective and (2) utilizes permanent
solutions and alternate treatment
technologies or resource recovery
technologies to the maximum extent
practicable, are separate findings that
both result from balancing conducted
during the remedy selection process.
The final rule also reflects the statutory
bias against off-site land disposal of
untreated waste during remedy
selection.
  Name: Section 300.430(f)(5).
Documenting the decision.
  Proposed rule: Proposed
§ 300.430(f)(2) and (f)(4) (renumbered as
§ 300.430(F)(5)) required the publication
of a notice of availability of the
proposed plan and the final remedial
action plan. The proposed plan
describes and solicits comments on the
preferred remedial action alternative
and the other alternatives considered.
Following receipt and consideration of
public comments on the proposed plan,
the remedy is selected and documented
in a ROD.  The ROD summarizes the
problems posed by a site, the technical
analysis of alternative ways of
addressing those problems, and the
technical aspects of the selected remedy
that are later refined into design
specifications. The ROD is also a legal
document that, in conjunction with the
supporting administrative record,
demonstrates that the lead and support
agency decision-making has been
carried out in accordance with statutory
and regulatory requirements and that
explains the rationale by which
remedies were selected. Finally, RODs
are important public documents that
summarize key facts discovered,
analyses performed, and decisions
reached by the lead and support
agencies. The general process of
documenting decisions is similar for
either operable units or comprehensive
remedial actions; however, the content
and level of detail will vary depending
on the scope of the action.
  Response to comments: Few
comments were received on the remedy
selection documentation requirements.
In general, those comments requested
that EPA indicate that the ROD should
explicitly document how each of the
nine evaluation criteria have been
considered and should include the
reasoning on all key issues addressed in
the decision process, including the bases
for remedial objectives and an
explanation of why ARARs are
applicable or relevant and appropriate.
EPA agrees that the consideration of the
nine evaluation criteria, the reasoning
behind all key decisions, the  bases for
remedial objectives, and the justification
of the ARAR determinations  should be
included in the ROD and sufficient
discussion needs to be included in the
proposed plan so that the basis for the
proposed remedy can be clearly
understood. The ROD should include a
brief summary of the problems posed by
the site, the alternatives evaluated as
potential remedies, the results of that
analysis, the rationale for the remedial
action being selected, and the technical
aspects of the selected action. However,
EPA believes that proposed
§ 300.430(f)(4) (renumbered as
§ 300.430(f)(5)] already required the
presentation and discussion of these
items and that no change to the rule is
necessary. This section requires an
explanation of how the nine evaluation
criteria were used to select the remedy
and sets forth the following
requirements for all RODs:
  1. All facts, analysis of facts, and site-
specific policy determinations
considered in the course of carrying out
the selection of remedy.
  2. A demonstration that the decision
was made in accordance with statutory
and regulatory requirements. The ROD
shall discuss how the requirements of
section 121 of CERCLA have  been
addressed.
  3. A description of the remediation
goal(s) and/or other performance
standards that the remedial action is
expected to achieve.
  4. A description of whether or not
hazardous substances, pollutants, or
contaminants will remain at the site at
levels requiring a five-year review of the
response action.
  5. A discussion of significant changes
in the final selected remedy from the
preferred alternative. A responsiveness
summary that identifies and responds to
significant comments should be
available with the ROD. This
responsiveness summary should include
lead agency responses to comments
made by the support agency,  as
recommended by one commenter.
  In addition, EPA has established
detailed guidance on proposed plans,
RODs and other decision documents in

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68
Federal  Register / Vol. 55, No. 46  / Thursday, March 8, 1990 / Rules and Regulations
"Interim Final Guidance on Preparing
Superfund Decision Documents"
OSWER Directive No. 9335.3-02
(October 1989).
  A commenter recommended deleting
the phrase "as appropriate" from the
requirement to document all facts,
analyses of facts, and site-specific
policy decisions in the ROD. In
response, EPA believes that in certain
situations, some information may not
need to be included in the ROD, e.g.,
where the information is already
documented adequately in the
administrative record. In other cases, a
document may not be appropriate for
inclusion in the administrative record at
all (see the discussion in subpart 1 on
what is appropriate for inclusion in the
administrative record).  Thus, EPA is not
removing the phrase "as appropriate"
from the rule.
   Similarly, this commenter
recommended that the phrase "as
appropriate" be deleted from the
requirement to indicate remediation
levels, arguing that such levels should
always be documented in the ROD. EPA
agrees that whenever remediation
levels, which have been renamed
remediation goals, are established they
should be documented  in the ROD.
However, EPA believes it is necessary
to retain existing language to provide for
RODs for interim  actions, which may
not always specify final remediation
goals, and for decisions that select no
action, which will not establish
remediation goals.
   Final rule:'Minor clarifying changes
are being made to proposed
§ 300.430(f)(4)(renumbered as final
§ 300.430(f)(5)). The rule notes that the
documentation in the proposed plan and
the ROD should be at a level of detail
appropriate to the site situation.
   Name: Ground-water policy.
   Background: EPA's Superfund
program uses EPA's Ground-Water
Protection Strategy as guidance when
determining the appropriate remediation
for contaminated ground water at
CERCLA sites. EPA's Ground-Water
Protection Strategy establishes different
degrees of protection for ground waters
based on their vulnerability, use, and
value. The goal of EPA's Superfund
 approach is to return usable ground
waters to their beneficial uses within a
 Umeframe that is reasonable given the
 particular circumstances of the site. The
 Superfund remedial process assesses
 the characteristics of the affected
 ground water as the first step in
 deciding the remediation goal for
 ground-water restoration, the timeframe
 within which the restoration will occur,
 and the most appropriate method  for
                           achieving these goals. A determination
                           is made as to whether the contaminated
                           ground water falls within Class I, II, or
                           IE. (Guidance for making this
                           determination is available in "EPA
                           Guidelines for Ground-Water
                           Classification" (Final Draft, December
                           1986).)
                             Reasonable restoration time periods
                           may range from very rapid (one to five
                           years) to relatively extended (perhaps
                           several decades). EPA's preference is for
                           rapid restoration, when practicable, of
                           Class I ground waters and contaminated
                           ground waters that are currently, or
                           likely in the near-term to be, the source
                           of a drinking water supply. The most
                           appropriate timeframe must, however,
                           be determined through an analysis of
                           alternatives. The minimum restoration
                           timeframe will be determined by
                           hydrogeological conditions, specific
                           contaminants at a site, and the size of
                           the contaminant plume. If there are
                           other readily available drinking water
                           sources of sufficient quality and yield
                           that may be used as an alternative
                           water supply, the necessity for rapid
                           restoration of the contaminated ground
                           water may be reduced.
                             More rapid restoration of ground
                           water is favored in situations where a
                           future demand for drinking water from
                           ground water is likely and other
                           potential sources are not sufficient.
                           Rapid restoration may also be
                           appropriate where the institutional
                           controls to prevent the utilization of
                           contaminated ground water for drinking
                           water purposes are not clearly effective
                           or" reliable. Institutional controls will
                           usually be used as supplementary
                           protective measures during
                           implementation of ground-water
                           remedies.
                             For Class I and II ground waters,
                           preliminary remediation goals  are
                           generally set at maximum contaminant
                           levels, and non-zero MCLGs where
                           relevant and appropriate, promulgated
                           under the Safe Drinking Water Act or
                           more stringent state standards (see
                           ARARs preamble section below on "Use
                            of maximum contaminant level goals for
                            ground-water cleanups"). CERCLA
                            alternate concentration limits may also
                            be used if the requirements of CERCLA
                            section 122(d)(2)(B)(ii) are met (see
                            ARARs preamble section below on "Use
                            of alternate concentration limits
                            (ACLs).") The method for establishing
                            ACLs under CERCLA generally
                            considers the factors specified for
                            establishing ACLs under RCRA with
                            several additional restrictions. The
                            ground water must have a known or
                            projected point of entry to surface water
                            with no statistically significant
                            increases in contaminant concentration
in the surface water, or at any point
where there is reason to believe
accumulation of constituents may occur
downstream. In addition, the remedial
action must include enforceable
measures that will preclude human
exposure to the contaminated ground
water at any point between the facility
boundary and all known and projected
points of entry of such ground water into
surface water.
  The Superfund program will usually
consider several different alternative
restoration time periods and
methodologies to achieve the
preliminary remediation goal and select
the most appropriate option (including
the final remediation goal) by balancing
tradeoffs of long-term effectiveness,
reductions of toxicity, mobility, or
volume through treatment, short-term
effectiveness, implementability, and
cost.
  For Class III ground water (i.e., ground
water that is unsuitable for human
consumption—due to high salinity or
widespread contamination that is not
related to a specific contamination
source—and that does not have the
potential to affect drinkable or
environmentally significant ground
water), drinking water standards are not
ARAR and will not be used to determine
preliminary remediation goals.
Remediation timefraraes will be
developed based on the specific site
conditions. The beneficial use of the
ground water (e.g., agricultural or
industrial use), if any, is determined;
and the remediation approach will be
tailored for returning the ground water
to that designated use. Environmental
receptors and systems may well
determine the necessity and extent of
ground-water remediation. In general,
alternatives for Class III ground waters
will be relatively limited and the focus
may be, for example, on preventing
adverse spread of the significant
contamination or source control to
prevent exposure to waste materials or
contamination.
   Widespread contamination due to
multiple sources is handled in a special
way by the Superfund program.  At most
NPL sites, program policy is to
 determine contributors to the aquifer
 contamination, and involve them in the
 overall response action. EPA will take
 the lead role in managing the overall
response if the NPL site is the primary
 contributor to the multiple-source
 problem. In the case of areawide
 ground-water contamination caused by
 multiple sources, Superfund
 participation in the overall ground-water
 remediation will be proportional to the
 contribution the NPL site(s) makes to the

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            Federal Register / Vol.  55, No. 46 / Thursday,  March 8, 1990  /  Rules and Regulations
                                                                          69
area wide problem, to the extent it can
be determined. EPA may also take any
action necessary to protect human
health and the environment, such as
providing alternate water supplies or
wellhead treatment, if there is a threat
to human health and the environment.
  Response to comments: The use of the
Ground-Water Protection Strategy as a
framework for Superfund ground-water
response actions was the subject of
many comments. Some commenters
stated that the use of the strategy, and
the Guidelines for Ground-Water
Classification that support the strategy,
was ill-advised and possibly illegal.
Others supported the use of the strategy
and classification guidelines, and a third
group supported their use, provided site-
specific decision-making concerning
appropriate remediation was
maintained. In response, part of the
strategy is a scheme for classifying
ground waters according to their
beneficial uses. The Superfund program
uses this scheme as a framework to help
decide the level of remediation that is
appropriate for that ground water. For
the most highly valued uses, such as
drinking water, the most rapid
remediation will be employed, to the
extent practicable. Ground water that is
naturally unusable because of
characteristics such as high salinity may
not be actively remediated.
  Commenters questioning or objecting
to the use of the Guidelines for Ground-
Water Classification noted that the
guidelines have not received adequate
notice and comment for rulemaking and
have not been formally promulgated.
One of those commenters stated that the
proposed NCP improperly makes the
Ground-Water Protection Strategy into a
"super ARAR." EPA disagrees that
either the Ground-Water Protection
Strategy or the Guidelines for Ground-
Water Classification are an ARAR. The
strategy provides overarching guidance
that EPA considers in deciding how best
to protect human health and critical
environmental systems threatened by
contaminated ground water. EPA
developed guidelines, consistent with
the strategy, as guidance to apply the
classification system. The guidelines are
used by the Superfund program as
guidance to help make decisions on the
level of cleanup necessary for ground
water at Superfund sites. The guidelines
are not used as strict requirements.
  As noted above, the strategy, and the
guidelines that help implement the
strategy, are not ARARs. Rather, they
help define situations for which
standards may be applicable or relevant
and appropriate and help set goals for
ground-water remediation. At every site,
EPA must decide the appropriate level
of remediation necessary to protect
human health and the environment and
determine what requirements are
ARARs based on the beneficial use of
the ground water and specific conditions
of the site. The guidelines are not a
means of circumventing the selection of
a remedy that will protect human health
and the environment; they are only tools
to apply the ground-water strategy. Site-
specific decisions will need to be
justified in the proposed plan and the
public will have an opportunity to
comment on EPA's findings and
proposed actions at that time.
  One commenter said  that the use of a
ground-water classification system
would inappropriately insert cost into
cleanup decisions. EPA disagrees. The
cost of remediation does not affect the
determination of the highest beneficial
use of the  ground water and
consequently does not affect the
classification. However, all remedies
must be cost-effective, which may affect
the effort exerted to achieve the
remediation goals in a shorter
timeframe. A commenter requested that
EPA include cost as an  explicit factor in
determining when aggressive measures
will be used to address  ground-water
contamination. EPA believes this is
unnecessary. Cost-effectiveness is
sufficiently addressed through the
determination that remedies, including
ground-water actions, are cost-effective.
  One commenter opposed the
classification guidelines stating that the
use of the  guidelines is to argue against
restoring Class III ground waters.
Unfortunately, EPA has a limited budget
to clean up the many sites for which it
has responsibility. Because Class III
ground waters already contain high
levels of salinity, hardness, or other
chemicals; have no beneficial use to
humans or environmental ecosystems;
and have a low degree of
interconnection with Class I or II ground
waters (i.e., neither humans nor the
environment are threatened by
contamination in these ground waters),
EPA believes that scarce resources can
better be spent cleaning up sites and
ground waters that do pose a threat to
human health and the environment.
Several commenters supported the use
of the differential ground-water
protection and noted that CERCLA
section 121(d)(2)(B)(i) refers to "the
designated or potential use" of the
ground water in determining cleanup
levels, reflecting Congress' intent to
apply varying cleanup standards to
different kinds of ground water.
  Several  commenters, while supporting
EPA's position that remediation levels
for ground water will depend on the
beneficial use of the ground waters,
expressed concern about the
implementation of the ground-water
guidelines. Several commenters said
that ground-water classification should
only be done by the states (which for
these purposes includes federally
recognized Indian tribes or local
governments). Another commenter
stated that classification by a state
should supersede EPA's classification of
ground water unless EPA's classification
would require a more stringent cleanup.
EPA basically agrees; and to the degree
that the state or local governments have
classified their ground water, EPA will
consider these classifications and their
applicability to the selection of an
appropriate remedy.
  EPA will make use of state
classifications when determining
appropriate remediation approaches for
ground water. When EPA must classify
ground water for a Superfund action,
that classification is only used to
determine the scope of site-specific
remedial actions and has no bearing
outside of the Superfund action. It is not
used by Superfund to provide regional
classification of ground waters.
Classification of ground waters is only
done to the extent it guides remedy
selection.
  If a state classification would lead to
a less stringent solution than the EPA
classification scheme,  then the
remediation goals will generally be
based on EPA classification. Superfund
remedies must be protective. If the use
of state classification would result in the
selection of a nonprotective remedy,
EPA would not follow the state scheme.
  Two commenters argued that ground-
water classification and remediation
decisions should be based on current
uses of the ground water, not just
ground-water characteristics (i.e.,
potential use of the ground water). EPA
disagrees. It is EPA policy to consider
the beneficial use of the water and to
protect against current and future
exposures. Ground water is a valuable
resource  and should be protected and
restored if necessary and practicable.
Ground water that is not currently, used
may be a drinking water supply in the
future.
  Another major focus of comments was
the issue of whether natural attenuation
was an appropriate method for dealing
with ground-water contamination. The
comments reflect two points of view:
one that supports natural attenuation as
a reasonable and cost-effective means
of remediating contaminated ground
water and another that believes natural

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70	Federal Register / Vol. 55, No.  46 / Thursday, March 8, 1990 / Rules  and Regulations
attenuation is an inadequate method of
cleanup.
  Those commenters supportive of the
use of natural attenuation as a method
of addressing ground water recognize
that ground-water extraction and
treatment ("pump and treat") is
generally the most effective method of
reducing concentrations of highly
contaminated ground water, but note
that pump and treat systems are less
effective in further reducing low levels
of contamination to achieve remediation
goals. These commenters suggest that
natural attenuation may play a vital role
in achieving the final increment of
cleanup once pump and treat systems
reach the point of diminishing returns.
EPA agrees with the understanding
reflected in these comments that active
ground-water restoration may not
always be able to achieve the final
increment of cleanup in a timeframe  that
is reasonable. It is in recognition of the
possible limitations on the effectiveness
of pump and treat systems that EPA's
approach provides for periodic
evaluation of such systems and allows
for the use of natural attenuation to
complete cleanup actions in some
circumstances. In some cases, proposed
ground-water remediation goals may not
be achievable. In these cases, it will  be
appropriate to modify the remediation
goal to reflect limitations of the
response action.
  Several commenters suggested that
EPA use institutional controls and
natural attenuation to address ground-
water contamination where human
exposure to contaminated ground water
is not currently occurring but potentially
may occur. One commenter suggested
that, in this situation, all ground-water
remedies should be compared with
natural attenuation. In response, during
the analysis of remedial alternatives
and remedy selection, EPA considers the
current and potential use of the ground
water. Natural attenuation is generally
recommended only when active
restoration is not practicable, cost-
effective or warranted because of site-
specific conditions (e.g., Class HI ground
water or ground water which is unlikely
to be used in the foreseeable future and
therefore can be remediated over an
extended period of time) or where
natural attenuation is expected to
reduce the concentration of
contaminants in the ground water to the
remediation goals—levels  determined to
be protective of human health and
sensitive ecological environments—in a
reasonable timeframe. Further, in
situations where there would be little
likelihood of exposure due to the
remoteness of the site, alternate points
of compliance may be considered,
provided contamination in the aquifer is
controlled from further migration. The
selection of natural attenuation by EPA
does not mean that the ground water
has been written off and not cleaned up
but rather that biodegradation,
dispersion, dilution, and adsorption will
effectively reduce contaminants in the
ground water to concentrations
protective of human health in a
timeframe comparable to that which
could be achieved through active
restoration. Institutional controls may
be necessary to ensure that such ground
waters are not used before levels
protective of human health are reached.
  Commenters opposed to natural
attenuation do not find this method an
acceptable substitute for treatment,
noting that many contaminants at
Superfund sites are not readily degraded
in the subsurface. EPA agrees  that  ;
natural attenuation will not provide
contaminant reduction in all cases and
that in many situations natural
attenuation will not be appropriate as
the sole remedial action. Factors that
affect the ability of natural attenuation
to effectively reduce contaminant
concentrations include the biological
and chemical degradability of the
contaminants, the physical and chemical
characteristics of the ground water, and
physical characteristics of the geological
medium.
  In addition to objecting to the use of
natural attenuation, some commenters
provided specific examples of where
they would consider rapid restoration of
ground water to be necessary, such as
water that feeds into, or that is
interconnected with, sensitive or
vulnerable aquatic ecosystems or where
contaminated ground water results in
vapors that impact nearby buildings.
Under current policy, EPA determines
remediation timeframes that are
reasonable given particular site
circumstances. Some "ecologically vital"
ground water that feeds into or is
interconnected with sensitive  or
vulnerable aquatic ecosystems is treated
as a Class I ground water and actively
restored, to the extent practicable. In
addition, ground waters in designated
wellhead protection areas are also to be
treated as Class I ground waters and
will be rapidly restored, to the extent
practicable. Contamination of buildings
due to soil vapors from ground water
will be addressed on a site-specific
basis and, if determined to be a
continuing source of contamination,
contaminated ground water will be
actively restored, to the extent
practicable. In contrast, such factors as
location, proximity to population, and
likelihood of exposure may allow much
more extended timeframes for
remediating ground water.
  One commenter felt that more
realistic "assumptions and models were
needed to calculate restoration times.
The commenter believes EPA uses
unrealistic and unproven models that
result in overly optimistic estimates of
restoration timeframes. Another
commenter requested clarification on
the technical feasibility of active
ground-water restoration.
  In response, EPA notes  that it is
engaged in ongoing research and
evaluation of the effectiveness of
ground-water pump and treat systems.
This analysis has confirmed the
effectiveness of plume' containment
measures in preventing further migration
and of pump aiid treat systems in
achieving significant reductions of
ground-water contamination.
"Evaluation of Ground-Water Extraction
Remedies," EPA No. 540.2-89 (October
1989). However, this'analysis also
indicates the significant uncertainty
involved in predicting the ultimate
effectiveness of ground-water pump and
treat systems. In many cases, this
uncertainty warrants inclusion of
contingencies in remedy selection
decisions for contaminated ground
water. Where uncertainty is great, a
phased approach to remediation may be
most appropriate. Such phasing might
involve initial measures to contain the
contaminant plume follpwed by
operation of a pump and treat system to
initiate contaminant removal from the ,
ground water and to gain a better
understanding of the ground-Water
system at the site. The decision as to the
ultimate remediation achievable in  the
ground water would be made on the
basis of an evaluation of the
effectiveness of the pump and treat
system conducted after a defined period
of time. EPA's "Guidance on Remedial
Action for Contaminated Ground Water
at Superfund Sites" (December 1988)
discusses factors that may be
considered in establishing restoration
timeframes.
  To reflect the fact that restoration of
ground water to beneficial use may not
be practicable, the expectation from the
preamble to the proposal that will be
incorporated in today's rule has been
modified. The expectation concerning
ground-water remediation now indicates
that when ground-water restoration is
not practicable, remedial action will
focus on plume containment to prevent
contaminant migration and further
contamination of the ground water,
prevention of exposures,  and evaluation
of further risk reduction.

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            federal Register / Vol.  55, No. 46  /  Thursday, March  8, 1990 / Rules  and  Regulations
  Another commenter contends that
language in the preamble to the
proposed rule creates the impression
that active restoration is not practicable
in fractured bedrock aquifers, which
they stated was technically incorrect
and inaccurately reflects other work in
progress within EPA. EPA is clarifying
that all of the factors listed as
potentially making active ground-water
restoration impracticable, including the
existence of fractured bedrock or Karst
formations, widespread plumes from
non-point sources, particular
contaminants (e.g., dense non-aqueous
phase liquids), and physicochemical
limitations (e.g., interactions between
contaminants and aquifer material), are
only examples of situations that may
make active ground-water restoration
difficult or impracticable. The presence
of any of these situations does not mean
that active restoration of ground water
is presumptively impracticable and
should not be considered; the decision
of what ground water is or is not
practicable to restore should be made
on a site-specific basis.
  Final rule: An expectation regarding
restoration of ground water has been
added in § 300.430(a)(l)(iii)(F).

Section 300.435. Remedial Design/
Remedial Action, Operation and
Maintenance

  Name: Section 300.435(b)(l).
Environmental samples during RD/RA.
  Proposed rule: The proposed remedial
design/remedial action (RD/RA) section
did not discuss QA/QG requirements for
chemical and analytical testing and
sampling procedures associated with
samples taken during the RD/RA for the
purpose of determining whether cleanup
action levels, as specified in the ROD,
are achieved.
  Discussion: Sampling and analysis
plans prepared during the RI/FS are
required, under final § 300.430(b)(8), to
follow a process ensuring that data of
sufficient quality and quantity is
obtained, and that such sampling and
analysis plans be reviewed and
approved by EPA. In order to encourage
consistency between the QA/QC of the
sampling data generated during the RI/
FS which is relied upon when
determining cleanup action levels in the
ROD, and confirmatory sampling data
used to ensure that cleanup action levels
are met during the RD/RA, EPA has
decided that the QA/QC requirements
for cleanup action level samples under
the RI/FS generally should also apply to
those taken during the RD/RA.
  Final rule: The following section is
added to the final rule in § 300.435(b)(l)
to encourage consistency between the
QA/QC of RI/FS and RD/RA samples
taken for the purpose of cleanup action
levels:
  Those portions of RD/RA sampling and
analysis plans describing the QA/QC
requirements for chemical and analytical
testing and sampling procedures of samples
taken for the purpose of determining whether
cleanup action levels specified in the ROD
are achieved, generally will be consistent
with the requirements of § 300.430(b)(8).
  Name: Section 300.435(d). Contractor
conflict of interest.
  Proposed rule: EPA proposed new
§ 300.435(d) on contractor conflict of
interest for RD/RA and O&M activities
which are Fund-financed. It states that
potential contractors will be required to
provide information on their status and
on the status of their parent companies,
affiliates, and subcontractors as
potentially responsible parties at the
site, and that all such information must
be provided and disclosed before, and
after (if so discovered) submission of
their bid or proposal or contract award.
It further provides that the lead agency
should evaluate the information prior to
contract award and determine that
either: (1) No conflict of interest exists
which would affect their performance;
or (2) a conflict of interest exists which
prevents them from serving the best
interests of the state or federal
government. If such a conflict of interest
exists, the offeror or bidder may be
declared to be a "nonresponsible" or
"ineligible" offeror or bidder in
accordance with appropriate acquisition
regulations and the contract may be
awarded to the next eligible offeror or
bidder. The preamble to the proposed
rule noted that the  lead agency may opt
for actions less severe than denial of the
contract  award for situations in which
the contractor's role at the site has been
very minor or is not yet determined (53
FR 51453).
  In the enforcement context, PRPs may
undertake remedial actions under
consent decrees or court orders, and
EPA commits significant oversight
dollars to such actions to ensure that the
inherent conflict of interest does not
affect the proper conduct of the remedial
action. By contrast, in Fund-financed
situations, EPA does not, as a routine
measure, commit significant dollars for
oversight. This provision would alert
EPA to potential conflict of interest
situations at Fund-lead sites, and allows
EPA to decide if it is cost-effective to
award the contract and provide
additional oversight.
  Response to comments: A few
commenters requested that EPA provide
more detailed guidance on the
circumstances under which a contractor
would be determined nonresponsible or
ineligible. One commenter believed that
EPA did not intend the proposed
regulation to be read so restrictively as
to result in an automatic determination
of being "nonresponsible", and
requested additional guidance regarding
the circumstances under which a
contractor's status as a PRP is
considered likely to affect contract
performance. The commenter argued
that EPA has not stated in the proposal
why status  as a PRP necessarily raises a
conflict of interest as defined in the
federal acquisition regulations (FAR). A
few commenters recognized that a
potential for conflict of interest might
exist if a PRP selects a remedy for a site,
or possibly if a design were conducted
by a PRP. However, for situations
involving implementation of a chosen
remedy, these  commenters felt it was
unlikely that such conflict of interest
would occur, and requested a detailed
discussion of how a construction
contractor's objectivity would be
affected by its status as a PRP. A
commenter noted that EPA might err on
the side of an automatic exclusion of a
contractor from conducting the remedial
action if such detailed discussion is not
provided in the preamble or final rule;
such actions would  thus significantly
reduce competition for Superfund
contracts and consequently increase
costs.
  Another commenter felt that
implementation of oversight by the lead
agency would  alleviate EPA's concerns
that the contractor would not serve the
government's best interests. The
commenter also noted that EPA should
apply the rule only prospectively, in
order to avoid problems associated with
disqualifying a contractor who is
already undertaking work.
  EPA agrees that it does not intend the
proposed regulation to be read so
restrictively as to result in automatic
determinations of a PRP being
considered "nonresponsible" or
"ineligible". However, EPA's use of
contractors with conflicts of interest in
the Superfund program has been a major
issue of concern over the past several
years. After a review of existing EPA
policies and procedures covering the
Superfund contracting program along
with interviews with both internal and
external parties having knowledge of
EPA's administrative procedures
regarding conflict of interest,
§ 300.435(d) was proposed because it
was determined that EPA's procedures
for this issue need strengthening in order
to avoid conflicts in the future.
  EPA is concerned with hiring
contractors (or their subcontractors) to
implement remedial actions under those

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72	Federal Register / Vol. 55, No. 46 /  Thursday, March 8,  1990 / Rules and Regulations
situations where a significant potential
exists that such activity could
significantly affect the success of the
lead agency's ongoing or potential cost
recovery or litigation efforts, or
significantly impact the contractor's
own liabilities. For example, actions
such as the gathering, uncovering or
documentation of evidence might be a
standard task of a remedial action
contractor at sites with potential for cost
recovery. Contractors or subcontractors
with conflicts of interest might not be
completely objective or impartial when
performing this work if evidence with
unfavorable ramifications towards the
contractor was encountered.
Contractors or subcontractors with
conflicts might also be tempted to
recommend cost-saving measures that
are not environmentally protective, in
order to lower their potential cost share.
  The lead agency usually conducts
oversight of PRP-lead RD/RA projects in
order to ensure that the RD/RA effort is
proceeding in a manner which assures
compliance with the requirements of the
applicable record of decision and
enforcement order or decree. However,
at Fund-lead sites, EPA does not
routinely engage in the level of scrutiny
that may be necessary to prevent (or
discover) actions motivated by the
liability interests of the contractor. Thus,
at a minimum, EPA needs to discover
conflicts of interest that may warrant
additional scrutiny; accordingly,
disclosure requirements are necessary
for Fund-lead projects.
  In some cases, EPA may decide that
even though a conflict of interest with a
potential contractor or PRP exists, other
considerations may justify its selection
as a governmental contractor. Examples
of such considerations include the
uniqueness of site conditions, remedy,
or the PRP's prior involvement at the
site, the limited extent of potential
liability of the contractor (or affiliate), or
situations involving a significant
potential for decreased competition or
cost savings to the government (for
example, if the contractor were the best
offeror). In these situations, the lead
agency might try to find an approach to
mitigate such circumstances, ask
offerers to list conflicts as well as their
proposed steps they would take to
lessen the conflict, or increase the level
of oversight normally associated with
that activity. In other cases, however,
the lead agency might decide that the
nature of the conflict overrides the
potential benefits which could be
realized by use of such contractors, and
that governmental oversight might not
successfully address this concern. The
lead agency will evaluate each situation
on a case-by-case basis through the
careful exercise of judgement and the
weighing of a variety of factors based on
the specifics of the situation being
reviewed.
  In making and implementing these
decisions under direct federal
procurement, federal agencies are
required to comply with the procedures
set out in the applicable federal
acquisition regulations. See FAR 9.507.
EPA acquisitions are governed by 48
CFR 1509.507, which are consistent with
the FAR. State procurements should
follow the applicable state acquisition
regulations in making and implementing
these decisions; these regulations should
be consistent with the applicable federal
regulations.
  EPA also does not agree that the lead
agency should apply this section of the
rule prospectively only. The same risks
that exist from prospective contracts
exist with regard to contracts underway.
EPA, other federal agencies and state
contracting officers should review
existing remedial action contracts and
determine whether the requirements set
forth in this regulation  are provided for
in those contracts. Where it is
determined to be appropriate, these
government agency contracting officers
should modify existing remedial action
contracts to ensure that contractors
already undertaking federally funded
work will be required to submit
information under this  section regarding
any potential conflicts  of interest. If EPA
determines that a conflict does exist, the
agency will decide on a case-by-case
basis what action is appropriate.
  Final rule: Proposed § 300.435(d) is
revised as follows to better define the
circumstances under which the lead
agency would determine whether a
conflict of interest would exist, and to
more accurately reflect possible EPA
actions in response to such a finding:
  (d) Contractor conflict of interest. (1) For
Fund-financed RD/RA and O&M activities,
the lead agency shall:
  (i) Include appropriate language in the
solicitation requiring potential prime
contractors to submit information on their
status, as well as the status of their
subcontractors, parent companies,  and
affiliates, as potentially responsible parties at
the site.
  (ii) Require potential prime contractors to
certify that, to the best of their knowledge,
they and their potential subcontractors,
parent companies, and affiliates have
disclosed all information  described in
§ 300.435(d)[l)(i)  or that no such information
exists, and that any such  information
discovered after submission of their bid or
proposal or contract award will be disclosed
immediately.
  (2) Prior to contract award, the lead agency
shall evaluate the information provided by
the potential prime contractors and:
  [i) Determine whether they have conflicts
of interest that could significantly impact the
performance of the contract or the liability of
potential prime contractors or subcontractors.
  (ii) If a potential prime contractor or
subcontractor has a conflict of interest that
cannot be avoided or otherwise resolved, and
using that potential prime contractor or
subcontractor to conduct RD/RA or O&M
work under a Fund-financed action would not
be in the best interests of the state or federal
government, an offer or bid contemplating
use of that prime contractor or subcontractor
may be declared nonresponsible or ineligible
for award in accordance with appropriate
acquisition regulations, and the contract may
be awarded to the next eligible offeror or
bidder.
  Name: Sections 300.5 and 300.435(f).
Operation and maintenance.
  Proposed rule: EPA proposed a new
section that discusses operation and
maintenance (O&M), the final step in the
remedial process. Proposed § 300.435(f)
stated that for remedial actions which
use treatment or other measures to
restore ground or surface waters, the
operation of such facilities until a level
protective of human health or the
environment is achieved, or for up to 10
years after construction/start-up,
whichever is earlier, will be considered
part of the remedial action. EPA pays up
to a 90 percent cost share for remedial
action; activities necessary after this
period would be considered operation
and maintenance (O&M) under
§ 300.435(f)(2)  of the proposed rule, and
CERCLA section 104(c)(6).
  Proposed § 300.435(f)(3)(renumbered
as final § 300.435(f)(4)) made clear that
the following would not be considered
necessary measures to restore
contaminated ground or surface watert
and thus would not be eligible for up to
10 years cost-share: "(i) Source control
measures initiated to prevent
contamination of ground or surface
waters; and (ii) Ground or surface water
measures initiated for the primary
purpose of providing a drinking water
supply, not for the purpose of restoring
ground water." Proposed § 300.435(f)(4)
(revised and renumbered as final
§ 300.435(f)(3)) then noted that "The 10-
year period will begin once the ROD has
been signed, construction activities have
been completed, and the remedy is
operational and functional."
  Response to comments: EPA received
several comments raising concerns with
the proposed rule. Since most
commenters were concerned with
particular sub-components of this issue,
EPA will respond separately to issues
on  each sub-component. Revisions to

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            Federal Register  /  Vol. 55, No. 46 / Thursday, March 8,  1990 /  Rules and Regulations
                                                                           73
proposed §§ 300.5 and 300.435(f] will be
discussed at the end of these sections.
  1. Source control maintenance
measures. Several commenters argued
that EPA has misinterpreted Congress's
intent and does not have statutory
authority in excluding source control
maintenance measures from federal
funding through the  cost-sharing
provisions for remedial actions. Some
felt that Congress intended that source
control maintenance measures (e.g.,
landfill cap maintenance and leachate
collection and treatment) should be
considered necessary to the proper
functioning of measures restoring
ground-water quality (e.g., ground-water
pump/treat),  and thus should be
included within the coverage of
CERCLA section 104(c)(6). These
commenters reason  that if source
control maintenance measures are not
operated, no restoration would occur,
the protection of public health would not
be assured, and water quality would not
improve. Several commenters also
argued that excluding "source control
measures" is much too broad and
requires clarification and examples, and
stated that the example used in the
proposed rule describing leachate
control systems for containment units
(53 FR 51453-54) exemplifies ground
water restoration as well as source
control. Another felt that the only
example of a source control measure
which would have operation and
maintenance costs fully funded by the
states would be a leachate collection
system as found in a RCRA Subtitle C
landfill.
  In response, EPA has decided as a
matter of policy not to fund the
operation and maintenance of source
control measures (e.g., landfill cap
maintenance, leachate collection/
treatment, gas collection/treatment)
once such measures become operational
and functional.  EPA believes that  source
control maintenance measures should
be treated like other O&M activities
under CERCLA section 104(c)(6)(see
preamble discussion on § 300.510(c)(l)
below).
  As a threshold matter, it is important
to note that EPA will continue to fund
the construction of the source control
measures themselves (e.g., construction
of the landfill cap or leachate collection
system). As EPA noted in the preamble
to the proposed NCP, EPA intends to
pay up to a 90 percent Fund share for all
source control measures until
"completion of  construction of a source
control system, and * * * the system is
operational and functioning properly"
(53 FR 51454). After that point, when the
system is simply being maintained and
the contamination from the source is
being controlled, the O&M phase begins
for these measures, and EPA believes
that it would be inappropriate for the
Fund to continue to pay for such
activities.
  Congress made clear in CERCLA
section 104(c)(6) that certain ground or
surface water restoration actions would
be considered "remedial action" (such
that, under EPA policy, EPA would pay
up to a 90 percent cost share) as
compared to "O&M" (for which the
states pay all costs under a long-
standing EPA policy). EPA has
determined that although a failure to
perform source control maintenance
could result  in some new contamination
of ground or surface water, maintenance
measures are not specific restoration
actions and  do not come within the
category of remedial measures
"necessary to restore ground or surface
water" as used in section 104(c)(6).
Rather, they fall within the category of
normal operation and maintenance
activities.
  Congress was specifically concerned
with including within the idea of
"remedial action" (and thereby within
the group of actions funded at up to a 90
percent level by EPA), those measures
that actively clean up ground and
surface water. In a discussion of the
issue, the Senate Committee on
Environment and Public Works noted
that EPA was paying up to a 90 percent
cost  share for most active remediation
efforts, such as drum removals and soil
cleanup, but did not comparably share
in the cost of ground or surface water
cleanup:
  The Committee felt that it was important to
specify what the financial obligation of the
Superfund is in regard to the cleanup of
ground and surface water contamination at
sites  on the National Priority List. The current
practice of the [EPA] is to finance remedial
action activities such as the removal of
drums, excavation of soil, and initial
treatment of ground and surface waters on
the 90/10 basis provided in section 104(c)(3).
Under this policy, the long-term treatment of
contaminated water becomes a state
responsibility one year after all other
remedial actions are completed. The
continued treatment of contaminated water,
which is in actuality a major part of the
cleanup program, is considered by EPA to be
an operation and maintenance cost.
S. Rep. 11, 99th Cong.,  1st Sess. at 20-21
(1985), and S. Rep. 631, 98th Cong., 2d
Sess. at 9 (1984).  (Emphasis added.)
  In order to distinguish between active
cleanup ("remedial") actions and O&M,
Congress specified hi section 104(c)(6)
that remedial actions would include
those measures that are necessary to
restore ground and surface water to "a
level that assures protection of human
health and the environment." By
contrast, the statute provides that
"[activities required to maintain the
effectiveness of such measures * * *
shall be considered operation or
maintenance."
  This distinction flows directly from
the concern, expressed by the Senate
Environment Committee, that the
dividing line between remedial and
O&M actions, for the purposes of cost
share funding, should be achieving
protective levels:
  This distinction between remedial action
and operation and maintenance should be
based on the degree of cleanup that has been
achieved. This section determines that the
cleanup of ground and surface water,
whether  on or off-site, is a remedial action
until the  protection of human health and the
environment is assured *  * *
Id. Thus, Congress appears to have
contemplated that active measures
necessary to clean up (or restore) a
water body (e.g., the pumping and
treating of groundwater) would be
considered to be remedial action, but
O&M to maintain that remedy would
not.
  However, at the same time, Congress
was sensitive to  EPA's concern that too
broad a policy would require EPA to set
aside large amounts of Superfund money
for water treatment measures, thereby
limiting EPA's ability to take other
response actions. As the Senate reports
noted, "[t]he reported bill addresses this
concern by putting a five-year [later
changed to a 10-year] time limit on the
mandatory involvement of the federal
fund in such treatment expenses." Id.
Thus, the section requires EPA to
consider active restoration measures to
be remedial action until protective
levels have been achieved, or for a
period of 10 years after construction-and
commencement of operation, whichever
is earlier.
  For example, under section 104(c)(6),
if EPA were to achieve protective levels
(e.g., MCLs) after 6 years of ground-
water treatment, then the "remedial"
action phase would be considered
complete and the ground water restored,
and activities over the next 4 years (and
thereafter) to maintain the effectiveness
of that remedy would be considered to
be O&M. However, these O&M activities
might well include maintenance of the
cap on a landfill  above  the aquifer, or
continued operation of the landfill's
leachate collection system. Because
these source control maintenance
activities would merely "maintain the
effectiveness of the restoration"—and
not be necessary to achieve the
remedial action objectives and

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74	Federal Register / Vol. 55, No.  46 / Thursday, March 8,  1990 / Rules and Regulations
remediation goals in the ROD—they are
clearly the types of measures that are
not "necessary" to restore the aquifer
oven though if they were not performed,
some degradation of the aquifer might
occur. These measures are O&M
activities, and will be funded by the
state.
  If, as the commenters suggest, EPA
considered source control maintenance
and other O&M activities performed
during the period of active restoration to
bo remedial action "necessary" to
restore the aquifer (on the theory that if
the O&M were not performed, the
aquifer could become degraded), then
EPA would also be compelled to
consider O&M to be remedial action
during the period after protectiveness
levels have been reached (if less than 10
years after construction). Such an
interpretation would directly conflict
with the language and legislative history
of section 104(c)(6) that ends the
remedial action stage when protective
levels are achieved or hi 10 years.
  The commenters' interpretation would
also lead to a situation where virtually
all on-site O&M activities could be
characterized as "remedial action"
under section 104(c)(6), on the theory
that if they were not maintained, they
might degrade the ground/surface water;
again, the legislative history (and the
wording of section 104(c)(6)) do not
suggest that this was Congress'
intention.
  EPA's analysis is also supported by
the common sense notion that once a
landfill leachate collection system has
been constructed and is operational, the
releases have been controlled and the
remedial action phase completed;
ongoing operation of the leachate
control and cap maintenance would
merely be necessary to maintain that
status quo. EPA further believes that
this position is consistent with the need
to balance demands on the Fund.
  The record of decision for each
operable unit of a site's remedy should
clearly differentiate, where  applicable,
which remedial action components  will
serve the function of "source control
maintenance" measures as compared to
"restoration" measures. Source control
maintenance, hi particular, includes
maintenance of caps, flood/erosion
control measures, slurry walls, gas  and
leachate collection/treatment measures,
and ground/surface water interception/
diversion measures. In addition, source
control maintenance measures include
those leachate collection/treatment
measures which function: (1) Within a
containment unit, (2) within a source, or
(3) immediately downgradient and
adjacent to a source, and which serve to
collect leachate from a  source. In
contrast, "source control action" is
generally considered to include the
construction or installation and start-
up—as compared to maintenance—of
those actions necessary to prevent the
continued "release" of hazardous
substances or pollutants or
contaminants into the environment from
a source (generally on top of or within
the ground, or in buildings or other
structures on the site).
  2. Measures whose primary purpose is
to provide drinking water. Several
commenters argued that EPA has
misinterpreted Congress' intent, and
does not have statutory authority, in
excluding from federal funding through
the cost-sharing provisions for remedial
actions, ground/surface water measures
for the primary purpose of providing
drinking water. Several commenters
argue that CERCLA section 104(c)(6)
does not exclude coverage since this
section provides 10-year cost share for
"the completion of treatment or other
measures * *  * necessary to restore
ground or surface water to a level which
assures protection of human health and
the environment." They argue that 10-
year cost share is warranted since, if
measures for providing drinking water
are not operated, no restoration would
occur, the protection of public health
would not be assured, and water quality
would not improve. Some commenters
claim that such a requirement would
unfairly burden small communities/
states which would have to pick up the
cost of treating contaminated water
and/or charge a high user fee for the use
of treated water. One commenter
believed that O&M funding should be
extended on a case-by-case basis where
drinking water is provided and the
release at the source is controlled, but
contaminant levels cannot be cost-
effectively contained.
  EPA has decided as a matter of policy
not to fund the operation and
maintenance of ground/surface water
measures taken for  the primary purpose
of supplying drinking water. Section
104(c)(6) defines as  "remedial" action
(subject to up to a 90 percent EPA cost
share)  measures necessary to restore
ground or surface water. Providing
drinking water is simply not
"necessary" for restoration. EPA
recognizes that pumping and treating
groundwater to primarily provide
drinking water might, over time, tend to
encourage recharge of the aquifer and
could result in some localized
improvement in ground or surface water
quality; however, the effect is at best
tangential to, not necessary for,
restoration.
  Moreover, EPA believes that the
Superfund program was neither
designed nor intended to provide
drinking water to local residents over
the long-term; providing drinking water
generally is the responsibility of state
and local governments and utilities.
CERCLA often does provide drinking
water on a temporary basis (e.g., bottled
water) or construct drinking water
facilities  (e.g., water line extensions or
treatment plants) in order to provide
alternative water supplies; however,
EPA does not believe that it is the
purpose of the federal government under
Superfund authority to fund the long-
term operation and maintenance of a
public works project such as a drinking
water treatment system. EPA believes
that this position is consistent with use
of the Fund to implement the clear
mandates of CERCLA.
  The commenter suggests that if EPA
does not provide the 10-year cost share
for measures taken for the purpose of
providing drinking water, no restoration
will occur, and protection of human
health will not be assured. EPA
disagrees. First, if the ground or surface
water is contaminated by a release
under CERCLA, EPA may decide to take
action with the primary purpose of
restoring that aquifer (in which case the
cost share would be provided). Second,
if the state and locality believe that
ground or surface water should be
treated for the primary purpose of
providing drinking water, such measures
may be carried out by the state or
locality itself or by the local utility. As
noted above, Superfund was not
intended to be a public works program.
  The ROD for each operable unit of a
site's remedy, where applicable, should
clearly differentiate which remedial
action components are "treatment or
other measures initiated for the primary
purpose of supplying drinking water"
versus treatment or other measures
"necessary for restoration." These RODs
should clearly justify why a remedial
action to restore a contaminated aquifer
is or is not determined to be appropriate,
and/or why the cost-effective selected
alternative is to supply drinking water
after treatment or other measures. These
decisions must follow the NCP
requirements involving the development,
screening, and analysis of remedial
alternatives, as well as NCP remedy
selection procedures.
  3.  Temporary or interim measures.
One commenter argued that in, situations
where a ROD for an operable unit
identifies an action as temporary or non-
final in anticipation of a subsequent
final remedy, interim maintenance
should not be considered O&M.
  EPA has determined that, in certain
cases, an interim or temporary response

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            Federal Register / Vol. 55. No.  46 / Thursday, March 8,  1990 /Rules and Regulations
                                                                          75
action is both necessary and desirable
in order to control or prevent the further
spread of contamination while EPA is
deciding upon a final remedy for the
site. Indeed, in many cases, a significant
escalation of final restoration remedial
action costs would result if such
measures were not utilized prior to
installation of the remedy for the source.
Therefore, as a matter of policy, EPA
will consider, in certain cases, such
interim measures to be "remedial
action" (eligible for 90 percent funding),
even if the interim measures include
source control maintenance activities.
Such interim action would be conducted
as an operable unit component of a
remedial action.
  However, this does not mean that all
interim actions will be so funded. Where
EPA selects a final remedy for an
operable unit (e.g., a final, as compared
to a temporary, landfill cap), then any
maintenance activity for that site will be
considered O&M. It is only where the
action is truly temporary, meaning that
EPA anticipates replacing it with a final
measure later on, that the activity will
be considered part of the remedial
action. In effect, EPA considers these
temporary stabilization actions to be a
necessary part of the remedy. Unlike
normal O&M activities, these actions are
not intended to maintain the
effectiveness of the remedy; they are
intended to ensure that the site
conditions do not significantly worsen
while EPA develops a comprehensive
final remedy. Such measures must be
taken promptly in order to assure
protection of human health and the
environment.
  4. Time at which a remedy becomes
operational and functional. The time
period for calculating when a remedial
action begins for the purpose of
CERCLA section 104(c)(6) is the point at
which the remedy becomes operational
and functional, and is the relevant point
for starting the ten-year period. In
addition, for non-ground or surface
water restoration remedies, O&M begins
when the remedial action is operational
and functional.
   Several commenters requested
clarification as to when a ground or
surface water restoration remedy
becomes "operational and functional"
under proposed § 300.435(f)(4) (revised
and renumbered as final § 300.435(f)(2)
and (3)). One commenter felt that this
determination is a matter of judgment
with some remedies, and felt that a final
inspection resulting in state and EPA
concurrence on this determination was
warranted. One commenter proposed
that the period start when it is
determined that the remedy works, has
 no start-up problems, and is performing
 as designed for a reasonable period of
 time, or either: (1) One year after
 construction is complete; or (2) after a
 reasonable start-up period after
 construction is complete (as defined
 through EPA/state SMOA,  contract or
 agreement), whichever is longer, for
 each operable unit. This is referred to as
•• the start-up period. Another commenter
 proposed that the period start when all
 parties (EPA, state, PRPs) agree that the
 remedy is operational and functional.
   In response, under § 300.5, "operation
 and maintenance" means measures
 required to maintain the effectiveness of
 response actions. Except for ground or
 surface water restoration actions
 covered under § 300.435(f)(3), O&M
 measures are initiated after the remedy
 has achieved the remedial action
 objectives and remediation goals in the
 ROD or consent decree, and is
 determined to be operational and
 functional.
   EPA generally agrees with the
 comments that a measure should be said
 to be operational and functional
 approximately one year after
 construction has been completed (see
 § 300.510(c)). EPA does not, however,
 agree that in a federal- or state-lead
 action, the lead agency should await the
 agreement of all parties, including PRPs,
 before making this finding. Thus, the
 final rule provides that a remedy
 becomes "operational and  functional"
 either one year after construction is
 complete, or when the remedy is
 determined concurrently by EPA and the
 state to be functioning properly and is
 performing as designed, whichever is
 earlier. This timetable is consistent with
 EPA experience, and with the period of
 time used in construction grant
 regulations. See 40 CFR 35.2218(c).
    However, EPA also agrees with the
 comment that in certain cases a remedy
 may not be fully operational after a
 year, i.e., such that it merely needs to be
 maintained or operated; thus, the state
 may request an EPA extension of the
 one year limit for project start-up.
 Where EPA determines that an
 extension of the  start-up period is
 warranted, an extension would be
 granted.  If the request is not approved,
 the remedy would be considered
 operational and functional one year
 after its construction, or on the date of
 the EPA/state determination that it is
 operational and functional, whichever is
 earlier.
    Other  sections of the NCP also discuss
 state involvement during and after
 remedial actions; specifically,
 § 300.510(c) discusses state assurances
 for assuming O&M responsibility, and
§ 300.515(g) discusses state involvement
in remedial action. In order to more
clearly describe EPA/state roles and
coordination between construction
completion and O&M, and to ensure
consistency when applying EPA's
existing policy for the administrative
procedures required to bring sites into
the O&M phase, the following process is
described.
  For Fund-financed remedial actions,
the lead and support agencies should
conduct a joint inspection at the
conclusion of construction of the
remedial action and concur through a
joint memorandum that: (1) The remedy
has been constructed in accordance
with the ROD and with the remedial
design, and (2) the start-up period
should begin. At the end of the start-up
period, the construction contractor or
agency will prepare a remedial action
report that the work was performed
within desired specifications and is
operational and functional. The lead and
support agencies will then conduct a
joint inspection in order to determine
whether to accept the remedial action
report.
  5. When is ground or surface water
considered "restored." One commenter
requested clarification in the proposed
regulation regarding when a surface or
ground water is considered  to have been
fully restored.
  Ground or surface water restoration is
considered to be complete, for the
purposes of CERCLA section 104(c)(6),
when the remedial action has achieved
protective levels as set in the ROD, or
after 10 years, whichever is earlier. Of
course, if protective levels have not
been achieved by year 10, then it may be
appropriate for the state to continue the
operation of the  treatment or other
restoration measures until the ground or
surface water is fully restored to levels
set out in the ROD.
  EPA recognizes, however, that
performance of remedies for restoring
ground or surface waters can often only
be evaluated after the remedy has been
implemented and monitored for a period
of time. Further, some water treatment
systems may prove unable to meet
cleanup goals, and instead may merely
reach the point at which it is determined
that restoration  to health based levels in
contaminant concentrations in the
ground or surface water is not
practicable. In such cases, it may be
necessary to amend the ROD and waive
certain ground or surface water
requirements. Alternatively, the RODs
may contemplate, as a contingency, that
it may not be technically practicable to
meet the specified levels, and thus set

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76	Federal Register /  Vol. 55, No.  46 / Thursday, March 8,  1990 / Rules and Regulations
out alternative measures to be taken
under that contingency.
  Performance evaluations should be
conducted one to two years after the
remedy is operational and functional, in
order to determine whether
modifications to the restoration action
are necessary. More extensive
performance evaluations should be
conducted at least every five years.
After evaluating whether cleanup levels
have been, or will be, achieved in the
desired time frame, the following
options should be considered: (1)
Discontinue operation; (2) upgrade or
replace the remedial action to achieve
the original remedial action objectives
or modified remedial action objectives;
and/or (3) modify the remedial action
objectives and continue remediation, if
appropriate.
  0. Who operates the restoration
measures during 10-year period. One
commenter noted that CERCLA is
unclear on who will be responsible for
operating the remedial action measures
necessary during the restoration period
of up to 10 years, and believed that EPA
is responsible for implementing such
measures for EPA-lead sites. Another
commenter felt that states  should decide
whether they have the capability and/or
interest in conducting operation and
maintenance, and felt that taking over
this O&M would be encouraged if
federal cost-share for O&M for up to ten
years is assured. One commenter argued
that section 104(c){3)(A) of CERCLA,
which requires states to assure all future
maintenance of the removal and
remedial actions, means that the  state
will assume the responsibility for
physically taking over the future
maintenance, not assume the
responsibility for all future maintenance
costs.
  In response, CERCLA section 104(c)(6)
defines treatment and other measures to
restore aquifers (for up to ten years] to
be "remedial action," not O&M.
Therefore, the costs of operating the
remedial action will be shared by EPA
and the state according to the
appropriate cost sharing provisions in
CERCLA section 104(c)(3). However,
states are encouraged to conduct such
action and may be funded  through a
cooperative agreement for that portion
of remedial action required to restore
ground or surface water to levels which
assure protection of human health and
the environment (or 10 years, whichever
is earlier). Such management would
include performing any necessary
compliance or monitoring requirements.
The state is further encouraged to
provide necessary information to other
environmental programs when such
programs are interested in activities at a
Superfund site (e.g., providing
information on surface water discharges
to the appropriate water office or
agency).
  Of course, after the restoration is
considered "complete," as discussed
above (at the latest, after 10 years), the
restoration activities become O&M, and
the states must assume responsibility for
the management of the restoration
activities, including the costs of that
O&M. This is consistent with the long-
standing policy that states are
responsible for all O&M costs. (See
preamble discussion below on "Sections
300.510(c) (1) and (2). State assurances.")
  Final rule: Proposed §§  300.5 and
300.435(f) are revised as follows:
  1. EPA is revising the proposed rule's
definition of "source control remedial
action" and is adding a separate
definition for "source control
maintenance measures," as follows:
  "Source control  action" is the construction
or installation and start-up of those actions
necessary to prevent the continued release of
hazardous substances or pollutants or
contaminants [primarily from a source on top
of or within the ground, or in buildings or
other structures) into the environment.
  "Source control  maintenance measures"
are those measures intended  to maintain the
effectiveness of source control actions once
such actions are operating and functioning
properly, such as the maintenance of landfill
caps and leachate collection systems.

  2. In § 300.5, the definition of
"operation and maintenance" is
changed to refer to "measures" rather
than "activities," consistent with 40 CFR
part 35, subpart  O:
  "Operation and  Maintenance" (O&M)
means measures required to maintain the
effectiveness of remedial response actions.
  3. Section 300.435(f)(l) is revised as
follows to clarify the point at which
O&M measures are initiated:
  Operation and maintenance (O&M)
measures are initiated after the remedy has
achieved the remedial action objectives and
remediation goals  in the ROD, and is
determined to be operational and functional,
except for ground  or surface water
restoration actions covered under
§ 300.435(f)(3). A state must provide its
assurance to assume responsibility for O&M,
including, where appropriate, requirements
for maintaining institutional controls, under
§ 300.510(0).

  4. A new § 300.435(f)(2) is  added to
explain the use of the term "operational
and functional" in subsection (f)(l):
  A remedy becomes "operational and
functional" either one year after construction
is complete, or when the remedy is
determined concurrently by the EPA and the
state to be functioning properly and is
performing as designed, whichever is earlier.
EPA may grant extensions to the one-year
period, as appropriate.

  5. Proposed § 300.435(f)(2)
(renumbered as final § 300.435(f)(3)) is
revised to indicate that the restoration
period begins after the remedy is
operational and functional, consistent
with the discussion of O&M measures in
paragraph (f)(l). This section also
defines  administrative "completion."
This revision also takes the place of
proposed paragraph (f)(4).
  (3) For Fund-financed remedial actions
involving treatment or other measures to
restore ground or surface water quality to a
level that assures protection of human health
and the environment, the operation of such
treatment or other measures for a period of
up to 10 years after the remedy becomes
operational and functional will be considered
part of the remedial action. Activities
required to maintain the effectiveness of such
treatment or measures following the 10-year
period, or after remedial action is complete,
whichever is earlier, shall be considered
O&M. For the purposes of federal funding
provided under CERCLA section 104(c)(6), a
restoration activity will be considered
administratively "complete" when:
  (i) Measures restore ground or surface
water quality to a level that assures
protection of human health and the
environment;
  (ii) Measures restore ground or surface
water to such a point that reductions in
contaminant concentrations are no  longer
significant; or
  (iii) Ten years have elapsed, whichever is
earliest.

  6. Because the final NCP includes a
definition of "source control
maintenance measures," proposed
§ 300.435(f)(3)(i) (renumbered as final
§ 300.435(f)(4)) is revised to add the term
"measures" and to delete the phrase
"initiated to prevent contamination of
ground or surface water."

  Name: Notification prior to the out-of-
state transfer of CERCLA wastes.
  Policy: In response to the concerns of
a number of states and localities, EPA
has initiated a policy that prior  to the
shipment of Superfund wastes to a
permitted waste management facility
out-of-state, the lead agency should
provide written notice  to that state's
environmental officials. EPA  believes
that such notice may be appropriate,
and that indeed, such notice may be
helpful in facilitating the safe and timely
accomplishment of Superfund waste
shipments. Notice should be provided
under this policy for all remedial actions
and non-time-critical removal actions
involving the out-of-state shipment of
Superfund wastes that are known to the
lead agency, including waste shipments
arising from Fund-lead responses, state-
lead responses, federal facility

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            TFedera\ Register /  Vol. 55, No. 46  /  Thursday,  March 8, 1990 / Rules and Regulations
                                                                         77
responses and responses conducted by
PRPs (emergency and time-critical
removals are not covered by this policy].
This notification should specify the type
and quantity of waste involved, the
name and location of the receiving
facility and the expected schedule for
the transfer of the CERCLA waste. Such
notification will enable the recipient
state to obtain from its permitted
facilities any other information it may
need in order to support the out-of-state
action. Although this notification is
neither mandated by CERCLA nor
required by this regulation, EPA
believes that adherence to this
procedure will help to ensure that these
waste transfers occur in a safe and
expedient manner. The policy is
explained in more detail in OSWER
Directive No. 9330.2-07 (September 14,
1989).
  Because CERCLA actions may be
carried out under a number of
mechanisms and by a number of parties
(e.g., lead state agencies, other federal
agencies, PRPs), EPA plans to issue
additional guidance or regulations, if
appropriate, to implement this
notification policy.
  Final rule: There is no rule  language
on this issue.

Applicable or Relevant and Appropriate
Requirements
  Introduction. The November 20,1985
revisions to the NCP required that, for
all remedial actions, the  selected
remedy must attain or exceed the
federal applicable or relevant and
appropriate requirements (ARARs) in
environmental and public health laws. It
also required removal actions to attain
ARARs to the greatest extent
practicable, considering the exigencies
of the circumstances. The preamble to
the 1985 revisions to the NCP stated that
ARARs could be determined only on a
site-by-site basis, and it included from
EPA's October 2,1985 Compliance
Policy a list of potentially applicable or
relevant and appropriate requirements.
The preamble also provided a list of
federal non-promulgated criteria,
advisories and guidance, and state
standards "to be considered," called
TBCs. EPA also provided five limited
circumstances in which ARARs could be
waived.
   On October 17,1986, CERCLA was
reauthorized with additional new
requirements. Section 121 of CERCLA
requires that, for any hazardous
substance that will remain on-site,
remedial actions must attain
requirements under federal
environmental or state environmental or
facility siting laws that are applicable or
relevant and appropriate under the
circumstances of the release or
threatened release at the completion of
the remedial action. The statute also
retained most of the waivers, with a few
additions.
  Although section 121(d)(2) basically
codified EPA's 1985 policy regarding
compliance with other laws, the section
also requires that state standards are
also potential ARARs for CERCLA
remedial actions when they are
promulgated, more  stringent than
federal standards, and identified by the
state in a timely manner.
  Furthermore, the  CERCLA
amendments provide that federal water
quality criteria established under the
Clean Water Act (CWA) and maximum
contaminant level goals (MCLGs)
established under the Safe Drinking
Water Act, must be attained when they
are relevant and appropriate under the
circumstances of the release.
  Today's revision to the NCP continues
the basic concept of compliance with
ARARs for any remedy selected (unless
a waiver is justified). ARARs will be
determined based upon an analysis of
which requirements are applicable or
relevant and appropriate to the
distinctive set of circumstances and
actions contemplated at a specific site.
Unlike the 1985 revisions to the NCP,
where alternatives were developed
based on their relative attainment of
ARARs, in today's  rule recognition is
given to the fact that ARARs may differ
depending on the specific actions and
objectives of each alternative being
considered (for more discussion of this
point, see preamble of proposal at 53 FR
51438, section 9).
  In today's rule, EPA retains its policy
established in the 1985 NCP of requiring
attainment of ARARs during the
implementation of the remedial action
(where an ARAR is pertinent to the
action itself), as well as at the
completion of the action, and when
carrying out removal actions "to the
extent practicable considering the
exigencies of the situation."
  For ease of identification, EPA divides
ARARs into three categories: chemical-
specific, location-specific, and action-
specific, depending on whether the
requirement is triggered by the presence
or emission of a chemical, by a
vulnerable or protected location, or by a
particular action. (More discussion of
these types can be found in the
preamble of the proposal at 53 FR 51437,
section 6).
  Response to comments: EPA received
a few comments on general ARARs
policies. One commenter argued that the
remedial action should not necessarily
have to attain the most stringent
applicable or relevant and appropriate
requirement if a less stringent
requirement provides adequate
protection of human health and the
environment.
  EPA disagrees. CERCLA requires that
remedial actions comply with all
requirements that are applicable or
relevant and appropriate. Therefore, a
remedial action has to comply with the
most stringent requirement that is ARAR
to ensure that all ARARs are attained.
In addition, CERCLA requires that the
remedies selected be protective of
human health and the environment and
attain ARARs. A requirement does not
have to be determined to be necessary
to be protective in order to be an ARAR.
Conversely, the degree of stringency of a
requirement is not relevant to the
determination of whether it is an ARAR
at a site and must be attained (except
for  state ARARs).
  Another commenter asked for
confirmation that variance or exemption
provisions in a regulation can be
potential ARARs as well as the basic
standards. EPA agrees that meeting the
conditions and requirements associated
with a variance or exemption provision
can be a means of compliance with an
ARAR. For example, EPA expects that
CERCLA sites will  frequently be
complying with the terms of the
treatability variance under the RCRA
land disposal restrictions (LDR) for soil
and debris when LDR is an ARAR.
  Limitations in a regulation, such as the
quantity limitations that define small
quantity generators under RCRA and
affect what requirements a generator
must comply with, will also affect what
requirements are applicable at a
CERCLA site. However, it is possible
that a requirement  could be relevant and
appropriate even though the requirement
is not applicable because of a limitation
in the regulation.
  Indian tribe commenters contended
that ARARs should not be  defined as
promulgated laws,  regulations, or
requirements because some Indian tribe
laws, which could apply to a Superfund
cleanup, may not be promulgated in the
same fashion as state or federal laws.
CERCLA section 126 directs EPA to
afford Indian tribes substantially the
same treatment as  states for certain
specified subsections of CERCLA
sections 103,104 and 105; EPA believes,
as a matter of policy, that it is similarly
appropriate to treat Indian tribes as
states for the purpose of identifying
ARARs under section 121(d)(2). EPA
realizes that tribal  methods for
promulgating laws  may vary, so any
evaluation of tribal ARARs will have to

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78
Federal Register / Vol. 55, No. 46  /  Thursday, March 8, 1990 / Rules and Regulations
be made on a case-by-case basis. Tribal
requirements, however, are still subject
to the same eligibility criteria as states,
as described in § 300.400{g)(4).
  Another commenter disagreed with
EPA'a position that environmental laws
do not apply to a CERCLA response
action unless incorporated by CERCLA
section 121(d). This commenter argued
that EPA has confused the ARARs
concept with one of preemption of state
law.
  In response, SARA established a
process, in CERCLA sections 121(d)(2)
and (d)(4), for how federal and state
environmental laws should apply to on-
site CERCLA remedial actions, i.e., the
ARARs process. Based on these
provisions, CERCLA remedies will
incorporate (or waive) state standards,
as appropriate under CERCLA. Thus,
although other environmental laws do
not independently apply to CERCLA
response actions, the substantive
requirements of such laws will be
applied to such actions, consistent with
section 121(d) and NCP § 300.400(g).
  EPA's interpretation that CERCLA
response actions are required to meet
state (and other federal] environmental
law standards only to  the limited degree
set out in CERCLA is also necessary to
comply with the special mandates in
CERCLA to respond quickly to
emergencies, and to perform Fund-
balancing. The position that on-site
CERCLA response actions are not
independently subject to other federal or
state environmental laws is a long-
standing one, based on a theory of
implied repeal or pre-emption. See, e.g.,
SO FR 47912.47917-18 (Nov. 20,1985); 50
FR 5882,5865 (Feb. 12,1985); "CERCLA
Compliance With Other Environmental
Laws" Opinion Memorandum, Francis S.
Blake, General Counsel, to Lee M.
Thomas, Administrator, Nov. 22,1985.
  Following are summaries of major
comments and EPA's responses on
specific sections of the ARARs policy.
  Name: Sections 300.5 and
300.400(g)(l). Definition of "applicable."
  Proposed rule: "Applicable
requirements" means those cleanup
standards, standards of control, or other
substantive environmental protection
requirements, criteria, or limitations
promulgated under federal or state law
that specifically address a hazardous
substance, pollutant, contaminant,
remedial action, location, or other
circumstance at a CERCLA site. The
preamble to the proposed rule pointed
out that there is generally little
discretion in determining whether the
circumstances at a site match those
specified in a requirement (53 FR 51435-
37).
                             Response to comments: One
                           commenter suggested that language
                           used in § 300.400(g)(4) of the proposed
                           NCP which provides that "only those
                           state standards that are promulgated
                           and more stringent than federal
                           requirements may be applicable or
                           relevant and appropriate" be added to
                           the definition of ARARs found in
                           § 300.5.
                             In response, EPA notes that the
                           definition it proposed already includes
                           the condition that standards, whether
                           federal or state, must be promulgated in
                           order to be potential ARARs. EPA
                           accepts this comment on stringency and
                           has revised both §§ 300.5 and 300.400(g)
                           to specify that in order to be considered
                           ARARs, state requirements must be
                           more stringent than federal
                           requirements. EPA notes that, in general,
                           state regulations under federally
                           authorized programs are considered
                           federal requirements.
                             A commenter supported the
                           discussion  of ARARs in the preamble to
                           the proposed NCP, but remarked that
                           the definitions of ARARs do not
                           adequately reflect many of the
                           important aspects mentioned in the
                           preamble. EPA believes that the
                           definitions  stated in the rule are
                           sufficiently comprehensive and that the
                           information contained in the preamble
                           to the proposed and fined rules will help
                           the public in applying the definitions.
                             One  commenter asked why EPA had
                           deleted rule language that applicable
                           requirements are those requirements
                           that would be legally applicable if the
                           response action were not undertaken
                           pursuant to CERCLA. In working with
                           this definition, EPA found the previous
                           definition confusing because it was
                           stated  in the conditional, i.e.,
                           requirements that would apply if the
                           action  were not under CERCLA. EPA
                           revised the definition to explain more
                           specifically what it means by applicable
                           requirements to avoid any confusion.
                           However, the 1985 wording is still a
                           correct statement of the applicability
                           concept. EPA is modifying the definition,
                           however, to make it clear that the
                           standards,  etc. do not have to be
                           promulgated specifically to address
                           CERCLA sites.
                             Final rule: The proposed, definition of
                           "applicable" in §§ 300.5 and
                           300.400(g)(l) are revised as follows:
                             1. Consistent with the language in
                           CERCLA section 121(d)(2), the
                           description of federal and state laws in
                           § 300.5 is revised to read:
                           "* * * requirements, criteria or
                           limitations promulgated under federal
                           environmental or state environmental or
                           facility siting law * * *  *"
                           [Comparable changes are made in
§§ 300.415(1), 300.430(e)(2)(i)(A),
300.430(e)(9)(iii)(B) and
300.430(f}(l)(ii)(C).]
  2. The following sentence is added to
§ 300.5: "Only those state standards that
are identified by a state in a timely
manner and that are more stringent than
federal requirements may be
applicable."
  3. In §§ 300.5 and 300.400(g)(l), the
word "found" is added before "at a
CERCLA site."
  Name: Sections 300.5 and
300.400(g)(2). Definition of "relevant and
appropriate."
  Proposed rule: "Relevant'and
appropriate requirements" means those
cleanup standards, standards of control,
and other substantive environmental
protection requirements, criteria, or
limitations promulgated under federal or
state law that, while not "applicable" to
a hazardous substance, pollutant,
contaminant, remedial action, location,
or circumstance at a CERCLA site,
address problems or situations
sufficiently similar to those encountered
at the CERCLA site that their use is well
suited to the particular site.
  Section 300.400(g)(2) identified criteria
that must be considered, where
pertinent, to determine whether a
requirement addresses problems or
situations  that are sufficiently similar to
the circumstances of the release or
remedial action that it is relevant and
appropriate. The preamble'to the
proposed rule emphasized that a
requirement must be both relevant and
appropriate; this determination is based
on best professional judgment. Also, the
preamble stated that with respect to
some statutes or regulations, only some
of the requirements may be relevant and
appropriate to a particular site, while
others may not be (53 FR 51436-37).
  Response to comments: 1.  General.
Several commenters expressed support
in general  for the revised definition of
relevant and appropriate requirements
and for the approach described in the
proposal to identifying such
requirements. Commenters in particular
supported statements that a  requirement
must be both relevant, in that the
problem addressed by a requirement is
similar to that at the site, and
appropriate, or well-suited to the
circumstances of the release and the
site,  to be  considered a relevant and
appropriate requirement.
  A few commenters recommended
changes to the definition of relevant and
appropriate requirements. One
commenter suggested adding to the
proposed definition that a relevant and
appropriate requirement must be

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            Federal Register / Vol. 55, No. 46 / Thursday,  March 8, 1990  / Rules and Regulations
"generally pertinent," a phrase used in
the preamble of the proposed NCP in
discussing the analysis of the relevance
of a requirement, while another
suggested adding "pertinent" to the
circumstances of the site,, expressing
concern that "generally pertinent" was
overly broad. EPA believes that the
concept of "pertinence" is adequately
considered as part of the evaluation of
what is relevant and appropriate (see
discussion of factors for determining
relevant and appropriate requirements,
below). EPA does not believe that the
suggested changes should be made in
the definition itself.
  Another commenter suggested
revising the definition to emphasize the
jurisdictional prerequisites of a
potentially relevant and appropriate
requirement, recommending that a
relevant and appropriate requirement be
defined  as one that, "while not
applicable, sufficiently satisfies the
jurisdictional prerequisites for legal
enforceability." EPA disagrees, because
the jurisdictional prerequisites, while
key in the applicability determination,
are not the basis for relevance and
appropriateness. Rather, the evaluation
focuses  on  the purpose of the
requirement, the physical characteristics
of the site and the waste, and other
environmentally- or technically-related
factors.
  Another  commenter objected to the
policy that some portions of a regulation
could be found relevant and
appropriate, while other portions would
not be. The commenter believed that
this policy would lead to confusion and
inconsistency, although the commenter
agreed that the application of this policy
to RCRA closure requirements,
described in the proposal, was useful.
EPA believes that this policy is
appropriate and reflects its experience
in evaluating RCRA closure
requirements and other requirements as
relevant and appropriate. Finding some
parts of a regulation relevant and
appropriate, and others not, allows EPA
to draw on those standards that
contribute to and are suited for the
remedy and the site, even though all
components of a regulation are not
appropriate.
  This approach has been particularly
valuable as applied to RCRA closure,
where the two applicable regulations,
clean closure and landfill closure,
address only the two poles of a potential
continuum of closure responses. When
RCRA closure is relevant and
appropriate, Superfund may use a
combination of these two regulations,
known as hybrid closure, to fashion an
appropriate remedy for a site that is
protective of both ground water and
direct contact (for more discussion of
hybrid closure, see preamble to the
proposed NCP at 53 FR 51446).
  2. Factors for determining relevant
and appropriate requirements. One
commenter suggested referencing the
criteria described in § 300.400(g)(2) in
the definition. EPA believes this is not
appropriate because it could lead to
confusion about the role of the criteria
and result in greater emphasis on rigidly
applying the criteria than is warranted.
  Based on this latter comment and
others about specific criteria hi the
proposal, EPA wants to clarify the role
of the factors. (Note that the rule now
refers to "factors" rather than
"criteria.") EPA intends that the factors
in § 300.400(g)(2) should be considered
in identifying relevant and appropriate
requirements, but does not want to
imply that the requirement and site
situation must be similar with respect to
each factor for a requirement to be
relevant and appropriate. At the same
time, similarity on one factor alone is
not necessarily sufficient to make a
requirement relevant and appropriate.
Rather, the importance of a particular
factor depends on the nature of the
requirement and the site or problem
being addressed  and will vary from site
to site. While the factors are useful in
identifying relevant and appropriate
requirements, the final decision is based
on professional judgment about the
situation at the site and the requirement
as a whole.
  In addition, as EPA discussed in the
proposal, a requirement must be both
"relevant," in that it addresses similar
situations or problems, and
"appropriate," which focuses on
whether the requirement is well-suited
to the particular site. Consideration of
only the similarity of certain aspects of
the requirement and the site situation
constitutes only half of the analysis of
whether a requirement is relevant and
appropriate.
  After review of comments it received,
EPA has revised the language in
§ 300.400(g)(2) because it is concerned
that it was misleading. Some
commenters viewed the analysis
required by this section as requiring
consideration only of the similarity of
the requirement and the problems or
situation at the CERCLA site. While
non-substantive for the most part, the
changes to § 300.400(g)(2) make clearer
that a requirement and a site situation
must be compared, based on pertinent
factors, to determine both the relevance
and appropriateness  of the requirement.
The rule also now uses the term
"factors," rather than "criteria," a
change instituted to avoid confusion
with the nine criteria for remedy
selection in § 300.430.
  One commenter suggested that factors
be developed for use in evaluating
whether a requirement is "appropriate."
EPA does not believe this is necessary.
Decisions about the appropriateness of
a requirement are based on site-specific
judgments using the same set of factors
already identified. In the abstract it is
very difficult to separate out those
factors to be considered for relevance
and those to be considered for
appropriateness. In specific cases it
would be possible to  say, for example,
that a requirement is relevant in terms
of the substances but not appropriate in
terms of the facility covered.
  Several commenters questioned
whether certain factors could
legitimately be considered in identifying
relevant and appropriate requirements.
These and other comments on individual
factors are discussed below; a brief
description of each factor as described
in the proposed NCP is given after the
name of the factor.
  (i): Purpose of the requirement. This
factor compared the purpose of a
requirement to the specific objectives of
the CERCLA action. One commenter
was  concerned that the "objectives for
the CERCLA action"  could include the
implementability of the remedy, its cost,
and even the acceptability of the action
to the community. This is not what EPA
meant by "objectives." Rather, EPA
intended that this factor consider the
technical, or health and environmental
purpose of the requirement compared to
what the CERCLA action is trying to
achieve. For example, MCLs are
promulgated to protect the quality of
drinking water; this is similar in purpose
to a CERCLA action to restore ground
water aquifers to drinkable quality. To
avoid confusion, EPA has simplified the
factor, which now states, "the purpose
of the requirement and the purpose of
the CERCLA action."
  (ii): The medium regulated by the
requirement. This factor compared the
medium addressed by a requirement to
the medium contaminated or affected at
a CERCLA site. No comments were
received on this factor, and the final rule
is essentially unchanged from the
proposal.
  (Hi): The substances regulated by the
requirement. This factor compared the
substances addressed by a requirement
to the substances found at a CERCLA
site.  Several commenters argued that
RCRA requirements for hazardous
waste should not be potentially relevant
and appropriate to wastes "similar" but
not identical to a hazardous waste, and

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80	Federal Register / Vol. 55, No. 46 /  Thursday, March 8, 1990 / Rules and Regulations
that this criterion should be dropped.
EPA disagrees and has discussed this
issue in the section of this preamble on
RCRA ARARs.
  (iv)t The entities or interests affected
OF protected by the requirement This
factor compared the entities or interests
addressed by a requirement and those
affected by a CERCLA site. Two
commenters expressed concern about
this factor. One commenter was
concerned that it could be used to
disqualify standards from being relevant
and appropriate simply because the
requirement regulated entities different
from those at a CERCLA site. In
contrast, another commenter was
concerned that EPA would broadly
apply requirements to entities that were
never intended to be subject to the
requirement. EPA agrees that this factor
is confusing. EPA believes that the
characteristics intended to be addressed
by this factor are adequately covered
under other factors, such as purpose and
type of facility. Therefore, this factor
has been eliminated.
  (vj: The actions or activities regulated
by the requirement. This factor
compared the actions or activities
addressed by a requirement to those
undertaken in the remedial action at a
CERCLA site. No comments were
received on this factor, and the final rule
is essentially unchanged from the
proposal.
  (v/}:Any variances, waivers, or
exemptions of the requirement. This
factor considered the availability of
variances, waivers, or exemptions from
a requirement that might be available
for the CERCLA site or action. One
commenter asked for clarification on
this factor and expressed his view that
the CERCLA waiver provisions for
ARARs were the only waivers
allowable. However, EPA believes that
it is reasonable to consider the
existence of waivers, exemptions, and
variances under other laws because
generally there are environmental or
technical reasons for such provisions.
These provisions are generally
incorporated into national regulations
because there are specific circumstances
where compliance with a requirement
may be inappropriate for technical
reasons or unnecessary to protect
human health and the environment.
Again, this factor is only one that should
be considered; even if a waiver
provision in a requirement matches the
circumstances at the CERCLA site, there
may be other reasons why the
requirement is still relevant and
appropriate.
  (vii): The type and size of structure or
facility regulated by the requirement.
This factor compared the characteristics
of the structure or facility addressed by
a requirement to that affected by or
contemplated by the remedial action.
One commenter argued that regulations
routinely contain cut-offs based on type
or size of the structure or facility for
administrative or enforcement
convenience. EPA agrees that cut-offs
based solely on administrative reasons
may not be critical in determining
whether a requirement is relevant and
appropriate. However, EPA believes
that it is necessary and appropriate to
consider the physical type or size of
structure regulated because
requirements may be neither relevant
nor appropriate to structures or facilities
that are dissimilar to those that the
requirement was intended to regulate. In
many cases, this factor is a very basic
one: in identifying requirements relevant
to landfills, one would turn to standards
for landfills, not for tanks.
  (viii): Consideration of use or
potential use of affected resources in the
requirement. This factor compared the
resource use envisioned in a
requirement to the use or potential use
at a CERCLA site. One commenter
objected to this factor based primarily
on opposition to EPA's proposed ground
water policy, which, along with the
comments EPA has received on this
issue, is discussed in the section on
ground-water policy in the preamble
discussion of § 300.430. EPA believes it
is appropriate to compare the resource
use considerations in a requirement with
similar considerations at a CERCLA
site.
  Final rule: 1. The following sentence is  .
added to the proposed definition of
"relevant and appropriate" in § 300.5
(see preamble discussion above on
"applicable"): "Only those state
standards that are identified by a state
in a timely manner and that are more
stringent than federal requirements may
be relevant and appropriate."
  2. Proposed § 300.400(g)(2) is revised
as follows:
  (2) If, based upon paragraph (g)(l) of this
section, it is determined that a requirement is
not applicable to a specific release, the
requirement may still be relevant and
appropriate to the circumstances of the
release. In evaluating relevance and
appropriateness, the factors in paragraphs
(g)(2)(i) through (viii] shall be examined,
where pertinent, to determine whether a
requirement addresses problems or situations
sufficiently similar to the circumstances of
the release or remedial action contemplated,
and whether the requirement is well-suited to
the site, and therefore is both relevant and
appropriate. The pertinence of each of the
following factors will depend, in part, on
whether a requirement addresses a chemical,
location, or action. The following
comparisons shall be made, where pertinent,
to determine relevance and appropriateness:
  (i) The purpose of requirement and the
purpose of the CERCLA action;
  pi] The medium regulated or affected by
the requirement and the medium
contaminated or affected at the CERCLA site;
  (iii) The substances regulated by the
requirement and the substances found at the
CERCLA site;
  (iv) The actions or activities regulated by
the requirement and the remedial action
contemplated at the CERCLA site;
  (v) Any variances, waivers, or exemptions
of the requirement and their availability for
the circumstances at the CERCLA site;
  (vi) The type of place regulated and the
type of place affected by the release or
CERCLA action;
  (vii) The type and size of structure  or
facility regulated and the type and size of
structure or facility affected by the release or
contemplated by the CERCLA action;
  (viii) Any consideration of use or potential
use of affected resources in the requirement
and the use or potential use of the affected
resource at the CERCLA site.

  Name: Section 300.400(g)(3). Use of
other advisories, criteria or guidance to-
be-considered (TBC).
  Proposed rule: The preamble to the
proposed rule provided that advisories,
criteria or guidance to-be-considered
(TBC) that do not meet the definition of
ARAR may be necessary to determine
what is protective or may be useful in
developing Superfund remedies (53 FR
51436). The ARARs preamble described
three types of TBCs: health effects
information with a high degree of
credibility, technical information on how
to perform or evaluate site
investigations or remedial actions, and
policy.
  For example, proposed § 300.400(g)(3)
stated that other advisories, criteria, and
guidance to be considered (TBCs) shall
be identified, as appropriate, because
they may be useful in developing
CERCLA remedies. Proposed
§ 300.415(j)(§ 300.4150) in the  final rule)
stated that other federal and state
criteria, advisories, and guidance shall,
as appropriate, be considered in
formulating the removal action.
Proposed § 300.430(b) stated that during
project scoping the lead agency shall
initiate a dialogue with the support
agency on potential ARARs and TBCs.
Proposed § 300.430(e)(2) provided that
other pertinent information may be used
to develop remediation goals. Proposed
§ 300.430(e)(8) provided that the lead
agency shall notify the support agency
of the alternatives to be analyzed to
facilitate the identification of ARARs
and TBGs. Proposed § 300.430(f) on
selecting a remedy, however, referred to
compliance with ARARs only, not TBCs.
Proposed subpart F required that the

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            Federal Register / Vol.  55, No.  46 / Thursday, March 8, 1990 /  Rules and Regulations
                                                                        81
lead and support agencies timely
identify ARARs and TBCs during the
remedial process.
  Response to comments: Several
commenters requested that the category
of "TBCs" be  eliminated entirely.
Commenters argued that the use of
TBCs is not authorized by CERCLA, that
this category of information is too
broadly defined or open-ended, and that
references to TBCs in the NCP mandate
consideration of a seemingly limitless
category of information. One commenter
was concerned that by selecting a health
effect assessments as a TBC candidate,
the precedent for imposition of this TBC
for all sites would be set and may drive
remediation costs beyond cost-
effectiveness. Some commented that
using TBCs in the remedy selection
process will lead to much confusion,
uncertainty, and delay. Also,
commenters suggested that the use of
TBCs could lead to lengthy disputes or
litigation.
  Other commenters contended that the
broad definition of TBCs will give lead
agencies too much discretion when
considering information and determining
cleanup levels. A commenter stated that
wide discretion could produce
inconsistent selection of cleanup goals.
  Several commenters argued that TBCs
have been given ARAR-like  status in the
NCP because the proposal requires that
lead and support agencies shall identify
ARARs and TBCs during the remedial
process. A commenter noted that the
proposal requires identification of TBCs
even when ARARs have been identified,
adding an additional layer of regulatory
activity not authorized by CERCLA.
Another commenter stated that the
proposed rule does not even require
TBCs to be relevant and appropriate.
One commenter stated that the proposal
requires that  TBCs be identified for
remedial actions but does not specify
what is to be  done with them.
Commenters  raised due process
concerns, arguing that, unlike ARARs,
TBCs are not legally promulgated and
may not have been subjected to public
or technical review and comment.
  Commenters suggested that TBCs are
unnecessary for establishing
contaminant  levels because such levels
can be determined by regulations or
during risk assessments. A commenter
proposed that site-specific risk-based
remediation levels should be used.
Another commenter asserted that TBCs
are appropriate for use as general
guidelines, but not as requirements. The
TBCs listed in the preamble often are
not subjected to thorough technical
review and are inappropriate for use as
substitutes for ARARs.
  If EPA retains TBCs in the NCP,
commenters suggested that the category
be more specifically defined and
referred to as helpful reference
information only, or used on a voluntary
basis. A commenter suggested that, if
TBCs are retained, references to their
identification and consideration be
permissive, not mandatory (e.g., "may,
as appropriate, identify TBCs * * *"
rather than "shall identify
TBCs * * *"}. A commenter argued that
EPA should state that remedies selected
through the use of TBCs must be cost-
effective, and that TBCs may be used
only if the remedy selected falls within
the acceptable risk  range.
  Commenters argued that if EPA uses
TBCs to determine cleanup levels, PRPs
must be provided with an opportunity to
challenge their use. A commenter
suggested that the preamble clarify that
requirements more stringent than
ARARs can be imposed only if ARARs
are not protective of human health and
the environment.
  Some commenters requested
clarification that requirements existing
under Indian tribe law and enforced as a
matter of tribal law should be
considered ARARs rather than TBCs.
  On the other hand, one commenter
argued that some TBCs should be given
the same status as ARARs. The
commenter explained that most states
have ARARs for determining ground and
surface water cleanup levels, but
promulgated standards for soil cleanup
are largely unavailable. The commenter
suggested that state policies used to
determine guidance values, criteria or
standards should be given the same
status as ARARs, even if not
promulgated, as long as they are used
consistently within a state.
  In response, EPA believes it is
necessary to clarify how it intends TBCs
to be used. As a first matter, EPA agrees
with commenters that TBCs should not
be required as cleanup standards in the
rule because they are, by definition,
generally neither promulgated nor
enforceable so they do not have the
same status under CERCLA as do
ARARs. TBCs may, however, be very
useful in helping to determine what is
protective at a site, or how to carry out
certain actions or requirements.
   Because ARARs  do not exist for every
chemical or circumstance likely to be
found at a Superfund site, EPA believes
it may be necessary when determining
cleanup requirements or designing a
remedy to consult reliable information
that would not otherwise be considered
to be a potential ARAR. For example,
when an MCLG or  MCL does not exist
for a particular contaminant, EPA
intends that the lead or support agency
use EPA-developed toxicity information
such as cancer potency factors and
reference doses for noncarcinogenic
effects when developing preliminary
remediation goals. Also, many action-
specific ARARs have broad
performance criteria. The technical
information on how to implement such
criteria may be contained in guidance
documents only. The lead or support
agency may need to consider these
guidance documents in determining how
to comply with the ARAR. Also, the lead
or support agency may want to consider
policy statements contained in
advisories, criteria, or guidance when
selecting or designing a remedy.
  Accordingly, even though the use of
TBCs is not specifically discussed in
CERCLA, EPA believes that their use is
consistent with the statutory
requirements to protect human health
and the environment and to comply with
ARARs. This opportunity to consider
TBCs applies to both removal and
remedial actions.
  EPA recognizes, as the commenters
point out, that, unlike ARARs, the
identification and communication of
TBCs should not be mandatory. EPA has
revised the NCP references to TBCs to
make it clear that they are to be used on
an "as appropriate" basis. EPA believes
that TBCs are meant to complement the
use of ARARs by EPA, states, and PRPs,
not to be in competition with ARARs.
  In response to other comments,  even
when TBCs are used, the requirements
imposed on the remedy, including that it
be cost-effective, still apply. Moreover, a
PRP can comment on information
derived from TBCs, including the
reliability and validity of a TBC itself,
when it submits comments on the
proposed plan. PRP challenges to the
use of TBCs are not precluded by EPA's
TBC policy because PRPs may still
assert in their comments that, in a
particular instance, the lead agency's
consideration of TBCs in determining
remediation goals and objectives is not
appropriate or consistent with
CERCLA's mandates that remedies
protect human health and the
environment and be cost-effective.
  Further, EPA does not agree that the
use of TBCs will necessarily lead to
inconsistent selection of cleanup goals.
Better consistency may in fact be
achieved if all lead agencies use EPA-
developed toxicity information for
contaminants for which a standard has
not yet been developed. Finally, Indian
tribal laws may be potential ARARs
when they meet the requirements for
state ARARs (see introductory preamble
section on ARARs, above).

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82
Federal Register / Vol. 55, No.  46 / Thursday, March 8,  1990 / Rules and Regulations
  Final rule: References to TBCs will be
changed in the following sections to
make it clear that their use is
discretionary rather than mandatory:
§§ 300.400{g)(3), 300.415{i], 300.430{b)(9),
300.430{d)(3], 300.430(e) (8] and (9),
300.505(d)(2)(iii), 300.515{d) and (d) (1)
and (2), and 300.515(h)(2).
  Name: Sections 300.400 (g)(4) and
(g)(5). ARARs under state laws.
  Proposed rule: Section 300.400(g)
specified that only promulgated state
standards may be considered potential
ARARs. A promulgated state standard
must be legally enforceable and of
general applicability. The term "legally
enforceable," according to the preamble
to the proposed NCP, means that state
laws or standards which are considered
potential ARARs must be issued in
accordance with state procedural
requirements and contain specific
enforcement provisions or be otherwise
enforceable under state law. The
preamble also explained that "of general
applicability" means that potential state
ARARs must be applicable to all
remedial situations described in the
requirement, not just CERCLA sites (53
FR 51437-38).
  The preamble also discussed a
dispute resolution process to be
followed if there is disagreement about
the identification of ARARs, as well as
policies to be followed if a state insists
that a remedy attain a requirement not
determined to be ARAR (see 53 FR
51437 and 51457).
  Response to comments: Commenters
on this subject called for EPA to
establish a formal procedure to be
followed by states to demonstrate that
proposed state ARARs are legally
enforceable and  of generally
applicability. Commenters suggested
that states be required to provide legal
citations from appropriate sections of
state laws, as well as appropriate
citations to legal authority for issuing
compliance orders, obtaining
injunctions, or imposing civil or criminal
penalties in the event of noncompliance.
These citations, according to
commenters, would demonstrate that
proposed ARARs are legally
enforceable.
  Commenters suggested that general
applicability could be demonstrated by
requiring states to identify the
chemicals, locations, and cleanup
actions to which a proposed ARAR
would apply.
  The proposed NCP did not prescribe a
specific procedure to be used in
evaluating state standards as potential
ARARs. A formal process for
demonstrating that state requirements
are promulgated is not required by
                           CERCLA. EPA believes that the
                           imposition of a formal procedure on
                           states would be a large administrative
                           burden and could impede the cleanup
                           process.
                             EPA expects, however, that states will
                           substantiate submissions of potential
                           ARARs by providing basic evidence of
                           promulgation, such as a citation to a
                           statute or regulation and, where
                           pertinent, a date of enactment, effective
                           date, or description of scope. Because a
                           citation is the minimum needed to
                           positively identify a requirement, EPA
                           has added regulatory language requiring
                           both lead and support agencies to
                           provide citations when identifying their
                           ARARs.
                             Section 300.400(g)(4) specifies that
                           only promulgated state standards that
                           are more stringent than federal
                           requirements and are identified by the
                           state in a timely manner may be
                           considered potential ARARs. If a
                           question is raised as to whether a
                           requirement identified by a state
                           conforms to the requirements for being a
                           potential state ARAR, or is challenged
                           on the basis that it does not conform to
                           the definition, the state would have the
                           burden of providing additional evidence
                           to EPA to demonstrate that the
                           requirement is of general applicability,
                           is legally enforceable, and meets the
                           other prerequisites for being a potential
                           ARAR. If EPA does not agree that a
                           state standard identified by a state is an
                           ARAR, EPA will explain the basis for
                           this decision.
                             Furthermore, the language of CERCLA
                           section 121(d)(2)(A) makes clear, and
                           program expediency necessitates, that
                           the specific requirements that are
                           applicable or relevant and appropriate
                           to a particular site be identified. It is not
                           sufficient to provide a general "laundry"
                           list of statutes and regulations  that
                           might be ARARs for a particular site.
                           The state, and EPA if it is the support
                           agency, must instead provide a list of
                           requirements with specific citations to
                           the section of law identified as a
                           potential ARAR, and a brief explanation
                           of why that requirement is considered to
                           be applicable or relevant and
                           appropriate to the site.
                             Other comments on this section raised
                           objections to EPA's acceptance of
                           general goals as  potential ARARs. One
                           commenter questioned whether such
                           general goals were implementable and
                           satisfied the requirements of a
                           promulgated standard, requirement,
                           criteria, or limitation contained in
                           CERCLA section 121(d). Another
                           commenter argued that attempts to
                           interpret compliance with a general goal
                           will lead to confusion and delay. Several
                           commenters requested clarification of
the status of state nondegradation goals
and whether such goals qualified as
potential ARARs,
  In response, it is necessary to
examine the nature of a general goal in
order to determine whether it may be an
ARAR. General goals that merely
express legislative intent about desired
outcomes or conditions but are non-
binding are not ARARs. EPA believes,
however, that general goals, such as
nondegradation laws, can be potential
ARARs if they are promulgated, and
therefore legally enforceable, and if they
are directive in intent. The more specific
regulations that implement a general
goal are usually key in identifying what
compliance with the goal means.
  For example, in the preamble to the
proposed NCP, EPA cited the example of
a state antidegradation statute that
prohibits the degradation of surface
water below a level of quality necessary
to protect certain uses of the water body
(53 FR 51438). If promulgated, such a
requirement is clearly directive in nature
and intent. State regulations that
designate uses of a given water body
and state water quality standards that
establish maximum in-stream
concentrations to protect those uses
define how the antidegradation law will
be implemented are, if promulgated, also
potential ARARs.
  Even if a state has not promulgated
implementing regulations, a general goal
can be an ARAR if it meets the
eligibility criteria for state ARARs.
However, EPA would have considerable
latitude in determining how to comply
with the goal in the absence of
implementing regulations. EPA may
consider guidelines the state has
developed related to the provision, as
well as state practices in applying the
goal, but such guidance or documents
would be TBCs, not ARARs.
  Final rule: "i. EPA has revised
§ 300.400(g)(4) as follows:
  (4) Only those state standards that are
promulgated, are identified by the state in a
timely manner, and are more stringent than
federal requirements may be applicable or
relevant and appropriate. For purposes of
identification and notification of promulgated
state standards, the term "promulgated"
means that the standards are of general
applicability and are legally enforceable.
  2. Also, language has been added to
§ 300.400(g)(5) requiring that specific
requirements for a particular site be
identified as ARARs, and that citations
be provided.
  Name: Section 300.515(d)(l). Timely
identification of state ARARs.
  Proposed rule: Section 300.515(d)(l)
stated that the lead and support
agencies shall identify their respective

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            Federal Register  /  Vol. 55, No. 4e / Thursday, March 8, 1990 / Rules  and Regulations
                                                                        83
ARARs (and may identify TBCs) and
communicate them to each other in a
timely manner such that sufficient time
is available for the lead agency to
incorporate all potential ARARs  and
TBCs without inordinate delay and
duplication of effort.
  Section 300.515(d)(2) provided  that a
SMOA may specify timeframes for
identification of ARARs and TBCs. In
the absence of a SMOA, § 300.515(h)(2)
provided that the lead and support
agencies shall discuss potential ARARs
and TBCs during the scoping of the RI/
FS. This section also required the
support agency to communicate in
writing potential ARARs to the lead
agency within 30 working days of the
receipt of a request from the lead agency
for potential ARARs at two steps in the
process: no later than when site
characterization data are available, and
prior to the initiation of the comparative
analysis. The preamble to the proposed
rule (53 FR 51438) explained that
different types of ARARs can be
identified at various points in the RI/FS
process: chemical-specific and location-
specific ARARs after site
characterization, and action-specific
ARARs after development of
alternatives.
  Response to comments: Several
commenters argued that even states
with SMOAs should be required to
identify potential ARARs within 30
working days of the receipt of a request
from the lead agency. EPA believes,
however, that it is appropriate to allow
the timeframes for identification of
potential ARARs to be negotiated as
part of a SMOA, and therefore does not
agree with this comment.
  The purpose of the SMOA is for EPA
and a state to agree on their respective
roles and responsibilities during EPA-
lead and state-lead response actions. A
mutually acceptable timeframe for
identifying ARARs is certainly an
important component of the decision-
making process. Such discussion may
also lead to agreement on other
important ARARs coordination issues
such as the appropriate EPA/state
management staff level for
communication of ARARs.
  One commenter stated that the 30-day
requirement is too short, especially for
Indian tribes who may not have  well-
developed systems for identifying and
compiling tribal laws. Another
commenter suggested that states be
given a minimum of 20 working days to
respond to a request for ARARs to
account for numerous levels of authority
involved in the response. Based  on
program experience, EPA believes a
period of 30 working days is appropriate
for a support agency to respond  to a
lead agency request for ARARs in the
absence of a negotiated timeframe in a
SMOA. The necessity for a longer
period should be agreed upon during
SMOA negotiations.
  Commenters suggested that the
discussion of timely identification of
ARARs be revised to allow for ARARs
identified after the signing of the ROD to
be considered legally equivalent to
ARARs identified prior to ROD signing.
Commenters pointed out that many
potential action-specific ARARs  cannot
be identified until the remedial design
phase, which occurs after ROD signing.
EPA believes that remedial actions
should be  required to comply with
ARARs identified by the lead and
support agencies before the ROD is
signed and should not be required to
comply with ARARs identified after that
time, provided such ARARs could have
been identified before the ROD was
signed. However, if a component of a
remedy is  not identified at the time of
ROD signing, requirements in effect
when the component is later identified
(e.g., during remedial design) will be
used to determine ARARs. In addition,
remedies will comply with requirements
promulgated after ROD signature if
necessary to maintain protectiveness
(these issues are discussed in greater
detail below in the  section on
"Consideration of newly promulgated or
modified requirements.")
  Final rule: EPA is promulgating the
rule as proposed except that references
to TBCs have been modified (see
preamble section on TBCs).
  Name: Section 300.430(f)(l)(ii)(C).
Circumstances in which ARARs  may be
waived.
  Introduction: CERCLA reauthorization
modified somewhat the 1985 NCP's five
circumstances in which a specific ARAR
need not be attained. Four of the original
waivers were essentially codified, and
two new waivers added (equivalent
standard of performance and
inconsistent application of state
requirements). These waivers, which by
statute apply to on-site remedial
activities, must be invoked for each
ARAR that will not be attained; the
waivers apply only to attainment of
ARARs and not to any other CERCLA
statutory requirements for remedial
actions, such as protection of human
health and environment. Since today's
rule also requires removal actions to
comply with ARARs to the extent
practicable, these waivers are also
available  for removals, as discussed in
the preamble for § 300.415(1).
  Proposed rule: The proposed NCP
revisions essentially incorporated the
statutory language  of the waivers in the
rule without amplification or significant
modification in proposed
§ 300.430(f)(3)(iv) (renumbered as final
§ 300.430(f)(l)(ii)(C)). The preamble to
the proposal did, however, discuss
criteria and circumstances under which
the waivers might be invoked (53 FR
51438).
  Each waiver is discussed below in
terms of the proposed criteria,
comments on the criteria, and EPA's
response to comments. Unless explicitly
stated otherwise, the criteria under each
waiver may be presumed to remain the
same as described in the preamble to
the proposed rule.
  Response to comments: Two general
comments were made about use of
waivers. One commenter suggested that
the probability of exposure be allowed
as grounds for a waiver; for example,
the low probability of exposure at a
remote site would allow an ARAR such
as for drinking water levels in
groundwater to  be waived. EPA does
not believe that there is authorization to
use exposure probability as grounds for
a waiver. Exposure probability may
suggest what standards have  to be
attained (as with groundwater that may
be used for drinking), but cannot exempt
a CERCLA response from what would
otherwise be ARAR.
  Another commenter suggested that
waivers be interpreted broadly and used
more frequently to expedite response
and conserve the Fund. The commenter
gave as an example waiving MCLs for
Class II groundwater that is not likely to
be used for drinking water. EPA
acknowledges that waivers of ARARs
may be used more frequently in the
future as more experience is gained
about the practicability of remedies, the
nature of state requirements,  etc.
However, EPA may invoke waivers only
when appropriate under the terms of the
statute, and not simply when it might be
desirable to expedite an action. EPA
also notes that a specific waiver is
available to help conserve the Fund.
  Final rule: EPA is promulgating the
rule as proposed.
  Name: Section 300.430(f)(l)(ii)(C)(i).
Interim measures.
  Proposed rule: This waiver is intended
for interim measures which by their
temporary nature do not attain all
ARARs. The criteria proposed were that
an interim measure for which this
waiver is invoked should be followed
within a reasonable time by complete
measures that attain ARARs, and that
the interim measure should not
exacerbate site problems nor interfere
with the final remedy (53 FR 51438-39).

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84	Federal Register / Vol. 55, No. 46 / Thursday, March 8,  1990 / Rules and Regulations
  Response to comments: One
commonter stated that EPA should
define the term, "reasonable time," to
put a limit on the amount of time
between an interim measure and
completion. The commenter was
concerned that the waiver could be used
to delay completion of a remedial action
unless a time limit, such as 3 years, is
imposed. EPA believes that putting a
specific time limit as a pre-condition for
invoking this waiver is impractical
because it is difficult to predict exactly
when complete measures can be
undertaken, given changes in funding,
priorities, and other factors.
  Another commenter advised that this
waiver should not be used to impose
needless, duplicative costs in
remediation by requiring unnecessary
interim steps. EPA agrees that interim
actions should be consistent with a final
remedy to the extent the latter can be
anticipated. This point is addressed in
part by the criterion that the interim
measure should not interfere with the
final remedy.
  Final rule: EPA is promulgating the
rule as proposed.
  Name: Section 3Q0.430(f)(l)(ii)(C)(2).
Greater risk to health and the
environment.
  Proposed rule: This waiver is intended
for ARARs whose implementation will
cause greater risk to human health and
the environment than non-compliance.
The criteria proposed for this waiver
included magnitude, duration, and
reversibility of adverse impacts due to
compliance with an ARAR compared to
a remedy not complying with that ARAR
(53 FR 51439).
  Response to comments: Commenters
did not specifically disagree with the
criteria. One commenter advised caution
in invoking this waiver because of the
uncertainties in accurately assessing
risks and the delays that could ensue
from disagreements about these risks.
The commenter also said that full public
input should be sought before invoking
this waiver. In response, EPA notes that
public input is required through the
proposed plan, which must describe use
of a waiver. EPA agrees that risk
assessment has uncertainties, but
believes that careful assessments that
reveal greater risks from compliance
with ARARs may be grounds for using
this waiver.
  Another commenter objected to the
preamble discussion for suggesting that
the alternative to which compliance
with an ARAR is compared is limited to
a "no-action" alternative. While the
examples provided perhaps suggest that
the alternative might have been no
action (as with PCB contamination),
EPA certainly does not intend that the
alternative to which a potentially high
risk remedy is compared must be the no-
action alternative. As with the example
of excavation, there may be other active
measures such as capping which can be
taken if the ARAR-compliant remedy
poses unacceptably high risks.
  Final rule: EPA is promulgating the
rule as proposed.
  Name: Section 300.430(f)(l)(ii)(C)(3).
Technical impracticability.
  Proposed rule: This waiver is intended
when compliance with an ARAR is not
technically practicable from an
engineering perspective. The criteria
proposed for this waiver included
engineering feasibility and reliability,
with cost generally not a major factor
unless compliance would be
inordinately costly. Both standard and
innovative technologies should be
considered before invoking this waiver
(53 FR 51439).
  Response to comments: Several
commenters addressed the issue of cost.
Some asserted that cost has no role in
determining technical practicability, and
should be dropped from consideration.
Others stated that cost should play a
more explicit role by being one of the
criteria (along with feasibility and
reliability). EPA believes that cost
should generally play a subordinate role
hi determining practicability from an
engineering perspective. Engineering
practice is in reality ultimately limited
by costs, hence cost may legitimately be
considered in determining what is
ultimately practicable. On the other
'hand, if cost were a key criterion in
determining the practicability of an
ARAR, ARARs would likely be
subjected to a cost-benefit analysis
rather than a test of true practicability.
  One commenter argued that the
waiver should be invoked even when an
innovative technology is available that
may achieve  an ARAR unless EPA
presents evidence that the technology
will be reliable and effective. In the
proposal EPA stated that the technical
impracticability waiver should not be
used where either existing or innovative
technologies  can reliably, logically, and
feasibly attain the ARAR. Innovative
technologies  are encouraged by the
statute and, in accordance with criteria
presented elsewhere in the  rule, should
be employed to attain ARARs where
appropriate; the burden of presenting
information on such technologies would
be on the PRP, not EPA.
  One commenter suggested that this
waiver should be granted for any
carcinogen with an MCLG of zero. The
role of MCLGs and MCLs is discussed
below in today's preamble. EPA notes
that because elimination of
contamination to a level of zero is
infeasible, this waiver would probably
have to be invoked where an ARAR is
zero.
  Final rule: EPA is promulgating the
rule as proposed.
  Name: Section 300.430(f)(l)(ii)(C)(4).
Equivalent standard of performance.
  Proposed rule: This waiver is intended
where the standard of performance of a
requirement can be equaled or exceeded
through another method. The criteria
proposed included degree of protection,
level of performance, reliability into the
future, and time required for results (53
FR 51439-40).
  Response to comments: Several
commenters maintained that a broader
interpretation of the waiver should be
used than that proposed by EPA.
Specifically, they argued for a case-by-
case analysis of concentrations at
realistic points of exposure as the best
measure of equivalent performance. In
other words, they would use an
evaluation of exposure risk  as the
measure of equivalent performance,
allowing an entirely different remedial
approach than that specified in a
requirement as long as the final risk
level is the same.
  EPA disagrees fundamentally with
this approach, which EPA believes is far
broader than what Congress intended.
As another commenter noted, the
purpose of the waiver is to allow
alternative technologies that provide a
degree of protection as great or greater
as the specified technology. The
language from the Conference Report on
SARA makes clear the narrower
purpose of this waiver for the use of
alternative but equivalent technologies;
comparison based on risk is only
permitted where the original standard is
risk-based:
  This [waiver] allows flexibility in the
choice of technology but does not allow any
lesser standard or any other basis (such as a
risk-based calculation) for determining the
required level of control. However, an
alternative standard may be risk-based if the
original standard was risk-based.

H.R. Rep. No. 962, 99th Cong., 2d Sess.
(1986) ("Conference Report  on SARA")
at p. 249. Another commenter believed
that EPA's criteria are unnecessarily
restrictive, in that these criteria should
be balanced in evaluating an alternative
rather than required to be equaled or
exceeded. EPA believes that the first
three criteria, i.e., degree  of protection,
level of performance, and future
reliability, should at least be equaled for
an alternative to be considered
equivalent. While it is possible that

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            Federal Register / Vol.  55, No. 46 / Thursday,  March 8, 1990 /  Rules and Regulations
                                                                          85
there may be redundancy among the
three, a lesser level in any of these
criteria would compromise equivalency
with the original standard.
  Regarding the fourth criterion, EPA
proposed that the time required to
achieve results  using the alternative
remedy should not be significantly more
than that required under the waived
ARAR. Several commenters objected to
this criterion, arguing that it could
preclude less expensive technologies or
ones that provide greater protection or
reliability. They were also troubled by
the vagueness of the standard of
"significantly more."
  EPA appreciates the concerns raised
by these commenters regarding the role
of time hi evaluating an alternative for
this waiver. The standard proposed was
not specific precisely in order to allow
cases where alternative methods may
provide great benefits even though
requiring longer time  for
implementation, as with, for example,
the use of bioremediation instead of
incineration. While EPA still believes
that the time required to implement an
alternative should be considered in
using this waiver, with a bias toward
quicker remedies, EPA recognizes the
validity of commenters' claims that the
duration should be balanced against
other beneficial factors and should not
be a necessary condition for
equivalence.
  A final commenter  expressed concern
that this waiver as interpreted by EPA
would actually require the  alternative to
exceed the level of protectiveness
provided by the ARAR. EPA does not
believe that the criteria that have been
proposed for this waiver in any way
require that the  alternative be more
protective than the ARAR, rather, that it
be at least as protective as the ARAR.
  Final rule: EPA is promulgating the
rule as proposed.
  Name: Section 300.430(f)(l)(ii)(C)(5).
Inconsistent application of state
requirements.
  Proposed rule: This waiver is intended
to prevent application to Superfund sites
of state requirements that have not been
consistently applied elsewhere in a
state. A standard is presumed to have
been consistently applied unless there is
evidence to the  contrary. The preamble
to the proposed NCP explained that
consistency of application may be
demonstrated by the similarity of sites
or response circumstances, the
proportion of noncompliance cases,
reasons for noncompliance, and
intentions to apply future requirements.
Intent can be demonstrated by policy
statements, legislative history, site
remedial planning documents, or state
responses to federal-lead sites (53 FR
51440).
  Response to comments: Several
commenters disagreed with EPA's
position that potential state ARARs will
be considered to have been consistently
applied in the past unless evidence
exists to the contrary. Commenters also
disagreed with EPA's position on state
intentions to consistently apply new
ARARs. Commenters argued that the
statutory language and the legislative
history of CERCLA do not contain any
basis for EPA's position that potential
state ARARs will be presumed to have
been consistently applied unless
evidence exists to the contrary.
  Commenters suggested that EPA
develop a formal procedure to be
followed by states in demonstrating the
consistency of past and future.
application of standards. One
commenter argued that states should
bear the burden of proof and should be
required to document past applications
of potential ARARs.
  For those ARARs with established
implementation records, commenters
favored a policy by which consistent
application would be based on
documented evidence supplied by the
states. One commenter suggested that
states be required to provide a list of
enforcement actions  as evidence in
demonstrating consistent  application.
Another commenter favored the
publication of all legally applicable state
ARARs in a publicly available
document, with appropriate review and
comment periods.
  For new ARARs without sufficient
records of application, one commenter
suggested that states should be required
to develop an implementation plan for
the new ARAR and demonstrate that
sufficient funds exist to carry out the
plan. Additionally, this commenter
proposed that PRPs should have the
opportunity to forego compliance with
an ARAR if a state does not implement
the ARAR in accordance with
announced intentions. Another
commenter suggested that state
intentions to consistently implement an
ARAR be recorded in an official record.
  In response, the proposed NCP did not
contain a specific procedure to be
followed by states in demonstrating
consistent application of state
standards. Rather, the preamble
describes what information can be
submitted for EPA review when the
consistency of application of a
particular requirement is questioned.
  A standard is presumed to have been
consistently applied unless EPA
questions that conclusion or requests
additional information to substantiate
the conclusion. EPA continues to believe
 that it is proper to presume that a state
 has consistently applied (or in the case
 of a newly adopted standard "intends to
 consistently apply"] a standard unless
 there is reason to believe otherwise.
 CERCLA section 121(f)(4) is written such
 that this waiver may be invoked when
 the President finds that a state
 requirement is inconsistently applied.
 CERCLA does not require states to
 demonstrate consistent application in
 order for a requirement to be considered
 an ARAR. Also, imposing an up-front
 formal procedure on states for
 demonstrating consistent application
 would impose a heavy administrative
 burden. A special implementation plan
 for newly-promulgated requirements is
 likewise not required by statute and
 would be unnecessarily burdensome on
 states. States have the option of
 providing evidence of consistent
 application if EPA is considering
 waiving a standard. In such a  case, the
 type of evidentiary showings suggested
 by commenters may be appropriate.
  Final rule: EPA is promulgating the
 rule as proposed.

  Name: Section 300.430(f)(l)(ii)(C)(0).
 Fund-balancing.
  Proposed rule: The proposed section
 is based on CERCLA section
 121(d)(4)(F), which states that this
 waiver may be used for Fund-financed
 actions  under CERCLA section 104 only.
 The proposal stated that an alternative
 may be  selected that does not attain all
 ARARs when EPA determines that the
 ARAR-compliant alternative will not
 provide a balance between the need for
 protection of human health and the
 environment at the site and the
 availability of Fund monies to respond
 to other sites that may present a threat
 to human health and the environment.
 Further  conditions for using this waiver
 were explained in the preamble to the
 proposed NCP (53 FR 51440).
  The preamble solicited comment on
 EPA's intention to establish a dollar
 threshold and specific  criteria  for
routinely invoking this waiver. The
 threshold would be based on an amount
 significantly higher than the average
 cost of remediating sites with problems
 similar to those at the site under
consideration, e.g., the cost of
addressing large municipal landfills.
  Response to comments: Many of the
comments received on establishing a
dollar threshold were opposed to it,
generally because such a threshold
would be arbitrary. One commenter
argued that a site cleanup should not be
compromised because  of a possible
future funding shortage elsewhere.
Other commenters noted that the

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86	Federal Register / Vol. 55. No. 46  /  Thursday, March 8, 1990 / Rules and Regulations
amount of money in the Fund is in a
steady state of flux and that a fixed
dollar threshold would not recognize the
dynamic nature of the Superfund
program (e.g., PHP-financed responses
may have an impact on the Fund.)
Establishing an arbitrary dollar
threshold is not the proper methodology
for this waiver, asserted one commenter.
Rather, if an alternative would not
attain an ARAR, yet would still fall
within the acceptable risk range, then it
would warrant selection. Another
commenter disagreed with a threshold
amount and advised EPA to focus on
minimizing Fund-financed cleanups
rather than raising the specter of a lower
nationwide level of cleanup effort
because the Fund may be depleted.
  Some commenters supported
establishing a dollar threshold.  One
commenter suggested a threshold of 15
percent over the average cost of
remediation at similar types of
Superfund sites. Another stated that a
threshold addresses the realities of a
limited pot of money for the national
remediation effort. This commenter
recommended calculating the average
remedial cost for specific types of sites
over 5 years. Such information would be
updated periodically to account for
inflation and increased costs of
treatment and new technologies.
Thresholds could be set at one  standard
deviation above the mean. Another
commenter appeared to support the
threshold but stated that Congress
intended that this waiver be used only
in extraordinary circumstances where
the Fund resources may be seriously
depleted. This commenter argued that
exceeding a dollar threshold should
result in only an examination of the
waiver, not a presumption to invoke the
waiver.
   In response, the reason for having a
Fund-balancing waiver is to ensure that
EPA's ability to carry out a
comprehensive national response
program is not compromised by the
expenditure of the Fund at a single site.
EPA has decided to establish a policy to
routinely consider—not necessarily
 invoke—the Fund-balancing waiver at a
 threshold point. EPA will use this
 threshold as a guideline, rather than a
 requirement, because of the dynamic
 nature of both the program and of the
 amount of funds annually appropriated
 to the program by Congress. EPA
 believes that it is appropriate to
 consider the Fund-balancing waiver for
 unusual, very costly cases. EPA believes
 that when a single action would be four
 times the cost of an average operable
 unit, it could compromise EPA's ability
 to conduct actions at other sites.
Therefore, EPA has decided that the
lead agency should routinely consider
the Fund-balancing waiver when the
cost of a remedy attaining an ARAR is
four times the current average cost of an
operable unit. EPA also reserves the
right to invoke the waiver in specific
situations when the cost of the remedy
is expected to fall below the threshold
and EPA determines that the single site
expenditure would place a
disproportionate burden on the Fund.
  In response to comments on use of
this waiver by federal agencies other
than EPA and by PRPs, EPA notes that
CERCLA section 121(d)(4)(F) clearly
restricts use of this waiver to response
actions conducted under CERCLA
section 104 using the Fund, i.e., financed
by the Hazardous Substance Superfund.
Therefore, this waiver is unavailable for
other federal agencies.
  Final rule: EPA is promulgating the
rule as proposed.
  Name: Section 300.430(e)(2)(i)(B). Use
of maximum contaminant level goals for
ground-water cleanups.
  Proposed rule: CERCLA section 121(d)
states that a remedial action will attain
a level or standard of control
established under the Safe Drinking
Water Act (SDWA), among other
statutes, where such level or control is
applicable or relevant and appropriate
to any hazardous substance, pollutant or
contaminant that will remain on-site.
The enforceable standards under the
SDWA are maximum contaminant
levels (MCLs)  which represent the
maximum permissible level of a
contaminant which is delivered  to any
user of a public water system. Section
121(d) also states that remedial actions
shall attain maximum contaminant level
goals (MCLGs) where such goals are
relevant and appropriate to the
circumstances of the release.
   Proposed § 300.430(e)(2)(i)(B) reflected
EPA's determination that MCLs
generally shall be considered relevant
and appropriate standards when
determining acceptable exposure for
ground water and surface water that is a
current or potential source of drinking
water. This section also stated that in
cases involving multiple contaminants
 or pathways where the risk is in excess
 of 10~4, MCLGs may be considered
when determining acceptable exposures.
   An MCLG is a health-based goal set
 at a level at which no adverse health
 effects may arise, with a margin of
 safety. An MCL is required to be set as
 close as feasible to its respective MCLG,
 taking into consideration the best
 technology, treatment techniques, and
 other factors (including cost). MCLs for
 noncarcinogens are nearly always set  at
MCLGs. Many MCLGs for carcinogens,
however, are set at zero. MCLs for
carcinogens are set above zero.
  In the preamble to the proposed rule
(53 FR 51441-42), EPA explained that
MCLs rather than MCLGs generally are
relevant and appropriate to the cleanup
of ground water that is or may be used
for drinking because MCLs are the
enforceable standards under the Safe
Drinking Water Act (SDWA), the MCLs
for carcinogens are within EPA's
acceptable risk range, and MCLs are
protective. MCLs represent the level of
water quality that EPA believes is
acceptable for over 200 million
Americans to consume every day from
public drinking water supplies. EPA
decided that Superfund cleanup of
drinking water should use the same
standards as EPA's drinking water
program.
   Since MCLs are usually only legally
applicable under the SDWA to the
quality of drinking water at  the tap,
there will be few instances in which
MCLs are applicable to cleanup of
ground water at a Superfund site. For
this reason, MCLs are generally
considered "relevant and appropriate"
to ground water that is or may be used
for drinking. The preamble to the
proposed rule further explained that
MCLGs may be relevant and
appropriate where the risk posed by
multiple contaminants or pathways was
in excess of lO'4 (53 FR 51441).
   Response to comments: The majority
of commenters supported the proposed
NCP's policy on the use of MCLs rather
than MCLGs as generally relevant and
appropriate standards. Many of these
commenters argued that MCLs should
generally be the cleanup standard
because they are protective of human
health and the environment, are
generally set at practical limits of
detection, fall within EPA's acceptable
risk range, and are the enforceable
standards under the Safe Drinking
Water Act and other environmental
programs, e.g., MCLs are used as
ground-water protection standards
under RCRA.
   Some agreed with EPA that it makes
little sense to require MCLGs because
the result would be that the water
around Superfund sites would be
cleaner than the water used for drinking.
 Others argued that requiring MCLGs
would undermine SDWA's use of MCLs
 as enforceable drinking water
 standards. Commenters argued that
MCLGs for ground-water cleanups equal
 to zero are unattainable and not
 detectable, primarily because no
 adequate technologies are presently
 available. A commenter further stated

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                                                                            87
 that the purpose of MCLGs is not to
 establish cleanup levels and that
 MCLGs have no relationship to the
 circumstances at a Superfund site.
 Another commenter argued that cleanup
 standards other than MCLs are often
 impractical to measure.
   Commenters also observed that
 cleanup levels determined by MCLGs
 may not be attainable. One commenter
 argued that limitations in cleanup
 techniques and analytical methodology
 would make it impossible to achieve
 MCLGs, waivers would have to be used,
 and remediation schemes would become
 needlessly complex and prolonged.
 Some commenters agreed with EPA's
 statement that CERCLA does not require
 EPA to eliminate all risks.
   One commenter noted that MCLs for
 carcinogens are all within EPA's
 acceptable risk range. A commenter
 further stated that the use of MCLGs is
 inconsistent with the requirement that
 additive risks not exceed 10~4. This
 commenter argued that because MCLGs
 represent zero risk, the use of MCLGs
 undermines EPA's risk assessment
 policy.
   Other comments appeared to
 generally support the use of MCLs but
 advised that MCLs  should not be used in
 certain situations. A commenter
 cautioned that EPA must assure that
 technical  problems with measuring
 compliance are resolved. Also, this
 commenter argued that MCLs must be
 applied with flexibility because they
 may be overly conservative. Another
 commenter stated that MCLs should not
 be used where aquifers are not likely to
 be employed as drinking water sources
 or where MCLs may be technically
 unachievable.
   Other commenters generally
 supported EPA's proposal but disagreed
 that MCLGs should ever be used for
 multiple contaminant or pathway
 situations posing risk in excess of 10~4.
 Another commenter contended that
 MCLs provide adequate protection in
 most cases of potential multiple
 exposure.
   Several of the comments opposed to
 the proposal argued that the MCL policy
 is in direct conflict with the statutory
 language.  These commenters contend
 that MCLs are not sufficiently protective
 of human  health because cost and
 technical feasibility factors are
 considered when developing MCLs and
 that cost considerations cannot be
 considered until health standards are
 determined. Some argued that cleanup
 levels should be based on either MCLGs
 or health-based standards.
  One commenter argued that it is
 inappropriate for Superfund to use
MCLs because the technologies
 available for Superfund cleanups are
 different than the technologies used to
 treat water at public treatment works.
 The commenter stated that EPA should
 not confine Superfund's cleanup to
 financial and technological realities
 experienced by municipal water systems
 and that Congressional intent was that
 Superfund cleanup standards must be
 more stringent than standards that apply
 to public drinking water systems.
  A commenter argued that CERCLA
 requires EPA to establish tough upfront
 cleanup standards [i.e., MCLGs] and
 that EPA should be required to explain
 to a community when it needs to waive
 such requirements on a specific site. It is
 concerned that, behind closed doors,
 cleanup remedies that are more
 protective of public health will be
 eliminated on the basis of cost or other
 problematic criteria.
  EPA has carefully considered the
 lengthy and disparate comments on the
 use of MCLs and MCLGs as potential
 relevant and appropriate requirements
 for the cleanup of ground and surface
 water at CERCLA sites. As a threshold
 matter, EPA disagrees with those
 commenters that assert that MCLGs can
 never be relevant and appropriate.
 Congress directed EPA in CERCLA
 section 121(d)(2)(A) to attain MCLGs
 "where relevant and appropriate under
 the circumstances of the release,"
 suggesting that MCLGs may be relevant
 and appropriate in some but not
 necessarily all situations. The proposed
 rule itself noted that there may be
 situations in which MCLGs—rather than
 MCLs—are  the relevant and appropriate
 standard, such as where multiple
 contaminants or pathways of exposure
 heighten risk to human health (e.g., risk
 greater than 10~4). 53 FR at 51441.13
 However, EPA took the position in the
 proposed rule that consideration of
 MCLGs as potential relevant and
 appropriate requirements should be
 limited to those high-risk situations just
 mentioned. Now, based on the public
 comments and a re-examination of the
 issue, EPA has modified its position on
 when MCLGs are to be considered
 potential relevant and appropriate
 requirements.
  EPA's opinion is that where an MCLG
 establishes a contaminant level above
 zero, it is appropriate and consistent
 with the language in CERCLA section
121(d)(2)(A) to consider that MCLG as a
potential relevant and appropriate
requirement, with determinations to be
 made on a site-specific basis as to the
 relevance and appropriateness of
 meeting that level under the
 circumstances of the release.14 When an
 MCLG is determined not to be relevant
 and appropriate to the circumstances of
 the release, the corresponding MCL will
 be considered a potential relevant and
 appropriate requirement and will be
 evaluated under the circumstances of
 the release.15 Site-specific assessments
 of whether a requirement is relevant and
 appropriate will be made based on the
 factors set out in § 300.400(g)(2).
   Further, EPA believes, consistent with
 a number of comments, that where an
 MCLG is equal to zero level of
 contaminants (as is the case for
 carcinogens), that MCLG is not
 "appropriate" for the cleanup of ground
 or surface water at CERCLA  sites. In
 such cases, the corresponding MCL will
 be considered as a potential relevant
 and appropriate requirement, and
 attained where determined to be
 relevant and appropriate under the
 circumstances of the release. This
 approach best harmonizes  the multiple
 directions of the statute to  consider
 MCLGs,  MCLs, and practicability.16
   By requiring CERCLA remedies to
 attain MCLGs only when "relevant and
 appropriate," section 121(d)(2) of the
 statute affords EPA considerable
 discretion. It is EPA's opinion that
 MCLGs of zero, while reasonable as
 non-enforceable goals under the SDWA,
 are not appropriate as cleanup
 standards under the terms of CERCLA
 for several reasons. First, the purpose of
 MCLGs under the SDWA is much
 different from the purpose of ARARs
 under CERCLA section 121. Examining
 the purpose of a requirement  is one of
 the criteria used in the NCP to determine
 whether  a requirement is relevant and
  13 As noted in the final rule, EPA believes it may
also be appropriate to consider exposure criteria
and other factors set out in § 300.430(e)(2)(i)(A) of
the rule in cases involving multiple contaminants or
pathways that present risks in excess of 10~4
  14 Statutory waivers may also be available on a
site-specific basis. CERCLA section 121(d)(4).
  15 For noncarcinogens, MCLs generally are set
equal to MCLGs. EPA establishes all MCLs, i.e., for
carcinogens and noncarcinogens, at levels that
protect human health.
  16 Compare CERCLA section 122(d)(2)(A]
("remedial action shall require a level or standard
of control which at least attains maximum
contaminant level goals established under the Safe
Drinking Water Act * * * where such goals or
criteria are relevant and appropriate * * * *");
section 121(d)(2)(A)(i) (remedial action shall require
a level or standard of control which at least attains
"any standard, requirement *  * * under any
Federal environmental law, including * * * the
Safe Drinking Water Act [e.g., MCLs]  * * * [that]
is legally applicable to the * * * contaminant
concerned or is relevant and appropriate * * * *");
and section 121(b) ("The President shall select a
remedial action that  * * * utilizes permanent
solutions and alternative treatment technologies or
resource recovery technologies to the maximum
extent practicable.")

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Federal Register  /  Vol. 55, No.  46 / Thursday,  March 8, 1990 / Rules and Regulations
appropriate to the circumstances of a
release, NCP § 300.400(g)(2)(i).17
  The purpose of MCLGs under the
SDWA is to set goals for both
carcinogens and noncarcinogens, at a
level at which "no adverse or
anticipated effects on the health of
persons occur and which allow an
adequate margin of safety." SDWA
section 1412(b)(l)(B). See also House
Report No. 1185,93rd Cong., 2d Sess. at
20 {July 10,1974). The MCLGs are the
basis from which legally enforceable
MCL standards are set; MCLs are
designed to come as close as feasible to
the respective MCLG, taking into
account the best technology, treatment
techniques and other factors (including
cost). SDWA section 1412(b)(3); 50 FR
40881 (Nov. 13,1985). As explained in
the House debate on the SDWA:
  The Administrator will have to make two
judgments. He will have to determine what
the nealth goal—recommended maximum
contaminant level [now known as the
MCLG]—should be. If there is no known safe
threshold, the recommended level should be
set at zero. But this Is not a requirement
which Is enforceable against public water
systems.
120 Cong. Rec. 38366-36403 (statement of
Cong. Rogers) (daily ed., Nov. 19,1974),
reprinted in Senate Committee on
Environment and Public Works, 97th
Cong., 2d Sess., A Legislative History of
the Safe Drinking Water Act at 652
(Comm. Print 1982) (emphasis added).
   EPA establishes MCLGs under SDWA
at threshold levels—with a margin of
safety—for non-carcinogens, and at a
zero level for carcinogens where the
 threshold level is not known. Congress
must be assumed to have been aware of
 this distinction when it required
CERCLA remedies to use only those
MCLG goals that are relevant and
 appropriate in setting  enforceable
 standards to be attained at a site.
   EPA also believes that MCLGs of zero
 are not appropriate for determining the
 actual cleanup levels to  be attained
 under CERCLA because CERCLA does
 not require the complete elimination of
 risk or of all known or anticipated
 effects; i.e., remedies under CERCLA are
 not required to entirely eliminate
 potential exposure to  carcinogens.
 CERCLA section 121 does direct, among
 other requirements, that remedies
 protect human health and the
 environment, be permanent to the
 maximum extent practicable and be
 cost-effective. Remedies at Superfund
                            sites comply with these statutory
                            mandates when the amount of exposure
                            is reduced so that the risk posed by
                            contaminants is very small, i.e., at an
                            acceptable level. EPA's risk range of
                            10~4to 10~6represents EPA's opinion on
                            what are generally acceptable levels. A
                            contaminant level of zero, and the
                            corresponding "no risk" level, are not
                            consistent with the cleanup objectives of
                            the CERCLA program. (Note that EPA
                            has determined that MCLs for
                            carcinogens protect human health
                            because they generally fall within this
                            acceptable risk range. See 54 FR 22093-
                            94 (May 22,1989); 52 FR 25700-01 (July 8,
                            1987).)
                              Another reason that EPA believes that
                            an MCLG of zero is not "appropriate" is
                            that it is impossible  to detect whether
                            "true" zero has actually been attained.
                            EPA discussed the scientific difficulty in
                            demonstrating zero contaminant levels
                            during the 1985 rulemaking on MCLGs:
                              EPA has emphasized in the rulemaking that
                            zero is not a measurable level in scientific
                            terms and will continue to emphasize that
                            point to the public. That zero is not
                            measurable or attainable is irrelevant to the
                            purpose of setting RMCLs which is to set a
                            health goal to prevent  adverse effects with a
                            margin of safety.
                            50 FR at 46884, 46896 (Nov. 13,1985)
                            (emphasis added).18 EPA's experience
                            and judgment is that determining that
                            contaminant levels have been reduced
                            to zero cannot be achieved in practice,
                            and none of the many public comments
                            on this issue provided evidence to the
                            contrary. ARARs must be measurable
                            and attainable since their purpose is to
                            set a standard that an actual remedy
                            will attain.
                               EPA's interpretation gives effect to
                             another important mandate in CERCLA
                             section 121. In addition to requiring EPA
                            to attain MCLGs where relevant and
                             appropriate, the statute directs EPA to
                             require levels that attain the
                             "requirements" under federal
                             environmental laws, including the
                             SDWA, where legally applicable or
                             relevant and appropriate (section
                             121(d)(2)(A)). MCLs are the legally
                             enforceable requirements under the
                             SDWA. Thus, section 121 appears to
                             require EPA to attain both MCLs and
                             MCLGs, where applicable or relevant
                             and appropriate, at CERCLA sites.
                             EPA's policy gives effect to these two
   " Similarly, the statute cites the "purpose for
 which criteria were developed" as a principal factor
 to consider in deciding whether water quality
 criteria under the CWA are "relevant and
 appropriate under the circumstances of the release."
 See CERCLA section 121(d)(2)(B)ffl.
                               18 See also 49 FR 24347 (June 12,1984) [emphasis
                             added): "Due to limitations in analytical techniques,
                             it will always be impossible to say with certainty
                             that the substance is not present. In theory, RMCLs
                             at zero will always be unachievable (or at least not
                             demonstrable). While zero could be the theoretical
                             goal for carcinogens in drinking water, in practice, a
                             goal of achieving the analytical detection limits for
                             specific carcinogens would have to be followed."
provisions by identifying the conditions
under which either the MCLG or the
MCL is the potential relevant and
appropriate requirement.
  EPA's determination that MCLGs
equal to zero are not relevant and
appropriate requirements is also
consistent with CERCLA section
121(d)(4)(C), which establishes technical
impracticability as a basis for waiving a
requirement that would otherwise be
applicable or relevant and appropriate.
This waiver provision indicates that
Congress did not intend standards to be
attained if they are impracticable to
meet under the circumstances of a
specific release. EPA  has determined
that MCLGs equal to zero are not
relevant and appropriate because
whether that level has been attained
cannot be verified under the
circumstances of any release.
  Alternatively, EPA  could have
assumed that all MCLGs (including
those of zero) are relevant and
appropriate requirements, and then used
the waiver provision in CERCLA section
121(d)(4)(C) at every site Where the issue
arises. However, this would result in
needlessly complex and prolonged
procedures, as one of the other
commenters noted.19 Moreover, EPA
believes the better approach is to
resolve this issue as a matter of
interpretation in its national rulemaking
under CERCLA.
   Other issues were raised by
commenters, such as  determining where
in the ground water MCLs should be
attained, determining which ground
waters are or may be used for drinking,
setting cleanup standards for several
chemicals in an aquifer, and determining
reasonable timeframes for ground water
cleanups. These issues are addressed
 elsewhere in today's  preamble.
   Final rule: For the reasons discussed
 above, EPA is amending
 § 300.430(e)(2)(i) (B) through (D) of the
final rule to provide as follows:
   (B) Maximum contaminant levels goals
 (MCLGs), established under the Safe
 Drinking Water Act, that are set at levels
 above zero, shall be attained by remedial
 actions for ground or surface waters that are
 current or potential sources of drinking
 water, where the MCLGs are relevant and
 appropriate under the circumstances of the
 release based on the factors in § 300.400(g)(2).
 If an MCLG is determined not to be relevant
 and appropriate, the corresponding maximum
 contaminant level (MCL) shall be attained
   19 Note, however, that the site-specific waivers in
 CERCLA section 121(d)(4) may still be appropriately
 considered under this rule in cases where a
 standard (such as an MCL or an MCLG) is identified
 as a relevant or appropriate requirement.

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             Federal Register /  Vol. 55,  No. 46  /  Thursday, March  8, 1990 / Rules  and  Regulations
                                                                           89
 where relevant and appropriate to the
 circumstances of the release.
   (C) Where the MCLG for a contaminant
 has been set at a level of zero, the MCL
 promulgated for that contaminant under the
 Safe Drinking Water Act shall be attained by
 remedial actions for ground or surface waters
 that are current or potential sources of
 drinking water, where the MCL is relevant
 and appropriate under the circumstances of
 the release based on the factors in
 § 300.400(g)(2).
   (D) In cases involving multiple
 contaminants or pathways where attainment
 of chemical-specific ARARs will result in
 cumulative risk in excess of 10~4, criteria in
 paragraph (e)(2)(i)(A) of this section may also
 be considered when determining the cleanup
 level to be attained.
   Name: Section 300.430(f)(5)(iii)(A).
 Location of point of compliance for
 ground-water cleanup standards.
   Proposed rule: Section
 300.430(e)(2)(i)(B) specified the
 standards that shall generally be
 considered relevant and appropriate
 when determining acceptable exposure
 levels for ground water or surface water
 that is a current or potential source of
 drinking water. Proposed
 § 300.430(f)(4)(iii)(A) (renumbered as
 final  § 300.430(f)(5)(iii)(A)) states that
 performance shall be measured at
 appropriate locations in the ground
 water, etc. The preamble to the
 proposed rule explained that for ground
 water, remediation levels should
 generally be attained throughout the
 contaminated plume, or at and beyond
 the edge of the waste management area
 when waste is left in place (53 FR
 51426). (The preamble also discussed
 points of compliance for other media
 (Id.]; see today's preamble to
 § 300.430(e), "Feasibility study, 1.
 Remedial action objectives and
 remediation goals," for discussion of
 these other points of compliance.)
  Response to comments: Several
 commenters essentially supported the
 proposed policy regarding point of
 compliance, but emphasized that the
 ground-water classification scheme
 should not be used to delay cleanup or
 to "write-off aquifers.
  Several other commenters opposed
 the proposal that cleanup standards,
 specifically MCLs or MCLGs, should be
 met throughout the ground water. Most
.proposed alternatively that the
 standards be met only at the tap or
 other realistic point of use, based on a
 site-specific exposure or risk
 assessment, and that higher levels be
 allowed in the ground water, especially
 immediately downgradient from a waste
 management area, to take into account
 natural attenuation. Some proposed that
 compliance should be at the facility
 property boundary, or beyond if
 exposure is precluded under CERCLA
 alternate concentration limits. One
 commenter argued that point of
 compliance is a site-specific, case-by-
 case determination that should not be
 specified in the preamble, while another
 sought the same level of flexibility for
 ground-water contamination cleanup as
 there is for contaminant source areas.
   These commenters felt that if
 compliance is not linked to actual or
 realistic future exposure, the resulting
 cleanups would be unnecessary or not
 cost-effective. They also maintained that
 using actual or likely points of exposure
 would be more appropriate to ensure
 that actual drinking water meets
 standards. Also, they argued that the
 proposed point of compliance violates
 the intent of "relevant and appropriate"
 in that it is inconsistent with and more
 stringent than the compliance point
 under SDWA itself, which is at the tap.
   EPA disagrees fundamentally with
 these commenters. MCLs, which are
 enforceable drinking water standards,
 and MCLGs above zero, are indeed
 relevant in considering cleanup levels
 for water that is or may be used for
 drinking. Although SDWA does not
 focus on general ground-water
 contamination, EPA believes that the
 MCL standards and non-zero MCLGs
 promulgated under SDWA are
 potentially relevant and appropriate to
 ground-water contamination. CERCLA
 sets out a mandate for remedies that are
 protective of use of ground water by
 private or public users. For example,
 section 104(c)(6) reflects Congress's
 expectation that ground water should be
 restored to protective levels. If ground
 water can be used for drinking water,
 CERCLA remedies should, where
 practicable, restore the ground water to
 such levels. Such restoration may be
 achieved by attaining MCLs or non-zero
 MCLGs in the ground water itself,
 excluding the area underneath any
 waste left in place. Thus, these
 standards and goals may appropriately
 be used as cleanup levels in the ground
 water as well as for the delivery of
 drinking water by public water systems.
  Furthermore, as stated in the
 preamble to the proposed rule, "EPA's
 policy is to attain ARARs  * * * so as
 to ensure protection at all points of
 potential exposure" (53 FR 51440). Under
 the approach proposed by many of these
 commenters—meeting standards only at
 the tap—most ground water would not
 be restored or remediated, since meeting
 standards through wellhead treatment
 could conceivably always be substituted
for restoration of the ground water itself.
This approach, however, would not
protect many potential future users,
particularly those with private wells,
 who may be unaware of the need to
 treat the contaminated ground water
 before using it for drinking water.
 Moreover, this approach depends
 entirely on institutional controls, which
 should not be used as the primary
 remedy when more active remediation
 measures, which provide greater
 reliability in the long term, are
 practicable.
   Using the facility property boundary
 as a point of compliance for MCLs, non-
 zero MCLGs, or alternate concentration
 limits raises similar problems. At many
 CERCLA sites, the concept of a facility
 property boundary is not meaningful
 because a facility is not in operation
 (CERCLA defines the concept in terms
 of an area where contamination has
 come to be located). Also, allowing
 higher ACLs to be set at the  boundary in
 the hope that MCLs or non-zero MCLGs
 will be achieved at a downgradient well
 through attenuation does not meet the
 statutory prerequisites for ACLs in
 CERCLA section 121(d)(2)(B)(ii), which
 requires (among other things) surface
 discharge of the ground water and
 enforceable means of protecting against
 use of the contaminated ground water.
   One commenter objected that the
 proposed policy was vague and failed to
 give criteria for determining  point of
 compliance. The commenter specifically
 cited the word "generally" in the policy
 as a source of confusion. EPA believes
 that the policy as reiterated above gives
 clear direction, considering that there
 will be situations, such as where
 waivers are needed, where cleanup
 levels cannot be attained throughout the
 plume.
   EPA believes that remediation levels
 should generally be attained throughout
 the contaminated plume, or at and
 beyond the edge of the waste
 management area, when the  waste is
 left in place. However, EPA
 acknowledges that an alternative point
 of compliance may also be protective of
 public health and the environment under
 site-specific circumstances.
  In particular, there may be certain
 circumstances where a plume of ground
 water contamination is caused by
 releases from several distinct sources
 that are in close geographical proximity.
 In such cases, the most feasible and
 effective ground-water cleanup strategy
 may be to address the problem as a
 whole, rather than source-by-source,
 and to draw the point of compliance to
 encompass the sources of release. In
 determining where to draw the point of
 compliance in such situations, the lead
 agency will consider factors such as the
proximity of the sources, the  technical
practicability of ground-water

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Federal Register / Vol. 55,  No. 46  /  Thursday,  March 8,  1990 / Rules and Regulations

                                                                  boundary, the risk assessment and other
                                                                  analysis conducted in the RI/FS
                                                                  generally should provide the information
                                                                  required for the documentation that the
                                                                  statutory criteria and other guidelines
                                                                  given above are satisfied. EPA has
                                                                  added a reference to use of ACLs as
                                                                  prescribed in CERCLA in
                                                                  § 300.430(e)(2)(i)(F).
                                                                    Final rule: EPA has added a
                                                                  § 300.430(e)(2)(i)(F) to the rule to
                                                                  reference the language in CERCLA
                                                                  section 121(d)(2)(B)(ii) on alternate
                                                                  concentration limits.

                                                                    Name: Section 300.430(e)(2). Use of
                                                                  federal water quality criteria (FWQC).
                                                                    Proposed rule: The preamble to the
                                                                  proposed rule discussed when federal
                                                                  water quality criteria are likely to be
                                                                  relevant and appropriate (53 FR 51442).
                                                                  EPA stated that a FWQC, or a
                                                                  component of a FWQC, may be relevant
                                                                  and appropriate when the FWQC is
                                                                  intended to protect the uses designated
                                                                  for the water body at the site, or when
                                                                  the exposures for which the FWQC are
                                                                  protective are likely to occur. In
                                                                  addition, whether a FWQC is relevant
                                                                  and appropriate depends on the
                                                                  availability of standards, such as an "
                                                                  MCL or state  water quality standard,
                                                                  specific for the constituent and use. In
                                                                  particular, when a promulgated MCL
                                                                  exists, an FWQC would not be relevant
                                                                  and appropriate for a current or
                                                                  potential drinking water supply.
                                                                    Response to comments: One
                                                                  commenter opposed EPA's policy on the
                                                                  relevance and appropriateness of
                                                                  federal water quality criteria (FWQC)
                                                                  for current or potential drinking water
                                                                  sources when both FWQC and MCLs
                                                                  are available for a contaminant. The
                                                                  commenter stated that the test for
                                                                  relevance and appropriateness of an
                                                                  FWQC was whether it is protective of
                                                                  humans or aquatic organisms and
                                                                  whether that kind of exposure is an
                                                                  issue at the site. The commenter
                                                                  maintained that if an FWQC is more
                                                                  stringent than an MCL, the FWQC
                                                                   should apply, consistent with the policy
                                                                  that the most stringent ARAR must be
                                                                   complied with.
                                                                     In response, FWQC are to be attained
                                                                   "where relevant and appropriate under
                                                                   the circumstances of the release or
                                                                   threatened release," as provided in
                                                                   CERCLA section 121(d)(2)(B). Final rule
                                                                   § 300.430(e)(2)(i)(E) reflects this fact.
                                                                   However, EPA believes that at many
                                                                   sites, FWQC will not be both relevant
                                                                   and appropriate in light of other
                                                                   potential ARARs.
                                                                     EPA agrees with the commenter that
                                                                   the more stringent ARAR should
                                                                   generally be  attained, especially in the
remediation at that specific site, the
vulnerability of the ground water and its
possible uses, exposure and likelihood
of exposure and similar considerations.
Additional guidance on dealing with
remote sites is provided in the preamble
section above on ground-water policy.
  Final rule: EPA is promulgating in
final § 300.430(f)(5)(iii)(A) the statement
on points of compliance ("performance
shall be measured at appropriate
locations in the ground water, * *  *")
that was in proposed
§ 300.430(f](4)(iiiHA).
  Name: Section 300.430(e)(2)(i)(F). Use
of alternate concentration limits (ACLs).
  Proposed rule: The preamble to the
proposed NCP (53 FR 51434) discussed
conditions under which alternate
concentration limits (ACLs) specified
under CERCLA may be used as cleanup
standards. The preamble explained that
CERCLA ACLs may be used if the
conditions of CERCLA section
121(d)(2)(B)(ii) are met and cleanup to
MCLs or other protective levels is not
practicable.
  Response to comments: Several
comments were made on the proposed
preamble section explaining the use of
CERCLA ACLs. Some commenters
supported the proposed use of ACLs as
is; others suggested that EPA should do
more to emphasize their utility,
particularly within a facility; and one
commenter maintained that ACLs
should not be less stringent than other
standards.
  In support of the proposal, one
commenter pointed out that use of
institutional controls and ACLs are
appropriate for the same reason, that is,
when use of treatment to attain drinking
water standards is not practicable.
Other commenters noted that ACLs
provide desirable flexibility and are
already well established under the
RCRA program.  One commenter pointed
 out that use of an ACL at a site should
 not require a new risk assessment in
 addition to that done  during the RI/FS.
   Some commenters suggested ways to
 expand the use of ACLs at CERCLA
 cleanups. One commenter wanted EPA
 to include the use of ACLs in the NCP's
 regulatory language. Another
 commenter, noting that Congress's
 concern was primarily with use of ACLs
 for exposure points outside a facility,
 suggested that ACLs could be expected
 to have great utility within the
 boundaries of a CERCLA facility;  they
 could be granted when contaminants in
 ground water will attenuate to ARAR-
 compliant levels at the leading edge of
 the plume. With this in mind the
 commenter suggested that ACLs should
 be an intrinsic consideration in the
initial step of ARARs identification. In a
similar vein another commenter
suggested that the facility boundary
should be defined to include the area
covered by institutional controls for the
purpose of the statutory criteria and for
defining the point of exposure.
  EPA disagrees generally with those
commenters who would extend the use
of CERCLA ACLs set above drinking
water standards to areas within the
facility boundary or areas covered by
institutional controls. EPA interprets the
CERCLA section on ACLs not as an
entitlement, but rather as a limitation on
the use of levels in excess of standards
that would otherwise be appropriate for
a site. Although the limitation refers
only to areas outside the facility
boundary, EPA maintains that the same
principle holds within the boundary (to
the edge of any waste management area
left at the site), namely, that such ACLs
should only be used when active
restoration of the ground water to MCLs
or non-zero MCLGs is not practicable.
Clearly, the availability of institutional
controls in itself is not sufficient reason
to extend the allowance for levels above
drinking water standards or non-zero
goals; rather, as discussed elsewhere in
the preamble, institutional controls are
considered as the sole remedy only
where active remediation is not
practicable.
  EPA also disagrees with a commenter
who asserted that ACLs cannot be less
stringent than state or tribal ARARs or
MCLGs. There is clearly no point to the
ACL described in CERCLA unless it is
above the standard normally applied to
ground water of a given class. EPA does,
however, believe that the policy
described above should mitigate the
commenter's fears that ground water
will be sacrificed.
   These comments suggest some
confusion as to when MCLs or MCLGs
need to be waived under CERCLA
 section 121(d)(4). EPA's policy is that
MCLs or MCLGs above zero should
generally be the relevant and
 appropriate requirement for ground
 water that is or may be used for
 drinking, and that a waiver is generally
 needed in situations where a relevant
 and appropriate MCL or non-zero MCLG
 cannot be attained. If, however, a
 situation fulfills the CERCLA statutory
 criteria for ACLs, including a finding
 that active restoration of the
 groundwater to MCLs or non-zero
 MCLGs is deemed not to be practicable,
 documentation of these conditions for
 the ACL is sufficient and additional
 documentation of a waiver of the MCL
 or MCLG is not necessary.
    In determining that a CERCLA ACL
 may be used outside the facility

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             Federal Register  / Vol. 55, No. 46 / Thursday, March 8,  1990 / Rules  and Regulations
                                                                          91
 case of "applicable" requirements.
 However, the determination of whether
 a requirement is relevant and
 appropriate is not based on its
 stringency; rather, other criteria are
 used, as discussed in the section on
 relevance and appropriateness, and the
 remedy must comply with the most
 stringent requirement determined to be
 ARAR. EPA also believes that, in some
 situations, the availability of certain
 requirements that more fully match the
 circumstances of the site may result in a
 decision that another requirement is not
 relevant and appropriate. EPA believes
 that one such situation is when an MCL
 or non-zero MCLG and an FWQC for
 human health are available for the same
 contaminant when a current or potential
 source of drinking water is of concern,
 and there  are no impacts to aquatic
 organisms.
  As discussed in this preamble, EPA
 believes that an MCL or non-zero MCLG
 is generally the  relevant and appropriate
 requirement for ground water that is a
 current or potential source of drinking
 water. EPA also believes that an MCL or
 non-zero MCLG, promulgated
 specifically to protect drinking water,
 generally is the  appropriate standard for
 ground water even if an FWQC for
 human health is also available for the
 contaminant, for the following reasons.
  CERCLA section 121(d)(2)(B)(i) lists,
 among other factors, the purpose for
 which the  criteria were developed and
 the designated or potential use of the
 water as factors in determining whether
 FWQC are relevant and appropriate.
 Since FWQC for human health are
 promulgated for exposures that include
 drinking water and consuming fish, on
 the one hand, and consuming fish only,
 on the other, it is not directly the
 purpose of such criteria to provide
 drinking water standards per se,
 although levels that protect such a use
 can be mathematically derived from
 these two values. Furthermore, such
 derived values for drinking water will
 not reflect the contribution of other
 sources (through an apportionment
 factor), as  MCLs and MCLGs do. Finally,
 for  carcinogens FWQC are
 recommended at zero, although values
 corresponding to risks of 10~5,10~6, and
 10"7 are also given. For the reasons
given in the discussion of MCLs and
MCLGs above, the zero value is not
 considered relevant and appropriate
under CERCLA; MCLs, however,
represent a level determined to be both
protective  of human health for drinking
water and attainable by treatment.
  For the same reasons, EPA believes
that MCLs or non-zero MCLGs generally
will be the relevant and appropriate
 standards for surface water designated
 as a drinking water supply, unless the
 state has promulgated water quality
 standards (WQS) for the water body
 that reflect the specific conditions of the
 water body. However, surface water
 bodies may be designated for uses other
 than drinking water supply, and
 therefore an FWQC intended to be
 protective of such uses, such as the
 FWQC for consumption of fish or for
 protection of aquatic life, may very well
 be relevant and appropriate in such
 cases. Also, where a contaminant does
 not have an MCL or MCLG, FWQC
 adjusted to reflect drinking water use
 may be used as relevant and
 appropriate requirements.
   Final rule: EPA is including in the
 final rule  at § 300.430(e)(2)(i)(E)
 language stating that FWQC  are to be
 attained where relevant and  appropriate
 under the circumstances of the release
 or threatened release.
   Name: Section 300.435(b)(2).
 Compliance with applicable or relevant
 and appropriate requirements (ARARs)
 during the remedial action.
   Proposed rule: CERCLA section 121
 requires that, at the completion of a
 remedial action, a level or standard of
 control required by an ARAR will be
 attained for wastes that remain on-site.
 However, consistent with the 1985 NCP
 (§ 300.68(i), § 300.435(b)) of the proposed
 NCP also required compliance with
 ARARs during implementation of the
 action, stating that during the course of
 the remedial design/remedial action
 (RD/RA), the lead agency shall be
 responsible for ensuring that  all federal
 and state ARARs identified for the
 action are being met, unless a waiver is
 invoked. Examples of such requirements
 given in the preamble to the proposed
 rule included RCRA treatment, storage,
 and disposal requirements, Clean Air
 Act national .ambient air quality
 standards, and Clean Water Act effluent
 discharge limitations (53 FR 51440).
  Response to comments: EPA received
 a number of comments that the NCP
 should not require compliance with
ARARs during the remedial action.
 Commenters argued that this policy is
inconsistent with the statute,  which
requires compliance with ARARs only
at the completion of the remedial action,
and questioned EPA's authority to
require compliance with ARARs during
remedial design/remedial action.
  Several commenters pointed out that
CERCLA section 121(d)(l) states that
remedial actions must be protective and
"must be relevant and appropriate under
the circumstances," and argued that this
standard should govern how the action
itself is carried out. Design and
 operation of the remedial action should
 be based on best professional judgment
 and undertaken in a manner that is
 protective. Other commenters suggested
 requiring compliance only with those
 ARARs that "can reasonably be
 achieved," or listing specific types of
 ARARs that must be met during RD/RA.
   Commenters were particularly
 concerned about problems created by
 requiring compliance with RCRA
 requirements and the land disposal
 restrictions in particular for remedial
 actions.
   EPA disagrees with these
 commenters. EPA believes that it is
 appropriate to require that remedial
 activities comply with the substantive
 requirements of other laws that apply or
 are relevant and appropriate to those
 activities. The reasons for complying
 with such laws during the conduct of the
 remediation are basically the same as
 the reasons for applying ARARs as
 remediation objectives: the laws help
 define how the activity can be carried
 out safely and with proper safeguards to
 protect human health and the
 environment. EPA is concerned that, if
 the narrowest possible interpretation
 were applied to ARARs compliance,
 compliance with laws critical to
 protection of health and the
 environment would become subject to
 debate, laws such as those that govern
 surface water discharges or air
 emissions, or that set operational
 standards for incineration of hazardous
 waste.
   Several commenters also stated that
 chemical-specific ARARs used as
 remediation goals, such as  MCLs as
 ARARs for ground water remediation,
 cannot be attained during
 implementation. EPA wants to clarify
 that it recognizes that ARARs that are
 used to determine final remediation
 levels apply only at the completion of
 the action.
  It is worthwhile to point out, in the
 context of this policy on complying with
 ARARs pertaining to the remedial
 activity itself, that CERCLA provides a
 waiver from ARARs for interim actions,
 provided the final action will attain the
 waived standard. If there is doubt about
 whether an ARAR represents a final
 remediation goal or an interim standard,
 and it cannot be met during the activity,
 this waiver could be invoked.
  Comments were also received on
 EPA's discussion of compliance with
 ARARs during remedial investigations
 in the preamble to the proposed NCP (53
FR 51442-43). In that discussion, EPA
 stated that on-site handling, treatment
 or disposal of investigation-derived
waste must satisfy ARARs and that the

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92	Federal  Register / Vol. 55, No. 46  / Thursday, March 8, 1990 / Rules and Regulations
field investigation teams should use best
professional judgment in determining
when such wastes contain hazardous
substances. One commenter
recommended that investigation-derived
samples be required to be handled,
treated, and disposed in accordance
with applicable RCRA requirements.
  In response, EPA wishes to clarify the
discussion in the preamble to the
proposed NCP. CERCLA section 101[23)
defines "removal" to include "such
actions as may be necessary to monitor,
assess, and evaluate the release or
threat of release of hazardous
substances  * * * [including] action
taken under section 104(b) of
[CERCLA]." EPA has stated, therefore,
that studies  and investigations
undertaken pursuant to CERCLA section
104(b), such as activities conducted
during the RI/FS, are considered
removal actions (54 FR13298, March 31,
1989]. EPA's policy, explained elsewhere
in today's preamble, is that removal
actions will comply with ARARs to the
extent practicable, considering the
exigencies of the circumstances. Thus,
the field investigation team should,
when handling, treating or disposing of
investigation-derived waste on-site,
conduct such activities in compliance
with ARARs to the extent practicable,
considering the exigencies of the
situation. Investigation-derived waste
 that is transported off-site (e.g., for
 treatability  studies or disposal) must
comply with applicable requirements of
 the CERCLA off-site policy (OSWER
Directive No. 9834.11 (November 13,
1987)) and § 300.440 when finalized (see
 53 FR 48218, November 29,1988).20 EPA
 notes that CERCLA section 104(c)(l)
 provides that the statutory limits on
 removals do not apply to investigations,
 monitoring, surveying, testing and other
 information-gathering performed under
 CERCLA section 104(b).
   Final rule: EPA is promulgating the
 rule as proposed except for minor
 editing revisions.
   Name: 300.5. Distinction between
 substantive and administrative
 requirements.
   Proposed rule: The proposed
 definitions  of "applicable" and "relevant
 and appropriate" stated that they are
 cleanup standards, standards of control,
 and other substantive environmental
 protection requirements, criteria or
 limitations. The preamble to the
 proposed rule explained that
 requirements that do not in and of
   "The CERCLA off-sita policy requires that
  receiving facilities are In compliance with
  "applicable laws." Note that many treatability study
  wastes are exempt from the permitting requirement
  under RCRA (see 40 CFR 261.4(e) and ffl).
themselves define a level or standard of
control are considered administrative
(53 FR 51443). Administrative
requirements include the approval of, or
consultation with, administrative
bodies, issuance of permits,
documentation, and reporting and
recordkeeping. Response actions under
CERCLA are required to comply with
ARARs, which are defined not to
include administrative requirements.
  Response  to comments: Many
comments were received on EPA's
differentiation between substantive and
administrative requirements. Some
commenters supported the distinction
between substantive and administrative
requirements. Other commenters
disagreed with EPA's interpretation for
various reasons.
  Several commenters argued that
Superfund actions should not be exempt
from consultation requirements. One
commenter argued that consultation
with a state may be necessary to
determine how state ARARs apply to
the remedy. A commenter contended
that it is virtually impossible to meet
substantive requirements without
consultation. One commenter asserted
that state procedures or methodology
necessary to determine permit levels
should be considered  state ARARs.
Another argued that not requiring
consultation runs opposite to the spirit
of cooperation with states. One
commenter  suggested narrowing the
exemption to allow for consultation
through existing Superfund mechanisms
such as consent orders, SMOAs, and
.cooperative agreements.
   Commenters also objected to the
exemption from reporting and
recordkeeping requirements. One
 contended that EPA had no legal
 authority for such exemption. Others
 argued that reporting  and recordkeeping
 are necessary to ensure proper control
 of hazardous substances that will
 remain on-site and are also necessary
 for activities with local impacts:  Long-
 term water diversions and air or surface
 water releases. Commenters asserted
 that the lead agency must meet reporting
 requirements to avoid gaps in a state's
 environmental data. One commenter
 noted that there are a number of federal
 and state programs that require the
 maintenance of complete databases and
 that the NCP's approach is inconsistent
 with such programs. Under these
 programs, a state needs all discharge
 information in order to evaluate surface
 water toxicity impacts in a stream or to
 establish total maximum daily loads.
   The concern was also raised that
 maintaining reporting and recordkeeping
 procedures on a site-by-site basis would
undermine a state's standardized
reporting requirements, e.g., ground-
water monitoring report forms, NPDES
forms, etc. Also, unique site approaches
to reporting and recordkeeping may
result in problems not detected by a
state. Further, these commenters stated
that they were not aware of Superfund
recordkeeping and reporting
requirements. One commenter stated
that reporting requirements and
compliance mechanisms during remedy
implementation and O&M periods
should be specified through Superfund
mechanisms, as appropriate. One
commenter contended that if Superfund
insists on this distinction, a
determination whether a requirement is
substantive or administrative must be
documented.
  EPA has reviewed  these comments,
but concludes, as stated in the preamble
to the proposed NCP  (53 FR 51443), that
CERCLA response actions should be
subject only to substantive, not
administrative, requirements. EPA
believes that this interpretation is most
consistent with the terms of CERCLA
and with the goals of the statute. Section
121(d)(2) provides that remedial actions
should require "a level or standard of
control" which attains ARARs; only
substantive standards set levels or
standards of control. Moreover,
 Congress made clear in sections 121
 (d)(2) and (d)(4) that  the "standards" or
 "requirements" of other laws that are
ARARs should be applied to actions
 conducted on-site, and specifically
 provided in section 121(e)(l) that federal
 and state permits would not be required
 for such on-site response actions. These
 subsections reflect Congress' judgment
 that CERCLA actions should not be
 delayed by time-consuming and
 duplicative administrative requirements
 such as permitting, although the
 remedies should achieve the substantive
 standards of applicable or relevant and
 appropriate laws. Indeed, CERCLA has
 its own comparable  procedures for
 remedy selection and state and
 community involvement. EPA's
 approach is wholly consistent with the
 overall goal of the Superfund program,
 to achieve expeditious cleanups, and
 reflects an understanding of the
 uniqueness of the CERCLA program,
 which directly impacts more than one
 medium (and thus overlaps with a
 number of other regulatory and statutory
 programs). Accordingly, it would be
 inappropriate to formally subject
 CERCLA response actions to the
 multitude of administrative
 requirements of other federal and state
 offices and agencies.

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             Federal Register  /  Vol. 55,  No. 46  /  Thursday, March  8, 1990 / Rules  and Regulations
                                                                           93
   At the same time, EPA recognizes the
 benefits of consultation, reporting, etc.
 To some degree, these functions are
 accomplished through the state
 involvement and public participation
 requirements in the NCP. In addition,
 EPA has already strongly recommended
 that its regional offices (and states when
 they are the lead agency) establish
 procedures, protocols or memoranda of
 understanding that, while not recreating
 the administrative and procedural
 aspects of a permit, will  ensure early
 and continuous consultation and
 coordination with other EPA programs
 and other agencies. CERCLA
 Compliance with Other Laws Manual,
 OSWER Directive No. 9234.1-01 (August
 8,1988). In working with states, EPA
 generally will coordinate and consult
 with the state Superfund office. That
 state superfund office should distribute
 to or obtain necessary information from
 other state offices interested in activities
 at Superfund sites.
  The basis for this recommendation is
 a recognition that such coordination and
 consultation is often useful to determine
 how substantive  requirements
 implemented under other EPA programs
 and by other agencies should be applied
 to a Superfund action. For example,
 although the Superfund office will make
 the final decisions on using ARARs, a
 water office may provide information
 helpful in determining ARARs when a
 surface water discharge is part of the
 Superfund remedy. Such information
 may include surface water
 classifications, existing use
 designations, technology-based
 requirements, and water quality
 standards. A water office may also be
 able to provide advice during the
 detailed analysis of alternatives on the
 effectiveness and implementability of
 treatment alternatives and the likely
 environmental fate and effects of
 surface or ground-water discharges.
 Other offices or agencies  with different
 environmental responsibilities may
 similarly provide  useful information, if it
 is given hi a timely manner.
  EPA also recognizes the importance of
 providing information to other programs
 and agencies that maintain
 environmental data bases. This is
 particularly true where the remedy
 includes releases  of substances into the
 air or water and the extent of such
releases is integral for air and water
programs to maintain accurate
information on ambient air and surface
water quality in order to set statutorily-
specified standards. Monitoring
requirements themselves are considered
substantive requirements  and are
necessary in order to document
 attainment of cleanup levels and
 compliance with emission limitations or
 discharge requirements identified as
 ARARs in the decision document. EPA
 strongly encourages its OSCs or RPMs,
 or the agency that is responsible for
 maintaining the operation and
 maintenance of an action (e.g., pump
 and treat system), to provide reports on
 monitoring activities to other offices in a
 form usable to those offices.
   In summary, cleanup standards must
 be complied with; although
 administrative .procedures such as
 consultation are not required, they
 should be observed when, for example,
 they are useful in determining the
 cleanup standards for a site. EPA
 believes that in order to ensure that
 Superfund actions proceed as rapidly as
 possible it must maintain a distinction
 between substantive and administrative
 requirements.
   Final rule: EPA is promulgating the
 reference to "substantive" in the § 300.5
 definitions of "applicable" and "relevant
 and appropriate" as proposed.
   Name: Section 300i430(f)'(i)(ii)(B).
 Consideration of newly promulgated or
 modified requirements.
   Proposed rule: The preamble to the
 proposed rule discussed how new
 requirements or other information
 developed subsequent to the initiation of
 the remedial action should be addressed
 (53 FR 51440). It explained that new
 requirements or other information
 should be considered as part of the five-
 year review (as provided for in
 § 300.430(f)(3)(v)) (renumbered as final
 § 300.430(f)(5)(iii)(C)) to ensure that the
 remedial action is still protective of
 human health and the environment. That
 is, if a requirement that would be
 applicable or relevant and appropriate
 to the remedy is promulgated after the
 initiation of remedial action, the remedy
 will be evaluated in light of the new
 requirement to ensure that the remedy is
 still protective.
  Response to comments: Several
 commenters objected to EPA's policy
 requiring consideration of new
 requirements on the grounds that the
 statute requires the five-year review
 only to determine that a remedy is still
 protective. These commenters were
 concerned  that consideration of new
 requirements would require additional
 analysis and perhaps drastic changes in
 design; would impose an open-ended
 liability on PRPs; and would violate
PRPs' right to due process. Two
 commenters suggested that making new
requirements part of a negotiation
process based on a reopener  in the
settlement agreement could alleviate the
second and third concern.
   Based on the comments and its
 experience in carrying out remedies,
 EPA is modifying its policy on
 considering newly promulgated or
 modified requirements to address those
 requirements that are promulgated or
 modified after the ROD is signed, rather
 than those requirements promulgated or
 modified after the initiation of remedial
 action, as discussed in the proposal.
 Once a ROD is signed and a remedy
 chosen, EPA will not reopen that
 decision unless the new or modified
 requirement calls into question the
 protectiveness of the selected remedy.
 EPA believes that it is necessary to
 "freeze ARARs" when the ROD is
 signed rather than at initiation of
 remedial action because continually
 changing remedies to accommodate new
 or modified requirements would, as
 several commenters noted, disrupt
 CERCLA cleanups, whether the remedy
 is in design, construction, or in remedial
 action. Each of these stages represents
 significant time and financial
 investments in a particular remedy. For
 instance, the design of the remedy
 (treatment plant, landfill, etc.) is based
 on ARARs identified at the signing of
 the ROD. If ARARs were not frozen  at
 this point, promulgation of a new or
 modified requirement could result in a
 reconsideration of the remedy and a re-
 start of the lengthy design process, even
 if protectiveness is not compromised.
 This lack of certainty could adversely
 affect the operation of the CERCLA
 program, would be inconsistent with
 Congress' mandate to expeditiously
 cleanup sites and could adversely affect
 PRP negotiations, as noted by
 commenters. The policy of freezing
 ARARs will help avoid constant
 interruption, re-evaluation, and re-
 design during implementation of
 selected remedies.
  EPA believes that this policy is
 consistent with CERCLA section
 121(d)(2)(A), which provides  that "the
 remedial action selected * * * shall
 require, at the completion of the
 remedial action," attainment of ARARs.
 EPA interprets this language  as
 requiring attainment of ARARs
 identified at remedy selection (i.e., those
 identified in the ROD), not those that
 may come into existence by the
 completion of the remedy.21 Neither the
 explicit statutory language nor the
 legislative history supports a conclusion
 that a ROD may be subject to indefinite
revision as a result of shifting
  21 No commenters objected to the position in the
preamble to the proposed rule that CERCLA
remedial actions should attain ARARs identified at
the initiation—versus completion—of the action.

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Federal Register / Vol. 55, No. 46  /  Thursday,  March 8, 1990 / Rules and Regulations
requirements. Rather, given the need to
ensure finality of remedy selection in
order to achieve expeditious cleanup of
sites, and given the length of time often
required to design, negotiate, and
implement remedial actions, EPA
believes that this is the most reasonable
interpretation of the statute.
  As EPA discusses elsewhere in this
preamble, one variation to this policy
occurs when a component of the remedy
was not identified when the ROD is
signed. In that situation, EPA will
comply with ARARs in effect when that
component is identified (e.g., during
remedial design), which could include
requirements promulgated both before
and after the ROD was signed. EPA
notes that newly promulgated or
modified requirements may directly
apply or be more relevant and
appropriate to certain locations, actions
or contaminants than existing standards
and, thus, may be potential ARARs for
future responses.
  It is important to note that a policy of
freezing ARARs at the time of the ROD
signing will not sacrifice protection of
human health and the environment,
because the remedy will be reviewed for
protectiveness every five years,
 considering new or modified
 requirements at that point, or more
 frequently, if there is reason to believe
 that the remedy is no longer protective
 of health and environment.
   In response to the specific comments
 received, EPA notes that under this
 policy, EPA does not intend  that a
 remedy must be modified solely to
 attain a newly promulgated or modified
 requirement. Rather, a remedy must be
 modified if necessary to protect human
 health and the environment; newly
 promulgated or modified requirements
 contribute to that evaluation of
 protectiveness. For example, a new
 requirement for a chemical at a site may
 indicate that the cleanup level selected
 for the chemical corresponds to a cancer
 risk of 10~a rather than 10~5, as
 originally thought. The original remedy
 would then have to be modified because
 it would result in exposures outside the
 acceptable risk range that generally
 defines what is protective.
   This policy that newly promulgated or
 modified requirements should be
 considered during protectiveness
 reviews of the remedy, but should not
 require a reopening of the ROD during
 implementation every time a new state
 or federal standard is promulgated or
 modified, was discussed in the preamble
 to the proposed rule (53 FR  at 51440) but
 not in the rule section itself. For the
 reasons outlined above, EPA believes
 that this concept is critical to the
 expeditious and cost-effective
                           accomplishment of remedies duly
                           selected under CERCLA and the NCP,
                           and thus is appropriate for inclusion in
                           § 300.430(f)(l)(ii)(B) of the final NCP.
                           This will afford both the public and
                           implementing agencies greater clarity as
                           to when and how requirements must be
                           considered during CERCLA responses,
                           and thus will allow the CERCLA
                           program to carry out selected remedies
                           with greater certainty and efficiency. Of
                           course, off-site CERCLA remedial
                           actions are subject to the  substantive
                           and procedural requirements of
                           applicable federal, state, and local laws
                           at the time of off-site treatment, storage
                           or disposal.
                              Final rule: EPA is adding the
                           following language to the rule at
                           §  300.430(f)(l)(ii)(B):
                              (B) On-site remedial actions selected in a
                           ROD must attain those ARARs that are
                           identified at the time of ROD signature or
                           provide grounds for invoking a waiver under
                           §  300.430[f)(l)[ii)CC)(3].
                              [1] Requirements that are promulgated or
                           modified after ROD signature must be
                           attained (or waived) only when determined
                           to be applicable or relevant and appropriate
                           and necessary to ensure that the remedy is
                           protective of human health and the
                           environment.
                              (2) Components of the remedy not
                            described in the ROD must attain (or waive)
                           requirements that are identified as applicable
                            or relevant and appropriate  at the time the
                            amendment to the ROD or the explanation of
                            significant differences describing the
                            component is signed.

                              Name: Applicability of RCRA
                            requirements.
                              Proposed rule: The preamble to the
                            proposed rule discussed when RCRA
                            subtitle C requirements will be
                            applicable for site cleanups (53 FR
                            51443). It described the prerequisites for
                            "applicability" at length, which are that:
                            (1) The waste must be a listed or
                            characteristic RCRA hazardous waste
                            and (2) treatment, storage or disposal
                            occurred after the effective date of the
                            RCRA requirements under consideration
                            (for example, because the activity at the
                            CERCLA site constitutes treatment,
                            storage, or disposal, as defined by
                            RCRA).
                               The preamble explained how EPA will
                            determine when a waste at a CERCLA
                            site is a listed RCRA hazardous waste.
                            It noted that it is often necessary to
                            know the origin of the waste to
                            determine whether it is a listed waste
                            and that, if such documentation is
                            lacking, the lead agency may assume it
                            is not a listed waste.
                               The preamble discussed how EPA will
                             determine that a waste is a
                             characteristic hazardous waste under
                             RCRA. It stated that EPA can test to
determine whether a waste exhibits a
characteristic or can use best
professional judgment to determine
whether testing is necessary, "applying
knowledge of the hazard characteristic
in light of the materials or process
used."
  The preamble also discussed when a
CERCLA action constitutes "land
disposal," defined as placement into a
land disposal unit under section 3004(k)
of RCRA, which triggers several
significant requirements, including
RCRA land disposal restrictions (LDRs)
and closure requirements (when a unit is
closed). It equated an area of
contamination (AOC), consisting of
continuous contamination of varying
amounts and types at a CERCLA site, to
a single RCRA land disposal unit, and
stated that movement within the unit
does not constitute placement. It also
stated that placement occurs when
waste is redeposited after treatment in a
separate unit (e.g., incinerator or tank),
or when waste is moved from one AOC
to another. Placement does not occur
when waste is consolidated within an
AOC, when it is treated in situ, or when
it is left in place.
  Response to comments: EPA received
many comments on its discussion of
when RCRA requirements can be
 applicable to CERCLA response actions.
 On the issue  of compliance with RCRA
 in general, most of these commenters
 argued that RCRA requirements are not
 intended for site cleanup actions, that
 such compliance will result in delays
 and that RCRA requirements  are often
 unnecessary to protect human health
 and the  environment at CERCLA sites.
 Other commenters argued, however,
 that EPA is trying to avoid compliance
 with RCRA requirements. Most of the
 comments, however, focused on when
 LDRs are applicable to CERCLA actions
 and on EPA's discussion of what actions
 associated with remediation trigger
 LDRs.
   Some commenters opposed EPA's
 interpretation of "land disposal" or
  "placement" as too lenient, believing
 that EPA is trying to avoid compliance
 with RCRA laws, particularly LDRs.
 These commenters argued that LDRs
  should be applicable when hazardous
  wastes  are managed, excavated, or
  moved in any way. One argued that
  ARARs waivers are available to address
  situations when the LDR levels cannot
  be achieved and should be used as
  necessary, rather than trying to
  narrowly define the universe of ARARs
  to avoid waivers. This commenter was
  also concerned with EPA's use  of the
  term "unit," calling it an inappropriate
  concept for Superfund sites because it

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             Federal Register / Vol. 55, No. 46 / Thursday. March 8, 1990  /  Rules and Regulations
                                                                          95
 will allow the excavation and
 redeposition of waste within very large
 areas without ever meeting RCRA
 design and operating standards and
 LDR. One commenter asserted that EPA
 concerns on LDRs stem from an
 unjustifiable belief that LDR cleanup
 levels cannot be achieved.
   Other commenters believed that the
 definition of "placement" should
 provide more flexibility. One asserted
 that replacement of treated residuals in
 the proximate area should not constitute
 placement. The commenter argued that
 Congress intended to address,
 preventively or prospectively, the
 original act of disposal, and that an
 innocent government or public entity
 should not be required to assume the
 entire environmental responsibility of
 the original disposers. The commenter
 also argued that establishing that
 replacement of treated waste triggers
 LDRs will be a serious disincentive to
 treating wastes. Some commenters
 argued that LDRs should not be relevant
 and appropriate where the CERCLA
 waste to be disposed on land is merely
 similar in composition to RCRA banned
 waste.
   Other commenters argued that LDRs
 are inappropriate for CERCLA remedial
 actions. They noted an inherent conflict
 between LDRs, which require treatment
 to BOAT levels, and the CERCLA
 process, and claimed that LDRs will
 supplant CERCLA's "carefully
 articulated and balanced approach to
 remedy selection." Commenters
 asserted that compliance with LDRs will
 create technical problems because of
 differences between CERCLA wastes
 and those evaluated for LDRs. The
 solutions recommended by these
 commenters primarily focused on
 narrowing or eliminating RCRA
 applicability, but included suggestions
 for creating treatability groups for
 CERCLA-type waste and seeking
 legislative waivers from LDRs, e.g., a
 waiver from LDRs for Superfund actions
 at NPL sites.
  One commenter believed that the
 concept of "unit" is not readily
 transferable to CERCLA sites due to the
 age and former uses of many of the sites
 undergoing remediation. Given the
 ramifications of LDRs, the commenter
 argued, it may be more reasonable to
 create a presumption of treating the
 entire site as one "unit," even if
remediation includes a series of
 operable  units.
  Some comments were received on
EPA's statements on consolidating
waste. One stated that consolidation of
small amounts of waste across units
should not be considered placement,
because that will lead to less
 environmentally sound and less cost-
 effective solutions, particularly if LDRs
 are triggered. Another recommended
 that EPA should allow consolidation of
 small volumes of waste anywhere on-
 site, for purposes of storage or
 treatment, without triggering otherwise
 applicable RCRA standards. Another
 commenter requested clarification that
 consolidation within a unit included
 normal earthmoving and grading
 operations.
   1. Actions constituting land disposal.
 EPA disagrees with commenters who
 considered EPA's interpretation of the
 definition of "land disposal" under
 RCRA section 3004(k) to be too narrow.
 These commenters argued that any
 movement of waste should be
 considered "placement" of waste, and
 thus "land disposal" under RCRA
 section 3004(k).
   The definition of "land disposal" is
 central to determining whether the
 RCRA LDRs are applicable to a
 hazardous  waste which is being
 managed as part of a CERCLA response
 action, or RCRA closure or corrective
 action. The term "land disposal" is
 defined under RCRA section 3004(k] as
 including, but not limited to, "any
 placement  of such hazardous waste in a
 landfill, surface impoundment, waste
 pile, injection well, land treatment
 facility, salt dome formation, salt bed
 formation,  or underground mine or
 cave." The terms "landfill", "surface
 impoundment," and the others, refer to
 specific types of units defined under
 RCRA regulations. Thus, Congress
 generally defined the scope of the LDR
 program as the placement of hazardous
 waste in a land disposal unit, as those
 units are defined under RCRA
 regulations.
  EPA has  consistently interpreted the
 phrase "placement * * * in" one of
 these land disposal units to mean the
 placem'ent'of hazardous wastes into one
 of these units, not the movement of
 waste within a unit. See e.g., 51FR 40577
 (Nov. 7,1986) and 54 FR 41566-87
 (October 10,1989)(supplemental
 proposal of possible alternative
 interpretations of "land disposal"). EPA
 believes that its interpretation that the
 "placement * *  * in" language refers to
 a transfer of waste into a unit (rather
 than simply any movement of waste) is
 not only consistent with a
 straightforward reading of section
 3004(k), but also with the Congressional
 purpose behind the LDRs. The central
 concern of Congress in establishing the
LDR program was to reduce or eliminate
 the practice of disposing of untreated
hazardous waste at RCRA hazardous
waste facilities. The primary aim of
Congress was prospective rather than
 directed at already-disposed waste
 within a land disposal unit. See 51 FR
 40577 (Nov. 7,1986). Moreover,
 interpreting section 3004(k) to require
 application of the LDRs to any
 movement of waste could be difficult to
 implement and could interfere with
 necessary operations at an operating
 RCRA facility. For instance, when
 hazardous waste is disposed of in a land
 disposal unit at an operating RCRA
 facility, there may well be some
 "movement" of the waste already in the
 unit. Under the commenters1 approach,
 such movement without pretreatment of
 the moved waste could be in violation of
 the LDRs. Thus, under the commenters'
 interpretation, virtually no operational
 activities could occur at any RCRA land
 disposal unit containing hazardous
 waste without pretreatment of any
 waste disturbed by the operation;
 clearly an infeasible approach.
   EPA also believes that this
 interpretation of section 3004(k) is
 supported by the legislative history for
 this provision (see 129 Cong. Rec. H8139
 (Oct. 6,1983)(statement of Rep. Breaux)),
 and by the Congressional choice to
 define "land disposal" more narrowly
 for purposes of application of the LDRs
 than the already-existing term
 "disposal", which has a much broader
 meaning under RCRA. Under RCRA
 section 1004(3), the term "disposal" is
 very broadly defined and includes any
 "discharge, deposit, injection, dumping,
 spilling, leaking, or placing" of waste
 into or on any land or water. Thus,
 "disposal" (in a statutory, rather than
 the regulatory subtitle C meaning of the
 term) would include virtually any
 movement of waste, whether within a
 unit or across a unit boundary. In fact,
 the RCRA definition of  "disposal" has
 been interpreted by numerous courts to
 include passive leaking, where no active
 management is involved (see, e.g., U.S.
 v. Waste Industries, Inc., 734 F.2d 159
 (4th Cir. 1984)). However, Congress did
 not use the term "disposal" as its trigger
 for the RCRA land disposal restrictions,
 but instead specifically  defined the new,
 and more narrow, term  "land disposal"
 in section 3004(k). The broader
 "disposal" language continues to be
 applicable to RCRA provisions other
 than those in subtitle C, such as section
 7003. Thus, for the reasons outlined
 above, EPA believes that the existing
 interpretation, that movement of waste
within a unit does not constitute "land
 disposal" for purposes of application of
the RCRA LDRs, is reasonable.
  With respect to the commenter who
asked whether normal earthmoving and
grading operations within a land
disposal unit constitute  "placement into

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Federal  Register / Vol. 55, No. 46  /  Thursday.  March 8. 1990 / Rules and Regulations
the unit", under EPA's interpretation of
RCRA section 3004(k), such activity
would not be "placement into the unit"
and thus the RCRA LDRs and other
subtitle C disposal requirements would
not be applicable (nor would the
requirement to obtain a permit under
RCRA or minimum technology
requirements in RCRA section 3004(o)
apply).
  Given this interpretation of section
3004(k), EPA does not believe that it is
necessary to invoke ARAR waivers of
LDRs for any movement of waste within
a unit, which was the alternative
suggested by the commenters. Nor does
EPA believe that the widespread use of
such waivers would be practical or
desirable. 54 FR 41568-69 (October 10,
1989).
  EPA also does not fully agree with the
commenters who argued that the RCRA
concept of "unit" does not apply to
CERCIA sites. The commenters who
criticized the application of the RCRA
"unit" to the CERCLA area of
contamination for purposes of section
3004{k) believed it to be either  too
broad, allowing large areas to escape
the LDRs, or too narrow, not allowing
entire CERCLA sites to be considered a
single "unit". In contrast to hazardous
waste management units at a RCRA
facility, CERCLA sites often do not
involve discrete waste management
units, but rather involve land areas on
 or in which there can be widespread
 areas of generally dispersed
 contamination. Thus, determining the
 boundaries of the RCRA land disposal
 "unit," for which section 3004(k) would
 require application of the LDRs at these
 sites, is not always self-evident.
   EPA generally equates the CERCLA
 area of contamination with a single
 RCRA land-based unit, usually a
 landfill. 54 FR 41444 (December 21,
 1988). The reason for this is that the
 RCRA regulatory definition of "landfill"
 is generally defined to mean a land
 disposal unit which does not meet the
 definition of any other land disposal
 unit, and thus is a general "catchall"
 regulatory definition for land disposal
 units. As a result, a RCRA "landfill"
 could include a non-discrete land area
 on or in which there is generally
 dispersed contamination. Thus, EPA
 believes that it is appropriate  generally
 to consider CERCLA areas of
 contamination as a single RCRA land-
 based unit, or "landfill". However, since
 the definition of "landfill" would not
 include discrete, widely separated areas
 of contamination, the RCRA "unit"
 would not always encompass an entire
 CERCLA site.
   Waste consolidation from different
 units or AOCs at a CERCLA site are
                           subject to any applicable RCRA
                           requirements regardless of the volume of
                           the waste or the purpose of the
                           consolidation. Thus, EPA disagrees with
                           those commenters that asserted that
                           small volumes of hazardous waste at a
                           CERCLA site can be consolidated
                           anywhere on-site for storage or
                           treatment purposes without
                           consideration of any applicable RCRA
                           requirements. Such requirements may,
                           however, be subject to ARAR waivers in
                           appropriate circumstances.
                             The remaining comments received
                           with respect to EPA's interpretation of
                           section 3004(k) discussed the
                           achievability of LDR cleanup levels,
                           questioned the appropriateness of
                           applying the LDRs to remedial actions,
                           and requested more flexibility regarding
                           the LDRs. These comments were the
                           basis for EPA's supplemental notice and
                           proposed reinterpretation of section
                           3004(k), which is discussed below.
                              In light of the numerous comments
                           received on the interpretation of "land
                           disposal" in RCRA section  3004(k), as it
                           relates to removal, treatment, and
                           redeposition of hazardous wastes
                           generated by CERCLA and RCRA
                           remedial and other activities, and in
                           view of the important policy decisions
                           that RCRA LDRs pose for the CERCLA
                            and RCRA programs, EPA decided to
                            separately and more fully discuss the
                            issue, the interpretation outlined in the
                            proposed NCP, and possible alternative
                            interpretations of "land disposal". In a
                            supplemental notice to the  proposed
                            NCP (54 FR 41566 (Oct. 10,1989)), EPA
                            outlined several technical,  policy, and
                            legal issues concerning LDR
                            applicability to removal, treatment, and
                            redeposition of hazardous wastes, and
                            requested comment on two alternative
                            interpretations of "land disposal". The
                            first alternative would allow the
                            excavation and replacement of
                            previously disposed hazardous wastes
                            in the same unit or area of
                            contamination; since the same wastes
                            would remain in the same unit, this
                            activity would not constitute "land
                            disposal". Under the second alternative,
                            hazardous wastes could be excavated
                            and redeposited either within the
                            original unit or area of contamination, or
                            elsewhere at the site in a new or
                            existing unit. These interpretations
                            would allow greater flexibility in
                            remedial decision-making, in the context
                            of both CERCLA actions and RCRA
                            corrective actions and closures.
                               On November 6 and 7,1989, EPA held
                            a forum on contaminated soil and
                            groundwater ("Contaminated Media
                            Forum") to provide an opportunity for
                            interested groups to further address
                             these issues. The Contaminated Media
Forum was attended by representatives
from EPA, states, environmental groups,
Congress, and the regulated community.
A summary of the concerns raised and
suggested solutions appears in the
public docket for this rulemaking.
  2. Selection of LDR treatment
standards. Upon further examination,
EPA believes that many of the problems
discussed in the supplemental notice,
and raised by commenters, result from
treatment standards developed pursuant
to the RCRA LDR program that are
generally inappropriate or infeasible
when applied to contaminated soil and
debris. As discussed in the October 1989
notice, EPA's experience under CERCLA
has been that treatment of large
quantities of soil and debris containing
relatively low levels of contamination
using LDR "best demonstrated available
technology" (BOAT) is often
inappropriate. 54 FR 41567, 41568
(October 10,1989). EPA noted that:
  Experience with the CERCLA program has
shown that many sites will have large
quantities—in some cases, many thousands
of cubic meters—of soils that are
contaminated with relatively low
concentrations of hazardous wastes. These
soils often should be treated, but treatment
with the types of technologies that would
meet the standard of BOAT may yield little if
 any environmental benefit over other
 treatment based remedial options.

 54 FR 41568 (October 10,1989).
 Examples of these and other situations
 reflecting EPA's experience concerning
 the inappropriateness of incinerating
 contaminated soil and debris are
 included in the record for this rule. In
 addition, as discussed below, EPA has
 experienced problems in achieving the
 current noncombustion LDRs for
 contaminated soil and debris. Based on
 EPA's experience to date and the'
 virtually unanimous comments
 supporting  this conclusion, EPA has
 determined that, until specific standards
 for soils and debris are developed,
 current BOAT standards are generally
 inappropriate or unachievable for soil
 and debris  from CERCLA response
 actions  and RCRA corrective actions
 and closures. Instead, EPA presumes
 that, because contaminated soil and
 debris is significantly different from the
 wastes  evaluated in establishing the
 BOAT standards, it cannot be treated in
  accordance with those standards and
  thus qualifies for a treatability variance
  from those standards under 40 CFR
  268.44.
   Accordingly, persons seeking a
  treatability variance from LDR
  treatment standards for contaminated
  soil and debris do not need to
  demonstrate on a case-by-case basis

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             Federal Register / Vol. 55, No. 46 /  Thursday,  March 8, 1990  / Rules and Regulations
                                                                           97
 that BDAT standards for prohibited
 hazardous wastes are inappropriate or
 not achievable. As an alternative,
 persons seeking a treatability variance
 for soil and debris may meet the
 appropriate levels or percentage
 reductions in the currently available
 guidance {Superfund LDR Guidance
 #6A, "Obtaining a Soil and Debris
 Treatability Variance for Remedial
 Actions", EPA OSWER Directive 9347.3-
 06FS, July 1989). In the context of
 Superfund Records of Decision (ROD),
 this means that EPA will generally
 include such a variance in the proposed
 plan and ROD when treatment of
 contaminated soil and debris is an
 element of the remedial action. Further,
 EPA intends to issue guidance
 supplementing the Superfund Guidance
 #6A to expedite the processing of such
 treatability variances in conjunction
 with established remedy selection
 procedures.
   Treatment standards for prohibited
 hazardous wastes are based on
 performance achievable by application
 of BDAT. 51 FR at 40578 (Nov. 7,1986).
 BDAT, however, is not a technology-
 forcing program, nor does it always
 require the lowest possible levels of
 waste treatment achievable with any
 technology. See 130 Cong. Rec. S9178
 (July 25,1984) (Statement of Sen.
 Chaffee introducing the  amendment that
 became RCRA section 3004(m)). Rather,
 what Congress contemplated is a
 scheme whereby hazardous wastes are
 to be treated using the technology (or
 technologies) generally considered to be
 suitable for the waste and that
 substantially diminish the toxicity of the
 waste or substantially reduce the
 likelihood of migration. Id.; see also H.
 Rep. No. 198, 98th Cong. 1st Sess. 33; S.
 Rep. No. 284, 98th Cong. 1st Sess. 16-17.
  EPA's rules  developing treatment
 standards likewise recognize that the
 treatment standards be based on
 appropriate technologies even if more
 stringent treatment methods are
 technically feasible. 51 FR at 40588-592
 (Nov. 7,1986). For example, EPA has
 generally based treatment standards for
 organic contaminants in wastewaters
 (normally defined as aqueous materials
 containing less than 1% total organic
 compound (TOG) and total suspended
 solids (TSS)) on technologies other than
 incineration (or other combustion), even
 though such organics could be treated to
 lower levels if the wastewaters were
incinerated. This is because incineration
 (or other combustion) is not normally an
 appropriate technology for wastewaters,
notwithstanding its capability of
performing to lower levels than
conventional wastewater treatment.
 More generally, EPA's rules on
 treatability variances recognize that
 prohibited wastes be treated by
 appropriate technologies. The rules thus
 state that a petitioner may request a
 treatability variance "where the
 treatment technology is not appropriate
 to the waste". 40 CFR 268.44(a).
   Similarly, treatability variances are
 warranted where the applicable
 numerical treatment standard for the
 waste cannot be achieved. 40 CFR
 268.44(a). For this reason, EPA has found
 that current BDAT standards based on
 noncombustion technology also warrant
 a treatability variance for soil and
 debris. The complex matrices often
 present in soil and debris may reduce
 the effectiveness of stabilization and
 other noncombustion technologies in
 treating these wastes. For example, the
 presence of oil and grease or sulfites in
 the mixture may substantially interfere
 with the stabilization process. More
 generally,  stabilization is a complex
 treatment process and its application to
 unique soil and debris mixtures is not
 yet well understood. EPA's development
 of alternative treatment levels in the
 Superfund Guidance #6A noted above
 was based on available data for soil and
 debris mixtures and  thus is more
 tailored with respect to achievability
 than the existing BDAT standards for
 these waste mixtures. The difference
 between these levels and the existing
 BDAT standards for  these wastes
 demonstrates the feasibility of achieving
 the current BDAT standards for soil and
 debris. These alternative numbers thus
 support EPA's presumption that the
 BDAT standards are generally
 inappropriate or not achievable for soil
 and debris.
   This presumption is supported by the
 commenters on the December, 1988 and
 October, 1989 proposals. EPA received
 numerous comments  from a wide range
 of commenters discussing the
 inappropriateness or infeasibility of
 applying BDAT standards to
 contaminated soil and debris. The
 principal reason given for the
 inappropriateness of the current BDAT
 standards was the complexity of soil
 and debris mixtures and the interference
 with treatability caused by unique
 matrices of contaminants in the soil and
 debris. Moreover, commenters noted
 that wastestream-derived BDATs have
not been fully demonstrated for many
 contaminated soils and debris and that
 the presence of trace  quantities of one
waste in soil and debris may
inappropriately require use of a
treatment method that would not
otherwise be applicable to the other
wastes present. These comments were
  further supported by comments made at
  the Contaminated Media Forum.
   The Agency's experience also
  supports this conclusion of general
  inappropriateness or infeasibility of
  current BDAT standards for soil and
  debris. For example, as indicated above,
  EPA has developed alternative
  treatment levels for soil and debris in
  the Superfund #6A guidance which are
  based on the application of the specific
  treatment technologies to soil and
  debris, rather than industrial process
  wastes. Thus, these alternative levels,
  which are better tailored to the
  treatability of the  complex soil and
  debris mixtures found at Superfund
  sites, reflect Agency experience
  concerning the inappropriateness or
  infeasibility of current BDAT for soil
  and debris.
   EPA has long indicated its intention to
 develop separate treatment standards
 for contaminated soil and debris
 (without regard, incidentally, to the
 origin of such waste, so that the
 treatment standards would apply
 whether the soil and debris is generated
 from a CERCLA action or some other
 activity). 51 FR 40577 (Nov. 7,1986).
 Although the Agency has already
 expended considerable effort on such
 standards, it has not been able to
 propose or promulgate regulations
 because of the more pressing need to
 implement the rest of the land disposal
 prohibition statutory provisions before
 the various statutory deadlines. See
 RCRA sections 3004 (d), (e),  and (g). EPA
 does not expect that the same level of
 treatment performance will be required
 for soil and debris  as for industrial
 process wastes.
   In the interim period until EPA
 promulgates these  treatment standards,
 contaminated soil and debris are subject
 to the same treatment standards as-the
 prohibited hazardous wastes that they
 contain, unless a variance is appropriate
 and is approved according to 40 CFR
 268.44. 53 FR at 31146-149 (Aug. 17,1988)
 and Chemical Waste Management v.
 EPA, 869 F.2d 1526,1535-16,1538-40
 (D.C. Cir. 1989). Where standards for the
 underlying waste are based on the
 performance of incineration, EPA has
 granted national capacity variances for
 the contaminated soils and debris
 because there is insufficient national
 capacity to treat these wastes. 40 CFR
 268.30(c), 268.31(a)(l), 268.32(d)(l),
 268.33(b), and 268.34(d). Where BDAT
 treatment standards are in effect, it is
possible to petition for a treatability
variance based on the inappropriateness
 of the BDAT standards to treat the
contaminated soil and debris. 40 CFR
268.44(a). As discussed earlier, EPA

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Federal Register / Vol. 55,  No. 46 / Thursday. March 8, 1990 /  Rules and Regulations
believes that it is unnecessary for
petitioners (or the lead Agency in
CERCLA response actions) to make site-
specific demonstrations that BDAT
standards are inappropriate for
contaminated soil and debris. The
numerous comments and Agency
experience supporting a presumption
that the BDAT standards are
inappropriate or not achievable is
clearly warranted at this time because
the criteria in 40 CFR 268.44 for
trcatability variances are generally met
for soil and debris. As a result, under
EPA's established treatability variance
procedures (40 CFR 268.44), variance
applications for contaminated soil and
debris do not need to demonstrate that
the physical and chemical properties
differ significantly from wastes
analyzed in developing the treatment
standard and that, therefore, the waste
cannot be treated to specified levels or
by specified methods. Petitions need
 only focus on justifying the proposed
 alternative levels of performance, using
 existing interim guidance containing
 suggested treatment levels for soil and
 debris (Superfund LDR Guidance #6A,
 "Obtaining a Soil and Debris
 Treatability Variance for Remedial
 Actions", EPA OSWER Directive 9347.3-
 06FS, July 1989) as a benchmark.
   Although  the presumption is that
 BDAT standards are not appropriate for
 soil and debris, there may be special
 circumstances where EPA determines
 that the existing BDAT standards are
 appropriate for contaminated soils and
 debris at a particular site, such as where
 high levels of combustible organics in
 soil are present. In these circumstances,
 the Agency would make a determination
 that treatment to the BDAT standards
 was appropriate and would require such
  treatment.
    EPA regulations provide that
  treatability variances may be issued on
  a site-specific basis. 40 CFR 268.44(h).22
    «In light of today's determination, the
  application of this rule requires clarification in two
  respects. First, although EPA is today establishing a
  general presumption that BDAT standards are
  Inappropriate or not achievable for treating soil and
  debris, the Agency does not believe that this
  presumption triggers the rulemaking variance
  procedures In 40 CFR 208.44(a). Even with the
  presumption, treatment levels will be determined on
  a case-by-casc basis, and commenters may submit
  information contending that the presumption is not
  applicable In a particular case. Thus, it is EPA's
  view that the site-specific, non-rulemaking
  procedures in 40 CFR 268.44(h) are entirely
  appropriate. See 53 FR 31199-31200 (August 17,
  1903).
    Second, EPA does not interpret its site specific
  variance procedures as invariably requiring
  applicants to demonstrate that they cannot meet
  applicable treatment levels or methods. The first
  sentence of 40 CFR 268.44(h) makes it clear that an
  applicant may make one of two demonstrations to
  qualify for a variance: he may show either that he
                            Thus, they may be approved
                            simultaneously with the issuance of a
                            RCRA permit, the approval of a RCRA
                            closure plan, or the selection of a
                            remedy in a CERCLA response action in
                            the ROD. In the case of an on-site
                            CERCLA response action, the
                            procedural requirements of the variance
                            process do not apply. See CERCLA
                            sections  121(e)(l) and 121(d)(2). The
                            variance decision will be made as part
                            of EPA's remedy selection process,
                            during which data justifying alternative
                            treatment levels will be included in the
                            administrative record files, and public
                            participation opportunities and Agency
                            response to comment will be afforded as
                            appropriate under this rule.
                               In EPA's view, the Agency's
                            determination that the BDAT standards
                            are generally inappropriate for
                            contaminated soil and debris addresses
                            many of the practical concerns raised by
                             commenters in the supplemental notice
                             on the Agency's interpretation of the
                             term "land disposal". For this reason,
                             and because EPA has had  insufficient
                             time to review and evaluate  the many
                             lengthy  and complex issues raised by
                             commenters on the supplemental notice,
                             EPA is deferring any final  decision to
                             modify  that interpretation. [EPA will
                             respond to comments on the alternatives
                             in the supplemental notice when the
                             Agency makes a final decision on the
                             proposed reinterpretation of land
                             disposal.) Until a final decision is made,
                             the interpretation announced in the
                             preamble to the proposed NCP and
                             discussed in section 1 above will remain
                             in effect.
                                Final rule: There is no rule language
                             on this  issue.
                                Name: Determination of whether a
                             waste is a hazardous waste.
                                Proposed rule: The preamble to the
                             proposed rule discussed how to
                              determine whether hazardous waste
                             regulated under RCRA Subtitle C was
                              present at a site (53 FR 51444).
                                Response to comments: Some
                              commenters raised questions  about
                              EPA's  discussion about determining
                              whether a waste exhibits a hazardous
                              characteristic. One argued that EPA
                              cannot assume a waste is not a
                              characteristic waste in the absence of
                              testing and should therefore adopt a
                              liberal and inclusive approach to
                              cannot meet a treatment standard, or that a
                              treatment method [or the method underlying the
                              standard is inappropriate for his waste. The final
                              sentence of § 268.44(h), identifying the showing an
                              applicant must include in his variance application,
                              on its terms applies only to applications submitted
                              under the first criterion. EPA's presumption,
                              however, applies to soil and debris regardless of
                              which of the two types of variances apply.
determining whether RCRA applies to
avoid expensive and time-consuming
testing. Another commenter asked for
clarification on who was responsible for
applying "process knowledge" to
determine whether a waste was a
hazardous waste in the absence of
testing. The commenter asserted that,
under RCRA, EPA exercises
prosecutorial discretion if a generator,
acting in good faith, decides incorrectly
that his waste is not hazardous. EPA
notes that when it determines that there
is a violation there will normally be
some kind of enforcement action taken;
the level and type of prosecutorial
response will depend on a number of
factors, for example, the size of the
company, the significance of the
violation, the intent, etc.
   Under RCRA rules, a generator is not
required to test, but may use knowledge
of the waste and its constituents to
judge whether the waste exhibits a
characteristic. (See 40 CFR 262.11(c).)
EPA believes this should also apply if
 the lead agency or PRP at a CERCLA
 site is the "generator." EPA wants to
 make clear, however, that a decision
 that a waste is not characteristic in the
 absence of testing may not be arbitrary,
 but must be based on site-specific
 information and data collected on the
 constituents and their concentrations
 during investigations of the site. Based
 on site data, it will be very clear in some
 cases that a waste cannot be
 characteristic; for examplg, if a waste
 does not contain a constituent regulated
 as EP toxic, a decision that the waste
 does not exhibit this characteristic can
 reliably be made without testing for EP
 toxicity. EPA does not expect to
 undertake testing when it can otherwise
 be determined with reasonable certainty
 whether or not the waste will exhibit a
 characteristic.
    In response to the second concern, the
  determination whether a waste is a
 hazardous waste may be made by EPA,
  the state, or a PRP, depending on the
  nature of the  action. EPA will take any
  necessary or  appropriate action if
  decisions about the hazardous nature of
  the waste are in error or are made
  without proper basis.
    Several commenters discussed the
  question of whether RCRA requirements
  can be applicable to RCRA hazardous
  waste disposed of before the RCRA
  requirements went into effect in 1980.
  One commenter argued that they could
  not be, unless the waste exhibited a
  characteristic at the time of the CERCLA
  action. However, as one commenter
  noted, EPA has consistently maintained
  in enforcement actions that RCRA
  requirements apply to any waste

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            Eedeial Register / Vol.  55, No. 46 / Thursday, March  8. 1990  /Rules and Regulations
materials disposed of prior to 1980 when
those materials are managed or
disposed of today. EPA agrees with this
latter comment and believes that this
policy applies to CERCLA actions as
well. This was also upheld in a recent
DC Court of Appeals decision, Chemical
Waste Management v. EPA,  869 F.2d
1526 (DC Cir. 1989). RCRA requirements
can apply when the CERCLA action
constitutes treatment, storage or
disposal of RCRA hazardous waste.
Note that RCRA requirements may also
be relevant and appropriate  to pre-1980
waste.
  One commenter suggested that EPA
allow consolidation, for purposes of
storage or treatment, of small volumes
of wastes without triggering  RCRA
standards. In response, while EPA
appreciates the concerns with meeting
substantive storage and treatment
requirements for small amounts of
waste, EPA believes that waste should
be managed according to standards
when those standards are ARARs
unless a waiver (such as for  interim
measures) can be justified. It should be
noted that RCRA may not be applicable
for small quantity generators, as defined
under RCRA; however, a determination
would still have to be made about
whether any RCRA requirements would
be relevant and appropriate  to small
quantities.
  Final rule: There is no rule language
on this issue.
  Name: When RCRA requirements are
relevant and appropriate to CERCLA
actions.
  Proposed rule: The preamble to
proposed § 300.400(g)(2)(i), identification
of applicable or relevant and
appropriate requirements, criteria for
relevant and appropriate, stated that
RCRA requirements may be  relevant
and appropriate when a waste is similar
in composition to a RCRA listed waste
(53 FR 51446).
  Response to comments: 1. RCRA
requirements as relevant and
appropriate for wastes similar to RCRA
hazardous waste. Several commenters
expressed concern that RCRA
requirements may be potentially
relevant and appropriate for waste that
is not a RCRA hazardous waste, but is
similar to a RCRA hazardous waste.
Commenters argued that virtually any
waste or CERCLA substance is similar
to a RCRA hazardous waste in some
way, either in chemical composition, in
toxicity, in mobility, or in persistence,
and were concerned that this policy
represented an enormous expansion of
the RCRA program.
  EPA believes that RCRA requirements
can potentially be relevant and
appropriate to wastes other than those
that are known to be hazardous waste.
For example, some information or
records must be available that identify
the source of the waste in order to
determine that the waste is a listed
hazardous waste. As a result, two
separate wastes could be identical in
composition, but only one identified as a
RCRA hazardous waste because
manifests are available that identify it
as a listed waste. RCRA requirements
would be applicable for the manifested
waste, but not for the other, even though
the two wastes are physically the same.
EPA believes that RCRA requirements
can be potentially relevant and
appropriate when the waste cannot be
definitively identified as a listed
hazardous waste.
  EPA wants to emphasize, however,
that a number of the factors identified in
§ 300.400(g)(2) should be considered in
determining whether a RCRA
requirement is relevant and appropriate.
The similarity of the waste to RCRA
hazardous waste or the presence of a
RCRA constituent alone does not create
a presumption that a RCRA requirement
will be relevant and appropriate. Nor is
it always necessary or useful to conduct
an in-depth, constituent-by-constituent
comparison of a CERCLA waste with
RCRA hazardous wastes, because most
RCRA requirements are the same
regardless of the specific composition of
the hazardous waste. Indeed, the statute
requires attainment of those
requirements that are relevant and
appropriate under the circumstances of
the release. Thus, the decision about
whether a RCRA requirement is relevant
and appropriate is based on
consideration of a variety of factors,
including the nature of the waste and its
hazardous properties, other site
characteristics, and the nature of the
requirement itself.
  EPA anticipates that it will often find
some RCRA requirements to be  relevant
and appropriate at a site and others not,
even for the same waste. This is
because certain waste characteristics
shared with RCRA hazardous wastes
may be more important than others
when  evaluating whether a given
requirement is relevant and appropriate.
For example, the mobility of the waste,
among other factors, may be a key
concern in evaluating whether the
RCRA requirement that the cap  used in
closing a landfill be less permeable than
the bottom liner (40 CFR 264.310(a)(5)) is
relevant and appropriate. Other
properties of the waste might be more
important in evaluating the relevance
and appropriateness of other RCRA
requirements.
  2. RCRA requirements as relevant and
appropriate for mining wastes. Several
commenters asked EPA to state in the
NCP or its preamble that RCRA subtitle
C requirements will not be relevant and
appropriate to mining wastes. They
noted that, recognizing the unique
characteristics of mining wastes,
Congress exempted certain mining
wastes from regulation as hazardous
wastes under RCRA until EPA
completed studies on these wastes to
determine specifically whether such
regulation was appropriate. On July 3,
1986, EPA published its determination
for beneficiation and extraction wastes
which found that regulation under
subtitle C was not warranted for these
wastes, because EPA believes such
requirements, "  * * * if universally
applied, would be either unnecessary to
protect human health  and the
environment, technically infeasible, or
economically impracticable to
implement." (51 FR 24496.) The
commenters argue, therefore, that
subtitle C requirements, which are not
legally applicable to these mining
wastes, also cannot be relevant and
appropriate, since EPA has formally
made the determination that these
requirements are not appropriate for
such wastes.
  The commenters emphasized that
mining waste sites differ in a number of
ways from industrial wastes sites. They
argue that mining wastes are of
enormous volume and generally of lower
toxicity, that the sites typically cover
extremely large  areas and may present
less hazard because they tend to be in
drier climates, reducing leaching
potential, or contain constituents that
are less mobile.  For these reasons,
which formed the basis of EPA's
decision under RCRA, RCRA
requirements would not be relevant and
appropriate for mining sites remediated
under CERCLA. Commenters requested
that EPA give guidance specifically in
the NCP to ensure consistent decisions
on ARARs at mining sites.
  EPA agrees that RCRA requirements
for hazardous waste will not be
applicable to those mining wastes
excluded from regulation by the statute.
(Note, however, that EPA has recently
removed certain mineral processing
wastes from the mining waste exclusion,
making them subject to subtitle C, 54 FR
36592, September 1,1989; 55 FR 2322,
January 23,1990. EPA has also
promulgated regulations listing certain
wastes from mineral processing
operations as hazardous, 53 FR 35412,
September 13,1988.) In addition, EPA
agrees that RCRA subtitle  C
requirements will generally not be

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100        Federal Register /  Vol. 55,  No. 46  /  Thursday, March  8, 1990 / Rules  and Regulations
relevant and appropriate for those
mining wastes for which EPA has
specifically determined that such
regulation is not warranted. The reason
is that the factors that caused EPA not
to regulate these wastes as hazardous
include many of the same factors that
EPA considers in judging whether a
requirement is relevant and appropriate
at a particular site.
  However, EPA does not agree that
RCRA requirements for hazardous
waste can never be relevant and
appropriate for CERCLA remediation of
mining sites. In its determination for
beneficiation and extraction wastes,
EPA found that, "if universally applied,"
subtitle C requirements would not be
appropriate for mining wastes. [51FR
24500.) However, a decision about
whether a requirement is relevant and
appropriate is made on a case-by-case
basis, based on the specific
characteristics of the site and the
release. There may be some sites where
the site circumstances differ
significantly from those which caused
EPA to decide that subtitle C regulation
is not warranted and where certain
requirements are appropriate and well-
suited to the site or portions of the site.
In such a situation, some RCRA
requirements may be relevant and
appropriate.
  EPA is developing regulations under
subtitle D of RCRA designed specifically
for mining wastes that will not be
regulated as hazardous waste. When
promulgated, these regulations are likely
to be either applicable or relevant and
appropriate for remediation of mining
sites.
  Another commenter stated that EPA
needs to develop a long-term initiative
to simplify the use of RCRA ARARs.
EPA recognizes that the interaction
between the two laws can be very
complicated and continues to work to
resolve and give guidance on issues
involving CERCLA compliance with
RCRA laws.
  Final rule: There is no rule language
on this issue,
  Name: Examples of potential federal
and state ARARs and TBCs.
  Potential ARARs and TBCs include,
but are not limited to, the following:
  1. Federal requirements which may be
potential applicable or relevant and
appropriate requirements, i. EPA's
Office of Solid Waste administers, niter
alia, the Resource Conservation and
Recovery Act of 1976, as amended, (42
U.S.C. 6S01). Potentially applicable or
relevant and appropriate requirements
pursuant to that Act are:
  a. Open Dump Criteria—Pursuant to
RCRA subtitle D criteria for
classification of solid waste disposal
facilities (40 CFR part 257).
  Note: Only relevant to nonhazardous
wastes.
  b. RCRA subtitle C requirements
governing standards for owners and
operators  of hazardous waste treatment,
storage, and disposal facilities: (40 CFR
part 264, for permitted facilities, and 40
CFR part 265, for interim status
facilities):
  (1) Ground-Water Protection and
Monitoring (40 CFR 264.90-264.109).
  (2) Closure and Post Closure (40 CFR
264.110-264.120).
  (3) Containers (40 CFR 264.170-
264.178).
  (4) Tanks (40 CFR 264.190-264.199).
  (5) Surface Impoundments (40 CFR
264.220-264.249).
  (6) Waste Piles (40  CFR 264.250-
264.269).
  (7) Land Treatment (40 CFR 264.270-
264.299).
  (8) Landfills (40 CFR 264.300-264.339).
  (9) Incinerators (40 CFR 264.340-
264.999).
  (10) Land Disposal Restrictions (40
CFR 268.1-268.50).
  (11) Dioxin-containing wastes (50 FR
1978).
  (12) Standards of performance for
storage vessels for petroleum liquids (40
CFR part 60, subparts K and K(a)).
  (13) Codification rule for 1984 RCRA
amendments (50 FR 28702, July 15,1985;
52 FR 45788, December 1,1987).
  ii. EPA's Office of Water administers
several potentially applicable or
relevant and appropriate statutes and
regulations issued thereunder:
  a. Section 14.2 of the Public Health
Service Act as amended by the Safe
Drinking Water Act, as amended, (42
U.S.C. 300(f)).
  (1) Maximum Contaminant Levels (for
all sources of drinking water exposure).
(40 CFR 141.11-141.16).
  (2) Maximum Contaminant Level
Goals (40  CFR 141.50-141.52, 50 FR
46936).
  (3) Underground Injection Control
Regulations (40 CFR parts 144,145,146,
147).
  b. Clean Water Act, as amended, (33
U.S.C. 1251).
  (1) Requirements established pursuant
to sections 301, 302, 303 (including state
water quality standards), 304, 306, 307,
(including federal pretreatment
requirements for discharge into a
publicly owned treatment works), 308,
402, 403 and 404 of the Clean Water Act.
(33 CFR parts 320-330, 40 CFR parts 122,
123,125,131, 230, 231, 233, 400-469).
  (2) Available federal water quality
criteria documents are listed at 45 FR
79318, November 28,1980; 49 FR 5831,
February 15,1984; 50 FR 30784, July 29,
1985; 51 FR 8012, March 7,1986; 51 FR
22978, June 28,1986; 51 FR 43665,
December 3,1986; 52 FR 6213, March 2,
1987; 53 FR 177, January 5,1988; 53 FR
19028, May 26,1988; 53 FR 33177, August
30,1988; 54 FR 19227, May 4,1989.
  (3) Clean Water Act section 404(b)(l)
Guidelines for Specification of Disposal
Sites for Dredged or Fill Material  (40
CFR part 230).
  (4) Procedures for Denial or
Restriction of Disposal Sites for Dredged
Material (Clean Water Act section
404(c) Procedures, 33 CFR parts 320-330,
40 CFR part 231).
  c. Marine Protection, Research, and
Sanctuaries Act (33 U.S.C. 1401). (1)
Incineration at sea requirements (40
CFR parts 220-225, 227-229. See also 40
CFR 125.120-125.124).
  iii. EPA's Office of Pesticides and
Toxic Substances administers the Toxic
Substances Control Act (15 U.S.C. 2601).
Potentially applicable or relevant and
appropriate requirements pursuant to
that Act are:
  PCB requirements generally: 40 CFR part
761; Manufacturing, Processing, Distribution
in Commerce, and Use of PCBs and PCB
Items (40 CFR 761.20-761.30); Markings of
PCBs and PCB Items (40 CFR 761.40-761.45);
Storage and Disposal (40 CFR 761.60-761.79);
Records and Reports (40 CFR 761.180-761.18S,
761.187 and 761.193). See also 40 CFR 129.105,
750.
  iv. EPA's Office of External Affairs
administers potentially applicable or
relevant and appropriate requirements
regarding requirements for floodplains
and wetlands (40 CFR part 6, Appendix
A).
  v. EPA's Office of Air and Radiation
administers several potentially
applicable or relevant and appropriate
statutes and regulations issued
thereunder:
  a. The Uranium Mill Tailings
Radiation Control Act of 1978 (42 U.S.C.
2022) and Health and Environmental
Protection Standards for Uranium and
Thorium Mill Tailings (40 CFR part 192).
  b. Clean Air Act (42 U.S.C. 7401). (1)
National Primary and Secondary
Ambient Air Quality Standards (40 CFR
part 50).
  (2) Standards for Protection Against
Radiation (10 CFR part 20). See also 10
CFR parts 10, 40, 60, 61, 72, 960, 961.
  (3) National Emission Standards for
Hazardous Air Pollutants (40 CFR part
61). See also 40 CFR 427.110-427.116,
763.
  (4) New source performance
standards (40 CFR part 60).
  vi. Other Federal Requirements:
  a. National Historic Preservation Act
(16 U.S.C. 470). Compliance with NHPA

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            Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules  and Regulations
                                                                        101
required pursuant to 7 CFR part 650.
Protection of Archaeological Resources:
Uniform Regulations—Department of
Defense (32 CFR part 229), Department
of the Interior (43 CFR part 7).
  b. DOT Rules for the Transportation
of Hazardous Materials, 49 CFR parts
107,171,172.
  c. The following requirements are also
potentially ARAR:
  (1) Endangered Species Act of 1973 (16
U.S.C. 1531). Generally, 50 CFR parts 81,
225, 402.
  (2) Wild and Scenic Rivers Act (16
U.S.C. 1271).
  (3) Fish and Wildlife Coordination Act
(16 U.S.C. 661).
  (4) Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. 136), 40 CFR
part 165;
  (5) Wilderness Act (16 U.S.C. 1131).
  (6) Coastal Barriers Resources Act (16
U.S.C. 3501).
  (7) Surface Mining Control and
Reclamation Act (30 U.S.C. 1201).
  (8) Coastal Zone Management Act of
1972 (16 U.S.C. 1451). Generally, 15 CFR
part 930 and 15 CFR 923.45 for Air and
Water Pollution Control Requirements.
  (9) Magnuson Fishery Conservation
and Management Act (16 U.S.C. 1801 et
seq.).
  (10) Marine Mammal Protection Act
(16 U.S.C. 1361 et seq.).
  2. Examples of potential state ARARs.
i. State requirements  for disposal and
transport of radioactive wastes.
  ii. State approval of water supply
system additions or developments.
  iii. State ground-water withdrawal
approvals.
  iv. Requirements of authorized
(subtitle C of RCRA)  state hazardous
waste programs.
  v. State Implementation Plans (SIPs)
and delegated programs under the Clean
Air Act.
  vi. Approved state NPDES program
under the Clean Water Act.
  vii. Approved state underground
injection control (UIC) programs under
the Safe Drinking Water Act.
 ' viii. Approved state wellhead
protection programs.
  ix. State water quality standards.
  x. State air toxics regulations.
  3. Other federal criteria, advisories,
and guidance, to be considered, i.
Federal Criteria, Advisories, and
Procedures.
  a. Health Effects Assessments (HEAs)
and Proposed HEAs ("Health Effects
Assessment Summary Tables," updated
quarterly).
  b. Reference Doses (RfDs) ("Health
Effects Assessment Summary Tables,"
updated quarterly, or "Integrated Risk
Information System (IRIS)," updated
monthly).
  c. Slope Factors for Carcinogens
("Health Effects Assessment Summary
Tables," updated quarterly, or
"Integrated Risk Information System
(IRIS)," updated monthly).
  d. Pesticide registrations and
registration data.
  e. Pesticide and food additive
tolerances and action levels.
  Note: Germane portions of tolerances and
action levels may be pertinent and therefore
are to be considered in certain situations.
  f. PCB Spill Cleanup Policy (52 FR
10688, April 2,1987).
  g. Waste load allocation procedures
(40 CFR parts 125,130).
  h. Federal sole source aquifer
requirements  (52 FR 6873, March 5,
1987).
  i. Public health basis for the decision
to list pollutants as hazardous under
section 112 of the Clean Air Act.
  j. EPA's Ground-Water Protection
Strategy.
  k. Guidance on Remedial Actions for
Contaminated Ground Water at
Superfund Sites (Draft, October 1986)
establishes criteria for the use of
background concentrations and ACLs.
  1. Superfund Public Health Evaluation
Manual.
  m. TSCA health data.
  n. TSCA chemical advisories.
  o. ATSDR Toxicological Profiles.
  p. Advisories issued by FWS and
NWFS under  the Fish and Wildlife
Coordination Act.
  q. TSCA Compliance Program Policy
("TSCA Enforcement Guidance Manual
Policy Compendium," USEPA, OECM,
OPTS, March 1985).
  r. Health Advisories, EPA Office of
Water.
  s. EPA/DOT Guidance Manual on
Hazardous Waste Transportation.
  ii. USEPA RCRA Guidance
Documents.
  a. Alternate Concentration Limits
(ACL) Guidance (draft).
  b. EPA's RCRA Design Guidelines.
  (1) Surface  Impoundments—Liner
Systems, Final Cover, and Freeboard
Control.
  (2) Waste Pile Design—Liner Systems.
  (3) Land Treatment Units.
  (4) Landfill Design—Liner Systems
and Final Cover.
  c. Permitting Guidance Manuals.
  (1) Permit Applicant's  Guidance
Manual for Hazardous Waste Land
Treatment, Storage, and Disposal
Facilities.
  (2) Permit Applicant's  Guidance
Manual for the General Facility
Standards of 40 CFR 264.
  (3) Permit Writer's Guidance Manual
for Hazardous Waste Land Treatment,
Storage, and Disposal Facilities.
  (4) Permit Writer's Guidance Manual
for the Location of Hazardous Waste  •  •
Land Storage and Disposal Facilities:
Phase I, Criteria for Location
Acceptability and Existing Regulations
for Evaluating Locations.
  (5) Permit Writer's Guidance Manual
for Subpart F.
  (6) Permit Applicant's Guidance
Manual for the General Facility
Standards.
  (7) Waste Analysis Plan Guidance
Manual.
  (8) Permit Writer's Guidance Manual
for Hazardous Waste Tanks.
  (9) Model Permit Application for
Existing Incinerators.
  (10) Guidance Manual for Evaluating
Permit Applications for the Operation of
Hazardous Waste Incinerator Units.
  (11) A Guide for Preparing RCRA
Permit Applications for Existing Storage
Facilities.
  (12) Guidance Manual on Closure and
Post-Closure Interim Status Standards.
  d. Technical Resource Documents
(TRDs).
  (1) RCRA Ground-Water Monitoring
Technical Enforcement Guidance
Document.
  (2) Evaluating Cover Systems for Solid
and Hazardous Waste.
  (3) Hydrologic Simulation of Solid
Waste Disposal Sites.
  (4) Landfill and Surface Impoundment
Performance Evaluation.
  (5) Lining of Water Impoundment and
Disposal Facilities.
  (6) Management of Hazardous Waste
Leachate.
  (7) Guide to the Disposal of
Chemically Stabilized and Solidified
Waste.
  (8) Closure of Hazardous Waste
Surface Impoundments.
  (9) Hazardous Waste Land Treatment.
  (10) Soil Properties, Classification,
and Hydraulic Conductivity Testing.
  e. Test Methods for Evaluating Solid
Waste.
  (1) Solid Waste Leaching Procedure
Manual.
  (2) Methods for the Prediction of
Leachate Plume Migration and Mixing.
  (3) Hydrologic Evaluation of Landfill
Performance (HELP) Model Hydrologic
Simulation and Solid Waste Disposal
Sites.
  (4) Procedures for Modeling Flow
Through Clay Liners to Determine
Required Liner Thickness.
  (5) Test Methods for Evaluating Solid
Wastes.
  (6) A Method for Determining the
Compatability of Hazardous Wastes.
  (7) Guidance Manual on Hazardous
Waste Compatability.

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102	Federal  Register / Vol. 55, No. 46  / Thursday. March 8, 1990  /  Rules and Regulations
  Hi. USEPA Office of Water Guidance
Documents.
  a. Pretreatment Guidance Documents.
(1) 304(g) Guidance Document on
Revised Pretreatment Guidelines (3
volumes).
  b. Water Quality Guidance
Documents. (1) Ecological Evaluation of
Proposed Discharge of Dredged Material
into Ocean Waters (1977).
  (2) Technical Support Manual:
Waterbody Surveys and Assessments
for Conducting Use Attainability
Analyses (1983).
  (3) Water-Related Environmental Fate
of 129 Priority Pollutants (1979).
  (4) Water Quality Standards
Handbook (1983).
  (5) Technical Support Document for
Water Quality-Based Toxics Control.
  (6) Developing Requirements for
Direct and Indirect Discharges of
CERCLA Wastewater (1987).
  c. NPDES Guidance Documents. (1)
NPDES Best Management Practices
Guidance Manual (June 1981).
  (2) Case studies on toxicity reduction
evaluation (May 1983).
  d. Ground Water/UIC Guidance
Documents. (1) Designation of a USDW.
  (2) Elements of Aquifer Identification.
  (3) Definition of major facilities.
  (4) Corrective action requirements.
  (5) Requirements applicable to wells
injecting into, through, or above an
aquifer that has been exempted
pursuant to 40 CFR 146.104(b)(4).
  (6) Guidance for UIC implementation
on Indian lands.
  e. Clean Water Act Guidance
Documents.
  f. Guidance for Applicants for State
Well Head Protection Program
Assistance Funds under the Safe
Drinking Water Act (Office of Ground-
Water Protection, June 1987).
  iv. USEPA Manuals from the Office of
Research and Development.
  a. EW 846 methods—laboratory
analytic methods.
  b. Lab protocols developed pursuant
to Clean Water Act section 304(h).
  v. Other.
  a. Data Quality Objectives, Volumes I
and II.
  b. Guidance for Conducting Remedial
Investigations and Feasibility Studies
Under CERCLA (Draft).
  c. Guidance on Preparing Superfund
Decision Document: The Proposed Plan
and Record of Decision (Draft).
  d. Standard Operating Safety Guides.

Community Relations

  Name: Sections 300.430(cJ, 300.430(f)
(2), (3) and (6). Community relations
during RI/FS and selection of remedy.
  Existing rule: Sections 300.67(a) and
(c) require the lead agency to develop
and implement a community relations
plan (CRP) at NPL sites prior to
initiation of field activities. In the case
of removal actions or other short-term
actions, § 300.67(b) requires that a
spokesperson be designated and a CRP
prepared if the action exceeds 45 days.
Section 300.67(d) states that the lead
agency must provide the public with not
less than 21 calendar days to review and
comment on the feasibility study (FS).
Public meetings should be held during
the comment period and the lead agency
may also provide the public with an
opportunity to comment during the
development of the FS. A document
summarizing major issues raised by the
public is required by § 300.67(e). The
summary must include how the issues
are addressed. Section 300.67(f)
indicates that in enforcement actions,
the CRP and public review of the FS
may be modified or adjusted at the
direction of the court. Section 300.67(g)
states that when responsible parties
implement site remedies, the lead
agency shall provide public notice and a
30-day comment period. In addition, a
document summarizing the major issues
raised by the public and how they are
addressed must be prepared.
  Proposed rule: In the 1986
amendments to CERCLA,  Congress
added a new section 117 to provide  for
involvement by the public in Superfund
decision-making. The NCP incorporates
these new statutory requirements and
those in existing policy, as well as
several additional requirements based
on program experience.
  Proposed § 300.430(c) requires the
lead agency, to the extent practicable
prior to commencing field work for the
remedial investigation (RI), to conduct
community interviews, prepare a formal
CRP, and to establish a local
information repository. Section
300.430(f) requires that a proposed plan
be prepared. After preparation of the
proposed plan, § 300.430(f)(2) requires
the lead agency to publish a notice of
availability and brief analysis of the
proposed plan, make the proposed plan
available in the administrative record,
provide a public comment period of not
less  than 30 calendar days on the
proposed plan and supporting analysis
and  information, including the RI/FS,
provide an opportunity for a public
meeting, keep a transcript of the public
meeting and make it available to the
public, prepare a written summary of
significant comments submitted along
with the lead agency response, and
make the summary available with the
record of decision (ROD). When the
ROD is signed, § 300.430(f)(5)
(§ 300.430(f)(6) in the final rule) requires
the lead agency to publish a notice of
availability and make the ROD
available for public inspection prior to
the start of remedial action. Section
300.815(a) requires the lead agency to
make the administrative record file
available for public inspection when the
RI begins.
  General discussion: CERCLA
establishes the basic framework for
community relations activities during
response actions. Consistent with the
flexibility provided by CERCLA and to
allow public participation activities to
be tailored to site-specific
circumstances, the NCP specifies the
minimum level of public involvement
but does not preclude the lead agency
from undertaking, additional public
involvement activities where
appropriate. EPA has implemented a
variety of additional public involvement
activities at Superfund sites over the
past nine years that have proven helpful
to affected communities in
understanding and participating in
response action decision-making.
  Shortly after the completion of the
public comment period on the proposed
NCP last year, EPA issued "A
Management Review of the Superfund
Program," William K. Reilly,
Administrator, U.S. Environmental
Protection Agency. One aspect of the
study was community involvement. The
Study includes a series of
recommendations, some of which
reinforce existing practices while others
present new ideas. Many specific
recommendations in this report are
consistent with requirements in the final
rule. Other ideas discussed in the
management review are highlighted in
today's preamble as further examples of
good program practice that encourage
public involvement.
  Public participation and involvement
is also a major focus of administrative
record requirements under subpart I.
Requirements and recommendations on
subparts E and J on public participation
interrelate to a large degree. Therefore,
there is some discussion in this section
of today's preamble on  the
administrative record.
  Response to comments: Many
comments were received on the
community relations requirements in the
NCP. Some commenters addressed the
organization of community relations
requirements in the proposed NCP. One
commenter supported the reorganization
of community relations requirements
with the actions to which they apply.
Another commenter stated that the
requirements should be in a separate
subpart with subsections corresponding
to the phases of the process.

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            Federal Register / Vol. 55, No.  46 / Thursday, March 8, 1990 / Rules  and Regulations
                                                                        103
  EPA disagrees that community
relations should be in a separate
subpart. EPA purposely reorganized the
placement of community relations
requirements in order to ensure a clearer
and more orderly integration of
community relations into each
appropriate phase of the Superfund
process.
  Several commenters recommended
increased opportunities for public
participation, while one commenter
suggested that the proposed community
relations procedures that exceed those
required by CERCLA may hinder timely
cleanup efforts. The commenters
recommending increased participation
asserted that the NCP should specify
formal public involvement throughout
the entire process, beginning with
notification to  communities at the
preliminary assessment/site inspection
[PA/SI) stage and continuing through
site closure and deletion. A commenter
stated that the Superfund process should
include regular input from the
community and another commenter
suggested that the public should be
informed about the project and any
problems that may arise in the short and
long term. Several commenters stated
that investigators should use citizens as
a source of information about sites in
their communities.
  In response, EPA does not agree that
the proposed community relations
requirements will hinder timely
cleanups because such requirements
have been carefully integrated into the
response process so as not to interfere
with other activities necessary for
cleanup. EPA encourages the lead
agency to involve the interested public
through all stages of the cleanup process
and to be responsive to the
communications needs of communities
near Superfund sites. It is EPA's
experience, however, that not all
communities desire or request a
multitude of public involvement
activities. Moreover, the degree of
appropriate involvement will vary with
the characteristics of the site and the
nature of the response. Therefore, EPA
believes that it is inappropriate to
specify in a general rule, such as the
NCP, a detailed regimen of all potential
public involvement activities that may
be appropriate or desirable in certain
situations. Thus, EPA believes that the
provisions  in the NCP which incorporate
statutory requirements and basic
community relations activities which
EPA has found through experience to be
necessary, establish adequate minimum
public involvement requirements for all
Superfund sites.
  If, however, members of a community
desire more opportunities for
participation or involvement than
specified in the NCP, for example, public
involvement activities as early as the
PA/SI stage, they may request that the
lead agency conduct such activities.
Informal contact with interested
community members and local officials
during the early stages of the response
process may be desirable, for example,
in communities where it is suspected
that the site presents a high risk to the
population or where there is significant
citizen interest. A mailing list of
interested community members could be
compiled at this stage as necessary to
implement public involvement activities.
Moreover, a fact sheet could be
prepared during the SI to explain the
purpose of the  SI and its possible
outcomes.
  EPA agrees that interviews of
residents of the community can be a
major source of information about
conditions at and the history of a site.
Through such interviews, the lead
agency can also identify community-
specific interests and concerns and may
also gather information helpful in
identifying PRPs. The NCP includes
community interviews as part of the
public involvement activities to be
conducted at Superfund sites.
  Another commenter suggested that the
public should be involved through
meetings and comment periods before
the proposed plan is issued. One
commenter suggested that the lead
agency be required to hold a public
meeting on the work plan for the RI and
that the community should be  allowed
to review the RI report.  The commenter
further suggested that written
responsiveness summaries be  prepared
by the lead agency for the comments
raised at the public meeting on the RI.
Another commenter felt that the public
should receive more education about the
ramifications of investigation results. In
addition, a commenter asserted that
information on risk should be included
in RI/FS reports and should be
explained to the public.
  The NCP provides one formal
comment period on the proposed
response action at all sites (except
certain time-critical removals). In
addition, the administrative record is
available for public review prior to, and
following, the formal comment period.
While EPA agrees that additional
comment periods and meetings, both
formal and informal, may be appropriate
and desirable at certain sites,  decisions
on what type of additional formal public
involvement activities are warranted
must be made  on a site-specific basis,
and thus are not mandated in the NCP.
If a person needs more information
about a site, he/she may, at any time in
the remedial process, review the
ongoing compilation of documents in the
administrative record file or request that
the lead agency conduct a public
briefing or workshop in addition to that
required by the NCP. EPA may conduct
a public briefing on the RI work plan or
provide some other type of public
information meeting when there is
sufficient public interest. EPA
encourages all lead agencies to consider
such activities. Similarly, if a person
needs more explanation concerning the
RI and risk assessment and
ramifications associated with them (a
description of the risk posed by a site
generally is included in the RI report),
he/she can request that the lead agency
conduct a public briefing. Lead agencies
are encouraged but not required to
prepare a responsiveness summary for
any comments submitted outside of
formal comment periods.
  Several commenters addressed the
development of CRPs. One commenter
argued that the start of community
interviews should be publicized and
should include mention of the
availability of technical assistance
grants (TAGs). Another commenter
objected to the limited, nonsubstantive
nature of community interviews. Other
commenters said there should be more
community involvement in developing
CRPs and that they should be a "two-
way communications tool", rather than
a "one-way dialogue" or "sell job" from
the agency to the community. Additional
commenters suggested that the
community should review drafts of the
CRP.
  EPA does not agree that the lead
agency must publish  a notice in a
.newspaper on the initiation of
community interviews. The lead agency
generally will give notice to key
community leaders that interviews are
being conducted. Every effort is made to
obtain a broad representation of the
community in selecting individuals to
interview  and additional names may be
gathered during the interview process.
The NCP identifies local officials,
community residents, public interest
groups, or other interested or affected
parties as individuals to interview, but
this is not meant to be an all inclusive
list. EPA believes that any and all
interested parties are potential
interviewees. EPA has added the
requirement that the lead agency inform
the members of the community of the
availability of technical assistance
grants (TAGs). In response to comments
that the community should review drafts

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104	Federal Register / Vol. 55, No.  46 / Thursday, March 8,  1990 / Rules  and Regulations
of the CRP, generally it is not EPA's
practice to publicly release draft
documents in order to protect the lead
agency's deliberative process. However,
persons may submit comments on the
final CRP to the lead agency, which
may, as appropriate, revise the CRP in
response to these comments. And, in
fact, since the CRP is itself a public
involvement tool, lead agencies may
modify public outreach activities based
on the interviews or other information
obtained through implementation of the
CRP.
  During the community interviews, the
lead agency is required to determine
"how and when citizens  would like to be
involved in the Superfund program."
Once this is known, the public
participation activities desired can be
planned and implemented on a site-
specific basis appropriate to the level of
interest within that community. These
activities will be described in the CRP
that is developed for each site.
Therefore, because the interviews are
the primary source of information to the
lead agency about community concerns,
and such information is used to develop
the CRP, EPA does not agree with the
commenters' description of the CRP as  a
"one-way dialogue" or "sell job." EPA
intends that there be extensive public
involvement in developing the CRP,
namely in identifying community
concerns about the site and in
determining the appropriate
opportunities for community
involvement in site activities.
  However, because such comments
were received revealing  an apparent
misunderstanding of the  CRP, EPA is
revising § 300.430fc) to clarify the
purpose of the CRP which is: (1) To
ensure that the public receives
appropriate opportunities for
involvement in a wide variety of site-
related decisions, including during site
analysis and characterization,
alternatives analysis, and selection of
remedy; (2) to determine, based on
community interviews, appropriate
activities to ensure such public
involvement; and (3) to provide
appropriate opportunities for the
community to learn about the site.
  One commenter claimed that while
potentially responsible parties (PRPs)
are involved at every step of the
remedial process, citizens are shut out  of
decision-making concerning the scope of
the sampling programs, definitions of
affected populations, assumptions made
during risk assessments, establishment
of remedial action objectives, and many
other issues that are central to the final
selection of remedy. Other comments
were received on the availability and
accessibility of information. One
commenter observed that information
repositories should be locally available.
Several commenters suggested that free
copies of documents should be made
available and the repository should
include an index to facilitate document
retrieval. One commenter stated that
there should be citizen review of
contractor reports.
  EPA agrees that the lead agency
should provide citizens and PRPs with
access to the same technical information
about the site throughout the cleanup
process and believes that the NCP
provides this access. As required by the
statute, the NCP provides for the
establishment and public availability of
the administrative record files for each
response action. These files generally
will become available early in the
decision-making  process and will
include the types of documents
mentioned by the commenter. Members
of the public are provided an
opportunity and are encouraged to
review the documents prior to or during
the comment period. In addition, citizen
understanding of complex, technical
issues will be improved if lead agencies
and PRPs, where conducting response
actions, produce  clear and
understandable summaries of technical
documents. EPA  intends to work with
PRPs in the preparation of summaries of
technical documents for the public to the
extent that summaries are not already
included in fact sheets, updates,- and the
proposed plan. Lead agencies should
provide copies of these summaries hi the
information repository and, where
appropriate, the administrative record
file.
  In addition to the administrative
record file discussed above, the NCP
further requires that the lead agency
establish an information repository
before field work for the RI begins. Like
the administrative record, the
information repository is located at or
near the site. This repository should
contain a copy of items made available
to the public, including, unlike the
administrative record file, those not
directly related to selecting a remedy.
EPA generally provides for reasonable
access to documents by making
information repositories  convenient to
the interested public, in terms of
location, operating hours and copying
facilities, and by indexing the materials.
Lead agency staff should complete any
necessary reviews of documents as
quickly as possible so they can be
released to the public and placed in the
information repository and the
administrative record file. The public
should receive notice of the availability
of documents through fact sheets or
other mailings.
  In response to the comment that
citizens should be able to review
contractor reports, EPA stresses that the
lead agency creates an administrative
record file containing those documents
that form the basis for the selection of a
response action. Reports developed by
contractors that are relevant to response
selection will be included in the
administrative record file. EPA is not
requiring, however, that all contractor
reports be made available to the public.
Contractor reports that  are not relevant
to response selection decision-making
are not part of the administrative record
(see subpart I of the NCP for a
discussion of the administrative record).
  Another commenter asserted that EPA
should notify the public of meetings with
PRPs and allow a citizen representative
to be present. Related to this issue,
another commenter requested
clarification of the provision in the
proposed NCP allowing the lead agency
to conduct technical discussions with
PRPs and the public separately from, but
contemporaneously with, negotiation/
settlement discussions.  One commenter
recommended that citizen advisory
committees be created as a part of the
Superfund community relations process
to facilitate a partnership between EPA
and community representatives.
  The rule does allow for technical
discussions involving responsible
parties and the public. They are,
however, to be held separately from
settlement negotiation discussions in
which information on liability of a party
and other enforcement sensitive issues
are discussed. Lead agencies  should,
however, bring citizens into technical
discussions early in the RI/FS process.
Some mechanisms, such as community
work groups,  task groups and
information committees, have proven
successful in bringing together citizens,
local government officials, and PRPs.
EPA encourages communities to form
work groups and to keep these work
groups informed about lead agency
actions. EPA, however,  is not revising
the NCP to require the establishment of
more formal groups  such as citizen
advisory committees. Such committees
may not be necessary or appropriate for
every site. Further, if EPA were to
establish formal citizen advisory
committees, they may be subject to the
Federal Advisory Committee  Act which
sets specific restrictions on the
composition and conduct of such
committees.
  Several commenters indicated that the
language in subpart I on administrative
record, stating that EPA is not required

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            Federal Register  /  Vol. 55,  No. 46 / Thursday,  March 8,  1990 / Rules and  Regulations
                                                                        105
to respond to comments submitted
before the public comment period, sends
the wrong message regarding EPA's
interest in public participation. The
commenters urged EPA to encourage
response to early comments, thereby
improving decision-making. Another
commenter asked that the public be
provided not only a summary of the
support agency's comments on the
proposed plan but the lead agency's
response to those comments as well.
  Although EPA agrees that a prompt
response to comments is desirable in
most cases, EPA is only requiring a
formal response to comments to be
prepared after the close of the public
comment period on the proposed plan.
EPA is not requiring that comments
received before the public comment
period be responded to before the
comment period for several reasons.
First,  it is likely that the lead agency
would not have enough information to
sufficiently respond to some comments
early  in the process of investigating and
analyzing sites or prior to receipt and
consideration of all public comments.
Second, if the NCP required comments
(e.g., PRP volumes  of comments and
studies) to be responded to as they were
received, site managers could
continually be diverted from their site
cleanup tasks to spend time responding
to comments. The NCP, therefore,
requires that comments must be
responded to only  during specific times
in the process. The NCP requires that
the lead agency summarize the
comments received during the comment
period on the proposed plan and provide
its response to these comments. This
document, the "responsiveness
summary," is part of the record of
decision, and is placed in the
administrative record file. Site managers
may respond to comments received at
other times at their discretion. However,
as discussed in the preamble to subpart
I, EPA has revised the rule to encourage
lead  agencies to respond to significant
comments submitted prior to the formal
comment period.
   Other commenters said there should
be additional communication with the
public, such as more public meetings,
 direct mailings, and an improved
' notification system. A commenter
 suggested that the lead agency should
 be required to compile a site mailing list.
 EPA  encourages such additional
 communication with the public in order
 to respond to their information requests.
 The lead agency will determine what is
 the most effective notification system
 for a particular site. Therefore, EPA
 believes that it is not appropriate or
 necessary in the NCP to require such
 activities, e.g., a site mailing list, at all
 sites.
  Some commenters suggested that the
 NCP require the lead agency to make
 available at public meetings conducted
 to discuss the proposed plan, those
 consultants or lead agency
-representatives who prepared the RI/FS
 and selected the response.
  EPA does not agree that it is
 necessary for the NCP to require at
 every site that the consultants who
 aided in the development of the
 proposed plan or RI/FS attend public
 meetings on the proposed plan. The lead
 agency is responsible  for conducting
 such meetings and the presence of
 consultants is not always necessary in
 order for the lead agency to explain the
 proposed remedy and the supporting
 analyses and to respond to  questions
 asked by the public.
   A series of commenters addressed the
 specifics of the technical assistance
 grant (TAG) program, the tuning of TAG
 awards in the remedial process, and
 how TAGs should be implemented. One
 commenter stated that TAG should be
 integrated into the community relations
 provisions of the NCP. Another
 commenter recommended that TAGs be
 referenced or directly incorporated in
 the NCP in order to assist in promoting
 participation in the TAG program. A
 commenter offered specific language to
 be inserted into the NCP, which would
 include stating that EPA would
 encourage citizens to  apply for TAGs.
   Specific comments on the TAG
 program will be addressed  in the TAG
 final rule. However, EPA does agree that
 TAGs also should be  discussed in the
 NCP. Specifically, the availability of
 TAGs is now referenced in § 300.430(c).
 By including a reference to  TAGs in the
 NCP, EPA intends to encourage citizens
 to apply for TAGs.
   Additionally, EPA encourages PRPs to
 provide grants to communities to enable
 them to obtain independent technical
 assistance as a complement to, and
 separate from, the EPA TAG program.
 EPA can provide information and advice
 to PRPs and communities regarding how
 such PRP grants have been used
 successfully at other Superfund sites.
   A commenter stated that the cleanup
 process in general, from the RI/FS to
 remedy selection, is hindered by a lack
 of a free flow of information between
 lead agencies and PRPs. Commenters
 argued that PRPs need increased
 opportunity to participate in the
 decision-making process. They
 recommended that the NCP provide an
 opportunity for PRPs to receive copies of
 and to formally-comment on all key EPA
 decision documents, including the work
plan, sampling results, the risk
assessment, and the detailed remedial
studies. One commenter contended that
allowing PRPs to comment only on the
proposed plan limited PRPs from
developing the administrative record in
a meaningful way, violated their due
process rights, and was contrary to the
intent of CERCLA. Another commenter
suggested that there should be a formal
mechanism for PRPs to participate in the
development of the administrative
record with regard to the selection of
remedy.
  In response to the comments
suggesting more PRP involvement, EPA
believes that the NCP provides
numerous opportunities for PRP
involvement. When the lead agency
identifies PRPs, they are presented with
the opportunity to undertake the
remedial investigation and feasibility
study and cleanup under lead agency
oversight. If PRPs choose not to
undertake these tasks, they are provided
with the same opportunities for
involvement in  site cleanup decisions
that the general public is afforded. The
regulations promulgated today require
that some of the documents specifically
requested by some commenters
(sampling results, risk assessments, and
others) are placed in the administrative
record file as soon as they are available
for public review. Such documents may
be commented on during the comment
period on the proposed plan. The NCP
provides PRPs with a full opportunity to
comment on key decision documents,
not just the proposed plan, and to
participate in the development of the
administrative record. Thus, public
involvement opportunities provided by
the NCP are fully consistent with
congressional intent and any due
process requirements. Subpart I also
includes a discussion of the
development of the administrative
record.
   One commenter asserted that states
should have discretion to vary the
community relations process, for
example, substituting news releases for
paid advertisements to announce the
proposed plan,  comment periods, and
public meetings; substituting a tape
recording for a  written transcript of
public meetings; and shortening the
public comment period in some cases to
less than 30 days.
   EPA does not agree that lead agencies
 should have discretion to vary the
 community relations requirements set
 out in the NCP. In order to ensure
 adequate minimum public participation
 at all sites across the nation, EPA
 maintains that  the lead agency must

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106
Federal Register / Vol. 55,  No. 46 /  Thursday.  March 8,  1990 / Rules and Regulations
comply with the community relations
requirements specified in the NCP.
  Final rule:  The following additions
are made to proposed § 300.430(c):
  1. The purpose of the community
relations plan is described in
§ 300.430(c)(2)(ii).
  2. A statement on the availability of
technical assistance grants (TAGs) has
been added to § 300.430(c)(2)(iv].
  Mime; Sections 300.415(m)(2)(ii),
300.430{f)(3)(i)(C) and 300.435(c)(2)(ii)(C).
Length of public comment period.
  Existing rule: Section 300.67 requires
a minimum 21-calendar day public
comment period on feasibility studies
that outline alternative remedial
measures.
  Proposed rule: Proposed
§ 300.415(n)(2)(ii) (§ 300.415{m)(2)(ii) in
the final rule) required a minimum 30-
day public comment period on the
administrative record, as appropriate,
for time-critical and non-time-critical
removal actions. Proposed
§ 300.430{f)(2)(i}(C) (§ 300.430(f)(3)(i)(C)
in the final rule) and
§ 300.435{c)(2)(ii)(C) required a minimum
30-calendar day public comment period
on the proposed plan and other
documents for remedial actions.
  Response to comments: Several
commenters requested that the minimum
duration of the public comment period
for remedial actions be increased. Most
commenters recommended a 60-day
minimum and some recommended at
least a 90- or 120-day period. A few
commenters requested that the minimum
public comment period for non-time-
critical removal actions be increased
from 30 to 60 days. One commenter
requested such an increase for time-
critical and non-time-critical removal
actions.
  Many reasons were given for
increasing the minimum comment
period, including that it would allow
more time to review large volumes of
technical information and complex
issues and to obtain technical assistance
in reviewing such information. Some
commenters noted the importance of the
comment period because it is the only
meaningful opportunity to provide input
on the proposed remedial action. One
commenter asserted that selection of a
remedy typically represents an
expenditure of millions of dollars and
that a full airing of the alternatives with
a meaningful opportunity to evaluate
and comment on the alternatives is
warranted to avoid the squandering of
public and private resources. Another
commenter added that a longer
comment period would not threaten the
environment because EPA retains its
ability to respond to imminent threats.
                           One commenter suggested that a
                           comment period of less than 30 days
                           may be adequate for emergency actions
                           or when the community agrees with the
                           remedy.
                             There is no question that the public
                           comment period should be long enough
                           to allow sufficient review of the
                           proposed plan and key documents in the
                           administrative record file, and should
                           take into account the length and
                           complexity of the information under
                           review at such time. EPA notes that
                           some if not most of these lengthy
                           technical documents are placed in the
                           administrative record file and made
                           available for public review well before
                           the start of the comment period, thus
                           allowing a longer time for review of key
                           supporting documents. Also, the NCP
                           does not preclude the lead agency from
                           extending the period upon request and
                           such requests have been typically
                           granted. EPA believes, however, that
                           because of the importance of the public
                           comment period to response selection
                           decision-making, further time for
                           comment should be explicitly specified
                           in the NCP. Therefore, EPA has revised
                           the public comment period for remedial
                           actions to state that the minimum
                           comment period to be provided is 30
                           days but that this period will be
                           extended an additional 30 days upon
                           timely request (in order to be "timely," a
                           request generally must be received
                           within 2 weeks after the initiation of the
                           public comment period). The lead
                           agency may extend the comment period
                           on its own initiative when it is
                           appropriate or necessary  to do so or
                           announce from the outset that the
                           comment period will be longer than 30
                           days. EPA has also revised the language
                           on non-time-critical removal actions to
                           provide that an additional 15 days to the
                           public comment period will be granted
                           upon timely request. EPA believes that a
                           longer (i.e., 30-day) extension for
                           removal actions is not necessary
                           because the documents involved
                           generally are not as lengthy or complex
                           as for a remedial action. Any further
                           extensions are within the discretion of
                           the lead agency. This change is also
                           consistent with the Superfund
                           management review referenced above,
                           which specifically recommended
                           extending the comment period for
                           remedial actions an additional 30 days,
                           upon request.
                             Final rule: The final rule will be
                           revised as follows:
                             1. Add to § 300.415(m)(4)(iii): "Upon
                           timely request, the lead agency will
                           extend the public comment period by a
                           minimum of 15 additional days."
                             2. Add to §§ 300.430(f)(3)(i)(C) and
                           300.435(c)(2)(ii)(C): "Upon timely
request, the lead agency will extend the
public comment period by a minimum of
30 additional days."
  Name: Section 300.435(c). Community
relations during remedial design/
remedial action.
  Existing rule: Section 300.67 addresses
community relations in general, but does
not include community relations
requirements during the RD/RA stage.
  Proposed rule: CERCLA section 117(c)
requires publication of an explanation of
significant differences (BSD) if the
action differs in significant respects
from the final plan. Proposed
§ 300.435(c) provides for revision of the
community relations plan prior to
initiation of remedial design if necessary
to address new concerns. It also
specifies procedures for publishing an
explanation of significant differences
(BSD) from the ROD and for amending a
ROD. The lead agency is required to
provide an  opportunity for public
comment only when it proposes to
amend a ROD.
  Response to comments: Many
commenters requested the opportunity
for increased public participation
throughout  the post-ROD period. Several
commenters strongly recommended
keeping the public informed about
changes and accomplishments during
design and  construction of the remedy.
Some suggested that the states should
continue to be provided with
opportunities for substantial and
meaningful participation through the
post-ROD period. Others stated that the
lead agency should be required to seek
out and respond to observations of
residents near the site during remedial
action. One commenter recommended
that public involvement be mandated in
the NCP until final closure,  stating that
such action would encourage teamwork
and reduce  adversarial relationships
and distrust during cleanups.
  Some commenters objected to the
proposed requirement for revising the
community  relations plan because it is
not required by statute and will further
slow down  the cleanup process. One
suggested that press releases will satisfy
information needs of the community.
  Some commenters stated that
community  relations activities during
RD/RA other than those specified
should be determined on a site-by-site
basis at the discretion of the lead
agency. Such activities should reflect the
degree of public concern communicated
through the community interviews and
the revision of the CRP.
  Another commenter recommended
that a fact sheet be issued or a public
meeting be held prior to completion of

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            Federal Register / Vol. 55, No.  46 / Thursday, March 8,  199O / Rules and  Regulations
                                                                        107
remedial design, that the information
repository should continue to be
maintained and that interviews be
conducted when revising the community
relations plan.
  EPA agrees that public participation
throughout the remedial design/
remedial action (RD/RA) stage of the
remedial response is important. It is
EPA's intent to continue to undertake
activities during RD/RA that involve
affected communities and interested
parties in actions taken at a site to
ensure that the concerns of interested
parties are addressed. The proposed
rule provided for revision to the
community relations plan (CRP) during
RD/RA in cases where community
concerns are not already addressed by
the CRP. The final rule requires the lead
agency to review the CRP prior to the
initiation of the remedial design. This
revision is more proactive than the
proposed rule because it ensures that
the lead agency will reevaluate at every
site the adequacy of the CRP for the RD/
RA phase of response. If further public
involvement activities during RD/RA
are not already described in the CRP,
the CRP will be revised so that an
appropriate level of public involvement
will be maintained. EPA believes that it
is necessary to reassess citizens'
concerns after selection of the remedy in
order to evaluate the effectiveness of
EPA's communications efforts to date
and to determine whether public
involvement concerns have changed as
a result of changes in  the community.
EPA recognizes that during the
Superfund process, elected officials may
change and new people may move into
the area. The review of the CRP at the
RD/RA phase will allow the lead agency
to take into account concerns raised by
these new members of the community.
   Additionally, in response to comment,
EPA has revised the NCP to require lead
agencies to conduct further public
involvement activities during RD/RA,
including distributing a fact sheet on  the
final engineering design to the
 community and other interested persons.
The fact sheet will enable the lead
 agency to inform the public about
 activities related to the final design,
 including the schedule for implementing
 the remedy, what the site will look like
 during operation of the remedy and an
 explanation, if appropriate, of the roles
 of the various government agencies that
 may be involved in the remedial action,
 e.g., EPA, the state or the Corps of
 Engineers. A fact sheet generally can
 contain more information than a press
 release so it is preferred as a means of
 communication with the public. Site
 contingency plans and any potential
inconveniences that may occur, such as
excess traffic or noise, should also be
explained.
  EPA is also requiring that a public
briefing be provided, as appropriate,
near the site prior to initiation of the
remedial action. A public briefing could
address issues such as construction
schedules, changes in traffic patterns,
location of monitors, and ways in which
the public will be informed of progress
at the site. EPA believes that these types
of activities can keep the community
fully informed of activities at the site
throughout remedial design  and
remedial action.
  EPA encourages lead agencies to
develop additional public involvement
activities, in response to the specific
needs of a community. Activities may
include fact sheets on the status of
negotiations with PRPs, continuing to
maintain information repositories, as
well as workshops to assist the public in
understanding how the cleanup
technology will work.
  EPA does not agree that such
activities will necessarily lead to
substantial delays at sites. EPA  places
high value on full and deliberate public
involvement because EPA believes it is
important that the public is aware of
what is being done in the community. In
addition, the information received from
the public may be helpful in designing
and conducting cleanup activities and in
avoiding misunderstandings that may, in
the long term, disrupt or delay cleanup
efforts.
   In response to the comment requesting
that the NCP specify opportunities for
state involvement after the  ROD is
signed, the amount of state participation
with respect to an explanation of
significant differences (BSD) is
discussed in the next preamble section.
State involvement during RD/RA will be
specified in site-specific cooperative
agreements or Superfund state contracts
rather than in the NCP (see preamble
section below corresponding to
 § 300.515(g}).
   Final rule: Proposed § 300.435(c) is
revised as follows:
   1. Under § 300.435(c), the lead agency
is required to review the CRP prior to
 the initiation of remedial design to
 determine whether the CRP should be
 revised to describe further public
 involvement activities.
   2. Section 300.435(c)(3) is added
 requiring the lead agency after the
 completion of final engineering  design to
 distribute a fact sheet and to provide, as
 appropriate, a public briefing prior to the
 initiation of the remedial action.
   Name: Section 300.435(c)(2). Changes
 to the ROD after its adoption.
  Proposed rule: Proposed
§ 300.435(c)(2) incorporated the
requirements of section 117(c] of
CERCLA that the lead agency publish an
explanation of the significant
differences when significant changes in
the remedy occur after the ROD is
signed, and the section 117(d)
requirement that such publication
include publication in a major local
newspaper of general circulation. In
addition, this section distinguishes
between an explanation of significant
differences, which announces a
significant change in the selected
remedy, and a ROD amendment, which
fundamentally alters the remedy
selected in the ROD.
  Section 122(d)(l)(A) of CERCLA
provides that whenever EPA enters into
an agreement under section 122 with
any PRP to undertake a remedial action,
the agreement shall be entered as a  .
judicial consent decree. Section
122(d}(2) requires that the Department of
Justice (DOJ) provide the public with an
opportunity to comment on the proposed
consent decree at least 30 days prior to
its entry. Where the proposed consent
decree fundamentally alters the ROD,
EPA contemplates that it will issue a
proposed ROD amendment concurrent
with the proposed consent decree, and
that the public comment period provided
pursuant to section 122(d](2) will satisfy
the requirements for additional public
comment for a ROD amendment.
  EPA believes that the appropriate
threshold for amending a ROD is when a
fundamentally different approach to
managing hazardous wastes at a site is
proposed. As a result, EPA has
determined that a change in remedial
approach sufficiently significant to
require ROD amendment should have
the benefit of consideration of  public
comments and should, therefore,
undergo the same public and support
agency involvement as the original
ROD, including the publication of a
proposed plan and a public comment
period.
   Response to comments: EPA received
 several comments requesting
 clarification of the different responses to
 changes in the remedy after the ROD is
 signed during the RD/RA process;
 specifically, commenters wanted
 clarification of the distinctions between
 a significant difference, which requires
 an BSD but no public comment, and
 fundamental change from the ROD,
 which requires a ROD amendment with
 public comment.
   A number of commenters addressed
 the procedures when there are changes
 to the ROD after its adoption.  Some
 commented that it is important to seek

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108        Federal Register  /  Vol.  55, No.  46 / Thursday, March 8,  1990 / Rules and Regulations
out public input before proposing to
amend the ROD because public
comments are of little use after a
decision has been made. Others argued
that reopening a final decision for
additional public comment can lead to
additional delay and cost in completing
remedial actions. A commenter stated
that CERCLA does not require a ROD
amendment to be subject to public
comment. Several commenters
requested that the lead and support
agencies should concur on proposed
significant changes and ROD
amendments before proposed changes
are announced to the public. One of
these commenters recommended that
the lead agency be required to respond
to a support agency's disagreement with
a proposed ROD amendment in the
notice of availability and hi the new
proposed plan.
  Many commenters contended that the
distinction between significant
difference and ROD amendment was not
clear and requested clarification. One
commenter recommended that the
public be given the opportunity to
comment on significant changes.
Another commenter recommended that
PRPs have an opportunity to comment
on proposed significant changes.
  One commenter recommended that
the preamble to the final NCP state that
the lead agency will reconsider its
remedy when new information indicates
that the selected remedy may not be
cost-effective or is otherwise
inconsistent with the NCP.
  EPA responds to the above comments
by clarifying changes to the ROD after
the ROD has been signed. After the ROD
is signed, new information may be
generated during the RD/RA process
that could affect the remedy selected in
the ROD. Three types of changes can
occur. (1) Nonsignificant changes; (2)
significant changes; and (3) fundamental
changes. The lead agency must identify
when a remedial action, settlement, or
decree differs significantly from the
ROD.
  Nonsignificant changes are minor
changes that usually arise during design
and construction, when modifications
are made to the functional, specifications
of the remedy to optimize performance
and minimize cost. This may result in
minor changes to the type and/or cost of
materials,  equipment, facilities, services
and supplies used to implement the
remedy. The lead agency need not
prepare an BSD for minor changes.
These changes should be documented in
the post-ROD file, such as the RD/RA
case file.
  Significant changes to a remedy are
generally incremental changes to a
component of a remedy that do not
 fundamentally alter the overall remedial
 approach. For example, the lead agency
 may determine that the attainment of a
 newly promulgated requirement is
 necessary, based on new scientific
 evidence, because the existing ARAR is
 no longer protective. Where this new
 requirement would affect a basic feature
 of the remedy, such as timing or cost,
 but not fundamentally alter the remedy
 specified in the ROD (i.e., change the
 selected technology), the lead agency
 would need to issue an explanation of
 significant differences announcing the
 change. Another example would be
 when sampling during the remedial
 design phase indicates the need to
 increase the volume of waste material to
 be removed and incinerated by 50
 percent, requiring an increase in cost, in
 order to meet remediation goals. This
 increase in the scope of the action
 represents a significant change and
 requires an BSD. Similarly, the lead
 agency may decide to  use carbon
 adsorption instead of air stripping to
 conduct ground-water treatment. This
 change requires an BSD to notify the
 public of the change; however, the basic
 pump and treat remedy remains
 unaltered and the performance level
 specified in the ROD will be met by the
 new technology, so a ROD amendment
 is not necessary.
   If the action, decree, or settlement
 fundamentally alters the ROD in such a
 manner that the proposed action, with
 respect to scope, performance, or cost, is
 no longer reflective of the selected
 remedy in the ROD, the lead agency will
 propose an amendment to the ROD. For
, example, the lead agency may have
 selected an innovative technology as the
 waste management approach in the
 ROD. Studies conducted during remedial
 design may subsequently indicate that
 the innovative technology will not
 achieve the remediation goals specified
 as protective of human health and the
 environment in the ROD. The lead
 agency, based on this information, may
 determine that a more conventional
 technology, such as thermal destruction,
 should be used at the site. In this event,
 the lead agency will propose to amend
 the ROD. The public will have a full
 opportunity to comment on the proposed
 amendment. Thus, contrary to the
 commenters'  suggestion, the final
 decision to amend is not made until
 after consideration of public comment,
 as in the original ROD.
   EPA also disagrees with the
 commenter who suggested that public
 comment should not be provided for
 ROD amendments because CERCLA
 does not require it. This comment
 apparently is based on the
 interpretation that once EPA selects a
final remedial plan, any further changes,
even those not contemplated in the
proposed plan or ROD and thus never
subject to public comment, would need
no public comment. EPA agrees that
CERCLA section 117 expressly provides
for public comment only on the
proposed plan and provides only a
notice requirement for significant
changes. However, EPA disagrees with
the commenter's interpretation that the
lack of an explicit requirement in the
statute means that no public comment is
necessary for any changes to the ROD.
The public comment on the original
proposed plan required under section
117(a) could be rendered meaningless by
a revision which is fundamentally
different from the remedies suggested in
the proposed or final remedial plan. EPA
does not believe that Congress intended
that the  critical public involvement
opportunities provided in section 117
could be made irrelevant in such a
manner. Moreover, because ROD
amendments are as important a part of
the remedial decision-making process as
the selection of the original remedy, EPA
believes that the public comment
opportunities on changes to the ROD
should be treated with equal
importance.
  One commenter stated that the public
should have the opportunity to comment
on the ESD, arguing that to do otherwise
would deny PRPs their due process
unless they were allowed to add to the
administrative record. EPA disagrees
with this comment.
  EPA has attempted to develop an
administrative process which balances
the public's continuing need for
information about, and input into, post-
ROD remedial action decisions, with the
lead agency's need to move forward
expeditiously with design and
implementation of the remedy after
fundamental decisions have been made
in the ROD. Thus, § 300.435(c) of the
final rule provides that where EPA plans
to make a fundamental alteration in a
selected remedy, EPA is required to
modify the ROD, and to follow a public
comment process similar to the
development of the original ROD.
However, where the change to the
action is "significant"—such that the
public should be notified of it—but is
not a fundamental alteration of the
selected remedy with respect to "scope,
performance, or cost," the lead agency
may publish an ESD without triggering a
new round of comment, as provided in
§ 300.43S(c) and section 117(c) of
CERCLA.
  This is not to say that the  public is
excluded from the administrative
process when ESDs are issued; rather,

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            Federal Register / Vol. 55, No. 46 / Thursday, March 8,  1990 / Rules and Regulations
                                                                        109
they have notice and a limited
opportunity to comment. Specifically,
EPA is required to document the
rationale for the changes contained in
an BSD, and to include such rationale in
the administrative record for public
review, pursuant to § § 300.435(c) and
300.825(a). Then, if a commenter
presents new information which
substantially supports the need for
significant changes to the remedy (as
modified by the BSD), the lead agency is
required to consider such comments.
Section 300.825(c). EPA believes that
these provisions provide ample
opportunities for public participation,
and that a separate comment period for
each BSD (plus a period for response to
comment) is not necessary or consistent
with the need to take prompt action,
especially where the change is not a
fundamental one. It should be noted
that, although Congress provided for a
comment period on the proposed plan, it
did not require one for an BSD.
  It is also important to note that at the
time of an BSD, the public will already
have had an opportunity to comment on
the alternative remedial options for the
site (including the recommended
remedial option) during the comment
period on the FS and proposed plan; it is
at that time that commenters may bring
to EPA's attention fundamental issues
concerning the remedial action that
should be taken. When an BSD is issued,
after remedy selection, EPA is simply
modifying, the remedy to enhance its
protectiveness, effectiveness, or cost; by
definition,  it is not a "fundamental"
reconsideration of the basic remedy
selection decision on which comment
was taken. Just as EPA may initially
select a remedy that differs somewhat
from  those proposed without triggering a
new round of comment each time
(indeed, the changes may be a direct
result of the comments), so may EPA
issue an BSD that reflects a
nonfundamental change or refinement in
the remedy without requiring a separate
round of comment.
   Commenters also requested more
information on the procedures for
 executing an BSD, specifically on the
roles of lead and support agencies.
 Commenters also recommended that the
 lead agency seek the approval of the
 support agency before releasing the
 BSD. When an BSD is issued, the lead
 agency should consult with the support
 agency (unless a SMOA, cooperative
 agreement, or Superfund state contract
 requires concurrence) prior to notifying
 the public in a major local newspaper of
 general circulation. The lead and
 support agency will'generally reach
 agreement on the proposed significant
change. If agreement cannot be reached,
and dispute resolution processes are not
effective, then the support agency's .
comments should be summarized in the
BSD and placed in the administrative
record files. The public notice of the
ESD will summarize the explanation of
significant differences by identifying the
significant changes and the reasons for
the changes. The lead agency will also
place the explanation of significant
differences and information supporting
the decision in the information
repository and administrative record
file. Further information concerning
issuance of ESDs on ROD amendments
is available in "EPA's Guidance on
Preparing Superfund Decision
Documents," OSWER Directive 9355.3-
02, October 1989 (Interim Final).
  One commenter requested EPA to
remove the institutional bias against
reopening the ROD, especially in the
light of new  monitoring data developed
in the design phase or in studies on
other operable units, that indicate  the
site is less hazardous than previously
thought. EPA recognizes that new
information  may warrant rethinking a
remedy selected for a site. EPA has
designed procedures, described in
§ 300.435(c), for amending the ROD if it
is warranted by new information.
  Final rule: EPA is promulgating the
rule as proposed.
  Name: Other community relations
requirements.
  Proposed rule; Section 300.155 is a
new section in the proposed NCP
outlining the purpose, applicability and
general procedures for establishing
community relations at a site, as well as
cross-referencing community relations
components of the removal, RI/FS, and
remedial design sections of the
regulations. Sections 300.415, 300.430
and 300.435  govern community relations
procedures for the removal, RI/FS, and
remedial design phases, respectively.
   Response to comments: Several of
those submitting comments requested a
general description of the enforcement
community relations process in the
preamble to the proposed NCP.
   While the sections cited above and
the preceding discussion detail the
processes governing community
relations at various stages in a
Superfund cleanup, including an
enforcement action, the following
discussion is intended to assist in giving
an overview of the role  of community
relations as it relates specifically to
enforcement actions.
   In response to citizen concerns, EPA
has made an effort  to foster better two-
way  dialogue between communities and
 those designing and conducting a  site
cleanup. EPA believes that responsible
and timely communication with the
public is essential both to improving site
responses through citizen input, and to
improving the public's understanding of
a site response in their community.
Accordingly, EPA feels that community
relations during an enforcement action
is an integral part of the process. In
fostering community involvement during
enforcement actions, regional
community relations coordinators
(CRCs) follow the same steps as they
would for Fund-financed actions:
Conducting community interviews,
developing community relations plans,
sending out public notices periodically
and  conducting public information
meetings. The lead agency at any site
develops a community relations plan
taking into account the concerns of the
community. In enforcement cases, the
plan should describe how the lead
agency will keep the public apprised of
the nature of the discussion with PRPs.
EPA retains control over developing,
writing and implementing these plans at
"PRP-lead" sites, but PRPs can assist in
the development of a plan at the
discretion of the regional office.
  Community relations activities in the
form of meetings with groups of citizens,
local officials and other interested
persons in the community, often occur
before the RI/FS special notice is sent
(see preamble to the proposed NCP on
special notice and moratoria, 53 FR
51432). Discussions of PRP liability and
possible settlement terms will generally
be reserved for confidential negotiation
sessions, but the lead agency will
attempt to explain these issues in
general terms to the public. Lead
agencies should bring citizens into
technical discussions  early in the RI/FS
process, and aid members of the public
seeking to apply-for technical assistance
grants.
  EPA received a comment asking that
federal agencies conducting  a response
action be granted greater flexibility
when implementing public participation
requirements, as long as they meet the
overall public participation objectives.
  Section 120(a}(2) of CERCLA holds
federal agencies to the same NCP
standards and requirements  as any
other party. In addition, the public
participation requirements in the NCP
establish basic minimum public
participation requirements. Exempting
federal agencies from, or granting them
discretion in, following specific public
participation requirements would run
contrary to Congressional intent to
institutionalize certain public
participation activities in response
 actions and EPA's experience

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110        Federal Register  /  Vol. 55,  No. 46  /  Thursday,  March 8, 1990  /  Rules and Regulations
concerning what requirements for public
involvement are essential. Subpart K of
the NCP will address in greater detail
the role of federal agencies other than
EPA in carrying out a response action.
  Final rule: See other preamble
sections on community relations for
descriptions of changes to the proposed
rule.

Enforcement
  Name: Superfund enforcement
program strategy.
  Proposed rule: The preamble to the
proposed NCP includes a brief
discussion of the 1986 SARA
amendments to CERCLA enforcement
provisions. This discussion states that
the SARA amendments added
provisions "intended to facilitate
responsible party financing of response
actions. CERCLA section 122, for
example, provides mechanisms by
which settlements between responsible
parties and EPA can be made, and
allows for 'mixed funding' of response
actions, with both EPA and responsible
parties contributing to response costs"
(53 FR 51395).
  Response to comments: One
commenter stated that EPA should
minimize Fund depletion through less
stringent cleanups at many sites in favor
of increased use of administrative
orders and penalties to force PRP
cleanup wherever viable PRPs are
located.
  Since the 1986 amendments were
passed, EPA has embarked on a course
that increasingly seeks PRP funding of
response actions and relies less on Fund
expenditures. In addition, EPA's
recently completed internal
management review of the Superfund
program ("A Management Review of the
Superfund Program," June 1989) ranked
the increased use of enforcement
capabilities to encourage PRP-funded
cleanups as one of EPA's highest
priorities. The comment above reflects a
need for clearer articulation of what is
already a well-established EPA policy to
emphasize enforcement.
  EPA will use the fact and threat of
enforcement, encompassing a broad
range of administrative and legal tools,
to increase the proportion of cleanups
undertaken by private parties.
  Final rule: There is no rule language
on this issue.
  Name: Special notice and moratoria.
  Proposed rule: There is a general
discussion of special notice in the
preamble to the proposed NCP and an
overview of the Superfund program and
response process (53 FR 51432).
  Response to comments: Several of
those who submitted comments believe
that the discussion of special notice and
moratoria in the preamble to the
proposed NCP provides a good
introduction to the Superfund program,
but asked for more specific language
articulating EPA's enforcement strategy
for the program clarifying a priority for
enforcement responses over Fund-
financed responses. One commenter
requested language stating that formal
negotiations are not the only vehicle for
reaching a settlement with PRPs, and
that informal negotiations can and do
extend beyond the 60-day formal
negotiation period if "sufficient progress
has been made."
  EPA believes that a clear articulation
of its goals for program enforcement is
necessary and appropriate, but that this
articulation belongs in the form of
guidance documents on general policy
goals and not as part of these
regulations. The preamble to the
proposed NCP discussion of § 300.430,
special notice and moratoria, already
articulates EPA's preference for
enforcement responses clearly: "A
fundamental goal of the CERCLA
enforcement program is to facilitate
settlements, i.e., agreements securing
voluntary performance or financing of
response actions by PRPs" (53 FR
51432). The discussion also recognizes
the important role of informal
negotiations:  " 'formal' negotiations
should not be viewed as the sole vehicle
for reaching settlement * * * *
[FJrequent interaction between EPA and
PRPs, through exchange and 'informal'
discussions may be appropriate outside
of the 'formal' special notice
moratorium" (53 FR 51432). The
discussion specifies that negotiations
can continue beyond the 60-day
negotiations period if EPA receives a
"good faith offer," a stipulation more
specific than the broader "sufficient
progress" language proposed by the
commenter and reflective of statutory
directives under section 122(e)(2)(b).
  Final rule: There is no rule language
on this issue.
  Name: Exemptions for federal
facilities.
  Proposed rule: Section 300.2 outlines
the statutory requirement for NCP
revision to reflect changes made to
CERCLA by the 1986 SARA
amendments. Section 300.3 describes the
NCP as applying to federal agencies and
states for responses governed under
CERCLA and in cases of oil discharges
and other hazardous releases. The
preamble to the proposed NCP describes
the applicability of the NCP to federal
facilities (53 FR 51395-96).
  Response to comments: One
commenter proposed that a general
 "grandfather" clause be added to the
 proposed NCP exempting federal
 agencies from complying with new NGP
 regulations for actions and studies on
 federal facilities already in progress and
 initiated under preexisting NCP
 regulations. A related comment asked
 that a grandfather clause exempt any
 party who has initiated response actions
 at a site under the provisions of the
 preexisting NCP. A commenter argued
 that any other policy would be
 "disruptive to environmental progress."
  EPA disagrees, and believes that the
 new NCP provisions should take effect
 30 days after promulgation,  as provided
 herein. The commenter's suggestion
 would result in a situation where
 response actions "initiated" before  this
 rule would be exempt. However, many
 response actions—especially
 remediation of contaminated ground
 water—can take years to complete; it
 would not be appropriate to exempt
 from this rule actions that will continue
 for long periods of time. EPA did
 consider the option of making the rule
 effective for those "phases" of response
 actions begun after the effective date;
 however, it is difficult to divide
 response actions into distinct phases,
 especially in the case of long-term
 remedial actions. On the general issue of
 whether the new requirements will  be
 burdensome, several points  are worth
 noting. First, EPA's stated policy has
 been to use the proposed NCP revisions
 as guidance, and in fact, EPA has done
 so; thus, the majority of provisions in
 today's rule are well known. Second, to
 a large degree, today's rule implements
 the SARA statutory requirements, which
 have been in effect since 1986; ongoing
 actions are already required to meet
 those requirements.
  With regard to the suggestion that
 generally applicable NCP requirements
 should apply to federal facilities on a
 different schedule than would apply to
 others, EPA notes that CERCLA section
 120(a) is very clear in prohibiting special
 treatment for federal facilities:
  All guidelines, rules, regulations, and
 criteria which are applicable to preliminary
 assessments * *  *, applicable to such
 facilities under the National Contingency
 Plan, applicable to inclusion on the National
 Priorities List, or applicable to remedial
 actions at such facilities shall also be
 applicable to facilities which are owned or
 operated by a department, agency, or
 instrumentality of the United States in the
 same manner and to the same extent as such
guidelines, rules, regulations, and criteria are
 applicable to other facilities (emphasis
 added).

 EPA will, however, after a notice  and
 comment rulemaking, issue a new

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            Federal Register  /  Vol. 55,  No. 46  /  Thursday, March 8, 1990  /  Rules and Regulations	111
subpart K to the NCP that will address
some of the special concerns of the
federal facilities, and problems unique
to federal facility cleanups.
  Final rule: See preamble section on
§ 300.3 for revisions to proposed rule.
  Name: Sections 300.420, 300.430 and
300.435. Early notification and
involvement.
  Proposed rule: Section 300.420
describes the methods, procedures and
criteria used during remedial site
evaluation. Section 300.430 describes the
specific tasks and activities of the RI/FS
process and selection of remedy,
including a preamble to the proposed
NCP discussion section on special notice
and moratoria pursuant to CERCLA
section 122(e) that describes how EPA
can issue special notice letters to PRPs
in pursuit of a settlement agreement.
Section 300.435 describes RD/RA
activities, including procedures for
public and PRP notification when
remedial actions differ significantly from
those outlined in the ROD.
  Response to comments: Several of
those who commented believe that the
NCP should explicitly identify
opportunities for early PRP notification
and involvement, and agreed that
notification should be made to all
parties as soon as practicable after site
discovery, both to facilitate settlements
and information gathering, and to help
EPA make an informed decision on
deferred listing. One suggested that the
proposed NCP state that EPA regional
staff should involve "willing" PRPs in
project scoping, resulting in less
remedial alternatives to evaluate. The
comment did not specify whether
"willing" referred to settling PRPs or
cooperative, nonsettling PRPs, or both.
The comment added a request to include
an overall site remediation management
plan as part of the RI/FS in the proposed
NCP. Another comment suggested that
introductions to all three sections at
issue above should state EPA's
commitment to issue general and special
notice letters to  known PRPs before
taking any action at the site. Finally, one
comment outlined a revised process to
better involve PRPs in remedial action:
PRPs should be notified of selection of
 an RI/FS contractor and be given copies
 (with an opportunity to comment) of
 project scoping and work plans,
 sampling plans and all sampling results
 as they become available, a list of
 ARARs, a list of potential alternatives
 for the FS, and copies of the risk
 assessment.
   Section 300.415(a)(2) adds language
 articulating EPA's commitment to
 contact known PRPs "to the extent
 practicable" in order to "determine
whether they can and will perform the
necessary removal action" (53 FR
51500). EPA believes that it must
preserve its discretion regarding timing
of PRP notification provided in the
statute to protect its enforcement and
response flexibility. The preamble to the
proposed NCP already reflects EPA's
commitment to early notification and
early PRP involvement at a site in the
discussion of § 300.430: "EPA believes
that settlements are most likely to occur
and will be most effective when EPA
interacts frequently and early in the
process with PRPs" (53 FR 51432).
Specific regulations would restrict EPA
discretion and the use of incentives in
enforcement activities to bring about a
settlement. Finally, the  statute already
provides PRPs with an opportunity for
further involvement in the RI/FS process
by entering into an agreement with EPA
and conducting the RI/FS and/or the
response action.
  Final rule: EPA is promulgating the
rule as proposed.

Subpart F—State Involvement in
Hazardous Substance Response
  Subpart F is completely new. It
combines concepts described in
separate sections in the existing NCP on
state role and involvement into one
subpart, which codifies all regulatory
requirements for state participation and
involvement in CERCLA-authorized
response actions. It also includes the
minimum requirements EPA will follow
to ensure that all states are provided an
opportunity for "substantial and
meaningful" involvement in the
initiation, development, and selection of
remedial actions as mandated by
CERCLA section 121(f)(l). Following are
summaries of major comments on the
proposed subpart F and EPA's
responses.
  Name: Section 300.5. Definitions of
cooperative agreement and Superfund
state contract.
  Proposed rule: The proposed NCP,
 § 300.5, includes definitions of two terms
not previously defined: Cooperative
agreement and Superfund state contract.
Cooperative agreement means a federal
 assistance agreement in which
 substantial federal involvement is
 anticipated during the project.
Superfund state contract means a joint
 agreement between EPA and a state that
 documents any required cost share and
 assurances necessary to conduct a
 response action.
   Response to comments: Some
 comments were received on the
 definition of cooperative agreement.
 One commenter argued that the
 definition should be revised to recognize
the availability of state cooperative
agreements under section 311 of the
Clean Water Act and the Coast Guard's
authority to enter into such agreements
under the Clean Water Act and
CERCLA section 104(d). Another
commenter stated that the recipient of a
cooperative agreement should already
have been determined to be qualified
and responsible to conduct the response
actions described in the cooperative
agreement without substantial EPA
involvement. "Substantial EPA
involvement" was also disputed by
another commenter who suggested that
cooperative agreement be defined as a
federal assistance agreement which
authorizes the performance of federal
duties and responsibilities within a
prescribed scope.
  Cooperative agreements under
CERCLA are subject to the Federal
Grant and Cooperative Agreement Act,
31 U.S.C. 6301-8, which defines
cooperative agreement as a legal
instrument in which substantial federal
involvement is anticipated. This
definition applies as well to CERCLA
cooperative agreements. Moreover, EPA
believes that there will be substantial
federal involvement or oversight under
most CERCLA cooperative agreements.
  In 1988, the Office of Management and
Budget revised Circular-A102 and
established a government-wide
"common rule" for all federal agencies
which prescribed the administrative
requirements for federal assistance to
states, local governments, and federally
recognized Indian tribes. EPA
implemented this common rule through
40 CFR part 31, which was developed at
the time the NCP was proposed. As a
supplement to 40 CFR part 31, EPA also
promulgated separate implementing
regulations for Superfund, 40 CFR part
35 subpart O, Cooperative Agreements
and Superfund state contracts for
Superfund Response Actions. Either a
cooperative agreement or a Superfund
state contract must be used to obtain the
necessary CERCLA section 104
assurances.
   The definitions of cooperative
agreement and Superfund state contract
in 40 CFR part 35 subpart O are
somewhat more detailed than the
definitions for the same terms in the
proposed NCP. The final NCP
incorporates the 40 CFR part 35 subpart
O definitions. The final NCP also cross-
references parts 31 and 35 subpart O
where appropriate. EPA acknowledges
the United States Coast Guard's
authority to enter into cooperative
 agreements under section 311 of the
Clean Water Act and that E.0.12580
provides the Coast Guard and other

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112	Federal Register  /  Vol. 55,  No. 46  / Thursday, March  8, 1990 / Rules  and Regulations
federal agencies with certain authorities
under CERCLA. However, EPA believes
that it is not appropriate to include this
in the definition of cooperative
agreement since the definition of this
term is already prescribed by the
Federal Grant and Cooperative
Agreement Act of 1977.
  Final rule: 1. Proposed definitions in
§ 300.5 are revised as follows:
  Cooperative agreement is a legal
instrument EPA uses to transfer money,
property, services, or anything of value to a
recipient to accomplish a public purpose in
which substantial EPA involvement is
anticipated during the performance of the
project.
  Superfund state contract means a joint,
legally binding agreement between EPA and
a state to obtain the necessary assurances
before a federal-lead remedial action can
begin at a site. In the case of a political
subdivision-lead remedial response, a three-
party Superfund state contract among EPA,
the state, and political subdivision thereof, is
required before a political subdivision takes
the lead for any phase of remedial response
to ensure state involvement pursuant to
section 121(0(1} of CERCLA. The Superfund
state contract may be amended to provide
the state's CERCLA section 104 assurances
before a political subdivision can take the
lead for remedial action.
  2. Cross-references to the relevant
portions of 40 CFR part 31 and part 35,
aubpart O, have been added to the NCP
in the following sections of subpart F:
300.500{b), 300.505(c), 300.510(a),
300.510(b)(2), 300.515(a), 300.515(g), and
300.525(a).

  Name: Section 300.500. General.
Section 300.505. EPA/state Superfund
memorandum of agreement (SMOA).
Section 300.515(h). Requirements for
state involvement in  absence of SMOA.
  Proposed rule: Proposed § 300.505
established general guidelines for
developing and implementing a SMOA
between EPA and a state (see preamble
discussion in 53 FR 51455). A SMOA is
an operating agreement that details how
EPA and a state shall conduct business
for remediating sites  within that state.
This section further described the ways
In which a SMOA can provide a
framework for the EPA/state
partnership and how a SMOA may be
used to establish the  nature and extent
of EPA/state interaction during
response activities, to define the roles
and responsibilities of each agency, and
to describe the general requirements for
EPA oversight.83 Proposed § 300.505(a)
  "The term "partnership" does not imply that
EPA «nd a state enter into a formal legal
partnership agreement.
also specified that a SMOA is not
required unless a state requests to be
designated as a lead agency for non-
Fund-financed response actions at NPL
sites, or to recommend a remedy for
EPA concurrence for Fund-financed
response actions. As proposed, the
regulation would have established a
SMOA as a prerequisite for both types
of state involvement.
  Section 300.515(h) described
categories of requirements for state
involvement in the absence of a SMOA,
or in the event that the SMOA did not
address all the major requirements for
state involvement in remedial and
enforcement responses. This section
required that, in the absence of a
SMOA, the support agency was
responsible for providing the lead
agency with potential ARARs and TBCs
by the time site characterization data
were available. The potential ARARs
shall be communicated in writing within
30 working days of the lead agency's
request. After the initial screening of
alternatives, and before comparative
analyses are  conducted, the support
agency has the opportunity to
communicate additional requirements
that are relevant and appropriate within
30 working days of receiving the
request. Finally, the lead and support
agencies shall remain in consultation so
that ARARs and TBCs are updated, as
necessary, until the ROD is signed.
  Response to comments: 1. SMOA as
prerequisite. Two commenters agreed
that a SMOA should be required if a
state requests to be designated as lead
agency for non-Fund-financed actions at
NPL sites or to recommend a remedy for
EPA concurrence for Fund-financed
actions. One  of these commenters stated
that, if EPA requires a state to sign a
SMOA for these purposes, EPA must
reach agreement with the state on the
SMOA within one year.  Other
commenters objected to linking the
ability of a state to recommend a
remedy for Fund-financed response to
the existence of a SMOA. One
commenter stated that delegation of
program components should not be
linked to the existence of a SMOA.
Several commenters expressed the view
that such requirements undermine the
goal of a true partnership between EPA
and the state. Commenters noted
several concerns regarding this subject.
  They argued that CERCLA section
121(f) mandates that EPA provide states
with meaningful and substantial
involvement in implementing Superfund.
Since the SMOA is a voluntary,
nonlegally binding document,
commenters asserted that the lack of a
SMOA should not prevent states from
participating meaningfully in the
program. Commenters further argued
that the existence of a SMOA will not
improve the ability of states to select
and recommend a remedy, particularly
for those states already assuming lead
roles. Degree of involvement should be a
function of interest and ability, not of
the existence of a SMOA at a particular
moment in time. One commenter
stressed that requiring a state to have a
SMOA in order to be a contributing
member in the Superfund program could
create a serious problem for a state,
particularly if the region declines  to
enter into a SMOA.
  Several commenters stressed that a
SMOA should not be a prerequisite for a
state to recommend a remedy for  EPA
concurrence at a Fund-financed site. In
such cases, a cooperative agreement
would already be in existence and
would address many of the issues
otherwise contained in a SMOA.
Furthermore, as lead agency, the .state
will have extensively analyzed the
response needs and will be well
qualified to select and recommend a
remedy.
  Many commenters mentioned that
EPA can accept, reject, or modify any
state recommendation for Fund-financed
actions. This final authority over the
state's remedy recommendation makes
having a SMOA as a prerequisite
unnecessary. Finally, several
commenters asserted that EPA's
decision to concur or not concur with
the state's recommended remedy  should
be based on whether the
recommendation is sound and satisfies
the nine remedy selection criteria, not
on the existence of a SMOA.
  Another concern expressed by
commenters regarding concurrence is
one of timing. Several commenters were
worried that the process of negotiating a
SMOA can take a significant amount of
time and could delay designation  of
sites for state-lead cleanup in the
meantime. States that have
demonstrated experience in Superfund
implementation should not be restricted
from recommending a remedy until
negotiations are completed and a  SMOA
is in place.
  Commenters generally did not agree
with requiring  a SMOA as a prerequisite
for state lead during non-Fund-financed
response actions at NPL sites for two
reasons. First,  commenters asserted that
lead agency designation should be
based on a state's ability to manage the
necessary response activities, not on the
existence of a SMOA. Second,
commenters stated that if the SMOA
was required for the state to be
designated the lead agency, some states
could be denied the opportunity to

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            Federal Register / Vol. 55, No. 46 / Thursday,  March 8, 199O /Rules and Regulations        113
assume the lead if regions declined to
enter into SMOAs. A few commenters
mentioned that so far it appears that
EPA has not placed a priority on
finalizing a SMOA even when the state
has initiated the drafting and
development process. A few
commenters were concerned that
imposing a prerequisite for non-Fund-
financed state leads may pose a
hardship for smaller states, which desire
only limited participation in lead
activities. The commenters point out
that a SMOA does not contain any
provisions that could not otherwise be
provided in a site-specific cooperative
agreement.
  EPA agrees with commenters  that the
SMOA should not be a prerequisite for
certain program activities,  and has
modified the final rule accordingly. EPA
will not require states to negotiate
SMOAs in order to recommend
remedies for EPA concurrence at Fund-
financed sites, or to be designated as
lead agencies for non-Fund-financed
actions at NPL sites. A SMOA is not the
appropriate mechanism to  designate
sites for which a state will recommend a
remedy. EPA and a state will agree in a
cooperative agreement that the state
may recommend a remedy at a site for
which the state has been designated as
the lead agency. EPA has decided to
remove the SMOA as a prerequisite for
these activities in order to  emphasize
the primary purpose of SMOAs  as
voluntary agreements through which
EPA and a state can agree on
communication and coordination
processes throughout the remedial
process. This approach will be more
conducive to expanding the EPA/state
partnership in the Superfund program.
EPA will enter into SMOA discussions if
requested by a state.
  EPA agrees that the absence of a
SMOA should not in itself limit the level
of participation by a state  in the
Superfund program, nor does the
existence of a SMOA improve the
ability of a state to participate more
fully in the program. A SMOA can,
however, act as an effective
management tool and lead to a more
effective EPA/state partnership through
better defining roles and distributing
responsibilities according  to each
' party's resources and experience. Thus,
SMOAs may contribute to more
consistent program implementation
nationwide, while providing EPA and
states flexibility in conducting certain
program activities. Lead designations for
both Fund-financed and non-Fund-
financed sites should be determined
based on interest, capability, and
 available resources.
  2. ARAB review times. Several
commenters supported the 30-day
deadline for support agencies to identify
ARARs, which applies to states without
a SMOA. In addition, a few commenters
stressed that timely ARAR identification
is important for sites in states with and
without a SMOA to achieve rapid
response actions, and suggested that
states with a SMOA also be subject to
the 30-day deadline. One commenter
specifically stated that review times set
forth in the proposed rule do not provide
a sufficient amount of time to identify
and communicate ARARs to the lead
agency. A minimum of 30 days  is
necessary to give support agencies the
opportunity to review the information
located in various documents
adequately.
  EPA agrees that timely ARAR
identification is important in expediting
response actions. The 30-working day
timeframe in § 300.515(h)(2) generally
will apply to all lead and support
agencies in the absence of a SMOA.
However, EPA believes it is also
important to allow EPA and states
flexibility to agree on site-specific
ARAR identification timeframes. A
SMOA may reference the language of
§ 300.515(h)(2), or specify a mutually
agreed upon alternative; however, to be
legally binding, any alternative
timeframes negotiated in a SMOA must
be documented in site-specific
agreements.
  3. Impact of SMOA on response
agreements. Several commenters
expressed concern that entering into a
SMOA could impact agreements already
hi place to which the state and/or EPA
is a party. In particular, this conflict
could raise issues of due process,
especially when existing agreements
involve potentially responsible parties.
To eliminate the possibility of this
problem, commenters recommended that
a provision be added to § 300.505 to
ensure that a SMOA will not impact
existing enforcement orders, consent
orders, or cooperative agreements. EPA
agrees with the commenters and will
revise the NGP accordingly. The SMOA
is a non-binding document, and
therefore cannot alter existing  legally
binding response agreements.
   4. Removal coordination and SMOAs.
See preamble discussion to § 300.415 on
state involvement in removal actions.
   Final rule: Proposed § 300.505 is
revised as follows:
   1. Language has been reordered and
modified to better describe the purpose
and contents of SMOAs.
   2. The final rule states in § 300.505(a)
that EPA shall enter into SMOA
discussions if requested by a state.
  3. Language in the proposed rule
making the SMOA a prerequisite in
order for a state to recommend a remedy
for EPA concurrence at a Fund-financed
site or  to be designated as the lead
agency at a non-Fund-financed NPL site
has been deleted.
  4. Proposed § 300.505(a)(4)(i)
(renumbered as final § 300.505(a)(3)) is
revised to state that review times
established in a SMOA must also be
documented in a site-specific
cooperative agreement or Superfund
state contract to be legally binding.
  5. Proposed § 300.505(a)(4)(ii)
(renumbered as final § 300.505(c}) has
been revised to state that site-specific
agreements entered into pursuant to
CERGLA section 104(d)(l) shall be
developed in accordance with 40 CFR
part 35 subpart O and that the SMOA
does not supersede any site-specific
legal agreements.
  6. A new § 300.505(d)(2)(viii) has been
included to add other CERCLA
implementation activity discussions to
the SMOA process.
  7. Language is added to § 300.515(d)(2)
stating that even though alternative
timeframes for ARAR identification may
be established in the SMOA, such
timeframes must also be documented in
a site-specific agreement to be binding.
  8. In final rule §§ 300'.5 (definition of
"SMOA"), 300.500(a), 300.505(a)(l), (a)(3)
and (d)(l), the word "removal" is being
added before the word "pre-remedial"
(see preamble discussion on § 300.415,
"State involvement in removal actions").
  9. Language on advisories, criteria or
guidance in § 300.505(d)(2)(iii) has been
modified (see preamble section on
TBCs).
  Name: Sections 300.510(c)(l) and (c)(2)
and (e). State assurances—operation
and maintenance and waste capacity. -
  Existing rule: 1985 NCP § 300.68(b)(2)
provided that states must have met the
requirements of CERCLA section
104(c)(3) prior to initiation of a Fund-
financed remedial action. CERCLA
section 104(c)(3)(A) required a state to
assure all future maintenance of the
remedial action for the expected life of
such action. CERCLA section
104(c)(3)(C) provided that the state
would pay or assure payment of 10
percent of the cost of the remedial
action, including all future maintenance.
   Proposed rule: Proposed
 § 300.510(c)(l) restated the requirements
of the  1985 NCP (53 FR 51455-56). It
indicated that, pursuant to CERCLA
section 104(c), the state must provide
assurance, prior to the remedial action,
that it will assume responsibility for
operation and maintenance (O&M) of

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114	Federal Register / Vol.  55, No. 46 / Thursday,  March 8, 1990 / Rules and Regulations
the implemented remedial action for the
expected life of such action. Proposed
§ 300.510{c)(2) stated that EPA may
share, for up to one year, in the cost of
operation of the remedial action to
ensure that the remedy is operational
and functional. Proposed § 300.435(f)
provided, pursuant to CERCLA section
104(c)(6), that EPA will fund for up to 10
years measures to restore ground or
surface water quality. Proposed
§ 300.510(e)  described requirements for
states providing a waste capacity
assurance.
  Response to comments: Several state
commenters argued that CERCLA
section 104(c)(3)(C) requires that 90 (or,
in some cases, 50) percent of the cost of
O&M will be federally funded. Some of
the commenters also cite CERCLA
section 104(c)(7), which refers to federal
funding of O&M pursuant to CERCLA
sections 104(c)(3)(i) and (6) and S. Rep.
No. 96-848 (1980). One commenter
claimed that requiring a state to fund
O&M costs entirely biases EPA's
selection process to favor remedies that
are less permanent and less effective, by
minimizing short-term expenditures at
the expense of greater state-funded
O&M. Another commented that states
have agreed to operation and
maintenance of remedies.
  EPA has followed a general policy of
requiring states to assure the payment of
operation and maintenance costs for
Fund-financed remedial actions.
Operation and maintenance costs are
generally identified in the ROD and
remedial design so that states have an
opportunity  to comment and recommend
revisions to  such costs. This policy is
consistent with section 104(c)(3) of
CERCLA, which provides that Fund-
financed response actions may not take
place until "the state assure[s] all future
maintenance of the removal and
remedial actions provided for the
expected life of such actions as
determined by the President * *  *."
EPA further believes that Congress has
implicitly accepted this policy by
providing in CERCLA section 104(c)(6)
that a certain class of activities, namely
those to operate and maintain treatment
and other measures necessary to restore
surface or ground water for up to 10
years, are remedial action and,
therefore, are subject to the general 90/
10 or 50/50 cost share requirements. The
statute goes on to provide that activities
to maintain the effectiveness of those
restoration measures, once protective
levels are achieved or up to 10 years,
whichever is earlier, are to be
considered O&M (for which the state
pays 100 percent under a long-standing
policy) (see preamble discussion on
§ 300.435(f)).
  CERCLA section 104(c)(3)(A) provides
that "the state will assure all future
maintenance of the removal and
remedial action provided [in section 104]
for the expected life of such actions as
determined by the President" (emphasis
added). EPA believes that this language
places this responsibility for the
operation and maintenance of response
actions—including the funding aspect—
on the states. Indeed, Congress
implicitly acknowledged this by carving
out only a limited exception from O&M
in CERCLA section 104(c)(6). As the
House Committee on Public Works and
Transportation noted in a discussion of
the precursor to section 104(c)(6),
"* * * ground or surface water cleanup
will be completed as part of the
remedial action, and not be left to
operation and maintenance activities
which must be funded by a state." H.
Rep. 253, 99th Cong. 1st Sess., part 5 at
10 (1985) (emphasis added). In addition,
although a bill to require EPA to pay a
cost share for O&M was considered
during the SARA reauthorization
process, it was not reported out of the
98th Congress. (See H. Rep. 890, 98th
Cong., 2nd Sess., part 1 at 4,445 (1984),
Report of the House Committee on
Energy and Commerce.)
  In addition, as noted under
§ 300.430(a)(l)(ii)(D), institutional
controls may be required to provide for
the protectiveness of human health and
such institutional controls have a valid
role in the remediation of a site when
active treatment of a site is not
practicable. Where institutional controls
are employed as part of a response
action, care must be taken to ensure that
such controls are reliable and will
remain in place. Therefore, when
appropriate, as part of the O&M
assurance required by CERCLA section
104(c)(3) and § 300.510(c) of this
regulation, the state must assure that
any institutional controls implemented
as part of a remedial action at a site are
in place, reliable, and will remain in
place after the initiation of O&M. The
final rule has been changed to reflect the
need to maintain institutional controls
when appropriate.
  Further, the experience of the
Superfund program has been that EPA's
selection process does not favor
remedies that are less permanent and
less effective, by minimizing short-term
expenditures at the expense of greater
state-funded O&M. On the contrary,
current data reveal that the trend has
been toward the use of more permanent
technologies. CERCLA section 121(b)(l)
requires that EPA select a remedial
action that is protective of human health
and the environment, is cost-effective,
and utilizes permanent technologies to
the maximum extent practicable. In
order to formulate a more consistent
approach in selecting remedies at sites,
nine selection criteria are used (see
§ 300.430). A remedy is not selected
based on cost share alone, rather the
selection of remedy process is based on
a balancing approach of the nine
criteria. In fact, EPA has modified the
proposed approach to encourage
selection of treatment alternatives by
emphasizing the criteria of long-term
effectiveness and permanence and
reduction of toxicity, mobility, or volume
through treatment in the final rule (see
§ 300.430(f)(l)(ii)(E)).
  In another change in this section, the
language in § 300.510(e) describing the
requirements for providing the waste
capacity assurance has been revised to
codify language from CERCLA section
104(c)(9) and to reflect the passage of
the October 17,1989 date for
applicability of this assurance under
CERCLA section 104(c)(9). EPA
generally will use the following to
determine the adequacy of the state's
assurance: (1) The plan submitted to
EPA documenting the waste capacity
availability, (2) the state's written
commitment to implement the plan, and
(3) the state's written commitment to
implement any additional measures EPA
deems necessary to provide for
adequate waste capacity (see Assurance
of Hazardous Waste Capacity
Guidance, OSWER Directive No. 9010.00
(December 1988) and OSWER Directive
No. 9010.00a (October 1989)).
  Final rule: 1. EPA has revised
§ 300.510(c)(l)  to state that any
institutional controls associated with
response actions are a part of the
required CERCLA section 104(c)
assurances.
  2. EPA has revised § 300.510(e) to
codify language in CERCLA section
104(c)(9) and to reflect the passage of
the October 17,1989 date for
applicability of the waste  capacity
assurance. Also, the rule notes that the
issue of whether or not Indian tribes are
states for purposes of CERCLA section
104(c)(9) has not yet been decided by
EPA.

  Name: Section 300.510(f). State
assurances—acquisition of real
property.
  Proposed rule: Section 300.510(f)
proposed that if an interest in real
property was to be acquired in order to
conduct a response action, as a general
rule, the state in which the property was
located must have agreed to acquire and

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            T?edera\ Register / Vol.  55, No. 46  /  Thursday, March  8, 1990 / Rules and Regulations         115
hold the necessary property interest. If it
was necessary for the United States to
acquire the interest in property to permit
implementation of the response, the
state must have agreed to accept
transfer of the acquired interest on or
before the completion of the response
action.
  Response to comments: Several
commenters contended that CERCLA
section 104(j)(2) provides that a state is
required to assure that it will accept
transfer of the interest following
completion of the remedial action. They
argue that states do not have to accept
title to property until the remedial
response is completed,  not earlier, and
that the determination of whether such
property must be acquired does not lie
solely with EPA, but must be made in
consultation with the affected state. The
commenters also object to the proposed
rule's application to "response actions"
instead of "remedial actions" as
provided by CERCLA section 104(j)(2)
because EPA does not have the
authority to force a state to accept title
to contaminated property after a
removal action. Some commenters
suggest that other mechanisms to
implement response actions, such as
voluntary consent, search warrants or
court orders, should be used to
implement response actions.
   EPA agrees that other mechanisms
such as voluntary consent, search
warrants, and court orders may be used
to implement response actions.
However, in some  circumstances it may
be necessary to acquire an interest in
real property for implementation of the
response action. As stated in the
proposed rule, the  state in which the
property is located must agree to
acquire and hold the necessary property
interest.
   If the state intends to acquire property
directly, but lacks  authority  to condemn
or otherwise acquire it or is unable to do
so in an expeditious manner, it may be
necessary for the United States to
acquire the interest in the property to
permit implementation of the response.
In such instances,  the state must accept
transfer of the acquired interest on or
before completion of the response
action. EPA would prefer that a state
accept transfer of the acquired interest
prior to completion of the response
action. Of course, the state may pass
title to its interest  to another entity such
as a political subdivision to  hold, as the
state deems appropriate. While
ownership of such interest would not
result in CERCLA liability pursuant to
CERCLA section 104(j)(3), EPA
understands that states are concerned
about common law liability  that could
result from ownership (e.g., arising from
injuries to persons coming on the
property) and that they would prefer not
to take title to such property until
completion of the response action. EPA
believes that it is not going beyond the
statutory language to require a state to
accept title "on or before" completion of
the response action; the section merely
gives the states the option to accept title
prior to completion of the response
action.
  Although Indian tribes are not
required to provide the CERCLA section
104(c) assurances, federally recognized
Indian tribes are not exempt from
providing the CERCLA section 104(j)
assurance. However, EPA will consider,
on a case-by-case basis, what
assurances are necessary where there
are legal barriers to a tribe's taking title
to property rather than having it held hi
trust for the tribe by the United States.
  Final rule: EPA is revising §  300.510(f)
to state that the state must also accept
transfer of any interest in acquired
property that is needed to ensure the
reliability of institutional controls
restricting use of that property (see
discussion above on § 300.510(c)(l)).
  Name: Section 300.515(a).
Requirements for state involvement in
remedial and enforcement response.
  Proposed rule: Proposed
§ 300.515(a)(l) stated that EPA would
designate a state agency as the lead
agency for a response action on the
basis of whether or not it had "the
capability to undertake such action."
Language in the preamble to the
proposed NCP (53 FR 51456) stated that
EPA was currently considering more
specific criteria, including: Overall
expertise, legal authorities,
administrative and contracting
capability, financial management
systems, site complexity, availability of
site-specific resources, past federal or
state actions at the  site, and past state
cleanup activities.
  Proposed § 300.515(a)(2) stated that
for EPA-lead Fund-financed remedial
planning activities,  the state agency
acceptance of the support agency role
during an EPA-lead response shall be
documented in a letter or a SMOA.
  Section 300.515(a)(3) proposed that
site-specific agreements were generally
unnecessary for non-Fund-financed
response actions unless a state intended
to later seek credit for its actions.
  Response to comments: 1. Section
300.515(a)(l). Commenters stated that
the criteria stated in the proposed
preamble should be revised to include:
Desire of the state to do the work,
minimum legal ability to issue and
enforce orders, a history of state
involvement with federal Superfund
activities in the state, and an ability to
demonstrate adequate resources,
including experienced personnel.
  Criteria for lead agency designation
were suggested by EPA in the preamble
to the proposed rule (53 CFR 51394) but
were not proposed as regulatory
requirements. EPA continues to believe
it appropriate to suggest, rather than
require, that these criteria, along with
the criteria suggested by the
commenters, be considered during EPA
and state discussions on designating a
lead agency. Since conditions may differ
among sites, EPA prefers to decide upon
lead agency status by entering into
separate discussions with the state for
each response. If the state is chosen as
the lead agency, 40 CFR part 35 subpart
O contains the appropriate regulations
regarding criteria for eligibility and
award of funding for state involvement
in Superfund response actions.
Therefore, criteria for designating a lead
agency have not been added to today's
rule. A cross-reference to subpart O has
been added in § 300.515(a).
  Another comment stated that
regulations governing Fund-financed
response actions are silent on whether
or not states are allowed to perform
enforcement response activities the
commenter contended were clearly
allowed under CERCLA section 104. The
comment proposed adding language to
§ 300.515(a)(2) clarifying that  states are
allowed to perform enforcement
response activities.
  EPA has modified § 300.515(e)(2)(i) to
explicitly acknowledge the authority of
states to conduct response actions at
NPL sites under state law. The language
specifies that a state will prepare the
ROD  (i.e., select the remedy), and may
seek EPA's concurrence for non-Fund-
financed state-lead enforcement actions.
Such actions are conducted under
authority  of state law, not CERCLA.
Additionally, revised  § 300.505(b)(2)(iv)
describes enforcement activities that
may be conducted by states.
  2. Section 300.515(a)(2). One
commenter stated that the NCP should
also permit support agency acceptance
to be documented through a cooperative
agreement. EPA agrees that state
acceptance of the support agency role
may also be documented in a
cooperative agreement. EPA allows
states to enter into support agency
cooperative agreements to defray the
cost of their participation in EPA-lead
response, pursuant to 40 CFR part 35
subpart O. The support agency
cooperative agreement is the most
appropriate place to document the

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116	Federal Register / Vol.  55, No. 46 / Thursday,  March 8, 1990 / Rules and Regulations
state's acceptance of the support agency
role.
  3. Section 300.515(a)(3). Since EPA has
decided to not require the signing of a
SMOA for specific state involvement
activities, e.g., recommending a remedy
to EPA, the language in this section
needs to clearly define when a
cooperative agreement may be signed.
In all cases, EPA may enter into a
cooperative agreement only at Fund-
financed sites unless a state intends to
seek credit pursuant to § 300.515. As
defined at 40  CFR part 35 subpart O,
cooperative agreements are intended to
implement CERCLA-funded response
and should not be used to aid cleanup at
non-Fund-financed sites.
  Final rule: 1. A statement has been
added at § 300.515(a)(l) to clarify that 40
CFR part 35 subpart O contains further
information regarding state involvement
in response.
  2. Section 300.515(a)(2) is revised to
state that the  state may document its
acceptance of the support agency role in
a letter, SMOA, or cooperative
agreement.
  3. Language in § 300.515(a](3) is
changed to clarify that cooperative
agreements and Superfund state
contracts are  only appropriate for non-
Fund-financed actions if a state intends
to seek credit under § 300.510.
  Name: Section 300.515(b). Indian tribe
involvement during response.
  Proposed rule: EPA proposed to
provide for interaction with federally
recognized Indian tribes whenever a
CERCLA site  was within Indian
jurisdiction. As stated in proposed
§ 300.515(b), federally recognized Indian
tribes generally may have the same
roles and responsibilities under the NCP
as do states. Indian tribes may be
authorized to take the lead role for
Fund-financed response activities
through a cooperative agreement based
on the following criteria: [1] The Indian
tribe is federally recognized; (2) the tribe
currently performs governmental
functions to promote the health, safety,
and welfare of its population or
environment;  (3) the tribe demonstrates
the ability to  cany out the necessary
response actions according to the
priorities and criteria established by the
NCP; (4) the tribe can demonstrate that
the necessary actions are within the
scope of its jurisdiction; and (5) the tribe
can demonstrate a reasonable ability to
effectively administer a cooperative
agreement.
  Response to comments: Several
commenters expressed concern that the
criteria used to judge states' ability to be
a lead  agency seem to be different from
the criteria used to judge the ability of
Indian tribes to fulfill the same role. The
requirement that tribes establish
jurisdictional authority is not required of
states, and has not been consistently
applied to states hi the past. Several
commenters asserted that this is
"blatant discrimination" and
undermines EPA's efforts to work
effectively with Indian tribes. Many
commenters requested that EPA address
the apparent disparity between criteria
applied to states and Indian tribes.
  A few commenters were also
concerned about the criteria requiring
Indian tribes to be federally recognized
in order to undertake the lead role and
identified a need to clarify which agency
has the authority to govern cleanup
activities at sites within the jurisdiction
of an Indian tribe that is not federally
recognized. Similarly, commenters were
concerned about how EPA expects to
resolve hazardous substance releases
from sites on Indian land when the
release extends beyond the boundary of
the reservation. One commenter
requested clarification about whether
EPA will allow a state agency to work
with these tribal councils under two-
party agreements.
  In response, EPA proposed criteria in
§ 300.515(b) for evaluating whether
Indian tribes had the capability to take
the lead for Fund-financed response
activities through a cooperative
agreement. After reconsidering the
criteria based on public comment, EPA
believes that a distinction should be
made in the final rule between criteria
for Indian tribes to be  treated
substantially the same as states and for
the eligibility of Indian tribal
governments to receive funding, which
is described hi 40 CFR part 35 subpart
O, for involvement through a Superfund
cooperative agreement.
  For an Indian tribe to assume the
same responsibility as a state in
Superfund response actions, the Indian
tribe must be federally recognized and
must currently perform governmental
functions to promote the health, safety,
and welfare of its population or
environment. In addition, the tribe must
have jurisdiction over the site at which
response is contemplated, including pre-
remedial activities. A similar
jurisdictional requirement was not
considered to be necessary for states
whose jurisdiction clearly covers the
entire state. However, the extent of
Indian tribal jurisdiction may be less
clear. A determination of whether a
tribe has  jurisdiction over a site should
be made by EPA based on
documentation submitted by the
governing body of an Indian tribe.
However, by making a determination
that an Indian tribal government has
jurisdiction for purpose of CERCLA
response, EPA is not making a
determination regarding jurisdiction for
any other purpose.
  When a hazardous substance release
affects lands both within and beyond
the boundaries of lands within the
jurisdiction of an Indian tribal
government, state participation is
necessary. EPA will encourage
coordination between states and Indian
tribes when releases originate in the
jurisdiction of one and affect the other.
There is nothing to prohibit the tribe and
state from entering into a two-party
agreement to identify roles and
responsibilities. The region will evaluate
requests for lead agency designation to
undertake response at such sites on a
case-by-case basis in consultation with
the affected governing body of the tribe
and state. Federal-lead may be
appropriate in such situations. A three-
party Memorandum of Understanding
(MOU) among EPA, the state, and
governing body of the Indian tribe is
recommended to define and coordinate
roles, and ensure compliance with the
requirements  of section 121 of CERCLA
for response activities prior to remedial
action.
  A federally recognized Indian tribe
can apply for Fund monies through a
Superfund cooperative agreement to
defray the cost of its participation as a
lead or support agency (the eligibility
criteria to receive funding under a
cooperative agreement are discussed at
40 CFR part 35 subpart O).
  Final rule: The criteria in § 300.515(b)
are modified and renumbered to enable
an Indian tribe to assume the same
responsibility as a state in Superfund
response actions, if the tribe is federally
recognized and currently performs .
qovernmental functions to promote the
health, safety, and welfare of its
population or environment. The tribe
must also have jurisdiction over the site
at which response is contemplated.
  Name: Sections 300.425(e)(2), 300.515
(c)(2) and (c)(3). State involvement in
PA/SI and NPL process. Section
300.515(h)(3). State review of EPA-lead
documents.
  Proposed rule: Proposed •
§ 300.515(c)[2) provided that states have
a minimum of 20 calendar days and a
maximum of 30 calendar days to review
releases to be proposed to be listed on
the NPL. Sections 300.425(e)(2) and
300.515(c)(3) provided the same
minimum/maximum timrframes for
states to review notices of intent to
delete releases from the NPL. Section
300.515(h)(3) provided, in the absence  of
a SMOA, that states have a minimum  of

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            Federal Register  / Vol.  55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations        117
10 working days and a maximum of 15
working days to provide comments on
EPA-prepared RI/FSs, RODs, ARAR/
TBC determinations, and RDs. States
were provided a minimum of 5 working
days and a maximum of 10 working
days to comment on the proposed plan
(see preamble to proposed rule at 53 FR
51456-57).
  Response to comments: Several
commenters disagreed with the
minimum/maximum timeframes for
review of EPA-lead documents. One
stated that some of these documents,
such as the RI/FS and ROD, are
incredibly long and complex and such
deadlines would be impossible to meet.
The commenter argued that more time
for review and comment must be
provided but did not specify minimum/
maximum timeframes. Another
commenter argued that because
reviewing state agencies generally have
to coordinate with other state agencies,
the  timeframe for state review of EPA-
lead documents should be 25 to 30
working days for RI/FSs, RODs, and
ARAR/TBC determinations. One
commenter stated that the proposed five
to 10 day timeframe for review of a
proposed plan is too tight and that 10 to
15 days would be more realistic.
Another commenter stated that a
minimum of 20 working days should be
provided for state review of NPL listings
and deletions, ARAR/TBC
determinations, RODs, and RDs. The
commenter also recommended a
minimum of 30 working days on the final
RI/FS and proposed plan. The
commenter further suggested that all
review times be expressed in terms of
working and not calendar days.
  Other commenters stated that EPA
should be held to the same review times
as states, and that EPA regions should
be authorized to approve and extend the
state review period without regulatory
limitations. One comment stated that
EPA should be bound by the same
requirements for response and
concurrence at state-lead sites as states
are at EPA-lead sites. The commenter
added that the rule should be revised so
that if EPA fails to meet its deadline for
comment, this will be considered a
concurrence.
  Further, several commenters made
suggestions specifically regarding the
procedures for state review of HRS
packages. Two commenters stated  that
states should be given the opportunity to
comment on and review sites before the
listing decision has been made. Another
commenter contended that 20 days is
not sufficient time to review sites and
that the minimum period for review
should be extended to 30 days.
  EPA accepts the recommendation that
it be held to the same review times as
states when it reviews state-lead
documents. EPA believes that such
review times should be the same for
each phase of response regardless of
lead agency designation. However,
failure of either the state or EPA to
respond shall not be construed as
concurrence. While EPA intends to
make all efforts necessary to meet
agreed-upon deadlines, if EPA does not
act within specified timeframes, it
should not be interpreted as EPA's
approval of an action.
  With regard to the comments that the
review times should be revised, EPA has
decided not to revise the number of days
specified in § 300.515{h)(3) of the NCP
for review of lead agency prepared
documents by the support agency; such
review times can be modified by a
SMOA and made legally binding in a
site-specific agreement, such as a
cooperative agreement or Superfund
state contract (the SMOA cannot be
used to alter review times on a site-
specific basis). If a different timeframe
agreement is not agreed to in the site-
specific agreement, EPA and the state
will be required to meet the deadlines
stated in the NCP. EPA also has decided
to use working days for all review time
periods and has changed the rule
accordingly.
  With regard to the pre-remedial
process, states already are active
partners, and indeed, it is often the state
environmental agency that performs the
PA/SI. Even when the state does not
perform a PA/SI, it often provides
essential information concerning a
release to EPA. Thus, states generally do
provide input on potential NPL sites
before the listing decision has been
made. However, EPA is willing to work
with states to develop procedures for
receiving more input on the listing
decision itself. EPA believes that two
considerations must be kept in mind.
First, it may not be appropriate to
provide draft HRS packages to those
states that would be required by their
state law to release such documents to
the public upon request. EPA considers
these documents predecisional, and
does not release them to the public
during the rulemaking process. Second,
EPA believes that state review of NPL
sites should come toward the beginning,
rather than the end, of the HRS process;
in this way, new information provided
by states could be incorporated without
delaying a proposed NPL update.
  In the deletion process, where state
concurrence on notices of intent to
delete are required, EPA is revising the
duration of review in §§ 300.435(e)(2)
and 300.515(c)(3) to 30 working days.
  Final rule: Proposed §§ 300.425(e)(2),
300.515 (c) and (h) are revised as
follows:
  1. EPA is changing the language in
§§ 300.425(e)(2), 300.515(c) (2) and (3)
regarding the time limit for review of
releases considered for listing on the
NPL and for review of notices of intent
to delete releases from the NPL. The
timeframe is changed from a minimum
of 20 and a maximum of 30 calendar
days to 30 working days. The language
also notes that this  timeframe will be
followed to the extent feasible.
  2. Section 300.515(h)(3) is renamed to
refer to "support agency" and "lead
agency" and revised to read that the
lead agency shall provide the support
agency an opportunity to review and
comment on the RI/FS, proposed plan,
ROD, RD, and any proposed
determinations on potential ARARs and
TBCs. The support agency shall have a
minimum of 10 working days and a
maximum of 15 working days to provide
comments to the lead agency on the RI/
FS, ROD, ARAR/TBC determinations,
and RD. The support agency shall have
a minimum of five working days and a
maximum of 10 working days to
comment on the proposed plan.
  Name: Sections 300.505 and
300.515(d). Resolution of disputes.
  Proposed rule: The preamble to
proposed subpart F stated that a region
and a state may adopt a dispute
resolution process to be used to resolve
any differences that might impede the
response process (53 FR 51457).
Differences should be addressed at the
staff level first and raised to
management if a mutually acceptable
solution is not attained. The  preamble
further stated that a region and a state
could jointly raise the dispute to the
Assistant Administrator for Solid Waste
and Emergency Response for a final
determination. Alternatively, a region
and a state may establish a different
dispute resolution process in a SMOA.
  Proposed § 300.515(d) stated that if
EPA intended to waive any state-
identified ARARs or did not  agree with
the state that a certain state  standard
was an ARAR, EPA shall formally notify
the state when it submitted the RI/FS
report for state review or responded to
the state's submission of the RI/FS
report. The preamble also stated that
EPA, operating in its oversight role for
CERCLA enforcement actions, would
resolve ARARs disputes between the
lead agency and PRPs.
  Response to comments: Commenters
expressed dissatisfaction with the role

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118	Federal Register / Vol. 55,  No. 46 /  Thursday,  March 8,  1990 / Rules  and Regulations
of EPA as the final judge in ARAR
disputes. One commenter suggested the
use of an "alternate dispute resolution"
process, with a third party offering a
non-binding opinion. Another
commenter proposed the incorporation
of a state/EPA dispute resolution into a
SMOA to be binding on both parties.
  In response, EPA believes that its
responsibility to ensure that remedies
conform to  the mandates of CERCLA
justify EPA's role in resolving ARARs
disputes. ARARs determinations are a
significant component of selecting such
remedies. Moreover, ARARs
determinations may directly affect the
cost of a remedy and EPA is required by
CERCLA to ensure consistent use of
Fund monies. EPA concludes, therefore,
that it is necessary and appropriate that
EPA, rather than a third party, will
resolve ARARs disputes.
  EPA encourages, but does not require,
inclusion of dispute resolution clauses in
their SMOAs. Any resolution process
should encourage  timely resolution of
disputes which could impede the
response process. EPA is currently
developing guidance on dispute
resolution procedures.
  One commenter favored the resolution
of all disagreements with states
regarding ARARs waivers before the RI/
FS report is completed and before the
proposed plan is made available to the
public. EPA believes, as a policy matter,
this is an appropriate suggestion and
will, to the  extent practicable,  attempt to
resolve all ARARs disputes before the
proposed plan is issued to the  public.
Because some ARARs may still be
unknown at the time of the RI/FS, it may
not be possible to resolve all ARARs
disputes by this time.
  Another commenter recommended the
inclusion of PRPs  into the dispute
resolution process when a PRP disagrees
with EPA's assessment of a site's
ARARs. This commenter suggested an
informal meeting between PRPs and the
EPA Regional Administrator to discuss
disagreements, followed by a written
decision by the appropriate Regional
Administrator. EPA believes that this is
not necessary because PRPs have the
opportunity to express disagreement
over ARARs decisions in their
comments on the proposed plan.
Further, if the PRP conducts an RI/FS
pursuant to a consent order or decree,
procedures for resolving ARARs
disputes  are usually contained in such
orders or decrees.
  Final rule: EPA is promulgating the
rule as proposed except that the
language on advisories, criteria or
guidance in §§ 300.515(d), (d)(l) and (2)
and 300.515(h)(2) has been modified (see
preamble section  on TBCs above).
  Name: Section 300.515(e)(l) and (2).
State involvement in selection of
remedy.
  Proposed rule: Proposed § 300.515(e)
discussed the roles of EPA and the state
in the selection of remedy process. It
reflected the evolution of the EPA/state
partnership in recent years by providing
the state, when it was the lead agency,
with responsibilities in the selection of
remedy process. This new concept
would be applicable to both Fund-
financed and non-Fund-financed actions
in which the state as lead agency would
recommend the remedy and provide
EPA an opportunity to concur with and
adopt the remedy. This
recommendation/concurrence approach
was in keeping with the statutory
requirement  to provide substantial and
meaningful involvement in the initiation,
development, and selection of remedial
actions (see preamble to proposed NCP
at 53 FR 51456-59).
  Specifically, § 300.515(e)(l) described
how EPA and the state will interact
during the development and
concurrence of the proposed plan. The
lead agency  shall prepare a proposed
plan upon conclusion of the RI/FS. Once
completed the support agency shall be
given an opportunity to comment and
concur; however, if agreement cannot be
reached the proposed plan shall be
published with a statement explaining
the support agency's concerns regarding
the plan.
  Section 300.515(e)(2) provided further
information regarding EPA and state
involvement in the preparation of a
ROD. For all EPA-lead sites, EPA shall
prepare the ROD and provide the state
an opportunity to concur with the
recommended remedy. For Fund-
financed state-lead sites, EPA and the
state shall designate sites for which the
state shall prepare the ROD and seek
EPA's concurrence and adoption of the
remedy specified therein and sites for
which EPA shall prepare the ROD and
seek the state's concurrence. For non-
Fund-financed state-lead enforcement
response actions taken at NPL sites,
EPA and the state may designate sites
for which the state shall prepare the
ROD and seek EPA's concurrence in and
adoption of the remedy specified
therein.24 Either EPA or the state may
choose not to designate a site as state-
lead.
  Response  to comments: 1. Review and
publication of proposed plan. In cases
  24 Non-Fund-financed state-lead response action
means that a state is responding to a release
pursuant to state law, not CERCLA. CERCLA
enforcement functions may not be delegated to
states, except as specifically authorized under
CERCLA.
where the state has the lead, one
commenter questioned whether the state
should be allowed to publish a proposed
plan without EPA's prior approval.
  EPA agrees that in Fund-financed
state-lead remedial response, EPA shall
always be given the opportunity to
review the proposed plan before it is
published. Whenever possible EPA and
the state shall try to come to agreement;
however, if no concurrence can be
reached, the state shall not publish the
plan and EPA may assume  the lead for
completing the proposed plan and ROD.
At non-Fund-financed state-lead sites,
the state may publish the proposed plan
without EPA's approval; however, EPA
still retains the right to proceed under its
own CERCLA authorities if necessary to
ensure compliance with section 121 and
other pertinent provisions of CERCLA. If
the site is EPA-lead or EPA resumes the
lead from the state, the EPA may
publish the proposed plan without state
approval; however, as discussed below
the state must still provide  its CERCLA
104(c) assurances before remedial action
can begin. As presented in  the proposed
and final regulation, when agreement
cannot be reached the lead agency shall
include a statement describing the
support agency's concerns with the
proposed plan.
  2. Development and selection of the
ROD. Many commenters strongly
supported concurrence by the support
agency for remedies recommended by
the lead agency, regardless of whether
the state or EPA has the lead. Several
commenters strongly supported this
concurrence as an important sign of
progress toward smoothing the
relationship between EPA and the states
by placing them on more equal ground.
These commenters stressed that
concurrence indicates that  EPA
understands that the state is the
ultimate caretaker of Superfund sites,
and, therefore, must have a strong voice
in what happens at a site. Several
commenters emphasized that
concurrence should be based on the
principle that the lead agency is just that
and support agency oversight should be
minimized. Most commenters stressed
that this is the best process to maximize
the use of limited government resources
and facilitate the timely cleanup of
Superfund sites.
  A few commenters emphasized the
distinction between giving  the state the
"opportunity to concur" and having
concurrence as a prerequisite in various
stages of EPA-lead actions. One
commenter gave the example that state
concurrence is not a prerequisite in the
issuance of a ROD by EPA. However,
EPA's concurrence is required in the

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                                                                        119
issuance of a ROD for state-lead Fund-
financed actions. One commenter stated
that "concurrence," as set forth in
§ 300.515(e), was contrary to the
meaning of the word. The commenter
noted that if the state does not concur
with the remedy, EPA should not go
forward with it.'
  EPA's intention in this section of the
proposed rule on concurrence was to
stress the opportunity for dialogue
between EPA and the state in the
remedy selection process. Although, as a
matter of policy, EPA retains
responsibility for selecting the remedy,
it is important for both parties to concur
in the selected remedy, whenever
possible, to avoid problems during
implementation of the remedy.
  EPA has decided not to revise the
requirement that EPA's concurrence is
required before a state may proceed
with a Fund-financed response action.
However, this does not prevent a state
from attempting to proceed with the
response action using their own funds or
enforcement authorities, except as
limited by CERCLA section 122(e)(6). If
a state decides to pursue this avenue,  it
may not claim credit pursuant to
§ 300.510(b)(2) for remedial action
expenses since EPA never concurred
with the selected remedy, and the state
action may be subject to possible
preemption under CERCLA section
122(e)(6) if the state uses its own
enforcement authorities to implement
such action. EPA will not be bound by a
state action or any EPA/state agreed-
upon action since new information may
arise and create the need for additional
response at the site in order for the
remedy to protect human health and the
environment.
  Regardless of whether concurrence
was obtained on the selected remedy at
this stage in the response process, both
EPA and the state have another
opportunity available to them to express
disapproval of the selected remedy. The
state's CERCLA section 104 assurances
are required prior to the implementation
of remedial action conducted under
section 104 of CERCLA. If the state, at
this time, still disagrees with the
selected remedy, it may demonstrate
nonconcurrence with the remedy by
withholding its assurances. Likewise, if
EPA disagrees with the selected remedy,
EPA may withhold Fund money for
implementation of the remedial action or
section 122(e) approval for a PRP
remedial action. For state-lead sites, if
no agreement can be reached, the state
has the option of attempting to proceed
with implementation of the remedy
using its own funds, although EPA is not
bound by that action. EPA may not
proceed with a Fund-financed action
without the state's assurances.
  Some comments received regarding
the criteria for lead agency designation
(53 FR 51456) also identified the need to
address the criteria used to designate
the lead in the preparation of the ROD
since the determination of whether the
state has the capability to prepare the
ROD is closely linked to this issue. As
discussed earlier, EPA is not
incorporating in today's rule any criteria
for lead agency designation. Instead a
decision regarding preparation of the
ROD shall be made in consultation with
EPA and the state on a case-by-case
basis. All agreements and decisions
shall be documented in a site-specific
agreement and not in a SMOA.
  Final rule: Proposed § 300.515(e) is
revised as follows:
  1. Language is added in final
§ 300.515(e)(l) to clarify that the state
may not publish a proposed plan which
EPA has not approved. In such event,
EPA may assume the lead from the state
at Fund-financed sites if EPA and the
state cannot agree on a proposed plan.
  2. EPA is adding a clause in
§ 300.515(e)(2)(i) to designate the site-
specific agreement as the proper place
to identify whether EPA or the state
shall prepare the ROD at Fund-financed
state-lead sites.
  3. EPA clarifies in § 300.515(e)[2) that
EPA must concur in writing with a state-
prepared ROD in order for EPA to be
deemed to have approved the state's
decision.
  Name: Whether states should be
authorized to select the remedy at NPL
sites.
  Proposed rule: Although the preamble
to the proposed revised NCP did not
solicit comments on the appropriateness
of authorizing states to select remedies
at NPL sites, many commenters
submitted comments calling for EPA to
authorize states to select remedies at
NPL sites, going further than the
proposed concurrence concept.
  Response to Comments: Comments
were received from states or state
organizations on this topic. Many
commenters believed that CERCLA
section 104(d)(l)  currently allows EPA to
authorize states to select the remedy at
NPL sites. One commenter argued that
the NCP should spell out procedures and
criteria used to authorize states to select
a remedy under existing CERCLA
section 104(d)(l). Another commenter
stated that unless states are provided
the authority and responsibility to select
remedies at NPL sites,  states believe
that  their time and effort is better spent
working on non-NPL sites where they
are not duplicating effort with EPA.
States would be more reluctant to
request lead agency designation at an
NPL site.
  One commenter contended that
authorizing states to select remedies is
consistent with CERCLA section
104(d](l). If, however, EPA will not
completely authorize states to select
remedies, this commenter recommended
granting authority to states for sites
where remedial actions will cost up to
$10 million.
  Another commenter stated that the
agency making a remedy
recommendation or actually selecting
the remedy should be a function of
which agency conducted the RI/FS at
the site.
  In response, EPA acknowledges that
several states have their own
"superfund" programs and is
encouraged by their willingness to take
on an even greater role in cleaning up
sites. EPA believes, however, that it is
not appropriate at this time to turn over
the final decision-making authority on
remedy selection to states. While
Congress appeared to contemplate an
increased role for states in the remedial
process through enactment of CERCLA
section 121(f), EPA believes that it
should retain primary responsibility for
the federal Superfund program. EPA
intends, however, that the concurrence
process provide a significant and
meaningful role for state involvement in
the cleanup process. EPA believes that if
the state is the lead agency for the RI/
FS, it generally should recommend a
remedy for EPA's adoption. Further,
keeping the final responsibility for
remedy selection within EPA (rather
than dividing it among the 50 states and
EPA] furthers the goal of ensuring
consistency among remedies
implemented at sites.
  EPA notes, however, that for non-
.Fund-financed state-lead enforcement
sites, the state may select the remedy
(§ 300.515(e)(2)(ii)), although EPA shall
not be deemed to have approved of the
remedy absent formal concurrence. In
such cases, the state is proceeding under
the authority of state law and could take
a similar action whether or not the site
was the subject of CERCLA action.
  Final rule: There is no rule language
on this issue.
  Name: Section 300.515(f).
Enhancement of remedy.
  Proposed rule: Section 300.515(f)
provided that if a state determined that
a proposed Fund-financed remedial
action should comply with substantive
state standards that EPA has
determined are not ARARs, or with
state ARARs which EPA has determined

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120	Federal Register / Vol.  55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
to waive pursuant to CERCLA section
121(d)(4), the state shall fund the entire
additional cost associated with
compliance with such ARARs. The state
may be required to continue the lead for
the RD/RA or for the additional
requirements if it is a state-lead Fund-
financed project or to assume the lead
for remedial design and construction, or
for the additional requirements only, if
the project is federal-lead.
  The proposed rule further provided
that if a state determines that a Fund-
financed remedial action should exceed
the scope of the selected remedy, i.e., an
enhancement of the selected remedy, the
state shall fund the entire additional
cost associated with such enhancement.
The state may be required to assume the
lead for the remedial design and
construction of the remedy or only for
the state-funded enhancement if that
enhancement can be conducted as a
separate phase or activity.
  The proposed rule also reflected
CERCLA section 121(f)(2) which
provides that if a state determines that a
remedial action under sections 106 and
122 of CERCLA should attain state
requirements that EPA and a federal
district court have determined need not
be met in accordance with criteria in
CERCLA section 121(d)(4), the state
shall fund, and may be required to
undertake, the additional work.
  Response to comments: Several
commenters questioned the authority of
EPA to require states to pay for
enhancements or to assume the lead in
cleanups when state ARARs are waived
or stale standards are deemed not to be
ARARs. Commenters argued that EPA
has no authority under  CERCLA to
impose these requirements on states,
even if a state rejects the EPA-selected
remedy in favor of a more extensive
cleanup.
  In response, as a threshold matter, no
state is "required" to seek an
enhancement of a remedy selected
under CERCLA. The issue is, where a
state wishes to enhance or supplement
an EPA-selected remedy, under what
circumstances may it do so, and who
should pay for and supervise the
supplemental action. The answers to
these questions are complicated, and
require a thorough discussion of the
situations in which enhancements may
be appropriate, and EPA's view on state
and federal responsibilities for
enhancements.
  It is  important to note at the outset
that states already have significant
opportunities during the RI/FS process
leading up to remedy selection to
suggest to EPA that a proposed remedy
should attain certain standards, or that
the proposed remedy should be
expanded in scope. As explained earlier
in this preamble, the states may either
act as the lead or support agency for
Fund-financed actions (§ 300.500(b)),
and have a clear opportunity to identify
their potential ARARs—i.e.,
promulgated state requirements that are
more stringent than federal
requirements (§ 300.400(g)(4))—early in
the process (§ 300.400(g)(l) and (5)). The
lead agency will then seek agreement
from the support agency on a proposed
ROD; certain requirements will then be
found to be ARARs, and others may be
found not to be ARARs, or to be
appropriate for waiver under one of the
limited waiver categories set out in
§ 300.430(f)(l)(ii)(C). The proposed plan
will then be issued for public comment,
and after consideration of state and
public comments, EPA will select the
final remedy.
  Through this process, EPA hopes to
reach agreement with the affected state
both on the appropriate scope of the
selected remedy, and on those state law
standards that should be met. EPA has
specifically discussed in this rule a
procedure for dispute resolution with the
states in order to foster agreement on
ARARs (§ 300.525(d)(3) and (4)). Thus,
EPA contemplates that in many cases,
state ARARs issues, and extent of
remedy issues generally, will be
resolved during the remedial evaluation
and selection process outlined in the
NCP. Where such requirements do
become part of the EPA-selected
remedy, they would be paid for
according to the appropriate cost share
in CERCLA section 104 (for Fund-
financed actions).25
  Even after the ROD has been signed,
the state may ask EPA to make changes
in the selected remedy, or to expand the
scope of the remedy. If EPA agrees that
the state's suggestions are appropriate
and necessary to protect human health
and the environment, EPA may include
the changes in the selected remedy
through a ROD amendment or
explanation of significant differences
(consistent with final rule
§ 300.435(c)(2)); in the case of a Fund-
financed remedy, EPA would share in
the costs of the modified or additional
activity. If EPA concludes that the state-
suggested changes or expansions are not
  25 Where EPA and the state disagree on a remedy
selection, a state has the option of withholding its
state assurances, thereby preventing the remedy
from proceeding as a Fund-financed action
(although EPA could initiate an enforcement action),
and for EPA enforcement actions, a process is
available for states to challenge a decision by EPA
to waive an ARAR (CERCLA section 121(f)(2)(B)).
These are, however, extreme measures, and EPA's
goal is to reach agreement with states through the
normal remedy selection process.
necessary to the selected remedial
action, then EPA will not modify the
ROD or pay for (or order) the additional
action; however, EPA may still decide to
allow the additional action to proceed
concurrent with the EPA-selected
remedy.
  Where EPA finds that the proposed
change26 or expansion is not necessary
to the EPA-selected remedy, but would
not conflict or be inconsistent with it,
EPA may agree to integrate the
proposed change or expansion into the
planned CERCLA remedial work, but
only if the state agrees to fund all
necessary changes or additions, and to
assume the lead for supervising the
state-funded component of the remedy
(or, if EPA determines that the state-
funded component cannot be conducted
as a separate phase or activity, for the
remedial design and construction of the
entire remedy).27  Although one
commenter questioned the propriety of
having the state pay for such changes,
EPA believes that it is both reasonable
and appropriate for the states to pay for
and supervise tasks that they have
requested and that EPA has not selected
as part of its remedy. Placing these
responsibilities on states is also
consistent with the approach set out by
Congress in CERCLA section
121(f)(2)(B), when a state seeks to
implement an ARAR that has been
waived by EPA.
  For example, the state may want the
cleanup of ground water to attain water
quality levels beyond those required
under CERCLA, and thus may wish to
maintain a pump-and-treat system
longer than deemed necessary in the
ROD. Similarly, the state may request
additional work that falls outside the
scope of the design and construction at
the site, such as the extension of a water
line outside the Superfund site. Such
changes or expansions that would not
conflict or be inconsistent with the EPA-
selected remedy would generally be
accommodated, on the condition that
the state fund and supervise the change
or expansion. (EPA would provide
notice to the public where such
accommodations  affect the selected
remedy.)
  However, in cases where EPA
concludes that a state-proposed change
or expansion would conflict or be
inconsistent with the EPA-selected
  26 These proposed "changes" could include the
 attainment of a particular state standard that EPA
 found not to be an ARAR, or waived.
  27 Often the state is the most appropriate entity to
 take the lead for such combinations of Fund-
 financed and non-Fund-financed actions because of
 contracting issues.

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             Federal Register / Vol.  55,  No. 46  /  Thursday, March 8,  1990 / Rules and Regulations
                                                                          121
 remedy, the suggested change should
 not go forward.
   EPA does not believe it would be
 appropriate to allow the state to proceed
 with proposed changes to EPA's
 lawfully selected remedy without EPA
 approval. Indeed, to do so would be
 tantamount to giving the states a veto
 power over EPA remedial action
 decisions, contrary to Agency policy
 (discussed earlier in this preamble) that
 EPA should retain the final authority to
 select CERCLA remedies. Further,
 allowing states to go forward with
 actions inconsistent with those being
 implemented by EPA would likely result
 in delays  in the cleanup of Superfund
 sites, and could potentially create
 unsafe working conditions for remedial
 action contractors.
   Consistent with this discussion, final
 rule § 300.515(fJ has been revised to
 better reflect the conditions under which
 state-suggested changes to, or
 expansions of, EPA-selected remedial
 actions should go forward.
   Finally, as noted above, there is a
 process provided for in CERCLA section
 121(f)(2) for states to seek to require
 remedial actions secured under
 CERCLA section 106 to conform to
 waived ARARs. EPA believes it is
 appropriate for the final rule simply to
 reference the procedures set out in the
 statute, rather than attempt to
 characterize them. Thus, the final rule
 on this point has also been changed.
   Final rule: Section 300.515(f) is revised
 as follows:
   (f) Enhancement of remedy. (1) A state may
 ask EPA to make changes in or expansions of
 a remedial action selected under subpart E.
   (i) If EPA finds that the proposed change or
 expansion is necessary and appropriate to
 the EPA-selected remedial action, the remedy
 may be modified (consistent with
 § 300.435(c)(2)) and any additional costs paid
 as part of the remedial action.
   (ii) If EPA finds that the proposed change
 or expansion is not necessary to the selected
 remedial action, but would not conflict or be
 inconsistent with the EPA-selected remedy,
 EPA may agree to integrate the proposed
 change or expansion into the planned
 CERCLA remedial work if:
   (A) The state agrees to fund the entire
 additional  cost associated with the change or
 expansion; and
   (B) The state agrees to assume the lead for
 supervising the state-funded component of
.the remedy or, if EPA determines that the
 state-funded component cannot be conducted
 as a separate phase or activity, for
 supervising the remedial design and
 construction of the entire remedy.
   (2] Where a state does not concur in a
 remedial action secured by EPA under
 CERCLA section 106, and the state desires to
 have the remedial action conform to an
 ARAR that has been waived under
 § 300.430(fJ(l](ii)(C), a state may seek to have
that remedial action so conform, in
accordance with the procedures set out in
CERCLA section 121(f)(2).
  Name: Section 300.515(g). State
involvement in remedial design/
remedial action.
  Proposed rule: Proposed § 300.515[g)
read that for Fund-financed remedial
actions, the lead and support agencies
shall conduct a joint inspection to
determine that the remedy has been
constructed in accordance with the ROD
and the remedial design.
  Response to comments: Several state
commenters contended that the states'
interest in cleaning up sites and their
participation in 10 percent of the costs of
remedial actions demands a much larger
role in remedial design/remedial action
than just a final joint inspection.
Therefore, more detailed and specific
language should be provided in the final
NCP as it pertains to state role in the
implementation of remedial actions.
Specific recommendations included that
both EPA and a state, regardless of
whether the action is EPA or state-lead,
should review and comment on the 30,
60, and 95 percent designs, as well as
agree on the final design and
specifications.
  Also, commenters recommended that
both parties should discuss significant
changes and must consult prior to
reopening a ROD. Other suggested areas
for EPA and state interaction were bid
procurement, review of contract prior to
award, construction progress meetings,
construction oversight, change order
negotiations and approvals above limits
specified in the cooperative agreement.
One of the commenters stated that while
these issues may be addressed in a
SMOA, minimum requirements should
be specified in the NCP in the absence
of a SMOA.
  EPA agrees that the state role during
remedial design and remedial action is
very important. However, rather than
specify the minimum requirements for
state involvement during remedial
design and remedial action in the final
rule, the final rule will specify that
state/EPA interaction during remedial
action will be described in site-specific
agreements: either a cooperative
agreement or Superfund state contract.
This will provide flexibility on a site-by-
site basis. The range of responsibilities
assumed by states under  site-specific
agreements or SMOAs is necessarily
constrained by the legal limits on
delegation of EPA authority, e.g.,
limitations on delegating enforcement
authority.
  Final rule: Section 300.515(g) will be
retitled as "State involvement in
remedial design and remedial action."
The following sentence is added to
§ 300.515(g): "The extent and nature of
state involvement during remedial
design and remedial action shall be
specified in site-specific cooperative
agreements or Superfund state
contracts, consistent with 40 CFR part
35 subpart O."
  Name: Section 300.520(a) and (c).
State involvement in EPA-lead
enforcement negotiations.
  Proposed rule: Section 300.520(a)
stated that "EPA shall notify states of
response action negotiations to be
conducted by EPA with potentially
responsible parties during each fiscal
year." Section 300.520(c) stated: "The
state may be a party to such settlements
in which it is a participant in the
negotiations."
  Response to comments: One comment
proposed revising § 300.520(c) so that
states may become a party to a
settlement whether or not they first
participate in the negotiations. Another
comment asked that § 300.520(a) be
expanded to require EPA to notify states
not only that PRP negotiations are going
to be held, but where and when. One
commenter stated that notice is
frequently too late for states to
participate meaningfully.
  EPA recognizes that there may be
circumstances where the state is
involved in initial negotiations, decides
not to be heavily involved in all
sessions, but may want to  sign the
negotiated decree without modifying it.
EPA agrees that the proposed revision
would better reflect the statutory intent
of CERCLA section 121(f)(l)(F), which
requires: "Notice to the state of
negotiations with potentially
responsible parties regarding the scope
of any response action at a facility in
the state and an opportunity to
participate in such negotiations and,
subject to paragraph (2), be a party to
any settlement." However, it is also
important to note that while it may be
appropriate to allow states to join
settlements at any time, EPA may
conclude settlement negotiations with
PRPs without state concurrence
(CERCLA section 121(f)(2)(C)).
  Final rule: Proposed § 300.520(c) is
revised as follows: "The state is not
foreclosed from signing a consent decree
if it does not participate substantially in
the negotiations."
  Name: Dual  enforcement standards.
  Proposed rule: Subpart F discussed
provisions for "substantial and
meaningful state involvement" in the
cleanup process. The subpart introduces
the EPA/state  Superfund memorandum
of agreement (SMOA), a non-binding
agreement between EPA and a state to

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122	Federal  Register / Vol. 55, No. 46  /  Thursday,  March 8, 1990 / Rules and Regulations
define respective governmental roles for
state participation in pre-remedial,
remedial and enforcement response
actions. The SMOA recognized state
leadership while preserving EPA review
and concurrence powers, and EPA's
right to proceed under CERCLA to
ensure compliance with section 121 and
other provisions of CERCLA. At EPA-
lead sites, the state may disagree with
EPA's choice of remedy. Section 300.505
described the procedures to develop
SMOAs. Section 300.515 outlined state
involvement in remedial actions,
including a discussion of what options
are available when states and EPA
disagree on cleanup standards.
  Response to comments: EPA received
comments stating that the proposed NCP
was unclear on whether states have the
right to require PRPs to meet more
stringent state requirements in addition
to CERCLA-specified ARARs for a
Fund-financed or an enforcement action.
The large number of comments EPA
received on this issue reflects a strong
concern that dual and potentially
conflicting standards will be enforced
by EPA and states. EPA acknowledges
that this is an area requiring further
review and evaluation. EPA believes,
however, that mechanisms in the final
NCP can be used to minimize the
possibility of conflicting standards
imposed upon PRPs.
   One such mechanism is the SMOA.
An important purpose of SMOAs is to
establish a working relationship
between EPA and a state on
coordinating their respective
involvement in remedy selection and
enforcement strategies at sites
throughout that state. Another
mechanism is the concurrence process
described in the NCP. The degree to
which EPA (or another federal  agency)
and a state can concur on each other's
remedies will reduce the need for EPA
to take a separate action at a site or for
the state to challenge remedies selected
by EPA which are covered by CERCLA
sections 121(f)(2) or (3). The final NCP
places great emphasis on the
concurrence process (see § 3Q0.515(e)(2))
and on dispute resolution (see preamble
section above) to encourage EPA, other
federal  agencies and states to resolve
differences among them and select the
single remedy for a site that will fulfill
the objectives and requirements of each
agency.
   A commenter objected to the
statement that EPA silence on a state-
lead remedy (selected under state law)
cannot be construed as concurrence and
that EPA retains the right to proceed
with a remedy under CERCLA. In
response, EPA may not be an active
participant in negotiations between a
state and PRPs at state-lead sites but
EPA encourages states to notify EPA of
such negotiations and seek EPA
concurrence on the remedy selected. In
the preamble to the proposed NCP,
however, EPA cautioned that EPA will
not be bound to any decisions made by
a state if EPA does not concur on the
remedy (see 53 FR 31458). EPA believes
that it has a responsibility to bring an
action under CERCLA when necessary
to protect human health and the
environment. EPA intends that the
processes established in the final NCP
will reduce the need for such action but
EPA must maintain its ability to perform
statutory mandates.
  Other commenters contended that
states should not be allowed to contest
an EPA-lead remedy if they did not
participate in negotiations, and
suggested that some mechanism be
included in the NCP to require EPA and
state participation and concurrence in
all remedial action settlements at NPL
sites.  A similar comment recommended
that EPA and states be joint signatories
on more settlements. In response, EPA
encourages concurrence by both EPA
and a state but does not believe that it is
necessary to require such concurrence
on all settlements or remedies. EPA and
states are encouraged to plan ahead and
decide on the extent of their
involvement in the work necessary to
reach settlements and decide on
remedies. EPA and the state can also
agree that even if one agency is not
substantially involved in the work, that
agency may still  sign or concur on the
settlement or the ROD. In fact,
§ 300.520(c) of the final NCP provides
that a state is not foreclosed from
signing a consent decree if it does not
participate substantially in the
negotiations. In addition, a state is not
required to participate in settlement
negotiations in order to challenge a
remedy under CERCLA section 121(f)(2)
or (3). EPA believes, however, that
involving the state in such negotiations
may reduce the circumstances under
which a state would resort to a statutory
challenge.
  Finally, a commenter recommended
that the NCP grant states that
participate in settlement negotiations for
actions taken under CERCLA sections
106 or 122, the right to review, comment
on and approve/disapprove work
undertaken by PRPs. In response, a state
may participate in settlement
discussions for actions to be taken
under sections 106 or 122. The oversight
activities that may be conducted by a
state, however, are limited by the extent
to which EPA can delegate enforcement
responsibilities under CERCLA section
106. States may approve or disapprove
work by PRPs when conducting an
enforcement action under state law.
  Final rule: There is no rule language
on this issue.
Subpart G—Trustees for Natural
Resources
  Section 107(a)(4)(C) of CERCLA
imposes liability for the injury,
destruction, or loss of a natural
resource, including the costs of a natural
resources damage assessment, resulting
from the release of hazardous
substances. Section 107(f)(l) of CERCLA
provides that only properly designated
federal trustees, authorized
representatives of an affected state, or
Indian tribes can pursue a section
107(a) (4) (C) action. Clean Water Act  .
(CWA) section 311(f) imposes similar
liability for discharges of oil and
hazardous substances into navigable
waters of the United States.
  Pursuant to section l(c) of Executive •
Order 12580 (52 FR 2923, January 29,
1987), and in accord with CERCLA
section 107(f)(2)(A) and section 311(f) of
the Clean Water Act, the Secretaries of
Defense, the Interior, Agriculture,
Commerce, and Energy are among the
agencies that are designated in the NCP
as federal trustees for natural resources.
Those  federal trustees act on behalf of
the President in assessing damages to
natural resources from discharges of oil
or releases of hazardous substances,
pollutants, or contaminants. Subpart G
outlines the designations of federal
trustees under CERCLA. Although the
1986 amendments to CERCLA
necessitated few changes to the NCP
provisions on natural resources, the
major  objective for this proposed
revision is to make the subpart more
readable and understandable to those
who are not familiar with trustee agency
authorities. Because the primary
purpose of this subpart is to list natural
resource trustee agency designations so
as to ensure prompt notification as
required by CERCLA, the proposed
changes reflect an overriding concern
that trustee jurisdictions be described as
accurately as possible.
  Section 301(c) of CERCLA requires the
promulgation of rules for the assessment
of damages for injury to, destruction of,
or loss of natural resources resulting
from a discharge of oil or a release of a
hazardous substance under CERCLA
and the Clean Water Act. Pursuant to
Executive Order 12580, section ll(d), the
responsibility to promulgate these
regulations has been delegated to the
Department of the Interior (DOI). DOI
has promulgated rules for the

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            federal Register / Vol. 55, No,  46 / Thursday.  March 8, 1990  / Rules  and Regulations
                                                                          123
assessment of damages for the injury to,
destruction of, or loss of natural
resources (see 43 CFR part 11). Parts of
those rules were struck down by the
U.S. Court of Appeals for the District of
Columbia Circuit on July 14,1989, and
remanded to  the Department of the
Interior for further consideration. See
State of Ohio v. U.S. Department of the
Interior, 880 F.2d 432 (D.C. Cir. 1989),
and State of Colorado v. U.S.
Department of the Interior, 880 F.2d 481
(D.C. Cir. 1989).
  The use of  the procedures described
in DOI's rule, 43 CFR part 11, is optional.
However, the results of an assessment
performed in accordance with the DOI
rule by a federal or state trustee, or
Indian tribe, if reviewed by a federal or
state trustee,  shall be given the status of
a rebuttable presumption in an action to
recover damages for injuries to,
destruction of, or loss of natural
resources. Whether or not the
procedures in 43 CFR part 11 are
followed, a trustee agency may decide
to proceed with a range of information
gathering and other trust-related
activities.
  The following are summaries of
comments on the proposed subpart G
and EPA's responses.
  Name: Section 300.600. Designation of
federal trustees.
  Existing rule: Section 300.72 of the
1985 NCP designated those federal
officials who  are to act on behalf of the
public as trustees of federal natural
resources. It also described the types of
resources that the agencies manage and
gave examples of the resources that
might be under their trusteeship.
  Proposed rule: In the proposed rule
(renumbered  § 300.600), EPA attempted
to clarify and define as accurately as
possible the federal agencies
responsible for specific resources. It did
this by delineating in the paragraph
headings the  federal agency or type of
federal agency responsible for natural
resources. In  addition, EPA proposed to
change the narrative to describe in more
detail the resources that agencies
manage and to give examples of
resources that might be under an
agency's trusteeship.
  The proposed rule designated the
Secretary of Commerce as a trustee. The
proposed rule also provided that  the
Secretary shall act with the concurrence
of other federal agencies when the
resources or authorities of other
agencies are involved. The Secretary is,
however, a trustee in his own right also,
pursuant to various statutory
authorities.
  The proposed rule also described
federal agency jurisdiction over certain
natural resources. The 1985 NCP
designated the Secretary of Commerce
as the trustee for natural resources in or
under "waters of the contiguous zone
and parts of the high seas *  * *." The
proposed rule includes under the
Secretary's jurisdiction, the natural
resources "in or under tidally influenced
waters, the waters of the contiguous
zone, the exclusive economic zone, and
the outer continental shelf *  *  *."
  The proposed rule also deleted the
1985 NCP's (§§ 300.72(a) and (b))
exclusion of lands or resources in or
under U.S. waters. This  was proposed
because federal trusteeship derives
primarily from authority to manage or
protect affected resources regardless of
where these resources are located.
  Response to comments: 1.  Territorial
sea—definition. One commenter asked
if subparts D and G will be revised to
reflect the new definition of "territorial
sea" in  the January 1989 Presidential
Proclamation.
  The term "territorial sea" is used in
the NCP only in the definition of
"contiguous zone." "Territorial sea" is
not defined in the NCP but is defined in
CERCLA section 101(30) as having the
same meaning provided in CWA section
502. This section defines the term
"territorial sea" as "the  belt of the seas
measured from the line of ordinary low
water along that portion of the coast
which is in direct contact with the open
sea and the line marking the seaward
limit of inland waters, and extending
seaward a distance of three miles." On
December 27,1988, the President issued
a Proclamation (No. 5928, 54 FR 777,
January 9,1989) extending the territorial
sea of the United States to 12 nautical
miles from the baselines of the United
States determined in accordance with
international law. However, the
Presidential Proclamation provides that
nothing therein "extends or otherwise
alters existing federal or state law or
any jurisdiction, rights, legal interests, or
obligations derived therefrom  * *  *."
Therefore, the CWA definition of
territorial sea has not been revised by
this proclamation. Accordingly, EPA
believes that it is unnecessary to change
the use  of territorial sea in the NCP.
  2. Trustees' authority. One commenter
stated that trustee actions are
authorized by CERCLA,  but no specific
responsibilities are delineated. The
commenter stated that the main purpose
of subpart G is to indicate the
responsibilities of trustees, not to be a
"plan" or other listing of their activities.
However, one commenter recognized the
merit of including in subpart G examples
of the kinds  of activities that OSC/RPMs
and others could expect of trustees. The
commenter thought that  the purpose of
 the subpart was not clearly understood
 in the preamble and should be clarified.
  Another commenter asserted that
 proposed § 300.600(b) could be
 construed as limiting trustees' activities
 to enumerated activities, and should be
 clarified, since trustees have many
 additional authorities other than those
 enumerated in that section.
  The purpose of subpart G is not to be
 an exclusive listing of the
 responsibilities of natural resource
 trustees, but to better inform the  public
 of natural resource trustee designations.
 Proposed § 300.615 outlines some
 responsibilities of all trustees in general
 and federal trustees in particular.
 However, those responsibilities listed
 are not exclusive. Proposed § 300.615(e)
 lists some actions which may be  taken
 by any trustee. Those actions are
 described as including but not being
 limited to certain enumerated actions.
 Nowhere in the preamble to the
 proposed rule or in the proposed rule
 itself is the suggestion that the listed
 activities are the only activities which
 trustees may take. Trustees may  act
 pursuant to any other authority they
 have besides the NCP. However, to
 clarify the issue, EPA has changed the
 final rule language in the introduction to
 § 300.615(c) to read "Upon notification
 or discovery of injury to, destruction of,
 loss of, or threat to natural resources,
 trustees may, pursuant to section 107(f)
 of CERCLA or section 311(f)(5) of the
 Clean Water Act, take the following or
 other actions as appropriate:". The
 addition of "take the following or other
 actions as appropriate" is intended to
 highlight that the enumerated actions
 are not the only actions a trustee might
 take under CERCLA or the Clean Water
 Act, but are only examples of actions a
 trustee might take. EPA has also revised
 the final rule language in the
 introduction to § 300.615(e) to clarify
 that the trustee is acting pursuant to the
 Clean Water Act and CERCLA. The
 clarification is intended to highlight that
 trustees may also act pursuant to
 whatever authority they have and that
 the examples of responsibilities listed
 stem only from CERCLA and the  Clean
 Water Act. EPA has also revised the
 introduction to § 300.615(d) to specify
 that the trustees' authority includes, but
 is not limited to the enumerated actions.
  As to the comment concerning
 § 300.600(b), EPA believes that nothing
in that proposed or final section limits
the trustees' authority to act in the
proper circumstances. The section does
not enumerate all the activities which
the trustees may Undertake, it merely
describes situations under which they
may act pursuant to CERCLA and the

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124	Federal Register /  Vol. 55,  No. 46  /  Thursday, March  8, 1990 / Rules  and  Regulations
Clean Water Act. Those situations are
when "there is injury to, destruction of,
loss of, or threat to natural resources as
a result of a release of a hazardous
substance or a discharge of oil."
However, to clarify that the rule does
not limit trustees to act under other
authorities, EPA is changing the rule
language in § 300.600(b) to read that
trustees are authorized to act "pursuant
to section 107(f) of CERCLA or section
311(f)(5) of the Clean Water Act" in the
listed instances.
  3. Authority of Secretary of
Commerce. One commenter believed
that proposed § 300.600(b)(l) implied
that the Secretary of Commerce acts on
behalf of other federal agencies with
authorities to manage or protect natural
resources in coastal or marine areas but
has no management or protection
authorities himself and suggested that
the rule language be changed to reflect
that the Secretary is a trustee in his own
right.
  Another commenter questioned
whether the requirement in
§ 300.600(b)(l) that the Secretary of
Commerce (through NOAA) obtain the
concurrence of other federal agencies
before it acts is lawful. The commenter
noted that this is particularly important
where a federal agency may be a PRP,
and may have the incentive to diminish
the actions of the Department of
Commerce and therefore reduce its
potential liability. The commenter urged
that the "concurrence" requirement be
dropped.
   Certain natural resources (e.g., within
coastal and marine areas) are indeed
under the jurisdiction of the Department
of Commerce. EPA has clarified final
§ 300.600(b)(l) to read: "Secretary of
Commerce. The Secretary of Commerce
shall act as trustee for natural resources
managed or protected by the
Department of Commerce or by other
federal agencies and that are found in or
under waters navigable by deep draft
vessels,  * * *   (remainder as
proposed)."
   Specific natural resources in areas
under the trusteeship of DOC may also
be managed or protected un'der statutes
administered by other federal agencies.
Therefore, it is appropriate that the
Secretary of Commerce shall, whenever
practicable, seek the concurrence of the
other agency when there is overlapping
jurisdiction. Such concurrence is not
required by law, however, and therefore,
EPA will revise § 300.600{b)(l) to
 eliminate the requirement of mandatory
 concurrence of another federal agency
before the Secretary of Commerce takes
 an action with respect to an affected
resource  under the management or
protection of that agency. Instead the
revised rule provides that the Secretary
of Commerce shall, whenever
practicable, seek such concurrence.
  Final rule: EPA is revising proposed
§ 300.600 as follows:
  1. EPA is revising the introduction to
§ 300.600(b) to make it clear that
trustees are authorized to act "pursuant
to section 107(f) of CERCLA or section
311(f)(5) of the Clean Water Act" given
the listed circumstances. Trustees may
also act pursuant to whatever other
authority they may possess.
  2. Section 300.600(b)(l) is being
revised to clarify that some natural
resources are managed or protected by
the Secretary of Commerce. It is being
further revised to eliminate the
requirement of concurrence of another
federal agency before the Secretary  of
Commerce acts with respect to an
affected natural resource under the
management or protection of the other
federal agency. Concurrence of the other
federal agency shall be sought whenever
practicable, pursuant to the revised rule.
  Name: Section 300.610. Indian tribes
as trustees for natural resources under
CERCLA.
  Proposed rule: For purposes of a
release or threatened release of a
hazardous substance which causes the
incurrence of response costs, the 1986
amendments to CERCLA provide that an
Indian tribe may bring an action for
injury to, destruction of, or loss of
natural resources belonging to, managed
by, controlled by, or appertaining to
such tribe, or held in trust for the benefit
of such tribe, or belonging to a member
of such tribe if such resources are
subject to a restriction on  alienation.
The proposed rule provided that the
tribal  chairmen (or heads of the
governing bodies), or other person
designated by tribal officials, are
trustees for those natural resources. The
proposed rule provided that the tribe, if
it designated a person other than the
chairman (or head of the tribal
governing body), notify the President of
the trustee designation. The tribal
trustee would have similar
responsibilities to state and federal
trustees under the proposed rule.
  Response to comments: 1.
Notification—timeliness of notice. A
 commenter noted that tribal resources,
 either on or off-reservation, may be
 affected by off-reservation Superfund
 sites.  The commenter suggested that the
 NCP should clearly state that tribal
 natural resources trustees must be
 notified when a tribe's resources are
 injured by an oil discharge or a release
 of hazardous substances because early
 and proper notice will help Indian tribes
 protect their limited resource base by
assuring timely assessments and
maximum protective efforts.
  EPA realizes that tribal resources, like
other natural resources, may be affected
by off-reservation Superfund sites.
Pursuant to § 300.615(b), trustees are
responsible for designating to the
Regional Response Teams (RRTs), for
inclusion in the Regional Contingency
Plan, appropriate contacts to receive
notifications from the on-scene
coordinators (OSCs)/remedial project
managers (RPMs) of potential damages
to natural resources. Therefore, under
the final rule, if tribal trustees (or the
Secretary of the Interior, as appropriate)
have notified the RRT of an appropriate
contact, they will likely receive the early
notification they seek.
  2. Trustee designation. A commenter
wanted EPA to contact affected tribes to
determine who will serve as tribal
trustee for Superfund activities. The
final rule provides that the tribal
chairmen (or heads of the governing
bodies) of Indian tribes, or a person
designated by tribal officials to act on
behalf of Indian  tribes are natural
resources trustees for certain categories
of natural resources. For other
categories of resources,  the Secretary of
the Interior continues to function as
trustee.
  Normally the tribal chairman  (or head
of the governing body of the tribe) will
be the natural resource trustee.
However, tribal  officials may choose to
designate another person as trustee.
When those officials designate another
person as trustee, the final rule provides
that the tribal chairman or heads of the
tribal governing  bodies notify the
President of the  trustee designation.
EPA in the past has contacted states to
learn of state trustee designations and
will contact federally recognized Indian
tribes  to learn of tribal trustee
designations.
  In contrast to  CERCLA, under CWA
section 311, Indian tribes are not
trustees and thus may not bring actions
for injury to natural resources pursuant
to that Act. For purposes of the  Clean
Water Act and for certain circumstances
under CERCLA, where the United States
continues to act as trustee on behalf of
an Indian tribe, the Secretary of the
Interior will function as trustee  of those
natural resources for which the Indian
tribe would otherwise act as trustee.
Therefore, § 300.610 is being revised to
eliminate the reference to authority to
act of an Indian tribe when there is a
discharge of oil.
   3. Tribal resources. A commenter
thought that the proposed rule failed to
recognize the  scope of tribal resources,
 e.g., hunting, fishing, and water rights.

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             Federal Register / Vol. 55,  No. 46 / Thursday, March 8, 1990  / Rules  and Regulations
                                                                           125
   EPA's description of natural resources
 in proposed § 300,600 was not intended
 to be an exclusive list, but only to give
 some examples of natural resources. It
 would be impossible to list every type of
 natural resource. CERCLA section
 101(16) defines "natural resources" as
 including land, fish, wildlife, biota, air,
 water, ground water, drinking water
 supplies, and other such resources
 belonging to the federal government, a
 state, or local government, or an Indian
 tribe, or if such resources are subject to
 a trust restriction on alienation, to any
 member of an Indian tribe.
  As to the commenter's specific
 concern about hunting, fishing, and
 water rights, EPA believes that those
 rights are not themselves natural
 resources. The game to be hunted, the
 fish to be caught, and the water to be
 used are the resources, not the rights to
 those resources. Therefore, no change to
 rule language is necessary.
  4. Natural resource damage
 assessments. One commenter suggested
 that the language in the preamble to the
 proposed rule (at 53 FR 51460) stating
 that a natural resource damage
 assessment performed by an Indian
 tribe, when reviewed by federal or state
 natural resource trustees, will be
 allowed the rebuttable presumption,
 should be changed.28 The commenter
 suggested that the language should be
 changed to reflect that damage
 assessments performed fay Indian tribes
 jointly with federal or state natural
 resource trustees would qualify for the
 rebuttable presumption. The commenter
 noted that similar language is found in
 the preamble to the natural resource
 damage assessment regulations at 53 FR
 5168 (February 22,1988).
  EPA agrees with the commenter.
 When federal and state trustees and
 Indian tribes work closely together on
 assessments, such assessments may
 qualify for a rebuttable presumption.
  Final rule: Proposed § 300.610 is
 revised as follows:
  1. The second sentence is revised to
 read: "When the tribal chairman or head
 of the tribal governing body designates
 another person as trustee, the tribal
 chairman or head of the tribal governing
 body shall notify the President of such
 designation."
  28 Section 107(f)(2)(C) of CERCLA provides that
any determination or assessment of damages for
purposes of CERCLA or section 311 of the Clean
Water Act has the force and effect of a rebuttable
presumption on behalf of the trustee in any
administrative or judicial proceeding under
CERCLA or section 311 of the Clean Water Act if
made by a federal or state trustee in accordance
with the regulations promulgated under CERCLA
section 301(cJ.
   2. The last sentence is revised to read:
 "Such officials are authorized to act
 when there is injury to, destruction of,
 loss of, or threat to natural resources as
 a result of a release of a hazardous
 substance."
  Name: Section 300.615.
 Responsibilities of trustees.
  Proposed rule: The proposed rule
 reorganized and substantively changed
 § 300.74 of the 1985 NCP. It sought to
 provide better information on the
 actions trustees may take to carry out
 their responsibilities. The proposed rule
 required cooperation and coordination
 when there are multiple trustees
 because of coexisting or contiguous
 natural resources or concurrent
 jurisdiction. It also described the
 responsibilities of all trustees in general,
 and of federal trustees in particular.
 Finally, in accord with the amendment
 of CERCLA, the proposed rule deleted
 the option of pursuing claims against the
 Fund for natural resource damage
 assessment and restoration of natural
 resources.
  Response to comments: IV'
 Coordination— a. Multiple trustees.
 One commenter suggested that the final
 rule should discuss "lead trustee"
 designation and exactly what
 responsibilities and authority the lead
 trustee has for the coordination of
 assessment activities by multiple
 trustees. Another commenter asked if
 three-party agreements among the
 appropriate federal agency, the Indian
 tribe, and the state will be available in
 promoting cooperation.
  EPA believes that it is important that
 only one person (i.e., the lead agency
 OSC or RPM) manage activities at the
 site of a release or potential release.
 When there are multiple trustees, EPA
 recommends that a lead authorized
 official be designated to coordinate all
 aspects of the natural resource damage
 assessment, investigation, and planning,
 including federal trustees' participation
 in negotiations with PRPs as.provided
 under CERCLA section 122(j)(l). This
 coordination is designed to ensure
 efficient response actions and avoid
 duplication of efforts.
  An authorized official is a federal or
 state official to whom is delegated the
 authority to act on behalf of the federal
 or state agency designated as trustee, or
 an official designated by an Indian tribe,
to perform a natural resource damage
 assessment. (See the Department of the
Interior natural resource damage
 assessment rules at 43 CFR 11.14(d).) A
lead authorized official is a federal or
state official authorized to act on behalf
of all federal or state agencies, or an
official designated by multiple tribes
 when there are multiple tribes, affected
 because of coexisting or contiguous
 natural resources or concurrent
 jurisdiction (43 CFR 11.14(w)). The DOI
 damage assessment rules encourage the
 cooperation and coordination of
 assessments that involve multiple
 trustees because of coexisting or
 contiguous natural resources or
 concurrent jurisdiction. The DOI
 regulations also contain examples of a
 lead authorized official's responsibilities
 in a damage assessment. He acts  as
 coordinator and contact regarding all
 aspects of the assessments and acts  as
 final arbitrator of disputes if consensus
 among the trustees cannot be reached
 regarding the development,
 implementation or any other aspect of
 the Assessment Plan. The lead
 authorized official is designated by
 mutual agreement of all the natural
 resource trustees. Pursuant to the
 damage  assessment regulations (at 43
 CFR 11.32(a)(l)(ii)(A)-(D)), if consensus
 cannot be reached on a lead authorized
 official: (1) When the natural resources
 being assessed are located on lands or
 waters subject to the administrative
 jurisdiction of a federal agency, a
 designated official of the federal agency
 shall act as the lead official; (2) when
 the natural resources being assessed are
 located on lands or waters of an Indian
 tribe, an official designated by the
 Indian tribe shall act as the lead official;
 and (3) for all other natural resources for
 which a state may assert trusteeship, a
 designated official of the state agency
 shall act as lead official.
  The final rule suggests that where
 there are multiple trustees, because of
 coexisting or contiguous natural
 resources or concurrent jurisdictions,
 they should coordinate and cooperate in
 carrying out their responsibilities  as
 trustees. EPA has substituted the words
 "should coordinate and cooperate" for
 the words "shall coordinate and
 cooperate" in final § 300.615(a). EPA has
 made this change because one trustee
 cannot compel another trustee to
 coordinate and cooperate in carrying out
 trust responsibilities, no matter how
 desirable that coordination and
 cooperation might be. However, EPA
wishes to encourage such coordination.
  Three-party agreements are not
 excluded by the NCP. Therefore,
 coordination and cooperation may
include three-party agreements if
necessary to facilitate the
responsibilities of the trustees.
  b. Investigations. One commenter
suggested that biological assessment
groups or technical assistance groups
formed in various EPA regions provide a
model for coordination that could  be

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126	Federal Register / Vol. 55, No. 46 / Thursday, March 8,  1990 / Rules and Regulations^
valuable nationwide, and the preamble
might include mention of these as
mechanisms to implement CERCLA
section 104(b)(2).
  Regional planning and coordination of
preparedness and response actions is
accomplished through the Regional
Response Team (RRT). Such
coordination may include biological
assessment groups or other technical
groups. Several EPA regional offices
already include biological and technical
assistance groups. Typically the groups
are comprised of representatives from
the Department of the Interior, U.S. Fish
and Wildlife Service, the Department of
Commerce (NOAA), and state
departments of environmental
conservation under the direction of an
EPA chairman.
  c. Mandatory coordination. One
commenter suggested that language in
proposed §§ 300.615{c), 300.410{g), and
300.430(b)(7) should be changed to
delete the words "as appropriate"
referring to coordination of trustees'
efforts. This language should be
strengthened to be consistent with
CERCLA section 104(b)(2). Such
coordination would minimize
duplicative efforts and costs in natural
resource damage assessments and RI/
FSs, and would lead to more settlements
under section 122(j).
  Section 104(b](2) of CERCLA provides
that the "[President shall *  * * seek to
coordinate the assessments,
investigations, and planning under this
section with such federal and state
trustees." EPA agrees that in most
places in the final rule the term "as
appropriate" is not necessary. The term
is not in section 104(b)(2) and is not
needed to implement that section. EPA
will eliminate the term "as appropriate"
from §§ 300.410(g) and 300.430(bX7). as
 the commenter requested, as  well as in
 §§ 300.135{j) and 300.305(d). However,
EPA will retain the term "as
 appropriate" in § 300.615(c). That
 section discusses the types of actions
 which a trustee may take under
 CERCLA. The trustee may have already
 taken the action or the action may not
 be necessary or desirable. Therefore, it
 is necessary to retain the term "as
 appropriate" in that section.
   EPA has also revised § 300.315(c) to
 require the OSC to make available to
 the trustee information and
 documentation that can assist the
 trustee in determination of actual or
 potential natural resource injury from oil
 discharges. EPA has added the following
 sentence to the end of § 300.315(c): "The
 OSC shall make  available to the trustees
 of the affected natural resources
 information and documentation that can
 assist the trustee hi the determination of
actual or potential natural resource
injuries." EPA has revised § 300.315(c) to
facilitate coordination between the OSC
and the trustee, and to make the
provision on oil discharges consistent
with the provision on release of
hazardous substances (see
§ 300.160(a](3)).
  As an editorial change, EPA is also
adding the words "the trustee" in
§ 300.160(a)(3), so that it reads: "The
lead agency shall make available to the
trustees of affected natural resources
information and documentation that can
assist the trustees in the determination
of actual or potential natural resource
injuries." The addition of the words "the
trustees" does not substantively change
the meaning of the section, but
emphasizes that the trustees make the
determination of injury to natural
resources.
  2. Notification—a. Criteria. A
commenter suggested that the section on
trustees should also provide criteria for
notifying them.
  CERCLA section 104(b)(2) and final
NCP § 300.615(c) provide criteria for
notification of trustees. The statute
requires the President to promptly notify
appropriate federal and state natural
resource trustees of potential damages
to natural resources resulting from
releases under investigation pursuant to
section 104(b). Pursuant to § 300.135(c)
of the final rule, the OSC/RPM shall
collect pertinent facts about the release,
including the potential impact on natural
resourcies. This information is in turn
used to comply with § 300.135(j) and (k).
   b. Not dependent on OSC/RPM. One
commenter noted that natural resource
trustee notification should not be
dependent upon a decision by the OSC/
RPM as to whether resources are
affected by the release. The federal and
state trustee agencies should be notified
of the release; trustee agencies have
both the expertise to determine the
likelihood of injury to their resources
 and the responsibility for making the
 determination. The commenter
 suggested that this issue should be
 clarified in the preamble to the final rule
 by incorporating the following language:
 "The OSC or lead agency is responsible
 for ensuring  that state and federal
 trustees are  notified promptly of natural
 resources that may be exposed to, may
 be at risk from, or may be injured by
 discharges or releases."
   EPA agrees that natural resource
 trustee notification should not be
 dependent upon a decision by the OSC/
 RPM as to whether resources are
 affected by the release. EPA also agrees
 that the lead trustee should make the
 determination of whether resources
 under its jurisdiction are affected. The
final rule is unchanged in this regard
because EPA believes that the final rule
§ 300.135(j) and (k) adequately address
the commenter's concern.
  c. Duty to notify mandatory. One
commenter argued that "as appropriate"
or other phrases qualifying either the
responsibility to notify, or the timing of
notification, incorrectly lead OSCs and
RPMs to view trustee notification as
discretionary. The commenter suggested
that language in the preamble briefly
explain the intent or limitations of "as
appropriate" or similar qualifying
phrases, such as is done  for those same
phrases in the preamble  of subpart J on
dispersants, to make it clear that the
intent of the NCP  provision is that
trustees be notified.
   EPA agrees that the OSC/RPM has
the mandatory duty to notify the trustee
of discharges or releases that are
injuring or may injure natural resources
under a trustee's jurisdiction. Final
§ 300.135(j) codifies this  requirement.
The phrase "as appropriate" has been
deleted from the second sentence of
§ 300.135(j). EPA also inadvertently
omitted necessary language and
included unnecessary language in the
second sentence in proposed
§ 300.135(j). Therefore, EPA has revised
that sentence to read: "The OSC or RPM
shall seek to coordinate all response
activities with natural resource
trustees." The words "seek to"
coordinate were added to track the
language of section 104(b)(2). The words
"* * *  should consult with the natural
resources trustee in determining such
effects and *  * *" were deleted from
the second sentence because those
words may have implied that the OSC
had a role in determining whether there
was injury or potential injury to natural
resources, when in fact that is a sole
determination of  the trustee.
   3. Damage assessments—a.
 Qualifications of assessor. One
 commenter suggested that pursuant to
 § 300.615(c)(4), EPA should identify the
 qualifications that must be
 demonstrated for an individual to assess
 damages following 43 CFR part 11.
   The qualifications that must be
 demonstrated for an individual to assess
 damages are determined by the trustee.
 The Department of the Interior
 regulations specify how to conduct a
 damage assessment in order to qualify
 for the rebuttable presumption, but the
 qualifications of the person conducting
 that assessment is a question for each
 trustee to determine according to  the
 needs of the trustee for  the injured
 resources in question.
   b. Negotiations. One  commenter
  suggested that the following language,

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             Federal  Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
                                                                          127
 which is similar to DOI's natural
 resource damage assessment rules, be
 included in § 300.615: "State and federal
 trustees are not required to conduct a
 natural resource damage assessment to
 effectively participate in settlement
 negotiations. State and federal trustees
 need not conduct a natural resource
 damage assessment in order to agree to
 a covenant not to sue for natural
 resource damages."
  The preamble to the DOI regulations
 (at 53 FR 5169, February 22,1988)
 concerning natural resource damage
 assessments contains language noting
 that it is not necessary to conduct a
 damage assessment in order to
 effectively participate in settlement
 negotiations. EPA agrees with the DOI
 position and further believes that such
 an  assessment is not a prerequisite to a
 covenant not to sue. Therefore, since the
 preamble to the DOI regulations
 provides the requested change already,
 no  change to the NCP rule language is
 necessary.
  c. Duty to perform. A commenter felt
 that the statements in the subpart that
 the federal trustees "will" or "may" act
 pursuant to CERCLA section 107 and
 Clean Water Act (CWA) section
 311(f)(5) attempt to water down the
 direct statutory command in those
 provisions  that the trustees "shall"
 assess damages and carry out other
 trusteeship obligations. Another
 commenter suggested that the language
 in §§ 300.600(a) and 300.615(c) that is
 discretionary or unclear should be
 changed to state that the trustees "shall"
 carry out their duties established in
 GERCLA section 107(f) and CWA
 section 311(f)(5).
  Section 107(f)(2)(A)  confers authority
 on federal trustees to "act on behalf of
 the public as trustees for natural
 resources under this Act and under
 section 311" of the Clean Water Act and
 to "assess damages" for federal natural
 resource injury, destruction or loss for
 purposes of CERCLA and section 311 of
 the Clean Water Act. Neither CERCLA
 nor the Clean Water Act require trustees
 to perform any other function. Other
 actions which the trustees may perform
 pursuant to CERCLA and the Clean
 Water Act are discretionary, to be
 performed as necessary on a case-
 specific basis.
  The language in CERCLA section
 107(f) and section 311(f)(5) of the Clean
 Water Act providing that the trustee
 "shall" act as trustee or "shall" assess
 damages does not require action by the
 trustee. Such language merely means
 that the trustee  or his delegee  are the
 only persons authorized to act as
 trustees or to assess damages.
Performance of the functions of a trustee
 is discretionary under CERCLA and the
 Clean Water Act, based on case-specific
 circumstances. Therefore, final
 § 300.615(c)(3) provides that trustees
 "may, pursuant to section 107(f) of
 CERCLA or section 311(f)(5) of the Clean
 Water Act, take the following or other
 actions as appropriate", including
 carrying out damage assessments. And
 as noted earlier, a trustee may choose to
 act under other authority in addition to
 sections 107 and 311.
  d. Coordination. A commenter urged
 EPA to insert additional language that
 encourages the lead agency to
 coordinate cleanup levels with natural
 resource damage assessments to the
 greatest extent possible.
  EPA has already done much of what
 the commenter asks in § 300.430(b)(7)
 (proposed as §  300.430(b)(6)). Pursuant
 to that section the lead agency shall, if
 natural resources are or may be injured
 by the release, ensure that state and
 federal trustees are promptly notified in
 order that the trustees may initiate
 appropriate actions, including those
 identified in subpart G of this part. The
 subsection further requires the lead
 agency to seek to coordinate necessary
 assessments, evaluations,
 investigations, and planning with state
 and federal trustees. As to coordination
 of cleanup levels, EPA believes that the
 decision as to whether selected cleanup
 levels  satisfy natural resource trustee
 concerns is a decision for the trustee to
 make.          :  •
  4. Funding. A commenter suggested
 that EPA, consistent with legal
 obligations, should construe sections
 lll(b)(2)(B) and 517(c) of SARA to allow
 funding of natural resource damage
 assessments. The commenter urged EPA
 to seek amendment of section 517, if it is
 not possible to provide funding under
 current law. The commenter also noted
 that many states cannot carry out this
 responsibility without financial support
 from the Fund.
  Section 517(c) of SARA prohibits
 expenditures from the Fund to pay
 trustees' claims for natural resources
 damage assessment and restoration of
 natural resources. The SARA conference
report  states, "[T]he conference
 agreement follows the House bill in
 deleting natural resource damage and
 assessment claims as a Superfund
 expenditure purpose." H.R. 99-962, 99th
 Congress, 2d Session, at 321 (October 3,
1986).
  As to the commenter's request that
EPA seek amendment of SARA to
permit funding of natural resource
damage assessments, EPA does not take
positions on proposed amendments to
statutes in rulemaking proceedings.
   5. Federal trustees—covenant not to
 sue. A commenter asserted that while
 the preamble to the proposed rule
 mentions that the OSC/RPMs "shall
 coordinate the federal trustees'
 participation in negotiations with PRPs
 as provided under section 122(j)(l)" (53
 FR 51461), the proposed rule does not
 reflect the language in section 122(j)(l).
 The commenter suggested that a new
 provision be included in § 300.615 to
 provide for: (1) Notification to trustees
 by OSC/RPMs of negotiations with
 PRPs, and (2) covenants not to sue  for
 damages to natural resources under the
 trusteeship of a federal trustee. The
 commenter asserted that the proposed
 NCP does not cover section 122
 settlement provisions, but that
 consideration should be given to
 including the requirement in section
 122(j) regarding federal natural resource
 trustee notification of proposed
 settlements with PRPs. The commenter
 added that early decisions as to the
 nature and amount of involvement  must
 be made on the basis of available
 information, and that late notification
 and involvement may interfere with the
 ability to pursue natural resource trust
 authorities under CERCLA.
   CERCLA section 122(j)(l) provides
 that "[WJhere a release or threatened
 release of any hazardous substance that
 is the subject of negotiations under this
 section may have resulted in damages to
 natural resources under the trusteeship
 of the United States, the President shall
 notify the federal natural resource
 trustee of the negotiations and shall
 encourage the participation of such
 trustee in the negotiations." The final
 rule (§ 300.615(d)(2)) already provides
 for trustee participation in negotiations
 between the United States and PRPs to
 obtain PRP-financed or PRP-conducted
 assessments and restorations for injured
 resources or protection for threatened
 resources. The final rule is consistent
 with statutory requirements in CERCLA
 section 122(j).
   The authority of the federal trustees
 contained in proposed and final NCP
 § 300.615(d)(2) to negotiate with a PRP
 already includes discretionary authority
 to agree to a covenant not to sue for
 natural resource damages. However, to
 clarify that authority EPA will revise
 § 300.615(d)(2) to read that federal
 trustees have authority to agree to
 covenants not to sue, as appropriate.
 CERCLA section 122(j)(2) provides for
 such discretionary covenants if the PRP
 agrees to undertake appropriate actions
necessary to protect and restore the
natural resources damaged by the
release or threatened release of
hazardous substances.

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128 	Federal Register / Vol.  55, No. 46 / Thursday,  March 8, 1990  /  Rules and Regulations
  6. States. A commenter suggested that
the lead agency should have the
responsibility for notifying state trustees
of negotiations with PRPs, and
encouraging state trustees to participate
!n settlement negotiations. The
commenter suggested that § 300.615(c)
should be revised to acknowledge that
state trustees may participate in
negotiations as well.
  Section 300.520 of the NCP
implements CERCLA section
121(f)(l)[F). Section 300.520{a) of the
NCP already requires EPA to notify
states of response action negotiations to
ba conducted by EPA with PRPs during
each fiscal year. After notification, the
state then has the responsibility to
notify its trustees of such negotiations
and to encourage their participation.
Pursuant to § 300.520{b), the state, in
turn, must notify EPA of such
negotiations in which it intends to
participate. Finally, pursuant to
§ 300.520(c), the state may be  a party to
such settlements. Given the foregoing
provisions, EPA believes the
recommended rule change is not
necessary.
  7. Damages. A commenter suggested
that the word "damage" should be
changed to "injury" when referring to
"damage" to natural resources. While
the relevant statutes and regulations use
Ihc terms "damages" and "injury" in
different contexts, EPA uses the terms
as follows for purposes of the NCP.
"Damages" means the amount of money
sought by the natural resource trustees
as compensation for injury to,
destruction of, or loss of natural
resources, as set forth in section 107(a)
or lll(b) of CERCLA. Pursuant to
CERCLA section 107(a), damages also
include the reasonable costs of
assessing injury, destruction or loss of
natural resources. "Injury" means a
measurable adverse change, either long-
or short-term, in the chemical or
physical quality or the viability of a
natural resource resulting either directly
or indirectly from exposure to a
discharge of oil or the release of a
hazardous substance. "Injury"
encompasses injury, destruction, or loss
of natural resources.
  Final rule: Proposed §§ 300.615,
300.1350), 300.160(a)(3), 300.305(d),
300.315(0), 300.410(g) and 300.430(b)(7)
are revised as follows:
  1. Section 300.615(a) has been revised
to read: "Where there are multiple
trustees * * *  they should coordinate
and cooperate in carrying out these
responsibilities."
  2. In final § 300.615(b), the word
"damages" has been changed to
"injuries."
  3. The introduction to § 300.615(c) has
been changed to read as follows: "Upon
notification  * * * trustees
may * * * pursuant to section 107(f) of
CERCLA or section 311(f)(5) of the Clean
Water Act take the following or other
actions as appropriate: * *  *."
  4. The introduction to § 300.615(d] is
revised to read: "The authority of
federal trustees includes, but is not
limited to the following actions: *  *  *."
  5. Section 300.615[d)(2) has been
revised to read: "Participate in
negotiations * * * threatened
resources and to agree to covenants not
to sue, where appropriate."
  6. The introduction to § 300.615(e] has
been revised to read: "Actions which
may be taken by any trustee pursuant to
section 107(f) of CERCLA or section
311(f)(5) of the Clean Water Act include,
but are not limited to, any of the
following: * * *."
  7. Sections 300.135(j), 300.305(d),
300.410(g) and 300.430(b)(7) are revised
to delete the phrase "as appropriate"
and to state that "the OSC or RPM shall
seek to coordinate all response activities
with the natural resource trustees."
  8. A new sentence is added to the end
of § 300.315[c) on OSCs making
information available to trustees.
  9. The word "trustees" is added to
§ 300.160(a)(3).

Subpart H—Participation by Other
Persons
  The focus of this subpart is on those
authorities of CERCLA that allow
persons other than governments to
respond to releases and to recover those
response costs. Although this subpart is
new, it revises and consolidates
provisions from current NCP § 300.25 on
Nongovernment Participation and
§ 300.71 on Other Party Responses into
one place in the NCP. Subpart H also
incorporates the new authorities from
CERCLA, as amended, which address
participation by other persons. The
following discusses comments received
on the proposed Subpart H and EPA's
responses.
  Name: Section 300.700(c). Consistent
with the NCP.
  Proposed rule: The proposed section
revised and consolidated provisions
from the 1985 NCP (§ § 300.25 and
300.71). The proposed section provided
that any person may undertake a
response action to reduce or eliminate a
release of a hazardous substance. It also
set out a list of those NCP provisions for
which compliance would be required in
order for a response action by "other
persons" (i.e., persons who are not the
federal government, a state, or an Indian
tribe) to be considered "consistent with
the NCP" for purposes of cost recovery
actions under CERCLA section 107.
  Response to comments: 1. Substantial
compliance. EPA received diverse
comments on its proposal to set out
requirements that must be met by
private parties in order for their actions
to be"consistent with the NCP" for the
purposes of cost recovery under
CERCLA section 107. Some commenters
approved of the list of requirements,
noting that such a list affords parties
some certainty as to what type of
response actions will qualify for cost
recovery under section 107; indeed,
commenters suggested that they would
not undertake cost recovery actions if
they did not have clear guidance on
what constitutes "consistency with the
NCP."
   On the other hand, an even greater
number of commenters objected to
EPA's proposal to define "consistency
with the NCP" as a long list of largely
procedural requirements,  and urged EPA
not to address the issue. A large number
of commenters expressed the concern
that defendants in  private cost recovery
litigation will seize on EPA's list as the
definitive criteria for evaluating
consistency with the NCP, and search
for even minor discrepancies between a
private party's actions and the criteria
in an effort to block a cost recovery
action. The effect will be  to discourage
private party cleanups. They request
that EPA leave the question of
"consistency with the NCP"  to case-by-
case adjudication in the federal  courts.
However, assuming the NCP does
address this issue, they suggested that
the rule should be  clear that all of the
listed elements of NCP consistency need
not necessarily be met in a given case,
and that substantial compliance with a
given element is sufficient.
   Several other commenters argued that
EPA's criteria do not belong in the NCP
as binding rules. A more appropriate
forum is a non-binding guidance
document, which can be applied to the
facts of a particular action. Another
commenter suggested that "consistency
with the NCP" does not require  the
replication of the entire governmental
cleanup process. Activities that
contribute to an effective response
action should qualify for reimbursement,
even if they do not follow precisely each
of the requirements listed in subpart H
or do not result in  a complete cleanup.
   In response, EPA is sympathetic to the
perspectives expressed in the comments.
EPA believes that  it is important to
encourage private parties to perform
voluntary cleanups of sites, and to
remove unnecessary obstacles to their
ability to recover their costs from the

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              Federal Register / Vol.  55, No. 46  /  Thursday. March 8, 1990  / Rules  and Regulations	129
 parties that are liable for the
 contamination. At the same time, EPA
 believes it is important to establish a
 standard against which to measure
 cleanups that qualify for cost recovery
 under CERCLA,  so that only CERCLA-
 quality cleanups are encouraged. EPA
 has attempted to accomplish both of
 these somewhat divergent goals.
   EPA has continued the tradition  of
 identifying the universe of requirements
 which are potentially relevant to private
 party actions (this would not include
 requirements that apply to
 intergovernmental consultation, the
 waiver of applicable requirements  of
 other laws, and other provisions that are
 not appropriate for consideration by
 private parties).29 However, EPA agrees
 with commenters that this list should
 not be construed as a fixed list of
 requirements that must be met in order
 for a party to qualify for cost recovery
 under CERCLA section 107(a)(4)(B).
 Thus, in the final rule (§ 300.700(c)(3)),
 strict compliance with that list of NCP
 provisions is not required in order to be
 "consistent with the NCP"; the list is
 provided in § 300.700(c)(5)-(7) as
 guidance to private parties on those
 requirements that may be pertinent to a
 particular site.
   Instead, in evaluating whether or not
 a private party should be entitled to cost
 recovery under CERCLA section
 107(a)(4)(B), EPA believes that
 "consistency with the NCP" should be
 measured by whether the private party
 cleanup has,, when evaluated as a
 whole, achieved  "substantial
 compliance" with potentially applicable
 requirements, and resulted in a
 CERCLA-quality cleanup. (CERCLA
 section 107(a)(4)(B) requires that the
 private party also show that the costs
 incurred were "necessary" cleanup
 costs.)
   EPA believes that this formulation
 achieves two critical goals. First, it
 responds to commenters' concerns that
 rigid adherence to a detailed set of
 procedures should not be required in
 order to recover costs under CERCLA
 for private party  cleanups. In addition,
 the approach taken today protects EPA's
 interest in ensuring that the benefit  of a
 right of action under CERCLA section
 107(a)(4)(B) should only be available for
 environmentally sound cleanups
-consistent with CERCLA requirements;
  29 There are a number of NCP requirements that
do not make sense for private parties, such as the
requirements for state assurances (§ 300.510), or
other provisions related to use of the Fund;
similarly, there are self-imposed restrictions on
governmental action that are not relevant to private
actions, such as the requirement that a site be listed
on the NPL before Fund-financed remedial action
may be taken (§ 300.425{b)(l)).
 in essence, the more lenient "substantial
 compliance" test should not be an
 invitation to perform low quality
 cleanups.
   In order to achieve a "CERCLA-
 quality cleanup," the action must satisfy
 the three basic remedy selection
 requirements of CERCLA section
 121(b)(l)—i.e., the remedial action must
 be "protective of human health and the
 environment," utilize "permanent
 solutions and alternative treatment
 technologies or resource recovery
 technologies to. the maximum extent
 practicable," and be "cost-effective"—
 attain applicable and relevant and
 appropriate requirements
 (ARARs)(CERCLA section 121(d)(4)),
 and provide for meaningful public
 participation (section 117). EPA believes
 that these statutory requirements are
 necessary to the achievement of a
 CERCLA-quality cleanup. (Although
 public participation is not an explicit
 requirement in section 121 on remedy
 selection, EPA believes that it is integral
 to ensuring the proper completion part
 of any CERCLA cleanup action, as
 discussed below.) These requirements
 are not new additions from the proposed
 rule. Under the proposal, private parties
 were required to strictly comply with the
 detailed provisions of the NCP,
 including provisions codifying these
 statutory mandates (see final rule
 § 300.430(fJ(l)(ii)(A) (protectiveness), (B)
 (ARARs), (D) (cost-effectiveness), (E)
 (permanence/treatment), and
 § 300.430(f)(3) (public participation)).
 EPA has simply issued a substantial
 compliance test while at the same time
 identifying several requirements that
 must be met in order to  achieve
 substantial compliance.
  EPA's  decision to require only
 "substantial" compliance with
 potentially applicable requirements is
 based, in large part,  on the recognition
 that providing a list of rigid
 requirements may serve to  defeat cost
 recovery for meritorious cleanup actions
 based on a mere technical failure by the
 private party that has taken the
 response action. For example,  EPA does
 not believe that the failure of a private
 party to provide a public hearing should
 serve to defeat a cost recovery action if
 the public was afforded an ample
 opportunity for comment. A substantial
 compliance test is appropriate as well in
 light of the difficulty of judging which
potentially relevant NCP provisions
must be met in any given case. For
 example, in most cases,  a full range of
 alternative remedial options should be
analyzed in detail as part of the
feasibility study ("FS"), yet in
appropriate cases, a "focused" FS—
 under which fewer alternative options
 would be studied—may be performed,
 consistent with the NCP (see
 § 300.430(e)(l)). EPA also recognizes
 that private parties generally will have
 limited experience in performing
 cleanups under the NCP, and thus may
 be unfamiliar with the detailed practices
 and procedures in this rather long and
 complex rule; an omission based on lack
 of experience with the Superfund
 program should not be grounds for
 defeating an otherwise valid cost
 recovery action, assuming the omission
 does not affect the quality of the
 cleanup.30
   The decision to define a substantial
 compliance standard for private party
 cost recovery actions under CERCLA
 section 107(a)(4)(B) is within EPA's
 discretion. CERCLA section 107(a)(4)(B)
 provides that private persons may
 recover only those costs
 "incurred *  *  * consistent with the
 NCP," and section 105(c) provides that
 the President shall promulgate  and
 revise the NCP; thus, the statute directs
 the President to establish requirements
 for private cost recovery actions. In
 exercising that authority, EPA could
 have taken several different approaches
 in the NCP: Establish identical
 requirements for private and
 governmental actions; establish a subset
 of NCP provisions with which private
 party cleanups must comply; or
 alternatively, set a general standard of
 compliance (e.g., "substantial
 compliance") with certain requirements
 for private party cleanups. In response
 to comments, EPA has today elected to
 pursue the third option.
  EPA attempted to identify those NCP
 provisions with which'compliance
 would not be necessary to meet the
 "substantial  compliance" test, but
 concluded that a hard line cannot be  '
 drawn on these questions, given the
 considerable variability in types of
 response actions, potential ARARs,
 communities, etc. EPA found that what
 may be a significant deviation from
 procedures under one set of
 circumstances may be less  serious in
 another (for example, some types of
 contaminants may be susceptible to
 only a limited number of remedial
 technologies, resulting in a more limited
  30 EPA does not believe that this substantial
compliance standard will lead to low quality
cleanups, especially in light of the express
requirement for a "CERCLA-quality cleanup."
However, it should be noted that even where a site
has been cleaned up "consistent with the NCP,"
EPA has the authority under CERCLA to take
appropriate action at the site should future releases
be discovered or future conditions so warrant. See
CERCLA sections 104(a)[l), 105(e), 121(c) and 122(f).

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Federal Register / Vol.  55, No. 46 /  Thursday, March  8, 1990 / Rules  and  Regulations
analysis of alternatives, and some
communities may express no interest in
a site, resulting in fewer public
meetings). Thus, this determination is
best left to the courts for a case-by-case
determination. A private party can, of
course, eliminate any risk or uncertainty
by meeting the full set of requirements
identified by EPA as potentially relevant
to private actions (see § 300.700(c)(5)-
(7)).
  2. Not inconsistent with the NCP. One
commenter asked why § 300.700(c)
retains the language "not inconsistent
with the NCP" when EPA attempted to
revise this language elsewhere. Other
commenters opposed EPA's proposal to
delete the requirement in the current
NCP (§ 300.71(a)(2)) that government
response actions must comply with the
same list of NCP provisions as private
parlies in order to be "not inconsistent
with the NCP." They argued that private
party "consistency" requirements
should be streamlined and  apply to both
private parties and governmental
entities. Another commenter suggested
that a section in the NCP on the meaning
of the phrase "not inconsistent with the
NCP," would offer significant
clarification on what constitutes
CERCLA responses and lead to the most
effective use of limited federal funds at
all sites. Several commenters claimed
that EPA applies a double standard by
specifying steps a private party must
take but not those that a governmental
body must take.
   In response, CERCLA section 107(a)(4)
specifies a different burden of proof for
actions brought by the federal
government, states, or Indian tribes than
for actions brought by private parties.
 Governmental response costs may be
 recovered from responsible parties
 unless they are shown to have been
 incurred "not consistent with  the NCP."
 CERCLA section 107(a)(4)(A). By
 contrast, private parties may only
 recover other "necessary" costs incurred
 "consistent with the NCP." The final
 rule reflects this statutory  distinction.
   As  to the commenters' request that
 EPA further define when costs are "not
 inconsistent with the NCP," several
 points are important to note. First, the
 CERCLA statute itself confirms that the
 President should not be held to a
 standard of strict adherence to all
 provisions of the NCP. Section 121(a)
 states:
   The President shall select appropriate
 remedial actions determined to be necessary
 to be carried out under section 104 or secured
 under section 106 which are in accordance
 with this section and, to the extent
 practicable, the national contingency plan,
 and which provide for cost-effective
 response. * *  * [Emphasis added.]
                            The legislative history confirms that this
                            section has special meaning in the
                            context of the government's right to
                            recover costs "not inconsistent with the
                            NCP." As Senator Chafee stated in the
                            debate over the 1986 SARA
                            Amendments,
                              The legislation states that remedial actions
                            selected by the President shall, to the extent
                            practicable, comply with the National
                            Contingency Plan [NCP]. This language is
                            intended to assure that alleged failures to
                            comply with the NCP shall not be available
                            as a defense to any liability in an
                            enforcement proceeding brought under
                            section 106 or 107. [Emphasis added.]
                            132 Cong.  Rec. S14925 (daily ed., Oct. 3,
                            1986].31
                              Consistent with this language, EPA
                            does not believe that immaterial or
                            insubstantial deviations from the
                            detailed set of NCP provisions should
                            serve to defeat a cost recovery action,
                            whether federal or private (although it
                            may influence the amount of costs
                            allowed).  At the same time, EPA
                            believes that given the variability of
                            circumstances at Superfund sites, it is
                            impossible to define all cases (or to
                            establish a fixed rule) for which non-
                            compliance would be material. Thus,
                            whether or not governmental costs can
                            be shown to be "not inconsistent with
                            the NCP"  should be judged by a review
                            of the cleanup action as a whole, not
                            based on  a simple review of the cleanup
                            against the list of NCP provisions. EPA
                            believes that the application of these
                            principles is properly reserved to  the
                            courts for resolution on a case-by-case
                            basis.
                              The concept that de, minimis and
                            harmless  deviations from specific NCP
                            provisions should not defeat a cost
                            recovery action is consistent with long-
                            standing judicial principles of harmless
                            error and materiality. It is also
                            consistent with the tenor and intent of
                            the CERCLA statute, that parties  who
                            are liable for the contamination should
                            be held responsible for remediating it;
                            where a governmental or private  party
                            undertakes the cleanup (in the face of a
                            lack of action by the responsible party),
                            it would be inequitable to allow the
                            responsible party to use minor
                            procedural discrepancies to defeat
                            reimbursement for an environmentally
                             sound cleanup.
                               3. Role of the courts. Several
                             commenters asserted that the criteria
                             proposed by EPA attempted to limit the
                             discretion of federal courts in
                               31 The statement by Sen. Chafee goes on to note
                             that "[t]he language is not intended to provide any
                             independent authority to EPA or other agencies to
                             fail to apply, to overlook, ignore or waive any
                             standard, requirement, criteria or limitation
                             established under the law." Id,
determining what constitutes substantial
compliance with the NCP for making
CERCLA cost recovery awards. They
argue that EPA should not by regulation
attempt to establish matters that may be
in dispute entirely between private
parties.
  In response, section 105 of CERCLA
provides EPA with considerable
discretion in establishing its plan for
responding to releases of hazardous
substances, pollutants and
contaminants. There is no requirement
that EPA promulgate a rule that would
contain identical standards for
governmental and private party
response actions, and indeed, as
discussed above, that would not make
sense in areas such as
intergovernmental coordination and
Fund balancing. EPA has also noted that
due to the variability of site
circumstances, some provisions may or
may not be applicable in specific cases,
and the failure to comply with one or
more provisions may or may not be
material. Thus, this rule defines actions
as "consistent with the NCP" for the
purposes of section 107(a)(4)(B), when
the private party cleanup, evaluated as
a whole, is found to have achieved
"substantial compliance" with specified
requirements and resulted in a CERCLA-
quality cleanup; although a provision-
by-provision comparison is not required,
EPA has provided a list of those NCP
sections that are potentially relevant to
private persons. Thus, the final rule
provides a standard against which to
measure "consistency with the NCP,"
but does not eliminate the very
important role of the courts in deciding,
on a case-specific basis, what costs
should be awarded to the party that has
undertaken the cleanup.
   As to the comment that EPA should
not issue regulations on this matter, EPA
disagrees that the interpretation of
 section 107(a)(4)(B) is a matter "entirely
between private parties." First, the
government has a strong interest in
 ensuring that cleanup actions that derive
 a benefit from CERCLA section
 107(a)(4)(B)—a statute under the charge
 of EPA—are performed in an
 environmentally sound manner; thus, it
 is appropriate to provide a standard or
 measure of consistency with the NCP.
 EPA also believes that it is an important
 public policy to encourage private
 parties to voluntarily clean up sites, and
 to remove unnecessary obstacles to
 their recovery of costs. Further, as noted
 above, CERCLA directs the President to
 promulgate and revise NCP
 requirements (section 105(c)), and then
 directs that those requirements should
 be used as the standard for private cost

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            Federal Register / Vol.  55. No. 46 / Thursday, March 8, 199O / Rules  and Regulations	131
recovery (section 107(a)(4)); thus,
Congress contemplated that EPA would
issue standards to be used for cost
recovery actions.
  4. Retroactivity. Some commenters
expressed the concern that PRPs may
attempt to impose the new definition of
"consistency with the NCP" on private
cleanups that are already complete or
underway. They assert that it should be
made clear that the rule does not apply
to private response actions initiated
prior to the effective date of the revised
NCP.
  In response, EPA does not believe that
it is appropriate to grandfather cleanups
that are already "underway." Such a
position would result in an exemption
from this rule for actions that were
initiated prior to the effective date,  but
which may continue for years (such as
long-term ground-water remediation
actions). Further, EPA does not believe
that this issue will pose a serious
problem to private parties for several
reasons. First, the rule's requirement of
"substantial compliance" with
potentially applicable NCP requirements
affords private parties some latitude in
meeting the full set of revised NCP
provisions. Second, private parties have
been on notice for over a year that EPA
intended to require compliance with the
principal mandates of CERCLA—those
required for a "CERCLA-quality
cleanup," as discussed above—as a
condition for being "consistent with the
NCP." (See CERCLA section 105(b),
directing EPA to incorporate the SARA
requirements into the NCP; and the
December 21,1988 proposed NCP (at
§ 300.700(c)(3)(i)(H), 53 FR at 51513),
proposing to list among the requirements
for "consistency with the NCP"
compliance with § 300.430(f)(3)(ii)
(protectiveness and ARAR compliance),
(f)(3)(iii) (permanence and treatment,
and cost-effectiveness), and (f)(2)
(public participation) (53 FR at 51507)).
  Finally, the requirement for
"consistency with the NCP" has been a
precondition to cost recovery under
CERCLA section 107 since the passage
of the statute in 1980, and pursuant to
the 1985 NCP, consistency with the NCP
was measured by compliance with a
detailed list of NCP requirements; thus,
on-going actions should already comply
with the 1985 provisions.
  5. Public participation. One
commenter asserted that EPA is
misapplying statutory requirements by
stating that private parties must engage
in the full panoply of public
participation procedures under
CERCLA, even though the statute
imposes these requirements only on
EPA. Because no governmental actions
are involved, no public process should
be required as a precondition of cost
recovery.
  EPA disagrees. Public participation is
an important component of a CERCLA-
quality cleanup, and of consistency with
the NCP. The public—both PRPs and
concerned citizens—have a strong
interest in participating in cleanup
decisions that may affect them, and
their involvement helps to ensure that
these cleanups—which are performed
without governmental supervision —are
carried out in an environmentally sound
manner. Thus, EPA has decided that
providing public participation
opportunities should be a condition for
cost recovery under CERCLA. The rule
does not, however, require rigid
adherence to a set of procedural
requirements. For instance,
§ 300.700(c)(6) (proposed NCP
§ 300.700(c)(3)(ii)(B)) provides that state
or local public participation procedures
may be followed, consistent with the
NCP, if they provide a substantially
equivalent opportunity for public
involvement.
  6. CERCLA section 103 reporting
requirement. Another commenter
suggested that EPA has misapplied the
statutory notification requirements in
the proposed NCP. According to the
commenter, the proposal implies that
any violation of CERCLA's requirement
to report certain hazardous substance
releases to the National Response
Center (NRG) under CERCLA section
103(a) is grounds for holding  a
subsequent response action inconsistent
with the NCP. The commenter suggests
that there is no substantive connection
between the reporting requirement and
the adequacy of a response action.
  In response, the NCP requires any
person hi charge of a facility or vessel to
notify the NRC of any releases of
hazardous substances into the
environment over a defined reportable
quantity (see § 300.405(b)). EPA believes
that this NCP requirement is  integral to
EPA's decision as to whether a
government-funded or -supervised
cleanup is necessary at a site. Thus, the
failure to report such releases to the
NRC is an appropriate factor to consider
in evaluating whether a private party
has acted consistent with the NCP.
  7. Specific comments on consistency
with the NCP. One commenter
suggested that rather than cross-
referencing overly broad sections of the
NCP to describe compliance for cost
recovery purposes, § 300.700(c)(3)
should repeat or paraphrase each
requirement that must be met.
  As explained above,  the rule attempts
to aid private parties by identifying
those provisions that may be relevant to
voluntary cleanup actions. Repeating
each such provision in § 300.700 would
significantly complicate and lengthen
the section unnecessarily, as the reader
is clearly referred to the appropriate
sections by citation. Further, EPA has
made clear that rigid adherence to every
potentially relevant provision is not
required in order to be consistent with
the NCP.
  Another commenter noted that for
several of the cross-referenced sections,
determining which subsection is
"pertinent to the particular response
chosen for the particular facility" is very
difficult.
  In response, two general points
require clarification. First, as a threshold
matter, it appears that the commenter
may be confused by the roles and
responsibilities of "other persons" and
the "lead agency." In a  private party
response action, the private party may
perform most of the functions of a lead
agency, except of course, waivers of
applicable laws, permit waivers, and
functions related to use of the Fund
(EPA has identified those sections of the
NCP that are potentially relevant to
private party cleanups in § 300.700(c)
(5)-(7)); there is no support agency in a
private party cleanup action.
  It is also important to repeat that rigid
compliance with every  potentially
applicable NCP provision is not required
to establish that a private cleanup
action was "consistent  with the NCP";
rather, the substantial compliance test
outlined above should be applied. With
these two caveats, EPA has attempted
to respond to the commenters' concerns
regarding the potential  applicability of
particular sections of the NCP to private
party cleanup actions.
  The following are specific examples
raised by the commenter where more
specificity on what is required for
recovery under section  107 is requested.
EPA's response is included in each
section.
  a. Natural resource trustees. Must
private parties coordinate with trustees
of affected natural resources to
determine the injury to  these resources
(§ 300.160(a)(3)) or to initiate
appropriate actions (§ 300.410{g))?
  In response, § 300.160(a)(3) requires
the communication of information to
natural resource trustees that may assist
in the determination of actual or
potential injury to the resources. Section
300.410(g) requires notification to the
trustees when natural resources have
been  or are likely to be damaged, and
requires the OSC or lead agency to seek
to coordinate, as appropriate, with
trustees for the performance of natural
resource damage assessments,
evaluations, investigations, and

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132        Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990  /  Rules and Regulations
planning. Both sections are within the
universe of requirements that may
potentially apply to private party
cleanup actions, and compliance with
them may be important to ensuring a
cleanup consistent with the NCP.
  b. Technology. What precisely must
private parties do to "encourage the
Involvement and sharing of technology
by industry and other experts"
(§ 3Q0.400(c)(7))?
  In response, § 300.400(c)(7) requires
the lead agency, to the extent
practicable, to encourage the
involvement and sharing of technology
by industry and other experts. EPA
believes that other persons should seek
the most appropriate technology and
expertise for a response action.
  a ARARs and TBCs. Must private
parties coordinate with the lead and
support agencies to identify ARARs, and
ensure that the two agencies notify each
other of the ARARs they identified
(1300.400{g)(i) and (5))? What about
TBCs (§ 300.400(g)(3))7
  In response, § 300.400(g)(l) and [2)
require the identification of applicable
requirements, and relevant and
appropriate requirements, respectively,
and specify the criteria upon which to
determine whether requirements are
ARARs. Section 300.400(g)(5) requires
the lead agency and support agencies to
notify each other as to identified
ARARs. Although these sections provide
no specific consultation process for
coordination of ARARs where there is
no support agency, EPA encourages
private parties to notify the agency
responsible for oversight, if any, of the
ARARs they have identified, in order to
ensure that such requirements have
been properly identified, and in order to
ensure that a CERCLA-quality cleanup
will be achieved (which includes the
attainment of ARARs). Section
300.400{g)(3) simply states that lead and
support agencies may, as appropriate,
identify TBCs for a particular release
and defines what TBCs are; here again,
however, it may be advisable for private
parties to seek the advice of the relevant
agency as to which guidance documents
should usually be followed*
  d. Engineering evaluation/cost
analysis (EE/CA). If PA and SI reports
are required for removals, why isn't an
EE/CA also required (§ 300.415(b)(4))?
  In response, the preamble to the
proposed rule correctly excluded
§ 300.415(b)(5)—relating to time and
dollar limitations on removal actions—
from the list of sections that may be
relevant to cleanups by other persons
(53 FR at 51461). However, due to a
typographical error, proposed rule
§ 300.700(c)(3)(i)(F) mistakenly excluded
§ 300.415{b)(4)—relating to EE/CAs—
from the list of potentially relevant
provisions. This error has been
corrected in today's final
§ 300.700[c)(5)(vi).
  e. ARARs—exigencies. How does the
private party determine that the
"exigencies of the situation" prevent the
attainment of ARARs during removals
(§ 300.415Q) (renumbered as § 300.415(1)
in the final rule)?
  In response, one of the requirements
for cost recovery under CERCLA section
107(a)(4)(B), as set out in today's rule, is
to attain a CERCLA-quality cleanup,
which includes the requirement to attain
ARARs—both "applicable
requirements" and "relevant and
appropriate requirements." However,
the NCP allows governmental agencies
to attain or waive ARARs; in the private
context, this possibility is more limited.
  Governmental actions are taken under
the authority of CERCLA, and therefore
may invoke ARARs waivers under
CERCLA section 121(d)(4). However,
private party actions are not carried out
under CERCLA authority but simply
seek to take advantage of a right of cost
recovery provided under CERCLA
section 107 for certain types of actions;
therefore, waivers of applicable
requirements  of federal or state law are
unavailable in such private party
cleanups. Similarly, the concept of
complying with applicable requirements
to the extent practicable for removal
actions, applies only to actions taken or
secured by the President (or his
authorized representative). (In
.emergency situations where an
immediate response action is required
by a private party, noncompliance with
an applicable requirement should not
necessarily bar a claim for cost
recovery.)
  Private parties shall also comply with
relevant and appropriate requirements.
However, relevant and appropriate
requirements do not legally apply of
their own force to the private party
actions  (see § 300.5); thus, where one of
the waivers in § 300.430(f)(l)(ii)(C) can
be justified, it may be appropriate for a
private  party to waive a relevant and
appropriate requirement. Similarly,
when undertaking removal actions, a
private  party need only comply with
relevant and appropriate requirements
"to the extent practicable"; best
professional judgment should be used in
determining which relevant and
appropriate requirements can
practicably be met. Private parties also
have some discretion to decide whether
requirements are relevant and
appropriate under the circumstances of
the release, using the criteria set out in
§ 300.400(g)(2).
  8. Recovery pursuant to other federal
or state law. A commenter suggested
that it should be made clear in
§§ 300.700(c)(l) and (2) that those
sections only apply to section 107(a)
cost recovery actions and not to cost
recovery actions taken pursuant to other
federal or state law. The commenter
believes that the requirement of
consistency with the NCP for tens of
thousands of non-NPL, non-CERCLA
sites and spills for entitlement to cost
recovery from responsible parties will
discourage many cleanups normally
performed under state statutes.
  Another commenter believed that the
NCP should recognize that cleanups
done pursuant  to non-CERCLA federal
or state authority can be consistent with
the NCP. This could be accomplished in
one or more of the following ways. First,
as part of its deferral policies, the NCP
could state that cleanups qualifying for
deferral are presumptively consistent
with the NCP. The commenter stated
that deferral of an NPL site to a state
government should mean that the
remedial action is considered to be in
conformance with the NCP for the
purpose of cost recovery. This approach
would provide an incentive for prompt
settlement. Second, § 300.700(c) could be
revised to clarify that the  list of NCP
provisions with which a private cost
recovery plaintiff must comply includes
the substantially similar provisions of
other authorities.
  In response to the first comment, it is
important to note that CERCLA section
107(a)(4)(B) does not require private
parties to conduct cleanups consistent
with the NCP; rather, it establishes a
right of action under CERCLA for cost
recovery in those cases where non-
governmental parties have incurred
necessary response costs  consistent'
with the NCP. The result of not meeting
this standard is that cost recovery under
CERCLA may not be available;
however, this does not mean that the
action may not proceed, or that cost
recovery may not be available under
other federal or state law. Of course,
even if a party takes a cleanup action
under an authority other than CERCLA
(e.g., RCRA corrective action), it may
have a right of cost recovery under
CERCLA section 107 if the action was a
necessary response to a release of
hazardous substances, and was
performed consistent with the NCP.
  On the deferral issue, the decision by
EPA to defer a site from listing on the
NPL for attention by another authority
doe