UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
AQS 20 1984
of nee OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDW OSWER Directive 9360.0-3
SUBJECT: Transmittal of Superfund Removal Procedures Revision Number Two
(Formerly Superfund Removal Guidance Revision Number One)
FRCM: William N. Bedenan, Jr., Director
Office of Emergency and Remedial
TO: Addressees
Attached is the Superfund Removal Procedures Revision Number Two
which supercedes the Superfund Removal Guidance Revision Number One. The
revision is largely procedural in nature and only addresses policy insofar as
it clarifies the purpose or intent of the procedures. This document is to be
considered as supplementary to the Superfund Implementation Plan dor FY85
which will be issued in final form this summer. This revision is designed
to provide Headquarters and Regional personnel with updated information on
policies and procedures that affect the conduct of removal actions. The
document contains the following additional changes:
o Section C; Initiating Removal Actions - This section contains
a number of significant changes. First, an Immediate Removal
Action Memorandum replaces the previously-used 10-point document
for requesting and approving immediate removals. Second, the
Regional Administrators' authority for removals was expanded
significantly on April 16, 1984, pursuant to new delegations of
authority signed by the Deputy Administrator. These changes are
incorporated in Section C. Third, the decision framework has
been modified to reflect the use of the action memorandum and the
new delegations. Fourth, the section includes new information on
processing ceiling increases, and, fifth, it gives detailed
instructions on cost share calculations. Please note that
information on planned removals has been retained for use until
revisions to the National Contingency Plan are finalized.
Section D: Removal Contracting Procedures - This section has been
completely revised because of the implementation of the Emergency
Response Cleanup Services (ERCS) contracts. It describes how GSCs
can access the ERCS contracts. ERCS contractors may be used for
both immediate and planned removals, it also describes procedures
for procurement outside the ERCS system, and includes information
on contractor oversight.
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o Section H: Financial Management - Changes to financial management
procedures brought about by fund decentralization are described in
this section. It describes procedures for both ERCS and non-ERCS
accounting.
o Section J; State Role - Since the Removal Guidance was issued in
December 1982, policy on the use of cooperative agreements and
Superfund State Contracts has been clarified and is summarized in
this section.
o Section K; Securing Private Party Response - This section
summarizes current policy and guidance and notes that OWPE has
developed further guidance on the use of administrative orders
for immediate removals.
o Section O; Role of Other Federal Agencies - Replacing the former
Section N on the Coast Guard, this section now discusses the role
of all other Federal agencies in removal responses at non-Federal
facilities. It lists each agency's technical capabilities and
expertise, highlights the authorities delegated to the USCG and
FEMA and describes administrative procedures for obtaining and pay-
ing for another agency's involvement in removal response activities.
Finally, the document contains several new sections entitled Response
at Federal Facilities, Requirements of Other Environmental Laws at Removals,
Native Anerican Lands, Radioactive Wastes, and Claims Against the Fund.
Addressees*
Environmental Services Division Directors
(Regions I, V-VIII and X)
Director, Office of Emergency and Remedial Response (Region II)
Director, Hazardous Waste Management Division (Region III)
Director, Air and Waste Management Division (Region IV)
Director, Toxics and Waste Management Division (Region IX)
Regional Superfund and OEM Coordinators
Jack McGraw, OSWER
Cora Beebe, OSWER
Susan Vbgt, OSWER
Bill Bedeman, OERR
Russ Wyer, HSCD
Karen Clark, OGC
Dan Berry, OGC
Gene Lucero, OWPE
Dove O'Connor, PCMD
John Sandy, FMD
Jin Lounsbury, OPPM
Sylvia Lowrance, OPFM
Bruce Englebert, OPFM
Kirk Sniff, OECM-Waste
Kenneth Biglane, HPSD
Marshall Schy, GAD
Fred Meadows, GOB
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SUFERFUND REMOVAL PROCEDURES
Revision #2
INTRODUCTION
1. Purpose
The purpose of this document is to provide EPA response officials with
uniform, Agency-wide, guidance on immediate and planned removal actions.
This document is to be considered as supplementary to the Superfund Implemen-
tation Plan for FY85 which will be issued in final form this surmner. In most
cases, response officials will be On-Scene Coordinators (OSCs), however, each
Region may designate appropriate program officials to carry out response and
related coordination and enforcement functions. Therefore, for the purposes
of this guidance, the term OSC shall mean any such Regionally designated
response official.
The basis for this document is the Comprehensive Environmental Response/
Compensation, and Liability Act of 1980 (GERCLA) (Public Law 96-510), commonly
referred to as "Superfund." This guidance shall augment policies contained in
the National Oil and Hazardous Substances Contingency Plan (NCP, 40 CFR 300)
for all removal actions taken pursuant to section 104 of CERCIA. Although
revisions to the NCP are being developed, this guidance reflects the existing
program under the currently published NCP. Therefore, information is presented
on planned removals for use until such time as the NCP revisions are finalized.
Additionally, new delegations of authority to the Regions were signed April 16,
1984, which increase Regional responsibilities for the removal program. New
procedures have been included to reflect these changes. Further, fund manage-
ment responsibilities are being decentralized and new financial management
procedures have been developed and are included in this guidance. Guidelines
for the remedial program have been provided separately.
2. Scope
Guidance provided in this document is essentially procedural and focuses
on implementation of the hazardous substances removal program for multi-media
(air, land, surface water, or ground water) releases from facilities and
vessels within EPA's area of responsibility. Specifically, the guidance
addresses the following topics:
Page
A. Types of Response Actions 5
B. Notification of Incidents 9
C. Procedures for Initiating Removal Actions 10
D. Removal Contracting Procedures on EPA Lead Projects 23
E. Special Exemptions to Limits on Removal Actions 26
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AUG 2 0 IS
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?age
F. Studies and Investigations Related to Response Actions
Under Section 104(b) 30
G. Allowable Costs For Removals 31
H. Financial Management Procedures 33
I. Reporting Requirements 36
J. State Role 38
K. Securing Responsible Party Responses 40
L. Wbrker and Visitor Health and Site Safety 43
M. Documentation for Cost Recovery 45
N. Response at Federal Facilities 46
O. Role of Other Federal Agencies at Non-Federal Facilities 47
P. Coordination with RRT and NRT 54
0. Provision of Alternate water Supply 55
R. Cost Control for Superfund Removal Actions 56
S. TAT Special Projects 58
T. Operation and Maintenance Costs 59
U. Community Relations Plans During Removal Actions 60
V. Requirements of Other Environmental Laws
at Removal Actions 62
W. Native American Lands 63
X. Radioactive Wastes 64
Y. Claims Against the Fund 65
Appendices
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The following abbreviations and acronyms are used in this document:
CERCIA Comprehensive Environmental Response, Compensation, and
Liability Pet of 1980
CDC Centers for Disease Control
CRP Community Relations Plan
DCN Document Control Number
DO Duty Officer
DOD Department of Defense
DOJ Department of Justice
EERU Environmental Emergency Response Unit
ERCS Emergency Response Cleanup Services
ERD Emergency Response Division
ERT Environmental Response learn
PCC Financial Control Center
FEMA Federal Emergency Management Agency
FIT Field Investigation Team
FMO Financial Management Officer
Fund Hazardous Substance Response Trust Fund (Superfund)
HHS Health and Human Services
HQ EPA Headquarters
LAG Interagency Agreement
JLC Justification for Limited Competition
JNCP Justification for Non-competitive Procurement
MOU Memorandum of Understanding
NCLP National Contract Laboratory Program
NCP National Oil and Hazardous Substances Contingency Plan
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NEIC National Enforcement Investigation Center
NPL National Priorities List
NRC National Response Center
NRT National Response Team
CGPR Office of Emergency and Remedial Response
OECM-W Office of Enforcement and Compliance Monitoring - Waste
O&M Operations & Maintenance
OMB Office of Management and Budget
OPA Office of Public Affairs
OSC On-Scene Coordinator
OSHA Occupational Health & Safety Administration
OSWER Office of Solid Waste and Emergency Response
OWPE Office of Waste Programs Enforcement
PCMD Procurement and Contracts Management Division
POLREP Pollution Report
PR Procurement Request
RFP Request for Proposal
RRC Regional Response Center
RRT Regional Response Team
SSC Superfund State Contract
SOW Statement of Work
TAT Technical Assistance Team
TPC Total Project Cost
USCG United States Coast Guard
USDA United States Department of Agriculture
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A. TYPES OF RESPONSE ACTIONS
CERCLA and the NCP define "removal" as the cleanup or removal of released
hazardous substances fron the environment; such actions as may be necessary
to monitor, assess and evaluate the release or threat of release of hazardous
substances; the offsite disposal of removed material; or the taking of other
such actions as may be necessary to prevent, minimize, or mitigate damage to
the public health or welfare or the environment, which may otherwise result
from such release or threat of release.
The NCP has further divided the statutory concept of removal into
immediate and planned removals as explained below.
1. Immediate Removal
Immediate removals are actions taken to prevent or mitigate immediate
and significant risk of harm to human life or health or to the environment
from actual or threatened events such as:
o Human, animal, or food chain exposure to toxic substances;
o Contamination of a drinking water supply;
o Fire and/or explosion;
o Similarly acute situations.
Immediate removal actions may include but are not limited to:
a. Collecting and analyzing samples to determine the source and
dispersion of the hazardous substance and documenting those samples for
possible evidentiary use;
b. Providing alternative water supplies;
c. Installing security fencing or other measures to limit access;
d. Controlling the source of the release;
e. Measuring and sampling;
f. Moving hazardous substances off-site for storage, treatment,
destruction, or disposal, provided that the substances are moved to a facility
in compliance with Subtitle C of the Solid Waste Disposal Act, as amended by
the Resource Conservation and Recovery Act (present policy being updated);
g. Placing physical barriers to deter the spread of the release;
h. Controlling the water discharge from an upstream impoundment;
i. Recommending to appropriate authorities the evacuation of
threatened individuals;
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j. Using chemicals and other materials in accordance with
Subpart H to restrain the spread of the substance and to mitigate its
effects. (Subpart H of the NCP only addresses oil spills and was revised
and published in the Federal Register July 16, 1984.)
; k. Executing damage control or salvage operations.
An immediate removal should be terminated when the release has been
stabilized, i.e., the release is under control and the criteria justifying
initiation of action are no longer met. However, termination should not
occur if it will result in a renewed immediate threat, or if any contaminated
waste materials transported off site have not been properly disposed of or
treated. In addition, in the case of classic releases, the hazardous
substance will generally be completely cleaned up, not just stabilized,
unless circumstances indicate termination to be advisable before that point.
Classic releases are those that 1) have been released to the environment a
relatively short time; and/or 2) have been released as a result of an
accident, fire, explosion, or failure of a container or handling system,
and/or 3) have been released from a transportation related source or from an
active or operating facility; and/or 4) have been intentionally released in an
isolated (one-time) incident to an area not used (presently or previously) to
store or dispose of chemical wastes (i.e., "midnight dump").
Immediate removals shall not continue after $1 million has been obligated
for the action or six months have elapsed from the date of initial on-site
Federal response, unless an exemption is obtained as discussed in Section E
of this document.
Finally, an immediate removal undertaken at a site currently or
subsequently placed on the National Priorities List (NPL), that was owned by
a State or its political subdivision at the time any hazardous wastes were
disposed of there, is subject to a minimum 50% cost share, in accordance
with CERCLA and the NCP. This cost share is payable upon commencement of
any subsequent remedial action. If there is no subsequent remedial action,
no cost share for the immediate removal will be required.
2. Planned Removal
Although pending revisions to the NCP will likely eliminate the category
of planned removals, the following information is provided for use until the
NCP revisions are finalized. Planned removals may include the activities
itemized above and may be considered for release incidents that allow more
time than an immediate removal to plan the response, but that still require
expeditious attention to prevent/mitigate risk to public health or the
environment.
a. A planned removal may be undertaken pursuant to a contract or
cooperative agreement when the lead agency determines that:
(1) The action is a continuation of an immediate removal
taken at a release which would provide substantial cost savings by using the
equipment and resources mobilized for the immediate removal; or
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(2) The public and/or environment would be at risk from
exposure to hazardous substances if response is delayed jit a release not on
the NPL. ~ - . . .
b. A planned removal must be requested by the Governor of the
affected State or his designee. This request must include, among other items
of information, assurances that the State will pay the appropriate cost share
(see NCP, section 300.67(b) or Section C.S.b. of this document). The State's
cost snare for a planned removal is 10% for sites privately owned at the time
of disposal of hazardous substances and at least 50% for a site owned by a
State or political subdivision thereof at the time of disposal of hazardous
substances. In addition, the State must pay for all future operation and
maintenance (see Section T of this document for details).
c. Anong the factors to be considered to determine whether a
planned removal is appropriate are the following:
(1) Actual or potential direct contact with hazardous
substances by nearby population;
(2) Contaminated drinking water at the tap;
(3) Hazardous substances in deteriorating drums, barrels,
tanks, or other bulk storage containers, that are known to pose a serious
threat to public health or the environment;
(4) Highly contaminated soils largely at or near surface,
posing a serious threat to public health or the environment;
(5) Serious threat of fire or explosion;
(6) Weather conditions that may cause substances to migrate
and pose a serious threat to public health or the environment.
A planned removal cannot last longer than 6 months or exceed $1 million
in costs. Special exemptions, as discussed in Section E of this document,
will not be granted for planned removals, unless conditions at the site
deteriorate to the point where there is an immediate and significant risk of
harm to human life, health, or the environment.
The planned removal is considered complete when it has been determined
that the risk to the public health or the environment has been abated. In
making this determination, EPA shall consider whether factors, such as those
listed in A.2.C. above, continue to apply to the release and whether any
contaminated waste materials transported off-site have been treated or
disposed of properly.
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Response actions that are likely to be prolonged or costly (in excess of
statutory limitations) should be considered for corrective measures through a
remedial response, if site conditions merit/ a planned removal may be
conducted as a self-contained unit while the State or EPA nominates the site
for the National Priorities List for completion under a remedial response.
3. Remedial Actions
Remedial actions are longer term cleanups for sites on the NPL. This
document does not address remedial actions.
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B. NOTIFICATION OF INCIEENTS
Under section 103(a) and (b) of CERCLA, any person in charge of a vessel
or an onshore or offshore facility is required, as scon as he has knowledge
of any hazardous substance release, to notify the National Response Center
(NSC) of such a release involving a reportable quantity (measured for a
24-hour time period). The NPC shall expeditiously convey the notification to
all appropriate Qoverrroent agencies including the Governor of the affected
State. As per agreement with the U.S. Coast Guard the NRC notifies the OSC
in the appropriate EPA Regional or U.S. Coast Guard District Office, who in
turn notifies the Governor or the Governor's designee of the affected State.
In accordance with OERCIA and the NCP, all Federal agencies are
responsible for reporting releases of hazardous substances from facilities or
vessels which are under their jurisdiction or control.
EPA has promulgated a proposed rulemaking on reportable quantities and
notification requirements (48 FR 23552, May 25, 1983). Comments are being
analyzed for promulgation of the final rule, scheduled for summer, 1984.
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C. PROCEDURES FOR INITIATING FEMOVAL ACTIONS
As noted in Section A, the NCP sets forth criteria for determining
whether a release qualifies for an immediate or planned removal. Further,
the NCP establishes a procedural framework for arriving at that determination.
This chapter provides detailed guidelines to response personnel on how to
apply the NCP framework.
1. Conducting the Preliminary Assessment
The NCP requires a preliminary assessment of reported releases before
initiating a CERCLA-financed response. The purpose of the assessment is to
provide an initial indication of the need for a Federal response, in the form
of an immediate removal, planned removal or remedial action, if the reported
release potentially requires an immediate removal, the CSC should conduct the
assessment as promptly as possible, based on readily available information.
Other releases shall be assessed as soon as practicable. The preliminary
assessment may include:
a. Evaluation of the magnitude of the hazard;
b. Identification of the source and nature of the release;
c. . Determination of the existence of a non-Federal party (or
'parties) that is ready, willing and able to undertake a proper response;
and
d. Evaluation of factors necessary to determine whether an
immediate removal is necessary.
The NCP notes that a preliminary assessment at a hazardous waste
management facility may involve the review of data and photographs, personal
interviews, a perimeter (off-site) inspection and, where needed, an on-site
inspection if conditions are such that it may be performed safely.
During the assessment, the OSC should determine whether the release or
potential release involves a designated hazardous substance or a
non-designated pollutant or contaminant. CERCLA requires that the release
or threat of release of pollutants and contaminants may present an imminent
and substantial danger to public health or welfare before response can be
undertaken.
A preliminary assessment should be terminated when the OSC determines:
there is no release; the source is neither a vessel nor a facility; the
release involves neither a hazardous substance, nor a pollutant or contaminant
that may pose an imminent and substantial danger to public health or welfare;
the amount released does not warrant Federal response; a party responsible
for the release, or any other person, is providing appropriate response, and
on-scene monitoring by EPA is not recommended or approved, or the assessment
is complete.
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Vlien the completed preliminary assessment indicates the potential need
for an immediate removal/the OSC should further determine the appropriateness
of the immediate removal using the decision rationale set forth in Section
C.2 below. Vfcen the preliminary assessment indicates that a planned removal
may be appropriate, the OSC should conduct an evaluation and determination
of appropriate response as required by the NCP and described in Section C.5
of this document.
2. Recommending an Immediate Removal
If a preliminary assessment has indicated the potential need for an
immediate removal, the OSC must further determine the appropriateness of a
Fund-financed immediate removal and whether the response will require RA or
HQ approval. The following decision rationale is suggested for use by the
OSCs when further evaluating the need for an immediate removal action (also
see Appendix 1) and preparing an action memorandum as described' in Appendix 2.
This action memorandum replaces the 10-point document previously required.
a. Initial Emergency Screen
This step is designed to facilitate responses to clear-cut,
time-critical emergencies for which only limited data are available. In those
cases, OSCs may have to rely primarily on the findings of the preliminary
assessment, without significant additional data collection. Nevertheless,
the analysis and interpretation of that data must be sufficiently rigorous to
document that the immediate removal action would be consistent with the NCP.
Factors the OSC should consider are the characteristics of the incident, the
substances involved, the probable impact of the release on public health and
environment, and selection of a mitigative action. Most of these incidents
will fall within the RA's authority, as outlined in Section C.3.a below, if
the incident falls outside the RA's authority, the Region should notify BQ
that an immediate removal request requiring quick approval will be forthcoming.
Procedures for HQ approval are set forth in Section C.3.b. of this document.
b. Health/Environmental Threat Review
Vfcere the OSC has determined that the incident is not time-critical,
a more thorough analysis of the health and environmental threats (e.g.,
through further sampling and analysis) will be possible before recommending
a CERCLA response. In conducting this analysis, the OSC should consider the
threat factors outlined in the sample action memorandum in Appendix 2 such
as threat to the public health or the environment, and the extent of the
release.
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c. Potential for Non-Federal Action
The Agency does not intend to conduct a CEPCIA-financed inmediate
removal where timely action by a potentially responsible party is expected
or the response is within the independent financial or technical capabilities
of'State and local agencies. Thus, after characterizing the threat and
ascertaining that it meets the NCP criteria for an inmediate removal/ the
CSC should examine the alternatives to a CERCIA removal action. Factors to
consider are the status of enforcement actions and the ability and willingness
of State and local agencies to take action.
d. Recommendation of Response Action
If the review and analysis conducted in steps b and c above verify
the need for a CERCIA inmediate removal, the CSC next should identify and
evaluate response options. These options should be directly related to
mitigation of the release threat or threats. Factors to be considered include
the technical feasibility and probable effectiveness of each alternative, the
duration and cost of each response option, public acceptance, opportunities
for State and local participation, and legal implications. Based on this
analysis, the CSC should select the preferred cleanup option for mitigation
of the threat.
3. Initiating the Immediate Removal
After selecting a preferred inmediate removal response action, the CSC
must obtain the appropriate Regional or HQ approval to commence the inmediate
removal.
a. Regional Authority and Approval Procedures
On April 16, 1984, the Deputy Administrator signed a new delegation of
authority to Regional Administrators (RAs) concerning the selection and
performance of all removal actions costing up to $1,000,000 (see Appendix
3). By Delegation 14-1-A, RA's may approve removal actions costing up to
$1,000,000 that are: 1) expected to last up to 6 months, 2) expected, from
the outset of the project, to last longer than 6 months and 3) expected
originally to last up to 6 months, but are later determined to require
continuation. Thus, in addition to the $1 million approval authority, this
delegation also gives RAs the authority to grant exemptions to the 6 month
limit (see Section E of this document for exemption procedures).
With this delegation RAs are authorized to initiate removal actions for
releases at both National Priorities List (NPL) sites and-non-NPL sites in
accordance with the criteria of the NCP. RAs may redelegate to their Division
Directors the authority to approve expenditures up to $1,000,000 for projects
lasting up to 6 months. Further, RAs may redelegate to CSCs authority to
approve actions costing up to $50,000. Removal actions costing more than
$1,000,000 and continued removal actions after obligations of $1,000,000 must
be approved by the AA, OSWER in accordance with Delegation 14-2, described in
Section C.3.b of this document.
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When the RA approves an immediate removal, he/she should make the
determination that the criteria established by Section 300.65 of the NCP
have been met. These criteria are also discussed in Section A of this
guidance. Coordination with Regional enforcement and remedial staff is
important to assure that appropriate enforcement actions and/or subsequent
remedial responses are initiated.
(1) The RA has the authority to obligate up to $1,000,000 in
removal costs for each site. This limit includes any previous obligations
at a site and includes all extramural costs and Headquarters and Regional
intramural costs, except for all enforcement costs. This means that costs
associated with conmercial cleanup contractors, letter contracts for
procurement with states and localities, interagency agreements (lAGs),
response-related national contracts such as the Technical Assistance Team
(TAT), the National Contract Laboratory Program (NCLP), and the Environmental
Response lean's Environmental Emergency Response unit (EERU), EPA Regional
Laboratories and Headquarters and Regional direct intramural costs (site
specific salaries, travel, per-diem, overtime) are to be included in the
limit. Because these costs must all be tracked against the $1 million limit
and the total project ceiling, all action memos must include an estimate of
these costs and an estimated total project ceiling. For example, the RA may
set a total project ceiling in the following manner:
Cleanup contractors $750,000
Letter contract for procurement w/State 5,000
Other Federal Agency cost through an Interagency
agreement (i.e. FEMA, USCG Strike Team) 7,000
TAT costs 10,000
NCLP analytical services 20,000
ERT/fcERU 20,000
Regional laboratory services 5,000
Intramural (HQ and Region) 45,000
TOTAL PROJECT CEILING $857,000
(2) The $1,000,000 limit excludes all enforcement costs.
Enforcement costs are defined as:
(a) Payroll hours charged to the site by technical
enforcement personnel in the Regions and Headquarters.
(b) Payroll hours charged to the site by Regional and
Headquarters legal personnel.
(c) Enforcement related contract support tasks such as
responsible party searches and financial assessments. (This work is generally
contracted under the Technical Enforcement Support (TES) contract.)
(d) Travel costs charged to the site for technical
enforcement and legal personnel in the Regions and Headquarters.
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Also excluded from the $1 million limit are costs associated with CERCLA
104(b) investigative activities undertaken before the initiation of onsite
cleanup work. However, the routine documentation and evidence collection
(e.g. sampling to document presence of a hazardous substance) to support
the initiation of removal activity and possible future cost recovery action
should not be considered as enforcement costs, and thus cto count against
the $1 million limit.
(3) The RA may redelegate to On-Scene Coordinators (OSCs)
authority to approve actions costing up to $50,000 at 1) classic releases
from transportation accidents, active or operating facilities, or deliberate
dumps; or 2) when there is a risk of death, injury, or catastrophic environ-
mental damage from hazardous substance releases at inactive or abandoned
facilities or sites. For purposes of this delegation the following
definitions are provided.
o Classic releases mean those incidents in which hazardous
substances have been released to the environment for a
relatively short time from either a transportation related
source or from an active or operating facility. Such
release is either the result of an accident, fire,
explosion, or failure of a container or handling system
or the intentional disposal in a one time incident to an
area not used
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with a ceiling increase request in accordance with the action memo format
-in Appendix 4. When activating the OSC's $50,000 authority the Region must
send a copy of the action memo to ERD within 5 days.
(4) When using the RA's authority, the Region must prepare an
action memo in accordance with the format in Appendix 2. The request should
be originated by the CSC and forwarded to the RA (or the Division Director,
if the RA has redelegated that authority). The Region must submit to the
Emergency Response Division (ERD), within 5 days of the initiation of an RA
approved response activity, a copy of the signed action memorandum. This
submission may be made by Telefax (#202-755-2155) or by overnight Regional
pouch mail. The Region should also notify the Removal Operations Team by
phone (18-382-2188) or TWX (1710-822-9269) as soon as possible when the RA
has approved any removal.
(5) If it is necessary at any time to discuss a potential
immediate removal action with ERD, contact the Removal Operations Team,
Response Operations Branch, at 8-382-2188. Removal Operations Team staff
are available to assist in the preparation of immediate removal requests
either in Regional offices or on-site.
b. HQ Authority and Approval Procedures
In accordance with Delegation 14-2, signed by the Deputy
Administrator on April 16, 1984 (see Appendix 3), the AA, C6WER will approve
immediate removal actions for all cleanups initially or ultimately requiring
over $1,000,000 in obligations (as defined in Section C.3.a.l above).
Procedures for contacting HQ during duty and non-duty hours are as
follows.
(1) During REGULAR WORKING HOURS the following approval
sequence shall be used:
(a) The CSC shall notify the Removal Operations Team,
Emergency Response Division (ERD) of the Region's intent to request HQ
approval to initiate an immediate removal. (Phone # 8-382-2188, Magnafax
# 202-755-2155, TWX # 710-822-9269).
(b) The CSC shall then provide the information set forth
in the action memo format in Appendix 2 (previous 10 point document). The
request must be signed by the RA, and be addressed to the AA, CSWER, through
the Director, CERR, to the attention of the Director, ERD.
(c) The Removal Operations Team, ERD^ will review the
action memo, coordinate and gain concurrences from other offices as necessary
(e.g., the Office of Waste Programs Enforcement, OGC, and Remedial), and
relay the request and a recommendation for approval/denial to the .Director,
Office of Emergency and Remedial Response (CERR). The Director, CERR, will
review the request and forward it with his recommendation to the AA, OSWER,
for final approval.
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(d) The ERD will then communicate the OSWER decision
back to the OSC as quickly as possible. Written confirmation of the decision
will be forwarded to the OSC by ERD as scon as practicable.
-., (e) In an emergency/ the initial request or request to
exceed $1 million may be made verbally. Within 24 hours, the OSC shall
provide the information set forth in the action memo format in Appendix 2
and Appendix 4 respectively. The request must be signed by the RA.
(2) During NON DUTY HOURS (after 5:00 p.m. EST on weekdays,
on Saturday/ Sunday, and holidays), the following approval sequence will be
used:
(a) The OSC will call the National Response Center (NRC),
800-424-8802, identify himself/herself, and ask to be put in contact with the
EPA ERD duty officer.
(b) The NRC will contact the EPA ERD duty officer.
(c) The ERD duty officer will contact the OSC and ask
for the information listed in Appendix 2, and notify the supervisory duty
officer, the Director, OERR, and the Assistant Administrator, OSWER, who will
approve or deny the request.
(d) The ERD duty officer will communicate the decision
and the appropriate accounting information to the OSC as quickly as possible
and will confirm the decision in writing by the end of the next work day.
Until the end of the fiscal year, if the decision is to proceed and the site
is new and has no previous site identifier, the ERD duty officer will provide
the OSC with a site identification number. All other accounting information
(i.e. account number using the new identification number, or the document
control number) should be obtained from the Regional Office in accordance
with established procedures. After October 1, 1984, the site identification
number also will be obtainable from the Regional Office.
(e) The formal request from the RA in action memo
format, shall be sent to ERD within 24 hours or on the next working day.
4. Ceiling Increases
As discussed in Section C.3. above, immediate removals are approved by
the Regional Administrator or the AA, OSWER, with an estimated total project
ceiling level specifying the amount of funds available foe the project.
In order to exceed this ceiling, a formal ceiling increase request (see
Appendix 4) must be approved by the RA or the AA, OSWER, as detailed below.
The amount of information required in a ceiling increase request will
vary from site to site, depending on the circumstances. In general, the
request should include information on the current site conditions, actions
taken to date, costs to date, and the reasons why the ceiling increase is
required (e.g., changed site conditions, increased volume of waste, revised
estimates). It is important to detail whether the increase is necessary due
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to the need to perfonn more work to mitigate the threat in the original scope
of work, or if there is an additional threat to human health, welfare or the
environment, not previously documented, requiring additional removal measures.
If additional threats are disclosed, a new finding should be made that they
meet the NCP criteria.
a. Regional Approval
The Regional Administrator's authorities include the ability to
approve ceiling increases up to $1,000,000 as follows: as with the RA's
$1,000,000 approval authority, this authority applies to cleanup contractor
costs, letter contracts with States, site-specific interagency agreements,
EPA Regional Laboratories, HQ and Regional intramural costs, and costs
associated with TAT/ NCLP and the ERT/EERU. The Region must transmit to
ERD, within 5 days of the RA's approval of the ceiling increase, a copy of
the signed action memorandum. This must provide the information specified
above and should be in accordance with the format specified in Appendix 4.
The submission should be made by Telefax (1202-755-2155) or by overnight
mail. The Region should also notify the Removal Operations Team by phone
as soon as possible of the ceiling increase approval (18-382-2188) or TVK
(#710-822-9269).
Delegation 14-2, (see Appendix 3) requires the approval of the AA,
OSVER, for removals initially or ultimately costing more than $1,000,000.
Therefore, removals begun under the RA's authority should exceed $1,000,000
only due to unforeseen circumstances. In these situations, HQ approval is
required. The unforeseen circumstances should be fully explained in the
ceiling increase request to HO.
b. Headquarters Approval
Ceiling increases to cover costs for projects that exceed the RA's
$1,000,000 authority (see Section C.3.a.) are approved by the AA, OSVER.
Ceiling increase requests that require HQ approval must be submitted under
the signature of the RA, include the information specified above, and be in
accordance with the format specified in Appendix 4. If a $1 million exemp-
tion has not previously been approved by the AA, OSVER, the ceiling increase
can be requested in the $1 million exemption request in accordance with the
format specified in Appendix 9 (see Section E). The request should be sent
through the Director, OERR, to the attention of the Director, ERD, so that
it is received by the appropriate Project Officer in ERD as scon as possible.
This is especially critical when, because of unforeseen circumstances, little
time is available to process the request. Vfcenever possible, requests should
be submitted at least one week before the project ceiling will be reached to
ensure enough time for processing and, ultimately, to ensure that the project
will be continued uninterrupted. It is recommended that when a request is
urgent, it should be Telefaxed (#202-755-2155) or sent by overnight mail.
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5. Evaluation and Determination of Appropriate Response
Section 300.66 of the NCP provides for more extensive investigation
of an incident to determine appropriate action (1) upon completion of an
immediate removal action or (2) when a preliminary assessment made under
§300.64 of the NCP indicates that a Fund-financed response other than an
immediate removal may be necessary. When either of these two situations
exists, the Region should conduct, as scon as practicable, further
evaluation of the incident to determine whether planned removal or remedial
action is needed.
In addition to inspections to assess the nature and extent of the
release, the evaluation may include investigations, monitoring, surveys,
testing and other information gathering as appropriate. The evaluation
should be coordinated with the State. The decision rationale presented in
Section C.2 of this document for determining the need for immediate removal
may be useful in evaluating the need for planned removal, as well.
The evaluation may result in a determination by the Region that planned
removal is appropriate, in which case the procedures outlined below in Section
C.6. should be followed. Alternatively, new -information may cane to light
that necessitates further immediate removal. If so, a request to initiate
(or continue) an immediate removal should be made as described in Section C.3
of this guidance.
6. Initiation of Planned Removal
As mentioned in Section C.3 of this document, the Deputy Administrator,
through Delegation 14-1-A, delegated authority for all removal actions costing
under $1,000,000 to the RAs, thereby allowing RAs to approve planned removal
actions. This delegation also allows redelegation to the Division Director
level, authority to approve actions costing up to $1,000,000, provided, they
do not exceed 6 months in duration. Further, by this delegation, the RA may
grant exemptions from the 6 month limit in accordance with the procedures in
Section E of this document. The information presented in Section C.3.a.(l)
and (2) of this document on costs included in, and excluded from, the
$1,000,000 limit apply to planned removals as well as immediate removals.
Approval of planned removals costing more than $1,000,000 will be made by
the AA, OSVER, in accordance with Delegation 14-2.
a. Regional Approval
For RA-approved planned removals, the following approval sequence
is to be used during normal weekday hours (planned removal approval requests
may not occur during off-duty hours):
(1) Because planned removals involve considerable processing,
the decision to approve a planned removal should be thoroughly coordinated
within the Region. It is particularly important to coordinate all requests
through Regional enforcement personnel to avoid unnecessary processing where
private party response could be obtained.
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*
-19-
(2) The Region should obtain a written assurance from the
Governor or his/her designee of the State's willingness to participate in a
specific planned removal action and intent to provide the minimum cost-share
contribution. The letter from the Governor or designee (letter of intent)
should be sent to the Regional Administrator and must include the following:
*
(a) A description of the nature and extent of the release;
(b) A description of actions taken or underway at the site;
(c) A description of the proposed planned removal; and
(d) Assurances that the State will pay at least
10 percent of the costs of the action (for a site privately owned at the
time of disposal), or at least 50 percent (for a site owned by the State or
a subdivision thereof/ at the time of disposal) and 100% of all operation
and maintenance upon termination of the planned removal. These assurances
are regulatory ones under the NCP $300.67(b)(4), and are not pursuant to
CERCLA section 104(c)(3).
(3) The Region should prepare a planned removal action
memorandum (as described in Appendix 5) and include a copy of the letter of
intent from the State's Governor or his/her designee. The request should be
originated by the OSC and forwarded to the RA (or the Division Director if
the RA has redelegated that authority). A copy of the action memo should be
sent to ERD in BQ within 5 days of the approval.
(4) Enforcement will be consulted to assure that 1) notice
letters, if appropriate/ have been sent to all known responsible parties and
2) that no known responsible parties will take over the cleanup. See Section
K.2 of this document for more information on this subject.
b. Headquarters Approval
Headquarters approval will be accomplished using the same procedures
listed above except that action memos are originated in the Region/ signed by
the RA/ and submitted to the AA/ OSWER, along with a copy of the letter of
intent from the State Governor. The request should be sent through the
Director/ OERR, to the attention of the Director, ERD, so that it is received
by the appropriate ERD project officer. ERD will coordinate the request with
OERR and other BQ offices/ then forward it with a recommendation for approval
or denial to the Director, CERR, who will forward it to the AA, OSWER for
final decision. ERD will notify the Region of that decision.
At this point, the remainder of the procedure for processing a planned
removal depends on whether the State or EPA will lead in the action. The two
procedures are discussed in Sections C.7 and C.8 below. These procedures
reflect Delegation 14-1-B, dated April 16, 1984, by which RAs have-been
delegated the authority to enter into cooperative agreements and Superfund
State contracts (SSC) for removal actions.
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Ceiling increases and major changes to the scope of work for planned
removal actions will be prepared in accordance with Sections C.4.b and C.10
respectively. Whenever such requests are approved, the SSC or cooperative
agreement with the State must be amended appropriately.
7. Planned Removals - EPA Lead
Concurrent with the procedure for procuring a cleanup contractor
(described in Section D), the Region should work with the State to prepare a
Superfund State Contract (SSC). The SSC must be coordinated with Regional
Counsel to produce a final document to be signed by the PA, and forwarded to
the State for signature. This document is not a procurement contract; rather,
it outlines EPA's and the State's responsibilities as well as payment
schedules for the State's cost share and related information. A sample
format for the SSC is in Appendix 7. Co-site action will not commence until
the SSC is fully executed. Contact the Guidance Development Team, ERD, at
8-382-2200, for further information on preparing and negotiating this document.
8. Planned Removals - State Lead
If a State leads the removal, the State, not EPA, is responsible for
procurement of a cleanup contractor. Further, instead of an SSC, the State
and EPA must negotiate a cooperative agreement. Since these agreements have
been so infrequent in the removal program, Regional personnel are advised
to consult with the ERD Guidance Development Team (8-382-2200) for current
information on processing planned removal cooperative agreements prior to
submitting a State-lead planned removal action.
9. Cost Share Calculations for EPA Lead Actions
a. As discussed above, States are required to contribute a cost
share for planned removals. This cost share can be composed of cash,
verified State credits, and/or services, pursuant to the provisions of their
SSC. Such services must be authorized in advance by the CSC as being a
necessary part of the cleanup action. Costs incurred by the State prior to
the initiation or after the completion of the planned removal cannot be
included in their cost share.
b. As scon as possible after completion of the removal action,
the Region and the State should each compute their respective site specific
allowable costs. Allowable costs are defined respectively in Section G of
this guidance and Chapter 1 of the Federal Procurement Regulations
$1-15.703.1. EPA's cleanup contractor costs will be based-on the final
invoices received by The Financial Management Division (FMD).
c. The State should submit its cost information in the form of a
letter to the CSC. The letter should include the following information:
1) Identification of the total amount being claimed.
2) Listing of the units of government which incurred the
costs (i.e., State, county, local).
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3) The costs for each governmental unit in detail by cost
element (i.e., labor, travel, equipment, etc.).
4) Brief description of specific functions performed by each
governmental unit as it pertains to the site (i.e., as specified in the SSC).
i»
To be allowable, services provided must have been authorized by the CSC.
5) A certification that the costs claimed have not been
reimbursed under any other Federal program or grant, nor by non-Federal
sources such as potentially responsible parties. This certification must be
signed by the State's fiscal manager or the State Agency's financial director.
6) The complete name, address and telephone number of the
State official who should receive a billing, if one is necessary.
7) Other pertinent information, as appropriate.
d. The State's costs will be reviewed by the Region to make a
determination of alienability under CERCXA. This review will consider the
following specifications: that the costs claimed were necessary and
reasonable for the specific action, and not a general expense required to
carry out the overall responsibilities of the State Government; that the
costs were EPA authorized; that the costs were not prohibited by State/local
law; and that they are not accountable to or included as costs of any other
Federally financed program.
e. EPA and the State will discuss and resolve any questions
about costs. The cost of the allowable State services will then be added to
EPA costs to determine the Total Project Cost (TPC); the State's cost share
is ten or fifty percent of this figure. The value of the State services
will be subtracted from the ten percent cost share.
The following examples, which assume a ten percent cost share, may
help clarify this procedure:
EPA Services
Allowable State Services
Total Project Cost
Required State Cost-Share
Allowable State Services
Site 1 Site 2
$450,000 $470,000
50,000 30,000
$500,000 $500,000
x 10% x 10%
50,000 50,000
-50,000 -30,000
0» No cash 23,000
contribution
needed from
State.
State would
owe this as
a cash
contribution
(could also
be satisfied
with verified
State credits)
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AUS 20
-22-
Site 3
EPA Services $440,000
Allowable State Services 60,000
Total Project Cost $500,000
x 10%
Required State Cost-Share 50,000
Allowable State Services -60,000
-10,000 » State contributed services above
and beyond their required cost
share - not reimbursable
f. EPA will notify the State of these computations. If the
State's allowable costs for services and verified State credits total less
than ten percent (or fifty percent if appropriate) of the TPC, a bill will
be sent to the State for a cash contribution.
g. If the State's allowable costs for services and verified
State credits are more than, or equal to, ten percent (or fifty percent if
appropriate) of the TPC, a letter acknowledging that the cost share has
been met will be sent to the State and the verified State credit, if any,
will be reduced by the amount used to satisfy the cost share. There will
be no reimbursement to the State or increase to the verified State credits
for State costs which exceed the cost share requirement.
h. All costs may be subject to audit by EPA's Office of the
Inspector General. There is no statute of limitations as to when this audit
may be done. If a discrepancy is found, arrangements will be made to reconcile
it.
NOTE: A matrix summarizing all of the approvals contained in Section C has
been included as Appendix 6.
10. Changes to Project Scope of Work - Immediate and Planned Removals
If major changes/alterations in the project scope of work are necessary
at an approved removal action, but project costs remain unaffected, the
approval/concurrence of the authorized official who signed the original
action memo is required. This will provide documentation to the record of
the change in project scope and redirection of funds for the new tasks to
be performed.
Changes to a project scope of work which increase the* total project
ceiling will be approved/documented in a ceiling increase request. See
Section C.4 of this document.
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D. REMOVAL CONTRACTING PROCEDURES ON EPA LEAD PROJECTS
The principal mechanism for procuring response services for both
immediate and planned removals is now the Emergency Response Cleanup Services
Contracts (ERGS). ERGS can also be used for initial remedial measures. ERCS
includes four zone contractors, providing the following coverage for EPA
Regions:
o Zone 1 - Regions 1-3
o Zone 2 - Region 4
o Zone 3 - Region 5
o Zone 4 - Region 6-10
These zone contractors are able to provide a full range of response services
including: containment and countermeasures; cleanup, mitigation and disposal;
restoration and analytical services. There may be 20-30 Regional contractors
supplementing these zone contractors, who can provide similar services but
have smaller resource capacities and cover more localized geographical areas.
However, this supplemental contractor concept is still under development.
Additional information detailing the capabilities of the zone and Regional
contractors is in the Emergency Response Cleanup Services Contracts (ERGS)
Users* Manual, October 1983.
ERGS substantially replaces the former procurement procedures for both
immediate removals (i.e., Interim Emergency Procurement Procedures) and
planned removals (i.e., limited competition or non-competitive negotiated
procurement ). In some circumstances, however, OSCs will continue to use
these procedures. An ERCS contractor may be unable to respond to an iimediate
removal in a timely manner, there may be a conflict of interest, or a highly
specialized contractor is required. In these cases, the OSC may upon consul-
tation with Procurement and Contracts Management Division (PCMD) continue to
utilize the revised Interim Emergency Procurement Procedures described in
Section D.2 of this document.
OSCs should note that ERCS services are intended for cleanup and that,
ERCS may not be used for preliminary assessments, extent of contamination
surveys and broad planning activities. These restrictions on the use of
ERCS are necessary to avoid a potential conflict of interest or even
appearance of a conflict of interest. It is recommended that the Environ-
mental Response Team (ERT) be contacted to obtain these services.
1. Procedures for Using ERCS
Once RQ or the Region has approved a removal action (and, in the case of
a planned removal, the SSC is signed), the Region can access the services of
the appropriate ERCS contractor through issuance of a Delivery Order (DO).
The process for issuing a DO is as follows:
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a. A Delivery Order (DO) contains 5 elements: standard
specifications (e.g., accounting data, response time requirements); a
statement of work (SOW); a ceiling amount; site-specific health and safety
and institutional requirements; terms and conditions. The level of detail
in.the DO will vary according to the urgency of the removal action.
For example, for situations in which the OSC has limited time in
which to assess the nature of the release, the SOW in the DO may contain
general descriptions of the tasks required. By contrast, for less urgent
removals, the SOW should include detailed descriptions of services, task
schedule and deliverables.
b. Delivery Orders will be issued by Federal Ordering Officers
(EPA OSCs, Regional Site Project Officers, and other designated officials).
On approved projects, Ordering Officers may obligate the government only up
to $250,000. Obligations above that amount require HQ Contracting Officer
execution as described in the ERCS Users' Manual. In most instances, the
Ordering Officer and the OSC directing the removal will be the same indivi-
dual. Vfcere this is not the case, the Ordering Officer and the OSC should
coordinate the preparation of the SOW of the DO.
c. Upon completing and signing the DO, the Federal Ordering
Officer will issue it to the contractors' Program Manager or designee. The
contractor must send both the Ordering Officer and the PCMD Contracting
Officer an acknowledgement of the receipt of the DO within one week or half
of the time specified for the period of performance, whichever is less.
d. Responsibility for supervising and monitoring the contractors'
activities rests with the OSC, regardless of who serves as the Ordering
Officer. During the response, modification to the SOW, completion date or
DO ceiling may be needed. The OSC or Ordering Officer is responsible for
requesting execution of a written modification from the PCMD Contracting
Officer. Most requests can be handled by telephone. The Contracting
Officer prepares, signs and issues Standard Form 30, "Anendment of
Solicitation/Modification of Contract" to the ERCS contractor.
e. For procedures on preparing procurement requests for Delivery
Orders, refer to Section H (Financial Management Procedures) of this guidance.
2. Contracts Issued Outside Emergency Response Cleanup Services System
OSCs still have the ability to contract outside the ERCS system when
conducting removals where utilization of an ERCS contractor is inappropriate.
Use of an ERCS contractor is inappropriate if 1) the situation presents a
conflict of interest; 2) the contractor cannot respond scon enough or; 3) a
unique situation warrants another contractor. In these cases, the OSC will
work in close coordination with the HQ PCMD Contracting Officer in arranging
the procurement. These procedures will differ frcm those in the January
1982 Interim Emergency Procurement Procedures for the Hazardous Substance
Response Program - Revision No. 1, only in that the Notice to Proceed will
have an upper limit of $10,000, although this amount can be increased by the
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BQ Contracting Officer. Additionally, the Order for Services will have an
upper limit of $2500. The Letter Contract with State and local governments
will continue to be available to procure services for up to $50,000 from
States or localities. Amendments for amounts above $50,000 must be processed
by iPCMD.
3. Oversight of Contractors
Appropriate oversight must be maintained over contractors performing
removal services for the Agency. OSCs should use their professional judgment
in determining how long they must be onsite to supervise contractor activities
and when compelling circumstances, such as another ongoing removal action at
another site, require them to leave a site under the supervision of an
assistant. In general, the supervision by an assistant would be appropriate
in situations during which no change in work orders was anticipated while the
OSC was offsite. On-scene activities may be overseen for the OSC by the OSC
representative (who may be, for example, another EPA employee or Coast Guard
employee), or a State employee or a TAT member. However, State personnel or
TAT members may only carry out the orders of the OSC and give no direction
themselves. EPA Cost Control Documents may only be signed by a Federal
employee, that is the OSC, or the OSC representative.
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E. SPECIAL EXEMPTIONS TO LIMITS ON REMOVAL ACTIONS
Renewal actions are limited by section 104(c)(l) of CERCLA and 300.65(d)
and 300.67(e) of the NCP to six months in duration or $1 million in cost.
Pursuant to Delegations 14-1-A (Selection and Performance of Removal Actions
Costing up to $1 million) and 14-2 (Removal Actions Initially Costing over
$1 million and Continued Removal Actions after Obligations of $1 million) the
Regional Administrator (RA) may approve exemptions to the six-month limit
and the Assistant Administrator, OSWER, may approve all exemptions to the
$1 million limit. Such approval will be based on findings that (a) continued
response actions are immediately required to prevent, limit, or mitigate the
emergency; (b) there is an immediate risk to public health or welfare or the
environment; and (c) such assistance will not otherwise be provided on a
timely basis.
The following procedures assure that there is sufficient time for a
decision to be made on exceeding the six month or $1 million limit before the
limit is reached r and that reasonable efforts are made to avoid exceeding
these limits. Statutory exemptions procedures apply primarily to immediate
removals but may be granted for planned removals where conditions can be
shown to meet the statutory criteria of section 104(c)(l). The finding that
there is a need for an exemption to either the 6 month or $1 million limit
may be made when approval of an immediate removal is first granted. However,
it should be based on a projection of the conditions that are expected to
continue to exist at the site after the six months work is completed, or
$1 million has been expended. This early determination can facilitate later
continuation of removal actions that require exceeding the 6 month or $1
million limits.
1. Six Month Limit
Exemptions to the six-month limit may be granted by the RA for a definite
amount of time (i.e., 30 days) or for an indefinite period of time (i.e.,
until remedial action can begin). The six month time period will commence on
the day on-site removal action actually begins, excluding any time spent doing
104(b) investigations, monitoring surveys, or other information collection
prior to the approval of a removal action and excluding any time spent procur-
ing a cleanup contractor or conducting any other off-site planning activities
after approval of the removal action. It does not begin on the date that the
action memorandum was signed approving the action, unless on-site work begins
that day.
The time limit for an individual removal action shall expire six months,
in calendar days, from the date the removal work onsite began (whether that
work is an immediate or a planned removal or both). For example, the
six-month time period for an immediate removal begun on June 14, 1983, would
expire on December 14, 1983. A removal will be considered completed for the
purposes of the time limit when on-site removal actions are completed and,
where applicable, a contract has been signed for the proper disposal of any
hazardous materials removed from the site. Time taken for the offsite
temporary storage of materials before the ultimate disposal is not included
in the statutory time limit.
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2. $1 Million Limit
Exemptions to the $1 million limit may be granted by the AA, OSWER. The
$1 million exemption request will also recommend a new ceiling for project
couplet ion for approval by the M, OSVER. The $1 million limit applies to
all obligations from the Fund associated with the approved removal action as
categorized in Section G.I of this guidance.
Section 104(b) activities conducted by EPA or any other Federal agency
prior to approval of a removal action are not counted toward the $1 million
limit. Further/ a State's cost share for a planned removal or any State
costs incurred for services at an immediate or planned removal (because they
are not reimbursed by the Fund) do not count against the limit. Also see
Section G of this guidance on allowable costs.
Finally, if more than one immediate and/or planned removal has been
undertaken at the same site, the sum of the total project costs of all the
removals counts against the $1 million limit.
3. Bequest to Exceed the Statutory Limits
The OSC should review the status of removal activities and site
conditions to determine if there will be a need to exceed the six month or
$1 million limit in each of the following cases:
a. When a total of $800,000 has been obligated for commercial
cleanup contracts at a release/site;
b. When four months have elapsed since removal began;
c. When an estimate has been received from a contractor that
exceeds either six months/Si million; or
d. If at any earlier time during the removal action, the OSC
believes that the six month/Si million limits will be exceeded.
Once the OSC has Knowledge that the $1 million limit must be exceeded
for project completion he/she must prepare an action memorandum for a
$1 million exemption request from the RA to the AA, OSWER. The OSC should
notify BPD through a FOLREP (see Section I of this document) as soon as it
appears that a $1 million exemption request is necessary. Such requests
require HO coordination with several offices and advance information will
help expedite the process.
Typically, the RA recommends a new project ceiling exceeding $1 million
as part of this action memorandum. An example of this type of situation
would be a removal action which currently has a project ceiling of $800,000
originally approved by the RA (see Appendix 9). The CSC discovers that an
additional $460,000 will be necessary for project completion. The CSC would
prepare the $1 million exemption request to document meeting the statutory
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criteria of section 104(c) of CERCLA. The AA, C6WER would approve the
$1 million exemption request and establish a new ceiling ($1.26 million based
on the above example) by concurring with the RA's reconmendation in the
exemption request.
For responses to classic releases, where the OSC and RA can not readily
predict the cost of completing the action, it may be more appropriate for the
RA to approve ceiling increases in increments until he has established the
project ceiling at $1 million. In these cases it is suggested that the RA
request a $1 million exemption of the AA, 06WER by the time he has obligated
$900,000 in extramural expenses. This allows a $100,000 buffer for other
project costs such as intramural obligations that could place the total
project cost at or above $1 million. Again, a new project ceiling would be
established as part of the $1 million exemption request to the AA, CSWER.
The OSC must submit the exemption request (in the form of an action memo
from the RA to the AA, OSWER) to allow removal activities to continue past
the $1 million limit. The request should also be sent to the attention of
the Director, Office of Emergency and Remedial Response, with a copy to the
Director, Emergency Response Division, so that it is received by the
appropriate Project Officer in ERD as soon as possible. This is especially
critical when, because of unforeseen circumstances, little time is-available
to process the request. It is reconnended that the request be telefaxed
(#202-755-2155) or sent by overnight mail to ERD when the request is urgent.
Similarly, the OSC must submit a request (in the form of an action memo)
for exemption from the 6 month limit to the Regional Administrator with a
copy to the Director, OERR.
4. Exemption Request Information
The Region's request to the AA, OSWER for a $1 million exemption, or
to the RA for a six-month exemption (see samples in Appendices 8 and 9)
should contain the following information in an action memorandum:
a. An evaluation of the nature of the immediate threat that will
continue to exist if work is halted when limits are reached, including
hazardous substances involved and estimates of the amounts; human populations
and environmental resources threatened and the nature of that threat, (e.g.,
the substances will contaminate the drinking water supply, destroy livestock
or crops, explode and endanger a residential area); and the amount of threat
involved (i.e., in the best judgment of the OSC, the likelihood that such
damage will occur if immediate removal is not continued). This information
must cite the CERCLA 104(c)(l) criteria for extending the limits and demon-
strate how they are met by current conditions.
b. The status of current activities and reasons for
non-completion within the statutory limits;
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c. A description of recommended additional removal actions and an
estimate of their costs and" effectiveness in mitigating the threat;
d. The expected timetable for completion of removal work at the
site and a brief description of projected remedial work;
e. Other parties who are willing or who could be made to respond,
efforts to get them to respond and the results of those efforts, including
the status of any enforcement activities.
Decisions on $1 million exemption requests will be made by the AA, OSWER,
and communicated back to the CSC verbally and in writing. Exemptions will be
periodically reviewed to assure adherence to tine schedules and cost estimates.
5. Additional Increments
An additional exemption to exceed the six-month limit may be requested
and granted when a previously granted time exemption has expired but the
statutory criteria are still met. Additional time requests should be
processed according to the same procedures outlined above. The $1 million
exemption need only be requested once. Once the $1 million exemption has
been approved by the AA, OSVER, any additional increases to the project
ceiling must also be established by him.
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F. STUDIES AND INVESTIGATIONS, RELATED TO RESPONSE ACTIONS
ONCER SECTION 104(b)
Section 104(b) of CERCLA provides for planning, legal, fiscal, econonic,
engineering, architectural, and other studies or investigations that may be
necessary to plan and direct response actions. Section 104(c)(l) exempts
these costs and the time spent implementing the activities from the six
month/?! million limitations.
Studies or investigations under 104(b) may be appropriately conducted as
part of the preliminary assessment of an observed or suspected hazardous
substance release where an OSC requires more information to determine the
need for, extent of/ or best method to conduct immediate or planned removal.
Where such studies are necessary, the OSC shall use, to the extent possible,
the inhouse capability of the ERT, the TAT, the Field Investigation Team
(FIT) and NCLP. ttiere appropriate, the services of other Federal agencies
may be requested by the OSC (for example, limited health assessments performed
by Department of Health and Human Services). See Section O of this document
for the procedures to obtain assistance from other Federal agencies.
The ERT maintains a 24-hour response capability consisting of support
personnel specializing in all aspects of environmental emergencies. When an
OSC determines that ERT assistance is necessary he should contact the Director,
Hazardous Response Support Division (475-8600) during duty hours or, during
non-duty hours, the ERT leader at the 24-hour response number (201-321-6660
or FTS 340-6660). The authority to activate the ERT rests with the Director
of Hazardous Response Support Division or his designee. Upon activation,
appropriate ERT personnel and resources are dispatched to operate under the
direct operational control of the OSC.
The NCLP provides a national system of contract laboratories to augment
EPA in-house laboratory analytical support for response actions. The OSC can
access the NCLP through the Regional Sample Control Center official designated
by each Regional Office.
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G. ALLOWABLE COSTS FOR REMOVAL ACTIONS
When providing response to a release or a threat of a release of a
hazardous substance, the OSC is authorized to incur costs provided they
qualify as appropriate uses of the Fund. These costs must be 1) directly
aHocable to a particular response, 2) reasonable, and 3) necessary to
accomplish the response.
1. Allowable Costs for Fund-Financed Removals
Allowable costs which can be incurred against the Fund include the
following:
a. EPA extramural costs incurred for all services in the conduct
and support of removal actions. These include:
(1) Contractor and consulting costs;
(2) Leasing or rental of equipment;
(3) Incremental operating costs for EPA owned equipment;
(4) Supplies, materials and equipment (including transporta-
tion costs) procured for the specific removal activity and fully expended
during the removal;
(5) Response-related national contract services such as TAT,
NCLP, and ERT's EERU;
(6) Payments to landowners who are not potential responsible
parties (PRPs) for easements and rights-of-way.*
b. Response-related damages (i.e., those resulting from the
response measures themselves) to land owners who are not PRPs including
terrain damaged by heavy equipment passage or the establishment of access
roads or a command post.*
c. EPA Regional (including Regional laboratories) and Headquarters
intramural costs (salaries, benefits, travel, overtime, overhead,* etc.)
associated with EPA Federal removal actions.
d. Site-specific extramural and intramural costs incurred by
other Federal agencies in removal actions (i.e., site specific lAGs with
FEMA, USCG, etc.).
e. State and local costs under a Cooperative Agreement.
* Policy under development. Please consult with the ERD Guidance Development
Team if these situations arise.
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f. State services provided through a procurement contract (Order
for Services or Letter Contract with State and local Governments).
These last two cost categories (l.e and l.f) must also be allowable
in^accordance with CMB Circular A-87 establishing cost principles for State
and local government.
2. Allowable Costs for Response Oversight
Costs incurred by OSCs, both intramural and extramural, associated with
oversight of non-Federal removal actions are allowable.
3. Non-Allowable Costs
Removal costs not allowed include:
a. State and local costs for which prior authorization was not
specifically given by the CSC or addressed in a cooperative agreement or
Superfund State Contract or procurement contract (i.e., municipal services
such as use of police or fire departments and State personnel that are
on-scene performing tasks not specifically requested by the CSC).
b. Costs to restore release-related damages to property (as
opposed to response-related damages). 'Release-related damages are those that
occur as a direct result of the release of a hazardous substance (i.e.,
poisoning of fish or livestock). These are not allowable as removal costs.
Payment of restoring, rehabilitating or acquiring the equivalent of
costs to natural resources damaged by the release may be made upon the
trustee's request for preauthorization under the claims regulations, which
are under development.
c. Costs for removal of petroleum, including crude oil and any
fraction thereof which is not otherwise specifically listed or designated as
a hazardous substance, natural gas, natural gas liquids, liquified natural
gas, or synthetic gas usable for fuel (or mixtures of natural gas and such
synthetic gas).
d. Costs incurred by a contractor to provide response measures,
for which that contractor is later found to be liable.
More complete guidance on allowable costs is currently being
developed by OEPR.
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H. FINANCIAL MANAGEMENT PROCEDURES
1. Accounting Data
The Region must enter four accounting and control numbers on all ERCS
Delivery Orders and other contracting and financial documents such as Orders
for Service and Notices to Proceed. Each Region should determine whether
accounting information will be entered by the CSC/Ordering Officer or by the
Region's Management Division. A more detailed description of financial
management procedures for the removal program will be provided as Appendix
12, when available. The necessary accounting data elements are defined below.
a. Appropriation Number - The Department of the Treasury has
assigned the permanent symbol 68/20X8145 to EPA to identify the Fund. This
symbol must be entered on all financial documents and does not change.
b. Account Number - The 10-digit EPA account number identifies
the year in which money was authorized; the program element and organizational
level to which a spending action will be charged; and the site and activity
for which funding is approved.
c. Document Control Numbers - The DCN is a unique 6-digit number
that identifies each individual financial commitment at a specific release
incident. Thus, a different DCN is used for each Delivery Order or modifi-
cation to increase the Delivery Order at a site.
d. Object Class Code - The Object Class Code is a 4-digit number
which identifies the types of materials or services obtained. Generally,
the first two digits indicate a major type of expense and the second two
digits identify a sub-object class that provides more detail about the
expenditure. For ERCS, Notice to Proceed, and Order for Services the code
is 2535.
2. ERCS Financial Management Procedures
The Emergency Response Cleanup Services (ERCS) contracts are activated
for a specific removal project through the issuance of a Delivery Order (DO),
supported by a Procurement Request (PR). Although a PR is generally prepared
in advance of a DO, the nature of the removal program is such that the docu-
ments are often processed simultaneously or out of order. Vfcen utilizing
ERCS, the OSC or other designated Federal official known as the Ordering
Officer must follow the procedures outlined below.
a« Initiating a Delivery Order up to $250,000
Upon approval of a removal action the CSC/Ordering Officer prepares
and signs the DO to the ERCS contractor. Depending upon the procedures
established in each Region, the accounting information requested in Block 6
will be entered by the OSC/Ordering Officer, Regional Financial Management
Officer (FMO), or other designated Regional Management Division staff. If
the OSC/Ordering Officer enters the accounting information, he/she should
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obtain a DCN and an account number by calling the designated Management
Division contact during normal duty hours, and should follow established
Regional procedures for obtaining DCNs and account numbers during non-duty
hours, if the appropriation number and object class category are not already
preprinted on the DO, the Ordering Officer should enter these numbers. The
original signed copy of the DO is submitted to PCMD-HQ, with the designated
copy sent to the Research Triangle Park (RIP) Financial Management Division
for entry of the obligation into the Financial Management System (FMS).
The PR is prepared and signatures obtained following established
Regional procedures. The PR should be funded by the Management Division
using the same accounting information that was verbally provided to the
OSC/Ordering Officer. The commitment copy is sent to RTP for entry into
FMS, the signed original is sent to PCMD-HQ.
b. Modifying a Delivery Order
When requesting a modification of an initiated removal, the Region
should provide the Regional Management Division with:
New estimate of total cost
Amount already obligated
DCN of the initial Delivery Order
Account number, site name
The Management Division prepares a PR for the unobligated portion of the new
estimated cost and submits it for approvals and signatures. Within one work-
ing day of return from the approval process, the Management Division should
assign the appropriate account number and new DCN to the PR and forward the
commitment copy of the PR to RTP for entry into FMS. The signed original
copy of the PR is sent to PCMD-HQ where the Delivery Order Anendment is
executed.
It should be noted that all modifications to Delivery Orders must
be executed by PCMD-HQ, even though the total value of the DO may remain
under $250,000.
c. Initiating a Delivery Order Over $250,000
Following the procedures described above, the OSC/Ordering Officer
issues a DO for $250,000 and sends it to PCMD-HQ. The PR is prepared for the
total approved amount of the removal. PCMD-HQ will issue a modification to
the Delivery Order for the additional amount over $250,000. (If no Delivery
Order is issued by the Regional OSC/Ordering Officer, the Region prepares the
PR for the total approved amount, obtain approvals, and assigns accounting
data. The commitment copy is sent to RTP for entry into FMS and the signed
original copy of the PR is sent to PCMD-HQ where a Delivery Order for the
total amount will be issued.)
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d. Initiating a Delivery Order Over $1 Million
All removal actions over $1 million must be approved by the AA,
OSWER. Cnce the AA approves the action memo, the Region may proceed as
outlined above.
e. Completing a Delivery Order
ERGS contractors will submit separate payment vouchers for each
DO. Vouchers may be submitted during the course of the cleanup but may not
be submitted more frequently than monthly. The OSC must certify each voucher
and expeditiously forward it to RTP-FMD for payment.
3. Non-ERCS Financial Management Procedures
Vtien using alternatives to ERGS, i.e./ Order for Services/
Notice to Proceed (NTP) or Letter Contracts, OSCs should use the following
procedures:
a. The OSC should complete and sign the obligating document
(Order for Services, NTP, Letter Contract), except for the accounting
information defined above in Section H.I.
b. Depending upon the procedures established in each Region, the
accounting information will be entered by the OSC/Ordering Officer, Regional
Financial Management Officer (FMO), or other designated Regional Management
Division staff. If the OSC/Ordering Officer enters the accounting informa-
tion, he/she should obtain a DCN and an account number by calling the
designated Management Division contact during normal duty hours, and should
follow established Regional procedures for obtaining DCNs and account numbers
during non-duty hours. If the appropriation number and object class category
are not already preprinted on the DO, the OSC/Ordering Officer should enter
these numbers.
c. The original signed copy of the obligating document should be
submitted to PCMD-HQ for definitization. A certified copy should be sent to
FTP for entry of the obligation into FMS.
d. If it becomes necessary to increase the amount of the
obligation, PCMD-HQ must issue a modification to the contract. The Region
should follow the same procedures as for modifying a Delivery Order.
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I. REPORTING REQUIREMENTS
1. PQLREPS
; POLREPS (Pollution Reports) provide factual operational data
surrounding the incident and a current accounting of the total funds allocated
in an incident. POLREPS should also detail measures to assure that the
affected community is properly and fully informed of all response activities,
in accordance with community relations requirements referenced in Section U.
The Regions should bear in mind that POLREPS are a method of alerting HQ that
critical events may be pending and that requests/actions are about to be
initiated. However, all requests for HQ decisions must be formally submitted
in accordance with Section C of this guidance. To properly assist HQ manage-
ment, routine pollution reports are sent to ERD at (202) 755-2155 (Telefax,
Dex 4100), 710-822-9269 (TWX)*, or 892786 (TELEX for USOG POLREPS) and
should contain the following pertinent information:
a. Initial POLREPS
An initial POLREP should be sent for all immediate removals to
inform HQ of the upcoming actions. This initial POLREP should describe the
incident; indicate whether an immediate removal has been requested or approved
by the RA; give the status of actions (including enforcement); describe the
next step(s); and indicate when a signed action memo will be transmitted to
HQ.
b. Progress POLREPS
Routine progress reports should be submitted to the ERD a minimum
of once every week for sites, and daily where practicable for classic spills.
Progress POLREPS should identify the following:
(1) Situation Present status of ongoing response activities;
(2) Actions Taken Activities undertaken since last POLREP;
(3) EXiture Plans Planned actions by the OSC;
(4) Project Costs Estimate of funds obligated thus far,
(including a breakdown of cost categories as shown on page 13) the estimated
weekly rate of the expenditures, and anticipated future funding needed.
(5) Any other pertinent information such as status of efforts
to obtain cleanup by responsible parties.
*ERD has made available to EPA response personnel the use of Western Union's
Datagram Service, which allows POLREPS to be sent from any phone to any TVK
equipment. Datagram access codes and instructions have been provided to all
Regions.
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c. Incremental Request POLREPS
Although all requests seeking approval to continue removal beyond
the $1 million limitation must be officially transmitted under RA signature
in the form of an action memorandum to ERD for consideration by the Director,
OERR, and the Assistant Administrator, OSWER, a phone call should be made to
the ERD Project Officer, followed by a POLREP detailing such developments,
to advise HO before official transmittal of the request.
d. Final POLREPS
When a removal action has been completed, a final POLREP (e.g.,
POLREP 115 and FINAL) should be submitted which describes the final actions
taken at the release, results achieved, detailed final costs, and dates of
completion and demobilization.
e. Special POLREPS
POLREPS should be provided to ERD on inland and coastal incidents of
interest even where no Fund-financed removal was taken by EPA. Also, POLREPS
should be provided to ERD on all major unanticipated developments of interest
at approved removal actions, (e.g., fires, explosions, and all accidents even
if no damage or injury has been caused) not covered by other progress reports.
In addition to reporting accidents to ERD via POLREP, a removal action
accident report (see Appendix 10) should also be completed and submitted to
ERD. This form was developed to provide more detailed documentation of
circumstances surrounding accidents during the course of removal actions.
2. Final OSC Report
The NCP discusses the requirement for final OSC reports in §300.56 as
part of Subpart E - Operational Response Phase for Oil Removal. Although
final OSC reports are not addressed in Subpart F - Hazardous Substance
Response, a final OSC report must be prepared for all CERCLA-funded removal
actions.
The final OSC report format can be found in $300.56 of the NCP. Within
60 days after the conclusion of a removal action, a copy of the final report
prepared by an OSC should be submitted to ERD. It is necessary that ERD
have these final OSC reports on hand for information and to respond to
inquiries from the public, Congress, Office of Inspector General, and the
General Accounting Office.
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J. STATE ROLE
EPA encourages State involvement in CERCLA response to the maximum extent
consistent with their capabilities, willingness and needs. Each state's
inyolveroent will be tailored to the situation in that State. The division of
responsibility between the State and EPA, and any associated Federal funds,
will be negotiated and incorporated in a Superfund State Contract (SSC),
EPA/State letter contract for procurement of services, or other agreement
(consult ERD for more guidance before making such agreements) between the
OSC and the State. Cooperative agreements have been only minimally utilized
in the removal program to date.
1. Immediate Removals
For the present time, all immediate removals will continue to be EPA-lead
actions. States may make informal arrangements with OSCs to perform certain
volunteered actions (without compensation) to support the removal action.
Alternatively, State services can be procured by EPA from the State through a
Letter Contract negotiated before the service is provided. Allowable costs
incurred by the State may only be considered for reimbursement if such costs
were specifically preauthorized by the OSC.
2. Planned Removals
Planned removal actions must be requested by the Governor of the
affected State or his/her designee. The request is known as the State's
letter of intent and must include (1) a description of the nature and extent
of release; (2) a description of action taken or underway at the site; (3) a
description of the proposed planned removal; and (4) assurances that the
State will pay at least 10 percent of the costs of the action, or at least
50 percent or such greater amount as EPA may determine appropriate, taking
into account the degree of responsibility of the State or political
subdivision, of any sums expended in response to a release at a facility
that was owned at the time of any disposal of hazardous substances therein
by the State or a political subdivision thereof, and all future maintenance
costs. A State may choose to contribute services in order to meet all or
part of their cost share.
To date, almost all Superfund planned removals have been EPA-lead
actions. Planned removal SSCs have been executed for these situations to
document respective EPA and State roles and to obtain the necessary State
assurances. The Region works with the State to develop a draft SSC and
coordinates with Regional Counsel to finalize the SSC. The RA signs two
original SSCs and these are forwarded to the State for their signature(s).
Once signed by the State, one SSC is kept by the State, the other is sent to
the Regional office. The OSC should retain one original signed SSC and send
a copy of the executed SSC to ERD for inclusion in the project file. No
site action may commence until the SSC is fully executed.
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Vliile State lead on planned removals is not precluded, it has been so
infrequently sought, that OSCs should contact ERD for further information if
such an occasion arises. In all removal actions an understanding should be
reached with the State at the beginning of the removal as to what State
services will be reimbursable through a prenegotiated Letter Contract or
allowable toward the State's cost share requirement through a SSC or
cooperative agreement.
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K. SECURING RESPONSIBLE PARTY RESPONSES
EPA will seek responsible party response before initiating
Federally-financed removal actions, if feasible to do so. In addition, the
Agency will pursue all opportunities to recover costs it has incurred.
Before seeking Superfund funding the OSC should, with assistance from
Regional Counsel, make a reasonable effort to identify and compel legally
responsible parties to undertake necessary response actions. The level of
effort determined to be reasonable will depend upon the immediacy and
seriousness of the release situation. Procedures to identify responsible
parties to perform or fund the response are set out below.
1. Immediate Removal
In any immediate removal situation, efforts to identify responsible
parties must include, at a minimum, oral inquiries of reasonably available
on-site sources who may be knowledgeable of the situation. If a potentially
responsible party is identified, the OSC must verbally request that the party
respond, and inform him of the Federal interest and potential liability he
may incur if it is determined that he is a responsible party and he fails to
respond or responds improperly. The CSC shall notify appropriate Regional
enforcement personnel as soon as possible and assist them in continuing to
seek response by the private party. It is recognized that in certain
emergency situations the OSC may have to first initiate Federal response and
coordinate with Regional Enforcement personnel afterwards. A notice letter
will be sent to the responsible party by the Regional program office to
confirm the verbal request for response and notification of liability.
Considering the limited time available in immediate removal situations, it is
not necessary that a notice letter be sent prior to initiating the adminis-
trative order process; however, a notice letter should be sent as soon as
possible to confirm the oral notice. The EPA manual entitled "CERCLA Notice
Letters" (OWPE, May 1984) contains detailed guidance on preparing and issuing
notice letters.
If responsible parties fail to act in response to oral notice, it may
be appropriate to issue an administrative order under CERCLA section 106
that requires the responsible party to undertake response activities. While
previous Agency policy was to proceed with Fund-financed response if the
potentially responsible parties refused to act, the Agency will now issue
administrative orders in appropriate circumstances before activating the
Fund, so long as the delay in initiating a response does not pose an
unreasonable risk of harm to the public health, welfare, or the environment.
The OSC and Enforcement should agree on a deadline for the conclusion of
responsible party negotiations for cleanup in a time-frame that is commen-
surate with the immediacy of threat posed by the release. If this deadline
expires and the responsible party has not agreed to implement the cleanup,
or the S106 order is not issued, the OSC may initiate Fund-financed cleanup.
The Region should establish a procedure for resolving conflicts between
offices and avoiding any delays in EPA response caused by responsible party
negotiation. If the recipient of an administrative order agrees to
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undertake the response measures contained in the order, the agreement may
be in the form of a Consent Order. The OSC will monitor compliance with
this Order and identify steps to bring parties in compliance if the terms of
the Consent Order are breached. If the recipient does not agree to terms of
the Order, the Fund will be used for site response, and the recipient will
be'sued for cost recovery, including punitive damages in appropriate cases.
Guidance on the issuance of administrative orders for removals is included
in the memorandum "Use and Issuance of Administrative Orders under $106(a)
of GERCLA" (Courtney Price, Lee Thonas, September 8, 1983) and "Issuance of
Administrative Orders for Immediate Removal Actions" (Lee Thomas, February 21,
1984). (See Appendix 11).
2. Planned Removal
Because the need to act is somewhat less urgent in a planned removal, a
more thorough effort to determine the existence of a responsible party and
to compel that responsible party to respond will generally be possible.
Efforts to identify and obtain a response by responsible parties should be
undertaken by Regional program offices, and the Office of Regional Counsel.
Efforts to obtain a responsible party response shall follow the same
general procedures as those for remedial actions. Notice letters will be
issued to potentially responsible parties and, depending on the response, an
Agency team of Regional technical and legal personnel will quickly schedule
negotiations aimed at securing private party cleanup within an established
period of time.
In the typical scenario, Regional program offices will send notice
letters to all known responsible parties prior to the initiation of the
planned removal action. As soon as possible, thereafter, Regional program
offices (after consultation with the Regional Counsel) will advise the CSC
if a responsible party does not exist, cannot be identified, or is likely to
be judgment-proof for all or a significant portion of the needed response.
In these circumstances, the release is eligible for further consideration as
a Fund-financed planned removal action.
If parties are found that are responsible for all or a substantial
portion of the release, and those responsible parties are determined to be
unable or unwilling to proceed with voluntary response actions, an adminis-
trative order may be issued to compel private-party response, if time permits,
in lieu of Fund-financed response. If site conditions deteriorate presenting
a corresponding increase in the threat to public health or the environment,
the Fund can be used for a response while the administrative order process
continues. The order will be revised to require the potential responsible
parties to undertake site actions at the next convenient break point in
activity. Procedures for issuing administrative orders are the same for
both immediate and planned removals.
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If a positive response to the notice letter is received, a team of
Headquarters, Regional and possible DOT technical and legal personnel will
quickly schedule a finite period of settlement negotiations with the
responsible parties. Fund-financed response is appropriate if no settlement
is reached.
Further guidance on how to conduct a responsible party search can be
obtained fron Regional enforcement personnel, Regional Counsel, OECM-W, OWPE
or the National Enforcement Investigation Center (NEIC).
3. OSC Oversight of Responsible Party Cleanups
When an CSC monitors a responsible party cleanup, he should employ the
same cleanup standards as those EPA would use in a CERQA-funded removal.
Once the CSC approves the cleanup strategy of the responsible party, TAT may
be used for monitoring the cleanup. However, the CSC should return on-site
if there is any indication of responsible party delay, non-compliance, or
change in cleanup strategy. The responsible party should be made aware that
EPA will take over the response if it proves to be ineffective. It may be
necessary for EPA to supplement responsible party response where such
capabilities are limited. Such costs will be recoverable against the
responsible party.
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L. WORKER AND VISITOR HEALTH AND SIIE SAFETY
The OSC should be aware of hazards to worker and visitor health and
safety at Federally-funded removal actions. Further, the OSC should exercise
great caution before proceeding into the affected area, especially before
the nature of the release has been ascertained. The OSC, as the Federal
official, must conform to applicable Agency as well as Occupational Safety
and Health Administration (OSHA) requirements and other guidance. All States
with OSHA-approved programs and private contractors at the scene of a release
must conform to applicable provisions of OSHA, and should conform to their
own requirements. OSHA can enforce OSHA requirements and may be able to
enforce State and private contractor requirements. States without OSHA-
approved programs must conform to their own requirements for their State
employees. Vtiile the OSC has no "police powers" for enforcement of safety
requirements, he has the responsibility to inform all site personnel and
visitors of such requirements.
1. General Safety Procedures
EPA has developed Interim Standard Operating Safety Guides (revised
September 1382). formerly.the Interim Standard Coeratina Safety Proceduresf.
wm.cn provide recaSnenaations on trie safe conduct of removal operations. It
is important that each Regional Office develop standard safety procedures,
consistent with these recommendations/ for use during response actions and
that the OSC apprise visitors and workers as to the proper safety equipment
to be used on site in accordance with these procedures. In general, they
should address the following requirements:
a. Procedures should be in written form and should be prepared
in advance of anticipated use rather than under the stress of an emergency.
b. Procedures should be based on the best available knowledge,
operational principles, and technical guidance.
c. Procedures should be field tested, reviewed, and revised, when
necessary, by competent safety professionals.
d. Procedures should be understandable, practical, feasible, and
applicable.
e. All personnel involved in response operations should be briefed
on operating procedures, and provided with a copy of the written procedures.
f. Response personnel should receive thorough and periodic training
in operating procedures.
ncnitoringSprogrlra?0"36 Personnel should be participating.in a medical
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h. All EPA personnel working or visiting on-site must have
completed Field Employee Training Requirements in accordance with EPA Order
1440.2.
i. All EPA personnel who use respirators must participate in a
respiratory protection program in accordance with EPA Order 1440.3
(Respiratory Protection).
2. Site Specific Safety Plan
Because response activities associated with each specific incident are
unique, standard procedures will often have to be adapted or modified to meet
the incident-specific requirements. For this reason, a written safety plan
must be prepared for each incident, distributed, and posted in the command
post. This should be done, if possible, before removal operations begin on
the site. If it is not done before on-site operations begin, it should be
done as soon as possible thereafter. The plan must cover all phases of
incident operations and identify key personnel. As a minimum requirement,
the safety plan should address the following:
a. Establishment of the number of personnel permitted to enter
the contamination zones.
b. Establishment of entry and escape routes.
c. Establishment of procedures to identify, locate, and alert
off-site medical personnel.
d. Determination of physical, chemical, and biological properties
of known contaminants.
e. Establishment of support area, decontamination area, and
exclusion area.
f. Establishment of decontamination protocol.
g. Establishment of levels of protection.
h. Establishment of personnel area air monitoring protocol.
i. Establishment of general safety rules and equipment.
j. Scheduling of daily safety meetings.
k. Posting of key agency and emergency contacts.
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M. DOCUMENTATION FOR COST RECOVERY
1. Purpose of Cost Recovery Documentation
Due to the possibility of cost recovery efforts in any case in which
CERCLA funds are expended, the observation, documentation and preservation of
critical facts and response costs are important to assure that:
a. Potential evidence concerning the release site and responsible
parties is noted and documented before response activity or the passage of
tine obscures or eliminates it;
b. Physical evidence essential for a trial is collected and
preserved appropriately; and
c. Sufficient evidence of total costs paid has been maintained
and is available to support recovery by the government.
2. Essential Evidence for Cost Recovery
The essential elements of a cost recovery action and the nature of
evidence required to sustain them are:
a. Evidence of release or substantial threat of release of a
hazardous subs tance
b. Evidence of responsibility of defendant(s) for presence of the
hazardous substance.
c. Information that removal action taken by EPA or the State is
not inconsistent with the National Contingency Plan.
d. Proof of costs of removal action by EPA or the State.
Further Guidance on this subject has been issued by the Office of
Enforcement Counsel and the Office of Solid Waste and Emergency Response. See
"Guidance on Pursuing Cost Recovery Actions under CERCLA," August, 1983. Also,
Section R of this document deals with cost control information for documenting
all intramural and extramural project costs necessary for cost recovery.
3. Sample Language for State Cost Recovery Documentation
Cooperative Agreements and Superfund State Contracts should include
language that provides for cooperation and coordination between EPA and the
State in documenting removal costs. Language in the cooperative agreement or
contract should reflect the evidentiary needs described above. For further
information on this issue, see Office of Legal Enforcement Policy memo on
Coordination of EPA State CERCLA Cost Recovery Negotiations Litigation
(August 1983). An interagency cost recovery work group will provide more
detailed cost recovery guidance and language for Cooperative Agreements.
In addition, language should be added to reflect specific needs for
quality control, quality assurance, chain of custody, and information audits:
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N. RESPONSE AT FEDERAL FACILITIES
Trust Fund monies may be used to conduct removals at Federal facilities,
except for DOD facilities (per the DOD/EPA MOU of August 12, 1983) as
explained below. EPA policy regarding Federal facilities is for the respon-
sible agency to conduct and finance the removal. This does not release the
responsible agency from the notification requirements of Section 103 of
CERCLA. If the agency cannot respond in a timely fashion, EPA may conduct
the removal using Trust Fund monies and seek reimbursement from the respon-
sible Federal agency. Administrative procedures for EPA removals at Federal
facilities are under development by OERR.
Under section 300.33 of the NCP, EPA does not have authority to respond
to releases on Department of Defense facilities. However, EPA can respond
to that part of a release that leaves DOD facility property. An MOU between
DOD and EPA sets forth the policies and procedures governing the agencies'
relationship at DOD facilities. According to the agreement, DOD is
responsible for undertaking and financing removal actions, but, in limited
circumstances, EPA can respond or provide technical assistance to support
DOD's responses at the request of DOD. Where EPA expends funds, DOD must
reimburse the Fund for its share of the costs.
Within this general framework, the respective responsibilities of DOD
and EPA vary somewhat depending upon whether the source is a current or
former DOD facility and whether DOD is solely or jointly responsible for the
release. At active facilities, DOD will assume responsibility for conducting
and financing the response action, unless the facility is one of several
sources of the contamination in which case EPA and DOD will jointly determine
the most appropriate response and financing methods. DOD must obtain consent
from EPA in order to conduct response actions at former DOD facilities. When
a former DOD facility is one of two or more sources of the release, EPA will
take the lead in both financing and cleanup activities at the former facility.
In these cases, DOD will reimburse EPA by means of an interagency agreement,
the details of which are now being finalized.
The DOD/EPA MOU of August 12, 1983, in the Removal Program Policy
Notebook provides more detailed information on these policies and procedures.
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0. THE ROLE OF OTHER FEDERAL AGENCIES AT NON-FEEERAL FACILITIES
1. U.S. Coast Guard
. Only EPA or the U.S. Coast Guard (USCG) may provide the lead in responses
at'non-Federal facilities. On October 9, 1981, the USCG redelegated to EPA
certain authorities previously delegated to USCG under Executive Order 12316.
These redelegated authorities give EPA the lead responsibility for removal
actions for a release or threat of release of hazardous substances at active
or inactive hazardous waste management facilities located in the coastal
zone, Great Lakes waters, and ports and harbors.
The USCG retained the response authorities in the coastal zone, Great
Lakes waters, and ports and harbors, as follows: responses to releases or
threats of releases from vessels; immediate removal actions concerning releases
or threats of releases at facilities other than active or inactive hazardous
waste management facilities; and immediate removal actions concerning releases
or threats of releases at active or inactive hazardous waste management
facilities when a Coast Guard CSC determines that such action must be taken,
pending the arrival on-scene of an EPA CSC. Unless otherwise agreed upon by
EPA and the Coast Guard, the USCG will not exercise this authority unless
the EPA CSC is scheduled to arrive on-scene within 48 hours of notification
of the release or threat of release.
2. The Federal Emergency Management Agency
Section 101(23) of CERCIA defines removal to include evacuation and
temporary relocation. Such activities are undertaken when the public health
and welfare is threatened by: 1) the release of a hazardous substance or
contaminant; 2) actual or potential releases of a hazardous substance as a
result of response efforts, e.g., threat of inhalation of contaminated dust
created during response efforts.
Under CERCLA and the Disaster Relief Act of 1974, the Federal Emergency
Management Agency (FEMA) is authorized to participate in temporary relocation
activities associated with immediate removals. FEMA's participation may
consist of technical assistance to EPA and/or a State as well as actual
implementation of a temporary relocation. EPA and FEMA currently are
developing an MOU which will summarize policy and procedure governing the
responsibility of each agency.
Technical assistance may include: contributing to the identification of
relocation options, identifying the necessary elements of a relocation action
and, estimating relocation costs. FEMA also may assist in determining the
need for a temporary relocation, although the final decision rests with EPA.
Either FEMA or a State may lead the relocation. When FEMA assumes the
lead, it is responsible for the following: providing all affected residents
with adequate housing; ensuring provision of appropriate welfare services;
and ensuring that maintenance requirements and costs are covered. Section
O.S.c outlines procedures OSCs should follow in contacting and coordinating
with FEMA.
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3. Health and Hunan Services
As authorized by section 104(i) of CERCLA, the Department of Health and
Hunan Services (HHS) will establish registries; conduct appropriate health
surveys and studies; develop and provide testing for exposed individuals in
cases of public health emergencies; develop and maintain information on
health effects of toxic substances; and maintain a list of areas restricted
or closed because of toxic substance contamination.
HHS activities in support of specific removals are conducted by the
Centers for Disease Control (CDC) and the National Institute of Occupational
Safety and Health (NIOSH). At the request of the CSC, CDC's activities may
include on-site data collection and review of site information to evaluate
the potential for human exposure to toxic substances and to determine if any
threat to human health exists. Following this analysis, CDC may issue a
Public Health Advisory that OSCs can use in selecting appropriate removal
activities. This health advisory is a tool that OSCs can use to determine
the need for response, however, it is not a prerequisite to a removal action.
EPA OSCs are advised to always obtain such advisories on dioxin, lead, and
asbestos sites or other chronic threats which could lead to acute effects.
In addition, during removal operations CDC can monitor the health of
residents who have been exposed to the hazardous materials or who live in
close proximity to the release. At the request of the OSC, NIOSH may provide
technical assistance to OSHA and EPA's Occupational Health and Safety staff
in testing worker protection equipment and gathering information for guidance
manuals.
4. Other Federal Agencies
In addition, EPA may use the specialized expertise of other agencies to
assist in providing response actions. These agencies and their areas of
expertise are listed below.
a. The Department of Agriculture
The United States Department of Agriculture (USDA) manages
agricultural, forest, and wilderness areas; provides scientific support and
expertise in examining the effects of pollutants on soil, plants, and animals;
provides assistance in animal disease outbreaks; procures emergency food
supplies; and conducts damage assessment estimates for natural resource
claims.
b. The Department of Conmerce
Through the National Oceanic and Atmospheric Administration (NCAA),
the Department of Commerce (DOC) will provide scientific support during
response actions on hazardous spills in coastal and marine areas. NCAA also
is responsible for the federal trusteeship for natural resources in coastal
and marine waters and certain upland areas. Scientific support provided
during response actions can involve expertise in areas unique to maritime
incidents, including meteorology, hydrology, and oceanography.
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c. The Department of Defense
The Department of Defense (DOD) provides assistance in disposing
of explosive ordnance, engineering support and salvage. Included within
the Department of Defense is the U.S. Army Corps of Engineers, which has
expertise in flood control, water supply/ maintenance of navigation, and the
environmental effects of discharging dredged material into navigable waters
and the oceans.
d. The Department of Energy
The Department of Energy (DOE) is capable of evaluating radiolo-
gically contaminated sites in order to determine if some response measures
are warranted to protect public health and safety. In addition, DGE can
participate in response actions through the conduct of engineering studies,
the removal and disposal of radioactive releases, and certification of final
site decontamination. See Section X of this guidance for further information.
e. The Department of the Interior
Expertise the Department of the Interior (DOI) offers includes
damage assessment capability and expertise in managing natural resources and
public lands under its jurisdiction, including those underlying the Outer
Continental Shelf. It also provides expertise on the geological and hydro-
logical movement of hazardous substances through land surfaces, subsurface
strata, ground and surface water, and endangered species.
f. The Department of Justice
The role of the Department of Justice (DOJ) is to represent the
Uhited States in litigation arising under the Oft and GERCLA, and assist in
training officials of the United States and States in matters relating to
civil and criminal enforcement of law.
g. The Nuclear Regulatory Commission
The Nuclear Regulatory Commission (NRC) will assist in responses
to incidents involving NRC licensees in accordance with existing plans
developed by NFC and the Federal Emergency Management Agency. In particular:
NRC licensees will continue to notify NRC of incidents in accordance with
published rules and regulations, NRC will continue to notify and update FEMA
about the status of each incident, and FEMA and the NRC will provide all
necessary information to the NRT. See Section X of this guidance for further
information.
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h. The Department of Labor
The Department of Labor's (DDL) role is to provide advice on labor
and employment related issues, as well as advice, guidance/ and assistance
regarding health and safety hazards to persons involved in oil and hazardous
substance emergency actions. Regional OSHA compliance personnel will enforce
existing health and safety standards at the site, ftjvice or assistance
provided by the Department of Health and Human Service's National institute
of Occupational Safety and Health in these areas will not preempt the applica-
tion of standards developed by the Department of Labor's Occupational Health
and Safety Administration under section 4(b)(l) of the Occupational Safety
and Health Act.
i. The Department of State
The Department of State (DOS) develops joint international
contingency plans and coordinates international response when an oil
discharge or hazardous substance release crosses international boundaries
or involves foreign flag vessels or facilities.
j. The Department of Transportation
The Department of Transportation (DOT) provides expertise on all
modes of transporting oil and hazardous substances. DOT, through the united
States Coast Guard (USCG), offers expertise in port safety and security;
maritime law enforcement; ship navigation and construction; and the manning,
operation, and safety of vessels and marine facilities. The USCG also
maintains continuously manned facilities which can be used for conmand,
control, and surveillance during oil and hazardous substance response
operations. For those areas where it provides the OSC, the USCG chairs the
Regional Response Team, which develops, implements/ and revises regional and
local contingency plans as necessary.
5. Administrative Procedures
This section describes current administrative procedures for arranging
for and compensating technical assistance from and response activities of
other Federal agencies at non-Federal facilities. For most of the agencies,
OSCs will use the procedures described in Section 0.5.a.; for the USCG and
FEMA, however, the procedures discussed in Sections O.S.b. and O.S.c.
respectively/ apply.
a. General Procedures
The OSC is responsible for identifying whether technical assistance
from another Federal agency is needed. OSCs may contact the Removal Operations
Team (382-2188) of ERD for assistance in making initial contact with and
arranging for the involvement of the pertinent Federal agency.
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In general, there are two mechanisms for funding the response and
response-related activities of another Federal agency: that agency's
Superfund budget or an interagency agreement (IAG). The nature of the other
agency's involvement will determine the compensation mechanism. For example,
if the service provided is defined as an "ongoing" activity, for which the
otfter agency has received a Superfund budget, no further transfer of funds
will occur. However, if the service involves site specific response actions,
the other agency typically will receive reimbursement through an IAG (except
as noted in Sections O.S.b. and O.5.C.). IAG procedures are described in
Section O.S.d. below, and OSCs should contact the ERD Guidance Development
Team for assistance in determining whether the other agency's involvement is
an ongoing activity or site-specific response activity requiring an IAG.
b. U.S. Coast Guard (USCG)
A Memorandum of Understanding (MOU) between EPA and USCG, signed
on January 4, 1982, allows the USOG to use the CERCLA Trust Fund for vendor
(extramural) costs incurred in Superfund response actions. Site specific
lAGe are used to reimburse USCG for out of pocket (personnel and equipment)
costs.
Coast Guard OSCs may obligate up to $250,000 for a single response
to a hazardous substance release, without first obtaining EPA HQ permission.
They must, however, obtain special reserved account numbers from EPA during
normal working hours or by contacting the NRC during non-duty hours. The
Coast Guard will then use its own contracting mechanism and send a copy of
the contract or other obligating document as well as certified invoices to
EPA Financial Management (Financial Management Officer, Accounting Operations
Office (MD-32) EPA, Research Triangle Park, Durham, N.C., 27711) for payment.
If the cost of the response exceeds $250,000, then CG obtains funding
from the EPA Assistant Administrator, OSWER, via a request to ERD. Likewise,
if the response cost will exceed $1,000,000, the statutory finding of CERCLA
104(c) is presented to the AA, OSWER, who will provide funding for the
response The request should contain the sane information required of EPA OSCs
and described in Appendix 2. The Coast Guard must submit POLREPS to ERD as
detailed in Section I.
EPA Regions should assure that their Coast Guard counterparts
understand and follow the guidance summarized above. For more detailed
information please refer to the USCG/EPA MOU of January 4, 1982.
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C. FEMA
FEMA participates in removal actions that necessitate evacuation
or temporary relocation. At the present time, EPA and FEMA are negotiating
an;MOU that will establish the general policies and procedures for FEMA
participation. In the interim, OSCs should use the following procedures.
The C6C has responsibility for deciding to undertake evacuation
and/or temporary relocation as part of a removal action. In carrying out
this responsibility the CSC must coordinate with FEMA and the pertinent
State and local health authorities as follows:
o The CSC may consider evacuation or temporary
relocation on his own or at the request of State
and local officials.
o In either case, subsection 300.33(b)(6) of the
NCP requires the CSC to advise FEMA immediately
of any potential major disaster situations as
well as situations that may require evacuation
or temporary housing. OSCs should contact their
FEMA Regional counterparts.
o In order to determine the need for and scope
of the evacuation or temporary relocation, the
CSC may request that FEMA provide technical
assistance by identifying, evaluating and
estimating the costs of alternative temporary
relocations. FEMA should report its findings
to the CSC as expeditiously as possible.
o The CSC also may rely on State and local
information and may request a Health Advisory
frcm CDC to support the decision to undertake
an evacuation or temporary relocation.
As with other agencies, funding is either via a Superfund budget
for ongoing activities or an IAG for site-specific activities. Until MOU
negotiations are completed, the CSC should seek assistance from ERD's Removal
Operations Team in obtaining an IAG. IAG procedures are described in Section
O.S.d. below.
d. IAG Procedures
Regions will approve, negotiate and award lAGs for site-specific
response actions. This includes:
o FEMA lAGs for temporary relocation.
o Coast Guard LAGs for assisting in EPA removals (Coast
Guard intramural costs).
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For these lAGs, Region personnel should use the following procedures:
o Regional Administrator or designee approves the action if
it is $1 million or less; requests AA, OSWER approval of
the action if it will cost over $1 million.
o Regional Program Division prepares the IAG funding package,
consisting of a Commitment Notice, Transmittal memo and
EPA Form 1610-1.
o Regional legal and administrative staff review funding
package.
o Regional Management Division adds accounting data and
ccnroits funds in their Document Control Register. A
copy of the connitment notice must be sent to FMD
Cincinnati for canmitment in the FMS.
o Regional Grants Office negotiates and signs IAG: sends
signed IAG to other agency for execution.
o Regional Grants office distributes executed IAG to:
Regional Management Division finance staff and Program
Division, FMD Cincinnati, BQ FMD-Financial Reports and
Analysis Branch, BQ Budget Division, and OERR Funds
Control Center.
IAG terms should require that monthly reports on technical program
and costs be sent to the Regional Program Division. For Coast Guard lAGs,
the Region will authorize reimbursement based on vouchers; FEMA receives a
transfer allocation, processed by the Comptroller, at the onset of the
evacuation/tanporary relocation.
All other lAGs will be processed and funded at Headquarters. The
Region should contact ERD's Removal Operations Team for assistance if other
types of lAGs are needed.
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P. COORDINATION WITH THE REGIONAL RESPONSE TEAM (RRT) AND NATIONAL RESPONSE
TEAM (NRT)
1. Regional Response Team
The OSC should, upon the initiation of any Superfund removal action, or
planning for such action, inform the RRT of the operation. The RRT should be
activated by the Chairman as an emergency response team when a hazardous
substance release:
a. Exceeds the response capability available to the OSC in the
place where it occurs;
b. Requires the expertise of one or more other Federal agencies
to facilitate the removal.
c. Transects regional boundaries;
d. May pose a substantial threat to the public health, welfare or
to the environment, or to regionally significant amounts of property, or
e. Any time the OSC determines that Federal/State/local coordi-
nation is essential to the removal.
Regional contingency plans shall specify detailed criteria for activation
of RRTs. Each participating agency, State or locality should designate one
member and at least one alternate to the RRT. It is imperative that the RRT
be used to provide proper coordination between involved agencies. Any member
of the RRT may request activation. Depending upon the circumstances of the
incident, the OSC or the RRT chairman may consider activation of the RRT
involving a limited number of representatives or by simple telephone contact
instead of actually convening the membership on site. Mien the RRT is
activated, affected States may participate in all RRT deliberations. State
government representatives in the RRT have the same status as any Federal
member of the RRT. Deactivation of the RRT shall occur upon agreement between
the EPA and USCG team members.
2. National Response Team
Activation of the NRT as an emergency response tean should occur when a
hazardous substance release:
a. Exceeds the response capability of the Region in which it
occurs;
b. Transects regional boundaries; or
c. Involves significant population hazards or national- policy
issues, substantial amounts of property, or substantial threats to natural
resources.
Any NRT member may request activation. More detailed information
concerning the RRTs and the NRT can be found in §300.32 (Planning and
Coordination) and $300.34 (Special Forces and Teams) of the NCP.
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0. PROVISION OF ALTERNATE WATER SUPPLY
Because of the pervasiveness of groundwater contamination, previous
OSVER policy was to limit removal action involving provision of alternate
drinking water supplies to those situations posing the most acute threats to
human health and welfare. A principal mechanism for doing so was the 1-Day
Health Advisories for drinking water contaminants issued by EPA's Office of
Drinking Water.
A memorandum from OERR, dated May 8, 1983, informed Regional personnel
of a change in policy whereby OSCs should use the 10-Day Health Advisory in
lieu of the 1-day Health Advisory. Since this change has the potential to
greatly increase drinking water incidents that qualify for removals, OSCs are
cautioned to consider other factors, including those in the decision rationale
outlined in Section C.2 and presented in detail in Appendix 1. This framework
contains a series of questions designed to guide the OSC's collection,
analysis, and presentation of data supporting the request to provide an
alternate drinking water supply. Additionally, the framework guides the
evaluation of the request.
When preparing a removal request addressing drinking water contamination,
OSCs should be able to demonstrate the threat posed by the drinking water
contamination. In particular, OSCs need to be aware of the complexities of
assembling and interpreting data to support the request. Removal actions
involving provision of alternate drinking water should be closely coordinated
with the Regional Office of Drinking Water.
Typically, the initial data on contamination may have come from routine
or spot testing of only a few wells in a community. Consequently, OSCs should
pay particular attention to whether these data provide a sufficient basis for
reliably estimating the present and projected threat and for selecting an
appropriate response.
In addition, OSCs often will not be able to rely on pre-established
numerical indicators to determine whether current or projected contaminant
levels present an acute danger or threat. For example, the National Interim
Primary Drinking Water Standards and drinking water health advisories issued
by EPA establish numerical indicators for relatively few of the substances
OSCs are likely to encounter. Moreover, even where such indicators exist,
they are based on "model" assumptions about population and exposure
characteristics that may not be valid for the potential removal situation.
Finally, the difficulty in measuring the rate of and direction in which
a contaminated groundwater plume is migrating may limit the OSC's ability to
accurately project the potential risk of taking no action-. The removal
decision framework attempts to compensate for these problems by considering
population characteristics and other qualitative factors in addition to
numerical indicators or contaminant levels.
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R. COST CONTROL FOR SUFERFUND REMOVAL ACTIONS
During removal actions, all Regions must implement an effective cost
control management system. This management system must ensure the efficient
use of public monies, must enable all removal costs to be tracked against
program and statutory dollar ceilings, and must provide the necessary
information to provide the basis for cost recovery. The system recommended
for use by OSCs for tracking extramural contractor costs is presented in the
"Cost Control Manual for Superfund Removals." This system, which is currently
being updated and expanded to accommodate ERGS, can also be used to track all
costs that are recoverable, such as EPA intramural costs, mission contract
costs (TAT, NCLP, ERT/EERU) and State costs.
This system presents an on-scene management system to control, document
and verify costs incurred by cleanup contractors during immediate and planned
removals. The management system is based on three components: planning,
contractor selection, and project tracking. Information contained in the
manual has been presented to all EPA Regions through OSC training sessions.
Video-taped versions of this training are also available from each Region's
Superfund Coordinator.
There are three purposes for which removal costs must be tracked and
documented: 1) to assure that the $1 million statutory limitation and the
approved project ceiling are not exceeded, 2) to ensure efficient use of
cleanup resources, and 3) to maintain cost records for cost recovery.
For purposes of documenting costs incurred against the $1 million
limitation, OSCs must track the costs of the following:
o Commercial cleanup contracts
o NCLP services
o TAT services
o EKT/EEFIJ
o Regional laboratory services
o other Federal agency costs (i.e., Coast Guard, FEMA)
o Letter contracts for procurements with States and localities
o Direct intramural obligations (both Headquarters and Regions)*
o Site access or acquisition (policy under development)
For purposes of tracking against a total project cost, all of the above
items must be tracked plus costs associated with State services under a
Superfund State Contract.
For purposes of documenting costs for cost recovery .actions, OSCs shall
document all costs associated with the above mechanisms, including costs of
104(b) investigative studies to compute the total cost recovery figure.
* The Revised Cost Control Manual, when issued, will also present a method
to determine indirect costs.
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Bowever, when any of the above mechanians are used for 104(b) investi-
gatory actions before the official initiation of the removal, those costs shall
not be counted against the approved project ceiling or $1 million limitation.
Although at this time, TAT and EERU costs are being accurately tracked,
costs for NCLP services are not readily available to OSCs. The Ajency is
developing a means to enable site-specific accounting of NCLP costs.
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S. TAT SPECIAL PROJECTS
TAT Special Projects are to be used to provide OSCs with specialized
technical support services for unanticipated tasks that require immediate
performance. Examples include specialized laboratory analysis, hazard assess-
ments, specialists, and other support services which are eligible under the
special projects scope of work. Because of their relatively high cost to the
Agency, TAT Special Projects are to be used only when conventional technical
support mechanisms such as Regional analytical laboratories, the NCLP, the
ERT, and cleanup contractors are unavailable or infeasible. For example,
sample analysis should usually be accomplished through Regional laboratories
or the NCLP. Command posts should usually be provided by cleanup contractors.
VJien other support mechanisms are not feasible due to the urgency of the
situation, TAT Special Projects can and should be used.
TAT Special Projects can be either investigative prior to a removal
action approval, or in support of an OSC during an approved removal action.
All TAT Special Projects costs are eligible for cost recovery. Investigative
special projects expenditures (conducted under section 104(b) of CERCLA) to
identify the existence, extent, and threat of a release do not count toward
a subsequently established ceiling or statutory $1 million ceiling. All
other TAT Special Projects initiated during an approved removal action do
count toward the site's approved extramural ceiling and the statutory
$1 million limit, therefore, all associated costs must be tracked against
these ceilings.
Special Projects requests should be issued by the Deputy Project Officer
(DPO) to the respective Regional TAT Leader. On Special Project requests
that exceed an estimated cumulative cost of $10,000 per incident, approval of
the HO TAT Project Officer is required before the TAT Special Project can be
activated. The HQ TAT Project Officer will not grant approval until clearance
has been received from the Director, ERD. Therefore, to facilitate HQ
clearance, it is advisable to discuss TAT Special Project needs with your ERD
contact before issuing a request in excess of $10,000. In addition, a written
scope of work must be submitted to the HQ TAT Project Officer for all
investigative Special Projects in excess of $10,000.
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T. OPERATION AND MAINTENANCE COSTS
CERCLA section 104(c) places a six month limit on removal actions and
provides stringent criteria for extending the limitation. Unless these
criteria are met, the State or local government must assume responsibility
for O&M costs no later than six months after the removal begins.
If the OSC knows that O&M will be necessary after the removal action is
completed, the OSC should obtain an agreement from the State or local
authority to assume responsibility for O&M costs prior to initiating the
removal. If such an agreement cannot be obtained, the OSC should avoid
recommending any removal option that involves continuing O&M where other
options exist which may be implemented at once.
Seme situations may require O&M as part of all removal options. If no
State or local government agrees to assume responsibility for O&M costs, the
OSC will be required to justify to the RA any continuation of funding from
Superfund beyond the six month limit. Such a justification must meet the
statutory criteria for a six-month exemption, otherwise, funding for the
removal will be terminated.
For immediate removals, the performance of O&M activities by the State
or local authority after Federal responsibility has terminated may be
arranged through a written arrangement, i.e., Memorandum of Understanding
(MOU) or letter agreement with the State. Specific guidance on such a
mechanism will be developed by ERD in the near future.
For planned removals, the performance of O&M activities by the State
after Federal responsibility has terminated must be stipulated in either an
SSC or a Cooperative Agreement respectively, depending on whether EPA or the
State has the lead in the removal action. Under no circumstances can O&M
exceed six months for planned removals unless the situation deteriorates to
warrant immediate action.
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U. COMMUNITY RELATIONS PLANS DURING REMOVAL ACTIONS
In each Region, the Superfund Community Relations Coordinator and the
responsible program office will coordinate fully in implementing community
relations activities for Superfund removal actions. For removal actions,
community relations profiles or plans (CRPs) are prepared by the Region in
consultation with removal program technical staff, and in accordance with
EPA's Community Relations Policy (May 1983) and Handbook (September 1983).
Regions are encouraged to consider use of the RKT to assist in community
relations activities. Copies of the Community Relations Profile or Plan
should be sent to the Region/Headquarters office which approves funding for
the action.
1. Immediate Removal Actions
Planning for community relations during immediate removals entails:
o Obtaining background information on the community
affected by the release of hazardous substances and
the possible effects of the release;
o Developing a community relations program that meets
the special needs of the community; and
o Establishing a working relationship between the
Superfund technical staff and Community Relations
Coordinator.
Sane releases of hazardous substances require a short term immediate
removal action lasting no longer than a few days. These kinds of actions may
not involve substantial community relations planning because of the nature of
the emergency. In other cases, however, the iranediate removal may require
longer term action and may generate considerable public interest and need for
information. For actions that may last longer than 5 days, a community
relations profile a short form community relations plan (CRP) must be
prepared. If an action is anticipated to last longer than 45 days, a CRP
must be prepared.
The ccmraunity relations profile explains how program and Superfund
community relations staff intend to plan for and implement community relations
activities at the site. It should contain a brief outline of the nature of
community concern, the key site issues, the objectives of community relations
activities, and the communications activities considered for the site.
The immediate removal CRP should be prepared as soon 'as it is known that
the response action may last longer than 45 days. The plan should succinctly
state the site background, the nature of the community concern, the key site
issues, the objectives of the community relations activities, andjspecific
activities to be undertaken at the site. The CRP should be submitted to
OERR/CRP Section as soon as possible after the approval of the immediate
removal request.
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AUG 2 0 I9&
-61-
The specific types of community relations activities during immediate
removals are likely to include meeting with citizens in the ccmmunity,
responding to inquiries from the media, and providing local officials with
site status information. By providing information as directly and quickly as
possible, the OSC will ensure that the community receives the information it
needs about the effects of the release on the community's health and safety
and the government's response action.
2. Planned Removal Actions
The program staff with the assistance of the ccmmunity relations staff
must design a community relations program and prepare a CRP for each planned
removal. Prior to preparing a CRP, program and ccmmunity relations staff
must meet with local officials and interested citizens to obtain information
about the site and to identify public concerns.
In addition, program and community relations staff can use these initial
discussions to explain the limited nature of a planned removal. Following
the activities contained in the CRP can help ensure that adequate attention
is given to the community's need for information and for input into technical
decisions at the site.
When the planned removal is concluded, a final report or "Responsiveness
Summary" must be prepared. This in-house report must .describe the ccmmunity
relations activities conducted, the major issues that arose at the site and
an explanation of how citizen concerns were considered during the response.
The purpose of the report is to document EPA and State actions, to assist in
community relations planning in the event that long term remedial response
occurs at the site, and to help plan for subsequent ccmmunity relations
programs at other sites. The summary may be used to help document for the
public record how EPA responded to key ccmmunity concerns and issues.
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V. REQUIREMENTS OF OTHER ENVIRONMENTAL LAWS AT REMOVAL ACTIONS
1. RCRA Requirements
1 Ordinarily, treatment and storage of hazardous wastes must occur in
facilities that have either interim status under $3005(e) of RCRA or a treat-
ment or storage permit from either EPA or a State authorized to implement
the RCRA hazardous waste program. However, OSCs managing immediate removal
activities are not required to obtain RCRA permits for onsite treatment and
storage. Through promulgation of the Discharge Response Exemption in the
Federal Register (Vol. 48, No. 13) on January 19, 1983, such requirements
are waived for individuals providing immediate response to releases or
imminent and substantial threats of releases of hazardous wastes. OSCs
providing planned removal responses will comply with RCRA requirements to
the extent possible considering the circumstances of the removal action.
Ultimate offsite disposal of all hazardous waste resulting from any
renoval action must be accomplished at a facility with a RCRA permit or
interim status. (Present policy being updated.)
2. Other Environmental Laws
Fund-financed and enforced removal actions (both immediate and
planned) must conform to the technical requirements of other environmental
programs to the greatest extent practicable based upon the nature of the
action. In evaluating removal alternatives which do not adhere to all the
requirements, EPA should consider such factors as the immediacy of the
hazard posed by the situation, the duration of the response action, the type
of action and the availability of alternative responses which do meet all
requirements.
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W. RESPONSES ON NATIVE AMERICAN LANDS
On Native American Lands, OSCs should use the procedures outlined in
Section C of this document to initiate removals for any releases that meet
the NCP criteria. For immediate removals on these lands, cost-sharing is
not required, since the cost sharing requirements for immediate removals
only pertain to States or political subdivisions, and Native American Lands
are considered to be neither.
At the present time, releases meeting the NCP criteria for planned
removals are subject to the cost sharing requirements of the NCP. In other
words, the State in which the Native American Lands are located and the Native
Americans must first reach agreement on providing appropriate cost-sharing
assurances, before a planned removal can be performed.
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. AUG 2 CU9&
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X. RADIOACTIVE WASTES
Vtien an OSC becomes aware of the release of a radioactive substance,
his/her first steps should be to determine whether 1.) EPA has authority to
respond and 2.) the release meets the removal criteria set forth in the NCP.
under CERCIA, EPA can respond to releases of radioactive wastes except those
excluded by CERCIA Section 101(22)(C), i.e.,:
o Release of source, byproduct or special nuclear materials
that are subject to the financial protection requirements
of Section 170 of the Atonic Energy Act (AEA).
o Release of source, byproduct or special nuclear materials
from certain processing sites designated under Section 102(a)(l)
or 302(a) of the Uranium Mill Tailings Radiation Control Act.
To ascertain the existence of an emergency situation, OSCs will need
to consult with the Office of Radiation Programs (ORP) in EPA and through
the RRT, with Nuclear Regulatory Commission (NRC) and DOE Regional staff.
Through these consultations, OSCs can obtain guidance on how to conduct
testing and monitoring and on whether the test results indicate an emergency
situation exists. OSCs should be aware, however, that the definition of
"emergency" under the Atomic Energy Act differs from that under the NCP.
The OSC must use the NCP definition and should seek assistance from the
Response Operations Team in applying the NCP criteria.
In undertaking response actions, OSCs should determine whether the
release is from a facility with a previous or current NRC license. For
releases from those facilities, EPA's policy is that the NRC should take
responsibility. However, OSCs may seek approval for a fund-financial removal
if they determine the NRC cannot act expeditiously or if the release is not
from a previous or current NRC license. OSCs should utilize the RRT to
obtain technical advice on conducting the removal activities and may enter
into an IAG with DOE or NRC.
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AUG 2 0 I9&
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Y. CLAIMS AGAINST THE FUND
CERCLA authorizes the President to use the Fund for the payment of two
types of claims: (1) for necessary response costs incurred by a party other
than the government in carrying out the National Contingency Plan (NCP) and
(2) for the restoration, rehabilitation or replacement costs of natural
resources that have been injured, destroyed or lost. Executive Order 12316,
signed on August 14, 1981, delegates to the Administrator of EPA the
functions vested in the President by Section 112 of the Act for all claims
presented pursuant to Section 111.
1. Response Claims
Most CERCIA cleanup actions should be undertaken by the responsible
party, by a State under a duly authorized Superfund cooperative agreement,
or by EPA's contractors. In addition, under $300.25 (d) of the NCP, any
person other than the Federal Government or a State or person operating
under contract or cooperative agreement with the United States must notify
the Administrator or his designee of the intent to seek reimbursement for
a response action and must receive prior approval (preauthorization) before
undertaking the action. Under current policy, all such requests for
preauthorization and any cleanup claims will be handled by and should be
referred to CERR in Headquarters.
2. Natural Resource Damage Claims
Section IIKi) of CERCLA provides that, except for emergency situations,
funds may not be used for natural resource restoration, replacement or
acquisition of equivalent resources unless a plan has been developed. This
plan must describe the purposes for which the funds are to be used. It must
be developed and adopted by affected Federal agencies and States if the
damage is to natural resources within the States' borders and belonging to
or managed by such states. Section IIKi) therefore requires that the
trustee obtain the prior approval (preauthorization) of EPA Headquarters
before undertaking either an assessment or restoration action.
The Agency will write regulations prescribing the claims procedures.
However, the Department of Interior, acting through Federal officials
designated by the NCP/ has responsibility for promulgating regulations for
the assessment of damages for injury to, destruction of, or loss of natural
resources pursuant to section 301(c)of CERCLA. Until the specific procedures
are developed for this process, all inquiries should be forwarded to and
will be handled by OPPM in Headquarters.
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AUG 2 0 I9a
APPENDICES
1. Decision Rationale
2. Draft Immediate Removal Action Memorandum
(Formerly the 10-Point Document)
3. Removal Delegations of April 16, 1984
4. Ceiling Increase Action Memorandum (Sample)
5. Draft Planned Removal Action Memorandum Outline
6. Summary of Approval Authorities for Immediate and Planned Removals
7. Superfund State Contract (Sample)
8. Exemption to Six Month Limit Action Memorandum (Sample)
9. Exemption to $1 Million Limit Action Memorandum (Sample)
10. Removal Action Accident Report
11. CSWER Guidance on Issuance of Administrative Orders
for Immediate Removal Actions
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2 0 1984
DECISION RATIONALE
INITIAL EMERGENCY SCREEN (Decision Point I)
o What release characteristics suggest a time-critical emergency?
- Has a sudden release occurred? Is a sudden release imminent?
_ Has a previous release posing a significant threat to human
health or the environment just been discovered?
o What substances are known to have been released or are likely to be
released imminently? What are the estimated quantities of each?
o How is the release or threatened release endangering human health
or the environment?
- Is the release known to have contaminated or does it pose an
imminent threat to a critical food supply?
- Has there been or will there imminently be an explosion, a fire,
or other release that threatens structures or the ambient air of
inhabited areas?
o What is the probable type of impact the release or threatened
release will have on human health or the environment?
- What are the known types of health effects from human exposure
(through inhalation, ingestion, or skin contact) to the
substances released, given the quantities released?
- Have there been any incidents of death, illness, or injury from
the release?
o Why is the request being made at this time? What would be the
result of waiting for more detailed analysis and investigations?
- For threatened releases, what are the indications (e.g.,
atmospheric/meterological, hydrological) that a release is
imminent?
- For releases, what are the likely additional health effects of
not taking action immediately? How many more incidents of death,
illness, or injury may be expected within 24 hours.
- If response to a release is delayed, how w'ill the situation
deteriorate (e.g., contamination is spreading rapidly, fire may
get out of control)?
- Will delay limit future response options?
%
Appendix 1
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2 0 (984
-2-
o What data are available to support the request? Is the data
comprehensive? Reliable?
B. REVIEW OF HEALTH THREAT (Dscision Point 2)
o What is the actual threat to health and environment? Is there a
threat of:
- Direct contact
- Fire or explosion
- Food chain bioaccumulation
- Air, water or food contamination?
o What evidence demonstrates that there is a threat to public health
or contamination of environmental media?
- What kinds of initial data are available (results of
sampling/analysis, hydrological or atmospheric data, other data)?
- Where did this informati.on come from and how reliable is it?
o What are the substances involved and what are their known or possibl
health effects?
- What substances have been found and at what levels?
- How consistent/reliable are the data? Provide details on sampling
methods and results of analyses.
- Do the contamination levels exceed Federal or State criteria,
standards, or guidelines of reportable quantities?
- What are the possible short-term and long-term health and
ecosystem effects (if known) of environmental media contaminated
by these substances at the levels demonstrated by sampling and
analysis?
o Is the contamination problem increasing in scope or severity?
- Are contaminants moving: In what direction? At what rate?
- Will the spread of contamination impact other geographical,
hydrologic, or atmospheric areas?
- How could the migration or the extent of contamination change?
(Could water consumption patterns or weather intensify the
problem.)
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«- u we
-3-
- Are there mitigative actions which might actually exacerbate the
problem?
o What is the time frame for response (immediate/planned removal or
. remedial action)? Specify why this time frame is chosen, with
regard to statutory limitations on the specified response.
How will the severity of the threat change over time?
How will the options for response actions change over time?
What is the health impact of delaying response or not acting at
all?
o How many people face an immediate threat? How many additional
people might be affected if response is delayed?
C. DETERMINATION OF POTENTIAL FOR FEDERAL ACTION (Decision Point 3)
o What is the source of the release? Is it known? Is it a small,
self-contained source (i.e. truck) or a massive chronic
contamination?
o Is there good reason to believe that adverse health effects are
resulting from the contamination or that dwellings and other
buildings are becoming uninhabitable?
o What efforts have been taken to find and obtain response by a
responsible party?
Who is the responsible party, if known? Can the party's
financial viability be ascertained?
What enforcement actions have been taken or are planned? (For
example, have there been any previous State or municipal actions,
notice letters, demand letters, CERCIA 106 or RCRA 7003 actions?)
Is the responsible party likely to act within a timeframe that
adequately protects public health? (e.g. have deadlines been
set for negotiation?)
o What can the State or locality provide?
o What is the status of State or local funding? How much can or will
the State or locality pay?
o With just initial information, what is the estimated cost and
duration of the removal action?
Will the cost likely be under $5,000 or over $1 million? Will
vit last longer than 6 months?
What are the components of the initial estimate?
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D. REVIEW AND SELECTION OF RESPONSE ACTIONS (Decision Point 4)
o What types of actions are available and necessary?
Sample analysis and documentation
*
Alternative water supply provisions
Fences or other barriers
Controlling source of release
Moving hazardous substances off-site
Erecting physical barriers to restrict contaminant flow
Controlling water discharge from upstream impoundments
Using chemical means of control
Executing damage control or salvage efforts
o Is evacuation necessary (justified by threat)?
o Is the removal action chosen directly related to the threat?
(e.g. are fences needed when well contamination is at issue?)
o What are the costs associated with each alternative, including
construction, operation and maintenance, or other costs?
o What is the technical feasibility and probable effectiveness of
each alternative?
o How long would each alternative take to start up? To finish?
o Are there opportunities for State and/or local involvement in some
alternatives?
o Are there public acceptance criteria associated with any
alternatives?
o Are legal implications raised by certain alternatives?
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ALG 20191
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Vfiat are the pros and cons of each alternative? Specify pros and
cons which address:
Intermedia relationships
Temporary vs. long-term solutions
Long-term "stewardship" needs
Potential for problem exacerbation instead of intended mitigation.
Considering cost, feasibility, time to implement and effectiveness,
what is the most appropriate response action? Briefly explain why
this option was chosen and why other alternatives were ruled out.
How does the chosen option specifically address the threat?
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AUS20I98
IMMEDIATE REMOVAL ACTION MEMORANDUM OUTLINE
This memorandum format is to be used for documentation of threat pursuant
to section 300.65 of the NCP and is a record of decision for both HO and PA
approved immediate removal actions.
I. HEADING
SUBJECT: Immediate Removal Request for the ABC Site, XYZ State
ACTION MEMORANDUM
Typical Memorandum Heading:
FROM: On-Scane Coordinator
TO: Regional Administrator
THRU: Regional Division Director as appropriate
NOTE; If the cost of the immediate removal is expected to
exceed $1 million the Action Memorandum is addressed to the
AA/OSWER, from the Regional Administrator, through the
Director/OERR and to the attention of Director/ERD.
II. PURPOSE
Basic Statement of Request: A short, narrative statement of the
immediate removal request.
III. BACKGROUND
A. Incident or Site Setting/Description
(Pictures, diagrams, maps, and/or sketches are encouraged.)
1. Physical location - state the County (or Parish), Township (or
incorporated unit) and State. Give distances from nearest
populated areas and points of reference as appropriate.
2. General character of site - describe the site's key problem
areas, e.g. drums, bulked liquids, lagoons, contaminated soils,
etc. or; general nature of the incident - in the case of a
classic release describe how the incident occurred.
3. W&ste management - describe any existing structures, measures,
or conditions that would either mitigate or accelerate the
release of any materials on site. For instance, _an unstable
dike, a temporary containment system, adverse weather
conditions, site security, fencing, and similar measures.
Appendix 2
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4. Surrounding Areas - describe the areas adjacent to the
or site in terms of nearby populations and ecosystems, and
areas protected by statute such as parks, historic sites,
sensitive ecosystems, etc.
B. ^lantity and Types of Substances Present: Describe the hazardous
substances in terms of categories or classes of chemicals. Those
categories listed in the NRDC Consent Decree (also known as classes
of priority pollutants) may be used as a convenient reference. Any
substances of critical concern (e.g. PCBs, dioxins) should be
stated. If estimates of quantities of the classes of materials are
available, they should be given.
C. One sentence should state whether the site is on the NPL. If the
site is on the NPL, when later remedial action is expected.
IV. THREAT
A. Threat of Exposure to Public or the Environment: The nature of
the threat at the site should be described in detail, relating the
threats to factors described in the National Contingency Plan
section 300.65(a). Any indications that all or any of the areas
described in III (A) (4) above, may be exposed to hazardous
substances should be described. Compare amounts of hazardous
substances shown to background or health standards as appropriate.
(NOTE: If the removal action will exceed the six-month/?! million
statutory limits, the factors in section 300.65(d) of the NCP must
be addressed).
B. Evidence of Extent of Release: Any contaminated surface water or
drinking water wells, either private or municipal, should be noted
as well as any obvious evidence of ecosystem damage. If off-site
monitoring has been performed (either air or water) the link should
be made between substances identified and those on the site.
Concentrations of off-site pollutants should be presented in the
same manner as those on-site.
C. Previous Actions to Abate Threat: Any Federal, State, local, or
privately sponsored activities that have been performed should be
briefly described and the dates, costs, and effectiveness of such
actions should be given.
D. Current Actions to Abate Threat: Any Federal, State, local, or
privately sponsored activities that are currently underway should
be briefly described. The estimated costs and completion dates of
these activities should also be given. If the 6 month time clock
has started, note when the 6 months ends.
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-2 01984
-3-
V. ENFORCEMENT (This information should be referenced here as "see
attachment" and placed on a separate page entitled
Enforcement Sensitive)
A. Active/Inactive: Summarize the enforcement strategy for notifying,
negotiating, and litigating against responsible parties. The
statement should tell whether the State or Federal enforcement
attorneys are actively pursuing informal negotiations, are actively
pursuing litigation, or have decided to postpone or not pursue
litigation.
B. Status of Notice Letters/Negotiations: A statement should be made
giving the date(s) that notice letter(s) were sent and a summary of
responses of the recipients. If negotiations are underway, describe
the activities under discussion. A projection should be made on
whether to expect responsible party action, or feasibility of
issuing an Administrative Order.
VI. PROPOSED PROJECT AND COSTS
A. Objectives of the Project: A short statement should be made
describing the specific tasks involved and the results sought by
the removal action as they pertain to the threats(s) discussed
in IV.
B. The estimated total project ceiling and an itemized breakout of the
following cost categories which comprise that ceiling: extramural
costs allowed under the RA's 31,000,000 authority (consisting of
cleanup contractor costs, letter contracts with states, and site
specific lAGs), TAT costs, intramural costs, National Contract Lab
Program analytical costs and ERT/EERU costs. For example, the RA
may set a total project ceiling in the following manner:
Cleanup Contractors $750,000
Letter contracts for procurement w/State 5,000
Interagency agreement 7,000
TAT costs 10,000
NCLP analytical services 20,000
ERT Study 20,000
Intramural (HQ and Region) 45,000
TOTAL PROJECT CEILING $857,000
If any CERCLA funds have already been allocated for this site, give
the amount and tasks involved. Indicate obligations to date if
appropriate.
C. Project Schedule: The estimated period of performance should be
given.
D. If applicable, describe how actions will be consistent with
remedial plan.
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-
VII. REGIONAL RECOMMENDATION
Use a paragraph such as; "Because conditions at the XYZ Site meet the
NCP section 300.65 criteria for an immediate removal, I recommend your
-. approval of the immediate removal request. The estimated total project
costs are $x/ of which $Y are for extramural cleanup contractor costs.
You may indicate your approval or disapproval by signing below. " if
the immediate removal will exceed the six month/$l million statutory
limit(s), cite specific criteria of NCP section 300.65(d).
Approve: _ Date:
Disapprove: _ Date:
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2 :
i
REMOVAL DELEGATIONS
Appendix three contains the current Removal Delegations dated April 16,
1984. These delegations are:
1) Delegation 14-1-A entitled Selection and Performance of Removal
Actions Costing Up to $1,000,000.
2) Delegation 14-1-B entitled Superfund State Contracts and Cooperative
Agreements for Removal Actions.
3) Delegation 14-2 entitled Removal Actions Initially Costing Over
$1,000,000 and Continued Removal Actions after Obligations of $1,000,000.
Appendix 3
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DELEGATIONS 1200
«<*.". i u
THE COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION AND LIABILITY ACT (CERCLA)
1 14-l-A. Selection anc* Performance of Removal Actions
Costing Up to SJ,000,000.
1. AUTHORITY. Pursuant to the Comprehensive Environmental Response, Coqpen-
sation, and Liability Act (CERCLA), to determine the necessity of and to select
and perform removal actions costing up to $1,000,000:
a. Where the action is expected to last up to six months;
b. Where the action is expected to last more than six months; and
c. Where the action was expected to last up to six months, but requires
continuation.
2. TO WHOM DELEGATED. Regional Administrators.
3. LLMITATIONS.
a. Removal actions will not continue after 51,000,000 has been obligated,
unless authorized to continue under Delegation 14-2, "Removal Actions Costing
Over 51,000,000 and Continued Removal Actions after Obligations of 51,000,000."
b. This authority shall be exercised subject to directives issued by the
Assistant Administrator for Solid Waste and Emergency Response.
4. REDELEGATICN ACTTHORITY. The authority in l.a may be redelegated to the
Division Director level. The authority in l.a and l.b may be redelegated to
On-Scene Coordinators (On-Scene Coordinators are limited to the approval of
removal actions costing up to $50,000 in total). The authority in l.a and l.b
may not be further redelegated. The authority in l.c may not be redelegated.
5. ADDITIONAL REFERENCES.
a. Section 104(a) of CERCLA.
b. Section 104(c)(l) of CERCLA.
c. National Contingency Plan (40 CFR 300.65 and 300.67) .
d. Superfund Removal directives.
e. The $1,000,000 limit includes all extramural costs and Headquarters
and Regional intramural costs, except for all enforcement costs.
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L U
'DELEGATIONS - ' * 1200
A??. 1 6 1SI
THE COMPREHENSIVE ENV1ROWENTAL RESPONSE,
COMPENSATION AND LIABILITY ACT (CERCLA)
14-1-B. Superfund State Contracts and Cboperative Agroanents
for Removal Actions
1. AUTHORITY. Pursuant to the Comprehensive Environmental Response, Compen-
sation and Liability Act (CERCLA), based on a determination that a State or
political subdivision is capable of carrying out response actions, to enter
into a contract or cooperative agreement, as appropriate, with such State or
political subdivision to provide for the performance of removal actions and to
obtain the necessary assurances for such removal actions.
2. TO WHOM DELEGATED. Regional Administrators.
3. LIMITATIONS.
a. This authority shall be exercised subject to directives issued by the
Assistant Administrator for Solid Waste and Emergency Response.
b. The authority to enter into a contract with States, for the purpose of
this delegation, does not extend to procurement contracts.
4. REDELEGATION AUTHORITY. This authority may be redelegated.
5. ADDITIONAL REFERENCES.
a. Section 104(d)(l) of CERCLA requires a determination of a State's
capabilities and authorizes contracts or cooperative agreements.
b. Section 300.67 (b)(4) of the National Contingency Plan requires that
the States make certain assurances for "Planned Removals."
c. Superfund Removal directives.
d. Procurement contracts are limited by the Chapter 1 delegation entitled
"Appointirent of Designated Agency Procurement Executive."
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f- U
DELEGATIONS 1200
A?K 1 6
THE COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION AND LIABILITY ACT (CERCLA)
14-2. Removal Actions Initially Costing Over $1,000,000 and
Continued Removal Actions after Oblications of $1,000,000
1. AUTHORITY. Pursuant to the Comprehensive Environmental Response, Compen-
sation and Liability Act (CERCLA), to determine the necessity of and to select
and perform removal actions costing over 51,000,000 and to authorize removal
actions to continue after $1,000,000 has been obligated.
2. TO WOM DELEGATED. Assistant Administrator for Solid Vfaste and Emergency
Response.
3. REDELEGATION AUTHORITY. This authority may be redelegated.
4. ADDITIONAL REFERENCES.
a. Section 104(c)(l) of CERCLA.
b. National Contingency Plan (40 CFR 300.65 and 300.67).
c. Superfund Removal directives.
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\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AUG
WASHINGTON, D.C. 20460
,. SAMPLE
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSI
DATE
MEMORANDUM
SUBJECT: Ceiling Increase Request for Immediate Removal Actions
at the ABC Site, Location, State ACTION MEMORANDUM
FROM: OSC
TO: Regional Administrator
NOTE; If the ceiling increase will bring the total project ceiling
above $1 million the ceiling increase request is addressed
to the AA/OSWER, from the Regional Administrator through the
Director, OERR, to the attention of the Director/ERD.
Issue
Region has requested a ceiling increase of $125,000 to complete
immediate removal actions at the ABC Site, Location, State.
Background
The ABC site lies on the shore of Big Harbor, adjacent to small
industrial and recreational facilities. One of three large aboveground
storage tanks contains approximately 300,000 gallons of waste oil, heavy
metals, and chemical liquids and sludges. Small leaks have already occurred
at the seams of the tank due to its poor structural integrity. Based on the
threats posed to the nearby public and the environment by the low flash
point materials (85°F) in the tank an immediate removal was submitted to
the Assistant Administrator, Office of Solid Waste and Emergency Response
(AA, OSWER).
On November 17, 1983, the AA, OSWER approved an extramural project
ceiling of $330,000 for removal actions at this site (see attached
memorandum). Approved actions included site security during cleanup,
removal of the contents of the central tank, transportation and disposal
of the tank contents, and tank decontamination.
Appendix 4
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AUG 20 1984
-2-
Actions Taken
Pumping and disposal of the tank contents were initiated on November 23
after a responsible party completed the removal of the contents of another
.tank. The top layer of liquid, the oil phase, was pumped off first, then the
middle layer, the aqueous phase, was pumped off. Due to restrictions imposed
by the incineration facility, 5000 gallons, rather than 15,000 gallons, were
disposed of each day. To date, 46,000 gallons of the oil phase and 164,000
gallons of the aqueous phase have been pumped off and disposed of.
Extremely cold weather has solidified more of the tank liquids,
generating additional sludges and creating some extremely viscous, umpumpable
material. The volume of sludges requiring disposal has increased from 24,000
gallons to more than 65,000 gallons.
Although initial analyses conducted by a private lab showed no PCBs,
recent testing by an EPA regional lab indicates the sludge phase contains
approximately 50 ppm. This has increased the estimated disposal cost
significantly.
Present Status
To remove extremely viscous sludges, the sludge must be liquified by
adding a solvent at a 1:10 ratio (solvent: sludge) and mixed. This will
allow the material to be pumped and will increase the sludge heat capacity
for disposal by incineration.
Of the $330,000 project ceiling approved for this point, $245,000 has
been expended during the removal and disposal of the oil and aqueous phases.
Due to the unexpected presence of PCBs, a large volume of sludges, and
unforeseen restrictions placed on liquid disposal, an additional $85,000 in
cleanup contractor funding will be required to complete the removal and
disposal of the tank contents.
Summary of Costs
Current Ceilings Proposed Ceiling
Cleanup
Contractors $330,000 $415,000
Intramural 10,000
TAT 30,000
TOTAL Project Ceiling $330,000 . $455,000
Remedial
The site is ranked in Group II of the National Priorities List. Funding
for the remedial investigation and feasibility study was approved through an
action memorandum signed July 25, 1983. The work assignment for that project
has been issued; however, field activities will not be initiated until the
removal action* is completed, in order to avoid endangering field workers.
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AUG 2 0 1984
<
-3-
Enforcgnent
See attachment.
Regional Recommendation
Ib eliminate the continuing threat posed to the nearby public and the
environment consistent with the immediate removal criteria contained in
section 300.65 of the National Contingency Plan, I recommend you approve
this $125,000 ceiling increase request, of which $85,000 will be utilized
by the private cleanup contractor for removal and disposal of the remaining
tank contents. The remaining $40,000 will be used for mission support and
intramural expenses. Your approval would raise the total project ceiling
from $330,000 to $455,000. You may indicate your approval or disapproval
by signing below.
(NOTE: If ceiling increase will exceed $1 million statutory ceiling, cite
NCP section 300.65(d) criteria and briefly address in this document the basis
for saying they are met.)
Approve: Date:
Disapprove: __j Date;
Attachment
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AUG 2 0
ENFORCEMENT
(e'g' reson parties
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AUG 2 0 198;
PLANNED REMOVAL ACTION MEMORANDUM OUTLINE
I. HEADING
SUBJECT: Authorization to Proceed with Planned Removal Action
. at the ABC Site, XYZ State ACTION MEMORANDUM
Typical Memorandum Heading:
FROM: On-Scene Coordinator
TO: Regional Administrator
THRU: Regional Division Director
as appropriate
NOTE: If the cost of the planned removal is expected to
exceed $1 million the Action Memorandum is addressed
to the AA/CSWER, from the Regional Administrator,
through the Director/OERR and to the attention of
Director/ERD.
II. PURPOSE
A. Basic Statement of Request: A short, narrative statement of the
planned removal request. This should include a statement regarding
the intent of the State to enter into a Cooperative Agreement or
to request a State Superfund Contract. Note that the Governor's
Letter of Intent is attached. If more than one State is involved,
a letter from the Governor of each State is required.
III. BACKGROUND
A. Site Setting/Description:
(Pictures, diagrams, maps, and/or sketches are encouraged.)
1. History of the site - how it came to be.
2. Physical location - state the County (or Parish), Township (or
incorporated unit) and State. Give distances from nearest
populated areas and points of reference as appropriate.
3. General character of site - describe the site's key problem
areas, e.g. drums, bulked liquids, lagoons, contaminated
soils, etc.
4. Waste management - describe any existing structures, measures,
or conditions that would either mitigate or accelerate the
release of any materials on site. For instance, an unstable
dike, a temporary containment system, adverse weather
s conditions, site security, fencing, and similar measures.
Appendix 5
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AUG2QI984
-2-
5. Surrounding Areas - describe the areas adjacent to the site
in terms of nearby populations and ecosystems, and any areas
protected by statute such as parks, historic sites, sensitive
ecosystems, etc.
B. Quantity and Types of Substances Present: Describe the hazardous
substances in terms of categories or classes of chemicals. Those
categories listed in the NRDC Consent Decree (also known as classes
of priority pollutants) may be used as a convenient reference.
Any substances of critical concern (e.g. PCBs, dioxins) should be
stated. If estimates of quantities of the classes of materials
are available, they should be given.
IV. THREAT
Identify the most dangerous threats first. Describe projected effects
of each threat. Be clear and factual in identifying the threat.
A. Threat to Public Health or Welfare or the Environment: The nature
of the threat at the site should be described in detail. Any
indications that all or any of the areas described in (A)(4) & (5)
above, may be exposed to hazardous substances should be described.
Factors described in NCP section 300.67(c) should be listed.
Compare amounts of hazardous substances shown to background or
health standards as appropriate.
(Note: If the planned removal will exceed the six month/Si millionBr
statutory limits, the document must state how the threat meets
criteria of NCP section 300.67(e).)
B. Evidence of Extent of Release: Any contaminated surface water or
drinking water wells, either private or municipal, should be noted
as well as any obvious evidence of ecosystem damage. If off-site
monitoring has been performed (either air or water) the link should
be made between substances identified and those on the site.
Concentrations of off-site pollutants should be presented in the
same manner as those on-site.
C. Previous Actions to Abate Threat: Any Federal, State, local, or
privately sponsored activities that have been performed should be
briefly described and the dates, costs, and effectiveness of such
actions should be given.
D. Current Actions to Abate Threat: Any Federa.l, state, local, or
privately sponsored activities that are currently underway should
be briefly described. The estimated costs and completion dates of
these activities should also be given. If the 6 month time clock
has started, note when the 6 months ends.
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V. ENFORCEMENT (This information should be referenced here as "see attachment"
and placed on a separate page entitled Enforcement Sensitive)
A. Active/Inactive: Summarize the enforcement strategy for notifying,
negotiating, and litigating against responsible parties. The state-
ment should tell whether the State or Federal enforcement attorneys
are actively pursuing informal negotiations, are actively pursuing
litigation, or have decided to postpone or not pursue litigation.
B. Enforcement Authority: If litigation is proceeding or is
contemplated, state under what statutory authority it will be,
or is being taken (i.e. RCRA §7003, CERCLA, etc.).
C. Potential Responsible Parties: A general statement should be made
describing the number and type of potential responsible parties
(i.e. generators, transporters and owners or operators). If a
site has one or two primary responsible parties they may be names.
If a search has been completed, the results should be summarized.
D. Probable Ability to Recover Costs: The solvency of the major
responsible parties should be estimated. An evaluation of the
ability to obtain the necessary actions in a timely fashion through
litigation may also be included if it explains why actions are
being requested of the EPA when responsible parties are financially
able to undertake these actions.
E. Previous Enforcement Actions: Any previous State or Federal
enforcement actions should be described as to the date, the request
and the outcome.
F. Status of Notice Letters/Negotiations: A statement should be made
giving the date(s) that notice letter(s) were sent and a summary
of responses of the recipients. If negotiations are underway,
describe the activities under discussion.
V
G. Reccmmendation: The enforcement strategy that is recommended by
the Regional enforcement attorney should be given. This would be
either to pursue Federally-funded action or continue litigation
or negotiations. Concurrence to proceed with planned removal is
given by CWPE. If this is conditional/ then conditions should be
noted.
VI. STATE ACTIONS
A. State expertise: The Region should state whether they believe
that the State has the required expertise to perform the removal
action proposed, in State-lead actions.
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20.198-
-4-
VII. IMPORTANT POLICY ISSUES (Only as necessary and applicable)
A. If the State's understanding or acceptance of the cost sharing
requirement is in question, explain the problem(s) and any
measures necessary or underway to resolve it (them).
B. Contiguous/non-contiguous sites: If multiple locations are
recommended by the Region for consideration as one site for the
purposes of performing a planned removal pursuant to CERCLA
section 104(d)(4), justification for such consideration should
be given.
C. Other: Policy issues such as the division of responsibilities
between Federal and/or State agencies, unresolved questions
regarding agreement with the State or local agencies over
recommended removal actions or cost-sharing, and similar issues
should be briefly described. The description should include the
efforts being made to resolve the issue and/or decisions that
must be made before a resolution is reached.
VIII. PROPOSED PROJECT AND COST
A. Objectives of the Project: A short statement describing the
specific tasks involved and the results sought by the removal
action should be made. Relate to the threat, particularly if
a NCP section 300.67(e) extension.
B. Costs: The estimated costs for the planned removal action (both
extramural and intramural) should be given. Costs are to be
broken down by major task. If any CERCLA funds have already been
allocated for this site, give the amount and tasks involved.
Indicate ceiling and obligations to date.
C. Project Schedule: The estimated period of performance should be
given. If an immediate removal has already started the six-month
time period, the date that the limit expires should be noted.
IX. REGIONAL RECOMMENDATION
Use a statement like "Because conditions at the XYZ site meet the NCP
section 300.67 criteria for a planned removal, I recommend your
approval of the proposed planned removal action. The estiinated total
project costs are $x, of which $y are for extramural cleanup contractor
costs." If the planned removal will exceed the six month/Si million
statutory limit(s), cite specific criteria of NCP section 300.67(e).
Approved: Date: _
Disapproved: Date:
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1984
SUMMARY OF APPROVAL AUTHORITIES FOR IMMEDIATE AND PLANNED REMOVALS
(CERCLA Delegations of April 16, 1984)
REQUEST
*
o Initial Immediate Removal (IR), up to $1 million, for
actions not anticipated to exceed $1 million to complete
o Initial IR, under $1 million, for actions anticipated to later
exceed $1 million to complete (including non-duty hours)
o Initial IR, known from outset of project to cost
over $1 million (including non-duty hours)
o Initial Planned Removal (PR), up to $1 million, for
actions not anticipated to exceed $1 million to complete
o Initial PR, under $1 million, for actions anticipated to
exceed $1 million to complete
o Initial PR, known from the outset to cost over $1 million
o IR/PR ceiling increase, within $1 million ceiling, for an
AA- or RA-approved action
o IR ceiling increase, to raise ceiling over $1 million,
for an RA-approved action
APPROVAL
AUTHORITY
o IR or PR six month exemption
o IR or PR $1 million exemption
o IR/PR ceiling increase, any amount, once ceiling has
exceeded $1 million
o IR/PR change in scope of work not involving
ceiling increase
o PR Superfund State Contract and any amendments
o PR State Cooperative Agreement and any amendments
o Interagency Agreements and any amendments
RA
AA
AA
RA
AA
AA
RA
AA
RA
AA
AA
Previous
approving
official
RA
RA
RA
Appendix 6
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SAMPLE
Superfund State Contract
for Planned Removal Activities at AUG 2 0
the XXY Waste Site
City, State
Between the State of (State name)
Department of (Appropriate State Office)
; and the U.S. Environmental Protection Agency (EPA)
(Draft - This is still subject to further revisions)
A, Authority
This Contract is entered into pursuant to sections 104 (a) (1), (c)(l),
and (d)(l) of the Comprehensive Environmental Response/ Compensation and
Liability Act of 1980, 42 U.S.C. 9601 et sec^. (CERCIA).
B. Purpose
This is an agreement between the U.S. Environmental Protection Agency
(EPA) and the (State Office) to provide for cleanup actions and other
required corrective measures at (the site). Such actions meet the
requirements of the National Contingency Plan, 47 FR 31180 (July 16,
1982) for a planned removal action.
C. Parties and Responsibilities
1. EPA has designated (name, address) to serve as On-Scene Coordinator
(CSC) for this Contract (OSC phone no.).
2. (State office) has designated (name, address) as the State Project
Coordinator for this contract (phone no.). (State representatives
should be designated per individual State requirements).
3. The OSC will nave responsibility and authority for all actions on
the site or pertaining to site actions. The OSC will coordinate
with the State Project Coordinator on decisions affecting work at
the site. The OSC will have full control over all on-site
personnel, but will not directly supervise the actions of, nor
assume any liability for injury to, or damage or harm caused by
any State personnel who might be on the site.
4. The State Project Coordinator will be on-scene to supervise State
personnel whenever they are working on the site during the cleanup
action.
5. The OSC and the State Project Coordinator may ihake joint decisions
that do not increase the scope or cost of the project. The OSC
will contact the State Project Coordinator upon any increased risk
to the safety or health or personnel and/or upon accide'nt at the
site.
Appendix 7
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AUG 20 1984
-2-
D. EPA Responsibilities
1. EPA shall furnish the necessary personnel, materials, services, and'
facilities, and otherwise do all things necessary for or incidental
i to the performance of its tasks as indicated in this Contract, and
shall pay 90 percent of the total project costs.
2. EPA shall provide the OSC, who will be responsible for directing
and managing the overall cleanup.
3. EPA will pay the site management costs which are part of the total
project cost and include, but are not limited to: OSC, support
staff, and Technical Assistance Team salaries, overtime, and travel;
per diem cost, and other Federal Agency costs incurred at the OSC's
direction; contract labs and Environmental Response Team (ERT)
expenses directly related to this site.
4. EPA will notify the (State Office) of the effective date of the
Delivery Order of the procurement contract for site cleanup and
the amount of the award.
5. EPA will coordinate site activities related to the cleanup with
other Federal agencies as appropriate.
6. EPA will provide information related to site cleanup activities to
interested parties, including local, State, and Federal agencies on
the Regional and National Response Teams.
7. EPA shall provide staff and/or contractor personnel to perform
technical, logistical, record keeping, public relations duties,
etc., including but not limited to the following: (NOTE - this
list will vary according to site requirements and State
capabilities).
a. Air monitoring, as necessary.
b. Level C protective clothing and equipment for cleanup
personnel (with provision for Level B in reserve).
c. Equipment and personnel decontamination procedures and
facilities.
d. Limited disposable protective clothing and respiratory
protection for use by occasional approved site visitors.
e. Utilities as needed for OSC trailer and cleanup operations.
f. Adequate site security.
g. Perform a survey of the site and take shallow borings (1 to 2
N feet) for the purpose of identifying the contaminated soils to
be removed. Final depth to be determined by the OSC.
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AUG 2 0 1984
-3-
h. Remove contaminated soil (specify amount) and dispose of this
soil in a hazardous waste disposal facility (hereafter referred
to as "disposal facility"), in compliance with disposal
requirements as set forth in (specify disposal regulation).
i. lest the bulk loaded materials for purposes of labeling and
compliance with DOT and OSHA requirements (test for Priority
Pollutants).
j. Transport the bulk waste materials off site and dispose of the
waste materials at an approved hazardous waste disposal facility
that is in compliance with Subtitle C of RCRA and in a manner
that the OSC deems appropriate.
k. Crush, transport, and dispose of empty drums.at an approved
hazardous waste disposal facility that is in compliance with
Subtitle C of RCRA.
1. Transport and dispose of drums containing wastes at a hazardous
waste disposal facility that is in compliance with Subtitle C
of RCRA.
m. Sample and analyze surface and groundwater and sediments in
and off the site for the purpose of determining any contamination
which may be present and the concentrations of the contaminants.
n. Transport and dispose of sediment at an approved hazardous
waste disposal facility that is in compliance with Subtitle C
of RCRA.
o. Treatment of pond water and regrading of excavated soil areas.
8. (Address operation and maintenance responsibilities. Sample wording
follows.) Cleanup actions shall be designed such that no operation
and maintenance will be necessary at the site. (Should O&M be
necessary after completion of the removal action, the EPA/State
responsibilities should be broken out into an O&M section of the
contract).
E. State Responsibilities
1. The State shall pay 10% of the total project cost for this site.
Payment terms are set forth in paragraph I.I.
2. The State may meet its cost share requirement-'in whole or in part
by providing services or equipment if approved by the OSC, including
but not limited to the tasks outlined below. The State will document
on a daily basis all State services and equipment provided for site
work. Documentation will be made on EPA form 1900-55, or an
equivalent form and signed on a daily basis by the State Project
Coordinator or his designee and the OSC.
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-4-
3. The State shall provide a State Project Coordinator, who is
responsible for coordinating all State actions on-scene, as
provided in Paragraphs C.4 and C.5, including coordination with
all appropriate local agencies as necessary.
4. Vhen requested by the CSC, the State shall assure that any treatment
or disposal facility proposed to receive wastes removed from the
site are in compliance with Subtitle C of RCRA and are approved
for disposal of such wastes.
5. Provision of (State) personnel, as requested by the OSC, to assist
the OSC in administrative or technical tasks such as, but not
limited to, die following;
Monitoring cleanup activities, preparing pollution reports
(POLREPS), maintaining daily EPA and contractor worksheets,
maintaining telephone/visitor logs, relaying messages, maintaining
supply inventories, implementing safety plans and assisting OSC
with NIOSH review, developing a photographic and written log of
cleanup activities, and monitoring contractor's sampling and chain
of custody procedures.
6. At the request of the OSC, the State may also provide the following:
(tailor this list to the site and State capabilities)
JL Sampling personnel and 24-hour analytical services.
2. Other, services that may be identified during planning or
implementation of the removal.
3. Air monitoring as required.
4. Construct additional monitoring wells and borings as deemed
necessary.
7. The State shall provide disposable protective clothing for State
personnel working on the site.
8. The State shall provide police services for access and/or traffic
control and/or security as required by the OSC.
9. The State shall provide community relations personnel, as required
by the Community Relations Plan.
10. In addition to the site costs documented in E.2. above, the State
shall compile and maintain documentation of all other site specific
costs which they wish to count toward their cost share. Indirect
costs are allowable if the State has a federally approved indirect
cost rate.
11. For costs of the tasks listed above to be allowable as_State match,
they must be incurred in accordance with 40 CFR 30.
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/\U6 2 0 1984
-5-
12. The State Project Coordinator or his designee shall monitor the
costs incurred by the State. Under no circumstances shall EPA
reimburse the State for any contributions to the project in excess
of their required cost share.
F. Sharing of Information
1. At EPA's request, the State shall in accordance with State law,
make available any information in its possession concerning the
site. If said information was submitted to the State under a claim
of confidentiality, the information will be treated in accordance
with 40 CFR Part 2. EPA will not disclose information submitted
by the State under a claim of confidentiality unless required to
do so by Federal law and having given the State ten (10) days
advance notice of EPA's intent to release the information. Absent
a claim of confidentiality, EPA may make such information available
to the public.
2. EPA shall make available any information and reports developed as
part of its responsibilities under this Contract. Consistent with
State law, the State agrees not to release any information to the
public which EPA has marked confidential and/or which may
potentially affect present or planned enforcement actions unless
approved by both EPA's Region __# Office of Regional Counsel and
the State Project Coordinator.
3. Any information which may potentially affect present or planned
enforcement action shall not be released to the public unless
approved by both EPA and the State Project Coordinator.
G. Emergency Response Action
Any immediate removal activities as defined by the National Contingency
Plan, 47 FR. 31180 (July 16, 1982), shall not be restricted by the terms
of this Contract. The OSC may suspend the response activities covered
by this Contract during immediate removal actions, if such become
necessary.
X
H. Duration
This Contract shall become effective upon execution by both parties, and
shall remain in effect until the project as specified in this Contract
is complete and final payment of costs has been made in accordance with
paragraph I. Section 104(c) of CERCLA requires that removal actions
terminate within six months after initial Federal response action is
initiated or after $1 million of Superfund monies has been obligated for
site removal activities. Exemptions to these limitations may be approved
by EPA.
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AUG 2 0 1984
-6-
I. Financial Responsibilities of the Parties and Payments
1. The current estimate for the total cost of removal under this
Contract is ($ ). If the removal cost exceeds ($ ), this
Contract will be amended, as provided in Paragraph L. The State's
; contribution to the cost shall not exceed 10 percent of the total
removal cost. The State's 10 percent share shall include the value
of services provided by the State as specified in Paragraph E.
Allowable services are those that are preauthorized by the OSC and
occur during the time that this Contract is executed.
2. The State Project Coordinator shall provide to the OSC a tabulation
of the daily costs identified in paragraph E., above, and any other
allowable costs within 30 days of the site closeout date. EPA shall
add this figure to EPA costs to compute the total project cost, and
calculate 10% of the total to represent the State's cost share.
EPA shall provide to the State a statement of project costs, the
amount of the State's cost share, and a request for payment if it
is determined that State allowable costs fall short of the amount
owned for their cost share. The amount, if any, owed by the State
shall be determined by subtracting the allowable value of State
services, described in Paragraph E above, from 10 percent of the
final total project cost.
3. All payments shall be made payable to EPA and sent to:
U.S. Environmental Protection Agency
Accounting Operations
P.O. Box 2971
Washington, D.C. 20013
Attention: Collection Officer for Superfund
Susan Pai (PM-226)
Itoan 3419M
J. Personnel Safety
EPA agrees to approve and oversee the implementation of the site safety
plan which will be developed pursuant to EPA's Interim Standard Operating
Safety Guides (September 1982). The State is responsible for the safety
of its personnel, including provision of protective clothing and equip-
ment. EPA will not assume any liability for any injuries to, or damages
or harm caused by State personnel on the site.
K. Community Relations Plan
EPA and the State will jointly develop and implement the Community
Re]ations Plan.
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ALJG 2 n
APPENDIX PAGE 2 U
National Contingency Plan Requirements for Immediate Removals
Under $300.65 of the NCP:
Immediate Removal action is appropriate when the lead agency
determines that:
the initiation of the removal action will prevent or
mitigate immediate and significant risk of harm to
human life or health or to the environment from such
situations as:
1. Humanr animal/ or food chain exposure to
acutely toxic substances
2. Contamination of drinking water supply
*
3. Fire and/or explosion
4. Similarly acute situations
Immediate removal action may include but are not limited to:
1. Collecting and analyzing samples to de'termine
the source and dispersion of the hazardous
substance
2. Providing alternative water supplies
3. Installing security fencing or other measures
to limit access
4. Controlling the source of the release
5. Measuring and sampling
6. Moving hazardous substances off-site for storage,
destruction/ treatment or disposal
7. Placing physical barriers to deter the spread
of the release
8. Controlling the water discharge from an upstream
impoundment
9. Recommending to the appropriate authorities
the evacuation of threatened individuals
10. Using chemicals and other materials in accordance
with Supart H to restrain the spread of the
substance and mitigate its effects
11. Executing damage control or salvage operations
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* AUG 2
APPENDIX
Authority/Requirements/Enforcement of Administrative Orders
for Removal Actions under CERCLA
*
Under $106(a) of CERCLA:
If, EPA, acting on behalf of the President:
determines that there may be an imminent and substantial
endangerment to the public health or welfare or the
environment, because of
an actual or threatened release of a hazardous substance
from a facility
may, after notice to the affected state,
issue such orders as may be necessary to protect
public health and welfare and the environment.
Under §106(b) of CERCLA:
EPA may take action in the appropriate U.S. district '
court, against any person who willfully violates or
fails or refuses to comply with any Order issued under
S106(a), to enforce such order and
may fine such person not more than $5,000 for each day
such violations occur or such failure to comply continues.
Under S107(c)(3) of CERCLA:
Any person who is liable for a release or threat of release
of a hazardous substance that:
fails without sufficient cause to properly provide
removal action upon order of the President pursuant to
5106
may be liable to the United States for punitive damages in
an amount at least equal to and not more than three times,
the amount of any costs incurred by the Fund as a result
of such failure to take proper action.
Civil action may be commenced against any such person to
recover the punitive damages. These punitive damages shall
be in addition to any costs recovered from such person
pursuant to $112(c).
Any monies received in punitive damages shalL be deposited
in the Fund.
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AUG20I9&
-10-
sanpling or testing, and adequate records of site activity must be
kept. Employees of any contractor used for site activity must
cooperate with and be made available to the U.S. in preparation
and trial of any subsequent enforcement action. Enforcement,
program and legal offices should work together throughout the
case development.
VI. FOLLOW-UP
This guidance represents a substantial departure from prior
practice, and I expect that it will take some time to implement.
For these reasons, I will be reviewing all immediate removals
referred to Headquarters for compliance with this guidance. In
addition, for immediate removals under $250,000, I will ask the
Directors, OWPE and OERR to review the compliance with this guidance
quarterly, and to advise me accordingly.
Appendix
cc: Gene Lucero, OWPE
William Hedeman, OERR
Kirk Sniff, OECN
Dan Berry, OGC
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AUG 201984
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the timing of the obligation will vary according to the estimated
time needed to mobilize equipment and personnel, the OSC should
work closely with the technical enforcement and Regional Counsel
staff during the drafting of the Order to assure that the time
period established for issuing the Order is synchronized with the
time requirements for site response.
If the conference does not result in private party responseor
if changing conditions at the site require accelerated responsethe
Fund-financed immediate removal will take place. If Fund-financed
activity does begin, the Order may be written to require the potential
responsible parties to undertake site activity at the next convenient
break point in activity, if the parties still fail to undertake
the site response activity, enforcement efforts will emphasize cost
recovery with the additional imposition of fines/penalties as
appropriate.
V. COST RECOVERY
The Agency will normally not initiate a civil action in the
event of non-compliance with, an Order but instead will seek to
recover costs and* damages after a Fund-financed response. Therefore,
while enforcement personnel are carrying out the Administrative
Order process, they should also be aware of the requirements for a
successful cost recovery action. They must be able to document
the following factors (some of which are the same ones necessary
for the issuance of the Administrative Order itself).
1. The need for the immediate removal (evidence of an imminent
and substantial endangerment or threat of endangerment
to public health, welfare or the environment)
2. Liability of the responsible parties (evidence to support
the contention that the parties meet the liability standard
of S107)
3. Proof that the Fund-financed response activity was "not
inconsistent" with the requirements of the NCP.
4. Documentation of all eligible costs for site-specific Fund
expenditures.
Enforcement personnel must assure sufficient documentation of
these factors from the period in which the 10-point document is
developed and Funds are obligated through the actual clean up of
the site. These cost recovery requirements must be met regardless
of whether there will be a simple cost recovery action (if no
Administrative Order is issued) or an action for response costs plus
damages (if the Order is not complied with). The Agency must
assure that evidence is preserved for any subsequent enforcement
action. Proper chain of custody procedures must be used for any
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'3 2 0 IS1-..
-8-
If the recipient agrees to undertake the stipulated response
measures/ the agreement may be in the form of a Consent Order. The
O3C will monitor compliance with the Order and recommend additional
enforcement action if the terms of the Consent Order are breached.
If the recipient does not agree to undertake the measures contained
in the Order, the Agency will generally not refer a case to the
Department of Justice to force compliance because of the time
constraints presented by the emergency. Rather, the Fund will be
used for site response and the recipient(s) will be sued for cost
recoveryincluding punitive damages in appropriate cases.
IV. USE OF THE FUND WHILE THE ADMINISTRATIVE ORDER IS BEING ISSUED
Normally, once an Order has been deemed appropriate for an
immediate removal situation/ the CERCLA Fund shall not be used to
undertake a federally-funded immediate removal during the time
period in which the Agency develops the Order/ issues it to the
responsible party/ and conducts the conference.
However/ if site conditions deteriorate presenting a corre-
sponding increase in the threat that the site presents the Fund ca
be used for response while the Administrative Order process continue
In such instances/ the Regional Administrator can approve the use
of Funds below $250K and request the Assistant Administrator/ OSWER,
to release funds if the response work will be greater than $250K.4
The Administrative order process should continue since the parties
may undertake site response at the next convenient break in activity
Thus/ if there are deteriorating conditions at the site/ the
OSC should continue all steps necessary for undertaking a Fund-
financed response while the Order is being developed. The 10-point
document should be prepared and receive the concurrence of all
officials up through the Regional Administrator or the Director/
OERR.
However/ no actual obligation of Funds for site response will
normally occur until after the Order has been issued and the con-
ference has been held* Since the Order will only be issued in
situations where an immediate response can be delayed/ there will
normally be time to see the Administrative Order process through
to conclusion. The conference must be held within the time period
specified in the Order (which will correspond to the time the
Agency has before the response activity needs to begin). Since
'If deteriorating conditions require the Fund to respond while
the Order is still being issued/ OSWER assumes that the Fund will
take all response actions necessary at the site (e.g./ remove*all
barrels, not merely those that may be about to leak).
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AUG 2 0 1984
-7-
Under » separate delegations memorandum to the Regions, the
concurrence requirement will be waived for all Administrative
Orders for immediate removals with obligations of $1,000,000 or
less. Within two weeks of issuance of the Order, the Regions are
to*send a copy of the final Order to OWPE.
As a matter of policy, in order to increase the likelihood of
compliance, the Agency encourages the convening of a conference
with the recipients of an Administrative Order. Since
Administrative Orders will generally be issued for immediate removal
situations which do not require response in less than one week,
the Agency will normally attempt to hold a meeting with the recipient,
if requested by the recipient. The conference should be
convened on an expedited basis (e.g., within 72 hours after the
Order is issued) if the recipient orally requests the conference.
However, the Agency retains the right to "waive" a conference
.f immediate response is warranted because of deteriorating conditions
at the site. The Regional Administrator shall have the authority
to decide whether to eliminate the conference prior to or following
the issuance of the Administrative Order. If the Regional Admin1strat
waives the opportunity for a personal conference, a regional
representative, must at least give the parties an opportunity to
be heard by telephone before the effective date of the Order. In
general, conferences concerning removal actions should be used to
clarify the requirements of the Order rather than as an opportunit
to negotiate the requirements.
The Agency must create a good administrative record of its
meetings with the recipient of an Order for either enforcement of
the Order or cost recovery after a Fund-financed cleanup. The
Agency participants should prepare a written summary of the
conference containing:
1. The date and participants.
2. A summary of the significant issues raised and arguments/
data used by the recipient to contest the Order.
3. The result of the conference (e.g. agreements reached
with the recipient, indication from the recipient of
an unwillingness to comply with the Order)
The presiding official, (designated by the Regional
Administrator) must also prepare a statement which addresses any
significant arguments raised by the recipient and recommends whether
any modifications to the Order are warranted. (See the September
8, 1983 Administrative Order Guidance for a complete discussion of
the procedures and "ground rules" for conducting the conference
and the time frames for holding them.)
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-6-
Since Administrative Orders will normally be issued in situa-
tions in which site response is not required for at least one
week, OSWER policy is to provide recipients when possible an
opportunity to meet with Agency personnel to discuss the terms of
the Order and the means for compliance. Therefore, the Order
should include the following provisions:^
1. A statement of the imminent and substantial danger
pursuant to $106 of CERCLA and the risk of harm under
$300.65 of the NCP.
2. A statement of the authority of the issuing official
(normally the Regional Administrator) to issue the
Order and why the recipient is liable under $107.
3. The steps the recipient must take to comply with the
order, (following the provisions of the
ten-point document in order to be as specific as
possible).
4. A mandatory timetable for performing and completing
the response. (The timetable should include at least
one short term interim deadline so the Agency will have
the ability if necessary, to demonstrate non-compliance
before the project completion date.)
5. A provision informing the recipient that his duty to obt
the terms of the order takes effect 72 hours after he
receives the order.
6. A provision informing the recipient that he may orally
contact the Agency to request a conference on the
Order. The recipient must follow up his oral request
in writing.
7. A provision specifying a date certain by which responses
(either oral or written) to the order must be received.
8. A provision which states that EPA reserves the right
to undertake the action if emergency circumstances
dictate such action and that such action in no way
relieves the parties of responsibility for the costs
of such actions.
9. A provision which requires: proper chain of custody
procedures to be followed for any testing and sampling,
adequate recordkeeping of activities (so records may be
used as evidence in any future enforcement case),
cooperation from employees of any contractor who engages
in site activity, and availability of such employees
to the U.S. in preparation and trial of a subsequent
enforcement case.
JReTer to the general Adir.:nistrative Order Guidance for examples
of model orders and conference procedures.
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AU&2QI984
-5-
The procedures for developing and issuing orders follow:
The decision by the OSC or his superior to request funds for
an immediate removal also triggers the process for deciding whether
to issue an Administrative Order.
The OSC will inform the technical enforcement branch (or other
appropriate enforcement personnel if no separate branch exists)
and the Regional Counsel that a request for a Fund-financed immedi-
ate removal is being developed. Appropriate personnel in OERR and
OWPE should also be informed of this action. While the OSC and his
staff prepare the 10-point document,2 technical enforcement personnel
and the Regional Counsel should begin to identify responsible
parties and assess their financial ability to'conduct site cleanup.
The OSC or the Regional Counsel will attempt to orally contact
(with written follow-up) potentially responsible parties in order
to secure private-party response in lieu of the Fund. While previous
Agency policy was to proceed with Fund-financed response if the
responsible parties refused to act/ the Agency will now issue
administrative orders in appropriate circumstances before initiating
Fund action, so long as the site does not pose an unreasonable
risk of harm to the public health, welfare or the environment.
Regardless of whether a responsible party agrees or not to
undertake the removal, development of the 10-point document should'
proceed as usual. However, the OSC and technical enforcement stai
(in consultation with the Regional Counsel) shall apply the criteria
outlined in Part A (above) to recommend to the Regional Administrator
whether to issue an Administrative Order. The decision to issue
the order rests with the Regional Administrator, subject to the
current delegations.
If the Regional Administrator decides to issue an Administra-
tive Order, the Order will be drafted by technical enforcement
personnel with the advice of the Regional Counsel. The technical
information contained in the 10-point document will normally
provide the basis for the Order's "Findings of Fact" while the
Agency's intended response actions will serve as the remedy the
recipient is required to implement.
^Requests for less than $250,000 can oe approved by the Regional
Administrator while requests for more than $250,000 require the
approval of OERR. (It is anticipated that within the-month, the
Regional Administrators will be delegated the authority to obligate
up to $1 million for removal actions.) The ten point document
itself must justify its cost estimates and be consistent with thej
NCP. With the issuance of the Revised Superfund Removal Guidance^
the 10 point document will become an Action Memorandum.
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A1JG 20 1984
-4-
3. Notification of a release by a federal or state permit
holder when required by the permit.
4. inventory efforts or random/incidental observation by
government agencies or the public.
If the facts reach the legal thresholds of CERCLA 5106,
several policy criteria for deciding whether to issue an order
for an immediate removal should be considered. The first of
these is the amount of time available before site response must
begin. This determination will usually be made by the OSC. An
Order may be appropriate if there is a minimum of one week available
for issuing the Order and meeting with the recipients (see
further below) between the time of the decision to seek funds
for the immediate removal and the initiation of on-site response.
(Of course if an order can be issued in less than a week the
Regions are not bound by the 'one week minimum". However, the
Regions should always attempt to have 48 - 72 hours available
for the recipients to request and conduct a conference.)
A second policy criterion is the number of potential reci-
pients of the Order and their financial viability. There should
be a "manageable* number .of responsible parties and they should
be collectively capable of undertaking site response. The Regions
will use their best judgement to decide what constitutes a
"manageable" number of responsible parties and assess the capability
of the parties to undertake the response for any individual
immediate removal situation. (For a more lengthy discussion of
criteria to consider when issuing an Administrative Order/ please
refer to the Administrative Order guidance.) When there is a
large number of potentially responsible parties/ Orders need not
be issued to all of the parties. In this type of situation the
Region should issue the Orders only to those parties most likely
to comply. The Region/ however/ is not precluded from issuing
Orders to all the parties if it so desires.
These criteria are to be used as general guidelines for deter-
mining whether an Administrative order should be issued for an
immediate removal. The varying factual circumstances presented
in any potential removal action mandate that each Region conduct
this necessary factual analysis to decide the appropriateness of
an Order.
III. PROCESS FOR ISSUING ADMINISTRATIVE ORDERS
The timely development and issuance of Administrative Orders
for immediate removals will require effective coordination among
the OSC/ technical enforcement personnel and the legal counsel
in both the Regions and Headquarters. OSWER will not dictate how
the Regions must organize or adjust personnel in order to
accomplish this task/ but it will expect the Regions to have a
system in place which is capable of implementing an administrative
order program for immediate removals.
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AUG 2 0 /984
-3-
is OSWER policy to meet, if at all possible/ with responsible partie
after the Order is issued if a meeting is requested. The results
of an OWPE analysis of 49 completed immediate removals indicate
that the elapsed time between the request for funds and the start
of site response ranged from eight days to more than three weeks
for 24 of the sites. This clearly indicates that there is time to
issue Administrative Orders in appropriate situations, and the
process described in this memorandum can be implemented in as
little time as a week, if necessary. Second/ removals require
discrete units of work (e.g./ barrel or contaminated soil removal)
which makes responsible party compliance and Agency compliance
monitoring easier. Third/ the costs of immediate removals are
generally moderate; this increases the probability, of private
party compliance.
In the event of non-compliance with an Administrative Order,
the Agency is prepared to quickly initiate a Fund-financed response
and seek fines/treble damages from the responsible parties. Since
the treble damages will be based on the Fund dollars expended/ these
situations are particularly amenable to establishing treble damage
claims/ which the Agency will seek to recover in its $107
cost recovery actions. (The average obligation for 110 prior
immediate removals undertaken by the Agency was approximately
$275/000). Issuance of Administrative Orders for these situation!^
also may improve the equitable position of the Agency in subsequent-
cost recovery cases.
II. CRITERIA FOR ISSUING ADMINISTRATIVE ORDERS
First/ of course/ the Agency must meet the legal threshold
that an imminent and substantial endangerment to public health or the
environment may exist.1 Information which can be used and evaluated
by the OSC or his supervisor to make this determination include:
1. Notification in accordance with CERCLA $103 (a), (b) or (c)
2. Investigations by government authorities conducted
pursuant to CERCLA $104 (e) or other statutory authority.
J-The Agency must be able to properly document and justify both its
assertion that an immediate and significant risk of harm to human
life or health or to the environment exists and its choice of the
ultimate response action at a site in order to be able to oppose a
challenge to the Order and to successfully litigate any subsequent
cost recovery action. Adequate documentation consists.of photographs,
samples, monitoring or other documented site analysis. The Agency
should follow chain of custody procedures to maintain the integrity^
of samples taken at the site. Please refer to the Cost Recovery
Guidance, issued August 26 / 1983 for more detailed guidance. T.he
Revised Superfund Removal Guidance to be issued in late February
1984 will also provide additional guidance on immediate removal
assessments.
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-2-
Hazardous Material Divisions). Personnel responsible for immediate
and planned removals have usually been assigned to the Environmental
Services Division which, as a general rule, has not been assigned
enforcement personnel.
Obviously, the ability of a Region to implement this new
policy requires both close coordination among the immediate
response staff and their colleagues in the technical enforcement
and regional counsel offices and an organizational structure
capable of developing and issuing quality orders. Regions that
do not currently dedicate technical enforcement staff to their
immediate removal program should assure that appropriate personnel
are in place in the technical enforcement office to implement this
policy and to handle the workload.
I. BACKGROUND
CERCLA identifies two types of response actions for which the
Fund can be used: removal actions and remedial actions. The
National Contingency Plan (NCP) further refines the former category
into "immediate" and "planned" removals and describes the process
and procedures for proceeding with these forms of response. (See
Federal Register 31180; July 16, 1982). Please refer to the attache
appendix for an outline of the relevant CERCLA and NCP provisions
regarding removal activity, Administrative Orders and enforcement.
Because of the large number of sites which pose a health hazard
the Office of Emergency and Remedial Response (OERR) defines the
category of immediate removals according to the immediacy and
severity of the hazard to the public health or environment. These
categories establish a guide for the purpose of assessing the
length of time within which the Agency must respond to the event.
Agency response to situations which require immediate response
(e.g., threats of fire, explosion or spills) normally takes place
in a matter of hours or one or two days at the most; Agency response
to other situations (e.g., rusting barrels that have not yet
begun to leak, holding ponds that may overflow with the advent of
the rainy season) normally takes place during a period which may
range from a week to a month.
This guidance is most applicable to the latter situation; i.e.,
the Regions should consider issuing Administrative Orders in situatic
when there is at least one week between the time the On-Scene
Coordinator (OSC) determines that an immediate removal is warranted
and the time that actual on-site response must begin.
Administrative Orders are a useful enforcement tool in these
types of immediate removals situations, for the following reasons.
First, they encourage private party response, particularly since it
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ,
WASHINGTON. O.C. 20460
FEB 2 I 1984
OFFICE OP
SOLID WASTE ANO EMERGENCY
MEMORANDUM
SUBJECT: Issuance of Administrative Orders for Immediate Removal
'Actions
FROM: ^ALee M. Thdmas
Assistant Administrator
TO: Regional Administrators/ Regions I-X
Air & Waste Management Division Directors
Regions ill, IV, VI, VII, VIII, X
Waste Management Division Directors, Regions I, V
Director, Office of Emergency and Remedial Response, Region
Toxics and Waste Management Division Director, Region IX
Environmental Services Division Directors, Regions I-X
Regional Counsel, Regions I-X
This memorandum sets forth guidance on issuing Administrative
Orders for immediate removal actions under CERCLA. This guidance
should be used in conjunction with the recently issued Guidance
Memorandum on Use and Issuance of Administrative Orders under
Section 106(a) of CERCLA dated September 8, 1983.
Since becoming the Assistant Administrator, OSWER, I have
sought to implement a "balanced" CERCLA program which uses both
the administrative and civil judicial enforcement provisions of
the Actas well as the Fundto secure clean up of hazardous
waste sites. One of my primary enforcement goals is to increase
the use of Administrative Orders for immediate removals. Orders
are particularly useful in immediate removal situations, since
they can be. issued quickly, can require discrete segments of work
(e.g., surface cleanup) and carry the threat of additional damages
and penalties in the event of non-compliance.
We estimate that Administrative Orders may be appropriate for
a significant percentage of immediate removal situations. Increased
resources will be provided to the Regions, and I expect the Regions
to devote resources to accomplishing this goal of increased
Administrative Orders for removals.
In addition, the Regions must develop a satisfactory
organizational structure if the Administrative Order program is to
succeed. The organization of enforcement personnel varies among
the Regions. The majority of the Regions keep their "remedial"
and "removal" personnel in different divisions. Since CERCLA
enforcement has (until now) concentrated heavily on remedial
sites, most regional technical enforcement personnel have been
assigned to the remedial response units (generally, the Air and
Appendix 11
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AU3.20J9S4
REMOVAL ACTION ACCIDENT REPORT
1. Date and Time of Incident: Date of Report:
2. Site Name and Location: Prepared By:
3. OSC: Preparer's Phone #:
4.. Description of Incident:
5. Factors Leading Up to Incident:
6. Site Work Related to Incident (OSC Orders, TAT/Strike Team Oversight, foreman1
Orders):
7. Weather Conditions During Incident (Temperature, Humidity, Wind Direction and
Speed, Precipitation):
Injuries (Person, Role of Person On-Site, Description of Injury):
8b. Exposure (Person Exposed, Substances Involved, Type of Exposure - Inhalation,
Ingestion, Dermal):
8c. Medical Treatment (Paramedic, Physician, Hospital, Length of Stay, Estimated
Cost):
9. Property Damage (Owner, Location, Description of Damages, Estimated Cost):
lOa. Other Persons On-Site: lOb. Other Person's Roles/Activities
On-Site on Day of Incident:
Appendix 10
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AUG 20 I9&
-4-
FECCMMENDATIONS
Because conditions of the site meet the CERCLA 104(c) criteria, I
nd that you approve an exemption from the $1,000,000 limit to allow
continued removal activities at the Now Chemical Site in Town, state. In
addition, I recommend an increase in the ceiling to $1,260,000.
Approve: Date;
Disapprove: Date:
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2 0 J9£
-3-
the Little River. Surface runoff will also percolate through the soil to
the ground water table which is four (4) feet below the ground surface at
the site. This ground water table is hydrologically connected to the Little
aquifer. The Safe Drinking Water Act has listed 0.1 ppn of 2,4-D as the
maximum standard. Existing ground water standards for New York State list
the following maximum concentrations:
2,4-D 4.4 ppn
Atrazine 7.5 ppm
Banvel 0.44 ppm
This aquifer is used extensively for agriculture, livestock water, and public
water supplies in southeast State.
The following acute and chronic toxicological data applies to materials
in contaminated soil:
Acute: Phorate LD50 2-4 mg,kg
Lorsban LD60 145 ing/kg
2,4-D LD50 500 mg/kg
Lasso LD50 1800 mg/kg
Banvel LD50 1707 mgAg
Atrazine LD50 1780 mg/kg
*
Chronic: 2,4-D - tumorigen, mutagen, teratogen and suspected carcinogen
Lorsban - suspected teratogen
Banvel - suspected teratogen and mutagen
The concentrations of some of these substances (Phorate, Lorsban, 2,4-D
and Lasso) in the contaminated soil at the site exceed these acute toxicity
levels. Other pesticides contaminating the soil contribute to the overall
hazardous conditions.
3) Assistance will not otherwise be provided on a timely basis.
Enforcement action against owner/operator has not been taken at this time due
to the time constraints of the emergency situation. The owner/operator has
stated that he does not have sufficient funds for this removal action. There
are no funds available from State or local governments. This site is not
ranked on the National Priorities List. It is anticipated that on-site
removal activities will be completed in July 1984.
REQUEST FOR CEILING INCREASE
The cost to complete this project is estimated to be $460,000. I hereby
request an increase in the ceiling to $1,260,000.
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2QI98
-2-
1. Perfonn sampling and analysis of soil, water and debris to
determine extent of contamination.
2. Demolish the burned structure; rinse and transport the structural
i debris to disposal site.
3. Rinse, remove and transport other site debris to disposal site.
4. Removal and transport of all recyclable materials.
5. Remove contaminated soil (approximately 3500 cubic yards) and
contaminated water (approximately 44/000 gallons) and transport to
disposal site.
6. Adherance to all established health and safety procedures.
At this time, approximately 1400 cu. yds. of stockpiled contaminated
soil and 5,500 gallons of runoff water are on site requiring disposal. The
disposal is expected to take up to four weeks to complete at a total cost of
$460,000. this additional cost will raise the total cost for the immediate
removal action to $1,260,000 which exceeds the statutory limit of $1,000,000.
The levels of contamination in the soil are shown in the following list:
Chemical ppm Chemical ppm
Lasso 76000 Banvel 500
2,4-D 630 Treflan 3000
Phorate 2525 Dyphonate 4
lorsban 277 Atrazine 1110
The manner in which the Now Chemical site meets the prescribed criteria
for $1,000,000 exemption are as follows:
1) Continued response actions are immediately required to mitigate an
emergency" Approximately 1400 cu.yds. of soil contaminated with hazardous"
substances is presently stockpiled on site surrounded by a temporary two
feet high clay dike. Removal and disposal of this soil is required to
prevent contamination of surface and ground waters which are used for public
and private water supplies. The immediate removal action is not complete
until the conditions which led to the initiation of action are eliminated or
abated (300.65(c) of the NCP).
2) There is an immediate risk to public health and the environment.
The site constitutes a health hazard because of the presence of hazardous
substances and the ease of access to the site by the general public. An
access road to businesses, stables and residences near the site is adjacent
to the site. The stockpile of contaminated soil (1201 x 30' x 12') is
located next to the access road. Surface runoff from the soil resulting
from a heavy rainstorm would enter Two Mile Creek which is a tributary of
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AUG 2 Q 1984
WASHINGTON. D.C. 20460
SAMPLE
OFFICE OF
SOLID WASTE ANO EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Continuation of Removal Activities:
Now Chemical Site ACTION MEMORANDUM
FROM: Regional Administrator
Region XI
TO: Lee M. Thomas
Assistant Administrator for Solid Waste and Emergency Response
THRU: William N. Bedeman, Jr. , Director
Office of Emergency and Remedial Response
ATTN: John J. Stanton, Director
Emergency Response Division (WH-548-B)
ISSUE
Continued immediate response actions are estimated to exceed the
$1,000,000 statutory limit and further cleanup cannot be undertaken unless
an exemption to Section 104(c) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA) is granted and an increase
in the ceiling is approved. It is estimated that an additional $460,000
will be required to complete the removal action.
STATUTORY CRITERIA
Section 104(c) of CERCLA limits Federal emergency response to $1,000,000
unless three criteria are met: (1) continued response actions are immediately
required to mitigate an emergency; (2) there is an immediate risk to public
health and the environment and (3) such assistance will not otherwise be
provided on a timely basis.
DISCUSSION
The Environmental Protection Agency (EPA) initiated emergency action
on April 9, 1984, to remove hazardous substances resulting from a fire at
Now Chemical Co. in Town, State, which was approved in an immediate removal
action memorandum dated April 9, 1984. Approximately $780,000.00 has been
expended from an authorized ceiling of $800,000.00 to cover the following:
Appendix 9
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-3-
distributod by wind or traffic, particles can remain airborne for prolonged
periods and easily inhaled. Exposure to airborne asbestos particles, even
for short periods of time and at low levels, has been shown to pose a
significant health risk due to the possible contraction of mesothelicma.
In addition, continued short-term exposure has been shown to result in a
significant increase in health risk posed by longer-term, chronic diseases
(lung cancer, asbestosis, and gastrointestinal tract tumors).
3. Assistance will not otherwise be provided on a timely basis.
Enforcement action against owners, operators and the generator has been
unsuccessful. The company has declared bankruptcy. Regional Counsel
indicated it is doubtful that enforcement action will result in revenues for
this removal action. These sites are not ranked on the National Priorities
List. The State of State does not have the funds to accomplish this work.
It is anticipated that on-site removal activities will be completed in July,
1984.
Recommendation
Because conditions at the site meet the CERCLA 104(c) criteria, I
recommend that you approve an exemption from the six month limit to allow
continued removal activities at the Town and City, State asbestos sites.
Approval for this action is granted only under the condition that future
maintenance costs consisting of erosion control and reseeding, are assumed
by the State of State or local government.
Approve: Date:
Disapprove: Date:
NOTE: Headquarters General Counsel has made the following recommendation
for enhancing the Agency's ability to support statutory exemptions.
Exemption requests should highlight how continued exposure at the
predicted levels, over the immediate term, will cause or contribute
to potential injury to human health and welfare, whether or not the
injury will be immediately apparent.
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AUG 2 0 1984
-2-
1. A site, located 100-yards to the North of Route 4 in Town;
2. B site, a vacant lot ijnmediately west of the A site;
. 3. C site, located west of the B site along Route 4;
4. D site, located 1-1/2 miles northeast of the A site;
5. E site, located in residential City at the end of Brown St. ;
6. F site, located in a populated area of Town at X and Y Roads; and
7. G site, located in a residential area in Town on Z Road.
It is apparent that seeding of sane portions of these sites did not
take root sufficiently before the onset of winter weather. Additionally,
sane erosion has occurred during the winter re-exposing portions of the
asbestos. Proposed immediate removal actions now include repairing eroded
areas and reseeding to ensure stability of the soil covers. These actions
are expected to take 20-days to complete at a total cost of $50,000 which
is available from the unobligated balance of the original removal action.
The manner in which these Hudson and Nashua asbestos sites meet the
prescribed criteria for a six-month time extension are as follows:
1. Continued response actions are immediately required to mitigate an
emergency. The Centers for Disease Control (CDC) advisory, issued on June 13,
1983, stated that these sites require attention to prevent inhalation exposure
to the public. The memorandum to the record supporting the health advisory
specifically states that access to each of the sites by the public should be
prevented immediately. This decision is justified by the fact that removal of
these exposures to a known carcinogen will result in a substantially decreased
risk of disease. The alternative of no action would require costly long-term
monitoring of environmental exposures, assurance that certain human activities.
would not occur on these properties, and the acceptance of elevated risks for
asbestos-associated diseases. It is essential to ensure compliance with the
advisory and to repair those portions requiring replacement and reseeding,
thereby eliminating the potential spread of asbestos. The approved immediate
removal action is not complete until these conditions which initially led to
the initiation of action are eliminated or abated (300.65 (c) of the NCP).
2. There is an jjitnediate risk to public health and the environment.
A CDC health advisory, dated June 13, 1983, stated that each site constituted
a health hazard because of the presence of friable asbestos and the ease of
access to each site by the general public. Supporting documentation states
that access to each site should be prevented immediately. Hundreds of people
reside near these sites, their children play in these areas, and thousands
more travel along Route 4 which is bordered by four of these sites. The
asbestos is found in larg- quantities on the surface of the eroded areas, and
includes dust and friable materials easily converted to dust. Vtften dry and
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ^yg 2Q 1084
WASHINGTON, O.C. 20460
SAMPLE
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Six-Month Time Exemption to Allow the Continuation of
Removal Activities at the Wiite Asbestos Sites, Town, City,
State ACTION MEMORANDUM
ERCM: OSC
TO: Regional Administrator
Issue
Continued response actions of a duration greater than six months cannot
be undertaken unless an exemption to Section 104(c) of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) is
granted. The initial response action of the White asbestos sites in Town,
and City, State, took place in June 1983. The six-month time limit expired
in December 1983.
Statutory Criteria
Section 104(c) of CERCLA limits Federal emergency response to six months
in duration unless three criteria are met: (1) continued response actions
are immediately required to mitigate an emergency; (2) there is an immediate
risk to public health and the environment; and (3) such assistance will not
otherwise be provided on a timely basis.
Discussion
The Environmental Protection Agency (EPA) initiated emergency action on
June 28, 1983, to stabilize six asbestos sites which were approved in an
immediate removal action memorandum dated June 20, 1983. An additional site
was subsequently added to the list after an investigation was conducted.
On October 13, 1983, a $1 million exemption request was approved in order to
continue response actions at the site. Approximately $900,000 was expended
from the authorized $1,120,000, to cover the following:
- Appendix 8
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AUG 2 0 1984
-8-
4. Judicial Action
EPA and the State agree that judicial action taken under CERCLA by
either party against a potentially responsible party for recovery
' of any sums expended in response actions at the site under this
Contract shall be filed in the United States District Court for the
judicial district in which the site is located, or in such other
judicial district of the united States District Courts as may be
authorized by section 113 of CSRCLA, and agreed to in writing by
EPA and the State.
M. Third Parties
This Contract is intended to benefit only the State and EPA. It extends
no benefit or right to any third party not a signatory to this Contract.
N. Amendments
Any change in this Contract must be agreed to, in writing, by both
parties.
0. Failure to Comply with Terms of Contract
1. If the State fails to comply with the terms of this Contract, EPA
shall give the State sixty (60) days written notice before
proceeding under the provisions of section 104(d)(2) of CERCLA.
2. If EPA breaches the terms of this Contract, no action for damages
or any form of remedy shall be commenced until the State shall have
given EPA sixty (60) days written notice of intent to file suit.
In witness whereof, the parties hereto have executed this Contract in three
(3) copies, each of which shall be deemed original.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Regional Administrator Date
STATE OFFICE (IN CAPS)
AUTHORIZED STATE SIGNATURE AND TI1LE Date
NOTE: If the*planned removal action was approved by the AA/OSWER (costs
greater than $1 million) the AA will also sign the SSC.
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AUG 20 1984
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L. Enforcement and Cost Recovery
1. Disclaimer of Agency Relationship
i The execution of the Contract does not create an agency relationship
between EPA and the State. Any standards, procedures, or protocols
presented in this Contract to be followed by EPA or its contractors
during, the performance of its obligations under this Contract are
for .assurance of the quality of the final product of the actions
comtemplated by the Contract, and do not constitute a right to
control the actions of the EPA. EPA (including its employees and
contractors) is not authorized to represent or act on behalf of the
State in any matter relating to the subject matter of this Contract
and the State is not authorized to represent or act on behalf of the
EPA in any matter relating to the subject matter of this Contract.
2. Notice of Intent to Settle or Initiate Proceedings
EPA and the State agree that, with respect to the claims which each
may be entitled to assert against any third person (herein referred
to as the "responsible party," whether one or more) for reimbursement
of any services, materials, monies or other thing of value expended
by EPA or the State for response activity at the site, neither EPA
nor the State will enter into a settlement witlvor initiate a.
judicial or administrative proceeding against a responsible party
for the recovery of such sums except after having given notice in
writing to the other party to this Contract not less than thirty
(30) days in advance of the date of the proposed settlement or
commencement of the proposed judicial or administrative proceedings.
Neither party to this Contract shall attempt to negotiate for nor
collect reimbursement of any response costs on behalf of the other
party, and authority to do so is hereby expressly negated and denied.
3. Cooperation and Coordination of Cost Recovery Efforts
i^ * »
EPA and the State agree to cooperate and coordinate in efforts to
recover their respective costs of response actions taken at the
site described herein, including the negotiation of settlement and
the filing and management of any judicial actions against potentially
responsible parties. This shall include coordination in the use of
evidence and witnesses available to each in the preparation and
presentation of any cost recovery action, excepting any documents
or information which may be confidential under the provision of any
applicable State and Federal law or regulation.
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