United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication: 9360.0-32FS
EPA/540/F-94/009
PB93-963422
December 1993
&EPA
Conducting Non-Time-Critical
Removal Actions Under
CERCLA
Office of Emergency and Remedial Response
Hazardous Site Control Division, 5202 G
Quick Reference Fact Sheet
This fact sheet summarizes a document entitled "Guidance on Conducting Non-Time-Critical Removal Actions Under
CERCLA" (OSWER Directive 9360.0-32). The guidance describes the essential components of the non-time-critical removal
action process with particular emphasis placed on conducting the Engineering Evaluation/Cost Analysis (EE/CA). This
document also provides general guidance on other activities carried out during a non-time-critical removal action, such as
enforcement, public involvement, and Action Memorandum preparation. The guidance is to be used in conjunction with EPA's
Emergency Response Division (ERD) Superfund Removal Procedures (SRP) manual which provides detailed guidance for
carrying out various activities at all types of removal sites.
INTRODUCTION
Non-time-critical removal actions are conducted at
Superfund sites when the lead Agency determines, based
on the site evaluation, that a removal action is appropriate,
and a planning period of at least six months is available
before on-site activities must begin. Because non-time-
critical removal actions can address priority risks, they
provide an important method of moving sites more quickly
through the Superfund process. Thus, conducting non-
time-critical removal actions advances the goals of the
Superfund Accelerated Cleanup Model (SACM) to include
substantial, prioritized risk reduction in shorter time frames
and to communicate program accomplishments to the
public more effectively.
RESPONSIBILITIES AND RESOURCES
Most non-time-critical removal actions are led by EPA,
unless the State, potentially responsible party (PRP),
Federal agency, political subdivision, or Indian Tribe has
the financial and technical ability to lead the response.
Regardless of who takes the lead, the EPA On-Scene
Coordinator (OSC) or Remedial Project Manager (RPM)
is responsible for arranging for technical assistance from
other agencies, if the OSC/RPM determines such
assistance is needed. For non-time-critical removal actions,
the OSC/RPM directs or reviews the work of other
agencies, PRPs, and contractors to ensure compliance with
CERCLA and the National Oil and Hazardous Substances
Pollution Contingency Plan (NCP). The OSC/RPM also
reviews all decision documents, enforcement orders, and
work plans; oversees all expenditures of EPA funds; and
ensures all staff working on the site know operating and
safety procedures.
EPA should not conduct Fund-financed removal actions
when the response is within the independent financial and
technical capabilities of a State, PRP, Federal agency,
political subdivision, or Indian Tribe. To lead a non-time-
critical removal action, a State, political subdivision, or
Indian Tribe must fast apply for a removal Cooperative
Agreement (CA) pursuant to 40 CFR Subpart O, section
35.6200. When EPA retains the lead for non-time-critical
removal actions without financial participation from a State,
political subdivision, or Indian Tribe, the Regional Decision
Team (RDT) should assess the urgency of the situation
and determine whether the removal action should proceed
without such participation.
The RDT ensures effective coordination, communication,
and integration of Superfund program authority, expertise,
resources, and tools. Although RDT involvement in
removal assessments and decision-making may vary from
Region to Region, for non-time-critical removal actions the
RDT should help assess the opportunity for response and
help initiate the preparation of the EE/CA Approval
Memorandum, the EE/CA, and the Action Memorandum.
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Because at least a 6-month planning period is available for
non-time-critical removal actions, there is time to obtain
commitment from a State or local government or PRP to
perform and fund necessary post-removal site control
(PRSC) activities prior to initiating the response. If the
OSC/RPM is unable to secure such an agreement, removal
options that involve continuing PRSC should be avoided
where other options are feasible.
Technical assistance resources available to the lead
Agency in carrying out a non-time-critical removal action
include: national, Regional, and specialized response teams;
contractors; other Federal agencies; and State and local
governments. The Long-Term Contracting Strategy
(OSWER Publication 9242.6-07) provides a road map to
Superfund contract support and gives Regions full
responsibility for contracts management.
ENFORCEMENT ACTIVITIES
A PRP search should begin as soon as a removal action
appears likely. If enforcement will be pursued for a non-
time-critical removal site, a CERCLA section 122(e)
special notice letter should be used to solicit a written good
faith offer from the PRP, which demonstrates the PRP's
qualifications and willingness to conduct or finance the
removal action. Issuance of a special notice triggers a 60-
to 120-day moratorium on EPA conducting the removal
action (although additional studies or investigations
authorized under CERCLA section 104(b), including the
EE/CA, may be initiated).
During the moratorium, the OSC/RPM should consult with
Regional staff in developing an Administrative Order on
Consent (AOC), which is a legally enforceable agreement
signed by EPA and the PRP whereby the PRP agrees to
perform or pay the cost of site cleanup, and may forfeit the
right to make a claim against the Fund. An AOC outlines
the activities the PRP must undertake and the completion
dates for those activities. The State should always be
notified prior to negotiating or issuing an AOC.
If the OSC/RPM wishes to pursue informal negotiations
without using a CERCLA section 122(e) special notice
letter, CERCLA section 122(a) requires EPA to issue a
notice letter to the PRP explaining why special notice
procedures will not be used. In cases where no negotiation
is desirable, the OSC/RPM can use the notice letter supply
to inform the PRP of their potential liability and provide
notice that the Agency has taken or plans to take a
response action.
The statute of limitations for cost recovery for removal
actions is 3 years from the completion of the removal
action, unless a consistency exemption to the statutory
limits under CERCLA section 104(c)(l)(C) has been
approved (in which case the statute of limitations is 6 years
from the date of the last exemption). A decision not to
pursue cost recovery must be documented in a Removal
Action Cost Recovery Close-Out Memorandum prepared
in consultation with the Office of Regional Counsel.
PUBLIC INVOLVEMENT
Sections 300.415(m) and 300.820 of the NCP specify
community relations and administrative record activities as
two forms of public participation necessary for all removal
actions. The OSC/RPM is responsible for ensuring that
these requirements are met.
Community relations requirements during removal actions
are intended to promote active communication between
communities affected by a release or a threat of release
(including the PRP) and the lead agency. The following
community relations activities are required for
non-time-critical removal actions:
• Designate a community relations spokesperson
• Establish the information repository
• Conduct community interviews
• Prepare Community Relations Plan (CRP)
• Issue public notice of availability of the EE/CA.
The administrative record file, a subset of the site file, is
the body of documents used by the Agency during a
removal action to select a response. It includes site specific
data and documents that reflect the views of the public,
including PRPs, concerning this selection. For
non-time-critical removal actions, the EE/CA Approval
Memorandum and EE/CA are the critical components of
the administrative record file. The required administrative
record requirements for non-time-critical removal actions
are as follows:
• Establish the administrative record file
• Publish public notice of the availability of the
administrative record file
• Hold a public comment period
• Develop written responses to significant public
comments
• Complete the administrative record file after
selecting the response.
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CONDUCTING THE EE/CA
Section 300.415(b)(4)(i) of the NCP requires an EE/CA
for all non-time-critical removal actions. It is intended to:
(1) satisfy environmental review requirements for removal
actions; (2) satisfy administrative record requirements for
unproved documentation of removal action selection; and
(3) provide a framework for evaluating and selecting
alternative technologies. In doing so, the EE/CA identifies
the objectives of the removal action and analyzes the
effectiveness, implementability, and cost of various
alternatives that may satisfy these objectives. Thus, an
EE/CA serves an analogous function to, but is more
streamlined than, the remedial investigation/feasibility study
(RI/FS) conducted for remedial actions. The results of the
EE/CA and EPA's response decision are summarized in
the Action Memorandum.
The EE/CA Approval Memorandum, which is prepared
once the need for a non-time-critical removal action has
been determined, serves three important functions. First, it
secures management and funding approval to conduct the
EE/CA. If the action is PRP-lead, provision for oversight
funding will be contained in an Administrative Order and
should be included in the EE/CA Approval Memorandum.
Second, it documents that the situation meets the NCP
criteria for initiating a non-time-critical removal action.
Third, it provides a finding of an actual or threatened
release from the site and, if present, a finding of an
imminent and substantial endangerment, or refers to a
document establishing such a determination. The EE/CA
Approval Memorandum also provides general information
pertaining to the site background; threats to public health,
welfare, or the environment posed by the site (including
expected changes in the site situation if no action is taken
or if the action is delayed); enforcement activities related
to the site; and estimated EE/CA costs.
The Regional Administrator (or authorized designee)
evaluates the EE/CA Approval Memorandum and provides
authorization. Funds expended in preparing the EE/CA
Approval Memorandum are considered CERCLA section
104(b)(l) monies and are not counted toward the $2 million
statutory limit for removal actions. The EE/CA Approval
Memorandum contains the following sections:
• Subject
• Background
• Threat to public health, welfare, or the
environment (including expected change if no
action is taken or if action is delayed)
• Imminent and substantial endangerment, if present
• Enforcement actions
• Proposed project/over sight and cost
• Approval/disapproval.
Once the EE/CA Approval Memorandum is authorized,
preparation of the EE/CA can begin. The EE/CA includes
the following sections:
• Executive summary
• Site characterization
S Site description and background
S Previous removal actions
S Source, nature, and extent of contamination
S Analytical data
S Streamlined risk evaluation
• Identification of removal action objectives
S Statutory limits on removal actions
S Determination of removal scope
S Determination of removal schedule
S Planned remedial activities
• Identification and analysis of removal action
alternatives
S Effectiveness
S Implementability
S Cost
• Comparative analysis of removal action
alternatives
• Recommended removal action alternative.
The EE/CA executive summary provides a general
overview of the contents of the EE/CA. The executive
summary is intended to make the EE/CA simpler for the
public to review. It can be used in the Action
Memorandum to describe the EE/CA.
The site characterization section should summarize
available data on the physical, demographic, and other
characteristics of the site and surrounding areas to provide
background engineering information for analyzing removal
alternatives. Data on the site may be available from a
removal site evaluation or from other EPA documents
regarding the site. Source documents should be placed in
the administrative record for the site. EPA should
coordinate activities of the OSC/RPM with those of the
site assessment manager, risk assessor, and
enforcement/legal staff to ensure appropriate data are
collected to characterize the site.
Identifying the removal action scope, goals, and objectives
involves considering the $2 million and 12-month statutory
limits for Fund-financed removal actions. If there is a need
for an exemption from these limits, the details should be
described in the EE/CA as well as in the Action
Memorandum requesting the exemption. This
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section should also identify specific objectives that clearly
define the scope of the removal action (e.g., total site
cleanup, site stabilization, or surface cleanup of hazardous
substances). EE/CAs for removal actions at non-NPL sites
should consider the potential for future NPL listing to
ensure the goals of the removal action are consistent with
any potential long-term remediation. When a
non-time-critical removal action will be the only or last
action taken to clean up a potential NPL site, the EE/CA
should provide adequate documentation that activities
performed at the site are sufficient to meet completion
requirements. In addition, this section should provide a
general schedule of removal activities, including both the
start and completion time for the non- time -critical
removal action. This schedule can be an important factor
in evaluating removal action alternatives based on their
implementation times.
Once the removal action scope, goals, and objectives have
been identified, a few relevant and viable removal
alternatives should be chosen for evaluation and
comparison. Removal alternatives should be analyzed for
their effectiveness, implementability, and cost.
Effectiveness can be evaluated in terms of protectiveness
and ability to achieve removal objectives. The
protectiveness of the alternatives can be assessed in terms
of how well they protect public health and the community,
protect workers during implementation, protect the
environment, and comply
with applicable or relevant and appropriate requirements
(ARARs). The implementability of the alternatives
depends on their technical feasibility, the availability of
necessary resources to support the alternatives, and their
administrative feasibility. The cost of the alternatives is
determined by looking at capital costs, costs for PRSC, and
present worth cost.
Once the alternatives have been described and individually
assessed against the criteria, a comparative analysis should
be conducted to evaluate the relative performance of each
alternative in relation to each of the criteria. This process
should identify key trade-offs that would affect the remedy
selection. Based on this analysis, the EE/CA should
determine the recommended action and describe the
reasons for the recommendation. This determination can
be summarized in fact sheet form and placed in the
administrative record file.
NOTICE: The policies set out in this fact sheet are not final
agency action, but are intended solely as guidance. They are
not intended, nor can they be relied upon, to create any rights
enforceable by any party in litigation with the United States.
EPA officials may decide to follow the guidance provided in
this fact sheet, or to act at variance with the guidance, based
on an analysis of site-specific circumstances. The Agency
also reserves the right to change this guidance at any time
without public notice.
United States
Environmental Protection
Agency (5202 G)
Washington, DC 20460
Official Business
Penalty for Private Use
$300
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