United Slates Office of Emergency and Publication 9200.2-14
Environmental Protection Remedial Response PB92-963261
Agency Washington, DC 20460 January 1992
Superfund ~
&EPA National Oil and Hazardous
Substances Pollution
Contingency Plan
(The NCP)
-------
Publication 9200.2-14
January 1992
National Oil and Hazardous Substances
Pollution Contingency Plan
(The NCP)
With the Preambles of 1988 and 1990
and the New Index of Key Terms
Office of Emergency and Remedial Response
U.S. Environmental Protection Agency
Washington, DC 20460
-------
Notice
This document has been reviewed in accordance with U.S.
Environmental Protection Agency policy and approved for publication.
Mention of trade names or commercial products does not constitute
endorsement or recommendation for use. This publication may be
obtained from the National Technical Information Service (NTIS),
Springfield, VA 22161 (703) 487-4650.
-------
A Note to the Reader
This NCP document is divided into five parts as follows:
Part I: Tables of Contents
Part I of this document is a series of three Tables of Contents for the NCP proposed rule preamble
(SectionA), the NCP final rule preamble (Section B), and the NCP final rule (Section C), respectively.
The tables provide specific Federal Register page references to the subpart and section discussions that
are included in the three sources.
Part n: National Oil and Hazardous Substances Pollution Contingency Plan: Proposed Rule
Preamble
Part II contains a reproduction of the preamble to the National Oil and Hazardous Substances
Pollution Contingency Plan: Proposed Rule published in 53 EB 51394 on December 21,1988. Unless
directly contradicted or superseded by the final rule and preamble, the preamble to the proposed rule
reflects EPA's intent in promulgating the final rule.
Part ffl: National Oil and Hazardous Substances Pollution Contingency Plan: Final
Rule Preamble
Part IV: National Oil and Hazardous Substances Pollution Contingency Plan: Final
Rule
Parts III and IV of this document contain the preamble to the final rule and the final rule itself,
published in 55 £& 8664 on March 8,1990. The preamble to the final rule consists primarily of responses
to comments received on the 1988 proposed revisions. As noted in the final rule preamble, the preambles
to both the proposed and final rules should be consulted when issues arise on the meaning or intent of the
final rule.
Part V: Key Terms Index
The Key Terms Index was developed based on experience and knowledge gained over the past
several years through the NCP revision project and seeks to be as comprehensive as possible. The
primary references included are the NCP final rule and the preamble to the final rule, as well as selected
references to the preamble to the proposed NCP. These latter references are more general and highlight
only certain sections of the preamble to the proposed rule and are not intended to be as comprehensive as
those for the final rule and preamble.
The references contained in the Key Terms Index appear in three different ways, in the following
order, depending on the source referenced:
• References to the preamble of the final NCP appear in regular, non-bold type. For
example, pages 8769-8770 always appear hi regular type.
References to the final NCP appear in bold type. For example, pages 8830-8831 always
appear in bold.
• References to the preamble of the proposed NCP appear with full Federal Register
references. For example, 53 FR 51459 refers to the preamble to the proposed NCP.
-------
The index makes extensive use of subheadings wherever appropriate in order to provide as
precise and detailed references as possible. It also makes free use of cross-references, which permit the
user to search for a reference under several relevant main entries. In all cases, subheadings appear in
italics to assist the reader when searching for a cross-referenced term. If the cross reference includes
italics, it refers to a subheading under another main entry.
Please direct any comments or suggestions regarding this document to Rhea Cohen, Office of
Emergency and Remedial Response, Office of Program Management, Policy and Analysis Staff (OS-
240), 401M Street SW, Washington, DC 20460 (telephone (202) 260-2200 or FTS 260-2200).
-------
Parti:
Tables of Contents
-------
A. NATIONAL CONTINGENCY PLAN PROPOSED RULE PREAMBLE
SUBPART/SECTION FR CITATION*
Subpart A -• Introduction 51397
Subpart B — Responsibility and Organization for Response 51400
Subpart C - Planning and Preparedness 51403
Subpart P — Operational Response Phases for Oil Removal 51403
Subpart E - Hazardous Substance Response 51403
Section 300.400 General 51405
Section 300.405 Discovery or notification 51408
Section 300.410 Removal site evaluation 51408
Section 300.415 Removal action 51409
Section 300.420 Remedial site evaluation 51411
Section 300.425 Establishing remedial priorities 51414
Section 300.430 Remedial investigation/feasibility study (RI/FS) and selection of remedy 51422
A. Program management principles 51423
B. Major revisions to the RI/FS and selection of remedy process 51424
C. Alternative selection of remedy approaches 51430
D. Special notice and moratoria 51432
E. EPA's approach for ground-water remediation under the Superfund
program 51433
F. Compliance with the applicable or relevant and appropriate
requirements of other laws 51435
G. Examples of potential federal and state ARARs and TBCs 51447
H. Community relations 51450
Section 300.435 Remedial design/remedial action/operation and maintenance 51458
Subpart F - State Involvement in Hazardous Substances Response 51454
Subpart G - Trustees for Natural Resources 51459
Subpart H -- Participation by Other Persons 51461
Subpart I — Administrative Record for Selection of Response Action 51463
Subpart J - Use of Dispersants and Other Chemicals 51471
National Oil and Hazardous Substances Pollution Contingency Plan, Proposed Rule, 53 FR 51394,
December 21, 1988.
1-1
-------
B. NATIONAL CONTINGENCY PLAN FINAL RULE PREAMBLE
SUBPART/SECTION/TOPIC
FR CITATION*
Subpart A - Introduction 8670
300.3 Scope 8670
300.4 Abbreviations 8670
300.5 Definitions 8671
Subpart B - Responsibility and Organization for Response 8671
300.105 General organization concepts 8671
300.110 National Response Team 8672
300.115 Regional Response Teams 8672
300.120 On-scene coordinators and remedial project managers: general
responsibilities 8674
300.125 Notification and communications 8675
300.130 Determinations to initiate response and special conditions 8676
300.135 Response operations 8677
300.140 Multi-regional responses 8678
300.145 Special teams and other assistance available to OSCs/RPMs 8678
300.150 Worker health and safety 8679
300.155 Public information and community relations 8680
300.160 Documentation and cost recovery 8681
300.165 OSC reports 8681
300.170 Federal agency participation 8683
300.175 Federal agencies: additional responsibilities and assistance 8683
300.180 State and local participation in response 8684
300.185 Nongovernmental participation 8684
Subpart C -- Planning and Preparedness 8684
300.200 General 8684
300.205 Planning and coordination structure 8685
300.210 Federal contingency plans 8685
300.215 Title III local emergency response plans; Indian tribes under Title III 8685
Subpart P -- Operational Response Phases for Oil Removal 8686
300.300 Phase I - Discovery or notification 8686
300.305 Phase II — Preliminary assessment and initiation of action 8686
300.310 Phase III - Containment, countermeasures, cleanup and disposal 8687
300.315 Phase IV — Documentation and cost recovery 8687
300.320 General pattern of response 8687
300.330 Wildlife conservation 8687
National Oil and Hazardous Substances Pollution Contingency Plan, Final Rule, 55 FR 8666,
March 8, 1990.
1-2
-------
SUBPART/SECTION/TOPIC IE CITATION*
Subpart E •• Hazardous Substance Response 8687
300.400 General
300.400(d)(3); Designating PRPs as access representatives; Administrative
300.400(d)(4)(i) orders for entry and access 8687
300.5; Definition of on-site 8688
300.400(e) Treatability testing and on-site permit exemption 8691
300.400(h) PRP oversight 8692
300.405 Discovery or notification
300.5 Definition of "CERCLIS" 8692
300.405; Listing sites in CERCLIS 8693
300.410(h)
300.415(e)
300.410; Removal and remedial site evaluations
300.420
300.410 Removal site evaluation 8693
300.410(c)(2); Removal site evaluation; Remedial site evaluation 8693
300.420(c)(5)
300.410(g) Notification of natural resource trustee 8694
300.415(b)(4); Sampling and analysis plans 8694
300.420(c)(4)
300.415 Removal action
300.415(b)(5)(ii) Removal action statutory exemption 8694
300.415(i) Removal action compliance with other laws 8694
300.5; State involvement in removal actions 8696
300.415(g)&(h);
300.500(a);
300.505;
300.525(a)
300.425 Establishing remedial priorities
300.5; Definition of National Priorities List; Establishing remedial
300.425 priorities 8698
300.425(d)(6) Construction Completion category on the National Priority List 8699
300.430 Remedial investigation/feasibility study and selection of remedy
Introduction 8700
300.430(a)(l) Program goals, program management principles and expectations .... 8702
300.430(a)(l) Use of institutional controls 8706
National Oil and Hazardous Substances Pollution Contingency Plan, Final Rule, 55 FR 8666,
March 8,1990.
1-3
-------
SUBPART/SECTION/TOPIC
FR CITATION*
300.430(b) Scoping 8787
300.430(d) Remedial investigation 8708
300.430(d) Remedial investigation ~ baseline risk assessment 8709
300.430(e) Feasibility study 8711
300.430(e)(2) Use of risk range 8715
300.430(e)(2) Use of point of departure 8718
300.430(e)(9) Detailed analysis of alternatives 8719
300.430(f) Remedy selection 8723
300.430(0(5) Documenting the decision 8731
Ground-water policy 8732
300.435 Remedial design/remedial action, operation and maintenance
300.435(b)(l) Environmental samples during RD/RA 8735
300.435(d) Contractor conflict of interest 8735
300.5; Operation and maintenance 8736
300.435(0 Notification prior to the out-of-state transfer of CERCLA wastes 8740
Applicable or relevant and appropriate requirements
Introduction 8741
300.5; Definition of "applicable" 8742
300.400(g)(l)
300.5; Definition of "relevant and appropriate" 8742
300.400(g)(2)
300.400(g)(3) Use of other advisories, criteria or guidance to-be-considered (TBC) . . 8744
300.400(g)(4)and(g)(5) ARARs under state laws 8746
300.515(d)(l) Timely identification of state ARARs 8746
300.430(0(l)(u')(Q Circumstances in which ARARs may be waived 8747
300.430(0(l)(ii)(C)(l) Interim measures 8747
300.430(0(l)(ii)(C)(2) Greater risk to health and the environment 8748
300.430(f)(l)(ii)(Q(3) Technical impracticability 8748
300.430(f)(l)(ii)(Q(4) Equivalent standard of performance 8748
300.430(f)(l)(ii)(Q(5) Inconsistent application of state requirements 8749
300.430(0(l)(ii)(Q(6) Fund-balancing 8749
300.430(e)(2XO(B) Use of maximum contaminant level goals for ground-water cleanups . . 8750
300.430(0(5)(iii)(A) Location of point of compliance for ground-water cleanup standards . . 8753
300.430(e)(2)(i)(F) Use of alternate concentration limits (ACLs) 8754
300.430(e)(2) Use of federal water quality criteria (FWQC) 8754
300.435(b)(2) Compliance with applicable or relevant and appropriate requirements
(ARARs) during the remedial action 8755
300.5 Distinction between substantive and administrative requirements 8756
300.430(0(l)(u)(B) Consideration of newly promulgated or modified requirements 8757
Applicability of RCRA requirements 8758
Determination of whether a waste is a hazardous waste 8762
When RCRA requirements are relevant and appropriate to CERCLA
actions 8763
Examples of potential federal and state ARARs and TBCs 8764
' National Oil and Hazardous Substances Pollution Contingency Plan, Final Rule, 55 FR 8666,
March 8, 1990.
1-4
-------
SUBPART/SECnONflTOPIC
FR CITATION*
Community Relations
300.430(c); Community relations during RI/FS and selection of remedy 8766
300.430(f)(2),(3),(6)
300.415(m)(2Xii); Length of puWic comment period 8770
300.430(f)(3)(i)(C);
300.435(c)(2XiiXQ
300.435(c) Community relations during remedial design/remedial action 8770
300.435(c)(2) Changes to the ROD after its adoption 8771
Other community relations requirements 8773
Enforcement
Superfund enforcement program strategy 8774
Special notice and moratoria 8774
Exemptions for federal facilities 8774
300.420; Early notification and involvement 8775
300.430;
300.435
Subpart F - State Involvement in Hazardous Substance Response 8775
300.5 Definitions of "cooperative agreement" and Superfund state contract .. 8775
300.500; EPA/State Superfund memorandum of agreement (SMOA);
300.505; Requirements for state involvement in absence of SMOA 8776
300.515(h)
300.510(c)(l),(2); State assurances - operation and maintenance and waste capacity .... 8777
300.510(e)
300.510(0 State assurances -- acquisition of real property 8778
300.515(a) Requirements for state involvement in remedial and enforcement
response 8779
300.515(b) Indian tribe involvement during response 8780
300.425(e)(2); State involvement in PA/SI and NPL process; State review of
300.515(c)(2); EPA-lead documents 8780
300.515(c)(3);
300.515(h)(3)
300.505; Resolution of disputes 8781
300.515(d)
300.515(eXl),(2) State involvement in selection of remedy 8782
Whether states should be authorized to select the remedy at NPL
sites 8783
300.515(f) Enhancement of remedy 8783
300.515(g) State involvement in remedial design/remedial action 8785
300.520(a) and (c) State involvement in EPA-lead enforcement negotiations 8785
Dual enforcement standards 8785
National Oil and Hazardous Substances Pollution Contingency Plan, Final Rule, 55 FR 8666,
March 8,1990.
1-5
-------
SUBPART/SECTION/TOPIC FR CITATION*
Subpart G - Trustees for Natural Resources 8786
300.600 Designation of federal trustees 8787
300.610 Indian tribes as trustees for natural resources under CERCLA 8788
300.615 Responsibilities of trustees 8789
Subpart H - Participation by Other Persons 8792
300.700(c) Consistent with the NCP 8792
300.700(c) Actions under CERCLA section 107(a) 8798
300.700(e) Recovery under CERCLA section 106(b) 8799
Subpart I -- Administrative Record for Selection of Response Action 8799
General comments 8800
300.800(a); Establishment of an administrative record; Contents of the
300.810(a) administrative record 8880
300.800(b) Administrative record for federal facilities 8802
300.800(c) Administrative record for state-lead sites 8802
300.800(d),(e) Applicability 8802
300.805 Location of the administrative record file 8803
300.810(a)-(d) Documents not included in the administrative record file 8804
300.815 Administrative record file for a remedial action 8804
300.815; Administrative record file for a remedial action; Administrative
300.820(a) record file for a removal action 8805
300.820(b) Administrative record file for a removal action - time-critical
and emergency 8806
300.825 Record requirements after decision document is signed 8807
Subpart J - Use of Dispersants and Other Chemicals 8808
300.900-300.920 General 8808
Appendix C - Revised Standard Dispersant Effectiveness and Toxicity Tests 8810
Appendix D - Appropriate Actions and Methods of Remedying Releases 8810
National Oil and Hazardous Substances Pollution Contingency Plan, Final Rule, 55 FR 8666,
March 8, 1990.
1-6
-------
C. NATIONAL CONTINGENCY PLAN FINAL RULE
SUBPART/SECT1ON FR CITATION*
Subpart A - Introduction 8813
300.1 Purpose and objectives 8813
300.2 Authority and applicability 8813
300.3 Scope 8814
300.4 Abbreviations 8814
300.5 Definitions 8814
300.6 Use of number and gender 8819
300.7 Computation of time 8819
Subpart B -- Responsibility and Organization for Response 8819
300.100 Duties of President delegated to federal agencies 8819
300.105 General organization concepts 8819
300.110 National Response Team 8826
300.115 Regional Response Teams 8826
300.120 On-scene coordinators and remedial project managers: general responsibilities 8827
300.125 Notification and communications 8828
300.130 Determinations to initiate response and special conditions 8829
300.135 Response operations 8829
300.140 Multi-regional responses 8830
300.145 Special teams and other assistance available to OSCs/RPMs 8830
300.150 Worker health and safety 8831
300.155 Public information and community relations 8831
300.160 Documentation and cost recovery 8831
300.165 OSC reports 8832
300.170 Federal agency participation 8832
300.175 Federal agencies: additional responsibilities and assistance 8832
300.180 State and local participation in response 8835
300.185 Nongovernmental participation 8835
Subpart C - Planning and Preparedness 8835
300.200 General 8835
300.205 Planning and coordination structure 8836
300.210 Federal contingency plans 8836
300.215 Title III local emergency response plans 8836
300.220 Related Tide III issues 8837
National Oil and Hazardous Substances Pollution Contingency Plan, Final Rule, 55 FR 8666,
March 8,1990.
1-7
-------
SUBPART/SECTION FR CITATION*
Subpart D -- Operational Response Phases for Oil Removal 8837
300.300 Phase I --Discovery or notification 8837
300.305 Phase II — Preliminary assessment and initiation of action 8837
300.310 Phase III — Containment, countermeasures, cleanup, and disposal 8838
300.315 Phase IV - Documentation and cost recovery 8838
300.320 General pattern of response 8838
300.330 Wildlife conservation 8839
300.335 Funding 8839
Subpart E — Hazardous Substance Response 8839
300.400 General 8839
300.405 Discovery or notification 8841
300.410 Removal site evaluation 8842
300.415 Removal action 8842
300.420 Remedial site evaluation 8844
300.425 Establishing remedial priorities 8845
300.430 Remedial investigation/feasibility study and selection of remedy 8846
300.435 Remedial design/remedial action, operation and maintenance 8852
300.440 Procedures for planning and implementing off-site response actions (Reserved] .... 8853
Subpart F - State Involvement in Hazardous Substance Response 8853
300.500 General 8853
300.505 EPA/State Superfund Memorandum of Agreement (SMOA) 8853
300.510 State assurances 8854
300.515 Requirements for state involvement in remedial and enforcement response 8855
300.520 State involvement in EPA-lead enforcement negotiations 8856
300.525 State involvement in removal actions 8857
Subpart G - Trustees for Natural Resources 8857
300.600 Designation of federal trustees 8857
300.605 State trustees 8857
300.610 Indian tribes 8857
300.615 Responsibilities of trustees 8857
Subpart H •- Participation by Other Persons 8858
300.700 Activities by other persons 8858
National Oil and Hazardous Substances Pollution Contingency Plan, Final Rule, 55 FR 8666,
March 8, 1990.
1-8
-------
SUBPART/SECTION PR CITATION*
Subpart I - Administrative Record for Selection of Response Action 8859
300.800 Establishment of an administrative record 8859
300.805 Location of the administrative record file 8859
300.810 Contents of the administrative record file 8860
300.815 Administrative record file for a remedial action 8860
300.820 Administrative record file for a removal action 8860
300.825 Record requirements after the decision document is signed 8861
Subpart J - Use of Dispersants and Other Chemicals 8861
300.900 General 8861
300.905 NCP Product Schedule 8861
300.910 Authorization of use 8861
300.915 Data requirements 8862
300.920 Addition of products to schedule 8864
Subpart K - Federal Facilities [Reserved] 8864
National Oil and Hazardous Substances Pollution Contingency Plan, Final Rule, 55 FR 8666,
March 8, 1990.
1.9
-------
Part II:
Proposed Rule Preamble
-------
Wednesday
December 21, 1988
Part V
Environmental
Protection Agency
40 CFR Part 300
National Oil and Hazardous Substances
Pollution Contingency Plan; Proposed
Rule
-------
51394 Federal Register / Vol. 53, No. 245 / Wednesday, December 21, 1988 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 300
[FRL-3381-4]
National Oil and Hazardous
Substances Pollution Contingency
Plan
AGENCY: Environmental Protection
Agency.
ACTION: Proposed rule.
SUMMARY: The Environmental Protection
Agency (EPA) is proposing revisions to
the National Oil and Hazardous
Substances Pollution Contingency Plan
(NCP). The Superfund Amendments and
Reauthorization Act of 1986 (SARA)
amends existing provisions of and adds
major new authorities to the
Comprehensive Environmental
Response, Compensation, and Liability
Act of 1980 (CERCLA). Furthermore,
SARA mandates that the NCP be
revised to reflect these amendments.
The proposed NCP revisions are
intended to implement regulatory
changes necessitated by SARA, as well
as to clarify existing NCP language and
to reorganize the NCP to coincide more
accurately with the sequence of
response actions.
DATES: Comments on the proposed
revisions to the NCP must be submitted
on or before February 21,1989.
Elsewhere in this issue of the Federal
Register, a separate notice is being
published announcing the dates, times,
and locations of public meetings
regarding today's proposed revisions to
the NCP to be held during the public
comment period.
ADDRESS: Written comments on the
proposed revisions to the NCP should be
submitted, in triplicate, to the Superfund
Docket, located in Room LG at the U.S.
Environmental Protection Agency, 401 M
Street SW., Washington. DC 20460. The
record supporting this rulemaking is
contained in the Superfund Docket and
is available for inspection by
appointment only between the hours of
9:00 a.m. and 4:00 p.m., Monday through
Friday, excluding legal holidays. As
provided in 40 CFR Part 2, a reasonable
fee may be charged for copying services.
FOR FURTHER INFORMATION CONTACT:
Tod Cold, Policy and Analysis Staff,
Office of Emergency and Remedial
Response (OS-240], U.S. Environmental
Protection Agency, 401 M Street SW.,
Washington. DC 20460, at 1-202-382-
2182. or the RCRA/Superfund Hotline at
1-800-424-8346 (in Washington, DC. at
1-202-382-3000).
SUPPLEMENTARY INFORMATION: The
contents of today's preamble are listed
in the following outline:
I. Introduction
n. Major Revisions in Each Subpart
III. Summary of Supporting Analyses
L Introduction
Pursuant to section 105 of the
Comprehensive Environmental -
Response, Compensation, and Liability
Act of 1980, Pub. L No. 96-510, as
amended by section 105 of the
Superfund Amendments and
Reauthorization Act of 1988, Pub. L No.
99-499. (CERCLA or Superfund or the
Act), and Executive Order (E.O.) No.
12580 (52 FR 2923, January 29,1987), the
Environmental Protection Agency (EPA)
is proposing revisions to the National
Oil and Hazardous Substances Pollution
Contingency Plan (NCP). Revisions to
the NCP were last promulgated on
November 20,1985 (50 FR 47912). For the
reader's convenience and because the
section numbers are being changed, EPA
is reprinting the entire NCP, except for
Appendices A (Uncontrolled Hazardous
Waste Site Ranking System: A Users
Manual) and B (National Priorities List),
which are or will be proposed
separately, and C (Revised Standard
Dispersant Effectiveness and Toxicity
Tests), for which only minor technical
corrections are being proposed. EPA is
not reproposing those portions of the
NCP that are unchanged and does not
solicit comment on those provisions.
Comment is requested only on new
portions of, or substantive changes to,
the NCP.
All existing subparts of the NCP have
proposed revisions and several new
subparts are being added. Furthermore.
because the NCP is being reorganized,
many of the existing subparts have been
redesignated with a different letter. The
proposed reorganization of NCP
subparts is as follows:
Subpart A—Introduction
Subpart B—Responsibility end Organization
for Response
Subpart C—Planning and Preparedness
Subpart D—Operational Response Phases for
Oil Removal
Subpart E—Hazardous Substance Response
Subpart F—Start Involvement In Hazardous
Substance Response
Subpart C—Trustees for Natural Resources
Subpart H—Participation by Other Persons
Subpart I—Administrative Record for
Selection of Response Action
Subpart)—Use of Oispersants and Other
Chemical*
Subpart K—Federal Facilities [Reserved]
In today's revisions to the NCP, EPA
is proposing a broad and comprehensive
rulemaking to revise as well as
restructure the NCP. The primary
purpose of today's proposal is to
incorporate changes mandated by the
Superfund Amendments and
Reauthorization Act of 1988 (SARA) anc
to set forth the EPA's proposed
approach for implementing SARA.
SARA extensively revised existing
provisions of and added new authorities
to CERCLA. These changes to CERCLA
necessitate revision of the NCP.
The regulation and the rest of the
preamble use the term "CERCLA" to
mean CERCLA as amended by SARA:
the term "SARA" is used only to refer to
Title m, which is an Act separate from
CERCLA, and to other parts of SARA
that did not amend CERCLA. The term
"SARA" is used in this overview portion
of the preamble, however, to highlight
the changes to CERCLA.
A. Statutory Overview
The following discussion summarizes
the CERCLA legislative framework, with
particular focus on the major revisions
to CERCLA mandated by SARA as well
as those mandated by EO. No. 12580,
which delegates certain functions vested
in the President by CERCLA to EPA and
other Federal agencies. In addition, this
discussion gives reference to the specific
preamble sections that detail how these
changes to CERCLA are reflected in
today's proposed rule.
1. Reporting and Investigation.
CERCLA section 103 requires that a
release into the environment of a
hazardous substance in an amount
equal to or greater than its "reportable
quantity" (established pursuant to
section 102 of CERCLA) must be
reported to the National Response
Center. Title ffl of SARA establishes a
new, separate program that requires
releases of hazardous substances, as
well as other "extremely hazardous
substances," to be reported to State and
local emergency planning officials. The
preamble discussion of Subpart C
summarizes Title ID reporting
requirements.
CERCLA section 104 provides the
Federal government with authority to
investigate releases. SARA amends
CERCLA section 104 to clarify EPA's
investigatory and access authorities,
explicitly empowering EPA to compel
the release of information and to enter
property for the purpose of undertaking
response activities. Amended section
104(e) also provides Federal courts with
explicit authority to enjoin property
owners from interfering with the
cxraduct of response actions. SARA -
further amends CERCLA section 104 to
authorize EPA to allow potentially
responsible parties (PRPs) to conduct
investigations. The preamble discussion
-------
Federal Register / VoL 53. No. 245 / Wednesday, December 21t 1988 / Proposed Rules 51395
nf Subpart E details how these revisions
to CERCLA are reflected in today'*
proposed rule.
2. Response Actions. CERCLA. section
104 provides broad authority for a
Federal program to respond to releases
of hazardous substances and pollutants
or contaminants. There are two major
types of response actions: the first ia
"removal action." the second ia
"remedial action." CERCLA section lot
is amended by SARA to increase the
flexibility of removal actions. Thi*
amendment increases the dollar and
time limitations on removal actions, from
$1 million and six months to $2 million
and one year, and allows a new
exemption from either limit if
continuation of the removal action is
consistent with the remedial action to be
taken. (The existing exemption for
emergency actions remains in effect.}
SARA also amends CERCLA section 104
to require removals to contribute to the
efficient performance of a long-term
remedial action, where practicable.
In addition, SARA amends CERCLA
section 104 to require that, for the
purpose of remedial actions, primary
attention be given to releases posing a
threat to human health. (To this end.
SARA also amends CERCLA section 104
to expand hearth assessment
requirements at sites and to allow
individuals to petition ATSDR for health
assessments.)
Among the major new provisions
added by SARA are .CERCLA sections
121(a) through 121(d}, which supplement
sections 104 and 106 by stipulating
general rules for the selection of
remedial actions, providing for review of
remedial actions, and describing
requirements for the degree of cleanup.
These new sections codify rigorous
remedial action cleanup standards by
mandating that remedial actions meet
applicable or relevant and appropriate
Federal standards and more stringent
State standards. Where the remedial
action involves transfer of hazardous
substances off-site, this transfer may
only be made to facilities in compliance
with the Resource Conservation and
Recovery Act (RCRA) (or other
applicable Federal laws) and applicable
State requirements. (EPA has proposed
separately the regulatory requirements
for the off-site transfer of hazardous
substances and codify these in the final
NCP, 53 FR 48218. November 29,1988.)
Section 121 emphasizes a long-term
perspective on remedies by requiring
that long-term effectiveness of remedies
and permanent reduction of the threat
be considered and that the calculation
of the cost-effectiveness of a remedy
include the long-term costs, including
the cost of operation and maintenance.
The section mandates a preference for
remedies that permanently reduce the
"volume, toxicity. or mobility" of the
hazardous substance, and requires that
remedies use permanent solutions and
alternative technologies or resource
recovery technologies to the maximum
extent practicable. The preamble
discussion of Subpart E details how
these revisions to CERCLA are reflected
in today's proposed rale.
3L State and Public Participation. New
CERCLA section 121 (f) requires Ihe
"substantial aad meaningful"
Involvement of the States in the
initiation, development, and selection of
remedial actions. States are to be
involved in decisions on conducting
preliminary assessments and site
inspections. States will also have a role
in long-term planning for remedial sites
and negotiations with potentially
responsible parties. In addition. States
are to be given reasonable opportunity
to review and comment OB such
documents as the remedial
investigation/feasibility study (RI/FS)
and the proposed plan for remedial
action. CERCLA also provides in section
121(e)(2) that a State is permitted to
enforce any Federal or State standard,
requirement, criterion, or limitation to
which the remedial action is required to
conform.
CERCLA section 104(d) provides that
a State may apply to carry out the
response action. This section allows
States to enter into cooperative
agreements with the Federal government
to conduct response actions. SARA
amends CERCLA section 104 to make it
easier for States to enter into such
cooperative agreements. The preamble
discussion concerning Subpart F details
how these revisions to CERCLA are
reflected in today's proposed rule.
SARA adds a new CERCLA section
117 to codify public involvement hi the
Superfund response process. This
section mandates public participation in
the selection of remedies and provides
for grants allowing groups affected by a
release to obtain the technical expertise
necessary to participate in
decisionmaking. Proposed community
relation* requirements are described in
section H of the Subpart E, § 300.430
preamble discussion.
4. Enforcement CERCLA sections 106
and 107 authorize EPA to take legal
action to recover from responsible
parties the cost of response already
•nderway or to compel them to respond
to the problem themselves. SARA adds
to CERCLA a number of provisions that
are intended to facilitate responsible
party financing of response actions.
CERCLA section 122, for example,
provides mechanisms by which
settlements between responsible parties
and EPA can be made, and allows for
"mixed funding" of response actions,
with both EPA and responsible parties
contributing to response costs.
SARA creates a new CERCLA section
310, which allows Cor citizen suits. Any
person may commence a civil action on
his/her own behalf against any person
(including the United States and any-
other governmental instrumentality or
agency, to tke extent permitted by the
eleventh amendment to the
Constitution), alleged to be in violation
of any standard, «*g»tat*on, -pondit'on.
requirement, or order which has become
effective pursuant to CERCLA (including
any provision of an agreement under
section 120 relating to Federal facilities).
A civil action may also be commenced
against the President or any other officer
of the United States (including the
Administrator of the Environmental
Protection Agency and the
Administrator of the Agency for Toxic
Substances and Disease Registry) where
there is alleged a failure to perform any
act or duty onder CERCLA, including an
act or duty under section 120 (relating to
Federal facilities), which is not
discretionary with the President or such
other Federal officer, except for any act
or duty under section 311 (relating to
research, development, and
demonstration). Section 310 requires
that citizen wits be brought in a United
States district court.
SARA amends CERCLA section 113 to
require the lead agency to establish an
administrative record upon which the
selection of a response action is- based.
This record must be available to the
public at or near the site. Section 113(j)
provides that Judicial review of any
issues concerning the adequacy of any
response action ia limited to the
administrative record. The preamble
discussion of new Subpart I includes the
introduction of administrative record
requirements into the NCP.
5. Federal facilities. Section 120(a)(2)
of CERCLA provides that all guidelines.
rules, regulations, and criteria for
preliminary assessments, site
investigation. National Priorities List
(NPL) listing, and remedial actions are
applicable to Federal facilities to the
same extent as they are applicable to
other facilities. No Federal agency may
adopt or utilize guidelines, rules,
regulations, or criteria that are
inconsistent with those established by
EPA under CERCLA. (For purposes of
the NCP, the term 'lead agency"
generally includes Federal agencies that
are conducting response actions at their
own facilities.)
-------
51396 Federal Register / Vol. 53, No. 245 / Wednesday. December 21. 1988 / Proposed Rules
Section 120 also defines the process
that Federal agencies must use in
undertaking remediation at their
facilities. It requires EPA to establish a
Federal agency hazardous waste
compliance docket that includes a list of
Federal facilities. EPA must assure that
a preliminary assessment is conducted
at each facility within 18 months of
enactment and, where appropriate,
evaluate these facilities for potential
inclusion on the NPL within 30 months
of enactment Section 120(d) clarifies
that Federal facilities shall be evaluated
for inclusion on the NPL by applying
listing criteria in the same manner as the
criteria are applied to private facilities.
Requirements governing listing are set
forth in proposed Subpart E of the NCP
and in Appendix A (the Hazard Ranking
System). Federal agencies must
commence the RI/FS within six months
of listing on the NPL and enter into an
interagency agreement with EPA.
Section 120[e) provides for joint EPA/
Federal agency selection of the remedy,
or selection by EPA if EPA and the
Federal agency are unable to reach an
agreement CERCLA section 120{f) .
makes clear that State officials shall
have an opportunity to participate in the
planning and selection of the remedial
action, in accordance with section 121.
The requirements of the NCP.
including the requirements related to RI/
FS and selection of remedy and the
administrative record, are applicable to
Federal agency response actions under
CERCLA at NPL and non-NPL sites.
except where specifically noted that the
requirements apply only to Fund-
financed activities. However, the
deadlines in section 120(e) and the
requirement for joint selection of the
remedy do not apply at non-NPL sites. A
subpart specifically for Federal facilities
(Subpart K) is reserved in this proposal.
EPA plans to propose Subpart K after
this proposal of the NCP. EPA is
following its usual regulation
development process for this subpart,
including formation of a workgroup. The
workgroup will be managed by EPA and
will include membership of interested
Federal agencies and States. EPA plans
to finalize Subpart K as expeditiously as
possible after consideration of public
comment '
Even in instances where NCP -
requirements do not appear strictly to
apply to Federal agency response, de
facto compliance may still be necessary.
One such example is the statutory
limitations of 12 months and $2 million
on removal actions. When either of
those limits is reached and no statutory
exemption applies. Fund-financed
activity must cease, unless appropriate
remedial actions are planned. Thus, the
limitations serve two purposes. In
addition to their primary function of
establishing the funding limits on
removals, the statutory time and dollar
limits also serve as markers signaling
the end point of removal authority. In
order for Fund-financed remediation
activity to continue at a aite where a
statutory limit has been reached and no
exemption applies, it must be conducted
as a remedial action. Thus, while the
limits have no real application to .
.funding or duration of response at a
Federal facility, they do mark the point
at'which applicable remedial
requirements of the NCP must begin to
be met. ,
B. Brief Summary of Proposed Changes
to the NCP
In addition to incorporating changes
mandated by SARA and E.0.12580. the
proposed revisions are intended to:
1. Reorganize the NCP to describe
more accurately the sequence in which
response actions are taken pursuant to
the NCP;
2. Clarify existing language on roles.
responsibilities, and activities of
affected parties; and
3. Incorporate changes suggested by
program experience since the last
revisions to the NCP.
Major revisions in each subpart are
summarized briefly in the paragraphs
that follow:
Proposed Subpart A is similar to
existing Subpart A, but contains some
clarifying revisions. Proposed Subpart A
also reflects new statutory definitions
and authorities. Subpart B combines the
existing NCP's Subparts B and C; and
the letter designations of existing
Subparts D through F are changed
accordingly. Proposed Subpart B of this
regulation lists specific responsibilities
that Federal agencies have as members
of the National Response Team.
Proposed Subpart C (existing Subpart D)
includes the information from the
current NCP regarding "Plans" and adds
information on Title III of SARA.. .
However, it should be noted that
regulations implementing Title III of
SARA are found at 40 CFR Part 355 et
seq.
Redesignated Subpart D (existing
Subpart E), "Operational Response .
Phases for Oil Removal" does not have
significant proposed revisions. Proposed
Subpart E (existing Subpart F) addresses
hazardous substance response. Today
EPA is proposing major revisions to this
subpart to incorporate the CERCLA
amendments to hazardous substance
response authorities. Furthermore, EPA
is proposing to restructure the sections
within new Subpart E to correspond
more accurately to established
procedures for hazardous substance •'
response.
Proposed Subpart F (new) is being
added to satisfy the new statutory
mandate to promulgate regulations for
State involvement in CERCLA response
actions. State participation in Federal
facility response will be governed by the
provisions of proposed Subpart F.
Proposed Subpart G (existing Subpart G)
contains several revisions to clarify the
designations of trustees for natural
resources. Proposed Subpart H (new)
consolidates into one new subpart
existing language currently in various
NCP sections concerning participation
by other persons in response activities,
with some revisions and additions.
Proposed Subpart I (new) codifies the
statutory requirements for establishment
of an administrative record documenting
how a response action is selected for a
given CERCLA site. Proposed Subpart),
"Use of Dispersants and Other
Chemicals," is very similar to existing
Subpart H; clarifying revisions are
proposed to this subpart
Executive Order 12580. in conjunction
with CERCLA. delegates responsibility
for remedial actions at NPL or non-NPL
sites and all removal actions, except
emergencies, to the heads of Executive
departments and agencies, where either
the release is on, or the sole source of
the release is from, any facility or vessel
under the jurisdiction, custody, or
control of those departments and
agencies, including vessels bare-boat
chartered and operated. The E.O. also
delegates authority to the Department of
Defense (DOD) and Department of
Energy (DOE) to respond to emergencies
under their jurisdiction, custody, or
control. The E.O. delegates to EPA the
responsibility for defining the term
emergency for the purposes of the
delegations.
For the purpose of the delegations,
EPA considers an emergency to be •
release or threat of release general!-
requiring initiation of a r»s:3vai action
within hours of the lead agency's
determination that a removal action is
appropriate. This is consistent with the
discussion in the preamble for removals
(5 300.415) and in the regulatory section
on the administrative record for
removals (( 300.820). EPA will respond
only to those public health or
environmental emergencies that the
Federal agency cannot respond to in a
timely manner.
EPA invites public comment on
today's revisions, including comments
on the proposed reorganization
described above. Table I, which shows
-------
Federal Register / Vol. S3. No. 245 / Wednesday. December 21, 1988 / Proposed Rules .51397
the distribution of current NCP sections
into proposed new sections, has been
prepared to assist the reader in
identifying and tracking the reorganized
rule language. An asterisk {*) next to a
new section number indicates that
substantial changes are proposed.
TABLE 1.— NCP DISTRIBUTION TABLE
Old »ection and title
Subpart A ' '
300.1-Putpocevid .
Objectives.
9Q03— SoOTHl ~~ ~"
*X>3(«) .........
•VXIIfK)
ann9(r)
300.4-AppBcation
300.5— Abbreviation*-—,.
ann^n) •• ' L -
ann«(h)
300.6— Definitions
Subpart B
300.21— Duties of the
President delegated to
Federal agencies.
300.22— Coordnation
among and by Federal
agencies.
arm ??(«)
aan.»(b)
300.22(c)
300 -22(d)
ano ??(a)
3oo?9(r)
300 "(0)
300.23— Other
assistance by Federal
agencies. - - •
300 M(a)
300 M(h)
300 M(r)
300.23(d)_._
300.24— State and local
participation.
300.25—
Nongovemmental
participation.
300.25(a-c)
300.25(d)
SubpartC
300.31— Organizational
concepts.
300.32— Planning and
coordination.
300.32(a)
3003?(h)
300.99(r)
300.33 — Response
operations. - - •
30033(fl) . .,
30033(h)
300 34— Special forces
and teams.
300.34(a)
30034(h)
300.34(C)__
300.34(d).
300.34(e)
300.34(0- _ .
30034(g)
300.34(h)
. . Now section ",. .
' •:' '.", *' - ' •'<
. (SubpartA)
300.1.*.
9002.
300.3(a). •- • - - • -
300.3(b) (1-4). (6), (9).
30O3(c). . . .
300.2.
300.4(a).
300.4(b).*
300.S.* ...
tSubpart B)
300.100.
300.105(a)(1-2).*
300.105
300.37— SpecW '
-considerations. .. ' -
ano97(.) , .
300^7(h) ,
3O0.38— Worker heatth. .
•nd safety.
300.39— Pubfc
trllOffnaltkXt. " • " ""• "•
300.40— OSC report*
SabptitD ..-;•'•
300.41— Regional and -,
local Plans.
300.42— Regional
contingency plans.
30042(«).rll
aooA»(h)
30042(c) , .,'...
300.43— Local
contingency plans.
30043(«)
30043(h)
SubpartE -_. ,.
300.51— Phase 1 —
Discovery and
notification..
300.52— Phase tl—
Preliminary
assessment and
initiation of action.
300.53— Phas« III—
- Containment.
. countermeasures,
cleanup, and disposal.
300^4— Phase IV
Documentation and
cost recovery.
300.55— General pattern
of response.
300.56— [Reserved!
300.57— Waterfowl
conservation.
300.58— Funding
SubpoflF ' «-,
300.61— General
aoo8i(»)
300.61 (b).
aooei(c)
300ei(ri) ,
300fi1(«)
300 62— State role
300.63 — Discovery or
notification.
300 83(a)
3OO fi.1(h) r
30063(r)
anflM(rT) . ,
assessment for
removal actions.
3O064{Mi)
30O(U(r)
3O084{d)
300.64(e)
300.65— Removals
300.6S<«)
300.65(b)
New section
300.140.
300.125.
,300.1 15®(5). .
Deieted.
300.145(0)."
300.150.
300.155.
300.165.
(Proposed to become
. SobpartQ
300JZ10.* - - .
300.210(0).
Oeleted
300^10(b).
300.21 0(c).*
Deleted.
(Proposed to become
SubpartD)
300.300.
300.305.
300.310.
300.315.
300.320.
Deleted.
300.330.
300.335.
(Proposed to become
SubpartE)
300.400(a).
Deleted
300.400(c).
300.400(h).
300.4000).
Replaced by new •
SubpartF.
300.405(«).
300.40S(b).
300.405(e).
300.405(0.
300.410(o-d).
300.410o
New section
300.415(d).
300.41 5(t).
300.415(g).
300.415®.*
300.41 5(k).
300.700(c).*
300.420(a-c).*
300.425(c).*
300.425(b) A (d-e).* .
3O0.415(n)*; 300.430(c)
« (0*; 300.435(0).*
300.430*; Append* 0.*
300.160. '
Replaced by new •
Appendfx D. .--•
Replaced by new'
Subpart R
(Subpart G)
300.600.*
300.605.
300.615.*
(Proposed to become
Subpart J)
300.900.
300.5.
300.905.
300.910.
300.915.
300.920.
Subpart L
II. Major Revisions in Each Subpart .
In this section, revisions to each
subpart are explained. Major revisions
for each subpart (and each section in the
case of Subpart E) are discussed first,
followed by a discussion of other
revisions.
Subpart A — Introduction
Subpart A, the preface to the NCP.
contains statements of purpose, • <• -.
authority, applicability, and scope. It
also explains the abbreviations and
defines the terms used in the NCP.
A. Major Revisions
I. Definitions reflecting the roles of
States and Federal agencies. Changes
are proposed for the current definitions
of "lead agency," "on-scene
coordinator" (OSC], and "remedial
project manager" (RPM), and new
definitions are proposed for "support
agency," "support agency coordinator,"*
"Superfund State contract," and
-------
51398
Federal Register / VoL 53. No. 245 / Wednesday, December 21. 1988 / Proposed Rules
"Superfund Memorandum of
Agreement" (SMOA).
• The proposed definition of "lead
. agency" states that the lead agency
provides the OSC/RPM to plan and
implement the response action under the
NCR The terms "plan" and "implement"
for purposes of a remedial action refer
to the RI/FS and the remedial design/
remedial action (RD/RA) activities.
respectively. The "lead agency" .
definition includes political subdivisions
of States, as well as States themselves,
and a reference to SMOAs. In addition,
because Indian Tribes are afforded
substantially the same treatment as
States are afforded during response
actions, the proposed definition of
"State" includes Federally recognized
Indian Tribes. (See { 300.515 for
requirements Indian Tribes must meet to
be afforded the same treatment as
States.} Thus, for example. EPA may
enter into cooperative agreements with
such Indian Tribes. The proposed "lead
agency" definition also reflects E.O.
12560, which delegates lead agency
authorities to Department of Defense
(DOD), Department of Energy (DOE),
and other Federal agencies under
certain specific conditions. The Federal
agency will maintain its lead agency
implementation responsibilities even
when the remedy at an NPL site is
selected jointly with EPA, or when the
remedy is selected by EPA alone in
situations where the Federal agency and
EPA are unable to reach agreement The
new definition of "support agency"
clarifies the relationship between the
lead and support agencies described in
proposed NCP provisions. In the case of
remedial actions taken at Federal
facilities under CERCLA section 120,
EPA and the State will both be support
agencies to the lead Federal agency.
The definitions for OSC and RPM are
proposed to be simplified, with
emphasis placed on the agency that
designates the official. The proposed
definitions for OSC and RPM combined
with the definition for "lead agency"
allow an official from a State, political
subdivision, or Indian Tribe to be the
lead OSC or RPM where a cooperative
agreement a contract or the SMOA
designates one of those entities as lead
agency. It should be noted that this
designation must be made on a site-
specific basis. In some circumstances, a
support agency coordinator, also
defined in Subpart A, may be designated
on a site-specific basis, with authority to
carry out support agency responsibilities
for particular response actions.
The new definitions for SMOA and
"State Superfund contract" clarify the
Federal/State partnership. Both
documents are intended to formalize the
responsibilities of lead and support
agencies. The SMOAs are described in
greater detail in the proposed new
Subpart F of the NCP.
2. Definitions of "applicable
requirements"and "relevant and
appropriate requirements." These
definitions have been modified pursuant
to the CERCLA amendments to include
the statutory provision that in addition
to Federal requirements,, more stringent
promulgated State requirements can
also be applicable or relevant and
appropriate.
In addition, EPA proposes to revise
the definitions of the terms "applicable
requirements" and "relevant and
appropriate requirements" to clarify the
wording of these two definitions without
altering their basic meaning or
significance. The current NCP defines
"applicable requirements" as "those
Federal requirements that would be
legally applicable, whether directly, or
as incorporated by a Federally
authorized State program, if the
response actions were not undertaken
pursuant to CERCLA section 104 or 106."
EPA today proposes to define applicable
requirements as "those cleanup
standards, standards of control, and
other substantive environmental
protection requirements, criteria, or
limitations promulgated under Federal
or State law that specifically address a
hazardous substance, pollutant
contaminant remedial action, location,
or other circumstance at a CERCLA
site."
The proposed changes to the current
definitions are not substantive and are
not intended to affect implementation.
They are intended to clarify the
definitions and, in the case of
"applicable," eliminate the conditional
wording of the current definition, which
has caused some confusion. However,
EPA is not changing its position (see 50
FR 47917. November 20,1985) that other
environmental laws do not legally apply
to on-site response actions conducted
under the authority of CERCLA sections
104,106, or 122, except as they are
incorporated by CERCLA section 121(d).
Nonetheless, as EPA decided in
promulgating the 1985 NCP revisions,
and as Congress affirmed in enacting
section 121 of CERCLA, the substantive
requirements of other environmental
laws will be met in CERCLA remedial
actions. The only exceptions to this
requirement are the six specified in
CERCLA section 121(d)(4).
The current NCP defines "relevant
and appropriate requirements" as "those
Federal requirements that while not
'applicable,' are designed to apply to
problems sufficiently similar to those .
encountered at CERCLA sites that their
application is appropriate. Requirements
may be relevant and appropriate if they
would be 'applicable' but for
jurisdictional restrictions associated
with the requirement." Today EPA
proposes to clarify this definition with
the following substitution: "Relevant
and appropriate requirements means
those cleanup standards, standards of
control, and other substantive
environmental protection requirements,
criteria, or limitations promulgated
under Federal or State law that while
not 'applicable' to a hazardous
substance, pollutant contaminant
remedial action, location, or other • .
circumstance at a CERCLA site, address
problems or situations sufficiently
similar to those encountered at the -
CERCLA site that their use is well suited
to the particular site."
The word "substantive" in the
proposed definitions is not meant to
imply a necessary level of "significance"
or "weight" for a requirement to be
applicable or relevant and appropriate.
Rather, "substantive" is used to
distinguish the universe of applicable or
relevant and appropriate requirements
from administrative or procedural
requirements, which are not potentially
applicable or relevant and appropriate.
Further discussion on applicable or
relevant and appropriate requirements
and how they are identified and used in
the remedial selection process, including
more discussion of the distinction
between "substantive" and
"administrative," can be found in the
Subpart E, 5 300.430 preamble section
below, "F. Compliance with the
applicable or relevant and appropriate
requirements of other laws."
B. Other Revisions
1. Organization of Subpart A. EPA has
rewritten S 300.1, "Purpose and
objectives," to clarify that the purpose
of the NCP is twofold: (1) To provide a
plan for an organizational structure; and
(2) to provide a plan for responses,
under that structure, to discharges of oil
and releases of hazardous substances,
pollutants, or contaminants.
Section 300.2, "Authority," is
combined with current { 300.4,
"Application," to eliminate
redundancies. Section 300.3, "Scope," Is
being expanded to reflect new
authorities created by the CERCLA
amendments. Proposed § 300.3(b)
reflects the outline of the NCP.
In addition, definitions contained in
the current Subpart H, "Dispersants,"
(e.g. burning agent sinking agent) are
proposed to be moved to Subpart A so
-------
Federal Register / Vol. 53. No. 245 / Wednesday. December 21. 1988 / Proposed Rules 51.t99
that all definitions are in one place. No
substantive changes are proposed to
these definitions. Proposed § 5 300.6 and
300.7 have been added to explain use of
number and gender and computation of
time in the NCP.
2. New abbreviations, EPA is
including many operational
abbreviations that are commonly used
in communications regarding actual site
response. For example, the abbreviation
"RI/FS" is commonly used by EPA to
refer to the remedial investigation/
feasibility study process where hazards
at CERCLA sites are characterized and
alternatives for response to those
hazards are developed. EPA believes
that the NCP should contain
abbreviations that have become
common in EPA communications.
However, EPA is not adding any new
department or agency title
abbreviations, even though the Nuclear
Regulatory Commission is now a
member of the National Response Team
(NRT). Because "NRG" is already listed
as the abbreviation for the National
Response Center, confusion will be
avoided by not using this abbreviation
for Nuclear Regulatory Commission.
3. Minor definitional changes. Some
of the changes are merely to conform
with word or phrase changes required
by CERCLA or Executive Order 12500,
and others are proposed strictly for
clarification. The following are changes
required to conform with the statute:
Addition of abandonment of drums to
the definition of "release;" addition of a
phrase to include related enforcement
activities in the definitions of "remove
or removal," "remedy or remedial
action," and "respond or response;" and
addition of provisions for Indian Tribes
to the definition of "natural resources."
Clarifying changes include expanded
definitions of "trustee" and "operable
unit" Indian Tribes were added to the
definition of "trustee" to be consistent
with statutory changes.
The definition of "operable unit" was
expanded to explain that operable units
can be distinguished by their
dimensional aspects. This is an
important concept because a Record of
Decision often is signed for, and site
work often is conducted as. one or
several operable units, not an entire site
response. Operable units may be actions
performed at a site simultaneously on
different portions of the site or in a
series of actions. Sometimes the purpose
of conducting an operable unit is to
address the most imminent threat or to
stabilize a threat posed by the site or to
undertake a discrete, well-defined
portion of the project while developing
the overall remedial action. Examples of
this are providing an alternative water
supply or retarding movement of a
contaminated plume while a source
control and ground-water remediation
strategy is being formulated. Sometimes
remediation may consist of several
operable units conducted sequentially
for logistical and technical reasons. An
example of this is where demolition and
treatment of waste in tanks on a site is
the first operable unit to facilitate
locating equipment or materials
handling for staging the second operable
unit, which may be to cleanup an
adjacent lagoon or contaminated soils
on the site. In addition, operable units
sometimes may be conducted
concurrently but as separate activities.
An example of this is where source
control activities are one operable unit
and ground water restoration is another
operable unit For more information on
operable units, see proposed regulatory
and preamble language for Subpart E,
S 300.430.
Changes also include shortened
' definitions of "remedial investigation,"
"feasibility study," "source control
remedial action," and "management of
migration." EPA is proposing to shorten
the definitions because the current
definitions contain details inappropriate
for a definition. These definitional
changes do not represent a change in
policy or meaning.
4. New definitions. EPA is proposing
to incorporate in the NCP new
definitions that were added to CERCLA.
The proposed NCP adds definitions
directly from the statute for the terms
"alternative water supply" and "Indian
Tribe."
EPA is also proposing the addition of
several new definitions including
"CERCLIS," "community relations
coordinator," "cooperative agreement"
"miscellaneous oil spill control agents,"
"operation and maintenance,"
"preliminary assessment," "public
vessel" "remedial design," "SARA,"
"site inspection," "State," "treatment
technology," and "vessel."
i. CERCLIS. EPA is proposing to add a
definition for CERCLIS because
CERCLIS has become a key
documentation tool for most Superfund
remedial and removal activities, and it
is mentioned in portions of the NCP.
CERCLIS is EPA's inventory of potential
hazardous waste sites. In the past.
CERCLIS was primarily an inventory of
remedial releases or sites and included
only some sites on which removals had
been undertaken. However, CERCLIS
has recently been changed to include
releases at removal, remedial, and
enforcement sites so that it is a more
comprehensive list of all Superfund
activities. To ensure as comprehensive a
data base as possible, EPA is now also
entering data for CERCLA response
actions undertaken by the United States
Coast Guard (USCG). In addition, as the
definition explains, CERCLIS contains
active and inactive (i.e., previously
addressed) sites. EPA archives inactive
sites in CERCLIS as a historical record
of accomplishment For informational
and dissemination purposes, EPA
considers only active sites.
ii. Community relations coordinator.
EPA is proposing the addition of a
definition for the term "community
relations coordinator." The community
relations coordinator is an important
person in CERCLA responses; therefore,
EPA believes it is necessary to include a
definition of the title for informational
purposes.
iii. Cooperative agreement. EPA is
proposing to define cooperative
agreement as a Federal assistance
agreement in which substantial EPA
involvement is anticipated.
iv. Miscellaneous oil spill control
agents. EPA is proposing to add a
definition of "miscellaneous oil spill
control agents" for informational
purposes.
v. Operation and maintenance and
remedial design. The terms, "operation
and maintenance" (O&M) and "remedial
design" are proposed as new definitions
because they are important terms
commonly used in EPA communications;
furthermore, a new NCP section
(§ 300.435) has been added to reflect
new CERCLA provisions affecting
remedial design/remedial action (RO/
RA) and O&M.
vi Preliminary assessment and site
inspection. EPA is proposing to add
definitions for the terms, "preliminary
assessment" (PA) and "site inspection"
(SI), because they are important and
discrete procedures in the site
evaluation process. Use of the terms is
also common in EPA communications.
There are two kinds of PAs and Sis.
Removal PAs and removal Sis are
carried out to determine the nature of a
release and associated threats when
initial notification or discovery data
suggest that a relatively rapid
assessment or response is appropriate.
The objective of removal PAs and Sis is
to make timely and accurate decisions
on which subsequent removal actions
can be based. The other subset is
remedial PAs/SIs. Remedial PAs are
generally the first stage in the process of
evaluating whether there is a release or
threatened release at a site that does not
appear to warrant removal action and
determining the nature of the threat
associated with that release or threat.
Remedial Sis are the second step in the
process and include an on-site
-------
51400 Federal Register / VoL S3, No. 245 /Wednesday, December 21. 1988 / Proposed Rules
investigation and other gathering of data
to determine whether further action at
the site is necessary.
vii. Public resseland vessel.
Definitions for the terms "public vessel"
and 'Vessel," taken from Clean Water
Act (CWA) section 311 and CERCLA,
are proposed for addition because the
terms are used in several other NCP
definitions. . ••< -
viii, SARA, The proposed rule also
includes a definition for "SARA." the
Superfund Amendments and . • •
Reauthorizatioo Act of 1986. This is the
law that, among other-things, amended
CERCLA. One significant component of
SARA is Title HI, a free-standing section
on emergency planning and community
right-to-know. Regulations implementing
Title ID are codified at 40 CFR
Subchapter L and referred to in Subpart
C of the proposed NCP.
be State. EPA is proposing to add a
definition of "State" that includes
"Indian Tribes." Except for purposes of
SARA Title ffl or where specifically
noted in the NCP, Indian Tribes may be
treated in the same manner as States.
EPA proposes to include Indian Tribes
in the definition of State so that the term
does not have to be repeated in every
place that "State" appears. Section
300.515 describes in more detail
requirements for Indian Tribes.
x. 7>eota>enf technology. The term
"treatment technology" is-also being
added as a new definition for
informational purposes. The term is
used often in EPA communications and
has become a central consideration in
the remedial selection process. It has a
precise meaning, which EPA believes
should be included in the NCP.
5. Deletion of definitions. The
definition of "Federally permitted -
release" is proposed to be deleted
because it is no longer used in the NCP.
To avoid confusion with other plans, the
term "Plan" is no longer used to mean
the NCP in the proposed rule. The
definition of "Plan" is proposed to be
deleted. The term "quality assurance/
project plan" is proposed to replace
"Site Quality Assurance and Sampling
Plan."
C. Point of Clarification
The NCP includes within the terms
"discharge" and "release," threats of
discharge and threats of release. Thus,
the phrases "threat of discharge" and
"threat of release" have generally been
deleted from the current rule where they
appear with the terms "discharge" and
"release," except when they are part of
a statutory definition. To clarify this,
EPA proposes to add the definition
"threat of discharge or release" with
cross-references to "discharge" and
"release."
Subpart B—Responsibility and
Organization for Response
Proposed Subpart B describes the
responsibilities of Federal agencies for
response and preparedness planning
and describes the organizational
structure within which response takes
place. It lists the Federal participants in
the response organization, their • ;
responsibilities for preparedness •
planning and response, and the means
by which State and local governments, •
Indian Tribes, and volunteers may
participate in preparedness and -
response activities. The term "Federal
agencies" is meant to include the
various departments and agencies :
withai the Executive Branch of the :
Federal government
A. Major Revisions
No major substantive changes are
proposed for this subpart EPA is
proposing, however, a major' •. ;
reorganization of Subpart B. The most
significant element of this
reorganization is that EPA proposes to
combine existing Subparts B and C.
Furthermore, EPA proposes to change
the sequence in which information from
current Subparts B and C is presented.
The proposed revisions present key
information in a logical sequence of
response-oriented activities from
preparedness planning through response
operations. The overall National
Response Team (NRT), Regional
Response Team (RRT), and OSC/RPM
organization is introduced at the
beginning, and the discussion of
activities that have to be completed
before and during response operations is
integrated with a discussion of the role
and responsibility of each of these major
entities in the Federal response
organization. Qualifications, exceptions,
and caveats are generally described
after the main or usual course of action.
The listing of the capabilities of Federal
agencies with respect to preparedness - •
planning and response now follows the
sections related to response operations.
B. Other Revisions
1. Reorganization overview of existing
Subparts B and C. EPA proposes to
combine existing Subparts B and C and
reorganize the existing language (with .
minor revisions) in the following order:
L Identification of the NRT/RRT/
OSC/RPM organizational system
(§ 300.105);
ii. Roles and responsibilities of the
NRT and RRT (§ I 300.110 and 300.115)
and OSC/RPM (5 300.120), and activities
that must be accomplished prior to a '
response; • 'i
iii. Notification and communication of
threats or incidents (§ 300.125); v -
iv. Determination that a response is
needed, including discussion of separate
authorities of the Clean Water Act and
CERCLA {§ 300.130); ' '
v. Response operations—organized
around OSC/RPM activities (§ 300.135);
vi. Other response-related topics such
as multi-regional response, special .
teams, and documentation and cost
recovery (| § 300.140 through 300.165);
vfL Federal agency participation
(8 300.170) and Federal capabilities and
expertise of NRT member agencies that
might be required or useful in certain
preparedness planning and responses
(§ 300.175); and ...
viiL Information on State and local'
governments, Indian Tribes, and
volunteer participation in and
coordination with Federal preparedness
planning and response (§ § 300.180 and
300.185).
In general, very little existing NCP
language is proposed to be deleted.
Deletions are proposed only when, in
the proposed new sequence, it would be
clearly repetitive and not necessary to
assure that key ideas are highlighted in
frequently used sections. New
introductory language has been added in
some sections and new headings ,
indicate more clearly the contents of
each section. -
Several cross-references to other
sections of the NCP have been added.
For example, Community Relations
Plans are referred to in this proposed
subpart under Public Information to
remind the reader of the existence of
community relations requirements and
the need for coordination where such
plans are in effect. • - • -
EPA proposes to change or add ~
language in several places to make -•
clearer the parallels between NRT and
RRT responsibilities and activities and
to highlight the complementary nature of
the RRT-OSC relationship. For example.
the discussion of the OSC's
responsibility for "OSC contingency
plans" (proposed in Subpart C as the •
new name for plans formerly called ~ •<•
"Federal local plans") complements the
discussion of the RRT members'
responsibility to participate in such
planning. Language is also proposed in
several places to reflect the current
responsibilities or activities (e.g., RRT
work planning) that are needed and
being performed, but that are not
identified in the current NCP.
2. Executive Order 12580. The 1986
CERCLA amendments and E.0.12580
(52 FR 2923, January 29.1987) have
-------
Federal Register / Vol. 63. No. 245 / Wednesday, December 21, 1988 / Proposed Rules 51401
expanded the responsibilities of Federal
agencies for facilities and vessels under
their jurisdiction, custody, or control.
EPA notes that the language proposed
throughout this subpart is intended to be
generally applicable to all Federal
OSCs/RPMs.
3. Indian Tribes. Proposed new
language in various sections of this
subpart introduces Indian Tribal
government representation in the NRT/
RRT system. The 1986 CERCLA
amendments establish that Indian
Tribes are to play essentially the same
role as States for the purposes of the
Superfund program. Although not
explicit in the current NCP, provision .
had previously been made for Indian
Tribes to participate in RRTs when
Indian Tribes so request Indian Tribes
are now proposed to be included hi the
definition of State in Subpart A, so they
are specifically mentioned in Subpart B
only when the role of responsibilities of
Indian Tribes needs separate
explanation.
4. Title III. New references are
proposed to be incorporated throughout
the proposed subpart relating to review
of State and local emergency
preparedness planning required by
SARA Title IE. The emergency
preparedness planning activities
discussed in this subpart are carried out
under the authority of Title HI, not
CERCLA.
5. Incident-specific response teams
(§300.11S(j)). EPA proposes this
paragraph to notify RRT members of key
information relating to a release when
full RRT activation is not warranted.
Without systematic transfer of correct
information, RRT members may receive
only partial or erroneous information
from second-hand sources as to effects
on people or natural resources from a
release. Systematic means of
notification should be covered hi
Regional Contingency Plans (RCPs) so
the OSC/RPM is not distracted from
managing the response by the need to
maintain frequent contact with RRT
members. EPA notes that numerous
communications techniques and tools
are becoming more readily available to
RRT members. For example, electronic
bulletin boards and conference call
systems have been used successfully.
6. On-tcene coordinators and
remedial project manager* (§ 9O0.12O).
The first paragraph of proposed
1300.120, aeU forth all OSC/RPM
responsibilities and activities Bp to the
time of an actual response. EPA
proposes this language to replace
existing if 300.32(c) and 300.33(a) with
the items of responsibility or activity in
a slightly different order, stating first the
basic OSC responsibility—that the OSC
k to be in charge of the response, ft is in
light of thk responsibility that me OSC
•odertakn the other preparedness and
planning duties and the OSC's related
activities with RRT Member
representatives. Where appropriate,
there is parallel language for RPMs
regarding remedial response.
IB addition to remedial action
responsibilities, sot RPM may have
removal authority responsibilities it
during the remedial process, a release is
discovered that will threaten public
health or the environment within a
tiraeframe shorter than that in which the
remedial program can respond and it is
more efficient for the RPM to conduct
the action. Because of this overlap in
OSC and RPM responsibilities, the term
"OSC/RPM" is proposed to be used in
the NCP. where appropriate, to describe
responsibilities that may belong to
either an OSC or an RPM, depending on
' the particular circumstances of the
release.
Additionally, EPA is proposing to use
the terms OSC and RPM to apply to
State representatives overseeing State-
lead response actions. Therefore,
changes are proposed in this section, as
well as elsewhere in the NCP. to
accurately reflect this approach.
The SMOA, a cooperative agreement,
or another agreement, such as an
agreement between EPA and another
Federal agency or between another
Federal agency and a State, may
provide for the establishment of a
support agency at a response action. To
clarify the response structure and die
interaction of the support agency and
the OSC/RPM. a description of
responsibilities of a support agency
coordinator (SAC) is proposed to be
added to { 300.120{f). There may be a
support agency and a SAC at a site only
if specified in an agreement with die
lead agency. Generally, a support
agency will not be designated for
response* to oil discharges or
emergency releases of hazardous
substances. If a support agency is
designated in such an agreement, the
support agency may designate a SAC to
be the prime representative of that
agency and responsible for interacting
and coordinating with the OSC/RPM.
The purpose of designating a SAC k to
provide a specific person in the support
agency to assist die OSC/RPM as
requested. In particular, the SAC is
responsible for providing and reviewing
data and documents as requested by the
OSC/RPM during die planning, design.
and response activities.
Changes are proposed for 130ai20(e)
regarding RPM responsibilities,
currently | 300.33(bX14). to reflect
changes in Federal agency
responcibilnie* due to the CERCLA
amendments and E.0. 12580. For
example, a new paragraph, non-Fund-
««»««»«< Federal-kad, was added to
cover sites at which a Federal agency
other than EPA or the USCG (primarily
DOD and DOE) has the lead
7. Notification and comntanlcation$
(§ 300.125). EPA proposes to add the
word "notification" to the title of
existing § 300.30, and to move it to a
new location. In EPA's proposed
revisions, notification starts the
communications process, followed by
the determination of whether to initiate
a Federal response. This section has
been moved to more accurately reflect
fta place in the response sequence. Both
the title and the location change better
reflect the importance of the National
Response Center in the NRT/RRT/OSC/
RPM system.
EPA reiterates that statutory and
regulatory reporting requirements are
still keyed to discharges of oil and
releases of hazardous substances
exceeding a reportable quantity (ROJ.
EPA is aware, however, that many
notifiers do not have the training or
knowledge to determine if there is an
RQ of a substance involved in a release.
Therefore, whenever there is any doubt
about whether a release exceeds an RQ,
EPA encourages that the release be
reported to the NRG. Reporting ensures
positive referral of every incident to
each Federal agency with jurisdiction
and/or regulatory interest.
The NRC is tasked with processing aD
reports regardless of the material
involved or the reported significance of
the incident All reports are passed
immediately by telephone to the proper
Federal response entity and recorded in
the NRC data. base at the time of receipt
Public, government, industry, or
academic requests for access to stored
data may be made through a written
Freedom of Information Act request to
the Chief. National Response Center, -
2100 Second Street. NW., Room 2611,
Washington. DC 20593. See i 300.405,
"Discovery or Notification." and related
preamble discussion.
6. Determination* to initiate response
and special conditions (§ 9OO.130). EPA
jropoaes to consolidate in i 900.130
mguage currently in several places in
the NCP. The section addresses the
initiation of a Federal response,
provides a basic statement about
response management responsibilities of
the co-chair agencies (whether under the
CWA or CERCLA}, discusses the special
authorities and circumstances that may
affect me initiation of a response, and
-contains crow-reference* to the
relationship of the NCP to other kinds of
-------
51402 Federal Register / Vol. S3. No. 245 / Wednesday. December 21, 1988 / Proposed Rules
Federal response authorities (e.g.,
natural disasters). Also, for example,
{ 300.130{f) refers to the Federal
Radiological Emergency Response Plan
(FRERP) when a discharge or release
involves radioactive materials. When
EPA is required to respond under the
FRERP, it will do so in accordance with
the provisions of the U.S. EPA .
Radiological Emergency Response Plan.
(See EPA Report No. 520/1-81-002,
December 1986.)
9. Response operations (§ 300.135).
EPA proposes to relocate existing
i 300.33, to introduce it with language
currently contained in § 300.33(b), and to
keep the language that follows it
virtually unchanged. EPA also proposes
to relocate the language describing the
way OSC jurisdiction is determined
from current $ 300,33(a) to new
{ 300.120. This section describes the
OSC/RPM components of the NRT/
RRT/OSC/RPM system.
10. Special teams and other
assistance available to OSCs/RPMs
(§300.145). EPA proposes changes to
existing { 300.34 to combine information
currently in two separate paragraphs
about special technical resources
available to OSCs/RPMs (e.g., on
marine salvage) and to delete
information no longer applicable (dive
teams and Spill Cleanup Inventory
System).
11. Worker health and safety
(§ 300.150). EPA proposes to make
several revisions to existing { 300.38 to
bring it up to date with CERCLA and
other changes in applicable regulations
and policy developed since the last
revision of the NCP.
12. Public information (§300.155). The
title of this section has been changed to
"Public Information and Community
Relations" to indicate that obligations in
this area extend beyond merely
informing the public.
13. Documentation and cost recovery
(§ 3OO.J60(d)). Section 300.160(d) is a
proposed new section of the NCP added
in response to changes made by the 1986
amendments to CERCLA. Section
107(a)(4)(D) of CERCLA establishes that
the responsible parties are liable for
"* * * the costs of any health
assessment or health effects study
carried out under section 104(i)." This
new section of the NCP responds to the
statutory requirement by providing for
the development of documentation to
assure that these costs will be •
recoverable from responsible parties at
CERCLA sites. The responsible parties
are liable under section 104(i) of
CERCLA for the costs of:
i. A health assessment for each
facility on the National Priorities List
(NPL):
it Health assessments for releases or
facilities where individual persons or
licensed physicians provide information
that individuals have been exposed to a
hazardous substance, for which the
probable source of such an exposure is a
release;
lii. Pilot studies of health effects for
•elected groups of exposed individuals,
where such studies are deemed
appropriate by the Administrator of the
Agency for Toxic Substances and
Disease Registry (ATSOR) on the basis
of a health assessment;
iv. Full-scale epidemiologies! or other
health studies as may be necessary to
determine the health effects on a
population exposed to a hazardous
substance from a release or threatened
release, where deemed appropriate by
the Administrator of ATSDR on the
basis of a pilot study or other study or
health assessment;
v. Establishing a registry of exposed
persons;
vi. Population health surveillance
programs for exposed populations; and
vii. Steps necessary to reduce
exposure and eliminate or substantially
mitigate the significant risk to human
health, including but not limited to
provision of alternative water supplies
and permanent or temporary relocation
of individuals.
In addition, section 104(i)(5) of
CERCLA authorizes health effects
research addressing inadequacies in the
existing health risk information on
substances frequently found at CERCLA
sites.
This research is based on the data
inadequacies identified in the
lexicological profiles on the substances
selected under section 104(i)(2)(A).
These substances are selected for their
potential human health risk in terms of
(1) chemical toxicity, (2) frequency-of-
occurrence at NPL sites, and (3)
potential for human exposure. This
research reduces the inadequacies in the
existing health effect data base by
further determining the health effects of
these substances or by developing the
techniques and methods to further such
determination. A more complete data
base on these substances' health effects
will allow EPA to estimate better the
health risks at NPL sites.
To minimize duplication of health
effects research across the various
government programs, and to minimize
unnecessary cost recovery actions,
whenever possible, EPA and ATSDR
will coordinate the research programs
under the Toxic Substances Control Act
(TSCA). the Federal Insecticide,
Fungicide, and Rodentidde Act (FIFRA).
and the National Toxicology Program
(NTP) to HI! the data inadequacies
identified in the lexicological profiles. '
This position is consistent with CERCLA
section lM(i)(5)(D) which states:
It is the sense of the Congre** that the
costs of research programs under this
paragraph be borne by the manufacturers and
processor* of the hazardous substance in
question, as required in programs of
tcodcological testing under the Toxic
Substances Control Act Within 1 year after
flie enactment of the Superfund Amendment!
•nd Reauthorization Act of 1980, the
Administrator of EPA shall promulgate
regulations which provide, where
appropriate, for payment of such costs by
manufacturers and processor* under the
Toxic Substance* Control Act. mnd
registrant* under the Federal Insecticide.
Fungicide, and Rodentidde Act, and recovery
of such co*t* from responsible parties under
thitAcL
In many cases, the cost of research
conducted under these programs is
already borne by the manufacturers, the
processors, and the registrants of the
substances as intended by the Congress.
The existing regulations under TSCA
and FIFRA allow EPA to pass the major
portion of the research costs to them.
For example, 40 CFR Part 716 requires
submission of health and safety studies
on chemical substances selected for
priority consideration for testing rules
under section 4(a) of TSCA. Under 40
CFR Part 158, manufacturers and
processors of pesticides are required to
provide health and environmental risk
information on pesticides for which
registration is sought.
Where costs are incurred that are not
otherwise borne by manufacturers,
processors, or registrants, any agency
conducting health effects research
initiated by the Administrator of
ATSDR, under the authority of CERCLA
section 104(i), should maintain complete
documentation of the expenditures
related to this research and submit these
documents to EPA for cost recovery
actions.
14. OSC reports (§300.165). EPA
proposes to leave current { 300.40
largely unchanged, except for an
increase in the time for submitting OSC
reports from 60 to 90 days. This change
is viewed as giving the OSC a more
realistic amount of time in light of the
OSC'* many other responsibilities. EPA
expects that, wherever possible, all or
parts of reports prepared to meet other
requirements can be used with little or
no revision to meet review needs of the
RRTs and the NRT. An OSC report's
recommendations may be a source for
new procedures and policy.
15. Federal agency capabilities
(§§300.170 and 300.175). EPA is
proposing that the description of the
capabilities of Federal agencies with
-------
Federal Register / VoL 53, No. 245 / Wednesday. December 21. 1988 / Pioposed Rides
51403,
respect to response (currently J 300.23}
be reorganized to highlight the,
leadership roles of EPA and the USCG..
EPA also proposes to amend the
regulation to refer to EPA/a legal
expertise in interpreting CERCLA and"
other environmental taws. Additionallyt
EPA is. proposing to revise and update
the descriptions of some of the other
agencies' capabilities and expertise
related to preparedness planning and
response. Furthermore., EPA Is adding a.
paragraph, describing the Nuclear
Regulatory- Commission's, capabilities
and expertise to re fleer the fact that die
Commission wax recently added to the
NRT membership ron". It should be noted
that the purpose of these section* & to
discuss the special capabilities agencies
have and the assistance they cart render
during'any response action. These
sections are not intended to specffrcalrjr
address- Federal facilities.
16. Nongovernmental'participation
(§ 300:185}. Thnr section deafe. wflh the
use of volunteers or Superfund response
actions. Use of" volunteers- maybe-
appropriate when it can be done in a
safe and wefl-organized way. Key to the
use of volunteers- is- capable leadership
on the part of knowledgeable officiate
and areas of work that are suitable- to-
these individuals. Prier to-thease of
volunteers* appropriate consideration
must be'given to.- the issue- of liability tor
volunteer action, with regard to its effect
on both the lead: agency and oa the
volunteers, thamsehwx,
17. National System fear Emergency
C.nnrrlmrrtim In Jgnntx-ytOflft tie:
President approved the. National System.
for Emergency Coordination (NSEC).
The NSEC is. a mechanism: far assuring;
that the Federal government provides
assistance to State and local;
governments' ia-, "extreme catastrophic
technological,, natural, or other domestic
disasters, of national significance." The
President may activate the NSEC in. the
event of a catastrophic environmental
incident. As additional information
regarding the knplexnenUtion o£ NSEC
becomes available.it may be necessary
to make additional: revisions to the NCP-
Subpart C—Pfanning-and Preparedness
Proposed Subpart C revises current
Subpart D and provides an extensive
cross-reference to SARA Title III (.the
"Emergency Planning and Community
Righl-to-Knaw Act of 1386,"). and its
regulations at 40 CER Subchapter L
A. Major Re visions
1. SARA Title UL rfistoricairy..the
NCP has provided for Federal planning
and coordination entities and for
Federal contingency plans. Although
there has previously been no Federal
requirement foi State and local
planning, the NCP has. always, provided
for coordinatioa w&h such entities and
plans where, they exist. SARA Title ffl,.
however, now requires, development of a
State and local planning structure and
local emergency response plans.
Title IH provides the mechanism, for
citizen, aod local government access to
information, concerning pntpntinr
chemical tazardsj present Ln, thejf
communities- Thia iafarmatiaii: includes
requirements for the, submission of
material safety data sheela and!
emergency, yt harmxjtongi^p«»ir.AT
inventory forms, to Stale, and! local
governments,, and fas tt»p «nhmi««iinn of
trnein rhfnf^T rpTpajlP farms, to the
States and EPA. Title m alsa contains
general provisdoaa coacerniag.
emergency training, review of
emergency systems., trade secret
protection, providing, information, ta
health professionals, pubic availability
of information* pntnmomgnt, and? citizen.
suits. Regulations implementing. Title ffl
are codified at4& CFR Subchapter J.
EPA wall refenence Title- IH and these
regulations in Subpart C where
appropriate.
Z. OSCcontingency plans* The name
and contents of "Federal local plans."
have been modified. EPA proposes to
use the new name **OSC contingency
plans" to replace the-name "Federal
local plan'r in order to. remove ambiguity
in the phrase "Federal local" and
because the OSC irresponsible for
developing, these pLansI Changps also
have been made ta describe better what
these plans are and to identify how they
are different from, and linked to the
"emergency plans.'r required by section.
303 of SARA,
B. Pouit of Clarification
Title ni definitions of facility and
release. Title Iff and CERCLA provide
slightly differing definitions of the terms
"facility" and "release." Affected parties
should carefully note these differences
and their applicability, to requirements
m Title Iff and CERCLA
Subpart Ek—Operational Response
Phase* for Gt't Removal
Proposed' Subpart D contains only
minor revisions, to current Suhpart E.
Proposed 5 300.30Q(b] includes a
reference to the EPA Regional1
emergency response telephone number.
Another modification to £ 300-300(b). and
the addition of E 300.300[c][ have been
proposed to clarify that in the case of
required reports of oil discharges* made
by the. person in charge of a. vessel or
facility, reports must he made to the
National Response Center (NRCLIn
other cases., reporting ta theNRCis.
encouraged but not mandatory (this,
section i* consistent with the ckang as, ta
the counterpart section: ia Subpart E.
"Discovery crNotifkation" [§ 300.405^.
Proposed i 30a305(d) clarifies, the
requirement £01 OSC notification- of
natural resource trustees- and makes it
consistent with the wording ia $ 30QAUk
Proposed { 30031%) reqoire» that .
applicable or relevant aad appropriate
requirement be met ia tha disposal- el
materials, recovered ia cleanup
operations. FiaaMyi proposed
5 3(».320(b}£41 describes, appropriate
responses, for medi«m- aod major etil
discharges, which, are-, described
separately in existing; }§. 30053^(4).]
Sadpart E— Hazardous Sbbstaace
Response
The Hazardous Substanc
subpart contains a detailed plan
covering the. entire range, of
activities involved in aba ting: and
remedying- releases or threats of
releases of hazardous: substances;
pollutants; ojrconiamiHants.EPAist
proposing major re visions) ux the
hazardcau substance response
authorities, included ia the NCP. The
revisions incorporate amendments' to
CERCLA and reorganize the sections of
the subpart ta coincide- with the- general
order of established; procedures during1
response,
Specifically, EPA i* proposal; ta
expand current $ 300.62 on the State rote
into a separate subpart (new StobpartF^
which incorporates! the new State
involvement regulations, andi to move
the- entire discussion to- appear after the
Hazardous- Substance- Response'
subpart — today proposed to-be
redesigns ted as "Subpart E:" EPA also-
proposes to- revise and1 reformat current
5 300.67 on- community relations so- that
it is no- longer a separate section but is-
incorporated into the other sections as
appropriate-. Furthermore,. EPA is-
proposing to rename and reorganize the
sections far Subpart E a* follows:
{ 300.400 General.
{ 300.4O3 Discovery or notification.
{ 300.410 Removal cite evaluation.
§ 300.415 Removal action.
S 300.420 Remedial lite- CTttlna troit
{ 300.425 Establishing- remedial prioritiei.
(300.430 Remedial mve«tigatKm/f«««lbiEty-
study (Rl/FS) and (ejection of remedy*
5 300.435 P««n
-------
51404 Federal Register / Vol. S3. No. 245 / Wednesday. December 21. 1988 / Proposed Rules
pollutants, or contaminants. The
framework outlined in the 1882 NCP and
refined in the 1985 NCP and in this
proposed revision to the NCP
establishes general procedures for
discovery or notification, response, and
remediation of releases that pose a
threat to human health and the
environment. EPA's primary
consideration in CERCLA response
actions is that remedies be protective of
human health and the environment The
variety of releases and threats
encountered, however, makes it
necessary that specific response actions
and cleanup levels be determined on a
site-by-site basis. Therefore, the .
function of the NCP is to delineate how
such site-specific decisions on response
actions will be made.
CERCLA authorizes EPA to
administer response actions in several
ways:
i. EPA can take direct action using
Fund monies;
ii. Under EPA oversight responsible
parties can undertake a response action
as a result of EPA's enforcement
authorities; and
iii. States can undertake a response
action using CERCLA monies pursuant
to a cooperative agreement with EPA.
1. Discovery or notification. The first
step in the response process occurs
when there is discovery or notification
of a release (the definition of "release"
in Subpart A includes threat of release).
This discovery or notification occurs in
the various ways described in S 300.405.
As described in that section, notice of a
release is typically directed to the
National Response Center. Once Federal
officials are aware of a release, there
are two types of responses: Removal or
remedial. Before any response action is
taken, however, the conditions and
problems at the site must be evaluated.
2. Site evaluation. When notice of a
release is received, EPA will consider
the reported facts and circumstances to
determine whether a removal or a
remedial site evaluation should be
undertaken.
The main differences between
removal and remedial site evaluations
are their respective purposes and the
amount of time available for conducting
the evaluation before an action must
begin. When a lead agency conduct* a
removal site evaluation, the agency
usually has some reason to believe that
a prompt action may be needed. If there
is any indication that there may be an
emergency or other time-critical
situation, the release is evaluated for
possible removal action. The same is
generally not true with remedial site
evaluations because the primary
purpose of a remedial site evaluation is
to assisfin determining whether a
release should be included on the
National Priorities List (NPL). (See
S 300.425(b); urgent situations do not
allow for developing the more
comprehensive data required in
remedial site evaluations to score the
site for the NPL)
It should be noted, however, that
removal and remedial site evaluations
overlap. Information gathered during a
remedial site evaluation may indicate
that the contamination or one portion of
the contamination at a site should be
addressed by the removal program or
information gathered during a removal
site evaluation may indicate that the
contamination at a site can be better
addressed by the remedial program. The
important point is that when the lead
agency receives notification of a release,
it makes a quick determination as to
whether the site seems to be a likely
candidate for removal action. If the
release does not immediately seem to be
a likely candidate for removal, then the
release is listed on CERCLJS for a
remedial site evaluation to be conducted
in the future.
Because of the pressing nature of
removal response, a removal PA/SI is
characterized by a quick assessment.
When the OSC is responding to an
explosion or transportation spill, a
removal site evaluation may involve
only an on-site assessment. Where more
time is available (for a non-time-critical
removal), a removal site evaluation may
involve a review of any existing
information available on the release
plus an on-site evaluation, including
sampling. During these evaluations, the
lead agency generally reviews
conditions of a release to see whether
the release is from a discrete source.
Due to the limitations on removal
actions, the removal program is
generally unable to address large areas
of contamination, i.e.. where there is not
an identifiable discrete source. For
example, the lead agency may look for
unstabilized tanks, drums, lagoons, or a
small area of highly contaminated soil in
evaluating the urgency of the release.
Section 300.410 describes in more detail
the removal site evaluation, including
when it is terminated. The criteria for
removal actions described in
{ 300.415(b)(2) are used in the removal
site evaluation to determine whether a
removal action may be appropriate.
Remedial PA» and Sis are more
comprehensive and structured because
there is not the same time constraint as
there is for removal PA/SIs. A remedial
PA will consist of a review of existing
information and may include on-site or
off-site reconnaissance where safe and
appropriate. After the PA is complete.
the lead agency will prepare a report
that describe* the characteristics of the
release and recommends whether
further remedial evaluation is
warranted. At sites where further action
is indicated, the lead agency will
conduct an SI that will build on the
information collected in the remedial PA
and involve, a* required, on-site and off-
site Meld investigations and sampling.
Data gathered during the remedial PA/
SI are used to evaluate the release using
the Hazard Ranking System (HRS) to
determine whether the site should be
listed on the NPL. For more discussion
on remedial site evaluation tee the
preamble section below,"( 300.420—
Remedial Site Evaluation." For more
discussion on the NPL, see the preamble
section below, "J 300.425—Establishing
Remedial Priorities."
3. Removal actions. After conducting
the removal site evaluation (or, as
appropriate, during a remedial activity)
the factors described in S 300.415(b)(2)
are considered in determining whether
or not a removal action is appropriate. If
the lead agency determines, upon
consideration of such factors, that a
removal action is appropriate, actions
shall begin as soon as possible to
prevent minimize, or mitigate the threat
to human health and the environment
(Section 300.415(d) describes the types
of measures that may be taken.)
CERCLA requires the termination of
Fund-financed removal actions after 12
months have elapsed from the date of
the initial response or after $2 million
has been obligated unless statutory
exemptions apply.
EPA has conducted removal actions in
response to a wide range of situations
including, "midnight dumping" and other
illegal disposal releases from active
manufacturing or waste disposal
facilities, and transportation-related
incidents. In addition, removal actions
may be conducted in response to a time-
critical situation at a remedial response
site. For example, a removal action may
be required to stabilize an NPL site
before remedial response activities can
begin, or a removal action may be
necessary in response to a sudden
dangerous situation such as a fire or
explosion that occurs during a long-term
remedial response.
In situations involving immediate
threats, it is not difficult to determine
that use of removal authorities is
appropriate. In less obvious situations,
however, the lead agency must rely on
the best technical Judgment of its
response personnel to determine
whether use of removal authority or
remedial authority is more appropriate
to address the identified threats. On-
-------
Federal Register / Vol. S3. No. 245 / Wednesday, December 21. 1988 / Proposed Rules 51405
scene coordinators and remedial project
managers are charged with using all the
information available to them at the
time to determine how quickly a
response must be initiated and,
therefore, which response authorities
are appropriate.
Notwithstanding the discussion of
lead and support agency conduct of
removals, potentially responsible parties
may undertake these activities under
EPA oversight as a result of EPA's
enforcement authorities.
4. Remedial response—i. Remedial
investigation/feasibility study and
selection of remedy. The lead agency
generally will conduct a remedial
investigation (RI) and feasibility study
[FS) (although actions may be initiated
at any time prior to, during, or after the
RI/FS when there is a need or
opportunity to reduce or control risk or
prevent further environmental
degradation). The purpose of the RI is to
gather sufficient data to characterize the
conditions at the site in order to assist in
determining the appropriate action. The
RI should be focused so that only data
needed to develop and evaluate
alternatives and to support design are
collected. Nonetheless, because of the
complexity of the problems, it can take
many months of investigatory and
sampling work to characterize properly
the pathways of exposure to the
surrounding population, the hazardous
substances that are present at the site,
the concentrations of these substances
in various areas of the site, and other
conditions that must be understood
before the best remedy can foe selected
for that site.
As the problems at a site are
beginning to be understood, a feasibility
study is conducted. The purpose of the
FS is to develop and analyze
alternatives for appropriate action. The
level and detail of the analysis will be
tailored to the scope and complexity of
the action needed. As the impacts of
these alternatives and other factors are
considered, the number of alternatives is
reduced. A remedy is selected in a
Record of Decision based on these
studies. The proposed regulation and
preamble for 5 300.430 explain in detail
the RI/FS and selection of remedy
process; therefore details of the process
will not be repeated here.
ii. Remedial design/remedial action
and operation and maintenance. After
an RI/FS has been completed and a
remedy has been selected, the lead
agency designs the remedy. The
remedial design stage includes
developing the actual plans and
specifications for the selected remedy.
When this is completed, the lead agency
conducts and completes the remedial
action. After a joint inspection of the
remedy following the completion of
construction, the State or other
appropriate party (e.g., a Federal
facility) will generally assume
responsibility for ensuring that the
remedy is operational and functional.
After die lead and support agencies
have determined that the remedy is
operational and functional, the State or
other appropriate party is responsible
for operating and maintaining die site as
needed. Section 300.435 describes
remedial design/remedial action (RD/
RA) and operation and maintenance
(O&M) activities.
Notwithstanding die discussion of
lead and support agency conduct of RI/
FSs, RD/RAs, and O&M* potentially
responsible parties (PRPs) can
undertake these activities as a result of
EPA's enforcement authorities.
5. Relationship between removal and
remedial activities. It is important to
note that response to releases of
' hazardous substances does not follow a
straight sequential path from discovery
through removal to remedial action.
Although die NCP sections on removal
site evaluation and removal actions
come before die remedial site evaluation
and other remedial sections, in reality, a
decision to conduct a removal may be
made at any time in die remedial
process, and sites initially evaluated or
addressed by die removal program may
be referred to die remedial program.
Thus die need for removal is considered
during a remedial PA, a remedial SI, RI/
FS, and actual remedial action. If a
removal action does not fully address
die tiureat posed by a release, die lead
agency will ensure an orderly transition
from removal to remedial response
activities. The removal program is
intended to address releases that pose a
relatively near-term threat that can be
addressed within the statutory limits.
The remedial program is intended to
address significant releases that cannot
be addressed under the removal
program. There will always be some
overlap between the two programs, and
it is important that they work closely
together. The goal is to ensure that die
most significant threats are addressed in
die most efficient and effective manner.
6. State participation. State
participation is critical to tile response
program. It is EPA's intention tiiat die
States and EPA function as partners,
and States are encouraged to participate
in all facets of die response process:
Removal, pre-remediaX remedial, and
enforcement EPA proposes to use
general agreements called Superfund
Memoranda of Agreement (SMOA) to
delineate non site-specific Federal/State
interactions and responsibilities. Site-
specific State-lead actions are
undertaken via cooperative agreements
between die State and die EPA Region.
For more information on State
involvement see proposed Subpart F of
die NCP.
7. Public participation. tERCLA
requires die opportunity for
participation of die public and of PRPs
in the remedy selection process and die
development of die administrative
record supporting die remedy selected
(see Subpart I). The NCP discusses die
opportunities for public and PRP
participation, including comment
periods, public meetings, and formal
community relations plans specifying
interactions at each remedial action site.
In enforcement actions, there will be
comment periods for consent decrees
and, in die removal action process,
participation is encouraged to die extent
allowed by die exigencies of die
situation. The public participation
requirements have been incorporated
into each of die sections where they
apply (e.g. 55 300.415,300.430, and
300.435). See Subpart E, 5 300.430
preamble section below, "H. Community
Relations."
8. Federal facilities. CERCLA
emphasizes die application of the
Superfund program to Federal facilities
indicating die intent of Congress that
Federal agencies address releases from
such facilities witii attention equal to
that given by EPA to non-Federal sites.
Unless a provision specifically
addresses Fund-financed activities only.
all provisions hi Subpart E (and
throughout die NCP, as appropriate)
apply to Federal facilities.
Subpart E: Section-by-Section
A section-by-section discussion of die
proposed revisions to Subpart E follows,
in order of appearance, with two
exceptions: Community relations and
applicable or relevant and appropriate
requirements. These requirements are
described in their own separate
preamble sections because die
requirements are interspersed
throughout die Subpart E regulatory
sections.
Section 3OO.4OO General
This section revises existing NCP
{ 300.61 and contains a general
discussion of die prerequisites, methods,
criteria, and limitations of response
actions addressing hazardous substance
releases.
A. Major Revisions
1. Limitations on response
(§ 300.4OO(b)). Amendments to CERCLA
section 104(a)(3) added significant
-------
51406 Federal Register / Vol. 53. No. 245 / "Wednesday, December 21, 1988 / Proposed Rules
limitations on response authorities.
Those limitations have been
incorporated into the NCP through the
addition of new § 300.400{b). The
proposed section states that the Fund
may not be used to respond to releases
of naturally occurring substances, to
releases from products that are a part of
the structure of a building and result in
exposure within that building, or to
releases into drinking water supplies
due to deterioration of the water system
through normal use. However, there Is
an exception allowed. The Fund may be
used to respond in cases where the lead
agency determines that the release is a
public or environmental emergency and
that no other person with the authority
and capability to respond will do so in a
timely manner. EPA expects these
exceptions to be rare.
An example of the first type of
situation for which the Fund is not
available for response is found in the
Reading Prang and other areas, where
high levels of radon were discovered
inside buildings erected on naturally
radioactive formations. Examples of the
second type of situation are chemically-
treated wood or masonry materials
containing radionuclides which may be
part of the structure of a building and
result in exposure to persons in that
building. Examples of the third type of
situation are releases of lead and other
contaminants into a municipal drinking
water supply system solely from the
natural deterioration of pipes and welds
in the system.
2. Entry and access {§ 300.40O(d)).
CERCLA section 104(e)(3) allows any
officer, employee, or representative of
the President, duly designated by the
President, to have access to vessels,
facilities, establishments, or Other
places, where any hazardous substance,
pollutant or contaminant may be, or has
been released, generated, stored,
treated, disposed of, or transported from
or where access is needed to determine
the need for response or the appropriate
response or to effectuate a response
action under CERCLA. As one method
of enforcing such authority, where
consent is not forthcoming, CERCLA
section 104(e)(5] authorizes the
President to issue administrative orders
for entry and access to such property. In
E.0.12580 the President delegated this
authority to Executive departments and
agencies. To ensure full understanding
of the scope and proper utilization of
this authority, EPA proposes to include
in $ 300.400(d) the requirements for
administrative orders, the scope of
orders, the activities permitted under
orders, and certain content, delivery,
and enforcement aspects of such orders.
In accordance with CERCLA's
increased emphasis on private party
response, EPA specifies in this section
that it may designate a potentially
responsible party as EPA's •
representative solely for the purpose of
access, and that it may exercise the
authorities contained in section 104(e},
including issuing an administrative
order, to gain access for the potentially
responsible party. Such designation will
only be used where the potentially
responsible party is conducting a
response action pursuant to an
administrative order or consent decree
and the designation is in accordance
with relevant EPA policy.
3. "On-site"'forpermitting purposes
(§ 300.400(e)). Section 121 (e) of the
amended CERCLA states: "No Federal
State, or local permit shall be required
for the portion of any removal or
remedial action conducted entirely on-
site, where such remedial action is
selected and carried out in compliance
with this section." EPA proposes to state
that on-site permits are not required for
response actions taken by EPA. other
Federal agencies, States, or private
parties pursuant to CERCLA sections
104,106, or 122. For the purposes of
implementing this section, EPA has
proposed to define the term "on-site" in
S 300.400(e)(l) to include the "areal
extent of contamination and all suitable
areas in very close proximity to the
contamination necessary for
implementation of the response action."
Flexibility in defining a site is
necessary in order to provide
expeditious response to site hazards.
EPA emphasizes that the lead agency
must always comply with the
substantive requirements that would
otherwise be included in a permit and
that the NCP requires public
participation in the remedy selection
process. EPA also believes that required
approval or consultation by regulatory
bodies is analogous to permit
requirements and is encompassed
within the CERCLA section 121(e)
exemption. However, EPA intends to
consult closely with the appropriate
regulatory authority where time permits.
The definition will exempt the lead
agency only from administrative
processes. These administrative
processes could otherwise delay
implementation of a response action for
several months.
The definition of "on-site" is intended
to address the following types of
situations. First remedial actions
frequently involve treatment systems
that require significant land area for
construction. For example, an
incinerator cannot be placed on top of
contaminated soil but may require some
area adjacent lo the area of
contamination. Situations have arisen
where the contamination is in a lowland
marshy area and it is not possible to
locate an incinerator or construction
staging area in the marshy area but it is
possible to do so in an uncontaminated
upland area in very close proximity.
Moreover, the "areal extent of
contamination" is intended to include
sites where areas of contamination are
discrete rather than continuous but are
within reasonably
-------
Federal Register / Vol. 53. No. 245 / Wednesday, December 21, 1988 / Proposed Rules 51407
EPA's interpretation of "on-site"
further includes situations where the
remedial activity occurs entirely on-site
but the effects of such activity cannot be
strictly limited to the site. For example,
a direct discharge of CERCLA
wastewater would be an on-site activity
if the receiving water body is in the area
of contamination or is in very close
proximity to the site, even if the water
flows off-site.
EPA notes that section 104(d)(4) of
CERCLA allows EPA to treat non-
contiguous facilities as one where those
facilities are "reasonably related on the
basis of geography, or on the basis of
threat or potential threat to public
health or welfare or the environment"
EPA interprets this section to allow it to
elect to treat several CERCLA facilities
as one "site" for purposes of section
121(e). Under this approach, hazardous
substances from several CERCLA
facilities could be managed on-site at
one of those CERCLA facilities without
having to obtain a permit for the wastes
that are brought from the other CERCLA
facilities. Among the criteria EPA uses
to treat non-contiguous facilities as one
site are that the facilities are reasonably
close to one another and the wastes are
compatible for the selected treatment or
disposal approach. EPA solicits
comment on whether to limit this
approach to situations where the non-
contiguous facilities are under the
ownership of the same entity.
EPA is considering several other
possible ways of defining "on-site" for
permitting purposes. Each of these is
described and discussed briefly below.
i. Define "on-site" as the areal extent
of surface contamination. This concept
is similar to the RCRA concept of a
hazardous waste management area. It
would make the definition of "on-site"
more definite but would have several
problems. First, there are CERCLA sites
that have relatively minimal or no
surface contamination because the
contamination is primarily in the ground
water. This definition would mean that
in certain cases there would be little or
no area that would be considered "on-
site" and exempt from permits. Second,
this option would mean that permits
would have to be obtained in cases
where the construction or staging area
cannot be located on top of the
contamination, even if the staging areas
were in very close proximity. As
described above, these administrative
processes could delay remedial actions
at many sites even after there has been
public comment on the proposed
remedy.
ii. Define "on-site" as identical to a
CERCLA facility. The term "facility" is
defined in section 101(3) of CERCLA
(this definition is repeated in 5 300.5 of
the NCP) as "any building, structure,
installation, equipment, pipe or pipeline
(including any pipe into a sewer or
publicly owned treatment works), well,
pit, pond, lagoon, impoundment, ditch,
landfill, storage container, motor
vehicle, rolling stock, or aircraft, or any
site where a hazardous substance has
been deposited, stored, disposed of. or
placed, or otherwise come to be located;
but does not include any consumer
product in consumer use or any vessel."
Defining the term "on-site" to be the
same as "facility" probably would allow
the lead agency to follow a plume and
construct a treatment system over the
plume without obtaining a permit
because of the phrase "or any site where
a hazardous substance has been
deposited * * * or otherwise come to
be located." It would not, however,
address the concern that
noncontaminated land may be needed
as a construction staging area and may
be an integral part of the remedial
action to be taken. In addition, it should
be noted that it is often difficult to
define a CERCLA facility boundary.
When a site is listed on the NPL, an
attempt is made to describe the facility
and its boundaries. However, the extent
of contamination is not always known
at that point in the process. Later, during
the RI/FS stage, the facility boundaries
may be better defined.
iii. Define "on-site" as the facility plus
any contiguous area necessary for
carrying out the response. This would
address the problem described in
number (i) above but the requirement of
contiguity may present other problems.
For example, sometimes it may not be
possible to locate the construction
staging area directly contiguous to the
facility; perhaps there is unused railroad
property between the facility and the
proposed staging area or some other
similar obstacle.
iv. Define "on-site" as encompassing
the area having the same legal
ownership as the primary contaminated
area or areas. This definition would
limit the permit-free areas available for
" staging and implementing response
actions. Because the site would be
defined in terms that do not directly
relate to the contamination, there may
be situations where the ability to
implement a remedy expeditiously is
artificially constrained by the proximity
of the property line.
B. Other Revisions
1. Current §30O.61(b). This paragraph
has been deleted to conform with
amendments to CERCLA section
104(a)(l)(B). The former CERCLA
section 104(a)(l) and NCP authorized a
response action "unless the President
determines that such removal or
remedial action will be done properly by
the owner or operator of the
facility * * * or by any other
responsible party." The change to
CERCLA and deletion of this section
from the NCP clarify that the Federal
government is not precluded from
conducting a response action, merely
because responsible parties have
indicated a willingness to take some
form of response action.
2. Health assessments (§ 300.400(fl).
This paragraph has been added to
codify the requirements of CERCLA
section 104(i) that a health assessment
be performed by ATSDR at each site
proposed to be listed on the NPL or in
response to a petition for a health
assessment
C Points of Clarification
1. Pollutants and Contaminants.
CERCLA section 104(a)(l) authorizes
response actions whenever any
hazardous substance, including mixtures
of oil and hazardous substances, is
released or whenever there is a release
of any pollutant or contaminant that
may present an imminent and
substantial danger to the public health
or welfare. This standard is reflected in
NCP § 300.400(a). Note that under
CERCLA, "imminent and substantial
danger" limitation applies only to
pollutants and contaminants and not to
hazardous substances. Moreover, the
limitation does not define the scope of
the removal actions as described in
§ 300.415(b).
2. Response to HWTC's petition to
modify the NCP to permit treatability
testing without the need to obtain a
RCRA permit. The Hazardous Waste
Treatment Council (HWTC) has
petitioned EPA to issue regulations
facilitating small-scale treatability
studies on wastes at Superfund sites
that contain or may contain RCRA
hazardous wastes by exempting owners
or operators of facilities conducting such
tests from RCRA requirements that
would otherwise apply to facilities
treating, storing, and disposing of
hazardous wastes. HWTC has
submitted two petitions for regulatory
action. One seeks a regulation under
RCRA that would generally exempt such
studies from regulation under RCRA
when conducted within certain limits of
study size, storage volume, etc. The
second petition is directed more
specifically at treatability studies
conducted to support decisionmaking at
CERCLA sites. It seeks to exempt
treatability studies conducted to support
remedy decisions at CERCLA sites from
-------
51408 Federal Register / Vol. 53, No. 245 / Wednesday, December 21. 1988 / Proposed Rules
permitting requirements by defining the
facilities at which tree lability studies
are conducted as being "on-site." As
discussed elsewhere, activities
conducted "on-site" are exempted from
the need to obtain permits. Such a
definition, therefore, would exempt
those conducting treatability studies
from any permitting requirements and
would not be limited to the need to
obtain a RCRA permit EPA is
separately considering HWTCs petition
for rulemaking under RCRA. (See 52 FR
35279, September 18,1987.) Only the
second petition, under which treatability
tests on wastes from CERCLA sites
wotdd be exempted from permitting by
defining them as occurring "on-atte," is
considered here.
Treatability tests are an important
part of the RI/FS process as well as
other waste management processes.
EPA has concluded, however, that to the
extent it is appropriate to adjust
permitting requirements to encourage
treatability testing, that •should be
accomplished by directly modifying the
RCRA regulations to address •such
testing generally. EPA does not believe
that the term "on-site" can extend to a
distant facility that may be conducting a
treatability test. For these reasons, EPA
is not proposing in today's notice to
extend the definition of the term "on-
site" to include fadiftie* conducting
treatabiiity tests characterizing wastes
from CERCLA sites as contemplated by
HWTCs petition, instead EPA will
consider the merits of HWTCs position
in the context of HWTCs petition for
rulemaking under RCRA.
Section 3O0.405 Discovery or
Notification.
This section revises current NCP
§ 300.63 and discusses how CERCLA
sites may be discovered, the notification
responsibility to report releases of
hazardous substances, pollutants, or
contaminants to the National Response
Center (NRG), and the details of the
notification process. There are no major
revisions.
Revisions
1. Discovery of release (§ 300.4O5(a)}.
EPA is proposing two minor clarifying
changes to current § 300.63(a) on how
releases are discovered. First,
notification under section 103(a] of
CERCLA (notification of releases of
reportable quantities) and under section
103(c) of CERCLA (owners and
operator's notification to EPA of the
existence of a facility at which
hazardous substances are or have been
stored, treated or disposed of) have
been separated into (1) and (2).
Second, EPA is proposing to add to
the list of discovery methods a new
method for discovering releases. This
revision is intended to reflect the fact
that the new statutory provision
allowing citizen petitions for preliminary
assessments also represents a new
method for discovering a release.
2. Notification requirements (§300.405
(b). (c) and(d)). EPA is proposing a
minor clarifying change to the
notification requirements in f 300.63(b)
to state that where direct reporting to -
the NRG is not practicable, reports may
be made to the predesignated EPA OSC
through the Regional 24-hour emergency
response telephone number. This
wording was added to alert the public
that such numbers exist, but should be
used only in the very rare cases where
the NRC cannot be reached (for
example, because a caller cannot get
through to the NRC). EPA strongly urges
that aU reports of releases be made
directly la the NRC, If .the notifieroan
reach a telephone, the NRC most be
called. EPA notes that the most likely
situations in which direct reporting to
the NRC may not be practicable are
releases from vessels at sea or offshore
platforms with no telephone access. In
these cases. zeJeasers would normally
report by radio to a Coast Guard station
that maintains a radio watch. Releasers
who report to the nearest Coast Guard
unit under this provision must also
notify the NRC as .soon thereafter as
possible.
Reporting requirements and penalties
hi CERCLA and the NCP are effective
only for releases covered by the 40 CFR
302.4 List-of-Hazardous Substances and
Reportable Quantities (RQs). However.
•whenever there is any doubt about
whether a release equals or exceeds a
RQ, EPA encourages that it be reported
to the NRC. Paragraph (c) is proposed to
be added to highlight this and to make
clear the only two situations that should
not be reported to the NRC.
The NRC processes all reports of
releases that it receives, regardless of
the substance involved or the
significance of the incident Reports are
archived into the NRC computer data
base at the time of receipt and passed
immediately by telephone to the
appropriate response entity. This
centralized reporting simplifies and
expedites public, governmental,
industrial, and academic access to
information regarding hazardous
substance releases and response.
EPA is proposing to add a new
§ 300.405 (d), to enumerate the kinds of
information that should be provided to
the NRC during notification of releases.
However, EPA points out that reporting
should not be delayed because of
missing information.
3. CERCUS (§ 300.405(f)(2)). EPA is
proposing language to indicate that
when notification shows that removal
action is not necessary, but that a
remedial site evaluation should be
performed, the release will be listed in
the CERCUS remedial inventory. (For a
definition and discussion of CERCLJS,
see the Subpart A preamble section. "4.
New Definitions.")
4. SARA Title III (§30O.40S(g)). EPA is
proposing minor clarifying changes to
the notification requirements of the
NCP. EPA is adding a reference to the
new SARA Title m notification
requirements. This reference states that
notification of the NRC does not
generally satisfy all Title ID notification
requvements. This has been added
because it is important to note that
several notifications may be needed for
each release to meet the requirements of
SARA.
Section 300.410 Removal Site
Evaluation.
TJhis section revises current NCP
S 300-64 and discusses the preliminary
assessment that is conducted to
evaluate available data About a reported
release to determine whether the
conditions warrant a removal action.
A. Major Revisions •
1. Title of section. EPA is proposing to
change the tide of this section from
"Preliminary Assessment lot Removal
Actions" to "Removal Site Evaluation."
Parallel changes for the section
concerning remedial site evaluations are
also being made. These changes clarify
that one of the first steps before
conducting either a removal or remedial
action is to evaluate the release
conditions in order to determine what
actions maybe needed. Section titles in
the current NCP do not reflect the
similar requirements for removal and
remedial actions.
2. Natural resources (§ 300.410(g)).
EPA proposes to revise current
S 300.64(d) to state that the OSC or lead
agency is responsible for ensuring that
State and Federal trustees of affected
natural resources are notified promptly
when it is determined that natural
resources have been, or are likely to be.
damaged. Current S 300.64(d) links this
notification to a preliminary assessment
determination. The proposed language
broadens the section to require trustee
notification whenever any data indicate
that natural resources will be
threatened. Furthermore, the new
language clarifies that the OSC or lead
agency will coordinate, as appropriate.
-------
Federal Register / Vol. 53. No. 245 / Wednesday. December 21. 1988 / Proposed Rules 51H")
the necessary response action
assessments, evaluations,
investigations, and planning with the
State and Federal trustees.
B. Other Revisions
1. Removal/Remedialprogram
coordination (§30O.41O(h)). EPA
proposes a minor addition at
{ 300.410(h) to clarify that when a
removal site evaluation indicates that a
removal action is not needed, but that a
remedial action may be needed, a
remedial site evaluation shall be
initiated and the release shall be listed
on the CERCLIS remedial inventory.
This is similar to the addition proposed
for the notifications section at
$ 300.405(f)(2).
2. Termination of removal site
evaluation f§3OO.nO(e)). EPA is
proposing minor changes "to current
{ 300.64(c) to reference the limitations
on response in 5 300.400fb).
As discussed in the current NCP, it is
important to note that if another party is
responding, 1he OSC will not continue 1o
pursue a removal site evaluation or
action, whether or not such person is
under court or administrative order.
However, if the person is under an
order, the OSC may provide surveillance
as • separate action, -to assure
compliance with the order. There may
also be Instances of voluntary response
where the OSC provides monitoring to
assure proper response and to avoid a
situation where followup action would
be needed.
C. Minor Revisions
EPA is proposing other minor
conforming revisions to ensure
consistency in wording between the new
statute and the NCP, and between
subparts.
Section 3O0.415 Removal action.
This v tion contains the CERCLA
program's removal authorities. EPA is
proposing several revisions to portions
of the current NCP S 300.65 including:
the statutory limits on removal actions
and exceptions to those limits; the
relationship of removal action to
anticipated long-term remedial action; a
list of appropriate removal actions for
specific situations; requirements for
post-removal site control; and the
requirement for submission of the OSC's
report to the RRT.
Today's preamble discussion uses
several descriptive terms to broadly
differentiate among various types of
removals, and EPA wishes to provide
here an understanding of their meanings
in this context "Emergencies" generally
refer to those actions where the release
requires that response activities begin
on-site within hours of the lead agency's
determination that a removal action is
appropriate. "Time-critical" removals
are those where, based on the site
evaluation, the lead agency determines
that a removal action is appropriate and
that there is a period of less than six
months available before response
activities begin on-site. "Non-time-
critical" removals are those where,
based on the site evaluation, the lead
agency determines that a removal action
is appropriate and that there is a
planning period of more than six months
available before on-site activities must
begin. The lead agency for non-time-
critical removals will undertake an
engineering evaluation/cost analysis
(EE/CA) or its equivalent
Because Superfund resources are
finite, it is not possible for EPA to
conduct all removals authorized by
CERCLA. Therefore, the removal
program sets priorities to ensure that the
most serious public health and
environmental threats will be
addressed. Classic emergencies, such as
fires and explosions and time-critical
removals that cannot be addressed by
any other authority, are the removal
program's highest priorities.
A. Major Revisions
1. Statutory limits (§ 3O0.415(b)(5)).
The amendments to CERCLA section
104(c)(l) raised the statutory limits for
Fund-financed removal actions from six
months and $1 million, to twelve months
and $2 million,-respectively. The
amendments also provide a new
exemption from the time and dollar
limits for situations where the lead
agency determines that continued
response is otherwise appropriate and
consistent with the remedial action to be
taken. Formerly, there was an
exemption only for those situations that
•met the emergency criteria hi CERCLA
section 104(c).
EPA proposes to include the new
statutory limits and the new exemption
in the NCP at § 300.415(b)(5). In the
proposal, only statutory language has
been included for both provisions. This
is consistent with the way the
emergency exemption has been treated
in the current NCP.
EPA has developed an approach for
implementing the new exemption and
solicits comment on this approach. EPA
believes that the new exemption should
be used primarily for proposed and final
NPL sites and should be used for non-
NPL sites only in rare circumstances.
EPA believes that Congress originally
put the statutory limits in place because
it intended that the removal program
generally be short-term and mitigative in
nature. Long-term remedial actions
generally involve complete cleanup of
sites which are on the NPL. EPA
believes that the new exemption was
included to ensure that the time and
monetary limits would not preclude
proper implementation of the
requirement in CERCLA section
104(a)(2) that removal actions should, to
the extent practicable, contribute to the
efficient performance of any long-term
remedial action (see below for
discussion of this provision). The
purpose of the provision is to conserve
Fund monies at NPL sites by performing
indicated removals at these sites that
take into account the ultimate remedy.
Monies spent wisely during the removal
portion at NPL sites would enable the
entire action to be completed more
efficiently and cost-effectively.
hi accordance with mis interpretation.
EPA has developed the following
criteria for determining when use of the
new exemption at proposed and final
NPL shea is appropriate:
V To avoid a foreseeable threat;
ii. To prevent further migration of
contaminants;
iii. To use alternate technology to
reduce mobility, toxicity, or volume; or
iv. To comply with off-site
requirements.
Although EPA intends to use the new
exemption primarily at NPL sites in
order to maintain the effectiveness of
the NPL priority system, EPA also
recognizes that there may be some
limited circumstances at non-NPL sites
where use of the new exemption could
be appropriate. If, for example,
treatment could be used that would
permanently or significantly reduce
mobility, toxicity, or volume at a non-
NPL site, then it might be appropriate to
use the new exemption at a non-NPL
site. Use of the exemption in these
situations at non-NPL sites would be
consistent with a permanent remedy,
but use at non-NPL sites is not intended
to supplant the remedial program. EPA
will ensure that the new exemption is
used at non-NPL sites only in limited
circumstances by requiring that each
decision for using the new exemption a t
a non-NPL site be approved by the
Assistant Administrator for the Office of
Solid Waste and Emergency Response.
2. Efficient performance of the long-
term remedial action (§ 3O0.415(c)),
CERCLA section 104(a)(2) provides that
removal actions should, to the extent
practicable, contribute to the efficient
performance of any long-term remedial
action with respect to the release. EPA
is proposing to incorporate this language
into the NCP. This provision is intended
to avoid repetitive removal actions or
actions that do not take into account
-------
51410 Federal Register / Vol. 53. No. 245 / Wednesday. December 21, 1988 / Proposed Rules
their impact on performance of
subsequent remedial action, and to
allow for more permanent tasks to be
completed under removal authorities.
EPA proposes to apply this requirement
to all removal actions. Since removals
may occur in situations where there is
only limited information on whether or
not a remedial action is anticipated, the
lead agency need only consider
information that is availabte at that
time. The lead agency should consider
the following questions when selecting a
removal action that will contribute to
the efficient performance of the long-
term remedy:
i. What is the long-term response plan
for the site? If there is no plan, what is it
likely to be? To determine the long-term
response plan the OSC need use only
currently available information. The
OSC is not required to determine long-
term action.
ii. Which threats will require attention
prior to the start of the long-term
response? An efficient removal should
address those threats that require
attention in order to stabilize the site or
protect human health and the
environment until the long-term remedy
can be implemented.
iii. How far should the removal go to
ensure that ihs threats are adequately
abated? If a long-term remedy is
planned, an efficient removal should
mitigate the threat to human health and
the environment until the remedial
action can be implemented. At a
minimum, this means that the removal
should prevent or reduce further
migration or public contact.
iv. Is the proposed removal action
consistent with the long-term remedy?
An efficient removal generally should
not hinder or foreclose viable options
for a long-term remedial action.
Removal action should not be unduly
delayed by the consideration of the
above criteria. The threat to human
health and the environment shall remain
the primary concern "of the lead agency
conducting the removal. Occasionally, it
may not be practicable to be entirely
consistent with the long-term remedial
action. This may occur when it is
necessary to slow the migration but not
possible to implement the long-term
remedy. For example, removal actions
may be needed that merely stabilize
(e.g., cap) some sites to reduce the
migration threat until a long-term
treatment remedy is developed. EPA is
currently developing guidance to further
address the details. EPA solicits
comments on the policy of extending the
section 104(a)(2) provision to all
removals rather than limiting it to NPL
rites only, and on the criteria for
determining whether a removal will
contribute to the efficient performance
of the long-term remedial action.
B. Other Revisions
1. Engineering evaluations and costs
analyses (§ 300.415(b)(4)). It is EPA's
Intent that the lead agency conduct an
engineering evaluation and cost analysis
(EE/CA) or its equivalent, as
appropriate, as a part of removal actions
in those cases where adequate planning
time is available before the start of the
removal. EPA believes adequate
planning time is a minimum of six
months. EE/CAs contain evaluations of
possible alternative technologies,
•election of the response, and document
the decisionmaking process. Engineering
evaluations and cost analyses use a
screening process and analysis of
removal options based upon such
factors as technical feasibility,
institutional considerations,
reasonableness of cost, timeliness of the
option with respect to threat mitigation,
environmental impacts, and the
protectiveness of the option. This
information will be subject to review
and comment by the public prior to
initiation of the affected removal.
2. Appropriate actions (§ 300.415(d)).
EPA is proposing some minor changes to
the current § J 300.65(c) (3) and (6) by
clarifying additional activities that can
be conducted.
3. Off-site policy. Current J 300.65(g)
requires that removal actions taken
pursuant to CERCLA sections 104 and
106 that involve the storage, treatment,
or disposal of hazardous substances,
pollutants, or contaminants at off-site
facilities shall use only those facilities
that are operating under appropriate
Federal or State permits or authorization
and other legal requirements. EPA has
separately proposed regulations
implementing CERCLA section 121(d)(3)
which imposes requirements on the off-
site transfer of hazardous substances or
pollutants or contaminants, 53 FR 48218.
November 29,1988.
4. State-lead removals (§§300.415 (h)
and (i)). EPA is proposing to codify hi
the NCP its existing policy allowing
States to enter into cooperative
agreement to undertake Fund-financed
removal actions, provided that States
follow all the provisions of the NCP
removal authorities. Non-time-critical
actions are the most likely candidates
for State-lead removal because
sufficient time generally exists to
complete a cooperative agreement. The
new language also states that facilities
operated by a State or political
subdivision require a minimum cost
share of 50 percent of the total response
costs if a remedial action is taken.
5. Post-removal site control
(§ 300.415(1)). Because of statutory limits
on removals and the historical role of
removals as short-term actions, there
will sometimes be situations at both
NPL and non-NPL sites where post-
removal site control actions (such as
watering a grass cover) will be
necessary. EPA expects that States,
potentially responsible parties, or EPA's
remedial program (hi the case of some
Fund-financed NPL sites) will provide
for post-removal site control activities to
ensure the protectiveness of the removal
action. This may also involve arranging
for private parties or Federal facilities to
conduct the post-removal site control. In
most cases, the possible State role in
post-removal site control will be
discussed prior to initiation of removal
activities. EPA wants to encourage that,
to the extent practicable, the State
commitment to conduct such action be
secured prior to the start of cleanup.
EPA is developing procedures for
assumption of post-removal site control
at NPL and non-NPL sites. For more
discussion of State assurances
necessary for cooperative agreement for
State-lead removal and remedial
actions, see the discussion of the new
State involvement regulations in today's
preamble discussion of Subpart F.
6. OSC reports (§ 3O0.415(m)). This
paragraph has been added to ensure
that OSCs and RPMs conducting
removal actions submit OSC reports. It
is important that where RPMs are
overseeing removal actions at NPL sites,
they submit OSC reports to the RRT for
review (see "Points of Clarification"
below for discussion of situations where
an RPM might oversee a removal). The
Subpart B discussion of OSC reports
also proposes some minor clarifying
changes for OSC reports.
7. Community relations (§ 300.415(n)).
Discussion of community relations is
included in the Subpart E, J 300.430
preamble section, "H. Community
Relations."
C. Points of Clarification
1. Compliance with other laws.
CERCLA section 121 requires that
remedial actions attain a level of
standard of control which is applicable
or relevant and appropriate to any
hazardous substance, pollutant or
contaminant that will remain on-site. In
contrast, section 121 does not require
that removal actions attain applicable or
relevant and appropriate requirements
(ARARs). EPA's policy for removal
actions, however, is that ARARs will be
identified and attained to the extent
practicable. ARARs are those
substantive requirements that pertain to
-------
Federal Register / Vol. 53, No. 245 / Wednesday. December 21, 1988 / Proposed Rules 51411
actions or conditions in the environment
(see Subpart E, { 300.430 preamble
section below, F.15).
Three factors will be applied to
determine whether the identification
and attainment of ARARs are
practicable in a particular situation: (i)
The exigencies of the situation; (ii) the
scope of the removal action to be taken;
and (Hi) the effect of ARAR attainment
on the statutory limits for duration and •/
•cost ' ' • '
L Exigencies of the situation. OSCs
must often act quickly to provide
protection of public health and the
environment, and any delay would
compromise this objective of the
removal action. Where urgent conditions
constrain or preclude efforts to identify
and attain ARARs, the OSCs
documentation of these conditions will
be considered sufficient as justification
for not attaining all ARARs. To
illustrate, a site may contain leaking
drums that pose a danger of fire or
explosion in a residential area. The
drums should be removed or stabilized
immediately without attempting to
identify and comply with all potential
ARARs. The OSCs documentation
should describe the time-critical nature
of the situation and the removal action
taken.
ii. Scope of the removal action.
Removal actkma generally focus on the
stabilization of a release or threat of
release and mitigation of near-term
threats. ARARs that are within the
scope of such removal actions,
therefore, are only those ARARs that
must be attained in order to eliminate
the near-term threats. For example, a
removal action may be conducted to
remove large numbers of leaking drums
and associated contaminated soil. In
this situation, because the removal
focuses only on partial control.
chemical-specific ARARs for ground-
water restoration would not be
considered.
iii. Statutory limits. CERCLA sets time
and money Limitations on a Fund-
financed removal action. Attainment of
all ARARs for a removal response may
not be possible within the 12 months or
$2 million limits set in the statute. For
instance, a removal action may be
undertaken at a site where there is
widespread soil and ground water
contamination. This response might
involve removal of surface debris and
excavation of highly contaminated soil
necessary to reduce the direct contact
threat and further deterioration of the
ground water. If the statutory limits
were reached or approached as a result
of the debris removal and limited
excavation, and no statutory exemption
applied, more extensive excavation of
low-level soil contamination as part of
the removal may not be warranted.
Although the statutory limits may
preclude removals from attaining all
identified ARARs. OSCs will strive to
' comply with those ARARs that are most
crucial to the proper stabilization of the
site and protection of public health and
the environment (Exemptions to the $2
million/12 month statutory limits may
be granted where sites meet the criteria
for approving the "emergency" or
"consistency" exemptions.)
If none of the three factors would act
to preclude identification and
attainment of particular ARARs (i.e.,
attainment is not impracticable), then.
the statutory waivers in CERCLA
section 122(d)(4) and 5 300.430{f}(3) of
the proposed NCP should be examined
to ascertain, as for a remedial action,
whether the ARAR may be waived. For
example. State ARARs do not have to
be attained where the State standard,
requirement, criterion, or limitation has
not been consistently applied in
circumstances similar to the response in
question. If a State standard is identified
as an ARAR for a removal action,
attainment of that ARAR may be
waived if the State has inconsistently '
applied it in similar circumstances. The
ARARs waivers generally may be used
as they are used for remedial activities.
2. Removals conducted daring the
remedial process. During the course of
the remedial process at an NPL site,
releases or threats of releases may be
discovered that will threaten public
health or the environment within a
length of time shorter than that in which
the remedial program can respond. In
such situations, it is appropriate to use
removal authority to quickly abate or
remove the threat This may be done
either through: (i) A traditional removal
action conducted by the removal
program using its own resources, or (ii)
through an "expedited response action"
(ERA) conducted by the remedial
program using its own resources. ERAs
are performed when the threat identified
in the removal action memorandum is of
such a nature that response can be
delayed for six months or more. The
delay allows time for the procurement
process, preparation of an EE/CA or its
equivalent, and solicitation of formal
public comment to be completed.
The potential for concurrent removal
and remedial activities, and new
CERCLA language encouraging
consistency with remedial actions
makes it important for OSCs and RPMs
to coordinate with each other and to
share the data that they have generated
during their respective activities.
3. Removal versus remedial actions
and "trigger" level. EPA has considered
whether a clearer removal/remedial
distinction could be made through the
establishment of "trigger" levels for
these actions (e.g., setting specific
maximum levels of contamination for
particular hazardous substances that
would always "trigger" a removal action
rather than a remedial action). EPA has
decided against this because response
decisions are made on a site-by-site
basis and there is no one trigger level
which would be appropriate for all.
situations involving a particular
contaminant In general, as described at
the beginning of the preamble discussion
for Subpart E, the removal program is .
more likely to remove point sources of
contamination that can be addressed
within the removal statutory limits. The
remedial program; on the other hand, -
may address a wider range of • •
contamination problems. Use of
"trigger" levels is not appropriate for
making this distinction. In addition,
"trigger" levels would vary based on the
additive effects that can result from the
interaction of several chemicals. Finally,
as treatment technology changes,
established standards may change, and
any regulatory language might always
be a few steps behind technology.
Therefore, EPA continues to believe
strongly that OSCs and RPMs must
consider all information available to
them at the time that decisions are made
about which response approach to use
at a given site.
4. Regulations on reimbursement to
heal governments. CERCLA section 123
authorizes reimbursement of local
governments for expenses incurred in
providing temporary emergency
measures in response to releases of
hazardous substances, pollutants, or
contaminants. Reimbursement is Limited
to $25,000 per response and is not
intended to supplant local funds
normally provided for such response.
EPA has issued a separate interim final
rule, 40 CFR Part 310, which establishes
the procedures and requirements for
local government reimbursement (See
52 FR 39386, October 21,1987.) As such.
only a reference to this new CERCLA
provision is included in Subpart H of the
NCP.
Section 3O0.42O Remedial Site
Evaluation.
This section revises current § 300.68,
"Site evaluation phase and National
Priorities List determination." Current
§ 300.66 has been split into two sections:
"Remedial Site Evaluation" and
"Establishing Remedial Priorities." In
§ 300.420, EPA is today proposing
revisions that expand the activities that
may be undertaken during remedial site
-------
51412 Federal Register / Vol. 53, No. 245 / Wednesday. December 21, 1988 / Proposed Rules
evaluation to determine whether a site
should be included on the NPL The
revised section addresses how EPA
proposes to use remedial preliminary
assessments and site inspections (PA/
Sis) to evaluate and characterize
releases to determine if they warrant
remedial action.
A. Major Revisions
1. Purpose and content of a remedial
preliminary assessment (§ 300.420(b)).
The revised rule states in { 300.420(b)
that remedial preliminary assessments
(PAs) shall be conducted for all sites
listed in the CERCLIS remedial
inventory. Moreover, EPA is proposing
to define a PA, which was previously
undefined, in the definition section of
Subpart A (see also Subpart A
preamble).
The purpose of the remedial PA, as
described in the current NCP, is to set
priorities for remedial site inspection, to
determine whether removal action is
warranted, and to eliminate from further
remedial consideration those releases
that do not threaten public health or the
environment. Today's proposed
regulatory revisions would expand the
purpose of the remedial PA to include
the gathering of appropriate existing
data to assist in developing a hazard
ranking score. Additionally, EPA
proposes that remedial PAs may consist
not only of a review of existing data and
an off-site reconnaissance, but also may
include an on-site reconnaissance, if
appropriate.
Today's proposed revisions would
add provisions requiring the lead agency
to complete a remedial PA report The
revisions generally outline the type of
information that should be contained in
the report, including a description of the
site, the probable nature of the release,
and a recommendation of whether
further action is warranted as well as
the nature of such further action and
which agency should carry it out
2. Citizen petitions for preliminary
assessments (§ 3O0.420(b)(5)). Section
105(d) of CERCLA, as amended,
provides that any person who is, or may
be affected by a release of a hazardous
substance, pollutant, or contaminant.
may petition the President to conduct a
preliminary assessment of the hazards
associated with the release. If a PA has
not yet been conducted, it must be
completed within a year or an
explanation of why the PA is not
appropriate must be provided. In E.O.
12580, the President delegated this
authority to EPA or the heads of
Executive departments and agencies
with respect to facilities under the
jurisdiction, custody, or control of those
departments and agencies. EPA is
proposing procedures which address
how the public should petition EPA or
other appropriate Federal agency and
how EPA will respond to petitions,
including criteria for determining when
a PA is not appropriate.
Petitions for PAs should be directed to
the Regional Administrator who
oversees the area in which the release is
located or, in the case of a release from
a Federal facility, to the Federal agency
responsible for that facility. In cases
where EPA receives a petition involving
a release from a Federal facility, this
petition will be forwarded to the
appropriate Federal agency for action. A
list of EPA Regional Offices, their
addresses, and the States and other
areas for which they are responsible is
provided in section C. below.
3. Required information to be
submitted with PA petitions
(§ 300.420(b)(5) (i) and (ii)). In
developing the procedures for petitions,
EPA has attempted to balance the need
for specific information concerning a
release or potential release necessary to
act on the petition, against the potential
burdens that such procedures might
place on the public. Specific information
on the location of the release is
essential. Additional information and
documentation on the nature of, and
history of, activities at the release will
expedite response to petitions; and in
cases where an immediate threat may
be posed, facilitate appropriate further
evaluation or response to such threats.
In accordance with CERCLA section
105(d), petitioners also have a.
responsibility to demonstrate how they
are, or may be, affected by the release.
EPA is proposing that at a minimum the
petition shall contain the following
information:
i. Name, address, phone number, and
signature of petitioner;
ii. Description of the location of the
release or suspected release, including a
marked map, if possible;
iii. How the petitioner is or may be
affected by the release or suspected
release;
Additionally, EPA is proposing that
the petitioner should include as much
information as possible regarding:
iv. The type of substances released or
with potential to be released;
v. The nature and the history of
activities that have occurred at releases
or suspected releases; and
vi. Prior contacts with local and State
authorities about the release and the
disposition of these notifications.
Items i. through iii. are essential to a
complete petition, and EPA will not
deem the one-year time period for
responding to the petition to begin until
such information has been provided.
Information in response to items iv.
through vi. is recommended and will
facilitate the review of the petition and
identification of the need for further
assessment and/or immediate response
to potential threats which might be
posed by the release. Additionally, since
not all releases or potential releases of
hazardous substances can be addressed
under CERCLA, EPA encourages
petitioners affected by releases to notify
all appropriate State and local agencies
of the suspected release. This will assist
in determining the appropriate response
authority in cases where response
appears warranted.
4. Responsibilities of the lead Federal
agency in receiving or responding to PA
petitions (§300.420(b)(S)(iii)). Upon
receipt of a complete PA petition, EPA
or the appropriate Federal agency (the
lead Federal agency) will first determine
whether a PA has already been
conducted for the release. In cases
where a PA has not been conducted,
pursuant to the language in CERCLA
section 105(d), the lead Federal agency
will determine whether such an
assessment is appropriate.'Where
appropriate, a removal or remedial PA
will be completed within one year.
When a PA is deemed appropriate, the
lead Federal agency will determine
whether a removal, as opposed to a
remedial, PA will be performed, based
on the information available at the time
of notification of the release or the
suspected release. Where a PA is not
deemed appropriate, the lead Federal
agency will notify the petitioner and
provide an explanation of this
determination within one year.
In determining whether a PA is
appropriate, the lead Federal agency
will take into consideration: (i) Whether
there is any information indicating that
a release has occurred or that there is a
threat of a release of a hazardous
substance, pollutant, or contaminant;
and (ii) whether the site appears to be
eligible for response under CERCLA.
The first criterion is expected to be
used rarely, but could be applicable in
those cases where the petition, or other
readily available information, does not
provide sufficient information to show
that there has been a release or there is
potential for release at a specific site.
EPA is proposing the second criterion
for situations where, based on the
available information, it is clear that the
•ite will ultimately not be eligible for
response under CERCLA, for example,
because of a statutory exemption.
Therefore, further site evaluation would
not be appropriate under CERCLA.
When determining whether or not a
PA is appropriate, the lead Federal
-------
Federal Register / Vol. 53, No. 245 / Wednesday, December 21. 1988 / Proposed Rules 51413
agency will also consider whether there
is any indication that an immediate
response may be needed. If there is such
an indication, the lead Federal agency
will initiate a removal PA. If the release
is found to meet one of the removal
criteria in $ 300.415(b), the lead Federal
agency will initiate a removal action.
Although this will satisfy the
requirement to perform a PA in response
to a petition, when the removal PA or
removal action is complete, the lead
Federal agency will consider whether
further evaluation may be needed.
When there is no indication that an
immediate response may be needed, the
lead Federal agency will conduct a
remedial PA to respond to a citizen
petition for a PA. As described
elsewhere, remedial PAs are more
comprehensive and serve a different
purpose than removal PAs. Because EPA
expects that remedial PAs will generally
be conducted in response to a citizen
petition, the paragraphs on PA petitions
are proposed to be located in the section
on remedial site evaluations.
When the results of a completed PA
indicate that the release or threat of
release may pose a threat to human
health or the environment, the remedial
evaluation process will be continued.
5. Purpose and content of site
inspections (§ 300.420fc)J. The proposed
revisions to the NCP state that if the PA
indicates that further site evaluation is
warranted, the lead agency shall
conduct a remedial site inspection (SI).
The current NCP states that the
purposes of the SI are to determine
which releases pose no threat or
potential threat to public health or the
environment to determine if there is any
immediate threat to persons living or
working near the release, and to collect
data to determine whether a site where
a release has occurred or may occur
should be included on the NPL
The proposed NCP retains the same
basic concepts with some modifications.
First. EPA proposes that the language in
subparagraph (c)(l) be changed so that
it parallels language used about PAs in
subparagraph (b)(l). Second.
subparagraph (c)(l)(iv) as proposed
concerns collecting data beyond that
which is required to score the release
pursuant to the HRS. This paragraph no
longer ties Sis directly to listing a
release on the NPL as the existing NCP
does. EPA proposes in (c)(l)(iv) to
expand the scope of data collection and
sampling during selected Sis, as
appropriate, to better characterize the
release so that, where necessary, the Rl/
FS or response under other authorities
can be initiated more rapidly and
effectively. While information gathered
during the SI may be used to evaluate a
release pursuant to the HRS, it may be
more appropriate to undertake response
under authorities other than CERCLA. In
such a case, the release would not be
listed on the NPL (For further
information, see preamble discussion,
"5 300.425—Establishing Remedial
Priorities.")
The SI builds upon the information
collected in the remedial PA and
consists of a visual inspection of the
release as well as the collection of
samples. However, if adequate sampling
has already occurred, the additional
collection of samples may not be
necessary. Like the PA. if the SI reveals
that a removal action may be necessary,
the lead agency shall initiate a removal
site evaluation.
Today's revisions would require that
the lead agency complete an SI report
and that the revisions generally outline
the contents of this report The report
would include information regarding a
description, history, or nature of waste-
handling at the site, a description of
known contaminants, a description of
pathways of migration of contaminants,
an identification and description of
human and environmental receptors,
and a recommendation as to whether
further action is warranted.
B. Point of Clarification
Criteria for determining that further
remedial evaluation is warranted. At
each step in the remedial site evaluation
process the lead agency is responsible
for recommending whether further
evaluation or action is warranted.
Because the major end purpose of the
remedial site evaluation process has
been to determine whether a release
should be included on the NPL, EPA
generally has not begun or continued to
evaluate a site (except where a removal
action was needed) if a site was found.
as a matter of policy, not to be eligible
for the NPL (e.g., a RCRA site).
EPA is proposing revisions to the
primary purpose of the remedial site
evaluation process. (See the proposed
changes described above.) EPA is also
requesting comments on expanding the
current NPL deferral policy to include
other Federal and State response
authorities (See preamble discussion.
"{ 300.425—Establishing Remedial
Priorities.") EPA believes that the
overriding goal in the remedial site
evaluation program should be to ensure.
to the extent practicable, that sites
posing the most serious threat are
identified and then addressed as soon
as possible by the appropriate Federal
or State authorities. This could result in
a remedial PA or SI being conducted at
a site that is later deferred, as a matter
of policy, from listing on the NPL For
example, EPA may perform an SI on a
site subject to RCRA corrective action
even though the site may be eligible for
deferral from the NPL
The second result is that the focus of
further remedial site evaluation will be
on sites that show evidence of a
significant threat or potential threat to
human health or the environment In
determining at the end of the remedial
PA and SI whether or not a site poses a
significant threat or potential threat to
human health or the environment the
lead agency may use a combination of a
preliminary HRS score and best
professional judgment The preliminary
HRS score is based on the HRS model
but uses very conservative assumptions
to compensate for the limited data
available at early stages of the
evaluation process. In addition, where
necessary and appropriate, best
professional judgment may be used to
supplement die preliminary score in
making decisions about whether or not
to proceed to the next phase of
evaluation. The use of conservative
assumptions combined with the use of
best professional judgment should
address those situations where data are
limited but there may be a potential
threat.
If the lead agency determines that a
site poses a significant threat or
potential threat based on a preliminary
HRS score or based on best professional
judgment then the site may proceed to
the next stage of evaluation up to NPL
consideration. If the preliminary score
or judgment indicates that the site is
unlikely to meet NPL scoring
requirements, then EPA will notify the
appropriate State of the results of the
site evaluation and that EPA does not at
that time intend to pursue further action
under CERCLA section 104 or other
Federal authorities.
During the remedial preliminary
assessment available information is
collected and documented to
characterize the site as accurately as
possible so that a decision can be made
about the site. The remedial PA should
result in a recommendation on whether
further action is needed. The
recommendation may be that the site
may be appropriate for a removal, or
that the site should proceed to a
remedial site inspection because there is
evidence of significant threat or that the
remedial site evaluation should be
terminated because the evidence does
not show that there is or may be a
significant threat.
-------
51414 Federal Register / Vol. 53, No. 245 / Wednesday, December 21, 1088 / Proposed Rules
C. REGIONAL OFFICES
(As OF ocrorcn IOM)
Address
REGION I
JFK Federal Budding,
Room 2203, Boston,
MA 02203.
26 Federal Plum. New
York, NY 10278.
REGION ni
841 Chestnut St-eet,
PMmMphia. PA
19107.
RESIGN rv
345 Courttand Street, HE
Atlanta, GA 3C365.
REGION V
£30 South Dearborn St.,
Chicago, U. 60604.
REGION VI
1445 Ross Avenue,
Suite 1200, Dallas, TX
75202.
REGION Vll
7<6 Minnesota Ave,
Kansas City, KS 66101
REGION vm
699 18* Street. Suite
500, Denver, CO
60202-2405.
REGION IX
i'5 Fremont Street San
Francisco. CA 94105.
REGION X
1JOO Sixth Avenue,
Seattle, WA 98101.
Areas h tttt region
Connecticut, Maine.
Massachusetts, New
Haftipsrwe, Rhode
Island, Vermont
rww jm0yt
Puerto Rico, Wgin
Wands.
Delaware, District o<
Cobmbta. Maryland.
Pennsylvania, Wgini*,
Wed WgM*.
Alabama, Florida.
Georgwu Kentucky.
Mississippi, Korth
Carolina, South
Caroine, Tennessee.
Illinois, kxtena,
Michigan, Minnesota.
Ohio, Wisconsin.
Arkansas, Louisiana,
New Mexico,
Oklahoma, Texas.
Iowa, Kansas. Missouri,
Nebraska.
Colorado, Montana,
North Dakota. South
Dakota. Utah,
Wyoming
American Samoa,
Arizona. California.
Guam. Hawaii.
Nevada, Northern
Mariana Islands, Trust
Territory of the Pacific
Islands.
Alaska, Idaho. Oregon,
Washington.
Section 300.425 Establishing Remedial
Priorities.
This section reorganizes and revises
current { 300.66(c) of the NCP which
addressed listing on the National
Priorities List. The revised section acts
forth the criteria and procedures for
placing sites on the NPL and the criteria
and procedures for deleting sites from
the NPL.
A. Major Revisions
1. Clarification of rank on the NPL
(§ 300.42S(b)). EPA is proposing to revise
the first sentence of current paragraph
{ 300.66(c)(2), which states that "it]he
NPL serves as a basis to guide the
allocation of Fond resources among
release*," to clarify that the NPL it a tat
of priority releases for long-term
remedial response under CERCLA. A
site's rank on the NPL is one of a
number of factors which guide the
allocation of Pond resources. Sites are
added to the NPL in order of their HRS
score and as new sites are added to the
NPL they are generally incorporated into
the previously promulgated NPL in order
of then-HRS score. The NPL is presented
in groups of SO sites to emphasize that
minor differences hi HRS score do not
necessarily represent significantly
different levels of risk. EPA considers
sites within * group to have
approximately the same priority for
response actions.
To the extent feasible, once sites are
listed on the NPL, EPA determines high-
priority candidates for either Fund-
financed response action or enforcement
action from within the highest priority
groupings, however many factors other
than a site's rank are considered For
example, the status of enforcement
actions, voluntary private party
response, and State willingness to cost
share may enter into the decision
regarding the order in which funds will
be committed to respond to sites. In
addition, it should be noted that
CERCLA section 120(e}{l} requires the
appropriate Federal agency to
commence an RI/FS at a Federal facility
not later than 6 months after the
inclusion of the Federal facility on the
NPL
In § 300.425(b), EPA proposes not to
include the reference to the 400-site
minimum originally required in the 1980
CERCLA and reflected in current
J 300.66(c)(l}. This is a minor
conforming revision to reflect the
statutory amendments.
2. Procedures for placing sites on the
NPL (§300.425(d)). Most of this section
is proposed to be reorganized from
current i 300.66{c). The major addition is
the description of procedures for
proposing the NPL in the Federal
Register and ensuring public
involvement. Sections 300.425{d}{5) (i)
and (ii) have been standard procedure
for listing sites on the NPL and were
added to the NCP for clarification.
3. Revision of requirement to submit
the recommended NPL to the NRT. EPA
is proposing that current i 300.66(cX9)
be deleted because the NRT does not
generally have additional factual data
that is relevant to the HRS score or
other NPL eligibility of specific sites.
Therefore, it is not generally necessary
to submit the recommended NPL to the
NRT for review and comment as the
current NCP requires. EPA notes that
sites are add«d to the NPL only after
they have been proposed for listing on
fee NPL in the Fadsxal Register. After
proposal in the Federal Register. EPA
receives and responds to these
comments from interested members of
the pabh'c as well as from other Federal
and State entities in the final
rulemaking. EPA believes that through
the Federal Register proposal, the
member agencies of the NRT would still
receive notice and have an opportunity
to comment regarding sites for which
they may have information relating to
whether a specific site is eligible for the
NPL. In situations in which the NRT has.
or appear* likely to have, factual
information regarding whether a
particular site is eligible for the NPL,
EPA will consider this information
during the NPL ralemaking process and,
if appropriate, consult with the NRT.
4. Deletion of sites from the NPL
(§3O0.425(e)). This section incorporates
former f 300.68(cX7) in describing the
criteria for deleting sites from the NPL
A site may be deleted where no further
response is appropriate.
There are three changes to
{ 300.4Z5(e) on deletions. The first
change is that { 300.425(e)(2) has been
added to specify mat the State in which
the release was located must concur in
deleting it from the NPL CERCLA
section 121(f)(l)(C) requires State
concurrence on deletion from the NFL
The second change is a minor
conforming addition to { 30Q.425(e)(3} to
reflect the new provision in CERCLA
section 105(e) to relist without rescoring
a site that has been deleted if there is a
significant later release at that site.
The third change U that information
has been added to describe how EPA
will conduct the deletion process and
ensure public involvement This
procedure for publishing a Notice of
Intent to Delete in the Federal Register
and soliciting public comments is
existing EPA policy and was followed in
the March 7,1086 Notice of Deletion.
Any site deleted from the NPL under
proposed { 300.425(e) remains eligible
for further Fund-financed response in
the unlikely event that conditions at the
site require such action, consistent with
CERCLA section 105(e).
B. Point of Clarification
HRS reviaoru. The 1988 amendments
to CERCLA require EPA to promulgate
amendments to the HRS to assure, to the
maximum extent feasible, that the HRS
accurately assesses the relative degree
of risk to human health and the
environment posed by sites and
facilities subject to review. The HRS is
Appendix A to the NCP and is the
-------
Federal Register / Vol. 53, No. 245 / Wednesday, December 21. 1988 / Proposed Rules 51415
principal mechanism EPA uses to place
sites on the NPL Revisions to the HRS
are being undertaken as a separate
rulemaking action, and when finalized
after opportunity for public comment.
will be incorporated into the NCP as
revised.
C. Proposal to Recategorize Sites on the
NPL
The current NCP provides that
releases may be deleted or
recategorized on the NPL. At the time of
promulgation of the 1985 NCP revisions,
the deletion criteria and procedures had
undergone several comment periods (see
49 FR 40322, October 15,1984; 50 FR
5862. February 12,1885; and 50 FR 47912.
November 20,1985] and EPA was in the
process of deciding whether sites would
be deleted from or recategorized on the
NPL The final NPL rulemaking on June
10,1986 (51 FR 21066-67) reflected EPA'a
intention to delete sites rather than
recategorize them on the NPL However,
EPA is now considering an approach
that would recategorize sites on the NPL
while still providing for deletion from
the NPL when appropriate under current
deletion criteria.
The purpose of this proposal would be
to improve the way EPA communicates
to the public the status of remediation
progress at NPL sites. Currently, EPA
identifies a response category and
cleanup status code for each site on the
NPL at which action has been initiated
(51 FR 21075, June 10,1986). Sites may
be deleted from the NPL "where no
further response is appropriate," such as
where response actions have been
completed either by the PRPs or through
Fund-financed response, or where no
remedial measures have been deemed
necessary. EPA is concerned that the
response category (identifies who has
the lead) and the cleanup status codes
(I=implementation activity underway.
one or more operable units; O=one or
more operable units completed, others
may be underway; and
C=implementation activity completed
for all operable units] do not fully reflect
the remedial response activities at a
site. In many cases, due to the nature of
hazardous waste contamination, a
significant period of time may be
required between installation of an
appropriate and fully functional remedy
and the completion of the remedial
action. For example, a remedy designed
to restore groundwater quality to
acceptable levels may consist of long-
term (e.g., 20 years) "pump and treat"
operations. That such long-term activity
is underway is not well communicated
by the current status codes.
Therefore, in order to provide more
useful information on the status of
remedial activities conducted at NPL
sites, EPA is considering a proposal to
establish a new category on the NPL
This category would be the Construction
Completion category, consisting of sites
where construction activities have been
completed, i.e., sites where long-term
response actions (LTRA) are hi progress
or sites awaiting deletion. An LTRA
represents a site where all remedial
actions have been implemented but
where continued operation of the
remedy is required for an indefinite
period before the levels of protection
specified in the Record of Decision
(ROD) are achieved. A site awaiting
deletion is where an approved Close
Out Report indicates that no further
remedial activity la required or
appropriate at that site.
When a remedy has been
implemented and is operating properly,
a Close Out Report (interim or final)
would summarize the technical basis for
determining that construction activities
are complete at a site. For sites awaiting
deletion, the Close Out Report would
document that the remedy has achieved
protectiveness levels specified in the
ROD, and that remedial action is
complete. For LTRAs, the Close Out
Report would describe the nature of the
continuing action. Sites initially denoted
as LTRAs would eventually become
sites awaiting deletion (on the basis of
final or amended Close Out Reports).
Those sites for which CERCLA requires
five-year reviews of the remedy {see
5 300.430(f)) would be dearly identified
upon attaining classification in the
Construction Completion category.
Moreover. EPA does not believe that the
need to conduct a five-year review
means that a site must be listed as an
LTRA; such sites may also, where
appropriate, .become deletion
candidates.
After a Close Out Report has
documented that a site can be placed in
the Construction Completion category,
EPA may begin the deletion process,
where appropriate. However, in cases
where a significant delay will exist
between placing a site in the
Construction Completion category and
the date of the next NPL deletion notice,
EPA may initiate the deletion process
without placing the site in that category.
EPA requests comment on this
proposal specifically on the merits of
creating a Construction Completion
category.
D. Deferral Policies
EPA has in the past deferred the
listing of sites on the National Priorities
List (NPL) when other authorities were
found to exist that were capable of
accomplishing needed corrective action.
To date, this deferral policy has been
limited to two specifically enumerated
Federal laws. EPA is considering
broadening the deferral approach, such
that listing of sites on the NPL would be
deferred in cases where a Federal
authority and its implementing program
are found to have corrective action
authority. EPA further requests comment
on whether to extend this policy as well
to States that have implementing
programs with corrective action
authorities to address CERCLA releases.
EPA also requests comment on
extending this policy to sites where the
potentially responsible parties (PRPs)
enter into Federal enforcement
agreements for site remediation under
CERCLA.
This section of the preamble is
intended to clarify EPA's approach to
determining which of those sites meeting
the eligibility criteria of the NCP will be
listed on the NPL This section will
describe the reasons EPA has
implemented a deferred listing approach •
for certain authorities, the regulatory
and statutory background of NPL listing
policies, and issues raised by today's
draft policy to consider the expansion of
the deferred listing approach. EPA
intends to keep the current deferral
policies in effect, and not implement a
general deferred listing policy, until
comments are considered on today's
draft policy.
There are two primary reasons why
EPA is considering expanding its use of
NPL deferrals to appropriate Federal
and State authorities. First, EPA
believes that this approach will assist
EPA in meeting CERCLA objectives; by
deferring to other authorities, a
maximum number of potentially
dangerous hazardous waste sites can be
addressed, and EPA can direct its
CERCLA efforts (and Fund monies, if
necessary) to those sites where remedial
action cannot be achieved by other
means. Second. EPA believes where
other authorities are in place to achieve
corrective action, it may be appropriate
to defer to those authorities.
1. Purpose of the NPL EPA's approach
to listing sites on the NPL is based on its
interpretation of the purpose of the NPL
A conference report on CERCLA
explains that the NPL was intended to:
[SJerve primarily informational purposes
identifying for the Stale* and the public those
facilities and fites or other releases which
appear to warrant remedial actions. S. Rep.
No. 96-848,96th Cong., 2d Sess. 60 (1980).
In the past, EPA viewed the NPL as a
list compiled for the purpose of
informing the public of the most serious
hazardous waste sites in the nation,
-------
51416 Federal Register / Vol. S3. No. 245 / Wednesday, December 21. 1868 / Proposed Ralet
regardless of which law applies.
Subsequently, it was viewed as a list for
informing the public of hazardous waste
tites that appear to warrant remedial
action under CERCLA. In addition, it
may be appropriate to view the non-
Federal section of the NPL merely as a
list for informing the public of hazardous
waste sites that appear to warrant
CERCLA funding for remedial action
through CERCLA funding alone. EPA
believes that one of the latter two
approaches would be preferable to the
broad approach of listing all potential
problem sites. This will allow EPA to
make the NPL a more useful
management tool for EPA and also to
provide more meaningful information to
the public and the States. EPA's
decision on which way to view the NPL
will be largely determined by its
decision on the deferral policies
discussed below. As explained in the
following discussion. EPA believes that
the latter two alternative views of the
NPL are consistent with CERCLA and
its legislative history.
EPA's interpretation of the NPL as a
list that should not include all sites that
could potentially be addressed by
CERCLA is consistent with the terms of
the statute itself. CERCLA section
lC5(a)(8)(B) calls upon the President to
list "national priorities among the
known releases or threatened releases
throughout the United States," not to list
all releases. Therefore, although EPA
believes it has the authority to h'st any
site where there has been a release or
threatened release of a hazardous
substance, pollutant, or contaminant,
EPA believes that it is not obligated to
do so.
Further, the statute requires EPA, in
determining whether a site is to be listed
on the NPL, to consider factors
enumerated in CERCLA sections
105(a)(8) (A) and (B). The factors include
the relative risks posed by the site. State
preparedness to assume State costs and
responsibilities, and "other appropriate
factors." The statutory directive to "take
into account to the extent possible" the
enumerated factors provides EPA with
broad discretion to weigh factors as
appropriate. Moreover, the fact that
Congress did not specify what factors
are "appropriate" supports the breadth
of EPA'i discretion. Since the proposal
of the first NPL (47 FR 58476, December
30,1982), EPA ha* considered "other
appropriate factors" to include th«
availability of other Federal authorities
to address the problem* at • rite PRP
enforcement agreements, a* well as the
willingness of a State to undertake a site
remediation, may also constitute other
appropriate factors.
Thi* interpretation is also consistent
with Congressional intent In the HOUM
Appropriations f^"prpjtt«»^ Report lor
Fiscal Year 1988, the conferees
expressed some concern over whether
Superfund is operating to produce
maximum environmental benefit foe the
investment: "The Committee wants to
reemphasire the overriding principle of
the legislation that Superfund should be
reserved for toe most ierio«s sites not
otherwise being addressed." R Rept
189,100th Cong, 1st sew. 27-28 (1967).
The view of the NPL a* a list of sites
where CERCLA action is required is
also consistent with the legislative
history surrounding the reauthorization
of RCRA. In adding new authorities to
RCRA (sections 3004(u) and 30080)) in
1984, for example, Congress recognized
that the burden of responding to the
nation's waste sites should not fall
entirely on Superfund. In its report on
the Hazardous and Solid Waste
Amendments of 1964, the House
Committee on Energy and Commerce
stated the following:
Unlen aD hazardous constituent releases
from solid w«ile management units at
permitted facilities lie addressed and
cleaned up the Committee is deeply
concerned that many more »ites will be
added to the future burden* of the Superfund
program with little prospect for control or
cleanup. The responsibility te control fuch
releases lies with the facility owner and
operator and sbouW not be shifted to the
Super fund program, particularly when A nn&l
[RCRA] permit b»s been requested by the
facility. H. RepL M6,9Kh Coag., l*t Sess. 61
(1983).
EPA believes that die use of the NPL to
identify sites that appear to warrant
remedial (or Fund-financed} action
under CERCLA, as compared to action
under RCRA or another authority, is
consistent with Congressional Intent.
Finally, EPA believes that a more
limited use of the NPL gives greater
effect to the informational and
management functions of the fist To
include on the NPL every site that has a
hazardous substance problem may give
the public the misleading impression
that every such site is awaiting CERCLA
review or attention. In fact some sites
may be addressed by on ongoing
corrective action program under another
statute such as RCRA. Listing only those
sites that appear to warrant remedial
action or funding under CERCLA wiH
also serve to make the NPL a more
useful management tool for EPA, e.g., in
setting priorities for reviewing sad
addressing site*.
A determination that a site "appears
to warrant" remedial action or funding
under CERCLA would not reflect a
judgment that remedial action should be
taken or funds sp«t at a site. As has
always been tie case, the decision to
list a site an the NPL is- not sufficiently
refined to make fiaal determinations as
to which sites POM threats qualifying for
remedial action under CERCLA (see 48
FR 40658. September 8.1983). Rather, the
finding* are meant to pinpoint problem
sftes that deserve more comprehensive
analysis under CERCLA. The approach
being diseased today would siatply add
a judgment that no other authority is
currently available to address the
problem, and thus the site should be
listed oo flic NPL for farther evaluation.
2. Current deferral policies. EPA's '
current deferral policy has been Kmfted
to sites that can be addressed by the
corrective action authorities of RCRA
Subtitle C or that are subject to
regulation by the Nuclear Regulatory
Commission. EPA is now considering,
and seeks comment on, the possibility of
deferring more generally to Federal
authorities. This would be consistent
with the view of the NPL as a list of
sites where response action is
appropriate under CERCLA.
Currently, RCRA Subtitle C facilities
are listed on the NPL only if necessary
corrective actions under RCRA are
unlikely to be performed (51 FR 21054,
June 10.1986), or if certain criteria for
listing are met (53 FR 23978, June 24.
1988). Three categories of RCRA
facilities have been identified where it is
unlikely that RCRA corrective action
will be performed; (i) Facilities owned
by persons who are bankrupt pi)
facilities that have lost RCRA interim
status and for which there are
additional indications that the owner or
operator wffl be unwilling to undertake
corrective action: and (iii) facilities.
analyzed on a case-by-case basis,
whose owners or operators have shown
an unwillingness to undertake corrective
action. On August 9.1988 (53 FR 30002-
09), EPA announced the additional
criteria that would be used in
determining if a RCRA facility was
unwffling to adequately carry out
corrective action activities, and
requested comment on criteria to be
used in determining if the owner/
operator is unable to pay for corrective
action. Oa June 24.1988 (53 FR 23078).
EPA M*p*(fa"f four other categories of
RCRA facilities that may be listed on
the NPL, Le, nan- or late-filers,
protective filers, sites with pra-HSWA
permits, and converters. RCRA Sabtitle
C facilities that meet aoy of the above
categories are appropriate for listing
provided the site meets the HRS scoring
or other eligibility requirements.
EPA's present policy for Nuclear
Regulatory Commission-licensed sites
-------
Federal Register / Vol. 53, No. 245 / Wednesday. December 21, 1988 / Proposed Rules 51417
(48 FR 40658. September 8,1983) is not to
list releases of source, by-product or
special nuclear material from any
Nuclear Regulatory Commission-
licensed facility on the grounds that the
Nuclear Regulatory Commission has full
authority to require cleanup of releases •
from such facilities, but to list such
releases from State-licensed facilities.
EPA under CERCLA does not oversee
remedial activities at deferred sites .
under either the RCRA or Nuclear
Regulatory Commission deferred listing
policy. EPA generally does not believe it
is appropriate under CERCLA to oversee
the work of other Federal agencies, or of
other authorities under EPA's
jurisdiction once a site has been
deferred. (Of course, EPA would oversee
the remedial activities at a site deferred
from listing based on a CERCLA
enforcement order.) Although a policy of
deferring to other Federal authorities
may result in variations in procedures
and extent of remedial action, it may be
appropriate to assume that the Federal
authority will adequately address the
remedial action. The Federal laws that
have been passed have undergone
national notice and comment, and are .
generally consistent in their application
from State to State. In the case of sites
deferred for action under RCRA Subtitle
C, the corrective action provisions are
substantially equivalent to those
required under CERCLA. and thus EPA
believes it is not necessary to require
compliance with CERCLA corrective
action standards as a condition of
deferral In the case of the Nuclear
Regulatory Commission sites, the
Commission has full authority and
expertise to require corrective action of
the unique waste types subject to its
jurisdiction. EPA did not deem it
appropriate to require compliance with
CERCLA standards.
Later in this section, there is
discussion of the possibility of also
deferring sites, with the State's
concurrence, subject to CERCLA section
106 enforcement agreements. This would
be deferral under CERCLA authorities,
and not deferral to another Federal
authority. This approach would be
consistent with the view of the NPL as a
list of sites that appear to warrant
CERCLA funding for remedial action.
3. Expanding the deferral policy to
other Federal authorities. EPA is today
considering extending the deferral
option to other Federal programs as
follows:
i. RCRA Subtitle D. Under the
deferred listing approach, RCRA
Subtitle D landfills would continue to be
listed on the NPL because corrective
action authorities are not currently
available for such facilities. However,
EPA proposed regulations that will
require corrective action at new and
existing Subtitle D municipal waste
landfills (53 FR 33313, August 30,1988).
These regulations are expected to be
implemented by the States when they
adopt permit programs to implement the
regulations. Only after the Subtitle D
regulations are effective would new and
existing municipal landfills generally be
deferred to the States that have adopted
State permit programs that incorporate
the revised Federal Subtitle D
regulations. Because dosed municipal
landfills wiO not be regulated by
SabCtfe D. they witf continue to be listed
on the NPL if eligible.
iLRCRA Subtitle L Under the
deferred luting approach, EPA would
defer listing sites iiiat can be addressed
by Subtitle I corrective action
authorities when those authorities take
effect Section 90O3(h) of RCRA gives
EPA authority to respond to petroleum
releases from underground storage tank
(UST) systems or to require then* owners
and operators to do so. It also
establishes a trust fund to finance some
of these activities. On September 23,
1988, EPA issued final standards for the
regulation of hazardous materials in
USTs under RCRA Subtitle L Subpart F
of those regulations requires corrective
action for "confirmed releases" from
USTs containing either hazardous
substances listed under CERCLA or
petroleum (53 FR 37082).
However, where USTs are but one of
numerous leaking units (landfills,
surface impoundments, above ground
tanks, etc.), EPA will determine whether
to defer to a mix of authorities or list
sites on the NPL
iii. Mining wastes. Under the deferred
listing approach, in cases where States
address sites using State-share monies
from the Abandoned Mine Land
Reclamation (AMLR) Fund under the
response authorities of the Surface
Mining Control and Reclamation Act of
1977 (SMCRA), the sites would be
deferred from listing.
Although the AMLR Fund was
designed primarily to address
reclamation and restoration of land and
water resources adversely affected by
past coal mining. SMCRA sections 409
(a) and (c) provide that States can use
funds to address noncoal sites if either
all coal sites have been addressed, or
the Governor of the State declares that
the noncoal project is necessary for the
protection of public health or safety. It is
important to note that generally the
decision to use AMLR funds at a
particular site resides with the State
concerned, except in one narrow
circumstance. EPA will continue to add
noncoal mining sites to the NPL should
States choose not to take action to
respond to the site under SMCRA.
States may also choose to use State-
share AMLR funds for portions of
CERCLA remedial action activities.
Sites at which only portions of the
remedial action take place with AMLR
funds would continue to be listed.
One exception to this policy is the
situation where a State has funded all of
its known coal and noncoal mining
projects, and is proposing to use its
remaining AMLR funds for impact
assistance (e,g., construction of roads,
recreation facilities, ete.J.'EPA would
not list a mining site that is: (a)
Discovered in a State where it was
previously thought that all mining
projects had been completed and impact
assistance had been granted* (b) the site
is eligible for AMLR funding, (c)
sufficient AMLR funds remain to fund
the entire response action, and (d) the
State, intends to use those funds for
impact assistance. Currently, no sites
meet this description.
iv. Pesticide sites. To date, EPA has
not finalized its policy rggn"ti'ig the
listing, of pesticide application sites;
thus, pesticide application sites will not
be generally listed on the NPL at this
time (49 FR 40320, October 15,1984).
EPA believes thai the Federal
Insecticide Fungicide andRodenticide
Act (FIFRA) may be the most
appropriate statute forcontrolling the
source of contamination resulting from
the registered use of pesticides since it
provides the authority to cancel or limit
a pesticide's use or to require label
changes when the risks associated with
use outweigh the benefits. Therefore,
FIFRA will be the primary statute used
to address pesticide problems. However,
EPA will continue to list sites resulting
from leaks, spills, and improper disposal
of pesticides. In addition, CERCLA
removal activities, such as providing
alternate water supplies, may be
initiated if it is determined that the
release or threat of release constitutes a
public health or environmental
emergency and no other party has the
authority or capability to respond in a
timely manner.
v. Other Federal authorities. It is
possible that by amendment, a Federal
regulatory authority not mentioned
above will be authorized to require
corrective action at sites currently
addressed under CERCLA If so, the
affected sites would also be addressed
under the general deferred listing
approach.
vi. Oversight of Federal authorities.
As noted earlier. EPA believes it may be
appropriate to assume that a Federal
authority will adequately address a site, .
-------
51418 Federal Register / Vol. 53, No. 245 / Wednesday. December 21, 1968 / Proposed Rules
and thus has to date deferred to RCRA
Subtitle C and Nuclear Regulatory
Commission authorities without
oversight However, the additional
Federal authorities being considered
today for deferral do not necessarily
present the same level of assurance of
remediation that meet the
environmental protection standards of
CERCLA. Thus, for response actions
under these additional Federal
authorities, it may be appropriate to
require some oversight by CERCLA
officials or a requirement that CERCLA
cleanup standards be applied. A
decision by EPA to defer to another
Federal authority for the corrective
action of a site does not constitute an
approval by EPA of the method or
extent of the response to be undertaken
by that other authority.
EPA requests comment on the
appropriateness of deferring generally to
Federal authorities, and on whether
such authorities should be required to
meet some or all CERCLA standards in
addressing deferred NPL sites.
4. Expanding the deferral policy to
State authorities. EPA believes it is
appropriate at this time to consider
broadening the scope of the deferral
policies to include State authorities in
addition to Federal authorities in
recognition of other possible avenues of
response action.
EPA has already instituted a policy of
deferring non-Federal RCRA sites to
States that are authorized to carry out
the Subtitle C corrective action
authorities of RCRA (51 FR 21054, June
10.1986). However. EPA currently does
not defer to other State authorities even
if they have authority to achieve some
corrective action at contaminated sites.
The present framework of the NPL
process has not precluded States from
taking independent enforcement
authorities during CERCLA remedial
activities, and a State can request the
enforcement lead at sites on the NPL
(Under any of the proposed approaches
for State deferral, a State would retain
the option of having a State-lead
enforcement site listed. Subpart F of
today's proposal discusses EPA's
criteria for designating a State as the
lead agency. The Subpart F criteria are
intended solely for State-lead actions
under CERCLA.)
EPA has, in the past, listed sites being
addressed under State authorities so
that it could ensure that similar sites
were remediated to similar levels, and
in a manner consistent with the NCP.
Further, public participation. ATSDR
health assessments, and oversight by
EPA is assured for all NPL sites. In
addition, affected communities are
eligible to apply for Technical
Assistance Grants (TAGs) at sites on
the NPL (53 FR 9471, March 24,1988).
and mixed funding settlements for
remedial action are possible.
EPA is now considering deferring to
State authorities more generally. EPA
recognizes that many more sites need to
be addressed than present CERCLA
resources can accomodate; by deferring
•ome problem sites to the States, EPA
believes more overall response actions
can be accomplished more quickly, and
EPA can direct its resources to sites that
otherwise would not be addressed. As
with any deferral, no CERCLA funds
would be available to the State for the
site being deferred, although EPA may
-exercise its enforcement or response
authorities at that site. Moreover, the
State may be required to obtain on-site
permits, as permit exemptions are only
available for CERCLA actions.
EPA notes that even if a State has
authorities applicable to Federal
facilities, the remediation of such sites
will not be deferred, and Federal
facilities will continue to be listed on the
NPL, consistent with CERCLA section
120(d)(2).
EPA believes it may be appropriate to
defer listing sites on the NPL to allow
the States to fully utilize corrective
action authorities under their own
programs when they have programs in
place for obtaining some corrective
action at contaminated .sites. This
approach is consistent with the view of
the NPL as a list of sites where response
action is appropriate under CERCLA,
and the site is not being otherwise
addressed.
A deferral would not be a delegation
of any CERCLA authority, and it is not
intended to ensure equivalence to
CERCLA. By deferring to a State
authority. EPA is not approving the
remediation to be undertaken by that
State authority. In considering this
deferral policy, EPA recognizes that
corrective actions under State
authorities may not follow the
procedures and requirements of the
NCP, and in some cases, this may result
in differences, e.g., some States may
have more stringent corrective action
standards than EPA while other States
may have less stringent corrective
action standards. Requiring State
authorities to conform strictly to NCP
requirements might result in fewer
States choosing to undertake a site
remediation that could be deferred. EPA
requests comment on the level of
remediation that should be required for
sites deferred to States.
It is important to note in instances
where State authorities intend to
recover their costs from responsible
parties under CERCLA section 107 for
sites subsequently listed on'the NPL,
response actions at these sites may not
be "inconsistent with" the NCP.
Although EPA does not intend to
apply all of the procedures and
requirements of the NCP to deferred
sites, EPA strongly believes that the
general public participation procedures
of the NCP are a necessary part of any
State deferral policy. The NCP has
specific requirements to inform the
community of releases and planned
actions at a site, -and to provide the
public an opportunity to comment on
removal and remedial plans. However,
EPA recognizes that specific
requirements to involve a community in
remediation decisions may or may not
exist under State authorities. Therefore,
EPA believes if sufficient public'
participation requirements do not
already exist under the State authority,
the State should be required, as a
condition of deferral, to develop a site-
specific public participation plan to.
inform the community of remediation
progress and involve the community in
the remedy selection.
EPA is requesting comment in general
on the issue of deferring to State
authorities, and requests comment on
two options for implementing deferral to
States: (i) Deferral based upon a State
petition to EPA requesting deferral; and
(ii) deferral based upon a State's
certification of its commitment and
ability to address the site according to
certain CERCLA standards. EPA intends
to keep the current limited State deferral
policy, i.e., deferral lo authorized State
RCRA authorities, in effect while public
comments are reviewed. If a more
expanded State deferral policy is
implemented, EPA would apply it
prospectively to sites as they are
proposed for listing (see discussion of
final sites below).
i. Option 1—Deferral based upon a
State petition. Under this option, EPA
would defer sites from listing on the NPL
in cases where the State petitioned EPA
for deferral. Specifically, once EPA
believes that a site scores above the
MRS cutoff, or otherwise meets
eligibility requirements for listing sites
on the NPL, EPA would consider
deferring the site if the State petitions
EPA certifying that
a. The State has provided reasonable
notice to the public of its intent to
petition for deferral of a site, and its
plans and general schedule for
corrective action under State laws;
b. The State will provide for public
participation in the remedy selection
process; and
c. If requested by the public, the State
would hold a public meeting at which it
-------
Federal Register / Vol. 53. No. 245 / Wednesday, December 21, 1988 / Proposed Rules 51419
discussed its decision to petition for
deferral.
Under this option, the State would
explain to the public and EPA its plans
and general schedule for corrective
action under State laws. EPA
specifically requests comment on
whether the State should be required to
hold a public meeting or if such meeting
should be held only if requested. This
option represents a total deferral; it is
not intended to ensure equivalence to .
CERCLA. EPA believe* that thi* option
could maximize the overall number of
corrective actions that occur by-allowing
CERCLA funds and resources, to be .
directed to other sites at which no -
response action by State authorities is
anticipated.
This option would have no
requirements or obligations for oversight
by EPA. However. EPA would still have
the flexibility to exercise CERCLA
authorities to achieve corrective action
at sites deferred from Hating, if
necessary. EPA would reserve the light
to terminate the deferral status of a site
and take the necessary procedural steps
to list the site on the NPL where the .
State revises its earlier position and
requests that the site be considered for
listing.
iL Option 2—Deferral based upon a
State certification. This option would
defer individual sites from listing on the
NPL in cases where the State provides a
more detailed certification of its ability
and commits to perform corrective
action according to certain CERCLA
standards. Specifically, once EPA
believes that a site scores above the
HRS threshold for listing, or otherwise
meets eligibility requirements for listing
sites on the NPL, EPA would consider
deferring the site if the State
demonstrates and certifies in writing to
EPA the following:
a. The existence of State regulatory
response or enforcement authorities that
are sufficient to achieve corrective
action.
b. Sufficient State personnel and
funds committed for either: (1)
enforcement actions, compliance
monitoring, and oversight of PRP
remediation, or (2) State-implemented
corrective action.
c. Satisfactory schedules with
milestones to complete the enforcement
or corrective action process.
d. Commitment to provide status
reports to EPA and the public. -
e. Provision for public participation in
the remedy selection process, and
f. Commitment to select a remedy that
is consistent with the cleanup standards
of section 121 of CERCLA.
This option accomplishes the overall
goal of increasing the States'
involvement in the corrective action
process, thereby making CERCLA
resources available for other sites. It
would require greater EPA oversight
than the first option, and requires
remediation consistent with standards
in section 121 of CERCLA.
As discussed in the first option. EPA
would retain its right to apply CERCLA
authorities at deferred sites, if
necessary. Additionally, EPA would
consider terminating the deferral status
of a site and taking the necessary
procedural steps to list the cite on the
NPL if any of the commitments in the
State certification were not met .
For both options, EPA is considering
two management approaches to account
foe sites that are deferred The first
approach would be to propose deferral
site candidates for listing on the NPL,
and solicit public comment on the HRS
•core and the deferral issue. If a
decision is made to defer, the sites
would remain OQ the proposed NPL in a
stayed, deferred status. This would
provide the public with information on
the sites EPA has deferred from listing,
and would allow EPA to engage in final
rulemaldng to place the site on the NPL
in an expeditious manner if termination
were necessary. (In such a case, EPA
would request c"m">ervt on termination
of the deferral prior to promulgating the
site on the final NPL.)
If deferred sites ate proposed on the
NPL in a stayed, deferred status. ATSDR
health assessments would be performed
at those sites, and affected communities
would be eligible to apply for TAGs.
EPA requests comments on whether it is*
appropriate to issue TAGs at these sites.
since one purpose of the deferral policy
is to direct Fund monies to sites that
otherwise cannot be addressed by
authorities other than CERCLA.
The second management approach
EPA is considering would be to defer
sites to States prior to, and without NPL
proposal. This could conserve the
resources that EPA would use for
proposal so that they could be applied to
other sites. Under this approach, the
responsibility to inform the public about
deferred sites could be left solely to the
States through the petition or
certification procedures discussed
above. Alternatively. EPA could retain
the role of informing the public through
a separate, non-NPL listing in the
Federal Register of deferred sites. In
either case, by not first proposing the
site, EPA would have to propose the site
to the NPL and take comment on the
HRS score before addressing a site
under the CERCLA remedial program if
deferral termination is necessary. (Of
course, the HRS score would not change
as a result of any response actions taken
by the State during the period of
deferral, consistent with EPA's past
practice explained at 48 FR 40664,
September 8,1983). However. EPA could
apply certain CERCLA response
authorities to the sites prior to their
listing, including removal actions and
remedial investigations.
Further, due to the absence of NPL
proposal under this approach, ATSDR
would not be required to perform a
health assessment at the deferred site.
(CERCLA authorizes ATSDR to perform
health assessments in response to
requests from the public. Petitions for
health assessments will require data
showing a high probability of the
existence of a current or potential health
problem.) In addition. TAGs would not
be available (CERCLA does not
authorize TAGs at non-NPL sites) and
the possibility of mixed funding
settlements for remedial actions at such
sites would be precluded.
EPA specifically requests comment on
whether a site deferred to a State should
be proposed to the NPL in a "deferred"
category, or whether the public should
be informed of the deferral through a
non-NPL notification or State action. •
EPA will consider comments on the
current policy and the two options for
deferral to State authorities. If EPA
determines that it is appropriate to
revise the current policy, EPA may
adopt one of the options described or a
combination of both.
5. Sftes regulated by maltiple
authorities. EPA recognizes that there
may be some sites that are regulated by
a mix of authorities. In cases such as
these, EPA requests comment on
whether the site should be deferred to a
mix of authorities, or whether EPA
should address the site comprehensively
under CERCLA.
6. Deferral of sites with agreements
under CERCLA enforcement authorities.
Currently, it is EPA's policy to keep
enforcement-lead sites on the NPL until
the selected remedy is complete in order
to ensure that CERCLA Fund resources
are available to quickly achieve
mitigation if the PRPs fail to comply
with CERCLA orders or enforcement
agreements, and to keep the public
apprised of remedial progress at the site.
This policy also provides for the
potential availability of TAGs. the
performance of ATSDR health
assessments at affected sites, and
allows for the possibility of mixed
funding for remedial actions.
However, hi addition to the State
deferral options previously discussed,
EPA is also considering options for not
listing, or deferring from listing sites
where PRPs enter into Federal
-------
51420 Federal Register / Vol. 53, No. 245 / Wednesday. December 21. 1988 / Proposed Rules
enforceable agreements for site
remediation under CERCLA. A policy of
not listing sites where enforceable
cleanup orders or agreements under
CERCLA are in place may facilitate EPA
efforts to expeditiously obtain such
enforceable agreements for remedial
action at sites that would otherwise be
listed on the NPL and evaluated under
the CERCLA remedial program. EPA
would retain approval authority over
any remedial action at sites deferred
from listing based on an enforceable
CERCLA order or agreement State
concurrence would be necessary for
deferring sites under this policy.
Although EPA has not yet reached a
decision on this issue, the options being
considered today are within EPA's
discretion under the statute. CERCLA
section 104(a)(l) authorizes EPA to
respond to the release or threat of
release of hazardous substances, but
provides that a PRP may be allowed to
carry out the action if the President or
his delegate "determines that such
[removal and remedial] action will be
done properly and promptly by the
owner or operator of the facility or
vessel or by any other responsible
party." In addition, CERCLA section
105(a)(8)(A) directs EPA to "the extent
practicable, to tak[e] into account"
appropriate factors in developing the
NPL, giving EPA broad discretion to
consider such factors as PRP remedial
action agreements.
EPA seeks comment on two principal
options: (i) Deferral to CERCLA
enforcement authorities prior to NPL
proposal based on an agreement to
carry out the EPA-selected remedial
design/remedial action (RD/RA)
pursuant to a consent decree, and (ii)
deferral at the time of proposal based on
an agreement to conduct a remedial
investigation/feasibility study (RI/FS)
for that site, with the proposed site
dropped if the PRP subsequently agrees
to perform the RD/RA pursuant to a
consent decree. Both options will
continue to assure the opportunity for
public comment on the remedy selected
by EPA under the CERCLA consent
decree. This CERCLA enforcement
authority deferral policy being
considered today will not be
implemented until public comments
have been considered. EPA intends to
keep the current deferral policies in
effect while comments are reviewed. If
this deferral policy is issued, EPA plans
to apply it prospectively (see discussion
of final sites below). These options, and
variations of these options, are
discussed below.
i. Option 1—Pre-proposal deferral
based on agreement to perform RD/RA.
Under this option, EPA would, with the
concurrence of the State agency, defer
listing of a site if a PRP were willing to
enter into a consent decree with EPA for
the total remediation of a site prior to
the site's proposal for NPL listing.
However, EPA would not delay the
normal process for assessing sites.
developing HRS scores, and proposing
on the NPL Only those sites for which a
consent decree is signed prior to
proposal of the site on the NPL would be
considered.
Because completed preliminary .
assessments and site investigations are
publicly available documents, EPA
believes that many PRPs will have
adequate information concerning the
potential listing of a site on the NPL in
order to decide whether to begin
negotiations of a consent decree with
EPA for remediation of a site. However,
EPA intends to continue its policy of not
releasing draft HRS scores prior to a
decision to propose a site for the NPL
EPA would simply acknowledge that a
site is being considered for listing on the
NPL
Under this option, more consent
decrees providing for remediation may
be signed, freeing CERCLA Fund
resources for remedial action at other
sites. (CERCLA resources would be
required for oversight of sites deferred
based on an agreement under CERCLA
enforcement authorities.) Moreover,
these consent decrees would represent
enforceable agreements under CERCLA
for the entire response effort, including
remedial action, and would provide the
necessary legal assurances that a
protective remedy, selected and
approved by EPA, would proceed in a
timely manner. Further, EPA would
select the remedy under this approach,
and the full remedial process described
under Subpart E of the NCP. including
the public participation requirements,
would be required; all consent decrees
would also be published in the Federal
Register before entry by the court
'This option would allow PRPs, by
agreeing to an enforceable consent
decree under CERCLA to perform the
total remediation, to avoid the listing of
their site on the NPL However, at this
stage in the remedial process, the actual
remedy to be implemented will be
unknown and the PRPs may be reluctant
to agree to implement a remedy of
unknown cost and dimensions. Even if
the PRPs agreed to implement the EPA-
selected remedy, they might be reluctant
to waive their rights to contest EPA's
choice of remedy in the context of
dispute resolution under the consent
decree, which process may involve
further resource commitment by EPA.
This option might have limited
applicability at sites with multiple
parties. Because EPA does not intend to
implement a formal process prior to
proposal to notify parties of their
potential responsibility at sites, there
may not be adequate time for numerous
PRPs to agree to implement the site
remedy to be selected by EPA in the
future.
If a PRP fails to complete the remedy
and the enforcement mechanisms
available under the consent decree are
not successful (e.g., if the PRP is
financially unable to continue the work).
Fund-financed action could not be taken
until the site was listed on the NPL
(although financial assurances such as
performance bonds could also be
required under this option to ensure that
remedial action would continue).
Under this approach, because sites
would not be listed or proposed for
listing on the NPL TAGs would not be
available and ATSDR health
assessments would not be required (see
State deferral discussion).
As part of this option, EPA is also
seeking comment on the appropriate
method for identifying problem sites to
the public if those sites are not proposed
for the NPL because of deferral to a
CERCLA enforcement agreement One
alternative is to publish a notice in the
Federal Register identifying sites that
are to be deferred prior to proposal on
the NPL Another alternative is to notify
the affected public of the deferral by
publication in a local newspapers) of
general circulation. Of course, once a
consent decree is lodged, the public will
be notified (pursuant to 28 CFR 50.7),
and will have an opportunity to
comment on the remedy that EPA
ultimately selects.
ii. Option 2—Proposal and deferral
based on an agreement to conduct RI/
FS. EPA is also considering an option
under which EPA would propose a site
for listing on the NPL but would defer
final listing of the site if the PRPs agree
to perform the RI/FS under an
enforceable CERCLA agreement
(administrative order or consent decree).
The site would remain on the proposed
NPL (in a stayed, deferred status) until
the RI/FS is completed, the public
comments on the remedy are received,
and the record of decision is issued. If
the PRPs agree to implement the remedy
selected in the record of decision under
an enforceable consent decree or order
under CERCLA. the site would be
dropped from the proposed list; if they
do not, EPA would proceed to list the
site on the final NPL Adoption of this
option would make the final NPL a list
of sites where CERCLA Fund-financed
-------
Federal Register / Vol. 53. No. 245 / Wednesday. December 21, 1988 / Proposed Rules , 51421
action appears to be warranted, rather
than a list of sites where CERCLA
action, whether Fund-financed or
enforcement lead, appears to be
warranted.
Because sites would be formally
proposed for listing, the PRPs would be
fully informed of the opportunity of
entering into an enforceable CERCLA
agreement. This approach may
encourage PRP performance of RI/FSs
and RD/RAs thus freeing CERCLA Fund
monies for other sites. In addition,
because deferral candidates would
remain on the proposed NPL until a final
consent decree is entered, EPA can
proceed rapidly to final listing and site
remediation using the Fund in the event
the PRPs do not agree to implement the
selected remedy. This option would also
ensure that EPA has substantial input
into, and control over, the PRP-
conducted RI/FS or RD/RA, since both
efforts would be completed under the
terms of enforceable agreements under
CERCLA, and with EPA oversight.
The process contemplated in this
option would allow a PRP to avoid
listing on the final NPL by agreeing to
undertake a remedial response pursuant
to an enforceable agreement under
CERCLA. In addition, in contrast to the
first option (defer prior to proposal), the
PRPs are entering into agreements in a
stepwise fashion and are not committing
to final site remediation until the
remedial options have been fully
explored if necessary.
If the PRP does not consent to
implement the remedy identified as a
result of the RI/FS. Federal funds could
not be spent for the remedial action until
the site was listed as final on the NPL.
However, additional planning or
removal actions under section 104 could
take place if necessary.
A variation on this option would be
that, rather than proposing the site for
listing on the NPL, the site would be
included on a special list pending the
PRPs entering into a consent decree.
This variation presents a greater risk of
delay in remedial action because if the
PRP fails to sign a consent decree for
cleanup, the site must be first placed on
the proposed NPL, comment taken on
HRS scoring, and then placed on the
final list Additionally, because sites
would not be listed or proposed for
listing on the NPL under this option.
TAGs would not be available and
ATSDR health assessments would not
be required, and the possibility of mixed
funding settlements for remedial actions
at such sites would be precluded (see
State deferral discussion).
EPA will consider comments on the
current policy and the two options for
deferral to enforcement authorities. If
EPA determines that it is appropriate to
revise the current policy of not deferring
to PRPs entering into enforcement
agreements, EPA may adopt one of the
options described above or a
combination of both.
7, Deletion of proposed and final sites
based upon deferral to other authorities.
In today's notice, EPA is requesting
comment on deferring the placement of
sites on the NPL when Federal or State
authorities are available to address
contamination at the site, as well as
deferring sites where the PRPs have
•igned enforceable CERCLA consent
orders for remedial action. EPA is also
considering whether this policy should
be applied to sites on the final NPL, i.e..
whether final NPL sites should be
deleted if they are being addressed by
another authority or under a CERCLA
consent order. On August 9,1988 (53 FR
30005), EPA announced that it would not
systematically apply the RCRA deferral
policy in certain limited circumstances.
As with the general deferral policies
discussed in today's notice, die deletion
of final sites would tend to free
CERCLA's resources for use in
situations where another authority is not
available, and thus may help maximize
the overall number of response actions.
As stated with respect to the RCRA
deferral policy, EPA does not believe it
is appropriate to systematically review
the final sites already on the NPL to see
whether any are being addressed, or
may be addressed, under another
statute or under a CERCLA consent
order. It is EPA's opinion that such a
review would be time consuming.
thereby detracting from the more
important work of the CERCLA
program, and could disrupt work at sites
where CERCLA actions have already
begun. However, in certain limited
circumstances, EPA believes that it may
be appropriate to remove a site from the
final NPL before a cleanup is complete if
EPA is satisfied that the site is being or
will be addressed under another statute
or authority.
EPA believes that it is appropriate to
apply different and more stringent
criteria in actions to delete based on
deferral to other authorities for sites that
are on the final NPL, as compared to
sites that are merely candidates for
deferral prior to NPL listing. For final
NPL sites, EPA has completed its listing
process, identified the site as a potential
problem requiring further attention, and
has often commenced CERCLA actions.
In addition, the listing itself has created
public anticipation of • response under
CERCLA. Thus, EPA and the public
have a significant interest in seeing that
these sites are addressed. EPA does not
believe that applying different criteria to
final sites that may be deleted will
cause any significant prejudice to any
party; as EPA has stated repeatedly in
the past, inclusion on the NPL does not
determine the liability of any party for
the cost of any response actions that
may be taken at a site (48 FR 40659,
September 8,1983).
Therefore, EPA is considering
applying this policy on a case-by-case
basis in the following limited
circumstances. A site may be an
acceptable candidate for deletion based
upon deferral to another authority
where EPA is presented with evidence
that:
i. A site on the NPL Is currently being
addressed by another regulatory
authority under an enforceable order or
permit requiring corrective action or the
PRPs have entered into a CERCLA
consent order to perform the RD/RA;
ii. Response is progressing adequately,
iii. Deletion would not otherwise
disrupt an on-going CERCLA response
action; and
iv. All criteria for deferral to that
authority have been met (i.e., the
requesting party must meet all
conditions for deferral to that authority
in addition to the three specific criteria
set out above for deletion based upon
deferral).
EPA would generally consider it to be
a disruption of a CERCLA remedial
action to defer a final NPL site in
situations where funds and/or personnel
have been committed for further action
such as an RI/FS, remedial design or
remedial construction activity.
To date, sites have been deleted from
NPL only "where no further response is
appropriate," such as where remedial
actions have been completed either by
the PRPs or through Fund-financed
response, or where no remedial
measures have been deemed necessary
(current NCP i 300.66(c){7). reproposed
today as £ 300.420(e)(l)). In order to
delete sites for deferral it may be
necessary to adopt additional deletion
criteria or to reinterpret the existing
criteria to apply to instances where
another authority is addressing the site,
and thus, no further response is
appropriate under CERCLA (or,
alternatively, that no further response is
necessary using CERCLA fund's). As
with any deletion, a deletion based upon
a decision to defer would be entered
only after a notice of intent to delete
(and defer) is filed in the Federal
Register and comment is taken. If EPA
later determines that CERCLA remedial
action is necessary at the site, the site
would remain eligible for CERCLA
Fund-financed remedial action and
relisting on the NPL without the
-------
51422 Federal Register / Vol. S3, No. 245 /Wednesday. December 21, 1968 / Proposed Rules
requirement to reapply the HRS (current
NCP i 300.66(c)(8), reproposed today as
( 300.420(eX2)).
EPA requests comment on the policy
of deleting final sites based upon
deferral to other authorities, and on the
criteria that should be applied in
reviewing petitions for such deletions.
8. Effective date of policy. No deferral
policy being considered today will be
implemented until public comments
have been considered. EPA intends to
keep the current deferral policies (e.g.,
RCRA and Nuclear Regulatory
Commission) in effect while such
comments are being reviewed.
Section 3O0.43O Remedial
Investigation/Feasibility Study (RI/FS)
and Selection of Remedy.
Today EPA is proposing major
revisions to Subpart E to incorporate the
new requirements of the 1986 CERCLA
reauthorization amendments into
existing procedures, and to reflect
program management principles EPA
intends to follow in order to promote the
efficiency and effectiveness of the
remedial response process. Chief among
these principles is a bias for action.
The 1986 CERCLA amendments
include a number of requirements
related to the remedial alternatives
development and remedy selection
process. Section 121 of the statute
retains the original CERCLA mandates
to select remedies that are protective of
human health and the environment and
that are cost-effective. In addition,
today's proposed revisions address the
rev/ statutory requirements for remedial
actions to attain the applicable or
relevant and appropriate requirements
of other Federal and State
environmental laws, the mandate to
utilize permanent solutions and
alternative treatment technologies or
resource recovery technologies to the
maximura extent practicable, and the '
preference for remedies that employ
treatment that permanently and
significantly reduces the toxicity,
mobility, or volume of hazardous
substances, pollutants, or contaminants
as their principal element over those
that do not.
The overarching mandate of the
Superfund program is to protect human
health and the environment from the
current and potential threats posed by
uncontrolled hazardous waste sites.
This mandate applies to all remedial
actions and cannot be waived. The
mandate for remedies that protect
human health and the environment can
be fulfilled through a variety of means,
including the destruction, detoxification.
or immobilization of contaminants
through the application of treatment
technologies, and by controlling
exposure to ftorttflminiPtff through
engineering controls (such as
containment) and/or institutional
controls which prevent access to
contaminated areas.
The CERCLA qT">^n">n*tt emphasize
achieving protection that will endure
over long periods of time by mandating
the use of permanent solutions to the
TTmytmiim extent practicable and by
specifying long-term effectiveness
factors that must be assessed under
section 121(bKD (A-G). The
amendments also express a clear
preference for achieving this protection
through the use of treatment
technologies as the principal element of
remedies. These provisions reflect the
belief that treatment that destroys or
reduces the hazardous properties of
contaminants (e.g., toxicity or mobility)
frequently will be required to achieve
solutions that afford a high degree of
permanence. The highest degrees of
permanence are clearly afforded by
remedies that are not heavily reliant on
long-term operation and maintenance
following the completion of an
implemented action.
In addition to these new mandates,
the amended CERCLA retained the
mandate for selecting remedies that ere
cost-effective. Although cost-
effectiveness cannot be used to select a
nonprotective remedy, this mandate
does require EPA to evaluate closely the
costs required to implement and
maintain a remedy and to select
protective remedies whose costs are
proportionate to their overall
effectiveness. This mandate establishes
efficient use of resources as a standard
for Superfund remedial actions and
reflects Congress' intent to fia*'"""1 the
use of the Fund across a Large number of
sites. EPA intends to focus available
resources on selection of protective
remedies that provide reliable, effective
response over the long-term.
This combination of mandates (Le.,
remedies that provide permanent
solutions to the maximum extent
practicable, the preference for treatment
as a principal element, and cost-
effectiveness) creates dynamic tensions
for the Superfund program. In today's
proposal EPA extends some of the
fundamental features of the current NCP
in proposing to resolve these competing
goals through a process that examines
the characteristic* of cites and
alternative approaches for remediating
the problems those sites pose. This
process evaluates alternative hazardous
waste management strategies using nine
criteria related to CERCLA's mandates
to determine advantages and
disadvantages of the various remedial
action alternatives. This analysis
identifies site-specific trade-offs
between options, and facilitates the risk
management decision which is the
fundamental nature of remedy selection
decisions at CERCLA sites. In balancing
trade-offs among options and selecting
the protective alternative which seems
to offer the best combination of
attributes in terms of the nine criteria
and is thus most appropriate for a given
cite. EPA fa exercising the discretion
granted by CERCLA to determine the
maximum extent to which permanent
solutions and treatment or resource
recovery technologies can be
practicably utilized in a cost-effective
manner.
EPA believes that die solutions that
are most appropriate for a given site will
vary depending on the size, complexity,
and location of the site, the magnitude
of the threats posed, the timing of the
availability of suitable treatment
technologies, and the proximity of
human and environmental receptors,
among other factors. While the CERCLA
amendments strongly encourage the use
of treatment technologies in CERCLA
remedial actions, they allow for
discretion in dealing with site
circumstances and technological,
economic, and implementation
constraints that place practical
limitations on the use of treatment
technologies. Treatment is most likely to
be practicable for wastes that cannot be
reliably controlled in place, such as
liquids, highly mobile materials (e.g.,.
solvents), and high concentrations of
toxic compounds (e.g., several orders of
magnitude above levels that allow for
unrestricted use and unlimited
exposure). Treatment is less likely to be
practicable where sites have large
volumes of low concentrated material,
or where the waste is very difficult to
handle and treat (e.g., mixed waste of
widely varying composition). Specific
situations that may limit the use of
treatment could include sites where: (1)
Treatment technologies are not
technically feasible or are not available
within a reasonable timeframe; (2) the
extraordinary size or complexity of a
site makes implementation of treatment
technologies impracticable; (3)
implementation of a treatment-based
remedy would result in greater overall
risk to human health and the
environment due to risks posed to
workers or the surrounding community
-during implementation; or (4) severe
effects across environmental media
resulting from implementation would
occur. In addition, there are CERCLA
sites or portions of sites where the
concentrations of the wastes are at low
-------
Federal Register / Vol. 53, No. 245 / Wednesday, December 21, 1988 / Proposed Rules 51423
levels or are substantially immobile, and
where the wastes can be reliably
contained over a long period of time
through the use of engineering controls.
In these situations, treatment may not
always offer a sufficient degree of
increased permanence and long-term
protection to be cost-effective.
CERCLA sites are frequently complex
and involve a number of different
problems. EPA believes that it often will
be the case that the most appropriate
solution for a site will involve a • ;
combination of methods of achieving
protection of human health and the
environment Most frequently, EPA
expects that treatment of the principal •
threats posed by a site, with priority
placed on treating highly toxic, highly - ••
mobile waste, will be combined with
engineering controls (such as
containment) for treatment residuals
and untreated waste." •-•-.••
As appropriate, institutional controls
such as water use and deed restrictions
may supplement engineering controls for
short- and long-term management to
prevent, or limit exposure, to hazardous
substances, pollutants, or contaminants.
Institutional controls will be used
routinely to prevent exposures to
releases during the conduct of a
remedial investigation and feasibility
study, during remedial action ' •
implementation, and as a supplement to
engineering controls designed to manage
wastes over time. The use of v '• ' .'
institutional controls to restrict use or '-
access should not, however, substitute
for active response measures (e.g.,
treatment and/or containment of source
material, restoration of ground waters to
their beneficial uses] as the sole remedy
unless such active measures are
determined not to be practicable, based
on the balancing of trade-offs among
alternatives that is conducted during the
selection of remedy. These trade-offs, • '
based on the nine criteria, are identified
during the analysis of alternatives.
EPA recognizes that the approach
presented in today's proposed rule is not
the only approach possible for resolving
the competing goals and requirements of
the Superfund program. Therefore, later
in this preamble EPA presents four •
alternative approaches. Two of those * •
alternatives are site-specific balancing '
approaches that, while similar to the one
proposed in today's rule, differ primarily
in terms of how they organize the
evaluation criteria, and how they
incorporate the statutory requirements
to select remedies that are cost-effective
and that use permanent solutions and
treatment technologies to the maximum
extent practicable. The two additional
a'ternatives presented later represent
different Approaches to remedy •
•election, based on different views of
the goals and purposes of the Superfund
program. EPA solicits comments on
these four alternative approaches as
well as the approach presented in
today's proposed rule.
A, Program Management Principles
Today's proposal also includes
revisions to the 1985 NCP that are not
mandated by CERCLA. These revisions
reflect principles by which EPA intends
to manage the Superfund remedial
program. These principles stem from
experience gained over the first eight
years of the program. In managing
CERCLA sites, EPA must balance the '-
goal of definitively characterizing site
risks and analyzing alternative remedial
approaches for addressing those threats
in great detail, and the desire to
implement protective measures quickly.
EPA intends to balance these goals with
a bias for initiating response actions
necessary or appropriate to eliminate,
reduce, or control hazards posed by a
site, as early as possible. EPA will
promote the responsiveness and
efficiency of the Superfund program by
encouraging action prior to or
concurrent with conduct of an RI/FS as
information is sufficient to support
remedy selection. While the bias for
action promotes multiple actions of
limited scale, the program's ultimate '
goal continues to be to implement final *
remedies at sites.
Early action may be taken at a site via
enforcement or Fund-financed activities
taken under removal or remedial
authorities. In deciding between using
removal and remedial authorities, the
lead agency should consider (i) The
criteria and requirements for taking
removal actions in 5 300.415 of today's
proposed rule; (ii) the statutory
limitations on removal actions and the
criteria for waiving those limitations;
(iii) the availability of resources; and the
(iv) urgency of the site problem. Specific
actions that may be taken under •
removal authorities include emergency
action, non-time-critical removals, and
expedited response actions. A
discussion of these activities is included
in the § 300.415 preamble section. Early
actions using remedial authorities are
initiated as operable units. •" • •'' • ••'•
The Superfund program has long
permitted remedial actions to be staged
through multiple operable units.
Operable units are discrete actions that
comprise incremental steps toward the
final remedy. Operable units may be
actions that completely address a
geographical portion of a site or a
specific site problem (e.g., drums and
tanks, contaminated ground water) or
the entire site. Operable units include
interim actions (e.g., pumping and
treating of ground water to retard plume
migration) that must be followed by
subsequent actions which fully address
the scope of the problem (e.g., final
ground water operable unit that defines
the remediation level and restoration
timeframe). Such operable units may be
taken in response to a pressing problem
that will worsen if unaddressed. or
because there is an opportunity to
undertake a limited action that will
achieve significant risk reduction
quickly.
The appropriateness of dividing
remedial actions into operable units is
determined by considering -the.
interrelationship of site problems and
the need or desire to Initiate actions
quickly. To the degree that site problems
are interrelated (e.g- contaminated soils
and ground water), it may be most
appropriate to address the problems
together. However, where problems are
reasonably severable, phased responses
implemented through a sequence of
operable units may promote more rapid
risk reduction. • - ~. :
Related to the bias for action is the
principle of streamlining, which EPA
intends to emphasize in managing the
Superfund program as a whole and in ,
conducting individual remedial action
projects. On a project-specific basis,
recommendations to ensure that the RI/
FS and remedy selection process is
conducted as effectively and efficiently
as possible include:
a. Focusing the remedial analysis to
collect only additional data needed to
develop and evaluate alternatives and
to support design;
b. Focusing the alternative
development and screening step to
identify an appropriate number of .
potentially effective and implementable
alternatives to be analyzed in detail.
Typically, a limited number of •
alternatives will be evaluated that are -
focused to the scope of the response /
action planned;
c. Tailoring the level of detail of the
analysis of the nine evaluation criteria
(see below) to the scope and complexity
of the action. The analysis for an • '
operable unit may well be less rigorous
than that for a comprehensive remedial
action designed to address all site
problems; • •
d. Tailoring selection and
documentation of the remedy based on
the limited scope or complexity of the
site problem and remedy. In particular,
operable units initiating Interim • -
remedies may require less complex
justifications because they are limited
actions that will only require minimum
-------
51424 Federal Register / VoL 53, No. 245 / Wednesday, December 21, 1988 / Proposed Rules
documentation of statutory findings .
based on the presumption that . - •
additional response will further address
the site problem;
e. Accelerating contracting procedures
and collecting samples necessary for
remedial design during the public
comment period.
Although the level of effort and extent
of analysis required for an RI/FS will
vary on a site-specific basis, the
procedural steps needed for remedy
selection do not These steps, however.
may be less extensive depending on the
complexity and scope of the problem
being addressed. Regardless of the level
of effort and analysis on a specific RI/
FS, the lead agency is responsible for
ensuring that all procedural
requirements are met, including support
agency participation, soliciting public
comment, developing an administrative
record, and preparing a record of '
decision.
Circumstances that may be
particularly conducive to a more '
streamlined analysis during an RI/FS
include: ~
(1) Site problems are straightforward
such that it would be inappropriate to
develop a full range of alternatives. For
example, site problems may only
involve a single group of chemicals that
can only be addressed in a limited
number of ways, or site characteristics -
(e.g., fractured bedrock) are such that
available options are limited. To the
extent that obvious, straightforward -
problems exist, they may create
opportunities to take actions quickly
that will afford significant risk
reduction;
(2) The need for prompt action to
bring the site under initial control
outweighs the need to examine all
potentially appropriate alternatives;
(3) ARARs, guidance, or program
precedent indicate a limited range of
appropriate response alternatives (e.g,
PCS standards for contaminated soils,
Superfund Drum and Tank Guidance,
BDAT requirements);
(4) Many alternatives are clearly
impracticable for a site from the outset
due to severe implementability problems
or prohibitive costs (e.g., complete ,
treatment of an entire large municipal
landfill) and need not be studied in
detail; and
(5) No further action or extremely
limited action will be required to ensure
protection of human health and the • .
environment over time. This situation
will most often occur where • removal
measure previously has been taken.
The bias for action and principles of
streamlining are considered throughout
the life of a remedial project but begin to
be evaluated as site management
planning is initiated. Site management
planning is a dynamic, ongoing, and
informal strategic planning effort that
generally starts as soon as sites are
proposed for inclusion on the NFL and
continues through the RI/FS and remedy
selection process, remedial design and
remedial action phases, to deletion from
the NPL This strategic planning activity
is the means by which the lead and
support agencies determine the types of
actions and/or analyses necessary or
appropriate at a given site and the
optimal timing of those actions. At the
RI/FS stage, this effort involves review
of existing site information, .
consideration of current and potential
risks the site poses to human health and
the environment, an assessment of
future data needs, understanding of
inherent uncertainties in the process,
priorities among site problems and the
program as a whole, and prior program
experience. The focus is on taking action
at the site as early as site data and
information make it possible to do so.
B. Major Revisions to the RI/FS and
Selection of Remedy Process
The RI/FS process proposed today
incorporates statutory requirements,
reflects the program management
principles of the bias for action,
streamlining, and site management
planning, and builds on the engineering
and analytical steps established in the
current NCP. The RI/FS remedy
selection process is portrayed in the
following specific steps: (1) Project
scoping which includes developing
workplans; (2) a remedial investigation
that typically includes gathering basic
site data for site characterization and
the baseline risk assessment, and
conducting treatability studies; (3) a
feasibility study, which includes the
development of alternatives, a screening
step., as necessary, and a detailed
analysis of the alternatives; (4) remedy
selection; and (5) documentation. As
presented in today's proposal, these
steps appear highly articulated and
distinct In practice, the steps are
usually highly interactive. The RI/FS
process should be tailored to match the
scope and nature of the site problems.
The steps in the process are intended
to ensure that remedial alternatives are
formulated to be protective of human
health and the environment and
designed to meet the applicable or
relevant and appropriate requirements
of other Federal and State
environmental laws. Judgments as to the
cost-effectiveness of the alternatives
and the extent to which permanent
solutions and treatment or resource
recovery technologies can be
practicably utilized at a given site are
made in the remedy selection process,
as trade-offs between protective
alternatives are balanced.
I. Project scoping. The purpose of
scoping is to define more specifically the
appropriate type and extent of
Investigative and analytical studies that
should be undertaken for a given site.
Scoping is distinct from site
management planning in that it entails
formal planning for both the remedial
investigation and feasibility study.
Scoping has been separated from the
remedial investigation section to which
it is attached under the current NCP
simply to highlight the workplan
development process and the
development of other project plans such
as the sampling: and analysis plan.
(SAP), the health and safety plan (HSP).
and the community relations plan (CRPJ.
During scoping, to assist in evaluating
the possible impacts of releases from the
site on human health and the
environment, a conceptual
understanding of the site should be •
established considering in a qualitative
manner the sources of contamination,
potential pathways of exposure, and
potential receptors. This preliminary
characterization is initially developed
with readily available information and
is refined as additional data are
collected. A site-specific baseline risk
assessment with additional qualitative
and/or quantitative aspects will be
performed during the RI to build on this
conceptual understanding by
characterizing further the type and
magnitude of potential risks. The
identification of potential ARARs and
other criteria, advisories and guidance
to be considered fTBCs) will begin
during scoping as lead and support
agencies initiate a dialogue on potential
requirements during planning meetings
or discussions that occur between
agencies. Under CERCLA. section
12l(d)(2)(A)(ii], State requirements must
be identified in a timely manner in order
to be considered ARARs. Sections
300.430 (d) and (e) and 30O5IO(d) in
today's proposed rule describe the
process for identification of ARARs by
the lead and support agencies.
The main objectives of scoping are to
identify the types of decisions that need
to be made, to determine the types
(including quantity and quality) of data
needed, and to design efficient studies
to collect these data. The scope and -
detail of the investigative studies and
alternative development and analysis
should be tailored to the complexity of
site problems. This will require a
consideration of how the phases of the
remedial process could most
appropriately be conducted and the
-------
Federal Register / VoL 53. No. 245 / Wednesday. December 21. 1988 / Proposed Rules 51425
level of effort and analysis required for
each phase. The greatest opportnnities
to streamline the analysis generally will
occur when the scope of the study and
remedial action are limited to a small
part of the site, or when the threats are
clearly defined and technical solutions
re straightforward.
2. Remedial investigation (RI). The RI
icludes: (i) The collection of data
identified during project Koping as
necessary to characterize the site and
evaluate remedial alternatives; (it) the
characterization of current and potential
risks through a baseline risk assessment;
and (iii) treatability studies, as
appropriate. Today's proposed revisions
emphasize that the program
management principle of streamlining
will be applied to determinations of
what is necessary to adequately
characterize a site. Site-specific
judgments arc required to determine
how much additional information is
necessary to support derisions, taking
into consideration the added time and
costs of collecting and analyzing the
data.
During site characterization, site-
specific data are collected and assessed
to determine what, if any, types of
response actions are warranted, hi light
of CERCLA's mandate to assess
permanent solutions, alternative
treatment technologies, and resource
recovery technologies, EPA is proposing
to collect as appropriate, data about
treatment technologies, such as
characteristics of the waste or die cite
that affect the types of treatment
possible and the effectiveness of
treatment approaches, the extent to
v.'hich substances on-stte may be reused
cr recycled, and the potential for future
releases if any substances or treatment
residuals remain on-site. The RI may
also include treatabrility studies that are
needed to better evaluate potential
technologies.
Once the contaminants of concern at
a site have been identified, the baseline
risk assessment is initiated to determine
v.-hether the site poses a current or
potential risk to human health and die
environment in the absence of any
remedial action. It provides the basis for
determining whether or not remedial
action is necessary and the justification
for performing remedial actions. The
Super-fund baseline risk assessment
process may be viewed as consisting of
an exposure assessment component and
a toxirity assessment component, the
results of which are combined to
develop an overall characterization of
risk. As indicated above, these
assessments are site-specific and
therefore may vary in both detail and
the extent to which qualitative and
quantitative analyses an utilized,
depending on the complexity and
particular circumstances of the site, as
well as the availability of pertinent
ARARs and other criteria, advisories,
and guidance.
An exposure assessment is conducted
to identify the magnitude of actual or
potential human or environmental
exposures, the frequency and duration
of these exposures, and the routes by
which receptors are exposed. This
assessment involves developing for each
site a current exposure scenario as well
as a reasonable maximum exposure
scenario. The current exposure analysis
is used to determine whether a health or
environmental threat exists based on
existing site conditions. The reasonable
maximum exposure scenario is used to
provide decisiomaakers with an
understanding of potential future
exposures and should include an
assessment of the likelihood of such
exposures occurring. This exposure
scenario will provide the basis for the
development of protective exposure
levels.
The toxicity j«gj«gm<»rrt component of
Superfund risk assessment considers: (a)
The types of adverse health or
environmental effects associated with
chemical exposures; (b) th« relationship
between magnitude of exposures aad
adverse effects; and (c) related
uncertainties such as the weight of
evidence for a particular chemical's
carcinogenicity in iuaaans. Typically.
the Superfund risk assessment process
relies heavily on existing toxkity
information or profiles developed on
specific chemicals. These are generally
estimated carcinogen exposures that
may be associated with specific lifetime
cancer risk probabilities (risk-specific
doses or RsDs), and noDcarcusogen
exposures that are not likely to present
appreciable risk of significant adverse
effects to humans (including sensitive
subgroups) over lifetime exposures
(reference doses or RfDs).
During risk characterization,
chemical-specific toxicity information is
compared both against measured
contaminant exposure levels and those
levels predicted through fate and
transport modeling to determine
whether levels at or near the site are of
potential concern. Results of this
analysis are presented with all critical
assumptions and uncertainties so that
significant risks can be readily
identified,
3. Feasibility study (FS). The purpose
of the FS is to provide the
deciskmmaker with an assessment of
alternatives. Including their relative
strengths and weaknesses, and the
trade-offs in selecting one alternative
over another. The FS process involves
developing a reasonable range of viable
remedial alternatives and analyzing
these alternatives in detail using nine
evaluation criteria. Because the RI and
FS are conducted concurrently, this is an
interactive process in which potential
alternatives and remediation goals are
continually refined as additional
information from the RI becomes
available.
L Establishing protective remedial
action objectives. The first step in the
FS process involves developing remedial
action objectives for protecting human
health and the environment which
should specify contaminants and media
of concern, potential exposure
pathways, and preliminary remediation
goals. The preliminary remediation
goals, by establishing initially
acceptable contaminant levels for each
exposure route, assist in setting
parameters for the purpose of evaluating
technologies and developing remedial
alternatives. Because these preliminary
remediation goals typically are
formulated during project scoping or
concurrent •with initial RI activities (i.e.,
prior to completion of the baseline risk
assessment), they are initially based on
readily available environmental or
health-based ARARs (e.g., MCLs, WQC)
and other criteria, advisories, or
guidance (e.g., RfDs). As new
information and data are collected
during the RI, including the baseline risk
assessment and as additional ARARs
are identified during the RI, these
preliminary remediation goals may be
modified as appropriate to ensure that
remedies comply with CERCLA's
mandate to be protective of human
health and the environment and comply
with ARARs.
During the development and analysis
of alternatives, the risks associated with
potential alternatives, both during
implementation and following
completion of remedial action, are
assessed, based on the reasonable
maximum exposure scenario and any
ether controls necessary to ensure that
exposure levels are protective and can
be attained. These are generally
assessed for each exposure route unless
there are multiple exposure routes
where combined effects may have to be
considered. For noncarcinogenic
chemicals, EPA has concluded that
protection is achieved when exposures
are such that no appreciable risk of
significant adverse effects to individuals
over a lifetime of exposure exist. For
carcinogens. EPA uses health-based
ARARs to set remediation goals when
-------
51426 Federal Register / Vol. 53, No. 245 /.Wednesday. December 21, 1988 / Proposed Rules
they are available. When an ARAR does
not exist EPA guidance has been to
select remedies resulting in cumulative
risks that fall within a range of 10~4 to
10"* individual lifetime excess cancer
risk, EPA is willing to continue using
this range in the future as it provides
flexibility in developing protective
remedies suitable to site-specific
conditions. However, EPA is interested
in receiving comment on a risk range of
10"* to 10~* since this risk range is used
in certain other EPA programs..
The risk range is important because it
is a standard used by EPA to comply
with CERCLA's mandate to protect :
human health. Furthermore, the choice
of risk range will continue to be
important as the Superfund program
matures and as related science and
policy evolve.
EPA, therefore, solicits comment on
two potential risk ranges in particular—
the current 10~* to 10"T range and an
alternative 10"* to 10"' range—and on
. issues related to these or alternative risk
ranges. Commenters are requested to
provide as much supporting information
as practical for any alternatives
suggested. Issues that commenters may
want to consider include the following:
(1) The potential impact of
improvements in the understanding of
cancer risk assessment, including
biological mechanisms, interpretation of
data, measures of exposure, etc.
(2) The ability of available I nalytical
methods to measure chemical
substances at concentrations associated
with low levels of risk.
(3) Possible advantages or
disadvantages of a narrower or broader
risk range, or of a single risk value.
(4) The desirability of using a risk
range for cleanup at these sites to
protect current and potential sources of
drinking water that is more stringent
than the 10"« to NT* range that
characterizes drinking water standards
and that is more stringent than what is
considered de minimis risk under other
programs.
(5) The ability of treatment
technologies to achieve cleanups at
specified levels of risk. This may include
technologies that are unable to achieve
removal of contaminants to very low
levels, as well as other technologies that
can only achieve low levels of risk.
(6) Whether available funds should be
used to attain very low levels of risk at a
limited number of sites, or to achieve
cleanup at more sites (at somewhat
higher levels of risk for some sites) with
a greater reduction in overall risk.
(7) The effect of achieving particular
risk levels on the time needed to
complete the remedial action and the
extent to which this should be
considered when selecting remedies.
(8) The relationship between EPA's
risk range and those used in State
Superfund programs, including the
impact of EPA's range on the
development of State programs.
(9) The evolving issue of public
perception of relative risks in our
society.
Commenters are invited to address
these and other issues related to either
the Superfund program's risk range or .
alternatives that they may suggest .
In general, chemical-specific ARARs
are set for a single chemical or closely
related group of chemicals. These
requirements typically do not consider
the mixtures of chemicals and other
conditions (e.g., multiple pathways of
exposure) that may be found at CERCLA
sites. Therefore, due to site-specific
factors, remediation goals set at the
level of single chemical-specific
requirements may not adequately
protect human health or the
environment at that site. In these
instances, remediation goals may be set
below the chemical-specific
requirements (i.e., at more stringent
levels) in order to obtain a remedy that
is protective. Remedies resulting in
cumulative risks that fall within the
generally acceptable risk range for
carcinogens (10~* to 10~T) or meet
acceptable levels for noncarcinogens are
said to be protective of human health.
Superfund remedies will also be
protective of environmental organisms
and ecosystems. However,
"protectiveness" in this context is often
considerably less quantitative.
During selection of remedy, the final
remediation goals, and resulting
exposure levels, will be determined by
balancing the major trade-offs among
protective, ARAR-compliant
alternatives, using specified evaluation
criteria (see sections 3.iii. and 4., below).
During the FS, pertinent factors for
modifying the remediation goals within
the acceptable risk range can be divided
into three broad categories: (a) Exposure
factors, (b) uncertainty factors, and (c)
technical factors. Included under
exposure factors are: the cumulative
effect of multiple contaminants, the
potential for human exposure from other
pathways at the site, population
sensitivities, potential impacts on
environmental receptors, and cross
media impacts of alternatives. Factors
related to uncertainty may include: the
reliability of alternatives, the weight of
scientific evidence, and the reliability of
exposure data. Technical factors may
include: detection/quantification limits
for contaminants, technical limitations
to restoration, the ability to monitor and
control movement of contaminants, and
• background levels of contaminants.
Remediation levels should be set for
appropriate environmental -media, and
performance standards established for
selected engineering controls and
treatment systems including controls
implemented during the response
measure. For ground water, remediation
levels should generally be attained
throughout the contaminated plume, or
at and beyond the edge of the waste
management area when waste is left in
place. For air, the selected levels should
be established for the maximum -
exposed individual, considering
reasonably expected use of the site and
surrounding area. For surface waters,
the selected levels should be attained at
the point or points where the release
enters the surface waters.
ii. Development and screening of
alternatives. Once remedial action
objectives have been developed, general
response actions, such as treatment.
containment, excavation, pumping, or
other actions that may be taken to
satisfy those objectives should be
established. Technologies potentially
applicable to each general response
action are then identified, briefly
evaluated to verify their suitability, and
assembled into remedial alternatives. In
the event a large number of alternatives
are developed, a screening step may be
conducted.
For most sites, the initial range of
alternatives should represent distinct.
promising alternative approaches to
managing the site problems. The major
change in this step from the current NCP
is the organizing scale along which the
alternatives are to be arrayed.
The current NCP requires alternatives
to be developed, as appropriate, from
the following categories: (a) An off-site
alternative; (b) an alternative that
attains ARARs; (c) an alternative that
exceeds ARARs; (d) an alternative that
does not attain ARARs; and (e) a no-
action alternative. These categories
tested on the implicit assumption that
alternatives would share the same
potential ARARs and that the ability to
meet or exceed those requirements
corresponded to different levels of
protection. Program experience has
shown that while alternatives will
usually share chemical- and location-
specific ARARs, each will have a unique
set of action-specific requirements.
Additionally, it is now clear that ARARs
do not by themselves necessarily define
protectiveness. First. ARARs do not
exist for every contaminant location, or
waste management activity that may be
encountered or undertaken at a
CERCLA site. Furthermore, in those
-------
Federal Register / Vol. 53, No. 245 / Wednesday, December 21, 19as / Proposed Rules 51427
circumstances where multiple
contaminants are present the
cumulative risks posed by the potential
additivity of the constituents may
require cleanup levels for individual
contaminants to be more stringent than
ARARs to ensure protectiveness at the
site. Finally, determining whether a
remedy is protective of human health
and the environment also requires
consideration of the acceptability of any
short-term or cross-media impacts that
may be posed during implementation of
a remedial action.
In light of these determinations and in
response to the new statutory emphasis
on utilizing permanent solutions and
treatment technologies to the maximum
extent practicable, EPA is proposing a
major change in the range of
alternatives required to be developed.
The initial range of alternatives
should represent distinct, promising
alternative approaches to mgnAging the
site problems. In light of the statutory
preference for treatment rerppijipg^ this
range typically win include alternatives
that feature, as a principal element,
treatment that reduces the toxicity,
mobility, or volume of the hazardous
substances at the site. Typically,
treatment alternatives range from
remedies that treat the principal threats
at the site, to remedies that completely
destroy, detoxify, or immobilize the
hazardous substances and leave
materials tbat require no long-term
management. Principal threats will be
defined on a site-specific basis and may
include a discrete areas of the site that
consists of highly toxic and/or highly
mobile waste {e.g., a lagoon filled with
highly concentrated organic
contaminants and gunrounded by
slightly contaminated softs), or a single
environmental medium (e.g., highly
contaminated ground •water).
In developing ahernan'Tes, the lead
agency should consider whether the
prospective remedy should be
developed as an on-srte arterrwtive, an
off-site alternative, or both. Whfle
CERCLA dearly states that off-site
disposal without treatment is the least
preferred alternative, it does not express
any preference for or bias against off-
site disposal with treatment. In
evaluating off-sHe actions, however,
EPA's requirements related to the off-
site transfer of CERCLA wastes mast be
taken into account.
In addition to treatment alternatives,
the lead agency should develop, es
appropriate, alternatives that control the
threats posed by hazardous substance*
and/or prevent exposure, such as
containment technologies and
institutional controls. Coniztnnxeat
options typically provide • basetine fat
comparison with other actions and
provide alternatives in case the lead
agency concludes that remedies
featuring treatment are not practicable.
A no-action alternative will always be
developed, although analysis of this
option frequently will be more limited
than for other alternatives unless
information suggests that indeed no
action is necessary. In the remedial
context, this option is often "no further
action,** since removals or enforcement
actions frequently will have taken place
prior to the FS or maintenance activities
may be ongoing. The no-action
alternative involves leaving the site
essentially as it is. Analyzing the no-
action alternative provides another
nefol baseline for evaluating the costs
of and protection provided by the other
alternatives being considered.
The statutory preference for treatment
must be considered in developing a
reasonable number of options that have
real potential for addressing site
problems. The appropriate number of
alternatives to be developed will vary
by site depending on the nature of the
site and the risks posed by the
contaminants. For example, while
treatment technologies encompass a
range of options, there might be only one
viable technology that can be applied to
the hazardous substances at a particular
site. Thus, the variation within the
treatment range might involve only die
amount of waste treated, or the levels to
which the contaminants are reduced by
the smgle technology, in other instances.
such as large municipal landfills or
mining waste «tes. comprehensive
treatment options are tess likely to be
practicable, and therefore the universe
of viable ahem a tires might be reduced
to a limited Bomber of remedies
involving treatment of the principal
threats, engineering controls,
institutional controls, or combinations of
those approaches.
For an operable unit that does not
constitute the complete response action
for the site or a particular site problem,
it may not be necessary or appropriate
to develop the full array of alternatives;
discussed above. In the event the risk
assessment indicates no action is
required, few, if any, alternatives will be
developed, in summary, a lengthy nst of
remedial alternatives is not required to
fulfill the purpose of this phase of the
CERCLA process. The number and type
of remedial alternatives should be
tailored to fit the site problems being
addressed and established remedial
action objectives.
CERCLA grants EPA flexibility to
examine and select technologies that
have not yet been proven m practice, in
order to address certain types of sites
and to promote the development of new
methods of treatment of hazardous
substances. Therefore, EPA today
proposes that innovative technologies
be carried through to the detailed
analysis, if there is a reasonable belief
that those technologies will offer
significant advantages over other
options being considered (e.g., better
performance or implementability, fewer
or lesser adverse impacts, or lower
costs).
A screening step may be conducted in
those situations where a wide array of
alternatives are available in order to
reduce the number of alternatives that
will be analyzed in detail. Although the
screening will reduce the number of
alternatives being considered, a range of
choices should be preserved. Screening
will not be necessary where only a few
choices have emerged from the
development of alternatives phase.
When the screening step is conducted,
the most promising subset of
alternatives that are suitable to the site
in question should be identified through
a preliminary evaluation of the relative
effectiveness, implementability, and cost
of the alternatives. The effectiveness of
the alternatives relates to their overall
performance in eliminating, reducing, or
controlling the current and potential
risks posed by the site, both during
implementation and over time. The
implementability of (he alternatives
involves the degree of difficulty
associated with their actual
construction, including technical,
administrative, and logistical problems
that affect the time necessary to
complete the remedy. Cost
considerations include construction
costs and the costs of operating and
maintaining the remedy orer time.
Data at this stage in die remedial
process may be incomplete doe to
ongoing field investigations and
treatability studies, but they should be
sufficient to assess the major relative
strength* and weaknesses of the
alternatives. The primary focus during
screening is on identifying those
alternatives that are clearly ineffective
or unimplementabie, or that are clearly
inferior to other alternatives being
considered hi terms of their
effectiveness, implemerrtabilWy, or cost
Cost generally will not be the sole
reason for eliminating an alternative
from further consideration at the
screening phase. The primary function
of cost at this point m the process is to
help identify alternatives that provide
levels of effectiveness similar to those of
other options being considered but at
substantially higher cost Cost can also
be considered in conjunction with other
-------
51428 Federal Register / Vol. 53. No. 245 / Wednesday. December 21. 1988 / Proposed Rules
factors to determine whether or not an
option ia likely to yield results in terms
of implementability and effectiveness
that are in proportion to its costs,
relative to other alternatives under
consideration. For example, cost may be
considered along with implementability
factors to determine whether treatment
of the principal threats posed by a large
municipal landfill would be cost-
effective and practicable, relative to
other remedial options.
When utilized, the screening step
provides another opportunity to tailor
the remaining analysis to the identified
site problems, ensuring that the number
and the types of alternatives carried
forward matches the nature and
complexity of the site problems.
The lead agency should coordinate
with the support agency when
developing and/or screening
alternatives. The lead agency and
support agency should begin to identify
action-specific ARARs and TBCs for
alternatives that remain for the detailed
analysis.
iii. Detailed analysis. The purpose of
the detailed analysis is to objectively
assess the alternatives with respect to
nine evaluation criteria that encompass
statutory requirements and include
other gauges of the overall feasibility
and acceptability of remedial
alternatives. This analysis is comprised
of an individual assessment of the
alternatives against each criterion and a
comparative analysis designed to
determine the relative performance of
the alternatives and identify major
trade-offs (i.e., relative advantages and
disadvantages) between them. This
analysis should focus on those
subfactors under each criterion that are
most pertinent to the circumstances of
the site and the scope of the action.
Information gathered during this
analysis will be used by the
decisionmaker to select a remedial
action.
These nine criteria can be categorizea
into three groups, each with distinct
functions in selecting the remedy.
During the selection process, the
decisionmaker will consider these
criteria as follows. Overall protection of
human health and the environment and
compliance with applicable or relevant
and appropriate requirements (or
invoking a waiver) are threshold criteria
that must be satisfied in order for an
alternative to be eligible for selection.
Long-term effectiveness and
permanence, reduction of toxicity,
mobility, or volume, short-term
effectiveness, implementability, and cost
are the primary balancing factors used
to weigh major trade-offs between
alternative hazardous waste
management strategies. State and
community acceptance are modifying
considerations that are formally taken
into account after public comment is
received on the proposed plan and RI/
FS report.
Threshold Criteria
(1) Overall protection of human health
and the environment. Protectiveness is
the primary requirement that CERCLA
remedial actions must meet A remedy is
protective if it adequately eliminates,
reduces, or controls all current and
potential risks posed through each
pathway by the site. A site where, after
the remedy is implemented, hazardous
substances remain without engineering
or institutional controls, must allow for
unrestricted use and unlimited exposure
for human and environmental receptors.
For those sites where hazardous
substances remain such that
unrestricted use and unlimited exposure
is not allowable, engineering controls,
institutional controls, or some
combination of the two must be
implemented to control exposure and
thereby ensure reliable protection over
time. In addition, implementation of a
remedy cannot result in unacceptable
short-term risks to, or cross-media
impacts on, human health and the
environment.
(2) Compliance with applicable or
relevant and appropriate requirements
(ARARs). Compliance with ARARs is
one of the statutory requirements for
remedy selection. Alternatives are
developed and refined throughout the
CERCLA process to ensure either that
they will meet all of their respective
ARARs or that there is good rationale
for waiving an ARAR. During the
detailed analysis, information on
Federal and State action-specific
ARARs will be assembled along with
previously identified chemical-specific
and location-specific ARARs.
Alternatives will be refined to ensure
compliance with these requirements, or
to begin to identify waivers that might
be invoked.
Primary Balancing Criteria
(3) Long-term effectiveness and
permanence. This criterion reflects
CERCLA's emphasis on implementing
remedies that will ensure protection of
human health and the environment into
the future as well as in the near term. In
evaluating alternatives for their long-
term effectiveness and the degree of
permanence they afford, the analysis
should focus on the residual risks that
will remain at the site after the
completion of the remedial action. This
analysis should include consideration of
the following: the degree of threat posed
by the hazardous substances remaining
at the site; the adequacy of any controls
(e.g., engineering and institutional
controls) used to manage the hazardous
substances remaining at the site; the
reliability of those controls; and the
potential impacts on human health and
the environment, should the remedy fail
based on assumptions included in the
reasonable maximum exposure
scenario. This evaluation criterion
Incorporates the statutory requirements
to take into account the following: The
uncertainties associated with land
disposal; the goals, objectives, and
requirements of RCRA; the persistence,
toxicity, mobility, and propensity to
bioaccumulate of the hazardous
substances and their constituents; the
long-term potential for adverse health
effects from human exposure; the
potential for future remedial action costs
if the remedy were to fail; and the
potential threat to human health and the
environment associated with redisposal
or containment of the hazardous
substances.
(4) Reduction of toxicity, mobility, or
volume. This criterion addresses the
statutory preference for remedies that
employ treatment as a principal element
by ensuring that the relative
performance of the different treatment
alternatives in reducing toxicity,
mobility, or volume will be assessed.
Specifically, the analysis should
examine the magnitude, significance,
and irreverstbility of reductions.
(5) Short-term effectiveness. This
criterion includes the short-term impacts
of the alternatives—i.e.. impacts during
implementation—on the neighboring
community, the workers, or the
surrounding environment, including the
potential threats to human health and
the environment associated with
excavation, treatment, and
transportation of hazardous substances.
The potential cross media impacts of the
remedy and the time to achieve
protection of human health and the
environment should also be analyzed.
(6) Implementability.
Impleroentability considerations include
the technical and administrative
feasibility of the alternatives, and the
availability of the goods and services
(e.g., treatment, storage, or disposal
capacity) on which the viability of the
alternative depends. Implementability
considerations often affect the timing of
various remedial alternatives, e.g..
limitations on the season in which the
remedy can be implemented, the number
and the complexity of materials-
handling steps that must be followed,
the need to obtain permits for off-site
activities, and the need to secure
-------
Federal Register / Vol. 53. No. 245 / Wednesday, December 21. 1988 / Proposed Rules 51429
technical services such as well drilling
and excavation.
(7) Cost. Cost encompasses all
construction and operation and
maintenance costs incurred over the life
of the project The focus during the ~
detailed analysis is on the net present
value of these costs. EPA intends to
continue to rely on OMB Circular A-94
for determining the discount rate for
Federal projects, while retaining the
option provided in A-94 of using
sensitivity analyses. EPA believes that
the discount rate represents an
important aspect of developing a
realistic accounting of the future costs of
remedial alternatives and an accurate
comparison of the total costs, and the
cost-effectiveness, of treatment and
nontreatment remedies.
Modifying Criteria
(8) State acceptance. This criterion,
which is an ongoing concern throughout
the remedial process, reflects the
statutory requirement to provide for
substantial and meaningful State
involvement. State comments may be
addressed during the development of the
FS, as appropriate, although formal
State continents usually will not be
received until after the State has
reviewed the draft RI/FS and the draft
proposed plan prior to the public
comment period. The proposed plan that
is issued for public comment along with
the RI/FS report should indicate
whether or not the State has commented
on or concurred with EPA's preferred
alternative or that State comments have
not been received. The ROD should
specifically address State concurrence
or nonconcurrence with the response
action that is selected, particularly
noting State views on compliance or
noncompliance with State ARARs.
(9) Community acceptance. This
criterion refers to the community's
comments, where community is broadly
defined to include all interested parties,
on the remedial alternatives under
consideration. These comments are
taken into account throughout the RI/FS
process through the communications
that occur as the community relations
plan is implemented. Again, EPA can
only preliminarily assess community
acceptance during the development of
the FS, since formal public comment will
not be received until after the public
comment period for the proposed plan -
and the RI/FS is held The detailed
analysis, however, may summarize
preliminary comments on components of
the alternatives received up to that
point.
4. Selecting remedial actions. The
selection of a CERCLA remedial action
from among alternatives is a two-step
process. First, the lead agency, in
conjunction with the support agency,
will review the results of the RI/FS to
identify a preferred alternative, which
will be presented to the public in a
proposed plan along with the supporting
information and analysis, for review and
comment Second, the lead agency, will
review the public comments, consult
with the support agency in order to
evaluate whether the preferred
alternative is still the most appropriate
remedial action for the site or site
problem, and make a decision.
While the dedsionmaking steps, in
general, are similar for all types of
response actions, the information,
analysis, and criteria upon which
response action decisions are based will
vary depending on the scope of the
action and complexity of the decision.
The identification of the preferred
alternative, and subsequently the
remedy selection, is based on an
evaluation of the major trade-offs among
alternatives in terms of the evaluation
criteria, focusing on specific factors
most relevant to site circumstances, and
the overall practicability of each
alternative. The decisionmaker should
first determine whether all alternatives
meet the threshold criteria. Those
alternatives that provide adequate
protection of human health and the
environment and either comply with all
of their ARARs, or provide grounds for
invoking a waiver of an ARAR, satisfy
the threshold criteria. Any alternative
that does not satisfy both of these
requirements is not eligible for selection.
The preferred alternative is then
selected by determining which
alternative appears to provide the best
combination of attributes with respect to
the five primary balancing criteria:
Long-term effectiveness, short-term
effectiveness, reduction in toxicity,
mobility, or volume, implementability,
and cost Generally, at this point only
informal and perhaps incomplete
comments of the State and community
are known. These two modifying criteria
are typically considered after the public
comment period on the proposed plan.
Total costs of each alternative should
be compared to the overall effectiveness
they afford and the relationship between
costs and overall effectiveness across
alternatives should be examined to
determine which alternatives offer
results proportional to their costs such
that they represent a reasonable value
for the money. The lead agency will
choose the alternative that represents
the best combination of those factors
that are deemed most important to the
site. In performing the balancing
necessary to make that decision, the
dccisionmaker must weigh the
preference for remedies involving
treatment as a principal element
The proposed plan will identify the
alternative that appears to offer the best
balance of trade-offs among alternatives
in terms of the criteria, summarize the
position of the State resulting from its
formal comments on the RI/FS and the
draft proposed plan, and state the lead
agency's expectation that the preferred
alternative will satisfy all statutory -
requirements. The proposed plan will be
issued for pubb'c review and comment
In making the final selection, the lead
agency reassesses its initial
determination that the preferred
alternative provides the best balance of
trade-offs, now factoring in any new
information or points of view expressed
by the State or community during the
public comment period. The
decisionmaker will consider State and
community comments regarding EPA's
evaluation of alternatives with respect
to the other criteria (e.g., potential short-
term impacts associated with
implementation). These comments may
help EPA determine whether to modify
aspects of the preferred alternative, or
whether another alternative provides a
more appropriate balance. If the
preferred alternative is determined to be
the most appropriate remedy, in that it
offers the best balance among the
factors evaluated, the lead agency will
select that alternative. If not the lead
agency, in conjunction with the support
agency, will select another protective,
cost-effective alternative that provides a
better combination of long- and short-
term effectiveness, reduction of toxicity.
mobility, or volume, implementability,
and cost This may require a discussion
of significant changes in the ROD or the
development of a new proposed plan to
be made available for additional public
comment prior to selection of remedy.
(See § 300.430 preamble section below.
"H. Community Relations.")
For Fund-financed actions, EPA may
consider the need to use Fund monies at
other sites in selecting a less costly
remedy over a more desirable but
substantially more expensive alternative
as the most practicable, cost-effective
solution.
In selecting a remedy, the statutory
requirements discussed below must be
satisfied. These requirements will be
addressed differently depending on the
scope of the action being taken.
i. The selected remedy is protective of
human health and the environment, by
eliminating, reducing, or controlling • •
risks posed through each pathway such
that human and environmental receptors
are no longer threatened. The
protectiveness evaluation of an operable
-------
51430 Federal Register / Vol. S3, No. 245 / Wednesday, December 21, 1988 / Proposed Rules
unit may be limited to that unit itself; at
a minimum, the protectiveness
determination should show that
conditions at a site are not exacerbated
as a result of the action.
ii. The selected remedy at least attains
all ARARs, unless use of a waiver or
waivers is justified. For an operable
unit, the ARAR determination will be
limited to the wastes being actively
managed. CERCLA section 121 allows
EPA to waive ARARs for actions that
are a portion of a more comprehensive
remedy that will attain ARARs when
completed. Only Federal and State
requirements that are applicable or
relevant and appropriate to the operable
unit must be addressed. Justification
must be provided if a waiver is being
invoked.
iii. The selected remedy is cost-
effective in that its overall effectiveness
is proportionate to its total costs.
iv. The selected remedy utilizes
permanent solutions, treatment
technologies, or resource recovery
technologies to the maximum extent
practicable. In making this
determination for an operable unit, the
need or opportunity to take expeditious
action at the site may be considered.
5. Documenting decisions. Remedies
selected under Superfund are
documented in a record of decision
(ROD). The general process of
documenting decisions is similar for
both operable units and comprehensive
remedial actions, however, the content
and level of detail will vary depending
on the scope of the action. A ROD
serves several purposes. It summarizes
the problems posed by a site, the
technical analysis of alternative ways of
addressing those problems, and the
technics! aspects of the selected remedy
that are later refined into design
specifications. A ROD is also a legal
document that demonstrates that the
lead and support agency decisionmaking
has been carried out in accordance with
statutory and regulatory requirements
and that explains the rationale by which
remedies were selected. EPA's decisions
will be supported on the basis of the
ROD and other materials in the
administrative record in cases that
challenge remedy selection decisions.
Finally, RODs are important documents
that summarize key facts discovered,
analyses performed, and decisions
reached by the lead and support
agencies. A notice of availability of a
signed ROD will be published in a major
local newspaper of general circulation.
In addition, the lead agency will make
the ROD available for public inspection
and copying at or near the site, before
remedial action begins.
All RODs will have the following
.common features:
i. A brief summary of the problems
posed by the site, the alternatives
evaluated as potential remedies, the
results of that analysis, the rationale for
the remedial action being selected, and
the technical aspects of the selected
action.
ii. A demonstration that the decision
was made in accordance with statutory
and regulatory requirements. The ROD
should discuss how the requirements of
section 121 of CERCLA have been
addressed, including whether or not the
preference for treatment as a principal
element is satisfied or an explanation in
those cases in which the selected
remedial action does not satisfy this
preference.
iii. A description of the remediation
level(s) and/or other performance levels
that the remedial action is expected to
achieve.
iv. A statement of whether or not
hazardous substances, pollutants, or
contaminants will remain at the site
such that a five-year review of the
response action will be required (see
section 6. below).
v. A discussion of significant changes
in the final selected remedy from the
preferred alternative. A responsiveness
summary that identifies and responds to
significant comments should be
available with the record of decision.
6. Five-year review. The CERCLA
amendments require periodic reviews—
at least every five years—at sites where
the remedial action leaves hazardous
substances, pollutants, or contaminants
on-site. EPA interprets this requirement
to mean that a review is required at
those sites where such substances
remain on-site above levels that allow
for unrestricted use and unlimited
exposure for human and environmental
receptors. This means that whenever a
remedy is selected that assumes limited
uses of the land or relies on institutional
controls to ensure attainment of
protective exposure levels, a review will
be conducted. In addition, a review will
be conducted at sites where substances
remain on-site if the standards initially
•sed to define protective exposure
levels are subsequently changed. If the
periodic review shows that a remedy is
no longer protective of human health
and the environment additional action
will be evaluated and taken to mitigate
the threat
In addition to the statutorily required
five-year reviews, EPA might specify in
its record of decision more frequent
reviews, or specific reviews of the
remedy selected, such as assessments of
remedial technologies that might not
have been available at the time the
decision was made.
C. Alternative Selection Of Remedy
Approaches
1. Variations on the site-specific
approach. EPA has considered two
major variations on the site-specific
balancing approach laid out in today's
proposed rule, each of which establishes
• somewhat different structure. EPA has
considered the potential advantages and
disadvantages associated with the kind
of structure these variations would
afford. After analysis of public
comment EPA may include in the final
NCP rule any or a combination of the
options discussed here.
i. Variation Number i: Site-specific
balancing with a cost-effectiveness
screen. The first variation would follow
the process as laid out in the proposed
rule through the screening of
alternatives. However, this approach
would: (a) Retain the organization of
evaluation criteria used during screening
through the detailed analysis and
selection; (b) not include State and
community acceptance as evaluation
criteria; (c) establish an explicit step by
which cost-effectiveness would be
determined that would screen
alternatives before the final
determination of die practicable extent
to which permanent solutions and
treatment technologies will be utilized.
The detailed analysis would focus on
the three categories of criteria first
examined in the screening step:
effectiveness (long- and short-term),
implementability, and cost. While
individual protectiveness and ARARs
factors would be examined in the
detailed analysis of effectiveness and
implementability, the protectiveness
finding and final determination of ARAR
compliance (or justification of a waiver)
would not be addressed until the
selection step. Reductions in toxicity.
mobility, or volume would also be
analyzed under effectiveness, rather
than as a separate criterion. Under this
approach. State acceptance also would
not be an explicit evaluation criterion.
This approach would not ask for an
expbcit characterization of State
comments unless there were a
disagreement between EPA and the
State over the preferred alternative in
the proposed plan or at the time of final
remedy selection. In the case where the
State is the lead agency, this approach
would consider State acceptance to be
built into the process. Where the State is
serving as the support agency, this
approach would rely on the support
agency comment period on the
completed RI'FS and proposed plan to
-------
Federal Register / Vol. 53, No. 245 / Wednesday, December 21, 1983 / Proposed Rules 51431
provide an adequate opportunity for
formal comments. Similarly, community
acceptance would not be an evaluation
criterion but a consideration in the final
selection phase as public comments
received on the proposed plan and RI/
FS are factored into the lead and
support agencies' thinking. Thus, the
detailed analysis would be limited to
producing an organized presentation of
the trade-offs among alternatives in
terms of effectiveness (short- and long-
term, including toxiciry, mobility, or
volume reduction], implementability and
cost, highlighting those trade-offs of
primary importance for this particular
site.
The selection phase under this
alternative approach would be
conducted very similarly to the
proposed rule with the exception that
the determination of the cost-
effectiveness of the alternatives would
be made as an explicit screening step
prior to selection of the alternative
which represents the best balance of
factors and utilizes permanent solutions
and treatment technologies to the
maximum extent practicable. Following
a check that all alternatives afford
adequate protection and attain their
ARARs (or provide grounds for invoking
a waiver), the cost-effectiveness of the
alternatives would be determined by
examining the long-term effectiveness
achieved by each alternative in relation
to its costs and comparing this long-term
effectiveness/cost relationship among
alternatives. Those alternatives which
do not offer long-term effectiveness
proportionate to their costs relative to
the other alternatives would not be
considered to be cost-effective and
would be eliminated from further
consideration. This step would function
as a threshold screen to determine
whether the alternatives are cost-
effective, not which is "the only" or "the
most" cost-effective option. Relative
degrees of cost-effectiveness could be
taken into account in the final balancing
step by which the remedy is selected.
This approach retains a consistent
organization of criteria throughout the
screening, detailed analysis, and
selection steps of the process. Limiting
the balancing to three broader
categories of criteria, as opposed to
nine, may simplify and streamline the
analysis and focus the rationales for
remedy selection. This approach would
not include State and community
acceptance as formal criteria to be
balanced along with effectiveness,
implementability. or cost factors. This
approach also establishes a step which
more clearly separates the cost-
effectiveness finding from the finding
that permanent solutions and treatment
technologies or resource recovery
technologies have been used to the
maximum extent practicable.
ii. Variation Number 2: Sequential
decisionmaking approach. Another
variation on a site-specific balancing
approach involves breaking the final
remedy selection into multiple,
sequential decision steps. Again, the
steps of the process through the
screening of alternatives are the same as
under the previously described
approaches. The detailed analysis is
conducted using the effectiveness,
implementability, and cost categories of
criteria proposed in Variation No. 1.
Differences arise in the selection phase,
which is conducted in five steps under
this approach.
First, using the results of the detailed
analysis, the alternatives are
qualitatively ranked for overall
effectiveness. The preference for
, treatment is addressed by favoring
options that afford better long-term
reliability and permanence, other factors
being equal, and by giving this factor
increased emphasis if factors are not
equal. Other considerations are
emphasized on a site-specific basis.
Following (or concurrent with) this
effectiveness ranking, the alternatives
are qualitatively ranked for their overall
implementability. Clearly
unimplementable or impracticable
alternatives would be eliminated from
further consideration. Again, individual
implementability factors would be
emphasized on a site-specific basis. The
effectiveness and implementability
rankings would then be combined into a
joint effectiveness/implementability
ranking, also performed qualitatively.
This step would require a balancing of
all noncost factors, again giving long-
term effectiveness and permanence
extra emphasis.
After an overall noncost ranking is
determined, the relative costs of the
alternatives would then be considered.
Unlike the previous approach, which
determines the cost-effectiveness of
alternatives by focusing on the
relationship between their cost and their
long-term effectiveness only, this
approach would focus on the
relationship between cost and ail
noncost factors. Specifically, this
approach would isolate and compare the
differences in cost and the differences in
combined effectiveness and
implementabiiity across remedial
alternatives. Alternatives whose
incremental costs were out of proportion
to incremental effectiveness/
implementability would be deemed not
cost-effective. All other alternatives
would be deemed cost-effective and
would therefore be eligible for final
selection.
The final step involves selecting from
the remaining (cost-effective) options
the one that received the highest
effectiveness/implementability ranking.
The option that utilizes permanent
solutions and alternative treatment
technologies or resource recovery
technologies to the maximum extent
practicable would be the alternative that
offers the best balance of noncost
factors (effectiveness and
implementability) that is also cost-
effective.
This approach adds more structure to
the process by separating the final
remedy selection into a series of steps.
and by specifying the sequence in which
those steps would take place. Each step
would be presented in detail and
justified in the record of decision. An
advantage that may derive from this
second variation is more consistent
documentation of the rationale for
remedy selection. Alternatively, the
compartmentalize tion of decisionmaking
steps may not allow sufficient flexibility
for decisionmakers to synthesize all of
the different kinds of information they
must bring to bear on a remedy
selection.
EPA solicits comments on these
alternative site-specific balancing
approaches, specifically on potential
advantages or disadvantages related to
the type of criteria considered in the
detailed analysis, the steps by which the
statutory findings are made, and the
degree of structure they propose.
2. Alternative strategies—i. Point of
departure strategy. A different type of
strategy would adopt a point of
departure analysis. This approach
would differ from those previously
described as early as the development
of alternatives phase. Aggressive
treatment options that could result in
absolute destruction, detoxification, or
immobilization of all waste above
health- or risk-based levels would be
identified. Initially, containment
technologies or treatment/containment
combinations might also be considered
but would not pass the screening step if
any viable alternatives involving full
treatment existed. The detailed analysis
would focus on identifying the most
effective alternatives with effectiveness
here defined primarily by technical
feasibility and the long-term results each
treatment process could achieve. Short-
term impacts that might be caused by an
alternative would be a secondary
consideration.
. Effective treatment options would
then be put through an implementability
-------
51432 Federal Register / Vol. S3. No. 245 / Wednesday. December 21. 1968 / Proposed Rules
screen. Hie implementability screen
would be used primarily to eliminate
dearly unimplementable options,
although alternatives that were
significantly less implementable than
other options and offered no gain in
long-term effectiveness and permanence
would also be screened out. The least
costly of the most effective options,
defined primarily in terms of toxicity,
mobility, or volume reduction achieved,
would be selected.
This approach places the greatest
emphasis on treatment, virtually
equating the degree of effectiveness,
permanence, and/or protectiveness with
the degree of toxicity, mobility, or
volume reduction attained. This is a
fundamentally different assumption
than that which underlies the other three
approaches previously discussed. It is a
point of departure approach in that it
presumes that the alternative employing
the most aggressive form of treatment of
all waste typically will be selected
unless unimplementable. This approach
gives much less weight to short-term
impacts of the technologies, site-specific
implementability considerations, and
the relative cost-effectiveness of
alternatives than any of the site-specific
balancing approaches. This approach
implicitly interprets the mandate to
"utilize permanent solutions and
alternative treatment technologies or
resource recovery technologies to the
maximum extent practicable" as a
mandate to use the maximum amount of
treatment possible.
Variations of this point of departure
approach could be fashioned that would
retain the initial presumption that the
analysis of alternatives should begin
with those that achieve the greatest
toxicity, mobility, or volume reduction
through treatment, but would allow
broader consideration of
implementability factors and cost-
effectiveness to permit consideration of
other alternatives employing less
treatment. Modifications could avoid the
presumption that full treatment is the
necessary means to achieving protection
of human health and the environment
One potential implication of this
approach, particularly with respect to
the way it defines cost-effectiveness and
the mandate to utilize permanent
solutions and alternative treatment or
resource recovery technologies to the
maximum extent practicable, is that it
may jeopardize EPA's ability to ensure
an efficient use of Trust Fund monies.
Application of maximum treatment to
each site as it is addressed in turn may
prevent EPA from distributing resources
across sites in a manner that ensures
that treatment can be applied to the
worst problems first In addition, under
this option, other mandates in CERCLA
section 121, Including protection of
human health and the environment
compliance with ARARs, and cost-
effectiveness, might not be accorded
sufficient consideration during the
selection of remedy process.
ii. Site stabilization strategy. Another
wholly different strategy would assume
the objective of maximizing the number
of sites that could be addressed by the
Superfund program. To stretch the
resources of the trust fund, the vast
majority of sites initially would be
addressed in conjunction with the
Superfund removal program with only
interim remedial measures. Only those
sites or portions of sites for which
treatment was immediately necessary to
protect human health and the
environment might be addressed with
treatment This strategy would envision
two phases of CERCLA implementation:
the first a series of interim remedies to
stabilize sites and to prevent further
degradation: the second, implementation
of "permanent" remedies most often
involving substantial treatment This
second and final phase of remediation
would address the sites posing the worst
risks first
EPA seeks comments on the
appropriateness and desirability of
pursuing one of these alternative
strategies.
3. Analytical tools and techniques. In
addition to these overall approaches
and strategies, there are a number of
different analytical tools and
methodologies that could be employed
in the detailed analysis and/or selection
phases in a variety of ways and
combinations to come up with
additional variations. These tools and
techniques include screening against
threshold criteria, pair-wise comparison,
and ranking of alternatives or criteria.
These techniques are represented in
some of the approaches previously
described. Additional tools that could be
employed include scoring, which would
involve measuring alternatives against a
consistent scale, weighting of
alternatives or criteria in an explicit
fashion, and the techniques of decision
analysis which could be used to
construct a multi-attribute model that
incorporates the assumptions of exactly
how different criteria should be
considered in relation to one another in
assessing the attributes of alternatives.
This could be done on a programmatic
or site-specific basis.
EPA solicits comments on the
potential advantages and disadvantages
associated with these techniques, the
appropriateness of establishing them in
regulations or guidance, and
recommendations regarding alternative
approaches that might be established
using different combinations of these
methods.
D. Special Notice and Moratoria
A fundamental goal of the CERCLA
enforcement program is to facilitate
settlements, i.e., agreements securing the
voluntary performance or financing of
response actions by PRPs.'EPA believes
that settlements are most likely to occur
and will be most effective when EPA
interacts frequently and early in the
process with PRPs. The special notice
procedures in CERCLA section 122(e)
provide an important means of
encouraging interaction and improving
the prospects for settlement
Section 122(e] provides EPA with the
discretion to issue special notice letters
when to do so would facilitate
agreement and expedite remedial action.
Issuance of a special notice triggers a
moratorium during which EPA may not
commence a response action under
section 104(a) or an RI/FS under section
104(b), or initiate an enforcement action
under section 106. This moratorium
provides a "formal" period for EPA and
PRPs to negotiate a settlement.
Initially, the length of the special
notice moratorium is 60 days. If EPA
receives a good faith offer during this 60
day period, the moratorium is extended
an additional 30 days for RI/FS
negotiations as well as 60 days for RO/
RA negotiations, non-time-critical
removal negotiations, and enforcement
actions under section 106.
While "formal" negotiations pursuant
to a special notice will play a central
role in the settlement process, "formal"
negotiations should not be viewed as
the sole vehicle for reaching settlement.
To assure that "formal" negotiations are
productive, frequent interaction between
EPA and PRPs, through exchange and
"informal" discussions may be
appropriate outside of the "formal"
special notice moratorium. "Informal"
discussions are communications that
can occur between EPA and PRPs
throughout the response process.
The "Interim Guidance on Notice
Letters, Negotiations, and Information
Exchange," dated October 19,1987.
includes guidance to the Regions on the
use of the special notice procedures ana
on managing negotiation deadlines for
removal and remedial actions. In
addition, the "Interim Guidance:
Streamlining the CERCLA Settlement
Decision Process," dated February 12>
1987, includes guidance on managing
negotiation deadlines for the RI/FS and
RD/RA.
-------
federal JRegigter / Vol. 53, No. 345 / Wednesday. Oecember 21.1966 j Proposed Holes S1433
E. EPA'j Approach lor Ground-Water
Remediation Under the Super-fund
Program
It has been the policy of EPA'«
Superfund program for several yean to
operate within the frame work of EPA's
Ground-Water •Protection Strategy in
determining Ihe -appropriate remediation
for contaminated ground water at
CERCLA jites.:£PA'« Ground-Water
Protection Strategy establishes different
degrees of .protection for ground waters
based-on their vulnerability, use, and
value. EPA's Superfund program has
applied this concept in looking to
characteristics of vulnerability, use, and
value, among-other factors, in
formulating and evaluating remedial
alternatives for contaminated .ground
water. This section .summarizes 1he
approach EPA has presented in the
"Preliminary'Review Draft Guidance on
Remedial Actions for Contaminated
Ground Water at Superfund Sites"
(April. 1988).
The goal of EPA's Superfund approach
is to return usable ground waters to
their beneficial uses within a timeframe
that is reasonable given the particular
circumstances of the site. The Superfund
remedial process assesses the
characteristics of the affected ground
water as the first step toward making
three decisions: the level to Which "the
ground water-will be restored; the
timeframe within which the restoration
will occur; and-the most ajjpropriate
technology-or-approach for attaining
these go»ls. *3oi7ig'fhe'*^EPA Guidelines
forGround-"Water Classification" -(Draft,
December 1986) as a guide, a
determination n nurde as to Whether the
contaminated ground water falls •within
Class III. or III.
Class 1 gronnd -waters are resources of
unusually high value the tare-highly
vulnerable to contamination because of
the hydro logical-characteristics of the
areas where "they occur. They ere
characterized BS follows:
1. The ground water is irreplaceable
because no reasonable alternative
source of drinking water is-available to
substantial populations; or
2. The gronnd water is-ecologically
vital, providing the base flow Tor a
particularly sensitive ecological system
that supports a 'unique -habitat
Class II ground waters -are all non-
Class I ground waters that are currently
used or are potentially available for
drinking water or other beneficial uses.
Class Il-A ground waters are currently
used as a source of •drinking water,
Class Il-B ground waters are potential
drinking water sources.
Class III ground waters are not
considered to be potential sources of
drinking water-and -are of .limited
beneficial use. These are .ground waters
which are highly saline, or are otherwise
contaminated beyond levels that allow
restoration using methods reasonably
employed in public water treatment
systems. This condition must not be the
result of a release that is attributable to
a specific site. •Class III is further
distinguished'by the degree of
interconnection with adjacent water.
Class QI-A ground -waters are highly to
moderately interconnected; Class III-B
.ground waters 'have a low 'degree of
interconnection and are typically at
greater depths. CERCLA sites will rarely
involve Class 1I1-B ground-waters.
The lead agency will-us« the EPA
Guidelines for Ground-Water
Classification to assist in classifying the
ground water at a CERCLA site. Such
classifications are site-specific and
limited in scope to the .Superfund
remedial action .that will be undertaken.
Classifications performed by EPA's
' Superfund program do not apply to that
geographical area in general, to any
other actions that maybe-undertaken
under any other State or Federal
program, or :to private actions. The
classification scheme described above
may be superseded by other
classification schemes which may have
been-promulgated by a State and are
applicable or relevant and appropriate
to the CERCLA response. This approach
may also ibe-modified by State ARARs
that derive from wellhead protection
programs which may require protection
of a municipal -water-source, or
replacement if lhat .source is
contaminated.
The Superfund program'^ approach .to
ground-water remediation calls for
development-of a limited number of
ground-water remediation alternatives
•expressed in terms of a remediation
level (i.e., cleanup concentration in the
ground water), a time period for
restoration to the preliminary
remediation goals for all locations in the
area of attainment, and the technology
or approach-that will be used to achieve
those goals.
Preliminary remediation .goals are
established based on the analysis of
ARARs and other pertinent standards.
criteria, and advisories identified by the
lead and support agencies. For .ground
water that is or may be used for drinking
water (Class I or II], the maximum
contaminant levels (MCLe) set under the
Safe Drinking Water Act or more
stringent promulgated State standards
are generally the applicable-or relevant
and appropriate standard. (Fora fuller
discussion regarding when MCLs are
relevant and appropriate, see Subpart E.
5 300.430 preamble section. F.I3.
CERCLA-specified relevant and
appropriate requirements.) When MCLs
or State standards do not exist for
contaminants .identified in the ground
water at the site, Ihe Superfund program
looks to other ARARs, standards,
criteria, or advisories including:
proposed MCLs, health advisories,
drinking-water equivalent levels,
reference doses, risk specific doses,
water quality criteria, !MCLGs, proposed
MCLGs, or State health advisories. As
noted in the earlier discussion of
establishing protective remediation
goals during the RI/FS, -it -may to
necessary to make adjustments to these
levels when ARARs and other
standards, criteria, and advisories are
outside the 10"4 to 10"iTrisk range -which
EPA generally considers as protective at
CERCLA sites.
It should be noted that although MCLs
are .generally the cleanup standards, as
described above, the remedial action
necessary to attain an MCL level for the
most predominant chemical {or a
protective level fora chemical without
an MCL] usually results In other
chemicals achieving levels (hat are more
protective than their respective MCLs.
It should also be noted that the
Superfund program achieves
consistency with 40 CFR 264.94 of RCRA
Subpart F which .may be.ARAR to
CERCLA actions. These provisions offer
the choice of-establishing cleanup
standards at background, MCLs, or
alternate concentration limits (ACLs). In
setting remediation levels, -the
Superfund .program generally uses the
MCL or other health-based standards.
criteria,-or advisories which are the
equivalent of a health-based ACL under
F.CRA.
Restoration time periods refer to the
period of time needed to achieve
established remediation levels within
the entire area of attainment defined as
Ihe area from the-edge of any waste
that, as the final remedy, will be
managed on-site to the limits of the
contaminant plume. Restoration time
periods may range from very rapid (one
to five years) to relatively-extended
(perhaps several decades J.JEPA's
preference is for rapid restoration of
contaminated ground water that can be
used .for drinking water-wherever
practicable, particularly for Class 1
ground waters and ground waters
associated with drinking water supplies
described in CERCLA section 118 (i.e.,
where the release of hazardous
substances, pollutants or contaminants
has resulted in .the closing of drinking
water wells or has contaminated a
principal drinking -water supply). The
most appropriate timeframe must.
-------
51434 Federal Register / Vol. S3, No. 245 / Wednesday. December 21, 1988 / Proposed Rules
however, be determined through an
analysis of alternatives. The minimum
restoration timeframe will be
determined by hydrogeological
conditions, specific contaminants at a
site, and the size of the contaminant
plume. Once a determination of the
practical limits on the restoration
timeframe has been made, the
restoration timeframes for remedies can
be evaluated relative to these limits
based on the following factors:
i. Feasibility of providing an
alternative water supply,
ii. Current use of ground water,
iii. Potential need for ground water,
iv. Effectiveness and reliability of
institutional controls;
v. Ability to monitor and control the
movement of contaminants in ground
water,
vi. Cost; and
vii. Other environmental impacts.
If there are other readily available
drinking water sources of sufficient
quality and yield that may be used as an
alternative water supply, the importance
of rapid restoration of the contaminated
ground water is reduced. Where a future
demand for drinking water from ground
water is likely and other potential
sources are not sufficient, those
remedies which achieve more rapid
restoration should be favored.
The effectiveness and reliability of
institutional controls to prevent the
utilization of contaminated ground
water for drinking water purposes
during the restoration period should be
evaluated. If these controls are not
clearly effective, more rapid restoration
may be necessary. The availability of
good management and institutional
controls may provide a basis to extend
the period of response. Institutional
controls will usually be used as
supplementary protective measures
during implementation of ground-water
remedies as well.
The third variable in formulating and
evaluating ground water alternatives is
the technology or method that will be
used to achieve the remediation level
within the desired timeframe. EPA
expects that most ground water
remedies at CERCLA sites will involve
at least some pumping and treating.
Variation among alternatives often
stems from the aggressiveness of the
pumping scheme (e.g.. number of wells,
rate of extraction, whether or not
reinfection is included), the type of
treatment applied (e.g., air stripping),
and what is done with the residuals
from the treatment process. Typical
options for the treated effluent include
reinjection, discharge to surface water.
or discharge to a publicly owned
treatment works (POTW). Other more
passive, methods, such as gradient
control and slurry walls may be
appropriate to prevent the further
spread of contamination. In limited
cases, natural attenuation, which can
involve either the dispersion or actual
biodegradation of contaminants, may be
the most appropriate solution for a site.
There are special situations where it
may not be practicable to actively
restore ground water including sites
where there are: (a) Widespread plumes
resulting from non-point sources (e.g., •
some mining, pesticide, or industrial
areas); (b) Hydrogeological constraints
(e.g., aquifers with very low
transmissivity, or aquifers in fractured
bedrock or Karst formations); (c)
Containment constraints (e.g., the
presence of dense, non-aqueous phase
liquids which collect in "puddles" at the
base of an aquifer); and (d)
Physiochemical limitations (e.g.,
interactions between contaminants and
the aquifer material which limit the rate
at which they can be removed). In these
cases, the lead agency may provide
wellhead treatment and/or rely on
natural attenuation with institutional
controls as the final remedy.
The 1986 amendments to CERCLA
state a preference for treatment that
reduces the toxicity, mobility, or volume
of hazardous substances as a principal
element This preference applies to
ground water as well as source control
actions. Wherever ground water poses
one of the principal threats at a site, the
Superfund program will seek to pump
and treat if practicable. However, site
characteristics, such as fractured
bedrock or karst topography, may
preclude or severely hinder aggressive
pumping and treating options in certain
cases and dictate other ground-water
restoration methods. In other situations,
natural attenuation may achieve site
cleanup goals in a reasonable period of
time.
For Class I and 0 ground waters, the
Superfund program will consider several
different alternative restoration time
periods (including five years] and
methodologies to achieve the
preliminary remediation level and select
the most appropriate option (including
the final cleanup level) by balancing
trade-offs of long-term effectiveness,
short-term effectiveness, reductions of
toxicity, mobility, or volume,
implementability, and cost.
CERCLA section 121(d)(2)(B)(ii)
allows the use of ACLs if specified
conditions are met. EPA proposes to use
ACLs for the Class I and II ground water
when these conditions are met and
cleanup to MCLs or other protective
levels is determined not to be
practicable. When the likely point of
human exposure has been set beyond
the facility boundary, this provision
requires an analysis at the end of the
remedial action to determine whether
the ground water discharging into
surface water will cause a statistical
increase of contaminants in the surface
water. Moreover, such a remedial action
must include enforceable measures to
prevent use of any contaminated ground
water. In using this provision, the lead
agency would also consider an
alternative remedy that would partially
restore ground water to levels that could
reasonably be treated by public water
treatment systems.
For Class ID ground water (i.e., ground
water that is unsuitable for human
consumption due to high salinity or
widespread contamination and does not
have the potential to affect drinkable
ground water), drinking water standards
are neither applicable nor relevant and
appropriate. Likewise, restoration
timeframes and cleanup methods for
these ground waters will not be
formulated on the same basis as
drinkable ground waters. Rather,
alternatives should be developed based
on the specific site conditions. First a
determination must be made as to
whether the ground water has any
beneficial use (e.g., agricultural or
industrial). If so, a remediation level,
restoration time period, and method can
be tailored to returning the ground water
to that designated use. More typically,
concerns with Class ni ground waters
will center on potential discharge of the
contaminated ground water to surface
waters or "higher class" ground waters
and Superfund will establish a level
consistent with exposure-based ACLs
under RCRA Subpart F. Environmental
receptors and systems may well
- determine the necessity and extent of
ground-water remediation. In general.
alternatives for Class Ul ground waters
will be relatively limited and the
evaluation less extensive than for Class
I or n ground waters and the focus will
be on preventing adverse spread of the
contamination.
Complex fate and transport
mechanisms of contaminated ground
waters often make it difficult to
accurately predict the performance of
the ground-water remedial action.
Therefore, the remedial process must be
flexible and allow for changes in the
remedy based on the performance of
several years of operation. If the chosen
remedial action does not meet
performance expectations after a period
of operation, the decisionroaker should
decide the extent to which further or
different action is necessary and
-------
Federal Register / Vol. 63, No. 245 / Wednesday, December 21, *988 / Proposed Rules 5143--
appropriate to protect-human health-and
the environment
Widespread contamination due to
multiple sources isTiandled in .a .special
way by the Superfund program. At most
NPL sites, program policy .is to
determine contributors to the aquifer
contamination, and involve .them in the
overall response action. EPA wiO take
the lead role hi managing the overall
response if the NPL site is the primary
contributor tolhe multiple-source
problem. To (he extent.it can lie
determined, Superfund,participation In
the overall ground-water .remediation
•will be proportional to the contribution
the NPL sitc(s) makes to the areawide
problem. EPA may also lake any action
necessary to protect humantealth and
the environment such as .providing
alternate water supplies or wellhead
treatment if there is a reasonable belief
that the NPL sources in and of
themselves pose a-.threat to human
health and the environment.
-EPA solicits comment on .this
approach toward .ground-water
remediation at NPL-sites.
F. Compliance with the Applicable or
Relevant and Appropriate 'Requirements
of Other Laws
CERCLA mandates'that.remedial
actions be in compliance with other
environmental and public health.laws.
Compliance with other laws is a key
consideration throughout the remedial
selection process. This section discusses
achieving compliance with applicable or
relevant and appropriate requirements
{ARARs) under other laws in the
following order
1. The history of EPA's Compliance
Policy.
2. Codification of the Compliance
Policy in CERCLA Tcauthorization.
3. The definition of ARARs and Other
Information To Be Considered fTBC).
4. The difference between-applicable
requirements and relevant and
appropriate requirements.
5. Resolving ARAR disputes.
6.Types of ARARa.
7. State ARARs.
a Methods for-identifying ARARs.
8. Compliance with ARARs-and the
development and selection of remedies.
10. Circumstances in which ARARs
may be waived.
11. When and where ARARs and
TBCs associated with cleanup levels
must or should be attained.
12. Addressing -new ARARs -or-other
information after the initiation of Ihe
remedial action.
13. CERCLA-specified-relevant and
appropriate requirements.
14. ARARs for investigation-derived
waste.
15.-Substantive versus-administrative
requirements.
•16.-Potential ARARs of the Resource
Conservationand-Recovery Act
(RCRA).
17. Hypothetical examples of relevant
and appropriate requirements.
•(The relationship between ARARs
and determining remediation levels is
discussed in the { 300.430 preamble
section above, B.3.)
1. The history 4f£PA'* Compliance
Policy. The November .20,1985 .revisions
to the NCP .stated that, as a .general rule,
EPA's policy 4s to attain or exceed
applicable or relevant and appropriate
requirements -under .Federal
environmental and.public health laws in
CERCLA response actions. At that time
EPA revised existing { 300.88(i) of the
NCP to require that for all remedial
actions, the selected .remedy .must attain
or exceed the Federal ARARs identified
for that site. In the preamble to the 1985
revisions to the NCP, EPA stated that
' ARARs-could-only be detennined-on a
arte-by-site basis, gave examples of .how
this would work, and reprinted from
EPA's October 2,1985-Compliance
Policy a- list of Potentially Applicable or
Relevant and Appropriate
Requirements.^ well as a list of Other
Federal'Criteria, Advisories, Guidance.
and State Standards To Be Considered
(TBC). TBCs are non-promulgated
criteria, advisories, etc., that can be
consulted along with or in addition to
ARARs. From these lists, the lead
agency could select ARARs or TBCs,
based upon the circumstances at a
particular she. furthermore, -EPA
provided five limited circumstances in
which remedies that did not attain all
ARARs-could.be selected.
2. Codification of the Compliance
Policy in CERCLA Reautharization. On
October 17.1968, CERCLA was
.reauthorized with additional new
requirements. Section 121 -of CERCLA
requires (hat remedial actions-comply
with-Federal and more-stringent State
requirements -that -are legally applicable
or relevant and appropriate under the
circumstanccs'of-therelease or
threatened release-with respect to-any
hazardous substance or pollutant or
contaminant-that-will remain on-site.
EPA'sjpolicyis to-attain-or exceed such
ARARs during'the implementation of the
remedial action (where,pertinent to the
action itself) as well .as at the
completion of the-action, unless a
waiver is justified.
The term ARAR refers to .an
applicable or .relevant-end-appropriate
requirement; a single-requirement
cannot be -both applicable and'relevant
and appropriate.'However, when
reference is made to compliance with
" ARARs, the term refers to Such
requirements collectively and means
compliance with both applicable
requirements.and-relevant and
appropriate requirements.
Although-section 121(d) basically
codified EPA's 1985 policy "regarding
compliance with other laws, this-section
does add some requirements to the pool
of potential ARARs, The 1986 CERCLA
amendments provide that promulgated
-State standards that are more-stringent
than Federal standards are-also
potential ARARa for CERQLA remedial
actions. Where Jio federal ARAR exists
for a chemical,-location, or-action, but a
-State ARAR does exist or where a State
ARAR is-broader in scope than the
Federal ARAR, the State ARAR is
considered more stringent
furthermore, the CERCLA
amendments pro vide that Federal water
quality .criteria established under-the
Clean Water Act (CWA), and maximum
contaminant level goals (MCLGs)
established under (he Safe-Drinking
Water Act, must be attained when
found to be relevant-aad appropriate
under the circumstances of the-release
(see ARARs preamble section below,
"13. CERCLA-epecified-relevant and
appropriate requirements".).
CERCLA -retains-the .basic concept of
compliance with, ARARs .for any remedy
selected (unless a waiver is justified).
ARARs will be determined-by .the lead
agency based-upon its analysis-of-which
requirements are applicable or relevant
and appropriate to the .distinctive «et of
circumstances and actions'contemplated
eta specific site.
The requirements of CERCLA section
121 generally apply as a matter-of law
-only to remedial activities occurring-on
site. However, as a matter of policy,
EPA will attain ARARs to the extent
practicable considering the exigencies'Of
the .situation when carrying^out removal
actions (seej 300.415.preamble-section,
C.T.).
3. The definition of ARARs and TBCs
,(3§30C.!;xind:300.400(gJJ.fPA is
proposing nonsubstantive iclorificatiop.s
to the-definition .-of applicable
requirements.
i. Applicable.requirements. ERA
proposes that applicable requirements
are "I hose-cleanup standards, standards
of control andather.substantive
environmental protection requirements.
(criteria, 'or-limitations promulgated
under Federal or-State Jaw .that
specifically address-a hazardous
•substance, pollutant 'Contaminant
remedial action, location, or-other
circumstance at a OERCLA site." (See
the discussion of.defuiition revisions in
•today's Subpart A preamble section.)
-------
51436 Federal Register / Vol. 53. No. 245 / Wednesday, December 21. 1988 / Proposed Rules
Applicable requirements may be
identified on a site-specific basis by
determining whether the Jurisdictional
prerequisites of a requirement fully
address the circumstances at the site or
the proposed remedial activity. Some
typical Jurisdictional prerequisites
follow:
a. Who, as specified by the statute or
regulation, is subject to its authority;
b. The activities the statute or
regulation requires, directs, or prohibits;
c. The substances or places within the
authority of the requirement; and
d. The time period for which the
statute or regulation is in effect
Basically, in determining applicability,
the question is whether a regulation
would be legally enforceable at the site
(or for the contaminant or action) if a
private party were remediating the site
apart from any CERCLA authority.
The word "substantive" in the
proposed definitions of "applicable" and
"relevant and appropriate" is not meant
to imply a necessary level of
"significance" or "weight" for a
requirement to be an ARAR. Rather.
"substantive" is used to distinguish the
universe of ARARs from administrative
requirements, which are not considered
potential ARARs. (See ARARs preamble
section below, "15. Substantive versus
administrative requirements.")
ii. Relevant and appropriate
requirements. If a requirement is not
applicable, one must consider whether a
requirement is both relevant and
appropriate. EPA is also proposing
nonsubstantive clarifications to the
definition of relevant and appropriate
requirements. EPA proposes that
relevant and appropriate requirements
are "those cleanup standards, standards
of control, or other substantive
environmental protection requirements,
criteria, or limitations promulgated
under Federal or State law that while
not 'applicable' to a hazardous
substance, pollutant, or contaminant
remedial action, location, or other
circumstance at a CERCLA site, address
problems or situations sufficiently
similar to those encountered at the
CERCLA site that their use is well-
suited to the particular site."
Relevant and appropriate
requirements are also determined on a
site-specific basis by determining their
Jurisdictional prerequisites and
comparing them to the circumstances at
a CERCLA site. Once the decislonmalcer
determines that a requirement is not
applicable, the decisionmaker compares
the circumstances at the site to the
purpose and subject matter addressed
by the requirement in question to
determine if there is sufficient similarity
to find that the requirement is both
relevant and appropriate for the site.
Determining whether a requirement is
both relevant and appropriate is
essentially a two-step process. First, to
determine relevance a comparison is
made between the action, location, or
chemicals covered by the requirement
and related conditions of the site,
release, or potential remedy; a
requirement is relevant if the
requirement generally pertains to these
conditions. Second, to determine
whether the requirement is appropriate,
the comparison is further refined by
focusing on the nature of the substances,
the characteristics of the site, the
circumstances of the release, and the
proposed remedial action; the
requirement is appropriate if, based on
such comparison, its use is well-suited
to the particular site. Only those
requirements that are determined to be
both relevant and appropriate must be
complied with.
EPA proposes that the following
criteria, where pertinent to the type of
requirement hi question, be used to
determine whether there is sufficient
similarity to find that a requirement is
relevant and appropriate:
a. Whether the purpose for which the
requirement was created is similar to
the specific objectives of the CERCLA
action;
b. Whether the media regulated or
affected by the requirement are similar
to the media contaminated or affected at
the CERCLA site;
c. Whether the substances regulated
by the requirement are similar to the
substances found at the CERCLA site;
d. Whether the entities or interests
affected or protected are similar to the
entities or interests affected by the
CERCLA site;
e. Whether the actions or activities
regulated by the requirement are similar
to the remedial action contemplated at
the CERCLA site;
f. Whether any variances, waivers, or
exemptions of the requirement are
available for the circumstances of the
CERCLA site or CERCLA action;
g. Whether the type of place regulated
is similar to the type of place affected by
the CERCLA site or CERCLA action;
h. Whether the type and size of
structure or facility regulated is similar
to the type and size of structure or
facility affected by the release or
contemplated by the CERCLA action;
and
i. Whether any consideration of use or
potential use of affected resources in the
requirement is similar to the use or
potential use of the affected resource.
In determining which requirements
are relevant and appropriate, the pivotal
criteria differ depending upon the type
of requirement under consideration,
namely chemical-specific, location-
specific, or action-specific (see ARARs
preamble section below, "6. Types of
ARARs"). In general, for chemical-
specific requirements the focal point for
the relevant and appropriate
determination is whether the
requirement for the chemical at the
CERCLA lite sets a health- or
environmental-based level based on an
exposure scenario (including the
medium) that is similar to the potential
exposure at a CERCLA site. For
location-specific requirements, generally
the primary test for relevance and
appropriateness is whether the location
under consideration is sufficiently
similar to the location upon which the
requirement is based. For action-specific
requirements, generally the test for
relevance is whether the action
contemplated at the CERCLA site is
similar. In order to determine
appropriateness, the decisionmaker may
consider, among others, the following
factors: whether the action
contemplated at the site or the
circumstances at the site which require
an action, the substances involved, and
the objectives of the action are
sufficiently similar to the action-specific
requirement itself.
iii. Other information to be considered
(TBC). Other information that does not
meet the definition of ARAR may be
necessary to determine what is
protective or may be useful in
developing Superfund remedies.
Criteria, advisories, or guidance
developed by EPA, other Federal
agencies, or States may assist in
determining, for example, health-based
levels for a particular contaminant for
which there are no ARARs or the
appropriate method for conducting an
action. This other information to be
considered (TBC) when developing
CERCLA remedies generally falls within
three categories:
a. Health effects information with a
high degree of creditability, e.g., RfDs;
b. Technical information on how to
perform or evaluate site investigations
or response actions; and
c. Policy, e.g., EPA's ground-water
policy.
4. The difference between applicable
requirements and relevant and
appropriate requirements. Applicable
requirements and relevant and
appropriate requirements differ in the
amount of discretion allowed in
identifying them. Applicable
requirements are identified by a largely
objective comparison to the
circumstances at the site; if there is a
-------
Federal Register / Vol. 53, No. 245 / Wednesday, December 21. 1988 / Proposed Rules 51437
one-to-one correspondence between the
requirement and the circumstances at
the site, then the requirement is
applicable. There is little discretion
involved in this determination. If a
requirement is not applicable, the
decisiorunaker uses best professional
judgment to determine whether the
requirement addresses problems or
situations that are generally pertinent to
the conditions at the site (i.e., the
requirement is relevant) and whether
the requirement ia well-suited to the
particular site (i.e., the requirement is
appropriate). However, once a
regulation (or portion thereof) is
identified as relevant and appropriate, it
is applied as strictly as is an applicable
requirement.
Statutes and regulations are
sometimes made up of discrete
requirements, each requirement having
its own set of jurisdictional
prerequisites. EPA has found that within
these authorities often only some
requirements within a regulation are
relevant and appropriate. In contrast
with an applicable requirement.
flexibility exists to identify discrete
"appropriate" portions of a regulation
which may be mixed with "appropriate"
portions of other regulations in a
manner that makes good environmental
sense for the site. (See hybrid closure
example described in ARARs preamble
section below, "16.vi. Hypothetical
examples of compliance with RCRA:
closure requirements.")
The other requirements in that same
regulation may be relevant (in that they
address in a broad sense the same
problem as is faced at the CERCLA site)
but not appropriate because the
requirement is not well-suited to the
circumstances at the CERCLA site.
An example of a requirement that
may be relevant but not appropriate in
certain situations is the requirement to
cap landfills upon closure. This
requirement is designed to apply to
specific types of discrete units. This
requirement for closure of hazardous
wastes deposited on land may be
relevant because it addresses the same
kinds of wastes and action proposed at
a CERCLA site, but may be
inappropriate because of the physical
size and character of the contamination
at the CERCLA site. Although capping
may be appropriate for smaller areas, it
may not be appropriate in some
circumstances for large dispersed areas
of low-level soil contamination, *uch as
may be found at many large municipal
landfill facilities. (Other examples are
described in the ARARs preamble
section below, "16. Potential ARARs of
RCRA.")
5. Resolving ARAR disputes. Because -
judgment is involved in determining
which requirements are relevant and
appropriate. Federal, State, and
potentially responsible parties may on
occasion arrive at different conclusions.
EPA, operating in its oversight role for
CERCLA enforcement actions, will
resolve ARAR disputes between the
lead agency and the potentially
responsible parties. An ARAR dispute
between a State and EPA may be
submitted to the dispute resolution
process described in today's preamble
discussion of Subpart F on State
Involvement. If a State strongly desires
attainment of a substantive requirement
that has been determined by the dispute
resolution process not to be an ARAR,
such a requirement will be met if the
State demonstrates an ability and
willingness to pay for the additional
increment of expense associated with
attaining such a requirement Moreover,
, as discussed in today's preamble
Subpart F section. States may be
required to take the lead in the remedial
design and remedial action necessary to
meet such additional requirements.
6. Types of ARARs. For ease of
identification, EPA divides ARARs into
three categories: chemical-specific,
location-specific, and action-specific
Chemical-specific ARARs are usually
health- or risk-based numerical values
or methodologies which, when applied
to site-specific conditions, result in the
establishment of numerical values.
These values establish the acceptable
amount or concentration of a chemical
that may remain in, or be discharged to,
the ambient environment. For example,
the Safe Drinking Water Act requires
the establishment of maximum
contaminant levels (MCLs), the
maximum permissible level of a
contaminant in water which is delivered
to any user of a public water system.
MCLs are generally relevant and
appropriate as cleanup standards for
contaminated ground water that is or
may be used for drinking. (See ARARs
preamble section below, "13. CERCLA-
specified relevant and appropriate
requirements.")
Location-specific ARARs generally -
are restrictions placed upon the
concentration of hazardous substances
or the conduct of activities solely
because they are in special locations.
Some examples of special locations
include floodplains, wetlands, historic
places, and sensitive ecosystems or
habitats. Examples of location-specific
ARARs are the substantive
requirements of the Coastal Zone
Management Act and the Wild and
Scenic Rivers Act. Consideration must
also be given to whether locational
restrictions are prospective only (e.g.,
citing requirements) or whether they are
intended for existing situations.
Action-specific ARARs are usually
technology- or activity-based
requirements or limitations on actions
taken with respect to hazardous wastes
or requirements to conduct certain
actions to address particular
circumstances at a site. Remedial
alternatives which involve, for example,
closure or discharge of dredged or fill
material may be subject to ARARs
under RCRA and the Clean Water Act.
respectively.
These categories were developed to
assist in identifying ARARs and are not
necessarily precise. Some ARARs may
not fit into any one of these categories
while other ARARs may fit into two or
more of these categories. For example,
RCRA land disposal regulations can be
considered both chemical and action-
specific. (See EPA's draft "CERCLA
Compliance with Other Laws Manual,"
OSWER Directive No. 9234.1-01, which
provides detailed guidance on
identification of and compliance with
ARARs. The manual includes matrices
which group ARARs into the chemical-
specific, location-specific, and action-
specific categories.)
7. State ARARs (§ 300.400(g)(4)).
Section 121(d)(2)(A) of the amended
CERCLA states that remedies must
comply with "any promulgated
standard, requirement, criteria, or
limitation under a State environmental
or facility siting law that is more
stringent than any Federal standard,
requirement, or limitation" if applicable
or relevant and appropriate to the
hazardous substance or release in
question.
In ( 300.400(g)(4). EPA proposes to
define promulgated State requirements
as those laws or regulations that are of
general applicability and are legally
enforceable. State advisories, guidance,
or other non-binding guidelines as well
as standards that are not of general
applicability will not be considered
potential ARARs.
EPA's treatment of State ARARs is
fully consistent with the way EPA has
treated Federal requirements under the
current NCP, in which Federal
advisories and nonpromulgated
guidelines are put in a separate category
("other information to be considered")
from potential ARARs. Like their
Federal counterparts. State advisories
and other nonpromulgated guidelines
may still be considered in determining
an appropriate, protective remedy, but
neither Federal nor State advisories
should be treated as potential ARAP.*.
-------
51438 Federal Register / Vol. S3, No. 245 / Wednesday, December 21, 1980 / Proposed Rules
Further, unless limitations found in site-
specific State permits are based on
promulgated ARARs, such limitations
will not be considered potential ARARs.
however widely they may be used in the
State. However, frequently used permit
limitations may be considered in
fashioning a protective remedy for a
site.
The phrase "legally enforceable"
refers to State regulations or statutes
which contain specific enforcement
provisions or are otherwise enforceable
under State law. EPA expects that State
laws or standards which are considered
potential ARARs have been issued in
accordance with State procedural
requirements. The phrase "of general
applicability" is meant to preclude
consideration of State requirements
promulgated specifically for one or more
CERCLA sites as potential ARARs. EPA
believes that Congress did not intend
CERCLA actions to comply with
requirements that would not also apply
to other similar situations in that State.
This interpretation is consistent with the
statutory qualification on State siting
requirements banning land disposal in
CERCLA section 121(d)(Z)(C)(iii)(I) and
the waiver for inconsistently applied
State standards in CERCLA section
121(d)(4)(E). For a State requirement to
be a potential ARAR it must be
applicable to all remedial situations
described in the requirement, not just
CERCLA sites.
General State goals that are contained
in a promulgated statute and
implemented via specific requirements
found in the statute or in other
promulgated regulations are potential
ARARs. For example, a State
antidegradation statute which prohibits
degradation of surface waters below
specific levels of quality or in ways that
preclude certain uses of that water
would be a potential ARAR. Where such
promulgated goals are general in scope.
e.g., a general prohibition against
discharges to surface waters of "toxic
materials in toxic amounts," compliance
must be interpreted within the context
of implementing regulations, the specific
circumstances at the site, and the
remedial alternatives being considered.
8. Methods for identifying ARARs.
The preamble sections above regarding
RI/FS and selection of remedy generally
describe when ARARs and TBCs are
identified and analyzed (e.g., during
"project scoping," "remedial
investigation," etc.). This section
explains how ARARs can be identified
during those stages.
The identification of ARARs
necessarily begins with a review of the
universe of Federal and State
requirements to determine the potential
ARARs that may be applied at a site
(see Subpart F preamble regarding
identification of State ARARs).
Examples of potential Federal and State
ARARs and TBCs are included in the
next Subpart E, § 300.430 preamble
section, "G." As more is learned about
the site and as remedial alternatives are
considered. Federal and State
requirements can be narrowed to those
which are potential ARARs for each
alternative.
ARARs are identified with increasing
certainty as the RI/FS process proceeds.
For example, the purpose of site
characterization during the remedial
investigation phase is to provide data
regarding contaminants or chemicals
present in the release, the extent of
contamination, and the specific location
and characteristics of the site. These
data assist in identifying more
specifically the potential chemical- and
location-specific ARARs. Likewise, as
more details regarding remedial
alternatives are developed, potential
action-specific ARARs can be identified.
During the detailed analysis and
selection of remedy phases, the
dccisionmaker must compare the
potential ARARs to the known
information regarding conditions at the
site and the remedial alternatives to
determine if the potential ARARs are, in
fact, actually applicable or relevant and
appropriate to the response action. More
ARARs may need to be identified during
remedial design as the specific details of
the remedial action are developed. (See
also ARARs preamble section below,
"12. Addressing new ARARs or other
information after the initiation of the
remedial action.")
5. Compliance with ARARs and the
development and selection of remedies.
In the 1935 revisions to the NCP, EPA
required the development of five
remedial alternatives, primarily based
upon their relative attainment of
ARARs. As discussed in today's
preamble section regarding RI/FS and
selection of remedy, remedies would no
longer be developed along this scale
although all remedies, except those
invoking a waiver, must attain ARARs.
EPA proposes, however, to continue
to rely en ARARs to guide the lead
agency in formulating appropriate
hazardous waste response alternatives.
For example, an ARAR may indicate an
acceptable concentration of a
contaminant in soil. An alternative that
includes excavation of contaminated
media at a site would use that ARAR to
determine the extent of excavation.
Additionally, ARARs may indicate the
amounts of hazardous substances that
can be emitted or discharged during or
after treatment. EPA recognizes,
however, that there may be situations in
which ARARs will not exist or will not
be sufficient to protect human health
and the environment.
Nonetheless, a proposed remedial
alternative's attainment of ARARs does
not determine whether that alternative
should be chosen over another
alternative that attains a different set of
ARARs (or qualifies for waivers from
ARARs). The decision on which
alternative to select is made at the end
of the process and is based on the
balancing of the selection of remedy
criteria. ARARs will differ depending
upon the specific actions and objectives
of each alternative being considered.
e.g.. an alternative that would remove
and treat all contaminants from the site
would invoke clean closure and
treatment ARARs whereas an
alternative that leaves waste in place
would invoke only landfill closure
ARARs (see ARARs preamble section
below, 'ie.vi. Hypothetical examples of
compliance with RCRA: closure
requirements").
10. Circumstances in which ARARs
maybe waived § 300.430(f)(3)). CERCLA
reauthorization modified somewhat the
current NCP's five limited circumstances
in which all ARARs need not be
attained. CERCLA eliminated the
"enforcement exception," basically
codified the remaining four waivers, and
added two new waivers—one for
circumstances in which a State standard
has been inconsistently applied in other
remedial actions within a particular
State, and another for circumstances in
which the same level of protectiveness
offered by an ARAR may be achieved
by using a different method or
technology with an equivalent standard
of performance. These waivers apply
only to meeting ARARs with respect to
remedial activities occurring on-site. A
waiver must be invoked for each ARAR
that will not be attained or exceeded.
Other statutory requirements, such as
that remedies are to be protective of
human health and the environment, and
that remedies must be cost-effective,
cannot be waived. The waivers
provided by CERCLA section 121(d)(4),
some circumstances under which each
waiver might be invoked, and criteria
for invoking the waivers are discussed
below.
i. Interim Measures.
(l'|he remedial action selected is only part
of a total remedial action that will attain tuch
level or standard of control when completed.
CERCLA section 121(d)(4}(A).
This waiver will generally be
applicable to interim measures that are
expected to be followed within a
-------
Federal Register / Vol. 53. No. 245 / Wednesday, December 21, 1988 / Proposed Rules 51439
reasonable time by complete measures
that will attain ARARs. The interim
measures waiver may apply to sites at
which a total site remedy is divided into
several smaller actions.
For example, the selected remedy at a
site may include excavation and
treatment of the source. However, the
treatment method may require
treatability testing or time for set-up or
construction. During this time, an
interim measure involving stabilization
of the source, such as by use of a cap,
may be appropriate. In such a
circumstance, the interim measure
waiver would allow the temporary
stabilization actions at the cite to
constitute the initial components of a
phased remedial response; these actions
would not be required to attain landfill
closure ARARs because the response
would not be complete.
Factors that are appropriate for •
invoking this waiver include:
a. Potential for exacerbation of site
problems. The interim measure should
not directly cause additional migration
of contaminants, complicate the site
response, or present an immediate
threat to human health or the
environment; and
b. Noninterference with final remedy.
The interim measure selected must not
interfere with, preclude, or delay the
final remedy, consistent with EPA's
priorities for taking further action.
EPA invites comment on its
interpretation of this waiver and on
these factors.
ii. Greater Risk to Health and the
Environment.
(C)ompliance with such requirement at the
facility will result in greater risk to human
health and the environment than alternative
options. CERCLA section 121(d)(4)(B).
EPA suggests that this waiver be
invoked when compliance with an
ARAR poses greater risks than
noncompliance with that ARAR. This
waiver could be used for a remedial
alternative that would otherwise cause
greater environmental damage or health
risks solely because a particular ARAR
had to be attained. For example, an
alternative may include cleanup of PCBa
at a site. However, attaining the ambient
concentration level for PCBs spread
throughout river sediment might require
widespread dredging of the sediments,
causing an unacceptable release of the
pollutant to the water body and
damaging or disrupting the ecosystem.
Waiving the ARAR for ambient PCS
concentrations in the river sediment
would eliminate the need to conduct
such harmful dredging.
Meeting an ARAR could also pose
greater risks to workers or residents. For
example, excavation of a particularly
toxic, volatile, or explosive waste to
meet an ARAR could pose high, short-
term risks. If protective measures were
not practicable for such excavation, use
of this waiver might be appropriate.
Specific factors that may be
considered in invoking the waiver for
preventing greater risks include:
a. Magnitude of adverse impacts. The
risk posed or the likelihood of present or
future risks posed by the remedy using
the waiver should be significantly less
than that posed by the totally compliant
remedy posing the risk;
b. Duration of adverse impacts. The
more long lasting the risks from the
totally compliant remedy, the more this
waiver becomes appropriate; and
c. Reversibility of adverse impacts.
This waiver is especially appropriate if
the risks posed by meeting the ARAR
could cause irreparable damage.
Remedies protective of human health
and the environment but not meeting all
ARARs should be compared to the
remedy meeting ARARs that causes the
minimum adverse impacts. The
additional public health and
environmental benefits of not meeting
all ARARs must be weighed against the
adverse impacts caused by meeting all
ARARs. Only the ARARs that cause the
greater risk are eligible to be waived.
iii. Technical Impracticability.
[Compliance with such requirement is
technically impracticable from an engineering
perspective. CERCLA section 121(d)(4)(C).
The term "impracticable" implies an
unfavorable balance of engineering
feasibility and reliability. EPA believes
that the term "engineering perspective"
used in the statute implies that cost,
although a factor, is not generally the
major factor in the determination of
technical impracticability. However, a
remedial alternative that is feasible
might be deemed technically
impracticable if it could only be
accomplished at an inordinate cost
Furthermore, the use of the term
"impracticable" implies that remedies
that are not demonstrated but that are .
thought to be feasible cannot be
eliminated because of this waiver. Thus,
EPA suggests using this waiver for cases
where: (a) neither existing nor
innovative technologies can reliably
attain the ARAR in question, or (b)
attainment of the ARAR in question
would be illogical or infeasible from an
engineering perspective.
EPA suggests that the technical
impracticability waiver should be
invoked when either of the following
specific criteria are met:
(1) Engineering feasibility. The
current engineering methods necessary
to construct and maintain an alternative
that will meet the ARAR cannot
reasonably be implemented.
(2) Reliability. The potential for the
alternative to continue to be protective
into the future is low, either because the
continued reliability of technical and
institutional controls is doubtful, or
because of inordinate maintenance •
costs.
iv. Equivalent Standard of
Performance.
fTJhe remedial action selected will attain a
standard of performance that Is equivalent to
that required under the otherwise applicable
standard, requirement, criteria, or limitation. •
through use of another method or approach.
CERCLA section 121(d)(4j(D).
EPA proposes to use this waiver in
situations where an ARAR stipulates
use of a particular design or operating
standard, but equivalent or better
remedial results (e.g., contaminant
levels or reliability) could be achieved
using an alternative design or method of
operation. For instance, an alternative
may involve reduction of either the
mobility or toxicity of a hazardous
substance through a specified form of
treatment The waiver may be invoked
where a substitute form of treatment
from that specified by an ARAR (e.g..
fixation instead of incineration)
achieves comparable reductions in
either mobility or toxicity.
The CERCLA Reauthorization
Conference Committee's Statement of
Managers makes the following point
with regard to this waiver.
Subsection [121](d)(4)(D] allows the
selection of a remedial action that does not
comply with a particular Federal or State
standard or requirement of environmental
law, where an alternative provides the same
level of control as that standard or
requirement through an alternative means of
control. This allows flexibility in the choice
of technology but does not allow any lesser
standard or any other basts (such as a risk-
based calculation) for determining the
required level of control. However, an
alternative standard may be risk-based if the
original standard was risk-based. H. Rep. 99-
962, 99th Cong., Zd Sess. 249.
EPA invites comments on the
following necessary conditions for
invoking this waiver.
a. Degree of protection of health.
welfare, and the environment (e.g.,
environmental concentration achieved)
is equal to or greater than that under the
original ARAR;
b. The level of performance achieved
is equal to or better than that specified
by the ARAR (e.g., concentration of
residual);
c. The potential for the alternative
ARAR to continue to be protective into
-------
51440 Federal Register /Vol. 53, No. 245 / Wednesday. December 21. 1988 / Proposed Rules
the future is equal to or greater than that
afforded by the ARAR to be waived;
and
d. The time required to achieve
beneficial results using the alternative
remedy is not significantly more than
the original ARAR. An alternative that
achieves similar results in significantly
less time should be considered as
advantageous.
v. Inconsistent Application of State
Requirements.
[W]ith respect to a State standard,
requirement, criteria, or limitation, the State
hat not consistently applied (or demonstrated
the intention to consistently apply) the
standard, requirement, criteria, or limitation
in similar circumstances at other remedial
actions. CERCLA section lZl(d)(4)(E).
This waiver is intended to prevent
unjustified or unreasonable restrictions
from being imposed on remedial actions.
The issues raised by this waiver are
closely tied to those involved in the
definition of "promulgated" (see ARARs
preamble section above, "7. State
ARARs").
EPA envisions using this waiver in
two situations. First State requirements
may have been developed and
promulgated but never applied because
of a lack of applicability in past
situations. EPA believes that such
requirements should not be applied in
CERCLA actions where there is
evidence thai the State does not intend
to apply thsm elsewhere. Second, State
standards that have been variably
applied or inconsistently enforced may
give reason to invoke the inconsistent
application waiver. A standard is
presumed to have been consistently
applied unless there is evidence to the
contrary.
Consistency of application may be
determined by:
a. Similarity of sites or response
circumstances (nature of contaminants
or media affected, characteristics of
waste and facility, degree of danger or
risk, other hazardous waste
management programs, etc.);
b. Proportion of noncompliance cases
(including enforcement actions);
c. Reason for noncompliance;
d. Intention to consistently apply
future requirements as demonstrated by
policy statements, legislative history,
site remedial planning documents, or
State responses to Federal-lead sites;
newly promulgated requirements shall
be presumed to embody this intention
unless there is contrary evidence.
vi. Fund Balancing.
(I]n the caie of • remedial action to be
undertaken solely under Section 104 using the
Fund, (election of a remedial action that
attains such level or standard of control will
iot provide a balance between the need for
protection of public health and welfare and
the environment at the facility under
consideration, and the availability of
amounts from the Fund to respond to other
sites which present or may present a threat to
public health or welfare or the environment.
taking into consideration the relative
immediacy of such threats. CERCLA section
121(dX4)(F).
The Fund-balancing waiver may be
invoked when meeting an ARAR would
entail such cost in relation to the added
degree of protection or reduction of risk
afforded by that standard that remedial
action at other sites would be
jeopardized. [Even with this waiver, the
remedy must still comply with the
statutory requirement to be protective of
human health and the environment)
EPA suggests that the Fund-balancing
waiver be used when attainment of the
ARAR would significantly reduce the
availability of Fund monies for other
sites (considering the number of other
sites and the. expected cost of
remediations). Projections should show
that significant imminent threats from
other sites may not be addressed under
the current Fund if the ARAR were
attained.
EPA intends to establish the use of a
dollar threshold for routinely
considering invoking the Fund-
balancing waiver. The threshold would
be based on an amount significantly
higher than the average cost of
remediating sites with problems similar
to those at the site under consideration,
e.g., large municipal landfills. Further,
EPA intends to develop specific criteria
for invoking the waiver. EPA solicits
comment on the proposal to establish a
dollar threshold and on what other
specific criteria should be established
for invoking the waiver.
11. When and where ARARs and
TBCs associated with cleanup levels
must or should be attained. This section
discusses the place and the time EPA
intends that ARARs or TBCs related to
contaminant levels or performance or
design standards be achieved, i.e., the
point of compliance.
i. When ARARs must and TBCs
should be attained. Although not
compelled by statute, EPA is proposing
that the applicable or relevant and
appropriate requirements of other laws
pertinent to a remedial action itself must
be met during the conduct of the
remedial action as well as at the
completion of the remedial action unless
a waiver is invoked (see § 300.43S(b)(2)).
Some examples of potential ARARs for
the conduct of remedial activities
include the RCRA treatment storage,
and disposal requirements, restrictions
on emissions discharges based upon the
dean Air Act national ambient air
quality standards, and CWA effluent
discharge limitations.
fi. Where ARARs must and TBCs
should be attained Sometimes the
ARAR itself will specify where the
requirement should be attained. For
example, the Clean Water Act
requirement to apply best available
technology controls to discharges of
toxic pollutants to receiving waters is
measured for compliance at the
discharge point (i.e., the "end-of-the-
pipe")-
However, at sites where an ARAR
does not specify where it is to be
attained or where a TBC value is used to
set an acceptable level of exposure, the
lead agency has the discretion to
determine where the level shall be
attained to ensure protectiveness.
Generally, EPA's policy is to attain
ARARs and TBCs pertaining either to
contaminant levels or to performance or
design standards so as to ensure
protection at all points of potential
exposure. This means that any waste
left in place should either be brought to
levels that allow for unrestricted use
and unlimited exposure or managed
according to performance or design
specifications; if active measures are not
practicable and coat-effective, exposure
to the waste must be controlled through
legally enforceable institutional means.
(See Subpart E, 5 300.430 RI/FS and
selection of remedy preamble
introductory section for discussion
regarding institutional controls.)
Depending on the site circumstances,
exposure pathways may include
ingestion of ground or surface water,
contact with or ingestion of soil, and
inhalation. At each potential point of
exposure, EPA assumes a maximum
reasonable exposure scenario and sets
the goats that will ensure protectiveness
for each response. For instance, if any
hazardous substances remain at a site,
exposure by direct contact should be
considered in fashioning a protective
remedy- Hazardous substances that
present a direct contact threat should be
treated or covered to the appropriate
degree. If a waste management area is
left at a site, ground water should attain
the appropriate cleanup levels at the
edge of the area.
12. Addressing new ARARs or other
information after the initiation of the
remedial action. EPA recognizes that
subsequent to the initiation of the
remedial action new standards based on
new scientific information or awareness
may be developed and that these
standards may differ from the cleanup
standards on which the remedy was
based.
-------
Federal Register / Vol. 53, No. 245 / Wednesday, December 21, 1986 / Proposed Rules 51441
EPA believes that such new ARARs or
other information should be considered
aa part of the review conducted at least
every five years under CERCLA section
121 (c) for sites where hazardous
substances remain on-site. The review
requires EPA to assure that human
health and the environment are being
protected by the remedial action. Hence,
the remedy should be examined in light
of any new standards that would be
applicable or relevant and appropriate
to the circumstances at the site and in
light of any other pertinent new
information in order to ensure that the
remedy is still protective. In certain
situations, new standards or the
information on which they are based
may indicate that the site presents a
significant threat to health or
environment. If such information comes
to light at times other than at the five-
year reviews. EPA will consider the
necessity of acting to modify the remedy
at such times.
13. CERCLA-specifiedrelevant and
appropriate requirements—i. Safe
Drinking Water Act standards. CERCLA
section 121[d)(2)(A) states that a
remedial action will attain a level or
standard of control established under
the Safe Drinking Water Act (SDWA),
among other statutes, where such level
or control is applicable or relevant and
appropriate to any hazardous substance,
pollutant, or contaminant that will
remain on-site. The enforceable
standards under the SDWA are
maximum contaminant levels (MCLs).
which represent the maximum
permissible level of a contaminant in
water which is delivered to any user of
a public water system. Section
121(d)(2)(A) also states that such
remedial action shall require a level or
standard of control which at least
attains Maximum Contaminant Level
Goals (MCLG) established under the
SDWA where relevant and appropriate
under the circumstances of the release
or threatened release. The following
discussion addresses how to choose
between these two standards.
Under the SDWA. MCLGs are health-
based goals set at levels at which no
adverse health effects may arise, with a
margin of safety. An MCL is required to
be set as close as feasible to the
respective MCLG. taking into
consideration the best technology,
treatment techniques, and other factors
(including cost). As the enforceable
standard for public water supplies,
MCLs are fully protective of human
health and. for carcinogens, fall within
an acceptable individual lifetime risk
range of 10"4 to 10"*. For
noncarcinogens, which are the majority
of chemicals to be controlled, MCLs will
nearly always be set at MCLGs.
Therefore, in many cases, the MCL will
be equivalent to the MCLG.
In a guidance document published last
year in the Federal Register, "Superfund
Program: Interim Guidance on
Compliance with Applicable or Relevant
and Appropriate Requirements," 52 PR
32496 (August 27,1987), EPA stated its
policy that for surface or ground water
that is or may be used for drinking,
MCLs are generally relevant and
appropriate as cleanup standards. The
basis for this policy was that MCLs are
protective of human health and
represent the level of water quality that
EPA believes is acceptable for over 200
million Americans to consume every
day from public drinking water supplies.
EPA recognizes that there may be
special circumstances where protection
of human health requires more stringent
standards than MCLs, as with multiple
contaminants or pathways of exposure.
In such cases, EPA will make a site-
specific determination whether risk
posed by such multiple contaminants or
pathways is in excess of 10" * and,
therefore, of the need for more stringent
standards, considering MCLGs, EPA's
policy on use of appropriate risk ranges
for carcinogens, levels of quantification,
and other pertinent guidelines.
Many commenters agreed with EPA
because MCLs are fully protective of
human health. Comments in support of
the guidance noted that the range of risk
for MCLs is within EPA's acceptable
risk range and that MCLGs are often not
achievable given current technology
because many MCLGs are set at the
zero risk level. Further, requiring MCLGs
at CERCLA sites would impose a more
restrictive requirement than exists for
the drinking water consumed by most
households in the country. Also noted
was that MCLs are legally applicable at
the point of use, generally the tap or at a
well used for supplying drinking water.
Application of MCLs to cleanup of
ground water at a CERCLA site that is
or may be used for drinking, therefore,
imposes a more stringent standard than
exists under the SDWA.
Other commenters on the interim
ARARs guidance disagreed with EPA's
proposal and asserted that section 121
required that MCLGs generally be the
cleanup standards for ground water at
CERCLA sites. Some opponents argued
that section 121 specifically prohibited
consideration of cost-effectiveness in
choosing a relevant and appropriate
cleanup standard until after a standard
that protects human health and the
environment is selected. Therefore, they
argued, application of MCLs as the
relevant and appropriate standard is
inconsistent with the statute because
cost and available technology factors
are considered in the development of
MCLs.
In summary, the commenters
presented divergent opinions on this
specific issue. After review of
comments, EPA believes that the
interpretation articulated in the interim
ARARs guidance is correct and that
section 121 permits the use of MCLs as
generally relevant and appropriate
cleanup standards for the following
reasons. Under section 121, it is EPA's
responsibility to determine what
standards are applicable or relevant and
appropriate at a site, a determination
made on a case-by-oae basis within
general EPA program guidelines.
Although section 121(d)(2)(A) does not
specifically refer to cleanup of
contaminated ground water to its
beneficial uses, CERCLA actions will
generally use SDWA standards for
ground water that is or could be used for
drinking. EPA" believes that MCLs. the
enforceable standards under the SDWA,
are the appropriate standard because
they represent the level of quality for the
nation's drinking water supplies. (The
application of SDWA standards to the
cleanup of ground water is also
discussed in the $ 300.430 preamble
section above, "E. EPA's Approach for
Ground-Water Remediation under the
Superfund Program.")
Using MCLs as relevant and
appropriate standards is consistent with
EPA's use of a risk range to determine
acceptable levels of residuals of
carcinogens. CERCLA does not require
that EPA eliminate all risk. Therefore,
EPA believes that generally a risk range
of 10"* to 10"' incremental individual
lifetime cancer risk for carcinogens
fulfills its statutory mandate to protect
human health and the environment
MCLs for carcinogens are set within this
risk range. For noncarcinogens, MCLs
will nearly always be set at MCLGs,
thus assuring that even sensitive
populations will experience no adverse
health effects. Since the majority of
chemicals encountered at sites are
noncarcinogens, there will be no
difference in the protectiveness of
MCLGs and MCLs for most
contaminants.
Furthermore, even though cost and
available technology may be considered
when setting an MCL, an MCL is
protective and therefore achieving an
MCL complies with CERCLA's mandate
to protect human health and the
environment
(See also EPA's interpretation of
CERCLA section 121(d)(2)(B)(ii)
-------
51442 Federal Register / Vol. 53. No. 245 / Wednesday. December 21. 1988 / Proposed Rules
regarding the use of alternate
concentration limits (ACLs) as cleanup
standards for ground water that is or
may be used for drinking in the § 300.430
preamble section above, "E. EPA's
Approach for Ground-Water
Remediation under the Superfund
Program.")
ii. Federal Water Quality Criteria.
EPA develops two kinds of Federal
Water Quality Criteria (FWQC). one for
protection of human health and another
for protection of aquatic life. FWQC are
non-enforceable guidelines used by the
States to set Water Quality Standards
(WQS) for surface water. FWQC, which
identify threshold level concentrations
for noncarcinogens and concentrations
equating to various risk levels for
carcinogens, guide States in assessing
the toxicity of a contaminant States
designate the use of a given water body
based on its current and potential use
and apply the FWQC to set pollutant
levels that are protective of that use.
State WQS, which can be narrative or
expressed as a numerical concentration
limit, are subject to EPA approval
If a State has promulgated a
numerical WQS that applies to the
contaminant and the designated use of
the surface water at a site, the WQS will
generally be applicable or relevant and
appropriate for determining cleanup
levels, rather than an FWQC. A WQS
represents a determination by the State,
based on the FWQC. of the level of
contaminant which is protective in that
surface water body, a determination
subject to EPA approval.
CERCLA 12l(d)(2) requires that, hi
determining whether an FWQC is
relevant and appropriate, the latest
information available be considered.
Thus, an FWQC may be relevant but not
appropriate if its scientific basis is not
current. EPA's recommended RfDs and
cancer potency factors, which are based
on the EPA's evaluation of the latest
information, should be used when an
FWQC does not reflect current
information.
CERCLA 121(d)(2) also requires that
the designated or potential use of the
surface or ground water and the
purposes for which the criteria were
developed be considered in determining
whether a FWQC is relevant and
appropriate.
The purpose of the FWQC for human
health is to identify protective levels
from two routes of exposure—exposure
from drinking the water and from
consuming aquatic organisms, primarily
fish. There are levels provided for
exposure from both routes, and from fish
consumption alone. Whether a FWQC is
relevant and appropriate, and which
form of the criteria is appropriate.
depends on whether exposure via either
or both cf these routes is likely to occur,
and thus on the designated use of the
water body.
As discussed in the section above,
MCLs represent the level of quality EPA
has determined to be safe for drinking
and thus are generally relevant and
appropriate for ground water that is or
may be used for drinking and for surface
water designated as a current or
potential drinking water supply.
Therefore, when a promulgated MCL
exists, the FWQC for that constituent
would not be relevant and appropriate.
However, when MCLs are not available,
a FWQC may be relevant and
appropriate in water that is a potential
drinking water source.
Since MCLs only reflect exposure
from drinking the water, a FWQC for
consumption of aquatic organisms may
be appropriate in addition to the MCL,
resulting in a more stringent cleanup
level, when that route is also a concern
at the site.
FWQC without modification are not
relevant and appropriate in selecting
cleanup levels in ground water, where
consumption of contaminated fish is not
a concern. However, a FWQC may be
adjusted to reflect only exposure from
drinking the water. Alternatively, the
use of EPA-recommended RfDs and
cancer potency factors, following a
methodology similar to that used to
develop the drinking water portion of
the FWQC, could serve as a guideline
for cleanup if the FWQC is not current
A FWQC adjusted for drinking water
could also be relevant and appropriate
in surface water designated for drinking
water purposes, since the FWQC is
specifically designed to be protective of
that use. Whether a FWQC that also
includes fish consumption should be
selected depends on the likelihood of
exposure occurring from this route and
on whether fishing is included in the
State's designated use.
If the State has designated a water
body for recreation, a FWQC reflecting
fish consumption only, not drinking the
water, may be relevant and appropriate
if fishing is Included La that designation.
Generally, FWQC are not relevant
and appropriate for other uses, such as
industrial or agricultural use. since
exposures reflected in the FWQC are
not likely to occur.
A FWQC for protection of aquatic life
may be relevant and appropriate for a
remedy involving surface waters (or
ground-water discharges to surface
water) when the designated use requires
protection of aquatic life or when
environmental concerns exist at the site.
If protection of human health and
aquatic life are both a concern, the more
stringent standard or criteria should
generally be applied.
A State numerical WQS is essentially
a site-specific adaptation of a FWQC,
subject to EPA approval, and, when
available, is generally the appropriate
standard for the specific water body,
rather than a FWQC. If both an MCL
and numerical State WQS exist for the
same constituent where the water is
designated for drinking, the State WQS
should be used if it is more stringent as
required by CERCLA section
In sum, a FWQC, or component of the
FWQC, may be relevant and
appropriate when the FWQC is intended
to protect the uses designated for the
water body at the site, or when the
exposures for which the FWQC are
protective are likely to occur. To be
considered relevant and appropriate,
FWQC must also reflect current
scientific information. In addition,
whether e FWQC is relevant and
appropriate depends on the availability
of standards, such as an MCL or WQS,
specific for the constituent and use.
14. ARARs for investigation-derived
waste. EPA believes that the CERCLA
section 121 requirement that remedial
activities comply with Federal and State
ARARs applies not only to the
implementation of the remedy selected
for a site, but also to the handling,
treatment, or disposal of investigation-
derived wastes produced during
remedial activities, such as the SI or RI/
FS.
Specifically, there are several ways
that investigation-derived wastes may
result from such remedial activities.
Examples include the following: (i)
Ground water or surface water samples
that must be disposed of after analysis:
(ii) drill cuttings or core samples from
soil boring or monitoring well
installations; (iii) purge water removed
from sampling wells before ground
water samples are collected; (iv) water,
solvents, or other fluids used to
decontaminate field equipment such as
backhoes. drilling rigs, and pipes; (v)
condensate from pipes used for gas
sampling in landfills; and (vi) waste
produced by on-site pilot-scale facilities
constructed to test technologies best
suited for remediation of the site.
The handling, treatment or disposal
of any such investigation-derived
wastes must satisfy Federal and State
requirements that are applicable or
relevant and appropriate to the site
location and the amount and
concentration of the hazardous
substances, pollutants, or contaminants
involved. EPA intends that field
investigation teams use best
-------
Federal Register / Vol. 53. No. 245 / Wednesday. December 21, 1988 / Proposed Rules 51443
professional judgment in determining
when investigation-derived wastes may
contain hazardous substances and to
handle such substances in accordance
with all Federal and State ARARs. For
example, if ground-water samples
containing hazardous substances are to
be disposed of by discharge into surface
water, they may require treatment
before disposal so that water quality
standards are not violated. Also, if it is
known or suspected that purge waters
are drawn from an area with significant
dioxin contamination, EPA expects that
such investigation-derived wastes will
be containerized, tested, and disposed
of in accordance with all ARARs.
(Consistent with established practice,
investigation-derived materials may
remain on-site until the remedial action
commences.) In contrast the routine
containerization and testing of large
volumes of drilling muds and purge
waters v.-hich are not suspected to
contain hazardous substances may be
unnecessary because they result only in
delays to the investigation with no
attendant public health or
environmental benefit.
15. Substantive versus administrative
requirements. CERCLA section 121(d)
requires that remedial actions shall
require a level or standard of control for
hazardous substances, pollutants, or
contaminants which attains ARARs.
Levels or standards of control are basic
performance objectives for the remedial
ac'.ior. (e.g., acceptable exposure levels
after the remedial action is completed).
These basic performance objectives are
defined by substantive ARARs.
Examples of substantive ARARs include
acceptable concentrations for specific
chemicals under the Safe Drinking
Water Act which define cleanup levels
for ground water that is or may be used
for drinking water, technology-based
requirements under RCRA for the
management of hazardous wastes which
define, for example, the physical
characteristics of a new landfill if waste
is to be closed in place, and restrictions
on activities in certain locations which
define, for example, the conduct of
excavation in order to minimize
potential harm to wetlands.
Requirements which do not in and of
themselves define a level or standard of
control are considered administrative.
Administrative requirements include the
approval of, or consultation with,
administrative bodies, issuance of
permits, documentation, and, generally,
reporting and recordkeeping. Th«
Superfund program imposes its own
reporting and recordkeeping
requirements to ensure that substantive
levels or standards of control are being
met Compliance with similar
requirements of other environmental
statutes would be redundant and unduly
burdensome.
This interpretation is consistent with •
CERCLA section 121(e] which exempts
on-site -activities from obtaining permits.
The purpose of this exemption is to
allow CERCLA response actions to
proceed expeditiously without the
delays that could result while waiting
for other offices or agencies to issue a
permit The substantive requirements
that would be imposed by a permit still
must be stated in Superfund documents,
but the redundancy of stating such
standards in a permit issued by another
office or agency is avoided.
In most cases, the classification of a
particular requirement as substantive or
administrative will be clear, but some
requirements may fall into a gray area
between the provisions related primarily
to program administration and those
concerned primarily with environmental
and human health goals. Several factors
may be considered when it is not readily
apparent whether a requirement is
substantive or administrative; for
example, the basic purpose of the
requirement any adverse effect on the
ability of the action to protect human
health and the environment if the
requirement were not met, the existence
of other requirements (e.g., CERCLA
procedures) at the site that would
provide functionally equivalent
compliance, and classification of similar
or identical requirements as substantive
or administrative in other situations.
The determination of whether a
requirement is substantive or
administrative need not bs documented.
16. Potential ARARs of the Resource
Conservation and Recovery Act
(RCRA). CERCLA compliance with the
regulations promulgated pursuant to
RCRA is a special concern within the
broader context of CERCLA compliance
with other environmental and public
heahh laws. Because the RCRA Subtitle
C regulations address the ongoing
treatment storage, and disposal of
hazardous waste, and because CERCLA
response actions often involve
treatment storage, and disposal of
hazardous waste, many RCRA
requirements will be applicable or
relevant and appropriate to CERCLA
response actions. The current RCRA
Subtitle C regulations are codified at 40
CFR Subchapter I.
The purpose of this discussion is to
provide a general overview of CERCLA
compliance with the potential ARARs of
RCRA. including the requirements of the
Hazardous and Solid Waste
Amendments of 1984 (HSWA). Although
the determination of which requirements
are applicable or relevant and
appropriate is always made on a site-
by-site basis, it is possible to make some
general statements about compliance
with RCRA.
L The potential ARARs of RCRA
Subtitle C. RCRA Subtitle C is the
authority for regulations which establish
standards for hazardous waste
management Pursuant to RCRA Subtitle
C, EPA has promulgated requirements
and standards for generators and
transporters of hazardous waste and for
owners and operators of hazardous
waste treatment storage, and disposal
facilities. These regulations contain
numerous potential ARARs for CERCLA
remedial actions, each requirement
having its own unique set of
jurisdictional prerequisites.
In general, RCRA Subtitle C
requirements for the treatment storage,
or disposal of hazardous waste will be
applicable if a combination of the
following conditions is met
a. The waste is a listed or
characteristic waste under RCRA; and
b. Either (1) The waste was treated,
stored, or disposed after the effective
date of the RCRA requirements under
consideration; or (2) The activity at the
CERCLA site constitutes treatment
storage, or disposal as defined by
RCRA.
Listed hazardous wastes under RCRA
are found in 40 CFR Part 261, Subpart D.
Some RCRA requirements apply to
hazardous wastes as defined in RCRA
section 1004(5). Characteristic
hazardous wastes under RCRA are
described in 40 CFR Part 261, Subpart C.
Testing methods and protocols for
characteristic determinations are
contained in Test Methods for
Evaluating Solid Waste, 3rd edition,
Volume 1C, Laboratory Manual (SW-
846).
There are two scenarios under which
RCRA requirements may be applicable
to CERCLA sites. First if the lead
agency determines that RCRA listed or
characteristic hazardous waste is
present and the waste was treated,
stored, or disposed at the site after the
effective date of the requirements under
consideration, then the pertinent RCRA
requirements will be applicable to the
waste activity. Generally, traditional
RCRA regulated facilities that have
been listed on the NPL may fall into this
category, even if die proposed CERCLA
action would not involve treatment
storage, or disposal. For example, if a
RCRA landfill or a hazardous waste
incinerator operated at the site after the
effective date of the RCRA closure
requirements, then the lead agency
-------
51444 Federal Register / Vol. 53. No. 245 / Wednesday, December 21, 1988 / Proposed Rules
would need to comply with the
applicable closure requirements for
those units in completing the remedial
action. Second, if the lead agency
determines that RCRA listed or
characteristic hazardous waste is
present at the site (even if the waste
was disposed before the effective date
of the requirement) and the proposed
CERCLA action involves treatment
storage, or disposal as defined under
RCRA, then RCRA requirements related
to those actions would be applicable.
These two scenarios are contingent
upon determinations that RCRA Subtitle
C hazardous waste is present and on the
identification of the period of waste
management. To determine whether a
waste is a listed waste under RCRA. it is
often necessary to know the source.
However, at many CERCLA sites no
information exists on the source of the
wastes nor are references available
citing the date of disposal. The lead
agency should use available site
information, manifests, storage records,
and vouchers in an effort to ascertain
the source of these contaminants. When
this documentation is not available, the
lead agency may assume that the wastes
are not listed RCRA hazardous wastes,
unless further analysis or information
becomes available which allows the
lead agency to determine that the
wastes are listed RCRA hazardous
wastes. If the lead agency assumes the
wastes are not listed RCRA hazardous
wastes and it is determined that the
wastes are not characteristic wastes
under RCRA (see discussion below,
17.i.) RCRA requirements would not be
applicable to CERCLA actions, but may
be relevant and appropriate if the
CERCLA action involves treatment,
storage or disposal and/or if the wastes
are similar or identical to RCRA
hazardous waste.
Under certain circumstances, although
no historical information exists about
the waste and when-it was treated,
stored, or disposed, it may be possible
to identify the wastes as RCRA
characteristic wastes. With respect to
hazardous characteristics, (ignitability.
corrosiviry, reactivity, or EP toxicity), it
is the responsibility of the generator (in
this case, the lead agency or PRP
conducting the action) to determine if
the wastes exhibit any of these
characteristics (defined in 40 CFR 261.21
through 24). The lead agency must use
best professional judgment to determine,
on a site-specific basis, if testing for
hazardous characteristics is necessary.
Testing is required unless it can be
determined, by "applying knowledge of
the hazard characteristic in light of the
materials or process used," that the
waste does not have hazardous
characteristics (40 CFR 262.11(c)).
In determining whether to test for the
toxicity characteristic using the
Extraction Procedure (EP) Toxicity Test,
it may be possible to assume that
certain low concentrations of waste are
not toxic. For example, if the total waste
concentration is 20 times or less the EP
Toxicity concentration, the waste
cannot be characteristic hazardous
waste. In such a case RCRA
requirements would not be applicable
and would not likely be relevant or
appropriate unless the waste also
contained other RCRA hazardous
wastes and the CERCLA action involved
treatment, storage, or disposal.
If the wastes exhibit hazardous
characteristics, RCRA requirements are
potentially applicable if the wastes also
were either treated, stored, or disposed
after the effective date of the applicable
RCRA requirement or if the CERCLA
actions will involve treatment storage,
or disposal.
ii. Actions constituting treatment,
storage, or disposal. Many CERCLA
actions occur in areas of contamination
that contain waste treated, disposed of,
or stored prior to November 19,1980. If
left untouched, wastes in such areas are
not currently regulated under Subtitle C
of RCRA. (Solid waste management
units at RCRA facilities are regulated by
the 3004(u) corrective action
requirements.) However, certain
physical movement alteration, or
disturbance of RCRA hazardous waste
associated with a remedial action may
meet the RCRA definition of treatment
storage, or disposal. For instance,
treatment has occurred when the
CERCLA remedial action uses "any
method, technique, or process, including
neutralization, designed to change the
physical, chemical, or biological
character or composition of any
hazardous waste so as to neutralize
such waste, or so as to recover energy or
material resources from the waste, or so
as to render such waste non-hazardous,
or less hazardous; safer to transport
store, dispose of; or amenable for
recovery, amenable for storage, or
reduced hi volume." 40 CFR 260.10.
Similarly, storage occurs when a
CERCLA remedial action involves the
"holding of hazardous waste for a
temporary period, at the end of which
the hazardous waste is treated, disposed
of, or stored elsewhere." 40 CFR 280.10.
Land disposal occurs when RCRA
hazardous waste is placed into a land
disposal unit including a "landfill,
surface impoundment waste pile,
injection well, land treatment facility,
salt dome formation, salt bed formation.
or underground mine or cave." RCRA
section 3004(k).
Movement of hazardous waste
entirely within a unit does not constitute
"land disposal" under Subtitle C of
RCRA. However, movement of
hazardous waste into a unit (i.e., across
the boundary of a unit) does constitute
"land disposal."
In many cases CERCLA sites contain
areas of contamination (with differing
levels of concentration, including hot
spots, of hazardous substances,
pollutants, or contaminants) that may be
characterized as a unit usually a
landfill, under RCRA. In such cases
where RCRA hazardous waste is moved
into the area of contamination, RCRA
disposal requirements are applicable to
the disturbed waste and certain land
disposal requirements (such as for
closure) may be applicable to the area
where the waste is received. '
Therefore, the following activities
constitute land disposal under RCRA
Subtitle C where the waste involved is
RCRA hazardous waste:
a. Wastes from different units are
consolidated into one unit;
b. Waste is removed and treated
outside a unit and redeposited into the
same or another unit; or
c. Waste is picked up from the unit
and treated within the area of
contamination in an incinerator, surface
impoundment or tank and then
redeposited into the unit (does not
include in-situ treatment).
In contrast an example of an activity
that does not constitute "land disposal"
is the mere consolidation of RCRA
hazardous wastes within a unit.
Similarly, the covering and sealing off of
hazardous waste, called "capping with
waste in place," is also not considered
"land disposal" and RCRA Subtitle C
requirements would not be applicable. If
some of the waste at a site is moved into
another unit but other waste is left
behind in the original unit (the unit in
which such waste was found), "land
disposal" applies only with regard to the
waste that is moved into another unit
Under these examples, however, certain
RCRA land disposal requirements might
nevertheless be relevant and
appropriate to such waste. (See ARARs
preamble sections below, 16.iii. and 17.)
iii. Hypothetical examples of
compliance with RCRA: land disposal
restrictions. Land disposal restrictions
under RCRA sections 3004 (d) through
(k) are triggered whenever there is
placement of RCRA hazardous wastes
subject to land disposal restrictions
("banned waste") into a land-based unu.
Such land disposal does not occur when
-------
Federal Register / Vol. 53, No. 245 / Wednesday, December 21. 1988 / Proposed Rules 51445
hazardous waste is merely moved
around within a unit.
Certain activities, e.g., placement,
involving specific wastes may be subject
to the special restrictions on land
disposal of hazardous wastes.
(Placement into a unit is defined
identically to land disposal, see above.)
The land disposal restrictions (LDR)
regulations establish treatment
standards to be achieved based on the
best demonstrated available treatment
technology (BOAT) before specific
wastes may be land disposed. For
example, land disposal restrictions
require that a remedial action that
involves the excavation and movement
of banned waste into a unit (i.e.,
placement) must meet BOAT levels
before the waste is placed into the unit
Similarly, the land disposal restrictions
also apply where the remedial action
involves excavation of banned waste
from its original unit, treatment of that
waste at another unit, and placement of
that waste back into the original unit or
another unit. However, land disposal
restrictions are not applicable where
banned waste is moved, graded,
stabilized, or treated in-situ, entirely
within the original unit, because
placement has not occurred.
Furthermore, the temporary staging of
waste within the unit prior to further
remedial action is not placement
(however, storage restrictions may
apply)- Land disposal restrictions are
not applicable but may be relevant and
appropriate where the remedial action
involves placement of CERCLA waste
similar in composition to RCRA banned
waste. (See ARARs preamble section
below, "17. Hypothetical Examples of
Relevant and Appropriate
Requirements.")
iv. Hypothetical examples of
compliance with RCRA: design and
operatinq requirements. The RCRA 40
CFR Part 264 regulations require certain
design and operating standards
(minimum technology requirements) for
the construction of new land disposal
units, and for the construction of
replacements for, expansions of, or
lateral extensions to existing land
disposal facilities. If, for instance, the
remedial action involves the placement
of RCRA hazardous waste into a newly
built or expanded landfill, then the 40
CFR Part 264 design and operating
standards for landfills will be applicable
to the remedial action, unless an
exemption is justified under the
provisions of the design and operating
standards. Double liners and leacbate
collection and return systems will thus
be required as a part of construction and
operation.
v. Hypothetical examples of
compliance with RCRA: corrective
action requirements. EPA'i ground-
water protection regulations, 40 CFR
Part 264, Subpart F, include corrective
action requirements. EPA is currently
developing regulations for corrective
action requirements imposed by RCRA
sections 3004 (u) and (v) (added by
HSWA).
The Subpart F corrective action
provisions require cleanup of ground
water for each hazardous constituent to
either the background level a SDWA
m«yimiim contaminant level (MCL), or
an alternate concentration limit (ACL)
set by the Regional Administrator. The
RCRA ground water protection
standards (40 CFR Part 264 Subpart F)
do not contain all of the current SDWA
MCLa. Where no MCL exists under
RCRA, the ground-water protection
standard will be set at background or at
an ACL if the proper ACL
demonstrations can be made to the
satisfaction of the Regional
Administrator.
The Subpart F corrective action
standards for regulated units are
applicable where the release being
addressed is from certain specified land
disposal units to the environment and
the unit received RCRA hazardous
waste after July 26,19S2 (the publication
date of Subpart F).
The RCRA corrective action
requirements added by HSWA regulate
releases of RCRA hazardous
constituents to the environment from
solid waste management units at RCRA
facilities, regardless of the date on
which the hazardous or solid waste was
received by the unit EPA is currently
developing more detailed regulations to
implement these HSWA requirements
that will establish procedures and
standards for corrective action. EPA
expects that the existing and new
regulations, when promulgated, will
generally be applicable to Superfund
actions whenever a remedial action
involves treatment storage, or disposal
of RCRA hazardous waste. These
regulations will be particularly
significant for CERCLA because they
wUl reflect standards EPA has found
specifically appropriate to remedial
actions.
EPA anticipates that for the most
part, only the requirements in the
corrective action regulation that
establish standards for cleanup and
hazardous waste management will be
applicable to CERCLA actions.
Some of the remedy selection
standards may be equivalent to or
subsumed by the standards for remedies
established in the NCP. For these
standards, meeting the NCP standards
would automatically •osure that the
applicable RCRA requirements are met
A clear example of this is the
protectiveness standard, since both
RCRA corrective action rules and the
NCP require that remedies must be
protective of human health and the
environment Other standards may need
to be addressed on a site-specific basis.
A more specific determination of how
the corrective actions standards must be
addressed will be made when the RCRA
regulations are promulgated.
The corrective action regulations are
likely to establish a corrective action
process. These parts of the rule will
establish procedures, criteria, and
definitions to implement corrective
action. For example, the rule is likely to
establish when investigations and
detailed study of alternatives are
required and how those assessments
will be conducted. These requirements
will not be applicable because they are
the equivalent of administrative
requirements in that they prescribe
methods and procedures to implement
the corrective action program.
EPA has, through the NCP.
established procedures that it believes
will achieve the same result as the
RCRA corrective action process. For
example, the use of action levels to
trigger the full corrective action process
parallels CERCLA's Hazard Ranking
System, which brings sites under the
remedial process. Another example is
RCRA's definition of "facility," which
differs from the statutory definition
provided in CERCLA. Attempting to
apply RCRA's distinct but essentially
equivalent procedures and definitions
would cause significant confusion and
provide little environmental gam under
the Superfund program.
vi. Hypothetical examples of
compliance with RCRA: closure
requirements. Although 40 CFR Part 264
includes potentially applicable or
relevant and appropriate requirements
addressing, closure and post-closure care
for the various types of units regulated
in the several subparts of Part 264 (e.g.,
Subparts G, K, and N), these various
subparts contain only two basic closure
options that can be potentially
applicable or relevant and appropriate
to the completion of operable units
during CERCLA response actions. The
two closure options are best exemplified
by the regulations for closure of surface
impoundments. For instance, owners
and operators desiring to decommission
(i.e., close] an operating surface
impoundment have two options. The
first option, "closure by removal" (or
"clean closure"), requires that all waste
-------
51446 Federal Register / Vol. S3. No. 245 / Wednesday. December 21. 1968 / Proposed Rules
residues and contaminated liners and
subsoil* be removed or decontaminated.
A recent amendment to the interim
status regulations for closure and post-
closure care for hazardous waste
surface impoundments, 52 FR 8704,
March 19,1087, further clarifies that this
closure option involves the removal of
enough contaminated soil such that
contamination is reduced to
concentration levels that attain
promulgated standards and/or EPA's
health-based advisory levels in the
actual area of contamination (i.e., this
does not allow for environmental fate
and transport modeling to determine
exposure levels outside the area of
contamination). The level of cleanup
required has been interpreted to be
"drinkable leachate" and "edible soils."
No post-closure requirements exist for
an owner /opera tor who has chosen the
closure option because EPA has adopted
the strict clean standards. The strict
standards ensure that the public and the
environment will be safe from all
exposure pathways (i.e., dermal,
inhalation, and direct soil and water
ingestion) after the owner/operator of a
RCRA facility has left the RCRA
regulatory system (the dean closure
regulations allow an owner/operator to
leave the RCRA regulatory system after
verification of the attainment of dean
closure le\ els for 180 days).
The second option, "dosure with
waste in place" or "landfill dosurc,"
where contaminated materials remain
after closure, requires final cover over
the unit and post-closure care, such as
maintenance of the final cover, ground-
v/ater monitoring, and corrective action
if the ground-water protection standards
are violated. Thus, a significant
difference between dean dosure and
landfill closure is that after landfill
closure the unit must be maintained and
monitored, corrective action taken if
needed, a notice provided in the deed
end plat that the site was used for
hazardous waste, and permission must
be obtained to build over the site. Clean
closure does not indude such additional
requirements because hazardous
constituents have been removed to
sufficiently low levels that no further
action is necessary to be protective.
Thus, the determination of whether
dean dosure or landfill dosure
requirements are potential ARARs
depends upon the contemplated
remedial activities, Le., whether the
activity is treatment, storage, or disposal
of hazardous waste and whether all
contamination will be removed from
that unit or whether hazardous wastes
will remain at the dosed unit. (See also
ARARs preamble section below, "17.
Hypothetical examples of relevant and
appropriate requirements.")
Even where not applicable, portions of
the closure requirements may be
relevant and appropriate depending
upon the site. If portions of the dosure
requirements are found relevant and
appropriate, the lead agency may
combine relevant and appropriate
requirements from clean and landfill
dosure options that are suitable for a
particular site. Rather than having only
two options for addressing
contaminated soil at a site (Le., either
excavate basically all of the waste and
contaminated soil to dean dosure
levels, or cap), the lead agency may
combine relevant and appropriate
requirements to form a hybrid doaure
option. (EPA is considering a hybrid
closure regulation for the RCRA
program; however, the discussion below
refers to the use of hybrid dosure in the
Superfund program.)
The Superfund program has been
using several different types of hybrid
dosure (where RCRA closure is not
applicable) that give the decisionmaker
additional choices for the long-term
management of hazardous substances
as well as treated residuals. Alternate
clean closure and alternate land
disposal dosure are the two hybrid
dosures most frequently used. The
alternate clean closure approach is
similar to dean closure in that
engineering controls are not required
However, limited fate and transport
modeling and site information may be
used to establish deanup levels for
contaminated soils and waste materials
remaining at the site. For example, the
ground-water route of exposure would
be protected by determining a level in
the soils that would be consistent with
the levels established for ground water.
Typically, monitoring will be necessary
after the completion of the remedial
measure to verify that the levels
established at the site are protective of
ground water and other routes of
exposure. After the verification period.
no monitoring at the site would be
required. A deed notice may be
desirable in some cases.
The alternate land disposal closure Is
the second type of hybrid dosure that is
used by the Superfund program. This
type of dosure is identical to RCRA
landfill disposal dosure except that the
cover requirements are relaxed because
die wastes being contained do not pose
a threat to ground water. Direct contact
and surface water threats, as well as
other threats, can be adequately
addressed with a soil cover. This type of
closure is usually appropriate for wastes
at low concentrations but still above
"walk-away" levels. EPA has found this
type of dosure to be useful hi
addressing wide areas of contaminated
soils in a relatively inexpensive but very
reliable manner.
If clean dosure or landfill dosure
requirements are applicable, alternate
dosure may be implemented only if an
ARAR waiver can be invoked.
17. Hypothetical examples of relevant
and appropriate requirements. The
criteria to be used in determining
whether a requirement is relevant end
appropriate to a CERCLA remedial
action are listed in { 300.400(g)(2). The
discussion below illustrates the use of
the criteria by providing hypothetical.
but typical situations where
requirements from RCRA and other laws
may be both relevant and appropriate,
i.e., the circumstances addressed in the
requirement are pertinent to those of the
CERCLA action or release and the
requirement is well-suited to the
circumstances at the site.
L CERCLA waste similar to RCRA
hazardous waste. The source or prior
use of many wastes at CERCLA sites
cannot be positively identified. Yet the
CERCLA waste may be similar in
composition to a listed RCRA waste
derived from a known source or use. If
such a CERCLA waste would not
otherwise-exhibit the characteristics
that would make it a RCRA hazardous
waste under 40 CFR Part 261 Subpart C,
the RCRA regulations for hazardous
waste would not be applicable to
management of the CERCLA waste.
However, certain RCRA regulations,
such as the design and operating
requirements, may be relevant and
appropriate to management of such
CERCLA waste when warranted by the
circumstances of the release or other
site-specific factors (see ARARs
preamble section above, "16j. The
potential ARARs of RCRA Subtitle C").
If, for example, CERCLA waste were -
to be disposed in a new land disposal
unit, the minimum technology
requirements in the RCRA design and
operating requirements for land disposal
facilities (set forth at 40 CFR Part 284.
Subparts K. L. M. and N) would be
relevant and could be appropriate,
depending on the site-specific
circumstances. The action or facility
regulated by the requirement—
construction of a new land disposal
unit—is identical to the proposed
remedial action, and the objective of
creating secure containment facilities
where land disposal is necessary is the
same for both RCRA and CERCLA. If
the CERCLA waste presents hazards
that warrant secure disposal, the
-------
Federal Register / Vol. 53. No. 245 / Wednesday. December 21, 1988 / Proposed Rules 51447
minimum technology requirements may
be appropriate for use at the site.
ii. CERCLA situations similar to
regulated situation. Even where the
substance found at a CERCLA site is
legally identical to the substance
addressed in a regulation, the situation
at a CERCLA site may not technically
match the situation addressed by the
regulation. Nevertheless, if .the two
situations are sufficiently similar, such
that the requirement is well-suited to the
CERCLA situation, the regulation may
still be both relevant and appropriate to
the CERCLA site. Examples of such
potentially relevant and appropriate
requirements are given below from
RCRA and other laws.
For example, if RCRA hazardous
waste disposed of before the effective
date is located on a CERCLA site in a
unit of size and character similar to
RCRA-type units, and the remedial
action is designed essentially to leave
the waste in place, a portion of one or
more of the closure requirements may be
relevant and appropriate. Depending on
site circumstances, such as the extent
and mobility of contamination and
hydrogeologic characteristics, either
disposal closure or "hybrid" closure (i.e..
portions of the existing closure
requirements) may be relevant and
appropriate. The determination for
either would be based on an evaluation
of similarity between these additional
pertinent factors: the objective of the
RCRA requirement and the CERCLA
action, and the action and facility under
consideration at the CERCLA site and
those regulated by the RCRA closure
requirement for disposal units. If there is
sufficient similarity between these
factors so that the requirement suits the
CERCLA site circumstances, the
requirement is relevant and appropriate.
Taking landfill closure standards for
the sake of simplicity, the objective of
the closure requirements as stated
above matches that of the CERCLA
action: waste left at a site must be
secured to prevent further releases or
direct contact. The substances at the
site in this example are RCRA
hazardous wastes. The remaining
pertinent criteria are whether the action
and the facility contemplated at the
CERCLA site are sufficiently similar to
those regulated by the RCRA landfill
closure requirements. Since hazardous
waste above levels that allow for
unrestricted use and unlimited exposure
is being left at the site in a unit which,
though not regulated under the landfill
closure standards of RCRA, is similar in
size and character to such a unit, the
substantive closure requirements
pertinent to the specific kind of unit on
the site (i.e., landfill) as contained in 40
CFR Part 264. Subpart N would directly
suit the CERCLA action. Thus, it is
relevant and appropriate to attain the
specified cover system and post-closure
care.
If. however, the waste is widely
dispersed and not contained in a RCRA-
type unit, use of RCRA closure may not
be appropriate. For instance, RCRA
Subtitle C covers may not be
appropriate under certain circumstances
for large municipal landfills or large
mining waste sites, if the waste is
generally of low toxicity and the
contamination is dispersed over a large
area that bears little resemblance to the
discrete units regulated under RCRA
Subtitle C. (See draft CERCLA
Compliance with Other Laws Manual.
Chapter 2, OSWER Directive No. 9234.1-
01, for more discussion on this issue.)
The administrative requirements in the
closure regulations are not relevant and
appropriate for on-site actions under
any circumstances. (See ARARs
preamble section above, "15.
Substantive versus administrative
requirements.")
Even if they are not applicable,
portions of RCRA requirements for
tanks (40 CFR Part 264, Subpart J) may
be relevant and appropriate for sites
where temporary storage in tanks is
required. For example, the requirement
that tanks have sufficient minimum shell
thickness and pressure controls to
prevent collapse or rupture may be
relevant and appropriate, since the
purpose of the requirement is to ensure
that the tank does not create additional
environmental problems due to its own
failure. RCRA regulations also require
that tanks have an inner lining or
coating, or an alternative means of
protection such as cathodic protection
or corrosion inhibitors, in order to
ensure that the tank is safe throughout
its effective life. This requirement.
although relevant, may not be
appropriate in many situations. For
example, if the tanks were to be used
only for relatively short periods, the full
RCRA Subpart J standards, which were
designed for long-term storage, may not
be appropriate.
Another example of a CERCLA
situation which is similar to a regulated
situation concerns the cleanup of certain
kinds of asbestos waste. Emissions of
asbestos fibers are controlled by a
National Emission Standard for
Hazardous Air Pollutants (NESHAP)
under the Clean Air Act. The NESHAP
in Subpart M of 40 CFR Part 61 includes
requirements for inactive waste disposal
sites for asbestos mills and
manufacturing and fabricating
operations (40 CFR 61.153). for active
waste disposal sites (40 CFR 61.156),
and for waste disposal for demolition
and renovation operations (40 CFR
61.152), but no requirements for inactive
waste disposal sites for demolition and
renovation operations. Therefore, the
NESHAP will not be applicable to
cleanup of an inactive waste disposal
site unless it was owned or operated by
an asbestos mill manufacturer, or
fabricator, or contains waste bom such
sources. However, the NESHAP
specified in 40 CFR Part 61, Subpart M
may be relevant and appropriate to the
control of emissions and access under
CERCLA at an inactive waste disposal
site for demolition and renovation
operations because the situations may
be sufficiently similar.
The finding of relevance and
appropriateness is based on several
factors that are sufficiently similar in the
NESHAP and the CERCLA situation and
the suitability of the NESHAP to the
specific site circumstances. Both the
requirement and the remedial action are
intended to protect human health from
exposure to a hazardous substance; the
specific remedial action, like the specific
requirements hi the NESHAP, seeks to
control harmful emissions from or
contact with asbestos materials at a
disposal site through proper
management and mitigation measures.
The media of concern are the same for
both air contamination and direct
contact with waste. The activity and
facility involve in both cases the
management or disposal of asbestos
waste at a land disposal site. The only
difference between the CERCLA
situation and the NESHAP concerns the
regulated substance and entity, for the
NESHAP does not cover asbestos from
demolition and renovation operations at
inactive sites. However, the problems
from such asbestos may be very similar
to those encountered at for example,
inactive sites for mills and
manufacturing: fugitive emissions of
asbestos particles may need to be
eliminated and public access to the site
controlled. Hence, it may be relevant
and appropriate at the CERCLA site to
comply with such NESHAP
requirements as elimination of visible
emissions (or capping of waste) and
installation of warning signs and
fencing.
G. Examples of Potential Federal and
State ARARs and TBCs
Potential ARARs and TBCs include.
but are not limited to. the following:
1. Federal requirements which may be
potential applicable or relevant and
appropriate requirements.
-------
51448
Federal Register / Vol S3. No. 245 / Wednesday. December 21, 1988 / Proposed Roles
I EPA's Office of Solid Waste
administers, inter alia, the Resource
Conservation and .Recovery Act of 1978,
as amended. (42 U.S.C.-6901). Potentially
Applicable or .relevant and appropriate
requirements pursuant to that Act are:
a. Open Dump Criteria Pursuant to
RCRA Subtitle O criteria ior
classification of «olid waste disposal
facilities .(40CFR Part 257). Note: Only
relevant to uanhazardous wastes.
b. RCRA Subtitle C requirements
governing standards for owners and
opera tors of hazardous waste treatment,
storage, and disposal facilities (40 CFR
Part 264, for permitted facilities, and 40
CFR Part 265, for interim status
facilities):
(1) Ground-Water Protection and
Monitoring (40 CFR 264.90-261.101).
(2) Closure and PcwtClo«ure{40 CFR
2G4.110-264.120j.
(3) Containers {40 CFR 264.170-
2C4.178J.
(4J Tanks (40 CFR 264.190-264 -200J.
(5) Surface Impoundments ,(40 CFR
2G4.220-2S4.249J.
16) "Waste Piles (40 -CER 264JJ50-
204.269).
17) Land Treatment (40 CFR 264.270-
204.299J.
{8) Landfills (40 CFR 264.300-264339).
(9) Incinerators (40 CFR 264.340-
2C4.999).
(JO) Land Disposal Res frictions (40
CFR 268.1-268.50J.
(11) Dioxin-containlng wastes ISO FR
1S78).
(12) Standards of performance for
storage vessels for petroleum liquids (40
CFR Part 60, Subparts K and K(a)).
(13) Codification xule for 1984 RCRA
amendments (50 FR 28702, July 15,1985;
53 FR 45783, December 1,1987).
ii. EPA's Office of Water administers
several potentially applicable or
relevant and appropriate statutes and
regulations issued thereunder:
a. Section 14.2 of the Public Health
Service Act es amended by the Safe
Drinking Water Act, as amended, (42
U.S.C. 300(0)-
(1) Maximum Contaminant Levels (for
all sources of drinking water exposure)
(40 CFR 141.11-H1.16).
[2] Maximum Contaminant Level
Goals (40 CFR 141.50-141.51.50 FR
46930).
(3) Underground Injection Control
Regulations (-10 CFR Ports 1«4, 145,146,
147).
b. Clean Water Act, as amended. (33
U.S.C. 1251).
(1) Requirements established pursuant
to sections 301,302.303 (including State
water quality standards), 304, 300, 307
(including Federal pretreatment
requirements for discharge into «
publicly owned treatment works], 308.
402,403 and 404 of the Clean Water Act
(33 CFR Parts 320-329, 40 CFR Parts 122,
123,125.131, 230, 231. 233. 400-469).
(2) Available Federal Water Quality
Criteria documents are listed at 45 FR
79318, November 28,1980: 49 FR 5831,
February 15,3964; 50 FR 30784, July 29.
1985; 51 ER-8012. March 7.1986; 51 FR
22976. fnne.28, I960; 51 FR 43665.
December 3.1986; 52 FR 6213, March 2,
1987.
(3) -Clean Water Act flection 4O4(b)(l)
Guidelines for Specification of Disposal
Sites for Dredged or Fill Material .(40
CFR Part 2SOJ.
(4) Procedures for Denial or
Restriction of Disposal Sites for Dredged
Material (Clean Water Act section
404(c) Procedures, 33 CFR Parts 320-829.
40CERPart231J,
c. Marine -Protection, •Research, and
Sanctuaries Act (33 U.S.C. 1401).
(1) Incineration at sea requirements
(40 CFR Parts 220-225. 227.228. See also
40 CFR 125.120-425.124).
iii. EPA's Office-of Pesticides and
Toxic Substances administers the Toxic
Substances Control Act (15 U.S.C. 2601). -
Potentially applicable or relevant and
appropriate requirements pursuant to
that Act are:
PCB requirements generally: 40 CFR
Part 761; Manufacturing, Processing,
Distribution in Commerce, and Use of
PCBs and PCB Items (40 CFR 761.20-
761.30J; Markings of PCBs and PCB
Items (40 CFR 761.4O-761.45i Storage
and Disposal (40 CFR76UBO-7B1.7.9J;
Records and Reports (40 CFR 761.180-
761.185]. See also 40CFRlffi.l05. 750.
iv. EPA's Office of External Affairs
administers potentially applicable or
relevant and appropriate requirements
regarding requirements for floodplains
and wetlands (40 CFR Part 6, Appendix
A).
v. EPA's Office of Air and Radiation
administers several potentially
applicable or relevant and appropriate
statutes and regulations issued
thereunder
a. The Uranium Mill Tailings
Radiation Control Act of 1978 (42 U.S.C.
2022) and Health and Environmental
Protection Standards for Uranium and
Thorium Mill Tailings (40 CFR Part 192).
b. Clean Air Act (42 U.S.C. 7401).
(1) National Primary and Secondary
Ambient Air Quality Standards (40 CFR
Part SO).
(2) -Standards for Protection Against
Radiation (10 CFR Part 20). See also 10
CFR Parts 10,40.60. 61.72,900,981.
(3) National Emission Standard for
Hazardous Air Pollutants (40 CFR Part
61J. See also 40 CFR 427.110-427.116.
703.
(4) New source performance
standards (40 CFR Part 60).
vi. Other Federal requirements:
a. OSHA requirements for •workers
engaged in response activities are
codified under the Occupational Safety
and Health Act of 1970129 U.S.C.«51J.
The relevant regulatory requirements
are included under
(1) Occupational Safety and Health
Standard* (General Industry Standards)
(29 CFR Part 1910).
(2) The Safety and Health-Standards
for Federal Service Contracts (29 CFR
Part 1926).
(3) The Health and Safety Standards
for Employees Engaged in Hazardous
Waste Operations (29 CFR 1910.120).
b. National Historic Preservation Act
(18 U.S.C. 470). Compliance with NHPA
required pursuant to T CFR Part 650.
Protection of Archaeological Resources:
Uniform Regulations—Department of
Defense (32 CFR Part 229), Department
of the Interior (43 CFR Part 7).
c. D.O.T. Rules for the Transportation
of Hazardous Materials, 49 CFR Parts
107.171.172.
d. The following requirements are also
potentially ARAR for Fund-financed
actions:
(1) Endangered Species Act of 1973 (16
U.S.C. 1531). Generally. 50 CFR Parts 81.
225, 402.
(2) Wild and Scenic Rivers Act (16
U.S.C. 1271).
(3) Fish and Wildlife Coordination Act
(16 U.S.C. €61 note).
(4J Federal Insecticide, Fungicide, and
Roderrticide Act (7 U.S.C. 135J 40 CFR
Parties.
(5) WrHemess Act (16 U.S.C. 1131).
(6) Coastal Barriers Resources Act (16
U.S.C. 3501).
(7) Surface Mining Control and
Reclamation Act (SO U.S.C.T201).
(8) Coastal Zone Management Act of
1572 (16 U.S.C. 1451). Generally, 15 CFR
Part 930 and 15 CFR 923.45 for Ah- and
Water Pollution Control Requirements.
(9) Magnuson Fishery Conservation
and Management Act (16 U.S.C. 1801
et seq.).
(10) Marine Mammal Protection Act
(13 U.S.C. 1361etseq.J.
2. Examples of potential State ARARs.
1. State requirements for disposal and
transport of radioactive wastes.
ii. State approval of water supply
system additions or developments.
iii. State ground-water withdrawal
approvals.
iv. Requirements of authorized
(Subtitle C of RCRA] State hazardous
waste programs.
v. State Implementation Plans (SfPs)
and delegated programs under the Clean
Air Act
vi. Approved State NPDES program
under the Clean Water Act
-------
Federal Register / Vol. 53, No. 245 / Wednesday, December 21. 1988 / Proposed Rules 51449
vii. Approved State underground
injection control (UIC) programs undei
the Safe Drinking Water Act.
viii. Approved State wellhead
protection programs.
ix. State water quality standards.
x. State air toxics regulations.
3. Other Federal criteria, advisories.
and guidance, to be considered.
i. Federal Criteria, Advisories, and
Procedures.
a. Health Effects Assessments (HEAs)
and Proposed HEAs ("Health Effects
Assessment for (Specific Chemical)"),
ECAO. USEPA, 1985).
b. Reference Doses (RfDs). ("Verified
Reference Doses of USEPA." ECAO-
CIN-475. January 1966).
c. Carcinogen Potency Factors (CPFs),
(Table 11. "Health Assessment
Document for Tetrachloroethylene
(Perchloroethylene)." USEPA. OHEA/
600882/005F, July 1985).
d. Pesticide registrations and
registration data.
e. Pesticide and food additive
tolerances and action levels. Note:
Germane portions of tolerances and
action levels may be pertinent and
therefore are to be considered in certain
situations.
L PCB Spill Cleanup Policy (52 FR
10688, April 2,1987).
g. Waste load allocation procedures
(40 CFR Parts 125,130).
h. Federal sole source aquifer
requirements (52 FR 6873, March 5.
1987).
i. Public health basis for the decision -
to list pollutants as hazardous under
section 112 of the Clean Air Act
j. EPA's Ground-Water Protection
Strategy.
k. Guidance on Remedial Actions for
Contaminated Ground Water at
Superfund sites (Draft, October 1986)
establishes criteria for the use of
background concentrations and ACLs.
1. Superfund Public Health Evaluation
Manual.
m. TSCA health data.
n. TSCA chemical advisories.
o. ATSDR Toxicological Profiles.
p. Advisories issued by FWS and
NWFS under the Fish and Wildlife
Coordination Act
q. TSCA Compliance Program Policy
("TSCA Enforcement Guidance Manual
Policy Compendium," USEPA. OECM.
OPTS. March 1985).
r. Health Advisories. EPA Office of
Water.
s. EPA/DOT Guidance Manual on
Hazardous Waste Transportation.
ii. USEPA RCRA Guidance
Documents.
a. Alternate Concentration Limits
(ACL) Guidance (draft).
b. EPA's RCRA Design Guidelines
(1) Surface Impoundments—Liner
Systems. Final Cover, and Freeboard
Control.
(2) Waste Pile Design—Liner Systems.
(3) Land Treatment Units.
(4) Landfill Design—Liner Systems
and Final Cover.
c. Permitting Guidance Manuals.
(1) Permit Applicant's Guidance
Manual for Hazardous Waste Land
Treatment, Storage, and Disposal
Facilities.
(2) Permit Applicant's Guidance
Manual for the General Facility
Standards of 40 CFR Part 264.
(3) Permit Writer's Guidance Manual
for Hazardous Waste Land Treatment
Storage, and Disposal Facilities.
(4) Permit Writer's Guidance Manual
for the Location of Hazardous Waste
Land Storage and Disposal Facilities:
Phase I, Criteria for Location
Acceptability and Existing Regulations
for Evaluating Locations.
(5) Permit Writer's Guidance Manual
for Subpart F.
(6) Permit Applicant's Guidance
Manual for the General Facility
Standards.
(7) Waste Analysis Plan Guidance
Manual
(8) Permit Writer's Guidance Manual
for Hazardous Waste Tanks.
(9) Model Permit Application for
Existing Incinerators.
(10) Guidance Manual for Evaluating
Permit Applications for the Operation of
Hazardous Waste Incinerator Units.
(11) A Guide for Preparing RCRA
Permit Applications for Existing Storage
Facilities.
(12) Guidance Manual on Closure and
Post-Closure Interim Status Standards.
d. Technical Resource Documents
(TRDs).
(1) RCRA Ground-Water Monitoring
Technical Enforcement Guidance
Document
(2) Evaluating Cover Systems for Solid
and Hazardous Waste.
(3) Hydrologic Simulation of Solid
Waste Disposal Sites.
(4) Landfill and Surface Impoundment
Performance Evaluation.
(5) Lining of Water Impoundment and
Disposal Fatitities.
(6) Management of Hazardous Waste
Leachate.
(7) Guide to the Disposal of
Chemically Stabilized and Solidified
Waste.
(8) Closure of Hazardous Waste
Surface Impoundments.
(9) Hazardous Waste Land Treatment
(10) Soil Properties. Classification,
and Hydraulic Conductivity Testing.
e. Test Methods for Evaluating Solid
Waste.
(1) Solid Waste Leaching Procedure
Manual.
(2) Methods for the Prediction of
Leachate Plume Migration and Mixing.
(3) Hydrologic Evaluation of Landfill
Performance (HELP) Model Hydrologic
Simulation and Solid Waste Disposal
Sites.
(4) Procedures for Modeling Flow
Through Clay Liners to Determine
Required Liner Thickness.
(5) Test Methods for Evaluating Solid
Wastes.
(6) A Method for Determining the
Compatability of Hazardous Wastes.
(7) Guidance Manual on Hazardous
Waste Compatability.
iiL USEPA Office of Water Guidance
Documents.
a. Pretreahnent Guidance Documents.
(1) 304(g) Guidance Document on
Revised Pretreatment Guidelines (3
volumes).
b. Water Quality Guidance
Documents.
(1) Ecological Evaluation of Proposed
Discharge of Dredged Material into
Ocean Waters (1977).
(2) Technical Support Manual:
Waterbody Surveys and Assessments
for Conducting Use Attainability
Analyses (1983).
(3) Water-Related Environmental Fate
of 129 Priority Pollutants (1979).
(4) Water Quality Standards
Handbook (1983).
(5) Technical Support Document for
Water Quality-Based Toxics Control
(6) Developing Requirements for
Direct and Indirect Discharges of
CERCLA Wastewater (1987).
c. NPDES Guidance Documents.
(1) NPDES Best Management Practices
Guidance Manual (June 1981).
(2) Case studies on toxicity reduction
evaluation (May 1983). .
d. Ground Water/UIC Guidance
Documents.
(1) Designation of a USDW.
(2) Elements of Aquifer Identification.
(3) Definition of major facilities.
(4) Corrective action requirements.
(5) Requirements applicable to wells
injecting into, through, or above an
aquifer that has been exempted
pursuant to 40 CFR 146.104(b)(4).
(6) Guidance for UIC implementation
on Indian lands.
e. Clean Water Act Guidance
Documents.
f. Guidance for Applicants for State
Well Head Protection Program
Assistance Funds under the Safe
Drinking Water Act (Office of Ground-
Water Protection. June 1987).
iv. USEPA Manuals from the Office of
Research and Development.
-------
51450 Federal Register / Vol. 53, No. 245 / Wednesday, December 21. 1988 / Proposed Rules
a. EW 646 methods—laboratory
analytic methods.
b. Lab protocols developed pursuant
to Clean Water Act section 304(h).
v. Other.
a. Data Quality Objectives, Volumes I
and II.
b. Guidance for Conducting Remedial
Investigations and Feasibility Studies
Under CERCLA (Draft).
c. Guidance on Preparing Superfund
Decision Document: The Proposed Plan
and Record of Decision (Draft).
d. Standard Operating Safety Guides.
H. Community Relations
By adding section 117, "Public
Participation." to CERCLA, Congress
clearly indicated its intention that
affected communities be informed about
and involved in the decisions regarding
the Superfund program's response to
hazardous releases. Congress directed
EPA to ensure that affected communities
would be involved from the outset in
developing and selecting the actions
necessary at a site. EPA strongly
believes that community relations is an
integral part of the Superfund program
and encourages a coordinated effort
among Federal agencies and States as
well as among technical, enforcement,
and community relations staff to ensure
that the concerns of the public are
considered and addressed.
Today, EPA proposes to revise the
community relations requirements of the
NCP to reflect the public participation
provisions of CERCLA. The current NCP
explains in a single section (§ 300.67) the
requirements for community relations.
EPA proposes to intersperse community
relations requirements throughout the
NCP in conjunction with the actions to
which they apply: during removal
actions (§ 300.415) and remedial actions
(§§300.430 and 300.435), including
enforcement-related community
relations activities. The major
substantive changes in these
requirements, summarized below, are
either dictated by the 1986 amendments
to CERCLA or are the result of
procedures developed under the
community relations program over the
past seven years. Guidance for meeting
Superfund community relations
requirements is contained in
"Community Relations in Superfund: A
Handbook," EPA No. 9230.0-3A (March
1966).
1. Public comment period during
removal actions (§300.41S(n)). The
proposed rule provides for notice in a
local newspaper of general circulation to
announce a minimum 30-calendar day
comment period for Fund-financed and
enforcement sites where there is a
planning period of at least six months
from the determination, based on the
site evaluation, that a removal is
appropriate. This gives the public,
including PRPs, an opportunity to review
and comment on the document
describing the removal activities
proposed for the site, i.e.. the
Engineering Evaluation/Cost Analysis
(EE/CA) or its equivalent in non-time-
critical situations. The lead agency shall
prepare responses to significant
comments. The proposed rule also
provides for a comment period, where
appropriate, for time-critical removal
actions. (See Subpart I for
administrative record requirements.)
2. Other community relations
requirements during removal actions
(§300.415(n)J. EPA proposes to add a
requirement that three major community
relations activities be initiated for non-
rune-critical or time-critical removal
actions where on-site removal activities
will last longer than 120 calendar days.
First, EPA proposes that interviews with
State and local officials, residents,
public interest groups, or other
interested or affected parties, as
appropriate, be conducted within the
community. The purpose of the
interviews is to identify firsthand the
specific information needs and site-
specific methods for encouraging
dialogue with the community. Second.
EPA proposes that a formal community
relations plan (CRP) be developed from
the information obtained during the
community interviews. The CRP
specifies the community relations
activities the lead agency expects to
undertake during the response action.
Third, EPA proposes that at least one
information repository be established at
or near the facility. (See community
relations preamble section below, "4.
Information repository for removal and
remedial actions.")
In the current NCP. a CRP must be
developed if the response activities are
expected to exceed 45 days; neither
community interviews nor an
information repository are required. The
additional time allocation in the
proposed regulation (120 days) provides
more flexibility, allows for more
effective use of lead agency resources,
and also provides a more realistic time
period for assessing the community's
specific needs.
. In the case of removals lasting less
than 120 days, the lead agency is still
responsible for ensuring that a
spokesperson is designated, that
accurate and timely information is
provided to the public, and that public
concerns are considered, whenever
possible.
3. Community interviews and
Community Relations Plan during
removal and remedial actions
(§300.415(n) and{§300.430(c)).
Community interviews have been
required since 1983 as a matter of EPA
policy and were discussed in the
preamble to the proposed 1985 revisions
to the NCP in relation to remedial
actions. The requirement that
community interviews be conducted for
certain removals and all remedial
actions is consistent with existing
guidance for remedial actions and
reflects EPA's experience that such
interviews have considerable value in
identifying community-specific interests
that should be reflected in the CRP to
assure that community concerns are
considered in managing the response
action. Experience has also shown that
these interviews assist in gathering
information that is useful in conducting
the response action at the site, e.g., in
identifying potentially responsible
parties. However, EPA has deliberately
chosen not to specify in the proposed
NCP how the interviews should be
conducted or who should be
interviewed. -
The lead agency, in consultation with
the support agency, will decide the
number and type of interviews that are
appropriate to accomplish the objective
of developing an accurate picture of
community needs and concerns when
preparing the CRP. How many and what
kind of interviews to conduct generally
depends on whether the lead agency is
already aware of community concerns
through prior interaction with the
community and interested parties, e.g.,
through public participation related to
permitting a unit of a facility which later
requires CERCLA response action.
Interviews may range from formal
question and answer sessions
requesting the opinions of many citizens
about a variety of aspects of a site
history and community values to only a
few, informal discussions in person or
by telephone with selected, well-
informed individuals who clearly
represent the community. Only a few
selected interviews or informal
discussions may need to be conducted
to verify information and ask questions
on specific issues where the lead agency
already is largely aware of community
concerns through prior interaction with
the community and interested parties. In
these cases, interviews with a local
official, the facility owner/operator, or a
leader of the local interest group, as
appropriate, may be used to round out
information already available to the
lead agency.
4. Information repository for removal
and remedial actions (§§300.415(n) and
3O0.430(c)). Items made available for
-------
Federal Register / Vol S3, No. 245 / Wednesday. December 21. 1988 / Proposed Rules 5^451
public information are to be kept in an
information repository and shall be
available for public inspection and
copying at or near the facility at issue.
EPA proposes that at least one
information repository be established at
or near each site in order to fulfill this
requirement The purpose of the
information repository is to provide
members of the community easier
access to site-related documents.
Further, one copy of the administrative
record file for selection of response
action may be kept in one of the
information repositories, as specified in
Subpart I.
For non-time-critical or time-critical
removal actions where on-site removal
activities will last longer than 120 days,
at least one information repository will
be established at or near the location of
the action. For remedial actions, EPA is
proposing that the information
repository be established when the final
remedial investigation/feasibility study
workplan is available to the public. EPA
proposes that the lead agency shall
inform interested parties of the
establishment of the information
repository.
5. Public participation during
remedial actions (§ 300.430(f}). Sections
117 (a) and (d) of CERCLA require that
the proposed plan, which briefly
analyzes the lemedial action
alternatives studied in the feasibility
study (FS) and describes a preferred
remedial action alternative, be made
available to the public, including PRPs,
at or near the facility at issue. The
information repositories will be used to
meet this requirement The statute also
requires that a notice of availability and
s brief analysis of the proposed plan be
published in a major local newspaper of
general circulation. The notice of
availability and brief analysis published
in the newspaper shall include sufficient
infonr.ation to provide a reasonable
explanation of the proposed plan and
alternatives considered. EPA also
proposes to require that the FS be made
available to the public at the
information repositories.
The proposed regulation also requires
that the lead agency provide a
reasonable opportunity for submission
of written and oral comments and an
opportunity for a public meeting
regarding the Rl/FS, the proposed plan,
and any proposed waivers under section
121(d)(4) relating to cleanup standards.
EPA is proposing that this public
comment period shall be no less than 30
calendar days. This is consistent with
comment periods for NPL additions,
deletions, and consent decrees. This
proposal is an extension of the 21-
calendar-day public comment period in
the current NCP.
The proposed regulation further
requires that the lead agency keep a
transcript of the public meeting on the
proposed plan and the supporting
analysis and information held during the
public comment period pursuant to
section 117{a) and make the transcript
available to the public. Transcripts are
required for formal public meetings only.
Additional formal and/or informal
public meetings held pursuant to section
117(a) during the public comment period
where the lead agency is present and
there is a discussion of the FS. the
proposed plan, and proposed waivers to
cleanup standards should also be
documented in an appropriate form. Any
further substantive oral communications
regarding these issues which are
received by any other means such as
phone calls or meetings with individuals
or small groups during the public
comment period should also be
documented by the lead or support
agency. In all cases where EPA receives
documents or comments that are
relevant to selection of the response
action, the documents and a summary of
the comments should be prepared and
placed in the administrative record.
6. Responsiveness summaries after
public comment periods (§§ 300.415fn),
300.42S(d). 300.425(e), 3D0.430(f),
300.815(b), 300.820(b)). CERCLA requires
the lead agency to develop a response to
significant comments, criticisms, and
new data received in written or oral
form during the public comment period
on the proposed plan pursuant to section
117(a). In the proposed regulation, EPA
also requires public comment periods for
removal actions (see above, paragraph
1.), proposed additions and deletions to
the National Priorities List, issuance of a
revised proposed plan, and ROD
amendments.
The purpose of the requirement to
respond is to document how public
comments have been considered during
the decisionmaking process and provide
answers, if possible, to major questions.
A responsiveness summary can be used
to respond to comments. The
responsiveness summary should be a
concise summary of significant
comments received during the comment
period from the support agency and the
public, and the lead agency's response
to these comments. It should not be a
point-by-point recitation and rebuttal of
each comment Rather, extensive
comments should be summarized and
similar comments should be grouped
together for a single response.
7. Addressing significant changes
prior to the adoption of the final
remedial action plan (§ 300.430{f}). The
lead agency win need to identify and
address significant changes that may
occur from the time that the preferred
alternative was presented in the
proposed plan to the adoption of the
selected alternative in the Record of
Decision (ROD). If significant changes
do occur during this period, the lead
agency shall provide, as required by
section 117(b) of CERCLA. "a discussion
of any significant changes (and the
reasons for such changes)" in the ROD.
In addition to this statutory requirement
today's proposal specifies the limited
circumstances where additional public
comment would be necessary prior to
final adoption of the alternative in the
ROD.
The determination of whether a
significant change has occurred is a site-
specific determination which shall be
made by the lead agency. Typically.
significant changes that occur after the
public comment period will affect the
scope, performance, or cost of the final
alternative. Today's proposal focuses on
significant changes affecting these
aspects of the final remedial alternative.
In the event that a significant change
has been identified, the lead agency will
need to determine whether the public
could have reasonably anticipated the
significant change based on the
information presented in the RI/FS
report and the proposed plan. Where the
lead agency determines that the public
could have reasonably anticipated the
change, the lead agency need only
document the change in the ROD, as
proposed in J 300.430(f)(2)(A). Where
the lead agency determines that the
change could not have been reasonably
anticipated by the public, the lead
agency will reissue the proposed plan
and solicit further public comment in
accordance with § 300.430(f)(2)(B). A
responsiveness summary may also be
developed to document comments and
agency responses.
B. Notice of availability of the ROD
f§ 30a430[f}). This section provides that
a notice of the signed ROD shall be
published in a major local newspaper of
general circulation and that the ROD
will be made available to the public at
the information repositories before
commencement of any remedial action.
9. Changes to the ROD after its
adoption (§ 300.435(c)). This section
incorporates the requirements of section
117(c) of CERCLA that the lead agency
publish an explanation of the significant
differences when significant changes
occur after the ROD is signed and the
section 117(d) requirement that a notice
summarizing the significant changes be
published in a major local newspaper of
-------
51452 Federal Register / Vol. 53. No. 245 / Wednesday. December 21. 1988 / Proposed Rules
general circulation. In addition, this
section proposes to distinguish between
on explanation of significant
differences, which announces a
significant change in the selected
remedy, and a ROD amendment, which
fundamentally alters the remedy
selected in the ROD. The lead agency
will need to make this determination
whenever the remedial action under
section 104 or 120, enforcement action
under section 106, or settlement or
consent decree under section 108 or 122,
differs significantly from the selected
remedy in the ROD. The lead agency
will decide whether to issue an
explanation of significant differences or
to propose a ROD amendment, based on
site-specific information and the impact
the significant change has with respect
to scope, performance, or cost on the
remedy selected in the ROD. During this
decision process, the lead agency should
notify and consult with the support
agency, as appropriate.
The lead agency must identify when a
remedial action, settlement, or decree
differs significantly from the ROD. If the
identified remedial action, enforcement
action, consent decree, or settlement
does not fundamentally alter the remedy
selected in the ROD with respect to
scope, performance, or cost the lead
agency will issue an explanation of
significant differences to announce the
significant change. For example, the
lead agency may determine that the
attainment of a newly promulgated
ARAR is necessary, based on new
scientific evidence, because the existing
ARAR is no longer protective. Where
this new ARAR would affect a basic
feature of the remedy, such as timing or
cost, but not fundamentally alter the
remedy specified in the ROD, the lead
agency would need to issue an
explanation of significant differences
announcing the change.
If the action, decree,-or settlement
fundamentally alters the ROD in such a
manner that the proposed action, with
respect to scope, performance, or cost, is
no longer reflective of the selected
remedy in the ROD, the lead agency will
propose an amendment to the ROD. For
example, the lead agency may have
selected an innovative technology as the
•waste management approach in the
ROD. Studies conducted during remedial
design may subsequently Indicate that
the innovative technology will not
achieve the remediation levels specified
as protective of human health and the
environment in the ROD. The lead
agency, based on this information, may
determine that a more conventional
technology, such as thermal destruction,
should be used a1 the site. In this event.
the lead agency will propose to amend
the ROD.
Section 122(d)(l)(A) of CERCLA
provides that whenever EPA enters into
an agreement with any PRP to undertake
a remedial action, the agreement shall
be entered as a judicial consent decree.
Section 122(d)(2) requires that DO]
provide the public with an opportunity
to comment on the proposed consent
decree at least 30 days prior to its entry.
Where the proposed consent decree
fundamentally alters the ROD. EPA
contemplates that it will issue a
proposed ROD amendment concurrent
with the proposed consent decree, and
that the public comment period provided
pursuant to section 122(d){2) shall
satisfy the requirements for additional
public comment for a ROD amendment
When an explanation of significant
differences is issued, the lead agency
will consult with the support agency.
(unless a SMOA, cooperative
agreement or Superfund State contract
requires concurrence) prior to notifying
the public in a major local newspaper of
general circulation. This public notice
will summarize the explanation of
significant differences by identifying the
significant changes and the reasons for
the changes. The lead agency will also
place the explanation of significant
differences and information supporting
the decision in the information
repository and administrative record
file.
When the lead agency determines that
the ROD should be amended, the lead
agency will propose a ROD amendment
and make this document and supporting
information available for public
comment, following the requirements
specified in J 5 300.430(f] (1) and (2) of
today's proposed rule. In addition,
where the lead agency proposes to
amend a ROD that was signed prior to
the enactment of the 1986 amendments
to CERCLA, the proposed amendment
shall be subject to the requirements
specified in CERCLA section 121.
EPA believes that the appropriate
threshold for amending a ROD is when a
fundamentally different approach to
managing hazardous wastes at a site is
proposed As a result EPA has
determined that a ROD amendment
decision should be made after
consideration of public comments and
should undergo the same public and
support agency involvement as a
proposed plan.
10. Community relations during
enforcement actions (§ 300.430fc)J. The
proposed revisions clarify the respective
roles of lead agencies and responsible
parties during enforcement actions. The
proposed regulation provides that the
lead agency for an enforcement action
comply with the same community
relations requirements as under Fund-
financed actions (i.e., {{ 300.155,
300.415(n), 300.430 (c) and (f). and
300.435(c)j. At the discretion of the lead
agency, responsible parties may
implement aspects of the government's
community relations program under the
oversight and direction of the lead
agency. Responsible parties may. of
course, initiate their own additional
community relations activities, e.g.,
preparing fact sheets and/or conducting
public meetings. However, the lead
agency is still responsible for planning
and implementing the government's
community relations program.
For enforcement actions, EPA believes
that it may be appropriate to hold
meetings with the public. Including
PRPs, in order that concerns about the
remedy can be raised and discussed
among all parties.
Section 300.87(f) of the current NCP.
which allows the community relations
plan to be modified or adjusted at the
direction of a Federal district court, has
been deleted. The public participation
requirements of sections 113(k) and 117
of CERCLA contemplate a community
relations effort that is outside of the
jurisdiction of the Federal district courts.
In addition, CERCLA's statutory scheme
of remedy selection is one of an
administrative process with full public
participation prior to the filing of an
action under CERCLA section 106.
Given those factors, EPA has
determined that it is most appropriate to
delete that section of the current NCP.
11. Community relations during
remedial design/remedial action
(§ 300.435(c)). It is EPA's intent to
continuously undertake activities that
involve affected communities and
interested parties in actions taken at a
site. To that end, EPA proposes in
i 300.435(c) to add a requirement for
community relations after adoption of
the ROD. and solicits comment on other
potential community relations
requirements during the remedial design
(RD) and remedial action (RA) phases of
site activity.
EPA proposes that the lead agency
shall revise the community relations
plan (CRP) as necessary to address
community concerns during the RD/RA
phases of action, if not already
addressed by the CRP. It is
recommended that whenever possible,
this revision be based on interviews
with local officials, citizens, interest
groups, PRPs, or others in the affected
community, as appropriate, based on the
judgment and experience of the lead
agency. Revising the CRP ensures that
-------
Federal Register / Vol. 53, No. 245- / Wednesday, December 21. 1988 / Proposed Rules 51453
citizen concerns about the remedy
design and construction are addressed
through appropriate community
relations activities throughout the
implementation of the final remedial
action.
EPA is considering including other
community relations requirements
during RD/RA and solicits comments on
the advisability of doing so. For
example, the lead agency could be
required to prepare a fact sheet or other
public information document on the
proposed remedial design which would
inform the public about the design prior
to its completion. The public could be
notified of the availability of the fact
sheet or document through a variety of
techniques, such as a mailing to those on
the site mailing list or an advertisement
placed in a local newspaper of general
circulation. Another example could be
to require the lead agency to provide an
opportunity for a public information
briefing prior to the initiation of on-site
activity. Construction activities and
workplans could be explained with a
discussion of any short- and long-term
benefits and impacts of the construction
and final remedy on the surrounding
community. The public could be notified
of such a meeting through a mailing, an
advertisement, or other techniques
chosen by the lead agency. Another
example would be to require notification
to the public of the beginning and end of
the remedial action phase. Again, this
notification could be done through the
method determined by the lead agency
to be most effective for reaching
members of the public interested in the
specific site.
12. Other person participation
(§300.700}. Section 300.700(c) proposes
that private parties undertaking
response actions shall, in order to be
consistent with the NCP, comply with
either the public participation
requirements for Fund-financed
response actions (including { { 300.155,
300.4I5(n). 300.430 (c) and (f). and
300.435(c)J or State and local
requirements which provide a
substantially equivalent opportunity for
public involvement in the choice of
remedy.
Section 300.435 Remedial Design/
Remedial Action/Operation and
Maintenance.
This section is entirely new. EPA
proposes to add this section to the NCP
because, as discussed earlier, EPA is
reorganizing the NCP to make it
correspond more accurately with the
order in which response actions are
usually implemented. The current NCP
does not address the activities discussed
in this section. The purpose of remedial
design (RD) is to design and draft the
specifications for the remedy selected
under { 300.430. The purpose of remedial
action (RA) is to implement the remedy
•elected. The purpose of operation and
maintenance (O&M) is to maintain the
integrity of remedial actions when the
remedial action is complete. EPA today
proposes to codify this last portion of
the response process.
The following discussion generally
follows the outline of the proposed
regulatory language and explains
significant points paragraph by
paragraph.
1. General and RD/RA activities
(§§300.435 (a) and (b)). Paragraph (a) of
§ 300.435 gives a general description of
RD/RA and O&M to assist the reader in
understanding these activities.
Paragraph (b)(l) states that RD/RA
activities must be consistent with the
language of the ROD regarding those
activities. Although the ROD may not
specify all of the details of RD/RA
activities, the implementation of RD/RA
activities must flow from the remedy
selected in the ROD and not be
inconsistent with, or substantively
different from, the remedy and the intent
stated in the ROD.
Paragraph (b)(2) states that all Federal
and State ARARs identified for the
specific site, or that the conditions of
any waivers of ARARs must be met
during the RD/RA. Note that the ARARs
preamble section also discusses ARARs
that may be identified during the RD
(paragraph F.12).
2. Community relations. See Subpart
E, § 300.430 preamble section "R
Community Relations," for discussion of
S 300.435(c) and all other community
relations requirements.
3. Contractor conflict of interest
(§300.435(d)). This paragraph addresses
remedial action contractors who are
potentially responsible parties at a site.
Frequently, these contractors will have a
conflict of interest which prevents them
from serving the best interests of the
State or Federal government in the
capacity of remedial action contractors
carrying out CERCLA section 104
activities. This paragraph requires the
lead agency to include in the bidding
documents language requiring potential
contractors to disclose all pertinent
information regarding their status as
potentially responsible parties, including
the status of their parent companies,
their affiliates, and their subcontractors.
Furthermore, the potential contractors
must certify that they have disclosed all
such information or that no information
exists regarding their status as
potentially responsible parties.
The new paragraph also requires the
lead agency to follow certain procedures
during the awarding of remedial action
contracts to safeguard against
contractor conflict of interest The lead
agency must verify prior to awarding the
contract that the potential contractor
and subcontractors do not have any
conflicts of interest that would affect
their performance. The proposed
regulatory language would allow the
lead agency the discretion to opt for
actions less severe than denial of the
contract award for situations in which
the contractor's role at the site has been
very minor or is not yet determined. In
such a situation, the lead agency may, in
the interest of saving time and money,
elect to proceed with a contract award,
and ensure enhanced government
oversight of the remedial action. The
new paragraph provides that, in case the
low bidder on a contract does have a
conflict of interest that prevents the
contractor from serving the best
interests of the lead agency, the lead
agency may declare the bidder
nonresponsible.
4. Recontracting for additional work
(§300.435(e)). EPA proposes this new
language to conform to the CERCLA
amendments. Occasionally, as new
information is generated by the RD/RA
process, changes need to be made to the
scope of the work in the contract for
Fund-financed remedial actions.
Contract law generally requires the
contract to be terminated when changes
to the scope of work are needed. Section
300.435[e] incorporates the provisions of
CERCLA section 104(c)(8) and applies to
all Fund-financed remedial actions. The
purpose is to avoid disruption of a
remedial action when recontracting is
required for remedial services, such as
when additional contamination
requiring a different response procedure
is found. Situations requiring contract
termination are handled differently,
depending on whether EPA or the State
has the lead for the site. Where EPA has
the lead, EPA may extend the existing
contract to conduct Interim work
necessary to address a hazard to human
health or the environment until EPA can
reopen the bidding process and
recontract to complete the remedial
action. Where a State has the lead, the
State must consult with EPA, and the
cooperative agreement must be
amended to address the new situation.
The paragraph also repeats the $2
million statutory restriction of such
interim actions.
5. Operation and maintenance
(§3O0.435(f)). Section 300.430{f)
addresses O&M, which is the final step
in the remedial process. (See { 300.510(c)
-------
51454 Federal Register / VoL 53. No. 245 / Wednesday, December 21, 1988 / Proposed Rules
for State assurance* on O&M.) Moat of
paragraph (f) is proposed to focus on the
O&M provision in CERCLA section
104(c)(8). This provision defines as
remedial action the operation of
measures to restore contaminated
ground or surface water for a period of
up to ten years after the commencement
of operation of such measures (or until a
protective level is achieved, if less than
ten years). The practical effect of this b
that the Fond -win pay 90 percent (or 50
percent for a publicly operated site) of
the costs of measures to restore die
ground or surface water for a period of
up to ten years.
EPA also proposes to clarify in the
NCP that the W-year provision does not
apply in two situations. The first
situation is where source control
maintenance measures are initiated to
prevent farther contamination of ground
or surface waters and continued O&M is
needed to control the source. Scarce
control maintenance, although it may
prevent further contamination of ground
and surface waters, is separate and
distinct from ground and surface water
restoration activities. For example,
leachate control systems for
containment units constitute a form of
source control maintenance and do not
constitute the restoration of an aquifer.
EPA proposes that, upon completion of
construction of a source control system,
and once the system is operational and
functioning properly, EPA's funding
obligations cease.
To illustrate, suppose that a Fond-
financed site has contaminated soil,
surface impoundment sludge, and
contaminated ground water. The remedy
selected includes placing the soil and
sludge in an on-site, RCRA compliant
land disposal facility with a leachate
collection/treatment system and
operating a system to pump and treat
the contaminated ground water. Under
this scenario, EPA would pay 90 percent
of the cost of pumping and treating the
ground water for up to ten years but (he
State would be responsible for operating
and maintaining the leachate system. R
should be noted that this example
assumes that the source control remedy-
has been-completed and meets
protective levels.
Source control measures that are
ongoing and have not yet achieved the
protective levels indicated in the ROD
are remedial action, not O&M. If, for
example, the selected remedy fa to land-
farm soils for several years, the land-
farming costs would be paid'for by Ac
Fund until the cleanup level* ki the soils
stipulated in the ROD have been
achieved. Only if O&M is required for
me soil's (e.g., erosion control) after
these cleanup levels nave been achieved
wecdd the State be responsible for the
costs.
The second situation where the 10-
year provision does not apply is where
measures are initiated for the primary
purpose of providing a drinking water
supply. Ground or surface water
measures initiated for reasons other
than restoration would not be subject to
the 10-year provision. For example, in
some situations a determination may be
made (hat restoration of ground or
surface water is infeasible or not cost-
effective and, therefore, the drinking
water source in the ground or surface
water cannot be brought to drinking
water standards. If the most cost-
effective mean* of providing the
drinking water is to pump and treat the
coBtamiaated water and directly supply
it to the affected population. EPA would
pay for the construction of a treatment
system designed to meet the
population's water needs and any
operational costs up to one year to
verify that the treatment system is
operational and functional Situations
where the selected remedy is to pump
and treat to restore the ground or
surface water drinking water source as
well as to provide drinking water will be
addressed on a case-by-case basis, ki
making a determination in these cases
EPA will take into account how
separable the costs are and other
relevant factors.
EPA solicits comments on its
interpretation of "restore ground and
surface water quality" and on the merits
of the alternatives that EPA has not
adopted. Specifically, EPA requests
comment on whether the 10-year
provision for Federal funding of O&M
should extend to situations where the
primary purpose of ground-water
freatment is to provide drinking water
supplies from water contaminated at the
site without restoring it
Subpart F—State Involvement in
Hazardous Substances Response
Proposed Subpart F is completely
new. R combines concepts described in
the current NCP { 300.82 on State role
and { 300.68 on State involvement in
remedial artion. The proposed new
subpart codifies- in one place all
regulatory requirements for Stats
participation and involvement in
CERCLA-attthorized response activities.
It alao includes the minimum
requirements EPA wifl follow to ensure
that all States are provided an
opportunity for "substantial and
meaningful" involvement in remedial
and enforcement actions, as mandated
by CERCLA section m(f)(t). The
following preamble discussion gives an
overview of the Subpart.
A. Summary of Sabpart F Sections
1. General overview and context
(§300300). CERCLA section 104(d){l)
permits EPA to transfer Federal fund:;
and to authorize States to undertake
CERCLA response activities via a
cooperative agreement Under this
agreement the Slate is the lead agency
for conduct of. response actions at that
site. For State-lead Fund-financed
remedial and enforcement actions, the
cooperative agreement is also used by
EPA to obtain the required State cost-
share and other CERCLA section 104(c]
assurances. IB a Federal-lead response,
EPA leads the response with the State
acting in a support agency role. For
Federal-lead Fund-financed remedial
actions, a Superfund State contract is
the mechanism used by EPA to obtain
the required State, coat-share and other
CERCLA section 104 assurances.
Regardless of the feed agency
designation. CERCLA section 121(0(1)
requires State involvement in pre-
remedial, remedial, aad enforcement
response activities. To meet the
requirements of CERCLA and strengthen
the EPA/State partnership, Subpart F
establishes comparable processes for
EPA's involvement hi State-lead
response and Stale involvement hi EPA-
lead response. Sabpart F. therefore, is
applicable both to EPA aad the State
when either is in a lead or a support
agency cole. The concept of lead and
support agency as defined in Sabpart A
is integral to the approach taken in
Subpart F to ensure dose coordination
and cooperation during response at all
sites listed oa the NPL. Hie term
partnership does not imply that EPA and
a State enter into formal legal
partnership arrangements,
Subpart F introduces the EPA/State
Superfund Memorandum of Agreement
(SMOA) as a vehicle for establishing an
effective EPA/State working
relationship. SMOAs are intended to
strengthen EPA/State interaction by
specifying ia advance how EPA and
each State will conduct response
activities in keeping with the concept of
partnership. SMOAs are encouraged but
they are not mandatory for a Fund-
financed action unless the State wishes
to recommend the remedy for EPA
concurrence, or to be recognized as the
lead agency for a non-Fund-financed
action at an NPL site. The Region will
enter into a SMOA if the Slate requests
it to do so and the State has
demonstrated the capability to take the
lead for response. EPA solicits
comments on the appropriateness of
-------
Federal Register / Vol. 53, No. 245 / Wednesday. December 21. 1988 / Proposed Rules 51455
requiring in the regulation that Regions
enter into SMOAi if States request them
and have demonstrated capability to
take the lead for response action.
Specific provisions of a SMOA may
vary or EPA Regions/States may find
that SMOAs are not appropriate to their
particular circumstances. However, in
those situations where a cooperative
agreement is not necessary or desired,
the SMOA must be the mechanism for
establishing the State as lead agency.
States may still use a letter to recognize
Federal lead for RI/FS and remedial
design at privately operated sites. Such
a letter is necessary for EPA to initiate
action at a site if a site-specific
agreement has not been signed and a
SMOA does not exist
SMOAs are intended to define and
facilitate communication between EPA
and a State on all aspects of the
response process. SMOAs are not
legally binding, do not delegate or
transfer authorities, and do not convey
funds. For example, a SMOA may
address in general EPA/State
interaction at Federal facilities but the
SMOA cannot impose requirements nor
obligations on the Federal agencies .
concerned or provide any authorities to
States with respect to the Federal
facilities. The SMOA is simply intended
to delineate the procedures that EPA
and the State will follow to ensure
mutually satisfactory communications.
Subpart F does not establish specific
oversight requirements for EPA's role
during State-lead Fund-financed
response, since all Fund-financed
response actions must comply with
CERCLA and the NCP. Instead, EPA
expects technical oversight to be
addressed by a SMOA or by site-
specific documents, such as a
cooperative agreement.
2. Cross-references for various forms
of State participation (§ 300.500(b)). This
paragraph provides cross-references to
the specific paragraphs in Subpart F that
address the different types of State
participation.
3. EPA/State superfund memorandum
of agreement (§ 300.505). This section of
the NCP describes what EPA and a
State may agree to include in a SMOA.
The consultation process described in
this section is the key to a strong EPA/
State partnership dedicated to the
remediation of as many hazardous
waste sites as possible by utilizing the
combined resources of States and EPA
and avoiding duplication of effort while
protecting the interests of both parties.
The primary goals of the SMOA are
to: (i) Provide maximum flexibility to
EPA and States in planning and
implementing response actions; (ii)
ensure an equitable EPA/State
partnership during response; (iii) reduce
or eliminate misunderstandings by
clarifying EPA and State expectations;
and (iv) designate lead agency status for
States in the absence of a cooperative
agreement
Although S 300.525 discusses State
involvement in removals, the removal
program is not included in the NCP
discussion of the SMOA. There is
concern that the nature of the removal
program requires that there be
maximum flexibility in determining how
each removal activity will be conducted.
EPA Regional offices and States agree
that the current EPA/State removal
interaction is effective.
However, where practicable, a SMOA
may include general provisions for EPA/
State interaction on removal actions by
specifying: (a) The process to be
followed by EPA and a State to notify
each other of a determination that a
removal action is necessary; (b) the
procedures to be followed by EPA and a
.State to consult and comment upon the
nature of any proposed removal action;
and (c) the procedure to be followed to
provide for post-removal site control as
described in (300.415(1). Generally, the
SMOA provision should specify that
responsibility for post-removal site
control should be discussed and
provided for before the implementation
of the removal action. The definition of
the consultation process is intended to
facilitate EPA/State agreement on the
nature and extent of any removal action
before the removal action is initiated.
To ensure EPA and State
accountability for adherence to the
terms of the SMOA, the Regional
Administrator and the responsible State
agency head must sign this agreement. It
is a State-specific, general agreement
that should remain applicable for
several years, needing modifications
only as changes in legislation.
regulation, policy, or guidance occur that
affect the EPA/State partnership. The
SMOA should be implemented through
more detailed site-apecific documents
which should be updated or revised
annually or otherwise as necessary.
EPA and the State will meet annually to
designate who will be the lead agency
for specific sites.
The SMOA sets forth overall
understandings that should be used as a
base from which to operate when
developing site-specific cooperative
agreements and Superfund State
contracts. Cooperative agreements and
Superfund State contracts will continue
to be the documents for delineating EPA
and State site-specific responsibilities
and obtaining State assurances as
required by CERCLA section 104.
However, because a cooperative
agreement will not exist for State-lead
oon-Fund-financed actions, a SMOA
will be required for EPA to designate the
State as lead agency for a non-Fund*
financed response at an NPL site. The
SMOA will be supplemented by site-
specific enforcement agreements
between EPA and the State which
specify schedules and EPA involvement.
SMOAs may address both non-Fund-
financed State response actions and
Fund-financed actions at NPL sites.
Non-Fund-financed State response
actions do not hare to comply with
CERCLA, unless a State wishes to
recover costs under section 107 of
CERCLA or to receive credit per section
104(c)(5) of CERCLA for its remedial
action expenditures if the site is on the
NPL or subsequently listed on the NPL
However, it is EPA's opinion that non-
Fund-financed State response actions at
NPL sites should comply with CERCLA,
as amended, to promote national
consistency, avoid additional Federal
response actions, and expedite deletion
of a site from the NPL upon completion
of the response action. Possible
consequences of States not complying
with section 121 of CERCLA or not being
consistent with the NCP are discussed
below in paragraph 9 of this Subpart F
preamble.
The SMOA may identify which
documents prepared in the course of
response activities require review.
comment or approval by the support
agency prior to the lead agency
proceeding with further work at the site.
Because of wide variations in
complexity at site responses, the
documents designated for support
agency review, comment or approval
may be altered by mutual agreement in
the cooperative agreement or Superfund
State contract covering a specific site.
See Subpart F preamble, paragraph 11
below, for a description of requirements
in the absence of a SMOA or if the
SMOA does not address the
requirements specified in { 300.515(b).
4. State assurances (§300.510). Section
300.510(b)(l) addresses State cost-share
requirements, including the codification
of the statutory provisions for use of
credits to offset a State's required cost-
share. CERCLA continues to authorize
credit for State or political subdivision
expenditures or obligations for cost-
eligible response actions taken at NPL
sites from 1978 to 1980. From October 16,
1986, forward. CERCLA section 104(c)(5)
limits credit to State expenditures only
for remedial action. States may now
receive credit toward their cost-share
obligation for remedial action
expenditures at NPL sites when taken
pursuant to a cooperative agreement
-------
S1456 Federal Register / VoL 53. No. 245 / Wednesday. December 21. 1988 / Proposed Rdes
end remedial action expenditures at
noa-NPL sites which are bier listed on
(he NPL and documented in a
cooperative agreement or a Superfand
State contract with EPA. States tint
contributed 50 percent toward Fund-
financed response actions at publicly
owned but not operated NPL sites
pursuant to a cooperative agreement or
Superfund State contract in effect
between the enactment of CERCLA and
the enactment of the 1986 amendments
to CERCLA may receive a credit for that
amount of the cost stare supplied ever
10 percent
Sections 300.510 (c) and (dj read that
States must provide assurances for
operaticn and maintenance and off-site
disposal, when required. Sectkm
300.510(e) addresses the CERCLA
section 104(c)(9) assurance on 20-year
capacity on all hazardous waetes (not
jnst hazardous waste from CERCLA
sites) generated within a State. EPA will
provide more details on how the
assurance will be made and how EPA
will determine the adequacy of a State's
assurance at a later date. Currently,
these issues are being addressed by an
EPA task force.
Section 300510(11 addresses the
CERCLA section 104(j) assurance for
acquiring an interest in real property in
order to conduct a response action. In
the case of permanent relocations and
certain other response actions, where it
is necessary to acquire ownership or
some lesser interest in real property.
EPA will determine when an acquisition
of any property interest is necessary.
Generally, the Slates will carry out the
required acquisition and hold title to the
property interest. However, there may
be instances in which the Slate lacks
authority to condemn or otherwise
acquire property or is unable to do so in
an expeditious manner. The United
States Government may then agree to
acquire the necessary interest, but only
if the response cannot proceed without
the acquisition and if the State first
agrees to accept transfer of the acquired
interest. The State most accept transfer
at the conclusion of the response as
earlier if EPA determines it to be
necessary to facilitate the response, as
appropriate under the particular
circumstances.
5. Requirements for State involvement
in remedial response (§300.515). This
section combines existing language from
S $300.62 and 300.G8 of the current NCP
with new language that describes hovr
EPA intend* to satisfy requirement* for
State involvement established by the
1986 amendments to CERCLA.
6. General (§3OO£15(a)j. In order to
determine whether the State is the
appropriate agency to assume the lead
agency responsibilities at an NPL site,
EPA is considering various criteria that
would assist EPA Regional Offices and
the States in making such decisions.
Some of the criteria under consideration
are: overall expertise, legal authorities,
administrative and contracting
capability, financial management
system* (according to the applicable
assistance agreement regulation),
availability «f general resources,
complexity of the site, avaflabifity of
site-specific resources, workload and
expertise, past Federal or State actions
at Ae site, and past State cleanup
activities. EPA solicits comment on
these possible criteria and whether
farther criteria shooid be added.
As described in the Sobpart E,
I 309,425 preamble section, "D. Deferral
Policies," EPA is considering a policy
which would provide the States with the
opportunity to request that a site be
deferred fron listing on the NPL
Deferral to State authorities is part of an
overall proposed policy to allow EPA to
defer fisting sites on the NPL where
other Federal or State authorities and
their implementing programs can
address problems at those sites. As a
part of this proposal, EPA describes
criteria it is considering for deferring
listing of sites on the NPL fot response
under State anthorities. The deferral
criteria are not identical to the above
criteria for lead agency designation; the
above criteria are intended solely for
State-lead actions under CERCLA.
7. Applicability of State irrvotvement
requirements to Indian Tribes
(§ 300.515{b;). CERCLA requires EPA to
afford to Indian Tribes substantially the
same treatment as it would to States.
Therefore, an Indian Tribe may be
authorized to endertake the lead for
Fund-financed response activities vra a
cooperative agreement if: (i) The Indian
Tribe is FederaHy-recognized; (ii) the
Tribal governing body is currently
performing governmental functions to
promote the health, safety, and welfare
of its affected population or
environment (Hi) the Indian Tribe can
demonstrate an ability to carry out the
response actions (with the exception of
criminal enforcement actions) which it
seeks authority to perform hi
accordance with the criteria and
priorities established by the NCP; [iv)
the Indian Tribe can demonstrate that
the functions to be performed are within
the scope of Hs jurisdiction; and (v) the
Indian Tribe can demonstrate a
reasonable ability to effectively
administer a cooperative agreement
including having accounting and
procurement procedures that comply
with the applicable assistance
agreement regulation. The reason for
excluding criminal enforcement actions
from Fund-financed response actions is
that Tribes do not have criminal
enforcement jurisdiction over non-
Indians.
EPA proposes to provide for EPA
interaction with Federally-recognized
Indian Tribes when an NPL site is on
Indian lands. When this occurs, a
separate SMOA may be developed and,
in some instances, the SMOA may be a
three-party agreement between EPA, the
State, and (he FederaHy-recognized
Indian Tribe. Under CERCLA section
I04fc)C3J. Federally-recognized Indian
Tribes do not have to provide CERCLA
104(c) assurances. The definition of
"State" in Subpart A of the NCP is
proposed to include Indian Tribes and, '
therefore, unless specified otherwise, -
Federally-recognized Indian Tribes
generally may have the same roles and
responsibilities under the NCP as do
States.
8. State involvement ia the PA/SIs
and NPL listing and delation process
(§ 3OO£15{c)). The intent of Subpart F is
to ensure significant State involvement
in the pre-remedial and remedial phases
of Superfund responses. It is EPA's
position that cooperation with the States
throughout the response process will
assist in meeting the national goal of
maximizing the number of responses.
One step ki the response process where
State involvement is necessary is at the
pre-remedial phase of response in which
potential sites are evaluated, scored,
and listed oa the NPL. States have the
option of performing PA/SIs.
EPA proposes to ensure significant
State involvement m the NPL listing
process by requiring EPA to consult with
the State on EPA-icinated draft Hazard
Ranking System scoring packages. EPA
would then provide a 20- to 30-day
review period for States to comment on
the proposed listing of cites in that Sta jc
The Slate's comments, which may
include new or additional information
on the site, would be reviewed by EPA
and taken into consideration prior to
publication of the proposed listing.
In addition, S 300.515(c)(3) contains
requirements for State involvement in
the NPL deletion process. In accordance
with die amendments to CERCLA, EPA
must obtain Slate concurrence in order
to delete a site from the NPL.
9. EPA and State consultation in
remedialplanning and selection of
remedy process (§§ 300.515 (d) and (e)).
Section 300.515{d)(Z) establishes a
process for feed and support agency
consultation and solicitation of their
respective identified ARARs and other
criteria, guidance, and advisories to be
considered (TBC) which may be helpful
-------
Federal Register / Vol. 53. No. 245 / Wednesday, December 21. 1988 / Proposed Rules
51457
in establishing protective cleanup levels.
(See general discussion of ARARs and
TDCs in 5 300.430 preamble section, "F.
Compliance with applicable or relevant
and appropriate requirements of other
laws."} This process is ongoing
throughout the remedial response .
process, and is effective only if lead and
support agencies work together at each
of several key points. This
communication/consultation process
should ensure that all responses comply
with all ARARs and, where appropriate,
that other criteria, guidance, and
advisories are considered.
Sections 3G0.515(d) (1) and (2) make
the lead agency responsible for (i)
Identifying its own ARARs and TBCa;
and (ii) soliciting from the support
agency its ARARs and TBCa. The lead
agency is also responsible for providing
to the support agency information about
the site and nature of the contamination,
as well as the remedial alternatives
being considered. The support agency
will identify its ARARs and TBCs for the
lead agency in as detailed and
comprehensive a manner as possible on
a site-specific basis. Each agency is
responsible for coordinating ARAR and
TBC identification with other offices or
agencies within its own organization. If
a Region and State have entered into a
SMOA, the SMOA may contain a
provision on the process to be followed
for identifying Federal and State ARARs
as required in 5 30tX515(d)(2).
Furthermore, CERCLA section
121(d)(2) provides that State ARARs
must be met if they are communicated to
EPA in a timely manner. EPA proposes a
general definition of timely manner in
J 300.515(d){l). which requires that the
lead and support agencies identify their
respective APARs and TBCs and
communicate them to each other so that
sufficient time is available for the lead
agency to consider and incorporate such.
ARARs and TBCs into the remedy
selection process without inordinate
delays and duplication of effort EPA
proposes to apply this requirement to
both the lead and support agency
because it is in keeping with the concept
cf a Federal/State partnership and will
ensure that information is shared in a
timely manner. EPA proposes that the
SMOA may specify that the
identification/solicitation process occur
within certain mutually agreed upon
timeframes. These timeframes may be
modified as necessary on a site-specific
basis in cooperative agreements or
Superfund State contracts. The SMOA
may also define lead and support
agency roles in the ARARs
identification process that are more
comprehensive than what EPA has
proposed today for the new Subpart F.
This allows more flexibility in soliciting
ARARs and TBCs and will enable
changes in the process to be made as
experience is gained.
The ARARs solicitation process
established in the SMOA will identify
the appropriate EPA/State management
staff level for communication and
solicitation of ARARs and TBCs. This
process should identify at least one
written lead agency request for ARAR/
TBC identification and requires a
minimum of one written response from
the support agency. This documentation
should be included in the administrative
record.
In the absence of a SMOA, EPA
proposes in | 300.51S(h)(2) to establish
minimum points where the lead and
support agencies must identify and
communicate in writing their respective
ARARs and TBCs. This will ensure that
the lead agency has sufficient data and
, time to consider the ARARs and TBCs in
developing and selecting the preferred
remedy.
Whether or not a SMOA is in place,
EPA expects that the focus of
solicitations will be toward requesting
the specific kinds of ARARs and TBCs
needed at a specific time (e.g.,
contaminant- or location-specific
ARARs/TBCs after site characterization
information becomes available, and
action-specific ARARs during the early
stages of the comparative analysis of
remedial alternatives). Alternatively, the
lead agency could make a preliminary
ARAR determination to which the
support agency can respond and/or
elaborate.
Procedures and time periods for State
notification, review, and concurrence
regarding a remedy that either waives
State ARARs or that attains ARARs
other than those identified by the State
are proposed in J$ 300.515(d)(3) and (4).
EPA expects its Regional offices and the
States (with assistance from EPA
Headquarters as necessary) to negotiate
and resolve differences of opinion
regarding ARARs, and all other areas of
disagreement (e.g., preferred
alternatives or alternatives to be
evaluated). The dispute resolution
process adopted by the Region and the
State should be used to resolve any
differences that might impede the
response process. Differences should be
addressed at the staff level first and
raised to management if a mutually
acceptable solution is not attained. If
necessary, the Region and the State can
jointly raise the dispute to the Assistant
Administrator for Solid Waste and
Emergency Response for a final
determination. If the Region and the
State prefer to establish a different
dispute resolution process in their
SMOA. that process will be followed.
Section 300.S15(e)(l) addresses lead
agency responsibilities with respect to
the proposed plan. The lead agency and
support agency will consult and attempt
to reach agreement on the proposed
plan. The proposed plan will include a
statement of the support agency's
opinion on the proposed plan.
Agreement between the lead and
support agencies on the proposed plan is
not required prior to publishing the
public notice but such agreement is
highly encouraged. If the State is the
lead agency for a Fund-financed action
but EPA cannot concur with the State's
proposed plan after all efforts at
resolving differences have failed, EPA
will assume the lead for the proposed
plan and preparation of the ROD. If EPA
is the lead agency, and the State cannot
support EPA's proposed plan, EPA may
publish the plan, but must include the
State's objection and concerns and state
why EPA disagrees with the State.
Section 300.5l5(e)(2) discusses the
roles of EPA and the State in the
selection of remedy process. It reflects
the evolution of the EPA/State
partnership in recent years by providing
the State, when it is the lead agency,
with responsibilities in the selection of
remedy process. This new concept
would be applicable to both Fund-
financed and non-Fund-financed actions
(e.g., enforcement sites] in which the
State as lead agency would recommend
the remedy and provide EPA an
opportunity to concur with and adopt
the remedy. Concurrence is hi keeping
with the statutory requirement to
provide substantial and meaningful
involvement in the initiation,
development, and selection of remedial
actions.
The concept of concurrence by EPA is
designed to further the EPA/State
partnership, optimize the use of
governmental resources, and increase
the number of response actions. Under
the current NCP, EPA has significant
involvement in and oversight of
activities at State-lead Fund-financed
sites. Conversely, EPA has limited
involvement at State-lead non-fund-
financed sites. States currently have
limited responsibilities during selection
of remedy at EPA-lead sites.
Concurrence increases EPA involvement
at State-lead non-Fund-financed sites
and provides for a greater State role in
the selection of remedy process at Fund-
financed sites.
Under this approach, a State can
recommend a remedy for EPA
concurrence and adoption only when a
-------
51458 Federal Register / Vol. 53, No. 245 / Wednesday. December 21, 1988 / Proposed Rules
SMOA is established Through the
annual planning process, EPA and the
States will designate at which State-lead
Fund-financed and non-Fund-financed
sites the State will prepare the ROD for
EPA concurrence and adoption.
EPA intends to implement selectively
the process of State preparation of
RODs for EPA concurrence and
adoption at State-lead Fund-financed
sites, since this process is not
necessarily applicable to all States, nor
for all sites within a State. Moreover,
States are not required to accept this
responsibility. Sites will be selected
where the circumstances at the
particular site warrant less EPA
involvement and the State has
demonstrated its capability to conduct
remedial response actions in an
effective and responsible manner. EPA
concurrence in and adoption of a
remedy recommended by the State may
not be appropriate at Fund-financed
sites where the State has not
demonstrated that it possesses the
necessary capabilities or where the
particular circumstances indicate that
greater EPA involvement is necessary.
Under the proposed concurrence
process, EPA can select the remedy at
EPA-lead sites even when a State
neither responds nor concurs with the
recommended remedy. However, the
State must provide the assurances'
required by CERCLA section 104 before
EPA can proceed with the remedial
action.
When a State is the lead agency at a
Fund-financed site for developing the
RI/FS and preparing the ROD, the State
may prepare the proposed plan (if
agreed to by EPA), publish the not'ce of
availability, prepare the responsiveness
summary, and develop the ROD. thereby
recommending a remedy for EPA
concurrence and adoption. Additionally.
the State is responsible for compiling
and maintaining the administrative
record for selection of the response
action and documenting and providing
necessary information for cost recovery.
A State cannot proceed with Fund-
financed response without EPA's
concurrence in and adoption of the
remedy. Silence by EPA shall not be
construed as concurrence or adoption.
EPA and a State may agree that
certain sites will be designated as non-
Fund-financed State-lead enforcement
actions (i.e., the State is responding
pursuant to its own authorities). At such
sites, a State may proceed without
further EPA concurrence. However, the
State may select the remedy, prepare the
ROD, and seek EPA concurrence with
the remedy in order to: (a) Promote
effective use of Federal and State
resources; (b) promote national
consistency in responses; (c) avoid the
need for additional Federal response
actions: (d) induce PRPs to agree to
perform necessary response actions; and
(e) expedite deletion of the site from the
NPL at the completion of the response
action.
At non-Fund-financed State-lead
enforcement sites, the State is
responsible for proper implementation
of the remedial action so that the site
will meet criteria for deletion from the
NPL. However, even when EPA concurs
with the remedy selected and
implemented by the State, EPA may still
proceed under its own CERCLA
authorities if necessary to ensure
compliance with CERCLA section 121
and other pertinent provisions of
CERCLA.
Subpart F does not require that States
select remedies for non-Fund-financed
State-lead enforcement sites in
conformance with CERCLA section 121
and the remedy selection process
specified in the NCP. However, where a
State-selected remedy does not so
conform. States and/or PRPs may be at
risk in several ways, including, but not
limited to the following: (1) EPA will not
concur with the recommended remedy;
(2) EPA may refuse to designate the
State as lead agency for any subsequent
response activities; (3) States and PRPs
may be deprived of the assurance that
EPA will not find it necessary later to
seek to compel further response actions;
(4) EPA may be unable to delete a site
from the NPL and/or (5) State cost
recovery efforts may be hindered.
If disputes arise with respect to
concurrence, the dispute resolution
procedure discussed above or, as
otherwise specified in a SMOA, should
be invoked so that EPA and the State
can reach a mutually acceptable
decision on the appropriate remedy.
Section 300.515(f) addresses State
funding of substantive requirements
beyond the scope of the selected
remedy, including procedures for
attainment of State standards which
EPA has determined not to be ARARs or
which EPA has determined to waive.
EPA intends this section to apply to
State-funded additional elements of the
basic remedy selected or concurred
upon by EPA. The State may be required
to assume the lead for remedial design
and implementation of such remedial
actions or EPA may maintain the lead if
the EPA Region determines that
financial responsibility and related
issues do not present obstacles to EPA-
lead remedial action. Another option is
State assumption of the lead for only the
State-funded addition if those additional
requirements can be done as a separate
operable unit.
EPA encourages States to participate
in EPA-lead enforcement negotiations as
provided for in section 121(f)(l) of
CERCLA and proposed in S 300.520 of
the NCP and to conduct State-lead
enforcement actions consistent with
CERCLA and the NCP. To maximize
PRP responses through State-lead
enforcement actions. Federal financial
assistance may be provided to support
these actions.
During EPA-lead enforcement actions.
EPA intends to provide States with
opportunities for review, consultation,
and concurrence. As with Fund-financed
response, the general degree of State
involvement in EPA-lead enforcement
actions should be outlined in SMOAs.
Although opportunities for State
involvement are provided in this
subpart. EPA may determine that
substantive State standards are not
ARARs, or may waive State ARARs
pursuant to CERCLA section 121(d)(4]
for remedies proposed by EPA during a
Federal-lead enforcement action. In
those circumstances, pursuant to
CERCLA section 121(f)(2)(A), States are
provided an opportunity to concur or
nonconcur with the remedy selected by
EPA. Procedures for seeking the
modification of the remedy to conform
to State ARARs are found in section
121(fJ(2)(B) of CERCLA.
During State-financed or State-lead
enforcement actions at NPL sites, States
should provide EPA with an opportunity
for the review of key documents and
consultation during the remedial
response process. For State-lead
enforcement sites, the State will prepare
the ROD (generally, EPA will not
prepare the ROD at State-lead
enforcement sites unless the State and
EPA agree otherwise). The general
degree of EPA involvement may be
outlined in the SMOA. EPA's oversight
and involvement in State-lead
enforcement actions where EPA is
providing financial assistance will be
delineated in site-specific cooperative
agreements. EPA does not intend to be
routinely involved in negotiations at
State-financed enforcement sites;
however. EPA expects that States will
notify EPA of negotiations with
potentially responsible parties and
provide opportunities for involvement to
facilitate EPA concurrence with
recommended remedies when the State
seeks EPA concurrence. It is recognized
that due to workload and resource
constraints associated with EPA-lead
projects, EPA may not have adequate
staff or resources to review certain
plans and that EPA will not be bound to
any decisions made by the State if EPA
fails to respond. Settlements achieved
-------
Federal Register / Vol. 53, No. 245 / Wednesday, December 21. 1988 / Proposed Rules 51459
will normally be between the State and
potentially responsible parties. Also, the
requirements outlined in 5 300.515 for
Fund-financed remedial response will be
applicable to Fund-financed State-lead
enforcement actions. For State-lead
enforcement sites, the State should
request that EPA provide: (A) Identified
Federal ARARs; (B) a review of the
State or potentially responsible parties'
PS and proposed plan; (C) a response to
comments on waivers to, or
disagreements about. Federal ARARs;
and (D) concurrence in RODs.
10. State involvement in remedial
action (§30031S(g)). A key point for
EPA/State interaction during Fund-
financed remedial action will be the
Joint inspection of the remedy as
specified in § 300.515(g). The purpose of
this inspection is to ensure that the
remedy has been constructed in
accordance with the ROD and the
remedial design.
11. Requirements for State
involvement in the absence of a SMOA
(§30O.515(h)). Section 300.515(h)
describes categories of requirements
that must be met in the absence of a
SMOA: annual consultations;
identification of ARARs and TBCs; and
State review and comment on EPA-lead
RI/FS, proposed plan, ROD, ARAR/TBC
determinations, and remedial design.
These requirements also apply where a
SMOA is negotiated but does not
address a specific category. For
example, a SMOA may include
requirements for annual consultations
and State review but not identification
of ARARs and TBCs. In this case, the
requirements in § 300.515(h) regarding
identification of ARARs and TBCs must
be complied with. If a SMOA does
address a particular category, the
SMOA may specify requirements
different from those stated in
S 300.5is(h) except that, at a minimum,
the SMOA must include the ARARs
identification requirements specified in
S 300.515(h}(2). For example, a SMOA
may include requirements regarding
State review of EPA-lead documents but
specify shorter or longer timeframes for
that review.
12. Administrative record
(§300.S15(i)). The administrative record
is an important aspect of the response
process. The purpose of this paragraph
is to remind the reader that the SMOA
can address the procedures for
compiling and maintaining the
administrative record. It also directs the
reader to Subpart I for more information.
13. State involvement in EPA-lead
enforcement negotiations (§300,520).
CERCLA section 121{f){2) requires EPA
to provide notice to States regarding
negotiations with PRPs, Accordingly.
EPA la proposing this section to
implement the CERCLA mandate.
Although this section focuses on State
notification and involvement in remedial
investigations/feasibility studies (RI/FS)
and remedial design and remedial action
(RD and RA) PRP negotiations. EPA
does not intend to preclude notification
to and involvement of States as
appropriate hi other enforcement
actions.
14. State involvement in removal
actions (§300.525). This section
addresses State Involvement with EPA
in the removal program. Although the
USCG also works closely with the
States when undertaking CERCLA
response. Subpart P requirements do not
apply to State involvement in USCG
responses. Statutory requirements for
removals are not the same as those for
remedial and enforcement response:
therefore. State involvement differs
significantly. Although { 300.5t5(a) is
generally applicable to State-lead
removals. S 30O525 notes the specific
differences in State involvement in
removals from remedial actions. Except
as provided in { 300.525, the rest of
{ 300.515 on pre-remedial and remedial
response is not generally applicable to
EPA-lead removals.
Although EPA and States actively
coordinate during removal actions to
assure timely and efficient response,
most Fund-financed removal actions are
EPA-lead. However, in some
circumstances States are required to
share in the cost of the removal (See
S 300.510(b)(l).) Proposed Subpart P
encourages States to undertake Fund-
financed removal actions via
cooperative agreements, if EPA
determines that it will result in the most
efficient method of threat mitigation. In
either situation. States are encouraged
to assume responsibility for post-
removal site control activities, if
required (see f 300.415(1)).
EPA will encourage State-lead
removals to the extent practicable. The
statutory limits for removals, now •
$2,000,000 and twelve months, will apply
to State-lead, Fund-financed removal
actions unless the second statutory
exemption (consistency with the
remedial action to be taken) is invoked.
The first exemption (continuing
emergency) for extending the removal
action beyond the statutory limitation
will generally not be applicable to State-
lead removals because of their less
critical nature. (See f 300.415.)
15. Consultation with States regarding
removal actions (§ 3OO.525(e)). This
paragraph contains a general statement
that EPA will consult with the State
when conducting removal actions within
that State.
B. Points of Clarification '
1. Applicability of State involvement
requirements to political subdivisions,
Subpart F does not address EPA
interaction with political subdivisions of
a Stale, although a political subdivision
may take the lead for certain response
actions via a cooperative agreement if
the State provides the required
assurances at the time of remedial
action. EPA. the State, and the political
subdivision are required to establish a
written agreement that sets forth roles
and responsibilities of each party. The
cooperative agreement will specify the
requirements associated with a political
subdivision lead. Such Fund-financed
actions must comply with CERCLA and
theNCP.
2. Applicability of Subpart P to
Federal facility responses. As provided
in CERCLA section 120(0- the
substantive requirements of Subpart P
do apply to Federal facility responses,
and the Federal facility must meet the
requirements for involving the States in
remedial response actions taken at
Federal facilities. EPA intends to further
address State involvement at Federal
facilities in the proposed Subpart K to
be drafted. Note that CERCLA section
120(g) does not allow the transfer of the
EPA's authority to the States.
3. State requirements or siting laws.
CERCLA section 121(d)(2)(C)
specifically limits the applicability of
State requirements or siting laws for
hazardous waste facilities that could
result in a State wide ban on land
disposal. In order to be treated as
potential ARARs. such laws must
i. Be of general applicability and be
formally adopted;
ii. Be based only on technical (e.g..
bydrogeologic) or other relevant
considerations; and
iii. Not be intended to preclude land
disposal for reasons other than
protection of health or the environment.
In addition, the State must arrange
and pay for additional costs for out-of-
State or other disposal made necessary
by such a law. EPA believes that the
factors used in evaluating such criteria
should include the nature of the
technical considerations and the history
of health and environmental legislation
in the State.
Subpaft G—Trustees for Natural
Resources
Section 107(a)(4KC) of CERCLA
imposes responsible party liability for
the injury, destruction, or loss of a
natural resource, including the costs of a
natural resources damage assessment
Section 107(f)(i) of CERCLA provides
-------
51460 Federal Register / Vol. 53. No. 245 / Wednesday. December 21. 1988 / Proposed Rules
that only properly designated Federal
trustees, authorized representatives of
an affected State, or Indian Tribes can
pursue a section 107(a)(4)(C) action.
Subpart G designates Federal trustees
to act on behalf of the President in
assessing damages to natural resources
from discharges of oil or releases of
hazardous substances, pollutants, or
contaminants, and outlines the
responsibilities of trustees under the
NCR Although the CERCLA
amendments necessitated few changes
to Subpart G, the major objective for
this proposed revision is to make the
subpart more readable and
understandable to those who are not
familiar with trustee agency authorities.
Because the primary purpose of this
subpart is to designate trustees, the
proposed changes reflect an overriding
concern that trustee jurisdictions be
described as accurately as possible.
Section 301 (c) of CERCLA requires the
promulgation of rules for the assessment
of damages for injury to, destruction of,
or loss of natural resources resulting
from a discharge of oil or a release of a
hazardous substance under CERCLA
and the Clean Water Act The
responsibility to promulgate these
regulations has been delegated to the
Department of the Interior (DOI). The
use of the procedures described in DOI's
rule, 43 CFR Part 11, is optional.
However, the results of an assessment
performed in accordance with the DOI
rule by a Federal or State trustee, or
Indian Tribe, if reviewed by a Federal or
State trustee, shall be given the statue of
a rebuttable presumption in an action to
recover damages for injuries to.
destruction of. or loss of natural
resources. Whether or not the
procedures in 43 CFR Part 11 are
followed, a trustee should proceed in
conformance with the responsibilities
described in this subpart.
A. Major Revisions
1. Specific designation of trustees and
consultation (§3O0.60O). In the proposed
revisions, EPA has attempted to clarify
and define as accurately as possible the
Federal agencies responsible for specific
resources. EPA has attempted to do this
by delineating in the paragraph
headings the Federal agency or type of
Federal agency responsible for natural
resources. In addition. EPA has changed
the narrative to describe in more detail
the resources that agencies manage and
to give examples of the types of
resources that might be under an
agency's trusteeship.
It should be noted that although the
Departments of Commerce and the
Interior are listed under separate
headings, the division of authorities
between them, and that between them
and other agencies, is complex. For this
reason, parallel construction of the
sections describing trustee designations
is not possible. The proposed revisions
use the terms of the authorities under
which each trustee operates.
A related change is made to
§ 300.600(b)(l). which designates the
Secretary of Commerce as a trustee. The
revision explains that the Secretary will
act with the concurrence of other
Federal agencies when the resources or
authorities of other agencies are.
involved. This situation may arise
because the trusteeship of the Secretary
of Commerce is sometimes described
geographically, i.e.. within certain
marine and coastal areas. However,
specific natural resources hi these same
areas may also be managed or protected
under statutes administered by other
Federal agencies. Thus, the regulation
states that the Secretary of Commerce
will act with the concurrence of other
Federal agencies when any of their
resources are affected. It is appropriate
that Federal trustees seek concurrence
when they plan to act with respect to
resources under the management or
protection of other agencies. The
concurrence need not be lengthy or
cumbersome. A similar provision is not
included in the regulatory section
describing the Secretary of the Interior's
trusteeship because DOI's authority is
not defined in terms of particular
geographical areas. Rather. Federal
statutes administered by the Secretary
of the Interior describe the specific
natural resources to be managed or
protected by DOI.
Another major change involves the
description of certain natural resources.
Section 300.72 of the current NCP
designates the Secretary of Commerce
as trustee for "waters of the contiguous
zone and parts of the high seas * * * ".
In the proposed revision, the following
are included as under the Secretary's
jurisdiction: "waters of the contiguous
zone, the exclusive economic zone, and
the outer continental shelf * * *". The
contiguous zone includes the area from
three to twelve miles from the shore.
The exclusive economic zone, defined
by Proclamation 5030 (March 10,1983)
and subsequently incorporated in the
Magnuson Fishery Conservation and
Management Act. is the area up to two
hundred miles from the shore. The outer
continental shelf extends beyond .two
hundred miles in some places.
The current NCP's exclusions of lands
or resources in or under U.S. waters
(§ 300.72 (a] and (b)) are proposed to be
deleted. Federal trusteeship derives
from authority to manage or protect the
affected resources regardless of where
' these resources are located. To the
extent that these resource management
jurisdictions are concurrent or
contiguous, trustees are expected to
work together pursuant to 1300.615.
2. Indian Tribes (§300.610). The
amendments to CERCLA provide that an
Indian Tribe may bring an action for
injury to, destruction of, or loss of
"natural resources belonging to,
managed by, controlled by, or
appertaining to such tribe, or held in
trust for the benefit of such tribe, or
belonging to a member of such tribe if
such resources are subject to a trust
restriction on alienation." In those
instances where the United States acts
on behalf of an Indian Tribe, the
Secretary of the Interior shall function
as the trustee of those natural resources
for which the Indian Tribe would
otherwise act as trustee. The revisions
in { 300.610 reflect these statutory
changes.
Section 300.72(d) of the current .
Subpart G designates the Secretary of
the ulterior as trustee to recover
"(djamages to natural resources
protected by treaty (or other authority
pertaining to Native American tribes) or
located on lands held by the United
States in trust for Native American
communities or individuals." Because
this quoted language is inconsistent with
the language on "natural resources" in
section 107 of CERCLA. as amended, it
has been deleted from the proposed
revisions to Subpart G.
3. Responsibilities of trustees
(§300.615). EPA proposes to reorganize
and make substantive changes to the
existing NCP 5 300.74. The section has
been reorganized by changing the order
in which some information appears (e.g..
discussion of multiple trustees appears
first, instead of last) and by changing
the format in which some information
appears (e.g., listing the responsibilities
of the trustees so that their
responsibilities are easier to read and
understand].
Several new provisions are proposed
to be added to this section to provide
better information on the actions
trustees can take to carry out their
responsibilities. The first addition notes
that trustees may list in each Regional
contingency plan (see S 300.210(6)) the
appropriate contacts to ensure that the
trustees are notified of potential or
actual damage to natural resources. In
addition, the proposed section provides
that when trustees are notified of or
discover possible damage to natural
resources, they may conduct a
preliminary survey of the area to
determine if natural resources under
their trust are affected.
-------
Federal Register / Vol. 53, No. 245 / Wednesday. December 21. 1988 / Proposed Rules 51461
Although a trustee may be responsible
for certain natural resources affected or
potentially affected by a release, it is
important that only one person (i.e., the
lead agency OSC or RPM) manage
activities at the site of a release or
potential release. The OSC/RPM shall
coordinate responsibilities for CERCLA
section 104 assessments, investigations,
and planning, including Federal trustees'
participation in negotiations with PRPs
as provided under CERCLA section
122(j](l). Close communication and
coordination between OSCs/RPMs and
trustees is essential. When there are
multiple trustees, it is recommended that
a lead authorized official be designated
to coordinate all aspects of the
assessment
The trustee actions authorized under
existing NCP § 300.74(b) are proposed to
be changed in the following ways. First,
the trustee is authorized to conduct
CERCLA section 104(e) activities such
as entering and inspecting any relevant •
vessels, facilities, or other properties, or
inspecting or obtaining samples of any
suspected hazardous substances,
pollutants, or contaminants. This
addition to this section reflects
authorities delegated to trustees under
Executive Order 12580. In exercising this
authority, trustees must consult with the
lead agency to ensure efficient response
actions and to avoid duplication of -
effort. Second, a new provision of
CERCLA, section 104(e)(5)(B), provides
that the President (or Federal trustees
by delegation under EO 12580] may
request that the Attorney General
initiate civil actions against PRPs in
order to compel compliance with orders
regarding information gathering and
access.
Finally, in discussing trustee
responsibilities, the'option of pursuing
claims against the Fund has been
deleted. This change reflects the
provision in SARA that prohibits
expenditures from the Fund to pay
trustees' claims for natural resources
damages assessment and restoration of
natural resources. Although section
lll(a)(3) of CERCLA provides for claims
against the Fund for assessment and
restoration of natural resources, section
517 of the Super-fund taxing provisions
in Title V of SARA (Superfund Revenue
Act of 1986), by necessary implication.
eliminates authority to pay for such
assessments or restoration. The
proposed deletion of existing NCP
5 300.74(b)(4) reflects this change in the
law.
Subpart H—Participation by Other
Persons
The focus of this subpart is on those
authorities of CERCLA that allow
persons other than governments to
respond to releases and to recover those
response costs. Although this subpart is
new, it revises and consolidates
provisions from current NCP S 300.25 on
Nongovernment Participation and
J 300.71 on Other Party Responses into
one place in the NCP. Subpart H also
incorporates the new authorities from
CERCLA, as amended, which address
participation by other persons.
A. Major Revisions
1. Reorganization of authorities
regarding participation by other persona
(§ 300.700). EPA proposes to .combine the
closely related concepts of current NCP
55 300.25(d) and 300.71 into a new
subpart to clarify NCP authorities
regarding responses undertaken by
persons other than the Federal
government, States or Indian Tribes. •
Accordingly, $ 300.700(a) states that any
person may undertake a response action
to reduce or eliminate a release of a
' hazardous substance, or pollutant, or
contaminant Section 300.700(b] then
sets forth the following summary of the
mechanisms for the recovery of
response costs:
I CERCLA section 107(o)(4)(B).
Awards of response costs from liable
parties to other persons who undertake
response actions consistent with the .
NCP;
ii. CERCLA section lll(a)(2). Claims"
by other persons against the Fund for
reimbursement for actions consistent
with EPA's prior approval;.
in. CERCLA section lO6(b)(2).
Petitions against the Fund for
reimbursement of costs incurred in
compliance with a section 106(a) order,
issued after October 17,1980, where the
petitioner was not liable for the release,
or if the petitioner was liable, to the
• extent that the action ordered was
arbitrary and capricious, or not
otherwise in accordance with theJaw;
and •• ...
iv. CERCLA section 123. Claims by a
general purpose unit of local government
for reimbursement of temporary
emergency measures costs (see 40 CFR
Part 310).
In order for a person to recover the
costs of bis or her response action from
the Fund or from another person, several
conditions must be met The remainder
of the paragraphs in the new subpart
examine each of the above cost
recovery mechanisms and give a more
in-depth description of the conditions
that must be met
2. Consistency with the NCP for the
purpose of cost recovery. Section
107(a)(4)(B) authorizes parties other than
the Federal government. States, or
Indian Tribes to recover from liable
parties response costs which they
incurred consistent with the NCP.
Proposed NCP 8 300.700(c) revises
current NCP $ 300.71(a)(2) and contains
a list of NCP sections that these other
persons (except for other persons acting
pursuant to orders issued under
CERCLA sections 104 and 106) must
comply with in order for their response
actions to be considered consistent with
the NCP for the purpose of cost recovery
from other third parties. The exception
is made for section 104 and 108 actions
because the administrative order or
consent decree issued under these '.
sections determines the scope and
requirements of the response action.
Today EPA proposes to list the
following NCP sections that EPA
believes other persons must comply -
with in order for their response actions '
to be considered consistent with the
NCP:
L Section 300.150 (on worker health
and safety);
ii. Section 300.160 (on documentation
and cost recovery);
iii. Section 300.400(c)(l), (4), (5). and
(7) (on determining the need for a Fund-
financed action), (e) (on permit
requirements), and (g) (on identification
ofARARs);
iv. Section 300.405(b), (c). and (d) (on
reports of releases to the NRG); • •
v. Section 300.410 (on removal site
evaluation) except (e)(5) and (6) and the
reference to listing releases in CERCUS
in (h), which are uniquely Federal
determinations; '
vi. Section 300.415 (on removal
actions) except (a)(2), (b)(2)(vu). (b)(5),
and (g);
vii. Section 300.420 (on remedial site
evaluation);
viii. Section 300.430 (on PJ/FS and
selection of remedy) except paragraph
(f)(3)(iv)(F) which applies only to Fund-
. financed responses; and
ix. Section 300.435 (on remedial
design/remedial action, operation and
maintenance). '-•«..
These sections have been chosen to -.
assure protection of human health and <
the environment EPA has omitted those
NCP sections that pertain to
organizational matters and other areas
of concern that are unique to the
government
In addition, the regulation specifically
states that other persons must provide
an opportunity for public comment
concerning the selection of the response
action. The regulation identifies the
sections of the proposed NCP regarding
public participation (except
administrative record and information
repository requirements stated therein)
-------
51162 Federal Register / Vol. 53, No. 245 / Wednesday. December 21. 1988 / Proposed Rules
that a response action must comply with
in order to be consistent with the NCP:
a. Section 300.155 (on public
information and community relations);
b. Section 300.415(n) (on community
relations during removal actions);
c. Section 300.430(c) (on community
relations during RI/FS and selection of
remedy) except (5);
d Section 300.430(0(1), (2). and (5) (on
community relations during RI/FS and
•election of remedy); and
e. Section 300.435(c) (on community
relations during RD/RA and operation
and maintenance).
Alternatively, EPA intends that a
response action will be considered
consistent with NCP public participation
requirements if the person taking die
response action complies with
appropriate State or local requirements
which provide a substantially equivalent
opportunity for public involvement in
the choice of remedy.
Further, the regulation suggests that
other persons consider the methods of
remedying releases listed in Appendix D
when selecting the appropriate remedial
action.
The requirements listed above are to
be complied with where pertinent to the
particular response action. By setting
forth these requirements, EPA wishes to
clarify that il is not EPA's objective to
limit the discretion of Federal courts in
determining what constitutes substantial
compliance with the NCP or making
CERCLA cost recover}' awards. The
courts, rather than EPA. will make the
ultimate determination of what response
costs parties may recover pursuant to
CERCLA section 107. Nevertheless, as
the primary agency charged with the
implementation of the statute, EPA has
an interest in this matter, and believes
that its interpretation of the statute
merits judicial deference. EPA believes
it has an obligation, in promulgating the
NCP, to explain when actions by non-
governmental entities are consistent
with the NCP. This obligation is
particularly important given the
widespread confusion and conflicting
judicial interpretations of the issue. See
e.g.. Walls v. Waste Resources Corp.,
761 F.2d 311 (6th Cir. 1985); Pinole Point
Properties, Inc. v. Bethlehem Steel
Corp.. 596 F. Supp. 283 (N.D. Cal. 1984):
Bulk Distribution Centers, Inc. v.
Monsanto Co.. 589 F. Supp. 1437,1442-44
(S.D. Fla. 1984); fanes v. Inmont Corp.,
584 F. Supp. 1425,1430 (S.D. Ohio 1984);
City of Philadelphia v. Stepan Chemical
Co.. 544 F. Sapp. 1135 (E.D. Pa. 1982).
Moreover, EPA intends that providing
a list of requirements to be complied
with in order to be consistent with the
NCP will enhance the probability of a
successful cost recovery action, thus
providing an incentive to other persons
to undertake response actions.
3. Deletion of requirements regarding
response actions that are "not
inconsistent with the NCP. "EPA is
proposing to delete the language of
current NCP S 300.71(a)(2) regarding
which sections of the NCP must be
complied with for governmental
response actions to be "not inconsistent
with the NCP." EPA believes that
CERCLA contemplates a different
standard of proof for actions conducted
by the Federal government, States, or
Indian Tribes. EPA does not propose to
define what actions are "not
inconsistent with the NCP." and would
leave that determination to case-by-case
decisionmaking.
4. Summary of revisions to language
regarding consistency with the NCP. In
today's proposed rule, as well as in the
current NCP, EPA makes it absolutely
clear that no Federal approval of any
kind is required for a cost recovery
action under CERCLA section 107. The
main effect of today's proposed
revisions to current NCP 5 300.7l(a)(2) is
to specify in further detail what other
persons must do in order to act
consistently with the NCP.
5. Deletion of certification authorities
from the NCP. EPA proposes to delete
current NCP } 300.71 (c) regarding
certification of organizations to conduct
site response activities because EPA
believes that preauthorization of each
response claim is a sufficient means of
determining the capability of applicants
to perform proposed response actions.
EPA is also concerned that its
certification of organizations would be
used as a marketing tool, possibly
leading to public misperceptions
regarding the quality of performance by
certified firms. Today's proposed
revisions incorporate that earlier
proposed change.
6. Additional statutory authorities for
the recovery of response costs. Subpart
H refers to new mechanisms for
reimbursement of response costs added
by the 1986 CERCLA amendments:
i. Section 106(b), whereby a person
who has complied with a section 106(a)
enforcement order issued after October
17,1986 may petition the Fund for
reimbursement of response costs if he or
she is not liable for the release, or, if
liable for the release, can subsequently
demonstrate that the order, or a portion
thereof, was arbitrary and capricious, or
not otherwise in accordance with the
law; and
ii. Section 123, which authorizes any
general purpose unit of local government
to petition the Fund for expenses
incurred in providing temporary
emergency measures. Such
reimbursement may not exceed $25,000
for a single response. EPA has issued an
interim final regulation (see 52 FR 39396.
October 21,1987) establishing
procedures for such actions.
B. Other Revisions
1. Clarification and reorganization of
requirements for preauthorization of
responses by other persons. The
language in current NCP 8 300.25(d) has.
for the most part, been retained.
However, the language has been
reorganized, and minor clarifications
and amplifications to existing language
are proposed. Preauthorization is an
established requirement EPA is not
considering revising it and does not
solicit comment on the requirement
itself.
The proposed revisions clarify that in
order to receive EPA's prior approval.
the applicant must demonstrate not only
the technical and other capabilities
necessary to respond safely and
effectively to releases, but also establish
that the action will be consistent with
the NCP as established by this section.
The capability of an applicant to
perform a proposed action will be
evaluated on a case-by-case basis, since
an application for preauthorization must
be filed with respect to each proposed
action. EPA intends to propose a
separate regulation setting forth the
procedures for applying for
preauthorization and for presenting a
claim for reimbursement of response
costs.
2. Impact of new CERCLA section 122
settlement provisions on other party
response. Section 122(b) of CERCLA
adds a provision that allows potentially
responsible parties to be reimbursed
through "mixed funding" agreements.
Mixed funding agreements permit EPA
to reimburse parties to settlement
agreements for certain response actions
that the parties have agreed to perform
and that EPA has agreed to finance in
part EPA proposes to add a new
paragraph to the section on claims to
state that a claim by a party determined
by EPA to be potentially liable under
section 107 of CERCLA. including a
State or a political subdivision thereof,
will receive EPA's prior approval to
submit claims only in accordance with
an order issued pursuant to section 106
of CERCLA, or a settlement with the
Federal government in accordance with
section 122 of CERCLA. Consequently, a
State or its political subdivision can
submit claims under these sections in
the context of enforcement actions
taken by EPA. Where such persons are
not determined by EPA to be potentially
liable under section 107 of CERCLA. but
-------
Federal Register / Vol. 53. No. 245 / Wednesday, December 21, 1988 / Proposed Rules 51463
act in their capacity as a unit of
government, they may receive funds
from the Fund for section 104 response
action as authorized by section lll(a)(l)
of CERCLA. A political subdivision of a
State is treated as a State for the
purpose of section 107.
3. Grants for technical assistance.
Current NCP 5 300.25(d) refers to
cooperative agreements and contracts.
Amendments to CERCLA section 111
authorize technical assistance grants
pursuant to section 117(e). Cooperative
agreements and grants, when taken •
together, are generally referred to as
"assistance agreements." EPA is ....
proposing to revise 5 300.25(d) to refer to
"procurement contracts or assistance
agreements." . -.... .
Subpart I—Administrative Record for '
Selection of Response Action
Proposed Subpart I of the NCP is
entirely new. It implements CERCLA
requirements concerning the
establishment of an administrative
record. Section 113(k)(l) of CERCLA
requires the establishment of an
administrative record that contains the
documents that form the basis for the
selection of a CERCLA response action.
In addition, section 113{k)(2) requires
the promulgation of regulations
establishing procedures for the
participation of interested persons in the
development of the administrative
record.
EPA is proposing regulations
regarding the administrative record that '-
include procedures for public
participation. This will ensure the
development of a complete and accurate
record by all parties responsible for
compiling records, because procedures
for establishing and maintaining the
record are closely related to the
procedures governing public
participation.
Because this subpart is entirely new,
the following discussion is not divided
into major revisions, other revisions,
and points of clarification. Instead, it
explains the purpose of the
administrative record and then generally
provides a paragraph by paragraph
explanation of the proposed regulations.
A. Background and Purpose
Under CERCLA, the administrative
record established under section 113(k)
serves two primary purposes. First.
under section 113(j), judicial review of
any issue concerning the adequacy of a
response action is limited to the
administrative record. Second, section
113(k) requires that the administrative
record be used as a vehicle for public
participation in the selection of the
response action, ensuring that EPA has
considered all relevant factors in
•electing the response and that
interested parties have been given
adequate notice and an opportunity to
participate in that selection.
1. Judicial review. Section 1130)(1) of
CERCLA provides that judicial review of
any issues concerning die adequacy of
any response action shall be limited to
the administrative record. Section
113(j)(2) provides that the court shall
uphold the selection of a response
action unless the objecting party can
demonstrate, based on the
administrative record, that the decision
was arbitrary and capricious, or
otherwise not in accordance with law.
These statutory provisions codify well-
established principles of administrative
law concerning the applicable standard
and scope of review for informal agency
actions. The legislative history of
section 113 demonstrates that it is
intended to clarify and confirm the
applicability of these administrative law
principles to CERCLA response
selection. (See S. Rep. 99-11,99th Cong..
1st Sess. 57 (1985); KR. Rep. 99-253.99th
Cong., 1st Sess. 82 (1985); Cong. Rec. H
11084 (daily ed. Dec. 5,1985)).
Limiting judicial review of the
selection of a response action to the
administrative record ensures that
litigation on the selection of the
response action focuses on the selection
in light of the information available to
the decisiomnaker at the time the
response was selected. Judicial review
limited to the administrative record
contributes to the overwhelming public
interest in effecting the expeditious
cleanup of potentially health- and
environment-threatening hazardous
waste sites and ensures that all
interested persons may participate
equally in the administrative
decisionmaking process. The principal
effect of limiting judicial review to the
administrative record is that courts will
not engage in de novo fact-finding
during their review of a challenge to the
decision to select a certain response.
Thus, record review of response
selection decisions would mean that
persons challenging the response
decision could not depose, examine or
cross-examine on-scene coordinators
(OSCs), remedial project managers
(RPMs), government consultants, or
decisionmakers with respect to die
response decision or engage in any other
discovery activities. Also, the imposition
of long and costly trial-type procedures
in section 108 actions would greatly
delay response.
2. Public participation. Sections
113(k)(2) (A) and (B) of CERCLA require
the promulgation of regulations
establishing procedures for the
participation of interested persons in the
development of the administrative
record. Participation by interested
persons, where appropriate, will ensure
that EPA has considered the concerns of
the public, including potentially
responsible parties (PRPs), in selecting
the response action. In addition, for
purposes of administrative and judicial
review, the administrative record can
contain documents that reflect the views
of the public, including PRPs and those
not party to any Judicial proceeding,
concerning the selection of a response
action. • •
For remedial actions, section
113(k)(2)(B) of CERCLA establishes the
following minimum procedures for
public participation:
L Notice to potentially affected
persons and the public, accompanied by
a brief analysis of the plan and
alternative plans that were considered;
ii. A reasonable opportunity to
comment and provide information
regarding the plan;
iii. An opportunity for a public
meeting in the affected area, in
accordance with section 117(a)(2) of
CERCLA;
iv. A response to each of the
significant comments, criticisms, and
new data submitted in written or oral
presentations; and
v. A statement of the basis and
purpose of the selected action.
These requirements are virtually the
same as those required by section 117 of
CERCLA concerning public participation
for remedial actions. These public
participation requirements are proposed
for codification today in § 300.430 of
Subpart E of the NCP. Subpart I expands
on the public participation requirements
of Subpart E.
Because the nature of removal actions
often involves the need for prompt- • -
action, the procedures proposed today
for public participation in removal
actions are quite different from those for
remedial actions. Removal authority - .
allows the lead agency to move quickly
in situations where prompt lead agency
action is warranted. Section 113(k)(2)(A)
of CERCLA requires that there be
"appropriate" participation of interested
persons in the development of the
administrative record supporting
removal actions. The legislative history
of this section states that these public
participation requirements "are not
intended to hamper emergency removal
actions. Nonetheless, the Administrator
is directed to develop appropriate
participation procedures for removal
actions and should follow these
requirements to the maximum extent
practicable." (H.R. Rep. 09-253.99th
-------
51464
Federal Register / Vol. 53. No. 245 / Wednesday, December 21. 1988 / Proposed Rules
Cong, 1st Sess.. 1985, at 82). Public
participation requirements for removal
actions are addressed in § 300.415(n) of
today's proposed regulations. Additional
public participation procedures in the
development of an administrative record
for a removal action are addressed in
{ 300.820. The public participation
procedures are designed to ensure an
appropriate level of public involvement
for removal actions without causing
unnecessary delay. In general, where
there is time to solicit public comment
before the selection of a removal action.
the lead agency will do so. Public
participation procedures for removal
actions are described in greater detail
below.
B. Current Record Requirements
Section 113(k)(2}(C) of CERCLA states
that until regulations on the
participation of interested persons in the
development of the administrative
record are promulgated, the
administrative record shall consist of all
items developed and received pursuant
to current procedures for selection of the
response action, including procedures
for the participation of interested parties
and the public. Current procedures on
public participation in the selection of
response actions include an extensive
community relations program through
which interested persons have notice of
information through notices in local
newspapers, community relations
mailings, public meetings, and letters,
including notice letters to potentially
responsible parties. An adequate record
should be compiled and maintained
through use of current procedures for
sites where the remedial investigation or
removal action has already begun prior
to promulgation of these regulations.
These proposed administrative record
requirements build upon and formalize
existing procedures for the exchange of
information on the selection of a
response action.
The cutoff date for the applicability of
these regulations is based on when the
administrative record file must first be
made available under these regulations.
The lead agency may not be able to fully
comply with regulations concerning
compilation of the record which are
promulgated after a record has already
been compiled and made available at or
near a site. Thus, at such sites, the lead
agency will comply with these
regulations to the extent practicable.
C. Summary of New Subpart I
1. Establishment of an administrative
record (§ 3O0.8OO). As explained earlier,
section 113(k] requires the establishment
of an administrative record consisting of
the documents that form the basis for
the selection of a response action. An
administrative record is the compilation
of documents considered or relied on by
the agency in making a decision: in this
case, the selection of the response
action for the site. Proposed 5 300.800(a)
codifies this statutory provision and
provides that such establishment is the
responsibility of the lead agency. The
regulation also uses the term
"administrative record file" to refer to
documents which the lead agency
anticipates will be included in the
administrative record when the decision
on response action selection is made.
The administrative record file contains a
body of documents which increases as
documents are added and does not
necessarily constitute the final
administrative record
The term "documents," also used in
the preamble and proposed regulations,
is intended to be very broad. It includes
writings, drawings, graphs, charts,
photographs, and data compilations
from which information can be obtained.
It does not include physical samples.
Section 300.800(b) addresses
administrative records for Federal
facilities. Executive Order 12580
authorizes Federal agencies to establish
the administrative record for selection
of response actions for Federal facilities
under their jurisdiction, custody, or
control. EPA, however, is required to
promulgate regulations establishing
procedures for the participation of
interested parties in the development of
the record. Federal agencies must
compile and maintain records as
required by this subpart, as finally
promulgated. Section 300.800(b) also
clarifies that although the Federal
agency is responsible for compiling and
maintaining the administrative record,
EPA may furnish documents which the
Federal agency is to place in the
administrative record file to ensure that
the administrative record includes all
documents which form the basis for the
selection of the response action.
Section 300.800(b)(2) provides that
when EPA (or the United States Coast
Guard (USCG)) is the lead agency at a
Federal facility. EPA (or USCG) shall
compile and maintain the record.
Executive Order 12580 delineates cases
in which EPA (or USCG) is the lead
agency. EPA is the lead agency, for
example, at Federal facilities conducting
on-site emergency removal actions
{other than at DOD or DOE Facilities).
The USCG can be the lead agency at
Federal facilities with on-site emergency
removal actions in the coastal zone.
Section 300.800(b)(3) requires that
when EPA is involved in the selection of
a response action at a Federal facility on
the NPL, the Federal agency shall
provide EPA with a copy of the index of
documents included in the
administrative record file, the RI/FS
workplan. the Rl/FS released for public
comment, the proposed plan, any public
comments received on the RI/FS and
proposed plan, and any other documents
requested by EPA on a case-by-case
basis. EPA is involved in the selection of
a response action when it is jointly
•electing the response action with the
Federal agency, as delineated in
Executive Order 12580. Such joint
selection occurs, for example, for all
remedial actions at Federal facilities on
the NPL In such cases. EPA must be
sufficiently familiar with the contents of
the administrative record to be able to
select jointly the response action.
EPA considered other options for
involvement in the development of the
administrative record for Federal
facilities, such as periodic visits to the
Federal facility to review the
administrative record file as it is
compiled, receipt of the entire contents
of the record file for all NPL sites, and
receipt of the entire contents of the
record file for all response actions at all
Federal facilities. EPA has tentatively
rejected these options as being overly
burdensome. EPA believes that the
preferred option allows enough
flexibility for EPA to ensure that the
response action selected by the Federal
agency adequately accounts for the
concerns of the public, is consistent with
response action selection at non-Federal
facilities, and allows EPA to be
sufficiently involved in the decision
when it is jointly selecting the response
action. EPA solicits comments on
alternative procedures for EPA's
involvement in the development of the
administrative record for Federal
facilities.
Section 300.800(c) specifies that it is
the responsibility of the State to compile
and maintain administrative records at
a State-lead site. Section 300.800(c)
applies only if EPA and the State
formally designate the State as the lead
agency for a site as specified in Subpart
A under the definition of lead agency.
The requirements for State-lead sites are
similar to those for Federal agencies
compiling administrative records for
Federal facilities at which EPA is
involved in the selection of the response
action. EPA is proposing that the State
provide EPA, commencing at the time
the administrative record file is first
made available to the public, with the
index of documents included in the
administrative record file. The issues
relating to this requirement are similar
to those outlined above for Federal
-------
Federal Register / Vol. 53, No. 245 / Wednesday, December 21, 1988 / Proposed Rules 51465
facilities. Additionally, EPA may require
that States place additional documents
in the record file to ensure that the
administrative record includes all
documents which form the basis for the
selection of the response action.
Section 300.800(d) provides that
Sub-part I applies to all response actions
taken under section 104 of CERCLA or
sought, secured, or ordered
administratively or judicially under
section 106 of CERCLA. The statutory
language of section 113(JXl) states that
in any judicial action under this Act,
Judicial review of any issues concerning
the adequacy of any response action
taken or ordered by the President shall
be limited to the administrative record
It has been argued that section 113Q)(1)
of CERCLA does not apply to injunctive
actions taken under section 108, and
that the literal meaning of the phrase
"taken or ordered by the President"
does not include section 106 actions for
injunctive relief unless an
administrative order is issued.
The statutory language of sections
113p) (1) and (2). when read together,
indicates that this narrow interpretation
of section 113(j) is incorrect Together,
sections 1130) (1) and (2) provide that
Judicial review of any response action is
limited to the administrative record. In
addition, section 121 of CERCLA
expressly provides that the President
shall select all remedial actions to be
carried out by EPA under section 104 of
CERCLA or secured under section 106.
No exception for section 108 injunctive
actions was made.
Accordingly, consistent with the
statutory language and congressional
intent EPA is clarifying that limiting
judicial review of response action
selection to the administrative record
applies to all actions taken under
section 104 of CERCLA. or sought
secured, or ordered administratively or
Judicially under section 106 of CERCLA.
Section 30C.800(d) further provides
that Subpart I only applies to those sites
at which the remedial investigation
commences or the action memorandum
is signed after the promulgation of these
regulations. For those sites
grandfathered by paragraph (d).
paragraph (e) provides that the lead
agency shall comply with these
regulations to the extent practicable on
a case-by-case basis. This does not
mean that administrative records are
not required for these sites or that
judicial review of the selection of a
response action at these sites will not be
limited to the administrative record.
Rather, as explained earlier, this
provision simply recognizes that there
will be ongoing actions at which the
final regulations cannot be complied
with in full. The public participation
procedures for remedial actions outlined
in section 113(k)(2){B) and 117 of the
statute and discussed earlier in this
preamble, however, are applicable to
any Record of Decision (ROD] signed
after October 17.1986, the date that in
general the amendments to CERCLA
took effect ' '
Subpart I does not apply to third party
cleanups, i.e., those not undertaken
pursuant to sections 104,106, or 111 of
CERCLA. Under this proposal such
cleanups need not comply with these *
administrative record requirements.
Section 3OOBOO(dJ does not require that ,
State actions for cost recovery under
section 107 of CERCLA. where the State
used only its own authorities to conduct
a response action, comply with this
subpart If a State is seeking to recover
costs from responsible parties under
section 107 of CERCLA, EPA may wish
to require that States comply with this
subpart to expedite judicial proceedings
in such circumstances. EPA solicits
comments on whether these regulations
should apply to those situations.
2. Location of the administrative
record (§ 300.805). Section 113(k)(l) of
CERCLA requires that "the
administrative record shall be available
to the public at or near the facility at
issue. The President also may place
duplicates of the administrative record
at any other location." EPA proposes to
require that the administrative record
file generally be located in two places.
First as provided by the statute, the
record file shall be located at or near the
facility at issue. (To conform to the
terminology of the rest of the NCP. the
term "site" will be used in this subpart
as a substitute for the term "facility"
used in the statute.)
In addition, EPA proposes that the
administrative record file be located at
an office of the lead agency or other
central location. Examples of central
locations include an EPA Regional
Office, an EPA field office, a Federal
agency equivalent to an EPA Regional
office, or, for State lead sites, a State
environmental agency office. EPA •
considered making the central location
requirement optional, but concluded that
the lead agency has more control over
the maintenance of the necessary
documents at the central location than
at or near the site. As described below,
the file at or near the site should contain
a copy of most of the documents
included in the administrative record
file at the central location.
Under i 300.605, the file at the central
location must contain all documents
which are part of the administrative
record except certain verified sampling
data, quality control and quality
assurance documents, chain of custody
forms, and publicly available technical
literature. These documents, which are
part of the record, may be located
elsewhere, as provided in S 300.805 (a) .
and (c), and explained further below.
The administrative record file at or
near the site at issue should be located
at one of the information repositories
which may already exist for community
relations purposes. The information
respository, maintained by the
community relations coordinator, may .-
contain additional information which is;
of interest to the public, but which does
not form a basis for the response action
decision. Examples of such information
include newspaper articles, press
releases, and information concerning the
NPL listing. If there is no existing
community relations information
repository, or the information repository
is inadequate for maintaining the
administrative record file, the file may
be located in some other publicly
accessible place. EPA is considering and
seeks comments on limiting the :
information which much be available at
or near the site in situations where the
record is too voluminous for the publicly
accessible location. Typically, local
libraries, town halls, or public schools
are used as publicly accessible
locations.
EPA may make the administrative
record file available to the public in
microform. EPA may microform-copy
documents that form the basis for the
selection of a CERCLA response action
in the regular course of business. The
microform copying will be done in
accordance with technical regulations
concerning micrographics of Federal
Government records and EPA records
management procedures.
EPA proposes that some information
need not be physically located at or
near the site because of the substantial
administrative burden this would pose.
The information not available at or near
the site would, however, always be
available to the public at another
location. For example, § 300.605(a)
provides that certain types of technical
information may be located in the
central location or elsewhere, such as a
contract laboratory or field office. The
index to the administrative record file,
which will be included in the
administrative record file both at or near
the site and at the central location, most
indicate where the information is
located and how it can be obtained for
inspection. Thus, such information
continues to be easily accessible to
interested persons. Examples of such
information include validated sampling
data, which are normally summarized in
-------
51466 Federal Register / Vol. 53. No. 245 / Wednesday, December 21, 1988 / Proposed Rules
data summary sheets and are quite
voluminous, documentation of quality
assurance and quality control which is
normally summarized in the remedial
investigation/feasibility study (RI/FS),
and chain of custody forms. These types
of documents may be stored in the EPA
Regional office, contract laboratory
office that conducted the testing. State
environmental agency office, or
elsewhere, as appropriate.
Section 300.B05(b) provides that
guidance documents not generated for
(he particular site for which an
administrative record is being compiled
may be maintained in a library at the
central location. The guidance
documents need not be in each site-
specific administrative record file at the
central location or at or near the site at
issue. EPA anticipates that each EPA
Regional office will maintain a central
library of guidance documents which
are frequently cited as a basis for
selecting a response action. This
approach eliminates the need for
reproducing copies of the same
document for each site record. The term
guidance document includes issue-
specific policy memoranda as well as
formal guidance documents. Examples
of such guidance documents and issue-
specific memoranda include the RI/FS
guidance document, guidance on risk/
exposure assessments, guidance on
applicable or relevant and appropriate
requirements, memoranda on maximum
contaminant levels, and guidance on
testing for specific contaminants.
Guidance documents and memoranda
which are generated for a particular site
must be placed in the site-specific
administrative record file. (For example
a document on dioxin contamination at
XYZ site must be placed in the XYZ site-
specific administrative record file. If it is
also used as a guidance document on
the cleanup of dioxin at other sites, it
may be located only in the central
library rather than physically in the
administrative record file at those other
sites.) The central library of guidance
documents will be available to the
public.
EPA proposes in { 300.805(c) that
publicly available technical literature
not generated for a site at issue need cot
be located at or near the lite at issue, in
the central library of guidance
documents or In the site-specific
administrative record file, provided that
it is listed in the Index to the
administrative record. Copyright laws
may bar the copying of these materials
without specific approvals. EPA
believes that expending Superfund
resources on obtaining copies of
publicly available technical literature is
not appropriate. Examples of publicly
available technical literature include
widely used engineering handbooks on
ground-water monitoring, and articles
from technical journals, which are
readily available in technical libraries.
The index must list these documents
separately and indicate information on
their availability, or, the literature may
already be cited in a document included
in the record
Technical literature, however, which
is not generally available should be
included in the site-specific
administrative record file. Because these
documents are by definition not easily
obtainable, they should not simply be
indexed. They generally will not be used
for many sites; therefore, it is also not
appropriate to include them in the
central library of guidance documents.
The library should be reserved for
documents which are frequently used to
select response actions. Examples of
technical literature not generally
available include articles from technical
journals or unpublished documents not
available through the Library of
Congress or not circulated to technical
libraries.
Section 300.805(d) provides that
documents included in the confidential
portion of the administrative record file
shall be located only in the central
location. Since the public cannot review
the confidential and privileged
information, there is no reason to
require that such information be
maintained at or near the site.
EPA is proposing in 5 300.805(b)(5)
that, for reasons of administrative
feasibility, an administrative record file
for emergency removal actions where
on-site activities cease within 30 days of
initiation need only be available for
public inspection at the central location.
Emergencies are those actions with little
or no lead time and generally of very
short duration—for example, a highway
spill. The benefits of placing the record
file at or near the site are outweighed by
the administrative burden on the
response to such emergencies. Where
feasible, a notice may be placed at the
site explaining that the administrative
record file will be available for pubh'c
inspection at the EPA Regional office (or
other central location).
3. Contents of the administrative
record (§ 300.810). The administrative
record under section 113(k) consists of
documents which form the basis for the
selection of a response action at a
particular site. In determining which
documents form the basis for the
response action, i.e., what constitutes a
complete record, the lead agency shall
include all documents considered by the
dedsionmaker, including those relied
upon by the dedsionmaker in selecting
the response action.'
It should be noted that documents
constituting the administrative record
for selection of a response action are
only a subset of documents that the lead
agency may have compiled with respect
to a particular site. The lead agency will
also have general files consisting of
documents relevant to other aspects of a
site.
Section 300.810 discusses generally
what should be contained in the
administrative record file for response
selection and what should be excluded.
Section 300.810(8) states that it should
contain factual information; data;
analysis of the factual information and
data; guidance documents; technical
literature; site-specific policy
memoranda; documents received,
published, or made available to the
public under { { 300.815 and 300.820 of
this subpart; decision documents; and
enforcement orders. In addition, an
index listing the documents contained in
the administrative record file should be
included at the beginning of the record
file.
The following is a list of documents
which typically, but not in all cases,
should be part of the administrative
record for selection of a remedial or
removal action. (For purposes of this
subpart an RI/FS should be included as
a component of a remedial action
record.) Only documents within each
category which form a basis for
selecting the response action will be
part of the record (i.e., although
correspondence is listed under public
participation, correspondence on
liability issues is not part of the record).
This list is intended to be illustrative,
but not necessarily required at each site
or complete.
L Contents of Remedial Action
Administrative Record.
(a) Factual Information/Data.
Sampling plan.
Validated sampling and analysis data.
Chain of custody forms.
Project plan or program plan (QAPP).
Preliminary assessment report.
Site investigation report
• Inspection reports,
RI/FS final workplan.
Amendments to final RI/FS workplan.
Summary of remedial action
alternatives (used in conjunction with
early spedal notice letters).
Data summary sheets.
RI/FS.
Technical studies.
Factual information submitted by the
public, including PRPs.
-------
Federal Register / Vol. 53, No. 245 / Wednesday. December 21. 1968 / Proposed Roles S1467
Documents lupporting the lead
agency's determination of imminent and
substantial endangerment
(b) Policy and Guidance.
Memoranda on policy decisions (site-
specific and issue-specific).
Guidance documents.
Technical literature.
(c) Public Participation.
Correspondence.
Public notices.
Public comments.
Community relations plan.
Notice letters to PRPs.
Proposed plan.
Transcript of meeting on RI/FS and
proposed plan, and waivers under
section 121 (d) of CERCIA.
Documentation of other public
meetings.
Response to significant comments.
(d) Other Party Information.
ATSDR health assessment
Natural Resource Trustees finding of
fact and final reports.
Documentation of State involvement.
(e) Decision Documents.
Record of Decision, including
responsiveness summary.
(f) Enforcement Documents.
Administrative orders.
Consent decrees.
Affidavits.
Response to notice letters containing
relevant factual information.
(g) Index.
ii. Contents of Removal Action
A c'ministrath-e Record.
(a) Factual Information/Data.
Sampling plan.
Validated sampling and analysis data.
Chain of custody forms.
Preliminary assessment report.
Site investigation report
Inspection reports.
Engineering evaluation/Cost analysis
report (EE/CA).
Technical studies performed for the
tite.
Factual information submitted by the
public, including PRPs.
Documents supporting the lead
agency's determination of imminent and
substantial endangerment
(b) Policy and Guidance.
Memoranda on policy decisions (slte-
specific and issue-specific).
Guidance documents.
Technical literature.
(c) Public Participation.
Correspondence.
Public notices.
Public comments.
Community relations plan.
Notice letters to PRPs.
Documentation of other meetings.
Response to significant comments.
(d) Other Party Information.
ATSDR health assessment
•Natural Resource Trustees finding of
fact and final reports.
Documentation of State involvement
(e) Decision Documents.
EE/CA approval memorandum.
Action memorandum.
(f) Enforcement Documents.
Administrative orders.
Consent decrees.
Affidavits.
Response to notice letters containing
relevant factual information.
{&] Index.
Several documents in the list above
require further explanation. First,
verified sampling data are included on
the list above. Data which have
undergone quality assurance/quality
control end are relied on must be
included in the record Date which have
been rejected as inaccurate, or will
otherwise not be considered or relied
upon, need not be included in the
record.
Second, EPA is proposing hi
, { 300.810(a)(l) that documents
supporting the determination of an
imminent and substantial endangerment
be part of the administrative record.
EPA and other Federal agencies have
the discretion to conduct assessments to
determine the extent of an imminent and
substantial endangerment to the public
health or welfare or the environment
due to an actual or threatened release of
a hazardous substance. If EPA chooses
to exercise its discretion to conduct such
an assessment the assessment shall be
included in the record. A determination
of an imminent and substantial
endangerment is based on factual
information which forms a basis for the
selection of the response action. As
such, when a determination of an
imminent and substantial endangerment
is made, it is part of the record of the
selection of a response action. EPA
believes that judicial review of the
determination that there is an imminent
and substantial endangerment in actions
under section 106 to enforce an order or
for injunctive relief, therefore, is limited
to the administrative record.
Third, for a remedial action record,
the list includes a summary of remedial
action alternatives. This summary will
only be generated in conjunction with
•pedal notice letter* EPA may issue to
PRPs pursuant to section 122(e) of
CERCIA if the notice letter is issued
prior to the availability of an RI/FS
report and it appears necessary to
inform Interested persons of the lead
agency's direction on remedial
alternatives. In this context a summary
of remedial action alternatives would be
generated if necessary to enable PRPs to
make an informed good faith offer to
undertake the remedial design or
remedial action. The summary of
remedial action alternatives should be
included in the administrative record
file to that the public and not just the
PRPs have the information.
Finally, EPA is proposing that notice
letters to PRPs be included in the
administrative record. EPA has recently
issued guidance on the notice letters
issued under section 122(e) of CERCLA,
53 FR 5298 (February 23,1088). PRPs that
receive notice letters are expected to
become familiar with CERCLA, if they
have not already done to. In light of
notice letters and general principles of
administrative law, PRPs are on notice
that an administrative record file will
be, or is, available for public inspection.
Section 300.8lO(b) addresses
document* which generally will not be
included in the administrative record.
The type of documents referenced in
{ 300.810(b) are those which by
definition are not appropriate for
inclusion in the administrative record
because they do not form a basis for the
selection of the response action. These
documents are specified in the
regulation for purposes of clarity.
Draft documents, internal memoranda,
and day-to-day notes of staff generally
will not be included in the
administrative record. Examples of draft
documents that will be included in the
administrative record are those that
were considered or relied on in response
action selection and never superseded
by a final document and those that
contain material fact* which do not
appear in any other document included
in the administrative record file. The
general rule, however, is that only final
documents will be included in the
administrative record.
Examples of internal memoranda and
day-to-day notes of staff which are not
appropriate for inclusion in the
administrative record are documents
that express opinions or
recommendations of staff to other staff
or management or internal pre-
decisional documents that evaluate
alternative viewpoints.
Section 30O810(c) addresses
privileged documents. Examples of
privileged documents include, but are
not limited to: documents subject to
attorney-client privilege and attorney
work product exclusion, documents
subject to deliberative process privilege,
and enforcement sensitive information.
Common law and other privileges may
be asserted.
An assertion of confidentiality- of
information does not necessarily
eliminate the need to make such
information part of the administrative
record. If confidential information which
-------
51468 Federal Register / Vol. S3. No. 245 / Wednesday, December 21, 1988 / Proposed Rules
forms a basis for the selection of a
response action is not included in any
other document in the administrative
record, that information must be part of
the administrative record. Section
300.810(d) requires that the information,
to the extent feasible, must be
summarized in such a manner as to
make it disclosable to the public and
placed in the administrative record file.
If it is not feasible to summarize the
information in a releasable manner, e.g.,
when the privilege applies directly to the
information which forms a basis for the
(election of the response action, such as
confidential business information, the
documents must be maintained by the
lead agency in a confidential portion of
the administrative record file. (These
documents may be reviewed in camera
in any subsequent judicial proceeding.)
The index to the administrative record
must list the confidential or privileged
document even though the document
will not be available for public
inspection. Whether or not the
information can be summarized in a
releasable manner, the actual document
containing confidential or privileged
material must be included in the
confidential portion of the
administrative record file. In light of the
nature of the information in the Rl/FS
and underlying documents and the fact
that contamination levels are generally
not privileged, this is not expected to
occur frequently.
It should be noted that section
104(e)(7) of CERCLA governs the extent
to which information may be claimed
confidential by persons required to
provide information under that section.
Where confidential business
information is claimed, EPA will
proceed according to regulations set
forth in 40 CFR Part 2.
4. Administrative record for a
remedial action (§300.815). Section
300.815(a) provides that the documents
included in the administrative record
file for a remedial action shall be
available for public inspection at the
commencement of the remedial
investigation phase. Generally, the
commencement of the remedial
investigation phase occurs when the
final RI/FS work plan is available. The
regulations do not specify when the
remedial investigation phase
commences because this may be a site-
specific determination. EPA solicits
comments on whether the regulation
should specify in greater detail when the
lead agency must make the
administrative record file for a remedial
action available for public inspection.
The file at that time should contain the
documents which will form a basis for
the selection of the response action
generated or received through the date
when the administrative record file is
first made available. Documents
generally available when the RI/FS
work plan if approved include a
preliminary assessment report, site
inspection report, the RI/FS work plan,
underlying inspection reports, and the
community relations plan. From that
time until the ROD is signed (except as
provided in f 300.625, described below)
documents which form the basis for the
selection of the remedial action, shall be
added as generated or received to the
administrative record file.
The lead agency may establish a
system allowing for periodic review of
documents where there are questions as
to whether the documents must be
included in the administrative record
file. Quarterly or monthly updates of the
administrative record file may be
appropriate in given situations and
allows the lead agency to analyze data
and organize it in a manner that will be
meaningful to the public. In addition, it
may save the lead agency the time
involved in making daily or weekly
determinations on whether questionable
documents should be added to the
administrative record file. If there is no
question that a document belongs in the
administrative record file, e.g., the RI/FS
report, the document should be placed in
the record file as soon as practicable
after its generation or receipt
EPA proposes in J 300.815(a) that the
lead agency publish a notice of
availability of the administrative record
file. The notice must be published in a
major local newspaper of general
circulation, as is required for the notice
of availability of the proposed plan. (See
S 300.430 of today's proposed rule.) EPA
considered proposing that a notice be
published in the Federal Register for
wider circulation, but rejected such a
requirement as unnecessary. EPA
solicits comments on whether a notice
of availability of the record or of
commencement of the public comment
period should be published in the
Federal Register. EPA also considered
proposing that a separate notification of
known potentially responsible parties
be made. Section 113(k)(2)(D) of
CERCLA provides that the President
shall make reasonable efforts to identify
and notify PRPs as early as possible
before selection of a response action.
EPA will be issuing notice letters to
PRPs under section 122(e) of CERCLA
early in the process in many situations.
Given these early efforts, as well as the
notice in a local newspaper, EPA chose
not to propose a separate notification of
PRPs here.
Section 30O815(b) clarifies that
interested persons may submit
comments for inclusion in the
administrative record file during the
public comment period on the RI/FS and
proposed plan described in $ 300.430(f)
of Subpart E. The lead agency need not,
however, respond to comments that
were submitted prior to the public
comment period on the proposed plan,
although in many instances, the lead
agency will either make appropriate
modifications to the response action or
respond in writing to those early
comments.
A written response to significant
comments will be included in the
administrative record file. The lead
agency need not respond to any
comments received during the public
comment period until the close of the
public comment period. Generally,
responses will be included hi the
responsiveness summary, which is part
of the ROD. In responding to significant
comments, the lead agency need not
respond separately to each comment but
may combine comments by subject or
other category in the response.
The public participation procedures
for a remedial action are set forth in
{ 300.430. Section 300.815(c) of Subpart I
requires that compliance with the
requirements of 5 300.430(0 be
documented for inclusion in the
administrative record file. The
requirements of { 3O0.430(f) include
preparation of a proposed plan;
publication of a notice of availability
and brief analysis of the proposed plan;
placing a copy of the proposed plan in
the information repository, providing an
opportunity for the submission of
written or oral comments on the
proposed plan, RI/FS, and any waivers
to cleanup standards under section
121[d)(4) of CERCLA; providing an
opportunity for a public meeting on the
RI/FS, proposed plan, and waivers to
cleanup standards; preparing a
transcript of public meetings held during
the public comment period; making the
transcript available to the public;
discussing significant changes to the
proposed plan; responding to significant
comments; and soliciting additional
public comment and providing for other
public participation procedures at the
lead agency's discretion prior to the
adoption of the decision where new and
substantial issues have been raised. It
will generally be the practice of the lead
agency that, whenever possible,
documents upon which the selection
decision is based will be included in the
administrative record file as soon as
possible after they are generated or
received, and no later than when the
-------
Federal Register / Vol. 53. No. 245 / Wednesday. December 21. 1986 / Proposed Rules 51469
decision document It signed. This is
intended to encourage maximum public
participation in the development of the
record.
Documents generated or received
after the selection is made do not
provide a basis for the decision and thus
generally are not part of the
administrative record, except as
provided in § 300.825, discussed below.
5. Administrative record for a removal
action (§300.820). Section 300.820
proposes requirements for
administrative records for removal
actions. It is divided into two parts.
Paragraph (a) addresses "non-time-
critical" removal actions, i.e.. those for
which, based on the site evaluation, the
lead agency determines that a removal
action is appropriate and that there is a
planning period of at least six months
before on-site cleanup activities must be
initiated. Paragraph (b) addresses all
other removal actions.
Explanations of regulatory
requirements and related issues which
are the same as those for remedial
actions will not be repeated here. Only
requirements and issues specific to
removal actions will be addressed.
Section 300.820(a)(I) provides that the
administrative record file for a non-time-
critical removal action shall be
available for public inspection when the
engineering evaluation/cost analysis
(EE/CA) report is made available for
public comment. At that time, an
administrative record file shall be
established and made available to the
public and shall contain all documents
relevant to selection of the removal
action generated up through that date.
Documents generally available at that
time include sampling data, a
preliminary assessment report, a site
inspection report the EE/CA approval
memorandum, and the EE/CA. After the
EE/CA report is available and until the
Action Memorandum is signed (except
as provided in j 300.825, discussed
below), documents relevant to the
selection of the removal action shall be
added to the administrative record file
as discussed in the remedial action
section of today's preamble.
The public participation procedures
for non-time-critical removal actions are
set forth in { 300.415(n)(3) of Subpart E
of today's proposed regulations. Section
300.820(a)(3) requires that compliance
with { 300.415(n)(3) (i) through (iii) be
documented for inclusion In the
administrative record. The requirements
of S 300.415(n)(3) (i) through (iii) include
publication of a notice of availability
and brief description of the EE/CA;
making the EE/CA available to the
public; providing a reasonable
opportunity, not less than 30 days, for
submission of comments after the
completion of the EE/CA; and
responding to significant comments.
Section 300.820(b) provides different
procedures for time-critical, including
emergency, removal actions. As
explained earlier, section 113(k)(2)(A) of
CERCLA requires procedures for the
"appropriate" participation of interested
persons in the development of the
administrative record for removal
actions. Appropriate participation is
significantly different in situations
where an action must be taken on short
notice. Where the exigencies of the
situation demand that cleanup be
initiated and often completed within
short timeframes, public comment
periods may delay expeditious response
to the emergency. In view of
Congressional intent that public
participation requirements not hamper
or delay emergency removal actions,
EPA has considered many options for
the appropriate level of public
participation. EPA must balance the
benefits of public involvement in
advance of the selection of a removal
action against the need to proceed
quickly in emergency situations. EPA
believes that the requirements proposed
today strike the correct balance.
EPA has had to consider two
questions in determining the level of
participation for time-critical removals.
First, at what point should the
administrative record file be made
available to the public, and second,
should there be a formal public
comment period on the record? EPA is
proposing in { 300.820(b)(l) that for all
time-critical removals (including
emergencies), the record file should be
made available to the public no later
than 60 days after initiation of on-site
removal activity. EPA is choosing to
make the record available at this time
recognizing that there will be many
situations where immediate action must
be undertaken to remove threats to
human health and the environment
before the administrative record file can
be assembled and placed in a public
docket for inspection. In reviewing
typical removal actions, EPA found that
generally containment or stabilization
(i.e., those activities taken to retard,
reduce, or prevent the spread of a
release or threat of release and
eliminate any Immediate threat) at
removal sites often are completed
within 60 days. Clearly, where
circumstances warrant, EPA should
focus on addressing the threat at a site,
and attend to administrative procedures
later. The proposal meets both EPA's
charge to protect human health and the
environment and the requirement to
provide for appropriate public
participation, by requiring that the
administrative record file be made
available to the public no later than 60
days after initiation of removal
activities. Making the record available
involves: assembling the administrative
record file, identifying a publicly
accessible location for the record file at
or near the site, finding an acceptable
newspaper and placing an
advertisement in it to notify the public,
and preparing for receipt and evaluation
of comments. The proposed requirement
that the file be available "no later than"
60 days does not preclude making the
record file available at an earlier time, if
circumstances allow.
EPA is also proposing in
i 300.820(b)(2) that the lead agency
shall, as appropriate, provide a 30-day
public comment period to begin at the
time die administrative record is made
available to the public. Generally, when
the removal action has not been
completed, a public comment period will
be considered appropriate at the time
the administrative record file is made
available to the public. EPA requests
comment on whether public comment
should be solicited on activities that
have already been completed at the time
the record is made available.
EPA has also considered other public
participation procedures for time-critical
removals. They include:
i. Requiring that the record file be
made available immediately upon
issuing the Action Memorandum, and
delaying the initiation of cleanup until
after public comment is solicited and
responded to. This would allow
maximum public participation in
selection of the removal, but it is not
consistent with the need to provide
prompt response for protection of
human health and the environment at
the site. Such an approach would also
be inconsistent with the legislative
history which states that administrative
procedures established under section
113 should not hamper emergency
removal actions.
ii. Requiring that the record be made
available "promptly" after issuing the
Action Memorandum, and then
soliciting public comment "as time
allows." EPA considered this as a way
of addressing the individual nature of
removals, the different timeframes that
may be involved, and the need to
provide meaningful opportunities for
public comment in cases where time
allows. As discussed earlier, EPA
believes resources should first be
directed toward mitigating threats at a
time-critical removal site and that 60
days of on-site work will allow this.
However, EPA is concerned that a
-------
51470
Federal Register / Vol. 53. No. 245 / Wednesday. December 21. 1988 / Proposed Rules
standard of "prompt" availability is too
vague and would be a source of
controversy at each site. Thus, EPA
believes an objective standard is
preferable. Similarly, while providing for
public comment "as time allows"
permits flexibility in the requirements,
such a rule would require the exercise of
Judgment and would allow disputes over
compliance with this requirement in
individual cases. In addition, as
discussed above, it is rare that there is
sufficient time before beginning a time-
critical action to solicit, consider and
respond to comments.
iii. Delaying the availability of the
record until 120 days after beginning
cleanup and then soliciting public
comment This approach parallels the
community relations requirements
(within 120 days of cleanup for ongoing
responses, a Community Relations Plan
must be prepared and an information
repository must be made available; see
{ 300.415(n)). This would increase the
number of sites at which cleanup has
been completed before the public is
notified. EPA believes that the increased
cleanup time provided under this option
generally does not justify the delay in
public involvement concerning response
selection.
iv. Requiring that the record file be
made available after performing
containment or stabilization at« site
where disposal is needed (over 25
percent of removals do not require
disposal] and delaying disposal until
public comment could be solicited,
evaluated and responded to. This
approach attempts to balance the need
for public comment with the urgency of
the response, limiting the response
selection undertaken without benefit of
public input to those aspects of
removals which must be conducted
swiftly in order to protect public health
end the environment.
There are two major difficulties with
this approach. The first concerns
precisely defining "containment" and
"stabilization" in this context and
providing indicators to mark their
completion. While it is possible, based
on experience, to say that the
containment or stabilization phase of a
removal action is generally completed
within 60 days of initiating work, it is
much more difficult to determine such
completion on a site-specific basis.
The second difficulty with such a rule
is that it fails to take into account
several important factors which may
make such an approach infeasible in
many cases. Specifically, delay of
disposal activities may: (a) Create
additional unnecessary risks to human
health and the environment and (b)
result in needless expenditures of time
and money. Site conditions, weather
conditions, location, public accessibility,
availability of approved disposal
facilities, availability of treatment
facilities and the effect of the delay on
the statutory time and money limitations
on removals are only some of the factors
to be considered before a site-by-site
determination could be made as to
whether or not it was practicable to
solicit public comment
v. Making the record publicly
available as in the proposal (i.e., no later
than 80 days after initiation of cleanup],
but not formally sob'citing any public
comment Given the need for quick
action on time-critical removals, that
they are generally limited in scope, and
few cleanup options are feasible, this
may be an appropriate approach. This
approach, however, would not provide
the public with an opportunity for
meaningful participation where it might
be appropriate in specific removal
situations.
EPA solicits comments on the
proposed and other considered
approaches to public participation on
removal actions.
6. Adding documents after selection of
response action (§300.825). New
documents may be added to the record
file after the decision document is
signed only as provided in $ 300.825.
Documents generated or received after
the decision document (e.g., Action
Memorandum or ROD] is signed
generally will be kept hi a post-decision
document file unless and until a
determination is made that the
documents] should be placed in the
administrative record file, pursuant to
5 300.825.
Section 300.825(a] provides that the
lead agency may add post-decision
documents to the administrative record
file in two situations. The first situation
occurs when the decision document
does not address or reserves a portion
of the response action decision. In such
cases, the lead agency will continue to
add to the administrative record file
documents which form the basis for that
portion of the decision not addressed or
reserved by the decision document
Where appropriate, the lead agency
shall provide public notice that the
administrative record file for this
portion of the decision continues to be
available for public inspection and
comment It should be noted that this
exception applies to RODs that address
an operable unit but leave a portion of
the decision on that operable unit open.
The second situation arises when an
explanation of significant differences
provided for in { 300.435{c] or an
amended decision document is required.
An explanation of significant differences
is issued when, after adoption of a final
remedial action plan, the remedial
action or enforcement action taken, or
the settlement or consent decree entered
into, significantly differs in scope,
performance or cost from the final plan.
The record shall include an explanation
of significant differences and all
documents that form the basis for the
decision to modify the response
•election decision. The lead agency shall
publish a notice of availability of these
documents, as required by section 117 of
CERCLA and as proposed in
I 300.435(c). If, in addition, an amended
decision document is required, the
record shall include the amended
document and all documents that form
the basis for the amended decision. The
public participation procedures outlined
in Subpart E on explanations of
significant differences and amendments
to decision documents shall apply.
Section 300.B25(b) provides that the
lead agency may, in its discretion, hold
additional public comment periods or
extend the time for submission of public
comment after the decision document is
signed, and may limit such comment to
issues for which the lead agency has
requested additional comment This is
intended to allow the lead agency to
solicit additional comment on the
response action whenever it determines
that new information or other
circumstances warrant additional input
Section 300.825(c) governs public
comments received after the close of the
comment period. Under this section, the
lead agency will need to consider such
comments only if they could not have
been submitted during the comment
period and provide critical, new
information relevant to the response
selection which substantially supports
the need to significantly alter ths
response action. EPA is proposing the
standard set out in \ 300.825(c] as
providing the best balance between
EPA's desire to remain open to critical.
new information on the effectiveness of
a selected response and the need to
make final decisions in order to allow
expeditious implementation of the
response action. EPA solicits comment
on this approach.
D. Compliance With This Subpart
As provided in section 113(j)(4) of
CERCLA, in reviewing alleged
procedural errors related to the
administrative record, a court may
disallow costs or damages only if the
errors were so serious and related to
matters of such central relevance to the
action that the action would have been
significantly changed had such errors
not been made.
-------
Federal Register / Vol. 53. No. 245 / Wednesday. December 21. 1988 / Proposed Rules 51471
Subpartf— Use of Dispersants and
Other Chemicals
Proposed Subpart J is very similar to
existing Subpart H and contains only
minor revisions. Section numbers and
references to other sections and
subparts have been changed where
necessary. Technical changes and minor
wording changes to improve clarity have
also been made.
Definitions formerly in this section
have been moved to Subpart A. and a
new definition has been added for
miscellaneous oil spill control agents.
Accordingly, a list of data requirements
for miscellaneous spill control agents is
proposed to be added to § 300.915. The
definition for navigable waters is as
defined in 40 CFR 110.1.
Points of Clarification
Section 300.910 on "Authorization of
use" specifies the conditions under
which the OSC may authorize the use of
dispersants and other chemicals.
Authorization applies to all products on
the NCP Product Schedule.
The language in § 300.910 has been
modified slightly to emphasize the
importance of obtaining concurrence for
the use of dispersants and other
chemicals from the appropriate Regional
Response Team (RRT) State
representative and the DOC/DOI
natural resource trustees "as
appropriate." "As appropriate" refers, in
this case, to the fact that the decision to
use a chemical is highly dependent upon
specific circumstances, locations, and
conditions which must be assessed by
the OSC. The EPA and the State RRT
representatives and DOC/DOI trustees
are in a unique position to understand
local conditions and to collect and
coordinate quickly the necessary local
information which should facilitate a
correct decision. Since the decision
whether to use such chemicals has far-
reaching implications and must be made
in a timely fashion, early involvement of
the EPA and State RRT representatives
and DOC/DOI trustees, as appropriate,
is important As a part of their
contingency planning efforts, RRTs are
further encouraged to make pre-
approval determinations with respect to
the use of certain dispersants or
chemical agents in their area of
geographical responsibility.
Sinking agents are specifically
prohibited for application to oil
discharges.
Appendix C to Part 300—Revised Standard
DUperoant EffectiveaeM and Toxidty TwU
Two technical corrections have been
proposed for Appendix C to Part 300.
First, in the calculations sections, 2.5
and 2.6, the formulas of equations (2),
(3), and (5) for concentration of oil (C*,)
in the sample, dispersant blank
correction (D), and oil blank correction
(OBC) have been corrected. Second, the
units of viscosity (item 3, part DC in
section 4.0) have been changed from
furol seconds to centistokes. Last, the
new 1988 ASTM standards has been
cited for reference to viscosity in
centistokes.
Appendix D to Part 300—Appropriate Action*
and Method* of Remedying Release*
Proposed Appendix D to Part 300
Includes materials from existing
S 300.68(j) on appropriate actions at
remedial sites and existing { 300.70 on
methods for remedying releases. The
appendix describes general approaches
and lists specific techniques but is not
intended to be inclusive of all possible
methods of addressing releases. A lead
agency may respond to types of releases
and employ techniques other than those
that are listed, depending on the
particular circumstances. EPA believes
that the provisions hi existing
§ S 300.68(j) and 300.70 are not
appropriate for inclusion in proposed
Subpart E, which has been structured to
focus on the sequence of response
procedures. Because the materials do
not impose any requirements or
restrictions, they axe appropriate for a
proposed appendix. It is intended that
parties conducting response actions
should consider the information
provided in Appendix D.
ELL Summary of Supporting Analyses
A. Regulatory Impact Analysis of
Proposed Revisions to the NCP
An economic analysis entitled,
"Regulatory Impact Analysis Prepared
hi Support of the Proposed Revisions to
the National Contingency Plan" (R1A)
estimates the incremental costs
associated with the proposed revisions
to the NCP. The RIA is available in the
Superfund Docket, Room LG at the U.S.
Environmental Protection Agency, 401M
Street, SW.. Washington. DC 20460.
The RIA estimates total and
incremental costs to the Fund. States,
Federal agencies, and responsible
parties of implementing the remedial
and removal programs during the period
FY 87 through FY 91. the duration of the
1986 reauthorization of the Superfund
program. The analysis focuses on four
provisions with incremental costs and
benefits attributable directly to the 1986
CERCLA amendments: (1} Selection of
remedy; (2) removals; (3) water
restoration; and (4) publicly owned sites.
The impacts of these four provisions are
attributable directly to the 1986
CERCLA amendments, rather than to
additional requirements imposed by
EPA, because in these areas EPA chose
to retain the flexibility of the statutory
language; the NCP essentially codifies
the statutory requirements. The RIA
estimates the incremental costs of the
four provisions, using the requirements
of CERCLA, as specified in the 1985
NCP, as the baseline. The 1985 NCP is
the proper baseline for the analysis of
changes attributable to the statutory
amendments because the 1985 NCP is
the legal framework that defines
response activities in the absence of the
amendments to CERCLA. The estimated
economic costs attributable to the 1986
CERCLA amendments are summarized
below.
1. Selection of remedy. The new
CERCLA preference for reducing
mobility, toxicity, and volume of
contaminants at a site is assumed to be
a preference for remedies that use
treatment as a principal element All
Superfund Records of Decision (RODs)
signed during the FY 82 to FY 86 period
were reviewed for information on
capital and operation and maintenance
(O&M) costs for treatment-based
remedies and for containment-based
remedies considered for a site. Many
RODs, however, do not include useful
cost data for purposes of this analysis.
RODs that did not develop costs for
both treatment-based remedies and
containment-based remedies, or that
presented cost information only in
present value terms, without a separate
presentation of the capital and O&M
costs, could not be used in the analysis.
The RIA estimates of selection of
remedy costs, therefore, are developed
using cost data from 30 RODs, the
mandatory schedules hi section 116 of
CERCLA for 175 remedial action starts
by the end of FY 89 and an additional
200 starts by FY 91, and the assumptions
that the principal effect of the selection
of remedy provisions in the 1986
CERCLA amendments is to increase
from 32 percent to 80 percent the
frequency of selection of remedies
(including operable units) that use
treatment to address the principal threat
at a site.
The RIA estimates that the total cost
of the selection of remedy provisions in
the 1986 amendments to CERCLA.
during the FY 87 through FY 91 period, is
$9.4 billion: $4.5 billion to the Fund; $0.8
billion to States; $3.2 billion to
responsible parties; and $0.9 billion to
Federal agencies. The 5-year present
value of the estimated incremental cost
of the selection of remedy provisions
over the costs imposed already by the
1985 NCP is $3.6 billion: $1.8 billion to
the Fund; $0.2 billion to States; $1.2
billion to responsible parties; and $0.4
-------
51472
Federal Register / Vol. S3. No. 245 / Wednesday. December 21, 1988 / Proposed Rules
billion to Federal agencies. Changes in
program administrative exists are not
included in these estimates.
A sensitivity analysis is included in
the RIA to determine how the cost
estimates developed in the RIA change
if the most important assumptions used
to derive the estimates are altered. In
addition to varying cost parameters
used in the analysis, the frequency of
use of treatment under the 1986
CERCLA amendments i» varied between
SO percent of sites or operable units
using treatment to 100 percent using
treatment The results of the sensitivity
analysis estimates the total incremental
costs of the selection of remedy
provisions to be between $686 million
and $8 billion, with a best estimate of
$3.6 billion.
The 1986 amendments to CERCLA
require remedial actions to comply with
State applicable or relevant and
appropriate requirements (ARARs) that
are more stringent than Federal ARARs.
To the extent possible, therefore, cost
estimates used in the RIA are for
remedies expected to comply with
Federal ARARs and those State ARARs
more stringent than the Federal
standards. Approximately 50 percent of
the RODs signed in FY 86 had selected
remedies in compliance with more
stringent State ARARs. This represents
the baseline level of compliance with
State ARARs because the FY 86 RODs
were developed in compliance with the
1985 NCP. Ten of the containment-based
remedies and 14 of the treatment-based
remedies whose costs were used in the
RIA are expected to meet more stringent
State ARARs. The RIA includes a brief
comparative analysis of the costs of
these 24 remedies with the costs of the
other remedies used in the RIA where
compliance with State ARARs is not
designated specifically in the ROD. This
analysis indicates that compliance with
more stringent State ARARs may
increase the costs of a remedial action
by about $6.6 million. However, one
should not conclude that an additional
$6.6 million will be incurred to meet
State ARARs for every remedial action
under CERCLA. Many RODs signed
prior to the 1966 CERCLA amendments
already showed evidence of compliance
with State ARARs. Therefore, no
incremental costs associated with such
compliance would result under CERCLA
as amended. In addition, many States do
not have relevant standards more
stringent than Federal standards and.
even if a State has identified a potential
ARAR that is more stringent than a
Federal standard, that State standard
may not be applicable at all sites within
a State.
Assuming SO percent of the Fund-
financed remedial actions expected to
be conducted annually over the FY 87 to
FY 69 period would have chosen
remedies under the provisions of the
1985 NCP in compliance with more
stringent State ARARs and that the
remaining 50 percent of the remedial
actions will incur incremental costs
under CERCLA for compliance with
more stringent State ARARs, the
incremental cost of compliance with the
State ARARs provision in the 1986
CERCLA amendments can be estimated
to be approximately $190 million per
year. These costs are not additive to the
total annual remedy selection costs
shown above because compliance with
State ARARs -was captured to some
extent in the ROD data used to estimate
costs in the RIA.
The results of the ARAR cost analysis
may be overestimated because State
ARARs were not discussed in all RODs.
and it is not clear if the lack of
discussion implies lack of compliance
with State ARARs. or the fact that there
were no more stringent State ARARs
that were relevant to the remedy
selection process. If the latter is the
case, then the number of sites mat will
incur incremental costs to comply with
the State ARAR provisions in the 1986
amendments to CERCLA is overstated.
2. Removals. Incremental costs of the
removal provisions in the 1986 CERCLA
amendments are not quantified in the
RIA due to a paucity of relevant data.
Removal actions are very sensitive to
budgetary fluctuations and regulatory
and policy modifications. The 1986
removal data reflect the budgetary
constraints resulting from the delay in
the reauthorization of the Superfund;
earlier removal data did not reflect the
off-site policy and other recent
regulatory and statutory changes that
affect removal costs, such as the 1984
Hazardous Substances Waste Act
amendments to the Resource
Conservation and Recovery Act that
prohibit land disposal of listed
hazardous wastes. Although the
increase is not quantified in the RIA.
removals undertaken during the period
from FY 67 through FY 91 are expected
to have higher average costs than
removals undertaken in the past
because more extensive removals are
allowable without a waiver and because
treatability studies may be done during
removal actions at NPL sites to promote
consistency with long-term remedial
actions.
3. Water restoration provisions.
Under the 1985 NCP, States held primary
responsibility for financing O&M costs
associated with a remedial action at a
Fund-lead site. During the first fiscal
year after completion of the capital
expenditure at a site, the Fund financed
a maximum of 90 percent of the
operational costs until EPA was assured
that the remedy was operational and
functional In each subsequent year, the
State financed 100 percent of O&M
costs. The 1986 amendments to CERCLA
change this funding relationship for
remedial actions involving treatment to
.restore ground water or surface water.
Long-term costs of treatment of
contaminated ground water or surface
water now are defined to be a
component of the remedial action when
treatment is being used to restore an
aquifer or surface water body. Hence,
this provision transfers financing
responsibilities at Fund-lead sites using
water restoration as part of the selected
remedy from the States to the Fund.
Under the new provision, the Fund
finances 90 percent of the costs of water
restoration for up to ten years; States
finance the remaining 10 percent of
costs during these years. The RIA
estimates that approximately $63 million
in obligations to pay for water
restoration will be transferred from
States to the Fund over the FY 87-01
period as a result of the provisions on
ground-water and surface water
restoration in the 1988 amendments to
CERCLA, Because the provision results
only in transfers of obligations to pay
from States to the Fund, ft does not give
rise to real economic costs or real
economic benefits.
4. Publicly owned sites. The 1986
amendments to CERCLA require that
States pay at least 50 percent of the
costs of Fund-lead remedial actions at
sites operated by a "State or political
subdivision thereof, either directly or
through a contractual relationship."
Prior to the amendments, CERCLA
required States to pay at least 50
percent of costs at Fund-lead sites
owned or operated by a public entity.
The effect of this amendment is to
transfer from States to the Fund costs
incurred at publicly owned sites
operated by a private entity. The RIA
estimates that the publicly owned sites
provision in the 1986 CERCLA
amendments will result in transfers from
the States to the Fund of approximately
$32 million in obligations to pay for
remedial actions over the FY 87-01
period. Because this provision results
only in transfers from States to the Fund
of obligations to pay for certain
activities, it does not give rise to real
economic costs or real economic
benefits.
5. Other provisions analyzed. New
CERCLA section 113(k) requires that an
-------
Federal Register / Voi. 53. No. 245 / Wednesday. December 21. 1988 / Proposed Rules 51473
administrative record of the
decisionmaking process for removal
actions and remedial actions be
established. Subpart I in the proposed
NCP revisions describes the documents
that must be included in the
administrative record and outlines the
procedures to follow in developing the
record. Essentially, the proposed NCP
provision gives detail to the CERCLA
requirement, and, therefore, the costs of
establishing the administrative record
are attributable to CERCLA rather than
to additional requirements imposed by
EPA. The costs of establishing the
record include both the labor hours to
develop and maintain the record and the
capital cost for the storage apace
required to house the record. These
costs are not quantified explicitly in the
RIA. but are estimated to be small.
The RIA also includes an analysis of
other incremental costs and benefits
attributable to the proposed NCP
revisions. These include costs and
benefits where EPA exercised discretion
and imposed specific requirements
beyond those imposed already by the
statute. The following subparts of the
NCP have costs and benefits
attributable to the additional
requirements.
Section 300.420 of the proposed NCP
establishes procedures that a petitioner
must follow in petitioning for a
preliminary assessment The
information required by EPA is minimal
and involves no data gathering or •
analysis on the part of the petitioner. It
is estimated that no more than one hour
would be required to create the petition
instrument In §§ 300.415 and 300.430 of
the proposed NCP, some new provisions
are included for public participation in
removal and remedial activities,
respectively. Some of these new
provisions reflect existing policy, others
incorporate requirements of CERCLA.
The costs of the new community
relations provisions are expected to be
small. The provisions help ensure that
information is disseminated quickly and
efficiently.
The post-screening field investigation
is a new step added to the Rl/FS
process detailed in S 300.430 of the
proposed revisions to the NCP. Although
such field investigations are not a
specific component in the 1985 NCP,
these investigations have been
conducted in the past at sites where
treatment-based remedies were
selected. As a result of CERCLA's
increased emphasis on the use of
treatment-based remedies, more
treatability studies are expected to be
conducted.
The proposed NCP provisions in
{ 300.500 formalize State involvement in
remedial action decisionmaking using a
Superfund Memorandum of Agreement
(SMOA). This provision is expected to
result in a clearer understanding of the
EPA/State relationship and the
responsibilities each party will assume.
The incremental costs attributable to
this provision are expected to be small.
The RIA results indicate that the
proposed rule will have a significant
effect on the economy. However, the
majority of costs associated with the
proposed revisions to the NCP are
attributable to requirements in CERCLA
rather than to additonal requirements
imposed by EPA.
B. Executive Order No. 12281
Proposed regulations must be
classified as major or nonmajor to
satisfy the rulemaking protocol
established by Executive Order (E.O.)
No. 12291. E.O. No. 12291 establishes the
following criteria for a regulation to
qualify as a major rule.
1. An annual effect on the economy of
$100 million or more;
2. A major increase in costs or prices
for consumers, individual industries,
Federal State, or local government
agencies or geographic regions; or
3. Significant adverse effects on
competition, employment investment
productivity, innovation, or on the
ability of United States-based
enterprises to compete with foreign-
based enterprises in domestic or export
markets.
Based on the RIA results summarized
above, the proposed NCP is a major rule
because adoption of today's proposed
rule would have an annual effect on the
economy of $100 million or more. This
regulation has been submitted to the
Office of Management and Budget for
review under Executive Order Nos.
12291 and 12580.
C. Regulatory Flexibility Act
In accordance with the Regulatory
Flexibility Act of 1980, agencies must
evaluate the effects of a proposed
regulation on small entities. If the
proposed rule is likely to have a
"significant impact on a substantial
number of small entities," then a
Regulatory Flexibility Analysis must be
performed. EPA certifies that today's
rule will not have a significant impact
on a substantial number of small
entities.
Small businesses generally will be
affected only by the proposed changes
that address selection of remedy. The
cost of a CERCLA response action,
whether using containment-based
remedies or treatment-based remedies.
can be quite large and, in some cases,
may be beyond the financial resources
of a responsible party (RP). Because RPs
can be in different industry sectors and
face different market structures, each
HP's ability to finance Superfund
response actions could be very different.
The analytical framework used in
Chapter 7 of the RIA to estimate the
economic effects of the CERCLA
provisions on typical RPs relies heavily
on publicly available financial
information and makes the conservative
assumption that each RP would be
solely responsible for the entire
remedial action cost The analysis
includes two financial tests performed
on a sample of 15 firms selected
randomly and varying in size. One test
(the net income test) compares average
response costs to the sample firm's net
income or cash flow. The second test (a
modified Beaver ratio) compares the
sample firm's cash flow to its total
liabilities, including response costs. On
the basis of this analysis. EPA has
determined that the proposed revisions
to the NCP will not result in a significant
impact on a substantial number of email
businesses.
Municipalities also could be affected
by the proposed revisions to the
selection of remedy provisions in the
NCP because municipalities can be RPs.
NPL sites owned by municipalities tend
to be municipal wellfields and landfills.
The cleanup of wellfields is undertaken
to restore drinking water to a
community either by pumping and
treating a contaminant plume or building
an alternative water distribution system.
The contaminant plume usually has not
been created by municipality actions;
instead, the plume may have migrated
from a nearby industrial waste site. As a
result the municipality is not likely to
be liable for the costs of response
actions. At municipal landfill sites, or
other landfill sites that have accepted
municipal wastes, the municipality also
is not likely to be liable for 100 percent
of response costs, because other entities
typically have contributed to the site
problem. The range of capita] costs of
cleanups at municipally owned sites
with RODs signed over the FY 82 to FY
86 period is from $304,000 for
construction of an alternative water
supply system to $23.2 million to cap a
90 acre landfill site.
The level of Involvement of small
municipalities in the Superfund program
is not expected to change under the 1986
CERCLA amendments. The sites at
which municipalities are most likely to
be involved are not expected to be
affected greatly by the new CERCLA
selection of remedy provisions. The
costs of cleaning up municipal landfills
in particular are not expected to
-------
51474 Federal Register / Vol. 53, No. 245 / Wednesday, December 21, 1988 / Proposed Rules
increase substantially as a result of the
CERCLA amendments because the
typical size of such sites limits the
implementability of treatment-based
remedies.
D. Paperwork Reduction Act
The information collection
requirements in this proposed rule have
been submitted for approval to the
Office of Management and Budget
(OMB] under the Paperwork Reduction
Act. 44 U.S.C. 3501 et seq. An
Information Collection Request
document has been prepared by EPA
(1CR No. 1463] and a copy may be
obtained from Carl Koch, Information
Policy Branch (PM-223). U.S.
Environmental Protection Agency, 401M
Street, SW., Washington, DC 20460, or
by calling 1-202-382-2739.
Public reporting burden for this
collection of information is estimated to
be a weighted average of 3,350 hours per
respondent, including time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing the collection of information.
Respondent means States and other
entities (excluding the Federal
government) conducting required
activities associated with remedial
actions.
Please send comments regarding the
burden estimate or any other aspect of
this collection of information, including
suggestions for reducing this burden, to
Chief, Information Policy Branch (PM-
223), U.S. Environmental Protection
Agency. 401 M St., SW.. Washington, DC
20460; and to the Office of Information
and Regulatory Affairs, Office of
Management and Budget, Washington,
D.C. 20503, marked "Attention: Desk
Officer for EPA." The final rule will
respond to any OMB or any public
comments on the information collection
requirements contained in this proposal.
List of Subjects in 40 CFR Part 300
Air pollution control, Chemicals,
Hazardous materials, Hazardous
substances. Incorporation by reference,
Intergovernmental relations, Natural
resources, Occupational safety and
health, Oil pollution. Reporting and
recordkeeping requirements, Superfund,
Waste treatment and disposal. Water
pollution control, Water supply.
Dated: November 15,1988.
L0eM. Thomas,
Administrator.
Therefore, it is proposed that 40 CFR
Part 300, be amended as follows:
1. The authority citation for Part 300 is
revised to read as follows:
Authority: 42 U.S.C 8805; 33 U.S.C.
1321(c)(2); E.0.11735, 88 FR 21243: E.0.12580,
62 PR 2923.
2, Subparta A through H of Part 300
are revised, Subparts I and J are added,
and Subpart K.is added and reserved to
read as follows:
PART 300—NATIONAL OIL AND
HAZARDOUS SUBSTANCES
POLLUTION CONTINGENCY PLAN
Subpart A-4ntroductk>n
SK.
300.1 Purpose and objective*.
300.2 Authority and applicability.
300.3 Scope.
300.4 Abbreviations.
300.5 Definitions.
300.6 Use of number and gender.
300.7 Computation of time.
Subpart B Responsibility and Organization
for Response
300.100 Dutie* of President delegated to
Federal agencies.
300.105 General organization concepts.
300.110 National Response Team.
300.115 Regional Response Team*.
300.120 On-scene coordinator* and remedial
project managers: general
responsibilities.
300.125 Notification and communication*.
300.130 Determinations to initiate response
and special condition*.
300.135 Response operations.
300.140 Multi-regional responses.
300.145 Special team* and other assistance
available to OSCs/RPMs.
300.150 Worker health and safety.
300.155 Public information and community
relations.
300.160 Documentation and cost recovery.
300.165 OSC reports.
300.170 Federal agency participation.
300.175 Federal agencies: additional
responsibilities and assistance.
300.180 State and local participation in
response.
300.135 Nongovernmental participation.
Subpart C—Planning and Preparedness
300.200 General.
300.205 Planning and coordination structure.
300.210 Federal contingency plan*.
300.215 Title m local emergency response
plan*.
300.220 Related Title ID Usues.
Subpart D—Operational Response Phases
for OH Removal
300.300 Phase I—Discovery or notification.
300.305 Phase H—Preliminary assessment
and initiation of action.
300.310 Phase m—Containment,
countenneacurei, cleanup, and disposal
300.315 Phase IV—Documentation and co«t
recovery.
300.320 General pattern of re*pon*e.
300.330 Waterfowl conservation.
300.335 Funding.
Subpart E—Hazardous Substance
Responae
300.400 General
900.405 Discovery or notification.
100.410 Removal site evaluation.
300.415 Removal action.
300.420 Remedial site evaluation.
300.425 Establishing remedial priorities.
300.430 Remedial investigation/feasibility
study and selection of remedy.
300.435 Remedial design/remedial action.
operation sad maintenance.
300.440 (Reserved]
Subpart F—State Involvement hi Hazardous
Substance Response
300.500 General
300.505 EPA/State Superfund Memorandum
of Agreement (SMOA).
300.510 State assurances.
300.515 Requirements for State involvement
in remedial and enforcement response.
300.520 State involvement in EPA-lead
enforcement negotiations. .
301X525 State involvement in removal
actions.
Subpart O—Trustees for Natural Resources
300.800 Designation of Federal truateea.
300.605 State trustees.
300.810 Indian Tribes.
300.615 Responsibilities of trustees.
Subpart H—Participation by Other Parsons
300.700 Activities by other persons.
Subpart I—Administrative Record for
Selection of Response Action
300.800 Establishment of an aominiatrative
record.
300.805 Location of the administrative
record.
300.810 Contents of the administrative
record.
300.815 Administrative record for a
remedial action.
300.820 Administrative record for a removal
action.
300.825 Record requirement* after the
decision document it ligned.
Subpart J—Use of Dlspersants and Other
Chemical*
300.900 General.
300.905 NCP Product Schedule.
300.910 Authorization of use.
300.915 Data requirement*.
300.920 Addition of product* to *chedule.
Subpart K-federal FedWe* [Reserved]
Appendix A to Part 300—(Mot Included]
Appendix B to Part 300—{Not Included]
Appendix C to Part 300—Revised Standard
Dtapersant Effectiveness and Toxtetty
Tests
Appendix D to Part 800—Appropriate
Actions and Methods of Remedying
Subpart A—Introduction
1300.1 Purpose and objectives.
The purpose of the National Oil and
Hazardous Substances Pollution
Contingency Plan (NCP) is to provide
the organizational structure and
-------
Part III:
Preamble to the 1990 Final
NCP
-------
Thursday
March 8, 1990
Part II
Environmental
Protection Agency
40 CFR Part 300
National Oil and Hazardous Substances
Pollution Contingency Plan; Final Rule
Printed on Recycled Paper
-------
8666
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 300
[FRL-3644-1]
BIN 2050-AA75
National OH and Hazardous
Substances Pollution Contingency
Plan
AGENCY: Environmental Protection
Agency.
ACTION: Final rule.
SUMMARY: The Environmental Protection
Agency (EPA) is today promulgating
revisions to the National Oil and
Hazardous Substances Pollution
Contingency Plan (NCP). The Superfund
Amendments and Reauthorization Act
of 1986 (SARA) amends existing
provisions of and adds major new
authorities to the Comprehensive
Environmental Response,
Compensation, and Liability Act of 1980
(CERCLA). Furthermore, SARA
mandates that the NCP be revised to
reflect these amendments. Today's
revisions to the NCP are intended to
implement regulatory changes
necessitated by SARA, as well as to
clarify existing NCP language and to
reorganize the NCP to coincide more
accurately with the sequence of
response actions.
DATES: The final rule is effective April 9,
1990. CERCLA section 305 provides for a
legislative veto of regulations
promulgated under CERCLA. Although
INS v. Chadha. 462 U.S. 919, 103 S.Ct.
2764 (1983), cast the validity of the
legislative veto into question, EPA has
transmitted a copy of this regulation to
the Secretary of the Senate and the
Clerk of the House of Representatives. If
any action by Congress calls the
effective date of this regulation into
question, EPA will publish notice of
clarification in the Federal Register. The
incorporation by reference of certain
publications listed in the regulation is
approved by the Director of the Federal
Register as of April 9,1990.
ADDRESSES: The official record for this
rulemaking is located in the Superfund
Docket, located in Room 2427 at the U.S.
Environmental Protection Agency, 401 M
Street, SW.. Washington, DC 20460.
telephone number 1-202-382-3046. The
record is available for inspection, by
appointment only, between the hours of
9:00 a.m. and 4:00 p.m., Monday through
Friday, excluding legal holidays. As
provided in 40 CFR part 2, a reasonable
fee may be charged for copying services.
FOR FURTHER INFORMATION CONTACT:
Tod Gold, Policy and Analysis Staff,
Office of Emergency and Remedial
Response (OS-240), U.S. Environmental
Protection Agency, 401 M Street, SW..
Washington, DC 20460, at 1-202-382-
2182, or the RCRA/Superfund Hotline at
1-600-424-9346 (in Washington, DC, at
1-202-382-3000).
SUPPLEMENTARY INFORMATION: The
contents of today's preamble are listed
in the following outline:
I. Introduction
II. Response to Comments on Each Subpart (a
detailed index is set forth at the
beginning of this section)
OJ. Summary of Supporting Analyses
I. Introduction
Pursuant to section 105 of the
Comprehensive Environmental
Response, Compensation, and Liability
Act of 1980, Pub. L. No. 96-510 (CERCLA
or Superfund or the Act), as amended by
section 105 of the Superfund
Amendments and Reauthorization Act
of 1986, Pub. L. No. 99-499, and
Executive Order (E.O.) No. 12580 (52 FR
2923, January 29,1987), the
Environmental Protection Agency (EPA).
in consultation with the National
Response Team, is today promulgating
revisions to the National Oil and
Hazardous Substances Pollution
Contingency Plan (NCP), 40 CFR part
300. Today's final rule is based on
revisions proposed on December 21,
1988 at 53 FR 51394; approximately 160
commenters submitted specific
comments on the Federal Register
proposal, in writing as well as in
testimony at four public hearings held in
January 1989. Revisions to the NCP were
last promulgated on November 20,1985
(50 FR 47912).
For the reader's convenience and
because the section numbers are being
changed, EPA is reprinting the entire
NCP, except for Appendix A
{Uncontrolled Hazardous Waste Site
Ranking System: A Users Manual),
which is the subject of a separate
rulemaking (see 53 FR 51962, December
23,1988); and Appendix B (National
Priorities Last), which undergoes
frequent updates by rulemakings (see,
e.g., 54 FR 29820, July 14,1989); and
Appendix C (Revised Standard
Dispersant Effectiveness and Toxicity
Tests), for which only minor technical
corrections were proposed. Also the
"Procedures for Planning and
Implementing Off-Site Response
Actions," 40 CFR 300.440, is the subject
of a separate rulemaking and is not
included in this notice. See proposed
rule, 53 FR 48218 (November 29,1988).
Those sections of the NCP that are
merely being repeated in this rule for
public convenience, but for which no
changes were proposed or comment
solicited, are not the subject of this
rulemaking and are not subject to
judicial review.
All existing subparts of the NCP have
been revised and several new subparts
have been added. Furthermore, because
the NCP has been reorganized, many of
the existing subparts have been
redesignated with a different letter. The
reorganization of NCP subparts is as
follows:
Subpart A—Introduction
Subpart B—Responsibility and Organization
for Response
Subpart C—Planning and Preparedness
Subpart D—Operational Response Phases for
Oil Removal
Subpart E—Hazardous Substance Response
Subpart F—State Involvement in Hazardous
Substance Response
Subpart G—Trustees for Natural Resources
Subpart H—Participation by Other Persons
Subpart I—Administrative Record for
Selection of Response Action
Subpart J—Use of Dispersants and Other
Chemicals
Subpart K—Federal Facilities (Reserved]
Today's revisions to the NCP
encompass a broad and comprehensive
rulemaking to revise as well as
restructure the NCP. The primary
purpose of today's rule is to incorporate
changes mandated by the Superfund
Amendments and Reauthorization Act
of 1986 (SARA) and to set forth EPA's
approach for implementing SARA.
SARA extensively revised existing
provisions of and added new authorities
to CERCLA. These changes to CERCLA
necessitated revision of the NCP. In
addition, EPA is making a number of
changes to the NCP based on EPA's
experience in managing the Superfund
program.
The preamble to the December 21,
1988 proposed revisions to the NCP
provided detailed explanations of
changes to the existing (1985) NCP. The
preamble to today's rule consists mainly
of responses to comments received on
the proposed revisions. Therefore, both
preambles should be reviewed when
issues arise on the meaning or intent of
today's rule. Unless directly
contradicted or superseded by this
preamble or rule, the preamble to the
proposed rule reflects EPA's intent in
promulgating today's revisions to the
NCP.
The preamble to today's rule responds
to the major comments received on the
proposed revisions, except as noted in
the following paragraphs. In general, a
separate discussion is provided for each
proposed section on which comments
were received; the discussions are
organized as follows: a description of
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
the "existing (1985) rule" and/or
"proposed rule" is provided to aid the
reader in understanding today's
revisions; a summary of the comments
received on each proposed section, and
EPA's response to the comments, is then
set out under the heading "response to
comments;" and revisions made to
proposed rule language are then set out
under the heading "final rule." Revisions
to the proposed rule that are simply
editorial or that do not reflect
substantive changes may not be
described under the heading "final rule."
In addition, citations have been updated
or corrected, where appropriate.
More detailed explanations to
comments received and responses to
minor comments are set out in the
"Support Document to the NCP," which
is available to the public in the
Superfund Docket, located in Room 2427
at the U.S. Environmental Protection
Agency, 401 M Street, SW.. Washington,
DC 20460.
A number of commenters on the
proposal made statements relating to
federal facilities, including suggestions
for how subpart K of the NCP should
address their concerns. Issues raised by
commenters included the applicability
of the NCP at non-NPL federal facilities,
state involvement at federal facilities,
the role of federal agencies as lead
agency at their facilities, and the
applicability of the removal time and
dollar limits to removal actions at
federal facilities. These are important
issues that EPA is considering in the
development of the proposed subpart K,
which is the subject of a separate
rulemaking. EPA will address these
comments as well as additional
comments received on the proposed
subpart K in the preamble and support
document to the final rule on subpart K.
Subpart K will provide a roadmap to
those requirements in the NCP that
federal agencies must follow when
conducting CERCLA response actions
where either the release is on, or the
sole source of the release is from, any
facility or vessel under their jurisdiction,
custody, or control, including vessels
bare-boat chartered or operated.
The preamble to the proposed NCP
also announced that EPA was
considering an expansion of the existing
policy of deferring sites from inclusion
on the National Priorities List (such as
lites subject to the corrective action
authorities of RCRA) to include deferral
to other federal or state authorities, or
CERCLA enforcement actions. A
number of comments were received on
this suggested policy expansion. EPA is
atill evaluating the issues raised by
commenters and thus will not decide
this policy issue at this time. Current
policies with regard to what sites are
appropriate for inclusion on the
National Priorities List will remain in
effect until further notice. Should EPA
decide in the future to consider
establishing an expansion to deferral
policies, EPA will respond at that time
to the comments received.
As part of a consent decree filed June
14,1989 in Natural Resources Defense
Council, et a/., v. Reilly, C.A. No. 88-
3199 (D.D.C.), EPA agreed to deliver to
the Federal Register by February 5,1990,
for publication, final revisions to the
NCP proposed December 21,1988,
reflecting the requirements of CERCLA
section 105(b), as amended. With the
publication of this final rule, the
requirements of that consent decree are
now fulfilled.
The regulation and the rest of the
preamble use the term "CERCLA" to
mean CERCLA as amended by SARA;
the term "SARA" is used only to refer to
Title III, which is an Act separate from
CERCLA, and to other parts of SARA
that did not amend CERCLA. The term
"SARA" is used in this overview portion
of the preamble, however, to highlight
the changes to CERCLA.
A. Statutory Overview
The following discussion summarizes
the CERCLA legislative framework, with
particular focus on the major revisions
to CERCLA mandated by SARA as well
as the provisions of E.O. No. 12580,
which delegates certain functions vested
in the President by CERCLA to EPA and
other federal agencies. In addition, this
discussion references the specific
preamble sections that detail how these
changes to CERCLA are reflected in
today's rule.
1. Reporting and investigation.
CERCLA section 103(a) requires that a
release into the environment of a
hazardous .substance in an amount
equal to or greater than its "reportable
quantity" (established pursuant to
section 102 of CERCLA) must be
reported to the National Response
Center. Title III of SARA establishes a
new, separate program that requires
releases of hazardous substances, as
well as other "extremely hazardous
substances," to be reported to state and
local emergency planning officials. The
preamble discussion of subpart C
summarizes Title ni reporting
requirements.
CERCLA section 104 provides the
federal government with authority to
investigate releases. SARA amends
CERCLA section 104 to clarify EPA's
investigatory and access authorities,
explicitly empowering EPA to compel
the release of information and to enter
property for the purpose of undertaking
response activities. Amended section
104(e) also provides federal courts with
explicit authority to enjoin property
owners from interfering with the
conduct of response actions. SARA
further amends CERCLA section 104 to
specifically authorize EPA to allow
potentially responsible parties (PRPs),
under certain conditions, to conduct
investigations. The preamble discussion
of subpart E details how today's rule
reflects these revisions to CERCLA.
2. Response actions. CERCLA section
104 provides broad authority for a
federal program to respond to releases
of hazardous substances and pollutants
or contaminants. There are two major
types of response actions: the first is
"removal action," the second is
"remedial action." CERCLA section 104
is amended by SARA to increase the
flexibility of removal actions. This
amendment increases the dollar and
time limitations on Fund-financed
removal actions from $1 million and six
months to $2 million and one year, and
allows a new exemption from either
limit if continuation of the removal
action is consistent with the remedial
action to be taken. (The existing
exemption for emergency actions
remains in effect.) SARA also amends
CERCLA section 104 to require removals
to contribute to the efficient
performance of a long-term remedial
action, where practicable.
In addition, SARA amends CERCLA
section 104 to require that, for the
purpose of remedial actions, primary
attention be given to releases posing a
threat to human health. (To this end,
SARA also amends CERCLA section 104
to expand health assessment
requirements at sites and to allow
individuals to petition the Agency for
Toxic Substances and Disease Registry
(ATSDR) for health assessments.)
Among the major new provisions
added by SARA are CERCLA sections
121(a) through 121(d), which supplement
sections 104 and 106 by stipulating
general rules for the selection of
remedial actions, providing for periodic
review of remedial actions, and
describing requirements for the degree
of cleanup. These new sections codify
rigorous remedial action cleanup
standards by mandating that on-site
remedial actions meet applicable or
relevant and appropriate federal
standards and more stringent state
standards. Where the remedial action
involves transfer of hazardous
substances off-site, this transfer may
only be made to facilities in compliance
with the Resource Conservation and
Recovery Act (RCRA) (or other
applicable federal laws) and applicable
-------
8668
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
state requirements, and at which
releases from land disposal units are
addressed.
Section 121 emphasizes a long-term
perspective on remedies by requiring
that long-term effectiveness of remedies
and permanent reduction of the threat
be considered and that the calculation
of the cost-effectiveness of a remedy
include the long-term costs, including
the cost of operation and maintenance.
The section mandates a preference for
remedies that permanently reduce the
"volume, toxicity, or mobility" of the
hazardous substance, and requires that
remedies use permanent solutions and
alternative technologies or resource
recovery technologies to the maximum
extent practicable. The preamble
discussion of subpart E details how
these revisions to CERCLA are reflected
in today's rule.
3. State and public participation. New
CERCLA section 121(f) requires the
"substantial and meaningful"
involvement of the states in the
initiation, development, and selection of
remedial actions. States are to be
involved in decisions on conducting
preliminary assessments and site
inspections. States will also have a role
in long-term planning for remedial sites
and negotiations with potentially
responsible parties. In addition, states
are to be given reasonable opportunity
to review and comment on such
documents as the remedial
investigation/feasibility study (RI/FS)
and the proposed plan for remedial
action. CERCLA also provides in section
121(e)(2) that a state is permitted to
enforce any federal or state standard,
requirement, criterion, or limitation to
which the remedial action is required to
conform.
CERCLA section 104(d) provides that
a state, political subdivision thereof, or
federally-recognized Indian tribe may
apply to EPA to carry out the action
authorized in section 104. This section
allows these entities to enter into
cooperative agreements with the federal
government to conduct response actions.
SARA amends CERCLA section 104 to
make it easier for states to enter into
such cooperative agreements. The
preamble discussion concerning subpart
F details how these revisions to
CERCLA are reflected in today's rule.
SARA adds a new CERCLA section
117 to codify public involvement in the
Superfund response process. This
section mandates public participation in
the selection of remedies and provides
for grants allowing groups affected by a
release to obtain the technical expertise
necessary to participate in decision-
making.
4. Enforcement. CERCLA sections 106
and 107 authorize EPA to take legal
action to recover from responsible
parties the cost of response actions
taken by EPA or to compel them to
respond to the problem themselves.
SARA adds to CERCLA a number of
provisions that are intended to facilitate
responsible party conduct of response
actions. CERCLA section 122, for
example, provides mechanisms by
which settlements between responsible
parties and EPA can be made, and
allows for "mixed funding" of response
actions, with both EPA and responsible
parties contributing to response costs.
SARA creates a new CERCLA section
310, which allows for citizen suits. Any
person may commence a civil action on
his/her own behalf against any person
(including the United States and any
other governmental instrumentality or
agency, to the extent permitted by the
eleventh amendment to the
Constitution), alleged to be in violation
of any standard, regulation, condition,
requirement, or order which has become
effective pursuant to CERCLA (including
any provision of an agreement under
section 120 relating to federal facilities).
A civil action may also be commenced
against the President or any other officer
of the United States (including the
Administrator of the Environmental
Protection Agency and the
Administrator of the Agency for Toxic
Substances and Disease Registry) where
there is alleged a failure to perform any
act or duty under CERCLA, including an
act or duty under section 120 (relating to
federal facilities), which is not
discretionary with the President or such
other federal officer, except for any act
or duty under section 311 (relating to
research, development, and
demonstration). Section 310 requires
that citizen suits be brought in a United
States district court. CERCLA section
113(h)(4) provides that citizen suit
challenges to response actions may not
be brought until the response action has
been "taken under section 104 or
secured under section 106."
SARA amends CERCLA section 113 to
require the lead agency to establish an
administrative record upon which the
selection of a response action is based.
This record must be available to the
public at or near the site. Section 1130)
provides that judicial review of any
issues concerning the adequacy of any
response action is limited to the
administrative record. The preamble
discussion of new subpart I includes the
introduction of administrative record
requirements into the NCP.
5. Federal facilities. Section 120(a)(2)
of CERCLA provides that all guidelines,
rules, regulations, and criteria for
preliminary assessments, site
investigations, National Priorities List
(NPL) listing, and remedial actions are
applicable to federal facilities to the
same extent as they are applicable to
other facilities. No federal agency may
adopt or utilize any such guidelines,
rules, regulations, or criteria that are
inconsistent with those established by
EPA under CERCLA. (For purposes of
the NCP, the term "lead agency"
generally includes federal agencies that
are conducting response actions at their
own facilities.)
Section 120 also defines the process
that federal agencies must use in
undertaking remediation at their
facilities. It requires EPA to establish a
federal agency hazardous waste
compliance docket that includes a list of
federal facilities. EPA must within 18
months of enactment take steps to
assure that a preliminary assessment is
conducted at each facility and, where
appropriate, evaluate these facilities
within 30 months of enactment for
potential inclusion on the NPL Sections
120(a) and (d) clarify that federal
facilities shall be evaluated for inclusion
on the NPL by applying the same listing
criteria as are applied to private
facilities. Requirements governing listing
are set forth in subpart E of the NCP and
in Appendix A (the Hazard Ranking
System). Federal agencies must
commence the RI/FS within six months
of listing on the NPL and enter into an
interagency agreement with EPA.
Section 120(e) provides for joint EPA/
federal agency selection of the remedy,
or selection by EPA if EPA and the
federal agency are unable to reach an
agreement. CERCLA section 120(f)
makes clear that state officials shall
have an opportunity to participate in the
planning and selection of the remedial
action, in accordance with section 121.
B. Summary of Significant Changes
From Proposed Rule
The following is a summary of the
significant changes made to the
proposed NCP in today's final rule. In
subpart A, several definitions have been
revised, including "CERCLIS,"
"Superfund state contract," "•cooperative
agreement" and "source control action."
Also, definitions for "navigable waters."
"post-removal site control" and "source
control maintenance measures" have
been added.
In subpart B, 55 300.110 and 300.115
have been changed to provide that
during activation of the National
Response Team and the Regional
Response Teams, the agency that
provides the OSC/RPM will be the
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations 8669
chair. In § 300.165, a deadline of one
year for submitting an OSC report has
been promulgated, not 90 days as
proposed. The National Response
Center has been added to the list of
agencies described in § 300.175. No
major changes were made in subparts C
andD.
In subpart E, the final § 300.430
incorporates a new goal and
expectations into the regulatory section
on RI/FS and selection of remedy. Also.
the categories for the nine criteria—
threshold, balancing and modifying—
have been removed from the detailed
analysis section (i.e., detailed analysis
does not distinguish among nine criteria)
and placed in the remedy selection
section. When using criteria for
balancing in selecting remedies,
emphasis is now placed on the criteria
for long-term effectiveness and
permanence and for reduction of
mobility, toxicity or volume. Further,
innovative technologies need only offer
the potential to be comparable in
performance or implementability to
demonstrated technologies to warrant
further consideration in the detailed
analysis step.
Also in subpart E. the acceptable
cancer risk range in § 300.430(e)(2) has
been modified from the proposed 10"4 to
1C'' to 1(T4 to 10'«. The 10~6 point of
departure remains the same. Further, the
proposed NCP stated that maximum
contaminant levels (MCLs) generally
would be the cleanup level for
restoration of ground or surface water
where they are relevant and appropriate
under the circumstances of the release.
In the final NCP, maximum contaminant
level goals (MCLGs) that are set at
levels above zero generally will be the
cleanup levels where relevant and
appropriate. Where MCLGs are set at
levels equal to zero, the MCL generally
will be the cleanup level where relevant
and appropriate.
Other changes in subpart E include
the following: As set forth in the
preamble to § 300.435, EPA will fund
operation costs for temporary or interim
measures that are intended to control or
prevent the further spread of
contamination while EPA is deciding on
a final remedy at a site. In $ 300.400(g)
on applicable or relevant and
appropriate requirements (ARARs)
ARARs, the factors used to determine
whether a requirement is "relevant and
appropriate" have been modified.
In the community relations sections,
the rule is revised so that upon timely
request, the lead agency will extend the
length of 30-day public comment period
on the proposed plan by a minimum of
30 additional days. The public comment
period on non-time-critical removal
actions will be extended, upon request,
a minimum of 15 additional days. Also,
the requirements during remedial
action/remedial design have been
revised to now include issuing a fact
sheet and providing an opportunity for a
public briefing after completion of
design.
In subpart F, in a change to the
proposed rule, a Superfund
Memorandum of Agreement (SMOA)
SMOA will not be a prerequisite in
order for a state to recommend a remedy
to EPA or for the state to be designated
the lead agency for a non-Fund-financed
response at an NFL site. Also, the
proposed durations for review by the
state of documents (e.g., RI/FS,
proposed plan) prepared by EPA will
now be applied as well to EPA's review
of documents prepared by the state (i.e.,
when the state is the lead agency).
In subpart G and in other subparts,
clarifications were made on notification
of and coordination with natural
resource trustees. Also, the proposed
requirement that the Secretary of
Commerce obtain the concurrence of
other federal trustees where their
jurisdictions over natural resources
overlap has been revised so that the
Secretary of Commerce shall seek to
obtain such concurrence. No major
changes were made in subparts H and I
but several important clarifications are
discussed in the preamble sections on
these subparts. In subpart ], the
proposed rule required concurrence of
Commerce and Interior natural resource
trustees, as appropriate, on the use of
dispersants, burning agents, etc. The
final rule does not require such
concurrence but encourages
consultation with these natural resource
trustees.
H. Response to Comments on Each
Subpart
Index to Response to Comments
Section numbers used in this index and in
headings in preamble sections below refer to
final rule section designations.
SUBPART A
300.3 Scope
300.4 Abbreviations
300.5 Definitions
SUBPART B
300.105 General organization concepts
300.110 National Response Team
300.115 Regional Response Teams
300.120 On-scene coordinators and remedial
project managers: general
responsibilities
300.125 Notification and communications
300.130 Determinations to initiate response
and special conditions
300.135 Response operations
300.140 Multi-regional responses
300.145 Special teams and other assistance
available to OSCs/RPMs
300.150 Worker health and safety
300.155 Public information and community
relations
300.100 Documentation and cost recovery
300.165 OSC reports
300.170 Federal agency participation
300.175 Federal agencies: additional
responsibilities and assistance
300.180 State and local participation in
response
300.185 Nongovernmental participation
SUBPART C
300.200 General
300.205 Planning and coordination structure
300.210 Federal contingency plans
300.215 Title III local emergency response
plans: Indian tribes under Title III
SUBPART D
300.300 Phase I—Discovery or notification
300.305 Phase II—Preliminary assessment
and initiation of action
300.310 Phase III—Containment,
countermeasures, cleanup and disposal
300.315 Phase IV—Documentation and cost
recovery
300.320 General pattern of response
300.330 Wildlife conservation
SUBPART E
Section 300.400. General
300.400(d)(3): 300.400(d)(4)(i) Designating
PRPs as access representatives:
Administrative orders for entry and
access
300.5: 300.400{e) Definition of on-site
Treatability testing and on-site permit
exemption
300.400(h) PRP oversight
Section 300.405. Discovery or Notification
300.5 Definition of "CERCLJS"
300.405; 300.410(h); 300.41S(e) Listing sites in
CERCUS
Sections 300.410 and 300.420. Removal and
Remedial Site Evaluations
300.410 Removal site evaluation
300.410(c)(2); 300.420(c)(5) Removal site
evaluation; Remedial site evaluation
300.410(g) Notification of natural resource
trustee
300.415(b)(4); 300.420(c)(4) Sampling and
analysis plans
Section 300.415. Removal Action
300.415(b)(5)(ii) Removal action statutory
exemption
300.415(1) Removal action compliance with
other laws
300.5: 300.415(g)*fh); 300.SOO(a); 300.505:
300.525(a) State involvement in removal
actions
Section 300.425. Establishing Remedial
Priorities
300.5; 300.425 Definition of National Priorities
List; Establishing remedial priorities
300.425(d)(6) Construction Completion
category on the National Priorities List
-------
8670 Federal Register / Vol. 55, No. 46 / Thursday, March 8. 1990 / Rules and Regulations
Section 300.430. Remedial Investigation/
Feasibility Study and Selection of Remedy
Introduction
300.430(a)(l) Program goal, program
management principles and expectations
300.430(a)(l) Use of institutional controls
300.430(b) Scoping
300.430(d) Remedial investigation
300.430(d) Remedial investigation—baseline
risk assessment
300.430(e) Feasibility study
300.430(e)(2) Use of risk range
300.430(e)(2) Use of point of departure
300.430(e)(9) Detailed analysis of
alternatives
300.430(f) Remedy selection
300.430(f](5) Documenting the decision
Ground-water policy
Section 300.435. Remedial Design/Remedial
Action, Operation and Maintenance
300.435(b)(l) Environmental samples during
RD/RA
300.435(d) Contractor conflict of interest
300.5; 300.435(f) Operation and maintenance
Notification prior to the out-of-state transfer
of CERCLA wastes
Applicable or Relevant and Appropriate
Requirements
Introduction
300.5, 300.400(g)(l) Definition of "applicable"
300.5, 300.400(g)(2) Definition of "relevant and
appropriate"
300.400(g)(3) Use of other advisories,
criteria or guidance to-be-considered
(TBC)
300.400(g)(4) and (g)(5) ARARs under state
laws
300.515(d)(l) Timely identification of state
ARARs
300.430(0(1 )(ii)(C) Circumstances in which
ARARs may be waived
300430(0(l)(ii)(C)(J) Interim measures
300.430(0(1 j(iij(CJ(2) Greater risk to health
and the environment
300.430(0(l)(ii)(C)(5) Technical
impracticability
300.430(0(l)(ii)(C)(4) Equivalent standard of
performance
300.430(0(l)(ii)(C)(5) Inconsistent application
of state requirements
300.430(0(l)(ii)lC)(6) Fund-balancing
300.430(e)(2)(i)(B) Use of maximum
contaminant level goals for ground-water
cleanups
300.430lf)l5)[iii)(A) Location of point of
compliance for ground-water cleanup
standards
300.430(e)(2)(i)(F) Use of alternate
concentration limits (ACLs)
300.430(e)(2) Use of federal water quality
criteria (FWQC)
300.435(b}(2] Compliance with applicable or
relevant and appropriate requirements
(ARARs) during the remedial action
300.5 Distinction between substantive and
administrative requirements
300.430(f)(l)(ii)(B) Consideration of newly
promulgated or modified requirements
Applicability of RCRA requirements
Determination of whether a waste is a
hazardous waste
When RCRA requirements are relevant and
appropriate to CERCLA actions
Examples of potential federal and state
ARARS and TBCs
Community Relations
300.430(c); 300.430(0 (2). (3) and (6)
Community relations during RI/FS and
selection of remedy
300.415(m)(2)(ii);300.430(f)(3)(i)(C);
300.43S(c)(2)(ii)(C) Length of public
comment period
300.435(c) Community relations during
remedial design/remedial action
300.435(c)(2) Changes to the ROD after its
adoption
Other community relations requirements
Enforcement
Superfund enforcement program strategy
Special notice and moratoria
Exemptions for federal facilities
300.420; 300.430; 300.435 Early notification
and involvement
SUBPARTF
300.5 Definitions of "cooperative
agreement" and "Superfund state
contract"
300.500; 300.505; 300.515(h) EPA/State
Superfund memorandum of agreement
(SMOA); Requirements for state
involvement in absence of SMOA
300.510(c) (1) and (2); 300.510(e) State
assurances—operation and maintenance
and waste capacity
300.510(f) State assurances—acquisition of
real property
300.515(a) Requirements for state
involvement in remedial and
enforcement response
300.515(b) Indian tribe involvement during
response
300.425(e)(2): 300.515(c)(2); 300.515(c)(3);
300.515(h)(3) State involvement in PA/SI
and NPL process; State review of EPA-
lead documents
300.505 and 300.515(d) Resolution of disputes
300.515(e) (1) and (2) State involvement in
selection of remedy
Whether states should be authorized to select
the remedy at NPL sites
300.515(0 Enhancement of remedy
300.515(g) State involvement in remedial
design/remedial action
300.520 (a) and (c) State involvement in EPA-
lead enforcement negotiations
Dual enforcement standards
SUBPART G
300.600 Designation of federal trustees
300.610 Indian tribes as trustees for natural
resources under CERCLA
300.615 Responsibilities of trustees
SUBPART H
300.700(c) Consistent with the NCP
300.700(c) Actions under CERCLA section
107(a)
300.700(6} Recovery under CERCLA section
106(b)
SUBPARTI
General Comments
300.800(a); 300.810(a) Establishment of an
administrative record; Contents of the
administrative record
300.600(b) Administrative record for federal
facilities
300.800(c) Administrative record for state-
lead sites
300.800 (d) & (e) Applicability
300.805 Location of the administrative
record file
300.810 (a)-{d) Documents not included in
the administrative record file
300.815 Administrative record file for a
remedial action
300.815 and 300.820(a] Administrative record
file for a remedial action; administrative
record file for a removal action
300.B20(b) Administrative record file for a
removal action—time-critical and
emergency
300.825 Record requirements after decision
document is signed
SUBPART J
300.900—300.920 General
APPENDIX C
APPENDIX 0
Subpart A—Introduction
Subpart A. the preface to the NCP,
contains statements of purpose,
authority, applicability and scope. It
also explains abbreviations and defines
terms that are used in the NCP.
Name: Section 300.3. Scope.
Proposed rule: Proposed | 300.3 stated
that the NCP applies to federal agencies
and states and is in effect for discharges
of oil into or upon the navigable waters
of the United States and adjoining
shorelines, and releases of hazardous
substances into the environment, and
releases of pollutants or contaminants
which may present an imminent or
substantial danger to public health or
welfare.
Response to comments: A commenter
suggested that § 300.3(a) of the proposed
NCP should state that the NCP applies
to private party responses as well as to
federal agency and state responses, and
the NCP should define the
responsibilities of EPA and states for
potentially responsible party (PRPJ-lead
response actions.
EPA has revised \ 300.3(a) to
eliminate the suggestion that the NCP
applies only to cleanups conducted by
federal agencies and states. EPA does
not believe, however, that the roles or
responsibilities of EPA or states during
PRP-lead cleanups should be defined for
the purposes of § 300.3(a). Rather, EPA
prefers that these roles and
responsibilities be negotiated and
defined in site-specific enforcement
agreements.
Final rule: Proposed § 300.3(a) is
revised to read: "The NCP applies to
and is in effect for:"
Name: Section 300.4. Abbreviations.
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8, 1990 / Rules and Regulations 8671
Final rule: Several abbreviations
commonly used in the Superfund
program have been added to § 300.4:
LEPC—Local Emergency Planning
Committee
NCP—National Contingency Plan
RAT—Radiological Assistance Team
SERC—State Emergency Response
Commission
Name: Section 300.5. Definitions.
Response to comments: Comments
were received on several definitions.
The comments and EPA's responses
regarding revised and new definitions
are included in the appropriate
preamble sections, as indicated below.
The revised or new definitions are found
in the rule in § 300.5.
1. "Applicable" and "relevant and
appropriate" are discussed in the
ARARs preamble section.
2. "CERCLJS" is discussed in the
preamble on § 300.405.
3. "Cooperative agreement" and
"Superfund state contract" are
discussed in the preamble to subpart F.
4. "On-site" is discussed in the
preamble on § 300.400(e).
5. The definition for "navigable
waters" used in 40 CFR 110.1 has been
included in the NCP.
6. A new definition for "post-removal
site control" is discussed in the
preamble on § 300.415, "State
involvement in removal actions."
References to post-removal site control
have been added to the definitions in
§ 300.5 of "remove or removal" and
"remedy or remedial action."
7. "Source control action" and a new
definition for "source control
maintenance measures" is discussed in
the preamble on § 300.435(f).
In addition, minor revisions were
made to the following definitions:
1. Modifications to "National
Priorities List" are discussed in the
preamble to § 300.425.
2. In "operable unit," the last sentence
has been deleted because it was not
appropriate for a definition.
3. In "pollutant or contaminant," the
reference to subpart E was deleted
because the definition applies to the use
of the term throughout the NCP.
4. In "Superfund Memorandum of
Agreement (SMOA)," the words
"nonbinding" and "may establish" are
used to emphasize the voluntary nature
of a SMOA (see preamble to subpart F).
Also, a reference to "removal" has been
added (see preamble to § 300.415).
5. In "United States," the term "Pacific
Island Governments" is used instead of
'Trust Territory of the Pacific Islands"
(this revision is also made in
J J 300.105(d) (Figures 2 and 3) and
300.175(b)(9)(x)).
Subpart B—Responsibility and
Organization for Response
Subpart B describes the
responsibilities of federal agencies for
response and preparedness planning
and describes the organizational
structure within which response takes
place. Subpart B lists the federal
participants in the response
organization, their responsibilities for
preparedness planning and response,
and the means by which state and local
governments, Indian tribes, and
volunteers may participate in
preparedness and response activities.
The term "federal agencies" is meant to
include the various departments and
agencies within the Executive Branch of
the federal government. Subpart B
should be distinguished from subpart K
(under preparation separate from this
final rule), which deals specifically with
site evaluation and remedial
requirements for facilities under the
jurisdiction of individual federal
agencies.
The proposed revisions to subpart B
did not include major substantive
changes; however, EPA did propose to
combine existing subparts B and C. The
proposed subpart B also presented key
information in a logical sequence of
response-oriented activities from
preparedness planning through response
operations. The listing of the capabilities
of federal agencies with respect to
preparedness planning and response
was proposed to follow the sections
relating to response operations.
The following is a discussion of
comments submitted and EPA's
responses on specific sections of
proposed subpart B. One change that
has been made to the proposal
throughout subpart B is, where
appropriate, to delete references to
Executive Orders. Although Executive
Orders are binding on agencies of the
federal government, such references are
unnecessary in a rule.
Name: Section 300.105. General
organization concepts.
Proposed rule: Section 300.105 directs
federal agencies to undertake specified
planning and response activities and
describes the general organizational
concepts of the National Response Team
(NRT), the Regional Response Teams
(RRTs) and the on-scene coordinator
(OSC)/remedial project manager (RPM).
The proposal provided general
descriptions of member agency
responsibilities with respect to their
participation in the NRT and the RRTs.
Response to comments: Many of the
commenters appear to regard both the
NRT and the RRTs as response rather
than planning, coordinating, and support
organizations. Another commenter
wanted § 300.105(c)(l) edited to clarify
the fact that the NRT/RRTs are policy
and planning bodies that support the
federal OSC, but that they do not
coordinate responses. One commenter
proposed dividing Figure 1 into two
parts, one to show the NRT/RRT
planning roles and the relationship
between the NRT/RRTs and the State
Emergency Response Commissions
(SERCs) and the Local Emergency
Planning Committees (LEPCs) and the
other to illustrate the relationship
between the NRT and the RRT during
incident-specific situations. Another
wanted § 300.105(d)(l) expanded to
describe all three figures rather than
only the first figure. Another noted that
corrections are needed in the references
to trust territories in Figures 2 and 3
(described in § 300.105(d)(2) and (3)).
The above comments make it clear
that some clarification of the NRT/RRT
roles in the national response system is
needed. In response, text changes in the
rule now indicate the policy, planning,
coordination and response support roles
of the NRT and the RRTs. Figure 1
(§ 300.105(d)(l)) shows the National
Response System has been expanded to
better indicate the relationships
between the parts of the organization
showing NRT, RRT, OSC and RPM,
special teams, and the connections with
state and local responders. Added lines
indicate the activities of the NRT and
RRTs including planning and
preparedness as well as response
support. Another added line indicates
NRC policy guidance from the NRT.
Experience has shown that the
standing RRTs cannot provide a useful
forum for individual local governments
on a continuing basis because the RRT
responsibilities extend through a
multistate region and their regular
meetings are only two to four times a
year, and generally devoted to
systemwide issues for the entire region,
rather than site-specific issues. Local
governments may and often do
participate in such meetings where
lessons learned from a particular
incident are being discussed, for
example. At the standing RRT level.
then, the most effective way for local
interests to be represented is through
the state member. When an incident-
specific RRT action is needed, local
interests on scene are represented in
accordance with the local plans,
including federal local plans, guiding the
particular response. An essential
purpose of the national response system
is to ensure federal readiness to handle
a response which might exceed local
and state capabilities. Appropriate
-------
8672 Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
RRT/federal representation on multi-
agency local response groups can
provide a forum for a particular
community, harbor area, or other
geographic locality, comparable to what
the RRT provides for the multi-state
region.
One commenter wanted the NCP to
include checklists of the specific tasks to
be completed by each agency during a
response and to identify who in each
agency is supposed to carry out those
tasks. In response EPA believes that
detailed checklists of response tasks
and persons responsible for those tasks
belong in local response plans, not in the
more general regional and national
plans.
One commenter said that "extremely
hazardous substances" should be added
to the substances listed in
§ 300.105(a)(l). Extremely hazardous
substances are defined in a separate
section of the SARA statute, Title III.
Although some extremely hazardous
substances are CERCLA hazardous
substances, most are not. On January 23,
1989, however, EPA proposed to
designate the remaining extremely
hazardous substances as CERCLA
hazardous substances (54 FR 3388). This
addition, when promulgated, will in
effect mean that any reference to
"hazardous substances" will implicitly
include extremely hazardous
substances.
Another commenter wanted to correct
awkward wording in § 300.105(a)(4). The
wording in § 300.105(a)(4) has been
changed as indicated below.
Final rule: Proposed § 300.105 has
been revised as follows:
1. Section 300.105(a)(4): "Make
available those facilities or resources
that may be useful in a response
situation, consistent with agency
authorities and capabilities."
2. Section 300.105(c)(l): "The National
Response Team (NRT), responsible for
national response and preparedness
planning, for coordinating regional
planning, and for providing policy
guidance and support to the Regional
Response Teams. NRT membership
consists of representatives from the
agencies specified in § 300.175."
3. Section 300.105(c)(2): "Regional
Response Teams (RRTs). responsible for
regional planning and preparedness
activities before response actions, and
for providing advice and support to the
on-scene coordinator (OSC) or remedial
project manager (RPM) when activated
during a response. RRT membership
consists of designated representatives
from each federal agency participating
in the NRT together with state and (as
agreed upon by the states) local
government representatives."
4. Revisions to Figures 1 through 3
have been made. The revised Figure 1
clarifies the response support or
planning roles of the various entities
and shows the planning relationships
between the RRTs and the SERCs and
LEPCs. It also clarifies that, apart from
state and local participation in the RRT,
the federal membership of the NRT and
the RRTs is the same. Figures 2 and 3
have also been revised slightly to refer
to Pacific Island Governments rather
than Trust Territory of the Pacific
Islands.
Name: Section 300.110. National
Response Team.
Proposed rule: The proposed rule
delineated the roles and responsibilities
of the NRT, specified who will act as
chair and vice-chair during activation
for a response action, outlined the
planning and preparedness
responsibilities of the NRT, and
discussed responses in general, to oil
discharges and releases of hazardous
substances, pollutants or contaminants.
The organization of the National
Response Center (NRC) was placed in
the notification section, § 300.125.
Response to comments: A commenter
suggested that more detail on the NRC
organization be included in the final
rule. EPA agrees that more descriptive
language is needed but feels it is better
placed in the section on notification and
communications. These changes are
discussed under | 300.125.
A commenter suggested that more
information is needed on the specific
duties of the NRT in an emergency, as
well as a remedial action. After careful
consideration, EPA believes that the
roles and responsibilities of the NRT are
addressed satisfactorily in §§ 300.110
and 300.175, and no changes are
required. The NRT is activated in only a
limited number of responses, and its
activities then are usually carried out
through communications between
individual NRT member agencies with
their RRT members in the field as
needed to support the OSC or RPM.
Since the NCP generally describes
action tied to the response incident or
site, and the NRT is generally not
involved in actions on scene, NCP
discussion of possible NRT activities is
not necessary. The idea of a clearer pre-
planned procedure for dealing with an
event of catastrophic or national
significance has been discussed, but
decisions have not yet been made as to
the form such protocols might take,
when or if they are deemed to be
needed.
Another commenter suggested that, in
view of the limitation on United States
Coast Guard (USCG) response authority
following the 1987/1988 Department of
Transportation (DOTJ/EPA Instrument
of Redelegation (May 27,1988). the
second sentence of § 300.110(b) would
be more instructive if the chair of the
NRT during activation was the agency
providing the OSC/RPM.
EPA agrees. Who sits as chair or vice
chair of the NRT will depend on which
agency provides the OSC/RPM for the
particular response action. It does not
necessarily depend on "whether the
discharge or release occurs in the inland
zone or coastal zone." EPA has certain
responsibilities for releases in the
coastal zone. The second sentence in
§ 300.110(b) has been changed as
recommended by this comment.
It was suggested that $ 300.110(h)(3)
further clarify who determines when it is
necessary to activate the NRT. EPA
believes that activation of the NRT is
adequately described in § 300.110(j) and
does not need to be outlined
additionally in § 300.110(h)(3).
Final rule: The second sentence of
proposed 5 300.110(b) is revised as
follows: "During activation, the chair
shall be the member agency providing
the OSC/RPM."
Name: Section 300.115. Regional
Response Teams.
Proposed rule: This section delineates
the roles and responsibilities of the
Regional Response Team {RRT}. For
example, proposed § 300.115(b)(2)
addressed the activation of the incident-
specific RRT, and how the incident-
specific RRT supports the OSC/RPM
when the designated OSC/RPM directs
and coordinates response efforts at the
scene of the spill.
Response to comments: It was
suggested that the NCP more clearly
define the role of the RRT in the
remedial program and require that
regional and state remedial managers be
informed of the assistance available
from the RRTs. In response, EPA
believes that the description of the roles
and responsibilities of die RRT in
$ 300.115 provides the necessary
framework for RRTs to support RPMs in
the remedial program as they
traditionally have supported OSCs.
Upon notification and request, the RRT
can function the same way for all
response actions, whether they involve
oil spill or hazardous material releases,
and removal or remedial actions.
Experience has not yet shown the need
or usefulness of specific RRT actions in
connection with the implementation of
the remedial program as described in
the NCP, while the flexibility exists for
them to be involved if a need does arise.
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
8673
One commenter suggested that this
section should not indicate that the
RRTs are response organizations, but
that they are there to provide advice
and assistance to the OSC, as
necessary. In response, § 300.115 was
not intended to portray the RRTs as
response organizations. It indicates that
they are the "appropriate regional
mechanism for development and
coordination of preparedness activities
before a response action is taken and for
coordination of assistance and advice to
the OSC/RPM during such response
actions." The proposed § 300.115(i)(7)
indicated, however, that the standing
RRT should "be prepared to respond to
major discharges or releases outside the
region." This may have been somewhat
misleading, and has been changed to
indicate that the RRT may provide
"response resources" to major
discharges or releases outside the
region.
It was also recommended that the
RRT support the designated OSC/RPM
of the state response agency without
assuming federal OSC direction and
coordination of all other efforts at the
scene of the release. EPA does not agree
with this suggested comment to
I 300.115(b). An essential purpose of the
national response system is to ensure
federal readiness to handle a response
which might exceed local and state
capabilities. That being so, the RRT
would generally not be activated unless
the federal government was needed as
the lead in the response. In general, the
authorities under which a federal
agency operates require that
commitments of federal resources and
personnel be made through particular
channels or command chains. Through
specific memoranda of understanding,
state OSC/RPMs could request certain
kinds of federal assistance from
individual agencies, but the RRT as a
unit is designed to support a federal
OSC in those situations where the size
or nature of the response calls for a
significant federal presence. (Experience
shows that a federal OSC is on scene
many times with no need to activate the
RRT.)
Another commenter wanted the
following language added to
{ 300.115(c): "If the RRT is activated
upon the request of the state
representative to the RRT, then the chair
of the incident-specific RRT may be that
representative if the members of the
RRT so agree." EPA does not agree with
the comments. Who sits as chair and co-
chair to the incident-specific RRT
depends on where the spill occurred and
who provides the OSC/RPM, not who
requests activation of the RRT.
Certainly, the state representative will
always be an active member of the
incident-specific RRT when a spill
occurs in the particular state, but the
chair or co-chair will usually be the
USCG or EPA representative.
Also suggested was the
reconsideration of the extension of
§ 300.115(d) to allow for the
participation of the Indian tribal
governments on both the standing RRT
and on incident-specific RRTs. Given
that there are over 200 federally
recognized Indian communities or
groups in Alaska, participation by these
entities on the same basis as the State of
Alaska in the planning and coordination
functions of the RRT is not
administratively feasible. The comment
stated that this provision should be
modified to allow flexibility in
determining how Alaska Native villages
will be represented on the Alaska RRT.
EPA understands the commenter's
concern as to the workability of a large
number of Indian tribal governments
participating in an RRT's activities.
However, the 1986 amendments to
CERCLA added several provisions for
Indian tribal governments to be afforded
the same opportunities as states. Indeed,
CERCLA section 126(b) specifically
states that "{t]he governing body of an
Indian tribe shall be afforded
substantially the same treatment as a
state with respect to the provisions
of * * * section 105 (regarding roles
and responsibilities under the national
contingency plan * * *)." It is
consistent with that provision to include
Indian communities in the national
response system by having their
jurisdictions recognized in the context of
nationwide provisions for response
activities. The proposed NCP language
appeared to be the best way to allow
interested Indian tribal governments to
determine if the benefits of RRT
membership would be such that they
would be willing to undertake the
responsibilities of RRT membership, or
if there is an ad hoc basis, a planning
project, or other basis on which an RRT-
tribal relationship might be useful. In
some regions, an existing inter-tribal or
multi-tribal organization might provide
appropriate representation. The
language in the proposed rule was
intended to afford these kinds of
opportunities.
Furthermore, it was submitted that,
for consistency, it would be much more
effective to mandate local government
involvement from the national level,
rather than to rely upon each state. The
comments state that due to the impact a
local jurisdiction can experience from a
hazardous substance release, it is
imperative that local governments have
the ability to participate on the RRT.
EPA agrees that the impacts to a local
government from a major release are
substantial, but EPA does not agree that
the local government should be
mandated to participate in all RRT
activities. The local governments may
attend meetings and may actively
participate in RRT functions through
their state representative. The state
representative is generally responsible
for actively representing the interests of
the local governments. If the state
representative is performing his/her
duties properly, all local governmental
interests will be represented at RRT
functions.
Also, it was suggested that RRT
review of LEPC plans should be
conducted only after the plans have
been reviewed by the SERC, as required.
EPA agrees that the RRTs will not be
able to review and comment on every
LEPC plan within their region. LEPC
plans should be initially reviewed by the
states, and if the state believes that the
RRT should also review the LEPC plan,
then the state should request such a
review from the RRT.
One commenter wanted the phrase
"or participation in" inserted after
"conduct" in § 300.115(i)(8), noting that
this would allow the state RRT
representative/SERC the ability to
request RRT participation, within
allowable resources. EPA agrees that
the phrase "or participate in" should be
inserted after "conduct" in
§ 300.115(0(8). This would give the RRT
more flexibility in deciding whether it
wanted to manage a particular exercise
or training program or simply act as a
participant.
Regarding | 300.115{j)(l)(i), one
commenter raised the question of who
decides when the OSC's/RPM's
response capability is exceeded. This
question does not need to be addressed
in the final rule. The particular OSC/
RPM will know when his/her response
capability is going to be exceeded, and
that information will be passed on to the
RRT as soon as it is known. In addition,
if the agencies on the RRT believe that
the response capability to the OSC/RPM
will be exceeded, then they also have
the option of activating the RRT.
There was a request for clarification
as to whether a pollution report satisfies
the requirement for written confirmation
of a request for RRT activation under
§ 300.115(j)(2). EPA responds that a
written pollution report confirming the
request to activate the RRT would
satisfy the requirement; the pollution
report is the primary means of providing
information during the course of an
-------
8674
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
incident. A request to activate the RRT
should also be confirmed in a letter from
another RRT representative.
Also, it was suggested that
{ 300.115(k) be expanded to address the
contingency of what happens when a
federal lead agency fails to perform its
assigned role. The comment stated that
if this situation occurs, the RRT should
be notified and EPA or the USCG should
assume the federal responsibilities.
In E.0.11735 and E.0.12580, the
President has delegated certain
functions and responsibilities vested in
him by the CWA and CERCLA to
various federal agencies. If federal
agencies cannot perform their assigned
tasks, such federal agencies may
authorize another agency to perform the
task through interagency agreement or
contract. (See also preamble discussion
below on § 300.130(a).)
Final rule: Proposed § 300.115 has
been revised as follows:
1. The second sentence of § 300.115(c)
reads: "When the RRT is activated for
response actions, the chair shall be the
member agency providing the OSC/
RPM."
2. Section 300.115[i)(7): "Be prepared
to provide response resources to major
discharges or releases outside the
region."
3. Section 300.115(i)(8): "Conduct or
participate in training and exercises as
necessary to encourage preparedness
activities of the response community
within the region."
Name: Section 300.120. On-scene
coordinators and remedial project
managers: general responsibilities.
Proposed rule: Consistent with the
delegation of the President's response
authority to the various federal agencies
under section 2(d)-(f) of Executive
Order 12580, proposed § 300.120(b)
specifies when federal agencies other
than EPA or USCG shall provide OSCs
and RPMs.
Response to comments: One
commenter recommended that proposed
5 300.120 be divided into two
subsections. One subsection would
discuss the responsibilities of an OSC
and the other subsection would discuss
the responsibilities of an RPM. In the
commenter's view, the responsibilities
of an OSC and an RPM do not overlap
as much as was suggested in proposed
{ 300.120.
Another commenter recommended
that a distinction be developed between
actions where the OSC is in a
monitoring role and actions where the
response is undertaken using a federal
funding mechanism such as the oil
pollution fund established under CWA
section 311(k) or the Hazardous
Substance Superfund. The commenter
stated that when the response action is
federally funded, local responders
"interpret the OSC's actions as
tantamount to a command role."
In response, the NCP is intended to
provide a framework within which
response managers have the flexibility
to use their best judgment, consonant
with applicable law, regulation and
guidance. In general, the role of the RPM
parallels that of the OSC. Also, in
general, the role of the OSC is the same
whether or not the response action is
federally funded. The roles as they are
described in the current NCP are
accurate, though not very detailed. EPA
feels that the comments are well taken,
and that it might be useful to have
somewhat more detailed, separate
descriptions of OSC and RPM
responsibilities, and of any differences
in OSC actions depending on whether
the response is federally funded or
funded by the responsible party. EPA
has decided not to make such revisions
in today's rule but will explore this
matter with other federal agencies and
will also consider developing guidance
on this subject.
Another commenter pointed out that a
state law may provide a fire chief with
coordination authority over all on-scene
officials, federal, state, and local, and
inquired if the local fire chiefs authority
is superseded by proposed § 300.120. In
addition, the commenter suggested that
a conflict can be avoided if the authority
to supersede the local fire chiefs
authority was clearly spelled out.
Finally, the commenter recommended
that § 300.120 be amended to permit the
OSC to delegate his authority to a state
or local official.
In response, the legal authority of the
OSC to take action to respond to a
discharge or release is section 311(c) of
the Clean Water Act (CWA), 33 U.S.C.
1321(c) or section 104 of CERCLA. To
the extent that an action of a state or
local official to direct response actions
conflicts with actions under federal law
to direct response, the federal law will
prevail if there is federal participation in
the response action. However,
circumstances under which an OSC's
authority is changed (local or state to
federal, for example) should be spelled
out in federal and local contingency
plans, so that problems with conflicting
authorities do not arise at the scene of a
response action.
With regard to the recommendation
that S 300.120 be amended to permit the
OSC to delegate his/her authority to a
state or local official, such delegation is
allowed only to the extent authorized by
law. There is no mechanism provided
under the CWA for such a delegation.
Section 104(d) of CERCLA, however.
does permit certain agencies of the
federal government to enter into
contracts or cooperative agreements
with a state to undertake, on behalf of
the United States, actions authorized by
section 104 of CERCLA. Finally,
changing § 300.120 to clearly state that
the federal OSC's authority supersedes
the authority of the local fire chief is not
necessary because § 300.120 states that
the OSC"* * * directs response efforts
and coordinates all other efforts at the
scene * * *."
Paragraph (a): One commenter
recommended that the term "hazardous
waste management facility" used in
proposed § 300.120(a)(l) be defined
since, according to the comment, it is
unclear whether all facilities under the
jurisdiction, custody or control of a
federal agency are considered to be
hazardous waste facilities. According to
the comment, if all such federal facilities
are "hazardous waste management
facilities," the section should be
amended to conform to E.0.12580. The
comment apparently relates to the
following sentence in the proposed rule:
"The USCG shall provide an initial
response to the discharges or releases
from hazardous waste management
facilities within the coastal zone in
accordance with DOT/EPA Instrument
of Redelegation * * *."
The comment appears to assume that
this section is intended to apply to all or
many federal facilities as that term is
used in section 120 of CERCLA. Instead,
the NCP reference to "hazardous waste
management facility" is to its very
narrow meaning within the terms of the
DOT/EPA Instrument of Redelegation
(May 27,1988) dealing with
predesignation of Coast Guard and EPA
OSCs. For this reason, it is not
necessary to define this term in the NCP.
With regard to § 300.120(a)(2), another
commenter recommended that the term
"federally funded" be deleted and
"Fund-financed" be inserted, because
EPA's authority to undertake response
actions with regard to releases from
facilities or vessels owned, possessed or
controlled by other federal agencies is
limited by E.0.12580. The recommended
change is not necessary since proposed
§ 300.120(a)(2) provides for an exception
to the general statement of EPA
authority for facilities and vessels under
the jurisdiction or control of other
federal agencies. No change is
necessary since the exception is
consistent with Executive Order 12580.
Paragraph (b): One commenter
recommended that J 300.120(b) be
amended to indicate which agency
would be responsible for providing
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations 8675
OSCs and RPMs in the case of a release
from a Coast Guard vessel. In addition,
the commenter recommended that
"emergencies" be defined in
S 300.120(b)(2).
With regard to the first comment, in
accordance with sections 2 (e) and (f) of
EO. 12580, the Department of
Transportation is responsible for
providing OSCs and RPMs in the event
of a release from a Coast Guard vessel.
As written, proposed § 300.120(b)(2)
stated that in the case of a federal
agency other than the USCG, EPA, DOD
or DOE, the federal agency involved
shall provide the OSC or RPM. The final
rule does not include the USCG in
§ 300.120(b)(2) so that it is clear that the
USCG will respond to a release from a
USCG vessel.
Regarding the second comment, the
preamble to the proposed rule provided
a definition of the term "emergencies"
for purposes of the delegations under
E.0.12580 (53 FR 51396). An additional '
definition in S 300.120(b)(2) is
unnecessary.
Paragraph (c): One commenter stated
that the Department of Defense (DOD)
only has removal response authority for
incidents involving DOD weapons and
munitions. EPA agrees and has revised
this section to state that DOD will have
response authority for incidents
involving weapons and munitions within
the control, custody or jurisdiction of
DOD.
Paragraphs (d) and (e): One
commenter stated that while
\ 300.120(d) is supposed to describe the
general responsibilities of OSCs and
RPMs, it is primarily concerned with
which federal agency will provide the
OSC or RPM. EPA disagrees. In addition
to specifying the agency that provides
the OSC or RPM, § 300.120 also contains
a description of the general
responsibilities of OSCs and RPMs.
In order to further clarify the general
responsibilities of OSCs and RPMs, EPA
has added language to paragraphs (d)
and (e) to make it clear that OSCs and
RPMs are responsible for coordinating
and directing responsible parties—as
well as agencies and contractors—in
their conduct of either federally
financed or non-federally financed (e.g.,
enforcement) response actions. Under
this authority, OSCs and RPMs may stop
or redirect work if, in their judgment, it
appears likely to result in a release or
threatened release of hazardous
substances into the environment or
poses an imminent and substantial
endangerment to human health, welfare
or the environment.
Paragraph (f): One commenter stated
that the role of the support agency
coordinator (SAC) should not be limited
to responding as requested by the OSC/
RPM. Both the federal government and
the state government should designate
an OSC or RPM with parallel
responsibilities. EPA believes that it is
essential to have one person in charge
and responsible for seeing that the
response action proceeds expeditiously
and, therefore, has not made this
change.
Paragraph (g): Two commenters
suggested that the NRT establish a
curriculum for OSCs and RPMs and a
certification process. In response, the
NCP is not the appropriate mechanism
for addressing this recommendation.
The comments on this topic have been
forwarded to the National Response
Team for further action as it deems
appropriate.
Final rule: Proposed § 300.120 is
revised as follows:
1. The fourth sentence of
§ 300.120(a)(l) has been amended by
adding the following: "* * * except
as provided in paragraph (b) of this
section."
2. The last sentence of § 300.120(a)(2)
has been amended by deleting "except
those involving vessels" and adding the
following: "except as provided in
paragraph (b) of this section."
3. Section 300.120(b)(2) has been
revised by deleting "USCG."
4. Section 300.120(c) has been revised
as follows: "DOD will be the removal
response authority with respect to
incidents involving DOD military
weapons and munitions or weapons and
munitions under the jurisdiction,
custody or control of DOD."
5. EPA has added language to
paragraphs (d) and (e) to make it clear
that OSCs and RPMs are responsible for
coordinating and directing responsible
parties—as well as agencies and
contractors—in their conduct of either
federally financed or non-federally
financed [e.g., enforcement) response
actions.
Name: Section 300.125. Notification
and communications.
Proposed rule: The proposed NCP
added the word "notification" to the
title of this section, and moved its
location to more accurately reflect its
place in the response sequence. Both the
title and the location change better
reflect the importance of the National
Response Center (NRC) in the national
response system.
Response to comments: One series of
comments cited potential confusion
about notification procedures—reporting
of spills or releases—to any place other
than the NRC, since the proposed NCP.
in various places, suggests such
alternatives as notifying EPA or USCG
OSCs directly when it is "not
practicable" to reach the NRC. The
commenter suggested that the NCP
should clarify that reporting to the NRC
is a provision in law, not an option. No
matter how many other places a spill is
reported, the notification must be made
to the NRC by the person in charge of
the vessel or facility, as soon as
possible.
EPA agrees with these comments, but
believes the language in § 300.125 is
simple and direct, and makes clear the
requirement for notice to the NRC. Two
changes were made in notification
language elsewhere in the rule, however,
to emphasize the commenter's point. In
subpart D, § 300.300(b), and in subpart
E, § 300.4Q5(b), identical changes were
made to reinforce the requirement for
reporting to the NRC regardless of other
reports or notifications made, The
operative sentences will now read: "If it
is not possible to notify the NRC or
predesignated OSC immediately, reports
may be made immediately to the nearest
USCG unit. In any event, such person in
charge of the vessel or facility shall
notify the NRC as soon as possible."
(New language italicized.)
It was suggested that more places in
the NCP should repeat the concept that
whenever there is doubt as to the size or
nature of a spill or release, or which
reporting requirements are applicable,
reporting to the NRC is encouraged.
Although recognizing the potential for
confusion, EPA believes that the rule
should state the notification or reporting
requirement as simply and directly as
possible, in the proper sequence of
actions delineated by the rule. Other
methods, outside of rulemaking. should
be found to make the industry and the
general public aware of these
responsibilities. Repeating the concept
in various places with various different
wordings has the potential for additional
interpretations, which may be
misleading. Some suggested language
described which actions do not meet the
requirements of the law. The final rule
describes which actions do satisfy the
statutory requirements.
Also, the commenter recommended
that the tone and clarity of language on
reporting requirements in the preamble
to the proposed rule (53 FR 51401, third
column) should be included in the rule
itself. EPA believes that these two
paragraphs are more appropriate in a
preamble and is repeating them here
because of their importance:
EPA reiterates that statutory and
regulatory reporting requirements are
still keyed to discharges of oil and
releases of hazardous substances
exceeding a report able quantity (RQ).
-------
8676 Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
EPA is aware, however, that many
notifiers do not have the training or
knowledge to determine if there is an
RQ of a substance involved in a release.
Therefore, whenever there is any doubt
about whether a release exceeds an RQ,
EPA encourages that the release be
reported to the NRC. Reporting ensures
positive referral of every incident to
each federal agency with jurisdiction
and/or regulatory interest.
The NRC is tasked with processing all
reports regardless of the material
involved or the reported significance of
the incident. All reports are passed
immediately by telephone to the proper
federal response entity and recorded in
the NRC data base at the time of receipt.
Public, government, industry, or
academic requests for access to stored
data may be made through a written
Freedom of Information Act request to
the Chief, National Response Center,
2100 Second Street NW., Room 2611,
Washington, DC 20593.
One commenter suggested that many
people are not aware of the range of
functions for which the NRC is
responsible. After careful scrutiny, EPA
has decided that not all the NRC
functions are appropriately listed in a
section covering on-scene action, the
intent of § 300.125. However, the basic
activities will be listed in a new entry in
§ 300.175, Federal agencies: additional
responsibilities and assistance.
One commenter said that § 300.125(b)
should not put the responsibility for the
NRC facility/service on the Coast Guard
as a requirement, since support for the
NRC is a cooperative federal effort
under Coast Guard lead. EPA agrees
and has inserted the phrase "in
conjunction with other NRT agencies,"
to this section.
One comment cited an error in the
commercial phone number listed in the
proposed NCP. EPA agrees; the correct
telephone number is 202-267-2675.
Final rule: Proposed § § 300.125,
300.300(b) and 300.405(b) are revised as
follows:
1. Section 300.125(a) has been revised
to more accurately describe the
responsibilities of the Natipnal
Response Center for notification and
communications.
2. Section 300.125(b) has been
amended by including the phrase "in
conjunction with other NRT agencies."
3. Section 300.125(c) now includes the
correct commercial telephone number
for the NRC: 202-267-2675.
4. The last two sentences in
§§ 300.300(b) and 300.405(b) now read as
follows: "If it is not possible to notify the
NRC or predesignated OSC
immediately, reports may be made to
the nearest USCG unit. In any event.
such person in charge of the vessel or
facility shall notify the NRC as soon as
possible."
Name: Section 300.130.
Determinations to initiate response and
special conditions.
Proposed rule: Proposed § 300.130(a)
authorized EPA or the USCG to respond
to discharges of oil or releases of
hazardous substances, pollutants or
contaminants except with respect to
such releases on or from vessels or
facilities within the jurisdiction, custody
or control of other federal agencies. This
section also described requirements
with respect to certain kinds of releases,
e.g., radioactive materials.
Response to comments: Paragraph (a):
Several commenters commented that
some federal agencies may be unable,
due to lack of expertise, orientation, or
funding, to respond to the threat of
release or actual release of hazardous
substances, pollutants or contaminants
at their facilities. Accordingly, the
commenters recommended that EPA and
the USCG be given unrestricted
response authority over releases, actual
or threatened, at all federal facilities,
except DOD and DOE facilities, and that
federal agencies other than EPA, the
USCG and, presumably, DOE and DOD
should only be given lead agency
authority if and when they meet certain
minimum standards. One commenter
stated that proposed § 300.130(a) does
not specifically grant authority to a
federal agency to initiate a response,
and that the section should grant this
authority. The commenter noted that the
executive order delegating the
President's authority under CERCLA
grants this authority, and indicated that
§ 300.130(a) should reference the
executive order.
In response. EPA disagrees with the
commenter's suggestion that the USCG
and EPA should retain unrestricted
response authority over releases at
federal facilities. In section 115 of
CERCLA, Congress specifically
authorized the President to "delegate
and assign any duties or powers
imposed upon or assigned to him" in the
statute. By Executive Order 12580 (52 FR
2923, Jan. 29,1987), the President
delegated to federal agencies and
departments the responsibility and
authority for taking most response
actions at non-NPL sites within their
jurisdiction, custody, or control. {EPA
believes that the explanation of these
authorities in this preamble is sufficient.
and need not be specifically repeated in
the text of the rule.) Moreover, CERCLA
section 120 makes clear that federal
agencies are primarily responsible for
the conduct of the Rl/FS and remedial
action at federal facility sites that are
listed on the NPL. Amending
§ 300.130(a) of this rule to designate
USCG and EPA as lead agencies for
responses at federal facility sites would
not be in accord with these mandates.
At the same time, it is important to
note that federal agencies may request
the services of the USCG or EPA on a
reimbursable basis, and the NRT/RRT
system provides for quick, appropriate
communication of such requests.
Experience to date has generally shown
this to be adequate. A memorandum of
understanding between a federal agency
and EPA or USCG would also be
possible to cover both required action
and funding procedures, allowing for
EPA and USCG to manage responses
under certain predetermined
circumstances.
Some commenters further
recommended that federal agencies
should be required to immediately notify
the NRC and the appropriate RRT
whenever the federal agencies are
unwilling or unable to respond to a
release.
In response, as a threshold matter, the
federal agencies and.departments are
already required by section 103(a) of
CERCLA to report all releases of
reportable quantities of hazardous
substances to the National Response
Center. (Pursuant to section 103(a), the
National Response Center notifies the
Governor of each state whenever a
report of a release is made with respect
to that state.) In addition, with regard to
federal facilities on the Hazardous
Waste Compliance Docket (which
includes releases for which a report is
required under CERCLA section 103{a)
and (c)), the federal agencies and
departments are required to conduct a
Preliminary Assessment (PA), after
which EPA will evaluate whether the
release should be listed on the NPL.
As to the specific suggestion of the
commenter that federal agencies may be
"unwilling or unable" to respond to
certain releases, it is important to note
that pursuant to CERCLA section 115
and E.0.12580, the federal agencies and
departments have been delegated the
responsibility under CERCLA section
104 for evaluating and taking response
actions, as necessary, for most releases
that occur at non-NPL facilities within
their jurisdiction, custody, or control
(E.0.12580, at section 2(d) and (e)). The
federal agencies also have
responsibilities for the conduct of
response actions at NPL sites pursuant
to CERCLA section 120. EPA does not
believe that a separate reporting
requirement is necessary to address
those situations where the federal
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8. 1990 / Rules and Regulations 8677
agency or department decides that a
response action is not necessary.
In situations where a federal agency
experiences some difficulty in
responding to a release, it is the general
practice of the agencies to contact one
or more of the sister agencies that have
special expertise regarding the
contamination problem (e.g., the
Department of Defense for munitions
waste, EPA more generally). As
discussed above, the agencies may
request the assistance of EPA or the
USCG on an emergency basis, or enter
into a more general memorandum of
understanding. Finally, federal facility
releases are included on the Hazardous
Waste Compliance Docket, and are then
evaluated by EPA for possible inclusion
on the NPL; thus, EPA will be aware of
significant releases to which the federal
agency or department has been unable
to respond as those releases move
through the evaluation process. In
conclusion, it is unnecessary to require
the federal agencies to provide special
notice to the NRG as suggested by the
commenter.
Paragraph (b): One commenter
recommended that the first line of
§ 300.130(b)(l) be revised by deleting
"any oil is discharged" and inserting
"there is a discharge of oil." The
recommendation is suggested on the
grounds that the definition of
"discharge" in subpart A does not
necessarily include the use of discharge
as a verb. EPA does not agree with this
comment.
The commenter pointed out that under
section 104(a)(l) EPA, as the President's
delegate, is authorized to take response
action when there is a release or
threatened release of a pollutant or
contaminant only if the release or
threatened release may present an
imminent or substantial endangerment
to the public health or welfare.
Therefore, the commenter recommended
that proposed § 300.130{b)(2) be revised
to conform to section 104(a)(l) of
CERCLA. In response, although
"pollutant or contaminant" is defined for
purposes of the NCP to mean any
pollutant or contaminant that may
present an imminent and substantial
danger to public health or welfare (see
{ 300.5). EPA has made the requested
change for the purpose of emphasis.
Final rule: Proposed § 300.130 has
been revised as follows:
1. Section 300.130(a) has been revised
to begin "In accordance with CWA and
CERCLA,* ' *."
2. Section 300.130(b)(2) has been
revised to read: "Any hazardous
substance is released or there is a threat
of such a release into the environment,
or there is a release or threat of release
into the environment of any pollutant or
contaminant which may present an
imminent and substantial danger to the
public health or welfare; or"
Name: Section 300.135. Response
operations.
Proposed rule: This section describes
the responsibilities of the OSC/RPM to
direct response efforts and coordinate
all other efforts at the scene of a
discharge or release. This section
provides that the first federal official is
authorized to coordinate activities on-
scene and to initiate, in consultation
with the OSC, any necessary actions.
This official may also initiate Fund-
financed actions as authorized by the
OSC.
Response to comments: One
commenter stated that while it is
understood that specific response
actions for every situation cannot be
defined, guidance on how a response
escalates from local to federal levels
would be helpful. EPA believes that it is
not practicable to provide specific
guidance on how a response escalates
from local to federal levels, due to the
vast number of variables that are
implicit in every spill scenario.
Referring to § 300.135(b), one
commenter said that, regarding
expenditures from the various federal
funds, members of state pollution
response agencies should be given the
same scope of action as described in
§ 300.135(b) for the "first federal
official'-' to arrive on scene. The
commenter argued that state response
personnel are knowledgeable of "first
response" measures, as well as being
familiar with basic cost documentation
procedures. The commenter noted that
existing EPA and USCG procedures are
too cumbersome to allow negotiation of
a cooperative agreement or contract in
the initial hours of an emergency
response operation.
EPA acknowledges the fact that state
response personnel are knowledgeable
of first response measures as well as
basic cost documentation procedures.
EPA and USCG procedures may be
cumbersome in negotiating a
cooperative agreement, but these
procedures are necessary in order to
maintain control of the two pollution
funds. Under certain situations, the
states can be reimbursed for their costs
by the CWA 311(k) fund, in accordance
with USCG rules for managing this fund.
Another commenter suggested that,
for consistency, the authority of the first
federal official to arrive at the scene of a
release, which is discussed in
{ 300.135(b], should be discussed under
S 300.130 with the other authorizations
for the initiation of response. EPA
disagrees. This discussion is more
appropriate in § 300.135(b), because it
deals primarily with the coordination of
response activities on scene by the first
federal official.
One commenter indicated that, under
I 300.135(d), states should be
encouraged to enter into cooperative
agreements for removals under section
311 of the CWA or under CERCLA.
Although EPA supports the concept, it
does not feel it is necessary to add it as
a regulatory requirement. (See also
preamble section below on state
involvement in removal actions.)
Another commenter noted that the
requirement or expectation under
§ 300.135(e) that RPMs will consult with
the RRT should not be promulgated
unless the relationship between RPMs,
the NRT. and the RRT has been
clarified. In response, the relationship
between RPMs, the NRT, and the RRT
during remedial actions generally
parallels the relationship between
OSCs, the NRT, and the RRT during
removal actions. These relationships are
described in §§ 300.110, 300.115, and
300.120.
One commenter stated that
§ 300.135(f) and the definition of support
agency coordinator suggested that the
concept of support agency only applies
to CERCLA releases. If. so, the reference
to the OSC advising the support agency
for oil discharges, should be deleted.
EPA agrees. By definition, the support
agency coordinator "interacts and
coordinates with the lead agency for
response actions under subpart E of this
part." There is no designation of the use
of a support agency or support agency
coordinator under the CWA.
In § 300.135(h), one commenter asked
who defines "possible public health
threat." The commenter contended that
although it is necessary to have some -
broad language, misunderstandings can
be reduced by more definitive phrases.
The determination of a "possible
public health threat" is made by the
OSC/RPM in consultation with other
appropriate agencies. EPA believes that
§ 300.135(h) appropriately addresses this
point. This section specifically states
that assistance is available from the
Department of Health and Human
Services (HHS) in making the
determination of public health threats.
Under 5 300.135(1), one commenter
indicated that there should be a
requirement that the name of the office
designated by each federal agency to
coordinate response should be
submitted to the RRT for inclusion in the
regional contingency plan (RCP) and to
the OSC and State Emergency Response
Commission (SERC) for inclusion in
-------
8678 Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
local contingency plans (LCPs) and
Local Emergency Planning Committee
(LEPC) plans.
EPA believes that it is important that
this information be passed on to the
RRT and local response agencies.
However, it is not necessary to place
this requirement in the NCP. If it was,
EPA should require, through the NCP,
every facility, vessel, etc., to provide the
same information to the RRT and local
response agency. Through their normal
contingency planning process, this
information should be readily available
to the RRT and local response agencies.
A commenter noted that under
§ 300.135(m), it is not clear when it
would be appropriate for an RPM to
submit pollution reports to the RRT. In
response, EPA wishes to clarify that the
pollution reports described in
§ 300.135(m) are prepared for removal
actions; thus, these reports are generally
submitted by an OSC rather than an
RPM. EPA has deleted the reference to
"RPM" in this section.
Finally, it was commented that
§ 300.135(n), which requires that OSCs/
RPMs inform public and private
interests and consider their concerns
throughout the response, does not
address what kind of responses are
being referenced. Also, this section
should encourage appropriate public
and private interests to become
appropriately involved after the first
notification and not to expect the OSC
to keep them informed through updates.
In response, EPA believes that
specifying the type and size of the
incident response is not meaningful. All
incident responses require some kind of
communication between all public and
private parties. Regarding the second
part of the comment, EPA has no
authority to require the public and
private interests to contact the OSC for
information. Keeping the appropriate
interests informed by the OSCs/RPMs is
simply a policy issue and represents
good program practices.
Final rule: Proposed § 300.135 has
been revised as follows:
1. In § 300.135(f). the words
"discharges or" have been deleted.
2. Section 300.135(j) has been revised
to read as follows (see preamble
discussion on § 300.615 (notification)):
"The OSC/RPM shall promptly notify
the trustees for natural resources of
discharges or releases that are injuring
or may injure natural resources under
their jurisdiction. The OSC or RPM shall
seek to coordinate all response activities
with the natural resource trustees."
3. In § 300.135(m), the reference to
"RPM" has been deleted.
Name: Section 300.140. Multi-regional
responses.
Proposed rule: This section discusses
the procedures to follow in the event a
discharge or release covers more than
one jurisdictional area.
Response to comments: Commenters
noted that § 300.140 should clearly state
that the OSC responsible for the area in
which the release originated is initially
in charge. Changing OSCs can be
accomplished after this point. EPA
disagrees with the comments. Sections
300.140 (a) and (b) clearly outline OSC/
RPM responsibilities in spill situations
when more than one area will be
impacted.
Another commenter pointed out that,
in reality, the border between regions or
districts becomes a no-man's land in
which neither wishes to respond. While
there can only be one OSC, the other
affected regions/districts should have a
representative at the command post.
EPA disagrees with this comment
concerning command posts and,
therefore, has not changed the NCP. At
the time of the spill, a simple agreement
between the two predesignated OSCs or
RRTs can alleviate this problem.
Another commenter noted that the
NCP should reflect the fact that more
than one OSC can be designated if the
area impacted extends for many miles.
EPA disagrees. There should only be
one OSC coordinating the response
efforts. The OSC may, however, utilize a
number of OSC representatives to
handle the response efforts in the
outlying sections of a large spill area.
Final rule: Proposed § 300.140(c) is
revised to delete an inappropriate
reference to EPA/USCG agreements.
Name: Section 300.145. Special teams
and other assistance available to OSCs/
RPMs.
Proposed rule: This section describes
the special teams that are available to
the OSC/RPM and the availability of the
scientific support coordinator (SSC).
Response to comments: One
commenter stated that there is no
reason for the title of this section to be
changed from "Special Forces" to
"Special Teams." The change only
diminishes the role of the special forces.
EPA disagrees. The change does not
diminish the role of the special teams. It
merely places a title upon this group of
specialized teams that is more
commonly used (i.e.. Strike Teams.
Public Information Assist Teams,
Environmental Response Teams).
Another commenter indicated that it
may be appropriate to specifically
identify the ATSDR Public Health
Advisors and Emergency Response
Branch in this section as a special
resource available to an OSC, as their
availability is not well advertised. In
response, ATSOR's role is not the same
as that of a team, which is a unit
organized and specially prepared to
respond on call. ATSDR has both
specific authorities for response and
special expertise which might be called
upon by an OSC, and thus their role is
like those of other NRT member
agencies. These are outlined in
§ 300.170. Other means of highlighting
their availability, more appropriate and
effective than the suggested revision to
the NCP, would be to ensure that
ATSDR activities and availability are
referenced in local plans and OSC
plans.
A commenter stated that § 300.145(d)
should define the capabilities of an SSC
and include what they can be expected
to provide to the OSC. In response,
although the term SSC as used
throughout the NCP implies a single
individual, in the case of the National
Oceanic and Atmospheric
Administration (NOAA), this support is
in fact provided by a team of experts,
several of whom may be in the field at
the same time. This section has been
revised to reflect the capabilities of an
SSC.
Another commenter stated that an
OSC often requires more information
than is available from the responsible
party, the Technical Assistance Team
(TAT), or the SSC. Provided that the
responsible party is willing to pay for
additional scientific support, the OSC
should be allowed to utilize other
scientific experts without opening
federal accounts.
In response, the OSC is allowed to
utilize other scientific experts without
opening federal accounts, provided he/
she can convince the responsible party
to pay for them. In most situations, if a
particular resource is needed by the
OSC/RPM, the OSC/RPM will request
that the responsible party fund the
particular resources. If the responsible
party refuses, then the only other option
the OSC/RPM has is to fund the
resource using federal monies.
One commenter recommended that
the description of the EPA Radiological
Assistance Teams (RATs) in § 300.145(f)
should be moved to the general agency
descriptions in § 300.175(b)(2) or
deleted. If this reference is retained, the
commenter stated that something should
indicate how the Radiological Response
Coordinator is to be contacted. In
response, proposed { 300.145(f) stated
that the EPA Office of Radiation
Programs (ORP) maintains the
Radiological Assistance Teams. This
section also stated that the assistance of
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations 8679
Radiological Assistance Teams can be
obtained by contacting the Radiological
Response Coordinator. However, it is
not explicitly stated that the
Radiological Response Coordinator is
located and can be contacted in ORP.
EPA will make the clarification by
adding "* * * in the EPA Office of
Radiation Programs" after "Radiological
Response Coordinator." EPA believes
that it is more appropriate to reference
EPA's Radiation Program in § 300.145
rather than § 300.175 because the
reference directly relates to providing
assistance to the OSC/RPM.
Final rule: Proposed § 300.145 is
revised as follows:
1. Section 300.145(d) has been revised
to add the following sentence at the end
of the section: "In the case of NOAA,
SSCs may be supported in the field by a
team providing, as necessary, expertise
in chemistry, trajectory modeling,
natural resources at risk, and data
management."
2. In § 300.145(f), EPA has added
"* * * in the EPA Office of Radiation
Programs" after "Radiological Response
Coordinator," in the next to last
sentence.
Name: Section 300.150. Worker health
and safety.
Proposed rule: Section 300.150
requires that each employer at response
actions comply with the requirements of
the Occupational Safety and Health Act
of 1970, applicable state laws, and EPA
regulations regarding worker safety and
health. Section 300.150 applies to actions
taken either by a responsible party or a
lead agency and requires that there be
an occupational safety and health
program for the protection of workers at
the response site.
Response to comments: One
commenter recommended using the
Incident Command System (ICS)
concept as contained in the
Occupational Safety and Health
Administration (OSHA) rule to integrate
response activities. In response, EPA
notes that § 300.150(a) requires that
response activities meet the
requirements of 29 CFR 1910.120,
Hazardous Waste Operations and
Emergency Response, promulgated by
OSHA, including the ICS concept
(§ 1910.120(q)(3)(i)). Executive Order
12196 conveys the President's mandate
that federal agencies comply with
OSHA standards. State applicability is
covered as described below. Routine
hazardous waste operations do not
require use of ICS. Thus, no change is
needed in the rule, since if the situation
warranted use of the ICS concept, it
would already be covered within the
5 300.150(a) requirements of the NCP.
The responsibility for assuring worker
safety and health at a response scene is
that of the employer. This is stated
expressly in proposed § 300.150(a) (and
in final | 300.150(e)). One comment
indicated some confusion as to this
requirement, particularly regarding
firefighters involvement during response
actions. In response, worker safety and
health during response activities is
protected by the regulations cited in this
section, whether the workers are
employed by private employers, or
federal, state, or local governments.
Federal employees are covered by the
OSHA standards, as stated above. State
and local government employees in the
23 states and 2 jurisdictions which have
their own OSHA-approved occupational
safety and health plans are covered by
the state standards which must be
comparable to the federal standards.
These states are Alaska, Arizona,
California, Connecticut, Hawaii,
Indiana, Iowa, Kentucky, Maryland,
Michigan, Minnesota, Nevada, New
Mexico, New York (for state and local
government employees only), North
Carolina, Oregon, Puerto Rico, South
Carolina, Tennessee, Utah, Vermont,
Virginia, Virgin Islands, Washington,
and Wyoming. State and local
government employees (such as
firefighters) in the remaining 27 states
(such as Ohio, plus Guam and the
District of Columbia) are subject to EPA
regulations identical to OSHA standards
for response action.workers under
section 126 of SARA and 40 CFR part
311. The EPA rule will apply to
firefighters by March 6,1990 for
emergency response (and September 21,
1989 for other relevant activities).
One commenter suggested that
proposed § 300.150 be revised to state
that the OSC should be alert to unsafe
work practices and notify the regional
OSHA office when such practices are
observed. EPA agrees that the OSC may
be in a position to observe unsafe work
practices. However, no change is needed
because EPA believes that since
workplace safety and health conditions
are the responsibility of the employer,
unsafe practices should first be reported
to the appropriate employer because the
employer is in a position to make an
immediate correction. If the condition
remains uncorrected, it should be
reported to the appropriate enforcement
authority, whether it is federal OSHA,
state OSHA, or EPA.
Further, highlighting a special
responsibility for an OSC in this area
carries additional implications—if the
OSC fails to notice the violation, the
employer might see that as official
approval of his practice. Also, in
general, the NCP sets out an
organization and framework for
generally needed actions and
responsibilities, within which the OSC
has, and must have, latitude to exercise
his judgment. No section of the plan lists
all possible actions of an OSC, however
exceptional.
One commenter noted that the
National Contingency Plan (NCP)
requires CERCLA actions to directly
comply with OSHA standards (proposed
§ 300.150], rather than complying only to
the extent those standards are
"applicable or relevant and appropriate
requirements" (ARARs) under CERCLA
section 121(d)(2), 42 U.S.C. 9621(d)(2).
The commenter questioned why OSHA
standards should be treated differently
from other federal statutes.
In response, there are two principal
reasons for the treatment of OSHA
standards as non-ARARs in the NCP.
First, as discussed below, Congress
appears to have intended that certain
OSHA standards apply directly to all
CERCLA response actions. Second, EPA
believes that OSHA is more properly
viewed as an employee protection law
rather than an "environmental" law, and
thus the process in CERCLA section
121 (d) for the attainment or waiver of
ARARs would not apply to OSHA
standards.
However, before addressing those
issues in more detail, review of the
comment revealed an inconsistency in
the manner in which OSHA standards
are considered under the NCP. As the
commenter notes, proposed NCP
§ 300.150 directly requires CERCLA
actidhs to comply with certain OSHA
standards (e.g., 29 CFR parts 1910,1926)
(53 FR at 51489), while at the same time,
the preamble to the proposed rule
included most OSHA standards in
EPA's list of potential ARARs (53 FR at
51448). This situation requires
clarification, because requirements that
are promulgated as part of the NCP are
not evaluated for attainment or waiver
as part of the ARARs process.
As a threshold matter, EPA believes
that Congress intended certain OSHA
standards (those for response action
workers) to be always applicable to
CERCLA response actions. Pursuant to
mandates in CERCLA section lll(c)(6)
and SARA section 126, the Department
of Labor has promulgated regulations
that apply directly to worker safety
during hazardous waste operations and
emergency response actions, including
CERCLA actions:
(a) * * * (1) Scope. This section covers the
following operations * * * : (i) Clean-up
operations required by a governmental body,
whether federal, state, local or other
involving hazardous substances that are
-------
8680
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
conducted at uncontrolled hazardous waste
sites [including, but not limited to, the EPA's
National Priority List (NPL), state priority list
sites, sites recommended for the EPA NPL,
and initial investigations of government
identified sites which are conducted before
the presence or absence of hazardous
substance has been ascertained.
29 CFR 1910.120 (emphasis added).
Thus, these regulations apply
specifically to the response actions
detailed in the NCP, and compliance
with these standards is properly
required in the text of | 300.150.
Other OSHA standards, however, are
of general applicability and were not
developed specifically for CERCLA
response actions (e.g., OSHA
Construction standards. Shipyard
standards, Longshoring standards, etc.).
EPA believes that these general OSHA
standards are essentially workplace
standards, designed to cover
occupational exposures; they are
properly viewed as requirements of a
"federal environmental law," and thus
do not come within the scope of ARARs
under CERCLA section 121(d)(2).1
Rather, like the requirements of other
non-environmental laws, such
requirements would apply of their own
force, not through the CERCLA process.
Thus, OSHA standards are no longer
included on the list of potential ARARs.
The final NCP package (§ 300.150) has
been modified to reflect this approach,
which EPA believes is consistent with
both OSHA and CERCLA.
EPA does not believe that these
changes will reduce compliance with
OSHA standards at Superfund sites. The
OSHA standards for response action
workers will be met at every CERCLA
site, and the more general OSHA
standards will continue to be met where
they apply.
EPA notes that there are some
standards in OSHA that set
contaminant levels for the workplace
(see 29 CFR part 1910, subpart Z,
limitations on exposure to toxic and
hazardous substances) that may also be
relevant—although not applicable—to
the determination of a cleanup level at a
CERCLA site (due to the absence of
other standards). In such a case, those
standards may be included among the
requirements "To Be Considered"
(TBCs).
In addition, the following changes
were also made to proposed § 300.150.
The statement that "the OSH Act
' CERCLA »ection 121(d)(2] defines potential
ARARs as the standards, requirements, criteria or
limitations under "any Federal environmental law."
Note that the 1985 NCP—which did consider OSHA
requirements to be ARARs—defined ARARs as
"requirements of Federal public health and
environmental laws "
requirements can be enforced, as
appropriate, by the relevant federal or
state agencies," has been removed from
the final rule; although the statement is
correct, it is more appropriate for a
preamble discussion. Further on this
point, EPA notes that although OSHA
standards apply to the federal
government by Executive Order, they
are not independently enforceable
against the federal government; 2
accordingly, NCP § 300.150(c) has also
been revised to state that the lead
agency should make OSHA programs
available to response action employees,
consistent with and to the extent
required by 29 U.S-C. 1910.120.
The revisions to this section do not
reflect any reduced commitment for
compliance with applicable safety and
health requirements, or any reduced
responsibility for private employers to
comply with worker protection
standards.
Final rule: Proposed § 300.150 has
been revised to read as follows:
(a) Response actions under the NCP will
comply with the provisions for response
action worker safety and health in 29 CFR
1910.120.
(b) In a response action taken by a
responsible party, the responsible party must
assure that an occupational safety and health
program consistent with 29 CFR 1910.120 is
made available for the protection of workers
at the response site.
(c) In a response taken under the NCP by a
lead agency, an occupational safety and
health program should be made available for
the protection of workers at the response site,
consistent with, and to the extent required
by, 29 CFR 1910.120. Contracts relating to a
response action under the NCP should
contain assurances that the contractor at the
response site will comply with this program
and with any applicable provisions of the
OSH Act and state OSH laws.
(d) When a state, or political subdivision of
a state, without an OSHA-approved state
plan is the lead agency for response, the state
or political subdivision must comply with
standards in 40 CFR part 311. promulgated by
EPA pursuant to section 126(f) of SARA.
(e) Requirements, standards, and
regulations of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 651 et seq.)
(OSH Act) and of state laws with plans
approved under section 18 of the OSH Act
(state OSH laws), not directly referenced in
paragraphs (a) through (d) of this section,
must be complied with where applicable.
Federal OSH Act requirements include,
among other things, Construction Standards
(29 CFR part 1926), General Industry
Standards (29 CFR part 1910), and the general
duty requirement of section 5(a)(l) of the
OSH Act (29 U.S.C. 654(a)(l)). No action by
the lead agency with respect to response
activities under the NCP constitutes an
* Federal Emp. for Non-Smokers'Rights v. U.S.,
446 F.Supp. 181 (D.D.C. 1978), affd 598 F.2d 310
(D.CCir.), cert, denied, 444 U.S. 926.
exercise of statutory authority within the
meaning of section 4(b)(l) of the OSH Act.
All governmental agencies and private
employers are directly responsible for the
health and safety of their own employees.
Name: Section 300.155. Public
information and community relations.
Proposed rule: This section stated that
OSCs/RPMs and community relations
personnel should ensure that all
appropriate public and private interests
are kept informed when an incident
occurs. This section also stated that an
on-scene news office be established to
coordinate media relations and to issue
official federal information on an
incident.
Response to comments: A commenter
noted that there are three types of media
coverage during an emergency:
Newspapers, radio, and television. The
comment suggested that television is
most problematic to those responding to
an incident and that this section did not
address how to coordinate a response
with televised coverage of the incident.
In response, EPA believes that the
rule appropriately addresses the
responsibility to provide information
about an incident. It is not necessary or
appropriate to include details in the
NCP of different approaches to different
media. In a separate effort, however, the
NRT is considering additional guidance
and support for incident-specific
response teams in implementing public
information procedures.
Another commenter noted that the
community relations requirements
referenced in § 300.155 are all from
subpart E. The comment questioned
whether any community relations
requirements, other than those
specifically stated in | 300.155, apply to
responses to discharges of oil.
In response, § 300.155 appears in
subpart B, which is the basic
responsibility and organization for
response which underlies the entire
NCP, thus including response to
discharges of oil under subpart D. The
public information and community
relations requirements outlined in
{ 300.155 are those generally applicable
to all responses, and generally sufficient
for emergency or relatively short term
response actions such as those
encountered in oil responses as covered
in subpart D. Responses under subpart
E, however, include long term actions at
hazardous waste sites, and for these,
there are specific and detailed
requirements for community information
and involvement in decision-making
over the course of a response which may
include removal or remedial actions
carried out over a considerable period of
time. These community relations
-------
Federal Register / Vol. 55. No. 46 / Thursday, March 8. 1990 / Rules and Regulations 8681
provisions might be applicable in a long
term cleanup that followed an
emergency release, hence the cross
references linking the basic or minimal
requirement to the more detailed
program which is mandatory for long
term responses, but optional for
emergency or short term responses.
Final rule: EPA is promulgating the
rule as proposed.
Name: Section 300.160. Documentation
and cost recovery.
Proposed rule: Section 300.160
discusses the procedures for
documentation of cost recovery for a
response action. Section 300.160(a)
states that an accurate accounting of
federal, state or private-party costs
incurred for response actions can be
supported with an OSC report as
required by § 300.165 for all major
releases and Fund-financed removals.
Section 300.160(c) states that "Federal
agencies are to make resources
available, expend funds, or participate
in response to discharges and releases
under their existing authority," and
adds, "The ultimate decision as to the
appropriateness of expending funds
rests with the agency that is held
accountable for such expenditures" (53
FR 51490). Section 300.160(d) is a new
section of the proposed NCP
incorporating 1986 amendments to
CERCLA that state that responsible
parties are liable for the costs of any
health assessment or health effects
study conducted under the authority of
CERCLA section 104(i). In addition, the
preamble to the proposed NCP
discussion of § 300.160(d) detailed the
types of studies for which responsible
parties are held liable (53 FR 51402).
Response to comments: Several
commenters requested that EPA
elaborate in the preamble discussion of
§ 300.160 on what are "standard EPA
procedures for cost recovery" as stated
in the proposed rule (53 FR 51490), One
asked that EPA propose a list of
guidance documents for cost recovery
procedures. Another asked that EPA
make available its list of standard cost-
recovery procedures for public
comment. Another asked that EPA
circumscribe cost recovery to those
studies which are determined to be
appropriate or necessary. In a related
comment, one group asked that the NCP
clarify the scope of costs recoverable
and recognize that OSC reports are a
poor method of documenting those
costs. This commenter asked for
clarification on the involvement of the
RRT or NRT in cost—recovery activities
for remedial actions, and an explanation
given for their involvement. Another
asked that 5 300.160(a) apply to oil
discharges.
Most comments summarized above
requested discussion of procedures for
and staff participation in cost recovery
that more properly belongs in EPA
guidance rather than in the NCP. The
preamble to the proposed NCP
discussion of { 300.160(d) detailed the
kinds of studies that are eligible for cost
recovery. Including guidance documents
in the NCP, or including information
normally reserved for these guidance
documents, would produce an unwieldy
NCP, and require constant revision as
Agency guidance and policy procedures
change over time. In addition, EPA is
developing a regulation that will provide
for recovery of direct and indirect costs
under CERCLA. That rulemaking will
address the comments summarized
above.
Oil discharges are not included under
the provisions of § 300.160(a), but are
referred, through § 300.160(b), to
$ 300.315, the documentation and cost
recovery section of subpart D. The cost
recovery and documentation processes
for oil discharges are, by intent,
somewhat different from those for
hazardous substance release responses.
Including oil discharges under the
provisions of § 300.160(a) would subject
them to conflicting cost recovery and
documentation provisions. In addition,
oil spills are statutorily exempt from the
provisions of CERCLA, and come under
the authority of the CWA.
One commenter stated that granting
power to authorize expenditure of
federal funds to the agency responsible
for the response action represented
preferential treatment for federal
agencies who are PRPs that is not
extended to private parties.
In response, the purpose of § 300.160
is to describe authority for expenditures
in cases where federal agencies assist in
a non-federal response, such as a
coastal oil spill where no federal lands
are affected. Their activities may be a
mix of activities which they are required
to undertake under their own
authorities, and activities which they
undertake as requested in support of an
OSC (or RPM). The latter activities may
be reimbursed from the Fund, later to be
reclaimed from the potentially
responsible party (PRP) by the Fund-
managing agency. The commenter
appears to misinterpret this section as
applicable to situations when the
federal agency is itself a PRP. It is not. If
a federal agency were participating in a
response for which it was the
responsible party, no reimbursement
from the Fund would be allowed. These
provisions are amply covered in the
appropriate Fund-management
regulations. Thus, since there is no
preferential treatment allowed or
inferred for federal agencies over non-
federal PRPs, no change is necessary.
Final rule: Proposed § 300.160 is
revised as follows:
1. In § 300.160(a)(2), the cross-
reference to { 300.165 in the last
sentence is modified.
2. Proposed § 300.160(a)(3) is revised
as follows (see preamble discussion on
§ 300.615 (notification)): 'The lead
agency shall make available to the
trustees of affected natural resources
information and documentation that can
assist the trustees in the determination
of actual or potential natural resource
injuries."
Name: Section 300.165. OSC reports.
Existing rule: Section 300.40(a) of the
existing NCP requires the OSC to submit
to the RRT a complete report on a
response action within 60 days after the
conclusion of a response to a major
discharge of oil, or a major hazardous
substance, pollutant or contaminant
release, or when requested by the RRT.
Proposed rule: Proposed § 300.165(a)
requires the submission of the OSC
report within 90 days (rather than 60
days) of the conclusion of the response
action or when requested by the RRT.
Additionally, the RRT must review the
OSC report and forward a copy of the
report with the RRTs comments to the
NRT within 30 days of receiving the
OSC report.
Response to comments: Paragraph fa}:
A commenter recommended that OSC
reports be approved by EPA prior to
distribution to the RRT. EPA notes in
response that the NCP deals with the
distribution of OSC reports for the
purposes of the NRT/RRT/OSC national
response system. The OSC reports may
be used for individual agencies' own'
management information purposes as
well, but a primary purpose of these
reports is to allow prompt knowledge of
lessons learned, frank discussion of any
problems, and timely and effective
consideration of improvements or
cautions which need to be shared
throughout the system. Pre-screening by
EPA (or other agency providing the OSC
in question) would impede the
timeliness of such reports, and perhaps
diminish the immediacy of concerns
which are intended to be conveyed to
other responders. Thus, no change has
been made in response to this comment.
Another commenter recommended
that the OSC distribute the OSC report
to the state representative to the RRT.
This change is unnecessary. The state
representative to the RRT has access to
-------
8682
Federal Register / Vol. 55. No. 46 / Thursday, March 8. 1990 / Rules and Regulations
such reports through the mechanism set
up by each RRT to make OSC reports
available to each member of the RRT.
Therefore, the OSC would be
duplicating the mechanism already
created. In addition, there is no apparent
reason why the state representatives
should receive a copy of the OSC report
directly from the OSC while the other
members of the RRT receive a copy from
the RRT.
One commenter stated that the OSC
report deadline is unworkable because
the vast differences between response
actions and the degrees of complexity
that they may entail dictate that varying
amounts of time may be needed to
complete an OSC report. Cost recovery
actions, noted the commenter, may also
dictate a specific deadline for report
submission. The commenter also stated
that the original intent of this
requirement should be reexamined by
the NRT and the RRT. To address these
problems, the commenter recommended
that after-action reports be required
instead of OSC reports, and that no
deadline for these reports be imposed on
the OSCs. For those actions which are of
significant size or nature, or at the
request of the RRT or NRT, the
commenter recommended that the OSC/
RPM submit an executive summary
which addresses the four existing
requirements of the NCP. The
commenter suggested that the deadline
for this summary should be determined
by the NRT or the RRT requesting it.
Recognizing that OSCs have extensive
responsibilities and that response to
discharges or releases is a higher
priority than writing the OSC report,
EPA proposed to extend the deadline for
submission of the report from 60 days to
90 days after completion of the
response. After considering the
comments on this proposal, EPA agrees
with the commenter that even this
deadline for submission of the OSC
report may be unworkable. Therefore,
the final NCP now requires submission
of the report within one year of the
completion of removal actions or when
requested by the RRT. EPA believes that
the change provides needed flexibility
while ensuring that RRTs are able to get
reports sooner, if necessary. Although
the deadline has been extended, EPA
still expects that OSC reports will be
written as soon as practicable.
Generally, for removals of short
duration (e.g., lasting less than 30 days).
OSC reports should be available within
six months of completion of the removal
action because there is less to report.
EPA does not agree, however, that
cost recovery actions need dictate the
deadline for submission or the contents
of the report. The purpose of the OSC
report is to summarize the activities at
the site and the lessons learned. It
should be similar to the executive
summary described by the commenter
except that it should cover, briefly, all of
the topics listed in § 300.165(b). Detailed
information regarding day-to-day events
may be found in the administrative
record, the pollution reports, the site log
book, and the OSC log book. At the
completion of site activities, these
information sources are maintained in
the site file at the regional office. In the
event a detailed review of site activities
is necessary (e.g., for cost recovery
purposes), the information can be
obtained through the regional office. The
OSC report should not attempt to
include or duplicate all of this other
information but rather should reference
and summarize it.
One commenter stated that EPA
should broaden this section to apply to
situations other than "major" discharges
or releases. In response, EPA does not
agree that OSC reports should be
required for every action that responds
to a discharge or release. EPA notes,
however, that § 300.165 provides that
reports on response actions other than
to major discharges or releases will be
submitted when requested by the RRT.
One commenter noted that it is
unclear why § 300.165 involves RPMs if
it is limited to removal actions. In
response, RPMs are referenced in
§ 300.165 because removal actions
sometimes occur at NPL sites (e.g., a fire
may have started at a site where a
remedial action is planned or is being
conducted); therefore, the RPM may
actually submit the OSC report.
Paragraph (c): A comment relating to
5 300.165(c)(l)(viii) noted that in the
case of a large spill the damage
assessment process will continue
beyond the proposed 90-day time limit
for submission of the OSC report.
Therefore, the commenter states that
§ 300.165(c)(l)(viii) should include a
"qualifying statement" concerning
natural resource damage assessment
activity. In response, EPA notes that the
deadline for submitting OSC reports is
now one year. Moreover, the OSC report
need only observe that damage
assessment activity is ongoing despite
the conclusion of the response action. A
qualifying statement, therefore, is not
necessary.
One commenter argued that the OSCs
should not comment on natural resource
injuries or trustee activities. The
commenter believed that OSCs lack
expertise in natural resource Fields and
could inadvertently make statements
that might affect trustee efforts to
recover damages through litigation. The
commenter wanted paragraphs (vii) and
(viii) deleted from the OSC report format
in 5 300.165(c)(l). Another commenter
stated that the phrase "documentation
shall be sufficient to
provide * * * impacts and potential
impacts to the public health and welfare
and the environment" seems to imply
that damage assessment is an OSC
responsibility. The commenter argued
that responsibility for this complicated
process should rest with the federal
trustees, not with the OSC. The
commenter noted that this point should
be clarified in the NCP.
In response to the commenters that
expressed concern that OSCs would be
commenting on natural resource injuries
or conducting damage assessments of
natural resources, EPA believes that the
commenter misinterpreted the intent of
this requirement. OSCs are simply
documenting the notification to trustees
of natural resource damage or potential
damage and then listing any activities
taken by the trustees at the site. EPA
believes that it is an important
component of the report and does not
believe the requirement should be
eliminated. However, EPA does find that
the wording in § 300.165(c)(l)(vii) and
(viii) may be misleading and has
changed it in today's rule to more
accurately reflect the stated intent.
A comment relating to
§ 300.165(c){4)(iii) questioned if the OSC
is required to comment on plans
developed by LEPCs and SERCs under
section 303 of SARA, and recommended
that § 300.165(c)(4)(iii) be amended to
make it clear that OSCs should only
recommend changes if those plans are in
conflict with the OSC plans. In response.
EPA believes that § 300.165(c)(4)(iii)
does not require review of all section
303 plans. The subsection requires the
OSC to make recommendations relating
to the section 303 plans "as
appropriate." Such recommendations
are only appropriate if the section 303
plans are inconsistent with the NCP,
RCP or OSC plan since the OSC is not
authorized by any statute or regulation
to review section 303 plans.
Accordingly, the recommended change
seems unnecessary.
Final rule: Proposed $ 300.165 is
revised as follows:
1. The first sentence of $ 300.165(a)
has been changed from "Within 90 days
after completion of removal
activities * * *." to read: "Within one
year after completion of removal
activities * * *."
2. Section 300.165(c)(l)(vii) has been
changed to read: "Content and time of
notice to natural resource trustees
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations 8683
relating injury or possible injury to
natural resources."
3. Section 300.165(c)(l)(viii) has been
changed to read: "Federal or state
trustee damage assessment activities
and efforts to replace or restore
damaged natural resources."
Name: Section 300.170. Federal agency
participation.
Proposed rule: Proposed i 300.170
described general responsibilities of
federal agencies within the National
Response System.
Response to comments: Under
§ 300.170, a conunenter requested
clarification of the responsibilities of
federal agencies with respect to
reporting of releases of hazardous
substances, as compared to pollutants,
or contaminants or discharges of oil,
from facilities or vessels which are
under their jurisdiction or control. EPA
has revised this section to clarify the
applicable reporting requirements.
Final rule: Proposed § 300.170(c) is
revised as follows:
1. Section 300.170(c) has been
modified as follows: "All federal
agencies are responsible for reporting
releases of hazardous substances from
facilities or vessels under their
jurisdiction or control in accordance
with section 103 of CERCLA."
2. Section 300.170(d) has been added
as follows: "(d) All federal agencies are
encouraged to report releases of
pollutants or contaminants or discharges
of oil from vessels under their
jurisdiction or control to the NRC."
Name: Section 300.175 Federal
agencies: additional responsibilities and
assistance.
Existing rule: 40 CFR 300.23. This
section described federal agencies'
capabilities and expertise related to
preparedness planning and response,
consistent with agency capabilities and
legal authorities.
Proposed rule: The proposed revisions
emphasized the leadership roles of EPA
and the USCG, added the Nuclear
Regulatory Commission to the list of
federal agencies described, and revised
and updated some of the other agencies'
capabilities and expertise.
Response to comments: Paragraph (b):
A commenter suggested adding language
to § 300.175(b) regarding the staffing and
administration of the National Response
Center (NRC) by the USCG. It was also
suggested to add to each of the other
agency's organizational roles, language
concerning communication procedures
and specialized services and funding for
NRC operations.
In response, EPA has added a
description of the capabilities and
expertise of the NRC to § 300.175(b)(15).
EPA does not agree, however, that it is
necessary to add language regarding
organizational roles, communication
procedures, etc., to the descriptions of
the other federal agencies. Section
300.175 provides a brief generalized
description of individual agency's
expertise in preparedness planning or
response actions, consistent with their
legal authorities and capabilities. It is
not meant to cover specific details of
completing these activities. Further,
§ 300.125 has been revised to read: "The
Commandant, USCG, in conjunction
with other NRT agencies, shall provide
the necessary personnel,
communications, plotting facilities, and
equipment for the NRC." In addition, if
specialized services are needed by a
particular agency, this, along with any
appropriate funding, should be handled
by a memorandum of understanding.
A commenter recommended adding to
§ 300.175(b)(l), a reference to the Coast
Guard's authority to enter into
cooperative agreements pursuant to
section 311(c)(2)(H) of the CWA or
section 104(d) of CERCLA. EPA has
added such language.
One commenter questioned whether
entering into a contract or cooperative
agreement with the appropriate state in
order to implement a response action
applies only to remedial actions. If not,
the following statement is
recommended: "Coast Guard OSCs
should be included in negotiating
agreements for emergency responses."
In response, provisions of subpart B
(and thus "negotiating agreements or
contracts for response actions")
generally apply to both removal and
remedial actions; therefore, no change is
necessary. As a practical matter, in the
timeframe of an emergency response, or
urgent need for a removal action,
negotiating such an agreement for the
particular event or place might take
more time than the immediate situation
allowed. Generic standing agreements
for certain kinds of situations could be
negotiated in advance. In general,
however, proper contingency planning
can meet mutually satisfactory
emergency needs if state, local, and
OSC plans show the same agreed-upon
dispositions of resources and
responsibilities and provide for
appropriate levels of decision-making
covering various kinds of incidents.
Under § 300.175(b)(3), it was
recommended to add language to clarify
EPA responsibilities to address the
immediate short-term evacuations that
are often the norm in hazardous
chemical responses. EPA does not agree.
This appears to be a specific
responsibility which would be best
handled in a Federal Emergency
Management Agency (FEMA) policy or
guidance document.
Under i 300.175 (b)(4) and (b)(5), one
commenter requested clarification of the
specific responsibilities of Department
of Defense and Department of Energy
OSCs concerning releases of hazardous
substances, pollutants, and
contaminants, and discharges of oil. The
responsibilities of OSCs from all federal
agencies are the same, as described in
§ 300.120 and elsewhere in the NCP.
One commenter suggested that
language be added to § 300.175(b){4) to
clarify that consistent with CERCLA
section 120(e)(4)(A), the EPA
administrator has the ultimate authority
with respect to selecting remedial
actions for DOD facilities on the NPL.
While the suggested addition is correct,
EPA does not believe this section is the
appropriate place for it. This item will
be adequately covered in subpart K.
Another commenter suggested that
EPA add language to § 300.175(b){4) to
identify the availability of Army
Explosive Ordinance Demolition (EOD)
units (for explosives, nerve agents, etc.).
EPA believes that access to this
expertise is limited by DOD authorities
and should not be included.
Under § 300.175(b)(7), a commenter
suggested a change to add a reference to
the capabilities of the Department of
Commerce (DOC) with respect to
National Marine Sanctuary ecosystems.
EPA has made the suggested change.
Under § 300.175(b)(9)(i), a commenter
suggested a change to clarify the
responsibilities of the Fish and Wildlife
Service. EPA agrees with the suggested
change.
Under § 300.175(b)(10), a commenter
recommended expanding the section to
describe the Department of Justice's
(DOJ) role in litigation and the
information that DO] needs to negotiate
or pursue a court action. EPA does not
agree with the proposed change because
the NCP is not the appropriate document
for this purpose.
Final rule: Proposed § 300.175 is
revised as follows:
1. The following sentence has been
added to J 300.175(b)(l): "The USCG
may enter into a contract or cooperative
agreement with the appropriate state in
order to implement a response action."
2. Section 300.175(b)(7) has been
changed to add a reference to the
National Marine Sanctuary ecosystems.
3. Section 300.175(b)(9)(i) has been
changed to read as follows: "Fish and
Wildlife Service: Anadromous and
certain other fishes and wildlife,
including endangered and threatened
species, migratory birds, and certain
marine mammals; waters and wetlands;
-------
8684 Federal Register / Vol. 55, No, 46 / Thursday, March 8, 1990 / Rules and Regulations
contaminants affecting habitat
resources; and laboratory research
facilities."
4. Section 300.175(b)(15) has been
added describing the capabilities and
expertise of the National Response
Center.
Name: Section 300.180. State and local
participation in response.
Proposed rule: This section described
general responsibilities of state and
local governments for response
activities.
Response to comments: Paragraphs
(a} and(c): Under § 300.180(a), a
commenter suggested allowing each
RRT to determine an appropriate
number of seats to assign to each state
within its jurisdiction. EPA disagrees
with the suggested change. While it is
recognized that states may assign tasks
to a number of different state agencies,
it is imperative to have one
spokesperson for the state as the official
representative on the RRT. As many
state representatives as desired may
attend the RRT meetings. Under
§ 300.180(a), a commenter recommended
adding "OSC" in addition to RPM for
state-lead response actions. EPA agrees
with the recommended change.
Another comment asked two
questions: Under § 300.180(c), what is
meant by facilities not subject to
response actions under the NCP, and is
this section consistent with § 300.3(a)(2).
In response, EPA agrees that the two
cited sections should be consistent, and
is revising the language in § 300.180(c) to
read: "For facilities not addressed under
CERCLA * * *."
Paragraph (d): One commenter
indicated that the NCP should enable
federal facilities to issue cooperative
agreements to states to carry out
remedial investigation, feasibility study,
remedial action and remedial design
activities. It was suggested that
§ 300.180(d) be modified to provide for
this. EPA recognizes that federal
agencies may cooperate with states in
completing federal facility response
activities. This will be adequately
covered in subpart K and does not need
to be included in this section.
Paragraph (e): Under § 300.180(e). a
commenter recommended that state and
local public safety organization
response efforts should be consistent
with containment and cleanup
requirements in the NCP. EPA agrees
and has made the recommended change.
Final rule: Proposed § 300.180 is
revised as follows:
1. The first sentence of § 300.180(c) is
revised to read: "For facilities not
addressed under CERCLA
2. Section 300.180(e) has been changed
as follows: "Because state and local
public safety organizations would
normally be the first government
representatives at the scene of a
discharge or release, they are expected
to initiate public safety measures that
are necessary to protect public health
and welfare and that are consistent with
containment and cleanup requirements
in the NCP, and are responsible for
directing evacuations pursuant to
existing state or local procedures."
Name: Section 300.185.
Nongovernmental participation.
Proposed rule: Proposed 5 300.185,
based on existing § 300.25, encouraged
involvement by industry groups,
academic organizations and others in
response operations. This section also
specified that contingency plans should
provide for the direction of volunteers
by the OSC or other federal, state or
local officials.
Response to comments: A commenter
suggested changing § 300.185 so that the
OSC/RPM does not have the discretion
to involve volunteers in on-site activities
associated with hazardous substance
response operations. EPA disagrees with
this suggestion. This section provides
adequate safeguards for the use of
volunteer personnel, including
restrictions from on-scene operations as
necessary.
A change was suggested to make this
section consistent with the authority of
the scientific support coordinator (SSC)
as stated in § 300.145(d)(2). EPA agrees
• and has made the change.
A commenter requested that the NCP
further define strategies for dealing with
cases involving multiple authorities.
EPA disagrees with the recommended
change. The situations involving
multiple jurisdictions and authorities
should be handled under the appropriate
contingency plan, i.e., the RCP or OSC
plan.
Final rule: The last sentence of
proposed § 300.185(b) has been changed
to read as follows: "The SSC may act as
liaison between the OSC/RPM and such
interested organizations."
Subpart C—Planning and Preparedness
Historically, the NCP has provided for
federal planning and coordination
entities and for federal contingency
plans. Although there has previously
been no federal requirement for state
and local planning, the NCP has always
provided for coordination with such
entities and plans where they exist.
However, SARA Title III now requires
the development of a state and local
planning structure and local emergency
response plans.
Title III provides the mechanism for
citizen and local government access to
information concerning potential
chemical hazards present in their
communities. This information includes
requirements for the submission of
emergency planning information,
material safety data sheets and
emergency and hazardous chemical
inventory forms to state and local
governments, and for the submission of
toxic chemical release forms to the EPA.
Title III also contains general provisions
concerning local emergency response
plans to be developed by local
emergency planning committees
(LEPCs), emergency training, review of
emergency systems, trade secret
protection, providing public access to
information, enforcement, and citizen
suits. Regulations implementing Title III
are codified at 40 CFR subchapter J. EPA
will reference Title III and these
regulations in subpart C where
appropriate.
The proposed NCP states that in
developing OSC contingency plans, the
OSCs shall coordinate with State
Emergency Response Commissions
(SERCs) and Local Emergency Planning
Committees (LEPCs) affected by the
OSC area of responsibility. The OSC
plans shall provide for a well
coordinated response that is integrated
and compatible with all appropriate
response plans of state, local and other
non-federal entities, and especially with
Title 111 local emergency response plans.
The following sections discuss
comments received on the proposed
subpart C and EPA's responses.
Name: Section 300.200. General.
Existing rule: Subpart D—Plans
(§ 300.41). Subpart D of the 1985 NCP
required that, in addition to the National
Contingency Plan (NCP), a federal
regional plan be developed for each
standard federal region, Alaska, and the
Caribbean, and, where practicable, a
federal local (i.e., OSC) plan also be
developed. The purpose of these plans is
coordination of a timely, effective
response by various federal agencies
and other organizations to discharges of
oil and releases of hazardous
substances, pollutants and .contaminants
in order to protect public health,
welfare, and the environment.
Proposed rule: The equivalent section
to subpart D in the 1985 NCP, is found in
subpart C of today's rule. This subpart
summarizes emergency preparedness
activities relating to oil, hazardous
substances, pollutants and
contaminants; describes the federal,
state, and local planning structure;
provides for three levels of federal
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations 8685
contingency plans; and cross-references
state and local emergency preparedness
activities under SARA Title III.
Response to comments: A commenter
stated that the planning activities
referred to in subpart C apply to both oil
and hazardous substances response
activities, not to "hazardous chemicals
and substances only" as provided in the
proposed rule. EPA agrees with this
commenter. As stated in the 1985 NCP,
all federal, state, and local contingency
plans must deal with emergency
preparedness and response activities
related to discharges of oil and releases
of hazardous substances, pollutants, or
contaminants.
Final rule: Section 300.200 is revised
to read, "This subpart summarizes
emergency preparedness activities
relating to discharges of oil and releases
of hazardous substances, pollutants, or
contaminants * * *".
Name: Section 300.205. Planning and
coordination structure.
Proposed rule: The SERC in each state
is to establish local planning districts,
appoint LEPCs, and supervise/
coordinate their activities. The SERC
must also establish information
management procedures and appoint an
individual to serve as the coordinator
for the information.
Response to comments: A few
commenters suggested that § 300.205{c)
make reference to § 300.115(h) to ensure
coordination of the RRT with the SERC.
Section 300.205(b) references § 300.115
as the description of the RRT's
responsibilities. Section 300.115(h) states
that the state's RRT representative
should coordinate with the SERC. Since
it has already been stipulated that the
RRT as part of their responsibility
coordinate with the SERC, there is no
need to reiterate that statement in
§ 300.205(c).
Final rule: EPA is promulgating the
rule as proposed.
Name: Section 300.210. Federal
contingency plans.
Proposed rule: This section describes
the three levels of federal contingency
plans and makes reference to Title III
plans. See also general description in
introduction above.
Response to comments: 1. SARA Title
HI. Several commenters suggested that
all references to SARA Title HI should
be eliminated from the NCP in that
SARA Title III establishes new,
completely separate requirements to
report to state and local emergency
planning officials, which are totally
unrelated to the CERCLA process.
Another commenter, however,
supported the complete incorporation
and integration of Title III provisions
with other notification, spill prevention
and preparedness sections in the NCP.
One commenter recommended that EPA
make a clear distinction between the
NCP preparedness activities and Title III
requirements.
A major objective of both the NCP
and SARA Title III is to increase public
protection by developing response plans
to deal with releases of oil and
hazardous substances to the
environment. Eliminating from the NCP
all references to SARA Title III could
lead to duplication of effort by federal,
state and local governments regarding
contingency planning. It could also
cause confusion because the NCP would
not provide a complete picture of the
federal/state/local planning structure.
2. Clarification of coordination
procedures. Some comments stated that
the NCP should be revised to include
procedures for coordinating emergency
response planning amongst LEPCs,
OSCs, RRTs and the NRT. EPA has
considered this comment and is not
including such language in the final rule.
The NCP is not intended to be a detailed
procedural guidance document and such
coordination should be left to the
discretion of the coordinating parties to
provide greatest flexibility to address
regional, state and local variations.
Other guidance on planning and plan
coordination is available, e.g.
"Hazardous Materials Emergency
Planning Guide," National Response
Team, NRT-1 (March 1987), "Criteria for
Review of Hazardous Materials
Emergency Plans," National Response
Team, NRT-1 (May 1988) and
"Technical Guidance for Hazards
Analysis," EPA, DOT and FEMA
(December 1987), through the National
Response Team (NRT) member
agencies.
3. Natural resources trustees and
DOD and DOE OSCs. A few
commenters suggested that § 300.210 be
expanded to require that natural
resources trustees and DOD and DOE
OSCs be identified. Section 300.210
states that "RCPs [Regional Contingency
Plans] shall follow the format of the
NCP and coordinate with state
emergency response plans, OSC
contingency plans, * * *". The NCP and
OSC contingency plans stipulate that
the trustees of natural resources, as well
as DOD and DOE OSCs, should be
identified. Therefore there is no need to
further state that in { 300.210.
4. OSC jurisdictional boundaries.
Another commenter stated that
determining the OSC jurisdictional
boundaries based on Title III district
boundaries is not appropriate. EPA
agrees. The language in the proposed
NCP reads that "jurisdictional
boundaries of local emergency planning
districts * * * shall, as appropriate be
considered in determining OSC areas of
responsibilities." Thus, the proposed
NCP does not require the OSC
jurisdictions to be based on Title ffl
local planning district boundaries, and
there will be no change in the final rule.
5. Coordination of RRT, OSC and
LEPCplans. A few commenters feel that
it would be burdensome for RRTs or
OSCs to coordinate their plans with the
Title III local emergency response plans.
They feel the drafters of Title III local
emergency response plans should
ensure that their plans coordinate with
the OSC and RRT plans.
Other commenters recommended that
the RRT be encouraged to advertise the
availability of copies of the RCP to local
emergency planning committees. One
commenter suggested that the state
should ensure the coordination of local
plans with the OSC plan. Another stated
that the NCP should be revised to
indicate that drafters of Title III local
plans should coordinate their plans with
federal plans, not the other way around.
Finally, another commenter noted that,
for consistency, procedures for a LEPC
to submit a plan to the RRT for review
should be included in § 300.215(d), and
that these procedures should require
submission through the SERC. ~
EPA considers the coordination'of the
OSC plans with the Title III plans to be
important. OSCs must be
knowledgeable of local response groups
and their response capabilities in order
to prepare reliable and useful plans and
to respond to incidents in their districts.
The jurisdiction of some OSCs may
include several Title III local planning
districts, and the OSCs must ensure that
their plans do not conflict with, but
complement the Title III plans. A few
people commented that language should
be added proposing that the Title III
local planning committees coordinate
their plans with those of the OSCs.
Section 300.215(a) already includes such
language.
EPA also believes that the
coordination through the SERC of
regional plans with the Title III plans, to
the greatest extent possible, is
fundamental to the planning process.
Final rule: Proposed { 300.210(b) is
changed to add the following sentence
before the last sentence: "Such
coordination should be accomplished by
working with the SERCs in the region
covered by the RCP."
Name: Section 300.215. Title III local
emergency response plans.
Proposed rule: See general description
in introduction above.
-------
8686 Federal Register / Vol. 55, No. 46 / Thursday. March 8. 1990 / Rules and Regulations
Response to comments: A commenter
stated that $ 300.215 should be revised
to include comments regarding non-
catastrophic event response. EPA
disagrees with this commenter since
Title III addresses all releases,
catastrophic as well as non-
catastrophic. Section 304 of Title III
requires the reporting of releases in
excess of a reportable quantity of an
extremely hazardous substance or a
CERCLA hazardous substance to the
SERC, LEPC, and the NRC (where
appropriate). These federal, state, and
local officials will then respond to that
report as appropriate.
Another commenter suggested that
$ 300.215 should be expanded to include
procedures for a LEPC to submit a plan
to the RRT for review. EPA has
considered this comment and is making
a revision in the final rule.
Final rule: Proposed § 300.215 is
revised as follows:
1. Section 300.2l5(d] is revised to add
the following last sentence: "This
request should be made by the LEPC,
through the SERC and the state
representative on the RRT."
2. In the first sentence of
§ 300.215(e)(2], the phrase "to the SERC,
LEPC and the local fire department" has
been added.
Name: Indian tribes under Title III.
Proposed rule: The preamble to
proposed subpart A stated that EPA is
proposing to include Indian tribes in the
definition of "state," except for purposes
of Title III, or where specifically noted
in the NCP.
Response to comments: Several
commenters disagreed with excluding
Indian tribes from being treated like
states under Title HI. These commenters
encouraged EPA to allow tribal
participation in this program because if
the tribes do not become involved as
governments in emergency response
planning, the potential for harm to the
reservation population and environment
increases. These commenters also
mentioned that EPA should allow tribes
to participate as governments in Title III
programs because tribes can be an
important link in emergency planning
and could be important in planning the
appropriate response actions. These
commenters recommended that EPA use
its discretion to allow tribal
participation under Title III on a
government-to-government basis. Indian
tribes wishing to develop local planning
structure and local emergency response
plans should be allowed to participate
in Title III planning on the same basis as
states.
In response, EPA notes that on March
29,1989 (54 FR 12992), EPA proposed
that Indian tribes be the designated
implementing authority for Title III on
all lands within "Indian country" as
defined in 15 U.S.C. 1151. When this
proposed rule becomes final, Indian
tribes will, by rule, be included in the
definition of "state" for the purposes of
Title HI.
Final rule: There is no rule language
on this issue.
Subpart D—Operational Response
Phases for Oil Removal
Subpart D contains only minor
revisions to the existing subpart E. The
following sections discuss comments
received on the proposed subpart D and
EPA's responses.
Name: Section 300.300. Phase I—
Discovery or notification.
Proposed rule: This section describes
the ways in which an oil discharge may
be discovered and requires that reports
of all discharges be made to the NRC.
Alternative notification to the
appropriate USCG or EPA
predesignated OSC or the nearest USCG
unit is permitted if immediate
notification to the NRC is not
practicable. This section also requires
that immediate notification to the NRC
be included in regional and local
contingency plans. Upon notification of
an oil discharge, the NRC must promptly
notify the OSC who, in turn, will
proceed with the additional response
phases outlined in this subpart.
Response to comments: One
commenter asserted that the addition of
the EPA predesignated OSC as a contact
through the regional 24-hour emergency
response telephone number is
unnecessary and should be deleted. The
commenter went on to say that a single,
all encompassing notification system
must be established in the NCP so the
federal government can be efficient and
effective in its response actions. The
concept of a single point of contact for
reporting all environmental incidents
throughout the United States is well
established under the FWPCA and
CERCLA. According to this commenter,
with one telephonic notification to the
NRC, many responsible parties fulfill
several federal regulatory reporting
requirements. If a responsible party can
telephonically call EPA's 24-hour
emergency number, then why can they
not simply call the NRC. The
requirement to call EPA's 24-hour
number simply confuses and
complicates the reporting requirements.
While EPA agrees that there should
be a single notification system for
discharges of oil, EPA believes that it is
important to make available reasonable
alternatives for reporting oil spills that
are limited to the rare circumstances
where it is not possible to contact the
NRC. Furthermore, it is the opinion of
EPA that the condition, "if direct
reporting to the NRC is not practicable,"
is not ambiguous. It should be
emphasized that reporting to the USCG
or EPA predesignated OSCs or the 24-
hour EPA regional emergency response
telephone number are interim measures,
and all reports shall be promptly relayed
to the NRC by the discharger.
One commenter recommended that
the "notification" language used in
subpart D for Oil Removal (f 300.300
and in subpart E for Hazardous
Substance Response (§ 300.405)) should
be identical asserting that this will limit
confusion and make reporting of
incidents that are both oil and
hazardous substance simple. The
commenter added that there is no need
for the oil industry to determine, before
notification, whether a spill will be
interpreted to fall within the petroleum
exclusion and recommended new
language for §i 300.300 and 300.405.
Another commenter recommended
rewriting the Discovery or notification
section to accurately reflect the
notification requirements for different
types of discharges as mandated by
statute adding that the procedures that
the NRC and OSC must follow should be
separate from the requirements of the
discharger so as not to confuse the
reader.
EPA believes that the notification
provisions of subparts D and E, as
proposed, are consistent except for
necessary differences driven by
statutory and programmatic
requirements. EPA also believes that the
concept of a single point of contact for
reporting all oil and hazardous
substance spills is preserved. Therefore,
in today's final regulation, § 300.300
remains largely unchanged from the
proposed rule.
Final rule: The last two sentences in
$ 300.300{b) are revised as follows (see
discussion in preamble section on
§ 300.125 on editorial revision to
§ 300.300(b)):
"If it is not possible to notify the NRC
or predesignated OSC immediately,
reports may be made to the nearest
Coast Guard unit. In any event, such
person in charge of the vessel or facility
shall notify the NRC as soon as
possible."
Name: Section 300.305. Phase II—
Preliminary assessment and initiation of
action.
Final rule: Proposed § 300.305(d) is
revised as follows (see preamble section
on $ 300.615 (notification)):
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations 8687
"If natural resources are or may be
injured by the discharge, the OSC shall
ensure that state and federal trustees of
affected natural resources are promptly
notified ih order that the trustees may
initiate appropriate actions, including
those identified in subpart G. The OSC
shall seek to coordinate assessments,
evaluations, investigations, and
planning with state and federal
trustees."
Name: Section 300.310. Phase Ill-
Containment, countermeasures, cleanup
and disposal.
Proposed rule: This section requires
that the OSC initiate defensive actions
as soon as possible to prevent,
minimize, or mitigate the threat to the
public health or welfare or the
environment. These actions may include
controlling the source of the discharge;
initiating salvage operations;
deployment of physical barriers to deter
the spread of the oil; and the use of
chemical or biological countermeasures
in accordance with subpart ], to restrain
the spread of the oil and mitigate its
effects. This section directs the OSC to
choose oil spill recovery and mitigation
methods that are most consistent with
protecting the public health and welfare
and the environment. Sinking agents are
specifically prohibited. This section
requires that recovered oil and
contaminated materials be disposed of
in accordance with federal regional and
local contingency plans.
Response to comments: A commenter
noted that § 300.310(c) states that "oil
and contaminated materials recovered
in cleanup operations shall be disposed
of in accordance with the RCP and OSC
contingency plan and any applicable
laws, regulations, or requirements." If
the purpose of this paragraph is to
require that the disposal of cleanup
materials meet applicable or relevant
and appropriate requirements (ARARs),
the commenter recommended that
ARARs should be substituted for
"applicable laws, regulations, or
requirements". Language similar to
§ 300.400(g) should then be added to aid
in the identification of ARARs for oil
removal.
The purpose of this paragraph is not
to require that the disposal of oil-
contaminated cleanup materials meet
ARARs. Language that could be
interpreted to the contrary inadvertently
appeared in the preamble to the
proposed regulation. ARARs, as
required by CERCLA section 121, apply
to remedial actions responding to
releases of hazardous substances, the
definition of which excludes "oil."
CERCLA sections 101(14) and 101(33).
The response to oil discharges is
provided by section 311 of the Clean
Water Act.
Final rule: EPA is promulgating
§ 300.310 as proposed.
Name: Section 300.315. Phase IV—
Documentation and cost recovery.
Proposed rule: This section requires
the collection and maintenance of
documentation to support actions taken
under the CWA and to form the basis
for cost recovery.
Final rule: Proposed § 300.315 is
revised as follows:
1. The cross-references to the USCG
Marine Safety Manual and 33 CFR part
153 in the last sentence of § 300.315(a)
are modified.
2. The following sentence is added to
proposed § 300.315(c) (see preamble
discussion on § 300.615): "The OSC shall
make available to trustees of the
affected natural resources information
and documentation that can assist the
trustees in the determination of actual or
potential damages to natural resources,"
Name: Section 300.320. General
pattern of response.
Proposed rule: This section describes,
in general, the actions to be taken when
a report of a discharge is received.
Final rule: The phrase "rehabilitating
or acquiring the equivalent of * * *"
has been added to § 300.320(b)(3)(iii) in
order to be consistent with CWA
section 311(f)(5).
Name: Section 300.330. Wildlife
conservation.
Proposed rule: This section describes
coordination of professional and
volunteer groups to participate in
waterfowl dispersal, collection,
cleaning, rehabilitation and recovery
activities.
Response to comments: A commenter
suggested that the more encompassing
term "wildlife" be used in this section
rather than "waterfowl." EPA agrees
and has made the change.
Final rule: EPA has revised proposed
§ 300.330 to use the term "wildlife"
rather than "waterfowl."
Subpart E—Hazardous Substance
Response
The Hazardous Substance Response
subpart contains a detailed plan
covering the entire range of authorized
activities involved in abating and
remedying releases or threats of
releases of hazardous substances,
pollutants, or contaminants. EPA is
making major revisions to the hazardous
substance response authorities included
in the NCP. The revisions implement the
1986 amendments to CERCLA and
incorporate additional requirements
deemed necessary and appropriate
based on EPA's management of the
Superfund program. The NCP
reorganizes the sections of the subpart
to coincide with the general order of
established procedures during response.
Specifically, EPA is expanding current
§ 300.62 on the state role into a separate
subpart (new subpart F), which
incorporates the new state involvement
regulations; the entire discussion now
appears after subpart E. EPA is also
revising and reformatting current
§ 300.67 on community relations so that
it is no longer a separate section but is
incorporated into the other sections as
appropriate. Furthermore, EPA is
renaming and reorganizing the sections
in subpart E as follows:
§300.400 General
§ 300.405 Discovery or notification
§ 300.410 Removal site evaluation
§ 300.415 Removal action
§ 300.420 Remedial site evaluation
§ 300.425 Establishing remedial
priorities
§ 300.430 Remedial investigation/
feasibility study (RI/FS) and selection
of remedy
§ 300.435 Remedial design/remedial
action, operation and maintenance
The following sections discuss major
comments received on the proposed
subpart E and EPA's responses.
Responses to other comments are
included in the support document to the
NCP.
Section 300.400. General.
Name: Section 300.400(d)(3).
Designating PRPs as access
representatives. Section 300.400(d)(4)(i).
Administrative orders for entry and
access.
Proposed rule: Section 300.400(d)(4)(i)
provides that EPA or any appropriate
federal agency, by the authority granted
them in CERCLA section 104(e)(5), can
issue an administrative order to secure
entry and access to a site where the site
owner does not give consent to entry or
access. Section 300.400(d)(3) adds
language that allows EPA to designate a
PRP as its representative solely for the
purpose of access, through CERCLA
section 104(e), but only in cases where
the PRP is conducting a response action
pursuant to an administrative order or
consent decree. This does not create
liability in the federal government or
limit EPA's right to ensure a proper
remedial investigation/feasibility study
(RI/FS).
Response to comments: Most
commenters expressed support for
§ 300.400(d)(3), authorizing the agency to
designate a PRP as its representative for
access to a site, and concurred that such
-------
8688
Federal Register / Vol. 55. No. 46 / Thursday. March 8, 1990 / Rules and Regulations
designation would help ensure
cooperative PRPs access to a site owned
or operated by a recalcitrant PRP.
Disparate comments were received on
§ 300.400(d)(4)(i). EPA received
comments stating that PRPs should be
provided access to Fund-lead and state-
lead sites to allow them to conduct their
own testing and sampling in order to
respond knowledgeably to an EPA
remedial action proposal or to prepare
an adequate defense. One commenter
suggested that PRPs should be afforded
the same unrestricted access to a site
that is afforded the lead agency.
Another suggested that entry and access
should be afforded any PRP that
voluntarily conducts a response action,
and not be contingent upon the PRP
entering into a consent order or decree.
A third suggested that the NCP
distinguish between entry and access to
abandoned hazardous waste sites and
sites with active, operating businesses.
They proposed limitations on entry and
access by a lead agency and on the lead
agency's ability to grant others entry
and access to such ongoing commercial
sites to prevent major disruptions of
business. A final commenter proposed
that DOD, as lead agency, should be
granted the authority to deny state
agents access to DOD vessels.
EPA opposes unrestricted access to a
site by PRPs for several reasons.
Unsupervised access, sampling and
testing would present a potential health
hazard to those on the site or residing
near it. Unrestricted access could slow
cleanup by disrupting authorized on-site
activities. EPA further believes that the
proper opportunity for access and
sampling is afforded when PRPs are
given the chance to conduct the RI/FS.
Finally, a great deal of information
about the site is already made available
to PRPs and others through the
administrative record for the site.
The statute makes no distinction
between entry and access at abandoned
sites and sites of operating businesses in
conducting response actions. Protecting
human health and the environment is
EPA's first priority when it gains access
to a site. Protecting private commercial
and industrial enterprises from
interruption may also be considered in
certain circumstances where there is no
effect on EPA's accomplishment of its
primary purpose to protect human
health and the environment. EPA has
clarified this section, however, to make
it clear that one or more PRPs, including
representatives, employees, agents and
contractors of PRPs may be designated
as the lead agency's representative. EPA
has also clarified that EPA or the
appropriate federal agency may request
the Attorney General to commence a
civil action to compel compliance with a
request or order for access.
Finally, the statute does not recognize
the "uniqueness" of DOD's authority as
a lead agency when granting site entry
and access to any "state or political
subdivision under contract or
cooperative agreement" with EPA under
CERCLA section 104(e){l). Of course,
the President may issue site-specific
orders under CERCLA section 120(j)
regarding response actions at
Department of Defense or Energy
facilities as necessary to protect
national security.
Final rule: Proposed § 300.400(d) is
revised as follows:
1. The language in proposed
§ 300.400(d)(2)(ii) on where the authority
to enter applies is reordered.
2. Proposed § 300.400{d)(3) is revised
to clarify that one or more PRPs,
including representatives, employees,
agents and contractors of PRPs, may be
designated as the lead agency's
representative.
3. Proposed § 300.400(d)(4)(i) is
revised to state that EPA or the
appropriate federal agency may request
the Attorney General to commence a
civil action to compel compliance with a
request or order for access. Also, the
phrase "or if consent is conditioned in
any manner" is added to this section.
Name: Sections 300.5 and 300.400(e).
Definition of on-site.
Proposed rule: Section 300.400(e)
states that the term "on-site" for
permitting purposes shall include the
area! extent of contamination and all
suitable areas in very close proximity to
the contamination necessary for
implementation of the response action.
Response to comments: 1. Definition
of on-site. Many commenters supported
the proposed definition of on-site
because it ensures flexibility in the
design and construction of response
actions, provides for expeditious
cleanup of sites, and potentially
provides significant cost savings. The
commenters believed that the four
alternative definitions described in the
preamble were too restrictive and
imposed various constraints on EPA that
would delay and needlessly complicate
actions at sites. One commenter noted
that the RI/FS process, including the
mandatory public participation aspects,
is the functional equivalent of the
permitting process. Another commenter
requested that the permit waiver in
existing NCP § 300.68 for actions under
CERCLA section 106 be retained.
Other commenters generally
supported the proposed definition but
requested some modifications. Several
questioned using "very" in the
requirement that suitable areas adjacent
to the site be in very close proximity to
the contamination. Some suggested in its
place the phrase "* * * which are both
as close as practical to the
contamination * * *." One commenter
assumed that EPA was trying to
establish a principle of practical
effectiveness, i.e., that the area of
contamination and the area in which
response activities occur are sufficiently
related in practice that they should be
treated as one site under the permit
exemption. This commenter requested
further elaboration on this.
One commenter requested that the
term "areal" be clarified to distinguish
surface area from the atmosphere.
Another requested that the definition
should specifically mention that the
permit exemption applies during
investigations as well as implementation
of the response action.
One commenter urged that the permit
exemption not be applied to
construction of new disposal units in
previously uncontaminated areas. The
commenter stated that it is good policy
to discourage new units in
uncontaminated areas. Other
commenters recommended that on-site
should include all areas affected by
contamination, whether at a discrete
location or through transport of
contaminated soils or ground-water
plume migration.
Some commenters supported the
alternative interpretations described in
the preamble to the proposed rule.
Several commenters favored defining
on-site as identical to a CERCLA
facility. One commenter stated that this
definition of on-site should provide that
all treatment performed on-site refers to
the entire facility, and is not limited to
the specific operating unit or area of
contamination. This commenter also
recommended that the permit exemption
be broadened to induce private parties
to voluntarily implement the required
CERCLA actions.
Another commenter favored defining
on-site the same as CERCLA facility
because Congress intended to limit
unpermitted activities to on-site areas.
not near-site areas. One commenter
suggested combining the proposed
definition with the alternative definition
equating on-site to CERCLA facility. The
commenter believed that this would be
consistent with the use of these words
throughout the NCP and with the
statutory definition of facility.
One commenter protested that the
scope of the proposed definition was too
broad and beyond statutory intent. This
commenter contended that the proposed
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8689
definition enabled EPA to unjustifiably
usurp state permit laws. The commenter
requested that the definition of on-site
be limited to the contiguous area having
the same legal ownership as the actual
sile of the release but in no event should
it extend beyond the areal extent of
contamination. The commenter also
argued that the statute provides that the
permit exemption applies only after a
remedy is selected in accordance with
section 121. The commenter also
requested that if the proposed language
in § 300.400{e)(l) is retained, the
language "on-site * * * shall
include * * *" should be modified to
read "on-site * * * means." The
commenter believed that the proposed
language was over-expansive.
Another commenter generally
supported the proposed definition but
requested that EPA clarify that the
scope of "on-site" for permitting
purposes can differ from the
geographical area covered by the
affected site. The commenter stated that
the scope of the affected site for
purposes other than permitting is limited
to the property owned or controlled by
the site owner or operator in almost all
situations. The commenter was
concerned that too broad an
interpretation of the affected site could
effectively limit the value,
transferability and use of adjacent
properly.
One commenter requested
clarification on the applicability of the
on-site permit exemption to all classes
of non-NPL hazardous substance sites.
The commenter also asked that the NCP
clarify that the exemption does not
apply to RCRA permits and HSWA
corrective action requirements for solid
waste management units.
In response, EPA believes that
Congress intended to expedite cleanups
when it provided for the permit
exemption in CERCLA. Requiring the
Superfund program to comply with both
the administrative requirements of
CERCLA and the administrative and
other nonsubstantive requirements of
other laws would be unnecessary,
duplicative and would delay Superfund
activities. Today's action is consistent
with that intent.
EPA disagrees with those commenters
who assert that the definition of "on-
site" in the rule is unnecessarily broad.
For practical reasons discussed in the
preamble to the proposed rule (53 FR
51406), on-site remedial actions may, of
necessity, involve limited areas of
noncontaminated land: for instance, an
on-site trealment plant may need to be
located above the plume or simply
outside the waste area itself. EPA does
not believe that including in the
definition of on-site those areas "in very
close proximity to the contamination"
and "necessary for implementation of
the response," is beyond the intent of
Congress, or that it would allow the
permit exemption in section 121(e)(l) to
be used for activities that are that
fundamentally different in nature from
conventional on-site actions.
EPA believes that its proposed
definition of on-site is sufficiently
narrow so that the permit exemption is
not abused yet flexible enough to
provide for practical and expedient
implementation of Superfund remedies.
Thus, EPA will promulgate the language
as proposed, except that it will delete
the phrase "for permitting purposes" in
order to make clear that the "on-site"
definition is also relevant to the
definition of "off-site" under CERCLA
section 121(d)(3). EPA believes this
change is necessary for the consistency
of the CERCLA program, and for the
proper functioning of CERCLA section
121(d)(3). In addition, as suggested by a
commenter, EPA will change the
language in § 300.400(e)(l) to be
consistent with the definition of on-site
in § 300.5 so that both will read that "on-
site means the areal extent of
contamination * * *" rather than "on-
site includes * * *."
Proposed § 300.400(e)(l) states that
the permit waiver applies to all on-site
actions conducted pursuant to CERCLA
sections 104,106, or 122; in effect, this
covers all CERCLA removal and
remedial actions (all "response"
actions). However, a number of other
federal agencies have inquired as to
whether this language would reach
response actions conducted pursuant to
CERCLA sections 121 and 120. In
response, EPA has made a
nonsubstantive clarification of the
applicability of the permit waiver in
CERCLA section 121(e)(l) to include on-
site response actions conducted
pursuant to CERCLA sections 120 and
121.
The inclusion of actions conducted
under CERCLA section 121 is basic, and
reflects a literal reading of the statutory
provision itself ("No * * * permit shall
be required * * * where such remedial
action is selected and carried out in
compliance with this section"); indeed,
the inclusion in § 300.400(e)(l) of
sections 104,106 and 122 is based in
large part on the fact that remedial
actions carried out under section 104 or
106 authority were selected under
section 121 (the inclusion of those
sections also stems from the reference to
"removal actions" in CERCLA section
121(e)(l)). The addition of CERCLA
section 120 simply recognizes that the
permit waiver applies to federal facility
cleanups conducted pursuant to
CERCLA section 120(e), which are also
selected and carried out in compliance
with CERCLA section 121 (see CERCLA
section 120(a)(2)).
In response to other comments, EPA
intends that "areal" refers to both
surface areas and the air above the site.
EPA further intends that the exemption
applies to all CERCLA activities,
including investigations and CERCLA
section 106 actions, conducted entirely
on-site, before and after the remedy is
selected. EPA generally agrees with the
policy of not locating new disposal units
in uncontaminated land and will only do
so when the only practical method for
reducing the risk posed by the
contamination is to construct a unit in
very close proximity to the
contamination. The example described
in the preamble to the proposed rule
was contamination located in a lowland
marshy area. When it is not possible to
locate an incinerator or construction
staging area in that marshy area, it may
be located in an uncontaminated upland
area in very close proximity and still fall
within the exemption.
Commenters supporting the
alternative definitions have not
persuaded EPA that they offer
significant advantages over the
proposed definition. As stated in the
preamble to the proposed rule, the
problem with equating on-site with the
CERCLA definition of "facility" is that a
CERCLA facility is limited to the areas
of contamination; it does not include
adjacent areas necessary for
implementation of response activities.3
On the other hand, a "facility" as
defined under RCRA (i.e., the property
boundaries) may be too expansive for
purposes of the permit exemption, as it
may encompass many square miles,
with discrete areas of contamination
rather than contamination throughout.
EPA believes that the permit exemption
should not apply to activities at a site
not directly related to responding to the
contamination. Alternatively, the RCRA
definition may be too narrow where the
1 EPA does not believe that the definition being
promulgated today is inconsistent with the statutory
definition of "facility" in CERCLA section 101(9).
First. Congress did not use the term facility, but
rather used the term "on-sile." in CERCLA section
I21(e)[l). Second, the definitions are not in conflict:
the on-site definition is simply broader in order to
allow EPA to effectuate the cleanup of "facilities"
defined in the statute. (Note that the size or extent
of a facility listed on the NPL may be broader than
the description in the original NPL listing package.
and may extend to those areas where the
contamination in question has "come to be located."
See CERCLA section 101(9).- 54 FR at 41017-18
(October 4, 1989): 54 FR at 13298 (March 31.1989).
United States v. Conservation Chemical Co.. 619 F.
Supp. 162. 177.185 (W.D. Mo. 1985).)
-------
8690
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
contamination crosses property
boundaries. Also, defining on-site as the
area having the same legal ownership as
the primary contaminated area may not
be useful when a ground-water plume
has traveled a considerable distance
away from the source of contamination.
As the preamble to the proposed rule
noted, such a definition may artificially
constrain a remedy because the
exemption would be defined in terms of
a property line rather than the
contamination.
Finally, EPA believes that Congress
intended that activities conducted
entirely on-site pursuant to CERCLA are
exempt from all federal, state or local
permits, including permits under RCRA
and HSWA. A RCRA permitting
requirement would present the same
possibility of delay as any other permit.
This permit exemption does not apply,
however, to cleanup actions conducted
under an authority other than CERCLA,
such as RCRA or HSWA.
2. Noncontiguous facilities. The
preamble to the proposed rule also
stated EPA's interpretation that when
noncontiguous facilities are reasonably
close to one another and wastes at these
sites are compatible for a selected
treatment or disposal approach,
CERCLA section 104(d)(4) allows the
lead agency to treat these related
facilities as one site for response
purposes and, therefore, allows the lead
agency to manage waste transferred
between such noncontiguous facilities
without having to obtain a permit (53 FR
51407). EPA requested comment on
whether to limit this approach to
situations where the noncontiguous
facilities are under the ownership of the
same entity. Several comments were
received on EPA's proposal on
noncontiguous facilities.
Some commenters requested that this
proposal be expanded to include groups
of sites that are not in close proximity to
one another. One commenter requested
an expansion to encompass large
federal facilities with several discrete
areas of contamination that are similar
in nature but within boundaries that are
spatially separated.
In response, the preamble to the
proposed rule noted it may be
appropriate to treat noncontiguous
facilities as one site where the facilities
are "reasonably close to one another"
and the wastes are "compatible for the
selected treatment or disposal
approach" (53 FR 51407). However, the
preamble specifically noted that these
two factors were merely "among the
criteria" EPA uses to decide whether
noncontiguous facilities should be
treated as one site. In some cases, the
distance between facilities may be the
deciding factor; in other cases, the
consideration of distance may be
outweighed by other criteria. Moreover,
the "reasonably close" language in the
proposal leaves room for Agency
discretion; EPA recognizes that what
may be a reasonable distance under
some circumstances (e.g., in a sparsely
populated area) may be less reasonable
under others (e.g., in an urban setting).
EPA makes these assessments on a
case-by-case basis. EPA does not
believe that the policy needs to be
expanded in response to the comments
on distance between areas of
contamination; rather, the comments
indicate that the policy needs to be more
fully explained.
CERCLA section 104(d)(4) allows EPA
broad discretion to treat noncontiguous
facilities as one site for the purpose of
taking response action. The only
limitations prescribed by the statute are
that the facilities be reasonably related
"on the basis of geography" or "on the
basis of the threat, or potential threat to
the public health or welfare or the
environment." * Once the decision is
made to treat two or more facilities as
one site, wastes from the several
facilities could be managed in a
coordinated fashion at one of the
facilities and still be an "on-site" action,
within the permit waiver of CERCLA
section 121(e)(l).
In evaluating the appropriateness of
aggregating two facilities, EPA evaluates
one or both of the statutory criteria. The
threshold issue is generally whether the
two facilities are "related based on the
threat posed," such that it makes sense
under CERCLA to treat two or more
contamination problems as one; the
criterion of "waste treatment
compatibility," discussed in the
proposal, is one measure of this. For
example, where wastes at two CERCLA
facilities are similar or identical, and are
appropriate for like treatment or
disposal, it may be both protective of
health and the environment and cost-
effective to treat the two facilities as
one site, and to take a coordinated
response action. The treatment facility
built on-site at the first facility (which
would not need a permit pursuant to
CERCLA 121(e)(l)) could then accept
wastes from other contaminated areas
"on-site"—i.e., from the second
facility—without the need for a permit.
This allows response actions to proceed
expeditiously and cost-effectively.
. The analysis of whether facilities that
are "related based on the threat posed"
should be aggregated may, in
appropriate cases, also consider the
distance between the facilities,
especially where transportation risks
are high (such as for highly volatile
wastes or for transfers through heavily
populated areas), or where
transportation costs would be high
(calling into question the cost-
effectiveness of such an option).
Alternatively, EPA may consider
whether the sites are "related based on
geography," e.g., noncontiguous
CERCLA facilities may both represent
significant sources of contamination to a
common ground-water aquifer or surface
water stream. Here again, factors such
as the distance between the facilities
and the cost-effectiveness of the
aggregated response may also be
appropriate for consideration.
In any analysis under section
104(d)(4), EPA also believes that it is
critical to consider the views of the
affected state or states, as well as those
of the affected communities (especially
those persons living near the facility
that would receive waste from other,
noncontiguous facilities). Thus, EPA
cannot precisely define what distance is
appropriate for the aggregation of
noncontiguous facilities. EPA will
evaluate, on a case-by-case basis, the
distance between facilities and the other
factors discussed herein, to decide
whether it is appropriate to treat two
noncontiguous facilities as one under
CERCLA section 104(d){4).5
Another commenter recommended
that the proposal be broadened to cover
areas needed for transportation, storage,
and/or treatment at centralized
locations on an installation where
similar removal or remedial actions can
be taken at more than one site.
In response, the authority to treat two
noncontiguous facilities as one site is
limited under section 104(d)(4) to
CERCLA facilities (a "facility," as
defined in CERCLA section 101(9), is
generally "any site or area where a
hazardous substance has * * * come to
be located"); thus, to the extent that the
commenter was suggesting that a
centralized location that is not a
CERCLA facility may be aggregated
with noncontiguous CERCLA facilities,
EPA disagrees. Such an approach would
go beyond the terms of section 104(d)(4),
and would result in an improper
4 Note thai facilities may be aggregated for Fund-
financed remedial response (as compared to
removal or enforcement response) only if both
facilities have been listed on the NPL (See final rule
5 300.42S(b)(l).)
* Nole that as a matter of policy, and due in part
to special provisions in the Hazard Ranking System
model (e.g.. the three mile radius evaluation area).
EPA applies more restrictive criteria to potential
tile aggregations for the purposes of NPL listings
(see 48 FR 40663. Sept. 8.1983).
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8691
expansion of the permit waiver for
CERCLA actions conducted "entirely
on-site." If a party wishes to establish a
treatment or disposal facility at a
location that is not within EPA's
definition of on-site, it may do so, but it
must secure the appropriate permits.
Many comments were received on the
option of limiting application of section
104(d](4) to facilities that are under
common ownership. Some commenters
objected to aggregating facilities of
different ownership because of liability
problems. They noted that PRPs at one
site could be liable for the entire amount
of response costs at the site where on-
site activity occurs. A commenter stated
that common ownership may lessen
some of these legal concerns. One
commenter recommended that EPA
grant PRPs releases from liability with
respect to sites where they did not send
CERCLA substances, or that PRP
consent will be obtained, before the lead
agency employs centralized treatment.
Another stated that extending this
aggregation concept to facilities with
different owners would, in effect, allow
Superfund sites to take the place of
permitted waste management facilities
and goes far beyond the scope of the
permit exemption.
Other commenters believed that
applying CERCLA section 104(d)(4) to
facilities of multiple ownership was
acceptable. One commenter stated that
EPA should treat noncontiguous sites as
one site when the properties are owned
by the same entity or owned by separate
entities that agree to the arrangement.
Some commenters supported multiple
ownership but took note of the liability
problem. One opined that EPA does not
have the authority to make PRPs at
noncontiguous sites responsible for
activities at another site. Another
suggested that PRP liability would have
to be limited to the amount of liability
that would have existed if each site
were remediated separately.
In response, the question of whether
noncontiguous facilities are commonly
owned may appropriately be among the
factors for consideration in deciding
whether or not to treat noncontiguous
facilities as one site; however, EPA
disagrees that common ownership
should be a necessary condition for
coordinating response actions at
noncontiguous facilities. At many sites,
there are numerous, disparate PRPs
although the environmental threat, and
the response technology may be the
same. Limiting application of CERCLA
section 104(d)(4) to sites of common
ownership would be unduly restrictive,
with no gain in environmental
protection. Rather, EPA's interpretation
will allow for consolidated treatment or
disposal responses at one unit rather
than at several units, resulting in
advantages in terms of cost, efficiency,
and protection of human health and the
environment.
EPA recognizes commenters' concerns
regarding liability, but believes that the
liability issue is separate and distinct
from the question of whether two
facilities are appropriate for treatment
as one site; the latter issue must be
evaluated on its own merits. EPA acts to
treat noncontiguous facilities as one site
where to do so would be in the best
interests of achieving sound and
expeditious environmental cleanups.
Liability issues potentially arise from
every response action, whether waste is
left on site or is sent to a disposal
facility off-site. Indeed, EPA does not
believe that a decision to transfer waste
from a CERCLA facility to a
noncontiguous CERCLA facility as part
of an EPA-authorized response action
will result in a higher risk of liability
than would the transfer of CERCLA
wastes to an off-site commercial
treatment or disposal facility. That risk
of future liability is inherent in the
hazardous nature of the waste, and in
the quality of the treatment or disposal
technology used; it does not result from
this rule.
The commenter opposed to EPA's
proposal argued that the attempt to
include multiple sites within the
definition of on-site may allow
particular ecological areas, or limited
segments of the population, to receive
the adverse impacts of incineration or
disposal for distant sites without the
benefit of permit review.
In response to comments suggesting
that PRPs and communities may be
adversely affected by the application of
this policy, it is important to note that
where the lead agency plans to take a
consolidated response action at two or
more noncontiguous CERCLA facilities,
the agency will solicit public comment
on the proposed remedy. PRPs and
members of the public at all of the
noncontiguous facilities will be afforded
an opportunity to comment on the
wisdom of aggregating the sites and
taking a coordinated response action.
Indeed, as noted above, EPA has
identified consultation with the state(s)
and public as a critical factor in
deciding whether or not to treat the
facilities as one site.
Finally, EPA wishes to clarify that
even where noncontiguous facilities are
treated as one site, activities at the
aggregated site must comply with (or
waive) substantive requirements of
federal or state environmental laws that
are ARARs. In addition, even where
noncontiguous facilities are treated as
one site, movement of hazardous waste
from one facility to another will be
subject to RCRA manifest requirements.
Final rule: 1. EPA is revising the
proposed definition of "on-site" in
§§ 300.5 and 300.400(e)(l) as follows:
On-site means the areal extent of
contamination and all suitable areas in very
close proximity to the contamination
necessary for implementation of the response
action.
2. Reference to CERCLA sections 120
and 121 is added to § 300.400(e)(l).
A/dme: Treatability testing and on-site
permit exemption.
Proposed rule: The preamble to the
proposed rule stated that the term on-
site does not extend to a distant facility
that may be conducting a treatability
test (53 FR 51407).
Response to comments: One
commenter supported a
recommendation submitted by the
Hazardous Waste Treatment Council
(HWTC), summarized in the preamble to
the proposed NCP, that EPA modify the
NCP to permit treatability testing
without the need to obtain a RCRA
permit {53 FR 51407). EPA responded in
the preamble to the proposed rule that
adjustments to permitting requirements
to encourage treatability testing should
be accomplished by modifying RCRA
regulations. EPA disagreed that the term
on-site should be extended to
encompass treatability testing at off-site
facilities.
A commenter on this discussion in the
preamble to the proposed rule stated
that modifying RCRA rules may not be
effective for CERCLA responses
because, even if EPA did so, states are
not required to modify their RCRA
regulations to be consistent with EPA's
revision. The commenter recommended
that EPA expand the permitting
exemption to include treatability tests
conducted to support remedy decisions
at CERCLA sites and promulgate the
exemption in a separate fast-track
interim final rule.
In response, as explained in the
preamble to the proposed NCP, EPA
believes that "to the extent that it is
appropriate to adjust permitting
requirements to encourage treatability
testing, that should be accomplished by
directly modifying the RCRA regulations
to address such testing generally" (53 FR
51408). As the commenter has pointed
out, a rule has been issued under RCRA
to expand the RCRA permitting
exemption at 40 CFR 261.4 to include
waste samples used to conduct small-
scale treatability tests. 53 FR 27290, July
-------
8692 Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
19,1988. That rule was issued after the
public was provided notice and
comment opportunities.
Although the commenter is not fully
satisfied by the result of that RCRA
rulemaking (speculating that the
exemption may not be implemented
quickly, and that some states may
decide not to implement it at all), EPA is
satisfied that the proper federal
regulatory action has been taken.
Further, if the commenter and other
members of the public are concerned
that states may not follow the federal
example, they are free to urge state
governments to take prompt and similar
action. However, EPA holds to its belief
that the RCRA rulemaking is the proper
forum for deciding whether a RCRA
permit should be required for
treatability tests, including off-site
treatability tests conducted in support of
a CERCLA action.
EPA also declines to follow the
commenter's recommendation that EPA
interpret the permit exemption in
CERCLA section 121{e) to reach non-
proximate, off-site treatability tests. The
CERCLA permit exemption applies to
removal or remedial actions conducted
"entirely on-site." Although EPA has
interpreted the term "on-site" to include
certain proximate areas not formally
within the area of contamination, that
interpretation has been a limited one.
EPA has included within "on-site" only
those areas that are both in "very close
proximity" to the contamination and
"necessary for implementation of the
response action." As explained in the
preamble to the proposed and final NCP,
such an interpretation is necessary to
give practical meaning to the permit
exemption and to expedite cleanup
actions. EPA does not believe, however,
that the language of the statute can be
interpreted so broadly as to
accommodate the commenter's request.
As EPA noted in the preamble to the
proposed NCP, "EPA does not believe
that the term 'on-site' can extend to a
distant facility that may be conducting a
treatability test." (53 FR 51408).
Final rule: There is no rule language
on this issue.
Name: Section 300.400(h). PRP
oversight.
Proposed rule: Proposed § 300.400(h)
states that the lead agency "may
provide oversight for actions taken by
potentially responsible parties to ensure
that a response is conducted consistent
with this [rulemakingj." The section also
states that the lead agency may oversee
actions by third parties at a site.
Response to comments: Several of
those who commented requested
stronger language in the NCP preamble
and the above sections clarifying that
EPA will provide for site oversight, and
not that it "may" provide oversight.
EPA agrees with the comment and
will provide oversight for an
enforcement action under CERCLA.
Final rule: Proposed § 300.400(h) is
amended to include the following
language: "EPA will provide oversight
when the response is pursuant to an
EPA order or federal consent decree."
Section 300.405. Discovery or
Notification
Name: Section 300.5. Definition of
"CERCLIS."
Proposed rule: Section 300.5 of the
proposed rule defined CERCLIS as
EPA's comprehensive data base and
management system that inventories
and tracks releases addressed by the
Superfund program. The section stated
that CERCLIS contains three distinct
inventories: CERCLIS Removal
Inventory, CERCLIS Remedial
Inventory, and CERCLIS Enforcement
Inventory. The proposed definition of
CERCLIS also stated that it contains a
record of both "active releases" and
"inactive releases". The definition noted
that records of these releases are
retained in the database as an historical
record.
Response to comments: One
commenter suggested several changes to
the definition of CERCLIS. First, the
commenter suggested that the definition
of CERCLIS should be clarified to
indicate whether a site can be on more
'than one of the three sub-inventories at
the same time. Second, the definition of
CERCLIS should state that the term
"inactive release" is replacing the "no
further action" designation. Third, EPA
should specifically state in the
definition, as it does in the preamble,
that once a "no further action"
determination has been made, the site
listing will be archived as an historical
record and that for routine informational
and dissemination purposes only active
sites will be listed.
The commenter has pointed to several
statements in the definition of CERCLIS
and in the preamble description of that
definition that need to be clarified. First,
CERCLIS contains data integrated from
the pre-remedial, remedial, removal, and
enforcement sections of the Superfund
program; however, it does not contain
distinct sub-inventories for each of these
program areas (although CERCLIS has
the flexibility to retrieve each of these
areas separately for tracking, planning
or analysis purposes). Thus, there is
only one CERCLIS inventory.
Second, the use of the terms "active
releases" and "inactive releases" in the
.proposal may have been misleading,
since EPA does not use these terms to
categorize sites in CERCLIS. Sites that
EPA decides do not warrant moving
further in the site evaluation process are
given a "No Further Response Action
Planned" (NFRAP) designation in
CERCLIS. This designation signifies that
no additional federal steps under
CERCLA will be taken unless
information later indicates that this
decision was incorrect.
The commenters' last point, which
stems from a statement in the preamble
to the proposed revisions to the NCP,
also deserves clarification. EPA does
not make a distinction for information
dissemination purposes between NFRAP
sites and sites that will continue in the
site evaluation process. The public has
access to information on all sites listed
in the CERCLIS database. (See next
preamble section for further discussion
of the purpose of CERCLIS.) Sites
remain in the database after they have
been evaluated to document such
evaluation and to avoid unnecessary
repetition of evaluation activities.
Final rule: EPA has modified the
proposed definition of CERCLIS to
clarify several points noted by the
commenter and to bring the definition
more in line with current Superfund
practice. The final rule's definition of
CERCLIS deletes language that indicates
that there are separate sub-inventories
for removal, remedial, and enforcement
sites. In addition, the final rule drops the
terms "active release" and "inactive
release" and uses the term "No Further
Response Action Planned." The
promulgated definition is:
CERCLIS is the abbreviation of the
CERCLA Information System, EPA's
comprehensive data base and management
system that inventories and tracks releases
addressed or needing to be addressed by the
Superfund program. CERCLIS contains the
official inventory of CERCLA sites and
supports EPA's site planning and tracking
functions. Sites that EPA decides do not
warrant moving further in the site evaluation
process are given a "No Further Response
Action Planned" (NFRAP) designation in
CERCLIS. This means that no additional
federal steps under CERCLA will be taken at
the site unless future information so
warrants. Sites are not removed from the
data base after completion of evaluations in
order to document that these evaluations
took place and to preclude the possibility that
they be needlessly repeated. Inclusion of a
specific site or area in the CERCUS data
base does not represent a determination of
any party's liability, nor does it represent a
finding that any response action is necessary.
Sites that are deleted from the NPL are not
designated NFRAP sites. Deleted sites are
listed in a separate category in the CERCLIS
data base.
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations 8693
Name: Sections 300.405, 300.410(h) and
300.415(e). Listing sites in CERCLJS.
Proposed rule: Proposed
§ 300.405(f)(2) stated that when
notification indicates that a removal
action is not required, a remedial action
may be performed and the release will
be listed in CERCLIS. Proposed
§ 300.415(e) referred to listing releases in
the CERCLIS removal inventory.
Response to comments: Several
commenters suggested changes to the
criteria used by EPA to list sites in
CERCLIS. One commenter proposed that
EPA not list in CERCLIS sites that had
already been remedied since the time
they were first discovered. In addition,
the commenter urged EPA to adopt a
delisting procedure for sites in CERCLIS
that had already been remedied. The
commenter noted that an alternative to
this suggestion would be to keep two
distinct lists—one for "resolved sites"
and a second for "unresolved sites." A
second commenter suggested that where
a notifier is "doubtful" that a release has
occurred, no such qualified release
report should be included in CERCLIS
without independent verification that a
legally reportable release did occur.
In response, EPA believes that the
commenters have attached more
significance than is warranted to the
listing of a site in CERCLIS. As noted in
the definitions section of this rule
(§ 300.5), CERCLIS is a computerized
database in which EPA stores
management information on all sites
evaluated under the Superfund program.
Sites are discovered through a wide
variety of mechanisms, including such
diverse sources as formal notification
requirements and citizen telephone calls
and, as appropriate, are placed in
CERCLIS. Those sites that are included
in CERCLIS are not removed from the
database after completion of
evaluations in order to document that
these evaluations took place and to
avoid unnecessary repetition of
evaluation activities. Inclusion of a
specific site or area in the CERCLIS
database does not represent a finding of
liability or a determination that
response action is necessary. EPA also
does not believe that significant
financial liability can be inferred by the
mere fact that a site is on CERCLIS.
The assumption that substantial, or
any, risk to public health and the
environment is associated with a site
contained in CERCLIS is largely
inaccurate. The percentage of sites going
on to the National Priorities List, which
is EPA's list of sites believed to pose
environmental threats significant
enough to warrant detailed evaluation
for possible remedial action under
Superfund, is now between 2 percent
and 7 percent of those assessed. A full
50 percent of CERCLIS sites are
eliminated from further consideration at
the first step of the process, the
preliminary assessment (PA).
Sites that EPA decides do not warrant
moving further in the process are given a
"No Further Response Action Planned
(NFRAP)" designation in CERCLIS. This
means that no additional federal steps
will be taken at the site unless
information arrives from some source
indicating that this decision was
incorrect. It is particularly important to
note that EPA's NFRAP decision does
not mean that there is no hazard
associated with a given site; it means
only that based on available information
at that time, EPA does not plan to take
further action under CERCLA. States are
notified of all NFRAP decisions in order
to inform them that the federal
government does not plan to proceed
further, and to allow states the
opportunity to share any additional data
they may have that would change the
decision. A small percentage of NFRAP
sites are returned to active
consideration through this mechanism
each year.
Accordingly, EPA is deleting language
in the rule that implies that a release is
entered into CERCLIS after a remedial
evaluation has been performed. In fact,
sites are generally entered into CERCLIS
before a remedial evaluation has been
performed. Thus, EPA is revising this
rule language to more accurately reflect
EPA evaluation practice.
Also, consistent with the explanation
in the previous preamble section that
CERCLIS does not contain distinct
inventories for the removal, remedial
and enforcement programs, references
to removal and remedial inventories
have been deleted from proposed
§§ 300.405(f)(2), 300.410(h) and
300.415(e).
A sentence has been added to
§ 300.405(g) clarifying that federal
agencies are not legally obligated to
comply with the requirements of Title III
because they are not included in the
Title III definition of "person" contained
in section 329(7). Federal agencies are
encouraged, however, to establish
programs to implement Title III to the
extent practicable at their facilities.
Many federal facilities have already
established procedures for working with
local emergency planning committees
and state emergency response
commissions on compliance with the
emergency planning and reporting
requirements under Title III.
Final rule: Proposed § § 300.405 and
300.415(e) are revised as follows:
1. The last sentence in proposed
§ 300.405(b) is revised as follows (see
explanation in preamble discussion on
§ 300.615): "If it is not possible to notify
the NRC or predesignated OSC
immediately, reports may be made
immediately to the nearest Coast Guard
unit. In any event, such person in charge
of the vessel or facility shall notify the
NRC as soon as possible."
2. The reference to the "CERCLIS
Remedial Inventory" has been deleted
from proposed § 300.405(f)(2).
3 The following sentence has been
added to § 300.405(g): "Federal agencies
are not legally obligated to comply with
the requirements of Title III of SARA."
4. Proposed § 300.415(e) on CERCLIS
removal inventory is deleted. The
sections in § 300.415 have been
renumbered.
Sections 300.410 and 300.420. Removal
and Remedial Site Evaluations
Name: Section 300.410. Removal site
evaluation.
Proposed rule: Proposed § 300.410
describes the removal site evaluation
process, but does not address funding
constraints placed on the evaluation or
PRP participation in the evaluation.
Response to comments: One
commenter recommended including NCP
preamble language that would authorize
the OSC to use outside scientific experts
during the removal site evaluation,
providing that the PRP is willing to pay
for such scientific support.
There is nothing in the statute to
prevent or discourage the use of
additional scientific fact experts at a
site provided PRPs are willing to pay for
it themselves. The discussion in the
preamble to the proposed § 300.410
suggested such additional activity is
permissible with OSC oversight: "There
may also be instances of voluntary
response where the OSC provides
monitoring to assure proper response
and to avoid a situation where followup
action would be needed" (53 FR 51409).
Any data generated by outside scientific
experts would have to conform to
appropriate provisions of the NCP in
order to be used as the basis for
decisions under CERCLA.
Final rule: EPA is promulgating
§ 300.410 as proposed except for a
revision to § 300.410(g) (see preamble
section below) and deletion of the last
sentence in § 300.410(h) (see preamble
section above on listing sites in
CERCUS).
Name: Section 300.410{c){2). Removal
site evaluation. Section 300.420(c)(5).
Remedial site evaluation.
Proposed rule: Section 300.410(c)(2)
details the steps of a removal
preliminary assessment. Section
-------
8694
Federal Register / Vol. 55, No. 46 / Thursday, March 8. 1990 / Rules and Regulations
300.420(c)(5) describes the information
contained in a lead-agency report
following completion of a remedial site
investigation, including documentation
as well as sampling data and potential
risks to humans and the environment.
Response to comments: A commenter
asked that the NCP state that
reasonable efforts will be made during
the site investigation phase to identify
PRPs and provide them copies of the
preliminary assessment/site
investigation (PA/SI) report and an
opportunity to comment.
The removal and remedial processes
as currently outlined in the NCP provide
PRPs with a reasonable opportunity to
review and comment on lead agency
actions at a site when the proposed plan
is made available. Before this time,
documents placed in the administrative
record, including the PA/SI, are
available for public inspection. In
addition, PRPs that are interested in
more extensive involvement in the
investigation process may agree to
undertake removal or remedial actions
through a settlement agreement with
EPA. They may be granted substantially
more site involvement than non-settling
PRPs.
Extending the formal review and
comment period to PRPs as far back in
the removal and remedial process as the
PA/SI stage would unnecessarily slow
down preliminary fact-gathering at a
site. In cases where removal actions are
considered emergency or time-critical,
such review and comment time would
unjustifiably delay response to a
dangerous situation. Also, in most cases,
the PRP search has not been completed
or even started in a comprehensive
manner at the time of the PA/SI.
Accordingly, specifying formal
procedures for PRP involvement at that
time is not practical.
Final rule: EPA is promulgating
§§ 300.410(c)(2) and 300.420(c)(5) as
proposed.
Name: Section 300.410(g). Notification
of natural resource trustee.
Final rule: Section 300.410(g) is
revised as follows (see preamble
discussion on § 300.615):
If natural resources are or may be injured
by the release, the OSC or lead agency shall
ensure that state and federal trustees of the
affected natural resources are promptly
notified in order that the trustees may initiate
appropriate actions, including those
identified in subpart G of this part. The OSC
or lead agency shall seek to coordinate
necessary assessments, evaluations,
investigations, and planning with such state
and federal trustees.
Nome: Sections 300.415(b)(4) and
300.420(c){4). Sampling and analysis
plans.
Proposed rule: Proposed § 300.415 did
not describe sampling requirements.
Proposed § 300.420(c)(4) described the
procedures necessary for preparing a
site-specific sampling plan for a
remedial site inspection.
Response to comments: One
commenter stated that EPA should
revise § 300.420(c)(4} to specify review
of the sampling plan to ensure that
appropriate sampling and quality
control procedures are followed. In
response, EPA is revising the description
of the site-specific sampling plan in
proposed § 300.420(c)(4) to conform with
the purpose of the quality assurance
project plan (QAPP) defined in § 300.5
and the QAPP and sampling and
analysis plan described in
§ 300.430(b)(8), which states that such
plans will be approved by EPA. This
change emphasizes the similarity of
these activities in the site evaluation
and remedial investigation parts of the
program. In addition, EPA believes that,
when samples will be taken, it is
appropriate to describe sampling
requirements for non-time-critical
removal actions to ensure that data of
sufficient quality and quantity will be
collected for this type of action.
EPA also notes that portions of the
QAPP may incorporate by reference
non-site-specific standardized portions
of already-approved QAPPs, especially
those portions addressing policy and
organization, or describing general
functional activities to be conducted at a
site to ensure adequate data. This
eliminates the necessity to reproduce
non-site-specific quality assurance
procedures for every site.
Final rule: Proposed §§ 300.415(b)(4)
and 300.420(c)(4) are revised as follows:
1. In § 300.415(b}(4), a requirement has
been added for developing a sampling
and analysis plan, when samples will be
taken.
2. Section 300.420(c)(4) is revised to
better describe the required contents of
the sampling and analysis plan.
Section 300.415. Removal Action.
Name: Section 300.415(b)(5)(ii).
Removal action statutory exemption.
Proposed rule: CERCLA section
104(c)(l)(C) provides a new exemption
to the statutory limits on Fund-financed
removal actions of $2 million and 12
months. This exemption, stated in the
NCP in § 300.415(b)(5Kii). is applicable
when continued response is otherwise
appropriate and consistent with the
remedial action to be taken. EPA
expects to use the exemption primarily
for proposed and final NPL sites, and
only rarely for non-NPL sites (see 53 FR
51409).
Response to comments: One
commenter supported EPA's proposal to
allow waiver of the limits on Fund-
financed removal payments if such an
exemption is consistent with remedial
actions.
One commenter stated that the
decision to engage in a removal action
should be based on site conditions and
their impact on health and the
environment, not cost or time; that once
EPA concludes that a removal action is
appropriate, the various alternatives
should be analyzed at both likely NPL
and non-NPL sites equally. The
commenter felt that EPA should use the
consistency exemption more liberally
where time, rather than money, was the
complicating factor.
In response, Congress has made the
determination that cost and time are
relevant factors in deciding how
extensive a Fund-financed removal
action may be; thus, contrary to the
commenter's remark, EPA will continue
to consider such factors. Further,
Congress did not differentiate between
time and dollar limits in setting the
exemptions; EPA notes that exceeding
the time limit will often also increase the
cost of a removal action, even though it
does not necessarily raise the cost to
over $2 million. Thus, EPA does not
believe it should set different criteria for
their use.
The new exemption from the time and
dollar limits applies to any Fund-
financed removal and thus encompasses
state-lead as well as EPA-lead
responses. Actions where EPA has the
lead, but is to be reimbursed by private
parties or other federal agencies, are
still subject to the statutory limits and
provisions for exemption.
Because the exemption requires
consistency with the remedial action to
be taken, its use is well suited to
proposed or final NPL sites where
remedial action is likely to be taken. It
may also be appropriate to use this
exemption at some non-NPL sites where
justified on a case-by-case basis.
Final rule: EPA is promulgating the
rule as proposed.
Name: Section 300.415(i). Removal
action compliance with other laws.
Existing rule: The current NCP in
§ 300.65(f) requires that Fund-financed
removal actions and removal actions
pursuant to CERCLA section 106 attain
or exceed, to the greatest extent
practicable considering the exigencies of
the circumstances, applicable or
relevant and appropriate federal public
health and environmental requirements.
Other federal criteria, advisories, and
guidance and state standards are to be
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations 8695
considered, as appropriate, in
formulating a removal action.
Proposed rule: Proposed § 300.415(j)
(renumbered as 300.415(i) in the final
rule) required that removal actions
attain, to the extent practicable
considering the exigencies of the
situation, all state as well as federal
applicable or relevant and appropriate
requirements (ARARs).8 Other federal
and state criteria, advisories, and
guidance shall, as appropriate, be
considered in formulating the removal
action. The proposed revisions also note
that statutory waivers from attaining
ARARs may be used for removal
actions. In addition, the preamble to the
proposed revisions provided guidance
clarifying three factors to be considered
in determining the "practicability" of
complying with ARARs: The exigencies
of the situation, the scope of the removal
action to be taken, and the effect of
ARAR attainment on the removal
statutory limits for duration and cost (53
FR 51410-11).
Response to comments: Several
commenters supported the proposed
revision to the NCP requiring that both
federal and state ARARs be complied
with when conducting removal actions.
One commenter asked what
documentation is required to show that
ARARs have been identified and
requested that EPA develop guidance
providing hypothetical conditions
describing the extent to which ARAR
analysis should be performed. Another
commenter stated that non-Fund-
financed removal actions conducted at
federal facilities also should be required
to comply with ARARs.
In opposition to the proposal, a
number of commenters pointed out that
Congress did not intend that removal
actions be required to comply with
ARARs. The commenters suggested that,
based on the legislative history,
Congress intended that only remedial
actions be subject to compliance with
ARARs. According to one commenter,
the legislative history states that ARARs
do not apply during removal actions
because removal actions are short-term,
relatively low-cost activities of great
urgency that should be free of the delays
that may arise if it is necessary to
identify and attain ARARs.
Other commenters suggested that
attainment of ARARs should not be
required during removal actions because
removal actions are not intended to
completely clean up a site, but rather to
quickly eliminate or control an
• Note that proposed § 300.415(e) has been
deleted (see preamble section above on "Listing
sites in CERCL1S." and the remaining sections in
( 300.415 have been renumbered.
immediate threat. The commenters
argued that compliance with ARARs is
based on what remains on site after an
entire remedy is completed, not after a
particular problem is controlled. In
addition, several commenters argued
that the main purpose of the removal
program is quick mitigation of threats,
and that requiring ARARs to be
complied with during removal actions
undermines this purpose by slowing
down the cleanup process. The
commenters suggested that such
procedural delays as identification of
ARARs will hinder the removal
program's ability to respond to
emergencies swiftly.
Several additional commenters
suggested that requiring attainment of
ARARs discourages PRPs from
undertaking removal actions. Fund-
financed removals can use the statutory
limits to limit attainment of ARARs;
those limits do not apply to PRP actions.
One commenter opposed the provision
that requires OSCs to justify why they
are not attaining ARARs during a
specific removal action. The commenter
argued that the prospect of an OSC
being required to justify why he or she is
not attaining all ARARs is inconsistent
with removal program objectives.
Other commenters believed that the
current policy concerning compliance
with ARARs during removal actions
should be replaced with a more
discretionary policy. They suggested
that OSCs should only be required to
comply with ARARs that are most
crucial to the proper stabilization of the
site and protection of public health and
the environment.
In response, EPA has carefully
reviewed this issue in light of the public
comments, and believes a number of
clarifying points need to be made. First,
as a threshold matter, EPA agrees that
Congress-did not, in the 1986
amendments to CERCLA, "require" EPA
to meet ARARs during removal actions.
However, it has been EPA's policy since
1985, established in the NCP. to attain
ARARs during removals to the extent
practicable, considering the exigencies
of the situation. EPA believes that this is
still a sound policy. Reference to
requirements under other laws (i.e.,
ARARs) help to guide EPA in
determining the appropriate manner in
which to take a removal action at many
sites.
If, for example, a component of the
removal action is to discharge treated
waste to a nearby river or stream,
effluent limitations based on federal or
state water quality criteria will be useful
in determining the extent of such
treatment. Today's policy is consistent
with section 105 of CERCLA which
directs that the NCP include methods
and criteria for determining the
appropriate extent of removals. Thus,
EPA is maintaining the policy described
in the preamble to the proposed NCP,
although EPA has modified the factors
to be considered in determining
practicability.
A number of other comments
questioned the extent to which removals
should attempt to attain ARARs. In
responding to such comments, it is
important to note that the policy that
removals comply with ARARs to the
extent practicable is defined in large
part by the purpose of removal actions.
The purpose of removal actions
generally is to respond to a release or
threat of release of hazardous
substances, pollutants, or contaminants
so as to prevent, minimize, or mitigate
harm to human health and the
environment. Although all removals
must be protective of human health and
the environment within their defined
objectives, removals are distinct from
remedial actions in that they may
mitigate or stabilize the threat rather
than comprehensively address all
threats at a site. Consequently, removal
actions cannot be expected to attain all
ARARs. Remedial actions, in contrast,
must comply with all ARARs (or invoke
a waiver). Indeed, the imposition by
Congress of limits on the amount of time
and Fund money that may be spent
conducting a removal action often
precludes comprehensive remedies by
removal actions alone. Removal
authority is mainly used to respond to
emergency and time-critical situations
where long deliberation prior to
response is not feasible. All of these
factors—limits on funding, planning
time, and duration, as well as the more
narrow purpose of removal actions—
combine to circumscribe the
practicability of compliance with
ARARs during individual removal
actions. Indeed, the vast majority of
removals involve activities where
consideration of ARARs is not even
necessary, e.g., off-site disposal,
provision of alternate water supply, and
construction of fences, dikes and
trenches.
Further, it should be noted that
requirements are ARARs only when
they pertain to the specific action being
conducted. If, for example, a site has
leaking drums, widespread soil
contamination, and significant ground-
water contamination, the removal action
at the site might only involve actions
necessary to reduce the near-term
threats, such as direct contact and
further deterioration of the ground
-------
8696 Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
water; thus, the removal action might be
limited to removal of the drums and
surface debris and excavation of highly
contaminated soil. Requirements
pertaining to the cleanup of ground-
water contamination would not be
ARARs for that action because the
removal action is not intended to
address ground water; rather,
requirements pertaining to the drums,
surface debris, or contaminated soil may
be ARARs for the specific removal
action. Once the lead agency makes the
determination that the requirements are
ARARs for a removal, then it must
determine whether compliance is
practicable.
It will generally be practicable for
removal actions to comply with ARARs
that are consistent with the goals and
focus of the removal. However, as
stated above, removals are intended to
be responses to near-term threats, with
the ability to respond quickly when
necessary; thus. ARARs that would
delay rapid response when it is
necessary, or cause the response to
exceed removal goals, may be
determined to be impracticable. Of
course, even where compliance with
specific ARARs is not deemed
practicable, the lead agency for a
removal must use its best judgment to
ensure that the action taken is
protective of human health and the
environment within the defined
objectives of the removal action.
In order to better explain how a lead
agency can determine when compliance
with an ARAR is practicable, the
preamble to the proposed NCP included
three factors for consideration:
Exigencies of the situation, scope of the
removal action and the statutory limits
(53 FR 51410-11). Upon consideration of
comments, EPA has decided to
enumerate in the rule only two of those
three factors as important for
determining practicability: Urgency
(simply renaming exigencies) of the
situation, and scope of the removal
action. EPA believes that statutory
limits, because they relate to the
authority to conduct removal actions,
are easier to consider within, rather
than apart from, the factor of scope of
the removal action when determining
whether compliance with an ARAR is
practicable.
The factor of urgency of the situation
relates to the need for a prompt
response. In many cases, appropriate
response activities must be identified
and implemented quickly in order to
ensure the protection of human health
and the environment. For example, if
leaking drums pose a danger of fire or
explosion in a residential area, the
drums must be addressed immediately, .
and it will generally be impracticable to
identify and comply with all potential
ARARs.
The second factor, the scope of the
removal action relates to the special
nature of removals in that they may be
used to minimize and mitigate potential
harm rather than totally eliminate it.
Removals are further limited in the
amount of time and Fund money that
may be expended at any particular site
in the absence of a statutory exemption.
Again, using the example above, even
though standards requiring cleanup of
the lower level soil contamination
would be an ARAR to that medium, they
would be outside the scope of the
removal action when such cleanup is not
necessary for the stabilization of the
site, or when it would cause an
exceedance of the statutory limits and
no exemption applied. Hence, such soil
standards, while ARARs, would not be
practicable to attain considering the
exigencies of the situation. Of course,
such standards may be ARARs for any
remedial action that is subsequently
taken at the site.
EPA disagrees with the comment that
requiring PRPs to comply with ARARs
to the extent practicable discourages
PRPs from conducting removals because
the statutory limits do not apply to non-
Fund-financed actions. Although the
limits apply by law to Fund-financed
actions only, EPA has the discretion
under CERCLA section 104(c)(l) to take
removal actions that exceed those
limits, in emergency situations or where
the action is otherwise appropriate and
consistent with the remedial action that
may be taken at the site. EPA will select
the appropriate remedy, even where an
extensive removal action is warranted,
regardless of whether the site is Fund-
lead or PRP-based. The only difference
is that if the site is Fund-lead, an
exemption must first be invoked in order
to proceed with the action. Thus, the
time and dollar limitations generally will
not result in PRPs performing a more
extensive removal than EPA itself would
conduct. That is. EPA's selection of a
removal action, including what ARARs
will be attained, will not be based on
who will be conducting the removal.
Finally, as stated in the preamble to
the proposed NCP (53 FR 51411). even if
attainment of an ARAR is practicable
under the factors described above, the
lead agency may also consider whether
one of the statutory waivers from
compliance with ARARs is available for
a removal action. EPA is developing
guidance on the process of complying
with ARARs during removal actions.
EPA generally will only require
documentation of ARARs for which
compliance is determined to be
practicable, in order not to burden OSCs
with substantial paperwork
requirements.
Final rule: Proposed § 300.415{j)
(renumbered as final § 300.415(i)) is
revised as follows:
1. The following has been added to
identify factors that are appropriate for
consideration in determining the
practicability of complying with ARARs:
In determining whether compliance with
ARARs is practicable, the lead agency may
consider appropriate factors, including the
following:
{1} The urgency of the situation; and
(2) The scope of the removal action to be
conducted.
2. The reference to advisories, criteria
or guidance has been modified (see
preamble section below on TBCs).
3. The description of ARARs has been
reworded (see preamble section below
on the definition of "applicable.")
Name: Sections 300.5, 300.415(g) and
(h), 300.500(a), 300.505 and 300.525(a).
State involvement in removal actions.
Existing rule: Sections 300.61 and
300.62 of the current NCP encourage
states to undertake actions authorized
under subpart F. Such actions include
removal and remedial actions pursuant
to CERCLA section 104(a)(l). The
regulation notes further that CERCLA
section 104(d)(l) authorizes the federal
government to enter into contracts or
cooperative agreements with the state to
take Fund-financed response actions
authorized under CERCLA, when the
federal government determines that the
state has the capability to undertake
such actions.
Proposed rule: Proposed § 300.415(h)
and (i) (renumbered as final § 300.415(g)
and (h)j and § 300.525(a) would codify
EPA's existing policy of entering into
cooperative agreements with states to
undertake Fund-financed removal
actions, provided that states follow all
the provisions of the NCP removal
authorities. The preamble to the
proposed rule suggested that non-time-
critical actions are the most likely
candidates for state-lead removals (53
FR 51410). Proposed § 300.510(b)
provided further that facilities operated
by a state or political subdivision
require a minimum cost share of 50
percent of the total response costs if a
remedial action is taken. Section 300.505
describes what EPA and a state may
agree to in a Superfund Memorandum of
Agreement (SMOA) regarding the nature
and extent of interaction on EPA-lead
and state-lead response. The preamble
clarified that, where practicable, a
SMOA may include general provisions
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations 8697
for interaction on removal actions (53
FR 51455). The preamble to the proposed
rule described other topics for EPA/
state discussion on provisions in
SMOAs on removal actions (53 FR
51454-55).
Response to comments: One
commenter supported the proposed
revision stating that state-lead removals
through a cooperative agreement would
be a very positive step. The commenter
argued, however, that it would be
unreasonable to provide guidance that
strongly encourages states to conduct
such removals when no funds for
conducting them are made available.
Several commenters specifically
called for the delegation of the removal
program to the states. One of these
commenters stated that the revised NCP
should include more detailed and
permissive language specifically
allowing for program authority to be
delegated to states. According to the
commenter, this would allow response-
capable states to pursue program
authorization from EPA through
cooperative agreements rather than
through single or multiple project
authorizations. In addition, the
commenter recommended that states
which become authorized to conduct
removal actions be granted funding
support similar to the support that EPA
provides for the Technical Assistance
Team and the Emergency Response
Cleanup Services, thereby allowing the
state to effectively administer the duties
of the lead agency during a removal
action. The commenter also
recommended that authorized states be
allowed full reimbursement of their
removal costs from the Hazardous
Substances Trust Fund. Another
commenter suggested allowing states to
develop administrative and technical
staff capable of overseeing removal
actions. The commenter believed that a
policy should be included in the NCP
that allows for the states to hire
contractors on a stand-by basis to allow
for timely response to removal sites. A
third commenter recommended that
states be permitted by the NCP to
establish predesignated OSCs/RPMs
who would have the authority to use
federal funds pursuant to a cooperative
agreement or contract for cleanup of oil
and hazardous substances under these
programs.
Other commenters called for at least
some expanded opportunities for state
involvement in the removal program.
Several commenters argued that states
should be allowed to conduct more than
just non-time critical removals.
indicating that it would be faster and far
less costly for slates to conduct all types
of removals. Another commenter argued
that states should be afforded the
opportunity to conduct removal actions
under cooperative agreements unless an
emergency exists that does not allow
time for EPA to enter into a cooperative
agreement with the state. One
commenter suggested that states now
have very effective Superfund programs
with experienced and capable staffs.
According to the commenter, some of
these programs have better cleanup
records than the federal program. The
commenter states that EPA has failed to
take full advantage of these state
programs to improve the performance of
the federal Superfund effort.
Several commenters requested
clarification of EPA policies on state-
lead removals. The commenters
requested further clarification in the
NCP regarding the circumstances under
which states will be allowed to conduct
non-time-critical removals, what criteria
will be used to make decisions
concerning when states will be allowed
to conduct such actions, and how a
state-lead removal program will be
structured.
Other commenters suggested that EPA
more clearly define the EPA/state
relationship concerning removal actions.
One of these commenters suggested that
EPA should emphasize state/EPA
coordination on all removal actions
regardless of who is in the lead. Another
commenter stated that the NCP should
outline the EPA/state interaction on
removal sites in the same detail as the
relationship is outlined at remedial sites.
One commenter representing a state
presented specific examples of how
present state/EPA removal interaction
is ineffective. The commenter alleged
that the state had been left out of public
meetings and meetings between EPA
and the PRPs, that the state is not
consulted on press releases, and that
state comments on negotiations with
PRPs are not considered by EPA.
Another commenter suggested that EPA
in general take into consideration state
comments when conducting removal
actions.
In response, EPA is committed to state
involvement in the removal program and
is, therefore, revising regulatory
language in § § 300.5, 300.500(a) and
300.505 regarding SMOAs to include
references to removal actions. EPA
believes that the SMOA can often be
used to specify the areas appropriate for
EPA/state interaction during removal
actions. As noted in the preamble to the
proposed rule, the SMOA may include:
(1) The process to be followed by EPA
and a state to notify each other of a
determination that a removal action is
necessary; (2) the procedures to be
followed by EPA and a state to consult
and comment upon the nature of any
proposed removal action; and (3) the
procedures to be followed to provide for
post-removal site control for Fund-
financed removals as described in
§ 300.415(k). A definition of "post-
removal site control" has been added to
§ 300.5 because this term is used in
several places in the NCP. If EPA and a
state desire, the SMOA provisions may
also include details on interaction at
public meetings, negotiations with PRPs,
etc. EPA wishes to emphasize, however,
that the negotiations concerning EPA/
state interaction during removal actions
should not be allowed to interfere with
or prolong the completion of the SMOA
negotiations. If EPA and the state find
that discussion of the provisions
regarding removal actions is delaying
completion of the SMOA, they should
proceed with the SMOA negotiations
without removal action provisions, and
at a later date amend the SMOA to
include these provisions.
Currently, EPA's policy is that states
may conduct a non-time-critical removal
action for a specific site. In response to
comments, EPA considered allowing
states to conduct Fund-financed time-
critical and emergency removal actions
as well. After careful consideration,
however, EPA decided to continue its
current policy of allowing only non-time-
critical removal actions to be state-lead.
In arriving at this decision, EPA weighed
several factors concerning the nature of
removal actions, and the history of the
removal program. First, EPA may not
obligate funds in anticipation of removal
actions that may take place in the
future. Therefore, states must enter into
site-specific cooperative agreements
(CAs) before they are allowed to
undertake a removal action. In the past,
EPA attempted using CAs more
extensively in the removal program but
found that the CA negotiating process is
often long and complicated. EPA was
concerned that the process could hinder
timely response to releases requiring
emergency or time-critical action.
Second, the removal program has
limited funding. Because of the necessity
for ensuring adequate response
capabilities on the federal level, EPA
does not anticipate that additional
funding will be available for states to
conduct emergency and time-critical
removal actions and, therefore, does not
believe it would be feasible to allow
states to undertake these types of
response actions. For these reasons,
EPA believes that its current policy of
permitting states to conduct only non-
time-critical removal actions allows
-------
8698
Federal Register / Vol. 55. No. 46 / Thursday, March 8, 1990 / Rules and Regulations
EPA to retain its ability to respond
immediately to releases that threaten
human health and the environment
while simultaneously providing states a
role in the removal action process.
For a state to conduct Fund-financed,
non-time-critical removal actions, the
state must first enter into a CA with
EPA. Additionally, only removal actions
that are listed on the approved or
revised Superfund comprehensive
accomplishments plan (SCAP) can be
state-lead. The Regional Administrator
(RA) evaluates a state's request to lead
a Fund-financed removal action and
decides on a case-by-case basis whether
the action is appropriate for state-lead.
When making his/her decision the RA
considers: (1) The state's experience in
leading activities conducted under the
remedial program that are similar to the
response actions required to clean up or
to stabilize the release at the site under
evaluation for state-lead; (2) the state's
experience in responding to hazardous
substance releases independent of
federal involvement and funds; and (3)
whether the state has prepared a state
contingency plan for hazardous
substance release response. For more
information concerning state-lead
removals see 40 CFR part 35, subpart O.
In further response to the comment on
delegating authority (and transferring
funds) to states, EPA notes that although
authority to conduct time-critical and
emergency removals is not being
delegated to states, funding may be
available under the Core Grant Program
to assist states in developing an infra-
structure for involvement and
interagency coordination during removal
actions. For more information
concerning the Core Grant Program see
40 CFR part 35, subpart O.
Final rule: 1. Proposed §§ 300.5
(definition of SMOA). 300.500(a),
300.505(a)(3) and 300.505fd)(l) are
revised to add the word "removal"
before the word "pre-remedial."
2. Proposed § 300.415(h) and (i) are
renumbered as § 300.415(g) and (h) and
promulgated as proposed.
3. A definition for "post-removal site
control" is added to § 300.5 as follows:
"Post-removal site control" means those
activities that are necessary to sustain the
integrity of a Fund-financed removal action
following its conclusion. Post-removal site
control may be a removal or remedial action
under CERCLA. The term includes, without
being limited to. activities such as relighting
gas flares, replacing filters and collecting
leachate.
4. References to "post-removal site
control" have been added to the
definitions in § 300.5 of "remove or
removal" and "remedy or remedial
action."
Section 300.425. Establishing remedial
priorities.
Name: Section 300.5. Definition of
National Priorities List. Section 300.425.
Establishing remedial priorities.
Proposed rule: Section 300.5 included
a definition of National Priorities List.
Section 300.425 identified the criteria,
methods, and procedures EPA uses to
establish its priorities for remedial
action. The proposed rule stated that
although only those releases included on
the NPL are eligible for Fund-financed
remedial action, remedial planning
activities pursuant to CERCLA section
104(b) are not considered remedial
actions and are not limited to NPL sites.
Response to comments: EPA has made
several changes to language on listing
sites on the National Priorities List.
First, EPA is revising the rule to explain
more clearly which EPA authorities are
limited to sites on the NPL.
In both the existing NCP (40 CFR
300.66(c)(2), 300.68(a)(l)) and the 1988
proposed revisions (§ 300.425(b)(l). 53
FR at 51502), EPA has stated that Fund
money may be used for CERCLA
remedial actions only for those releases
that are listed on the NPL The 1985 NCP
(40 CFR 300.68(a)(l)) and the proposed
revision went on to state that this
limitation on the use of Fund money
would not apply to "remedial planning
activities pursuant to CERCLA section
104(b)," which despite the use of the
word "remedial" in the name, come
within the definition of "removal"
actions under CERCLA section 101(23).
See 54 FR 41002 (October 4,1989); 52 FR
27622 (July 27,1987); 50 FR 47927
(November 20,1985). In the interest of
clarity on this point, EPA has amended
final § 300.425(b)(l) to provide that the
limitation on remedial action funding to
releases on the NPL would not apply to
"removal actions (including remedial
planning activities, RI/FSs, and other
actions taken pursuant to CERCLA
section 104(b))." This clarification is
consistent with the proposed and final
§ 300.415(b)(l), which states that a
removal action may be taken at
appropriate sites regardless of inclusion
on the NPL.
The proposed and final rule, at
§ 300.425(b)(4), also make clear that EPA
may take enforcement actions at non-
NPL sites. EPA also notes that it has the
discretion to use its authorities under
CERCLA, RCRA, or both to accomplish
appropriate cleanup action at a site,
even where the site is listed on the NPL.
(See 54 FR at 41009 (Oct. 4,1989).) In
particular, where a site is at an active,
RCRA-permitted facility, and the
owner/operator is present and has
adequate financial resources to fund the
entire cleanup, EPA may consider
whether the use of RCRA or CERCLA
authorities (or both) is most appropriate
for the accomplishment of cleanup at the
site. In the context of federal facility
cleanups, this decision, and the cleanup
plan in general, would be discussed in
the Interagency Agreement (IAG) for the
facility.
Second, EPA is deleting a sentence
from § 300.425(b)(2) that reads:
"Responsible parties shall pay for or
implement response actions to the
fullest extent practicable." EPA
reiterates that it is EPA policy for
responsible parties to pay for or
implement response actions to the
maximum extent practicable. EPA
believes, however, that this policy is
more appropriately stated in the
preamble.
In addition, proposed § 300.425(c)(2) is
revised to add the phrase "(not
including Indian tribes)" in order to be
consistent with the reference to "state"
in CERCLA section 105(a)(8)(B).
Consistent with the revisions to
§ 300.425, EPA is also revising the
proposed definition of National
Priorities List in § 300.5 to clarify that
EPA may allow actions other than Fund-
financed actions under CERCLA to be
conducted at NPL sites.
Final rule: 1. The proposed definition
in § 300.5 is revised as follows:
"National Priorities List" (NPL) means the
list, compiled by EPA pursuant to CERCLA
section 105, of uncontrolled hazardous
substance releases in the United States that
are priorities for long-term evaluation and
response.
2. Proposed § 300.425(b) is revised as
follows:
(b) National Priorities List. The NPL is the
list of priority releases for long-term
evaluation and remedial response.
(1) Only those releases included on the
NPL shall be considered eligible for Fund-
financed remedial action. Removal actions
(including remedial planning activities, RI/
FSs and other actions taken pursuant to
CERCLA section 104(b)) are not limited to
NPL sites.
(2) Inclusion of a release on the NPL does
not imply that monies will be expended, nor
does the rank of a release on the NPL
establish the precise priorities for the
allocation of Fund resources. EPA may also
pursue other appropriate authorities to
remedy the release, including enforcement
actions under CERCLA and other laws. A
site's rank on the NPL serves, along with
other factors, including enforcement actions.
as a basis to guide the allocation of Fund
resources among releases.
3. The first sentence of proposed
§ 300.425(c)(2) is revised as follows: "A
state (not including Indian tribes) has
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8, 1990 / Rules and Regulations 8699
designated a release as its highest
priority."
Name: Section 300.425(d)(6).
Construction Completion category on
the National Priorities List.
Proposed rule: EPA proposed to
establish a new "category" as part of
the NPL—the "Construction
Completion" category (see 53 FR 51415).
The category would consist of: (a) Sites
awaiting deletion, (b) sites awaiting
deletion but for which CERCLA section
121(c) requires reviews of the remedy no
less often than five years after initiation,
and (c) sites undergoing long-term
remedial actions (LTRAs). EPA believes
the new category would communicate
more clearly to the public the status of
cleanup progress among sites on the
National Priorities List {NPL).
EPA would shift sites into the
Construction Completion category only
following approval of interim or final
Close Out Reports. EPA would approve
the Reports only after remedies have
been implemented and are operating
properly. Approval of an interim Close
Out Report indicates that construction
of the remedy is complete, and that it is
operating properly, but that the remedy
must operate for a period of time before
achieving cleanup levels specified in the
Record of Decision (ROD) for the site.
Approval of a final (including amended)
Close Out Report indicates that the
remedy has achieved protectiveness
levels specified in the ROD(s), and that
all remedial actions are complete. The
proposal also indicates that EPA
believes that sites requiring five-year
review under § 300.430(f)(3)(v)
(renumbered as final
§ 300.430(f)(5)(iii)(C)) may, when
appropriate, be deleted from the NPL.
Response to comments: All
commenters on this policy
recommended adoption of the proposal
to recategorize sites. One commenter
disagreed with EPA's name for the new
category, stating that construction at
some sites in the category would not be
complete. EPA disagrees with this
interpretation; as explained above, for
both LTRA sites and sites awaiting
deletion, construction of the remedy
must be complete and operating
properly before it may be placed in this
new category. Another commenter
interpreted EPA's proposal to mean that
it would create a new status code on the
NPL, rather than a new category, or sub-
section. EPA believes a distinct category
more clearly provides remedial progress
information to the public. EPA has found
this to be true with regard to federal
facility sites, which have been placed in
a separate category of the NPL. Thus,
the idea of categorizing sites on the NPL
is not a new one. Indeed, the 1985 NCP
specifically afforded EPA the discretion
to "re-categorize" certain types of sites
(see 40 CFR 300.66(c)(7)(1985)). EPA is
specifically acknowledging this
discretion in final $ 300.425(d)(6).
The commenter stated that EPA
should seek state concurrence before
placing a site under the new status. EPA
disagrees that it should seek formal
state concurrence to recategorize sites.
Recategorization is a mechanical
process and does not have regulatory
significance; it is merely a better method
of communicating site status to the
public. Moreover, EPA will recategorize
sites only on the basis of approved
interim or final Close Out Reports, and
states will continue to be involved in
remedy inspections and review or
preparation of the reports. EPA will
obtain state concurrence and solicit
public comments before deleting sites
from the NPL, pursuant to 5 300.425(e).
Another commenter supported the
concept of recategorizing sites,
particularly those at which only
operation and maintenance remains to
be conducted. However, the commenter
also states that such sites could
appropriately be deleted entirely from
the NPL. A different commenter
suggested that the Construction
Completion category should exclude
sites requiring only operation and
maintenance and that such sites should
be deleted from the NPL. EPA intends
that a site requiring only operation and
maintenance at the time of construction
completion be recategorized as a
temporary measure until the process of
reviewing the site for possible deletion
from the NPL has been completed.
One commenter stated that proposed
§ 300.430(f)(3)(v) is unclear regarding
whether EPA would conduct five-year
reviews at sites in certain phases of
response, or having certain status vis-a-
vis the NPL, i.e., sites still on the NPL,
deleted sites, and sites where LTRAs
are underway. The commenter went on
to state that, if a five-year review
indicates that additional action is
required at a site that has been deleted
from the NPL, EPA must clarify under
what authority the action is to be
conducted.
EPA will conduct five-year reviews
for appropriate sites after initiation of
the remedial action. Thus, reviews may
be conducted during phases of the
remedial action, during LTRA status,
and, where appropriate, after a site has
been deleted from the NPL. EPA
continues to develop its policy on five-
year reviews, and plans to issue further
guidance on these issues. EPA has
discretionary authority to take further
action at a deleted site if a review
indicates that the remedy is no longer
protective. CERCLA section 105(e)
states that EPA may restore the site to
the NPL without re-applying the Hazard
Ranking System (MRS), and CERCLA
section 121(c) provides that EPA may
take or require action, if appropriate,
following a review. Section 300.425(e)(3)
again states this point, and further states
that all releases deleted from the NPL
are eligible for Fund-financed remedial
actions should future conditions warrant
such actions.
Another commenter stated that "five-
year review" sites should be deleted
from the NPL rather than placed in the
Construction Completion category. In
response, at the time of proposal, EPA
announced its view that five-year
review sites may be considered "sites
awaiting deletion," i.e., deletion
candidates. Upon consideration of the
issue, EPA believes that it may generally
not be appropriate to delete any of these
sites before performing at least one
review after completion of the remedial
action. This is consistent with a
recommendation of the Administrator's
90-day study of the Superfund Program,
"A Management Review of the
Superfund Program," and with OSWER
policy.7
This position reflects an EPA policy
decision that in most cases where
hazardous substances remain after the
completion of remedial action, it is
appropriate to act more slowly on
deleting the sites from the NPL,
consistent with the concern evidenced
by Congress in specifically mandating
review at least every five years at such
sites. This policy is also consistent with
the limited purpose of the NPL as an
informational list of sites at which
CERCLA attention is appropriate (53 FR
at 51415-16); the continued inclusion of
the site on the NPL does not mean that
response action will be taken at the site.
See 48 FR 40658, 40659 (Sept. 8,1983)
(quoting CERCLA legislative history).
This is not inconsistent with the long-
standing provision on deletion in the
1985 NCP, which provides that "sites
* See "Performance of Five-Year Reviews and
Their Relationship to the Deletion of Site* from the
National Priori ties Lift (NPL) (Superfund
Management Review: Recommendation No. 2),
Memorandum from Jonathan Z. Cannon. Acting
Aasiitant Administrator, OSWER, to Regional
Administrators (October 30,1989); and "Update to
the 'Procedures for Completion and Deletion of
National Priorities Ust Sites'—Guidance Document
Regarding the Performance of Five-Year Reviews
(Superfund Management Review: Recommendation
No. 2)," Memorandum from Henry L Longest n.
Director. Office of Emergency and Remedial
Response, to Regional Waste Management Division
Directors (OSWER Directive No. 932O2-3B,
December 29,1989).
-------
8700
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
may be deleted from or recategorized on
the NPL where no further response is
appropriate"40CFR 300.66(c)(7)(1985)
(emphasis added). Thus even if no
further action is planned at a five-year
review site, recategorization is as
appropriate a means of recognizing that
status as is deletion. Further, deletion
will be considered as part of the review.
EPA also does not view this policy for
five-year review sites as inconsistent
with EPA policy on deletions. The
criteria for deletion in § 300.425(e)
provide that "releases may be deleted
from * * * the NPL where no further
response is appropriate," thereby
providing considerable flexibility to the
Administrator. Further, the rule provides
that EPA shall not delete a site from the
NPL until the state in which the release
was located has concurred, and the
public has been afforded an opportunity
to comment on the proposed deletion.
Thus, the decision to delete is not an
automatic one by EPA, but rather is
decided as part of a formal public
process. It is similarly important to note
that a "site awaiting deletion" in the
new Construction Completion category
will not necessarily be deleted
automatically upon recategorization.
One commenter stated that the first
five-year review should not occur until
five years after the operation and
maintenance phase of the response
action is complete. EPA disagrees with
this comment; some sites will require
operation and maintenance indefinitely,
and thus adoption of such an approach
would result in no five-year review.
Further, CERCLA section 121(c) calls for
reviews within five years of the
"initiation"—not completion—of the
remedial action. EPA is currently
developing a policy regarding timing and
conduct of five-year reviews.
Another commenter, though strongly
favoring the creation of a new NPL
category, recommended that EPA create
two new categories: "remedy in long-
term operation and maintenance", and
"sites awaiting delisting". The
commenter asserted that the public
would understand such terms more
easily than "Construction Completion".
EPA disagrees with this comment
because the phrase "long-term operation
and maintenance" may cause more
confusion for the public. EPA believes
the commenter inadvertently confused
two concepts: "operation and
maintenance" and "LTRA." Many NPL
sites will require operation and
maintenance following deletion from the
NPL in order to maintain die
protectiveness of the remedy (e.g.
cutting grass or maintaining monitoring
wells), even though specified cleanup
standards have been achieved and
criteria for deletion have been met.
An LTRA, on the other hand, is an
ongoing remedial action which has not
yet achieved the cleanup standards in
the ROD. It too may require operation
and maintenance after achieving these
standards, and after deletion of the site
from the NPL. EPA will place an LTRA
site in the Construction Completion
category based on approval of an
interim Close Out Report. EPA will
finalize or amend the report when the
remedy has achieved cleanup levels
specified in the ROD(s). The LTRA will
then be categorized on the NPL as either
a site awaiting deletion or a five-year
review site.
To minimize public confusion and
administrative burden, EPA will create
at present only one new category.
However, EPA plans to denote in the
category whether a site is: (a) An LTRA,
(b) a site awaiting deletion, or (c) a
"five-year review" site awaiting review
and/or deletion. (Note that LTRA sites
may be placed in the five-year review
category upon attainment of the final
remediation goals.)
Final rule: Proposed § 300.425 is
revised as follows:
1. A new section has been added to
the final rule, | 300.425(d)(6), to reflect
EPA's long-standing discretion to
establish categories of sites on the NPL:
"Releases may be categorized on the
NPL when deemed appropriate by EPA."
2. In § 300.425(e)(2), the timeframe for
state review of notices of intent to
delete has been changed to 30 working
'days (see preamble to § 300.515(h)(3),
"State review of EPA-lead documents)."
Section 300.430. Remedial Investigation/
Feasibility Study and Selection of
Remedy
Introduction. Today EPA is
promulgating revisions to the remedial
investigation (RI)/feasibility study (FS)
and selection of remedy sections of the
1985 NCP. While the framework of this
portion of the regulation remains largely
as proposed on December 21,1988,
significant changes have been made to
respond to comments received and to
articulate more clearly the remedy
selection goal, expectations and process
EPA intends to employ in implementing
the Superfund program.
The remedy selection process
promulgated today is founded on
CERCLA's overarching mandate to
protect human health and the
environment. This approach emphasizes
solutions that can ensure reliable
protection over time. Today's rule
promotes the aggressive use of
treatment technologies to achieve
reliable remedies while acknowledging
the practical limitations on the use of
treatment.
In this approach, EPA seeks to
encompass the many statutory
mandates while emphasizing the
statutory preference for permanent
solutions and use of treatment
technologies. The approach is tempered
by practicability to ensure that the
remedies selected are appropriate and
that the program responds to the threats
posed by the worst toxic waste sites
across the nation. Today's requirements
for selecting remedies further provide a
uniform framework to promote
consistency in decision-making.
Today's regulation establishes a
process that allows consideration and
balancing of site-specific factors in
remedy selection. EPA has used this
type of decision-making process to
select CERCLA remedial actions since
the inception of the Superfund program.
Revisions contained in today's rule
modify the approach by incorporating
the new requirements of the 1986
amendments to CERCLA into existing
procedures. This approach relies on a
process that examines site
characteristics and alternative
approaches for remediating site
problems. This process evaluates
remedial alternatives using nine criteria
which are based on CERCLA's
mandates to determine advantages and
disadvantages of the alternatives, thus
identifying site-specific trade-offs
between options. These trade-offs are
balanced in a risk management
judgment as to which alternative
provides the most appropriate solution
for the site problem.
In response to comments requesting
further clarification and structure in the
remedy selection process, EPA has
made changes to provide better
guidance on the types of remedies that
EPA expects to result from the process;
to add more structure to the process by
specifying the functional categories of
the nine criteria in the rule; and to
indicate which criteria are to be
emphasized in the balancing process.
EPA believes this process ensures the
selection of remedial actions that fulfill
statutory requirements to protect human
health and the environment,'comply
with ARARs. be cost-effective, and
utilize permanent solutions and
alternative treatment technologies or
resource recovery technologies to the
maximum extent practicable. Further,
this process considers the full range of
factors pertinent to remedy selection
and provides the flexibility necessary
and appropriate to ensure that remedial
actions selected are sensible, reliable
solutions for identified site problems.
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8701
The approach promulgated in today's
rule was supported by numerous
commenters. Several expressed the view
that alternate remedy selection methods
presented in the proposal were
inappropriate or inferior to the
promulgated approach. Some
commenters noted that the promulgated
approach includes important criteria
that the other approaches do not.
Two distinct groups of commenters
who have sharply contrasting views on
the goal of the Superfund program
opposed the proposed approach that is
promulgated today. One group of
commenters believes EPA should
establish a remedy selection process
that adopts as its goal full site
restoration and treatment of all material
to the extent technically feasible. This
approach would limit consideration of
cost to the selection of the less
expensive of comparably effective
treatment technologies. Under this
approach, methods of protection that
rely on control of exposure (i.e.,
engineering controls such as capping or
other containment systems and
institutional controls) could only be
used when treatment was technically
infeasible. Several of these commenters
expressed the view that remedy
selection should be more structured and
supported either the sequential decision-
making approach or the point of
departure strategy for remedy selection
presented in the proposal.
The other group of commenters
critical of the proposed approach
believes the Superfund program should
seek to achieve protection primarily by
controlling exposure to current risks
through use of engineering and
institutional controls. Treatment would
be used only if other controls are not
expected to be reliable or greater
protection can be achieved through
treatment without a significant increase
in cost. These commenters generally
supported the use of a cost-effectiveness
screen in site-specific balancing or the
site stabilization strategy for remedy
selection presented in the proposal.
The approach EPA promulgates today
sets a course for the Superfund program
between the two ends of the spectrum
reflected in these comments. EPA is
establishing as its goal remedial actions
that protect human health and the
environment, that maintain protection
over time, and that minimize untreated
waste.
This goal reflects CERCLA's
preference for achieving protection
through the use of treatment
technologies that destroy or reduce the
inherent hazards posed by wastes and
result in remedies that are highly
reliable over time. The purpose of
treatment in the Superfund program is to
significantly reduce the toxicity and/or
mobility of the contaminants posing a
significant threat (i.e., "contaminants of
concern") wherever practicable to
reduce the need for long-term
management of hazardous material. EPA
will seek to reduce hazards (i.e., toxicity
and/or mobility) to levels that ensure
that contaminated material remaining
on-site can be reliably controlled over
time through engineering and/or
institutional controls.
Further, the Superfund program also
uses as a guideline for effective
treatment the range of 90 to 99 percent
reduction in the concentration or
mobility of contaminants of concern (see
preamble discussion below on
"reduction of toxicity, mobility or
volume" under § 300.430(e)(9)). Although
it is most important that treatment
technologies achieve the remediation
goals developed specifically for each
site (which may be greater or less than
the treatment guidelines), EPA believes
that, in general, treatment technologies
or treatment trains that cannot achieve
this level of performance on a consistent
basis are not sufficiently effective and
generally will not be appropriate. EPA
believes this 90 to 99 percent reduction
treatment guideline allows for the use of
an array of technologies and will not
preclude the introduction of innovative
technologies into the range of effective
technologies. EPA believes the remedy
selection process should encourage
diversification of the range of treatment
technologies available for addressing
hazardous substances so that the
program continues to find more
effective, safer, and less costly ways of
reducing the hazards posed by the
various and often complex materials
encountered at Superfund sites.
Along with the program goal, EPA is
establishing expectations regarding the
extent to which treatment is likely to be
practicable for certain types of site
situations and problems frequently
encountered by the Superfund program.
These expectations indicate that EPA
intends to place priority on treating
materials that pose the principal threats
at a given site. The expectations also
acknowledge that certain technological,
economic and implementation factors
may make treatment impracticable for
certain types of site problems.
Experience has shown that in such
situations, remedies that rely on control
of exposure through engineering and/or
institutional controls to provide
protection generally will be appropriate.
The goal and expectations should be
considered when making site-specific
determinations of the maximum extent
to which permanent solutions and
treatment can be practicably utilized in
a cost-effective manner. Another
important part of this framework is the
range of alternatives EPA will consider
as possible cleanup options. This range
reflects the principle that protection of
human health and the environment can
be achieved through a variety of
methods, including treatment,
engineering and/or institutional controls
and through combinations of such
methods. Today's rule reflects the
statutory preference for achieving
protection of human health and the
environment through treatment by
emphasizing the development of
alternatives that employ treatment as
their principal element.
This framework for developing
alternatives is one of the major changes
to the 1985 NCP which called for the
development of alternatives that do not
attain, attain, and exceed ARARs, as
well as an off-site and no action
alternative. The 1965 framework was
premised on the implicit assumptions
that alternatives would share the same
ARARs and that the ability to meet or
exceed those requirements
corresponded to different levels of
protection. Program experience has
shown that while alternatives may share
chemical- and location-specific ARARs,
generally each alternative will have a
unique set of action-specific
requirements. Additionally, it is now
clear that ARARs do not by themselves
necessarily define protectiveness. First,
ARARs do not exist for every
contaminant, location, or waste
management activity that may be
encountered or undertaken at a
CERCLA site. Second, in those
circumstances where multiple
contaminants are present, the
cumulative risks posed by the potential
additivity of the constituents may
require cleanup levels for individual-
contaminants to be more stringent than
ARARs to ensure protection at the site.
Finally, determining whether a remedy
is protective of human health and the
environment also requires consideration
of the acceptability of any short-term or
cross-media impacts that may be posed
during implementation of a remedial
action.
Another major revision to the 1985
NCP promulgated today is the
establishment of nine criteria used for
the detailed analysis of alternatives that
serve as the basis for the remedy
selection decision. These nine criteria
encompass statutory requirements
(specifically the long-term effectiveness
factors that must be assessed under
CERCLA section 121(b)(l)(A-G)), and
include other technical and policy
-------
8702
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
considerations that have proven to be
important for selecting among remedial
alternatives. The various criteria have
been categorized according to their
functions in the remedy selection
process as threshold, balancing and
modifying criteria. This designation
demonstrates that protection of human
health and the environment will not be
compromised by other factors, including
cost. Revisions also clarify that trade-
offs among alternatives with respect to
the long-term effectiveness and
permanence they afford and the
reductions in toxicity, mobility, or
volume they achieve through treatment
are the most important considerations in
the balancing step by which the remedy
is selected.
Name: Section 300.430(a)(l). Program
goal, program management principles
and expectations.
Proposed rule: The preamble to the
proposed rule described management
principles which EPA intends to apply to
the Superfund program and certain
expectations regarding the types of
remedies that EPA has found to be most
appropriate for different types of waste
(53 FR 51422). These expectations were
developed based on both the
preferences and mandates expressed in
CERCLA section 121 as well as EPA's
practical experience in trying to meet
those preferences and mandates. The
preamble declared EPA's intent to focus
available resources on selection of
protective remedies that provide
reliable, effective response over the
long-term. The expectations envision
treatment of the principal threats posed
by a site, with priority placed on
treating waste that is highly toxic, highly
mobile, or liquid; and containment of
waste contaminated at low levels, waste
technically infeasible to treat and large
volumes of waste.
Also included in the expectations was
the concept that contaminated ground
waters will be returned to their
beneficial uses wherever practicable,
within a timeframe that is reasonable
given the particular circumstances of the
site. The preamble explained'that
institutional controls could be used, as
appropriate, to prevent exposures to
releases of hazardous substances during
remedy implementation and to
supplement engineering controls. The
preamble also stated that the use of
institutional controls should not
substitute for active response measures
as the sole remedy unless such active
measures are determined not to be
practicable.
The preamble also described three
program management principles
developed from program experience to
promote the efficiency and effectiveness
of the remedial response process. The
preamble stated EPA's intent to balance
the desire of definitive site
characterization and alternatives
analysis with a bias for initiating
response actions necessary or
appropriate to eliminate, reduce or
control hazards posed by a site as early
as possible. The preamble emphasized
the principle of streamlining, which EPA
would apply in managing the Superfund
program as a whole and in conducting
individual remedial action projects. The
preamble explained that the bias for
action and principle of streamlining may
appropriately be considered throughout
the life of a remedial project but begin to
be evaluated as site management
planning is initiated. Site management
planning is a dynamic, ongoing and
informal strategic planning effort that
generally starts as soon as sites are
proposed for inclusion on the NPL and
continues through the RI/FS and remedy
selection process and the remedial
design and remedial action phases, to
deletion from the NPL.
Response to comments: EPA has
placed the program goal, expectations,
and management principles into the rule
in response to the strong support these
principles received from commenters. By
including these in the rule, EPA believes
the regulation better articulates the
objectives of the program. EPA also
believes that placing them in the rule
itself will ensure that the principles and
expectations, although not binding, will
remain a part of the codified rule and
will not merely be detached preamble
language. This will facilitate their use
and identification by implementing
officials and the public. Specific
comments and changes to the rule are
discussed below.
1. Program goal. EPA has added a
statement of the national goal of the
remedy selection process to the final
regulation. The goal as expressed in
today's rule is to select remedies that
will be protective of human health and
the environment, that will maintain
protection over time and that will
minimize untreated waste. Although
EPA received no comment specifically
addressing a national remedy selection
goal, comments on other issues reflected
different interpretations of statutory
mandates. EPA is articulating a goal in
order to reflect the effort of the
Superfund program to select remedies
that are protective of human health and
the environment in the long-term and
minimize untreated waste. The concept
of this goal is to be maintained
throughout the remedy selection
process. The evaluation and remedy
selection performed using the nine
criteria determine the extent to which
this goal is satisfied and the extent to
which permanent solutions and
treatment are practicable.
2. Expectations. EPA has decided to
add to the final regulation the program
expectations which appeared only in the
preamble to the proposed rule. EPA
takes this action in response to
numerous comments expressing strong
support for the principles underlying the
expectations and requesting EPA to
incorporate the expectations into the
regulation. EPA has placed the
expectations in the rule to inform the
public of the types of remedies that EPA
has achieved, and anticipates achieving,
for certain types of sites. These
expectations are not, however, binding
requirements. Rather, the expectations
are intended to share collected
experience to guide those developing
cleanup options. For example, EPA's
experience that highly mobile waste
generally requires treatment may help to
guide EPA to focus the detailed analysis
on treatment alternatives, as compared
to containment alternatives. In effect,
the expectations allow implementing
officials to profit from prior EPA
learning and thereby avoid duplicative
or unnecessary efforts. However, the
fact that a proposed remedy may be
consistent with the expectations does
not constitute sufficient grounds for the
selection of that remedial alternative.
All remedy selection decisions must be
based on an analysis using the nine
criteria.
Today's rule also contains an
expectation on the use of innovative
technologies that EPA developed in
response to numerous comments calling
for increased emphasis on the
diversification of treatment technologies
used in site remediation. EPA supports
such diversification and expects that it
will generally be appropriate to
investigate remedial alternatives that
use innovative technologies when such
technology offers the potential for
comparable or superior treatment
performance or implementability, fewer
or lesser adverse impacts than other
available approaches, or lower costs for
similar levels of performance than
demonstrated technologies.
Several commenters focused on the
need for flexibility and discretion in
complying with the various mandates of
CERCLA. These commenters supported
the expectations discussed by EPA in
the preamble to the proposed rule as
being consistent with these needs. EPA
received the greatest support for the
expectations concerning the use of
treatment technologies.
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8. 1990 / Rules and Regulations
8703
EPA expects that treatment will be the
preferred means by which to address
the principal threats posed by a site,
wherever practicable. Principal threats
are characterized as waste that cannot
be reliably controlled in place, such as
liquids, highly mobile materials (e.g.,
solvents), and high concentrations of
toxic compounds (e.g., several orders of
magnitude above levels that allow for
unrestricted use and unlimited
exposure). Treatment is less likely to be
practicable when sites have large
volumes of low concentrations of
material, or when the waste is very
difficult to handle and treat (e.g., mixed
waste of widely varying composition).
Specific situations that may limit the use
of treatment include sites where: (1)
Treatment technologies are not
technically feasible or are not available
within a reasonable timeframe; (2) the
extraordinary size or complexity of a
site makes implementation of treatment
technologies impracticable; (3)
implementation of a treatment-based
remedy would result in greater overall
risk to human health and the
environment due to risks posed to
workers or the surrounding community
during implementation; or (4) severe
effects across environmental media
resulting from implementation would
occur.
In addition, commenters agreed with
EPA that solutions often will involve a
combination of methods of providing
protection, including treatment and
engineering controls and institutional
controls. One commenter stated his
belief that these expectations embody
the extent to which treatment can
practicably be utilized in a cost-effective
manner on a site-specific basis.
Some commenters concluded that the
presence of the expectations in the
regulation would enhance private party
participation in cleanups by relieving
the burden of persuading EPA in each
situation that such expectations, or
remedies consistent with the
expectations, are reasonable and in
compliance with CERCLA.
Another commenter, while supporting
the expectations, expressed concern
that the regulation as proposed would
not adequately ensure that the
expectations would be achieved. EPA
has concluded that the expectations will
be of the most use if maintained as
general principles to assist in flexible,
site-specific decision-making. The
expectations may not be appropriate in
all cases. By stating "expectations"
rather than issuing strict rules, EPA
believes that critical flexibility can be
retained in the remedy selection
process.
This commenter and one other urged
the addition of an expectation that
treatment residuals and contaminated
soils near health-based levels will be
controlled through containment rather
than treatment. The two commenters
recommended language expressing their
views. Although EPA generally concurs
with the suggested expectation, EPA has
not added this specific expectation to
the rule. EPA believes the expectations
in today's rule generally address the
types of waste mentioned by this
commenter.
One commenter urged elimination of
the expectation that treatment is less
likely to be practicable where sites have
large volumes of low concentrations of
material, or where the waste is very
difficult to handle and treat. This
commenter argued that the expectations
combined with the program
management principle of streamlining
could be used to avoid studying
alternatives in detail and could provide
industries with significant incentives to
ignore the "overarching mandate" to
protect human health and the
environment. In response, EPA does not
intend or believe that the expectations
will be used to ignore practicable,
protective alternatives. In any event,
EPA is required by statute to select
protective remedies, which may include
those that involve treatment (preferred)
and those that do not.
In essence, EPA interprets this
commenter's concern to be that
remedies that do not employ treatment
cannot be protective of human health
and the environment. Today EPA
confirms the statement in the preamble
to the proposal that the overarching
mandate of the Superfund program is to
protect human health and the
environment from the current and
potential threats posed by uncontrolled
hazardous waste sites. This mandate
applies to all remedial actions and
cannot be waived. Consistent with the
program expectations, the mandate for
remedies that protect human health and
the environment can be fulfilled through
a variety or combination of means.
These means include the recycling or the
destruction, detoxification, or
immobilization of contaminants through
the application of treatment
technologies. Protection can also be
provided in some cases by controlling
exposure to contaminants through
engineering controls (such as
containment) and/or institutional
controls which prevent access to
contaminated areas. However,
consistent with CERCLA, treatment
remains the preferred method of
attaining protectiveness, wherever
practicable.
3. Management principles. Many
commenters urged greater emphasis on
the program management principles of a
bias for action and streamlining that
appeared in the preamble to the
proposed rule. These commenters
generally believe application of these
principles would expedite cleanups and
maximize reductions in risks to human
health and the environment.
Many commenters advocated
applying the streamlining principle to
screen unnecessary/duplicative/
impracticable remedial action
alternatives and to ensure that the detail
of the RI/FS for a site is commensurate
with the overall risk posed by the site.
Several commenters stated that an
application of the bias for action
principle would encourage early action
to prevent further migration of
contamination pending the completed
remedial action. Consistent with this
principle, a commenter suggested
revising the first sentence of § 300.430(a)
to state that the purpose of the remedial
action process is to reduce risk "as soon
as site data and information make it
possible to do so." EPA agrees with this
recommendation and has added this
language in a new second sentence in
§ 300.430(a).
EPA has incorporated the program
management principles into today's rule
in response to the supportive comments
received. EPA believes placement of
these principles into today's rule
promotes making sites safer and cleaner
as soon as possible, controlling acute
threats, and addressing the worst
problems first.
One commenter argued that EPA
lacks the requisite statutory authority to
promulgate principles such as a bias for
action. In response, EPA was given
considerable discretion in CERCLA
section 104(a)(l) to decide what action
to take in response to releases of
hazardous substances. In the NCP, EPA
has set out provisions for taking various
types of removal and remedial actions.
Thus, it is clearly within EPA's
discretion to decide how to balance the
need for prompt, early actions, against
the need for definitive site
characterization. The bias for prompt
action is wholly consistent with
Congress' concern that CERCLA sites be
addressed in an expeditious manner.
Indeed, in CERCLA section 121(d)(4)(A).
Congress specifically contemplated
early or interim actions, by allowing
EPA to waive ARARs in such cases.
Further, a bias for action is consistent
with EPA's long-standing policy of
responding by distinct operable units at
-------
8704
Federal Register / Vol. 55. No. 46 /Thursday. March 8, 1990 / Rules and Regulations
sites as appropriate, rather than waiting
to take one consolidated response
action. The 1985 NCR originally codified
this policy that remedial actions may be
staged through the use of operable units.
EPA received comments urging the
Agency to strengthen its commitment to
early site action through expanded use
of removal actions at NPL sites without
foreclosing more extensive remedial
actions. In response, EPA encourages
the taking of early actions, under
removal or remedial authority, to abate
the immediate threat to human health
and the environment. Early actions
using remedial authorities are initiated
as operable units. In deciding between
using removal and remedial authorities,
the lead agency should consider the
following: (i) The criteria and
requirements for taking removal actions
in today's rule; (ii) the statutory
limitations on removal actions and the
criteria for waiving those limitations;
(iii) the availability of resources: and
(iv) the urgency of the site problem.
EPA expects to take early action at
sites where appropriate, and to
remediate sites in phases using operable
units as early actions to eliminate,
reduce or control the hazards posed by a
site or to expedite the completion of
total site cleanup. In deciding whether to
initiate early actions. EPA must balance
the desire to definitively characterize
site risks and analyze alternative
remedial approaches for addressing
those threats in great detail with the
desire to implement protective measures
quickly. Consistent with today's
management principles, EPA intends to
perform this balancing with a bias for
initiating response actions necessary or
appropriate to eliminate, reduce, or
control hazards posed by a site as early
as possible. EPA promotes the
responsiveness and efficiency of the
Superfund program by encouraging
action prior to or concurrent with
conduct of an RI/FS as information is
sufficient to support remedy selection.
These actions may be taken under
removal or remedial authorities, as
appropriate.
To implement an early action under
remedial authority, an operable unit for
which an interim action is appropriate is
identified. Data sufficient to support the
interim action decision is extracted from
the ongoing RI/FS that is underway for
the site or final operable unit and an
appropriate set of alternatives is
evaluated. Few alternatives, and in
some cases perhaps only one, should be
developed for interim actions. A
completed baseline risk assessment
generally will not be available or
necessary to justify an interim action.
Qualitative risk information should be
organized that demonstrates that the
action is necessary to stabilize the site,
prevent further degradation, or achieve
significant risk reduction quickly.
Supporting data, including risk
information, and the alternatives
analysis can be documented in a
focused RI/FS. However, in cases where
the relevant data can be summarized
briefly and the alternatives are few and
straightforward, it may be adequate and
more appropriate to document this
supporting information in the proposed
plan that is issued for public comment.
This information should also be
summarized in the ROD. While the
documentation of interim action
decisions may be more streamlined than
for final actions, all public, state, and
natural resource trustee participation
procedures specified elsewhere in this
rule must be followed for such actions.
Several commenters endorsed placing
the expectations and management
principles into the rule to avoid
collection of unnecessary data and
evaluation of too wide a range of
alternatives. Without providing a
specific example, a commenter noted
that many past Superfund cleanups have
experienced the opposite of a bias for
action by including unnecessary and
costly data collection and report
preparation without reaching
conclusions on the recommended site
remediation.
EPA agrees that site-specific data
needs, the evaluation of alternatives and
'documentation of the selected remedy
should reflect the scope and complexity
of the site problems being addressed.
This principle, derived from the
streamlining principle discussed in the
preamble to the proposal, has been
incorporated into today's rule. The goal,
expectations, and management
principles incorporated into the rule,
promote the tailoring of investigatory
actions to specific site needs.
On a project-specific basis,
recommendations to ensure that the RI/
FS and remedy selection process is
conducted as effectively and efficiently
as possible include:
1. Focusing the remedial analysis to
collect only additional data needed to
develop and evaluate alternatives and
to support design.
2. Focusing the alternative
development and screening step to
identify an appropriate number of
potentially effective and implementable
alternatives to be analyzed in detail.
Typically, a limited number of
alternatives will be evaluated that are
focused to the scope of the response
action planned.
3. Tailoring the level of detail of the
analysis of the nine evaluation criteria
(see below) to the scope and complexity
of the action. The analysis for an
operable unit may well be less rigorous
than that for a comprehensive remedial
action designed to address all site
problems.
4. Tailoring selection and
documentation of the remedy based on
the limited scope or complexity of the
site problem and remedy.
5. Accelerating contracting procedures
and collecting samples necessary for
remedial design during the public
comment period.
Although the level of effort and extent
of analysis required for the RI/FS will
vary on a site-specific basis, the
procedures for remedy selection do not
vary by site. The lead agency is
responsible for meeting procedural
requirements, including support agency
participation, soliciting public comment,
developing an administrative record,
and preparing a record of decision.
A more streamlined analysis during
an RI/FS may be particularly
appropriate in the following
circumstances:
1. Site problems are straightforward
such that it would be inappropriate to
develop a full range of alternatives. For
example, site problems may only
involve a single group of chemicals that
can only be addressed in a limited
number of ways, or site characteristics
(e.g., fractured bedrock) may be such
that available options are limited. To the
extent that obvious, straightforward
problems exist, they may create
opportunities to take actions quickly
that will afford significant risk
reduction.
2. The need for prompt action to bring
the site under initial control outweighs
the need to examine all potentially
appropriate alternatives.
3. ARARs, guidance, or program
precedent indicate a limited range of
appropriate response alternatives (e.g.,
PCB standards for contaminated soils,
Superfund Drum and Tank Guidance,
Best Demonstrated Available
Technology (BOAT) requirements).
4. Many alternatives are clearly
impracticable for a site from the outset
due to severe implementability problems
or prohibitive costs (e.g., complete
treatment of an entire large municipal
landfill) and need not be studied in
detail.
5. No further action or extremely
limited action will be required to ensure
protection of human health and the
environment over time. This situation
will most often occur where a removal
measure previously has been taken.
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8705
Comments varied in their support for
the proposed formalization of the
operable unit concept. Some
commenters encouraged EPA to make
full use of the operable unit concept
because it could prevent the worsening
of some site problems. Other
commenters argued against the use of
operable units, stating that Congress
intended cleanups to focus on sites, not
on artificial subdivisions of sites.
The 1985 NCP originally codified the
concept that remedial actions may be
staged through the use of operable units
(former NCP § 300.68(c)). Operable units
are discrete actions that comprise
incremental steps toward the final
remedy. Although EPA agrees that total
site remediation is the ultimate
objective, often it is necessary and
appropriate, particularly for complex
sites, to divide the site or site problems
for effective site management and early
action. Operable units may be actions
that completely address a geographical
portion of a site or a specific site
problem (e.g., drums and tanks,
contaminated ground water) or the
entire site. They may include interim
actions (e.g., pumping and treating of
ground water to retard plume migration)
that must be followed by subsequent
actions which fully address the scope of
the problem (e.g., final ground water
operable unit that defines the
remediation level and restoration
timeframe). Such operable units may be
taken in response to a pressing problem
that will worsen if not addressed, or
because there is an opportunity to
undertake a limited action that will
achieve significant risk reduction
quickly. Consistent with the bias for
action principle in today's rule, EPA will
implement remedial actions in phases as
appropriate using operable units to
effectively manage site problems or
expedite the reduction of risk posed by
the site.
One commenter perceived operable
units as a source of inefficiency. This
commenter criticized the extended
investigative activities associated with
the production of multiple and
overlapping RI/FSs on operable units for
a single site. The commenter advocated
completion of RI/FSs within eighteen
months, absent unusual conditions, and
implementing operable units only where
necessary to reduce an immediate risk
to human health and the environment.
This latter point was supported by
another commenter who feared that use
of an operable unit may provide a false
impression that the project is
progressing rapidly and may result in
greater cost due to duplication of work.
In response, EPA has established as a
matter of policy the goal of completing
RI/FSs (i.e., through ROD signature)
generally within 24 months after
initiation. EPA agrees that duplication of
efforts on RI/FSs should be avoided.
However, EPA supports the operable
unit concept as an efficient method of
achieving safer and cleaner sites more
quickly while striving to implement total
site cleanups. Although the selection of
each operable unit must be supported
with sufficient site data and alternatives
analyses, EPA allows the ROD for the
operable unit to use data and analyses
collected from any RI/FS performed for
the site. No duplication of investigatory
or analytical efforts should occur when
selecting an operable unit for a site.
Although supporting the operable unit
concept, one commenter argued that
unless EPA alleviates the administrative
burdens placed on an operable unit, no
bias for action will be realized. Another
commenter requested clarification of the
procedures required to support the
initiation of action prior to completion of
the RI/FS for the entire site. This
commenter cautioned EPA that
encouragement of early action could
result in actions being taken without a
proper understanding of the site.
According to a different commenter,
application of the streamlining principle
could result in additional and
unnecessary costs to potential
responsible parties by accelerating
contracting procedures and collecting
samples necessary for remedial design
during the public comment period on the
RI/FS and proposed plan. This
commenter feared that the samples
taken before remedy selection may
prove irrelevant to the final selected
remedy.
Similarly, some commenters requested
guidance on operable units and more
specificity on implementing the
streamlining concept. Some commenters
suggested phased RI/FSs and limiting
the collection of data. One commenter
added that a properly implemented
streamlining approach could result in a
more focused RI/FS and would minimize
the collection of unnecessary data. This
commenter cautioned, however, that
poorly implemented streamlining could
result in insufficient data upon which to
base remedy selection, shortened time
frames for settlement discussions, or
actions that are inconsistent with later
remedial actions. In addition, another
commenter noted that documentation
for the remedial action must be
sufficient to support a legal challenge.
EPA acknowledges that the program
management principles in today's rule
are neither binding nor appropriate in
every case; they must be applied as
appropriate. The streamlining principle
supports data collection and
alternatives analyses commensurate
with the scope and complexity of the
site problem being addressed. The
principles focus site investigations and
alternatives analyses while maintaining
the requirement that sufficient
information be obtained for sound
decision-making. The ROD for an
interim remedy implemented as an
operable unit does not necessarily
require a separate RI/FS but instead can
summarize data collected to date that
supports that decision. This procedure
provides an adequate basis on which to
select an interim remedy and thus
safeguards against taking premature
action and avoids duplication among
RI/FSs performed for the site. For
guidance on documenting remedial
action decisions, including operable
units, see the Interim Final Guidance on
Preparing Superfund Decision
Documents (June 1989, OSWER
Directive 9355.3-02).
Some commenters focused on interim
actions, implemented as operable units.
These commenters stressed the
important role of interim action operable
units in furthering the bias for action.
According to these commenters, EPA's
bias for action should be codified in the
regulation to communicate that interim
measures may be a legitimate
component of the remedy selection
process. Another commenter agreed that
greater emphasis is needed on the
importance of interim measures and
added that these interim measures
should be consistent with the remedial
solution likely to be selected.
EPA encourages the implementation
of interim action operable units, as
appropriate, to prevent exposure or
control risks posed by a site. Further
actions will be taken at the site, as
appropriate, to eliminate or reduce the
risks posed. EPA is adding to today's
rule a statement to clarify that operable
units, including interim action operable
units, must neither be inconsistent with
nor preclude implementation of the
expected final remedy.
One commenter supporj^d the use of
interim measures, when appropriate,
and argued that the implementation of
these measures should not be made
contingent on the selection of a final
remedy. According to this commenter,
the RI/FS process should consider the
interim action as one of the possible
remedial alternatives to achieve the
long-term site goals. Similarly, another
commenter stated that it strongly
believes that EPA should use its
available funds to achieve cleanup at
-------
8706
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
the greatest number of sites, thereby
saving resources and reducing overall
risks, rather than trying to attain
extremely low levels of risk at a smaller
number of sites.
While the bias for action promotes
multiple actions of limited scale, the
program's ultimate goal continues to be
to implement final remedies at sites. The
scoping section of today's rule has been
amended to make clear that the lead
agency shall conduct strategic planning
to identify the optimal set and sequence
of actions necessary to address the site
problems. Such actions may include, as
appropriate, removal actions, interim
actions and other types of operable
units. Site management planning is a
dynamic, ongoing, and informal strategic
planning effort that generally starts as
soon as sites are proposed for inclusion
on the NPL and continues through the
RI/FS and remedy selection process and
the remedial design and remedial action
phases, to deletion from the NPL.
This strategic planning activity is the
means by which the lead and support
agencies determine the types of actions
and/or analyses necessary or
appropriate at a given site and the
optimal timing of those actions. At the
RI/FS stage, this effort involves review
of existing site information,
consideration of current and potential
risks the site poses to human health and
the environment, an assessment of
future data needs, understanding of
inherent uncertainties in the process,
priorities among site problems and the
program as a whole, and prior program
experience. The focus of the strategic
planning is on taking action at the site
as early as site data and information
make it possible to do so.
Final rule: Today's rule includes at
| 300.430(a)(l) EPA's goal for remedial
actions to protect human health and the
environment, maintain that protection
over time, and minimize the amount of
untreated waste. In addition, the rule
also sets out expectations regarding the
extent to which treatment is likely to be
practicable for certain types of
situations and problems frequently
encountered by the Superfund program.
These expectations place priority on
treating materials that pose the principal
threats at a given site. The expectations
also acknowledge that certain
technological, economic, and
implementation factors make treatment
impracticable for certain types of site
problems and that other types of
controls may be most effective in these
situations. The bias for action and
streamlining principles are also printed
in the rule.
Name: Section 300.430(a)(l). Use of
institutional controls.
Proposed rule: Proposed
8 300.430(e)(3)(ii) directed that, as
appropriate, one or more alternatives
shall be developed that are based on
engineering controls, such as
containment that prevents exposure to
hazardous substances, and, as
necessary, institutional controls, which
limit human activities at or near
facilities, to protect health and
environment and assure continued
effectiveness of response. The preamble
to the proposed rule gave
"expectations" for remedies, explaining
that institutional controls may be used
as a supplement to engineering controls
over time but should not substitute for
active response measures as the sole
remedy unless active response measures
are not practicable, as determined based
on the balancing of the trade-offs among
alternatives that is conducted during the
selection of the remedy. (53 FR 51423).
Response to comments: Several
commenters supported the proposal as
is, pointing out that there are situations
where institutional controls can be a
primary component of remedial action
either because treatment is not
practicable (as for large volumes of low-
toxicity waste) or because natural
attenuation will restore a resource in the
same time as active remediation.
Several other commenters disagreed
with the proposal because they believe
that institutional controls are not
reliable and are not permitted under the
statute as active, permanent remedies,
except under limited circumstances. One
commenter maintained that institutional
controls should never be used except as
an interim measure. Another commenter
felt that use of institutional controls as
the sole remedy could lead to
institutionalized pollution, and should
only be used if state ARARs are not
violated or cleanup is not feasible.
Similarly, one commenter feared that
the proposal could lead to well
restriction areas or the like; the
commenter also asserted that only state
or local governments, not EPA, have the
authority to restrict water use.
EPA agrees that institutional controls
should not substitute for more active
response measures that actually reduce,
minimize, or eliminate contamination
unless such measures are not
practicable, as determined by the
remedy selection criteria. Examples of
institutional controls, which generally
limit human activities at or near
facilities where hazardous substances,
pollutants, or contaminants exist or will
remain on-site, include land and
resource (e.g., water) use and deed
restrictions, well-drilling prohibitions,
building permits, and well use
advisories and deed notices. EPA
believes, however, that institutional
controls have a valid role in remediation
and are allowed under CERCLA (e.g.,
section 121(d)(2)(B)(ii) appears to
contemplate such controls). Institutional
controls are a necessary supplement
when some waste is left in place, as it is
in most response actions. Also, in some
circumstances where the balancing of
trade-offs among alternatives during the
selection of remedy process indicates no
practicable way to actively remediate a
site, institutional controls such as deed
restrictions or well-drilling prohibitions
are the only means available to provide
protection of human health. Where
institutional controls are used as the
sole remedy, special precautions must
be made to ensure that the controls are
reliable. Further, recognizing that EPA
may not have the authority to implement
institutional controls at a site,
§ 300.510(c)(l) has been revised to
require states to assure that institutional
controls implemented as part of the
remedial action are in place, reliable
and will remain in place after initiation
of operation and maintenance (see
preamble to 5 300.510(c)(l), "State
assurances").
Several other commenters
recommended revisions to enlarge the
scope or availability of institutional
controls. These commenters wanted the
rule to allow institutional controls to be
used as a key component of a remedy
whenever they provide similar
protection to treatment or other active
remedies at much lower cost. The
commenters suggested that such
controls may be the only cost-effective,
practicable remedy at small, isolated,
and stable sites, and that such controls
would be viable at many federal
facilities.
EPA disagrees with suggested
revisions to the NCP that would expand
or encourage the use of institutional
controls in lieu of active remediation
measures. CERCLA section 121 states
Congress' preference for treatment and
permanent remedies, as opposed to
simply prevention of exposure through
legal controls. The evaluation of the
nine criteria (5 300.430(f)(l)(ii)),
including cost and other factors,
determines the practicability of active
measures (i.e., treatment and
engineering controls) and the degree to
which institutional controls will be
included as part of the remedy.
Several commenters suggested that
institutional controls be given a more
explicit role in the rule through
providing criteria for their use, explicitly
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
8707
allowing for their use in interim actions,
or providing that remedies with
institutional controls be considered in
the detailed analysis. EPA believes that
the discussion of an expectation
concerning institutional controls in the
rule is the appropriate level of detail for
guidance in the NCP. Additional, more
specific guidance may be developed
later, if necessary.
Final rule: EPA has added an
expectation on use of institutional
controls in § 300.430(a)(l)(iii)(D). EPA is
promulgating § 300.430(e)(3)(ii) as
proposed.
Name: Section 300.430(b). Scoping.
Existing rule: The 1985 NCP
incorporated the scoping section within
the remedial investigation (RI) section of
the rule (§ 300.68(e)). Under that section.
scoping served as a basis for requesting
funding for removal actions and for the
remedial investigation and feasibility
study (RI/FS). The initial analysis
performed in scoping indicates the
extent to which the release or threat of
release may pose a threat to public
health or welfare or the environment,
indicates the types of removal measures
and/or remedial measures suitable to
abate the threat, and establishes
priorities for implementation. A
preliminary determination of ARARs
also is performed at this stage.
Proposed rule: As proposed, the
purpose of scoping is to define more
specifically the type and extent of
investigative and analytical studies that
are appropriate for a given site. Scoping
entails formal planning for both the RI
and FS. The proposal separated the
scoping section from the RI section to
which it was attached under the 1985
NCP. EPA separated these sections in
the proposal to highlight the work plan
development process and the
development of other project plans (such
as the sampling and analysis plan, the
health and safety plan, and the
community relations plan] that occurs in
the scoping stage.
During scoping, a conceptual
understanding of the site is established
by considering in a qualitative manner,
the sources of contamination, potential
pathways of exposure and potential
receptors. The identification of potential
ARARs and other criteria, advisories
and guidance to be considered will
begin during scoping as lead and
support agencies initiate a dialog on
potential requirements. The main
objectives of scoping are to identify the
types of decisions that need to be made,
to determine the types (including
quantity and quality) of data needed,
and to design efficient studies to collect
these data. The scope and detail of the
investigative studies and alternative
development and analysis should be
tailored to the complexity of site
problems.
Response to comments: One
commenter emphasized that aggressive
scoping should be encouraged to ensure
appropriate streamlining of the RI/FS.
Another urged EPA to highlight the
scoping process in the preamble or in
the rule itself. Another commenter
agreed with EPA's view of scoping as an
important first step in the RI/FS process,
but recommended development of
project plans less formal and lengthy
than those currently used in the
Superfund program.
In response, EPA has incorporated
into today's rule the principles of
streamlining and a bias for action. These
general principles are to be considered
in scoping to assist in defining the
principal threats posed by the site and
to identify likely response scenarios and
potentially applicable technologies and
operable units. EPA has highlighted
scoping by separating it from the text
describing the RI and by specifically
referencing scoping in the new goal and
expectations section of today's rule.
EPA believes the principles and
expectations promote the development
of documents, including project plans,
commensurate with the scope and
complexity of the site problems being
addressed.
One commenter argued that the lead
agency or contractors scoping a project
should be directed to consult with PRPs
or other informed private sector sources
about potentially applicable
technologies, and give this information
serious consideration. This commenter
suggested the following language be
added to the rule: "In scoping the
project, the lead agency shall solicit
relevant information from PRPs or other
private interests that may be in a
position to provide substantive
assistance." This commenter would then
add a statement requiring the lead
agency to consider such information.
Although the suggested language has
not been incorporated into today's rule,
EPA encourages the early participation
of PRPs and the public during scoping
and throughout the RI/FS process. To
the extent PRPs are known to the lead
agency during scoping and a dialog is
occurring among the parties, the PRPs
have the opportunity to participate in
the planning activities and suggest and
evaluate for themselves technologies
worthy of consideration for site
implementation. For example, during
scoping, PRPs can participate in a
"technical advisory committee," which
gathers expertise on the site conditions
and provides substantive assistance to
the lead agency. In addition, the work
plan for a site begins the administrative
record, which is available for review by
the public, including PRPs. PRPs and the
public can also present information and
issues at public meetings. EPA believes
it would be inappropriate to establish in
the NCP an absolute requirement that
the lead agency solicit and consider
information provided by PRPs. The lead
agency must retain the discretion to
determine the scope and quality of
information to be collected and
evaluated.
Several commenters stressed the
importance of early coordination with
natural resource trustees, noting that
valuable technical assistance can be
obtained through such communication.
One commenter offered the opinion that
it would be beneficial and cost-effective
if EPA and the natural resource trustees
worked together on the design of the RI/
FS sampling and analysis plan. To this
end, the commenter suggested that
S 300.430 (b)(5) and (b)(6) of the
proposed rule be reversed, so that
notification comes before the
development of the plans. Some
commenters urged coordination of
natural resource damage assessments
and response actions, arguing that
significant funds may be saved if
opportunities to analyze and assess
natural resources are not lost during
early study and cleanup activities.
In response, EPA agrees that close
communication and coordination with
trustees for natural resources affected or
potentially affected by the release of
hazardous substances from the site is
essential. (See subpart G for details on
the designation and role of natural
resource trustees.) EPA agrees with the
commenter's suggestion to reverse the
order of the sections numbered § 300.430
(b)(5) and (b)(6) in the proposal. Today's
rule places the notification section (now
8 300.430(b)(7)) before the section
providing for the development of certain
plans (now S 300.430(b)(8)). EPA agrees
that coordination with the trustees
during the conduct of the natural
resource damage assessments and
response actions is productive.
However, although a trustee may be
responsible for certain natural resources
affected or potentially affected by a
release, the lead agency retains the
responsibility for managing activities at
the site.
Final rule: Proposed { 300.430(b) is
revised as follows:
1. EPA is clarifying certain aspects of
the scoping phase in the rule to better
reflect the objective of each activity.
Section 300.430(b) of the rule clarifies
the development of a conceptual
-------
8708
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
understanding of the site, the
identification of operable units, the
identification of data quality objectives,
and the development of the field
sampling plan and quality assurance
project plan. In addition, the elements of
the scoping phase have been reordered
to better reflect that the timing of
coordination with natural resource
trustees may influence the development
of sampling plans. This clarification
does not reflect a change in the scope or
function of the scoping process.
2. Proposed § 300.430(b}(6) is
renumbered as § 300.430(b)(7) and is
revised as follows (see preamble
discussion on § 300.615 for explanation):
If natural resources are or may be injured
by the release, ensure that state and federal
trustees of the affected natural resources
have been notified in order that the trustees
may initiate appropriate aciions, including
those identified in subpart G of this part. The
lead agency shall seek to coordinate
necessary assessments, evaluations,
investigations, and planning with such state
and federal trustees.
Name: Section 300.430(d). Remedial
investigation.
Existing rule: The 1985 NCP states in
§ 300.68(d) that an RI/FS shall be
undertaken, as appropriate, to determine
the nature and extent of the threat
presented by the release and to evaluate
proposed remedies. This includes
sampling, monitoring, exposure
assessment, and gathering data
sufficient to determine the necessity for
and proposed extent of the remedial
action.
Section 300.68(e) of the 1985 NCP
specifically discusses characterization
of response actions during the RI. This
process consists of examining available
information to determine the type of
response that may be needed to remedy
the release. Initial analysis shall
indicate the extent to which the release
or threat of release may pose a threat to
human health or the environment,
indicate the types of removal measures
and/or remedial measures suitable to
abate the threat, and set priorities for
implementation of the measures. The
1985 NCP also includes an extensive list
of factors that should be considered in
characterizing and assessing the extent
to which the release poses a threat.
These factors are also used to support
the analysis and design of potential
response actions.
Proposed rule: The proposed rule
separates the discussions, although not
the implementation, of the RI and FS,
and further separates project scoping
from the RI discussion to highlight the
workplan development process, which
addresses both the RI and FS. The
purpose of the RI, as stated in the
proposed NCP, is to collect data
necessary to adequately characterize
the site for the purpose of remedy
selection. Site characterization may be
conducted in one or more phases to
focus sampling efforts and increase the
efficiency of the investigation. Site
characterization activities are to be fully
integrated with the development and
evaluation of alternatives in the FS. To
characterize the site, the lead agency
conducts field investigations and a
baseline risk assessment, and initiates
treatability studies, as appropriate. The
proposed NCP included a list of factors
that are to be considered to characterize
and assess the extent to which the
release poses a threat to human health
or the environment or to support the
analysis and design of potential
response actions (53 FR 51504). This list
of factors, while less detailed than the
1985 NCP, is intended to be more
inclusive, depending on the site-specific
needs. The results of the baseline risk
assessment conducted as part of the RI
(which includes exposure assessment,
toxicity assessment, and risk
characterization components) help
establish acceptable exposure levels for
use in developing remedial alternatives
in the FS. Treatability studies are
initiated to assess the effectiveness of
treatment technologies that may be used
as remedial alternatives on site waste.
ARARs and, as appropriate, other
pertinent advisories, criteria, or
guidance related to the location of the
site or contaminants present are also to
be identified during the RI.
Response to comments: Several
commenters addressed RI site
characterization issues. One commenter
suggested adding the review of state
files and the subpoena of company files
during the RI to enhance site
characterization. In response, EPA notes
its commitment to the consideration of
the best and most appropriate
information available for site
characterization and will review state
files and require the production of
company files as necessary for a site.
Another commenter recommended an
alternative approach to RIs for sites
with ground-water contamination (the
"transport quantification" approach).
Under the transport quantification
approach, environmental sampling
would be phased after the contaminant
transport flow paths and mechanisms
are evaluated. Transport quantification
analysis requires a thorough evaluation
of all data available at that time.
According to the commenter, the prior
quantification and predictive analysis of
transport mechanisms may allow more
realistic and accurate estimates of
actual and potential exposure
concentrations. Additionally, the
commenter voiced concern over
inappropriate investigative methods
used in drilling of ground-water
monitoring wells and soil gas
monitoring.
In response, EPA recognizes the
merits of the suggestions and
observations made by the commenter.
However, EPA believes that technical
decisions on which model or
investigation technique is best suited to
a site is better left to guidance rather
than a rule. Of course, EPA may decide
to use a transport quantification
approach, even if it is not formally
included in the NCP. EPA will consider
the merits of the approach
recommended by the commenter with
respect to the goals and limitations of
the program. EPA is considering
methods to modify investigation of
ground-water aquifers to allow more
efficient remediation of ground water.
EPA is investigating vertical variations
in hydraulic conductivity, methods to
account for contaminant adsorption, and
methods to utilize geophysical
techniques, in addition to specific
investigation of parameters that may
affect monitoring and pump/treatment
of ground water, such as screen length.
As new information becomes available,
it will be incorporated into the
implementation of the RI.
In response to comments raised about
drilling of ground-water wells through
disposal areas, EPA acknowledges that
drilling through waste may not be
appropriate in some situations.
However, at certain sites, it may be
necessary to drill through disposal
areas. In these cases, EPA is aware of
the potential hazards associated with
drilling through wastes and takes
precautions, such as casing the wells
and monitoring the well depths, to
ensure that the wells do not become a
conduit for the spread of contamination
to other aquifers. As to the comment
that soil gas monitoring is an
inappropriate investigative technique,
EPA states that EPA research
laboratories are currently studying soil
gases and their relation to ground-water
contamination. EPA will use the results
of these investigations to modify
existing practices in ground-water
investigations, if appropriate. Interested
members of the public may comment on
the use of such methods on a site-
specific basis during the public comment
period on the proposed plan, or they
may raise such issues at appropriate
times after the initiation of the
administrative record.
Final rule: In order to clarify some
ambiguities in the proposed rule and to
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8709
respond to the above-described and
other comments, EPA is making certain
minor changes to the wording in
§ 300.430(d) of the rule. Field
investigations to assess the nature and
extent to which these releases pose a
threat are emphasized in the
clarifications to the rule.
Name: Section 300.430(d}. Remedial
investigation—baseline risk assessment.
Proposed rule: As part of the remedial
investigation, the baseline risk
assessment is. initiated to determine
whether the contaminants of concern
identified at the site pose a current or
potential risk to human health and the
environment in the absence of any
remedial action. It provides a basis for
determining whether remedial action is
necessary and the justification for
performing remedial actions. The
Superfund baseline risk assessment
process may be viewed as consisting of
an exposure assessment component and
a toxicity assessment component, the
results of which are combined to
develop an overall characterization of
risk. As indicated above, these
assessments are site-specific and
therefore may vary in the extent to
which qualitative and quantitative
analyses are utilized, depending on the
complexity and particular circumstances
of the site, as well as the availability of
pertinent ARARs and other criteria,
advisories or guidance.
During risk characterization,
chemical-specific toxicity information,
combined with quantitative and
qualitative information from the
exposure assessment, is compared to
measured levels of contaminant
exposure levels and to levels predicted
through environmental fate and
transport modeling. These comparisons
determine whether concentrations of
contaminants at or near the site are
affecting or could potentially affect
human health or the environment.
Results of this analysis are presented
with all critical assumptions and
uncertainties so that significant risks
can be identified.
Response to comments: One
commenter requested clarification on
the purpose of risk assessment in the
Superfund program, especially the
baseline risk assessment. EPA responds
that the purpose of risk assessment in
the Superfund program is to provide a
framework for developing risk
information necessary to assist
decision-making at remedial sites. Risk
assessment provides a consistent
process for evaluating and documenting
threats to human health and the
environment posed by hazardous
material at sites. One specific objective
of the risk assessment is to provide an
analysis of baseline risk (i.e., the risks
that exist if no remediation or
institutional controls are applied to a
site). The results of the baseline risk
assessment are used to determine
whether remediation is necessary, to
help provide justification for performing
remedial action, and to assist in
determining what exposure pathways
need to be remediated. The baseline risk
assessment has also superseded the
endangerment assessment, because the
two have the same goal, function, and
methodology.
A second major objective of risk
assessment in Superfund is to use the
risks and exposure pathways developed
in the baseline risk assessment to target
chemical concentrations associated with
levels of risk that will be adequately
protective of human health for a
particular site (i.e., remediation goals). A
similar process is used to assess threats
to ecosystems and the environment and
to develop remediation goals based on
risk to the environment. The
identification of ARARs is not the
purpose of the baseline risk assessment,
as recommended by one commenter.
The identification of ARARs is a
separate part of the RI, because many
ARARs are not directly risk related.
Nevertheless, ARARs should be
addressed consistently in the baseline
risk assessment, the RI/FS, and remedy
selection.
Some commenters supported EPA's
use of site-specific risk assessments
because, in their view, such assessments
more accurately reflect the variety of
site conditions. Several comments,
however, argued against use of a site-
specific risk assessment to evaluate
baseline risks and to establish
remediation goals. One commenter
stated that EPA should be applying
either ARARs or a generic set of
nationally applicable contaminant
concentration standards at all sites to
ensure consistent and uniform cleanup
decisions. This commenter also felt that
the use of site-specific risk assessments
was illegal and served only to confuse
the public about the basis for decisions
to protect human health and the
environment.
EPA agrees with the commenter and
applies ARARs consistently at sites
nationwide, as appropriate to develop
remediation goals. However, ARARs
generally do not provide an adequate
basis on which to determine site risks,
which are complex and often cannot be
reduced to a single number. Further,
EPA notes that CERCLA requires that
all Superfund remedies be protective of
human health and the environment but
, provides no guidance on how this
determination is to be made other than
to require the use of ARARs as
remediation goals, where these ARARs
are related to protectiveness. Under
CERCLA (as under other environmental
statutes), EPA relies heavily on
information concerning contaminant
toxicity and the potential for human
exposure to support its decisions
concerning "protectiveness." EPA's risk
assessment methods provide a
framework for considering site-specific
information in these areas in a logical
and organized way. EPA agrees that a
uniform process should be used to
develop risk assessments and cleanup
levels. EPA disagrees with the
commenter who advocates national
cleanup standards, however, because
the specific concentrations developed
for one site may not be appropriate for
another site because of the nature the
site, the waste, and the potential
exposures as noted above. If EPA does
identify situations in which uniform
national standards under CERCLA
appear to be feasible and appropriate, it
may decide to develop such standards.
The decision to perform site-specific
risk assessments is consistent with
CERCLA section 104(i)(6), which
requires the ATSDR to perform health
assessments for facilities on the
proposed and final NPL. As explained in
section 104(i)(6)(F), these health
assessments shall include assessments
of the "potential risk" to human health
posed by "individual sites", based on
such site-specific factors as the "nature
and extent of contamination" and the
"existence of potential pathways of
human exposure."
EPA recognizes the logical advantages
of establishing consistent preliminary
remediation goals at sites where
contamination and exposure
considerations are similar. To the degree
possible, EPA makes use of chemical-
specific ARARs in determining
remediation goals for Superfund sites.
However, because these standards are
established on a national or statewide
basis, they may not adequately consider
the site-specific contamination or the
cumulative effect of the presence of
multiple chemicals or multiple exposure
pathways and, therefore, are not the
sole determinant of protectiveness.
EPA does agree that a uniform
process should be used to develop risk
assessments and cleanup levels. To
improve program efficiency and
consistency, EPA is providing extensive
guidance for characterizing site-specific
risks and identifying preliminary
remediation goals to protect human
health and the environment in two
-------
8710
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
guidance documents: "Risk Assessment
Guidance for Superfund: Human Health
Evaluation Manual, Part A" No.
9285.701A, July 1989 (Interim Final) and
the "Risk Assessment Guidance for
Superfund Volume II: Environmental
Evaluation Manual," EPA/540/1-89/001,
March 1989 (Interim Final) hereafter
referred to as risk assessment guidance.
The "Human Health Evaluation
Manual" is a revision of the "Superfund
Public Health Evaluation Manual"
(October 1986) and also replaces the
"Endangerment Assessment
Handbook."
EPA received many comments on the
methodology EPA uses to conduct site-
specific risk assessments. EPA conducts
an exposure assessment to identify the
magnitude of actual or potential human
or environmental exposures, the
frequency and duration of these
exposures, and the routes by which
receptors are exposed. This exposure
assessment includes an evaluation of
the likelihood of such exposures
occurring and provides the basis for the
development of acceptable exposure
levels.
Some commenters wanted specific
clarification of the meaning of the
"reasonable maximum exposure
scenario" and how it is to be used. Some
said that the methodology results in
overstated and unrealistic risks and that
the procedures provide significantly
biased estimates of risks that are
several orders of magnitude greater than
actual risks. Several commenters argued
that not only did the risk assessment
methodology that Superfund has used in
the past overestimate risk, but that the
proposal's use of a "reasonable
maximum exposure scenario" would
institutionalize this overestimation of
risk. Some stated that this
overestimation of risk was especially a
problem because both exposures and
the toxicity of chemicals are
overestimated. The combination of the
two in risk characterization leads to the
overstatement of risk. Other
commenters favored the use of the
reasonable maximum exposure scenario
and recommended its inclusion in the
rule. EPA will continue to use the
reasonable maximum exposure scenario
in risk assessment, although EPA does
not believe it necessary to include it as a
requirement in the rule.
EPA responds to the requests for
clarification of the reasonable maximum
exposure scenario and the baseline risk
assessment in the remainder of this
section. In the Superfund program, the
exposure assessment involves
developing reasonable maximum
estimates of exposure for both current
land use conditions and potential future
land use conditions at each site. The
exposure analysis for current land use
conditions is used to determine whether
a human health or environmental threat
may be posed by existing site
conditions. The analysis for potential
exposures under future land use
conditions is used to provide decision-
makers with an understanding of
exposures that may potentially occur in
the future. This analysis should include
a qualitative assessment of the
likelihood that the assumed future land
use will occur. The reasonable
maximum exposure estimates for future
uses of the site will provide the basis for
the development of protective exposure
levels.
Several commenters stated that EPA'8
exposure assessment methodology
overestimates risk, especially if worst-
case assumptions are used. EPA is
clarifying its policy of making exposure
assumptions that result in an overall
exposure estimate that is conservative
but within a realistic range of exposure.
Under this policy, EPA defines
"reasonable maximum" such that only
potential exposures that are likely to
occur will be included in the assessment
of exposures. The Superfund program
has always designed its remedies to be
protective of all individuals and
environmental receptors that may be
exposed at a site; consequently, EPA
believes it is important to include all
reasonably expected exposures in its
risk assessments. However, EPA does
agree with a commenter that
recommended against the use of
unrealistic exposure scenarios and
assumptions. The reasonable maximum
exposure scenario is "reasonable"
because it is a product of factors, such
as concentration and exposure
frequency and duration, that are an
appropriate mix of values that reflect
averages and 95th percentile
distributions (see the "Risk Assessment
Guidance for Superfund: Human Health
Evaluation Manual").
EPA does agree with one commenter
that the likelihood of the exposure
actually occurring should be considered
when deciding the appropriate level of
remediation, to the degree that this
likelihood can be determined. The risk
assessment guidance referenced above
is designed to focus the assessment on
more realistic exposures. EPA has
adopted these positions as policy and
has not revised the regulation. In
addition, EPA agrees that risk
assessments conducted for the
Superfund should take into
consideration background
concentrations and conditions and
should identify these critical
assumptions and uncertainties in its risk
assessments.
One commenter asked EPA to clarify
that both actual and potential risks will
be investigated in the baseline risk
assessment. When considering current
land use, the baseline risk assessment
should consider both actual risks due to
current conditions and potential risks
assuming no remedial action. For
example, these potential risks could
arise by the migration of contaminants
through ground water to wells that are
currently uncontaminated. Future land
use, where it is different from current
use, is an evaluation of only potential
exposures since the future land use
addresses a potential situation. EPA is
clarifying the language in the rule to
indicate that both actual and potential
exposure routes and pathways should
be considered.
In considering land use, Superfund
exposure assessments most often
classify land into one of three
categories: (1) Residential, (2)
commercial/industrial, and (3)
recreational. EPA also considers the
ecological use of the property and, as
appropriate, agricultural use. In general,
the baseline risk assessment will look at
a future land use that is both
reasonable, from land use development
patterns, and may be associated with
the highest (most significant) risk, in
order to be protective. These
considerations will lead to the
assumption of residential use as the
future land use in many cases.
Residential land use assumptions
generally result in the most conservative
exposure estimates. The assumption of
residential land use is not a requirement
of the program but rather is an
assumption that may be made, based on
conservative but realistic exposures, to
ensure that remedies that are ultimately
selected for the site will be protective.
An assumption of future residential land
use may not be justifiable if the
probability that the site will support
residential use in the future is small.
Where the likely future land use is
unclear, risks assuming residential land
use can be compared to risks associated
with other land uses, such as industrial,
to estimate the risk consequences if the
land is used for something other than
the expected future use.
Some commenters recommended
performing the baseline risk assessment
assuming that institutional controls
were in place and effective at
preventing exposure. EPA disagrees that
the baseline risk assessment is the
proper place to take institutional
controls into account. The role of the
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8711
baseline risk assessment is to address
the risk associated with a site in the
absence of any remedial action or
control, including institutional controls.
The baseline assessment is essentially
an evaluation of the no-action
alternative. Institutional controls, while
not actively cleaning up the
contamination at the site can control
exposure and, therefore, are considered
to be limited action alternatives. The
effectiveness of the institutional controls
in controlling risk may appropriately be
considered in evaluating the
effectiveness of a particular remedial
alternative, but not as part of the
baseline risk assessment.
Some commenters stated that use of
EPA's toxicity values will lead to
overestimation of risk because they
incorporate uncertainty factors or
"margins of safety" that will bias the
estimate of risk. EPA responds that the
toxicity assessment component of
Superfund risk assessment considers the
following: (1) The types of adverse
health or environmental effects
associated with chemical exposures; (2)
the relationship between magnitude of
exposures and adverse effects; and (3)
related uncertainties such as the weight-
of-evidence for a particular chemical's
carcinogenicity in humans. EPA
recognizes that toxicity values do
incorporate "uncertainty factors."
Because the toxicity information is
usually derived from studies of
industrial workers or test animals, the
size of these uncertainty factors is
generally determined by the confidence
that effects seen in these studies will
manifest themselves in humans exposed
at Superfund sites. Larger uncertainty
factors are generally used to ensure that
protective levels are identified when
considering data with greater
uncertainty. It should be noted that
weights-of-evidence (and uncertainty
factors) are not directly related to
toxicity. For example, a high weight-of-
evidence indicates only a high
confidence that a chemical will cause
cancer in humans. A high confidence in
a toxicity value reflects a consensus that
the value is not likely to change.
One commenter argued that EPA, or
other lead agency, must consider
information on toxicity that PRPs or
interested parties bring to their attention
during the public comment period. In
response, EPA will, of course, consider
such public comments submitted on
toxicity. However, it is important to note
that the Superfund risk assessment
process typically relies heavily on
existing toxicity information or profiles
that EPA has developed on specific
chemicals. EPA believes that the use of
a consistent data base of lexicological
information is important in achieving
comparability among its risk
assessments. This information generally
includes estimated carcinogen
exposures that may be associated with
specific lifetime cancer risk probabilities
(risk-specific doses or RSDs), and
exposures to noncarcinogens that are
not likely to present appreciable risk of
significant adverse effects to humans
(including sensitive subgroups) over
lifetime exposures (reference doses or
RfDs). EPA has also developed toxicity
information for some ecosystem
receptors. Where no lexicological
information is available in EPA's data
base, then EPA routinely considers other
available information, including
information provided by PRPs or other
interested parties. Depending on the
evidence, however, EPA may feel it is
not appropriate to assess the toxicity of
specific chemicals quantitatively
because of the questions of reliability
and consistency in data development.
EPA may decide to address these
chemicals qualitatively.
The results of the baseline risk
assessment are used to understand the
types of exposures and risks that may
result from Superfund sites. Key
assumptions and uncertainties in both
contaminant toxicity and human and
environmental exposure estimates must
be documented in the baseline risk
assessment, as well as the sources and
effects of uncertainties and assumptions
on the risk assessment results. Exposure
assumptions or other information, such
as additional toxicity information, may
be evaluated to determine whether the
risks are likely to have been under- or
overestimated. These key assumptions
and uncertainties must also be
considered in developing remediation
goals.
Several commenters suggested that
the baseline risk assessment should be
used to determine whether particular
requirements were applicable or
relevant and appropriate for a site. EPA
believes that this determination must be
made independently from the risk
assessment, although EPA agrees that
the assumptions used in the risk
assessment should be consistent with
those used to determine what
requirements will be ARAR for a site.
Risk assessment and ARARs serve
different functions. The identification of
ARARs is used to identify remediation
goals and to indicate how remedial
alternatives are to be implemented. In
contrast, the risk assessment is a
technical analysis of the risks posed by
hazardous materials at a site.
Consequently, it would be inappropriate
for these two elements of the RI/FS to
be done together.
Final rule: Proposed I 300.430(d)(4) of
the rule has been clarified to indicate
that both current and potential
exposures and risks are to be
considered in the baseline risk
assessment. No other changes have
been made to the rule on risk
assessment. The reference to advisories,
criteria or guidance in § 300.430(d)(3)
has been modified (see preamble section
below on TBCs).
Name: Section 300.430(e). Feasibility
study.
Existing rule: The 1985 NCP states in
§ 300.68(d) that a remedial
investigation/feasibility study (RI/FS)
shall, as appropriate, be undertaken to
determine the nature and extent of the
threat presented by the release and to
evaluate proposed remedies. Part of the
RI/FS may also involve assessing
whether the threat can be prevented or
minimized using source control
measures or whether additional actions
will be necessary because the
hazardous substances have migrated
from the area of their original location.
The 1985 NCP discusses FS
development of alternatives in
§ 300.68(f), stating that to the extent it is
possible and appropriate, at least one
alternative should be developed in each
of the following categories:
(1) Treatment alternatives; (2)
alternatives that attain ARARs; (3)
alternatives that exceed ARARs; (4)
alternatives that do not attain ARARs;
and (5) a no-action alternative. The
alternatives should, as appropriate,
consider and integrate waste
minimization, destruction, and recycling.
The alternatives developed under
§ 300.68(f) are subject to an initial
screening to narrow the list of potential
remedial actions for further detailed
analysis. The alternatives that remain
after the initial screening must undergo
a detailed analysis to evaluate and
analyze each alternative against a set of
specific criteria. The results of this
analysis provide the basis for
identifying the preferred alternative.
As specified in $ 300.68(i), the
appropriate extent of remedy will be
determined by the lead agency's
selection of a cost-effective remedial
alternative that effectively mitigates and
minimizes threats to, and provides
adequate protection of, public health
and welfare and the environment. This
determination will require that a
remedy, except in certain specified
situations, attain or exceed federal
public health and environmental
ARARs. In selecting the appropriate
-------
8712
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
remedy, the lead agency will consider
cost, technology, reliability,
administrative and other concerns, and
their relevant effects on public health
and welfare and the environment. If
there are no ARARs, the lead agency
will select the cost-effective alternative
that effectively mitigates and minimizes
threats, and provides adequate
protection to public health and welfare
and the environment.
Proposed rule: The requirements of
SARA led to significant changes in the
feasibility study section of the 1985 NCP,
primarily in the range of alternatives
that are developed for consideration in
the FS and in the development of the
nine criteria, based on mandates and
factors to consider specified by the
statute, for analysis of the alternatives.
The proposed rule separates the
discussion of the FS from the RI. In
i 300.430(e), the proposed NCP states
that the primary objective of the FS is to
ensure that appropriate remedial
alternatives are developed and
evaluated such that relevant information
concerning the waste management
options can be presented to a decision-
maker and an appropriate remedy
selected. The regulation requires the
development and evaluation of
alternatives to reflect the scope and
complexity of the remedial action under
consideration and the site problems
being addressed. During the FS,
alternatives are developed to protect
human health and the environment by
eliminating, reducing, and/or controlling
risks posed through each pathway by a
site. The number and type of
alternatives that are analyzed is
determined according to site-specific
circumstances.
The first step in the FS process
involves developing remedial action
objectives for protecting human health
and the environment which should
specify contaminants and media of
concern, potential exposure pathways,
and preliminary remediation goals. The
preliminary remediation goals are
concentrations of contaminants for each
exposure route that are believed to
provide adequate protection of human
health and the environment based on
preliminary site information. These
goals are also used to assist in setting
parameters for the purpose of evaluating
technologies and developing remedial
alternatives. Because these preliminary
remediation goals typically are
formulated during project scoping or
concurrent with initial RI activities (i.e..
prior to completion of the baseline risk
assessment), they are initially based on
readily available environmental or
health-based ARARs (e.g., maximum
contaminant levels (MCLs)), ambient
water quality criteria (WQCJ) and other
criteria, advisories, or guidance (e.g.,
reference doses (RfDs)). As new
information and data are collected
during the RI, including the baseline risk
assessment, and as additional ARARs
are identified during the RI, these
preliminary remediation goals may be
modified as appropriate to ensure that
remedies comply with CERCLA's
mandate to be protective of human
health and the environment and comply
with ARARs.
During the development and analysis
of alternatives, the risks associated with
potential alternatives, both during
implementation and following
completion of remedial action, are
assessed, based on the reasonable
maximum exposure assumptions and
any other controls necessary to ensure
that exposure levels are protective and
can be attained. These are generally
assessed for each exposure route unless
there are multiple exposure routes
where combined effects may have to be
considered. For all classes of chemicals,
EPA uses health-based ARARs to set
remediation goals, when they are
available. When health-based ARARs
are not available or are not sufficiently
protective due to multiple exposures or
multiple contaminants, EPA sets
remediation goals for noncarcinogenic
chemicals such that exposures present
no appreciable risk of significant
adverse effects to individuals, based on
comparison of exposures to the
concentration associated with reliable
loxicity information such as EPA's
reference doses. Similarly, when an
ARAR does not exist for carcinogens.
EPA selects remedies resulting in
cumulative risks that fall within a
proposed range of 10"4 to 10"'
incremental individual lifetime cancer
risk (revised in final rule to 10"4 to 10"*),
based on the use of reliable cancer
potency information such as EPA's
cancer potency factors. In addition, EPA
will set remediation goals for ecological
and environmental effects based on
environmental ARARs, where they
exist, and levels based on site-specific
determination to be protective of the
environment.
Once the remediation goals have been
established, potentially suitable
technologies, including innovative
technologies are also identified,
evaluated, and assembled into
alternative remedial actions that are
designed to meet the remediation goals
established according to the principles
stated in the previous paragraph. The
proposed NCP directs that certain types
of alternatives must be developed, as
appropriate, for source control and
ground-water response actions, and
describes the requirements for
developing innovative treatment
alternatives and no-action alternatives.
The short- and long-term aspects of
three criteria (i.e., effectiveness,
implementability, cost), will, as
appropriate, guide the development and
screening of alternatives.
Alternatives that remain after the
initial screening must undergo a detailed
analysis that consists of an assessment
of individual alternatives against each
of the nine evaluation criteria. These
criteria are:
(1) Overall protection of human health
and the environment;
(2) Compliance with ARARs;
(3) Long-term effectiveness and
permanence;
(4) Reduction of toxicity, mobility, or
volume;
(5) Short-term effectiveness;
(6) Implementability;
(7) Cost;
(8) State acceptance; and
(9) Community acceptance.
Response to comments: 1. Remedial
action objectives and remediation goals.
One commenter recommended that
remedial action objectives be
established in the RI rather than the FS
because the commenter feels they are
needed early in the process so that they
may be used as part of the baseline risk
assessment. EPA agrees that remedial
action objectives are needed early in the
process. However, EPA believes that
putting the remediation goals as the first
step of the FS accomplishes this
objective and does not delay the
development of remediation goals
because the RI and FS are not sequential
but rather concurrent processes. In fact,
remediation objectives and goals are
initially developed at the workplan
stage, prior to the commencement of RI/
FS activities. In addition, the
remediation goals are not necessary for
the baseline risk assessment. Rather, the
results of the baseline risk assessment
are used to either confirm that the
preliminary remediation goals are
indeed protective or to lead to the
revision of the remediation goals in the
proposed plan.
Another commenter suggested that
preliminary remediation goals be
reviewed when developing the remedial
action objectives. This comment reflects
widespread confusion about the
remedial action objectives and
remediation goals. Several conunenters
asked for clarification of these two
concepts. The remedial action objectives
are the more general description of what
the remedial action will accomplish.
-------
Federal Register / Vol. 55. No. 46 / Thursday, March 8. 1990 / Rules and Regulations
8713
Remediation goals are a subset of
remedial action objectives and consist
of medium-specific or operable unit-
specific chemical concentrations that
are protective of human health and the
environment and serve as goals for the
remedial 'action. The remedial action
objectives aimed at protecting human
health and the environment should
specify: (1) The contaminants of
concern, (2) exposure routes and
receptors, and (3] an acceptable
contaminant level or range of levels for
each exposure medium (i.e., a
preliminary remediation goal). Remedial
action objectives include both a
contaminant level and an exposure
route recognizing that protectiveness
may be achieved by reducing exposure
as well as reducing contaminant levels.
As noted above, the preliminary
remediation goals are the more specific
statements of the desired endpoint
concentrations or risk levels. Initially,
they are based on readily available
information, such as chemical-specific
ARARs (e.g., MCLs, WQCs) or
concentrations associated with the
reference doses or cancer potency
factors. As the RI proceeds and
information from the baseline risk
assessment becomes available, the
preliminary goals may be modified due,
among other things, to consideration of
site-related exposure through multiple
exposure pathways or exposure to
multiple chemicals, either of which may
raise the cumulative risk from chemicals
of concern at the site out of the risk
range. The initial development of
preliminary remediation goals is not
intended to be a lengthy undertaking,
although remediation goals are revised
throughout the RI/FS process as
additional information becomes
available.
The development of preliminary
remediation goals serves to focus the
development of alternatives on remedial
technologies that can achieve the
remedial goals, thereby limiting the
number of alternatives to be considered
in the detailed analysis. This focusing is
one means of implementing the
program's expectation for streamlining
the remedial process. Information to
develop final remediation goals is
developed as part of the RI/FS process.
Consequently, the use of preliminary
remediation goals does not preclude the
development and consideration or
selection of alternatives that attain other
risk levels. Final selection of the
appropriate level of risk is made based
on the balancing of criteria in the
remedy selection step of the process.
Language in the regulation has been
revised to clarify the development of
remediation goals.
One commenter felt the remediation
goals should be based only on ARARs
and that EPA has no authority to require
compliance with anything but ARARs,
although the commenter acknowledges
that other information may be necessary
when ARARs are not available. EPA
disagrees that it has no authority to
comply with anything but ARARs.
ARARs do not exist for all exposure
media (e.g., certain types of
contaminated soil) or for all chemicals,
and therefore, EPA must use other
information to set remediation goals that
will ensure protection of human health
and the environment as required by
statute. EPA intends that this will focus
on the EPA-developed toxicity
information (cancer potency factors and
the reference doses for noncarcinogenic
effects). If neither ARARs nor EPA-
derived toxicology information are
available, other information will be
used, as necessary, to determine what
levels are necessary to protect human
health and the environment (e.g., state
guidelines on what is protective for a
certain chemical).
Where ARARs do not exist or where
the baseline risk assessment indicates
that cumulative risks—due to additive
or synergistic effects from multiple
contaminants or multiple exposure
pathways—make ARARs nonprotective,
EPA will modify preliminary
remediation goals, as appropriate, to be
protective of human health and the
environment. For cumulative risks due
to noncarcinogens, EPA will set the
remediation goals at levels for
individual chemicals such that the
cumulative effects of exposure to
multiple chemicals will not result in
adverse health effects. EPA is clarifying
the language in the rule in response to a
commenter to indicate that an
acceptable exposure for noncarcinogens
is one to which human populations,
including sensitive subgroups such as
pregnant women and children, may be
exposed without adverse effects during
a lifetime or a part of a lifetime,
incorporating an adequate margin of
safety. The phrase "part of a lifetime" is
added to clarify that protective levels
will be set for less than lifetime
exposures, as appropriate. In general,
acceptable chemical concentrations are
lower for lifetime exposure than other
exposure durations.
EPA will set remediation goals for
total risk due to carcinogens that
represent an excess upperbound lifetime
cancer risk to an individual to between
10"4 to 10~* lifetime excess cancer risk.
A cancer risk of 10"' will serve as the
point of departure for these remediation
goals. EPA is clarifying, based on a
recommendation from a commenter, that
all preliminary remediation goals will be
set so that they are protective for
sensitive subpopulations, such as
pregnant women and children.
Comments on the use of a cancer risk
range and a point of departure for the
establishment of remediation goals are
addressed in preamble sections below.
Remedial action objectives and
remediation goals should be set for
appropriate environmental media, and
performance standards established for
selected engineering controls and
treatment systems including controls
implemented during the response
measure. While points of compliance for
attaining these remediation levels are
established on a site-specific basis, as
supported by some commenters, there
are general policies for establishing
points of compliance. For ground water,
remediation levels should generally be
attained throughout the contaminated
plume, or at and beyond the edge of the
waste management area when waste is
left in place. For air, the selected levels
should be established for the maximum
exposed individual, considering
reasonably expected use of the site and
surrounding area. For surface waters,
the selected levels should be attained at
the point or points where the release
enters the surface waters. (See preamble
section on ARARs for further
information on points of compliance.)
One commenter objected to the use of
the "reasonable maximum exposure
scenario" in the development of
remediation goals, as described in the
preamble to the proposed rule. In
particular, the commenter objected to
the use of the reasonable maximum
exposure concept given the lack of
definition and criteria on which to apply
it. EPA believes that Superfund
remedies need to be protective of all
individuals exposed through likely
exposure pathways, not just large
populations, as suggested by another
commenter. To that end EPA developed
the concept of reasonable maximum
exposure, which is designed to include
all exposures that can be reasonably
expected to occur, but does not focus on
worst-case exposure assumptions. EPA
has clarified the definitions and
discussion of the reasonable maximum
exposure in today's preamble discussion
of the baseline risk assessment.
Another commenter expressed
concern that even though a risk
assessment shows a particular remedy
is protective, EPA will set remediation
goals at more stringent levels based on
policy, criteria, or guidelines (not
-------
871A
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
regulations). EPA responds that it is the
goal of the Superfund program to select
remedies that protect human health and
the environment, maintain that
protection over time, and minimize
untreated waste. The risk assessment is
one factor in the determination of what
is protective. EPA does not arbitrarily
select remediation goals that exceed
levels determined to be protective.
2. Development and screening of
alternatives. Regarding the development
of alternatives, several commenters
stated that there is no justification for
requiring an array of alternatives to be
developed in every situation.
Commenters were particularly
concerned about situations where
certain options were precluded by site
conditions (e.g., municipal landfills
where treatment of all site wastes is
impracticable). One commenter
suggested that § 300.430(e)(3)(ii) be
deleted, since, in the commenter's
opinion, there was no justification for
requiring a containment alternative to
be developed for every Superfund site,
even when the scoping phase indicated
that a range of treatment-based
remedies is appropriate. Another
commenter recommended specific
revisions to § 300.430{e) to clarify this
point.
EPA agrees with the commenter that
focusing the development of alternatives
only on those that show promise in
achieving the goals of the Superfund
program is a significant means by which
the program can streamline the process
and achieve more rapid cleanup.
However, EPA feels that this flexibility
is already present in the rule which
repeatedly states that alternatives
should be developed, as appropriate, for
the particular situation at the site. This
means that if treatment is not
practicable for all wastes at the site,
then complete treatment need not be
included as an alternative.
Alternatively, if it is clear that treatment
will be part of the remedy, alternatives
that rely solely on containment or
institutional controls and that do not
include treatment need not be
considered. This practice is consistent
with the program expectations
discussed above.
Two commenters stated that the
proposed approach for development and
screening of alternatives is biased
against innovative technologies, since
there appears to be a strong tendency
for EPA to select remedies that have
been previously proven to be successful.
One commenter asserted that it was not
clear how EPA would evaluate
innovative technologies in the screening
analysis. EPA would like to clarify that
it does not intend to inhibit the
development of innovative technologies
in the development and screening of
alternatives. EPA has deleted the
requirement in the final rule that
innovative technologies must offer
"better" performance than proven
technologies. Instead, EPA has stated its
intent to consider those innovative
technologies that offer the potential for
comparable or superior performance or
implementability; fewer or lesser
adverse impacts than other available
approaches; or lower costs for similar
levels of performance than
demonstrated treatment technologies.
By providing for the consideration of
innovative technologies, EPA intends to
eliminate from consideration only those
innovative technologies that have little
potential for performing well at specific
sites.
As part of the encouragement of
innovative technologies that EPA
expects to result from this provision,
EPA is emphasizing the need for
performing treatability studies earlier in
the remedial process. Because
innovative technologies may not have
been as thoroughly demonstrated,
treatability studies during the Rl/FS
may be necessary to provide
information sufficient for an appropriate
evaluation of these technologies. The
goal of treatability studies is to establish
through the use of good science and
engineering, the probable effectiveness
of innovative technologies. EPA has
issued guidance that further encourages
the use of innovative treatment
technologies in "Advancing the Use of
Treatment Technologies for Superfund
Remedies" (OSWER Directive 9355.0-
26).
One commenter requested that
J 300.430(e)(3) be revised to clarify that
off-site disposal in a secure facility
without treatment may be selected as a
partial or complete remedy. The
commenter also addressed in detail one
particular alternative that the NCP and
guidance should suggest for
consideration and analysis (i.e., use of
the site, once remediated, as a solid
waste management unit). EPA agrees
with the commenter that off-site
disposal without treatment may be
selected as the remedy in appropriate
circumstances, such as where the site
has high volumes of low toxicity waste.
However, the statute clearly indicates
that this is the least preferred
alternative. EPA believes that this
comment most directly addresses the
remedy selection, not the feasibility
study, and has modified proposed
$ 300.430(f)(3)(iii) (5 300.430(f)(l)(ii)(E) in
the final rule) to acknowledge that off-
site disposal without treatment can
potentially be an appropriate alternative
while recognizing the statutory bias
against it. As to the commenter's second
point, nothing in the NCP prohibits the
use of remediated sites as RCRA solid
waste management units, provided all
requirements under RCRA and other
applicable laws, including permitting
requirements, are met, and any CERCLA
off-site policy/rule requirements are
satisfied (OSWER Directive No. 9834.11
(November 13.1987); 40 CFR 300.440
(proposed)(53 PR 48218, November 29,
1988)).
With reference to the screening of
alternatives, several commenters
supported EPA's proposal to allow the
elimination of alternatives at the
screening stage on the basis of cost.
Some of these commenters suggested
that determination of cost-effectiveness
be made an explicit screening step,
noting that Congress requires that
remedies be cost-effective. They argued
that inadequate consideration of cost
will lead to inefficient use of the Fund
and may result in some sites not being
addressed. One commenter stated that
the inability to eliminate cost-ineffective
remedies early in the remedy selection
process results in a misallocation of
time, effort, and funds.
Other commenters opposed using cost
as a criterion during the preliminary
screening of alternatives. One
commenter argued that many
alternatives are rejected based on
inadequate cost data. Another
commenter stated that eliminating
remedial alternatives based on
* consideration of cost before the ultimate
health-based standards or levels of
control are determined was
inappropriate and illegal.
In response to comments received on
the role of cost in the development and
screening of alternatives, EPA has
clarified the role of cost in screening of
alternatives. Screening is to be
performed to eliminate from further
consideration those alternatives that are
not effective, not implementable, or
whose costs are grossly excessive for
the effectiveness they provide. This last
category would include those situations
where cost is so excessive that a remedy
is virtually unimplementable and is,
therefore, impracticable to consider.
Specifically, when alternatives vary
significantly in their effectiveness, cost
may be considered in conjunction with
other factors to determine which
alternatives are inordinately costly for
the effectiveness they provide. For
example, where total treatment of a
large municipal landfill has been
considered initially as a remedial
-------
Federal Register / Vol. 55, No. 46 / Thursday. March 8, 1990 / Rules and Regulations
8715
alternative, this alternative will likely be
eliminated from further consideration
due to the large volume of material for
which treatment capacity is not
available and for which costs are
extremely high.
The other situation where cost may
result in the elimination of an
alternative during screening is where
two or more alternatives are determined
to provide similar levels of effectiveness
and implementability by using a similar
method of treatment or engineering
control but their costs vary significantly.
In this case, cost can be used to
eliminate from further consideration the
more costly alternatives. For example, if
soil washing and bioremediation are
expected to be similarly effective, but
bioremediation is significantly more
costly, the bioremediation alternative
could be eliminated from further
consideration while the soil washing
option would be carried through to
detailed analysis.
One commenter argued against
considering cost in screening because
the use of potentially inadequate cost
data available in this stage of the
remedial process may result in the
elimination of viable alternatives. EPA
responds that while cost data are
continuously being developed, at the
screening stage cost data of sufficient
quality are usually available to
determine whether the cost of an
alternative is "grossly excessive" or
significantly more costly for the results
it provides. EPA believes that this
screening should be used to help
streamline the detailed analysis.
Finally, one commenter suggested that
if there is proper coordination with
natural resource trustees during the
development of alternatives, trustee
recommendations concerning, for
example, appropriate mitigation for
wetlands impacts and cost-effective
restorations, may be incorporated into
project plans. The commenter believed
this would facilitate trustee
determinations as required in section
122(j)(2) of CERCLA. EPA agrees that
coordination with natural resource
trustees during the development of
alternatives is important. Today's rule
indicates in several sections
(51 300.615(c), 300.410(g), and
300.430(b)(7)) that the lead agency
should seek to coordinate with the
natural resource trustees. In fact,
§ 300.615 of this rule addresses a variety
of natural resource trustee issues,
including coordination and cooperation
between multiple trustees and the lead
agency.
Final rule: Several changes are being
made to proposed § 300.430(e), the
feasibility study section, primarily to
clarify the feasibility study role and
process.
1. The kinds of alternatives that are
developed during the feasibility study
have been expanded to indicate that
recycling may be used to protect human
health and the environment by
eliminating, reducing and/or controlling
risks at a site. Discussion of this change
is found in the response to comments for
the detailed analysis of alternatives.
2. Language in the regulation at
§ 300.430(e)(2)(i) has been clarified to
indicate that preliminary remediation
goals are initially developed based on
easily available information, such as
ARARs and other reliable information.
This reliable information will likely be
EPA-developed toxicity information (i.e.,
reference doses and cancer potency
factors). As further information becomes
available, then other factors listed in
paragraphs (e)(2)(i) (A), (B), and (C) will
be considered. In addition, the
description of ARARs in
§ 300.430(e)(2)(i)(A) is revised (see
preamble section below on definition of
"Applicable"). Further, the language in
| 300.430(e)(2)(i)(A)(7) is revised for
clarity. Sections 300.430(e)(2)(i)(A) (2)
and [3] of the proposal are being
combined in the final rule to indicate
that exposure to multiple contaminants
and multiple exposure pathways are
situations that may result in ARARs
being nonprotective. Language in
§ 300.430(e)(2)(i)(G) is being added to
indicate that where environmental
ARARs do not exist, environmental
evaluations, especially focusing on
sensitive ecosystems and critical
habitats of species protected under the
Endangered Species Act, will provide
information for developing remediation
goals. These changes are being made to
clarify the proposal and do not represent
any change in the remedial process.
3. See ARARs preamble sections
below for other additions or revisions to
5 300.430(e)(2)(i): "Use of maximum
contaminant level goals for ground
water," "Use of federal water quality
criteria (FWQC)," and "Use of alternate
concentration limits (ACLs),"
4. Section 300.430(e)(6) has been
revised to clarify that a no-action
alternative may be appropriate where a
removal or remedial action has already
occurred at a site.
5. The provision on the development
of alternatives that use innovative
technologies is being revised to indicate
that an innovative technology need only
offer the potential to be comparable in
performance or implementability to
demonstrated technologies to warrant
further consideration in the detailed
analysis step.
6. Two factors used in the screening of
alternatives are being revised. ARAR
compliance and reduction of toxicity,
mobility or volume through treatment
are being added as considerations in
determining effectiveness. This revision
corrects an inadvertent omission in the
proposal. The role of cost in screening
alternatives has been revised to indicate
that alternatives may be screened on
costs in two ways. First, an alternative
whose cost is grossly excessive
compared to the effectiveness it
provides may be eliminated in
screening. Second, if two or more
alternatives provide similar levels of
effectiveness and implementability
using a similar method of treatment or
engineering control, the more expensive
may be eliminated from further
consideration.
7. The references to advisories,
criteria or guidance in | 300.430(e) (8)
and (9) have been modified (see
preamble section below on TBCs).
Name: Section 300.430(e)(2). Use of
risk range.
Proposed rule: Proposed
§ 300.430(e)(2)(i)(A)(2) states that for
known or suspected carcinogens,
acceptable exposure levels are generally
concentration levels that represent an
excess upperbound lifetime cancer risk
to an individual of between 10" * and
10"' (53 FR 51426 and 51505).
Response to comments: A few
commenters supported the proposed risk
range of 10"4to 10"', though generally
with qualifications. One commenter's
position on the point of departure makes
clear that they view the risk range only
as a fallback when 10"6 cannot be
attained. Another commenter supporting
the proposed risk range argued that the
risk range should be used only as a
guideline, in order to provide lead
agencies with sufficient flexibility.
Another commenter said that they could
support the proposed range, but their
comments clearly favor revision to a
range of 10"* to 10~* as the really
operative part. Several commenters (see
below) supported a more stringent risk
range or level.
Many commenters favored a less
stringent range, i.e., one whose lower
risk bound is higher than 10"' and
whose upper bound may even exceed
10"4, while some favored a more
stringent range or a single, stringent
target cleanup level. A few commenters
recommended dispensing with the use of
a risk range or risk assessment
altogether as a basis for cleanup in favor
of what they maintained are more
stringent levels (background or
statutorily specified ARARs). Several
-------
8716
Federal Register / Vol. 55, No. 46 / Thursday, March 8. 1990 / Rules and Regulations
commenters pointed out that risk
assessment methodology is as important
as the range chosen.
The majority in favor of a less
stringent range generally supported a
risk range of 10"4 to 10"6. A number of
reasons were given in support of this
alternative. The most commonly
repeated reason is that the narrower,
higher risk range is consistent with risk
management decisions made in other
EPA regulatory programs and in federal
regulatory agencies in general.
Commenters argued that allowing a
lower risk on the order of 10~7 would be
"unprecedented" and "indefensible," far
less than many commonly accepted
risks or the accepted de minimis level.
Some also noted that no Superfund
action has ever cleaned up to this
stringent level. Another commenter
stated that recent judicial decisions
support the use of a narrower risk range.
One commenter suggested a slightly
different range of 10"s to 10"sin order to
limit the pressure for less protective
remedies.
Other reasons for opposing a risk
range with a boundary at 10~7 are that
such a range could lead to fewer
cleanups of high-risk sites or less overall
risk reduction, which would misallocate
scarce resources (the Superfund) and be
contrary to the statutory mandate for
cost-effectiveness; that it is impossible
to detect many chemicals at this low
level; that it is not technologically
feasible in many cases to achieve this
level; that risk assessment already
incorporates conservative assumptions;
and that the broader, more stringent
range complicates analysis of
alternatives in the FS. One commenter
pointed out that the more stringent level
may be suitable for highly toxic
chemicals such as pesticides, but
otherwise it is not worth the additional
cost. Another commenter charged that
EPA's choice of the lower bound was
improperly intended to bias selection of
remedy toward treatment technologies,
because it is clearly not necessary for
protection of health.
Several commenters argued against
the proposed risk range in favor of
setting the overall cleanup level for the
remedy at no higher than 10"6. They
argued that because risk assessment is
fraught with uncertainty, remedies
should always protect to this level at a
minimum, regardless of the levels of
individual ARARs. Commenters
recognized that it may not be feasible to
achieve 10"8, or there may be
"extraordinary circumstances" that
preclude this level; in such cases one
commenter proposed an upper bound of
10"*
These commenters also had problems
with the specific boundaries proposed
by EPA. One commenter said that 10~*
is too great a risk, and even 10"7 may be
as well; they found the alternative of
10~* to 10~* to be unacceptable,
although they did not say what risk level
or approach would be preferable. They
disputed the validity of the argument
relating risk level and number of sites
cleaned up because of the availability of
PRPs. One commenter, while preferring
a risk range to a single level, suggested
that 10"5 rather than 10~4 might be more
protective as the upper bound for one or
two chemicals because the conservative
assumptions become additive for more
than two chemicals. Another commenter
argued that an upper bound at 10"5 is
needed because a state agency would
have difficulty supporting or justifying
using a higher risk level. A commenter
expressed concern that a risk range
might preclude more protective remedies
that can practicably be achieved at little
additional cost. One commenter argued
that levels below 10"7 should be
permissible, and that any limit at the
lower end would undermine the state in
negotiating with PRPs. A commenter
suggested that risk assessment should
be a final check on the most protective
remedy practicable.
Commenters argued that use of a risk
range does not adequately protect
health and environment. One proposed
that cleanup should always be to
background levels as a first choice,
because anything less leaves
contamination whose cumulative and
chronic effects are unknown. Another
commenter disagreed with use of a risk
range and site-specific risk assessment
as a basis for remedy selection, saying
that it violates the statute's mandate to
use such stringent standards as MCLGs
and water quality criteria, which would
assure protection of health and
environment. A commenter pointed out
that there is no statutory authority for
use of a risk range when ARARs exist.
Finally, several commenters suggested
that the assumptions and methods of
risk assessment are as important, or
even more important, than the risk range
used. They pointed out the need for
standardized risk assessment methods
and exposure assumptions, and gave
suggestions for improved ways of
handling uncertainties.
EPA recognizes the merits of many of
the comments made on the risk range
issue and appreciates the significance of
the boundaries of the risk range for
determining the extent of protectiveness
and the cost of cleanups. Based on the
comments received, EPA has decided to
revise the boundaries of the acceptable
risk range for Superfund cleanups to
10~4 to 10~s but to allow for cleanups
more stringent than 10~* when
warranted by exceptional
circumstances. The following discussion
explains the basis for using a risk range,
the reasons for revising the range, and
how this revised risk range is to be used
when setting remediation goals for a
specific medium—soil, ground water,
surface water, or air—and responds to
other comments summarized above on
this risk range issue.8
The primary goals of Superfund
cleanups are to protect human health
and the environment and to comply with
ARARs. When ARARs are not
available, Superfund develops a
reasonable maximum exposure scenario
that describes the current and potential
risk posed by the site in order to
determine what is necessary to achieve
protection against such risks to human
health (see preamble section above on
baseline risk assessment for more
discussion of reasonable maximum
exposure scenario). Based on this
scenario, Superfund selects remedies
that reduce the threat from carcinogenic
contaminants at a site such that the
excess risk from any medium to an
individual exposed over a lifetime
generally falls within a range from 10~4
to 10"6. EPA's preference, all things
being equal, is to select remedies that
are at the more protective end of the risk
range. Therefore, when developing its
preliminary remediation goals, EPA uses
10~6 as a point of departure (see next
preamble section on point of departure).
EPA believes that use of a risk range
is consistent with the mandates in
CERCLA and disagrees with comments
that Superfund should not use a risk
range. CERCLA does not require the
complete elimination of risk or of all
known or anticipated adverse effects,
i.e., remedies under CERCLA are not
required to entirely eliminate potential
exposure to carcinogens. CERCLA
section 121 does direct, among other
requirements, that remedies protect
human health and the environment, be
permanent to the maximum extent
practicable and be cost-effective.
Remedies at Superfund sites comply
with these statutory mandates when the
amount of exposure is reduced so that
the risk posed by contaminants is very
small, i.e., at an acceptable level. EPA's
risk range of 10"4 to 10~s represents
EPA's opinion on what are generally
acceptable levels.
• Cleanup levels at * lite are determined for a
particular medium. Such cleanup leveli encompaia
the acceptable ri«k leveli for contaminant* in that
medium.
-------
Federal Register / Vol. 55, No. 46 / Thursday. March 8, 1990 / Rules and Regulations
8717
In response to comments received,
and to be consistent with the accepted
de minimis level used by other EPA
programs, e.g., the drinking water
program, the lower boundary of the risk
range has been changed from 10~7 to
10"6.» This change also reflects the fact,
noted by commenters, that current
available analytical and detection
techniques cannot effectively verify for
many contaminants that concentration
levels corresponding to risk levels below
10" • have actually been attained after
remediation.
In the Superfund program,
remediation decisions must be made at
hundreds of diverse sites across the
country. Therefore, as a practical
matter, the remediation goal for a
medium typically will be established by
means of a two-step approach. First,
EPA will use an individual lifetime
excess cancer risk of 10" 6 as a point of
departure for establishing remediation
goals for the risks from contaminants at
specific sites. While the 10"6 starting
point expresses EPA's preference for
setting cleanup levels at the more
protective end of the risk range, it is not
a presumption that the final Superfund
cleanup will attain that risk level.
The second step involves
consideration of a variety of site-specific
or remedy-specific factors. Such factors
will enter into the determination of
where within the risk range of 10"' to
10~* the cleanup standard for a given
contaminant will be established.
Preliminary remediation goals for
carcinogens are set at a 10"s excess
cancer risk as a point of departure, but
may be revised to a different risk level
within the acceptable risk range based
on the consideration of appropriate
factors including, but not limited to:
exposure factors, uncertainty factors,
and technical factors. Included under
exposure factors are: the cumulative
effect of multiple contaminants, the
potential for human exposure from other
pathways at the site, population
sensitivities, potential impacts on
environmental receptors, and cross-
media impacts of alternatives. Factors
related to uncertainty may include: the
reliability of alternatives, the weight of
scientific evidence concerning
exposures and individual and
cumulative health effects, and the
reliability of exposure data. Technical
factors may include: detection/
quantification limits for contaminants,
• Office of Drinking Water. National Primary wd
Secondary Drinking Water Regulations. Proposed
Rule. S4 FR 22064 (May 22.1989) In general, other
federal agencies do not reduce individual lifetime
ritk levels below 10"'. "Cancer risk management,"
Environmental Science and Technology. Vol. 21. No.
S (1987).
technical limitations to remediation, the
ability to monitor and control movement
of contaminants, and background levels
of contaminants. The final selection of
the appropriate risk level is made when
the remedy is selected based on the
balancing of criteria (see preamble
discussion below on remedy selection).
Some commenters recommended
establishing a single point, e.g., 10"s, as
the basis for cleanup at all sites. EPA
does not agree with this
recommendation because EPA believes
that other risk levels may be protective
when the 10""risk level will not be
attained at a site due to the factors
described above. Moreover, establishing
10"' as the single cleanup level, i.e., the
only level considered protective, would
be incongruous with CERCLA's
requirement to comply with ARARs.
Many ARARs, which Congress
specifically intended be used as cleanup
standards at Superfund sites, are set at
risk levels less stringent than 10"*.
Ground water that is not currently a
drinking water source but is potentially
a drinking water source in the future
would be protected to levels appropriate
to its use as a drinking water source.
Ground water that is not an actual or
potential source of drinking water may
not require remediation to a 10"* to 10"s
level (except when necessary to address
environmental concerns or allow for
other beneficial uses; see preamble
discussions below on EPA's ground-
water policy and oh use of MCLGs for
ground-water cleanups].
EPA's approach on setting
remediation goals for soils is based on
risk levels and is intended to protect
currently exposed individuals as well as
those who potentially may be exposed
in the future. A reasonable maximum
exposure scenario (described in the
preamble section above on "baseline
risk assessment") is developed to
estimate future potential uses of the site
in order to provide a basis for the
development of protective exposure
levels. For example, soil that is not
currently in residential use but may
potentially have future residential uses
would be protected to levels appropriate
to residential uses. However,
contaminated soil at an industrial site
might be cleaned up to a less stringent
standard, but still within the 10~4 to 10~*
risk range, than soil at a residential site,
as long as there is reasonable certainty
that the site would remain for industrial
use only (institutional controls may be
necessary to ensure that the site is not
used for residential purposes). In the
unusual circumstances where the
baseline risk assessment indicates that
there is little or no chance of any direct
human exposure, for example,
contaminated riverbeds in certain
circumstances, remediation of the
sediments to human health-based levels
may not be necessary (although cleanup
to address environmental concerns may
be required).
"Potential" is a term used in a variety
of contexts in § 300.430. When
"potential" is used to describe risk,
exposure, exposure pathways or threats,
it means a reasonable chance of
occurrence within the context of the
reasonable maximum exposure scenario
developed for that particular site (see
preamble discussion above on "baseline
risk assessment").
At some sites, it is not certain that a
risk level of 10"* will actually be
attained, even when treatment
technology designed to achieve 10~*is
selected, due to the presence of certain
site-specific exposure factors. Such
factors may indicate the need to
establish a risk goal that is more
protective than the overall goal of 10~*.
These site-specific exposure factors
include but are not limited to: the
cumulative effect of multiple
contaminants; the potential for human
exposure from other pathways at the
site; population sensitivities; potential
impacts on environmental receptors;
and cross-media impacts. In addition,
even if not specified as a goal, a cleanup
more stringent than 10"*may be
achieved in some cases due to the
nature of the treatment technology used.
Remedial technologies exist that, in the
process of meeting remediation goals
within the range of 10"Mo 10"*risk, can
achieve risk reduction for particular
contaminants below 10"*.
In summary, EPA's approach allows a
pragmatic and flexible evaluation of
potential remedies at a site while still
protecting human health and the
environment. This approach emphasizes
the use of 10"* as the point of departure
while allowing site- or remedy-specific
factors, including potential future uses,
to enter into the evaluation of what is
appropriate at a given site. As risks
increase above 10"*, they become less
desirable, and the risk to individuals
generally should not exceed 10" *.
In response to other comments
received on the risk range issues, EPA
does not agree that cleanup should
always be to background levels. In some
cases, background levels are not
necessarily protective of human health,
such as in urban or industrial areas; in
other cases, cleaning up to background
levels may not be necessary to achieve
protection of human health because the
background level for a particular
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
contaminant may be close to zero, as in
pristine areas.
Other commenters asserted that EPA
must use statutorily-specified
requirements, such as MCLGs or water
quality criteria (WQC), instead of a risk
range when setting cleanup levels. In
response, EPA believes that a risk range
is necessary to assist in determining
protectiveness in the absence of
potential ARARs. Further, in cases of
mixtures of chemicals where attaining
chemical-specific ARARs for each
contaminant may still result in a
cumulative risk in excess of 10"4 due to
additivity of the risk of the
contaminants, use of a risk range would
be necessary to set a protective
remediation level for the overall
medium. Finally, some commenters
stressed the importance of assumptions
and methods used in conducting risk
assessments to the establishment of
cleanup goals. EPA agrees. EPA
discusses assumptions and methods to
be used when conducting risk
assessments in greater detail in the
preamble sections above on remedial
investigation and baseline risk
assessment.
Final rule: EPA has revised
§ 300.430(e)(2)(i)(A)(2) to state that: "For
known or suspected carcinogens,
acceptable exposure levels are generally
concentration levels that represent an
excess upper bound lifetime cancer risk
to an individual of between 10~4 and
10"6 using information on the
relationship between dose and
response."
Name: Section 300.430(e)(2). Use of
point of departure.
Proposed rule: Section
300.430(e)(2}(i)(A)(2) stated that the 10"s
risk level shall be used as the point of
departure for determining remediation
goals for alternatives when ARARs are
not available or are not sufficiently
protective.
Response to comments: Essentially
none of the commenters supported the
point of departure exactly as proposed,
that is, where ARARs are lacking or are
not sufficiently protective,
determination of cleanup levels would
start at 10~€ and move within the risk
range depending on certain enumerated
factors.
Several commenters favored use of
10"' as the cleanup level. Some of these
commenters did not actually endorse the
concept of a point of departure in that
they thought the overall risk of a remedy
should not exceed 10" * in any case.
Others essentially supported a sticky
point from which departures in the
direction of increased risk would only
be justified on grounds such as
infeasibility.
A number of commenters preferred
the use of the full risk range rather than
a single value for the cleanup level. In
certain cases it was not clear whether
commenters understood EPA's intention
in having a point of departure. One
commenter said that a point of
departure does not help in developing
cleanup goals. Other commenters argued
that a point of departure undermines the
risk range by establishing a single value
for all sites, whereas use of a risk range
accounts for variation among sites and
for uncertainties in risk assessment.
Another commenter supported use of the
entire range rather than focusing on 10"*
in order to foster cost-effectiveness in
the program, while several others
similarly stated that a risk range, rather
than a target level, recognizes such
relevant factors as toxicity, exposure
potential, and cost-benefit tradeoffs.
Several commenters proposed use of a
different point of departure, and even
one which could vary depending on the
site circumstances. If a point of
departure is chosen, one commenter
suggested that 10~s is the appropriate
value, being within the suggested risk
range of 10"* to 10"s. Another
commenter, on the other hand, said the
point of departure should be 10" *: this
level is considered acceptably
protective; it is already based on very
conservative assumptions, so that the
true risk is lower; and anything lower
would be a bias toward treatment.
In opposing the proposed point of
departure, one commenter suggested
that there should be different targets for
various population sizes, and that a
higher value such as 10~4 is adequate for
smaller populations. Others echoed this
comment, saying that population size
should be a factor for moving in the risk
range, and that for small populations
10"4 suffices. One commenter pointed
out that other federal agencies have
considered 10"4 as de minimis for small
populations. A commenter stated that
EPA has in the past considered 10"6 as
insignificant when aggregate population
risk is very low. The commenter did not
suggest a value but said that EPA should
re-examine the issue of not considering
population size in setting cleanup levels.
Finally, one commenter suggested that
risk levels could be set depending on the
conservatism of the assumptions used
and other relevant factors such as the
form in which the chemical is present in
the environment.
EPA believes it is necessary to
explain how it intends the point of
departure to be used. Where the
aggregate risk of contaminants based on
existing ARARs exceeds 10"4 or where
remediation goals are not determined by
ARARs, EPA uses 10"* as a point of
departure for establishing preliminary
remediation goals. This means that a
cumulative risk level of 10"6 is used as
the starting point (or initial
"protectiveness" goal) for determining
the most appropriate risk level that
alternatives should be designed to
attain. The use of NT* expresses EPA's
preference for remedial actions that
result in risks at the more protective end
of the risk range, but this does not
reflect a presumption that the final
remedial action should attain such a risk
level. Factors related to exposure,
uncertainty and technical limitations
may justify modification of initial
cleanup levels that are based on the 10"*
risk level. The ultimate decision on what
level of protection will be appropriate
depends on the selected remedy, which
is based on the criteria described in
§ 300.430(e)(9)(iii).
EPA believes, however, that it is both
useful and necessary to have a starting
point in those cases where the
remediation goal is not determined by
ARARs. Although adjustments may be
necessary in determining the actual
remediation goal for a site, it is
important to have an initial value to
which adjustments can be made,
particularly since the risk range covers
two orders of magnitude. By using 10~*
as the point of departure, EPA intends
that there be a preference for setting
remediation goals at the more protective
end of the range, other things being
equal. Contrary to assertions of some
commenters, EPA does not believe that
this preference will be so strong as to
preclude appropriate site-specific
factors. Also, EPA does not agree that
cost should be considered when setting
the preliminary remediation goal
because reliable cost information is not
available at this step of the process.
Cost is ultimately one of the criteria
used in selecting a remedy.
EPA would like to address those
commenters who suggest that the point
of departure should depend on
population size. At this time EPA
believes that the point of departure
should be consistent across all sites.
The point of departure represents a level
from which analysis should begin,
regardless of the circumstances.
Preliminary and final remediation goals.
i.e., target risk levels, however, may
vary from the point of departure
depending upon site-specific
circumstances (see discussion above on
risk range). The ultimate role of
population size in determining response
priorities or remedies is currently under
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations ^719
review by the Risk Management
Council.
Final rule: EPA is revising proposed
$ 300.430(e)(2)(i)(A)(2) on the point of
departure as follows: "The 10" * risk
level shall be used as the point of
departure for determining remediation
goals for alternatives when ARARs are
not available or are not sufficiently
protective because of the presence of
multiple contaminants at a site or
multiple pathways of exposure; * * *"
Name: Section 300.430(e)(9). Detailed
analysis of alternatives.
Proposed rule: The purpose of the
detailed analysis is to objectively assess
the alternatives with respect to nine
evaluation criteria that encompass
statutory requirements and include
other gauges of the overall feasibility
and acceptability of remedial
alternatives (53 FR 51428). This analysis
is comprised of an individual
assessment of the alternatives against
each criterion and a comparative
analysis designed to determine the
relative performance of the alternatives
and identify major trade-offs (i.e.,
relative advantages and disadvantages)
among them. The decision-maker uses
information assembled and evaluated
during the detailed analysis in selecting
a remedial action.
Response to comments: The preamble
discussion of the detailed analysis
section of the RI/FS process in the
proposal categorized the nine criteria
into three groups: threshold, primary
balancing and modifying criteria (53 FR
51428). Although in general, commenters
supported this tiered system, many were
confused about the significance of the
categories in the detailed analysis and
remedy selection stages. After a careful
study of the comments, EPA has
concluded that the process EPA
proposed would be expressed more
clearly if the nine criteria were not
divided into three categories during the
detailed analysis phase, when all nine
criteria need to be objectively assessed,
but when the balancing decision is
made. EPA believes that the
characterization of the criteria into the
three categories is important, and should
be used during remedy selection, as
discussed in that section of today's
preamble.
Some commenters asked EPA to
clarify the purpose and content of the
detailed analysis. The following is a
general description of the detailed
analysis. The detailed analysis of
alternatives consists of the analysis and
presentation of the relevant information
needed to allow decision-makers to
select a site remedy. It is not the
decision-making process itself. During
the detailed analysis, each alternative is
assessed against each of the nine
criteria. The analysis lays out the
performance of each alternative in terms
of compliance with ARARs, long-term
effectiveness and permanence,
reduction of toxicity, mobility or volume
through treatment, short-term
effectiveness, implementability, and
cost. The assessment of overall
protection draws on the assessments
conducted under other evaluation
criteria, especially long-term
effectiveness and permanence, short-
term effectiveness and compliance with
ARARs. State and community
acceptance also are assessed, although
definitive assessments of these factors
cannot be completed until the public
comment period on the draft RJ/FS and
proposed plan is completed. Further
guidance on this process is available in
the "EPA Guidance for Conducting
Remedial Investigations and Feasibility
Studies Under CERCLA," OSWER
Directive No. 9355.3-01, October 1988
(Interim Final). This guidance will be
updated following promulgation of the
NCR
After making the individual criterion
assessments for each alternative, the
alternatives are compared to each other.
This comparative analysis identifies the
key tradeoffs (relative advantages and
disadvantages) among the alternatives
with respect to the nine criteria. The
purpose of this comparative analysis is
to provide decision.-makers with
sufficient information to balance the
trade-offs associated with the
alternatives, select an appropriate
remedy for the site and demonstrate
satisfaction of the CERCLA remedy
selection requirements.
In general, commenters supported the
use of the nine criteria in performing the
detailed analysis. The supporters wrote
that the criteria provide the flexibility
needed to analyze diverse site
conditions, by allowing the
consideration of a wide range of
relevant factors.
Some commenters wrote that nine
criteria are too many to address in the
detailed analysis. These commenters
argued that considering so many criteria
makes the evaluation too complicated.
While supporting the nine criteria, one
commenter suggested adding as an
additional criterion, the extent to which
the alternative utilizes permanent
solutions and alternative treatment
technologies or resource recovery
technologies to the maximum extent
practicable. In addition, several
commenters addressed the relation of
the nine criteria used in alternatives
evaluation and remedy selection to the
statutory mandates for remedy selection
described in section 121 of CERCLA.
These commenters remarked that the
use of the nine criteria was a significant
departure from the remedy selection
criteria in the 1985 NCP, which focused
on protectiveness and cost. They also
believed that increasing the number of
criteria to be considered during remedy
selection reduces flexibility and
complicates an already complicated
process. They suggested that the criteria
should be based directly on the
statutory language. Specifically, these
commenters proposed the following four
criteria: protection of human health and
the environment; compliance/waiver of
ARARs; preference for permanent
solutions and treatment as a principal
element; and cost-effectiveness.
Although agreeing with EPA's
establishment of protection of human
health and the environment and
compliance with ARARs as the first two
evaluation criteria, one commenter
suggested significant modifications to
the other criteria. This commenter
suggested merging the five evaluation
criteria of long-term effectiveness and
permanence, reduction of toxicity,
mobility or volume through treatment,
short-term effectiveness,
implementability, and cost, into three
broad criteria: effectiveness,
implementability and cost. This
commenter noted that state and
community acceptance, although
relevant considerations in remedy
selection, add nothing to the feasibility
study process. The commenter believes
this system would provide the most
appropriate starting point for creating a
structured method for selecting a site
remedy.
EPA developed the nine evaluation
criteria to give effect to the numerous
statutory mandates of section 121 and in
particular, the remedial action
assessment factors of section 121(b)(l)
(AHG). EPA does not believe analysis
of alternatives under the four criteria
approach suggested by the commenter
would provide an adequate analytical
framework. EPA also is not adding as a
criterion the statutory mandate to utilize
permanent solutions and alternative
treatment technologies or resource
recovery technologies to the maximum
extent practicable. The analysis
performed pursuant to the nine criteria
concludes with selection of a remedy
that meets the statutory mandates. This
analysis requires consideration of a
number of factors before making these
conclusions. In particular, the mandate
for cost-effective remedies clearly
requires consideration of both costs and
the effectiveness of alternatives.
Similarly, EPA believes that a range of
-------
8720
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
factors, including long-term
effectiveness and permanence,
reduction of toxicity, mobility, or volume
through treatment, an- short-term
effectiveness, must be considered to
provide the basis for concluding that a
particular alternative represents the
practicable extent to which permanent
solutions and treatment can be used at a
given site. However, EPA has included
two specific statutory requirements in
the criteria (protection of human health
and the environment and compliance
with ARARs) in light of the paramount -
importance of these mandates. EPA
notes that it does have an expectation
that alternatives that will treat principal
threats at sites will be considered,
consistent with the statutory preference
for treatment as a principal element.
The proposed rule stated that the
detailed analysis is to be conducted on
the limited number of alternatives that
represent viable hazardous waste
management approaches {53 FR 51506).
One commenter recommended changing
the wording to conduct a detailed
analysis on those alternatives
representing "viable approaches to
remedial action," rather than "viable
hazardous waste management
approaches." EPA agrees with this
recommendation and has substituted the
commenter's wording for the phrase in
the final rule. As a further clarification,
today's rule consistently uses the term
"remedial alternative" in all pertinent
places.
A discussion of each of the nine
criteria follows.
1. Protection of human health and the
environment. This evaluation criterion
assesses whether each alternative
provides adequate protection of human
health and the environment. The overall
assessment of protection draws on the
assessments conducted under other
evaluation criteria, especially long-term
effectiveness and permanence, short-
term effectiveness, and compliance with
ARARs. Only those alternatives
determined to be protective in the
detailed analysis proceed to the
selection of remedy step.
One commenter noted that
effectiveness, implementability, extent
of reduction in toxicity, mobility, or
volume, and compliance with ARARs
criteria should be considered before
evaluating the protectiveness of a
remedial alternative. EPA agrees that
the protectiveness determination in the
detailed analysis draws upon the
assessments conducted under other
evaluation criteria, especially long-term
effectiveness and permanence, short-
term effectiveness, and compliance with
ARARs. However, EPA has maintained
protection of human health and the
environment as the first criterion due to
the clear statutory mandate to select
remedies that are protective of human
health and the environment.
One commenter stressed that the
impact of the remedial action on natural
resources must be assessed under this
criterion. The commenter noted that the
use of ground-water pump and treat
systems as part of a remedial action
may deplete valuable water resources.
particularly in the western states. EPA
agrees that the impact of the remedial
action must be assessed and calls for
this analysis under the short-term
effectiveness criterion. As noted above,
the evaluations of short-term
effectiveness and other criteria are used
in assessing the protectiveness of each
alternative.
2. Compliance with ARARs. This
evaluation criterion is used to determine
whether each alternative will meet all of
its federal and state ARARs (as defined
in CERCLA section 121). The detailed
analysis should summarize which
requirements are applicable or relevant
and appropriate to an alternative and
describe how the alternative meets
these requirements. When an ARAR is
not met, the detailed analysis should
discuss whether one of the six waivers
allowed under CERCLA may be
appropriate (see also preamble section
below on ARARs).
One commenter noted that the
responsibility for evaluating the
applicability of ARARs waivers to a
proposed remedial action lies with the
lead agency and not with the potentially
responsible party (PRP). This commenter
also recommended that the lead agency
evaluate potential grounds for ARARs
waivers as early as possible in the
feasibility study, due to the important
role ARARs play in the ultimate remedy
selection decision. EPA supports early
evaluation of ARARs by the lead agency
or the PRP, as appropriate, depending on
site-specific enforcement agreements.
Either the PRP or a state may perform
the ARAR analysis and recommend the
applicability of ARAR waivers, but
ultimately EPA determines compliance
with ARARs (and the applicability of
ARARs waivers) when it selects the
remedial action, as described in the
proposed plan and finalized in the
record of decision (ROD).
3. Long-term effectiveness and
permanence. The analysis under this
criterion focuses on any residual risk
remaining at the site after the
completion of the remedial action. This
analysis includes consideration of the
degree of threat posed by the hazardous
substances remaining at the site and the
adequacy and reliability of any controls
(e.g., engineering or institutional
controls) used to manage the hazardous
substances remaining at the site. The
criterion is founded on CERCLA's
mandates to select remedies that are
protective of human health and the
environment and that utilize permanent
solutions and alternative treatment
technologies or resource recovery
technologies to the maximum extent
practicable and that maintain protection
over time.
Seeking clarification of EPA's
interpretation of "permanence," one
commenter recommended that EPA
define a permanent remedy as a remedy
for a particular site that results in
protection of human health and the
environment without the need for
significant levels of long-term operation
and maintenance. Another suggested
that a permanent solution is simply a
remedy that is not an interim solution,
i.e., it is a final solution. EPA evaluates
permanence to the maximum extent
practicable as the degree of long-term
effectiveness and permanence afforded
by a remedy. This is judged along a
continuum, with remedies offering
greater or lesser degrees of long-term
effectiveness and permanence.
As a general observation, several
commenters noted that many of the
criteria (e.g., long-term effectiveness,
short-term effectiveness, and reduction
of toxicity, mobility or volume through
treatment) overlap. EPA acknowledges
that these factors are related. They
derive from the mandates of section 121
and are designed to elicit analysis on
distinct, but related factors to perform a
comprehensive analysis of each
alternative. Today's rule lists factors to
be considered in performing the detailed
analysis under each of the criteria. For
further guidance, see the "Guidance for
Conducting Remedial Investigations and
Feasibility Studies Under CERCLA,"
OSWER Directive No. 9355.3-01.
October 1988 (Interim Final).
Long-term effectiveness includes a
consideration of the residual risk
remaining at a site after the remedial
action is complete. This assessment of
risk is conducted assuming conservative
but realistic exposures. This
consideration will assess how much of
that risk is associated with treatment
residuals and how much is associated
with untreated waste. The potential for
this risk may be measured by numerical
standards such as cancer risk levels or
the volume or concentration of
contaminants in waste, media, or
treatment residuals remaining on site.
4. Reduction of toxicity. mobility or
volume through treatment. This
evaluation criterion addresses the
statutory preference for selecting
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations ^721
remedial actions that employ treatment
technologies that permanently and
significantly reduce the toxicity,
mobility or volume of the hazardous
substances as a principal element.
Specifically, this analysis examines the
magnitude, significance and
irreversibility of such reductions
achieved by alternatives employing
treatment.
One commenter pointed out that the
preamble to the proposed rule lacked
precision in stating that CERCLA
section 121 mandates a preference for
remedies that permanently reduce the
volume, toxicity, or mobility of the
hazardous substances. Rather, this
commenter wrote, section 121
establishes a preference for remedies in
which treatment permanently and
significantly reduces the volume,
toxicity or mobility of the hazardous
substances. The commenter noted the
omission of the word "treatment" could
be important because the ambiguous
statement in the proposal would allow
the conclusion that containment
qualifies as a preferred remedy. In fact,
some commenters suggested the rule
contain language stating that physical
control, or containment on site, would
qualify as actions achieving a reduction
of mobility for purposes of this criterion.
EPA must stress that the reductions
analyzed pursuant to the reduction of
toxicity, mobility or volume criterion
must be attained through treatment. This
criterion is designed to evaluate
alternatives in light of CERCLA's
preference for remedial actions in which
treatment which permanently and
significantly reduces the volume,
toxicity or mobility of the hazardous
substances is a principal element. This
criterion has been amended in today's
rule to specify analysis of the extent that
toxicity. mobility or volume is reduced
through treatment.
On a related point, enother
commenter noted that the statute
establishes a preference for reduction of
toxicity, mobility or (rather than "and")
volume through treatment. EPA agrees
with this comment and today's preamble
and rule consistently refer to the
reduction of toxicity, mobility or volume
through treatment.
Another commenter expressed
concern that the phrase "permanently
and significantly reduces the volume,
toxicity or mobility of the hazardous
substances" will be interpreted as a
presumption in favor of incineration.
This commenter believes such a
presumption would dramatically
increase remediation costs without
providing a corresponding increase in
protectiveness. Some commenters
argued that the effectiveness of different
treatment technologies should not be
judged solely on the destructive
efficiency of a particular technique, such
as incineration, because treatment
technologies that do not destroy
hazardous constituents but rather
immobilize them chemically also are
capable of protecting human health and
the environment and satisfying the
statutory preference.
In response, the purpose of treatment
in the Superfund program is to
substantially reduce the toxicity,
mobility, or volume of hazardous
substances in order to decrease the
inherent hazards posed by a site.
Consistent with the statutory preference
set out in CERCLA section 121(b)(l).
EPA expects to treat the principal
threats (e.g., contaminants of concern)
posed by a site, wherever practicable
(see § 300.430(a)(l)(iii)(A)). However,
EPA agrees with the commenters that
more than one treatment technology is
capable of accomplishing these goals. In
order to clarify this point, EPA is
establishing, as a guideline, that
treatment as part of CERCLA remedies
should generally achieve reductions of
90 to 99 percent in the concentration or
mobility of individual contaminants of
concern, although there will be
situations where reductions outside the
90 to 99 percent range that achieve
health-based or other site-specific
remediation goals (corresponding to
greater or lesser concentration
reductions) will be appropriate.
All treatment should involve well-
designed and well-operated systems. In
order to achieve 90 percent or greater
reductions, the systems should be
designed to achieve reductions beyond
the target level under optimal
conditions. If treatment results in the
transfer of hazardous constituents from
one medium to another (e.g., stripping of
volatile organic compounds from
sludges to air), treatment of the newly
affected medium will often be required.
The reductions suggested by this
guideline for effective treatment may be
achieved by the application of a single
technology or a combination of
technologies (i.e., treatment train). In
addition, EPA believes this 90 to 99
percent range allows the use of an array
of technologies, including innovative
technologies. As noted above, EPA
agrees that a wide variety of treatment
technologies are capable of achieving
these reductions. For example, effective
treatment may potentially include
bioremediation, solidification, and a
variety of thermal destruction
technologies, as well as many others.
EPA supports the development and use
of a diverse array of treatment
technologies to address hazardous
substances at Superfund sites. Examples
of efforts to support such development
and use include the Superfund
Innovative Technology Evaluation
program and the increased
encouragement of treatability testing of
innovative technologies during the RI/
FS to improve promotion and selection
of such technologies. To provide further
emphasis on the use of innovative
technologies, today's rule incorporates
an expectation that examination of such
technologies shall be carried through to
the detailed analysis if those
technologies have the potential and
viability to perform better than or equal
to proven technologies in terms of
performance or implementability, short-
term effectiveness or cost
(§ 300.430(a)(l)(iii)(E)).
This guideline for effective treatment
is based on an evaluation by the
Superfund program of the effectiveness
of treatment technologies on hazardous
constituents in sludges, soil, and debris,
the most common waste addressed by
Superfund source control remedial
actions ("Summary of Treatment
Technology Effectiveness for
Contaminated Soil," EPA Final Report
(March 1989)). This guideline is also
consistent with guidance that
establishes alternate treatment levels to
be achieved when complying with the
RCRA land disposal restrictions for soil
and debris through a treatability
variance ("Obtaining a Soil and Debris
Treatability Variance for Remedial
Actions," Superfund LDR Guide #6A,
OSWER Directive 9347.3-06FS). Both
documents are available in the docket in
support of this final rule.
One commenter recommended that
recycling should be considered in
assessing the extent that each
alternative reduces the toxicity, mobility
or volume of the hazardous substance.s.
Although the rule as proposed would
have allowed recycling activities to
occur as part of the remedial action,
§ 300.430(e)(9}(iii)(D) of today's rule is
changed to specifically consider the
reduction of toxicity, mobility or volume
of the hazardous substances through
recycling.
5. Short-term effectiveness. This
evaluation criterion addresses the
effects of the alternative during the
construction and implementation phase
until remedial response objectives are
met. Under this criterion alternatives are
evaluated with respect to their effects
on human health and the environment
during implementation of the remedial
action.
One commenter requested additional
guidance on the evaluation of short-term
effectiveness. Today's rule lists the
-------
8722 Federal Register / Vol. 55, No. 46 / Thursday, March 8. 1990 / Rules and Regulations
factors to consider under this criterion.
The assessment of short-term
effectiveness includes an evaluation of
how alternatives will protect the
community during remedial actions.
This aspect of short-term effectiveness
addresses any risk that results from
implementation of the proposed
remedial action, such as dust from
excavation, transportation of hazardous
materials, or air quality impacts from a
stripping tower operation that may
affect human health. This assessment
will consider who may be exposed
during the remedial action, what risks
those populations may face, how those
risks can be mitigated, and what risks
cannot be readily controlled. Workers
are included in the population that may
be affected by short-term exposures.
This criterion also addresses potential
adverse impacts on the environment
that may result from the construction
and implementation of an alternative
and evaluates the reliability of the
available mitigation measures in
preventing or reducing potential impacts
on either of these potential receptors.
More detailed guidance on evaluating
the short-term impacts of a remedial
alternative is included in the "EPA
Guidance for Conducting Remedial
Investigations and Feasibility Studies
Under CERCLA" (OSWER Directive
9355.3-01, October 1988). This guidance
lists relevant factors to analyze as part
of this criterion and the bases for
evaluation during the detailed analysis.
This commenter also expressed
concern that EPA's definition of short-
term effectiveness does not sufficiently
highlight the use of institutional controls
during remedy implementation.
According to this commenter, because
these techniques can substantially
reduce risk, EPA should require
consideration of these controls when
assessing the short-term effectiveness of
an alternative. Another commenter
expanded on this concept, stating that
both institutional controls and site
stabilization can be used to mitigate the
risks posed by the remedial action. This
commenter argued that use of
institutional controls and site
stabilization activities would allow the
use of innovative technologies, such as
bioremediation, that could be effective
in the long-term. EPA agrees that short-
term effects often can be mitigated
through the use of institutional controls
along with other active measures that
may include interim remedies
(implemented as operable units) or
removal actions. Program management
principles and expectations placed in
today's rule reflect these concepts.
One commenter noted that many of
the same considerations that apply to
the evaluation of long-term effectiveness
also apply to evaluating the short-term
effectiveness of certain remedial
techniques. In analyzing short- and long-
term effectiveness, EPA may study
impacts or risks posed to many of the
same receptors. However, the focus of
the analyses under the two criteria
differ. The analysis under the long-term
effectiveness and permanence criterion
addresses the risk remaining after
response objectives have been met. The
primary focus of this evaluation is the
extent and effectiveness of the controls
that may be required to manage the risk
posed by treatment residuals and/or
untreated wastes. The analysis under
the short-term effectiveness criterion
focuses on the effects on human health
and the environment during
implementation of the remedial action.
6. Implementability. The
implementability criterion addresses the
technical and administrative feasibility
of implementing an alternative and the
availability of various services and
materials required during its
implementation.
Some commenters linked
implementability with effectiveness.
These commenters argued that the two
criteria must be analyzed together
because an alternative that is not
implementable also could not be
effective. One commenter asserted that
implementability is site-specific and
therefore should include the variables of
each site's topography, location, and
available space, capacity and
technologies.
Although EPA agrees that
implementability and effectiveness are
related, EPA has maintained them as
separate analytical criteria. This allows
distinct analysis of the various
subfactors of each criterion (such as the
magnitude of residual risk remaining at
the conclusion of the remedial action for
long-term effectiveness and
permanence, and the technical
feasibility associated with the remedial
action for implementability), which
generally do not relate to both. EPA
agrees that implementability is
determined on a site-specific basis. The
factors listed by this commenter would
be addressed under the technical
feasibility component of the
implementability criterion. Today's rule
lists the factors to be considered under
the criteria and the RI/FS guidance
provides an additional discussion.
7. Cost. Many comments reflected
some confusion over the role of cost as
an analytical criterion under the
detailed analysis and the required
•statutory finding that the remedy
selected is cost-effective. One
commenter focused on the need to
distinguish the cost-effectiveness finding
from the cost evaluation criterion. EPA
agrees that this distinction is an
important one. Although cost is used as
a crude screen in the development and
screening of alternatives, cost is
primarily addressed in the detailed
analysis and remedy selection phases of
the remedial process. The detailed
analysis evaluates and compares the
cost of the respective alternatives, but
draws no conclusion as to the cost-
effectiveness of the alternatives. Cost-
effectiveness is determined in the
remedy selection phase, considering the
long-term effectiveness and permanence
afforded by the alternative, the extent to
which the alternative reduces the
toxicity, mobility, or volume of the
hazardous substances through
treatment, the short-term effectiveness
of the alternative, and the alternative's
cost (see preamble section below on
detailed discussion of the role of cost in
decisiorunaking).
Several commenters addressed cost
as an evaluation criterion. Some noted
the importance of an adequate cost
evaluation in the detailed analysis
phase. EPA agrees that the evaluation of
costs associated with an alternative
must be based on as complete and
accurate cost data as possible. Several
commenters stated that the discount
rate used to determine the net present
value creates a bias against protective
remedies. Some argued that use of the 10
percent discount rate established by
Office of Management and Budget
(OMB) Circular A-94 is inappropriately
high. They believe use of this discount
rate artificially reduces estimates of the
cost of operation and maintenance
(O&M) and encourages the selection of
containment-based, low capital, high
O&M cost remedies, while discouraging
high capital, low O&M cost remedies.
They commented that the discount rate
of 10 percent is unrealistic because it
does not take into account long-term
market conditions and the likelihood
that the beneficial value of a clean site
will increase as populations increase
and natural resources become more
scarce. The discount rate may also be
outdated because inflation rates have
changed since the rate was developed.
The commenters stated that five percent
is a more realistic discount rate. EPA
recognizes the importance of using an
appropriate discount rate when deriving
estimates of project costs. EPA does not
intend to create a bias against high
capital, low O&M cost remedies. EPA
will follow OMB Circular A-94 and
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8723
notes that OMB is currently reviewing
its provisions. If and when Circular A-
94 is revised, EPA will address this
matter in program guidance to ensure
consistency with Circular A-94.
EPA received the suggestion that the
cost criterion should include the
assessment of savings due to recycling
of salvageable or recyclable material.
EPA has not changed the rule to
specifically consider revenue realized
due to recycling. However, EPA believes
that to the extent response costs are
directly offset by the receipt of revenue
from recycling, such funds should be
included when calculating the costs of
the response action.
One commenter argued that costs of
future remedial actions should be
included in the cost estimate, when
there is a reasonable expectation that a
major component of a remedy may
require replacement. EPA agrees and
believes that such factors may be taken
into account under today's rule.
Analysis under the "long-term
effectiveness and permanence" criterion
should be used to determine which
alternatives may result in future costs. A
detailed statistical analysis is not
required to identify probable future
costs. Rather, qualitative engineering
judgment should be used to assess
whether replacement costs should be
considered. EPA specifically has
provided in the RI/FS guidance that
such costs are to be addressed, and if
appropriate, included in the cost
estimate, when it may be reasonably
assumed that a major component of the
alternative will fail and require
replacement to prevent significant
exposure to contaminants. EPA notes
that when developing cost information,
both direct and indirect capital and
operation and maintenance costs should
be developed.
One commenter recommended
considering as part of the analysis under
this criterion, costs related to losses of
business activities, residential
development, and local, state, and
federal tax revenues that may result
from restricting future land use and
ground water use that may be necessary
with remedial actions that leave
hazardous substances on site. The
conunenter also said that EPA should
also take into account the reductions in
the values of the neighboring properties
that may occur when an inactive waste
site is not restored to unrestricted use.
In response, EPA does not believe it is
appropriate under CERCLA to include
these costs within this evaluation
criterion. Section 111 of CERCLA
governs the use of the Fund and
according to that section, these costs are
not included as costs that may be
incurred by the Fund. In addition,
section 107 provides the right to recover
response costs, natural resources
damages and costs of certain health
assessments or health effects studies.
The costs listed by the commenter also
are not included specifically within the
costs recoverable under section 107.
Further, such indirect effects such as the
reduction in property values are the
result of the hazardous substance
activity, not the response action.
One commenter asked EPA to
acknowledge that federal procurement
requirements apply to EPA contractors
conducting Superfund remedial actions.
EPA agrees with the commenter that
EPA contractors must comply with
federal procurement requirements and
that this can reduce the cost of Fund-
financed remedial actions (e.g., contract
award to responsive, responsible low
bidder). However, EPA does not believe
it necessary or appropriate to
acknowledge this in the rule. Similarly,
EPA received comments that it should
employ cost-cutting measures when
implementing remedial actions. EPA
agrees and does so whenever possible.
EPA received the comment that the
detailed analysis does not afford
sufficient weight to cost because, among
the five criteria labeled as balancing
criteria in the proposal, four address
effectiveness and implementability and
only one addresses cost. EPA stresses
that the number of related criteria in the
detailed analysis does not relate to the
importance of each criterion. All nine
criteria are important to address the
requirements of CERCLA.
8. State acceptance. This criterion
reflects the statutory requirement to
provide for substantial and meaningful
state involvement. State comments may
be addressed during the FS, as
appropriate, although formal state
comments generally are not received
until after die state has reviewed the
draft RI/FS and the draft proposed plan
prior to the public comment period.
EPA received several comments
stressing the importance of this
criterion. EPA agrees this consideration
is important and has developed today's
rule consistent with CERCLA's
emphasis on state involvement in the
remedial process (see also preamble
section below on subpart F).
9. Community acceptance. This
criterion refers to the community's
comments on the remedial alternatives
under consideration. For this evaluation,
community is broadly defined to include
all interested parties, including PRPs.
These comments are taken into account
throughout the RI/FS process, although
formal community comments are made
during the public comment period for the
proposed plan and the RI/FS.
EPA received one comment suggesting
that this criterion only consider the
acceptance of a party if that party
resides in a community near the site.
This commenter argued that comments
from parties affected only by
interference of normal commerce or
residing in areas unaffected by the
potential health threat should not be
afforded the same weight as those
parties residing in the nearby
community. As a matter of policy, EPA
places the highest priority on comments
received from the community to which
the site potentially or actually poses a
human health or environmental risk.
However, today's rule establishes no
formal priority for evaluating community
comments. Instead, community concerns
will be assessed on a site-specific basis,
allowing flexibility to meet the demands
of varying site conditions and diverse
community needs.
Final rule: 1. Today's regulation
revises proposed § 300.430(e)(9) based
on comments received on the detailed
analysis of alternatives using the nine
criteria, the remedy selection, and the
hierarchy of criteria used in the
analysis. The revisions made in
response to comments primarily attempt
to clarify the process. The revisions
reflect the fact that the detailed analysis
should be an objective assessment of
the alternatives with respect to the nine
criteria and as a consequence, the
threshold, balancing, and modifying
labels have been removed from the
discussion of the nine criteria during the
detailed analysis and placed in the
selection of remedy section, where the
criteria are actually used as threshold,
balancing, and modifying criteria.
2. The final rule requires specification
of which reduction—toxicity, mobility or
volume—will be achieved by an
alternative. Section
300.430(e)(9)(iii)(D)(7) is revised to
indicate that recycling is an acceptable
means of accomplishing reduction.
Name: Section 300.430(f). Remedy
selection.
Existing rule: The 1985 NCP calls for
the selection of remedies that are cost-
effective and that effectively mitigate
and minimize threats to public health
and welfare and the environment. 40
CFR 300.68(i](l). In selecting the
appropriate extent of remedy, the lead
agency considers cost, technology,
reliability, administrative and other
concerns, and their relevant effects on
public health and welfare and the
environment. Federal ARARs are used
-------
8724
Federal Register / Vol. 55, No. 46 / Thursday. March 8, 1990 / Rules and Regulations
as the basis for determining cleanup
levels.
CERCLA, as amended in 1986,
elevated the use of ARARs, including
state ARARs, as cleanup standards to a
statutory requirement and provided
other requirements for remedy selection.
Congress retained the requirement for
protective and cost-effective remedies
and prescribed remedies that utilize
permanent solutions and alternative
treatment technologies or resource
recovery technologies to the maximum
extent practicable.
Proposed rule: The preamble to the
proposed rule explained that selection
of a remedial action is a two step
process (53 FR 51429). First, the lead
agency, in conjunction with the support
agency, reviews the results of the Rl/FS
to identify a preferred alternative. The
lead agency presents this preferred
alternative, along with the supporting
information and analysis, to the public
in a proposed plan for review and
comment. Second, the lead agency
reviews the public comments, consults
with the support agency to evaluate
whether the preferred plan still is the
most appropriate remedial action for the
site or site problem, and makes the final
remedy selection decision (see also
§ 300.515(e) for description of lead and
support agency roles during the
selection of remedy process).
The identification of the preferred
alternative and the final remedy
selection decision are based on an
evaluation of the major trade-offs among
the alternatives in terms of the nine
evaluation criteria. Remedial
alternatives must be protective of
human health and the environment and
comply with ARARs (or justify a
waiver) in order to be eligible for
selection. These are the two threshold
criteria from among the nine criteria.
The lead agency balances the trade-
offs, identified in the detailed analysis,
among alternatives with respect to long-
term effectiveness and permanence,
reduction of toxicity, mobility or volume
through treatment, short-term
effectiveness, implementability, and
cost. This initial balancing determines
preliminary conclusions as to the
maximum extent to which permanent
solutions and treatment can be
practicably utilized in a cost-effective
manner. The preamble to the proposed
rule referred to the criteria used for
balancing the trade-offs as primary
balancing criteria.
The alternative that is protective of
human health and the environment, is
ARAR-compliant and affords the best
combination of attributes is identified as
the preferred alternative in the proposed
plan.
State and community acceptance are
factored into a final balancing which
determines the remedy and the extent of
permanent solutions and treatment
practicable for the site. State concerns
will be factored into the proposed plan
to the extent they are known. However,
formal state comments may not be
received until after the state has
reviewed the draft RI/FS and the draft
proposed plan prior to the public
comment period. Similarly, to the extent
possible, community concerns will be
factored into the feasibility study and
proposed plan. However, community
acceptance cannot be assessed
definitively until the formal public
comment period is held.
Response to comments: 1. Structure
and consistency. Although generally
supporting the use of the nine criteria in
remedy selection, several commenters
expressed concern over whether the
balancing process ensures selection of
remedies that comply with the statutory
mandates of CERCLA. In response, EPA
believes that the remedy selection
process promulgated today effectively
harmonizes the somewhat competing
requirements of CERCLA, and ensures
that remedial actions will fulfill each
statutory mandate.
Specifically, some commenters wrote
that the absence from the rule of the
categories of threshold, balancing, and
modifying criteria described in the
preamble to the proposal made the
function of the criteria in remedy
selection unclear and that the proposed
rule did not provide sufficient practical
guidance on remedy selection.
In response, EPA has modified the
proposed rule to provide further
clarification and structure in the remedy
selection process. First, EPA has added
expectations into the rule, in order to
provide better guidance on the types of
remedies that EPA expects to consider
in detailed analysis, and has set out a
program goal and management
principles (§ 300.430(aJ). Second, EPA
has added structure to the process by
specifying the functional categories of
the nine criteria—threshold, primary
balancing or modifying—in the remedy
selection portion of the rule. Third, the
rule emphasizes the importance of two
of the nine criteria—long-term
effectiveness and permanence, and
reduction of toxicity, mobility or volume
through treatment—in the balancing
process.
Some commenters opposed the
adoption of the proposed remedy
selection framework. These commenters
criticized the framework as being vague
and providing little guidance on the
weight to be afforded individual
selection criteria or the order in which
the criteria should be considered. The
commenters criticized the process as
likely to vary from site to site, resulting
in the selection of different remedies for
sites with similar characteristics.
According to these commenters, the
inconsistency could impair EPA's ability
to negotiate settlements with PRPs. One
commenter warned that the fluid nature
of the proposed decision-making process
will make it more difficult for states,
other federal agencies, and PRPs to
replicate. The commenter fears that EPA
will waste time second-guessing remedy
selections and justifying how a preferred
remedy was identified by a lead agency
or a PRP. These commenters requested
clear and complete directions on how to
select remedies.
In response, EPA believes that the
basic remedy selection system as
revised presents a sound, workable
method for selecting protective remedies
while balancing the technical, economic,
and practical realities associated with
each site and with the program as a
whole to arrive at appropriate solutions.
EPA believes that flexibility is needed in
the remedy selection process precisely
because each Superfund site presents a
different set of circumstances. A rigid
set of criteria for remedy selection,
while perhaps more easily reproduced,
would not be well suited to such diverse
site circumstances, and would be less
responsive to Congress' mandate to
consider a large number of factors,
including protectiveness, permanence
and treatment, cost, effectiveness, and
state and public participation.
At the same time, EPA agrees that
clarification is needed concerning the
role and relative importance of the
different criteria in remedy selection,
and has responded by categorizing the
criteria by function (i.e., threshold,
balancing, and modifying), and by
identifying balancing criteria that should
be emphasized. These revisions add
structure to the process and indicate the
relative importance of the different
criteria. The inclusion of the goal,
management principles, and
expectations in the rule should also
increase national consistency by
focusing detailed analysis and remedy
selection on fewer, more appropriate
alternatives. EPA believes that these
changes will make it easier for the
public to understand and anticipate EPA
decisions.
In addition, proposed
§ 300.430(f](3)(iii) (§ 300.430(f)(l)(ii) (D)
and (E) in the final rule) is revised to
clarify the relation of the evaluation
criteria to the statutory mandates of
section 121 of CERCLA. Specifically, the
regulation now states that cost-
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8, 1990 / Rules and Regulations
8725
effectiveness is to be determined by
comparing the costs and overall
effectiveness of alternatives to
determine whether the costs are
proportional to the effectiveness
achieved. Overall effectiveness for the
purpose of this determination includes
long-term effectiveness and
permanence; reduction of toxicity,
mobility, or volume through treatment;
and short-term effectiveness. The
determination of which alternative
utilizes permanent solutions and
alternative treatment technologies to the
maximum extent practicable takes into
account long-term effectiveness and
permanence; reduction of toxicity,
mobility, or volume through treatment;
short-term effectiveness;
implementability; and cost, as well as
state and community acceptance.
Another revision made to enhance the
clarity of the regulation is the direction
at § 300.430(f)(l)(ii)(E) that special
emphasis is to be afforded alternatives
that offer advantages in terms of long-
term effectiveness and permanence, and
reduction of toxicity, mobility or volume
through treatment, in performing the
balancing by which the remedy is
selected. These two criteria are given
primary consideration in the rule and
preamble when analyzing the relative
merits of the alternatives. These criteria
will be the most important, decisive
factors in remedy selection when the
alternatives perform similarly with
respect to the other balancing criteria.
When the alternatives provide similar
long-term effectiveness and permanence
and reduction of toxicity, mobility or
volume, the other balancing criteria rise
to distinguish the alternatives and play
a more significant role in selecting the
remedy. For example, if two alternatives
offer similar degrees of long-term
effectiveness and permanence and
reduction of toxicity, mobility or volume
through treatment, but one alternative
would require more time to complete
and would have greater short-term
impacts on human health and the
environment, the decision-maker would
focus on the distinctions between the
alternatives under the short-term
effectiveness criterion.
One commenter stated that remedies
should be evaluated on a national basis,
rather than a site-specific basis to, at a
minimum, determine the relative
importance of each of the nine criteria.
According to this commenter, site-
specific remedy selection using
balancing leads to nationally
inconsistent remedies and hides from
public view the remedy selection
process. A different commenter argued
that site-specific factors should
dominate the remedy selection process.
EPA believes that today's
modifications to the proposal clarify the
remedy selection process and help
ensure that consistent remedies are
selected. The remedy selection process
in today's rule, shaped by the program
goal and expectations, promotes
national consistency while allowing
consideration of important site-specific
factors. In addition, EPA is developing
guidance on expected remedies for
specific types of sites (e.g., municipal
landfills) and specific types of waste
(e.g., PCBs) that will assist in
streamlining decision-making and
promoting greater consistency.
One commenter suggested that the
selection process focus on the risk
reduction provided by the alternatives
and the cost-effectiveness of each
alternative. EPA agrees with the
commenter that risk reduction and cost-
effectiveness are major considerations
in selecting remedial actions. The
amount of residual risk remaining after
implementation of the remedy is
analyzed under the long-term
effectiveness and permanence criterion
in the detailed analysis. The trade-offs
associated with this criterion are
balanced with the other criteria when
selecting a remedy. However, today's
rule affords extra significance to the
trade-offs associated with the "long-
term effectiveness and permanence"
and "reduction of toxicity, mobility or
volume through treatment" criteria when
comparing the attributes associated with
the alternatives.
One commenter noted that EPA had
omitted in the proposal a reference to
the statute's bias against off-site land
disposal of untreated waste. EPA notes
the omission and has changed proposed
§ 300.430(f)(3)(iii) (§ 300.430(f)(l)(")(E) in
the final rule) to clarify that an
alternative that relies on the off-site
transport and land disposal of untreated
hazardous substances will be the least
favored alternative where practicable
treatment technologies are available, as
determined by analysis using the nine
criteria. EPA notes that CERCLA does
not express a preference for or bias
against off-site remedies involving
treatment and that the NCP is similarly
neutral.
Many commenters felt that protection
of human health and the environment
was appropriately established as a
threshold criterion. One commenter
requested that protectiveness be clearly
identified as the dominant criterion for
evaluating responses conducted by
PRPs. Another commenter feit that the
proposed NCP did not make it clear that
the protection of human health and the
environment must be met at a minimum
by all remedies.
Section 121 of CERCLA makes clear,
and the legislative history confirms, that
the overarching mandate of the
Superfund program is to protect human
health and the environment from the
current and potential threats posed by
uncontrolled hazardous waste sites.
This mandate applies to all remedial
actions and cannot be waived. This
priority has been reflected in the rule by
including protection as a threshold
criterion that must be satisfied by all
remedies selected under CERCLA
(5 300.430(f)(l)(ii)(A)).
One commenter noted that, in general,
if there will be significant exposure
during implementation of the remedy, a
remedial option that can be
implemented quickly is preferable, in
terms of the short-term protection it
affords, to one that can only be
implemented slowly but provides
greater long-term effectiveness. EPA
responds by cautioning against over-
generalization and attempting to create
too rigid a formula for remedy selection.
EPA agrees that unacceptable short-
term impacts can cause an alternative to
be considered non-protective of human
health and the environment and can
remove that alternative from
consideration as a viable option.
However, in this example, the remedy
that is less effective in the short-term
(i.e., takes longer to implement) also
provides greater long-term effectiveness
than the remedy without unacceptable
adverse short-term impacts. In this
situation, generally EPA would evaluate
the possible measures available to
mitigate the short-term impacts and thus
allow the alternative to be protective
during implementation. This alternative,
in other words, would not immediately
be ruled out, due to its positive
performance under the long-term
effectiveness and permanence criterion.
One commenter cautioned that the
threshold criteria should not be overly
restrictive, i.e., must not include overly
conservative safety factors. EPA
believes it uses a sound, reasonable
approach in judging the overall
protection afforded by a remedial
alternative. (See preamble description of
§ 300.430(e) for a complete discussion of
evaluating risks associated with
potential alternatives.) As for the
requirement to meet ARARs, EPA is
simply following the mandate in the
statute that on-site remedies selected
under CERCLA section 121 must meet
all "applicable" and "relevant and
appropriate" requirements of federal
and state environmental laws, unless a
-------
8726
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
waiver is appropriate under the
conditions set out in CERCLA section
121(d)(4). EPA has discretion to
determine whether any, all, or only a
portion of a requirement is relevant and
appropriate, consistent with the factors
set out in final rule § 300.400(g)(2);
however, once determined to be
relevant and appropriate, all relevant
and appropriate portions of the
requirement must be applied as though
they were applicable (again, unless a
waiver is available).
Some commenters concluded that
since Congress did not list compliance
with ARARs as one of the remedy
selection criteria in section 121(b), this
criterion should not be considered a
threshold criterion. In addition, some
commented that protection of human
health and the environment should
receive more emphasis than compliance
with ARARs. EPA believes that
CERCLA section 121(d)(2)(A)
establishes compliance with ARARs as
a threshold criterion for remedy
selection. That section requires the
selection of a remedial action that "at
least attains such legally applicable or
relevant and appropriate standard,
requirement, criteria, or limitation"
(subject to waivers in CERCLA section
121(d)(4)J. In some situations compliance
with ARARs may not result in protective
remedies because of exposure to
multiple chemicals or through multiple
exposure pathways that have additive
or synergistic effects. In this case a
remedy may need to achieve levels more
stringent than the ARARs to ensure
protection.
One commenter argued that since
different remedies must meet different
ARARs and, because meeting some
ARARs precludes meeting other ARARs,
some site cleanups will not be able to
meet all ARARs. Another commenter
sought clarification on comparing
alternatives when different ARARs are
identified and questioned how EPA
would prioritize alternatives if none
meets all the identified ARARs.
In response, EPA notes that in the
detailed analysis, each alternative is
evaluated individually to determine if
the alternative will be ARAR-compliant.
Each alternative will possess its own set
of ARARs, and frequently ARARs for
one alternative will not be ARAR for
another alternative for the same site
(e.g., an incineration alternative may
have air emissions ARARs not
applicable to a bioremediation
alternative). Alternatives need only
attain requirements that are applicable
or relevant and appropriate for that
alternative, not all ARARs identified for
any alternative at the site. Alternatives
that cannot meet all of their respective
ARARs must justify a waiver under
CERCLA section 121(d)(4) (final rule
§ 300.430(f)(l)(ii)(C)) for each
requirement that will not be met in order
for that alternative to be eligible for
selection as the remedial action.
Alternatives involving ARAR waivers,
of course, must also provide adequate
protection of human health and the
environment in order to be eligible for
selection as the remedy.
2. Role of cost in cost-effectiveness
determination. The appropriate role of
cost in remedy selection has been a
controversial issue. EPA received
questions concerning the weight
afforded each of ths criteria, including
cost, when balancing the trade-offs
among the criteria. Under the proposal
and today's rule, cost is considered in
making two statutory determinations
required for selected remedies: that the
remedy is cost-effective (i.e., the remedy
provides effectiveness proportional to
its cost) and that it utilizes permanent
solutions and treatment to the maximum
extent practicable. The comments that
address the role of cost in the cost-
effectiveness determination are
discussed first.
According to several commenters,
Congress clearly intended that remedies
would be selected based on the
protectiveness afforded by the
alternative and cost would be used only
to select from among protective
alternatives. A different commenter
argued that the cost-effectiveness
mandate must be used to ensure that
remedial actions, which must be
protective of human health and the
environment, ARAR-compliant, and
utilize permanent solutions and
alternative treatment technologies or
resource recovery technologies to the
maximum extent practicable, achieve
these mandates at the lowest possible
cost.
EPA agrees that cost can only be
considered in selecting a remedy from
among protective alternatives. The
remedy selection process requires that
alternatives must be demonstrated to be
protective and ARAR-compliant (or
justify a waiver) in order to be eligible
for consideration in the balancing
process by which the remedy is
selected. This sequence of steps ensures
that the selected remedy will be
protective of human health and the
environment and that protection of
human health and the environment will
not be compromised by other selection
factors, such as cost. Several
commenters supported the proposed
remedy selection process believing it
ensures the selection of a cost-effective
• remedy while at the same lime not
affording an overly dominant role to
cost.
Some commenters argued that cost
should only be used to implement a
selected, protective remedy in the most
cost-efficient manner, i.e., that cost-
effectiveness should only be considered
after the remedy has been selected to
allow implementation in the least costly
manner. The commenters assert that
their interpretation follows from the
statute and the legislative history.
Another commenter asserted that cost-
effectiveness primarily is a check to
prevent unreasonable expenditures and
to ensure remedies are implemented in a
cost-efficient (and not necessarily the
lowest cost) manner.
In response, EPA believes that cost is
a relevant factor for consideration as
part of the selection of the remedy from
among protective, ARAR-compliant
alternatives, and not merely as part of
the implementation phase. EPA believes
this position is consistent with both the
statute and legislative history.
CERCLA, at section 121(a), states that
"the President shall select appropriate
remedial actions * * * which are in
accordance with this section and, to the
extent practicable, the national
contingency plan, and which provide for
cost-effective response." Thus, cost-
effectiveness is established as a
condition for remedy selection, not
merely as a consideration during
remedial design and implementation.
Further in the statute, at section
121(b)(l), Congress again repeats the
requirement that only cost-effective
remedies are to be selected, as
follows:"The President shall select a
remedial action that is protective of
human health and the environment, that
is cost effective, and that utilizes
permanent solutions and alternative
treatment " * * to the maximum
extent practicable." Again, cost-
effectiveness is cited along with
protectiveness as a key factor to
consider in selecting the remedy. EPA
believes that the statutory language
supports the use of concepts of "cost"
and "effectiveness" in this rule's nine
evaluation criteria that provide the basis
for the remedy selection decision, rather
than as factors to be applied after the
remedy has been selected.
EPA believes that this approach is
also in line with the legislative history
underlying the SARA Amendments,
which added section 121 to CERCLA.
The Conference report on SARA
discussed the concept of cost-
effectiveness, and specifically approved
of the approach to cost-effectiveness
taken by EPA in the 1985 NCP:
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8, 1990 / Rules and Regulations
8727
The provision that actions under both
•ections 104 and 106 must be cost-effective is
a recognition of EPA's existing policy as
embodied in the National Contingency Plan.
H.R. Rep. 962, 99th Cong., 2d Bess. 245
(1986) (emphasis added).
Specifically, the 1985 NCP required
that:
in selecting the appropriate extent of remedy
from among the alternatives that will achieve
adequate protection of public health and
welfare and the environment in accordance
with 300.68(i){l), the lead agency will
consider cost, technology, reliability,
administrative and other concerns, and their
relevant effects on public health and welfare
and the environment.
40 CFR 300.68(i)(2) (emphasis added).
Thus, the 1985 NCP provided that cost
should be a factor in the selection of a
remedy, and emphasized that cost may
be used to select "among" those
alternatives that are protective;
significantly, the 1985 rule does not
contemplate a unique protective remedy
in most cases, for which cost would
simply be used to decide on possible
implementation mechanisms.
The preamble to the 1985 NCP goes on
to explain in more detail the role of cost
in that rule:
The approach embodied in today's rule is
to select a cost-effective alternative from a
range of remedies that protects the public
health and welfare and the environment.
First, it is clear that if all the remedies
examined are equally feasible, reliable, and
provide the same level of protection, the lead
agency will select the least expensive
remedy. Second, where all factors are not
equal, the lead agency must evaluate the cost,
level of protection, and reliability of each
alternative. In evaluating the cost of remedial
alternatives, the lead agency must consider
not only immediate capital costs, but also the
costs of operating and maintaining the
remedy for the period required to protect
public health and welfare and the
environment. For example, the lead agency
might select a treatment or destruction
technology with a higher capital cost than
long-term containment because treatment or
destruction might offer a permanent solution
to the problem.
• « • * •
Finally, the lead agency would not always
select the most protective option, regardless
of cost. The lead agency would instead
consider costs, technology, reliability,
administrative and other concerns, and their
effects on public health and welfare and the
environment. This allows selection of an
alternative that is the most appropriate for
the specific site in question.
50 FR at 47921 (Nov. 20,1985) (emphasis
added).
Today's rule continues the approach
embodied in the 1985 NCP, although
some of the terminology has changed.
First, the approach promulgated today
requires that alternatives are
determined to be adequately protective
and ARAR-compliant before cost-
effectiveness is considered in remedy
selection (see § 300.430(f)(l)(ii)(D)).
Second, today's rule recognizes that a
range of alternatives can be protective
and ARAR-compliant, and that cost is a
legitimate factor for choosing among
such alternatives.
The 1985 NCP based the cost-
effectiveness determination on
technology, reliability, administrative,
and other concerns and their effects on
public health and welfare and the
environment. Today's rule considers
basically the same factors but has recast
them to reflect CERCLA's preferences
and mandates. For example, technology
is considered under the criterion of
reduction of toxicity, mobility, or volume
through treatment for treatment
performance; long-term effectiveness
and permanence for residuals, and
short-term effectiveness for adverse
impacts. Reliability of treatment
technology is considered under
reduction of toxicity, mobility, or volume
through treatment. Reliability of long-
term management controls used to
address treatment residuals is
considered under long-term
effectiveness and permanence. Effects of
alternatives on protection of human
health and the environment is
considered under short- and long-term
effectiveness. Administrative and other
concerns are replaced by the
implementability criterion, which is not
considered in determining cost-
effectiveness but is used in determining
the extent to which permanent solutions
and treatment can be practicably
utilized, along with state and community
acceptance.
In addition to endorsing the 1985 NCP
approach to cost-effectiveness, the
SARA Conference Report went on to
discuss the Conferees' view of the role
of cost-effectiveness in the remedy
selection process:
The term "cost-effective" means that in
determining the appropriate level of cleanup
the President first determines the appropriate
level of environmental and health protection
to be achieved and then selects a cost-
efficient means of achieving that goal. Only
after the President determines, by the
selection of applicable or relevant and
appropriate requirements [ARARs], that
adequate protection of human health and the
environment will be achieved, is it
appropriate to consider cost-effectiveness.
H.R. Rep. 962,99th Cong., 2d Sess. 245
(1986).
As the Conference Report
contemplated, where there is an
applicable or relevant and appropriate
requirement (ARAR) that defines the
"appropriate level of environmental and
health protection to be achieved," e.g., a
Maximum Contaminant Level (MCL) for
ground water, EPA will select an
appropriate and cost-efficient
technology for achieving that level
under today's rule.10 If two or more
alternatives are determined to be
comparably effective in achieving that
MCL standard and level of protection,
the least costly of the alternatives would
be selected as the cost-effective solution
under today's rule.
However, the situation is often more
complicated. Indeed, in most cases,
there will not be one level or standard—
e.g., one contaminant-specific ARAR—
that defines protectiveness, but rather,
there will be a range of protective,
ARAR-compliant alternatives eligible
for selection that vary in their costs and
effectiveness.
There are two principal reasons for
this. First, ARARs are not available in
all situations. Contaminant-specific
ARARs have been promulgated for a
small percentage of contaminants,11 and
even if contaminant-specific ARARs
were available for some relevant
substances, they generally do not define
protective levels for contaminated soils
nor do they always define protective
levels for mixtures of chemicals (typical
Superfund site situations). Thus, EPA
must evaluate additional information to
determine what remedies would protect
human health and the environment; the
answer, as reflected by this final rule's
definition of an acceptable risk "range,"
is that there are generally a range of
remedies that may be protective.
The second major reason that there
will not be one level or standard that
defines protectiveness in most cases, is
that the NCP requires the development
of alternatives that represent distinct
strategies for cleaning up the site or site
problem. These alternatives will achieve
protection of human health and the
environment through different methods
(e.g., treatment, containment) or
combinations of methods and will often
involve different ARARs, particularly
action-specific requirements.11 (As
"See final rule | 300.430(0(lPHD). which
provide! that only after an alternative is found to t
"protective and ARAR-compliant" U the alternate
evaluated bated on coit or other balancing factors
11 For example, although there are • large numb-
of hazardous substances that may contaminate th«
ground water, final MCL leveli have only been
promulgated for approximately 31 chemicals
(auuming "radionuclidei" are grouped, and
considered to be one chemical). See 40 CFR 141.11
141.16; 40 CFR 141.61-141.62: and 54 FR Z7S67 (Juni
29,1988).
" Location-specific ARAR* and action-specific
ARARi are diicuited in more detail in the preaml
to the proposed NCP. S3 FR at 51437 (Dec. 21.1988
-------
8728
Federal Register / Vol. 55, No. 46 / Thursday. March 8. 1990 / Rules and Regulations
noted above, e.g., incineration may have
a potential ARAR relating to air
emissions that a chemical treatment
option would not.) Different methods of
protection typically will vary in their
costs and effectiveness (e.g., treatment
residuals, short-term impacts]. Where
costs and effectiveness vary among
protective and ARAR-compliant
alternatives, it is necessary to evaluate
the relationship of costs to effectiveness
within and across alternatives to
identify which options afford overall
effectiveness proportional to their costs.
EPA believes that the intent of the
SARA Conference Report was to make
clear that cost-effectiveness cannot be
used to justify selection of a remedy that
does not protect human health and the
environment. By following the approach
of the 1985 NCP, and by considering
cost-effectiveness only after EPA has
identified protective remedial options,
EPA believes its approach is consistent
with the objectives and intent of
Congress.
Some commenters urged that EPA
highlight cost in the remedy selection
process, elevating cost-effectiveness to a
threshold criterion, in recognition of the
mandate for cost-effective remedies.
Several commenters suggested several
reasons why cost-effectiveness should
be considered a threshold criterion. One
commenter stated that the legislative
history indicates that cost-effectiveness
should be a threshold. Another
commenter indicated that cost is
considered throughout the FS and is the
only truly objective criterion of the nine
and that, in practice, EPA has made its
decisions with cost as a primary
consideration. Another commenter
sought explicit confirmation in the rule
that regardless of how the five factors
balance out, only cost-effective
remedies may be selected. Other
commenters wanted clarification
concerning the weight afforded each of
the criteria, including cost, when
balancing the trade-offs among the
criteria.
In response to the comments urging an
increased role of cost or requesting
clarification on the role of cost, EPA
notes that it has established cost as one
of the evaluation criteria in the detailed
analysis and that the final rule explains
more clearly how cost is to be
considered in determining cost-
effectiveness and the practicable extent
to which permanent solutions and
treatment can be used.
EPA agrees that cost-effectiveness is
like the two threshold criteria in that it
is a statutory requirement with which an
alternative must comply in order to be
eligible for selection as the remedy. The
Statutory finding of cost-effectiveness is
not "balanced," with any other statutory
requirement, but rather certain
evaluation criteria are balanced to reach
the conclusion that the remedy is cost-
effective. More than one alternative can
be cost-effective.
EPA has decided, however, not to
establish cost-effectiveness as a
threshold finding largely due to the
sequence in which the statutory findings
are made. When EPA begins the
selection step, information is readily
available from the detailed analysis to
determine immediately which
alternatives are protective and ARAR-
compliant and therefore eligible for
selection. The focus of the remedy
selection process from this point
forward is on drawing conclusions
about the distinguishing differences
among eligible options to determine
which alternative represents the
maximum extent to which permanent
solutions and treatment can be utilized
in a cost-effective manner. The findings
of cost-effectiveness and the extent to
which permanent solutions and
treatment are practicable both derive
from the balancing of these differences
or tradeoffs.
Commenters asked EPA to clarify the
measure of effectiveness used in the
determination that costs are
proportional to an alternative's overall
effectiveness. Overall effectiveness, as
used in the cost-effectiveness
determination, is a composite of long-
term effectiveness and permanence;
reduction in toxicity, mobility or volume
of the hazardous substances through
•treatment; and short-term effectiveness.
The relationship between overall
effectiveness and cost is examined
across all the alternatives to identify
which options afford effectiveness
proportional to their cost.
Because some commenters were
confused by the description of cost-
effectiveness in proposed
§ 300.430(f)(4)(ii)(D) ("the remedy
provides overall effectiveness
proportional to its costs"), EPA believes
that it is necessary to better express its
intent. This description of cost-
effectiveness is in final
§| 300.430(f)(l)(ii)(D) and
300.430(f)(5)(ii)(DJ.
EPA uses the term "proportional"
because it intends that in determining
whether a remedy is cost-effective, the
decision-maker should both compare the
cost to effectiveness of each alternative
individually and compare the cost and
effectiveness of alternatives in relation
to one another (see S3 FR 51427-28). In
analyzing an individual alternative, the
decision-maker should compare, using
best professional judgment, the relative
magnitude of cost to effectiveness of
•that alternative. In comparing
alternatives to one another, the
decision-maker should examine
incremental cost differences in relation
to incremental differences in
effectiveness. Thus, for example, if the
difference in effectiveness is small but
the difference in cost is very large, a
proportional relationship between the
alternatives does not exist. The more
expensive remedy may not be cost-
effective. EPA does not intend, however.
that a strict mathematical
proportionality be applied because
generally there is no known or given
cost-effective alternative to be used as a
baseline. EPA believes, however, that it
is useful for the decision-maker to
analyze among alternatives, looking at
incremental differences.
EPA believes that using the term
"proportional" describes well this type
of multidimensional analysis. Using
such an analysis should enable the
decision-maker to determine whether an
alternative represents a reasonable
value for the money; more than one
alternative may be considered cost-
effective.
In response to the comment that cost
should be used to distinguish between
comparably protective remedies, EPA
notes that many alternatives will be
protective but will achieve that
protection through different methods or
combinations of methods, such that the
commenter's characterization of
alternatives as "comparably protective"
may not be appropriate (though all
alternatives may be protective).
However, alternatives may emerge from
the detailed analysis as comparably
"effective," in terms of the three
effectiveness criteria of long-term
effectiveness and permanence,
reduction of toxicity, mobility or volume
through treatment and short-term
effectiveness; in that event, the least
costly of the comparably effective
alternatives would be identified as cost-
effective while the others would not.
However, because the remedy selection
process usually involves consideration
of a range of distinct alternatives that
generally vary in their effectiveness and
cost, most often a comparative analysis
of the relationship between .the overall
effectiveness of the alternatives and
their costs will be required to determine
which alternatives are cost-effective
(i.e.. provide overall effectiveness
proportional to their costs).
One commenter suggested adding the
following to proposed § 300.430(f)(3):
"Remedies selected shall be cost-
effective relative to other alternatives.
In evaluating the cost-effectiveness of
proposed alternatives, EPA shall take
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8729
into account the total short- and long-
term cost of such actions, including the
costs of operation and maintenance for
the entire period during which such
activities will be required. A cost-
effective remedy is one with costs
proportional to the remedy's overall
effectiveness."
EPA has not incorporated the entire
suggested statement into the rule. EPA
believes the commenter's statement is
too narrow, because several types of
costs are factored into the evaluation of
the cost of the remedy during the
detailed analysis. These costs include.
but are not limited to, the direct and
indirect costs identified by the
commenter. Also, the language does not
reflect that overall effectiveness
involves a composite of effectiveness
factors, i.e., long-term effectiveness and
permanence, toxicity, mobility or
volume reduction through treatment,
and short-term effectiveness. EPA does
agree with the commenter that a cost-
effective remedy is one with costs
proportional to the remedy's overall
effectiveness. A more detailed
discussion of the types of costs that may
be considered is included in EPA's RJ/
FS guidance (cited above).
One commenter argued that because
the requirement that all remedies be
cost-effective is unconditional, should
EPA select a remedy requiring treatment
techniques that are more stringent than
health based ARARs or the 1(T4 to 10"6
acceptable risk range, EPA must
demonstrate the ability of the
techniques to provide meaningful and
necessary risk reductions at a
reasonable cost. Although EPA
generally will not select a remedial
action specifically to achieve a risk level
below l(T6(e.g., 10"7), technology used
in implementing the selected remedy
could actually achieve additional risk
reduction (e.g., 1CT7). EPA agrees with
the commenter that as with any remedy
selected under CERCLA section 121, a
remedy selected with a risk level below
10"*must be cost-effective (and meet
the other requirements of section 121).
Another commenter suggested that
EPA add language to the rule stating
that EPA shall select a remedy with
associated risk lower than 10"4 only
when necessary for protection of human
health or the environment or compliance
with ARARs, or if EPA can demonstrate
that such risk reductions can be
achieved at a reasonable cost. In
response, EPA explains that once levels
are established for carcinogens that will
satisfy ARARs, EPA will consider
cumulative or synergistic effects from
multiple contaminants or multiple
exposures. For carcinogens without
ARARs, 10~*is a point of departure from
which technical, uncertainty and
exposure factors are used to establish
preliminary remediation goals, which
include a target risk level. Final
remediation goals are determined in the
remedy selection decision by balancing
the major trade-offs among the
alternatives based on the evaluation
criteria (as described in
§ 300.430(f)(l)(ii)), which will establish
the specific level within the acceptable
risk range the remedy will be designed
to achieve. (See preamble discussion
above on risk range.)
One commenter requested
clarification that the cost-effectiveness
requirement applies equally to Fund-
financed and PRP-financed remedies.
However, several other commenters
asserted that the cost-effectiveness
requirement pertains only to remedies
that EPA intends to seek from PRPs or to
fund itself. When the PRPs are
proposing a remedy, according to these
commenters, cost-effectiveness is a
matter only for the PRPs, not the
government.
EPA provides the following
clarification. The statutory requirement
that each remedy selected be cost-
effective applies to all Fund-financed as
well as all PRP-financed remedies under
CERCLA.
3. Cost and practicability. Some
commenters requested clarification of
the proper analysis of trade-offs
between cost-effectiveness and the
practical limitations of treatment
technologies on one hand, and the
mandate to utilize treatment to the
maximum extent practicable on the
other. In addition, one commenter wrote
that the proposed process blurs the two
concepts of cost-effectiveness and
practicability. Some commenters noted
that cost must be considered in
determining what is "practicable." EPA
responds that cost is considered in
making both findings as are certain
other criteria. Cost is considered in
determining cost-effectiveness to decide
which options offer a reasonable value
for the money in light of the results they
achieve. Cost differences must also be
considered in the context of all other
differences between alternatives to
reach a conclusion as to which
alternative, all things considered,
provides the most appropriate solutions
for the site or site problem. It is this
judgment that determines the maximum
extent to which permanent solutions
and treatment are practicable for the
site or site problem being addressed.
Criteria other than cost that are also
used to make both findings are long-
term effectiveness and permanence,
reduction in toxicity, mobility or volume
through treatment, and short-term
effectiveness. However, the
determination of "practicability" also
takes into account the implementability
of the remedy and state and community
acceptance.
In response to the comment that EPA
may not select a non-permanent remedy
if a permanent remedy is practicable,
EPA notes that the final balancing by
which the remedy is selected decides,
from among protective, cost-effective
alternatives, the extent to which
permanent solutions and treatment are
practicable for the site. EPA must select
an alternative providing the maximum
permanence and treatment practicable.
EPA uses the balancing and modifying
criteria to determine what is practicable.
A commenter indicated that PRPs must
be required to clean up the released
hazardous substances to the maximum
extent practicable. EPA agrees; PRP
cleanups are subject to the same
standards as Fund-financed remedial
actions.
Several commenters addressed
specifically the statutory mandate to
utilize permanent solutions and
alternative treatment technologies or
resource recovery technologies to the
maximum extent practicable. One
commenter suggested establishing this
statutory mandate as'a threshold
criterion. Similarly, another commenter
argued that since the concepts of
protection of human health and the
environment, cost-effectiveness, and the
preference for permanent solutions and
alternative treatment technologies or
resource recovery technologies are
specifically grouped together by
Congress, these criteria should be
balanced with each other in the same
context in the remedy selection process
of the NCP. The commenter urged
elimination of the distinctions between
the threshold and primary balancing
criteria.
EPA believes that it has established
an appropriate process for addressing
all these provisions, first by identifying
protective, ARAR-compliant
alternatives eligible for selection, and
then by balancing tradeoffs among
alternatives with respect to the other
pertinent criteria to identify a cost-
effective alternative that utilizes
permanent solutions and alternative
treatment technologies or resource
recovery technologies to the maximum
extent practicable. EPA does not believe
that it is possible or appropriate to
address the mandate to utilize
permanent solutions and treatment to
the maximum extent practicable as an
evaluation criterion because this
-------
8730
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
mandate represents a conclusion
reached about a remedy on the basis of
several evaluation factors.
Some commenters stressed that the
statute does not require permanent
solutions or treatment in all cases.
Another commenter argued different
criteria should be applied if EPA
determines that a site is "beyond
technical and economic remediation."
EPA agrees that under CERCLA. the
requirement to select permanent
solutions and treatment technologies is
qualified by practicability. This concept
ensures selection of remedies
appropriate to the site problems.
Some commenters noted that cost
must be considered in determining what
is "practicable." As discussed above,
the cost of the remedy is among the
factors considered in determining the
use of permanent solutions and
treatment to the maximum extent
practicable.
4. State and community acceptance.
One comment believed state and
community acceptance were
appropriately categorized as modifying
criteria. This commenter conciuded that
in the statute Congress did not afford
the same weight to state and community
acceptance as the other criteria. Another
commenter felt that the proposal
afforded too much weight to state and
community acceptance and that these
interests would exercise undue
influence over the selection of a remedy.
EPA disagrees with the latter comment.
CERCLA calls for meaningful state and
community involvement in selecting the
remedial action. See, e.g., sections 117
and 121(f) of CERCLA. Today's rule
provides a framework for such
involvement. EPA notes, however, that
information on state and community
acceptance generally will not be
complete until comments are received
on the proposed plan. Once all
comments are evaluated, state and
community acceptance may prompt
modifications to the preferred remedy
and are thus designated modifying
criteria. In no case will EPA sacrifice
protection to achieve state and
community acceptance.
Several commenters suggested that
consideration of state acceptance as a
modifying criterion did not adequately
take into account state concerns in
remedy selection. One commenter
stated that the proposed approach
would likely result in state input not
being factored in until the ROD was
being prepared, which would be too late
for addressing serious concerns. For this
reason, one commenter suggested
making state acceptance a primary
balancing criterion.
EPA believes that the process as
proposed adequately addresses state
interests. Often, a state agency may be
the lead agency for RI/FS activities at a
site, directly developing, in consultation
with EPA, the alternatives that will be
analyzed in detail, and the option that
will be put forward as the preferred
alternative in the proposed plan. When
EPA is the lead agency, states
participate as the support agency and
are involved in these same decisions.
The rule provides for consideration of
state concerns throughout the remedial
process, noting that such concerns
should be reflected, to the extent
possible, in the proposed plan. However,
the rule acknowledges that the
assessment of state concerns may not be
completed until after the formal public
comment period has been held and,
therefore, highlights consideration of
this criterion in the final remedy
selection decision.
EPA received comments urging
express recognition that Indian tribes
have the opportunity, along with states,
to review draft RI/FS reports prior to
public review. These commenters
requested that EPA afford substantial
deference to Indian tribe and state
comments on the RI/FS workplan, the
ROD and regarding ARARs. In response,
EPA notes that § 300.515{b) allows
Indian tribes to be treated the same as
states in the remedial process if certain
conditions are met, thus ensuring the
Indian tribes have the opportunity to
review and comment on significant
documents such as RI/FSs and RODs.
EPA recognizes the substantial role that
states and Indian tribes play in the
remedial process and does not believe
further emphasis is necessary in the
remedy selection portion of the rule.
Several commenters argued that
community acceptance is a significant
criterion and should have more
influence in alternatives evaluation and
remedy selection. These commenters
urged that this criterion be made a
primary balancing criterion. The
commenters felt that community, as well
as state concerns, should be considered
throughout the remedial process,
highlighting in their comments the desire
to participate in the development of RI/
FS workplans and to participate in the
detailed analysis. Similar to the
concerns expressed on the role of state
acceptance, some commenters
cautioned that if community acceptance
is addressed only at the ROD stage, lack
of acceptance could result in serious
conflict between EPA, the state and the
community.
EPA agrees that community
acceptance is extremely important and
has established a Superfund community
relations program to facilitate
communication between the community
and the lead and support agencies. To
the degree that community acceptance
of the alternatives is known at the time
of the proposed plan, it will be taken
into account in the development of the
plan. Additionally, the public may
access the administrative record
throughout the remedial process and
may voice concerns to the lead agency
regarding the contents of the documents
contained in the record at any time.
Due to the fact that information with
respect to this factor generally will not
be complete until after the official public
comment period, EPA has not included
community acceptance as a primary
balancing criterion. A correct
assessment of community acceptance
necessarily is based on hearing from the
community as a whole. Accordingly,
EPA believes it would be premature to
address this factor conclusively prior to
the public comment period, during
which EPA may hear from citizens who
have not been vocal earlier during the
RI/FS process. Although community
acceptance is not addressed as early as
the primary balancing factors, which
serve as the principal basis for
determining the preferred alternative, it
nonetheless is an important factor in
EPA's final remedy selection decision. If
community acceptance is known earlier,
it can be a factor in determining the
preferred alternative.
In reference to the five-year review,
two commenters generally endorsed
EPA's interpretation of the statutory
provision in the preamble that calls for a
five year review whenever the selected
remedy will leave wastes on site above
levels that allow for unlimited use and
unrestricted exposure. One commenler
agreed that the five year review should
focus on whether the remedy is still
protective and should consist of an
examination of monitoring data rather
than new field investigations. Another
commenter said that the five year
review should also examine new
technologies that may have been
developed since the remedy was
implemented, to the extent the remedy is
not protective. Generally, EPA agrees
with these comments, and guidance is
under development to define the five-
year review. EPA agrees that the review
should generally focus on monitoring
data, where available, to evaluate
whether the remedy continues to
provide adequate protection of human
health and the environment. New
technologies will be considered where
the existing remedy is not protective,
but the five-year review is not intended
-------
Federal Register / Vol. 55. No. 46 / Thursday, March 8, 1990 / Rules and Regulations 8731
as an opportunity to consider an
alternative to a protective remedy that
was initially selected.
As provided in CERCLA section
120(e)(4), for federal facility sites subject
to interagency agreements (LAGs) under
CERCLA section 120, the selection of a
remedial action shall be "by the head of
the relevant department, agency or
instrumentality and the Administrator
[of EPA] or, if unable to reach agreement
on selection of a remedial action,
selection by the Administrator." This
provision is incorporated in the final
rule at § 300.430(f)(4)(iii). EPA notes that
where there are disagreements, EPA
may invoke the process provided for
under E.0.12580, section 10(a), to
facilitate resolution of issues, or a
dispute resolution process may be
specified in the LAG itself. In any case,
however, the final remedy selection
decision will be reserved for the EPA
Administrator, consistent with CERCLA
sections 120(e)(4) and 120(g).
Final rule: Section 300.430(f). the
selection of remedy section of the final
rule, has been substantially revised from
the proposed rule in response to
comments received. Many of these
changes reflect EPA's attempt to clarify
the role of the nine criteria during the
remedy selection process and how the
selected remedy complies with the
statutory requirements for Superfund
remedies. The promulgated rule also
clarifies the role of the proposed plan
(§| 300.430(f)(l)(ii) and 300.430(0(2)) and
the final remedy selection
(§ 300.430(0(4)), taking into
consideration state and community
acceptance of the proposed plan.
1. The rule promulgated today moves
the discussion of the hierarchy of
criteria in remedy selection from the
detailed analysis of alternatives section
of the proposal rule to the selection of
remedy section in the final rule
(5 300.430(0(l)(i)). The hierarchy
established in today's rule represents an
important change from the hierarchy
described in the preamble to the
proposed rule. This change makes clear
that overall protection of human health
and the environment and compliance
with ARARs (unless grounds for
invoking a waiver is provided) are
threshold criteria that must be satisfied
by an alternative before it can be
selected. Long-term effectiveness and
permanence; reduction of toxicity,
mobility, or volume through treatment;
short-term effectiveness;
implementability; and cost are primary
balancing criteria. However, today's rule
places special emphasis on long-term
effectiveness and permanence, and
reduction of toxicity, mobility, or volume
through treatment, during the remedy
selection (§ 300.430(0(l)(ii)(E)). State
and community acceptance are
modifying criteria that may have
significant input in the final remedy
selection (§ 300.430(f)(4)(i)) and, to the
degree they are available earlier, may
affect the development of alternatives
and the selection of the proposed plan.
Formal consideration of the modifying
criteria may not be available until after
the proposed plan, although informal
consideration may be made earlier.
2. Today's rule makes clear that the
determinations that the remedy is: (1)
Cost-effective and (2) utilizes permanent
solutions and alternate treatment
technologies or resource recovery
technologies to the maximum extent
practicable, are separate findings that
both result from balancing conducted
during the remedy selection process.
The final rule also reflects the statutory
bias against off-site land disposal of
untreated waste during remedy
selection.
Name: Section 300.430(f)(5).
Documenting the decision.
Proposed rule: Proposed
§ 300.430(0(2) and (0(4) (renumbered as
§ 300.430(0(5)} required the publication
of a notice of availability of the
proposed plan and the final remedial
action plan. The proposed plan
describes and solicits comments on the
preferred remedial action alternative
and the other alternatives considered.
Following receipt and consideration of
public comments on the proposed plan,
the remedy is selected and documented
in a ROD. The ROD summarizes the
problems posed by a site, the technical
analysis of alternative ways of
addressing those problems, and the
technical aspects of the selected remedy
that are later refined into design
specifications. The ROD is also a legal
document that, in conjunction with the
supporting administrative record.
demonstrates that the lead and support
agency decision-making has been
carried out in accordance with statutory
and regulatory requirements and that
explains the rationale by which
remedies were selected. Finally, RODs
are important public documents that
summarize key facts discovered,
analyses performed, and decisions
reached by the lead and support
agencies. The general process of
documenting decisions is similar for
either operable units or comprehensive
remedial actions; however, the content
and level of detail will vary depending
on the scope of the action.
Response to comments: Few
comments were received on the remedy
selection documentation requirements.
In general, those comments requested
that EPA indicate that the ROD should
explicitly document how each of the
nine evaluation criteria have been
considered and should include the
reasoning on all key issues addressed in
the decision process, including the bases
for remedial objectives and an
explanation of why ARARs are
applicable or relevant and appropriate.
EPA agrees that the consideration of the
nine evaluation criteria, the reasoning
behind all key decisions, the bases for
remedial objectives, and the justification
of the ARAR determinations should be
included in the ROD and sufficient
discussion needs to be included in the
proposed plan so that the basis for the
proposed remedy can be clearly
understood. The ROD should include a
brief summary of the problems posed by
the site, the alternatives evaluated as
potential remedies, the results of that
analysis, the rationale for the remedial
action being selected, and the technical
aspects of the selected action. However,
EPA believes that proposed
8 300.430(0(4) (renumbered as
5 300.430(0(5)) already required the
presentation and discussion of these
items and that no change to the rule is
necessary. This section requires an
explanation of how the nine evaluation
criteria were used to select the remedy
and sets forth the following
requirements for all RODs:
1. All facts, analysis of facts, and site-
specific policy determinations
considered in the course of carrying out
the selection of remedy.
2. A demonstration that the decision
was made in accordance with statutory
and regulatory requirements. The ROD
shall discuss how the requirements of
section 121 of CERCLA have been
addressed.
3. A description of the remediation
goal(s) and/or other performance
standards that the remedial action is
expected to achieve.
4. A description of whether or not
hazardous substances, pollutants, or
contaminants will remain at the site at
levels requiring a five-year review of the
response action.
5. A discussion of significant changes
in the final selected remedy from the
preferred alternative. A responsiveness
summary that identifies and responds to
significant comments should be
available with the ROD. This
responsiveness summary should include
lead agency responses to comments
made by the support agency, as
recommended by one commenter.
In addition, EPA has established
detailed guidance on proposed plans,
RODs and other decision documents in
-------
8732
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
"Interim Final Guidance on Preparing
Superfund Decision Documents"
OSWER Directive No. 9335.3-02
(October 1989).
A commenter recommended deleting
the phrase "as appropriate" from the
requirement to document all facts,
analyses of facts, and site-specific
policy decisions in the ROD. In
response, EPA believes that in certain
situations, some information may not
need to be included in the ROD, e.g.,
where the information is already
documented adequately in the
administrative record. In other cases, a
document may not be appropriate for
inclusion in the administrative record at
all (see the discussion in subpart 1 on
what is appropriate for inclusion in the
administrative record). Thus, EPA is not
removing the phrase "as appropriate"
from the rule.
Similarly, this commenter
recommended that the phrase "as
appropriate" be deleted from the
requirement to indicate remediation
levels, arguing that such levels should
always be documented in the ROD. EPA
agrees that whenever remediation
levels, which have been renamed
remediation goals, are established they
should be documented in the ROD.
However, EPA believes it is necessary
to retain existing language to provide for
RODs for interim actions, which may
not always specify final remediation
goals, and for decisions that select no
action, which will not establish
remediation goals.
Final rule: Minor clarifying changes
are being made to proposed
§ 300.430(f)(4)(renumbered as final
§ 300.430(f)(5)). The rule notes that the
documentation in the proposed plan and
the ROD should be at a level of detail
appropriate to the site situation.
Name: Ground-water policy.
Background: EPA's Superfund
program uses EPA's Ground-Water
Protection Strategy as guidance when
determining the appropriate remediation
for contaminated ground water at
CERCLA sites. EPA's Ground-Water
Protection Strategy establishes different
degrees of protection for ground waters
based on their vulnerability, use, and
value. The goal of EPA's Superfund
approach is to return usable ground
waters to their beneficial uses within a
timeframe that is reasonable given the
particular circumstances of the site. The
Superfund remedial process assesses
the characteristics of the affected
ground water as the first step in
deciding the remediation goal for
ground-water restoration, the timeframe
within which the restoration will occur,
and the most appropriate method for
achieving these goals. A determination
is made as to whether the contaminated
ground water falls within Class I, II. or
III. (Guidance for making this
determination is available in "EPA
Guidelines for Ground-Water
Classification" (Final Draft, December
1986).)
Reasonable restoration time periods
may range from very rapid (one to five
years) to relatively extended (perhaps
several decades). EPA's preference is for
rapid restoration, when practicable, of
Class I ground waters and contaminated
ground waters that are currently, or
likely in the near-term to be, the source
of a drinking water supply. The most
appropriate timeframe must, however,
be determined through an analysis of
alternatives. The minimum restoration
timeframe will be determined by
hydrogeological conditions, specific
contaminants at a site, and the size of
the contaminant plume. If there are
other readily available drinking water
sources of sufficient quality and yield
that may be used as an alternative
water supply, the necessity for rapid
restoration of the contaminated ground
water may be reduced.
More rapid restoration of ground
water is favored in situations where a
future demand for drinking water from
ground water is likely and other
potential sources are not sufficient.
Rapid restoration may also be
appropriate where the institutional
controls to prevent the utilization of
contaminated ground water for drinking
water purposes are not clearly effective
or reliable. Institutional controls will
usually be used as supplementary
protective measures during
implementation of ground-water
remedies.
For Class I and II ground waters,
preliminary remediation goals are
generally set at maximum contaminant
levels, and non-zero MCLGs where
relevant and appropriate, promulgated
under the Safe Drinking Water Act or
more stringent state standards (see
ARARs preamble section below on "Use
of maximum contaminant level goals for
ground-water cleanups"). CERCLA
alternate concentration limits may also
be used if the requirements of CERCLA
section 122(d)(2)(B)(ii) are met (see
ARARs preamble section below on "Use
of alternate concentration limits
(ACLs).") The method for establishing
ACLs under CERCLA generally
considers the factors specified for
establishing ACLs under RCRA with
several additional restrictions. The
ground water must have a known or
projected point of entry to surface water
with no statistically significant
increases in contaminant concentration
in the surface water, or at any point
where there is reason to believe
accumulation of constituents may occur
downstream. In addition, the remedial
action must include enforceable
measures that will preclude human
exposure to the contaminated ground
water at any point between the facility
boundary and all known and projected
points of entry of such ground water into
surface water.
The Superfund program will usually
consider several different alternative
restoration time periods and
methodologies to achieve the
preliminary remediation goal and select
the most appropriate option (including
the final remediation goal] by balancing
tradeoffs of long-term effectiveness,
reductions of toxicity, mobility, or
volume through treatment, short-term
effectiveness, implementability, and
cost.
For Class III ground water (i.e., ground
water that is unsuitable for human
consumption—due to high salinity or
widespread contamination that is not
related to a specific contamination
source—and that does not have the
potential to affect drinkable or
environmentally significant ground
water), drinking water standards are not
ARAR and will not be used to determine
preliminary remediation goals.
Remediation timeframes will be
developed based on the specific site
conditions. The beneficial use of the
ground water (e.g., agricultural or
industrial use), if any, is determined;
and the remediation approach will be
tailored for returning the ground water
to that designated use. Environmental
receptors and systems may well
determine the necessity and extent of
ground-water remediation. In general,
alternatives for Class III ground waters
will be relatively limited and the focus
may be, for example, on preventing
adverse spread of the significant
contamination or source control to
prevent exposure to waste materials or
contamination.
Widespread contamination due to
multiple sources is handled in a special
way by the Superfund program. At most
NPL sites, program policy is to
determine contributors to the aquifer
contamination, and involve them in the
overall response action. EPA will take
the lead role in managing the overall
response if the NPL site is the primary
contributor to the multiple-source
problem. In the case of areawide
ground-water contamination caused by
multiple sources, Superfund
participation in the overall ground-water
remediation will be proportional to the
contribution the NPL site(s) makes to the
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations 8733
area wide problem, to the extent it can
be determined. EPA may also take any
action necessary to protect human
health and the environment, such as
providing alternate water supplies or
wellhead treatment, if there is a threat
to human health and the environment.
Response to comments: The use of the
Ground-Water Protection Strategy as a
framework for Superfund ground-water
response actions was the subject of
many comments. Some commenters
stated that the use of the strategy, and
the Guidelines for Ground-Water
Classification that support the strategy,
was ill-advised and possibly illegal.
Others supported the use of the strategy
and classification guidelines, and a third
group supported their use, provided site-
specific decision-making concerning
appropriate remediation was
maintained. In response, part of the
strategy is a scheme for classifying
ground waters according to their
beneficial uses. The Superfund program
uses this scheme as a framework to help
decide the level of remediation that is
appropriate for that ground water. For
the most highly valued uses, such as
drinking water, the most rapid
remediation will be employed, to the
extent practicable. Ground water that is
naturally unusable because of
characteristics such as high salinity may
not be actively remediated.
Commenters questioning or objecting
to the use of the Guidelines for Ground-
Water Classification noted that the
guidelines have not received adequate
notice and comment for rulemaking and
have not been formally promulgated.
One of those commenters stated that the
proposed NCP improperly makes the
Ground-Water Protection Strategy into a
"super ARAR." EPA disagrees that
either the Ground-Water Protection
Strategy or the Guidelines for Ground-
Water Classification are an ARAR. The
strategy provides overarching guidance
that EPA considers in deciding how best
to protect human health and critical
environmental systems threatened by
contaminated ground water. EPA
developed guidelines, consistent with
the strategy, as guidance to apply the
classification system. The guidelines are
used by the Superfund program as
guidance to help make decisions on the
level of cleanup necessary for ground
water at Superfund sites. The guidelines
are not used as strict requirements.
As noted above, the strategy, and the
guidelines that help implement the
strategy, are not ARARs. Rather, they
help define situations for which
standards may be applicable or relevant
and appropriate and help set goals for
ground-water remediation. At every site,
EPA must decide the appropriate level
of remediation necessary to protect
human health and the environment and
determine what requirements are
ARARs based on the beneficial use of
the ground water and specific conditions
of the site. The guidelines are not a
means of circumventing the selection of
a remedy that will protect human health
and the environment; they are only tools
to apply the ground-water strategy. Site-
specific decisions will need to be
justified in the proposed plan and the
public will have an opportunity to
comment on EPA's findings and
proposed actions at that time.
One commenter said that the use of a
ground-water classification system
would inappropriately insert cost into
cleanup decisions. EPA disagrees. The
cost of remediation does not affect the
determination of the highest beneficial
use of the ground water and
consequently does not affect the
classification. However, all remedies
must be cost-effective, which may affect
the effort exerted to achieve the
remediation goals in a shorter
timeframe. A commenter requested that
EPA include cost as an explicit factor in
determining when aggressive measures
will be used to address ground-water
contamination. EPA believes this is
unnecessary. Cost-effectiveness is
sufficiently addressed through the
determination that remedies, including
ground-water actions, are cost-effective.
One commenter opposed the
classification guidelines stating that the
use of the guidelines is to argue against
restoring Class III ground waters.
Unfortunately, EPA has a limited budget
to clean up the many sites for which it
has responsibility. Because Class HI
ground waters already contain high
levels of salinity, hardness, or other
chemicals; have no beneficial use to
humans or environmental ecosystems;
and have a low degree of
interconnection with Class I or II ground
waters (i.e., neither humans nor the
environment are threatened by
contamination in these ground waters),
EPA believes that scarce resources can
better be spent cleaning up sites and
ground waters that do pose a threat to
human health and the environment.
Several commenters supported the use
of the differential ground-water
protection and noted that CERCLA
section 121(d)(2)(B)(i) refers to "the
designated or potential use" of the
ground water in determining cleanup
levels, reflecting Congress* intent to
apply varying cleanup standards to
different kinds of ground water.
Several commenters. while supporting
EPA's position that remediation levels
for ground water will depend on the
beneficial use of the ground waters,
expressed concern about the
implementation of the ground-water
guidelines. Several commenters said
that ground-water classification should
only be done by the states (which for
these purposes includes federally
recognized Indian tribes or local
governments). Another commenter
stated that classification by a state
should supersede EPA's classification of
ground water unless EPA's classification
would require a more stringent cleanup.
EPA basically agrees; and to the degree
that the state or local governments have
classified their ground water, EPA will
consider these classifications and their
applicability to the selection of an
appropriate remedy.
EPA will make use of state
classifications when determining
appropriate remediation approaches for
ground water. When EPA must classify
ground water for a Superfund action,
that classification is only used to
determine the scope of site-specific
remedial actions and has no bearing
outside of the Superfund action. It is not
used by Superfund to provide regional
classification of ground waters.
Classification of ground waters is only
done to the extent it guides remedy
selection.
If a state classification would lead to
a less stringent solution than the EPA
classification scheme, then the
remediation goals will generally be
based on EPA classification. Superfund
remedies must be protective. If the use
of state classification would result in the
selection of a nonprotective remedy,
EPA would not follow the state scheme.
Two commenters argued that ground-
water classification and remediation
decisions should be based on current
uses of the ground water, not just
ground-water characteristics (i.e.,
potential use of the ground water). EPA
disagrees. It is EPA policy to consider
the beneficial use of the water and to
protect against current and future
exposures. Ground water is a valuable
resource and should be protected and
restored if necessary and practicable.
Ground water that is not currently used
may be a drinking water supply in the
future.
Another major focus of comments wai
the issue of whether natural attenuation
was an appropriate method for dealing
with ground-water contamination. The
comments reflect two points of view:
one that supports natural attenuation as
a reasonable and cost-effective means
of remediating contaminated ground
water and another that believes natural
-------
8734 Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
attenuation is an inadequate method of
cleanup.
Those commenters supportive of the
use of natural attenuation as a method
of addressing ground water recognize
that ground-water extraction and
treatment ("pump and treat") is
generally the most effective method of
reducing concentrations of highly
contaminated ground water, but note
that pump and treat systems are less
effective in further reducing low levels
of contamination to achieve remediation
goals. These commenters suggest that
natural attenuation may play a vital role
in achieving the final increment of
cleanup once pump and treat systems
reach the point of diminishing returns.
EPA agrees with the understanding
reflected in these comments that active
ground-water restoration may not
always be able to achieve the final
increment of cleanup in a timeframe that
is reasonable. It is in recognition of the
possible limitations on the effectiveness
of pump and treat systems that EPA's
approach provides for periodic
evaluation of such systems and allows
for the use of natural attenuation to
complete cleanup actions in some
circumstances. In some cases, proposed
ground-water remediation goals may not
be achievable. In these cases, it will be
appropriate to modify the remediation
goal to reflect limitations of the
response action.
Several commenters suggested that
EPA use institutional controls and
natural attenuation to address ground-
water contamination where human
exposure to contaminated ground water
is not currently occurring but potentially
may occur. One commenter suggested
that, in this situation, all ground-water
remedies should be compared with
natural attenuation. In response, during
the analysis of remedial alternatives
and remedy selection, EPA considers the
current and potential use of the ground
water. Natural attenuation is generally
recommended only when active
restoration is not practicable, cost-
effective or warranted because of site-
specific conditions (e.g., Class III ground
water or ground water which is unlikely
to be used in the foreseeable future and
therefore can be remediated over an
extended period of time) or where
natural attenuation is expected to
reduce the concentration of
contaminants in the ground water to the
remediation goals—levels determined to
be protective of human health and
sensitive ecological environments—in a
reasonable timeframe. Further, in
situations where there would be little
likelihood of exposure due to the
remoteness of the site, alternate points
of compliance may be considered,
provided contamination in the aquifer is
controlled from further migration. The
selection of natural attenuation by EPA
does not mean that the ground water
has been written off and not cleaned up
but rather that biodegradation,
dispersion, dilution, and adsorption will
effectively reduce contaminants in the
ground water to concentrations
protective of human health in a
timeframe comparable to that which
could be achieved through active
restoration. Institutional controls may
be necessary to ensure that such ground
waters are not used before levels
protective of human health are reached.
Commenters opposed to natural
attenuation do not find this method an
acceptable substitute for treatment,
noting that many contaminants at
Superfund sites are not readily degraded
in the subsurface. EPA agrees that
natural attenuation will not provide
contaminant reduction in all cases and
that in many situations natural
attenuation will not be appropriate as
the sole remedial action. Factors that
affect the ability of natural attenuation
to effectively reduce contaminant
concentrations include the biological
and chemical degradability of the
contaminants, the physical and chemical
characteristics of the ground water, and
physical characteristics of the geological
medium.
In addition to objecting to the use of
natural attenuation, some commenters
provided specific examples of where
they would consider rapid restoration of
ground water to be necessary, such as
water that feeds into, or that is
interconnected with, sensitive or
vulnerable aquatic ecosystems or where
contaminated ground water results in
vapors that impact nearby buildings.
Under current policy, EPA determines
remediation timeframes that are
reasonable given particular site
circumstances. Some "ecologically vital"
ground water that feeds into or is
interconnected with sensitive or
vulnerable aquatic ecosystems is treated
as a Class I ground water and actively
restored, to the extent practicable. In
addition, ground waters in designated
wellhead protection areas are also to be
treated as Class I ground waters and
will be rapidly restored, to the extent
practicable. Contamination of buildings
due to soil vapors from ground water
will be addressed on a site-specific
basis and, if determined to be a
continuing source of contamination,
contaminated ground water will be
actively restored, to the extent
practicable. In contrast, such factors as
location, proximity to population, and
Likelihood of exposure may allow much
more extended timeframes for
remediating ground water.
One commenter felt that more
realistic assumptions and models were
needed to calculate restoration times.
The commenter believes EPA uses
unrealistic and unproven models that
result in overly optimistic estimates of
restoration timeframes. Another
commenter requested clarification on
the technical feasibility of active
ground-water restoration.
In response, EPA notes that it is
engaged in ongoing research and
evaluation of the effectiveness of
ground-water pump and treat systems.
This analysis has confirmed the
effectiveness of plume containment
measures in preventing further migration
and of pump and treat systems in
achieving significant reductions of
ground-water contamination.
"Evaluation of Ground-Water Extraction
Remedies," EPA No. 540.2-89 (October
1969). However, this analysis also
indicates the significant uncertainty
involved in predicting the ultimate
effectiveness of ground-water pump and
treat systems. In many cases, this
uncertainty warrants inclusion of
contingencies in remedy selection
decisions for contaminated ground
water. Where uncertainty is great, a
phased approach to remediation may be
most appropriate. Such phasing might
involve initial measures to contain the
contaminant plume followed by
operation of a pump and treat system to
initiate contaminant removal from the
ground water and to gain a better
understanding of the ground-water
system at the site. The decision as to the
ultimate remediation achievable in the
ground water would be made on the
basis of an evaluation of the
effectiveness of the pump and treat
system conducted after a defined period
of time. EPA's "Guidance on Remedial
Action for Contaminated Ground Water
at Superfund Sites" (December 1988)
discusses factors that may be
considered in establishing restoration
timeframes.
To reflect the fact that restoration of
ground water to beneficial use may not
be practicable, the expectation from the
preamble to the proposal that will be
incorporated in today's rule has been
modified. The expectation concerning
ground-water remediation now indicates
that when ground-water restoration is
not practicable, remedial action will
focus on plume containment to prevent
contaminant migration and further
contamination of the ground water,
prevention of exposures, and evaluation
of further risk reduction.
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations 8735
Another commenter contends that
language in the preamble to the
proposed rule creates the impression
that active restoration is not practicable
in fractured bedrock aquifers, which
they stated was technically incorrect
and inaccurately reflects other work in
progress within EPA. EPA is clarifying
that all of the factors listed as
potentially making active ground-water
restoration impracticable, including the
existence of fractured bedrock or Karst
formations, widespread plumes from
non-point sources, particular
contaminants (e.g., dense non-aqueous
phase liquids), and physicochemical
limitations (e.g., interactions between
contaminants and aquifer material), are
only examples of situations that may
make active ground-water restoration
difficult or impracticable. The presence
of any of these situations does not mean
that active restoration of ground water
is presumptively impracticable and
should not be considered; the decision
of what ground water is or is not
practicable to restore should be made
on a site-specific basis.
Final rule: An expectation regarding
restoration of ground water has been
added in § 300.430(a)(l)(iii)(F).
Section 300.435. Remedial Design/
Remedial Action, Operation and
Maintenance
Name: Section 300.435(b)(l).
Environmental samples during RD/RA.
Proposed rule: The proposed remedial
design/remedial action (RD/RA) section
did not discuss QA/QC requirements for
chemical and analytical testing and
sampling procedures associated with
samples taken during the RD/RA for the
purpose of determining whether cleanup
action levels, as specified in the ROD,
are achieved.
Discussion: Sampling and analysis
plans prepared during the RI/FS are
required, under final | 300.430(b)(8), to
follow a process ensuring that data of
sufficient quality and quantity is
obtained, and that such sampling and
analysis plans be reviewed and
approved by EPA. In order to encourage
consistency between the QA/QC of the
sampling data generated during the RI/
FS which is relied upon when
determining cleanup action levels in the
ROD, and confirmatory sampling data
used to ensure that cleanup action levels
are met during the RD/RA, EPA has
decided that the QA/QC requirements
for cleanup action level samples under
the Rl/FS generally should also apply to
those taken during the RD/RA.
Final rule: The following section is
added to the final rule in § 300.435(b)(l)
to encourage consistency between the
QA/QC of RI/FS and RD/RA samples
taken for the purpose of cleanup action
levels:
Those portions of RD/RA sampling and
analysis plans describing the QA/QC
requirements for chemical arid analytical
testing and sampling procedures of samples
taken for the purpose of determining whether
cleanup action levels specified in the ROD
are achieved, generally will be consistent
with the requirements of { 300.430(b)(8).
Name: Section 300.435(d). Contractor
conflict of interest.
Proposed rule: EPA proposed new
§ 300.435(d) on contractor conflict of
interest for RD/RA and O&M activities
which are Fund-financed. It states that
potential contractors will be required to
provide information on their status and
on the status of their parent companies,
affiliates, and subcontractors as
potentially responsible parties at the
site, and that all such information must
be provided and disclosed before, and
after (if so discovered) submission of
their bid or proposal or contract award.
It further provides that the lead agency
should evaluate the information prior to
contract award and determine that
either: (1) No conflict of interest exists
which would affect their performance;
or (2) a conflict of interest exists which
prevents them from serving the best
interests of the state or federal
government. If such a conflict of interest
exists, the offerer or bidder may be
declared to be a "nonresponsible" or
"ineligible" offerer or bidder in
accordance with appropriate acquisition
regulations and the contract may be
awarded to the next eligible offerer or
bidder. The preamble to the proposed
rule noted that the lead agency may opt
for actions less severe than denial of the
contract award for situations in which
the contractor's role at the site has been
very minor or is not yet determined (53
FR 51453).
In the enforcement context, PRPs may
undertake remedial actions under
consent decrees or court orders, and
EPA commits significant oversight
dollars to such actions to ensure that the
inherent conflict of interest does not
affect the proper conduct of the remedial
action. By contrast, in Fund-financed
situations, EPA does not, as a routine
measure, commit significant dollars for
oversight. This provision would alert
EPA to potential conflict of interest
situations at Fund-lead sites, and allows
EPA to decide if it is cost-effective to
award the contract and provide
additional oversight.
Response to comments: A few
commenters requested that EPA provide
more detailed guidance on the
circumstances under which a contractor
would be determined nonresponsible or
ineligible. One commenter believed that
EPA did not intend the proposed
regulation to be read so restrictively as
to result in an automatic determination
of being "nonresponsible", and
requested additional guidance regarding
the circumstances under which a
contractor's status as a PRP is
considered likely to affect contract
performance. The commenter argued
that EPA has not stated in the proposal
why status as a PRP necessarily raises a
conflict of interest as defined in the
federal acquisition regulations (FAR). A
few commenters recognized that a
potential for conflict of interest might
exist if a PRP selects a remedy for a site,
or possibly if a design were conducted
by a PRP. However, for situations
involving implementation of a chosen
remedy, these commenters felt it was
unlikely that such conflict of interest
would occur, and requested a detailed
discussion of how a construction
contractor's objectivity would be
affected by its status as a PRP. A
commenter noted that EPA might err on
the side of an automatic exclusion of a
contractor from conducting the remedial
action if such detailed discussion is not
provided in the preamble or final rule;
such actions would thus significantly
reduce competition for Superfund
contracts and consequently increase
costs.
Another commenter felt that
implementation of oversight by the lead
agency would alleviate EPA's concerns
that the contractor would not serve the
government's best interests. The
commenter also noted that EPA should
apply the rule only prospectively, in
order to avoid problems associated with
disqualifying a contractor who is
already undertaking work.
EPA agrees that it does not intend the
proposed regulation to be read so
restrictively as to result in automatic
determinations of a PRP being
considered "nonresponsible" or
"ineligible". However, EPA's use of
contractors with conflicts of interest in
the Superfund program has been a major
issue of concern over the past several
years. After a review of existing EPA
policies and procedures covering the
Superfund contracting program along
with interviews with both internal and
external parties having knowledge of
EPA's administrative procedures
regarding conflict of interest,
I 300.435(d) was proposed because it
was determined that EPA's procedures
for this issue need strengthening in order
to avoid conflicts in the future.
EPA is concerned with hiring
contractors (or their subcontractors) to
implement remedial actions under those
-------
8736 Federal Register / Vol. 55. No. 46 / Thursday. March 8, 1990 / Rules and Regulations
situations where a significant potential
exists that such activity could
significantly affect the success of the
lead agency's ongoing or potential cost
recovery or litigation efforts, or
significantly impact the contractor's
own liabilities. For example, actions
such as the gathering, uncovering or
documentation of evidence might be a
standard task of a remedial action
contractor at sites with potential for cost
recovery. Contractors or subcontractors
with conflicts of interest might not be
completely objective or impartial when
performing this work if evidence with
unfavorable ramifications towards the
contractor was encountered.
Contractors or subcontractors with
conflicts might also be tempted to
recommend cost-saving measures that
are not environmentally protective, in
order to lower their potential cost share.
The lead agency usually conducts
oversight of PRP-lead RD/RA projects in
order to ensure that the RD/RA effort is
proceeding in a manner which assures
compliance with the requirements of the
applicable record of decision and
enforcement order or decree. However,
at Fund-lead sites, EPA does not
routinely engage in the level of scrutiny
that may be necessary to prevent (or
discover) actions motivated by the
liability interests of the contractor. Thus,
at a minimum, EPA needs to discover
conflicts of interest that may warrant
additional scrutiny; accordingly.
disclosure requirements are necessary
for Fund-lead projects.
In some cases, EPA may decide that
even though a conflict of interest with a
potential contractor or PRP exists, other
considerations may justify its selection
as a governmental contractor. Examples
of such considerations include the
uniqueness of site conditions, remedy,
or the PRP's prior involvement at the
site, the limited extent of potential
liability of the contractor (or affiliate], or
situations involving a significant
potential for decreased competition or
cost savings to the government (for
example, if the contractor were the best
offerer). In these situations, the lead
agency might try to find an approach to
mitigate such circumstances, ask
offerers to list conflicts as well as their
proposed steps they would take to
lessen the conflict, or increase the level
of oversight normally associated with
that activity. In other cases, however,
the lead agency might decide that the
nature of the conflict overrides the
potential benefits which could be
realized by use of such contractors, and
that governmental oversight might not
successfully address this concern. The
lead agency will evaluate each situation
on a case-by-case basis through the
careful exercise of judgement and the
weighing of a variety of factors based on
the specifics of the situation being
reviewed.
In making and implementing these
decisions under direct federal
procurement, federal agencies are
required to comply with the procedures
set out in the applicable federal
acquisition regulations. See FAR 9.507.
EPA acquisitions are governed by 48
CFR 1509.507, which are consistent with
the FAR. State procurements should
follow the applicable state acquisition
regulations in making and implementing
these decisions; these regulations should
be consistent with the applicable federal
regulations.
EPA also does not agree that the lead
agency should apply this section of the
rule prospectively only. The same risks
that exist from prospective contracts
exist with regard to contracts underway.
EPA, other federal agencies and state
contracting officers should review
existing remedial action contracts and
determine whether the requirements set
forth in this regulation are provided for
in those contracts. Where it is
determined to be appropriate, these
government agency contracting officers
should modify existing remedial action
contracts to ensure that contractors
already undertaking federally funded
work will be required to submit
information under this section regarding
any potential conflicts of interest. If EPA
determines that a conflict does exist, the
agency will decide on a case-by-case
basis what action is appropriate.
Final rule: Proposed § 300.435(d) is
revised as follows to better define the
circumstances under which the lead
agency would determine whether a
conflict of interest would exist, and to
more accurately reflect possible EPA
actions in response to such a finding:
(d) Contractor conflict of interest. [1] For
Fund-financed RD/RA and O&M activities,
the lead agency shall:
(i) Include appropriate language in the
solicitation requiring potential prime
contractors to submit information on their
status, as well as the status of their
subcontractors, parent companies, and
affiliates, as potentially responsible parties at
the site.
(ii) Require potential prime contractors to
certify that, to the best of their knowledge.
they and their potential subcontractors,
parent companies, and affiliates have
disclosed all information described in
{ 300.435(d)(l)(i) or that no such information
exists, and that any such information
discovered after submission of their bid or
proposal or contract award will be disclosed
immediately.
(2) Prior to contract award, the lead agency
shall evaluate the information provided by
the potential prune contractors and:
(i) Determine whether they have conflicts
of interest that could significantly impact the
performance of the contract or the liability of
potential prime contractors or subcontractors.
(ii) If a potential prime contractor or
subcontractor has a conflict of interest that
cannot be avoided or otherwise resolved, and
using that potential prime contractor or
subcontractor to conduct RD/RA or O&M
work under a Fund-financed action would not
be in the best interests of the state or federal
government, an offer or bid contemplating
use of that prime contractor or subcontractor
may be declared nonresponsible or ineligible
for award in accordance with appropriate
acquisition regulations, and the contract may
be awarded to the next eligible offerer or
bidder.
Name: Sections 300.5 and 300.435(f).
Operation and maintenance.
Proposed rule: EPA proposed a new
section that discusses operation and
maintenance (O&M). the final step in the
remedial process. Proposed J 300.435(f)
stated that for remedial actions which
use treatment or other measures to
restore ground or surface waters, the
operation of such facilities until a level
protective of human health or the
environment is achieved, or for up to 10
years after construction/start-up,
whichever is earlier, will be considered
part of the remedial action. EPA pays up
to a 90 percent cost share for remedial
action; activities necessary after this
period would be considered operation
and maintenance (O&M) under
§ 300.435(f)(2) of the proposed rule, and
CERCLA section 104(c)(6).
Proposed § 300.435(f)(3)(renumbered
as final $ 300.435(f)(4)) made clear that
the following would not be considered
necessary measures to restore
contaminated ground or surface water,
and thus would not be eligible for up to
10 years cost-share: "(i) Source control
measures initiated to prevent
contamination of ground or surface
waters; and (ii) Ground or surface water
measures initiated for the primary
purpose of providing a drinking water
supply, not for the purpose of restoring
ground water." Proposed § 300.435(f)(4)
(revised and renumbered as final
{ 300.435(0(3)) then noted that "The 10-
year period will begin once the ROD has
been signed, construction activities have
been completed, and the remedy is
operational and functional."
Response to comments: EPA received
several comments raising concerns with
the proposed rule. Since most
commenters were concerned with
particular sub-components of this issue,
EPA will respond separately to issues
on each sub-component. Revisions to
-------
Federal Register / Vol. 55. No. 46 / Thursday, March 8. 1990 / Rules and Regulations 8737
proposed §§ 300.5 and 300.435(f) will be
discussed at the end of these sections.
1. Source control maintenance
measures. Several commenters argued
that EPA has misinterpreted Congress's
intent and does not have statutory
authority in excluding source control
maintenance measures from federal
funding through the cost-sharing
provisions for remedial actions. Some
felt that Congress intended that source
control maintenance measures (e.g.,
landfill cap maintenance and leachate
collection and treatment) should be
considered necessary to the proper
functioning of measures restoring
ground-water quality (e.g., ground-water
pump/treat), and thus should be
included within the coverage of
CERCLA section 104(c)(6). These
commenters reason that if source
control maintenance measures are not
operated, no restoration would occur,
the protection of public health would not
be assured, and water quality would not
improve. Several commenters also
argued that excluding "source control
measures" is much too broad and
requires clarification and examples, and
stated that the example used in the
proposed rule describing leachate
control systems for containment units
(53 FR 51453-54) exemplifies ground
water restoration as well as source
control. Another felt that the only
example of a source control measure
which would have operation and
maintenance costs fully funded by the
states would be a leachate collection
system as found in a RCRA Subtitle C
landfill.
In response, EPA has decided as a
matter of policy not to fund the
operation and maintenance of source
control measures (e.g., landfill cap
maintenance, leachate collection/
treatment, gas collection/treatment)
once such measures become operational
and functional. EPA believes that source
control maintenance measures should
be treated like other O&M activities
under CERCLA section 104(c)(6)(see
preamble discussion on § 300.510(c)(l)
below).
As a threshold matter, it is important
to note that EPA will continue to fund
the construction of the source control
measures themselves (e.g., construction
of the landfill cap or leachate collection
system}. As EPA noted in the preamble
to the proposed NCP, EPA intends to
pay up to a 90 percent Fund share for all
source control measures until
"completion of construction of a source
control system, and * * * the system is
operational and functioning properly"
(53 FR 51454). After that point, when the
system is simply being maintained and
the contamination from the source is
being controlled, the O&M phase begins
for these measures, and EPA believes
that it would be inappropriate for the
Fund to continue to pay for such
activities.
Congress made clear in CERCLA
section 104(c)(6) that certain ground or
surface water restoration actions would
be considered "remedial action" (such
that, under EPA policy, EPA would pay
up to a 90 percent cost share) as
compared to "O&M" (for which the
states pay all costs under a long-
standing EPA policy). EPA has
determined that although a failure to
perform source control maintenance
could result in some new contamination
of ground or surface water, maintenance
measures are not specific restoration
actions and do not come within the
category of remedial measures
"necessary to restore ground or surface
water" as used in section 104(c)(6).
Rather, they fall within the category of
normal operation and maintenance
activities.
Congress was specifically concerned
with including within the idea of
"remedial action" (and thereby within
the group of actions funded at up to a 90
percent level by EPA), those measures
that actively clean up ground and
surface water. In a discussion of the
issue, the Senate Committee on
Environment and Public Works noted
that EPA was paying up to a 90 percent
cost share for most active remediation
efforts, such as drum removals and soil
cleanup, but did not comparably share
in the cost of ground or surface water
cleanup:
The Committee felt that it was important to
specify what the financial obligation of the
Superfund is in regard to the cleanup of
ground and surface water contamination at
sites on the National Priority last. The current
practice of the [EPA] is to finance remedial
action activities such as the removal of
drums, excavation of soil, and initial
treatment of ground and surface waters on
the 90/10 basis provided in section 104(c)(3).
Under this policy, the long-term treatment of
contaminated water becomes a state
responsibility one year after all other
remedial actions are completed. The
continued treatment of contaminated water,
which is in actuality a major part of the
cleanup program, is considered by EPA to be
an operation and maintenance cost.
S. Rep. 11,99th Cong., 1st Sess. at 20-21
(1985), and S. Rep. 631,98th Cong., 2d
Sess. at 9 (1984). (Emphasis added.)
In order to distinguish between active
cleanup ("remedial") actions and O&M,
Congress specified in section 104(c)(6]
that remedial actions would include
those measures that are necessary to
restore ground and surface water to "a
level that assures protection of human
health and the environment." By
contrast, the statute provides that
"(activities required to maintain the
effectiveness of such measures * * *
shall be considered operation or
maintenance."
This distinction flows directly from
the concern, expressed by the Senate
Environment Committee, that the
dividing line between remedial and
O&M actions, for the purposes of cost
share funding, should be achieving
protective levels:
This distinction between remedial action
and operation and maintenance should be
based on the degree of cleanup that has been
achieved. This section determines that the
cleanup of ground and surface water,
whether on or off-site, is a remedial action
until the protection of human health and the
environment is assured • • •
Id. Thus, Congress appears to have
contemplated that active measures
necessary to clean up (or restore) a
water body (e.g., the pumping and
treating of groundwater) would be
considered to be remedial action, but
O&M to maintain that remedy would
not.
However, at the same time. Congress
was sensitive to EPA's concern that too
broad a policy would require EPA to set
aside large amounts of Superfund money
for water treatment measures, thereby
limiting EPA's ability to take other
response actions. As the Senate reports
noted, "[t)he reported bill addresses this
concern by putting a five-year [later
changed to a 10-year] time limit on the
mandatory involvement of the federal
fund in such treatment expenses." Id.
Thus, the section requires EPA to
consider active restoration measures to
be remedial action until protective
levels have been achieved, or for a
period of 10 years after construction-and
commencement of operation, whichever
is earlier.
For example, under section 104(c)(6),
if EPA were to achieve protective levels
(e.g., MCLs) after 8 years of ground-
water treatment, then the "remedial"
action phase would be considered
complete and the ground water restored,
and activities over the next 4 years (and
thereafter) to maintain the effectiveness
of that remedy would be considered to
be O&M. However, these O&M activities
might well include maintenance of the
cap on a landfill above the aquifer, or
continued operation of the landfill's
leachate collection system. Because
these source control maintenance
activities would merely "maintain the
effectiveness of the restoration"—and
not be necessary to achieve the
remedial action objectives and
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
remediation goals in the ROD—they are
clearly the types of measures that are
not "necessary" to restore the aquifer
even though if they were not performed,
some degradation of the aquifer might
occur. These measures are O&M
activities, and will be funded by the
state.
If, as the commenters suggest, EPA
considered source control maintenance
and other O&M activities performed
during the period of active restoration to
be remedial action "necessary" to
restore the aquifer (on the theory that if
the O&M were not performed, the
aquifer could become degraded], then
EPA would also be compelled to
consider O&M to be remedial action
during the period after protectiveness
levels have been reached (if less than 10
years after construction). Such an
interpretation would directly conflict
with the language and legislative history
of section 104(c)(6] that ends the
remedial action stage when protective
levels are achieved or in 10 years.
The commenters' interpretation would
also lead to a situation where virtually
all on-site O&M activities could be
characterized as "remedial action"
under section 104(c)(6), on the theory
that if they were not maintained, they
might degrade the ground/surface water;
again, the legislative history (and the
wording of section 104(c)(6)) do not
suggest that this was Congress1
intention.
EPA's analysis is also supported by
the common sense notion that once a
landfill leachate collection system has
been constructed and is operational, the
releases have been controlled and the
remedial action phase completed;
ongoing operation of the leachate
control and cap maintenance would
merely be necessary to maintain that
status quo. EPA further believes that
this position is consistent with the need
to balance demands on the Fund.
The record of decision for each
operable unit of a site's remedy should
clearly differentiate, where applicable,
which remedial action components will
serve the function of "source control
maintenance" measures as compared to
"restoration" measures. Source control
maintenance, in particular, includes
maintenance of caps, flood/erosion
control measures, slurry walls, gas and
leachate collection/treatment measures,
and ground/surface water interception/
diversion measures. In addition, source
control maintenance measures include
those leachate collection/treatment
measures which function: (1) Within a
containment unit, (2) within a source, or
(3) immediately downgradient and
adjacent to a source, and which serve to
collect leachate from a source. In
contrast, "source control action" is
generally considered to include the
construction or installation and start-
up—as compared to maintenance—of
those actions necessary to prevent the
continued "release" of hazardous
substances or pollutants or
contaminants into the environment from
a source (generally on top of or within
the ground, or in buildings or other
structures on the site).
2. Measures whose primary purpose is
to provide drinking water. Several
commenters argued that EPA has
misinterpreted Congress* intent, and
does not have statutory authority, in
excluding from federal funding through
the cost-sharing provisions for remedial
actions, ground/surface water measures
for the primary purpose of providing
drinking water. Several commenters
argue that CERCLA section 104(c)(6)
does not exclude coverage since this
section provides 10-year cost share for
"the completion of treatment or other
measures * * * necessary to restore
ground or surface water to a level which
assures protection of human health and
the environment." They argue that 10-
year cost share is warranted since, if
measures for providing drinking water
are not operated, no restoration would
occur, the protection of public health
would not be assured, and water quality
would not improve. Some commenters
claim that such a requirement would
unfairly burden small communities/
states which would have to pick up the
cost of treating contaminated water
and/or charge a high user fee for the use
of treated water. One commenter
believed that O&M funding should be
extended on a case-by-case basis where
drinking water is provided and the
release at the source is controlled, but
contaminant levels cannot be cost-
effectively contained.
EPA has decided as a matter of policy
not to fund the operation and
maintenance of ground/surface water
measures taken for the primary purpose
of supplying drinking water. Section
104(c)(6) defines as "remedial" action
(subject to up to a 90 percent EPA cost
share) measures necessary to restore
ground or surface water. Providing
drinking water is simply not
"necessary" for restoration. EPA
recognizes that pumping and treating
groundwater to primarily provide
drinking water might, over time, tend to
encourage recharge of the aquifer and
could result in some localized
improvement in ground or surface water
quality; however, the effect is at best
tangential to, not necessary for,
restoration.
Moreover, EPA believes that the
Superfund program was neither
designed nor intended to provide
drinking water to local residents over
the long-term; providing drinking water
generally is the responsibility of state
and local governments and utilities.
CERCLA often does provide drinking
water on a temporary basis (e.g., bottled
water) or construct drinking water
facilities (e.g., water line extensions or
treatment plants) in order to provide
alternative water supplies; however,
EPA does not believe that it is the
purpose of the federal government under
Superfund authority to fund the long-
term operation and maintenance of a
public works project such as a drinking
water treatment system. EPA believes
that this position is consistent with use
of the Fund to implement the clear
mandates of CERCLA.
The commenter suggests that if EPA
does not provide the 10-year cost share
for measures taken for the purpose of
providing drinking water, no restoration
will occur, and protection of human
health will not be assured. EPA
disagrees. First, if the ground or surface
water is contaminated by a release
under CERCLA, EPA may decide to take
action with the primary purpose of
restoring that aquifer (in which case the
cost share would be provided). Second,
if the state and locality believe that
ground or surface water should be
treated for the primary purpose of
providing drinking water, such measures
may be carried out by the state or
locality itself or by the local utility. As
noted above, Superfund was not
intended to be a public works program.
The ROD for each operable unit of a
site's remedy, where applicable, should
clearly differentiate which remedial
action components are "treatment or
other measures initiated for the primary
purpose of supplying drinking water"
versus treatment or other measures
"necessary for restoration." These RODs
should clearly justify why a remedial
action to restore a contaminated aquifer
is or is not determined to be appropriate,
and/or why the cost-effective selected
alternative is to supply drinking water
after treatment or other measures. These
decisions must follow the NCP
requirements involving the development,
screening, and analysis of remedial
alternatives, as well as NCP remedy
selection procedures.
3. Temporary or interim measures.
One commenter argued that in situations
where a ROD for an operable unit
identifies an action as temporary or non-
final in anticipation of a subsequent
final remedy, interim maintenance
should not be considered O&M.
EPA has determined that, in certain
cases, an interim or temporary response
-------
Federal Register / Vol. 55. No. 46 /Thursday. March 8. 1990 / Rules and Regulations
8739
action is both necessary and desirable
in order to control or prevent the further
spread of contamination while EPA is
deciding upon a final remedy for the
site. Indeed, in many cases, a significant
escalation of final restoration remedial
action costs would result if such
measures were not utilized prior to
installation of the remedy for the source.
Therefore, as a matter of policy, EPA
will consider, in certain cases, such
interim measures to be "remedial
action" (eligible for 90 percent funding),
even if the interim measures include
source control maintenance activities.
Such interim action would be conducted
as an operable unit component of a
remedial action.
However, this does not mean that all
interim actions will be so funded. Where
EPA selects a final remedy for an
operable unit (e.g., a final, as compared
to a temporary, landfill cap), then any
maintenance activity for that site will be ,
considered O&M. It is only where the
action is truly temporary, meaning that
EPA anticipates replacing it with a final
measure later on, that the activity will
be considered part of the remedial
action. In effect, EPA considers these
temporary stabilization actions to be a
necessary part of the remedy. Unlike
normal O&M activities, these actions are
not intended to maintain the
effectiveness of the remedy; they are
intended to ensure that the site
conditions do not significantly worsen
while EPA develops a comprehensive
final remedy. Such measures must be
taken promptly in order to assure
protection of human health and the
environment.
4. Time at which a remedy becomes
operational and functional. The time
period for calculating when a remedial
action begins for the purpose of
CERCLA section 104(c)(6) is the point at
which the remedy becomes operational
and functional, and is the relevant point
for starting the ten-year period. In
addition, for non-ground or surface
water restoration remedies, O&M begins
when the remedial action is operational
and functional.
Several commenters requested
clarification as to when a ground or
surface water restoration remedy
becomes "operational and functional"
under proposed § 300.435(f)(4) (revised
and renumbered as final § 300.435(f)(2)
and (3)). One commenter felt that this
determination is a matter of judgment
with some remedies, and felt that a final
inspection resulting in state and EPA
concurrence on this determination was
warranted. One commenter proposed
that the period start when it is
determined that the remedy works, has
no start-up problems, and is performing
as designed for a reasonable period of
time, or either: (1) One year after
construction is complete; or (2) after a
reasonable start-up period after
construction is complete (as defined
through EPA/state SMOA, contract or
agreement), whichever is longer, for
each operable unit. This is referred to as
the start-up period. Another commenter
proposed that the period start when all
parties (EPA, state, PRPs) agree that the
remedy is operational and functional.
In response, under § 300.5, "operation
and maintenance" means measures
required to maintain the effectiveness of
response actions. Except for ground or
surface water restoration actions
covered under § 300.435(f)(3), O&M
measures are initiated after the remedy
has achieved the remedial action
objectives and remediation goals in the
ROD or consent decree, and is
determined to be operational and
functional.
EPA generally agrees with the
comments that a measure should be said
to be operational and functional
approximately one year after
construction has been completed (see
§ 300.510(c)). EPA does not, however,
agree that in a federal- or state-lead
action, the lead agency should await the
agreement of all parties, including PRPs,
before making this finding. Thus, the
final rule provides that a remedy
becomes "operational and functional"
either one year after construction is
complete, or when the remedy is
determined concurrently by EPA and the
state to be functioning properly and is
performing as designed, whichever is
earlier. This timetable is consistent with
EPA experience, and with the period of
time used in construction grant
regulations. See 40 CFR 35.2218(c).
However, EPA also agrees with the
comment that in certain cases a remedy
may not be fully operational after a
year, i.e., such that it merely needs to be
maintained or operated; thus, the state
may request an EPA extension of the
one year limit for project start-up.
Where EPA determines that an
extension of the start-up period is
warranted, an extension would be
granted. If the request is not approved,
the remedy would be considered
operational and functional one year
after its construction, or on the date of
the EPA/state determination that it is
operational and functional, whichever is
earlier.
Other sections of the NCP also discuss
state involvement during and after
remedial actions; specifically,
§ 300.510(c) discusses state assurances
for assuming O&M responsibility, and
§ 300.515(g) discusses state involvement
in remedial action. In order to more
clearly describe EPA/state roles and
coordination between construction
completion and O&M, and to ensure
consistency when applying EPA's
existing policy for the administrative
procedures required to bring sites into
the O&M phase, the following process is
described.
For Fund-financed remedial actions,
the lead and support agencies should
conduct a joint inspection at the
conclusion of construction of the
remedial action and concur through a
joint memorandum that: (1) The remedy
has been constructed in accordance
with the ROD and with the remedial
design, and (2) the start-up period
should begin. At the end of the start-up
period, the construction contractor or
agency will prepare a remedial action
report that the work was performed
within desired specifications and is
operational and functional. The lead and
support agencies will then conduct a
joint inspection in order to determine
whether to accept the remedial action
report.
5. When is ground or surface water
considered "restored." One commenter
requested clarification in the proposed
regulation regarding when a surface or
ground water is considered to have been
fully restored.
Ground or surface water restoration is
considered to be complete, for the
purposes of CERCLA section 104(c)(6),
when the remedial action has achieved
protective levels as set in the ROD, or
after 10 years, whichever is earlier. Of
course, if protective levels have not
been achieved by year 10, then it may be
appropriate for the state to continue the
operation of the treatment or other
restoration measures until the ground or
surface water is fully restored to levels
set out in the ROD.
EPA recognizes, however, that
performance of remedies for restoring
ground or surface waters can often only
be evaluated after the remedy has been
implemented and monitored for a period
of time. Further, some water treatment
systems may prove unable to meet
cleanup goals, and instead may merely
reach the point at which it is determined
that restoration to health based levels in
contaminant concentrations in the
ground or surface water is not
practicable. In such cases, it may be
necessary to amend the ROD and waive
certain ground or surface water
requirements. Alternatively, the RODs
may contemplate, as a contingency, that
it may not be technically practicable to
meet the specified levels, and thus set
-------
87AO Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
out alternative measures to be taken
under that contingency.
Performance evaluations should be
conducted one to two years after the
remedy is operational and functional, in
order to determine whether
modifications to the restoration action
are necessary. More extensive
performance evaluations should be
conducted at least every five years.
After evaluating whether cleanup levels
have been, or will be, achieved in the
desired time frame, the following
options should be considered: (1)
Discontinue operation; (2) upgrade or
replace the remedial action to achieve
the original remedial action objectives
or modified remedial action objectives;
and/or (3) modify the remedial action
objectives and continue remediation, if
appropriate.
6. Who operates the restoration
measures during 10-year period. One
commenter noted that CERCLA is
unclear on who will be responsible for
operating the remedial action measures
necessary during the restoration period
of up to 10 years, and believed that EPA
is responsible for implementing such
measures for EPA-lead sites. Another
commenter felt that states should decide
whether they have the capability and/or
interest in conducting operation and
maintenance, and felt that taking over
this O&M would be encouraged if
federal cost-share for O&M for up to ten
years is assured. One commenter argued
that section 104(c)(3)(A) of CERCLA,
which requires states to assure all future
maintenance of the removal and
remedial actions, means that the state
will assume the responsibility for
physically taking over the future
maintenance, not assume the
responsibility for all future maintenance
costs.
In response, CERCLA section 104(c){6)
defines treatment and other measures to
restore aquifers (for up to ten years) to
be "remedial action," not O&M.
Therefore, the costs of operating the
remedial action will be shared by EPA
and the state according to the
appropriate cost sharing provisions in
CERCLA section 104(c)(3). However.
states are encouraged to conduct such
action and may be funded through a
cooperative agreement for that portion
of remedial action required to restore
ground or surface water to levels which
assure protection of human health and
the environment (or 10 years, whichever
is earlier). Such management would
include performing any necessary
compliance or monitoring requirements.
The state is further encouraged to
provide necessary information to other
environmental programs when such
programs are interested in activities at a
Superfund site (e.g., providing
information on surface water discharges
to the appropriate water office or
agency).
Of course, after the restoration is
considered "complete," as discussed
above (at the latest, after 10 years), the
restoration activities become O&M, and
the states must assume responsibility for
the management of the restoration
activities, including the costs of that
O&M. This is consistent with the long-
standing policy that states are
responsible for all O&M costs. (See
preamble discussion below on "Sections
300.510(c) (1) and (2). State assurances.")
Final rule: Proposed S§ 300.5 and
300.435(f) are revised as follows:
1. EPA is revising the proposed rule's
definition of "source control remedial
action" and is adding a separate
definition for "source control
maintenance measures," as follows:
"Source control action" is the construction
or installation and start-up of those actions
necessary to prevent the continued release of
hazardous substances or pollutants or
contaminants (primarily from a source on top
of or within the ground, or in buildings or
other structures) into the environment.
"Source control maintenance measures"
are those measures intended to maintain the
effectiveness of source control actions once
such actions are operating and functioning
properly, such as the maintenance of landfill
caps and leachate collection systems.
2. In § 300.5, the definition of
"operation and maintenance" is
changed to refer to "measures" rather
than "activities," consistent with 40 CFR
part 35, subpart O:
"Operation and Maintenance" (O&M)
means measures required to maintain the
effectiveness of remedial response actions.
3. Section 300.435(f)(l) is revised as
follows to clarify the point at which
O&M measures are initiated:
Operation and maintenance (O&M)
measures are initiated after the remedy has
achieved the remedial action objectives and
remediation goals in the ROD, and is
determined to be operational and functional,
except for ground or surface water
restoration actions covered under
{ 300.435(f)(3). A state must provide its
assurance to assume responsibility for O&M,
including, where appropriate, requirements
for maintaining institutional controls, under
| 300.510(c).
4. A new $ 300.435(0(2) is added to
explain the use of the term "operational
and functional" in subsection (f)(l):
A remedy becomes "operational and
functional" either one year after construction
is complete, or when the remedy is
determined concurrently by the EPA and the
state to be functioning properly and is
performing as designed, whichever is earlier.
EPA may grant extensions to the one-year
period, as appropriate.
5. Proposed § 300.435(f)(2)
(renumbered as final § 300.435(f)(3)) is
revised to indicate that the restoration
period begins after the remedy is
operational and functional, consistent
with the discussion of O&M measures in
paragraph (f)(l). This section also
defines administrative "completion."
This revision also takes the place of
proposed paragraph (f)(4).
(3) For Fund-financed remedial actions
involving treatment or other measures to
restore ground or surface water quality to a
level that assures protection of human health
and the environment, the operation of such
treatment or other measures for a period of
up to 10 years after the remedy becomes
operational and functional will be considered
part of the remedial action. Activities
required to maintain the effectiveness of such
treatment or measures following the 10-year
period, or after remedial action is complete,
whichever is earlier, shall be considered
O&M. For the purposes of federal funding
provided under CERCLA section 104(c)(6), a
restoration activity will be considered
administratively "complete" when:
(i) Measures restore ground or surface
water quality to a level that assures
protection of human health and the
environment;
(ii) Measures restore ground or surface
water to such a point that reductions in
contaminant concentrations are no longer
significant; or
(iii) Ten years have elapsed, whichever ia
earliest.
6. Because the final NCP includes a
definition of "source control
maintenance measures," proposed
§ 300.435(f)(3)(i) (renumbered as final
§ 300.435(f)(4)j is revised to add the term
"measures" and to delete the phrase
"initiated to prevent contamination of
ground or surface water."
Name: Notification prior to the out-of-
state transfer of CERCLA wastes.
Policy: In response to the concerns of
a number of states and localities, EPA
has initiated a policy that prior to the
shipment of Superfund wastes to a
permitted waste management facility
out-of-state, the lead agency should
provide written notice to that state's
environmental officials. EPA believes
that such notice may be appropriate,
and that indeed, such notice may be
helpful in facilitating the safe and timely
accomplishment of Superfund waste
shipments. Notice should be provided
under this policy for all remedial actions
and non-time-critical removal actions
involving the out-of-state shipment of
Superfund wastes that are known to the
lead agency, including waste shipments
arising from Fund-lead responses, state-
lead responses, federal facility
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
responses and responses conducted by
PRPs (emergency and time-critical
removals are not covered by this policy).
This notification should specify the type
and quantity of waste involved, the
name and location of the receiving
facility and the expected schedule for
the transfer of the CERCLA waste. Such
notification will enable the recipient
state to obtain from its permitted
facilities any other information it may
need in order to support the out-of-state
action. Although this notification is
neither mandated by CERCLA nor
required by this regulation, EPA
believes that adherence to this
procedure will help to ensure that these
waste transfers occur in a safe and
expedient manner. The policy is
explained in more detail in OSWER
Directive No. 9330.2-07 (September 14,
1989}.
Because CERCLA actions may be
carried out under a number of
mechanisms and by a number of parties
(e.g., lead state agencies, other federal
agencies, PRPs), EPA plans to issue
additional guidance or regulations, if
appropriate, to implement this
notification policy.
Final rule: There is no rule language
on this issue.
Applicable or Relevant and Appropriate
Requirements
Introduction. The November 20,1985
revisions to the NCP required that, for
all remedial actions, the selected
remedy must attain or exceed the
federal applicable or relevant and
appropriate requirements {ARARs) in
environmental and public health laws. It
also required removal actions to attain
ARARs to the greatest extent
practicable, considering the exigencies
of the circumstances. The preamble to
the 1985 revisions to the NCP stated that
ARARs could be determined only on a
site-by-site basis, and it included from
EPA's October 2,1985 Compliance
Policy a list of potentially applicable or
relevant and appropriate requirements.
The preamble also provided a list of
federal non-promulgated criteria,
advisories and guidance, and state
standards "to be considered," called
TBCs. EPA also provided five limited
circumstances in which ARARs could be
waived.
On October 17.1986, CERCLA was
reauthorized with additional new
requirements. Section 121 of CERCLA
requires that, for any hazardous
substance that will remain on-site,
remedial actions must attain
requirements under federal
environmental or state environmental or
facility siting laws that are applicable or
relevant and appropriate under the
circumstances of the release or
threatened release at the completion of
the remedial action. The statute also
retained most of the waivers, with a few
additions.
Although section 121(d)(2) basically
codified EPA's 1985 policy regarding
compliance with other laws, the section
also requires that state standards are
also potential ARARs for CERCLA
remedial actions when they are
promulgated, more stringent than
federal standards, and identified by the
state in a timely manner.
Furthermore, the CERCLA
amendments provide that federal water
quality criteria established under the
Clean Water Act (CWA) and maximum
contaminant level goals (MCLGs)
established under the Safe Drinking
Water Act, must be attained when they
are relevant and appropriate under the
circumstances of the release.
Today's revision to the NCP continues
the basic concept of compliance with
ARARs for any remedy selected (unless
a waiver is justified). ARARs will be
determined based upon an analysis of
which requirements are applicable or
relevant and appropriate to the
distinctive set of circumstances and
actions contemplated at a specific site.
Unlike the 1985 revisions to the NCP.
where alternatives were developed
based on their relative attainment of
ARARs, in today's rule recognition is
given to the fact that ARARs may differ
depending on the specific actions and
objectives of each alternative being
considered (for more discussion of this
point, see preamble of proposal at 53 FR
51438, section 9).
In today's rule, EPA retains its policy
established in the 1985 NCP of requiring
attainment of ARARs during the
implementation of the remedial action
(where an ARAR is pertinent to the
action itself), as well as at the
completion of the action, and when
carrying out removal actions "to the
extent practicable considering the
exigencies of the situation."
For ease of identification, EPA divides
ARARs into three categories: chemical-
specific, location-specific, and action-
specific, depending on whether the
requirement is triggered by the presence
or emission of a chemical, by a
vulnerable or protected location, or by a
particular action. (More discussion of
these types can be found in the
preamble of the proposal at 53 FR 51437,
section 6).
Response to comments: EPA received
a few comments on general ARARs
policies. One commenter argued that the
remedial action should not necessarily
have to attain the most stringent
applicable or relevant and appropriate
requirement if a less stringent
requirement provides adequate
protection of human health and the
environment.
EPA disagrees. CERCLA requires that
remedial actions comply with all
requirements that are applicable or
relevant and appropriate. Therefore, a
remedial action has to comply with the
most stringent requirement that is ARAR
to ensure that all ARARs are attained.
In addition, CERCLA requires that the
remedies selected be protective of
human health and the environment and
attain ARARs. A requirement does not
have to be determined to be necessary
to be protective in order to be an ARAR.
Conversely, the degree of stringency of a
requirement is not relevant to the
determination of whether it is,an ARAR
at a site and must be attained (except
for state ARARs).
Another commenter asked for
confirmation that variance or exemption
provisions in a regulation can be
potential ARARs as well as the basic
standards. EPA agrees that meeting the
conditions and requirements associated
with a variance or exemption provision
can be a means of compliance with an
ARAR. For example, EPA expects that
CERCLA sites will frequently be
complying with the terms of the
treatability variance under the RCRA
land disposal restrictions (LDR) for soil
and debris when LDR is an ARAR.
Limitations in a regulation, such as the
quantity limitations that define small
quantity generators under RCRA and
affect what requirements a generator
must comply with, will also affect what
requirements are applicable at a
CERCLA site. However, it is possible
that a requirement could be relevant and
appropriate even though the requirement
is not applicable because of a limitation
in the regulation.
Indian tribe commenters contended
that ARARs should not be defined as
promulgated laws, regulations, or
requirements because some Indian tribe
laws, which could apply to a Superfund
cleanup, may not be promulgated in the
same fashion as state or federal laws.
CERCLA section 126 directs EPA to
afford Indian tribes substantially the
same treatment as states for certain
specified subsections of CERCLA
sections 103,104 and 105; EPA believes,
as a matter of policy, that it is similarly
appropriate to treat Indian tribes as
states for the purpose of identifying
ARARs under section 121(d)(2). EPA
realizes that tribal methods for
promulgating laws may vary, so any
evaluation of tribal ARARs will have to
-------
8742
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
be made on a case-by-case basis. Tribal
requirements, however, are still subject
to the same eligibility criteria as states,
as described in § 300.400(g)(4).
Another commenter disagreed with
EPA's position that environmental laws
do not apply to a CERCLA response
action unless incorporated by CERCLA
section 121(dJ. This commenter argued
that EPA has confused the ARARs
concept with one of preemption of state
law.
In response, SARA established a
process, in CERCLA sections 121(d)(2)
and (d)(4), for how federal and state
environmental laws should apply to on-
site CERCLA remedial actions, i.e., the
ARARs process. Based on these
provisions, CERCLA remedies will
incorporate (or waive) state standards,
as appropriate under CERCLA. Thus,
although other environmental laws do
not independently apply to CERCLA
response actions, the substantive
requirements of such laws will be
applied to such actions, consistent with
section 121(d) and NCP § 300.400(g).
EPA's interpretation that CERCLA
response actions are required to meet
state (and other federal) environmental
law standards only to the limited degree
set out in CERCLA is also necessary to
comply with the special mandates in
CERCLA to respond quickly to
emergencies, and to perform Fund-
balancing. The position that on-site
CERCLA response actions are not
independently subject to other federal or
stale environmental laws is a long-
standing one, based on a theory of
implied repeal or pre-emption. See, e.g.,
50 FR 47912, 47917-18 (Nov. 20, 1985); 50
FR 5862. 5865 (Feb. 12, 1985); "CERCLA
Compliance With Other Environmental
Laws" Opinion Memorandum, Francis S.
Blake, General Counsel, to Lee M.
Thomas, Administrator, Nov. 22,1985.
Following are summaries of major
comments and EPA's responses on
specific sections of the ARARs policy.
Name: Sections 300.5 and
300.400(g)(l). Definition of "applicable."
Proposed rule: "Applicable
requirements" means those cleanup
standards, standards of control, or other
substantive environmental protection
requirements, criteria, or limitations
promulgated under federal or state law
that specifically address a hazardous
substance, pollutant, contaminant,
remedial action, location, or other
circumstance at a CERCLA site. The
preamble to the proposed rule pointed
out that there is generally little
discretion in determining whether the
circumstances at a site match those
specified in a requirement (53 FR 51435-
37).
Response to comments: One
commenter suggested that language
used in § 300.400(g)(4) of the proposed
NCP which provides that "only those
state standards that are promulgated
and more stringent than federal
requirements may be applicable or
relevant and appropriate" be added to
the definition of ARARs found in
§ 300.5.
In response, EPA notes that the
definition it proposed already includes
the condition that standards, whether
federal or state, must be promulgated in
order to be potential ARARs. EPA
accepts this comment on stringency and
has revised both §§ 300.5 and 300.400(g)
to specify that in order to be considered
ARARs, state requirements must be
more stringent than federal
requirements. EPA notes that, in general,
state regulations under federally
authorized programs are considered
federal requirements.
A commenter supported the
discussion of ARARs in the preamble to
the proposed NCP, but remarked that
the definitions of ARARs do not
adequately reflect many of the
important aspects mentioned in the
preamble. EPA believes that the
definitions stated in the rule are
sufficiently comprehensive and that the
information contained in the preamble
to the proposed and final rules will help
the public in applying the definitions.
One commenter asked why EPA had
deleted rule language that applicable
requirements are those requirements
that would be legally applicable if the
response action were not undertaken
pursuant to CERCLA. In working with
this definition, EPA found the previous
definition confusing because it was
stated in the conditional, i.e.,
requirements that would apply if the
action were not under CERCLA. EPA
revised the definition to explain more
specifically what it means by applicable
requirements to avoid any confusion.
However, the 1985 wording is still a
correct statement of the applicability
concept. EPA is modifying the definition,
however, to make it clear that the
standards, etc. do not have to be
promulgated specifically to address
CERCLA sites.
Final rule: The proposed definition of
"applicable" in $ i 300.5 and
300.400(g)(l) are revised as follows:
1. Consistent with the language in
CERCLA section 121(d)(2), the
description of federal and state laws in
$ 300.5 is revised to read:
"* * * requirements, criteria or
limitations promulgated under federal
environmental or state environmental or
facility siting law * * * *"
[Comparable changes are made in
§§ 300.415(i), 300.430(e)(2)(i)(A),
300.430(e){9)(iii)(B) and
300.430(f)(l)(ii)(C).J
2. The following sentence is added to
§ 300.5: "Only those state standards that
are identified by a state in a timely
manner and that are more stringent than
federal requirements may be
applicable."
3. In §§ 300.5 and 300.400(g)(l), the
word "found" is added before "at a
CERCLA site."
Name: Sections 300.5 and
300.400(g)(2). Definition of "relevant and
appropriate."
Proposed rule: "Relevant and
appropriate requirements" means those
cleanup standards, standards of control,
and other substantive environmental
protection requirements, criteria, or
limitations promulgated under federal or
state law that, while not "applicable" to
a hazardous substance, pollutant,
contaminant, remedial action, location,
or circumstance at a CERCLA site,
address problems or situations
sufficiently similar to those encountered
at the CERCLA site that their use is well
suited to the particular site.
Section 300.400{g)(2) identified criteria
that must be considered, where
pertinent, to determine whether a
requirement addresses problems or
situations that are sufficiently similar to
the circumstances of the release or
remedial action that it is relevant and
appropriate. The preamble to the
proposed rule emphasized that a
requirement must be both relevant and
appropriate; this determination is based
on best professional judgment. Also, the
preamble stated that with respect to
some statutes or regulations, only some
of the requirements may be relevant and
appropriate to a particular site, while
others may not be (53 FR 51436-37).
Response to comments: 1. General.
Several commenters expressed support
in general for the revised definition of
relevant and appropriate requirements
and for the approach described in the
proposal to identifying such
requirements. Commenters in particular
supported statements that a requirement
must be both relevant, in that the
problem addressed by a requirement is
similar to that at the site, and
appropriate, or well-suited to the
circumstances of the release and the
site, to be considered a relevant and
appropriate requirement.
A few commenters recommended
changes to the definition of relevant and
appropriate requirements. One
commenter suggested adding to the
proposed definition that a relevant and
appropriate requirement must be
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
87A3
"generally pertinent," a phrase used in
the preamble of the proposed NCP in
discussing the analysis of the relevance
of a requirement, while another
suggested adding "pertinent" to the
circumstances of the site, expressing
concern that "generally pertinent" was
overly broad. EPA believes that the
concept of "pertinence" is adequately
considered as part of the evaluation of
what is relevant and appropriate (see
discussion of factors for determining
relevant and appropriate requirements,
below). EPA does not believe that the
suggested changes should be made in
the definition itself.
Another commenter suggested
revising the definition to emphasize the
jurisdictional prerequisites of a
potentially relevant and appropriate
requirement, recommending that a
relevant and appropriate requirement be
defined as one that, "while not
applicable, sufficiently satisfies the
jurisdictional prerequisites for legal
enforceability." EPA disagrees, because
the jurisdictional prerequisites, while
key in the applicability determination,
are not the basis for relevance and
appropriateness. Rather, the evaluation
focuses on the purpose of the
requirement, the physical characteristics
of the site and the waste, and other
environmentally- or technically-related
factors.
Another commenter objected to the
policy that some portions of a regulation
could be found relevant and
appropriate, while other portions would
not be. The commenter believed that
this policy would lead to confusion and
inconsistency, although the commenter
agreed that the application of this policy
to RCRA closure requirements,
described in the proposal, was useful.
EPA believes that this policy is
appropriate and reflects its experience
in evaluating RCRA closure
requirements and other requirements as
relevant and appropriate. Finding some
parts of a regulation relevant and
appropriate, and others not, allows EPA
to draw on those standards that
contribute to and are suited for the
remedy and the site, even though all
components of a regulation are not
appropriate.
This approach has been particularly
valuable as applied to RCRA closure,
where the two applicable regulations,
clean closure and landfill closure,
address only the two poles of a potential
continuum of closure responses. When
RCRA closure is relevant and
appropriate, Superfund may use a
combination of these two regulations,
known as hybrid closure, to fashion an
appropriate remedy for a site that is
protective of both ground water and
direct contact (for more discussion of
hybrid closure, see preamble to the
proposed NCP at 53 FR 51446).
2. Factors for determining relevant
and appropriate requirements. One
commenter suggested referencing the
criteria described in § 300.400(g)(2) in
the definition. EPA believes this is not
appropriate because it could lead to
confusion about the role of the criteria
and result in greater emphasis on rigidly
applying the criteria than is warranted.
Based on this latter comment and
others about specific criteria in the
proposal, EPA wants to clarify the role
of the factors. (Note that the rule now
refers to "factors" rather than
"criteria.") EPA intends that the factors
in § 300.400(g)(2) should be considered
in identifying relevant and appropriate
requirements, but does not want to
imply that the requirement and site
situation must be similar with respect to
each factor for a requirement to be
relevant and appropriate. At the same
time, similarity on one factor alone is
not necessarily sufficient to make a
requirement relevant and appropriate.
Rather, the importance of a particular
factor depends on the nature of the
requirement and the site or problem
being addressed and will vary from site
to site. While the factors are useful in
identifying relevant and appropriate
requirements, the final decision is based
on professional judgment about the
situation at the site and the requirement
as a whole.
In addition, as EPA discussed in the
proposal, a requirement must be both
"relevant," in that it addresses similar
situations or problems, and
"appropriate," which focuses on
whether the requirement is well-suited
to the particular site. Consideration of
only the similarity of certain aspects of
the requirement and the site situation
constitutes only half of the analysis of
whether a requirement is relevant and
appropriate.
After review of comments it received,
EPA has revised the language in
{ 300.400(g)(2) because it is concerned
that it was misleading. Some
commenters viewed the analysis
required by this section as requiring
consideration only of the similarity of
the requirement and the problems or
situation at the CERCLA site. While
non-substantive for the most part, the
changes to J 300.400(g)(2) make clearer
that a requirement and a site situation
must be compared, based on pertinent
factors, to determine both the relevance
and appropriateness of the requirement.
The rule also now uses the term
"factors," rather than "criteria," a
change instituted to avoid confusion
with the nine criteria for remedy
selection in § 300.430.
One commenter suggested that factors
be developed for use in evaluating
whether a requirement is "appropriate."
EPA does not believe this is necessary.
Decisions about the appropriateness of
a requirement are based on site-specific
judgments using the same set of factors
already identified. In the abstract it is
very difficult to separate out those
factors to be considered for relevance
and those to be considered for
appropriateness. In specific cases it
would be possible to say, for example,
that a requirement is relevant in terms
of the substances but not appropriate in
terms of the facility covered.
Several commenters questioned
whether certain factors could
legitimately be considered in identifying
relevant and appropriate requirements.
These and other comments on individual
factors are discussed below; a brief
description of each factor as described
in the proposed NCP is given after the
name of the factor.
(i): Purpose of the requirement. This
factor compared the purpose of a
requirement to the specific objectives of
the CERCLA action. One commenter
was concerned that the "objectives for
the CERCLA action" could include the
implementability of the remedy, its cost,
and even the acceptability of the action
to the community. This is not what EPA
meant by "objectives." Rather, EPA
intended that this factor consider the
technical, or health and environmental
purpose of the requirement compared to
what the CERCLA action is trying to
achieve. For example, MCLs are
promulgated to protect the quality of
drinking water; this is similar in purpose
to a CERCLA action to restore ground
water aquifers to drinkable quality. To
avoid confusion, EPA has simplified the
factor, which now states, "the purpose
of the requirement and the purpose of
the CERCLA action."
(ii): The medium regulated by the
requirement. This factor compared the
medium addressed by a requirement to
the medium contaminated or affected at
a CERCLA site. No comments were
received on this factor, and the final rule
is essentially unchanged from the
proposal.
(Hi): The substances regulated by the
requirement. This factor compared the
substances addressed by a requirement
to the substances found at a CERCLA
site. Several commenters argued that
RCRA requirements for hazardous
waste should not be potentially relevant
and appropriate to wastes "similar" but
not identical to a hazardous waste, and
-------
8744
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
that this criterion should be dropped.
EPA disagrees and has discussed this
issue in the section of this preamble on
RCRA ARARs.
(iv): The entities or interests affected
or protected by the requirement. This
factor compared the entities or interests
addressed by a requirement and those
affected by a CERCLA site. Two
commenters expressed concern about
this factor. One commenter was
concerned that it could be used to
disqualify standards from being relevant
and appropriate simply because the
requirement regulated entities different
from those at a CERCLA site. In
contrast, another commenter was
concerned that EPA would broadly
apply requirements to entities that were
never intended to be subject to the
requirement. EPA agrees that this factor
is confusing. EPA believes that the
characteristics intended to be addressed
by this factor are adequately covered
under other factors, such as purpose and
type of facility. Therefore, this factor
has been eliminated.
(v): The actions or activities regulated
by the requirement. This factor
compared the actions or activities
addressed by a requirement to those
undertaken in the remedial action at a
CERCLA site. No comments were
received on this factor, and the final rule
is essentially unchanged from the
proposal.
(vi): Any variances, waivers, or
exemptions of the requirement. This
factor considered the availability of
variances, waivers, or exemptions from
a requirement that might be available
for the CERCLA site or action. One
commenter asked for clarification on
this factor and expressed his view that
the CERCLA waiver provisions for
ARARs were the only waivers
allowable. However, EPA believes that
it is reasonable to consider the
existence of waivers, exemptions, and
variances under other laws because
generally there are environmental or
technical reasons for such provisions.
These provisions are generally
incorporated into national regulations
because there are specific circumstances
where compliance with a requirement
may be inappropriate for technical
reasons or unnecessary to protect
human health and the environment.
Again, this factor is only one that should
be considered; even if a waiver
provision in a requirement matches the
circumstances at the CERCLA site, there
may be other reasons why the
requirement is still relevant and
appropriate.
(vii): The type and size of structure or
facility regulated by the requirement.
This factor compared the characteristics
of the structure or facility addressed by
a requirement to that affected by or
contemplated by the remedial action.
One commenter argued that regulations
routinely contain cut-offs based on type
or size of the structure or facility for
administrative or enforcement
convenience. EPA agrees that cut-offs
based solely on administrative reasons
may not be critical in determining
whether a requirement is relevant and
appropriate. However, EPA believes
that it is necessary and appropriate to
consider the physical type or size of
structure regulated because
requirements may be neither relevant
nor appropriate to structures or facilities
that are dissimilar to those that the
requirement was intended to regulate. In
many cases, this factor is a very basic
one: in identifying requirements relevant
to landfills, one would turn to standards
for landfills, not for tanks.
(viii): Consideration of use or
potential use of affected resources in the
requirement. This factor compared the
resource use envisioned in a
requirement to the use or potential use
at a CERCLA site. One commenter
objected to this factor based primarily
on opposition to EPA's proposed ground
water policy, which, along with the
comments EPA has received on this
issue, is discussed in the section on
ground-water policy in the preamble
discussion of § 300.430. EPA believes it
is appropriate to compare the resource
use considerations in a requirement with
similar considerations at a CERCLA
site.
Final rule: 1. The following sentence is
added to the proposed definition of
"relevant and appropriate" in § 300.5
(see preamble discussion above on
"applicable"): "Only those state
standards that are identified by a state
in a timely manner and that are more
stringent than federal requirements may
be relevant and appropriate."
2. Proposed § 300.400(g)(2) is revised
as follows:
(2] If, based upon paragraph (g)(l) of this
section, it is determined that a requirement is
not applicable to a specific release, the
requirement may still be relevant and
appropriate to the circumstances of the
release. In evaluating relevance and
appropriateness, the factors in paragraphs
(g)(2)(i) through (viii) shall be examined,
where pertinent, to determine whether a
requirement addresses problems or situations
sufficiently similar to the circumstances of
the release or remedial action contemplated,
and whether the requirement is well-suited to
the site, and therefore is both relevant and
appropriate. The pertinence of each of the
following factors will depend, in part, on
whether a requirement addresses a chemical,
location, or action. The following
comparisons shall be made, where pertinent,
to determine relevance and appropriateness:
(i) The purpose of requirement and the
purpose of the CERCLA action;
(ii) The medium regulated or affected by
the requirement and the medium
contaminated or affected at the CERCLA site;
(iii) The substances regulated by the
requirement and the substances found at the
CERCLA site;
(iv) The actions or activities regulated by
the requirement and the remedial action
contemplated at the CERCLA site;
(v) Any variances, waivers, or exemptions
of the requirement and their availability for
the circumstances at the CERCLA site;
(vi) The type of place regulated and the
type of place affected by the release or
CERCLA action;
(vii) The type and size of structure or
facility regulated and the type and size of
structure or facility affected by the release or
contemplated by the CERCLA action;
(viii) Any consideration of use or potential
use of affected resources in the requirement
and the use or potential use of the affected
resource at the CERCLA site.
Name: Section 300.400(g)(3). Use of
other advisories, criteria or guidance to-
be-considered (TBC).
Proposed rule: The preamble to the
proposed rule provided that advisories,
criteria or guidance to-be-considered
(TBC) that do not meet the definition of
ARAR may be necessary to determine
what is protective or may be useful in
developing Superfund remedies (53 FR
51436). The ARARs preamble described
three types of TBCs: health effects
information with a high degree of
credibility, technical information on how
to perform or evaluate site
investigations or remedial actions, and
policy.
For example, proposed § 300.400(g)(3)
stated that other advisories, criteria, and
guidance to be considered (TBCs) shall
be identified, as appropriate, because
they may be useful in developing
CERCLA remedies. Proposed
§ 300.415(j)(§ 300.415(i) in the final rule)
stated that other federal and state
criteria, advisories, and guidance shall,
as appropriate, be considered in
formulating the removal action.
Proposed § 300.430(b) stated that during
project scoping the lead agency shall
initiate a dialogue with the support
agency on potential ARARs and TBCs.
Proposed § 300.430(e)(2) provided that
other pertinent information may be used
to develop remediation goals. Proposed
S 300.430(e)(8) provided that the lead
agency shall notify the support agency
of the alternatives to be analyzed to
facilitate the identification of ARARs
and TBCs. Proposed S 300.430(f) on
selecting a remedy, however, referred to
compliance with ARARs only, not TBCs.
Proposed subpart F required that the
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
lead and support agencies timely
identify ARARs and TBCs during the
remedial process.
Response to comments: Several
commenters requested that the category
of "TBCs" be eliminated entirely.
Commenters argued that the use of
TBCs is not authorized by CERCLA, that
this category of information is too
broadly defined or open-ended, and that
references to TBCs in the NCR mandate
consideration of a seemingly limitless
category of information. One commenter
was concerned that by selecting a health
effect assessments as a TBC candidate,
the precedent for imposition of this TBC
for all sites would be set and may drive
remediation costs beyond cost-
effectiveness. Some commented that
using TBCs in the remedy selection
process will lead to much confusion,
uncertainty, and delay. Also,
commenters suggested that the use of
TBCs could lead to lengthy disputes or ,
litigation.
Other commenters contended that the
broad definition of TBCs will give lead
agencies too much discretion when
considering information and determining
cleanup levels. A commenter stated that
wide discretion could produce
inconsistent selection of cleanup goals.
Several commenters argued that TBCs
have been given ARAR-like status in the
NCP because the proposal requires that
lead and support agencies shall identify
ARARs and TBCs during the remedial
process. A commenter noted that the
proposal requires identification of TBCs
even when ARARs have been identified,
adding an additional layer of regulatory
activity not authorized by CERCLA.
Another commenter stated that the
proposed rule does not even require
TBCs to be relevant and appropriate.
One commenter stated that the proposal
requires that TBCs be identified for
remedial actions but does not specify
what is to be done with them.
Commenters raised due process
concerns, arguing that, unlike ARARs,
TBCs are not legally promulgated and
may not have been subjected to public
or technical review and comment.
Commenters suggested that TBCs are
unnecessary for establishing
contaminant levels because such levels
can be determined by regulations or
during risk assessments. A commenter
proposed that site-specific risk-based
remediation levels should be used.
Another commenter asserted that TBCs
are appropriate for use as general
guidelines, but not as requirements. The
TBCs listed in the preamble often are
not subjected to thorough technical
review and are inappropriate for use as
substitutes for ARARs.
If EPA retains TBCs in the NCP,
commenters suggested that the category
be more specifically defined and
referred to as helpful reference
information only, or used on a voluntary
basis. A commenter suggested that, if
TBCs are retained, references to their
identification and consideration be
permissive, not mandatory (e.g., "may,
as appropriate, identify TBCs * * *"
rather than "shall identify
TBCs * * *"}. A commenter argued that
EPA should state that remedies selected
through the use of TBCs must be cost-
effective, and that TBCs may be used
only if the remedy selected falls within
the acceptable risk range.
Commenters argued that if EPA uses
TBCs to determine cleanup levels, PRPs
must be provided with an opportunity to
challenge their use. A commenter
suggested that the preamble clarify that
requirements more stringent than
ARARs can be imposed only if ARARs
are not protective of human health and
the environment.
Some commenters requested
clarification that requirements existing
under Indian tribe law and enforced as a
matter of tribal law should be
considered ARARs rather than TBCs.
On the other hand, one commenter
argued that some TBCs should be given
the same status as ARARs. The
commenter explained that most states
have ARARs for determining ground and
surface water cleanup levels, but
promulgated standards for soil cleanup
are largely unavailable. The commenter
suggested that state policies used to
determine guidance values, criteria or
standards should be given the same
status as ARARs, even if not
promulgated, as long as they are used
consistently within a state.
In response, EPA believes it is
necessary to clarify how it intends TBCs
to be used. As a first matter, EPA agrees
with commenters that TBCs should not
be required as cleanup standards in the
rule because they are, by definition,
generally neither promulgated nor
enforceable so they do not have the
same status under CERCLA as do
ARARs. TBCs may, however, be very
useful in helping to determine what is
protective at a site, or how to carry out
certain actions or requirements.
Because ARARs do not exist for every
chemical or circumstance likely to be
found at a Superfund site, EPA believes
it may be necessary when determining
cleanup requirements or designing a
remedy to consult reliable information
that would not otherwise be considered
to be a potential ARAR. For example,
when an MCLG or MCL does not exist
for a particular contaminant, EPA
. intends that the lead or support agency
use EPA-developed toxicity information
such as cancer potency factors and
reference doses for noncarcinogenic
effects when developing preliminary
remediation goals. Also, many action-
specific ARARs have broad
performance criteria. The technical
information on how to implement such
criteria may be contained in guidance
documents only. The lead or support
agency may need to consider these
guidance documents in determining how
to comply with the ARAR. Also, the lead
or support agency may want to consider
policy statements contained in
advisories, criteria, or guidance when
selecting or designing a remedy.
Accordingly, even though the use of
TBCs is not specifically discussed in
CERCLA, EPA believes that their use is
consistent with the statutory
requirements to protect human health
and the environment and to comply with
ARARs. This opportunity to consider
TBCs applies to both removal and
remedial actions.
EPA recognizes, as the commenters
point out, that, unlike ARARs, the
identification and communication of
TBCs should not be mandatory. EPA has
revised the NCP references to TBCs to
make it clear that they are to be used on
an "as appropriate" basis. EPA believes
that TBCs are meant to complement the
use of ARARs by EPA, states, and PRPs,
not to be in competition with ARARs.
In response to other comments, even
when TBCs are used, the requirements
imposed on the remedy, including that it
be cost-effective, still apply. Moreover, a
PRP can comment on information
derived from TBCs, including the
reliability and validity of a TBC itself,
when it submits comments on the
proposed plan. PRP challenges to the
use of TBCs are not precluded by EPA's
TBC policy because PRPs may still
assert in their comments that, in a
particular instance, the lead agency's
consideration of TBCs in determining
remediation goals and objectives is not
appropriate or consistent with
CERCLA's mandates that remedies
protect human health and the
environment and be cost-effective.
Further, EPA does not agree that the
use of TBCs will necessarily lead to
inconsistent selection of cleanup goals.
Better consistency may in fact be
achieved if all lead agencies use EPA-
developed toxicity information for
contaminants for which a standard has
not yet been developed. Finally, Indian
tribal laws may be potential ARARs
when they meet the requirements for
state ARARs {see introductory preamble
section on ARARs, above).
-------
87A6 Federal Register / Vol. 55. No. 46 / Thursday, March 6. 1990 / Rules and Regulations
Final rule: References to TBCs will be
changed in the following sections to
make it clear that their use is
discretionary rather than mandatory:
5§ 300.400{g}(3), 300.415(i), 300.430(b)(9),
300.430(d)(3), 300.430(e) (8) and (9),
300.505{d)(2pi), 300.515(d) and (d) (1)
and (2), and 300.515(h)(2).
Name: Sections 300.400 (g)(4) and
(g){5). ARARs under state laws.
Proposed rule: Section 300.400(g)
specified that only promulgated state
standards may be considered potential
ARARs. A promulgated state standard
must be legally enforceable and of
general applicability. The term "legally
enforceable," according to the preamble
to the proposed NCP, means that state
laws or standards which are considered
potential ARARs must be issued in
accordance with state procedural
requirements and contain specific
enforcement provisions or be otherwise
enforceable under state law. The
preamble also explained that "of general
applicability" means that potential state
ARARs must be applicable to all
remedial situations described in the
requirement, not just CERCLA sites (53
FR 51437-38).
The preamble also discussed a
dispute resolution process to be
followed if there is disagreement about
the identification of ARARs, as well as
policies to be followed if a state insists
that a remedy attain a requirement not
determined to be ARAR (see 53 FR
51437 and 51457).
Response to comments: Commenters
on this subject called for EPA to
establish a formal procedure to be
followed by states to demonstrate that
proposed state ARARs are legally
enforceable and of generally
applicability. Commenters suggested
that states be required to provide legal
citations from appropriate sections of
state laws, as well as appropriate
citations to legal authority for issuing
compliance orders, obtaining
injunctions, or imposing civil or criminal
penalties in the event of noncompliance.
These citations, according to
Commenters, would demonstrate that
proposed ARARs are legally
enforceable.
Commenters suggested that general
applicability could be demonstrated by
requiring states to identify the
chemicals, locations, and cleanup
actions to which a proposed ARAR
would apply.
The proposed NCP did not prescribe a
specific procedure to be used in
evaluating state standards as potential
ARARs. A formal process for
demonstrating that state requirements
are promulgated is not required by
CERCLA. EPA believes that the
imposition of a formal procedure on
states would be a large administrative
burden and could impede the cleanup
process.
EPA expects, however, that states will
substantiate submissions of potential
ARARs by providing basic evidence of
promulgation, such as a citation to a
statute or regulation and, where
pertinent, a date of enactment, effective
date, or description of scope. Because a
citation is the minimum needed to
positively identify a requirement, EPA
has added regulatory language requiring
both lead and support agencies to
provide citations when identifying their
ARARs.
Section 300.400(g)(4) specifies that
only promulgated state standards that
are more stringent than federal
requirements and are identified by the
state in a timely manner may be
considered potential ARARs. If a
question is raised as to whether a
requirement identified by a state
conforms to the requirements for being a
potential state ARAR, or is challenged
on the basis that it does not conform to
the definition, the state would have the
burden of providing additional evidence
to EPA to demonstrate that the
requirement is of general applicability,
is legally enforceable, and meets the
other prerequisites for being a potential
ARAR. If EPA does not agree that a
state standard identified by a state is an
ARAR, EPA will explain the basis for
this decision.
Furthermore, the language of CERCLA
section 121(d)(2)(A) makes clear, and
program expediency necessitates, that
the specific requirements that are
applicable or relevant and appropriate
to a particular site be identified. It is not
sufficient to provide a general "laundry"
list of statutes and regulations that
might be ARARs for a particular site.
The state, and EPA if it is the support
agency, must instead provide a list of
requirements with specific citations to
the section of law identified as a
potential ARAR, and a brief explanation
of why that requirement is considered to
be applicable or relevant and
appropriate to the site.
Other comments on this section raised
objections to EPA's acceptance of
general goals as potential ARARs. One
commenter questioned whether such
general goals were implementable and
satisfied the requirements of a
promulgated standard, requirement,
criteria, or limitation contained in
CERCLA section 121(d). Another
commenter argued that attempts to
interpret compliance with a general goal
will lead to confusion and delay. Several
commenters requested clarification of
the status of state nondegradation goals
and whether such goals qualified as
potential ARARs.
In response, it is necessary to
examine the nature of a general goal in
order to determine whether it may be an
ARAR. General goals that merely
express legislative intent about desired
outcomes or conditions but are non-
binding are not ARARs. EPA believes,
however, that general goals, such as
nondegradation laws, can be potential
ARARs if they are promulgated, and
therefore legally enforceable, and if they
are directive in intent. The more specific
regulations that implement a general
goal are usually key in identifying what
compliance with the goal means.
For example, in the preamble to the
proposed NCP, EPA cited the example of
a state antidegradation statute that
prohibits the degradation of surface
water below a level of quality necessary
to protect certain uses of the water body
(53 FR 51438). If promulgated, such a
requirement is clearly directive in nature
and intent. State regulations that
designate uses of a given water body
and state water quality standards that
establish maximum in-stream
concentrations to protect those uses
define how the antidegradation law will
be implemented are, if promulgated, also
potential ARARs.
Even if a state has not promulgated
implementing regulations, a general goal
can be an ARAR if it meets the
eligibility criteria for state ARARs.
However, EPA would have considerable
latitude in determining how to comply
with the goal in the absence of
implementing regulations. EPA may
consider guidelines the state has
developed related to the provision, as
well as state practices in applying the
goal, but such guidance or documents
would be TBCs, not ARARs.
Final rule: 1. EPA has revised
5 300.400(g)(4) as follows:
(4) Only those state standards that are
promulgated, are identified by the state in a
timely manner, and are more stringent than
federal requirements may be applicable or
relevant and appropriate. For purposes of
identification and notification of promulgated
state standards, the term "promulgated"
means that the standards are of general
applicability and are legally enforceable.
2. Also, language has been added to
S 300.400(g)(5) requiring that specific
requirements for a particular site be
identified as ARARs, and that citations
be provided.
Name: Section 300.515(d)(l). Timely
identification of state ARARs.
Proposed rule: Section 300.515(d)(l)
stated that the lead and support
agencies shall identify their respective
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations 87A7
ARARs (and may identify TBCs) and
communicate them to each other in a
timely manner such that sufficient time
is available for the lead agency to
incorporate all potential ARARs and
TBCs without inordinate delay and
duplication of effort.
Section 300.515td}(2) provided that a
SMOA may specify timeframes for
identification of ARARs and TBCs. In
the absence of a SMOA, § 300.515(h}(2)
provided that the lead and support
agencies shall discuss potential ARARs
and TBCs during the scoping of the RI/
FS. This section also required the
support agency to communicate in
writing potential ARARs to the lead
agency within 30 working days of the
receipt of a request from the lead agency
for potential ARARs at two steps in the
process: no later than when site
characterization data are available, and
prior to the initiation of the comparative
analysis. The preamble to the proposed
rule (53 FR 51438) explained that
different types of ARARs can be
identified at various points in the RI/FS
process: chemical-specific and location-
specific ARARs after site
characterization, and action-specific
ARARs after development of
alternatives.
Response to comments: Several
commenters argued that even states
with SMOAs should be required to
identify potential ARARs within 30
working days of the receipt of a request
from the lead agency. EPA believes,
however, that it is appropriate to allow
the timeframes for identification of
potential ARARs to be negotiated as
part of a SMOA, and therefore does not
agree with this comment.
The purpose of the SMOA is for EPA
and a state to agree on their respective
roles and responsibilities during EPA-
lead and state-lead response actions. A
mutually acceptable timeframe for
identifying ARARs is certainly an
important component of the decision-
making process. Such discussion may
also lead to agreement on other
important ARARs coordination issues
such as the appropriate EPA/state
management staff level for
communication of ARARs.
One commenter stated that the 30-day
requirement is too short, especially for
Indian tribes who may not have well-
developed systems for identifying and
compiling tribal laws. Another
commenter suggested that states be
given a minimum of 20 working days to
respond to a request for ARARs to
account for numerous levels of authority
involved in the response. Based on
program experience, EPA believes a
period of 30 working days is appropriate
for a support agency to respond to a
lead agency request for ARARs in the
absence of a negotiated timeframe in a
SMOA. The necessity for a longer
period should be agreed upon during
SMOA negotiations.
Commenters suggested that the
discussion of timely identification of
ARARs be revised to allow for ARARs
identified after the signing of the ROD to
be considered legally equivalent to
ARARs identified prior to ROD signing.
Commenters pointed out that many
potential action-specific ARARs cannot
be identified until the remedial design
phase, which occurs after ROD signing.
EPA believes that remedial actions
should be required to comply with
ARARs identified by the lead and
support agencies before the ROD is
signed and should not be required to
comply with ARARs identified after that
time, provided such ARARs could have
been identified before the ROD was
signed. However, if a component of a
remedy is not identified at the time of
ROD signing, requirements in effect
when the component is later identified
(e.g., during remedial design) will be
used to determine ARARs. In addition,
remedies will comply with requirements
promulgated after ROD signature if
necessary to maintain protectiveness
(these issues are discussed in greater
detail below in the section on
"Consideration of newly promulgated or
modified requirements.")
Final rule: EPA is promulgating the
rule as proposed except that references
to TBCs have been modified (see
preamble section on TBCs).
Name: Section 300.430(f)(l)(ii)(C).
Circumstances in which ARARs may be
waived.
Introduction: CERCLA reauthorization
modified somewhat the 1985 NCP's five
circumstances in which a specific ARAR
need not be attained. Four of the original
waivers were essentially codified, and
two new waivers added (equivalent
standard of performance and
inconsistent application of state
requirements). These waivers, which by
statute apply to on-site remedial
activities, must be invoked for each
ARAR that will not be attained; the
waivers apply only to attainment of
ARARs and not to any other CERCLA
statutory requirements for remedial
actions, such as protection of human
health and environment. Since today's
rule also requires removal actions to
comply with ARARs to the extent
practicable, these waivers are also
available for removals, as discussed in
the preamble for 5 300.415(i).
Proposed rule: The proposed NCP
revisions essentially incorporated the
statutory language of the waivers in the
rule without amplification or significant
modification in proposed
I 300.430(f)(3)(iv) (renumbered as final
§ 300.430(fj(l)(ii)(C)). The preamble to
the proposal did, however, discuss
criteria and circumstances under which
the waivers might be invoked (53 FR
51438).
Each waiver is discussed below in
terms of the proposed criteria,
comments on the criteria, and EPA's
response to comments. Unless explicitly
stated otherwise, the criteria under each
waiver may be presumed to remain the
same as described in the preamble to
the proposed rule.
Response to comments: Two general
comments were made about use of
waivers. One commenter suggested that
the probability of exposure be allowed
as grounds for a waiver; for example,
the low probability of exposure at a
remote site would allow an ARAR such
as for drinking water levels in
groundwater to be waived. EPA does
not believe that there is authorization to
use exposure probability as grounds for
a waiver. Exposure probability may
suggest what standards have to be
attained (as with groundwater that may
be used for drinking), but cannot exempt
a CERCLA response from what would
otherwise be ARAR.
Another commenter suggested that
waivers be interpreted broadly and used
more frequently to expedite response
and conserve the Fund. The commenter
gave as an example waiving MCLs for
Class II groundwater that is not likely to
be used for drinking water. EPA
acknowledges that waivers of ARARs
may be used more frequently in the
future as more experience is gained
about the practicability of remedies, the
nature of state requirements, etc.
However, EPA may invoke waivers only
when appropriate under the terms of the
statute, and not simply when it might be
desirable to expedite an action. EPA
also notes that a specific waiver is
available to help conserve the Fund.
Final rule: EPA is promulgating the
rule as proposed.
Name: Section 300.430(f)(l)(ii)(C)(J).
Interim measures.
Proposed rule: This waiver is intended
for interim measures which by their
temporary nature do not attain all
ARARs. The criteria proposed were that
an interim measure for which this
waiver is invoked should be followed
within a reasonable time by complete
measures that attain ARARs, and that
the interim measure should not
exacerbate site problems nor interfere
with the final remedy (53 FR 51438-39).
-------
8748 Federal Register / Vol. 55, No. 46 / Thursday. March 8, 1990 / Rules and Regulations
Response to comments: One
commenter stated that EPA should
define the term, "reasonable time," to
put a limit on the amount of time
between an interim measure and
completion. The commenter was
concerned that the waiver could be used
to delay completion of a remedial action
unless a time limit, such as 3 years, is
imposed. EPA believes that putting a
specific time limit as a pre-condition for
invoking this waiver is impractical
because it is difficult to predict exactly
when complete measures can be
undertaken, given changes in funding,
priorities, and other factors.
Another commenter advised that this
waiver should not be used to impose
needless, duplicative costs in
remediation by requiring unnecessary
interim steps. EPA agrees that interim
actions should be consistent with a final
remedy to the extent the latter can be
anticipated. This point is addressed in
part by the criterion that the interim
measure should not interfere with the
final remedy.
Final rule: EPA is promulgating the
rule as proposed.
Name: Section 300.430(f)(l)(ii)(C)(2).
Greater risk to health and the
environment.
Proposed rule: This waiver is intended
for ARARs whose implementation will
cause greater risk to human health and
the environment than non-compliance.
The criteria proposed for this waiver
included magnitude, duration, and
reversibility of adverse impacts due to
compliance with an ARAR compared to
a remedy not complying with that ARAR
(53 FR 51439).
Response to comments: Commenters
did not specifically disagree with the
criteria. One commenter advised caution
in invoking this waiver because of the
uncertainties in accurately assessing
risks and the delays that could ensue
from disagreements about these risks.
The commenter also said that full public
input should be sought before invoking
this waiver. In response, EPA notes that
public input is required through the
proposed plan, which must describe use
of a waiver. EPA agrees that risk
assessment has uncertainties, but
believes that careful assessments that
reveal greater risks from compliance
with ARARs may be grounds for using
this waiver.
Another commenter objected to the
preamble discussion for suggesting that
the alternative to which compliance
with an ARAR is compared is limited to
a "no-action" alternative. While the
examples provided perhaps suggest that
the alternative might have been no
action (as with PCB contamination),
EPA certainly does not intend that the
alternative to which a potentially high
risk remedy is compared must be the no-
action alternative. As with the example
of excavation, there may be other active
measures such as capping which can be
taken if the ARAR-compliant remedy
poses unacceptably high risks.
Final rule: EPA is promulgating the
rule as proposed.
Name: Section 300.430(f)(l)(ii)(C)(.?).
Technical impracticability.
Proposed rule: This waiver is intended
when compliance with an ARAR is not
technically practicable from an
engineering perspective. The criteria
proposed for this waiver included
engineering feasibility and reliability,
with cost generally not a major factor
unless compliance would be
inordinately costly. Both standard and
innovative technologies should be
considered before invoking this waiver
(53 FR 51439).
Response to comments: Several
commenters addressed the issue of cost.
Some asserted that cost has no role in
determining technical practicability, and
should be dropped from consideration.
Others stated that cost should play a
more explicit role by being one of the
criteria (along with feasibility and
reliability). EPA believes that cost
should generally play a subordinate role
in determining practicability from an
engineering perspective. Engineering
practice is in reality ultimately limited
by costs, hence cost may legitimately be
considered in determining what is
ultimately practicable. On the other
"hand, if cost were & key criterion in
determining the practicability of an
ARAR, ARARs would likely be
subjected to a cost-benefit analysis
rather than a test of true practicability.
One commenter argued that the
waiver should be invoked even when an
innovative technology is available that
may achieve an ARAR unless EPA
presents evidence that the technology
will be reliable and effective. In the
proposal EPA stated that the technical
impracticability waiver should not be
used where either existing or innovative
technologies can reliably, logically, and
feasibly attain the ARAR. Innovative
technologies are encouraged by the
statute and, in accordance with criteria
presented elsewhere in the rule, should
be employed to attain ARARs where
appropriate; the burden of presenting
information on such technologies would
be on the PRP, not EPA.
One commenter suggested that this
waiver should be granted for any
carcinogen with an MCLG of zero. The
role of MCLGs and MCLs is discussed
below in today's preamble. EPA notes
that because elimination of
contamination to a level of zero is
infeasible, this waiver would probably
have to be invoked where an ARAR is
zero.
Final rule: EPA is promulgating the
rule as proposed.
Name: Section 300.430(f)(l)(ii)(C)(4).
Equivalent standard of performance.
Proposed rule: This waiver is intended
where the standard of performance of a
requirement can be equaled or exceeded
through another method. The criteria
proposed included degree of protection,
level of performance, reliability into the
future, and time required for results (53
FR 51439-40).
Response to comments: Several
commenters maintained that a broader
interpretation of the waiver should be
used than that proposed by EPA.
Specifically, they argued for a case-by-
case analysis of concentrations at
realistic points of exposure as the best
measure of equivalent performance. In
other words, they would use an
evaluation of exposure risk as the
measure of equivalent performance,
allowing an entirely different remedial
approach than that specified in a
requirement as long as the final risk
level is the same.
EPA disagrees fundamentally with
this approach, which EPA believes is far
broader than what Congress intended.
As another commenter noted, the
purpose of the waiver is to allow
alternative technologies that provide a
degree of protection as great or greater
as the specified technology. The
language from the Conference Report on
SARA makes clear the narrower
purpose of this waiver for the use of
alternative but equivalent technologies;
comparison based on risk is only
permitted where the original standard is
risk-based:
This [waiver] allows flexibility in the
choice of technology but does not allow any
lesser standard or any other basis (such as a
risk-based calculation) for determining the
required level of control. However, an
alternative standard may be risk-based if the
original standard was risk-based.
H.R. Rep. No. 962,99th Cong., 2d Sess.
(1986) ("Conference Report on SARA")
at p. 249. Another commenter believed
that EPA's criteria are unnecessarily
restrictive, in that these criteria should
be balanced in evaluating an alternative
rather than required to be equaled or
exceeded. EPA believes that the first
three criteria, i.e., degree of protection.
level of performance, and future
reliability, should at least be equaled for
an alternative to be considered
equivalent. While it is possible that
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations 8749
there may be redundancy among the
three, a lesser level in any of these
criteria would compromise equivalency
with the original standard.
Regarding the fourth criterion, EPA
proposed that the time required to
achieve results using the alternative
remedy should not be significantly more
than that required under the waived
ARAR. Several commenters objected to
this criterion, arguing that it could
preclude less expensive technologies or
ones that provide greater protection or
reliability. They were also troubled by
the vagueness of the standard of
"significantly more."
EPA appreciates the concerns raised
by these commenters regarding the role
of time in evaluating an alternative for
this waiver. The standard proposed was
not specific precisely in order to allow
cases where alternative methods may
provide great benefits even though
requiring longer time for
implementation, as with, for example,
the use of bioremediation instead of
incineration. While EPA still believes
that the time required to implement an
alternative should be considered in
using this waiver, with a bias toward
quicker remedies, EPA recognizes the
validity of commenters' claims that the
duration should be balanced against
other beneficial factors and should not
be a necessary condition for
equivalence.
A final commenter expressed concern
that this waiver as interpreted by EPA
would actually require the alternative to
exceed the level of protectiveness
provided by the ARAR. EPA does not
believe that the criteria that have been
proposed for this waiver in any way
require that the alternative be more
protective than the ARAR, rather, that it
be at least as protective as the ARAR.
Final rule: EPA is promulgating the
rule as proposed.
Name: Section 300.430[f)(l)(ii)fC){5).
Inconsistent application of state
requirements.
Proposed rule.' This waiver is intended
to prevent application to Superfund sites
of state requirements that have not been
consistently applied elsewhere in a
state. A standard is presumed to have
been consistently applied unless there is
evidence to the contrary. The preamble
to the proposed NCP explained that
consistency of application may be
demonstrated by the similarity of sites
or response circumstances, the
proportion of noncompliance cases,
reasons for noncompliance, and
intentions to apply future requirements.
Intent can be demonstrated by policy
statements, legislative history, site
remedial planning documents, or state
responses to federal-lead sites (53 FR
51440].
Response to comments: Several
commenters disagreed with EPA's
position that potential state ARARs will
be considered to have been consistently
applied in the past unless evidence
exists to the contrary. Commenters also
disagreed with EPA's position on state
intentions to consistently apply new
ARARs. Commenters argued that the
statutory language and the legislative
history of CERCLA do not contain any
basis for EPA's position that potential
state ARARs will be presumed to have
been consistently applied unless
evidence exists to the contrary.
Commenters suggested that EPA
develop a formal procedure to be
followed by states in demonstrating the
consistency of past and future
application of standards. One
commenter argued that states should
bear the burden of proof and should be
required to document past applications
of potential ARARs.
For those ARARs with established
implementation records, commenters
favored a policy by which consistent
application would be based on
documented evidence supplied by the
states. One commenter suggested that
states be required to provide a list of
enforcement actions as evidence in
demonstrating consistent application.
Another commenter favored the
publication of all legally applicable state
ARARs in a publicly available
document, with appropriate review and
comment periods.
For new ARARs without sufficient
records of application, one commenter
suggested that states should be required
to develop an implementation plan for
the new ARAR and demonstrate that
sufficient funds exist to carry out the
plan. Additionally, this commenter
proposed that PRPs should have the
opportunity to forego compliance with
an ARAR if a state does not implement
the ARAR in accordance with
announced intentions. Another
commenter suggested that state
intentions to consistently implement an
ARAR be recorded in an official record.
In response, the proposed NCP did not
contain a specific procedure to be
followed by states in demonstrating
consistent application of state
standards. Rather, the preamble
describes what information can be
submitted for EPA review when the
consistency of application of a
particular requirement is questioned.
A standard is presumed to have been
consistently applied unless EPA
questions that conclusion or requests
additional information to substantiate
the conclusion. EPA continues to believe
that it is proper to presume that a state
has consistently applied (or in the case
of a newly adopted standard "intends to
consistently apply") a standard unless
there is reason to believe otherwise.
CERCLA section 121(f)(4) is written such
that this waiver may be invoked when
the President finds that a state
requirement is inconsistently applied.
CERCLA does not require states to
demonstrate consistent application in
order for a requirement to be considered
an ARAR. Also, imposing an up-front
formal procedure on states for
demonstrating consistent application
would impose a heavy administrative
burden. A special implementation plan
for newly-promulgated requirements is
likewise not required by statute and
would be unnecessarily burdensome on
states. States have the option of
providing evidence of consistent
application if EPA is considering
waiving a standard. In such a case, the
type of evidentiary showings suggested
by commenters may be appropriate.
Final rule: EPA is promulgating the
rule as proposed.
Name: Section 300.430(f)(l)(ii)(C)(6).
Fund-balancing.
Proposed rule: The proposed section
is based on CERCLA section
121(d)(4)(F), which states that this
waiver may be used for Fund-financed
actions under CERCLA section 104 only.
The proposal stated that an alternative
may be selected that does not attain all
ARARs when EPA determines that the
ARAR-compliant alternative will not
provide a balance between the need for
protection of human health and the
environment at the site and the
availability of Fund monies to respond
to other sites that may present a threat
to human health and the environment.
Further conditions for using this waiver
were explained in the preamble to the
proposed NCP (S3 FR 51440].
The preamble solicited comment on
EPA's intention to establish a dollar
threshold and specific criteria for
routinely invoking this waiver. The
threshold would be based on an amount
significantly higher than the average
cost of remediating sites with problems
similar to those at the site under
consideration, e.g., the cost of
addressing large municipal landfills.
Response to comments: Many of the
comments received on establishing a
dollar threshold were opposed to it,
generally because such a threshold
would be arbitrary. One commenter
argued that a site cleanup should not be
compromised because of a possible
future funding shortage elsewhere.
Other commenters noted that the
-------
8750 Federal Register / Vol. 55. No. 46 / Thursday. March 8, 1990 / Rules and Regulations
amount of money in the Fund is in a
steady state of flux and that a fixed
dollar threshold would not recognize the
dynamic nature of the Superfund
program (e.g., PRP-financed responses
may have an impact on the Fund.)
Establishing an arbitrary dollar
threshold is not the proper methodology
for this waiver, asserted one commenter.
Rather, if an alternative would not
attain an ARAR, yet would still fall
within the acceptable risk range, then it
would warrant selection. Another
commenter disagreed with a threshold
amount and advised EPA to focus on
minimizing Fund-financed cleanups
rather than raising the specter of a lower
nationwide level of cleanup effort
because the Fund may be depleted.
Some commenters supported
establishing a dollar threshold. One
commenter suggested a threshold of 15
percent over the average cost of
remediation at similar types of
Superfund sites. Another stated that a
threshold addresses the realities of a
limited pot of money for the national
remediation effort. This commenter
recommended calculating the average
remedial cost for specific types of sites
over 5 years. Such information would be
updated periodically to account for
inflation and increased costs of
treatment and new technologies.
Thresholds could be set at one standard
deviation above the mean. Another
commenter appeared to support the
threshold but stated that Congress
intended that this waiver be used only
in extraordinary circumstances where
the Fund resources may be seriously
depleted. This commenter argued that
exceeding a dollar threshold should
result in only an examination of the
waiver, not a presumption to invoke the
waiver.
In response, the reason for having a
Fund-balancing waiver is to ensure that
EPA's ability to carry out a
comprehensive national response
program is not compromised by the
expenditure of the Fund at a single site.
EPA has decided to establish a policy to
routinely consider—not necessarily
invoke—the Fund-balancing waiver at a
threshold point. EPA will use this
threshold as a guideline, rather than a
requirement, because of the dynamic
nature of both the program and of the
amount of funds annually appropriated
to the program by Congress. EPA
believes that it is appropriate to
consider the Fund-balancing waiver for
unusual, very costly cases. EPA believes
that when a single action would be four
times the cost of an average operable
unit, it could compromise EPA's ability
to conduct actions at other sites.
Therefore, EPA has decided that the
lead agency should routinely consider
the Fund-balancing waiver when the
cost of a remedy attaining an ARAR is
four times the current average cost of an
operable unit. EPA also reserves the
right to invoke the waiver in specific
situations when the cost of the remedy
is expected to fall below the threshold
and EPA determines that the single site
expenditure would place a
disproportionate burden on the Fund.
In response to comments on use of
this waiver by federal agencies other
than EPA and by PRPs, EPA notes that
CERCLA section 121(d)(4)(F) clearly
restricts use of this waiver to response
actions conducted under CERCLA
section 104 using the Fund, i.e., financed
by the Hazardous Substance Superfund.
Therefore, this waiver is unavailable for
other federal agencies.
Final rule: EPA is promulgating the
rule as proposed.
Name: Section 300.430(e)(2)(i)(B). Use
of maximum contaminant level goals for
ground-water cleanups.
Proposed rule: CERCLA section 121(d)
states that a remedial action will attain
a level or standard of control
established under the Safe Drinking
Water Act (SDWA), among other
statutes, where such level or control is
applicable or relevant and appropriate
to any hazardous substance, pollutant or
contaminant that will remain on-site.
The enforceable standards under the
SDWA are maximum contaminant
levels (MCLs) which represent the
maximum permissible level of a
contaminant which is delivered to any
user of a public water system. Section
12l(d) also states that remedial actions
shall attain maximum contaminant level
goals (MCLCs) where such goals are
relevant and appropriate to the
circumstances of the release.
Proposed § 300.430(e)(2)(i)(B) reflected
EPA's determination that MCLs
generally shall be considered relevant
and appropriate standards when
determining acceptable exposure for
ground water and surface water that is a
current or potential source of drinking
water. This section also stated that in
cases involving multiple contaminants
or pathways where the risk is in excess
of 10~4. MCLGs may be considered
when determining acceptable exposures.
An MCLG is a health-based goal set
at a level at which no adverse health
effects may arise, with a margin of
safety. An MCL is required to be set as
close as feasible to its respective MCLG,
taking into consideration the best
technology, treatment techniques, and
other factors (including cost). MCLs for
noncarcinogens are nearly always set at
MCLGs. Many MCLGs for carcinogens,
however, are set at zero. MCLs for
carcinogens are set above zero.
In the preamble to the proposed rule
(53 FR 51441-42), EPA explained that
MCLs rather than MCLGs generally are
relevant and appropriate to the cleanup
of ground water that is or may be used
for drinking because MCLs are the
enforceable standards under the Safe
Drinking Water Act (SDWA), the MCLs
for carcinogens are within EPA's
acceptable risk range, and MCLs are
protective. MCLs represent the level of
water quality that EPA believes is
acceptable for over 200 million
Americans to consume every day from
public drinking water supplies. EPA
decided that Superfund cleanup of
drinking water should use the same
standards as EPA's drinking water
program.
Since MCLs are usually only legally
applicable under the SDWA to the
quality of drinking water at the tap,
there will be few instances in which
MCLs are applicable to cleanup of
ground water at a Superfund site. For
this reason, MCLs are generally
considered "relevant and appropriate"
to ground water that is or may be used
for drinking. The preamble to the
proposed rule further explained that
MCLGs may be relevant and
appropriate where the risk posed by
multiple contaminants or pathways was
in excess of 10"* (53 FR 51441).
Response to comments: The majority
of commenters supported the proposed
NCP's policy on the use of MCLs rather
than MCLGs as generally relevant and
appropriate standards. Many of these
commenters argued that MCLs should
generally be the cleanup standard
because they are protective of human
health and the environment, are
generally set at practical limits of
detection, fall within EPA's acceptable
risk range, and are the enforceable
standards under the Safe Drinking
Water Act and other environmental
programs, e.g., MCLs are used as
ground-water protection standards
under RCRA.
Some agreed with EPA that it makes
little sense to require MCLGs because
the result would be that the water
around Superfund sites would be
cleaner than the water used for drinking.
Others argued that requiring MCLGs
would undermine SDWA's use of MCLs
as enforceable drinking water
standards. Commenters argued that
MCLGs for ground-water cleanups equal
to zero are unattainable and not
detectable, primarily because no
adequate technologies are presently
available. A commenter further stated
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations 8751
that the purpose of MCLGs is not to
establish cleanup levels and that
MCLGs have no relationship to the
circumstances at a Superfund site.
Another commenter argued that cleanup
standards other than MCLs are often
impractical to measure.
Commenters also observed that
cleanup levels determined by MCLGs
may not be attainable. One commenter
argued that limitations in cleanup
techniques and analytical methodology
would make it impossible to achieve
MCLGs, waivers would have to be used,
and remediation schemes would become
needlessly complex and prolonged.
Some commenters agreed with EPA's
statement that CERCLA does not require
EPA to eliminate all risks.
One commenter noted that MCLs for
carcinogens are all within EPA's
acceptable risk range. A commenter
further stated that the use of MCLGs is
inconsistent with the requirement that
additive risks not exceed 10~4. This
commenter argued that because MCLGs
represent zero risk, the use of MCLGs
undermines EPA's risk assessment
policy.
Other comments appeared to
generally support the use of MCLs but
advised that MCLs should not be used in
certain situations. A commenter
cautioned that EPA must assure that
technical problems with measuring
compliance are resolved. Also, this
commenter argued that MCLs must be
applied with flexibility because they
may be overly conservative. Another
commenter stated that MCLs should not
be used where aquifers are not likely to
be employed as drinking water sources
or where MCLs may be technically
unachievable.
Other commenters generally
supported EPA's proposal but disagreed
that MCLGs should ever be used for
multiple contaminant or pathway
situations posing risk in excess of 10"4.
Another commenter contended that
MCLs provide adequate protection in
most cases of potential multiple
exposure.
Several of the comments opposed to
the proposal argued that the MCL policy
is in direct conflict with the statutory
language. These commenters contend
that MCLs are not sufficiently protective
of human health because cost and
technical feasibility factors are
considered when developing MCLs and
that cost considerations cannot be
considered until health standards are
determined. Some argued that cleanup
levels should be based on either MCLGs
or health-based standards.
One commenter argued that it is
inappropriate for Superfund to use
MCLs because the technologies
available for Superfund cleanups are
different than the technologies used to
treat water at public treatment works.
The commenter stated that EPA should
not confine Superfund's cleanup to
financial and technological realities
experienced by municipal water systems
and that Congressional intent was that
Superfund cleanup standards must be
more stringent than standards that apply
to public drinking water systems.
A commenter argued that CERCLA
requires EPA to establish tough upfront
cleanup standards (i.e., MCLGs) and
that EPA should be required to explain
to a community when it needs to waive
such requirements on a specific site. It is
concerned that, behind closed doors,
cleanup remedies that are more
protective of public health will be
eliminated on the basis of cost or other
problematic criteria.
EPA has carefully considered the
lengthy and disparate comments on the
use of MCLs and MCLGs as potential
relevant and appropriate requirements
for the cleanup of ground and surface
water at CERCLA sites. As a threshold
matter, EPA disagrees with those
commenters that assert that MCLGs can
never be relevant and appropriate.
Congress directed EPA in CERCLA
section 121(d)l2)(A) to attain MCLGs
"where relevant and appropriate under
the circumstances of the release,"
suggesting that MCLGs may be relevant
and appropriate in some but not
necessarily all situations. The proposed
rule itself noted that there may be
situations in which MCLGs—rather than
MCLs—are the relevant and appropriate
standard, such as where multiple
contaminants or pathways of exposure
heighten risk to human health (e.g., risk
greater than 10"1). 53 FR at 51441.13
However, EPA took the position in the
proposed rule that consideration of
MCLGs as potential relevant and
appropriate requirements should be
limited to those high-risk situations just
mentioned. Now, based on the public
comments and a re-examination of the
issue, EPA has modified its position on
when MCLGs are to be considered
potential relevant and appropriate
requirements.
EPA's opinion is that where an MCLG
establishes a contaminant level above
zero, it is appropriate and consistent
with the language in CERCLA section
121(d)(2)(A) to consider that MCLG as a
potential relevant and appropriate
requirement, with determinations to be
made on a site-specific basis as to the
relevance and appropriateness of
meeting that level under the
circumstances of the release.14 When an
MCLG is determined not to be relevant
and appropriate to the circumstances of
the release, the corresponding MCL will
be considered a potential relevant and
appropriate requirement and will be
evaluated under the circumstances of
the release.18 Site-specific assessments
of whether a requirement is relevant and
appropriate will be made based on the
factors set out in i 300.400(g)(2).
Further, EPA believes, consistent with
a number of comments, that where an
MCLG is equal to zero level of
contaminants (as is the case for
carcinogens), that MCLG is not
"appropriate" for the cleanup of ground
or surface water at CERCLA sites. In
such cases, the corresponding MCL will
be considered as a potential relevant
and appropriate requirement, and
attained where determined to be
relevant and appropriate under the
circumstances of the release. This
approach best harmonizes the multiple
directions of the statute to consider
MCLGs, MCLs, and practicability.16
By requiring CERCLA remedies to
attain MCLGs only when "relevant and
appropriate," section 121(d)(2) of the
statute affords EPA considerable
discretion. It is EPA's opinion that
MCLGs of zero, while reasonable as
non-enforceable goals under the SDWA,
are not appropriate as cleanup
standards under the terms of CERCLA
for several reasons. First, the purpose of
MCLGs under the SDWA is much
different from the purpose of ARARs
under CERCLA section 121. Examining
the purpose of a requirement is one of
the criteria used in the NCP to determine
whether a requirement is relevant and
" Ai noted in the final rule. EPA believe* it may
alto be appropriate to consider expoiure criteria
and other factor. >et out in { 300.430(e)(2)(i)(A) of
the rule in case* involving multiple contaminant* or
pathway) that present ri in exce** of Jfr4
14 Statutory waiver* may al«o be available on a
lite-specific ba»i«. CERCLA lection 121(d)(4).
1 * For noncarcinogens, MCLs generally are set
equal to MCLGs. EPA establishes all MCLs. i.e.. for
carcinogens and noncarcinogens, at levels that
protect human health.
'• Compare CERCLA section 122(d)(2)(A)
(' remedial action shall require a level or standard
of control which at least attains maximum
contaminant level goals established under the Safe
Drinking Water Act * * " where such goals or
criteria are relevant and appropriate );
section 121(d)(2)(A)(i) (remedial action shall require
a level or standard of control which at least attain*
"any standard, requirement • • • under any
Federal environmental law. including * * * the
Safe Drinking Water Act [e.g.. MCLs] * * * (that]
Is legally applicable to the * * * contaminant
concerned or is relevant and appropriate * * * *")
•nd section 121(b) ('The President shall select a
remedial action that • • • utilizes permanent
solutions and alternative treatment technologies or
resource recovery technologies to the maximum
extent practicable.")
-------
8752 Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
appropriate to the circumstances of a
release. NCP § 300.400(g)(2)(i).»T
The purpose of MCLGs under the
SDWA is to set goals for both
carcinogens and noncarcinogens, at a
level at which "no adverse or
anticipated effects on the health of
persons occur and which allow an
adequate margin of safety." SDWA
section 1412(b)(l)(B). See also House
Report No. 1185,93rd Cong., 2d Sess. at
20 (July 10,1974). The MCLGs are the
basis from which legally enforceable
MCL standards are set; MCLs are
designed to come as close as feasible to
the respective MCLG, taking into
account the best technology, treatment
techniques and other factors (including
cost). SDWA section 1412(b)(3); 50 FR
46881 (Nov. 13,1985). As explained in
the House debate on the SDWA:
The Administrator will have to make two
judgments. He will have to determine what
the health goal—recommended maximum
contaminant level [now known as the
MCLG]—should be. // there is no known safe
threshold, the recommended level should be
set at zero. But this is not a requirement
which is enforceable against public water
systems.
120 Cong. Rec. 36366-36403 (statement of
Cong. Rogers) (daily ed.. Nov. 19,1974),
reprinted in Senate Committee on
Environment and Public Works, 97th
Cong., 2d Sess., A Legislative History of
the Safe Drinking Water Act at 652
(Comm. Print 1982) (emphasis added).
EPA establishes MCLGs under SDWA
at threshold levels—with a margin of
safety—for non-carcinogens, and at a
zero level for carcinogens where the
threshold level is not known. Congress
must be assumed to have been aware of
this distinction when it required
CERCLA remedies to use only those
MCLG goals that are relevant and
appropriate in setting enforceable
standards to be attained at a site.
EPA also believes that MCLGs of zero
are not appropriate for determining the
actual cleanup levels to be attained
under CERCLA because CERCLA does
not require the complete elimination of
risk or of all known or anticipated
effects; i.e., remedies under CERCLA are
not required to entirely eliminate
potential exposure to carcinogens.
CERCLA section 121 does direct, among
other requirements, that remedies
protect human health and the
environment, be permanent to the
maximum extent practicable and be
cost-effective. Remedies at Superfund
sites comply with these statutory
mandates when the amount of exposure
is reduced so that the risk posed by
contaminants is very small, i.e., at an
acceptable level. EPA's risk range of
10"* to 10~* represents EPA's opinion on
what are generally acceptable levels. A
contaminant level of zero, and the
corresponding "no risk" level, are not
consistent with the cleanup objectives of
the CERCLA program. (Note that EPA
has determined that MCLs for
carcinogens protect human health
because they generally fall within this
acceptable risk range. See 54 FR 22093-
94 (May 22,1989); 52 FR 25700-01 (July 8,
1987).)
Another reason that EPA believes that
an MCLG of zero is not "appropriate" is
that it is impossible to detect whether
"true" zero has actually been attained.
EPA discussed the scientific difficulty in
demonstrating zero contaminant levels
during the 1985 rulemaking on MCLGs:
EPA has emphasized in the rulemaking that
zero is not a measurable level in scientific
terms and will continue to emphasize that
point to the public. That zero is not
measurable or attainable is irrelevant to the
purpose of setting RMCLs which is to set a
health goal to prevent adverse effects with a
margin of safety.
50 FR at 46884, 46896 (Nov. 13,1985)
(emphasis added).18 EPA's experience
and judgment is that determining that
contaminant levels have been reduced
to zero cannot be achieved in practice,
and none of the many public comments
on this issue provided evidence to the
contrary. ARARs must be measurable
and attainable since their purpose is to
set a standard that an actual remedy
will attain.
EPA's interpretation gives effect to
another important mandate in CERCLA
section 121. In addition to requiring EPA
to attain MCLGs where relevant and
appropriate, the statute directs EPA to
require levels that attain the
"requirements" under federal
environmental laws, including the
SDWA, where legally applicable or
relevant and appropriate (section
121(d)(2)(A)). MCLs are the legally
enforceable requirements under the
SDWA. Thus, section 121 appears to
require EPA to attain both MCLs and
MCLGs, where applicable or relevant
and appropriate, at CERCLA sites.
EPA's policy gives effect to these two
" Similarly, the statute cites the "purpose for
which criteria were developed" as a principal factor
to consider in deciding whether water quality
criteria under the CWA are "relevant and
appropriate under the circumstances of the release."
See CERCLA section 121(d)(2)(B)(i).
1 • See also 49 FR 24347 (June 12,1984) (emphasis
added): "Due to limitations in analytical techniques,
it will always be impossible to say with certainty
that the substance is not present. In theory, RMCLs
at zero will always be unachievable (or at least not
demonstrable). While zero could be the theoretical
goal for carcinogens in drinking water, in practice, a
goal of achieving the analytical detection limits for
specific carcinogens would have to be followed."
provisions by identifying the conditions
under which either the MCLG or the
MCL is the potential relevant and
appropriate requirement.
EPA's determination that MCLGs
equal to zero are not relevant and
appropriate requirements is also
consistent with CERCLA section
121(d)(4)(C), which establishes technical
impracticability as a basis for waiving a
requirement that would otherwise be
applicable or relevant and appropriate.
This waiver provision indicates that
Congress did not intend standards to be
attained if they are impracticable to
meet under the circumstances of a
specific release. EPA has determined
that MCLGs equal to zero are not
relevant and appropriate because
whether that level has been attained
cannot be verified under the
circumstances of any release.
Alternatively, EPA could have
assumed that all MCLGs (including
those of zero) are relevant and
appropriate requirements, and then used
the waiver provision in CERCLA section
121(d)(4)(C) at every site where the issue
arises. However, this would result in
needlessly complex and prolonged
procedures, as one of the other
commenters noted.19 Moreover, EPA
believes the better approach is to
resolve this issue as a matter of
interpretation in its national rulemaking
under CERCLA.
Other issues were raised by
commenters, such as determining where
in the ground water MCLs should be
attained, determining which ground
waters are or may be used for drinking,
setting cleanup standards for several
chemicals in an aquifer, and determining
reasonable timeframes for ground water
cleanups. These issues are addressed
elsewhere in today's preamble.
Final rule: For the reasons discussed
above, EPA is amending
{ 300.430(e)(2)(i) (B) through (D) of the
final rule to provide as follows:
(B) Maximum contaminant levels goals
(MCLGs). established under the Safe
Drinking Water Act. that are set at levels
above zero, shall be attained by remedial
actions for ground or surface waters that are
current or potential sources of drinking
•water, where the MCLGs are relevant and
appropriate under the circumstances of the
release based on the factors in i 300.400(g)(2).
If an MCLG is determined not to be relevant
and appropriate, the corresponding maximum
contaminant level (MCL) shall be attained
'• Note, however, that the site-specific waiver* in
CERCLA section 121(d)(4) may still be appropriately
considered under this rule in cases where a
standard (such as an MCL or an MCLG) is identified
as a relevant or appropriate requirement.
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations 8753
where relevant and appropriate to the
circumstances of the release.
(C) Where the MCLC for a contaminant
has been set at a level of zero, the MCL
promulgated for that contaminant under the
Safe Drinking Water Act shall be attained by
remedial actions for ground or surface waters
that are current or potential sources of
drinking water, where the MCL is relevant
and appropriate under the circumstances of
the release based on the factors in
< 300.400(g)(2).
(D) In cases involving multiple
contaminants or pathways where attainment
of chemical-specific ARARs will result in
cumulative risk in excess of 10"', criteria in
paragraph (e)(2)(i)(A) of this section may also
be considered when determining the cleanup
level to be attained.
Name: Section 300.430(f)(5)(iii)(A).
Location of point of compliance for
ground-water cleanup standards.
Proposed rule: Section
300.430(e)(2)(i)(B) specified the
standards that shall generally be
considered relevant and appropriate
when determining acceptable exposure
levels for ground water or surface water
that is a current or potential source of
drinking water. Proposed
§ 300.430(f)(4)(iii)(A) (renumbered as
final § 300.430(f)(5)(iii)(A)) states that
performance shall be measured at
appropriate locations in the ground
water, etc. The preamble to the
proposed rule explained that for ground
water, remediation levels should
generally be attained throughout the
contaminated plume, or at and beyond
the edge of the waste management area
when waste is left in place (53 FR
51426). (The preamble also discussed
points of compliance for other media
[Id.]; see today's preamble to
§ 300.430(e), "Feasibility study, 1.
Remedial action objectives and
remediation goals," for discussion of
these other points of compliance.)
Response to comments: Several
commenters essentially supported the
proposed policy regarding point of
compliance, but emphasized that the
ground-water classification scheme
should not be used to delay cleanup or
to "write-off" aquifers.
Several other commenters opposed
the proposal that cleanup standards,
specifically MCLs or MCLCs, should be
met throughout the ground water. Most
proposed alternatively that the
standards be met only at the tap or
other realistic point of use, based on a
site-specific exposure or risk
assessment, and that higher levels be
allowed in the ground water, especially
immediately downgradient from a waste
management area, to take into account
natural attenuation. Some proposed that
compliance should be at the facility
property boundary, or beyond if
exposure is precluded under CERCLA
alternate concentration limits. One
commenter argued that point of
compliance is a site-specific, case-by-
case determination that should not be
specified in the preamble, while another
sought the same level of flexibility for
ground-water contamination cleanup as
there is for contaminant source areas.
These commenters felt that if
compliance is not linked to actual or
realistic future exposure, the resulting
cleanups would be unnecessary or not
cost-effective. They also maintained that
using actual or likely points of exposure
would be more appropriate to ensure
that actual drinking water meets
standards. Also, they argued that the
proposed point of compliance violates
the intent of "relevant and appropriate"
in that it is inconsistent with and more
stringent than the compliance point
under SDWA itself, which is at the tap.
EPA disagrees fundamentally with
these commenters. MCLs, which are
enforceable drinking water standards,
and MCLGs above zero, are indeed
relevant in considering cleanup levels
for water that is or may be used for
drinking. Although SDWA does not
focus on general ground-water
contamination, EPA believes that the
MCL standards and non-zero MCLGs
promulgated under SDWA are
potentially relevant and appropriate to
ground-water contamination. CERCLA
sets out a mandate for remedies that are
protective of use of .ground water by
private or public users. For example,
section 104(c)(6) reflects Congress's
expectation that ground water should be
restored to protective levels. If ground
water can be used for drinking water,
CERCLA remedies should, where
practicable, restore the ground water to
such levels. Such restoration may be
achieved by attaining MCLs or non-zero
MCLGs in the ground water itself,
excluding the area underneath any
waste left in place. Thus, these
standards and goals may appropriately
be used as cleanup levels in the ground
water as well as for the delivery of
drinking water by public water systems.
Furthermore, as stated in the
preamble to the proposed rule, "EPA's
policy is to attain ARARs * * * so as
to ensure protection at all points of
potential exposure" (53 FR 51440). Under
the approach proposed by many of these
commenters—meeting standards only at
the tap—most ground water would not
be restored or remediated, since meeting
standards through wellhead treatment
could conceivably always be substituted
for restoration of the ground water itself.
This approach, however, would not
protect many potential future users,
particularly those with private wells.
who may be unaware of the need to
treat the contaminated ground water
before using it for drinking water.
Moreover, this approach depends
entirely on institutional controls, which
should not be used as the primary
remedy when more active remediation
measures, which provide greater
reliability in the long term, are
practicable.
Using the facility property boundary
as a point of compliance for MCLs, non-
zero MCLGs, or alternate concentration
limits raises similar problems. At many
CERCLA sites, the concept of a facility
property boundary is not meaningful
because a facility is not in operation
(CERCLA defines the concept in terms
of an area where contamination has
come to be located). Also, allowing
higher ACLs to be set at the boundary in
the hope that MCLs or non-zero MCLGs
will be achieved at a downgradient well
through attenuation does not meet the
statutory prerequisites for ACLs in
CERCLA section 121(d)(2)(B)(ii), which
requires (among other things) surface
discharge of the ground water and
enforceable means of protecting against
use of the contaminated ground water.
One commenter objected that the
proposed policy was vague and failed to
give criteria for determining point of
compliance. The commenter specifically
cited the word "generally" in the policy
as a source of confusion. EPA believes
that the policy as reiterated above gives
clear direction, considering that there
will be situations, such as where
waivers are needed, where cleanup
levels cannot be attained throughout the
plume.
EPA believes that remediation levels
should generally be attained throughout
the contaminated plume, or at and
beyond the edge of the waste
management area, when the waste is
left in place. However, EPA
acknowledges that an alternative point
of compliance may also be protective of
public health and the environment undei
site-specific circumstances.
In particular, there may be certain
circumstances where a plume of ground
water contamination is caused by
releases from several distinct sources
that are in close geographical proximity.
In such cases, the most feasible and
effective ground-water cleanup strategy
may be to address the problem as a
whole, rather than source-by-source,
and to draw the point of compliance to
encompass the sources of release. In
determining where to draw the point of
compliance in such situations, the lead
agency will consider factors such as the
proximity of the sources, the technical
practicability of ground-water
-------
8754 Federal Register / Vol. 55, No. 46 / Thursday. March 8. 1990 / Rules and .Regulations
remediation at that specific site, the
vulnerability of the ground water and its
possible uses, exposure and likelihood
of exposure and similar considerations.
Additional guidance on dealing with
remote sites is provided in the preamble
section above on ground-water policy.
Final rule: EPA is promulgating in
final § 300.430(f)(5)(iii)(A) the siatement
on points of compliance ("performance
shall be measured at appropriate
locations in the ground water, * * *")
that was in proposed
§ 300.430(f)(4)(iiiJ(A).
Name: Section 300.430(e)(2)(i)(F)- Use
of alternate concentration limits (ACLs).
Proposed rule: The preamble to the
proposed NCP (53 FR 51434) discussed
conditions under which alternate
concentration limits (ACLs) specified
under CERCLA may be used as cleanup
standards. The preamble explained that
CERCLA ACLs may be used if the
conditions of CERCLA section
121(d)(2)(B)(ii) are met and cleanup to
MCLs or other protective levels is not
practicable.
Response to comments: Several
comments were made on the proposed
preamble section explaining the use of
CERCLA ACLs. Some commenters
supported the proposed use of ACLs as
is; others suggested that EPA should do
more to emphasize their utility,
particularly within a facility; and one
commenter maintained that ACLs
should not be less stringent than other
standards.
In support of the proposal, one
commenter pointed out that use of
institutional controls and ACLs are
appropriate for the same reason, that is,
when use of treatment to attain drinking
water standards is not practicable.
Other commenters noted that ACLs
provide desirable flexibility and are
already well established under the
RCRA program. One commenter pointed
out that use of an ACL at a site should
not require a new risk assessment in
addition to that done during the RI/FS.
Some commenters suggested ways to
expand the use of ACLs at CERCLA
cleanups. One commenter wanted EPA
to include the use of ACLs in the NCP's
regulatory language. Another
commenter, noting that Congress's
concern was primarily with use of ACLs
for exposure points outside a facility,
suggested that ACLs could be expected
to have great utility within the
boundaries of a CERCLA facility; they
could be granted when contaminants in
ground water will attenuate to ARAR-
compliant levels at the leading edge of
the plume. With this in mind the
commenter suggested that ACLs should
be an intrinsic consideration in tin.
initial step of ARARs identification. In a
similar vein another commenter
suggested that the facility boundary
should be defined to include the area
covered by institutional controls for the
purpose of the statutory criteria and for
defining the point of exposure.
EPA disagrees generally with those
commenters who would extend the use
of CERCLA ACLs set above drinking
water standards to areas within the
facility boundary or areas covered by
institutional controls. EPA interprets the
CERCLA section on ACLs not as an
entitlement, but rather as a limitation on
the use of levels in excess of standards
that would otherwise be appropriate for
a site. Although the limitation refers
only to areas outside the facility
boundary, EPA maintains that the same
principle holds within the boundary (to
the edge of any waste management area
left at the site), namely, that such ACLs
should only be used when active
restoration of the ground water to MCLs
or non-zero MCLGs is not practicable.
Clearly, the availability of institutional
controls in itself is not sufficient reason
to extend the allowance for levels above
drinking water standards or non-zero
goals; rather, as discussed elsewhere in
the preamble, institutional controls are
considered as the sole remedy only
where active remediation is not
practicable.
EPA also disagrees with a commenter
who asserted that ACLs cannot be less
stringent than state or tribal ARARs or
MCLGs. There is clearly no point to the
ACL described in CERCLA unless it is
above the standard normally applied to
ground water of a given class. EPA does,
however, believe that the policy
described above should mitigate the
commenter's fears that ground water
will be sacrificed.
These comments suggest some
confusion as to when MCLs or MCLGs
need to be waived under CERCLA
section 121(d)(4). EPA's policy is that
MCLs or MCLGs above zero should
generally be the relevant and
appropriate requirement for ground
water that is or may be used for
drinking, and that a waiver is generally
needed in situations where a relevant
and appropriate MCL or non-zero MCLG
cannot be attained. If, however, a
situation fulfills the CERCLA statutory
criteria for ACLs, including a finding
that active restoration of the
ground water to MCLs or non-zero
MCLGs is deemed not to be practicable,
documentation of these conditions for
the ACL is sufficient and additional
documentation of a waiver of the MCL
or MCLG is not necessary.
In determining that a CERCLA ACL
may be used outside the facility
boundary, the risk assessment and other
analysis conducted in the RI/FS
generally should provide the information
required for the documentation that the
statutory criteria and other guidelines
given above are satisfied. EPA has
added a reference to use of ACLs as
prescribed in CERCLA in
§ 300.430(e)(2)(i)(F).
Final rule: EPA has added a
§ 300.430(e)(2)(i)(F) to the rule to
reference the language in CERCLA
section 121(d)(2)(B)(ii) on alternate
concentration limits.
Name: Section 300.430(e)(2). Use of
federal water quality criteria (FWQC).
Proposed rule: The preamble to the
proposed rule discussed when federal
water quality criteria are likely to be
relevant and appropriate (53 FR 51442).
EPA stated that a FWQC, or a
component of a FWQC, may be relevant
and appropriate when the FWQC is
intended to protect the uses designated
for the water body at the site, or when
the exposures for which the FWQC are
protective are likely to occur. In
addition, whether a FWQC is relevant
and appropriate depends on the
availability of standards, such as an
MCL or state water quality standard,
specific for the constituent and use. In
particular, when a promulgated MCL
exists, an FWQC would not be relevant
and appropriate for a current or
potential drinking water supply.
Response to comments: One
commenter opposed EPA's policy on the
relevance and appropriateness of
federal water quality criteria (FWQC)
for current or potential drinking water
sources when both FWQC and MCLs
are available for a contaminant. The
commenter stated that the test for
relevance and appropriateness of an
FWQC was whether it is protective of
humans or aquatic organisms and
whether that kind of exposure is an
issue at the site. The commenter
maintained that if an FWQC is more
stringent than an MCL. the FWQC
should apply, consistent with the policy
that the most stringent ARAR must be
complied with.
In response, FWQC are to be attained
"where relevant and appropriate under
the circumstances of the release or
threatened release," as provided in
CERCLA section 121(d)(2)(B). Final rule
§ 300.430(e)(2)(i)(E) reflects this fact.
However. EPA believes that at many
sites, FWQC will not be both relevant
and appropriate in light of other
potential ARARs.
EPA agrees with the commenter that
the more stringent ARAR should
generally be attained, especially in the
-------
Federal Register / Vol. 55, No. 46 / Thursday. March 8. 1990 / Rules and Regulations 8755
case of "applicable" requirements.
However, the determination of whether
a requirement is relevant and
appropriate is not based on its
stringency; rather, other criteria are
used, as discussed in the section on
relevance and appropriateness, and the
remedy must comply with the most
stringent requirement determined to be
ARAR. EPA also believes that, in some
situations, the availability of certain
requirements that more fully match the
circumstances of the site may result in a
decision that another requirement is not
relevant and appropriate. EPA believes
that one such situation is when an MCL
or non-zero MCLG and an FWQC for
human health are available for the same
contaminant when a current or potential
source of drinking water is of concern,
and there are no impacts to aquatic
organisms.
As discussed in this preamble, EPA
believes that an MCL or non-zero MCLG
is generally the relevant and appropriate
requirement for ground water that is a
current or potential source of drinking
water. EPA also believes that an MCL or
non-zero MCLG, promulgated
specifically to protect drinking water,
generally is the appropriate standard for
ground water even if an FWQC for
human health is also available for the
contaminant, for the following reasons.
CERCLA section 121(d)(2)(B)(i) lists,
among other factors, the purpose for
which the criteria were developed and
the designated or potential use of the
water as factors in determining whether
FWQC are relevant and appropriate.
Since FWQC for human health are
promulgated for exposures that include
drinking water and consuming fish, on
the one hand, and consuming fish only,
on the other, it is not directly the
purpose of such criteria to provide
drinking water standards per se,
although levels that protect such a use
can be mathematically derived from
these two values. Furthermore, such
derived values for drinking water will
not reflect the contribution of other
sources (through an apportionment
factor), as MCLs and MCLGs do. Finally,
for carcinogens FWQC are
recommended at zero, although values
corresponding to risks of 10"*, 10"', and
10~7 are also given. For the reasons
given in the discussion of MCLs and
MCLGs above, the zero value is not
considered relevant and appropriate
under CERCLA; MCLs, however,
represent a level determined to be both
protective of human health for drinking
water and attainable by treatment.
For the same reasons, EPA believes
that MCLs or non-zero MCLGs generally
will be the relevant and appropriate
standards for surface water designated
as a drinking water supply, unless the
state has promulgated water quality
standards (WQS) for the water body
that reflect the specific conditions of the
water body. However, surface water
bodies may be designated for uses other
than drinking water supply, and
therefore an FWQC intended to be
protective of such uses, such as the
FWQC for consumption of fish or for
protection of aquatic life, may very well
be relevant and appropriate in such
cases. Also, where a contaminant does
not have an MCL or MCLG, FWQC
adjusted to reflect drinking water use
may be used as relevant and
appropriate requirements.
Final rule: EPA is including in the
final rule at § 300.430(e)(2)(i)(E)
language stating that FWQC are to be
attained where relevant and appropriate
under the circumstances of the release
or threatened release.
Name: Section 300.435(b)(2).
Compliance with applicable or relevant
and appropriate requirements (ARARs)
during the remedial action.
Proposed rule: CERCLA section 121
requires that, at the completion of a
remedial action, a level or standard of
control required by an ARAR will be
attained for wastes that remain on-site.
However, consistent with the 1985 NCP
(§ 300.68(i), § 300.435(b)) of the proposed
NCP also required compliance with
ARARs during implementation of the
action, stating that during the course of
the remedial design/remedial action
(RD/RA), the lead agency shall be
responsible for ensuring that all federal
and state ARARs identified for the
action are being met, unless a waiver is
invoked. Examples of such requirements
given in the preamble to the proposed
rule included RCRA treatment, storage,
and disposal requirements, Clean Air
Act national ambient air quality
standards, and Clean Water Act effluent
discharge limitations (53 FR 51440).
Response to comments: EPA received
a number of comments that the NCP
should not require compliance with
ARARs during the remedial action.
Commenters argued that this policy is
inconsistent with the statute, which
requires compliance with ARARs only
at the completion of the remedial action,
and questioned EPA's authority to
require compliance with ARARs during
remedial design/remedial action.
Several comm enters pointed out that
CERCLA section 121(d)(l) states that
remedial actions must be protective and
"must be relevant and appropriate under
the circumstances," and argued that this
standard should govern how the action
itself is carried out. Design and
operation of the remedial action should
be based on best professional judgment
and undertaken in a manner that is
protective. Other commenters suggested
requiring compliance only with those
ARARs that "can reasonably be
achieved," or listing specific types of
ARARs that must be met during RD/RA.
Commenters were particularly
concerned about problems created by
requiring compliance with RCRA
requirements and the land disposal
restrictions in particular for remedial
actions.
EPA disagrees with these
commenters. EPA believes that it is
appropriate to require that remedial
activities comply with the substantive
requirements of other laws that apply or
are relevant and appropriate to those
activities. The reasons for complying
with such laws during the conduct of the
remediation are basically the same as
the reasons for applying ARARs as
remediation objectives: the laws help
define how the activity can be carried
out safely and with proper safeguards to
protect human health and the
environment. EPA is concerned that, if
the narrowest possible interpretation
were applied to ARARs compliance,
compliance with laws critical to
protection of health and the
environment would become subject to
debate, laws such as those that govern
surface water discharges or air
emissions, or that set operational
standards for incineration of hazardous
waste.
Several commenters also stated that
chemical-specific ARARs used as
remediation goals, such as MCLs as
ARARs for ground water remediation,
cannot be attained during
implementation. EPA wants to clarify
that it recognizes that ARARs that are
used to determine final remediation
levels apply only at the completion of
the action.
It is worthwhile to point out, in the
context of this policy on complying with
ARARs pertaining to the remedial
activity itself, that CERCLA provides a
waiver from ARARs for interim actions,
provided the final action will attain the
waived standard. If there is doubt about
whether an ARAR represents a final
remediation goal or an interim standard
and it cannot be met during the activity,
this waiver could be invoked.
Comments were also received on
EPA's discussion of compliance with
ARARs during remedial investigations
in the preamble to the proposed NCP (5,
FR 51442-43). In that discussion, EPA
stated that on-site handling, treatment
or disposal of investigation-derived
waste must satisfy ARARs and that the
-------
8756 Federal Register / Vol. 55, No. 46 / Thursday. March 8. 1990 / Rules and Regulations
field investigation teams should use best
professional judgment in determining
when such wastes contain hazardous
substances. One commenter
recommended that investigation-derived
samples be required to be handled,
treated, and disposed in accordance
with applicable RCRA requirements.
In response, EPA wishes to clarify the
discussion in the preamble to the
proposed NCR CERCLA section 101(23)
defines "removal" to include "such
actions as may be necessary to monitor,
assess, and evaluate the release or
threat of release of hazardous
substances * * * [including] action
taken under section 104(b) of
[CERCLA]." EPA has stated, therefore,
that studies and investigations
undertaken pursuant to CERCLA section
104(b), such as activities conducted
during the RI/FS, are considered
removal actions (54 FR13298, March 31,
1989). EPA's policy, explained elsewhere
in today's preamble, is that removal
actions will comply with ARARs to the
extent practicable, considering the
exigencies of the circumstances. Thus,
the field investigation team should,
when handling, treating or disposing of
investigation-derived waste on-site,
conduct such activities in compliance
with ARARs to the extent practicable,
considering the exigencies of the
situation. Investigation-derived waste
that is transported off-site (e.g., for
treatability studies or disposal) must
comply with applicable requirements of
the CERCLA off-site policy (OSWER
Directive No. 9834.11 (November 13,
1987)) and § 300.440 when finalized (see
53 FR 48218, November 29,1988).20 EPA
notes that CERCLA section 104(c)(l)
provides that the statutory limits on
removals do not apply to investigations,
monitoring, surveying, testing and other
information-gathering performed under
CERCLA section 104(b).
Final rule: EPA is promulgating the
rule as proposed except for minor
editing revisions.
Name: 300.5. Distinction between
substantive and administrative
requirements.
Proposed rule: The proposed
definitions of "applicable" and "relevant
and appropriate" stated that they are
cleanup standards, standards of control,
and other substantive environmental
protection requirements, criteria or
limitations. The preamble to the
proposed rule explained that
requirements that do not in and of
10 The CERCLA off-iile policy requires that
receiving facilities are in compliance with
"applicable laws." Note that many treatability (tudy
wastes are exempt from the permitting requirement
under RCRA (see 40 CFR 261.4(e) and (f))-
themselves define a level or standard of
control are considered administrative
(53 FR 51443). Administrative
requirements include the approval of, or
consultation with, administrative
bodies, issuance of permits,
documentation, and reporting and
recordkeeping. Response actions under
CERCLA are required to comply with
ARARs, which are defined not to
include administrative requirements.
Response to comments: Many
comments were received on EPA's
differentiation between substantive and
administrative requirements. Some
commenters supported the distinction
between substantive and administrative
requirements. Other commenters
disagreed with EPA's interpretation for
various reasons.
Several commenters argued that
Superfund actions should not be exempt
from consultation requirements. One
commenter argued that consultation
with a state may be necessary to
determine how state ARARs apply to
the remedy. A commenter contended
that it is virtually impossible to meet
substantive requirements without
consultation. One commenter asserted
that state procedures or methodology
necessary to determine permit levels
should be considered state ARARs.
Another argued that not requiring
consultation runs opposite to the spirit
of cooperation with states. One
commenter suggested narrowing the
exemption to allow for consultation
through existing Superfund mechanisms
such as consent orders, SMOAs, and
.cooperative agreements.
Commenters also objected to the
exemption from reporting and
recordkeeping requirements. One
contended that EPA had no legal
authority for such exemption. Others
argued that reporting and recordkeeping
are necessary to ensure proper control
of hazardous substances that will
remain on-site and are also necessary
for activities with local impacts: Long-
term water diversions and air or surface
water releases. Commenters asserted
that the lead agency must meet reporting
requirements to avoid gaps in a state's
environmental data. One commenter
noted that there are a number of federal
and state programs that require the
maintenance of complete databases and
that the NCP's approach is inconsistent
with such programs. Under these
programs, a state needs all discharge
information in order to evaluate surface
water toxicity impacts in a stream or to
establish total maximum daily loads.
The concern was also raised that
maintaining reporting and recordkeeping
procedures on a site-by-site basis would
undermine a state's standardized
reporting requirements, e.g., ground-
water monitoring report forms, NPDES
forms, etc. Also, unique site approaches
to reporting and recordkeeping may
result in problems not detected by a
state. Further, these commenters stated
that they were not aware of Superfund
recordkeeping and reporting
requirements. One commenter stated
that reporting requirements and
compliance mechanisms during remedy
implementation and O&M periods
should be specified through Superfund
mechanisms, as appropriate. One
commenter contended that if Superfund
insists on this distinction, a
determination whether a requirement is
substantive or administrative must be
documented.
EPA has reviewed these comments,
but concludes, as stated in the preamble
to the proposed NCP (53 FR 51443), that
CERCLA response actions should be
subject only to substantive, not
administrative, requirements. EPA
believes that this interpretation is most
consistent with the terms of CERCLA
and with the goals of the statute. Section
121(d)(2) provides that remedial actions
should require "a level or standard of
control" which attains ARARs; only
substantive standards set levels or
standards of control. Moreover,
Congress made clear in sections 121
(d)(2) and (d)(4) that the "standards" or
"requirements" of other laws that are
ARARs should be applied to actions
conducted on-site, and specifically
provided in section 121(e)(l) that federal
and state permits would not be required
for such on-site response actions. These
subsections reflect Congress' judgment
that CERCLA actions should not be
delayed by time-consuming and
duplicative administrative requirements
such as permitting, although the
remedies should achieve the substantive
standards of applicable or relevant and
appropriate laws. Indeed, CERCLA has
its own comparable procedures for
remedy selection and state and
community involvement. EPA's
approach is wholly consistent with the
overall goal of the Superfund program,
to achieve expeditious cleanups, and
reflects an understanding of the
uniqueness of the CERCLA program,
which directly impacts more than one
medium (and thus overlaps with a
number of other regulatory and statutory
programs). Accordingly, it would be
inappropriate to formally subject
CERCLA response actions to the
multitude of administrative
requirements of other federal and state
offices and agencies.
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8. 1990 / Rules and Regulations 8757
At the same time, EPA recognizes the
benefits of consultation, reporting, etc.
To some degree, these functions are
accomplished through the state
involvement and public participation
requirements in the NCP. In addition,
EPA has already strongly recommended
that its regional offices (and states when
they are the lead agency) establish
procedures, protocols or memoranda of
understanding that, while not recreating
the administrative and procedural
aspects of a permit, will ensure early
and continuous consultation and
coordination with other EPA programs
and other agencies. CERCLA
Compliance with Other Laws Manual,
OSWER Directive No. 9234.1-01 (August
8,1988). In working with states, EPA
generally will coordinate and consult
with the state Superfund office. That
state superfund office should distribute
to or obtain necessary information from
other state offices interested in activities
at Superfund sites.
The basis for this recommendation is
a recognition that such coordination and
consultation is often useful to determine
how substantive requirements
implemented under other EPA programs
and by other agencies should be applied
to a Superfund action. For example,
although the Superfund office will make
the final decisions on using ARARs, a
water office may provide information
helpful in determining ARARs when a
surface water discharge is part of the
Superfund remedy. Such information
may include surface water
classifications, existing use
designations, technology-based
requirements, and water quality
standards. A water office may also be
able to provide advice during the
detailed analysis of alternatives on the
effectiveness and implementability of
treatment alternatives and the likely
environmental fate and effects of
surface or ground-water discharges.
Other offices or agencies with different
environmental responsibilities may
similarly provide useful information, if it
is given in a timely manner.
EPA also recognizes the importance of
providing information to other programs
and agencies that maintain
environmental data bases. This is
particularly true where the remedy
includes releases of substances into the
air or water and the extent of such
releases is integral for air and water
programs to maintain accurate
information on ambient air and surface
water quality in order to set statutorily-
specified standards. Monitoring
requirements themselves are considered
substantive requirements and are
necessary in order to document
attainment of cleanup levels and
compliance with emission limitations or
discharge requirements identified as
ARARs in the decision document. EPA
strongly encourages its OSCs or RPMs,
or the agency that is responsible for
maintaining the operation and
maintenance of an action (e.g., pump
and treat system), to provide reports on
monitoring activities to other offices in a
form usable to those offices.
In summary, cleanup standards must
be complied with; although
administrative procedures such as
consultation are not required, they
should be observed when, for example,
they are useful in determining the
cleanup standards for a site. EPA
believes that in order to ensure that
Superfund actions proceed as rapidly as
possible it must maintain a distinction
between substantive and administrative
requirements.
Final rule: EPA is promulgating the
reference to "substantive" in the § 300.5
definitions of "applicable" and "relevant
and appropriate" as proposed.
Name: Section 300.430(f)(l}(ii)(B).
Consideration of newly promulgated or
modified requirements.
Proposed rule: The preamble to the
proposed rule discussed how new
requirements or other information
developed subsequent to the initiation of
the remedial action should be addressed
(53 FR 51440). It explained that new
requirements or other information
should be considered as part of the five-
year review (as provided for in
§ 300.430(f)(3)(v)) (renumbered as final
§ 300.430(f)(5)(iii)(C)) to ensure that the
remedial action is still protective of
human health and the environment. That
is, if a requirement that would be
applicable or relevant and appropriate
to the remedy is promulgated after the
initiation of remedial action, the remedy
will be evaluated in light of the new
requirement to ensure that the remedy is
still protective.
Response to comments: Several
commenters objected to EPA's policy
requiring consideration of new
requirements on the grounds that the
statute requires the five-year review
only to determine that a remedy is still
protective. These commenters were
concerned that consideration of new
requirements would require additional
analysis and perhaps drastic changes in
design; would impose an open-ended
liability on PRPs; and would violate
PRPs' right to due process. Two
commenters suggested that making new
requirements part of a negotiation
process based on a reopener in the
settlement agreement could alleviate the
second and third concern.
Based on the comments and its
experience in carrying out remedies,
EPA is modifying its policy on
considering newly promulgated or
modified requirements to address those
requirements that are promulgated or
modified after the ROD is signed, rather
than those requirements promulgated or
modified after the initiation of remedial
action, as discussed in the proposal.
Once a ROD is signed and a remedy
chosen, EPA will not reopen that
decision unless the new or modified
requirement calls into question the
protectiveness of the selected remedy.
EPA believes that it is necessary to
"freeze ARARs" when the ROD is
signed rather than at initiation of
remedial action because continually
changing remedies to accommodate new
or modified requirements would, as
several commenters noted, disrupt
CERCLA cleanups, whether the remedy
is in design, construction, or in remedial
action. Each of these stages represents
significant time and financial
investments in a particular remedy. For
instance, the design of the remedy
(treatment plant, landfill, etc.) is based
on ARARs identified at the signing of
the ROD. If ARARs were not frozen at
this point, promulgation of a new or
modified requirement could result in a
reconsideration of the remedy and a re-
start of the lengthy design process, even
if protectiveness is not compromised.
This lack of certainty could adversely
affect the operation of the CERCLA
program, would be inconsistent with
Congress' mandate to expeditiously
cleanup sites and could adversely affect
PRP negotiations, as noted by
commenters. The policy of freezing
ARARs will help avoid constant
interruption, re-evaluation, and re-
design during implementation of
selected remedies
EPA believes that this policy is
consistent with CERCLA section
121(d)(2)(A), which provides that "the
remedial action selected * * * shall
require, at the completion of the
remedial action," attainment of ARARs.
EPA interprets this language as
requiring attainment of ARARs
identified at remedy selection (i.e., thosi
identified in the ROD], not those that
may come into existence by the
completion of the remedy.*1 Neither the
explicit statutory language nor the
legislative history supports a conclusior
that a ROD may be subject to indefinite
revision as a result of shifting
>i No commented objected to the petition in the
preamble to the proposed rule that CERCLA
remedial actioni «hou!d attain ARARs identified a
the initiation—versus completion—of the action.
-------
8758 Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
requirements. Rather, given the need to
ensure finality of remedy selection in
order to achieve expeditious cleanup of
sites, and given the length of time often
required to design, negotiate, and
implement remedial actions, EPA
believes that this is the most reasonable
interpretation of the statute.
As EPA discusses elsewhere in this
preamble, one variation to this policy
occurs when a component of the remedy
was not identified when the ROD is
signed. In that situation, EPA will
comply with ARARs in effect when that
component is identified (e.g., during
remedial design), which could include
requirements promulgated both before
and after the ROD was signed. EPA
notes that newly promulgated or
modified requirements may directly
apply or be more relevant and
appropriate to certain locations, actions
or contaminants than existing standards
and, thus, may be potential ARARs for
future responses.
It is important to note that a policy of
freezing ARARs at the time of the ROD
signing will not sacrifice protection of
human health and the environment,
because the remedy will be reviewed for
protectiveness every five years,
considering new or modified
requirements at that point, or more
frequently, if there is reason to believe
that the remedy is no longer protective
of health and environment.
In response to the specific comments
received, EPA notes that under this
policy, EPA does not intend that a
remedy must be modified solely to
attain a newly promulgated or modified
requirement. Rather, a remedy must be .
modified if necessary to protect human
health and the environment; newly
promulgated or modified requirements
contribute to that evaluation of
protectiveness. For example, a new
requirement for a chemical at a site may
indicate that the cleanup level selected
for the chemical corresponds to a cancer
risk of 10~5 rather than 10"s, as
originally thought. The original remedy
would then have to be modified because
it would result in exposures outside the
acceptable risk range that generally
defines what is protective.
This policy that newly promulgated or
modified requirements should be
considered during protectiveness
reviews of the remedy, but should not
require a reopening of the ROD during
implementation every time a new state
or federal standard is promulgated or
modified, was discussed in the preamble
to the proposed rule (53 FR at 51440) but
not in the rule section itself. For the
reasons outlined above, EPA believes
that this concept is critical to the
expeditious and cost-effective
accomplishment of remedies duly
selected under CERCLA and the NCP,
and thus is appropriate for inclusion in
S 300.430(f)(l)(ii)(B) of the final NCP.
This will afford both the public and
implementing agencies greater clarity as
to when and how requirements must be
considered during CERCLA responses,
and thus will allow the CERCLA
program to cany out selected remedies
with greater certainty and efficiency. Of
course, off-site CERCLA remedial
actions are subject to the substantive
and procedural requirements of
applicable federal, state, and local laws
at die time of off-site treatment, storage
or disposal.
Final rule: EPA is adding the
following language to the rule at
5 300.430{f)(l)(ii)(B):
(B) On-site remedial actions selected in a
ROD must attain those ARARs that are
identified at the time of ROD signature or
provide grounds for invoking a waiver under
§ 300.430(f){l)(ii)(C)(3).
[1] Requirements that are promulgated or
modified after ROD signature must be
attained (or waived) only when determined
to be applicable or relevant and appropriate
and necessary to ensure that the remedy is
protective of human health and the
environment.
(2) Components of the remedy not
described in the ROD must attain (or waive)
requirements that are identified as applicable
or relevant and appropriate at the time the
amendment to the ROD or the explanation of
significant differences describing the
component is signed.
Name: Applicability of RCRA
requirements.
Proposed rule: The preamble to the
proposed rule discussed when RCRA
subtitle C requirements will be
applicable for site cleanups (53 FR
51443). It described the prerequisites for
"applicability" at length, which are that:
(1) The waste must be a listed or
characteristic RCRA hazardous waste
and (2) treatment, storage or disposal
occurred after the effective date of the
RCRA requirements under consideration
(for example, because the activity at the
CERCLA site constitutes treatment,
storage, or disposal, as defined by
RCRA).
The preamble explained how EPA will
determine when a waste at a CERCLA
site is a listed RCRA hazardous waste.
It noted that it is often necessary to
know the origin of the waste to
determine whether it is a listed waste
and that, if such documentation is
lacking, the lead agency may assume it
is not a listed waste.
The preamble discussed how EPA will
determine that a waste is a
characteristic hazardous waste under
RCRA. It stated that EPA can test to
determine whether a waste exhibits a
characteristic or can use best
professional judgment to determine
whether testing is necessary, "applying
knowledge of the hazard characteristic
in light of the materials or process
used."
The preamble also discussed when a
CERCLA action constitutes "land
disposal," defined as placement into a
land disposal unit under section 3004(k)
of RCRA, which triggers several
significant requirements, including
RCRA land disposal restrictions (LDRs)
and closure requirements (when a unit is
closed). It equated an area of
contamination (AOC), consisting of
continuous contamination of varying
amounts and types at a CERCLA site, to
a single RCRA land disposal unit, and
stated that movement within the unit
does not constitute placement. It also
stated that placement occurs when
waste is redeposited after treatment in a
separate unit (e.g., incinerator or tank),
or when waste is moved from one AOC
to another. Placement does not occur
when waste is consolidated within an
AOC, when it is treated in situ, or when
it is left in place.
Response to comments: EPA received
many comments on its discussion of
when RCRA requirements can be
applicable to CERCLA response actions.
On the issue of compliance with RCRA
in general, most of these commenters
argued that RCRA requirements are not
intended for site cleanup actions, that
such compliance will result in delays
and that RCRA requirements are often
unnecessary to protect human health
and the environment at CERCLA sites.
Other commenters argued, however,
that EPA is trying to avoid compliance
with RCRA requirements. Most of the
comments, however, focused on when
LDRs are applicable to CERCLA actions
and on EPA's discussion of what actions
associated with remediation trigger
LDRs.
Some commenters opposed EPA's
interpretation of "land disposal" or
"placement" as too lenient, believing
that EPA is trying to avoid compliance
with RCRA laws, particularly LDRs.
These commenters argued that LDRs
should be applicable when hazardous
wastes are managed, excavated, or
moved in any way. One argued that
ARARs waivers are available to address
situations when the LDR levels cannot
be achieved and should be used as
necessary, rather than trying to
narrowly define the universe of ARARs
to avoid waivers. This commenter was
also concerned with EPA's use of the
term "unit," calling it an inappropriate
concept for Superfund sites because it
-------
Federal Register / Vol. 55, No. 46 / Thursday. March 8, 1990 / Rules and Regulations 8759
will allow the excavation and
redeposition of waste within very large
areas without ever meeting RCRA
design and operating standards and
LDR. One commenter asserted that EPA
concerns on LDRs stem from an
unjustifiable belief that LDR cleanup
levels cannot be achieved.
Other commenters believed that the
definition of "placement" should
provide more flexibility. One asserted
that replacement of treated residuals in
the proximate area should not constitute
placement. The commenter argued that
Congress intended to address,
preventively or prospectively, the
original act of disposal, and that an
innocent government or public entity
should not be required to assume the
entire environmental responsibility of
the original disposers. The commenter
also argued that establishing that
replacement of treated waste triggers
LDRs will be a serious disincentive to
treating wastes. Some commenters
argued that LDRs should not be relevant
and appropriate where the CERCLA
waste to be disposed on land is merely
similar in composition to RCRA banned
waste.
Other commenters argued that LDRs
are inappropriate for CERCLA remedial
actions. They noted an inherent conflict
between LDRs, which require treatment
to BOAT levels, and the CERCLA
process, and claimed that LDRs will
supplant CERCLA's "carefully
articulated and balanced approach to
remedy selection." Commenters
asserted that compliance with LDRs will
create technical problems because of
differences between CERCLA wastes
and those evaluated for LDRs. The
solutions recommended by these
commenters primarily focused on
narrowing or eliminating RCRA
applicability, but included suggestions
for creating treatability groups for
CERCLA-type waste and seeking
legislative waivers from LDRs, e.g., a
waiver from LDRs for Superfund actions
at NPL sites.
One commenter believed that the
concept of "unit" is not readily
transferable to CERCLA sites due to the
age and former uses of many of the sites
undergoing remediation. Given the
ramifications of LDRs, the commenter
argued, it may be more reasonable to
create a presumption of treating the
entire site as one "unit," even if
remediation includes a series of
operable units.
Some comments were received on
EPA's statements on consolidating
waste. One stated that consolidation of
small amounts of waste across units
should not be considered placement,
because that will lead to less
environmentally sound and less cost-
effective solutions, particularly if LDRs
are triggered. Another recommended
that EPA should allow consolidation of
small volumes of waste anywhere on-
site, for purposes of storage or
treatment, without triggering otherwise
applicable RCRA standards. Another
commenter requested clarification that
consolidation within a unit included
normal earthmoving and grading
operations.
1. Actions constituting land disposal.
EPA disagrees with commenters who
considered EPA's interpretation of the
definition of "land disposal" under
RCRA section 3004(k) to be too narrow.
These commenters argued that any
movement of waste should be
considered "placement" of waste, and
thus "land disposal" under RCRA
section 3004(k).
The definition of "land disposal" is
central to determining whether the
RCRA LDRs are applicable to a
hazardous waste which is being
managed as part of a CERCLA response
action, or RCRA closure or corrective
action. The term "land disposal" is
defined under RCRA section 3004(k) as
including, but not limited to, "any
placement of such hazardous waste in a
landfill, surface impoundment, waste
pile, injection well, land treatment
facility, salt dome formation, salt bed
formation, or underground mine or
cave." The terms "landfill", "surface
impoundment," and the others, refer to
specific types of units defined under
RCRA regulations. Thus, Congress
generally defined the scope of the LDR
program as the placement of hazardous
waste in a land disposal unit, as those
units are defined under RCRA
regulations.
EPA has consistently interpreted the
phrase "placement * * * in" one of
these land disposal units to mean the
placement of hazardous wastes into one
of these units, not the movement of
waste within a unit. See e.g., 51 FR 40577
(Nov. 7,1986) and 54 FR 41566-67
(October 10,1989)(supplemental
proposal of possible alternative
interpretations of "land disposal"). EPA
believes that its interpretation that the
"placement * * * in" language refers to
a transfer of waste into a unit (rather
than simply any movement of waste) is
not only consistent with a
straightforward reading of section
3004(k), but also with the Congressional
purpose behind the LDRs. The central
concern of Congress in establishing the
LDR program was to reduce or eliminate
the practice of disposing of untreated
hazardous waste at RCRA hazardous
waste facilities. The primary aim of
Congress was prospective rather than
directed at already-disposed waste
within a land disposal unit. See 51 FR
40577 (Nov. 7.1986). Moreover,
interpreting section 3004(k) to require
application of the LDRs to any
movement of waste could be difficult to
implement and could interfere with
necessary operations at an operating
RCRA facility. For instance, when
hazardous waste is disposed of in a land
disposal unit at an operating RCRA
facility, there may well be some
"movement" of the waste already in the
unit. Under the commenters' approach,
such movement without pretreatment of
the moved waste could be in violation of
the LDRs. Thus, under the commenters'
interpretation, virtually no operational
activities could occur at any RCRA land
disposal unit containing hazardous
waste without pretreatment of any
waste disturbed by the operation;
clearly an infeasibie approach.
EPA also believes that this
interpretation of section 3004(k) is
supported by the legislative history for
this provision (see 129 Cong. Rec. H8139
(Oct. 6,1983)(statement of Rep. Breaux)),
and by the Congressional choice to
define "land disposal" more narrowly
for purposes of application of the LDRs
than the already-existing term
"disposal", which has a much broader
meaning under RCRA. Under RCRA
section 1004(3), the term "disposal" is
very broadly defined and includes any
"discharge, deposit, injection, dumping,
spilling, leaking, or placing" of waste
into or on any land or water. Thus,
"disposal" (in a statutory, rather than
the regulatory subtitle C meaning of the
term) would include virtually any
movement of waste, whether within a
unit or across a unit boundary. In fact,
the RCRA definition of "disposal" has
been interpreted by numerous courts to
include passive leaking, where no active
management is involved (see, e.g., U.S.
v. Waste Industries. Inc., 734 F.2d 159
(4th Cir. 1984)). However, Congress did
not use the term "disposal" as its triggei
for the RCRA land disposal restrictions,
but instead specifically defined the new
and more narrow, term "land disposal"
in section 3004(k). The broader
"disposal" language continues to be
applicable to RCRA provisions other
than those in subtitle C, such as section
7003. Thus, for the reasons outlined
above, EPA believes that the existing
interpretation, that movement of waste
within a unit does not constitute "land
disposal" for purposes of application ol
the RCRA LDRs, is reasonable.
With respect to the commenter who
asked whether normal earthmoving ani
grading operations within a land
disposal unit constitute "placement int
-------
8760
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
the unit", under EPA's interpretation of
RCRA section 3004(k), such activity
would not be "placement into the unit"
and thus the RCRA LDRs and other
subtitle C disposal requirements would
not be applicable (nor would the
requirement to obtain a permit under
RCRA or minimum technology
requirements in RCRA section 3004(o)
apply).
Given this interpretation of section
3004(k), EPA does not believe that it is
necessary to invoke ARAR waivers of
LDRs for any movement of waste within
a unit, which was the alternative
suggested by the commenters. Nor does
EPA believe that the widespread use of
such waivers would be practical or
desirable. 54 FR 41568-69 (October 10.
1989).
EPA also does not fully agree with the
commenters who argued that the RCRA
concept of "unit" does not apply to
CERCLA sites. The commenters who
criticized the application of the RCRA
"unit" to the CERCLA area of
contamination for purposes of section
3004(k) believed it to be either too
broad, allowing large areas to escape
the LDRs, or too narrow, not allowing
entire CERCLA sites to be considered a
single "unit". In contrast to hazardous
waste management units at a RCRA
facility, CERCLA sites often do not
involve discrete waste management
units, but rather involve land areas on
or in which there can be widespread
areas of generally dispersed
contamination. Thus, determining the
boundaries of the RCRA land disposal
"unit," for which section 3004(k) would
require application of the LDRs at these
sites, is not always self-evident.
EPA generally equates the CERCLA
area of contamination with a single
RCRA land-based unit, usually a
landfill. 54 FR 41444 (December 21,
1988). The reason for this is that the
RCRA regulatory definition of "landfill"
is generally defined to mean a land
disposal unit which does not meet the
definition of any other land disposal
unit, and thus is a general "catchall"
regulatory definition for land disposal
units. As a result, a RCRA "landfill"
could include a non-discrete land area
on or in which there is generally
dispersed contamination. Thus, EPA
believes that it is appropriate generally
to consider CERCLA areas of
contamination as a single RCRA land-
based unit, or "landfill". However, since
the definition of "landfill" would not
include discrete, widely separated areas
of contamination, the RCRA "unit"
would not always encompass an entire
CERCLA site.
Waste consolidation from different
units or AOCs at a CERCLA site are
subject to any applicable RCRA
requirements regardless of the volume of
the waste or the purpose of the
consolidation. Thus, EPA disagrees with
those commenters that asserted that
small volumes of hazardous waste at a
CERCLA site can be consolidated
anywhere on-site for storage or
treatment purposes without
consideration of any applicable RCRA
requirements. Such requirements may,
however, be subject to ARAR waivers in
appropriate circumstances.
The remaining comments received
with respect to EPA's interpretation of
section 3004(k) discussed the
achievability of LDR cleanup levels,
questioned the appropriateness of
applying the LDRs to remedial actions,
and requested more flexibility regarding
the LDRs. These comments were the
basis for EPA's supplemental notice and
proposed reinterpretation of section
3004(k), which is discussed below.
In light of the numerous comments
received on the interpretation of "land
disposal" in RCRA section 3004(k), as it
relates to removal, treatment, and
redeposition of hazardous wastes
generated by CERCLA and RCRA
remedial and other activities, and in
view of the important policy decisions
that RCRA LDRs pose for the CERCLA
and RCRA programs, EPA decided to
separately and more fully discuss the
issue, the interpretation outlined in the
proposed NCP, and possible alternative
interpretations of "land disposal". In a
supplemental notice to the proposed
NCP (54 FR 41566 (Oct. 10,1989)), EPA
outlined several technical, policy, and
legal issues concerning LDR
applicability to removal, treatment, and
redeposition of hazardous wastes, and
requested comment on two alternative
interpretations of "land disposal". The
first alternative would allow the
excavation and replacement of
previously disposed hazardous wastes
in the same unit or area of
contamination; since the same wastes
would remain in the same unit, this
activity would not constitute "land
disposal". Under the second alternative,
hazardous wastes could be excavated
and redeposited either within the
original unit or area of contamination, or
elsewhere at the site in a new or
existing unit. These interpretations
would allow greater flexibility in
remedial decision-making, in the context
of both CERCLA actions and RCRA
corrective actions and closures.
On November 6 and 7,1989, EPA held
a forum on contaminated soil and
groundwater ("Contaminated Media
Forum") to provide an opportunity for
interested groups to further address
these issues. The Contaminated Media
Forum was attended by representatives
from EPA, states, environmental groups,
Congress, and the regulated community.
A summary of the concerns raised and
suggested solutions appears in the
public docket for this rulemaking.
2. Selection of LDR treatment
standards. Upon further examination,
EPA believes that many of the problems
discussed in the supplemental notice,
and raised by commenters, result from
treatment standards developed pursuant
to the RCRA LDR program that are
generally inappropriate or infeasible
when applied to contaminated soil and
debris. As discussed in the October 1989
notice, EPA's experience under CERCLA
has been that treatment of large
quantities of soil and debris containing
relatively low levels of contamination
using LDR "best demonstrated available
technology" (BOAT) is often
inappropriate. 54 FR 41567,41568
(October 10,1989). EPA noted that:
Experience with the CERCLA program has
shown that many sites will have large
quantities—in some cases, many thousands
of cubic meters—of soils that are
contaminated with relatively low
concentrations of hazardous wastes. These
soils often should be treated, but treatment
with the types of technologies that would
meet the standard of BOAT may yield little if
any environmental benefit over other
treatment based remedial options.
54 FR 41568 (October 10,1989).
Examples of these and other situations
reflecting EPA's experience concerning
the inappropriateness of incinerating
contaminated soil and debris are
included in the record for this rule. In
addition, as discussed below, EPA has
experienced problems in achieving the
current noncombustion LDRs for
contaminated soil and debris. Based on
EPA's experience to date and the
virtually unanimous comments
supporting this conclusion, EPA has
determined that, until specific standards
for soils and debris are developed,
current BDAT standards are generally
inappropriate or unachievable for soil
and debris from CERCLA response
actions and RCRA corrective actions
and closures. Instead, EPA presumes
that, because contaminated soil and
debris is significantly different from the
wastes evaluated in establishing the
BDAT standards, it cannot be treated in
accordance with those standards and
thus qualifies for a treatabiliry variance
from those standards under 40 CFR
268.44.
Accordingly, persons seeking a
treatability variance from LDR
treatment standards for contaminated
soil and debris do not need to
demonstrate on a case-by-case basis
-------
Federal Register / Vol. 55. No. 46 / Thursday, March 8. 1990 / Rules and Regulations
8761
that BOAT standards for prohibited
hazardous wastes are inappropriate or
not achievable. As an alternative,
persons seeking a treatability variance
for soil and debris may meet the
appropriate levels or percentage
reductions in the currently available
guidance (Superfund LDR Guidance
#6A, "Obtaining a Soil and Debris
Treatability Variance for Remedial
Actions", EPA OSWER Directive 9347.3-
06FS, July 1989). In the context of
Superfund Records of Decision (ROD),
this means that EPA will generally
include such a variance in the proposed
plan and ROD when treatment of
contaminated soil and debris is an
element of the remedial action. Further,
EPA intends to issue guidance
supplementing the Superfund Guidance
#6A to expedite the processing of such
treatability variances in conjunction
with established remedy selection
procedures.
Treatment standards for prohibited
hazardous wastes are based on
performance achievable by application
of BOAT. 51 FR at 40578 (Nov. 7,1986).
BOAT, however, is not a technology-
forcing program, nor does it always
require the lowest possible levels of
waste treatment achievable with any
technology. See 130 Cong. Rec. S9178
(July 25,1984} (Statement of Sen.
Chaffee introducing the amendment that
became RCRA section 3004(m)). Rather,
what Congress contemplated is a
scheme whereby hazardous wastes are
to be treated using the technology (or
technologies) generally considered to be
suitable for the waste and that
substantially diminish the toxicity of the
waste or substantially reduce the
likelihood of migration. Id.; see also H.
Rep. No. 198, 98th Cong. 1st Sess. 33; S.
Rep. No. 284, 98th Cong. 1st Sess. 16-17.
EPA's rules developing treatment
standards likewise recognize that the
treatment standards be based on
appropriate technologies even if more
stringent treatment methods are
technically feasible. 51 FR at 40588-592
(Nov. 7,1986). For example, EPA has
generally based treatment standards for
organic contaminants in wastewaters
(normally defined as aqueous materials
containing less than 1% total organic
compound (TOC) and total suspended
solids (TSS)) on technologies other than
incineration (or other combustion), even
though such organics could be treated to
lower levels if the wastewaters were
incinerated. This is because incineration
(or other combustion) is not normally an
appropriate technology for wastewaters,
notwithstanding its capability of
performing to lower levels than
conventional wastewater treatment.
More generally, EPA's rules on
treatability variances recognize that
prohibited wastes be treated by
appropriate technologies. The rules thus
state that a petitioner may request a
treatability variance "where the
treatment technology is not appropriate
to the waste". 40 CFR 268.44(a).
Similarly, treatability variances are
warranted where the applicable
numerical treatment standard for the
waste cannot be achieved. 40 CFR
268.44(a). For this reason, EPA has found
that current BDAT standards based on
noncombustion technology also warrant
a treatability variance for soil and
debris. The complex matrices often
present in soil and debris may reduce
the effectiveness of stabilization and
other noncombustion technologies in
treating these wastes. For example, the
presence of oil and grease or sulfites in
the mixture may substantially interfere
with the stabilization process. More
generally, stabilization is a complex
treatment process and its application to
unique soil and debris mixtures is not
yet well understood. EPA's development
of alternative treatment levels in the
Superfund Guidance #6A noted above
was based on available data for soil and
debris mixtures and thus is more
tailored with respect to achievability
than the existing BDAT standards for
these waste mixtures. The difference
between these levels and the existing
BDAT standards for these wastes
demonstrates the feasibility of achieving
the current BDAT standards for soil and
debris. These alternative numbers thus
support EPA's presumption that the
BDAT standards are generally
inappropriate or not achievable for soil
and debris.
This presumption is supported by the
commenters on the December, 1988 and
October, 1989 proposals. EPA received
numerous comments from a wide range
of commenters discussing the
inappropriateness or infeasibility of
applying BDAT standards to
contaminated soil and debris. The
principal reason given for the
inappropriateness of the current BDAT
standards was the complexity of soil
and debris mixtures and the interference
with treatability caused by unique
matrices of contaminants in the soil and
debris. Moreover, commenters noted
that wastestream-derived BDATs have
not been fully demonstrated for many
contaminated soils and debris and that
the presence of trace quantities of one
waste in soil and debris may
inappropriately require use of a
treatment method that would not
otherwise be applicable to the other
wastes present. These comments were
further supported by comments made at
the Contaminated Media Forum.
The Agency's experience also
supports this conclusion of general
inappropriateness or infeasibility of
current BDAT standards for soil and
debris. For example, as indicated above,
EPA has developed alternative
treatment levels for soil and debris in
the Superfund #6A guidance which are
based on the application of the specific
treatment technologies to soil and
debris, rather than industrial process
wastes. Thus, these alternative levels,
which are better tailored to the
treatability of the complex soil and
debris mixtures found at Superfund
sites, reflect Agency experience
concerning the inappropriateness or
infeasibility of current BDAT for soil
and debris.
EPA has long indicated its intention to
develop separate treatment standards
for contaminated soil and debris
(without regard, incidentally, to the
origin of such waste, so that the
treatment standards would apply
whether the soil and debris is generated
from a CERCLA action or some other
activity). 51 FR 40577 (Nov. 7, 1986).
Although the Agency has already
expended considerable effort on such
standards, it has not been able to
propose or promulgate regulations
because of the more pressing need to
implement the rest of the land disposal
prohibition statutory provisions before
the various statutory deadlines. See
RCRA sections 3004 (d), (e), and (g). EPA
does not expect that the same level of
treatment performance will be required
for soil and debris as for industrial
process wastes.
In the interim period until EPA
promulgates these treatment standards,
contaminated soil and debris are subject
to the same treatment standards as-the
prohibited hazardous wastes that they
contain, unless a variance is appropriate
and is approved according to 40 CFR
268.44. 53 FR at 31146-149 (Aug. 17,1988)
and Chemical Waste Management v.
EPA, 869 F.2d 1526,1535-46,1538-40
(D.C. Cir. 1989). Where standards for the
underlying waste are based on the
performance of incineration, EPA has
granted national capacity variances for
the contaminated soils and debris
because there is insufficient national
capacity to treat these wastes. 40 CFR
268.30(c), 268.31(a)(l), 268.32(d)(l),
268.33(b), and 268.34(d). Where BDAT
treatment standards are in effect, it is
possible to petition for a treatability
variance based on the inappropriateness
of the BDAT standards to treat the
contaminated soil and debris. 40 CFR
268.44(a). As discussed earlier, EPA
-------
8762
Federal Register / Vol. 55. No. 46 / Thursday, March 8. 1990 / Rules and Regulations
believes that it is unnecessary for
petitioners (or the lead Agency in
CERCLA response actions) to make site-
specific demonstrations that BOAT
standards are inappropriate for
contaminated soil and debris. The
numerous comments and Agency
experience supporting a presumption
that the BOAT standards are
inappropriate or not achievable is
clearly warranted at this time because
the criteria in 40 CFR 268.44 for
treatability variances are generally met
for soil and debris. As a result, under
EPA's established treatability variance
procedures (40 CFR 268.44), variance
applications for contaminated soil and
debris do not need to demonstrate that
the physical and chemical properties
differ significantly from wastes
analyzed in developing the treatment
standard and that, therefore, the waste
cannot be treated to specified levels or
by specified methods. Petitions need
only focus on justifying the proposed
alternative levels of performance, using
existing interim guidance containing
suggested treatment levels for soil and
debris (Superfund LDR Guidance #6A,
"Obtaining a Soil and Debris
Treatability Variance for Remedial
Actions", EPA OSWER Directive 9347.3-
06FS, July 1989) as a benchmark.
Although the presumption is that
BOAT standards are not appropriate for
soil and debris, there may be special
circumstances where EPA determines
that the existing BOAT standards are
appropriate for contaminated soils and
debris at a particular site, such as where
high levels of combustible organics in
soil are present. In these circumstances,
the Agency would make a determination
that treatment to the BOAT standards
was appropriate and would require such
treatment.
EPA regulations provide that
treatability variances may be issued on
a site-specific basis. 40 CFR 268.44(h).22
11 In light of today's determination, the
application of (his rule requires clarification in two
respects. First, although EPA is today establishing a
general presumption that BOAT standards are
inappropriate or not achievable for treating (Oil and
debris, the Agency does not believe that this
presumption triggers the rulemaking variance
procedures in 40 CFR 268 44(a). Even with the
presumption, treatment levels will be determined on
a case-by-case basis, and commenters may submit
information contending that (he presumption is not
applicable in a particular case. Thus, it is EPA's
view that the site-specific, non-rulemaking
procedures in 40 CFR 26S.44(h) are entirely
appropriate. See S3 FR 31199-31200 (August 17.
1986).
Second. EPA does not interpret its site specific
variance procedures as invariably requiring
applicants to demonstrate that they cannot meet
applicable treatment levels or methods. The firat
lenience of 40 CFR 268.44(h) makes it clear that an
applicant may make one of two demonstrations to
qualify for a variance: he may show either that he
Thus, they may be approved
simultaneously with the issuance of a
RCRA permit, the approval of a RCRA
closure plan, or the selection of a
remedy in a CERCLA response action in
the ROD. In the case of an on-site
CERCLA response action, the
procedural requirements of the variance
process do not apply. See CERCLA
sections 121(e)(l) and 121(d)(2). The
variance decision will be made as part
of EPA's remedy selection process,
during which data justifying alternative
treatment levels will be included in the
administrative record files, and public
participation opportunities and Agency
response to comment will be afforded as
appropriate under this rule.
In EPA's view, the Agency's
determination that the BDAT standards
are generally inappropriate for
contaminated soil and debris addresses
many of the practical concerns raised by
commenters in the supplemental notice
on the Agency's interpretation of the
term "land disposal". For this reason,
and because EPA has had insufficient
time to review and evaluate the many
lengthy and complex issues raised by
commenters on the supplemental notice,
EPA is deferring any final decision to
modify that interpretation. (EPA will
respond to comments on the alternatives
in the supplemental notice when the
Agency makes a final decision on the
proposed reinterpretation of land
disposal.) Until a final decision is made,
the interpretation announced in the
preamble to the proposed NCP and
discussed in section 1 above will remain
in effect.
Final rule: There is no rule language
on this issue.
Name: Determination of whether a
waste is a hazardous waste.
Proposed rule: The preamble to the
proposed rule discussed how to
determine whether hazardous waste
regulated under RCRA Subtitle C was
present at a site (53 FR 51444).
Response to comments: Some
commenters raised questions about
EPA's discussion about determining
whether a waste exhibits a hazardous
characteristic. One argued that EPA
cannot assume a waste is not a
characteristic waste in the absence of
testing and should therefore adopt a
liberal and inclusive approach to
cannot meet i treatment standard, or that a
treatment method (or the method underlying the
standard is inappropriate for his waste. The final
sentence of $ 288.44(h), identifying the showing an
applicant must include in his variance application,
on its terms applies only to applications submitted
under the first criterion. EPA'a presumption,
however, applies to soil and debris regardless of
which of the two types of variances apply.
determining whether RCRA •applies to
avoid expensive and time-consuming
testing. Another commenter asked for
clarification on who was responsible for
applying "process knowledge" to
determine whether a waste was a
hazardous waste in the absence of
testing. The commenter asserted that,
under RCRA, EPA exercises
prosecutorial discretion if a generator,
acting in good faith, decides incorrectly
that his waste is not hazardous. EPA
notes that when it determines that there
is a violation there will normally be
some kind of enforcement action taken;
the level and type of prosecutorial
response will depend on a number of
factors, for example, the size of the
company, the significance of the
violation, the intent, etc.
Under RCRA rules, a generator is not
required to test, but may use knowledge
of the waste and its constituents to
judge whether the waste exhibits a
characteristic. (See 40 CFR 262.11(c).)
EPA believes this should also apply if
the lead agency or PRP at a CERCLA
site is the "generator." EPA wants to
make clear, however, that a decision
that a waste is not characteristic in the
absence of testing may not be arbitrary,
but must be based on site-specific
information and data collected on the
constituents and their concentrations
during investigations of the site. Based
on site data, it will be very clear in some
cases that a waste cannot be
characteristic; for example, if a waste
does not contain a constituent regulated
as EP toxic, a decision that the waste
does not exhibit this characteristic can
reliably be made without testing for EP
toxicity. EPA does not expect to
undertake testing when it can otherwise
be determined with reasonable certainty
whether or not the waste will exhibit a
characteristic.
In response to the second concern, the
determination whether a waste is a
hazardous waste may be made by EPA,
the state, or a PRP, depending on the
nature of the action. EPA will take any
necessary or appropriate action if
decisions about the hazardous nature of
the waste are in error or are made
without proper basis.
Several commenters discussed the
question of whether RCRA requirements
can be applicable to RCRA hazardous
waste disposed of before the RCRA
requirements went into effect in 1980.
One commenter argued that they could
not be, unless the waste exhibited a
characteristic at the time of the CERCLA
action. However, as one commenter
noted, EPA has consistently maintained
in enforcement actions that RCRA
requirements apply to any waste
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8, 1990 / Rules and Regulations
8763
materials disposed of prior to 1980 when
those materials are managed or
disposed of today. EPA agrees with this
latter comment and believes that this
policy applies to CERCLA actions as
well. This was also upheld in a recent
DC Court of Appeals decision, Chemical
Waste Management v. EPA, 869 F.2d
1526 (DC Cir. 1989). RCRA requirements
can apply when the CERCLA action
constitutes treatment, storage or
disposal of RCRA hazardous waste.
Note that RCRA requirements may also
be relevant and appropriate to pre-1980
waste.
One commenter suggested that EPA
allow consolidation, for purposes of
•torage or treatment, of small volumes
of wastes without triggering RCRA
standards. In response, while EPA
appreciates the concerns with meeting
substantive storage and treatment
requirements for small amounts of
waste, EPA believes that waste should
be managed according to standards
when those standards are ARARs
unless a waiver (such as for interim
measures) can be justified. It should be
noted that RCRA may not be applicable
for small quantity generators, as defined
under RCRA; however, a determination
would still have to be made about
whether any RCRA requirements would
be relevant and appropriate to small
quantities.
Final rule: There is no rule language
on this issue.
Name: When RCRA requirements are
relevant and appropriate to CERCLA
actions.
Proposed rule: The preamble to
proposed § 300.400(g)(2)(i), identification
of applicable or relevant and
appropriate requirements, criteria for
relevant and appropriate, stated that
RCRA requirements may be relevant
and appropriate when a waste is similar
in composition to a RCRA listed waste
(53 FR 51446).
Response to comments: 1. RCRA
requirements as relevant and
appropriate for wastes similar to RCRA
hazardous waste. Several commenters
expressed concern that RCRA
requirements may be potentially
relevant and appropriate for waste that
is not a RCRA hazardous waste, but is
similar to a RCRA hazardous waste.
Commenters argued that virtually any
waste or CERCLA substance is similar
to a RCRA hazardous waste in some
way, either in chemical composition, in
toxicity, in mobility, or in persistence,
and were concerned that this policy
represented an enormous expansion of
the RCRA program.
EPA believes that RCRA requirements
can potentially be relevant and
appropriate to wastes other than those
that are known to be hazardous waste.
For example, some information or
records must be available that identify
the source of the waste in order to
determine that the waste is a listed
hazardous waste. As a result, two
separate wastes could be identical in
composition, but only one identified as a
RCRA hazardous waste because
manifests are available that identify it
as a listed waste. RCRA requirements
would be applicable for the manifested
waste, but not for the other, even though
the two wastes are physically the same.
EPA believes that RCRA requirements
can be potentially relevant and
appropriate when the waste cannot be
definitively identified as a listed
hazardous waste.
EPA wants to emphasize, however,
that a number of the factors identified in
S 300.400(g)(2) should be considered in
determining whether a RCRA
requirement is relevant and appropriate.
The similarity of the waste to RCRA
hazardous waste or the presence of a
RCRA constituent alone does not create
a presumption that a RCRA requirement
will be relevant and appropriate. Nor is
it always necessary or useful to conduct
an in-depth, constituent-by-constituent
comparison of a CERCLA waste with
RCRA hazardous wastes, because most
RCRA requirements are the same
regardless of the specific composition of
the hazardous waste. Indeed, the statute
requires attainment of those
requirements that are relevant and
appropriate under the circumstances of
the release. Thus, the decision about
whether a RCRA requirement is relevant
and appropriate is based on
consideration of a variety of factors,
including the nature of the waste and its
hazardous properties, other site
characteristics, and the nature of the
requirement itself.
EPA anticipates that it will often find
some RCRA requirements to be relevant
and appropriate at a site and others not,
even for the same waste. This is
because certain waste characteristics
shared with RCRA hazardous wastes
may be more important than others
when evaluating whether a given
requirement is relevant and appropriate.
For example, the mobility of the waste,
among other factors, may be a key
concern in evaluating whether the
RCRA requirement that the cap used in
closing a landfill be less permeable than
the bottom liner (40 CFR 264.310(a)(5)) is
relevant and appropriate. Other
properties of the waste might be more
important in evaluating the relevance
and appropriateness of other RCRA
requirements.
2. RCRA requirements as relevant and
appropriate for mining wastes. Several
commenters asked EPA to state in the
NCP or its preamble that RCRA subtitle
C requirements will not be relevant and
appropriate to mining wastes. They
noted that, recognizing the unique
characteristics of mining wastes,
Congress exempted certain mining
wastes from regulation as hazardous
wastes under RCRA until EPA
completed studies on these wastes to
determine specifically whether such
regulation was appropriate. On July 3,
1986, EPA published its determination
for beneficiation and extraction wastes
which found that regulation under
subtitle C was not warranted for these
wastes, because EPA believes such
requirements," * * * if universally
applied, would be either unnecessary to
protect human health and the
environment, technically infeasible, or
economically impracticable to
implement." (51 FR 24496.) The
commenters argue, therefore, that
subtitle C requirements, which are not
legally applicable to these mining
wastes, also cannot be relevant and
appropriate, since EPA has formally
made the determination that these
requirements are not appropriate for
such wastes.
The commenters emphasized that
mining waste sites differ in a number of
ways from industrial wastes sites. They
argue that mining wastes are of
enormous volume and generally of lower
toxicity, that the sites typically cover
extremely large areas and may present
less hazard because they tend to be in
drier climates, reducing leaching
potential, or contain constituents that
are less mobile. For these reasons,
which formed the basis of EPA's
decision under RCRA, RCRA
requirements would not be relevant and
appropriate for mining sites remediated
under CERCLA. Commenters requested
that EPA give guidance specifically in
the NCP to ensure consistent decisions
on ARARs at mining sites.
EPA agrees that RCRA requirements
for hazardous waste will not be
applicable to those mining wastes
excluded from regulation by the statute.
(Note, however, that EPA has recently
removed certain mineral processing
wastes from the mining waste exclusion,
making them subject to subtitle C, 54 FR
36592, September 1,1989; 55 FR 2322,
January 23,1990. EPA has also
promulgated regulations listing certain
wastes from mineral processing
operations as hazardous, 53 FR 35412,
September 13.1988.) In addition, EPA
agrees that RCRA subtitle C
requirements will generally not be
-------
8764
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
relevant and appropriate for those
mining wastes for which EPA has
specifically determined that such
regulation is not warranted. The reason
is that the factors that caused EPA not
to regulate these wastes as hazardous
include many of the same factors that
EPA considers in judging whether a
requirement is relevant and appropriate
at a particular site.
However, EPA does not agree that
RCRA requirements for hazardous
waste can never be relevant and
appropriate for CERCLA remediation of
mining sites. In its determination for
beneficiation and extraction wastes,
EPA found that, "if universally applied,"
subtitle C requirements would not be
appropriate for mining wastes. (51 FR
24500.) However, a decision about
whether a requirement is relevant and
appropriate is made on a case-by-case
basis, based on the specific
characteristics of the site and the
release. There may be some sites where
the site circumstances differ
significantly from those which caused
EPA to decide that subtitle C regulation
is not warranted and where certain
requirements are appropriate and well-
suited to the site or portions of the site.
In such a situation, some RCRA
requirements may be relevant and
appropriate.
EPA is developing regulations under
subtitle D of RCRA designed specifically
for mining wastes that will not be
regulated as hazardous waste. When
promulgated, these regulations are likely
to be either applicable or relevant and
appropriate for remediation of mining
sites.
Another commenter stated that EPA
needs to develop a long-term initiative
to simplify the use of RCRA ARARs.
EPA recognizes that the interaction
between the two laws can be very
complicated and continues to work to
resolve and give guidance on issues
involving CERCLA compliance with
RCRA laws.
Final rule: There is no rule language
on this issue.
Name: Examples of potential federal
and state ARARs and TBCs.
Potential ARARs and TBCs include.
but are not limited to, the following:
1. Federal requirements which may be
potential applicable or relevant and
appropriate requirements, i. EPA's
Office of Solid Waste administers, inter
alia, the Resource Conservation and
Recovery Act of 1976, as amended, (42
U.S.C. 6901). Potentially applicable or
relevant and appropriate requirements
pursuant to that Act are:
a. Open Dump Criteria—Pursuant to
RCRA subtitle D criteria for
classification of solid waste disposal
facilities (40 CFR part 257).
Note: Only relevant to nonhazardous
wastes.
b. RCRA subtitle C requirements
governing standards for owners and
operators of hazardous waste treatment,
storage, and disposal facilities: (40 CFR
part 264, for permitted facilities, and 40
CFR part 265, for interim status
facilities):
(1) Ground-Water Protection and
Monitoring (40 CFR 264.90-264.109).
(2) Closure and Post Closure (40 CFR
264.110-264.120).
(3) Containers (40 CFR 264.170-
264.178).
(4) Tanks (40 CFR 264.100-264.199).
(5) Surface Impoundments (40 CFR
264.220-264.249).
(6) Waste Piles (40 CFR 264.250-
264.269).
(7) Land Treatment (40 CFR 264.270-
264.299).
(8) Landfills (40 CFR 264.300-264.339).
(9) Incinerators (40 CFR 264.340-
264.999).
(10) Land Disposal Restrictions (40
CFR 268.1-268.50).
(11) Dioxin-containing wastes (50 FR
1978).
(12) Standards of performance for
storage vessels for petroleum liquids (40
CFR part 60, subparts K and K(a)).
(13) Codification rule for 1984 RCRA
amendments (50 FR 28702, July 15,1985;
52 FR 45788, December 1,1987).
ii. EPA's Office of Water administers
several potentially applicable or
relevant and appropriate statutes and
regulations issued thereunder:
a. Section 14.2 of the Public Health
Service Act as amended by the Safe
Drinking Water Act, as amended. (42
U.S.C. 300(f)).
(1) Maximum Contaminant Levels (for
all sources of drinking water exposure).
(40 CFR 141.11-141.16).
(2) Maximum Contaminant Level
Goals (40 CFR 141.50-141.52,50 FR
46936).
(3) Underground Injection Control
Regulations (40 CFR parts 144,145.146,
147).
b. Clean Water Act. as amended. (33
U.S.C. 1251).
(1) Requirements established pursuant
to sections 301, 302,303 (including state
water quality standards), 304,306,307,
(including federal pretreatment
requirements for discharge into a
publicly owned treatment works), 308,
402,403 and 404 of the Clean Water Act.
(33 CFR parts 320-330, 40 CFR parts 122,
123.125,131. 230, 231. 233. 400-489).
(2) Available federal water quality
criteria documents are listed at 45 FR
79318, November 28,1980; 49 FR 5831,
February 15,1984; 50 FR 30784. July 29.
1985; 51 FR 8012, March 7,1986; 51 FR
22978, June 28,1986; 51 FR 43665.
December 3,1986; 52 FR 6213. March 2,
1987; 53 FR 177, January 5,1988; 53 FR
19028, May 26,1988; 53 FR 33177, August
30.1988; 54 FR 19227, May 4.1989.
(3) Clean Water Act section 404(b)(l)
Guidelines for Specification of Disposal
Sites for Dredged or Fill Material (40
CFR part 230).
(4) Procedures for Denial or
Restriction of Disposal Sites for Dredged
Material (Clean Water Act section
404(c) Procedures, 33 CFR parts 320-330,
40 CFR part 231).
c. Marine Protection. Research, and
Sanctuaries Act (33 U.S.C. 1401). (1)
Incineration at sea requirements (40
CFR parts 220-225,227-229. See also 40
CFR 125.120-125.124).
iii. EPA's Office of Pesticides and
Toxic Substances administers the Toxic
Substances Control Act (15 U.S.C. 2601).
Potentially applicable or relevant and
appropriate requirements pursuant to
that Act are:
PCB requirements generally: 40 CFR part
761; Manufacturing, Processing, Distribution
in Commerce, and Use of PCBs and PCB
Items (40 CFR 781.20-761.30); Markings of
PCBs and PCB Items (40 CFR 761.40-761.45):
Storage and Disposal (40 CFR 761.60-761.79);
Records and Reports (40 CFR 761.180-761.185,
761.187 and 761.193). See also 40 CFR 129.105,
750.
iv. EPA's Office of External Affairs
administers potentially applicable or
relevant and appropriate requirements
regarding requirements for floodplains
and wetlands (40 CFR part 6, Appendix
A).
v. EPA's Office of Air and Radiation
administers several potentially
applicable or relevant and appropriate
statutes and regulations issued
thereunder
a. The Uranium Mill Tailings
Radiation Control Act of 1978 (42 U.S.C.
2022) and Health and Environmental
Protection Standards for Uranium and
Thorium Mill Tailings (40 CFR part 192).
b. Clean Air Act (42 U.S.C. 7401). (1)
National Primary and Secondary
Ambient Air Quality Standards (40 CFR
part 50).
(2) Standards for Protection Against
Radiation (10 CFR part 20). See also 10
CFR parts 10,40,60. 61, 72,960, 961.
(3) National Emission Standards for
Hazardous Air Pollutants (40 CFR part
61). See also 40 CFR 427.110-427.116.
763.
(4) New source performance
standards (40 CFR part 60).
vi. Other Federal Requirements:
a. National Historic Preservation Act
(16 U.S.C. 470). Compliance with NHPA
-------
Federal Register / Vol. 55. No. 46 / Thursday, March 8. 1990 / Rules and Regulations
8765
required pursuant to 7 CFR part 650.
Protection of Archaeological Resources:
Uniform Regulations—Department of
Defense (32 CFR part 229), Department
of the Interior (43 CFR part 7).
b. DOT Rules for the Transportation
of Hazardous Materials, 49 CFR parts
107.171,172.
c. The following requirements are also
potentially ARAR:
(1) Endangered Species Act of 1973 (16
U.S.C. 1531). Generally, 50 CFR parts 81.
225.402.
(2) Wild and Scenic Rivers Act (16
U.S.C. 1271).
(3) Fish and Wildlife Coordination Act
(16 U.S.C. 661).
(4) Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. 136). 40 CFR
part 165.
(5) Wilderness Act (16 U.S.C. 1131).
(6) Coastal Barriers Resources Act (16
U.S.C. 3501).
(7) Surface Mining Control and
Reclamation Act (30 U.S.C. 1201).
(8) Coastal Zone Management Act of
1972 (16 U.S.C. 1451). Generally, 15 CFR
part 930 and 15 CFR 923.45 for Air and
Water Pollution Control Requirements.
(9) Magnuson Fishery Conservation
and Management Act (16 U.S.C. 1801 et
seq.).
(10) Marine Mammal Protection Act
(16 U.S.C. 1361 et seq.).
2. Examples of potential state ARARs.
i. State requirements for disposal and
transport of radioactive wastes.
ii. State approval of water supply
system additions or developments.
iii. State ground-water withdrawal
approvals.
iv. Requirements of authorized
(subtitle C of RCRA) state hazardous
waste programs.
v. State Implementation Plans (SIPs)
and delegated programs under the Clean
Air Act.
vi. Approved state NPDES program
under the Clean Water Act.
vii. Approved state underground
injection control (UIC) programs under
the Safe Drinking Water Act.
viii. Approved state wellhead
protection programs.
ix. State water quality standards.
x. State air toxics regulations.
3. Other federal criteria, advisories,
and guidance, to be considered, i.
Federal Criteria, Advisories, and
Procedures.
a. Health Effects Assessments (HEAs)
and Proposed HEAs ("Health Effects
Assessment Summary Tables," updated
quarterly).
b. Reference Doses (RfDs) ("Health
Effects Assessment Summary Tables,"
updated quarterly, or "Integrated Risk
Information System (IRIS)." updated
monthly).
c. Slope Factors for Carcinogens
("Health Effects Assessment Summary
Tables," updated quarterly, or
"Integrated Risk Information System
(IRIS)," updated monthly).
d. Pesticide registrations and
registration data.
e. Pesticide and food additive
tolerances and action levels.
Note: Germane portions of tolerances and
action levels may be pertinent and therefore
are to be considered in certain situations.
f. PCB Spill Cleanup Policy (52 FR
10688, April 2.1987).
g. Waste load allocation procedures
(40 CFR parts 125,130).
h. Federal sole source aquifer
requirements (52 FR 6873, March 5,
1987).
i. Public health basis for the decision
to list pollutants as hazardous under
section 112 of the Clean Air Act.
j. EPA's Ground-Water Protection
Strategy.
k. Guidance on Remedial Actions for
Contaminated Ground Water at
Superfund Sites (Draft, October 1986)
establishes criteria for the use of
background concentrations and ACLs.
1. Superfund Public Health Evaluation
Manual.
m. TSCA health data.
n. TSCA chemical advisories.
o. ATSDR Toxicological Profiles.
p. Advisories issued by FWS and
NWFS under the Fish and Wildlife
Coordination Act.
q. TSCA Compliance Program Policy
("TSCA Enforcement Guidance Manual
Policy Compendium," USEPA, OECM,
OPTS, March 1985).
r. Health Advisories. EPA Office of
Water.
s. EPA/DOT Guidance Manual on
Hazardous Waste Transportation.
ii. USEPA RCRA Guidance
Documents.
a. Alternate Concentration Limits
(ACL) Guidance (draft).
b. EPA's RCRA Design Guidelines.
(1) Surface Impoundments—Liner
Systems, Final Cover, and Freeboard
Control.
(2) Waste Pile Design—Liner Systems.
(3) Land Treatment Units.
(4) Landfill Design—Liner Systems
and Final Cover.
c. Permitting Guidance Manuals.
(1) Permit Applicant's Guidance
Manual for Hazardous Waste Land
Treatment. Storage, and Disposal
Facilities,
(2) Permit Applicant's Guidance
Manual for the General Facility
Standards of 40 CFR 264.
(3) Permit Writer's Guidance Manual
for Hazardous Waste Land Treatment,
Storage, and Disposal Facilities.
(4) Permit Writer's Guidance Manual
for the Location of Hazardous Waste
Land Storage and Disposal Facilities:
Phase I, Criteria for Location
Acceptability and Existing Regulations
for Evaluating Locations.
(5) Permit Writer's Guidance Manual
for Subpart F.
(6) Permit Applicant's Guidance
Manual for the General Facility
Standards.
(7) Waste Analysis Plan Guidance
Manual.
(8) Permit Writer's Guidance Manual
for Hazardous Waste Tanks.
(9) Model Permit Application for
Existing Incinerators.
(10) Guidance Manual for Evaluating
Permit Applications for the Operation of
Hazardous Waste Incinerator Units.
(11) A Guide for Preparing RCRA
Permit Applications for Existing Storage
Facilities.
(12) Guidance Manual on Closure and
Post-Closure Interim Status Standards.
d. Technical Resource Documents
(TRDs).
(1) RCRA Ground-Water Monitoring
Technical Enforcement Guidance
Document.
(2) Evaluating Cover Systems for Solid
and Hazardous Waste.
(3) Hydrologic Simulation of Solid
Waste Disposal Sites.
(4) Landfill and Surface Impoundment
Performance Evaluation.
(5) Lining of Water Impoundment and
Disposal Facilities.
(6) Management of Hazardous Waste
Leachate.
(7) Guide to the Disposal of
Chemically Stabilized and Solidified
Waste.
(8) Closure of Hazardous Waste
Surface Impoundments.
(9) Hazardous Waste Land Treatment.
(10) Soil Properties, Classification,
and Hydraulic Conductivity Testing.
e. Test Methods for Evaluating Solid
Waste.
(1) Solid Waste Leaching Procedure
Manual.
(2) Methods for the Prediction of
Leachate Plume Migration and Mixing.
(3) Hydrologic Evaluation of Landfill
Performance (HELP) Model Hydrologic
Simulation and Solid Waste Disposal
Sites.
(4) Procedures for Modeling Flow
Through Clay Liners to Determine
Required Liner Thickness.
(5) Test Methods for Evaluating Solid
Wastes.
(6) A Method for Determining the
Compatability of Hazardous Wastes.
(7) Guidance Manual on Hazardous
Waste Compatability.
-------
8766 Federal Register / Vol. 55. No. 46 / Thursday, March 8, 1990 / Rules and Regulations
iii. USEPA Office of Water Guidance
Documents.
a. Pretreatment Guidance Documents.
(1) 304(g) Guidance Document on
Revised Pretreatment Guidelines (3
volumes).
b. Water Quality Guidance
Documents. (1) Ecological Evaluation of
Proposed Discharge of Dredged Material
into Ocean Waters (1977).
(2) Technical Support Manual:
Waterbody Surveys and Assessments
for Conducting Use Attainability
Analyses (1983).
(3) Water-Related Environmental Fate
of 129 Priority Pollutants (1979).
(4) Water Quality Standards
Handbook (1983).
(5) Technical Support Document for
Water Quality-Based Toxics Control.
(6) Developing Requirements for
Direct and Indirect Discharges of
CERCLA Wastewater (1987).
c. NPDES Guidance Documents. (1)
NPDES Best Management Practices
Guidance Manual (June 1981).
(2) Case studies on toxicity reduction
evaluation (May 1983).
d. Ground Water/UIC Guidance
Documents. (1) Designation of a USDW.
(2) Elements of Aquifer Identification.
(3) Definition of major facilities.
(4) Corrective action requirements.
(5) Requirements applicable to wells
injecting into, through, or above an
aquifer that has been exempted
pursuant to 40 CFR 146.104(b)(4).
(6) Guidance for UIC implementation
on Indian lands.
e. Clean Water Act Guidance
Documents.
f. Guidance for Applicants for State
Well Head Protection Program
Assistance Funds under the Safe
Drinking Water Act (Office of Ground-
Water Protection, June 1987).
iv. USEPA Manuals from the Office of
Research and Development.
a. EW 846 methods—laboratory
analytic methods.
b. Lab protocols developed pursuant
to Clean Water Act section 304(h).
v. Other.
a. Data Quality Objectives. Volumes I
and II.
b. Guidance for Conducting Remedial
Investigations and Feasibility Studies
Under CERCLA (Draft).
c. Guidance on Preparing Superfund
Decision Document: The Proposed Plan
and Record of Decision (Draft).
d. Standard Operating Safety Guides.
Community Relations
Name: Sections 300.430(c), 300.430(f)
(2), (3) and (6). Community relations
during RI/FS and selection of remedy.
Existing rule: Sections 300.67(a) and
(c) require the lead agency to develop
and implement a community relations
plan (CRP) at NPL sites prior to
initiation of field activities. In the case
of removal actions or other short-term
actions, § 300.67(b) requires that a
spokesperson be designated and a CRP
prepared if the action exceeds 45 days.
Section 300.67(d) states that the lead
agency must provide the public with not
less than 21 calendar days to review and
comment on the feasibility study (FS).
Public meetings should be held during
the comment period and the lead agency
may also provide the public with an
opportunity to comment during the
development of the FS. A document
summarizing major issues raised by the
public is required by § 300.67(e). The
summary must include how the issues
are addressed. Section 300.67(f)
indicates that in enforcement actions,
the CRP and public review of the FS
may be modified or adjusted at the
direction of the court. Section 300.67(g)
states that when responsible parties
implement site remedies, the lead
agency shall provide public notice and a
30-day comment period. In addition, a
document summarizing the major issues
raised by the public and how they are
addressed must be prepared.
Proposed rule: In the 1986
amendments to CERCLA, Congress
added a new section 117 to provide for
involvement by the public in Superfund
decision-making. The NCP incorporates
these new statutory requirements and
those in existing policy, as well as
several additional requirements based
on program experience.
Proposed § 300.430(c) requires the
lead agency, to the extent practicable
prior to commencing field work for the
remedial investigation (RI), to conduct
community interviews, prepare a formal
CRP, and to establish a local
information repository. Section
300.430(f) requires that a proposed plan
be prepared. After preparation of the
proposed plan, § 300.430(f)(2) requires
the lead agency to publish a notice of
availability and brief analysis of the
proposed plan, make the proposed plan
available in the administrative record,
provide a public comment period of not
less than 30 calendar days on the
proposed plan and supporting analysis
and information, including the RI/FS,
provide an opportunity for a public
meeting, keep a transcript of the public
meeting and make it available to the
public, prepare a written summary of
significant comments submitted along
with the lead agency response, and
make the summary available with the
record of decision (ROD). When the
ROD is signed. 5 300.430(0(5)
(J 300.430(f)(6) in the final rule) requires
the lead agency to publish a notice of
availability and make the ROD
available for public inspection prior to
the start of remedial action. Section
300.815(a) requires the lead agency to
make the administrative record file
available for public inspection when the
RI begins.
General discussion: CERCLA
establishes the basic framework for
community relations activities during
response actions. Consistent with the
flexibility provided by CERCLA and to
allow public participation activities to
be tailored to site-specific
circumstances, the NCP specifies the
minimum level of public involvement
but does not preclude the lead agency
from undertaking additional public
involvement activities where
appropriate. EPA has implemented a
variety of additional public involvement
activities at Superfund sites over the
past nine years that have proven helpful
to affected communities in
understanding and participating in
response action decision-making.
Shortly after the completion of the
public comment period on the proposed
NCP last year, EPA issued "A
Management Review of the Superfund
Program," William K. Reilly,
Administrator, U.S. Environmental
Protection Agency. One aspect of the
study was community involvement. The
study includes a series of
recommendations, some of which
reinforce existing practices while others
present new ideas. Many specific
recommendations in this report are
consistent with requirements in the final
rule. Other ideas discussed in the
management review are highlighted in
today's preamble as further examples of
good program practice that encourage
public involvement.
Public participation and involvement
is also a major focus of administrative
record requirements under subpart I.
Requirements and recommendations on
subparts E and I on public participation
interrelate to a large degree. Therefore,
there is some discussion in this section
of today's preamble on the
administrative record.
Response to comments: Many
comments were received on the
community relations requirements in the
NCP. Some commenters addressed the
organization of community relations
requirements in the proposed NCP. One
commenter supported the reorganization
of community relations requirements
with the actions to which they apply.
Another commenter stated that the
requirements should be in a separate
subpart with subsections corresponding
to the phases of the process.
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations 8767
EPA disagrees that community
relations should be in a separate
subpart. EPA purposely reorganized the
placement of community relations
requirements in order to ensure a clearer
and more orderly integration of
community relations into each
appropriate phase of the Superfund
process.
Several commenters recommended
increased opportunities for public
participation, while one commenter
suggested that the proposed community
relations procedures that exceed those
required by CERCLA may hinder timely
cleanup efforts. The commenters
recommending increased participation
asserted that the NCP should specify
formal public involvement throughout
the entire process, beginning with
notification to communities at the
preliminary assessment/site inspection
(PA/SI] stage and continuing through
site closure and deletion. A commenter
stated that the Superfund process should
include regular input from the
community and another commenter
suggested that the public should be
informed about the project and any
problems that may arise in the short and
long term. Several commenters stated
that investigators should use citizens as
a source of information about sites in
their communities.
In response, EPA does not agree that
the proposed community relations
requirements will hinder timely
cleanups because such requirements
have been carefully integrated into the
response process so as not to interfere
with other activities necessary for
cleanup. EPA encourages the lead
agency to involve the interested public
through all stages of the cleanup process
and to be responsive to the
communications needs of communities
near Superfund sites. It is EPA's
experience, however, that not all
communities desire or request a
multitude of public involvement
activities. Moreover, the degree of
appropriate involvement will vary with
the characteristics of the site and the
nature of the response. Therefore, EPA
believes that it is inappropriate to
specify in a general rule, such as the
NCP, a detailed regimen of all potential
public involvement activities that may
be appropriate or desirable in certain
situations. Thus, EPA believes that the
provisions in the NCP which incorporate
statutory requirements and basic
community relations activities which
EPA has found through experience to be
necessary, establish adequate minimum
public involvement requirements for all
Superfund sites.
If, however, members of a community
desire more opportunities for
participation or involvement than
specified in the NCP, for example, public
involvement activities as early as the
PA/SI stage, they may request that the
lead agency conduct such activities.
Informal contact with interested
community members and local officials
during the early stages of the response
process may be desirable, for example.
in communities where it is suspected
that the site presents a high risk to the
population or where there is significant
citizen interest. A mailing list of
interested community members could be
compiled at this stage as necessary to
implement public involvement activities.
Moreover, a fact sheet could be
prepared during the SI to explain the
purpose of the SI and its possible
outcomes.
EPA agrees that interviews of
residents of the community can be a
major source of information about
conditions at and the history of a site.
Through such interviews, the lead
agency can also identify community-
specific interests and concerns and may
also gather information helpful in
identifying PRPs. The NCP includes
community interviews as part of the
public involvement activities to be
conducted at Superfund sites.
Another commenter suggested that the
public should be involved through
meetings and comment periods before
the proposed plan is issued. One
commenter suggested that the lead
agency be required to hold a public
meeting on the work plan for the Rl and
that the community should be allowed
to review the RI report. The commenter
further suggested that written
responsiveness summaries be prepared
by the lead agency for the comments
raised at the public meeting on the RI.
Another commenter felt that the public
should receive more education about the
ramifications of investigation results. In
addition, a commenter asserted that
information on risk should be included
in RI/FS reports and should be
explained to the public.
The NCP provides one formal
comment period on the proposed
response action at all sites (except
certain time-critical removals). In
addition, the administrative record is
available for public review prior to, and
following, the formal comment period.
While EPA agrees that additional
comment periods and meetings, both
formal and informal, may be appropriate
and desirable at certain sites, decisions
on what type of additional formal public
involvement activities are warranted
must be made on a site-specific basis,
and thus are not mandated in the NCP.
If a person needs more information
about a site, he/she may, at any time in
the remedial process, review the
ongoing compilation of documents in the
administrative record file or request that
the lead agency conduct a public
briefing or workshop in addition to that
required by the NCP. EPA may conduct
a public briefing on the RI work plan or
provide some other type of public
information meeting when there is
sufficient public interest. EPA
encourages all lead agencies to consider
such activities. Similarly, if a person
needs more explanation concerning the
RI and risk assessment and
ramifications associated with them (a
description of the risk posed by a site
generally is included in the RI report),
he/she can request that the lead agency
conduct a public briefing. Lead agencies
are encouraged but not required to
prepare a responsiveness summary for
any comments submitted outside of
formal comment periods.
Several commenters addressed the
development of CRPs. One commenter
argued that the start of community
interviews should be publicized and
should include mention of the
availability of technical assistance
grants (TAGs). Another commenter
objected to the limited, nonsubstantive
nature of community interviews. Other
commenters said there should be more
community involvement in developing
CRPs and that they should be a "two-
way communications tool", rather than
a "one-way dialogue" or "sell job" from
the agency to the community. Additional
commenters suggested that the
community should review drafts of the
CRP.
EPA does not agree that the lead
agency must publish a notice in a
newspaper on the initiation of
community interviews. The lead agency
generally will give notice to key
community leaders that interviews are
being conducted. Every effort is made to
obtain a broad representation of the
community in selecting individuals to
interview and additional names may be
gathered during the interview process.
The NCP identifies local officials,
community residents, public interest
groups, or other interested or affected
parties as individuals to interview, but
this is not meant to be an all inclusive
list. EPA believes that any and all
interested parties are potential
interviewees. EPA has added the
requirement that the lead agency inforn
the members of the community of the
availability of technical assistance
grants (TAGs). In response to comment
that the community should review draf
-------
8768
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
of the CRP, generally it is not EPA's
practice to publicly release draft
documents in order to protect the lead
agency's deliberative process. However.
persons may submit comments on the
final CRP to the lead agency, which
may, as appropriate, revise the CRP in
response to these comments. And, in
fact, since the CRP is itself a public
involvement tool, lead agencies may
modify public outreach activities based
on the interviews or other information
obtained through implementation of the
CRP.
During the community interviews, the
lead agency is required to determine
"how and when citizens would like to be
involved in the Superfund program."
Once this is known, the public
participation activities desired can be
planned and implemented on a site-
specific basis appropriate to the level of
interest within that community. These
activities will be described in the CRP
that is developed for each site.
Therefore, because the interviews are
the primary source of information to the
lead agency about community concerns,
and such information is used to develop
the CRP, EPA does not agree with the
commenters' description of the CRP as a
"one-way dialogue" or "sell job." EPA
intends that there be extensive public
involvement in developing the CRP,
namely in identifying community
concerns about the site and in
determining the appropriate
opportunities for community
involvement in site activities.
However, because such comments
were received revealing an apparent
misunderstanding of the CRP, EPA is
revising § 300.430(c) to clarify the
purpose of the CRP which is: (1) To
ensure that the public receives
appropriate opportunities for
involvement in a wide variety of site-
related decisions, including during site
analysis and characterization,
alternatives analysis, and selection of
remedy; (2) to determine, based on
community interviews, appropriate
activities to ensure such public
involvement; and (3) to provide
appropriate opportunities for the
community to learn about the site.
One commenter claimed that while
potentially responsible parties (PRPs)
are involved at every step of the
remedial process, citizens are shut out of
decision-making concerning the scope of
the sampling programs, definitions of
affected populations, assumptions made
during risk assessments, establishment
of remedial action objectives, and many
other issues that are central to the final
selection of remedy. Other comments
were received on the availability and
accessibility of information. One
commenter observed that information
repositories should be locally available.
Several commenters suggested that free
copies of documents should be made
available and the repository should
include an index to facilitate document
retrieval. One commenter stated that
there should be citizen review of
contractor reports.
EPA agrees that the lead agency
should provide citizens and PRPs with
access to the same technical information
about the site throughout the cleanup
process and believes that the NCP
provides this access. As required by the
statute, the NCP provides for the
establishment and public availability of
the administrative record files for each
response action. These files generally
will become available early in the
decision-making process and will
include the types of documents
mentioned by the commenter. Members
of the public are provided an
opportunity and are encouraged to
review the documents prior to or during
the comment period. In addition, citizen
understanding of complex, technical
issues will be improved if lead agencies
and PRPs. where conducting response
actions, produce clear and
understandable summaries of technical
documents. EPA intends to work with
PRPs in the preparation of summaries of
technical documents for the public to the
extent that summaries are not already
included in fact sheets, updates, and the
proposed plan. Lead agencies should
provide copies of these summaries in the
information repository and, where
appropriate, the administrative record
file.
In addition to the administrative
record file discussed above, the NCP
further requires that the lead agency
establish an information repository
before field work for the RI begins. Like
the administrative record, the
information repository is located at or
near the site. This repository should
contain a copy of items made available
to the public, including, unlike the
administrative record file, those not
directly related to selecting a remedy.
EPA generally provides for reasonable
access to documents by making
information repositories convenient to
the interested public, in terms of
location, operating hours and copying
facilities, and by indexing the materials.
Lead agency staff should complete any
necessary reviews of documents as
quickly as possible so they can be
released to the public and placed in the
information repository and the
administrative record file. The public
should receive notice of the availability
of documents through fact sheets or
other mailings.
In response to the comment that
citizens should be able to review
contractor reports, EPA stresses that the
lead agency creates an administrative
record file containing those documents
that form the basis for the selection of a
response action. Reports developed by
contractors that are relevant to response
selection will be included in the
administrative record file. EPA is not
requiring, however, that all contractor
reports be made available to the public.
Contractor reports that are not relevant
to response selection decision-making
are not part of the administrative record
(see subpart I of the NCP for a
discussion of the administrative record).
Another commenter asserted that EPA
should notify the public of meetings with
PRPs and allow a citizen representative
to be present. Related to this issue,
another commenter requested
clarification of the provision in the
proposed NCP allowing the lead agency
to conduct technical discussions with
PRPs and the public separately from, but
contemporaneously with, negotiation/
settlement discussions. One commenter
recommended that citizen advisory
committees be created as a part of the
Superfund community relations process
to facilitate a partnership between EPA
and community representatives.
The rule does allow for technical
discussions involving responsible
parties and the public. They are,
however, to be held separately from
settlement negotiation discussions in
which information on liability of a party
and other enforcement sensitive issues
are discussed. Lead agencies should,
however, bring citizens into technical
discussions early in the RI/FS process.
Some mechanisms, such as community
work groups, task groups and
information committees, have proven
successful in bringing together citizens,
local government officials, and PRPs.
EPA encourages communities to form
work groups and to keep these work
groups informed about lead agency
actions. EPA, however, is not revising
the NCP to require the establishment of
more formal groups such as citizen
advisory committees. Such committees
may not be necessary or appropriate for
every site. Further. If EPA were to
establish formal citizen advisory
committees, they may be subject to the
Federal Advisory Committee Act which
sets specific restrictions on the
composition and conduct of such
committees.
Several commenters indicated that the
language in subpart I on administrative
record, stating that EPA is not required
-------
Federal Register / Vol. 55, No. 46 / Thursday. March 8, 1990 / Rules and Regulations 8769
to respond to comments submitted
before the public comment period, sends
the wrong message regarding EPA's
interest in public participation. The
commenters urged EPA to encourage
response to early comments, thereby
improving decision-making. Another
commenter asked that the public be
provided not only a summary of the
support agency's comments on the
proposed plan but the lead agency's
response to those comments as well.
Although EPA agrees that a prompt
response to comments is desirable in
most cases, EPA is only requiring a
formal response to comments to be
prepared after the close of the public
comment period on the proposed plan.
EPA is not requiring that comments
received before the public comment
period be responded to before the
comment period for several reasons.
First, it is likely that the lead agency
would not have enough information to
sufficiently respond to some comments
early in the process of investigating and
analyzing sites or prior to receipt and
consideration of all public comments.
Second, if the NCP required comments
(e.g., PRP volumes of comments and
studies) to be responded to as they were
received, site managers could
continually be diverted from their site
cleanup tasks to spend time responding
to comments. The NCP, therefore,
requires that comments must be
responded to only during specific times
in the process. The NCP requires that
the lead agency summarize the
comments received during the comment
period on the proposed plan and provide
its response to these comments. This
document, the "responsiveness
summary," is part of the record of
decision, and is placed in the
administrative record file. Site managers
may respond to comments received at
other times at their discretion. However,
as discussed in the preamble to subpart
I, EPA has revised the rule to encourage
lead agencies to respond to significant
comments submitted prior to the formal
comment period.
Other commenters said there should
be additional communication with the
public, such as more public meetings,
direct mailings, and an improved
notification system. A commenter
suggested that the lead agency should
be required to compile a site mailing list.
EPA encourages such additional
communication with the public hi order
to respond to their information requests.
The lead agency will determine what is
the most effective notification system
for a particular site. Therefore, EPA
believes that it is not appropriate or
necessary in the NCP to require such
activities, e.g., a site mailing list, at all
sites.
Some commenters suggested that the
NCP require the lead agency to make
available at public meetings conducted
to discuss the proposed plan, those
consultants or lead agency
representatives who prepared the RI/FS
and selected the response.
EPA does not agree that it is
necessary for the NCP to require at
every site that the consultants who
aided in the development of the
proposed plan or RI/FS attend public
meetings on the proposed plan. The lead
agency is responsible for conducting
such meetings and the presence of
consultants is not always necessary in
order for the lead agency to explain the
proposed remedy and the supporting
analyses and to respond to questions
asked by the public.
A series of commenters addressed the
specifics of the technical assistance
grant (TAG) program, the timing of TAG
awards in the remedial process, and
how TAGs should be implemented. One
commenter stated that TAG should be
integrated into the community relations
provisions of the NCP. Another
commenter recommended that TAGs be
referenced or directly incorporated in
the NCP in order to assist in promoting
participation in the TAG program. A
commenter offered specific language to
be inserted into the NCP, which would
include stating that EPA would
encourage citizens to apply for TAGs.
Specific comments on the TAG
program will be addressed in the TAG
final rule. However, EPA does agree that
TAGs also should be discussed in the
NCP. Specifically, the availability of
TAGs is now referenced in § 300.430(c).
By including a reference to TAGs in the
NCP, EPA intends to encourage citizens
to apply for TAGs.
Additionally, EPA encourages PRPs to
provide grants to communities to enable
them to obtain independent technical
assistance as a complement to, and
separate from, the EPA TAG program.
EPA can provide information and advice
to PRPs and communities regarding how
such PRP grants have been used
successfully at other Superfund sites.
A commenter stated that the cleanup
process in general, from the RI/FS to
remedy selection, is hindered by a lack
of a free flow of information between
lead agencies and PRPs. Commenters
argued that PRPs need increased
opportunity to participate in the
decision-making process. They
recommended that the NCP provide an
opportunity for PRPs to receive copies of
and to formally comment on all key EPA
decision documents, including the work
plan, sampling results, the risk
assessment, and the detailed remedial
studies. One commenter contended that
allowing PRPs to comment only on the
proposed plan limited PRPs from
developing the administrative record in
a meaningful way, violated their due
process rights, and was contrary to the
intent of CERCLA. Another commenter
suggested that there should be a formal
mechanism for PRPs to participate in the
development of the administrative
record with regard to the selection of
remedy.
In response to the comments
suggesting more PRP involvement EPA
believes that the NCP provides
numerous opportunities for PRP
involvement. When the lead agency
identifies PRPs. they are presented with
the opportunity to undertake the
remedial investigation and feasibility
study and cleanup under lead agency
oversight. If PRPs choose not to
undertake these tasks, they are provided
with the same opportunities for
involvement in site cleanup decisions
that the general public is afforded. The
regulations promulgated today require
that some of the documents specifically
requested by some commenters
(sampling results, risk assessments, and
others] are placed in the administrative
record file as soon as they are available
for public review. Such documents may
be commented on during the comment
period on the proposed plan. The NCP
provides PRPs with a full opportunity to
comment on key decision documents,
not just the proposed plan, and to
participate in the development of the
administrative record. Thus, public
involvement opportunities provided by
the NCP are fully consistent with
congressional intent and any due
process requirements. Subpart I also
includes a discussion of the
development of the administrative
record.
One commenter asserted that states
should have discretion to vary the
community relations process, for
example, substituting news releases foi
paid advertisements to announce the
proposed plan, comment periods, and
public meetings; substituting a tape
recording for a written transcript of
public meetings; and shortening the
public comment period in some cases t
less than 30 days.
EPA does not agree that lead agencii
should have discretion to vary the
community relations requirements set
out in the NCP. In order to ensure
adequate minimum public participatio;
at all sites across the nation, EPA
maintains that the lead agency must
-------
8770 Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
comply with the community relations
requirements specified in the NCP.
Final rule; The following additions
are made to proposed § 300.430(c):
1. The purpose of the community
relations plan is described in
S 300.430(c)(2)(ii).
2. A statement on the availability of
technical assistance grants (TAGs) has
been added to S 300.430(c)(2)(iv).
Name: Sections 300.415(m)(2)(ii),
300.430(f)(3)(i)(C) and 300.435(c)(2)(ii)(C).
Length of public comment period.
Existing rule: Section 300.67 requires
a minimum 21-calendar day public
comment period on feasibility studies
that outline alternative remedial
measures.
Proposed rule: Proposed
§ 300.415(n)(2)(ii) (§ 300.415(m)(2)(ii) in
the final rule) required a minimum 30-
day public comment period on the
administrative record, as appropriate,
for time-critical and non-time-critical
removal actions. Proposed
{ 300.430(f)(2)(i)(C) (§ 300.430(f)(3)(i)(C)
in the final rule) and
§ 300.435(c)(2)(ii)(C) required a minimum
30-calendar day public comment period
on the proposed plan and other
documents for remedial actions.
Response to comments: Several
commenters requested that the minimum
duration of the public comment period
for remedial actions be increased. Most
commenters recommended a 60-day
minimum and some recommended at
least a 90- or 120-day period. A few
commenters requested that the minimum
public comment period for non-time-
critical removal actions be increased
from 30 to 60 days. One commenter
requested such an increase for time-
critical and non-time-critical removal
actions.
Many reasons were given for
increasing the minimum comment
period, including that it would allow
more time to review large volumes of
technical information and complex
issues and to obtain technical assistance
in reviewing such information. Some
commenters noted the importance of the
comment period because it is the only
meaningful opportunity to provide input
on the proposed remedial action. One
commenter asserted that selection of a
remedy typically represents an
expenditure of millions of dollars and
that a full airing of the alternatives with
a meaningful opportunity to evaluate
and comment on the alternatives is
warranted to avoid the squandering of
public and private resources. Another
commenter added that a longer
comment period would not threaten the
environment because EPA retains its
ability to respond to imminent threats.
One commenter suggested that a
comment period of less than 30 days
may be adequate for emergency actions
or when the community agrees with the
remedy.
There is no question that the public
comment period should be long enough
to allow sufficient review of the
proposed plan and key documents in the
administrative record file, and should
take into account the length and
complexity of the information under
review at such time. EPA notes that
some if not most of these lengthy
technical documents are placed in the
administrative record file and made
available for public review well before
the start of the comment period, thus
allowing a longer time for review of key
supporting documents. Also, the NCP
does not preclude the lead agency from
extending the period upon request and
such requests have been typically
granted. EPA believes, however, that
because of the importance of the public
comment period to response selection
decision-making, further time for
comment should be explicitly specified
in the NCP. Therefore. EPA has revised
the public comment period for remedial
actions to state that the minimum
comment period to be provided is 30
days but that this period will be
extended an additional 30 days upon
timely request (in order to be "timely," a
request generally must be received
within 2 weeks after the initiation of the
public comment period). The lead
agency may extend the comment period
on its own initiative when it is
appropriate or necessary to do so or
announce from the outset that the
comment period will be longer than 30
days. EPA has also revised the language
on non-time-critical removal actions to
provide that an additional 15 days to the
public comment period will be granted
upon timely request. EPA believes that a
longer (i.e., 30-day) extension for
removal actions is not necessary
because the documents involved
generally are not as lengthy or complex
as for a remedial action. Any further
extensions are within the discretion of
the lead agency. This change is also
consistent with the Superfund
management review referenced above,
which specifically recommended
extending the comment period for
remedial actions an additional 30 days,
upon request.
Final rule: The final rule will be
revised as follows:
1. Add to { 300.415(m){4)(iii): "Upon
timely request, the lead agency will
extend the public comment period by a
minimum of 15 additional days."
2. Add to 15 300.430(f)(3)(i)(C) and
300.435{c)(2)(ii)(C): "Upon timely
request, the lead agency will extend the
public comment period by a miniimiip of
30 additional days."
Name: Section 300.435(c). Community
relations during remedial design/
remedial action.
Existing rule: Section 300.67 addresses
community relations in general, but does
not include community relations
requirements during the RO/RA stage.
Proposed rule: CERCLA section 117(c)
requires publication of an explanation of
significant differences (ESD) if the
action differs in significant respects
from the final plan. Proposed
5 300.435(c) provides for revision of the
community relations plan prior to
initiation of remedial design if necessary
to address new concerns. It also
specifies procedures for publishing an
explanation of significant differences
(ESD) from the ROD and for amending a
ROD. The lead agency is required to
provide an opportunity for public
comment only when it proposes to
amend a ROD.
Response to comments: Many
commenters requested the opportunity
for increased public participation
throughout the post-ROD period. Several
commenters strongly recommended
keeping the public informed about
changes and accomplishments during
design and construction of the remedy.
Some suggested that the states should
continue to be provided with
opportunities for substantial and
meaningful participation through the
post-ROD period. Others stated that the
lead agency should be required to seek
out and respond to observations of
residents near the site during remedial
action. One commenter recommended
that public involvement be mandated in
the NCP until final closure, stating that
such action would encourage teamwork
and reduce adversarial relationships
and distrust during cleanups.
Some commenters objected to the
proposed requirement for revising the
community relations plan because it is
not required by statute and will further
slow down the cleanup process. One
suggested that press releases will satisfy
information needs of the community.
Some commenters stated that
community relations activities during
RD/RA other than those specified
should be determined on a site-by-site
basis at the discretion of the lead
agency. Such activities should reflect the
degree of public concern communicated
through the community interviews and
the revision of the CRP.
Another commenter recommended
that a fact sheet be issued or a public
meeting be held prior to completion of
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations 8771
remedial design, that the information
repository should continue to be
maintained and that interviews be
conducted when revising the community
relations plan.
EPA agrees that public participation
throughout the remedial design/
remedial action (RD/RA) stage of the
remedial response is important. It is
EPA's intent to continue to undertake
activities during RD/RA that involve
affected communities and interested
parties in actions taken at a site to
ensure that the concerns of interested
parties are addressed. The proposed
rule provided for revision to the
community relations plan (CRP) during
RD/RA in cases where community
concerns are not already addressed by
the CRP. The final rule requires the lead '
agency to review the CRP prior to the
initiation of the remedial design. This
revision is more proactive than the
proposed rule because it ensures that
the lead agency will reevaluate at every
site the adequacy of the CRP for the RD/
RA phase of response. If further public
involvement activities during RD/RA
are not already described in the CRP,
the CRP will be revised so that an
appropriate level of public involvement
will be maintained. EPA believes that it
is necessary to reassess citizens'
concerns after selection of the remedy in
order to evaluate the effectiveness of
EPA's communications efforts to date
and to determine whether public
involvement concerns have changed as
a result of changes in the community.
EPA recognizes that during the
Superfund process, elected officials may
change and new people may move into
the area. The review of the CRP at the
RD/RA phase will allow the lead agency
to take into account concerns raised by
these new members of the community.
Additionally, in response to comment,
EPA has revised the NCP to require lead
agencies to conduct further public
involvement activities during RD/RA,
including distributing a fact sheet on the
final engineering design to the
community and other interested persons.
The fact sheet will enable the lead
agency to inform the public about
activities related to the final design,
including the schedule for implementing
the remedy, what the site will look like
during operation of the remedy and an
explanation, if appropriate, of the roles
of the various government agencies that
may be involved in the remedial action,
e.g., EPA, the state or the Corps of
Engineers. A fact sheet generally can
contain more information than a press
release so it is preferred as a means of
communication with the public. Site
contingency plans and any potential
inconveniences that may occur, such as
excess traffic or noise, should also be
explained.
EPA is also requiring that a public
briefing be provided, as appropriate,
near the site prior to initiation of the
remedial action. A public briefing could
address issues such as construction
schedules, changes in traffic patterns,
location of monitors, and ways in which
the public will be informed of progress
at the site. EPA believes that these types
of activities can keep the community
fully informed of activities at the site
throughout remedial design and
remedial action.
EPA encourages lead agencies to
develop additional public involvement
activities, in response to the specific
needs of a community. Activities may
include fact sheets on the status of
negotiations with PRPs, continuing to
maintain information repositories, as
well as workshops to assist the public in
understanding how the cleanup
technology will work.
EPA does not agree that such
activities will necessarily lead to
substantial delays at sites. EPA places
high value on full and deliberate public
involvement because EPA believes it is
important that the public is aware of
what is being done in the community. In
addition, the information received from
the public may be helpful in designing
and conducting cleanup activities and in
avoiding misunderstandings that may, in
the long term, disrupt or delay cleanup
efforts.
In response to the comment requesting
that the NCP specify opportunities for
state involvement after the ROD is
signed, the amount of state participation
with respect to an explanation of
significant differences (ESD) is
discussed in the next preamble section.
State involvement during RD/RA will be
specified in site-specific cooperative
agreements or Superfund state contracts
rather than in the NCP (see preamble
section below corresponding to
§ 300.515(g)).
Final rule: Proposed § 300.435(c) is
revised as follows:
1. Under I 300.435(c), the lead agency
is required to review the CRP prior to
the initiation of remedial design to
determine whether the CRP should be
revised to describe further public
involvement activities.
2. Section 300.435(c)(3) is added
requiring the lead agency after the
completion of final engineering design to
distribute a fact sheet and to provide, as
appropriate, a public briefing prior to the
initiation of the remedial action.
Name: Section 300.435(c){2). Changes
to the ROD after its adoption.
Proposed rule: Proposed.
§ 300.435(c)(2) incorporated the
requirements of section 117(c) of
CERCLA that the lead agency publish an
explanation of the significant
differences when significant changes in
the remedy occur after the ROD is
signed, and the section 117(d)
requirement that such publication
include publication in a major local
newspaper of general circulation. In
addition, this section distinguishes
between an explanation of significant
differences, which announces a
significant change in the selected
remedy, and a ROD amendment, which
fundamentally alters the remedy
selected in the ROD.
Section 122(d)(l)(A) of CERCLA
provides that whenever EPA enters into
an agreement under section 122 with
any PRP to undertake a remedial action,
the agreement shall be entered as a
judicial consent decree. Section
122(d)(2) requires that the Department of
Justice (DOJ) provide the public with an
opportunity to comment on the proposed
consent decree at least 30 days prior to
its entry. Where the proposed consent
decree fundamentally alters the ROD,
EPA contemplates that it will issue a
proposed ROD amendment concurrent
with the proposed consent decree, and
that the public comment period provided
pursuant to section 122(d)(2) will satisfy
the requirements for additional public
comment for a ROD amendment.
EPA believes that the appropriate
threshold for amending a ROD is when a
fundamentally different approach to
managing hazardous wastes at a site is
proposed. As a result, EPA has
determined that a change in remedial
approach sufficiently significant to
require ROD amendment should have
the benefit of consideration of public
comments and should, therefore,
undergo the same public and support
agency involvement as the original
ROD, including the publication of a
proposed plan and a public comment
period.
Response to comments: EPA received
several comments requesting
clarification of the different responses to
changes in the remedy after the ROD is
signed during the RD/RA process;
specifically, commenters wanted
clarification of the distinctions between
a significant difference, which requires
an ESD but no public comment, and
fundamental change from the ROD,
which requires a ROD amendment with
public comment.
A number of commenters addressed
the procedures when there are changes
to the ROD after its adoption. Some
commented that it is important to seek
-------
8772 Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
out public input before proposing to
amend the ROD because public
comments are of little use after a
decision has been made. Others argued
that reopening a final decision for
additional public comment can lead to
additional delay and cost in completing
remedial actions. A commenter stated
that CERCLA does not require a ROD
amendment to be subject to public
comment. Several commenters
requested that the lead and support
agencies should concur on proposed
significant changes and ROD
amendments before proposed changes
are announced to the public. One of
these commenters recommended that
the lead agency be required to respond
to a support agency's disagreement with
a proposed ROD amendment in the
notice of availability and in the new
proposed plan.
Many commenters contended that the
distinction between significant
difference and ROD amendment was not
clear and requested clarification. One
commenter recommended that the
public be given the opportunity to
comment on significant changes.
Another commenter recommended that
PRPs have an opportunity to comment
on proposed significant changes.
One commenter recommended that
the preamble to the final NCP state that
the lead agency will reconsider its
remedy when new information indicates
that the selected remedy may not be
cost-effective or is otherwise
inconsistent with the NCP.
EPA responds to the above comments
by clarifying changes to the ROD after
the ROD has been signed. After the ROD
is signed, new information may be
generated during the RD/RA process
that could affect the remedy selected in
the ROD. Three types of changes can
occur (1) Nonsignificant changes; (2)
significant changes; and (3) fundamental
changes. The lead agency must identify
when a remedial action, settlement, or
decree differs significantly from the
ROD.
Nonsignificant changes are minor
changes that usually arise during design
and construction, when modifications
are made to the functional, specifications
of the remedy to optimize performance
and minimize cost. This may result in
minor changes to the type and/or cost of
materials, equipment, facilities, services
and supplies used to implement the
remedy. The lead agency need not
prepare an ESD for minor changes.
These changes should be documented in
the post-ROD file, such as the RD/RA
case file.
Significant changes to a remedy are
generally incremental changes to a
component of a remedy that do not
fundamentally alter the overall remedial
approach. For example, the lead agency
may determine that the attainment of a
newly promulgated requirement is
necessary, based on new scientific
evidence, because the existing ARAR is
no longer protective. Where this new
requirement would affect a basic feature
of the remedy, such as timing or cost,
but not fundamentally alter the remedy
specified in the ROD (i.e., change the
•elected technology), the lead agency
would need to issue an explanation of
significant differences announcing the
change. Another example would be
when sampling during the remedial
design phase indicates the need to
increase the volume of waste material to
be removed and incinerated by 50
percent, requiring an increase in cost, in
order to meet remediation goals. This
increase in the scope of the action
represents a significant change and
requires an ESD. Similarly, the lead
agency may decide to use carbon
adsorption instead of air stripping to
conduct ground-water treatment. This
change requires an ESD to notify the
public of the change; however, the basic
pump and treat remedy remains
unaltered and the performance level
specified in the ROD will be met by the
new technology, so a ROD amendment
is not necessary.
If the action, decree, or settlement
fundamentally alters the ROD in such a
manner that the proposed action, with
respect to scope, performance, or cost, is
no longer reflective of the selected
remedy in the ROD, the lead agency will
propose an amendment to the ROD. For
, example, the lead agency may have
selected an innovative technology as the
waste management approach in the
ROD. Studies conducted during remedial
design may subsequently indicate that
the innovative technology will not
achieve the remediation goals specified
as protective of human health and the
environment in the ROD. The lead
agency, based on this information, may
determine that a more conventional
technology, such as thermal destruction,
should be used at the site. In this event,
the lead agency will propose to amend
the ROD. The public will have a full
opportunity to comment on the proposed
amendment. Thus, contrary to the
commenters' suggestion, the final
decision to amend is not made until
after consideration of public comment,
as in the original ROD.
EPA also disagrees with the
commenter who suggested that public
comment should not be provided for
ROD amendments because CERCLA
does not require it. This comment
apparently is based on the
interpretation that once EPA selects a
final remedial plan, any further changes,
even those not contemplated in the
proposed plan or ROD and thus never
subject to public comment, would need
no public comment. EPA agrees that
CERCLA section 117 expressly provides
for public comment only on the
proposed plan and provides only a
notice requirement for significant
changes. However, EPA disagrees with
the commenter's interpretation that the
lack of an expb'cit requirement in the
statute means that no public comment is
necessary for any changes to the ROD.
The public comment on the original
proposed plan required under section
117(a) could be rendered meaningless by
a revision which is fundamentally
different from the remedies suggested in
the proposed or final remedial plan. EPA
does not believe that Congress intended
that the critical public involvement
opportunities provided in section 117
could be made irrelevant in such a
manner. Moreover, because ROD
amendments are as important a part of
the remedial decision-making process as
the selection of the original remedy. EPA
believes that .the public comment
opportunities on changes to the ROD
should be treated with equal
importance.
One commenter stated that the public
should have the opportunity to comment
on the ESD, arguing that to do otherwise
would deny PRPs their due process
unless they were allowed to add to the
administrative record. EPA disagrees
with this comment.
EPA has attempted to develop an
administrative process which balances
the public's continuing need for
information about, and input into, post-
ROD remedial action decisions, with the
lead agency's need to move forward
expeditiously with design and
implementation of the remedy after
fundamental decisions have been made
in the ROD. Thus, S 300.435(c) of the
final rule provides that where EPA plans
to make a fundamental alteration in a
selected remedy, EPA is required to
modify the ROD. and to follow a public
comment process similar to the
development of the original ROD.
However, where the change to the
action is "significant"—such that the
public should be notified of it—but is
not a fundamental alteration of the
selected remedy with respect to "scope.
performance, or cost," the lead agency
may publish an ESD without triggering a
new round of comment, as provided in
§ 300.435(c) and section 117(c) of
CERCLA.
This is not to say that the public is
excluded from the administrative
process when ESDs are issued; rather,
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations 8773
they have notice and a limited
opportunity to comment. Specifically,
EPA is required to document the
rationale for the changes contained in
an BSD, and to include such rationale in
the administrative record for public
review, pursuant to § § 300.435(c) and
300.825(a). Then, if a commenter
presents new information which
substantially supports the need for
significant changes to the remedy (as
modified by the ESD), the lead agency is
required to consider such comments.
Section 300.825(c). EPA believes that
these provisions provide ample
opportunities for public participation,
and that a separate comment period for
each ESD (plus a period for response to
comment) is not necessary or consistent
with the need to take prompt action,
especially where the change is not a
fundamental one. It should be noted
that, although Congress provided for a
comment period on the proposed plan, it ,
did not require one for an ESD.
It is also important to note that at the
time of an ESD, the public will already
have had an opportunity to comment on
the alternative remedial options for the
site (including the recommended
remedial option) during the comment
period on the FS and proposed plan; it is
at that time that commenters may bring
to EPA's attention fundamental issues
concerning the remedial action that
should be taken. When an ESD is issued,
after remedy selection, EPA is simply
modifying the remedy to enhance its
protectiveness, effectiveness, or cost; by
definition, it is not a "fundamental"
reconsideration of the basic remedy
selection decision on which comment
was taken. Just as EPA may initially
select a remedy that differs somewhat
from those proposed without triggering a
new round of comment each time
(indeed, the changes may be a direct
result of the comments), so may EPA
issue an ESD that reflects a
nonfundamental change or refinement in
the remedy without requiring a separate
round of comment.
Commenters also requested more
information on the procedures for
executing an ESD, specifically on the
roles of lead and support agencies.
Commenters also recommended that the
lead agency seek the approval of the
support agency before releasing the
ESD. When an ESD is issued, the lead
agency should consult with the support
agency (unless a SMOA. cooperative
agreement, or Superfund state contract
requires concurrence) prior to notifying
the public in a major local newspaper of
general circulation. The lead and
support agency will generally reach
agreement on the proposed significant
change. If agreement cannot be reached,
and dispute resolution processes are not
effective, then the support agency's
comments should be summarized in the
ESD and placed in the administrative
record files. The public notice of the
ESD will summarize the explanation of
significant differences by identifying the
significant changes and the reasons for
the changes. The lead agency will also
place the explanation of significant
differences and information supporting
the decision in the information
repository and administrative record
file. Further information concerning
issuance of ESDs on ROD amendments
is available in "EPA's Guidance on
Preparing Superfund Decision
Documents," OSWER Directive 9355.3-
02. October 1989 (Interim Final).
One commenter requested EPA to
remove the institutional bias against
reopening the ROD, especially in the
light of new monitoring data developed
in the design phase or in studies on
other operable units, that indicate the
site is less hazardous than previously
thought. EPA recognizes that new
information may warrant rethinking a
remedy selected for a site. EPA has
designed procedures, described in
I 300.435(c), for amending the ROD if it
is warranted by new information.
Final rule: EPA is promulgating the
rule as proposed.
Name: Other community relations
requirements.
Proposed rule: Section 300.155 is a
new section in the proposed NCP
outlining the purpose, applicability and
general procedures for establishing
community relations at a site, as well as
cross-referencing community relations
components of the removal, RI/FS, and
remedial design sections of the
regulations. Sections 300.415, 300.430
and 300.435 govern community relations
procedures for the removal, RI/FS, and
remedial design phases, respectively.
Response to comments: Several of
those submitting comments requested a
general description of the enforcement
community relations process in the
preamble to the proposed NCP.
While the sections cited above and
the preceding discussion detail the
processes governing community
relations at various stages in a
Superfund cleanup, including an
enforcement action, the following
discussion is intended to assist hi giving
an overview of the role of community
relations as it relates specifically to
enforcement actions.
In response to citizen concerns, EPA
has made an effort to foster better two-
way dialogue between communities and
those designing and conducting a site
cleanup. EPA believes that responsible
and timely communication with the
public is essential both to improving site
responses through citizen input, and to
improving the public's understanding of
a site response in their community.
Accordingly, EPA feels that community
relations during an enforcement action
is an integral part of the process. In
fostering community involvement during
enforcement actions, regional
community relations coordinators
(CRCs) follow the same steps as they
would for Fund-financed actions:
Conducting community interviews,
developing community relations plans,
sending out public notices periodically
and conducting public information
meetings. The lead agency at any site
develops a community relations plan
taking into account the concerns of the
community. In enforcement cases, the
plan should describe how the lead
agency will keep the public apprised of
the nature of the discussion with PRPs.
EPA retains control over developing,
writing and implementing these plans at
"PRP-lead" sites, but PRPs can assist in
the development of a plan at the
discretion of the regional office.
Community relations activities in the
form of meetings with groups of citizens,
local officials and other interested
persons in the community, often occur
before the RI/FS special notice is sent
(see preamble to the proposed NCP on
special notice and moratoria, 53 FR
51432). Discussions of PRP liability and
possible settlement terms will generally
be reserved for confidential negotiation
sessions, but the lead agency will
attempt to explain these issues in
general terms to the public. Lead
agencies should bring citizens into
technical discussions early in the RI/FS
process, and aid members of the public
seeking to apply for technical assistance
grants.
EPA received a comment asking that
federal agencies conducting a response
action be granted greater flexibility
when implementing public participation
requirements, as long as they meet the
overall public participation objectives.
Section 120(a)(2) of CERCLA holds
federal agencies to the same NCP
standards and requirements as any
other party. In addition, the public
participation requirements in the NCP
establish basic minimum public
participation requirements. Exempting
federal agencies from, or granting them
discretion in, following specific public
participation requirements would run
contrary to Congressional intent to
institutionalize certain public
participation activities in response
actions and EPA's experience
-------
8774 Federal Register / Vol. 55. No. 46 / Thursday. March 8, 1990 / Rules and Regulations
concerning what requirements for public
involvement are essential. Subpart K of
the NCP will address in greater detail
the role of federal agencies other than
EPA in carrying out a response action.
Final rule: See other preamble
sections on community relations for
descriptions of changes to the proposed
rule.
Enforcement
Name: Superfund enforcement
program strategy.
Proposed rule: The preamble to the
proposed NCP includes a brief
discussion of the 1986 SARA
amendments to CERCLA enforcement
provisions. This discussion states that
the SARA amendments added
provisions "intended to facilitate
responsible party financing of response
actions. CERCLA section 122, for
example, provides mechanisms by
which settlements between responsible
parties and EPA can be made, and
allows for 'mixed funding' of response
actions, with both EPA and responsible
parties contributing to response costs"
(53 FR 51395).
Response to comments: One
commenter stated that EPA should
minimize Fund depletion through less
stringent cleanups at many sites in favor
of increased use of administrative
orders and penalties to force PRP
cleanup wherever viable PRPs are
located.
Since the 1986 amendments were
passed, EPA has embarked on a course
that increasingly seeks PRP funding of
response actions and relies less on Fund
expenditures. In addition, EPA's
recently completed internal
management review of the Superfund
program ("A Management Review of the
Superfund Program," June 1989) ranked
the increased use of enforcement
capabilities to encourage PRP-funded
cleanups as one of EPA's highest
priorities. The comment above reflects a
need for clearer articulation of what is
already a well-established EPA policy to
emphasize enforcement.
EPA will use the fact and threat of
enforcement, encompassing a broad
range of administrative and legal tools,
to increase the proportion of cleanups
undertaken by private parties.
Final rule: There is no rule language
on this issue.
Name: Special notice and moratoria.
Proposed rule: There is a general
discussion of special notice in the
preamble to the proposed NCP and an
overview of the Superfund program and
response process (53 FR 51432).
Response to comments: Several of
those who submitted comments believe
that the discussion of special notice and
moratoria in the preamble to the
proposed NCP provides a good
introduction to the Superfund program,
but asked for more specific language
articulating EPA's enforcement strategy
for the program clarifying a priority for
enforcement responses over Fund-
financed responses. One commenter
requested language stating that formal
negotiations are not the only vehicle for
reaching a settlement with PRPs, and
that informal negotiations can and do
extend beyond the 60-day formal
negotiation period if "sufficient progress
has been made."
EPA believes that a clear articulation
of its goals for program enforcement is
necessary and appropriate, but that this
articulation belongs in the form of
guidance documents on general policy
goals and not as part of these
regulations. The preamble to the
proposed NCP discussion of § 300.430,
special notice and moratoria, already
articulates EPA's preference for
enforcement responses clearly: "A
fundamental goal of the CERCLA
enforcement program is to facilitate
settlements, i.e., agreements securing
voluntary performance or financing of
response actions by PRPs" (53 FR
51432). The discussion also recognizes
the important role of informal
negotiations:" 'formal' negotiations
should not be viewed as the sole vehicle
for reaching settlement * * * *
(F]requent interaction between EPA and
PRPs, through exchange and 'informal'
discussions may be appropriate outside
of the 'formal' special notice
moratorium" (53 FR 51432). The
discussion specifies that negotiations
can continue beyond the 60-day
negotiations period if EPA receives a
"good faith offer," a stipulation more
specific than the broader "sufficient
progress" language proposed by the
commenter and reflective of statutory
directives under section 122(e)(2)(b).
Final rule: There is no rule language
on this issue.
Name: Exemptions for federal
facilities.
Proposed rule: Section 300.2 outlines
the statutory requirement for NCP
revision to reflect changes made to
CERCLA by the 1986 SARA
amendments. Section 300.3 describes the
NCP as applying to federal agencies and
states for responses governed under
CERCLA and in cases of oil discharges
and other hazardous releases. The
preamble to the proposed NCP describes
the applicability of the NCP to federal
facilities (53 FR 51395-96).
Response to comments: One
commenter proposed that a general
"grandfather" clause be added to the
proposed NCP exempting federal
agencies from complying with new NCP
regulations for actions and studies on
federal facilities already in progress and
initiated under preexisting NCP
regulations. A related comment asked
that a grandfather clause exempt any
party who has initiated response actions
at a site under the provisions of the
preexisting NCP. A commenter argued
that any other policy would be
"disruptive to environmental progress."
EPA disagrees, and believes that the
new NCP provisions should take effect
30 days after promulgation, as provided
herein. The commenter's suggestion
would result in a situation where
response actions "initiated" before this
rule would be exempt. However, many
response actions—especially
remediation of contaminated ground
water—can take years to complete; it
would not be appropriate to exempt
from this rule actions that will continue
for long periods of time. EPA did
consider the option of making the rule
effective for those "phases" of response
actions begun after the effective date;
however, it is difficult to divide
response actions into distinct phases,
especially in the case of long-term
remedial actions. On the general issue of
whether the new requirements will be
burdensome, several points are worth
noting. First, EPA's stated policy has
been to use the proposed NCP revisions
as guidance, and in fact, EPA has done'
so; thus, the majority of provisions in
today's rule are well known. Second, to
a large degree, today's rule implements
the SARA statutory requirements, which
have been in effect since 1986; ongoing
actions are already required to meet
those requirements.
With regard to the suggestion that
generally applicable NCP requirements
should apply to federal facilities on a
different schedule than would apply to
others, EPA notes that CERCLA section
120(a) is very clear in prohibiting special
treatment for federal facilities:
All guidelines, rules, regulations, and
criteria which are applicable to preliminary
assessments * * *, applicable to such
facilities under the National Contingency
Plan, applicable to inclusion on the National
Priorities List, or applicable to remedial
actions at such facilities shall also be
applicable to facilities which are owned or
operated by a department, agency, or
instrumentality of the United States in the
game manner and to the same extent as such
guidelines, rules, regulations, and criteria are
applicable to other facilities (emphasis
added).
EPA will, however, after a notice and
comment rulemaking, issue a new
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8775
subpart K to the NCP that will address
some of the special concerns of the
federal facilities, and problems unique
to federal facility cleanups.
Final rule: See preamble section on
§ 300.3 for revisions to proposed rule.
Name: Sections 300.420, 300.430 and
300.435. Early notification and
involvement.
Proposed rule: Section 300.420
describes the methods, procedures and
criteria used during remedial site
evaluation. Section 300.430 describes the
specific tasks and activities of the RI/FS
process and selection of remedy,
including a preamble to the proposed
NCP discussion section on special notice
and moratoria pursuant to CERCLA
section 122(e) that describes how EPA
can issue special notice letters to PRPs
in pursuit of a settlement agreement.
Section 300.435 describes RD/RA
activities, including procedures for
public and PRP notification when
remedial actions differ significantly from
those outlined in the ROD.
Response to comments: Several of
those who commented believe that the
NCP should explicitly identify
opportunities for early PRP notification
and involvement, and agreed that
notification should be made to all
parties as soon as practicable after site
discovery, both to facilitate settlements
and information gathering, and to help
EPA make an informed decision on
deferred listing. One suggested that the
proposed NCP state that EPA regional
staff should involve "willing" PRPs in
project scoping, resulting in less
remedial alternatives to evaluate. The
comment did not specify whether
"willing" referred to settling PRPs or
cooperative, nonsettling PRPs, or both.
The comment added a request to include
an overall site remediation management
plan as part of the RI/FS in the proposed
NCP. Another comment suggested that
introductions to all three sections at
issue above should state EPA's
commitment to issue general and special
notice letters to known PRPs before
taking any action at the site. Finally, one
comment outlined a revised process to
better involve PRPs in remedial action:
PRPs should be notified of selection of
an RI/FS contractor and be given copies
(with an opportunity to comment) of
project scoping and work plans,
sampling plans and all sampling results
as they become available, a list of
ARARs, a list of potential alternatives
for the FS, and copies of the risk
assessment.
Section 300.415(a)(2) adds language
articulating EPA's commitment to
contact known PRPs "to the extent
practicable" in order to "determine
whether they can and will perform the
necessary removal action" (53 FR
51500). EPA believes that it must
preserve its discretion regarding timing
of PRP notification provided in the
statute to protect its enforcement and
response flexibility. The preamble to the
proposed NCP already reflects EPA's
commitment to early notification and
early PRP involvement at a site in the
discussion of § 300.430: "EPA believes
that settlements are most likely to occur
and will be most effective when EPA
interacts frequently and early in the
process with PRPs" (53 FR 51432).
Specific regulations would restrict EPA
discretion and the use of incentives in
enforcement activities to bring about a
settlement. Finally, the statute already
provides PRPs with an opportunity for
further involvement in the RI/FS process
by entering into an agreement with EPA
and conducting the RI/FS and/or the
response action.
Final rule: EPA is promulgating the
rule as proposed.
Subpart F—State Involvement in
Hazardous Substa'nce Response
Subpart F is completely new. It
combines concepts described in
separate sections in the existing NCP on
state role and involvement into one
subpart, which codifies all regulatory
requirements for state participation and
involvement in CERCLA-authorized
response actions. It also includes the
minimum requirements EPA will follow
to ensure that all states are provided an
opportunity for "substantial and
meaningful" involvement in the
initiation, development, and selection of
remedial actions as mandated by
CERCLA section 121(f)(l). Following are
summaries of major comments on the
proposed subpart F and EPA's
responses.
Name: Section 300.5. Definitions of
cooperative agreement and Superfund
state contract.
Proposed rule: The proposed NCP,
{ 300.5, includes definitions of two terms
not previously defined: Cooperative
agreement and Superfund state contract.
Cooperative agreement means a federal
assistance agreement in which
substantial federal involvement is
anticipated during the project.
Superfund state contract means a joint
agreement between EPA and a state that
documents any required cost share and
assurances necessary to conduct a
response action.
Response to comments: Some
comments were received on the
definition of cooperative agreement.
One commenter argued that the
definition should be revised to recognize
the availability of state cooperative
agreements under section 311 of the
Clean Water Act and the Coast Guard's
authority to enter into such agreements
under the Clean Water Act and
CERCLA section 104(d). Another
commenter stated that the recipient of a
cooperative agreement should already
have been determined to be qualified
and responsible to conduct the response
actions described in the cooperative
agreement without substantial EPA
involvement. "Substantial EPA
involvement" was also disputed by
another commenter who suggested that
cooperative agreement be defined as a
federal assistance agreement which
authorizes the performance of federal
duties and responsibilities within a
prescribed scope.
Cooperative agreements under
CERCLA are subject to the Federal
Grant and Cooperative Agreement Act,
31 U.S.C. 6301-8, which defines
cooperative agreement as a legal
instrument in which substantial federal
involvement is anticipated. This
definition applies as well to CERCLA
cooperative agreements. Moreover, EPA
believes that there will be substantial
federal involvement or oversight under
most CERCLA cooperative agreements.
In 1988, the Office of Management and
Budget revised Circular-A102 and
established a government-wide
"common rule" for all federal agencies
which prescribed the administrative
requirements for federal assistance to
states, local governments, and federally
recognized Indian tribes. EPA
implemented this common rule through
40 CFR part 31, which was developed at
the time the NCP was proposed. As a
supplement to 40 CFR part 31, EPA also
promulgated separate implementing
regulations for Superfund, 40 CFR part
35 subpart O, Cooperative Agreements
and Superfund state contracts for
Superfund Response Actions. Either a
cooperative agreement or a Superfund
state contract must be used to obtain the
necessary CERCLA section 104
assurances.
The definitions of cooperative
agreement and Superfund state contract
in 40 CFR part 35 subpart O are
somewhat more detailed than the
definitions for the same terms in the
proposed NCP. The final NCP
incorporates the 40 CFR part 35 subpart
O definitions. The final NCP also cross-
references parts 31 and 35 subpart O
where appropriate. EPA acknowledges
the United States Coast Guard's
authority to enter into cooperative
agreements under section 311 of the
Clean Water Act and that E.0.12580
provides the Coast Guard and other
-------
8776 Federal Register / Vol. 55. No. 46 / Thursday. March 8, 1990 / Rules and Regulations
federal agencies with certain authorities
under CERCLA. However, EPA believes
that it is not appropriate to include this
in the definition of cooperative
agreement since the definition of this
term is already prescribed by the
Federal Grant and Cooperative
Agreement Act of 1977.
Final rule: 1. Proposed definitions in
5 300.5 are revised as follows:
Cooperative agreement is a legal
instrument EPA uses to transfer money,
property, services, or anything of value to a
recipient to accomplish a public purpose in
which substantial EPA involvement is
anticipated during the performance of the
project.
Superfund state contract means a joint,
legally binding agreement between EPA and
a state to obtain the necessary assurances
before a federal-lead remedial action can
begin at a site. In the case of a political
subdivision-lead remedial response, a three-
party Superfund state contract among EPA,
the state, and political subdivision thereof, is
required before a political subdivision takes
the lead for any phase of remedial response
to ensure state involvement pursuant to
section 121(f)(l) of CERCLA. The Superfund
state contract may be amended to provide
the state's CERCLA section 104 assurances
before a political subdivision can take the
lead for remedial action.
2. Cross-references to the relevant
portions of 40 CFR part 31 and part 35.
subpart O, have been added to the NCP
in the following sections of subpart F:
300.500(b), 300.505(c), 300.510(a),
300.510(b)(2). 300.515(a), 300.515(g), and
300.525(3)-
Name: Section 300.500. General.
Section 300.505. EPA/state Superfund
memorandum of agreement (SMOA).
Section 300.515(h). Requirements for
state involvement in absence of SMOA.
Proposed rule: Proposed § 300.505
established general guidelines for
developing and implementing a SMOA
between EPA and a state (see preamble
discussion in 53 FR 51455). A SMOA is
an operating agreement that details how
EPA and a state shall conduct business
for remediating sites within that state.
This section further described the ways
in which a SMOA can provide a
framework for the EPA/state
partnership and how a SMOA may be
used to establish the nature and extent
of EPA/state interaction during
response activities, to define the roles
and responsibilities of each agency, and
to describe the general requirements for
EPA oversight.23 Proposed § 300.505(a)
" The term "partnership" doe* not imply that
EPA and a itate enter into a formal legal
partnership agreement.
also specified that a SMOA is not
required unless a state requests to be
designated as a lead agency for non-
Fund-financed response actions at NPL
sites, or to recommend a remedy for
EPA concurrence for Fund-financed
response actions. As proposed, the
regulation would have established a
SMOA as a prerequisite for both types
of state involvement.
Section 300.515(h) described
categories of requirements for state
involvement in the absence of a SMOA,
or in the event that the SMOA did not
address all the major requirements for
state involvement in remedial and
enforcement responses. This section
required that, in the absence of a
SMOA, the support agency was
responsible for providing the lead
agency with potential ARARs and TBCs
by the time site characterization data
were available. The potential ARARs
shall be communicated in writing within
30 working days of the lead agency's
request. After the initial screening of
alternatives, and before comparative
analyses are conducted, the support
agency has the opportunity to
communicate additional requirements
that are relevant and appropriate within
30 working days of receiving the
request. Finally, the lead and support
agencies shall remain in consultation so
that ARARs and TBCs are updated, as
necessary, until the ROD is signed.
Response to comments: 1. SMOA as
prerequisite. Two commenters agreed
that a SMOA should be required if a
state requests to be designated as lead
agency for non-Fund-financed actions at
NPL sites or to recommend a remedy for
EPA concurrence for Fund-financed
actions. One of these commenters stated
that, if EPA requires a state to sign a
SMOA for these purposes, EPA must
reach agreement with the state on the
SMOA within one year. Other
commenters objected to linking the
ability of a state to recommend a
remedy for Fund-financed response to
the existence of a SMOA. One
commenter stated that delegation of
program components should not be
linked to the existence of a SMOA.
Several commenters expressed the view
that such requirements undermine the
goal of a true partnership between EPA
and the state. Commenters noted
several concerns regarding this subject.
They argued that CERCLA section
121(f) mandates that EPA provide states
with meaningful and substantial
involvement in implementing Superfund.
Since the SMOA is a voluntary,
nonlegally binding document,
commenters asserted that the lack of a
SMOA should not prevent states from
participating meaningfully in the
program. Commenters further argued
that the existence of a SMOA will not
improve the ability of states to select
and recommend a remedy, particularly
for those states already assuming lead
roles. Degree of involvement should be a
function of interest and ability, not of
the existence of a SMOA at a particular
moment in time. One commenter
stressed that requiring a state to have a
SMOA in order to be a contributing
member in the Superfund program could
create a serious problem for a state,
particularly if the region declines to
enter into a SMOA.
Several commenters stressed that a
SMOA should not be a prerequisite for a
state to recommend a remedy for EPA
concurrence at a Fund-financed site. In
such cases, a cooperative agreement
would already be in existence and
would address many of the issues
otherwise contained in a SMOA.
Furthermore, as lead agency, the state
will have extensively analyzed the
response needs and will be well
qualified to select and recommend a
remedy.
Many commenters mentioned that
EPA can accept, reject, or modify any
state recommendation for Fund-financed
actions. This final authority over the
state's remedy recommendation makes
having a SMOA as a prerequisite
unnecessary. Finally, several
commenters asserted that EPA's
decision to concur or not concur with
the state's recommended remedy should
be based on whether the
recommendation is sound and satisfies
the nine remedy selection criteria, not
on the existence of a SMOA.
Another concern expressed by
commenters regarding concurrence is
one of timing. Several commenters were
worried that the process of negotiating a
SMOA can take a significant amount of
time and could delay designation of
sites for state-lead cleanup in the
meantime. States that have
demonstrated experience in Superfund
implementation should not be restricted
from recommending a remedy until
negotiations are completed and a SMOA
is in place.
Commenters generally did not agree
with requiring a SMOA as a prerequisite
for state lead during non-Fund-financed
response actions at NPL sites for two
reasons. First, commenters asserted that
lead agency designation should be
based on a state's ability to manage the
necessary response activities, not on the
existence of a SMOA. Second,
commenters stated that if the SMOA
was required for the state to be
designated the lead agency, some states
could be denied the opportunity to
-------
Federal Register / Vol. 55, No. 46 / Thursday. March 8. 1990 / Rules and Regulations 8777
assume the lead if regions declined to
enter into SMOAs. A few commenters
mentioned that so far it appears that
EPA has not placed a priority on
finalizing a SMOA even when the state
has initiated the drafting and
development process. A few
commenters were concerned that
imposing a prerequisite for non-Pund-
financed state leads may pose a
hardship for smaller states, which desire
only limited participation in lead
activities. The commenters point out
that a SMOA does not contain any
provisions that could not otherwise be
provided in a site-specific cooperative
agreement.
EPA agrees with commenters that the
SMOA should not be a prerequisite for
certain program activities, and has
modified the final rule accordingly. EPA
will not require states to negotiate
SMOAs in order to recommend
remedies for EPA concurrence at Fund-
financed sites, or to be designated as
lead agencies for non-Fund-financed
actions at NPL sites. A SMOA is not the
appropriate mechanism to designate
sites for which a state will recommend a
remedy. EPA and a state will agree in a
cooperative agreement that the state
may recommend a remedy at a site for
which the state has been designated as
the lead agency. EPA has decided to
remove the SMOA as a prerequisite for
these activities in order to emphasize
the primary purpose of SMOAs as
voluntary agreements through which
EPA and a state can agree on
communication and coordination
processes throughout the remedial
process. This approach will be more
conducive to expanding the EPA/state
partnership in the Superfund program.
EPA will enter into SMOA discussions if
requested by a state.
EPA agrees that the absence of a
SMOA should not in itself limit the level
of participation by a state in the
Superfund program, nor does the
existence of a SMOA improve the
ability of a state to participate more
fully in the program. A SMOA can,
however, act as an effective
management tool and lead to a more
effective EPA/state partnership through
better defining roles and distributing
responsibilities according to each
party's resources and experience. Thus,
SMOAs may contribute to more
consistent program implementation
nationwide, while providing EPA and
states flexibility in conducting certain
program activities. Lead designations for
both Fund-financed and non-Fund-
financed sites should be determined
based on interest, capability, and
available resources.
2. ARAR review times. Several
commenters supported the 30-day
deadline for support agencies to identify
ARARs, which applies to states without
a SMOA. In addition, a few commenters
•tressed that timely ARAR identification
is important for sites in states with and
without a SMOA to achieve rapid
response actions, and suggested that
states with a SMOA also be subject to
the 30-day deadline. One commenter
specifically stated that review times set
forth in the proposed rule do not provide
a sufficient amount of time to identify
and communicate ARARs to the lead
agency. A minimum of 30 days is
necessary to give support agencies the
opportunity to review the information
located in various documents
adequately.
EPA agrees that timely ARAR
identification is important in expediting
response actions. The 30-working day
timeframe in § 300.515(h)(2) generally
will apply to all lead and support
agencies in the absence of a SMOA.
However, EPA believes it is also
important to allow EPA and states
flexibility to agree on site-specific
ARAR identification timeframes. A
SMOA may reference the language of
§ 300.515(h](2), or specify a mutually
agreed upon alternative; however, to be
legally binding, any alternative
timeframes negotiated in a SMOA must
be documented in site-specific
agreements.
3. Impact of SMOA on response
agreements. Several commenters
expressed concern that entering into a
SMOA could impact agreements already
in place to which the state and/or EPA
is a party. In particular, this conflict
could raise issues of due process,
especially when existing agreements
involve potentially responsible parties.
To eliminate the possibility of this
problem, commenters recommended that
a provision be added to 5 300.505 to
ensure that a SMOA will not impact
existing enforcement orders, consent
orders, or cooperative agreements. EPA
agrees with the commenters and will
revise the NCP accordingly. The SMOA
is a non-binding document, and
therefore cannot alter existing legally
binding response agreements.
4. Removal coordination and SMOAs.
See preamble discussion to S 300.415 on
state involvement in removal actions.
Final rule: Proposed § 300.505 is
revised as follows:
1. Language has been reordered and
modified to better describe the purpose
and contents of SMOAs.
2. The final rule states in § 300.505(a)
that EPA shall enter into SMOA
discussions if requested by a state.
3. Language in the proposed rule
making the SMOA a prerequisite in
order for a state to recommend a remedy
for EPA concurrence at a Fund-financed
site or to be designated as the lead
agency at a non-Fund-financed NPL site
has been deleted.
4. Proposed § 300.505(a)(4)(i)
(renumbered as final S 300.505(a)(3)) is
revised to state that review times
established in a SMOA must also be
documented in a site-specific
cooperative agreement or Superfund
state contract to be legally binding.
5. Proposed 5 300.505(a)(4)(ii)
(renumbered as final § 300.505(c}) has
been revised to state that site-specific
agreements entered into pursuant to
CERCLA section 104(d)(l) shall be
developed in accordance with 40 CFR
part 35 subpart O and that the SMOA
does not supersede any site-specific
legal agreements.
6. A new § 300.505(d)(2)(viii) has been
included to add other CERCLA
implementation activity discussions to
the SMOA process.
7. Language is added to § 300.515(d)[2)
stating that even though alternative
timeframes for ARAR identification may
be established in the SMOA, such
timeframes must also be documented in
a site-specific agreement to be binding.
8. In final rule § § 300.5 (definition of
"SMOA"), 300.500(a), 300.505(a)(l), (a)(3)
and (d](lj, the word "removal" is being
added before the word "pre-remedial"
(see preamble discussion on § 300.415,
"State involvement in removal actions")
9. Language on advisories, criteria or
guidance in $ 300.505(d)(2)(iii) has been
modified (see preamble section on
TBCs).
Name: Sections 300.510(c)(l) and (c)(2
and (e). State assurances—operation
and maintenance and waste capacity. •
Existing rule: 1985 NCP § 300.68(b}(2)
provided that states must have met the
requirements of CERCLA section
104(c)(3) prior to initiation of a Fund-
financed remedial action. CERCLA
section 104(c)(3)(A) required a state to
assure all future maintenance of the
remedial action for the expected life of
auch action. CERCLA section
104(c)(3)(C) provided that the state
would pay or assure payment of 10
percent of the cost of the remedial
action, including all future maintenance
Proposed rule: Proposed
$ 300.510(c)(l) restated the requirement
of the 1985 NCP (53 FR 51455-56). It
indicated that, pursuant to CERCLA
section 104(c), the state must provide
assurance, prior to the remedial action,
that it will assume responsibility for
operation and maintenance (O4M) of
-------
8778
Federal Register / Vol. 55, No. 46 / Thursday. March 8, 1990 / Rules and Regulations
the implemented remedial action for the
expected life of such action. Proposed
J 300.510{c)(2) stated that EPA may
share, for up to one year, in the cost of
operation of the remedial action to
ensure that the remedy is operational
and functional. Proposed § 300.435(f)
provided, pursuant to CERCLA section
104(c)(6), that EPA will fund for up to 10
years measures to restore ground or
surface water quality. Proposed
§ 300.510(e) described requirements for
states providing a waste capacity
assurance.
Response to comments: Several state
commenters argued that CERCLA
section 104(c)(3)(C) requires that 90 (or.
in some cases, 50) percent of the cost of
O&M will be federally funded. Some of
the commenters also cite CERCLA
section 104(c)(7), which refers to federal
funding of O&M pursuant to CERCLA
sections 104(c)(3)(i) and (6) and S. Rep.
No. 96-848 (1980). One commenter
claimed that requiring a state to fund
O&M costs entirely biases EPA's
selection process to favor remedies that
are less permanent and less effective, by
minimizing short-term expenditures at
the expense of greater state-funded
O&M. Another commented that states
have agreed to operation and
maintenance of remedies.
EPA has followed a general policy of
requiring states to assure the payment of
operation and maintenance costs for
Fund-financed remedial actions.
Operation and maintenance costs are
generally identified in the ROD and
remedial design so that states have an
opportunity to comment and recommend
revisions to such costs. This policy is
consistent with section 104(c)(3) of
CERCLA, which provides that Fund-
financed response actions may not take
place until "the state assure[s] all future
maintenance of the removal and
remedial actions provided for the
expected life of such actions as
determined by the President * * *."
EPA further believes that Congress has
implicitly accepted this policy by
providing in CERCLA section 104(c)(6)
that a certain c/oss of activities, namely
those to operate and maintain treatment
and other measures necessary to restore
surface or ground water for up to 10
years, are remedial action and,
therefore, are subject to the general 90/
10 or 50/50 cost share requirements. The
statute goes on to provide that activities
to maintain the effectiveness of those
restoration measures, once protective
levels are achieved or up to 10 years,
whichever is earlier, are to be
considered O&M (for which the state
pays 100 percent under a long-standing
policy) (see preamble discussion on
§ 300.435(f)).
CERCLA section 104(c)(3)(A) provides
that "the state will assure all future
maintenance of the removal and
remedial action provided [in section 104]
for the expected life of such actions as
determined by the President" (emphasis
added). EPA believes that this language
places this responsibility for the
operation and maintenance of response
actions—including the funding aspect—
on the states. Indeed, Congress
implicitly acknowledged this by carving
out only a limited exception from O&M
in CERCLA section 104(c)(6). As the
House Committee on Public Works and
Transportation noted in a discussion of
the precursor to section 104(c)(6),
"* * * ground or surface water cleanup
will be completed as part of the
remedial action, and not be left to
operation and maintenance activities
which must be funded by a state." H.
Rep. 253,99th Cong. 1st Sees., part 5 at
10 (1985) (emphasis added). In addition,
although a bill to require EPA to pay a
cost share for O&M was considered
during the SARA reauthorizetion
process, it was not reported out of the
98th Congress. (See H. Rep. 890,98th
Cong., 2nd Sess., part 1 at 4,445 (1984),
Report of the House Committee on
Energy and Commerce.)
In addition, as noted under
§ 300.430(a)(l)(ii)(D), institutional
controls may be required to provide for
the protectiveness of human health and
such institutional controls have a valid
role in the remediation of a site when
active treatment of a site is not
practicable. Where institutional controls
are employed as part of a response
action, care must be taken to ensure that
such controls are reliable and will
remain in place. Therefore, when
appropriate, as part of the O&M
assurance required by CERCLA section
104(c)(3) and S 300.510(c) of this
regulation, the state must assure that
any institutional controls implemented
as part of a remedial action at a site are
hi place, reliable, and will remain in
place after the initiation of O&M. The
final rule has been changed to reflect the
need to maintain institutional controls
when appropriate.
Further, the experience of the
Superfund program has been that EPA's
•election process does not favor
remedies that are less permanent and
less effective, by minimizing short-term
expenditures at the expense of greater
state-funded O&M. On the contrary,
current data reveal that the trend has
been toward the use of more permanent
technologies. CERCLA section 121(b)(l)
requires that EPA select a remedial
action that is protective of human health
and the environment, is cost-effective,
and utilizes permanent technologies to
the maximum extent practicable. In
order to formulate a more consistent
approach in selecting remedies at sites,
nine selection criteria are used (see
§ 300.430). A remedy is not selected
based on cost share alone, rather the
•election of remedy process is based on
a balancing approach of the nine
criteria. In fact, EPA has modified die
proposed approach to encourage
•election of treatment alternatives by
emphasizing the criteria of long-term
effectiveness and permanence and
reduction of toxicity, mobility, or volume
through treatment in the final rule (see
S 300.430(f)(l)(ii)(E)).
In another change in this section, the
language in § 300.510(e) describing the
requirements for providing the waste
capacity assurance has been revised to
codify language from CERCLA section
104(c)(9) and to reflect the passage of
the October 17,1989 date for
applicability of this assurance under
CERCLA section 104(c)(9). EPA
generally will use the following to
determine the adequacy of the state's
assurance: (1) The plan submitted to
EPA documenting the waste capacity
availability, (2) the state's written
commitment to implement the plan, and
(3) the state's written commitment to
implement any additional measures EPA
deems necessary to provide for
adequate waste capacity (see Assurance
of Hazardous Waste Capacity
Guidance, OSWER Directive No. 9010.00
(December 1988) and OSWER Directive
No. 9010.00a (October 1989)).
Final rule: 1. EPA has revised
S 300.510(c)(l) to state that any
institutional controls associated with
response actions are a part of the
required CERCLA section 104(c)
assurances.
2. EPA has revised i 300.510(e) to
codify language in CERCLA section
104(c)(9) and to reflect the passage of
the October 17.1989 date for
applicability of the waste capacity
assurance. Also, the rule notes that the
issue of whether or not Indian tribes are
•tates for purposes of CERCLA section
104(c)(9) has not yet been decided by
EPA.
Name: Section 300.510(f). State
assurances—acquisition of real
property.
Proposed rule: Section 300.510{f)
proposed that if an interest in real
property was to be acquired in order to
conduct a response action, as a general
rule, the state in which the property was
located must have agreed to acquire and
-------
Federal Register / Vol. 55. No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8779
hold the necessary property interest. If it
was necessary for the United States to
acquire the interest in property to permit
implementation of the response, the
state must have agreed to accept
transfer of the acquired interest on or
before the completion of the response
action.
Response to comments: Several
commenters contended that CERCLA
section 104(J)(2) provides that a state is
required to assure that it will accept
transfer of the interest following
completion of the remedial action. They
argue that states do not have to accept
title to property until the remedial
response is completed, not earlier, and
that the determination of whether such
property must be acquired does not lie
solely with EPA, but must be made in
consultation with the affected state. The
commenters also object to the proposed
rule's application to "response actions"
instead of "remedial actions" as
provided by CERCLA section 104(j)(2)
because EPA does not have the
authority to force a state to accept title
to contaminated property after a
removal action. Some commenters
suggest that other mechanisms to
implement response actions, such as
voluntary consent, search warrants or
court orders, should be used to
implement response actions.
EPA agrees that other mechanisms
such as voluntary consent, search
warrants, and court orders may be used
to implement response actions.
However, in some circumstances it may
be necessary to acquire an interest in
real property for implementation of the
response action. As stated in the
proposed rule, the state in which the
property is located must agree to
acquire and hold the necessary property
interest.
If the state intends to acquire property
directly, but lacks authority to condemn
or otherwise acquire it or is unable to do
so in an expeditious manner, it may be
necessary for the United States to
acquire the interest in the property to
permit implementation of the response.
In such instances, the state must accept
transfer of the acquired interest on or
before completion of the response
action. EPA would prefer that a state
accept transfer of the acquired interest
prior to completion of the response
action. Of course, the state may pass
title to its interest to another entity such
as a political subdivision to hold, as the
state deems appropriate. While
ownership of such interest would not
result in CERCLA liability pursuant to
CERCLA section 104(j}(3), EPA
understands that states are concerned
about common law liability that could
result from ownership (e.g., arising from
injuries to persons coming on the
property) and that they would prefer not
to take title to such property until
completion of the response action. EPA
believes that it is not going beyond the
statutory language to require a state to
accept title "on or before" completion of
the response action; the section merely
gives the states the option to accept title
prior to completion of the response
action.
Although Indian tribes are not
required to provide the CERCLA section
104(c) assurances, federally recognized
Indian tribes are not exempt from
providing the CERCLA section 104(j)
assurance. However, EPA will consider,
on a case-by-case basis, what
assurances are necessary where there
are legal barriers to a tribe's taking title
to property rather than having it held in
trust for the tribe by the United States.
Final rule: EPA is revising § 300.510(f)
to state that the state must also accept
transfer of any interest in acquired
property that is needed to ensure the
reliability of institutional controls
restricting use of that property (see
discussion above on | 300.510(c)(l)).
Name: Section 300.515(a).
Requirements for state involvement in
remedial and enforcement response.
Proposed rule: Proposed
§ 300.515(a)(l) stated that EPA would
designate a state agency as the lead
agency for a response action on the
basis of whether or not it had "the
capability to undertake such action."
Language in the preamble to the
proposed NCP (53 FR 51456) stated that
EPA was currently considering more
specific criteria, including: Overall
expertise, legal authorities,
administrative and contracting
capability, financial management
systems, site complexity, availability of
site-specific resources, past federal or
state actions at the site, and past state
cleanup activities.
Proposed § 300.515(a)(2) stated that
for EPA-lead Fund-financed remedial
planning activities, the state agency
acceptance of the support agency role
during an EPA-lead response shall be
documented in a letter or a SMOA.
Section 300.515(a)(3) proposed that
site-specific agreements were generally
unnecessary for non-Fund-financed
response actions unless a state intended
to later seek credit for its actions.
Response to comments: 1. Section
300.515(a)(l). Commenters stated that
the criteria stated in the proposed
preamble should be revised to include:
Desire of the state to do the work,
minimum legal ability to issue and
enforce orders, a history of state
involvement with federal Superfund
activities in the state, and an ability to
demonstrate adequate resources,
including experienced personnel.
Criteria for lead agency designation
were suggested by EPA in the preamble
to the proposed rule (53 CFR 51394) but
were not proposed as regulatory
requirements. EPA continues to believe
it appropriate to suggest, rather than
require, that these criteria, along with
the criteria suggested by the
commenters, be considered during EPA
and state discussions on designating a
lead agency. Since conditions may differ
among sites, EPA prefers to decide upon
lead agency status by entering into
separate discussions with the state for
each response. If the state is chosen as
the lead agency, 40 CFR part 35 subpart
O contains the appropriate regulations
regarding criteria for eligibility and
award of funding for state involvement
in Superfund response actions.
Therefore, criteria for designating a lead
agency have not been added to today's
rule. A cross-reference to subpart O has
been added in § 300.515(a).
Another comment stated that
regulations governing Fund-financed
response actions are silent on whether
or not states are allowed to perform
enforcement response activities the
conunenter contended were clearly
allowed under CERCLA section 104. The
comment proposed adding language to
§ 300.515(a)(2) clarifying that states are
allowed to perform enforcement
response activities.
EPA has modified § 300.515(e)(2)(i) to
explicitly acknowledge the authority of
states to conduct response actions at
NPL sites under state law. The language
specifies that a state will prepare the
ROD (i.e., select the remedy), and may
seek EPA's concurrence for non-Fund-
financed state-lead enforcement actions.
Such actions are conducted under
authority of state law, not CERCLA.
Additionally, revised S 300.505(b}(2)(iv)
describes enforcement activities that
may be conducted by states.
2. Section 300.515(a)(2). One
conunenter stated that the NCP should
also permit support agency acceptance
to be documented through a cooperative
agreement. EPA agrees that state
acceptance of the support agency role
may also be documented in a
cooperative agreement. EPA allows
states to enter into support agency
cooperative agreements to defray the
cost of their participation in EPA-lead
response, pursuant to 40 CFR part 35
subpart O. The support agency
cooperative agreement is the most
appropriate place to document the
-------
8780
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
state's acceptance of the support agency
role.
3. Section 300.515(a)(3). Since EPA has
decided to not require the signing of a
SMOA for specific state involvement
activities, e.g., recommending a remedy
to EPA, the language in this section
needs to clearly define when a
cooperative agreement may be signed.
In all cases, EPA may enter into a
cooperative agreement only at Fund-
financed sites unless a state intends to
seek credit pursuant to § 300.515. As
defined at 40 CFR part 35 subpart O,
cooperative agreements are intended to
implement CERCLA-funded response
and should not be used to aid cleanup at
non-Fund-financed sites.
Final rule: 1. A statement has been
added at § 300.515(a)(l) to clarify that 40
CFR part 35 subpart O contains further
information regarding state involvement
in response.
2. Section 300.515(a)(2) is revised to
state that the state may document its
acceptance of the support agency role in
a letter, SMOA. or cooperative
agreement.
3. Language in § 300.515(a)(3) is
changed to clarify that cooperative
agreements and Superfund state
contracts are only appropriate for non-
Fund-Fmanced actions if a state intends
to seek credit under § 300.510.
Name: Section 300.515(b). Indian tribe
involvement during response.
Proposed rule: EPA proposed to
provide for interaction with federally
recognized Indian tribes whenever a
CERCLA site was within Indian
jurisdiction. As stated in proposed
§ 300.515(b), federally recognized Indian
tribes generally may have the same
roles and responsibilities under the NCP
as do states. Indian tribes may be
authorized to take the lead role for
Fund-financed response activities
through a cooperative agreement based
on the following criteria: (1) The Indian
tribe is federally recognized; (2) the tribe
currently performs governmental
functions to promote the health, safety,
and welfare of its population or
environment; (3) the tribe demonstrates
the ability to carry out the necessary
response actions according to the
priorities and criteria established by the
NCP; (4) the tribe can demonstrate that
the necessary actions are within the
scope of its jurisdiction; and (5) the tribe
can demonstrate a reasonable ability to
effectively administer a cooperative
agreement.
Response to comments: Several
commenters expressed concern that the
criteria used to judge states' ability to be
a lead agency seem to be different from
the criteria used to judge the ability of
Indian tribes to fulfill the same role. The
requirement that tribes establish
jurisdictional authority is not required of
states, and has not been consistently
applied to states in the past. Several
commenters asserted that this is
"blatant discrimination" and
undermines EPA's efforts to work
effectively with Indian tribes. Many
commenters requested that EPA address
the apparent disparity between criteria
applied to states and Indian tribes.
A few commenters were also
concerned about the criteria requiring
Indian tribes to be federally recognized
in order to undertake the lead role and
identified a need to clarify which agency
has the authority to govern cleanup
activities at sites within the jurisdiction
of an Indian tribe that is not federally
recognized. Similarly, commenters were
concerned about how EPA expects to
resolve hazardous substance releases
from sites on Indian land when the
release extends beyond the boundary of
the reservation. One commenter
requested clarification about whether
EPA will allow a state agency to work
with these tribal councils under two-
party agreements.
In response, EPA proposed criteria in
§ 300.515(b) for evaluating whether
Indian tribes had the capability to take
the lead for Fund-financed response
activities through a cooperative
agreement. After reconsidering the
criteria based on public comment, EPA
believes that a distinction should be
made in the final rule between criteria
for Indian tribes to be treated
substantially the same as states and for
the eligibility of Indian tribal
governments to receive funding, which
is described in 40 CFR part 35 subpart
O, for involvement through a Superfund
cooperative agreement.
For an Indian tribe to assume the
same responsibility as a state in
Superfund response actions, the Indian
tribe must be federally recognized and
must currently perform governmental
functions to promote the health, safety,
and welfare of its population or
environment. In addition, the tribe must
have jurisdiction over the site at which
response is contemplated, including pre-
remedial activities. A similar
jurisdictional requirement was not
considered to be necessary for states
whose jurisdiction clearly covers the
entire state. However, the extent of
Indian tribal jurisdiction may be less
clear. A determination of whether a
tribe has jurisdiction over a site should
be made by EPA based on
documentation submitted by the
governing body of an Indian tribe.
However, by making a determination
that an Indian tribal government has
jurisdiction for purpose of CERCLA
response, EPA is not making a
determination regarding jurisdiction for
any other purpose.
When a hazardous substance release
affects lands both within and beyond
the boundaries of lands within the
jurisdiction of an Indian tribal
government, state participation is
necessary. EPA will encourage
coordination between states and Indian
tribes when releases originate in the
jurisdiction of one and affect the other.
There is nothing to prohibit the tribe and
state from entering into a two-party
agreement to identify roles and
responsibilities. The region will evaluate
requests for lead agency designation to
undertake response at such sites on a
case-by-case basis in consultation with
the affected governing body of the tribe
and state. Federal-lead may be
appropriate in such situations. A three-
party Memorandum of Understanding
(MOLT) among EPA, the state, and
governing body of the Indian tribe is
recommended to define and coordinate
roles, and ensure compliance with the
requirements of section 121 of CERCLA
for response activities prior to remedial
action.
A federally recognized Indian tribe
can apply for Fund monies through a
Superfund cooperative agreement to
defray the cost of its participation as a
lead or support agency (the eligibility
criteria to receive funding under a
cooperative agreement are discussed at
40 CFR part 35 subpart O).
Final rule: The criteria in § 300.515(b)
are modified and renumbered to enable
an Indian tribe to assume the same
responsibility as a state in Superfund
response actions, if the tribe is federally
recognized and currently performs
qovernmental functions to promote the
health, safety, and welfare of its
population or environment. The tribe
must also have jurisdiction over the site
at which response is contemplated.
Name: Sections 300.425(e)(2), 300.515
(c)(2) and (c)(3). State involvement in
PA/SI and NPL process. Section
300.515(h)(3). State review of EPA-lead
documents.
Proposed rule: Proposed •
{ 300.515(c)(2) provided that states have
a minimum of 20 calendar days and a
maximum of 30 calendar days to review
releases to be proposed to be listed on
the NPL Sections 300.425(e)(2) and
300.515(c)(3) provided the same
miniTTniTn/mflxirnum timrframes for
states to review notices of intent to
delete releases from the NPL. Section
300.515(h){3) provided, in the absence of
a SMOA, that states have a minimum of
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8781
10 working days and a maximum of 15
working days to provide comments on
EPA-prepared RI/FSs, RODs, ARAR/
TBC determinations, and RDs. States
were provided a minimum of 5 working
days and a maximum of 10 working
days to comment on the proposed plan
(see preamble to proposed rule at 53 FR
51456-57).
Response to comments: Several
commenters disagreed with the
minimum/maximum timerrames for
review of EPA-lead documents. One
stated that some of these documents,
such as the Rl/FS and ROD, are
incredibly long and complex and such
deadlines would be impossible to meet.
The commenter argued that more time
for review and comment must be
provided but did not specify minimum/
maximum timerrames. Another
commenter argued that because
reviewing state agencies generally have
to coordinate with other state agencies,
the timeframe for state review of EPA-
lead documents should be 25 to 30
working days for RI/FSs, RODs, and
ARAR/TBC determinations. One
commenter stated that the proposed five
to 10 day timeframe for review of a
proposed plan is too tight and that 10 to
15 days would be more realistic.
Another commenter stated that a
minimum of 20 working days should be
provided for state review of NPL listings
and deletions, ARAR/TBC
determinations, RODs, and RDs. The
commenter also recommended a
minimum of 30 working days on the final
Rl/FS and proposed plan. The
commenter further suggested that all
review times be expressed in terms of
working and not calendar days.
Other commenters stated that EPA
should be held to the same review times
as states, and that EPA regions should
be authorized to approve and extend the
state review period without regulatory
limitations. One comment stated that
EPA should be bound by the same
requirements for response and
concurrence at state-lead sites as states
are at EPA-lead sites. The commenter
added that the rule should be revised so
that if EPA fails to meet its deadline for
comment, this will be considered a
concurrence.
Further, several commenters made
suggestions specifically regarding the
procedures for state review of HRS
packages. Two commenters stated that
states should be given the opportunity to
comment on and review sites before the
listing decision has been made. Another
commenter contended that 20 days is
not sufficient time to review sites and
that the minimum period for review
should be extended to 30 days.
EPA accepts the recommendation that
it be held to the same review times as
states when it reviews state-lead
documents. EPA believes that such
review times should be the same for
each phase of response regardless of
lead agency designation. However,
failure of either the state or EPA to
respond shall not be construed as
concurrence. While EPA intends to
make all efforts necessary to meet
agreed-upon deadlines, if EPA does not
act within specified timerrames, it
should not be interpreted as EPA's
approval of an action.
With regard to the comments that the
review times should be revised, EPA has
decided not to revise the number of days
specified in J 300.515(h)(3) of the NCP
for review of lead agency prepared
documents by the support agency; such
review times can be modified by a
SMOA and made legally binding in a
site-specific agreement, such as a
cooperative agreement or Superfund
state contract (the SMOA cannot be
used to alter review times on a site-
specific basis). If a different timeframe
agreement is not agreed to in the site-
specific agreement, EPA and the state
will be required to meet the deadlines
stated in the NCP. EPA also has decided
to use working days for all review time
periods and has changed the rule
accordingly.
With regard to the pre-remedial
process, states already are active
partners, and indeed, it is often the state
environmental agency that performs the
PA/SI. Even when the state does not
perform a PA/SI, it often provides
essential information concerning a
release to EPA. Thus, states generally do
provide input on potential NPL sites
before the listing decision has been
made. However, EPA is willing to work
with states to develop procedures for
receiving more input on the listing
decision itself. EPA believes that two
considerations must be kept in mind.
First, it may not be appropriate to
provide draft HRS packages to those
states that would be required by their
state law to release such documents to
the public upon request. EPA considers
these documents predecisional, and
does not release them to the public
during the rulemaking process. Second,
EPA believes that state review of NPL
sites should come toward the beginning,
rather than the end, of the HRS process;
in this way, new information provided
by states could be incorporated without
delaying a proposed NPL update.
In the deletion process, where state
concurrence on notices of intent to
delete are required, EPA is revising the
duration of review in $ § 300.435(e)(2)
and 300.515(c)(3) to 30 working days.
Final rule: Proposed J§ 300.425(e)(2).
300.515 (c) and (h) are revised as
follows:
1. EPA is changing the language in
5J 300.425(e)(2), 300.515(c) (2) and (3)
regarding the time limit for review of
releases considered for listing on the
NPL and for review of notices of intent
to delete releases from the NPL. The
timeframe is changed from a minimum
of 20 and a maximum of 30 calendar
days to 30 working days. The language
also notes that this timeframe will be
followed to the extent feasible.
2. Section 300.515(h)(3) is renamed to
refer to "support agency" and "lead
agency" and revised to read that the
lead agency shall provide the support
agency an opportunity to review and
comment on the Rl/FS, proposed plan,
ROD, RD, and any proposed
determinations on potential ARARs and
TBCs. The support agency shall have a
minimum of 10 working days and a
maximum of 15 working days to provide
comments to the lead agency on the RI/
FS, ROD, ARAR/TBC determinations,
and RD. The support agency shall have
a minimum of five working days and a
maximum of 10 working days to
comment on the proposed plan.
Name: Sections 300.505 and
300.515(d). Resolution of disputes.
Proposed rule: The preamble to
proposed subpart F stated that a region
and a state may adopt a dispute
resolution process to be used to resolve
any differences that might impede the
response process (53 FR 51457).
Differences should be addressed at the
staff level first and raised to
management if a mutually acceptable
solution is not attained. The preamble
further stated that a region and a state
could jointly raise the dispute to the
Assistant Administrator for Solid Waste
and Emergency Response for a final
determination. Alternatively, a region
and a state may establish a different
dispute resolution process in a SMOA.
Proposed § 300.515(d) stated that if
EPA intended to waive any state-
identified ARARs or did not agree with
the state that a certain state standard
was an ARAR, EPA shall formally notify
the state when it submitted the Rl/FS
report for state review or responded to
the state's submission of the Rl/FS
report. The preamble also stated that
EPA, operating in its oversight role for
CERCLA enforcement actions, would
resolve ARARs disputes between the
lead agency and PRPs.
Response to comments: Commenters
expressed dissatisfaction with the role
-------
8782
Federal Register / Vol. 55. No. 46 / Thursday, March 8. 1990 / Rules and Regulations
of EPA as the final judge in ARAR
disputes. One cornmenter suggested the
use of an "alternate dispute resolution"
process, with a third party offering a
non-binding opinion. Another
commenter proposed the incorporation
of a state/EPA dispute resolution into a
SMOA to be binding on both parties.
In response, EPA believes that its
responsibility to ensure that remedies
conform to the mandates of CERCLA
justify EPA's role in resolving ARARs
disputes. ARARs determinations are a
significant component of selecting such
remedies. Moreover, ARARs
determinations may directly affect the
cost of a remedy and EPA is required by
CERCLA to ensure consistent use of
Fund monies. EPA concludes, therefore,
that it is necessary and appropriate that
EPA, rather than a third party, will
resolve ARARs disputes.
EPA encourages, but does not require,
inclusion of dispute resolution clauses in
their SMOAs. Any resolution process
should encourage timely resolution of
disputes which could impede the
response process. EPA is currently
developing guidance on dispute
resolution procedures.
One commenter favored the resolution
of all disagreements with states
regarding ARARs waivers before the RI/
FS report is completed and before the
proposed plan is made available to the
public. EPA believes, as a policy matter,
this is an appropriate suggestion and
will, to the extent practicable, attempt to
resolve all ARARs disputes before the
proposed plan is issued to the public.
Because some ARARs may still be
unknown at the time of the RI/FS, it may
not be possible to resolve all ARARs
disputes by this time.
Another commenter recommended the
inclusion of PRPs into the dispute
resolution process when a PRP disagrees
with EPA's assessment of a site's
ARARs. This commenter suggested an
informal meeting between PRPs and the
EPA Regional Administrator to discuss
disagreements, followed by a written
decision by the appropriate Regional
Administrator. EPA believes that this is
not necessary because PRPs have the
opportunity to express disagreement
over ARARs decisions in their
comments on the proposed plan.
Further, if the PRP conducts an RI/FS
pursuant to a consent order or decree,
procedures for resolving ARARs
disputes are usually contained in such
orders or decrees.
Final rule: EPA is promulgating the
rule as proposed except that the
language on advisories, criteria or
guidance in { J 300.515(d), (d)(l) and (2)
and 300.515(h)(2) has been modified (see
preamble section on TBCs above).
Atone: Section 300.515(e)(l) and (2).
State involvement in selection of
remedy.
Proposed rule: Proposed § 300.515(e)
discussed the roles of EPA and the state
in the selection of remedy process. It
reflected the evolution of the EPA/state
partnership in recent years by providing
the state, when it was the lead agency,
with responsibilities in the selection of
remedy process. This new concept
would be applicable to both Fund-
financed and non-Fund-Financed actions
in which the state as lead agency would
recommend the remedy and provide
EPA an opportunity to concur with and -
adopt the remedy. This
recommendation/concurrence approach
was in keeping with the statutory
requirement to provide substantial and
meaningful involvement in the initiation,
development, and selection of remedial
actions (see preamble to proposed NCP
at 53 FR 51456-59).
Specifically. § 300.515(e)(l) described
how EPA and the state will interact
during the development and
concurrence of the proposed plan. The
lead agency shall prepare a proposed
plan upon conclusion of the RI/FS. Once
completed the support agency shall be
given an opportunity to comment and
concur; however, if agreement cannot be
reached the proposed plan shall be
published with a statement explaining
the support agency's concerns regarding
the plan.
Section 300.515(e)(2) provided further
information regarding EPA and state
involvement in the preparation of a
ROD. For all EPA-lead sites, EPA shall
prepare the ROD and provide the state
an opportunity to concur with the
recommended remedy. For Fund-
financed state-lead sites, EPA and the
state shall designate sites for which the
state shall prepare the ROD and seek
EPA's concurrence and adoption of the
remedy specified therein and sites for
which EPA shall prepare the ROD and
seek the state's concurrence. For non-
Fund-financed state-lead enforcement
response actions taken at NPL sites,
EPA and the state may designate sites
for which the state shall prepare the
ROD and seek EPA's concurrence in and
adoption of the remedy specified
therein.2* Either EPA or the state may
choose not to designate a site as state-
lead.
Response to comments: 1. Review and
publication of proposed plan. In cases
•« Non-Fund-financed itate-lead reiponie action
meant that a state it responding to a releate
pursuant to itate law, not CERCLA. CERCLA
enforcement functions may not be delegated to
atatei. except at specifically authorized under
CERCLA.
where the state has the lead, one
commenter questioned whether the state
should be allowed to publish a proposed
plan without EPA's prior approval.
EPA agrees that in Fund-financed
state-lead remedial response, EPA shall
always be given the opportunity to
review the proposed plan before it is
published. Whenever possible EPA and
the state shall try to come to agreement;
however, if no concurrence can be
reached, the state shall not publish the
plan and EPA may assume the lead for
completing the proposed plan and ROD.
At non-Fund-financed state-lead sites,
the state may publish the proposed plan
without EPA's approval; however, EPA
still retains the right to proceed under its
own CERCLA authorities if necessary to
ensure compliance with section 121 and
other pertinent provisions of CERCLA. If
the site is EPA-iead or EPA resumes the
lead from the state, the EPA may
publish the proposed plan without state
approval; however, as discussed below
the state must still provide its CERCLA
104(c) assurances before remedial action
can begin. As presented in the proposed
and final regulation, when agreement
cannot be reached the lead agency shall
include a statement describing the
support agency's concerns with the
proposed plan.
2. Development and selection of the
ROD. Many commenters strongly
supported concurrence by the support
agency for remedies recommended by
the lead agency, regardless of whether
the state or EPA has the lead. Several
commenters strongly supported this
concurrence as an important sign of
progress toward smoothing the
relationship between EPA and the states
by placing them on more equal ground.
These commenters stressed that
concurrence indicates that EPA
understands that the state is the
ultimate caretaker of Superfund sites,
and, therefore, must have a strong voice
in what happens at a site. Several
commenters emphasized that
concurrence should be based on the
principle that the lead agency is just that
and support agency oversight should be
minimized. Most commenters stressed
that this is the best process to maximize
the use of Limited government resources
and facilitate the timely cleanup of
Superfund sites.
A few commenters emphasized the
distinction between giving the state the
"opportunity to concur" and having
concurrence as a prerequisite in various
stages of EPA-lead actions. One
commenter gave the example that state
concurrence is not a prerequisite in the
issuance of a ROD by EPA. However.
EPA's concurrence is required in the
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8783
issuance of a ROD for state-lead Fund-
financed actions. One commenter stated
that "concurrence," as set forth in
§ 300.515(e), was contrary to the
meaning of the word. The commenter
noted that if the state does not concur
with the remedy, EPA should not go
forward with it.
EPA's intention in this section of the
proposed rule on concurrence was to
stress the opportunity for dialogue
between EPA and the state in the
remedy selection process. Although, as a
matter of policy, EPA retains
responsibility for selecting the remedy,
it is important for both parties to concur
in the selected remedy, whenever
possible, to avoid problems during
implementation of the remedy.
EPA has decided not to revise the
requirement that EPA's concurrence is
required before a state may proceed
with a Fund-financed response action.
However, this does not prevent a state
from attempting to proceed with the
response action using their own funds or
enforcement authorities, except as
limited by CERCLA section 122(e)(6). If
a state decides to pursue this avenue, it
may not claim credit pursuant to
§ 300.510(b)(2) for remedial action
expenses since EPA never concurred
with the selected remedy, and the state
action may be subject to possible
preemption under CERCLA section
122(e)(6) if the state uses its own
enforcement authorities to implement
such action. EPA will not be bound by a
state action or any EPA/state agreed-
upon action since new information may
arise and create the need for additional
response at the site in order for the
remedy to protect human health and the
environment.
Regardless of whether concurrence
was obtained on the selected remedy at
this stage in the response process, both
EPA and the state have another
opportunity available to them to express
disapproval of the selected remedy. The
state's CERCLA section 104 assurances
are required prior to the implementation
of remedial action conducted under
section 104 of CERCLA. If the state, at
this time, still disagrees with the
selected remedy, it may demonstrate
nonconcurrence with the remedy by
withholding its assurances. Likewise, if
EPA disagrees with the selected remedy,
EPA may withhold Fund money for
implementation of the remedial action or
section 122(e) approval for a PRP
remedial action. For state-lead sites, if
no agreement can be reached, the state
has the option of attempting to proceed
with implementation of the remedy
using its own funds, although EPA is not
bound by that action. EPA may not
proceed with a Fund-financed action
without the state's assurances.
Some comments received regarding
the criteria for lead agency designation
(53 FR 51456] also identified the need to
address the criteria used to designate
the lead in the preparation of the ROD
since the determination of whether the
state has the capability to prepare the
ROD is closely linked to this issue. As
discussed earlier, EPA is not
incorporating in today's rule any criteria
for lead agency designation. Instead a
decision regarding preparation of the
ROD shall be made in consultation with
EPA and the state on a case-by-case
basis. All agreements and decisions
shall be documented in a site-specific
agreement and not in a SMOA.
Final rule: Proposed § 300.515(e] is
revised as follows:
1. Language is added in final
S 300.515(e](l) to clarify that the state
may not publish a proposed plan which
EPA has not approved. In such event,
EPA may assume the lead from the state
at Fund-financed sites if EPA and the
state cannot agree on a proposed plan.
2. EPA is adding a clause in
§ 300.515(e)(2)(i) to designate the site-
specific agreement as the proper place
to identify whether EPA or the state
shall prepare the ROD at Fund-financed
state-lead sites.
3. EPA clarifies in § 300.515(e)(2) that
EPA must concur in writing with a state-
prepared ROD in order for EPA to be
deemed to have approved the state's
decision.
Name: Whether states should be
authorized to select the remedy at NPL
sites.
Proposed rule: Although the preamble
to the proposed revised NCP did not
solicit comments on the appropriateness
of authorizing states to select remedies
at NPL sites, many commenters
submitted comments calling for EPA to
authorize states to select remedies at
NPL sites, going further than the
proposed concurrence concept.
Response to comments: Comments
were received from states or state
organizations on this topic. Many
commenters believed that CERCLA
section 104(d)(l) currently allows EPA to
authorize states to select the remedy at
NPL sites. One commenter argued that
the NCP should spell out procedures and
criteria used to authorize states to select
a remedy under existing CERCLA
section 104(d)(l). Another commenter
stated that unless states are provided
the authority and responsibility to select
remedies at NPL sites, states believe
that their time and effort is better spent
working on non-NPL sites where they
are not duplicating effort with EPA.
States would be more reluctant to
request lead agency designation at an
NPL site.
One commenter contended that
authorizing states to select remedies is
consistent with CERCLA section
104(d)(l). If, however, EPA will not
completely authorize states to select
remedies, this commenter recommended
granting authority to states for sites
where remedial actions will cost up to
$10 million.
Another commenter stated that the
agency making a remedy
recommendation or actually selecting
the remedy should be a function of
which agency conducted the RI/FS at
the site.
In response, EPA acknowledges that
several states have their own
"superfund" programs and is
encouraged by their willingness to take
on an even greater role in cleaning up
sites. EPA believes, however, that it is
not appropriate at this time to turn over
the final decision-making authority on
remedy selection to states. While
Congress appeared to contemplate an
increased role for states in the remedial
process through enactment of CERCLA
section 121 (f), EPA believes that it
should retain primary responsibility for
the federal Superfund program. EPA
intends, however, that the concurrence
process provide a significant and
meaningful role for state involvement in
the cleanup process. EPA believes that ii
the state is the lead agency for the RI/
FS, it generally should recommend a
remedy for EPA's adoption. Further,
keeping the final responsibility for
remedy selection within EPA (rather
than dividing it among the 50 states and
EPA) furthers the goal of ensuring
consistency among remedies
implemented at sites.
EPA notes, however, that for non-
Fund-financed state-lead enforcement
sites, the state may select the remedy
($ 300.515(e)(2)(ii)}, although EPA shall
not be deemed to have approved of the
remedy absent formal concurrence. In
such cases, the state is proceeding unde
the authority of state law and could taki
a similar action whether or not the site
was the subject of CERCLA action.
Final rule: There is no rule language
on this issue.
Name: Section 300.515(f).
Enhancement of remedy.
Proposed rule: Section 300.515(0
provided that if a state determined that
a proposed Fund-financed remedial
action should comply with substantive
state standards that EPA has
determined are not ARARs, or with
state ARARs which EPA has determine
-------
Federal Register / Vol. 55. No. 46 / Thursday, March 8, 1990 / Rules and Regulations
to waive pursuant to CERCLA section
121(d)(4), the state shall fund the entire
additional cost associated with
compliance with such ARARs. The state
may be required to continue the lead for
the RD/RA or for the additional
requirements if it is a state-lead Fund-
financed project or to assume the lead
for remedial design and construction, or
for the additional requirements only, if
the project is federal-lead.
The proposed rule further provided
that if a state determines that a Fund-
financed remedial action should exceed
the scope of the selected remedy, i.e., an
enhancement of the selected remedy, the
state shall fund the entire additional
cost associated with such enhancement.
The state may be required to assume the
lead for the remedial design and
construction of the remedy or only for
the state-funded enhancement if that
enhancement can be conducted as a
separate phase or activity.
The proposed rule also reflected
CERCLA section 121(f)(2) which
provides that if a state determines that a
remedial action under sections 106 and
122 of CERCLA should attain state
requirements that EPA and a federal
district court have determined need not
be met in accordance with criteria in
CERCLA section 121(d)(4), the state
shall fund, and may be required to
undertake, the additional work.
Response to comments: Several
commenters questioned the authority of
EPA to require states to pay for
enhancements or to assume the lead in
cleanups when state ARARs are waived
or state standards are deemed not to be
ARARs. Commenters argued that EPA
has no authority under CERCLA to
impose these requirements on states,
even if a state rejects the EPA-selected
remedy in favor of a more extensive
cleanup.
In response, as a threshold matter, no
state is "required" to seek an
enhancement of a remedy selected
under CERCLA. The issue is, where a
state wishes to enhance or supplement
an EPA-selected remedy, under what
circumstances may it do so, and who
should pay for and supervise the
supplemental action. The answers to
these questions are complicated, and
require a thorough discussion of the
situations in which enhancements may
be appropriate, and EPA's view on state
and federal responsibilities for
enhancements.
It is important to note at the outset
that states already have significant
opportunities during the RI/FS process
leading up to remedy selection to
suggest to EPA that a proposed remedy
should attain certain standards, or that
the proposed remedy should be
expanded in scope. As explained earlier
in this preamble, the states may either
act as the lead or support agency for
Fund-financed actions (§ 300.500(b)),
and have a clear opportunity to identify
their potential ARARs—i.e..
promulgated state requirements that are
more stringent than federal
requirements (§ 300.400(g)(4))—early in
the process (5 300.400(g)(l) and (5)). The
lead agency will then seek agreement
from the support agency on a proposed
ROD; certain requirements will then be
found to be ARARs, and others may be
found not to be ARARs, or to be
appropriate for waiver under one of the
limited waiver categories set out in
§ 300.430(f){l)(ii)(C). The proposed plan
will then be issued for public comment,
and after consideration of state and
public comments, EPA'will select the
final remedy.
Through this process, EPA hopes to
reach agreement with the affected state
both on the appropriate scope of the
selected remedy, and on those state law
standards that should be met. EPA has
specifically discussed in this rule a
procedure for dispute resolution with the
states in order to foster agreement on
ARARs (5 300.525(d)(3) and (4)). Thus,
EPA contemplates that in many cases,
state ARARs issues, and extent of
remedy issues generally, will be
resolved during the remedial evaluation
and selection process outlined in the
NCP. Where such requirements do
become part of the EPA-selected
remedy, they would be paid for
according to the appropriate cost share
in CERCLA section 104 (for Fund-
financed actions).25
Even after the ROD has been signed,
the state may ask EPA to make changes
in the selected remedy, or to expand the
scope of the remedy. If EPA agrees that
the state's suggestions are appropriate
and necessary to protect human health
and the environment, EPA may include
the changes in the selected remedy
through a ROD amendment or
explanation of significant differences
(consistent with final rule
§ 300.435(c)(2)); in the case of a Fund-
financed remedy, EPA would share in
the costs of the modified or additional
activity. If EPA concludes that the state-
suggested changes or expansions are not
«• Where EPA tnd the itate disagree on • remedy
•election. • itate hai the option of withholding ill
itate assurances, thereby preventing the remedy
from proceeding as a Fund-financed action
(although EPA could initiate an enforcement action).
and for EPA enforcement actions, a process is
available for stales to challenge a decision by EPA
to waive an ARAR (CERCLA section 121(0(21(6)).
These are, however, extreme measures, and EPA's
goal is to reach agreement with states through the
normal remedy selection process.
necessary to the selected remedial
action, then EPA will not modify the
ROD or pay for (or order) the additional
action; however, EPA may still decide to
allow the additional action to proceed
concurrent with the EPA-selected
remedy.
Where EPA finds that the proposed
change26 or expansion is not necessary
to the EPA-selected remedy, but would
not conflict or be inconsistent with it,
EPA may agree to integrate the
proposed change or expansion into the
planned CERCLA remedial work, but
only if the state agrees to fund all
necessary changes or additions, and to
assume the lead for supervising the
state-funded component of the remedy
(or, if EPA determines that the state-
funded component cannot be conducted
as a separate phase or activity, for the
remedial design and construction of the
entire remedy).27 Although one
commenter questioned the propriety of
having the state pay for such changes,
EPA believes that it is both reasonable
and appropriate for the states to pay for
and supervise tasks that they have
requested and that EPA has not selected
as part of its remedy. Placing these
responsibilities on states is also
consistent with the approach set out by
Congress in CERCLA section
121(f)(2)(B), when a state seeks to
implement an ARAR that has been
waived by EPA.
For example, the state may want the
cleanup of ground water to attain water
quality levels beyond those required
under CERCLA. and thus may wish to
maintain a pump-and-treat system
longer than deemed necessary in the
ROD. Similarly, the state may request
additional work that falls outside the
scope of the design and construction at
the site, such as the extension of a water
line outside the Superfund site. Such
changes or expansions that would not
conflict or be inconsistent with the EPA-
selected remedy would generally be
accommodated, on the condition that
the state fund and supervise the change
or expansion. (EPA would provide
notice to the public where such
accommodations affect the selected
remedy.)
However, in cases where EPA
concludes that a state-proposed change
or expansion would conflict or be
inconsistent with the EPA-selected
" These proposed "changes" could include the
attainment of a particular state standard that EPA
found not to be an ARAR. or waived.
" Often the state is the most appropriate entity to
take the lead for such combinations of Fund-
financed and non-Fund-financed actions because of
contracting issues.
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 6. 1990 / Rules and Regulations 8785
remedy, the suggested change should
not go forward.
EPA does not believe it would be
appropriate to allow the state to proceed
with proposed changes to EPA's
lawfully selected remedy without EPA
approval. Indeed, to do so would be
tantamount to giving the states a veto
power over EPA remedial action
decisions, contrary to Agency policy
(discussed earlier in this preamble) that
EPA should retain the final authority to
select CERCLA remedies. Further,
allowing states to go forward with
actions inconsistent with those being
implemented by EPA would likely result
in delays in the cleanup of Superfund
sites, and could potentially create
unsafe working conditions for remedial
action contractors.
Consistent with this discussion, final
rule § 300.515(f) has been revised to
better reflect the conditions under which
state-suggested changes to, or
expansions of, EPA-selected remedial
actions should go forward.
Finally, as noted above, there is a
process provided for in CERCLA section
121(f)(2] for states to seek to require
remedial actions secured under
CERCLA section 106 to conform to
waived ARARs. EPA believes it is
appropriate for the final rule simply to
reference the procedures set out in the
statute, rather than attempt to
characterize them. Thus, the final rule
on this point has also been changed.
Final rule: Section 300.515(f) is revised
as follows:
(f) Enhancement of remedy. (1) A state may
ask EPA to make changes in or expansions of
a remedial action selected under subpart E.
(i) If EPA finds that the proposed change or
expansion is necessary and appropriate to
the EPA-selected remedial action, the remedy
may be modified (consistent with
§ 300.43S(c)(2)} and any additional costs paid
as part of the remedial action.
(ii) If EPA finds that the proposed change
or expansion is not necessary to the selected
remedial action, but would not conflict or be
inconsistent with the EPA-selected remedy.
EPA may agree to integrate the proposed
change or expansion into the planned
CERCLA remedial work if:
(A) The state agrees to fund the entire
additional cost associated with the change or
expansion; and
(B) The state agrees to assume the lead for
supervising the state-funded component of
.the remedy or, if EPA determines that the
state-funded component cannot be conducted
as a separate phase or activity, for
supervising the remedial design and
construction of the entire remedy.
(2) Where a state does not concur in a
remedial action secured by EPA under
CERCLA section 106, and the state desires to
have the remedial action conform to an
ARAR that has been waived under
f 300.430(0(1 )(ii)(C). a state may seek to have
that remedial action so conform, in
accordance with the procedures set out in
CERCLA section 121(f)(2).
Name: Section 300.515(g). State
involvement in remedial design/
remedial action.
Proposed rule: Proposed § 300.515[g)
read that for Fund-financed remedial
actions, the lead and support agencies
shall conduct a joint inspection to
determine that the remedy has been
constructed in accordance with the ROD
and the remedial design.
Response to comments: Several state
commenters contended that the states'
interest in cleaning up sites and their
participation in 10 percent of the costs of
remedial actions demands a much larger
role in remedial design/remedial action
than just a final joint inspection.
Therefore, more detailed and specific
language should be provided in the final
NCP as it pertains to state role in the
implementation of remedial actions.
Specific recommendations included that
both EPA and a state, regardless of
whether the action is EPA or state-lead,
should review and comment on the 30,
60, and 95 percent designs, as well as
agree on the final design and
specifications.
Also, commenters recommended that
both parties should discuss significant
changes and must consult prior to
reopening a ROD. Other suggested areas
for EPA and state interaction were bid
procurement, review of contract prior to
award, construction progress meetings,
construction oversight, change order
negotiations and approvals above limits
specified in the cooperative agreement.
One of the commenters stated that while
these issues may be addressed in a
SMOA, minimum requirements should
be specified in the NCP in the absence
of a SMOA.
EPA agrees that the state role during
remedial design and remedial action is
very important. However, rather than
specify the minimum requirements for
state involvement during remedial
design and remedial action in the final
rule, the final rule will specify that
state/EPA interaction during remedial
action will be described in site-specific
agreements: either a cooperative
agreement or Superfund state contract.
This will provide flexibility on a site-by-
site basis. The range of responsibilities
assumed by states under site-specific
agreements or SMOAs is necessarily
constrained by the legal limits on
delegation of EPA authority, e.g.,
limitations on delegating enforcement
authority.
Final rule: Section 300.515(g) will be
retitled as "State involvement in
remedial design and remedial action."
The following sentence is added to
§ 300.515(g): 'The extent and nature of
state involvement during remedial
design and remedial action shall be
specified in site-specific cooperative
agreements or Superfund state
contracts, consistent with 40 CFR part
35 subpart O."
Name: Section 300.520(a) and (c).
State involvement in EPA-lead
enforcement negotiations.
Proposed rule: Section 300.520(a)
stated that "EPA shall notify states of
response action negotiations to be
conducted by EPA with potentially
responsible parties during each fiscal
year." Section 300.520(c) stated: "The
state may be a party to such settlements
in which it is a participant in the
negotiations."
Response to comments: One comment
proposed revising § 300.520(c) so that
states may become a party to a
settlement whether or not they first
participate in the negotiations. Another
comment asked that { 300.520(a) be
expanded to require EPA to notify states
not only that PRP negotiations are going
to be held, but where and when. One
commenter stated that notice is
frequently too late for states to
participate meaningfully.
EPA recognizes that there may be
circumstances where the state is
involved in initial negotiations, decides
not to be heavily involved in all
sessions, but may want to sign the
negotiated decree without modifying it.
EPA agrees that the proposed revision
would better reflect the statutory intent
of CERCLA section 121(f)(l}(F), which
requires: "Notice to the state of
negotiations with potentially
responsible parties regarding the scope
of any response action at a facility in
the state and an opportunity to
participate in such negotiations and,
subject to paragraph (2), be a party to
any settlement." However, it is also
important to note that while it may be
appropriate to allow states to join
settlements at any time, EPA may
conclude settlement negotiations with
PRPs without state concurrence
(CERCLA section 121(f)(2)(C)).
Final rule: Proposed § 300.520(c) is
revised as follows: "The state is not
foreclosed from signing a consent decree
if it does not participate substantially in
the negotiations."
Name: Dual enforcement standards.
Proposed rule: Subpart F discussed
provisions for "substantial and
meaningful state involvement" in the
cleanup process. The subpart introduces
the EPA/state Superfund memorandum
of agreement (SMOA), a non-binding
agreement between EPA and a state to
-------
8786 Federal Register / Vol. 55, No. 46 / Thursday. March 8. 1990 / Rules and Regulations
define respective governmental roles for
state participation in pre-remedial,
remedial and enforcement response
actions. The SMOA recognized state
leadership while preserving EPA review
and concurrence powers, and EPA's
right to proceed under CERCLA to
ensure compliance with section 121 and
other provisions of CERCLA. At EPA-
lead sites, the state may disagree with
EPA's choice of remedy. Section 300.505
described the procedures to develop
SMOAs. Section 300.515 outlined state
involvement in remedial actions.
including a discussion of what options
are available when states and EPA
disagree on cleanup standards.
Response to comments: EPA received
comments stating that the proposed NCP
was unclear on whether states have the
right to require PRPs to meet more
stringent state requirements in addition
to CERCLA-specified ARARs for a
Fund-financed or an enforcement action.
The large number of comments EPA
received on this issue reflects a strong
concern that dual and potentially
conflicting standards will be enforced
by EPA and states. EPA acknowledges
that this is an area requiring further
review and evaluation. EPA believes,
however, that mechanisms in the final
NCP can be used to minimize the
possibility of conflicting standards
imposed upon PRPs.
One such mechanism is the SMOA.
An important purpose of SMOAs is to
establish a working relationship
between EPA and a state on
coordinating their respective
involvement in remedy selection and
enforcement strategies at sites
throughout that state. Another
mechanism is the concurrence process
described in the NCP. The degree to
which EPA (or another federal agency)
and a state can concur on each other's
remedies will reduce the need for EPA
to take a separate action at a site or for
the state to challenge remedies selected
by EPA which are covered by CERCLA
sections 121(f)(2) or (3). The final NCP
places great emphasis on the
concurrence process (see 5 300.515{e)(2))
and on dispute resolution (see preamble
section above) to encourage EPA, other
federal agencies and states to resolve
differences among them and select the
single remedy for a site that will fulfill
the objectives and requirements of each
agency.
A commenter objected to the
statement that EPA silence on a state-
lead remedy (selected under state law)
cannot be construed as concurrence and
that EPA retains the right to proceed
with a remedy under CERCLA. In
response, EPA may not be an active
participant in negotiations between a
state and PRPs at state-lead sites but
EPA encourages states to notify EPA of
such negotiations and seek EPA
concurrence on the remedy selected. In
the preamble to the proposed NCP,
however, EPA cautioned that EPA will
not be bound to any decisions made by
a state if EPA does not concur on the
remedy (see 53 FR 31458). EPA believes
that it has a responsibility to bring an
action under CERCLA when necessary
to protect human health and the
environment. EPA intends that the
processes established in the final NCP
will reduce the need for such action but
EPA must maintain its ability to perform
statutory mandates.
Other commenters contended that
states should not be allowed to contest
an EPA-lead remedy if they did not
participate in negotiations, and
suggested that some mechanism be
included in the NCP to require EPA and
state participation and concurrence in
all remedial action settlements at NPL
sites. A similar comment recommended
that EPA and states be joint signatories
on more settlements. In response, EPA
encourages concurrence by both EPA
and a state but does not believe that it is
necessary to require such concurrence
on all settlements or remedies. EPA and
states are encouraged to plan ahead and
decide on the extent of their
involvement in the work necessary to
reach settlements and decide on
remedies. EPA and the state can also
agree that even if one agency is not
substantially involved in the work, that
agency may still sign or concur on the
settlement or the ROD. In fact,
§ 300.520(c) of the final NCP provides
that a state is not foreclosed from
signing a consent decree if it does not
participate substantially in the
negotiations. In addition, a state is not
required to participate in settlement
negotiations in order to challenge a
remedy under CERCLA section 121(f)(2)
or (3). EPA believes, however, that
involving the state in such negotiations
may reduce the circumstances under
which a state would resort to a statutory
challenge.
Finally, a commenter recommended
that the NCP grant states that
participate in settlement negotiations for
actions taken under CERCLA sections
106 or 122, the right to review, comment
on and approve/disapprove work
undertaken by PRPs. In response, a state
may participate in settlement
discussions for actions to be taken
under sections 106 or 122. The oversight
activities that may be conducted by a
state, however, are limited by the extent
.. .. hich EPA can delegate enforcement
responsibilities under CERCLA section
106. States may approve or disapprove
work by PRPs when conducting an
enforcement action under state law.
Final rule: There is no rule language
on this issue.
Subpart G—Trustees for Natural
Resources
Section 107(a)(4)(C) of CERCLA
imposes liability for the injury,
destruction, or loss of a natural
resource, including the costs of a natural
resources damage assessment, resulting
from the release of hazardous
substances. Section 107(f)(l) of CERCLA
provides that only properly designated
federal trustees, authorized
representatives of an affected state, or
Indian tribes can pursue a section
107(a)(4)(C) action. Clean Water Act
(CWA) section 311(f) imposes similar
liability for discharges of oil and
hazardous substances into navigable
waters of the United States.
Pursuant to section l(c) of Executive
Order 12580 (52 FR 2923, January 29.
1987), and in accord with CERCLA
section 107(f}(2)(A) and section 311(f) of
the Clean Water Act, the Secretaries of
Defense, the Interior, Agriculture,
Commerce, and Energy are among the
agencies that are designated in the NCP
as federal trustees for natural resources.
Those federal trustees act on behalf of
the President in assessing damages to
natural resources from discharges of oil
or releases of hazardous substances,
pollutants, or contaminants. Subpart G
outlines the designations of federal
trustees under CERCLA. Although the
1986 amendments to CERCLA
necessitated few changes to the NCP
provisions on natural resources, the
major objective for this proposed
revision is to make the subpart more
readable and understandable to those
who are not familiar with trustee agency
authorities. Because the primary
purpose of this subpart is to list natural
resource trustee agency designations so
as to ensure prompt notification as
required by CERCLA, the proposed
changes reflect an overriding concern
that trustee jurisdictions be described as
accurately as possible.
Section 301(c) of CERCLA requires the
promulgation of rules for the assessment
of damages for injury to, destruction of.
or loss of natural resources resulting
from a discharge of oil or a release of a
hazardous substance under CERCLA
and the Clean Water Act. Pursuant to
Executive Order 12580, section ll(d), the
responsibility to promulgate these
regulations has been delegated to the
Department of the Interior (DOI). DOI
has promulgated rules for the
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations 8787
assessment of damages for the injury to,
destruction of, or loss of natural
resources (see 43 CFR part 11). Parts of
those rules were struck down by the
U.S. Court of Appeals for the District of
Columbia Circuit on July 14,1989, and
remanded to the Department of the
Interior for further consideration. See
State of Ohio v. U.S. Department of the
Interior. 880 F.2d 432 (D.C. Cir. 1989),
and State of Colorado v. U.S.
Department of the Interior, 880 F.2d 481
(D.C. Cir. 1989).
The use of the procedures described
in DOI's rule, 43 CFR part 11, is optional.
However, the results of an assessment
performed in accordance with the DOI
rule by % federal or state trustee, or
Indian tribe, if reviewed by a federal or
state trustee, shall be given the status of
a rebuttable presumption in an action to
recover damages for injuries to,
destruction of, or loss of natural
resources. Whether or not the
procedures in 43 CFR part 11 are
followed, a trustee agency may decide
to proceed with a range of information
gathering and other trust-related
activities.
The following are summaries of
comments on the proposed subpart G
and EPA's responses.
Name: Section 300.600. Designation of
federal trustees.
Existing rule: Section 300.72 of the
1985 NCP designated those federal
officials who are to act on behalf of the
public as trustees of federal natural
resources. It also described the types of
resources that the agencies manage and
gave examples of the resources that
might be under their trusteeship.
Proposed rule: In the proposed rule
(renumbered § 300.600), EPA attempted
to clarify and define as accurately as
possible the federal agencies
responsible for specific resources. It did
this by delineating in the paragraph
headings the federal agency or type of
federal agency responsible for natural
resources. In addition, EPA proposed to
change the narrative to describe in more
detail the resources that agencies
manage and to give examples of
resources that might be under an
agency's trusteeship.
The proposed rule designated the
Secretary of Commerce as a trustee. The
proposed rule also provided that the
Secretary shall act with the concurrence
of other federal agencies when the
resources or authorities of other
agencies are involved. The Secretary is,
however, a trustee in his own right also,
pursuant to various statutory
authorities.
The proposed rule also described
federal agency jurisdiction over certain
natural resources. The 1985 NCP
designated the Secretary of Commerce
as the trustee for natural resources in or
under "waters of the contiguous zone
and parts of the high seas * * *." The
proposed rule includes under the
Secretary's jurisdiction, the natural
resources "in or under tidally influenced
waters, the waters of the contiguous
zone, the exclusive economic zone, and
the outer continental shelf * * V
The proposed rule also deleted the
1985 NCP's (§§ 300.72(a) and (b))
exclusion of lands or resources in or
under U.S. waters. This was proposed
because federal trusteeship derives
primarily from authority to manage or
protect affected resources regardless of
where these resources are located.
Response to comments: I. Territorial
sea—definition. One commenter asked
if subparts D and G will be revised to
reflect the new definition of "territorial
sea" in the January 1989 Presidential
Proclamation.
The term "territorial sea" is used in
the NCP only in the definition of
"contiguous zone." "Territorial sea" is
not defined in the NCP but is defined in
CERCLA section 101(30) as having the
same meaning provided in CWA section
502. This section defines the term
"territorial sea" as "the belt of the seas
measured from the line of ordinary low
water along that portion of the coast
which is in direct contact with the open
sea and the line marking the seaward
limit of inland waters, and extending
seaward a distance of three miles." On
December 27,1988, the President issued
,a Proclamation (No. 5928, 54 FR 777,
January 9,1989) extending the territorial
sea of the United States to 12 nautical
miles from the baselines of the United
States determined in accordance with
international law. However, the
Presidential Proclamation provides that
nothing therein "extends or otherwise
alters existing federal or state law Oi-
any jurisdiction, rights, legal interests, or
obligations derived therefrom * * *."
Therefore, the CWA definition of
territorial sea has not been revised by
this proclamation. Accordingly, EPA
believes that it is unnecessary to change
the use of territorial sea in the NCP.
2. Trustees'authority. One commenter
stated that trustee actions are
authorized by CERCLA, but no specific
responsibilities are delineated. The
commenter stated that the main purpose
of subpart G is to indicate the
responsibilities of trustees, not to be a
"plan" or other listing of their activities.
However, one commenter recognized the
merit of including in subpart G examples
of the kinds of activities that OSC/RPMs
and others could expect of trustees. The
commenter thought that the purpose of
the subpart was not clearly understood
in the preamble and should be clarified.
Another commenter asserted that
proposed § 300.600(b) could be
construed as limiting trustees' activities
to enumerated activities, and should be
clarified, since trustees have many
additional authorities other than those
enumerated in that section.
The purpose of subpart G is not to be
an exclusive listing of the
responsibilities of natural resource
trustees, but to better inform the public
of natural resource trustee designations.
Proposed § 300.615 outlines some
responsibilities of all trustees in general
and federal trustees in particular.
However, those responsibilities listed
are not exclusive. Proposed § 300.615(e)
lists some actions which may be taken
by any trustee. Those actions are
described as including but not being
limited to certain enumerated actions.
Nowhere in the preamble to the
proposed rule or in the proposed rule
itself is the suggestion that the listed
activities are the only activities which
trustees may take. Trustees may act
pursuant to any other authority they
have besides the NCP. However, to
clarify the issue, EPA has changed the
final rule language in the introduction to
§ 300.615{c) to read "Upon notification
or discovery of injury to, destruction of,
loss of. or threat to natural resources,
trustees may, pursuant to section 107(f)
of CERCLA or section 311(f)(5) of the
Clean Water Act, take the following or
other actions as appropriate:". The
addition of "take the following or other
actions as appropriate" is intended to
highlight that the enumerated actions
are not the only actions a trustee might
take under CERCLA or the Clean Watei
Act, but are only examples of actions a
trustee might take. EPA has also revise)
the final rule language in the
introduction to § 300.615(e) to clarify
that the trustee is acting pursuant to the
Clean Water Act and CERCLA. The
clarification is intended to highlight tha
trustees may also act pursuant to
whatever authority they have and that
the examples of responsibilities listed
stem only from CERCLA and the Clean
Water Act. EPA has also revised the
introduction to g 300.815(d) to specify
that the trustees' authority includes, bv
is not limited to the enumerated action
As to the comment concerning
( 300.600(b), EPA believes that nothing
in that proposed or final section limits
the trustees' authority to act in the
proper circumstances. The section doe
not enumerate all the activities which
the trustees may undertake, it merely
describes situations under which they
may act pursuant to CERCLA and the
-------
8788
Federal Register / Vol. 55, No. 46 / Thursday. March 8. 1990 / Rules and Regulations
Clean Water Act. Those situations are
when "there is injury to, destruction of,
loss of, or threat to natural resources as
a result of a release of a hazardous
substance or a discharge of oil."
However, to clarify that the rule does
not limit trustees to act under other
authorities, EPA is changing the rule
language in § 300.600(b) to read that
trustees are authorized to act "pursuant
to section 107(f) of CERCLA or section
311(f)(5) of the Clean Water Act" in the
listed instances.
3. Authority of Secretary of
Commerce. One commenter believed
that proposed § 300.600(b)(l) implied
that the Secretary of Commerce acts on
behalf of other federal agencies with
authorities to manage or protect natural
resources in coastal or marine areas but
has no management or protection
authorities himself and suggested that
the rule language be changed to reflect
that the Secretary is a trustee in his own
right.
Another commenter questioned
whether the requirement in
§ 300.600(b)(l) that the Secretary of
Commerce (through NOAA] obtain the
concurrence of other federal agencies
before it acts is lawful. The commenter
noted that this is particularly important
where a federal agency may be a PRP,
and may have the incentive to diminish
the actions of the Department of
Commerce and therefore reduce its
potential liability. The commenter urged
that the "concurrence" requirement be
dropped.
Certain natural resources (e.g., within
coastal and marine areas) are indeed
under the jurisdiction of the Department
of Commerce. EPA has clarified final
§ 300.600(b)(l) to read: "Secretary of
Commerce. The Secretary of Commerce
shall act as trustee for natural resources
managed or protected by the
Department of Commerce or by other
federal agencies and that are found in or
under waters navigable by deep draft
vessels, * * * (remainder as
proposed)."
Specific natural resources in areas
under the trusteeship of DOC may also
be managed or protected under statutes
administered by other federal agencies.
Therefore, it is appropriate that the
Secretary of Commerce shall, whenever
practicable, seek the concurrence of the
other agency when there is overlapping
jurisdiction. Such concurrence is not
required by law, however, and therefore,
EPA will revise 5 300.600(b)(l) to
eliminate the requirement of mandatory
concurrence of another federal agency
before the Secretary of Commerce takes
an action with respect to an affected
resource under the management or
protection of that agency. Instead the
revised rule provides that the Secretary
of Commerce shall, whenever
practicable, seek such concurrence.
Final rule: EPA is revising proposed
§ 300.600 as follows:
1. EPA is revising the introduction to
8 300.600(b) to make it clear that
trustees are authorized to act "pursuant
to section 107(f) of CERCLA or section
311(f)(5) of the Clean Water Act" given
the listed circumstances. Trustees may
also act pursuant to whatever other
authority they may possess.
2. Section 300.600(b)(l) is being
revised to clarify that some natural
resources are managed or protected by
the Secretary of Commerce. It is being
further revised to eliminate the
requirement of concurrence of another
federal agency before the Secretary of
Commerce acts with respect to an
affected natural resource under the
management or protection of the other
federal agency. Concurrence of the other
federal agency shall be sought whenever
practicable, pursuant to the revised rule.
Name: Section 300.610. Indian tribes
as trustees for natural resources under
CERCLA.
Proposed rule: For purposes of a
release or threatened release of a
hazardous substance which causes the
incurrence of response costs, the 1986
amendments to CERCLA provide that an
Indian tribe may bring an action for
injury to, destruction of, or loss of
natural resources belonging to, managed
by, controlled by, or appertaining to
such tribe, or held in trust for the benefit
ef such tribe, or belonging to a member
of such tribe if such resources are
subject to a restriction on alienation.
The proposed rule provided that the
tribal chairmen (or heads of the
governing bodies), or other person
designated by tribal officials, are
trustees for those natural resources. The
proposed rule provided that the tribe, if
it designated a person other than the
chairman (or head of the tribal
governing body), notify the President of
the trustee designation. The tribal
trustee would have similar
responsibilities to state and federal
trustees under the proposed rule.
Response to comments: 1.
Notification—timeliness of notice. A
commenter noted that tribal resources,
either on or off-reservation, may be
affected by off-reservation Super-fund
sites. The commenter suggested that the
NCP should clearly state that tribal
natural resources trustees must be
notified when a tribe's resources are
injured by an oil discharge or a release
of hazardous substances because early
and proper notice will help Indian tribes
protect their limited resource base by
assuring timely assessments and
maximum protective efforts.
EPA realizes that tribal resources, like
other natural resources, may be affected
by off-reservation Superfund sites.
Pursuant to § 300.615(b), trustees are
responsible for designating to the
Regional Response Teams (RRTs), for
inclusion in the Regional Contingency
Plan, appropriate contacts to receive
notifications from the on-scene
coordinators (OSCs)/remedial project
managers (RPMs) of potential damages
to natural resources. Therefore, under
the final rule, if tribal trustees (or the
Secretary of the Interior, as appropriate)
have notified the RRT of an appropriate
contact, they will likely receive the early
notification they seek.
2. Trustee designation. A commenter
wanted EPA to contact affected tribes to
determine who will serve as tribal
trustee for Superfund activities. The
final rule provides that the tribal
chairmen (or heads of the governing
bodies) of Indian tribes, or a person
designated by tribal officials to act on
behalf of Indian tribes are natural
resources trustees for certain categories
of natural resources. For other
categories of resources, the Secretary of
the Interior continues to function as
trustee.
Normally the tribal chairman (or head
of the governing body of the tribe) will
be the natural resource trustee.
However, tribal officials may choose to
designate another person as trustee.
When those officials designate another
person as trustee, the final rule provides
that the tribal chairman or heads of the
tribal governing bodies notify the
President of the trustee designation.
EPA in the past has contacted states to
learn of state trustee designations and
will contact federally recognized Indian
tribes to learn of tribal trustee
designations.
In contrast to CERCLA, under CWA
section 311, Indian tribes are not
trustees and thus may not bring actions
for injury to natural resources pursuant
to that Act. For purposes of the Clean
Water Act and for certain circumstances
under CERCLA, where the United States
continues to act as trustee on behalf of
an Indian tribe, the Secretary of the
Interior will function as trustee of those
natural resources for which the Indian
tribe would otherwise act as trustee.
Therefore, § 300.610 is being revised to
eliminate the reference to authority to
act of an Indian tribe when there is a
discharge of oil.
3. Tribal resources. A commenter
thought that the proposed rule failed to
recognize the scope of tribal resources,
e.g., hunting, fishuig, and water rights.
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations 8789
EPA's description of natural resources
in proposed § 300.600 was not intended
to be an exclusive list, but only to give
some examples of natural resources. It
would be impossible to list every type of
natural resource. CERCLA section
101(16) defines "natural resources" as
including land, fish, wildlife, biota, air,
water, ground water, drinking water
supplies, and other such resources
belonging to the federal government, a
•tate, or local government, or an Indian
tribe, or if such resources are subject to
a trust restriction on alienation, to any
member of an Indian tribe.
As to the commenter's specific
concern about hunting, fishing, and
water rights, EPA believes that those
rights are not themselves natural
resources. The game to be hunted, the
fish to be caught, and the water to be
used are the resources, not the rights to
those resources. Therefore, no change to
rule language is necessary.
4. Natural resource damage
assessments. One conunenter suggested
that the language in the preamble to the
proposed rule (at 53 FR 51460) stating
that a natural resource damage
assessment performed by an Indian
tribe, when reviewed by federal or state
natural resource trustees, will be
allowed the rebuttable presumption,
should be changed.28 The commenter
suggested that the language should be
changed to reflect that damage
assessments performed by Indian tribes
jointly with federal or state natural
resource trustees would qualify for the
rebuttable presumption. The commenter
noted that similar language is found in
the preamble to the natural resource.
damage assessment regulations at 53 FR
5168 (February 22,1988).
EPA agrees with the commenter.
When federal and state trustees and
Indian tribes work closely together on
assessments, such assessments may
qualify for a rebuttable presumption.
Final rule: Proposed § 300.610 is
revised as follows:
1. The second sentence is revised to
read: "When the tribal chairman or head
of the tribal governing body designates
another person as trustee, the tribal
chairman or head of the tribal governing
body shall notify the President of such
designation."
»• Seclion 107(f)(2)(C) of CERCLA provide* thai
•ny determination or assessment of damage* for
purposes of CERCLA or section 311 of the Clean
Water Act has the force and effect of a rebuttable
presumption on behalf of the trustee in any
administrative or judicial proceeding under
CERCLA or section 311 of the Clean Water Act if
nude by a federal or state trustee in accordance
with the regulations promulgated under CERCLA
section 301 (c).
2. The last sentence is revised to read:
"Such officials are authorized to act
when there is injury to, destruction of,
loss of, or threat to natural resources as
a result of a release of a hazardous
substance."
Name: Section 300.615.
Responsibilities of trustees.
Proposed rule: The proposed rule
reorganized and substantively changed
S 300.74 of the 1985 NCR It sought to
provide better information on the
actions trustees may take to carry out
their responsibilities. The proposed rule
required cooperation and coordination
when there are multiple trustees
because of coexisting or contiguous
natural resources or concurrent
jurisdiction. It also described the
responsibilities of all trustees in general,
and of federal trustees in particular.
Finally, in accord with the amendment
of CERCLA, the proposed rule deleted
the option of pursuing claims against the
Fund for natural resource damage
assessment and restoration of natural
resources.
Response to comments: 1. .
Coordination— a. Multiple trustees.
One commenter suggested that the final
rule should discuss "lead trustee"
designation and exactly what
responsibilities and authority the lead
trustee has for the coordination of
assessment activities by multiple
trustees. Another commenter asked if
three-party agreements among the
appropriate federal agency, the Indian
tribe, and the state will be available in
promoting cooperation.
EPA believes that it is important that
only one person (i.e., the lead agency
OSC or RPM) manage activities at the
site of a release or potential release.
When there are multiple trustees, EPA
recommends that a lead authorized
official be designated to coordinate all
aspects of the natural resource damage
assessment investigation, and planning,
including federal trustees' participation
in negotiations with PRPs as provided
under CERCLA section 122(j)(l). This
coordination is designed to ensure
efficient response actions and avoid
duplication of efforts.
An authorized official is a federal or
state official to whom is delegated the
authority to act on behalf of the federal
or state agency designated as trustee, or
an official designated by an Indian tribe,
to perform a natural resource damage
assessment. (See the Department of the
Interior natural resource damage
assessment rules at 43 CFR 11.14(d).) A
lead authorized official is a federal or
state official authorized to act on behalf
of all federal or state agencies, or an
official designated by multiple tribes
when there are multiple tribes, affected
because of coexisting or contiguous
natural resources or concurrent
jurisdiction (43 CFR 11.14(w)). The DOI
damage assessment rules encourage the
cooperation and coordination of
assessments that involve multiple
trustees because of coexisting or
contiguous natural resources or
concurrent jurisdiction. The DOI
regulations also contain examples of a
lead authorized official's responsibilities
in a damage assessment. He acts as
coordinator and contact regarding all
aspects of the assessments and acts as
final arbitrator of disputes if consensus
among the trustees cannot be reached
regarding the development,
implementation or any other aspect of
the Assessment Plan. The lead
authorized official is designated by
mutual agreement of all the natural
resource trustees. Pursuant to the
damage assessment regulations (at 43
CFR 11.32(a)(l)(ii)(AHD)). if consensus
cannot be reached on a lead authorized
official: (1) When the natural resources
being assessed are located on lands or
waters subject to the administrative
jurisdiction of a federal agency, a
designated official of the federal agencj
shall act as the lead official; (2) when
the natural resources being assessed ar
located on lands or waters of an Indian
tribe, an official designated by the
Indian tribe shall act as the lead official
and (3) for all other natural resources fc
which a state may assert trusteeship, a
designated official of the state agency
shall act as lead official.
The final rule suggests that where
there are multiple trustees, because of
coexisting or contiguous natural
resources or concurrent jurisdictions,
they should coordinate and cooperate i
carrying out their responsibilities as
trustees. EPA has substituted the word
"should coordinate and cooperate" for
the words "shall coordinate and
cooperate" in final ( 300.615(a). EPA hi
made this change because one trustee
cannot compel another trustee to
coordinate and cooperate in carrying o
trust responsibilities, no matter how
desirable that coordination and
cooperation might be. However, EPA
wishes to encourage such coordinatior
Three-party agreements are not
excluded by the NCP. Therefore,
coordination and cooperation may
include three-party agreements if
necessary to facilitate the
responsibilities of the trustees.
b. Investigations. One commenter
suggested that biological assessment
groups or technical assistance groups
formed in various EPA regions provid
model for coordination that could be
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
valuable nationwide, and the preamble
might include mention of these as
mechanisms to implement CERCLA
section 104(b)(2).
Regional planning and coordination of
preparedness and response actions is
accomplished through the Regional
Response Team (RRT). Such
coordination may include biological
assessment groups or other technical
groups. Several EPA regional offices
already include biological and technical
assistance groups. Typically the groups
are comprised of representatives from
the Department of the Interior, U.S. Fish
and Wildlife Service, the Department of
Commerce (NOAA), and state
departments of environmental
conservation under the direction of an
EPA chairman.
c. Mandatory coordination. One
commenter suggested that language in
proposed §§ 300.615(c), 300.410(g), and
300.430(b)(7) should be changed to
delete the words "as appropriate"
referring to coordination of trustees'
efforts. This language should be
strengthened to be consistent with
CERCLA section 104(b)(2). Such
coordination would minimize
duplicative efforts and costs in natural
resource damage assessments and Rl/
FSs, and would lead to more settlements
under section 122(j).
Section 104{b)(2) of CERCLA provides
that the "(President shall * * * seek to
coordinate the assessments,
investigations, and planning under this
section with such federal and state
trustees." EPA agrees that in most
places in the final rule the term "as
appropriate" is not necessary. The term
is not in section 104(b)(2) and is not
needed to implement that section. EPA
will eliminate the term "as appropriate"
from §§ 300.410(g) and 300.430(b)(7), as
the commenter requested, as well as in
§{ 300.1350) and 300.305(d). However,
EPA will retain the term "as
appropriate" in § 300.615(c). That
section discusses the types of actions
which a trustee may take under
CERCLA. The trustee may have already
taken the action or the action may not
be necessary or desirable. Therefore, it
is necessary to retain the term "as
appropriate" in that section.
EPA has also revised § 300.315(c) to
require the OSC to make available to
the trustee information and
documentation that can assist the
trustee in determination of actual or
potential natural resource injury from oil
discharges. EPA has added the following
sentence to the end of $ 300.315(c): "The
OSC shall make available to the trustees
of the affected natural resources
information and documentation that can
assist the trustee in the determination of
actual or potential natural resource
injuries." EPA has revised § 300.315(c) to
facilitate coordination between the OSC
and the trustee, and to make the
provision on oil discharges consistent
with the provision on release of
hazardous substances (see
§ 300.160(a)(3J).
As an editorial change, EPA is also
adding the words "the trustee" in
$ 300.160(a)(3), BO that it reads: "The
lead agency shall make available to the
trustees of affected natural resources
information and documentation that can
assist the trustees in the determination
of actual or potential natural resource
injuries." The addition of the words "the
trustees" does not substantively change
the meaning of the section, but
emphasizes that the trustees make the
determination of injury to natural
resources.
2. Notification—a. Criteria. A
commenter suggested that the section on
trustees should also provide criteria for
notifying them.
CERCLA section 104(b)(2) and final
NCP § 300.615(c) provide criteria for
notification of trustees. The statute
requires the President to promptly notify
appropriate federal and state natural
resource trustees of potential damages
to natural resources resulting from
releases under investigation pursuant to
section 104(b). Pursuant to § 300.135(c)
of the final rule, the OSC/RPM shall
collect pertinent facts about the release,
including the potential impact on natural
resources. This information is in turn
used to comply with § 300.135(j) and (k)-
b. Not dependent on OSC/RPM. One
commenter noted that natural resource
trustee notification should not be
dependent upon a decision by the OSC/
RPM as to whether resources are
affected by the release. The federal and
state trustee agencies should be notified
of the release; trustee agencies have
both the expertise to determine the
likelihood of injury to their resources
and the responsibility for making the
determination. The commenter
suggested that this issue should be
clarified in the preamble to the final rule
by incorporating the following language:
"The OSC or lead agency is responsible
for ensuring that state and federal
trustees are notified promptly of natural
resources that may be exposed to, may
be at risk from, or may be injured by
discharges or releases."
EPA agrees that natural resource
trustee notification should not be
dependent upon a decision by the OSC/
RPM as to whether resources are
affected by the release. EPA also agrees
that the lead trustee should make the
determination of whether resources
under its jurisdiction are affected. The
final rule is unchanged in this regard
because EPA believes that the final rule
§ 300.1350) and (k) adequately address
the commenter's concern.
c. Duty to notify mandatory. One
commenter argued that "as appropriate"
or other phrases qualifying either the
responsibility to notify, or the timing of
notification, incorrectly lead OSCs and
RPMs to view trustee notification as
discretionary. The commenter suggested
that language in the preamble briefly
explain the intent or limitations of "as
appropriate" or similar qualifying
phrases, such as is done for those same
phrases in the preamble of subpart ] on
dispersants, to make it clear that the
intent of the NCP provision is that
trustees be notified.
EPA agrees that the OSC/RPM has
the mandatory duty to notify the trustee
of discharges or releases that are
injuring or may injure natural resources
under a trustee's jurisdiction. Final
S 300.1350) codifies this requirement.
The phrase "as appropriate" has been
deleted from the second sentence of
S 300.135(j). EPA also inadvertently
omitted necessary language and
included unnecessary language in the
second sentence in proposed
$ 300.1350). Therefore, EPA has revised
that sentence to read: "The OSC or RPM
shall seek to coordinate all response
activities with natural resource
trustees." The words "seek to"
coordinate were added to track the
language of section 104(b)(2). The words
"* * * should consult with the natural
resources trustee in determining such
effects and • • •" were deleted from
the second sentence because those
words may have implied that the OSC
had a role in determining whether there
was injury or potential injury to natural
resources, when in fact that is a sole
determination of the trustee.
3. Damage assessments—a.
Qualifications of assessor. One
commenter suggested that pursuant to
$ 300.B15(c)(4). EPA should identify the
qualifications that must be
demonstrated for an individual to assess
damages following 43 CFR part 11.
The qualifications that must be
demonstrated for an individual to assess
damages are determined by the trustee.
The Department of the Interior
regulations specify how to conduct a
damage assessment in order to qualify
for the rebuttable presumption, but the
qualifications of the person conducting
that assessment is a question for each
trustee to determine according to the
needs of the trustee for the injured
resources in question.
b. Negotiations. One commenter
suggested that the following language,
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8791
which is similar to DOI's natural
resource damage assessment rules, be
included in § 300.615: "State and federal
trustees are not required to conduct a
natural resource damage assessment to
effectively participate in settlement
negotiations. State and federal trustees
need not conduct a natural resource
damage assessment in order to agree to
a covenant not to sue for natural
resource damages."
The preamble to the DOI regulations
(at 53 FR 5169, February 22,1988)
concerning natural resource damage
assessments contains language noting
that it is not necessary to conduct a
damage assessment in order to
effectively participate in settlement
negotiations. EPA agrees with the DOI
position and further believes that such
an assessment is not a prerequisite to a
covenant not to sue. Therefore, since the
preamble to the DOI regulations
provides the requested change already,
no change to the NCP rule language is
necessary.
c. Duty to perform. A commenter felt
that the statements in the subpart that
the federal trustees "will" or "may" act
pursuant to CERCLA section 107 and
Clean Water Act (CWA) section
311(f)(5) attempt to water down the
direct statutory command in those
provisions that the trustees "shall"
assess damages and carry out other
trusteeship obligations. Another
commenter suggested that the language
in § § 300.600(a) and 300.615(c) that is
discretionary or unclear should be
changed to state that the trustees "shall"
carry out their duties established in
CERCLA section 107(f) and CWA
section 311(f)(5).
Section 107[f)(2)(A) confers authority
on federal trustees to "act on behalf of
the public as trustees for natural
resources under this Act and under
section 311" of the Clean Water Act and
to "assess damages" for federal natural
resource injury, destruction or loss for
purposes of CERCLA and section 311 of
the Clean Water Act. Neither CERCLA
nor the Clean Water Act require trustees
to perform any other function. Other
actions which the trustees may perform
pursuant to CERCLA and the Clean
Water Act are discretionary, to be
performed as necessary on a case-
specific basis.
The language in CERCLA section
107(f) and section 311(f)(5) of the Clean
Water Act providing that the trustee
"shall" act as trustee or "shall" assess
damages does not require action by the
trustee. Such language merely means
that the trustee or his delegee are the
only persons authorized to act as
trustees or to assess damages.
Performance of the functions of a trustee
is discretionary under CERCLA and the
Clean Water Act, based on case-specific
circumstances. Therefore, final
§ 300.615(c)(3) provides that trustees
"may, pursuant to section 107(f) of
CERCLA or section 311(f)(5) of the Clean
Water Act. take the following or other
actions as appropriate", including
carrying out damage assessments. And
as noted earlier, a trustee may choose to
act under other authority in addition to
sections 107 and 311.
d. Coordination. A commenter urged
EPA to insert additional language that
encourages the lead agency to
coordinate cleanup levels with natural
resource damage assessments to the
greatest extent possible.
EPA has already done much of what
the commenter asks in § 300.430(b)(7)
(proposed as § 300.430(b)(6)). Pursuant
to that section the lead agency shall, if
natural resources are or may be injured
by the release, ensure that state and
federal trustees are promptly notified in
order that the trustees may initiate
appropriate actions, including those
identified in subpart G of this part. The
subsection further requires the lead
agency to seek to coordinate necessary
assessments, evaluations,
investigations, and planning with state
and federal trustees. As to coordination
of cleanup levels, EPA believes that the
decision as to whether selected cleanup
levels satisfy natural resource trustee
concerns is a decision for the trustee to
make.
4. Funding. A commenter suggested
that EPA, consistent with legal
obligations, should construe sections
lll(b)(2)(B) and 517(c) of SARA to allow
funding of natural resource damage
assessments. The commenter urged EPA
to seek amendment of section 517, if it is
not possible to provide funding under
current law. The commenter also noted
that many states cannot carry out this
responsibility without financial support
from the Fund.
Section 517(c) of SARA prohibits
expenditures from the Fund to pay
trustees' claims for natural resources
damage assessment and restoration of
natural resources. The SARA conference
report states, "(TJhe conference
agreement follows the House bill in
deleting natural resource damage and
assessment claims as a Superfund
expenditure purpose." H.R. 99-962,99th
Congress, 2d Session, at 321 (October 3,
1986).
As to the commenter's request that
EPA seek amendment of SARA to
permit funding of natural resource
damage assessments, EPA does not take
positions on proposed amendments to
statutes in rulemaking proceedings.
5. Federal trustees—covenant not to
sue. A commenter asserted that while
the preamble to the proposed rule
mentions that the OSC/RPMs "shall
coordinate the federal trustees'
participation in negotiations with PRPs
as provided under section 122(j)(l)" (53
FR 51461), the proposed rule does not
reflect the language in section 122(j)(l).
The commenter suggested that a new
provision be included in § 300.615 to
provide for (1) Notification to trustees
by OSC/RPMs of negotiations with
PRPs, and (2) covenants not to sue for
damages to natural resources under the
trusteeship of a federal trustee. The
commenter asserted that the proposed
NCP does not cover section 122
settlement provisions, but that
consideration should be given to
including the requirement in section
122(j) regarding federal natural resource
trustee notification of proposed
settlements with PRPs. The commenter
added that early decisions as to the
nature and amount of involvement must
be made on the basis of available
information, and that late notification
and involvement may interfere with the
ability to pursue natural resource trust
authorities under CERCLA.
CERCLA section 122(j)(l) provides
that "[WJhere a release or threatened
release of any hazardous substance tha
is the subject of negotiations under this
section may have resulted in damages <
natural resources under the trusteeship
of the United States, the President shal
notify the federal natural resource
trustee of the negotiations and shall
encourage the participation of such
trustee in the negotiations." The final
rule (§ 300.615(d)(2)) already provides
for trustee participation in negotiation.'
between the United States and PRPs tc
obtain PRP-fmanced or PRP-conducted
assessments and restorations for injun
resources or protection for threatened
resources. The final rule is consistent
with statutory requirements in CERCL
section 122(j).
The authority of the federal trustees
contained in proposed and final NCP
I 300.615(d)(2) to negotiate with a PRF
already includes discretionary author]
to agree to a covenant not to sue for
natural resource damages. However, t
clarify that authority EPA will revise
§ 300.615(d)(2) to read that federal
trustees have authority to agree to
covenants not to sue, as appropriate.
CERCLA section 122(j)(2) provides foi
such discretionary covenants if the PI
agrees to undertake appropriate actic
necessary to protect and restore the
natural resources damaged by the
release or threatened release of
hazardous substances.
-------
8792
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
6. States. A commenter suggested that
the lead agency should have the
responsibility for notifying state trustees
of negotiations with PRPs, and
encouraging state trustees to participate
in settlement negotiations. The
commenter suggested that § 300.615(c)
should be revised to acknowledge that
state trustees may participate in
negotiations as well.
Section 300.520 of the NCP
implements CERCLA section
121(f){l)(F). Section 300.520(a) of the
NCP already requires EPA to notify
states of response action negotiations to
be conducted by EPA with PRPs during
each fiscal year. After notification, the
state then has the responsibility to
notify its trustees of such negotiations
and to encourage their participation.
Pursuant to § 300.520(b), the state, in
turn, must notify EPA of such
negotiations in which it intends to
participate. Finally, pursuant to
§ 300.520(c), the state may be a party to
such settlements. Given the foregoing
provisions, EPA believes the
recommended rule change is not
necessary.
7. Damages. A commenter suggested
that the word "damage" should be
changed to "injury" when referring to
"damage" to natural resources. While
the relevant statutes and regulations use
the terms "damages" and "injury" in
different contexts, EPA uses the terms
as follows for purposes of the NCP.
"Damages" means the amount of money
sought by the natural resource trustees
as compensation for injury to,
destruction of, or loss of natural
resources, as set forth in section 107(a)
or lll(b) of CERCLA. Pursuant to
CERCLA section 107(a), damages also
include the reasonable costs of
assessing injury, destruction or loss of
natural resources. "Injury" means a
measurable adverse change, either long-
or short-term, in the chemical or
physical quality or the viability of a
natural resource resulting either directly
or indirectly from exposure to a
discharge of oil or the release of a
hazardous substance. "Injury"
encompasses injury, destruction, or loss
of natural resources.
Final rule: Proposed §§ 300.615,
300.135(j), 300.160(a)(3), 300.305(d),
300.315(c), 300.410(g) and 300.430(b)(7)
are revised as follows:
1. Section 300.615(a] has been revised
to read: "Where there are multiple
trustees * * * they should coordinate
and cooperate in carrying out these
responsibilities."
2. In final § 300.615(b), the word
"damages" has been changed to
"injuries."
3. The introduction to § 300.615(c) has
been changed to read as follows: "Upon
notification * * * trustees
may * * * pursuant to section 107(f) of
CERCLA or section 311(f){5) of the Clean
Water Act take the following or other
actions as appropriate: * * *."
4. The introduction to S 300.615(d) is
revised to read: "The authority of
federal trustees includes, but is not
limited to the following actions: * * *."
5. Section 300.615(d)(2) has been
revised to read: "Participate in
negotiations * * * threatened
resources and to agree to covenants not
to sue, where appropriate."
6. The introduction to § 300.615(e) has
been revised to read: "Actions which
may be taken by any trustee pursuant to
section 107(f) of CERCLA or section
311(f)(5) of the Clean Water Act include,
but are not limited to, any of the
following: * * V
7. Sections 300.1350), 300.305(d),
300.410(g) and 300.430(b)(7) are revised
to delete the phrase "as appropriate"
and to state that "the OSC or RPM shall
geek to coordinate all response activities
with the natural resource trustees."
8. A new sentence is added to the end
of § 300.315(c) on OSCs making
information available to trustees.
9. The word "trustees" is added to
§ 300.160(a)(3).
Subpart H—Participation by Other
Persons
The focus of this subpart is on those
authorities of CERCLA that allow
persons other than governments to
respond to releases and to recover those
response costs. Although this subpart is
new, it revises and consolidates
provisions from current NCP S 300.25 on
Nongovernment Participation and
( 300.71 on Other Party Responses into
one place in the NCP. Subpart H also
incorporates the new authorities from
CERCLA, as amended, which address
participation by other persons. The
following discusses comments received
on the proposed Subpart H and EPA's
responses.
Name: Section 300.700(c). Consistent
with the NCP.
Proposed rule: The proposed section
revised and consolidated provisions
from the 1985 NCP (§§ 300.25 and
300.71). The proposed section provided
that any person may undertake a
response action to reduce or eliminate a
release of a hazardous substance. It also
set out a list of those NCP provisions for
which compliance would be required hi
order for a response action by "other
persons" (i.e., persons who are not the
federal government, a state, or an Indian
tribe) to be considered "consistent with
the NCP" for purposes of cost recovery
actions under CERCLA section 107.
Response to comments: \. Substantial
compliance. EPA received diverse
comments on its proposal to set out
requirements that must be met by
private parties in order for their actions
to be"consistent with the NCP" for the
purposes of cost recovery under
CERCLA section 107. Some commenters
approved of the list of requirements,
noting that such a list affords parties
some certainty as to what type of
response actions will qualify for cost
recovery under section 107; indeed,
commenters suggested that they would
not undertake cost recovery actions if
they did not have clear guidance on
what constitutes "consistency with the
NCP."
On the other hand, an even greater
number of commenters objected to
EPA's proposal to define "consistency
with the NCP" as a long list of largely
procedural requirements, and urged EPA
not to address the issue. A large number
of commenters expressed the concern
that defendants in private cost recovery
litigation will seize on EPA's list as the
definitive criteria for evaluating
consistency with the NCP, and search
for even minor discrepancies between a
private party's actions and the criteria
in an effort to block a cost recovery
action. The effect will be to discourage
private party cleanups. They request
that EPA leave the question of
"consistency with the NCP" to case-by-
case adjudication in the federal courts.
However, assuming the NCP does
address this issue, they suggested that
the rule should be clear that all of the
listed elements of NCP consistency need
not necessarily be met in a given case,
and that substantial compliance with a
given element is sufficient.
Several other commenters argued that
EPA's criteria do not belong in the NCP
as binding rules. A more appropriate
forum is a non-binding guidance
document, which can be applied to the
facts of a particular action. Another
commenter suggested that "consistency
with the NCP" does not require the
replication of the entire governmental
cleanup process. Activities that
contribute to an effective response
action should qualify for reimbursement,
even if they do not follow precisely each
of the requirements listed in subpart H
or do not result in a complete cleanup.
In response, EPA is sympathetic to the
perspectives expressed in the comments.
EPA believes Chat it is important to
encourage private parties to perform
voluntary cleanups of sites, and to
remove unnecessary obstacles to their
ability to recover their costs from the
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8. 1990 / Rules and Regulations
8793
parties that are liable for the
contamination. At the same time. EPA
believes it is important to establish a
standard against which to measure
cleanups that qualify for cost recovery
under CERCLA, so that only CERCLA-
quality cleanups are encouraged. EPA
has attempted to accomplish both of
these somewhat divergent goals.
EPA has continued the tradition of
identifying the universe of requirements
which are potentially relevant to private
party actions (this would not include
requirements that apply to
intergovernmental consultation, the
waiver of applicable requirements of
other laws, and other provisions that are
not appropriate for consideration by
private parties].2* However, EPA agrees
with commenters that this list should
not be construed as a fixed list of
requirements that must be met in order
for a party to qualify for cost recovery
under CERCLA section 107(a)(4)(B).
Thus, in the final rule (§ 300.700(c)(3)),
strict compliance with that list of NCP
provisions is not required in order to be
"consistent with the NCP"; the list is
provided in § 300.700(c}{5}-(7) as
guidance to private parties on those
requirements that may be pertinent to a
particular site.
Instead, in evaluating whether or not
a private party should be entitled to cost
recovery under CERCLA section
107(a)(4)(B), EPA believes that
"consistency with the NCP" should be
measured by whether the private party
cleanup has, when evaluated as a
whole, achieved "substantial
compliance" with potentially applicable
requirements, and resulted in a
CERCLA-quality cleanup. (CERCLA
section 107(a)(4)(B) requires that the
private party also show that the costs
incurred were "necessary" cleanup
costs.)
EPA believes that this formulation
achieves two critical goals. First, it
responds to commenters' concerns that
rigid adherence to a detailed set of
procedures should not be required in
order to recover costs under CERCLA
for private party cleanups. In addition,
the approach taken today protects EPA's
interest in ensuring that the benefit of a
right of action under CERCLA section
107(a)(4)(B) should only be available for
environmentally sound cleanups
•consistent with CERCLA requirements;
*• There are a number of NCP requirements thai
do not make tense for private parties, such as the
requirements for state assurances {{ 300.510). or
other provisions related to use of the Fund:
similarly, there are self-imposed restrictions on
governmental action that are not relevant to private
actions, such as the requirement that a site be listed
on the NPL before Fund-financed remedial action
may be taken ({ 300.425(b)(l)).
in essence, the more lenient "substantial
compliance" test should not be an
invitation to perform low quality
cleanups.
In order to achieve a "CERCLA-
quality cleanup," the action must satisfy
the three basic remedy selection
requirements of CERCLA section
121(b)(l]—i.e., the remedial action must
be "protective of human health and the
environment," utilize "permanent
solutions and alternative treatment
technologies or resource recovery
technologies to the maximum extent
practicable," and be "cost-effective"—
attain applicable and relevant and
appropriate requirements
(ARARsKCERCLA section 121(d}{4)).
and provide for meaningful public
participation (section 117). EPA believes
that these statutory requirements are
necessary to the achievement of a
CERCLA-quality cleanup. (Although
public participation is not an explicit
requirement in section 121 on remedy
selection, EPA believes that it is integral
to ensuring the proper completion part
of any CERCLA cleanup action, as
discussed below.) These requirements
are not new additions from the proposed
rule. Under the proposal, private parties
were required to strictly comply with the
detailed provisions of the NCP,
including provisions codifying these
statutory mandates (see final rule
5 300.430(f)(l)(ii)(A) (protectiveness), (B)
(ARARs), (D) (cost-effectiveness), (E)
(permanence/treatment), and
5 300.430(f)(3) (public participation)).
EPA has simply issued a substantial
compliance test while at the same time
identifying several requirements that
must be met in order to achieve
substantial compliance.
EPA's decision to require only
"substantial" compliance with
potentially applicable requirements is
based, in large part, on the recognition
that providing a list of rigid
requirements may serve to defeat cost
recovery for meritorious cleanup actions
based on a mere technical failure by the
private party that has taken the
response action. For example, EPA does
not believe that the failure of a private
party to provide a public hearing should
serve to defeat a cost recovery action if
the public was afforded an ample
opportunity for comment. A substantial
compliance test is appropriate as well in
light of the difficulty of judging which
potentially relevant NCP provisions
must be met in any given case. For
example, in most cases, a full range of
alternative remedial options should be
analyzed in detail as part of the
feasibility study ("FS"), yet in
appropriate cases, a "focused" FS—
under which fewer alternative options
would be studied—may be performed,
consistent with the NCP (see
§ 300.430(e)(l)). EPA also recognizes
that private parties generally will have
limited experience in performing
cleanups under the NCP, and thus may
be unfamiliar with the detailed practices
and procedures in this rather long and
complex rule; an omission based on lack
of experience with the Superfund
program should not be grounds for
defeating an otherwise valid cost
recovery action, assuming the omission
does not affect the quality of the
cleanup.80
The decision to define a substantial
compliance standard for private party
cost recovery actions under CERCLA
section 107(a)(4)(B) is within EPA's
discretion. CERCLA section 107(a)(4)(B)
provides that private persons may
recover only those costs
"incurred * * * consistent with the
NCP," and section 105(c) provides that
the President shall promulgate and
revise the NCP; thus, the statute directs
the President to establish requirements
for private cost recovery actions. In
exercising that authority, EPA could
have taken several different approaches
in the NCP: Establish identical
requirements for private and
governmental actions; establish a subset
of NCP provisions with which private
party cleanups must comply; or
alternatively, set a general standard of
compliance (e.g., "substantial
compliance") with certain requirements
for private party cleanups. In response
to comments, EPA has today elected to
pursue the third option.
EPA attempted to identify those NCP
provisions with which compliance
would not be necessary to meet the
"substantial compliance" test, but
concluded that a hard line cannot be
drawn on these questions, given the
considerable variability in types of
response actions, potential ARARs,
communities, etc. EPA found that what
may be a significant deviation from
procedures under one set of
circumstances may be less serious in
another (for example, some types of
contaminants may be susceptible to
only a limited number of remedial
technologies, resulting in a more limite
" EPA does not believe that this substantial
compliance standard will lead to low quality
cleanups, especially in light of the express
requirement for a "CERCLA-quality cleanup."
However, it should be noted that even where a ail
has been cleaned up "consistent with the NCP,"
EPA has the authority under CERCLA to take
appropriate action at the site should future releas
be discovered or future conditions so warrant. Se
CERCLA sections 10*(a)(l). 10S(e). 121(c) and 122
-------
8794
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
analysis of alternatives, and some
communities may express no interest in
a site, resulting in fewer public
meetings). Thus, this determination is
best left to the courts for a case-by-case
determination. A private party can, of
course, eliminate any risk or uncertainty
by meeting the full set of requirements
identified by EPA as potentially relevant
to private actions (see § 300.700(c)(5}-
(7)).
2. Not inconsistent with theNCP. One
commenter asked why § 300.700(c)
retains the language "not inconsistent
with the NCP" when EPA attempted to
revise this language elsewhere. Other
commenters opposed EPA's proposal to
delete the requirement in the current
NCP (§ 300.71(a)(2)) that govenur,f at
response actions must comply with the
same list of NCP provisions as private
parties in order to be "not inconsistent
with the NCP." They argued that private
party "consistency" requirements
should be streamlined and apply to both
private parties and governmental
entities. Another commenter suggested
that a section in the NCP on the meaning
of the phrase "not inconsistent with the
NCP," would offer significant
clarification on what constitutes
CERCLA responses and lead to the most
effective use of limited federal funds at
all sites. Several commenters claimed
that EPA applies a double standard by
specifying steps a private party must
take but not those that a governmental
body must take.
In response, CERCLA section 107(a)(4)
specifies a different burden of proof for
actions brought by the federal
government, states, or Indian tribes than
for actions brought by private parties.
Governmental response costs may be
recovered from responsible parties
unless they are shown to have been
incurred "not consistent with the NCP."
CERCLA section 107(a)(4)(A). By
contrast, private parties may only
recover other "necessary" costs incurred
"consistent with the NCP." The final
rule reflects this statutory distinction.
As to the commenters' request that
EPA further define when costs are "not
inconsistent with the NCP," several
points are important to note. First, the
CERCLA statute itself confirms that the
President should not be held to a
standard of strict adherence to all
provisions of the NCP. Section 121(a)
states:
The President shall select appropriate
remedial actions determined to be necessary
to be carried out under section 104 or secured
under section 106 which are in accordance
with this section and, to the extent
practicable, the national contingency plan.
and which provide for cost-effective
response. * * * [Emphasis added.]
The legislative history confirms that this
section has special meaning in the
context of the government's right to
recover costs "not inconsistent with the
NCP." As Senator Chafee stated in the
debate over the 1986 SARA
Amendments,
The legislation states that remedial actions
•elected by the President shall, to the extent
practicable, comply with the National
Contingency Plan [NCP]. This language is
intended to assure that alleged failures to
comply with the NCP shall not be available
as a defense to any liability in an
enforcement proceeding brought under
section 106 or 107. {Emphasis added.]
132 Cong. Rec. S14925 (daily ed., Oct. 3,
1986J.31
Consistent with this language, EPA
does not believe that immaterial or
insubstantial deviations from the
detailed set of NCP provisions should
serve to defeat a cost recovery action,
whether federal or private (although it
may influence the amount of costs
allowed). At the same time, EPA
believes that given the variability of
circumstances at Superfund sites, it is
impossible to define all cases (or to
establish a fixed rule) for which non-
compliance would be material. Thus,
whether or not governmental costs can
be shown to be "not inconsistent with
the NCP" should be judged by a review
of the cleanup action as a whole, not
based on a simple review of the cleanup
against the list of NCP provisions. EPA
believes that the application of these
principles is properly reserved to the
courts for resolution on a case-by-case
basis.
The concept that de minimis and
harmless deviations from specific NCP
provisions should not defeat a cost
recovery action is consistent with long-
standing judicial principles of harmless
error and materiality. It is also
consistent with the tenor and intent of
the CERCLA statute, that parties who
are liable for the contamination should
be held responsible for remediating it;
where a governmental or private party
undertakes the cleanup (in the face of a
lack of action by the responsible party],
it would be inequitable to allow the
responsible party to use minor
procedural discrepancies to defeat
reimbursement for an environmentally
sound cleanup.
3. Role of the courts. Several
commenters asserted that the criteria
proposed by EPA attempted to limit the
discretion of federal courts in
" The statement by Sen. Chafee goei on to note
that "|t]he language ii not intended to provide any
independent authority to EPA or other agenciei to
fail to apply, to overlook, ignore or waive any
standard, requirement, criteria or limitation
ettablithed under the law." Id.
determining what constitutes substantial
compliance with the NCP for making
CERCLA cost recovery awards. They
argue that EPA should not by regulation
attempt to establish matters that may be
in dispute entirely between private
parties.
In response, section 105 of CERCLA
provides EPA with considerable
discretion in establishing its plan for
responding to releases of hazardous
substances, pollutants and
contaminants. There is no requirement
that EPA promulgate a rule that would
contain identical standards for
governmental and private party
response actions, and indeed, as
discussed above, that would not make
sense in areas such as
intergovernmental coordination and
Fund balancing. EPA has also noted that
due to the variability of site
circumstances, some provisions may or
may not be applicable in specific cases,"
and the failure to comply with one or
more provisions may or may not be
material. Thus, this rule defines actions
as "consistent with the NCP" for the
purposes of section 107(a)(4)(B), when
the private party cleanup, evaluated as
a whole, is found to have achieved
"substantial compliance" with specified
requirements and resulted in a CERCLA-
quality cleanup; although a provision-
by-provision comparison is not required,
EPA has provided a list of those NCP
sections that are potentially relevant to
private persons. Thus, the final rule
provides a standard against which to
measure "consistency with the NCP,"
but does not eliminate the very
important role of the courts in deciding,
on a case-specific basis, what costs
should be awarded to the party that has
undertaken the cleanup.
As to the comment that EPA should
not issue regulations on this matter, EPA
disagrees that the interpretation of
section 107(a)(4)(B) is a matter "entirely
between private parties." First, the
government has a strong interest in
ensuring that cleanup actions that derive
a benefit from CERCLA section
l07(a)(4)(B)—a statute under the charge
of EPA—are performed in an
environmentally sound manner, thus, it
is appropriate to provide a standard or
measure of consistency with the NCP.
EPA also believes that it is an important
public policy to encourage private
parties to voluntarily clean up sites, and
to remove unnecessary obstacles to
their recovery of costs. Further, as noted
above, CERCLA directs the President to
promulgate and revise NCP
requirements (section 105(c)), and then
directs that those requirements should
be used as the standard for private cost
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8795
recovery (section 107(a)(4)); thus.
Congress contemplated that EPA would
issue standards to be used for cost
recovery actions.
4. Retroactivity. Some commenters
expressed the concern that PRPs may
attempt to impose the new definition of
"consistency with the NCP" on private
cleanups that are already complete or
underway. They assert that it should be
made clear that the rule does not apply
to private response actions initiated
prior to the effective date of the revised
NCP.
In response, EPA does not believe that
it is appropriate to grandfather cleanups
that are already "underway." Such a
position would result in an exemption
from this rule for actions that were
initiated prior to the effective date, but
which may continue for years (such as
long-term ground-water remediation
actions). Further, EPA does not believe
that this issue will pose a serious
problem to private parties for several
reasons. First, the rule's requirement of
"substantial compliance" with
potentially applicable NCP requirements
affords private parties some latitude in
meeting the full set of revised NCP
provisions. Second, private parties have
been on notice for over a year that EPA
intended to require compliance with the
principal mandates of CERCLA—those
required for a "CERCLA-quality
cleanup," as discussed above—as a
condition for being "consistent with the
NCP." (See CERCLA section 105(b),
directing EPA to incorporate the SARA
requirements into the NCP; and the
December 21.1988 proposed NCP (at
§ 300.700{c)(3)(i)(H), 53 FR at 51513).
proposing to list among the requirements
for "consistency with the NCP"
compliance with § 300.430(f}(3)(ii)
(protectiveness and ARAR compliance),
(f)(3)(iii) (permanence and treatment,
and cost-effectiveness), and (f)(2)
(public participation) (53 FR at 51507)).
Finally, the requirement for
"consistency with the NCP" has been a
precondition to cost recovery under
CERCLA section 107 since the passage
of the statute in 1980, and pursuant to
the 1985 NCP, consistency with the NCP
was measured by compliance with a
detailed list of NCP requirements; thus,
on-going actions should already comply
with the 1985 provisions.
5. Public participation. One
commenter asserted that EPA is
misapplying statutory requirements by
stating that private parties must engage
in the full panoply of public
participation procedures under
CERCLA. even though the statute
imposes these requirements only on
EPA. Because no governmental actions
are involved, no public process should
be required as a precondition of cost
recovery.
EPA disagrees. Public participation is
an important component of a CERCLA-
quality cleanup, and of consistency with
the NCP. The public—both PRPs and
concerned citizens—have a strong
interest in participating in cleanup
decisions that may affect them, and
their involvement helps to ensure that
these cleanups—which are performed
without governmental supervision —are
carried out in an environmentally sound
manner. Thus, EPA has decided that
providing public participation
opportunities should be a condition for
cost recovery under CERCLA. The rule
does not, however, require rigid
adherence to a set of procedural
requirements. For instance,
§ 300.700(c)(6) (proposed NCP
5 300.700(c)(3)(ii)(B)) provides that state
or local public participation procedures
may be followed, consistent with the
NCP, if they provide a substantially
equivalent opportunity for public
involvement
6. CERCLA section 103 reporting
requirement Another commenter
suggested that EPA has misapplied the
statutory notification requirements in
the proposed NCP. According to the
commenter, the proposal implies that
any violation of CERCLA's requirement
to report certain hazardous substance
releases to the National Response
Center (NRC) under CERCLA section
103(a) is grounds for holding a
subsequent response action inconsistent
with the NCP. The commenter suggests
that there is no substantive connection
between the reporting requirement and
the adequacy of a response action.
In response, the NCP requires any
person in charge of a facility or vessel to
notify the NRC of any releases of
hazardous substances into the
environment over a defined reportable
quantity (see § 300.405(b)). EPA believes
that this NCP requirement is integral to
EPA's decision as to whether a
government-funded or -supervised
cleanup is necessary at a site. Thus, the
failure to report such releases to the
NRC is an appropriate factor to consider
in evaluating whether a private party
has acted consistent with the NCP.
7. Specific comments on consistency
with the NCP. One commenter
suggested that rather than cross-
referencing overly broad sections of the
NCP to describe compliance for cost
recovery purposes, 5 300.700(c)(3)
should repeat or paraphrase each
requirement that must be met.
As explained above, the rule attempts
to aid private parties by identifying
those provisions that may be relevant to
voluntary cleanup actions. Repeating
each such provision in § 300.700 would
significantly complicate and lengthen
the section unnecessarily, as the reader
is clearly referred to the appropriate
sections by citation. Further, EPA has
made clear that rigid adherence to every
potentially relevant provision is not
required in order to be consistent with
the NCP.
Another commenter noted that for
several of the cross-referenced sections,
determining which subsection is
"pertinent to the particular response
chosen for the particular facility" is very
difficult.
In response, two general points
require clarification. First, as a threshold
matter, it appears that the commenter
may be confused by the roles and
responsibilities of "other persons" and
the "lead agency." In a private party
response action, the private party may
perform most of the functions of a lead
agency, except of course, waivers of
applicable laws, permit waivers, and
functions related to use of the Fund
(EPA has identified those sections of the
NCP that are potentially relevant to
private party cleanups hi § 300.700(c)
(5H7)); there is no support agency in a
private party cleanup action.
It is also important to repeat that rigid
compliance with every potentially
applicable NCP provision is not required
to establish that a private cleanup
action was "consistent with the NCP";
rather, the substantial compliance test
outlined above should be applied. With
these two caveats, EPA has attempted
to respond to the commenters' concerns
regarding the potential applicability of
particular sections of the NCP to private
party cleanup actions.
The following are specific examples
raised by the commenter where more
specificity on what is required for
recovery under section 107 is requested.
EPA's response is included in each
section.
a. Natural resource trustees. Must
private parties coordinate with trustees
of affected natural resources to
determine the injury to these resources
(§ 300.160(a)(3)) or to initiate
appropriate actions (§ 300.410(g))7
In response, § 300.160(a)(3) requires
the communication of information to
natural resource trustees that may assii
hi the determination of actual or
potential injury to the resources. Sectio
300.410(g) requires notification to the
trustees when natural resources have
been or are likely to be damaged, and
requires the OSC or lead agency to see
to coordinate, as appropriate, with
trustees for the performance of natural
resource damage assessments,
evaluations, investigations, and
-------
8796 Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
planning. Both sections are within the
universe of requirements that may
potentially apply to private party
cleanup actions, and compliance with
them may be important to ensuring a
cleanup consistent with the NCP.
b. Technology. What precisely must
private parties do to "encourage the
involvement and sharing of technology
by industry and other experts"
(5 300.400(c)(7))7
In response, § 300.400(c)(7) requires
the lead agency, to the extent
practicable, to encourage the
involvement and sharing of technology
by industry and other experts. EPA
believes that other persons should seek
the most appropriate technology and
expertise for a response action.
c. ARARs and TBCs. Must private
parties coordinate with the lead and
support agencies to identify ARARs, and
ensure that the two agencies notify each
other of the ARARs they identified
(5 300.400(g)(l) and (5))? What about
TBCs (§ 300.400(g)(3})?
In response, i 300.400(g)(l) and (2)
require the identification of applicable
requirements, and relevant and
appropriate requirements, respectively,
and specify the criteria upon which to
determine whether requirements are
ARARs. Section 300.400(g)(5) requires
the lead agency and support agencies to
notify each other as to identified
ARARs. Although these sections provide
no specific consultation process for
coordination of ARARs where there is
no support agency, EPA encourages
private parties to notify the agency
responsible for oversight, if any, of the
ARARs they have identified, in order to
ensure that such requirements have
been properly identified, and in order to
ensure that a CERCLA-quality cleanup
will be achieved (which includes the
attainment of ARARs). Section
300.400(g)(3) simply states that lead and
support agencies may, as appropriate,
identify TBCs for a particular release
and defines what TBCs are; here again,
however, it may be advisable for private
parties to seek the advice of the relevant
agency as to which guidance documents
should usually be followedi
d. Engineering evaluation/cost
analysis (EE/CAj. If PA and SI reports
are required for removals, why isn't an
EE/CA also required (5 300.415(b)(4))7
In response, the preamble to the
proposed rule correctly excluded
§ 300.415(b}(5)—relating to time and
dollar limitations on removal actions—
from the list of sections that may be
relevant to cleanups by other persons
(53 FR at 51461). However, due to a
typographical error, proposed rule
{ 300.700(c)(3)(i)(F) mistakenly excluded
( 300.415(b)(4}—relating to EE/CAs—
from the list of potentially relevant
provisions. This error has been
corrected in today's final
5 300.700{c)(5)(vi).
e. ARARs—exigencies. How does the
private party determine that the
"exigencies of the situation" prevent the
attainment of ARARs during removals
(§ 300.415(j) (renumbered as § 300.415(i)
in the final rule)?
In response, one of the requirements
for cost recovery under CERCLA section
107(a)(4)(B), as set out in today's rule, is
to attain a CERCLA-quality cleanup,
which includes the requirement to attain
ARARs—both "applicable
requirements" and "relevant and
appropriate requirements." However,
the NCP allows governmental agencies
to attain or waive ARARs; in the private
context, this possibility is more limited.
Governmental actions are taken under
the authority of CERCLA. and therefore
may invoke ARARs waivers under
CERCLA section 121(d)(4). However,
private party actions are not carried out
under CERCLA authority but simply
seek to take advantage of a right of cost
recovery provided under CERCLA
section 107 for certain types of actions;
therefore, waivers of applicable
requirements of federal or state law are
unavailable in such private party
cleanups. Similarly, the concept of
complying with applicable requirements
to the extent practicable for removal
actions, applies only to actions taken or
secured by the President (or his
authorized representative). (In
.emergency situations where an
immediate response action is required
by a private party, noncompliance with
an applicable requirement should not
necessarily bar a claim for cost
recovery.)
Private parties shall also comply with
relevant and appropriate requirements.
However, relevant and appropriate
requirements do not legally apply of
their own force to the private party
actions (see § 300.5); thus, where one of
the waivers in { 300.430(f)(l)(ii)(C) can
be justified, it may be appropriate for a
private party to waive a relevant and
appropriate requirement. Similarly,
when undertaking removal actions, a
private party need only comply with
relevant and appropriate requirements
"to the extent practicable"; best
professional judgment should be used in
determining which relevant and
appropriate requirements can
practicably be met. Private parties also
have some discretion to decide whether
requirements are relevant and
appropriate under the circumstances of
the release, using the criteria set out in
ft 300.400(g)(2).
8. Recovery pursuant to other federal
or state law. A commenter suggested
that it should be made clear in
{§ 300.700(c)(l) and (2) that those
sections only apply to section 107(a)
cost recovery actions and not to cost
recovery actions taken pursuant to other
federal or state law. The commenter
believes that the requirement of
consistency with the NCP for tens of
thousands of non-NPL, non-CERCLA
sites and spills for entitlement to cost
recovery from responsible parties will
discourage many cleanups normally
performed under state statutes.
Another commenter bebeved that the
NCP should recognize that cleanups
done pursuant to non-CERCLA federal
or state authority can be consistent with
the NCP. This could be accomplished in
one or more of the following ways. First.
as part of its deferral policies, the NCP
could state that cleanups qualifying for
deferral are presumptively consistent
with the NCP. The commenter stated
that deferral of an NPL site to a state
government should mean that the
remedial action is considered to be in
conformance with the NCP for the
purpose of cost recovery. This approach
would provide an incentive for prompt
settlement. Second, § 300.700(c) could be
revised to clarify that the list of NCP
provisions with which a private cost
recovery plaintiff must comply includes
the substantially similar provisions of
other authorities.
In response to the first comment it is
important to note that CERCLA section
107(a)(4)(B) does not require private
parties to conduct cleanups consistent
with the NCP; rather, it establishes a
right of action under CERCLA for cost
recovery in those cases where non-
governmental parties have incurred
necessary response costs consistent'
with the NCP. The result of not meeting
this standard is that cost recovery under
CERCLA may not be available;
however, this does not mean that the
action may not proceed, or that cost
recovery may not be available under
other federal or state law. Of course,
even if a party takes a cleanup action
under an authority other than CERCLA
(e.g., RCRA corrective action), it may
have a right of cost recovery under
CERCLA section 107 if the action was a
necessary response to a release of
hazardous substances, and was
performed consistent with the NCP.
On the deferral issue, the decision by
EPA to defer a site from listing on the
NPL for attention by another authority
does not represent a determination that
the response action to be taken will
presumptively be consistent with the
NCP. Indeed, EPA policy on deferral
-------
Federal Register / Vol. 55. No. 46 / Thursday, March 8. 1990 / Rules and Regulations 8797
contemplates situations in which sites
that have been deferred may still be
listed on the NPL for attention under
CERCLA, e.g., if the owner/operator
proves to be unwilling or unable to
accomplish the cleanup. See, e.g., S3 FR
30005 (August 9,1988). Each response
action taken under another authority
(e.g., RCRA) for which cost recovery is
sought under section 107(a)(4)(B) must
be justified on a case-by-case basis. As
to specific comments on a policy of
deferral to states, EPA has not made a
decision as to whether, or under what
circumstances, current deferral policies
should be expanded to include deferral
to states. EPA will consider all
comments concerning deferral to a state
authority or a non-CERCLA federal
authority separately from the NCP.
9. Compliance with state standards/
non-ARARs. A commenter asked, if a
state seeks to require additional
remediation, in excess of that required
by EPA (for example, in a section 106
order or a section 122 consent decree),
will such remediation be deemed to be
excessive, inconsistent with the NCP,
and not available for cost recovery
under CERCLA section 107(a)(4)(AJ?
In response, there may be situations in
which additional remediation, while not
"required" by the NCP, is "not
inconsistent with the NCP"; at the same
time, there may be cases where such
additional remediation is inconsistent
with the NCP. Such a determination
must be made on a case-by-case basis,
considering the facts of each case. The
issue is too complex to be resolved by a
simple statement in the final NCP rule.
10. Consistency with the NCP—
section 106/section 122 consent decrees.
A commenter alleged that there is a
double standard for site cleanups'
consistency with the NCP, one for
section 106 orders or section 122 consent
decrees, another for other persons to be
consistent with the NCP, with extensive
technical and public participation
requirements, many of which may not be
a part of a potential section 106 order or
section 122 consent decree. Another
commenter charged that the proposal
would create a non-rebuttable
presumption that severely
disadvantages defendants in private
cost recovery actions.
In response, the final rule requires
only "substantial compliance" with
those potentially applicable NCP
requirements, and a CERCLA-quality
cleanup, in order for a private party
action to be consistent with the NCP for
cost recovery purposes; thus, the
commenters' concerns (regarding non-
rebuttable presumptions and a stricter
standard for private party actions) have
largely been addressed. As to section
106/122 orders or decrees, those
documents implement remedies that
have been selected in accordance with
CERCLA and the NCP, and they contain
the cleanup standards necessary for
consistency with the NCP. EPA believes
that defendants will have acted
"consistent with the NCP" when they
comply with a section 106 order or a
section 122 consent decree.
11. Preauthorization. Section
300.700(d) provides a process under
which EPA may, in its discretion,
preauthorize Fund reimbursement for
necessary response costs incurred by
private parties as a result of carrying out
the NCP. In order'to qualify for
preauthorization, the requesting party
must establish, inter alia, that the action
will be "consistent with the NCP"; this
showing should be site-specific, based
on an evaluation of the list of potentially
applicable NCP provisions. Further,
where a PRP seeks preauthorization, the
rule provides that the action must be
carried out pursuant to an order or
settlement agreement with EPA. In both
cases, EPA's interpretation of
"consistency with the NCP" for the
purpose of CERCLA section 107(a)(4)(B)
would not override any site-specific
requirement as part of the
preauthorization or enforcement
processes.
12. Waivers. As discussed above,
certain provisions of the NCP (and of the
statute) are not appropriate to private
party response actions for which cost
recovery may be sought under CERCLA.
These include the permit waiver in
CERCLA section 121(e)(l) {§ 300.400(e))
and the waiver of applicable federal or
state requirements in CERCLA section
121(d)(4) (NCP § 300.430(f)(l)(ii)(B)). The
statute makes clear that those waiver
provisions are reserved for actions
carried out by the President (or his
delegate) or by a state or tribe under
CERCLA section 104(d)(l), or by a party
pursuant to an order or decree under
CERCLA section 106 or 122. The final
rule has been revised to make clear that
private parties that qualify for cost
recovery under CERCLA section 107 are
not entitled to the permit waiver of
CERCLA section 121(e)(l), and may not
invoke the waivers in CERCLA section
121(d)(4) for applicable requirements,
although "relevant and appropriate"
requirements may be waived upon a
proper showing under
S 300.430(f)(l)(ii)(C) of this rule.
Final rule: The proposed rule has been
revised as follows:
1. In order to more accurately reflect
the language of CERCLA sections
107(a)(4)(A) and (B), S$ 300.700(c)(l) and
(2) are revised to read:
(1) Responsible parties shall be liable for
•11 response costs incurred by the United
States government or a state or an Indian
tribe not inconsistent with the NCP.
(2) Responsible parties shall be liable for
necessary costs of response actions to
releases of hazardous substances incurred by
any other person consistent with the NCP.
2. Consistent with the response to
comment discussed above, the list of
NCP provisions that are potentially
applicable to private parties has been
placed in new $ 300.700(c)(5}-{7). and
consistency with the NCP has been
defined in revised § 300.700(c)(3) and
new $ 300.700(c)(4). Revised
S 300.700(c)(3) through (8) are as follows:
(3) For the purpose of cost recovery under
section 107(a)(4)(B) of CERCLA:
(!) A private party response action will be
considered "consistent with the NCP" if the
action, when evaluated as a whole, is in
substantial compliance with the applicable
requirements in paragraphs (e)(5) and (6) of
this setiton, and results in a CERCLA-quality
cleanup;
(ii) Any response action carried out in
compliance with the terms of an order issued
by EPA pursuant to section 106 of CERCLA,
or a consent decree entered into pursuant to
section 122 of CERCLA, will be considered
"consistent with the NCP."
(4) Actions under § 300.700(c)(l) will not be
considered "inconsistent with the NCP," and
actions under 5 300.700(c)(2) will not be
considered not "consistent with the NCP,"
baaed on immaterial or insubstantial
deviations from the provisions of 40 CFR part
300.
(5) The following provisions of this part are
potentially applicable to private party
response actions:
(i) Section 300.150 (on worker health and
safety);
(ii) Section 300.160 (on documentation and
cost recovery);
(iii) Section 300.400(c)(l), (4). (5), and (7)
(on determining the need for a Fund-financed
action); (e) (on permit requirements) except
that the permit waiver does not apply to
private party reipoiue actions; and (g) (on,
identification of ARARs) except that
applicable requirements of federal or state
law may not be waived by a private party;
(iv) Section 300.405(b). (c). and (d) (on
reports of releases to the NRC);
(v) Section 300.410 (on removal site
evaluation) except paragraphs (e)(5) and (6);
(vi) Section 300.415 (on removal actions)
except paragrapha (a)(2), (b)(2)(vii), (b){5),
and (I); and including { 3001415[i) with regan
to meeting ARARs where practicable except
that private party removal actions must
always comply with the requirements of
applicable law;
(vii) Section 300.420 (on remedial site
evaluation);
(viii) Section 300.430 (on RI/FS and
selection of remedy) except paragraph
(f)(l)(ii)(C)(fi) and that applicable
requirements of federal or state law may no
be waived by a private party;
(ix) Section 300.435 (on RD/RA and
operation and maintenance).
-------
8798
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
(6) Private parties undertaking response
actions should provide an opportunity for
public comment concerning the selection of
the response action based on the provisions
set out below, or based on substantially
equivalent state and local requirements. The
following provisions of this part regarding
public participation are potentially applicable
to private party response actions, with the
exception of administrative record and
information repository requirements stated
therein:
(i) Section 300.155 (on public information
and community relations);
(ii) Section 300.415(m) (on community
relations during removal actions);
(iii) Section 300.430(c) (on community
relations during RI/FS) except paragraph
(iv) Section 300.430(0(2), (3). and (6] (on
community relations during selection of
remedy); and
(v) Section 300.435(c) (on community
relations during RD/RA and operation and
maintenance).
(7) When selecting the appropriate
remedial action, the methods of remedying
releases listed in Appendix D of this part may
also be appropriate to a private party
response action.
(8) Except for actions taken pursuant to
CERCLA sections 104 or 106 or response
actions for which reimbursement from the
Fund will be sought, any action to be taken
by the lead agency listed in paragraphs (c)(5)
through (c)(7) may be taken by the person
carrying out the response action.
Name: Section 300.700(c). Actions
under CERCLA section 107(a).
Proposed rule: The proposed rule
summarized the various authorities
under CERCLA that are available to
recover the costs of response actions,
including a section 107{a) cost recovery
action. Proposed § 300.700(g) also
provided that implementation of
response measures by PRPs or by any
other person does not release those
parties from liability under section
107(a), except as provided in a
settlement under section 106 or 122 of
CERCLA or a federal court judgment.
Response to comments: 1. Settlement
policies — a. Mixed funding. One
commenter suggested that EPA should
become more forthcoming in providing
mixed funding in support of settlement
agreements. Greater use of this authority
would encourage settlement of cases by
cooperative parties, even where they do
not make up a majority of the PRPs.
EPA supports mixed funding
arrangements and is sympathetic to the
commenter' s concern that greater use be
made of mixed funding to accelerate
settlements. EPA plans increased use of
mixed funding in appropriate cases.
b. De minimis parties. A commenter
suggested that EPA should revise its
existing de minimis buyout provisions to
allow earlier resolution of claims against
de minimis parties. EPA supports
settlements with de minimis parties and
plans increased use of settlements with
de minimis parties in appropriate cases.
2. Notice. One commenter urged that
EPA should specifically note in the NCP
that it is EPA's position that a private
party need not provide notice to the
government before instituting a cost
recovery action because a notice
requirement serves no significant policy
goals and can only obstruct private
cleanups.
EPA agrees that a private party need
not provide notice to the government
before instituting a cost recovery action
against another private party, but such
party must provide concurrent notice to
the government. Pursuant to CERCLA
section 113(1), whenever any action is
brought under CERCLA in a federal
court by a plaintiff other than the United
States, the plaintiff must provide a copy
of the complaint to the Attorney General
of the United States and to the
Administrator of EPA.
3. Ripeness. According to one
commenter, EPA should urge (in the
NCP] that plaintiffs should not be
required to have incurred all of the
cleanup costs at a site before being
entitled to bring a section 107 cost
recovery action. The commenter
acknowledged that while it is logical to
require completion of cleanup actions in
order to protect public health, requiring
completion as a prior condition to the
bringing of a cost recovery action could
have an adverse effect on parties'
willingness to undertake costly cleanups
of hazardous waste releases. A party
may be reluctant to assume all of the
costs without some judicial assurance
on the issue of the ultimate liability for
cost recovery purposes. Few companies,
the commenter added, have the
resources necessary to completely fund
a large, unilateral cleanup, even if they
expect to be reimbursed.
In response, EPA agrees with the
commenter that a cost recovery action
need not await the incurring of all
response costs before it may be brought.
This interpretation is consistent with
CERCLA section 113(g)(2), which allows
courts to enter "declaratory judgments"
on liability that are binding on
subsequent cost recovery actions under
CERCLA section 107. Further, as the
commenter noted, requiring a party to
incur all costs before bringing a cost
recovery action may discourage and
delay cleanups, contrary to the intent of
Congress that sites be cleaned up
expeditiously.
4. Recoverable costs. One commenter
stated that the NCP should expressly
provide that the only limitation on the
nature of recoverable private response
costs deemed appropriate by EPA is that
they be consistent with the NCP.
Because the plaintiff in a cost recovery
action must bear the initial out-of-pocket
expenses itself, there is sufficient
private incentive to conduct cost-
effective response actions.
EPA disagrees with the commenter
that the only limitation on appropriate
recovery be that the costs have been
incurred consistent with the NCP.
Pursuant to CERCLA section
107(a)(4)(B), a person may be liable for
"any other necessary costs of response
incurred by any other person consistent
with the national contingency plan."
Therefore, plaintiffs must prove that
costs are both "necessary" and
"incurred consistent with the NCP."
5. Standard of liability. One
commenter stated that the proposed
NCP fails to specify the standard of
liability that ought to be applied by the
courts in private actions, although courts
have agreed that strict liability is
appropriate for government cleanup
actions under Superfund. The
commenter alleged that the Act does not
suggest that differing standards of
liability are appropriate under the
statute. The commenter argued that as
long as strict liability is applied in
government-initiated cases, it should be
applied as well to private cost recovery
claims.
EPA has long taken the position that
the liability of potentially responsible
parties is strict, joint, and several,
unless they can clearly demonstrate that
the harm at the site is divisible. This
standard of liability applies no matter
whether the plaintiff is governmental or
private.
6. Consistency with NCP—political
subdivisions. One commenter asserted
that EPA's inclusion of political
subdivisions of states as parties whose
actions are presumed to be consistent
with the NCP is contrary to the statute.
The plain words of the statute indicate
that only federal and state governments
and Indian tribes fall within section
107(a)(4)(A). EPA appears to be
assuming that local governments are
subsumed within the definition of states,
and thus are subject to the same cost
recovery presumption as states.
However, there are numerous provisions
in CERCLA in which states and local
governments are both separately
referred to—an illogical result if
Congress did not truly intend for the
latter to be considered legally different
entities from the former. Furthermore,
these provisions always referred to
these two entities as states or local
governments (or political subdivisions of
states), thereby reinforcing the
presumption that Congress intentionally
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
8799
differentiated between these two levels
of government. Therefore, the
commenter urged, EPA should revise
proposed § 300.700(c)(l) by deleting the
text "including political subdivisions
thereof * * * ." Such a change will
retain the presumption of consistency
with the NCP only for those parties for
whom Congress intended such a
preference.
EPA is revising the rule to be
consistent with the language in section
107(a)(4)(A). The issue of whether
political subdivisions can be treated like
states for purposes of cost recovery
actions under section 107 is a matter to
be left to the courts.
7. Not inconsistent with NCP—
governmental response actions. One
commenter asserted that EPA should not
delete language that defines what NCP
provisions constitute actions to be not
inconsistent with the NCP (see 53 PR
51462]. The commenter suggested EPA
should be clear in delineating the "not
inconsistent with" standard for all to
see and use on a case-by-case basis
consistent with the statute.
EPA believes that it is not necessary
to define what actions are "not
inconsistent with the NCP," and would
leave those determinations to case-by-
case decision-making. The "not
inconsistent" standard applies only to
removal or remedial actions conducted
by an agency of the federal government,
a state, or an Indian tribe. Governmental
bodies, particularly states, may have
programs similar to the NCP, that
achieve the same objectives, but are not
congruent with the NCP in every
respect. EPA believes that these
governmental bodies, consistent with
the statute, should have flexibility to
implement response actions and bring
cost recovery actions for those response
actions as long as the response actions
are not inconsistent with the NCP, even
if achieved by different methods.
8. Treble damages. A commenter
noted that CERCLA section 107(c)(3)
currently contains a provision for the
collection of punitive damages "in an
amount of at least equal to, and not
more than, three times" against
individuals who "without sufficient
cause" fail to carry out a CERCLA
section 104 or 106 administrative order.
The commenter asserted that this
provision has not been used by EPA to
recover damages from recalcitrant
parties who do not respond and
participate in the cleanup of wastes that
they are responsible for at a given site.
The commenter urged that recalcitrant
parties should not be led to believe that
the government will not seek to extract
punitive damages, or they may choose to
wait for government action at the
expense of delaying a voluntary
cleanup.
The commenter said that treble
punitive damages are especially
important where the identifiable
incremental cost of a response action
(assumed by a proactive company)
related to recalcitrant waste volumes
may be minimal. These damages, when
compared to a minimal total response
cost represent an incentive for early
cooperation by the potential
recalcitrant, and an incentive for EPA to
acquire funds to apply to a site
remediation project. The need for mixed
funding Superfund financing
requirements should also be reduced by
recalcitrant participation.
The commenter added that EPA's use
of treble damages in cost recovery
actions will provide further incentive for
prompt response actions before and
after waste sites or other areas are
listed on the NPL. Such action would
help to limit the number of sites listed
on the NPL and encourage independent
action by both government (e.g.,
municipal] and private parties.
It has been and continues to be EPA's
policy that seeking treble damages in
cost recovery actions against
recalcitrant parties who fail to comply
with administrative orders under
sections 104 or 106 is an important tool
and EPA considers its use in appropriate
cases.
Final rule: Proposed § 300.700(c)(l) is
revised to delete the reference to
political subdivisions.
Name: Section 300.700(e). Recovery
under CERCLA section 106(b].
Proposed rule: The proposed section
provided that any person may undertake
a response action to reduce or eliminate
a release of a hazardous substance,
pollutant or contaminant. It also
summarized the various authorities
under CERCLA that are available to
recover the costs of response actions.
Those mechanisms include section
106(b]—wherein any person who has
complied with a section 106(a) order
may petition the Fund for the
reimbursement of reasonable costs, plus
interest.
Response to comments: 1. Petitions for
reimbursement. One commenter noted
an error in the rule language in
5 300.700(e). The preamble and the rule
language have conflicting dates. The
preamble uses an October 17,1986 date,
while the rule language uses an October
10.1986 date. Final $ 300.700(e] has been
revised to read " * * * after October
16,1986 * * * ."
2. Effective date and waiver in section
106fb)(2). One commenter noted that
proposed 5 300.700(e] would provide
that persons who have complied with an
order "issued after October 17.1986"
may petition the Fund for
reimbursement "unless the person has
waived that right." The commenter
stated that neither of the quoted
limitations is in CERCLA, and both are
inappropriate attempts to narrow the
rights of PRPs to claim against the Fund.
The commenter alleged that the
reimbursement provision was effective
as of October 17,1986, and applied to
"any order" issued under section 106(a).
The commenter believed that as long as
the recipient of the order petitions EPA
for reimbursement within 60 days after
completion of the required action,
reimbursement is potentially available
under the law. The commenter
requested that EPA delete the two
phrases quoted above.
EPA interpretation of section 106(b)(2)
is that it applies only to orders issued
after the date of enactment of SARA,
i.e., on or after October 17,1986. That
interpretation has been upheld in court
as a reasonable interpretation. (See
Wagner Seed Co. v. Bush, 709 F.Supp.
249 (D.D.C. 1989].)
Pursuant to section 106(a), the
President may issue orders unilaterally
or on consent. Administrative orders
issued on consent generally contain a
waiver of a respondent's rights pursuant
to section 106(b)(2), therefore the
reference to "unless the person has
waived that right."
Final rule: Proposed § 300.700(e) is
revised to include the date of October
16,1986.
Subpart I—Administrative Record for
Selection of Response Action
Subpart I of the NCP is entirely new.
It implements CERCLA requirements
concerning the establishment of an
administrative record for selection of a
response action. Section 113(k)(l) of
CERCLA requires the establishment of
"an administrative record upon which
the President shall base the selection of
a response action." Thus, today's rule
requires the establishment of an
administrative record that contains
documents that form the basis for the
selection of a CERCLA response action.
In addition, section 113(k)(2) requires
the promulgation of regulations
establishing procedures for the
participation of interested persons in thi
development of the administrative
record.
These regulations regarding the
administrative record include
procedures for public participation.
Because one purpose of the
administrative record is to facilitate
public involvement, procedures for
-------
8800
Federal Register / Vol. 55. No. 46 / Thursday. March 8, 1990 / Rules and Regulations
establishing and maintaining the record
are closely related to the procedures
governing public participation. General
community relations provisions found in
other parts of the proposed NCP are
addressed elsewhere in this preamble.
The following sections discuss the
major comments received on the
proposed subpart I and EPA's responses.
Name: General comments.
Proposed rule: Subpart I details how
the administrative record is assembled,
maintained and made available to the
public.
Response to comments: Comments on
the administrative record regulations
included the suggestion that the
preamble provide a general statement
differentiating between the
administrative record and the
information repository.
EPA agrees that while subpart I
includes ample information on the
requirements of the administrative
record, a brief clarification would help
to differentiate the record from the
information repository.
The information repository includes a
diverse group of documents that relate
to a Superfund site and to the Superfund
program in general, including documents
on site activities, information about the
site location, and background program
and policy guides. EPA requires an
information repository at all remedial
action sites and any site where a
removal action is likely to extend
beyond 120 days. The purpose of the
information repository is to allow open
and convenient public access to
documents explaining the actions taking
place at a site.
The administrative record discussed
in this subpart, by contrast, is the body
of documents that forms the basis of the
agency's selection of a particular
response at a site, i.e., documents
relevant to a response selection that the
lead agency relies on, as well as
relevant comments and information that
the lead agency considers but may reject
in the ultimate response selection
decision. Thus, the record,will include
documents the lead and support agency
generate, PRP and public comments, and
technical and site-specific information.
These documents occasionally overlap
with those included in the information
repository. The administrative record
includes such information as Bite-
specific data and comments, guidance
documents and technical references
used in the selection of the response
action. The information repository may
include guides to the Superfund process,
background information, fact sheets,
press releases, maps, and other
information to aid public understanding
of a site response, regardless of whether
the information has bearing on the
eventual response selection at that site.
One commenter felt that there was no
mechanism for PRPs to participate in the
development of the administrative
record. In response, PRPs are given a
chance to participate in the development
of the administrative record throughout
its compilation. EPA will make available
information considered in selecting the
response action to PRPs and others
through the administrative record file.
Interested persons may peruse the
record file, submit information to be
included in the administrative record
file, or may comment on its contents
during the ensuing public comment
period.
Name: Section 300.800(a).
Establishment of an administrative
record. Section 300.810(a). Contents of
the administrative record.
Proposed rule: Section 113(k)(l) of
CERCLA states that the "President shall
establish an administrative record upon
which the President shall base the
selection of a response action." EPA
used similar language in § 300.800(a) of
the proposed rule: "The lead agency
shall establish an administrative record
that contains the documents that form
the basis for the selection of a response
action." (Emphasis added.) Section
300.810(a) states that the
"administrative record file for selection
of a response action typically, but not in
all cases, will contain the following
types of documents * * *," followed by
an enumeration of those documents.
Response to comments: EPA's choice
of the phrase "form the basis" in
{ 300.600(a) drew many comments. The
comments expressed concern that the
lead agency would have the discretion
to include in the administrative record
only those documents that support
EPA's selected remedy.
These comments appear to be based
on a misunderstanding of what the
phrase "forms the basis of means as it
was used in the proposed rule. The
statute defines the administrative record
as the "record upon which the President
•ball base the selection of a response
action." EPA's intent in defining the
record as the file that "contains the
documents that form the basis for the
•election of a response action" was
•imply to reflect the statutory language.
For example, an administrative record
will contain the public comments
submitted on the proposed action, even
if the lead agency rejects the comments,
because the lead agency it required to
consider these comments and respond to
significant comments in making a final
decision. Thus, these comments also
"form the basis of the final response
•election decision. EPA intends that the
regulatory language defining the
administrative record file embody
general principles of administrative law
concerning what documents are
included in an "administrative record"
for an agency decision. As a result,
contrary to the suggestion of the
commenters, the proposed definition of
the administrative record does not mean
that the record will contain only those
documents supporting the (elected
response action.
A commenter asked that the phrase
"but not in all cases" be deleted from
{ 300.810(a), or specify the cases where
documents are excluded from the
administrative record. EPA believes it is
better not to attempt to list excluded
documents in the NCP since EPA cannot
possibly anticipate all the types of
documents that will be generated for a
site or for future sites, and which of
these documents should be excluded
except as generally described in
{ 300.810(b). It should be noted, for
example, that although a health
assessment done by ATSDR would
normally be included in the
administrative record, it would not be if
the assessment was generated by
ATSDR after the response is selected.
Others commented that certain
documents should always be included in
the administrative record. EPA believes
that only a small group of documents
will always be generated for every type
of CERCLA site, since each site is
unique. Other documents may or may
not be generated or relevant to the
selection of a particular response action
at a site. EPA understands that a
definitive list of required documents
would assist parties in trying to assess
the completeness of the administrative
record, but such a list would not be
practical. Different sites require
different documents.
A related group of comments asked
that the administrative record always
include certain documents, including,
specifically, "verified sampling data,"
draft and "prededsional" documents,
and technical studies. One comment
stated that "invalidated" sampling data
and drafts must be part of the
administrative record in some
situations. Verified sampling data, i.e..
data that have gone through the quality
assurance and quality control process,
will be included in the record when they
have been used in the selection of a
response action. "Invalidated" data. Le.,
data which have been found to be
incorrectly gathered, are not used by
EPA in selecting the response action and
should therefore not be included in the
-------
Federal Register / Vol. 55, No. 46 / Thursday. March 8. 1990 / Rules and Regulations
8801
record. These should be distinguished
from unvalidated data—data that have
not been through the quality control
process—which may in limited
circumstances be considered by the
agency in selecting the response action.
It is EPA's policy to avoid using
unvalidated data whenever possible.
Nonetheless, there are times when the
need for action and the lack of validated
data requires the consideration of such
data in selecting an emergency removal
action. If such data are used, they will
be included in the record.
In genera], only final documents are
included in the administrative record
files. Draft documents are not part of the
record for a decision because they
generally are revised or superseded by
subsequent drafts and thus are not the
actual documents upon which the
decision-maker relies. However, drafts
(or portions of them] generally will be
included in the administrative record for
response selection if there is no final
document generated at the time the
response is selected and the draft is the
document relied on. In addition, a draft
which has been released to the public
for the purpose of receiving comments is
also part of the record, along with any
comments received.
Similarly, predecisional and
deliberative documents, such as staff
notes or staff policy recommendations
or options papers, do not generally
belong in the administrative record
because they merely reflect internal
deliberations rather than final decisions
or factual information upon which the
response selection is based. However,
pertinent factual information or
documents stating final decisions on
response selection issues for a site
generally would be included in the
record.
Technical studies are also part of the
record, again, if considered by the lead
agency in selecting the response action.
The commenter seems to have
misinterpreted EPA's intent by assuming
that only factual portions of a technical
study are part of the record. The entire
study, or relevant part of the study.
should be part of the record.
Another comment stated that the
administrative record should include
any studies on cost, cost-effectiveness,
permanence, and treatment that underlie
the record of decision. These studies are
already part of the remedial
investigation and feasibility study,
which is always included in the record.
Another party stated that sampling
protocols should be in the
administrative record. Sampling
protocols are part of the RI/FS work
plan, which is also part of the
administrative record. And because
sampling protocols, like chain of custody
documents, are generally grouped
together, EPA has provided in this
rulemaking that such grouped or serial
documents may be listed as a group in
the index to the administrative record
file.
A related comment requested that all
documents generated by contractors
should be included in the record. In
response, any document that forms the
basis of a response selection decision
will be included in the administrative
record. It is immaterial who develops
the document—it can be a contractor,
the public (including a PRP), a state or
EPA.
One commenter asked that ARAR
disputes involving a disagreement over
whether a requirement is substantive or
administrative be documented in the
record. Other comments stated that EPA
must ensure that complete ARAR
documentation and documentation of all
remedial options, not just the selected
remedy, be placed in the record. Where
ARAR issues are relevant to response
selection, lead and support agency-
generated documents and public
information submitted to the lead
agency on this issue would be part of
the record. The record will include
documentation of each alternative
remedy and ARAR studied during the
RI/FS process, and the criteria used to
select the preferred remedy during the
remedy selection process.
EPA also received several comments
stating that every document contributing
to decision-making should be part of the
administrative record. EPA cannot
concur in this formulation of the
administrative record since it is unclear
what "contributing to" means and that
phrase may be overly broad. For
instance, the term "contributing to"
could be interpreted to include all draft
documents leading up to a final product.
These draft documents do not generally
form the basis of the response selection.
However, because the administrative
record includes documents which form
the basis for the decision to select the
response action, EPA believes that most
"contributing" documents will be
included.
One comment stated that the hazard
ranking system (HRS) information
should be included in the administrative
record for selection of the response
action. Specifically, they suggested that
internal memoranda, daily notes, and
the original HRS score should be made
available. The National Priorities List
(NPL) docket is a public docket, and
already contains the relevant ranking
information. The information generally
relevant to the listing of a site on the
NPL is preliminary and not necessarily
relevant to the selection of the response
action. If, however, there is information
in the NPL docket that is relied on in
selecting the response action, it will be
included in the administrative record.
Another commenter stated that all
materials developed and received during
the remedy selection process should be
made a part of the record, and stated
that the NCP currently omits inclusion of
transcripts. As noted above, certain
documents simply will not be relevant to
the selection of response actions. EPA
will, as required by the statute, include
in the record all those materials,
including transcripts, that form the basis
for the selection of a response action,
whether or not the materials support the
decision.
Several commenters asked that the
lead agency be required to mail them
individual copies of documents kept in
the administrative record. These
requests included copies of sampling
data, a copy of any preliminary
assessment petitions, potential
remedies, the risk assessment, a list of
ARARs, and notification of all future
work to be done. Commenters also
asked to be notified by mail when a lead
agency begins sampling at a site and
when a contractor is chosen for a
response action. In addition, many
asked for the opportunity to comment on
the documents mentioned above. A
related comment suggested that EPA
maintain a mailing list for each site and
mail copies of key documents in the
record to every party on the list.
EPA believes that maintaining an
administrative record file in two places,
in addition to a more general
information repository, with provisions
for copying facilities reflects EPA's
strong commitment to keeping the
affected public, including PRPs,
informed and providing the opportunity
for public involvement in response
decision-making. Requiring EPA to mail
individual copies of documents
available in the record file is beyond
any statutory requirements, unnecessary
due to the ready availability of the
documents in the file, and a severe
burden on Agency staff end resources.
Most of the documents requested above
will generally be available in the
administrative record for public review
and copying. Additionally, the lead
agency should maintain a mailing list of
interested persons to whom key site
information and notice of site activities
can be mailed as part of their
community relations plan for a site.
One commenter asked that all PRP
comments and comments by other
interested parties be included in the
record, regardless of their
-------
8802
Federal Register / Vol. 55. No. 46 / Thursday, March 8. 1990 / Rules and Regulations
"significance." EPA will include all
comments received during the comment
period in the administrative record.
regardless of their significance. When
the lead agency considers comments
submitted after the decision document
has been signed, the "significance" of a
comment has a bearing on whether it
will be included in the administrative
record, as specified in S 300.825(c). In
addition, while EPA is under no legal
obligation to place in the record or
consider comments submitted prior to
the comment period, EPA will generally,
as a matter of policy, consider
significant comments submitted prior to
the comment period, place them into the
record, and respond to them at an
appropriate time. However, persons who
wish to ensure that the comments they
submitted prior to the comment period
are included in the record must resubmit
such comments during the comment
period.
Final rule: Section 300.800(a) is
promulgated as proposed.
Name: Section 300.800(b).
Administrative record for federal
facilities.
Proposed rule: Section 300.800(b)
states that the lead agency for a federal
facility, whether EPA, the U.S. Coast
Guard, or any other federal agency,
shall compile and maintain an
administrative record for that facility.
When federal agencies other than EPA
are the lead at a federal facility site,
they must furnish EPA with copies of the
record index, in addition to other
specified documents included in the
record. The preamble to the proposed
NCP discussion of § 300.800(b) (53 FR
51464) states that EPA will establish
procedures for interested parties to
participate in the administrative record
development, and that EPA may furnish
documents which the federal agency is
required to place in the record.
Response to comments: One comment
stated that EPA should be the custodian
for administrative records for federal
facilities, especially where the federal
facility is a PRP, to avoid any conflict of
interest in questions of liability or
litigation. Another comment stated that
the requirements in { 300.800[b) of the
proposed rule would be burdensome to
federal agencies in compiling and
maintaining the record.
Executive Order 12580 grants federal
agencies the authority to "establish the
administrative record for selection of
response actions for federal facilities
under their jurisdiction, custody or
control." To avoid the potential for
conflicts of interest by federal agencies
who are PRPs and in charge of compiling
and maintaining the record. EPA retains
control over the development of the
record by specifying what goes into the
record, by supplementing the record and
by requiring an accounting of what is in
the record through a report of the
indexed contents. EPA believes that
these requirements represent sufficient
Agency oversight to avoid potential
conflicts of interest at federal faculties
while ensuring that federal lead
agencies remain responsible for
compiling and maintaining their own
administrative record.
EPA is making a minor editorial
change in § 300.600(b)(l) to reflect that
the federal agency compiles and
maintains an administrative record for a
facility, and not at a facility, since
5 300.800(a) already provides that the
record will be located at or near that
facility.
Final rule: EPA is promulgating the
rule as proposed, except for the
following minor editorial change in the
first sentence of § 300.800{b)(l): "If a
federal agency other than EPA is the
lead agency for a federal facility, the
federal agency shall compile and
maintain the administrative record for
the selection of the response action for
that facility in accordance with this
subpart."
Name: Section 300.800(c).
Administrative record for state-lead
sites.
Proposed rule: Section 113(k] of
CERCLA states that the President "shall
establish an administrative record upon
which the President shall base the
selection of a response action." Section
300.800(c), entitled "Administrative
record for state-lead sites," requires that
states compile administrative records
for state-lead sites in accordance with
the NCP.
Response to comments: Several
commenters believe that the new
administrative record procedures place
an onerous burden on the state, and
request that state requirements such as
Open Records Acts should be allowed
as a substitute for compliance with
subpart I. Another commenter
recommended that states be allowed to
determine whether a complete
administrative record is needed at or
near the site when a site is state-lead.
Where a response is taken under
CERCLA at a state-lead site, EPA is
ultimately responsible for the selection
of a response action. Therefore, under
section 113(k), EPA must establish an
administrative record for the CERCLA
response action at the site, and must, at
a Ttiinimnm, comply with subpart I.
There may be many different ways of
compiling administrative records and
involving the public in the development
of the record. Subpart I states the
minimum requirements for section
113(k). Lead agencies, including states,
may provide additional public
involvement opportunities at a site. In
response to whether or not states should
maintain a complete administrative
record at or near the site, EPA believes
that states must have such a record in
order to meet CERCLA section 113(k)
requirements.
EPA has included a minor editorial
change in § 300.800(c) to reflect that a
state compiles and maintains an
administrative record for rather than at
a given site.
Final rule: EPA is promulgating
S 300.800(c) as proposed, except for a
minor editorial change in the first
sentence as follows: "If a state is the
lead agency for a site, the state shall
compile and maintain the administrative
record for the selection of the response
action for that site in accordance with
this subpart."
Name: Sections 300.800(d) and
300.BOO(e). Applicability.
Proposed rule: Section 300.800(d)
states that the provisions of subpart I
apply to all remedial actions where the
remedial investigation began after the
promulgation of these rules, and for all
removals where the action
memorandum is signed after the
promulgation of these rules. Section
300.800{d] also proposes that "[T]his
subpart applies to all response actions
taken under section 104 of CERCLA or
sought, secured, or ordered
administratively or judicially under
section 106 of CERCLA." Section
300.800(e) states that the lead agency
will apply subpart I to all response
actions not included in { 300.600(d) "to
the extent practicable."
Response to comments: One
commenter argued that the applicable
provisions of subpart I should be
amended to require agencies to comply
with the subpart for all sites where the
remedy selection decision was made
more than 90 days after proposal of the
revised NCP for comment. Another
comment stated that § 300.800(e) be
revised to state that lead agencies must
comply with subpart I in any future
actions they take, and that all lead
agency actions must comply with
subpart I "to the maximum extent
practicable."
In response, EPA will adhere as
closely as possible to subpart I for sites
where the remedial investigation began
before these regulations are
promulgated. EPA will not however.
require that these sites comply with
requirements which, because of the
-------
Federal Register / Vol. 55, No. 46 / Thursday. March 8. 1990 / Rules and Regulations 8803
timing of the response action relative to
the promulgation of these rules, cannot
be adhered to. For example, under the
final rule the administrative record file
must be available at the beginning of the
remedial investigation phase. If these
regulations are promulgated when a site
is in the middle of the remedial
investigation process, and the
administrative record is not yet
available, the lead agency cannot at this
point comply with these regulations.
Additionally, EPA believes that adding
language to proposed NCP § 300.800(e)
to state that lead agencies will comply
with provisions of subpart I in any
future action after promulgation of the
new rule is unnecessary and redundant;
compliance will be legally required, and
applicability to all future response
actions is implicit in the rule. Likewise,
insertion of the word "maximum" before
the phrase "extent practicable" is
unnecessary since it would give
additional emphasis but would not
Bubstantively change the requirement or
the meaning of the rule.
One comment agreed withEPA's
interpretation that subpart I applies to
all response actions "sought, secured or
ordered administratively or judicially,"
but others disagreed. Several stated that
the term "judicially" should be deleted
from § 300.800(dJ because they argue
that response actions ordered judicially
would receive de novo adjudication,
instead of administrative record review.
CERCLA section 113(j)(l) states: "In any
judicial action under this Act, judicial
review of any issues concerning the
adequacy of any response action taken
or ordered by the President shall be
limited to the administrative record."
Commenters contend that this section
does not apply to injunctive actions
under CERCLA section 106 because
these are not actions "taken or ordered
by the President." To the contrary, the
•election of a response action is a
"response action taken * * * by the
President." Accordingly, section 113(j)(l)
requires that judicial review of the
response action selected by the agency
is "limited to the administrative record."
Further, section 113(j)(2) stipulates that,
"in any judicial action under this
chapter"—whether for injunctive relief,
enforcement of an administrative order
or recovery of response costs or
damages—a party objecting to "the
President's decision in selecting the
response action" must demonstrate, "on
the administrative record, that the
decision was arbitrary or capricious or
otherwise not in accordance with law."
EPA received several comments
objecting to EPA's determination that
judicial review of an endangerment
assessment be limited to the
administrative record. They stated that
as a matter of administrative and
constitutional law, a finding of imminent
and substantial endangerment is not an
issue concerning "the adequacy of the
response action," as stated in CERCLA
section 1130), and therefore must
receive de novo review by a court. A
second comment requested that EPA
state in the regulation that review of
EPA's expenditures in the
implementation of a remedy is de novo.
An assessment of endangerment at a
site la a factor highly relevant to the
selection of a response action, and is in
fact part of the remedial investigation
(RI) process central to the decision to
select a response action. Therefore, the
determination of endangerment (which
will generally be included in the
decision document) will be included in
the administrative record for selection
of a response action and should be
reviewed as part of that record. (EPA
notes that the term "endangerment
assessment" document has been
superseded by the term "risk
assessment" document, and while
assessments of endangerment at a site
are still conducted during the RI, it is the
"risk assessment" document that
becomes part of the record.) In response
to the comment that Agency
expenditures on a response action
should receive de novo review, EPA
notes that this issue was not raised in
the proposed NCP, and is therefore not
addressed in the final rule.
Final rule: EPA is promulgating the
rule as proposed.
Name: Section 300.805. Location of the
administrative record file.
Proposed rule: Section 113(k)(l) of
CERCLA states that "the administrative
record shall be available to the public at
or near the facility at issue. The
President also may place duplicates of
the administrative record at any other
location." Section 300.805 of the
proposed NCP provides five exemptions
for information which need not be
placed at or near the facility at issue:
Sampling and testing data, guidance
documents, publicly available technical
literature, documents in the confidential
portion of the file, and emergency
removal actions lasting less than 30
days.
Response to comments: One
commenter supported limiting the
amount of information which must be
located at or near the site, but many
commenters stated that every document
contributing to decision-making,
including confidential documents which
are part of the record, should be located
at or near the site and agency
convenience is not a sufficient reason to
exclude documents from the site. They
asserted that such exclusions undermine
active public involvement at the site and
are contrary to statutory intent. Another
comment stated that requiring the
administrative record to be kept in two
places, at a central location and at or
near the site, runs counter to the
statutory requirement of keeping a
record only "at or near the facility at
issue." One commenter asked that EPA
acknowledge that Indian tribal
headquarters may be a logical place to
keep the administrative record when a
Superfund site is located on or near an
Indian reservation. A final comment
requested that EPA endorse through
regulatory language that administrative
records can be kept on microfiche or
other record management technologies,
and have the equivalent legal validity to
paper records.
Requiring sampling data and guidance
documents to be placed at the site is
both unnecessary and, in many cases,
very costly. Administrative records are
often kept at public libraries where
space is limited and cannot
accommodate voluminous sampling data
for large, complex sites. Summaries of
the data are included in the RI/FS,
which is located at or near the site. In
addition, requiring publicly available
technical literature at the site will
require copying copyrighted material, an
additional expenditure of limited
Superfund dollars. Moreover, Agency
experience is that, as yet, relatively few
people view the administrative record
file at or near the site or request review
of the sampling data or general guidance
documents listed in the index to the site
file.
However, EPA has revised the rule to
specify that, if an individual wishes to
review a document listed in the index
but not available in the file located at or
near the site, such document, if not
confidential, will be provided for
inclusion in the file upon request. The
individual will not need to submit a
Freedom of Information Act Request in
order to have the information made
available for review in the file near the
site. EPA believes that provision of such
documents in the file near the site upon
request meets the requirement of
CERCLA section 113(k) that the record
be "available" at or near the site. In
addition, this rule does not bar lead
agencies from deciding to place this
information in the site file without
waiting for a request Lead agencies are
encouraged to place as much of this
information at or near the site as
practical and to automatically place
information at sites where there is a
-------
880A
Federal Register / Vol. 55. No. 46 / Thursday, March 8. 1990 / Rules and Regulations
high probability that the information
will be in demand or the information is
central to the response selection
decision.
The confidential portion of the Hie
need not be located at or near the site,
and will not be available upon request
either at the site or at the central
location, since the information is not
available for public review.
EPA believes that requiring that the
record be located in two places is
necessary to ensure both adequate
public access to the record files and
better lead-agency control over the
record documents. The statutory
requirement in CERCLA section
113(k)(l) states that the President may
also place duplicates of the
administrative record at any other
location. This section clearly provides
authority to maintain a second
administrative record at a central
location. Section 300.805 of the proposed
NCP (53 FR 51515) reflects EPA's
decision to make this statutory option a
regulatory requirement. A centrally
located record may offer easier access
to interested parties located far from the
response site.
EPA agrees with the commenter that
housing the centrally located copy of the
record at Indian tribal headquarters may
be appropriate when a Superfund site is
located at or near an Indian reservation.
In the 1986 amendments to CERCLA,
Indian tribes are accorded status
equivalent to states, and can be
designated lead agencies for response
actions, in which case they would also
be required to compile and maintain the
administrative record at or near the site.
Finally, as EPA stated in the preamble
to the proposed NCP, maintaining the
administrative record on microfiche is
already recognized as a legally valid
and effective practice: "EPA may make
the administrative record available to
the public in microform. EPA may
microform-copy documents that form the
basis for the selection of a CERCLA
response action in the regular course of
business" (53 FR 51465). EPA agrees that
this should be specified in the rule and
has added § 300.805(c) accordingly,
providing that the lead agency may
make the record available in microform.
Final rule: Section 300.805 is modified
as follows:
1. Section 300.805(b) is added to the
rule as follows: "Where documents are
placed in the central location but not in
the file located at or near the site, such
documents shall be added to the file
located at or near the site upon request,
except for documents included hi
paragraph (a)(4) of this section."
2. Section 300.805(c) is added to the
rule as follows: "The lead agency may
make the administrative record file
available to the public in microform."
3. The section has been renumbered
accordingly.
Name: Sections 300.810(a)-{d).
Documents not included in the
administrative record file.
Proposed rule: Section 300.810(b)
discusses which documents may be
excluded from the administrative record.
Section (c) discusses privileged
information that is not included in the
administrative record. Section 300.810(d)
discusses confidential information that
is placed in the confidential portion of
the administrative record.
Response to comments: One
commenter argued that § 300.810 should
specifically include an exemption for
classified documents related to national
security. While the NCP currently does
not address the potential conflict
between national security concerns and
the requirement to establish a publicly
accessible administrative record, it is
not clear that such an exemption could
be adequately specified by rule or that
an exemption would appropriately
resolve this conflict. Section 1210)
provides a national security waiver by
Presidential order of any requirements
under CERCLA, which can be invoked
in certain circumstances. Under this
provision, protection of national security
interests requires case-by-case review
under section 121(j) and not a blanket
exemption in the NCP. Nothing in the
,NCP limits the availability of this
waiver.
Another comment received by EPA
stated that the treatment of privileged
and confidential documents in the
records is unfair, because it denies
access to documents that may be critical
to the selection of a remedy. EPA has
provided for a confidential portion of
the administrative record where
documents containing, for example,
trade secrets of companies that have
developed patented cleanup
technologies being considered as a
response selection alternative can be
kept confidential. To maintain a fair
balance between the need for
confidentiality and the public's right of
review of the record, the lead agency
must summarize or redact a document
containing confidential information to
make available to the greatest extent
possible critical, factual information
relevant to the selection of a response
action in the nonconfidential portion of
the record.
A final comment proposed that an
index to the privileged documents
should be included in the
nonconfidential portion of the
administrative record. EPA agrees,
believing that an index will let
interested parties know in general terms
what documents are included in the
record without compromising the
confidential nature of the information
contained in those documents.
Finally, EPA is adding a sentence to
{ 300.810(a)(6) to clarify that the index
can include a reference to a group of
documents, if documents are
customarily grouped. This will simplify
EPA's task without compromising the
integrity of the record.
Final rule: 1. EPA is promulgating
§ § 300.810(b), (c] and (d) as proposed
with a minor editorial change to clarify
the first sentence of § 300.810(d).
2. The following language is added to
{ 300.810(a)(6) to provide for listing
grouped documents in the
administrative record file index: "If
documents are customarily grouped
together, as with sampling data chain of
custody documents, they may be listed
as a group in the index to the
administrative record file."
Name: Section 300.815. Administrative
record file for a remedial action.
Proposed rule: The term
"administrative record file" is used
throughout the proposed NCP. Section
300.815(a) proposes that the
administrative record file be made
available for public inspection at the
beginning of the remedial investigation
phase.
Response to comments: EPA received
several comments objecting to the
concept of an administrative record file.
They objected because there is no
statutory authority for establishing a
file, and because they were concerned
that the lead agency could edit the file.
specifically by deleting public and PRP
comments and information that do not
support the response action ultimately
chosen by EPA, and that these
comments and information would not
remain a part of the final administrative
record.
The statute requires the President to
establish an administrative record.
Under subpart I of the NCP, the
administrative record file is •the
mechanism for compiling, and will
contain, the administrative record
required by section 113(k). One reason
EPA adopted the concept of an
administrative record file is that EPA
felt that it may be confusing or
misleading to refer to an ongoing
compilation of documents as an
"administrative record" until the
compilation is complete. Until the
response action has been selected, there
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8805
is no complete administrative record for
that decision. Thus, to avoid creating the
impression that the record is complete at
any time prior to the final selection
decision, the set of documents is
referred to as the administrative record
file rather than the administrative
record.
However, this does not mean, as the
comments appear to suggest, that the
lead agency may "edit" the
administrative record file in a manner
that removes comments and technical
data simply because they are not
supportive of the final selection
decision. Any comments and technical
information placed in the record file for
a proposed response action and relevant
to the selection of that response action.
whether in support of. or in opposition
to, the selected response action, become
part of the administrative record for the
final response selection decision. Such
materials will remain in the
administrative record file, and will
become part of the final administrative
record. However, EPA believes that as a
matter of law documents that are
erroneously placed in the administrative
record file (e.g., documents that have no
relevance to the response selection or
that pertain to an entirely different site)
would not necessarily become part of
the final administrative record.
EPA received additional comments
stating that the administrative record
file should be available before the
beginning of the remedial investigation
phase. These comments suggested that
the file be available: When a site is
entered into the CERCUS data base;
when the HRS score is calculated; when
proposed for inclusion on the NPL; after
the preliminary assessment report; and
after the remedial site investigation.
EPA believes that the point at which a
site is entered into the CERCUS data
base is too early to put any information
which would be relevant to a selection
of a response action into a record file
because at this point there has been no
site evaluation and therefore little
factual information about the site upon
which to base a response decision.
Interested parties can already find any
information on a site that would be
included at the point of the HRS scoring
and placement on the NPL in the NPL
docket, which is publicly available. The
preliminary assessment and remedial
investigation stages of a response are
premature for making the administrative
record available; at these points there is
little information relevant to response
selection on which to comment or to
review. Once the RI/FS work plan is
approved, and the RI/FS study begins—
including such activities as project
scoping, data collection, risk assessment
and analysis of alternatives—there is a
coherent body of site-specific
information with relevance to the
response selection upon which to
comment. EPA believes that the
beginning of the RI/FS phase is the point
in the process when it makes sense to
start a publicly available record of
information relevant to the response
selection.
One comment suggested that
interested persons would have no
chance to comment on the formation of
the RI/FS work plan. The comment
suggested that the record file should be
available before the RI/FS work plan is
approved, e.g., with a draft work plan or
statement of work. EPA disagrees.
Approved work plans are often
amended. An interested person may
comment on the scope or formation of
the work plan, and such comments can
be taken into account by the lead
agency and incorporated into a final or
amended work plan. Such comments
must be considered if submitted during
the comment period on the proposed
action.
Final rule: EPA is promulgating
§ 300.815(a) as proposed.
Name: Section 300.815. Administrative
record file for a remedial action. Section
300.820(a). Administrative record file for
a removal action.
Proposed rule: Subpart I requires that
the administrative record for a remedial
action be available 'for public review
when the remedial investigation begins.
Thereafter, relevant documents are
placed in the record as generated or
received. The proposed regulations also
require that the lead agency publish a
newspaper notice announcing the
availability of the record files, and a
second notice announcing that the
proposed plan has been issued. A public
comment period of at least 30 days is
required on the proposed plan. Section
300.820(a) outlines the steps for the
availability of the record and public
comment for a non-time-critical removal
action. EPA solicited comments on a
proposal currently under consideration
to require quarterly or semi-annual
notification of record availability and
the initiation of public comment in the
Federal Register.
Response to comments: Some
commenters suggested that the use of
the Federal Register to announce the
availability of the administrative record
is too costly or of little or no benefit.
Several commenters requested
clarification on how and when the lead
agency should respond to comments.
Another stated that lead agencies
should be encouraged—though not
required—to respond to early comments
before the formal comment period
begins.
EPA chose not to require a notice of
availability of the administrative record
in the Federal Register in this
rulemaking because it is still unclear
whether the benefits of this additional
notice outweigh its costs. EPA may
decide in the future to require this
additional notice if it determines that
such notice would improve notification.
EPA agrees with commenters that
clarification is needed as to when the
lead agency should respond to
comments. We also agree that the lead
agency should be encouraged to respond
to comments submitted before the public
comment period. EPA generally will
consider any timely comments
containing significant information, even
if they are not received during, the
formal comment period, and encourages
other lead agencies to do so. EPA will
strive to respond to comments it
receives as early as possible, and to
encourage other lead agencies to follow
suit. However, any lead agency is
required to consider and respond to only
those comments submitted during a
formal comment period. Any other
comments are considered at the lead
agency's discretion. EPA has revised the
language of these sections to reflect the
policy on consideration of public
comments submitted prior to public
comment periods.
One comment recommended that the
regulations should provide how long the
administrative record must be available,
and suggested EPA coordinate efforts
with the National Archives about
retaining the record as a historical
record. Another felt that materials were
not always placed into the record in a
timely manner, and that the record was
not always available to the working
public during evenings and weekends or
accompanied by a copying machine.
Similarly, one commenter felt that
documents should be placed in the
record when they are generated or in a
prescribed timeframe of two weeks.
Another asked that free copies of key
documents be included in die record.
EPA believes that the length of time a
record must be available at or near the
site will be dependent on site-specific
considerations such as ongoing activity,
pending litigation and community
interest. EPA also believes that
difficulties sometimes encountered by
the working public require resolution on
a site-by-site basis and do not merit a
change in the proposed NCP language.
Special provisions may have to be made
by the records coordinator, with the aid
of other site team members, including
-------
8806
Federal Register / Vol. 55, No. 46 / Thursday. March 8. 1990 / Rules and Regulations
the community relations coordinator or
regional site manager, to ensure that the
record location chosen is convenient to
the public and that copying facilities are
made available. Using public libraries to
bouse the record should promote better
availability of the record during non-
working hours and on weekends. In
response to mandating deadlines for
lead agencies to place documents into
the administrative record file, Agency
guidance already directs record
compilers to place documents into the
record file as soon as they are received.
Agency policy additionally prescribes a
suggested timeframe for placing
documents in the record file. EPA
believes that mandatory deadlines in
the NCP would do little to increase the
rate at which records are already
compiled. The decision to place free
copies of key documents in the record at
or near the site will be a site-specific
decision based on the level of
community interest in these documents.
Those who wish to make copies of key
documents or any document contained
in the administrative record file should
already have access to copying
facilities.
EPA received a comment requesting
that it publish a joint notice of
availability of the administrative record
with a notice of availability of Technical
Assistance Grants. Another comment
stated that the removal site evaluation
and engineering evaluation/cost
analysis (EE/CA) must be included in
the record for a non-time-critical
removal action.
Publishing notice of the availability of
the record in tandem with
announcements of the availability of
Technical Assistance Grants (TAGs) is
a good idea where TAGs are available
for a removal action. The TAGs,
however, are generally designed to
support citizen involvement in technical
issues for sites undergoing remedial
actions. The one-year, $2 million
limitations on removals and the limited
number of alternatives usually reviewed
make further expense on a technical
advisor less beneficial than it might be
for a long-term remedial action. As for
placing the removal site evaluation and
EE/CA in the administrative record,
EPA agrees that generally such
documents would be part of the
administrative record for the removal
action.
Finally, EPA is making a minor change
to the language of 5 300.820{a}(4). EPA is
substituting the term "decision
document" in place of action
memorandum to allow for situations
where the agency's decision document
for a removal action is not named an
action memorandum.
Final rule: 1. The second sentences of
5 J 300.815(b), 300.820(a)(2) and
300.820{b)(2) are revised to reflect the
new language on responding to
comments as follows: "The lead agency
is encouraged to consider and respond,
as appropriate, to significant comments
that were submitted prior to the public
comment period."
2. In § 300.820(a)(4], the term "decision
document" is substituted for "action
memorandum."
3. The remainder of { 300.820(a) is
promulgated as proposed.
Name: Section 300.820(b).
Administrative record file for a removal
action—time-critical and emergency.
Proposed rule: Section 300.820(b)
outlines steps for public participation
and administrative record availability
for time-critical and emergency removal
responses (53 FR 51516): "Documents
included in the administrative record
file shall be made available for public
inspection no later than 60 days after
initiation of on-site removal activity," at
which point notification of the
availability of the record must be
published. The lead agency then, as
appropriate, will provide a public
comment period of not less than 30 days
on the selection of the response action.
Response to comments: Several
comments suggested that public
comment requirements under
§ 300.820(b) were unnecessary and
burdensome, especially the requirement
to publish a notice of the availability of
the record. One comment argued that
requiring public notification of both
record availability and of a site's
inclusion on the NPL was unnecessary
and duplicative. Another comment
stated that the requirements for public
notification and public comment are not
appropriate for all time-critical removal
actions, and recommended that the
administrative record be available for
review only for those time-critical
removal actions that do require public
notice and comment. A related comment
stated that the requirement to publish a
notice of availability of the
administrative record for all time-critical
removal actions be eliminated in favor
of making the record available but not
requiring an advertisement or comment
period, since some time-critical removal
actions are completed before a public
comment period could be held. Others
asked that the public comment period
become mandatory, or at least
mandatory for removal activities not
already completed at the time the record
is made available. Another comment
requested that the record become
available sooner—at least 30 days after
initiation of on-site removal activity—
because the current 60-day period
prevented the consideration of any pre-
work comments. A second comment
supported the 60-day period. Finally, a
commenter argued that it made little
sense to make the record available after
60 days for an emergency response
because the on-scene coordinator (OSC)
report containing most of the response
information isn't required to be
completed until one year following the
response action.
In general, the public participation
requirements under \ 300.820(b) are
designed to preserve both the flexibility
and discretion required by the lead
agency in time-critical removal action
situations as well as EPA's commitment
to encouraging public participation and
to keeping an affected community well-
informed. EPA believes the notification
and comment periods required in
§ 300.820(b) provide for both Agency
flexibility and meaningful public
involvement. The regulatory language
stating that "The lead agency shall, as
appropriate, provide a public comment
period of not less than 30 days"
provides the lead agency needed
flexibility when the emergency nature of
circumstances makes holding a
comment period infeasible.
While EPA believes that it is
necessary to announce the availability
of the administrative record for time-
critical and emergency removal actions
as well as non-time-critical actions, EPA
believes that requiring establishment of
the administrative record and publishing
a notice of its availability 30 days after
initiating a removal action in all cases,
instead of "no later than 60 days after
initiating a removal action," as
proposed, would be somewhat
premature. It has been EPA's experience
that it often takes 60 days to stabilize a
site (i.e., those activities that help to
reduce, retard or prevent the spread of a
hazardous substance release and help to
eliminate an immediate threat). EPA
believes that the overriding task of
emergency response teams during this
critical period must be the undertaking
of necessary stabilization, rather than
administrative duties. Compiling and
advertising the record before a site has
become stabilized would divert
emergency response teams from
devoting their full attention to a
response. EPA believes that such
administrative procedures are better left
for after site stabilization.
Public notice requirements for
announcing the availability of the
administrative record and for a site's
inclusion on the NPL are not duplicative,
-------
Federal Register / Vol. 55, No. 46 / Thursday. March 8, 1990 / Rules and Regulations
8807
but notify the public of two very
different decisions. Removal actions do
not always take place at sites on the
NPL, therefore, the notice requirements
are obviously not duplicative for these
removal actions. For remedial sites that
are on the NPL, the administrative
record need not be established for some
time after listing on the NPL, so
publishing a notice of the availability of
the record would be essential to make
the affected public cognizant of site
progress and their opportunity for
review of document included in the
record.
Lastly, the procedures specified in
§ 300.820(b) are applicable to an
emergency removal that starts and
finishes within 60 days. However, as
provided in § 300.820(b)(2), a comment
period is held only where the lead
agency deems it appropriate. But
because the administrative record is an
avenue for public information as well as
for public comment, EPA also believes
that even if the action is completed
before the record file is made available,
it is still appropriate to make the record
available to the public. There is also no
inherent contradiction in the OSC report
being available one year after
completion of the response action while
the administrative record becomes
available 60 days after initiation of on-
site activities. Since the OSC report is a
summary of the site events and is not a
document which is considered in the
selection of response action, it is not
generally included in the administrative
record.
Final rule: EPA is promulgating
S 300.820(b) as proposed, except that:
1. The second sentence of
5 300.820(b)(2) is revised on responding
to public comments as described above.
2. Section 300.820(b)(3) is revised
consistent with § 300.820(a)(4); the term
"action memorandum" is changed to
"decision document."
Name: Section 300.825. Record
requirements after decision document is
signed.
Proposed rule: Section 300.825
describes situations where documents
may be added to the administrative
record after the decision document is
signed. Documents may be added to a
record in the following circumstances:
When the document addresses a portion
of the decision which the decision
document does not address or reserves
for later when the response action
changes and an explanation of
significant differences or an amended
decision document is issued; when the
agency holds additional public comment
periods after the decision is signed; and
when the agency receives comments
containing "significant information not
contained elsewhere in the record which
could not have been submitted during
the public comment period which
substantially support the need to
significantly alter the response action"
(53 FR 51516). In addition, subpart E of
the proposed NCP discusses ROD
amendments and Explanations of
Significant Differences. Explanations of
Significant Differences may be used for
significant changes which do not
fundamentally change the remedy, and
do not require public comment. ROD
amendments must be used for
fundamental changes, and require a
public comment period.
Response to comments: One
commenter asked that subpart I reflect
the factors consistently applied by
courts when determining whether the
record should be supplemented,
including such criteria as Agency
reliance on factors not included in the
record, an incomplete record, and strong
evidence that EPA engaged in improper
behavior or acted in bad faith. A related
comment stated that since general
principles of administrative law apply to
administrative record restrictions and
supplementing the record, language
limiting supplementing the record should
be deleted from the NCP. EPA believes
that including specific tenets of
administrative law governing
supplementing of the record in the NCP
itself is unnecessary. These tenets apply
to record review of.response actions
whether or not they are included in the
NCP. The requirements of § 300.825(c)
do not supplant principles on
supplementing administrative records.
Another comment recommended that
EPA permit the record to be
supplemented with any issue contested
by a PRP, while granting an objective
third party the ability to accept or reject
record supplements. EPA already
requires- that any documents concerning
remedy selection submitted by PRPs
within the public comment period be
included in the record. All significant
evidence submitted after the decision
document is complete is already
included in the record, so long as it
meets the requirements of S 300.825(c),
is not included elsewhere in the record,
could not have been submitted during
the public comment period, and supports
the need to significantly alter the
response action. EPA believes these
criteria are reasonable and do not
require the use of a third-party
arbitrator.
One comment stated that all PRP
submissions must be placed in the
record in order to protect a party's due-
process right to be heard. EPA disagrees
that all PRP submissions to the lead
agency must be placed in the record in
order to protect the party's due process
rights. The process provided in the
rules—including the notice of
availability of the proposed plan and the
administrative record for review, the
availability of all documents underlying
the response selection decision for
review throughout the decision-making
process, the opportunity to comment on
the proposed plan and all documents in
the administrative record file, the
requirement that the lead agency
consider and respond to all significant
PRP comments raised during the
comment period, the notice of significant
changes to the response selection, and
the opportunity to submit, and
requirement that the lead agency
consider, any new significant
information that may substantially
support the need to significantly alter
the response selection even after the
selection decision—is sufficient to
satisfy due process. Moreover, the
opportunity provided for PRP and public
involvement in response selection
exceeds the minimum public
participation requirements set forth by
the statute. Placing a reasonable limit on
the length of time in which comments
must be submitted, and providing for
case-by-case acceptance of late
comments through § 300.825(c), does not
infringe upon procedural rights of PRPs.
One commenter asked that the
permissive "may" in 5 300.825(a) be
changed so there is no lead-agency
discretion over whether to add to the
administrative record documents
submitted after the remedy selection,
and stated that additional public
comment periods as outlined in
S 300.825(b) should not be only at EPA's
option. A related comment stated that
the multiple qualifiers in { 300.825(c),
including the phrases "substantially
support the need" and "significantly
alter the response action" (53 FR 51516),
grant EPA overly broad discretionary
powers over what documents may be
added to the record. The commenter
suggests deleting the word
"substantially," as well as stating that
all comments, even those disregarded by
EPA, should be included in the record
for the purpose of judicial review. EPA
disagrees that the word "may" in either
\ 300.825(a) or § 300.825(b) is too
permissive. Section 300.825(b) of the
proposal was simply intended to clarify
the lead agency's implicit authority to
hold additional public comment periods,
in addition to those required under
subpart E for ROD amendments,
whenever the lead agency decides it
would be appropriate. Because these
additional comment periods are not
-------
8808
Federal Register / Vol. 55. No. 46 / Thursday. March 8, 1990 / Rules and Regulations
required by statute or regulation, the
"permissive" language simply reflects
the lead agency's discretion with respect
to thsse additional public involvement
opportunities. Similarly, lead-agency
discretion to add to the administrative
record documents submitted after a
decision document has been signed
provides the lead agency the option to
go beyond the mini^num requirements
for public participation outlined in the
statute. In response to requests to delete
the qualifiers in § 300.825(c), this
language is intentionally designed to
define carefully the circumstances in
which EPA must consider comments
submitted after the response action has
been selected. This standard recognizes
CERCLA's mandate to proceed
expeditiously to implement selected
response actions, but also recognizes
that there will be certain instances in
which significant new information
warrants reconsideration of the selected
response action. Section 300.825(c) is
intended to provide a reasonable limit
on what comments EPA must review or
consider after a decision has been made.
Several commenters requested that
PRPs not identified until after the close
of the public comment period should be
allowed an opportunity to comment on
the record within 60 days of EPA's
notification of potential liability. EPA
makes significant efforts to involve PRPs
as early in the process as possible.
When PRPs are identified late in the
process, they may provide EPA with
comments at that time. EPA will
consider comments which are submitted
after the decision document is signed in
accordance with the criteria of
$ 300.825(c). This is true no matter when
the PRP is identified in the process. EPA
believes that the current rule is
sufficient for granting these late-
identified PRPs the opportunity for
submitting late comments for the record.
One commenter stated that new
information that confirms or
substantiates prior public comment
should be made part of the record, even
after a ROD is signed. EPA is not
required by statute or regulation to
consider these comments, although a
lead agency may, and frequently does,
consider post-ROD comments it
considers to be significant—in which
case both the comment and the lead
agency's response are part of the record.
Finally, EPA is making a minor change
to § 300.825(b] on additional public
comment periods to clarify that, in
addition to comments and responses to
comments, documents supporting the
request for an additional comment
period, and any decision documents
would be placed in the administrative
record file. Although this is what EPA
intended in the proposal, a clarification
is necessary to ensure consistency.
Final rule: EPA is promulgating
§ 300.825 as proposed except for an
addition to the last sentence of section
(b) as follows: "All additional comments
submitted during such comment periods
that are responsive to the request, and
any response to these comments, along
with documents supporting the request
and any final decision with respect to
the issue, shall be placed in the
administrative record file."
Subpart/— Use of Dispersants and
Other Chemicals
The following sections discuss
comments received on subpart J and
EPA's responses.
Name: Sections 300.900-300.920.
General.
Existing rule: Section 300.81 described
the purpose and applicability of existing
subpart H (now subpart I), and § 300.82
defines the key terms used in the
regulation. Section 300.83 provides that
EPA shall maintain a schedule of
dispersants and other chemical or
biological products that may be
authorized for use on oil discharges
called the "NCP Product Schedule."
Section 300.84 sets forth the
procedures by which an OSC may
authorize the use of products listed on
the NCP Product Schedule. The section
provides that an OSC, with concurrence
of the EPA representative to the RRT
and the concurrence of the state(s) with
jurisdiction over the navigable waters
(as defined by the CWA) polluted by the
oil discharge, may authorize the use of
dispersants, surface collecting agents,
and biological additives listed on the
NCP Product Schedule.
This section also provides that if the
OSC determines that the use of a
dispersant, surface collecting agent, or
biological additive is necessary to
prevent or substantially reduce a hazard
to human life, and there is insufficient
tune to obtain the needed concurrences,
the OSC may unilaterally authorize the
use of any product, including a product
not on the NCP Product Schedule. In
such instances, the OSC must inform the
EPA RRT representative and the
affected states of the use of a product as
soon as possible and must obtain their
concurrence for the continued use of the
product once the threat to human life
has subsided. This provision eliminates
delays in potentially life-threatening
situations, such as spills of highly
flammable petroleum products in
harbors or near inhabited areas.
Although they will not be listed on the
Schedule, this section also provides for
authorization of the use of burning
agents on a case-by-case basis. The use
of sinking agents is prohibited.
Section 300.84 explicitly encourages
advance planning for the use of
dispersants and other chemicals. The
OSC is authorized to approve the use of
dispersants and other chemicals without
the concurrence of the EPA
representative to the RRT and the
affected states if these parties have
previously approved a plan identifying
the products that may be used and the
particular circumstances under which
their use is preauthorized.
Section 300.85 details the data that
must be submitted before a dispersant,
surface collecting agent, or biological
additive may be placed on the NCP
Product Schedule. Section 300.86
describes the procedures for placing a
product on the Product Schedule and
also sets forth requirements designed to
avoid possible misrepresentation or
misinterpretation of the meaning of the
placement of a product on the Schedule,
including the wording of a disclaimer to
be used in product advertisements or
technical literature referring to
placement on the Product Schedule.
Appendix C details the methods and
types of apparatus to be used in carrying
out the revised standard dispersant
effectiveness and aquatic toxicity tests.
Appendix C also sets forth the format
required for summary presentation of
product test data.
Proposed rule: Proposed subpart J is
very similar to subpart H and contains
only minor revisions. Section numbers
and references to other sections and
subparts have been changed where
appropriate. Technical changes and
minor wording changes to improve
clarity have also been made.
Definitions formerly presented in
subpart H have been moved to subpart
A, and a new definition has been added
for miscellaneous oil spill control
agents. Accordingly, a list of data
requirements for miscellaneous spill
control agents is proposed to be added
to 5 300.915. The definition for navigable
waters is as defined in 40 CFR 110.1.
Section 300.910, which addressed
"Authorization of use," was modified
slightly in the proposed regulation to
emphasize the importance of obtaining
concurrence for the use of dispersants
and other chemicals from the
appropriate state representatives to the
Regional Response Team (RRT) and the
DOC/DOI natural resource trustees "as
appropriate."
Response to comments:—1.
Involvement of DOC/DOI trustees.
Many commenters opposed the
inclusion of the DOC/DOI trustees in
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8809
the authorization of use procedure,
( 300.910(a). Noting that dispersants
must be used quickly to be effective,
commenters asserted that the decision-
making process for responding to an oil
spill is already too time-consuming and
requires too many people to make a
timely decision. At most, several
commenters suggested, the DOC/DOI
trustees should be consulted rather than
having a concurrence. Other
commenters recommended that the OSC
be able to act unilaterally or be required
to obtain concurrences from only one
other entity such as the affected state
RRT representative or the National
Oceanic and Atmospheric
Administration (NOAA) Scientific
Support Coordinator (SSC).
In response, as discussed in the
preamble to the proposal, the decision to
use a chemical is highly dependent upon
specific circumstances, locations and
conditions which must be assessed by
the OSC, and the EPA and the state RRT
representative and DOC/DOI trustees
are in a unique position to understand
local conditions and to collect and
coordinate quickly the necessary local
information. Further, to facilitate a
timely decision, the preamble urged
early involvement of the EPA and state
RRT representatives and DOC/DOI
trustees, as appropriate. The intention of
the addition of the DOC/DOI trustees
was not to make the process more
cumbersome, but to reflect the
concurrence procedures that are already
actually applied. However, EPA believes
that the many comments concerning this
issue have raised a significant
distinction regarding concurrence during
an emergency, which should be a
streamlined procedure, and concurrence
during a planning procedure. The final
rule will be revised, therefore, to
recognize that distinction. It will return
to the authorization language of the
previous subpart H with the addition of
the provision that DOC/DOI trustees be
consulted, as appropriate. Language has
been added to § 300.910(e), however, to
require that the DOC/DOI trustees
concur with advance authorizations of
the use of dispersants, surface collecting
agents, biological additives, or
miscellaneous oil spill control agents
and the use of burning agents. EPA
believes that this change reflects the
current concurrence process that is
actually used in both preplanning and
operational approval situations and
retains for the OSC the obligation to
seek the consultation, when practicable,
of the natural resource trustees in an
emergency situations, but retains the
flexibility to authorize the use of
chemicals in such situations by a
streamlined procedure when necessary.
Some commenters supported the
extension of the concurrence authority
granted in $ 300.910(a) to the DOC/DOI
trustee agencies to include pre-planning
for the use of chemical and biological
agents outlined in paragraph (e) of this
section. Although the DOC/DOI
concurrence requirement has been
deleted from paragraph (a) of the
Authorization of use section,
concurrence of the DOC/DOI trustee
agencies will be required before a
chemical or biological agent can be pre-
authorized.
2. Approval and concurrence. Several
commenters supported the concept of
"pre-approval" of dispersants suggesting
that the EPA encourage advance
planning, and several commenters
implied that this provision had been
removed in proposed subpart ]. EPA
believes that § 300.910(e) continues to
endorse the concept that RRTs make
preauthorization determinations. This
section is essentially unchanged from
the previous subpart H.
Some commenters suggested that the
responder be able to unilaterally
authorize the use of surface collecting
agents or similar compounds which limit
the spread of oil or can enhance its
recoverability. EPA does not believe and
has been provided with no substantial
evidence to support a determination that
there is any reason to exempt surface
collecting agents or similar products
from the general requirement for state
and RRT concurrence. EPA intends that
RRT advance planning under
5 300.910(e) be used to address where
the use of such agents should be
encouraged or restricted on a regional
basis.
3. Dispersants. Several commenters
supported a requirement that
dispersants be considered on an equal
basis with other spill management tools
or be considered as a first response
option. Conversely, two commenters
recommended that the NCP state a clear
policy to the effect that dispersants are
a less desirable choice and should be
considered only when the threat to
human life and property will not allow
for containment and removal. EPA
believes that the circumstances
surrounding oil spills to navigable
waters and the factors influencing the
choice of a response method or methods
are many and that the NCP should not
indicate a preference for one cleanup
method over another. Section 300.310{b)
states that of the numerous chemical or
physical methods that may be used to
recover spilled oil or mitigate its effects,
the chosen methods shall be the most
consistent with protecting public health
and welfare and the environment.
4. NCP Product Schedule.
Commenters suggested that the listing of
a product on the NCP Product Schedule
should constitute "pre-approval" for the
use of those products, subject to a series
of well-defined guidelines such as those
developed by American Society of
Testing and Materials (ASTM)
Committee F-20. As an alternative, they
suggested that Subpart J should include
an additional section containing those
products that are "preapproved."
Placement of a product on the NCP
Product Schedule currently does not
mean that EPA has confirmed the safety
or effectiveness of the product or in any
way endorses the product. The purpose
of the standardized testing procedures
set out in Appendix C is to ensure that
OSCs have comparable data regarding
the effectiveness and toxicity of
different products. The circumstances
under which dispersants and other
chemicals may be used are many. It is
inappropriate, therefore, to establish
generic criteria that could be used to
determine whether a product is or is not
appropriate for a particular use under all
circumstances. As discussed earlier,
therefore, EPA believes that the RRTs
deliberations provide the best forum to
make determinations as to whether the
use of a dispersant or other chemical
should be approved for use in a
particular situation under all the
circumstances of the spill and its
location.
A commenter noted that California, as
well as other states, has promulgated
more restrictive lists of permitted oil
spill cleanup agents and recommended
that this fact should be noted in the
NCP. EPA believes that the RCP is the
appropriate document to recognize these
products. In situations that pose a threat
to human life, this same commenter
objected to the provision that permits
the OSC to authorize products not listed
on the NCP Product Schedule and
products that have not passed state
tests which evaluate performance and
safety. The commenter also questioned
the efficacy of stockpiling such products
in sufficient volumes and dose enough
to potential spill locations to be of any
use. EPA does not agree with this
recommendation. A life-threatening oil
discharge such as a spill of highly
flammable petroleum products in
harbors or near inhabited areas may
occur at a location where chemical
agents on the Schedule or state lists are
not immediately available for a wide
variety of reasons. In such a case, EPA
believes that the OSC must have the
discretion to use any products that, in
-------
8810
Federal Register /Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
his professional judgement, would
effectively and expeditiously mitigate
the threat to human life.
Another commenter suggested that
dispersant test applications be
conducted on a spill concurrently with
the deliberations of the RRT regarding
the authorization of a dispersant in a
specific situation. EPA believes that
such a procedure could undermine the
role of the RRT. Instead, EPA believes
that the most effective way to
streamline the decision to use or not to
use chemical countenneasures, is for the
RRTs to continue moving forward with
pre-authorization planning efforts.
A commenter asserted that
acceptance of a proposed oil spill
control agent for inclusion in the NCP
Product Schedule must be predicated on
EPA's judgement that the agent meets
some minimum criteria for the proposed
use. Currently, the data requirements for
placement of a product on the Schedule
are designed to provide sufficient data
for OSCs to judge whether and in what
quantities a dispersant may safely be
used to control a particular discharge.
As noted earlier, the standardized
testing procedures in Appendix C are
intended to ensure that OSCs have
comparable data regarding the product's
effectiveness, toxicity and other
characteristics. EPA has historically
recognized this situation by providing
the type of case-specific approval that
has been the NCP policy regarding the
use of chemical countenneasures for a
great many years. EPA, however,
recognizes the value of establishing
minimum criteria that would limit which
such products could be considered by
the Responsible Party and/or the OSC
on spills into navigable waters.
Therefore. EPA is in the process of
examining the dispersant authorization
policies of other countries, particularly
with regard to the application of
minimum criteria or standards. A study
to re-evaluate the toxicity test in light of
state-of-the-art developments is also
underway. EPA believes that defining
minimum criteria should be considered
and invites recommendations from
interested parties regarding threshold
criteria for effectiveness and toxicity of
dispersants and other chemical agents.
5. Other comments. Several
commenters suggested that the NCP
include a requirement to use the EPA's
Computerized Decision Tree (CDTJ for
oil spill response. EPA recognizes that
the CDT is a tool to assist in making
dispersant use or non-use decisions but
EPA believes that mandating its use in
all situations is inappropriate.
Some commenters suggested that all
parties to a dispersant use decision be
required to have hands-on training in oil
spill containment, recovery, cleanup,
and dispersants and other chemical
countermeasures from a recognized
authority. While this appears to be a
worthy goal, it would be difficult to
regulate on a national basis, both from
the perspective of certifying training
programs and monitoring RRT members
who have or have not received training.
EPA believes that these types of training
requirements are best addressed on a
regional basis and not by regulation.
A commenter suggested that there
should be a rapid and simplified way to
obtain local approval to carry out field
exercises and tests on real oil with real
dispersants in limited quantities. EPA
believes that the NCP does not need to
be amended to address this point and
refers the commenter to 40 CFR 110.9.
State RRT representatives can offer
advice about compliance with their
regulations on the authorization of
intentional spills for research and
demonstration purposes.
One commenter recommended that
the third sentence in § 300.910(e) should
be changed to read: "If the RRT
representative with jurisdiction over the
waters of the area to which a RCP
applies approves in advance the use of
products as described in the NCP
Product Schedule, the OSC may
authorize the use of the products
without obtaining the specific
concurrences described in paragraph (a)
of this section." EPA disagrees with this
recommendation. While the addition to
the inclusion of the DOC/DOI trustee
agencies in any pre-authorization
decision has been addressed earlier,
EPA would like to emphasize the
importance of obtaining the concurrence
of the affected states in pre-planning
agreements and believes that specific
mention of the state role will accomplish
this.
Final rule: Proposed subpart) has
been revised as follows:
1. "Hazardous Substance Releases
[Reserved]" has been added to
{ 300.905(0) to clarify that § 300.905(a)
applies only to oil discharges.
2. Sections 300.910 (a), (b), and (c)
have been revised to state that the OSC
should consult with the DOC and DOI
natural resource trustee, rather than
receive their concurrence, on the use of
dispersants, burning agents, etc.
3. Section 300.910(e) has been revised
to add a reference to the DOC and DOI
natural resource trustees.
4. The references to ASTM standards
in S 300.915 have been revised.
Appendix C to Part 300—Revised
Standard Dispersant Effectiveness and
Toxicity Tests
No comments were received on the
proposed revisions to Appendix C to
part 300. The two proposed technical
corrections have been made to
Appendix C. First, in the calculations
sections, 2.5 and 2.6, the formulas of
equations (2), (3), and (5) for
concentration of oil (C*,) in the sample,
dispersant blank correction (D). and oil
blank correction (OBC) have been
corrected. Second, the units of viscosity
(item 3, part IX in section 4.0) have been
changed from furol seconds to
centistokes. Last the new 1988 ASTM
standards have been cited for reference
to viscosity in centistokes.
Appendix D to Part 300—Appropriate
Actions and Methods of Remedying
Releases
No comments were received on the
proposed Appendix D to part 300. EPA
is promulgating Appendix D as
proposed. Appendix D includes
materials from existing § 300.88(j) on
appropriate actions at remedial sites
and existing $ 300.70 on methods for
remedying releases. The appendix
describes general approaches and lists
specific techniques but is not intended
to be inclusive of all possible methods of
addressing releases. A lead agency may
respond to types of releases and employ
techniques other than those that are
listed, depending on the particular
circumstances. EPA believes that the
provisions in existing $ 5 300.68fj) and
300.70 are not appropriate for inclusion
in proposed subpart E, which has been
structured to focus on the sequence of
response procedures. Because the
materials do not impose any
requirements or restrictions, they are
appropriate for an appendix. It is
intended that parties conducting
response actions should consider the
information provided in Appendix D.
m. Summary of Supporting Analyses
A. Regulatory Impact Analysis of
Revisions to CERCLA and the NCP
There are two economic documents
supporting today's final rule. The first
(the September 1988 RIA) was prepared
in September 1988 and supported the
proposed rule (53 FR 51394)." EPA has
11 Environmental Protection Agency. "Regulatory
Impact Analyiii In Support of the Propoted
Reviiioni to the National Oil and Hazardou*
Subctancet Pollution Contingency Plan." Office of
Solid Waite and Emergency Keipoiue. September
1968.
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations 8811
since updated several of the key
assumptions used in the September 1988
economic analysis and has prepared a
second economic document entitled,
"Regulatory Impact Analysis of
Revisions to CERCLA and the National
Contingency Plan" (November 1989
RIA). Both the September 1988 RIA and
the November 1989 RIA are available in
the Superfund Document Room of the
U.S. Environmental Protection Agency.
401M Street. SW.. Washington. DC.
20460.
Both RIAs estimate total and
incremental costs to the Fund, states,
federal agencies, and responsible parties
of implementing the remedial program
during the period FY87 through FY91,
the duration of reauthorization of the
Superfund program. EPA has focused its
analyses on four provisions with
incremental costs and benefits
attributable directly to the 1986
CERCLA amendments: (1) Selection of
remedy; (2) removals; (3) water
restoration; and (4) publicly-operated
sites. The impacts of these provisions
are attributable directly to the 1986
CERCLA amendments, rather than to
the NCP revisions, because in these
areas EPA chose to retain the flexibility
of the statutory language; the NCP
essentially codifies the statutory
requirements. The RIAs estimate the
incremental costs of the provisions
against a baseline defined by the
requirements of CERCLA as specified in
the 1985 NCP. The 1985 NCP is the
proper baseline for the analysis of
changes attributable to the statutory
amendments because the 1985 NCP is
the legal framework that defines
response activities in the absence of the
amendments to CERCLA.
The November 1989 RIA updates
estimates for only the selection of
remedy and water restoration provisions
in today's final regulation. The analyses
of the other provisions have not been
updated because they did not rely on
quantitative analyses, and no new data
have been developed that would allow a
quantitative analysis. In addition, the
November 1989 RIA provides a new
analysis of the costs of narrowing the
range of risks to be considered in
developing and selecting remedies. A
brief summary of the analyses presented
in the November 1989 RIA is provided
below.
1. Selection of remedy. The new
CERCLA preference for reducing
mobility, toxicity, and volume of
contaminants at a site is assumed to be
a preference for remedies that use
treatment as a principal element. The
analysis of the overall cost of the
selection of remedy incorporates several
assumptions:
• The estimated costs of treatment
and containment remedies have not
been updated since the September 1988
RIA. The estimates of selection of
remedy costs were developed using cost
data from 30 RODs, signed during the
FY82 to FY86 period, that contained
information on capital and operation
and maintenance (O&M) costs for both
treatment-based remedies and
containment-based remedies at a site.
• The percentage of remedial action
(RA) starts in FY87 and FY88 selecting
treatment over containment was
assumed to be the same as the
percentage of RODs signed that selected
treatment alternatives in the same year.
Because of the time lag between ROD
signature and the actual RA start, this
assumption leads to an overestimate of
the cost over the period studied, but
provides a more accurate estimate of the
potential impacts beyond the
reauthorization period of CERCLA.
• The estimated number of RA starts
in FY87 and FY88 was based on actual
RA starts as reported in the CERCLA
Information System (CERCLJS).
• The number of RA starts in FY89
through FY91 were estimated bassd on
the mandatory schedules in section 116
of CERCLA for 175 RA starts by the end
of FY89 and an additional 200 starts by
FY91.
• The fraction of RA starts in FY89
through FY91 that would have treatment
as the selected option was assumed to
rise to 66 percent in FY89 and 80 percent
in FY90 and FY91 as a consequence of
the selection of remedy provisions in the
1986 CERCLA amendments.
EPA estimates that the total cost of
the selection of remedy provisions in the
1986 amendments to CERCLA, during
the FY87 through FY91 period, is $8.7
billion: $3.95 billion to the Fund; $0.58
billion to states; $3.15 billion to
responsible parties; and $1.03 billion to
federal agencies. The 5-year present
value of the estimated incremental cost
of the selection of remedy provisions
over the costs imposed already by the
1985 NCP is $2.9 billion: $1.32 billion to
the Fund; $0.14 billion to states; $1.05
billion to responsible parties; and $0.41
billion to federal agencies. Changes in
program administrative costs are not
included in these estimates.
A sensitivity analysis was included in
the September 1988 RIA to determine
how the cost estimates change if the
most important assumptions used to
derive the estimates are altered. In
addition to varying the cost parameters
used in the analysis, the frequency of
use of treatment under the 1986
CERCLA amendments is varied between
50 percent of sites or operable units
using treatment to 100 percent using
treatment for the period FY89 through
FY91. In the November 1989 RIA, the
analysis of the effects of the frequency
of use of treatment has been updated;
the results of the sensitivity analysis
estimates the total incremental costs of
the selection of remedy provisions to be
between $1.3 and $4.3 billion, with a
best estimate of $2.9 billion.
The 1986 amendments to CERCLA
require RAs to comply with state
applicable or relevant and appropriate
requirements (ARARs) that are more
stringent than federal ARARs. To the
extent possible, therefore, cost estimates
used in the November 1989 RIA are for
remedies expected to comply with
federal ARARs and those state ARARs
more stringent than the federal
standards. The September 1988 RIA
concluded that compliance with more
stringent state ARARs may increase the
costs of an RA by about $6.6 million.
However, EPA does not believe that an
additional $6.6 million will be incurred
to meet state ARARs for every RA under
CERCLA because many RODs signed
prior to the 1986 CERCLA amendments
already showed evidence of compliance
with state ARARs and many states do
not have relevant standards more
stringent than federal standards.
2. Water restoration provisions.
Under the 1985 NCP, states held primary
responsibility for financing O&M costs
associated with an RA at a Fund-lead
site. During the first fiscal year after
completion of the capital expenditure at
a site, the Fund financed a maximum of
90 percent of the operational costs until
EPA was assured that the remedy was
operational and functional. In each
subsequent year, the state financed 100
percent of O&M costs. The 1986
amendments to CERCLA change this
funding relationship for RAs involving
treatment to restore ground water or
surface water. Long-term costs of
treatment of contaminated ground water
or surface water now are defined to be a
component of the RA when treatment is
being used to restore an aquifer or
surface-water body. Hence, this
provision transfers financing
responsibilities at Fund-lead sites using
water restoration as part of the selected
remedy from the states to the Fund.
Under the new provision, the Fund
finances 90 percent of the costs of watei
restoration for up to 10 years; states
finance the remaining 10 percent of
costs during these years. As discussed
in the November 1989 RIA. EPA
estimates that approximately $50.5
million in obligations to pay for water
-------
8812 Federal Register / Vol. 55. No. 46 / Thursday, March 8, 1990 / Rules and Regulations
restoration will be transferred from
states to the Fund over the FY87-91
period as a result of the provisions on
ground-water and surface-water
restoration in the 1986 amendments to
CERCLA. Because the provision results
only in transfers of obligations to pay
from states to the Fund, it does not give
rise to real economic costs or real
economic benefits.
3. Use of risk range. As part of its
continuing analysis, EPA has evaluated
the incremental costs between remedies
selected at the 10'*and the 10''risk
levels. EPA identified two potential
activities that would likely be affected:
(1) Evaluation of remedies capable of
achieving a 10"7 risk level; and (2)
selection of such a remedy.
Most feasibility studies (FSs) and
Records of Decision (RODs) completed
to date include estimates of costs of
achieving some stated threshold goal
(e.g., MCLs. ARARs); other FSs and
RODs are more detailed and estimate
the effectiveness of various remedial
alternatives in achieving specific risk
target levels (e.g., 10~*risk, "high,"
"medium," or "low" risk). Only a few
FSs or RODs completed to date,
however, actually contain cost estimates
associated with achieving different risk
levels or with achieving a risk level as
low as 10"7.
Because of the sparsity of data, EPA
could not perform a detailed analysis of
the incremental cost or cost savings
attributable to different acceptable
cleanup levels and, in particular, to
establishing a broader or narrower
acceptable risk level. In analyzing the
costs incurred to date in developing
different FSs, however, it became clear
that generally the incremental cost of
conducting a detailed evaluation of an
alternative at one risk level versus "n"
risk levels is minor relative to the cost of
the FS. Essentially, the risk assessment
and costing exercise relies on some sunk
(i.e., fixed) costs associated with
developing relationships (e.g., curves)
that relate the amount of material to be
treated to the risk levels that can be
achieved. Once the relationship is
developed, it is a relatively simple
matter to generate estimates for one or
any number of risk levels. EPA
acknowledges, however, that the
broader risk range may, in certain
instances, result in an increased level of
effort expended to evaluate additional
alternatives or to do a more detailed
analysis of existing alternatives.
EPA believes the greatest cost
attributable to a broader risk range is
associated with the implementation of a
remedy that can achieve a 10"'risk
level. Based on data from the few sites
that evaluated different alternatives at a
range of risk levels, EPA estimates that
the incremental cost of cleaning up to a
10"' versus a 10"'risk level ranges from
approximately $700,000 to $10.4 million
per site. These incremental costs
represent a percentage cost increase
from 13 to 50 percent. Because the
survey was limited, there may be other
Bites where the percentage cost increase
associated with cleanup to 10"' rather
than 10"'may be lower or higher than 13
to 50 percent.
B. Executive Order No. 12291
Regulations must be classified as
major or nonmajor to satisfy the
mlemaking protocol established by
Executive Order (E.O.) No. 12291. This
Executive Order establishes the
following criteria for a regulation to
qualify as a major rule.
1. An annual effect on the economy of
$100 million or more;
2. A major increase in costs or prices
for consumers, individual industries,
federal, state, or local government
agencies or geographic regions; or
3. Significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
enterprises to compete with foreign-
based enterprises in domestic or export
markets.
Based on the economic analyses
summarized above, the revised NCP is a
major rule because it will have an
annual effect on the economy of $100
million or more. This regulation has
been submitted to the Office of
Management and Budget for review
under Executive Order Nos. 12291 and
12580.
C. Regulatory Flexibility Act
In accordance with the Regulatory
Flexibility Act of 1980, agencies must
evaluate the effects of a regulation on
small entities. If the rule is likely to have
a "significant impact on a substantial
number of small entities," then a
Regulatory Flexibility Analysis must be
performed. EPA certifies that today's
rule will not have a significant impact
on a substantial number of small
entities.
Small businesses generally will be
affected only by the changes that
address selection of remedy. The cost of
a Superfund cleanup, whether using
containment-based remedies or
treatment-based remedies, can be quite
large and, hi some cases, may be
beyond the financial resources of a
responsible party (RP). Because RPs can
be in different industry sectors and face
different market structures, each RP'a
ability to finance Superfund response
actions could be very different The
analytical framework used in Chapter 6
of the September 1988 RIA to estimate
the economic effects of the CERCLA
provisions on typical RPs relies heavily
on publicly-available financial
information and makes the conservative
assumption that each RP would be
solely responsible for the entire RA cost
The analysis includes two financial tests
performed on a sample of 15 firms
selected randomly and varying in size.
One test (the net income test) compares
average response costs to the sample
firm's net income or cash flow. The
second test (a modified Beaver ratio)
compares the sample firm's cash flow to
its total liabilities, including response
costs. On the basis of this analysis, EPA
has determined that the revisions to the
NCP will not result in a significant
additional impact on a substantial
number of small businesses. That is, to
the extent that small businesses are
significantly impacted under the
revisions to the NCP, they were already
significantly impacted under the 1985
NCP.
Municipalities also could be affected
by the revisions to the selection of
remedy provisions in the NCP because
municipalities can be RPs. NPL sites
owned by municipalities tend to be
municipal wellfields and landfills. The
cleanup of wellfields is undertaken to
restore drinking water to a community
either by pumping and treating a
contaminant plume or building an
alternative water distribution system.
The contaminant plume usually has not
been created by municipality actions;
instead, the plume may have migrated
from a nearby industrial waste site. As a
result, the municipality is not likely to
be liable for the costs of response
actions. At municipal landfill sites, or
other landfill sites that have accepted
municipal wastes, the municipality also
is not likely to be liable for 100 percent
of response costs, because other entities
typically have contributed to the site
problem. The range of capital coats of
cleanups at municipally-owned sites
with RODs signed over the FY82 to FY86
period is from $304,000 for construction
of an alternative water supply system to
$23.2 million to cap a 90 acre landfill
site.
The level of involvement of small
municipalities in the Superfund program
is not expected to change under the 1986
CERCLA amendments. The sites at
which municipalities are most likely to
be involved are not expected to be
affected greatly by the new CERCLA
•election of remedy provisions. The
costs of cleaning up municipal landfills
in particular are not expected to
increase substantially as a result of the
-------
iiiiiiiiiii
Part IV:
1990 Final NCP
!••*•••••••
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
8813
CERCLA amendments because the
typical size of such sites limits the
feasibility of implementing treatment-
based remedies.
D. Paperwork Reduction Act
The information collection
requirements contained in today's rule
have been approved by the Office of
Management and Budget (OMB) under
the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. and
have been assigned OMB control
number 2050-0096.
Public reporting burden for this
collection of information is estimated to
be a weighted average of 2,620 hours per
respondent, including time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing the collection of information.
Respondent means states and other
entities (excluding the federal
government) conducting required
activities associated with remedial
actions.
Send comments regarding the burden
estimate or any other aspect of this
collection of information, including
suggestions for reducing this burden, to
Chief, Information Policy Branch, PM-
223, U.S. Environmental Protection
Agency, 401 M Street SW., Washington,
DC, 20460; and to the Office of
Information and Regulatory Affairs,
Office of Management and Budget,
Washington, DC, 20503, marked
"Attention: Desk Officer for EPA."
List of Subjects in 40 CFR Part 300
Air pollution control. Chemicals,
Hazardous materials, Hazardous
substances, Incorporation by reference,
Intergovernmental relations, Natural
resources, Occupational safety and
health, Oil pollution, Reporting and
recordkeeping requirements, Superfund,
Waste treatment and disposal, Water
pollution control, Water supply.
Dated: February 2,1990.
William K. Reiliy,
Administrator.
Therefore, 40 CFR part 300 is amended
as follows:
PART 300—{AMENDED]
1. The authority citation for part 300 is
revised to read as follows:
Authority: 42 U.S.C. 9601-9657; 33 U.S.C.
1321 (c)(2); E.0.11735,38 FR 21243; E.0.12580,
52 FR 2923.
2. Subparts A through H of part 300
are revised, subparts I and) are added,
and subpart K is added and reserved to
read as follows:
PART 300—NATIONAL OIL AND
HAZARDOUS SUBSTANCES
POLLUTION CONTINGENCY PLAN
Subpart A—Introduction
Sec.
300.1 Purpose and objectives.
300.2 Authority and applicability.
300.3 Scope.
300.4 Abbreviations.
300.5 Definitions.
300.6 Use of number and gender.
300.7 Computation of time.
Subpart B—Responsibility and Organization
for Response
300.100 Duties of President delegated to
federal agencies.
300.105 General organization concepts.
300.110 National Response Team.
300.115 Regional Response Teams.
300.120 On-scene coordinators and remedial
project managers: general
responsibilities.
300.125 Notification and communications.
300.130 Determinations to initiate response
and special conditions.
300.135 Response operations.
300.140 Multi-regional responses.
300.145 Special teams and other assistance
available to OSCs/RPMs.
300.150 Worker health and safety.
300.155 Public information and community
relations.
300.160 Documentation and cost recovery.
300.165 OSC reports.
300.170 Federal agency participation.
300.175 Federal agencies: additional
responsibilities and assistance.
300.180 State and local participation in
response.
300.185 Nongovernmental participation.
Subpart C—Planning snd Preparedness
300.200 General.
300.205 Planning and coordination structure.
300.210 Federal contingency plans.
300.215 Title HI local emergency response
plans.
300.220 Related Title 01 issues.
Subpart D—Operational Response Phases
for Oil Removal
300.300 Phase I—Discovery or notification.
300.305 Phase H—Preliminary assessment
and initiation of action.
300.310 Phase HI—Containment.
countenneasures. cleanup, and disposal.
300.315 Phase IV—Documentation and cost
recovery.
300.320 General pattern of response.
300.330 Wildlife conservation.
300.335 Funding.
Subpart E—Hazardous Substance
Response
300.400 General.
300.405 Discovery or notification.
300.410 Removal site evaluation.
300.415 Removal action.
300.420 Remedial site evaluation.
300.425 Establishing remedial priorities.
300.430 Remedial investigation/feasibility
study and selection of remedy.
300.435 Remedial design/remedial action,
operation and maintenance.
300.440 Procedures for planning and
implementing off-site response actions.
[Reserved]
Subpart F—State Involvement in Hazardous
Substance Response
300.500 General.
300.505 EPA/State Superfund Memorandum
of Agreement (SMOA).
300.510 State assurances.
300.515 Requirements for state involvement
in remedial and enforcement response.
300.520 State involvement in EPA-lead
enforcement negotiations.
300.525 State involvement in removal
actions.
Subpart G—Trustees for Natural Resources
300.600 Designation of federal trustees.
300.605 State trustees.
300.610 Indian tribes.
300.615 Responsibilities of trustees.
Subpart H—Participation by Other Persons
300.700 Activities by other persons.
Subpart I—Administrative Record for
Selection of Response Action
300.800 Establishment of an administrative
record.
300.605 Location of the administrative
record file.
300.810 Contents of the administrative
record file.
300.815 Administrative record file for a
remedial action.
300.820 Administrative record file for a
removal action.
300.825 Record requirements after the
decision document is signed.
Subpart J—Use of Dispersants and Other
Chemicals
300.900 General.
300.905 NCP Product Schedule.
300.910 Authorization of use.
300.915 Data requirements.
300.920 Addition of products to schedule.
Subpart K—federal Facilities [Reserved]
Subpart A—Introduction
J 300.1 Purpose and objectives.
The purpose of the National Oil and
Hazardous Substances Pollution
Contingency Plan (NCP) is to provide
the organizational structure and
procedures for preparing for and
responding to discharges of oil and
releases of hazardous substances,
pollutants, and contaminants.
§300.2 Authority and appHcabfltty.
The NCP is required by section 105 oi
the Comprehensive Environmental
Response, Compensation, and Liability
Act of 1980.42 U.S.C. 9605, as amended
by the Superfund Amendments and
Reauthorization Act of 1986 (SARA).
Pub.L 99-499, (hereinafter CERCLA).
and by section 311(c)(2) of the Clean
Water Act (CWA), as amended, 33
-------
8814
Federal Register / Vol. 55. No. 46 / Thursday. March 8, 1990 / Rules and Regulations
U.S.C. 1321(c)(2). In Executive Order
(E.O.) 12580 (52 FR 2923, January 29.
1987), the President delegated to the
Environmental Protection Agency (EPA)
the responsibility for the amendment of
the NCP. Amendments to the NCP are
coordinated with members of the
National Response Team (NRT) prior to
publication for notice and comment.
This includes coordination with the
Federal Emergency Management
Agency and the Nuclear Regulatory
Commission in order to avoid
inconsistent or duplicative requirements
in the emergency planning
responsibilities of those agencies. The
NCP is applicable to response actions
taken pursuant to the authorities under
CERCLA and section 311 of the CWA.
{300.3 Scope.
(a) The NCP applies to and is in effect
fon__
(1) Discharges of oil into or upon the
navigable waters of the United States
and adjoining shorelines, the waters of
the contiguous zone, and the high seas
beyond the contiguous zone in
connection with activities under the
Outer Continental Shelf Lands Act or
the Deepwater Port Act of 1974, or
which may affect natural resources
belonging to, appertaining to, or under
the exclusive management authority of
the United States (including resources
under the Magnuson Fishery
Conservation and Management Act).
(See sections 311(b)(l) and 502(7) of the
CWA.)
(2) Releases into the environment of
hazardous substances, and pollutants or
contaminants which may present an
imminent and substantial danger to
public health or welfare.
(b) The NCP provides for efficient,
coordinated, and effective response to
discharges of oil and releases of
hazardous substances, pollutants, and
contaminants in accordance with the
authorities of CERCLA and the CWA. It
provides for:
(1) The national response organization
that may be activated in response
actions. It specifies responsibilities
among the federal, state, and local
governments and describes resources
that are available for response.
(2) The establishment of requirements
for federal regional and on-scene
coordinator (OSC) contingency plans. It
also summarizes state and local
emergency planning requirements under
SARA Title HI.
(3) Procedures for undertaking
removal actions pursuant to section 311
of the CWA.
(4) Procedures for undertaking
response actions pursuant to CERCLA.
(5) Procedures for involving state
governments in the initiation,
development, selection, and
implementation of response actions.
(6) Designation of federal trustees for
natural resources for purposes of
CERCLA and the CWA.
(7) Procedures for the participation of
other persons in response actions.
(8) Procedures for compiling and
making available an administrative
record for response actions.
(9) National procedures for the use of
dispersants and other chemicals in
removals under the CWA and response
actions under CERCLA.
(c) In implementing the NCP,
consideration shall be given to
international assistance plans and
agreements, security regulations and
responsibilities based on international
agreements, federal statutes, and
executive orders. Actions taken
pursuant to the NCP shall conform to the
provisions of international joint
contingency plans, where they are
applicable. The Department of State
shall be consulted, as appropriate, prior
to taking any action which may affect its
activities.
§300.4 Abbreviations.
(a) Department and Agency Title
Abbreviations:
ATSDR—Agency for Toxic Substances
and Disease Registry
DOC—Department of Commerce
DOD—Department of Defense
DOE—Department of Energy
DOI—Department of the Interior
DO]—Department of Justice
DOL—Department of Labor
DOS—Department of State
DOT—Department of Transportation
EPA—Environmental Protection Agency
FEMA—Federal Emergency
Management Agency
HHS—Department of Health and
Human Services
NIOSH—National Institute for
Occupational Safety and Health
NOAA—National Oceanic and
Atmospheric Administration
RSPA—Research and Special Programs
Administration
USCG—United States Coast Guard
USDA—United States Department of
Agriculture
Note: Reference \» made in the NCP to both
the Nuclear Regulatory Commission and the
National Response Center. In order to avoid
confusion, the NCP will spell out Nuclear
Regulatory Commisnon and use the
abbreviation "NRC" only with respect to the
National Response Center.
(b) Operational Abbreviations:
ARARs—Applicable or Relevant and
Appropriate Requirements
CERCLIS—CERCLA Information System
CRC—Community Relations
Coordinator
CRP—Community Relations Plan
ERT—Environmental Response Team
FCO—Federal Coordinating Officer
FS—Feasibility Study
HRS—Hazard Ranking System
LEPC—Local Emergency Planning
Committee
NCP—National Contingency Plan
NPL—National Priorities List
NRC—National Response Center
NRT—National Response Team
NSF—National Strike Force
O&M—Operation and Maintenance
OSC—On-Scene Coordinator
PA—Preliminary Assessment
PLAT—Public Information Assist Team
RA—Remedial Action
RAT—Radiological Assistance Team
RCP—Regional Contingency Plan
RD—Remedial Design
RI—Remedial Investigation
ROD—Record of Decision
RPM—Remedial Project Manager
RRC—Regional Response Center
RRT—Regional Response Team
SAC—Support Agency Coordinator
SERC—State Emergency Response
Commission
SI—Site Inspection
SMOA—Superfund Memorandum of
Agreement
SSC—Scientific Support Coordinator
§300.5 Definition*.
Terms not defined in this section have
the meaning given by CERCLA or the
CWA.
Activation means notification by
telephone or other expeditious manner
or, when required, the assembly of some
or all appropriate members of the RRT
or NRT.
Alternative water supplies as defined
by section 101(34) of CERCLA, includes,
but is not limited to. drinking water and
household water supplies.
Applicable requirements means those
cleanup standards, standards of control,
and other substantive requirements,
criteria, or limitations promulgated
under federal environmental or state
environmental or facility siting laws that
specifically address a hazardous
substance, pollutant contaminant,
remedial action, location, or other
circumstance found at a CERCLA site.
Only those state standards that are
identified by a state in a timely manner
and that are more stringent than federal
requirements may be applicable.
Biological additives means
microbiological cultures, enzymes, or
nutrient additives that are deliberately
introduced into an oil discharge for the
specific purpose of encouraging
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations 8815
biodegradation to mitigate the effects of
the discharge.
Burning agents means those additives
that, through physical or chemical
means, improve the combustibility of the
materials to which they are applied.
CERCLA is the Comprehensive
Environmental Response,
Compensation, and Liability Act of I960,
as amended by the Superfund
Amendments and Reauthorization Act
of 1986.
CERCLJS is the abbreviation of the
CERCLA Information System, EPA's
comprehensive data base and
management system that inventories
and tracks releases addressed or
needing to be addressed by the
Superfund program. CERCLJS contains
the official inventory of CERCLA sites
and supports EPA's site planning and
tracking functions. Sites that EPA
decides do not warrant moving further
in the site evaluation process are given a
"No Further Response Action Planned"
(NFRAP) designation in CERCLIS. This
means that no additional federal steps
under CERCLA will be taken at the site
unless future information so warrants.
Sites are not removed from the data
base after completion of evaluations in
order to document that these
evaluations took place and to preclude
the possibility that they be needlessly
repeated. Inclusion of a specific site or
area in the CERCLIS data base does not
represent a determination of any party's
liability, nor does it represent a finding
that any response action is necessary.
Sites that are deleted from the NPL are
not designated NFRAP sites. Deleted
sites are listed in a separate category in
the CERCLIS data base.
Chemical agents means those
elements, compounds, or mixtures that
coagulate, disperse, dissolve, emulsify,
foam, neutralize, precipitate, reduce,
solubilize, oxidize, concentrate, congeal,
entrap, fix, make the pollutant mass
more rigid or viscous, or otherwise
facilitate the mitigation of deleterious
effects or the removal of the pollutant
from the water.
Claim as denned by section 101(4) of
CERCLA, means a demand in writing for
a turn certain.
Coastal waters for the purpose* of
classifying the size of discharges, means
the waters of the coastal zone except for
the Great Lakes and specified ports and
harbors on inland rivers.
Coastal zone as defined for the
purpose of the NCP, means all United
States waters subject to the tide. United
States waters of the Great Lakes,
specified ports and harbors on inland
rivers, waters of the contiguous zone,
other waters of the high seas subject to
the NCP, and the land surface or land
substrata, ground waters, and ambient
air proximal to those waters. The term
coastal zone delineates an area of
federal responsibility for response
action. Precise boundaries are
determined by EPA/USCG agreements
and identified in federal regional
contingency plans.
Community relations means EPA's
program to inform and encourage public
participation in the Superfund process
and to respond to community concerns.
The term "public" includes citizens
directly affected by the site, other
interested citizens or parties, organized
groups, elected officials, and potentially
responsible parties.
Community relations coordinator
means lead agency staff who work with
the OSC/RPM to involve and inform the
public about the Superfund process and
response actions in accordance with the
interactive community relations
requirements set forth in the NCP.
Contiguous zone means the zone of
the high seas, established by the United
States under Article 24 of the
Convention on the Territorial Sea and
Contiguous Zone, which is contiguous to
the territorial sea and which extends
nine miles seaward from the outer limit
of the territorial sea.
Cooperative agreement is a legal
instrument EPA uses to transfer money,
property, services, or anything of value
to a recipient to accomplish a public
purpose in which substantial EPA
involvement is anticipated during the
performance of the project.
Discharge as defined by section
311(a)(2] of the CWA, includes, but is
not limited to, any spilling, leaking,
pumping, pouring, emitting, emptying, or
dumping of oil, but excludes discharges
in compliance with a permit under
section 402 of the CWA, discharges
resulting from circumstances identified
and reviewed and made a part of the
public record with respect to a permit
issued or modified under section 402 of
the CWA, and subject to a condition in
such permit, or continuous or
anticipated intermittent discharges from
a point source, identified in a permit or
permit application under section 402 of
the CWA, that are caused by events
occurring within the scope of relevant
operating or treatment systems. For
purposes of the NCP, discharge also
means threat of discharge.
Dispersants means those chemical
agents that emulsify, disperse, or
solubilize oil into the water column or
promote the surface spreading of oil
slicks to facilitate dispersal of the oil
into the water column.
Drinking water supply as defined by
section 101(7} of CERCLA, means any
raw or finished water source that it or
may be used by a public water system
(as defined in the Safe Drinking Water
Act) or as drinking water by one or more
individuals.
Environment as denned by section
101(8) of CERCLA, means the navigable
waters, the waters of the contiguous
zone, and the ocean waters of which the
natural resources are under the
exclusive management authority of the
United States under the Magnuson
Fishery Conservation and Management
Act; and any other surface water,
ground water, drinking water supply,
land surface or subsurface strata, or
ambient air within the United States or
under the jurisdiction of the United
States.
Facility as defined by section 101(9) of
CERCLA, means any building, structure,
installation, equipment, pipe or pipeline
(including any pipe into a sewer or
publicly owned treatment works], well,
pit, pond, lagoon, impoundment, ditch,
landfill, storage container, motor
vehicle, rolling stock, or aircraft, or any
site or area, where a hazardous
substance has been deposited, stored,
disposed of, or placed, or otherwise
come to be located; but does not include
any consumer product in consumer use
or any vessel.
Feasibility study (FS) means a study
undertaken by the lead agency to
develop and evaluate options for
remedial action. The FS emphasizes
data analysis and is generally performed
concurrently and in an interactive
fashion with the remedial investigation
(RI), using data gathered during the RI.
The RI data are used to define the
objectives of the response action, to
develop remedial action alternatives,
and to undertake an initial screening
and detailed analysis of the alternatives
The term also refers to a report that
describes the results of the study.
First federal official means the first
federal representative of a participating
agency of the National Response Team
to arrive at the scene of a discharge or a
release. This official coordinates
activities under the NCP and may
initiate, in consultation with the OSC,
any necessary actions until the arrival
of the predesignated OSC. A state with
primary jurisdiction over a site covered
by a cooperative agreement will act in
the stead of the first federal official for
any incident at the site.
Fund or Trust Fund means the
Hazardous Substance Superfund
established by section 9507 of the
Internal Revenue Code of 1986.
Ground water as defined by section
101(12) of CERCLA, means water in a
saturated zone or stratum beneath the
surface of land or water.
-------
8816 Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
Hazard Ranking System (HRS) means
the method used by EPA to evaluate the
relative potential of hazardous
substance releases to cause health or
safety problems, or ecological or
environmental damage.
Hazardous substance as defined by
section 101(14) of CERCLA, means: Any
substance designated pursuant to
section 311(b)(2)(A) of the CWA; any
element, compound, mixture, solution, or
substance designated pursuant to
section 102 of CERCLA; any hazardous
waste having the characteristics
identified under or listed pursuant to
section 3001 of the Solid Waste Disposal
Act (but not including any waste the
regulation of which under the Solid
Waste Disposal Act has been suspended
by Act of Congress); any toxic pollutant
listed under section 307(a) of the CWA;
any hazardous air pollutant listed under
section 112 of the Clean Air Act; and
any imminently hazardous chemical
substance or mixture with respect to
which the EPA Administrator has taken
action pursuant to section 7 of the Toxic
Substances Control Act. The term does
not include petroleum, including crude
oil or any fraction thereof which is not
otherwise specifically listed or
designated as a hazardous substance in
the first sentence of this paragraph, and
the term does not include natural gas,
natural gas liquids, liquefied natural gas,
or synthetic gas usable for fuel (or
mixtures of natural gas and such
synthetic gas).
Indian tribe as defined by section
101(36) of CERCLA. means any Indian
tribe, band, nation, or other organized
group or community, including any
Alaska Native village but not including
any Alaska Native regional or village
corporation, which is recognized as
eligible for the special programs and
services provided by the United States
to Indians because of their status as
Indians.
Inland waters, for the purposes of
classifying the size of discharges, means
those waters of the United States in the
inland zone, waters of the Great Lakes,
and specified ports and harbors on
inland rivers.
Inland tone means the environment
inland of the coastal zone excluding the
Great Lakes and specified ports and
harbors on inland rivers. The term
inland zone delineates an area of
federal responsibility for response
action. Precise boundaries are
determined by EPA/USCG agreements
and identified in federal regional
contingency plans.
Lead agency means the agency that
provides the OSC/RPM to plan and
implement response action under the
NCP. EPA, the USCG, another federal
agency, or a state (or political
subdivision of a state) operating
pursuant to a contract or cooperative
agreement executed pursuant to section
104(d)(l) of CERCLA, or designated
pursuant to a Superfund Memorandum
of Agreement (SMOA) entered into
pursuant to subpart F of the NCP or
other agreements may be the lead
agency for a response action. In the case
of a release of a hazardous substance,
pollutant, or contaminant where the
release is on, or the sole source of the
release is from, any facility or vessel
under the jurisdiction, custody, or
control of Department of Defense (DOD)
or Department of Energy (DOE), then
DOD or DOE will be the lead agency.
Where the release is on, or the sole
source of the release is from, any facility
or vessel under the jurisdiction, custody,
or control of a federal agency other than
EPA. the USCG, DOD. or DOE, then that
agency will be the lead agency for
remedial actions and removal actions
other than emergencies. The federal
agency maintains its lead agency
responsibilities whether the remedy is
selected by the federal agency for non-
NPL sites or by EPA and the federal
agency or by EPA alone under CERCLA
section 120. The lead agency will consult
with the support agency, if one exists,
throughout the response process.
Management of migration means
actions that are taken to minimize and
mitigate the migration of hazardous
substances or pollutants or
contaminants and the effects of such
migration. Measures may include, but
are not limited to, management of a
plume of contamination, restoration of a
drinking water aquifer, or surface water
restoration.
Miscellaneous oil spill control agent
is any product other than a dispersant,
sinking agent, surface collecting agent
biological additive, or burning agent
that can be used to enhance oil spill
cleanup, removal, treatment or
mitigation.
National Priorities List (NPL) means
the list, compiled by EPA pursuant to
CERCLA section 105, of uncontrolled
hazardous substance releases in the
United States that are priorities for long-
term remedial evaluation and response.
Natural resources means land, fish,
wildlife, biota, air. water, ground water.
drinking water supplies, and other such
resources belonging to, managed by.
held in trust by, appertaining to, or
otherwise controlled by the United
States (including the resources of the
exclusive economic zone defined by the
Magnuson Fishery Conservation and
Management Act of 1878), any state or
local government any foreign
government any Indian tribe, or, if such
resources are subject to a trust
restriction on alienation, any member of
an Indian tribe.
Navigable waters, as defined by 40
CFR 110.1, means the waters of the
United States, including the territorial
•eas. The term includes:
(a) All waters that are currently used,
were used in the past or may be
susceptible to use in interstate or foreign
commerce, including all waters that are
subject to the ebb and flow of the tide;
(b) Interstate waters, including
interstate wetlands;
(c) All other waters such as intrastate
lakes, rivers, streams (including
intermittent streams), mudflats,
sandflats. and wetlands, the use,
degradation, or destruction of which
would affect or could affect interstate or
foreign commerce including any such
waters:
(1) That are or could be used by
interstate or foreign travelers for
recreational or other purposes;
(2) From which fish or shellfish are or
could be taken and sold in interstate or
foreign commerce;
(3) That are used or could be used for
industrial purposes by industries in
interstate commerce;
(d) All impoundments of waters
otherwise defined as navigable waters
under this section;
(e) Tributaries of waters identified in
paragraphs (a) through (d) of this
definition, including adjacent wetlands;
and
(f) Wetlands adjacent to waters
identified in paragraphs (a) through (e)
of this definition: Provided, that waste
treatment systems (other than cooling
ponds meeting the criteria of this
paragraph) are not waters of the United
States.
Off shore facility as defined by section
101(17) of CERCLA and section
311(a)(ll) of the CWA, means any
facility of any kind located in, on, or
under any of the navigable waters of the
United States and any facility of any
kind which is subject to the jurisdiction
of the United States and is located in,
on, or under any other waters, other
than a vessel or a public vessel.
Oil as defined by section 311(a)(l) of
the CWA. means oil of any kind or in
any form, including, but not limited to,
petroleum, fuel oil, sludge, oil refuse,
and oil mixed with wastes other than
dredged spoil.
Oil pollution fund means the fund
established by section 311(k) of the
CWA.
On-scene coordinator (OSC) means
the federal official predesignated by
EPA or the USCG to coordinate and
direct federal responses under subpart
-------
Federal Register / Vol. 55. No. 46 / Thursday, March 8. 1990 / Rules and Regulations 8817
D, or the official designated by the lead
agency to coordinate and direct removal
actions under subpart E of the NCP.
Onshore facility as defined by section
101(18) of CERCLA, means any facility
(including, but not limited to, motor
vehicles and rolling stock) of any kind
located in, on, or under any land or non-
navigable waters within the United
States; and, as defined by section
311(a)(10) of the CWA, means any
facility (including, but not limited to,
motor vehicles and rolling stock) of any
kind located in, on, or under any land
within the United States other than
submerged land.
On-site means the areal extent of
contamination and all suitable areas in
very close proximity to the
contamination necessary for
implementation of the response action.
Operable unit means a discrete action
that comprises an incremental step
toward comprehensively addressing site
problems. This discrete portion of a
remedial response manages migration,
or eliminates or mitigates a release.
threat of a release, or pathway of
exposure. The cleanup of a site can be
divided into a number of operable units,
depending on the complexity of the
problems associated with the site.
Operable units may address
geographical portions of a site, specific
site problems, or initial phases of an
action, or may consist of any set of
actions performed over time or any
actions that are concurrent but located
in different parts of a site.
Operation and maintenance (O&M)
means measures required to maintain
the effectiveness of response actions.
Person as defined by section 101(21)
of CERCLA, means an individual, firm,
corporation, association, partnership,
consortium, joint venture, commercial
entity, United States government, state,
municipality, commission, political
subdivision of a state, or any interstate
body.
Pollutant or contaminant as defined
by section 101(33) of CERCLA, shall
include, but not be limited to, any
element, substance, compound, or
mixture, including disease-causing
agents, which after release into the
environment and upon exposure,
ingestion, inhalation, or assimilation
into any organism, either directly from
the environment or indirectly by
ingestion through food chains, will or
may reasonably be anticipated to cause
death, disease, behavioral
abnormalities, cancer, genetic mutation,
physiological malfunctions (including
malfunctions in reproduction) or
physical deformations, in such
organisms or their offspring. The term
does not include petroleum, including
crude oil or any fraction thereof which is
not otherwise specifically listed or
designated as a hazardous substance
under section 101(14) (A) through (F) of
CERCLA, nor does it include natural
gas, liquified natural gas, or synthetic
gas of pipeline quality (or mixtures of
natural gas and such synthetic gas). For
purposes of the NCP, the term pollutant
or contaminant means any pollutant or
contaminant that may present an
imminent and substantial danger to
public health or welfare.
Post-removal site control means those
activities that are necessary to sustain
the integrity of a Fund-financed removal
action following its conclusion. Post-
removal site control may be a removal
or remedial action under CERCLA. The
term includes, without being limited to,
activities such as relighting gas flares,
replacing filters, and collecting leachate.
Preliminary assessment (PA) means
review of existing information and an
off-site reconnaissance, if appropriate,
to determine if a release may require
additional investigation or action. A PA
may include an on-site reconnaissance,
if appropriate.
Public participation, see the definition
for community relations.
Public vessel as defined by section
311(a)(4) of the CWA, means a vessel
owned or bareboat-chartered and
operated by the United States, or by a
state or political subdivision thereof, or
by a foreign nation, except when such
vessel is engaged in commerce.
Quality assurance project plan
(QAPP) is a written document,
associated with all remedial site
sampling activities, which presents in
specific terms the organization (where
applicable), objectives, functional
activities, and specific quality assurance
(QA) and quality control (QC) activities
designed to achieve the data quality
objectives of a specific project(s) or
continuing operation(s). The QAPP is
prepared for each specific project or
continuing operation (or group of similar
projects or continuing operations). The
QAPP will be prepared by the
responsible program office, regional
office, laboratory, contractor, recipient
of an assistance agreement, or other
organization. For an enforcement action,
potentially responsible parties may
prepare a QAPP subject to lead agency
approval.
Release as defined by section 101(22]
of CERCLA, means any spilling, leaking,
pumping, pouring, emitting, emptying,
discharging, injecting, escaping,
leaching, dumping, or disposing into the
environment (including the
abandonment or discarding of barrels,
containers, and other closed receptacles
containing any hazardous substance or
pollutant or contaminant), but excludes:
Any release which results in exposure to
persons solely within a workplace, with
respect to a claim which such persons
may assert against the employer of such
persons; emissions from the engine
exhaust of a motor vehicle, rolling stock,
aircraft, vessel, or pipeline pumping
station engine; release of source,
byproduct, or special nuclear material
from a nuclear incident, as those terms
are defined in the Atomic Energy Act of
1954, if such release is subject to
requirements with respect to financial
protection established by the Nuclear
Regulatory Commission under section
170 of such Act, or, for the purposes of
section 104 of CERCLA or any other
response action, any release of source,
byproduct, or special nuclear material
from any processing site designated
under section 102(a)(l) or 302(a) of the
Uranium Mill Tailings Radiation Control
Act of 1978; and the normal application
of fertilizer. For purposes of the NCP,
release also means threat of release.
Relevant and appropriate
requirements means those cleanup
standards, standards of control, and
other substantive requirements, criteria,
or limitations promulgated under federa
environmental or state environmental o:
facility siting laws that, while not
"applicable" to a hazardous substance,
pollutant, contaminant, remedial action
location, or other circumstance at a
CERCLA site, address problems or
situations sufficiently similar to those
encountered at the CERCLA site that
their use is well suited to the particular
site. Only those state standards that an
identified in a timely manner and are
more stringent than federal
requirements may be relevant and
appropriate.
Remedial design (RD) means the
technical analysis and procedures whit
follow the selection of remedy for a siti
and result in a detailed set of plans am
specifications for implementation of th<
remedial action.
Remedial investigation (RI) is a
process undertaken by the lead agency
to determine the nature and extent of
the problem presented by the release.
The RI emphasizes data collection and
site characterization, and is generally
performed concurrently and in an
interactive fashion with the feasibility
study. The RI includes sampling and
monitoring, as necessary, and include!
the gathering of sufficient information
determine the necessity for remedial
action and to support the evaluation o
remedial alternatives.
Remedial project manager (RPM)
means the official designated by the
lead agency to coordinate, monitor, 01
-------
8818 Federal Register / Vol. 55. No. 46 / Thursday. March 8, 1990 / Rules and Regulations
direct remedial or other response
actions under subpart E of the NCP.
Remedy or remedial action (RA)
means those actions consistent with
permanent remedy taken instead of, or
in addition to, removal action in the
event of a release or threatened release
of a hazardous substance into the
environment, to prevent or minimize the
release of hazardous substances so that
they do not migrate to cause substantial
danger to present or future public health
or welfare or the environment. The term
includes, but is not limited to, such
actions at the location of the release as
storage, confinement, perimeter
protection using dikes, trenches, or
ditches, clay cover, neutralization,
cleanup of released hazardous
substances and associated
contaminated materials, recycling or
reuse, diversion, destruction,
segregation of reactive wastes, dredging
or excavations, repair or replacement of
leaking containers, collection of
leachate and runoff, on-site treatment or
incineration, provision of alternative
water supplies, any monitoring
reasonably required to assure that such
actions protect the public health and
welfare and the environment and, where
appropriate, post-removal site control
activities. The term includes the costs of
permanent relocation of residents and
businesses and community facilities
(including the cost of providing
"alternative land of equivalent value" to
an Indian tribe pursuant to CERCLA
section 126(b)) where EPA determines
that, alone or in combination with other
measures, such relocation is more cost-
effective than, and environmentally
preferable to, the transportation,
storage, treatment, destruction, or
secure disposition off-site of such
hazardous substances, or may otherwise
be necessary to protect the public health
or welfare; die term includes off-site
transport and off-site storage, treatment
destruction, or secure disposition of
hazardous substances and associated
contaminated materials. For the purpose
of the NCP, the term also includes
enforcement activities related thereto.
Remove or removal as defined by
section 311(a)(B) of the CWA, refers to
removal of oil or hazardous substances
from the water and shorelines or the
taking of such other actions as may be
necessary to minimize or mitigate
damage to the public health or welfare
or to the environment. As defined by
section 101(23) of CERCLA, remove or
removal means the cleanup or removal
of released hazardous substances from
the environment; such actions as may be
necessary taken in the event of the
threat of release of hazardous
substances into the environment; such
actions as may be necessary to monitor,
assess, and evaluate the release or
threat of release of hazardous
substances; the disposal of removed
material; or the taking of such other
actions as may be necessary to prevent,
minimize, or mitigate damage to the
public health or welfare or to the
environment, which may otherwise
result from a release or threat of release.
The term includes, in addition, without
being limited to, security fencing or
other measures to limit access, provision
of alternative water supplies, temporary
evacuation and housing of threatened
individuals not otherwise provided for,
action taken under section 104(b) of
CERCLA, post-removal site control,
where appropriate, and any emergency
assistance which may be provided
under the Disaster Relief Act of 1974.
For the purpose of the NCP, the term
also includes enforcement activities
related thereto.
Respond or response as defined by
section 101(25) of CERCLA. means
remove, removal, remedy, or remedial
action, including enforcement activities
related thereto.
SARA is the Superfund Amendments
and Reauthorization Act of 1986. In
addition to certain free-standing
provisions of law, it includes
amendments to CERCLA, the Solid
Waste Disposal Act, and the Internal
Revenue Code. Among the free-standing
provisions of law is Title HI of SARA,
also known as the "Emergency Planning
and Community Right-to-Know Act of
1986" and Title IV of SARA, also known
as the "Radon Gas and Indoor Air
Quality Research Act of 1988." Title V of
SARA amending the Internal Revenue
Code is also known as the "Superfund
Revenue Act of 1986."
Sinking agents means those additives
applied to oil discharges to sink floating
pollutants below the water surface.
Site inspection (SI) means an on-site
investigation to determine whether there
is a release or potential release and the
nature of the associated threats. The
purpose is to augment the data collected
in the preliminary assessment and to
generate, if necessary, sampling and
other Meld data to determine if further
action or investigation is appropriate.
Size classes of discharges refers to
the following size classes of oil
discharges which are provided as
guidance to the OSC and serve as the
criteria for the actions delineated in
subpart D. They are not meant to imply
associated degrees of hazard to public
health or welfare, nor are they a
measure of environmental injury. Any
oil discharge that poses a substantial
threat to public health or welfare or the
environment or results in significant
public concern shall be classified as a
major discharge regardless of the
following quantitative measures:
(a) Minor discharge means a
discharge to the inland waters of less
than 1,000 gallons of oil or a discharge to
the coastal waters of less than 10,000
gallons of oil.
(b) Medium discharge means a
discharge of 1,000 to 10,000 gallons of oil
to the inland waters or a discharge of
10,000 to 100,000 gallons of oil to the
coastal waters.
(c) Major discharge means a discharge
of more than 10,000 gallons of oil to the
inland waters or more than 100,000
gallons of oil to the coastal waters.
Size classes of releases refers to the
following size classifications which are
provided as guidance to the OSC for
meeting pollution reporting requirements
in subpart B. The final determination of
the appropriate classification of a
release will be made by the OSC based
on consideration of the particular
release (e.g., size, location, impact, etc.):
(a) Minor release means a release of a
quantity of hazardous substance(s),
pollutant(s), or contejninant(s) that
poses minimal threat to public health or
welfare or the environment.
(b) Medium release means a release
not meeting the criteria for classification
as a minor or major release.
(c) Major release means a release of
any quantity of hazardous 8ubstance(s),
pollutant(s), or contaminant(s) that
poses a substantial threat to public
health or welfare or the environment or
results in significant public concern.
Source control action is the
construction or installation and start-up
of those actions necessary to prevent
the continued release of hazardous
substances or pollutants or
contaminants (primarily from a source
on top of or within the ground, or in
buildings or other structures) into the
environment.
Source control maintenance measures
are those measures intended to maintain
the effectiveness of source control
actions once such actions are operating
and functioning properly, such as the
maintenance of landfill caps and
leachate collection systems.
Specified ports and harbors means
those ports and harbor areas on inland
rivers, and land areas immediately
adjacent to those waters, where the
USCG acts as predesignated on-scene
coordinator. Precise locations are
determined by EPA/USCG regional
agreements and identified in federal
regional contingency plans.
-------
Federal Register / Vol. 55, No. 46 / Thursday. March 8. 1990 / Rules and Regulations 8819
State means the several states of the
United States, the District of Columbia,
the Commonwealth of Puerto Rico,
Guam, American Samoa, the Virgin
Islands, the Commonwealth of Northern
Marianas, and any other territory or
possession over which the United States
has jurisdiction. For purposes of the
NCP, the term includes Indian tribes as
defined in the NCP except where
specifically noted. Section 126 of
CERCLA provides that the governing
body of an Indian tribe shall be afforded
substantially the same treatment as a
state with respect to certain provisions
of CERCLA. Section 300.515(b) of the
NCP describes the requirements
pertaining to Indian tribes that wish to
be treated as states.
Superfund Memorandum of
Agreement (SMOA) means a
nonbinding, written document executed
by an EPA Regional Administrator and
the head of a state agency that may
establish the nature and extent of EPA
and state interaction during the removal,
pre-remedial, remedial, and/or
enforcement response process. The
SMOA is not a site-specific document
although attachments may address
specific sites. The SMOA generally
defines the role and responsibilities of
both the lead and the support agencies.
Superfund state contract is a joint,
legally binding agreement between EPA
and a state to obtain the necessary
assurances before a federal-lead
remedial action can begin at a site. In
the case of a political subdivision-lead
remedial response, a three-party
Superfund state contract among EPA,
the state, and political subdivision
thereof, is required before a political
subdivision takes the lead for any phase
of remedial response to ensure state
involvement pursuant to section 121(f)(l)
of CERCLA. The Superfund state
contract may be amended to provide the
state's CERCLA section 104 assurances
before a political subdivision can take
the lead for remedial action.
Support agency means the agency or
agencies that provide the support
agency coordinator to furnish necessary
data to the lead agency, review
response data and documents, and
provide other assistance as requested by
the OSC or RPM. EPA, the USCG,
another federal agency, or a state may
be support agencies for a response
action if operating pursuant to a
contract executed under section
104(d)(l) of CERCLA or designated
pursuant to a Superfund Memorandum
of Agreement entered into pursuant to
subpart F of the NCP or other
agreement. The support agency may also
concur on decision documents.
Support agency coordinator (SAC)
means the official designated by the
support agency, as appropriate, to
interact and coordinate with the lead
agency in response actions under
subpart E of this part.
Surface collecting agents means those
chemical agents that form a surface film
to control the layer thickness of oil.
Threat of discharge or release, see
definitions for discharge and release.
Threat of release, see definition for
release.
Treatment technology means any unit
operation or series of unit operations
that alters the composition of a
hazardous substance or pollutant or
contaminant through chemical,
biological, or physical means so as to
reduce toxicity, mobility, or volume of
the contaminated materials being
treated. Treatment technologies are an
alternative to land disposal of
hazardous wastes without treatment.
Trustee means an official of a federal
natural resources management agency
designated in subpart G of the NCP or a
designated state official or Indian tribe
who may pursue claims for damages
under section 107(f) of CERCLA.
United States when used in relation to
section 311(a)(5) of the CWA, means the
states, the District of Columbia, the
Commonwealth of Puerto Rico, the
Northern Mariana Islands, Guam,
American Samoa, the United States
Virgin Islands, and the Pacific Island
Governments. United States, when used
in relation to section 101{27) of CERCLA,
includes the several states of the United
States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam,
American Samoa, the United States
Virgin Islands, the Commonwealth of
the Northern Marianas, and any other
territory or possession over which the
United States has jurisdiction.
Vessel as defined by section 101(28)
of CERCLA, means every description of
watercraft or other artificial contrivance
used, or capable of being used, as a
means of transportation on water, and,
as defined by section 311(a)(3) of the
CWA, means every description of
watercraft or other artificial contrivance
used, or capable of being used, as a
means of transportation on water other
than a public vessel.
Volunteer means any individual
accepted to perform services by the lead
agency which has authority to accept
volunteer services (examples: See 16
U.S.C. 742f(c)}. A volunteer is subject to
the provisions of the authorizing statute
and the NCP.
{ 300.6 UM of numtMr and gender.
As used in this regulation, words in
the singular also include the plural and
words in the masculine gender also
include the feminine and vice versa, as
the case may require.
§300.7 Computation of time.
In computing any period of time
prescribed or allowed in these rules of
practice, except as otherwise provided,
the day of the event from which the
designated period begins to run shall not
be included. Saturdays, Sundays, and
federal legal holidays shall be included.
When a stated time expires on a
Saturday, Sunday, or legal holiday, the
stated time period shall be extended to
include the next business day.
Subpart B—Responsibility and
Organization for Response
§300.100 Duties of President delegated to
federal agencies.
In Executive Order 11735 and
Executive Order 12560, the President
delegated certain functions and
responsibilities vested in him by the
CWA and CERCLA, respectively.
§ 300.105 General organization concepts.
(a) Federal agencies should:
(1) Plan for emergencies and develop
procedures for addressing oil discharge)
and releases of hazardous substances,
pollutants, or contaminants;
(2) Coordinate their planning,
preparedness, and response activities
with one another;
(3) Coordinate their planning,
preparedness, and response activities
with affected states and local
governments and private entities; and
(4] Make available those facilities or
resources that may be useful in a
response situation, consistent with
agency authorities and capabilities.
(b) Three fundamental kinds of
activities are performed pursuant to th<
NCP:
(1) Preparedness planning and
coordination for response to a discharg
of oil or release of a hazardous
substance, pollutant, or contaminant;
(2) Notification and communications
and
(3) Response operations at the scene
of a discharge or release.
(c) The organizational elements
created to perform these activities are:
(1) The National Response Team
(NRT), responsible for national respon
and preparedness planning, for
coordinating regional planning, and fo
providing policy guidance and support
to the Regional Response Teams. NRT
membership consists of representative
from the agencies specified in { 300.17
(2) Regional Response Teams (RRTt
responsible for regional planning and
preparedness activities before respon
-------
8820
Federal Register / Vol. 55. No. 46 / Thursday, March 8, 1990 / Rules and Regulations
actions, and for providing advice and together with state and (as agreed upon The other responsibilities of OSCs and
support to the on-scene coordinator by the states) local government RPMs are described in S 300.135.
(OSC) or remedial project manager representatives. (d)(l) The organizational concepts of
(RPM) when activated during a (3) The OSC and the RPM. primarily the national response system are
response. RRT membership consists of responsible for directing response depicted in the following Figure 1:
designated representatives from each efforts and coordinating all other efforts BUJJNG CODE WCO-SO-M
federal agency participating in the NRT at the scene of a discharge or release.
-------
8821
Figure 1
National Response System Concepts
notification
Discharge or
Release Incident
f UJ I
NRC * f
§300.125 w 1
V
^^^^l Lo
cal Responders planning & preparedness LEPCS
§300.180 "~ §300.205
^^^^^l su
»te Responders planning & preparedness SERCs
§300.180 §300.205
notmca^n Federal OSC/RPM response support Special Teams
§300.120
%
o
1 1
O> O-
s. §-
«8 W
| 1
n w
a £
RRT
§§300.1
and 300.
%
a>
C C
S 8:
I !
&- $
•9 g
E> §-
c £
a
a
policy guidance NRT
§§300.1
and 300.:
f/
//
7
15 /
205 V>
r- ^
x<^
\
/'
10
205
§300.145
|
NSF ERT SSC RAT PIAT
State Government
§300.180
I
Local Government
§300.180
DOD DOI DOC USDA
I I I
EPA USCG " RSPA
Participating Federal Agencies* _ NUC. REG.
§5300. 1 70 & 300. 175 ~ COMM.
FEMA DOJ - HHS
I
DOL DOE DOS
The same federal agencies participate on both the National Response Team (NRT)
and the Regional Response Team (RRT). Federal agencies on the RRT are
represented by regional staff. Abbreviations used in this figure are explained
in §300.4.
-------
RR2.Z
° Federal Register / Vol. 55. No. 46 / Thursday, March 8, 1990 / Rules and Regulations
(2] The standard federal regional the Regional Response Teams) are
boundaries (which are also the shown in the following Figure 2:
geographic areas of responsibility for BILLING CODE CSCO-SO-M
-------
Federal Register / Vol. 55, No. 40 / Thursday, March 8,1990 / Rules and Regulations
8823
-------
8824
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
(3) The USCG District boundaries are
shown in the following Figure 3:
BILLING CODE SKO-SO-M
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8825
-------
8826
Federal Register / Vol. 55. No. 46 / Thursday, March 6. 1990 / Rules and Regulations
{300.110 National Response Team.
National planning and coordination is
accomplished through the National
Response Team (NRT).
(a) The NRT consists of
representatives from the agencies
named in § 300.175. Each agency shall
designate a member to the team and
sufficient alternates to ensure
representation, as agency resources
permit. The NRT will consider requests
for membership on the NRT from other
agencies. Other agencies may request
membership by forwarding such
requests to the chair of the NRT.
(b) The chair of the NRT shall be the
representative of EPA and the vice chair
shall be the representative of the USCG,
with the exception of periods of
activation because of response action.
During activation, the chair shall be the
member agency providing the OSC/
RPM. The vice chair shall maintain
records of NRT activities along with
national, regional, and OSC plans for
response actions.
(c) While the NRT desires to achieve a
consensus on all matters brought before
it, certain matters may prove
unresolvable by this means. In such
cases, each agency serving as a
participating agency on the NRT may be
accorded one vote in NRT proceedings.
(dj The NRT may establish such
bylaws and committees as it deems
appropriate to further the purposes for
which it is established.
(e) The NRT shall evaluate methods of
responding to discharges or releases,
shall recommend any changes needed in
the response organization, and may
recommend revisions to the NCP.
(f) The NRT shall provide policy and
program direction to the RRTs.
(g) The NRT may consider and make
recommendations to appropriate
agencies on the training, equipping, and
protection of response teams and
necessary research, development,
demonstration, and evaluation to
improve response capabilities.
(h) Direct planning and preparedness
responsibilities of the NRT include:
(1) Maintaining national preparedness
to respond to a major discharge of oil or
release of a hazardous substance,
pollutant, or contaminant that is beyond
regional capabilities;
(2) Publishing guidance documents for
preparation and implementation of
SARA Title III local emergency response
plans;
(3) Monitoring incoming reports from
all RRTs and activating for a response
action, when necessary;
(4) Coordinating a national program to
assist member agencies in preparedness
planning and response, and enhancing
coordination of member agency
preparedness programs;
(5) Developing procedures to ensure
the coordination of federal, state, and
local governments, and private response
to oil discharges and releases of
hazardous substances, pollutants, or
contaminants;
(6) Monitoring response-related
research and development, testing, and
evaluation activities of NRT agencies to
enhance coordination and avoid
duplication of effort;
(7) Developing recommendations for
response training and for enhancing the
coordination of available resources
among agencies with training
responsibilities under the NCP; and
(8) Reviewing regional responses to oil
discharges and hazardous substance,
pollutant, or contaminant releases,
including an evaluation of equipment
readiness and coordination among
responsible public agencies and private
organizations.
(i) The NRT will consider matters
referred to it for advice or resolution by
anRRT.
(j) The NRT should be activated as an
emergency response team:
(1) When an oil discharge or
hazardous substance release:
(i) Exceeds the response capability of
the region in which it occurs;
(ii) Transects regional boundaries; or
(iii) Involves a significant threat to
public health or welfare or the
environment, substantial amounts of
property, or substantial threats to
natural resources; or
(2) If requested by any NRT member.
(k) When activated for a response
action, the NRT shall meet at the call of
the chair and may:
(1) Monitor and evaluate reports from
the OSC/RPM and recommend to the
OSC/RPM, through the RRT, actions to
combat the discharge or release;
(2) Request other federal, state, and
local governments, or private agencies,
to provide resources under their existing
authorities to combat a discharge or
release, or to monitor response
operations; and
(3) Coordinate the supply of
equipment, personnel, or technical
advice to the affected region from other
regions or districts.
§300.115 Regional Response Teams.
(a) Regional planning and
coordination of preparedness and
response actions is accomplished
through the RRT. The RRT agency
membership parallels that of the NRT,
as described in { 300.110. but also
includes state and local representation.
The RRT provides the appropriate
regional mechanism for development
and coordination of preparedness
activities before a response action is
taken and for coordination of assistance
and advice to the OSC/RPM during such
response actions.
(b) The two principal components of
the RRT mechanism are a standing
team, which consists of designated
representatives from each paiticipating
federal agency, state governments, and
local governments (as agreed upon by
the states); and incident-specific teams
formed from the standing team when the
RRT is activated for a response. On
incident-specific teams, participation by
the RRT member agencies will relate to
the technical nature of the incident and
its geographic location.
(1) The standing team's jurisdiction
corresponds to the standard federal
regions, except for Alaska, Oceania in
the Pacific, and the Caribbean area,
each of which has a separate standing
RRT. The role of the standing RRT
includes communications systems and
procedures, planning, coordination,
training, evaluation, preparedness, and
related matters on a regionwide basis. •
(2) The role of the incident-specific
team is determined by the operational
requirements of the response to a
specific discharge or release.
Appropriate levels of activation and/or
notification of the incident-specific RRT,
including participation by state and
local governments, shall be determined
by the designated RRT chair for the
incident, based on the Regional
Contingency Plan (RCP). The incident-
specific RRT supports the designated
OSC/RPM. The designated OSC/RPM
directs response efforts and coordinates
all other efforts at the scene of a
discharge or release.
(c) The representatives of EPA and
the USCG shall act as co-chairs of RRTs
except when the RRT is activated.
When the RRT is activated for response
actions, the chair shall be the member
agency providing the OSC/RPM.
(d) Each participating agency should
designate one member and at least one
alternate member to the RRT. Agencies
whose regional subdivisions do not
correspond to the standard federal
regions may designate additional
representatives to the standing RRT to
ensure appropriate coverage of the
standard federal region. Participating
states may also designate one member
and at least one alternate member to the
RRT. Indian tribal governments may
arrange for representation with the RRT
appropriate to their geographical
location. All agencies and states may
also provide additional representatives
as observers to meetings of the RRT.
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations 8827
(e) RRT members should designate
representatives and alternates from
their agencies as resource personnel for
RRT activities, including RRT work
planning, and membership on incident-
specific teams in support of the OSCs/
RPMs.
(f) Federal RRT members or their
representatives should provide OSCs/
RPMs with assistance from their
respective federal agencies
commensurate with agency
responsibilities, resources, and
capabilities within the region. During a
response action, the members of the
RRT should seek to make available the
resources of their agencies to the OSC/
RPM as specified in the RCP and OSC
contingency plan.
(g) RRT members should designate
appropriately qualified representatives
from their agencies to work with OSCs
in developing and maintaining OSC
contingency plans, described in
$ 300.210, that provide for use of agency
resources in responding to discharges
and releases.
(h) Affected states are encouraged to
participate actively in all RRT activities.
Each state governor is requested to
assign an office or agency to represent
the state on the appropriate RRT; to
designate representatives to work with
the RRT and OSCs in developing RCPs
and OSC contingency plans; to plan for,
make available, and coordinate state
resources; and to serve as the contact
point for coordination of response with
local government agencies, whether or
not represented on the RRT. The state's
RRT representative should keep the
State Emergency Response Commission
(SERC), described in § 300.205(c).
apprised of RRT activities and
coordinate RRT activities with the
SERC. Local governments and Indian
tribes are invited to participate in
activities on the appropriate RRT as
provided by state law or as arranged by
the state's representative.
(i) The standing RRT shall recommend
changes in the regional response
organization as needed, revise the RCP
as needed, evaluate the preparedness of
the participating agencies and the
effectiveness of OSC contingency plans
for the federal response to discharges
and releases, and provide technical
assistance for preparedness to the
response community. The RRT should:
(1) Review and comment, to the extent
practicable, on local emergency
response plans or other issues related to
the preparation, implementation, or
exercise of such plans upon request of a
local emergency planning committee;
(2) Evaluate regional and local
responses to discharges or releases on a
continuing basis, considering available
legal remedies, equipment readiness,
and coordination among responsible
public agencies and private
organizations, and recommend
improvements;
(3) Recommend revisions of the NCP
to the NRT. based on observations of
response operations;
(4) Review OSC actions to ensure that
RCPs and OSC contingency plans are
effective;
(5) Encourage the state and local
response community to improve its
preparedness for response;
(6) Conduct advance planning for use
of dispersants, surface collection agents,
burning agents, biological additives, or
other chemical agents in accordance
with subpart J of this part;
(7) Be prepared to provide response
resources to major discharges or
releases outside the region;
(8) Conduct or participate in training
and exercises as necessary to encourage
preparedness activities of the response
community within the region;
(9] Meet at least semiannually to
review response actions carried out
during the preceding period and
consider changes in RCPs and OSC
contingency plans; and
(10) Provide letter reports on RRT
activities to the NRT twice a year, no
later than January 31 and July 31. At a
minimum, reports should summarize
recent activities, organizational changes,
operational concerns, and efforts to
improve state and local coordination.
(j)(l) The RRT may be activated by
the chair as an incident-specific
response team when a discharge or
release:
(i) Exceeds the response capability
available to the OSC/RPM in the place
where it occurs;
(ii) Transects state boundaries; or
(iii) May pose a substantial threat to
the public health or welfare or the
environment, or to regionally significant
amounts of property. RCPs shall specify
detailed criteria for activation of RRTs.
(2) The RRT will be activated during
any discharge or release upon a request
from the OSC/RPM, or from any RRT
representative, to the chair of the RRT.
Requests for RRT activation shall later
be confirmed in writing. Each
representative, or an appropriate
alternate, should be notified
immediately when the RRT is activated.
(3) During prolonged removal or
remedial action, the RRT may not need
to be activated or may need to be
activated only in a limited sense, or may
need to have available only those
member agencies of the RRT who are
directly affected or who can provide
direct response assistance.
(4) When the RRT is activated for a
discharge or release, agency
representatives shall meet at the call of
the chair and may:
(i] Monitor and evaluate reports from
the OSC/RPM, advise the OSC/RPM on
the duration and extent of response, and
recommend to the OSC/RPM specific
actions to respond to the discharge or
release;
(ii) Request other federal, state, or
local governments, or private agencies,
to provide resources under their existing
authorities to respond to a discharge or
release or to monitor response
operations;
(iii) Help the OSC/RPM prepare
information releases for the public and
for communication with the NRT;
(iv) If the circumstances warrant,
make recommendations to the regional
or district head of the agency providing
the OSC/RPM that a different OSC/
RPM should be designated; and
(v) Submit pollution reports to the
NRC as significant developments occur.
(5) At the regional level, a Regional
Response Center (RRC) may provide
facilities and personnel for
communications, information storage,
and other requirements for coordinating
response. The location of each RRC
should be provided in the RCP.
(6) When the RRT is activated,
affected states may participate in all
RRT deliberations. State government
representatives participating in the RRT
have the same status as any federal
member of the RRT.
(7) The RRT can be deactivated when
the incident-specific RRT chair
determines that the OSC/RPM no longer
requires RRT assistance.
(8) Notification of the RRT may be
appropriate when full activation is not
necessary, with systematic
communication of pollution reports or
other means to keep RRT members
informed as to actions of potential
concern to a particular agency, or to
assist in later RRT evaluation of
regionwide response effectiveness.
(k) Whenever there is insufficient
national policy guidance on a matter
before the RRT, a technical matter
requiring solution, or a question
concerning interpretation of the NCP, 01
there is a disagreement on disctetionari
actions among RRT members that
cannot be resolved at the regional level
it may be referred to the NRT, describe
in § 300.110, for advice.
{ 300.120 On-ecene coordinator* and
remedial project managers: general
responsibilities.
(a) The OSC/RPM directs response
efforts and coordinates all other effort!
-------
8828 federal Register / Vol. 55, No. 46 / Thursday, March 8. 1990 / Rules and Regulations
at the scene of a discharge or release.
As part of the planning and
preparedness for response, OSCs shall
be predesignated by the regional or
district head of the lead agency. EPA
and the USCG shall predesignate OSCs
for all areas in each region, except as
provided in paragraphs (b) and (c) of
this section. RPMs shall be assigned by
the lead agency to manage remedial or
other response actions at NPL sites,
except as provided in paragraphs (b)
and (c) of this section.
(1) The USCG shall provide OSCs for
oil discharges, including discharges from
facilities and vessels under the
jurisdiction of another federal agency,
within or threatening the coastal zone.
The USCG shall also provide OSCs for
the removal of releases of hazardous
substances, pollutants, or contaminants
into or threatening the coastal zone,
except as provided in paragraph (b) of
this section. The USCG shall not provide
predesignated OSCs for discharges or
releases from hazardous waste
management facilities or in similarly
chronic incidents. The USCG shall
provide an initial response to discharges
or releases from hazardous waste
management facilities within the coastal
zone in accordance with DOT/EPA
Instrument of Redelegation (May 27,
1988) except as provided by paragraph
(b) of this section. The USCG OSC shall
contact the cognizant RPM as soon as it
is evident that a removal may require a
follow-up remedial action, to ensure that
the required planning can be initiated
and an orderly transition to an EPA or
state lead can occur.
(2) EPA shall provide OSCs for
discharges or releases into or
threatening the inland zone and shall
provide RPMs for federally funded
remedial actions, except in the case of
state-lead federally funded response
and as provided in paragraph (b) of this
section. EPA will also assume all
remedial actions at NPL sites in the
coastal zone, even where removals are
initiated by the USCG. except as
provided in paragraph (b) of this section.
(b) For releases of hazardous
substances, pollutants, or contaminants,
when the release is on, or the sole
source of the release is from, any facility
or vessel, including vessels bareboat-
chartered and operated, under the
jurisdiction, custody, or control of DOD,
DOE, or other federal agency:
(1) In the case of DOD or DOE. DOD
or DOE shall provide OSCs/RPMs
responsible for taking all response
actions; and
(2) In the case of a federal agency
other than EPA. DOD. or DOE, such
agency shall provide OSCs for all
removal actions that are not
emergencies and shall provide RPMs for
all remedial actions.
(c) DOD will be the removal response
authority with respect to incidents
involving DOD military weapons and
munitions or weapons and munitions
under the jurisdiction, custody, or
control of DOD.
(d) The OSC is responsible for
developing any OSC contingency plans
for the federal response in the area of
the OSC's responsibility. The planning
shall, as appropriate, be accomplished
in cooperation with the RRT, described
in § 300.115, and designated state and
Jocal representatives. The OSC
coordinates, directs, and reviews the
work of other agencies, responsible
parties, and contractors to assure
compliance with the NCP, decision
document, consent decree,
administrative order, and, lead agency-
approved plans applicable to the
response.
(e) The RPM is the prime contact for
remedial or other response actions being
taken (or needed) at sites on the
proposed or promulgated NPL, and for
sites not on the NPL but under the
jurisdiction, custody, or control of a
federal agency. The RPM's
responsibilities include:
(1) Fund-financed response: The RPM
coordinates, directs, and reviews the
work of EPA, states and local
governments, the U.S. Army Corps of
Engineers, and all other agencies and
contractors to assure compliance with
the NCP. Based upon the reports of
these parties, the RPM recommends
action for decisions by lead-agency
officials. The RPM's period of
responsibility begins prior to initiation
of the remedial investigation/feasibility
study (RI/FS), described in § 300.430,
and continues through design, remedial
action, deletion of the site from the NPL,
and the CERCLA cost recovery activity.
When a removal and remedial action
occur at the same site, the OSC and
RPM should coordinate to ensure an
orderly transition of responsibility.
(2) Federal-lead non-Fund-financed
response: The RPM coordinates, directs,
and reviews the work of other agencies,
responsible parties, and contractors to
assure compliance with the NCP, ROD,
consent decree, administrative order,
and lead agency-approved plans
applicable to the response. Based upon
the reports of these parties, the RPM
shall recommend action for decisions by
lead agency officials. The RPM's period
of responsibility begins prior to
initiation of the RI/FS, described in
S 300.430, and continues through design
and remedial action and the CERCLA
cost recovery activity. The OSC and
RPM shall ensure orderly transition of
responsibilities from one to the other.
(3) The RPM shall participate in all
decision-making processes necessary to
ensure compliance with the NCP,
including, as appropriate, agreements
between EPA or other federal agencies
and the state. The RPM may also review
responses where EPA has preauthorized
a person to file a claim for
reimbursement to determine that the
response was consistent with the terms
of such preauthorization in cases where
claims are filed for reimbursement.
(f)(l) Where a support agency has
been identified through a cooperative
agreement, SMOA, or other agreement,
that agency may designate a support
agency coordinator (SAC) to provide
assistance, as requested, by the OSC/
RPM. The SAC is the prime
representative of the support agency for
response actions.
(2) The SAC's responsibilities may
include:
(i) Providing and reviewing data and
documents as requested by the OSC/
RPM during the planning, design, and
cleanup activities of the response action;
and
(ii) Providing other assistance as
requested.
(g)(l) The lead agency should provide
appropriate training for its OSCs, RPMs.
and other response personnel to carry
out their responsibilities under the NCP.
(2) OSCs/RPMs should ensure that
persons designated to act as their on-
scene representatives are adequately
trained and prepared to carry out
actions under the NCP, to the extent
practicable.
(300.125 Notification and
communication*.
(a) The National Response Center
(NRC). located at USCG Headquarters,
is the national communications center,
continuously manned for handling
activities related to response actions.
The NRC acts as the single point of
contact for all pollution incident
reporting, and as the NRT
communications center. Notice of
discharges must be made telephonically
through a toll free number or a special
local number (Telecommunication
Device for the Deaf (TDD) and collect
calls accepted). (Notification details
appear in J 5 300.300 and 300.405.) The
NRC receives and immediately relays
telephone notices of discharges or
releases to the appropriate
predesignated federal OSC. The
telephone report is distributed to any
interested NRT member agency or
federal entity that has established a
written agreement or understanding
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 6. 1990 / Rules and Regulations
8829
with the NRC. The NRC evaluates
incoming information and immediately
advises FEMA of a potential major
disaster or evacuation situation.
(b) The Commandant, USCG, in
conjunction with other NRT agencies,
shall provide the necessary personnel,
communications, plotting facilities, and
equipment for the NRC.
(c) Notice of an oil discharge or
release of a hazardous substance in an
amount equal to or greater than the
reportable quantity must be made
immediately in accordance with 33 CFR
part 153, subpart B, and 40 CFR part 302,
respectively. Notification shall be made
to the NRC Duty Officer. HQ USCG.
Washington, DC, telephone (800) 424-
8802 or (202) 267-2675. All notices of
discharges or releases received at the
NRC will be relayed immediately by
telephone to the OSC.
§300.130 Determination* to initiate
response and special conditions.
(a) In accordance with CWA and
CERCLA, the Administrator of EPA or
the Secretary of the Department in
which the USCG is operating, as
appropriate, is authorized to act for the
United States to take response measures
deemed necessary to protect the public
health or welfare or environment from
discharges of oil or releases of
hazardous substances, pollutants, or
contaminants except with respect to
such releases on or from vessels or
facilities under the jurisdiction, custody,
or control of other federal agencies.
(b) The Administrator of EPA or the
Secretary of the Department in which
the USCG is operating, as appropriate, is
authorized to initiate appropriate
response activities when the
Administrator or Secretary determines
that:
(1) Any oil is discharged from any
vessel or offshore or onshore facility
into or upon the navigable waters of the
United States, adjoining shorelines, or
into or upon the waters of the
contiguous zone, or in connection with
activities under the Outer Continental
Shelf Lands Act or the Deepwater Port
Act of 1974. or which may affect natural
resources belonging to, appertaining to,
or under exclusive management
authority of the United States;
(2) Any hazardous substance is
released or there is a threat of such a
release into the environment, or there is
a release or threat of release into the
environment of any pollutant or
contaminant which may present an
imminent and substantial danger to the
public health or welfare; or
(3) A marine disaster in or upon the
navigable waters of the United States
has created a substantial threat of a
pollution hazard to the public health or
welfare because of a discharge or
release, or an imminent discharge or
release, from a vessel of large quantities
of oil or hazardous substances
designated pursuant to section
311(b)(2)(A) of the CWA.
(c) Whenever there is such a marine
disaster, the Administrator of EPA or
Secretary of the Department in which
the USCG is operating may:
(1) Coordinate and direct all public
and private efforts to abate the threat;
and
(2) Summarily remove and, if
necessary, destroy the vessel by
whatever means are available without
regard to any provisions of law
governing the employment of personnel
or the expenditure of appropriated
funds.
(d) In addition to any actions taken by
a state or local government, the
Administrator of EPA or the Secretary of
the Department in which the USCG is
operating may request the U.S. Attorney
General to secure the relief necessary to
abate a threat if the Administrator or
Secretary determines:
(1) That there is an imminent and
substantial threat to the public health or
welfare or the environment because of
discharge of oil from any offshore or
onshore facility into or upon the
navigable waters of the United States;
or
(2) That there may be an imminent
and substantial endangerment to the
public health or welfare or the
environment because of a release of a
hazardous substance from a facility.
(e) Response actions to remove
discharges originating from operations
conducted subject to the Outer
Continental Shelf Lands Act shall be in
accordance with the NCP.
(f) Where appropriate, when a
discharge or release involves
radioactive materials, the lead or
support federal agency shall act
consistent with the notification and
assistance procedures described in the
appropriate Federal Radiological Plan.
For the purpose of the NCP, the Federal
Radiological Emergency Response Plan
(FRERP) (50 FR 46542, November 8,1985)
is the appropriate plan.
(g) Removal actions involving nuclear
weapons should be conducted in
accordance with the joint Department of
Defense, Department of Energy, and
Federal Emergency Management
Agency Agreement for Response to
Nuclear Incidents and Nuclear Weapons
Significant Incidents (January 8,1961).
(h) If the situation is beyond the
capability of state and local
governments and the statutory authority
of federal agencies, the President may,
under the Disaster Relief Act of 1974, act
upon a request by the governor and
declare a major disaster or emergency
and appoint a Federal Coordinating
Officer (FCO) to coordinate all federal
disaster assistance activities. In such
cases, the OSC/RPM would continue to
carry out OSC/RPM responsibilities
under the NCP, but would coordinate
those activities with the FCO to ensure
consistency with other federal disaster
assistance activities.
§ 300.135 Response operations.
(a) The OSC/RPM, consistent with
S§ 300.120 and 300.125, shall direct
response efforts and coordinate all other
efforts at the scene of a discharge or
release. As part of the planning and
preparation for response, the OSCs/
RPMs shall be predesignated by the
regional or district head of the lead
agency.
(b) The first federal official affiliated
with an NRT member agency to arrive at
the scene of a discharge or release
should coordinate activities under the
NCP and is authorized to initiate, in
consultation with the OSC, any
necessary actions normally carried out
by the OSC until the arrival of the
predesignated OSC. This official may
initiate federal Fund-financed actions
only as authorized by the OSC or. if the
OSC is unavailable, the authorized
representative of the lead agency.
(c) The OSC/RPM shall, to the extent
practicable, collect pertinent facts aboul
the discharge or release, such as its
source and cause; the identification of
potentially responsible parties; the
nature, amount, and location of
discharged or released materials; the
probable direction and time of travel of
discharged or released materials; the
pathways to human and environmental
exposure; the potential impact on huma
health, welfare, and safety and the
environment; the potential impact on
natural resources and property which
may be affected; priorities for protectin
human health and welfare and the
environment; and appropriate cost
documentation.
(d) The OSCs/RPM's efforts shall be
coordinated with other appropriate
federal, state, local, and private
response agencies. OSCs/RPMs may
designate capable persons from federa
state, or local agencies to act as their
on-scene representatives. State and
local governments, however, are not
authorized to take actions under
subparts D and E of the NCP that
involve expenditures of CWA section
311(k) or CERCLA funds unless an
appropriate contract or cooperative
agreement has been established.
-------
8830
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
(e) The OSC/RPM should consult
regularly with the RRT in carrying out
the NCP and keep the RRT informed of
activities under the NCP.
(f) The OSC/RPM shall advise the
support agency as promptly as possible
of reported releases.
(g) The OSC/RPM shall immediately
notify FEMA of situations potentially
requiring evacuation, temporary
housing, or permanent relocation. In
addition, the OSC/RPM shall evaluate
incoming information and immediately
advise FEMA of potential major disaster
situations.
(h) In those instances where a
possible public health emergency exists,
the OSC/RPM should notify the HHS
representative to the RRT. Throughout
response actions, the OSC/RPM may
call upon the HHS representative for
assistance in determining public health
threats and call upon the Occupational
Safety and Health Administration
(OSHA) and HHS for advice on worker
health and safety problems.
(i) All federal agencies should plan for
emergencies and develop procedures for
dealing with oil discharges and releases
of hazardous substances, pollutants, or
contaminants from vessels and facilities
under their jurisdiction. All federal
agencies, therefore, are responsible for
designating the office that coordinates
response to such incidents in
accordance with the NCP and applicable
federal regulations and guidelines.
(j) The OSC/RPM shall promptly
notify the trustees for natural resources
of discharges or releases that are
injuring or may injure natural resources
under their jurisdiction. The OSC or
RPM shall seek to coordinate all
response activities with the natural
resource trustees.
(k) Where the OSC/RPM becomes
aware that a discharge or release may
adversely affect any endangered or
threatened species, or result in
destruction or adverse modification of
the habitat of such species, the OSC/
RPM should consult with the DOI or
DOC (NOAA).
(1) The OSC/RPM is responsible for
addressing worker health and safety
concerns at a response scene, in
accordance with § 300.150.
(m) The OSC shall submit pollution
reports to the RRT and other
appropriate agencies as significant
developments occur during response
actions, through communications
networks or procedures agreed to by the
RRT and covered in the RCP.
(n) OSCs/RPMs should ensure that all
appropriate public and private interests
are kept informed and that their
concerns are considered throughout a
response, to the extent practicable.
consistent with the requirements of
§ 300.155 of this part.
§ 300.140 Mum-regional responses.
(a) If a discharge or release moves
from the area covered by one RCP or
OSC contingency plan into another area,
the authority for response actions
should likewise shift. If a discharge or
release affects areas covered by two or
more RCPs, the response mechanisms of
both may be activated. In this case,
response actions of all regions
concerned shall be fully coordinated as
detailed in the RCPs.
(b) There shall be only one OSC and/
or RPM at any time during the course of
a response operation. Should a
discharge or release affect two or more
areas. EPA, the USCG. DOD. DOE, or
other lead agency, as appropriate, shall
give prime consideration to the area
vulnerable to the greatest threat, in
determining which agency should
provide the OSC and/or RPM. The RRT
shall designate the OSC and/or RPM if
the RRT member agencies who have
response authority within the affected
areas are unable to agree on the
designation. The NRT shall designate
the OSC and/or RPM if members of one
RRT or two adjacent RRTs are unable to
agree on the designation.
(c) Where the USCG has initially
provided the OSC for response to a
release from hazardous waste
management facilities located in the
coastal zone, responsibility for response
action shall shift to EPA or another
federal agency, as appropriate.
§300.145 Special teams and other
assistance available to OSCs/RPMs.
(a) Strike Teams, collectively known
as the National Strike Force (NSFJ, are
established by the USCG on the Pacific
coast and Gulf coast (covering the
Atlantic and Gulf coast regions), to
provide assistance to the OSC/RPM.
(1) Strike Teams can provide
communications support, advice, and
assistance for oil and hazardous
substances removal. These teams also
have knowledge of shipboard damage
control, are equipped with specialized
containment and removal equipment,
and have rapid transportation available.
When possible, the Strike Teams will
provide training for emergency task
forces to support OSCs/RPMs and assist
in the development of RCPs and OSC
contingency plans.
(2) The OSC/RPM may request
assistance from the Strike Teams.
Requests for a team may be made
directly to the Commanding Officer of
the appropriate team, the USCG member
of the RRT. the appropriate USCG Area
Commander, or the Commandant of the
USCG through the NRC.
(b) Each USCG OSC manages
emergency task forces trained to
evaluate, monitor, and supervise
pollution responses. Additionally, they
have limited "initial aid" response
capability to deploy equipment prior to
the arrival of a cleanup contractor or
other response personnel.
(c)(l) The Environmental Response
Team (ERT) is established by EPA in
accordance with its disaster and
emergency responsibilities. The ERT has
expertise in treatment technology,
biology, chemistry, hydrology, geology,
and engineering.
(2) The ERT can provide access to
special decontamination equipment for
chemical releases and advice to the
OSC/RPM in hazard evaluation; risk
assessment; multimedia sampling and
analysis program; on-site safety,
including development and
implementation plans; cleanup
techniques and priorities; water supply
decontamination and protection;
application of dispersants;
environmental assessment* degree of
cleanup required; and disposal of
contaminated material.
(3) The ERT also provides both
introductory and intermediate level
training courses to prepare response
personnel.
(4) OSC/RPM or RRT requests for
ERT support should be made to the EPA
representative on the RRT; EPA
Headquarters, Director, Emergency
Response Division; or the appropriate
EPA regional emergency coordinator.
(d) Scientific support coordinators
(SSCs) are available, at the request of
OSCs/RPMs, to assist with actual or
potential responses to discharges of oil
or releases of hazardous substances,
pollutants, or contaminants. The SSC
will also provide scientific support for
the development of RCPs and OSC
contingency plans. Generally, SSCs are
provided by NOAA in coastal and
marine areas, and by EPA in inland
regions. In the case of NOAA, SSCs may
be supported in the field by a team
providing, as necessary, expertise in
chemistry, trajectory modeling, natural
resources at risk, and data management
(1) During a response, the SSC serves
under the direction of the OSC/RPM
and is responsible for providing
scientific support for operational
decisions and for coordinating on-scene
scientific activity. Depending on the
nature of the incident, the SSC can be
expected to provide certain specialized
scientific skills and to work with
governmental agencies, universities,
community representatives, and
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8831
industry to compile information that
would assist the OSC/RPM in assessing
the hazards and potential effects of
discharges and releases and in
developing response strategies.
(2) If requested by the OSC/RPM, the
SSC will serve as the principal liaison
for scientific information and will
facilitate communications to and from
the scientific community on response
issues. The SSC, in this role, will strive
for a consensus on scientific issues
surrounding the response but will also
ensure that any differing opinions within
the community are communicated to the
OSC/RPM.
(3) The SSC will assist the OSC/RPM
in responding to requests for assistance
from state and federal agencies
regarding scientific studies and
environmental assessments. Details on
access to scientific support shall be
included in the RCPs.
(e) For marine salvage operations,
OSCs/RPMs with responsibility for
monitoring, evaluating, or supervising
these activities should request technical
assistance from DOD, the Strike Teams,
or commercial salvors as necessary to
ensure that proper actions are taken.
Marine salvage operations generally fall
into five categories: Afloat salvage;
offshore salvage; river and harbor
clearance; cargo salvage; and rescue
towing. Each category requires different
knowledge and specialized types of
equipment. The complexity of such
operations may be further compounded
by local environmental and geographic
conditions. The nature of marine salvage
and the conditions under which it occurs
combine to make such operations
imprecise, difficult, hazardous, and
expensive. Thus, responsible parties or
other persons attempting to perform
such operations without adequate
knowledge, equipment, and experience
could aggravate, rather than relieve, the
situation.
(f) Radiological Assistance Teams
(RATs) have been established by EPA's
Office of Radiation Programs (ORP) to
provide response and support for
incidents or sites containing radiological
hazards. Expertise is available in
radiation monitoring, radionuclide
analysis, radiation health physics, and
risk assessment. Radiological
Assistance Teams can provide on-site
support including mobile monitoring
laboratories for field analyses of
samples and fixed laboratories for
radiochemical sampling and analyses.
Requests for support may be made 24
hours a day to the Radiological
Response Coordinator in the EPA Office
of Radiation Programs. Assistance is
also available from the Department of
Energy and other federal agencies.
(g) The USCG Public Information
Assist Team (PIAT) is available to assist
OSCs/RPMs and regional or district
offices to meet the demands for public
information and participation. Its use is
encouraged any time the OSC/RPM
requires outside public affairs support.
Requests for the PIAT may be made
through the NRC.
(300.150 Worker health and safety.
(a) Response actions under the NCP
will comply with the provisions for
response action worker safety and
health in 29 CFR 1910.120.
(b) In a response action taken by a
responsible party, the responsible party
must assure that an occupational safety
and health program consistent with 29
CFR 1910.120 is made available for the
protection of workers at the response
site.
(c) In a response taken under the NCP
by a lead agency, an occupational safety
and health program should be made
available for the protection of workers
at the response site, consistent with, and
to the extent required by, 29 CFR
1910.120. Contracts relating to a
response action under the NCP should
contain assurances that the contractor
at the response site will comply with
this program and with any applicable
provisions of the OSH Act and state
OSH laws.
(d) When a state, or political
subdivision of a state, without an
OSHA-approved state plan is the lead
agency for response, the state or
political subdivision must comply with
standards in 40 CFR part 311.
promulgated by EPA pursuant to section
126(f) of SARA.
(e) Requirements, standards, and
regulations of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 651 et
seq.) (OSH Act] and of state laws with
plans approved under section 18 of the
OSH Act (state OSH laws), not directly
referenced in paragraphs (a) through (d)
of this section, must be complied with
where applicable. Federal OSH Act
requirements include, among other
things. Construction Standards (29 CFR
part 1926), General Industry Standards
(29 CFR part 1910), and the general duty
requirement of section 5(a)(l) of the
OSH Act (29 U.S.C. 654(a)(l)). No action
by the lead agency with respect to
response activities under the NCP
constitutes an exercise of statutory
authority within the meaning of section
4(b)(l) of the OSH Act. All
governmental agencies and private
employers are directly responsible for
the health and safety of their own
employees.
(300.155 Public Information and
community relation*.
(a) When an incident occurs, it is
imperative to give the public prompt,
accurate information on the nature of
the incident and the actions underway
to mitigate the damage. OSCs/RPMs
and community relations personnel
should ensure that all appropriate public
and private interests are kept informed
and that their concerns are considered
throughout a response. They should
coordinate with available public affairs/
community relations resources to carry
out this responsibility.
(b) An on-scene news office may be
established to coordinate media
relations and to issue official federal
information on an incident. Whenever
possible, it will be headed by a
representative of the lead agency. The
OSC/RPM determines the location of
the on-scene news office, but every
effort should be made to locate it near
the scene of the incident. If a
participating agency believes public
interest warrants the issuance of
statements and an on-scene news office
has not been established, the affected
agency should recommend its
establishment. All federal news releases
or statements by participating agencies
should be cleared through the OSC/
RPM.
(c) The community relations
requirements specified in 5 5 300.415,
300.430, and 300.435 apply to removal,
remedial, and enforcement actions and
are intended to promote active
communication between communities
affected by discharges or releases and
the lead agency responsible for response
actions. Community Relations Plans
(CRPs) are required by EPA for certain
response actions. The OSC/RPM should
ensure coordination with such plans
which may be in effect at the scene of a
discharge or release or which may need
to be developed during follow-up
activities.
{ 300.160 Documentation and cost
recovery.
(a) For releases of a hazardous
substance, pollutant, or contaminant tb
following provisions apply:
(1) During all phases of response, the
lead agency shall complete and
maintain documentation to support all
actions taken under the NCP end to
form the basis for cost recovery. In
general, documentation shall be
sufficient to provide the source and
circumstances of the release, the
identity of responsible parties, the
response action taken, accurate
accounting of federal, state, or private
party costs incurred for response
-------
8832 Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
actions, and impacts and potential
impacts to the public health and welfare
and the environment. Where applicable,
documentation shall state when the
NRC received notification of a release of
a importable quantity.
(2) The information and reports
obtained by the lead agency for Fund-
financed response actions shall, as
appropriate, be transmitted to the chair
of the RRT. Copies can then be
forwarded to the NRT, members of the
RRT, and others as appropriate. In
addition, OSCs shall submit reports as
required under 5 300.165.
(3) The lead agency shall make
available to the trustees of affected
natural resources information and
documentation that can assist the
trustees in the determination of actual or
potential natural resource injuries.
(b) For discharges of oil,
documentation and cost recovery
provisions are described in § 300.315.
(c) Response actions undertaken by
the participating agencies shall be
carried out under existing programs and
authorities when available. Federal
agencies are to make resources
available, expend funds, or participate
in response to discharges and releases
under their existing authority.
Interagency agreements may be signed
when necessary to ensure that the
federal resources will be available for a
timely response to a discharge or
release. The ultimate decision as to the
appropriateness of expending funds
rests with the agency that is held
accountable for such expenditures.
Further funding provisions for
discharges of oil are described in
J 300,335.
(d) The Administrator of EPA and the
Administrator of the Agency for Toxic
Substances and Disease Registry
(ATSDR) shall assure that the costs of
health assessment or health effect
studies conducted under the authority of
CERCLA section 104(i) are documented
in accordance with standard EPA
procedures for cost recovery.
Documentation shall include
information on the nature of the
hazardous substances addressed by the
research, information concerning the
locations where these substances have
been found, and any available
information on response actions taken
concerning these substances at the
location.
(300.165 OSC report*.
(a) Within one year after completion
of removal activities at a major
discharge of oil, a major release of a
hazardous substance, pollutant, or
contaminant, or when requested by the
RRT, the OSC/RPM shall submit to the
RRT a complete report on the removal
operation and the actions taken. The
OSC/RPM shall at the same time send a
copy of the report to the Secretary of the
NRT. The RRT shall review the OSC
report and send to the NRT a copy of the
OSC report with its comments or
recommendations within 30 days after
the RRT has received the OSC report.
(b) The OSC report shall record the
situation as it developed, the actions
taken, the resources committed, and the
problems encountered.
(c) The format for the OSC report
shall be as follows:
(1) Summary of Events—a
chronological narrative of all events,
including:
(i) The location of the hazardous
substance, pollutant, or contaminant
release or oil discharge, including, for oil
discharges, an indication of whether the
discharge was in connection with
activities regulated under the Outer
Continental Shelf Lands Act (OCSLA),
the Trans-Alaska Pipeline Authorization
Act, or the Deepwater Port Act;
(ii) The cause of the discharge or
release;
(iii) The initial situation;
(iv) Efforts to obtain response by
responsible parties;
(v) The organization of the response,
including state participation;
(vi) The resources committed;
(vii) Content and time of notice to
natural resource trustees relating injury
or possible injury to natural resources;
(viiij Federal or state trustee damage
assessment activities and efforts to
replace or restore damaged natural
resources;
(ix) Details of any threat abatement
action taken under CERCLA or under
section 311 (c) or (d) of the CWA;
(x) Treatment/disposal/alternative
technology approaches pursued and
followed; and
(xi) Public information/community
relations activities.
(2) Effectiveness of removal actions
taken by:
(i) The responsible party(ies);
(ii) State and local forces;
(iii) Federal agencies and special
teams; and
(iv) Contractors, private groups, and
volunteers, if applicable.
(3} Difficulties Encountered—A list of
items that affected the response, with
particular attention to issues of
intergovernmental coordination.
(4) Recommendations—OSC/RPM
recommendations, including at a
minimum:
(i) Means to prevent a recurrence of
the discharge or release;
(ii) Improvement of response actions;
and
(iii) Any recommended changes in the
NCP. RCP. OSC contingency plan, and,
as appropriate, plans developed under
section 303 of SARA and other local
emergency response plans.
§300.170 F«d«r*l agency participation.
Federal agencies listed in § 300.175
have duties established by statute,
executive order, or Presidential directive
which may apply to federal response
actions following, or in prevention of,
the discharge of oil or release of a
hazardous substance, pollutant, or
contaminant. Some of these agencies
also have duties relating to the
rehabilitation, restoration, or
replacement of natural resources injured
or lost as a result of such discharge or
release as described in subpart G of this
part. The NRT and RRT organizational
structure, and the NCP. federal regional
contingency plans (RCPs), and OSC
contingency plans, described in
{ 300.210, provide for agencies to
coordinate with each other in carrying
out these duties.
(a) Federal agencies may be called
upon by an OSC/RPM during response
planning and implementation to provide
assistance in their respective areas of
expertise, as described in § 300.175,
consistent with the agencies'
capabilities and authorities.
(b) In addition to their general
responsibilities, federal agencies should:
(1) Make necessary information
available to the Secretary of the NRT,
RRTs. and OSCs/RPMs.
(2) Provide representatives to the NRT
and RRTs and otherwise assist RRTs
and OSCs, as necessary, in formulating
RCPs and OSC contingency plans.
(3) Inform the NRT and RRTs.
consistent with national security
considerations, of changes in the
availability of resources that would
affect the operations implemented under
the NCP.
(c) All federal agencies are
responsible for reporting releases of
hazardous substances from facilities or
vessels under their jurisdiction or
control in accordance with section 103
of CERCLA.
(d) All federal agencies are
encouraged to report releases of
pollutants or contaminants or discharges
of oil from vessels under their
jurisdiction or control to the NRC.
{300.175 Federal •gmdM: additional
rttponstbllltte* and assistance.
(a) During preparedness planning or in
an actual response, various federal
agencies may be called upon to provide
assistance in their respective areas of
expertise, as indicated in paragraph (b)
-------
Federal Register / Vol. 55, No. 46 / Thursday. March 8. 1990 / Rules and Regulations 8833
of this section, consistent with agency
legal authorities and capabilities.
(b) The federal agencies include:
(1) The United States Coast Guard
(USCG), as provided in 14 U.S.C. 1-3, is
an agency in the Department of
Transportation (DOT), except when
operating as an agency in the United
States Navy in time of war. The USCG
provides the NRT vice chair, co-chairs
for the standing RRTs, and
predesignated OSCs for the coastal
zone, as described in § 300.120(a)(l). The
USCG maintains continuously manned
facilities which can be used for
command, control, and surveillance of
oil discharges and hazardous substance
releases occurring in the coastal zone.
The USCG also offers expertise in
domestic and international fields of port
safety and security, maritime law
enforcement, ship navigation and
construction, and the manning,
operation, and safety of vessels and
marine facilities. The USCG may enter '
into a contract or cooperative agreement
with the appropriate state in order to
implement a response action.
(2) The Environmental Protection
Agency (EPA) chairs the NRT and co-
chairs, with the USCG, the standing
RRTs; provides predesignated OSCs for
the inland zone and RPMs for remedial
actions except as otherwise provided;
and generally provides the SSC for
responses in the inland zone. EPA
provides expertise on environmental
effects of oil discharges or releases of
hazardous substances, pollutants, or
contaminants, and environmental
pollution control techniques. EPA also
provides legal expertise on the
interpretation of CERCLA and other
environmental statutes. EPA may enter
into a contract or cooperative agreement
with the appropriate state in order to
implement a response action.
(3) The Federal Emergency
Management Agency (FEMA) provides
guidance, policy and program advice,
and technical assistance in hazardous
materials and radiological emergency
preparedness activities (planning.
training, and exercising). In a response,
FEMA provides advice and assistance
to the lead agency on coordinating
relocation assistance and mitigation
efforts with other federal agencies, state
and local governments, and the private
sector. FEMA may enter into a contract
or cooperative agreement with the
appropriate state or political subdivision
in order to implement relocation
assistance in a response. In the event of
a hazardous materials incident at a
major disaster or emergency declared by
the President, the lead agency shall
coordinate hazardous materials
response with the Federal Coordinating
Officer (FCO) appointed by the
President.
(4) The Department of Defense (DOD)
has responsibility to take all action
necessary with respect to releases
where either the release is on, or the
sole source of the release is from, any
facility or vessel under the jurisdiction,
custody, or control of DOD. DOD may
also, consistent with its operational
requirements and upon request of the
OSC, provide locally deployed United
States Navy oil spill equipment and
provide assistance to other federal
agencies on request. The following two
branches of DOD have particularly
relevant expertise:
(i) The United States Army Corps of
Engineers has specialized equipment
and personnel for maintaining
navigation channels, for removing
navigation obstruction, for
accomplishing structural repairs, and for
performing maintenance to hydropower
electric generating equipment. The
Corps can also provide design services,
perform construction, and provide
contract writing and contract
administrative services for other federal
agencies.
(ii) The United States Navy (USN) is
the federal agency most knowledgeable
and experienced in ship salvage,
shipboard damage control, and diving.
The USN has an extensive array of
specialized equipment and personnel
available for use in these areas as well
as specialized containment, collection,
and removal equipment specifically
designed for salvage-related and open-
sea pollution incidents.
(5) The Department of Energy (DOE)
generally provides designated OSCs/
RPMs that are responsible for taking all
response actions with respect to
releases where either the release is on,
or the sole source of the release is from,
any facility or vessel under its
jurisdiction, custody, or control,
including vessels bareboat-chartered
and operated. In addition, under the
Federal Radiological Emergency
Response Plan (FRERP), DOE provides
advice and assistance to other OSCs/
RPMs for emergency actions essential
for the control of immediate radiological
hazards. Incidents that qualify for DOE
radiological advice and assistance are
those believed to involve source, by-
product, or special nuclear material or
other ionizing radiation sources,
including radium, and other naturally
occurring radionuclides, as well as
particle accelerators. Assistance is
available through direct contact with the
appropriate DOE Radiological
Assistance Coordinating Office.
(6) The Department of Agriculture
(USDA) has scientific and technical
capability to measure, evaluate, and
monitor, either on the ground or by use
of aircraft, situations where natural
resources including soil, water, wildlife,
and vegetation have been impacted by
fire, insects and diseases, floods,
hazardous substances, and other natural
or man-caused emergencies. The USDA
may be contacted through Forest Service
emergency staff officers who are the
designated members of the RRT.
Agencies within USDA have relevant
capabilities and expertise as follows:
(i) The Forest Service has
responsibility for protection and
management of national forests and
national grasslands. The Forest Service
has personnel, laboratory, and field
capability to measure, evaluate,
monitor, and control as needed, releases
of pesticides and other hazardous
substances on lands under its
jurisdiction.
(ii) The Agriculture Research Service
(ARS) administers an applied and
developmental research program in
animal and plant protection and
production; the use and improvement of
soil, water, and air; the processing,
storage, and distribution of farm
products; and human nutrition. The ARS
has the capabilities to provide
regulation of, and evaluation and
training for, employees exposed to
biological, chemical, radiological, and
industrial hazards. In emergency
situations, the ARS can identify, control,
and abate pollution in the areas of air,
soil, wastes, pesticides, radiation, and
toxic substances for ARS facilities.
(iii) The Soil Conservation Service
(SCS) has personnel in nearly every
county in the nation who are
knowledgeable in soil, agronomy,
engineering, and biology. These
personnel can help to predict the effects
of pollutants on soil and their
movements over and through soils.
Technical specialists can assist in
identifying potential hazardous waste
sites and provide review and advice on
plans for remedial measures.
(iv) The Animal and Plant Health
Inspection Service (APHIS) can respond
in an emergency to regulate movement
of diseased or infected organisms to
prevent the spread and contamination of
nonaffected areas.
(v) The Food Safety and Inspection
Service (FSIS) has responsibility to
prevent meat and poultry products
contaminated with harmful substances
from entering human food channels. In
emergencies, the FSIS works with other
federal and state agencies to establish
acceptability for slaughter of exposed or
potentially exposed animals and their
products. In addition they are charged
-------
883A Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
with managing the Federal Radiological
Emergency Response Program for the
USDA.
(7) The Department of Commerce
(DOC), through NOAA, provides
scientific support for response and
contingency planning in coastal and
marine areas, including assessments of
the hazards that may be involved,
predictions of movement and dispersion
of oil and hazardous substances through
trajectory modeling, and information on
the sensitivity of coastal environments
to oil and hazardous substances;
provides expertise on living marine
resources and their habitats, including
endangered species, marine mammals
and National Marine Sanctuary
ecosystems; provides information on
actual and predicted meteorological,
bydrological, ice, and oceanographic
conditions for marine, coastal, and
inland waters, and tide and circulation
data for coastal and territorial waters
and for the Great Lakes.
(8) The Department of Health and
Human Services (HHS) is responsible
for providing assistance on matters
related to the assessment of health
hazards at a response, and protection of
both response workers and the public's
health. HHS is delegated authorities
under section 104(b) of CERCLA relating
to a determination that illness, disease,
or complaints thereof may be
attributable to exposure to a hazardous
substance, pollutant, or contaminant.
HHS programs and services may be
carried out through grants, contracts, or
cooperative agreements. The basic
research programs shall be coordinated
with the Superfund research,
demonstration, and development
program conducted by EPA and DOD
through the mechanisms provided for in
CERCLA. Agencies within HHS have
relevant responsibilities, capabilities,
and expertise as follows:
(i) The Agency for Toxic Substances
and Disease Registry (ATSDR), under
section 104(i) of CERCLA, is required to:
Establish appropriate disease/exposure
registries; provide medical care and
testing of exposed individuals in cases
of public health emergencies; develop,
maintain, and provide information on
health effects of toxic substances;
maintain a list of areas restricted or
closed because of toxic substances
contamination; conduct research to
determine relationships between
exposure to toxic substances and
illness; conduct health assessments at
all NPL sites; conduct a health
assessment in response to a petition or
provide a written explanation why an
assessment will not be conducted;
together with EPA, identify the most
hazardous substances related to
CERCLA sites; together with EPA,
develop guidelines for lexicological
profiles for hazardous substances;
develop a lexicological profile for all
such substances; and develop
educational materials related to health
effects of toxic substances for health
professionals.
(ii) The National Institutes for
Environmental Health Sciences (NffiHS)
has been given the responsibilities
under section 311(a) of CERCLA, to
conduct and support programs of basic
research, development, and
demonstration; and to establish short
course and continuing education
programs, and graduate or advanced
training. In addition, section 126(g) of
SARA authorizes ND3HS to administer
grants for training and education of
workers who are or may be engaged in
activities related to hazardous waste
removal, containment, or emergency
responses.
(9) The Department of the Interior
fDOI) may be contacted through
Regional Environmental Officers
(REOs), who are the designated
members of RRTs. Department land
managers have jurisdiction over the
national park system, national wildlife
refuges and fish hatcheries, the public
lands, and certain water projects in
western states. In addition, bureaus and
offices have relevant expertise as
follows:
(i) Fish and Wildlife Service:
Anadromous and certain other fishes
and wildlife, including endangered and
threatened species, migratory birds, and
certain marine mammals; waters and
wetlands; contaminants affecting
habitat resources; and laboratory
research facilities.
(ii) Geological Survey: Geology,
hydrology (ground water and surface
water), and natural hazards.
(iit) Bureau of Land Management:
Minerals, soils, vegetation, wildlife,
habitat, archaeology, and wilderness;
and hazardous materials.
(iv) Minerals Management Service:
Manned facilities for Outer Continental
Shelf (DCS) oversight.
(v) Bureau of Mines: Analysis and
identification of inorganic hazardous
substances and technical expertise in
metals and metallurgy relevant to site
cleanup.
(vi) Office of Surface Mining: Coal
mine wastes and land reclamation.
(vii) National Park Service: Biological
and general natural resources expert
personnel at park units.
(viii) Bureau of Reclamation:
Operation and maintenance of water
projects in the West; engineering and
hydrology; and reservoirs.
(ix) Bureau of Indian Affairs:
Coordination of activities affecting
Indian lands; assistance in identifying
Indian tribal government officials.
(x) Office of Territorial Affairs:
Assistance in implementing the NCP in
American Samoa, Guam, the Pacific
Island Governments, the Northern
Mariana Islands, and the Virgin Islands.
(10) The Department of Justice (DOJ)
can provide expert advice on
complicated legal questions arising from
discharges or releases, and federal
agency responses. In addition, the DO}
represents the federal government,
including its agencies, in litigation
relating to such discharges or releases.
(11) The Department of Labor (DOL),
through the Occupational Safety and
Health Administration (OSHA) and the
states operating plans approved under
section 18 of the Occupational Safety
and Health Act of 1970 (OSH Act), has
authority to conduct safety and health
inspections of hazardous waste sites to
assure that employees are being
protected and to determine if the site is
in compliance with:
(i) Safety and health standards and
regulations promulgated by OSHA (or
the states) in accordance with section
126 of SARA and all other applicable
standards; and
(ii) Regulations promulgated under the
OSH Act and its general duty clause.
OSHA inspections may be self-
generated, consistent with its program
operations and objectives, or may be
conducted in response to requests from
EPA or another lead agency. OSHA may
also conduct inspections in response to
accidents or employee complaints.
OSHA may also conduct inspections at
hazardous waste sites in those states
with approved plans that choose not to
exercise their jurisdiction to inspect
such sites. On request OSHA will
provide advice and assistance to EPA
and other NRT/RRT agencies as well as
to the OSC/RPM regarding hazards to
persons engaged in response activities.
Technical assistance may include
review of site safety plans and work
practices, assistance with exposure
monitoring, and help with other
compliance questions. OSHA may also
take any other action necessary to
assure mat employees are properly
protected at such response activities.
Any questions about occupational
safety and health at these sites should
be referred to the OSHA Regional
Office.
(12) The Department of
Transportation (DOT) provides response
expertise pertaining to transportation of
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8. 1990 / Rules and Regulations 8835
oil or hazardous substances by all
modes of transportation. Through the
Research and Special Programs
Administration (RSPA), DOT offers
expertise in the requirements for
packaging, handling, and transporting
regulated hazardous materials.
(13) The Department of State (DOS)
will lead in the development of
international joint contingency plans. It
will also help to coordinate an
international response when discharges
or releases cross international
boundaries or involve foreign flag
vessels. Additionally, DOS will
coordinate requests for assistance from
foreign governments and U.S. proposals
for conducting research at incidents that
occur in waters of other countries.
(14) The Nuclear Regulatory
Commission will respond, as
appropriate, to releases of radioactive
materials by its licensees, in accordance
with the NRC Incident Response Plan
(NUREG-0728) to monitor the actions of
those licensees and assure that the
public health and environment are
protected and adequate recovery
operations are instituted. The Nuclear
Regulatory Commission will keep EPA
informed of any significant actual or
potential releases in accordance with
procedural agreements. In addition, the
Nuclear Regulatory Commission will
provide advice to the OSC/RPM when
assistance is required in identifying the
source and character of other hazardous
substance releases where the Nuclear
Regulatory Commission has licensing
authority for activities utilizing
radioactive materials.
(15) The National Response Center
(NRC), located at USCG Headquarters,
is the national communications center,
continuously manned for handling
activities related to response actions.
The NRC acts as the single federal point
of contact for all pollution incident
reporting and as the NRT
communications center. These response
actions include: Oil and hazardous
substances, radiological, biological,
etiological, surety materials, munitions,
and fuels. Notice of discharges must be
made telephonically through a toll free
number or a special local number
(Telecommunication Device for the Deaf
(TDD) and collect calls accepted.) The
telephone report is distributed to any
interested NRT member agency or
federal entity that has established a
written agreement or understanding
with the NRC. Each telephone notice is
magnetically voice recorded and
manually entered into an on-line
computer data base. The NRC tracks
medium, major, and potential, major
spills and provides incident summaries
to all NRT members and other interested
parties. The NRC evaluates incoming
information and immediately advises
FEMA of a potential major disaster or
evacuations situation. The NRC
provides facilities for the NRT to use in
coordinating a national response action.
when required; assists in arrangements
for regular as well as special NRT
meetings and maintains information on
the time and place of such meetings; and
sends representatives to RRT meetings
as appropriate. The NRC is available to
assist all NRT agencies as needed.
§300.180 State and local participation In
response.
(a) Each state governor is requested to
designate one state office/
representative to represent the state on
the appropriate RRT. The state's office/
representative may participate fully in
all activities of the appropriate RRT.
Each state governor is also requested to
designate a lead state agency that will
direct state-lead response operations.
This agency is responsible for
designating the OSC/RPM for state-lead
response actions, designating SACs for
federal-lead response actions, and
coordinating/communicating with any
other state agencies, as appropriate.
Local governments are invited to
participate in activities on the
appropriate RRT as may be provided by
state law or arranged by the state's
representative. Indian tribes wishing to
participate should assign one person or
office to represent the tribal government
on the appropriate RRT.
(b) In addition to meeting the
requirements for local emergency plans
under SARA section 303, state and local
government agencies are encouraged to
include contingency planning for
responses, consistent with the NCP and
the RCP, in all emergency and disaster
planning..
(c) For facilities not addressed under
CERCLA, states are encouraged to
undertake response actions themselves
or to use their authorities to compel
potentially responsible parties to
undertake response actions.
(d) States are encouraged to enter into
cooperative agreements pursuant to
section 104(c)(3) and (d) of CERCLA to
enable them to undertake actions
authorized under subparts D and E of
the NCP. Requirements for entering into
these agreements are included in
subpart F of the NCP. A state agency
that acts pursuant to such agreements is
referred to as the lead agency. In the
event there is no cooperative agreement,
the lead agency can be designated in a
SMOA or other agreement.
(e) Because state and local public
safety organizations would normally be
the first government representatives at
the scene of a discharge or release, they
are expected to initiate public safety
measures that are necessary to protect
public health and welfare and that are
consistent with containment and
cleanup requirements in the NCP, and
are responsible for directing evacuations
pursuant to existing state or local
procedures.
§ 300.185 Nongovernmental participation.
(a) Industry groups, academic
organizations, and others are
encouraged to commit resources for
response operations. Specific
commitments should be listed in the
RCP and OSC contingency plans.
(b) The technical and scientific
information generated by the local
community, along with information from
federal, state, and local governments,
should be used to assist the OSC/RPM
in devising response strategies where
effective standard techniques are
unavailable. The SSC may act as liaison
between the OSC/RPM and such
interested organizations.
(c) OSC contingency plans shall
establish procedures to allow for well
organized, worthwhile, and safe use of
volunteers, including compliance with
§ 300.150 regarding worker health and
safety. OSC contingency plans should
provide for the direction of volunteers
by the OSC/RPM or by other federal.
state, or local officials knowledgeable in
contingency operations and capable of
providing leadership. OSC contingency
plans also should identify specific areas
in which volunteers can be used, such as
beach surveillance, logistical support,
and bird and wildlife treatment. Unless
specifically requested by the OSC/RPM,
volunteers generally should not be used
for physical removal or remedial
activities. If, in the judgment of the
OSC/RPM, dangerous conditions exist,
volunteers shall be restricted from on-
scene operations.
(d) Nongovernmental participation
must be in compliance with the
requirements of subpart H of this part if
any recovery of costs will be sought.
Subpart C—Planning and
Preparedness
$300.200 General.
This subpart summarizes emergency
preparedness activities relating to
discharges of oil and releases of
hazardous substances, pollutants, or
contaminants; describes the federal,
state, and local planning structure;
provides for three levels of federal
contingency plans; and cross-references
state and local emergency preparedness
-------
8836
Federal Register / Vol. 55. No. 46 / Thursday. March 8, 1990 / Rules and Regulations
activities under SARA Title ffi, also
known as the "Emergency Planning and
Community Right-to-Know Act of 1986"
but referred to herein as 'Title HI."
Regulations implementing Title III are
codified at 40 CFR subchapter J.
§300.205 Wanning and coordination
structure.
(a) National. As described in
§ 300.110, the NRT is responsible for
national planning and coordination.
(b) Regional. As described in
§ 300.115. the RRTs are responsible for
regional planning and coordination.
(c) State. As provided by sections 301
and 303 of SARA, the state emergency
response commission (SERC) of each
state, appointed by the Governor, is to
designate emergency planning districts,
appoint local emergency planning
committees (LEPCs), supervise and
coordinate their activities, and review
local emergency response plans, which
are described in § 300.215. The SERC
also is to establish procedures for
receiving and processing requests from
the public for information generated by
Title III reporting requirements and to
designate an official to serve as
coordinator for information.
(d) Local. As provided by sections 301
and 303 of SARA, emergency planning
districts are designated by the SERC in
order to facilitate the preparation and
implementation of emergency plans.
Each LEPC is to prepare a local
emergency response plan for the
emergency planning district and
establish procedures for receiving and
processing requests from the public for
information generated by Title III
reporting requirements. The LEPC is to
appoint a chair and establish rules for
the LEPC. The LEPC is to designate an
official to serve as coordinator for
information.
{300.210 Federal contingency plans.
There are three levels of federal
contingency plans: The National
Contingency Plan, regional contingency
plans (RCPs), and OSC contingency
plans. These plans are available for
inspection at EPA regional, offices or
USCG district offices. Addresses and
telephone numbers for these offices may
be found in the United States
Government Manual, issued annually, or
in local telephone directories.
(a) The National Contingency Plan.
The purpose and objectives, authority,
and scope of the NCP are described in
j§ 300.1 through 300.3.
(b) Regional contingency plans. The
RRTs, working with the states, shall
develop federal RCPs for each standard
federal region, Alaska, Oceania in the
Pacific, and the Caribbean to coordinate
timely, effective response by various
federal agencies and other organizations
to discharges of oil or releases of
hazardous substances, pollutants, or
contaminants. RCPs shall, as
appropriate, include information on all
useful facilities and resources in the
region, from government, commercial,
academic, and other sources. To the
greatest extent possible, RCPs shall
follow the format of the NCP and
coordinate with state emergency
response plans, OSC contingency plans,
which are described in § 300.210(c), and
Title ED local emergency response plans,
which are described in § 300.215. Such
coordination should be accomplished by
•working with the SERCs in the region
covered by the RCP. RCPs shall contain
lines of demarcation between the inland
and coastal zones, as mutually agreed
upon by USCG and EPA.
(c)(l) OSC contingency plans. In order
to provide for a coordinated, effective
federal, state, and local response, each
OSC, in consultation with the RRT, may
develop an OSC contingency plan for
response in the OSC area of
responsibility. OSC contingency plans
shall be developed in all areas in the
coastal zone, because OSCs in the
coastal zone have responsibility for
discharges and releases offshore, which
often exceed the jurisdiction and
capabilities of other responders.
Boundaries for OSC contingency plans
shall coincide with those agreed upon
among EPA, USCG, DOE. and DOD.
subject to functions and authorities
delegated in Executive Order 12580, to
determine OSC areas of responsibility
and should be clearly indicated in the
RCP. Jurisdictional boundaries of local
emergency planning districts established
by states, described in § 300.205(c),
shall, as appropriate, be considered in
determining OSC areas of responsibility.
OSC areas of responsibility may include
several such local emergency planning
districts, or parts of such districts. In
developing the OSC contingency plan,
OSCs shall coordinate with SERCs and
LEPCs affected by the OSC area of
responsibility.
(2) The OSC contingency plan shall
provide for a well-coordinated response
that is integrated and compatible with
all appropriate response plans of state,
local, and other nonfederal entities, and
especially with Title Ed local emergency
response plans, described in § 300.215,
or in the OSC area of responsibility. The
OSC contingency plan shall, as
appropriate, identify the probable
locations of discharges or releases; the
available resources to respond to multi-
media incidents; where such resources
can be obtained; waste disposal
methods and facilities consistent with
local and state plans developed under
the Solid Waste Disposal Act, 42 U.S.C.
6901 et seq.; and a local structure for
responding to discharges or releases.
{300.215 TWe III local emergency
response plans.
This section describes and cross-
references the regulations that
implement Title in of SARA. These
regulations are codified at 40 CFR part
355.
(a) Each LEPC is to prepare an
emergency response plan in accordance
with section 303 of SARA Title ID and
review the plan once a year, or more
frequently as changed circumstances in
the community or at any subject facility
may require. Such Title EQ local
emergency response plans should be
closely coordinated with applicable
federal OSC contingency plans and
state emergency response plans.
(b) A facility, as defined in 40 CFR
part 355, is subject to emergency
planning requirements if an extremely
hazardous substance, as defined in 40
CFR part 355, is present at the facility in
an amount equal to or in excess of the
threshold planning quantity established
for such substance. In addition, for the
purposes of emergency planning, a
Governor or SERC may designate
additional facilities that shall be subject
to planning requirements, if such
designation is made after public notice
and opportunity for comment. EPA may
revise the list of extremely hazardous
substances and threshold planning
quantities, taking into account the
toxicity, reactivity, volatility,
dispersability, combustibility, or
flammability of a substance. Facility
owners or operators are to name a
facility representative who will
participate in the planning process as a
facility emergency coordinator.
(c) In accordance with section 303 of
SARA, each local emergency response
plan is to include, but is not limited to,
the following:
(1) Identification of facilities subject
to Title Ed emergency planning
requirements that are within the
emergency planning district; routes
likely to be used for the transportation
of substances on the list of extremely
hazardous substances; and any
additional facilities, such as hospitals or
natural gas facilities, contributing or
subjected to additional risk due to their
proximity to facilities subject to Title HI
emergency planning requirements;
(2) Methods and procedures to be
followed by faculty owners and
operators and local emergency and
medical personnel to respond to any
-------
Federal Register / Vol. 55. No. 46 / Thursday, March 8, 1990 / Rules and Regulations 8837
release, as defined in 40 CFR part 355. of
extremely hazardous substances;
(3) Designation of a community
emergency coordinator and a facility
emergency coordinator for each facility
subject to Title III emergency planning
requirements, who will make
^ determinations necessary to implement
the emergency response plan;
(4) Procedures providing reliable,
effective, and timely notification by the
facility emergency coordinators and the
community emergency coordinator to
persons designated in the emergency
response plan, and to the public, that a
release has occurred;
(5) Methods for determining the
occurrence of a release and the area or
population likely to be affected by such
a release;
(6) A description of emergency
equipment and facilities in the
community and at each facility in the
community subject to Title III
emergency planning requirements,
including an identification of the
persons responsible for such equipment
and facilities;
(7) Evacuation plans, including
provisions for precautionary evacuation
and alternative traffic routes;
(8) Training programs, including
schedules for training of local
emergency response and medical
personnel; and
(9) Methods and schedules for
exercising the emergency response plan.
(d) In accordance with section 303 of
SARA, the SERC of each state is to
review the emergency response plan
developed by the LEPC of each
emergency planning district and make
recommendations to the LEPC on
revisions that may be necessary to
ensure coordination of the plan with
emergency response plans of other
emergency planning districts. RRTs may
review a local emergency response plan
at the request of the LEPC. This request
should be made by the LEPC, through
the SERC and the state representative
on the RRT.
(e) Title III establishes reporting
requirements that provide useful
information in developing emergency
plans.
(1) Upon request from the LEPC,
facility owners or operators shall
provide promptly to such LEPC
information necessary for developing
and implementing the emergency
response plan.
(2) Facilities required to prepare or
have available a material safety data
sheet (MSDS) for a hazardous chemical,
as defined in 40 CFR part 370, under the
Occupational Safety and Health Act of
1970. 29 U.S.C. 651 et seq., and
regulations promulgated under that Act,
shall submit a MSDS for each hazardous
chemical or a list of hazardous
chemicals to the appropriate SERC,
LEPC, and local fire department in
accordance with 40 CFR part 370.
(3) Facilities subject to the
requirements of paragraph (e}(2) of this
section shall also submit an inventory
form to the SERC. LEPC, and the local
fire department which contains an
estimate of the maximum amount of
hazardous chemicals present at the
facility during the preceding year, an
estimate of the average daily amount of
hazardous chemicals at the facility, and
the location of these hazardous
chemicals at the facility, in accordance
with 40 CFR part 37C.
(4) Certain facilities with 10 or more
employees and which manufacture,
process, or use a toxic chemical, as
defined in 40 CFR part 372, in excess of
a statutorily prescribed quantity, shall
submit annual information on the
chemical and releases of the chemical
into the environment to EPA and the
state in accordance with 40 CFR part
372.
(f) Immediately after a release of an
extremely hazardous substance, or a
hazardous substance subject to the
notification requirements of CERCLA
section 103(a), the owner or operator of
a facility, as defined in 40 CFR part 355,
shall notify the community emergency
coordinator for the appropriate LEPC
and the appropriate SERC in accordance
with 40 CFR part 355. As soon as
practicable after such a release has
occurred, the facility owner or operator
shall provide a written follow-up
emergency notice, or notices, if more
information becomes available, setting
forth and updating the information
contained in the initial release
notification and including additional
information with respect to response
actions taken, health risks associated
with the release, and, where
appropriate, advice regarding medical
attention necessary for exposed
individuals. For releases of hazardous
substances subject to the notification
requirements of CERCLA section 103(a),
immediate notification must also be
made to the NRC, as provided in
{ 300.405(b).
(g) Title in requires public access to
information submitted pursuant to its
reporting requirements. Each emergency
response plan, MSDS, inventory form,
toxic chemical release form, and follow-
up emergency release notification is to
be made available to the general public
during normal working hours at the
location(s) designated by the EPA
Administrator, Governor, SERC, or
LEPC, as appropriate.
5300.220
Other related Title III requirements
are found in 40 CFR part 355.
Subpart 0—Operational Response
Phases for OH Removal
S 300.300 Phase I—Discovery or
notification.
(a) A discharge of oil may be
discovered through:
(1) A report submitted by the person
in charge of a vessel or facility, in
accordance with statutory requirements;
(2) Deliberate search by patrols;
(3) Random or incidental observation
by government agencies or the public; or
(4) Other sources.
(b) Any person in charge of a vessel or
a facility shall, as soon as he or she has
knowledge of any discharge from such
vessel or facility in violation of section
311(b)(3] of the Clean Water Act,
immediately notify the NRC. If direct
reporting to the NRC is not practicable,
reports may be made to the USCG or
EPA preHo-'gnated OSC for the
geographic area where the discharge
occurs. The EPA predesignated OSC
may also be contacted through the
regional 24-hour emergency response
telephone number. All such reports shall
be promptly relayed to the NRC. If it is
not possible to notify the NRC or
predesignated OSC immediately, reports
may be made immediately to the nearest
Coast Guard unit. In any event such
person in charge of the vessel or facility
shall notify the NRC as soon as possible.
(c) Any other person shall, as
appropriate, notify the NRC of a
discharge of oil.
(d) Upon receipt of a notification of
discharge, the NRC shall promptly notify
the OSC. The OSC shall proceed with
the following phases as outlined in the
RCP and OSC contingency plan.
(300.305 Phase II—Preliminary
ass*ssm*nt and Initiation of action.
(a) The OSC is responsible for
promptly initiating a preliminary
assessment.
(b) The preliminary assessment shall
be conducted using available
information, supplemented where
necessary and possible'by an on-scene
inspection. The OSC shall undertake
actions to:
(1) Evaluate the magnitude and
severity of the discharge or threat to
public health or welfare or the
environment;
(2) Assess the feasibility of removal;
(3) To the extent practicable, identify
potentially responsible parties; and
(4) Ensure that authority exists for
undertaking additional response action
-------
8838 Federal Register / Vol. 55, No. 46 /Thursday, March 8. 1990 / Rules and Regulations
(c) The OSC, in consultation with
legal authorities when appropriate, shall
make a reasonable effort to have the
discharger voluntarily and promptly
perform removal actions. The OSC shall
ensure adequate surveillance over
whatever actions are initiated. If
effective actions are not being taken to
eliminate the threat, or if removal is not
being properly done, the OSC shall, to
the extent practicable under the
circumstances, so advise the responsible
party. If the responsible party does not
take proper removal actions, or is
unknown, or is otherwise unavailable,
the OSC shall, pursuant to section
311(c)(l) of the CWA. determine
whether authority for a federal response
exists, and, if so, take appropriate
response actions. Where practicable,
continuing efforts should be made to
encourage response by responsible
parties.
(d) If natural resources are or may be
injured by the discharge, the OSC shall
ensure that state and federal trustees of
affected natural resources are promptly
notified in order that the trustees may
initiate appropriate actions, including
those identified in subpart G. The OSC
shall seek to coordinate assessments,
evaluations, investigations, and
planning with state and federal trustees.
§ 300.310 Phase III—Containment,
countermeasures, cleanup, and disposal.
(a) Defensive actions shall begin as
soon as possible to prevent, minimize, or
mitigate threat(s) to public health or
welfare or the environment. Actions
may include but are not limited to:
Analyzing water samples to determine
the source and spread of the oil:
controlling the source of discharge;
measuring and sampling: source and
spread control or salvage operations:
placement of physical barriers to deter
the spread of the oil and to protect
natural resources; control of the water
discharged from upstream
impoundment; and the use of chemicals
and other materials in accordance with
subpart ] of this part to restrain the
spread of the oil and mitigate its effects.
(b) As appropriate, actions shall be
taken to recover the oil or mitigate its
effects. Of the numerous chemical or
physical methods that may be used, the
chosen methods shall be the most
consistent with protecting public health
and welfare and the environment.
Sinking agents shall not be used.
(c) Oil and contaminated materials
recovered in cleanup operations shall be
disposed of in accordance with the RCP
and OSC contingency plan and any
applicable laws, regulations, or
requirements.
{300.315 Ph*M IV—Documentation and
cost recovery.
(a) Documentation shall be collected
and maintained to support all actions
taken under the CWA and to form the
basis for cost recovery. Whenever
practicable, documentation shall be
sufficient to prove the source and
circumstances of the incident, the
responsible party or parties, and impact
and potential impacts to public health
and welfare and the environment. When
appropriate, documentation shall also
be collected for scientific understanding
of the environment and for the research
and development of improved response
methods and technology. Damages to
private citizen*", including loss of
earnings, are not addressed by the NCR
Evidentiary and cost documentation
procedures are specified in the USCG
Marine Safety Manual (Commandant
Instruction Ml6000.ll) and further
provisions are contained in 33 CFR part
153.
(b) OSCs shall submit OSC reports to
the RRT as required by § 300.165.
(c) OSCs shall ensure the necessary
collection and safeguarding of
information, samples, and reports.
Samples and information shall be
gathered expeditiously during the
response to ensure an accurate record of
the impacts incurred. Documentation
materials shall be made available to the
trustees of affected natural resources.
The OSC shall make available to
trustees of the affected natural
resources information and
documentation that can assist the
trustees in the determination of actual or
potential natural resource injuries.
(d) Information and reports obtained
by the EPA or USCG OSC shall be
transmitted to the appropriate offices
responsible for follow-up actions.
(300.320 G*n«ral pattern of rasponM.
(a) When the OSC receives a report of
a discharge, actions normally should be
taken in the following sequence:
(I) When the reported discharge is an
actual or potential major discharge,
immediately notify the RRT, including
the affected state, if appropriate, and the
NRC.
(2) Investigate the report to determine
pertinent information such as the threat
posed to public health or welfare or the
environment, the type and quantity of
polluting material, and the source of the
discharge.
(3) Officially classify the size of the
discharge and determine the course of
action to be followed.
(4) Determine whether a discharger or
other person is properly carrying out
removal. Removal is being done
properly when:
(i) The cleanup is fully sufficient to
minimize or mitigate threat(s) to public
health and welfare and the environment.
Removal efforts are improper to the
extent that federal efforts are necessary
to minimize further or mitigate those
threats; and
(ii) The removal efforts are in
accordance with applicable regulations,
including the NCP.
(5) Determine whether a state or
political subdivision thereof has the
capability to carry out response actions
and whether a contract or cooperative
agreement has been established with the
appropriate fund administrator for this
purpose.
(6) Notify the trustees of affected
natural resources in accordance with the
applicable RCP.
(b) The preliminary inquiry will
probably show that the situation falls
into one of four categories. These
categories and the appropriate response
to each are outlined below:
(1) If the investigation shows that no
discharge occurred, or it shows a minor
discharge with no removal action
required, the case may be closed for
response purposes.
(2) If the investigation shows a minor
discharge with the responsible party
taking proper removal action, contact
shall be established with the party. The
removal action shall, whenever possible,
be monitored to ensure continued proper
action.
(3) If the investigation shows a minor
discharge with improper removal action
being taken, the following measures
shall be taken:
(i) An immediate effort shall, as
appropriate, be made to stop further
pollution and remove past and ongoing
contamination.
(ii) The responsible party shall be
advised of what action will be
considered appropriate.
(iii) If the responsible party does not
properly respond, the party shall be
notified of potential liability for federal
response performed under the CWA.
This liability includes all costs of
removal and may include the costs of
assessing and restoring, rehabilitating,
replacing, or acquiring the equivalent of
damaged natural resources, and other
actual or necessary costs of a federal
response.
(iv) The OSC shall notify appropriate
state and local officials, keep the RRT
advised, and initiate Phase HI
operations, as described in § 300.310, as
conditions warrant
(v) Information shall be collected for
possible recovery of response costs in
accordance with 5 300.315.
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations 8839
(4} When the investigation shows that
an actual or potential medium or major
oil discharge exists, the OSC shall
follow the same general procedures as
for a minor discharge. If appropriate, the
OSC shall recommend activation of the
RRT.
{300.330 Wildlife conservation.
The Department of the Interior,
Department of Commerce, and state
representatives to the RRT shall arrange
for the coordination of professional and
volunteer groups permitted and trained
to participate in wildlife dispersal,
collection, cleaning, rehabilitation, and
recovery activities, consistent with 16
U.S.C. 703-712 and applicable state
laws. The RCP and OSC contingency
plans shall, to the extent practicable,
identify organizations or institutions
that are permitted to participate in such
activities and operate such facilities.
Wildlife conservation activities will
normally be included in Phase III
response actions, described in § 300.310.
§300.335 Funding.
(a) If the person responsible for the
discharge does not act promptly or take
proper removal actions, or if the person
responsible for the discharge is
unknown, federal discharge removal
actions may begin under section
311(c)(l) of the CWA. The discharger, if
known, is liable for costs of federal
removal in accordance with section
311(f) of the CWA and other federal
laws.
(b) Actions undertaken by the
participating agencies in response to
pollution shall be carried out under
existing programs and authorities when
available. Federal agencies will make
resources available, expend funds, or
participate in response to oil discharges
under their existing authority. Authority
to expend resources will be in
accordance with agencies' basic statutes
and, if required, through interagency
agreements. Where the OSC requests
assistance from a federal agency, that
agency may be reimbursed in
accordance with the provisions of 33
CFR 153.407. Specific interagency
reimbursement agreements may be
signed when necessary to ensure that
the federal resources will be available
for a timely response to a discharge of
oil. The ultimate decisions as to the
appropriateness of expending funds rest
with the agency that is held accountable
for such expenditures.
(c) The OSC shall exercise sufficient
control over removal operations to be
able to certify that reimbursement from
the following funds is appropriate:
(1) The oil pollution fund,
administered by the Commandant,
USCG. that has been established
pursuant to section 311(k) of the CWA
or any other spill response fund
established by Congress. Regulations
governing the administration and use of
the section 311(k) fund are contained in
33 CFR part 153.
(2) The fund authorized by the
Deepwater Port Act is administered by
the Commandant, USCC. Governing
regulations are contained in 33 CFR part
137.
(3) The fund authorized by the Outer
Continental Shelf Lands Act, as
amended, is administered by the
Commandant, USCG. Governing
regulations are contained in 33 CFR
parts 135 and 136.
(4) The fund authorized by the Trans-
Alaska Pipeline Authorization Act is
administered by a Board of Trustees
under the purview of the Secretary of
the Interior. Governing regulations are
contained in 43 CFR part 29.
(d) Response actions other than
removal, such as scientific
investigations not in support of removal
actions or law enforcement, shall be
provided by the agency with legal
responsibility for those specific actions.
(e) The funding of a response to a
discharge from a federally operated or
supervised facility or vessel is the
responsibility of the operating or
supervising agency.
(f) The following agencies have funds
available for certain discharge removal
actions:
(1) EPA may provide funds to begin
timely discharge removal actions when
the OSC is an EPA representative.
(2) The USCG pollution control efforts
are funded under "operating expenses."
These funds are used in accordance
with agency directives.
(3) The Department of Defense has
two specific sources of funds that may
be applicable to an oil discharge under
appropriate circumstances. This does
not consider military resources that
might be made available under specific
conditions.
(i) Funds required for removal of a
sunken vessel or similar obstruction of
navigation are available to the Corps of
Engineers through Civil Works
Appropriations, Operations and
Maintenance, General.
(ii) The U.S. Navy may conduct
salvage operations contingent on
defense operational commitments, when
funded by the requesting agency. Such
funding may be requested on a direct
cite basis.
(4) Pursuant to section 311(c)(2](H) of
the CWA, the state or states affected by
a discharge of oil may act where
necessary to remove such discharge and
may, pursuant to 33 CFR part 153, be
reimbursed from the oil pollution fund
for the reasonable costs incurred in such
a removal.
(i) Removal by a state is necessary
within the meaning of section
311(c)(2)[H) of the CWA when the OSC
determines that the owner or operator of
the vessel, onshore facility, or offshore
facility from which the discharge occurs
does not effect removal properly, or is
unknown, and that:
(A) State action is required to
minimize or mitigate significant threat(s)
to the public health or welfare or the
environment that federal action cannot
minimise or mitigate; or
(B) Removal or partial removal can be
done by the state at a cost that is less
than or not significantly greater than the
cost that would be incurred by the
federal agencies.
(ii) State removal actions must be in
compliance with the NCP in order to
qualify for reimbursement.
(iii) State removal actions are
considered to be Phase HI actions,
described in 5 300.310, under the same
definitions applicable to federal
agencies.
(iv) Actions taken by local
governments in support of federal
discharge removal operations are
considered to be actions of the state for
purposes of this section. The RCP and
OSC contingency plan shall show what
funds and resources are available from
participating agencies under various
conditions and cost arrangements.
Interagency agreements may be
necessary to specify when
reimbursement is required.
Subpart E—Hazardous Substance
Response
(300.400 General.
(a) This subpart establishes methods
and criteria for determining the
appropriate extent of response
authorized by CERCLA:
(1) When there is a release of a
hazardous substance into the
environment; or
(2) When there is a release into the
environment of any pollutant or
contaminant that may present an
imminent and substantial danger to the
public health or welfare.
(b) Limitations on response. Unless
the lead agency determines that a
release constitutes a public health or
environmental emergency and no other
person with the authority and capability
to respond will do so in a timely
manner, a removal or remedial action
under section 104 of CERCLA shall not
be undertaken in response to a release:
-------
8840 Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
(1) Of a naturally occurring substance
in its unaltered form, or altered solely
through naturally occurring processes or
phenomena, from a location where it is
naturally found;
(2) From products that are part of the
structure of, and result in exposure
within, residential buildings or business
or community structures; or
(3) Into public or private drinking
water supplies due to deterioration of
the system through ordinary use.
(c) Fund-financed action. In
determining the need for and in planning
or undertaking Fund-financed action, the
lead agency shall, to the extent
practicable:
(1) Engage in prompt response;
(2) Provide for state participation in
response actions, as described in
subpart F of this part;
(3) Conserve Fund monies by
encouraging private party response;
(4) Be sensitive to local community
concerns;
(5) Consider using treatment
technologies;
(6] Involve the Regional Response
Team (RRT) in both removal and
remedial response actions at
appropriate decision-making stages;
(7) Encourage the involvement and
sharing of technology by industry and
other experts; and
(8) Encourage the involvement of
organizations to coordinate responsible
party actions, foster site response, and
provide technical advice to the public,
federal and state governments, and
industry.
(d) Entry and access. (1) For purposes
of determining the need for response, or
choosing or taking a response action, or
otherwise enforcing the provisions of
CERCLA, EPA, or the appropriate
federal agency, and a state or political
subdivision operating pursuant to a
contract or cooperative agreement under
CERCLA section 104(d)(l), has the
authority to enter any vessel, facility,
establishment or other place, property,
or location described in paragraph (d)(2)
of this section and conduct, complete,
operate, and maintain any response
actions authorized by CERCLA or these
regulations.
(2)(i) Under the authorities described
in paragraph (d)(l) of this section. EPA,
or the appropriate federal agency, and a
•tate or political subdivision operating
pursuant to a contract or cooperative
agreement under CERCLA section
104(d)(l), may enter:
(A) Any vessel, facility,
establishment, or other place or property
where any hazardous substance or
pollutant or contaminant may be or has
been generated, stored, treated,
disposed of, or transported from;
(B) Any vessel, facility, establishment
or other place or property from which, or
to which, a hazardous substance or
pollutant or contaminant has been, or
may have been, released or where such
release is or may be threatened;
(C) Any vessel, facility, establishment,
or other place or property where entry is
necessary to determine the need for
response or the appropriate response or
to effectuate a response action; or
(D) Any vessel, facility, establishment,
or other place, property, or location
adjacent to those vessels, facilities,
establishments, places, or properties
described in paragraphs (d)(2)(i)(A), (B).
or (C) of this section.
(ii) Once a determination has been
made that there is a reasonable basis to
believe that there has been or may be a
release, EPA, or the appropriate federal
agency, and a state or political
subdivision operating pursuant to a
contract or cooperative agreement under
CERCLA section 104(d](l], is authorized
to enter all vessels, facilities,
establishments, places, properties, or
locations specified in paragraph (d)(2)(i)
of this section, at which the release is
believed to be, and all other vessels,
facilities, establishments, places,
properties, or locations identified in
paragraph (d)(2)(i) of this section that
are related to the response or are
necessary to enter in responding to that
release.
(3) The lead agency may designate as
its representative solely for the purpose
of access, among others, one or more
potentially responsible parties, including
representatives, employees, agents, and
contractors of such parties. EPA, or the
appropriate federal agency, may
exercise the authority contained in
section 104(e) of CERCLA to obtain
access for its designated representative.
A potentially responsible party may
only be designated as a representative
of the lead agency where that
potentially responsible party has agreed
to conduct response activities pursuant
to an administrative order or consent
decree.
(4)(i) If consent is not granted under
the authorities described in paragraph
(d)(l) of this section, or if consent is
conditioned in any manner, EPA, or the
appropriate federal agency, may .issue
an order pursuant to section 104(e)(5) of
CERCLA directing compliance with the
request for access made under
§ 300.400(d)(l). EPA or the appropriate
federal agency may ask the Attorney
General to commence a civil action to
compel compliance with either a request
for access or an order directing
compliance.
(ii) EPA reserves the right to proceed.
where appropriate, under applicable
authority other than CERCLA section
104(e).
(iii) The administrative order may
direct compliance with a request to
enter or inspect any vessel, facility,
establishment, place, property, or
location described in paragraph (d)(2) of
this section.
(iv) Each order shall contain:
(A) A determination by EPA, or the
appropriate federal agency, that it is
reasonable to believe that there may be
or has been a release or threat of a
release of a hazardous substance or
pollutant or contaminant and a
statement of the facts upon which the
determination is based;
(B) A description, in light of CERCLA
response authorities, of the purpose and
estimated scope and duration of the
entry, including a description of the
specific anticipated activities to be
conducted pursuant to the order;
(C) A provision advising the person
who failed to consent that an officer or
employee of the agency that issued the
order will be available to confer with
respondent prior to effective date of the
order; and
(D) A provision advising the person
who failed to consent that a court may
impose a penalty of up to $25,000 per
day for unreasonable failure to comply
with the order.
(v) Orders shall be served upon the
person or responsible party who failed
to consent prior to their effective date.
Force shall not be used to compel
compliance with an order.
(vi) Orders may not be issued for any
criminal investigations.
(e) Permit requirements. (1) No
federal, state, or local permits are
required for on-site response actions •
conducted pursuant to CERCLA sections
104.106,120.121, or 122. The term "on-
site" means the area! extent of
contamination and all suitable areas in
very close proximity to the
contamination necessary for
implementation of the response action,
(2) Permits, if required, shall be
obtained for all response activities
conducted off-site.
(f) Health assessments. Health
assessments shall be performed by
ATSDR at facilities on or proposed to be
listed on the NFL and may be performed
at other releases or facilities in response
to petitions made to ATSDR. Where
available, these health assessments may
be used by the lead agency to assist in
determining whether response actions
should be taken and/or to identify the
need for additional studies to assist in
the assessment of potential human
health effects associated with releases
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
or potential releases of hazardous
substances.
(g) Identification of applicable or
relevant and appropriate requirements.
[1] The lead and support agencies shall
identify requirements applicable to the
release or remedial action contemplated
based upon an objective determination
of whether the requirement specifically
addresses a hazardous substance.
pollutant, contaminant, remedial action,
location, or other circumstance found at
a CERCLA site.
(2) If, based upon paragraph (g)(l) of
this section, it is determined that a
requirement is not applicable to a
specific release, the requirement may
still be relevant and appropriate to the
circumstances of the release. In
evaluating relevance and
appropriateness, the factors in
paragraphs (g)(2)(i) through (viii) of this
section shall be examined, where
pertinent, to determine whether a
requirement addresses problems or
situations sufficiently similar to the
circumstances of the release or remedial
action contemplated, and whether the
requirement is well-suited to the site,
and therefore is both relevant and
appropriate. The pertinence of each of
the following factors will depend, in
part, on whether a requirement
addresses a chemical, location, or
action. The following comparisons shall
be made, where pertinent, to determine
relevance and appropriateness:
(i) The purpose of the requirement and
the purpose of the CERCLA action;
(ii) The medium regulated or affected
by the requirement and the medium
contaminated or affected at the
CERCLA site;
(iii) The substances regulated by the
requirement and the substances found at
the CERCLA site;
(iv) The actions or activities regulated
by the requirement and the remedial
action contemplated at the CERCLA
site;
(v) Any variances, waivers, or
exemptions of the requirement and their
availability for the circumstances at the
CERCLA site;
(vi) The type of place regulated and
the type of place affected by the release
or CERCLA action;
(vii) The type and size of structure or
facility regulated and the type and size
of structure or facility affected by the
release or contemplated by the CERCLA
action;
(viii} Any consideration of use or
potential use of affected resources in the
requirement and the use or potential use
of the affected resource at the CERCLA
site.
(3) In addition to applicable or
relevant and appropriate requirements,
the lead and support agencies may, as
appropriate, identify other advisories,
criteria, or guidance to be considered for
a particular release. The "to be
considered" (TBC) category consists of
advisories, criteria, or guidance that
were developed by EPA, other federal
agencies, or states that may be useful in
developing CERCLA remedies.
(4) Only those state standards that are
promulgated, are identified by the state
in a timely manner, and are more
stringent than federal requirements may
be applicable or relevant and
appropriate. For purposes of
identification and notification of
promulgated state standards, the term
"promulgated" means that the standards
are of general applicability and are
legally enforceable.
(5) The lead agency and support
agency shall identify their specific
requirements that are applicable or
relevant and appropriate for a particular
site. These agencies shall notify each
other, in a timely manner as described
in § 300.515(d), of the requirements they
have determined to be applicable or
relevant and appropriate. When
identifying a requirement as an ARAR,
the lead agency and support agency
shall include a citation to the statute or
regulation from which the requirement is
derived.
(6) Notification of ARARs shall be
according to procedures and timeframes
specified in § 300.515 (d)(2) and (h)(2).
(h) Oversight. The lead agency may
provide oversight for actions taken by
potentially responsible parties to ensure
that a response is conducted consistent
with this part. The lead agency may also
monitor the actions of third parties
preauthorized under subpart H of this
part. EPA will provide oversight when
the response is pursuant to an EPA
order or federal consent decree.
(i) Other. (1) This subpart does not
establish any preconditions to
enforcement action by either the federal
or state governments to compel
response actions by potentially
responsible parties.
(2) While much of this subpart is
oriented toward federally funded
response actions, this subpart may be
used as guidance concerning methods
and criteria for response actions by
other parties under other funding
mechanisms. Except as provided in
subpart H of this part, nothing in this
part is intended to limit the rights of any
person to seek recovery of response
costs from responsible parties pursuant
to CERCLA section 107.
(3) Activities by the federal and state
governments in implementing this
subpart are discretionary governmental
functions. This subpart does not create
in any private party a right to federal
response or enforcement action. This
subpart does not create any duty of the
federal government to take any response
action at any particular time.
§ 300.405 Discovery or notification.
(a) A release may be discovered
through:
(1) A report submitted in accordance
with section 103(a) of CERCLA. i.e..
reportable quantities codified at 40 CFR
part 302;
(2) A report submitted to EPA in
accordance with section 103(c) of
CERCLA;
(3) Investigation by government
authorities conducted in accordance
with section 104(e) of CERCLA or other
statutory authority;
(4) Notification of a release by a
federal or state permit holder when
required by its permit;
(5) Inventory or survey efforts or
random or incidental observation
reported by government agencies or the
public;
(6] Submission of a citizen petition to
EPA or the appropriate federal facility
requesting a preliminary assessment, in
accordance with section 105(d) of
CERCLA; and
(7) Other sources.
(b) Any person in charge of a vessel o
a facility shall report releases as
described in paragraph (a)(l) of this
section to the National Response Center
(NRC). If direct reporting to the NRC is
no', practicable, reports may be made to
the United States Coast Guard (USCG)
on-scene coordinator (OSC) for the
geographic area where the release
occurs. The EPA predesignated OSC
may also be contacted through the
regional 24-hour emergency response
telephone number. All such reports shal
be promptly relayed to the NRC. If it is
not possible to notify the NRC or
predesignated OSC immediately, report
may be made immediately to the neares
USCG unit. In any event, such person ir
charge of the vessel or facility shall
notify the NRC as soon as possible.
(c) All other reports of releases
described under paragraph (a) of this
section, except releases reported under
paragraphs (a) (2) and (6) of this sectioi
shall, as appropriate, be made to the
NRC.
(d) The NRC will generally need
information that will help to
characterize the release. This will
include, but not be limited to: Location
of the release; type(s) of material(s)
released; an estimate of the quantity of
material released; possible source of til
release; and date and time of the
release. Reporting under paragraphs (b
-------
8842 Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
and (c) of this section shall not be
delayed due to incomplete notification
information.
(e) Upon receipt of a notification of a
release, the NRG shall promptly notify
the appropriate OSC. The OSC shall
notify the Governor, or designee, of the
state affected by the release.
(f)(l) When the OSC is notified of a
release that may require response
pursuant to § 300.415(b), a removal site
evaluation shall, as appropriate, be
promptly undertaken pursuant to
{ 300.410.
(2) When notification indicates that
removal action pursuant to § 300.415(b)
is not required, a remedial site
evaluation shall, if appropriate, be
undertaken by the lead agency pursuant
to § 300.420, if one has not already been
performed.
(3) If radioactive substances are
present in a release, the EPA
Radiological Response Coordinator
should be notified for evaluation and
assistance, consistent with § § 300.130(f)
and 300.145(f).
(g) Release notification made to the
NRC under this section does not relieve
the owner/operator of a facility from
any obligations to which it is subject
under SARA Title III or state law. In
particular, it does not relieve the owner/
operator from the requirements of
section 304 of SARA Title III and 40 CFR
part 355 and § 300.215(f) of this part for
notifying the community emergency
coordinator for the appropriate local
emergency planning committee of all
affected areas and the state emergency
response commission of any state
affected that there has been a release.
Federal agencies are not legally
obligated to comply with the
requirements of Title III of SARA.
§ 300.410 Removal site evaluation.
(a) A removal site evaluation includes
a removal preliminary assessment and,
if warranted, a removal site inspection.
(b) A removal site evaluation of a
release identified for possible CERCLA
response pursuant to § 300.415 shall, as
appropriate, be undertaken by the lead
agency as promptly as possible. The
lead agency may perform a removal
preliminary assessment in response to
petitions submitted by a person who is,
or may be, affected by a release of a
hazardous substance, pollutant, or
contaminant pursuant to § 300.420(b](5).
(c)(l) The lead agency shall, as
appropriate, base the removal
preliminary assessment on readily
available information. A removal
preliminary assessment may include,
but is not limited to:
(i) Identification of the source and
nature of the release or threat of release;
(ii) Evaluation by ATSDR or by other
sources, for example, state public health
agencies, of the threat to public health;
(iii) Evaluation of the magnitude of the
threat;
(iv) Evaluation of factors necessary to
make the determination of whether a
removal is necessary; and
(v) Determination of whether a
nonfederal party is undertaking proper
response.
(2) A removal preliminary assessment
of releases from hazardous waste
management facilities may include
collection or review of data such as site
management practices, information from
generators, photographs, analysis of
historical photographs, literature
searches, and personal interviews
conducted, as appropriate.
(d) A removal site inspection may be
performed if more information is
needed. Such inspection may include a
perimeter (i.e., off-site) or on-site
inspection, taking into consideration
whether such inspection can be
performed safely.
(e) A removal site evaluation shall be
terminated when the OSC or lead
agency determines:
(1) There is no release;
(2) The source is neither a vessel nor a
facility as defined in § 300.5 of the NCP;
(3) The release involves neither a
hazardous substance, nor a pollutant or
contaminant that may present an
imminent and substantial danger to
public health or welfare;
(4) The release consists of a situation
specified in § 300.400(b)(l) through (3)
subject to limitations on response;
(5) The amount, quantity, or
concentration released does not warrant
federal response;
(6) A party responsible for the release,
or any other person, is providing
appropriate response, and on-scene
monitoring by the government is not
required; or
(7) The removal site evaluation is
completed.
(f) The results of the removal site
evaluation shall be documented.
(g) If natural resources are or may be
injured by the release, the OSC or lead
agency shall ensure that state and
federal trustees of the affected natural
resources are promptly notified in order
that the trustees may initiate
appropriate actions, including those
identified in subpart G of this part. The
OSC or lead agency shall seek to
coordinate necessary assessments,
evaluations, investigations, and
planning with such state and federal
trustees.
(h) If the removal site evaluation
indicates that removal action under
§ 300.415 is not required, but that
remedial action under § 300.430 may be
necessary, the lead agency shall, as
appropriate, initiate a remedial site
evaluation pursuant to § 300.420.
§ 300.415 Removal action.
(a)(l) In determining the appropriate
extent of action to be taken in response
to a given release, the lead agency shall
first review the removal site evaluation,
any information produced through a
remedial site evaluation, if any has been
done previously, and the current site
conditions, to determine if removal
action is appropriate.
(2) Where the responsible parties are
known, an effort initially shall be made,
to the extent practicable, to determine
whether they can and will perform the
necessary removal action promptly and
properly.
(3) This section does not apply to
removal actions taken pursuant to
section 104(b) of CERCLA. The criteria
for such actions are set forth in section
104(b) of CERCLA.
(b)(l) At any release, regardless of
whether the site is included on the
National Priorities List, where the lead
agency makes the determination, based
on the factors in paragraph (b)(2) of this
section, that there is a threat to public
health or welfare or the environment,
the lead agency may take any
appropriate removal action to abate,
prevent, minimize, stabilize, mitigate, or
eliminate the release or the threat of
release.
(2) The following factors shall be
considered in determining the
appropriateness of a removal action
pursuant to this section:
(i) Actual or potential exposure to
nearby human populations, animals, or
the food chain from hazardous
substances or pollutants or
contaminants;
(ii) Actual or potential contamination
of drinking water supplies or sensitive
ecosystems;
(iii) Hazardous substances or
pollutants or contaminants in drums,
barrels, tanks, or other bulk storage
containers, that may pose a threat of
release;
(iv) High levels of hazardous
substances or pollutants or
contaminants in soils largely at or near
the surface, that may migrate;
(v) Weather conditions that may
cause hazardous substances or
pollutants or contaminants to migrate or
be released;
(vi) Threat of fire or explosion;
(vii) The availability of other
appropriate federal or state response
mechanisms to respond to the release;
and
-------
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
(viii) Other situations or factors that
may pose threats to public health or
welfare or the environment.
(3) If the lead agency determines that
a removal action is appropriate, actions
shall, as appropriate, begin as soon as
possible to abate, prevent, minimize,
stabilize, mitigate, or eliminate the
threat to public health or welfare or the
environment. The lead agency shall, at
the earliest possible time, also make any
necessary determinations pursuant to
paragraph (b)(4) of this section.
(4) Whenever a planning period of at
least six months exists before on-site
activities must be initiated, and the lead
agency determines, based on a site
evaluation, that a removal action is
appropriate:
(i) The lead agency shall conduct an
engineering evaluation/cost analysis
(EE/CA) or its equivalent. The EE/CA is
an analysis of removal alternatives for a
site.
(ii) If environmental samples are to be
collected, the lead agency shall develop
sampling and analysis plans that shall
provide a process for obtaining data of
sufficient quality and quantity to satisfy
data needs. Sampling and analysis plans
shall be reviewed and approved by EPA.
The sampling and analysis plans shall
consist of two parts:
(A) The field sampling plan, which
describes the number, type, and location
of samples and the type of analyses; and
(B) The quality assurance project plan,
which describes policy, organization,
and functional activities and the data
quality objectives and measures
necessary to achieve adequate data for
use in planning and documenting the
removal action.
(5) Fund-financed removal actions,
other than those authorized under
section 104(b) of CERCLA. shall be
terminated after $2 million has been
obligated for the action or 12 months
have elapsed from the date that removal
activities begin on-site, unless the lead
agency determines that:
(i) There is an immediate risk to
public health or welfare or the
environment; continued response
actions are immediately required to
prevent, limit, or mitigate an emergency;
and such assistance will not otherwise
be provided on a timely basis; or
(ii) Continued response action is
otherwise appropriate and consistent
with the remedial action to be taken.
(c) Removal actions shall, to the
extent practicable, contribute to the
efficient performance of any anticipated
long-term remedial action with respect
to the release concerned.
(d) The following removal actions are,
as a general rule, appropriate in the
types of situations shown; however, this
list is not exhaustive and is not intended
to prevent the lead agency from taking
any other actions deemed necessary
under CERCLA or other appropriate
federal or state enforcement or response
authorities, and the list does not create a
duty on the lead agency to take action at
any particular time:
(1) Fences, warning signs, or other
security or site control precautions—
where humans or animals have access
to the release;
(2) Drainage controls, for example,
run-off or run-on diversion—where
needed to reduce migration of
hazardous substances or pollutants or
contaminants off-site or to prevent
precipitation or run-off from other
sources, for example, flooding, from
entering the release area from other
areas;
(3) Stabilization of berms, dikes, or
impoundments or drainage or closing of
lagoons—where needed to maintain the
integrity of the structures;
(4) Capping of contaminated soils or
sludges—where needed to reduce
migration of hazardous substances or
pollutants or contaminants into soil,
ground or surface water, or air,
(5) Using chemicals and other
materials to retard the spread of the
release or to mitigate its effects—where
the use of such chemicals will reduce
the spread of the release;
(6] Excavation, consolidation, or
removal of highly contaminated soils
from drainage or other areas—where
such actions will reduce the spread of,
or direct contact with, the
contamination;
(7) Removal of drums, barrels, tanks,
or other bulk containers that contain or
may contain hazardous substances or
pollutants or contaminants—where it
will reduce the likelihood of spillage;
leakage; exposure to humans, animals,
or food chain; or fire or explosion;
(8) Containment, treatment, disposal.
or incineration of hazardous materials—
where needed to reduce the likelihood
of human, animal, or food chain
exposure; or
(9) Provision of alternative water
supply—where necessary immediately
to reduce exposure to contaminated
household water and continuing until
such time as local authorities can satisfy
the need for a permanent remedy.
(e) Where necessary to protect public
health or welfare, the lead agency shall
request that FEMA conduct a temporary
relocation or that state/local officials
conduct an evacuation.
(f) If the lead agency determines that
the removal action will not fully address
the threat posed by the release and the
release may require remedial action, the
lead agency shall ensure an orderly
transition from removal to remedial
response activities.
(g) Removal actions conducted by
states under cooperative agreements,
described in subpart F of this part, shall
comply with all requirements of this
section.
(h) Facilities operated by a state or
political subdivision at the time of
disposal require a state cost share of at
least 50 percent of Fund-financed
response costs if a Fund-financed
remedial action is conducted.
(i) Fund-financed removal actions
under CERCLA section 104 and removal
actions pursuant to CERCLA section 106
shall, to the extent practicable
considering the exigencies of the
situation, attain applicable or relevant
and appropriate requirements under
federal environmental or state
environmental or facility siting laws.
Waivers described in
§ 300.430(f)(l)(ii)(C) may be used for
removal actions. Other federal and state
advisories, criteria, or guidance may, as
appropriate, be considered in
formulating the removal action (see
§ 300.400(g)(3)). In determining whether
compliance with ARARs is practicable,
the lead agency may consider
appropriate factors, including:
(1) The urgency of the situation; and
(2) The scope of the removal action to
be conducted.
(j) Removal actions pursuant to
section 106 or 122 of CERCLA are not
subject to the following requirements of
this section:
(1) Section 300.415(a}(2) requirement
to locate responsible parties and have
them undertake the response;
(2) Section 300.415(b){2)(vii)
requirement to consider the availability
of other appropriate federal or state
response and enforcement mechanisms
to respond to the release;
(3) Section 300.415(b)(5) requirement
to terminate response after $2 million
has been obligated or 12 months have
elapsed from the date of the initial
response; and
(4) Section 300.415(f) requirement to
assure an orderly transition from
removal to remedial action.
(k) To the extent practicable,
provision for post-removal site control
following a Fund-financed removal
action at both NPL and non-NPL sites is
encouraged to be made prior to the
initiation of the removal action. Such
post-removal site control includes
actions necessary to ensure the
effectiveness and integrity of the
removal action after the completion of
the on-site removal action or after the $2
million or 12-month statutory limits are
reached for sites that do not meet the
-------
8844 Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
exemption criteria in paragraph (b)(5) of
this section. Post-removal site control
may be conducted by:
(1) The affected state or political
subdivision thereof or local units of
government for any removal;
(2) Potentially responsible parties; or
(3) EPA's remedial program for some
federal-lead Fund-financed responses at
NPL sites.
(1) OSCs/RPMs conducting removal
actions shall submit OSC reports to the
RRT as required by $ 300.165.
(m) Community relations in removal
actions. (1) In the case of all removal
actions taken pursuant to § 300.415 or
CERCLA enforcement actions to compel
removal response, a spokesperson shall
be designated by the lead agency. The
spokesperson shall inform the
community of actions taken, respond to
inquiries, and provide information
concerning the release. All news
releases or statements made by
participating agencies shall be
coordinated with the OSC/RPM. The
spokesperson shall notify, at a
minimum, immediately affected citizens,
state and local officials, and, when
appropriate, civil defense or emergency
management agencies.
(2) For actions where, based on the
site evaluation, the lead agency
determines that a removal is
appropriate, and that less than six
months exists before on-site removal
activity must begin, the lead agency
shall:
(i) Publish a notice of availability of
the administrative record file
established pursuant to § 300.820 in a
major local newspaper of general
circulation within 60 days of initiation of
on-site removal activity;
(ii) Provide a public comment period,
as appropriate, of not less than 30 days
from the time the administrative record
file is made available for public
inspection, pursuant to § 300.820(b)(2];
and
(iii) Prepare a written response to
significant comments pursuant to
5 300.820(b)(3).
(3) For removal actions where on-site
action is expected to extend beyond 120
days from the initiation of on-site
removal activities, the lead agency shall
by the end of the 120-day period:
(i) Conduct interviews with local
officials, community residents, public
interest groups, or other interested or
affected parties, as appropriate, to
solicit their concerns, information needs,
and how or when citizens would like to
be involved in the Superfund process;
(ii) Prepare a formal community
relations plan (CRP) based on the
community interviews and other
relevant information, specifying the
community relations activities that the
lead agency expects to undertake during
the response; and
(iii) Establish at least one local
information repository at or near the
location of the response action. The
information repository should contain
items made available for public
information. Further, an administrative
record file established pursuant to
subpart I for all removal actions shall be
available for public inspection in at
least one of the repositories. The lead
agency shall inform the public of the
establishment of the information
repository and provide notice of
availability of the administrative record
file for public review. All items in the
repository shall be available for public
inspection and copying.
(4) Where, based on the site
evaluation, the lead agency determines
that a removal action is appropriate and
that a planning period of at least six
months exists prior to initiation of the
on-site removal activities, the lead
agency shall at a minimum:
(i) Comply with the requirements set
forth in paragraphs (m)(3)(i), (ii), and (iii)
of this section, prior to the completion of
the engineering evaluation/cost analysis
(EE/CA), or its equivalent, except that
the information repository and the
administrative record file will be
established no later than when the EE/
CA approval memorandum is signed;
(ii) Publish a notice of availability and
brief description of the EE/CA in a
major local newspaper of general
circulation pursuant to § 300.820;
(iii) Provide a reasonable opportunity,
not less than 30 calendar days, for
submission of written and oral
comments after completion of the EE/
CA pursuant to § 300.820(a). Upon
timely request, the lead agency will
extend the public comment period by a
minimum of 15 days; and
(iv) Prepare a written response to
significant comments pursuant to
§ 300.820(a).
§ 300.420 Remedial site evaluation.
(a) General. The purpose of this
section is to describe the methods,
procedures, and criteria the lead agency
shall use to collect data, as required,
and evaluate releases of hazardous
substances, pollutants, or contaminants.
The evaluation may consist of two
steps: a remedial preliminary
assessment (PA) and a remedial site
inspection (SI).
(b) Remedial preliminary assessment.
(1) The lead agency shall perform a
remedial PA on all sites in CERCLIS as
defined in § 300.5 to:
(i) Eliminate from further
consideration those sites that pose no
threat to public health or the•
environment;
(ii) Determine if there is any potential
need for removal action;
(iii) Set priorities for site inspections;
and
(iv) Gather existing data to facilitate
later evaluation of the release pursuant
to the Hazard Ranking System (HRS) if
warranted.
(2) A remedial PA shall consist of a
review of existing information about a
release such as information on the
pathways of exposure, exposure targets,
and source and nature of release. A
remedial PA shall also include an off-
site reconnaissance as appropriate. A
remedial PA may include an on-site
reconnaissance where appropriate.
(3) If the remedial PA indicates that a
removal action may be warranted, the
lead agency shall initiate removal
evaluation pursuant to § 300.410.
(4) In performing a remedial PA, the
lead agency may complete the EPA
Preliminary Assessment form, available
from EPA regional offices, or its
equivalent, and shall prepare a PA
report, which shall include:
(i) A description of the release;
(ii) A description of the probable
nature of the release; and
(iii) A recommendation on whether
further action is warranted, which lead
agency should conduct further action,
and whether an SI or removal action or
both should be undertaken.
(5) Any person may petition the lead
federal agency (EPA or the appropriate
federal agency in the case of a release
or suspected release from a federal
facility), to perform a PA of a release
when such person is, or may be, affected
by a release of a hazardous substance,
pollutant, or contaminant. Such petitions
shall be addressed to the EPA Regional
Administrator for the region in which
the release is located, except that
petitions for PAs involving federal
facilities should be addressed to the
head of the appropriate federal agency.
(i) Petitions shall be signed by the
petitioner and shall contain the
following:
(A) The full name, address, and phone
number of petitioner;
(B) A description, as precisely as
possible, of the location of the release;
and
(C) How the petitioner is or may be
affected by the release.
(ii) Petitions should also contain the
following information to the extent
available:
(A) What type of substances were or
may be released;
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations 8845
(B) The nature of activities that have
occurred where the release is located;
and
(C) Whether local and state
authorities have been contacted about
the release.
(iii) The lead federal agency shall
complete a remedial or removal PA
within one year of the date of receipt of
a complete petition pursuant to
paragraph (b)(5) of this section, if one
has not been performed previously,
unless the lead federal agency
determines that a PA is not appropriate.
Where such a determination is made,
the lead federal agency shall notify the
petitioner and will provide a reason for
the determination.
(iv) When determining if performance
of a PA is appropriate, the lead federal
agency shall take into consideration:
(A) Whether there is information
indicating that a release has occurred or
there is a threat of a release of a
hazardous substance, pollutant, or
contaminant; and
(B) Whether the release is eligible for
response under CERCLA.
(c) Remedial site inspection. [1] The
lead agency shall perform a remedial SI
as appropriate to:
(i) Eliminate from further
consideration those releases that pose
no significant threat to public health or
the environment;
(ii) Determine the potential need for
removal action;
(iii) Collect or develop additional
data, as appropriate, to evaluate the
release pursuant to the MRS; and
(iv) Collect data in addition to that
required to score the release pursuant to
the HRS, as appropriate, to better
characterize the release for more
effective and rapid initiation of the RI/
FS or response under other authorities.
(2) The remedial SI shall build upon
the information collected in the remedial
PA. The remedial SI shall involve, as
appropriate, both on- and off-site field
investigatory efforts, and sampling.
(3) If the remedial SI indicates that
removal action may be appropriate, the
lead agency shall initiate removal site
evaluation pursuant to § 300.410.
(4) Prior to conducting field sampling
as part of site inspections, the lead
agency shall develop sampling and
analysis plans that shall provide a
process for obtaining data of sufficient
quality and quantity to satisfy data
needs. The sampling and analysis plans
shall consist of two parts:
(i) The Held sampling plan, which
describes the number, type, and location
of samples, and the type of analyses,
and
(ii) The quality assurance project plan
(QAPP), which describes policy,
organization, and functional activities,
and the data quality objectives and
measures necessary to achieve adequate
data for use in site evaluation and
hazard ranking system activities.
(5) Upon completion of a remedial SI,
the lead agency shall prepare a report
that includes the following:
(i) A description/history/nature of
waste handling;
(ii) A description of known
contaminants;
(iii) A description of pathways of
migration of contaminants;
(iv) An identification and description
of human and environmental targets;
and
(v) A recommendation on whether
further action is warranted.
§ 300.425 Establishing remedial priorities.
(a) GeneraL The purpose of this
section is to identify the criteria as well
as the methods and procedures EPA
uses to establish its priorities for
remedial actions.
(b) National Priorities List. The NPL is
the list of priority releases for long-term
remedial evaluation and response.
(1) Only those releases included on
the NPL shall be considered eligible for
Fund-financed remedial action. Removal
actions (including remedial planning
activities, RI/FSs, and other actions
taken pursuant to CERCLA section
104(b)) are not limited to NPL sites.
(2) Inclusion of a release on the NPL
does not imply that monies will be
expended, nor does the rank of a release
on the NPL establish the precise
priorities for the allocation of Fund
resources. EPA may also pursue other
appropriate authorities to remedy the
release, including enforcement actions
under CERCLA and other laws. A site's
rank on the NPL serves, along with other
factors, including enforcement actions,
as a basis to guide the allocation of
Fund resources among releases.
(3) Federal facilities that meet the
criteria identified in paragraph (c) of this
section are eligible for inclusion on the
NPL Except as provided by CERCLA
sections lll(e)(3) and lll(c), federal
facilities are not eligible for Fund-
financed remedial actions.
(4) Inclusion on the NPL is not a
precondition to action by the lead
agency under CERCLA sections 106 or
122 or to action under CERCLA section
107 for recovery of non-Fund-financed
costs or Fund-financed costs other than
Fund-financed remedial construction
costs.
(c) Methods for determining eligibility
for NPL. A release may be included on
the NPL if the release meets one of the
following criteria:
(l).The release score's sufficiently high
pursuant to the Hazard Ranking System
described in Appendix A to this part.
(2) A state (not including Indian
tribes) has designated a release as its
highest priority. States may make only
one such designation; or
(3) The release satisfies all of the
following criteria:
(i) The Agency for Toxic Substances
and Disease Registry has issued a health
advisory that recommends dissociation
of individuals from the release;
(ii) EPA determines that the release
poses a significant threat to public
health; and
(iii) EPA anticipates that it will be
more cost-effective to use its remedial
authority than to use removal authority
to respond to the release.
(d) Procedures for placing sites on the
NPL. Lead agencies may submit
candidates to EPA by scoring the
release using the HRS and providing the
appropriate backup documentation.
(1) Lead agencies may submit HRS
scoring packages to EPA anytime
throughout the year.
(2) EPA shall review lead agencies'
HRS scoring packages and revise them
as appropriate. EPA shall develop any
additional HRS scoring packages on
releases known to EPA.
(3) EPA shall comp'ile the NPL based
on the methods identified in paragraph
(c) of this section.
(4) EPA shall update the NPL at least
once a year.
(5) To ensure public involvement
during the proposal to add a release to
the NPL, EPA shall:
(i) Publish the proposed rule in the
Federal Register and solicit comments
through a public comment period; and
(ii) Publish the final rule in the Federal
Register, and make available a response
to each significant comment and any
significant new data submitted during
the comment period.
(6) Releases may be categorized on
the NPL when deemed appropriate by
EPA.
(e) Deletion from the NPL. Releases
may be deleted from or recategorized on
the NPL where no further response is
appropriate.
(1) EPA shall consult with the state on
proposed deletions from the NPL prior to
developing the notice of intent to delete.
In making a determination to delete a
release from the NPL, EPA shall
consider, in consultation with the state.
whether any of the following criteria has
been met:
(i) Responsible parties or other
persons have implemented all
appropriate response actions required;
-------
8846 Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
(ii) Ail appropriate Fund-financed
response under CERCLA has been
implemented, and no further response
action by responsible parties is
appropriate; or
(iii) The remedial investigation has
shown that the release poses no
significant threat to public health or the
environment and, therefore, taking of
remedial measures is not appropriate.
(2) Releases shall not be deleted from
the NPL until the state in which the
release was located has concurred on
the proposed deletion. EPA shall
provide the state 30 working days for
review of the deletion notice prior to its
publication in the Federal Register.
(3) All releases deleted from the NPL
are eligible for further Fund-financed
remedial actions should future
conditions warrant such action.
Whenever there is a significant release
from a site deleted from the NPL, the
site shall be restored to the NPL without
application of the HRS.
(4) To ensure public involvement
during the proposal to delete a release
from the NPL, EPA shall:
(i) Publish a notice of intent to delete
in the Federal Register and solicit
comment through a public comment
period of a minimum of 30 calendar
days:
(ii) In a major local newspaper of
general circulation at or near the release
that is proposed for deletion, publish a
notice of availability of the notice of
intent to delete;
(Hi) Place copies of information
supporting the proposed deletion in the
information repository, described in
§ 300.430(c)(2)(iii), at or near the release
proposed for deletion. These items shall
be available for public inspection and
copying; and
(iv) Respond to each significant
comment and any significant new data
submitted during the comment period
and include this response document in
the final deletion package.
(5) EPA shall place the final deletion
package in the local information
repository once the notice of final
deletion has been published in the
Federal Register.
§ 300.430 Remedial investigation/
feasibility study and selection of remedy.
(a) General—(1) Introduction. The
purpose of the remedy selection process
is to implement remedies that eliminate,
reduce, or control risks to human health
and the environment. Remedial actions
are to be implemented as soon as site
data and information make it possible to
do so. Accordingly, EPA has established
the following program goal,
expectations, and program management
principles to assist in the identification
and implementation of appropriate
remedial actions.
(i) Program goal. The national goal of
the remedy selection process is to select
remedies that are protective of human
health and the environment, that
maintain protection over time, and that
minimize untreated waste.
(ii) Program management principles.
EPA generally shall consider the
following general principles of program
management during the remedial
process:
(A) Sites should generally be
remediated in operable units when early
actions are necessary or appropriate to
achieve significant risk reduction
quickly, when phased analysis and
cesponse is necessary or appropriate
given the size or complexity of the site,
or to expedite the completion of total
site cleanup.
(B) Operable units, including interim
action operable units, should not be
inconsistent with nor preclude
implementation of the expected final
remedy.
(C) Site-specific data needs, the
evaluation of alternatives, and the
documentation of the selected remedy
should reflect the scope and complexity
of the site problems being addressed.
(iii) Expectations. EPA generally shall
consider the following expectations in
developing appropriate remedial
alternatives:
(A) EPA expects to use treatment to
address the principal threats posed by a
site, wherever practicable. Principal
threats for which treatment is most
likely to be appropriate include liquids,
areas contaminated with high
concentrations of toxic compounds, and
highly mobile materials.
(B) EPA expects to use engineering
controls, such as containment, for waste
that poses a relatively low long-term
threat or where treatment is
impracticable.
(C) EPA expects to use a combination
of methods, as appropriate, to achieve
protection of human health and the
environment. In appropriate site
situations, treatment of the principal
threats posed by a site, with priority
placed on treating waste that is liquid,
highly toxic or highly mobile, will be
combined with engineering controls
(such as containment) and institutional
controls, as appropriate, for treatment
residuals and untreated waste.
(D) EPA expects to use institutional
controls such as water use and deed
restrictions to supplement engineering
controls as appropriate for short- and
long-term management to prevent or
limit exposure to hazardous substances,
pollutants, or contaminants. Institutional
controls may be used during the conduct
of the remedial investigation/feasibility
study (RI/FS) and implementation of the
remedial action and, where necessary,
as a component of the completed
remedy. The use of institutional controls
shall not substitute for active response
measures (e.g., treatment and/or
containment of source material,
restoration of ground waters to their
beneficial uses) as the sole remedy
unless such active measures are
determined not to be practicable, based
on the balancing of trade-offs among
alternatives that is conducted during the
selection of remedy.
(E) EPA expects to consider using
innovative technology when such
technology offers the potential for
comparable or superior treatment
performance or implementability, fewer
or lesser adverse impacts than other
available approaches, or lower costs for
similar levels of performance than
demonstrated technologies.
(F) EPA expects to return usable
ground waters to their beneficial uses
wherever practicable, within a
timeframe that is reasonable given the
particular circumstances of the site.
When restoration of ground water to
beneficial uses is not practicable, EPA
expects to prevent further migration of
the plume, prevent exposure to the
contaminated ground water, and
evaluate further risk reduction.
(2) Remedial investigation/feasibility
study. The purpose of the remedial
investigation/feasibility study (RI/FS) is
to assess site conditions and evaluate
alternatives to the extent necessary to
select a remedy. Developing and
conducting an RI/FS generally includes
the following activities: project scoping,
data collection, risk assessment,
treatability studies, and analysis of
alternatives. The scope and timing of
these activities should be tailored to the
nature and complexity of the problem
and the response alternatives being
considered.
(b) Scoping. In implementing this
section, the lead agency should consider
the program goal, program management
principles, and expectations contained
in this rule. The investigative and
analytical studies should be tailored to
site circumstances so that the scope and
detail of the analysis is appropriate to
the complexity of site problems being
addressed. During scoping, the lead and
support agencies shall confer to identify
the optimal set and sequence of actions
necessary to address site problems.
Specifically, the lead agency shall:
(1) Assemble and evaluate existing
data on the site, including the results of
any removal actions, remedial
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations 8847
preliminary assessment and site
inspections, and the NPL listing process.
(2) Develop a conceptual
understanding of the site based on the
evaluation of existing data described in
paragraph (b)(l) of this section.
(3) Identify likely response scenarios
and potentially applicable technologies
and operable units that may address site
problems.
(4) Undertake limited data collection
efforts or studies where this information
will assist in scoping the RI/FS or
accelerate response actions, and begin
to identify the need for treatability
studies, as appropriate.
(5) Identify the type, quality, and
quantity of the data that will be
collected during the RI/FS to support
decisions regarding remedial response
activities.
(6) Prepare site-specific health and
safety plans that shall specify, at a
minimum, employee training and
protective equipment, medical
surveillance requirements, standard
operating procedures, and a contingency
plan that conforms with 29 CFR 1910.120
(1)(1) and (1)(2).
{7} If natural resources art or may be
injured by the release, ensure that state
and federal trustees of the affected
natural resources have been notified in
order that the trustees may initiate
appropriate actions, including those
identified in subpart G of this part. The
lead agency shall seek to coordinate
necessary assessments, evaluations,
investigations, and planning with such
state and federal trustees.
(8) Develop sampling and analysis
plans that shall provide a process for
obtaining data of sufficient quality and
quantity to satisfy data needs. Sampling
and analysis plans shall be reviewed
and approved by EPA. The sampling
and analysis plans shall consist of two
parts:
(ij The field sampling plan, which
describes the number, type, and location
of samples and the type of analyses; and
(ii) The quality assurance project plan,
which describes policy, organization,
and functional activities and the data
quality objectives and measures
necessary to achieve adequate data for
use in selecting the appropriate remedy.
(9] Initiate the identification of
potential federal and state ARARs and,
as appropriate, other criteria, advisories,
or guidance to be considered.
(c) Community relations. (1) The
community relations requirements
described in this section apply to all
remedial activities undertaken pursuant
to CERCLA section 104 and to section
106 or section 122 consent orders or
decrees, or section 106 administrative
orders.
(2) The lead agency shall provide for
the conduct of the following community
relations activities, to the extent
practicable, prior to commencing field
work for the remedial investigation:
(i) Conducting interviews with local
officials, community residents, public
interest groups, or other interested or
affected parties, as appropriate, to
solicit their concerns and information
needs, and to learn how and when
citizens would like to be involved in the
Superfund process.
(ii) Preparing a formal community
relations plan (CRP), based on the
community interviews and other
relevant information, specifying the
community relations activities that the
leed agency expects to undertake during
the remedial response. The purpose of
the CRP is to:
(A) Ensure the public appropriate
opportunities for involvement in a wide
variety of site-related decisions,
including site analysis and
characterization, alternatives analysis,
and selection of remedy;
(B) Determine, based on community
interviews, appropriate activities to
ensure such public involvement, and
(C) Provide appropriate opportunities
for the community to learn about the
site.
(iii) Establishing at least one local
information repository at or near the
location of the response action. Each
information repository should contain a
copy of items made available to the
public, including information that
describes the technical assistance grants
application process. The lead agency
shall inform interested parties of the
establishment of the information
repository.
(iv) Informing the community of the
availability of technical assistance
grants.
(3) For PRP actions, the lead agency
shall plan and implement the community
relations program at a site. PRPs may
participate in aspects of the community
relations program at the discretion of
and with oversight by the lead agency.
(4) The lead agency may conduct
technical discussions involving PRPs
and the public. These technical
discussions may be held separately
from, but contemporaneously with, the
negotiations/settlement discussions.
(5) In addition, the following
provisions specifically apply to
enforcement actions:
(i) Lead agencies entering into an
enforcement agreement with de minimis
parties under CERCLA section 122(g) or
cost recovery settlements under section
122(h) shall publish a notice of the
proposed agreement in the Federal
Register at least 30 days before the
agreement becomes final, as required by
section 122(i). The notice must identify
the name of the facility and the parties
to the proposed agreement and must
allow an opportunity for comment and
consideration of comments; and
(ii) Where the enforcement agreement
is embodied in a consent decree, public
notice and opportunity for public
comment shall be provided in
accordance with 28 CFR 50.7.
(d) Remedial investigation. (1) The
purpose of the remedial investigation
(RI) is to collect data necessary to
adequately characterize the site for the
purpose of developing and evaluating
effective remedial alternatives. To
characterize the site, the lead agency
shall, as appropriate, conduct field
investigations, including treatability
studies, and conduct a baseline risk
assessment. The RI provides information
to assess the risks to human health and
the environment and to support the
development, evaluation, and selection
of appropriate response alternatives.
Site characterization may be conducted
in one or more phases to focus sampling
efforts and increase the efficiency of the
investigation. Because estimates of
actual or potential exposures and
associated impacts on human and
environmental receptors may be refined
throughout the phases of the RI as new
information is obtained, site
characterization activities should be
fully integrated with the development
and evaluation of alternatives in the
feasibility study. Bench- or pilot-scale
treatability studies shall be conducted,
when appropriate and practicable, to
provide additional data for the detailed
analysis and to support engineering
design of remedial alternatives.
(2) The lead agency shall characterize
the nature of and threat posed by the
hazardous substances and hazardous
materials and gather data necessary to
assess the extent to which the release
poses a threat to human health or the
environment or to support the analysis
and design of potential response actions
by conducting, as appropriate, field
investigations to assess the following
factors:
(i) Physical characteristics of the site,
including important surface features,
soils, geology, hydrogeology,
meteorology, and ecology;
(ii) Characteristics or classifications
of air, surface water, and ground water,
(iii) The general characteristics of the
waste, including quantities, state,
concentration, toxicity, propensity to
bioaccumulate, persistence, and
mobility;
-------
8848
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
(iv) The extent to which the source
can be adequately identified and
characterized;
(v) Actual and potential exposure
pathways through environmental media;
(vi) Actual and potential exposure
routes, for example, inhalation and
ingestion; and
(vii) Other factors, such as sensitive
populations, that pertain to the
characterization of the site or support
the analysis of potential remedial action
alternatives.
(3) The lead and support agency shall
identify their respective potential
ARARs related to the location of and
contaminants at the site in a timely
manner. The lead and support agencies
may also, as appropriate, identify other
pertinent advisories, criteria, or
guidance in a timely manner (see
§ 300.400(g)(3)).
(4) Using the data developed under
paragraphs (d) (1) and (Z) of this section,
the lead agency shall conduct a site-
specific baseline risk assessment to
characterize the current and potential
threats to human health and the
environment that may be posed by
contaminants migrating to ground water
or surface water, releasing to air,
leaching through soil, remaining in the
soil, and bioaccumulating in the food
chain. The results of the baseline risk
assessment will help establish
acceptable exposure levels for use in
developing remedial alternatives in the
FS, as described in paragraph (e) of this
section.
(e) Feasibility study. (I) The primary
objective of the feasibility study {FS) is
to ensure that appropriate remedial
alternatives are developed and
evaluated such that relevant information
concerning the remedial action options
can be presented to a decision-maker
and an appropriate remedy selected.
The lead agency may develop a
feasibility study to address a specific
site problem or the entire site. The
development and evaluation of
alternatives shall reflect the scope and
complexity of the remedial action under
consideration and the site problems
being addressed. Development of
alternatives shall be fully integrated
with the site characterization activities
of the remedial investigation described
in paragraph (d) of this section. The lead
agency shall include an alternatives
screening step, when needed, to select a
reasonable number of alternatives for
detailed analysis.
(2) Alternatives shall be developed
that protect human health and the
environment by recycling waste or by
eliminating, reducing, and/or controlling
risks posed through each pathway by a
site. The number and type of
alternatives to be analyzed shall be
determined at each site, taking into
account the scope, characteristics, and
complexity of the site problem that is
being addressed. In developing and, as
appropriate, screening die alternatives,
the lead agency shall:
(i) Establish remedial action
objectives specifying contaminants and
media of concern, potential exposure
pathways, and remediation goals.
Initially, preliminary remediation goals
are developed based on readily
available information, such as chemical-
specific ARARs or other reliable
information. Preliminary remediation
goals should be modified, as necessary,
as more information becomes available
during the RI/FS. Final remediation
goals will be determined when the
remedy is selected. Remediation goals
shall establish acceptable exposure
levels that are protective of human
health and the environment and shall be
developed by considering the following:
(A) Applicable or relevant and
appropriate requirements under federal
environmental or state environmental or
facility siting laws, if available, and the
following factors:
(1) For systemic toxicants, acceptable
exposure levels shall represent
concentration levels to which the human
population, including sensitive
subgroups, may be exposed without
adverse effect during a lifetime or part
of a lifetime, incorporating an adequate
margin of safety;
(2) For known or suspected
carcinogens, acceptable exposure levels
jare generally concentration levels that
represent an excess upper bound
lifetime cancer risk to an individual of
between 10'* and 1CT6 using information
on the relationship between dose and
response. The 10"'risk level shall be
used as the point of departure for
determining remediation goals for
alternatives when ARARs are not
available or are not sufficiently
protective because of the presence of
multiple contaminants at a site or
multiple pathways of exposure;
(3) Factors related to technical
limitations such as detection/
quantification limits for contaminants;
{4} Factors related to uncertainty; and
(5) Other pertinent information.
(B) Maximum contaminant level goals
(MCLGs), established under the Safe
Drinking Water Act, that are set at
levels above zero, shall be attained by
remedial actions for ground or surface
waters that are current or potential
sources of drinking water, where the
MCLCs are relevant and appropriate
under the circumstances of the release
based on the factors in § 300.400(g)(2). If
an MCLG is determined not to be
relevant and appropriate, the
corresponding maximum contaminant
level (MCL) shall be attained where
relevant and appropriate to the
circumstances of the release.
(C) Where the MCLG for a
contaminant has been set at a level of
zero, the MCL promulgated for that
contaminant under the Safe Drinking
Water Act shall be attained by remedial
actions for ground or surface waters that
are current or potential sources of
drinking water, where the MCL is
relevant and appropriate under the
circumstances of the release based on
the factors in 5 300.400(g)(2).
(D) In cases involving multiple
contaminants or pathways where
attainment of chemical-specific ARARs
will result in cumulative risk in excess
of 1CT4, criteria in paragraph (e)(2)(i)(A)
of this section may also be considered
when determining the cleanup level to
be attained.
(E) Water quality criteria established
under sections 303 or 304 of the Clean
Water Act shall be attained where
relevant and appropriate under the
circumstances of the release.
(F) An alternate concentration limit
(ACL) may be established in accordance
with CERCLA section 121(d)(2)(B)(ii).
(G) Environmental evaluations shall
be performed to assess threats to the
environment, especially sensitive
habitats and critical habitats of species
protected under the Endangered Species
Act.
(ii) Identify and evaluate potentially
suitable technologies, including
innovative technologies;
(iii) Assemble suitable technologies
into alternative remedial actions.
(3) For source control actions, the lead
agency shall develop, as appropriate:
(i) A range of alternatives in which
treatment that reduces the toxicity,
mobility, or volume of the hazardous
substances, pollutants, or contaminants
is a principal element. As appropriate,
this range shall include an alternative
that removes or destroys hazardous
substances, pollutants, or contaminants
to the maximum extent feasible.
eliminating or minimizing, to the degree
possible, the need for long-term
management. The lead agency also shall
develop, as appropriate, other
alternatives which, at a minimum, treat
the principal threats posed by the site
but vary in the degree of treatment
employed and the quantities and
characteristics of the treatment
residuals and untreated waste that must
be managed; and
(ii) One or more alternatives that
involve little or no treatment, but
provide protection of human health and
-------
Federal Register / Vol. 55, No. 46 / Thursday. March 8. 1990 / Rules and Regulations 8849
the environment primarily by preventing
or controlling exposure to hazardous
substances, pollutants, or contaminants,
through engineering controls, for
example, containment, and, as
necessary, institutional controls to
protect human health and the
environment and to assure continued
effectiveness of the response action.
(4) For ground-water response actions,
the lead agency shall develop a limited
number of remedial alternatives that
attain site-specific remediation levels
within different restoration time periods
utilizing one or more different
technologies.
(S) The lead agency shall develop one
or more innovative treatment
technologies for further consideration if
those technologies offer the potential for
comparable or superior performance or
implementability; fewer or lesser
adverse impacts than other available
approaches; or lower costs for similar
levels of performance than
demonstrated treatment technologies.
(6] The no-action alternative, which
may be no further action if some
removal or remedial action has already
occurred at the site, shall be developed.
(7) As appropriate, and to the extent
sufficient information is available, the
short- and long-term aspects of the
following three criteria shall be used to
guide the development and screening of
remedial alternatives:
(i) Effectiveness. This criterion
focuses on the degree to which an
alternative reduces toxicity, mobility, or
volume through treatment, minimizes
residual risks and affords long-term
protection, complies with ARARs,
minimizes short-term impacts, and how
quickly it achieves protection.
Alternatives providing significantly less
effectiveness than other, more promising
alternatives may be eliminated.
Alternatives that do not provide
adequate protection of human health
and the environment shall be eliminated
from further consideration.
(ii) Implementability. This criterion
focuses on the technical feasibility and
availability of the technologies each
alternative would employ and the
administrative feasibility of
implementing the alternative.
Alternatives that are technically or
administratively infeasible or that
would require equipment, specialists, or
facilities that are not available within a
reasonable period of time may be
eliminated from further consideration.
(iii) Cost. The costs of construction
and any long-term costs to operate and
maintain the alternatives shall be
considered. Costs that are grossly
excessive compared to the overall
effectiveness of alternatives may be
considered as one of several factors
used to eliminate alternatives.
Alternatives providing effectiveness and
implementability similar to that of
another alternative by employing a
similar method of treatment or
engineering control, but at greater cost,
may be eliminated.
(8) The lead agency shall notify the
support agency of the alternatives that
will be evaluated in detail to facilitate
the identification of ARARs and, as
appropriate, pertinent advisories,
criteria, or guidance to be considered.
(9) Detailed analysis of alternatives.
(i) A detailed analysis shall be
conducted on the limited number of
alternatives that represent viable
approaches to remedial action after
evaluation in the screening stage. The
lead and support agencies must identify
their ARARs related to specific actions
in a timely manner and no later than the
early stages of the comparative analysis.
The lead and support agencies may also,
as appropriate, identify other pertinent
advisories, criteria, or guidance in a
timely manner.
(ii) The detailed analysis consists of
an assessment of individual alternatives
against each of nine evaluation criteria
and a comparative analysis that focuses
upon the relative performance of each
alternative against those criteria.
(iii) Nine criteria for evaluation. The
analysis of alternatives under review
shall reflect the scope and complexity of
site problems and alternatives being
evaluated and consider the relative
significance of the factors within each
criteria. The nine evaluation criteria are
as follows:
(A) Overall protection of human
health and the environment.
Alternatives shall be assessed to
determine whether they can adequately
protect human health and the
environment, in both the short- and
long-term, from unacceptable risks
posed by hazardous substances,
pollutants, or contaminants present at
the site by eliminating, reducing, or
controlling exposures to levels
established during development of
remediation goals consistent with
§ 300.430(e)(2)"(i). Overall protection of
human health and the environment
draws on the assessments of other
evaluation criteria, especially long-term
effectiveness and permanence, short-
term effectiveness, and compliance with
ARARs.
(B) Compliance with ARARs. The
alternatives shall be assessed to
determine whether they attain
applicable or relevant and appropriate
requirements under federal
environmental laws and state
environmental or facility siting laws or
provide grounds for invoking one of the
waivers under paragraph (f)(l)(ii)(C) of
this section.
(C) Long-term effectiveness and
permanence. Alternatives shall be
assessed for the long-term effectiveness
and permanence they afford, along with
the degree of certainty that the
alternative will prove successful.
Factors that shall be considered, as
appropriate, include the following:
(1] Magnitude of residual risk
remaining from untreated waste or
treatment residuals remaining at the
conclusion of the remedial activities.
The characteristics of the residuals
should be considered to the degree that
they remain hazardous, taking into
account their volume, toxicity, mobility,
and propensity to bioaccumulate.
(2) Adequacy and reliability of
controls such as containment systems
and institutional controls that are
necessary to manage treatment
residuals and untreated waste. This
factor addresses in particular the
uncertainties associated with land
disposal for providing long-term
protection from residuals; the
assessment of the potential need to
replace technical components of the
alternative, such as a cap, a slurry wall,
or a treatment system; and the potential
exposure pathways and risks posed
should the remedial action need
replacement.
(D) Reduction of toxicity, mobility, or
volume through treatment. The degree t
which alternatives employ recycling or
treatment that reduces toxicity, mobility
or volume shall be assessed, including
how treatment is used to address the
principal threats posed by the site.
Factors that shall be considered, as
appropriate, include the following:
(1) The treatment or recycling
processes the alternatives employ and
materials they will treat;
(2) The amount of hazardous
substances, pollutants, or contaminants
that will be destroyed, treated, or
recycled;
(3) The degree of expected reduction
in toxicity, mobility, or volume of the
waste due to treatment or recycling am
the specification of which reduction(s)
are occurring;
(4) The degree to which the treatmen
is irreversible;
(5) The type and quantity of residual
that will remain following treatment,
considering the persistence, toxicity,
mobility, and propensity to
bioaccumulate of such hazardous
substances and their constituents; and
[6] The degree to which treatment
reduces the inherent hazards posed by
principal threats at the site.
-------
8850
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
(E) Short-term effectiveness. The
short-term impacts of alternatives shall
be assessed considering the following:
(1} Short-term risks that might be
posed to the community during
implementation of an alternative;
(2) Potential impacts on workers
during remedial action and the
effectiveness and reliability of
protective measures;
(3) Potential environmental impacts of
the remedial action and the
effectiveness and reliability of
mitigative measures during
implementation; and
(4) Time until protection is achieved.
(F) latplementabitity. The ease or
difficulty of implementing the
alternatives shall be assessed by
considering the following types of
factors as appropriate:
(1) Technical feasibility, including
technical difficulties and unknowns
associated with the construction and
operation of a technology, the reliability
of the technology, ease of undertaking
additional remedial actions, and the
ability to monitor the effectiveness of
the remedy.
(2) Administrative feasibility,
including activities needed to coordinate
with other offices and agencies and the
ability and time required to obtain any
necessary approvals and permits from
other agencies (for off-site actions);
(3) Availability of services and
materials, including the availability of
adequate off-site treatment, storage
capacity, and disposal capacity and
services; the availability of necessary
equipment and specialists, and
provisions to ensure any necessary
additional resources; the availability of
services and materials; and availability
of prospective technologies.
(G) Cost. The types of costs that shall
be assessed include the following:
(1) Capital costs, including both direct
and indirect costs;
(2) Annual operation and maintenance
costs; and
(3) Net present value of capital and
O&M costs.
(H) State acceptance. Assessment of
state concerns may not be completed
until comments on the RJ/FS are
received but may be discussed, to the
extent possible, in the proposed plan
issued for public comment. The state
concerns that shall be assessed include
the following:
(/) The state's position and key
concerns related to the preferred
alternative and other alternatives; and
(2) State comments on ARARs or the
proposed use of waivers.
(!) Community acceptance. This
assessment includes determining which
components of the alternatives
interested persons in the community
support, have reservations about, or
oppose. This assessment may not be
completed until comments on the
proposed plan are received.
(f) Selection of remedy—(I) Remedies
selected shall reflect the scope and
purpose of the actions being undertaken
and how the action relates to long-term,
comprehensive response at the site.
(i) The criteria noted in paragraph
(e)(9)(iii] of this section are used to
select a remedy. These criteria are
categorized into three groups.
(A) Threshold criteria. Overall
protection of human health and the
environment and compliance with
ARARs (unless a specific ARAR is
waived] are threshold requirements that
each alternative must meet in order to
be eligible for selection.
(B) Primary balancing criteria. The
five primary balancing criteria are long-
term effectiveness and permanence;
reduction of toxicity, mobility, or volume
through treatment; short-term
effectiveness; implementability; and
cost.
(C) Modifying criteria. State and
community acceptance are modifying
criteria that shall be considered in
remedy selection.
(ii) The selection of a remedial action
is a two-step process and shall proceed
in accordance with § 300.515(e). First,
the lead agency, in conjunction with the
support agency, identifies a preferred
alternative and presents it to the public
in a proposed plan, for review and
comment. Second, the lead agency shall
review the public comments and consult
with the state (or support agency) in
order to determine if the alternative
remains the most appropriate remedial
action for the site or site problem. The
lead agency, as specified in § 300.515(e),
makes the final remedy selection
decision, which shall be documented in
the ROD. Each remedial alternative
selected as a Superfund remedy will
employ the criteria as indicated in
paragraph (f)(l)(i) of this section to
make the following determination:
(A) Each remedial action selected
shall be protective of human health and
the environment.
(B) On-site remedial actions selected
in a ROD must attain those ARARs that
are identified at the time of ROD
signature or provide grounds for
invoking a waiver under
§ 300.430(f)(l)(ii)(C).
(1) Requirements that are promulgated
or modified after ROD signature must be
attained (or waived) only when
determined to be applicable or relevant
and appropriate and necessary to ensure
that the remedy is protective of human
health and the environment.
• (2] Components of the remedy not
described in the ROD must attain (or
waive) requirements that are identified
as applicable or relevant and
appropriate at the time the amendment
to the ROD or the explanation of
significant difference describing the
component is signed.
(C) An alternative that does not meet
an ARAR under federal environmental
or state environmental or facility siting
laws may be selected under the
following circumstances:
(1) The alternative is an interim
measure and will become part of a total
remedial action that will attain the
applicable or relevant and appropriate
federal or state requirement;
[2] Compliance with the requirement
will result in greater risk to human
health and the environment than other
alternatives;
(3) Compliance with the requirement
is technically impracticable from an
engineering perspective;
(4) The alternative will attain a
standard of performance that is
equivalent to that required under the
otherwise applicable standard,
requirement, or limitation through use of
another method or approach;
(5] With respect to a state
requirement, the state has not
consistently applied, or demonstrated
the intention to consistently apply, the
promulgated requirement in similar
circumstances at other remedial actions
within the state; or
(6) For Fund-financed response
actions only, an alternative that attains
the ARAR will not provide a balance
between the need for protection of
human health and the environment at
the site and the availability of Fund
monies to respond to other sites that
may present a threat to human health
and the environment.
(D) Each remedial action selected
shall be cost-effective, provided that it
first satisfies the threshold criteria set
forth in § 300.430(f)(l)(ii) (A) and (B).
Cost-effectiveness is determined by
evaluating the following three of the five
balancing criteria noted in
§ 300.430(f)(l)(i)(B) to determine overall
effectiveness: long-term effectiveness
and permanence, reduction of toxicity,
mobility, or volume through treatment,
and short-term effectiveness. Overall
effectiveness is then compared to cost to
ensure that the remedy is cost-effective.
A remedy shall be cost-effective if its
costs are proportional to its overall
effectiveness.
(E) Each remedial action shall utilize
permanent solutions and alternative
treatment technologies or resource
recovery technologies to the maximum
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8851
extent practicable. This requirement
shall be fulfilled by selecting the
alternative that satisfies paragraph
(f)(l)(ii) (A) and (B) of this section and
provides the best balance of trade-offs
among alternatives in terms of the five
primary balancing criteria noted in
paragraph (f)(l)(i)(B) of this section. The
balancing shall emphasize long-term
effectiveness and reduction of toxicity,
mobility, or volume through treatment.
The balancing shall also consider the
preference for treatment as a principal
element and the bias against off-site
land disposal of untreated waste. In
making the determination under this
paragraph, the modifying criteria of
state acceptance and community
acceptance described in paragraph
(f)(l)(i)(C) of this section shall also be
considered.
(2) The proposed plan. In the first step
in the remedy selection process, the lead
agency shall identify the alternative that
best meets the requirements in
S 300.430(f)(l). above, and shall present
that alternative to the public in a
proposed plan. The lead agency, in
conjunction with the support agency and
consistent with § 300.515(e), shall
prepare a proposed plan that briefly
describes the remedial alternatives
analyzed by the lead agency, proposes a
preferred remedial action alternative,
and summarizes the information relied
upon to select the preferred alternative.
The selection of remedy process for an
operable unit may be initiated at any
time during the remedial action process.
The purpose of the proposed plan is to
supplement the RI/FS and provide the
public with a reasonable opportunity to
comment on the preferred alternative for
remedial action, as well as alternative
plans under consideration, and to
participate in the selection of remedial
action at a site. At a minimum, the
proposed plan shall:
(i) Provide a brief summary
description of the remedial alternatives
evaluated in the detailed analysis
established under paragraph (e)(9) of
this section;
(ii) Identify and provide a discussion
of the rationale that supports the
preferred alternative;
(iii) Provide a summary of any formal
comments received from the support
agency; and
(iv) Provide a summary explanation of
any proposed waiver identified under
paragraph (f](l)(ii)(C) of this section
from an ARAR.
(3) Community relations to support
the selection of remedy, (i) The lead
agency, after preparation of the
proposed plan and review by the
support agency, shall conduct the
following activities:
(A) Publish a notice of availability
and brief analysis of the proposed plan
in a major local newspaper of general
circulation;
(B) Make the proposed plan and
supporting analysis and information
available in the administrative record
required under subpart I of this part;
(C) Provide a reasonable opportunity,
not less than 30 calendar days, for
submission of written and oral
comments on the proposed plan and the
supporting analysis and information
located in the information repository,
including the RI/FS. Upon timely
request, the lead agency will extend the
public comment period by a minimum of
30 additional days;
(D) Provide the opportunity for a
public meeting to be held during the
public comment period at or near the
site at issue regarding the proposed plan
and the supporting analysis and
information;
(E) Keep a transcript of the public
meeting held during the public comment
period pursuant to CERCLA section
117(a) and make such transcript
available to the public; and
(F) Prepare a written summary of
significant comments, criticisms, and
new relevant information submitted
during the public comment period and
the lead agency response to each issue.
This responsiveness summary shall be
made available with the record of
decision.
(ii) After publication of the proposed
plan and prior to adoption of the
selected remedy in the record of
decision, if new information is made
available that significantly changes the
basic features of the remedy with
respect to scope, performance, or cost,
such that the remedy significantly
differs from the original proposal in the
proposed plan and the supporting
analysis and information, the lead
agency shall:
(A) Include a discussion in the record
of decision of the significant changes
and reasons for such changes, if the lead
agency determines such changes could
be reasonably anticipated by the public
based on the alternatives and other
information available in the proposed
plan or the supporting analysis and
information in the administrative record;
or
(B) Seek additional public comment
on a revised proposed plan, when the
lead agency determines the change
could not have been reasonably
anticipated by the public based on the
information available in the proposed
plan or the supporting analysis and
information in the administrative record.
The lead agency shall, prior to adoption
of the selected remedy in the ROD, issue
a revised proposed plan, which shall
include a discussion of the significant
changes and the reasons for such
changes, in accordance with the public
participation requirements described in
paragraph (f)(3)(i) of this section.
(4) Final remedy selection, (i) In the
second and final step in the remedy
selection process, the lead agency shall
reassess its initial determination that
the preferred alternative provides the
best balance of trade-offs, now factoring
in any new information or points of
view expressed by the state (or support
agency) and community during the
public comment period. The lead agency
shall consider state (or support agency)
and community comments regarding the
lead agency's evaluation of alternatives
with respect to the other criteria. These
comments may prompt the lead agency
to modify aspects of the preferred
alternative or decide that another
alternative provides a more appropriate
balance. The lead agency, as specified
in § 300.515(e), shall make the final
remedy selection decision and document
that decision in the ROD.
(ii) If a remedial action is selected thai
results in hazardous substances,
pollutants, or contaminants remaining at
the site above levels that allow for
unlimited use and unrestricted exposure,
the lead agency shall review such action
no less often than every five years after
initiation of the selected remedial
action.
(iii) The process for selection of a
remedial action at a federal facility on
the NPL, pursuant to CERCLA section
120, shall entail:
(A) Joint selection of remedial action
by the head of the relevant department,
agency, or instrumentality and EPA; or
(B) If mutual agreement on the remedj
is not reached, selection of the remedy
is made by EPA.
(5) Documenting the decision, (i) To
support the selection of a remedial
action, all facts, analyses of facts, and
site-specific policy determinations
considered in the course of carrying out
activities in this section shall be
documented, as appropriate, in a record
of decision, in a level of detail
appropriate to the site situation, for
inclusion in the administrative record
required under subpart I of this part.
Documentation shall explain how the
evaluation criteria in paragraph
(e)(9)(iii) of this section were used to
select the remedy.
(ii) The ROD shall describe the
following statutory requirements as the
relate to the scope and objectives of th<
action:
(A) How the selected remedy is
protective of human health and the
-------
8852
Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
environment, explaining how the
remedy eliminates, reduces, or controls
exposures to human and environmental
receptors;
(B) The federal and state requirements
that are applicable or relevant and
appropriate to the site that the remedy
will attain;
(C) The applicable or relevant and
appropriate requirements of other
federal and state laws that the remedy
will not meet, the waiver invoked, and
the justification for invoking the waiver;
(D) How the remedy is cost-effective,
i.e., explaining how the remedy provides
overall effectiveness proportional to its
costs;
(E) How the remedy utilizes
permanent solutions and alternative
treatment technologies or resource
recovery technologies to the maximum
extent practicable; and
[F) Whether the preference for
remedies employing treatment which
permanently and significantly reduces
the toxicity, mobility, or volume of the
hazardous substances, pollutants, or
contaminants as a principal element is
or is not satisfied by the selected
remedy. If this preference is not
satisfied, the record of decision must
explain why a remedial action involving
such reductions in toxicity, mobility, or
volume was not selected.
(iii) The ROD also shall:
(A] Indicate, as appropriate, the
remediation goals, discussed in
paragraph (e)(2)(i) of this section, that
the remedy is expected to achieve.
Performance shall be measured at
appropriate locations in the ground
water, surface water, soils, air, and
other affected environmental media.
Measurement relating to the
performance of the treatment processes
and the engineering controls may also
be identified, as appropriate;
(B) Discuss significant changes and
the response to comments described in
paragraph (f)(3)(i)(F) of this section;
(C) Describe whether hazardous
substances, pollutants, or contaminants
will remain at the site such that a
review of the remedial action under
paragraph (f)(4)(ii) of this section no less
often than every five years shall be
required; and
(D) When appropriate, provide a
commitment for further analysis and
•election of long-term response
measures within an appropriate time-
frame.
(6) Community relations when the
record of decision is signed. After the
ROD is signed, the lead agency shall:
(i) Publish a notice of the availability
of the ROD in a major local newspaper
of general circulation; and
(ii) Make the record of decision
available for public inspection and
copying at or near the facility at issue
prior to the commencement of any
remedial action.
{300.435 Remedial design/remedial
action, operation and maintenance.
(a) General. The remedial design/
remedial action (RD/RA) stage includes
the development of the actual design of
the selected remedy and implementation
of the remedy through construction. A
period of operation and maintenance
may follow the RA activities.
(b) RD/RA activities. (1) All RD/RA
activities shall be in conformance with
the remedy selected and set forth in the
ROD or other decision document for that
site. Those portions of RD/RA sampling
and analysis plans describing the QA/
QC requirements for chemical and
analytical testing and sampling
procedures of samples taken for the
purpose of determining whether cleanup
action levels specified in the ROD are
achieved, generally will be consistent
with the requirements of 5 300.430(b)(8).
(2) During the course of the RD/RA,
the lead agency shall be responsible for
ensuring that all federal and state
requirements that are identified in the
ROD as applicable or relevant and
appropriate requirements for the action
are met. If waivers from any ARARs are
involved, the lead agency shall be
responsible for ensuring that the
conditions of the waivers are met.
(c) Community relations. (1) Prior to
the initiation of RD, the lead agency
shall review the CRP to determine
whether it should be revised to describe
further public involvement activities
during RD/RA that are not already
addressed or provided for in the CRP.
(2) After the adoption of the ROD, if
the remedial action or enforcement
action taken, or the settlement or
consent decree entered into, differs
significantly from the remedy selected in
the ROD with respect to scope,
performance, or cost, the lead agency
•hall consult with the support agency, as
appropriate, and shall either
(i) Publish an explanation of
significant differences when the
differences in the remedial or
enforcement action, settlement, or
consent decree significantly change but
do not fundamentally alter the remedy
•elected in the ROD with respect to
•cope, performance, or cost. To issue an
explanation of significant differences,
the lead agency shall:
(A] Make the explanation of
significant differences and supporting
information available to the public in
the administrative record established
under § 300.815 and the information
repository; and
(B) Publish a notice that briefly
summarizes the explanation of
significant differences, including the
reasons for such differences, in a major
local newspaper of general circulation;
or
(ii] Propose an amendment to the ROD
if the differences in the remedial or
enforcement action, settlement, or
consent decree fundamentally alter the
basic features of the selected remedy
with respect to scope, performance, or
cost. To amend the ROD, the lead
agency, in conjunction with the support
agency, as provided in { 300.515(e),
shall:
(A) Issue a notice of availability and
brief description of the proposed
amendment to the ROD in a major local
newspaper of general circulation;
(B) Make the proposed amendment to
the ROD and information supporting the
decision available for public comment;
(C] Provide a reasonable opportunity.
not less than 30 calendar days, for
submission of written or oral comments
on the amendment to the ROD. Upon
timely request, the lead agency will
extend the public comment period by a
minimum of 30 additional days;
(D) Provide the opportunity for a
public meeting to be held during the
public comment period at or near the
facility at issue;
(E) Keep a transcript of comments
received at the public meeting held
during the public comment period;
(F) Include in the amended ROD a
brief explanation of the amendment and
the response to each of the significant
comments, criticisms, and new relevant
information submitted during the public
comment period;
(G) Publish a notice of the availability
of the amended ROD in a major local
newspaper of general circulation; and
(H) Make the amended ROD and
supporting information available to the
public in the administrative record and
information repository prior to the
commencement of the remedial action
affected by the amendment
(3) After the completion of the final
engineering design, the lead agency
shall issue a fact sheet and provide, as
appropriate, a public briefing prior to the
initiation of the remedial action.
(d) Contractor conflict of interest. (1)
For Fund-financed RD/RA and O&M
activities, the lead agency shall:
(i) Include appropriate language in the
solicitation requiring potential prime
contractors to submit information on
their status, as well as the status of their
subcontractors, parent companies, and
-------
Federal Register / Vol. 55, No. 46 / Thursday. March 8, 1990 / Rules and Regulations
885
affiliates, as potentially responsible
parties at the site.
(ii) Require potential prime
contractors to certify that, to the best of
their knowledge, they and their potential
subcontractors, parent companies, and
affiliates have disclosed all information
described in § 300.435(d)(l)(i) or that no
such information exists, and that any
such information discovered after
submission of their bid or proposal or
contract award will be disclosed
immediately.
(2) Prior to contract award, the lead
agency shall evaluate the information
provided by the potential prime
contractors and:
(i) Determine whether they have
conflicts of interest that could
significantly impact the performance of
the contract or the liability of potential
prime contractors or subcontractors.
(ii) If a potential prime contractor or
subcontractor has a conflict of interest
that cannot be avoided or otherwise
resolved, and using that potential prime
contractor or subcontractor to conduct
RD/RA or O&M work under a Fund-
financed action would not be in the best
interests of the state or federal
government, an offerer or bidder
contemplating use of that prime
contractor or subcontractor may be
declared nonresponsible or ineligible for
award in accordance with appropriate
acquisition regulations, and the contract
may be awarded to the next eligible
offerer or bidder.
(e) Recontracting. (1) If a Fund-
financed contract must be terminated
because additional work outside the
scope of the contract is needed, EPA is
authorized to take appropriate steps to
continue interim RAs as necessary to
reduce risks to public health and the
environment. Appropriate steps may
include extending an existing contract
for a federal-lead RA or amending a
cooperative agreement for a state-lead
RA. Until the lead agency can reopen
the bidding process and recontract to
complete the RA, EPA may take such
appropriate steps as described above to
cover interim work to reduce such risks,
where:
(i) Additional work is found to be
needed as a result of such unforeseen
situations as newly discovered sources,
types, or quantities of hazardous
substances at a facility; and
(ii) Performance of the complete RA
requires the lead agency to rebid the
contract because the existing contract
does not encompass this newly
discovered work.
(2) The cost of such interim actions
shall not exceed $2 million.
(f) Operation and maintenance. (1)
Operation and maintenance (O&M)
measures are initiated after the remedy
has achieved the remedial action
objectives and remediation goals in the
ROD, and is determined to be
operational and functional, except for
ground- or surface-water restoration
actions covered under § 300.435(f)(4). A
state must provide its assurance to
assume responsibility for O&M,
including, where appropriate,
requirements for maintaining
institutional controls, under § 300.510(c).
(2) A remedy becomes "operational
and functional" either one year after
construction is complete, or when the
remedy is determined concurrently by
EPA and the state to be functioning
properly and is performing as designed,
whichever is earlier. EPA may grant
extensions to the one-year period, as
appropriate.
(3) For Fund-financed remedial
actions involving treatment or other
measures to restore ground- or surface-
water quality to a level that assures
protection of human health and the
environment, the operation of such
treatment or other measures for a period
of up to 10 years after the remedy
becomes operational and functional will
be considered part of the remedial
action. Activities required to maintain
the effectiveness of such treatment or
measures following the 10-year period,
or after remedial action is complete,
whichever is earlier, shall be considered
O&M. For the purposes of federal
funding provided under CERCLA section
104(c)(6), a restoration activity will be
considered administratively "complete"
when:
(i) Measures restore ground- or
surface-water quality to a level that
assures protection of human health and
the environment;
(ii) Measures restore ground or
surface water to such a point that
reductions in contaminant
concentrations are no longer significant;
or
(iii) Ten years have elapsed.
whichever is earliest.
(4) The following shall not be deemed
to constitute treatment or other
measures to restore contaminated
ground or surface water under
§ 300.435(0(3):
(i) Source control maintenance
measures; and
(ii) Ground- or surface-water
measures initiated for the primary
purpose of providing a drinking-water
supply, not for the purpose of restoring
ground water.
§ 300.440 Procedures for planning and
Implementing off-site response actions
[Reserved].
Subpart F—State Involvement In
Hazardous Substance Response
§300.500 General.
(a) EPA shall ensure meaningful and
substantial state involvement in
hazardous substance response as
specified in this subpart. EPA shall
provide an opportunity for state
participation in removal, pre-remedial,
remedial, and enforcement response
activities. EPA shall encourage states t
enter into an EPA/state Superfund
Memorandum of Agreement (SMOA)
under § 300.505 to increase state
involvement and strengthen the EPA/
state partnership.
(b) EPA shall encourage states to
participate in Fund-financed response i
two ways. Pursuant to § 300.515(a),
states may either assume the lead
through a cooperative agreement for tb
response action or may be the support
agency in EPA-lead remedial response
Section 300.515 sets forth requirements
for state involvement in EPA-lead
remedial and enforcement response an
also addresses comparable
requirements for EPA involvement in
state-lead remedial and enforcement
response. Section 300.720 specifies
requirements for state involvement in
EPA-lead enforcement negotiations.
Section 300.525 specifies requirements
for state involvement in removal
actions. In addition to the requirement
set forth in this subpart, 40 CFR part 3.'
subpart O, "Cooperative Agreements
and Superfund State Contracts for
Superfund Response Actions," contain
further requirements for state
participation during response.
§ 300.505 EPA/State Suporiund
Memorandum of Agreement (SMOA).
(a) The SMOA may establish the
nature and extent of EPA and state
interaction during EPA-lead and state-
lead response (Indian tribes meeting tl
requirements of § 300.515(b] may be
treated as states for purposes of this
section). EPA shall enter into SMOA
discussions if requested by a state. Tl
following may be addressed in a SMC
(1) The EPA/state or Indian tribe
relationship for removal, pre-remedial
remedial, and enforcement response,
including a description of the roles an
the responsibilities of each.
(2) The general requirements for EP
oversight. Oversight requirements ma
be more specifically defined in
cooperative agreements.
(3) The general nature of lead and
support agency interaction regarding
-------
8854
Federal Register / Vol. 55, No. 46 / Thursday. March 8, 1990 / Rules and Regulations
review of key documents and/or
decision points in removal, pre-
remedial, remedial, and enforcement
response. The requirements for EPA and
state review of each other's key
documents when each is serving as the
support agency shall be equivalent to
the extent practicable. Review times
agreed to in the SMOA must also be
documented in site-specific cooperative
agreements or Superfund state contracts
in order to be binding.
(4) Procedures for modification of the
SMOA (e.g., if EPA and a state agree
that the lead and support agency roles
and responsibilities have changed, or if
modifications are required to achieve
desired goals).
(b) The SMOA and any modifications
thereto shall be executed by the EPA
Regional Administrator and the head of
the state agency designated as lead
agency for state implementation of
CERCLA.
(c) Site-specific agreements entered
into pursuant to section 104(d)(l) of
CERCLA shall be developed in
accordance with 40 CFR part 35, subpart
O. The SMOA shall not supersede such
agreements.
(d)(l) EPA and the state shall consult
annually to determine priorities and
make lead and support agency
designations for removal, pre-remedial,
remedial, and enforcement response to
be conducted during the next fiscal year
and to discuss future priorities and long-
term requirements for response. These
consultations shall include the exchange
of information on both Fund- and non-
Fund-financed response activities. The
SMOA may describe the timeframe and
process for the EPA/state consultation.
(2) The following activities shall be
discussed in the EPA/state
consultations established in the SMOA,
or otherwise initiated and documented
in writing in the absence of a SMOA, on
a site-specific basis with EPA and the
state identifying the lead agency for
each response action discussed:
(i) Pre-remedial response actions,
including preliminary assessments and
site inspections;
(ii) Hazard Ranking System scoring
and NPL listing and deletion activities;
(iii) Remedial phase activities,
including remedial investigation/
feasibility study, identification of
potential applicable or relevant and
appropriate requirements (ARARs)
under federal and state environmental
laws and, as appropriate, other
advisories, criteria, or guidance to be
considered (TBCs), proposed plan, ROD,
remedial design, remedial action, and
operation and maintenance;
(iv) Potentially responsible party
(PRP) searches, notices to PRPs.
response to information requests, PRP
negotiations, oversight of PRPs, other
enforcement actions pursuant to state
law, and activities where the state
provides support to EPA;
(v) Compilation and maintenance of
the administrative record for selection
of a response action as required by
subpart I of this part;
(vi) Related site support activities;
(vii) State ability to share in the cost
and tuning of payments; and
(viii) General CERCLA
implementation activities.
(3) If a state is designated as the lead
agency for a non-Fund-fmanced action
at an NPL site, the SMOA shall be
supplemented by site-specific
enforcement agreements between EPA
and the state which specify schedules
and EPA involvement.
(4) In the absence of a SMOA, EPA
and the state shall comply with the
requirements in § 300.515(h). If the
SMOA does not address all of the
requirements specified in § 300.515(h),
EPA and the state shall comply with any
unaddressed requirements in that
section.
§ 300.510 State assurances.
(a) A Fund-financed remedial action
undertaken pursuant to CERCLA section
104(a] cannot proceed unless a state
provides its applicable required
assurances. The assurances must be
provided by the state prior to the
initiation of remedial action pursuant to
a Superfund state contract for EPA-lead
(or political subdivision-lead) remedial
action or pursuant to a cooperative
agreement for a state-lead remedial
action. The SMOA may not be used for
this purpose. Federally recognized
Indian tribes are not required to provide
CERCLA section 104(c)(3) assurances
for Fund-financed response actions.
Further requirements pertaining to state,
political subdivision, and federally
recognized Indian tribe involvement in
CERCLA response are found in 40 CFR
part 35, subpart O.
(b)(l) The state is not required to
share in the cost of state- or EPA-lead
Fund-financed removal actions
(including remedial planning activities
associated with remedial actions)
conducted pursuant to CERCLA section
104 unless the facility was operated by
the state or a political subdivision
thereof at the time of disposal of
hazardous substances therein and a
remedial action is ultimately undertaken
at the site. Such remedial planning
activities include, but are not limited to,
remedial investigations (RIs), feasibility
studies (FSs), and remedial design (RD).
States shall be required to share 50
percent, or greater, in the cost of all
Fund-financed response actions if the
facility was publicly operated at the
time of the disposal of hazardous
substances. For other facilities, except
federal facilities, the state shall be
required to share 10 percent of the cost
of the remedial action.
(2) CERCLA section 104(c)(5) provides
that EPA shall grant a state credit for
reasonable, documented, direct, out-of-
pocket, non-federal expenditures subject
to the limitations specified in CERCLA
section 104(c)(5). For a state to apply
credit toward its cost share, it must
enter into a cooperative agreement or
Superfund state contract The state must
submit as soon as possible, but no later
than at the time CERCLA section 104
assurances are provided for a remedial
action, its accounting of eligible credit
expenditures for EPA verification.
Additional credit requirements are
contained in 40 CFR part 35, subpart O.
(3) Credit may be applied to a state's
future cost share requirements at NPL
sites for response expenditures or
obligations incurred by the state or a
political subdivision from January 1,
1978 to December 11,1980, and for the
remedial action expenditures incurred
only by the state after October 17,1986.
(4) Credit that exceeds the required
cost share at the site for which the credit
is granted may be transferred to another
site to offset a state's required remedial
action cost share.
(c)(l) Prior to a Fund-financed
remedial action, the state must also
provide its assurance in accordance
with CERCLA section 104(c)(3)(A) to
assume responsibility for operation and
maintenance of implemented remedial
actions for the expected life of such
actions. In addition, when appropriate,
as part of the O&M assurance, the state
must assure that any institutional
controls implemented as part of the
remedial action at a site are in place.
reliable, and will remain in place after
the initiation of O&M. The state and
EPA shall consult on a plan for
operation and maintenance prior to the
initiation of a remedial action.
• (2) After a joint EPA/state inspection
of the implemented Fund-financed
remedial action under § 300.515(g). EPA
may share, for a period of up to one
year, in the cost of the operation of the
remedial action to ensure that the
remedy is operational and functional. In
the case of the restoration of ground or
surface water. EPA shall share in the
cost of the state's operation of ground-
or surface-water restoration remedial
actions as specified in § 300.435(f)(3).
(d) In accordance with CERCLA
sections 104 (c)(3)(B) and 121(d)(3), if the
remedial action requires off-site storage.
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8855
destruction, treatment, or disposal, the
state must provide its assurance before
the remedial action begins on the
availability of a hazardous waste
disposal facility that is in compliance
with CERCLA section 121(d)(3) and is
acceptable to EPA.
(e](l) In accordance with CERCLA
section 104(c)(9), EPA shall not provide
any remedial action pursuant to
CERCLA section 104 until the state in
which the release occurs enters into a
cooperative agreement or Superfund
state contract with EPA providing
assurances deemed adequate by EPA
that the state will assure the availability
of hazardous waste treatment or
disposal facilities which:
(i) Have adequate capacity for the
destruction, treatment, or secure
disposition of all hazardous wastes that
are reasonably expected to be generated
within the state during the 20-year
period following the date of such
cooperative agreement or Superfund
state contract and to be destroyed,
treated, or disposed;
(ii) Are within the state, or outside the
state in accordance with an interstate
agreement or regional agreement or
authority;
(iii) Are acceptable to EPA; and
(iv) Are in compliance with the
requirements of Subtitle C of the Solid
Waste Disposal Act.
(2) This rule does not address whether
or not Indian tribes are states for
purposes of this paragraph (e).
(f) EPA may determine that an interest
in real property must be acquired in
order to conduct a response action. As a
genera] rule, the state in which the
property is located must agree to
acquire and hold the necessary property
interest, including any interest in
acquired property that is needed to
ensure the reliability of institutional
controls restricting the use of that
property. If it is necessary for the United
States government to acquire the
interest in property to permit
implementation of the response, the
state must accept transfer of the
acquired interest on or before the
completion of the response action.
S 300.515 Requirements for state
involvement In remedial and enforcement
response.
(a) General. (I] States are encouraged
to undertake actions authorized under
subpart E. Section 104(d)(l) of CERCLA
authorizes EPA to enter into cooperative
agreements or contracts with a state,
political subdivision, or a federally
recognized Indian tribe to carry out
Fund-financed response actions
authorized under CERCLA, when EPA
determines that the state, the political
subdivision, or federally recognized
Indian tribe has the capability to
undertake such actions. EPA will use a
cooperative agreement to transfer funds
to those entities to undertake Fund-
financed response activities. The
requirements for states, political
subdivisions, or Indian tribes to receive
funds as a lead or support agency for
response are addressed at 40 CFR part
35, subpart O.
(2) For EPA-lead Fund-financed
remedial planning activities, including,
but not limited to, remedial
investigations, feasibility studies, and
remedial designs, the state agency
acceptance of the support agency role
during an EPA-lead response shall be
documented in a letter, SMOA, or
cooperative agreement. Superfund state
contracts are unnecessary for this
purpose.
(3) Cooperative agreements and
Superfund state contracts are only
appropriate for non-Fund-financed
response actions if a state intends to
seek credit for remedial action expenses
under $ 300.510.
(b) Indian tribe involvement during
response. To be afforded substantially
the same treatment as states under
section 104 of CERCLA, the governing
body of the Indian tribe must:
(1) Be federally recognized; and
(2) Have a tribal governing body that
is currently performing governmental
functions to promote the health, safety,
and welfare of the affected population
or to protect the environment within a
denned geographic area; and
(3) Have jurisdiction over a site at
which Fund-financed response,
including pre-remedial activities, is
contemplated.
(c) State involvement in PA/SI and
National Priorities List process. EPA
shall ensure state involvement in the
listing and deletion process by providing
states opportunities for review,
consultation, or concurrence specified in
this section.
(1) EPA shall consult with states as
appropriate on the information to be
used in developing HRS scores for
releases.
(2) EPA shall, to the extent feasible,
provide the state 30 working days to
review releases which were scored by
EPA and which will be considered for
placement on the National Priorities List
(NPL).
(3) EPA shall provide the state 30
working days to review and concur on
the Notice of Intent to Delete a release
from the NPL Section 300.425 describes
the EPA/state consultation and
concurrence process for deleting
releases from the NPL
(d) State involvement in RI/FS
process. A key component of the EPA/
state partnership shall be the
communication of potential federal and
state ARARs and, as appropriate, other
pertinent advisories, criteria, or
guidance to be considered (TBCs).
(1) In accordance with $ $ 300.400(g)
and 300.430, the lead and support
agencies shall identify their respective
potential ARARs and communicate
them to each other in a timely manner,
i.e., no later than the early stages of the
comparative analysis described in
S 300.430(e)(9), such that sufficient time
is available for the lead agency to
consider and incorporate all potential
ARARs without inordinate delays and
duplication of effort The lead and
support agencies may also identify TBCs
and communicate them in a timely
manner.
(2) When a state and EPA have
entered into a SMOA, the SMOA may
specify a consultation process which
requires the lead agency to solicit
potential ARARs at specified points in
the remedial planning and remedy
selection processes. At a miniTnyn), the
SMOA shall include the points specified
in S 300.515(h)(2). The SMOA shall
specify timeframes for support agency
response to lead agency requests to
ensure that potential ARARs are
identified and communicated in a timely
manner. Such timeframes must also be
documented in site-specific agreements.
The SMOA may also discuss
identification and communication of
TBCs.
(3) If EPA in its statement of a
proposed plan intends to waive any
state-identified ARARs, or does not
agree with the state that a certain state
standard is an ARAR, it shall formally
notify the state when it submits the RI/
FS report for state review or responds tc
the state's submission of the RI/FS
report.
(4) EPA shall respond to state
comments on waivers from or
disagreements about state ARARs, as
well as the preferred alternative when
making the RI/FS report and proposed
plan available for public comment
(e) State involvement in selection of
remedy. (1) Both EPA and the state shal
be involved in preliminary discussions
of the alternatives addressed in the FS
prior to preparation of the proposed pla
and ROD. At the conclusion of the RI/
FS, the lead agency, in conjunction wit!
the support agency, shall develop a
proposed plan. The support agency sha
have an opportunity to comment on the
plan. The lead agency shall publish a
notice of availability of the RI/FS repoi
and a brief analysis of the proposed
-------
8856 Federal Register / Vol. 55, No. 46 / Thursday. March 8. 1990 / Rules and Regulations
plan pursuant to § 300.430(e) and (f).
Included in the proposed plan shall be a
statement that the lead and support
agencies have reached agreement or,
where this is not the case, a statement
explaining the concerns of the support
agency with the lead agency's proposed
plan. The state may not publish a
proposed plan that EPA has not
approved. EPA may assume the lead
from the state if agreement cannot be
reached.
(2)(i) EPA and the state shall identify.
at least annually, sites for which RODs
will be prepared during the next fiscal
year, in accordance with § 300.515(h)(l).
For all EPA-lead sites, EPA shall
prepare the ROD and provide the state
an opportunity to concur with the
recommended remedy. For Fund-
financed state-lead sites, EPA and the
state shall designate sites, in a site-
specific agreement, for which the state
shall prepare the ROD and seek EPA's
concurrence and adoption of the remedy
specified therein, and sites for which
EPA shall prepare the ROD and seek the
state's concurrence. EPA and the state
may designate sites for which the state
shall prepare the ROD for non-Fund-
financed state-lead enforcement
response actions (i.e., actions taken
under state law) at an NPL site. The
state may seek EPA's concurrence in the
remedy specified therein. Either EPA or
the state may choose not to designate a
site as state-lead.
(ii) State concurrence on a ROD is not
a prerequisite to EPA's selecting a
remedy, i.e., signing a ROD, nor is EPA's
concurrence a prerequisite to a state's
selecting a remedy at a non-Fund-
fmanced state-lead enforcement site
under state law. Unless EPA's Assistant
Administrator for Solid Waste and
Emergency Response or Regional
Administrator concurs in writing with a
state-prepared ROD, EPA shall not be
deemed to have approved the state
decision. A state may not proceed with
a Fund-financed response action unless
EPA has first concurred in and adopted
the ROD. Section 300.510(a) specifies
limitations on EPA's proceeding with a
remedial action without state
assurances.
(iii) The lead agency shall provide the
support agency with a copy of the
signed ROD for remedial actions to be
conducted pursuant to CERCLA.
(iv) On state-lead sites identified for
EPA concurrence, the state generally
shall be expected to maintain its lead
agency status through the completion of
the remedial action.
(f) Enhancement of remedy. (1) A
state may ask EPA to make changes in
or expansions of a remedial action
selected under subpart E.
(i) If EPA finds that the proposed
change or expansion is necessary and
appropriate to the EPA-selected
remedial action, the remedy may be
modified (consistent with
§ 300.435(c)(2)) and any additional costs
paid as part of the remedial action.
(ii) If EPA finds that the proposed
change or expansion is not necessary to
the selected remedial action, but would
not conflict or be inconsistent with the
EPA-selected remedy, EPA may agree to
integrate the proposed change or
expansion into the planned CERCLA
remedial work if:
(A) The state agrees to fund the entire
additional cost associated with the
change or expansion; and
(B) The state agrees to assume the
lead for supervising the state-funded
component of the remedy or, if EPA
determines that the state-funded
component cannot be conducted as a
separate phase or activity, for
supervising the remedial design and
construction of the entire remedy.
(2) Where a state does not concur in a
remedial action secured by EPA under
CERCLA section 106, and the state
desires to have the remedial action
conform to an ARAR that has been
waived under § 300.430(f)(l)(»)(C), a
state may seek to have that remedial
action so conform, in accordance with
the procedures set out in CERCLA
section 121(f)(2).
(g) State involvement in remedial
design/remedial action. The extent and
nature of state involvement during
remedial design and remedial action
•shall be specified in site-specific
cooperative agreements or Superfund
state contracts, consistent with 40 CFR
part 35, subpart O. For Fund-financed
remedial actions, the lead and support
agencies shall conduct a joint inspection
at the conclusion of construction of the
remedial action to determine that the
remedy has been constructed in
accordance with the ROD and with the
remedial design.
(h) Requirements for state
involvement in absence ofSMOA. In the
absence of a SMOA, EPA and the state
shall comply with the requirements in
S 300.51S(h). If the SMOA does not
address all of the requirements specified
in § 300.515(h], EPA and the state shall
comply with any unaddressed
requirements in that section.
(1) Annual consultations. EPA shall
conduct consultations with states at
least annually to establish priorities and
identify and document in writing the
lead for remedial and enforcement
response for each NPL site within the
state for the upcoming fiscal year. States
shall be given the opportunity to
participate in long-term planning efforts
for remedial and enforcement response
during these annual consultations.
(2) Identification ofARARs and TBCs.
The lead and support agencies shall
discuss potential ARARs during the
scoping of the RI/FS. The lead agency
shall request potential ARARs from the
support agency no later than the time
that the site characterization data are
available. The support agency shall
communicate in writing those potential
ARARs to the lead agency within 30
working days of receipt of the lead
agency request for these ARARs. The
lead and support agencies may also
discuss and communicate other
pertinent advisories, criteria, or
guidance to be considered (TBCs). After
the initial screening of alternatives has
been completed but prior to initiation of
the comparative analysis conducted
during the detailed analysis phase of the
FS, the lead agency shall request that
the support agency communicate any
additional requirements that are
applicable or relevant and appropriate
to the alternatives contemplated within
30 working days of receipt of this
request. The lead agency shall thereafter
consult the support agency to ensure
that identified ARARs and TBCs are
updated as appropriate.
(3) Support agency review of lead
agency documents. The lead agency
shall provide the support agency an
opportunity to review and comment on
the RI/FS, proposed plan, ROD. and
remedial design, and any proposed
determinations on potential ARARs and
TBCs. The support agency shall have a
minimum of 10 working days and a
maximum of 15 working days to provide
comments to the lead agency on the RI/
FS, ROD. ARAR/TBC determinations,
and remedial design. The support
agency shall have a minimum of five
working days and a maximum of 10
working days to comment on the
proposed plan.
(i) Administrative record
requirements. The state, where it is the
lead agency for a Fund-financed site.
shall compile and maintain the
administrative record for selection of a
response action under subpart I of this
part unless specified otherwise in the
SMOA.
§ 300.520 State Involvement In EPA-toad
enforcement negotiations.
(a) EPA shall notify states of response
action negotiations to be conducted by
EPA with potentially responsible parties
during each fiscal year.
(b) The state must notify EPA of such
negotiations in which it intends to
participate.
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8857
(c) The state is not foreclosed from
signing a consent decree if it does not
participate substantially in the
negotiations.
§ 300.525 State Involvement In removal
actions.
(a) States may undertake Fund-
financed removal actions pursuant to a
cooperative agreement with EPA. State-
lead removal actions taken pursuant to
cooperative agreements must be
conducted in accordance with § 300.415
on removal actions, and 40 CFR part 35,
subpart O.
(b) States are not required under
section 104(c)(3) of CERCLA to share in
the cost of a Fund-financed removal
action, unless the removal is conducted
at an NPL site that was operated by a
state or political subdivision at the time
of disposal of hazardous substances
therein and a Fund-financed remedial
action is ultimately undertaken at the
site. In this situation, states are required
to share, 50 percent or greater, in the
cost of all removal (including remedial
planning) and remedial action costs at
the time of the remedial action.
(c) States are encouraged to provide
for post-removal site control as
discussed in § 300.415(k) for all Fund-
financed removal actions.
(d) States shall be responsible for
identifying potential state ARARs for all
Fund-financed removal actions and for
providing such ARARs to EPA in a
timely manner for all EPA-lead removal
actions.
(e) EPA shall consult with a state on
all removal actions to be conducted in
that state.
Subpart G—Trustees for Natural
Resources
§ 300.600 Designation of federal trustees.
(a) Thr President is required to
designate in the National Contingency
Plan those federal officials who are to
act on behalf of the public as trustees
for natural resources. Federal officials
so designated will act pursuant to
section 107(f) of CERCLA and section
311(f)(5) of the Clean Water Act. Natural
resources include:
(1) Natural resources over which the
United States has sovereign rights; and
(2) Natural resources within the
territorial sea, contiguous zone,
exclusive economic zone, and outer
continental shelf belonging to, managed
by, held in trust by, appertaining to, or
otherwise controlled (hereinafter
referred to as "managed or protected")
by the United States.
(b) The following individuals shall be
the designated trustee(s) for general
categories of natural resources. They are
authorized to act pursuant to section
107(f) of CERCLA or section 311(f)(5) of
the Clean Water Act when there is
injury to, destruction of, loss of, or
threat to natural resources as a result of
a release of a hazardous substance or a
discharge of oil. Notwithstanding the
other designations in this section, the
Secretaries of Commerce and the
Interior shall act as trustees of those
resources subject to their respective
management or protection.
(1) Secretary of Commerce. The
Secretary of Commerce shall act as
trustee for natural resources managed or
protected by the Department of
Commerce or by other federal agencies
and that are found in or under waters
navigable by deep draft vessels, in or
under tidally influenced waters, or
waters of the contiguous zone, the
exclusive economic zone, and the outer
continental shelf, and in upland areas
serving as habitat for marine mammals
and other protected species. However,
before the Secretary takes an action
with respect to an affected resource
under the management or protection of
another federal agency, he shall,
whenever practicable, seek to obtain the
concurrence of that other federal
agency. Examples of the Secretary's
trusteeship include marine fishery
resources and their supporting
ecosystems; anadromous fish; certain
endangered species and marine
mammals; and National Marine
Sanctuaries and Estuarine Research
Reserves.
(2) Secretary of the Interior. The
Secretary of the Interior shall act as
trustee for natural resources managed or
protected by the Department of the
Interior. Examples of the Secretary's
trusteeship include migratory birds;
certain anadromous fish, endangered
species, and marine mammals; federally
owned minerals; and certain federally
managed water resources. The Secretary
of the Interior shall also be trustee for
those natural resources for which an
Indian tribe would otherwise act as
trustee in those cases where the United
States acts on behalf of the Indian tribe.
(3) Secretary for the land managing
agency. For natural resources located
on, over, or under land administered by
the United States, the trustee shall be
the head of the Department in which the
land managing agency is found. The
trustees for the principal federal land
managing agencies are the Secretaries of
the Department of the Interior, the
Department of Agriculture, the
Department of Defense, and the
Department of Energy.
(4) Head of authorized agencies. For
natural resources located in the United
States but not otherwise described in
this 'section, the trustee shall be the head
of the federal agency or agencies
authorized to manage or protect those
resources.
§300.605 State trustees.
Slate trustees shall act on behalf of
the public as trustees for natural
resources within the boundary of a state
or belonging to, managed by, controlled
by, or appertaining to such state. For the
purposes of subpart G of this part, the
definition of the term "state" does not
include Indian tribes.
$300.610 Indian tribes.
The tribal chairmen (or heads of the
governing bodies) of Indian tribes, as
defined in 5 300.5, or a person
designated by the tribal officials, shall
act on behalf of the Indian tribes as
trustees for the natural resources
belonging to, managed by, controlled by,
or appertaining to such Indian tribe, or
held in trust for the benefit of such
Indian tribe, or belonging to a member
of such Indian tribe, if such resources
are subject to a trust restriction on
alienation. When the tribal chairman or
head of the tribal governing body
designates another person as trustee,
the tribal chairman or head of the tribal
governing body shall notify the
President of such designation. Such
officials are authorized to act when
there is injury to, destruction of, loss of,
or threat to natural resources as a result
of a release of a hazardous substance.
§ 300.615 Responsibilities of trustees.
(a) Where there are multiple trustees,
because of coexisting or contiguous
natural resources or concurrent
jurisdictions, they should coordinate
and cooperate in carrying out these
responsibilities.
(b) Trustees are responsible for
designating to the RRTs, for inclusion in
the Regional Contingency Plan,
appropriate contacts to receive
notifications from the OSCs/RPMs of
potential injuries to natural resources.
(c) Upon notification or discovery of
injury to, destruction of, loss of, or
threat to natural resources, trustees
may, pursuant to section 107(f) of
CERCLA or section 311(f)(5) of the Clea
Water Act, take the following or other
actions as appropriate:
(1) Conduct a preliminary survey of
the area affected by the discharge or
release to determine if trust resources
under their jurisdiction are, or
potentially may be, affected;
(2) Cooperate with the OSC/RPM in
coordinating assessments,
investigations, and planning;
(3) Carry out damage assessments; 01
-------
8858 Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
(4) Devise and carry out a plan for
restoration, rehabilitation, replacement,
or acquisition of equivalent natural
resources. In assessing damages to
natural resources, the federal, state, and
Indian tribe trustees have the option of
following the procedures for natural
resource damage assessments located at
43 CFR part 11.
(d) The authority of federal trustees
includes, but is not limited to the
following actions:
(1) Requesting that the Attorney
General seek compensation from the
responsible parties for the damages
assessed and for the costs of an
assessment and of restoration planning;
and
(2) Participating in negotiations
between the United States and
potentially responsible parties (PRPs) to
obtain PRP-financed or PRP-conducted
assessments and restorations for injured
resources or protection for threatened
resources and to agree to covenants not
to sue, where appropriate.
(3) Requiring, in consultation with the
lead agency, any person to comply with
the requirements of CERCLA section
104(e) regarding information gathering
and access.
(e) Actions which may be taken by
any trustee pursuant to section 107(f) of
CERCLA or section 311(f)(5) of the Clean
Water Act include, but are not limited
to, any of the following:
(1) Requesting that an authorized
agency issue an administrative order or
pursue injunctive relief against the
parties responsible for the discharge or
release; or
(2) Requesting that the lead agency
remove, or arrange for the removal of. or
provide for remedial action with respect
to, any hazardous substances from a
contaminated medium pursuant to
section 104 of CERCLA.
Subpart H—Participation by Other
Persons
§ 300.700 Activities by other persons.
(a) Genera!. Any person may
undertake a response action to reduce
or eliminate a release of a hazardous
substance, pollutant, or contaminant.
(b) Summary of CERCLA authorities.
The mechanisms available to recover
the costs of response actions under
CERCLA are, in summary:
(1) Section 107(a), wherein any person
may receive a court award of his or her
response costs, plus interest, from the
party or parties found to be liable;
(2) Section lll{a)(2), wherein a private
party, a potentially responsible party
pursuant to a settlement agreement, or
certain foreign entities may file a claim
against the Fund for reimbursement of
response costs;
(3) Section 106(b), wherein any person
who has complied with a section 106(a)
order may petition the Fund for
reimbursement of reasonable costs, plus
interest; and
(4) Section 123, wherein a general
purpose unit of local government may
apply to the Fund under 40 CFR part 310
for reimbursement of the costs of
temporary emergency measures that are
necessary to prevent or mitigate injury
to human health or the environment
associated with a release.
(c) Section 107(a) cost recovery
actions. (1) Responsible parties shall be
liable for all response costs incurred by
the United States government or a State
or an Indian tribe not inconsistent with
the NCR
(2) Responsible parties shall be liable
for necessary costs of response actions
to releases of hazardous substances
incurred by any other person consistent
with the NCP.
(3) For the purpose of cost recovery
under section 107(a)(4)(B) of CERCLA:
(i) A private party response action
will be considered "consistent with the
NCP" if the action, when evaluated as a
whole, is in substantial compliance with
the applicable requirements in
paragraphs (c)(5) and (6) of this section,
and results in a CERCLA-quality
cleanup;
(ii) Any response action carried out in
compliance with the terms of an order
issued by EPA pursuant to section 106 of
CERCLA, or a consent decree entered
into pursuant to section 122 of CERCLA,
will be considered "consistent with the
NCP."
(4) Actions under § 300.700(c)(l) will
not be considered "inconsistent with the
NCP," and actions under § 300.700(c)(2)
will not be considered not "consistent
with the NCP," based on immaterial or
insubstantial deviations from the
provisions of 40 CFR part 300.
(5) The following provisions of this
part are potentially applicable to private
party response actions:
(i) Section 300.150 (on worker health
and safety);
(ii) Section 300.160 (on documentation
and cost recovery);
(iii) Section 300.400(c)(l), (4), (5), and
(7) (on determining the need for a Fund-
financed action); (e) (on permit
requirements) except that the permit
waiver does not apply to private party
response actions; and (g) (on
identification of ARARsj except that
applicable requirements of federal or
state law may not be waived by a
private party;
(iv) Section 300.405(b). (c), and (d) (on
reports of releases to the NRC);
(v) Section 300.410 (on removal site
evaluation) except paragraphs (e)(5) and
(6);
(vi) Section 300.415 (on removal
actions) except paragraphs (a)(2),
(b)(2)(vii), (b)(5), and (f); and including
§ 300.415(i) with regard to meeting
ARARs where practicable except that
private party removal actions must
always comply with the requirements of
applicable law;
(vii) Section 300.420 (on remedial site
evaluation);
(viii) Section 300.430 (on RI/FS and
selection of remedy) except paragraph
(f)(l)(ii)(C)(e) and that applicable
requirements of federal or state law may
not be waived by a private party; and
(ix) Section 300.435 (on RD/RA and
operation and maintenance).
(6) Private parties undertaking
response actions should provide an
opportunity for public comment
concerning the selection of the response
action based on the provisions set out
below, or based on substantially
equivalent state and local requirements.
The following provisions of this part
regarding public participation are
potentially applicable to private party
response actions, with the exception of
administrative record and information
repository requirements stated therein:
(i) Section 300.155 (on public
information and community relations);
(ii) Section 300.415(m) (on community
relations during removal actions);
(iii) Section 300.430(c) (on community
relations during RI/FS) except
paragraph (c)(5);
(iv) Section 300.430(f)(2), (3), and (6)
(on community relations during
selection of remedy); and
(v) Section 300.435(c) (on community
relations during RD/RA and operation
and maintenance).
(7) When selecting the appropriate
remedial action, the methods of
remedying releases listed in Appendix D
of this part may also be appropriate to a
private party response action.
(8) Except for actions taken pursuant
to CERCLA sections 104 or 106 or
response actions for which
reimbursement from the Fund will be
sought, any action to be taken by the
lead agency listed in paragraphs (c)(5)
through (c)(7) may be taken by the
person carrying out the response action.
(d) Section lll(a)(2) claims. (1)
Persons, other than those listed in
paragraphs (d)(l)(i) through (iii) of this
section, may be able to receive
reimbursement of response costs by
means of a claim against the Fund. The
categories of persons excluded from
pursuing this claims authority are:
(i) Federal government;
-------
Federal Register / Vol. 55. No. 46 / Thursday, March 8, 1990 / Rules and Regulations 8859
(ii) State governments, and their
political subdivisions, unless they are
potentially responsible parties covered
by an order or consent decree pursuant
to section 122 of CERCLA; and
(iii) Persons operating under a
procurement contract or an assistance
agreement with the United States with
respect to matters covered by that
contract or assistance agreement, unless
specifically provided therein.
(2) In order to be reimbursed by the
Fund, an eligible person must notify the
Administrator of EPA or designee prior
to taking a response action and receive
prior approval i.e., "preauthorization,"
for such action.
(3) Preauthorization is EPA's prior
approval to submit a claim against the
Fund for necessary response costs
incurred as a result of carrying out the
NCP. All applications for
preauthorization will be reviewed to
determine whether the request should
receive priority for funding. EPA, in its
discretion, may grant preauthorization
of a claim. Preauthorization will be
considered only for.
(i) Removal actions pursuant to
§ 300.415;
(ii) CERCLA section 104(b) activities;
and
(iii) Remedial actions at National
Priorities List sites pursuant to § 300.435.
(4) To receive EPA's prior approval,
the eligible person must:
(i) Demonstrate technical and other
capabilities to respond safely and
effectively to releases of hazardous
substances, pollutants, or contaminants;
and
(ii) Establish that the action will be
consistent with the NCP in accordance
with the elements set forth in
paragraphs (c)(5) through (8) of this
•ection.
(5) EPA will grant preauthorization to
a claim by a party it determines to be
potentially liable under section 107 of
CERCLA only in accordance with an
order issued pursuant to section 106 of
CERCLA, or a settlement with the
federal government in accordance with
section 122 of CERCLA.
(6) Preauthorization does not establish
an enforceable contractual relationship
between EPA and the claimant
(7) Preauthorization represents EPA's
commitment that if funds are
appropriated for response actions, the
response action is conducted in
accordance with the preauthorization
decision document and costs are
reasonable and necessary,
reimbursement will be made from the
Superfund, up to the maximum amount
provided in the preauthorization
decision document.
(8) For a claim to be awarded under
section 111 of CERCLA, EPA must
certify that the costs were necessary
and consistent with the preauthorization
decision document.
(e) Section 106(b) petition. Subject to
conditions specified in CERCLA section
106(b), any person who has complied
with an order issued after October 16,
1986 pursuant to section 106(a) of
CERCLA, may seek reimbursement for
response costs incurred in complying
with that order unless the person has
waived that right
(f) Section 123 reimbursement to local
governments. Any general purpose unit
of local government for a political
subdivision that is affected by a release
may receive reimbursement for the costs
of temporary emergency measures
necessary to prevent or mitigate injury
to human health or the environment
subject to the conditions set forth in 40
CFR part 310. Such reimbursement may
not exceed $25,000 for a single response.
(g) Release from liability.
Implementation of response measures
by potentially responsible parties or by
any other person does not release those
parties from liability under section
107(a) of CERCLA, except as provided in
a settlement under section 122 of
CERCLA or a federal court judgment.
Subpart I—Administrative Record for
Selection of Response Action
(300.800 Establishment of m
administrative record.
(a) General requirement. The lead
agency shall establish an administrative
record that contains the documents that
form the basis for the selection of a
response action. The lead agency shall
compile and maintain the administrative
record in accordance with this subpart
(b) Administrative records for federal
facilities. (I) If a federal agency other
than EPA is the lead agency for a
federal facility, the federal agency shall
compile and maintain the administrative
record for the selection of the response
action for that facility in accordance
with this subpart. EPA may furnish
documents which the federal agency
shall place in the administrative record
file to ensure that the administrative
record includes all documents that form
the basis for the selection of the
response action.
(2) EPA or the U.S. Coast Guard shall
compile and maintain the administrative
record when it is the lead agency for a
federal facility.
(3) If EPA is involved in the selection
of the response action at a federal
facility on the NPL, the federal agency
acting as the lead agency shall provide
EPA with a copy of the index of
documents included in the
administrative record file, the RJ/FS
workplan, the RI/FS released for public
comment, the proposed plan, any public
comments received on the RI/FS and
proposed plan, and any other documents
EPA may request on a case-by-case
basis.
(c) Administrative record for state-
lead sites. If a state is the lead agency
for a site, the state shall compile and
maintain the administrative record for
the selection of the response action for
that site in accordance with this
subpart EPA may require the state to
place additional documents in the
administrative record file to ensure that
the administrative record includes all
documents which form the basis for the
selection of the response action. The
state shall provide EPA with a copy of
the index of documents included in the
administrative record file, the RI/FS
workplan, the RI/FS released for public
comment the proposed plan, any public
comments received on the RI/FS and
proposed plan, and any other document!
EPA may request on a case-by-case
basis.
(d) Applicability. This subpart applies
to all response actions taken under
section 104 of CERCLA or sought,
secured, or ordered administratively or
judicially under section 106 of CERCLA,
as follows:
(1) Remedial actions where the
remedial investigation commenced aftei
the promulgation of these regulations;
and
(2) Removal actions where the action
memorandum is signed after the
promulgation of these regulations.
(e) For those response actions not
included in paragraph (d} of this sectioi
the lead agency shall comply with this
subpart to the extent practicable.
(300.805 Location of the administrative
record tUe.
(a) The lead agency shall establish a
docket at an office of the lead agency o
other central location at which
documents included in the
administrative record file shall be
located and a copy of the documents
included in the administrative record
file shall also be made available for
public inspection at or near the site at
issue, except as provided below:
(1) Sampling and testing data, qualit
control and quality assurance
documentation, and chain of custody
forms, need not be located at or near tl
site at issue or at the central location,
provided that the index to the
administrative record file indicates th«
location and availability of this
information.
-------
8860
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
(2) Guidance documents not generated
specifically for the site at issue need not
be located at or near the site at issue,
provided that they are maintained at the
central location and the index to the
administrative record file indicates the
location and availability of these
guidance documents.
(3) Publicly available technical
literature not generated for the site at
issue, such as engineering textbooks,
articles from technical journals, and
lexicological profiles, need not be
located at or near the site at issue or at
the central location, provided that the
literature is listed in the index to the
administrative record file or the
literature is cited in a document in the
record.
(4) Documents included in the
confidential portion of the
administrative record file shall be
located only in the central location.
(5) The administrative record for a
removal action where the release or
threat of release requires that on-site
removal activities be initiated within
hours of the lead agency's determination
that a removal is appropriate and on-
site removal activities cease within 30
days of initiation, need be available for
public inspection only at the central
location.
(b) Where documents are placed in
the central location but not in the file
located at or near the site, such
documents shall be added to the file
located at or near the site upon request,
except for documents included in
paragraph (a)(4) of this section.
(c) The lead agency may make the
administrative record file available to
the public in microform.
S 300.810 Content* of the administrative
record flic.
(a) Contents. The administrative
record file for selection of a response
action typically, but not in all cases, will
contain the following types of
documents:
(1) Documents containing factual
information, data and analysis of the
factual information, and data that may
form a basis for the selection of a
response action. Such documents may
include verified sampling data, quality
control and quality assurance
documentation, chain of custody forms,
site inspection reports, preliminary
assessment and site evaluation reports,
ATSDR health assessments, documents
supporting the lead agency's
determination of imminent and
substantial endangerment, public health
evaluations, and technical and
engineering evaluations. In addition, for
remedial actions, such documents may
include approved workplans for the
remedial investigation/feasibility study,
state documentation of applicable or
relevant and appropriate requirements,
and the RJ/FS;
(2) Guidance documents, technical
literature, and site-specific policy
memoranda that may form a basis for
the selection of the response action.
Such documents may include guidance
on conducting remedial investigations
and feasibility studies, guidance on
determining applicable or relevant and
appropriate requirements, guidance on
risk/exposure assessments, engineering
handbooks, articles from technical
journals, memoranda on the application
of a specific regulation to a site, and
memoranda on off-site disposal
capacity;
(3) Documents received, published, or
made available to the public under
§ 300.815 for remedial actions, or
§ 300.820 for removal actions. Such
documents may include notice of
availability of the administrative record
file, community relations plan, proposed
plan for remedial action, notices of
public comment periods, public
comments and information received by
the lead agency, and responses to
significant comments;
(4) Decision documents. Such
documents may include action
memoranda and records of decision;
(5) Enforcement orders. Such
documents may include administrative
orders and consent decrees; and
(6) An index of the documents
included in the administrative record
file. If documents are customarily
. grouped together, as with sampling data
chain of custody documents, they may
be listed as a group in the index to the
administrative record file.
(b) Documents not included in the
administrative record file. The lead
agency is not required to include
documents in the administrative record
file which do not form a basis for the
selection of the response action. Such
documents include but are not limited to
draft documents, internal memoranda,
and day-to-day notes of staff unless
such documents contain information
that forms the basis of selection of the
response action and the information is
not included in any other document in
the administrative record file.
(c) Privileged documents. Privileged
documents shall not be included in the
record file except as provided in
paragraph (d) of this section or where
such privilege is waived. Privileged
documents include but are not limited to
documents subject to the attorney-client,
attorney work product deliberative
process, or other applicable privilege.
(d) Confidential file. If information
which forms the basis for the selection
of a response action is included only in
a document containing confidential or
privileged information and is not
otherwise available to the public, the
information, to the extent feasible, shall
be summarized in such a way as to
make it disclosable and the summary
shall be placed in the publicly available
portion of the administrative record file.
The confidential or privileged document
itself shall be placed in the confidential
portion of the administrative record file.
If information, such as confidential
business information, cannot be
summarized in a disclosable manner,
the information shall be placed only in
the confidential portion of the
administrative record file. All
documents contained in the confidential
portion of the administrative record file
shall be listed in the index to the file.
$300415 Administrative record flte for a
remedial action.
(a] The administrative record file for
the selection of a remedial action shall
be made available for public inspection
at the commencement of the remedial
investigation phase. At such time, the
lead agency shall publish in a major
local newspaper of general circulation a
notice of the availability of the
administrative record file.
(b) The lead agency shall provide a
public comment period as specified in
5 300.430(0(3) so that interested persons
may submit comments on the selection
of die remedial action for inclusion in
the administrative record file. The lead
agency is encouraged to consider and
respond as appropriate to significant
comments that were submitted prior to
the public comment period. A written
response to significant comments
submitted during the public comment
period shall be included in the
administrative record file.
(c) The lead agency shall comply with
the public participation procedures
required in § 300.430(f)(3) and shall
document such compliance in the
administrative record.
(d) Documents generated or received
after the record of decision is signed
•hall be added to the administrative
record file only as provided in { 300.825.
(300.820 Administrative record flte for a
removal action.
(a) If, based on the site evaluation, the
lead agency determines that a removal
action is appropriate and that a planning
period of at least six months exists
before on-site removal activities must be
initiated:
(1) The administrative record file shall
be made available for public inspection
when the engineering evaluation/cost
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations 8861
analysis (EE/CA) is made available for
public comment. At such time, the lead
agency shall publish in a major local
newspaper of general circulation a
notice of the availability of the
administrative record file.
(2) The lead agency shall provide a
public comment period as specified in
i 300.415 so that interested persons may
•ubmit comments on the selection of the
removal action for inclusion in the
administrative record file. The lead
agency is encouraged to consider and
respond, as appropriate, to significant
comments that were submitted prior to
the public comment period. A written
response to significant comments
submitted during the public comment
period shall be included in the
administrative record file.
(3) The lead agency shall comply with
the public participation procedures of
| 300.415(m) and shall document
compliance with § 300.415(m)(3)(i)
through (iii) in the administrative record
file.
(4) Documents generated or received
after the decision document is signed
•hall be added to the administrative
record file only as provided in § 300.825.
(b) For all removal actions not
included in paragraph (a) of this section:
(1) Documents included in the
administrative record file shall be made
available for public inspection no later
than 60 days after initiation of on-site
removal activity. At such time, the lead
agency shall publish in a major local
newspaper of general circulation a
notice of availability of the
administrative record file.
(2) The lead agency shall, as
appropriate, provide a public comment
period of not less than 30 days beginning
at the time the administrative record file
is made available to the public. The lead
agency is encouraged to consider and
respond, as appropriate, to significant
comments that were submitted prior to
the public comment period. A written
response to significant comments
submitted during the public comment
period shall be included in the
administrative record file.
(3) Documents generated or received
after the decision document is signed
•hall be added to the administrative
record file only as provided in | 300.825.
1900.825 Record requirement* after the
decision document Is signed.
(a) The lead agency may add
documents to the administrative record
file after the decision document
•electing the response action has been
signed if:
(1) The documents concern a portion
of a response action decision that the
decision document does not address or
reserves to be decided at a later date; or
(2) An explanation of significant
differences required by $ 300.435(c), or
an amended decision document is
issued, in which case, the explanation of
significant differences or amended
decision document and all documents
that form the basis for the decision to
modify the response action shall be
added to the administrative record file.
(b) The lead agency may hold
additional public comment periods or
extend the time for the submission of
public comment after a decision
document has been signed on any issues
concerning selection of the response
action. Such comment shall be limited to
the issues for which the lead agency has
requested additional comment. All
additional comments submitted during
such comment periods that are
responsive to the request and any
response to these comments, along with
documents supporting the request and
any final decision with respect to the
issue, shall be placed in the
administrative record file.
(c) The lead agency is required to
consider comments submitted by
interested persons after the close of the
public comment period only to the
extent that the comments contain
significant information not contained
elsewhere in the administrative record
file which could not have been
submitted during the public comment
period and which substantially support
the need to significantly alter the
response action. All such comments and
any responses thereto shall be placed in
the administrative record file.
Subpart J—UM of Dispersants and
Other Chemical*
{300.900 General.
(a) Section 311(c)(2)(G) of the Clean
Water Act requires that EPA prepare a
schedule of dispersants and other
chemicals, if any, that may be used in
carrying out the NCR This subpart
makes provisions for such a schedule.
(b) This subpart applies to the
navigable waters of the United States
and adjoining shorelines, the waters of
the contiguous zone, and the high seas
beyond the contiguous zone in
connection with activities under the
Outer Continental Shelf Lands Act.
activities under the Deepwater Port Act
of 1974, or activities that may affect
natural resources belonging to,
appertaining to, or under the exclusive
management authority of the United
States, including resources under the
Magnuson Fishery Conservation and
Management Act of 1976.
(c) This subpart applies to the use of
any chemical agents or other additives
as defined in subpart A of this part that
may be used to remove or control oil
discharges.
1300.905 NCP Product Schedule.
(a) Oil Discharges. (1) EPA shall
maintain a schedule of dispersants and
other chemical or biological products
that may be authorized for use on oil
discharges in accordance with the
procedures set forth in § 300.910. This
schedule, called the NCP Product
Schedule, may be obtained from the
Emergency Response Division (OS-210),
U.S. Environmental Protection Agency,
Washington, DC 20460. The telephone
number is 1-202-382-2190.
(2) Products may be added to the NCP
Product Schedule by the process
specified in $ 300.920.
(b) Hazardous Substance Releases
[Reserved].
§300.910 Authorization of use.
(a) The OSC, with the concurrence of
the EPA representative to the RRT and,
as appropriate, the concurrence of the
RRT representatives from the states
with jurisdiction over the navigable
waters threatened by ths release or
discharge, and in consultation with the
DOC and DOI natural resource trustees,
when practicable, may authorize the use
of dispersants, surface collecting agents,
biological additives, or miscellaneous oil
spill control agents on the oil discharge,
provided that the dispersants, surface
collecting agents, biological additives, or
miscellaneous oil spill control agents are
listed on the NCP Product Schedule.
(b) The OSC, with 'the concurrence of
the EPA representative to the RRT and,
as appropriate, the concurrence of the
RRT representatives from the states '
with jurisdiction over the navigable
waters threatened by the release or
discharge, and in consultation with the
DOC and DOI natural resource trustees,
when practicable, may authorize the use
of burning agents on a case-by-case
basis.
(c) The OSC may authorize the use of
any dispersant, surface collecting agent,
other chemical agent, burning agent,
biological additive, or miscellaneous oil
spill control agent, including products
not listed on the NCP Product Schedule,
without obtaining the concurrence of the
EPA representative to the RRT. the RRT
representatives from the states with
Jurisdiction over the navigable waters
threatened by the release or discharge,
when, in the judgment of the OSC. the
use of the product is necessary to
prevent or substantially reduce a hazard
to human life. The OSC is to inform the
-------
8862
Federal Register / Vol. 55. No. 46 / Thursday, March 8. 1990 / Rules and Regulations
EPA RRT representative and. as
appropriate, the RRT representatives
from the affected states and, when
practicable, the DOC/OOI natural
resource trustees of the use of a product
not on the Schedule as soon as possible
and, pursuant to the provisions in
paragraph (a) of this section, obtain
their concurrence or their comments on
its continued use once the threat to
human life has subsided.
(d) Sinking agents shall not be
authorized for application to oil
discharges.
(e) RRTs shall, as appropriate,
consider, as part of their planning
activities, the appropriateness of using
the dispersants, surface collecting
agents, biological additives, or
miscellaneous oil spill control agents
listed on the NCP Product Schedule, and
the appropriateness of using burning
agents. Regional Contingency Plans
(RCPs) shall, as appropriate, address the
use of such products in specific
contexts. If the RRT representatives
from the states with jurisdiction over the
waters of the area to which an RCP
applies and the DOC and DOI natural
resource trustees approve in advance
the use of certain products under
specified circumstances as described in
the RCP, the OSC may authorize the use
of the products without obtaining the
specific concurrences described in
paragraphs (a) and (b) of this section.
§300.915 Data requirements.
(a) Dispersants. (I) Name, brand, or
trademark, if any, under which the
dispersant is sold.
(2) Name, address, and telephone
number of the manufacturer, importer.
or vendor.
(3) Name, address, and telephone
number of primary distributors or sales
outlets.
(4) Special handling and worker
precautions for storage and field
application. Maximum and minimum
storage temperatures, to include
optimum ranges as well as temperatures
that will cause phase separations,
chemical changes, or other alterations to
the effectiveness of the product.
(5) Shelf life.
(6) Recommended application
procedures, concentrations, and
conditions for use depending upon water
salinity, water temperature, types and
ages of the pollutants, and any other
application restrictions.
(7) Dispersant Toxicity. Use standard
toxicity test methods described hi
Appendix C to part 300.
(6) Effectiveness. Use standard
effectiveness test methods described in
Appendix C to part 300. Manufacturers
are also encouraged to provide data on
product performance under conditions
other than those captured by these tests.
(9) The following data requirements
incorporate by reference standards from
the 1988 Annual Book of ASTM
Standards. American Society for Testing
and Materials, 1916 Race Street,
Philadelphia, Pennsylvania 19103. This
incorporation by reference was
approved by the Director of the Federal
Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51.»
(i) Flash Point—Select appropriate
method from the following:
(A) ASTM—D 56-87, "Standard Test
Method for Flash Point by Tag Closed
Tester";
(B) ASTM—D 92-85, "Standard Test
Method for Flash and Fire Points by
Cleveland Open Cup";
(C) ASTM—D 93-85. "Standard Test
Methods for Flash Point by Pensky-
Martens Closed Tester";
(D) ASTM—D1310-86, "Standard
Test Method for Flash Point and Fire
Point of Liquids by Tag Open-Cup
Apparatus"; or
(E) ASTM—D 3278-82, "Standard Test
Methods for Flash Point of Liquids by
Setaflash Closed-Cup Apparatus."
(ii) Pour Point—Use ASTM—D 97-87,
"Standard Test Method for Pour Point of
Petroleum Oils."
(iii) Viscosity—Use ASTM—D 445-86.
"Standard Test Method for Kinematic
Viscosity of Transparent and Opaque
Liquids (and the Calculation of Dynamic
Viscosity)."
(iv) Specific Gravity—Use ASTM—D
1298-45, "Standard Test Method for
Density, Relative Density (Specific
Gravity), or API Gravity of Crude
Petroleum and Liquid Petroleum
Products by Hydrometer Method."
(v) pH—Use ASTM—D 1293-64,
"Standard Test Methods for pH of
Water."
(10) Dispersing Agent Components.
Itemize by chemical name and
percentage by weight each component
of the total formulation. The percentages
will include maximum, minimum, and
average weights in order to reflect
quality control variations in .
manufacture or formulation. In addition
to the chemical information provided in
response to the first two sentences,
identify the major components in at
least the following categories: surface
active agents, solvents, and additives.
(11) Heavy Metals, Cyanide, and
Chlorinated Hydrocarbons. Using
1 Copiei of these itandardi may be obtained from
the publisher. Copies may be inspected at the U.S.
Environmental Protection Agency, 401M St., SW.,
Room LG. Washington. DC or at the Office of the
Federal Regiiter. 1100 L Street. NW., Room MOT,
Washington. DC
standard test procedures, state the
concentrations or upper limits of the
following materials:
(i) Arsenic, cadmium, chromium,
copper, lead, mercury, nickel, zinc, plus
any other metals that may be
reasonably expected to be in the
•ample. Atomic absorption methods
should be used and the detailed
analytical methods and sample
preparation shall be fully described.
(ii) Cyanide. Standard calorimetric
procedures should be used.
(iii) Chlorinated hydrocarbons. Gas
chromatography should be used and the
detailed analytical methods and sample
preparation shall be fully described.
(12) The technical product data
submission shall include the identity of
the laboratory that performed the
required tests, the qualifications of the
laboratory staff, including professional
biographical information for individuals
responsible for any tests, and laboratory
experience with similar tests.
Laboratories performing toxicity tests
for dispersant toxicity must demonstrate
previous toxicity test experience in
order for their results to be accepted. It
is the responsibility of the submitter to
•elect competent analytical laboratories
based on the guidelines contained
herein. EPA reserves the right to refuse
to accept a submission of technical
product data because of lack of
qualification of the analytical
laboratory, significant variance between
submitted data and any laboratory
confirmation performed by EPA, or other
circumstances that would result in
inadequate or inaccurate information on
the dispersing agent.
(b) Surface collecting agents. (1)
Name, brand, or trademark, if any,
under which the product is sold.
(2) Name, address, and telephone
number of the manufacturer, importer,
or vendor.
(3) Name, address, and telephone
number of primary distributors or sales
outlets.
(4) Special handling and worker
precautions for storage and field
application. Maximum and minimum
storage temperatures, to include
optimum ranges as well as temperatures
that will cause phase separations,
chemical changes, or other alterations to
the effectiveness of the product.
(5) Shelf life.
(8) Recommended application
procedures, concentrations, and
conditions for use depending upon water
salinity, water temperature, types and
ages of the pollutants, and any other
application restrictions.
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8863
(7) Toxicity. Use standard toxicity test
methods described in Appendix C to
Part 300.
(8) The following data requirements
incorporate by reference standards from
the 1988 Annual Book of ASTM
Standards. American Society for Testing
and Materials, 1916 Race Street,
Philadelphia, Pennsylvania 19103. This
incorporation by reference was
approved by the Director of the Federal
Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51.*
(i) Flash Point—Select appropriate
method from the following:
(A) ASTM—D 56-«7. "Standard Test
Method for Flash Point by Tag Closed
Tester";
(B) ASTM—D 92-85. "Standard Test
Method for Flash and Fire Points by
Cleveland Open Cup";
(C) ASTM—D 93-85, "Standard Test
Methods for Flash Point by Pensky-
Martens Closed Tester";
(D) ASTM—D1310-86, "Standard
Test Method for Flash Point and Fire
Point of Liquids by Tag Open-Cup
Apparatus"; or
(E) ASTM—D 3278-82, "Standard Test
Methods for Flash Point of Liquids by
Setaflash Closed-Cup Apparatus."
(ii) Pour Point—Use ASTM—D 97-87,
"Standard Test Method for Pour Point of
Petroleum Oils."
(iii) Viscosity—Use ASTM—D 445-86.
"Standard Test Method for Kinematic
Viscosity of Transparent and Opaque
Liquids (and the Calculation of Dynamic
Viscosity}."
(iv) Specific Gravity—Use ASTM—D
1298-85, "Standard Test Method for
Density, Relative Density (Specific
Gravity), or API Gravity of Crude
Petroleum and Liquid Petroleum
Products by Hydrometer Method."
(v) pH—Use ASTM—D 1293-84,
"Standard Test Methods for pH of
Water."
(9) Test to Distinguish Between
Surface Collecting Agents and Other
Chemical Agents.
(i) Method Summary—Five milliliters
of the chemical under test are mixed
with 95 milliliters of distilled water and
allowed to stand undisturbed for one
hour. Then the volume of the upper
phase is determined to the nearest one
milliliter.
(ii) Apparatus.
(A) Mixing Cylinder 100 milliliter
subdivisions and fitted with a glass
•topper.
* Copiei of these standard! may be obtained from
the publisher. Copies may be inspected at the US.
Environmental Protection Agency. 401M St., SW.,
Room LG, Washington, DC, or at the Office of the
Federal Register. 1100 L Street. NW, Room 8401.
Washington, DC.
(B) Pipettes: Volumetric pipette, 5.0
milliliter.
(C) Timers.
(iii) Procedure—Add 95 milliliters of
distilled water at 22 *C, plus or minus 3
*C, to a 100 milliliter mixing cylinder. To
the surface of the water in the mixing
cylinder, add 5.0 milliliters of the
chemical under test. Insert the stopper
and invert the cylinder five times in ten
seconds. Set upright for one hour at 22
*C, plus or minus 3 "C, and then measure
the chemical layer at the surface of the
water. If the major portion of the
chemical added (75 percent) is at the
water surface as a separate and easily
distinguished layer, the product is a
surface collecting agent.
(10) Surface Collecting Agent
Components. Itemize by chemical name
and percentage by weight each
component of the total formulation. The
percentages should include maximum,
minimum, and average weights in order
to reflect quality control variations in
manufacture or formulation. In addition
to the chemical information provided in
response to the first two sentences,
identify the major components in at
least the following categories: surface
action agents, solvents, and additives.
(11) Heavy Metals, Cyanide, and
Chlorinated Hydrocarbons. Follow
specifications in paragraph (a)(15) of
this section.
(12) Analytical Laboratory
Requirements for Technical Product
Data. Follow specifications in paragraph
(a)(16) of this section.
(c) Biological Additives. (I) Name,
brand, or trademark, if any, under which
the additive is sold.
(2) Name, address, and telephone
number of the manufacturer, importer,
or vendor.
(3) Name, address, and telephone
number of primary distributors or sales
outlets.
(4) Special handling and worker
precautions for storage and field
application. Maximum and minimum
storage temperatures.
(5) Shelf life.
(6) Recommended application
procedures, concentrations, and
conditions for use, depending upon
water salinity, water temperature, types
and ages of the pollutants, and any other
application restrictions.
(7) Statements and supporting data on
the effectiveness of the additive,
including degradation rates, and on the
test conditions under which the
effectiveness data were obtained.
(8) For microbiological cultures,
furnish the following information:
(i) Listing of all microorganisms by
species.
(ii) Percentage of each species in the
composition of the additive.
(iii) Optimum pH, temperature, and
salinity ranges for use of the additive,
and maximum and minimum pH,
temperature, and salinity levels above
or below which the effectiveness of the
additive is reduced to half its optimum
capacity.
(iv) Special nutrient requirements, if
any.
(v) Separate listing of the following,
and test methods for such
determinations: Salmonella, fecal
coliform, Shigella, Staphylococcus
Coagulase positive, and Beta Hemolytic
Streptococci.
(9) For enzyme additives furnish the
following information:
(i) Enzyme name(s).
(ii) Internationa] Union of
Biochemistry (I.U.B.) numbers).
(iii) Source of the enzyme.
(iv) Units.
(v) Specific Activity.
(vi) Optimum pH, temperature, and
salinity ranges for use of the additive,
and maximum and minimum pH,
temperature, and salinity levels above
or below which the effectiveness of the
additive is reduced to half its optimum
capacity.
(vii) Enzyme shelf life.
(viii) Enzyme optimum storage
conditions.
(10) Laboratory Requirements for
Technical Product Data. Follow
specifications in paragraph (a) (18) of
this section.
(d) Burning Agents. EPA does not
require technical product data
submissions for burning agents and doei
not include burning agents on the NCP
Product Schedule.
(e) Miscellaneous Oil Spill Control
Agents. (1) Name, brand, or trademark,
if any, under which the miscellaneous
oil spill control agent is sold.
(2) Name, address, and telephone
number of the manufacturer, importer,
or vendor.
(3) Name, address, and telephone
number of primary distributors or sales
outlets.
(4) Special handling and worker
precautions for storage and field
application. Maximum and minimum
storage temperatures, to include
optimum ranges as well as temperature
that will cause phase separations,
chemical changes, or other alternatives
to the effectiveness of the product
(5) Shelf life.
(8) Recommended application
procedures, concentrations, and
conditions for use depending upon wat
salinity, water temperature, types and
-------
8864
Federal Register / Vol. 55, No. 46 / Thursday. March 8. 1990 / Rules and Regulations
ages of the pollutants, and any other
application restrictions.
(7) Toxicity. Use standard toxicity test
methods described in Appendix C to
part 300.
(8) The following data requirements
incorporate by reference standards from
the 1988 Annual Book of ASTM
Standards. American Society for Testing
and Materials, 1916 Race Street,
Philadelphia, Pennsylvania 19103. This
incorporation by reference was
approved by the Director of the Federal
Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51."
(i) Flash Point—Select appropriate
method from the following:
(A) ASTM—D 56-87, "Standard Test
Method for Flash Point by Tag Closed
Tester";
(B) ASTM—D 92-85, "Standard Test
Method for Flash and Fire Points by
Cleveland Open Cup";
(C) ASTM—D 93-65, "Standard Test
Methods for Flash Point by Pensky-
Martens Closed Tester";
(D) ASTM—D1310-86, "Standard
Test Method for Flash Point and Fire
Point of Liquids by Tag Open-Cup
Apparatus"; or
(E) ASTM—D 3278-82. "Standard Test
Methods for Flash Point of Liquids by
Setaflash Closed-Cup Apparatus."
(ii) Pour Point—Use ASTM—D 97-67,
"Standard Test Method for Pour Point of
Petroleum Oils."
(Hi) Viscosity—Use ASTM—D 445-86,
"Standard Test Method for Kinematic
Viscosity of Transparent and Opaque
Liquids (and the Calculation of Dynamic
Viscosity)."
(iv) Specific Gravity—Use ASTM—D
1298-85, "Standard Test Method for
Density, Relative Density (Specific
Gravity), or API Gravity of Crude
Petroleum and Liquid Petroleum
Products by Hydrometer Method."
(v) pH—Use ASTM—D 1293-84,
"Standard Test Methods for pH of
Water."
(9) Miscellaneous Oil Spill Control
Agent Components. Itemize by chemical
name and percentage by weight each
component of the total formulation. The
percentages should include maximum,
minimum, and average weights in order
to reflect quality control variations in
manufacture or formulation. In addition
to the chemical information provided in
response to the first two sentences,
identify the major components in at
least the following categories: surface
active agents, solvents, and additives.
* Copiei of these standards may be obtained from
the publiiher. Copies may be impeded at the U.S.
Environmental Protection Agency. 401 M St., SW.,
Room LG. Washington. DC, or at the Office of the
Federal Register. 1100 L Street. NW» Room 8401.
Washington. DC.
(10) Heavy Metals. Cyanide, and
Chlorinated Hydrocarbons. Follow
specifications in paragraph (a)(15) of
this section.
(11) For any miscellaneous oil spill
control agent that contains
microbiological cultures or enzyme
additives, furnish the information
specified in paragraphs (c)(8) and (c)(9)
of this section, as appropriate.
(12) Analytical Laboratory
Requirements for Technical Product
Data. Follow specifications in paragraph
(a)(16) of this section.
§300.920 Addition of products to
schedule.
(a) To add a dispereant, surface
collecting agent, biological additive, or
miscellaneous oil spill control agent to
the NCP Product Schedule, the technical
product data specified in § 300.915 must
be submitted to the Emergency
Response Division (OS-210), U.S.
Environmental Protection Agency, 401M
Street, SW., Washington, DC 20460. If
EPA determines that the required data
were submitted, EPA will add the
product to the schedule.
(b) EPA will inform the submitter in
writing, within 60 days of the receipt of
technical product data, of its decision on
adding the product to the schedule.
(c) The submitter may assert that
certain information in the technical
product data submissions is confidential
business information. EPA will handle
such claims pursuant to the provisions
in 40 CFR part 2. subpart B. Such
information must be submitted
separately from non-confidential
information, clearly identified, and
'clearly marked "Confidential Business
Information." If the submitter fails to
make such a claim at the time of
submittal, EPA may make the
information available to the public
without further notice.
(d) The submitter must notify EPA of
any changes in the composition,
formulation, or application of the
dispersant, surface collecting agent,
biological additive, or miscellaneous oil
spill control agent. On the basis of this
data, EPA may require retesting of the
product if the change is likely to affect
the effectiveness or toxicity of the
product.
(e) The listing of a product on the NCP
Product Schedule does not constitute
approval of the product. To avoid
possible misinterpretation or
misrepresentation, any label,
advertisement, or technical literature
that refers to the placement of the
product on the NCP Schedule must
either reproduce in its entirety EPA's
written statement that it will add the
product to the NCP Product Schedule
under § 300.920(b), or include the
disclaimer shown below. If the
disclaimer is used, it must be
conspicuous and must be fully ,
reproduced. Failure to comply with
these restrictions or any other improper
attempt to demonstrate the approval of
the product by any NRT or other U.S.
Government agency shall constitute
grounds for removing the product from
the NCP Product Schedule.
Disclaimer
[PRODUCT NAME] is on the U.S.
Environmental Protection Agency's NCP
Product Schedule. This listing does NOT
mean that EPA approves, recommends,
licenses, certifies, or authorizes the use of
[product name] on an oil discharge. This
listing means only that data have been
submitted to EPA as required by subpart) of
the National Contingency Plan, { 300.915.
Subpart K—Federal Facilities
[Reserved]
3. Units 1.0, 2.0, and 4.0 of Appendix C
to part 300 are amended by revising the
first sentence of subunit 1.1, and
subunits 2.5 (step 13), and 2.6 (steps 15
and 16) and DC, to read as follows:
Appendix C to Part 300—Revised Standard
Dispenant Effectiveness and Toxicity Tests
1.0 Introduction
1.1 Scope and Application. These
methods apply to "dispersants" involving
subpart J (Use of Dispersants and Other
Chemicals) in 40 CFR part 300 (National Oil
and Hazardous Substances Pollution
Contingency Plan). * * *
2.0 Revised Standard Dispersant
Effectiveness Test
*****
2.5* * *
* * * « •
13. Spectrophotometrically determine the
absorbance of the extract using the identical
wavelength and cell used to calibrate the
spectrophotometer. From the calibration
curve, determine the concentration of oil in
the chloroform.
Compute the concentration of oil in the
sample as follows:
Ci X (volume of chloroform used)
- -
(volume of sample)
(2)
where:
C*, is the concentration of dispersed oil in the
•ample and Ci is the measured concentration
of oil in the chloroform extract.
Note that the standard sample volume is
500 ml and the volume of chloroform used
should also be expressed in ml.
Repeat steps 1 through 13 at least three
times for each of the three required volumes
of dispersant.
-------
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
8865
2.6* **
• • * • *
IS. Spectrophotometrically determine the
absorbance of the extract using the identical
wavelength and cell used to calibrate the
•pectrophotometer. From the calibration
curve, determine the corresponding
concentration of oil in the chloroform.
Compute the dispersant blank correction for
25 ml of dispersant as follows:
dx (volume of chloroform used)
D (3)
(volume of sample]
where:
D is the blank correction for 25 ml of
dispersant, and d is the measured
concentration of oil in the chloroform extract.
Note that the standard sample volume is
500 ml and the volume of chloroform used
should also be expressed in ml.
The Disperaant Blank Correction (DBC) for
other volumes of dispersant used in a test
may then be computed as:
DBC
Dx (volume in ml of
dispersants used)
25ml
(4)
16. Clean the test tank and prepare the
synthetic seawater at 23 ±1 *C as described
in Step 1. Do not install the containment
cylinder. Prepare 100 ml of test oil as
described in Steps 4 and 5, and add it to the
test tank. Continue the test procedure as
described in Steps B through 13. The Oil
Blank Correction (OBC) is:
OBC
Ci X (volume of chloroform
used)
(volume of sample)
(5)
4.0 Summary Technical Product Test Data
Format
K. Physical Properties of Dispersant/
Surface Collecting Agent-
1. Flash Point: (*F).
2. Pour Point: (T).
3. Viscosity: at 'F
(centistokes).
4. Specific Gravity: at *F.
5. pH: (10 percent solution if hydrocarbon
based).
B. Surface Active Agents (Dispersants).'
7. Solvents (Dispersants).1
8. Additives (Dispersants).
9. Solubility (Surface Collecting Agents).
• * * ft ft
4. Appendix D is being added to part
300 to read as follows:
1 If the lubmitter claim* that the information
preiented under thii subheading it confidential, thi*
information should be submitted on a separate
sheet of paper clearly labeled according to the
subheading and entitled "Confidential Information."
Appendix D to Part 300—Appropriate Actions
and Methods of Remedying Releases
(a) This Appendix D to part 300 describes
types of remedial actions generally
appropriate for specific situations commonly
found at remedial sites and lists methods for
remedying releases that may be considered
by the lead agency to accomplish a particular
response action. This list shall not be
considered inclusive of all possible methods
of remedying releases and does not limit the
lead agency from selecting any other actions
deemed necessary in response to any
situation.
(b) In response to contaminated soil,
sediment, or waste, the following types of
response actions shall generally be
considered: removal, treatment, or
containment of the soil, sediment, or waste to
reduce or eliminate the potential for
hazardous substances or pollutants or
contaminants to contaminate other media
(ground water, surface water, or air) and to
reduce or eliminate the potential for such
substances to be inhaled, absorbed, or
ingested.
(1) Techniques for removing contaminated
soil, sediment, or waste include the following:
(i) Excavation.
(ii) Hydraulic dredging.
(iii) Mechanical dredging.
(2) Techniques for treating contaminated
soil, sediment, or waste include the following:
(i) Biological methods, including the
following:
(A) Treatment via modified conventional
wastewater treatment techniques.
(B) Anaerobic, aerated, and facultative
lagoons.
(C) Supported growth biological reactors.
(D) Microbial biodegradation.
(ii) Chemical methods, including the
following:
(A) Chlorination.
(B) Precipitation, flocculation,
sedimentation.
(C) Neutralization.
(D) Equalization.
(E) Chemical oxidation.
(iii) Physical methods, including the
following:
(A) Air stripping.
(B) Carbon absorption.
(C) Ion exchange.
(D) Reverse osmosis.
(E) Permeable bed treatment.
(F) Wet air oxidation.
(G) Solidification.
(H) Encapsulation.
(I) Soil washing or flushing.
(I) Incineration.
(c) In response to contaminated ground
water, the following types of response
actions will generally be considered:
Elimination or containment of the
contamination to prevent further
contamination, treatment and/or removal of
such ground water to reduce or eliminate the
contamination, physical containment of such
ground water to reduce or eliminate potential
exposure to such contamination, and/or
restrictions on use of the ground water to
eliminate potential exposure to the
contamination.
(1) Techniques that can be used to contain
or restore contaminated ground water include
the following: ,
(i) Impermeable barriers, including the
following:
(A) Slurry walls.
(B) Grout curtains.
(C) Sheet pilings.
(ii) Permeable treatment beds.
(iii) Ground-water pumping, including the
following:
(A) Water table adjustment.
(B) Plume containment.
(iv) Leachate control, including the
following:
(A) Subsurface drains.
(B) Drainage ditches.
(C) Liners.
(2) Techniques suitable for the control of
contamination of water and sewer lines
include the following:
(i) Grouting.
(ii) Pipe relining and sleeving.
(iii) Sewer relocation.
(d)(l) In response to contaminated surface
water, the following types of response
actions shall generally be considered:
Elimination or.containment of the
contamination to prevent further pollution,
and/or treatment of the contaminated water
to reduce or eliminate its hazard potential.
(2) Techniques that can be used to control
or remediate surface water include the
following:
(i) Surface seals.
(ii) Surface water diversions and collection
systems, including the following:
(A) Dikes and berms.
(B) Ditches, diversions, waterways.
(C) Chutes and downpipes.
(D) Levees.
(E) Seepage basins and ditches.
(F) Sedimentation basins and ditches.
(G) Terraces and benches.
(iii) Grading.
(iv) Revegetation.
(e) In response to air emissions, the
following techniques will be considered:
(1) Pipe vents.
(2) Trench vents.
(3) Gas barriers.
(4) Gas collection.
(5) Overpacking.
(6) Treatment for gaseous emissions,
including the following:
(i) Vapor phase adsorption.
(ii) Thermal oxidation.
(f) Alternative water supplies can be
provided in several ways, including the
following:
(i) Individual treatment units.
(ii) Water distribution system.
(iii) New wells in a new location or deeper
wells.
(iv) Cisterns.
(v) Bottled or treated water.
(vi) Upgraded treatment for existing
distribution systems.
(g) Temporary or permanent relocation of
residents, businesses, and community
facilities may be provided where it is
determined necessary to protect human
health and the environment.
[FR Doc. 90-2928 Filed 3-7-90; 8:45am]
MLUNOCOOE *SSO-SO-«
-------
f
PartV:
Index of Key Terms
L
-------
Abbreviations
Administrative Record
Abbreviations 8671, 8814-8815
Acceptable exposure levels (see "Exposure --
Levels")
Acceptable risk range (see "Risk range - Acceptable
risk range")
Access (see also "Entry and access") 8667, 8676,
8681, 8683-8684, 8687-8688, 8692, 8703, 8730,
8818, 8830-8831, 8837, 8840, 8843, 8858
Access restrictions (see "Access" and "Entry and
access")
ACL(s) (see "Ground water ~ Cleanup levels --
Alternate concentration limits")
Acquisition of real property by state (see "State ~
Assurances -- Acquisition of real property")
Action-specific ARARs (see "Applicable or relevant
and appropriate requirements -- Types of ARARs")
Actions under CERCLA section 107(a) 8668, 8786,
8788, 8792-8795
Activation/activate 8668, 8672-8674, 8814, 8820,
8826-8827, 8830, 8839
Definition of 8814
Activities by other persons (see also "Private party
cleanups," "Person(s)," and "Consistent with the
NCP") 8858, 53 FR 51461
Addition of products to NCP Product Schedule (see
"NCP Product Schedule")
Additive risk or additivity (see also "Risk range" and
"Multiple contaminants or pathways") 8701, 8712-
8713, 8716, 8718, 8726, 8729, 8751, 8753, 8808-
8809, 8814-8818, 8827, 8848, 8861-8865
Administrative orders 8669, 8687, 8774, 8799,
8803, 8828, 8840, 8847, 8858, 8860
Entry and access (see "Entry and access ~
Administrative orders for access")
Administrative record (see also "Information
repository" and "Public participation requirements —
Information repository") 8668-8669, 8682, 8688,
8694, 8730, 8798-8808, 8851-8852, 8854, 8856,
8858, 8861, 53 FR 51459, 53 FR 51463
Adding to administrative record after ROD
is signed 8772, 8800, 8807-8808, 8851-
8852, 8859-8861
Applicability of Subpart I requirements
8802-8803, 8859, 53 FR 51465
- Availability of 8690, 8730, 8767-8768,
8800-8801, 8805-8806, 8814, 8844, 8851-
8852, 8859-8861
- Close of 8770, 8861
- Contents of 8682, 8694, 8730, 8732, 8762,
8766-8770, 8773, 8800-8803, 8805-8807,
8851, 8852, 8859-8861
Confidential documents 8803-8804,
8860, 53 FR 51466, 53 FR 51468
Documents not included 8732, 8800,
8804, 8860
Draft documents 8767-8768, 8800-
8801, 53 FR 51467
Privileged documents 8804, 8860, 53
FR51467
- Establishment of 8668, 8704, 8707, 8769,
8799-8800, 8806, 8844, 8854, 8856, 8859,
53 FR 51464-51465
- Federal facilities 8802,8859,8864
Interim record requirements 8704-8705,
8732
Judicial review of administrative record
(see also "Judicial review") 8668, 8803,
8807, 53 FR 51463
Late comments 8807-8808
V-l
-------
Administrative record
Applicable or relevant and
appropriate requirements
- Location of 8803-8804, 8806, 8859-8860,
53 FR 51465
- Microform 8803-8804, 8860, 53 FR 51465
Public participation requirements 8668,
8724, 8757, 8773, 8795, 8798-8803, 8805-
8807, 8844, 8851, 8852, 8858-8861, 53 FR
51463
Records coordinator 8805-8806
- Remedial action 8669,8694,8731-8732,
8800, 8804-8806, 8813, 8851-8852, 8859-
8861, 53 FR 51466, 53 FR 51468
- Removal action 8694,8801,8803,8805-
8807, 8844, 8859-8860, 53 FR 51469
Emergency 8694, 8801, 8803, 8806-
8807, 8839-8840, 8844, 53 FR 51466
Non-time-critical 8669, 8805-8807,
8860-8861
Time-critical 8694, 8806-8807, 8860-
8861
Requirements after decision document is
signed 8707, 8731-8732, 8807-8808, 8851-
8852,8856, 8860-8861, 53 FR 51516
- Start of 8707-8708, 8854, 8856, 8859
State-lead site 8669,8730,8802,8854,
8856, 8859, 53 FR 51464-51465
Administrative requirements (see also "Applicable or
relevant and appropriate requirements — Substantive
versus administrative requirements") 8670, 8689,
8756-8757, 8775, 8856
Agency for Toxic Substances and Disease Registry
(ATSDR) 8667-8668, 8678, 8681, 8709, 8765,
8814,8832, 8834, 8840, 8842, 8845, 8860, 53 FR
51402
ATSDR health assessments 8667,8681,
8709, 8723, 8726, 8800, 8832, 8834, 8840,
8860
Alternatives, remedial (see "Feasibility study ~
Alternatives (remedial)"')
Alternate concentration limits (ACLs) (see "Ground
water — Cleanup levels - Alternate concentration
limits")
Alternate selection of remedy approaches 53 FR
51430-51432
Alternative treatment technologies (see "Remedies
(types of) ~ Treatment (or treatment technology) --
Alternative")
Alternative (or alternate) water supplies 8695, 8733,
8812, 8814-8815, 8818, 8843, 8865
Annual consultations (see "State ~ Annual
consultations with EPA")
AOC (see "RCRA ARARs - Area of
contamination")
Applicable or relevant and appropriate requirements
(ARARs) 8667, 8669-8670, 8679, 8687, 8694-8696,
8700-8701, 8703-8704, 8706-8709, 8711-8713, 8715-
8720, 8723-8733, 8741-8758, 8760, 8763-8765,
8772, 8775-8777, 8781-8786, 8793, 8795-8797,
8801, 8811-8812, 8814, 8841, 8843, 8847-8858,
8860, 53 FR 51438
Applicable requirements 8667-8671, 8675,
8679-8681, 8683, 8687, 8694, 8696, 8707,
8709, 8711, 8714-8715, 8720, 8725-8727,
8731, 8733, 8742, 8756, 8793, 8796-8798,
8814, 8841, 8858, 53 FR 51435
Definition of 8814, 53 FR 51398
Categories of 8711, 8741
Compliance with (see "CERCLA section
121 requirements for selection of remedy —
Compliance with applicable or relevant and
appropriate requirements")
- Definitions of 8814, 8817, 53 FR 51435
Difference between "applicable" and
"relevant and appropriate" 53 FR 51436
V-2
-------
Applicable or relevant and
appropriate requirements (cont.)
Applicable or relevant and
appropriate requirements (cont.)
Disputes over ARARs (see "Disputes --
ARARs")
Examples of potential ARARs and TBCs
(see also "To-be-considereds") 8680, 8765-
8766, 8811
Federal water quality criteria (FWQC) (see
also "Water quality criteria") 8695, 8715,
8741, 8754-8755, 8764, 8848, 53 FR 51442
"Freezing" ARARs at signing of ROD (see
entry below under this heading, "Newly
promulgated or modified requirements")
History of 53 FR 51435
Identification of 8687, 8695, 8707, 8709,
8711-8712, 8726, 8744-8747, 8763, 8777,
8796-8797, 8841, 8847-8849, 8858, 53 FR
51438
Methods to identify ARARs 53 FR
51438
Indian tribe (or tribal) laws as ARARs
8741-8742, 8745, 8747
Investigation-derived waste (see "Wastes -
Investigation-derived waste")
Maximum contaminant levels (MCLs) and
Maximum contaminant level goals (MCLGs)
8669-8670, 8712-8713, 8715-8718, 8727,
8732, 8737, 8741, 8743, 8745, 8747-8748,
8750-8756, 8764, 8812, 8845, 8848, 53 FR
51441
Newly promulgated or modified
requirements 8747, 8757-8758, 8772, 8850
Points of compliance (see "Points of
compliance")
RCRA ARARs (see "RCRA ARARs")
Relevant and appropriate requirements
8669, 8671, 8674, 8679, 8687, 8695, 8711,
8720, 8727, 8731-8733, 8741-8744, 8751-
8753, 8755, 8763-8764, 8793, 8796-8797,
8811, 8817, 8850-8853, 8856, 8860, 53 FR
51436
Definition of 8817, 53 FR 51398
Remedial actions, compliance with ARARs
during 8701, 8712, 8720, 8726, 8741,
8745, 8748-8749, 8754, 8756, 8852, 53 FR
51441
Removal actions (see "Removal action(s) --
Applicable or relevant and appropriate
requirements")
State ARARs 8667, 8691, 8695, 8706,
8713-8714, 8720, 8724, 8726, 8732, 8741,
8745-8746, 8749, 8755-8756, 8764-8765,
8781, 8783-8784, 8786, 8811, 8841, 8847,
8855, 8857, 53 FR 51437-51438, 53 FR
51457
Challenge to ARARs determination (see
"Disputes - ARARs")
Definition of 8847
Identified in timely manner 8741-
8742, 8744, 8746-8747, 8841, 8847-
8850, 8854-8855, 53 FR 51437
Inconsistent application of state
requirements waiver (see entry below
under this heading, "Waivers --
Inconsistent application of state
requirements")
Nondegradation laws 8746
Promulgated (i.e., legally enforceable
and of general applicability) 8746,
8841
Substantive versus administrative
requirements 8669-8670, 8691, 8741, 8755-
8757, 8801, 8814, 8817, 8840, 8850, 8855,
8858, 53 FR 51443
To-be-considereds (TBCs) (see "To-be-
considereds")
V-3
-------
Applicable or relevant and
appropriate requirements (cont.)
Biological additive
- Types of ARARs 8727, 8741, 53 FR 51437
- Waivers 8695,8719-8720,8726,8731,
8741-8742, 8744, 8747-8748, 8750-8753,
8758, 8760, 8782, 8784-8785, 8793, 8795-
8797, 8799, 8841, 8843, 8849-8852, 8855-
8856, 8858-8860, 53 FR 51438
Equivalent standard of performance
8670, 8747-8748, 8798, 8850, 53 FR
51439
Fund-balancing 8750, 8794, 8850, 53
FR 51440
Greater risk to human health and the
environment 8670, 8703, 8724-8725,
8748, 8850, 53 FR 51439
Inconsistent application of state
requirements 8670, 8706, 8709-8710,
8747, 8749, 8780, 8784-8785, 8850, 53
£R 51438, 53 FR 51440
Interim measures (see also
"Remedies - Interim" and "Operation
and maintenance ~ Temporary or
interim measures") 8703-8706, 8725,
8738, 8747-8748, 8850, 53 FR 51438
Removal actions 8695, 8747, 8843,
8849-8850, 8852, 8855
Technical impracticability 8670, 8703,
8748, 8752, 8850, 53 FR 51439
When and where to attain ARARs 8695,
8720, 8726, 8748, 8753, 8796, 53 FR 51440
Amendment to ROD (see "Record of decision -
Amendment to'")
ARARs (see "Applicable or relevant and appropriate
requirements")
Area of contamination (AOC) (see "RCRA ARARs -
- Area of contamination")
Assessment Plan 8789
Assistance agreements) 8775, 8817, 8859, 53 FR
51463
Assurances (see "State - Assurances")
Attenuation, natural (see "Ground water ~
Restoration - Natural attenuation")
ATSDR (see "Agency for Toxic Substances and
Disease Registry")
ATSDR health assessments (see "Agency for Toxic
Substances Disease Registry - ATSDR health
assessments")
Authority for and applicability of the NCP 8666,
8813
Authorization of use (of dispersants and other
chemicals) 8808-8810, 8861, 53 FR 51471
Authorized official 8789
Balancing criteria (see "Feasibility study ~ Nine
criteria (functional categories) -- Primary balancing
criteria")
Baseline risk assessment (see "Remedial
investigation — Risk assessment — Baseline risk
assessment")
BOAT (see "RCRA ARARs » Land disposal
restrictions - Best demonstrated available
technology requirements")
Best demonstrated available technology (BDAT) (see
"RCRA ARARs ~ Land disposal restrictions - Best
demonstrated available technology requirements")
Best professional judgement (BPJ) 53 FR 51437
Bias for action (see "Remedial
investigation/feasibility study — Program
management principles — Bias for action")
Biological additive(s) 8808-8809, 8814, 8816, 8827,
8861-8864
Definition of 8814
V-4
-------
Bioremediation
Citizens suits
Bioremediation (see "Remedies — Treatment -
Bioremediation")
BPJ (see "Best professional judgement")
Burning agent(s) 8669, 8808-8809, 8815-8816,
8827, 8863-8864
- Definition of 8671, 8815
CA (see "State - Cooperative agreement")
Cancer potency factors (CPFs) 8712-8713, 8715,
8745
Carcinogen(s) (see also "Noncarcinogens") 8711-
8718, 8729, 8748, 8750-8752, 8755, 8765, 8848
CERCLA
Definition of 8815
CERCLA section 106(b) (see also
"Documentation and cost recovery ~
Hazardous substance response - Recovery
under CERCLA section 106(b)") 8858-
8859, 53 FR 51461-51462
CERCLA section 107(a) (see also "Actions
under CERCLA section 107(a)") 8792-
8798, 8858-8859, 53 FR 51460
CERCLA section 111 (a) (see also
"Claims(s)") 8858-8859, 53 FJR 51461
CERCLA section 123 (see also
"Reimbursement - Local governments")
8858-8859, 53 FR 51461-51462
Information system (see "CERCLIS")
CERCLA section 121 requirements for selection of
remedy 8700-8702, 8719-8721, 8724-8732, 8752,
8850-8852
Compliance with applicable or relevant and
appropriate requirements (see also
"Applicable or relevant and appropriate
requirements") 8680, 8687, 8699-8701,
8719-8720, 8724-8732, 8783-8784, 8791,
8795, 8850, 8852, 53 FR 51438
Cost-effectiveness 8668,8700,8716,8719,
8722, 8724-8732, 8738, 8752-8753, 8758-
8759, 8772, 8778, 8793-8795, 8801, 8850,
8852
Permanent solutions and treatment to the
maximum extent practicable 8668, 8700,
8706, 8716, 8719-8720, 8724-8732, 8752,
8778, 8793, 8795, 8850-8852
Protection of human health and the
environment (see also "Protection of human
health and the environment") 8700-8702,
8709, 8712-8713, 8716, 8719-8720, 8724-
8732, 8737-8738, 8741, 8745, 8752, 8778,
8793, 8850-8852
Reduction of toxicity, mobility, or volume as
a principal element 8668, 8701, 8720-8721,
8724-8732, 8851-8852
CERCLA information system (see "CERCLIS")
CERCLA-quality cleanup (see "Consistent with the
NCP - CERCLA-quality cleanup")
CERCLIS (CERCLA information system) 8668-
8669, 8671, 8692-8693, 8805, 8811, 8814-8815,
8844
- Definition of 8815, 53 FR 51399
- Listing sites in CERCLIS 8669, 8693
No Further Response Action Planned
(NFRAP) 8692-8693, 8815, 8846
Chemical agent(s) 8809-8810, 8815, 8819, 8827,
8861, 8863
Definition of 8815
Chemical-specific ARARs (see "Applicable or
relevant and appropriate requirements - Types of
ARARs")
Citizen petition(s) (see "Preliminary assessment ~
Citizen petitions")
Citizen suits 8668, 8684
V-5
-------
Claim(s)
Consistency exemption
Claim(s) (see also "CERCLA - CERCLA section
lll(a)") 8783, 8791, 8796, 8798-8799, 8815
- Against the Fund 8789,8799,8858
Definition of 8815
Preauthorization or prior approval 8797,
8809, 8858-8859, 53 FR 51462
Natural resource damages (see also
"Natural resource(s) - Claims (limits on
Fund use)") 8707-8708, 8789, 8791, 8858-
8859
Clean closure (see "RCRA ARARs ~ Closure -
Clean closure")
Cleanup goals, levels, and standards (see also
"Applicable or Relevant and Appropriate
Requirements ~ Maximum contaminant levels and
Maximum contaminant level goals," "Remedial
investigation/feasibility studies — Remediation
goals" and "Ground water - Cleanup levels") 8667,
8669-8670, 8677, 8679-8681, 8684, 8687-8692,
8695-8707, 8709, 8714-8717, 8724, 8726-8727,
8729, 8732-8735, 8737, 8740-8742, 8744-8746,
8749-8754, 8756-8760, 8765, 8767-8771, 8773-8776,
8778-8780, 8782-8786, 8791-8796, 8798-8799, 8804,
8809-8812, 8814, 8816-8818, 8828, 8830, 8834-
8835, 8838, 8846, 8848-8849, 8852-8853, 8858
Close Out Reports) 8698-8700
Closure (see "RCRA ARARs ~ Closure")
Coastal water(s) 8818
Definition of 8815
Coastal zone(s) 8672, 8674, 8816, 8828, 8830,
8833, 8836
Definition of 8815
Coast Guard (see "United States Coast Guard")
Comment period (see "Public participation
requirements ~ Public comment period')
Community acceptance (see "Feasibility study —
Nine criteria — Community acceptance")
Community interviews (see "Public participation
requirements — Community interview(s)")
Community relations (see "Public participation
requirements — Community relations")
Community relations coordinator (CRC) (see "Public
participation requirements -- Community Relations
Coordinator")
Community relations plan (CRP) (see "Public
participation requirements *- Community relations
plan")
Comparative analysis (see "Feasibility study ~
Alternatives (remedial) -- Detailed analysis of --
Comparative analysis")
Compliance with ARARs (see "CERCLA section
121 requirements for selection of remedy -
Compliance with applicable or relevant and
appropriate requirements")
Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as
amended by the Superfund Amendments and
Reauthorization Act of 1986 (see "CERCLA")
Computation of time 8819
Conceptual site model (see "Remedial
investigation/feasibility study - Conceptual site
model")
Concurrence (see also "State - Concurrence") 8669,
8699, 8703, 8739, 8773, 8776-8777, 8779, 8781-
8783, 8785-8789, 8801, 8808-8810, 8819, 8845,
8855-8857, 8861-8862, 53 FR 51457-51458
Conflict of interest (see "Remedial design/remedial
action ~ Conflict of interest")
Consent decree (see "Potentially responsible
party(ies) - Settlements - Consent decree(s)n)
Consistency exemption (see "Removal action(s) ~
Exemptions from statutory limits — Consistency
exemption")
V-6
-------
Consistent with the NCP
Cost
Consistent with the NCP (see also "Private party
cleanups" and "Nongovernmental participation")
8798
CERCLA-quality cleanup 8793-8797, 8858
Not inconsistent with the NCP 8699,8794,
8797, 8799, 8858, 53 FR 51462
Role of courts in determining 8792, 8794
Substantial compliance 8792-8795,8797,
8858
Construction Completion category of the NPL (see
"National Priorities List ~ Construction completion
category")
Consult/consultation 8666, 8669, 8677, 8691, 8697,
8724, 8745, 8756-8757, 8773, 8777, 8779-8780,
8785, 8790-8791, 8797, 8809-8810, 8854-8858
Annual (see "State — Annual consultations
with EPA")
- Interagency 8666,8669,8790,8793,8809
- Lead/support agency 8677,8707-8708,
8724, 8730, 8776, 8780, 8783-8784, 8796,
8809-8810
Potentially responsible party/EPA (see also
"Potentially responsible party(ies)" and
"Enforcement") 8707, 8858
Containment (see "Remedies (types of) -
Containment")
Containment, countermeasures, cleanup, and disposal
(see "Discharge of oil — Containment,
countermeasures, cleanup, and disposal")
Contaminant (see "Pollutant or contaminant
(definition of)")
Contaminants, multiple (see "Multiple contaminants
or pathways")
Contaminated soil and debris (see "RCRA ARARs -
Land disposal restrictions -- Presumption that BOAT
is not appropriate for contaminated soil and debris")
Contaminants of concern 8701, 8709, 8713, 8721
Contiguous zone 8689, 8787, 8814-8815, 8829,
8857, 8861
Definition of 8815
Contingency plan(s) (see also "Preparedness
planning") 8669, 8671, 8673-8674, 8677, 8679,
8683-8685, 8687, 8698, 8754, 8771, 8813-8815,
8818, 8826-8828, 8830-8832, 8834-8839, 8847,
8857, 8862, 8864
- Federal 8669,8674,8684-8685,8687,
8836
- Local (LCP) 8674,8678,8683-8687,8826,
8836-8837
National (NCP) (see "National Contingency
Plan(s)," "1985 NCP," "Purpose and
objectives of the NCP," "Scope of the
NCP," and "NCP product schedule")
- OSC 8673,8684-8685,8687,8814,8826-
8828, 8830, 8832, 8835-8838, 8862, 53 FR
51403
- Regional 8677-8678,8682,8684-8687,
8788, 8814-8816, 8818, 8826-8827, 8830-
8832, 8835-8838, 8862
- State 8683-8685,8698
Contracting (see also "Remedial design/remedial
action ~ Recontracting" and "Remedial
design/remedial action - Conflict of interest") 8704-
8705, 8735-8736, 8779, 8784-8785
Contribute to the efficient performance (see
"Removal action(s) - Contribute to the efficient
performance of the remedial action")
Cooperative agreements) (see "State - Cooperative
agreement")
Core Grant Program 8698
Cost (see also "CERCLA section 121 requirements
for selection of remedy ~ Cost-effectiveness,"
"Feasibility study - Nine criteria (to evaluate
V-7
-------
Cost (cont)
Delegation
alternatives) - Cost," and "Documentation and cost
recovery") 8668-8669, 8677, 8681-8682, 8687-8688,
8691, 8694-8697, 8700-8702, 8704-8707, 8712,
8714-8716, 8718-8719, 8721-8733, 8736-8738, 8740,
8743, 8745, 8747-8748, 8750-8751, 8772-8774,
8777-8780, 8782-8786, 8788, 8790, 8792-8799,
8801, 8803, 8805-8806, 8811-8812, 8818, 8828-
8829, 8831-8832, 8835, 8838-8839, 8841, 8843-
8847, 8849-8854, 8856-8860
Capital costs 8727,8772,8812,8850
Cost-effectiveness, role in determination of
8726-8729
Cost-share (see "State - Assurances --
Cost-share")
Discount rate 8722
Net present value 8722, 8850
O&M cost (see also "Operation and
maintenance") 8722, 8740, 8850
Practicability, role in determination of
8695-8696, 8706, 8729-8730, 8748, 8751,
8818
Cost-effective(ness) (see "CERCLA section 121
requirements for selection of remedy" and
"Feasibility study ~ Nine criteria (functional
categories) — Cost")
Cost recovery (see "Documentation and cost
recovery ~ Recovery under CERCLA section 106(b)"
and "Consistent with the NCP")
Cost share (see "State - Assurances - Cost share")
Countermeasures (see "Discharge of oil -
Containment, countermeasures, cleanup, and
disposar)
Covenant not to sue (see "Potentially responsible
party(ies) — Settlements - Covenant not to sue")
CPF(s) (see "Cancer potency factors")
CRC (see "Public participation requirements ~
Community Relations Coordinator")
CRP (see "Public participation requirements -
Community Relations Plan")
Credit (see "State ~ Credit (against cost share)")
Cumulative Risk (see "Additive risk or additivity")
Data quality objectives (DQOs) (see "Remedial
investigation/feasibility study - Data quality
objectives")
Data requirements 8808-8810
Decision document (see also "Record of decision"
and "Documenting the decision") 8670, 8705, 8731-
8732, 8757, 8766, 8769, 8773, 8802-8803, 8806-
8808
Deferral policies 8667, 8796-8797, 53 FR 51415
Applicability to final sites 53 FR 51421
Current policies 53 FR 51416
Definition of S3 FR 51415
Enforcement orders 53 FR 51419
Other federal authorities 53 FR 51417
Oversight 53 FJR 51417
- Purpose of the NPL 53 FJR 51415
Response to comments 8667
State authorities 53 FR 51418
Definitions 8671, 8814-8819
Deletion of definitions 53 FR 51400
(Note: Terms defined in the NCP are included
as separate entries in this "Index of Key Terms.")
Delegation
Of duties of President to federal agencies
8667-8668, 8674, 8676-8677, 8686, 8688,
8726-8727, 8814, 8819
V-8
-------
Delegation (cont)
Dispersants
Of remedy selection authority to states
8855
De minimis parties or settlement (see "Potentially
responsible party(ies) ~ Settlements - De minimis
parties")
DC minimis risk 8716-8718
Dense non-aqueous phase liquids (DNAPLs) 8735
Department of Agriculture (USDA) 8814, 8833,
8857
Department of Commerce (DOC) (see also "National
Oceanic and Atmospheric Association") 8683, 8786-
8788, 8790, 8814, 8834, 8839, 8857, 53 FR 51460
Department of Defense (DOD) 8674-8677, 8683,
8685, 8688, 8765, 8786, 8814, 8816, 8829, 8833,
8839
Department of Energy (DOE) 8675-8676, 8683,
8685-8786, 8814, 8816, 8829, 8831, 8833
Department of Health and Human Services (HHS)
8677, 8814, 8834
Department of the Interior (DOI) 8765, 8786-8791,
8814, 8834, 8839, 53 FR 51460
Department of Justice (DOJ) 8682, 8771, 8814,
8834
Department of Labor (DOL) 8679, 8814, 8834
Department of State (DOS) 8814, 8835
Department of Transportation (DOT) 8672, 8674-
8675, 8685, 8765, 8814, 8833-8834
Detailed analysis of alternatives (see "Feasibility
study - Alternatives (remedial) -- Detailed analysis
on
Determination of whether a waste is a hazardous
waste (see "Testing - RCRA waste")
Determinations to initiate response and special
conditions 8669, 8676, 8708-8709, 8774, 8791,
8794-8795, 8829, 53 FR, 51401
Development of alternatives (see "Feasibility study —
Alternatives (remedial) - Development of)
Discharge of oil (see also "Threat of discharge or
release" and "Release") 8670, 8672-8678, 8680-
8687, 8695, 8740, 8753, 8755-8757, 8759, 8764,
8766, 8774, 8786, 8788, 8790, 8792, 8798, 8808-
8810, 8815, 8819, 8826, 8829, 8832, 8837-8839,
8857
Containment, countermeasures, cleanup,
and disposal 8687, 8810, 8838, 8869
Definition of 8815
Discovery or notification (see "Discovery or
notification")
Documentation and cost recovery (see
"Documentation and cost recovery")
General pattern of response 8687, 8838
- Oil pollution funds 8674,8816-8818,8839
Preliminary assessment and initiation of
action 8686-8687,8831,8837
Size classes of discharge (definition of)
8818
Threat of discharge or release of oil (see
"Threat of discharge or release")
Discount rate (see "Cost ~ Discount rate")
Discovery of release 53 FR 51408
Discovery or notification (see also "Potentially
responsible party(ies) ~ Notice letters") 8669, 8686-
8687, 8692, 8707-8708, 8785, 8787, 8797, 8837,
8841-8842, 53 FR 51404, 53 FR 51408
Hazardous substance releases 8698, 8707-
8708, 8795, 8841
Oil spills 8681,8686,8809,8837
Dispersants 8666, 8669, 8790, 8808-8810, 8814-
8815, 8827, 8830, 8861-8862, 8864-8865, 53 FR
51471
V-9
-------
Dispersants (cont.)
EHS
Definition of 8815
Disposal (see also "RCRA ARARs -- Land disposal
restrictions") 8668-8669, 8687-8691, 8695, 8708,
8714, 8721, 8725, 8731, 8741, 8755, 8758-8765,
8813, 8816, 8818-8819, 8830,8832,8836, 8838,
8843, 8849-8851, 8854-8857, 8860, 53 FR 51444
Disputes 8670, 8731, 53 FR 51458
- ARARs 8731,8745-8746,8773,8784,53
FR 51437, 53 FR 51457
- EPA versus state 8746,8786
- Resolution of 8724, 8731, 8772, 8781-
8782, 8784, 8786, 8789, 8794
DNAPLs (see "Dense non-aqueous phase liquids")
DOC (see "Department of Commerce")
Docket (see "Federal agencies ~ Hazardous waste
compliance docket")
Documentation and cost recovery (see also
"Consistent with the NCP" and "Private party
cleanups") 8680- 8682, 8687, 8723, 8736, 8797,
8831-8832,8838, 8858-8859, 53 FR 51402
Hazardous substance response 8723, 8831-
8832
Documentation 8831-8832
Health effects 53 FR 51402
Local governments 8858
Private party cleanups 8792-8799,
8858-8859
Recoverable costs 8723, 8792-8795,
8798-8799, 8803, 8835, 8838-8839,
8841
Recovery under CERCLA section
106(b) (see also "Removal action(s) ~
Actions under CERCLA section 106")
8670, 8680-8682, 8687, 8726, 8799,
8858
Oil spills 8809,8838
Documenting the decision (see also "Record of
decision" and "Decision Document") 8670, 8704-
8705, 8731, 53 FR 51430
DOD (see "Department of Defense")
DOE (see "Department of Energy")
DOI (see "Department of the Interior")
DOT (see "Department of Justice")
DOL (see "Department of Labor")
DOS (see "Department of State")
DOT (see "Department of Transportation")
Dollar and time limitations (see "Removal action(s) -
- Statutory limits - Time and dollar limits")
DQOs (see "Remedial investigation/feasibility
study - Data quality objectives")
Drinking water supplies 8717, 8732-8733, 8736,
8750, 8754-8755, 8789, 8815-8816, 8840, 8842
Definition of 8815
Dual enforcement standards (see "Enforcement ~
Dual enforcement standards")
Duties of President delegated to federal agencies (see
"Delegation - Of duties of President to federal
agencies")
Early notification (see "Potentially responsible
party(ies) ~ Early notification ofPRPs")
EE/CA (see "Removal action(s) - Engineering
evaluation/cost analysis")
Effectiveness (see "Feasibility study ~ Nine criteria
(to evaluate alternatives) - Long-term effectiveness
and permanence" and "Feasibility study ~ Nine
criteria (to evaluate alternatives) - Short-term
effectiveness")
EHS (see "Extremely hazardous substance")
V-10
-------
Emergency removal
Evacuation
Emergency removal (see "Removal action(s) --
Emergency removaf)
Emergency exemption (see "Removal action(s) --
Exemptions from statutory limits — Emergency
exemption")
Endangerment assessment (see "Imminent and
substantial endangerment")
Enforcement (see also "Potentially responsible
party(ies)") 8667-8668, 8670, 8675, 8679, 8684,
8692-8693, 8698, 8735-8736, 8744, 8762, 8765-
8766, 8768, 8773-8777, 8779, 8782-8783, 8785-
8786, 8794, 8797, 8817-8819, 8831, 8833, 8839,
8841, 8843-8845, 8847, 8852-8856, 8860, 53 FR
51458-51459
Administrative order (see "Administrative
orders")
Dual enforcement standards 8670, 8785-
8786
Enforcement agreement or orders 8670,
8720, 8736, 8774-8775, 8797,8847, 8854,
8860
EPA strategy on enforcement 8774
Public participation (see "Public
participation requirements ~ Enforcement
actions")
Special notice and moratoria (see
"Potentially responsible party(ies) - Special
notice and moratoria")
Engineering Evaluation/Cost Analysis (EE/CA) (see
"Removal action(s) - Engineering Evaluation/Cost
Analysis")
Enhancement of remedy (see "State - Enhancement
of remedy")
Entry and access (see also "Access") 8669, 8687-
8688, 8800, 8804, 8806, 8814, 8840, 8858, 53 FR
51406
Administrative orders for access 8687,
8858
Designating PRPs as access representatives
(see "Potentially responsible party(ies) -
Designating PRPs as access
representatives")
Environment (definition of) (see also
"Environmental") 8815
Environmental (see also "Environment ~ Definition
of)
Assessment 8682, 8830
Fate and transport modeling (see "Fate and
transport modeling")
Protection (see Feasibility study ~ Nine
criteria (to evaluate alternatives) ~
Protection of human health and the
environment" and "CERCLA section 121
requirements for selection of remedy -
Protection of human health and the
environment")
- Risk 8709-8710,8830,8847
Environmental Response Team (ERT) 8678, 8814,
8830
Environment-based 53 FR 51436
EPA Radiological Assistance Teams (RATs) 8671,
8678-8679, 8814, 8831
EP Toxicity Test (see "Extraction Procedure Toxicity
Test")
Equivalent standard of performance waiver (see
"Applicable or relevant and appropriate requirements
- Waivers - Equivalent standard of performance")
ERT (see "Environmental Response Team")
ESD (see "Record of Decision - Explanation of
Significant Differences")
Establishing remedial priorities (see "National
Priorities List ~ Establishing remedial priorities")
Evacuation 8818, 8829-8830, 8837, 8843
V-ll
-------
Evaluation criteria
Feasibility study
Evaluation criteria (see "Feasibility study - Nine
criteria (to evaluate alternatives)")
Executive Orders 8666, 8671, 8674, 8676, 8679,
8680, 8731, 8814, 8819, 8832, 8837, 53 FR 51396,
53 FR 51398, 53 FR 51400
Exemptions 8667, 8669-8670, 8688-8692, 8696,
8741, 8744, 8747, 8756, 8763, 8766, 8773-8774,
8795, 8803-8804, 8841, 8844
From statutory limitations on removal
actions (see "Removal action(s) —
Exemptions from statutory limits")
For federal facilities (see "Federal
facility(ies) ~ Exemptions for federal
facilities")
Exigencies of the situation (see "Removal action(s) -
- Applicable or relevant and appropriate
requirements •- Urgencies of the situation")
Expectations (see "Remedial investigation/feasibility
study - Program expectations")
Explanation of significant differences (BSD) (see
"Record of Decision ~ Explanation of Significant
Differences")
Exposure 8680, 8701-8703, 8705-8706, 8708-8713,
8715-8718, 8720, 8722-8723, 8725-8726, 8729-8730,
8732-8734, 8747-8748, 8750-8755, 8758, 8764,
8792, 8817, 8834, 8840, 8842-8844, 8846-8849,
8851-8852, 8865
- Assessment 8708-8710,8753,8860
- Levels 8708-8710,8712,8715,8718,8753,
8848-8849, 8851
- Pathways 8707,8709-8710,8712-8713,
8715, 8717, 8719, 8726, 8751, 8817, 8829,
8844, 8848-8849
Scenario (see also "Remedial investigation -
- Risk assessment — Reasonable maximum
exposure scenario") 8710, 8713, 8716-8717
Extraction Procedure (EP) Toxicity Test 53 FR
51444
Extremely hazardous substance (EHS) (see also
"Title III" and "Superfund Amendments and
Reauthorization Act of 1986") 8667, 8672, 8686,
8836-8837
Facility 8667-8668, 8674-8676, 8678, 8686, 8688,
8690-8693, 8698, 8706, 8709, 8714, 8731-8732,
8736, 8738, 8740-8744, 8753-8754, 8759, 8764-
8766, 8768, 8772, 8774-8775, 8785, 8795, 8802-
8803, 8805, 8814-8817, 8828-8829, 8833, 8836-
8837, 8839-8844, 8847-8855, 8859
- Definition of 8689, 8690, 8815, 53 FR
51403
Off-shore 8829,8839
Definition of 8816
On-shore 8829,8839
Definition of 8817
Facility-siting laws (see "Siting laws")
Fact sheet (see "Public participation requirements -
Remedial design/remedial action - Fact sheet")
Fate and transport modeling 8709
FCO (see "Federal Coordinating Officer")
Feasibility study (FS) (see also "Remedial
investigation" and "Remedial investigation/feasibility
study") 8668, 8670, 8684, 8687, 8700, 8702-8709,
8711-8716, 8718-8719, 8721-8724, 8728-8730, 8775,
8793, 8801, 8812, 8814-8815, 8817, 8828, 8846-
8848, 8850-8851, 8854-8856, 8860
- Alternatives (remedial) 8675,8686,8694,
8711-8717-8720, 8722, 8724-8728, 8730-
8731, 8747, 8775-8776, 8778, 8793-8794,
8804-8805, 8811-8812, 8815, 8817-8819,
8832, 8837, 8843, 8846-8852, 8855-8856,
8863-8865
Detailed analysis of 8669, 8701, 8707,
8715, 8719, 8723, 8731, 8747, 8757,
8776, 8793, 8812, 8815, 8847-8849,
8851, 8855-8856, 53 FR 51428
V-12
-------
Feasibility study (cont.)
Feasibility study (cont.)
Comparative analysis 8712,
8849, 8855-8856
Development of 8701, 8711, 8713-
8715, 8727, 8731, 8747, 8775, 8777,
8782, 8787, 8848, 53 FR 51426
Nine criteria (see entries below under
this heading, "Nine criteria (to
evaluate alternatives)" and "Nine
criteria (functional categories)")
No-action (see also "Ground water ~
Restoration ~ Natural attenuation")
8680, 8701, 8710-8712, 8715, 8732,
8748-8749, 8798, 53 FR 51427
Preferred 8711,8714,8722,8724-
8725, 8730-8731, 8850-8851, 8855
Range of 8701, 8704-8705, 8708,
8711-8712, 8714-8715, 8720, 8723-
8725, 8727-8729, 8731-8732, 8793,
8848-8849
Screening of 8700, 8702-8703, 8706,
8711-8712, 8714-8715, 8717, 8719-
8720, 8722-8730, 8739, 8775-8776,
8794, 8801, 8804, 8815, 8849, 8856,
53 FR 51426-51427
Definition of 8815, 53 FR 51399
Nine criteria (to evaluate alternatives)
8669-8702, 8706, 8711-8712, 8719-8732,
8743, 8776, 8778, 8801, 8849-8851
Community acceptance 8712, 8719,
8723-8725, 8730-8731, 8850-8851
Compliance with ARARs (see also
"Applicable or relevant and appropriate
requirements") 8712, 8719-8720,
8724-8728, 8731, 8795, 8849-8851
Cost 8702, 8706, 8712, 8719, 8722-
8732, 8793, 8801, 8811-8812, 8850-
8851, 53 FR 51427-51428
Implementability 8712, 8719, 8722,
8724-8725, 8727, 8731-8732, 8850-
8851
Long-term effectiveness and
permanence 8688-8669, 8701-8702,
8712, 8719-8720, 8722, 8725, 8727-
8729, 8731-8732, 8778, 8788, 8795,
8801, 8849-8851
Protection of human health and the
environment 8702, 8712, 8719-8720,
8724-8728, 8731, 8849-8851
Reduction of toxicity, mobility, or
volume through treatment (see also
"CERCLA section 121 requirements
for selection of remedy") 8669, 8701-
8702, 8712, 8719-8725, 8727-8729,
8731-8732, 8778, 8849-8851
Short-term effectiveness 8712, 8719-
8722, 8724-8725, 8727-8728, 8731-
8732, 8850-8851
State acceptance 8712, 8719, 8723-
8726, 8730-8731, 8850-8851
Nine criteria (functional categories) 8669-
8702, 8719, 8723-8732, 8850-8851
Modifying criteria 8669, 8719, 8723-
8724, 8729-8731, 8850-8851
Primary balancing criteria 8669,
8719, 8723-8726, 8728-8731, 8850-
8851
Threshold criteria 8669, 8719, 8723-
8726, 8728-8729, 8731, 8810, 8850-
8851
Remediation goals (see "Remedial
investigation/feasibility study -- Remediation
goals" and "Cleanup goals, levels, and
standards")
Risk assessment (see "Remedial
investigation - Risk assessment" and
"Remedial investigation - Baseline risk
assessment")
V-13
-------
Federal agencies
Fund
Federal agencies (see also "Federal facility(ies)")
8666-8667, 8669-8671, 8673-8684, 8689, 8693-8694,
8716-8718, 8724, 8736, 8741, 8750, 8774-8776,
8786-8789, 8802, 8811, 8832-8835, 53 FR 51394-
51406, 53 FR 51412-51414, 53 FR 51417, 53 FR.
51436, 53 FR 51450, 53 FR 51455, 53 FR 51460,
53 FR 51464-51467, 53 FR 51471-51472
Additional responsibilities and assistance
8669, 8676, 8683, 8773-8774, 8832-8835
Capabilities 53 FR 51402
General organization concepts 8671, 8819
Hazardous waste compliance docket 8668,
8676-8677
- Participation 8667,8682-8683,8724,
8832-8835
Federal Coordinating Officer (FCO) 8814, 8829,
8833
Federal Emergency Management Agency (FEMA)
8683, 8685, 8814, 8829-8830, 8833, 8835, 8843
Federal facility(ies) 8666-8668, 8674, 8676-8677,
8684, 8689-8690, 8693, 8695, 8698-8699, 8706,
8731, 8774-8775, 8802, 8841, 8844-8845, 8851,
8854, 8859, 8864, 53 FR 51395, 53 FR 51405
Administrative record requirements (see
"Administrative record - Federal facilities")
Applicability ofNCP (see also "Authority
for and applicability of the NCP") 8874-
8875, 53 FJR 51458
Exemptions for federal facilities 8774
Interagency agreements (lAGs) 8668, 8674,
8731
Joint selection of remedy 8851
State involvement (see "State - Federal
facilities and states")
- SubpartK 8666-8667,8671,8683-8684,
8774-8775, 8813
Federal-lead 8749, 8776, 8780, 8784, 8819, 8828,
8835, 8843-8844, 8853
Federally permitted release 53 FJR 51400
Federal Radiological Emergency Response Plan
(FRERP) 8829,8833
Federal trustees designation (see "Trustees for
natural resources - Designation of and "Trustees
for natural resources » Federal") 8707-8708, 8814,
8819, 8830, 8857
Federal water quality criteria (FWQC) (see
"Applicable or relevant and appropriate requirements
— Federal water quality criteria" and "Water quality
criteria")
FEMA (see "Federal Emergency Management
Agency")
Field sampling plan (see "Project plans - Sampling
and analysis plan — Field sampling plan")
Final remedy selection (see "Selection of remedy")
First federal official 8677, 8829
Definition of 8815
Five-year review 8699-8701, 8725, 8730-8731,
8757, 8851-8852, 53 FR 51430
"Freezing" ARARs (see "Applicable or relevant and
appropriate requirements - Newly promulgated or
modified requirements")
FRERP (see "Federal Radiological Emergency
Response Plan")
FS (see "Feasibility study")
Fund (see also "Fund-financed" and "Non-Fund-
financed") 8674, 8677, 8681, 8695-8698, 8737-
8739, 8747, 8749-8750, 8814-8819, 8828-8829,
8832, 8834, 8838-8841, 8843-8847, 8850, 8852-8859
Definition of 8815
V-14
-------
Fund-balancing waiver
Ground water
Fund-balancing waiver (see "Applicable or relevant
and appropriate requirements — Waivers -- Fund-
balancing")
Fund-financed 8667, 8669, 8674, 8677, 8681, 8690,
8694-8699, 8723, 8729, 8735-8736, 8739-8740,
8749-8750, 8766, 8773-8774, 8776-8780, 8782-8787,
8797, 8817, 8843-8844, 8846, 8850, 8852-8856,
8858
Fundamental alteration of remedy (see "Record of
decision - Amendment to")
Funding 8674, 8676, 8683, 8693, 8695, 8697, 8698,
8707, 8774, 8778-8780, 8791, 8798-8799, 8811,
8839,8841, 8853, 8859
Mixed funding (see "Potentially responsible
party(ies) ~ Settlements - Mixed funding")
Oil pollution funds (see "Discharge of oil ~
Oil pollution funds")
FWQC (see "Applicable or relevant and appropriate
requirements - Federal water quality criteria")
General organization concepts (see "Federal agencies
- General organization concepts")
General pattern of response (see "Discharge of oil ~
General pattern of response")
Goal (see "Remedial investigation/feasibility study -
Program goal" and "Remedial
investigation/feasibility study — Remediation goals"
and "Cleanup goals, levels, and standards")
Good faith offer (see "Potentially responsible
party(ies) - Negotiations with PRPs - Good faith
offer")
Grants (see "Core Grant Program," "Public
participation requirements ~ Technical assistance
grants," and "Delegation")
Greater risk to human health and the environment
waiver (see "Applicable or relevant and appropriate
requirements - Waivers - Greater risk to human
health and the environment")
Ground water 8695-8696, 8702, 8705, 8708, 8710,
8713, 8715-8717, 8723, 8727, 8732-8739, 8743-
8744, 8747, 8750, 8752-8757, 8765-8766, 8774,
8778, 8789, 8815-8816, 8834, 8846-8848, 8852-
8853, 8865
Cleanup levels (see also "Cleanup
goals/levels/standards") 8701, 8709, 8716-
8718, 8724, 8733-8734, 8784
Alternate concentration limits (ACLs)
8699, 8715, 8732, 8753-8754, 8765,
8848
Maximum contaminant levels and
maximum contaminant level goals (see
"Applicable or relevant and appropriate
requirements — Maximum contaminant
levels" and "Applicable or relevant and
appropriate requirements - Maximum
contaminant level goals")
Definition of 8815
Guidelines for ground water classification
(i.e.. Class I. II, or III well) 8732-8733,
8753
Management of migration 8703-8705,
8710, 8734-8735, 8816-8818, 8842-8846,
8848
Definition of 53 FR 51399
- Policy 8670,8717,8732,8744,8754
Point of compliance (see "Points of
compliance - Ground water")
- Protection Strategy 8732-8733,8750,53
FR 51433
- Restoration 8669,8734-8737,8750,8752-
8755, 8765, 8772, 8778, 8811-8812, 8832,
8846, 8849, 8852, 8854, 8858
Cleanup levels (see entry above under
this heading, "Cleanup levels")
V-15
-------
Ground water (cont.)
Indian Tribe
Measures (see "Operation and
maintenance -- Ground water
restoration measures")
Methods 8732, 8736-8737, 8743
Natural attenuation 8706, 8733-8735,
8753, 8757-8758, 8768, 8771, 8773
Timeframe 8705, 8732, 8734, 8774,
8849
Hazard Ranking System (HRS) (see also "National
Priorities List" and "Non-NPL site") 8668, 8699,
8781, 8801, 8805, 8814-8815, 8844-8846,8854-
8855, 53 FR 51413-51414
Definition of 8816
Hazardous substance (definition of) (see also
"Pollutant or contaminant (definition of)") 8816
Hazardous waste determination (see "Testing --
RCRA waste")
Hazardous waste management facility 8674, 8725
Hazardous Waste Treatment Council petition 8691
Health and safety plan (see also "Project plans -
Health and safety plan") 8707
Health assessments) (see also "Agency for Toxic
Substances Disease Registry - ATSDR health
assessments") 8667, 8681, 8709, 8723, 8800, 8832,
8834, 8840, 8860, 53 FR 51402, 53 FR 51407
Health-based requirements) 53 FR 51436
Health effects study 8681, 53 FR 51402
HHS (see "Department of Health and Human
Services")
HRS (see "Hazard Ranking System")
Human health and the environment (see "CERCLA
section 121 requirements for selection of remedy ~
Protection of human health and the environment"
and "Feasibility study ~ Nine criteria (to evaluate
alternatives) - Protection of human health and the
environment")
Hybrid closure (see "RCRA ARARs ~ Closure -
Hybrid closure")
IAG (see "Interagency Agreement")
Identification of applicable or relevant and
appropriate requirements (see "Applicable or relevant
and appropriate requirements ~ Identification of)
Imminent and substantial endangerment 8675, 8677,
8709-8710, 8803, 8814, 8817, 8829, 8839, 8842,
8860, 53 FR 51467
Endangerment assessment 8675, 8677,
8709-8710
Implementability (see "Feasibility study - Nine
criteria (to evaluate alternatives) —
Implementability")
Incident-specific teams 8671-8673, 8680, 53 FR
51401
Incineration (see "Remedies ~ Treatment (or
treatment technology) -- Incineration")
Inconsistent application of state requirements waiver
(see "Applicable or relevant and appropriate
requirements - Waivers -- Inconsistent application
of state requirements")
Index (i.e., Table of Contents)
- Preamble to final NCP 8669
- NCP distribution table 53 FR 51397
- Final NCP rule 8813
Indian tribe 8698, 8741, 8745-8747, 8766, 8775,
8778, 8780, 8786-8789, 8792, 8794, 8797-8799,
8804,8816, 8818-8819, 8827,8835,8845, 8853-
8855, 8857-8858, 53 FR 51401
Definition of 8816
Involvement during response 8668-8671,
8673, 8686, 8730, 8779-8780
V-16
-------
Indian tribe (cont.)
Liability
Treated as states 8733, 8780, 53 FR 51398
Applicability of state involvement
requirements 53 FR 51456
Tribal laws as ARARs (see "Applicable or
relevant and appropriate requirements -
Indian tribe (or tribal) laws as ARARs")
Trustees for natural resources under
CERCLA (see "Trustees for natural
resources - Indian tribe")
Information repository (see also "Administrative
record" and "Public participation requirements -
Information repository") 8755, 8766, 8768, 8771,
8773, 8844, 8846-8847, 8851-8852, 8858, 53 FR
51465
Initiation of action 8686-8687, 8704-8705, 8775,
8777, 8782, 8806-8807, 8829, 8846
Injunction/injunctive relief 8746, 8803, 8858
Inland water(s) 8787, 8816, 8818, 8834
Definition of 8816
Inland zone 8672, 8816, 8828, 8833
Definition of 8816
Innovative technologies (see "Remedies - Treatment
(or treatment technology) - Innovative")
Institutional controls (see "Remedies - Institutional
controls")
Interagency Agreement (IAG) (see also "Federal
facilities ~ Interagency agreements") 8698, 8731,
8832, 8839
Interim action/measure/remedy (see "Remedies ~
Interim")
Interviews (see "Public participation requirements -
Community interviews)")
Investigation-derived waste (see "Wastes -
Investigation-derived waste")
Joint inspection (see "State ~ Joint inspection with
EPA")
Judicial review (see also "Administrative record -
Judicial review of administrative record") 8663,
8803, 8807
Land disposal restrictions (LDRs) (see "RCRA
ARARs - Land disposal restrictions")
Landfill closure (see "RCRA ARARs ~ Closure -
Landfill closure")
Land use (see "Remedial investigation - Risk
assessment — Land use")
LCP (see "Contingency plan(s) - Local")
LDRs (see "RCRA ARARs - Land disposal
restrictions")
Lead agency 8667-8669, 8674, 8676-8677, 8679-
8681, 8688, 8690-8692, 8694, 8696-8697, 8704,
8706-8708, 8711-8712, 8715-8716, 8720, 8723-8724,
8727, 8730-8731, 8733, 8776-8777, 8779-8784,
8789-8792, 8795-8796, 8798, 8800-8808, 8810, 8816
- Definition of 8668, 8816, 53 FR 51398
State as (see "State ~ Lead agency, state
as")
Lead authorized official 8789
Lead trustee (see "Trustees for natural resources -
Lead trustee")
LEPCs (see "Local Emergency Planning
Committees")
Level of remediation (see "Remedial
investigation/feasibility study - Remediation goals"
and "Cleanup goals, levels, and standards")
Liability 8666, 8687, 8691-8693, 8708, 8736, 8757,
8768, 8779, 8786, 8788, 8793-8794, 8802, 8807-
8808, 8838, 8858-8859
- Release from liability 8691, 8798, 8859
Standard of liability 8798,8858-8859
V-17
-------
Limitations on response
Miscellaneous oil spill control agent
Limitations on response (see "Response action —
Limitations on")
Listing sites in CERCLIS (see "CERCLIS -- Listing
sites in CERCLIS")
Local contingency plan (LCP) (see "Contingency
plan(s) -- Local")
Local emergency planning committees (LEPCs)
8667, 8671-8674, 8678, 8682, 8684-8686, 8693,
8814, 8827, 8836, 8842
Local emergency response plans 8669, 8682, 8684-
8686, 8693, 8826-8827, 8832, 8836-8837
Local governments (see also "State and local
participation in response") 8671-8674, 8677-8679,
8684-8685, 8706, 8733, 8738, 8775, 8789, 8812,
8814, 8819, 8826-8829, 8833, 8835, 8839, 8858-
8859
Reimbursement for response costs 8798-
8799, 8858-8859, 53 FR 51411
Requirements as TBCs (see "To-be-
considereds")
Local participation (see "State and local participation
in response")
Location-specific ARARs (see "Applicable or
relevant and appropriate requirements ~ Types of
ARARs")
Long-term effectiveness and permanence (see
"Feasibility study - Nine criteria (to evaluate
alternatives) — Long-term effectiveness and
permanence")
Long-term management controls (see also "Operation
and maintenance," "Remedies — Source control -
Maintenance measures," and "State — Assurances --
Operation and maintenance") 8700-8701, 8706,
8720, 8722-8723, 8727-8728, 8848
Long-term response (or remedial) actions (LTRAs)
8667, 8698-8700, 8774, 8806, 8843
Low-level threat (see "Threats")
LTRAs (see "Long-term response (or remedial)
actions")
Maintenance measures (see "Remedies ~ Source
control - maintenance measures," "State —
Assurances — Operation and Maintenance," and
"Operation and maintenance")
Management of migration (see "Ground water -
Management of migration")
Management principles (see "Remedial
investigation/feasibility study - Program
management principles")
Material Safety Data Sheet (MSDS) (see "Title III --
Material safety data sheet")
Maximum contaminant levels (MCLs) (see
"Applicable or relevant and appropriate requirements
-- Maximum contaminant levels and Maximum
contaminant level goals")
Maximum contaminant level goals (MCLGs) (see
"Applicable or relevant and appropriate requirements
- Maximum contaminant levels and Maximum
contaminant level goals")
Maximum extent practicable (MEP) (see "CERCLA
section 121 requirements for selection of remedy -
Permanent solutions and treatment to the maximum
extent practicable")
MCL(s) (see "Applicable or relevant and appropriate
requirements - Maximum contaminant levels")
MCLG(s) (see "Applicable or relevant and
appropriate requirements — Maximum contaminant
level goals")
MEP (see "CERCLA section 121 requirements for
selection of remedy - Permanent solutions and
treatment to the maximum extent possible")
Mining waste (see "Wastes - Mining waste")
Miscellaneous oil spill control agent 8808-8809,
8816, 8861-8862, 8864
- Definition of 8816, 53 FR 51399
V-18
-------
Mixed funding
National System for Emergency Coordination
Mixed funding (see "Potentially responsible
party(ies) — Settlements -- Mixed funding")
Mobility (see "Feasibility study ~ Nine criteria (to
evaluate alternatives) -- Reduction oftoxicity,
mobility, or volume through treatment")
Modifying criteria (see "Feasibility study ~ Nine
criteria (functional categories) — Modifying
criteria")
Moratoria (see "Potentially responsible party(ies) ~
Special notice and moratoria")
MSDS (see "Title III - Material safety data sheet")
Multiple contaminants or pathways (see also
"Additive risk or additivity" and "Risk range")
8701, 8712-8713, 8715, 8717, 8719, 8729, 8750-
8751, 8753, 8848
Multi-regional response (see "Response action -
Multi-regional")
Municipal landfills (see also "RCRA ARARs ~
Closure - Landfill closure") 8704, 8714, 8725,
8749, 8812
National capacity variance (see "Variances --
National capacity variance")
National Contingency Plan(s) (NCP) (see also "1985
NCP," "Purpose and objectives of the NCP," "Scope
of the NCP," and "NCP product schedule") 8668-
8671, 8673, 8679-8680, 8682, 8692, 8754, 8771,
8815-8816, 8818, 8827, 8862
National Emission Standards for Hazardous Air
Pollutants (NESHAPs) 53 FR 51447
National Institute for Occupational Safety and Health
(NIOSH) 8814
National Marine Sanctuary ecosystems 8683-8684
National Oceanic and Atmospheric Administration
(NOAA) (see also "Department of Commerce")
8678-8679, 8788, 8790, 8809, 8814, 8830
National Priorities List (NPL) (see also "Non-NPL
site" and "Hazard Ranking System") 8666-8671,
8676-8677, 8680, 8682-8683, 8692-8694, 8698-8700,
8702, 8704, 8706, 8709, 8732, 8737, 8774, 8776-
8777, 8779-8783, 8786, 8796-8797, 8799, 8801,
8805-8807, 8812, 8814-8816, 8828, 8834, 8840,
8842-8843, 8845-8847, 53 FR 51414
Construction completion category 8699-
8700, 8704-8705, 8712, 8720
Deferral from (see "Deferral policies")
Definition of 8816
- Deletion from 8689-8700,8702,8706,
8845-8846, 53 FR 51414
Establishing remedial priorities 8687,
8698, 8845, 53 FR 51414
Listing procedures 8845, 53 FR 51414
Public participation (see "Public
participation requirements - NPL process
(listing and deletion)")
- Purpose of the NPL 8845, 53 FR 51415
Recategorizing sites 8699-8700,8845,53
FR 51415
Removal actions at (see "Removal
action(s) - NPL sites, removal actions at")
National Response Center (NRC) 8667, 8669, 8671-
8672, 8675-8677, 8683-8684, 8686, 8693, 8795,
8797, 8814, 8827-8831, 8835, 8837-8838, 8841-
8842,8858
National Response System Concepts flow diagram
8821
National Response Team (NRT) 8666, 8668-8669,
8671-8672, 8675-8678, 8680-8683, 8685, 8814-8815,
8819-8820, 8826-8830, 8834-8836, 8864, 53 FR
51414
National Strike Force (NSF) 8678, 8814, 8830-8831
National System for Emergency Coordination 53 FR
51403
V-19
-------
Natural attenuation
Notice of availability
Natural attenuation (see "Ground water -
Restoration — Natural attenuation")
Natural resource(s) (see also "Trustees for natural
resources") 8666, 8669-8670, 8678-8679, 8681-
8685, 8687, 8694, 8704, 8707-8708, 8715, 8720,
8722-8723, 8786-8792, 8795, 8814-8816, 8819,
8826, 8829-8831, 8834, 8838, 8842, 8847, 8857-
8858, 8861, 53 FR 51408
Claims (limits on Fund use) (see also
"Claims -- Natural resource damages")
8707-8708, 53 FR 51461
Contiguous 8789
Damage assessments 8682-8683, 8707-
8708, 8786-8787, 8789-8791, 8795, 8809-
8810, 8842, 8847, 8857-8858
- Response actions 8682-8683,8707-8708,
8838
Restoration of 8789
Naturally occurring substances (see "Response action
~ Limitations on - Naturally occurring substances")
Navigable waters (see also "Non-navigable waters")
8668, 8671, 8814-8817, 8829, 8857, 8861
Definition of 8816
NCP (see "National Contingency Plan(s)")
NCP Product Schedule (see also "National
Contingency Plan(s)," "Purpose and objectives of the
NCP," "Scope of the NCP," and "1985 NCP")
8808-8810, 8861-8862, 8864
Negotiations (see "Potentially responsible party(ies) -
- Negotiations with PRPs")
NESHAPs (see "National Emission Standards for
Hazardous Air Pollutants")
Net present value (see "Cost -- Net present value")
Newly promulgated or modified requirements (see
"Applicable or relevant and appropriate requirements
— Newly promulgated or modified requirements")
NFRAP (see "CERCLIS ~ No further response
action planned")
Nine criteria (see "Feasibility study - Nine criteria
(to evaluate alternatives)" and "Feasibility study -
Nine criteria (functional categories)")
1985 NCP (see also "National Contingency Plan(s),"
"Purpose and objectives of the NCP," "NCP Product
Schedule," and "Scope of the NCP") 8684-8685,
8698-8708, 8711-8712, 8719, 8723-8724, 8726-8728,
8741, 8747, 8775, 8777, 8787, 8789, 8792, 8794-
8795,8811-8812
NIOSH (see "National Institute for Occupational
Safety and Health")
No-action (see "Feasibility study - Alternatives
(remedial) - No-action" and "Ground water -
Restoration - Natural attenuation")
No Further Response Action Planned (NFRAP) (see
"CERCLIS - No further response action planned")
Noncarcinogens (see also "Carcinogens") 8711-
8713, 8745, 8750, 8752, 8848
Noncontiguous facilities (see "On-site ~
Noncontiguous facilities" and "Natural resources -
Contiguous")
Non-Fund-financed (see also "Fund" and "Fund-
financed") 8669, 8695-8696, 8776-8777, 8779-8780,
8782-8783, 8828, 8845, 8854-8856
Nongovernmental participation (see also "Private
party cleanups," "Person(s)," and "Consistent with
the NCP") 8669, 8684, 8793, 8835, 53 FR 51403
Non-navigable waters (see also "Navigable waters")
8817
Non-NPL site (see also "National Priorities List" and
"Hazard Ranking System") 8667, 8676, 8689, 8694,
8698, 8783, 8796, 8816, 8843
Non-time-critical (see "Removal action(s) - Non-
time-critical")
Notice of availability 8766, 8772, 8805-8807, 8844,
8846, 8851-8852, 8855, 8860-8861
V-20
-------
Notice of availability (cont)
On-scene coordinator
Administrative record (see "Administrative
record — Availability of)
Proposed plan (see "Proposed plan -
Availability of)
Notification 8741, 8746, 8767, 8769, 8775, 8781,
8785-8792, 8795. 8801. 8805-8808, 8842,8847,
8857, 53 FR 51408
And communications 8669,8672,8675-
8676. 8741. 8828, 53 FR 51401
Notice letters (see "Potentially responsible
party(ies) — Notice letters")
Of natural resource trustee (see "Trustees
for natural resources - Notification of)
Of potentially responsible parties (see
"Potentially responsible party(ies) - Early
notification ofPRPs" and "Potentially
responsible party(ies) - Notice letters")
Of states (see "Potentially responsible
party(ies) - Negotiations with PRPs -
Notice to states")
Or discovery (see "Discovery or
notification")
Out-of-state transfer of CERCLA wastes
(see "Transfer of Superfund waste - Out-of-
state")
Reportable quantity (see "Reportable
quantity")
Not inconsistent with the NCP (see "Consistent with
the NCP - Not inconsistent with the NCP")
NPL (see "National Priorities List")
NRC (see "National Response Center" and "Nuclear
Regulatory Commission")
NRT (see "National Response Team")
NSF (see "National Strike Force")
Nuclear Regulatory Commission (NRC) 8683,8814,
8817,8835
Number and gender (as used in the NCP) 8819
O&M (see "Operation and maintenance")
Occupational Safety and Health Act (OSHA)
programs (see also "Worker Health and Safety")
8679-8680.8831
Office of Management, and Budget (OMB) Circular
A-94 8722-8723
Offshore facility (see "Facility ~ Off-shore")
Off-site (see also "State -- Assurances - Off-site
facility compliance") 8689, 8691-8692, 8701, 8737.
8756. 8758. 8817-8818, 8840, 8842-8845, 8850,
8860
Preference against off-site disposal without
treatment 8695. 8714-8715, 8725. 8731,
8818, 8851
Procedures for planning and implementing
off-site response actions 8666
Requirements for off-site transfer 8667-
8668, 8725, 8731, 8756. 8842, 8844-8845,
8860
Oil 8666. 8672, 8675-8677, 8680-8681, 8683-8687,
8697, 8774. 8786. 8788, 8790, 8792, 8808-8810.
8813-8819, 8826, 8828-8830, 8835-8839, 8857,
8861-8862, 8864-8865
Definition of 8816
Oil pollution funds (see "Discharge of oil - Oil
pollution funds")
Oil spill (see "Discharge of oil")
Oil spill control agent 8809
OMB Circular A-94 (see "Office of Management
and Budget Circular A-94")
On-scene coordinator (OSC) (see also "Removal
action(s)" and "Special teams and other assistance
V-21
-------
On-scene coordinator (cont)
OU
available to OSCs/RPMs") 8672-8673, 8818, 53 FR
51401
- Definition of 8816, 53 FR 51398
General responsibilities 8671,8674,8693,
8789-8792, 8795, 8808-8810, 8816, 8820,
88264839
- Predesignated OSC 8675-8676,8678,
8686-8687,8693, 8697,8815-8816, 8818,
8826, 8828-8829, 8837
- OSC reports 8669,8681-8682,8806-8807,
8832, 8838, 8857, 53 FR 51402, 53 FR
51410
On-shore facility (see "Facility - On-shore")
On-site 8667, 8671, 8684, 8688-8692, 8701, 8706.
8725, 8738, 8741-8742, 8747, 8750, 8755-8760,
8762, 8777, 8806-8807, 8830-8831, 8840, 8842-
8844, 8850, 8860-8861
- Definition of 8817, 53 FR 51406-51407
Permit exemption (see also "Testing ~
Treatability testing") 8688-8692, 8840, 53
FR 51407
Noncontiguous facilities 8690-8691, 53 FJR
51407
Operable unit (see also "Remedies - Interim,"
"Applicable or relevant and appropriate requirements
— Waivers - Interim measures.'' and "Operation and
maintenance ~ Temporary or interim measures")
8671, 8704-8708, 8713, 8731, 8738-8739, 8750,
8759, 8846-8847
Bias for action (see "Remedial
investigation/feasibility study — Program
management principles — Bias for action")
• Definition of 8817, 53 FR, 51399
Threshold for Fund-balancing waiver (see
"Applicable or relevant and appropriate
requirements ~ Waivers - Fund-
balancing")
Operational and functional 8736-8737, 8739-8740,
8778, 8811, 8853-8854
Operation and maintenance (O&M) (see also "Long-
term management controls," "Remedies - Source
control - Maintenance measures," and "State -
Assurances — Operation and maintenance") 8668,
8699-8700, 8706, 8720, 8722, 8727-8729, 8735-
8740, 8756-8757, 8777-8778, 8797-8798, 8814,
8850, 8852, 8858, 53 FR 51453
Cost-share (see also "State — Assurances —
Cost-share") 8777-8778,8854
- Definition of 8817, 53 FR 51399
Ground water restoration measures 8736-
8738, 8753, 8811, 8834, 88534854, 53 FR.
51454
Reporting and recordkeeping 8736, 8740,
8756-8757,8811
State assurance of (see "State — Assurances
-- Operation and maintenance")
Temporary or interim measures (see also
"Remedies - Interim" and "Applicable or
relevant and appropriate requirements —
Waivers - Interim measures") 8669, 8699,
8738
Opportunity to concur (see "Concurrence")
Oral reference doses (see "Reference doses")
OSC (see "On-scene coordinator")
OSC contingency plans (see "Contingency plan(s) -
OSC")
OSC reports (see "On-scene coordinator ~ OSC
reports")
OSHA programs (see "Occupational Safety and
Health Act (OSHA) programs")
Other persons (see "Private party cleanups" and
"Person(s)")
OU (see "Operable Unit")
V-22
-------
Oversight
Population
Oversight 8834
Lead agency oversight of support agency
8704, 8735, 8769, 8776, 8781-8782, 8841,
8847
Of contractors 8735-8736
OfPRPs (see "Potentially responsible
paity(ies) - Oversight ofPRPs")
Of response action 8692,8796
- Of states 8775-8776,8853
OSC oversight (see "On-scene coordinator -
General responsibilities")
Owner/operator 8667, 8687-8689, 8698, 8764, 8797,
8842
PA (see "Preliminary assessment")
Pathway(s) (see "Exposure - Pathways")
PCBs (see "Polychlorinated biphenyls")
Permanence or permanent solutions (see "Feasibility
study - Nine criteria (to evaluate alternatives) -
Long-term effectiveness and permanence" and
"CERCLA section 121 requirements for selection of
remedy - Permanent solutions and treatment to the
maximum extent practicable")
Permits (see also "Applicable or relevant and
appropriate requirements - Substantive versus
administrative requirements" and "On-site — Permit
exemption") 8669, 8674, 8686, 8688-8692. 8697,
8698, 8706, 8714, 8741, 8756-8757, 8760, 8762,
8764-8765, 8841, 8850, 8855, 8858
Person(s) (see also "Private party cleanups") 8668,
8672, 8675, 8676, 8686, 8690, 8693, 8752, 8761,
8769, 8771, 8773, 8788-8789, 8792, 8795-8798,
8814, 8817, 8828-8829, 8831, 8835-8837,8839-
8842, 8844-8845, 8850, 8857-8861
Definition of 8817
Petitions (see "Preliminary assessment - Citizens'
petitions")
Placement (see "RCR A ARARs - Land disposal
restrictions - Placement")
Planning
And coordination structure 8669, 8673,
8684-8685,8836
- And preparedness 8666,8671-8672,8684-
8685,8814, 8819,8826,8828,8835, 53 FR
51403
Planning period (see "Removal actions -
Planning period")
Procedures for planning and implementing
off-site response actions (see "Off-site -
Procedures for planning and implementing
off-site response actions")
Points of compliance 8713
Air and surface water 8713,8753
- Ground water 8713,8753-8754
Remote location 8734, 8753-8754
Several sources in close geographical
proximity 8753-8754
Point of departure (see "Risk range - Point of
departure")
Political subdivisions 8798-8799,8854-8857,8859
Pollutant or contaminant (definition of) (see also
"Hazardous substance (definition of)") 8817, 53 FR
51407
Pollution report (Polrep) 8674, 8678, 8682,8818,
8827,8830
Polrep (see "Pollution report")
Polychlorinated biphenyls (PCBs) 8704, 8725,8748,
8764-8765
Population 8686. 8691, 8722, 8768, 8837, 8842,
8855
V-23
-------
Population (cont.)
Preliminary assessment
Factor in determining cleanup levels 8713,
8717-8718, 8734, 8848
Post-removal site control (see "Removal action -
Post-removal site control" and "Operation and
maintenance")
Potentially responsible party(ies) (PRP) (see also
"Enforcement") 8667, 8674-8675, 8678-8681, 8686,
8691, 8695-8696, 8705, 8707, 8711, 8716, 8720,
8723-8724, 8735-8736, 8739, 8745, 8748, 8750,
8757, 8762, 8767-8769, 8772-8773, 8777, 8781-
8783. 8785, 8788, 8794, 8796-8798, 8800-8802,
8804, 8807, 8811, 8815, 8817,8829, 8831, 8835,
8837-8838, 8840-8845, 8847, 8853-8854
Designating PRPs as access representatives
8687-8688
Early notification of PRPs 8694, 8775, 53
FR 51432
- Negotiations with PRPs 8668,8716,8724,
8757, 8771, 8773-8774, 8785-8786, 8789,
8791-8792, 8847, 8854, 8856-8858
Good faith offer 8774
Notice to EPA 8798
Notice to states 8697, 8740-8741,
8785, 8792, 8856
- Notice letters 8774-8775,8785,8791,
8798,8854, 53 FR 51467
- Oversight of PRPs 8670,8675,8692-8693,
8725, 8735-8736, 8769, 8775-8776, 8781-
8782, 8785-8786, 8796, 8802, 8841, 8847,
8853-8854
PRP-lead activities 8668,8692-8693,8695-
8697, 8729, 8670, 8735-8736, 8741, 8755,
8766, 8773-8744
- Settlements 8694,8705,8716,8724,8757.
8768, 8772-8775, 8791, 8785-8786, 8791,
8796-8797, 8847
Consent decree(s) 8687, 8692, 8735,
8739, 8771, 8777, 8785-8786, 8797,
8828, 8840-8841, 8847, 8852, 8857-
8860
Covenant not to sue 8791-8792
De minimis parties 8798,8847
Mixed funding 8668, 8774, 8798-8799,
53 FR 51462
Special notice and moratoria 8670, 8677,
8773-8775, 53 FR 51432
Practicable (see also "CERCLA section 121
requirements for selection of remedy - Permanent
solutions and treatment to the maximum extent
practicable") 8667-8668, 8675, 8677, 8682, 8684,
8686, 8693-8696, 8698, 8700-8706, 8714-8716,
8719-8721, 8724-8726, 8728-8735, 8739, 8741,
8747-8748, 8752-8754, 8756, 8763, 8766, 8775,
8778, 8782, 8788, 8793-8794, 8796-8797, 8802-
8803, 8809, 8827-8830, 8837-8843, 8846-8847,
8850-8852, 8854, 8857-8859, 8861-8862
Preauthorization or prior approval (see "Claims —
Preauthorization or prior approval)
Predesignated OSC (see "On-scene coordinator -
Predesignated OSC")
Predesignated On-scene Coordinator (OSC) (see
"On-scene coordinator - Predesignated OSC")
Preferred alternative (see "Feasibility study —
Alternatives (remedial) — Preferred")
Preliminary assessment (PA) (see also "Preliminary
assessment/site inspection," "Response action ~ Pre-
remedial." and "Site inspection") 8668 8676, 8693,
8814, 8818, 8845, 8847, 8854, 8860
Citizen petitions 8801, 8841, 8844-8845, 53
FR 51412
- Definition of 8817, 53 FR 51399
Preliminary assessment and initiation of
action (see "Discharge of oil — Preliminary
assessment and initiation of action")
- Removal PA 8693,8842-8845
V-24
-------
Preliminary assessment (conk)
Proposed plan
- Remedial PA 8844-8845, 53 FR 51412-
51413
- State role 53 FR 51456
Preliminary assessment/site inspection (PA/SI) (see
also "Preliminary assessment," "Site inspection,"
"Response action - Pre-remedial," and "Public
participation requirements ~ Preliminary
assessment/site inspection") 8668, 8694, 8767,
8780-8781.8858
Preliminary remediation goals (see "Remedial
investigation/feasibility study - Remediation goals --
Preliminary")
Preparedness planning (see also "Contingency
plan(s)") 8671-8672, 8683, 8790, 8814,8818-8819,
8826-8828,8835-8837, 8842
Pre-remedial response (see "Response action ~ Pre-
remedial," "Preliminary assessment," "Preliminary
assessment/site inspection," and "Site inspection")
Primary balancing criteria (see "Feasibility study -
Nine criteria (functional categories) — Primary
balancing criteria")
Principal threats (see "Threats - Principal")
Prior approval (see "Claims - Preauthorization or
prior approval)
Private party(ies) 8670, 8678, 8681. 8688, 8694,
8774, 8792-8799, 8831, 8840-8841, 8858
Private party cleanups (see also "Consistent with the
NCP," "Nongovernmental participation," and
"Person(s)") 8666, 8670, 8678, 8681. 8688. 8694.
8703. 8707. 8711. 8826-8827, 8829-8831, 8834,
8838, 8840-8842, 8845, 8858-8859. 53 FR 51452
Documentation and cost recovery (see
"Documentation and cost recovery ~
Private party cleanups")
Procedures for planning and implementing off-site
response actions (see "Off-site - Procedures for
planning and implementing off-site response
actions")
Product schedule (see "NCP Product Schedule")
Program expectations (see "Remedial
investigation/feasibility study ~ Program
expectations")
Program goal (see "Remedial investigation/feasibility
study - Program goal")
Program management principles (see "Remedial
investigation/feasibility study - Program
management principles")
Project plans 8694, 8707-8708, 8715
Health and safety plan 8707
Field sampling plan 8708, 8843, 8845,
8847
Quality assurance project plan (QAPP)
8694. 8708, 8735, 8817,8843,8845, 8847,
8859-8860
Definition of 8817
Remedial action
Removal actions 8843
- RIIFS workplan 8707-8708,8712.8730.
8767, 8769, 8775, 8801. 8805. 8827, 8859-
8860
Sampling and analysis plan 8694. 8707-
8708, 8735, 8775, 8817, 8843, 8845, 8847,
8852, 8859-8860
Site investigation 8845
Property boundary of facility
Proposed plan 8694, 8712, 8719, 8730-8733. 8745,
8748, 8761, 8766-8773, 8780-8784, 8805. 8850-
8851,8854-8856, 8859-8860. 53 FR 51430
- Availability of 8731, 8807, 8850-8851,
8855, 8859
- Contents of 8704, 8720, 8730,8850-8851,
8856
V-25
-------
Proposed plan (cont)
Public participation requirements
Public review and comment 8668-8669,
8694, 8705, 8708, 8730, 8733, 8767-8773,
8780-8784, 8850-8851,8855, 8858-8859
State involvement 8668,8723-8724,8730-
8733, 8850-8851,8854-8856, 53 FR 51457
Protection of human health and the environment (see
"Feasibility study - Nine criteria (to evaluate
alternatives) - Protection of human health and the
environment" and "CERCLA section 121
requirements for selection of remedy - Protection of
human health and the environment'^
PRP (see "Potentially responsible party(ies)")
Public comment period (see "Public participation
requirements — Public comment period")
Public information and community relations (see also
"Public participation requirements - Community
relations") 8669, 8680, 8707, 8724, 8730, 8844,
8846-8847, 53 FR 51402
Public Information Assist Team (PIAT) 8678, 8814,
8831
Public participation requirements 8668, 8724, 8757,
8766-8771, 8773, 8793, 8795, 8797-8801, 8805-
8808, 8814-8815,8817, 8830-8832, 8836-8837,
8840, 8844-8847, 8850-8852, 8855, 8858, 8860-
8861, 53 FR 51402, 53 FR. 51405
Administrative record (see "Administrative
record ~ Public participation
requirements")
Amendment to Record of Decision (see also
"Record of Decision - Amendment to")
8850, 8852
Community interviews) 8776-8768,8844,
8847, 53 FR 51450
Community relations 8680,8687,8707,
8730. 8766-8771, 8773, 8798,8817, 8831-
8832, 8844, 8847, 8851-8852, 8858, 53 FR
51450-51453
Definition of 8815
Community Relations Coordinator (CRQ
(see also "Administrative Record - Records
Coordinator")
Definition of 8814-8815, 53 FR 51399
Community Relations Plan (CRP) 8707,
8766-8768, 8801,8814, 8831,8844,8860,
53 FJR 51450
Enforcement actions 8701, 53 FR 51452
Explanation of Significant Differences
(BSD) (see "Record of Decision -
Explanation of Significant Differences")
Fact sheet (see entry below under this
heading, "Remedial design/remedial action •
- Fact sheet")
Information repository (see also
"Administrative record" and "Information
repository") 8766, 8768, 53 FR, 51450
NPL process (listing and deletion) 8766,
8844-8845
Preliminary assessment/site inspection
8767
Proposed plan (see "Proposed plan - Public
review and comment")
Public briefing (see entry below under this
heading, "Remedial design/remedial action -
- Public briefing")
Public comment 8681, 8691, 8694, 8699,
8751-8752, 8766-8767, 8769-8773, 8780,
8784, 8798, 8800, 8805-8808, 8814, 8836,
8845-8847, 8850-8852, 8855, 8858, 8860-
8861
Public comment period 8669,8694,8704-
8705, 8708, 8711, 8719, 8723-8724, 8730-
8731, 8766-8767, 8769-8772, 8800, 8802,
8805-8808, 8844-8847, 8851-8852, 8858,
8860-8861
Extending public comment period
8669, 8770, 8844, 8851-8852, 8861
V-26
-------
Public participation requirements (cont.)
RCRA ARARs
Length of public comment period
8766, 8769-8770, 8807-8808, 8844,
8846, 8861
On administrative record (see
"Administrative record - Public
participation requirements")
Public meeting 8697, 8707, 8766-
8767, 8769-8770, 8773, 8794, 8851-
8852
Transcript required 8766, 8769,
8851-8852
Response to early comments
encouraged 8769, 8805-8806, 8861
Written response required 8844, 8846,
8851-8852, 8860-8861, S3 FR 51451
Public information and community relations
8680, 8707, 8724, 8730, 8767, 8773, 8798,
8851-8852, 8858, 8860-8861, 8864
Record of Decision (see "Record of
Decision")
Remedial design!remedial action (see also
"Remedial design/remedial action") 8850,
53 FR 51450, 53 FR 51452
Fact sheet 8669. 8767-8768, 8770-
8771, 8852
Public briefing 8669, 8767, 8771
Removal actions 8669, 8806, 8831, 8844,
8858, 53 FR 51450
RIIFS and selection of remedy 8668, 8688,
8762, 8766, 8768, 8770, 8793, 8855, 8858-
8861
Significant changes (see entry above under
this heading, "Explanation of Significant
Differences")
Technical Assistance Grants (TAGs) 8668,
8767, 8769, 8770, 8773, 8806
Public vessel (definition of) 8817, 53 FR 51400
Pump and treat (see "Remedies - Treatment -
Pump and treat")
Purpose and objectives of the NCP (see also
"National Contingency Plan(s)," "Scope of the NCP,"
"1985 NCP," and "NCP product schedule") 8666,
8668.8670, 8677, 8685, 8836
QAPP (see "Project plans - Quality assurance
project plan")
QA/QC (see "Quality assurance/quality control")
Quality assurance project plan (QAPP) (see "Project
plans — Quality assurance project plan")
Quality assurance/quality control (QA/QC) 8694,
8735, 8817, 8852, 8859-8860, 8862-8864
RA (see "Remedial design/remedial action -
Remedial action" and "Regional Administrator")
Radiological Assistance Teams (RATs) (see "EPA
Radiological Assistance Teams")
Radiological Plan (see "Federal Radiological
Emergency Response Plan")
Range of alternatives (see "Feasibility study -
Alternatives (remedial) - Range of)
RATs (see "EPA Radiological Assistance Teams")
RCP (see "Contingency plan(s) ~ Regional")
RCRA 8689, 8690, 8737, 8754, 8764, 8786-8797
RCRA ARARs 8667, 8743-8744, 8754, 8756, 8758-
8765, 53 FR 51443
Applicable to CERCLA actions 8689-8691,
8714, 8732, 8741, 8756, 8758-8760, 8762.
8765, 53 FR 51443
Area of contamination (AOC) 8688-8689,
8692, 8758, 8760, 53 FR 51444
- Closure 8743,8758-8760,8762,8764-
8765, 8767, 8770, 53 FR 51445
V-27
-------
RCRA ARARs (cont.)
Recoverable costs
Clean closure 8743, 53 FR 51445
Hybrid closure 8743, 53 FR 51446
Landfill closure (see also "Municipal
landfills") 8737, 8743, 8760, 53 FR
51446
Corrective action 8759-8760. 8766. 53 FR
51445
Design and operating 8758-8759, 8765, 53
FR 51445
Determination whether waste is a hazardous
waste (see "Testing - RCRA waste")
Land disposal restrictions (LDRs) 8721,
8741, 8755, 8758-8762, 8764,8819, 8849,
8851, 53 FR 51444
Best demonstrated available technology
(BOAT) requirements 8704, 8759-
8762, 53 FR 51445
Placement 8725, 8731, 8758-8760,
8767, 53 FR 51445
Presumption that BDAT is not
appropriate for contaminated soil and
debris 8721, 8741, 8760-8762
Treatability variance 8691, 8692,
8721, 8741, 8760-8762
Relevant and appropriate to CERCLA
actions 8741, 8743-8744, 8759-8763, 53
FR 51446
- Storage 8690,8755,8758,8760,8763,53
FJR 51444
- Treatment 8673,8679,8681,8688-8692,
8695, 8755, 8758, 8760, 8778, 8811-8813,
53 FR 51444
RD (see "Remedial design/remedial action -
Remedial design")
Reasonable maximum exposure scenario (see
"Remedial investigation -- Risk assessment -
Reasonable maximum exposure scenario")
Recategorizing sites (see "National Priorities List —
Recategorizing sites")
Reconnecting (see "Remedial design/remedial
action - Recontracting")
Record of Decision (ROD) (see also "Decision
document" and "Documenting the decision") 8699-
8700, 8704-8705, 8720, 8729-8732, 8735-8736,
8738-8740, 8761, 8766, 8770-8773, 8775-8776,
8778-8779, 8781-8786, 8801, 8811-8812, 8814,
8828, 8850-8856,8860-8861. S3 FR 51430
Amendment to (see also "Public
participation requirements - Amendment to
Record of Decision") 8758, 8770-8772,
8807, 8852
- Changes to 8739-8740,8747,8757-8758,
8771-8772, 8785, 8807-8808, 8852, 53 FR
51451-51452
- Contents of 8720, 8730-8732, 8757-8758,
8850-8851
Explanation of Significant Differences
(BSD) 8731, 8758, 8770-8773, 8784-8785,
8807, 8850-8852, 8861, 53 FR 51451
Fundamental alteration (see entry above
under this heading, "Amendment to")
- Notice of availability 8731,8766,8772-
8773,8852, 53 FR 51451
Responsiveness summary 8731, 8767, 8769,
8851-8852, 53 FR 51451
Records coordinator (see "Administrative record —
Records Coordinator" and "Public participation
requirements - Community Relations Coordinator")
Recoverable costs (see "Documentation and cost
recovery ~ Recoverable costs")
V-28
-------
Recovery under RCRA section 106(b)
Remedial design/remedial action
Recovery under CERCLA section 106(b) (see
"Documentation and cost recovery - Recovery under
CERCLA section 106(b)")
Reduction of 90 to 99 percent of toxicity or mobility
(see "Remedies (types of) — Treatment (or treatment
technology) - Reduction of 90 to 99 percent in
toxicity or mobility")
Reduction of toxicity, mobility, or volume through
treatment (see "CERCLA section 121 requirements
for selection of remedy" and "Feasibility study -
Nine criteria (to evaluate alternatives) — Reduction
of toxicity, mobility, or volume through treatment")
Reference doses (RfDs) 8711-8713, 8715, 8745,
8765
Regional Administrator (RA) 8698, 8782, 8819,
8844, 8854, 8856
Regional contingency plan (RCP) (see "Contingency
plan(s) - RegionaT)
Regional Response Center (RRC) 8814,8827
Regional Response Team (RRT) 8668, 8671-8674,
8676-8678, 8681-8682, 8684-8686, 8788, 8790,
8808-8809, 8814, 8819-8820, 8822, 8826-8828,
8830, 8832, 8834-8838, 8840, 8844, 8857, 8861-
8862
Regional site manager 8806
Regulatory impact analysis (RIA) 8810-8811, 53 FR
51471
Reimbursement 8681, 8697, 8702-8703, 8798-8799
Local governments (see also
"Documentation and cost recovery - Local
governments") 8799, 53 FR 51411
Section 106(b) costs (see "Documentation
and cost recovery — Recovery under
CERCLA section 106(b)")
Relationship between removal and remedial activities
(see also "Removal action(s) - Contribute to
efficient performance of the remedial action") 8817,
8828, 8843, 53 FR 51405, 53 FR 51409, 53 FR
51411
Release (see also "Threat of discharge or release"
and "Discharge of oil")
- Definition of 8817, 53 FR 51403
Size classes of release 8818
Threat of (see "Threat of discharge or
release")
Release from liability (see "Liability - Release from
liability")
Relevant and appropriate requirements (see
"Applicable or relevant and appropriate requirements
- Relevant and appropriate requirements")
Relocation 8818, 8830, 8833, 8843, 8865
Remedial design/remedial action (RD/RA) 8684,
8687, 8735-8736, 8755, 8770-8772, 8775, 8784-
8785, 8797-8799, 8852-8858, 53 FR 51453
Compliance with ARARs (see "Applicable or
relevant and appropriate requirements —
Remedial actions, compliance with ARARs
during")
Conflict of interest 8735-8736,8852-8853,
53 FR 51453
Operation and maintenance (see "Operation
and maintenance")
Public participation (see "Public
participation requirements — Remedial
design/remedial action")
Recontracting (see also "Contracting")
8853, 53 FR 51453
Remedial action (RA)
Definition of 8818
Removal action, relationship to (see
"Relationship between removal and
remedial activities")
V-29
-------
Remedial design/remedial action (cont.)
Remedial investigation/feasibility study
Remedial action objectives (see "Remedial
investigation/feasibility study - Remediation
goals")
• Remedial design (RD) 8704-8705,8739,
8747, 8758, 8771-8773, 8778, 8784-8785,
8814, 8817, 8852, 8854
Definition of 8817, 53 FR 51399
State involvement (see "State involvement")
Remedial investigation (RI) (see also "Remedial
investigation/feasibility study" and "Feasibility
study") 8684, 8694, 8700, 8702-8714, 8719, 8721,
8724, 8729-8730, 8755-8756, 8766-8768, 8801-8805,
8814-8815, 8817, 8846-8852, 8860, 53 FR 51425
Baseline risk assessment (see entry below
under this heading, "Risk assessment -
Baseline risk assessment")
- Definition of 8817, 53 FR. 51399
Preliminary remediation goals (see
"Remedial investigation/feasibility study --
Remediation goals — Preliminary")
Remedial action objectives (see "Remedial
investigation/feasibility study - Remedial
action objectives")
Remediation goals, levels, and standards
(see "Remedial investigation/feasibility
study - Remediation goals" and "Cleanup
goals, levels, and standards")
- Risk assessment 8700,8704,8708-8713,
8715-8718, 8745, 8748, 8751, 8753-8754,
8767-9769, 8775, 8801, 8803, 8805, 8830-
8831
Baseline risk assessment 8704, 8708-
8714, 8716-8718,8847-8848, 53 FR
51425
Exposure assessment 8708-8710,
8860, 53 FR 51425
Exposure assumptions 8847-8848,
8860
Exposure levels 8708, 8710, 8712,
8715, 8717-8718, 8753, 8848
Exposure pathways 8709-8710, 8712-
8713, 8715, 8717, 8719, 8726
Land use 8710
Purpose of risk assessment 8709,
8847-8848
Reasonable maximum exposure
scenario 8710, 8712-8713, 8715-8717
Toxicity assessment 8708-8711, 53 FR
51425
Sampling and analysis plan (see "Project
plans - Sampling and analysis plan")
Remedial investigation/feasibility study (RI/FS) (see
also "Remedial investigation" and "Feasibility
study") 8668-8670, 8676, 8687-8688, 8698, 8703,
8775, 8781-8784, 8790, 8797-8798, 8801, 8803,
8805, 8828, 8845-8848, 8850-8851, 8854-8856,
8858-8860, 53 FR 51422
Conceptual site model 8707-8708, 8847
Data quality objectives (DQOs) 8708,
8766, 8817, 8843, 8845, 8847
Program expectations 8669, 8677, 8700-
8707, 8713-8714, 8720-8725, 8734-8735,
8831, 8835, 8844, 8846-8847, 8849, 8854-
8855, 8862
- Program goal 8669,8696,8700-8702,
8704-8707, 8711-8716, 8718-8719, 8721,
8724-8670, 8727, 8729, 8731-8734, 8738-
8741, 8744-8746, 8750-8756, 8764, 8772,
8774, 8776, 8783, 8793, 8798, 8810, 8812
Program management principles 8722, 53
FR. 51423
Bias for action 8702-8707, 8722, 8846
Streamlining 8702-8707,8713-8715,
8725
V-30
-------
Remedial investigation/feasibility study (coot)
Remedies (types of)
Project plans (see "Project plans")
Remedial action objectives 8712-8713,
8735, 8738-8740,8747, 8753-8754, 8756,
8766-8769, 8773,8848, 53 FR. 51425
- Remediation goals 8709-8711,8721,8727.
8733-8734, 8738-8740.8744-8745, 8753,
8755, 8766. 8769. 8772.8791. 8812. 8852-
8853
Final 8718
Preliminary 8707,8709, 8712-8718,
8723-8724, 8729,8732, 8745
Remediation levels 8705, 8718
RIIFS workplan (sec "Project plans - RIIFS
workplan")
- Scoping 8704-8708,8712,8714,8731,
8733, 8744, 8747, 8766, 8774-8775, 8797,
8805,8846-8847, 53 FR 51424
Site management planning 8702, 8706,
8815, 8827-8828, 8853-8858, 8860-8861
Treatability testing (see "Testing -
Treatability testing")
Remedial Preliminary Assessment (PA) (see
"Preliminary Assessment - Remedial PA")
Remedial priorities (see also "National Priorities List
- Establishing remedial priorities") 8687, 8698,
8774, 8780. 8845
Remedial Project Manager (RPM) (see also "Special
teams and other assistance available to
OSCs/RPMs") 8668-8669,8677-8682, 8684, 8697,
8757, 8787-8788,8814-8817,8819-8820, 8826-8828,
8830-8831, 8834-8835, 8844, 53 FR 51401
- Definition of 8828, 53 FR 51398
General responsibilities 8671-8675.8789-
8792,8820, 8827-8830
Remedial response 8698,8740, 8771, 8776, 8779,
8782,8816-8817,8819, 8840,8845, 8847,8853-
8856
Remedial site evaluation (see "Site evaluation -
Remedial")
Remediation goals or levels (see "Remedial
investigation/feasibility study - Remediation goals")
Remedies (types of) 8700-8741, 8743-8750, 8752-
8758, 8761-8762, 8766, 8768-8773. 8775-8780,
8782-8786. 8793. 8797-8798, 8800-8804, 8807,
8810,8813, 8816-8818, 8827,8841, 8845-8848,
8850-8856, 8858,8865
- Containment 8684,8687,8701-8703,8706,
8708-8723, 8727,8731-8738. 8809-8812.
8830,8833-8835, 8840, 8843,8846,8849,
8865, 53 FR 51427
Definition of remedy or remedial action
8818
Engineering controls 8846,8848-8849,
8852, 53 FR 51423
Innovative technologies (see entry below
under this heading, 'Treatment —
Innovative")
Institutional controls (see also "State -
Assurances - Institutional controls") 8701-
8703, 8706-8707, 8709-8711, 8714, 8717,
8720, 8722, 8732, 8734, 8740. 8753-8754,
8778-8779, 8846,8849, 8853-8856, 53 FR
51423, 53 FR 51440
Access restrictions (see "Access" and
"Entry and access")
Interim (see also "Applicable or relevant
and appropriate requirements — Waivers ~
Interim measures" and "Operation and
maintenance - Temporary or interim
measures") 8703-8707, 8720, 8722, 8732,
8738-8739, 8747-8748, 8763
- Source control 8671,8712,8732,8736-
8740,8853. 53 FR 51454
V-31
-------
Remedies (types of) (cont)
Removal action(s)
Action or measures 8711, 8721, 8738-
8739, 8747-8748, 8763, 8818
Definition of 8818, 53 FR. 51399
Maintenance measures (see also
"Operation and maintenance - Ground
water restoration methods" and
"State - Assurances — Operation and
maintenance") 8711, 8735-8740, 8788,
8818
Definition of 8818
Treatment (or treatment technology) 8688-
8691, 8695, 8700-8703, 8708, 8714, 8716,
8717, 8719-8721, 8724-8727, 8729, 8731-
8732, 8736-8741, 8749-8765, 8772, 8801,
8804, 8811, 8816-8819, 8830, 8840, 8849-
8855, 8865
Alternative 8668, 701, 8708, 8711-
8715, 8719-8720, 8724-8727, 8729,
8751,8793, 8811, FR 51427
Bioremediation 8715, 8721-8722,
8726, 8749
Definition of 53 FR 51400
Incineration 8691, 8721, 8726, 8728,
8749, 8755, 8761, 8764, 8818, 8843,
8865
Innovative 8669, 8701-8702, 8712,
8714-8715, 8721-8722, 8748, 8772,
8846, 8848
Limitations on use of treatment 8729,
8735
Preference for 8667, 8700, 8719-
8721,8809,8811
Program goal or expectations (see
"Remedial investigation/feasibility
study - Program goal" and "Remedial
investigation/feasibility study -
Program expectations")
Pump and treat 8705, 8708, 8720,
8734, 8757, 8772
Reduction of 90 to 99 percent in
toxicity or mobility 8701, 8721, 8732
Residuals 8703, 8720, 8722, 8727-
8728, 8759, 8846, 8848-8849
Resource recovery 8668, 8700, 8719-
8720, 8724, 8726, 8728-8729, 8731,
8751, 8793, 8850, 8852
Soil washing 8715
Solidification 8721
Stabilization 8695-8696, 8698, 8701,
8704, 8722, 8739, 8761, 8806
Thermal destruction (see also entry
above under this heading,
"Incineration") 8721, 8772
Thermal oxidation 8865
Treatability variance (see "RCRA
ARARs — Land disposal restrictions —
Treatability variance")
Treatment trains 8701, 8721
Remedy, selection of (see "Selection of remedy" and
"Public participation requirements ~ RIIFS and
selection of remedy")
Removal action(s) 8677, 8682-8683, 8687-8689,
8693-8694, 8696-8698, 8703-8704, 8707-8708, 8715,
8737,8740-8741, 8744-8745, 8747, 8755-8756,
8760, 8764, 8766-8767, 8770, 8772-8773, 8775,
8777-8779, 8796-8802, 8805-8807,8813, 8816-8817,
8827-8830, 8834-8835, 8837-8840, 8842-8846,8849,
8853-8854, 8857-8858, 8860-8861, 8865, 53 FR
51404, 53 FR 51409
Action memorandum 8859, 53 FR 51469
Actions under CERCLA section 106 (see
also "Documentation and cost recovery —
Recovery under CERCLA section 106(b)")
8668, 8726, 8843, 8859
V-32
-------
Removal action(s) (cont.)
Removal action(s) (cont.)
Administrative record (see "Administrative
record — Removal action")
Applicable or relevant and appropriate
requirements 8694-8696, 8707, 8741, 8747,
8756, 8797, 8814, 8857
Compliance with ARARs during
removals to the extent practicable
8843, 8858
Scope of the removal action 8694-
8696,8843, 53 FR 51411
Urgencies of the situation 8694-8696,
8704, 8741, 8756, 8796, 8843, 53 FR
51411
Waivers (see "Applicable or relevant
and appropriate requirements -
Waivers - Removal actions")
Appropriateness of removal action 8704,
8706, 8715, 8842-8844, 8860
ARARs (see entry above under this heading,
"Applicable or relevant and appropriate
requirements")
Community relations (see "Public
participation requirements ~ Removal
actions"')
Compliance with other laws (see entry
above under this heading, "Applicable or
relevant and appropriate requirements")
Consistency exemption (see entry below
under this heading, "Exemptions from
statutory limits — Consistency exemption")
Contribute to the efficient performance of
the remedial action (see also "Relationship
between removal and remedial activities")
8667, 8694, 8704, 8843, 53 FR 51409
Definition of remove/removal 8818
Emergency removal 8694, 8697-8698,
8801, 8803, 8806-8807, 8833-8834, 8839-
8840,8844, 53 FR 51409
Emergency exemption (see entry below
under this heading, "Exemptions from
statutory limits — Emergency exemption")
Engineering Evaluation/Cost Analysis
(EE/CA) 8795-8796, 8806-8807, 8843-
8844, 8861, 53 FR 51410
Exemptions from statutory limits (see also
entry below under this heading, "Statutory
limits") 8667, 8669, 8694, 8696, 8704, 53
FR 51409
Consistency exemption 8667, 8694
Emergency exemption 8667
Goals 8696,8722
Non-time-critical 8669, 8694, 8696-8698,
8740, 8770, 8805-8807, 8860-8861, FR
51409
NPL sites, removal actions at 8682, 8704,
8843, 8845, 8857
Off-site policy 53 FR 51410
On-scene coordinator (see also "On-scene
coordinator") 8828-8829, 8832, 8835,
8837-8839, 8844
Planning period 8843-8844, 8860
Post-removal site control 8668, 8671,
8697-8698, 8817-8818, 8843-8844, 8852-
8857,8865, 53 FR 51410
Definition of 8817
Site characterization 8697-8698,
8702-8704, 8708
Preliminary assessment (PA) (see
"Preliminary assessment - Removal PA")
Public participation (see "Public
participation requirements -- Removal
actions")
V-33
-------
Removal action(s) (cont)
Response operations
Remedial action, relationship to (see
"Relationship between removal and remedial
activities")
Sampling and analysis plan (see "Project
plans - Sampling and analysis plan")
Scope of the removal action (see entry
above under this heading, "Applicable or
relevant and appropriate requirements —
Scope of the removal action")
Site inspection (see "Site inspection")
State involvement (see "State involvement")
Statutory exemption (see entry above under
this heading, "Exemptions from statutory
limits")
Statutory limits (see also entry above under
this heading, "Exemptions from statutory
limits") 8694, 8696, 8703-8704, 8756,
8806,8843, 53 FR 51409, 53 FR. 51411
Federal facility sites 8731
Time and dollar limits 8667, 8694,
8696, 8703-8704, 53 FK 51409
- Time-critical 8693-8697,8767,8770,8806-
8807, 8860-8861, 53 FR 51409
- "Trigger" levels 53 FR 51411
Types of removal activities 8703-8704,
8708
Waivers from ARARs (see "Applicable or
relevant and appropriate requirements --
Waivers — Removal actions")
Removal site evaluation (see "Site evaluation --
Removal")
Remove (see "Removal action(s)")
Reportable quantity (RQ) 8667, 8675-8677, 8686,
8741, 8795, 8829,8841
Reporting and investigation 8667, 8675-8676, 8682-
8683, 8685-8687, 8693, 53 FR 51394
Reporting and recordkeeping 8667, 8675-8676,
8683, 8686, 8693, 8704, 8756-8757, 8795, 8813,
8818,8826-8830,8835-8838
Administrative requirements (see
"Applicable or relevant and appropriate
requirements - Substantive versus
administrative requirements")
Component of operation and maintenance
(see "Operation and maintenance -
Reporting and recordkeeping")
Research and Special Programs Administration
(RSPA) 8814,8835
Resolution of disputes (see "Disputes - Resolution
of)
Resource Conservation and Recovery Act (see
"RCRA")
Respond (definition of) 8818
Response action
Definition of 8818
Determination to initiate (see "Initiation of
action")
Limitations on 8668, 8672, 8695-8696,
8698, 8717, 8734, 8739, 8839, 8842, 53 FR
51405
Drinking water supplies 8840
Naturally occurring substances 8706,
8734, 8753, 8756, 8840
Part of structures 8840
- Multi-regional 8678,8830
- Pre-remedial 8819,8853-8855
Response operations 8671, 8677, 8684, 8826-8827,
8829-8830, 8835, 53 FR 51402
V-34
-------
Responsible parties
Sinking agents
Responsible parties (see "Potentially responsible
party(ies)")
Responsibilities of trustees (see "Trustees for natural
resources — Responsibilities")
Responsiveness summary (see "Record of Decision -
- Responsiveness summary")
RI (see "Remedial investigation")
RIA (see "Regulatory Impact Analysis")
Ripeness 8798
Risk assessment (see "Remedial investigation -- Risk
assessment")
Risk range (see also "Additive risk or additivity" and
"Multiple contaminants or pathways") 8715-8718,
8745,8848, 53 FR 51426
Acceptable risk range 8669, 8713, 8715-
8718, 8727, 8729, 8750-8753, 8758, 8811-
8812
Point of departure 8669,8701,8713,8715-
8719, 8729
ROD (see "Record of Decision")
RP (see "Potentially responsible party(ies)")
RPM (see "Remedial Project Manager")
RQ (see "Reportable quantity")
RRC (see "Regional Response Center")
RRT (see "Regional Response Team")
RSPA (see "Research and Special Programs
Administration")
SAC (see "Support Agency Coordinator")
Sampling and analysis plan (see "Project plans -
Sampling and analysis plan")
SARA (see "Superfund Amendments and
Reauthorization Act of 1986" and "Title III")
Scientific Support Coordinator (SSC) 8678-8679,
8684, 8809, 8814, 8830-8831, 8835
Scope of the NCP (see also "National Contingency
Plan(s)") 8669-8670, 8746, 8759, 8772,8814, 8836,
8840, 8850-8853, 8864
Scoping (see "Remedial investigation/feasibility
study - Scoping")
Screening of alternatives (see "Feasibility study -
Alternatives — Screening of")
Selection of remedy 8677, 8670, 8687, 8700, 8706,
8716, 8720, 8723-8724, 8727, 8731, 8766, 8768-
8769, 8775, 8778, 8782-8784, 8797-8798, 8801-
8802, 8805, 8811-8812, 8816-8817, 8846-8848,
8850-8852, 8854-8856, 8858, 8860, 8865, 53 FR
51422-51423, 53 FR 51429, 53 FR 51457
Nine criteria (see "Feasibility study — Nine
criteria (functional categories)")
Public participation requirements (see
"Public participation requirements — RI/FS
and selection of remedy")
State involvement (see "State — Selection of
remedy")
Statutory mandates for (see "CERCLA
section 121 requirements for selection of
remedy")
Settlements (see "Potentially responsible party(ies) -
Settlements")
Short-term effectiveness (see "Feasibility study —
Nine criteria (to evaluate alternatives) — Short-term
effectiveness")
SI (see "Site inspection")
Significant change or difference (see "Record of
decision - Explanation of Significant Differences"
and "Public participation requirements - Explanation
of Significant Differences")
Sinking agents 8687, 8808, 8816, 8818, 8838, 8862
V-35
-------
Site characterization
State
Site characterization 8702-8704, 8708-8709, 8747,
8763, 8776, 8817, 8835, 8841, 8845, 8847-8848,
8856
Site control (see "Removal action(s) - Post-removal
site control — Site characterization")
Site evaluation 53 FR 51404, 53 FR 51413
- Remedial 8669,8687,8693-8694,8775,
8797,8842, 8844,8858, 53 FR 51411
- Removal 8669,8687,8693,8797,8806,
8842, 8844-8845, 8858, 8860, 53 FR
51408-51409
Site inspection (SI) (see also "Response action ~
Pre-remedial," "Preliminary assessment," and
"Preliminary assessment/site inspection") 8668,
8676,8694, 8767, 87%, 8814, 8842, 8844-8845,
8847, 8854-8855,8860, 53 FR 51413
- Definition of 8818, 53 FR 51399
Removal SI 8842
- Remedial SI 8694,8844-8845
Site investigation 8668, 8693-8694, 8705, 8744,
8805,8818
Site management planning (see "Remedial
investigation/feasibility study — Site management
planning")
SITE program (see "Superfund Innovative
Technology Evaluation program")
Siting laws 8741,8814, 8817, 8843, 8848-8850, 53
FR51459
Size classes of discharges (see "Discharge of oil -
Size classes of discharge")
Size classes of releases (see "Release -- Size classes
of release")
SMOA (see "State - Superfund Memorandum of
Agreement")
Soil and debris (see "RCRA ARARs - Land
disposal restrictions")
Soil washing (see "Remedies - Treatment (or
treatment technology) - Soil washing")
Solidification (see "Remedies - Treatment (or
treatment technology) — Solidification")
Source control (see "Remedies - Source control")
Special notice and moratoria (see "Potentially
responsible party(ies) - Special notice and
moratoria")
Special teams and other assistance available to
OSCs/RPMs (see also "Remedial Project Manager"
and "On-scene coordinator") 8671, 8678,8830, 53
FR 51402
Specified ports and harbors 8815-8816, 8818
Definition of 8818
SSC (see "Scientific Support Coordinator" or
"Superfund state contract")
Stabilization (see "Remedies — Treatment —
Stabilization")
Standard of liability (see "Liability — Standard of
liability")
Standing team 8826
State 8667, 8670, 8673-8674, 8679-8682, 8685-
8687, 8689-8690, 8712-8716, 8718, 8750, 8753-
8758, 8760-8761, 8763-8766, 8769-8782, 8785-8786,
8816-8817, 8819, 8826-8828, 8831-8862
Administrative record (see "Administrative
record - State-lead site")
Agreements with states (see also entries
below under this heading, "Cooperative
agreement." "Superfund Memorandum of
Agreement," and "Superfund state contract")
8668, 8670-8671, 8674, 8677, 8683-8688,
8696,8697, 8771, 8773, 8814, 8819, 8828-
8829,8833,8853-8856
V-36
-------
State (cont)
State (cont)
Annual consultations with EPA 8691, 8697,
8854-8856
ARARs (see "Applicable or relevant and
appropriate requirements - State ARARs")
Assurances 8670, 8680, 8696, 8706, 8736-
8740. 8775-8779, 8782-8784, 8793, 8798,
8802,8819, 8831-8832, 8843, 8845, 8847,
8854-8857,8859-8860, S3 FR S14SS
Acquisition of real property 8670,
8736, 8778-8779, 53 FR 51456
Cost-share (see also "Operation and
maintenance ~ Cost-share") 8696,
8736-8740, 8775, 8777-8778, 8784,
8843, 8854, 8857, 8855, 8875, 8878
Institutional controls (see also
"Remedies - Institutional controls")
8740, 8753-8754, 8846, 8848-8849,
8853-8855
Off-site facility compliance (see also
"Off-site") 8854-8855, 53 FR 51456
Operation and maintenance (see also
"Operation and maintenance") 8706,
8739, 8777-8778, 8854-8855, 53 FR
51456
20-year capacity 8741, 8777-8779,
8854-8855, 53 FR 51456
Concurrence (see also "Concurrence")
87818786, 8808-8810, 8855-8857, 8861-
8862, 53 FR 51457-51458
Cooperative agreement (see also entry
above under this heading, "Agreements with
states") 8668, 8671, 8674, 8677, 8683,
8684, 8687, 8688, 8696-8698, 8740, 8756,
8771-8773, 8775-8777, 8779-8781, 8785,
8814-8816,8828-8829,8833-8836,8838,
8840, 8843, 8853-8857
Definition of 8815, 53 FR. 51399
Cost-share (see entry above under this
heading, "Assurances")
Credit (against cost-share) 8779-8780,
8783, 8854-8855
Deferral policies (see "Deferral policies")
Definition of 8819, 53 FR 51398, 53 FR
51400
Dual enforcement standards (see
"Enforcement - Dual enforcement
standards")
Enforcement (see "Enforcement")
Enhancement of remedy 8670, 8783-8785,
8856
Federal facilities and states 8667, 8676,
8683-8684, 8687-8688
Inconsistent application of state
requirements waiver (see "Applicable or
relevant and appropriate requirements -
Waivers — Inconsistent application of state
requirements")
Joint inspection with EPA 8699, 8739,
8785, 8856
Lead agency, state as 8669-8670, 8680,
8684, 8688, 8694, 8696-8698, 8756, 8776,
8787, 8816, 8819, 8827, 8831, 8835, 8853-
8854
Notification of negotiations with PRPs (see
"Potentially responsible party(ies) —
Negotiations with PRPs")
NPL process (listing and deletion) 8667,
8670, 8680, 8693, 8699-8700, 8780-8781,
8845,8854-8855, 53 FR 51456
Preliminary assessment/site inspection
8668, 8670, 8767, 8780-8781, 8819, 8828,
88544855
Proposed plan 8850-8851,8854-8856
Remedial design/remedial action 8668,
8670, 8672, 8683-8684, 8696, 8698, 8739,
V-37
-------
State (cont.)
Substantial compliance
8771, 8782-8785, 8819, 8828, 8850, 8853-
8856
Remedial investigation/feasibility study
8668, 8670, 8684, 8776, 8779,8819, 8828,
8853-8855
Removal actions 8671-8672, 8677, 8683,
8695-8698, 8777, 8856-8857, 8819, 8828,
8839, 8843, 8853-8854, 8857, 53 FR 51455
Review of documents 8669,8673,8681-
8682, 8700, 8780-8781, 8853-8857
Selection of remedy 8668-8669, 8687,
8691, 8766, 8768-8769, 8782-8783, 8814,
8828,8853-8856, 53 FR 51456-51457
Siting laws (see "Siting laws")
State acceptance (see "Feasibility study ~
Nine criteria (to evaluate alternatives) —
State acceptance")
State-lead sites 8684, 8688, 8694, 8696-
8700
Remedial 8827-8828, 8853-8854
Removal 8827-8828, 8853, 8857, 53
FR 51410
Superfund Memorandum of Agreement
(SMOA) (see also entry above under this
heading, "Agreements with states") 8669,
8671, 8696-8698, 8739, 8747, 8756, 8773,
8776-8777, 8779-8783, 8785-8786, 53 FR
51454
Definition of 8819, 53 FR 51398
Requirements in absence of 53 FR
51457, 53 FR 51459
Superfund state contract (SSC) (see also
entry above under this heading,
"Agreements with states") 8671, 8674,
8683, 8688, 8696-8697, 8736, 8771, 8773,
8775-8777, 8780-8781, 8785, 8819, 8829,
8836, 8840
Definition of 8819, 53 FR. 51398
State and local participation in response (see also
"Local governments") 8666, 8668-8675, 8677, 8679-
8681, 8683-8684, 8686-8698, 8738, 8775, 8785-
8786, 8795, 8814, 8819, 8826-8829, 8832, 8835,
8838-8839
State and public participation 53 FR 51395
State ARARs (see "Applicable or relevant and
appropriate requirements - State ARARs")
State assurances (see "State ~ Assurances")
State contract (see "State - Superfund state
contract")
State Emergency Response Commission (SERC)
8671-8673, 8677, 8682, 8684-8686, 8693, 8814,
8827, 8836-8837, 8842
State involvement 8671, 8673, 8677, 8687, 86%,
8697, 8698, 8723, 8739, 8756-8757, 8771, 8775-
8780, 8782-8786, 8819, 8839, 8843, 8853-8857, 53
FR 51454, 53 FR 51456, 53 FR 51459
State-lead (see "State ~ State-lead sites")
State trustees (see "Trustees for natural resources —
State")
Statutory exemptions (see "Removal action(s) -
Exemptions from statutory limits")
Statutory limits (see "Removal action(s) ~ Statutory
limits")
Statutory overview 8667-8668, 53 FR 51394
Streamlining (see "Remedial investigation/feasibility
study - Program management principles ~
Streamlining")
Strike Teams (see "National Strike Force")
Subpart K (see "Federal facility(ies) ~ Subpart K")
Substantial compliance (see "Consistent with the
NCP - Substantial compliance")
V-38
-------
Substantive versus administrative requirements
Time
Substantive versus administrative requirements (see
"Applicable or relevant and appropriate requirements
- Substantive versus administrative requirements")
Superfund Amendments and Reauthorizab'on Act of
1986 (definition of) (see also Title HP and
"Extremely hazardous substance") 8818, 53 FR
51400
Superfund enforcement program strategy (see
"Enforcement - EPA strategy on enforcement")
Superfund Innovative Technology Evaluation (SITE)
program 8721
Superfund Memorandum of Agreement (SMOA) (see
"State - Superfund Memorandum of Agreement")
Superfund state contract (see "State - Superfund
state contract")
Support agency 8677, 8704, 8706-8707, 8723-8724,
8730-8732, 8744-8747, 8769, 8771-8773, 8779-8782,
8784, 8795-8796, 8800-8801, 8814, 8816,8819,
8828, 8830, 8841, 8846, 8848-8849, 8850-8856, 53
FR 51394-51402, 53 FR 51405-51406, 53 FR
51412-51414, 53 FR 51417, 53 FR 51436, 53 FR
51450, 53 FR 51455, 53 FR 51460, 53 FR 51464-
51467, 53 FR 51471-51472
Definition of 8819
Support Agency Coordinator (SAC) 8.675, 8677,
8814, 8819, 8828, 8835
Definition of 8819
Surface collecting agents 8808-8809, 8816, 8819,
8861-8865
Definition of 8819
Synergy or synergistic effect (see "Additive risk or
additivity")
Systemic toxicants (see "Noncarcinogens")
TAGs (see "Public participation requirements --
Technical Assistance Grants")
TAT (see "Technical Assistance Team")
TBC(s) (see To-be-considereds")
Technical Assistance Grants (TAGs) (see "Public
participation requirements - Technical Assistance
Grants")
Technical Assistance Team (TAT) 8678, 8697
Technical impracticability waiver (see "Applicable or
relevant and appropriate requirements — Waivers -
Technical impracticability")
Technology (see "Remedies (types of) — Treatment
(or treatment technology)")
Ten year cost-share (see "State - Assurances -
Cost-share")
Testing
- RCRA waste 8709,8743,8758,8762-8763
- Treatability testing 8669,8691-8692,8721,
53 FR 51407-51408 (see also "On-site »
Permit exemption")
Thermal destruction (see "Remedies (types of) -
Treatment (or treatment technology) - Thermal
destruction")
Threat of discharge or release (see also "Discharge
of oil" and "Release") 8675-8677, 8687, 8690,
8695, 8698, 8707-8708, 8815, 8817-8819, 8829,
8840, 8842, 8844, 8860
Threats 8667, 8676-8677, 8686-8687, 8690-8691,
8693, 8695-86%, 8698, 8701, 8703-8704. 8707-
8711, 8716, 8720, 8723, 8733, 8749, 8756, 8774,
8787-8789, 8806, 8808-8809
- Principal 8701-8703.8706-8707,8720-
8721, 53 FR 51427
Threshold, balancing, and modifying criteria (see
"Feasibility study — Nine criteria (functional
categories)")
Threshold planning quantities (TPQs) (see "Tide
III — Threshold planning quantities")
Time (see "Computation of time")
V-39
-------
Time and dollar limits
Treatment trains
Time and dollar limits (see "Removal action(s) —
Statutory limits — Time and dollar limits")
Time-critical removal actions (see "Removal
action(s) - Time-critical")
Timely identification of state ARARs (see
"Applicable or relevant and appropriate requirements
— State ARARs — Identified in timely manner")
Timeliness of notice 8682, 8788, 8837, 8841
Timely manner (see "Applicable or relevant and
appropriate requirements - State ARARs -- Identified
in timely manner")
Title III (see also "Superfund Amendments and
Reauthorization Act of 1986" and "Extremely
hazardous substance") 8667. 8672, 8684-8686,
8693, 8818, 8836-8837, 8842, 53 FR 51401, 53 FR
51403
Indian tribes (see "Indian tribe -
Involvement during response")
Local emergency response plans (see "Local
emergency response plans")
Material safety data sheet (MSDS) 8684,
8837
Reporting requirements 8667, 8675-8676,
8683, 8685-8686, 8693, 8756, 8814, 8836-
8837, 8842
Threshold planning quantities (TPQs) 8836
To-be-considereds (TBCs) (see also "Applicable or
relevant and appropriate requirements — Examples of
potential ARARs and TBCs") 8680, 8694-8696,
8707, 8711-8713, 8715, 8719-8720, 8722, 8725,
8728, 8741-8747, 8749, 8751, 8760, 8764-8765,
8776-8778, 8781-8782, 8792, 8796, 8799, 8811,
8841, 8847, 8849, 8854-8856, 53 FR 51435-51436,
53 FR 51440
Local government requirements 8798
Toxicity (see "Feasibility study — Nine criteria (to
evaluate alternatives) - Reduction oftoxicity.
mobility, or volume through treatment")
Toxicity assessment (see "Remedial investigation —
Risk assessment — Toxicity assessment")
Toxicological information 8709, 8711-8715, 8745,
8836
Toxicological profiles 53 FR 51402
TPQs (see "Title m - Threshold planning
quantities")
Transfer of Superfund waste 8690-8691
Off-site (see "Off-site ~ Requirements for
off-site transfer")
- Out-of-state 8670,8740-8741
Transcript (see "Public participation requirements —
Public comment period — Public meeting —
Transcript required")
Transport quantification 8708
Transportation/transport 8688, 8690, 8708-8709,
8722, 8725, 8765, 8778, 8814, 8818-8819, 8830,
8834-8836, 8840
Treatability study(ies) 8708, 8714, 8756, 8846-8847
Treatability testing (see "Testing ~ Treatability
testing")
Treatability variance (see "RCRA ARARs - Land
disposal restrictions — Treatability variances")
Treatment or treatment technology (see "Remedies
(types of) ~ Treatment (or treatment technology)")
Treatment to the maximum extent practicable (see
"CERCLA section 121 requirements for selection of
remedy — Permanent solutions and treatment to the
maximum extent practicable")
Treatment, storage, and disposal facility (see "RCRA
ARARs - Storage" and "RCRA ARARs ~
Treatment")
Treatment trains (see "Remedies — Treatment -
Treatment trains")
V-40
-------
Trustees for natural resources
Wastes
Trustees for natural resources (see also "Natural
resources") 8685, 8687, 8708, 8786-8792, 8795,
8809-8810, 8814, 8861-8862, 53 FR 51459-51460
Communication of information to 8681,
8683, 8707, 8790, 8795, 8838, 8858
Concurrent jurisdiction 8787-8789,8857
- Definition of 8819, 53 FR 51399
- Designation of 8670, 8707-8708, 8786-
8789, 8857
- Federal 8681-8683,8687,8694,8786-
8791, 8847, 8857
- Indian tribe 8670, 8786-8790, 8857, 53 FR
51399, 53 FR 51460
Lead trustee 8789-8790
- Multiple trustees 8669,8715,8789,8792,
8857
- Notification of 8669, 8678, 8682-8683,
8694, 8707-8708, 8786. 8788, 8790-8792,
8830, 8838, 8842, 8847, 8857, 53 FR. 51408
- Responsibilities 8670,8682,8707,8787-
8790, 8857, 8858, 53 FR 51460
- State 8682-8683,8687,8694,8786-8792,
8847, 8857
Trust Fund (see "Fund")
TSDF (see "RCRA ARARs - Storage" and "RCRA
ARARs - Treatment")
USDA (see "Department of Agriculture")
United States (definition of) 8819
United States Coast Guard (USCG) 8672-8678,
8683, 8686-8687, 8693, 8775, 8802, 8814-8816,
8818-8819, 8824, 8826, 8828-8831, 8833, 8835-
8839,8841, 8859
United States Coast Guard Districts map
8825
Urgencies of the situation (see "Removal action(s) -
Applicable or relevant and appropriate requirements
- Urgencies of the situation")
USCG (see "United States Coast Guard")
Variances 8741,8744,8761-8762,8841
Treatability variance (see "RCRA ARARs -
- Land disposal restrictions - Treatability
variance'')
National capacity variance (see "State -
Assurances — 20-year capacity")
Vessel 8667, 8678, 8788, 8795, 8815-8817,8819,
8828-8830, 8835, 8837, 8839-8842, 8857
- Definition of 8819, 53 FR 51400
Volunteer 8671, 8684, 8687, 8819, 8835
Definition of 8819
Volume (see "Feasibility study ~ Nine criteria (to
evaluate alternatives) -- Reduction of toxicity,
mobility, or volume through treatment")
Waivers (see "Applicable or relevant and appropriate
requirements — Waivers")
Wastes (see also "RCRA ARARs")
Characteristic waste 8762
- Hazardous waste 8666,8668,8674,8676-
8677, 8679-8680, 8688, 8691-8692, 8703,
8720, 8725, 8743, 8756, 8758-8760, 8762-
8765, 8788, 8798
Investigation-derived waste 8755-8756, 53
FR. 51442
Listed waste 8758, 8763
Mining waste 8763-8764
- Solid waste 8688-8699,8714,8764-8765,
8811
-------
Water quality criteria Workplan
Water quality criteria (WQC) (see also "Applicable
or relevant and appropriate requirements — Federal
water quality criteria") 8670, 8695, 8712-8713,
8716, 8718, 8848
Wildlife conservation 8683,8687
Worker health and safety (see also "Occupational
Safety and Health Act") 8679-8680, 8702, 8707,
8710-8711, 8722, 8797, 8830-8891, 8835,8858. S3
FR 51402
Workplan (see "Project plans - RIIFS workplan")
V-42 * U.S. G.P.O.:1992-311-893:60669
------- |