UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
JUN t 2 1989
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MEMORANDUM
Directive 9360.0-12A
SUBJECT: Final Guidance on Implementation of the "Consistency" Exemption
to the Statutory Limits on.Removal Actions
FROM
TO:
Jonathan Z. Cann
tctlng Assistant AdminIstrat^
Director, Waste Management Division
Regions I. IV, V, VII, VIII
Director, Hazardous Waste Management Division
Regions III, VI
Director, Emergency and Remedial Response Division
Region II
Director, Toxic and Waste Management Division
Region IX
Director, Hazardous Waste Division, Region X
Superfund Branch Chiefs, Regions I-X
Oil and Hazardous Materials Coordinators, Regions I-X
The purpose of this memorandum 1s to transmit final guidance on use of
the exemption from the statutory limits on removals for actions that are
otherwise appropriate and consistent with the remedial action to be taken.
Background;
On April 6, 1987, Interim final guidance was Issued on Implementation of
the revised statutory limits on removal actions which discussed procedures for
using the new exemption contained 1n the Superfund Amendments and Reauthoriza-
tlon Act of 1986 (SARA). This exemption allows removals to exceed the
statutory tin and money limits of one year and $2 million where necessary to
achieve consistency with the remedial action to be taken. This guidance Is
final and supersedes the Interim final version of April 1987.
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OSWER Directive 9360.0-12A
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Objective;
The final guidance elaborates on the approach adopted In the proposed
National Contingency Plan. Except In limited circumstances, use of the
exemption from the statutory limits will be restricted to sites on the
National Priorities List. Justification for use of the exemption will require
that the removal action be "consistent" with the remedial action as defined in
the guidance, and fall Into at least one of .the four categories of activities
that are listed as "appropriate." Included with the guidance is a sample
action memorandum demonstrating proper documentation of the justification.
Implementation;
1.0 Introduction
Section 104(e) of the Superfund Amendments and Reauthorization Act of 1986
(SARA) amends section 104(c) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA) to raise the statutory limits
on removal actions and establish a new exemption from those limits. Under
SARA, the limits on removals Increase from $1 million and six months to $2
million and 12 months.
The new exemption may be used if "continued response action 1s otherwise
appropriate and consistent with the remedial action to be taken." It applies
to any Fund-financed removal and thus encompasses State-lead as well as EPA-
lead responses. Actions where the Agency 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.
Regional Administrators (RAsJ are authorized to approve requests for
exemption from the 12-month limit. The Assistant Administrator (AA), Office of
Solid Waste and Emergency Response (OSWER) retains authority to approve
requests for exemption from the $2 million limit, but may delegate that
authority to RAs on a case-by-case basis.
2.0 Purpose of tlM Ettaptlon
The 'consistency* exemption in CERCLA 104(c) supports the new provision in
CERCLA 104(a)(2) requiring removal actions to "contribute to the efficient
performance of any long-term remedial action" (see OSWER Directive 9360.0-
13). Together, the new CERCLA 104(a) provision and the "consistency" exemption
1n 104(c) art Intended to promote and enhance efficiency and continuity in the
Superfund program as a whole.
The 104(a) provision does this by ensuring that the removal program
attempts to anticipate remedial action that will be needed and avoids taking
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OSWER Directive 9360.0-12A
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response actions that will Impede the remedial action or result in wasteful
restarts. The "consistency" exemption promotes efficiency by allowing removals
to exceed the statutory limits for time and cost when to do so will result in
lower overall cleanup cost as well as enhanced protection of public health and
the environment.
3.0 Application of the "Consistency" Exertion
3.1 Criteria for Eligible Activities
As stated above, removal actions should take into account efficiency of
the Superfund program as a whole. If there is no efficiency to be gained from
continuing a removal action beyond the statutory limits, then the "consistency"
exemption should not be used. In addition, in order to show that a proposed
removal Is "appropriate and consistent with the remedial action to be taken" it
must be shown to meet the criteria for consistency in (a) and for appropriate-
ness in (b) below:
(a) Consistency; At a minimum, the removal does not foreclose the remedial
action.
This criterion 1s necessary to ensure that planned or expected remedies
are not precluded by the removal. The "remedial action to be taken" is the
remedial action that, prior to the start of the removal action, was planned or
could reasonably have been expected to be taken. Certainly, the actual
performance of the activities that are part of a planned or expected remedial
action are consistent with that action. It may turn out that after a removal
done under a "consistency" exemption, the Agency will decide not to take any
further response action.
(b) Appropriateness; The activity Is necessary for any one of the four
following reasons:
I. To avoid a foreseeable threat.
s.
This is an action that permanently abates a threat, as opposed to a
temporary measure that, of necessity, will have to be repeated periodically,
until the permanent remedy 1s performed.
2. To prevent further Migration of contaminants.
f an action taken to minimize the scope of the cleanup and the
potent tiff for, harm to human health and the environment.
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3. To use an alternative to land disposal.! t
This criterion recognizes that procurement of alternative technology is
more time-consuming and expensive than that of land disposal. CERCLA expresses
preference for alternative technologies over land disposal.
4. To co-ply with the Off-site Policy.
This criterion recognizes that the standards required of facilities at
which Superfund wastes may be disposed of may limit the number of available
facilities. This In turn may cause delay in, or Increase the cost of,
disposing of site wastes.
3.2 Extension of Statutory Limits
For eligible activities, use of the "consistency" exemption to exceed the
statutory limits of $2 million and 12 months will be considered 1n the
following manner:
(a) Cost; Only reasonable increases will be granted. Generally, this
means not more than $1 to $2 million above the statutory limits.
(b) Time; Limits on duration will be decided, based on the particular
circumstances at the site.
3.3 Sites at Which Use of the Exemption 1s Appropriate
This exemption will be used primarily at sites listed on the National
Priorities List (NPL). However, there may be limited circumstances when use
of this exemption will be appropriate for non-NPL sites. Those instances are
expected to occur only rarely, and will be determined by the AA, OSWER, on a
case-by-case basis. In addition to the above criteria, the AA will generally
consider the following factors when making that determination:
(a) the magnitude of the contamination and the threat to human health and
the environment;
(b) the status of negotiations with potentially responsible parties;
1 Procedures for analysis, justification, and documentation for
emergency and time-critical actions can be found In the "Adminis-
trative Guidance for Removal Program Use of Alternatives to Land
Disposal," August 1988. OSVER Directive 9380.2-1; for non-time-
critical actions use the EE/CA Guidance memo from Tin Fields, March
30. 1988.
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(c) the opportunity for widespread technology transfer; and t
(d) whether the site 1s likely to be proposed for the NPL.
4.0 Approval Procedures
4.1 Documentation
The action memo requesting approval of the "consistency" exemption should
document that the proposed activities meet the requirements under section 3.0,
above.
4.2 Concurrences
In addition to any concurrences ordinarily obtained, where the site 1n
question 1s proposed for or listed on the NPL, the appropriate official 1n the
Region's remedial program must concur. •
4.3 Approval
Regional Administrators (RAs) are authorized to approve requests for
exemption from the 12-month limit for both NPL and non-NPL sites. The
Assistant Administrator (AAJ, Office of Solid Waste and Emergency Response
(OSWER) retains authority to approve all requests for exemption from the 12
million limit, but may delegate that authority to RAs on a case-by-case basis.
cc: Henry Longest
Bruce Diamond
Tim Fields
Russ Wyer
Lloyd Guerd
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