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OSWER Directive No. 9833.3B
MEMORANDUM
SUBJECT:
FROM:
TO:
MAY ! 7
[Interim] Final Guidance on Administrative Records for
[Selection of] Selecting CERCLA Response Actions
[J. Winston Porter] Don R. Clav
Assistant Administrator
Regional Administrators, Regions I-X
This memorandum sets forth the policy and procedures
governing administrative records for [selection of] selecting
response actions under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), as amended by
the Superfund Amendments and Reauthorization Act of 1986 (SARA).
This guidance relates to the final regulation set forth as
subpart I of the National Contingency Plan. 55 Fed. Reg. 8859
fMarch 8. 1989^ .
Attachment
cc: Director, Waste Management Division,
Regions I, IV, V, and VII
Director, Emergency and Remedial Response Division,
Region II
Director, Hazardous Waste Management Division,
Regions III, VI, VIII, and IX
Director, Hazardous Waste Division, Region X
Director, Environmental Services Division,
Regions I, VI, and VII
Regional Counsel, Regions I-X
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. __.* *&,$«,' W*
OSWER Directive No. 9833.3B'
[INTERIM] FINAL GUIDANCE ON ADMINISTRATIVE RECORDS
FOR [THE
SELECTION OF] SELECTING CERCLA RESPONSE ACTIONS
U.S. Environmental Protection Agency
Office of Solid Waste and Emergency Response
Washington, D.C. 20460
Regional Center for Environmental Information
US EPA Region 111
1650 Arch St
Philadelphia. PA 19103
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TABLE OF CONTENTS
I. INTRODUCTION 1
A. Purpose and Scope of. the Administrative Record ... 1
B. Judicial Review . . - 3
C. Public Participation 4
II. PROCEDURES FOR ESTABLISHING THE ADMINISTRATIVE RECORD . . 5
A. Administrative Record Coordinator 5
B. Multiple Response Actions . . ..... 7
C. Compilation 7
D. Index 8
E. Location '......' 9
1. General 9
2. Special Documents 11
F. Public Availability 13
1. General 13
2. Remedial Actions 14
3. Removal Action 16
G. Maintaining the Record 19
H. Confidential File . . . 21
I. Copying 22
J. Micrographics 23
K. Certification 23
III. CONTENTS'OF THE ADMINISTRATIVE RECORD . . , 24
A. Remedial Actions 24
B. Removal Actions 28
C. Imminent and Substantial Endangerment 32
D. Public Comments 33
E. Enforcement Actions . . . 35
1. Negotiation Documents 35
2. PRP Lead RI/FS .35
3. Administrative Orders and Consent Decrees ... 36
F. Excluded Documents 37
G. Draft Documents and Internal Memoranda 37
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H. Privileged Documents 38
I. Guidance Documents ....... 41
J. Technical Literature 42
K. Legal Sources 43
L. NPL Rulemaking Docket Information 44
M. RCRA Documents 44
N. Post-Decision Documents 44
IV. INVOLVEMENT OF OTHER PARTIES 47
A. States 47
1. State Involvement in Federal-Lead Sites .... 47
2. Federal Involvement in State-Lead Sites .... 48
B. Federal Facilities . 49
C. ATSDR 50
D. Natural Resources Trustees .... 50
V. DISCLAIMER 51
VI. FURTHER INFORMATION 51
GLOSSARY 52
APPENDICES
Appendix A. Sections 113(j)-(k) of CERCLA 55
Appendix B. Model File Structure . . 57
Appendix C. Model Index 61
Appendix D. Model Position Description for Administrative
Record Coordinator 62
Appendix E. Compendium of Response Selection Guidance . . . 64
Appendix F. Model Transmittal Cover Letter 90
Appendix G. Model Document Transmittal Acknowledgement . .91
Appendix H. Model Fact Sheet 92
Appendix I. Model Notice of Public Availability . . . . . .93
Appendix J. Microform Approval Memorandum 94
Appendix K. Model Certification 95
Appendix L. Preamble to Subpart I of NCP 96
Appendix M. Subpart I of the NCP. .....' 106
Appendix N. Model Verification Statement. . . .109
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OSWER Directive No. 9833.3B.
I.
INTRODUCTION
A. Purpose and Scope of the Administrative Record Guidance
This guidance addresses the establishment of administrative
records under §113 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), as amended by
the Superfund Amendments and Reauthorization Act of 1986 (SARA).1
Section 113(k)(l) of CERCLA requires the establishment of
administrative records upon which the President shall base the
selection of a response action (see Appendix A for the complete
statutory language).
Chapter I of this guidance introduces the purpose and scope
of the administrative record. Chapter II reviews procedures for
compiling and maintaining the administrative record. Chapter III
.examines the various types of documents which should be included
in the administrative record. Chapter IV discusses [the
involvement in establishing the record of parties outside the
Agency.] how agencies outside EPA are involved in establishing
the record. Finally, this guidance includes a glossary of
frequently used terms and acronyms as well as several appendices.
Although this guidance is written for use by the United
States Environmental Protection Agency (EPA), [this guidance] it
can be adapted for use by State and Federal agencies required to
establish administrative records for the selection of CERCLA
response actions. [This guidance is not intended as a treatise
on general principles of administrative lav with regard to
administrative records.] This guidance reflects [, to the extent
feasible, proposed] the revisions to the National Contingency
Plan (NCP) published on [December 21, 1988 (53 FR 51394)] March
8, 1990. 55 Fed. Recr. 8859. (see Appendices L and M) . [The
Agency may refine or change this memorandum when it promulgates
the regulations in final form.]
The administrative record established under §113(k) of
CERCLA serves two primary purposes. First, the [basis for the
response selection is set forth in the record and] record
contains the agency's basis for selecting the response action and
under §113(j), judicial review of any issue concerning the
adequacy of [a] the response selection is limited to the record.
References made to CERCLA throughout this memorandum should
be interpreted as meaning "CERCLA, as amended by SARA."
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OSWER Directive No. 9833.3B.
Second, §113(k) requires that the administrative record act as a
vehicle for public participation in [the selection of] selecting
the response action. This guidance document discusses procedures
developed to ensure that the [Agency] agency's administrative
records meet these twin purposes.
[The basis of the Agency's selection of a response action
must be documented in the administrative record. The record
should include the documents considered or relied on by the
Agency in making the response action decision for the site. For
purposes of this guidance, documents considered by the Agency are
documents that were relied upon or comments which the Agency
solicited or received from interested parties and the public.]
The administrative record is the body of documents that forms the
basis.of the agency's selection of a particular response at a
site. This will include relevant documents that the agency
relied upon in selecting the response action, as well as relevant
documents that the agency considered but ultimately rejected.
Thus, the record will include documents generated bv the lead and
support agency, information and comments submitted by the public.
and technical and site-specific information.*The following
principles should be applied in establishing administrative
records:
o The record should be compiled as documents relating to the
selection of the response action are generated or received
by the agency;
o The record should include documents that form the basis for
the agency's decision, whether or not they support the
agency's response selection; and
o The record should be a contemporaneous explanation of the
basis for the selection of a response action.
The effort to establish adequate administrative records
encompasses a vast array of people including: Administrative
Record Coordinators, Remedial Project Managers. (RPMs), On-Scene
Coordinators (OSCs), enforcement staff, records management staff,
Regional Counsel, Community Relations Coordinators (CRCs), other
[F]federal agencies, [S]states, CERCLA contractors, and the
public. [The roles and responsibilities of these people and
2 The term "public" as used throughout this guidance includes
potentially responsible parties (PRPs).
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OSWER Directive No. 9833.3B.
their interaction forms an integral part of this guidance.] This
guidance will discuss the roles and responsibilities of these
people and hov they interact with one other.
B. Judicial Review
Section 113(j)(l) of CERCLA provides that judicial review of
any issues concerning the adequacy of any response action shall
be limited to the administrative record.
Judicial review [on the basis of] based on an administrative
record [can provide numerous benefits.] provides numerous
benefits. Under §113(j) of CERCLA and general principles of
administrative law, [the trial court reviewing the Agency's
selection of response action] when the trial court reviews the
response action selected by the agency,, the court is limited to
the documents [facts as set out] in the administrative record.
As a result, [arguments that potentially responsible parties
(PRPs) or citizens raise for the first time in court concerning
the selection of a response action should not be considered.]
facts related to the response action that challenging parties
present for the first time in court will not be considered.
Record review saves time by limiting the scope of trials,
thereby saving the agency's resources for cleanup rather than
litigation. Courts will not allow a party challenging an agency
decision to use discovery, hearings, or additional fact-finding
to look beyond the agency's administrative record, except in very
limited circumstances. In particular, courts generally will not
permit persons challenging the agency's response decision to
depose . examine, or cross-examine agency decisionmakers, staff,
or contractors concerning the selection of the_response action.
Furthermore, the administrative record may be cited long
after officials responsible for the response decisions have moved
into different positions or have left the agency. Judicial
review limited to the record will save the agency time involved
in locating former employees who may not remember the facts and
circumstances underlying decisions made at a much earlier time.
Moreover, in ruling on challenges to the response action
decision, the court will apply the highly deferential "arbitrary
and capricious" standard of review set forth in §113(j) (2) of
CERCLA. Under [that] this standard, a court does not substitute
its judgment for that of the agency. The reviewing court does
not act as an independent decisionmaker. but rather acts as a
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OSWER Directive No. 9833.3B.
reviewing body whose limited task is to check for arbitrary
action of the agency. Thus, the court will only overturn [, but
only overturns] the response selection decision if it can be
shown on the administrative record, that the decision was
arbitrary and capricious or otherwise not in accordance with the
law. However, the extent to which the agency attains the
benefits of judicial review limited to the record depends on the
quality and completeness of each record. [If the record is
incomplete or fails to provide an adequate explanation of the
basis for the agency's response action selection, the court may
remand the case to the Agency for reconsideration of its
decision. Proper and thorough compilation of the record will
help avoid these results.]
C. Public Participation
Section 113(k)(2) of CERCLA requires that the public have
the opportunity to participate in [the development of] developing
the administrative record for response selection. Section 117 of
CERCLA also includes provisions for public participation in the
remedial action selection process. Both sections reflect a
statutory emphasis on public participation [in the development of
the record and the response selection]. Participation by
interested persons will ensure that the [Agency] lead agency has
considered the concerns of the public, including PRPs, in
selecting a response action. In addition, for purposes of
administrative and j.udicial review, the record will contain
documents that reflect the participation of the public and the
agency's consideration of the public's concern. [views of the
public, including PRPs, concerning the selection of a response
action].
Without an opportunity for involvement of interested parties
in the development of the administrative record, persons
challenging a response action may argue that judicial review
should not be limited to the record. The agency must, therefore,
make the information considered or relied on in selecting a
response action available to the public, provide an appropriate
opportunity for public comment on this information, place
comments and information received from the public in the record,
and reflect in the record the agency's consideration of this
information. .
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OSWER Directive No. 9833.3B.
II. PROCEDURES FOR ESTABLISHING THE ADMINISTRATIVE RECORD
A. Administrative Record Coordinator
Each region should [designate a person to be the] have an
Administrative Record Coordinator. [As delegated, t] The Record
Coordinator generally has the duty of ensuring that the [adequate
compilation and maintenance of the administrative record files.]
administrative record files are compiled and maintained according
to Subpart I of the NCP and this guidance.3 The Record
Coordinator will not be responsible for deciding which documents
are included in a record file. Those decisions should be made
jointly by the OSC or RPM and the ORC. The Record Coordinator's
duties ordinarily include:
o Developing procedures for [the creation of] creating record
files;
o Ensuring [notification of the availability of the record
files for public inspection] that the public is notified
that the record files are available for inspection;
o Ensuring [availability of the record at the location] that
the records are available at or near the site;
o [Compiling information in a .central Regional location;]
Ensuring that the records are available at the regional
office or a central location;
i
o Coordinating efforts to obtain the necessary documents;
o Indexing the record files;
o Updating the record files and indices on a regular basis
(e.g., quarterly);
3 The "administrative record file" should be distinguished
from "administrative record." The administrative record file
refers to the documents as they are being compiled. Until the
response action has been selected, there is no complete
administrative record for that decision. Thus, to avoid creating
the impression that the record is complete at anv time prior to
the final selection decision, the set of documents is referred to
as the administrative record file rather than the administrative
record.
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OSWER Directive No. 9833.3B.
o Ensuring availability of the record file for copying;
o Ensuring [availability of validated sampling data, possibly
at a location other than that of the record files] that
sampling and testing data. Quality control and quality
assurance documentation, and chain of custody forms are
available for public inspection, possibly at a location
other than that of the record files;
o Coordinating with ORC on questions of relevance and
confidentiality of documents submitted for [inclusion in]
the record files;
o .Arranging for production and presentation to court when
necessary for -judicial review.
o Maintaining the confidential portion of the record files, if
necessary;
o Maintaining the [Regional compendium of guidance documents
and technical references] "Compendium of CERCLA Response
Selection Guidance Documents";
o Coordinating with states and federal agencies on record
files compiled by them; and
o Notifying appropriate personnel of the timing for review of
state and federal record files.
Appendix D contains a model position description for an
Administrative Record Coordinator.
The Record Coordinator must work closely with RPMs, OSCs,
enforcement staff, records management staff, Regional counsel,
community relations staff, and the Department of Justice (DOJ)
(for cases in litigation). To ensure that these persons review
the administrative record.' the Record Coordinator should have
them sign a statement verifying that they have reviewed the
record. Appendix N contains a model verification statement.
If the way the record was compiled and maintained is
questioned in litigation, the Record Coordinator may be called
upon to prepare an affidavit or testify about those procedures.
Therefore, the Record Coordinator should be familiar with the
procedures associated with the record, and be qualified to
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OSWER Directive No. 9833.3B.
fulfill the responsibilities outlined above.
B. Multiple Response Actions
Cleanups conducted under CERCLA are often broken up into
distinct [decision points] actions within a total site response
action. [For remedial actions, these separate decision points
are called "operable units."] These often relate to physical
components or geographical areas of site contamination (e.g..
source control, aroundwater remediation) known as operable units.
In addition, there may be more than one response decision for
each operable unit. The response may be an action that fully
addresses an operable unit, an "interim action," or a removal
action taken before, during or after remedial actions.
In general, a separate administrative record forms the basis
for each of these distinct actions. Every Record of Decision
(ROD) or Action Memorandum must be supported by an administrative
record.
Information relevant to more than one response decision,
such as a site inspection report or a preliminary assessment
report may be placed in the record file for an initial response
action and incorporated by reference in the indexes of subsequent
record files for that site.
C. Compilation
The administrative record file should be compiled
[contemporaneously with the generation or receipt of pertinent
information regarding a response selection. All documents for
which there is no question as to the relevance and non-privileged
nature of the information] as relevant documents on the response
action are generated or received. Thus, all documents which are
clearly relevant and non-privileged should be placed in the
record file, entered into the index, and made available to the
public as soon as possible [after generation or receipt of the
documents]. For example, the remedial investigation/feasibility
Study (RI/FS) work plan, summaries of quality assured data, the
RI/FS released for public comment, the proposed plan, and any
public comments received on the RI/FS and proposed plan should be
placed in the record file as soon as they are generated or
received.
When there are questions [as to] whether particular
documents should be included in the record file, such documents
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OSWER Directive No. 9833.3B.
can be segregated and reviewed at regular intervals (e.g., every
[3-4 months] quarter). For example, draft documents or documents
subject to claims of privilege may be set aside for review by ORC
and appropriate staff. At critical times, such as prior to the
public comment period, the issues regarding these documents
should be completely resolved and the documents included in the
record file if appropriate.
The record file [may] should be updated while it is
available for public inspection. The additional documents should
be placed in the record file and entered in the index. Any
updates to the record file should be made to all copies of the
record file... [to maintain consistency.]
All [documentation of the selection of] documents considered
or relied on in selecting the response action should be in the
record file when a decision document [(i.e., ROD or Action
memorandum)] (e.g.. a record of decision) is signed. Documents
relevant to the response selection but generated or received
after the decision document is signed should be placed in a
decision document file and may be added to the administrative
record file in certain circumstances (see section IZI.N. at page
Index
D.
Each administrative record file must be indexed. The index
plays a key role in enabling both agency staff and members of the
public to help locate and retrieve documents included in the
record file. In addition, the index can be used for public
information purposes, identifying documents located elsewhere,
e.g., included in the compendium of guidance documents (see
Appendix E). The index also provides a concise overview of the
history of the response action at the site.
The index also provides the agency with a degree of control
over documents located at or near the site. The creation of an
index will prevent persons from altering the record simply by
physically adding or removing documents from the file.
The index should include the following information for each
document:
o Document Number
o Document Date - date on the document
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OSWER Directive No. 9833.3B.
o
o
Document Title - one or two line identification. Identify
the actual document, not a transmittal memo or other less
relevant document. Include sufficient information so the
document cannot be confused with another (e.g., the title
"report" may be insufficient).
Author - Name and affiliation
Recipient - Name and affiliation
Document Location
The index can be organized either by subject or in
chronological order. 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. Appendix C contains a model index organized by
subject. Computer databases have been helpful in generating and
updating the index.
The index should be updated when the record file is updated.
It is preferable to update the record file when documents are
received, or at least quarterly. Such updates should coincide
with the periodic updating of the record file and review of
material for which there questions about relevance or privilege
(see section II.C. at page 7). The index should be [considered a
"draft" index] labeled "draft index" [until the decision document
is signed, at which time the index for the record file should be
up-to-date.] until all relevant documents are placed in the
record file. When the decision document is signed, the draft
index should be updated and labeled "index." (See section III. I
at page 41.Y
E. Location
E.I. General
Section 113(k)(l) of CERCLA requires that the administrative
record be available to the public "at or near the facility at
issue."4 Duplicates of the record file may be kept at any other
location. [A copy of the record file should be available for
public inspection at the central Regional location.] A copy of
See 40 C.F.R. section 300.805; 55 Fed. Reg. 8859-8860.
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OSWER Directive No. 9833.3B.
the record file should be located at the regional office or a
central location^ [This copy] Both copies of the record file
should be [maintained in a docket room and] available for public
inspection at reasonable times (e.g., 9-4, Monday-Friday). [A
copy of these files, with some exceptions described below, must
be located at or near the site, as required by statute.] In the
case of ,an emergency removal, however, the record file need be
available for public inspection only at the central location (see
section IT.F.3. at page 16).
The record file located at or near the site should be placed
in one of the information repositories which may already exist
for community relations purposes. These are typically located in
a library, town hall, or other publicly accessible place. If
there is no existing information repository, or if the repository
does not have sufficient space for the record file, any other
publicly accessible place may be chosen to house the record
file.5 When a Superfund site is located at or near an Indian
reservation, the centrally located copy of the administrative
record may be located at the Indian tribal headquarters. The
Community Relations Coordinator (CRC) should be consulted on the
location of the information repository and record file.
The record file should be transmitted to the local
repository in coordination with the CRC. The CRC should make the
initial contact to establish the local repository and request
housing for the record file. The-Record Coordinator should make
arrangements for delivering the record file to the local
repository.
The record file should include an introductory cover letter
addressed to the librarian or repository manager (see Appendix
F). In addition, a transmittal acknowledgement form should be
included to ensure receipt of the record file (see Appendix G).
Finally, an administrative record fact sheet should accompany the
record to answer questions from the public (see Appendix H).
Updates to the record file should be handled in a similar fashion
(see section II.C. at page 7).
If feasible, a master copy of the record file should be kept
5 If the site is located at a federal facility which requires
security clearance, the administrative record file for that site
must be located where security clearance is not required. The
public must have free access to the record file.
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OSWER Directive No. 9833.3B.
at the regional office or the central office of the lead agency.
In order to preserve the integrity of the record file, the master
copy of the record file should not be accessible to the public...
!pin order to preserve the integrity of the record file.] If not
easible, the region will need to establish an effective security
ystem for the record file [or master copy file.] The master
_opy of the record file may be maintained in microform to
conserve storage space (see section II.J. at page 23).
E.2. Special Documents
Certain documents which are included in the record file do
not have to be maintained at or near the site or, in some cases,
at the central Regional location, because of the nature of the
•--Ldpcuments and the burden associated with maintaining such
documents in multiple locations. These documents, however, must
,[Such documents must, however,] be incorporated in the record
file by reference (i.e., in the index but not physically in the
record file), and the index must indicate where the documents are
publicly accessible^ Where a document is listed in the index but
not located at or near the site, the lead agency must, upon
request, include the document in the record file at or near the
site. This applies to verified sampling data, chain of custody
forms, and guidance and policy documents. It does not apply to
documents in the confidential file.
Unless requested, the following types of documents do not
have to be located in multiple locations;
[Validated] Verified Sampling Data6
[Validated] Verified sampling data do not have to be located
"Verified sampling data" is data that has undergone the
Quality assurance and quality control process. "Invalidate^
sampling data" have been incorrectly gathered or analyzed and will
not be part of the record file. "Unvalidated sampling data" is
data which has not vet undergone the quality assurance and quality
control process. Because it is superseded by verified data^. the
unvalidated data is pot generally part of the record files.
However, such data may in some cases be relied on in selecting a
response action, such as an emergency removal where there is no
time for verification. Unvalidated sampling data which is relied
on in selecting a response action should be included in the record
file.
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OSWER Directive No. 9833.3B.
[in the region or central Regional location or at or near the
site.] in either administrative record file. The sampling data
may be left in its original storage location (e.g., Environmental
Services Division (ESD) or contract laboratory) . Data summary
sheets, — however, must be located JjL-the- file-. — TJifi__LncLex_jjjist
list_^he data summary jshJpp-hq7~^g^"^°r>^^ •*•>>*> underlying
[validated] verified sampling dataf ancj inrii <-*+•«> urh«ayc [that
underlying] the sampling data can be found^
Chain of Custody Forms
As with verified sampling data, chain of custody forms dp
not have to be located in [the central Regional location or at or
near the site.] either administrative record. [As with validated
sampling data,] The chain of custody forms may be left in the
original storage location. The index must reference the chain of
custody forms and indicate their location.
Confidential and Privileged Documents
When a confidential or privileged document is included in
the record, it should be kept in a confidential portion of the
record file. The confidential file should be kept in a locked
cabinet at the [central Regional] region or central location. It
should not be located at or near the site. The index should
identify the title and location of the [privileged] document, and
describe [the basis for the asserted privilege.] why the lead
agency considers it confidential or privileged. [A short (non-
privileged) description of the information in the privileged
document] Furthermore, the lead agency must summarize or redact
the document to make available to the greatest extent possible
critical and factual information. This summary should be
inserted in the portion of the record file available to the
public and included in the index. See also section III.H at; page
Guidance and Policy Documents
Guidance and policy documents [may be kept] that are not
site specific are available in a compendium located in the
regional office. ("Compendium of CERCIA Response Selection
Guidance Documents f" Office of Waste Programs Enforcement. May
1989.) This eliminates [to eliminate] the need for reproducing
copies of [the same] frequently used documents for each site
record file. The documents [included in such a] in the
compendium need not be physically included in the record file. ^
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OSWER Directive No. 9833.3B.
but the guidance and policy documents considered or relied on in
selecting the response action roust be listed in the record file
index along with their location and availability. [The index
must indicate which documents in the record file are located in
the guidance compendium and specify the location of the guidance
compendium. The index should reference the specific documents in
the guidance compendium which were considered or relied on for
the particular response action.] See also section III.I. at page
41 and Appendix E.
Technical Literature
Publicly available technical literature that was not
generated for the site at issue (e.g., an engineering textbook),
does not have to be located in the central regional location or
at or near the site. The document must be clearly referenced in
the index. However, technical literature not publicly available
must be physically included in the record file at the region or
central location and at or near the site. See also section
III.J. at page 40.
F. Public Availability
F.I. General
Section 113(k) of CERCLA specifies that the administrative
record "shall be available to the public." In satisfying this
provision, the [Agency] lead agency must comply with all relevant
public participation procedures outlined in §§113(k) and 117 of
CERCLA; the [proposed] NCP (see Appendices L and M) contains
additional reguirements on [guidance with respect to] public
availability (see also "Community Relations in Superfund: A
Handbook," October 1988 - OSWER Directive No. 9230.0-3A;
"Community Relations During Enforcement Activities," November 3,
1988 - OSWER Directive No. 9836.0-1A).
The availability of the record will vary depending upon the
nature of the response action. Different procedures are outlined
below for remedial and removal response actions.
In all cases, the [Agency] lead agency should publish a
notice of availability of the record file when the record file is
first made available for public inspection in the vicinity of the
site at issue. The notice should explain the purpose of the
record file, its location and availability, and how the public
may participate in its development.
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OSWER Directive No. 9833.3B.
The notice should be published in a major local newspaper of
general circulation. [and distributed to persons on the community
relations mailing list.] These notices should also be sent to
all known PRPs if they are not already included on the community
relations mailing list. As PRPs are discovered, the agency
should add their names to the community relations mailing list
and mail them all the notices sent to the other PRPs.
Publication of the notice should be coordinated with the
community relations staff. A copy of the notice of availability
\X and list__gf recipients should be included in the record file.
AppendTx I contains a model notice of availability. "
[Such a] This public notice may be combined with other
notices for the same site, such as a notice of availability of
the community relations information repository, if they occur at
the same time. [Where desired, additional notice can be made in
the Federal Register. ] In addition to the required newspaper
notice, the public can be informed of the availability of the
record file through existing agency mechanisms, e.g., general and
special notice letters, §104 (e) information requests, and the
community relations mailing list. In addition. Headquarters will
publish notices in the Federal Register. They will be published
quarterly and will list sites where remedial activity is planned.
The newspaper notices should be distributed to persons on the
community relations mailing list.
F.2. Remedial Actions
The administrative record file for a remedial action must be
available for public inspection when the remedial investigation
begins. For example, when the remedial investigation/feasibility
study (RI/FS) work plan is approved, the agency must place
documents relevant to the selection of the remedy generated up to
that point in the record file. Documents generally available at
that time include the preliminary assessment (PA) , the site
investigation (SI) , the RI work plan, inspection reports,
sampling data, and the community relations plan. The agency must
continue to add documents to the record file periodically after
they are generated or received during the RI/FS process.
The record file must be publicly available both at a
regional office or central [Regional] location and at or near the
site [at issue] (see section II. E. at page 9) . [As mentioned
above, a notice of the availability of the record file should be
published in a major local newspaper when the record file is
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•SWER Directive N«. 9833.3B.
first made available for public inspection.] In addition, the
notice of availability should be sent to persons on the community
relations mailing list, including all known PRPs.
With the completion of the RI/FS, the lead agency should
undertake the following public participation procedures:
o Prepare a proposed plan which briefly analyzes the remedial
alternatives [studied in the RI/FS] evaluated in the
detailed analysis of the RI/FS and proposes a preferred
remedial action alternative;
o Make the RI/FS report and proposed plan available in the
record files both at a regional office or central regional
location and at or near the site
o Publish in a newspaper a notice of availability and brief
analysis of the RI/FS report and proposed plan; [The notice
should include the deadline for submission of comments.]
o Mail the notice or copy of the notice all PRPs on the
community relations mailing list;
o Provide a formal comment period of not less than 30 calendar
days for submission of comments on the proposed plan and
upon timely request, to extend the public comment period by
a minimum of 30 additional days; [[Note: the current NCP
requires a public comment period of not less than 21 days.
The Agency has proposed in the revised NCP a public comment
period of not less than 30 days.]] JNote; The acrencv is
encouraged to consider and respond to significant comments
that were submitted before the public comment period.
Considering early comments provides practical benefits both
substantively and procedurally. Earlv comments may provide
important information for the selection decision, and early
consideration provides the public (and, particularly, PRP's)
with additional informal opportunities for participating in
the decisionmaking process.]
Provide the opportunity for public meeting(s) in the
affected area during the public comment period [regarding]
on the RI/FS and proposed plan;
Keep a transcript of the public meeting(s) on the RI/FS and
proposed plan held during the comment period and [make such
transcript available to the public by including a copy]
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OSWER Directive No. 9833.3B.
include a copy of the transcript in the record file;
o Prepare a discussion (to accompany or be part of the
decision document) of any significant changes to the
proposed plan which occurred after the proposed plan was
made available for public comment which are reflected in the
ROD ;
o Prepare a response to each of the significant comments
submitted during the public comment period to accompany the
ROD (see section III.D. at page 33); and
o Publish in a newspaper a notice of the availability of the
ROD and make the ROD available to the public before
[commencement of] beginning any remedial action as required
under §117(b) of CERCLA.
Comments received after signing the ROD should be placed in
a post-decision document file and may be added to the record file
in certain situations (see section III.N. at page 44). The
agency may hold additional public comment periods after signing
the ROD.
F.3. Removal Actions
Section 113(k)(2)(A) of CERCLA requires that the Agency
establish procedures for the appropriate participation of
interested persons in the development of the administrative
record for the selection of a removal action. "Appropriate"
participation depends on the nature of the removal, as outlined
below.
Time-critical Removal Actions
A time-critical removal action is a removal action for
which, based on the site evaluation, the agency determines that a
period of less than six months exists before on-site removal
activities must be initiated. This category includes emergency
removal actions which are described in greater detail below.
The administrative record file for these actions must be
available for public inspection no later than 60 days after the
initiation of pn-site removal activity. [If feasible,] Where
possible, the record file should be made available earlier. The
record file must be available both at a central Regional location
and at or near the site at issue.
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OSWER Directive No. 9833.3B.
If, however, on-site cleanup activity is initiated within
hours of the verification of a release or threat of a release and
on-site cleanup activities cease within 30 days (emergency
actions), the record file [may be made available only at central
Regional location and need not be made available at or near the
site.] need only be available at the regional office or central
location.
For all time-critical removals, a notice of the availability
of the record file must be published in a major local newspaper
and a copy of the notice included in the record file. This
notice should be published no later than 60 days after beginning
on-site removal activity.
A public comment period of not less than 30 days should be
held in appropriate situations. In general, a public comment
period will be considered appropriate if cleanup activity has not
been completed at the time the record file is made available to
the public and if public comments might have an impact on future
action at the site. If a public comment period is considered
appropriate, it should begin at the time the record file is made
available for public inspection. Note, however, that even if an
action is completed before the record is available, the record
should be made available to the public. The notice for the
public comment period may be combined with the notice of
availability of the record file if they occur at the same time.
The notice should be mailed to all PRPs on the community
relations mailing list. The notice should also be sent to all
known PRPs if they are not already on the community relations
mailing list. The agency must respond to all significant
comments received during the public comment period and place the
comments and the responses to them in the record file (see
section III.D. at page 33). Whether or not the agency holds a
public comment period, comments received by the agency before the
decision document is signed and related tp the selection of the
removal action must be placed in the record file. For
information, including comments, generated or received after the
decision document is signed, see section III.N at page 44.
Non-Time-Critical Removal Actions
A non-time-critical removal action is a removal action for
which, based on the site evaluation, the [Agency] lead agency
determines that a planning period of at least six months exists
before on-site removal activities must be initiated.
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The administrative record file for a non-time-critical
removal action must be made available for public inspection when
the engineering evaluation/cost analysis (EE/CA) is made
available for public comment. The record file must be available
[both] at the regional office or central location and at or near
the site. [a central Regional location and at or near the site
at issue (see section II.E.).] A notice of the availability of
the record file must be published in a major local newspaper and
a copy of the notice included in the record file. The notice
should be published in a major local newspaper of general
circulation. In addition. Headquarters will publish these
notices in the Federal Register. They will be published
quarterly and will list sites where non-time critical removal
activity is planned. The newspaper notice should be distributed
to persons on the community relations mailing list and placed in
the record file. These notices should also be sent to all known
PRPs if they are not already on the community relations ..mailing
list. As PRPs are discovered, the agency should add their names
to the community relations mailing list and mail them all the
notices sent to the other PRPs. Publication of the notice should
be coordinated with the community relations staff. A copy of the
notice of availability should be included in the record file.
Appendix I contains a model notice of availability.
A public comment period on the EE/CA of not less than 30
days must be held so that interested persons may submit comments
on the response selection for [inclusion in] the record file. A
notice of the public comment period may be combined with the
notice ,of availability of the record file if they occur at the
same time. The agency must respond to all significant comments
received during the public comment period and place the comments
and the responses to them in the record file (see section III.D.
at page 33).
The agency is encouraged to consider and respond to
significant comments that were submitted before the public
comment period. Considering early comments provides practical
benefits both substantively and procedurally. Early comments may
provide important information for the selection decision, and
earlv consideration provides the public (and, particularly.
PRP's) with additional informal opportunities for participating
in the decision making process.
Comments generated or received after the decision document
is signed [related to selection of the removal action] should be
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OSWER Directive No. 9833.3B.
kept in a post-decision document file. They may be added to the
record file in certain situations (see section III.N. at
page 44).
G. Maintaining the Record
Document room procedures should be established to ensure
orderly public access to the record files. In establishing
public access procedures, the security and integrity of the
record files must be maintained at all times.
Each regional office should have a reading area where
visitors are able to review the record files. The record file
must be available during reasonable hours (e.g., 9-4, Monday-
Friday) . The public reading area should include, wherever
feasible:
o Administrative record files
i
o Guidance Compendium (see section III.I. at page 41)
o Access to a copier
o Sign-in book
Controlled access to the files is accomplished by use of a
visitor sign-in book. Sign-in books help minimize instances in
which documents are lost or damaged. They also provide
documentation of the agency's efforts to provide public access to
the record files. Pertinent information recorded in the book
should include:
o . Date of visit
o Name
o Affiliation
o Address
o Phone number
o Site documents viewed
o Cost of copied materials (if applicable)]
The region may choose not to use sign-in books JLf the books
deter the public from reviewing the record files.
Since documents in the record file should be complete,
properly organized and legible, the integrity of the record file
must be maintained. If possible, storage and reading areas
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OSWER Directive No. 9833.3B.
should be supervised to maintain proper security. Documents
should not leave the document room or be left unattended. To the
extent feasible, the record coordinator should check the order of
the documents after being viewed by the public to be certain all
documents have been returned intact. The documents in the record
file should be kept secure, either in a locked room or in locked
cabinets.
The record file located at or near the site should be
handled with similar care. If possible, the record file should
be treated as a non-circulating reference; it should not leave
the local repository except under supervision. The phone number
of a record file contact should be provided to record file users
and to the manager of the local repository so that problems can
be identified and [cured] resolved. [Such] This information can
be included in an informational fact sheet accompanying the
record file (see Appendix H). In addition, the Record
Coordinator should plan periodic reviews of the local record
files... [on a systematic basis.]
Where the site is a fund-lead or PRP-lead, EPA should retain
a master copy of the record file at [a central Regional
location.] the regional office or central location, if feasible.
Where a state is the lead agency at a site, EPA should assure
that the state maintain a master copy of the record file. The
record files are permanent records that must be retained.
As to the local repository, the statute and [proposed]
regulations are silent concerning the duration of public
availability of the record file. The agency's primary concern is
public participation in [selection of] selecting the response
action. Following initiation of the response action, public
interest in background information other than the Record of
Decision or RI/FS may wane. In any event, the statutory
provisions for judicial review and deadlines for filing cost
recovery actions provide useful references for keeping the record
file publicly available. See §§113(g) and (h) of CERCLA.
Where there is ongoing for possible) [cost recovery]
litigation^ [or such litigation is possible,] the record file in
the central location should be available at least until the
[completion of pending litigation concerning the site.]
litigation is over.
The record file continues to serve as a historical record of
the response selection, even after the statute of limitations for
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OSWER Directive No. 9833.3B.
cost recovery action has passed. Where there is considerable
public interest, the local repository may wish to keep the record
file available for public viewing.
H.
Confidential File
In certain situations, documents in the record file may be
subject to an applicable privilege (see section III.G. at p. 19).
Whenever feasible, information relevant to the response selection
which is contained in a privileged document should be extracted
in a releasable manner and included in the publicly accessible
portion of the record file. The privileged document should be
included in a confidential portion of the record file.7
The Administrative Record Coordinator should maintain a
confidential portion of the record file for [such] privileged
documents. These documents should be listed in the index to the
entire record file and identified as "privileged." The index
should identify the title and location of the privileged
document, and describe the basis for the asserted privilege. [A
short (non-privileged) description of the document and its
privileged nature should, where possible, be placed in the files
available to the public.]
The confidential portion of the record file should be stored
in locked files at [a central Regional location] the regional
office or central location and should not be located at or near
the site. The confidential portion of the record file should be
separate from the publicly available record file to protect
against inadvertent disclosure. Each privileged document should
be stamped "confidential" at the bottom of each page of the
document. Where the material is not a written document (such as
a computer disk or cassette tape) the jacket should be stamped
"confidential." A complete list of all materials contained in
the confidential portion of the record file should be maintained
by the Record Coordinator. The coordinator should also maintain
a log which will include the time, date, document name, and will
identity of persons checking out and returning materials to the
confidential file.
A routine access list should be prepared for each record
file or, in the future, as soon as a new record file is
established. This routine access list must be approved by the
7 See 40 C.F.R. section 300.810(d); 55 Fed. Reg. 8860.
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OSWER Directive No. 9833.3B.
Waste Management Division Director or the Environmental Services
Division Director, and ORC. Once approval is given, persons on
the list will be able to access the confidential files through
the Record Coordinator. No one should have access to the
confidential files without the approval of the persons listed
above.
This policy and procedure for privileged materials does not
supersede any policy and procedures established by the agency
under the Freedom of Information Act (FOIA), 5 U.S.C., §552, and
agency regulations implementing FOIA at 40 C.F.R. Part 2. If the
requester is in close proximity to the record file, the agency
may respond to FOIA requests for the administrative record by
telling a requester the location and availability of the record
file. Decisions regarding disclosures of materials under FOIA
should be coordinated among the various agency officials with
access to such materials.
I. Copying
Section 117(d) of CERCLA requires that each document
developed, received, published, or made available to the public
under §117 be made available for public inspection and copying at
or near the site. Under §113(k)(2)(B) of CERCLA, these documents
must also be included in the administrative record. Under these
provisions of CERCLA, the agency must ensure that documents in
the record file are available for-copying but does,not bear
responsibility for copying the documents themselves. Therefore,
it is preferable that the record file should be located in a
facility which contains a copying machine (e.g., a public
library).
Alternatively, the agency may arrange for copying on behalf
of a requester. The agency may ask that requesters arrange for
copying by contractors or commercial copy centers who then bill
the requester directly.
The agency should follow the FOIA regulations at 40 C.F.R.
Part 2 in determining the appropriate charge for copying.
[Generally,] Copying fees should be waived for other federal
agencies, EPA contractors or grantees, and members of Congress.
The Agency currently charges $.20 a page for paper copies as
provided in 40 C.F.R. Part 2. Reproduction of photographs,
microfilms or magnetic tapes, and computer printouts should be
charged at the actual [direct] cost to the agency.
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OSWER Directive No. 9833.3B.
J. Micrographics
The agency may make the administrative record file available
to the public in microform.8 Use of micrographics can
significantly reduce the space required to store administrative
record files. In addition, micrographics can simplify the tasks
of reproducing copies of the record and transmission of the
record files to the local repositories. Any use of micrographics
should be conducted in an orderly manner consistent with records
management procedures. If using micrographics to maintain the
record files, the lead agency must provide microaraphic readers
at the regional office or central location [readers will need to
be available at the regional office] and with the record file
located at or near the site to ensure public access to the record
files.
Microform copies of original documents are admissible in
court if created in an organized fashion. The Business Records
as Evidence Act (28 U.S.C. §1732) specifies that copies of
records, which are made "in the regular course of business" and
copied by any process which accurately reproduces the original,
are "as admissible in evidence as the original itself." See also
Federal Rules of Evidence 1003. [Thus, if the agency can
demonstrate that CERCLA records and microform copies of those
records are produced in the regular course of business, they
would be admissible in court.] Since the NCP provides for use of
microform, microform copies of administrative record documents
that are produced in the regular course of business would be
admissible in court.
The Office of Information Resources Management (OIRM) has
granted approval for the use of micrographics in establishing
administrative records (see Appendix J). Any use of
micrographics [must] should still comply with the remaining
provisions of Chapter 6 of the EPA Records Management Manual
(7/13/84).
K.
Certification
The agency must certify the completeness of the
administrative record when the record is filed in court.
Appendix K contains a model court certification.
See 40 C.F.R. section 300.805(c); 55 Fed. Reg. 8860.
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OSWER Directive No. 9833.3B.
Such certification should be signed by the Regional
Administrator's designee after consultation with ORC.. [and DOJ.]
Any certification of the record should be made by program staff
and not legal staff.
[Although not required,] The region may choose to have the
Administrative Record Coordinator certify that the record was
compiled and maintained in accordance with applicable agency
regulations and guidance. Such certification would attest that
the record was compiled in accordance with current agency
procedures and would not address the completeness of the record
file.
III. CONTENTS OF THE ADMINISTRATIVE RECORD
A. Remedial Actions
The administrative record for selection of a remedial action
should consist of:
o documents which the Agency considered or relied on to select
the remedial action; and
o documents which demonstrate the public's opportunity to
participate in and comment on the selection of the remedial
action.
[As stated earlier, the administrative record file for the
selection of a remedial action must be made available for public
inspection at the commencement of the remedial investigation
phase. For example, when the RI/FS work plan is approved, the
Agency must place documents on selection of remedy generated up
to that point in the record file. Documents should continue to
be added to the record file until a decision document is signed.
Documents containing new information relevant to the response
selection but generated or received after the decision document
is signed should be kept in a post-decision document file and may
be added to the record file in certain situations (see section
III.N.).
Typically, but not in all cases, the record for a remedial
8860.
9 See 40 C.F.R. sections 300.810 and 300.815; 55 Fed. Reg.
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OSWER Directive No. 9833.3B.
response action will consist of the following types of documents.
The list below is neither a statement of requirements for each
record nor is it exclusive. The record file should include any
other documents not listed below which meet the general criteria
described in the first paragraph of this section. ]
Below is a list of documents that are usually generated when
the agency selects a remedial response action. These documents
should be included in the administrative record file if they are
generated and considered or relied on by the agency when
selecting the remedial response action. Documents that
demonstrate the public's opportunity to participate in and
comment on selecting the remedial response action should also be
included in the record file. Documents not listed below, but
meeting the above criteria, should be included.
Factual Information/Data
o Preliminary Assessment (PA) report
o Site Investigation (SI) report
o Approved Remedial Investigation/Feasibility Study (RI/FS)
work plan
o Amendments to final work plan
o Sampling and Analysis Plan (SAP): consisting of a quality
assurance project plan (QAPP) and a field sampling plan
o Sampling data: [validated] verified data during the RI/FS,
or any data collected for previous actions such as RCRA or
removal actions which are considered or relied on in
selecting the remedial action. Unvalidated data should be
included only if relied on by the Agency in the absence of
validated data. (See note 6 at page 11.)
o Chain of custody forms
o Inspection reports
o Data summary sheets
o Technical studies performed for the site (e.g., a ground
water study)
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OSWER Directive No. 9833.3B.
o Endangerment assessment/risk assessment and underlying
documentation (see section III.C. at page 32)
o Fact sheet or summary information regarding remedial action
alternatives generated [when] if special notice letters are
issued to PRPs at an early stage of the"RI/FS (see "Interim
Guidance on Notice Letters, Negotiations, and Information
Exchange," October 19, 1987 - OSWER Directive No. 9834.1)
o RI/FS (as available for public comment and as final,, if
different)
o Data submitted by the public, including PRPs
Policy and Guidance
o Memoranda on site-specific or issue-specific policy
decisions. Examples include memoranda on off-site disposal
availability, special coordination needs (e.g., dioxin), and
applicable, or relevant and appropriate requirements (ARARs)
(to the extent not in the RI/FS), cost effectiveness, and
utilization of permanent solutions and alternative treatment
technologies.
o Guidance documents (see section III.I. at page 411
o Technical literature (see section III.J at page 42)
Public Participation (Include the documents that show the public
was notified of site activity and had an opportunity to
participate in the response selection.)
o Community relations plan
o Newspaper articles showing general community awareness
b Proposed plan
o Documents sent to persons on community relations mailing
list and associated date and mailing list for each document
o Public notices: any public notices concerning response
action selection such as notices of availability of
information, notices of meetings, and notices of
opportunities to comment, and mailing list
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OSWER Directive No. 9833.3B.
o Documentation of public meetings: information generated or
received during meetings with the public [(including PRPs)],
and memoranda or notes summarizing significant information
submitted during such meetings
o Public comments: complete text of all written comments
submitted (see also section III.D. at page 31)
o Transcripts of public meetings: [includes especially]
including meetings held during the public comment period on
RI/FS, proposed plan, and any waiver of ARARs under
§121(d)(4) Of CERCLA
o Responses to significant comments: responses to significant
comments received from the public concerning the selection
of a remedial action
o Responses to comments from the state and other federal
agencies
Enforcement Document (Include if the document contains
information [relevant to] that was considered or relied on in
selecting the response selection or shows that the public had an
opportunity to participate in selecting the response action.
[public participation in the response selection1 Do not include
enforcement document solely pertaining to liability.) [and does
not pertain exclusively to liability)]
o Administrative orders
o Consent decrees
p Affidavits containing relevant factual information not
contained elsewhere in the record
o Notice letters to PRPs
o Responses to notice letters
o §104(e) information request letters and subpoenas
o Responses to §104(e) information request letters and
subpoenas
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OSWER Directive No. 9833.3B.
Other Information
o Index (see section II.D. at page 8)
o Documentation of state involvement: documentation of the
request and response on ARARs, §121(f)(1)(G) notices and
responses, a statement of the state's position on the
proposed plan (concurrence, nonconcurrence, or no comment at
the time of publication), opportunity to concur in the
selected remedy and be a party to a settlement (see section
IV.A. at page 44.)
o health assessments, health studies, and public health
advisories issued by the Agency for Toxic Substances .and
Disease Registry (ATSDR)(see section IV.c. at page 47)
o Natural Resource Trustee findings of fact and final reports
and natural resource damage assessments (see section IV.D.at
page 47)
Decision Documents
o Record of decision (ROD): final remedial action decision
document (including responsiveness summary)
o Explanations of significant differences (under §117(c)) and
underlying information
o Amended ROD and underlying information
The administrative record should both track the history of
the site and be understandable to the reader. Appendix B
provides a model file structure for organizing the record.
Appendix C contains a model index.
B. Removal Actions
The administrative record for selection of a removal action
should consist of:
o documents which the Agency considered or relied on to select
the removal action; and
o documents which demonstrate the public's opportunity to
participate in and comment on the selection of the removal
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OSWER Directive No. 9833.3B.
action, when appropriate.
10
[For a time-critical removal action, the record file should
be available for public inspection as early as possible and must
be available no later than 60 days after initiation of on-site
removal activity. Documents prepared prior to the final decision
document must be placed in the record file and made available to
the public.
For a non-time-critical removal action, the record file must
be made available for public inspection when the EE/CA is
available for public inspection. Documents should continue to be
added to the record file from the time the EE/CA is available
until a decision document (i.e. Action memorandum) is signed.
For all removal actions, documents containing new
information generated after the selection of a response action,
other than comments made during the public comment period and
responses to those comments, should be kept in a post-decision
document file and may be added to the record file in certain
situations (see section III.N.).
Typically, but not in all cases, the record for a removal
response action will consist of the following types of documents.
The list below is neither a statement of requirements for each
record nor is it exclusive. The jrecord file should include any
other documents not listed below which meet the general criteria
described in the first paragraph of this section. ]
Below is a list of documents that are usually generated when
the agency selects a removal response action. These documents
should be included in the administrative record file if they are
generated and considered or relied on by the agency when
selecting the removal action. Documents that demonstrate the
public's opportunity to participate in and comment on selecting
the removal response action should also be included in the record
file. Documents not listed below, but meeting the above
criteria, should be included.
10 See 40 C.F.R. sections 300.810 and 300.820; 55 Fed. Reg.
8860-8861.
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Factual Information/Data
o Preliminary assessment (PA) report
o Site evaluation (SI) report
o EE/CA (for a non-time-critical removal action)
o Sampling plan
o Sampling data: [validated] verified data obtained [in
support of] for the removal action, or any data collected
for previous actions such as RCRA or other response actions
which are considered or relied on in selecting the removal
action. [Unvalidated data should be included only if relied
on by the Agency in the absence of validated data.] (See
note 5 at page 11.)
o Chain of custody forms
o Inspection reports
o Technical studies performed for the site (e.g., a ground
water study)
o Risk evaluation/endangerment assessment and underlying
documentation
o Data submitted by the public, including PRPs
Policy and Guidance
o Memoranda on site-specific or issue-specific policy
decisions. Examples include memoranda on off-site disposal
availability, compliance with other environmental statutes,
special coordination needs, e.g., dioxin.
o Guidance documents (see section III.I. at page 41)
o Technical literature (see section III.J.at page 42)
Public Participation (Include the documents that show the public
was notified of site activity and had an opportunity to
participate in the response selection.)
o Community relations plan
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o Newspaper articles shoving general community awareness
o Documents sent to persons on community relations mailing
list and associated date and mailing list for each document
o Public notices: any public notices concerning response
action selection such as notices of availability of
information, notices of meetings, and notices of
opportunities to commentf and mailing list
o Documentation of public meetings: information generated or
submitted during meetings with the public (including PRPs)
and memoranda or notes summarizing significant information
submitted during such meetings
o Public comments: complete text of all written comments
submitted (see section III.D. at page 31)
o Responses to significant comments: responses to significant
comments received from the public concerning the selection
of a removal action
o Responses to comments from states and other federal agencies
[comments]
Enforcement Document (Include if the document contains
information [relevant to] that was considered or relied on in
selecting the response selection or shows that the public had an
opportunity to participate in selecting the response action.
[public participation in the response selection1 Do not include
enforcement documents solely pertaining to liability.) [and does
not pertain exclusively to liability)]
o Administrative orders
o Consent decrees
o Affidavits containing relevant factual information not
contained elsewhere in the record
o Notice letters to PRPs
o Responses to notice letters
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o §104(e) information request letters and subpoenas
o Responses to §104(e) information request letters and
subpoenas
Other Information
o Index (see section III.D. at page 31) . ' N*
o Documentation of state involvement (see section IV.A. at
page 47) '
o ATSDR health assessments, health studies, and public health
advisories (see section IV.C. at page 50 i
o Natural Resource Trustee findings of fact and final reports
and natural resource damage assessments (see IV.D. at p. 50)
Decision Documents
o EE/CA Approval Memorandum
o Action Memorandum
o Final Pollution Report; Where decision to select the
removal action is made after the action memo is signed, the
final pollution report may be placed in the record
o Amended Action Memorandum
The administrative record should both track the history of
the site and be understandable to the reader. Appendix B
provides a model file structure for organizing the record.
Appendix C contains a model index.
C. Imminent and Substantial Endangerment
Under §106 of- CERCLA, the Agency may find, the existence of
an imminent and substantial endangermeht to the public health or
welfare of the environment because of an actual or threatened
release of a hazardous substance.
[The determination of] Determining the existence of an
imminent and substantial endangerment is an important component
[of the selection of] in selecting the response action.
Therefore, all documents considered or relied on in making that
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determination, including any [endangerment assessment and its
underlying documentation,] risk assessment, and its supporting
documentation, must be included in the administrative record
file.11 [If the determination that there is an imminent and
substantial endangennent is properly documented in the record
file,] If there is proper documentation of the determination of
an imminent and substantial endangennent in the record file.
judicial review of that determination in an action under §106 of
CERCLA [will] should be limited to the administrative record.
D. Public Comments
[In general, t] The administrative record should document
[any opportunity for public involvement in the selection of a
response action.] the public's opportunity to be involved in
selecting a response action. This can be accomplished bv
including in the record all documents related to the opportunity
to participate (e.g., notices and fact sheets), and relevant
written comments and information [received from] submitted bv the
public [should be included in the record file to establish a
complete record for purposes of judicial review.]
(e.g.. reports and data).
[The record file should contain information brought to the
attention by the public. Reports, data and other information
generated by outside parties and submitted to the agency should
be included in the record file.] Public requests for information
(e.g., Freedom of Information Act (FOIA) requests for copies of
reports), need not be included in the record file.
The agency should request that substantive oral comments
(either in person or over the phone) be put in writing by the
commenter [for inclusion in] and submitted to the record file.
The commenter should be advised that the obligation to reduce the
comment to writing rests with the commenter. The agency.
however, may reduce it to writing where the agency will want to
rely on the comment.
The agency may respond to comments received prior to a
public comment period in various ways, depending on the nature
11 See "Guidance on Preparing Superfund Decision Documents;
The Proposed Plan. The Record of Decision. Explanation of
Significant Differences. ROD Amendment." OSWER Directive number
9355.3-02. July 1989.
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and relevance of a particular comment. The agency's
consideration of such a comment may be in the form of a written
response, or reflected by documented actions taken after
receiving the comment, or even by changes in subsequent versions
of documents. If the agency prepares a written response to a
comment, the response should be included in the record file.
The agency may notify commenters that comments submitted
prior to a formal public comment period must be resubmitted or
specifically identified during the public comment period in order
to receive formal response by the agency. Alternatively, the
agency may notify a commenter that the agency will respond to the
comment in a responsiveness summary prepared at a later date.
The agency, however, has no duty to respond to any comments
received before the formal public comment period, or to respond
to comments during the public comment period until the close of
the public comment period. [The agency may, in its discretion,
respond in writing to comments submitted outside of a formal
public comment period.]
The agency, however, is encouraged to consider and respond
to significant comments that were submitted before the public
comment period. Considering early comments provides practical
benefits both substantively and procedurallv. Early comments may
provide important information for the selection decision, and
early consideration provides the public (and, particularly.
PRP's) with additional informal_opportunities for participating
in the decision making process71<:
Comments received during the formal public comment period
must be addressed in the responsiveness summary (included with
the ROD in remedial response actions). The responses may be
combined by subject or other category in the record file.
Comments should be included in the record file in their original
form wherever feasible.
Comments which are received after the formal comment period
closes and before the decision document is signed should be
included in the record file but labeled "late comment." Such
comments should be handled as post-decision information (see
section III.N. at page 44).
12 See 40 C.F.R. sections 300.815(b), 300.825(a)(2), and
300.825(b)(2); 55 Fed. Reg. 8860-8861.
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Comments received after the decision document is signed
should be placed in a post-decision document file. They may be
added to the record file in limited circumstances (see section
III.N. at page 44).
E. Enforcement Actions
The same procedures should be used for establishing an
administrative record whether or not a response action is
selected in the context of an enforcement action. The following
additional information, however, may assist [the establishment, of
administrative records for selection of CERCLA response actions
where there is enforcement activity.] the agency where there is
enforcement activity.
E.I. Negotiation Documents
During negotiations with the agency, a potentially
responsible party (PRP) may produce documents and claim that they
constitute confidential business information (CBI) or offers of
settlement subject to Rule 408 of the Federal Rules of Evidence.
Generally, those documents are not part of the
administrative record for response selection unless they are
submitted by PRPs for consideration in selecting a response
action and are considered or relied on in selecting the response
action. A privileged document which was considered or relied on
in selecting the response action should be placed in the
confidential portion of the record file. Such a document should
be summarized and the summary included in the publicly accessible
portion of the record file (see section II.H. at page 21). If
the information cannot be summarized in a disclosable manner, the
information should be placed in the confidential portion of the
record file only and listed in the index to the file.
E.2. PRP-lead RI/FS
Where a PRP is conducting the RI/FS, the PRP must submit all
technical information on selection of the remedial action
generated during the RI/FS to the agency. Technical information
includes work plans, sampling data/ reports, and memoranda. The
lead agency, and not the PRP, will establish and maintain the
administrative record file (see "Interim Guidance on Potentially
Responsible Party Participation in Remedial Investigations and
Feasibility Studies," May 16, 1988, OSWER Directive No. 9835.la
and "Model Administrative Order on Consent for Remedial
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Investigation and Feasibility Study," January 30, 1990, OSWER
Directive No. 9835.10.)
PRPs may be delegated responsibility for some record file
maintenance activities, such as housing the files at or near the
site. PRPs cannot, however, be responsible for decisions on what
documents comprise the record, because of, among other things,
the potential for a conflict of interest.
E.3. Administrative Orders and Consent Decrees
Final administrative orders and consent decrees issued prior
to selection of the response action (e.g. ordering a PRP to
conduct the RI/FS), should be included in the administrative
record file. Administrative orders or consent decrees issued
after the signing of the ROD or the action memorandum should not
be included in the record file, unless the consent decree or
administrative order meets the criteria for the inclusion of
post-decision documents in the record file (see section III.N. at
page 44). [In such cases, the documents may be added to the
record file in accordance with procedures for post-decision
documents.] Drafts of administrative orders and consent decrees
should not be included in the record file..unless the drafts
contain factual information that was considered or relied on and
is not found elsewhere in the record file.
[Note that administrative orders must also be supported by
an administrative record. These administrative records are not
the same as administrative records for the selection of a
response action as described in this guidance. Some of the
documents, however, which form the basis for a response decision
may also form the basis for an order or decree. For example,
some of the same documents which were considered or relied on to
make the response decision embodied in a ROD will likely form the
basis of a de minimis settlement embodied in a consent order. In
such a case, the record file which forms the basis for the
consent order can reference the documents contained in the
record file for the response decision.]
The issues relating to administrative records for
administrative orders and de minimis settlements are not
addressed by this guidance.
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F. Excluded Documents
Certain documents should not be included in the
administrative record because they are irrelevant to the
selection of the response action. Documents should be excluded
from the administrative record if the agency did not consider or
rely on them in selecting the response action.
Material beyond the scope of the record should be kept in
separate files maintained at the regional office. These files
need not be made publicly available, although many of the
documents in the files may be available to the public if
requested under FOIA.
Examples of documents that are irrelevant to the decision on
selecting a response action may include Hazard Ranking System
(HRS) scoring packages, contractor work assignments, cost
documentation (as opposed to cost effectiveness information), and
National Priorities List (NPL) deletion information. If,
however, these documents contain information that is considered
or relied on in the response action selection and [that is] not
contained elsewhere in the record file, then the documents should
be included in the record file.
Information regarding PRP liability is generally not
included in the record file for selection of the response action
except to the extent such information (typically substance
specific) is considered or relied on in selecting the response
action. Documents relating to PRP liability, however, should be
compiled and maintained in the regional office so that they are
available at the time of notice to PRPs or referral of any
litigation.
G. Draft Documents and Internal Memoranda
In general, only final documents should be included in the
administrative record file. The record file should not include
preliminary documents such as drafts and internal memoranda.
Such documents are excluded from the record file because drafts
and internal memoranda are often revised or superseded by
subsequent drafts and memoranda prior to the selection of the
response action. The preliminary documents are, therefore, not
[in fact] considered or relied on in making the response action
decision.
Drafts (or portions of them) and internal memoranda should
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OSWER Directive No. 9833.3B.
be included, however, in [two] three instances. First, if a
draft document or internal memorandum is the basis for a decision
[(e.g., the draft contains factual information not included in a
final document, a final document does not exist, or did not exist
when the decision was made),] the agency should place the draft
document or internal memorandum in the record file. This may
occur if the draft contains factual information which was relied
on but is not included in a final document, a final document does
not exist, or a final document did not exist when the decision
was made.
Second, if a draft document or internal memorandum is
circulated to an outside [party] person who then submits comments
which the decisionmaker considers or relies on when making a
response action decision, relevant portions of the draft document
or the memorandum and the comments on that document should be
included in the record file.
Third, if a draft document or internal memorandum explains
or conveys decisions on the procedures for selecting the remedy
or the substantive aspects of a proposed or selected remedy
(e.g.. the scope of a site investigation or the identification of
potential ARARsV. the document should be placed in the record
files, even though the documents were signed bv persons other
than the Regional Administrator and generated long before the ROD
or action memorandum was signed.
Examples of internal memoranda and staff notes which should
not be included in the record file are documents that express
tentative opinions or recommendations of staff to other staff or
management, or internal documents that evaluate alternative
viewpoints. Drafts and internal memoranda may also be subject to
claims of privilege (see section III.H. at page 38).
When a federal agency, other than EPA, is the lead agency.
it is considered an outside party. Thus, memoranda and draft
documents sent between the federal agency and EPA are not subject
to the privileges of memoranda and drafts that are generated and
reviewed within an agency. This also applies to states when they
are a lead agency.
H. Privileged Documents
Some documents in the administrative record file may be
protected from public disclosure on the basis of an applicable
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OSWER Directive No. 9833.3B.
privilege.13 Any documents which are considered or relied on in
a response action selection, but withheld from the public portion
of the record file based on privilege, must be placed in a
confidential portion of the record file (see section II.H. at
page 21).
If a document is excluded from the public portion of the
record file based on privilege, the relevant information should,
if feasible, be extracted and included in the public record file.
This can often be accomplished by deleting or redacting the
privileged information from the document.
The privileges discussed below may be asserted by the agency
with respect to documents that are considered or relied on in the
selection of a response action. The head of the office
responsible for developing the document in question should assert
the privilege. In all cases, the official asserting a privilege
should consult with ORC.
Public disclosure of a privileged document may result in
waiver of the privilege, although the nature and extent of the
waiver will depend on the privilege asserted and the
circumstances of the disclosure. If the privilege is waived and
the document becomes a public document, it must be disclosed to
anv requester. In light of the potential for waiver, it is
important that agency personnel not release potentially
privileged documents to the public without consulting with ORC.
Deliberative Process
The deliberative process privilege applies to pre-
decisional, deliberative communications that express opinions,
advice, and recommendations of staff to other staff or
management. The privilege functions to encourage the honest and
free expression of opinion, suggestions and ideas among those
formulating policy for government agencies (see "Guidance for
Assertion of Deliberative Process Privilege," 10/3/84).
In general, if a document contains factual information
forming the basis for the selection of the response action, the
factual portion [it] should be included in the record file.
Use of the deliberative process privilege should be balanced
13
See 40 C.F.R. section 300.810(c); 55 Fed. Reg. 8860.
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with the statutory mandate of including the public in the
response action selection process. The privilege should be
asserted if disclosure of the document will have an inhibiting .
effect on frank and open discussion among government staff and
decisionmakers. Documents should not be withheld solely because
they would reveal flaws in the case or information embarrassing
to the government. Specific procedures exist for assertion of
the deliberative process privilege, which include consulting with
ORC.
Confidential Business Information (CBI)
The agency must withhold from the public record trade
secrets and commercial and financial information that is subject
to protection under 40 C.F.R. Part 2. However, §104(e)(7) of
CERCLA greatly restricts the assertions of confidentiality claims
by PRPs at CERCLA sites. The agency should attempt to avoid
using CBI in making response action decisions and can do so in
most cases by using other information instead.14 Where the
agency must use CBI in making its decision, 40 C.F.R. Part 2 and
§104(e) (7) of CERCLA will apply and such information should be
placed in the confidential portion of the administrative record
file.
Attorney Work Product
This exclusion applies to documents prepared in anticipation
of possible litigation. The work product privilege covers all
documents prepared by an attorney or under an attorney's
supervision, including reports prepared by a consultant or
program employee. Litigation need not have commenced but it must
be reasonably contemplated. These documents generally relate to
enforcement or defensibility of a decision and are not considered
or relied on in selecting a response action. These documents
should not, therefore, be in the administrative record file.
Attorney-Client Communication
The attorney-client privilege applies to confidential
communications made in connection with securing or rendering
legal advice. „ The privilege is limited to communications where
there was an intention to keep the information confidential.
H
See 40 C.F.R. section 300.810(d); 55 Fed. Reg. 8860.
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OSWER Directive No. 9833.3B.
Personal Privacy
This exemption covers information about individuals in
personnel, medical, and similar files, the disclosure of which
would constitute a clearly unwarranted invasion of personal
privacy. The records must pertain to an individual, and not a
business, to be excluded from the public portion of the
administrative record file under this exemption* Often,
information subject to the protection under the personal privacy
privilege can be redacted from the document and the redacted
version can be placed in the public portion of the record file.
State Secrets
An agency is authorized to exclude from public scrutiny
information which, if released, would harm national security or
interfere with the government's ability to conduct foreign
relations. This privilege could be particularly important where
the PRP is a federal agency or a contractor for a federal agency.
In the case of a federal facility cleanup, an Inter-Agency
Agreement should spell out procedures for asserting this
privilege.
Confidential Informant
Statements obtained from witnesses who have been granted
confidentiality may be privileged.
Information Exempted by Other Statutes
Information specifically exempted from disclosure by a
federal statute need not be part of the public record. The
statute in question must leave no discretion as to the
requirement that matters be withheld from the public or it must
establish particular criteria for withholding or refer to
particular types of matters to be withheld.
I. Guidance Documents
Guidance documents, or portions of guidance documents, that
are considered or relied on in selecting a response action should
be included in the administrative record file for that response
action. Any guidance documents generated for the site for which
the record file is being compiled should be physically included
in the record file. Certain guidance documents, however, do not
have to be kept in the record file. Guidance documents not
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OSWER Directive No. 9833.3B.
generated for the particular site for which the record is being
compiled may be kept in a compendium of guidance documents
maintained at the regional office. [a central Regional
location.]
Each EPA regional office should maintain a compendium of
guidance documents which are frequently used in selecting
response actions. As with an administrative record file, the
compendium of guidance documents must be available to the public,
but only at the regional office. [central Regional location.]
The administrative record file located at or near the site should
contain an index to the compendium of guidance documents. The
Administrative Record Coordinator should maintain and update the
compendium of guidance documents. If a guidance document
maintained in the compendium is considered or relied on when
making a response action decision, the index to the record file
must list the document and indicate its location and
availability. See also Appendix E.
If a guidance document is listed in a bibliography to a
document included in the record file (e.g., listed in the
bibliography to the RI/FS), it need not be listed again in the
index to the record file. In this case, however, the index must
state that documents listed as bibliographic sources might not be
listed separately in the index.
If a guidance document which is not included in the guidance
compendium is considered or relied on in selecting the response
action, the document should be physically included in the record
file. .
J. Technical Literature
Technical literature generated for the site at issue should
be physically included in the administrative record file for that
site, whether or not it is publicly available.
Similarly, technical literature not specifically generated
for the site [at issue] which is not publicly available should
also be included in the site-specific record file. Such
documents include technical journals and unpublished documents
that are not available through the Library of Congress or not
circulated to technical libraries.
15 See 40 C.F.R. section 300.805(a)(2); 55 Fed. Reg. 8860,
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OSWER Directive No. 9833.3B.
Publicly available technical literature not generated for
the site [at issue], however, need not be located at or near the
site or at the regional office or central location [a central
Regional location] if the documents are referenced in the index.
to the record file.16 These documents do not have to be
physically included in the record file, unless requested, because
they are already available to public. Copying such documents
creates a significant burden to the agency and copyright laws may
pose additional barriers to such copying. Examples of publicly
available technical literature include engineering manuals,
groundwater monitoring or hydrogeology textbooks, ATSDR
toxicological profiles, and articles from technical journals.
Computer models and technical databases need not be
physically included in the record file but should be referenced
in the index to the record file and made available upon request.
Printouts or other documents produced from the models and
databases should be physically included in the record file if
such documents contain information which was considered or relied
on in selecting the response action.
K. Legal Sources
Copies of statutes and regulations cited in documents
included in the administrative record need not be included in the
record file if they are readily available to the public. For
example, the NCP and other regulations are easily accessible
since they are published in the Federal Register and the Code of
Federal Regulations.
Copies of the actual standards (statutes or regulations)
comprising federal and state ARARs should be physically included
in the record file if they are not easily accessible. Also,
other federal and state criteria, advisories, and guidance
documents pertinent to the site (i.e., what the Agency refers to
as "TBCs," or standards "to be considered"), may not be easily
accessible. If such documents are cited in an RI/FS, appendix to
the RI/FS, EE/CA, or ROD, those advisories which are not readily
available should be included in the record file.
16 See 40 C.F.R. section 300.805(b)(3); 55 Fed. Reg. 8860.
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OSWER Directive No. 9833.3B.
L. NPL Rulemaking Docket Information
Generally, information included in the National Priorities
List (NPL) rulemaking docket, such as the Hazard Ranking System
(HRS) scoring^ package and comments received on the listing, need
not be included in the administrative record for selection of a
response action. The NPL docket contains information relevant to
the decision to list a site, which may be irrelevant to the
decision on response action selection.
Documents in the NPL docket which contain sampling data or
other factual information which was considered or relied on in
selecting a response action should be included in the record file
if the information is not available already in the record file.
Such information may include early sampling data taken by parties
other than the agency or its contractors (e.g., a State).
M. RCRA Documents
If an action is taken under CERCLA at a site with a history
of Resource Conservation and Recovery Act (RCRA) activity, much
of the information relating to those RCRA activities may be
considered or relied on in making the CERCLA response action
selection. Any relevant RCRA information, particularly
information on waste management and RCRA corrective action at the
site, should be included in the administrative record file (e.g.,
RCRA permit applications, inspection reports, RCRA Facility
Assessment (RFA), RCRA Facility Investigation (RFI), Corrective
Measures Studies (CMS), or responses to RCRA information
requests).
Not all pre-existing RCRA information will be considered or
relied on in selecting a CERCLA response action, but information
on types of wastes, quantity of wastes, and observations of
potential threats gathered during RCRA investigations generally
will be considered and thus should be included [if not contained
elsewhere] in the record file.
N. Post-Decision Information
In all cases, documents generated or received after signing
the decision document should be kept in a post-decision document
file. This file is not part of the administrative record file
and should be maintained at [a central Regional] the regional
office or central location.
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OSWER Directive No. 9833.3B.
In general, this post-decision information [documents
generated or received by the agency after signing the response
action decision document (e.g., ROD or action memorandum, or
final pollution report)] should not be added to the
administrative record file. Since the administrative record
contains the information which [forms the basis for the response
selection] was considered in selecting the response action.
documents generated or received after selecting the response
action are not relevant to that response decision and should not
be included in the record file. Such documents may, however, be
relevant to later response selection decisions and, if so. should
be included in the record file pursuant to section 300.825 of the
NCP. [In limited situations, however, the Agency must include in
the record file documents generated or received after the
decision document is signed.]
Documents kept in the post-decision document file may be
added to the record file in the situations described below:
o Where a decision document does not address or reserves a
significant aspect of a response action decision to be made
at a later date. For example, a decision document that does
not resolve the type of treatment technology. In such
cases, the agency should continue to add documents to the
record file which form the basis for the unaddressed portion
of the decision.
o Where there is a significant change in the selected response
action. Changes that result in a significant difference to
a basic feature of the selected remedial action (e.g.,
timing, ARARs), with respect to scope, performance, or cost
may be addressed in an explanation of significant
differences. [Under §117(c) of CERCLA,] Section 117(c) of
CERCLA states;
(a)fter adoption of a final remedial action plan -
(I) if any remedial action is taken, (2) if any
enforcement action under section 106 is taken, or
(3) if any settlement or consent decree under
section 106 or section 122 is entered into, and if
such action, settlement, or decree differs in any
significant respects from the final plan, the
President or the State shall publish an
explanation of the significant differences and the
reasons such changes were made.
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OSWER Directive No. 9833.3B.
The record file should include the explanation of
significant differences, underlying documentation for the
response action changes, any significant comments from the
public, and Agency responses to any significant comments. A
formal public comment period is not required on an
explanation of significant differences.
Some changes will be so significant that they fundamentally
alter the very nature or basis of the overall response
action. Such changes will require an amended decision
document. The Region will decide whether a change to a
response action is considered a significant or a fundamental
change for purposes of addressing the change (see Chapter 8
of "Interim Final Guidance on Preparing Superfund Decision
Documents: The Proposed Plan and Record of Decision," June
1989, OSWER Directive No. 9355.3-02.)
When the decision document is amended, the amended decision
document, the underlying documentation, any significant
comments from the public, and Agency responses to any
significant comments, should be included in the record file.
ROD amendments will require a formal public comment period.
Where comments containing significant information are
generated or received after the close of the public comment
period. The Agency must consider comments submitted after
the public comment period only to the extent that the
comments contain significant information not contained
elsewhere in the record file which could not have been
submitted during the public comment period and which
substantially support the need to consider significantly
altering the response action. Documents meeting this test
should be included in the record file, along with the
Agency's responses to the significant comments, whether or
not such information results in a change to the selected
decision. In this case, the comments, the underlying
documentation, and Agency responses to such comments, should
be included in the record file.
Post-decision information may also be added to the record
file if the Agency holds public comment periods after the
selection of the response action. The Agency may hold
additional public comment periods or extend the time for
submission of public comment on any issue concerning
response selection. Such comment should be limited to the
issues for which the Agency requested additional comment.
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BOLD denotes deleted text
UNDERLINE denotes added text
OSWER Directive No. 9833.3B.
All responsive [significant] comments submitted during such
comment periods, along with any public notices of the
comment period, transcripts of public meetings, and Agency
responses to the comments, should be placed in the record
file.
IV. INVOLVEMENT OF OTHER PARTIES
A. States
A.I. State Involvement on Federal-Lead Sites
The administrative record for a Federal-lead site must
reflect the [opportunity for involvement in the selection of the
response action afforded the particular State.] state's
opportunity to be involved in selecting the response action. The
record for a remedial action should include documents that
reflect at least the following state participation or the
opportunity for state participation:
o Letter to state requesting identification of ARARs and the
final response from state identifying ARARs (and
certification from the state);
o Comments, or the opportunity to comment^, [or comments] on a
proposed finding or decision to select a [remedial] response
action not attaining a level or standard of control at least
equivalent to a [legally applicable or relevant and
appropriate standard, requirement, criteria, or limitation]
state ARAR (as mandated by §121(d)(4) of CERCLA);
o Comments, or the Opportunity to comment^, [or comments] on
the final draft RI/FS, the proposed plan and EPA responses
to the comments;
o Significant post-decision [state] comments by the state and
EPA responses to the comments (place in the post-decision
document file for possible inclusion in the record file -
see section III.N. at page 44).
The administrative record for a removal action should
reflect any state participation, especially any state comments
and EPA responses to the comments.
The record file should only include final state comments.
Any preliminary deliberations between the state and EPA relevant
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BOLD denotes deleted text
UNDERLINE denotes added text
OSWER Directive No. 9833.3B.
to the response selection need not be part of the record file if
superseded by documentation of the state's final position.
The governing body of an Indian tribe should be afforded the
same treatment as a state in accordance with §126 of CERCLA.
A.2. Federal Involvement in State-Lead Sites
Where a state has been officially designated the lead agency
for a CERCLA site, the state must compile the administrative
record for that site in accordance with section 113(k) of CERCLA
and section 300.800 of the NCP. Since EPA has ultimate
responsibility for both the selection of a response action (EPA
signs the ROD) and the record on which that response action is
based, EPA must participate in compiling and maintaining the
record. In such cases, EPA must assure that the record file
forms a complete basis for the selection of the response action.
The state as lead agency must maintain the record file at a
state office (e.g., the state's central environmental agency
office) and at or near the site. At a minimum, the state as lead
agency also must transmit a copy of the index, RI/FS work plan,
the RI/FS released for public comment, the proposed plan, and any
public comments received on the RI/FS and the proposed plan to
the appropriate EPA Regional office.17 These documents should be
transmitted to the Agency as they are generated or received.
Transmittal of the index will not suffice. In addition, other
documents may be requested by EPA on a case-by-case basis.
The Superfund Memorandum of Agreement (SMOA), or Cooperative
Agreement (CA), must address the administrative record
requirements. The following language should be included in the
SMOA or CA where the state has been officially designated the
lead agency for a CERCLA site:
The state must compile and maintain the administrative
record upon which the selection of the [remedial,
removal] action is based. The compilation and
maintenance of the record must follow 40 C.F.R. Part
300. Subpart I. [be, to the extent feasible, in
accordance with] and EPA guidance on the administrative
record. The administrative record must be located at
the state [environmental agency] office, and at or near
17
See 40 C.F.R. section 300.800(c); 55 Fed. Reg. 8859,
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BOLD denotes deleted text
UNDERLINE denotes added text
OSWER Directive No. 9833.3B.
the site. In addition, the state must submit copies of
the index, the RI/FS workplan, the RI/FS released for
public comment, the proposed plan, and any public
comments received on the RI/FS and proposed plan to the
EPA Regional office, as they are added to the
administrative record file. In addition, the state
must submit other documents that are requested by EPA.
[other documents may be requested by EPA on a case-by-
case basis.] The state shall comply with §113 of
CERCLA and any applicable regulations. EPA may require
the retention of other documents for cost recovery
purposes.
The record file compiled by the state should reflect EPA's
participation, comments, concurrence, and disagreements at the
same stages as are required for state involvement in a Federal-
lead site. The state must place in the record file any documents
submitted by EPA for inclusion in the record file.
B. Federal Facilities
Federal agencies have the responsibility, pursuant to
Executive Order 12580, to establish the administrative record for
federal facilities under their jurisdiction, custody, or control
where .using CERCLA authority for a response action. The record
file for a federal facility must include all documents considered
or relied on in selecting a response action, including documents
submitted by EPA on the selection of the response action. The
federal agency must comply with all NCP (see Appendix M) and
CERCLA requirements in compiling and maintaining the record,
including the minimum public participation requirements in §§113
and 117 of CERCLA.18
The federal agency must maintain the record file at or near
the site and ensure easy public access to the record file, if,
for example, a site is a Department of Defense facility, the
record file should be housed in a location which does not require
military clearance for access. The federal agency should keep a
complete copy of the record file at a location within the federal
agency office comparable to an EPA Regional office.
At NPL sites and any other site where EPA is involved in
selecting a response action at a federal facility, EPA must
See 40 C.F.R. section 300.800(b); 55 Fed. Reg. 8859.
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BOLD denotes deleted text
UNDERLINE denotes added text
OSWER Directive No. 9833.3B.
participate in compiling and maintaining the record. In such
cases, EPA must assure that the record file forms a complete
basis for the selection of the response action. At'a minimum,
the federal agency must transmit a copy of the index, the RI/FS
workplan, the RI/FS released for public comment, the proposed
plan, and any public comments received on the RI/FS and proposed
plan to the appropriate EPA Regional office. These documents
should be transmitted to the Agency as they are generated.
Transmittal of the index will not suffice. In addition, other
documents may be requested by EPA on a case-by-case basis.
Inter-Agency Agreements (lAGs) should spell out procedures for
compiling and maintaining the record.
C. ATSDR
Participation in the selection of a response action by the
Agency for Toxic Substance and Disease Registry (ATSDR) should be
reflected in the administrative record. The record file must
include the initial and subsequent health assessments and any
other information EPA solicits and obtains from ATSDR which EPA
considers or relies on in its selection of a response action.
Draft versions of the health assessment and other draft
documents upon which ATSDR comments should not be included in the
record file. If, however, EPA solicits comments from ATSDR on a
draft document such as a draft work plan or RI report, and
receives formal comments from ATSDR which EPA considers or relies
on in selecting a response action, then the document and comments
should be included in the record file.
In the event that the ATSDR health assessment and EPA's risk
assessment appear inconsistent, a document explaining the
difference should be generated and placed in the record file.
D. Natural Resources Trustees
Section 122(j)(1) of CERCLA requires that the Agency give
notice to the Natural Resources Trustee of a release or
threatened release of any hazardous substance which may have
resulted in damages to natural resources. The administrative
record file must include the Agency's notice to the Natural
Resources Trustee, and any subsequent final communications (e.g.,
a release or final report). In addition, any factual information
provided by the Natural Resources Trustee which the Agency
considers or relies on in selecting a response action should be
included in the record file.
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BOLD denotes deleted text
UNDERLINE denotes added text
OSWER Directive No. 9833.3B.
In the event that the Natural Resources Trustee's damage
assessment and EPA's risk assessment appear inconsistent, a
document explaining the difference should be generated and placed
in the record file.
V.
DISCLAIMER
The policies and procedures established in this document are
intended solely for the guidance of employees of the U.S.
Environmental Protection Agency. They are not intended and
cannot be relied upon to create any rights, substantive or
procedural, enforceable by any party in litigation with the
United States. EPA reserves the right to act at variance with
these policies and procedures and to change them at any time
without public notice.
VI. FURTHER INFORMATION
For further information concerning this memorandum, please
contact Deborah Lebow in the Office of Waste Programs Enforcement
at FTS (202) 475-6770.
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GLOSSARY
Administrative Record; as used in this guidance, the completed
compilation of documents the Agency considered or relied on in
selecting a response action.
Administrative Record File; as used in this guidance, the
ongoing collection of documents the Agency anticipates will
constitute the administrative record when the selection of
response action is made.
ARAR; applicable or relevant and appropriate requirements (see
§121(d) of CERCLA).
ATSPR: Agency for Toxic Substance and Disease Registry.
CA: cooperative agreement (entered into with a state or local
government to transfer funds to conduct response activities).
CBI; confidential business information.
CERCLA; Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 as amended by the Superfund Amendments and
Reauthorization Act of 1986 (also known as Superfund).
C.F.R.; Code of Federal Regulations.
CMS; corrective measure study (RCRA corrective action document,
equivalent to an FS).
CRC: Community Relations Coordinator.
CRP: community relations plan.
Document; as used in this guidance, includes writings, drawings,
graphs, charts, photographs, and data compilation from which
information can be obtained. It does not, however, include
physical samples.
DOJ; Department of Justice.
i
EE/CA: engineering evaluation/cost analysis (removal document).
EPA; United States Environmental Protection Agency.
ESP; Environmental Services Division.
Explanation of Significant Differences; post-ROD document
described in §117(c) of CERCLA.
FOIA; Freedom of Information Act.
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FSP; field sampling plan.
HRS; Hazard Ranking System.
TAG; inter-agency agreement (made with a federal agency).
Lead Agency: the agency that provides the OSC or RPM to plan and
implement a response action under the NCP.
NCP: National Oil and Hazardous Substances Contingency Plan,
proposed revisions published on December 21,1988 (53 FR 51394).
NPL: National Priorities List.
OECM: EPA Office of Enforcement and Compliance Monitoring.
OERR; EPA Office of Emergency and Remedial Response.
OIRM; EPA Office of Information Resources Management.
Operable Unit; a discrete action that comprises an incremental
step toward comprehensively addressing site problems (see section
300.5 of the proposed NCP).
ORC: EPA Office of Regional Counsel..
OSC; On-Scene Coordinator (project manager for a removal action)
OSWER; EPA Office of Solid Waste and Emergency Response.
OWPE; EPA Office of Waste Programs Enforcement.
PA; preliminary assessment.
PRP; potentially responsible party.
OAPP; quality assurance project plan.
PA; remedial action.
RCRA; the Solid Waste Disposal Act as amended by the Resource
Conservation and Recovery Act.
RD; remedial design.
RI/FS; remedial investigation/feasibility study.
RFA; RCRA facility assessment (RCRA document, equivalent to a
PA/SI).
RFI; RCRA facility investigation (RCRA corrective action
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document, equivalent to an Rl).
ROD: Record of Decision (documents the selection of a remedial
action).
RPM: remedial project manager (project manager for a remedial
action).
SAP: sampling and analysis plan.
SARA; Superfund Amendments and Reauthorization Act of 1986 (see
CERCLA above).
Site File; the file containing all site documentation.
SI; site investigation.
SMOA: Superfund memorandum of agreement
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APPENDIX A
SECTION 113 (J) OF CERCLA
(j) JUDICIAL REVIEW.—
. (1) LiMiTATiON.^-In any judicial action under this Act, judi-
cial review of any issues concerning the adequacy of any re-
sponse action taken or ordered by the President shall be limit-
ed to the administrative record. Otherwise applicable princi-
ples of administrative law shall govern whether any supple-
mental materials may be considered by the court.
(2) STANDARD.—In considering objections raised in any judi-
cial action under this Act, the court shall uphold the Presi-
dent's decision in selecting the response action unless the ob-
jecting party can demonstrate, on the administrative record,
. that the decision was arbitrary and capricious or otherwise not
in accordance with law.
(3) REMEDY.—If the court finds that the selection of the re-
sponse action was arbitrary and capricious or otherwise not in
accordance with law, the court shall award (A) only the re-
sponse costs or damages that are not inconsistent with the na-
tional contingency plan, and (B) such other relief as is consist-
ent with the National Contingency Plan.
(4) PROCEDURAL ERRORS.—In reviewing alleged procedural
errors, the 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 signifi-
cantly changed had such errors not been made.
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SECTION 113 (K) OF CERCLA
(k) ADMINISTRATIVE RECORD AND PARTICIPATION PROCEDURES.—
(1) ADMINISTRATIVE RECORD.—The President shall establish
an administrative record upon which the President shall base
the selection of a response action. 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.
(2) PARTICIPATION PROCEDURES.—
(A) REMOVAL ACTION.—The President shall promulgate
regulations in accordance with chapter 5 of title 5 of the
United States Code establishing procedures for the appro-
priate participation of interested persons in the develop-
ment of the administrative record on which the President
will base the selection of removal actions and on which ju-
dicial review of removal actions will be based.
(B) REMEDIAL ACTION.—The President shall provide for.
the participation of interested persons, including potential-
ly responsible parties, in the development of the adminis-
trative record on which the President will base the selec-
tion of remedial actions and on which judicial review of re-
medial actions will be based. The procedures developed
under this subparagraph shall include, at a Tninimmn,
each of the following:
(i) Notice to potentially affected persons and the
public, which shall be accompanied by a brief analysis
of the plan and alternative plans that were consid-
ered.
(ii) A reasonable opportunity to comment and pro-
vide information regarding the plan.
(iii) An opportunity for a public meeting in the af-
fected area, in accordance with section 117(aX2) (relat-
ing to public participation).
(iv) A response to each of the significant comments,
criticisms, and new data submitted in written or oral
presentations.
(v) A statement of the basis and purpose of the se-
lected action.
For purposes of this subparagraph, the administrative
record shall include all items developed and received
under this subparagraph and all items described in the
second sentence of section 117(d). The President shall pro-
mulgate regulations in accordance with chapter 5 of title 5
of the United States Code to carry out the requirements of
this subparagraph.
(O INTERIM RECORD.—Until such regulations under sub-
paragraphs (A) and (B) are promulgated, the administra-
tive record shall consist of all items developed and re-
ceived pursuant to current procedures for selection of the
response action, including procedures for the participation
of interested parties and the public. The development of an
administrative record and the selection of response action
under this Act shall not include an adjudicatory hearing.
(D) POTENTIALLY RESPONSIBLE PARTIES.—The President
shall make reasonable efforts to identify and notify poten-
tially responsible parties as early as possible before selec-
tion of a response action. Nothing in this paragraph shall
be construed to be a defense to liability.
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APPENDIX B
MODEL FILE STRUCTURE
This model file structure may be used to compile an
administrative record file for a remedial action, a removal action,
or a combination of both remedial and removal actions. If the
record documents a remedial action decision, section 2 of the file
will contain only those removal action documents which (a) predate
the remedial record of decision and (b) are relevant to the
selection of the remedial action. If the record documents a removal
action decision, sections 3, 4, and 5 of the file will contain only
those remedial action documents which (a) predate the removal action
memorandum and (b) are relevant to the selection of the removal
action.
Justification is unnecessary for file categories without any
documents. Those categories should be left out of the index.
A document should be filed in only one category, even if it
falls into more than one category. It may be referenced in another
category. If necessary, additional subcategories may be developed
to accommodate documents not falling in any of the defined
subcategories. Avoid adding categories of miscellaneous documents.
The correspondence subcategory can include comments and
responses specific to the category. If the comments and responses
are general in nature or address more than one category, they may be
included in the public participation category.
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INDEX [FIRST DOCUMENT]
1.0 SITE IDENTIFICATION
1.1 Background - RCRA and other information
1.2 Notification/Site Inspection Reports
1.3 Preliminary Assessment (PA) Report
1.4 Site Investigation (SI) Report
1.5 Previous Operable Unit Information
2.0 REMOVAL RESPONSE
2.1 Sampling and Analysis Plans
2.2 Sampling and Analysis Data/Chain of Custody Forms
2.3 EE/CA Approval Memorandum (for non-time-critical removals)
2.4 EE/CA
2,5 Action Memorandum
2.6 Amendments to Action Memorandum
3.0 REMEDIAL INVESTIGATION (RI)
3.1 Sampling and Analysis Plan (SAP)
3.2 Sampling and Analysis Data/Chain of Custody Forms
3.3 Work Plan
3.4 RI Reports
4.0 FEASIBILITY STUDY (FS) -
4.1 ARAR Determinations
4.2 FS Reports
4.3 Proposed Plan
4.4 Supplements and Revisions to the Proposed Plan
5.0 RECORD OF DECISION (ROD)
5.1 ROD
5.2 Amendments to ROD
5.3 Explanations of Significant Differences
6.0 STATE COORDINATION
6.1 Cooperative Agreements/SMOAs
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6.2 State Certification of ARARs
7.0 ENFORCEMENT
7.1 Enforcement History
7.2 Endangerment Assessments
7.3 Administrative Orders
7.4 Consent Decrees
7.5 Affidavits
7.6 Documentation of Technical Discussions with PRPs on
Response Actions
7.7 Notice Letters and Responses
8.0 HEALTH ASSESSMENTS
8.1 ATSDR Health Assessments
8.2 Toxicological Profiles
9.0 NATURAL RESOURCE TRUSTEES
9.1 Notices Issued
9.2 Findings of Fact
9.3 Reports
10.0 PUBLIC PARTICIPATION
10.1 Comments and Responses
10.2 Community Relations Plan
10.3 Public Notice(s) (Availability of the Administrative Record
File, Availability the Proposed Plan, Public Meetings)
10.4 Public Meeting Transcripts
10.5 Documentation of Other Public Meetings
10.6 Fact Sheets and Press Releases
10.7 Responsiveness Summary
10.8 Late Comments
11.0 TECHNICAL SOURCES AND GUIDANCE DOCUMENTS
ll.l EPA Headquarters Guidance
11.2 EPA Regional Guidance
11.3 State Guidance
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11.4 Technical Sources
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APPENDIX C
MODEL INDEX
Attached is an excerpt of the Index of documents included in
the Administrative Record for the Love Canal site. The Index lists
the documents according to the EPA file structure (category number).
The Index includes the following information .fields:
DOCUMENT NUMBER..
TITLE,
AUTHOR,
RECIPIENT.
V DATE,
TYPE,
V CATEGORY.
indicates the first and last page numbers of
the document. Both page numbers will be the
same for one-page documents. In this
particular index, the document number
consists of a three letter site code
followed by microfilm reel and frame
numbers.
indicates the title or an enhanced
description of the document in parentheses.
indicates the author or primary originator
and the author's corporate affiliation.
indicates the addressee or primary recipient
and the addressee's corporate affiliation.
indicates document date by month/day/year.
/ / means no date was available.
indicates the document type.
indicates the EPA file structure number.
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APPENDIX D
MODEL POSITION DESCRIPTION FOR ADMINISTRATIVE RECORD COORDINATOR
INTRODUCTION .
The incumbent serves as an Administrative Record Coordinator in
one of the Regional offices of the Environmental Protection Agency
(EPA). [Each Region may want to add an introduction to Superfund
and the Regional office here.] The incumbent is responsible for
compiling and maintaining administrative record files for CERCLA
(Superfund) response action decisions.
Section 113(k) of CERCLA requires the establishment of an
administrative record upon which the selection of a response action
is based. Such a record is a compilation of all documents which the
Agency considered or relied on in making its response action
decision. Judicial review of any issues concerning the adequacy of
any response action decision is limited to the administrative
record. Public participation in the development of the record is
required by law.
Establishment of thorough and complete administrative records is
essential to EPA's Superfund program. Administrative records which
include public participation and withstand judicial scrutiny allow
EPA to meet its goals and objectives.
The incumbent will be responsible for compiling and maintaining
administrative records for large numbers of Superfund sites. Each
record requires coordination with many people including: Federal :
staff, state and local officials, private contractors, the general
public and potentially responsible parties. Further
responsibilities include deliberations over which materials to
include in each record and requirements for dealing with privileged
materials.
MAJOR DUTIES AND RESPONSIBILITIES
1. The incumbent is responsible for compiling and maintaining all
of the administrative records for selection of CERCLA response
actions for a Regional office of the EPA. The incumbent must
have complete knowledge of all rules and procedures governing
development of the administrative record files.
2. Receives and reviews all documents submitted by the Remedial
Project Manager (RPM), On-Scene Coordinator (OSC), Office of
Regional Counsel (ORC) and other appropriate staff for inclusion
in the administrative record files. The incumbent will
coordinate with staff responsible for deciding what documents
are included in the record and will arrange for adding documents
to the record file.
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3. Compiles the administrative record file for each CERCLA
response action. This includes logging the receipt of each
document, maintaining a central master file of documents,
redacting information from privileged documents as directed
by ORC, maintaining any privileged portions of each record
using Agency security measures, arranging for copying of
documents in each record and transmitting the documents to
appropriate repositories.
4. Coordinates the compilation of the administrative record
files with state and federal agencies. This includes
receiving records maintained by state and federal agencies
and notifying appropriate personnel of these records for
their review.
5. Maintains and updates (monthly) an index of each
administrative record file in conformance with Agency
guidelines.
6. Ensures public access to administrative record files. This
includes notifying the public of the availability of the
record, making the record available for public inspection,
coordinating with personnel at the facility where the record
is located, maintaining an adequate copying facility and
maintaining a log of persons reviewing documents. The
incumbent will have to respond to phone calls and visitors
wanting information on and from the record. These functions
will be coordinated with the Office of Public Affairs and
Superfund Community Relations Coordinators.
7. Maintains the Regional Superfund Central Library of guidance
documents and technical references.
CONTROLS OVER WORK
The incumbent works under the general supervision of the
[Hazardous Waste Branch Chief]. An administrative record is
reviewed and certified for litigation by a person designated by
the Regional Administrator.
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APPENDIX E
COMPENDIUM OF CERCLA
RESPONSE SELECTION
GUIDANCE DOCUMENTS
USERS MANUAL
U. S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF WASTE PROGRAMS ENFORCEMENT
MAY 1989
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TABLE OF CONTENTS
Section .
1.0 INTRODUCTION (l)
2.0 OVERVIEW OF COMPENDIUM USE (2)
2.1 USE BY EPA PERSONNEL (2)
2.2 USE BY THE PUBLIC £)
3.0 STRUCTURE OF THE COMPENDIUM . (3)
3.1 FILE STRUCTURE (3)
3.2 INDEX STRUCTURE t3)
4.0 UPDATING THE COMPENDIUM (5)
4.1 REGIONAL INPUT £)
4.2 KEEPING THE COMPENDIUM CURRENT , (6)
LIST OF TABLES
Table Page
3-1 COMPENDIUM CATEGORIES AND NUMBER SERIES (4)
Appendix
Rl
COORDINATORS
(A"] REGIONAL COMPENDIUM-LOCATIONS AND ADMINISTRATIVE RECORD
(f) COMPENDIUM OF CERCLA RESPONSE SELECTION GUIDANCE DOCUMENTS
INDEX
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1.0 INTRODUCTION
This manual describes how to use the "Compendium of CERCLA Response Selection
Guidance Documents" (Compendium). Each U.S. Environmental Protection Agency (EPA)
Regional Office maintains a compendium of guidance documents frequently used during
development and selection of response actions under the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA).
EPA Headquarters used several sources to develop the initial Compendium. These sources
included a pamphjet titled "Selected Technical Guidance for Superfund Projects" (OSWER
Directive 9200.7-01); the OSWER Directive System; the Superfund, Resource Conservation and
Recovery Act (RCRA), and Enforcement dockets; the Hazardous Waste Collection Database; and
any existing regional compendiums. The documents in the Compendium are referenced in
administrative records for decisions on selection of response actions.
The administrative record described here is the body of documents that form the basis for
selection of a CERCLA response action. Establishment of the administrative record is required
by §113(k) of CERCLA. An administrative record is the compilation of documents considered or
relied on by EPA in making a decision. Documents that EPA anticipates will be included in the
administrative record when the decision on a response action selection is made, are referred to as
the "administrative record file." Guidance documents, or portions of guidance documents, that
are considered or relied on in selecting a CERCLA response action should be part of an
administrative record file.
Certain frequently used guidance documents may be referenced in the index to an
administrative record but not physically included in the administrative record file. The reference
should indicate the title and location of any documents included in the administrative record but
maintained in the Compendium, which is kept at a central regional location. If a guidance
document that is not listed ic the Compendium is considered or relied on in selecting the response
action, the document must be physically included in the administrative record file. The
Compendium hdpe reduce the burden of copying and storing multiple copies of frequently used
guidance documents.
Section 2.0 of this manual briefly discusses use of the Compendium by EPA personnel and
the public. Section 3.0 discusses the Compendium's file and index structure. Documents in the
Compendium are filed in three-ring binders and listed on an index which is generated by and
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maintained on a computer database. Procedures for updating the Compendium are presented in
Section 4.0.
2.0 OVERVIEW OF COMPENDIUM USE
The Compendium is intended for use by. two groups: EPA personnel, during the process
of response action selection and administrative record development, and the public, for review of
documents referenced in the index to an administrative record.
The user should note that although the term "guidance" is often used in discussing the
Compendium, it does not imply that only guidance documents are included. The documents may
also be policies, memoranda, clarifications, case studies, manuals, handbooks, reports, and other
documents used in the selection of CERCLA response actions.
2.1 USE BY EPA PERSONNEL
EPA personnel use the Compendium primarily to reference frequently used guidance
documents that may be maintained in the Compendium rather than physically included in each
administrative record file. The index must indicate which documents are physically located in
the Compendium and must specify the location and accessibility of the Compendium. The index
should also reference only the specific documents in the Compendium that were considered or
relied on for the site for which the record is being compiled. The index should not reference the
entire Compendium.
2.2 USE BY THE PUBLIC
As with any unrestricted document included in a record, the Compendium documents are
accessible for public review. When EPA publishes a notice of availability of an administrative
record file, that notice will include the location of the Compendium. The Compendium will be
available for pubtic viewing at a central regional establishment (for example, the EPA Regional
- V
Office), and not at or near the site for which the record is being compiled. (See Appendix A for
a list of the location of each regional copy of the Compendium and the names of the Regional
Administrative Record Coordinators.)
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3.0 STRUCTURE OF THE COMPENDIUM
Currently, the Compendium is organized into 10 categories. An overview of the file
structure is presented below, as well as a discussion of the index that identifies the documents
included in the Compendium. This section also discusses the data elements identified in the
index. The data elements provide vital information on the documents included in the
Compendium and are contained in a database used to compile the Compendium and generate the
index.
3.1 FILE STRUCTURE
The Compendium is structured according to 10 major categories that generally reflect the
various components of a response action selection under CERCLA. Table 3-1 lists the current
Compendium categories. The documents are further grouped into subcategories that indicate
their more specific nature, when applicable. For example, the remedial investigation/feasibility
study (RI/FS) section of the Compendium is broken down into more specific subcategories to
identify the wide range of RI/FS documents available. When the documents apply to multiple
categories, secondary references are provided in the Compendium index.
Each document has been assigned a unique four-digit document number. The bound
documents contained in each category are arranged numerically. When a user wants to access a
document, he or she will find the document filed according to the assigned number. The four-
digit number series assigned to each category are_also listed in Table 3-1.
3.2 INDEX STRUCTURE
When an administrative record index refers to a document contained in the Compendium,
that document is also identified in the Compendium index. The index, contained as the first
document in the Compendium, provides the information necessary to identify and locate the
desired docum«Ait (For a copy of the current Compendium index, see Appendix B.)
Because in most cases the user will know the title of the document rather than the number
assigned, the index lists the documents under each category in alphabetical order. An
alphabetical listing of secondary references follows the primary documents listed under each
category.
L3)
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TABLE 3-1
COMPENDIUM CATEGORIES AND NUMBER SERIES
CATEGORIES NUMBER SERIES
Index 0000
Pre-Remedial 0001-0999
Removal Action 1000-1999
Remedial Investigation/ 2000-2999
Feasibility Study
General 2000-2099
RI Data Quality/Site &
Waste Assessment 2100-2199
Land Disposal Facility Technology 2200-2299
Other Technologies 2300-2399
Groundwater Monitoring &
Protection 2400-2499
ARARs1 3000-3999
Water Quality 4000-4999
Risk Assessment 5000-5999
Cost Analysis 6000-6999
Community Relations 7000-7999
Enforcement 8000-8999
Selectio* of Remedy/Decision
DocuaMto 9000-9999
1 Applicable or Relevant and Appropriate Requirements
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The Compendium index is maintained on a database using dBASE III Plus software. This
database contains numerous data elements that store the information distinguishing and grouping
each document into the appropriate categories. The database is currently maintained at EPA
Headquarters.
Maintaining the index in a database allows the information to be organized in different
ways. For example, should the Region need an index that is sorted entirely in alphabetical order
by title, chronologically by document date, numerically by the number assigned each document,
etc., EPA Headquarters can generate and forward such an index. The,data elements of the
Compendium database, as identified on the index, are included in Appendix B.
4.0 UPDATING THE COMPENDIUM
The Compendium is designed to allow for the periodic addition of newly developed policy
or guidance documents. Updates to the Compendium are necessary in the following cases: (1)
EPA releases relevant new guidance, policy, reports, etc.; (2) regional staff find additional
documents that should be included in the Compendium; and (3) existing documents are revised or
superseded. EPA Headquarters will continue to monitor the information sources used to develop
the initial Compendium for new or revised documents that may qualify for inclusion in the
Compendium. . •
Guidance documents identified for addition to the Compendium will be reviewed and
relevant information will be entered into the existing database. After the database is updated, a
new index will be generated and sent to each Regional Office. This new index will replace any
previous indices. Hard copies of the additional documents .will be sent to each region for
inclusion in the Compendium. The revised index will indicate the category for each new
document.
4.1 REGIONAL INPUT
Parties involved in the response action selection process, as well as Administrative Record
Coordinators, may find documents that are frequently included in administrative records but are
not referenced in the Compendium. In such cases it may be desirable to include the documents
in the Compendium as part of the updating process. However, since the Compendium is designed
to be nationally applicable, only documents used frequently in different regions will be included.
Any region-specific document should be maintained in separate regional files and not in the
Compendium.
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4.2 KEEPING THE COMPENDIUM CURRENT
Once a document is included in the Compendium, it will remain in the Compendium to
maintain the integrity of any record that refers to it. However, documents contained in the
Compendium may be revised in the future to reflect changes, for example, changes in policy,
technology, or law. The most current version of these documents will be added to the
Compendium, as appropriate, so that they will be available for the administrative record process.
Although no document included in the Compendium will ever be replaced or removed
once an administrative record index refers to it, those documents that are superseded will be
flagged and identified on a separate index (superseded index) attached to the Compendium's main
index. The superseded index will also identify the corresponding revised version added to the
Compendium to indicate the new document that should be used.
Response action selections frequently rely bo technical data generated at Superfund sites
across the country. Such data is often maintained on national databases. Depending on their use
and availability, certain of these databases may be included in the Compendium. For example,
the Public Health Risk Evaluation Database (PHRED) is part of the Compendium. PHRED is
stored on two floppy diskettes that are regularly updated as additional information becomes
available. Whenever updated PHRED diskettes are generated, they will be added to the
Compendium. Those diskettes that were previously included will also remain in the Compendium'
and will be identified on the superseded index.
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(APPENDIX
REGIONAL COMPENDIUM LOCATIONS AND ADMINISTRATIVE RECORD COORDINATORS
Region
I
II
III
IV
VI
Address
90. Canal Street
Boston, MA 02203
60 Westview Street *
Lexington, MA 02173
26 Federal Plaza
New York, NY 10278
Woodbridge Avenue *
Raritan Depot - Bldg 10
Edison, NJ 08837
841 Chestnut Street
Philadelphia, PA 19107
345 Courtland Street, N.E.
Atlanta, GA 30365
230 South Dearborn Street
Chicago, IL 60604
1445 Ross Avenue
12th Floor, Suite 1200
Dallas, TX 75270
Coordinator/PH *
1. Remedial
2. Removal
1. Diane Kelley
(617)573-1672
FTS 833-1672
2. Pam Bruno
(617)860-4309
1. Jennie Delcimento
(212)264-8676
FTS 264-8676
2. Mark Pane
(201)321-6813
FTS 340-6813
1. Margaret Leva
(215)597-3037
FTS 597-3037 .
2. Dennis Carney
(215)597-0992
FTS 597-0992
1. Charlotte Williams
(404)347-2930
FTS 257-2930
2. Jan Rogers
(404)347-3931
FTS 257-3931
1. Susan Swales
(312)886-7336
FTS 886-7336
2. Pam Schafer
(312)886-2120
FTS 886-2120
1. Karen Witten
(214)655-6735
FTS 255-6735
2. JoAnn Woods
(214)655-2270
FTS 255-2270
The Compendium was initially distributed to remedial Administrative Record
Coordinators only. Copies may not be located at this address.
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Region
Address
Coordinator/PH #
1. Remedial
2. Removal
VII
VIII
IX
726 Minnesota Avenue
Kansas City, KS66101
25 Funston Road *
Kansas City, KS66115
999 18th Street
Suite 500
Denver, CO 80202
215 Fremont Street
San Francisco, CA 94105
1200 Sixth Avenue
Seattle, WA 98101
1. Maureen Hunt
(913)236-2856
FTS 757-2856
2. Helen Bennett
(913)236-3881
FTS 757-3881
1. Carol Macy
(303)293-1281
FTS 564-1281
2. Carol Pokorny
(303)294-7638
FTS 564-7638
1. Thomas Mix (acting)
(415)974-7414
FTS 454-7414
2. Same
1. Lynn Williams
(206)442-2121
FTS 399-2121
2. Same
The Compendium was initially distributed to remedial Administrative Record
Coordinators only. Copies may not be located at this address.
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(
APPENDIX
COMPENDIUM OF CERCLA
RESPONSE SELECTION
GUIDANCE DOCUMENTS
INDEX
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TABLE OF CONTENTS
Number Series'
Category - Subcategorv
Pre-Remedial
Removal Action
RI/FS - General .
RI/FS - RI Data Quality/Site & Waste Assessment
RI/FS - Land Disposal Facility Technology
RI/FS - Other Technologies
RI/FS - Ground-Water Monitoring & Protection
ARARs
Water Quality
Risk Assessment
Cost Analysis
Community Relations
Enforcement
i
-*"
Selection of lUiaedy/Decision Documents
Data Element Definitions
List of Organizational Abbreviations and Acronyms Identified in the Index
*The range for each number series identified represents the numbers assigned to those documents
currently in the Compendium.
0001-0002
1000-1008
2000-2012
2100-2119
2200-2212
2300-2320
2400-2408 .
3000-3005
4000-4003
5000-5015
6000-6001
7000-7000
8000-8001
9000-9001
^_a^^^
1
1
2
2
4
5
7
8
9
9
11
11
12
12
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