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                UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                           WASHINGTON, D.C. 20460
                     DEC 21 1995
                                                            OFFICE OF
                                                      SOLID WASTE AND EMERGENC
                                                            RESPONSE
 MEMORANDUM
                                        OSWER Directive  9355.7-03A
 SUBJECT:

 FROM:



 TO:
PURPOSE
          Second Supplemental  Five-Year^-Revi^s^Guide
                                      S0 "
          Stephen D.  Luftig, Director  (JtA*4^*
          Office of Emergency  and  Remedial Response

          Director, Office  of  Site Remediation and Restoration
            Region I
          Director, Emergency  and  Remedial Response Division
            Region II
          Director, Hazardous  Waste Management Division
            Regions III,  IX
          Director, Waste Management Division
            Region IV
          Director, Superfund  Division
            Regions V, VI,  VII
          Assistant Regional Administrator,  Office of Ecosystems
          Protection and Remediation
            Region VIII
          Director, Environmental  Cleanup Office
            Region X
     Attached is the Second Supplemental Five-Year Review Guidance
document.  This  second supplement implements OSWER's  response to an
OIG audit of the Five-Year Review process.   OSWER agreed to further
clarify 1) what is meant by "on-going presence"  at a site; 2)  what
is considered to be a "recent"  site visit;  and 3) items which need
to be documented:   (a) milestones used to implement recommendations
contained  in. five-year  reviews,  (b)   who  has  responsibility to
perform each  recommendation and,  (c)   which  agency  hai  oversight
authority.

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ISSUES/CONCERNS

     At this time, we face much uncertainty regarding our budget.
Due to resource constraints we are limited in the activities that
we can now perform.  Therefore, it is important to~ consider ways in
which we can leverage our resources  to complete five-year reviews.
For example,  consider the possibility  of  re-directing available
resources or using PRPs, as described in the guidance.

QUESTIONS

     If  you should  have any  questions regarding  this guidance
document, please contact Carol Bass  of. my staff at  (703) 960-2788.
                  2    S. '"              :
Attachment

cc:  Barry Breen, OFFE
     Chris Sebastian, Region 2 Five-Year Review Coordinator
     Jennifer Wendell, Region 5 Five-Year Review Coordinator
     Norval Schoenhals, Region 8 Five-Year Review Coordinator
     Tina Lovingood, OIG

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                            Attacljment


                                        OSWER Directive 9355.7-03A


 SECOND SUPPLEMENTAL FIVE-YEAR REVIEW GUIDANCE


 PURPOSE
      This document has three purposes.   The first is  to
 supplement guidance to previous Environmental Protection Agency
 (EPA)  directives on five-year reviews.   The second is to
 encourage Regions to leverage resources by using potentially
 responsible parties (PRPs)  to provide information for five-year
 reviews.   The third is to remind Regions that five-year reviews
 should include a signed EPA determination of whether  a remedy
 remains protective of human health and the environment.

 BACKGROUND
      NCP requirements.  Section 300.430 (f) (4) (ii) of the National
 Oil  and Hazardous Substances Pollution Contingency Plan (NCP),  40
 CFR  part 300,  (which implements  section 121(c)  of the
 Comprehensive  Environmental  Response/  Compensation,  and Liability
 Act  of  1980  (CERCLA),  42  U.S.C.  9601  et seq.),  requires five-year
 reviews "if  a  remedial action is  selected that  results  in
 hazardous substances,  pollutants,  or  contaminants remaining at
 the  site above levels  that allow  for  unlimited  use and
 unrestricted exposure."   Previous  directives  on the subject are
 Office  of Solid Waste  and Emergency Response  (OSWER) Directives
 9355.7-02 (May 23,  1991), "Structure  and Components of  Five-Year
 Reviews," and  the first supplement to  that guidance, OSWER
 Directive 9355.7-02A (July 26, 1994).   The 1991 and 1994
 directives flesh  out the  purposes  of  five-year  reviews.
   *
      This second  supplement  implements  OSWER  response to  an audit
 of the  five-year  review process.   The  audit,  "EPA's  Management  of
 Five-Year Reviews,"  Audit Report Number E1SFF4-11-0029-5100229,
March 24,  1995, was  conducted by the EPA Office of the  Inspector
 General.   The  second supplement explains:  (1) what is "ongoing
presence"  at a  site;  (2)  what is a "recent" site visit; and,  (3)
 the need to document:  (a) milestones used to  implement
 recommendations contained in  five-year  reviews,  (b)  who has
 responsibility  to perform each recommendation and,  (c) which
 agency has oversight authority.1
     xThe policies set forth in this Directive are intended
solely as guidance.  They are not intended, nor can they be
relied upon, to create any rights enforceable by any party in
litigation with the United States.  EPA officials may decide to
follow the guidance provided in this Directive, or to act at
variance with the Directive, on the basis of an analysis of
specific circumstances.  The Agency also reserves the right to
change this Directive at any time without public notice.

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      Purposes of five-year reviews.   The main purposes of  five-
 year reviews are  to determine whether: the  remedy  remains
 protective of human health and the  environment;  is functioning  as
 designed;  and,  necessary operation  and maintenance is being
 performed.  Five-year reviews generally involve  a  site visit  or
 documentation of  conditions noted through ongoing  presence at the
 site.  Reviews should summarize recent technical data obtained
 from site  monitoring, sampling or testing (if  any),  and  a
 rationale  supporting any conclusions drawn  from  such data.  The
 five-year  review  should include a signed  determination by the EPA
 division director that the remedy is or is  not protective of
 human health and  the environment.  It should also: prescribe
 measures necessary to correct any deficiencies;  describe who  is
 responsible for implementation of measures  to  correct such
 deficiencies;  nrce mil3stv.es of performance for such
 corrections; and,  note who has oversight  autnority.

 DISCUSSION

      Types of review necessary.   Sites where response is complete
 are  generally subject to a Type I review.   A Type  II or  Type  III
 review should be  employed only when site-specific  circumstances
 indicate a need for a recalculation of the  risk, or a new risk
 assessment,  respectively.   Sites where response  is ongoing are
 generally  subject  to a Type la review.  Type la  sites typically
 require  less intensive review.

      Fewer tasks for Type la reviews.  In  establishing the Type
 la review,  EPA  distinguished between sites  where response is
 ongoing, and where response is  complete.  Such distinction
 recognized the  obvious need for fewer steps in a five-year review
 when  work  is incomplete (e.g.,  ARARs review, or  a  special site
 visit).  Sites  generally qualify for a Type la review until
 construction is completed and the site qualifies for listing on
 the Construction Completion List (CCL).  Given  that there  are
 four  levels  of  review and many site-specific circumstances, the
 tasks  that are  appropriate for  any  review will vary.

     What  tasks are appropriate?  Prior guidance offers  Regions
 options  for  five-year reviews,  depending  on the  level of the
 review and site-specific circumstances.   (See  the  Appendix to the
 1991  directive.)   A Region should only perform those tasks in
 five-year  reviews  that help it  to determine whether  the  remedy  is
protective of human health and the  environment,  and should not
mechanically perform tasks which do not help to  reach that
 determination.  Ongoing presence is an important factor  in
 helping  Regions to decide  which tasks to perform during  a five-
 year  review.

      "Ongoing presence" means that there is  regular activity at
 the site evidenced by continuing response work.  Such continuing
 response work may  include  a remedial action, a removal,  studies

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 or investigations/  regular monitoring or sampling,  or other
 regular activity at the site.   When there is no ongoing presence
 at a site,  a five-year review should include a "recent" site
 visit.

      "Recent" site visits.   For five-year review purposes,
 "recent" means within 6 months of initiation of the review,
 absent  circumstances showing that older data will suffice to
 determine  protectiveness.  A remedial project manager (RPM) may
 combine'a  site visit for five-year review purposes with a visit
 conducted  for some other purpose in which results of response are
 documented,  for example, the latest annual site visit.  RPMs are
 encouraged to leverage resources by using potentially responsible
 parties (PRPs)  who have entered into settlement agreements.

      Leveraging  resources by using PRPs.   Consistent with
 relevant settlement agreements,  a lead agency may authorize PRPs
 to visit sites for five-year review purposes,  and to conduct
 studies and investigations for EPA.   Such studies and
 investigations may involve sampling,  testing,  monitoring,
 analysis,  and recommendation of alternatives.   The information or
 recommendations  may be very helpful  to EPA in documenting whether
 the remedy  remains  protective.

      Documenting results.  The most important determination which
 should  result from  a five-year review is whether the remedy
 remains protective  of human health and the environment.   Other
 findings necessary  in a five-year review concern whether the
 remedy  is functioning as designed, and whether necessary
 operation and maintenance is being performed.   Those findings
 should be documented in the review,  and should be the subject of
 recommendations, as  appropriate.   The determination of
 protectiveness should be documented  in a signed statement by the
 Hazardous Waste Management  Division  Director  at the foot of the
 five-year review.  The  determination  should be that:  (1) the
 remedy is protective;  (2)  i-t is not protective;  or,  (3)  it  would
 be protective if certain measures  were taken.

     Remedies that are not protective.  When a  remedy is
 determined to be not protective,  further documentation is
 required in a five-year  review.  That documentation should
 include both recommendations .to ensure that a remedy becomes
protective, and milestones toward achieving protectiveness, with
 clear timetables.  The review should  also make it clear  who will
act.  In other words, the responsibility  for performance of
necessary measures should be clearly  noted, if known.   Finally,
the review should document  which agency  has oversight.
responsibility to ensure  that the  necessary measures are
completed.
                               -3-

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QUESTIONS

     If you should have any questions concerning this document/
please contact Carol Bass of my staff at  (703) 960-2788.
                               -4-

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