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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.
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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.
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