UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
Ft
B ("4 2000
SUBJECT:
FROM:
TO:
Use of Non-Time-Critical Removal Authority in Superfund Response Actions
<\Y-/ /\ / P-f-
Stephen Luftig, Director ^^ r u~ U. L^-XC
Office of Emergency and Remedial Response,
Barry Breen, Director
Office of Site Remediation Enforceme
Regions l-X
Program and Legal Division Directors
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1. Introduction
Since the inception of the Superfund Accelerated Cleanup Model ("SACM") in 1992, it
has been a central feature of EPA's Superfund program philosophy to integrate the removal and
remedial programs in order to achieve the greatest human health and environmental protection in
the most efficient fashion. To this end, EPA has urged Superfund decision makers to broadly
use the CERCLA removal authority to achieve quick, protective results at Superfund sites,
consistent with all legal requirements, including public participation. The increased use of
removal authority has also been highly effective in increasing the pace of cleanups and has
contributed substantially to the number of projects reaching construction completion.
Approximately one third of the first 500 projects at NPL sites that have achieved construction
completion have had some removal activity. This increased use of removal authority should
continue, where appropriate and consistent with the guidelines discussed in this guidance
memorandum. Such use allows EPA to take the legally-authorized response actions best suited
to the threats posed at sites.
At the same time, the statutory and regulatory differences between the requirements
applicable to removal actions and the requirement's applicable to remedial actions demonstrate
that the distinction between removal actions and remedial actions is important and that there are
limitations to the use of removal authority. It is therefore important to continue EPA efforts, in
each individual case, to carefully consider and document the bases for employing removal
authority.
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To ensure that the Regions continue to properly consider and document the rationales for
employing removal authorities, this memorandum summarizes the pertinent NCP criteria and
guidance to be considered in determining whether the use of remedial or removal authority is
most appropriate in a given case. With respect to non-time-critical removal actions, this •
memorandum provides supplemental guidance regarding the initiation of such actions. This
memorandum further clarifies the Headquarters consultation requirement where it is anticipated
(at the time the EE/CA Approval Memorandum is prepared and for subsequent, significant
increases in project costs) that a non-time-critical removal action could cost in excess of $6
million.1 This guidance applies to preparation, review, and signature of all EE/CA Approval
Memoranda, unless such memorandum has been signed prior to the date of this guidance.
2. Relevant Factors in Selecting Removal Authority
In order for the lead agency to make a determination that a removal action is warranted,
the lead agency must first make the determination, preferably in the action memorandum, that
there is a release or threat of release into the environment of a hazardous substance, or a release
or threat of release into the environment of a pollutant or contaminant which may present an
imminent and substantial danger to public health or welfare. CERCLA, 42 U.S.C. 104(a)(l). The
lead agency must also make a determination, preferably documented in the action memorandum,
that "there is a threat to public health, or welfare or the environment." 40 C.F.R. Section
300.415(b)(l). This determination must be based on a consideration of the appropriateness of a
removal action in relation to the factors set out in Section 300.415(b)(2). Id. These factors are:
"(i) Actual or potential exposure to nearby human populations, animals, or the food chain
from hazardous substances or pollutants or contaminants;
1 While the principles identified in this guidance apply to the use of removal authority by
anyone carrying out CERCLA response actions, including other federal agencies, the EPA'-HQ
consultation requirement identified herein does not apply to actions performed by other federal
agencies. Different statutory sections, guidances and agreements may apply to such actions. See,
for example, "Policy on Decommissioning Department of Energy Facilities Under CERCLA"
(May 22, 1995).
For Brownfields Cleanup Revolving Loan Fund (BCRLF) pilots, existing guidance (e.g.,
Brownfields Cleanup Revolving Loan Fund Administrative Manual) ensures the appropriate
choice of non-time-critical removal authority consistent with this guidance. Regions and BCRLF
pilots should continue to follow BCRLF guidance when proceeding with BCRLF funded non-
time-critical removal actions.
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(ii)Actual or potential contamination of drinking water supplies or sensitive ecosystems:
(iii)Hazardous substances or pollutants or contaminants in drums, barrels, tanks, or other
bulk storage containers that may pose a threat of release;
(iv)High levels of hazardous substances or pollutants or contaminants in soils largely at
or near the surface, that may migrate;
(v)Weather conditions that may cause hazardous substances or pollutants or
contaminants to migrate or be released;
(vi)Threat of fire or explosion;
(vii)The availability of other appropriate federal or state mechanisms to respond to the
release; and
(viii)Other situations or factors that may pose threats to public health or welfare or the
environment."
40 C.F.R. Section 300.415(b)(2).
In determining the appropriateness of any removal action, the Agency considers the NCP
factors set out above and is guided by the partial list of appropriate removal actions set out in 40
C.F.R. Section 300.415(e). The Agency considers the factors set out in 40 C.F.R. Section
300.415(b)(2) as factors that are relevant to determining whether it is appropriate, in a specific
circumstance, to employ removal, rather than remedial, authority.
In addition to considering Section 300.415(b)(2) factors, EPA decision makers should
also consider the following additional factors in'determining whether to employ a non-time-
critical removal action or a remedial action in a particular situation: (1) time-sensitivity of the
response2; (2) the complexity of both the problems to be addressed and the action to be taken; (3)
the comprehensiveness of the proposed action3 and (4) the likely cost of the action4. The
2 Time sensitivity refers to the need to take relatively prompt action. In contrast, the
length of time necessary to complete an action, sometimes referred to as "duration" of the action,
captures only how long the response action will take to build or implement. While some courts
have looked to that factor in distinguishing between removal and remedial actions, this
characteristic usually is not helpful; removal actions are most often of short duration, but they
certainly can be long-running responses, too, thereby undercutting the probative value of
duration, relative to the factors discussed in the text, in deciding whether an action is removal
rather than remedial in nature.
3 Although some courts have considered the "permanence" of a response action as
relevant to discerning whether the action is removal or remedial in nature, the Agency believes
that consideration of permanence per se is sometimes misleading in making a determination
regarding whether to employ removal or remedial authorities. As a practical matter, removal
actions are often permanent solutions such as can be the case in a typical soil or drum removal.
Also, the Agency views the reference to "permanent" in the statutory definition of "remedy" as
merely reflecting Congress' preference that remedial actions effect permanent solutions. See 42
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interplay of these ike tors, and how varying combinations of them can point toward use of one
response authority over the other, are discussed below.
In considering all of these factors, including those supplied by the NCP, regional decision
makers often will have to make choices based on information that is far from complete or
comprehensive. As they must do in many other situations, regional decision makers must use
their professional judgment and make prudent decisions in light of available information. The
information which the decision maker considers or relies on in making this determination should
be placed in the administrative record.
Generally, where a site presents a relatively time-sensitive, non-complex problem that can
and should be addressed relatively inexpensively, EPA would normally address the problem by
use of removal authority. But even expensive and complex response actions may be removal
action candidates if they are relatively time-sensitive — regardless of whether any further action
might ultimately be selected for a site. Thus, for example, removal authority may be appropriate
for incineration of thousands of drums that are degrading over time, especially where the Agency
determines as part of an initial removal action that such disposal is warranted regardless of any
further action that EPA may ultimately decide is appropriate for a site. Similarly, even
technically complex actions may be appropriately implemented under removal authority. For
example, dredging large quantities of contaminated sediment could be conducted using removal
authority where such action was the appropriate course for abating or controlling a time-sensitive
threat.5
U.S.C. Section 9621(b)(l). It does not suggest that removals cannot also achieve permanent
solutions. Compare 42 U.S.C. Section 9601(23)(definition of "removal") with 42 U.S.C. Section
9601 (24)(defmition of "remedial action"). However, at sites where the other factors suggest that
remedial authority should be used, it may still be appropriate to use removal authority to.conduct
interim or partial response actions to achieve immediate risk reduction while the RI/FS is
completed and the final remedy is selected. This guidance uses the term "comprehensiveness" to
distinguish between such interim or partial responses and the final or "comprehensive" response
at such sites.
4 CERCLA Section 104(c)(l) and the NCP at 40 C.F.R. Section 300.415(b)(5) require
that fund-financed removal actions (other than Section 104(b) removal actions) be terminated
after $2 million has been obligated or 12 months have elapsed unless one of two grounds for a
waiver of this limit has been invoked. These limits (which can be waived) apply only to fund-
financed actions, and serve as a fiscal check; they are not found in the statutory definition of
"removal" and do not control which actions can be taken as removals.
5 Generally, further examination of the site will also take place in order to determine
whether other or subsequent response actions would be appropriate as well.
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In contrast, absent time sensitivity0, remedial authority generally would be used to address
complex site problems that will likely require a costly, complicated response. For example,
where a response action aimed at aquifer restoration is to be carried out at a complex, highly
contaminated groundwater site, where no one is presently using the groundwater, such work will
typically call for the use of remedial authority. In addition, remedial authority would generally
be used to select a final, comprehensive, costly response to environmental problems at an
industrial plant site that includes multiple waste streams or sources of contamination. However,
at either type of site, it would remain appropriate to use removal authority to address "hot spots,"
control the source of contamination, or take other interim actions.
A site-specific decision concerning the use of non-time-critical removal or remedial
authority will need to be made based on the NCP criteria and considerations of time sensitivity,
complexity, comprehensiveness, and cost. The relative importance of these factors will vary in
light of the site conditions and contemplated-action in question. Indeed, each decision must be
sensitive to site conditions and circumstances. This guidance describes the Agency's general
approach to use of non-time-critical response authorities. Guidance cannot anticipate every
possible condition or circumstance, and some health or environmental conditions specific to a
site may sometimes warrant departure from the approach set out in this section of this guidance
memorandum.
3. Documentation Requirements
A. Generally
Existing guidance requires that an action memorandum discuss the threats to public
health, welfare or the environment as they relate to the factors set out in Section 300.415(b)(2).
See OSWER Dir. 9360.3-01, "Superfund Removal Procedures Action Memorandum Guidance"
at 14-16 (Dec. 1990). The underlying information supporting such analysis should also be
included in the administrative record for the action. Id. at 2. See also 40 C.F.R. Sections"-
300.800(a) and 300.810.
Action memoranda should be carefully prepared to effectively document consideration of
the factors set out in Section 300.415(b)(2). Where time permits, this discussion in the action
memorandum should specifically cite to and identify the underlying data, evaluations, reports or
other information on which the discussion is based. Prior to signing an action memorandum,
regional decision makers should carefully review the "threats to the environment" section of the
action memorandum to ensure that the Section 300.415(b)(2) factors have been considered and
documented.
5 The issue here is whether a CERCLA decision maker is faced with a threat to human
health or the environment that, though not time-critical, is nonetheless sufficiently serious that
the added time needed to comply with remedial requirements (e.g., completion of a RI/FS and
ROD) would be unacceptable.
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B. Non-Time-Critical Removal Actions
Where a planning period of at least six months exists, the NCP establishes important
additional requirements for the use of removal authority (principally by requiring that an
engineering evaluation/cost analysis or "EE/CA" be prepared and by establishing significant
public participation requirements). See 40 C.F.R. Section 300.415(b)(4) and (m)(4).
To authorize the preparation of an EE/CA, existing guidance requires that an EE/CA
Approval Memorandum be prepared and approved. See OSWER Dir. 9360.0-32, "Guidance on
Conducting Non-Time-Critical Removal Actions Under CERCLA" at 22-23 (August 1993).
Importantly, one key function of the EE/CA Approval Memorandum is to document at the
beginning of the process that "the situation meets the NCP criteria for initiating a removal action
...." Id. The NCP also requires that the lead agency establish an administrative record file for
the action at or before the time the EE/CA Approval Memorandum is signed. 40 C.F.R. Section
300.415(n)(4)(I).
To ensure that a non-time-critical removal action is employed appropriately, regional
decision makers should ensure that the EE/CA Approval Memorandum:
1 ) explains the basis for the decision to employ a non-time-critical removal action as
opposed to initiating a RI/FS, including a discussion of the factors relevant to that
decision, including the relevant Section 300.415(b)(2) factors, and the cost, complexity,
comprehensiveness, and time sensitivity of the proposed action, to the extent such
information is known or can be reasonably anticipated at the time that the EE/CA
Approval Memorandum is being prepared;
2) addresses whether a non-time-critical removal action is appropriate, in the context
of any likely response action, including remedial action, that may be selected in the
future; and
3) is supported at the time it is signed by an administrative record file that contains
all of the underlying information considered by the Region relevant to the findings and
key discussion contained in the EE/CA Approval Memorandum, including, but not
limited to, a finding of actual or threatened release or discussion that the instant case
meets or is likely to meet the NCP criteria and other factors for initiating a removal
action.
4. Headquarters Consultation
For non-time-critical removal actions where the cost of the selected removal action could
exceed $6 million, the Region must consult with the Director of OERR prior to signing the
EE/CA Approval Memorandum (or its equivalent). This consultation requirement applies both
to fund-lead actions and those actions to be performed by PRPs. For fund-lead actions, OERR
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will coordinate with OSRE to ensure that all enforcement options have been adequately
considered. In all cases, the draft EE/CA Approval Memorandum shall be forwarded to the
Director of OERR as part of the consultation process.
5. Purpose and Application of this Guidance.
This document provides guidance to EPA staff. This guidance is designed to
communicate national policy on use of removal and remedial authority. This document does not,
however, substitute for EPA's statutes or regulations, nor is it a regulation itself. Thus, it cannot
impose legally-binding requirements on EPA, states, or the regulated community, and may not
apply to a particular situation based upon the circumstances. EPA may revise this guidance in
the future, as appropriate.
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