UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUL 7 1992
OSWER Directive No. 9203.1-03
SUBJECT: Guidance on Implementation of the Superfund Accelerated
i Cleanup Model, (SACK) undev CERCLA and the NCP
FROM: -f Don R. Clay (f . J- .;.
. Assistant Adinistrator; for Solid Waste
\ and Emergency Response
)' Lisa K.
Associate Genere-i Counsel
Solid Waste and Emergency
Response Division
TO: Waste Management Division Directors-
Regions it iv, v, vi, vii, viii
Emergency and Remedial Response) Division Director
Region II
Hazardous Haste Management Division Directors
Regions III, IX
Hazardous Haste Division Director
Region X
Superfund Branch Chiefs
Regions I-X
Superfund Brandt Chiefs,
Office of Regional Counsel
Regions I-X
PURPOSE
«
To provide a more precise description of the Superfund
Accelerated Cleanup Model (SACM) , in order to ensure its
consistent application in compliance with CERCLA and the National
Contingency Plan (NCP).1
1 This Directive does not address the unique issues
associated with the implementation of the SACM model at federal
facility sites. Supplemental guidance on those issues is under
development.
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BACKGROUND
In broad terms, the SACM model seeks to accomplish four
objectives: establish a continuous process for the assessment o,
site-specific conditions and the need for action; create cross-
program Regional Decision/Management Teams responsible for
initiating appropriate actions as information is developed about
a site; achieve prompt risk reduction through early actions
(removal or remedial); and ensure the appropriate cleanup of
long-term environmental problems. The overall goal of 8ACM is tc
accelerate cleanups and increase efficiency is the superfund
process within the framework of CIRCLA and the MCP, while
ensuring that cleanups continue to be protective and to allow for
appropriate public involvement.
Since the announcement of SACM, there has been considerable
interest and enthusiasm about the model. Active discussions
continue among Headquarters offices and the Regions, and views
have been solicited from the Corps of Engineers, the Department
of Justice, and States in an effort to further develop the
guiding principles of SACK. Now that the model has been outlined
conceptually, it is important to discuss the details of the
approach in order to ensure that all participants are working
from a consistent starting point, and that the model is carried
out in compliance with CKRCLA and consistent with the NCP.
DISCUSSION
hia to egaeTA »im the MCP. SACM is intended to
help the Agency accomplish the goals of expedited cleanup and
increased efficiency in the Superfund proceee within the
framework of the current statute and NCP. The Agency believes
that there is adequate flexibility under the current law and
regulations to accomplish theme goals; however, SACM does nat
provide independent authority to carry out actions that are not
authorised by the CZRCLA and the NCP regulations.
For instance, the use of the terms "early actions" and
"long-term actions" in SACM should not be read to mean that
actions may be implemented under the SACM model that are other
than removal or remedial actions. Amy action taken under cncLA
must fall into the category of 'a removal action or a- remedial
action, ame then most conform to applicable 9C9 requirement*.
The categorization in SACM of early removal actions and early
remedial actions as "early actions" is meant to better
communicate the timing and nature of actions designed to achieve
rapid reduction of risk, although not necessarily cleanup of all
contamination. (Given the large number of sites with contaminant
problems that may require long-term solutions, e^jgu» sites
requiring groundwater restoration, it is anticipated that many
sites will have both early and long-term action components.)
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At the same time, however, the MCP affords the Ageaey
considerable discretion in many iastahoas. For example, the
numerous data collection efforts contemplated by the NCP could be
performed as part of one large sits assessment (as discussed
later in this Directive). CERCLA and the NCP also provide the
Agency with the flexibility to proceed with many types of cleanup
actions using either removal or remedial action authorities. £•£
CERCLA sections 101(23) and 101(24); and 40 CFR 300.415(d) (a
partial list of actions that nay be carried out using removal
action authority).
In addition, some SACM pilots may involve specific
deviations from current Agency policies in order to test a new
approach to site evaluation or response (where this is the case,
such deviations should be properly justified and documented).
Experience from the SACM pilot projects may also prompt changes
in national policies. (Further, SACM pilot projects may identify
regulatory or statutory requirements that would prevent the
Agency from pursuing a given approach; such information may be
referred to Headquarters for consideration as part of regulatory
reform, or for study by CERCLA reauthoriaation workgroups.)
Stti AlitlBsint Ons of the major initiatives of SACM is to
break down institutional barriers within the Agency, and to
establish an operational scheme under which data are collected
and used to serve multiple purposes* For instanea, samples taken
as part of an evaluation for possible removal action may often be
used to support, or begin, an evaluation of the need for remedial
action, sits scoring using the Hazard Ranking System (KM), or in
some cases, the remedial investigation (RZ). Although the NCP
regulations contemplate that the Agency will perform (as
warranted) a removal preliminary assessment (PA), a removal site
inspection (SZ), a remedial PA and SZ, and ultimately an RZ, some
or all of these various studies can be consolidated in
appropriate cases under the SACM model, such that one sits
assessment can be performed and one sits assessment report
written. lovever, the report should iaolude asy fiadiaga
required by ths WC9 for moviag from ems phase of sits assessmeat
to aaothsr (sUfl*.* from a remedial PA to a remedial SZ; JUUL 40 CFR
300.420(b)(4)(iii)).*
By using data for multiple purposes, economies can be
achieved in terms of ths amount of sampling needed, expertise and
learning can be shared among agency officials responsible for the
various tasks undertaken at a site, and the time between data
collection and action (if deemed necessary) can be shortened.
1 Note that during the initial phases of the site
assessment process, -it may be appropriate to issue a finding of
"Site Evaluation Accomplished* (SEA), indicating that no further
action is planned for the site.
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Specifically, if and when sufficient supporting information
gathered during the combined site assessment, work could be
an early action, an HRS scoring package, or ultimately a long-
term action. This consolidation could save years in the site
evaluation phase of the Superfund process.
Effect on the NPL. The attempt to evaluate sites more
quickly, and to initiate response action earlier, may have some
impact on a site's scoring and possible listing on the National
Priorities List (NPL).J However, as discussed below, that impact
is subject to several significant limitations.
Under the current HRS, the physical removal of hazardous
substances from a site may reduce the site's HRS score, but only
if the action occurs prior to the remedial SI phase of the site
assessment.4 Where early response actions occur after initiation
of the remedial SI portion of the site assessment, the risk
reduction achieved by the early action would not be considered in
the HRS scoring process. (However, the site might be e candidate
for a "no further action* decision and then deletion, shortly
after being listed on the NPL.)
Moreover, because a range of waste quantity values generally
qualifies for the eime wests quantity sub-score under the HRS, a
physical removal must be significant enough to lower the wests
quantity below that range) of quantities in order to affect the
final waste quantity and HRS scores. (The timely removal of aJ
hazardous substances would always result in an HRS score of
zero.)4
1 Only sites listed on the NPL are eligible for
finsmoed remedial actions. 40 CFR 300.425(b)(1). However,
removal actions, and response actions carried out by private
parties pursuant to EPA enforcement authorities, may be conducted
at NPL or non-NPL sitss. 40 CFR 300.425(b)(1) and (b)(4).
4 £m* 55 Fed.Reg. at 51568. The remedial SI point was
chosen as the dividing line because it is the point at which most
of the scoring data is available, and because of the need to
provide finality-in the listing process (e contrary policy would
create e burdensome need to continually recalculate HRS scores).
5 Note that actions that do not affect the quantity of
waste at a sits, such as providing alternative drinking water
suppliee or enhancing containment of a waste pile, would not
affect the KRS score. £mft preamble to final HRS, 55 Fed.Reg.
51532, 51567-69 (Dec. 14, 1990), and HRS Section 2.4.2.2 (40 CFR
Part 300, App. A, sec. 2.4.2.2), for a more detailed discussion
of the effect removel actions may have on the KRS score.
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It should also be not.ed that most sites requiring action
under CERCLA have been found to present long-term problems (such
as the need for groundvater restoration) in addition to more
acute, short-term problems. Thus, at many sites, risk reduction
activities may address only a portion of the contamination
problem, and thus the MRS scoring process would often continue
even after the early actions.
As part of the SACK initiative, the Agency intends to
compile a list of long-term actions. However, that list is not
meant to replace the NPL; rather, it will simply be an
informational list of sites at which long-term actions are being
carried out using the concepts reflected in SACK, and will likely
represent a sub-set of all NPL sites.
Effect on Cu,rrffl|t Response Action Proeed.u.re,p - It is also
important to recognize how the SACK model fits within the
existing site response process. Although SACK encourages the
talcing of early action where risk reduction may be accomplished
promptly, it is not expected that procedures would change for all
categories of CERCLA response actions (although implementation of
the Model may result in expedited administrative practices at all
sites).
For example, m will soatime te use
authorities to respoad te sasrasasy aad tiae-eritisal sitmstioms,
amd safiM dees met imtemd te fisamoe tie memmer im vaiea these
tiae-oeasitive aotiome ere serried e«t. However, the
determination ee to whether a situation is "time-critical" (where
action must be initiated in less than six months) as compered to
"non- time-critical" (where more than six months planning time is
available) will have an important impact on the level of
analysis, timing of administrative record development, and extent
of public participation that is required under the MCF
regulations.' Thus, especially in close cases, the finding that
action is "time-critical0 should be discussed with the Office of
Regional Counsel representative to the. Decision Team, and should
be explained in the Action Memorandum.
At the other end of the spectrum, the Agency will continue
to use remedial action authorities to respond to most
contamination problems that are expected to require more than
five years to complete (" long-term actions" ), such as groundwater
restoration projects, large wet land/ estuary sites, and extensive
40 CFR 300.415(0)(4) and (m)(4), 300.820(a); 55
Fed.Reg. at 8695-98 and 8805-06 (March 8, 1990).
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mining sites.7 It is also expected that reaedial action
authorities would generally be necessary to carry out the
permanent relocation of individuals, and actions requiring
significant, long-term operation and saintenance activities.
TB* area where the greatest flexibility is available —and
where the SACK aodel is expected to hare the greatest iapaet —
is for actions that fall between the clear cases of removal aad
raaedial actions* sitas for vhleh a planning period of at least
six aoaths exists (non-tiae-critical situations), aad at which
rapid risk reduction is possible.
Z.i non-tiaa-critical situations, beta non-tiae-critical
reaoval authority, aad early aetioa rtltilal authority, could
potentially be used to reduce risk. In aaJcing a decision as to
which type of authority to use, the Regional Decision Team,
including a representative froa the Office of Regional Counsel,
should consider a nuaber of issues regarding each type of
authority.
Man-t;iM-eritieal
- Under the SACM aodel, it
is expected that the Agency would aaJca greater use of ita
authority to conduct non-tiae-critical reaoval action*. The use
of such action* proalsea to accelerate the cleanup process. For
exaaple, for Fund-financed action*, noii-tiae-critical reaoval
actions can proceed prior to listing on the) MFL; and in the
enforcement context, they aay be accompllahad through
adainistrative orders on consent (AOC's) rather than acre tiae-
conaualng judicial consent decree* used for remedial action*;
11* CZRCIA section 122 fd) (1) (A) .
In deciding on the appropriatene** of using non-tiae-
critical reaoval action authority at a site, the cost and
duration of the aetioa ahould be evaluated* Zf a •"ffff-ffliinfilri
reaoval action is expected to exceed atatutory liait* of $2
aillion or one year, then, an exemption auat be justified ba*ed
either on the emergency nature of the situation, or a finding
that continued reaoval action is •consistent with the reaedial
action to be taken* (CZRCLA section 104fc)(D). In non-tiae-
critical situation* where a reaoval action is expected to exceed
the tiae or dollar limitation, we generally expect to rely on the
consistency exemption. Site* at which remedial action ia likely
to be taken (xUm*« prepoeed or final NPL sites) will generally be
strong candidate* for the consistency exemption; it aay also be
appropriate to use this exeaption at some non-NFL sites, but it
aust be justified on a site-by-site basis. 33* 55 Fad. Reg. 8666,
8694 (March 8, 1990) .
7 Again, to the extent that the Agency plan* to take a
remedial action using Fund aonies, the site aust first qualify
for listing on the NPL.
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Consideration of whether to take a non-time-critical removal
action at a site should also include an evaluation of state cost
share issues. Although a State cost share is not required under
CERCLA section 104(c)(3) for a removal action,' the absence of a
state's financial participation may limit the capacity of EPA to
fully fund certain large dollar value non-time-critical removal
actions. The advisability of seeking voluntary participation
from the States in the funding of a non-time-critical removal
action in order to expedite the cleanup of a site (rather than
waiting to perform a remedial action), must be reserved for site-
by-site discussions.
Similarly, where a proposed rund-financed removal action
would require the performance of post-removal action measures to
maintain the effectiveness of the action, a State's willingness
to perform post-removal site control should be evaluated.' A
decision by a state not to provide for such post-removal controls
may limit EPA's capacity to proceed with Fund-financed remove!
actions that require measure* to maintain the completed action's
effectiveness. (At enforcement sites, the potentially
responsible parties (PRPs) may be required to perform necessary
post-removal, site control activities.)
The decision to use a non-time-critical removal authority
should also follow a review of the applicable requirements, a
noa-tiae-eritioal reewval astiom mrnst inslode am analysis of
alternative* in am engineering evaluatioa/ooet analysis [O/CA],
and tae public most be afforded mot less tnam so calendar days to
•elected, as required in the NCP (40 CFR 300.4lS(b) (4) and
(m)
It is also expected that for non-time-critical removal
actions, it will generally be practicable to attain ARARs. The
NCP requires removal actions to attain ARARs "to the extent
* Not* that before a Fund- financed remedial action can be
taken at a facility that was operated by the State, a cost share
of at least 50 percent is required for all "response costs
including removal action costs- £§* C2RCLA section
,"
* "Post-removal site control11 is discussed in the NCP at 40
CFR 300.415(X) .
10 Note that this public comment period will be extended by
a minimum of IS additional days upon timely request. 40
300.4l5(m) (4) (iii).
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practicable," considering the scope and urgency of the
situation.11 Given the extended planning time available for non-
time-critical removal actions, we believe that it will generally
be "practicable," in terms of the urgency factor, for non-time-
critical removal actions to comply with ARARs. Whether or not
the attainment of an ARAR is beyond the scope of a non-time-
critical removal action, is a site-specific determination that
will depend, in part, on the nature of the removal action, and on
the nature of other actions to be taken at the site.12 For
example, a removal action is more likely to be limited in scope
where it is to be followed by additional site response actions
designed to further address the same problem. (The
impracticability of attaining an ARAR based on the scope of a
non-time-critical removal action should be?discussed with the
Office of Regional Counsel's representative to the Decision
Team.)
Finally, in order to assure the public that the non-time-
critical removal actions taken pursuant to the SACK initiative
will be of high quality, Agency policy will bo to implement a
preference for treatment in those actions, and to oomduot a
baseline risk assessment, whore appropriate, before selecting a
ncn-time-critical removal response.
gajriy tta^adiai Actions. SAQf also encourages the increased
use of remedial action authorities to achieve early risk
reduction*, at sites. An early, remedial action may bo either a
final or interim remedial action. An early "final" remedial
action involve* the final cleanup of an operable unit or portion
of a site early in the remediation proeoss for the entire site.
For instance, at a largo site with several contaminant sources,
an early final remedial action might bo taken to eliminate or
control one of those sources, thereby achieving significant risk
reductions.
An "interim" remedial action is generally intended to
address a throat in the short term, while a permanent remedial
solution is being developed. An example would be the
installation of a groundvater pumping system to contain a
contaminant plums while the feasibility of aquifer treatment is
being studied, or construction of a temporary landfill cap to
prevent direct contact with wastes, during-the remedial
11 40 CFR 300.415U). The waivers described in 40 CFR
300.430(f)(1)(ii)(C) may also be considered during removal
actions.
13 s«e NCP preamble discussion, at 55 Fed.Reg. 8695-96
(March 8, 1990).
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investigation/feasibility study (RI/FS) process.13 An early
interim remedial action can be taken during scoping or at other
points during the RI/FS process (however, remedial construction
activities cannot be provided using the Fund until the site has
been finally included on the NPL14) . Less documentation is
required for the Record of Decision (ROD) for an interim remedial
action than for a ROD covering a final remedial action; however,
adequate documentation must be provided to justify the action.
(See "Guide to Developing Superfund No Action, Interim Action,
and Contingency Remedy RODs," OSWER Public. No. 9355.3-02FS-3
(April 1991), at p. 4.)
Even if early risk reduction could be accomplished through a
non-time-critical removal action, it may nonetheless be
preferable to pursue an early remedial action in a number of
situations. For instance, EPA may decide to use its remedial
action authorities — and therefore to follow the more extensive
State and public participation procedures required for such
actions — at certain sites where there is high public or State
interest, even if there is some associated delay. It may also be
appropriate to use remedial action authorities to accomplish
early actions where a site is already listed on the NPL and the
remedial process is well underway.
The SACK goal of
accelerating cleanup* is not: intended to displace other important
goals, such as the Agency's general policy of pursuing
enforcement efforts first. However, in order to effectuate both
goals, it will be necessary to carry out certain enforcement
actions in an expedited manner.
For instance, PRP searches must be conducted during the
initial phases of the sits assessment process in order to allow
the Agency to pursue en effective enforcement strategy for early
actions. The early identification of and notice to PRPs will
also serve to strengthen EPA's cost recovery cases in situations
where the action is financed by the Fund in the first instance.
(Of course, a full PRP search may be impracticable in emergency
and certain time-critical situations where, for instance, the
PRPs.are numerous or difficult to determine.)
*
In addition, the decision to proceed with an early action
using removal action authorities may trigger shorter statutory
deadlines for the filing of judicial cost recovery actions in
11 Of course, such actions could also be accomplished, in
appropriate cases, under removal action authorities.
14 Note that Fund monies may be used to pey for the RI/FS
and remedial design activities even prior to listing on the NPL.
40 CFR 300.425(b)(1).
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10
some cases.11 Thus, if the use of removal authorities is
increased under the SACM model, it may be necessary to prepare
cost recovery cases earlier in the process.
CONCLUSION
It is important to ensure that response actions conducted as
part of the SACM model are consistent with CERCLA and the NCP.
This will strengthen the Agency's ability to recover its costs,
to defend the selected response actions on a site-specific basis,
and to retain full support for the SACM initiative from Congress
and the public.
Questions concerning the issues discussed in this Directive
should be addressed to Sherry Hawkins of the Office of Emergency
and Remedial Response (OERR) (202-260-2180), Sally Mansbach of
the CERCLA Enforcement Division (OHPE/CEO) (703-308-8404), or
Larry Starfield of the Office of General Counsel (OGC) (202-260-
1598).
cc: Richard Guimond
Henry Longest,. OERR
Bruce Diamond, OJfPE.
Tim Fields, SRO
OERR Division Directors
Bill white, or
Sylvia Lowrance, osw .
Walter Kovalick, TZO
James MaJcris, CEPPO
Sally Mansbach, CED
Sherry Hawkins, OERR
Larry Starfield, OGC
CERCLA section 113(g)(2)(A) and (B) .
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