protection
Off ice of
Solid Waste and
Emeraencv Resoonse
SSW
DIRECTIVE NUMBER-
TITLE: Environmental Review .Requirements for Removal
'A'ctions
APPROVAL DATE; April *g, 19&7
EFFECHVEIDATE: April m. 1987
^RSaNATING OFFICE: OERR/ERI}
E FINAL
B DRAFT
STATUS:
REFERENCE (other documents):
9360.0-3A S;uperfund Removal Procedures * Revision 2
a-
,.— _">.»>:
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6 EPA
United States Environmental Protection Agency
Washington. OC 20460
OSWER Directive Initiation Request
1. Directive Number
9318.0-05
2. Originator Information
Name of Contact Person
Cheryl Hawkins
Mail Code
WH-548/B
Office
OERR/ERD
Telephone Number
382-5650
3. Title
Environmental Review Requirements for Removal Actions
4 Summary of Q,,KW (toclu* tr,.< st*emMt of purport Sets removal program strategy for meeting the
requirements of the National Environmental Policy Act (NEPA). Introduces the defini-
tion of time-critical and non-time-critical removal actions. A major portion of this
policy addresses compliance with NEPA for non-time-critical removal actions, and in this
context introduces the concept of Engineering Evaluations/Cost Analyses (EE/CAs). (4/87
i PP
5. Keywords Superfund, CERCLA, SARA, removal actions, environmental review, NEPA,
environmental impact statements, EIS
6a. Does this Directive Supersede Previous Directives)? |X| Yes I I No What directiveInumttr. tnlf)
9360.0-11 Draft - Environmental Review Requirements for Removal Actions
b. Does It Supplement Previous Directives)? Q Yes D No What Directive fnumbtr. tit/t)
9360.0 3A Superfund Removal Procedures, Revision 2
.Draft Level
DA — Signed by AA/DAA D 8 —
Signed by Office Director
DC-
For Review & Comment
Din
Development
This Request Meets OSWER Directives System Format
Signature of Lead Office Directive*
Date
Name and Title of Approving Official . Date
Henry L.' Longest II, "director/Office- of Emergency and Remedial Response
)SWER OSWER OSWER
blRECTIVE DIRECTIVE
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OSWER DIR. #9318.0-05
ENVIRONMENTAL REVIEW REQUIREMENTS FOR
REMOVAL ACTIONS
ISSUE
Under the current National Oil and Hazardous Substances Pollution
Contingency Plan (NCP) (November 20, 1985), the definition of removals has
been expanded to include all activities formerly considered immediate and
planned removals, as well as initial remedial measures (IRMs). In addition,
removal actions may be taken in response to a "threat" rather than being
limited to an "immediate and significant" threat. As a result of these
changes, removal actions may now be undertaken in less urgent situations
than previously. Because longer lead-time will be available for some
removal actions, this extension of removal authority raises the question of
whether certain removal actions should be subject to a formal environmental
review and comment period.
BACKGROUND
The National Environmental Policy Act (NEPA) requires every Federal agency
to incorporate the consideration of environmental factors into its
decision-making process. Specifically, NEPA requires Federal agencies "to
the fullest extent possible" to prepare an Environmental Impact Statement
(EIS) for all "major Federal actions significantly affecting the quality of
the human environment." The EIS must include consideration of alternative
actions, analysis of the environmental impact of the proposed actions, and
an opportunity for public,comment.*.. -... .
An exemption for Federal agency actions has'been recognized by the courts in
situations where compliance with EIS requirements would result in a "clear
and unavoidable conflict" with the purpose or procedures of the agency's
authorizing statute. This exemption has been applied to cases where it
would be impossible for an agency to adhere to the formal EIS process and at
the same time comply with a requirement for prompt action, such as that
mandated by EPA's removal authority under CERCLA.
Under the former NCP (July 16, 1982), removal actions were divided into two
categories — immediate removals and planned removals. Immediate removals
were undertaken where immediate response was necessary to prevent
significant harm to human health or the environment. Planned removals were
undertaken where an expedited, although not necessarily immediate, response
was necessary. Due to the focus of immediate and planned removals on
emergency and near-emergency situations, removal actions were not subject to
NEPA EIS requirements on the grounds that the CERCLA requirements for prompt
action in such cases conflicted with the EIS process mandated by NEPA.
*Section 113(k)(l) and (k)(2)(A) of SARA set forth requirements for
establishment of an administrative record upon which EPA will base the
selection of removal actions and provide for participation of interested
parties in the development of this administrative record. This OSWER
Directive applies to NEPA requirements and is not meant to address these
SARA requirements.
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OSWER DIR. #9318.0-05
With the expanded removal authority in the current NCR, however, some
removal actions may be undertaken in less urgent situations than was
previously possible. In such situations, the exemption from EIS
requirements based on a CERCLA mandate for prompt action would not be
applicable.
Accordingly, the purpose of this paper is to: 1) define which removal
actions will require an environmental review and public comment period; 2)
describe the mechanisms that may be used to provide an adequate review; and
3) recommend a strategy for implementation. (NOTE: Fulfillment of NEPA
requirements in the remedial program is achieved through public review of
the Remedial Investigation/Feasibility Study, which serves as a functional
equivalent of an environmental impact statement.)
DEFINITIONS
For purposes of compliance with NEPA requirements, the following categories
of removal action are defined:
1. Classic Emergency Removal Actions are actions initiated in response to a
release or threat of release that poses a risk to public health or welfare
or the environment, such that the OSC determines that cleanup or
stabilization actions must be initiated within hours or days after
completion of the preliminary assessment.The emergency nature of the
response is unrelated to the cost or duration of the response. Such actions
could include, but are not limited, to, response to a fire in a chemical
warehouse, response to a tanker truck accident that releases hazardous
substances, or response to leaking, drums that pose.an explosion hazard.
2. Time-Critical Removal Actions are actions initiated in response to a
release or threat of release that poses a risk to public health or welfare
or the environment, such that cleanup or stabilization actions must be
initiated within six months following approval of the action memo. The
time-criticality of the response is unrelated to the cost or duration of the
response. Classic Emergencies are not included in this category. This six-
month time frame within which response must be initiated is based upon the
determination'that a threat exists that must be addressed within six months.
This determination 1s Independent of the question of resource or contractor
availability to actually commence the action within that time frame, or
delays due to unexpected weather conditions, etc. Thus, if initiation of a
time-critical action is delayed past six months for these reasons, it is
still considered time-critical for purposes of NEPA compliance.Examples
include response to an industrial site in a residential area containing open
tanks of hazardous substances and spilled materials, response to a facility
containing eroding unlined waste lagoons, or response to an unregulated
waste dump containing scattered piles of deteriorating drums. • ..
3. Non-Time-Critical Removal Actions are actions initiated in response to a
release or threat of release that poses a risk to public health or welfare
or the environment, such that initiation of removal cleanup or stabilization
actions may be delayed for six months or more following approval of the
action memo.The time-criticality of the response is unrelated to the cost
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OSWER DIR. #9318.0-05
or duration of the response. An example of a Non-Time-Critical Removal
Action might be response to an abandoned industrial dump, isolated from
public access, which poses a potential threat to ground water if not cleaned
up. Cleanup may also be delayed in situations where hazardous substances
have been abandoned on a site, but the substances are in stable containers
and secured from public access. A final example might be an NPL site where
containers are stable now, but expected to deteriorate prior to the time
that the remedial program can start action. The two primary considerations
in determining whether site response can be delayed are the stability of the
wastes and the potential for public contact with the wastes. (NOTE: All
expedited response actions, ERAs, are non-time-critical by definition.)
Application of Definitions; Classic Emergency and Time-Critical Removal
Actions are exempt from compliance with EIS requirements based on statutory
conflict (i.e., the CERCLA directive for prompt action). Non-Time-Critical
Removal Actions require environmental review and public comment. However,
any emergency or time-critical threat that arises during the conduct of a
non-time-critical removal is exempt from NEPA analysis arid review
requirements. .....'..
ENVIRONMENTAL REVIEW MECHANISMS
The removal program may use two mechanisms to provide consideration of
environmental factors in Non-Time-Critical Removal Actions: 1) performing
an environmental review as part of the Engineering Evaluation/Cost Analysis;
and 2) declaring a Generic Exclusion for certain types of actions.
1..- Engineering Evaluation/Cost Analysis. The courts have developed an
exception to the EIS requirement for EPA where the agency achieves the NEPA
objective of full consideration and disclosure of environmental effects.
This exemption is commonly known as the "functional equivalency" exemption.
The Emergency Response Division (ERU) is currently developing procedures for
conducting an Enyineering Evaluation and Cost Analysis (EE/CA), which will
meet the requirements of functional equivalency for the purposes of NEPA.
Essentially, the EE/CA will be an analysis of alternatives that documents
the reasons for choosing the proposed Non-Time-Critical Removal Action. The
project cost, project complexity, and the maturity of the removal
technologies considered will be factors in determining the extent of the
analysis. The scope of the EE/CA will correspond to the scope of the
project.
For Non-Time-Critical Removal Actions, the EE/CA will include the
following:
a Site characterization '••-.-•
• Identification of response objectives
- Including consideration of "contribution to remedial
performance"
• Identification of removal response alternatives
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OSWER DIR. #9318.0-05
• Initial screening of alternatives based on four factors:
- Is the option timely witn respect to release mitigation and
program goals?
- Is the option protective of human health and the environment?
- Is the option technically feasible?
- Are there any major Institutional considerations (e.g., access
agreements, zoning)?
• Analysis of remaining alternatives based on four selection
criteria:
- Technical feasibility
• Reasonable cost
- Institutional considerations
• Environmental Impacts
• Recommended removal action
• Opportunity for public comment (21 days).
EPA will respond to public comments on EE/CAs for Non-Time-Critical Removal
Actions by means of a responsiveness summary. Details on the responsiveness
summary will be included in future removal guidance.
Thus, for removal actions where there is sufficient time before the action
will start, an analysis of environmental impacts will be performed that is
comparable to a NEPA review and in proportion to the scope of the project.
Separate guidance on EE/CAs, now being developed, will detail the Contents
.of. thei NEPA review.... P.ublie participation requirements are..deta.iled in the
April 1987 revision to the OERR Community Relations Handbook (OSWER Dir.
#9230.0-38). Community relations staff in Regional offices will be
available to assist in community relations activities.
2. Generic Exclusions. EPA may determine that certain actions taken
within Non-Time-Critical Removal Actions do not require extensive
environmental review.if those actions do not Individually, cumulatively,
over time or i.n conjunction with other Federal, State, local or private
actions have a significant effect on the quality of the human environment.
Removal actions would not be eligible for Generic Exclusions if any.of the
following are true:
• The action may involve serious local or environmental issues.
• The action will create a new discharge, or move an existing
discharge to another environmental media.
• The action 1s known or expected to have a significant effect-on
the quality of the human environment.
• The action 1s known or expected to directly or indirectly affect
cultural resource areas such as archeological or historic sites;
'habitats of endangered or threatened species; environmentally
Important natural resources such as floodplains, wetlands,
Important farmlands, or acquifer recharge zones.
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OSWER DIR. #9318.0-05
t The action is known or expected not to be cost-effective, or to
cause significant public controversy.
Categories of Generic Exclusions* may be created if:
• None of the conditions above are met, and
• Adequate information exists to determine that the Generic
Exclusion is appropriate for the type of response being
considered.
For purposes of NEPA, no environmental review or public comment is required
for a response option that is considered to be a Generic Exclusion. (Public
comment will have already been accommodated at the time that Generic
Exclusions were first defined for the removal program and published in the
Federal Register.) Based on the definition of a Generic Exclusion, there
are limited types of response activities which may qualify for an exclusion.
There are three instances where, use of a Generic Exclusion would be
appropriate. In the first case, there is only one reasonable alternative
for action, it has no measurable environmental impact, and it qualifies as a
Generic Exclusion. An EE/CA is necessary to meet removal program
requirements for non-time-critical removals, but an environmental review and
public comment period are not necessary. In the second case, all the
alternatives considered meet the qualifications of a Generic Exclusion.
Preparing an EE/CA is necessary to meet program requirements for non-time-
critical removals; however, for NEPA purposes, no environmental review or
public comment period is required. The final case consists of several
alternatives ...for action, .some of,which have .no measurable envi ronmental _ .
'impact, and some of which do. In'this instance, an EE/CA with an
environmental review and public comment period is required to analyze those
alternatives that do have an environmental impact. However, the generically
excluded alternatives need not be further analyzed.
Examples of actions which may qualify as Generic Exclusions include:
• Minor rehabilitation of existing treatment facilities or
structures.
• Replacement of equipment.
• Temporary continuance of pumping, treatment, or disposal
operations initiated by States or local governments and terminated
for lack of State or local funding.
To use Generic Exclusions, a list of removal actions that qualify for
Generic Exclusions based on the criteria described above will be developed
and published in the Federal Register for public comment.
i
To implement a removal action that qualifies for a Generic Exclusion at a
specific site, the public must be informed that an action has been granted a
Generic Exclusion. When the action memo is signed, such notice must be
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OSWER DIR. #9318.0-05
provided In a newspaper of general circulation In the area. Removal program
community relations requirements must be met.
IMPLEMENTATION STRATEGY . ,
As stated earlier, Classic Emergency and Time-Critical Removal Actions are
exempt from NEPA environmental review and public participation requirements
based on statutory conflict. It should be noted, however, that an analysis
of alternatives 1s performed for all removal actions, although it need not
be extensive if time constraints preclude detailed analysis.
For Non-Time-Critical Removal Actions, adequate time 1s generally available
for a formal environmental review and public comment period. To fulfill
environmental review requirements for Non-Time-Critical Removal Actions, the
following 1s proposed:
1. A 11st of types of removal actions that would be eligible for
Generic Exclusions will be developed by EPA and published in the
Federal Register for public comment. To Implement these removal
actions at .specific sites, OSCs/RPMs would give appropriate public
notice that the proposed action has been granted a Generic
Exclusion. An EE/CA is necessary for decision documentation, but
does not have to include an environmental review and public comment
period.
2. For all other Non-Time-Critical Removal Actions, OSCs/RPMs will be
.required to prepare, an EE/CA which includes an environmental
review and an opportunity for public comment.
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