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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