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- ,.— _">.»>: ------- 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 ------- 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. ------- 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 ------- 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 ------- 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. ------- 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 ------- 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. ------- |