&EPA
United State*
Environmental Protection
Agency
Off ice of
Solid Wane and
Emergency Response
DIRECTIVE NUMBER:
TITLE:
9360.2-02
Policy on Management of Post-Removal Site
Control
APPROVAL DATE: 12/3/90
EFFECTIVE DATE:
ORIGINATING OFFICE:
12/3/90
OSWER
D DRAFT
STATUS:
REFERENCE (other documents):
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE D
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Scott Maid
Mai Code
OS-210
Office '
ERD
Telepnone Code
382-7735
J " .J USWfcri Directive Initiation Request
93>50-2-02
Policy on Management of Post-Removal Site Control
4. Summary ol Directive (include Bn«< »iatsrn«nt of purpose)
Transmits OSWER policy on management of post-removal siteControl for
Fund-financed removal actions and communicating decisions to States on the
use of institutional controls.
3. Keywords'
Superfund; removal; NCE; institutional controls
S4. OCI> This Directive Supersede Previous Oireciive(s)7
b. Oo«t B Supplement Previous 0 OSWtH 01r»etJvM System Format Standards.
9. Signature ol teed Office Directives Coordinator
Betti C. VanEpps, Superfund Documents coordinator
Don Clay, Assistant Administrator^ OSWER
Date
n— n — /j
'- '- j O
Oete
•- ' ~ *D
V,'
EPA form Ut«-i7 (Rev. t-47) Previous editions are obsolete.
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
TEC 3
SOLID WASTE AMD EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Policy on Management of Post-Removal Site Control
(OSWER Directive 9360.2-02)
FROM: Don R. Clay
Assistant Administrat
TO: Regional Administrators, Regions I-X
Directors, Waste Management Division
Regions I, IV, V, VII, VIII
Directors, Hazardous Waste Management Division
Regions III, VI
Director, Emergency and Remedial Response Division
Region II
Director, Toxics and Waste Management Division
Region IX
Director, Hazardous Waste Division, Region X
Directors, Environmental Services Division
Regions I, VI, VII
Purpose
This memorandum transmits the Office of Solid Waste and
Emergency Response (OSWER) policy on management of post-removal
site control for Fund-financed removal activities and
communicating decisions to States on the use of institutional
controls.
OSWZR~is concerned that the Superfund removal program has
become increasingly involved with protracted and costly site
control activities following. mJ.tigatJLon_of_a_ release or threat of
release of a hazardous substance or pollutant or contaminant.
These response activities are more appropriately conducted by the
affected State, local unit of government, potentially responsible
party (PRP) , or, in some cases, by the Superfund reme.di.al. ....
program. .
Pruiltd «* Kteycl*4 Paptr
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OSWER Directive No.'9360\2-02
Objective
This memorandum provides procedures to ensure that, when
necessary and to the extent practicable, provision for post-
removal site control at both National Priorities List (NPL) and
non-NPL sites is made prior to initiation of a Fund-financed
removal action. Procedures are also provided for communicating
decisions to States on the use of institutional controls when
waste is left on site following a removal action.
Implementation
Prior to the initiation of Fund-financed removal activities
at a site, provision for conduct of post-removal site control may
be made with:
1) The affected State or local unit of government for any
removal; or
2) A PRP; or
3) EPA's remedial program for eligible responses at an NPL
site.
EPA must also inform States of any decision or recommen-
dation concerning the use of institutional controls following
removal actions where waste is left oh site. No State commitment
for institutional controls is required prior to the initiation of
Fund-financed removal activities.
Definitions
"Post-removal site control" refers to those response
activities that are necessary to sustain the integrity of a Fund-
financed removal action following its conclusion. Post-removal
site control activities, such as relighting gas flares, replacing
filters, and collecting leachate are necessary for assuring the
continuing effectiveness of a removal action after the completion
of the Fund-financed removal activities. Post-removal site
control continues until such time as:
1Note that these "post-removal site .controls" may themselves
be "removal" or "remedial" actions within the meaning of
CERCLA §§101(23) and 101(24).
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OSWER Directive No. 9360.2-02
1) A PRP, a unit of State or local government, or the
remedial program implements a permanent remedy; or
2) No further site control is necessary.
"Institutional controls" generally limit human activities at
or near facilities where hazardous substances, pollutants, or
contaminants exist or will remain on-site. Examples of
institutional controls include land and resource (e.g., water)
use and deed restrictions, well-drilling prohibitions, building
permits, and well use advisories and deed notices.
State or PRP Commitment for Post-Removal Site Control
Before commencing a Fund-financed removal action where post-
removal site control is anticipated, the Region should obtain a
commitment from the State, local government, or PRP agreeing to
perform and fund the actions necessary to sustain the integrity
of the removal action. Attachment 1 describes the procedures for
obtaining a commitment from State or local governments for post-
removal site control. For classic emergencies and some time-
critical responses, the commitment may be obtained after
initiation of urgent removal actions rather than risk delaying a
response.
Post-removal site control may be considered part of a
remedial action at a site. Therefore, where a State incurs post-
removal site control expenditures for eligible response
activities implemented since the passage of SARA (October 17,
1986) at a site that is currently or eventually listed on the
NPL, the State may submit a claim for credit under section
104(c)(5)(B) of CERCLA. Attachment 2 provides information on the
requirements for CERCLA credits and how they apply to post-
removal site control expenditures. Attachment 3 describes how to
obtain CERCLA credits.
The Regions may secure post-removal site control from a PRP
by using a consent order or unilateral administrative order
(UAO). Th« exact controls should be described in the order and
it should be clear that the post-removal site controls are an
enforceable part of the order. . Although a UAO does not involve a
commitment from the PRP, in most cases, a UAO will provide EPA
with a mechanism for ensuring that post-removal site control will
be performed. In any event, the Region must include in the site
enforcement strategy a contingent approach if the PRPs do not
comply with the UAO.
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OSWER Directive No. 9360.2-02
Remedial Program Option for Post-Removal site Control
In special circumstances, EPA's remedial program may assume
responsibility for post-removal site control at an NPL site when
the site control measures support, or are a part of, the final
remedial action to be taken at a site. The remedial program may
assume responsibility for post-removal site control as part of
the temporary source control measures to be incorporated into an
interim action, when such action is warranted. Under this
arrangement, the Remedial Project Manager (RPM) will negotiate a
Superfund State Contract (SSC) or Cooperative Agreement with the
State for cost share and future operation and maintenance (O&M)
commitments for the remedial action. See OSWER Directive
9355.3-02, "Interim Final Guidance on Preparing Superfund
Decision Documents: the Proposed Plan, the Record.of Decision,
Explanation of Significant Differences, and the Record of
Decision Amendment" (November 1989) for further guidance on
interim actions and when they may be appropriate.
Where Mo commitment for Post-Removal site Control is Reached
At a site where no private or governmental entity is willing
or able to assume responsibility for post-removal site control,
EPA should avoid taking any action that requires continuing site
control activities if other reasonable response options exist.
Where there are no other options, EPA will respond only to the
initial threat, ensuring that the emergency created by the
release or threat of release has been mitigated.
Institutional Controls
EPA must inform States of any decision or recommendation
concerning the use of institutional controls following removal
actions where waste is left on site. This information must be
included in EPA's post-removal site control notification letter
to the affected State. A model notification letter is provided
in Attachment 4.
For More Information
If there are questions or comments on this policy, please
contact Elizabeth Zeller of the Emergency Response Division at
FTS 382-7735.
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OSWER Directive No. 9360.2-02
Attachments
cc: superfund Branch Chiefs, Regions I-X
OHM Coordinators, Regions I-X
Henry Longest II
Bruce Diamond
Timothy Fields, Jr.
Stephen Luftig
Paul Nadeau
Clem Rastatter
Larry Reed
Earl Salo
Howard Corcoran
John Riley
Elizabeth Zeller
Betti VanEpps
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ATTACHMENT 1. Procedures For Obtaining Post-Removal Site Control Commitment
From State/Local Government
REGION
Identify post-removal
site control requirements,
cost, and duration.
Send notification
letter to the State.
Send letter of
commitment to EPA.
See Attachment 4 for sample notification letter
See Attachment 5 for sample State commitment letter.
Note: If the State intends that a local government will assume
responsibility for post-removal site control, the State, local
government, and EPA should document that decision in
correspondence. In these cases, the local government may
prepare and submit the letter of commitment* The State must
also provide assurances under CERCLA section 104 in a
Superfund State Contract (SSC) before a local government
may take the lead for any phase of a remedial response (see
Attachment 6 for SSC clauses).
States may not claim credit for expenditures by local governments. A pass-through of funds
from States to local governments is, however, acceptable. See Attachment 2 for additional
eligibility requirements for obtaining CERCLA credit.
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ATTACHMENT 2. Eligibility Requirements for Obtaining CERCLA
Credits for Post-Removal Site Control Activities
Is the site listed
on ihe NPL?
ere expenses
incurred between
January 1,1978 and
December 11,1980. or
after October 17.
1986?
Are expenses
reasonable, documen
and direct out-of-pocket
expenditures of
non-Federal
funds?
Have
expenditures been
reimbursed previously by
the Federal government or
another entity?
Were expenses
incurred by other
entities, such as local
units of government?
Post-removal site control expenses incurred by the State until a permanent
remedy is implemented are eligible for CERCLA credit.
The State may not claim
credit for post-removal site
control at a site that is not
ultimately listed on the
NPL.
The State may only claim
credit for expenditures for
activities implemented
during these time periods.
The State is not eligible for
CERCLA credits for
expenses that do not meet
these criteria.
The State is not eligible for
credit for expenses for
which they have already
been reimbursed.
The State is not eligible for
credit for expenses incurred by
other entities.
Note: A pass-through of funds
from States to local
governments is acceptable and
should be negotiated
independently between
the Slate and local government.
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Credits
Document pre- and post-
removal expenditures in
the response agreement.
A Cooperative Agreement or a Superfund State Contract (SSC)
is required before remedial activities commence at an NPL site, or
at the time a site is ultimately listed on the NPL.
Document post-removal
site control activities in a
Statement of Work
(SOW) and the response
agreement.
The SOW should include sufficient detail to facilitate both
technical and financial review.
If changes in the SOW are needed, an amendment should be made
to the appropriate response agreement tor preserve the State's credit.
Claim credit on a site-
specific basis and apply
credit first to off-set cost
share at the site where it
was originally earned.
If the amount of credit is insufficient to meet the State's cost-share
requirement, the State is responsible for providing the remainder of
the cost-share in cash or services.
If the following conditions apply:
Ongoing activity
at NPL sites:
Excess credit exists:
Selected remedy is a
"no action" alternative:
Responsible party lakes
lead for remedial action:
The State may continue to
claim credit as amend-
ments are made to the
Cooperative Agreement
or SSC.
The State may continue to
claim credit as additional
obligations are made to the
State for remedial response.
The State may use excess
credit earned at one NPL
site to offset its cost share
at another NPL site (upon
EPA approval). Excess
credit is not reimbursable.
State work at a non-NPL
site cannot be credited
unless the site becomes
listed on the NPL
Credit may not be received
for post-removal site
control expenses after a "no
action" alternative is
selected and the Record of
Decision is signed.
EPA will negotiate with
the responsible party to
ensure payment for the
post- removal site control
(if the responsible party is
not willing to assume these
costs, the State can claim
credit as shown above).
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OSWER Directive No. 9360.2-02
Attachment 4
SAMPLE EPA NOTIFICATION LETTER
Name of State
State Hazardous Waste Management Official
Address
Dear :
As discussed in a conversation on rdatel between the U.S.
Environmental Protection Agency (EPA) and the State of rnamel,
EPA is planning to initiate (or has initiated) a Fund-financed
removal action at the (site name! site pursuant to section 104 of
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (CERCLA). To ensure the
continuing effectiveness of the removal action, post-removal site
control and institutional control activities are necessary.
The purpose of this letter is to request that the State of
[name1 provide EPA with a written commitment that the State will
assume responsibility for all post-removal site control
activities at the Fsite name] site until such time as a permanent
remedy is implemented or until no further site control is needed.
EPA would also like to use this opportunity to inform the State
of [name] about the use of institutional controls at Fsite name]
site. . _
Removal activities planned (or being conducted) by EPA at
the site include: riist]. EPA expects that the Fund-financed
removal action will be complete on rdatel, at which time post-
removal site control and institutional control activities must
commence.
At this time, EPA anticipates the need for the State to
conduct the following post-removal site control activities:
[list!. EPA also anticipates the need for implementation of the
following institutional controls: [list]. These and any other
actions necessary to ensure the effectiveness of the removal
action ar« considered essential post-removal site control
activities.
Post-removal site control is considered to be part of the
remedial action at sites that are currently or eventually listed
on the National Priorities List (NPL). Therefore, the State may
claim credit for all post-removal site control activities imple-
mented subsequent to the Superfund Amendments and Reauthorization
Act of 1986 (October 17, 1986). Please note that to claim credit
for direct, out-of-pocket post-removal site control expenditures
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OSWER Directive No. . 9360-.2-02
incurred by the State, a Superfund Cooperative Agreement or
Superfund State Contract must be in place. AH CERCLA credits
are subject to verification in an audit conducted by the EPA
Office of the Inspector General. Letters from the State to EPA
assuming responsibility for post-removal site control are not
appropriate vehicles for documenting expenditures and do not
replace the statutory requirements for a Cooperative Agreement or
Superfund State Contract for the purpose of applying a credit to
offset the cost of remedial action at an NPL site.
Regulatory requirements for post-removal site control are
contained at 40 CFR Part 300 (the National Oil and Hazardous
Substances Pollution Contingency Plan). [The regulations and
procedures to obtain credit are specified at 40 CFR Part 35,
Subpart O (Final Rule for Cooperative Agreements and Superfund
State Contracts for Superfund Response Actions).] You may obtain
EPA guidance on post-removal site control and institutional
controls from [contact, phone number]. Please provide your post-
removal site control commitment for this site to fname]. Regional
Administrator, by [date]. If you have questions regarding these
issues, please direct your inquiries to fcontact; phone number!.-
Sincerely,
fNamel
Superfund Branch Chief
Region rNumber1
cc: Region rnumber! Coordinator, ERD (OS-210)
(Add all appropriate recipients)
10
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OSWER Directive No. 9360.2-02
Attachment 5
SAMPLE STATE COMMITMENT LETTER
Name
Regional Administrator
Region [Njjm&firJ
U.S. Environmental Protection Agency
Address
Dear :
In response to your letter of [data], the State of fnamel
understands that Superfund monies are being used to perform
removal activities at fsite name! pursuant to section 104 of the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended (CERCLA), and that post-removal site
control will be necessary to ensure the continuing effectiveness
of the Fund-financed removal action. The State of [name] commits
to assume responsibility for post-removal site control activities
at the rsite name") hazardous waste site until such time as a
permanent remedy is implemented or until no further site control
is needed.
It is expected that Fund-financed removal activities
conducted by the U.S. Environmental Protection Agency (EPA) will
cease on rdatel, at which time the State will commence post-
removal site control. The State acknowledges that the following
post-removal site control activities may be required: [list].
The State commits to conduct these and any other actions
necessary to ensure the effectiveness of the removal actions.
The State understands that it may claim a credit for direct,
out-of-pocket expenditures of non-Federal funds associated with
post-removal site control at the Fsite name] hazardous waste site
if this sit* is currently or eventually listed on the National
Priorities List (NPL). The State also acknowledges that there
must be a stapsrfund Cooperative Agreement or Superfund State
Contract iaplace prior to claiming a credit for State
expenditure* associated with these activities and assumes
responsibility: for initiating an appropriate response agreement.
11
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OSWER Directive No. 9.360.2-02
If questions arise pertaining to post-removal site control
activities at the ("site namel in the future, please direct your
inquiries to [contact, phone number!.
Sincerely,
rNamel
Hazardous Waste Management Official
cc: Super fund Branch Chief, Region [
(Add all appropriate recipients)
12
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OSWER Directive No. 9360.2-02
Attachment 6
SUPERFUND STATE CONTRACT CLAUSES
SPECIFIC TO POST-REMOVAL SITE CONTROL
A Superfund state Contract (SSC) is a legally binding and
enforceable document that details a State's compliance with
statutory and regulatory requirements for Superfund responses,
that ensures State involvement under section 121 of CERCLA, and
that provides the necessary assurances required under CERCLA
section 104 when either EPA or a political subdivision assumes
lead responsibility for performing a Fund-financed response. The
SSC includes post-removal 'site control, where applicable, and --
sample clauses containing standard language concerning post-
removal site control are provided below.
Contents of an SSC
For all SSCs involving post-removal site control, include this clause:
This is an agreement between the U.S. Environmental
Protection Agency (EPA) and the State of ("name) to conduct post-
removal site control including the following activities [type of
activities! to be undertaken at [site name], to satisfy the
requirements of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (CERCLA), and
all applicable regulations. .The Comprehensive Environmental
Response, Compensation, and Liability Information System
(CERCLIS) identification code for this site is [number]. This
Contract covers only those activities described in the Statement
of Work (SOW) attached hereto and incorporated herein as Appendix
[_]. This Contract may be amended if the parties agree to under-
take additional remedial activities beyond the SOW.
c'nmni'i.tmant to Perform Post—Removal Site Control
For all SSCs involving post-removal site control, include this clause:
The State fnamel agrees to implement all future post-removal
site control activities required at the site provided for under
this Contract for the expected life of such actions. EPA will
ensure that.the State is adequately.informed of progress during
2 All clauses must comply with EPA's Final Rule on
Cooperative Agreements and Superfund State Contracts for
.Superfund Response Actions at 40 CFR Part 35, Subpart 0
(54 Federal Register 22994, June 5, 1990).
13
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OSWER Directive No. 9360/2-02
removal actions and of requirements for implementing post-removal
site control.
Cost-share
The following clause3 should be used to document State cost-share:
Sections 104(c)(3) and 104(d)(l) of CERCLA, as amended,
require that EPA determine whether the Site was publicly or
privately operated at the time of the release, in order to
determine the State's cost-share. This Site was [CHOOSE]
(publicly) (privately) operated; therefore, the state's cost-
share is (CHOOSE] (10) (50) percent. The estimated cost of the
remedial action (excluding EPA's indirect costs) is [$ ]. This
estimate is derived from the [CHOOSE source] {costs itemized in
the SOW) (Record Of Decision) (design specifications) and
includes contingencies for change orders, which may or may not be
invoked, and construction management services.
State CERCIA Credit
The following sample clause4 should be used fo document applicable CERCLA
credits:
CERCLA credit may be applied to offset the State's cost-
share requirements of this contract, including provisions for
post-removal site control. The State [CHOOSE] (declares) (does
not declare) credit for costs incurred at the Site. [Include the
following, as appropriate:] Credits are limited to site-specific
expenses that EPA determines to be reasonable, documented,
direct, out-of-pocket expenditures of non-Federal funds that have
not been previously applied or reimbursed. [CAVEAT: States may
not transfer remaining credits from another site, unless EPA
gives prior, written approval. Call EPA Headquarters—Superfund
State Involvement Section—for assistance.]
The State declares that it has a CERCLA credit of [$ ] for
costs incurred at this Site, satisfying [cite applicable
requirement* in 40 CFR 35.6285(c)(1)]. Technical and financial
documentation to support this credit declaration may be examined
The language of these clauses is taken directly from the
document "Classic Two-Party Superfund State Contract (SSC)
Model Clauses," Version 1.0, August 1990.
4 See footnote 3.
14
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OSWER Directive No. 9360..2-02
to verify the credit, pursuant to 40 CFR 35.6285(c)(2)(i). This
documentation is available for inspection at [specify state
location]. In the event that verification reveals less than
[$ ] in available credit, then the State shall pay the
difference and document such in this Contract. Excess credit
will not be reimbursed, but with EPA approval, excess credit may
•be applied to another site.
[If the State has incurred costs pursuant to a Cooperative..
Agreement or Superfund State Contract for either remedial
planning activities before 1984, or advance match prior to
October 17, 1986, pursuant to 40 CFR 35.6285(f), then include
these costs in this section to off-set State's cost-share
requirement, and enumerate such agreements under List of Site-
Specific Agreements section of the SSC for the site.]
The State [CHOOSE] (has) (has not) entered into a
Cooperative Agreement before incurring costs at the Site. [If a
CA was entered into prior to costs incurred, then include the
following:] EPA has authorized the State to incur costs for the
remedial action expenditures after the Site is listed on the NPL
and after October 17, 1986, to obtain credit, which is accepted
at face value, until verified by audit and technical review of
the activities undertaken at the [CHOOSE Scope of Inspection]
(Site) (operable units). [Reference CA/SSC in List of Site-
Specific Agreements section of the SSC for the site.]
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1 AGENCY USŁ
2. REPORT DATE
REPORT TYPE AND DATES COVERED
4. TITLE AND SUBTITLE
Policy on Management of Post-Removal Site Control
(OSWER Directive 9360.2-02)
6 AUTHOR^.
Scott Maid, OERR/ERD, 382-4671
s. FUNDING NUMBERS
7. PERFORMING ORGANIZATION NAME(S) AND ADDRESS(ES)
Environmental Protection Agency
Office of Solid Waste and Emergency Response
401 M Street SW
Washington, D.C. 20460
PERFORMING ORGANIZATION
REPORT NUMBER
9. SPONSORING/MONITORING AGENCY NAME(S) ANO ADDRESS(ES)
Environmental Protection Agency
Office of Emergency and Remedial Response
401 M Street SW
Washington D.C. 20460
tO. SPONSORING MONITORING
AGENCY REPORT-NUMBf*-
11. SUPPLEMENTARY NOTES
\2t. DISTRIBUTION AVAILAB;L:TY STATEMENT
120. DISTRIBUTION CUJt
13. ABSTRACT I
Prior to the initiation of removal actions under the Comprehensive
Environmental Response, Compensation, and Liability Act, as amended
(CERCLA), provisions should be made for post-removal site control.
Post-removal site control comprises those response activities that are
necessary to sustain the integrity of a Fund-financed removal action
following its conclusion. This guidance document (OSWER Directive
9360.2-02) provides procedures to ensure that, when necessary and to
the extent practicable, provision is made for post-removal site control
at all sites where Fund-financed removal actions are conducted. The
guidance also discusses State CERCLA credit procedures.
u. SUBJECT TERMS
•
17. SECUR'T* CLASSlflCA7:CN
OF REPORT
18 SECURITY CLASSIFICATION
OF THIS PAGE
19. SECURITY CLASSIFICATION
OF ABSTRACT
16. PRICE COOt
\v.
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13 1990
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