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-10-
sarapling or testing, and adequate records of site activity must be
kept. Employees of any contractor used for site activity must
cooperate with and be made available to the U.S. in preparation
and trial of any subsequent enforcement action. 'Enforcement,
program and legal offices should work together throughout the
ca.se development.
• *
VI. FOLLOW-UP
This guidance represents a substantial departure from prior
practice, and I expect that it will take some time to implement.
For these reasons, I will be reviewing all immediate removals
referred to Headquarters for compliance with this guidance. In
addition, for immediate removals under 5250,000, I will ask the
Directors, OWPE and OERR to review the compliance with this guidance
quarterly, and to advise me accordingly.
Appendix
c=: Gene Lucero, CW?
William Hedenan,
Kirk Sniff/ OECM
Dan Berry, OGC
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APPSHDIX
Author ity/Requi cements/Enforcement of Administrative Orders
for Removal Actions under CERCLA
Under 5l06(a) of CERCLA:
If, E?A, acting on behalf of the President:
determines that there may be an imminent and substantial
endangerment to the public health or welfare or the
environment because of
an actual or threatened release of a hazardous substance
from a cacility
may, after notice to the affected state,
issue such orders as may be necessary to protect
public health and welfare and the environment.
Under S'l06(b) of CERCLA:
EPA may take action in the appropriate U.S. district
court, against any person who willfully violates or
fails or refuses to comply with any Order issued under -
S106(a)-, to enforce such order and
may fine such person not more than 55,000 for each day
such violations occur or such failure to comply continues.
Under S107(c)(3) of CERCLA:
Any person who is liable for a release or threat of release
of a hazardous substance that:
fails without sufficient cause to properly provide
removalaction upon order ofthe President pursuant to
5106
may be liable to the United States for punitive damages in
an amount at least equal to and not more than' three tiroes/
the amount of any costsincurred by the Fund as a result
of such failure to take proper action.
Civil action may be commenced against any such person to
recover the punitive damages. These punitive damages .shall
be in addition to any costs recovered from'-such person - —-
pursuant to $112(c).
Any monies received in punitive damages shalL be deposited
in the Fund. • _..
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APPENDIX PAGZ 2
^ *
National Contingency Plan Requirements for Immediate Removals
Under 5300.65 of the NC?:
Inmediate Removal action is appropriate when the lead agency
determines that:
• the initiation of the removal action.will prevent or
mitigate immediate and significant risk of harm to
human life or health or to the environment from such
situations as:
1. Human, animal, or food chain exposure to
acutely toxic substances
2. Contamination of drinking water supply
3. Fire and/or explosion
4. Similarly acute situations
Immediate removal action may include but are not limited to:
1.-Collecting and analyzing samples to determine
• the source and dispersion of the hazardous
substance
2. Providing alternative-water supplies
3. Installing security fencing, or other measures
to limit access
4. Controlling the source of the release
5. Measuring and sampling
€. Moving hazardous substances off-site for storage,
destruction, treatment or disposal
7. Placing"physical barriers to deter .the spread
of the release
8 .'.Controlling the water discharge from an upstream
impoundment
9. Recommending to the appropriate authorities'
the evacuation of threatened individuals .__"__-
•*« _
10. Using chemicals and other materials in accordance
with Supart H to restrain the spread of the
substance and mitigate its effects
11. Executing damage control or salvage operations
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Procedures for Authorizing Application
for Civil Search Warrants Under CERCLA
-------
Memorandum
Subject
CMC
Procedures for Authorizing Application
for Civil Search Warrants Under CERCLA
April 3, 1987
To
All EES Attorneys
From
Buente, Jr.
Environmental
ment Section
Under § 104 (e) of CERCLA, as amended by SARA, the
United States may seek access by warrant, administrative order,
or court order. If access is obtained by administrative order,
the appropriate documents are issued by relevant client agencies.
If access is to be obtained by court order, then the Assistant
Attorney General of the Land and Natural Resources Division must
approve the complaint, upon referral from the relevant client
agency according to ordinary procedures. For access to be sought
through application on a civil CERCLA warrant,1 the instant
memorandum will confirm the procedures to be used by the
Department of Justice.
Under 15.320-A-2 of the U.S. Attorney's Manual,
application for warrant under CERCLA may not be handled
unilaterally by the U.S. Attorneys. Applications for such
warrants must be coordinated through the Environmental
Enforcement Section.
Clearance through the Environmental Enforcement Section
is important for a variety of reasons. First, the nature of the
governmental activities involved under CERCLA civil warrants may
be much broader and last considerably longer than an inspection
under the other federal environmental regulatory statutes.
Typically the latter require only a few days or weeks to conduct
routine environmental sampling. Under CERCLA, access may be
sought under a warrant for not only sampling, but even simple
1 The memorandum does not cover procedures for seeking a
criminal search warrant where a CERCLA violation may be
involved. All such matters are to be referred to the Director,
Environmental Crimes Unit, EES.
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- 2 -
removal-type activity, e.g., security/fencing, limited drum
removal. The greater relative complexity of the governmental
activity involved can be expected to provoke more challenges to
CERCIA civil warrants than those under other statutes and the
issues raised by CERCIA warrants may be much more complex.
Second, this is a relatively new and vital area of the law. We
must ensure that maximum efforts are made to develop this
critical area of the law in an excellent manner. EES lawyers
must make all reasonable efforts to ensure that exercises of the
civil warrant authority under CERCIA will be vindicated by the
federal courts, through proper presentation of facts and legal
arguments by Departmental attorneys with experience in this area.
Finally, since our experience has shown that judicial challenges
to civil CERCIA warrants tend to move very rapidly, sometimes on
an emergency motion basis, EES needs to work closely with client
agencies on these matters so that the Division's Appellate
Section is advised and prepared with sufficient lead time to
expeditiously address appellate proceedings.
Coordinating these warrant applications through EES
must be done on an expedited basis so that client agencies'
program objectives are achieved. Moreover, our resources must
not be consumed by duplicative work. Balancing the needs for
careful warrant application preparations with that for
expeditious handling of these matters, we will use the following
procedures:
1. The client agency will telephonically notify the
relevant EES Assistant Chief or Senior Lawyer when the Agency
plans to seek a civil warrant.
2. The client agency will follow-up the request by
expeditiously transmitting a short memorandum concisely
explaining why the warrant is needed with a draft copy of the
warrant application and supporting affidavits.
3. Upon receipt of the telephonic notification or
written request, whichever first occurs, the EES Assistant Chief
or Sr. Lawyer will arrange for either an EES staff attorney or an
AUSA to handle the review and prosecution of the application.
Unless a dispute develops between EES/AUSA personnel and the
client agency, the EES Assistant Chief or Sr. Lawyer may approve
the application. If such'a dispute develops, it must be brought
to the attention of the Chief or Deputy Chief, EES for
resolution.
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- 3 -
4. Handling of these matters is to be afforded
priority on our docket. Moreover, the Chief or Assistant Chief
of the Appellate Section shall be advised of each application
requesfT by the EES Assistant Chief or Sr. Lawyer as soon as
possible after notification by the client agency, so that
Appellate can be prepared to handle expeditiously appeal matters,
5. All civil actions to enforce civil CERCLA warrants,
by way of application for civil contempt or other judicial
orders, shall be authorized in writing by the Assistant Attorney
General. Such actions shall be afforded highest priority on the
docket.
For general advice/guidance on handling CERCLA civil
warrant matters, contact John Fleuchaus, ORCM-Waste, 382-3109.
Attachment
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Entry and Continued Access
Under CERCLA
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S UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON. D.C. 20460
JUN-5I9ST
OSWER DIRECTIVE
9829.2
OFFICE Of
ENFORCEMENT AMD
COMPLIANCE MONITORING
MEMORANDUM
SUBJECT: Entry and Continued Access Under CERCLA
FROM: Thomas L. Adams, Jr. Vft \ V Q
Assistant Administrator *>5CSrV-*rv\>^A-' V>y . ^K ek*si-*^>^
TO: Regional Administrators I-X
Regional Counsels I-X
I. INTRODUCTION
This memorandum sets forth EPA's policy on entry and
continued access to facilities by EPA officers, employees, and
representatives for the purposes of response and civil enforce-
ment activities under CERCLA. I/ In short, the policy recommends
that EPA should, in the first Tnstance, seek to obtain access
through consent. Entry on consent is preferable across the full
range of onsite activities. If consent is denied, EPA should
use judicial process or an administrative order to gain access.
The appropriate type of judicial process varies depending on
the nature of the onsite activity. When entry is needed for
short-term and non-intrusive activities, an ex parte, judicial
warrant should be sought. In situations involving long-term or
intrusive access, EPA should generally file suit to obtain a
court order.
The memorandum's first section addresses the recently amended
access provision in CERCLA. The memorandum then sets forth EPA
policy on obtaining entry and the procedures which should be
used to implement this policy, including separate discussions on
consent, warrants, court orders, and administrative orders.
I/ This policy does not address information requests under
Section 104(e)(2).
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- 2 -
II. STATUTORY AUTHORITY
EPA needs access Co private property to conduct investiga-
tions, studies, and cleanups. The Superfund Amendments and
Reauthorization Act of 1986 (SARA) explicitly grants EPA 2/ the
authority to enter property for each of these purposes. Section
104(e)(1) provides that entry is permitted for "determining the
need for response, or choosing or taking any response action
under this title, or otherwise enforcing the provisions of this
title."
SARA also establishes a standard for when access may be
sought and defines what property may be entered. EPA may exercise
its entry authority "if there is a reasonable basis to believe
there may be a release or threat of a release of a hazardous
substance or pollutant or contaminant." S 104(e)(1). SARA,
however, does not require that there be a release or threatened
release on the property to be entered. J3/ Places and properties
subject to entry under Section 104(e) include any place any
hazardous substance may be or has been generated, stored, treated,
disposed of, or transported from; any place a hazardous substance
has or may have been released; any place which is or may be
threatened by the release of a hazardous substance; or any place
where entry is needed to determine the need for response or the
appropriate response, or to effectuate a response action under
CERCLA. S 104(e)(3). EPA is also authorized to enter any place
or property adjacent to the places and properties described in
the previous sentence. S 104(e)(1).
EPA is granted explicit power to enforce its entry authority
in Section 104(e)(S). Under that provision EPA may either issue
an administrative order directing compliance with an entry request
or proceed immediately to federal district court for injunctive
relief. Orders may be issued where consent to entry is denied.
Prior to the effective date of the order, EPA must provide such
notice and opportunity for consultation as is reasonably appro-
priate under the circumstances. If EPA issues an order, the
order can be enforced in court. Where there is a "reasonable
basis to believe there may be a release or threat of a release of
a hazardous^substance or pollutant or contaminant," courts are
instructed to enforce an EPA. request or order unless the EPA
2_/ Although CERCLA and SARA confer authority upon the President
that authority has been delegated to the EPA Administrator.
Exec. Order No. 12580, 5 2(g) and (i), 52 Fed. Reg. 1923 (1987).
3/ The House Energy and Commerce bill at one point contained
~ this limitation. H.R. Rep. No. 99-253 Part 1, 99th Cong,. 1st
Sess., 158 (1985). This limitation, however, was dropped prior to
introduction of the bill for floor debate. See H.R. 2817, 99th
Cong., 1st Sess., 131 Cong. Rec. H10857 (December 4. 1985).
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- 3 -
"demand for entry or Inspection is arbitrary and capricious, an
abuse of discretion, or otherwise not in accordance with law."
§ 104(e)(5). The legislative history makes clear that courts
should enforce an EPA demand or order for entry if EPA'3 finding
that there is a reasonable basis to believe there may be a release
or threat of release is not arbitrary and capricious. 132 Cong.
Rec. SI4929 (October 3, 1986) (Statement of Sen. Thurmond); 132
Cong. Rec. H9582 (October 8, 1986) (Statement of Rep. Glickman).
See United States v. Standard Equipment. Inc.. No. C83-252M (W.D.
Wash. November 3. 1986)-In addition, a penalty not to exceed
$25,000/day may be assessed by the court for failure to comply
with an EPA order or the provisions of subsection (e).
Finally, Section 104(e)(6) contains a savings provision
which preserves EPA's power to secure access in "any lawful
manner." This broad savings provision is significant coming
in the wake of the Supreme Court's holding that:
When Congress invests an agency with enforce-
ment and investigatory authority, it is not
necessary to identify explicitly each and every
technique that may be used in the course of
executing the statutory mission.
. . . Regulatory or enforcement authority
generally carries with it all the modes of
inquiry and investigation traditionally employed
or useful to execute the authority granted.
Dow Chemical Co. v. United States, 90 L.Ed. 2d 226. 234 (1986). 4/
One lawful means of gaining access covered by this paragraph is
use of judicially-issued warrants. See S. Rep. No. 99-11, 99th
Cong. 1st Sess. 26 (1985).
In numerous instances prior to the passage of SARA, EPA
obtained court rulings affirming its authority to enter property
to conduct CERCLA activities. 5/ Following enactment of SARA,
4/ See also, Mobil Oil Corp. v. EPA, 716 F.2d 1187, 1189 (7th
CTr'.'TgTra) , cert, denied,.466 U.S. 980 (1984) (EPA authority
to sample effluent under Section 308 of the Clean Water Act
broadly construed); CEDs, Inc. v. EPA, 745 F.2d 1092 (7th Cir.
1984), cert, denied, 471 U.S. 1015"TT985).
I/ United States v. Pepper Steel and Alloy, Inc., No. 83-1717-
CIV-EPS (S.D. Fla. October 10, 1986); Bunker Limited Partnership
v. United States. No. 85-3133 (D. Idaho October 21, 1985); United
States v. Coleman Evans Wood Preserving Co.. No. 85-211-CIV-J-16
(M.D. Fla. June 10, 1985); United States v7 Baird & McGulre
Co. No. 83-3002-Y (D. Mass. May 2, 1985); United States v. United '
Nuclear Corp., 22 ERG 1791, 15 ELR 20443 (D.N.M. April 18, 1985) .
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- 4 -
several courts have ordered siteowners to permit EPA access.
United States v. Long, No. C-l-87-167 (S.D. Ohio May 13, 1987);
United States v. Bicker3on, No. 84-76-VAL (M.D. Ga. May 4, 1987);
United States v. Standard~Equipment, Inc.. No. C83-252M (W.D.
Wash. Nov. 3, 1985TIFurther /the one adverse ruling on EPA's
right of access has been vacated by the Supreme Court. Outboard
Marine Corp. v. Thomas, 773 F.2d 883 (7th Cir. 1985), vacated.
93 L. Ed. 2d 695 (1986).
III. EPA ACCESS POLICY
EPA needs access to sites for several types of activities,
including:
0 preliminary site investigations;
0 removal actions;
0 RI/FSs; and
0 remedial actions.
Within each of these categories, the scope of the work and the
time needed to complete that work may vary substantially. This
memorandum sets Agency policy on what means should be used to
gain access over the range of these various activities.
EPA may seek access through consent, warrant, administrative
order, or court order. Consent is the preferred means of gaining
access for all activities because it is consistent with EPA policy
of seeking voluntary cooperation from responsible parties and
the public. In certain circumstances, however, the Region should
consider obtaining judicial authorization or issuing an admini-
strative order in addition to obtaining consent. For example,
where uncertainty exists whether a siteowner will continue to
permit access over an extended period, reliance on consent alone
may result in a substantial delay if that consent is withdrawn.
When consent is denied, EPA should seek judicial authori-
zation or should issue an administrative order. If the judicial -
route is chosen, EPA may seek an ex parte warrant or a court
order. Warrants are traditionally granted for short-term entries.
Generally, warrants should not be used when the EPA access will
involve long-term occupation or highly intrusive activities.
Clearly, warrants are appropriate for preliminary site investiga-
tions. On the other hand, because of the long, involved nature
of remedial actions, access for such projects should be sought
through a request for a. court order. Neither removals nor RI/FSs,
however, can be rigidly matched with a given judicial access
procedure. Depending on the activities to be undertaken and the
circumstances at the site, either a. warrant or a court order may
be appropriate.
-------
In deciding whether Co use a warrant or a court: order when
access is needed for a removal or to conduct a RI/FS, the follow-
ing general principles should be considered. First, if the
activity will take longer than 60 days a court order normally is
appropriate. Second, even if the activity will take less than 60
days, when the entry involves removal of large quantities of soil
or destruction of permanent fixtures, a court order may again be
appropriate. Finally, warrants should not be used if EPA action
will substantially interfere with the operation of onsite business
activities. These Issues must be resolved on a case-by-case basis.
If EPA needs to gain access for a responsible party who has
agreed to undertake cleanup activities under an administrative
order or judicial decree, EPA may, in appropriate circumstances,
designate the responsible party as EPA's authorized representative
solely for the purpose of access, and exercise the authorities
contained in Section 104(e) on behalf of the responsible party.
Such a procedure may only be used where the responsible party
demonstrates to EPA's satisfaction that it has made best efforts
to obtain access. A further condition on the use of this procedure
is that the responsible party agree to indemnify and hold harmless
EPA and the United States for all claims related to injuries and
damages caused by acts or omissions of the responsible party.
The responsible party should also be advised that the expenses
incurred by the government in gaining access for the responsible
party are response costs for which the responsible party is liable.
Before designating any responsible party as an authorized repre-
sentative, the Region should consult with the Office of Enforcement
and Compliance Monitoring.
IV. ACCESS PROCEDURES
A. Entry on Consent
1. General Procedures
The following procedures should be observed in seeking
consent:
Initial Contact. Prior to visiting a site, EPA personnel 6/
should consider contacting the siteowner to determine if
consent will be forthcoming. EPA personnel should use this
opportunity to explain EPA's access authority, the purpose
for which entry is needed, and the activities which will be
conducted.
6/ As used in this guidance, the term "EPA personnel" includes
contractors acting as EPA's authorized representatives.
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Arrival. EPA personnel should arrive at the site at a
reasonable time of day under the circumstances. In most
instances this will mean during normal working hours. When
there is a demonstrable need to enter a site at other times,
however, arrival need not be limited to this timeframe.
Entry must be reasonable given the exigencies of the situation.
Identification. EPA personnel should show proper identifi-
cation upon arrival.
Request for Entry. In asking for consent, EPA personnel
should state the purpose for which entry is sought and
describe the activities to be conducted. EPA personnel
should also present a date-stamped written request to the
owner or person-in-charge. A copy of this request should
be retained by EPA. Consent to entry must be sought
from the owner ]_l or tne person-in-charge at that time.
If practicable under the circumstances, consent to entry
should be memorialized in writing. A sample consent form is
attached. Although oral consents are routinely approved by the
courts, a signed consent form protects the Agency by serving as
a permanent record of a transaction which may be raised as a
defense or in .a claim for damages many years later. If a site-
owner is unwilling to sign a consent form but nonetheless orally
agrees to allow access, EPA should document this oral consent by
a follow-up letter confirming the consent.
Since EPA contractors often are involved in gaining access
in the first instance, the Regions should ensure that their
contractors are acquainted with these procedures.
2. Denial of Entry
If consent is denied, EPA personnel or contractors, before
leaving, should attempt to determine the grounds for the denial.
EPA personnel, however, should not threaten the siteowner with
penalties or other monetary liability or make any other remarks
which could be construed as threatening. EPA personnel may
explain EPA1 s statutory access authority, the grounds upon which
this authority may be exercised, and that the authority may be
enforced in court.
T_l If EPA's planned site activities will not have a physical
effect on the property, EPA generally need not seek consent
from the owner of leased property where the lessee is in pos-
session. The proper person in those circumstances is the lessee.
But where EPA entry will have a substantial physical effect on
the property, both the lessee and the property-owner should be
contacted since in this instance interests of both will be
involved.
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3. Conditions Upon Entry
Persons on whose property EPA wishes to enter often attempt
to place conditions upon entry. EPA personnel should not agree
to conditions which restrict or impede the manner or extent of an
inspection or response action, impose indemnity or compensatory
obligations on EPA, or operate as a release of liability. The
imposition of conditions of this nature on entry should be treated
as denial of consent and a warrant or order should be obtained.
See U.S. EPA, General Counsel Opinions, "Visitors' Release and
Hold Harmless Agreements as a Condition to Entry of EPA Employees
on Industrial Facilities," Gen'l and Admin, at 125 (11/8/72).
If persons are concerned about confidentiality, they should be
made aware that business secrets are protected by the statute
and Agency regulations. 42 U.S.C. S 9604(e); 40 C.F.R. S 2.203(b).
EPA personnel should enter into no further agreements regarding
conf ident iali ty.
B. Warrants
1. General Procedures
To secure a warrant, the following procedures should be
observed:
Contact Regional Counsel. EPA personnel should discuss
with Regional Counsel the facts regarding the denial of
consent or other factors justifying a warrant and the
circumstances which give rise to the need for entry.
Contact Department of Justice. If after consultation with
Regional Counsel a decision is made to seek a warrant, the
Regional Counsel must contact directly the Environmental
Enforcement Section in the Land and Natural Resources Division
at the Department of Justice. 8/ The person to call at
the Department is the Assistant Chief in the Environmental
Enforcement Section assigned to the Region. The Assistant
Chief will then arrange, in a timely manner, for the matter
to be handled by either an Environmental Enforcement Section
attorney or a U.S. Attorney. The Region must send to the
Environmental Enforcement Section, by Magnafax or other
87 This procedure is necessary to comply with internal
Department of Justice delegations of authority. Referral
to a local U.S. Attorney's office is not sufficient for CERCLA
warrants. The Environmental Enforcement Section of the Department
of Jus.tice must approve all warrant applications. (See Memorandum
from David T. Buente, Jr. to All Environmental Enforcement
Attorneys, "Procedures for Authorizing Applications for Civil
Search Warrants Under CERCLA" (4/3/87) attached).
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- 8 -
expedited means, a draft warrant application and a short
memorandum concisely stating why the warrant is needed.
Prepare Warrant Application. The warrant application must
contain the following:
1) a statement of EPA's authority to inspect;
(see S II, supra)
2) a clear identification of the name and location
of the site and, if known, the name(s) of the
owner and operator of the site;
3) a statement explaining the grounds for a finding
of a reasonable basis for entry (i.e., a reasonable
basis to believe that there may be a release or
threatened release of a hazardous substance or
pollutant or contaminant) and the purpose for entry
(i.e., determining the need for response, or choosing*
or taking any response action, or otherwise enforcing
CERCLA);
4) affidavits supporting the asserted reasonable basis
' for entry and describing any attempts to gain access
on consent, if applicable; and
5) a specific description of the extent, nature, and
timing of the inspection;
Following preparation of the warrant application, the
Justice Department attorney will file the application with
the local U.S. Magistrate.
EPA may ask the Justice Department attorney to seek the
assistance of the United States Marshals Service in executing the
warrant where EPA perceives a danger to the personnel executing
the warrant or where there is the possibility that evidence will
be destroyed.
2_ Reasonable Basis for Entry
' iJT' "-.;
A warrant for access on a civil matter may be obtained upon
a showing of a reasonable basis for entry. This reasonable
basis may be established either by presenting specific evidence
relating to the facility to be entered or by demonstrating that
the entry is part of a neutral administrative inspection plan.
A specific evidence standard is incorporated in SARA as a
condition on EPA's exercise of its access authority: EPA must
have "a reasonable basis to believe there may be a release or
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- 9 -
threat of a release of a hazardous substance or pollutant or
contaminant." § 104(e)(1). SARA's express specific evidence
standard is consistent with how courts have formulated the
specific evidence test in the absence of statutory guidance.
E.g.. West Point-Pepperell. Inc. v. Donovan, 689 F. 2d 950, 958
(11th Cir.1982)(there must be a "showing of specific evidence
sufficient to support a reasonable suspicion of a violation").
In drafting a warrant application, conclusory allegations
regarding the specific evidence standard under subsection 104(e)
will not suffice. Courts generally have refused to approve
warrants where the application contains mere boilerplate asser-
tions of statutory violations. Warrant applications have been
granted, on the other hand, where the application contained
detailed attestations by government officials or third-party
complaints which have some indicia of reliability. Ideally,
EPA warrant applications should contain an affidavit of a person
who has personally observed conditions which indicate that there
may be a release or threat of a release of a hazardous substance.
If they are available, sampling results, although not required,
should also be attached. Warrant applications based on citizen,
employee, or competitor complaints should include details that
establish the complainant's credibility. 9/
C. Court Orders
The provisions in CERCLA authorizing EPA access may be
enforced by court order. To obtain a court order for entry, the
Region should follow the normal referral process. If only access
is required, the referral package can obviously be much abbrev-
iated. If timing is critical, EPA HQ will move expeditiously
and will refer the case orally if necessary. The Regions, how-
ever, should attempt to anticipate the sites at which access may
prove problematic and should allow sufficient lead time for the
referral process and the operation of the courts. The Regions
should also not enter lengthy negotiations with landowners over
access. EPA and DOJ are prepared to litigate aggressively to
establish EPA's right of access.
9_/ If information gathered «in a civil investigation suggests
~~ that a criminal violation may have occurred, EPA personnel
should consult the guidance on parallel proceedings. (Memorandum
from Courtney Price to Assistant Administrators et al., "Policy
and Procedures on Parallel Proceedings at the Environmental
Protection Agency" (1/23/84)). Use of CERCLA1s information-
gathering authority in criminal investigations is addressed in
separate guidance. (Memorandum from Courtney M. Price to Assistant
Administrators et al., "The Use of Administrative Discovery
Devices in the Development of Cases Assigned to the Office of
Criminal Investigations" (2/16/84)).
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Prior to seeking a court order, EPA should request access,
generally J.n writing, and assemble the record related to access.
The showing necessary to obtain a court.order is the same as for
obtaining a warrant: EPA roust show a reasonable basis to believe
that there may be a release or a threat of a release of a hazardous
substance or pollutant or contaminant. An EPA finding on whether
there is reason to believe a release has occurred or Is about to
occur must be reviewed on the arbitrary and capricious standard.
S 104(e)(5) (B)(i). If the matter is not already in court, EPA
must file a complaint seeking injunctive and declaratory relief.
Simultaneous to filing the complaint, EPA may, if necessary,
file a motion, supported by affidavits documenting the release
or threatened release, requesting an immediate order in aid of
access. If the matter is already in litigation, EPA may proceed
by motion to seek an order granting access. 1Q/
In a memorandum supporting EPA's request for relief it
should be made clear that by invoking Judicial process, EPA is
not inviting judicial review of its decision to undertake response.
action or of any administrative determinations with regard to the
response action. Section 113(h) of SARA bars judicial review
of removal or remedial action except in five enumerated circum-
stances. A judicial action to compel access is not one of the
exceptions. -Statements on the floor of the House and the Senate
confirm that EPA enforcement of its access authority does not
provide an opportunity for judicial review of response decisions.
Senator Thurmond, chairman of the Judiciary Committee, remarked
that when EPA requests a court to compel access "there is no
jurisdiction at that time to review any response action . . .
10/ Parenthetically, it should be noted that the broad equitable
power granted to courts in Section 106 can also be relied
on to obtain a court order. An additional source of authority
for courts in this regard is the All Writs Act, 28 U.S.C. S 1651.
The Act authorizes federal courts to "issue all writs necessary
or appropriate in aid of their respective jurisdictions . . . ."
28 U.S.C. S 1651. This authority "extends under appropriate
circumstances, to persons who. though not parties to the original
action or etigaged in wrongdoing are in a position to frustrate
the implementation of a court order . . . ." United States v. New
York Telephone Co.. 434 U.S. 159, 174 (1977).Thus, the All Writs
Act may prove useful as a means of compelling persons not a party
to a consent decree to cooperate with EPA and other settling
parties in execution of the decree. The use of the All Writs
Act, however, may be limited in light of the Supreme Court's
interpretation of the Act in Pennsylvania Bureau of Correction v.
United States Marshal Service, 88 L. Ed. Zd 189 (1985).
rr
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[T]he court may only review whether the Agency's conclusion that
there is a release or threatened release of hazardous substances
is arbitrary or capricious." 132 Cong. Rec. S14929 (October 3,
1986) (Statement of Sen. Thurmond); 132 Cong. Rec. 119582
(October 8, 1986) (Statement of Rep. Glickman); see United States
v. Standard Equipment, Inc., No. C83-252M (W.D. Wash. Nov. 3, 1986)
D. Administrative Orders
If a siteowner denies an EPA request for access, EPA may
issue an adminstrative order directing compliance with the
request. § 104(e)(5)(A). Each administrative order must include
a finding by the Regional Administrator that there exists a
reasonable belief that there may be a release or threat of release
of a hazardous substance and a description of the purpose for the
entry and of the activities to be conducted and their probable
duration. The order should indicate the nature of the prior
request for access. Further, the order should advise the re-
spondent that the administrative record upon which the order was
issued is available for review and that an EPA officer or employee
will be available to confer with respondent prior to the effective
date of the order. The length of the time period during which
such a conferences may be requested should be reasonable under
the circumstances. In deciding what is a reasonable time period,
consideration should be given to the interference access will cause
with onsite operations, the threat to human health and the environ-
ment posed by the site, and the extent of prior contacts with the
respondent. The order should advise the respondent that penalties
of up to $25,000 per day may be assessed by a court against any
party who unreasonably fails to comply with an order. S 104(e)(5).
Following the time period for the conference and any conference,
the issuing official should send a document to the respondent
summarizing any conference, EPA's resolution of any objections,
and stating the effective date of the order.
If, following issuance of an administrative order, the site-
owner continues to refuse access to EPA, the order may be enforced
in federal court. EPA should not use self-help to execute orders.
Courts are required to enforce administrative orders where there
is a reasonable basis to belJLeve that there may be a release or
threat of a release of a hazardous substance. EPA's determination
in this regard must be upheld unless it is arbitrary and capricious.
§ 104(e)(5)(B) (i). EPA will seek penalties from those parties who
unreasonably fail to comply with orders.
All administrative orders for access must be concurred on by
the Office of Enforcement and Compliance Monitoring prior to
issuance.
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- 12 -
DISCLAIMER
The 'policies and procedures established in this document are
intended solely for the guidance of government personnel. They
are not intended, and cannot be relied upon to create any rights,
substantive or procedural, enforceable by any party in litigation
with the United States. The Agency reserves the right to act at
variance with these policies and procedures and to change them at
any time without public notice.
Attachments
*•- .*
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CONSENT FOR ACCESS TO PROPERTY
Name:
Address of Property:
I consent to officers, employees, and authorized
representatives of the United States Environmental Protection
Agency (EPA) entering and having continued access to my
property for the following purposes:
[the taking of such soil, water, and air samples as may
be determined to be necessary;]
[the sampling of any solids or liquids stored or disposed
of on site;]
[the drilling of holes and installation of monitoring wells
for subsurface investigation;]
[other actions related to the investigation of surface or
subsurface contamination;]
[the taking of a response action including . . . .]
I realize that these actions by EPA are undertaken pursuant
to its response and enforcement responsibilities under the
Comprehensive Environmental Response, Compensation and Liability
Act (Superfund), 42 U.S.C. § 9601 et seq.
This written permission is given by me voluntarily with
knowlege of my right to refuse and without threats or promises
of any kind.
Date • Signature
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Interim Guidance on Notice Letters,
Negotiations, and Information Exchange
-------
UNITED STATES EN VIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. Z04«0
9834.10
9 oer
of net of
SOLID WASTI AMD IMIAOCNCV
MEMORANDUM
SUBJECT: Transmittal of Notice Letter Guidance
(00^0, L
aWi EnTor
PROM: Gene bucero, Director
Office of Waste Progr a1**" Enforcement
TO: Addressees
Attached is the "Interim Guidance on Notice Letters,
Negotiations, and Information Exchange." Note that Appendix C
containing model notice letters is not included in this package,
but will be distributed under separate cover in the next couple
of weeks.
Attachment
Addressees:
Directors, Waste Management Divisions, Regions I,IV,v,VII,vm
Director, Emergency and Remedial Response Division, Region II
Director, Hazardous Waste Management Division, Region III
Directors, Air and Waste Management Division, Regions II,VI
Director, Toxics and Waste Management Division, Region IX
Director, Hazardous Waste Division, Region X
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9834,10
INTERIM GUIDANCE ON NOTICE LETTERS, NEGOTIATIONS,
AND INFORMATION EXCHANGE
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983410
Table of Contents
I. Introduction
II. Purpose and Scope of Guidance
III. Statutory Authority
A. Settlements
B. Special Notice Procedures and Information Release
IV. Information Exchange
A. Information Requests
B. Information Release
V- Notice Letters and Negotiation Moratorium for RI/FS and
RO/RA
• A. Purpose of Notice Letters
B. General Notice Letter
1. Whether to Issue General Notice
2. Timing of General Notice
3. Recipients of General Notice
4. Contents of General Notice
C. RI/FS and RD/RA Special Notice Letters
1. Whether to Issue RI/FS and RO/RA Special Notice
2. Notifying PRPs When Not Appropriate to Issue
RI/FS and RD/RA Special Notice
3. OOJ Role in RI/FS and RO/RA Negotiations
4. Timing of RI/FS Special Notice
5. Timing of RO/RA Special Notice
6. Recipients of RI/FS and RO/RA Special Notice
7. Contents of RI/FS and RO/RA Special Notice
0. Conclusion of Negotiation Moratorium and Deadline
Management for RI/FS and RO/RA
VI. Notice Letters and Negotiation Moratorium for Removal
Actions
A. Notice Letters
1. Whether to Issue Notice for Removals
2. When to Use Special Notice Procedures for
Removals
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9834.10
3. Notifying PRPs When Not Appropriate To Utilizt
Special Notice Procedure* for Removals
4. DOJ Role in Removal Negotiations
5. Timing °f Notice for Removals
6. Recipients of Notice for Removals
7. Contents of Notice for Removals
B. Conclusion of Negotiation Moratorium and Deadline
Management for Removals
C. Administrative Orders and Negotiation Moratorium
for Removals
VIZ. Disclaimer
vill. For Further Information
Appendices
Appendix A: Timing of RD/RA Special Notice Letter
Appendix B: Settlement Process Timelines
Appendix C: Model Notice Letters (To be provided under
separate cover)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9 8 3 4.1 0
WASHINGTON, O.C. 104*0
nrr i Q lew?
UWI I a I9OI
tOUOWMTI AND IMfMQINCV MIMONM
MEMORANDUM
SUBJECT: Interim Guidance on Notice Letter*, Negotiations, and
Information Exchange
6^-4, /&&&-
FROM: J.tfinstorf Porter
Assistant Administrator
TO: Regional Administrators
I. INTRODUCTION
The Superfund Amendments and Reauthorization Act of 1986
(SARA), which amends the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), maintains the
importance of a strong Superfund enforcement program.1 In
particular, SARA emphasizes the importance of entering into
negotiations and reaching settlements with potentially
responsible parties (PRPs) to allow PRPs to conduct or finance
response actions. SARA generally codified the Agency's Interim
CERCLA Settlement Policy but also established some new
authorities and procedures that were designed to facilitate
settlements.
A fundamental goal of the CERCLA enforcement program is to
facilitate voluntary settlements. EPA believes that such
settlements are most likely to occur when EPA interacts
frequently with PRPs. Frequent interaction is important because
it provides the opportunity to share information about a site and
may reduce delays in conducting response actions caused by the
lack of cosununication. Important mechanisms for promoting
interaction and facilitating communication between EPA and PRPs
include issuing notice letters, entering into negotiations, and
exchanging information with PRPs.
1 CERCLA of 1980 as amended by SARA of 1986 is referred to
in this guidance as CERCLA.
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9834.10,
This guidtnct replaces the October 12, 1984 guidance on
"Procedure* for Issuing Notice Letters" and the October 9, 1985
guidance on "Timely Initiation of Responsible Party Searches,
Issuance of Notice Letters, and Release of Information." *
Although certain procedures and the timing of various activities
have been modified, this guidance retains many fundamental
aspects of the October 12, 1984 and October 9, 1985 guidances.
In particular, this guidance re-emphasizes the importance of
timely issuance of notice letters and the exchange of information
between EPA and PRPs. In addition, this guidance incorporates a
moratorium and "formal" period of negotiation (referred to as a
negotiation moratorium) into the settlement process. IPX's
commitment to carrying out these activities is crucial for
supporting our fundamental goal of facilitating negotiated
settlements.
II. PURPOSE AND SCOPE Of GUIDANCE
The purpose of this guidance is to assist the Regions in
establishing procedures for the issuance of notice letters to
PRPs. for the conduct of negotiations between EPA and PRPs, and
for the exchange of information between EPA and PRPs.
This guidance addresses the use of both "general" and
"special" notice letters for removal and remedial actions.
Special notice letters differ from general notice letters because
special notices trigger the negotiation moratorium. The
negotiation moratorium is the period of time where a moratorium
is imposed on certain EPA actions and a period of "formal"
negotiations is established between EPA and PRPs.
Use of both general and special notice letters are
discretionary. However, the Regions are expected to issue
general and special notices for the vast majority of remedial
actions. Such notice letters will be issued for remedial
investigations/feasibility studies (RI/FSs) and remedial
designs/remedial actions (RD/RAs). Although it is generally
appropriate to issue a "removal notice" for all removal actions,
the Region* are not expected to invoke the 1122(e) special notice
procedures for most removals.
This guidance also addresses the timing, duration, and
conclusion of the negotiation moratorium. Finally, this guidance
discusses the process of information exchange between EPA and
PRPs, including requests for and releases of site-specific
information.
2 These guidances were issued under OSWER Directive Numbers
9834.1 and 9834.2, respectively.
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9834.10
ill. STATUTORY AVTHQRITY
A. SETTLEMENTS
Section* 104(a), 122(a), and 122(e)(6) authorize settlements
and •stablish certain conditions for allowing PRPs to conduct or
finance response actions. Section 104(a) authorises IPX to enter
into an agreement with PRPs to allow PRPs to conduct or finance
response actions in accordance with 1122 if EPA deteraines that
the PRPs will conduct the response action properly and promptly.
Under 1104(a), PRPs cannot conduct the RI/PS unless EPA
deteraines that the PRP is qualified to perfora the RX/FS, IPA
contracts with or arranges for a qualified person other than the
PRP to assist EPA in overseeing and reviewing the RI/P8. and the
PRP agrees to reimburse the Fund for the costs EPA incurs in
overseeing and reviewing the PRP's RX/FS.
Section 122(a) similarly authorizes EPA to enter into
agreements with PRPs to perform response actions if EPA
determines the action will be conducted properly. Section 122(a)
also provides for EPA, when practicable and in the public
interest, to facilitate settlements with PRPs to expedite
effective remedial actions and to minimize litigation.
Section 122(e)(6) provides that no. PRP aay undertake any
remedial action at a facility where EPA or a PRP pursuant to an
administrative order or consent decree under CERCLA has initiated
an RI/FS unless the remedial: action has been authorized by EPA.
B. SPECIAL NOTICE PROCEDURES AND INFORMATION RELEASE
Sections 122(e) and 122(a) contain provisions relating to
the special notice procedures and the release of information to
PRPs. Section 122(e) provides for EPA to utilize the special
notice procedures if EPA determines that a period of negotiation
would facilitate an agreement with PRPs and would expedite
remedial actions. Section 122(e) also provides for EPA to
release certain information to PRFs. Such information Includes,
to the extent available, the naaes and addresses of other PRPs,
the volume and nature of substances contributed by each PR?, and
a ranking by volume of the substances at the facility.* Xa
1 Congress recognized that there aay be limitations to the
availability of information at early phases of the response
action. Xn particular. Congress noted that the RX/FS special
notice need not be accoapanied by information on volume and
nature of waste and ranking if this information is not available
at the start of the RX/FS. A separate notice and information
release should be provided for private parties who actually
conduct the remedial action and information on volume, nature and
ranking of wastes should be made available routineljr at this
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9834.10
addition, this section provides for EPA to make such information
available in advanct of tha special notiea upon request by a PRP
in accordance with procedures provided by EPA.
Issuance of a special notice triggers a moratorium on the
commencement of certain actions by IPA under 1104 or 1106. The
purpose of the moratorium is to provide for a period of
negotiation between EPA and PRPs. The moratorium prohibits EPA
from commencing any response action under 1104(a), and an RX/PS
under 1104(b), or an action under 1106 for 60 days after receipt
of the notice. If EPA determines that a "good faith offer" ha*
been submitted by the PRP within 60 days after receipt of the
^special notice. EPA shall not commence an action under 1104(a) or
take any action against any person under 1106 for an additional
60 days or commence an RI/FS under 1104(b) for an additional 30
days.
Under S122(e)(2)(a), EPA may commence any additional other
studies or investigations authorized under 1104(b), including the
remedial design, during the negotiation period. Under
5122(t)(2)(C), if an additional PRP is identified during the
negotiation period or after an agreement has been entered into,
EPA may bring the additional party into the negotiation or may
enter into, a separate agreement with the PRP. Under I122(e)(5),
EPA is not prohibited from undertaking a response or enforcement
action during the negotiation period when there is a significant
threat to public health or the environment.
Section 122(a) provides that if EPA decides not to use the
special notice procedures established under 1122(e), EPA is
required to notify PRPs in writing of this decision along with an
explanation why it is inappropriate to use such procedures.
The decision by EPA to use or not to use the special notice
procedures is not subject to judicial review.
IV. INFORMATION EXCHANGE
The exchange of information between EPA and PRPs is crucial
for facilitating settlements. Information exchange should be an
ongoing process of communication. EPA uses information obtained
from PRPs to determine potential liability, to determine the need
for response, and to support the selection of the remedy. PRPs
use information obtained from EPA to organize among themselves
and to develop a "good faith offer" to conduct or finance
response actions.
time. See the Conference Report on the Superfund Amendments and
Reauthorization Act of 1986, 99 Cong., 2d Sess. Report 99-962
pp. 253 (1936).
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9834.10
A. INFORMATION REQUESTS
EPA may request information from PRpg about various
activities and condition! under 1104(a) of CERCLA and under
13007(•) of tha Raaourca Conservation and Racovary Act (RCRA).
In addition, EPA may iaaua administrative subpoenas undar
S122(a)(3)(b) of CERCLA. Information commonly raquaatad includaa
dataila concerning waata oparationa and waste management
practices, tha typa and amount of aubatancaa contributed by each
PRP, aa wall aa tha name of other PRPa that contributed
aubatancea to the aite.
Information requeata ahould b* iaaued aa early aa
practicable and may be iaaued aa a separate letter during the PRP
aaarch procaaa, aa part of the general notice letter, or through
an administrative aubpoena. A detailed discussion about the use
of information requeat lettera and administrative subpoenas
is contained in the forthcoming "Guidance on Use and Enforcement
of Information Requests and Administrative Subpoenas under CIRCLA
Ill04(e) and 122(e).H
The Regions have the discretion to decide whether to issue
an information request as a separate letter during the PRP search
or as a component of a general notice letter. Issuing a separata
information request letter in advance of the general notice may
be advantageous in situations where information from PRPs is
needed to determine whether it is appropriate to issue a notice
letter to such partiea. :
Information requests should be developed in accordance with
the forthcoming guidance on information requests and
administrative subpoenas aa mentioned above. An information
request should also indicate that EPA plans to vigorously enforce
information requeats with the new enforcement tools authorized
under SARA which include issuing orders under S104(e)(5).
Finally, the information request should indicate that it is the
PRPs responsibility to inform EPA whether information they
provide to IPX is confidential and subject to protection under
1104(e) of CBtCLA.
B. INFORMATION RELEASE
It is important to gather and release site-specific
information to PRPs as soon aa reasonably practicable. Gathering
and releasing auch information early in the process will not only
expedite response and enforcement activities but will help PRPs
organize and negotiate among themselves as well.
As indicated, S122(e)(l) provides for the release of certain
information to PRPa to the extent such information is available.
Such information includes the names and addreaaes of other PRPs,
the volume and nature of aubatancea contributed by each PRP. and
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9834.10
• ranking by volume of the substance* at the facility. This
information is to be provided to PRPs in advance of the special
notice in accordance with procedures developed by IPX.
Congress recognised the limitations to IPA's ability to stake
certain information available to PRPs, especially early in the
response process. Therefore, this information can be released
only to the extent such information is available. If the Regions
have information on volume, the Regions should develop volumetric
rankings and should make such information available to PRPs as
soon as practicable. However, due to their preliminary and
•uasrary nature. IPA will not expend resources to explain or
defend any list or ranking. Lists or rankings released to PRPs
and others should always contain appropriate disclaimers.
The Regions are encouraged to release information to PRPs as
soon as reasonably possible. The Regions may respond directly to
individual PRP requests for information, may use the notice
letters as vehicles to release such information to PRPs, or may
establish alternative mechanisms in some situations as discussed
below. The Regions are strongly encouraged to use the notice
letters to release site-specific information. Zn particular, use
of the general notice may provide a convenient opportunity to
release information in advance of the special notice pursuant to
the statutory provision that SPA release such information in
advance of the special notice in accordance with procedures
developed by EPA.
Although it is generally preferable to release information
tc individual PRPs through notice letters, alternative mechanisms
:=»>• be used in unusual circumstances. For example, in instances
where there are many PRPs and/or where there is a substantial
aacunt si information to be released, the Regions may consider
aaJcing the information available through a central mechanism
e.;. through a PRP steering committee if one has been formed and
if the committee has agreed to be a clearinghouse for
distributing information to other PRPs). An alternative would be
to indicate in the notice letter that the Region has site-
specific information that will be made available to the PRPs in a
aanner specified in the letter-
V. iiOTTCl LTTTgRS AMP NEGOTIATION MORATORIUM FOR RI/PS AKD RO/RA
This guidance creates a systematic process for issuing three
separate notice letters for remedial actions. The three notice
letters are 1) the general notice, 2) the RI/PS special notice,
aid 31 the RD/RA. special notice. Bven though the RI/PS and RD/RA
special notice letters are separate letters, they are discussed
•-z. the saxe section below since the content of these letters is
£4si:all? the sase. Zn instances where the content of the RI/PS
and tr RA special notices differ, separate sections are
presented.
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9834.10
Alto, this guidance is written with the assumption that each
notice letter will be issued in sequence. Consequently, the
guidance has been structured so that certain information provided
or requested in one letter is not repeated in a subsequent
letter. The content of actual letters may, however, need to be
modified in situations where this process is not followed.
For example, there may be a situation where site activities
are already underway and where the Region is ready to issue the
RZ/PS special notice but has not issued a general notice. In
this instance, it would not be necessary to wait to send the
special notice until after a general notice if issued. However,
it may be appropriate to include certain aspects of the general
notice into the special notice.
A. PURPOSE OP NOTIC1 LETTERS
The purpose of the general notice is to inform PRPs of their
potential liability for future response costs, to begin or
continue the process of information exchange, and to initiate the
process of "informal" negotiations. In addition, the general
notice informs PRPs about the possible use of the 1122(e) special
notice procedures and the subsequent moratorium and "formal"
negotiation period. ' <->' *
The purpose of the special notice is similar to the general
notice, except that the special notice is also used to invoke the
statutory moratorium on certain EPA actions and to initiate the
process of "formal" negotiations. Although the general notice
does not trigger a moratorium on any EPA action and does not
invoke a "formal" period of negotiation, the general notice is
expected to initiate a dialogue between EPA and PRPs. Issuance
of a general notice should be viewed as a mechanism for
initiating negotiations whereas issuance of a special notice
should be viewed as a mechanism for concluding negotiations.
The term "informal" negotiations does not mean that such
negotiations are not serious efforts to reach a settlement.
Rather "informal" negotiations refers to any negotiations that
are not conducted as part of the negotiation moratorium triggered
by issuance of a special notice under 1122(a). The terms
"informal" and "formal" negotiations are used to draw a
distinction between negotiations which are and are not covered by
the §122(e) moratorium.
B. GENERAL NOTICE LETTER
Agency notification procedures should provide PRPs with
sufficient time to organize and develop a reasonable offer to
conduct or finance the response action. Toward this end. the
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9834.10
8
Regions should contact PRPs prior to issuing • 1122 (•) special
notic« by issuing • general notics Isttsr.
1. Whether to Issus General Notiea
X general notice Isttsr should bs issusd at ths vast
majority of sitss that ars proposed for or listsd on ths National
Priorities List (NFL) where negotiation* for ths RI/PS and RD/RA
have not yet been initiated. Circumstances where it may not be
appropriate to issus the general notice include sites
where a notice pursuant to previous guidance was issued prior to
the reauthorisation of CIRCLA or where the Region is ready to
issue a special notice at the sits. These exceptions are
important for minimising any possible disruption to ongoing
activities.
2. Timing of General Notice
The general notice letter should be sent to PRPs as sarly
in the process as possible, preferably once the site has been
proposed for inclusion on the NPL. Early receipt of the general
notice will ensure that PRPs have adequate knowledge of their
potential liability as well as a rsalistic opportunity to
participate in settlement negotiations. When a separate
inforsation request letter has been sent to PRPs prior to the
general notice, the information request should be sent as sarly
as possible to avoid any delay in issuing the general notice.
3. Recipients of General Notice
General notice letters should be sent to all parties where
mere is sufficient evidence to make a preliminary determination
cf potential liability under S107 of CBRCLA. If there is doubt
about whether available information supports issuance of the
general notice, separate information request letters may be sent
t= such parties prior to issuing ths notice. If a Federal agency
nas been identified as a generator at a facility not
ovaedVoperated by the Federal agency, such agency should be
re-cinely notified like other PRPs.
If additional PUP* are identified after the general notice
rst before the RI/FS special notice is issued, the Regions should
provide a general notice to those additional PRPs. If additional
?LFs ars identified after general and special notices are issued,
tie additional PRPs need not receive a general notice before
receiving the appropriate special notice. However, relevant
aspects of the general notice should be incorporated into the
special sctiee.
Copies of t&e general notice should be provided to the
yicr-al administrative record coordinator, the appropriate State
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9834.10
representative, the State or Federal trustee 12 • trustee for
natural resources ha* been designated, and to EPA headquarters at
tht same tin* notices are sent to FRPi. The copies of notice* to
headquarters should be sent to the Information Management Section
within the Program Management and Support Office of the Office of
Wast* Programs Enforcement (OWPE).
Providing copies to the administrative record coordinator is
important for ensuring that the notice is placed in the
administrative record.4 Providing copies to the State
representative and the State or Federal trustee is important for
ensuring that States are appropriately informed about possible
future negotiations.* Providing copies to OWPE is essential for
permitting entry into the Superfund Enforcement Tracking System
(SETS). Entry into sets will facilitate our efforts to track
site activities and to respond to Congressional and other
inquiries. Direct Regional input of data into SETS on notice
letter recipients is planned for PY 19SS.
Zt is not necessary to provide copies of each general notice
to the administrative record coordinator, State representative.
State or.Federal trustee, or headquarters in instances where
identical notices are provided to multiple PRPs. Where there are
multiple PRPs at a site, a copy of one general notice with a list
of other parties who have received the letter would suffice.
4. Contents of General Notice
The general notice letter should contain the following
components: a) a notification of potential liability for
response costs, b) a discussion about future notices and the
possible future use of special notice procedures, c) a general
discussion about site response activities, d) a request for
information about the site (if appropriate), e) the release of
certain site-specific information (where available), f) a
discussion about the merits of forming a PRP steering committee,
g) a notice regarding the development of an administrative
record, and h) a deadline for response to the letter and
information on the EPA representative to contact.
4 A discussion about placing notice letters in the
administrative record is covered in the forthcoming "Guidance ac
the Administrative Record for Selecting a Response Action wader
CERCLA" and in the preamble to the forthcoming revision* to the
National Contingency Plan.
9 State participation in negotiations is covered 12 tae
forthcoming "Interim Guidance on EPA-State Relations in CSRCLA
Enforcement.M
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9834.10
10
•. Potently ^ability: The letter should inform parties
that they ere potentially liable for response costs under 1107 of
CERCLA, including the costs of conducting the RZ/P3 and RO/RA.
The letter should define the scope of potential liability and
should briefly explain why the parties have been identified as
PRPs.
b. Future notice under 1122 (a) or i!22(e); The latter
should indicate that IPX will notify the party at an appropriate
point in the future. The letter should specify that this notice
will either be a 1122 (a) notice or a 1122 (a) special notice and
should explain what these notices 'are.
The letter should indicate that the 1122 (a) notice is a
notice which informs parties that BPA will not use the 1122 (e)
special notice procedures. The letter should indicate that the
notice will provide an explanation for the decision not to use
the special notice procedures.
The letter should also indicate that a 1122 (e) special
notice will invoke the negotiation moratorium. The letter should
make clear that issuance of a 1122 (e) special notice latter is
discretionary and may be used if BPA determines that use of such
procedures would facilitate an agreement and expedite remedial
action. The letter should also explain the purpose of the
special notice and the subsequent negotiation moratorium.
Informing PRPs about the special notiea procedures and the
negotiation moratorium will alert PRPs to possible future
negotiations and increase their awareness of their opportunities
for participation in such negotiations.
c. Site response activities; The letter should generally
discuss the activities BPA plans to undertake at the site. Where
appropriate, such activities should include scheduled start or
completion dates for the RI/PS or RO/RA. Instances where it may
not be appropriate to provide start or completion dates include
situations where the general notice is issued very early in the
process and where specific dates have not yet been set, or where
it is expected that target dates are likely to change
significantly.
d. laforffation request; The letter should request
information on substances sent to or present at the site and the
names of other PRPs pursuant to 1104 (e) of CSftCLA and/or 13007 (a)
of RCXA if a separate information request has not already been
issued. The content of the information request should be
consistent with the forthcoming "Guidance on Use and Enforcement
cf Information Requests and Administrative Subpoenas Under CBRCLA
Si:4(e) and Sl22(e) . "
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9834.10
ii
•. Information release: At a minimum, the letter should
releaaa the names and addresses of other PRPs who hava racaivad
tha general notiea lattar. In addition, to tha axtant tueh
information ia available, tha lattar ahould includa tha volume
and nature of aubatancaa contributad by aaeh PRP and a ran*ing by
volume of tha subatancaa at tha facility if such information has
not baen previously ralaaaad.
f. PRP ataarino committee; Tha lattar should request that
tha PRPs identify a member of their organization who will
represent their interests. Zn addition, tha lattar should
recommend that PRPs form a staaring committee to represent the
group's interests in possible future negotiations. Tha lattar
should indicate that establishing a staaring committee is
important for facilitating negotiations with EPA.
g- Administrative record; Tha lattar should ba usad as a
vehicle for informing PRPs of tha availability of an-admin-
istrative record that will contain documents which form tha basis
for tha Agency's daciaion on tha selection of remedy. The letter
should indicate that the record will be open to the public for
inspection and comment. The letter should also provide
information regarding tha opening of the record and where it will
ba located.
h. PRP response and EPA contact: The letter should
encourage PRPs to notify EPA by a specified date of their
interest to participate in future negotiations. Tha letter
should indicate that PRPs may respond as a group through a
steering committee if one has been formed. The letter ahould
also provide a cut off data for voluntary compliance with
information requests (if a request for information is contained
in the general notice). An appropriate time frame for the PRP
response to an information request is generally thirty days from
receipt of the letter. Finally, the letter should provide the
name, phone number, and address of the EPA representative to
contact.
C. RI/FS and RD/RA SPECIAL NOTICE LETTERS
Prior to EPA'a conduct of tha RZ/PS and RD/RA, the Regions
should either issue the special notice to PRPs or provide PRPs
with an explanation why it was not appropriate to use the special
notice procedures. Zssuance of the special notice triggers a
moratorium on EPA'a conduct of the RZ/PS and remedial action.
While the statute does not impose a moratorium on BPA's conduct
of the remedial design, the Agency will not generally conduct
such activities during the moratorium. The purpose of the
moratorium is to provide for a formal period of negotiation
between EPA and PRPs where the PRPs will be encouraged to conduce
or finance response activities.
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The negotiation moratorium may last a total of 90 days for
the Ri/FS and 120 days for the RD/RA if EPA receives a "good
faith offer" from PRPs within the first 60 days of the
moratorium. The negotiation moratorium would conclude after 60
days if the PRPs do not provide EPA with a "good faith offer."
The initial 60 day moratorium begins on the date the PRPs
receive the special notice via certified nail. In instances
where there is more than one PRP and PRPs are likely to receive
the special notice on different days, the date the moratorium
begins should be seven days from the date the letters are mailed
to the PRPs. In either case, the special notice must make clear
when the negotiation moratorium begins and ends.
1. Whether to Issue RI/FS and RD/RA Special Notice
EPA has the discretion to use the special notice procedures
when EPA determines that a period of negotiation would facilitate
an agreement with PRPs and would expedite remedial actions.
The Agency believes entering into such negotiations would
generally facilitate settlements and plans to utilize the RZ/FS
and RD/RA special notice procedures in the vast majority of
cases.
There are, however, some circumstances where it would
generally not be appropriate to use such procedures. Such
circumstances include 1) where past dealings with the PRPs
strongly indicate they are unlikely to negotiate a settlement,
2) where EPA believes the PRPs have not been negotiating in good
faith, 3) where no PRPs have been identified at the conclusion of
the PRP search, 4) where PRPs lack the resources to conduct
response activities, 5) where there are ongoing negotiations, or
6) where notice letters were already sent prior to the
reauthorization of CERCLA and onging negotiations would not
benefit by issuance of a special notice.
Special notices may be issued for operable:units of remedial
actions. The test for determining whether to issue a special
notice for an operable unit is generally the same as for full-
scale remedial actions. The general expectation is that separate
special notices will be issued for each separate operable unit as
long as issuing the notice would facilitate an agreement and
would expedite the remedial action. However, special notices may
also be issued for only major operable units or mey cover a
series of operable units if appropriate under the circumstances
at the site.
For example, if several operable units will be conducted at
a site as relatively separate and distinct response actions, it
may be appropriate to consider using separate special notices
which would trigger separate negotiation moratoriums. If a series
of operable units will make up a remedial action it may be
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appropriate to issue the special notice to cover only the major
operable unit(s) or to cover several operable units.
2. Notifying PRPs When Not Appropriate to Issue
RI/FS and RD/RA Special Notice
In instances where EPA decides it is inappropriate to issue
the special notice, 1122(a) provides for SPA to notify PRPs in
writing of that decision. The notice oust indicate the reasons
why the Region determined that issuing the special notice and
entering into "formal" negotiations was not appropriate.
The notice should be provided to all ?RPs that have been
identified to date as well as to the Regional administrative
record coordinator for placement in the record. Such notices
should be provided as soon as practicable. In instances where
the RI/FS or RD/RA have not yet been initiated, the notice should
be sent prior to the initiation of such activities if possible.
In addition, the 5122(a) notice should be used as a vehicle
for informing PRPs that the Agency will establish or has
established an administrative record containing technical
documents supporting the Agency's decision on the selection of
remedy. The notice should indicate that the record is open for
public inspection and comment and should specify where the record
will be or has been located.
3. DOJ Role in RI/FS and RD/RA Negotiations
The Regions should notify the Chief of the Environmental
Enforcement Section in the Department of Justice (DOJ) prior to
issuing special notice letters where settlement by a consent
decree is contemplated. A copy of this memorandum should also be
provided to the Office of Waste Programs Enforcement and the
Office of Enforcement and Compliance Monitoring in Headquarters.
The memorandum to DOJ should indicate when .the Region
intends to issue the special notice. Because most RZ/FS
negotiations involve consent orders, notice to DOJ on the RI/FS
is not ordinarily necessary. However, where a site is in
litigation or where settlement by consent decree is expected. DOJ
should be notified at least 30 days prior to issuing the RI/FS
special notice. In addition, where the resolution of the matter
by an administrative order is expected to involve a compromise of
past or future response costs and the total response costs
will exceed $500,000, DOJ is to be notified. DOJ's role will be
to review the compromise of the claim pursuant to section
122(h)(l) but not to review the administrative order for the
RI/FS. For RD/RA negotiations, the notice should be sent to DOJ
at least 60 days prior to issuing the RD/RA special notice. The
memorandum should also identify the EPA Regional representative
DOJ should contact.
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In addition, the Regions should consult with the Chief of
the Environmental Enforcement Section prior to sending a copy of
any draft consent decree or any outline of a draft consent decree
to PRPS. The Regions are encouraged to include a draft consent
decree with the RD/RA special notice or soon thereafter as
discussed below.
4. Timing of RI/FS Special Notice
It is important that PRPs receive the RZ/PS special notice
letter as soon as practicable. Of greater importance, the letter
must be sent sufficiently in advance of obligations for the RZ/PS
so that negotiations do not delay the initiation of the RZ/PS by
the Fund in the event the negotiations do not result in an
agreement providing for the PRPs to conduct or finance the RZ/PS.
Timely receipt of the special notice will have a significant
effect on the PRPs ability for meaningful participation in formal
negotiations.
The RZ/PS special notice letter should be sent to PRPs no
later than 90 days prior to the scheduled date for initiating the
RZ/FS. .The scheduled date for initiating the RZ/PS refers to the
date funds will be obligated to commence response activities.
A minimum of 90 days is important for ensuring that the
negotiation moratorium does not delay initiation of the RZ/FS in
the event negotiations do not result in a settlement. The time
for service by mail should be taken into account.
5. Timing of RD/RA Special Notice
The timing of the RO/RA special notice letter will have a
significant impact on both the success of negotiations and on
EPA's ability to move forward with implementing a remedy without
delay. As indicated earlier, "formal" negotiations pursuant to
special notice are not the sole vehicle for reaching settlements.
"Informal" negotiations must occur throughout the process and in
advance of the special notice. To assure that "formal"
negotiations are productive, EPA must initiate PRP search and
information exchange activities as well as "informal"
negotiations as early as possible.
The primary purpose of the special notice procedures is to
facilitate settlements through negotiation. A primary concern in
determining when to issue an RO/RA special notice is whether
there is a likelihood that meaningful negotiations can be
conducted at a given stage in the process. Another concern is
that, to the extent practicable, the negotiations must be
scheduled to minimize any delay in the remedial design and
remedial action. A final concern is that negotiations be carried
out in a way that does not undermine or have the appearance of
undermining the public participation process.
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Thi» guidance establishes an Approach which identifies when
the Region* must generally issue the RD/RA special notice letter.
The Regions may. however, adopt an alternative approach under
appropriate circumstances. Appendix A contains illustrations of
the three approaches discussed below. •
a. General Approach; Issue special notice when release
draft PS and proposed plan for pub^jf ??">"'tTl<'i The Regions
generally must issue the RO/RA special notice when the draft
feasibility study (FS) and proposed plan » are released to the
public for comment. As shown in Appendix A, issuance of the
special notice with the release of the draft F8 and proposed plan
triggers the initial 60 day negotiation moratorium. The initial
60 day negotiation moratorium begins at the start of the 30 day
public comment period and, in conjunction with the first 30 days
of the 60 day extended negotiation moratorium, is concurrent with
the Record of Decision (ROD) review and approval process. The
remaining 30 days of the extended negotiation moratorium is
concurrent with the initial phases of the remedial design. BPA's
ability to sign the ROD is not affected by the duration of the
negotiation moratorium. The ROD nay be signed at any point after
the close of the public comment period and the preparation of the
responsiveness summary for the public.
In most cases, commencing formal negotiations at the same
time that the draft FS and proposed plan are released will
properly balance the considerations stated earlier relating to
EPA's ability to conduct meaningful negotiations, to minimize
delay in implementing the RD/RA, end to maintain the integrity of
the public participation process. Under this approach, formal
opportunity for PRP involvement would begin at an early yet
concrete stage in the process. Early participation may be
especially advantageous in situations where PRPs have not been
previously or substantially involved in RI/PS activities. In
addition, PRPs and the public would have knowledge of the
possible range of alternatives through the draft FS and proposed
• The time periods depicted in the following discussion and
illustrated in Appendix A reflect "best case" scenarios where
various response and enforcement activities are expected to be
carried out without delay. Por example, the public comment
period lasts 30 days and does not take into account a possible
extension.
7 The proposed plan refers to the public participation
document developed pursuant to 1117(a). This is a non-legal,
non-technical document that describes the alternatives in the FS,
and specifies and provides a brief analysis of BPA's preferred
alternative. A more detailed discussion of the proposed plan
will be contained in the forthcoming "Guidance on Documenting
Decisions at Superfund Sites" (referred to as the ROD Guidance).
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16
plan prior to "formal" negotiations. This information is
important for assisting th« PRPs in developing a meaningful "good
faith offer" for conducting or financing the RO/RA.
b. Alternative Approach: Issue special notice prior to
release of draft PS and proposed plan for public comment.
Although the Regions generally will issue the RD/RA special
notice when the draft PS and proposed plan are released to the
public for comment, the Regions are encouraged to issue the
special notice earlier in the process if this action would
facilitate the prospects for reaching a settlement. If a Region
chooses to follow this approach, the Region should include with
the special notice a summary or fact sheet of the alternatives
SPA has screened and the alternatives the Agency is currently
considering. '
As shown in Appendix A, the RO/RA special notice may be
issued prior to EPA's release of the draft PS and proposed plan.
Issuance of the special notice triggers the initial 60 day
negotiation moratorium. The initial negotiation moratorium is
concurrent with the review and release of the draft PS and
proposed plan. The initial negotiation moratorium is completed
prior to the initiation of the public comment period. The public
comment period iV concurrent with the first 30 days of the
extended negotiation"Moratorium. The remaining 30 days of the
extended negotiation moratorium is concurrent with the ROD review
and approval process. The ROD could be signed and the
negotiation moratorium could**be concluded at about the same time.
EPA's ability to sign the ROD is not affected by the negotiation
moratorium. The ROD may be signed at any point after the close
of the public comment period and the preparation of the
responsiveness summary for the public.
In many cases, providing special notice at this early stage
may be inappropriate because too much uncertainty would exist .
about the remedy to allow for meaningful negotiations. However,
under other circumstances it may be appropriate to issue the
• Release of a summary or fact sheet on the alternatives
that have been screened and the alternatives that are being
considered is important for facilitating negotiations at this
early stage ia the remedial process. This information will be
useful to PRPs in developing their "good faith offer" for
conducting or financing a response action and will be important
for informing PRPs about the alternatives the Agency is
considering at tae site. The Regions should include the summary
of alternatives or fact sheet in the administrative record for
eech site.
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17
special notice early in the process, especially in situations
where there is • relatively small group of PRPs. it is clear what
the remedy i§ likely to be, and the remedy is not likely to be
controversial.
Where circumstances permit issuance of the special notice at
this early stage, an advantage to this approach is that the ROD
review and approval process and the negotiation moratorium could
be concluded at about the same time. This would help assure that
cleanup occurs as soon as possible whether through a negotiated
settlement or fund-financed action. Zn addition, there would be
an early opportunity to inform PRPe of various remedial
alternatives under consideration by EPA prior to BPA's
identification of the proposed plan. Early participation may be
advantageous where PRPs have not been previously or substantially
involved in RI/FS activities.
c. Alternative Approach; Issue special notice when the ROD
is signed. Although the Regions generally will issue the RD/RA
special notice letter when the draft PS and proposed plan are
released to the public for comment, there may be some limited
circumstances where it is appropriate to issue the notice later
in the process (i.e. when the ROD is signed). This approach may
be followed, however, only where the Region can provide adequate
justification and where the Region has obtained prior approval
from Headquarters. Approval must be obtained in writing from the
Directors of the Office of Waste Programs Enforcement and the
Office of Emergency and Remedial Response.
As shown in Appendix A, under this approach the RD/RA
special notice would not be issued until the ROD is signed.
Thus, the entire 60 to 120 day negotiation moratorium would not
occur until the remedial design phase.
An advantage to this approach is that since the ROD would be
signed and the remedy would be selected at the start of the RD/RA
negotiation moratorium, the PRPs would know precisely which
remedy the "good faith offer" and the negotiations should focus
on. In addition, since the negotiations would begin after the
close of th« public comment period, the PRPs and EPA would have
the benefit of knowing the public comments.
The major disadvantage to this approach is that the
negotiation moratorium would not occur until the end of the
process (i.e. not until the beginning of the reaedial design
phase). Issuing the special notice at this point would create
the greatest potential for a subsequent delay in implementing
the remedy.
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18
Instances where it may. however, be appropriate to issue the
•P«cial notice later in the process (i.e. not until the ROD is
signed) may be where more time is needed to conduct informal
negotiations, where the site is particularly complex, or wfcere
there is an extraordinarily large number of PRPs (e.g. hundreds
of PRPs). Another example may be where there is little
expectation that a Fund-financed remedial action will occur in
the near future at an enforcement-lead site. It Fund-financed
activities are not expected to occur and a later moratorium would
facilitate cleanup, it may be less important to initiate and
conclude negotiations early in the process.
6. Recipients of RI/FS and RD/RA Special Notice
The RI/FS and RO/RA special notice letters should be sent to
all parties where there is sufficient evidence to make a
preliminary determination of potential liability under 1107 of
CERCLA. If there is doubt about whether available information
supports issuance of the RI/FS and RD/RA special notices,
separate information request letters may be sent to such parties
prior to issuing such notice. If a Federal agency has been
identified as a generator at a facility not owned/operated by the
Federal .agency, such agency should be routinely notified like
other PRPs. "~" , ^,
Section 122(e)(2)(C) authorizes EPA to bring additional
parties into negotiations or to enter into a separate agreement
with parties when additional*PRPs are identified during the
negotiation period or after an agreement has been entered into.
The Regions may provide a special notice to additional parties if
they are identified after issuance of the RI/FS special notice
letter. However, issuance of a special notice to additional
parties would not change the duration of the negotiation
moratorium. The special notice may invite PRPs to participate in
remaining negotiations, but would not extend the pre-existing
negotiation moratorium.
Copies of the special notices should be provided to the
Regional administrative record coordinator, the appropriate State
representative, the State or Federal trustee if a trustee for
natural resources has been designated, and to EPA headquarters at
the same time notices are sent to PRPs. The copies of notices to
headquarters should be sent to the Information Management Section
within the Program Management and Support Office of the Office of
Haste Programs Enforcement (OWPE).
Providing copies to the administrative record coordinator is
important for ensuring that the notice to be placed in the
record. Providing copies to the State representative and the
State or Federal trustee is important for ensuring that States
are appropriately informed about possible future negotiations.
Providing copies to OWPE is essential for permitting entry into
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the Superfund Enforcement Tracking System (SETS). Entry into
sets will facilitate our efforts to track site activities and to
respond to Congressional and other inquiries. Direct Regional
input of data into SETS on notice letter recipients is plaaned
for FY 1988.
It is not necessary to provide copies of each special notice
to the administrative record coordinator, State representative,
State or Federal trustee, or headquarters in instances where
identical notices are provided to multiple PRPs. Where there are
multiple PRPs at a site, a copy of one special notice with a list
of other parties who have received the letter would suffice.
7. Contents of RI/FS and RD/RA Special Notice
The RI/FS and RD/RA special notice letters should contain
the following components: a) a notification of potential
liability, b) a discussion about the special notice and
subsequent negotiation moratorium, c) a discussion about the
response activities to be conducted, d) a copy of a statement of
work or workplan and a draft administrative order on consent for
the RI/FS, e) a copy of a draft consent decree for the RD/RA (if
possible), f) a discussion about what constitutes a "good faith
offer" for the RI/FS, g) a discussion about what constitutes a
"good faith offer" for the RD/RA, h) a release of certain site-
specific information (where available and appropriate), i) a
demand for payment of EPA costs incurred to date, j) a
notification about the administrative record, and k) a deadline
for response to the letter and the name of the EPA representative
to contact.
a. Potential liability: The letter should specify thet
PRPs are potentially liable for the costs of conducting the RI/FS
or the RD/RA. A detailed discussion about potential liability is
not necessary particularly if the RI/FS or RD/RA special notice
references the general notice.
b. Special notice and formal negotiations; The letter
should discuss the purpose of the special notice and the
subsequent aegotiation moratorium. The level of detail will
depend upon whether the PRP has received the general notice and
whether the general notice provided an adequate discussion. At
a minimum, the letter should make clear that EPA is inviting PRPs
to participate in "formal" negotiations for PRP conduct of the
RI/FS or RD/RA and that this letter automatically triggers the
formal negotiation period. In addition, it is important that the
special notice indicate the date the negotiation moratorium will
conclude in the absence of and in the event of a "good faith
offer." Finally, the letter should explain that a consent order
or consent decree should be finalized by the end of the
moratorium.
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20
c. Respons* actions to be conducted; The letter should
identify the response activities EPA plans to conduct et the site
and provide scheduled dates for initiating such activities if
appropriate. „
d. Statement of work or workplan and draft administrative
order on consent for RI/FS special notice: The letter should
provide a statement of work or workplan and draft administrative
order (AO) on consent. Such information is crucial to PRPs in
their development of a "good faith offer" to BPA for conducting
or financing the RI/FS and for ultimately facilitating
settlements. The Regions are encouraged to provide the draft AO
on consent with the notice letter If practicable. At a minimum,
the letter should contain a copy of the statement of work with
the expectation that the draft AO will follow as soon as
practicable.
e- Draft consent decree for RD/RA special notice; The
letter should contain a copy of the draft consent decree if
possible. It is important that PRPs have the draft consent
decree at the start of negotiations or soon thereafter since the
decree contains important information which will assist PRPs in
developing their "good faith offer" to EPA.
f. "Good faith offer" for RI/PS; The letter should
indicate that a "good faith offer" is a written proposal which
demonstrates the PRP's qualifications and willingness to conduct
or finance the RI/FS. A "godd faith offer" for the RI/PS should
include the following:
o a statement of the PRPs willingness to conduct or finance
the RI/FS which is generally consistent with EPA's
statement of work or work plan and draft administrative
order on consent or provides a sufficient basis for
further negotiations;
o a paragraph-by-paragraph response to EPA's statement of
work or workplan and draft administrative order on
consent;
o a detailed statement of work or workplan identifying how
the PRPs plan to proceed with the work;
o a demonstration of the PRPs technical capability to
undertake the RI/FS. This should include a requirement
that PRPs identify the firm they expect will conduct
the work or that PRPs identify the process they will
undertake to select a firm;
o a demonstration of the PRPs financial capability to
finance the RI/FS;
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21
o a statement of the PRPs willingness to reimburse EPA for
the costs EPA incurs in overseeing the PRP conduct of the
RZ/FS as required by 1104(•)(!); and
o the name, address, and phone number of the party or
steering committee who will represent the PRPs in
negotiations.
g. "Good faith offer" for RD/RA; The letter should
indicate that a "good faith offer" is a written proposal which
demonstrates the PRPs qualifications and willingness to conduct
or finance the RD/RA. A "good faith offer" for the RD/RA should
include the following:
o a statement of the PRPs willingness to conduct or finance
the RD/RA which is generally consistent with EPA's
proposed plan or which provides a sufficient basis
for further negotiations in light of EPA's proposed
plan;
o a paragraph-by-paragraph response to EPA's draft consent
decree, including a response to other documents that may
have been attached to the decree such as a technical
scope of work for the proposed plan or access or
preauthorization agreements;
o a detailed "statement of work" or "workplan" identifying
how PRPs plan to proceed with the work;
o a demonstration of the PRPs technical capability to
undertake the RD/RA. This should include a requirement
that PRPs identify the firm they expect will conduct
the work or that PRPs identify the process they will
undertake to select a firm;
o a demonstration of the PRPs capability to finance the
RD/RA;
o a statement of the PRPs willingness to reimburse EPA for
past response and oversight costs;
o a discussion about the PRPs position on releases from
liability and reopeners to liability; and
o the name, address, and phone number of the party or
steering committee who will represent the PRPs in
negotiations.
h. Information release; To the extent such information is
available and to the extent such information has not been
previously released, the letter should contain information on the
names and addresses of other PRPs, the volume and nature of
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substances contributed by each PRP, and a ranking by volume of
the substances at the facility. Not* that th« release of
information with the RI/FS and RD/RA special notices is not
intended to require the release of information previously „
provided to PRPs.
i. Demand for payment: The letter should include a deaand
that PRPs reimburse EPA for the costs the Agency has incurred in
conducting response activities at the site pursuant to I107ta).
The letter should identify the action EPA undertook and the cost
of conducting the action., The letter should also indicate that
the Agency anticipates expending additional funds on activities
covered by this notice and other specified future activities.
Finally, the letter should demand payment of interest for past
and future response costs incurred by EPA pursuant to 1107(a).
Notice letters should not be delayed to obtain cost information
where such information has not been previously collected.
j. Administrative record; The letter should be used as a
vehicle for informing PRPs of the availability of an admin-
istrative record containing documents that form the basis for the
Agency's decision on the selection of remedy. The letter should
indicate that the record is open to the public for inspection and
comment. The letter should also indicate where the record will
be or has been located.
k. PRP response and EPA contact person; The letter should
encourage PRPs to notify EPA-of their interest to participate in
negotiations. The letter should indicate that PRPs may respond
as a group through a steering committee if a committee has been
formed. In addition, the letter should provide the name, phone
number, and address of the EPA representative to contact.
D. CONCLUSION OF NEGOTIATION MORATORIUM AND DEADLINE
MANAGEMENT FOR RI/FS AND RD/RA
At the conclusion of the §122(e) negotiation moratorium, the
Regions should have a fully negotiated administrative order on
consent for the RZ/PS and a fully negotiated consent decree for
the RD/RA which has been signed by the PRPs. A signed document
is necessary to show that an agreement has, in fact, been
reached. •
• Pre-SARA guidance for drafting an adainistrative order is
provided in "Superfund Administrative Order: Workshop and
Guidance Materials" (1985) and for drafting a consent decree in
"Guidance on Drafting Consent Decrees in Hazardous Waste Cases"
(Hay 1, 1985). These guidances are being revised to include
SARA's requirements.
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9834.10
At the conclusion of the 120 day moratorium for the RD/RA a
determination muse be mad* on whether to continue settlement
activities, whether the site should be cleaned up using Superfund
money, or whether to initiate a S106 enforcement action. A
continuation of settlement activities may include seeking an
extension to the 120 day negotiation moratorium as discussed
below, or sending a consent decree to the Department of Justice
for lodging in the appropriate district court.
In instances where an agreement has been reached and fully
negotiated but PRPs have not yet obtained signatures, it may be
necessary to obtain an extension to the negotiation moratorium.
Extensions may also be necessary where the agreement has not been
fully negotiated but all major issues are resolved and
outstanding issues are well defined and final language is
imminent. Extensions to the negotiation moratorium can be
obtained only in certain circumstances as discussed,in the
February 12, 1987 "interim Guidance: Streamlining the CERCLA
Settlement Decision Process." 10
The timing of special notice letters will have a significant
affect on our ability to successfully conclude negotiations at
the end'of the moratorium period. The Streamlined Settlement
Policy provides for two different processes for obtaining
extensions for the RI/FS and RD/RA moratoriums. The policy
indicates that the Regional Administrator has the discretion to
terminate or extend negotiations for the RI/FS after 90 days.
However, extension of negotiations beyond an additional 30 days
should be authorized by the Regional Administrator only in
limited cases.
Relating to the RD/RA moratorium, the Streamlined Settlement
Policy provides for either Regional or Headquarters approval of
an extension under certain circumstances. An extension to the
120 day RD/RA moratorium may be granted for an additional 30 days
by the Regional Administrator when settlement is likely and
imminent. An additional extension beyond the 30 days may be
approved only by the Assistant Administrator for the Office of
Solid Wast* and Emergency Response (OSWER) and only in rare and
extraordinary circumstances.
This guidance re-emphasizes the importance of meeting the
90 day moratorium for the RI/FS and the 120 day moratorium for
the RD/RA. To aid that policy, this guidance identifies three
circumstances where the Regional Administrator and Assistant
Administrator for OSWER may consider granting such extensions for
the RD/RA moratorium.
10 This guidance was issued under OSWER Directive 19832.9.
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First, it may be appropriate for th« Rational Administrator
or th« Assistant Administrator to axtand tha 120 day moratorium
for tha RD/RA if EPA salacts a ramady in tha ROD which is
significantly diffarant from tha Agency's statad prafaranca in
tha proposad plan. This could maan that tha focus of
negotiations could changa significantly, requiring additional
time to reach agreement with PRPs.
The second example applies to Fund-lead sites. Zt may be
appropriate for the Regional Administrator or tha Assistant
Administrator to extend the 120 day negotiation moratorium for
the RO/RA if non-enforcement activities at tha site (e.g. an
extended public comment period or en extended ROD review and
approval process) cause a significant delay in tha Agency's
ability to move forward in implementing a Fund-financed ramady.
An extension to the negotiation moratorium may be especially
appropriate if there is reason to believe a negotiated settlement
is imminent. In other words, if the Fund is not ready to move
forward in implementing the remedy at tha end of the 120 day
negotiation moratorium there is no reason to conclude
negotiations if there is reason to believe an agreement can be
reached.
The third example applies to enforcement-lead sites. Zt may
be appropriate for the Regional Administrator or the Assistant
Administrator to extend the 120 day negotiation moratorium for
the RD/RA after a S106 litigation referral has bean prepared and
referred to the Department of Justice (DOJ) for action. Zn fact,
the preparation and referral of a case to DOJ may be an important
mechanism for providing the necessary impetus for reaching a
voluntary settlement. Zn many cases it may be appropriate to
issue a unilateral administrative order concurrent with the
referral.
VI. NOTZCE LETTERS AND NEGOTIATION MORATORIUM FOR REMOVAL
ACTIONS
The notice letter process for removal actions differs from
the notification process for remedial actions. As discussed
above, the notification process for remedial actions involves
issuance of three notice letters. The notification process for
removals will involve only one notice letter which may or may not
invoke the 1122(a) special notice procedures as discussed below.
A. NOTICE LETTERS
1. Whether to Issue Removal Notice
The Regions should attempt to contact PRPs prior to
initiating a Fund-financed removal action to inform PRPs of their
potential liability where EPA will incur response costs or
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9834.10
25
to aecure a private party reaponae. This guidance encouragea tha
Regions fro. seek PRP response through a written notice letter but
the Regiona may contact PRPs verbally (with a written follow-up
notice). Thia is consistent with the guidanea on "Issuance of
Administrative Ordera for Immediate Removal Aetiona" (2/21/84).
Tha Ragions should issue notice letters to readily
identifiable PRPs for removal actions in the vast majority of
cases. The content of the notice will vary depending whether the
notice will be used simply to notify PRPs of their potential
liability for an action EPA haa already taken or ia about to
take, whether the notice will be used to eaeourage a private
party response through "informal" negotiations (i.e. negotiations
not triggered by the S122(e) speeial notice proeedurea), or
whether the notice will be uaed aa a machaniam for invoking the
§122(e) special notice proeedurea which provide for "formal"
negotiationa between EPA and PRPs.
2. When to Uaa Special Notice Procedures for Removals
The Regions should consider using the S122(e) speeial notiee
procedures only for those removals where the threat is of a
nature that it is not neceaaary to initiate an onsita removal
action for at laaat aix montha. The "six month planning time
period" begins once the site evaluation is completed. This means
that for tha vast majority of ramoval actions the Regions will
not be required to utilize the apaeial notiee procedures. It is
not appropriate to utilize ap'ecial notices for most removal
actions because the aubaequent moratorium may interfere with the
Agency's ability to implement the remedy in a timely manner. In
addition, it may not be worth expending the time and reaourcea to
enter into formal negotiations when a ramoval will be a
relatively short term and inexpensive response action.
Tha Ragions should include the following factors in thair
determination of whether it is appropriate to utilize the speeial
notiee proeedurea for removala with a six month planning lead
time: 1) whether viable PRPs have been identified, 2) whether
the PRPs are expected to respond favorably to the invitation to
participate in negotiations and to conduct or finance the removal
action, 3) whether issuance of the speeial notiee eould delay
implementation of the removal action, and 4) whether it may be
more appropriate to enter into "informal" negotiations in lieu of
"formal" negotiations under I122(e).
In determining the PRPa viability, the Region should inquire
about the PRPa financial and technical capability for eoadueting
and/or financing tha ramoval action in an effective and timely
manner. In determining the PRPs willingness to undertake or
finance the removal action, the Region should, at a minimum,
obtain a verbal agreement from the PRPa prior to issuance of the
special notice. In determining whether the apecial.notice may
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9834.10
26
delay implementation of the remedy or in determining whether to
enter into "informal" rather than "formal" negotiations, the
Regions should consider whether the §122(e) negotiation
moratorium would interfere with other activities at the site.
3. Notifying PRPs When Not Appropriate to Utilize
Special Notice Procedures for Removals
EPA's decision on whether to use the special notice
procedures for any response action is clearly discretionary.
However, 5122(a) requires the Agency to notify PRPs in writing
when the Agency decides not to utilize such procedures. The
removal notice provides a convenient vehicle for informing PRPs
of EPA's decision not to utilize the special notice procedures.
The notice should, therefore, inform PRPs of EPA's decision not
to utilize such procedures when this determination has been made
and should provide an explanation for that decision.
4. DOJ Role in Removal Negotiations
The Regions should consult with the Chief of the
Environmental Enforcement Section of DOJ prior to issuing a
special notice letter for removal actions where settlement by
consent decree is contemplated, or where the settlement is
expected to involve a compromise of past or future response costs
and the total response costs will exceed $500,000. The Regions
should consult with DOJ prior to releasing a draft consent decree
to PRPs.
5. Timing of Removal Notice
A removal notice that does not invoke the special notice
procedures should be provided to PRPs as soon as practicable.
For removal notices that invoke the special notice procedures,
the notice should be issued as early as possible but no later
than 120 days before the scheduled date for initiating the
removal action. The scheduled date for initiating the removal
action is the date removal extramural cleanup contractor funds
will be obligated and onsite cleanup will begin.
The timing of a notice which invokes the special notice
procedures is critical because issuance of the notice triggers
the subsequent 60 to 120 day moratorium on EPA conduct of the
removal action. (The moratorium would last only 60 days in
instances where the PRPs do not provide EPA with a "good faith
offer"). Issuing the special notice at least 120 days before EPA
will begin the removal ensures that the subsequent 120 day
moratorium does not affect EPA's ability to implement the removal
action in the event negotiations do not result in an agreement
for PRP conduct of the removal action.
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983410
27
6. fteyiPJsnts of Removal Notice
The removal notice should be sent to all parties where there
is sufficient evidence to make a preliminary determination- of
potential liability under 1107 of CERCLA. If a Federal agency
has been identified as a generator at a facility not
owned/operated by the Federal agency, such agency should be
routinely notified like other PRPs.
Copies of removal notices should be provided to the Regional
administrative record coordinator, the appropriate State
representative, and to headquarters. Providing copies to the
administrative record coordinator is important for ensuring that
the notice to be placed in the record. Providing copies to the
State representative is important for ensuring that States are
appropriately informed about possible future negotiations.
Providing copies to the Information Management Section
within the Program Management and Support Office of the Office of
Waste Programs Enforcement for entry into the Super fund
Enforcement Tracking System (SETS) . Copies should be cent to
OWPE at the same time they are sent to PRPs. Providing copies to
OWPE is essential for facilitating our efforts to track site
activities and -to respond to Congressional and other inquiries.
It is not necessary to provide copies of each removal notice
to the administrative record .coordinator. State representative,
State or Federal trustee, or "headquarters in instances where
identical notices are provided to multiple PRPs. Where there are
multiple PRPs at a site, a copy of one removal notice with a list
of other parties who have received the letter would suffice.
7. Contents of Removal Notice
As indicated, the content of the removal notice will vary
depending upon whether the purpose of the letter is to simply
inform PRPs of their potential liability or whether the letter
will also b« used to provide an opportunity for PRP involvement
in negotiations either through "informal" or "formal"
negotiations. The following highlights the components that
should be included in the three diffsrent types of removal
notices. The specific content of each component of the removal
notice should be essentially the same as described earlier for
RI/PS and RO/RA general and special notices, except where
otherwise specified.
a. Notice of potential liability; If the purpose of the
removal notice is simply to inform PRPs of their potential
liability and to provide notice that the Agency has or is about
to take a response action, the notice should contain the
following components: a notice of potential liability; a
discussion about site response activities that have been or will
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9834.10
b« conducted «t the site; a notice on the availability of an
•dministratlve record; and a notice pursuant 1122(a) that the
special notice procedures will not be used.
«•
The notification under 1122(a) should inform PRPs that the
Agency will not (or did not) use the 1122(e) special notice
procedures for this particular response action and should provide
an explanation for that decision. The letter should indicate
that it is the Agency's policy not to use the special notice
procedures for removals unless there is a six month planning lead
time prior to the initiation of the response action. If the
response action does involve a removal with a six month planning
lead time but the Agency made a case-specific determination not
to use the special notice procedures, the letter should provide
an explanation why the use of such procedures was determined to
be inappropriate for that particular response action.
b. Notice of potential liability and opportunity to enter
into "informal* negotiations; If the purpose of the removal
notice is to inform PRPs of their potential liability and to
provide PRPs with an opportunity to enter into negotiations with
BPA without invoking the fl22(e) special notice procedures, the
notice phould contain,the following components: a notice of
potential liability; a discussion about site response activities
that will be conducted at the site; a copy of the statement of
work or workplan and draft administrative order on consent; a
notification pursuant to 1122(a) that the special notice
procedures will not be used;"a request that PRPs notify EPA
within a specified period of time of their interest to
participate in negotiations; a notice on the availability of the
administrative record; and information on the IPA representative
to contact. The 1122(a) notification should contain the same
information discussed in the proceeding paragraph.
c. Notice of potential liability and opportunity to enter
into "formal" negotiations pursuant to i!22(e) special notice
procedures; If the purpose of the removal notice is to inform
PfcPs of their potential liability and to provide PRPs with an
opportunity to enter into negotiations with BPA using the 1122(e)
special notice procedures, the notice should contain the
following components: a notice of potential liability; a
discussion about site response activities that will be conducted
at the site; a discussion about the special notice procedures and
the negotiation moratorium; a copy of the statement of work or
workplan and draft administrative order on consent; a discussion
about what constitutes a "good faith offer"; a reo^iest that PRPs
notify BPA within a specified period of time indicating their
interest to participate in negotiations; a notice on the
availability of the administrative record; and information on the
EPA representative to contact. The "good faith offer" should
contain essentially the same components as described above for
the RD/RA.
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9834.10
29
§. <;9f?L,ySION OF NEGOTIATION MORATORIUM AMD
p|A.pLINE MANAGEMENT FOR REMOVALS
At the conclusion of the 1122(•) negotiation moratorium for
removal action*, the Regions ahould hava a fully negotiated
adminiatrativa ordar on conaant which has baan aignad by tha
PRPa. (Whara appropriate, a aignad conaant dacraa ahould ba
providad). A aignad administrative ordar on conaant (or a
conaant dacraa) will ahow that tha nagotiationa hava baan
successfully completed.
Tha axpactation ia that tha negotiations will ba eoncludad
at tha and of tha 120 day moratorium and tha Regiona ara atrongly
encouraged to conclude the negotiationa within thia period of
time. In inatances where the negotiationa do not reault in an
agreement, the Regions may aeek an axtenaion to tha 120 day
moratorium, iaaue an administrative ordar, or proceed with a
Fund-financed removal. Note that the Regional Administrator aay
grant an extension to the 120 day moratorium only in limited and
appropriate circumstances.
C. ADMINISTRATIVE ORDERS AMD NEGOTIATION MORATORIUM
FOR REMOVALS
In moat inatancas, use of the apecial notice precadurea for
removal actions will not affect existing policy on iaauing
administrative orders for removals since the apecial notice
procedures will be issued for only a email portion of removals.
For details on the Agency'a policy on administrative orders refer
to the guidance on "Issuance of Adainistrative Orders for
Immediate Removals" (2/21/84).
It is necessary, however, to modify existing policy in one
respect. In instances where Regions use the special notice
procedures for a removal action and where issuance of an
adainistrativa ordar ia neceasary and appropriate, the Regions
should not issue the order until the end of the negotiation
moratorium. This ensures that the negotiation moratorium will b«
used to negotiate voluntary settlements.
VII. DISCLAIMER
The policies and procedurea eatablished in this document
ara intended aolely for the guidance of Government personnel.
They are not intended and can not be relied upon to create any
rights, substantive or procedural, enforceable by aay party ia
litigation with the United States. The Agency reserves the right
to act at variance with these policies aad procedurea aad to
change them at any time without public notice.
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983410
30
VIII. FOR rURTgR IFORMATION
For further information or questions concerning this
guidance, please contact Kathy MacKinnon in the Office of Haste
Programs Enforcement at FTS-475-6770.
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983410
Appendix A
Timing of RD/RA Special Notice Letter
-------
A. General Approach: Issue RD / RA Special Notice When Release
Draft FS and Proposed Plan
Selection off Remedy Process
Conduct
RVFS
Review/
Release
FS/Propo*dd
Plan
Public
Com-
ment
Review
ROD
]
Conduct /
RD \
(
Notice and
Negotiation
Moratorium
Extended
Negotiation
Moratorium
Special Notice / Negotiation Moratorium
l
o
18
19
20
21
22
23
24
25
26
27
28
29
OO
Timeline (Months)
O
-------
B. Alternative Approach: Issue RD / RA Special Notice Prior to
Release of Draft FS and Proposed Plan
Selection off Remedy Process
Conduct
RVFS
n*iii«»Mf
rtOVlOWr
Rateasa
Screening
of Alternatives
B^^uj^^^^4
rwvNiw
Release
FS/Propoted
Plan
Public
Com-
ment
Review
ROD
Notice and
Negotiation
Moratorium
Extended
Negotiation
Moratorium
Special Notice / Negotiation Moratorium
IB
19
20
21
22
23
24
25
Timeline (Months)
26
27
28
29
oo
Osl
CD
-------
C. Alternative Approach: Issue RD / RA Special Notice Once ROD
Signed
Selection of Remedy Process
Conduct
RUFS
FS/Proposed
Plan
Public
Com-
ment
OjMjkMAt
fvWWW
ROD
Conduct J
RO V
Notice and
Negotiation
Moratorium
Extended
Negotiation
Moratorium
Special Notice / Negotiation Moratorium
I
o
18
19
20
21
22
CD
23
24
25
26
27
28
29
Timeline (Months)
CD
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9834.JG
Appendix B
PRP Settlement Process for RI/FS and
RD/RA
-------
PHP Settlement Process for Rl / FS
•00*
MO*
PuMott
CO
-------
PRP Settlement Process for RD/RA
000*
fSjr
I
I
Heart* f
*» ri
I
OO
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Draft Guidance on CERGLA 106
Administrative Orders for Removal Actions
-------
vr
\
HI
o
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUN I 9 1989
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Draft Guidance on CERCLA §106 (a) Administrative Orders
for Removal Actions
FROM: John Cross
Office of Waste Programs Enforcement
TO: Oil and Hazardous Materials Coordinators
Regions I-X
We are circulating an early draft of the Guidance on CERCLA
§106 (a) Administrative Orders for Removal Actions at this time to
facilitate your discussion of §106 orders at the upcoming Removal
Managers' meeting. The guidance is in preliminary form, and will
be subsequently circulated for comment to Regional Enforcement
Branch Chiefs and Regional Counsel.
The guidance is designed to reflect statutory changes
implemented by SARA and changes in Agency policy due to Agency
experience. The guidance is also consistent with the Agency's 90
Day Review Report and concepts endorsed by the Settlement
Incentives and Disincentives Work Group. An endorsed draft
guidance is expected to be distributed formally by the end of
this summer jointly by OWPE and OECM.
If you wish to submit written comments on the draft
guidance, please send them by pouch mail to Kathryn Nolan at EPA
Headquarters, OWPE, OS-510. If you have any questions concerning
this guidance, she can be reached at (FTS) 382-2034. Thank you
for your assistance in the review of this document.
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DRAFT
MEMORANDUM
SUBJECT: Guidance on Issuance of CERCLA §106(a)
Administrative Orders for Removal Actions
FROM: Jonathan Z. Cannon, Acting Assistant Administrator
Solid Waste and Emergency Response
Edward E. Reich, Acting Assistant Administrator
Enforcement and Compliance Monitoring
TO: Regional Administrators,
Regions I-X
I. Introduction
This memorandum sets forth procedures regarding issuance
§106(a) administrative orders for removal actions under the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986 (CERCLA or Superfund). This guidance
applies to unilateral enforcement actions and settlement agreements
for potentially responsible party (PRP) conduct of removal actions
based on §106 of CERCLA. It is designed for use by On-Scene
Coordinators (OSC), Office of Regional Counsel (ORC), and Removal
Program Managers. For additional guidance on legal issues related
For guidance on the general purposes and principles of
the Agency's administrative order authority under §106(a) of
CERCLA, and more detailed procedures on implementation of that
authority, see the (date) memorandum, "Guidance on CERCLA §106(a)
Administrative Orders for Remedial Actions" (OSWER Directive number
XXX). These memoranda together supersede the September 8, 1983
"Guidance Memorandum on Use and Issuance of Administrative Orders
Under §106(a) of CERCLA" (OSWER Directive number 9833.0) and the
February 21, 1984 guidance on "Issuance of Administrative Orders
for Immediate Removal Actions" (OSWER Directive number 9833.1A).
Changes to the guidances are the result of statutory amendments and
Agency experience.
For a discussion of general principles governing
settlement agreements, see the Interim CERCLA Settlement Policy^
dated December 5, 1984 (OSWER Directive number 9835.0).
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DE5) A ici'SP
Ki^ir3 r
to §106 administrative orders, see the memorandum entitled
"Guidance on CERCLA §106(a) Administrative Orders for Remedial
Actions" (OSWER Directive number XXX).
In order to successfully conduct the largest number of
removals, the Agency must secure private party response actions.
To accomplish this, in appropriate circumstances, the Agency
negotiates settlement agreements embodied in §106(a) consent
administrative orders (consent orders) with parties willing to do
the work. The Agency issues §106(a) unilateral administrative
orders (unilateral orders) when private parties are not willing to
undertake work as part of a consent order.
Private party removals serve an important function in the
Superfund response and enforcement process. Private party removals
can free up the Fund for additional removal actions at sites
without financially viable PRPs. PRPs are also introduced to the
Superfund enforcement and settlement process, and therefore are
more likely to cooperate if subsequent response actions are
necessary. Finally, when private parties conduct the removal
action, it eliminates the need for subsequent cost recovery
actions, which frequently demand considerable time from Regional
technical and legal staff, and frequently occur under statute of
limitations deadlines.
II. General Procedures for Enforcement Removal Actions
Civil investigators working together with the OSC should
conduct a PRP search immediately after the OSC determines the need
for a removal action. While the OSC determines the scope of the
removal, the OSC and/or ORC should develop an enforcement strategy.
The exigencies of the circumstances, particularly in an emergency
removal context, will affect the enforcement approach.
PRP Notification
Once PRPs have been identified, OSCs should notify them in
writing that EPA is planning to conduct a response action at the
site and that they are potentially liable. The notice should state
that PRPs may agree to conduct the response action through a
Appendix A of this document defines the two types of §106
administrative orders and distinguishes them from their judicial
counterparts-. For guidance on the role of §106 judicial actions
and procedures to follow for their implementation, see the
memorandum, "Guidance on CERCLA Section 106 Judicial Actions,"
(Reich/Porter, 2/24/89) (OSWER Directive Number 9835.7). For
information on issuing §106 unilateral administrative orders to
Federal facilities, see "Enforcement Actions under RCRA and CERCLA
at Federal Facilities," dated January 25, 1988 (OSWER Directive
number XXX).
-------
settlement agreement with the Agency. Although time may not permit?
settlement negotiations at sites where a true emergency exists, the
Agency should attempt to notify all known PRPs prior to conducting
any response action. OSCs may send this notice prior to fully
delineating the scope of the removal. Advance notice to PRPs is
particularly important at sites with multiple PRPs. To expedite
the settlement process in time-critical situations, OSCs may
initially contact PRPs orally. Oral notification should be
followed by written confirmation. Written notice to PRPs at time-
critical removal sites may take the form of a general notice letter
or a CERCLA §122 (a) letter. There is no need for oral notification
at non-time-critical removal sites. At non-time-critical removal
sites, OSCs should notify PRPs through special notice letters or
CERCLA §122(a) letters. The Agency should issue CERCLA §122(a)
letters when a decision is made not to issue special notice at a
site. For examples of all three letters, see Appendix C of this
guidance. For further information concerning special notice
procedures, see the "Interim Guidance on Notice Letters,
Negotiations and Information Exchange11 (Adams/Porter _/_/_) (OSWER
directive number 9834.10), 53 Fed. Reg. 5298 (1988).
Action Memorandum
Following PRP notice, OSCs should finalize the scope of the
removal, determine whether to enhance the PRP search, and begin PRP
negotiations. At the start of negotiations, OSCs should providg
PRPs with a document which summarizes the work required at the sitq
(a statement of work) and establish a negotiations deadline. The
statement of work should be accompanied by a draft consent order
prepared by the Superfund Enforcement personnel and reviewed and
approved by ORC.
A signed Action Memorandum should be prepared during
negotiations. An Action Memorandum serves several purposes in
addition to its traditional function of authorizing Fund financing
at sites. During negotiations, it notifies PRPs that the Agency
has the finances to conduct the removal with the Fund, and sue for
treble damages. A signed Action Memorandum also constitutes an
important part of the administrative record for the removal action
response decision, and will be critical in any enforcement case
initiated to enforce a unilateral order, in the event that an order
is issued.v A confidential addendum to the Action Memorandum sets
forth the enforcement strategy.
Unilateral' Orders/Consent Orders
If PRPs agree by the negotiation deadline to conduct the
removal, a consent order should be signed. If PRPs do not agree
by the negotiation deadline to conduct the removal, the
negotiations team should strongly consider issuing a unilateral
order. Unilateral orders.should routinely be issued in cases which
meet the criteria set forth in Part V of this guidance. Issuance
-------
of a unilateral order should be considered prior to either Fund
financing or a judicial referral. Unilateral orders give PRPs a
final opportunity to participate in the cleanup process before a
court compels them to do so. Under unilateral orders, PRPs incur
liability for the cleanup, penalties and damages. Moreover,
issuing a unilateral order prior to judicial referral should
further support record review of the Agency's response action in
any subsequent court proceeding.
If PRPs ask to settle with the Agency as they prepare the
first deliverable under the unilateral order, OSCs and ORC may
attempt to negotiate a consent order with the PRPs. Consent orders
are beneficial to the Agjency because EPA may recover past costs
through a consent order. However, in most situations, PRPs have
already been given an opportunity to settle with the Agency prior
to this point. Therefore, if PRPs do not readily agree to sign a
consent order during these negotiations, negotiations should be
terminated and PRP conduct of the response action should continue
under the unilateral order.
If PRPs agree to conduct the removal but not to sign a consent
order, and the case does not meet the criteria for a unilateral
order (i.e. no imminent and substantial endangerment), the Agency
may conduct the removal with Fund finances. Where there are
special circumstances, and where Fund financing is not available,
PRPs may proceed with conduct of the removal under Agency
oversight. At the outset of such PRP action, ORC must provide
written notice to these PRPs. The written notice should notify
PRPs that they will continue to be liable in the event that a
subsequent response action is required at the site. This written
notification protects the interests of the Agency in the event that
the response action is not fully or adequately executed.
Oversight
Under both consent and unilateral orders, oversight should be
conducted routinely to ensure PRP compliance with the terms of the
order. OSCs must immediately bring work corrections and missed
milestones to the PRPs1 attention. Under a consent order, PRPs
See Appendix A, Part II for an explanation of a judicial
referral.
Under a unilateral order, past costs may be obtained through
a demand letter or a cost recovery action.
Any compromise of past costs must be conducted under the
authority of CERCLA §122(h) (1) . If a past cost is compromised and
total past additional response costs at the site (i.e. work and
money) exceed $300,000 excluding prejudgment interest, prior
written approval of the compromise must be obtained from DOJ.
-------
D
will be liable for stipulated penalties for noncompliance. ThP
Agency should be prepared to obligate the Fund and/or refer the
case to the Department of Justice (DOJ) should it ba determined
that the PRP does not intend to comply with the order. Through a
judicial referral, the Agency may obtain stipulated penalties, §106
daily penalties, and/or PRP compliance with the order.
III. Statutory Requirements for Issuing 3106(a) Consent and
Unilateral Administrative Orders
Section 106(a) administrative orders for removal actions must
meet several statutory requirements. These statutory requirements
apply to both removal consent and unilateral administrative orders.
The Action Memorandum should already contain the information needed
to support these statutory requirements. OSCs should ensure that
this information is adequately contained in the Action Memorandum.
Superfund Enforcement Personnel and/or ORC should consult the
Action Memorandum when drafting the removal consent and/or
unilateral order.
The statutory requirements which apply to both consent and
unilateral orders are described in numbers 1-4 below. The fifth
statutory requirement set forth below applies only to unilateral
orders.
1) Evidence of a Release or Threatened Release of a Hazardous
substance
A removal action may be funded by the Agency when there is
information regarding release or threat of a release of a hazardous
substance. Similarly, a unilateral order may be issued under
section 106 where there is a release or a threatened release of a
hazardous substance. The nature of the determination of the
release or threat of release should be identified in the order.
The hazardous substances that are the subject of the release
or threat of release should be documented in the Action Memorandum.
At least some of the hazardous substances should be referenced in
the order as well.
2) Evidence that the Release or Threatened Release is from a
Facility
The order should specify the physical location of the release
or threatened release. This establishes that the release or
threatened release is from a facility as defined in CERCLA §101(9).
See CERCLA section 101(22) for the definition of a release.
CERCLA section 101(14) defines hazardous substances; see also 40
C.F.R. § 302.4.
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DRAFT
3) Evidence of Imminent and substantial Endangerment
The tarn imminent and substantial endangerment has a
particular meaning in environmental statutes. An endangerment is
a threatened or potential harm; actual harm need not be shown. An
endangerment may be imminent if the conditions which give rise to
it are present, even though they may not be realized for years.
When §106(a) administrative orders are issued for removals, the
data base available to support an endangerment finding may be
limited. It will most likely consist of information from the
inspection and preliminary sampling data. This information should
be documented in the Action Memorandum and referenced in the
unilateral order.
4) Notice to Affected State
Regions must notify the state prior to issuing a unilateral
order. The affected state is interpreted to be the state where the
facility with the release or threatened release is located.
Written notification to the state should precede Federal action,
if possible. When rapid response at a site is necessary, notice
may be provided in a telephone call from the EPA Division Director
to the director of the state lead agency responsible for the CERCLA
program. Written confirmation of oral notice always must follow.
5) Persona who may Receive Unilateral Orders
The classes of persons who may receive unilateral orders
include, at a minimum, the four classes of parties who are liable
under section 107 of CERCLA. These classes generally are (1)
present owners and operators, (2) past owners and operators at the
time of disposal, (3) persons who arranged for treatment or
disposal, and (4) transporters who selected the site. In addition,
other persons may receive unilateral orders to assure relief. For
example, unilateral orders may be issued to obtain the necessary
cooperation of parties indispensible to completion of a response
action.
See the previously mentioned guidance on §106 remedial
administrative orders if greater detail is needed concerning these
statutory requirements.
IV. Elements ot Unilateral ^^"iniatrativa Orders
In addition to statutory prerequisites that must be satisfied
before unilateral orders may be issued, other substantive elements
are usually included in unilateral orders. These elements are
necessary for the unilateral orders to be both enforceable and
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effective. A unilateral order should contain the following
sections:
o Introduction and Jurisdiction;
o Parties Bound;
o Findings of Fact;
o Conclusions of Law and Determinations;
o Notice to the State;
o Work to be Performed;
o Quality Assurance;
o Modification of the Work Required;
o Compliance with Other Applicable Laws;
o Designated Project Coordinators and OSC Authority;
o Progress Reports, Notice of Delay;
o Access and Data/Document Availability;
o Administrative Record, Record Preservation;
o Reimbursement of Oversight Costs;
o Further Enforcement, Reservations, and Disclaimers;
o Effective Date/Subsequent Modification;
o Opportunity to Confer; and
o Termination and Satisfaction.
The guidance on §106 remedial administrative orders contains
a discussion of the following provisions: Findings of Fact;
Conclusion* of Law and Determinations; Work to be Performed;
Effective Date; and Opportunity to Confer. See also the Model
Unilateral Order for Removals, dated XXX (OSWER Directive number
XXX) . - —
a
Although a unilateral order for a removal action should
include an assertion tiiat the removal action is consistent with the
NCP, it is recognized that the NCP expressly exempts from certain
provisions of its coverage removals conducted by PRPs pursuant to
§106 of CERCLA. See 40 C.F.R. Part 300.65(h).
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V. Factors for Issuing Unilateral Orders in Removal Actions
The following factors should be considered when issuing
unilateral orders for removal actions. These factors differ from
§106 judicial action factors because unilateral orders serve many
different purposes. For a discussion of the policy criteria
relevant to §106 judicial actions, see the Guidance on CERCLA
Section 106 Judicial Actions, mentioned previously.
A) Immediacy of the Meed to Respond
Generally, it will not be possible to issue unilateral orders
for true emergency removals. At time-critical removal sites, if
there is sufficient time (e.g., two weeks) before on-site activity
must begin, a unilateral order may be issued. Alternatively, the
Regional office may wish to stabilize site conditions and issue a
unilateral order for the remainder of the removal action.
There is sufficient time at non-time-critical removals to
issue a unilateral order before on-site activity must begin. By
definition, non-time-critical removals have a planning period of
more than six months before on-site activity must begin.
B) PRPs are Liable and Mo indication that they are not
Financially Viable
Unilateral orders should only be issued to PRPs for whom the
Agency has sufficient evidence as to their liability. Information
documenting PRP liability should have been secured through PRP
searches, including §104 information requests. Unless there is
information to the contrary, the Regions should assume that PRPs
have the financial capability to conduct the removal.
C) The Response Action should be Specifically Defined
The unilateral order should define the removal response action
with enough specificity to instruct the PRPs as to what is expected
of them. A clearly defined response action is also necessary for
the Agency to determine whether the PRPs have complied with the
order. Where possible, this information may be directly
incorporated into the unilateral order from the Action Memorandum.
Where site conditions necessitate a "decide as proceed" approach
and the removal action cannot be specifically defined, a unilateral
order generally should not be issued.
D) Unique Technical Problems/oversight
Where a removal action presents unusual implementation
difficulties for the PRPs, or unique technical problems which may
present unusual oversight difficulties for the Agency, the site may
be inappropriate for a unilateral order.
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E) PRP Technical Inability/Lack of Trustworthiness
Due to the technical inability of the PRPs, and/or their lack
of trustworthiness, the Agency's oversight of nonsettling PRPs may
differ from that of settling PRPs, despite the fact that PRPs
operating under unilateral orders are subject to daily penalties
for failure to comply with the terms of the order. Therefore,
Regional offices should consider the technical ability of the PRPs
and/or their trustworthiness prior to issuing a unilateral order.
F) Very Low Coat/Low Priority
Removal actions estimated to cost relatively little to
conduct, and/or removal actions which are low in priority, may not
be appropriate for unilateral orders.
G) Resources
If critical legal staff are not available to assist in a
removal enforcement action, OSCs may conduct the cleanup through
Fund financing, or stabilize the site and postpone enforcement
action until enforcement resources are available.
VI. Follow-OP Procedures for Unilateral Orders
Agency policy is to provide PRPs an opportunity to discus||
implementation of a unilateral order with the Agency. The
conference is not an adversarial hearing and does not constitute
part of a proceeding to challenge the order. Instead, the
conference is designed to ensure that the order is based on
complete and accurate information, and to facilitate
implementation. See the guidance on §106 remedial administrative
orders for further information on the conference. In the case of
removals without much lead time, the Agency may provide less formal
conference procedures than that described in the §106 remedial
administrative order guidance.
In the event of noncompliance with the unilateral order,
Regions have flexibility to take one of the following actions:
seek penalties to compel compliance with the order, takeover the
project and utilize Fund financing, or seek a court order
compelling PRP conduct of the removal action. Where the OSC
decides that site specific circumstances require an immediate
response, or the ORC assesses our likelihood of success at court
to be minimal, Regions should utilize Fund financing. Therefore,
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Q
site circumstances may dictate the proper course of action. The
Agency may need first to stabilize the site before referring a case
to DOJ. For further information, see the guidances on §106
remedial administrative orders and §106 judicial actions.
on Purose and Use of this
The policy and procedures set forth herein, and internal
office procedures adopted pursuant hereto, are intended solely for
the guidance of attorneys and employees of the U.S. Environmental
Protection Agency. They are not intended to, nor do they
constitute rulemaking by the Agency, and may not be relied upon to
create a right or benefit, substantive or procedural, enforceable
at law or in equity by any person. The Agency may take any action
which is at variance with the policies or procedures contained in
this memorandum, or which is not in compliance with internal office
procedures that may be adopted pursuant to these materials.
If you have any questions concerning any material contained
herein, please call Kathryn Nolan (FTS) 202-382-2034 of the Office
of Waste Programs Enforcement.
n
Under Agency policy, Regions have discretion to determine
the proper course of action in the event of PRP noncompliance with
unilateral orders. Regions have discretion to take courses of
action other than Fund financing followed by cost recovery.
10
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APPENDIX A
ADMINISTRATIVE AND JUDICIAL SETTLEMENT AND ENFORCEMENT TOOLS
I. Administrative Enforcement
Settlement: §106 Consent Administrative Orders
The Agency bases its removal settlement agreements on section
106 of CERCLA. Removal settlement agreements may be encompassed
in §106 consent administrative orders or consent decrees. If PRPs
do not adequately comply with §106 consent orders, the Agency may
pursue stipulated penalties, §109 monetary penalties, and §106
daily penalties through a referral to DOJ (see below).
No Settlement: §106 Unilateral Administrative Orders
Where there is no settlement agreement, unilateral orders may
be used to compel PRPs to conduct removals. Upon receipt of
unilateral orders, PRPs may comply with the terms of the orders and
conduct the removal, or they may decide to settle with the Agency.
If PRPs decide to settle, the unilateral orders may be replaced
with a consent order.
If PRPs do not comply with the unilateral order, a court may
impose daily fines under §106(b)(1), and/or punitive damages in »j
amount up to three times that expended from the Fund. Punitive
damages may be obtained only in the event of a cleanup financed by
the Fund. Therefore, if a settlement agreement cannot be reached,
Regions should consider issuing a unilateral order. This
facilitates Agency collection of penalties or punitive damages for
noncompliance.
II. Judicial Enforcement
Noncompliance with the Order: §106 Judicial Actions
Administrative orders are not self-enforcing, nor can the
Agency enforce them without assistance from the pertinent Federal
District Court. The Agency seeks enforcement of its administrative
orders in court through the assistance of the Department of Justice
(DOJ). If PRPs refuse to comply with a unilateral order directing
them to conduct a removal, and circumstances at the site do not
require iaoMdiate site cleanup with Fund finances, the Agency
should refer-the case to DOJ. DOJ will file the case in court for
judicial enforcement. Even if the Agency cleans up the site with
Fund finances, the Agency may refer a case to DOJ for the
collection of penalties or damages, along with a cost recovery
action for Fund expenditures, from recalcitrant PRPs. Referrals
to DOJ are necessary whether the Agency seeks compliance with the
order or penalties. Referrals to DOJ are made through a section
106 judicial action.
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APPENDIX B
Removal Actions—-Scop* of Response
Section 101(23) of CERCLA defines the term "removal" to
include a variety of activities. Removal activities include, among
others: monitoring, assessing and evaluating the release or threat
of release of hazardous substances; disposal of removed material;
measures to limit access; provision of alternative water supplies;
and temporary evacuation and housing of threatened individuals not
otherwise provided for. The National Contingency Plan and the
February 1988 "Superfund Removal Procedures, Revision Number Three"
(OSWER Directive number 9360.0-03B) divide the statutory concept
of removals into Classic Emergencies, Time-Critical, and Non-Time-
Critical removal actions. These determinations are based upon the
site evaluation which examines the immediacy and the severity of
the hazard to public health and the environment. The categories
establish a scale for assessing the length of time within which the
Agency must respond to an event. Once a site has been categorized,
it does not change categories.
Classic emergency removal actions are undertaken if a release
or threat of release requires response within hours of the lead
agency's determination that a removal action is necessary. In
classic emergency removal actions, on-site activity often lasts
less than 30 days. During classic emergencies, response personnel
may need to base their decisions on relatively limited data and act
quickly. As a result, it is often difficult to ensure an adequate
PRP response. Common examples of classic emergency removal actions
include road accidents and spills, or fencing of a contaminated
area.
Time-critical removal actions are those where, based on the
site evaluation, the lead agency determines that a removal action
is appropriate and that less than six months is available before
cleanup activities begin on-site. Examples of time-critical
removal actions include removal and transport of drums, barrels,
tanks, or other bulk containers that contain or may contain
hazardous substances to a RCRA-approved facility, or containment
of wastes until a more in-depth study of the site can be conducted.
Once site activity has been begun within six months and a site has
been categorized as time critical, it does not change category tr
non-time-critical regardless of when the response is completed.
Non-time-critical removal actions are those where, based on
the site evaluation, the lead agency determines that a removal
action is appropriate and that a. planning period of more than sxx
months is available before on-site activities must begin. For ncr.-
time-critical removals, extensive data collection and analysis is
conducted to more completely document the actual cr potential
health and environmental threat. The lead agency for non-time-
critical removals will undertake an engineering evaluaticix/cost
analysis (EE/CA) or its equivalent. EE/CAs contain evaluations cf
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possible alternative technologies, selection of the response, and1
documentation of the decision-making process. EE/CAs use a
screening process and analysis of removal options based upon such
factors as technical feasibility, institutional considerations,
reasonableness of cost, timeliness of the option with respect to
threat mitigation, environmental impacts, and the protectiveness
of the option. This information will be subject to review and
comment by the public prior to initiation of the affected removal.
Non-time-critical removal actions include activities such as
containment, treatment, disposal, or incineration of hazardous
materials, or stabilization of berms, dikes, or impoundments.
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Interim Final Guidance on Removal Action
Levels at Contaminated Drinking Water Sites
-------
f JSf* \ UNITED STATES E.'i-, IRONMEN'A :_?9O TEC HO* AGENC'
\^wl^/ . WASHir:-3TON C C. ZfMcO
OCT 6l98fT
Of
SOLID WASTE A.NO SvJeaGENC'r
MEMORANDUM
SUBJECT: Interim Final Guidance on Removal Action Levels at Contaminated
Drinking Water Sites (OSWER Dlrectiye #60.1-10)
FROM: Henry L. Longest II, 01 rector
Office of Emergency and Remedial
TO: Waste Management Division Directors. Regions I-X
Environmental Services Division Directors, Regions I, VI and VII
Attached Is the interim final guidance on removal action levels at
drinking water contamination sites. This guidance Is effective Immediately.
The EPA Office of Drinking Water (ODW) and the Agency for Toxic Substances
and Disease Registry (ATSDR) will also be developing guidance documents
related to drinking water contamination In the near future. OERR will be
working with ODW and ATSDR in an attempt to ensure a consistent approach
between the agencies.
Questions or comments regarding this guidance or appropriate removal
action levels should be directed to Jean Schumann, Emergency Response Division,
WH-548B, FTS 382-4671.
Attachment
*
cc: Jack McGraw
Tom Devlne
Gene Lucero
Ma re1 a Williams
Walt Kovallck
T1m Fields. ERD
Russ Hyer, HSCP
Steve Llngle. HSED
Art Weissman, PAS
Michael Cook, OOW
Mark Greenwood, OGC
William Farland, CAG
Superfund Branch Chiefs, Regions I-X
OHM Coordinators, Regions I-X
Mark Bashor, ATSOR
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OSWER Directive 9360.1-10
REMOVAL ACTION LEVELS FOR CONTAMINATED DRINKING WATER SITES
Introduction
The purpose of this guidance Is to establish "action levels" for providing
alternate'water supplies under Superfund removal authority at contaminated
drinking water sites. The action level Is the primary criterion that must be
met for a site to qualify for removal response. The action levels established
in this guidance must generally be satisfied before removal authority can be
used at either National Priorities List (NPL) sites or non-NPL sites.
Under the 1982 National Contingency Plan (NCP), removal actions were taken
in response to "immediate and significant" threats to human health or the
environment. The removal program used the 10-Day Health Advisory as the principal
benchmark to identify those drinking water contamination Incidents that posed
the most acute threats to human health. The November 1985 NCP broadened removal
authority by authorizing response in situations that present a "threat" to
human health or the environment. Therefore, removal actions may now be taken
in less urgent situations than under the 1982 NCP.
In response to this expansion of removal authority, the Office of Emergency
and Remedial Response (OERR) is revising removal program action levels for
contaminated drinking water sites. This guidance expands the previous policy
in a number of ways. First, the numeric action levels are now based on levels
that are protective for a lifetime exposure rather than a 10-day exposure.
Second, both carcinogenic and non-carcinogenic health effects are considered.
Third, a reduction factor is used for volatlles to account for exposure due to
inhalation. Finally, additional guidance 1s provided on the use of site-specific
factors to trigger removal actions.
The action levels established in this guidance allow a site to qualify for
removal response if either: 1} the numeric trigger Is exceeded at the tap, or
2) site-specific factors otherwise indicate that a significant health threat
exists. The guidance also discusses information sources on health threats from
drinking water contamination, factors to consider in determining the extent of
action, action levels vs. cleanup standards, prioritizing removal sites, and
obtaining exemptions to the statutory limits for alternate water supply sites.
Action Level Based on Numeric Trigger
The.numeric trigger is calculated using a model that establishes four
different action levels, depending on whether the substance 1s also a potential
human carcinogen and/or volatile. The model is explained below and summarized
in Exhibit 1. Based on this model, Exhibit 2 lists the numeric action level
for various substances that may be found in drinking water at Superfund sites.
A site may qualify for removal response if the numeric trigger for the drinking
water contaminant is exceeded at the tap of at least one residence ("residence"
includes schools, businesses, etc.). (Note that the decision to Initiate a
removal action is based on other factors as well, such as the availability of
other response mechanisms to initiate action in a timely manner.)
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OSWER Directive 9360.1-10
-2-
The first step in calculating the numeric trigger Is determining whether
the substance of concern Is also a potential human carcinogen and/or volatile.
For purposes of this guidance, a substance Is a carcinogen 1f It falls Into
categories A, 8, or C of EPA's carcinogen classification guidelines. (A sub-
stance should be considered a non-carcinogen if It Is in categories 0 or E.)
Volatile organic chemicals (VOCs) are generally of low molecular weight, high
vapor pressure, and low solubility. For purposes of this guidance, VOCs Include
those chemicals Identified as volatiles 1n the following documents: Test
Methods for Evaluating Solid Waste, Vol. 1A, SW-346, 3rd ed., November 1986
(Chapter 2); Contract Lab Program Statement of Work, October 1986 (Exhibit C);
Methods for the Determination of Organic Compounds 1n Finished Drinking Water
and Raw Source Water, September 1986 (available from Regional water program
offices); and 40 CFR Part 264, Appendix IX (analytical methods 8010 and 8240
designate volatiles).
With the substance thus classified, the second step Is to determine the
appropriate action level in accordance with the categories below:
I. Non-volatile non-carcinogens -- Action level equals the Drinking Water
Equivalent Level (DWEL).*
2. Volatile non-carcinogens — Action level equals 50 percent of the OWEL.
3. Npn-volati1e carcinogens -- Action level is determined by comparing the
DWEL to the 10"4 Lifetime Upperbound Cancer Risk Level, and choosing the
lower of the two.
•
4. Volatile carcinogens -- Action level is determined by comparing 50 percent
of the OWEL to the 10~4 Lifetime Upperbound Cancer Risk Level, and choosing
the lower of the two.
The action level for methylene chloride, for example, Is calculated as
follows. Methylene chloride is a volatile and a potential human carcinogen
(classified as a "82" under EPA guidelines). The DWEL for methylene chloride
equals 1750 ppb and the 10~4 Cancer Risk Level equals 48 ppb. The action
level is determined by comparing 50 percent of the DWEL, or 875 ppb, to the
10'* Cancer Risk Level, or 48 ppb, and choosing the lower of the two, which
is 48 ppb. If at least one residence has methylene chloride levels that exceed
48 ppb at the tap, the site may qualify for removal response.
This model will provide an action level for many of the substances commonl/
encountered 1n drinking water at Superfund sites, including many solvents.
However, OERR Is still working on establishing an appropriate action level for
certain substances 1n the two situations described below. Until action levels
are developed, most decisions regarding these substances will be made in OERR.
The modifications discussed below have been incorporated into Exhibits 1 and 2.
° The calculated action level for a substance is lower than or equal to
the Maximum Contaminant Level (MCL) established under the Safe Drinking
Water Act (SDHA)7For example, for vinyl chloride, a volatile carcinogen,
the calculated action level under this model is 1.5 ppb (1.5 ppb is tMe
10~* Cancer Risk Level, which is lower than 501 of the DWEL). However.
1.5 ppb is lower than the MCL for vinyl chloride, which 1s 2 ppb. Given
»OWEL = Reference Dose (RfD) x 70 kg
2 liters/day
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OSWER Directive 9360.1-lQ
-3-
the limited scope of the removal program, it may not be appropriate for
the removal program to trigger removal action at levels equal to or below
the MCL. Therefore, OERR is currently examining whether it would be
appropriate to establish an alternate action level for these substances
that -is above the MCL. Until an action level is established for these
substances..removal action may be initiated if contaminant levels exceed
the 10-Oay Health Advisory. However, if contaminant levels are between
the calculated action level and the 10-Oay Health Advisory, OERR will review
individual site conditions to determine if removal action should be taken.
0 The calculated action level is based on the OWEL. but the 10-Oay Health
Advisory is lower than the DUEL.For most substances, the 10-Oay Health
Advisory is higher than the OWEL. In some cases, however, the 10-day
advisory is lower than the OWEL. (This situation occurs primarily where
10-day exposure data were not available, so the 10-Oay Health Advisories
were based on other studies.) For example, the action level for barium (a
non-volatile non-carcinogen) is based on the DWEL of 1800 ppb, but the 10-
Day Health Advisory for barium is 1500 ppb. OERR is currently examining
whether it would be appropriate to use the lower 10-day advisories as the
removal action level. Until OERR determines If an alternate action level
is appropriate for these substances, removal action may be Initiated if
contaminant levels exceed the OWEL. However, if contaminant levels are
between the (lower) 10-Oay Health Advisory and the OWEL, OERR will review
individual site conditions to determine if removal action should be taken.
Action Level Based on Site-Specific Factors
A significant health threat may exist even though the numeric action level
has not been exceeded. A removal action may be initiated if the health risk at
a site has been analyzed in detail and the analysis indicates that a serious
health risk is present due to site-specific factors. Examples of such factors
include evidence that a contaminated groundwater plume is moving, contaminant
levels will likely increase (e.g., increased pumping from an aquifer anticipated
during summer months), people have been drinking contaminated water for a long
period of time, multiple contaminants are likely to result in synergistic
effects, there are sensitive members in the population at risk, etc.
With regard to a threat based on future contamination, as a general rul<>,
removal action may be warranted where it can be projected that the numeric
action level will be exceeded within 6 months. It is important to note that
this 6 month period is not related to the definition of time-critical/non-time-
critical removal actions. For example, where contaminant levels will likely
exceed the DUEL by a significant amount within 6 months, a time-critical removal
action would be appropriate. However, if contaminant levels will only exceed
the OWEL by a minimal amount within 6 months, a non-time-critical removal
action may be more appropriate. Future threat may therefore warrant either a
time-critical or non-time-critical removal action.
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OSWER Directive 9360.1-10
-4-
When conditions such as those described above are present, the site may
qualify for removal action even though a numeric indicator has not been
exceeded. Decisions will be made on a case-by-case basis. OERR concurrence
must be obtained before approving Action Memoranda for contaminated drinking
water sites where the removal action decision is based solely on site-specific
factors, even where site cost or time projections do not exceed the statutory
limits on removal actions. However, If an emergency exists based on site-
specific factors, action may be initiated Immediately and OERR should be
contacted as soon as possible.
Information Sources
DUELS, as well as RfDs and other relevant standards and advisories, are
available to the Regions through the Integrated Risk Information System (IRIS).
IRIS can be accessed on-line through E-mail; type In "IRIS" at the prompt
rather than "mail." The EPA Office of Drinking Water has also established a
Safe Drinking Water Hotline, which can provide Information about relevant
standards and criteria, and treatment techniques for contaminated drinking
water. The Hotline telephone number is 800-426-4791 (1n the Washington D.C.
area, 382-5533).
Additional advice and information on health assessments at drinking water
contamination sites may be obtained from the Agency for Toxic Substances and
Disease Registry (ATSOR) and the Superfund Public Health Evaluation Manual (OSWER
Directive #9285.4-01). ATSDR may be particularly helpful 1n providing advice
on threats posed by site-specific factors.
OERR should be contacted if a substance of concern does not have a OWEI,
RfD, and/or cancer risk level.
Determin-ing the Extent of Action
Once it has been determined that a site qualifies for removal response
based on a numeric trigger or site-specific factors, the Region must determine
how many residences (including businesses, schools, etc.) will receive alternate
water supplies. First, the area of Impact should be estimated (both extent
and magnitude of the threat) by considering factors such as the hydrogeology
of the site, plume movement, and the likelihood of contaminant levels increasing.
For sites where removal action is warranted because the numeric trigger has been
exceeded at certain residences, the area of impact may be defined to include
neighboring residences which are at risk, but do not exceed the numeric trigger.
After the area of impact is defined, the number of residences to be
provided with alternate water supplies must be determined by considering cost
vs. benefits received, the statutory limits on removal actions, and the avail-
ability of other response mechanisms. For example, response to widespread
low-level contamination may be too extensive for removal action, and therefore,
may be addressed more appropriately by the remedial program. In another case,
a contaminated aquifer may affect a public water supply system and private
wells, but Superfund resources may only be needed to address the private wells.
Determining the appropriate extent of action therefore involves analysis
of both the area of impact and programmatic factors.
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OSWER Directive 9360.1-10
.5.
Action levels vs. Cleanup Standards
The numeric action levels established In this guidance are not Intended to
be used as cTeanup standards. The MCL, if available, will generally be the
appropriate cleanup standard. (For guidance on the use of MCLs and MCLGs as
cleanup standards, see "Interim Guidance on Compliance with Applicable or
Relevant and Appropriate Requirements," July 9, 1987, OSWER Directive 9234.0-05.
Final guidance will be Issued in the CERCLA Compliance with ARARs Manual.)
This means that for any residence provided with an alternate water supply, the
goal will generally be to meet MCLs. For example, If carbon filter units
will be provided to treat drinking water contaminated with trlchloroethylene
(TCE), treated water should achieve 5 ppb TCE, the MCL.
Prioritizing Removal Sites
Sites may qualify for removal action under either the numeric Indicator or
site-specific factor approaches. For the purpose of prioritizing those sites
that qualify for removal action, response should be initiated as soon as possible
if contaminant levels exceed the 10-Oay Health Advisory or site-specific factors
otherwise indicate that an emergency exists.
Exemption to the Statutory Limits
To obtain an exemption to the $2 million/12 month limits on removal actions
based on a continuing emergency, it will generally not be adequate to show that
contaminant levels exceed the numeric action level by some minimal amount. An i
exemption may be justified if contaminant levels exceed the 10-Oay Health
Advisory, significantly exceed the numeric action level, or an emergency exists
based on site-specific factors. A finding that contaminant levels exceed the
numeric action level by a minimal amount may be appropriate, however. In
"non-emergency" situations where an exemption 1s based on the new consistency
waiver.
Summary of Policy
A contaminated drinking water site may qualify for removal response if:
1) the numeric action level (based pn the OWEL and/or the 10~4 Lifetime
Upperbound Cancer Risk Level) is exceeded, or 2) site-specific factors
otherwise Indicate the presence of a serious health threat. In prioritizing
those sites that qualify for response under this model, Regions should
give priority to sites where contaminant levels exceed the 10-Oay Health
Advisory or site-specific factors otherwise indicate that an emergency
exists.
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OSWER Directive 9360.1-10
Exhibit* I: Summary of Action Level Decision Model
^"
Do contaminant levels exceed the NUMERIC action level?
Is the substance a volatile and/or potential human carcinogen?
* Non-volatile non-carcinogens -- Action level equals the OWEL.
0 Volatile non-carcinogens -- Action level equals 501 of the DWEL.
0 Non-volatile carcinogens — Action level Is determined by comparing the
DWEL to the 10"4 Lifetime Upperbound Cancer Risk Level, and choosing the
lower of the two.
0 Volatile carcinogens — Action level Is determined by comparing 50% of the
OWEL to the 10"* Lifetime Upperbound Cancer Risk Level, and choosing the
lower of the two.
Do either of the two modifications to the numeric action level apply?
Is the numeric action level lower than or equal to the MCL, 1f available? If yes:
0 If contaminant levels are between the numeric action level and the 10-Day
Health Advisory, contact OERR to detemlne appropriate action.
0 If contaminant levels exceed the 10-Day Health Advisory, action may be taken
1f the site otherwise qualifies for removal response.
If the action level Is based on the DWEL, is the 10-Day Health Advisory lower
than the DWEL? If yes:
0 If contaminant levels are between the (lower) 10-Day Health Advisory and the
OWEL, contact OERR to determine appropriate action.
8 If contaminant levels exceed the DWEL, action may be taken If the site
otherwise qualifies for removal response.
If contaminant levels do not exceed the numeric trigger, can the site qualify for
removal response based on SITE-SPECIFIC FACTORS?
A site can qualify for removal response if the health risk at a site has been
analyzed In detail and the analysis indicates that a serious health risk is present
due to site-specific factors.
0 ATSDR may be particularly helpful in providing advice on health risk due to
site-specific factors.
0 OERR concurrence must be obtained before approving Action Memoranda based on
site-specific factors, even where the site will not exceed the statutory
.limits on removal actions.
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UMMt .
C.hwnlcal
Alachlor
Barium
Benzene
Cadmium
Carbofuran
Carbon tetrachlorlde
Chlordane
Chlorobenzene
Chromium (total)
Cyanide
o-Dlchlorobenzene
p-Olchlorobenzene
1,2-01chloroethane
1,1-Dlchloroethylene
Cls-1,2-Oichloroethylene
Trans-1.2-01chloroethylene
DicMor
. ch\or
REMOVAL MIJMEK1 .ION LEVELS
(Oil CONTAMINATED DRINKING WATER SITES
(UO/L)
lene
hylene
ylene
Volatile
(Y/N)
N
N
Y
N
N
Y
N
Y
N
N
Y
Y
Y
Y
Y
Y
Y
EPA
Carcinogen
Group*
D2
0
A
0
E
B2
B2
D
0
0
D
C
B2
C
D
D
B2
MCL
None
1000
5
10
None
5
None
None
50
None
None .
75 -
5
7
None
None
10- Day
. HA
100
1500°
235
43C
50C
160
63
4300°
1400
220C
8930°
1G700C
740C
1000°
1000C
1430«
None 1SOO
DU£Lb
350
1800
NA
17
17fi
24
1.6
1505
168
770
3115
3500
None
350
350
350
1750
10-4
Cancer Risk
Level
15
NA
120
NA
NA
27
2.7
NA
NA
NA
NA
175
38
None
NA
NA
J
Reooval
i Action
Level
•f. fP*'
15
i
1800d
120
17
17 5d
12
1.6
753
168
770d
1558
175
38
175
175
175
48
-------
Exhibit 7*
REMOVAL NUMERI.. 7T.10M LEVELS
FOR CONTAMINATED DRINKING HATER SITES
(ug/L)
4/87
Chemical
Endrln
Ethyl benzene
Heptachlor
Lindane
Mercury (inorganic)
Methoxychlor
Methyl ethyl ketone (MEK)
Nickel
Pentachl orophenol ( PCP )
Styrene
Tetrachloroethylene (PCE)
Toulene
Toxaphene
1 ,1 ,1-Trichloroethane
Trlchloroethylene
Vinyl chloride
Xy1«n0* (total)
Volatile
(Y/N)
N
Y
N
N
Ne
N
Y
N
Y
Y
Y
Y
N
Y
Y
Y
Y
EPA
Carcinogen
Group*
E
0
R2
C
. D
0
D
D
D
C
B2/C
D
82
I)
R2
A
n
MCL
0.2
None
None
4
2
100
None
None
None
None
None
None
5
200
5
2
None
10- Day
HA
5
3200C
10
1200
1.6C
2000
7500C
1000
300C
200QC
2000
3460C
40
35000C
None
2600
7800c
DWELb
1.6
3395
17
10
5.5
1750
864
350
1050
7000
500
12100
None
1000
257
None
2157
io-4
Cancer Risk
Level
NA
NA
7.6
None
NA
NA
NA
NA
NA
None
66
NA
3.1
NA
280
1.5
NA
Reaoval
* Action
Level
.1.6
1698d
7.6
10 '
5.5*
1750
432
350
525d
3500d
66
6050d
409
500
128
1300n
1076
-------
hlbU 2
REMOVAL NUMERIC All ION LEVELS
FOR CONTAMINATED DRINKING WATER SITES
(ug/L)
9/b/
Chemical
Volatile
(Y/N)
EPA
Carcinogen
Group*
MCL
10- Day
HA
OUELb
10-4
Cancer Risk
Level
ReMval
• Action
L«LV«1
a Carcinogen group designation Is from EPA carcinogen classification guidelines for effects from Ingestlon.
b DUEL * RfO x 70 k
21 /
g .
day
(Note that the DUEL 1n health advisory documents produced by EPA's Office of Drinking Uater
may be slightly different due to rounding.)
c Because no suitable studies of appropriate duration were available, these 10-Day Health Advisories were based on
Health Advisories of greater or lesser duration, e.g., 1-Day, Longer-term, and Lifetime Health Advisories.
d Removal action level 1s an Interim value. OERR 1s examining whether 1t would be appropriate to use the lower 10-Day
Health Advisory (501 for volatlles) as the action level. Until that time. If contaminant levels levels exceed the
action level shown In the table, removal action may be taken. If contaminant levels exceed the 10-day advisory
(501 for volatlles). but not the DUEL (501 for volatlles), consult OERR.
e Not soluble In water.
f Removal action may be Initiated If mercury levels exceed the DUEL of 5.5 ug/L. If mercury levels exceed the 10-day
advisory of 1.6 ug/L. but not 5.5 ug/L, consult OERR.
9 Removal action may be Initiated Immediately If toxaphene levels exceed the 10-Day Health Advisory of 40 ug/L.
If toxaphene levels exceed the 10~4 Cancer Risk Level of 3.1 ug/L, but not 40 ug/L, consult OERR.
h Removal action may be Initiated Immediately If vinyl chloride levels exceed 1300 ug/L, which Is 50% of the 10-Day
Health Advisory, if vinyl chloride levels exceed the 10~* Cancer Risk Level of 1.5 ug/1 , but not 1300 ug/L.
consult OERR.
NA » Not appropriate.
-------
Information on Drinking
Water Action Levels
-------
? 5LT|
1 ^SZ^jr
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
APR I 9 :COC
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Information on Drinking Water Ac
FROM: Timothy Fields, Jr., Director
Emergency Response Division
TO: Superfund Branch Chiefs, Regions I-X
OHM Coordinators, Regions I-X
The purpose of this memorandum 1s to to provide you with updated
Information on removal program drinking water action levels, as described
In OSWER Directive 9360.1-10. The OSWER Directive will eventually be amended
to Include this Information, but 1t Is being sent to you now to ensure that
you receive the data as soon as possible. It 1s Important to note that the
drinking water action level 1s only one of several factors, to consider In
deciding whether a removal action Is appropriate.
0 D1chloromethane - Change the 10~4 Cancer Risk Level to 480 ppb (not 48),
and the removal action level to 480 ppb.
0 Alachlor - Change the 10~4 Cancer Risk Level to 44 ppb (not 15), and the
removal action level to 44 ppb.
0 Arsenic - ERD has had several requests about arsenic action levels. At
the moment, there Is considerable controversy within EPA and the scientific
community about the cardnogenlcity of arsenic. For now, rather than
establishing an official action level, the removal program may consider
taking action when arsenic levels exceed 50 ppb (the current MCL), but the
Regions should always consult Headquarters for arsenic sites. (You must
also consider whether the arsenic is naturally occurring, since SARA
prohibits Superfund response to such releases unless it is an emergency
and no .one.4tSie.ran- respond.)
0 DBCP - The IO-4 Cancer Risk Level for~DBCP Is 2.5 ppb and the 10-Day Health
Advisory is 50 ppb. The Agency is currently working on a proposed MCL for
DBCP. The removal action level at this time will be 2.5 ppb, based on tfre
cancer risk value, but 1t 1s important to keep In mind that Superfund should
not be used to respond to releases that result from the lawful application
of pesticides (unless an emergency exists). Many farming areas may show
elevated levels of OBCP, but this may have been caused by normal use of the
pesticide. Two Items related to this are attached: 1) a July 1985 neao
that addresses releases from lawfully applied pesticides and 2) a recent
memo written by an OSC 1n Region 9, after consultation with Headquarters.
regarding DBCP contamination.
-------
-2-
chloride - Many OSCs have been concerned because the action level
guidance provides that the Regions should not Inclement action for vinyl
chloride unless concentrations exceed 1300 ppb (50% of the 10-Day Health
Advisory). This does not mean, however, that alternate water supplies
cannot be provided at lower levels for vinyl chloride. To clarify the
current policy for vinyl chloride, the action level for Immediate Regional
response Is 1300 ppb, but Headquarters may authorize action at lower levels.
Specifically, Headquarters will consider response 1f levels exceed 2 ppb,
the MCL. In determining whether action 1s appropriate. Headquarters will
consider factors such as the source of the contamination, the scope of the
response needed, and the availability of other response mechanisms.
Headquarters consultation is required for these actions because the action
level calculated under the general model (which would equal 1.5 ppb, the
10-* Cancer Risk Level) is lower than the MCL of 2 ppb. The removal
program needs to be careful about setting precedents for taking actions at
or below the NCL, because any public water supply system in the country
could then potentially qualify for removal response If contaminant
concentrations exceeded the MCL. In general, public water supply systems
are responsible for ensuring that their systems comply with MCLs.
• Chloroform - The DUEL is 350 ppb, the KT4 Cancer Risk Level Is 600 ppb.
ami the removal action level Is 175 ppb (501 of the OWED.
0 List of removal alternate water supply sites - ERO recently sent the Regions
a table prepared by TAT listing sites where the removal program has provided
alternate water supplies In the past. Please change the following Informa-
tion on the Region 5 Main Street Well field site: the number of residences
affected 1s 301, not 40,000, and the methods used Include bottled water,
carbon filtration, and water main connection In addition to air stripping.
* Risk addltlvlty - At the recent "Removal Program Managers" meeting In
Washington, O.C., ERO was requested to send the Regions Information about
adding risks from multiple chemicals In drinking water. In trying to
collect this Information from EPA sources, we found that there was some
Inconsistency In risk addltlvlty policy within the Agency. The Superfund
Toxics Integration Branch (TIB) will address this Issue when they revise
the Superfumd Public Health Evaluation Manual this year. In the Interim,
risks from multiple contaminants In the drinking water should not be
routinely smmmerf In establishing action levels. However, If the Region Is
|xart1
-------
-3-
cc: Mark McCUnnahan, ATSOR
Hans Crump
Paul Nadeau
Oave Bennett
Jdhn-Rtley
vBruce Engelbert
JoiTaFornara
-------
Policy on Flood Plains and
Wetlands Assessment
-------
03/19/87 United SUM* Envronmenui Protection Agency
Waenmyton, O.C. 20460
EPA OSWER Directive Initiation Request
1. Olrvetftfe Numow
9280.0-02
2, Originator Jrrtormatton
Hewno of Contact Pwon
SMITH
Mai Coda
Office
OERR/PAS
Telephone Number
382-3300
3.71tla
POLICY OH FLOOD PLAINS AND WETLANDS ASSESSMENTS
4. Summery of Dtrecttwe (Irwude brief etatement of purpoae)
Discusses »ituation» that raguir* preparation of a
flood plains or wetlands assessment, and the
factors which should be considered in preparing an
assessment for response actions undertaken
pursuant to section 104 or 106 of CERCLA.
(8/85, 12 pp)
9280.0-1.
Supplements
5. Keyword*
SUPERFUND, CERCLA, REMEDIAL PROGRAM, FLOOD PLAINS MANAGEMENT
b. DOM « Supplement Previous D»recUvee<»)?
?! | yee | *j No What directive (number, title)
L I No What dlracttva (number, HUe)
9280.0-01
7.
I - JA-
SlpwdbyAA/DAA
j | B -
Signed by Offle* U
| | C-
For Revtow • Cornroenl
Thie Request I
8. Signature of Lead Oflto* DtaeUvea Coordinator
Data
9. Name and TWe of Approving Offleail
HEDEMAN/LUCERO
Data
08/06/85
OSWER OSWER OSWER
DIRECTIVE DIRECTIVE
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
! O*
SOLID WASTt AMD I
MEMORANDUM OSWER Directive 9280.0-02|
~~~~~~~~""~"~ !
SUBJECT: Policy on Floodplains and Wetland Assessments
for CERCLA Actions
FROM: William N. Hedeman, Jr.,
of /Erne-roe ncy and
ne Luceror Diector
Office of Waste Programs Enforcement
TO: Toxic and Waste Management Division Directors
Regions I-X
Response to releases of hazardous substances is often
affected by floodplain and wetland issues. Under this policy
Superfund actions must meet the substantive requirements of
the Floodplain Management Executive Order (E.O. 11988) , and
the Protection of Wetlands Executive Order (E.O. 11990) (see
attached) ,- and Appendix A of 40 CFR Part 6, entitled Statement
of Procedures on Floodplain Management and Wetland Protection.
The purpose of Appendix A of 40 CFR Part 6 is to set forth EPA's
policy and guidance for carrying out the provisions of Executive
Orders 11988 and 11990. This memo discusses situations that
require preparation of .a floodplains or wetlands assessment,
and the factors which should be considered in preparing an
assessment, for response actions undertaken pursuant to section
104 or 106 of CERCLA.
For removal actions, the on-sccne coordinator (OSC) must
consider, to the extent practicable, taking into account the
exigencies of the situation, the effect the response action
will have on floodplains and wetlands. For remedial actions, a
floodplain/wetlands assessment must be incorporated into the
analysis conducted during the planning of the remedial action.
I. BACKGROUND
A. Floodplains
Floodplains are relatively flat areas or lowlands adjoining
the channel of a river, stream or water course which have been or
may be covered by floodwacer. A flood is a general and temporary
condition of partial or complete inundation of normally dry land
areas from the overflow of inland and/or tidal waters and/or
-------
OSWER Directive 92SC.G-02
-2-
th« unusual and rapid accumulation or runoff of surface waters
from any source. A reference to a floodplain should be
accompanied by a modifier indicating the level of flooding*
e.g., 100-year floodplain (one percent chance of flooding in
any year).
Executive Order 11988 - Floodplain Management
Executive Order 11988 requires Federal agencies carrying
out their responsibilities to take action to reduce the risk
of flood loss, to minimize the impact of floods on human safety,
health and welfare, and to restore and preserve the natural
and beneficial values served by floodplains. To do this.
Federal agencies must evaluate the potential effects of any
actions they may take in a floodplain to ensure that their
planning programs and budget requests reflect consideration
of flood hazards and floodplain management, including the
restoration and preservation of such land areas as natural
undeveloped floodplains. This order emphasizes the importance
of evaluating alternatives to avoid effects and incompatible
development in the floodplains, of minimizing the potential
harm to floodplains if the only practicable alternative
requires siting an action in a floodplain and providing early
and adequate opportunities for public review of plans and
proposals involving actions in floodplains.
B. Wetlands
Wetlands are land areas which, because of their frequent
inundation by surface or ground water, can support vegetative
or aquatic life that requires saturated soil conditions.
Wetlands generally include but are not limited to swamps,
marshes, bogs and similar areas such as sloughs, pot holes,
wet meadows, river overflows, mud flats and natural ponds.
Executive Order 11990 - Protection of Wetlands
Executive Order 11990 requires Federal agencies in
carrying out their responsibilities to take action to minimize
the destruction, loss or degradation of wetlands, and to
preserve and enhance the natural and beneficial values of
wetlands. The order emphas-izes the importance of avoiding
undertaking new construction located in wetlands unless there
is no practicable alternative to that construction, minimizing
the harm to wetlands if the only practicable alternative
requires construction in the wetland, and providing early and
adequate opportunities for public review of plans and proposals
involving new construction in wetlands.
C. Statement of Procedures on Floodplain Management- and
Wetlands Protection - Appendix A to 40 CFR Part 6
EPA has promulgated regulations implementing procedures
on the National Environmental Policy Act (NEPA) at 40 CFR
Part 6. Appendix A of Part 6 (Appendix A) deals with procedures
-------
CSWER Directive 9280.0-02
-3-
on Floodplain Management and Wetland Protection. The purpose
of Appendix A is to set forth Agency policy and guidance for
carrying out the provisions of Executive Orders 11988 and
11990.
^T-; Appendix A provides that it is the intent of these
: Executive orders that, wherever possible. Federal agencies
implement the floodpiains/wetlands requirements through
- existing procedures, such as those internal procedures
established to implement NEPA. In those instances where the
environmental impacts of a proposed action are not significant
enough to require an environmental impact statement (EZS)
pursuant to section 102(2)(C) of NEPA, or where programs are
not subject to the requirements of NEPA,. alternative but
equivalent floodplain/wetlands evaluation- and public comment
and notice procedures must be established. Furthermore,
Appendix A prescribes the requirements for floodplain/wetlands
review of proposed EPA actions.
II. POLICY
A. Removal Actions
Removal actions are exempt from compliance with section
102(2)(C) of NEPA because there is a fundamental conflict in
statutory purpose between EIS requirements and EPA's removal
authority. This conflict arises from the fact that it would
be virtually impossible for EPA to follow the lengthy EIS
process and at the same time expeditiously undertake removal
actions.
1. Floodplain/Wetland Assessment
However, a floodplains/wetlands evaluation required by
Appendix A would not be as lengthy as the EIS process. There-
fore, the OSC or lead Agency should attempt to incorporate a
floodplains/wetlands assessment into the preliminary assess-
ment for the removal action. The floodplains/wetlands assess-
ment must consider the following: whether or not the action
will be located in or affect a floodpl a in or wetland; the
impact of the action on the floodplain or wetland; the altern-
atives available; and measures to minimize potential harm to
the floodplain or wetland if there is no -practicable alternative
to locating in or affecting the flood pi a in or wetland [for a mor«
detailed explanation of these factors see Section III, Remedial
Actions, of this policy}. However, because removal actions
often involve situations requiring expeditious action to
protect public health, welfare or the environment, it may
not always be feasible to perform a floodplains/wetlands
assessment. In those circumstances where a floodplain/wetland
assessment cannot be performed, the OSC report or other
-------
OSWER Directive 9280.0-02
-4-
docuaents should specify the reasons. At the OSC's discretion,
considering the exigencies of the situation, the OSC should
consult with the Regional 404 Staff where wetlands/floodplains
are involved or suspected to be involved.
For all lead agency removal actions where a floodplain/wetland
assessment is performed and is proposed to be in or affecting a
floodplain/wetland the OSC shall document the decision in the
OSC report. The decision shall be accompanied by a Statement
of Findings, not to exceed three pages that includes (i) the
reasons why the proposed action must be located in or affects
the flobdplain/wetlands; (ii) a description of significant
facts considered in making the decision to locate in or to
affect the floodplain or wetland including alternative sites
and actions; (iii) a statement indicating whether the proposed
action conforms to applicable State or local floodplain/wetland
protection standards; (iv) a description of the steps taken
to design or modify the proposed action to minimize potential
harm to or within the floodplain or wetland; and (v) a statement
indicating how the proposed action affects the natural or
beneficial values of the floodplain or wetland.
2. Opportunity for Citizen Comment
Appendix A has two public notice requirements. One is
public notice when it is apparent that a proposed or potential
agency action is likely to impact a floodplain or wetland and
the other is public notice of the selected decision.
Because of the expeditious nature of removal actions extend-
ing 45 days or less, no formal community relations plan must be
developed. Instead, a spokesperson will be designated by the
lead agency to inform the community of actions being taken,
to respond to inquiries and to provide information concerning
the release. If the exigencies of the situation permit the
performance of a floodplain/wetland assessment, the assessment
must be included in the spokesperson's presentation. This
will provide early public notice as required by Appendix A.
The OSC report, which contains the selected decision or the
reasons why a floodplain/wetland assessment cannot be performed,
must also be made available to the public. The OSC report will
provide public notice of the selected decision as required by
Appendix A.
If the reouired removal action extends over 45 days, a formal
community relations plan must be developed. If the exigencies
of the situation allow for a floodplain/wetland assessment,
this assessment must be made available for a three week puDlic
comment period. This will provide early public notice and an
opportunity for participation in the decisionmaking process
as required by Appendix A.
-------
OSWE?. Directive 9280.0-02
- 5 -
If it is known that a floodpla in/wetland assessment will be
conducted at the time of the preparation of the Community Relations
Plan than the public comment period must be noted in the plan.
The OSC report* which contains the selected decision or the
reasons why a floodpiain/wetland assessment cannot be done, is
" also required for the "longer" removals and must be made available
to the public. This will provide public notice of the selected
decision as required by Appendix A.
B. Remedial Actions
An EIS is unnecessary for remedial actions provided in that
EPA meets the standards for a functional equivalent exception to
the EIS requirements of section 102(2)(C) of NEPA. To comply
with the functional eauivalent exception, the agency Bust have
expertise in environmental matters and meet the following criteria.
First, the agency's authorizing statute must provide substantive
and procedural standards that ensure full and adequate consideration
of environmental issues. Second, the agency must afford an
opportunity for public participation in the evaluation of environ-
mental factors prior to arriving at a final decision. • '
1. Consideration of Environmental Issues
Remedial actions satisfy the first criterion for a functional
equivalent exception because of the mandate for environmental
assessment contained in section 104 of CERCLA and the procedural
safe-guards developed by EPA for the remedial planning process.
The language in section 104, that directs that remedial actions
be necessary to protect public health, welfare, and the environment,
establishes a standard mandating consideration of environmental
effects. Moreover, the procedures set forth in the National
Contingency Plan (NCP) establish a process for conducting an
analysis during the planning of remedial actions that is similar
in content to the evaluation underlying an EIS. This analysis
is contained in the remedial investigation/feasibility study
(RI/FS). Therefore, for a remedial action to comply with the
alternative but equivalent floodplain/wetland evaluation
contained in Appendix A of 40 CFR Part 6, a floodpiain/wetlands
assessment must be incorporated into the analysis conducted
during the planning of remedial actions which is established
by the NCP.
T
During the scoping of remedial response actions, the Remedial
Project Manager (RPM) or the lead Agency in conjunction with
Regional 404 staff, should identify any floodolain or wetlands
located within the site area or that could be affected by the
response action. If the area is predominantly privately owned,
the RPM or the lead agency shall consult with the Federal Insurance
Administration of the Federal Emergency Management Agency which
.has two maps that will be useful in identifying floodplains.
The Flood Insurance Rate Map shows the boundaries and elevations
of the 100 and 500 years floodplains. The other map. Flood
Hazard Boundary Map, shows the appropriate area of the 100 years
-------
OSWER Directive 928C.G-C2
-6-
zone. "A copy.of these maps can b« obtained by calling
l-«00-638-«620% For areas predominately State or Federally
owned, consult with the controlling Federal or State agency.
Maps are available for some wetland areas from the Fish and
wildlife Service (National Wetlands Inventory Naps) or from
local and State planning agencies. Also, the Regional 404
staff has access to the most up to date wetlands area
information.
If there are no floodplains/wetlands located within the
site area or that could be affected by a response action, the
feasibility study should so state, and the response action may
proceed without further consideration of the procedures set
forth below. However, if the site is located within a flood-
plain/wetland or if the proposed remedial action would affect
a floodplain/wetland, the RPM or the lead agency must conduct
a floodplain/wetland assessment which will be integrated into
the feasibility study. In the RPM's discretion, the RPM should
consult with the Regional 404 staff in cases that require a
floodplains/wetlands assessment. Floodplain/Wetland assessments
shall consist of a description of the proposed action, a discussion
of its effect on the floodplain/wetlands, a description of
the alternatives considered and their effects on the floodplains
and wetlands, and measures to minimize potential harm to the
floodplain/ wetland if there is no practicable alternative
to locating in or affecting floodplain/wetlands.
a. Floodplain Assessment Of Alternatives
In assessing the alternatives and their effects on the
floodplain and floodplain protection, the RPN or lead apency
should consider such factors as environmental effects, community
welfare, cost and technology. All possible alternatives must
be considered, including the no action alternative. If one
or more of the alternatives will be located in a floodplain,
those alternatives may not be selected unless a determination
is made that no practicable alternatives exists outside the
floodplain.
If no practicable alternatives exist outside the floodplain,
and the RPM or lead agency has determined or proposes to allow a
remedial action to be located in a floodplain, then the RPM or
lead agency shall act to minimize potential harm or avoid adverse
effects to the floodplain. This includes acting to restore and
preserve the natural and beneficial values of floodplains. The
benefits of preserving floodplains in their natural or relatively
undisturbed state include not only reduction of flood hazards,
but maintenance of water Quality standards, replenishment of
ground water, soil conservation, the fostering of fish, wildlife
and plant resources and the provision of recreational areas.
The following are possible methods for minimizing potential
ham to floodplains. This list, however, does not preclude the
RPM or lead agency from using other measures that minimize
potential r.ara or avoid adverse effects to floodplains.
-------
OSWER Cirec-ive 9280.0-02
1. Use minimum grading requirements.
2. Return the site to natural contours.
3. Maintain floodplain vegetation to reduce sedimentation.
4. Regulate methods used for grading, filling, soil removal
and replacement to reduce sedimentation.
5. Require topsoil protection program.
6. Raise the site above the floodplain.
7. Construct new structures or facilities in floodplains in
accordance with accepted floodoroofing and other flood
protection measures and elevate structures above the base
flood level rather than filling inland, wherever practicable.
b. Wetland Assessment Of Alternatives
In assessing the alternatives and their effects on wetlands,
the RPH or lead agency in conjunction with the Regional 404 staff,
should consider such factors as environmental effects, community
welfare, cost and technology. All possible alternatives must be
considered, including the no action alternative If one or more of
the alternatives will be located in a wetland, those alternatives
may not be selected unless a determination is made that no
practicable alternative exists outside the wetlands.
If no practicable alternative exists outside the wetlands*
and the RPM or lead agency has determined or proposes to allow a
remedial action to be located in a wetlands, then the RPH or
lead agency shall act to minimize potential harm or to avoid
adverse effects to the wetlands. This includes action to allow
restoration and preservation of the natural and beneficial
values of the wetlands. The benefits of preserving wetlands
in their natural or relatively undisturbed state include the
control of flood and storm hazards, maintenance of water
quality standards and water supply, maintenance of natural
systems, natural pollution abatement, conservation and long
term productivity of existing flora and fauna, species and
habitat diversity and stability, hydrologic utility, fish,
wildlife, timber and food resources, and other uses of wetlands
in the public interest including recreational, scientific
and cultural uses. All impacts caused by an action occurring
in a wetland must be evaluated and mitigated according to the
EPA mitigation policy (under authority of the Clean Water Act
section 404) in effect at the time of the proposed action,
including the effects on the wetlands natural or beneficial
value.
C. Documentation of Decision
For all lead agency response actions proposed to be in or
affecting a floodplain/wetland the RPM or lead agency, shall
document their decision .in the Record of Decision (ROD). The
decision shall be accompanied by a Statement of Findings which
may be included in the ROD support document or attached as a
separate appendix. This statement will not exceed three pages
and will include: (i) The reasons why the proposed action must be
located in or affect the floodplain or wetlands; (ii) a description
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OSWER Directive 92SC.C-C2
-8-
o£ significant facts considered in making the decision to
locate'in or affect the floodplain or wetlands including
alternative sites and actions; (iii) a statement indicating
whether the proposed action conforms to applicable State or
local floodplain/wetland protection standards; (iv) a description
of the steps taken to design or modify the proposed act to
minimize potential harm to or within the floodplain or wetlands;
and (v) a statement indicating how the proposed action affects
the natural or beneficial values of the floodplain or wetlands.
2. Opportunity for Response to Citizen Concerns
Remedial actions satisfy the second criterion for a functional
equivalent exception because current Agency procedures for public
comment on remedial actions and the proposed amendments to the
NCP afford the public an ample opportunity for participation in
the evaluation of environmental factors prior to arriving at a
final decision. The proposed amendments to the NCP and the
current Superfund Community Relations Policy provide for a minimum
21-day comment period on the feasibility study which outlines
alternative remedial measures prior to selection of the final' *
remedial response. This public involvement in the remedial
planning process would enable remedial actions to meet the
public participation requirement for the functional equivalent
exception to NCPA.
Appendix A, however, appears to require two further public
notice requirements. One is any early public notice when it is
apparent that a proposed or potential agency action is likely to
impact a floodplain or wetlands and the other is public notice of
the selected decision.
Current Agency policy suggests that a fact sheet summarizing
the feasibility study response alternatives and other issues, be
provided to the public 2 weeks prior to the minimum 3 week public
comment period for the feasibility study. The fact sheet will
include a statement explaining whether a proposed or potential
remedial action is likely to impact a floodplain or wetlands.
This vill provide early public notice as required by Appendix A.
Concerning the public-notice of a selected decision, the
Agency suggests that a public notice and updated fact sheet
summarizing the ROD be provided to the public. In addition, when
the ROD is signed, it becomes a public document. The public
notice, fact sheet and the availability of the signed ROD
in the information repositories will provide public notice of
the selected decision as required by Appendix A. The updated
fact sneet will contain the alternative selected, any effects
the response will have on floodpldin/wetlands, and the State-
ment of Findings described in the Documentation of Decision
Section aDove.
Ir. addition, tne Agency suggests that public meetings and
other community relations activities be held as specified in the
conanur i ty relations plan.
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CSWSR Dir-ciiv« 9280.0-C2
- 9 -
D. Summary
1. Removal Actions
For removal actions, EPA's policy is to pursue actions
that will meet applicable or relevant standards, and criteria of
Che other Federal environmental laws that deal with floodplains/
wetlands to the maximum extent practicable, considering the
exigencies of the situation.
2. Remedial Actions
For remedial actions, EPA's policy is to pursue remedies
that attain or exceed applicable and relevant standards of other
Federal environmental laws that deal with floodplains/wetlands,
unless specific circumstances exist as referenced in section
300.68(i)(5) of the NCP. CERCLA procedural and administrative
requirements will be modified to provide safeguards similar
to those provided under other laws. Applications for and
receipt of permits is not reauired for on-site response
actions taken under the Fund-financed or enforcement authorities
of CERCLA (i.e.. Clean Water Act 404 permits are not required).*
III. COMPLIANCE WITH OTHER FLOODPLAIN/WETLAND LAWS
The Agency has concluded that cleanups pursuant to sections
104 and 106 of CERCLA should comply with other Federal environ-
mental standards, as a matter of policy, but not as a matter of
law, except in a limited set of circumstances. For example.
Section 10 of the Rivers and Harbors Act of 1899 and section
404 of the Clean Water Act apply to dredge and fill activities
and must be complied with except in very limited circumstances
such as fund balancing. (See "CERCLA Compliance with other
Environmental Statutes" SO FR 5928). However, permits are
not required for these actions. This policy has also been
proposed in amendments to the NCP (50 FR 5862). In addition.
Federal public health and environmental criteria and advisories
and State standards shall be considered, with appropriate
adjustment, in determining the appropriate response action.
Therefore, the Agency should also consider State and local
floodplain/wetland protection standards and other Federal
guidance. If the Agency does not use applicable State and
local standards, the reason why should be documented in the
Record of Decision or the Statement of Fi'ndings prepared by
the OSC.
IV. IMPLEMENTATION
This policy will apply to all removals and remedial
investigations and feasibility studies that are initiated
after August 1, 1985.
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GERCLA Compliance with Other
Environmental Statutes
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xvEPA
United States
Environmental Protection
Agency
Office ol
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 9234.0-02
TITLE: CERCLA Cbrrpliance with Other
Environmental Statutes
APPROVAL DATE: October 2, 1985
EFFECTIVE DATE: October 2, 1985
ORIGINATING OFFICE: OERR/PAS
FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OS WER OS WER OS WER
(E DIRECTIVE DIRECTIVE D
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. Z0460
OCT '- 2 1985
MEMORANDUM
SOLID WASTE ANO ='
OSWER DIKECTIVE 9234.Q-2
SUBJECT: CERCLA Compliance With Other Environmental Statutes
FROM: xWinston Porter
ssistant Administrator
TO: Regional Administrator
Regions l-X
This memorandum sets forth the Environmental Protection
Agency (EPA) policy on the applicability of the standards,
criteria, advisories, and guidance of other State and Federal
environmental and public health statutes to actions taken
pursuant to sections 104 and 106 of the Comprehensive Environ-
mental Response, Compensation, and Liability Act of 1980
(CERCLA). This policy addresses considerations for on-site
and off-site actions taken under CERCLA.
I. Discussion
The National Oil and Hazardous Substances Pollution
Contingency Plan (NCP) establishes the process for determining
appropriate removal and/or remedial actions at Superfund
sites. In the course of this process, EPA will give primary
consideration to the selection of those response actions that
are effective in preventing or, where prevention is not
practicable, minimizing the release of hazardous substances
so that they do not migrate to cause substantial danger to
present or future public health, welfare, or the environment.
As a general rule, this can be accomplished by pursuing
remedies that attain or exceed the requirements of applicable
or relevant and appropriate Federal public health or environ-
mental laws. However, because of unique circumstances at
particular sites, there may be alternatives that do not meet
the standards of other laws, but that still provide protection
of public health, welfare, and the environment.
Although response actions that prevent hazardous sub-
stances from migrating into the environment are seen as the
most effective under CERCLA, actions which minimize migration
must also be considered since CERCLA primarily addresses
inadequate past disposal practices and resulting unique site
conditions. At certain sites, it may be technically impractical
environmentally unacceptable, or excessively costly to
a response action that prevents migration or restores the
site to its original, uncontaminated condition.
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II. Policy
Section 104 of CERCLA requires that for off-site remedial
actions, storage, destruction, treatment or secure disposition,
be in compliance with subtitle C of the Resource Conservation
and Recovery Act (RCRA). CERCLA is silent, however, concerning
the requirements of other laws with regard to all other
response actions taken pursuant to sections 104 and 106.
As a general rule, the Agency's policy is to attain or
exceed applicable or relevant and appropriate Federal environ-
mental and public health requirements in CERCLA response actions
unless one of the specifically enumerated situations is present.
Where such a situation is present and a requirement is not
followed, the Agency must document and explain the reasons in
the decision documents. Other Federal criteria, advisories,
guidances, and State standards also will be considered and may
be used in developing remedial alternatives, with adjustments
for site-specific circumstances. If EPA does not use, or uses
and adjusts any pertinent standards in this category, EPA will
fully document the reasons why in the decision documents.
A. On-site Response Actions
(1) For removal actions, EPA's policy is to pursue
actions that will meet applicable or relevant and appropriate
requirements of other Federal environmental and public health
laws to the maximum extent practicable, considering the
exigencies of the situation.
(2) For remedial actions, EPA's policy is to pursue
remedies that attain or exceed applicable or relevant and
appropriate requirements of other Federal public health and
environmental laws, unless the specific circumstances identi-
fied below exist.
CERCLA procedural and administrative requirements will
be modified to provide safeguards similar to those provided
under other laws. Application for and receipt of permits is
not required for on-site response actions taken under the
Fund-financed or enforcement authorities of CERCLA.
B. Off-Site Response Actions
CERCLA removal and remedial activities that involve the
removal of hazardous substances from a CERCLA site to off-
site facilities for proper storage, treatment or disposal must
be in compliance with all applicable or relevant standards
of Federal environmental and public health statutes.
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Off-site facilities that are used for storage, treatment,
or disposal of Superfund wastes must have all appropriate
permits or authorizations.
If the facility or process that is being considered for
receipt of the Superfund wastes has not been permitted or
authorized, the State or responsible party will be required
to obtain all appropriate permits. Furthermore, as stated in
the Agency's off-site policy memorandum, "Procedures for
Planning and Implementing Off-Site Response Actions", May 6,
1985, barring several exceptions enumerated in that memorandum,
no CERCLA hazardous substances shall be taken off-site to a
unit in a RCRA facility if the receiving Region's Administrator
determines that the unit has significant RCRA violations or
other environmental conditions that affect the satisfactory
operation of the facility. A State's responsibility for
obtaining any appropriate Federal, State or local permits
(e.g., RCRA, TSCA, NPOES, UIC, Clean Air, etc.) will be specified
in a contract or cooperative agreement with the State as
part of its assurances required under section 104(c) of CERCLA.
III. Other Laws or Guidances That May Be Used to Determine
the Appropriate Extent of Response Actions"
Federal and State environmental and public health requirements^
criteria, guidance and advisories fall into two categories:
0 Federal requirements that are applicable or relevant
and appropriate,
0 Other Federal criteria, advisories, guidances, and
State standards to be considered.
An initial list of both categories is attached.
A. Applicable or Relevant and Appropriate Federal Requirements
"Applicable" requirements are those Federal requirements
that would be legally applicable, whether directly, or as
incorporated by a federally authorized State program, if
the response actions were not undertaken pursuant to CERCLA
section 104 or 106.
"Relevant and Appropriate" requirements are those Federal
requirements that, while not "applicable", are designed to
apply to problems sufficiently similar to those encountered
at CERCLA sites that their application is appropriate.
Requirements may be relevant and appropriate if they
would be "applicable" but for jurisdictional restrictions
associated with the requirement.
For example, the RCRA 40 CFR Part 264 Subpart F Ground-
Water Protection Standards would be applicable to the
management or cleanup of hazardous wastes in ground water
from hazardous waste management facilities if such actions
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-4-
were not taken pursuant to CERCLA sections 104 or 106.
Yet RCRA Subtitle C regulations, while not applicable to
hazardous wastes disposed of prior to the November 19. 1980,
effective date of those regulations, could be relevant to
CERCLA response actions regardless of when the wastes were
disposed of or managed.
B. Other Federal Criteria, Advisories, Guidances and State
Standards to Be Considered "~"
This category includes other standards, criteria, advisories
and guidance that may be useful in developing Superfund remedies.
These criteria, advisories and guidances were developed by EPA,
other Federal agencies and the States. The concepts and data
underlying these requirements may be used at Superfund sites
in an appropriate way.
IV- Implementation
A. Removal Actions
For both on and off-site Fund-financed removal actions,
the lead agency should consult with the Regional Response Team
within the framework of the Regional Contingency Plan to deter-
mine the most effective action.
(1) On-site
For on-site removal actions, the lead agency shall, as
appropriate, attempt to attain or exceed all Federal applicable
or relevant and appropriate public health or environmental
requirements. The lead agency also shall, as appropriate,
consider other Federal criteria, guidances, and advisories as
well as State standards in formulating the removal action.
However, because removal actions often involve situations
requiring expeditious action to protect public health, welfare,
or the environment, it may not always be feasible to fully
meet them. In those circumstances where they cannot be
attained, the decision documents, OSC reports, or other dccu-e-ts
should specify the reasons.
(2) Off-site
Off-site facilities that are used for storage, treatre-t,
or disposal of Superfund wastes must have all appropriate
permits or authorizations and, barring certain exceptions,
enumerated in the off-site policy, no hazardous substance
shall be taken off-site to a unit in a RCRA facility if the
Region determines that the unit has significant RCRA viciac-c-s
or other environmental conditions that affect the satisfact"-
operation of the facility.
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B. Remedial Actions
1. Presentation and Analysis of Alternatives
To the extent that it is both possible and appropriate,
at least one remedial alternative shall be developed as part of
the feasibility study (PS) in each of the following categories:
(a) Alternatives for treatment or disposal in an off-
site facility, as appropriate?1
(b) Alternatives that attain applicable and relevant and
appropriate Federal public health or environmental requirements;
(c) As appropriate, alternatives that exceed applicable
and relevant and appropriate public health or environmental
requirements^•
(d) As appropriate, alternatives that do not attain
applicable or relevant and appropriate public health or
environmental requirements but will reduce- the likelihood of
present or future threat from the hazardous substances and
that provide significant protection to public health, welfare
and environment. This must include an alternative that closely
approaches the level of protection provided by the applicable
or relevant and appropriate requirements;
(ej A no action alternative.
2. Selection of Remedy
The decisionmaker will consider all of the alternatives
arrayed in the feasibility study and will give primary considera-
tion to remedies that attain or exceed applicable or relevant and
appropriate Federal public health and environmental requirements.
Where the selected remedy involves an EPA standard, criterion,
or advisory, the decisionmaker will ensure appropriate coordination
with affected EPA programs.
In appropriate cases, the decisionmaker may select a
remedial action that includes both on- and off-site components.
1 These alternatives must be consistent with EPA's May 6, 1985
off-site policy, "Procedures for Planning and Implementing
Off-Site Response Actions". In some cases, off-site disposal
or treatment may not be feasible and this alternative may be
eliminated during initial screening of alternatives. The
decision documents should reflect this screening.
2 For instance, the Agency might choose incineration as an
alternative that exceeds what would be required by applicable
standards because it is a more permanent and reliable solution
than RCRA closure standards for land disposal facilities.
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The decisionmaker may select an alternative that does
not attain applicable or relevant standards in one of the five
following circumstances:
(a) Interim Remedy - Where the selected alternative
is not the final remedy and will become part of a more
comprehensive remedy, the lead agency may select an interim
remedy;
(b) Fund-Balancing - For Fund-financed responses only, the
need for protection of public health, welfare and the environment
at the facility under consideration for all of the alternatives
that attain or exceed applicable or relevant and appropriate
Federal requirements is, considering the amount of money available
in the Fund, outweighed by the need for action at other sites
that may present a threat to public health or welfare or the envi-
ronment. In the event of Fund balancing, the lead agency shall
select the alternative which most closely approaches the level
of protection provided by applicable or relevant and appropriate
Federal requirements, considering the specific Fund-balanced
sum of money available for the immediate facility. Fund-balancing
is not a consideration in determining the appropriate extent of
remedy when the response will be performed by a potentially
responsible party;
(c) Technical Impracticality - Where no alternative that
attains or exceeds applicable or relevant and appropriate Federal
public health or environmental requirements is technically prac-
tical to implement, the lead agency shall select the alternative
that most closely approaches the level of protection provided by
the applicable or relevant and appropriate requirements, and
which, is reasonable to implement from an engineering perspective:
(d) Unacceptable Environmental Impacts - Where all the
alternatives that attain or exceed Federal public health or
environmental requirements, if implemented, will result in
significant adverse environmental impacts, the lead agency shall
select the alternative that most closely approaches the level cf
protection provided by applicable or relevant and appropriate
requirements, without resulting in significant adverse environ-
mental impacts; or
(e) Overriding Public Interest Related to Enforcement -
Where the remedy is to be carried out pursuant to CERCLA
section 106, the Fund is unavailable, there is a strong
public interest in expedited cleanup, and the litigation
probably would not result in the desired remedy, the lead
agency will select the alternative that most closely approaches
applicable or relevant and appropriate Federal public health arc
environmental statutes in light of the need to invoke the
exception.
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Where one of these situations is present, the decision-
maker may select an alternative which does not attain or
exceed applicable or relevant and appropriate Federal public
health or environmental requirements, yet still provides
protection of the public health and welfare and the environment.
The basis for not meeting the requirements must be fully
documented and explained in the appropriate decision documents.
The Agency anticipates that most final CBRCLA remedial actions
will attain or exceed applicable or relevant and appropriate
public health or environmental requirements.
Other Federal criteria, advisories, guidances, and State
standards also will be considered and may be used in developing
remedial alternatives, with appropriate adjustments for site
specific circumstances. If EPA does not use, or uses and adjusts
any pertinent standards in this category, EPA will fully document
the reasons why in the decision documents.
For Fund-financed actions, where State standards are
part of the cost-effective remedy, the Fund will pay to attain
those standards. Where the cost-effective remedy does not
include those State standards, the State may pay the difference
to attain them.
3. Administrative and Procedural Aspects
The following modifications will be made to the Superfund
community relations program to ensure that it provides a
similar level of public involvement to that provided by the
permitting programs of other environmental laws:
0 A fact sheet should be included with the public
notice and feasibility study which is provided to the public
2 weeks before the 3 week public comment period. The fact
sheet will clearly summarize the feasibility study response
alternatives and other issues, including which alternatives
attain or exceed Federal public health and environmental re-
quirements. For those alternatives that do not attain
applicable or relevant and appropriate requirements of other
public health and environmental laws, the fact sheet shall
identify how they do not attain the requirements and explain
how they nonetheless meet the goals of CERCLA. The public
notice should include a timetable in which a decision will be
reached, any tentative determinations which the Agency has
made, the location where relevant documents can be obtained,
identification of community involvement opportunities, the name
of an Agency contact, and other appropriate information.
• A public notice and updated fact sheet should be
prepared upon (1) Agency selection of the final response
action and (2) completion of the final engineering
design. Prior to selecting the final engineering design,
the Agency may hold a public meeting to inform the public of
the design alternatives and to solicit comments.
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-8-
0 If a remedy is identified that is materially
different from those proposed during the feasibility study
public comment period, a new 3 week public comment period may
be required prior to amending the Record of Decision, taking
into consideration the features of the alternatives addressed
in the public comment period.
The CERCLA enforcement community relations program will
also be modified to provide for an enhanced public partici-
pation program for both consent decrees and administrative
orders. This program will be substantially equivalent to the
revised program for Fund-financed actions. Furthermore,
consent decrees and administrative orders will incorporate
administrative requirements (i. e. recordkeeping, monitoring)
similar to those mandated by other environmental programs.
V. Applicability of Policy
This policy applies to two situations:
0 a site-specific FS has not yet been initiated;
the FS must fully comply with this policy.
0 the FS has been initiated, but the remedy has
not yet been selected; the requirements of this
policy shall be incorporated into the FS and
Record of Decision (ROD) as practicable.
This policy does not apply to RODs signed before February 12,
1985, the date of proposal of this policy.
If you have any questions or comments, please contact
James Lounsbury, Director, Policy Analysis Staff (202 382-2182)
or Stephen M. Smith of his staff (202 382-2200).
Attachment
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POTENTIALLY APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
.—••„ . -r .11 . —in. .. _. ----- - •• --- ' ----- ^
1. EPA'a Office of Solid Waste administers, inter alia, the
Resource Conservation and Recovery Act of 1976, as amended
(Pub. L. 94-580, 90 Stat 95, 42 U.S.C. 6901 et seq.).
Potentially applicable or relevant requirements pursuant to
that Act are:
a. Open Dump Criteria - Pursuant to RCRA Subtitle D
criteria for classification of solid waste disposal
facilities (40 CFR Part 257).
Note: Only relevant to nonhazardous wastes.
b. In most situations Superfund wastes will be handled
in accordance with RCRA Subtitle C requirements
governing standards for owners and operators of
hazardous waste treatment, storage, and disposal
facilities: 40 CFR Part 264, for permitted
facilities, and 40 CFR Part 265, for interim status
facilities.
0 Ground Water Protection (40 CFR 264.90-264.109).
0 Ground-Water Monitoring (40 CFR 265.90-265.94).
0 Closure and Post Closure (40 CFR 264.110-264.120,
265.110-265.112).
• Containers (40 CFR 264.170-264.178, 265.170-265.177)
0 Tanks (40 CFR 264.190-264.200, 265.190-265.199).
0 Surface Impoundments (40 CFR 264.220-264.249,
265.220-265.230).
0 Waste Piles (40 CFR 264.250-264.269, 265.250-265
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• Land Treatment (40 CFR 264.270-264.299, 265.270-
265.282).
• Landfills (40 CFR 264.300-264.339, 265.300-265.316)
• Incinerators (40 CFR 264.340-264.999, 265.340-
265.369).
• Dioxin-containing Wastes, (50 FR 1978). Includes
the the final rule for the listing of dioxin
containing waste.
2. EPA's Office of Water administers several potentially
applicable or relevant and appropriate statutes and
regulations issued thereunder:
a. Section 14.2 of the Public Health Service Act as
amended by the Safe Drinking Water Act as amended
(Pub. L. 93-523, 88 Stat 1660, 42 U.S.C. 300f et seq.)
0 Maximum Contaminant Levels (for all sources of
drinking water exposure). (40 CFR 141.11-141.16)
0 Underground Injection'Control Regulations. (40
CFR Parts 144, 145, 146, and 147)
b. Clean Water Act as amended (Pub. L. 92-500, 86 Stat
816, 33 U.S.C. 1251 et. seq.)
* Requirements established pursuant to sections
301, 302, 303 (including State water quality
standards), 306, 307, (including Federal pretreat-
ment requirements for discharge into a publicly
owned treatment works), and 403 of the Clean
Water Act. (40 CFR Parts 131, 400-469)
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c. Marine Protection, Research, and Sanctuaries Act (33
U.S.C. 1401).
• Incineration at sea requirements. (40 CFR Part
220-225, 227, 228. See also 40 CFR 125.120-125.124)
CPA's Office of Pesticides and Toxic Substances
Toxic Substances Control Act (15 U.S.C. 2601).
• PCB Requirements Generally: 40 CFR Part 761;
Manufacturing Processing, Distribution in Commerce,
and Use of PCBs and PCB Items (40 CFR 761.20-761.30);
Markings of PCBs and PCB Items (40 CFR 761.40-761.45);
Storage and Disposal (40 CFR 761.60-761.79). Records
and Reports (40 CFR 761.180-761.185). See also 40 CFR
129.105, 750.
0 Disposal of Waste Material Containing TCDD. (40
CFR Part 775.180-775.197).
EPA's Office of External Affairs
0 Section 404(b)(l) Guidelines for Specification of
Disposal Sites for Dredged or Fill Material
(40 CFR Part 230).
0 Procedures for denial or Restriction of Disposal
Sites for Dredged Material ($404(c) Procedures, 40
CFR Part 231).
EPA's Office of Air and Radiation administers several
potentially applicable or relevant and appropriate statutes
and regulations issued thereunder:
a. The Uranium Mill Tailings Radiation Control Act of
1978 (42 U.S.C. 2022).
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-4-
0 Uranium mill tailing rules - Health and
Environmental Protection Standards for Uranium
and Thorium Mill Tailings, (40 CFR Part 192).
b. Clean Air Act (42 U.S.C. 7401).
0 National Ambient Air Quality Standards for
total suspended particulates (40 CFR Part 50.6-
50.7)
0 National Ambient Air Quality Standards for ozone
(40 CFR 50.9)-
0 Standards for Protection Against Radiation - high
and low level radioative waste rule, (10 CFR Part
20). See also 10 CFR Parts 10, 40, 60, 61, 72,
960, 961.
0 National Emission Standard for Hazardous Air
Pollutants for Asbestos, (40 CFR 61.140-61.156).
See also 40 CFR 427.110-427.116, 763.
0 National Emission Standard for Hazardous Air
Pollutants for Radionuclides (40 CFR Part 61, 1C
CFR 20.101-20.108).
6. Other Federal Requirements
a. OSHA requirements for workers engaged in response
activities are codified under the Occupational
Safety and Health Act of 1970 (29 U.S.C. 651). T-.e
relevant regulatory requirements are included ur.cjer:
0 Occupational Safety and Health Standards (General
Industry Standards) (29 CFR PArt 1910).
0 The Safety and Health Standards for Federal
Service Contracts (29 CFR Part 1926).
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0 The Shipyard and Longshore Standards (29 CFR
Parts 1915, 1918).
0 Recordkeeping, reporting, and related regulations
(29 CFR Part 1904).
b. Historic Sites, Buildings, and Antiquities Act (16
U.S.C. 461).
c. National Historic Preservation Act, 16 U.S.C. 470.
Compliance with NEPA required pursuant to 7 CFR Part
650. Protection of Archaelogical Resources: Uniform
Regulations — Department of Defense (32 CFR Part
229, 229.4), Department of the Interior (43 CFR Part
7, 7.4).
D.O.T. Rules for the Transportation of Hazardous
Materials, 49 CFR Parts 107, 171.1-171.500.
Regulation of activities in or affecting waters of the
United States pursuant to 33 CFR Parts 320-329-
The following requirements are also triggered by Fund-
financed actions:
0 Endangered Species Act of 1973, 16 U.S.C. 1531.
(Generally, 50 CFR Parts 81, 225, 402).
Wild and Scenic Rivers Act, 16 U.S.C. 1271.
Compliance with NEPA required pursuant to 36 CFR
Part 297.
0 Fish and Wildlife Coordination Act, 16 U.S.C. 661
note.
0 Fish and Wildlife Improvement Act of 1978, and
Fish and Wildlife Act of 1956, 16 U.S.C. 742a
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-6-
0 Fish and Wildlife Conservation Act of 1980, 16
U.S.C. 2901. (Generally, 50 CFR Part 83).
0 Coastal Zone Management Act of 1972, 16 U.S.C.
1451. (Generally, 15 CFR Part 930 and 15 CFR 923.45
for Air and Water Pollution Control Requirements).
OTHER FEDERAL CRITERIA, ADVISORIES, GUIDANCES,
AND STATE STANDARDS TO BE CONSIDERED
1. Federal Criteria, Advisories and Procedures
0 Health Effects Assessments (HEAs)
0 Recommended Maximum Concentration Limits (RMCLs)
0 Federal Water Quality Criteria (1976, 1980, 1984).
Note: Federal Water Quality Criteria are not legally
enforceable. State water quality standards are legally
enforceable, developed using appropriate aspects of
Federal Water Quality Criteria. In many cases, State
water quality standards do not include specific numerical
limitations on a large number of priority pollutants.
When neither State standards nor MCLs exist for a
given pollutant, Federal Water Quality Criteria are
pertinent and therefore are to be considered.
0 Pesticide registrations.
0 Pesticide and food additive tolerances and action levels.
Note: Germane portions of tolerances and action levels
may be pertinent and therefore are to be considered in
certain situations.
0 Waste load allocation procedures, EPA Office of Water.
0 Federal sole source aquifer requirements.
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• Public health basis for the decision to list pollutants
as hazardous under section 112 of the Clean Air Act.
• EPA's Ground-water Protection Strategy.
• New Source Performance Standards for Storage Vessels
for Petroleum Liquids.
• TSCA health data.
• Pesticide registration data.
0 TSCA chemical advisories (2 or 3 issued to date).
• Advisories issued by FWS and NWFS under the Fish and
Wildlife Coordination Act.
- • Executive Orders related to Floodplains (11988) and
Wetlands (11990) as implemented by EPA's August 6, 1985
Policy on Floodplains and Wetlands Assessments for
CERCLA Actions.
0 TSCA Compliance Program Policy.
0 OSHA health and safety standards that may be used to
protect public health (non-workplace).
0 Health Advisories, EPA Office of Water
2. State Standards
0 State Requirements on Disposal and Transport of
Radioactive wastes.
• State Approval of Water Supply System Additions or
Developments.
• State Ground Water Withdrawal Approvals.
* Requirements of authorized (Subtitle C of RCRA) State
-------
-8-
hazardous waste programs.
0 State Implementation Plans and Delegated Programs
Under Clean Air Act.
• All other State requirements, not delegated through
EPA authority.
0 Approved State NPDCS programs under the Clean Water Act.
0 Approved State UIC programs under the Safe Drinking
Water Act.
Note: Many other State and local requirements could
be pertinent. Forthcoming guidance will include a
more comprehensive list.
3. USEPA RCRA Guidance Documents
0 Draft Alternate Concentration Limits (ACL) Guidance
A. EPA's RCRA Design Guidelines
1. Surface Impoundments, Liners Systems, Final Cover and
Freeboard Control.
2. Waste Pile Design - Liner Systems.
3. Land Treatment Units.
4. Landfill Design - Liner Systems and Final Cover.
B. Permitting Guidance Manuals
1. Permit Applicant's Guidance Manual for Hazardous Waste
Land Treatment, Storage, Disposal Facilities.
2. Permit Writer's Guidance Manual for Hazardous Waste
Land Treatment, Storage, and Disposal Facilities.
3. Permit Writer's Guidance Manual for Subpart F.
4. Permit Applicants Guidance Manual for the General
Facility Standards.
-------
-9-
5. Waste Analysis Plan Guidance Manual.
6. Permit Writer's Guidance Manual for Hazardous Waste
Tanks.
7. Model Permit Application for Existing Incinerators.
8. Guidance Manual for Evaluating Permit Applications
for the Operation of Hazardous Waste Incinerator Units.
9. A guide for Preparing RCRA Permit Applications for
Existing Storage Facilities.
10. Guidance Manual on closure and post-closure Interim
Status Standards.
C. Technical Resource Documents (TRDs)
1) Evaluating Cover Systems for Solid and Hazardous Waste.
2) Hydrologic Simulation of Solid Waste Disposal Sites.
3) Landfill and Surface Impoundment Performance Evaluation
4) Lining of Water Impoundment and Disposal Facilities.
5) Management of Hazardous Waste Leachate.
6) Guide to the Disposal of Chemically Stabilized and
Solidified Waste.
7) Closure of Hazardous Waste Surface Impoundments.
8) Hazardous Waste Land Treatment.
9) Soil Properties, Classification, and Hydraulic
Conductivity Testing.
D. Test Methods for Evaluating Solid Waste
1) Solid Waste Leaching Procedure Manual.
2) Methods for the Prediction of Leachate Plume Migration
and Mixing.
-------
-10-
3) Hydrologic Evaluation o£ Landfill Performance (HELP)
Model Hydrologic Simulation on Solid Waste Disposal
Sites.
4) Procedures for Modeling Flow Through Clay Liners to
Determine Required Liner Thickness
5) Test Methods for Evaluating Solid Wastes
6) A Method for Determining the Compatibility of Hazardous
Wastes
7) Guidance Manual on Hazardous Waste Compatibility
4. USEPA Office of Water Guidance Documents
A. Pretreatment Guidance Documents
1) 304(g) Guidance Document Revised Pretreatment Guidelines
(3) Volumes)
B. Water Quality Guidance Documents
1) Ecological Evaluation of Proposed Discharge of Dredged
Material into Ocean Waters (1977)
2) Technical Support Manual: Waterbody Surveys and
Assessments for Conducting Use Attainability Analyses
(1983)
3) Water-Related Environmental Fate of 129 Priority
Pollutants (1979)
4) Water Quality Standards Handbook (1983)
5) Technical Support Document for Water Quality-based
Toxics Control.
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-11-
C. NPDES Guidance Documents
1) NPDES Best Management Practices Guidance Manual (June
1981)
2) Case studies on toxicity reduction evaluation (May 1983).
0. Ground Water/UIC Guidance Document
1) Designation of a USDW
2) Elements of Aquifer Identification
3) Interim guidance for public participation
4) Definition of major facilities
5) Corrective action requirements
6) Requirements applicable to wells injecting into,
through or above an aquifer which has been exempted
pursuant to S146.104(b)(4).
7) Guidance for UIC implementation on Indian lands.
5. USEPA Manuals from the Office of Research and Development
1) EW 846 methods - laboratory analytic methods
2) Lab protocols developed pursuant to Clean Water Act
S304(h).
-------
Discharge of Wastewater from CERCLA
Sites into POTWs
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20480
APR 15 B86
MEMORANDUM
SUBJECT: Discharge of Wastewater from CERC
FROM: Henry L. Longest II, Director
Office of Emergency and Rented i
l\J\o*
Rebecca Hanmer, Director
Office of Water Enforcement and Permits
Gene A. Lucero, Director
Office of Waste Programs Enforcement
TO: Waste Management Division Directors
Regions I - X
Water Management Division Directors
Regions I - X
A number of emergency removals and remedial cleanup actions
under CERCLA will involve consideration of publicly owned treat-
ment works (POTWs) for discharge of wastewater. The current
off-site policy (issued on May 6, 1985) does not address the set
of concerns and issues unique to POTWs that must be evaluated
during the Remedial Investigation and Feasibility Study (RI/FS)
for discharge of CERCLA wastewater to POTWs.
Recently, we have had meetings with representatives of the
Association of Metropolitan Sewerage Authorities (AMSA) to discuss
technical and policy concerns related to the POTW/CERCLA issue.
This memorandum is to highlight some of the major points under
consideration which were shared with AMSA at their recent Winter
Technical Conference. The Agency intends to develop policy on
the use and selection of POTWs for CERCLA wastewater. Tour
comments are sought on the proposed criteria set forth herein.
These criteria may be useful in evaluation of POTWs for response
actions (fund financed or responsible party financed) to be taken
in the interim.
Our position is that no CERCLA discharges to a POTW should
occur unless handled in a manner demonstrated to be protective
of human health and the environment. Full compliance with all
applicable requirements of the Clean Water Act (CWA), the
Resource Conservation and Recovery Act (RCRA), and any other
relevant or appropriate environmental statutes will be necessary .
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- 2 -
The national pretreatment program, under the Clean Water Act,
requires an analysis to determine whether the discharge of an
industrial user of a POTW may pass through the POTW to cause
receiving water quality problems or may interfere with POTW
operations (including sludge disposal). If the analysis suggests
that limits on the industrial user's discharge are needed to pre-
vent pass through or interference, local limits or other safe-
guards, as necessary, must be established by the POTW and/or the
NPDES permitting authority. The national pretreatment program
requirements apply to the introduction of all non-domestic
wastewater into any POTW, and include, among other things, the
following elements:
o Prohibited discharge standards - prohibit the intro-
duction of pollutants to the POTW which are ignitable,
corrosive, excessively high in temperature, or which
may cause interference or pass through at the POTW.
o Categorical discharge standards - include specific pre-
treatment standards which are established by EPA for the
purpose of regulating industrial discharges in specific
industrial categories.
o Local limits - where no categorical standards have been
• promulgated or where more stringent controls are necessaryT
POTWs under consideration as potential receptors of CERCLA
wastewaters may include those POTWs either with or without an
approved pretreatment program. POTWs with an approved pretreat-
ment program are required to have the mechanisms necessary to
ensure compliance by industrial users with applicable pretreatment
standards and requirements.* POTWs without an approved pretreat-
ment program must be evaluated to determine whether sufficient
mechanisms exist to allow the POTW to meet the requirements of
the national pretreatreent program in accepting CERCLA. wastewaters.
As noted above, pass through and interference are always prohibited
regardless of whether a POTW has an approved pretreatment program.
POTWs without an approved pretreatment program must therefore
have mechanisms which are adequate to apply the requirements of
the national pretreatment program to specific situations.
*pOTWs with approved pretreatment programs must, among other
things, establish procedures to notify industrial users (Ills) of
applicable pretreatment standards and requirements, receive and
analyze self-monitoring reports from lUs, sample and analyze
industrial effluents, investigate noncompliance, and comply with
public participation requirements.
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-3-
Deterraination of a POTW3 ability to accept CERCLA wastewater
as an .alternative to on-site treatment and direct discharge to
receiving waters must be made during the Remedial Investigation/
Feasibility Study (RI/PS) process. During the remedial alternatives
analysis, the appropriateness of using a POTW must be carefully
evaluated. Water Division officials and their state counterparts
should participate in the evaluation of any remedial alternatives
recommending the use of a POTW, and should concur on the selection
of the POTW.
If an alternative considers the discharge of wastewater from
a CERCLA site into a POTW, the following points should be evaluated
in the RI/PS prior to the selection of the remedy for the site:
o The quantity and quality of the CERCLA wastewater and its
compatibility with the POTW (The constituents in the
CERCLA wastewater must not cause pass through or inter-
ference, including unacceptable sludge contamination or
a hazard to employees at the POTW; in some cases, control
equipment at the CERCLA site may be appropriate in order
to pretreat the CERCLA discharge prior to introduction to
the POTW).
o The ability (i.e., legal authority, enforceable mechanisms,
etc.) of the POTW to ensure compliance with applicable
pretreatment standards and requirements, including monitor-
ing and reporting requirements.
o The POTW's record of compliance with its NPDES permit
and pretreatment program requirements to determine if
the POTW is a suitable disposal site for the CERCLA waste-
water.
o The potential for volatilization of the wastewater at the
CERCLA site and POTW and its impact upon air quality.
«
o The potential for groundwater contamination from trans-
port of CERCLA wastewater or impoundment at the POTW, and
the need for groundwater monitoring.
o The potential effect of the CERCLA wastewaters upon the
POTW's discharge as evaluated by maintenance of water
quality standards in the POTW's receiving waters,
including the narrative standard of "no toxics in toxic
amounts".
-------
- 4 -
o_ The POTW's knowledge of and compliance with any applicable
RCRA requirements or requirements of other environmental
statutes (RCRA permit-by-rule requirements may be trig-
gered if the POTW receives CERCLA wastewaters that are
classified as "hazardous wastes" without prior mixing
with domestic sewage, i.e., direct delivery to the POTW
by truck, rail, or dedicated pipe; CERCLA wastewaters are
not all necessarily considered hazardous wastes; case by
case determinations have to be made).
o The various costs of managing CERCLA wastewater, including
all risks, liabilities, permit fees, etc. (It may be
appropriate to reflect these costs in the POTW's connection
fees and user charge system).
Based upon consideration of the above elements, the discharge
cf CERCLA wastewater to a POTW should be deemed inappropriate if
the evaluation, indicates that:
c The constituents in the CERCLA discharge are not com-
patible with the POTW and will cause pass through, inter-
ference, toxic pollutants in toxic amounts in the POTW's
receiving waters, unacceptable sludge contamination, or a
hazard to employees of the POTW.
c The impact of the transport mechanism and/or discharging of
CE3CLA wastewater into a POTW would result in unacceptable
impacts upon any environmental media.
c The POTW is determined to be an unacceptable receptor
cf CSaCLA wastewaters based upon a review of the POTW's
compliance history.
3 The use of the POTW is not cost-effective.
If consideration of the various elements indicates that the
discharge cf CSHCLA wastewater to a POTW is deemed appropriate:
c Tiere should be early public involvement, including
cent-act with POTW officials and users, in accordance
viti tbe CX2CLA com unity relations plan and public
requirements.
T-s 5PDE3 permit aod fact sheet may need to be modified
re reflect the conditions of acceptance of CERCLA waste-
waters; permit modification may be necessitated by the
r.ee-1 is incorporate specific pretreatment requirements,
lzc.al limits, monitoring requirements and/or limitations
c- aiciticr-al pollutants of concern in the POTW's dis-
-~2.-ze z: ct-r^.er fact-crs.
-------
-5-
Po-licy to be developed in the future will apply to all
removal, remedial, and enforcement actions taken pursuant to
CERCLA and Section 7003 of RCRA. We would appreciate your feed-
back on this memorandum and any experience in the use of POTWs
for CERCLA removal or remedial actions that you have to offer.
If you have any comments or questions on this issue, please
submit written comments to the workgroup co—chairs: Shirley Ross
-------
Occupational Safety and Health
Administration: Labor Federal Register
Volume 51, No. 244
-------
Friday
December 19, 1986
Part IV
Department of Labor
Occupational Safety and Health
Administration
29 CFR Part 1910
Hazardous Wast* Operations and
Emergency Response; Interim Rnal Rule
-------
4S654 Federal Register / VoL 51. No. 244 / Friday. December 19. 1986 / Rules and Regulations
DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1910
(Ooc*«t No.S-780!
Hazardoua Waat*> Operation* and
Emergency Ra*pona«
AaiMCr Occupational Safety and
Health Administration: Labor.
ACTION: Interim final rale.
r. This interim final rola
amends the Occupational Safety and
Health Administration (OSHA)
standards for hazardous material* in
Subpan H of 29 CFR Part 1310 by adding
a new f 1910.120 containing employe*
protection requirements for workers
engaged in hazardous waste operations
including emergency response to
hazardoua substance incidents.
Coverage includes employees
involved in responses covered by the
Comprehensive Environmental
Response. Compensation and Liability
Act of 1980 as amended (CERCLA or
"Superfund" Act) (Pub. L. 96-510.42
U.S.C. 9801 et sea. 94 Slat 27B7| such as
clean-up of hazardous waste sites,
certain hazardous waste operations
conducted under the Resource
Conservation and Recovery Act of 1976
as amended (RCRA) [Pub. L. 94-580, 42
U.S.C. 9901 etseq. SOS tat Z79S). and
emergency response to incident*
involving the hanrflfrng ny^ming aft*j
transportation of hazardous, substancas.
The issuance of this interim final rale
is mandated by section 128(e) of the
"Superfund Amendments and
Reauthorization Act of 1986" (SARA)
(Pub. L 99-t90f. The interim final role
will regulate employee safety and health
at hazardous waste operations and
during emergency response to
hazardous substance incidents until a
final standard, also mandated by section
126 of SARA, is issued by OSHA and
becomes effective. Toe final OSHA
standard also mandated by section 128
of SARA is ths »ubj«ct of a Notice of
Proposed Rulemaidag which will b«
published shortly.
DATKC Interim role effectire December
19.1980: various, start-op data* have-
been established tn paragraph (p) of the-
standard. The incorporation by
reference of certain publications listed
in the regulations is approved by the
Director of the Federal Register as of
December 19.1986.
FACT:
Mr. fames F. Foster. U_S. Department of
Labor. Occupational Safety and Health
Adminisntion. Division of Consumer
Affairs. Room S-1220. 200 Constitution
Avenue. NW.. Washington. DC 20210.
202-523-8151.
This interim final rule was prepared
by Michael B. Moore and Chappeil D.
Pierce. Directorate of Safety Standards.
Office of Fire Protection Engineering and
Systems Safety Standards. (202) 523-
7225.
3UPPUMKMTAIIY INFORMATION:
I. Background
On October 17.1988. the President
signed into law the "Superfund '
Amendments and Reauthorization Act
of 1980" (SARA) (Pub. L 99-4991. As
part of SARA the Secretary of Labor
("Secretary") is directed to issue an
interim final rule within 80 days after
the date of enactment, which is to
provide no less protection for workers
engaged in covered operations than the
protections contained in the
Environmental Protection Agency's
(EPA). "Health and Safety Requirements
for Employees Engaged in Field
Activities'* manual (EPA Order 1440.2)
dated 1981 and the existing OSHA
standards under Subpart C of 29 CFR
Port 1929. SARA also directs the
Secretary to issue, within one year, a
final standard under section 6(br of the
Occupational Safety and Health-Act of '
1970 for the health and safety of
employees engaged in hazardous waste
operations. SARA further indicates that
certain specific areas of employee
protection (Le_ medical surveillance.
personal protective equipment, (raining.
and others) contained in section 126(bf
are relevant to protect employee*
engaged in hazardous waste operations.
foe interim final rule issued today
becomes effective immediately and will
remain in effect until one year after
Issuance of the final OSHA standard.
which will be proposed shortly.
Congress has dearly directed in section
126(e) that these interim final roles
become effective upon issuance and the
standard provides this. Implementation
is to commence immediately, however.
various ttart-up dates are set forth In
paragraph (p) of the standard which
recognize that full implementation
cannot be completed immediately for
some provisions. In addition OSHA will.
of course, recognize greater feasibility
constraints in the first three months of
the standard and take those constraints
into account In- enforcement.
This interim final rale has been
adopted from the language of the EPA
manual entitled "Health and Safety
Requirements for Employees Engaged In
Field Activities" (1981) and the language
of OSHA's *afety and health standards
in Subpan C of 29 CFR Part 1928. The
interim final rule also contains language
taken from various documents issij
either jointly or solely by the EPA.
OSHA. the U.S. Coast Guard, and th«
National Institute far Occupational
Safety and Health (NIOSH). OSHA hu
specifically used the joint OSHA/EPA/
USCC/NIOSH document entitled.
"Occupational Safety and Health
Guidance Manual for Hazardous Waiti
Site Activities " (Preamble Reference 6),
as an outline in preparing this interim
rule. This four agency manual has ben
developed as a result of the
collaborative efforts of professionals
representing the four agencies. These
professionals, who are knowledgeabU
in hazardous waste operations, worked
with over 100 experts and orgajuzationi
in the development of the criteria
contained in this manuaL The manual
was published in October 1965 and is
public information. The manual is a
guidance document for managers
responsible for occupational safety and
health programs at inactive hazardous
waste sites. The manual ia Intended for
use by government officials at all levels
and contractors involved with
hazardous waste operations. The
manual provides general guidance and
is intended to be used aa a preliminary
basis foe developing a specific health
and safety program for hazardous wuti
operations. Further the major subje
areas listed in SARA section 128(b)j
nearly identical to these major chap
listed in the manuaL
Congress indicated that reasonably
comprehensive-protection was intend*!
for employees at hazardous wastt
operations, as discussed below, coverinj
more than the minimum reqnirementi
specified in the EPA manual (EPA Ordtr
1440-2) and Subpart C of 29 CFR Part
1928. In light of the short period of timi
Congress directed for issuance of thii
standard. OSHA's utilization of
recognized sources of guidance which
have been created by experts in the W
and utilizing the resources of relevant
agencies is appropriate.
In view of the briefperiod given for
the Issuance of this document, it msyJ*
necessary to issue minor corrections in
the near future.-
IL Summary ""^ Explanation of the
Standard
Paragraph (af—Scope. Application. W
Definitions
In paragraph (a)(lj. Scope. OSHAlf
defined the scape of the standard to
include:
(i) Hazardous substance response
operations under the Comprehensive
Environmental Response.
Compensation, and Liability Act oft
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Federal Register / Vol. 51. No. 244 / Friday. December 19. 1986 / Rulea and Regulations 45655
<*s amended (CERCLA) including initial
investigations at CERCLA sites before
(he presence or absence of hazardous
substances has been ascertained:
(ii) Major corrective actions taken in
clean-up operations under the Resource
Conservation and Recovery Act of 1970
as amended (RCRA):
(Hi) Operations involving hazardous
waste storage, disposal and treatment
facilities regulated under 40 CFR Parts
284 and 285 pursuant to RCRA except
for small quantity generators and thoae
employers with less than 90 daya
accumulation of hazardous waate* aa
defined in 40 CFR 282J4:
(iv| Hazardous waste operations sites
that have been designated for clean-up
by state or local governmental
authorities: and
(v) Emergency response operations for
releases of or substantial threats of
releases of hazardous substances and
post-emergency response operations to
such releases.
Thus this standard will cover
hazardous waste clean-up operations at
CERCLA sites. RCRA sites, emergency
response sites and those sites
designated by Slate or local
governments. It will also cover other
hazardous waste operations, such aa
storage, disposal or treatment of
hazardous waste at RCRA facilities.
OSHA believes that Congress
intended the interim rale to have a
broad scope and application. This f»
indicated by the legislative intent aa
reflected in the language of SARA. The
language of section I2fl(e) explicitly
states that the Secretary "shall issua
interim final regulations under this
section..." (emphasis supplied). "Undar
this section" refers to the entin section
128 of SARA. And. aa previously noted.
section 128(a) mandates safety and
health standards for the protection.of
employees engaged in hazardous waste
operations. Thus. OSHA believes
Congress intended the interim final rule
to mirror section 128 and provide
protective provisions to employees
engaged in hazardous waste operations.
The argument is buttressed farther by
the fact that section 128(e) states that
the interim final rule shall provide no
less (emphasis added) protection for
workers employed by contractors and
emergency response workers than the
protection contained in the
Environmental Protection Agency
Manual "Health and Safety
Requirements for Employees Engaged in
Field Activities" and exiting standards
under Subpart C of 29 CFR Pan 1828.
The two sources cited in section 128(e|
are not a limitation on the scope of the
interim rule. Rather, this language
establishes'the minimum amount of
protective provisions, with the broad
parameters of employee protection
delineated by the remainder of section
128.
This interpretation is reinforced
because SARA is a freestanding,
statutory provision and not an
amendment to CERCLA. The clear
Congressional intent then is to provide
protection to employees whenever they
deal with hazardous wastes.
The hazards an employee faces at a
RCRA. CERCLA. or emergency response
site are the same hazards. The risk of
exposure is to the same types of
hazardous substances. The scope of the
regulation fulfills the Congressional
mandate: to effectively provide for
employee health and safety at
hazardous waate operations and
emergency response incidents.
As indicated in. the application
provisions, different provisions of the
standard apply to clean-up operations.
regular hazardous waste operations and
emergency response to take into account
relevant differences.
Further the term "hazardous waste
operation" is used in. section 12S(a) of
SARA. "Hazardous waste" is also a
term used in RCRA and there is no
indication from SARA or its legislative
history that RCRA facilities wen to be
excluded from coverage by this interim
rule. This is a further reason why OSHA
has included RCRA hazardous waste
operations under the coverage of this
interim final rule. However, small
quantity generators: employers who
have less than 90 daya of hazardous
waste accumulation: and solid waste
disposal operations which do not
involve hazardous waste are,aot
covered by this interim final rule. Also.
employees at hazardous waste site*
who will not be exposed or do not have
the potential to be exposed to hazardous
substances are not covered by this
interim final rule.
Emergency response employees who
respond or will respond to incidents
involving hazardous substances are
covered by this interim final rule. Public
employees of stales that have
agreements with OSHA under section 18
of the OSH Act must issue regulations at
least as effective aa these to protect
public employees.
Municipal or other sanitary l«iniHH«
that handle domestic wastes are not
covered. Similar waste paper or scrap
metal operations are generally not
covered because of the type of wastes
they handle. But they could be covered
if they have clean-ups for or handle
hazardous wastes mwang the scope
provisions Of the standard.
Operation* with no exposure to on-
site hazardous substance*. L«_ road
building for site accass. construction of
on-site or the setting up of temporary
facilities in the clean zone or the closure
of a RCRA site involving the building of
a clay cap over hazard wastes, are
considered to be construction activities
covered by the standards in 20 CFR Part
1928.
The scope and application provisions
carry out the intent of Congress and are
consistent with good occupational
safety and health policy. Employees
performing clean-up operational under
CERCLA. RCRA (corrective actions) and
post emergency response, generally
(hose employees likely to have the
highest exposures to hazardous
substances over a longer period, are
covered by virtually all the provisiona of
the rule. Employees exposed to
hazardous wastes in routine RCRA
hazardous waste operations, who an
regularly exposed to hazardous wastes
but in a more controlled environment.
are covered by the mon limited
requirements of paragraph (o) of that
interim final rule. Emergency response
workers, exposed usually for short
periods to often unknown but possibly
high levels of hazardous substances.
have specific provisiona directed
towards this situation.
In paragraph (a)(2). Application;
OSHA designates the requirements
which apply to the specific work
activities covered by this interim final
rule. The requirements set forth la
paragraph (1) of this section specifically
apply to the work conducted by
emergency response personnel, such aa
fire fighters, emergency medical system
(EMS) employees and police, whan they
respond to hazardous substance
incidents.
The requirements set forth hi
paragraph (o) of this section specifically
apply to the hazardous waste operations
at RCRA sites, which an involved in
disposal treatment storage and
handling of hazardous waste. The
exclusion of small quantity operators
and less than 90-day accumulators
excludes from coverage by the interim,
rule operators such aa dry cleaners and
gas stations which coma within that
purview of RCRA but an not hazardous
waste operators in the normal meanirif
of the term. The approximately 4000
RCRA sites when reasonably large
quantities of hazardous wastes an
regularly handled, treated and stored
are covered by the rule. This reflects the
legislative intent, meets the normal
meaning of hazardous wasta operations
and coven the type of safety and health
hazards that this regulation is designed
to control.
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456Sd Federal Register / Vol. 51. No. 244 / Friday. December 19. I960 / Rules and Regulations
.Moil of the requirements of the
interim rule apply to clean-up activities
of hazardous jubilance* or hazardous
wastes at CERCLA jitei. corrective
action* at RCRA sites, and clean-up
operation* of hazardous substance* at
emergency incident* alter emergency
response personnel have concluded
their duties.
The employer mu*l also comply with
the standard* in 29 CFR Parts 1910 and
1928. a* well a* with the requirements
specifically covered in this interim rale.
If there is a conflict or overlap, the mor*
protective provision* are to apply. Since
thi* interim rule doe* not cover all of the
hazard* present at hazardous weate
operation*, other OSHA standard* in
Pans 1910 and 1928 apply also. Other
OSHA standards cover many other
hazards, and OSHA wants to make
dear that the other standards continue
to apply- Also, hazardous waste
operators who are not within the scope
of this standard are covered by the Parts
1910 and 1928 standards.
(n paragraph (a|(3). Definitions.
OSHA has defined various term* used
in thi* rulemaking. The- definition* for
hazardous lubstaneee. and hazardous
wastes have been taken from the ITS
Environmental Protection Agency (EPA)
and U.S. Department of Transportation-
(DOT] regulations. This has been don*
to assure consistency end compatibility
between this interim rule end the rules
and regulations of the EPA and DOT.
The remaining definition* have been
taken for the most pert from SARA, the
four agency manual (Reference ft) or
existing OSHA standards.
The term "established permissible
exposure limit" la defined to give-
direction aa to die appropriate degree) of
protection needed to be achieved by
personal protective equipment and other
similar purposes.
Paragraph (b)—General RgquinoMnta
In paragraph (b). Contra/
requirements. OSHA sets forth for the
most port a summary of requirements'
which are specified in detail in later
paragraphs. The preamble discussion for
later paragraphs sets forth-the reasons
for the various provisions. Many of
thase requirements are part of the
minimum requirement* which Congres*
directed OSHA to issue in section 128(e)
of SARA. The EPA manual (EPA Order
1440.2) referenced in section 128(e}
requires extensive training- and medical
surveillance programs. Subpart C of 29
CFR Part 192S. slso referenced, require*.
in addition, accident prevention
programs (5 1928-20(b)), use of
appropriate personsl protective
equipment (f 1931.281. tanitatian-and.
illumination requirements (it 1920.29
and 1928.27], provisions on safe
handling of toxic substances (J 1928.21
(bl(S)), precautions in confined speces
(5 I920.2l(b)(6|) and similar provisions.
Congress also directed additional
provisions for the proposed regulation.
which ere considered relevant for the
interim regulation. These include
engineering control*, maximum
exposure limits and monitoring,
handling requirements, decontamination
procedures and emergency response.
Besed on this comprehensive statutory
direction OSHA believes mat the intent
of Congress is to have employers
implement a safety end health program
that will address the recognized serious
hazards to employees involved in
hazardous waste operation!. Therefore.
OSHA has incorporated the more
important elements of section 128(b).
along with the mandatory provisions of
section 12B(e) of SARA, into this rule.
Each general requirement in paragraph
(b) calls for employer action and directs
the employer to the specific paragraph
of thi* rule that contains the duties in
greater detail
OSHA believes that these
requirements ere necessary to assure
adequate employee protection to the
known hazards faced by employees. The
language used in these requirements has
been adapted from the various
documents listed hi the Reference
section of this preamble.
Three of the subparagnpha in
paragraph (b) do not reference other
paragraphs in the regulation. Paragraph
(b)(l) requires the employer to develop a
safety and heelth program for hazardous
waite operations. Such programs are
part of the requirements- mandated by
SARA for the interim rale. Thus. Subpart
C of 29 CFR Part 1928 requires such a
program in 1192&20(b) and EPA Order
1440.2 requites training in "safety plan
development" (pg. S). OSHA's,
experience also establishes that a safety
and health program is necessary to
protect employees so that hazards are
assessed and control programs are
systematically laid out. Prior OSHA
section 6(b) heelth standards require a
compliance plan to set forth a health
program to protect empioyeee uvsui the
hazard.
Paragraph (b)(14) requires compliance
with Subpart P of 29 CFR Part 1928
which covers excavation. OSHA
considers that those provisions already
apply, but they are singled out because
they are particularly important to
monitor since much excavation activity
occurs on hazardous waste sites.
Paragraph (b)(15) requires employers
to notify contractors snd subcontractors
of the hazards identified by the
employer at hazardous waste
operations. Sections 128(b)(2) and («|0[
SARA indicate Congress's specific
interest in protecting employees of
contractors and in involving contractor;
in the safe operation of hazardous wm,
sites. This provision assists the
contractor to become aware of the rijlq
so that die contractor's employees may
be better protected.
Paragraph (cl—Sito Charaetarization
and Analysis
For an effective safety and health
program, which Congress clearly intindi
for employees, the employer needs to
know the hazards faced by employees In
order to develop and implement
effective control measures. Site-
characterization provides the
information needed to identify site
hazards and to select employee
protection methods. The more accurate.
detailed, and comprehensive the
information available about a site, the
more the protective measures can be
tailored to die actual hazards that the
employees may encounter. Congress
clearly intended that such a requirement
be included. Subpart C of 28 CFR Part
1928 referenced in section 128(e) of ^
SARA requires "frequent and i
inspections of the job site" (28 <
192oJO(b)(2)). Also section 128
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Federal Royaler / Vol. 51. No. 244 / Friday. December 19. 1966 / Rulea and Regulations 456S7
Paragraph fdt—Site Control.
As part 01 the-employers' site safety
and health plan, this paragraph requires
the employer to consider sit* control to
minimize potential contamination of
employees. Several items need to be
considered, such as establishing work
zones, so that employees know the
hazards in different area* and will keep
out of hazardous areas when the
employees' presence is not required. Us*
of a buddy system and good site
communications will assist in rescue of
employees who become unconscious.
trapped or otherwise seriously disabled
on site.
Site control is especially important in
emergency situations. Paragraph (d)
describes the basic components of a
program to control the activities and.
movements of employees and equipment
at a hazardous waste site.
Several site control procedure* can b«
implemented to reduce employe*
exposure to chemical, physical.
biological, and safety hazards. The
degrees of site control necessary
depends on site characteristics, site size.
and the surrounding community. The
site control program should b«
established in the planning stage* of a
project and modified based on new-
information and site assessments
developed during site characterization.
The appropriate sequence for
implementing these measure* should be
determined on a site-specific basis. In
many cases, it- will be necessary to
implement several measures
simultaneously.
The text used in this paragraph has
been adapted from Reference 9. Item 9
of the EPA manual (Order 144O2)
indicates the need for this. In addition
Subpart C of 29 CFR Part 1928 provide*
for regular inspection of job site* so.
hazards on the site can be controlled.
Paragraph («)—Training.
The interim final rule include* specific
provisions for initial and review training
of employees before they an permitted
to engage in hazardous wast* operations
that could expose them to. safety and
health hazards. Both the EPA manual
and 29 CFR 192&21 and 1928.22 referred
to in section 128(e) of SARA have
training and Information requirements.
The EPA manual has specific provisions
for basic, intermediate and advanced
training. It requires 40 hours training for
employees managing uncontrolled
hazardous waste sites. 24 hours for
employees engaged in routine activities
and 32 hours for intermediate activities.
Additionally, section 128 generally has
requirements for extensive training
programs. The clear congressional Intent
of the interim final rule training
provisions is to provide employee* with
(he knowledge and skills necessary to
perform hazardous waste clean-up
operations with minimal risk to their
safety and health.
The provisions for employees include
a minimum of 40 hours of initial
instruction off the site, and a minimum
of 3 days of actual field experience
under the direct supervision of a trained
and experienced supervisor, at the time
of job assignment. This amount of
training is specifically directed by
Congreaa for the interim final rule by ita
reference to the EPA manual which
basically require* thia amount of
training for hazardous waste operator*
and Congress has specifically impo**d
these hour and day requirement* under
section 12B(dl of SARA for the proposed
final standard. Then era slight
difference* between the EPA manual
and section 128(e) of SARA. But they are
sufficiently slight so that OSHA believe*
it appropriate to make the interim, final
rule consistent with what Congra**
directs for the proposed final rule so that
employers need not make minor
modifications to their training program*
after .two yean.
In addition there are often many
hazards at a waste site. Th* employe*
need* to be trained to recognize th*
hazard* and appropriate work practice*
to minimize those hazards. Th*
employe* also needa to be well trained
fa the us* of respirators and other forma
of PPE. Without training those may not
be used effectively and will not provide
adequate protection. An extensive
training program ia necessary to achieve
these objective*. Th* paragraph
specific* these and the other item*
needed for effective training to avoid
hazard*.
Managers and supervisors directly
responsible for hazardous weal* sit*
operations an to receive th* cam*
training aa that of employee* and at
least eight additional hours of
specialized training on managing
hazardous waste operation*. Sine* the**
people are-responsible for directing
other*, it is necessary to enhance their
ability to-provide guidance and to make
informed decisions. Both the EPA
manual and section 128(e) of SARA
direct eight hour* of additional training
for supervisor* and managers.
The provisions also state that
employee* shall be retrained on an
•annual basis on relevant matter* such
as review of health hazards and us« of
personal protective equipment.
Employee* at hazardous weata
operation* face serious haalth and
safety risks. Reminders are needed of
this and of work practices to avoid
hazards. Personal protective equipment
provides much of their protection. If
there is no retraining in the us*, care
and maintenance of said equipment
such equipment ia unlikely to b* utilized
in a manner to provide adequate
protection. The regulation provide* for
eight hours of annual retraining. Th*
EPA manual for refresher training (Item
=10) requires this amount of training.
In all area* of training. wh*th*r It b«
for general site employee*. on-*it*
supervisors or for th* us* of specific
equipment th* level of training provided
needa to be consistent with th* worker's
job function and retponsibilitie*. Th*
training information should b*> presented
clearly and. a* a further safeguard,
refresher training should b* snppU*d to
reemphaaize th* initial training and to
update employee* on any n*w polid**
or procedures.
A les* detailed training provision I*
provided for employee* working at
routine operation on RCRA site*. Tho*e
sites will have more stabl* working
conditions and the hazard* will b*
better identified and more carefully
controlled. Therefore OSHA believe*
not aa extensive training ia needed for
those employee* for th* interim rule.
OSHA specifies 24 hours for th*
required training based on th* EPA
manual which specifle* thia •• thc-bamc
level of training for most routine field
activities. OSHA in the-proposal
document will reqneat comment whether
this, or a greater amount of training ia
appropriate for th* permanent ml*.
Paragraph (f)—Medical SurniUenof
The interim final rule both include*
specific provision* for baseline and
periodic medical examination*. Th* EPA
manual referred to in section 12fl(e) of
SARA ha* requirement* for both Initial
or baseline and periodic medical
examination*. The examination* are to
be provided to those routinely expoaad
to hazardoua substance*, to thoM wfao*a>
dutie* are physically taxing and tho**
who routinely wear respirators. In
addition section 128(b) provide* that
routine medical examination* are to b*
provided to worker* engaged In
hazardous waste operation*. Although
th* language ia slightly different th*
clear intent ia to provide a
comprehensive medical surreillanca
program for employ*** engaged In
hazardous wast* operation* where It 1*
medically prudent
The paragraph state* medical
surveillance is to b* provided- to
employees who hav* b**n or are
expected to be *xpo*ed to hazardou*
subctanc** or haalth hazard* abov*
established permissible exposure limits
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45658 Federal Register / Vol. 51. No. 244 / Friday. December 19. 19aa / Rules and Regulations
for 30 or more days in • 12-month period
or who wear respirators 30 days during
the year. These are the employees who
will be at greater health nsk and
employees who wear respirators need to
be examined to determine whether they
can safely do so as a routine matter.
Some dividing line is needed, became
employees who might be present on a
hazardous waste site only a few days a
year or working in areas such as offices
or the periphery where exposures are
low would not normally benefit from
medical surveillance as their likely
cumulative exposure* to toxic chemical*
would be very low probably not
significantly higher than the general
population. The EPA manual indicates
some dividing line is appropriate
because-it directs medical surveillance*
only for employee* "routinely" expoaed.
Wearing respirators for any part of
each of 30 days will-require medical
surveillance because it indicates routine
exposure to toxic chemicals. There is no
requirement that there be 240 hours of
respirator use before medical
surveillance is required. Similarly being
exposed over established safe levels to
several chemicals each for less than 3O
days but totalling more than 30 day* pei
year requires medical surveillance This
indicates routine exposures to
hazardous substances and also
combinations of chemicals may cause
synergistic effects creating greater
health hazards than an individual
chemical.
OSHA ha* based many of the detail*
of medical surveillance on its
experience in issuing health standards
under section 8(b) of the OSH Act and
as directed by section 6(b)(7] of the Act.
Congress would be knowledgable that
medical surveillance requirement* in
these standards represent OSHA's
expert judgement of what is an
appropriate medical surveillance
program.
The appropriate medical tests and
examinations depend on the substance* •
an employee is exposed to and whether
the employee wears a respirator. As-
employees on hazardous waste rite*
will be exposed to differing substances.
the paragraph can not specifically stale-
the required tests. Consequently the
paragraph states that the employer
provide to the physician information on
exposures, respirator use. and duties on
the site. The physician is then to
determine the appropriate medical
surveillance protocol in terms of specific
tests and examinations. By the employer
specifying duties the physician also can
judge whether the employee can handle
the arduousness of the work.
In situations where most of the
employees on the site have similar
exposures the protocol may be similar
for all employees. Where different
groups of employees on the site have
substantially different exposure*.
several different protocol* may be
appropriate for the site's workers
depending on exposures.
There are a number of sources for
guidance on specific medical
examination protocols. Chapter 5 of
Reference 9 provides such guidance by
groups of chemicals likely to be present
on a site. It reference* other authorities.
The manual should be supplied to the
physician. It is also a basis for the
medical surveillance program required
by this paragraph. In addition, the EPA
medical monitoring program guidelines
referenced by the EPA manual provides
guidance on specific protocols.
The paragraph requires an initial or
baseline medical examination either
prior to the start up date for employee*
who are currently working at hazardou*
waste sites or prior to initial assignment
to an area where medical examination*
will be required. The purpose i* to take
a detailed medical history and where-
possible develop e health baseline prior
to any exposures so as to be able to
evaluate changes which may be
connected to hazardous substance
exposures. In addition the initial
examination will permit evaluation of
whether the employee can appropriately
wear respirators and whether th*
employee has preexisting condition*
which would make exposure to
hazardous substances inappropriate. An
initial examination has been required by
other OSHA health standards and i*
recommended in Reference ft.
The physician must be informed of
what type of respirators and personal
protective equipment an employe* ia
likely to wear. The medical examination
ia'to include appropriate tests to
evaluate die employee's ability to wear
respirators and PPE.
The physician will also specify the
protocol of the periodic examinations.
These may be different from the initial
examination, for example, only an
updated medical history would be
required. The periodic examination* are-
required yearly. OSHA's-experience In
other health standard* ha* been that
this i* an appropriate period and it I*
also recommended by Reference ft.
EPA's medical monitoring program
guidelines eras* referenced in the EPA
manual recommends baseline annual
examination generally and a termination
examination. It is reasonable to
determine periodically whether
exposures have brought medical
changes and to identify conditions
caused by chemicals at an carry stage to
permit more effective treatment. In some
circumstances, the physician
advise more frequent examinations.
Examinations are also to be providnj
when the employee brings to the
employer's attention signs or symptom,
indicating possible overexposure to
hazardous substances. The employee It
to be trained in recognizing what
symptoms may indicate substance* to
which the employee i* exposed.
Examples may be dizziness or rashes.
Examination* are also required, when
medically appropriate, during
emergencies when exposure to higher
level* i* possible. For example, a
urinary phenol test is appropriate for
employees exposed to high level* of
benzene in en emergency.
Finally, a medical examination 1*
required for employee* who have been
required to have medical examinations
upon termination of employment or
reassignment to an area, where medical
examination* are not required. This I* ID
detect condition* which have developed
prior to departure and i* recommended
by the EPA program.
The medical examination i* to be
provided under the supervision of a
licensed physician. La. the person must
be qualified to make medical
judgements. A* provided by section^
8(b)(7) of the OSH Act, the employtsfl
•to pay the coat of the examination. ™
addition provision* are included so that
the employe* i* not discouraged from
taking the examination. The exam 1* to
be given at a reasonable time and place.
If given during, regular working hours ths
emoloyee shall receive the employer's
normal pay for that time. If the exam 1*
given outside regular working hours, th*
employee shall be paid hi* regular
wage* for the time spent taking and
waiting for the examination.
Th* physidaa shall make a report to
the employer of medical condition*
which may make the employe* at
increased risk to work at th* sit* and
any recommendation* on limitation* on
use of respirators and other PPE a* a
result of the medical condition*. This
will provide guidance for th* safe
employment of th* employee et th* site.
The physician shall not reveal dlagnoseJ
or conditions unrelated to employment
but shall Inform th* employee directly of
those condition* and any and ail
occupationally related condition*.
The medical paragraph requires that
appropriate record* be kept to assist In
future evaluation of the employee's
health. Secondarily, this information
may assist in research on occupational
related, disease. Records should be kept
pursuant to the provisions of 29 CFRj
1910.20. Full consideration was given]
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Federal Reyatar / VqL 51. No. 144 / Friday. December 19. 1986 / Rules and Regulations 45658
that standard to appropriate retention
periods,
Paragraph (g)—Eogimeriag Control*.
Work Practice*, and Ptnoantl
Protective Equipment
Anyone entering • hazardous waste
lite mint be protected against potential
hazards. The purpose of engineering
control*, work practice*, and PPE i» to
shield or isolate individual* from th*
chemical, physical, and biologic hazard*
that may be- encountered at a hazardous
waste site. Careful selection and us* at
adequate engineering control*, work
practice* and PPE should protect any
employee from health and many other
hazards including hazard* to to*
respiratory system, skirt, eye*; facet
hands, feet. head. body, and heariaa>
Requirements of battrSubpart C of 29
CFK Pan 1925 and the. EPA manuet
• mandated to be inchided in die ttaadard1
by Congreaa carer the provision and as*
of penonal protective equipment, See
for example. 29 CPU T928-28 and item*
7(aU 9(e)(7) and 9(b)(2) of the EPA
manual, la addition-exisoiBrOSKA
regulation* which apply tobezerdou
waste operation*, in 23 CFft Put 1910.
Subpart Z require exposure* to various
toxic and hazardous subsatnce* to be
controlled with engiiiuirinj- umaols if
feasible;, etherwwe with PPK, The*«
requiramcnu apply now to- employer*
and weikai* oe Superraad site*
pursuant to EPA regvUtieas in 40 GFR
Part 30a Finally. Congr*** specified' la
section. 128(a> that then should b* both
PPE and engineering, control provisional
for the permanent final standard.
Paragraph (gj(l) basically carries over
the existing requirement* of Sttbpart Z.
OSHA regulated toxic and; hauaiduua
substance* are- to be- controlled1 to the
permissible exporwe Unit tf feasible. If
not feasible they are- to ba- controlled
with PPE.
Paragraph (gK2) provides) that to
achieve established permiarrbra
exposure* hmtat fof TMJu'^rjCTff not
regulated by OSHA. the employer
use an appropriate eombiaafl'aa of
engineering control*, work practice*.
and PPE. A* the** ez» interim
reguletioae, preference for engmeenn*.
coMrol* where not alteedy 1*14 aired
would not be appropriate- because ol the
limited tune frame of this regulation- and
the frequent Inability to inataB roea-
controls in a short period. la eddtton it
is OSHA's experience- that dti* is an-
appropriate approach based on the
emergency temporary, standards it ha*
issued which are also in effect for *
limited period. OSHA will ask for
comment in me** areas in th*> proposal
document.
Examples of engineering controls
which may be feasible are pressurized
cabs on material* handling equipment or
pressurized control rooms in materials.
handling areas. However, in many cases
penonal protective equipment will ba-
the only feasible, means, foe providing.
protection to employees, engaged la
hazardous, waate opera liana.Th*
selection of penonal protective
equipment (PPE) must b* based on the
information obtained during *h^ site
characterization and analysis, as is
required by paragraph (gK3)(I) of this
standard Once an eeomate of the- type*
of hazards and their potential
concentration ha* been obtained; the -
prop** re«p«raxor» and proactive
clothing- can b* selected baaad on>lna)
perf onnancs chsraeterisocs ol the PPB
relative (a th*> sitst hazard* ead work
condJttoBv*. as. i* re^uizvd by paragraph
(g)(3KU) oi th* standard. Th**«
requiremeiM*. arat danwd fima
Reference & and are alao snppuctssi by- a
N1OSH docuaaaL "Personal Pratactrv*
Equipment foe Hazardous. Marfariala
Incidents: A Salectlon.Cud*'.'* Theaai
two documeat also^uooorc that
requiremaoni of pexasjraob* (gJ(2Kni>
and (g)(2)(iv) which require poaitrve*
pressure rnsiraiora with ^r*«f»
pravisioaa to bat oawd ia fDLU
mmnnihaisa and tataUy-cncaasulaticig'
i hsiini al jMiiiai ri*sj mill rii ha unit
whecvcannuEl of th* skiavby that
subataoca wonld ba an>IDLH cioiAtioo.
Proper respuatuf seiecuon* a*
required' by thi* standard and 27 CFR
1S1O.134. invoiws providing' a snfHdent-
protection factor through- the type- of
respirator oaedi respirator fitting; work
site condiboaa. and respirator selection
and use program. Proper prm*ctr»e
clothing selection, a* required by thi*
standard, involves rhnnsing pmtarriva
clothing made of materials and
con*tractio*j which will pi event
breaJcthroogh of hazardous substance*
by permeanoa and penetration, or
reduce; the level of exposure to a saf*
level during the employee's duration of
contact Information on the perfbn&anca
characteristics of PPE i* available ia test
reports and manufacturer's literature.
Appendix B provide*, non-mandatory
guidelines- on classifying subsrxnca
hazard* as four levels (A. B. C aad DX
and matching- four lareli or appropriate
protection provided by different
protective ensemble*. These guideUna*
may be used as a basis for protective
clothing selection, and the selection
further refined when more information is
obtained; as provided for in paragraph
(S)(2)(v) of the standard, (b cartau
orcumstancas; this standard doe*
specify the appropriate level of
protection. See paragraph. (c|(4UUi](.
Paragraph lg)(3|(vi) crosa. referenc* that
existing requirements (a select and u*«
PPE pursuant to the requiremenU of 23
CFR 19ia Subpart I.
Paragraph (gj(4) require* tolally-
encapsulating suit materials used for
Level A protection (th* highest level of
protection) to provide protection from
the specific hazards which hav* been
identified as requiring that level of
protection. Th* purpoa* of thi*
requirement is to be certain that th* mil
selected is comprised of materials which
will provide the necessary protection.
since jut-on* material wilt provide*
protection from all hazard*. Petagraph*,
(8)(4)(ii) and (aJ(4)(liil reqvr* totally-
encapsulating suits too* capable- of
maintaining: positive air pressure to b*ip>
prevent laward leakage- of haaanhiaa.
substances, and to ba capable of
preventing inward gas laakaga> of avona
than CL5 percent. Thasa- reqniiaaaealsv
which are based oa tearing of totally-
encapanlaring suit*, ar* iaciudod to
establish, a miiiiimtm Uvai of suit
perf ormanc» so thai their level oC
protection can be quantified for proper
selecooo. The example last methods ia
Appendix A for totslly-encapsuUting,
chemical protective suits weza Ukan
from draft American Society foe Testine)
and Materials committee: docuniants.
Paragraph (g}(5} requires a PPE,
program to be- established. This
requirement is bsted upon teferene*.&..
29 CFR 192&28. EPA oranual i tarn* 4 aad>
7(g), and is included, lines, in moat
cases. PPE will b* the only protection.
feasible for employee protection, aad.
because the amount of protection,
afforded by PPE is dependent upon so.
many factors, such as selection, fit. work
duration, and conditiona. and
decontamination. The PPE. pragma is
required to insure, that th* level of
protection, afforded by PPE is snffiriani
and continues to be sufficient for
employee safety during hazardoos
waste operations.
Paragraph (h) — Monitoring
It is essential that employers b*
provided with accurate. iaXarmafloa oat
employe* exposure* ia order, to
implement the correct PPE. aagtaeanajt
controls, and work pricrices. Airborne
contaminants ***** present s signific*at
threat to employe* safety cod health.
Thus, identification and f"»«*
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45660 Federml Register / Vol. si. No. Z44 / Friday. December 19. 1966 / Rules and Regulations
whether engineering controls can
achieve permissible exposure llmiU end
which control* to me. delineating area*
where protection i* needed, assessing
the potential health effect* of exposure.
and determining the need for specific
medical monitoring. As mentioned
above, lection 120(e) of SARA mandate*
the us* of PPE by it* direction that at a
minimum (he requirement* of the EPA
manual and Subpart C be followed.
Those include requirement* for u*e of
PPE. But PPE cannot be effectively uied
unless monitoring ha* identified the ryp*
of PPE to be uied. This i* a further
reason to include thi* provision in the
interim final rule.
The language of thi* paragraph we*
adapted from referenca 0.
Paragraph (i)—Informational Programs
In paragraph (i). Informational
Programs. OSHA i* requiring employer*.
as pan of their safety and health
program, to develop and Implement a
site specific safety and health plan for
each hazardou* wa*te operation site.
The site safety and health plan thall
be developed by the employer, utilizing
the other pan* of the organizational
plan and the employer's safety and
health program. The sit* safety and
health plan will address the anticipated
safety and health hazard* of each work
operation or activity and the mean* to
eliminate the hazard* or to affectively
control them to prevent injury or illness.
This «ite safety and health plan i* to
include: (1) The name* of those
responsible for aMuring that safe and
healthful practice* and procedure* ara
followed on the whole site: (2) rule
analysis or systems analysis for specific
work tasks or operation* on the site: (3)
employee training assignment* both off
site and oa-che-jotwraining on site (4)
the list of required personal proteolte
equipment needed for each work task
and operation on site (S) the employer'i
medical iurveillanca program for the
sue (6) the methods for identification
and characterization of safary and
health hazards on the sit* including the
monitoring procedure* that will b« don*
throughout the work on site (7) rit*
control measure* indadmg thos* for
establishing work zone* oa th* sit*: (8)
the necessary decontamination
procedures which an matched to th*
Vjf»fty of anticipated contaminants to b*
cleaned from employee* aad equipment:
(9) the standard operating procedure* to
be used by employees on site and (10)
the contingency plan for emergencies
and confined space entry procedure*.
Safety •**vnr^9 asd briefings- »»*^ sit*
inspections shall also be mentioned in
the plan *.* weil as the procedures to be
followed In changing or modifying the
plan.
The site safety and health plan i*
necessary to protect employe* health.
There are many hazards at a hazardous
waste operation which need to b*
determined and addressed. Th* plan
provides that this will b* done in a
systematic manner so that hazards will
not be missed and so that needed
protective action will not b* overlooked,
Th* approach used has b* adapted from
reference A.
Paragraph (ft—Handling Drama and
Containers
Th* handling of drums and containers
at hazardous wast* site* po*m on* of
th* greatest dangers to hazardou* waste
site employee*. Hazards include
detonations, fires, explosions, vapor
generation, and physical infury resulting
from moving heavy container* by hand
and working around stacked drums.
heavy equipment and deteriorated
drums. While these hazard* ara alway*
present proper work practice* can
minimi™ th* risks to sit* personnel.
Handling and storage of hazardous
substances is addressed In item (a) of
the EPA manual
Container* are handled during
characterization and removal of their
content* and during other operations.
Many of the h«M>H« encountered during
th* handling of drums occur during th*
handling of containers. The relative size
of a container when compared to the
size of a drum is no indication of the
degree of hazard posed by the container.
They should be treated in accordance
with the level of hazard posed by their
contents not by their size. The language
used in this paragraph we* adapted
from Reference 9*
Paragraph (k)—Decontamination
As part of th* can of PPE required by
thi« standard, decontamination is a
necessary |itactice to properly protect
those employee* who may be exposed
to hazardous substance*.
Decontamination provisions protect an
employee from being exposed to
hazardou* substance* which would
otherwise be on the employee's PPE
when it is removed. The standard
require* that a decontamination plan be
developed and implemented before any
employees or equipment may enter
anas on site when potential for
exposure to hazardous substances
exists.
As required by the standard.
decontamination procedures and areas
•hall be developed tO rninim^^
hazardous ^exposures to employees
whose equipment and PPE are being
decontaminated, as well as to
employee* who are assisting in the- '
decontamination of worker* and
equipment These measures are required
since without proper procedure* and
decontamination area*, employee* may
be unknowingly exposed to hazardous
substances which have contacted, or
otherwise adhered to equipment and
clothing. The standard also requires that
all employee*, clothing, equipment and
decontamination fluids and equipment
be decontaminated or disposed, of
before leaving a contaminated area.
These provisions are required so that
contaminated persons and materials do
not leave the "hot zone" and thereby
expose other employees and persons to
hazardous substances.
Decontamination methods and
cleaning fluids must be matched UMhe
particular hazardous substance at the
site in order for the decontamination
procedure* to be effective in removing
the hazards from PPE and other
equipment No one decontamination
Quid will be effective for all hazardous
substances. As required by the standard
the decontamination program must be
effective and it must be monitored by
the site safety and health officer to
maintain its effectiveness. These
requirements are included so that
employees are not exposed to hazardi
substance* by reusing PPE and other'
equipment which an still contaminai IT
The language used In this paragrapn
was adapted from reference a.
Paragraph (I}—Emergency Response
Section 128(e) of SARA specifically
discusses protecting "emergency
response workers.** in addition in the
EPA manual under items 4 and 9 and in
29 CFR 1928J3 and 132AM call for
preparation* and planning for
emergencies. Congress made its intent
dear that emergency planning and
response is an important part of any
employer'* safety and health program
and indicated that it is to be addressed
in the interim final rule.
In paragraph (!)(!)• Emergency
Response. General OSHA is requiring
employers covered in paragraph.
(a)(2)(li), who an involved in hazardous
waste operations, a* part of their on-sit*
contingency planning to develop and
implement an emergency response plan.
These employers ara to inform all their
employees on the wast* sit* about th*
emergency response plan. The plan 1» to
be available for use prior to the start of
work on (he site. The plan will be a part
of the sit* safety and health plan. The
elements of the emergency response
plan will include (1) Recognition of
emergences: (2) methods or procedural
for alerting employee* on site i[3) "
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Federal Register / Vol 51. No. 244 / Friday. December 19. 1988 / Rules and Regulation* 45661
evacuation procedures and routes to
places of reruqe or sale distance*, away
from the danger area: (4| means and
methods for emergency medical
treatment and first aid: (5) line of
authority for employees: and (0) on-site
decontamination procedures: site
control means and methods for
evaluating the plan.
Employers whose employees will be
responding to hazardous substance
emergency incidents from their regular
work location or duty station, such as »
fire department, fire brigade or
emergency medical service, will also be
required to have an emergency respons*
plan. These employees which may be
called upon to respond to hazardous
substance emergency incidents
involving a railroad tank car. motor
carrier tank truck or to a pleat location
are considered off-site emergency
response activities under thU section.
The emergency response plan i* to
include the incident command system-
required in paragraph (l)(3) of this.
section.
In paragraph (1)(2). Hazardous waste
operations, on-site emergency res-pans*.
OSHA is requiring the training of on-eite
emergency response personnel to hava>
the same basic training as for the other
employees iovohred in on-site hazardous)
waste.operertun* plus tnetraamg
needed to develop and retain-the-
necessary skills for anticipated
emergency response activities. Also, the
procedures for handling hazardous
substances on-site emergency inadeats? •
are to be oriented to the specific sit* and
made a pan of the emergency response
plan.
The requirement of paragraphs (1)(3|
and (l)(4) apply more broadly to all
employers whose employees respond to
off-site emergency incidents, (n
paragraph (l)(3). Off-site emergency
response. OSHA is mandating, thai
employers, such as fire departments.
emergency medical and first-aid squads.
fire brigades, etc- conduct monthly
training sessions for their employees
totalling 24 hours annually.
Not«—OSHA don oat ha««
over lute and local gavenaosa
OSHA ttace plan autte must issoa
regulation* as effective; a» that* t* cover
tuts tnd local sovensMOt tmpleyen In. the
lUtS.
Training activities, such a» breathing-
apparatus uset training, hoset handHnf;
and preplanning-may bet used ss training
subjects for the monthly session*
provided hazardous) substance incident
operations aee included In titer •
presentation, diacuaaioa or drill These
training- sessions and- drills must involve
at least 24 hours of training on an
annual basis.
The incident command system shall
be established by these employers for
the incidents (hat will be under their
control and shall be interfaced with the
other organizations or agencies who
may respond to such an incident. The,
National Transportation Safety Board.
as a result of its investigation of
hazardous materials incidents, has
consistently recommended that better
state and local emergency response
planning be done to reduce the loss of
life and property and that a system
using a command poet and on-seen*
commander be implemented. (See>
Special Investigation Report On-seen*
Coordination Among Agencies- at
Hazardous Materials Accidents. NTSB-
HZM-79-i September 13.197% and
Multiple Vehicle Collisions and! Fire.
Caldecott Tunnel near Oakland.
California. NTSB/HAR-83/01. National
Transportation Safety Board.
Washington. DC April 7.1982. for
further information.} Where available.
state and local district emergency
response plans shall be utilized in
developing the incident command
system and the emergency response
plan to assure comparability with, th*
other emergency responding agendas or
employers.
In paragraph OH4?. Hazardous
materials teams, OSHA la requiring
employers; who utilize specially trained
teems involved in intimate contact with
controlling or handling hazardous
substances, to provide special training
for the affected employees is such area*
as care and use of chemical protective-
clothing, techniques and procedures for.
stopping or controlling leaking
containers and def-nntemi nation, of
clotinng and equipment for •grt^r'*p^Teii
hazardous substanea incidents. The
employee is to make available to each
team member a physical ••""""•dm by
a licensed physician and to implement a
medical surveillance program in
accordance with the requirement* of
paragraph, (f) of this ssction.
In paragraph (IKS). OSHA is requirm*
employers covered In paragraphs (al(2)
(I) snd (ii) ol this sectioaw who wiiLb*
Involved in desnmg-up hazardous) wast*
after the- sasrgency response- activities
are concluded, n comply with la*, tamst
requirements that apply to others
involved with hazardous wa*t* clean-up
operations. These hazardous'waste
clean-up operations will be typically
done by ipeciai cuuaavjuis and net-by
that* agencies Involved in responding to-
tha initial emergency incident.
Paragraph (atf—Illumination
OSHA is required by SARA in section
128(e) to cover lighting.of the worksite.
In paragraph (m). Illumination. OSHA
requires certain minimum illumination.
levels for work areas that are occupied
by employees. Section 128(e) of SARA
requires as a minimum the inclusion of
the requirements of Subpart C of 29 CFR
Pan 1920. Section 192&2A of that
Subpart requires the amount of
illumination set forth in thia paragraph.
Paragraph (nf—-Sanitation for
Temporary Worksite*
In. paragraph (n). Sanitation for
temporary worksites. OSHA seta
minimum requirements, for potable end
non-potable water supplies, toilet
facilities, snd other areas related to
sanitation at temporary workplaces.
OSHA is mandated by SARA in sectioa
12B(e) to include sanitation, requirement*.
in the. interim final rule sine* it requires
the incorporation of provisions of
Subpart C
Paragraph (a)—Operations Conducted
Under the Resource Conserntiou and
Recovery Act afl979(RCRA)
OSHA is providing a separate
paragraph for operation* conducted at
worksites involving hazardous wast*.
storage, disposal and-treatment
operating under th* Resource
Conservation and Recovery Act of 1979
(ROTA). This separate paragraph of
requirements is appropriate because
RCRA site operation*, (not »m-JiiHiMj.
major corrective action* and their '
associated hazard* which are Ilk*
CERCLA sites and are covered by th*
main part of ma standard) generally ars>
different from th* operation* and
hazards found on • CERCLA d**n-«p-
site. For exampls.-RCRA sites covered
by this paragraph tend for the moat part
to be fixed on-going operation*
involving th* receiving. p'~-^T*itg.
storage, treatment, and disposal of
hazardous waste* or substance from.
outaida- sources. CERCLA sites oa the-
other hand sre temporary emergency
clean-up operation* involving often
undefined and substantial quantiti**. of
hazardous, substances.
Consequently hazard* should b*
better controlled and more routine and
stable for the RCRA sitaa m»etad by
this paragraph and so leas f»«"«Ti"^
requirements, are appropriate.
Paragraph fpf—-Start-up Dates
Section 12fl(e) of SARA direct* that
these tnreran final regulation* take
effect on issuance. Consequaatiy. mas*.
regulations do become eJeuiie on
issuance. However, completion of.
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43662 Federal Reyater / Vol. 51. No. 24-4 / Friday. December 19. 1966 / Rulea and Regulations
i.-nplemeniation for some provisions is
noi feasible immediately. For these
provisions, commencement of
implementation must begin immediately.
iiui completion of full compliance is
required us soon as possible or feasible
Iiui in no cnse later than a specified
date. which is no longer than three
months.
It is OSHA's judgment that all
provisions can be fully implemented by
•he periods specified. OSHA also
believes that the immediate
effectiveness provisions specifically
,-ipply to the mandatory requirements.
OSHA does not believe (hut Congress
intended that work at current hazardous
waste operations stop until
implementation of all requirements can
br fensibly completed. This paragraph
so indicates. However, for new sites.
these requirements can be completed in
advance. It is not OSHA's intention that
emergency actions necessary to protect
the public safety and health be
prevented because in a particular
circumstance it is not feasible to carry
out particular requirements of this
standard in the time needed to respond
to (he emergency.
III. References
I. Suptrfimd Amendments and
Kcauthonznlion Act of 1968 (SARA). Pub. L
H Comprehensive Environmental
Rc-jooniM*. Compensation and Liability Act of
I««KII ICEHCLA or "Superfund"). Pub. L 98-
5:0. December II. I960. 94 Slat. 2787.
3. Resource Conservation and Recovery
Aci «f 1978 (RCRA1. Pub. L 94-sao. October
r!. 1978. 90 Still. :T9S,
4. '1 !eallh and S«fely Requirements for
FrnpUtvces Fjuwged in Field Acnvilie»~.
F.nvironmenul Protection Agency Order
l-MO-C. C.S. Environmental Protection
Aerncy. July IZ. 1981.
~5. Sutxmris C and 0 of 3 CFR Part 1928.
8. -Occupational Safety and Health
Cuidance Manual for Hazardous Waste Site
Vfiviiies.". Occupational Safety and Health
Administration. Environmental Protection
.Agency. US Coast Guard, and National
litstitute for Occupational Safety and Hnlth.
DIIHS IMOSH1 Publication No. 85-11 S.
October 1965.
IV. Regulatory Impact AoaJym.
Regulatory Flexibility Analysis aod
Environmental Impact Analysis
OSHA anticipates that this interim
final standard will have a significant
impact upon employers and their
employees who work at CERCLA sites
and at some RCRA sites: and who
respond to emergency clean-ups of
hazardous substance spill*. OSHA haa
had little time since the enactment of
SARA to collect information concerning
these indui tries. As a result, the
currently available information ia
insufficient for OSHA to use to estimate
the potential benefits and coals that
would occur as a consequence of
compliance with this interim final rule.
OSHA is collecting additional
information to be used in conjunction
with the information from the comments
that will be received in response to
publication of the proposed rule
covering hazardous waste operations.
This information will be sufficient for
OSHA to provide a complete Regulatory
Impact Analysis for the final nil* that
will govern hazardous wast* operations.
Regulatory Flexibility Act Analysis.
The requirements of the Regulatory
Flexibility Act are not applicable to this
interim final rule, under 5 U.S.C. 603(a).
because notice and comment proposed
ru! em a king under the Administrative
Procedures Act. or any other statute, is
not required.
Environmental Impact Analysis. The
National Environmental Policy Act
(NEPAI of 1900 (42 U.S-C. 4321 at sea).
as implemented by the regulations (40
CFR Part 1500) of the Council on
Environmental Quality (CEQ). requires
that federal agencies aaaesa their
regulatory actions to determine if there
is a. potential for a significant impact on
the quality of the human environment
and. if necessary, to prepare an
environmental impact statement
In accordance with these
requirements and OOL NEPA
Compliance Procedures (29 CFR Part 11.
Subpart B. section 11.10(a)(4)). OSHA
has determined that due to the
compressed rulemaking schedule
imposed by the Congress in issuing the
interim regulation, no environmental
impact statement will be prepared for
this interim rule.
In similar situations, for example.
when an emergency temporary standard
(ETS) has been issued, the courts have
held that NEPA does not require
advance preparation of an
environmental statement for an ETS
(Dry Color Manufacturing Association
v. US. Department of Labor: 489 F. 2d
98.107 [3rd Cir. 1973J). This Interim final
standard ia similar in nature to an ETS
issued for relatively brief periods for
short notice pursuant to section 0(c) of
the Occupational Safety and Health Act
of 1970 and section 101(b) of the Federal
Mine Safety and Health Act of 1977. The
OOL NEPA regulations set forth in 29
CFR Part 11. Subpart B. section
11.10(a)(4). provide that in these
situations the regulations set forth in 40
CFR Parts 1500 e< seq may not be strictly
observable.
OSHA. however, will assess me
environmental effects of the proposed
permanent-regulation of hazardous
waste sites. The possibility that
increased training related to employ!
safety and health protection will alst
affect and reduce inadvertent
environmental releases of hazardous
jubilances at waste sites will be
analyzed. The results of (his study will
be available for review and comment
pnor to the hearing on the proposed
permanent standard and will be an
appropriate issue for discussion at the
public hearings scheduled for the
proceeding.
In the interim. OSHA welcomes any
comments on any environmental affects
that might occur as a result of
promulgation of a rule on hazardous
waste sites.
V. International Trade
OSHA has preliminarily concluded
that this interim final rule will not
significantly affect international trade.
The firms that will be primarily affected
by this interim final rule deal with
hazardous waste products and are not
involved in international trade. In
addition, the hazardous wastes to be
handled under this interim final rule ore
primarily by. products from previously
manufactured goods and consequently.
any potential costs would not be borne
by the goods that are currently being
traded. Nevertheless, the information
that OSHA is collecting and the
information that will be supplied in
response to the publication of the
proposed rule covering Hazardous
Waste Operations will be carefully
reviewed and analyzed to establish the
potential impacts of the final rale upon
international trade.
VL State Plan Stales
This Federal Register document adds
an interim final rule (section 1910.120.
"Hazardous Waste Operations and
Emergency Response"] to existing
Subpart H of 29 CFR Part 1910. OSHA's
general industry standards on
hazardous materials. The 23 States with
their own OSHA approved occupational
safety and health plans must develop a
comparable standard applicable to both
the private and public (State and local
government employees) sectors within
six months of the publication date of
this interim final rule or show OSHA
why there is no need for action. 04.
because an existing state standard
covering this ana ia already "at least as
effective" as the new Federal standard.
These states are Alaska. Arizona.
California. Connecticut (for state and
local government employees only).
Hawaii. Indiana. Iowa. Kentucky.
Maryland. Michigan, Minnesota.
Nevada. New Mexico. New York (for
state and local government employees^
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Federal Register / Vol. 51. No. 244 / Fnday. December 19. 1988 / Rales and Regulations 4J553
only). Norh Carolina. Oregon. Puerto
Rico. South Carolina. Tennessee. Utah.
Vermont. Virginia. Virgin Islands.
Washington, and Wyoming. Until such
time as a Hate standard is promulgated.
Federal OSHA will provide interim
enforcement assistance, as appropriate.
in these states.
List of Subjects in 29 CFR Part 1910
Containers. Drums. Emergency
response. Flammable and combustible
liquids. Hazardous material*. Hazardous
substances. Hazardous wastes.
Incorporation by reference. Materials
handling and storage. Personal
protective equipment Storage areas.
Training. Waste disposal.
VII. Immediate Effectiveness and
Absence of Node* and Comment
Section 128(e) of SARA specifically
provides that the "Secretary of Labor
shall issue interim final regulations
under this section within 8O day*. . ."
after dale of enactment. The express use
of the phrase -interim final regulations."
which in the rulemaking context
commonly describe* a rule issued
without notice and comment In
connection with the extremely limited
time frame provided by this section.
makes clear that Congress intended this
rule to be issued without the time-
consuming process of notice and
comment. The Agency, therefore.
concludes that neither the notice and
comment rulemaking provisions of the
OSH Act nor those of the
Administrative Procedures) Act are
applicable to the issuance of this interim
Final rule. The Agency also expressly
finds that "good cause" exists under 5
U.S.C 553(b)(B) for not providing node*
and comment because notica and
comment procedures, under these
circumstances, would be impractical
and contrary to the public interest.
Section I2fl(e) also expressly provides
that "Such interim final regulations snail
take effect upon issuance. . . ." OSHA
finds this specific direction of law
require* the Agency to issue this role
with an immediate effective date and.
further, constitutes good cause not to
delay the effective date of this rale until
30 days after publication under 5 U.S.C
553(d).
Authority
This document has been prepared
under the direction of John A.
Pendergras*. Assistant Secretary of
Labor for Occupational Safety and
Health. U3. Department of Labor. 200
Constitution Avenue NW, Washington.
DC Pursuant to section 128(e) of the
Superfund Amendments and
Reauthorization Act of 1986 (Pub. L.
99-499). Sections a and 8 of me
Occupational Safety and Health Act of
1970 (23 U.S.C 655. 957). Sections 3 and 4
of the Administrative Procedures Act (S
U.S.C 552(a|. 5S3). and Secretary of
Labor s Order 9-*3 (48 FR 35738). 29 CFR
Part 1910 is amended by adding a new
§ 1910.120. Hazardous Waste
Operations, as set forth below, effective
December 19. 1986.
Signed at Washington. DC this leib day of
December 1988.
Astmant Stcmary of Labor.
PART 1910— OCCUPATIONAL SAFETY
ANO HEALTH STANDARDS
1. The Authority citation for Subpart
H of Part 1910 is amended by adding the
following:
Authority: * • ' Section 1710.133 timed
under ih« •uibonty of Meaon 128U) of the
Supcrnind Amendments tnd lUauihacteatioa
Act of 1988 (Pub. L 99-488). Swoons 8 end 8
of the Occupational Safety end Health Act of
1970 (29 U.S.C. US. 897). MCtioiu 3 ttd 4 of
the Admifli»tr»dv« Procedure Act (S U.S.C
S52la|. S33I end SMrvury of Labor • Order 0-
83 (48 FR 15738).
2. Part 1910 of Title 29 of the Code of
Federal Regulations is amended by
adding a new i 1910.120 to read as
follows:
,1*10.120 Henraoua waste ogarattone
and •nMrooncy reeporae.
(a | Scops, application, and
definitions.—\\] Scope. This section
covers employers and employees
engaged in the following operations:
(i) Hazardous substance response
operation* under the Comprehensive
Environmental Response.
Compensation, and Liability Act of 1930
as amended (42 U.S.C 9601 at MO)
(CERCLA). inrhidlng initial
investigations at CERCLA sites before
the presence or absence of hazardous
substances has been ascertained:
(ii) Major corrective actions taken in
clean-up operations under the Resource
Conservation and Recovery Act of 1978
as amended (42 US.C 8901 «* jvoj
(RCRAfc
(iii) Operations involving hazardous
waste storage, disposal and treatment
facilities regulated under 40 CFR Parts
284 and 289 pursuant to RCRA. except
for small quantity generators and those
employers with less than 90 day*
accumulation of hazardous waste* as
denned In 40 CFR 28234;
(lv) Hazardous wasta operations sites
that have been designated for dean-up
by state or local governmental
authorities: and
(v) Emergency response operations for
releases of or substantial threats of
releases of hazardous substances and
post-emergency response operations for
such releases.
(2) Application, (I) All requirements of
Part 1910 and Part 1928 of Title a of the
Code of Federal Regulations aoo'v
pursuant to their terms to hazardoos
waste operations (whether covered by
this section or not). In addition the
provisions of this section apply to
operations covered by this section. IT
there is a conflict or overlap, the
provision more protective of employee
safety and health shall apply. 23 CFR
I910-5(c|(l) is not applicable.
(ii) All paragraphs of this section
except paragraph (o) apply to hazardous
substance response operations under
CERCLA. major corrective actions taken
in clean-up operations under RCRA.
post-emergency response operations.
and hazardous waste operations that
have been designated for dean-op by
state or local governmental authorities.
(iii) Only the requirements of
paragraph (o) of this section apply to
those operations involving hazardous
waste storage, disposal, and treatment
facilities regulated under 40 CFR Parts
284 and 285. except for small quantity
generators and those employers with
less than 90 days accumulation of
hazardous wastes as defined in 40 CFR
28ZJ4.
(iv) Paragraph (1) of this section
applies to emergency response
operations for releases of or substantial
threats of releases of hazardous
substances.
(3) Definitions— 'Buddy system "
means a system of organizing employees
Into work groups in such a manner that
each employee of the work group is
designated to observe the activities of at
least one other employee) in the work
group. The purpose of the buddy systeo
is to provide quick assistance to those
other employees in the event of an
'Decontamination ~ means the
removal of hazardous substances from
employees and their equipment to the)
extent necessary to preclude that
occurrence of foreseeable adverse)
health effects.
"Emergency response'* means
response to any occurrence which
results, or is likely to result in a release
of a hazardous substance due to an
unforeseen event.
'Established perniasibla expetur*
Hnut" means the inhalation or djersta!
permissible exposure limit specified in
29 CFR Part 1910. Sufapart Z. or if aoe«
is specified the ejiposuie limits in
-N1OSH Recommendations for
Occupational Health Standards'* datad
September 1988 incorporated by
reference, or if neither of the above U
specified, the standards specified by th«
American Conference of Governments]!
Industrial Hygienisu in their pobficattaa
Threshold Limit Values and EBeiosa'cad
Exposure Indices far 1388-37- dated
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43564 Federal Register / Vol. St. No. 244 / Friday. December 19. 1988 / Rules and Regulations
I96d incorporated by reference. or if
none o( the above it specified. • limit
based upon • published study or
manufacturers' safety data sheet
brought to the employer*! attention. The
two documenu incorporated by
reference are available for purchase
from the following:
NIOSH. Publication* Dissemination.
Division of Standards Development
snd Technology Transfer. National
Institute for Occupational Safety and
Health. 4078 Columbia Parkway,
Cincinnati. OH 45228. (313) 841-4287
American Conference of Governmental
Industrie! Hygierusta, 4500 Clenway
Ave_ Building D-r. Cincinnati. OH.
4S211-M30, (313) M1-78T1
and are available for inspection and
copying at the OSHA Docket Office.
Docket No, S-TBO. Room N-J871. 200
Constitution Av«_ NW, Washington,
ocama
"Hazardous tvbttaaem" means any
su balance designated or listed under (I)
through (iv) below, exposure to which
results or may result in adverse effects
on the health or safety of employees:
(i] any substance defined under
secnon 101(14) of CERCLA.
(ii) aoy biological agent and other
diseaae-causuoi agent as defined in
section HHtaM2! of CZRCLA,
(iii) any substance listed by the U.S.
Department of Transporuaon and
regulated as hazardous materials under
49 CFR 171.101 and appendices, and
(iv) hazardous waste.
~ftc=are\fca wests) "means (i) a waste
or combination of wastes as defined in
40 CFR 2SU. or (ii) those substances
defined in 49 CFR 1TLA
Hazardous i*este opetuouu " means
any opera noo involving employe*
exposure to hazardous wastes.
haiiraoui ntbttajT"^. or any
comhmaD'on of hazardous wmstee and
hazardous substances that are
conducted within the scope of this
standard.
Tieinj any facility or location at which
hazardous w-ajce operations within the
*CC-B* of uus standard take piece.
~.V?c. i. ^ *"<* SVP^ *n*-^ns a '
stixturs of rSsrmrals or a pathogen for
•raici tiers is statistically sigmQcaat
rneracs 'S**ed an at least one study
a cste •x rsraasc health e5ecrs may
wszcs jj-i LJJ-—soyes*. icxic or hisjaiy
hematopoielic system, and agents which
damage the lungs, skin. eyes, or mucous
membranes. Further definition of the
terms used above can be found in
Appendix A to 29 CFR 1910,1200.
"fDW'or "Immediately danqorous to
Ufa or health" means any condition that
poses an immediate threat to life, or
which is likely to result in acute or
immediate levero health effects. This
Includes oxygen deficiency conditions.
"Immediate *evere htalth effects"
means any acute clinical sign or
symptom of a serious, exposure-related
reaction manifested within 72 hours
after exposure to a hazardous
substance.
"Oxygen deficiency" means that
concentration of oxygen by volume
below which air supplying respiratory
protection must be provided. It exists in
atmospheres where the percentage of
oxygen by volume is less than 19J
percent oxygen.
"Site safety and health officer" means
the individual located on a hazardous
weste site who is responsible to the
employer and has the authority and
knowledge necessary to implement the
site safety and health plan and verify
compliance with applicable safety and
health requirements.
(b) GfnjiisLc5
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Federal Register / Vol. 51. No. 244 / Friday. December 19, 1988 / RuJes and Regulation* 43663
sub-contractor services for work in
hazardous waste operations shall inform
those contractors, sub-contractors, or
their representatives of any potential
fire, explosion, health or other safety
hazards of the hazardoua waste
operation that have been identified by
the employer.
(c| Site characterization and analysis.
(I) A preliminary evaluation of a site's
characteristics shall be performed prior
to site entry by a trained person to aid
in the selection of appropriate employee
protection method* prior to site entry.-
During site entry, a more detailed
evaluation of the site's specific
characteristics shall be performed by a
trained person to further identify
existing site hazards and to further aid
in the selection of the appropriate
engineering controls and personal
protective equipment for the tasks to be
performed.
(2) All suspected conditions that may
pose inhalation or skin absorption
hazards that are immediately dangerous
to life or health (IDLH) or other
conditions that may cause death or
jenous harm shall be identified during
the preliminary survey and evaluated
during the detailed survey. Example* of
such hazards include, but are not limited
to. confined space entry, potentially
explosive or flammable situations,
visible vapor cloud*, or areas where
biological indicators such aa deed
animals or vegetation-are located.
(3) Th|f following information to the
extent available shall be obtained hv
the employer prior to allowing
employees to enter a site;
(i) Location and approximate size of
the site.
(ii) Description of the response
activity and/or the job task to be
performed.
(Hi) Duration of the planned employe*
activity.
(iv) Site topography.
(v) Site accessibility by air and.roads.
(vi) Pathways for hazardoua
substance dispersion.
(vii) Present status and capabilities of
emergency response team* that would
provide assistance to on-site employee*
at the time of an emergency.
(viii) Hazardous-subatance* aad
health hazards involved or expected at
the site and their chemical and physical
properties.
(4) Personal protective equipment
(PPE1 shall be provided and used daring
initial site entry in accordance with the
following requirements:
(i) Based upon the results of the
preliminary site evaluation, an ensemble
of PFE shall be selected and used during
initial site entry which will provide
protection to a level of exposure below
established permissible exposure limits
for known or suspected hazardoua
substances and health hazards and will
provide protection against other known
and suspected hazards identified during
the preliminary site evaluation.
(ii| An escape self-contained
breathing apparatus of at-least five
minutes duration shall pe earned by
employees or kept available at their
immediate work station If positive-
pres«ure_self-com«tned breething
apparatus is not used aa part of the
entry ensemble. • -
(iil) If the preliminary site evaluation
does not producaLSuiflcient information
to identify the hazard* or suspected
hazards of the site an ensemble of Level
J.PPE shall be provided ae minimum
protection and direct reading
instruments shall be carried for
identifying IDLH condition*. (See
Appendix 8 for guideline* on Level B
protective equipment.)
(iv) Once the hazards of the site have
been positively identified, the
appropriate PPE shall be selected and
used in accordance with paragraph tgj
of this section.
(5) The following monitoring shall be
conducted during site entry when the
site evaluation produce* information
which show the potential for ionizing
radiation or IDLH conditions, or when
the site information i* not sufficient to
rule out these possible conditions:
(i) Monitoring for hazardou* levels of
ionizing radiation.
(ii) Monitoring the air with
appropriate test equipment for IDLH and
other conditions that may cause death
or serioua harm (combustible or
exploaive etmoaphere*. oxygen
deficiency, toxic substance*.)
(Ui) Visually observe for sign* of
actual or potential IDLH or other
dangerous condition*.
(0) Once the presence and
concentrations of specific hazardoua
substance* and health hazard* have
been established, the risk* associated
with these substance* shall be
identified. Employees who will be
working on the site shall be informed of
any risks that have been identified.
•tola niilri to consider Include, bat an
not limitsd to:
Exposures «xcMdina the appropriate
Thnshold Unit Values fTLVs). Permissible
Exposure Umlts (PELa). or RacomcoaBded
Exposure Umlts (RELaV
IDLH Cancanndoas.
Potential Skin Absorption aad IrnUdon
Sourcss.
Potential Eye Irritation Sources.
Expiation Saattdvlty and Flamaubility
Rang**. '
(7) Any information concerning.the
chemical, physical, and loxicolofjc
properties of each substance known or
expected to be present on site that i*
available to the employer and relevant
to the duties an employee is expected to
perform shall be mede available to all
employee* prior to the commencement
of their work activities,
(8) An ongoing air monitoring program
in accordance with paragraph (hi) of this
section shall be implemented after site
characterization has determined the site
is safe for the start-up of operation*.
(d) Sitf caatnL (1) A site control
program for preventing contamination of
employees shall be developed during the
planning stage* of a hazardou* weste
operation clean-up.
(2) The site control program shalL as a
minimum, include: A site map; sits) work
zones: die use of e "buddy system": site
rjimmnni«-«rtnn«- the standard operating
procedures or safe work practice*: and.
identification of nearest medical
assistance.
(e) Training. (1) All employees (such
as equipment operators and general
laborers) exposed to hazardoua
substance*, health hazards, or safety
hazards shall be thoroughly trained in
the following:
(i) Names of personnel and alternate*
responsible; for site safety end health:
(ii) Safety, health and other hazard*
present on the site:
(ill) Use of PPE
(iv) Work practice* by which the
employee can irini*r"»t risks from
hazards:
(v) Safe use of engineering control*
and equipment on the site:
(vi) Medical surveillance requirements
including recognition of:
tarns and
sign* which might indicate over
exposure to >«••»«•«<•? mad
(vii) Paragraph* (Cl through (K) of die
site safety and bealm plan eat forth ia
paragraph (iJ(2J(I1 of this section.
(2) All employees shall at the time of
job assignment leceive e fTi|ft*|giiBn of 40
hours of initial instructlonod thai site.
and a mintnmm pt three dare of i
Held experience under the direct
supervision of s trained, experien
supervisor. Workers who may be
exposed to unique or special hazard*
shall be provided additional training,
The lev«l of training provided shafl be
consistent with me employee's fob
function and responsibilities.
(3) On-site management aad
supervisors directly responsible for or
who supervise employees engaged ia
hazardous waste operation* shall
receive training as provided ia
paragraph (e)(l) and (e)(2) of this section
and at least eight additional hours of
specialized training on "•""gf'f sacfa
operations at the time of Job assignment.
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45666 Federal Register / Vol. 51. No. :u / Friday. December 19. 1988 / Rulea and Regulations
(41 Trainers jh«ll have received a
level of training higher than and
including the subject matter of the level
of instruction that they are providing.
(S| Employees shall not participate in
Held activities until they have been
trained to a level required by their job
function and responsibility.
(6) Employees and supervisors that
have received and successfully
completed the training and field
exoenence specified in paragraphs
(e|(ll. (e|(2) and (e)(3| of this section
shall be certified by their instructor as
having completed the necessary
training. Any person who has not be«n
so certified or meets the requirement* of
paragraph (e|(l) of this section shall be
prohibited from engaging in hazardous
waste operations after March 10.1967.
('} Employees who are responsible for
responding to hazardous emergency
situations that may expose diem to
hazardous substances shall be trained in
how to respond to expected
emergencies.
(8) Employees specified in paragraph
(e)(l) and managers specified in
paragraph (el(3) of thia section shall
receive tight hours of refresher training
annually on the item* specified in
paragraph (e)(l) of thia section and other
relevant topics.
(9) Employers who can show by an
employee's work experience and/or
training that the employe* has had
initial training equivalent to that training
required in paragraphs (eHl). (e)(2). and
(e|(3) of this section shall be considered
as meeting the initial training
requirements of those paragraph*.
Equivalent training 'ireludg* the training
that existing employees might have
already received from actual, on-site
experience.
(0 Medical iurreHIonce (1)
Employees covered. A medical
surveillance program shall be instituted
by the employer for
(i) all employees who are or may b*
exposed to hazardous substances or
health hazards at or above the
established permissible-exposure limits
for these substances, without regard to
the use of respirators, for 30 days or
more a year, or
[ii] all employees who wear a
respirator for 30 days or more a year, or
(iii) HAZMAT employees specified in
paragraph (1X4) of thia section while
engaged in hazardous waste operations
covered by this section.
(iv) The employer shall maka medical
examinations or consultations available
to ail employees who nay have been
exposed in an emergency situation to
hazardous substances at concentrations
above the permissible exposure limits.
(2} Frequency of medico/
examinations and consultations.
Medical examinations and consultations
shall also be made available by the
employer to each employee covered
under paragraph (0(1) of this section on
the following schedules:
(i) Pnor to assignment or for
employees covered on the effective date
of this standard a* specified in
paragraph (p) of this section.
(ii) Al least once every twelve months
for each employee covered.
(iii) Al termination of employment or
reassignment to an area where the
employee would not be covered if the
employee has not had an examination
within the last six months.
(iv) As soon as possible, upon
notification by an employe* either thai
the employee ha* developed signs or
symptoms indicating possible
overexposure to hazardous substances
or health hazards
(v) At more frequent times, if the
examining physician determine* that an
increased frequency of examination ia
medically necessary.
(3) Content of medical examinations
and consultations, (i) Medical
examination* required by paragraph
(f)(2) of this section shall include a
medical and work history with special
emphasis on symptoms related to the
handling of hazardous substances and
to fitness for duty including the ability to
wear any required PPE under conditions
(Law temperature extremes]) that may be
expected at the work site.
(ii) The content of medical
examinations or consultations made
available to employee*- pursuant to
paragraph (f) shall be determined by the
examining physician.
(4) Examination by a physician and
rf>yyy All medical •^••**ip**fyrMT *^**j
procedures shall be performed by or
under the supervision of a Ucansed
physician. *n*i f h^tl be provided without
cost to the employee; without loea of
pay. and at a reasonable time and pUca.
(5) Information provided to C/M
physician. Toe employer shall provide
the following information to the
examining physician:
(i) A copy of this standard and its
appendices.
(ii) A description of the employee's
duties as they relate to the employee's
exposures.
(iii) The employee's exposure levels or
anticipated axpoeur* levels.
(iv) A description of any personal
protective equipment used or to be. used.
and
(v) Information from previous medical
examinations of the employee which is
not readily available to the »^-•*"«"«"g
physician.
(8| Physician's written opinion, (i)
emoloyer shall obtain and furnish t
ersaloyee with a copy of a written
opinion from the examining physician
containing the following:
(A) The results of the medical
examination and tests.
(B) The physician's opinion as to
whether the employee has any detected
medical conditions which would place
the employee at increased risk of
material impairment of the employee's
health.
(C) The physician's recommended
limitations upon the employees assigned
work.
(D) A statement that the employee has
been informed by the physician of the
results of the medical examination and
any medical conditions which require
further examination or treatment.
(ii) The written opinion obtained by
the employer shall not reveal specific
findings or diagnoses unrelated to
occupational exposure.
(7) Recordkeeping. (i) An accurate
record of the medical surveillance
required by paragraph (f)(1) of this.
section shall be retained. Thia record
shall be retained for the period specified
and meet the criteria of 29 CFR191020.
(ii) The record required in paragraph
(0(S)(i) of this section shall include at
least the following information:
(A) The name and social security
number of the employee
(B) Physicians' written opinion*;
(Q Any employe* medical complaints
related to exposure to hazardous
substances:
(D) A copy of the information which
shall be provided to the examining
physician by the employer, with the
exception of the standard and its
appendices.
(iii) The employer shall ensure that
this record is retained for the period
specified in 29 CFR 191020.
(g) Engineering controls, work
practices, and personal protectir*
equipment for employee protection—(1)
Engineering controls, work practices
and PPE. (i) Engineering controls and
work practices shall be instituted to
reduce and maintain employee exposure
to or below the permissible exposure)
limits of those hazardous substance*
regulated by 29 CFR Part 1910. Subpart
Z. except to the extent that such
controls and practice* an not feasible.
Nora riijlrmnni cnatroU which may be
fusible u* tfa* as* of pniiiiriT«fl cab* or
control booths on equipment, and/or the use
of remotely operated material handling
•quipmut. Work practice* which may be
feasible «r» ramovmf all aaoMMaaal
employ*** boat potential txpenra during
epvfues; of dram*, wttttaf down dastv
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Federal Raipster / VoL 51. No. 244 / Friday. December 19. 1986 / Rules and Regulations 45667
•ipnruliuni and loaning employe*! upwind of
possible hazards.
(ii| Whenever engineering control*
anil work practices are not feasible. PPE
shall be used to protect employees to
reduce exposure to below established
permissible exposure limits.
(iii) The employer shall not implement
a schedule of employe* rotation •• a
means of compliance with permissible
exposure limits.
(2) Engineering controls, work
practices, and personal protective
equipment for substances not regulated
in Subpart Z. An appropriate
combination of engineering controls.
work practices, and personal protective
equipment shall be established to
reduce and maintain employee exposure
to or below the established permissible
exposure limit for hazardous substances
not regulated by 29 CFR Part 1910.
Subpart Z and health hazards.
|3| Personal protective* equipment
selection. (i| Personal protective
equipment (PPEJ shall be selected and
used which will protect employees from
the hazards and potential hazards they
are likely to encounter as identified
during the site characterization and
analysis.
(ii) Personal protective equipment
selection shall be based on an
evaluation of the performance
characteristics of the PPE relative' to the
requirements and limitations of the site
the task-specific conditions and
duration, and the hazards and potential
hazards identified at the sit*.
(iii) Positive pressure self-contained
breathing apparatus, or positive
pressure air-line respirators equipped
with an escape air supply shall be nsed
in IDLH conditions.
(iv).Totally-encapsulating chemical
protective suits (Level A protection)
shall be used in conditions where
contact of the skin by the hazardous
substance may result in an IDLH
situation.
I v| The level of protection provided by
PPE selection shall be increased when
additional information or site conditions
show that increased protection is
necessary to reduce employee exposure
below established permissible exposure
limits for hazardous substance and
health hazards. (See Appendix B for
guidance on selecting PPE ensembles.)
Not*.—The level of protection provided
may be decreased when additional
information or in* condition* (how that
decreased protection will not result in
huzardou* exposure* to employee*.
(vi) Personal protective equipment
shall be selected and used to meet the
requirement] of 29 CFR Part 1910.
Subpart L and additional requirements
specified in this section.
(4) Totally-encapsulating chemical
protective suits, (i) Totally-
encapsulating suit materials used for
Level A protection shall protect
employees from the particular hazards
which are identified during site
characterization and analysis.
(ii) Totally-encapsulating suits shall
be capable of maintaining positive air
pressure. (See Appendix A.)
(iii) Totally-encapsulating suits shall
be capable of preventing inward lest gas
leakage of more than OJ percent. (See
Appendix A.)
IS) Personal protective equipment
(PPE) program. A personal protective
equipment program shall be established
for hazardous waste operations. The
PPE program shall address the following
elements:
(i) Site hazards.
(ii) PPE selection.
(iii) PPE use.
(iv) Work mission duration.
(v| PPE maintenance and storage.
(vi) PPE decontamination.
(vii) PPE training and proper fitting.
(viii) PPE donning and doffing
procedures.
(ix) PPE inspection.
(x) PPE in-use monitoring.
jxi) Evaluation of the effectiveness of
the PPE program, and
(xii) Limitations during temperature
extremes.
(h) Monitoring. (1) Air monitoring
shall b« used lo identify and quantify
airborne levels of hazardous substance*
in order to determine the appropriate
level of employee protection needed on
site.
(2) As a first step, air monitoring shall
be conducted to identify any IDLH and
other dangerous situations, such as the
presence of flammable atmospheres.
oxygen-deficient environments, toxic
levels of airborne contaminants, and
radioactive materials.
(3) As a minimum, periodic monitoring
shall be conducted when:
(i) Work begins on a different portion
of the site.
(ii) Contaminants other than those
previously identified art being handled.
(iii) A different type of operation is
initiated (e^. drum opening as opposed
to exploratory well drilling.)
(iv) Employees are ti«iuiiim leaking
drums or containers or working in areas
with obvious liquid contamination (e.g_
a spill or lagoon.)
(4) High-risk employees. t.g_ those
closest to-the source of contaminant
generation, shall receive personal
monitoring sufficient to characterize
employee exposure.
(i) Informational programs—{\}
General. As part of the safety and
health program required in paragraph
(b |(1) of this section, the employer shall
develop and implement a site safety and
health plan meeting the requirements of
paragraph (i)(2) of this section for each
hazardous waste operation.
(2) Site safety and health plan. The
site safety and health plan, which shall
be available on the site for inspection by
employees, their designated
representatives, and OSHA personnel.
shall address the safety and health
hazards of each phase of site operation
and include the requirements and
procedures for employee protection.
(i) The site safety and health plan, as
a minimum, shall address the fallowing:
(A) Names of key personnel and
alternates responsible for site safety and
health and appointment of a site safety
and health officer.
(B) A safety and health risk analysis
for each site task and operation.
(C) Employee training assignments.
(O) Personal protective equipment to
be used by employees for each of the
site tasks and operations being
conducted.
(El Medical surveillance requirements.
(F) Frequency and types of air
monitoring, personnel monitoring, and
environmental sampling techniques) and
instrumentation to be used. Methods of
maintenance and calibration of
monitoring and sampling equipment to
be used.
(C) Site control measures.
(H) Decontamination procedures.
(I) Site's standard operating
procedures.
(J) A contingency plan meeting the
requirements of paragraphs (1J(1) and
(1)(2J of this section for safe and
effective responses to emergencies
including the necessary PPE and other
equipment.
(K) Confined space entry procedures.
(ii) Pre-entry briefings shall be held
prior to initiating any site activity and al
such other times as necessary to ensure
that employees are apprised of the site
safety and health plan and that it is
being followed.
(iii) Inspections shall be conducted by
the site safety and health officer or. la
the absence of that individual, another
individual acting on behalf of the
employer as necessary to determine the
effectiveness of the site safety and
health plan. Any deficiencies in the
effectiveness of the sits safety and
health plan shall be corrected by the
employer.
(j) Handling drams and container*
(1) General, (i) Drums and containers
used during the ciesn-up shall maet the
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43668 Federal Reyatar / Vol. 51. ,\o. 24-4 / Friday. December 19. 1986 / Rulea and Regulations
appropriate DOT. OSHA. and EPA
revulations for the wastes that they
contain.
|ii) Drums and containers shall bn
inspected and their integrity shall be
j.oured prior to being moved. Drums or
containers thai cannot be inspected
before being moved because of
•nacceasible storage conditions shall be
moved to an accessible location and
inspected prior to further handling.
(iiil Unlabeied drums and containers
shall be considered to contain
hazardous substances and handled
accordingly until the contents are
positively identified and labeled.
(iv) Site operations shall be organized
to minimize the amount of drum or
container movement.
(v| Prior to movement of drums or
containers, all employees exposed to the
transfer operation shall be warned of
the potential hazards associated with
the contents of the drums or containers.
(vi) U.S. Department of Transportation
specified salvage drums or containers
and suitable quantities of proper
absorbent shall be kept available and
used in areas where spills, leak*, or
ruptures may occur.
(vii) Where maior spills may occur, a
spill containment program shall be
implemented to contain and isolate the
entire volume of the hazardous
substance being transferred.
(viii) Drums and containers that
cannot be moved without rupture.
leakage, or spillage shall be emptied into
a sound container using a device
classified for the material being
^transferred.
li.x) A ground-penetrating system or
other type of detection system or device
shall be used to estimate the location
_and depth of drums or containers.
(x| Soil or covering material shall be
removed with caution to prevent drum
or container rupture.
(xi) Fire extinguishing equipment
meeting the requirements of 29 CFR Part
1910. Subpart L shall be on hand and
ready for use to control small fire*.
(Z) Opening drams and containers.
The following procedure* shall be
followed in areas where drum* or
containers are being opened:
(i) Where an airline respirator system
is used, connection* to the bank of air
cylinders thall be protected from
contamination and the entire system
shall be protected from physical
damage.
(ii) Employees not actually involved in
opening drums or containers shall b«
kept a safe distance from the drums or
containers being opened.
(iii) If employee* must work near or
adjacent to drum* or container* being
opened, a suitable shield that doe* not
interfere with the work operation shall
be placed between the employee and
the drums or containers being opened to
protect the employee in case of
accidental explosion.
(iv) Controls for drum or container
opening equipment monitoring
equipment, and fire suppression
equipment shall be located behind the
explosion-resistant barrier.'
(v| Material handling equipment and
hand tools shall be of the type to
prevent sources of ignition.
(vi) Drums and container* shall b«
opened in such a manner that excas*
interior pressure will be safely relieved.
If pressure cannot be relieved from a
remote location, appropriate shielding
shall be placed between the employe*
and the drums or containers to reduce
the risk of employee injury.
(vii) Employee* shall not stand upon
or work from drum* or container*.
(3) Electrical material handling
equipment. Electrical material handling
equipment used to transfer drum* and
containers shall:
(i) Be positioned and operated to
minimize sources of ignition related to
the equipment from igniting vapors
released from ruptured drum* or
containers, or
(ii) Meet the requirement* of 29 CFR
1910.307 and be of the appropriate
electrical classification for the material*
being handled.
(4) Radioactive wastes. Drum* and
containers containing radioactive
waste* shall not be handled until such
time a* their hazard to employee* i*
properly assessed.
(S) Shack sensitive wastes.
Caution: Shipping of shock Miuinva
wasm may b« prohibited und*r US.
D«p«rtnj«nt of Tr»n*porttttoo regulation*.
Employers tod thnr shipper* toouid r»f«r to
40 CFR inn tad tTJ-Sa
As a minimum, the following special
precaution* shall be taken when drum*
and containers containing or suspected
of containing shock-*en*itive waste* are
handled:
(i) All non-essential employee* shall
be evacuated from the area of transfer.
(ii) Material handling equipment shall
be provided with explosive containment
device* or protective shield* to protect
equipment operator* from exploding
containers.
(iiil An employe* alarm system
capable of being perceived above
surrounding light and noiM condition*
shall be u*ed to signal tha
commencement and completion of
explosive watte handling activities,
(iv) Coutinuou* communication* (Le..
portable radio*, hand signal*.
telephones, a* appropriate) shall be
maintained between the employee
charge of the immediate handling.
and the site safety officer or coaur
post until such time as the handling
operation is completed. Communication
equipment or methods that could caiu«
shock sensitive materials to explode
shall not be used.
(v) Drums and containers under
pressure, as evidenced by bulging or
swelling, shall not be moved until such
time a* the cause for excel* pressure ii
determined and appropriate
containment procedure* have been
implemented to protect employee* from
explosive relief of the drum.
(vi) Drum* and containers containing
packaged laboratory wastes shall be
considered to contain shock-sensitive or
explosive material* until they have bean
characterized.
(8) Laboratory waste packs. In
add!tlon to the requirement* of
paragraph (j)(5) of this section, the
following precaution* shall be taken, at
a minimum, in handling laboratory
waste packs (lab pack*):
(i) Lab pack* shall be opened only
when necessary and then only by an
individual knowledgeable in the
inspection, classification, and
segregation of the containers within the
pack according the hazard* of the
waste*.
(il) If crystalline material la noted |
any container, the content* shall b«
handled a* a shock-tenaitive wa*t* unui
the content* are identified.
[7] Sampling drums and containers.
Sampling of container* and drum* shall
be done in accordance with a sampling
procedure which i* part of the site
safety and health plan developed for
and available to employee* and other*
at the specific worksite.
(8) Shipping and transport (i) Drum*
and containers shall be identified aad
classified prior to packaging for
shipment
(ii) Drum or container staging anas
shall be kept to the paininni^n number
necessary to safely identify and classify
materials and prepare them for
transport
(iii) Staging area* thall be provided
with adequate access and egret* route*.
(iv) Bulking of hazardous wastes shall
be permitted only after a thorough
characterization of the material* ha*
been completed.
(9) ran* and rau/r procaa'urec. (1)
Tanks and vaults containing hazardous
substance* ihall be handled in a manner
similar to that for drums and containers.
taking into consideration, the size of the
tank or vault
(ii) Appropriate tank or vault entry
procedures meeting paragraph
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Federal Register / Vol. 51. .Vo. C44 / Friday. December 19. 1988 / Rules -md Reflations 45669
(i)C)(i)(K) of this section shall be
followed whenever employee! must
vnter • tank or vault
(k) Decontamination. (1) A
decontamination procedure shall be
developed, communicated to employee*
and implemented before any employees
or equipment may enter areas on site
where potential for exposure to
hazardous substances exists.
(2) Standard operating procedures
shall be developed to minimize
employee contact with hazardous
substances or with equipment that has
contacted hazardous substance*.
(3) Decontamination shall b*
performed in areas that will minimira
the exposure of uncontaminated
employees or equipment to
contaminated employee* or equipment
(4) All employeea leaving a
contaminated area shall be
appropriately decontaminated: all
clothing end equipment leaving a
contaminated area shall be
appropriately disposed of or
decontaminated.
(5) Decontamination procedure* shall
be monitored by the sit* safety and
health officer to determine their
effectiveness. When such procedure*
are found to be ineffective, appropriate)
stepa shall be taken to correct any
deficiencies.
(0) All equipment and solvents used
for decontamination, shall be
decontaminated or disposed of properly.
(7) Protective clothing and equipment
shaU be decontaminated, cleaned.
laundered, maintained or replaced aa
needed to maintain their etTectiveneM.
(8) Impermeable protective rtntttmy
which contacts or is likely to have
contacted hazardous subetanca* shall
be decontaminated before being
removed by the employe*.
(9) Employeea who**) non-
Lmpermeable clothing become* wetted
with hazardous substance* shall
immediately remove that clothing and
proceed to shower. The clothing shall b*
disposed of or decontaminated before it
is removed from the work zone).
(10) Unauthorized employee* shall not
remove protective clothing or equipment
from change rooms.
(11) Commercial laundrie* or cleaning
establishments that decontaminate)
protective clothing or equipment shall
be informed of the potentially harmful
erf ecu of exposures to hazardous
substances.
(12) Where the decontamination
procedure indicate* a need for shower*
and change rooms, they shall b«
provided and meet the requirements of
29 CTR 1910.141.
(I) Emergency response—(i) GtneraL
(i) An emergency response plan shall b«
developed and implemented to handle
anticipated on-fite emergencies prior to
the commencement of hazardous waste
operations. Emergency response
activities to all other hazardous waste
operations shall follow an emergency
response plan meeting the requirements
of this section.
(ii) Elements of on emergency
response plan. The employer shall
develop an emergency response plan for
on-site and off-site emergencies which
shall address, a* a minimnmj fat
following:
(A) Pre-emergency planning.
(B) Personnel role*, line* of authority.
training, and communication.
(CJ Emergency recognition and
prevention.
(D) Safe diatancee and place* of
refuge.
(E) Site security and control.
(F) Evacuation route* and
procedure*.
(C) Decontamination.
(HI Emergency medical treatment
and first aid
(I) Emergency alerting and response
procedure*.
(J) Critique of response and follow-
up.
(JQ PPE and emargency equipment
(2) On-tit* emergency response (i)
Training. Training for site emergency
response shall be conducted in
accordance with paragraph (a) of this
section.
(ii) Procedures; for handling sitm
emergency incidents. (A) In addition to
the element* for the emargency response
plan required in paragraph (1)(1)(U)
above, the following element* shall be
Included for site emergency response
plans:
[I] Site topography, layout and
prevailing weather condition*.
(2} Procadur** for repotting incident*
to local state, and federal governmental
agenoee.
(B) The sit* emergency re*ponM plan
shall b* a separata section of the Sita
Safety and Health Plan.
(Cl Th* sit* emergency response plan
shall be compatible and integrated with
the disaster. Ore and/or emergency
response plans of local state, and
federal agencies.
(D) The sita emergency response- plan
shall be rehearsed regularly aa part of
>K^ nwmrmll trminm^ pfauyam JQf site
operation*.
(E) The sit* emergency response plan
shall be reviewed periodically and, a*
necassary. be amended to keep it
current with new or >*H«fij<^ jjta
conditions or information.
(F) An employee alarm system shall
be installed in accordance with 29 CFR
1910.105 to notify employee* of an on-
3i(s emergency situation, to stop work
activities if necessary, to lowar
background noise in order to speed _
communication, and to begin emergency
procedures.
(C) Baaed upon the information
available at time of the emergency, the
employer shall evaluate the incident and
the site response capabilities and
proceed with the appropriate steps to
implement the on-sit* emergency
response plan.
(3) Off-site emergency response— {1}
Training. Training for handling
emergency responses involving
hazardous substances shall be
conducted on a monthly basis and shall
be at least 24 hours annually. The
training shall include as a minimum
recognition of hazards, selection, care.
and use of personal protective
equipment and safe operating
procedures to be used at the incident
scene.
(ii) Procedures far handling off-lit*
emergency incidents. (A) The senior
officer responding to an incident
involving a hazardous substance or
waste shall establish an Incident
Command System (ICS). All emergency
shall be coordinated and controlled
through die individual in charge of th*
ICS.
(B) The individual in charge of th* ICS
shall identify, to the extent possible, all
hazardous substance* or condition*
present
(C) Based on the hazardous
substance* and/ or condition* present
the individual in charge of the ICS shall
implement appropriate emergency
operations, and assure that the personal
protective equipment worn ia
appropriate for the hazard* to o*
encountered. However, personal
protective equipment shall meet at a
tfam criteria contained in 29
CFR 1910-138(e) when worn while
performing fire fighting operations
beyond the incipient stage.
(D) Self-contained breathing
apparatus shall be worn at all timrv
during emergency operation* involving
exposure to hazardous substances) or
health hazard*. After October 18. 1988
only positive pressure self-contained
respirators shall be used.
(E) The individual in charge of dw ICS
shall limit ma number of emergency
response personnel at tne emergency
site to those who are actively
performing emergency operation*.
However, operations in hazardous areaa
shall be performed using the buddy
system in group* of rwo or more.
(F) Back-up personnel shall o*
standing by with equipment ready to
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-1J670 Federal Register / Vol. 51. No. 244 / Friday. December 19. 1988 / Rules and Regulations
provide assistance or rescue. Qualified
basic life support personnel as a
minimum, shall also be standing by with
medical equ:pmcn( and transportation
capability.
(C) The individual in charge of the ICS
shall designate a safety officer, who is
knowledgeable in fire fighting or rescue
operations and hazardous substance
handling procedures, with specific
responsibility to identify and evaluate
hazards and to provide direction with
respect to the safety of operations for
the emergency ai hand.
(H) When activities are judged by the
safety officer to be unsafe and/or to
involve an imminent danger condition.
the safety officer shall have the
authority to alter, suspend, or terminate
those activities. The safety officer shall
immediately inform the individual in
charge of the ICS of any actions token to
correct these hazards at an emergency
scene.
(I) After emergency operations have
terminated, the individual in charge of
the ICS shall implement appropriate
decontamination procedures.
(4) Hazardous materials teams
(HAZbtAT). (i) Employees who are
members of the HAZMAT team.
employees designated by the employer
to plug, patch or otherwise temporarily
control or stop leaks from containers
which hold hazardous substances or
health hazards shall be given training in
accordance with paragraph (I)(3J of this
section that includes the care and use of
chemical protective clothing and
procedures to be fallowed when
working on leaking drums, containers.
tanks, or bulk transport vehicles.
(ii) Members of HAZMAT teams shall
receive an annual physical examination
by a licensed physician and be provided
medical surveillance as required In
paragraph (f) of this section.
(iii) Personal protective clothing and
equipment to be used by HAZMAT team
members shall meet the requirements of
paragraph (gj of this section.
(iv) Approved self-contained
compressed air breathing apparatus may
be used with approved cylinders from
other approved self-contained
compressed air breathing apparatus
provided that such cylinders are of the
same capacity and pressure rating. All
compressed air cylinders used with self-
contained breathing apparatus shall
meet U-S. Department of Transportation
and National Institute for Occupational
Safety and Health criteria.
[5] Post-emergency response
operations. Upon completion of the
emergency response, if it is determined
that it is necessary to remove hazardous
substances, health hazards and
matenalf contaminated with them such
as contaminated soil or other elements
of the natural environment, then such
operations shall meet all the
requirements of paragraphs (b) through
(n| of this section.
(m) Illumination. Work areas shall be
lighted to not less than the minimum
illumination intensities listed in Table
H-102.1 while any work is in progress:
TABLE H-102.1.—MINIMUM ILLUMINATION
INTENSITIES IN FOOT-CANOLES
j ...
i ..
30
(n| Sanitation at temporary
workplaces—(1) Potable water. (1) An
adequate supply of potable water shall
be provided on the site.
(ii) Portable containers used to
dispense drinking water shall be
capable of being tightly closed, and
equipped with a tap. Water shall not be
dipped from containers.
(iii] Any container used to distribute
drinking water shall be clearly marked
as to the nature of its contents and not
used for any other purpose.
(iv) Where single service cups (to be
used but once) arc supplied, both a
sanitary container for the unused cups
and a receptacle for disposing of the
used cups shall be provided.
(Z)ffonpotable water, (i) Oudets for
nonpotable water, such as water for
industrial or firefighting purposes shall
be identified to indicate clearly that the
water is unsafe and is not to be used for
drinking, washing, or cooking purposes.
(ii) There shall be no cross-
connection, open or potential, between a
system furnishing potable water and a
system furnishing nonpotable water.
(3) Toilets facilities, (i) Toilets shall
be provided for employees according to
Table H-102-2.
TAB** H-iotl—Toiurr FACUTOS
M- 102.2. —
Continued
.— On* «•« MM tra i ,
|
On*
. %Mimi I On. DM •«! n < «*
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Federal Register / Vol. 51. No. 244 / Friday. December 19. 1066 / Rules and Regulations
43671
|5| Develop and implement a training
program for employees involved with
hazardous waste operations to enable
each employee (o perform (heir assigned
duties and functions in a safe and
healthful manner so as not to endanger
themselves or other employees. The
initial training shall be for 21 hours and
refresher training shall be for eight
hours annually.
(p| Start-up dates—{l\ Training and
medical provisions. Initial training and
medical surveillance as specified by
paragraph (e) and (f) of this section shall
bu commenced on the effective date of
this standard, and be fully implemented
as soon as possible but no later than
March 18. 1987. Employees may
continue in their work assignments until
March IS. 1987 though training and
medical examinations have not been
completed so long as all feasible
training and examinations have been
completed.
(2) Safety and health pray ram. The
employer shall develop and implement a
safety and health program as required
by paragraph (b|(l) of this section as
soon as is feasible and have it
completed and implemented no later
than March 18. 1987.
(3) Engineering controls, work
practices, and personal protective
equipment, (i) The engineering controls.
work practices and personal protective
equipment required by paragraph. (g)(2)
of this section shall be implemented as
soon as feasible and implementation
shall be completed no later than March
18.1987.
(ii) The engineering controls, work
practices and personal protective
equipment required by paragraph (g)(l)
of this section are existing requirements
of other OSHA standard* and continues)
to be required from the effective date of
this standard.
(4) Site safety and health plan. The
site safety and health plan required by
paragraph (i)(2) of this section shall b«
completed as soon aa feasible but no
later than February 18.1987.
(5) Certain operations conducted
under RCRA. The requirements
specified by paragraph (o) of this section
shall be instituted by March 18.1987.
(8) Other requirements. Requirements
of this standard which do not have a
separate start-up data and have not
been required by other OSHA standards
shall be carried out from the effective
date of this standard.
(7) .Veur operations. Operations
covered by this section which an
starred after March 18.1987. shall be in
compliance with this section from the
start of their operation.
.Appendices lo \ 1910.120— Hazardous Waele
Operation* «nd Emergency Response)
Now. — The fol'iiwinj appendices s*r;c at
non-mandatory yuia'elinss to assist
employees and employers in co
-------
45672 Federal Register / Vol. 51. No. 2t4 / Friday. December 19. 1986 / Rules and Regulations
learns, closures, lens gaskets. glove-to-«leev«
loints. etc.) with • mild soap and water
solution. Observe th« mil for (ha formation of
soap bubbles, which is an indication of a
leak. Repair all identified leak*.
~ 2 Reiesi the TECP suit as outlined in
Ten procedure 9.0. _
8.0—Report
8.1 Eaoh TECP suit tested by this practice
shall have ih« following mformauon
recorded.
8.1.1 Unique identification number
identifying brand name, datt of purehaae.
material of construction, and umqiM fit
features: e.g_ special breathing apparatus.
8.1.2 Th* actual value* for test presaurea.
A. E. and C shall b* recorded aloof with (ho
specific observation OHM*. If the (tiding
pressure |C) is leva than SOX of th» t*st
pressure |B) thai suit shall b* identified aa
faiiing the test. When possible. lha> specific
leak location shall be identified in the, test
record*. Rataat pressure data shall be
recorded aa an additional test.
8.1-3 The source of the teal apparatus
used shall ba identified and lh« sensitivity of
the pressure gauge shall'ba recorded.
8.1.4 Records shall b« kept for each
pressure test even if repairs ara being made
at the test location.
Giutioa
Visually inspect all parti of tha suit to be
sure they are positioned correctly and
secured tightly before putting tha suit back
into service. Special ear* should b« taken to
examine each exhaust valve to make sura it
is not blocked.
Care should also be exercised to assort
that lira inside and outside of tha> suit la
completely dry before it la put into storage.
B. Faily-EncapiuJaud Suit Qualitative L*ak
Test
1.0—Scop*
1.1 This practice semi-qualitatively testa
gas tight totally-encapsulating chemical
protective suit integrity by detecting inward
leakage of ammonia vapor. Sine* no
modifications are mad* to the suit to carry
out thia test the result* from Una practice
provide a realistic teat for tha integrity of thai
en tire suit.
1.2 Resistance of the suit materials to
permeation, penetration, and degradation la,
not determined by this last method.
10—Description of Term*
2.1 Totally-encapsulated chemical
protective suit (TECP stnl)—A full body
garment which is conaaucttd of protective
clothing matarulat coven (ha wearer's torso.
head. anna, and lag*; may cover thai wearer's
hands and faat with tightly attached glove*
and boots: completely cndoaea thai wearer by
itself or In combination with In* wearer's
respiratory equipment, glove*, and boots,
12 Pretectiv* clothing material—Any
material or combination of matariaia used in,
an item of dothing for tha purpose) of
isolating parts of the body from direct contact
with a potentially hazardous liquid or
gaseous chemicals.
ZJ ~Cu tighsT—for tha purpose of Una
practice the limited flow of a gas under
praisnra from the insirl* of a TECP suit t»
atmosphere *' a prescribed pressure and time
interval.
2.1 "Shall"—This term indicates a
mandatory requirement.
2J "Shouid"—This term indicates a
recommendation or that which is advised but
not required.
18 "May"—This term is used to stale, a
permissive use or an alternative method lo a
specific requirement.
2.7 Intrusion Coefficient—A number
expressing the level of protection provided by
a gas tight totally-encapsulating chemical
protective suit. The intrusion coefficient is
calculated by dividing the test room
challenge agent concentration by the
concentration of challenge agent found inside
the sun. The accuracy of the intrusion
coefficient is dependent on the challenge
aeent monitonna methods. The larger the
intrusion coefficient the greater the protection
provided by the TECP suit.
3.0—Summary of Recommended Practice
3.1 The volume of ammonia solution
required to generate the lest atmosphara is
determined using the directions outlined in
9.1. Tha suit is donned by a person wearing
the appropriate respiratory equipment
(normally a self-contained breathing
apparatus) and worn inside the enclosed lest
room. The ammonia solution is taken by the
suited individual into the test room and
poured into an open plastic pan. A two-
minute evaporation period ia observed before
the test room concentration ia measured
using a high rang* ammonia length of stain
detector lube. When tha ammonia reach** a
concentration of between 100O and 1200 ppm,
the suited individual starts a standardized
exercise protocol to stress, and flex the suit
After this protocol ia completed tha leal room
concentration is measured again. The suited
individual ezila tha last room and his stand-
by parson measures tha ammonia
concentration inside the suit using a low
range ammonia length of stain detector tub*
or other more sensitive ammonia detector. A
stand-by person ia required to observe th*
lest individual during tha leal procedure, aid
tha parson in *^««»«n and doffing th* i n t*
suit and monitor tha suit ulterior. Th*
intrusion coefficient of th* suit can be
calculated by dividing th* average last area,
concentration by th* interior suit
concentration, A colorimetric indicator strip
of bramophanol blue is placed on tha inside
of tha suit face piece lane so that th* suited
individual is able to detect a color change
and know if tha suit has a significant leak. If
a color change ia observed the individual
should leave the test room immediately.
4.0—Required Supplies
4.1 A supply of concentrated ammonia (M
percent «mninninm hydroxide by weight).
4.2 A supply of bromophenoi/blue
indicating paper, sensitive to 5-10 ppm
ammonia or greater over a two-minuia period
of axpoaure.
4.3 A supply of high, range (OL5-1Q. volume
percent) and low range (5-700 ppm I detector
tubes for ammonia and the corresponding
sampling pump. Mora sensitive ammonia
detectors can be substituted for the low rang*
detector rube* to improve the sensitivity of
this pracnce.
4.4 A plastic pan (PVC) at least 12':I«-:|-
and a half pint plastic container (PVC) with
tightiy closing lid.
4 j Volumetric measuring device of al
least SO miilililers in volume with an
accuracy of al least — 1 milliliten.
5.0—Safely Precautions
S.1 Concentrated ammonia is a corrosivt
volatile liquid requiring eye. skin, and
respiratory protection.
J.2 Since the threshold limit value for
ammonia is 23 ppm. only persona wearing thi
appropriate respirator protection shall be in
the chamber. Normally only th* person
wearing the total-encapsulating suit will be
inside the chamber. A stand-by person shall
have a self-contained breathing apparatus, or
equivalent breathing apparatus, available lo
enter the test area should the sailed
individual need assistance.
5.3 A method lo monitor th* suited
individual must be used during thia teat.
Visual contact is tha simplest but other
methods using communication devices an
acceptable.
5.4 The test room shall be large enough lo
allow th* exercise protocol to be carried out
and ventilated lo allow for easy exhaust of
the ammonia test atmosphere after tha l*st(i|
are completed.
5_5 Individuals shall b* medically
screened for the use of respiratory protection
and checked for allergic* lo ammonia before
participating in thia test procedure.
8.0—Test Procedure
8.1.1 Measure th* teat area to th* Mare**?
foot and calculate ita volume in cubic feet.
Multiply th* test area volum* by O2
miililitan of ammonia par cubic foot of test
area volum* to determine th* approximate
volume of ammoni* required to generate 1000
ppm in th* lest area.
8.1.2 Measure this volum* from th* supply
of concentrated ammonia and place it into a
closed plastic container.
8.1J Place th* jar. several high rang*
ammonia detector rubes and the pump in the
claan teat pan and local* it near th* test ana
entry door so that th* suited individual baa
easy access to these supplies.
8.2.1 In a non-contaminated atmosphere.
open a presaaled ammonia indicator strip
and fasten on* end of th* strip to th* maid*
of suit face shield lens where it can be seen
by th* wearer. Car* shall be taken not to
contaminate th* detector part of th* Indicator
paper by touching iL A small piece of
masking tap* or equivalent should b* used lo
attach tha indicator strip to the interior of lha
suit face shielsL
8-2.2 If problems are encountered with
thia method of attachment the Indicator strip
can b* attached to th* ovtsid* of the
respirator face pi*ce being used during the
test. *•—«"i"g the face piece ia worn within
th* TECP smL
8J Don th* respiratory protective devic*
normally used with tha sine and than don tha
TECP suit to ba tasted. Check to b* sun all
opening* which are intended to be sealed
(zippers, glove*, etc.) ara completely sealed
DO NOT. however, prog off any venting
valves.
-------
Federal Raster / Vol. 51. No. 2H /Friday. December 19. 10B6 / Rules and Regulations 45673
8.4 Slep into the enclosed lest room such
41 j closet, bsthroom. or lest booth, equipped
with an exhaust fan. No «ir should b*
estimated from (he chamber dunng th« ten
because thu will dilute the ammonia
challenge concentrations.
6.5 Open the container with the pre>
measured volume of ammonia wi:hm the
enclosed ten room. and pour the liquid into
the empty plastic :en pan. Wait two minutes
to allow for adequate volatilization of the
ammonia. A small mixing fan can be used
near the evaporation pan to increase the
evaporation rate of ammonia.
8.8 Afler two minum a determination of
the ammonia concentration within the
chamber should be made using the high range
colonmatnc detector rub*. A concentration of
1000 ppm ammonia or greater shall be
generated before ihe exercises are started.
8.7 To test the integrity
-------
45674 Fadaral Rmpatar / Vol. SI. No. 244 / Friday. December 19. 1986 ' Rules and Regulations
It. Lev*! 8— Th* highest level of respiratory
protection it neces*ary but • lesser level of
ikin pratcction 11 needed.
Level 8 equipment: m«d aa appropriate
1. Pressure-demand, full-raeepieee self-
contained breatnilig apparalua JSCBA). or
pressure-demand luopiied air respirator with
escape SCBA (NIOSH approved).
2. Hooded chemical-resistant clothing
(overalls and long-sleeved jacket: coveralls:
one or iwo-piee* chemical-splash suit
disposable chemical-resistant overalls).
3. Coveralls'.
4. Cloves, outer, chemical-resistant.
S. Cloves, inner, chemical-resistant.
8. Boots, outer. chemical-reiislant itawl to*
and jnnnk.
r. Soot-coven, outer, chemical-resistant
(disposable)*.
8. Hard hat.
9. Two-way radios (worn inside
encapsulating suit).
10. Face shield. *
* Optional, ae applicable.
Ill Lin/ C—The concentration's) and
type) >) of airborne fub»tanca4S) la known
and the criteria for uamg air purifying
respirators an met.
Level C equipment: need ae appropriate
V. Full-face or half-mask, air purifying.
camsterequipped respirator* (NIOSH
approved).
Z. Hooded chemical-resistant dothing
(overalls; two-piece chemicaJ-fplash nic
disposable chemical-resistant overalls).
3. Coveralls'.
4. Clove*, outer, chemical-resistant.
S. Gloves. Inner. chermcaJ-retistant.
a. Boots (outer). chemical-retri»t«nt steel toe
and shank*.
7. Boot-corn*, outer, chemical-miaunt
(disooubler.
S. Hard hat
9. Escape mask*
10. Two-way radio* (worn ondar outaidai
protective dothmf).
tl. Face shield'
'Optional, a* applicable.
IV. Larel 0—A work uniform affording
micimai protection: used for nuisance
contamination only.
Level 0 equipment: used aa appropriate
1. Coveralls.
r Clove*'
3. Boots/shoe*. caetmcal-re-Mstaut sicei too
and shank.
4. Boot*, outer, dtetnicai-reautant
(dupOMfaleT
J. Safety glasses or chemical splash
goggles'.
8. Hard hat
7. Escape mask*.
8. Face shield*.
'Optional, *• cppocstbie*
Part B. The type* of hazards for which
levels A. B. C. and 0 protection ar*
appropriate an described below:
L Larel A—Level A protection should be
used when:
1_ The hazardoua subsume baa been
identified and require* tha highest levml of
protection for skin, eye*, and the respiratory
system based on either the measured (or
potential for) high eoocmtntion of
atmospheric vapors, vases, or particulars: or
the sue operations and work functions
involve a hign potential for iplesh.
immersion, or exposure to unexpected
vapors, oases, or partlculales of materials
(hat are harmful to skin or capable of being
absorbed through the intact ikin.
1 Substances with a high degree of hazard
to the skin are known or suspected to be
present and ikin contact la possible, or
3. Operations must be conducted In
confined, poorly ventilated ana* and the
absence of conditions requiring Level A have
not yet been determined.
IL Level B protection should be used when:
I. The type end atmospheric concentration
of substances have been identified and
require a high level of respiratory protection.
but leas skin protection.
Noie_Thu involve* atmosphere* with
IOLH concentrauona of specific substance*
that do not represent a seven skin hazard: or
thai do not meet the criteria for use of tur-
punfying respirators.
2. The aonosphen contain* l**a than 19-i
percent oxygen, or
3. The prtnanca of incompletely identified
vapor* or gases ta Indicated by a direct-
reading organic vapor detection inurnment.
but vapor* and gases era not suspected of
containing high levels of chemical* harmful to
skin or capable of bam*; absorbed through the
intact skin.
III. Level C prelection should be mad
when:
Tu The atmospheric contaminant*, liquid
splashes, or other direct contact will not
adversely affect or be absorbed through any
exposed skin.
Z. The type* of air contaminant* have been
identified, concentration* measured, and a
canister respirator I* available that can
remove the coatamtnanta. and
3. All criteria for the u*a of air-punfyinf.
respirators era met.
IV. Level D protection shoeJd b*> tued
when:
TL Tha atmoephere contain* no known
hazard, and
2. Work function* preclude splash**.
immersion, or the potential for unexpected
inhalation of or contact with hazardoua level*
of any chemical*.
Note.—A* stated before combination* of
personal protective equipment other than
those described for Level* A. B. C, and O
protection oay be uiuie appropriate and may
be u»ed to provide the proper levml of
protection.
1. Occopot
ilu
»rt» ebon-op
Pnymnt. Each h
effort will rtqwrv • tit* tpvcifle oc
SaaYcty and DVautn progno fHatowi by tn«t sitvt
coofcnfiattor or tztv dBpfoyv* • npfVaMiitatttTv.
Tn* pTvyno wu] CM dm^nvtx tor ton
pitifBCfiuii of Rnpfoykyvv
investigated lo provide information on how
such occurrences can be avoided In the
future. When inpme* or illneiie* occur on
the site, they will need le be investigated to
determine what need* to be done to prevent
this incident from occurring again. Such
information will need to be used a* f*edb*dc
on th* effectiveness of the program and th*
information tamed Into posltlv* st*p* to
prevent any reoccurrence. Receipt of
employee suggestion* or complaint* relating
to safety and health issues Involved with sit*
activities is also a feedback mechanism ih*l
need* to be uaed effectively to improve the
program and may serve in part aa an
evaluative lool(*|.
Z. Training. Tha employer U encouraged to
utilize those training program*, thai have been
recognized by tha National Institute of
Environmental Health Science* through It*
training grant* program. The** training and
educational program* ar* being developed
for th* employees who work directly with
hazardoua aubxanca*. For further
information about the** program* contact:
National Institute of Environmental Health
Sciences, P.O. Box 12233. Research Triangle
P«rk. NC Z7708.
Training program* for emergency service
onamzarion* are available from the U-S.
National Fin Academy. Emittaburg. MD i
the various state fin training school*. Tfil
-------
Fednral Rnyater / Voi. 31. No. 2*4 / Friday. December 19. 1986 / Rulea and Requlationa
456;
International Saeinv of Fire Service
Instructors. Ashland. MA is anoiner resource.
3. Decontamination. Decontamination
procedures should be tailored to the specific
hazards o( the me and will vary in
complexity, and number of itepi. depending
on the level of hazard and the employee *
exposure to the hazard. Decontamination
procedure* and PPE decontamination
method* will vary depending upon the
ipeeific substance, since one procedure or
method will not work for all substance*.
Evaluation of decontamination method* and
procedures should be performed, a*
necessary, to assure thai employee* are not
exposed to hazard* by reusing PPE.
Reference* in Appendix 0 may be uaed for
guidance in establishing an effective
decontamination program.
4. Emergency response plan*. Slates, along
with designated districts within the state*.
wiil be developing or have developed
emergency response plain*. The** district and
slate plan* are to be utilized in the
emergency response plan* called for In this
standard. Each employer need* to assure thai
it* emergency response plan i* compatible
with the local plan. In addition, the CAER
program of the Chemical Manufacturer*'
. Association (CMAI i* another helpful
resource in formulating an effective
<•< emergency .response plan. Also the current
•}' Emergency .Response Guidebook from the
' - U.S. Department of Transportation. CMA's
'•. CHfiMTREC and the Fire Service Emergency
Management Handbook should be used aa
resource* a* well.
.'; Appendix 0—Reference* to Appendix
• '• The following reference* to the Appendix
. may be consulted for further information on
the subject of this notice
t. OSHA Instruction OFO CPU 2,70—
January 23. I960. Sptcial Satphasis Program:
Hazaraous Want Sites.
1 OSHA Instruction OFO CPt 2-2.37A—
(anuary S3. ISM. Technical ,\intiance and
Guideline* for Superfvnd and Other
Hazardous Wane Site Activities.
3. OSHA Instruction DTS CPL 2.74—
fanuary 29.1988, Hazardous Watte Activity
Form. OSHA 17Z.
4. Hazardous Wane Inspections Reference
Manual. U.S. Department of Labor.
Occupational Safety and Health
Administration. 1906.
5. Memorandum of Understanding Among
the National Institute for Occupational Safety
and Health, the Occupational Safery and
Health Administration, the United Staua*
Coast Guard, and the United Slates
Environmental Protection Agency. Guidance
for Worker Protection Owing Hazardous
Waste Site Investigations and Clean-up and
Hazardous Substance Emergencies.
December 18.1900.
6. Motional Priorities List. 1*1 Edition.
October 1984: US. Envtronmenui Protection
Agency. Revised periodically.
7. The Decontamination of Response
Personnel. Field Standard Operatinjj
Procedure* (F3.O.P.) 7: U.S. Environmental
Protection Agency. Office of Emergency and
Remedial Response. Hazardous Response
Support Division. December 1964.
8. Preparation of a Site Safety Plan. Field
Standard Operating Procedure* (F.S.O-P.) 9:
U.S. Environmental Protection Agency. Office
of Emergency and Remedial Response.
Hazardous Response Suppon Division. April
1965.
9. Standard Operating Safety Guidelines
U.& Environmental Protectton Agency. Office
of Emergency and Remedial Response.
Hazardous Response Support Division. -
Environmental Response Team: November
1984.
10. Occupational Safety and Health
Guidance Manual for Hazardous Waste Site
Activities. National Institute for
Occupational Safety and Health (NIOSHJ.
Occupational Safety and Health
Administration (OSHA). U-S. Coast Guard
(USCC). and Environmental Protection
Agency (EPA): October 1984.
it. Protecting Health and Safety at
Hazardous Waste Site*: AM Overview. U-S.
Environmental Protection Agency. EPA/823/
9-89/000: September I96S.
12. Hazardous Waste Sites and Hazardous
Substance Emergencies. NIOSH Worker
Bulletin. U.S. Department of Health and
Human Service*. Public Health Servtau
Center* for Dlseaae Control. National
Ixutttnte for Occupational Safety and Health:
December 19(2.
13. Personal Protective Equipment for
Hazardous Materials Incidents: A Selection
Guide; U-S. Department of Health and Human
Service*. Public Health Service. Center* tor
Disease Control. National load rota for
Occupational Safety and Health: October •
1384.
14. fire Service Emergency Management
Handbook. Federal Emerfeacy Management
Agency. Washington. DC {anaary 1984.
IS. Emergency Response Guidebook. UJ^.
Department of Transponatton. WaaoiaftaaC
DC 1983.
(FR Doc. SS-2S«T1 Fu>d 12-16-8* ti57 ata|
-------
Interim Guidance on Compliance with
Applicable or Relevant and Appropriate
Requirements
-------
| • United Slates Environmental Protection Agency
Washington. DC 204«O
. oEPA OSWER Directive Initiation Reauest
1 Directive Number
9234.0-05
2. Originator Information
Name ol Contact Parson
Arthur Weissman
Meil Code
WH-5480
3. Till*
Interim Guidance on Compliance with Appl
Office
OSWER/OERR/OPM/PAS
Telepnone Number
382-2182
icable or Relevant and Appropriate Requirements
4 Summary of Directive undo** bn<,< *t,t,m»nt ot wposm) The guidance addresses tne requirement in
CERCLA, as amended by the Superfund Amendments and Reauthorization Act of 1986, that
remedial actions comply with applicable or relevant and appropriate requirements (ARARs)
of Federal laws and more stringent, promulgated State laws. The guidance describes how
requirements are generally to be identified and applied, and discusses specifically
compliance with State requirements and certain surface water and groundwater standards.
S. Keywords
Superfund, CERCLA, SARA, Other
environemtnal requirements. Compliance
6m. Do«s this Directive Supersede Previous Directives)? |_J Yes (_"] No What directive (numbtr. tnltl
A
b. Does It Supplement Previous Directives)? fy"| Yes f~| No Whet Directive (nvtnbfr. title)
9234.0-02 CERCLA Compliance with other Environmental Statutes
7., Drift Level
1 1 A — Signed by AA/OAA LJ 8 — Signed by Office Director LJ C — For Review & Comment LJ In Development
'This Request Meets OSWER Directives System Formet
8. Sign«j«ire"bt (.eed^dce^Qtrectives CaeoQinatgr
rsTcI- n^ —
9. Name and Title of Approving OHiciaU-7 ^^
L^L J/^^'
J. Uinston Porter,' Assistant Administrator
0.1. .
^/^
Date ,
V9/37
OS WER OSWER OS WE.
DIRECTIVE DIRECTIVE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. Z0460
JUL 9198T
OFFICE OF
SOUIO WASTE ANO EMERGENCY RCSPQ
- . 9234.0-05
MEMORANDUM*
SUBJECT: Interim Guidance on Compliance with Applicable or Relevant and
Appropriate
FROM: J. Winston HPorter
Assistant Administrator
TO: Addressees
Executive Summary
The guidance addresses the requirement in CERCLA, as amended by the
Superfund Amendments and Reauthorization Act of 1986, that remedial actions
comply with applicable or relevant and appropriate requirements (ARARs) of
Federal laws and more stringent, promulgated State laws. The guidance
describes how requirements are generally to be identified and applied, and
discusses specifically compliance with State requirements and certain
surface water and groundwater standards. "Applicable" and "relevant and
appropriate" are defined, and the three types of ARARs (chemical-, location-,
and action-specific) are described. Guidance is given on how and at what
points ARARs are to be used in the remedial process. Eligible State require-
ments are defined, with particular reference to "promulgated," and direction
is given on evaluating siting laws and on using the waiver regarding
consistency of application; Finally, the guidance discusses the use of
water standards specified in the law (MCLGs, FWQC, ACLs), and describes the
use of MCLs as cleanup standards for surface water or groundwater that is
or may be used for drinking.
Purpose
This memorandum provides interim guidance on compliance with other
Federal and State environmental laws in conducting CERCLA remedial actions.
The guidance is intended to help define the nature, scope, and use of
applicable or relevant and appropriate requirements. The guidance is not
intended to be ccnorehensive or exhaustive. The Agency is currently
developing a guidance manual that provides detailed information on potential
ARARs in the major Federal environmental statutes.
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-2- 9234.0-05
Background
Section 121(d) of CERCLA, as amended by the Superfund Amendments and
Reauthorization Act of 1986 (SARA), requires that Fund-financed, enforcement,
and Federal facility remedial actions comply with requirements or standards
under Federal and State environmental laws. The requirements that must be
complied with are those that are applicable or relevant and appropriate to
the hazardous substances, pollutants, or contaminants at a site or to the
circumstances of the release. Compliance is required at the completion of
the remedial action for hazardous substances, pollutants, or contaminants
that remain on-site. Any such requirements may be waived under six condi-
tions provided that protection of human health and environment is still
assured.
SARA essentially codified and expanded upon the Agency's Compliance
Policy, which was included in the National Contingency Plan (revised
November 20, 1985). The major difference between that policy and the new
statutory requirement is that the latter includes more stringent, promul-
gated State environmental standards as potentially applicable or relevant
and appropriate requirements, and Maximum Contaminant Level Goals and
Federal Water Quality Criteria as potentially relevant and appropriate
requirements.
GENERAL GUIDANCE ON IDENTIFYING AND USING ARARs
This section defines what ARARs are, describes the different types
of ARARs, and discusses how they are applied to the remedial process.
Definition of ARARs
A requirement under other environmental laws may be either "applicable"
or "relevant and appropriate" to a remedial action, but not both. A two-
tier test may be applied: first, to determine whether a given requirement
is applicable; then, if it is not applicable, to determine whether it is
nevertheless relevant and appropriate.
Applicable requirements means those cleanup standards, standards of
control, and other substantive environmental protection requirements,
criteria, or limitations promulgated under Federal or State law that
specifically address a hazardous substance, pollutant, contaminant, remedial
action, location, or other circumstance at a CERCLA site.
"Applicability" implies that the remedial action or the circumstances
at the site satisfy all of the jurisdictional prerequisites of a require-
ment. For example, the minimum technology requirement for landfills under
RCRA would apply if a new hazardous waste landfill unit (or an expansion
of an existing unit) were to be built on a CERCLA site.
Relevant and appropriate requirements means those cleanup standards,
standards of control, and other substantive environmental protection
requirements, criteria, or limitations promulgated under Federal or State
law that, while not "applicable" to a hazardous substance, pollutant,
contaminant, remedial action, location, or other circumstance at a CERCLA
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-3- 9234.0-05
site, address problems or situations sufficiently similar to those encoun-
tered at the CERCLA site that their use is well suited to the particular
site.
The relevance and appropriateness of a requirement can be judged by
comparing a number of factors, including the characteristics of the
remedial action, the hazardous substances in question^ or the physical
circumstances of the site, with those addressed in the requirement. It
is also helpful to look at the objective and origin of the requirement.
For example, while RCRA regulations are not applicable to closing undis-
turbed hazardous waste in place, the RCRA regulation for closure by
capping may be deemed relevant and appropriate.
A requirement that is judged to be relevant and appropriate must be
complied with to the same degree as if it were applicable. However,
there is more discretion in this determination: it is possible for only
part of a requirement to be considered relevant and appropriate, the
rest being dismissed if judged not to be relevant and appropriate in a
given case.
Non-pronulgated advisories or guidance documents issued by Federal
or State governments do not have the status of potential ARABs. However,
as described below, they may be considered in determining the necessary
level of cleanup for protection of health or environment.
Types of ARARs
There are several different types of requirements that Superfund
actions may have to comply with. The classification of ARARs below is
offered for illustrative purposes.
0 Ambient or chemical-specific requirements set health or risk-
based concentration limits or ranges in various environmental media for
specific hazardous substances, pollutants, or contaminants. Examples:
Maximum Contaminant Levels, National Ambient Air Quality Standards.
These requirements may set protective cleanup levels for the chemicals
of concern in the designated media, or else indicate an acceptable level of
discharge (e.g., air emission or wastewater discharge taking into account
water quality standards) where one occurs in a remedial activity. If. a
chemical has more than one such requirement, the more stringent ARAR
should be complied with.
There are at present a limited number of actual ambient or chemical-
specific requirements. In order to achieve remedies that are protective
of health and environment, it may frequently be necessary to use chemical-
specific advisory levels such as Carcinogenic Potency Factors or Reference
Doses. While not actually ARARs, these chemical-specific advisory levels
may factor significantly into the establishment of protective cleanup
levels. Guidance for establishing such chemical-specific; health-based
cleanup levels is given in the Superfund Public Health Evaluation Manual
(EPA 540/1-86/060, Oct. 1986).
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-4- 9234.0-05
0 Performance, design, or other action-specific requirements
set controls or restrictions on particular kinds of activities related to
management of hazardous substances, pollutants, or contaminants. Examples:
RCRA regulations for closure of. hazardous waste storage or disposal units;
RCRA incineration standards; Clean Water Act pretreatment standards for
discharges to POIWs.
These requirements are triggered not by the specific chemicals
present at a site but rather by the particular remedial activities that
are selected to accomplish a remedy. Since there are usually several
alternative actions for any remedial site, very different requirements
can cone* into play. These action-specific requirements may specify
particular performance levels, actions, or technologies, as well as
specific levels (or a methodology for setting specific levels) for
discharged or residual chemicals.
0 Locational requirements set restrictions on activities depending
on the characteristics of a site or its immediate environs. Examples:
Federal and State siting laws for hazardous waste facilities; sites on
National Register of Historic Places.
These requirements function like action-specific requirements.
Alternative remedial actions may be restricted or precluded depending on
the location or characteristics of the site and the requirements that
apply to it.
Using ARARs
This section explains how and where requirements may be applied in
the remedial planning process.
First, actual ARARs can be identified only on a site-specific basis.
They depend on the specific chemicals at a site, the particular actions
proposed as a remedy, and the site characteristics. Guidance is being
developed on the potential ARARs under the major Federal environmental
statutes for various activities, locations, and chemicals.
Where there are no specific ARARs for a chemical or situation, or
where such ARARs are not sufficient to be protective, one should identify
pertinent health advisory levels (such as Reference Doses or Carcinogenic
Potency Factors) as described above in order to ensure that a remedy is
protective.
The different ARARs that may apply to a site and its remedial action
should be identified and considered at multiple points in the remedial
planning process, namely:
- During scoping of the RI/FS, chemicals-specific and location-specific
ARARs may be identified on a preliminary basis.
- During the site characterization phase of the Remedial Investigation,
when the public health evaluation is conducted to assess risks at a
site, the chemical-specific ARARs and advisories and location-specific
ARARs are identified more comprehensively and used to help determine
the cleanup goals.
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-5- 9234.0-05
- During development of remedial alternatives in the Feasibility Study,
action-specific ARARs are identified Cor each of the proposed alterna-
tives and considered along with other ARARs and advisories.
- During detailed analysis of alternatives all the ARARs and advisories
foe"each alternative are examined as a.package to determine what is
needed to ccmply with other laws and be protective.
- When an alternative is selected it must be able to attain all ARARs
unless one of the six statutory waivers is invoked.
- During remedial design the technical specifications of construction
must ensure attainment of ARARs.
Note that CERCLA §121(e) exempts any on-site response action fron %
having to obtain a Federal, StaTe, or local permit.
In general/ on-site actions need comply only with the substantive
aspects of these requirements, not with the administrative aspects.That
is, neither applications nor other administrative procedures such as
permitting or administrative reviews are considered ARARs for actions
conducted entirely on-site, and therefore should not be pursued during
the remedial planning or the remedial action. However, the RI/FS, Record
of Decision, and design documents should demonstrate full compliance with
all substantive requirements that are ARARs. Also, other Federal and
State program offices should be consulted as appropriate to ensure that
remedies are substantively compliant with identified ARARs.
GUIDANCE ON IDENTIFYING STATE ARARs
This section describes the basic factors to be considered in identi-
fying State requirements for Superfund remedial actions.
As mandated by CERCLA S121(d)(2)(A), remedies must comply with "any
promulgated standard, requirement, criteria, or limitation under a State
environmental or facility siting law that is more stringent than any
Federal standard, requirement, criteria, or limitation" if the former is
applicable or relevant and appropriate to the hazardous substance or
release in question.
States are required by CERCLA to identify State ARARs "in a timely
manner," that is, in sufficient time to avoid inordinate delay or duplica-
tion of effort in the remedial process. Regions should expect to work
closely with their States so that the appropriate ARARs are identified
at critical stages in the process. At a minimum, chemical-specific and
location-specific ARARs should be identified after site characterization,
and action-specific ARARs should be identified after initial screening
of alternatives (prior to detailed analysis") for alternatives that pass
through the screening. To the extent possible, Regions and States should
negotiate to try to resolve any differences of opinion about ARARs.
Eligible Requirements
The statute specifically limits the scope of potential requirements
to those that are promulgated. "Promulgated" requirements are laws
iireosed by State legislative bodies and regulations developed by State
acencies that are of general applicability and are legally enforceable.
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-6- 9234.0-05
State advisories, guidance, or other non-binding policies, as well
as standards that are not of general application, cannot be treated as
requirements under CERCLA. However, as with their Federal counterparts,
State advisories may still be considered in determining an appropriate,
protective remedy.
General State goals that are duly promulgated (such as a non-
degradation law) have the same weight as explicit, numerical standards,
although the former have to be interpreted in terms of a site and
therefore may allow more flexibility in approach. Similarly, State laws
or regulations that prescribe methods for deriving numerical standards
for specific cases may also be potential requirements.
On-site actions need ccmply only with the substantive aspects of a
State requirement, not with the administrative aspects. Where the require-
ment involves review by a State board based on explicit criteria, the
best approach is to incorporate the substantive criteria into the Rl/FS
and remedy selection process and to maintain close consultation with
appropriate State representatives.
Limitations on State Siting Laws
CERCLA S121(d)(2)(C) puts special limitations on the applicability
of State requirements or siting laws for hazardous waste facilities that
could result in a State-wide prohibition of land disposal. Specifically,
in order to be treated as potentially applicable or relevant and appropriate
requirements, such laws must:
1) be of general applicability and be formally adopted
2) be based on technical (e.g., hydrcgeologic) or other relevant
considerations
3) not be intended to preclude land disposal for reasons other than
protection of health or environment.
In addition, the State must arrange and pay for additional costs for out-
of-State or other disposal necessitated by such a law.
The first criterion is similar to the criterion that a requirement be
promulgated, as discussed above. The second criterion requires that such
a law be based on sound scientific or technical considerations, such as
groundwater flow, surficial geology, and engineering design. The third
criterion requires seme evidence that health or environmental protection
motivates the prescribed restrictions; the introductory sections of a
law, the nature of the technical considerations, or the legislative history
can be used to make this determination.
Consistency of Application
CEPCLA S121(d)(4)(E) allows a State requirement to be waived if it
has not been consistently applied by the State in similar circumstances
at other remedial actions. The waiver cannot be used if the State has
demonstrated the intention to consistently apply the requirement.
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-7- 9234.0-05
Consistency of application by a State may be determined by examining
the following:
- Application of requirement at similar sites or in similar response
circumstances (considering nature of contaminants or media affected,
characteristics of waste and facility, degree of danger or risk, etc.)
- Proportion of cases (including enforcement actions) in which require-
ment was not applied out of total actions where it could have been
applied
- Reason for non-application of requirement in past cases
- Intention to consistently apply requirement in future as shown by
policy statements, legislative history, site remedial planning
documents, or State responses to Federal-lead sites; newly promul-
gated requirements shall be presumed to embody this intention
unless there is contrary evidence.
All previous actions by States since promulgation that relate to similar
remedial actions may be considered in evaluating consistency.
GUIDANCE ON APPLYING SPECIFIED WATER STANDARDS
CERCLA 5121(d)(2)(A) and (B) explicitly mention three kinds of surface
water or groundwater standards with which compliance is potentially
required - Maximum Contaminant Level Goals (MCLGs), Federal Water-Quality
Criteria (FWQC), and alternate concentration limits (ACLs) where human
exposure is to be limited. This section describes these requirements
and how they may be applied to Superfund remedial actions. The guidance
is based on Federal requirements and policies; more stringent, promulgated
State requirements (such as a stricter classification scheme for ground-
water) may result in application of even stricter standards than those
specified here. «
Background
These three standards or criteria each derive fron separate statutes
and have different purposes and uses.
MCLGs are developed under the Safe Drinking Water Act as chemical-
specific health goals' used in setting enforceable drinking water standards,
known as Maximum Contaminant Levels (MCLs), for public water supply systems.
MCLGs are based entirely on health considerations and do not take cost or
feasibility into account. Moreover, as health goals MCLGs are set at
levels where no known or anticipated health effects may occur, including
an adequate margin of safety. MCLs are required to -be set as close as
feasible to the respective MCLGs, taking into consideration the best tech-
nology, treatment techniques, and other factors (including cost). However,
as the standard for public water supplies, MCLs are fully protective of
human health and (for carcinogens) fall within the acceptable risk range of
10~4 to 10~7. Furthermore, for non-carcinogens, which are the majority of
contaminants, MCLs will nearly always be set at the same level as the
respective MCLGs. Also, these standards assure that even sensitive
populations will experience no adverse health effects. Thus, there will
be no difference in the protectiveness of MCLGs and MCLs for most contami-
nants, and, as discussed above, MCLs provide a sufficient level of protec-
tiveness even for carcinogens.
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-8- 9234.0-05
FWQC are developed under the Clean Water Act as guidelines from which
States determine their water quality standards. Different FWQC are derived
for protection of human health and protection of aquatic life.
ACLs are one of three possible standards available under the Subpart F
Groundwater Protection Standards of RCRA. For setting both a trigger and
a cleanup level fee remediating groundwater contamination, an ACL, the
background concentration, or for a small group of chemicals the MCL can be
selected for a given site.
Statutory Mandate
CERCLA §121(d)(2) states that remedial actions shall attain applicable
or relevant and appropriate requirements under the Safe drinking Water
Act, the Clean Water Act, and RCRA, and specifically shall attain MCLGs
and FWQC where they are relevant and appropriate under the circumstances
of the release or threatened release. It further states that for FWQC
this determination will be based on the designated or potential use of
the water, the media affected, the purposes of the criteria, and current
information.
CERCLA §121(d)(2)(B)(ii) limits the use of ACLs that are set above
health-based levels based on projections that health-based levels will be
achieved at a likely point of human exposure. Such a point of exposure
may not be beyond the Superfund facility boundary unless the groundwater
discharges into surface water and does not cause a statistically signifi-
cant increase of contaminants in the surface water. To apply such an
ACL outside the facility, moreover, the remedial action must include
enforceable measures to prevent use of any contaminated groundwater.
Application
In determining the applicable or relevant and appropriate requirements
for remedial actions involving contaminated surface water or groundwater,
the most important factors to consider are the uses and potential uses of
the water and the purposes for which the potential requirements are
intended.
The actual or potential use of water, and the manner in which it is
used, will determine what kinds of requirements may be applicable or
relevant and appropriate. For Class Ill-type groundwater that is not
suitable for drinking because of high salinity or widespread contamination
and that does not affect drinkable groundwater, drinking water standards
are neither applicable nor relevant and appropriate. For Class I- and
Class II-type groundwater or surface water that isi or may be used for
drinking, drinking water standards are applicable or relevant and appro-
priate, and the surface water or groundwater must ultimately be cleaned
up to such -levels.
For water that is or may be used for drinking, the Maximum Contaminant
Levels (MCLs) set under the Safe Drinking Water Act are generally the
applicable or relevant and appropriate standard. MCLs are applicable at
the tap where the water will be provided directly to 25 or more people or
will be supplied to 15 or more service connections. Otherwise, where
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-9- 9234.0-05
surface water or ground water is or may be used for drinking, MCLs are
generally relevant and appropriate as cleanup standards for the surface
water or the groundwater.
A standard for drinking water for a contaminant for which there is an
MCL may be more stringent than the MCL to ensure adequate protection in
special circumstances, such as where either multiple contaminants in ground-
water or multiple pathways of exposure present extraordinary risks. In
setting a level more stringent than the MCL in such cases, a site-specific
determination should be made by considering MCLGs,. the Agency's policy on the
use of appropriate risk ranges for carcinogens, levels of quantification,
and other pertinent guidelines. Prior consultation with Headquarters is
encouraged in such cases.
When MCLs do not exist for contaminants identified at the site, cleanup
levels should be set using chemical-specific advisory levels. Cleanup
levels should be selected such that the total risk of all contaminants
falls within the acceptable risk range of 10"^ to 10"?. in cases where non-
carcinogens are present, cleanup levels should be based on acceptable levels
of exposure as determined by the Reference Dose, taking into account the
effects of other contaminants at the site.
It should be noted that while MCLs are generally the cleanup standards,
as described above, the treatment necessary to attain an MCL level for one
chemical (or a protective level for a chemical without an MCL) may result in
an actual level for another chemical that is below its respective MCL (or
protective level).
A more stringent FWQC for aquatic life may be found relevant and
appropriate when there are environmental factors that are being considered
at a site, such as protection of aquatic organisms. The Agency is still
formulating a position with respect to the use of EVJQC for protection of
human health.
Guidance on the use of ACLs based on limitations on exposure will be
forthcoming.
* * *
Further Information
For further information on the subject matter in this interim guidance,
contact Steve Smith (FTS-382-2200) or Arthur Weissman (ETS-382-2182) of
the Policy and Analysis Staff, Office of Emergency and Remedial Response.
Addressees
Regional Administrators, Regions I-X
Regional Counsel, Regions I-X
Director, Waste Management Division, Regions I, IV, V, VII, and VIII
Director> Emergency and Remedial Response Division, Region II
Director, Hazardous Waste Management Division, Regions III and VI
Director, Toxics and Waste Management Division, Region IX
Director, Hazardous Waste Division, Region X
Environmental Services Division Directors, Region I, VI, and VII
-------
Notification of Restrictions on
Reimbursement of Private Party Costs
for Removal Actions
-------
&EPA
Unued States environmental Protection Agency
Washington. OC 20460
OSWER Directive Initiation Reauest
Iniarim Du«ctiv» Number
4%2)6.o-z>
Originator Information
Name of Contact Person
Jackie Oziuben
t-eao OHic« Q
0'oeaa — .Q
Dosw Q
OUST
OWP6
AA-OSWea
Mail Coda
WH-548
TelesMona Number
382-2452
Aco'oved lor Review
Signature ol O'dca Director
/U ilAJtMShtt, fo\ ft. l(ry\cs/rf:
Oata
i(lz?f&
Tula
I
Notification of Restrictions on Reimbursement of Private Party Costs
for Removal Actions
Summary ol Directive
Outlines the restrictive provisions of CERCLA regarding private party
reimbursement for removal costs. Directs the Regions to ensure affected
communities are informed of these provisions.
(Signed H. Longest, November 25, 1985)
Type ol Directive IMinuil. falicy directive, ^nnouncamenc. etc.}
.
Policy directive
Status
D Draft
GfNew
1 1 Revision
Ooes this Directive Supersede Previous Oirectivelslr1 (_J Yes | if No Dees It Suoslement Previous Oirectiveiis Secuest Meets OSWEa Directives Svstsrn format
Signature of Lead Ollici Directives C'licsr
Signature ol 03WEH Directives Officer
Date
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UNITED STATES ENVIRONMENTAL PROTECTION AOcNCV
WASHINGTON. D.C. :
'EV25I3S5
e OF
WAST: AND EMERGENCY flES»ON?j
MEMORANDUM
SUBJECT: Notification of Restrictions on Reimbursement of Private Party
Costs for Removal Actions / /)
FROM: Henry L. Longest II, Rirector
-• •-•Office-of Emergency and RemediaJ\ aiJfS'JrJs'e (WH-543)
TO: Superfund Branch Chiefs, Regions I-X
Oil and Hazardous Materials Coordinators, Regions I-X
The purpose of this inemorandum is to request thac you ensurs thdt
ccminunitias are inforned of the restrictive provisions of CERCLA rsgarcing
reirnburssniant of private party response costs in carryino cue the KC?-
^:tcicneo js c::e scacucory ana regulatory language governing privacy party
reimbursement. The requiroment for prior approval conserves the Funo; and
ensures that actions by others do not create further health or environmental
tnreats.
%
!n several co:ntr.'jnitics, residents paid the costs for hockin
-------
Most Superfund cleanup actions should be yndert^kon by th2 responsible
party, by a State under a duly authorized Sup-frfund contract or cooperative
agreement, OP by EPA contractors. Vary few privets party preauthorlzations
are anticipated, and those that ara granted will occur u^der extraordinary
circumstances. Shou'.d Regional response persona*1 ,-
-------
ATTACHMENT
for:
Section lll(a)(2) of CERCLA provides that noney in the Fund may be used
payment of any claim for necessary response costs incurred by any
other person as a result of carrying out the national contingency
plan established under section 3ll(c) of the Clean Hater Act and
amended by section 105 of this tit's: Provided, hcwever, That such
costs must be approved under said plan aws certified by the responsible
Federal official." (Emphasis in original)
Section 300.25(d) of the National Contingency Plan provides:
"If any person other than the Federal government or a State or person
operating under contract or cooperative agreement with the United
States takes response action and intends to seesc reimbursement from
the Fund, such actions, to be in conformity with this Plan for purposes
of section lll(a)(2) of CERCLA, may only be reircbursea if such person
notifies the Administrator of EPA or his/her uesicnae prior to taking
such action and receives prior approval to take such action."
(Emphasis supplied]
-------
Analytical Support for Superfund
-------
*»EPA
Untied Suiei snvtro'wenijl P'a«ectioo Agency
Wainimjian. OC 20*60
OSWER Directive Initiation Request
Interim Directive Numoer
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Analytical Support for Superfund
A revie-^ of alternative Superfund sample analysis resources (CUP,
ESD, REM, FIT, TAT, ERCS, AND ESAT).
General guidance regarding the use of the analysis resource given
above.
Request that each Region manage and monitor the use of said
resources via an integrated management and tracking systens which
provides for:
1. a site project manager accountable for specifying project needs.
2. an interface with the lab services of the ESD and the CLP.
3. a planning and scheduling function.
4. maintenance of a data base which includes sample sources, where
sent, turnaround times, cost and OA.
5. dcc-jmented adherence to OA practices.
Tyca e( 0-rec:w« iMinutl. fitter Oirecwc. Aanaunesmtnt. tie.)
Policy gfXl PTX^orJItral C.ti*'*ar*£o
Status
Q Draft
H Final
Ed New
' ' Revision
Goes vtis Oiraesv* Suoersatie Previous OiraeavMsl? (_) Yea ^j No Does It Supplement previous Oireeavetsi; LJ Yes (3
tf "Yes" to EUher Cuniion. What Directive fnumlisr. I
Review P!an
D AA-OSWS3 D OUST
D CS3H Q OWPS
LJ CSV/ I—! Reoions
CcCM
DCGC
D C?.°£
D
• Accuest Meets CSWgfl Directives System format
cure ol Laad-Sffice
s //
Data.
s-^natur* ol OSWEH Oireczives CHiccr
'.S-•? |10-3Si
Data
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. Z0460
MM 20
O'PICI Of
SOUO WASTI AND IMtftOtNCV
mse
SUBJECT: Analytical Support for SuparCund
FROM: Henry L, Longest II, Director
Office of Emergency and Remedi
TO: Waste Management Division Directors
Regions I - X
Environmental Services Division Directors
Regions I, VI, and VII
The purposes of this memorandum are:
8 to review the alternative Superfund sample analysis resources
that ars available to you;
• to provide some general guidance regarding the use of these
resources; and
0 to request that each Region manage and monitor the use of
these resources.
The two principal sources of Superfund program analytical
support have been the Regional laboratories and the Contract
Laboratory Program (CL?). Additional contractor sources are
Remedial (REM), Field Investigation Teams (FIT), Technical
Assistance Teams (TAT) or Emergency Response Cleanup Services
(ERCS) and their subcontractors, and the Environmental Services
Assistance Teams (ESAT) Program. ESAT is currently being devel-
oped to supplement the Regional laboratory staffing levels with
contractor employees. We expect to have the ESAT contracts
awarded and operational before the end of the first quarter in
FY '87.
As a general rule, the Regional labs should be used to
analyze samples where responsiveness and flexibility are para-
mount requirements. Analyses requiring quiefc response, methodo-
logy fine-tuning, and close interaction between the analyst and
the data user are best done in Regional labs. ".In FY '86, we are
'.is inc. a tctal of 109 EPA work years to analyze samples, review
data, and manage sample workload in support of Superfund activi-
ties. In FY '87, we willr"supplement EPA resources with 100 ESAT
vor«c years.
OSWER Directive No. 9240.0-2
-------
2 -
The CLP is the laboratory service that should be used for
routine high volume sample anal/sis requiring consistency of
methodology, 30 to 40 day turn-around times, and data of known
and documented quality. Faster turn-around time? can be obtained
by using the Special Analytical Services (SAS) option of the
CLP- SAS-can also be used to analyze unusual matrices with
non-standard methodology. in addition, .SAS has frequently been
used to enhance routine CLP analyses by incorporating a desired
method or parameter change consistently across an analytical
case. In FY '85, the CLP analyzed 70,400 samples at a total
analysis cost off 532,998,143. The CLP will be able to analyze
over 80,000 samples in FY '87. It should be viewed as your
primary resource for the above described services.
The analytical resources available from the remedial and
removal contractors include both fixed laboratory support, and
mobile laboratories and portable instruments for use in the
field. The amount of support available from these sources is
limited when compared to the CL" and must he effectively managed.
Attached are descriptions of emergency response removal, remedial
and enforcement program needs and some suggestions on how the
remedial/removal contractor resources can be used to supplement
the CL? and ESD activities.
The choice of which analytical service to use should be
driven by the data requirements of each program activity. The
Regional laboratories and the CLP have well established and
recognized Quality Assurance programs. However, whenever they
cannot meet program requirements, you may use the other contract-
ing modes at your disposal as long as you assure that basic
requirements are met. In particular, you should be sensitive to
costs, to clear definition of work, to enforcement needs, and to
quality assurance requirements.
Careful management of analytical support services is import-
ant because of the large commitment of both FTE and dollar re-
sources to this effort. The need for good Regional management and
coordination was emphasized in the May 17, 1935 report of the
Superfund Laboratory Services Management Review Group established
by the Administrator. Although several Regions have already
taken important initiatives in this area, I want to emphasize the
importance of including all analytical- services in this manage-
ment system. Specifically, I believe that it is essential that
each Region have an integrated, management and tracking system
that meets the following requirements as a minimum:
1. Site project manager accountability for specifying project
needs and acquiring appropriate analytical "services for the
project.
OSWER Directive No. 9240.0-2
-------
2. A point of interface with the laboratory services of the ESP
and CL? that can inform the project manager of the avail-
ability o£ these services and schedule sample analysis.
3. A planning and scheduling function closely linked to the
overall site planning process and that will provide accurate
projections of analytical needs and close week-to-week program
contact on scheduled and actual sample shipments.
4. Maintenance of a data base to monitor costs and schedules for
remedial, removal, and enforcement samples. At a minimum
these data should include:
0 records on where samples were sent for analysis, i.e., 5SD
lab, CLP, or other (e.g., remedial or removal) contractor
lab; this should be keyed to the source of the samples.
0 data on turn-around times, cost, and OA requirements for
samples not analyzed through the CLP-
5. Documented adhe'rence to appropriate quality assurance
practices and procedures.
I believe it should be each Region's choice as to what
organizational units should provide these integrated management
functions. My concern is simply that the functions exist in each
Region and that they have the ability to both manage the process
and provide Useful information to Regional and Headquarters
managers.
Attachment
cc: Environmental Cervices Division Directors
Regions II, III, IV, v, VIII, IX, and X
Carol Finch
Office of Regional Operations
Gene Lucero
Office of Waste Programs and Enforcement
OSWEP Directive No. 9240.0-2
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P9GGSAK ANALYTICAL
The primary reouirsment for analytical suooort under the remedial propran
Is the RI/FS. Specific requirements Include a variety of analytical techniques
and protocols tailored towards site specific requirements for quantity.
a-jality. timeliness and csst. Four key phases of analytical support have been
identified within the RI/F3 process:
PHASE 1; INITIAL CHASnCTgaiZATION— The first phase is the up-front
field analysis to characterire the problems at 'the site and the probable extent
of contamination. The key requirements of this phase are ths ability to take a
fairly large number of samples and perform the analyses quickly and
inexpensively. This may be accomplished through portable field Instruments and
mobile laboratories operated by the remedial contractors. The Informat ion
provided by this process is used to design the second phase of sampling.
PHASE 2z DETAILED SITE SAPLING-- The second phase entails a more
focused sampling to accurately define the extent of contamination. This
information is used during the feasibility study to support the development and
evaluation of alternative remedla'l actions, and during the ROD process to
support key decisions on the appropriate extent of remedy and selection of the
cost effective remedy. Therefore, QA/QC requirements are essential. The
primary analytical resource for this phase is the CLP, with judicious use of
ESO or remedial contractor laboratories to meet special program requirements.
PHASE 2^ FILLING IN C*T* S^PC— The third phase is best characterised
as "filling in" the diia gaps identified during the feasibility study. These
are normally highly focused samples designed to answer particular questions
regarding the analysis of alternatives or determining the extent of remedy.
Quick, turn-around is a key concern for these analyses to avoid delaying the
completion of the project; however, data quality must be commensurate with the
intended use of the data in the decision-making process. Sources available for
these analyses include the rs.-iedial contractor In-house leboratorles, special
analytical services uncsr the CLP. and the ESO lab.
PHASE lz PROJECT ENCIVEE3IMS— The fourth phase Involves special
analyses to support bench end pilot scale testing and treateblllty studies to
assess the technical performance of a particular technology or to provide
engineering data for remedial design. Normally, this work is done by the
remedial contractors.
Two efforts are currently underway which should better define these
requirements. The first is the development of Data Quality Objectives (OOOs)
for RI/FSs. '.The OGOs will define on a site soecific basis data quality
requirements for the various decisions that are required during the RI/FS. The
second la the RI/F3 pilot program which is Intended to improve the quality and
timeliness of the RI/FS through closer integration and phasing of data
collection activities with the feasibility study components of remedial
alternative development, screening and evaluation. These efforts will provide
more detailed crlterie on the various sources of analytical support, QA/QC
requirements, end the best way of Integrating these into the RI/FS process.
OSWE3 Directive No. 9240.0-2
-------
The emergency response program requires analytical services throughout the
response process. Phases of an emergency or removal action that may require
analytical support include: 1) preliminary assessment to determine whether an
emergency response 1s appropriate; 2) site investigation, including verification o
tne identity, concentration, and/or location of hazardous substances, including datf"
to support selection of the appropriate removal action; 3) proper disposal of
contaminated materials; and 4) verification that the removal action was effective,
including site-samples to determine full cleanup and long-tenn monitoring. Each of
t.iese activities requires that the Region specify, the analytical needs consistent with
the incident to be addressed. Considerations incl'ude analytical services, turnaround
time, quality assurance (QA), and cost (see table below). These considerations can
vary by the phase of the response, and whether the incident is a clear-cut,
time-critical emergency or a removal action where timeliness is needed, but not
critical.
Generally, either TAT or ERCS obtains analytical services with the approval of
the OSC. Use of CLP Routine Analytical Services (RAS) is generally inappropriate if
turnaround times of less than 30 days are required. However, CLP Special Analytical
Services (SAS) may be able to provide turnaround times of 14 days or less if special
requests are submitted. Support from Regional or State laboratories also should be
considered. Regional laboratories may be able to provide cost-effective, rapid
analyses through the ESAT program. When the CLP or Regional laboratory mechanisms are
not utilized, TAT obtains laboratory support through TAT Special Projects. ERCS
contractors often rely on OSC or TAT recommendations, or in some cases, access private
laboratories based on pre-axisting verbal arrangements.
CONSIDERATIONS FOR REMOVAL PROGRAM ANALYTICAL NEEDS
(Importance of Time, QA, and Cost)
Time
Prel iiiiinary
Assessment For
Emergency Response
High, particularly
if acute threat of
human exposure to
high-hazard sub-
stances.
II
Site
Investigation
Medium. Reason-
able turnaround
time needed for
removal decision
process.
Ill
Disposal
Screen
Medium.
Reasonable
turnaround
time needed
to proceed
with removal
action and
disposal .
IV
Verification/ '
Monitoring
Medium/Low.
Verification of
cleanup during
and after re-
moval requires
better turn-
around time
than does long-
term monitoring
QA Medium. Need
usable data, but
not high QA at
expense of timeli
ness.'
Cost Low. Other
considerations are
more important in
a suspected "~
emergency.
x Directive No. y'24U.O-2
High. Need ver-
ifiable data to
make removal
decisions, doc-
ument for cost
recovery.
Medium. Stan-
dard analyses
and medium time
frame allow more
cose considera-
tion.
Medium.
Data quality
does not need
to be high
'for waste
compatibility
and disposal.
High. Stan-
dard analyses
and medium
time frame
al low more
cost consid-
eration.
Medium. Need
usable data,
but not high
QA at expense
of cost con-
siderations.
High. Stan-
dard analysis
and longer
time frame,
allow more
cost consid-
eration.
-------
ENFORCEMENT ANALYTICAL REQUIREMENTS
The enforcement analytical needs fall into two categories:
1) RI/FS and 2) case support. The majority of the analytical
needs for~enforcement are for RI/FS on enforcement lead sites.
Since these studies are being done by th.e same contractors who
conduct RI/FS for Fund lead sites, the remedial program analytical
requirements also apply to these studies. For the second category,
civil case support, analytical needs can arise long after the
RI/FS is completed and limited data are needed to support a file
case. In this instance the preference is to utilize the Regional
and other EPA laboraories. However, each Region should decide on
a case-by-case basis how to manage its resources, and judicious
use of CLP and other contractor analytical services may be neces-
sary. For those sites where samples are taken for criminal case
support, only EPA laboratories should be used.
OSWER Directive No. 9240.0-2
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Guidance on Producing Superfund
Guidance Documents
-------
OSVER DIRECTIVE 9200.4-1
GUIDELINES FOR PRODUCING SUPERFUND DOCUMENTS
I. ISSUE STATEMENT: The purpose of these guidelines is to provide writers
of Superfund documents with assistance in writing guidance documents that
are more usable and accessible. Guidance documents which are well-written
can be expected to result in greater program effectiveness.
II. EXECUTIVE SUMMARY
These guidelines address the need to improve Superfund guidance docu-
ments for the benefit of users. They are designed to assist writers of
guidance to produce documents that are readable, concise, well-referenced,
and to the point.
Quality in guidance is necessary because a significant number of
guidance users are decentralized, receive quantities of information
demanding their attention* and engage in a variety of tasks which require
immediate access to information.
This document also addresses issues of availability, cross-referencing,
indexing, and follow-up contacts. Writing techniques are suggested that
can result in streamlined documents written in clear English, and that
provide an appropriate level of detail. Formatting suggestions are made
to facilitate condensation for use in field manuals or electronic indexing
or filing.
III. INTRODUCTION AND BACKGROUND
Reauthorized Superfund will generate a considerable volume of additional
guidance. Many Superfund guidance users are decentralized in Regional, state,
or field offices and must address complex issues which require inraediate
answers under field conditions. They need documents organized for easy,
quick accett with emphasis on readability and conciseness. The reader should
be able to ascertain where additional written information can be found, and
which individuals within the Agency can provide additional information.
These problems can in part be addressed by the way in which the
guidance is written. These guidelines suggest certain techniques which
can assist the writer in obtaining the desired result. They also discuss
cross-referencing, instructions for entry in the OSWER Directives System,
and contacts for securing additional information. The end result should
be to assist the writer in preparing a more usable document.
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OSWER DIRECTIVE 9200.4-1
-2-
A. Purpose of Guidance
Superfund guidance is primarily intended to help users implement the
program effectively and consistently. Individual documents may be designed
to serve one or more of the following purposes:
°To provide information and direction regarding procedures* policies,
and technical developments which assist program personnel in conducting
daily business uniformly and consistently throughout the country. This
establishes 'a pattern for solving specific types of problems.
•In lieu of regulation. Where regulations are silent, and formal
policy documents are inappropriate, guidance documents can provide
general direction to assist the user in solving particular types
of problems.
•As a response to requests for assistance frcm persons implementing
the program.
In Superfund, the actual writing of guidance usually occurs in Head-
quarters program offices, developed by workgroups which represent a cross-
section of the users. However, it can originate from top-down or bottan-up,
depending upon who perceives the need for the guidance and who initiates
the process. Much of the Superfund Guidance has been developed through a
bottom-up procedure, with significant contributions caning from Regions,
States, and other user groups.
Guidance should be used for the same variety of reasons that it is
written: to assure the consistent, effective implementation of the
program. While guidance is intended to be flexible, e.g., to be applied
to a situation consistent with best professional judgement, it can also be
used to strengthen the manager's position in handling unfamiliar situations.
B. Types of Guidance
Currently, four types of non-regulatory Superfund documents are
produced and generically referred to as "guidance"!
• Guidance Documents - >— tobX* t~fU.
• Procedural Documents ^
• Technical Documents -
• mnuals ^
Each serves a different function, as discussed below. Individual docu-
ments may stand alone or make reference to others} taken together, they
form a body of information which establishes pattern and practice as the
program matures.
• Guidance Documents explain what can be done to fulfill the require-
ments of a regulation or policy.
Generally, they cover a subject broadly and even comprehensively, but
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QSWER DIRECTIVE 9200.4-1
-3-
should not spell out specific steps of an approach. Instead, they explain
ideas which might be considered rather'than how a required analysis or
test might be conducted; or they may describe an analytic process, but do
not discuss the mechanics of carrying out the process.
EXAMPLE: Guidance on Remedial Investigations and Feasibility
Studies Under OERCLA; Relationship of the Removal and
Remedial Program Under the Revised NCP
• Procedural Documents describe specifically how to conduct an analysis
or activity; they provide a sufficient level of detail to complete an action
without need for additional guidelines. They often provide a step-by-step
procedure for conducting an action, including how to fill out forms where
appropriate. They may also deal with the concrete mechanics or methods
of an operation.
EXAMPLE: ERGS Contracts Users* Manual; Quality Assurance/Field
Operations Methods Manual
• Technical Documents provide scientific or engineering information
relevant to program activities. They act as reference documents for use
in complying with requirements, but do not explicitly relate the technical
information to requirements. They are often products of scientific research
or development conducted for program support.
EXAMPLE: Remedial Action at Waste Disposal Sites; Mobile Treatment
Technologies for Superfund Wastes
4 Manuals combine features of all of the above categories, particularly
guidance and procedural documents. They enable users to carry out the
program activities or requirements discussed without need for other supporting
program documents.
EXAMPLE: Public Health Evaluation Manual; Ccopliance Manual
IV. GUIDELINES FOR WRITING SUPERFUJO LXXLHENTS
A. Keeping the User In Mind
Users- of guidance represent a cross-section of individuals having a
wide variety of responsibilities. Guidance is used in Headquarters to
define the program and to measure the program's effect when assessing
results. It is used by Regional and State administrative offices to pro-
vide direction to office and field staff and to contractors and PRPs.
Seme of those in the latter categories may have little or no knowledge of
the inner workings of EPA or the Superfund program. Thus, the guidance,
combined with direction or verbal information obtained from Agency personnel,
may constitute the basis of their experience with the Agency.
In addition, field personnel who are away from their offices for
long periods of time, with limited telephone access and limited storage
and transporting capabilities, require documents that are accessible
as well as brief, transportable, and concise.
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OSWER DIRECTIVE 92;
-4-
Insofar as possible, when creating a guidance document, writers
should consider the audiences. The bottom line is that if the guidance
is not (1) accessible, (2) readable (3) brief and to the point (4) clear
and (5) transportable, it probably will not be read—and if it's not
read, it will not be used.
B. Structuring a Guidance Document
Field and program personnel who work with a wide spectrum of problems
need documents that are easily and quickly consulted to provide immediate
information. They do not have time to search voluminous material to
secure an answer to what appears to then to be a straightforward question.
A consistent format saves many hours of research time for the user.
The following proposed structure allows the reader to become quickly
oriented to the issues at hand, then proceed to in-depth material which
can be absorbed as time allows.
• Issue Statement - The document should begin with a clear, concise
statement of the issue to be discussed.
• Executive Sunroary - This section serves two purposes* and may also
be serving several different audiences. First, it should enable the
reader to quickly determine if the document is pertinent. It sketches
the most important points, and indicates where in the document more
in-depth information is contained. Secondly, it can convey a basic message
to the policy manager who may never read the entire document. In many
documents, it also acts as a briefing for upper level managers regarding
the major policy issues embodied in the larger document.
• Introduction and Background - This section introduces the material
to be presented, may provide historical reference, cites pertinent regula-
tions, statutes or other existing documents and sources of related infor-
mation, it can also provide lead-in for the prescriptive material which
follows in the next segment.
• Prescriptive Material. This segment provides any prescriptive
materiaT~applicable to the matter at hand, flagged or underlined. (Pre-
scriptive Material is defined as that which is mandated or required by law
or regulation*)
• EXpeaitory Information. The narrative that constitutes the actual
guidance is placed here, together with case studies, examples, and other
appropriate illustrative material. This provides the next level of
detail for the reader who has concluded that this document addresses the
needs of the situation and now wishes in-depth information.
• Referencing Section. This segment includes cross-referencing
to other documents, identified by their OSWER identification number, if
available; or by their date and source where no OSWER number has been
assigned. In addition, it should include the name of a contact with
phone number for obtaining further information. Larger, more comprehen-
sive documents might include glossaries and indexes.
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OSWER DIRECTIVE 9200.4- -
-5-
C. Language and Streamlining Techniques'
The choice of language affects the user's ability and/or willingness
to implement the guidance. Because "guidance," by definition, is not
prescriptive unless it cites specific regulatory or statutory requirements.
the language style should be flexible rather than rigid. The most common
illustration of flexibility is the use of "may," which is flexible, rather
than "must" or "shall," which connote inflexibility.
When guidance contains prescriptive material, it should be referenced
back to the appropriate regulatory or statutory citation. It is then advisable
to separate or set off the prescriptive material by means of starring,
flagging, underlining, or paragraphing so that it stands out.
Streamlining means coming immediately to the point or heart of the
matter with a minimum of verbiage. It results from visualizing the
finished product and producing a final document that mirrors this concept.
Below are a series of suggestions which can assist the writer in
producing readable, usable guidance.
• Outline the document, and write from the outline. Outlines need
not be formal; they can take the form of concise bullets that
become the organizing points for the document, and can even be
developed into topic sentences. Picture the user and the constraints
under which that individual operates. Visualize the final document
and its intended purpose for the program and for the user.
• Establish a style consistent with the purpose of the document.
Remain with that style until the document is completed. While style
can be individual, it is also true that each of the four document types
has its own style, and that style has an effect on the reader.
For example, technical documents which inform the user of new tech-
nology or new information tend to be most effective when the style is
concise and direct.
Procedural documents of ten set forth specific steps, tasks, or
operational steps which the reader is to follow. These documents are
soMtioM the least flexible of the four types. Jhe style should be
staple and straightforward, with complete, dijjecte*«entences. Emphasis
should be on an orderly, clear presentation", r *'
Guidance documents frequently offer an array of options and case
studies, to which the user may apply best professional judgment in
adapting to the situation at hand, within the broad parameters of
the guidance. The writing style can be somewhat more flexible and
expository.
Manuals, in that they stand alone in implementing part of a
program, frequently combine elements of the other documents. They
may be the most lengthy of the four, and may include technical
information with specific procedures and an array of options. Style
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OSWER DIRECTIVE ^1
-6-
will therefore emerge as a composite of the others.
In selecting the appropriate style, it is useful to remember that nouns
and action verbs written in the active voice supply greater power and empha-
sis than writing with adjectives and adverbs and in passive voice. Further,
impersonal language increases the rigidity or inflexibility of the document.
The language used in a regulation or directive is more impersonal than
that used in a simple memorandum.
For example:
Rigid; "To comply with this provision, the owner/operator
must determine whether a bulk hazardous waste is a liquid
or contains free liquid. EPA regulations define "free
liquids" as "liquids which readily separate from the solid
portion of a waste under ambient temperature or pressure."
(40 CFR 260.10)...EPA believes that the Paint Filter Liquids
Test is the appropriate test to be used to determine the
absence or presence of free liquids in bulk and containerized
waste."
(Note the prescriptive material quoted and referenced)
Flexible; "This step is designed to facilitate responses to clear-
cut, time-critical emergencies for which only limited data are
available. In those cases, OSCs may have to rely primarily on
findings of the preliminary assessment, without significant
additional data collection....fchere the OSC has determined that
the incident is not time-critical, a more thorough analysis...will
be possible before recommending a...response."
4 Limit explanation. Select simple words and omit needless words. The
reader has limited reading time. "Less is more" is often a useful concept
in government writing.
For example;
Excessive Details "Implementing the notification program will
require both staff time and the direct expenditure of funds. You
will find guidelines on typical costs of various activities through-
out this handbook. The available funding and staffing level will
have an impact, for example, on how extensive the public education
program can be and which methods of form distribution can be used.
State budget allocations will also impact the types of activities
possible. Some states will find that they have adequate staffing
out little money to pay for printing and travel, while other
States may experience the opposite."
Concise; The scope of the rulemaking will be limited to municipal
landfills because, currently, reliable data on which to construct
and defend sound Criteria exist only for municipal waste landfills.
Moreover, by limiting the rule, the Agency can expect to promulgate
the revisions within the Statutory deadline of March 31, 1988. '
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OSWER DIRECTIVE 9200-4.1
-7-
0Avoid unexplained acronyms, unexplained technical terms, and program-
specific" language not part of the general experience of the reader. The
standard Agency practice ot writing a phrase in Cull with the acronym in
parentheses at the beginning of the article is helpful. Even so, assumptions
that the reader has the same working knowledge of the subject as the writer
can be unwarranted. Many readers find themselves intensely irritated at
government writing which requires the constant translation of acronyms
and jargon. In extensive documents requiring acronyms, inclusion of a glossary
can be helpful.
For example:
(1) "You should begin exploring mechanisms to implement
CA's with OTA Regional counterparts early in the FY
about sites in Regions targeted for CCRCLA action.
This should be accomplished by review of the NPL,
the SMP, and the SCAP. The SCAP commitments should
be reflected, as appropriate, in the SEA's for your
Region."
(2) "You should begin exploring mechanisms to implement
cooperative arrangements with Office of Federal
Activities (OFA) Regional counterparts early in the
fiscal year. This should be accomplished by review
of the National Priorities List (NPL), the Site
Management Plan (SMP), and the Superfund Compre-
hensive Accomplishments Plan, (SCAP). The SCAP
commitments should be reflected, as appropriate, in
the State/EPA Agreements for your Region."
•Summarize when appropriate. Use of summaries depends upon the degree
of complexity of the material being presented. Vtoen the material is lengthy
and complex, it may be useful to summarize at the end of sections or
chapters, or it may be useful to present a final summary at the end of the
document. Another effective technique is the us* of bullet points at the
beginning of sections to highlight main points. In addition* careful
construction of the Executive Summary assists both writer and reader in
keeping to the point.
•Hhsi» revising and rewriting, look for redundancy, strive for clarity,
and reduc* Stall when possible. Then recheck the editing to be sure
the meaning hasn't been lost. Short, complete sentences placed in logical
order with logical paragraphing simplify the work of the reader. All para-
graphs should have topic sentences at the beginning or the end. The final
editing effort is the comparison of the finished product with the writer's
initial concept and the mental picture of the user. How well do they match?
Will the reader be able and willing to understand the writer's message?
Only when the match is achieved, is it time for others to review the document.
D. Content.
Appropriate Level of Detail. There are two considerations with
gard to detail. The first is that the level of detail should be appropriate
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OSWER DIRECTIVE 3 200.4.
-8-
to the document. As a rule, procedural documents require the most detail
and specificity, technical documents somewhat less, and guidance documents
least of the three. Manuals will be a composite and should have a level
of detail appropriate to the subject.
Secondly, consideration should be given to the amount of detail needed
by the various users, vtiile the material may be applicable to a variety
of situations, some users may need less detail. Vftere more detail is
required, it should be presented and organized so that it does not distract
such users.
It is the writer's job to determine the appropriate level of detail in
planning and outlining the document.
Technically Correct. The writer is responsible for presenting a
final~3ocument that is technically correct and to conduct whatever reviews
and checks are necessary to assure that the document is in fact correct.
Prescriptive Only When Required. Guidance should be assumed to be
"guidance" unless otherwise stated. "Best professional judgment" should
be assumed unless the document specifically flags prescriptive (mandatory)
material. Vfcen these flags are present, statutory or regulatory references
should be cited, as well as appropriate back-up policy or precedential
material. Otherwise, flexibility should be assumed and language should
be constructed accordingly.
Filing, Indexing, and Pollow-Up Information have been discussed in
Section B. However, each document should end with a section that provides
assistance in obtaining additional data, and in filing and cross-referencing.
E. Classification.
Documents have been classified for general use in the Superfund
Program. The four classification types previously discussed are designed
to be broad and flexible, while giving users a clear idea of the kind
of information presented in each. As the system evolves, it is anticipated
that each kind of document will be identified by a characteristic cover
which makes it easily identifiable.
In addition to the Superfund classification system, each document
will, of OOUZM, be assigned an OSHER Directives Number and be included
in that induing system. Beyond that, institutional users (Regional
or State offices, others) may wish to develop their own internal filing
or reference system. The classification system, plus the Issue Statement
and Executive Suranary at the beginning of each document, will facilitate
the design of such a system.
(F) Considerations in Publishing a Document
»»
Once a document text has been prepared and approved for publication,
a variety of publication requirements and procedures are triggered. Since
these are important in assuring that all agency requirements are met, they{
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OSWER DIRECTIVE 9200.4-1
-9-
will be the subject of a subsequent procedural guidance, coordination of
publication procedures is the responsibility of the Office of Program
Management, OERR.
FOLLOW-UP INFOFMATION OR CONTACTS
(1) For general writing information - THE ELEMENTS OP STYLE* by William
Strunk, Jr. and E.B. White, Third Edition, MacMillan publishing Co.,
Inc., New York 1979.
(2) For information about OSWER Directives System - Contact Sherry Fielding,
OSWER Directives Coordinator, Immediate Office, Assistant Administrator
for Solid Waste and Emergency Planning - FTS 382-4483
(3) For information about the Guidance Review Project or OERR Guidance,
contact Arthur 8. Weissman, Policy Analysis Staff, Superfund Program,
FTS 382-2182.
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Comparison of EPA and Commonwealth
of^Kentucky PCB Cleanup Standards
-------
COMPARISON OF EPA AND COMMONWEALTH OF KENTUCKY
PCS CLEANUP STANDARDS
The following paragraphs briefly summarize EPA and Commonwealth of
Kentucky statutes applicable to PCB cleanup standards. In the case of the
EPA regulations, some of the contaminant levels are regulatory standards,
while others are simply recommended levels. EPA standards will soon change,
as described below. The Kentucky cleanup standards for PCBs are based on
general language in the Kentucky Hazardous Substances Statute as described
below.
EPA
EPA has established various PCB cleanup standards or recommendations
under the Toxic Substances Control Act (TSCA). the Clean Water Act (CWA).
the Safe Drinking Water Act (SOWA), and the Comprehensive Environmental
Response, Cleanup and Liability Act (CERCLA). While TSCA currently has the
major role in PCB regulation, the EPA has announced its intent to further
regulate PCB wastes under the Resource Conservation and Recovery Act
(RCRA).
TSCA
Under Section 17 of TSCA, EPA considers spills, leaks, or other
uncontrolled discharges of PBCs in concentrations equal to or greater than
50 ppm to be improper disposal of PCBs. TSCA Section 17 provides EPA with
the authority to compel responsible parties to clean up spills at such
levels of contamination.
A recent "TSCA PCB Cleanup Policy" (signed 3/20/87 and effective thirty
days after publication in the Federal Register) will establish PCB cleanup
standards for the majority of PCB spill situations. Certain spill
situations described in that policy will not, however, be subject to these
standards, based on site-specific conditions and the discretion of EPA
Regional offices.
Spills, leaks or other discharges occurring before this policy becomes
effective have been or will be cleaned up to levels ranging between
background and 50 ppm depending on Regional discretion and site
characteristics.
CWA
Under the CWA, EPA set contaminant levels, based on toxicity and risk
assessments, for adoption under state programs. These are not regulatory
levels by definiton, however, they will function as such under state
authority. The states must set levels that are at least as strict or
more strict. The CWA recommended maximum levels are 2 ug/1 (24-hour
average) for freshwater, and 0.03 ug/1 (24-hour average) for saltwater based
on acute toxicity to aquatic life; and 0.79 ng/1 (based on 10~5
lifetime cancer risk), 0.079 ng/1 (based on 10'6 lifetime cancer
risk), and 0.0079 ng/1 (based on 10~' lifetime cancer risks).
-------
SOWA
Under the SDWA, EPA has suggested levels of maximum allowable '
contamination. These health-based levels of maximum PC3 contamination
include the 10-day health advisory levels of 100 ug/day (children) and
700 ug/day (adult); and for Aroclor, 100 ug/1 (child) and 350 ug/1 (adult).
The Agency will recommend a cleanup level of 0.005 ug/1 for PCBs 1n drinking"
water based on a 10~5 lifetime cancer risk.
CERCLA
CERCLA recommended cleanup levels are based on the consideration of
soil/air partition coefficients and the potential for ingestion, and dermal
and inhalation exposure. There is currently insufficient data to develop
advisory levels for one-day and long-term, non-cancer effects. The
non-cancer 10-day advisory level is 42 ug/g on site, and 47 ug/g, based on
inhalation exposure, at the perimeter of the site. The chronic Intake
advisory, 10~° cancer risk (upper bound estimate) is 0.6 ug/g without
cover, or 6 ug/g with 25 on of clean soil cover (i.e., PCS < 0.1 ppm), on
site; and 2 ug/g without cover, or 20 ug/g with 25 on clean soil cover, at
the site perimeter.
Site-specific factors, ARARs, and Regional discretion each play a role
in CERCLA final cleanup levels. ARARs include TSCA, CWA, SOWA and the
guidelines, standards and recommendations of the Food and Drug
Administration, the American Conference of Governmental Industrial
Hygienists, the National Institute of Occupational Safety and Health, the
National Academy of Science, and the Occupational Safety and Health
Administration. Current RCRA regulations pertain to PCS disposal |
requirements.
The Regions have discretionary authority to set more stringent cleanup
standards on a site-by-site basis. Region IV, which includes Kentucky,
adheres to TSCA cleanup standards.
Kentucky
Kentucky cleans up hazardous substances to background levels wherever
practicable. This standard is based on Kentucky Revised Statutes (KRS)
224.877. "Definitions-Regulations-Notification-Minimization-Emergency
plan-Powers of department," paragraph (4) as follows:
"(4) Persons having possession of or control over a hazardous substance
being discharged or who caused the discharge shall take the actions
necessary to restore the environment to the extent practicable and minimize
the harmful effects from any discharge Into the air, lands or waters of the
Commonwealth."
As described by Alex Barber, Kentucky Department of Environmental
Protection Division of Waste Management, Kentucky cleans up PCBs to
background levels unless it is not practicable to do so. Such a situation .
may arise when soil contaminated above background is removed down to
bedrock. Generally cleanup to background levels will result in lower
cleanup levels than EPA's 50 ppm action level.
-------
Kentucky may allow contamination up to 10 ppm, if the site is covered with a
state-approved cap.
PCB contamination in water is regulated by 401 Kentucky Administrative
•Regulations 5:031 Section 4. The state standards are based on CWA Section
304 criteria. The state standard for ambient warm water Is .0014 ppb. For
finished water the standard is .0013 ppb, based on SOWA.
Summary~-
EPA's specific standards and recommendations provide for protection of
human health and the environment at PCB cleanups particularly as ARARs are
Incorporated. 1n CERCLA cleanups. The Kentucky cleanup to background may, in
some cases, exceed EPA cleanup standards. Kentucky water standards for PCB
contamination are based on the federal CWA and SOWA.
-------
Concurrence on Payment of Relocation
Gosts for Business During Removal
-------
'
* UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
'k WASHINGTON. O.C. 20460
JUN I5I98T
MEMORANDUM
SUBJECT: Concurrence on Payment of Relocation,
Costs for Business During Removaj
FROM: Henry L. Longest II, Director*
Office of Emergency and Remedial! *l£f pons«
J. Daniel
Associate General Counsel
Grants, Contracts, and General Law Division
TO: Stephen Luftig, Director
Emergency and Remedial Response Division
Region II
Douglas B. Blazey. Regional Counsel
Region II
You have asked for our concurrence in the use of the
Hazardous Substance Superfund (the Superfund) to pay costs
associated with the relocation of a business during the course
of a removal action carried out under the Comprehensive Environ-
mental Response, Compensation and Liability Act, as amended
(CERCLA). Given the equities in this particular case, it is
our view that it is appropriate to reimburse the business for
temporary relocation costs. Any costs related to business
losses are, of course, not reimbursable from the Superfund.
As we understand the facts, EPA took a removal action in a
building at the Signo/Mt. Vernon, New York site in which RPM,
a laminating company, conducted business. EPA advised RPM that
it could not safely operate its business while the removal team
was working. Subsequently, the Occupational Safety and Health
Administration posted a notice of Alleged Imminent Hazard in
the building and the county health department issued a Notice
of Closure. The Agency for Toxic Substances and Disease Registry
also recommended that RPM be excluded from the building because
of the potential threat to its employees. RPM moved its operations
to another location and is seeking reimbursement for its costs.
Section 101(23) of CERCLA defines "removal" to include such
actions "as may be necessary to prevent, minimize, or mitigate
damage to the public health or welfare or the environment, which
-------
-2-
may otherwise result from a release or threat of release. The
term includes, in addition, without being limited to ...
temporary evacuation and housing of threatened individuals not
otherwise provided for . . .". You have suggested that this
authority is sufficiently broad to include temporary relocation
of businesses as well as.residents. We agree that the statute
can be read to support such an interpretation.
We intend to address the temporary relocation of businesses
during a removal action under the relocation functions delegated
to the Federal Emergency Management Agency (FEMA). We are
currently working with FEMA to determine the appropriate reim-
bursement for RPM, and to develop guidance and regulations for
any future temporary business relocation.
We understand that FEMA's regional office will be working
directly with you to develop the information necessary for
RPM'3 reimbursement. If there are any questions on this matter,
please contact Tim Fields or Lisa Guarneiri at FTS 475-8110.
cc: Walt Kovalick
Tiroothy Fields
Hans Crump
Linda Garczynski
Hark Mjoness
Lisa Guarneiri
Michael Hirsch, FEMA
Dennis W. Kwiatkowski, FEMA
Charles Robinson, FEMA
Fred Kubel, Region II
Charles Fitzsimmons, Region II
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
DATE: MAR 2 3 1987
SUBJECT: Attached Memorandum
Christopher
FROM: Regional Adra
TO: Francis S. Blake
General Counsel
and
REGION II
rding Relocation Costa of a Business
Winston J. Porter
Assistant Administrator
Solid Haste and Emergency
Response
Enclosed is a copy of a memo that Doug Blazey and Steve Luftig
have sent to their colleagues in your offices requesting assist-
ance on a particularly novel question. I feel we need an answer
quickly and wanted you to know that tie principles in RPH have
been in contact with Lee's and my office regarding their plight.
I feel we should assist them and am sympathetic to many of tne
points they raise. It is likely that we will be sued if a finan-
cial settlement is not reached. I believe the general public
expects Superfund to support some reimbursement for a displaced
business assuming we are statutorily authorized to make such
payments. \
Your interest in this matter would be appreciated.
-------
UNITED STATES ENVIRONMENTAu PROTECTION AGENCY
.MAR 2 0 1387 REGION II
.£:
Relocation Costs of Business in Removal Action
Douglas R. Hl)WM%ir\Yi «nd StepHenCjTtlg, Director
FROM- Regional CoUn£gfQJfe&-*M ^Emergency and Remedial
*"^r>" A \ {Response Division
TO: j. oaniel Berry, Acting and Henry L. Longest II
Associate General Counsel Director, Office of Emergency
for Grants and General Law and Remedial Response
This is to advise you tnat Region ZZ would like to use Fund
money to cover a business' relocation costs resulting from
an EPA removal action. Zt is our understanding tnat tne Agency
nas never done this oefore, therefore, we would like your concurrence
on tnis action.
I. BACKGROUND
RPM is a small family operated laminating company, wnicn employs
22 people and is located in nt. Vernon, Westcnester County, New
York. RPM rents a portion of tne 2nd floor and all of tne tirst
floor of a building located at 200-208 S. 14tn Avenue, Mt.
Vernon, Sew York. EPA is undertaking a removal action on a
portion of tne second floor and tne enoftre third floor of tne '
same Ouilding. Tne removal action involves tne removal of various
shock-sensitive explosives, flammaole 'liquids, flammable solids,
poisons, combustibles, oxidizers and acids.
EPA advised RPM tnat it could not operate 'its business wnile EPA
was physically conducting removal activities Inside tne building.
EPA was concerned not only for RPM's safety during tne physical
removal activities in the building, but also for tne removal
team's safety wnile undertaking tne clean-up operation. EPA
further advised RPM tnat it had no oojections if RPM worked
during the evening when the removal team was not actually working
in tne building.* Subsequent to tnis, tne Occupational Safety
and Health Administration ("OSHA") posted a notice of "Alleged
Imminent Hazard" and tne Westcnester County Department of Health
("DOB") issued a Notice of Closure. The basis* for DOH's Notice
of Closure was tne hazard RPM's presence might nave on tne general
public. Zn addition, tne Agency for Toxic Substances and Disease
Registry CATSDR') recommended, initially in a January 1987
letter and in at least two documents in- February 1987, tnat RPM
oe excluded from tne building due to tne threat to RPM and tne
surrounding community. Unable to conduct its business in the
building, RPM made arrangements to move some of its lighter
equipment to a temporary location where tne work tnat could ce
pertormed, i.e. cutting, was performed and tne remaining
of tne vorx were subcontracted out.
"/From tne Beginning, the OSC thought it would be appropriate to
compensate RPM, if possible, for its losses and asked ORC to ^
investigate tnis matter. As tne removal action progressed,
however, tne issue crystillized into wnetner RP.«. *S relocation
costs could De compensated.
U FORM 13?0-1 (»/aS>
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-2-
After being excluded fcom the building for several weeks, «PJI
purchased an option to buy the building, at a cost of allegedly
950,000, where it had temporarily located its cutting operation.
Before RPM exercised its option on ,the hew building. OSHA rescinded
its Notice of Alleged Imminent Danger and the Westcnester County
Department of Health rescinded its Notice of Closure. Altftcugn
ATSDR did not rescind its recommendation, RPM was permittee to
re-enter the building.* Under an agreement reached with tl-« On
Scene Coordinator, RPM is permitted to wor< 1 day a week ar.£
evenings, when EPA is not in the building working.
The Region feels that we can compensate RPM, using money from the
Hazardous Substance Trust Fund, for its re-location costs to tne
temporary premises.**
RPM has requested payment for relocation expenses to the temporary
location as well as expenses it will incur in a complete and
permanent move to the "temporary" location. The issue of wnat
costs are eligible for reimbursement is a distinct topic from the
narrow question of wnether we are authorized to pay any business
relocation costs under CERCLA. As you may know, EPA has ir.teragency
agreement with the Federal Emergency Management Agency ("FEMA") to
reimburse it for all relocation activities undertaken by FEMA
pursuant to CERCLA response actions. FEMA has detailed accounting
and eligibility requirements based at least, in part, upon the
•/Pursuant to KPM's concurrence, EPA is using a portion of RPM's
leased premises as a storage area for some of the segregated
chemicals. *
**/Since RPM has alraady expended the money for the initial
relocation and some of the rent, EPA would be reimbursing k?M for
these expenses. Me recognize tnat normally tnere needs to be
EPA preauthorization (40 C.F.R. 5330.25} before EPA reimburses a
person incurring response costs. Me feel, however, that such a
preauthorization is implied from the combination of the actions
of EPA, OSHA, 3OH and ATSDR. To require a more formal pre-
authorization (such as an Order or a written statement) would not
be reasonable in circumstances lite this. Specifically, rather
than having parties voluntarily agree to do that whicn is r-i/juested
by the federal and local governments in implementing a response
action, parties will wait until they are required to co-opecate,
either thrcugn the judicial or administrative processes. All of
tnis time and effort, in the long run, will slow down our
removal actions.
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-3- , I
i
requirements of tne Uniform Relocation Ac^. wnetner all questions
that arise as to tne propriety of certain, expenses are answered
by FEMA regulations and policies is an open question. However,
we see little efficiency in pursuing these issues until the
threshold question of basic eligibility is resolved.* The Region
has also .been asked to consider RPM's relocation expenses to tn«
new building as .a response cost. The Region would welcome your
opinion on this issue as well.
The pertinent dates of the events in this case are as followsi
• i
Oecemoer 8-17, 1986 - EPA conducted a preliminary assessment and
inspection of the site. EPA advised RPM that the business can
not be operated when the removal team was physically working
inside the building. .
December 17 - January 7, 1987 - RPM continued to work normal
hours. (Appropriate for holiday season)
January 8, 1987 - EPA began removal activities inside the building.
RPN advised by the OSC to stay out of the building because the
ether was being sampled.
January 9, 1387 - Ether still being sampled. OSC advised RPM to
stay out of the building.
January 9, 1987 - Agency for Toxic Substances and Disease Registry
("ATSDR"), based on a review of tne videotape of the interior of
the building and a partial list of the contents of the building,
made an assessment that the building constituted an imminent fire
and explosion hazard. ATSDR recommended that RPM be immediately
excluded from the building.
•/For example, RPM contends that it was required to relocate
oecause "permitted" night operations would not allow it to send
out and receive shipments during the day.
•
Further;, because the heavy equipment could not be easily dismantled
and relocated in a temporary facility, RPM utilized subcontractors
for certain operations because of its disrupted work place. Many
financial issues arise from these "tangled" operations.
To further complicate matters, RPM is likely to permanently relocate
to it? "temporary" location and has alledgedly paid $50,000 for*
an option to ouy the new facility. The potential relocation
costs ars, therefore, significantly higher because heavy equipment
now located at the response site, must be dismantled, moved end -
re-aligned by experts. One of RPM's estimates of this mov« is
$153,000. Moreover, we understand that RPM's lease at the response
sice expires in Seccem&er 1987 and that a permanent relocation was
contemplated by that time in any event.
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-4-
January 12 - 14, 1987 - RPM worked evenings wnen the removal team
was not in 'the building. EPA hired a van service to transport
t.le employees. EPA also accepted deliveries and made shipments
Cor RPM during the day when RPM could not be in the building.
January 14, 1987 - Occupational Safety and Health Administration
posted a notice of 'Alleged Imminent Danger" (The notice is not a
closure order. It serves as a warning to workers that there is
an alleged dangerous condition in the workplace. )
January IS, 1987 - Dr. Anita Curran, iComtiiss loner of the Westcnester
County Department of Health issued antaotice of Closure to RPM.
January IS, 1987 - RPM excluded from the building.
January 22 and 29, 1987 - Hearing held on the Notice of Closure.
Agreement reached that RPM must stay out of the building until
all of the explosives that have been [identified as of January 26,
1987 are removed, provided, however, That the order would be
reinstated if EPA disclosed the existence of additional explosives
or materials that the Commissioner felt constituted an imminent
hazard. Approximately 600 pounds of snock sensitive material
were found on 1/27/87.
January 30, 1987 - ATSDR strongly recommended to the Westchester
Department of Health that e vacation of RPM be continued, (letter
is attached)
»
February 3, 1987 - ATSDR recommended that RPM be excluded from
the building until: The building is completely inventoried; all
leaking containers are overpacked: all explosive or shock sensitive
materials have been removed; incompatible substances have been
segregated; a Fire Marshall is on site at all times; and EPA
reviews and approves RPM 'a proposed activities in the building.
February 10, 1987 - RPM locates another building in which t?
temporarily operate.
February 17 - 27, 1987 - RPM began moving some of its equipment
out of the building between the hours of 7 and 9 in the morning.
EPA goes in the building at 9. RPM continues to move material
out each morning for subcontracting. They have set up shop at
another temporary location. They do their own cutting, and then
subcontract the work out.
February, 1987 - RPM purchases an option to buy another building
from which to operate its business.
February 27, 1987 - Dr. Curran, after talking to the OSC,
RPM permission to enter the building on February 28 and Marcn 1
to manufacture some goods. E?A stopped its activities inside tne
building for those two days. •
-------
March 10. 1937 - OSHA lifted its Notice of Alleged Imminent Danger.
Westchester County Department of Healcn lifted its Notice of
Closure.
March 11, 1987 - RPM begins working 1 dayj and four nights in the
building. The day work is conditioned 'on' whether EPA is removing
explosives from' the building or sampling unknowns.
II. WHETHER RPM'S RELOCATION EXPENSES CONSTITUTE A RESPONSE
COST IN THE CONTEXT OF A REMOVAL ACTION
Section 101(23) of the Comprehensive Environmental Response,
Compenstion and Liability Act, as amended, 4210. S.C. $$ 9601 et
seq. (Hereinafter "CERCLA") defines a removal faction ass
•the clean up or removal of released hazardous
substances from the environment, such actions
as may be necessary taken in the event of •
threat of release of hazardous substances into
tie environment, such actions as may be necessary
to monitor, assess and evaluate the release
or tnreat of release of hazardous substances,
the disposal of removed material^ or the
taking of sucn other action as may be
necessary to prevent minimize or mitigate
garage to trie public health, welfare or the
environment, whxcn may otherwise result from
j release or threateneo release . ..
i*mphasis added)
£?Vs initial basis for exluding RPM from the building was due to
the fear that the removal team might do something tnac would
cause * release and harm RPM as wall as EPA. ATSDR and the
Westcnester County Department of Health,, however, made recommendations
of exclusion and excluded RPM from the building at all times
because 5F* might do something that would cause a release in the
reacral area and thereby threaten the public health and welfare.
Indeed, R?M worked with various chemicals, including TCS and heat
in ice laminating business. There is no fire wall between tne
?.?^ previses and the premises where the removal action- is taking
place. Tne removal area contained, and to some extent still does
eon tarn, many shock sensitive, flammable and other dangerous
cS«ni=als*. Hence, excluding RPJl.from tne building was an action
necessary to 'prevent, minimize ot mitigate damage to tne public
frealtn or welfare or to tne environment, which may otherwise
result fro« a release or threat pf release'.
• I
i =-elives it -as identified most of tne shock sensitive
:r2l3 and --as slacad cne« eitner in magazines located on
A -a!<-i- vault, also Iccatad on site.
-------
Consequently, RPM's exclusion* from tne building waa a part ot
tne removal action being undertaken at the site, tor wnich RPM
incurred, among other costs (i.e. business losses), relocation
costs- The only iaau« r«mainif*| is whether those relocation \
costs be 'compensated from the fluncT TT ~~ x I ***-"
—* 1 = "' J
11. WHETHER RPN's RESPONSE COSTS ARE COMPEKSABLE UM.-ER CS£CLA
One of the many purposes of CSRCLA is compensation of innocent
victims of a release of hazardous substances or pollutants or
contaminants which may affect the public* health or welfare.
In that regardr a person whose water supply is contaminated*
through no fault of his own, is often provided bottled drinking
water by EPA, paid for out of the fund. In many instances/
businesses, such as restaurants,'ate provided bottled water by
E?A. Hence, a legitimate use of the Fund is to compensate innocent
victims of pollution. I
Section 101(23), in defining fremoval", is silent as to relocation
of businesses without specifically excluding the possibility of
compensation. Indeed, the closest the definition comes to
addressing relocation at all is:
The term includes, in addition, without being limited to,
... temporary evacuation and housing of threatened individuals
not otherwise provided for ...
Hence, a strong argument can be aade that businesses can be
compensated for their relocation costs.**
I
I
*/We believe it is inconsequential tnat the County, rather than
EPA, took the legal action to actually exclude RPM from the
building. The National Contingency Plan, 40 C.P.R. SS 300.22 and
.24 requires the federal government to work together with sta-e*.
and local governments to respond expeditiously to emergency
situations. To argue that the County's closure order was not
Intimately related to and a part of tne total response action
taking place at the site is inconsistant witn the cooperative
intent of CERCLA. . '
"*/ Moreover, if the instant action was a remedial action, RPM
would be compensated for its relocation expenses. Section 101(24)
in defining "remedial" action provides in part:
"...The term includes the costs of permanent relocation of
residents and business ... (which! the President determine:
that alone or in combination with other measure-, ...
may otherwise be necessary to protect tne public health
or welfare ...
-------
\ »
-7-
*"***' ***** *-•«-«»<*». -• V«m»q.1- pother e,»Hlie«»lJ\
v-pg-onibits eo»pen«at-ion «>» • n...^««. •^•ygj"***' J
"relocation costs. The pnrase the "taking of. such other act^ans/
IVHkay b* necessary to prevent, minimize or pitigate damage to
_tne,public^h«alth or welfare or to the environment* 42 Q.S.C. S
101(23)* gives SPA v«ry broad authority, to d«t«rmin« what aci
ar« n«c*««ary in any giwn situation. Further, th« list of
actions that constitute r««oval actions contained in Section
101(23) is preceded by the term fwithout'being limited to".
Hence, just wnat constitutes a reaeval action lies within the
sound discretion of EPA.
Without making any broad a,f;affr*ian« *<»n r—r».-* t-n
/'Businesses tor tne relocation costs in removal .actions, the Region
// feels that the eireumgRfnc»« jmd^equiti** lo* tttUs e»«« lnstiEV— """
I ' eaikn«nsaeian- Th«anlv ra*«nn MT« p RDM l*«ll«<•* t«d fraa fcha •!«••
Jeoapensation. The only reason that H17H teUocatea erom the sit*
was oocause of EPA's removal action. Rencia, any costs incurred
by RPn should be considered a response ease and paid for by the
fund. i I
IV. CONCLDSION !
We have tried to set forth, as clearly as possible, the factual
setting which underlies the conclusion tnat.RPM should be com-
pensated for its relocation costs. We would appreciate vour
Region's belief t^hat RPM'a reiaeation to its
^•^n^ and tne move baek to the site,"™
We also invite your opinion on how to treat tnere location ttkpeses
tAat RPfl may incur* should it decide, to exercise its option to
buy tne new building.* •
^
Taank you for your cooperation on ^his matter
cc: Timothy Fields | i
-lIliSB ROSS J
I
,T.--« Region is in tfte process of discussing witn Region 7 tne
rc=»djres it uses during the relocations it has been involved
it.-i srsd ta £ind oct wnetfter ifc has either temporarily or peraanently
lscatsd ccsiaesses. Me are also in tne process of determining
et-.-er r.-e F2*-A nae any- regulations or procedures regarding
.c- relccatic- cosrs can fairly be paid, as -well as trying to
rarnine S'-rselves, rf^at costs constitute relocation costs and
ec--r t.-«f are c^ncer.saele, and if so, wnat portion is ,
-------
Employee Occupational Health and Safety
-------
Wtinngton OC 204*0
OSWER Directive Initiation Request
1 w«
9285.3-02
2. Ondmtflf lnform«t)«n
N«m« o( Conuci Pcraon
Rod TNirnin
• MM COM jOffiea
MT '
FKP/KRT
Employee Occupational Health & Safety
4. iw/nm«/y of Ovteuvc imouM on«f tuunwit of pwpo««i
Provides instructions reminding EPA employees that they oust comply with OSHA.
9up«rfund,CDCIA.SAKA
o. OOM it SuppiwiMm fn
LK D"
n* o
-CopedByAA/DAA Qj •-
C-NrA«M»4
9. S«yituf> of Lnd OlScc 0»«c»«« Cooronuor
Richard Ifyde
10. N»m« and TiM ol Acpromng OtEoai
Win Bnrf.pr, Assisfanl- AAm'rriafrarnr
7/7/87
7/7/87
EFA F«rm 131S-I7 (««v. «-<7) Prmeus Moons m OMOMU.
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE^
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 204«0
JUL 71987
OP'ICI OP
SOLID WASTt AMD tMtHOINCV *,J
OSWER Directive 9285,j]
MEMORANDUM
SUBJECT: 1 Employee.&cupallonal Health and Safety
VI ;l jtl' V- &
FROM: >L Wfnstoh Porter, Assistant Administrator
yfflce of Sol Ip Waste and Emergency Response
TO: Addressees
As we Initiate our field activities under the Superfund Amendments
and Reauthor1zat1on Act of 1986 (SARA), I wish to remind everyone that all
EPA employees are required to comply with the Federal Occupational Health
and Safety Act (OSHA). In addition to complying with such federal standards
as 29 CFR 1910/1926, EPA employees must also adhere to the appropriate EPA
orders, policies, and guidelines pertaining to employee occupational health
and safety. For example. EPA Order 1440.3 requires all EPA employees
using respiratory protection devices to participate 1n a medical monitoring
program. I want to encourage all Regions and OSWER offices to continue to
Implement effective medical monitoring programs for Us employees. EPA
Order 1440.2 requires all EPA employees engaged 1n routine field activities
to be trained and to receive training certification levels commensurate
with the degree of anticipated hazards. EPA Order 1440 specifies the
responsibilities of all Agency employees 1n this area.
More recently, section 126(a) of SARA requires the Secretary of
Labor, within one year of the date of enactment, to promulgate standards
(29 CFR 1910.120) for health and safety protection of employees engaged
In hazardous waste operations. The Secretary Is also required 1n Subsec-
tion 126(e) to Issue Interim final regulations within 60 days after
enactment of SARA. The Interim final rule was published 1n the Federal
Register (Vol. 51. No. 244, pages 45654 - 45675) on December 19, 1986.
This Interim final rule took effect upon the date of Issuance (December
19. 1986), and It was OSHA's judgment that all provisions could be fully
Implemented not later than 90 days after Issuance (March 17. 1987). As
with other OSHA Section 6 Standards, EPA 1s required to comply with 29
CFR 1910.120 per Executive Order 12196 (February 1980).
-------
(OSWER Directive 9285.3-02)
-2-
tn addition, section 126(f) of SARA requires the Administrator
of EPA. within 90 days after the promulgation of final regulations under
section,126(a), (January 17, 1988), to promulgate standards Identical
to 29 CFR 1910.120 (those promulgated by the Secretary of Labor under
section 126(a)j. EPA's Workgroup No. 2427 (Hazardous Waste Operations
and Emergency Response Worker Protection Standards), chaired by Rod Turpin,
Safety and Occupational Health Manager, Environmental Response Team
(ERT), Edison, NJ, has been established and Includes representatives of
five (5) EPA Regions, two (2) States, and OSHA. In addition, the following
EPA Headquarters offices are represented: Office of Policy, Planning and
Evaluation, Office of Pesticides and Toxic Substances, Office of General
Counsel, Office of Research and Development, Office of Solid Waste and
Emergency Response, and the Occupational Health and Safety Staff. The
objective of this Workgroup Is to:
1. Promulgate EPA Worker Health and Safety Standards
Identical to OSHA's standards (29 CFR 1910.120)for those 27
States which do not have In effect an approved State Plan under
the Occupational Safety and Health Act of 1970.
2. Develop an Implementation/enforcement strategy for these EPA
standards.
In order to better Implement both EPA and OSHA Occupational Health
and Safety requirements, OSWER has established an Integrated Health and
Safety Program for the sole purpose of assisting OSWER In providing a
safe and healthy work environment for Its field activities. This program
Is managed by Rod Turpin. ERT. Edison, NJ. Please feel free to call him
at 201-321-6745 (FTS 340-6745) for any additional Information.
Thank you 1n advance for your assistance and dedication 1n making
our work environment a safe and healthy one.
Addressees:
Regional Administrators, Regions I - X
Henry L. Longest II (MH-548)
Mare1a E. Williams (WH-562)
Ronald Brand (WH-562A)
Gene A. Luctro (WH-527)
cc: David Weltzman (PM-273F)
Waste Management Division Directors, EPA Regions I-X
Environmental Services Division Directors, EPA Regions I-X
-------
EPA Interim Guidance on Indemnification
ofrSuperfund Response Action
Contractors Under Section 119 of SARA
-------
x> EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER:
9835.5
TITLE: EPA Interim Guidance on Indemnification of Super-
fund Response Action Contractors under Section
119 of SARA
APPROVAL DATE: October 6,
EFFECTIVE DATE: October 6'
ORIGINATING OFFICE: OWPE
H FINAL
D DRAFT
LEVEL OF DRAFT
0 A — Signed by AA or DAA
D B — Signed by Office Director
DC — Review & Comment
REFERENCE (other documents):
1987
1987
5 WE ft OSWER OSWER
DIRECTIVE DIRECTIVE Dl
-------
United States Environmental Protection Agency
Washington. DC 20460
OSWER Directive Initiation Request
1. Directive Numoer
9835.5
2. Originator Information
Name of Contact Person
Tom Gillis
Mail Code
*WH 527
Office
OWPE
Telephone Code
382-A526
3 T.tle
EPA Interim Guidance on Indemnification of Superfund Contractors under Section
of SARA
4 Summary ol Directive (include one! statement of purpose) •
Provide Guidance to EPA Regional Personnel on EPA Superfund RAC Indemnification;
including EPA Interim Guidelines, Procedures for Processing Indemnification Requests
and Model Indemnification Contract Language. '
5. Keywords
Superfund, CERCLA, Indemnification, RAC, Contrator, Liability, Contracts
oa. Does inis Directive auperseae rrevious uireciive(s)'
b. Does tt Supplement Previous Directive(s)?
No
No
Yes What directive (number, title)
Yes What directive (number, title)
7 Draft Level
A - Signed by AA/DAA j 8 -• Signed by Office Director
C - For Review & Comment
n°-»
8. Document to be distributed to States by Headquarters?
Yes
JL
No
This Request Meets OSWER Directives System Format Standards.
9. Signature*)! Lead Office Directives Coordinator s^~\
/y^L^ ot tiMst-vJ
10 Name and Title of Approving Official
Date
'<>/* /C7
Date
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
ol
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE DIRECTIVE
-------
•UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OSVER Directive 9835.5
OCT 6 IS87
HBHORAMDDH
SUBJECT;
PROM:
TO:
EPA Interim Guidance on Indemnification of Superfund
Response Ac tfrpa .Contractors Onder Section 119 of SARA
ton Porter, Assistant Administrator
Solid tfajb&e an4 Emergency Response
i<
ting Assistant Administrator
on and Resources Management
Regional Administrator, Regions I-X
Regional Counsel, Regions I-X
Director, Waste Management Division
Regions I, IV, V, VII, and VIII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Region III and VI
Director, Toxics and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
Director, Environmental Services Division
Regions I, VI, and vii
Subject to certain restrictions. Section 119 of the
Superfund Amendments and Reauthorization Act of 1986 (SARA)
authorize* the Environmental Protection Agency (EPA)1 to provide
indemnification2 to response action contractors (RACs) working at
Superfund sites for States, potentially responsible parties
(PRPs), and EPA (including RACs working for the U.S. Army Corps).
1 Onder Executive Order 12580, the President has also
authorized other Federal agencies to indemnify RACs working for
those agencies.
2 "Indemnification" is an agreement whereby one party
agrees to reimburse a second party for losses (in this case
liability losses) suffered by the second party. *
-------
2 OSWER Directive 9335 5
•^
of EngineeJf at EPA-lead sites)3. The purpose of this meitio is tr
describe h|v EPA may provide indemnification to RACs using
Section lit authority.
Background
Response action contractors have traditionally relied on
commercial liability insurance or indemnification to sufficiently
offset their potential liability risks from participation in the
Superfund program. During the Superfund reauthorization debate,
the RAC community identified several factors which, the RACs
contended, impaired their ability to adequately offset risk.
These factors included:
o Potential subjection to strict, joint and several liability
under Superfund and under some state laws; and
o Inability of the commercial liability insurance market to
provide liability insurance coverage to RACs involved in the
Superfund cleanup program that is both adequate and
affordable.
Prior to the reauthorization of CERCLA, EPA provided
indemnification to RACs working for EPA through contract
authority implementing CERCLA. EPA took this step in order to
retain qualified contractors, given the absence of pollution
liability insurance coverage. Onder this old indemnification
agreement, the Federal government indemnified RACs above an
initial $1 million for third party liabilities and defense
expenses. The indemnification agreement was void in cases of
gross negligence or willful misconduct.
3 SARA Section 119(e)(2) defines "response action
contractor* as:
a. any person who enters into a response action contract (which
is defined in part as any written contract or agreement to
provide any CERCLA removal or remedial action at a facility
listed on the NPL, or to provide any ancillary services
related to such response) with respect to any release or
threatened release of a hazardous substance or pollutant or
contaminant from a facility and is carrying out such a
contract; and
b. any person retained or hired by the person who enters into a
response action contract, to provide any services related to
a response action; and
c. any person, public or nonprofit private entity, conducting a
field demonstration pursuant to SARA Section 311(b) (i.e.,
the "Alternative or Innovative Treatment Technology Research
and Demonstration Program").
-------
OSWER Directive 9835.5
SectSit 119 of SARA responds to many of the concerns of the
RAC eomunty by:
o Establishing a standard of negligence for actions brought
against RACs under Federal
o Authorizing EPA to provide to RACs, on a discretionary
basis, United indemnification against pollution liability
arising from RAC negligence; and
o Providing express statutory authority for indemnification
and a funding mechanism.
The approach taken in Section 119 provisions is based on the
following key points:
o A Federal liability standard of negligence, combined with
RAC indemnification which is subject to limits and
deductible*, provides adequate performance incentives for
RACs working in the Superfund program;
o RAC indemnification provides an adequate substitute for
insurance;
o Discretionary indemnification is an interim vehicle that
will keep the Superfund program operative until the
insurance industry returns to the RAC liability insurance
market; and
o Discretionary indemnification does not create a Federally
intrusive insurance program that interferes with private
sector efforts to develop RAC liability insurance coverage.
* The Federal standard of negligence under Section 119
applies only to Federal law. It does not preclude States fron
applying their own statutory law or common law liability
standards, which may in some cases be strict liability. Response
action contractors sued in Federal courts are under a "standard
of care" defined by Federal law as negligence. However, if an
action is brought under state law, a strict liability standard
could apply.
-------
OSWER Directive 9835.J
IFA Task FotiM OB XAC indemnification
To avoid program delay*, a Task Pore* waa established to
determine how -BPA will provide indemnification to RACa working in
tha Suparfund program. Th'a Task Porca la compoaad of
rapraaantativaa from EPA'a Offica of Waste Programs Enforcement
(OWPE), Offica of Emergency and Ramadial Rasponsa (OERR), Office
of Solid tfaate (OSW), Offica of Ganaral Counsel (OGC), Office of
tha Comptroller
-------
OSWBR Directive 9835.5
comment. lbanwhile, SPA is providing contractor* with Section
119 cover&fsV on an interim basis, uaing procedures outlined in
thia memorandum. Ultimately, this coverage will be amended to
reflect guidance and regulations that will be developed in
conformance with Section 119 requirements.
A* further described in this memorandum, authorization to
provide indemnification will be made by OSWER with concurrence
from the Office of the Comptroller (OC). Authorization to
indemnify will be made upon receipt of a recommendation from the
Task Force. The OC will provide concurrence (or non-concurrence)
with recommendations to indemnify within seven calendar days of
receipt of a recommendation. Execution of indemnity agreements
will be made by appropriate Agency administrative offices.
Section 119(c)(4) mandates that RACs must meet the following
requirements before they can receive Federal indemnification for
potential pollution liability associated with Superfund response
action activities:
o The RAC must make diligent efforts to obtain insurance
coverage from non-Federal sources to cover pollution
liability; and
o In the case of a RAC contract covering more than one
facility, the RAC agrees to continue to make such diligent
efforts each tine the RAC begins work under the contract at
a new facility.
Section 119(c)(4) also requires that the following
circumstances must exist before a RAC can receive Federal
indemnification for potential pollution liability associated wit*
Superfund response action activities:
o At the time the response action contract is entered intc,
insurance is not available, at a "fair and reasonable
price", in sufficient quantity to offset potential RAC
pollution liability risk; and
o Adequate insurance to cover such liability is not generally
available at the time the response action contract is
entered into.
In future guidance (i.e., the guidance which is to be
published for public comment), EPA plans to include guidelines
for determining whether insurance is "generally available* cr is
"fairly and reasonably priced". For the purpose of t&is interim
guidance, EPA has determined, based on information currently
available, that Superfund RACs are unable to obtain reasoaari:
priced pollution liability insurance. Therefore, RACs are
eligible to receive indemnification under Section 119 fro* r>C£ cf
-------
6 OSWER Directive 9835.5
SARA. Bovtt^fCf EPA will require that RACs seeking Federal
indemnification »eet the following requirements:
o Within 30- days of signing an indemnification agreement with
EPA, RACs must submit*to EPA (or to the appropriate State
Contracting Officer) written documentation concerning the
efforts they have made to date to secure pollution liability
insurance coverage (e.g., a RAC could submit a written
statement from an insurance broker stating that the RAC has
attempted to secure pollution liability coverage from
insurance carriers in the past six months).
o If the RAC has secured pollution liability coverage, it must
submit to EPA (or to the State Contracting Officer) a copy
of the policy and declaration page; and
o Every twelve months (or more frequently, if EPA determines
that there has been a significant change in circumstances
concerning the availability of pollution liability
insurance) the RAC must submit to EPA (or to the State
Contracting Officer) written documentation addressing the
additional efforts the RAC has made to secure pollution
liability insurance coverage including:
Copies of applications submitted to three known
underwriters of pollution liability insurance;
If pollution liability coverage was denied by an
underwriter, a summary of the reasons why such coverage
was denied;
A status report of any pollution liability insurance
obtained. The report would include: 1) type of
coverage; 2) premium charged; 3) limits of coverage; 4)
deductible levels, and any other major terms and
conditions of the insurance coverage. A copy of the
actual policy and declaration page could be provided in
lieu of a written status report;
If pollution liability coverage was offered by an
underwriter, but not accepted by the RAC, a report on
the insurance offered (such as the "status report"
required above), and a summary of the reasons why such
coverage was not accepted; and
A status report concerning the alternative pollution
liability risk transfer mechanisms the RAC has pursued
other than commercial pollution liability insurance
(e.g., risk retention groups, purchasing groups,
association captives).
-------
7 OSWER Directive 9835.5
This information should be forwarded to the appropriate EPA
official fftc State Contracting Officer). This information will
be reviewed by tbe Task Force as needed.
As required under the interim guidelines listed above, EPA
expects RACs to demonstrate the extent to which they have
attempted to secure pollution liability insurance coverage. EPA
also expects that RACs will continue to monitor the market for
pollution liability insurance, and continue to seek and secure
such insurance coverage (however limited) from commercial
insurance carriers or through alternative risk transfer
mechanisms (e.g., self-insurance pools).
Indemnification of RACs Working for 1PA
Pre-SARA indemnification terms will apply to work performed
at a site after the date of enactment (DOE) of SARA if response
work at the site was initiated under an EPA contract prior to the
DOE of SARA.
EPA will enter into new indemnification agreements (See
Attachment A), subject to Section 119 authority, with:
o RACs who are currently working under contract with EPA, for
work they will initiate at a new site after DOE of SARA; and
o RACs receiving new contracts (or new cooperative agreements,
in the case of Site Demonstration projects) with EPA after
DOE of SARA for Superfund response action activities.
RACs currently under contract with EPA have been alerted to
the changes that will be forthcoming to their indemnification
agreements with EPA. EPA headquarters personnel in the
Procurement and Contracts Management Division of the Office of
Administration have been trained on the use of Section 119 and,
with the assistance of the Task Force, will administer Section
119 indemnification interim procedures for EPA contractors.
Requests for indemnification of EPA contractors will be subject
to the approval of OSWER and concurrence of OC.
-------
indemnification of EACs Working for States
OSHER Directive 9835.!
Secti«« 119(c) (2) authorize* the indemnification of RACs
working for States or political aubdiviaiona of State* (purauant
to a Section 104(d)(l) agreement with EPA) for new work initiated
at Superfund site* from DOE of SARA. EPA may indemnify RACa
performing reaponae action activities for a State at a State-let^
Superfund site after DOE of SARA. EPA will offer indemnification
to RACa working for a state only if:
o The RAC's response action is part of new site work initiattd
at a Superfund site after DOE of SARA and it is related
directly to cleanup of the site*
o RACs working for a State must meet all of the circumstances
and issuance requirements set forth by Section 119(c)(4), as
listed above; and
o RACs working for a State must meet all of EPA's interim
guideline requirements, as listed previously on pages five
and six.
EPA will not offer indemnification to RACs for site work they
performed for States prior to DOE of SARA. Any EPA
indemnification provided to a RAC(s) working for a State(s) will
be subject to limits, deductible*, and other restrictions as
required by Section 119(c)(5).
Ontil EPA issues final guidance and regulations, all
request* for EPA indemnification of a RAC working for a State at
a Superfund site will be processed via the Task Force. States
should submit requests to both the Indemnification Task Force,
c/o Director, Office of Emergency and Remedial Response (OERR) ,
and to the Regional Superfund Branch Chief. Requests should
identify the Regional Site Coordinator and State contact, and
should include pertinent information regarding Section 119(c)(4)
requirements as discussed previously. If the Task Force
recommends approval of the indemnification request, the Office of
the Comptroller will provide concurrence (or non-concurrence)
within seven calendar days of receipt of the recommendation.
Final approval for EPA indemnification of a State RAC will be
made by the Director of the Office of Emergency and Remedial
Response. If approval is authorized, then the Grants
Administration Division will implement the approval through a
special condition to be included in the State/EPA cooperative
agreement (See Attachment A).
-------
9 OSWER Directive 9835.5
V
Indemnification of 1AC« working for Other Federal Agencies
»•
Section 119(c)(2) authorizes the indemnification of RACs
working for ojrher Federal agencies at Superfund sites from DOB of
SARA. A delegation of authority from the President authorizing
other Federal Agencies to use Section 119 provisions was issued
on January 26, 1987. Other Federal agencies follow all BPA
guidance and regulations with respect to Section 119. Other
Federal agencies that use Section 119 authority must provide
their own source of funds (e.g.,their agency appropriation) to
pay all indemnification costs (e.g./ claims and legal defense
costs).
At some Superfund sites, the U.S. Army Corps of Bngineers
manages response actions pursuant to an interagency agreement
with BPA. For Section 119 indemnification purposes, any RAC
working as a contractor for the Corps of Bngineers at such sites
(and where, for remedial actions, the site is listed on the HPL)
is considered to be working for EPA rather than for some "other
Federal agency". EPA will offer the same indemnification to
contractors procured by the Corps of Engineers that it offers to
contractors procured by EPA.
Indemnification of RACs Working for PBPs
Under Section 119(c)(2) authority, EPA can, in limited
circumstances and subject to strict financial tests, indemnify
RACs performing response action activities for PRPs subject to a
consent order or decree at Superfund sites after DOE of SARA.
EPA will use its authority to indemnify RACs working for PRPs
only in extremely limited cases, e.g., where EPA indemnification
of the PRP RAC is the solution of last resort. EPA will offer
indemnification to RACs working for PRPs only if;
o The PRPs are unable to provide adequate indemnification, and
as a result, are unable to obtain the services of a
qualified RAC;
o The RAC1s response action is part of new site work initiated
at a Superfund site after DOE of SARA, and the action is
related specifically to the cleanup of the site;
o RACs working for PRPs meet all of the issuance requirements
set forth by Section 119(c)(4);
o The circumstances set forth in Section 119(c)(4) exist; and
o RACs working for PRPs meet all of EPA's interim guideline
requirements.
-------
10 OSWER Directive 9835.5
EPA ilfil not offtr indemnification to RAC» for work
performed iMfr PRP« prior to DOE of SARA, nor for any PRP RAC
response avfeivity that is not related specifically to a remedy «t
a Super fund* site.
Further, Section 119(c)(S)(C) of SARA requires that, before
EPA can enter into an indemnification agreement with a RAC
performing work under contract with a PRP(s) at a Superfund
sited), EPA must determine the amount which the PRP(s) is able
to indemnify the RAC. Zn making such a determination, EPA shall
take into account the total net assets and resources of the
PRP(s) with respect to the facility at the time of such .
determinations. If EPA determines that the amount which the
PRP(s) is able to indemnify the RAC is inadequate, then EPA may
enter into an indemnification agreement with the RAC to meet the
anticipated shortfall. EPA will consider the combined
capabilities of all the PRPs at a site to determine whether, af a
group, they are capable of providing adequate coverage. In
general, the Agency expects to use this provision only in cases
where PRPs are small firms with few assets. Therefore, Regions
should not make requests for Federal indemnification where PRPs
are large corporations with substantial assets or where the PRPs,
as a group, have substantial assets. As a result, EPA does not
expect requests for Federal indemnification to become an integral
part of settlement negotiations.
EPA plans to provide additional guidance in the future
concerning the determinations that need to be made as a
prerequisite to indemnifying RACs working for PRPs (such as
defining "net assets and resources" of the PRPs, and whether the
PRPs are "unable to provide adequate indemnification"). Until
EPA distributes this guidance, all such determinations will be
made by the Task Force.
EPA indemnification of a RAC working for a PRP is a measure
of last resort. Zf EPA does provide indemnification in these
cases, the consent decree (or order) should specify terms and
conditions, using the model EPA indemnification agreement for
RACs working for PRPs shown in Attachment A. Zf EPA enters into
an indemnification agreement with a RAC working for a PRP(s), the
RAC must:
o Retain financial responsibility for a deductible amount if
commercial pollution liability insurance is unavailable or
unreasonably priced; and
o Exhaust all administrative, judicial, and common'law claims
for indemnification against all PRPs participating in the
cleanup of the facility before EPA can pay a claim.
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11 OSWER Directive 9835.5
If a BAC has received partial indemnification from a PRP(s),
EPA aay aU|I provide indemnification in caaea where the PRP
indemnification it deemed insufficient, and in mixed funding
caaea. EPA Bay provide indemnification above the PRP
indemnification. The consent decree should specify the terms and
conditions using the model EPA indemnification agreement shown in
Attachment A.
All requeats for EPA indemnification of a RAC working for a
PRP(a) at a Superfund site should be submitted to both the
Indemnification Task Force, c/o Director) Office of Haste
Programs Enforcement (OWPE), and to the Regional Superfund
Enforcement Branch Chief. Pleaae identify the Regional Site
Coordinator and the Regional Counsel's Site Representative.
Include pertinent information regarding the number of PRPa,
financial profile of the PRPs, type of work to be performed,
etc., such that the Task Force can make determinations per
Section 119(c)(4) and Section 119(c)(5).
Upon determining that a RAC meets all of the circumstances
and requirements set forth in Section 119 and in EPA interim
guidelines, the Task Force will evaluate an amount to which the
PRP(s) is able to indemnify the RAC and an amount to which EPA
will indemnify the RAC in excess of the PRP indemnification
amount. Any EPA indemnification provided to a RAC(s) working for
PRP(s) will be subject to limits, deductibles, and other
limitations as required by Section 119(c)(5). If the Task Force
recommends approval of the indemnification request, the Office of
the Comptroller will provide concurrence (or non-concurrence)
within seven calendar days of receipt of the recommendation.
Final approval for EPA indemnification of a PRP RAC will be made
by the Director of OHPE.
RACS Working for PEP» Without BPA Indemnification
Those RACs working for PRPs at Superfund sites who do not
receive indemnification from EPA may either receive no
indemnification at all, or may receive indemnification from PRPs
only. For those RACs working with no indemnification, PRPs
should demonstrate that the RAC is qualified to perform the work
adequately, has sufficient financial capability to complete the
projected work, and demonstrates financial responsibility for
potential third party liability costs. This can be ensured
through a combination of adequate competition in the contract
procurement process and a demonstration of financial
responsibility. Such a demonstration can consist of purchase of
performance bonds, letters of credit, insurance, maintenance of a
trust fund, etc. A consent decree should specify the
aforementioned.
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12 OSWER Directive 9835.5
For thVb* RAC« receiving indemnification from PRPs only (and
.where EPA dMRfts the indemnification to be adequate), RACs should
be qualified to perform work adequately. This can be ensured
through a combination of adequate competition in the contract
procurement process, and through a demonstration of financial
responsibility. The PRP indemnification is sufficient
demonstration of financial responsibility; therefore, performance
bonds, letters of credit, etc., are not required. The consent
decree should specify the aforementioned as well as the
indemnification terms and conditions.
Publicly Owned Treatment Works
Section 119(c)(5)(D) specifically prohibits EPA from
indemnifying an owner or operator of a facility regulated under
the Solid Waste Disposal Act. Therefore, publicly owned
treatment works subject to permit-by-rule provisions cannot be
indemnified (nor can any other permit-by-rule facility, such as
an underground injection facility). The intent of this provision
is to prohibit EPA from offering indemnification to off-site
treaters or disposers of Superfund hazardous waste. Therefore,
while POTHs not subject to RCRA regulation (i.e., POTHs without a
permit-by-rule) are not explicitly prohibited from EPA
indemnification authority under Section 119, the Agency has
determined that an extension of indemnification authority to any
POTW would not be consistent with Congressional intent in Section
119. Therefore, EPA will not provide indemnification to POTWs
under Section 119 authority.
Summary
This memorandum describes the current Federal
indemnification provisions for response action contractors
working in the Superfund program as provided in Section 119 of
SARA. The statute gives the Federal government the discretionary
authority to indemnify RACs for liability arising out of
negligence. Acts of gross negligence and willful misconduct are
expressly excluded from the indemnity provision. The Section 119
indemnity provision does not preempt the rights of States to
enforce a standard of strict liability.
Federal indemnification is meant to be an interim vehicle
which will keep the Superfund program operative until the
insurance industry returns to the market. It is not intended to
create a Federally intrusive program that will interfere with
private sector efforts to develop RAC liability insurance
coverage.
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*: •
13 OSWER Directive 9835.5
Please direct all questions and comments to Robert Mason at
ttS 382-4015 or Tom Gillis at PTS 382-4524
Attachments
A. Model Indemnification Agreements
B. CBRCLA (as amended) Section 119
cc: Administrator
Deputy Administrator
General Counsel
Regional Grants Office, Regions Z-X
Regional Financial Management Office, Regions Z-X
Regional Superfund Branch Chiefs, Regions Z-X
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Attachment A
MODEL INDEMNIFICATION AGREEMENTS
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This attachment contains model BPA indemnification
agreements f «• ase by EPA, States, and PRPs when RACs seek
indemnif icatwm from BPA. Any deviation from the model language
must be approved by the EPA Indemnification Task Force. Pour
models are attached:
I. Hodel EPA/RAC Indemnification Agreement
II. Model State Cooperative Agreement Indemnification Special
Condition
III. Hodel EPA/RAC Indemnification Agreement for RACs under
Contract with PRPS
IV. Model EPA/ SITES Program Technology Vendor Indemnification
Agreement
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MODEL EPA/RAC INDEMNIFICATION AGREEMENT
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*•
J»_."
H. Insurance — Liability to Third Persons —
Commercial Organizations
(EPAAR 155T.228-70) (APR 1984) (with deviation)
(a) This Clause H will be modified by the
mutual agreement of the parties hereto within 180 days of the
EPA's promulgation of final guidelines for carrying out the
provisions of Section 119 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended
(CERCLA).
(b) The Contractor shall procure and maintain such
insurance as is required by law or regulation, including that
required by FAR Part 28, in effect as of the date of execution of
this contract, and any such insurance as the Contracting officer
may, from time to time, require with respect to performance of
this contract.
(c) At a minimum, the Contractor shall procure and maintain
the following types of insurance.
(1) Workmen's compensation and occupational disease
insurance in amounts to satisfy State law;
(2) Employer's liability insurance in the minimum amount of
$100,000 per occurrence;
(3) Comprehensive general liability insurance for bodily
injury, death or loss of or damage to property of third persons
in the minimum amount of $1,000,000 per occurrence;
(4) When vessels are used in the performance of the
contract, vessel collision liability and indemnity liability
insurance in such amounts as the Contracting Officer may require
or approve: provided, that the Contractor may, with the approval
of the Contracting Officer, maintain a self-insurance program.
All insurance required pursuant to the provisions of this
paragraph shall be in such form and for such periods of time as
the Contracting Officer may,.from time to time, require or
approve and with insurers approved by the Contracting Officer.
(d) The Contractor further agrees that it will make
diligent efforts throughout contract performance in accordance
with EPA guidelines to obtain adequate pollution liability
insurance.
(e) The Contractor agrees, to the extent and in the manner
required by the Contracting Officer, to submit for the approval
of the Contracting Officer all insurance maintained by the „
Contractor in connection with the performance of this contract ^
and for which the Contractor seeks reimbursement hereunder. The
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'#.
Contractor's submission shall include documentation demonstrating
its diligent efforts to obtain pollution liability insurance.
(f) The Contractor shall be reimbursed, for the portion
allocable to this contract, the reasonable cost of insurance
(including reserves for self-insurance) as required or approved
pursuant to the provisions of this contract clause.
(g)(l) Pursuant to Section 119 of CERCLA, the EPA will hold
harmless and indemnify the Contractor against any liability .
(including the expenses of litigation or settlement) for
negligence arising out of the Contractor's performance under this
contract in carrying out response action activities. Such
indemnification shall apply only to liability not compensated by
insurance or otherwise and shall apply only to liability which
results from a release of any hazardous substance or pollutant or
contaminant if such release arises out of the response action
activities of this contract. Further, any liability within the
deductible amounts of the Contractor's insurance will not be
covered under this contract clause H .
(2) For purposes of this clause (g)r if the Contracting
Officer has 'determined that the insurance identified in paragraph
(d) is not available at a reasonable cost, the Government will
hold harmless and indemnify the Contractor for liability to the
extent such liability exceeds $100,000.00.
(3) The Contractor shall not be reimbursed for liabilities
as defined in (g) (including the expenses of litigation or
settlement) that were caused by the conduct of the Contractor
(including any conduct of its directors, managers, staff,
representatives or employees) which was grossly negligent,
constituted intentional misconduct, or demonstrated a lack of
good faith. Further, the Contractor shall not be indemnified for
liability arising under strict tort liability, or any other basis
of liability other than negligence.
(h) The Government may discharge its liability under this
contract clause by making payments directly to the Contractor or
directly to parties to whom the Contractor may be liable.
(i) With prior written approval of the Contracting Officer,
the Contractor may include in any subcontract under this contract
the same provisions in this clause whereby the Contractor shall
indemnify the subcontractor. Such a subcontract shall provide
the same rights and duties and the same provisions for notice,
furnishings of evidence or proof, and the like, between the
Contractor and the subcontractor as are established by this
clause. Similar indemnification may be provided for
subcontractors at any time upon the same terms and conditions.
Subcontracts providing for indemnification within the purview of'
this contract clause shall provide for prompt notification to the
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Contractor which i» covered by this contract clause, and shall
entitle the Government, at its election, to control, or assist in
the settlement <5r defense of. any such claim or action. The
Government will indemnify the Contractor with respect to his
obligation to subcontractors under such subcontract provisions.
The Government may discharge its obligations under this paragraph
by making payments directly to subcontractors or to parties to
whom the subcontractors may be liable.
(j) Zf insurance coverage required or approved by the
Contracting Officer is reduced without the Contracting Officer's
approval, the liability of the Government under this contract
clause will not be increased by reason of such reduction.
(k) The Contractor shall:
(1) Promptly notify the Contracting Officer of any claim or
action against the Contractor or any subcontractor which
reasonably may be expected to involve indemnification under this
contract clause;
(2) Furnish evidence or proof of any claim covered by this
contract clause in the manner and form required by the
Government; and
(3) Immediately furnish the Government copies of all
pertinent papers received by the Contractor. The Government may
direct, control, or assist the settlement or defense of any such
claim or action. The Contractor shall comply with the
Government's directions, and execute any authorizations required
in regard to such settlement or defense.
(1) Reimbursement for any liabilities under this contract
clause will not exceed appropriations available from CERCLA's
Hazardous Substance Superfund (except to the extent that Congress
may make appropriations to specifically fund any deficiencies) at
the time .such liabilities are represented by final judgments or
by settlements approved in writing by the Government.
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II
MODEL STATE COOPERATIVE AGREEMENT
INDEMNIFICATION SPECIAL CONDITION
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EPA INDEMNIFBOITION
EPA will providff indemnification pursuant to Section 119 of
CERCLA, as amended, to contractors carrying out response actions
under this agreement provided that the State certifies to EPA
that:
1. The contracts awarded under this agreement are defined in
section 119(e) of CERCLA, as amended;'
2. The contracts awarded under this agreement include the
following clause that exclusively governs EPA
indemnification:
(see attached clause)
3. At the end of each calendar year and at the end of each
project period, all statements and materials related to
pollution liability insurance submitted by the Contractors
to the State Contracting Officer will be transferred to EPA.
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Attachment i^
"•^"•™"~ «•-
(1) Pursuant to Section 119 of CERCLA, the EPA will hold
harmless and indemnify the Contractor against any third party
liability (including the expenses of litigation or settlement)
for negligence arising out of the Contractor's performance under
this contract in carrying out response action activities. Such
indemnification shall apply only to liability not compensated by
insurance or otherwise and shall apply only to liability which
results from a release of any hazardous substance or pollutant oc
contaminant if such release arises out of the response action
activities of this contract. Further, any liability within the
deductible amounts of the Contractor's insurance required by this
contract will not be covered by this clause. This Clause will be
modified by the mutual agreement of the parties hereto within 180
days of the EPA's promulgation of final guidelines for carrying
out the provisions of Section 119 (CERCLA).
(A) The Contractor shall submit to the State Contracting
Officer within 30 days of award a written statement
from an insurance broker stating that the Contractor
has attempted to secure pollution liability coverage
from insurance carriers in the past six months;
(B) If the Contractor has secured pollution liability
coverage, it must submit a copy of the policy and
declaration page to the State Contracting Officer; and
(C) Every twelve months, or as directed by the EPA, the
Contractor shall submit to the State Contracting
Officer written documentation of the additional efforts
made by the contractor to secure pollution liability
insurance coverage, including:
o Copies of applications to three known underwriters
of pollution liability insurance;
o A status report of any pollution liability
insurance obtained, to include type of coverage,
premium charged, limits of coverage, deductibles
and major terms and conditions of coverage (e.g.,
a copy of the actual declaration page could be
provided in lieu of a status report);
o If pollution liability coverage was offered by an
underwriter, but not accepted by the RAC/ a report
on the insurance offered (such as the "status
report" required above), and a summary of the
reasons why such coverage was not accepted;
o If pollution liability coverage was rejected by t
the underwriter, a summary of the reasons why such
coverage was denied; and
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A. statue report on what alternative pollution
liability risk transfer mechanisms the contractor
has pursued other than commercial pollution
liability insurance (e.g., captives, letters of
credit, group purchasing of insurance, etc.).
(2) For purposes of this clause, the EPA will hold harmless
and indemnify the Contractor for liability described herein to
the extent such liability exceeds $100,000.00.
(3) The Contractor shall not be reimbursed for liabilities
as defined herein (including the expenses of litigation or
settlement) that were caused by the conduct of the Contractor
(including any conduct of its directors, managers, staff,
representatives or employees) which was grossly negligent,
constituted intentional misconduct, or demonstrated a lack of
good faith. Further, the Contractor shall not be indemnified for
liability arising under strict tort liability, or any other basis
of liability other than negligence.
(4) The EPA may discharge its liability under this contract
clause by making payments directly to the Contractor or directly
to parties to whom the Contractor may be liable.
(5) With prior written approval of the State Contracting
Officer, the Contractor may include in any subcontract under this
contract the same provisions in this clause whereby the
Contractor shall indemnify the subcontractor. Such a subcontract
shall provide the same rights and duties and the same provisions
for notice, furnishings of evidence or proof, and the like,
between the Contractor and the subcontractor as are established
by this clause. Similar indemnification may be provided for
subcontractors at any time upon the same terms and conditions.
Subcontracts providing for indemnification within the purview of
this contract clause shall provide for prompt notification to the
Contractor which is covered by this contract clause, and shall
entitle the EPA, at its election, to control, or assist in the
settlement or defense of any such claim or action. The EPA will
indemnify the Contractor with respect to bis obligation to
subcontractors under such subcontract provisions. The EPA may
discharge its obligations under this paragraph by making payments
directly to subcontractors or to parties to whom the
subcontractors may be liable.
*
(€) If insurance coverage required or approved by the State
Contracting Officer is reduced without the State Contracting
Officer's approval, the liability of the EPA under this contract
clause will not be increased by reason of such reduction.
(7) The Contractor shall: *
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o ~ Promptly notify the Assistant Administrator,
OSWER, EPA of any claim or action against the
Contractor or. any subcontractor which reasonably
may be expected to involve indemnification under
this contract clause.
o Furnish evidence or proof of any claim covered by
this contract clause in the manner and form
required by the EPA.
o Immediately furnish the EPA copies of all
pertinent papers received by the Contractor. The
EPA may direct, control, or assist the settlement
or defense of any such claim or action. The
Contractor shall comply with the EPA's directions,
and execute any authorizations required in regard
to such settlement or defense.
o Submit any disagreements concerning EPA
indemnification to the Assistant Administrator,
OSWER, EPA for resolution. Decision by the
Assistant Administrator will constitute final
Agency action.
(8) Reimbursement for any liabilities under this contract
clause is available exclusively from the EPA and will not exceed
appropriations available from CERCLA's Hazardous Substance
Superfund (except to the extent that Congress may make
appropriations to specifically fund any deficiencies) at the time
such liabilities are represented by final judgement or by
settlements approved in writing by the EPA.
(9) Nothing in this clause shall be construed as an
indemnification agreement between the State and the Contractor.
(10) Nothing in this contract shall be construed to create,
either expressly or by implication, any contractual relationship
between EPA and the Contractor except as specifically provided in
this clause. EPA is not authorized to represent or act on behalf
of the State in any manner relating to this contract and has no
responsibility with regard to the mutual obligations of the State
and the Contractor as provided herein.
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Ill
MODEL EPA/RAC INDEMNIFICATION AGREEMENT
FOR RACS UNDER CONTRACT WITH PRPS
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MODEL CLAUSES FOR PRP CONTRACTS
Sec. Pollution Liability Insurance and Contractor
Indemnification
A. Pollution Liability Insurance
(1) The Contractor shall obtain such pollution liability
insurance (hereinafter insurance) as the EPA determines is
available at a fair and reasonable price at the time of contract
award. The cost of such insurance is an allowable contract cost.
(2) The Contractor shall report to EPA on its efforts to
obtain pollution liability insurance.
(A) Within 30 days of signing this agreement, the
Contractor shall submit to the EPA a written statement
from an insurance broker stating that the Contractor
has attempted to secure pollution liability coverage
from insurance carriers in the past six months;
(B) If the Contractor has secured pollution liability
coverage, it must submit a copy of the policy and
declaration page to EPA; and
(C) Every twelve months, or as directed by the EPA, the
Contractor shall submit to the EPA written
documentation of the additional efforts made by the
contractor to secure pollution liability insurance
coverage including:
o Copies of applications to three known underwriters
of pollution liability insurance;
o A status report of any pollution liability
insurance obtained, to include type of coverage,
premium charged, limits of coverage, deductibles
and major terms and conditions of coverage (e.g.,
a copy of the actual declaration page could be
provided in lieu of a status report);
o If pollution liability coverage was offered by an
underwriter, but not accepted by the RAC, a report
on the insurance offered (such as the "status
report" required above), and a summary of the
reasons why such coverage was not accepted;
o If pollution liability coverage was rejected by
the underwriter, a summary of the reasons why such
coverage was denied; and
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o &- A status report on what alternative pollution
liability risk transfer mechanisms the contractor
has pursued other than commercial pollution
liability insurance (e.g., captives, letters of
credit, group purchasing of insurance, etc.).
(3) If, during the period of this contract, EPA determines
that insurance or additional insurance is available, the
contractor shall obtain such insurance.
B. PRP Indemnification
[The following are minimum clauses. PRPs may include
additional, non-conflicting terms.]
(1) The PRPs will hold harmless and indemnify the Contractor
against any third party liability (including the expense of
litigation or settlement) for negligence arising out of the
Contractor's performance of this contract in carrying out
response action activities. Such indemnification shall apply
only to liability which results from a release of a hazardous
substance, pollutant, or contaminant if such release arises out
of the response action activities in this contract.
Indemnification under this paragraph will apply only to liability
not compensated by insurance, not within the deductible amounts
of the Contractor's insurance in paragraph A, above, nor within
the deductible in paragraph D, below. Indemnification provided
under this paragraph shall not exceed $ (amount
determined by EPA).
(2) Any liability subject to indemnification shall be
presented first under this paragraph.
(3) The PRPs are individually and collectively responsible
for the indemnification under this paragraph, unless otherwise
specifically provided within.
(4) If the PRPs fail to satisfy the indemnification claim
within 60 aays of its presentation, the Contractor will notify
the EPA of such failure.
C. EPA Indemnification
(1) Pursuant to Section 119 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980,
as amended (CERCLA), the EPA will hold harmless and indemnify the
Contractor against any third party liability (including the
expenses of litigation or settlement) for negligence arising out.
of the Contractor's performance under this contract in carrying
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out response iction activities. Such indemnification shall apply
only to liability not compensated by insurance, indemnification
provided in accordance with paragraph B, above, or otherwise and
shall apply only to liability which results from a release of any
hazardous substance or pollutant or contaminant if such release
arises out of the response action activities of this contract.
Further, any liability within the deductible amounts of the
Contractor's insurance in paragraph A, above, or the deductible
in paragraph D, below, will not be covered by this paragraph.
(2) This paragraph will be modified by the mutual agreement
of the parties hereto within 180 days of the EPA's promulgation
of final guidelines for carrying out the provisions of
Section 119 of CERCLA.
(3) The Contractor shall not be reimbursed for liabilities
as defined herein (including the expenses of litigation or
settlement) that were caused by the conduct of the Contractor
(including any conduct of its directors, managers, staff,
representatives or employees) which was grossly negligent,
constituted intentional misconduct, or demonstrated a lack of
good faith. Further, the Contractor shall not be indemnified for
liability arising under strict tort liability, or any other basis
of liability other than negligence.
(4) The EPA may discharge its liability under this contract
paragraph by making payments directly to the Contractor or
directly-to parties to whom the Contractor may be liable.
(5) With prior written approval of the EPA, the Contractor
may include in any subcontract under this contract the same
provisions in this clause whereby the Contractor shall indemnify
the subcontractor. Such a subcontract shall provide the same
rights and duties and the same provisions for notice, furnishings
of evidence or proof, and the like, between the Contractor and
the subcontractor as are established by this paragraph. Similar
indemnification may be provided for subcontractors at any time
upon the same terms and conditions. Subcontracts providing for
indemnification within the purview of this paragraph shall
provide for prompt notification to the Contractor which is
covered by this paragraph, and shall entitle the EPA, at its
election, to control, or assist in the settlement or defense of
any such claim or action. The EPA will indemnify the Contractor
with respect to his obligation to subcontractors under such
subcontract provisions. The EPA may discharge its obligations
under this paragraph by making payments directly to
subcontractors or to parties to whom the subcontractors may be
liable.
(6) If insurance coverage required in paragraph A, above,
is reduced without the EPA's approval, the liability of the EPA
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under thi« paragraph will not be increased by reason of such
reduction.
(7) The Contractor shall:
o Promptly notify the Assistant Administrator,
OSWER, EPA of any claim or action against the
Contractor or any subcontractor which reasonably
may be expected to involve indemnification under
this paragraph.
o Furnish evidence or proof of any claim covered by
this paragraph in the manner and form required by
the EPA.
o Immediately furnish the EPA copies of all
pertinent papers received by the Contractor. The
EPA may direct, control, or assist the settlement
or defense of any such claim or action. The
Contractor shall comply with the EPA's directions,
and execute any authorizations required in regard
to such settlement or defense.
o Submit any disagreements concerning EPA
indemnification to the Assistant Administrator,
OSWER, EPA for resolution. Decision by the
Assistant Administrator will constitute final
Agency action.
(8) The Contractor may present a claim for indemnification
under this paragraph only after compliance with the provisions in
paragraphs B, above, and C, below.
(9) If the PRPs fail to indemnify the Contractor in the
amount provided in paragraph B, above, no indemnification for
that amount will be paid under this paragraph until the
Contractor demonstrates to EPA's satisfaction that it has
exhausted all administrative and judicial claims for
indemnification under paragraph B, above, and any common law
claims for indemnification that it has against the PRPs.
Evidence of exhaustion of claims may include a judicial order
dismissing the Contractor's claims, documentation of the
Contractor's unsuccessful efforts to enforce a judgement against
the PRPs, or documentation of the Contractor's unsuccessful
claims in a bankruptcy proceeding involving the PRPs.
(10) Reimbursement for any liabilities under this paragraph
will not exceed appropriations available from CERCLA's Hazardous
Substance Superfund (except to the extent that Congress may make
appropriations- to specifically fund any deficiencies) at the time
such liabilities are represented by final judgement or by ;
settlements approved in writing by the EPA.
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(11) Nothing in this contract shall be construed to create,
either expressly or by implication, any contractual relationship
between EPA and the Contractor except as specifically provided in
this section. EPA is not authorized to represent or act on
behalf of the (PRPs) in any manner relating to this contract and
has no responsibility with regard to the mutual obligations of
the (PRPs) and the Contractor as provided herein.
D. Contractor Deductible
The Contractor shall pay the first $100,000.00 of any
liability subject to indemnification under this contract before
seeking indemnification under paragraphs B and C, above.
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IV
MODEL EPA/ SITES PROGRAM TECHNOLOGY VENDOR
INDEMNIFICATION AGREEMENT
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EPA Indemnification
(1) Pursuant to Section 119 of CERCLA, the EPA will hold
harmless and indemnify the Recipient against any liability
(including the expenses of litigation or settlement) for
negligence arising out of the Recipient's performance under this
cooperative agreement in carrying out response action activities
through the Superfund Innovative Technology Evaluation program
under Section 311(b) of CERCLA. Such indemnification shall apply
only to liability not compensated by insurance or otherwise and
shall apply only to liability which results from a release of any
hazardous substance or pollutant or contaminant if such release
arises out of the response action activities of this cooperative
agreement. Further, any liability within the deductible amounts
of the Recipient's insurance will not be covered under this
clause. If the recipient has secured pollution liability
coverage, it must submit a copy of the policy and the declaration
page to EPA.
(2) Every twelve months, or as directed by the EPA, the
Recipient shall submit to the Contracting Officer written
documentation of the additional efforts made by the recipient to
secure pollution liability insurance coverage, including:
o Copies of applications to three known underwriters
of pollution liability insurance;
o A status report of any pollution liability
insurance obtained, to include type of coverage,
premium charged, limits of coverage, deductibles
and major terms and conditions of coverage (e.g.,
a copy of the actual declaration page could be
provided in lieu of a status report);
o If pollution liability coverage was rejected by
the underwriter, a summary of the reasons why such
coverage was denied; and
(3) For purposes of this clause, the Government will hold
harmless and indemnify the Recipient for liability to the extent
such liability exceeds $100,000.00.
(4) The Recipient shall not be reimbursed for liabilities
as defined herein (including the expenses of litigation -or
settlement) that were caused by the conduct of the Recipient
(including any conduct of its directors, managers, staff,
representatives or employees) which was grossly negligent,
constituted intentional misconduct, or demonstrated a lack of
good faith. Further, the Recipient shall not be indemnified for
liability arising under strict tort liability, or any other basics
of liability other than negligence.
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(S) The Government may discharge its liability under this
cooperative agreement clause by making payments directly to the
Recipient or directly to parties to whom the Recipient may be
liable.
(6) With prior written approval of the Contracting Officer,
the Recipient may include in any subcontract under this
cooperative agreement the same provisions in this clause whereby
the Recipient shall indemnify the subcontractor. Such a
subcontract shall provide the same rights and duties and the same
provisions for notice between the Recipient and the subcontractor
as are established by this clause. Similar indemnification may
be provided for subcontractors at any time upon the same terms
and conditions. Subcontracts providing for indemnification
within the purview of this cooperative agreement clause shall
provide for prompt notification to the Recipient which is covered
by this cooperative agreement clause, and shall entitle the
Government, at its election, to control, or assist in the
settlement or defense of any such claim or action. This
Government will indemnify the Recipient with respect to his
obligation to subcontractors under such subcontract provisions.
The Government may discharge its obligations under this paragraph
by making payments directly to subcontractors or to parties to
whom the subcontractors may be liable.
(7) If insurance coverage required or approved by the
Contracting Officer is reduced without the Contracting Officer's
approval, the liability of the Government under this cooperative
agreement clause will not be increased by reason of such
reduction.
(8) The Recipient shall:
(a) Promptly notify the Assistant Administrator, OSWER, EPA
of any claim or action against the Recipient or any subcontractor
which reasonably may be expected to involve indemnification under
this cooperative agreement clause;
(b) Furnish evidence or proof of any claim covered by this
cooperative agreement clause in the manner and form required by
the Government;
(c) Immediately furnish the Government copies of all
pertinent papers received by the Recipient. The Government may
direct, control, or assist the settlement or defense of any such
claim or action. The Recipient shall comply with the
Government's directions, and execute any authorizations required
in regard to such settlement or defense; and
(d) Submit any disagreements concerning EPA indemnification*
to the Assistant Administrator, OSWER, EPA for resolution.
-------
Decision by tn« Assistant Administrator will constitute final
Agency action.
(9) Reimbursement for any liabilities under this
cooperative agreement clause will not exceed appropriations
available from CERCLA's Hazardous Substance Superfund (except to
the extent that Congress may make appropriations to specifically
fund any deficiencies) at the time such liabilities are
represented by final judgement or by settlements approved in
writing by the Government.
(10) This Clause will be modified by the mutual agreement
of the parties hereto within 180 days of the EPA's promulgation
of final guidelines for carrying out the provisions of Section
119 of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended (CERCLA).
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ATTACHMENT B
CERCLA (AS AMENDED)
SECTION 119
-------
74
high priority to facilities where the releate of haxardout substances
or pollutants or contaminant* hat resulted in the doting of drink-
ing water well* or ha* contaminated a principal drinking water
•apply.
SSC. lit. lUSfOffSS ACTtOff CONTmACTOKL
(at LIABILITY or Raromt ACTION CONTSLACTOKS.—
(I) Rfsrom* ACTION coNTHACTOia.—A person who is a re-
sponse action contractor with respect to any release or threat-
ened release of a haxardout substance or pollutant or contami-
nant from a vessel or facility shall not be liable under this title
or under any other federal law to any person for injuries, costs,
damages, expenses, or other liability (including but not limited
to claims for indemnification or contribution and claims by
third parties for death, personal injury, illness or loss of or
damage to property or economic loss) which results from tuch
releate or threatened release.
(t) NtouatHcm, ere.—Paragraph (If thall not apply in the
case of a release that it caused by conduct of the response action
contractor which is negligent, grossly negligent, or which contti-
tutet intentional misconduct.
(3) EFFKT ON WASKANTI?S; surLon* UAiiurr.—Nothing
in thit tubtection thall affect the liability of any person under
any warranty under Federal, State, or common law. Nothing in
this subsection shall affect the liability of an employer who it a
response action contractor to any employee of tuch employer
under any provition of law, including any provition of any law
relating to worker'* compensation.
(V GovtHNMtNTAL SMPLorMS3.—A state employee or an em-
ployee of a political subdivision who provides services relating
to response action while acting within the scope of his authority
a* a governmental employee shall have the same exemption
from liability (subject to the other provision* of thit tection) at
is provided to the response action contractor under this section.
tb> SAVINGS PROVISIONS.—
(I) LIABILITY or OTHSH nmaom.—The defense provided by
section l07(bJfSt t hall not be available to any potentially respon-
sible party with respect to any costs or damages caused by any
act or omistion of a response action contractor. Except as pro-
vided in tubtection (aX4/ and the preceding sentence, nothing in
this lection thall affect the liability under thit Act or under
any other Federal or State law of any person, other than a re-
sponse action-contractor.
(t) BURDEN or rLAiNTtrr.—Nothing in this section shall
affect the plaintifft burden of establishing liability under this
title.
(c) INDEMNIFICATION —
(I) IN ogNKRAL.—The President may agree to hold harmless
and indemnify any response action contractor meeting the re-
" quirement* of thit tubtection againtt any liability (including
the expente* of litigation or tettUmenl) for negtigence arising •;•
uu< of tHr contractor, performonc* in •*>"-£_'•* gZLEZf^ZZZ,
action acH..ili« under thi» «.«*«•- "«•—-
76
caused by conduct of the contractor which was grossly negligent
or which constituted intentional mitconducL
(I) ArrucAUurr.—Thit subsection shall apply only with re-
spect to a response action carried out under written agreement
with—
(A) the President;
(B) any Federal agency;
(C) a State or political subdivision which has entered
into a contract or cooperative agreement im accordance with
section IQUdXl) of thutitle; or
(D) any potentially responsible party tmrnimg out any
agreement under section fit (relating VlSgments) or sec-
tion 10$ (relating to abatement^ ' •TWT
(3) Soviet or rvttDiHO.—This subsection ekmll not be subject
to section 1901 or 1341 of title SI of the United States Code or
tection 3791 of the Revised Statutes (41 VAC War to section
3 of the Superfund Amendments and Reauthorisation Act of
I fat. For purposes of section 111, amounts expended pursuant
to this subsection for indemnification of any response action
contractor (except with respect to federally ottmea or operated
facilities) shall be considered governmental response costs in-
curred pursuant to section 104. If sufficient funds are unavail-
able in the Hasardous Substance Superfund established under
subchapter A of chapter 98 of the Internal Revenue Code of
1954 to make payments pursuant to such indemnification or tf
the Fund is repealed, there are authorised to be appropriated
such amounts as may be necessary to make such payments.
(4> RtTQtftmMHtvm—An indemnification agreement may be
provided under this subsection only if the President determines
that each ofthe following requirements are met:
(A) The liability covered by the indemnification agree-
ment exceeds or is not coverea by insurance available, at a
fair and reasonable price, to the contruttar at the time the
contractor enters into the contract to provide response
action, and adequate insurance to cover such liability u not
generally available at the time the response action contract
Is entered into.
(B) The response action contractor has made diligent ef-
forts to obtain insurance coverage from non-Federal sources
to cover such liability.
(C) In the case of a response action contract covering more
than one facility, the response action contractor agrees to
continue to mow such diligent efforts each time the con-
tractor begins work under the contract at a new facility.
(5) LlUtTATtOftS.—
(A) LlAmiurr covrnfmo.—Indemnification under this sub-
section shall apply only to response action contractor liabil-
ity which results from a release of any hasardout substance
or pollutant or contaminant if tuch releate arises out of re-
tponte action octivitiem.
.
(Bt DmovcnmtMa AND tjterra.—An
-*«• •"t~0'
-------
76
(O OotmtAcn mm fonwnuxr *ttronstmiM FA»-
(i) DeKumt TO iND*stmrr.—In deciding whether to
enter into an indemnification agreement with a re-
tponte action contractor carrying out a written contract
or agreement with any potentially retpontible party,
the Pretident thall determine an amount which the po-
tentially retpontible party it able to indemnify the con-
tractor. The Pretident may enter into tuch an indemni-
fication agreement only if the Pretident determinet
that tuch amount of indemnification it inadequate to
cover any reasonable potential liability of the contrac-
tor anting out of the contractor! negligence in per-
forming the contract or agreement with tuch party. The
Pretident thall make the determinationt in the preced-
ing tentencet (with retpect to the amount and the ade-
quacy of the amount) taking into account the total net
attett and retourcet of potentially retpontible partiet
with retpect to the facility at the time of tuch determi-
nationt.
(ii) CbnomoN».—The Pretident may pay a claim
under an indemnification agreement referred to in
clause (i) for the amount determined under claute (i)
only if the contractor hat exhautted all adminittrative,
judicial, and common law claimt for indemnification
againtt all potentially retpontible partiet participating
in the clean-up of the facility with ntptct to the liabil-
ity of the contractor anting out of the contractor! neg-
ligence in performing the contract or agreement with
tuch pony. Such indemnification agreement thall re-
quire tuch contractor to pay any deductible ettablithed '
under tubparagraph (B) before the contractor may re-
cover any amount from the potentially ntpontible
nirfy or under the indemnification agreement
(D) RCRA MCfumt—No owner or operator of a facility
regulated under the Solid Watte Disposal Act may be in-
demnified under thit tubtection with retpect to tucn facili-
ty-
(E) Ptmsom mtTAiNUt o* mimu*.—A perton retained or
hired by a perton detcribed in tubtectton (eXtXB) thall be
eligible for indemnification under thit tubtection only if
the Pretident tpecificolly approvtt of the retaining or
hiring of tuch perton.
(S) COOT ucovtmr.—Fbr purpottt of tection 107, amounte ex-
pended purtuant to thit tubtection for indemnification of any
perton who it a retponte action contractor with retpect to any
release or threatened nleatt thall be contidend a cott of re-
sponse incurred by the United Stattt Government with retpect
to tuch nleatt.
(?) RsouLATtONt.—The Pretident thall promulgate regula-
tion! for carrying out the provitiont of thit tubtection. Before
promulgation of the regulation!, the Pretident thai! develop
guideline! to earn out thii section. Development of tuch guide-
line! thall include reasonable opportunity for public common'
77
(8) Srvor—The Comptroller General thall conduct a ttudy in
the fitcal year ending September tH 1999. on the application of
thit tubtection, including whether indemnification agreement!
under thit tubtection are being uted, the number of claimt that
have been filed under tuch agimmentt, and the need for thit
ftufewfiM 1%» n»»«-.tl— n »-«._••- - - - -
the out,.. „_ .___
lion (c) thafl^ot apj^MyZnoirZv^^Ths
Paragraph mm 0TJ- (4) ofSSS !$!3i!th retp*
-„ -r-- ,-„ I-*, iw» f «*s «j MI.IIMI Mv/tur wiui n
lease or threatened nleatt tonnrnsd if tuch perton
end by tuch provitiont even if tuch person had not rarneM mtt emy
actions referred to in tubtection (e) of thit section.
(e) Dgrmmonm.—Fbr purpottt of thit tection—
(I) RftroNtM ACTIOH cotmtAcr.—The term "retpontt action
contract" means any written contract or agreement entertd into
by a retponte action contractor (at defined in paragraph (tXA)
of thit tubtection) with-
(A> the Pretident;
(B) any Federal agency;
(C) a Stale or political tubdivition which hat entered
into a contract or cooperative agreement in accordance with
f this Act; or
tection lOKdMDoft
(D) any potentia
agreement under
responsible party carrying out an
Hl&iorltti
..^ «,««» rwfffct co any nutate or tnnatened nleatt of a has-
ardout tubttance or pollutant or contaminant from the facility
or to provide any evaluation, planning, engineering, surveying
and mapping, design, conttruction, equipment, or any ancillary
terv£»ftentofo?tuch facility. ^^
(I) RttfOMf ACTION cotrrmACto*.—The term "ntponte
action contractor" means—
(AJany-
(i) person who enter* into a ntponte action contract
with ntptct to any nleatt or threatened nleate of a
haiardout tubttance or pollutant or contaminant from
a facility and it carrying out tuch contract; and
• (ii) perton, public or nonprofit private entity, con-
ducting e? field demonstration purtuant to tection
311(1* and
(B) any penon who it ntuintd or hind by a penon de-
tcribed in tubparagraph (A), to provide any services relating
iO 0 fWpORM OCfHM»
(3) Intv*AMCm.—Tne term "insurance" meant liability incur-
once which it fair and reasonably priced, at determined by the
President, and which it made available at the time the contrac-
tor entert into the ntponte action contract to provide retponte
action.
(f) Confmrmoft.—Response action contractor!
for program management
-------
of eelected in accordance with Ml* IX of the federal Property and
Adminittrative Service* Act of 1949. The Federal telectionproee-
dtum thall apply to appropriate contract* negotiated by all Federal
governmental agenda* involved in carrying out thit Act. Such prone-
dtum thall be followed by reeponee action contractor* and tubcon-
(a) ArrucATHMt or ACT TO F*DMMAL QovmmmuHT.—
(1) In OBMUMI.—EbcA department, agency, and inttrumental-
ity of the United State* (including the executi
and judicial branche* of government) thall be tubject to, at
comply with, thie Act in the MUM Manner ami to the tame
extent, both proceduralty and tubttumtivtly, a* any nongovern-
mental entity, including liability under eection 107 of thit Act
Nothing in thi* eection ehall be conttrued to affect the liability
of any pereon or entity under eectiont 10$ and 107.
(9) ArrucATtoH or mtnvintntm TO muuuL rAciunss.—
All guideline*, .rule*, regulation*, and criteria which are appli-
cable to preliminary attenmenti carried out under thi* Act for
facilitie* at which hatardout tubttanee* an located, applicable
to evaluation* oftuch facilitie* under the National Contingency
Plan, applicable to inclution on the National Prioritie* Litt, or
applicable to remedial action* at tuch facilitiet thall alto be
applicable to facilitie* which are owned or operated by a de-
partment, agency, or inttrumentality of the United State* in the
tame manner and to the extent at tuch guideline*, rule*, regu-
lation*, and criteria are applicable to other facilitie*. No de-
partment, agency, or inttrumentality of the United Statet may
adopt or utuue any tuch guideline*, rule*, regulation*, or crite-
ria which are incontittent with the guideline*, rule*, regula-
tion*, and criteria ettablithed by the Adminittrator under thit
Act
(S) ExcfrnoNB.—Thit tubeection thall not apply to the extent
otherwite provided in thi* eection with retpect to applicable
time period*. Thi* tubtection thall alto not apply to any re-
quirementt relating to bonding, inturance, or financial retpon-
tibility. Nothing in thit Act thall be conttrued to require a
State to comply with tection 104(c)(S) in the cote of a facility
which i* owned or operated by any department, agency, or in-
ttrumentality of the United State*.
(4) STAT* LAWS.—State law* concerning removal and remedi-
al action, including State law* regarding enforcement, thall
apply to removal ana-remedial action at facilitiet owned or op-
erated by a department agency, or inttrumentality of the
United State* when tuch facilitiet are not included on the Na-
tional Prioritie* Litt. The preceding tentence thall not apply to
the extent a State law would apply any ttandard or require-
ment to tuch facilitiet which it more ttringent than the ttand-
ard*. and requirement* applicable to facilitiet which are not
owned or operated by any tuch department, agency, or inttru-
mentality.
out watte facilitie* required to bt tubmitted under tection SOlf of
the Solid Watte Ditpotal Act (in addition to the information re-
quired under tection 901$(aM9) oftuch Act) information on contami-
nation from each facility owned or operated by the department
agency, or inttrumentality if tuch contamination affect* contiguout
or adjacent property owned by the department, agency, or inttrumen-
tality or by any other pereon, including a dtttription of the monitor-
ing data obtained.
(c) F*D**AL Aoutcr HAtAMDOtm WAITS OottruAMcm Doaur.—
The Adminittrator thall ettabluH a tpecial federal Agency Hatard
out Watte Compliance Docket (hereinafter in thi* tectton reftjrnd to
at the "docket^ which thall contain each of the following:
(I) All information tubmitted under eection 901$ of i
Watt* Dupotal Act and tubtection (b) of thi* tection ngjjtmnf
any Federal facility and notice of each tubtequent action to, In
under thit Act with retpect to the facility.
(9) Information tubmitted by each department, agency, or in-
ttrumentality of the United State* under tection J005 or 9910 of
tuch Act
(S) Information tubmitted by the department agency, or in-
ttrumentality under tection 109 of thi* Act
The docket thall be available for public intpection at reaeonable
time*. Six month* after eetabluhment of the docket and every $
month* thereafter, the Adminittrator thall publith in the Federal
Regitter a litt of the Federal facilitie* which have been included in
the docket during the immediately preceding t-month period. Such
publication thall alto indicate where in the appropriate regional
office of the Environmental Protection Agency additional informa-
tion may be obtained with retpect to any facility on the docket The
Adminittrator thall ettablith a program to provide information to
the public with reepect to facilitie* which are included in the docket
under thi* 'tubeection.
(d) AuuatttHT AMD SvAiVATfOM.—Not later than 19 month*
after the enactment of the Superfund Amendment* and Keauthor-
uation Act of 199$, the Adminittrator thall lake ttept to atture
that a preliminary attettment i* conducted for each facility on the
docket following tuch preliminary atteeement the Adminittrator
thall, when appropriate
(1) evaluate euch facilitiet in accordance with the criteria et-
tablithed in accordance with eection 105 under the National
Contingency Plan for determining prioritie* among releatee;
and
(9) include tuch facilitiet on the National Prioritie* Litt
maintained under tuch plan if the facility meete tuch criteria.
Such criteria thall be applied in the tame manner at the criteria
are applied to facilitie* which are owned or operated by other per-
ton*. Evaluation and lifting under thie tubtection thall be complet-
ed not later than SO month* after euch date of enactment. Upon the
receipt of a petition from the Governor of any State, the Adminutra-
tor thatt make tuch an evaluation of any facility included in the
dofket
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Significant New Legislation-Federal
Employees Liability Reform and Tort
Compensation Act of 1988
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENC
WASHINGTON O C 20J60
-EC 30 £:?
,««.€ "•»,_ . J-JNSCC
MEMORANDUM
SUBJECT: .Significant New Legislation - Federal Employees
Liability Reform and Tort Compensation Act of 1988
FROM: Craig Annear ' /".' /< .'• ' •''*-'-
Associate General Counsel
Grants, Contracts and General Law Division
TO: General Counsel
Deputy General Counsels
Regional Counsels
Associate General Counsels
Assistant General Counsels
On November 18, 1988. the President signed into law the
"Federal Employees Liability Reform and Tort Compensation Act of
1988." P.L. 100-694 (copy attached). The purpose cf this Act is
to protect Federal employees from personal liability for common
law torts committed within the scope of their employment while
providing persons injured by such acts with a remedy against the
United States.
This Act was in response to the United States Supreme
Court's decision in Westfall v. _Erwin. 108 S. Ct. 580. 98 L. Ed
2d 619. 56 U.S.L.W. 4081 (1988). "in Westfall the Court held
that Federal employees have absolute immunity from state-law -ort
suits only to the extent that their actions were within the scope
of employment and were discretionary. The Act changes the
Westfall standards by requiring that a Federal employee only has
to show that he/she was acting within the scope of employment re
be absolutely immune from the tsrt suit.
The Act provides that suit against the United States under
the Federal Tort Claims Act. 28 U.S.C. 2671 et seq.. is the
exclusive remedy for a person injured by the tortious conduct cf
^ Federal employee who is acting within the scope of his/her
emoloyment. The Act applies only ro common law or state-law tcrt
sujrs. It does not cover an alieoeci violation of the
Constitution of the United States or a violation of a statute of
-------
the United States under which an action against tha individual
is otherwise authorized.
The Act authorizes the Attorney General to determine and
certify that the employee was noting within the scope of
employment, where such certification is made, an action in
Federal court is deemed an action against the United States with
th* United States substituted for the named employee. Where the
action is in State court, following certification the Attorney
Gi»n*ral is. authorized to remove the suit to Federal court and to
substitute the United Stater for the employee. Additionally, the
employee i's given the right tc have the issue of scope of
employment determined by the court where the Attorney General
refuses to certify. The Act is effective for all claims, civil
actions, am" proceedings pending on. or filed on or alcer
N :v.-n>ber 18. 1308.
If you have questions or require additional information, Ray
Spears, of my staff, is available to assist you. Ray can be
reached at FTS 382-4548.
Attachment
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Final Rule, Hazardous Waste
Operations and Emergency Response
(29CFR1910)
-------
Monday
March 6, 1989
Part III
Department of Labor
Occupational Safety and Health - -
Administration
29 CFR Part 1910
Hazardous Waste Operations and
Emergency Response; Final Rule
-------
9294
Federal Register / Vol 54. No. 42 / Monday. March 6. 1989 / Rule, and Regulation,
DEPARTMENT OP LABOR
Occupational Safety and HMMh
Admtntetranon
29 CFR Put 1f 10
[Docket No. 8-760A)
Hazardous Weate Operatione and
Emergency Response
AOINCV: Occupation*! Safety and
Health Administration: Labor.
ACTKW: Final rule. _
lUMSMer The Occupational Safety and
Health Administration (OSHA) is
amending the OSHA standard for
hazardous waste operations and _
emergency response found in 29 CFR
1910.120. This final rule will replace the
existing interim final rule required by
Congress in the Supcrfund Amendments
and Reauthohzation Act of 1988 (as
amended) (SARA) (Pub. L. 99-188. 29
U.S.C. 655 note). When this final rule
becomes effective one year from today,
the interim final rule promulgated
December 19. 1988 (51 FR 45054) will be
revoked. The interim final rule remains
in effect until then. The Notice of
Proposed Rolemaking for this final rule
was published in tin Federal Register on
August m 1987 (52 FR 29820).
This rale; will regulate the safety and
health of employees involved in clean-
up. opexeOons at uncsntoplled nezsxdous
up cadet
harsrdous waste treatment storage, and
disposal (TSD) operations conducted
under the Resource. Conservation and
Recovery Act of 1978 as amended
(RCRA) {4aOS£.aB01e< sec Land in
any emergency nteponse to incidents
uivotving hazardous substances.
This standard provides for employee
protection during initial site
characterization and analysis.
monitoring activities, materials handling
activities, training, and emergency
response.
OATO: This final rale will become
effective March 8.1990.
Paperwork authorization has been
granted by the Office of Management
and Bodeet (OMB) under cootroi number
In compliance with 28 U.S.C.
ZTLZU). the Agency designates far
iei£3|X of petitions far leiiew of tfae
standard, m* Associate Solicitor for
Oczanwbjoaai Safety and Health. Office
of me Sofcctar. Room S-40D4. Ui
Labor. Occupational Safety and Health
Administration. Division of fVintnmfr
Affairs, Room N-3847,200 Constitution
Avenue NW- Washington, DC 20210.
202-523-4131.
ejimiMBMTMV INMNMATMM:
L Background
The U.S. Environmental Protection
Agency estimates that approximately 57
million metric tons of hazardous waste
are produced each year in the United
States.1 These wastes must be treated
and stored or disposed In a manner that
protects the environment from the
advene affects of the various
constituents of those wastes.
In response to the need to protect the
environment from the improper disposal
of these hazardous wastes. Congress.
over the years, has enacted several
pieces of legislation intended to control
the nation's hazardous waste problem.
Federal laws passed in 1986 • and 1970 •
initially addressed solid waste disposal.
Several other pieces of legislation nave
been enacted by Congress that have
ultimately led to the development of tins-
rule and they are discussed below.
A. Tht Resource Conservation and
Recovw Act of 1370 ,
The first comprehensive, federal effort
to deal with the solid wast* problem in
general, and hazardous waste
specifically, came with the passage of
tfae Reemeee Cousui ustlun and .
Recovery Act of 1878 (RCRA)«. The eot>
provides for the development of federal
unregulated land ttis|Ktssl of waste
materials end ferthe development of
leeouice recovery programs. It regulates
anyone engaged in tfae creation.
transportation, treatment, and disposal
of "hazardous wastes." It also regulates
facilities far tfae disposal of all solid
wastes and prohibits the use of open
dumps for solid wastes in favor of
requiring sanitary i««^RH«-
There are, however, many hazardous
waste disposal sites that were created
prior to the passage of RCRA. These
sites are often abandoned and contain
imkimmii quantities of milmoam wastes.
B. The CamareAeasnw EariroameatoJ
Response. Compensation and Liability
Act of 1980
In response to the need to clean-op
and ptupeily reclaim these pre-RCRA
•UAEa
Mr. Jaaes F. Feeler, U-S Department of
SoW WMM OspCMi Act Pab. L No. SS-TO. 79
sites. Congress enacted the
Comprehensive Environment
Response. Compensation, and LUkn.
Act of 1980 (CERCLA) • comnoohT^
known as "Superfund." Superfund
established two related funds to b« tun
for the immediate removal of hazuT:
substances released Into the ^^^"
environment Superfund is intended to
establish a mechanism of responitfor
the immediate clean-up of hazardoui
waste contamination from acddtntil
spills and from chronic environmental
damage such as is associated with
abandoned hazardous waste dispoul
sites.
The treatment and disposal of
hazardous wastes under RCRA and
CERCLA creates a significant risk to th
safety and health of employees who
work in treatment and disposal
operations. Exposure to hazardous
wastes through skin contact skin
absorption, and inhalation pose the
most significant risks to employees.
Employee exposure to these risks oonw
when employees respond to hsisrdoM
substance or waste emergencies, who
they work with hazardous wastes data).
storage, treatment and disposal «
operations or when they partidpata faff
-the clean-up of abandoned-waste stiaWI
This risk of exposure and me Besdnt
protecting employees exposed to
hazardous wastes is addressed hi the
"Superfund Amendments •"**
Reeuthwization Act of 1988* (SARA).
C Superfund AnMndnttnts and.
Reauthoruation Act o/lAM
On October 17.1988. the President
signed into law the "Superfund
Amendments and Reauthorization Ad
of 1988-(SARA).* As part of SARA, to
section 128 of Title L Congress
addressed the risk of injury to
employees by providing that the
Secretary of Labor ("Secretary") Issue
interim final worker protection
regulations within 80 days after the daU
of enactment of SARA that would
provide no less protection for worken
engaged in hazardous waste operattoni
than the protections contained in the
US. Environmental Protection Agency1!
(EPA) "Health and Safety Requirementi
for Employees Engaged in Field
Activities" manual (EPA Order 144O2)
dated 1981. and the existing OSHA
standards under Subpart C of 29 CFR
Part 1928. OSHA published those
interim final regulations in the Federal
Register on December 19,1988 (51 FR
45854). A correction notice was1
published on May 4.1987 (52 FR 162411
• Pub. L
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Federal Register / Vol. 54. No. 42 / Monday. March 6. 1989 / Rules and Regulations
9295
With the exception of a few provisions
that had delayed start-up dates. OSHA's
interim final regulations became
effective on December 19.1986 in
accordance with section 126(e) of
SARA, and apply to all regulated
workplaces until the final rule
developed under sections 126 (a)-(d)
becomes effective.
Section 126(a) of SARA provides that
the Secretary shall" * * * pursuant to
section 6 of the Occupational Safety and
Health Act of 1970. promulgate
standards for the health and safety of
employees engaged in hazardous waste
operations." These standards must be
promulgated within one year after the
date of enactment of SARA. This notice
completes the development of those
standards by issuing a final rule based
upon the proposed regulations as
Indicated in sections 126(a) and 126(b)
of SARA.
Pursuant to section 128(c) of SARA.
the final regulations issued today are to
take effect in one year. Section 126(c)
also provides that the final regulations
are to include each of the worker
protection provisions listed in section
126{b). unless the Secretary determines
that the evidence in the public record
developed during this rulemaking and
considered as a whole does not support
inclusion of any such provision. A
discussion of the public record for this
rulemaking and the changes made to the
proposed regulations issued August 10.
1987 follows.
This final rule has been adapted from
the language of the proposed rule.
Changes have been made to address
more fully the provisions which
Congress directed the Agency to cover
and the comments made in the public
record. OSHA utilized several sources
for the proposal These included the
EPA manual entitled "Health and Safety
Requirements for Employees Engaged in
Field Activities" (1981). the language of
OSHA's safety and health standards in
Subpart C of 29 CFR Part 1928 and
various documents issued either jointly
or separately by the EPA. OSHA. the
U.S. Coast Guard, and the National
Institute for Occupational Safety and
Health (NIOSH).
OSHA specifically used the joint
OSHA/EPA/USCG/NIOSH manual
entitled. "Occupational Safety and
Health Guidance Manual for Hazardous
Waste Site Activities" (Preamble
Reference 6). as an outline in preparing
the interim rule and the proposed rule.
This manual was developed as a result
of the collaborative efforts of
professionals representing the four
agencies. These professionals, who are
knowledgeable in hazardous waste
operations, worked with over 100
experts and organizations in the
development of the criteria contained in
this manual. The manual was published
in October 1985 and is public
information. The manual is a guidance
document for managers responsible for
occupational safety and health programs
at inactive hazardous waste sites. The
manual is intended for use by
government officials at all levels and
contractors involved in hazardous waste
operations. The manual provides
general guidance and is intended to be
used as a preliminary basis for
developing a specific health and safety
program for hazardous waste
operations. Further, the major subject
areas listed in section 126(b) of SARA
are nearly identical to the major
chapters in the manual.
Based upon the extensive public
comments and hearing testimony,
OSHA has modified the proposal The
final rule takes into account the entire
record. In addition, the language of this
final rule clarifies some areas of
confusion in the interim rule that OSHA
has identified during the public
comment period and since the
promulgation of the interim final rule.
The final rule also reorganizes some of
the sections to clarify the standard.
D. Regulatory History
The Superfund Amendments and
Reauthorization Act of 1986 (SARA)
gave the Secretary of Labor 60 days to
issue interim final regulations which
would provide no less protection for.
workers employed by contractors and
emergency response workers: than the
protections contained in the
Environmental Protection Agency
Manual (1981) "Health and Safety
Requirements for Employees Engaged in
Field Activities" and existing standards
under the Occupational Safety and -
Health Act of 1970 found in Subpart C of
Part 1926 of the Code of Federal
Regulations. Those interim final
regulations were to take effect upon
issuance and would apply until final
regulations became effective (SARA.
S 126(e)). OSHA issued its interim final
regulations on December 19,1988 (51FR
45654).
SARA also instructed the Secretary of
Labor to promulgate, within one year
after the date of the enactment of
section 126 of SARA and pursuant to .
section 6 of the Occupational Safety and
Health Act of 1970, standards for the
health and safety protection of
employees engaged in hazardous waste
operations (SARA, section 126(a)). On
August 10.1987 OSHA issued a Notice
of Proposed Rulemaking and Public
Hearings (52 FR 29620). That Notice set
forth OSHA's proposed language for its
final rule and announced public
hearings that would be held to gather
further information to aid the agency in
developing its permanent final rule.
Informal public hearings on the
subject of this rulemaking were
scheduled and held to afford interested
parties the opportunity to comment on
OSHA's proposals. The hearings were
held October 13-16 and 20-21.1987 in
Washington, DC and October 27-28,
1987 in Seattle. Washington. The
hearings originally scheduled for San
Francisco. CA in the August 10.1987
Notice of Proposed Rulemaking were
rescheduled for Seattle. WA in an
October 13.1987 announcement (52 FR
37973).
Testimony from over 40 witnesses
was presented at the hearings. Further,
over 30 post hearing comments were
submitted to the record of this
rulemaking. In addition to the public
hearings and the testimony received in
response to those hearings, OSHA
received over 125 written comments on
its proposed language for a final rule.
II. Summary and ^^plaiiation of the
Standard
Paragraph (a)—Scape. Application, and
Definitions
1. Scope. OSHA proposed to define
the scope of this final rule in paragraphs
(a)(l) and (a)(2). "Scope" defines the
specific worker populations to be
covered by this rule.
The scope of this rulemaking has been
an issue during the .development and _.
promulgation.of the final rule. OSHA
requested specific comment on whether
the proposed rule was appropriate.
Eastman Kodak's comment (10-36)
states. The preamble of the proposed
standard at page 29622 requested
'specific comment on whether [OSHA's]
interpretation of scope is too broad or
too narrow.' The scope of applicability
of the standard, especially with regard
to ongoing operations at hazardous
waste management facilities regulated
under RCRA and/or corresponding state
programs, appears to be appropriate."
While the language of the final rule is
somewhat different from the language of
the proposed rule, the four major areas
of scope remain essentially, the same.
These four areas of scope include (1)
clean-up operations at uncontrolled
hazardous waste disposal sites that
have been identified for clean-up by a
governmental health or environmental
agency. (2) routine operations at
hazardous waste treatment, storage and -
disposal facilities or those portions of
any facility regulated by 40 CFR Parts
264 and 265, (3) emergency response
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9296 Federal Register / .VoL 54. No. 42 / Monday. March 6. 1989 / Rules and Regulations
operations at sii.es where hazardous
substances have been or may be
released, and (4) corrective actions at
RCRA sites. In addition OSHA has
clarified that the agency intends to
cover voluntary clean-ups at
government identified sites.
OSHA's proposal addressed the three
specific populations of workers at the
above operations. First, it was proposed
to regulate those operations where
employees are engaged in the clean-up
of uncontrolled hazardous waste sites.
These operations include those
hazardous substance response
operations under the Comprehensive
Environmental Response,
Compensation, and Liability Act of 1980
as amended (CERCLA). including initial
investigations at CERCLA sites before
the presence or absence of hazardous
substances has been ascertained, those
major corrective actions taken in clean-
up operations under the Resource
Conservation and Recovery Act of 1976
as amended (RCRA). and those
hazardous waste operations at sites that
have been designated for clean-up by
state or local governmental authorities.
The second worker population
proposed to be covered included those
employees engaged in operations
involving hazardous waste treatment
storage, and disposal (TSD) facilities
regulated under 40 CFR Parts 264 and
265 pursuant to RCRA, except for small
quantity generators and those employers
with less than 90 days accumulation of
hazardous wastes as defined in 40 CFR
262.34.
The third and final worker population
proposed to be covered were those
employees engaged hi emergency
response operations for releases or
substantial threats of releases of
hazardous substances, and post-
emergency response operations to such
releases at all workplaces.
In paragraph (a](l)(i) of the final rule
OSHA is regulating all government
mandated clean-up operations at
uncontrolled hazardous waste disposal
sites. These operations were included hi
paragraphs (a)(l)(i) and (a)(l)(iii) of the
proposal. For the purposes of this final
rule. "Superfund" and other
uncontrolled hazardous waste disposal
sites include hazardous substance
response operations at sites regulated
under 40 CFR Part 300. Subpart F: RCRA
closure activities conducted under 40
CFR Part 285. Subpart G: and those
similar uncontrolled hazardous waste
disposal sites that have been designated
for clean-up by Federal state or local
government*.
OSHA intends and the change in
language clarifies that all government
mandated clean-ups are covered. These
include not only sites on the various -
"Superfund" lists, but also all other
government mandated clean-ups as
well. The changed language makes dear
that such clean-ups are covered whether
or not they are financed by the
government The language further
clarifies that clean-ups mandated by
any level of government are covered.
In paragraph (a)(l)(ii) of the final rule.
OSHA is regulating corrective actions at
RCRA faculties. This paragraph adopts
the language proposed in paragraph
(a)(l)(ii) of the proposal with one
change. The term 'major' has been
deleted as a modifier of "corrective
action." Several commenters requested
clarification of the term "major
corrective action." International
Technologies, a major hazardous waste
clean-up contractor, requested in their
comment (10-44), "Please clarify 'major
corrective actions conducted under
RCRA.' What distinguishes 'major'
corrective actions from other corrective
actions?" The State of Indiana
commented (10-23), "There is no
definition of what constitutes a *major
corrective action' under RCRA." In
addition, the term "major" is not used in
EPA terminology. „
"Corrective action" is a term unique
to RCRA and has been defined for use
with RCRA. OSHA's addition of the
modifier "majocT1 raised many
definitional questions. Therefore OSHA.
in the final rale, is deleting the word
"major" to be consistent with EPA
terminology and eliminate confusion.
Rather than define "major corrective
action." OSHA is amending the
language of the proposal to indude a
phrase describing the level of corrective
action that is to be regulated in the
scope of this rale. OSHA will be
regulating those corrective actions that
potentially expose employees to a
"safety or health hazard." OSHA is not
concerned with those corrective actions
that are intended to abate
environmental risks without exposing
employees to safety or health hazards.
The phrase "safety or health hazard" in
the introductory language is the phrase
that OSHA has used to differentiate the
type of releases that this standard
regulates versus those release that may
pose only environmental threats rather
than safety or health threats to
employees.
OSHA has decided to add a new
paragraph (aKl)(iii) to the final rule that
would include within the scope of this
rule those voluntary clean-up operations
conducted at sites recognized by
governmental bodies as uncontrolled
hazardous waste disposal sites. AH
other voluntary clean-ups would be
exempt from 29 CFR 1910.120. OSHA
does not have the statutory
responsibility to identify hazardoH
waste sites. It will leave to agencies
with that authority the responsibility..
identify those sites. Those voluntary
sites that are not recognized by the
government as uncontrolled hazardous
waste disposal sites would be exempt
from 29 CFR 1910.120: however, they
would still be regulated by the other
OSHA general industry or construction
industry standards applicable to the
work being performed at the site.
OSHA did not propose to cover
voluntary clean-ups of hazardous
substances in its proposed rule. Many
comments suggested this, however, the
Agency has conduded that individual]
involved in voluntary clean-ups may be
exposed to the same safety and health
risks at voluntary sites identified by the
government whether or not the
government is compelling action.
However, it would be difficult to k. w
whether or not sites not identified uy the
government are hazardous waste lites
without a structured evaluation system
for such potential sites.
OSHA raisea an issue on the scope in
the preamble to the proposal that
generated several comments. On page
29622 of the preamble to the proposal
OSHA listed several TSD facilities th£
would not be covered by the final ran
The exemptions were taken from a lisT-
published by the UJS. EPA that are not
directly regulated by U.S. EPA.
However, the proposed standard's
language did not grant these
exemptions. Comments did not support
the exemptions and OSHA did not
believe that they were appropriate.
The particular exemption that
generated the most comment exempted
those TSD faculties which operate under
a state hazardous waste program
.pursuant to RCRA section 3006. These
state hazardous waste programs are
recognized by U.S. EPA in a similar
fashion to the OSHA state plan states
under section 18 of the OSH Act A
number of commenters. such as the
State of Indiana (10-23). objected to this
type of exemption by OSHA as not
being appropriate. They stated OSHA
jurisdiction should not be impacted by
VS. EPA state agreements, but only
those state agreements provided hi the
OSH Act OSHA agrees with these
commenters and therefore OSHA
jurisdiction will be delegated to only
those states which OSHA has formal
agreements with under the OSH Act
However, it should be noted that the
U.S. EPA jurisdictions under SARA
section 128 may make use of their state
agreements.
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f Voi. M. No. 42 / Monday. March 6. 1988 / Rules and Regulation*
9297
Other commenters, EXXON (1O-33)
sad CONOCO tin 17). SHugaslal that
OSHA incorporate the axesapHons oa
page 29622 save- separate paragraph 1n
the final rule.
Typical TSD faculties range from the
hazardous waste generator with a
hazardous waste storage area to the
large. complex hazardous waste
disposal facility. EPA estimates that
approximately 80-percent of ail
generators also treat store, or dispose of
their hazardous wastes and thereby
qualify as a TSD faculty. Over 30400
TSD facilities notified EPA to 1980 that
they would qualify for regulation under
section 3004 of RCRA.
OSHA continues to regulate RCRA
TSD facilities to paragraph (a)(l)(iv) of
the final rule as it was proposed to the
regulatory language of the proposal. The
list of exemptions on page 29622 will not
be incorporated into the final rale.
OSHA believes that such a list would
create too great a gap to the protection
of workers. For example, with respect to
workers at TSD facilities operating
under a state hazardous waate program
pursuant to RCRA section 3008. OSHA
agrees with at m»itm by tfr^
State of Indiana (10-23) that it is
possible that the workers to those 42
authorized states identified by Indiana
could be without the protections
In paragraph (aMlX*) OSHA would
continue to regulate emergency response
operations for releases at or substantial
threats of releases) of* hazardous
substances wttfaont-regard to the
location of the operation as proposed to
paragraph (aKZ) of ma proposal Such
emergency response operations an not
limited to those responses at
uncontrolled hazardous waate disposal
iiteaor RCRA TSD facttttiee. With
respect to transportation incidents.
respondera to the scene an coveted but
operators (La. track drivers and train
crews) an not coveted unless they
become actively involved to the
response action.
OSHA to maJdng major revisions to
proposed paragraph (1). Thane/revisions
ibeea-i ' '
comments roaoamtng OSHA'e
involvement ta i * " " —^—"
response at every site Involving-
hazardous substance release or
Potential release. Some of the coi_
were to favor of OSHA's continued
involvement with emergency response
(Le, American Chffldc*1 Society. 10-44)
and others wen opposed to continued
involvement (La, ECOLAB. 10-64).
Others supported OSHA involvement to
^urgency response activities at
uncontrolled hazardous waste sites and
certain RCRA facilities but opposed the
agency's involvement with non-waste
dean-op or non-RCRA facilities (i.e_
The Chlorine Institute. 10-24). Yet others
called for two separate areas in the rule
one for hazardous waste operations, and
one for emergency response (Le.. Allied
Signal 10-38). Others opposed coverage
of emergency response to petroleum
spills (CONOCO. Ex. 10-32).
OSHA after reviewing all the
comments, continues to believe that it is
the clear intent of Congress that any
employees participating in an
emergency response to the release or
potential for release of hazardous
substance be covered by this
rulemalting. This Congressional intent
applies to all such emergency responses
including those both off and on
hazardous waste sites.
The statutory language indicates that
all emergency responses where the
threat of hazardous substance spills
exist are to be covered.
Section 12B(b)(ll) of SARA
specifically provides that "requirements
for emergency response" are to be
included *rul is not limited to hazardous
waste sites.
m addition, section 126(d)(4) steles:
Training of Emergency Response
PenoonaL-Sach training standards •hsflMt
Cortb rd^viTCBsSBtB fortbsi trumm of wotxsM
woo m f^MpooMDM nyfMpoodip^ to
haxafdoat mtrguicr titaatxta* who nay be
•XDOOsM IO tOXlC CUOtlJDCM ID CeVfyiflg Ow
than- mpoasibdinea. (eanphasfe added)
This is very broad language that is not
limited to hazardous waste operations
or hazardous wastes or substances on
CERCLA or RCRA sites. It covers afl
"hazardooa emergency situations" for
all "Undo substances- which would
clearly coverall types of emergency
response for chemical spills <*yi"«
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Voi 84. No. 42 I Monday. March 6. 198» / Rates and Regulations
operations of tha iakaadai ruU. Third.
OSHA is reajniating, anaacgaocy raapeoaa>
(O h-^mr^nna —K-*--^. nda*saa by
amnioy/ee* not omnnd by Bamg*apks (I)
PS****"!*
itkereavire
(q) contain* I
it* pi
in paragraphs (Tjfl). (Tjfjj. fl)(4V and
(IKS) of tha proposal and iatonm ml*.
Thaaa rniailallnns were directed toward
smargmcy respoiiM caama, induioial
fin brigades, and hazardous •»
IB its proposal OSHA covered
rmergaacy raapoiisa la ralaaae* of
hazardous ias
(Tt pea. 24-2^. J^r. i
oo to ftmia, TS* raai sflieogta of 2&
CTR tglflta is thai U aot only
GS promctiog wcckan
for *~w*v**t w^a face axtreaaiy
rsk 10 itfs cad bathh that's st
irr'ii*rr'). 1 lies to nipputt
what's goina; to ampswn. I hava laam«d
over tnaae ntany year* thai tha two
greatest ileitjats thai face ua aa
amaqgaacy raapoadan are tgnoranne or
noa-awaranaaa of what we're facing and
tha lack of plan or any procedure, that
will tak*> ua to tha and that w»'re trying
to accompUsB." (Tr. pga. 8B-00).
Margaret Sanioario, Aaaodata
Director. Daparamant of Occupational
Safety. Haalth and Social Security of tha>
American Fadatatioo at Labof-Congreaa
of Induitrial Oiyaniranon* (AFL-CIO)
also tastiflad at OSHA • public haaringa
on the iaaaa of emergency raaponaaL Ma.
Seminario diacaaaad tha participation af
tha AFL-dO m batannga bafora the)
Houaa Suboomrattta* on Batploymaot
and Housing of tha Gtrrenumeiit
Operations CommittM and tha Safety
and Haalth Subcaounttta* of Education
and Laixv. Ua. Saaunano itaud. Thoaa
hearing* daail with tha issues of the
problems for hsfanimi* waste wwken
in both Sup«fa»d operations and RCRA
operations, but they also go4 inn* aa
L**ue that had really not beeat axpiorad
vary fully: tha problems facing
emergency response workers.
particularly for the AFL-OO
firefighter*. The mambars of our
firafighiar's unioa were that one* who
were called ia whoa thare ware spills.
leaks and »
parae.a*th*
i si tea and'
as andi aftac tha fa«C bat they ware
rooooaty catted fa with
B*toda«l
with shea* taulanaa. That ms a»
as I ssael thM wets faUy axpiorad hi
thosw ssMtisyjs aad H wms tho reason
ityin
»• saokad bayond tha
that «• hod cocoa up with ta
toe 1900 law wttcfe dealt only with
and axpaoded U to
opera ttooa.- (Tt. pgs. MS-MS)
F«rta«. OSHA HtfllxlJs us that
Coogswjs caiaodad *^*>« Rti*> to have such
coveiafa. Tma to sadicatad by the
of SARA a* weU a* the
htstory.
As OSHA ttated in toe preamble to
tin proposed rak. "Tba Language of
!«COOQ 12Q(a) rMTKiaMrs s«fety and
ieaitfa ctzBdards for the protection of
•sipiay-ees easaftd "In aazardoos waste
The term "haxardou* waste
~ is tux limited in tha
tad s response to (pills of
hrti«iM* oa the highway or
t mrway tmit car ia order to
one* It to ao< oontaiiod) to at mv
i meantati a hazwdou
waate oparatMax"
"Thta taaarpntatian ta nturforodbt
the fact that SARA la a frM-^auW
itatotory proviaioa and not an
amendnaol to CERCLA. Ta« dear
CongMaaaonal tntant Om ta to prondi
protectloB to anxiioyeea wbenerv the,
daal with hazardoaa wastaa."
In addittoa aectkm 120(«1X4)
ina training for tH
respoaae panuuiMl utiUm the very
broad lam "hazardous amargency
." Soctloo 12B(gKl) indiatn
that training grant* may ba given
indopandantly for emergency mponte
training Mparata from hazardoni vnsti
remorai tramng. Sactkm 12fl(b)(ll) al»
Indicataa uaiuiguucy nwponae n an
Ludflpondant ooncvpt separate from
hazardous
thoaa ando
ito removal opvratlon. fc
ra OSHA beltfrc.
•action 128 to intended to cover
«imaiynucy raaponae to harardooi
•Bualaiioaa winther on an uiiuiutroHed
haxardam waate dliposal site. • RCRA
lite or alaawhera. Howerer. the darifiti
laiBjuagi HI tha acope lections, tnakni'
clear the enly employe™ we: ••
empioyeea hare taa> reaaonab.
poaiifaflrtyaf aagagtag In emerge^
IBHHBIM aiv cot u cd. KnvffyDCjj >
aponM empkrjrte* who tmapond M w
(which haj become a wt*u
reapoiui to
hazardooa •nbatance* are coVencl by
thta final ral« to tha extant that tiny m
expoaed to hazardoaa guiwtancai. SUl
link local j»"«Tim«m* empioyeet in
ttataa ***** have agreementi with OSRi
under Mctioa IB of th« OSH Act mutt t«
regulated by itmte regulations at lead u
eSectivB a* these to protect public
empioyeea. loose state regulation* BUI
be issued within six months of th* to
of promulgation of this final rule.
However, tome conuoenten bav«
commented that OSHA ha* exceed^
the intent of Congress with tha §cop« «'
the proposed rak. Many of thesa
commenten ttated that OSHA'*
coverage of emergency respoa** st «
other than specific cleanup or TSU
facilities waa too broad and
unwarranted. AMOCO'* comment iw
28) is representative of some of tw
comments made on this issue. In ue
comment AMOCO *uted that "Sec
128(a) of SARA is the directive to Obn
to promulgate standards 'for the neai
and safety protection of employe**
engaged in hazardous waste operate
There is no reference whatsoever in
directive to promulgate standard (»><•
with respect to emergency respow
activities outside of hazardous «•
operations," However, other conuw
received from tha petrochemic*1
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Fodeaai Rebate* / Vol. 54. No. 42 / Monday. March 4. MM / Role* and Regulation* 9399
Industry rapport OB • limited basis,
OSHA'* deeunoa to cant <
mponM with th* Mop* e£ llw •tudud.
CONOCO'* comment (10-33) to
rspiesentative of tfaia point of view.
CONOCO state*. "Conooo't primary
concern with the prapoMd rale center*
OB the extremely broad scope of
employee coverage under this •taadard
end compared to Congress' Intent to
cover 'hexardotu watte operation* and
emergency response.' We believe that
Congreee intended lection 128 of SARA
to cover employee* engaged in
haxardoua watte operation* and
emergency reeponae to theea opentiona
on a full-time baste." While thia
comment would teem to lupport
O8HA'* coverage of employee* engaged
in emergency response, that enpport ia
limited to those employee* engaged in
reeponae on a full-time baaia at
hazardous waate operation*.
Baaed upon public testimony end
written comment* received into the
record ef thia rulemakiag. OSHA baa
concluded, that because of the high riak
aiaodated wtth emergency re*pan*e to
the release* of hazardona substances
•tt«i the number of theae incident*
occurring, that coverage of worker*
conducting toeh emergency re*pon*e
activities ia both appropriate and
necessary.
OSHA beUevee that the acope of thia
final rale caniee oat the mteat of
Congre** and iaconakteai with good
ocoBMtfooal safety and health policy.
Employees performing clean-op
operation* under CEIlCLAc-RCRA
(corrective action*) andatate or local
government rteeignared sites generally
lemployaee likely to have the
t to hazardous
b»oovered by virtuafly afl the
pnviiione of tfaia final rule. Employees)
expoaed to haaardona waataa in rontine
RCRA hazardous waete operations, who
are regularly exposed to hazardous
waatee bat ma. more controlled
environment would be covered by the
more hmitedrequiremenfa of paragraph*
(p) and (q> Emergency reaponse
usually for abort
worker*,
period* to often unknown but possibly
high level* of hazardona substance*.
would be regulated by paragraph (q).
2. Application. OSHA proposed to
define the epplicetion of thi« fig* I rule in
paragraph (a)(3) of OSHA** Notice of
Proposed Rulemaldng (NPRM) published
on August ia 1987 (52 FR 29620).
"Application" establishes which
reguletions within this rule epply to the
•pecific worker populations to be
protected by thia rule.
In paragraph (a)(3Kl) OSHA proposed
that the employer would have to comply
with the standards in 28 CFR Part* 1910
and 1920. aa well as with the
requirements specifically covered in the
proposed rule. If there were e conflict or
overlap between standard*, it wee
proposed that the more protective
provision* would apply. Since thi* rule
doe* not cover all of the hazard* present
et hazardoua waate opentiona, other
OSHA itandard* In Part* 1910 and 1920
should apply to ensure employee safety
end health. Other OSHA standard*
regulate many other hazard*, and OSHA
want* to make clear that the other
standard* continue to apply. Also.
OSHA proposed that haaardona waste
operator* who are not within the scope
of thi* itandard should continue to be
regulated by the Part* 1910 end 1928
standards. OSHA is keeping those
provisions in the final rule for the
reason* stated with minor editorial
change* for clarification.
In paragraph (a)(3HU). OSHA
proposed that all paragraph* of section
1910.120 except paragraph (o) would
apply to haxardoua waatee operation* at
CERCLA sites, at major corrective
action et RCRA cites, end at tttea
•ted for dean-op by state and
i governments. Paragraph (o) of the
propose! addressed certain operation*
conducted fni^r the Retwi'*'^
Conservation and Recovery Act of 1971
hazardoua waate operation* at RCRA
sites which an involved in treatment.
storage, disposal and handling of
hazardous waate. The proposal
contained a limited exclusion from these
reguletion* for certain small quantity
generators and less than atvday
accumulators, such as dry deeners and
gas stations, which come within the
pur view of RCRA. but an not hazardous
waate opentiona In the normal meaning
of the term. The exdnsion was available
to these opentiona depending upon the
employer's decision to provide or not
provide emergency response by
employees to releases oC or substantial
threats of releases of. hazardona
OSHA proposed to exempt small
quantity generator* and lees than 90 day
accunmlaton from all pert* of the rule if
they did not provide emergency
response by then* employee* to releases
of. or aubatantial thnata of release* oC
hazardous substances. OSHA farther
pfOpOtMQ to routiB*)t dsy^
tn day npesetkaia of an TTt\ llrenami
TSDfacfllry,
OSHA haamade two ednorial
paragraph (aXaXfQ w«"out changing the
intent of tfaaparagiapk Ftat ntfaer
than referring to-andi of the type* of
site* individually. OSHA ia Baking
rcfBKfiCD to tbei >cop»> p*my«*^o*>
(aHlKQ through (*KlKtti) to identify the
sites that misapplication paragraph
addresaea. The sites to be addressed
remain the seme aa proposed. Second
because the codification of paragraph*
s»« changed hi tfaia final rale due to
changes made to the proposal.
paragraph (p) of 1 1910.120 rather than
paragraph (o) will apply specifically to
Hazardous waate operation* at RCRA
sites which an involved in treatment
storage, disposal end handling of
hazardoua waate. The new requirement*
of paragraph (p) an dimmed later in
the preamble.
to paragraph (aMSKui). OSHA
proposed that the requirement* set forth
in paragraph (o) of section 1910.120
would apply specifically to die
~-jt*^ I^^BjA^L^ ^^^^Hld^^^i^
WUB OBUBM employee
of
rely on the
•* local fira-eod
OSHAb)pravidia«
a safe
OSHA proposed that i
meetdte*
prapoeod ruiat OSHA <
proposal ia aopportad by me reccro.
Wtthootl
gas stances, dry cieeaen. aaaooer
stare smaU qaaaoties of a
intended «•>
They do not
-------
Pwdarai Eagiata* / VoL 54. No. 43 / Moa«i»w. Match- B. 1388 / Rules and RegnJatfana
exposure to a uMsbai ef 1
health risks to smptaysss that
hazardoast wnato aitos typically do.
In paragraph (ajpffv) OSHA
inparegranmQloflhieaaenanwoeid
specifically apply to tkw work conducted
by ssncrgancy response personnel when
they laapond to hazardous substance
emergency incidents. Emergency
response personnel tnflnA* firefighters.
EMS personnel and ponce as wall aa
other employees.
The regulation of employees providing
emergency response baa been discussed
under the "Soapa" petttrm of this
preamble diacMssian. Further discussion
of OSHA's changes to the emergency
response portion of this rulamakngis
contained hi the discussion of paragraph
(1) of the proposal
OSHA also reqnestad mm-mot on
what other opera tirms should be and are
intended by Congress to be covered, and
whether ssiafsfin operations shonM be
fTcfndad because of low exposures. For
example, manlcipal or other sanitary
landfills thai handle dnmaatir wastes
would not nermafly be regulated by this
rule. Similarly, waste paper or scrap
metal operations would not normally be
regulated because of the type of wastes
they handle. However, both types of
operations1 would be regulated if Stay
have ciean-*ns for or handle hazardous
wastes meeting die scope provisions of
the standard.
Also, wuipiui em at hazardous waste
disposal sties wtiawifl not be exposed
to, or do nethnveth* potential to be
exposed to* *tMBBPl"*lT ^ilMtam as are
not covered by thai no*. Ths prc
rolemaking that may cause confusion.
However, the following new definitions
have been added as a result of
GomBeBta made fat the record;
"published exposure level" and
"uncontrolled hazardous waste site".
Except for the deflnitkni of "established
re lever* which has been
amended to define "published exposure
level." no definitions have been
removed from the proposal
The tern 'established permissible
exposare omit" was incorporated as
part of the determination of whether
medical surveillance was required.
There were a number of cumiaeiHaon
this definition.
One commenter. Four Seasons
Industrial Services (10-8). believed that
the definition should be broadened. FOOT
Seasons stated. The routes of rimuluil
exposare are through Inhalation, akin
absorption, and mgeaooa. All of thaae
have to be considered when dealing
units. Yuw
definition e» written does aot factosVs-
concerned that OSHA indnded the
NIOSH Reujiamended Exposure Limits
in the definition of PELa. The B.L
DaPont de Nemours. Co. (tO-38?
receivedageinsttheNIOSHI
DoPoot stated, -NKJSH ktaitahav* MH
undergone public review and <
as have national corns
and regvUtary i
Therefore, tikey ehoetd not be
__ s.ie,n»etibBfldfag
for sAe sjecnva. oonetroctioB of OP tna*
setting np of -temporary faoh'ties hi S»
dean zonav or the doewe of * RCXA
sitemvolvh^tBebanVflngofadaycap
over haxsjfd wsjatev. are considered to
be conetnartion acttvnfea cowrea by tne
standards hi 20 CTR Part 192&.
As a ceswJt of AM "••«•"«? received
during the pnbBe rneimeBl pbaae of this
rulema*iat> OSHA ha* made some
changes) to the dearee of ragviation for
ui0 soopv QK iksV stmosnTd ffffp^umffiT to
cover sach worxcrs and paragraph
(a)(2«iv) ktentifiea the new paregraphs
within the rnie that reflect the changes
rt>» standards that apply
limits1." CONOCO fl9-tt) agtaad \
llu j sIsssM 'Tlmau rTTntlf I ftnriti im
not eBBfect to pear teview OP panuo
comment as are OSHA's PELa, We
tfts
NIOSH Rmrts. We
nse PBLs
SMt SaDpart Z.
Or; JsjMBMelea, DMstoa of
EnvirovaaantHealth Assessment Slate
of New To* Department of Health
3. DevutjiaKM. in paragraph (a)(4).
Pp/yiiifffUJSj OSUA prapoeed to identify
and »<•*«»• the vanona terats eaed in tida
OSHA's expert wttuesaea in
occnpattonal medicine, stated in Us
testimony (Tr. pg. «5) that, 1 think if s
important that the OSHA standards be
supplssnsjntoel by tafomatiBn from
NIOSH and ACGVL both of which cover
a larger manber of chenricaia or toxic
subaoneaa and both of which incrade.
or at least consider, more op to date
information on the toxkaty of these
substances."
In addition, during the pubtic bearings.
OSHA. through Hs panel of staff
members specifically asked Captain
Richard A, Lamen. Director of the
Division of Standards Development and
Technology Transfer within NK3SH.
about the peer review process of NIOSH
RELs. Mr. Thomas Seymour o
directed the following qnettion n,
Captain Lenten (Tr. pg. 195).
(Mr. Sqrmoar) W. U«. r**^ ,
feedback ta our record •bout ikt OM»T1
'
•xposnrs omits. There tun b»tn ,
made that me RELs sn not |
, I wonder
u* how the RELs kev« bMo dmloMh
Nattonal bsntnts for OcooaMtQoiils.i!
•adHeaktk
Captain Lamen's responM (Tr n
195-197) to Mr. Seymour w«c
Okay, m iMooose » UM PMT n^
qDesaoa. 1 WMid sey tlMt pratMbly dil!
w«w more peer reviewed uua u*at
rsrnmmeadstlnns Thaflrttproaual
an RELat NsttoMl hitttmifa
Hi ruistlsael lihlj smt llnllli U u r.
such a rseaaeBsadaaoa b> d>r»toprt »
Director of NKKH mrM«jh • poattoi p
That Is then, sevlewea by soBtor
tufl. Oant that apenval is gr«a. i
tbutmi
I kiyers of review within
NIOSH. ttts then sent oat for external
review. On me average, vrv ujutflj Mod^
to more Baa) • experts in the BeU Bnt
Mswtx
Wei
MOOT review stag atftedhwAM1 M«
A insiilliaj Is rtMTi hsIrtwflTrftnr—"1
NIOSH at whfc»ttoe»s<
(review)alellhei
Is saaoe by the Dkwksr ef NIOSH wtasfj
. a
U the dscistea • to pabttse, thM •*
1 __LiuU iLu uitiuis ilinimsr " "•*
Director of OSHA.
So It toss throneh s very ex»B«iv»Pf
srticls saberitted to ytm nirtewfogniii
which Is written by • researcher **
generally seat eat to three to Br« to**
to review beiaf* trs pssosd to s
journsL
So ths sxtsasiveAess ol
I think, is ouch fCMlar thsa tfaet far * ^
preview jaamsl srticie.
In light of duaa comments OT»J»
concmded that the NIOSH RQ j^',.
undergone the necessary peerrev*»
be indnded m the standard's hiewro1
of limits.
The term "established exposo*
levels" wes defined in the proPf'*'!
indicate me levels which wonW W
medical surveillance of the expo**
employees. The term indnded not i J
OSHA estabUsbed PEL*, but slso
-------
Federal Register / VoL 54. Mb. 42 / Monday. March 6. 1989 / Rules- and Regulation* 93O1
exposure UoiU suggested by NIOSH
and ACGIH. After review of these end
other comment*. OSHA conclude* that
it ia •ppropnata to go beyond the OSHA
established PEL* in triggsring IM^HCT!
surveillance, Pint. medie»i«acveulance
ia apptopriate for woiken sx|iuaed to
toxic chemicals other *^*" those*
covered by the PEL'*. Second, because
of the broadly-worded language in
section 128(b)(3). which requires
medical surveillance for workers
engaged in hazardous waste operations
"which would expo** them to toxic
substances." Some of these "toxic
substance*" are not included in the
OSHA PEL*. When OSHA complete* H*
rulemakmg on the air fntrnmimMMM
propoMl (PEL'* project), there wifl be
fewer toxic substance* not covered by
PEL'*. But in light of Congressional
language and the large number of
hazardous chemicals present in an
uncontrolled hazardous wnta *ite,
OSHA conclude* that this definition is
appropriate to protect employee safety
and health.'
Tjie term permissibM-sxpostirs
limits" wee defined in the proposal a*
the inhalation or d*r*"** permissible
exposure limit specified in 28 CFR Part
1910, Subpart Z. As • remit of the
comments received in the record. OSHA
ha* amended Me definition that Ignored
the health omits tpnifltii In Subpert G,
for "permissible exposure limits."
"permissible exposure limits" to indade
a reference to Sabpert G of Put 1910. It
now include* both Subpart Z health
hazards ""^
Subpart C of Part 1910.
^ First OSHA has changed the term
"established expueare levels" to ths>
term -published exposure leveF to
reduce confusion. Second, the tern
"publishea exposure level" is defined es
the exposure Mmt*« published in
Occupational Health Standards" dated
MM, IncorporatecVby reference, or if
none ia specified, the exposure Units
published m the standards specified by
the American Conference of
Governmental Indurtrial Hygtenists in
their publication Threshold *-»"«**
Values and Biological Exposure Indices
for 1987-88" dated 1997. incorporated by
reference. Third, the provisions of (0(2)
on medical surveillance have been
MRS to both
changed to cover oven
PEL's end. if i
to published <
,thi
.OSHA
KposureU
concludes that with these changes the
definitions are dear, comprehensive and
carry out both statutory
Appropriate medical u iliti fa in
determining whe
id
surveillance ia required. Some
commentera stated a broader guide i*
necessary for respirator use and that is
discussed *""*** paragraph (g).
OSHA requested comment on the
sppropriateness of its definitions of
hazardous waste, health hazard and
hazardous substance and whether they
were consistent with EPA and DOT
practice. Several comments were
received on dwse Issues. One set of
comments criticized OSHA'*
incorporation of petroleum and
petroleum products tat Us definition of
hazardous substances.
A typical comment was made by
EXXON (10-33). m their comment*
EXXON presented the fallowing
di
hasaidoM waste*. As naiad •bov*. UM DOT
definition at hasardou* nbstmnoi it 48 OH
17U should property be Incorpenud in ot>
propoMd OSHA definitiaa of hasaroeo*
sahstinc* It Is not • ws*t* daftniUon.
Therefor*, th* ptoposad dtfiainoa at
hatsidons wsrte should be ttmiwd to w«*w
materials: and. the DOT deBoittaa of
h...^^. »A^.iu^ mhanU km fjmmrtf
OSHA doe* not sgree with these
argument*. Section 128 of SARA i*
directed to protecting workers from the
hazard* of all hazardous waste spiBs.
Petroleum products create significant
health and safety hazard*. Many
comment* supported OSHA'*
i of petroleum and
Penes* UM
product* in tfas(
•otMtaae*. As «" _
betow *t pases 11 to U (laMnei BQOON
the
rgPAj.*ad
ef Ttnesartettae, (DOT)
Daring the questioning of Dr. Kenneth
H. Chess. HP, President of the
Washington Oceupertostel Health
Aaeodatea. inc. Mr, Cheppefl Pierce of
the OSHA peasi asked Or, Chase the
foUowng question (Tr. pg. 451)TDo you
fed that medical monitoring for these
typMofproduets (petroieuB prod»o,|
is appropriate!"
laappnpriats*)***
a* a
noindicetkmlaBAKA
. Tbera ta
ocdaskMi or te sob> act
EXXON further stated:
UtaEXXOWs<
mate
r "Jin tnllii nil ill us MIS nf
onlsw then is a nlease of a
Thsnsonttto
prodncts to Just too broad a tenn for me
to enewer that m e general w»y. Certain
PVtZDWQBI QtftVBttVM W BWW4 UkXifi
concern to aaora about chronic toadoty
that is most Hlffh/iU to detect."
Daring DM heerinc*. OSHA aeked
nanyoflaetotilrlrtnsjaiwhoteetaedif
Fighters. AFL-OO: raOSH: aad the
Seattle. Wasfamgtao, Plre
Mr, Gregory NoB.m«
George's Coonty Mazykad Ffre
pg. 44A). Mr. Thomas Seyssosr of ••
OSHA psoei eddnsssri MtNol by
diraetiw. S*e 40 CR Part «B ead i
at SB FR13480, tt*« (Aprfl 4. tsV). OOTI
SM B FK 9H* 9*f i. taen A*
last prapQMa Osi^tadttaB of
WMH-hxsries UH BVA ROtA
h*xHda*B wes**~**jd nv DOT
«S CFRI71X Tke ettsd DOT
dsflDMbechl
sabstaooes deeJing wtm *SH
-------
commodities have been thrown into the
hazardous materials field.
"We now regard them in the
hazardous materials field from a
practical perspective."
Mr. Thomas Seymour of the OSHA
panel asked Mr. Richard Duffy of the
International Association of Fire
Fighters (Tr. pg. 110). "Mr. Duffy, we
have had some previous commenters
who have advocated that petroleum and
petroleum products be excluded from
the scope of the standard.
The example that you just gave about
the propane tank inside the building
exploding and killing Ore fighters, what
is your opinion about whether we
should exclude petroleum products from
this standard?"
Mr. Duffy responded: "I don't know
how we would classify them. I would
object to that I mean. I don't know how
to better qualify—I could talk to you for
days about incidents involving
petroleum products. I don't see any
reason to exclude them any more than
excluding the oxidizers or any group. I
mean, you could pick lots of products
and ask to exclude them. And I'm sure a
lot of the lobbying entities can establish
reasons for it But I can't see any in
terms for fire fighters."
Mr. Charles Gordon of the Department
of Labor's Office of the Solicitor and a
member of the OSHA panel asked
Captain Richard A. Lemen, Director of
/the Division of Standards Development
and Technology Transfer of. NIOSH the
following question (Tr. pg. 200-201): "In
the case of spills of petroleum or
petroleum products in either an
emergency response situation or as a
hazardous waste dump were there are
petroleum products as one of the major
contaminants, is it appropriate for all
the provisions of the OSHA standard or
the recommendations to apply in those
circumstances?"
Captain Lemen responded. "We
believe it is appropriate and they should
apply in those circumstances, as well."
Mr. Seymour also asked Deputy Chief
Roger Ramsey of the Seattle Fire *
Department (Tr. pg. 142): "I gather from
what you have also said that the
definition we have, including the DOT
hazardous material definition for
hazardous substance and materials is'
appropriate, and that we should not
exclude petroleum products from the
coverage of this standard?"
Deputy Chief Ramsey responded,
"Absolutely not"
Many spill* and emergency response
to these spills involve petroleum
products. These spills present both
health and safety risks. Training is
necessary to protect employees who
respond to petroleum spills as with
other spills. In fact these are usually the
same employees.
OSHA concludes that it is crucial to
cover responses to petroleum spills as
well as all other spills because
petroleum products constitute a
substantial threat to employees
responding to accidental releases of
these substances. Many petroleum
products present health hazards as well
as fire and explosion hazards. In
addition they often contain fractions
which present high health hazards. For
example, many contain benezene. a
carcinogen to which employees may be
exposed.
Therefore, OSHA is not amending its
definition for "hazardous substance" to
include the petroleum exclusion
referenced by some of the commenters.
The other definitions are discussed in
the preamble to the proposal for this
rulemaking. There were no major
comments. OSHA concludes that those
definitions are appropriate for the
reasons stated in the proposal preamble.
Paragraph (b)—Safety and Health
Program
Paragraph (b) of the proposal has
been reorganized for clarity as a result.
of the public comment Basic
requirements remain the same. Specific
changes are discussed below. This
paragraph basically requires that a
written safety and health program cover
safety and health organization and
specific work practices to assure
employee safety and health. OSHA has
concluded that it is crucial for employee
safety and health to have a written
safety and health program that would
force the systematic identification of site
hazards and identify employee response
to those hazards. The written plan is
necessary to communicate hazards to
employees for their awareness and
protection. (See preamble discussion at
52 FR 29624.)
OSHA received many comments
supporting the requirement for a written
safety and health program (i.e. State of
Wyoming. 10-9: James T. Dufour. 10-78;
International Association of Fire
Fighters Local 291.10-12); other
commenters have made suggestions for
changes to the proposed language.
OSHA concludes that for the reasons
stated a written program is necessary.
The following discussion covers specific
changes.
OSHA has included a non-mandatory
note at the beginning of new paragraph
(b) that explains the acceptability of
safety and health programs developed
and implemented to meet other Federal
state, or local regulations in meeting the
requirements of this paragraph. Some
commenters believed that OSHA's
requirements for a safety and health
program were somewhat duplicate [
the contingency plans and emergency
response plans required by the E.P.A t
its permit requirements (i.e.. Tenne "'
Valley Authority. 10-13: National F
and Coating Association. 10-72; Joh.
Wax. 10-84). OSHA will permit exist?'
programs that have been designed to
meet other government or corporate
requirements. For example, contingency
plans developed under 40 CFR 265.50
are acceptable in meeting this
requirement if they are supplemented
with the provisions established by the
OSHA standard. OSHA does not intend
to require the duplication of efforts
made to meet other governmental
regulations. Therefore, any plan
containing all of the elements required
for the OSHA plan will be acceptable in
meeting this requirement without the
need for developing a separate OSHA
plan.
In paragraph (b)(l) of the final rule
OSHA has taken the language proposed
in paragraphs (b)(l)(i). (b)(2). and (b)(3)
of the proposal and subdivided it into
paragraphs (b)(l)(i). (b)(l)(if). (b)(l)(iii).
and (b)(l)(iv). Paragraph (b)(l)(i)
contains the first two sentences of the
proposal along with two new sentences
that clarify what the safety and health
program shall Include. OSHA has
included the new sentences and the new
note to this paragraph to provide further
guidance to employers who may need
assistance in developing their safety and
health program. I
In paragraph (b)(l)(ii) of the final rul|j
OSHA is using the last sentence and the
list of chapters proposed in paragraph
(b)(l)(i) and subparagraphs (A) through
(C). There are no changes made to the
language as proposed other than a
recodification of the paragraphs.
In paragraph (b)(l)(iii) of the final rule
OSHA is using the exact language
proposed in paragraph (b)(2). The
proposed language has been moved to
this paragraph because it contains a
requirement that is of a general nature.
In paragraph (b)(l)(iv) of the final rule
OSHA is using the language proposed in
paragraph (b)(3)(i) with one exception.
A new phrase would require the
employer to inform contractors and sub-
contractors of the site emergency
response procedures in addition to the
proposed information. One commenter,
COM Federal Programs Corporation (1<>-
83). suggested revised language to the
proposal that would assure that the
contractors and subcontractors received
the site specific safety and health plan
as well as the safety and health
programs. OSHA agrees with the
suggestion of the commenter and that
-------
•taftotar 7 VaL-54. Na 42 / -Monday.
•BO KCgUMUUUa
9303
the
recommended
•the
suggested by
CDM Federal Program*.
In paragraph f>Rl)Cv) «* the find rale
OSHA U using the exact language of
In paragraphs (b)<2). (oft). and (bM4)
of tha final tula OSHA to tiling tha exact
language of paragraph* (b)(lXii),
(bHlMttfl. end (b)(l)(iv) of tha ptopouL
Ona comniantar. jama* T. Dufour (10-
78), whila supporting tha UM of safety
and health plant aa an expropriate
communication tool for identifying site
hazard*, auggeatad that OSHA should
require a more ennn«»«iMii«i»« review
and control of the plan to assure its
professional quality. OSHA believes
that tha language of paragraph (b)(4Xiv)
would provide for this type of oversight
and control Therefor*, the only change
to paragraphs (b)(l)(ii) through (b)(l)(iv)
is a recodification of the paragraphs.
Paragraph (c)—Site Characttruatian
andAnaJjnif.
The employer needs to know the
hazards faced by employees to order to
develop and Implement effective control
measures. Site characterization provides
the information needed to identify site
hazards and to select employee
protection methods. The more accurate,
detailed, and comprehensive the
information available about a site, the
more fie" jnutacUm measures can be
wkployees may encounter. Congress
cleariy intended-mat such a lequueiimit
betnduded Section 12B(bKl) of SARA
provides that tha proposal include
reuiureiHitnta for a funnel MUTarti
aiuuyai»oftb» etto ••».••
It is important to recognize that site
characterization is a continuous proces
At each phase of site characterization.
information is obtained and evaluated to
define the potential hazards of the site.
This assessment is to be used to develop
a safety and health plan for the next
phase of work, hi addition to tha formal
information gathering that frifret place
during the phases of site
characterization described above, all
•ite personnel should be constantly alert
for new information about site
conditions.
In paragraph (c) of the final rule
OSHA has used most of the language in
Paragraph (c) of the proposal. New
headnotea have been added to the major
paragraphs to make reading the
requirements easier.
In paragraphs (cMD through (c)(4) of
the final rale. OSHA has used the
language of paragraphs (cHl) through
(c)(3) of tha proposal. The reason for the
one additional paragraph in the final
«le is that OSHA has numbered the
initial unnumbered paragraph in the
proposal, and renumbered the rest This
is an editorial change and does not
change any of the proposed
requirements,
In paragraph (cKS) of the final rale.
OSHA is using the language of
paragraph (c}(4) of the proposal with
one change. Paragraph (c)(4)(li) of the
proposal has been revised as paragraph
(c)(S)(li). The new requirement still
requires the use of a five minute escape
self-contained breathing apparatus,
however. Its need is now based i
employees had to have access to an
ESQBA during initial site entry. Two
commenten. the State of Wyoming (10-
9) and COM Federal Programs
Corporation (10-63). suggested that
OSHA revise this requirement to
recognize that the use of ESCBAs should
be determined by the nature of the
health hazards and the nature of the
work to be performed. OSHAagreee
that all employees who cannot be
exposed to site condftions where
possible health hazards may occur
•hould not be required to carry ESCBAs.
Therefore OSHA has amended its
proposal aa follows. Two condition* wffl
now limit the employee population that
must be provided access to ESGBA.
They are (1) if positive ptassuia aatf-
contained breathing'epperatne iitMt •
used ae part of the
the]
thai
in population* where these two
provided wttk-1
t language aa
(0(4X1).
-------
VsL M,
IMS / Idea and Ragtdationa
safety and haakh hazards. Section
UftfbKJ) af SARA aoatas initial aad
rvcoovoitiaiaiagtoajamchKWdtolhe
final raja. TW taeaatol tba final braining
pravJeians is *» provide esaaioyees with
the knowUdga and akflls aaoaeeary to
pmfaLai hsisninaa wasta rleaa ap
operation* with minimal risk to their
•afety and health.
Tha pTppasad requirements far
training tn paragraph (e) addressed tha
naads of emphiyaaa who will ba working
at CERdA sftaa, cartaJa RCSA sites.
andsinw dMtgnatad or idanflfied for
dean-op by vtahi or local f^m y^i***ot>-
~~ imiuaaJ ppniahJBs mdaded a
of heaJth basarda and tha aae of
1 protective equipment
I haxardoaa waste
operations may face serions health and
safety risks. Reminder! are naadad of
this aad of work practices necessary ta
•void hazard*. Pa
ilpi
equipnaot provida* ainch of tkia
proleettoo. M than it no ralniniag in the
urn. can and maintenance of penoaal
protective e^vipnMBC wch ae^dpauot is
iUStllMytJUU off Oie mim, and a •ttuhtiiim
of ATM days of acftad field expectance
undw &* e&vct eapervMoa of • trained
and aMMiJaucad supaiftM. at the ttma
of fob aniynMBL Conyraaa ***•
(pacifically iannjnU tba*a how and day
SARA far (br prup
The prapoaad uvu
oae-tt«B»
d flad ftnd&rd
hy (ha Mayajyei for aach
Its-be
retrained for 40 hour* at each cite at
whica tney vraEk. KaaMoyeaa wae- had
unlikely to be propariy ettmtad to
provide adequate protection.
In ail area* of framing, whether H ba
for general site eaipliTyneS. svpanriaars
at tha aita, or for tha aaa of spectfia
equipment, the level af training provided
must ba ««Mt«*»n with tha workar'a tob
function and raaponaibUitiea. fUfreaher
training arast be provided to
reemphasae tha *«<«•! traming and to
update employees on any new policies
or procedures.
Secoaa 12t(dX*) af SARA noawssj
that OSHA provide ior oeruficanoa thai
an emplayea baa retailed tba training
required by tba standard. Seonon
128(d)(l} provtdaa that OSHA net
roqutre «~'-^ ior eaepioyeea who have
already BMatved eqnrralant tnaang,
Tba final ataaderd has provisiaa* to
meet this airactrva,
OSHA rae-aeeted coaunant as to
whether Its proposed training
hazardoaa
propoaad
ttaapi
OSHA'*
paragraph (a) wax* Banted to
upafi
fV0aM by
thct rvcttrvd t nbctaBtici
addiaaaiag tha trciiaaf of <
is H*fa paaaaafaaa mdav tfaa) appropriata
In paragraph («)(!) of tha fioai rai»
OSHA a*a eomhinad tba mtrodwtacy
pirayapii af propoaad parayaph (a)
paragrai* (aX*^ To* ssfiodxctoty
. ^"^« tBaaa
kare
, tit*
i thai ibkity to
+nd to ?n*'**
, Secaoc 128(dX2] of SARA
i r_r**^ toflW flOBH CW ***^ DO*Qn
[ior
aad
(eX5| has bean
ri^rgnatod (aXlXtO- OSHA cossiden
this aa aditocial chrafe which groopa
two geoarai raqaJnawots tutder a tingle
paragraph ttbed "GeaaraL"
la nanajapa, («)(z) of tha naai rale
OSHA is Bavta tba iaagaage of
paragraph (a)(l} ta the proposal Some
totcfieetthe
In paragraph (a«i| of t^ |,F
OSHA to ravismg tha
of paragraph (e
Sarvrai comments
propoaad «Vho«r tratam, i^n,^
for all employaaa wao worit OQ
attea fl.». w^
Techno
10-«: MUMS T.
tha oooDMsttars battawd (hittfht
of tnmtag for aoma employee, nt|
tvpa of atts waa axcaaarm For nu
it was argvad that 40 hom ,^
are required to have 24 hoar* «"*•
and one-day of on-tha-Job trsffl^
OSHA has also concbdad m«
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Federal Register / Vol. 54. No. 42 / Monday. March 6. 1989 / Rules and Regulations 9305
indicating that exposures are under both
permissible exposure limits and
published exposure limits and that
respirators are not necessary.
In paragraph (e)(4) of the final rule
OSHA is using the language proposed in
paragraph (e)(3).
In paragraph (e)(5) of the final rule
OSHA is using die language proposed in
paragraph (e)(4) with the addition of a
new sentence. Some commenters
thought that the proposed language for
the qualification of trainers was too
broad and ambiguous. The State of
Indiana (10-23) offered a representative
comment: "Knowledge or training
equivalent to (redundant phrase
removed) a level of training higher than
the level that they are presenting is no
assurance that an employee is capable
of providing adequate training to other
employees."
Another commenter. the International
Union of Operating Engineers (10-56).
stated, "We believe it irresponsible to
summarily state that trainers must be
'qualified.' without defining the term
other than to suggest that one who
knows more than the person he trains
may be a qualified trainer."
Subsequent to the receipt of post-
hearing briefs. Congress amended
section 126(d) of SARA to require the
Secretary of Labor to develop
requirements for the certification of
training programs offered to employees
and employers who must meet the
training requirements of this standard.
OSHA will soon be publishing a Notice
of Proposed Rulemaking to cany out this
Congressional direction. The
requirements of that rulemaking will
expand on the provisions stated in this
rulemaking.
In order to provide interim guidance
to employees and employers in
determining the competency of trainers
and their qualifications. OSHA has
added two sentences to the proposed
language. These sentences require the
use and demonstration of training.
credentials and experience to show
competency as a trainer.
In paragraph (e)(6) of the final rule
OSHA is using the language of proposed
paragraph (e)(6) with one minor change.
In addition to permitting certification to
be given by the classroom instructor.
OSHA will also recognize certifications
given by the head or supervisory
instructor of the training facility. This
change recognizes the fact that some
training certificates are signed by the
head instructor upon recommendation of
the classroom instructor, rather than by
the individual classroom instructor.
In paragraph (e)(7) of the final rule
OSHA is using the exact language of
proposed paragraph (e)(7).
In paragraph (e)(8) of the final rule
OSHA is using the language of proposed
paragraph (e)(8) with the addition of an
example of the type of refresher training
that OSHA would consider acceptable.
OSHA considers, and has now
suggested, that critiques of prior
emergency response performance can
serve as a means of refresher training.
Critiques of performance during an
emergency response can give employees
a training experience In which they have
actual knowledge of the acceptable or
nonacceptable actions taken during the
response. Such critiques can also
provide employees with the experience
they may need to perform In a more
appropriate manner during their next
response. The proposed requirement for
annual refresher training has not been
changed.
In paragraph (e)(9) of the final rule
OSHA la using the exact language of
paragraph (e)(9) in the proposal
Paragraph ff)—Medical Surveillance
The proposed rule Included specific
provisions for baseline, periodic and
termination medical examinations. '
Section 128(b)(3) of SARA provides that
this rule include requirements for
medical examinations of workers
engaged in hazardous waste operations.
In addition, the EPA manual referred to
in section 126(e) of SARA has more
detailed requirements for initial or
baseline, periodic and termination
medical examinations. The clear
Congressional direction is to provide a
comprehensive medical surveillance
program for employees engaged in
hazardous waste operations where it is
medically prudent
In paragraphs (f)(l) and (f)(2) OSHA is
making some changes for clarity. In •
addition. OSHA is using the new term
"permissible exposure limits or
published exposure levels" instead of
the term "established exposure levels."
The reasoning for this change has been
discussed under the paragraph of this
preamble addressing definitions.
OSHA would like to clarify an issue
concerning who is covered by medical
surveillance under paragraph (f)(2) that
has cause confusion since the
promulgation of the interim final rule.
After reviewing the record of comments
addressing medical surveillance, it
seems that several commenters. in
particular from the fire service (Le.. 10-1.
10-3.10-4.10-12.10-3210-79). believe
that all firefighters must have the
medical surveillance protections of •
paragraph (f) since they may wear
respirators 30 days or more a year.
Firefighters responding to structural
fires will typically wear self-contained
breathing apparatus when they enter
burning structures or other hazardous
locations and they may make such
responses 30 days or more a year.
OSHA is not requiring all firefighters
who wear respirators 30 days or more a
year to have medical surveillance.
Paragraph (f) applies only to Individuals
within the scope of paragraph (a)(l)(i)
through (a)(t)(iii) as set forth in
paragraph (aj(2)(ii). Typical firefighters
from local fire departments do not fall
within this scope. These firefighters are
normally covered by the requirements of
paragraph (q) as specified in paragraph
(a)(2)(iv). Paragraph (q) does not contain
requirements for medical surveillance of
firefighters unless they are members of
an organized and designated hazardous
materials response team, are hazardous
materials specialists, or have been
Injured due to an overexposure to health
hazards during an emergency incident
Involving hazardous substances as
established in paragraphs (e)(9) (i) and
(ii) of the final rule.
In paragraph (f)(3) of the final OSHA
is using the language proposed in
paragraph (f](2) with some changes. In
new paragraph (f)(3)(i)(B). OSHA is
adding the phrase "unless the attending
physician believes a/longer interval is
appropriate" to the proposed language
of paragraph (f)(2){i)(B). Several
commences (State of Wyoming, 10-9:
American Society of Safety Engineers,
10-29; Union Carbide Corporation. 10-
56) suggested that an annual medical
examination may be excessive for some
employees, particularly when an
attending physician can make a
recommendation for a less frequent
schedule. The American Society of
Safety Engineers (10-29) stated. This
reviewer concurs in the approach that
OSHA has outlined in this comment
area that the practical health benefit of
annual medical examination for
hazardous waste operation workers is
indeed uncertain. This is a broad area
thai requires input from the attending
physician, the employee and the
employer. It is recommended that
annual medical examination not be
required rigidly, that this be a flexible
time frequency."
Wyoming (10-9) stated. "Periodic
occupational health physical
examination on an annual basis may not
be warranted under all conditions."
They go on to state. "It seems
reasonable that a good occupational
health program requiring physical
examination would be based upon
documented personal exposure levels
and a medical physician's
recommendation rather than on an
arbitrary administrative decision to
require personnel to undergo annual
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9306
Federal Register / Vol. 54. No. 42 j. Monday. March a 13B8 / Rttle* and
periodic physicals if they fit into the
categories under 11910.120 (0(1)10 and
(Od)oir
Union Carbide (10-M) said. The
frequency of medical examinations and
consultations in this proposed rule has
been redefined and the proposed change
clarifies the issue of medical
surveillance but retains the annual
requirement for 'all employees who
wear a respirator * * '.'This frequency
of examination is arbitrary. There is not
medically-supportable rational for this
annual requirement"
There were also comments in support
of OSHA's annual physical examination
requirement The Occupational Health
Nurses (10-30) stared. "AAOHN
supports pre-exposnre. annual, and exit
examinations with provision of
additional exams if over-exposure or
signs or symptoms develop." Lockheed
(10-*5) responded to OSHA's question
on whether examinations should be
performed yearly, or at other intervals
by stating. "Medical exams should be
performed at least yearly."
CSX rh«mt<-«l Services. Inc. (10-63)
stated, 112) Paragraph (0 describes
medical surveillance requirement*. The
general program described by OSHA for
pre-empioyment annual, post-exposure.
and termination p*****^*! examinations
is excellent.''
BP America, Inc. (10-SS) stated. The
need for (Medical surveillance of workers
who wooid be covered under the
provisions of the proposed regulation is
approprtata and is supported," They
further *Uta. Thepropoeed
rix-]iur»rrw»TH a} rrmrrnnm workers
exposad in emergency situations, but
not onnrirme periodic survetllanca
itmpiy because-of the single episode.
per te. is logical, and is strongly
supported. Having such employees
ryrfiHuLm under peiiodic medical
surveillance on the basis of tha finding*
of the medical examination is, of course.
appropriate."
Because of variations in employee
exposures dot to work schedules.
annnii physicals may not be medically
n*c*s*ary. OSHA g^rt^in^** that annual
nedicil »r«mtmHnrL« may not always
be appropriate. Accordingly the
«r«nfiflrfj jj amended to permit the
phytiain to redoce the frequency to not
less f'n«" bt-*naaaily if the physician
believe* it LJ appropriate. Tne physician
may lisa increase the frequency if it is
a*ciciily appropriate-
OSKA EJJ aiao replaced the term
~e*u.oli»h«d exposure limits" with the
"penrattible exposure limits or
. exponre levels" In new
sh 'fy;)fP,fB/ tmet the terms
oees rs«i*Sa*d u prevwuity
The rest of the language in new
paragraph (fl(3) remains as it was
proposed in paragraph (f)(2).
In paragraph (f)(4)(l) of the final rule
OSHA Is using the exact language
proposed in paragraph (f)(3)(i).
In paragraph (f)(4)(U) of the final
OSHA Is using the language of proposed
paragraph (f)(3)(ii) with one change.
OSHA is still requiring that the content
of medical examination and
consultations be determined by the
attending physician. However. OSHA
has added language that would direct
the employee, employer, and physician
to Appendix D for guidelines in
developing the examination.
Several commenters requested
guidance on the content of the medical
examinations required by the proposal.
The Okolona Fire District (10-1)
commented. "As. written the current
document is rather vague." They
continued. ". . . the document should
give guidance on what the physical
examination should entaiL" The
American Association of Occupational
Health Nurses (10-30). suggested. "At
least minimum content of the physical
examination should be specified. An
"exam" may be no more than visual
inspection of an individual's eyes, ears
and throat and have no relevance to the
exposure situation."
Other commenters supported OSHA's
proposal for the employer ""* the
physician to determine examination
protocols. Eastman Kodak (10-38)
commented, "We support OSHA's
position that the physician is beet able
to determine an appropriate medical
surveillance protocol Aa noted by
OSHA, employees may be exposed to
differing substances and may be
required to use differing levels of
personal protective equipment such as
respirators. In view of the particular
circumstances presented, the physician
is in tha best position to formulate and
follow an appropriate medical protocol.
OSHA should not include a detailed
protocol for medicai surveillance."
Lockheed (10-15) responded to OSHA's .
issue on protocols, "No. As with
training, differences in amounts. Hnrf«
and combinations of exposures in
different working situations require that
protocol for medical surveillance be left
to the discretion of the attending
physician."
Dr. fame* Melius testified. Td like to
direct most of my testimony to
discussions of medical surveillance
programs for hazardous waste and
emergency response workers. I'd like to
begin be saying that programs for both
of these sets of workers are extremely
important" (Tr. pg. 107) He goe* on to
My, The medical surveillance program
V
for the workers, therefore, s, |'
with initially assessing their 4. '
work at the site and their capTbiul
conducting that work. It should ind
an assessment that focuses thmuih
medical history and initial pDyijM|
examination on their cardiovȤcyiai
respiratory system, also looking [or
signs of other major medical problts
Selective testing may also be useful
these instance, including pulmonan
function testing, chest x-rays and
electrocardiograms. However, the
workers may differ in their benefits I
this testing depending on their ageer
other risk factors." (Tr. pgs. 110-in]
OSHA believes both sides of the
argument can be addressed by plac:-
recommended criteria for medical
examination protocols in the Appenc
to this section. Some commented hn
suggested protocols that OSHA
considered for placement in the
Appendix. The St Petersburg Fire
Department (10-4) suggested. "A full
physical examination: height weigh1.
eyesight pulse, blood pressure,
respiratory, skin examination.
neurological examination, heart and
lungs, medical history, and any othti
aspects determined by the physician.
Also included are: Pulmonary fu'' v
test chest X-ray, urine anarytv
blood test and hearing examti '
The chapter on medical surveUluct
found in the OSHA/NIOSH/EPA/C-!
Guard manual in Appendix F slso
provides guidance. OSHA also belin
that the language of Appendix F will
provide guidance for developing the
examination protocol
In paragraph (f)(5) of the final rule
OSHA is using the language of
paragraph (f)(4) in the proposal with'
change. OSHA has added a
recommendation that a physician
licensed in occupational medicine be
used to supervise or administer the
examination. Several commenters
suggested that the use of such a
physician would assure a more comp1
occupation-oriented examination IN-
one offered by a physician license^
another field.
Representative of these comment!
was the suggestion of the Am"1^
Association of Occupational Heaiu
Nurses (10-30). The AAOHN (ID-™
stated. "The nature of the potential
exposures in hazardous waste
operations requires specialized
knowledge in toxicology—knowieo
signs and symptoms and effect*^
exposure to various substances—*
common in basic health profew'° *
curricula. This is information wa j
occupational health nurses and /
physicians may have via advan«
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Federal Register / Vol. 54. No. 42 / Monday. March 6. 1989 / Rules and Regulations 9307
education degrees or continuing
education, certification and experience."
The AAOHN recommended that OSHA
change its proposed language to require
the examination to be performed "by a
registered professional nurse or licensed
physician with training and expertise in
evaluating exposures to hazardous
substances."
In recognition of AAOHN's comments.
OSHA has added the recommendation
for the use of a physician from the field
of occupational health. The language of
the final rule, while it does not preclude
the use of occupational nurses, does not
specifically call for the use of an
occupational nurse. The final language
requires that the examination be
conducted under the supervision of a
licensed physician and that would
certainly allow the use of occupational
nurses if the attending physician
permits.
In paragraphs (0(6). (f)(7) and (f](8) of
the final rule OSHA is using the exact
language proposed in paragraphs (f)(5J.
(0(6) and (f)(7)
Paragraph (g)—Engineering controls,
work practices, and personal protective
equipment for employee protection
OSHA is using the same opening , -
paragraph for paragraph (g) that was in
the opening paragraph for paragraph (g)
in the proposal
In paragraph (g)(l)(i) of 'he final rale
OSHA is using the language of
paragraph (g)(l)(i) of the proposal.
In paragraphs (g)(l)fii) and (g)(l)(lif) of
the final rule OSHA is using the exact
language of paragraphs (g)(l)(ii) and
(g)(l)(iii) of the proposal except mat the
reference to Subpart G is deleted A new
paragraph (g)(l)(iv) is added to cross
reference the requirements of Subpart C
for clarity.
In paragraph (g)(2) of the final rule
OSHA is using the language proposed in
paragraph (g)(2) with some editorial
modifications.
In paragraphs (g)(3). (g)(4) and (g)(5) of
the final rule OSHA is using the
language of paragraphs (g)(3), (g)(4) and
(g)(o) in the proposal with minor
editorial corrections to be consistent
with the terms and language of the final
rule.
Paragraph fh)—Monitoring
In paragraph (h](l) of the final rule
OSHA has combined the proposed
language in the opening paragraph and
Paragraph (h)(I) of the proposal with a
clarification. The new paragraphs are
designated (h)(t)(i) and (h](l)(ii).
In paragraph (h)(l)(i). OSHA has
modified its proposed language by
adding the phrase, "where it is not
obvious that an exposure does or does
not exist" OSHA is adding this phrase
to clarify that monitoring is not
necessary where the site environment or
safety precautions taken by the
employer prevent employee exposure to
hazardous levels of chemical exposure.
OSHA is only requiring monitoring
where there may be a question as to an
employee's exposure. When there is a
question then the employer should
monitor. Where there is no question of
exposure, then monitoring is not
necessary. For example, if it is obvious
through site characterization and
analysis that there are no exposures at
the worksite, monitoring need not be
performed unless worksite conditions or
work practices change to the extent that
workers could be potentially exposed to
hazardous concentrations of chemical
exposure. If an employer decides that
employees should wear level B
protection in an area where exposure
will most probably be below the PEL'*,
then during initial entry monitoring will
not be necessary because the employees
are more than adequately protected.
In paragraphs (h)(2) and (h)(3) of the
final rule. OSHA is using the language
proposed in paragraphs (h)(2) end (h)(3)
except for two changes. First OSHA is
adding language to clarify that
monitoring should be used to determine
exposure above permissible exposure
limits which are not immediately
dangerous to life or health. Second.
OSHA is deleting proposed
subparagraph (b)(3)(v) because it is too
general in nature and the previous four
subparagraphs adequately cover the
hazard.
In paragraph (h)(4) OSHA is using the
exact language proposed in paragraph
(h)(4) with one addition. If employees
with the highest exposure are
overexposed, then representative
samples of other employees who may be
overexposed must be taken to determine
if controls or PPE are needed
Paragraph fi)—Informational programs
In paragraph (i) of the final rule
OSHA is using the language of
paragraph (i) of the proposal Minor
editorial changes have been made for
clarity without changing the proposed
requirements. The need for requirements
for informational programs is discussed
at 52 FR 29628 in the preamble to our
proposal There were few substantive
comments. OSHA concludes that these
provisions are necessary as discussed in
the proposal
Paragraph (j}—Handling drums and
containers
In paragraph (J) of the final rule
OSHA is using the language proposed in
paragraph (j). Minor editorial changes
have been made for clarity without
changing the proposed requirements.
The need for requirements for handling
drums and containers is discussed at 52
FR 29629 in the preamble to our
proposal. There were few substantive
comments. OSHA concludes that these
provisions are necessary as discussed in
the proposal
Paragraph (k)— Decontamination
In paragraph (k) of the final rule
OSHA is using the language of
paragraph (k) in the proposal However.
the agency has reorganized the
paragraph and provided headnotes to
make the reading of the paragraph
easier. The need for requirements for
decontamination is discussed at 52 FR
29629 in the preamble to our proposal
There were few substantive comment*.
OSHA concludes that these provisions
are necessary as discussed in the
proposal
Paragraph (1)— Emergency response by
employees at uncontrolled hazardous
waste sites
In paragraph (1)(1) OSHA is using the
exact language from proposed
paragraph OKlKO-
In paragraphs (l)(2)((i) through
(I)(2)(xi) OSHA is using me exact text
from paragraph
In paragraph (1X3) OSHA is using the
language of proposed paragraph
(1)(2)(Q(A) with some modification. The
modifications are considered editorial
and are made because of OSHA's
reorganization of the overall proposed
paragraph (1)- In paragraph p)(3) OSHA
will require that employees perforating
emergency response at uncontrolled
hazardous waste sites be trained in
accordance with paragraph (e) of this
section. This requirement is the same as
proposed in the first part of proposed
paragraph (l)(2)(i)(A). The portion of
proposed paragraph OH^K»KA) chat
addresses training at RCRA sites is
moved to the discussion of training in
paragraph (p) of this rulemakirg
because of OSHA's reorgacizadca of
this paragraph.
The language proposed in paragraph
OXZHiKB) has been moved to paragraph
(eK9) of mis final rule. This move -s
considered editorial since it does aot
change any duties imposed oc ice
employer, it only reflects the
reorganization of proposed pa.-s.jrB.pfc
(I)-
In paragraphs OX*)W taro«$h
OK+M»fi) OSHA is using the CXK*
language from paragraphs (H2)faJ(A)
-------
Register / Vol. 54. No. 42 / Monday. March 6, 1989 / Rule* ead Higuli
ry* paragraph* HMD through
|b»al role use th
In sammary*
role use the language of
pangnphs (1X1) and UK?) of the
propose! witksome modifications due to
the raorgsmiasttion of the emergency
lespmtee tetplisiiiMaH of the proposal.
Paragraph (m^^—IUumination
In paragraph (m) and Table H-12O2 of
the final rule OSHA is using the
language of paragraph (m) and Table H-
102.1 of the proposal with one minor
change. OSHA ha* combined the
language of the opening paragraph and
paragraph (m)(l) of the proposal into
one paragraph designated paragraph
(as.). Minor editorial change* have been
made for clarity without changing the
proposed requirements. OSHA has
combined the language of the opening
paragraph and paragraph (mHl) of the
proposal into one paragraph designated
paragraph (m). The need for
requirements for illumination is
discussed at 52 FR 29831 in the preamble
to our proposal There were few
substantive comments. OSHA f"«;l'"jft
that these previsions are necessary as
riismsted in the proposal
Paragraph (n) — Sanitation at temporary
workplaces
In paragraph (n) of the final rule
OSHA ia using the language of
paragraph (n) in the proposal with some
minor editorial changes. The opening
paragraph of proposed paragraph (n)
has been deleted because it Is not a
requirement and Table H-10&2 ha*
bee* renumbered Table H-1023. Minor
editorial changes have been made for
clarity without ghangtafl the proposed
requirements. The need for requirements
to fllumina Uon is discussed at 52 FR
2S831 m the preamble to our proposal
There weis few substantive comments.
OSHA concludes that these provisions
are necessary as discussed in the
proposal
Paragraph (o}—New technology
programs
In paragraph (o) of the final rule
OSHA is using the language of proposed
paragraph (p). This change is necessary
doe to the recTgudxation of the
emergency response requirements and
the moving of piupusud paragraph (o).
Certain Operations Conducted Under
the Resource Conserratjon and
Recovery Act of 1979 fRCRA). Proposed
paragraph (o) has been moved to
paragraph (p) of the final rule.
In paragraph (oKl) of the final rale
OSHA is using the exact language that
was proposed m paragraph (p)(l).
In paragraph (oI2) of the final rale
OSHA has waw44& language of
paragraph (pX2) with some changes.
OSHA has revised the paragraph to
include some additional examples of
acceptable means of suppression. The
agency has also added additional
information to provide guidance to the
employer in making evaluations of
products and new technologies. These
changes are considered to be editorial
since the requirement of the proposal
has not changed.
Paragraph (p)—Certain operations
conducted under the Resource
Conservation and Recovery Act of 1976
fRCRA)
In paragraph (p) of-the final rule
OSHA is using the language proposed in
paragraph (o) with some change*.
OSHA has revised the opening
paragraph of the proposal to include
large quantity generators of hazardous
waste that store those wastes less than
90 days within the scope of this
paragraph.
In paragraphs (pMl). (pK.2). (PM3). and
(pj(4) of the final rale OSHA has used
the proposed language of paragraphs
(oHl). (oM2). (oMS). and (eM4) with some
minor editorial changes. The proposed
requirements for each individual
paragraph remain the same.
OSHA is adding two new paragraphs.
(p)(5) and (p}(6). to address BOW
technology programs and material
handling programs respectively, m
paragraph
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t VoL 54. No. 42 / Monday. March 6. 1988 / Rules and Regulation*
9308
commeaten mdicated-ihat than was a
need for more tpedflctntntnf criteria
for the course* to ba offend and tfa*
quality of the mstractor*nresenting die
courses. In light of thoeo comments.
OSHA hei added a new paragraph
(p)(8)(ili) that addressee emergency
response training on RCRA TSD
facilities. Tho language that is used in
the final rule was developed from that
suggested in the comments made to the
record of this proceeding.
Basically OSHA is requiring that all
employees who are expected to perform
emergency response at RCRA TSD
facilities be trained in how to safely
perform emergency response duties
prior to being called upon to perform
those duties (See paragraph
(p)(8)(iii)(A).j Examples of the types of
training to be provided have been given.
Exemptions are provided in Exception
=1 and Exception #2 when employee
exposure is reduced through pre-
emergency planning that includes
development of employee awareness of
hflT"T'V OSHA is also requiring that
employees who have attended and
successfully completed the training that
is required in paragraph (p)(8) be
certified as having done so. Employers
would also have to certify the continued
competency of ""pl"y««« on an annwil
basis [See paragraph (p)(8«Ui)(C]].
In paragraph (pHW*) of the final rule
OSHA is addressing ma procedures to
be used for handling emergency
incidents. The language in the final rale
has been taken-from paragraph (1N2)(U)
and the*raquirement8 remain the •»"»•
as proposed.
Paragraph (g}
hazardous substa
Emergency resp
release* not
to
previously covered
In paragraph (q) OSHA is covering
those emergency response situations
that occur at locations other than
uncontrolled hazardous waste sites and
RCRA TSD faculties. The typical site
covered by this paragraph would be a
transportation accident when
hazardous substances an or have the
potential for i«»n«»g jnto the
environment Other sites coveted by this
substance releases at «
manufacturing fa^H""* such as die
release that occurred at the Union
Carbide plants in BuphoL India, and
Institute. VW.
A typical scenario when this
paragraph would be applicable would
be the emergency response to a derailed
tank car containing a hazardous
substance that has begun to leak its
contents into the atmosphere. The
emergency response to this type of
accident would usually include the first
responden (Le~ witnesses, police,
employees on the train), the first
dispatched-responsers (La. the first due
rescue and fin apparatus), any multiple
alarm dispatches (Le^ additional fin
and rescue apparatus. HAZMAT teams.
state fin "«•••''•', Coast Guard or
Federal EJ.A. national response teams).
and the clean-up crew (La, initial
response employees of the site owner
who clean-up the release). Employees of
outside clean-up contractors would be
covered by paragraphs (b) through (p).
As the clean-up scenario proceeds
towards completion, the various
employees on the scene will need
different levels of training and
protective equipment required in this
paragraph.
In paragraph (qj(l) of the final rule
OSHA is using the '•"g"*g* taken from
paragraph (l)(l)(i) with some minor
editorial changes. OSHA wants to
emphasize that employers who will
evacuate their employees from the
workplace when an emergency occurs
and who do not permit any of their
employees to assist in **""tMed ***• »««p
(ICS). Aa • result of other requirements
In this H»*H TlAt, *JM lifMmt ITnrnmand
System should already be established
prior to BB *WB>yjBiHcyT TOA scoiop
official responding to an incident scene
should only need to take charge of die
incident *«H begin to Implement the
preplanned ICS.
In paragraph (qXa)0v) OSHA has
used the proposed language of
paragraph (1K3MUXD) with a change.
The proposed language required all
CffipiOyVfltt UtflSflOQ ID QCBtHflQOCy
response end exposed to hazardous
substances in any way to wear positive
pressun self-contained breathing
apparatus while engaged in emergency
response. The final rule will require only
those employees engaged in emergency
response and exposed to hazardous
substances "presenting an inhalation
hazard or potential inhalation hazard**
' to wear positive pressure self-contained
breathing apparatus. OSHA has made
this change since several comments
suggested that some Individuals engaged
in emergency response may be exposed
to hazardous substances that do not
pose an inhalation hazard and.
therefore, would negate die need for
respiratory protection. Such protection
would become a burden to those
employees engaged in operations not
requiring the use of such equipment
In paragraph (q)(3](vi) of the final rule
OSHA has used the language of
paragraph 0)(3)(U)(F) with die following
change. In the proposal OSHA called for
"qualified basic life support" personnel
to be present at the site. In some
emergency medical service (EMS)
systems die term "basic-life support
(BLS)" Identifies a unique group of
trained individuals who have received
an established level of specialized
training. Typically emergency medical
response begins at the first-responder
level and progresses through basic-first
aid and haste-Ufa support to advanced-
life support (ALS). The amount of
training and expertise increases as-
individuals pi ogress through die system.
A* a result of several comments. OSHA
has decided to reduce die level of
^rSDu&ff s?BQ1Of0u tOf A OUfljDXQOH SSsUld**
by capability at a hazardous waste sites.
Employees trained and qualified In
basic first aid have die basic skills such
•• tttHm jfftimmt mmmtMMHtfiHt,
aiwi possibly cardiopolmonary
resucitation (GPR) to contitil '"I1"1'**
until a Mg"** level nspondar arrives. If
response time for BLS or ALS Is long
enough that it la necessary for this level
of training to be at the site in case of an
cy, this rule does not prohibit
the stationing of mis level at me site.
However. OSHA believes that if BLS or
ALS service is available within a
reasonable **"»«, g, qualified *ffMfc first
aider can provide die necessary interim
care.
The rest of die language in paragraph
(q)(3) contains die language that was
proposed in paragraph (1X3)0*) without
In paragraph (q)(4) of the final rule
OSHA has used die language from
paragraph (1)(3K
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9310 Federal Register / Vol. 54. No. 42 / Monday. March 6. 1989 / Rules and Regulations
with a requirement for annual training
or demonstration of competency in their
area of specialization. The required
minimum hours of training was deleted
because some employees may need
more or may need less than 24 hours for
their area of specialization. Specialized
employees are by definition individuals
specialized in their area of expertise and
should only require whatever level of
training is necessary to maintain their
level of competency. OSHA considers
the other changes made to the language
of this paragraph to be editorial.
In paragraph (q)(6] of the final rule
OSHA addresses the training
requirements for employees who will be
responding to hazardous materials
incidents. In paragraph (q](6) (i). (ii),
(iii), and (iv) OSHA has provided tiered
training criteria for those employees
who may be designated as members of
an emergency response team. The
various levels of response and the
required competency levels are based
upon recognized levels of response
being discussed in the hazardous
materials response industry as
recommended in several of the
comments made during this rulemaking.
To illustrate OSHA's tiered approach
to training, the following scenario
describes a possible emergency
response call
A state trooper is on routine patrol
along a highway passing through a
residential and light industrial area of a
large metropolitan city. Ahead in his
path of travel the trooper notices a
multi-vehicle accident involving a large
overturned tank truck. Immediately the
trooper uses his radio to contact his
dispatcher to report the accident After
letting the dispatcher know the location
and type of accident the trooper places
his vehicle across the travel lanes of the
highway approaching the accident site
to stop traffic. While he is doing this the
dispatcher is alerting the fire and rescue
companies in the immediate area and
dispatching an established number of
fire and rescue vehicles. The trooper
then- surveys the accident scene from his
vehicle trying to identify the type of
cargo on the overturned truck. Seeing
three different U.S. DOT placards on the
vehicle the trooper makes note of the
four digit numbers and checks his DOT
Emergency Response Guide for a
summary of actions to be taken for the
chemicals identified on the placards.
After determining his next on-site
responsibility, he recontacts his
dispatcher with the additional
information and secures the scene. He
stays away from the immediate accident
site and does not become involved in
rescue or site mitigation.
While the trooper has been securing
the scene, the fire and rescue units
dispatched after his first radio call begin
to arrive on the scene with the
additional information from the
trooper's second call. The officer-in-
charge (QIC) of the fire/rescue response
stops his vehicles in a safe location and
contacts the state trooper. After
determining the type of accident and
vehicles involved, the OIC takes control
of the scene and directs his crews to
take a predetermined defensive action
in controlling a leak that has begun on
the tanker. The OIC then contacts the
dispatcher and reports his assessment of
the accident scene including the fact
that the tanker is now leaking. He
requests the dispatcher to send him the
closest hazardous materials response
team. He also asks for representatives
from the shipper of the liquid and the
liquid's manufacturer.
In the meantime, firefighters have
established a perimeter defense of the
accident scene using fire hose lines and
proper personal protective equipment
They begin to evacuate surrounding
homes and businesses as indicated in
the Emergency Response Guide in case
the leaking tanker should explode. They
construct dikes and diversion pits to
contain water and chemical run-off from
the fire hose lines. Rescue personnel.
including emergency medical
technicians, have made a preliminary
assessment of the accident scene and
have determined whether any
individuals in the spill area are trapped •
in their vehicles or need immediate
assistance. They report their
observations to the OIC
A decision is made by the OIC. based
upon the reports of the police officer, the
emergency response crew, and the data
on the DOT placards, that no rescue
attempts can be made safely until such
time as the leaking liquid is positively
identified and controlled by the
HAZMAT team. The proper local
authorities are notified under the
requirements of SARA Title Ifl.
As firefighters continue to provide
defensive protection of the scene and as
emergency medical technicians
establish a triage area for the treatment
of injured passengers, the HAZMAT
team arrives and begins to take control
of the accident scene. Hazardous
materials technicians and specialists
assess the scene and plan their attack
on the leaking tanker.
After equiping themselves properly.
the HAZMAT team makes a final pre-
attack evaluation of the scene, including
a scan of the area with appropriate
monitoring equipment and reports its
findings to the fire and rescue personnel.
Based upon the results of the pre-at^
evaluation and a determination by '
HAZMAT team members using
monitoring equipment that the spill an>a
is non-hazardous, rescue personnel now
enter the area of the accident to provide
emergency medical treatment to injured
passengers and to extricate those
passengers who may have been trapped
in their vehicles. The HAZMAT team
proceeds to the point of release and
secures the leak.
After all the injured have been cared
for and after the leak has been stopped,
the firefighters and HAZMAT team
begin to clean-up the accident scene in
accordance with pre-planned
procedures.
All four levels of hazardous materials
response have played a role in this
scenario. The state trooper, the first on
the scene, is the first responder
awareness level The first responding
fire and rescue companies who provided
the defensive attack are the first
responder operations level The
responding HAZMAT team had both
hazardous materials technicians and
hazardous materials specialists. In this
scenario the state trooper would have to
have a sufficient amount of training, the
first responding fire/rescue companies
would need eight hours of training, and
the HAZMAT team would need 24 hou
of training. The tiered training schedul •
is based upon the duties and
responsibilities of the individuals
involved in the various levels of
response illustrated in the scenario.
In paragraph (q)(7) of the final rule
OSHA is addressing the competency of
the trainers who will be providing the
training necessary for those employees
responding to hazardous materials
incidents. As discussed before, several
commenters were concerned that
OSHA's proposal for the qualifications
of trainers was too weak.
In paragraph (qj(8) of the final rule
OSHA is addressing refresher training
for those employees who have been
trained in accordance with paragraph
(q)(6). In paragraph (l)(3)(i)(A) of the
proposal OSHA addressed the training
of employees who perform emergency
response at non-hazardous waste clean-
up sites. OSHA is using this proposed
language in paragraphs (q)(8)(i) and
(q)(8)(ii) because the language of the
proposal was intended to cover the type
of emergency response now regulated
by paragraph (q).
In paragraph (q)(9) of the final rule
OSHA is using the language of
paragraph (l)(4)(ii) of the proposal witn
some editorial change. The basic
requirement that employees whdare
members of an organized or designate0
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Register / VoL 54. No. 42 / Monday. March 6. 1989 / Rules and Regulations
9:
materials specialists receive • baseline
physical examination in accordance
.with paragraph (!) of this section
ramaina the same aa proposed.
In paragraph (oj(10) of the final rale
OSHA to using the pnpoaed language of
paragraph (WWII).
• to paragraph (qXll) of the final rule
OSHA is using the exact language as
proposed in paragraph (1){5). In
paragraph (1)(5) OSHA regulated post*
emergency dean-up and the language
used in that paragraph has caused some
confusion. Rather than change the basic
requirement OSHA la offering the
following clarification of the intent of
paragraph (qflll):
Post-emergency response can be
performed by two basic groups of
employees: employees of the site, or
employees, from off of the site. Post-
emergency clean-up begins when the
individual in charge of the initial
emergency response declares the site to
be under control and ready for clean-up.
For the purposes of this rule, paragraph
(oj(ll) will apply to those employees
who come from other employers located
off-of-the-aita to perform post-
emergency clean-up. Employees of the
employer at the site where the release
occuued. and who perfunu post-
emergency clean-up, are considered.
under this rale, to be part of the initial
emergency response and not subject to
paragraph (qXll). The reason tor mis
At*Htu'ltr^ |g that employees At *tlg Site
are more familiar with Aa types of
emergencies that may occur and the
types of dean-op operations mat may
have to take place. The more hazardous
exposure to employees occurs when
outside contractors or other off-site
^TipiffyiMff era Drought into a strange
»nirinynni^nt aiyj mtm mnncted tO dean*
up the residue from a release. With this
clarification. OSHA concludes that no
change to the proposed language is
necessary.
HL Summary of thai Preliminary
Regulatory Impact and Regulatory
Flexibility Analysis and Environmental
UttfOOUCtlOtl
Executive Order 12291 (46 FR13197,
February 18.1981) requires that a
regulatory impact analysis be conducted
for any rule having major economic
consequences for the national economy.
individual industries, geographical
regions, or levels of government In
addition, the Regulatory Flexibility Act
of 1380 (Pub. L 90-353. 94 Stat 1164 (S
U.S.C. 601 e* «eo.)) requires the
Occupational Safety and Health
Administration (OSHA) to determine
whether a regulation will have a
significant economic impact on a
substantial number of small entities, and
the National Environmental Policy Act
(NEPA) of 1989 (42 U.S.C. 4321. ft tea.)
requires the agency to assess the
environmental consequences of
regulatory actions.
In order to comply with these
requirements. OSHA has prepared a
Regulatory Impact and Regulatory
Flexibility Analysis (R1A) for the
hazardous waste operations and
emergency response standard. This
analysis includes a profile of the
industries that will be affected, the
estimated number of employees who an
at risk from occupational exposures to
hflxardflus wastes.
feasibility, costs, benefits, and an
overall economic impact of the
standard. The RIA is available in the
OSHA Docket Office.
Data Source*
The primary source* of information
used for this analysis are: an April 1987
report by the Eastern Research Group
(ERG) entitled. -Preparation of Data To
Support a Regulatory Analysis and
Proposed Standard for Working at
Hazardous Waste Sites:* and the
comments supplied in response to the
Notice of Proposed Rnlemaldng, the
comments tt>*"f <*II^IBJ the PHPIM.
hearings, and the
information cental
the
i in the ERG report
Protection Agency sources, industry
sources, experts in the area of
hazardous waste management etc.
Consequently. OSHA believes that it
has given due notice to all responsive
parties and that the data used are the
beat available data far thto final
Regulatory bnpact Analysts (RIA).
Industry Profils
The standard will affect about 2OOOO
uncontrolled hazardous waste sites,
about 4400 hazardous waste operations
conducted under the Resource
Conservation and Recovery Act (RCRA)
of 1978. about 13400 spills of hazardous
materials that occur annually outside a
fixed facility, and about 11400 spills of
hazardous material that occur annually
inside a fixed facility. The firms that will
be affected by this standard an as
follows: about 100 contractors that
perform hazardous waste site clean-ups.
about 50 •n(jin««Hiig gf technical
services firms that perform hazardous
waste preliminary assessments or site
investigations and remedial
investigations or feasibility studies for
hazardous waste site dfanups. about
300 RCRA-regulated commercial
treatment storage and disposal
facilities: about 3.700 RCRA-regnlatec
facilities that are operated by a
hazardous waste generator: about 19.<
state and local police departments:
about 28400 fire departments: about 7
private hazardous materials (HAZMA
response teams: and about 22400
manufactures that use in-houn
personnel to respond to emergency
spills of hazardous materials within th
facility.
Population at Risk
Aa many as U58 million employees
police officers, and firefighters may be
at risk from exposure to k*TM*diKif
waste or to hazardous materials durim
an emergency response to a hazardous
material spiO. Of these employees, abc
14400 if oik at umnHilrvuVd hazardout
waste site deanupa. 52JOO at RCRA-
regulatad farfiw**- JMCHHH m police
officers. M4JOO an firefighters. 7.500
an private HAZMAT members, and
178400 an members of industrial fire
brigades that provide m-pJant
material spills. Most of mesa employee
however, do not work foUtine around
hazardous waata. In fa^ft. wtt * rnm*^
officers wiO not face a hazardous
fif9 flflbvsBsl 41OA aQQOfluIaU OsTV OOflROA
personnel, who an at risk, an anrmafi
'ifaroa
afewaoun.
The standard does not raqcrira the us
of any lare-scale *^*** euiment th
is not currently used BI
operations* In addition,
work
provision
that an currently available. Thus,
OSHA has determmfld that the slam Is:
Bcnofits
This standard wifl protect 1757
health and safety hazards __ ^ .
their exposure to hazardous westee. Tc
to Chapter 3 of the Final Regulatory
Analysis (FRAV The FRA indicates ma
this standard will ptevent 20 cancff
deaths per year and from 0 to 20 death*
per year trom cardiovascaiar.
nemotugiral. renal and tiver disorder*.
The standard will also prevent 1JC5
injuries per year involving 14700 tost
work days. The FRA also estimate* tha
6 fataJttiea that are not illness related
will be presented. This last figure at
likely to be an underestiaaate. mdrvidoa
imrliiffnli which are
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9312 Federal Register / Vol. 54. No. 42 / Monday. March 6, 1989 / Rules and Regulations
Chapter 3 and which may have been
prevented by following the standard
have sometimes led to more than 6
deaths. Also, the FRA does not take into
account the benefits to the surrounding,
non-worker community derived from the
better handing of hazardous waste and
emergency response incidents by the
more qualified, properly trained and
equiped response teams that are likely
to result from compliance with this
standard.
Chapter 3 of the FRA also presents
risk rates. For example, the 17 excess
cancer deaths per 1000 exposed
hazardous waste workers for an
occupational lifetime of exposures is
likely to be reduced by 75 per cent.
OSHA concludes therefore, that this
standard will substantially reduce the
significant risk of material impairment
of health which results from exposure to
hazardous waste either at hazardous
waste operations or from emergency
response.
However, section 126 of SARA gives
OSHA dear statutory directions to issue
this standard and is reasonably explicit
about what type of provisions should be
included. Section 126 is also a free
standing provision and not an
amendment to the OSH Act
Accordingly, it evidences a legislative
intent to issue these regulations without
the specific need to quantify benefits
and reach significant risk conclusions.
Cost of Compliance
OSHA used current work practices as
its baseline for estimating the cost of full
compliance with the standard. This
estimated cost does not include any coat
that is currently being incurred by
employers as part of their work
practices because those work practices.
and therefore those costs, would
continue whether or not the final
standard were promulgated.
OSHA estimated that the total
aanualized incremental cost of full
compliance with the standard will be
about Si53,422 million, of which $27.966
million will be spent by contractors on
government-mandated clean-ups of
uncontrolled hazardous waste sites,
$18-372 million will b« spent by RCRA-
regulated facility cleanups and
operations. S17.332 million will be spent
by police departments, S5Q-553 million
will be spent by fire departments. S422Q
nr-iJcn viiil be spent by private
KAZMAT teams, and S29.179 million
w~.ll be spent by industrial fire brigades.
The prevision with the largest annual
ess: of compliance is the employee
training provision (S'2-978 million),
followed by the medical rurveiUance
prvt-.Sic:! ;'Si 1-233 million), the use of
*s. :.£;•? s-eif-cor. tamed breathing
apparatus (59,507 million), and the
written plan to minimize employee
exposure to hazardous materials during
postemergency cleanups of hazardous
materials spills (S8.381 million).
Economic Impacts
Most of the incremental cost of
compliance will be paid by the
government or the private firm
responsible for the hazardous waste
cleanup. OSHA calculated that It is
economically feasible for every affected
industry or group to comply with the
standard. There may be an impact upon
some labor markets as a consequence of
the provision that only sufficiently
experience employees, or employees
certified to have received the necessary
training at an appropriate training
facility, will be allowed to work on
hazardous waste sites. This provision
will effectively curtail the current
practice of using local subcontractors to
provide short-term employees for
hazardous waste site cleanups and limit
the number of employees eligible to
work at hazardous waste sites. This in
turn, may increase future wage rates
and the cost of hazardous waste site
cleanups.
Regulatory Flexibility Analysis
Pursuant to the Regulatory Flexibility
Act of 1980, the Assistant Secretary has
assessed the expected impacts of the
standard on small entities. Based on the
available information. OSHA
determined that the standard may have
some impact upon some small entities.
' The cost of adequately training an
employee off-site prior to working at a
hazardous waste site cleanup will
substantially reduce the use of
subcontractor labor on a one-time basis.
Thus, some local subcontractors face a
potential reduction in hazardous waste
site cleanup work. The majority of this
subcontracted work will probably be
performed by those subcontractors who
concentrate upon this type of work.
Subcontractors who have performed
cleanup work but who do not elect to
train employees needed to qualify for
future work will probably be excluded
from working in this market
In addition, there could be an
economic impact upon some small local
fire departments depending upon the
amount of financial resources available
to them for additional training. With the
allowance for different amounts of
trailing hours depending upon the
expected extent of involvement with
hazardous materials spills. OSHA
believes that this economic impact will
not significantly affect a substantive
number of local fire departments.
Environmental Impact Assessme^ft
Finding of No Significant Impact"'^'
OSHA reviewed the final standard
and concluded that no significant
environmental impacts are likely to
result from its promulgation. In OSHA'
December 19,1986. interim final rule [0|
the protection of workers engaged In
hazardous waste and emergency
response operations, information was
solicited from the public on various
issues, including possible environment
impacts of the regulation. On thebaw
of the review detailed below, and in
accordance with the requirements of fc
National Environmental Policy Act
(NEPA) of 1969 (42 U.S.C. 4321 et ieq.|
the Council on Environmental Quality
(CEQ) NEPA regulations (40 CFRPart
1500 et seq.), and the Department of
Labor's implementing regulations (or
NEPA compliance (29 CFR Part ll),ii(
Assistant Secretary determined thai il
standard will not have a significant
impact on the external environment
In most OSHA regulatory actions, t»
environments may be affected: (l)Tbi
workplace environment and (2) the
general human environment external
the workplace, including impacts out
and water pollution, solid waste, an"-
energy and land use. The hazardo;
waste standard, however, is unit,
that it focuses on the external /
environment because during these
operations, the workplace and the
external environment are usually on!
and the same. The standard is also
unusual in that it is the first regulate
since the passage of the Occupational
Safety and Health Act of 1970 (the A:
to be mandated specifically by Coop
under section 126 of the Superfund
Amendments and ReauthorizationA-'
(SARA). As indicated in the earlier
sections of this Notice, the provision
section 126 detail those protection!!:
OSHA must include for workers at
hazardous waste and emergency
response operations. For example
section 126 requires that provision)'-
site analysis, training, and mi
surveillance, among others, b
in the standard. In addition, there"
wide range of OSHA, EPA. and oiw.
standards that already applyl
activities that occur at hazardous
sites and during emergency resp<"
operations. For example, there are
existing OSHA standards that co*
construction activities, onsite ffl^
and equipment selection and use'
personal protective equipment,n
of toxic and explosive materials.
general environmental and sa'e'i
such as walking-working surfaci|j
and illumination. Moreover, the
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Federal Register / Vol 54. No. 42 / Monday. March 6. 1989 / Rulei and Regulations
standard. In m«iy instances, tithe
reflect* OSHA regulation*, procedures
adopted by other federal agencies (e*. .
EPA), or practices that are commonly
used by those knowledgeable in
hazardous waste and emergency
response operation*. To the extent mat
existing standards, rules, or standard
operating procedures are Incorporated
Into this rule, no significant change in
the environment la anticipated.
Potential Positive Environmental Effects
While OSHA doe* not anticipate any
significant environmental effect* a* a
result of mi* standard, there la a
potential for some benefldal Impact*. In
general, aa the work practice* and
proceduree requirement* of die atandard
reduce the hi«M»Mt of employee injury.
an indirect result should be a redaction
in the likelihood of environmental
release* of hazardous material*.
(Virtually all praviaion* of the standard
can be categorized in this manner.
because once they are implemented.
they will have a positive <«fl««iCT on
worker safety.) Aa these requirement*
al*o provide guidance fbc routine
reaction* to situation* encountered hi
emergencies, they may help to reduce
the severity of each emergencies.
Additional potentially positive impacts
might be categorized aa follows: (1)
Direct benefits associated widi reduced
tticirtenoss in» or the seventy ox> the
reieaseof hazardous materials, and (2)
indirect benefit* associated with the
increased worker awareness of
hatardoaa material* or with improved
worker preparedness (either for normal
^•sita operations or for unexpected
accident*). The following ^'fnn*""
highlights those provisions with
potentially
effects.
Monitoring (h). The requirements of
this provision will increase the amount
of monitoring for airborne hazardous
substances at uncontrolled hazardous
waate rites. In some cases, hazardous
materials will be detected, and step*
will be taken to more quickly control the
release to the atmosphere, thereby
providing an environmental benefit
Handling drums and container! (j). A
number of specific requirements of thia
paragraph will result in potentially
positive environmental impacts.
Relevant subsections include: Inspecting
drum* end containers: making salvage
drums or absorbents available: initiating
a spill containment pr"g"tn: emptying
nf!§onnd ^"iniff mn*i containers:
requiring ground penetrating redan and
decontaminating equipment These are
discussed briefly in the following
sections.
Inspection of drums/containers before
moving (jMlHiii). This section requires
that drums and containers be inspected
for their integrity prior to handling and
moving. Under current practice* at
hazardous waste cleanup sites, drums
und containers are often handled with
mechanized equipment (e^. a barrel
grapple on a backhoe arm) before being
inspected, if nnnHi**^ drums rupture or
leek, any solid CTn*"*1'"***"^ by the
rupture or leak is removed for disposal
upon completion of drum ti«»iHlfaij
operations. This provision will, through
worker awareness, increase the
probability of averting rupture* and
leakage. In addition, any hazardous
containers that r-*n ***** be
moved without rupturing will have to be
transferred to safe containers (as
required in paragraph (JXlKix)). with
obvious pi
ntaleffe
These procedures will reduce the
volume of CTt>t«mtn«taMi soil requiring
disposal and will also lower me
possibility dial leechete or runoff will
requirement doee not have an impact on
emergency response ections became the
routines outlined are already standard
procedure.
Availability of salvage drum/
absorbents (JXIMvii). This provision
specifies that salvage
containers •* ****? **
of proper absorbent be kept available
for use in anas when spiOs» leaks, or
taMM ^_l_LA A^^B^W *Fi.l« ^AM«^^^^B^M»4
es angnx occur, inis nqmramem -
will result in increased availability of
salvage drums and spiQ absorbents at
in *><|**jaiM-y response ritnatione where
•pilla mrm timtiinanr th«i»tiy i»«liii lnj tttm
•pills of hazardous materials, m mose
instanoas when salvage drums/
absorbents would have been inadequate
without this tequila811**1*! there is a
program (j)(l)(vin). The purpose of thi*
provision is to develop e program to be
iffiplMJjffniffd. fa tfa^ event of a major
spUL that would ^""*"'*» mA isolate
hazardous matenais Deins
into containers and *I'M|>"*^ To *^^ extent
that *t« (ymtajptr rupture and will
provide concomitant environmental
Denefits*
Uu of a ground penetrating lyttet.
estimate depth and location of
container! (JMllfx). At present whec
preliminary investigations at hazard<
waste rites indicate that buried drun
or container* may be present grounc
penetrating systems are frequently u
to determine the depth and location <
the drums. The requirements of mis
provision will very likely cause an
increase m the use of diese system*.
thamhj TttAne^ny ttiq number of
Instances m which buried containers
would go undetected or where
undetected container* would be
accidentally ruptured duri
activities. When it applies, the
twttl help prevent
vat
.•Pi
id spills, improve die
uioroughneee of remedial actions, an
benefit the) sit*) environment
Develop DeoontaminatuarProcedL
(k). Thereuuiiemeut to dean and
decontaminate equipment personnc
•T"1 pfUHMl yf»tff.Hmm mtfntjnnmt >
prevent oia nilgiatton of hazardou*
substances offsto.d«K«by benefittit
of persaaneL Decontamination is
sJready standard practice at most
cleanup rites.
Inform Contractors of existing
Hoards (bXIXtv). Under due provisi
"are, explosion, heahh or odier safer
hazards'* that are present By eiisuiu
that contractors know die location ai
MtOfff OX ltt0 O*KB*0QI* luifl VBOlflfC^Df
win reduce the possibility mat
contractor activities will result in
inadvertent releases or spill* of
hazardous materials.
Gather Informati
Before Site Ea.
Among die various lequiremer
for rite evaluation are loose far
information to be gadwred regarding
(a) padiway* fat hazardous substanr
dispersion, and (b) status and eeaabi
of emergency response tuems These
procedural remiitement* will result a
increased ability to predict and prevt
materials, will mitigate emergency
ritnations quickly and effectively, an-
wul reduce die possibility or severity
rrmtmmmmnt rdea**. A* the
requirement* of the section mirror
current practices, compliance will be
with little difficulty.
Provide rVorker Training (e). The
training nKniirrtr"*"* will assure that
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9314 Federal Register / Vol. 54, No. 42 / Monday, March 6. 1989 / Rules and Regulations
activities will be carried out by qualified
personnel with the knowledge and
ability to fulfill their job function* in a
safe and responsible manner. To the
extent that this occurs, there will be a
potential benefit to the environment (in
emergency-response situations, similar
benefits accrue from emergency
response training and RCRA-regulated
facility employee training.) For example,
worker training will result in a more
careful handling of materials
accompanied by a reduction in the
potential for inadvertent spills, improper
disposal, etc. In emergency situations
this training will assure a more efficient
and effective cleanup of hazardous
materials or a quicker response to avert
further hazardous material releases.
Informational Programs (f). These
provisions include requirements for a
site safety and health plan, pre-entry
briefings, and site inspections. These
requirements will not directly affect the
existing environment; their purpose Is to
provide workers with the information
necessary to carry out their activities
safely. To the extent that this occurs,
there will be a potential benefit to the
environment For example.
implementing comprehensive site plans
will reduce the incidence of accident
releases of hazardous materials.
Similarly, requiring pre-entry briefings
will reduce the likelihood of employees
unknowingly encountering contaminants
or allowing their improper release or
disposal.
Emergency Response Plan (I) and(r).
The development and implementation of
a response plan for on-site and off-site
emergencies will provide for greater
worker preparedness. In emergencies.
workers will be able to respond more
quickly and effectively, thereby
benefitting the environment.
Potentially Negative Impacts
In some situations, there may be a
potential for negative effects on the
environment as a result of the standard.
Any potential negative impacts.
however, are not expected to be
significant To illustrate this, negative
impacts may occur if there is an
increase in the time required to
implement specific cleanup and spill
response activities, or to implement safe
work practices or procedures required
by the standard. Any such effects are
likely to be negligible, however since
response teams already have
established operating procedures similar
to those in OSHA's standard.
Another potential negative impact
may result from the requirement that
salvage drums and absorbents be
readily available. This may increase the
number of repacked hazardous waste
drums and the amount of spent
absorbent used, which could add to the
amount of material that would require
safe disposal Similarly, the
requirements for implementation of
proper decontamination procedures for
all equipment, personal protective gear,
and personnel at hazardous waste
emergencies, cleanup sites, and RCRA
sites may result in an increase in the
frequency and use of decontamination
materials. This, in turn, could generate a
larger volume of spent decontamination
Quids which would then require proper
handling and disposal. Again, any such
impact should be negligible since-
decontamination is largely standard
procedure for most hazardous waste
operations. A possible exception may be
during activities that take place in the
early stages of site evaluation before
cleanup, or at spill response, where
decontamination procedures are not yet
standardized.
Conclusion
To the extent that the work practices
and procedures are implemented,
increased worker awareness and
preparedness will result in a safer and
more healthful work environment, which
may indirectly benefit the environment
Any negative impacts that may occur as
a result of the implementation of these
work practices or procedures are
expected to be negligible. Based on this
assessment and the information
presented earlier in the preamble,
OSHA concludes that no significant
environmental changes are anticipated
as a result of the standard.
IV. International Trade
OSHA has evaluated the potential
impact that this final standard would
have upon international trade. OSHA
has determined that the final standard
would have a minimal potential impact
upon the prices of products, so that
there would be no effective change is
the level of exported or imported
products.
V. OMB Approval Under the Paperwork
Reduction Act
This section contains a collection of
information pertaining to the
preparation of a written safety and
health plan site characterization and
analysis, site control, training, medical
surveillance, emergency controls, work
practices, PPE, monitoring, informational
programs, handling drums and
containers, decontamination, emergency
response planning, and emergency
response drills. OMB has reviewed
these collections and has approved them
under approval number 1216-0139.
VI. Public Reporting Burden
Public reporting burden for the
collection of information identified in
paragraph IV above is estimated to
average 3.7 hours per response,
including the time for reviewing
instruction, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing the collection of information.
Send comments regarding this burden
estimate or any other suggestions for
reducing this burden to the Director,
Directorate of Safety Standards
Programs. OSHA Room N-3605, US.
Department of Labor. Washington, DC
20210; and to the Office of Information
and Regulatory Affairs. Office of
Management and Budget, Washington,
DC 20503.
VII. State Plan States
This federal Register document
amends an interim final rule (section
1910.120. "Hazardous Waste Operation]
and Emergency Response") in Subpartrl
of 29 CFR Part 1910, OSHA's general
industry standards on hazardous
materials. The 25 states with their own
OSHA approved occupational safety
and health plans must develop a
comparable standard applicable to both
the private and public (state and local ,
government employees) sectors withic,
six months of the publication date of ^
this permanent final rule or show OSHA
why there is no need for action, e.g,
because an existing state standard
covering this area is already "at least as
effective" as the new Federal standard.
These states are Alaska. Arizona,
California (for state and local
government employees only),
Connecticut (for state and local
government employees only), Hawaii,
Indiana. Iowa. Kentucky, Maryland,
Michigan, Minnesota. Nevada, New
Mexico, New York (for state and local
government employees only). North
Carolina, Oregon, Puerto Rico, South
Carolina, Tennessee. Utah. Vermont
Virginia, Virgin Islands, Washington,
and Wyoming. After the effective date
of this final rule, until such time as a
state standard is promulgated. Federal
OSHA will provide interim enforcement
assistance, as appropriate, in these
states.
VIII. Federal and State Coverage of the
Public Sector and Volunteers
Federal OSHA is specifically
precluded by section 3(5) of the
Occupational Safety and Health Act
from covering employees of any State or
political subdivision thereof. However.
States that elect to have their owrt
occupational safety and health program
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