UNJTED STATES£NVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DEC . 3 1990
OFFCEOF
SOLID WASTE AND EMERGENCY RESPONSE
OSWER Directive // 9833.3A-1
MEMORANDUM
SUBJECT: Final Guidance on Administrative Records for Selecting
CERCLA Response Actions
FROM:- Don R, Clay
Assistant AdmTnis
TO: Regional Administrators, Regions I-X
This memorandum transmits to you our "Final Guidance on
Administrative Records for Selecting CERCLA Response Actions."
This document replaces the "Interim Guidance on Administrative
Records for Selection of CERCLA Response Actions," previously
issued on Marsh. 1, 1989.
The guidance sets forth the policy and procedures governing
the compilation and establishment of administrative records for
selecting response actions under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA), as
amended by the Superfund Amendments and Reauthorization Act of
1986 (SARA). This guidance is also consistent with and expands
on Subpart I of the National Oil and Hazardous Substances
Pollution Contingency Plan, 55 Fed. Reg. 8859 (March 8, 1990).
This «pai«Mstea reflects input received from the Regions,
Headquarters &a<3 the Department of Justice. There have been
several drafts of this guidance and comments have been
incorporated. I thank you for your assistance.
Attachment
cc: Diree%«92r, Waste Management Division,
Ite^iQftS I, IV, V, and VII
Director, Emergency and Remedial Response Division,
Region XI
Director, «&iardous Waste Management Division,
Regions III, VI, VIII, and IX
Director, K&iardous Waste Division, Region X
Director, I&virorraental Services Division,
Regies I, VI, and VII
Regional fe^sel, Regions I-X
Record Coordinators, Regions I-X
-------
OSWER Directive No. 9833.3A-1
FINAL GUIDANCE ON ADMINISTRATIVE RECORDS
FOR
SELECTING CERCLA RESPONSE ACTIONS
U.S. Environmental Protection Agency
Office of "Selid Waste and Emergency Response
Washington, D.C. 20460
-------
TABLE OF CONTENTS
I. INTRODUCTION 1
A. Purpose and Scope of the Administrative Record ... l
B. Judicial Review 3
C. Public Participation 4
II. PROCEDURES FOR ESTABLISHING THE ADMINISTRATIVE RECORD . . 4
A. Administrative Record Coordinator 4
B. Multiple Response Actions 6
C. Compilation 6
D. Index 7
E. Location 8
1. General 8
2. Special Documents 9
F. Public Availability 12
1. General 12
2. Remedial Actions 13
3. Removal Action 14
G. Maintaining the Record 17
H. Confidential File 19
I. Copying 20
J. Micrographics 21
K. Certification 22
III.CONTENTS OF THE ADMINISTRATIVE RECORD 22
A. Remedial Actions 22
B. Removal Actions 26
C. Imminent and Substantial Endangerment 29
D. Public Comments 30
E. Enforcement Actions 31
1. Negotiation Documents 31
2. PRP-Lead RI/FS 32
3. Administrative Orders and Consent Decrees ... 32
F. Excluded Documents 33
G. Draft Documents and Internal Memoranda 33
-------
H. Privileged Documents 34
I. Guidance Documents . 37
J. Technical Literature 38
K. Legal Sources 39
L. NPL Rulemaking Docket Information 39
M. RCRA Documents 39
N. Post-Decision Information ..... 40
IV. INVOLVEMENT OF OTHER PARTIES 42
A. States 42
1. State Involvement in Federal-Lead Sites .... 42
2. Federal Involvement in State-Lead Sites .... 43
B. Federal Facilities 44
C. ATSDR * . . . 45
D. Natural Resources Trustees 45
V. DISCLAIMER 46
VI. FURTHER INFORMATION 46
GLOSSARY 47
APPENDICES
Appendix-A. Sections 113(j)-(k) of CERCLA 50
Appendix B. Model File Structure 52
Appendix C. Model Index 56
Appendix D. Model Position Description for Administrative
Record Coordinator 57
Appendix E. Compendium of Response Selection Guidance ... 59
Appendix F. Model Transmittal Cover Letter 85
Appendix G. Model Document Transmittal Acknowledgement . . 86
Appendix H. Model Fact Sheet 87
Appendix I. Model Notice of Public Availability 88
Appendix J. Microform Approval Memorandum 89
Appendix K. Model Certification .... 90
Appendix L. Preamble to Subpart I of NCP 91
Appendix M. Subpart I of the NCP 101
-------
OSWER Directive No-. 9833.3A-1
I. INTRODUCTION
A. Purpose and Scope of the Administrative Record
This guidance addresses the establishment of administrative
records under Section 113 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA), as
amended by the Superfund Amendments and Reauthorization Act of
1986 (SARA).1 Section 113(k)(l) of CERCLA requires the
establishment of. administrative records upon which the President
shall base the selection of a response action (see Appendix A for
the complete statutory language).
Chapter I of this guidance introduces the purpose and scope
of the administrative record. Chapter II reviews procedures for
compiling and maintaining the administrative record. Chapter III
examines the various types of documents which should be included
in the administrative record. Chapter IV discusses how agencies
outside EPA are involved in establishing the record. Finally,
this guidance includes a glossary of frequently used terms and
acronyms as well as several appendices.
Although, this guidance is written for use by the United
States Environmental Protection Agency (EPA), it can be adapted
for use by state and federal agencies required to establish
administrative records for the selection of CERCLA response
actions. As used in this guidance the term "lead agency" means
either EPA, a state or other federal agency, which is responsible
for compiling and maintaining the administrative record. As used
in this guidance, the term "support agency" means the agency or
agencies which furnish necessary data to the lead agency, reviews
response data and documents and provides other assistance as
requested by the OSC or RPM. This guidance reflects the
revisions to the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP) published on March 8, 1990, 55 Fed. Reg.
8859 (see Appendices L and M).
The administrative record established under Section 113(k)
of CERCLA serves two primary purposes. First, the record
contains those documents which form the basis for selection of a
response action and under Section 113 (j), judicial review of any
issue concerning the adequacy of any response action is limited
to the record. Second, Section 113(k) requires that the
administrative record act as a vehicle for public participation
1 42 U.S.C. §9613. References made to CERCLA throughout
this memorandum should be interpreted as meaning "CERCLA, as
amended by SARA."
-------
OSWER Directive No. 9833.3A-1
in selecting a response action. This guidance document discusses
procedures developed to ensure that the lead agency's
administrative records meet these twin purposes.
The administrative record is the body of documents that
"forms the basis" for the selection of a particular response at a
site. This does not mean that documents which only support a
response decision are placed in the administrative record.
Documents which are included are relevant documents that were
relied upon in selecting the response action, as well as relevant
documents that were considered but ultimately rejected (e.g.,
documents "considered or relied on") .
This document uses the phrase "considered or railed on" in
discussing which documents should be included in the
administrative record to indicate that it is EPA's general policy
to be inclusive for placing documents in the administrative
record. However/ this term does not mean that drafts or internal
documents are normally included in the administrative record.
Lead or support agency draft or internal memoranda are generally
not included in the administrative record/ except in specific
circumstances (see section III.G. at page 33). Thus/ the record
will include final documents generated by the lead and support
agency/ as well as technical and site-specific information.
Information or comments submitted by the public or potentially
responsible parties (PRPs) during a public comment period (even
if the lead agency does not agree with the information or
comments) are also included in the administrative record (see
section III.D. at page 30).
The following principles should be applied in establishing
administrative records:
o The record should be compiled as documents relating to the
selection of the response action are generated or received
by the lead agency;
o The record should include documents that form the basis for
the decision, whether or not they support the response
selection; and
o The record should be a contemporaneous explanation of the
basis] for the selection of a response action.
The effort to establish adequate administrative records
encompasses a vast array of people including: Administrate
Record Coordinators, Remedial Project Managers (RPMs), On-Scene
Coordinators (OSCs), enforcement staff, records management staff,
Regional Counsel staff, Community Relations Coordinators (CRCs),
other federal agencies, states, CERCLA contractors, arid the
-------
OSWER Directive No. 9833.3A-1
public.2 This guidance will discuss the roles and
responsibilities of these people and how they interact with one
another.
B. Judicial Review
Section 113(j)(l) of CERCLA provides that judicial review of
any issues concerning the adequacy of any response action shall
be limited to the administrative record.
Judicial review based on an administrative record provides
numerous benefits. Under Section 113(j) of CERCLA and general
principles of administrative law, when the trial court reviews
the response action selected, the court is limited to reviewing
the documents in the administrative record. As a result, facts
or arguments related to the response action that challenging
parties present for the first time in court will not be
considered.
Record review saves time by limiting the scope of trials,
thereby saving the lead agency's resources for cleanup rather
than litigation. -Courts will not allow a party challenging a-J
decision to use discovery, hearings, or additional fact finding
to look beyond the lead agency's administrative record, except in
very limited circumstances. In particular, courts generally will
not—permirfe persons -challenging -a-response-decision--to-depose-,-—-——
examine, or cross-examine EPA, state or other federal agency
decisionmakers, staff, or contractors concerning the selection of
the response action.
Furthermore, the administrative record may be cited long
after officials responsible for the response decisions have moved
into different positions or have left the lead or support agency.
Judicial review limited to the record saves time involved in
locating former employees who may not remember the facts and
circumstances underlying decisions made at a much earlier time.
Moreover, in ruling on challenges to the response action
decision, the court will apply the highly deferential "arbitrary
and capricious" standard of review set forth in Section 113(j) (2)
of CERCLA. Under this standard, a court does not substitute its
judgment for that of the decisionmaker. The reviewing court does
not act as an independent decisionmaker, but rather acts as a
reviewing body whose limited task is to check for arbitrary and
capricious action. Thus, the court will only overturn the
response selection decision if it can be shown on the
2 As used hereinafter in this guidance the term "public"
includes potentially responsible parties (PRPs).
-------
OSWER Directive No. 9833.3A-1
administrative record, that the decision was arbitrary and
capricious or otherwise not in accordance with the law. However,
the extent to which EPA benefits from having judicial review
limited to the record depends on the quality and completeness of
each record.
C. Publir cicipation
Section 113(k)(2) of CERCLA requires that the public have
the opportunity to participate in developing the administrative
record for response selection. Section 117 of CERCLA also
includes provisions for public participation in the remedial
action selection process. Both sections reflect a statutory
emphasis on public participation. Participation by interested
persons will ensure that the lead agency has considered the
concerns of the public, including PRPs, during the response
selection process. In addition, for purposes of administrative
and judicial review, the record will contain documents that
reflect the participation of the public and the lead agency's
consideration of the public's concerns.
If the lead agency does not provide an opportunity for
involvement of interested parties in the development of the
administrative record, persons challenging a response action may
argue that judicial review should not be limited to the record.
The lead agency must, therefore, make the information considered
or relied on in selecting a response action available to the
public, provide an appropriate opportunity for public comment on
this information, place comments and information received from
the public in the record, and reflect in the record the lead
agency's consideration of this information.
II.f PROCEDURES FOR ESTABLISHING THE ADMINISTRATIVE RECORD
A. Administrative Record Coordinator
Each region should have an Administrative Record
Coordinator. The Record Coordinator generally has the duty of
ensuring that the administrative record files are compiled and
maintained according to Subpart I of the NCP and this guidance/
3 42 U.S.C. §9617.
4 The "administrative record file" should be distinguished
from the "administrative record." The administrative record file
refers to the documents as they are being compiled. Until a
response action decision has been selected, there is no complete
administrative record for that decision. Thus, to avoid creating
the impression that the record is complete at any time prior to
-------
OSWER Directive No.. 9833.3A-1
The Record Coordinator will not be responsible for deciding which'
documents are included in a record file. Those decisions should
be made by the OSC or RPM, with appropriate consultation of ORC
staff. The Record Coordinator's duties ordinarily include:
o Developing procedures for creating record files;
o Ensuring that the public is notified that the record files
are available for inspection;
o Ensuring that the records are available at or near the site;
o Ensuring that the records are available at the regional
office or other central location;
o Coordinating efforts to obtain the necessary documents;
o Indexing the record files;
o Updating the record files and indices on a regular basis
(e.g., quarterly);
o Ensuring availability of the record file for copying;
o Ensuring that sampling and testing data, quality control and
quality assurance documentation, and chain of custody forms
are available for public inspection, possibly at a location
other than that of the record files;
o Coordinating with ORC staff on questions of relevance and
confidentiality of documents submitted for the record files;
o Arranging for production and presentation of the record to
court when necessary for judicial review;
o Maintaining the confidential portion of the record files, if
necessary;
o Maintaining the "Compendium of CERCLA Response Selection
Guidance Documents";
o Coordinating with states and federal agencies on record
files compiled by them; and
the final selection decision, the set of documents is referred to
as the administrative record file rather than the administrative
record.
-------
OSWER Directive No. 9833.3A-1
o Notifying appropriate personnel of the timing for review of
state and federal record files.
Appendix D contains a model position description for an
Administrative Record Coordinator.
The Record Coordinator must work closely with RPMs, OSCs,
enforcement staff, records management staff, Regional Counsel
staff, community relations staff, and the Department of Justice
(DOJ) (for cases in litigation).
If the way the record was compiled and maintained is
questioned in litigation, the Record Coordinator may be called
upon to prepare an affidavit or testify about those procedures.
Therefore, the Record Coordinator should be familiar with the
procedures associated with the record, and be qualified to
fulfill the responsibilities outlined above.
B. Multiple Response Actions
In general, every decision document (e.g., Record of
Decision (ROD) or Action Memorandum) must be supported by an "
administrative record. Under CERCLA, cleanups are often broken
up into distinct response actions. At a given site this may
include several removal actions, and/or remedial actions known as
operable units. For every removal action or operable unit, a
separate administrative record must be compiled.
Information relevant to more than one response decision,
such as a site inspection report or a preliminary assessment
report may be placed in the record file for an initial response
action and incorporated by reference in the indexes of subsequent
record files for that site.
C. Compilation
The administrative record file should be compiled as
relevant documents on the response action are generated or
received. Thus, all documents which are clearly relevant and
non-privileged should be placed in the record file, entered into
the index, and made available to the public as soon as possible.
For exavple, the remedial investigation/feasibility study (RI/FS)
work plan, summaries of quality assured data, the RI/FS released
for public comment, the proposed plan, and any public comments
received on the RI/FS and proposed plan should be placed in the
record file as soon as they are generated or received.
When there are questions whether particular documents should
be included in the record file, such documents can be segregated
and reviewed at regular intervals (e.g., quarterly). For
6
-------
OSWER Directive No.- 9833.3A-1
example, draft documents or documents subject to claims of
privilege should be set aside for review by ORC and other
appropriate staff. At critical times, such as prior to the
public comment period, the issues regarding these documents
should be completely resolved and the documents included in the
record file, if appropriate.
The record file should be updated while it is available for
public inspection. The additional documents should be placed in
the record file and entered in the index. Any updates to the
record file should be made to all copies of the record file.
All documents considered or relied on in selecting the
response action should be in the record file when a decision
document (e.g., a record of decision) is signed. Documents
relevant to the response selection but generated or received
after the decision document is signed should be placed^in a post-
decision document file and may be added to the administrative
record file in certain circumstances (see section III.N. at page
40) .
D. Index
Each administrative record file must be indexed. The index
plays a key role in enabling both lead agency staff and members
of the public to help locate and retrieve documents included in
the record file. In addition, the index can be used for public
information purposes or identifying documents located elsewhere,
such as those included in the compendium of guidance documents
(see Appendix E). The index also serves as an overview of the
history of the response action at the site.
The index also provides the lead agency with a degree of
control over documents located at or near the site. The creation
of an index will prevent persons from altering the record simply
by physically adding or removing documents from the record file.
The index should include the following information for each
document:
o DocuMnt Number;
o DocuMnt Date - date on the document;
o Document Title - one or two line identification. Identify
the actual document, not a transmittal memo or other less
relevant document. Include sufficient information so the
document cannot be confused with another (e.g., the title
"report" may be insufficient);
-------
OSWER Directive No. 9833.3A-1
o Author - Name and affiliation;
o Recipient - Name and affiliation; and
o Document Location.
The index can be organized either by subject or in
chronological order. If documents are customarily grouped
together, as with sampling data and chain of custody documents,
they may be listed as a group in the index to the administrative
record file. Appendix C contains a model index organized by
subject. Computer databases have been helpful in generating and
updating the index.
The index should be updated when the record file is updated.
It is preferable to update the record file when documents are
received, or at least quarterly. Such updates should coincide
with the periodic updating of the record file and review of
material for which there are questions about relevance or
privilege (see section II.C. at page 6). The index .iould also
be updated before any public comment period commence-. The index
should be labeled "draft index" until all relevant documents are
placed in the record file. When the decision document is signed,
the draft index should be updated and labeled "index.11
E. Location
E.I. General
Section 113(k)(l) of CERCLA requires that the administrative
record be available to the public "at or near the facility at
issue." Duplicates of the record file may be kept at any other
location. A copy of the record file must be located at the
regional office or other central location. Both copies of the
record file should be available for public inspection at
reasonable times (e.g., 9-4, Monday-Friday). In the case of an
emergency removal, unless requested, the record file needs to be
available for public inspection only at the central location (see
section II.F.3. at page 14).
The record file located at or near the site should be placed
in one of th« information repositories which may already exist
for community relations purposes. These are typically located in
a library, town hall, or other publicly accessible place. If
there is no existing information repository, or if the repository
5 See 40 C.F.R. §300.805.
6 40 C.F.R. §§300.805(a)(5) and (b) .
8
-------
OSWER Directive No.. 9833.3A-1
does riot have sufficient space for the record file, any other
publicly accessible place may be chosen to house the record
file. When a Superfund site is located at or near an Indian
reservation, the centrally located copy of the record file may be
located at the Indian tribal headquarters. The Community
Relations Coordinator (CRC) should be consulted on the location
of the information repository and record file.
The record file should be transmitted to the local
repository in coordination with the CRC. The CRC should make the
initial contact to establish the local repository and request
housing for the record file. The Record Coordinator should make
arrangements for delivering the record file to the local
repository.
The record file should include an introductory cover letter
addressed to the librarian or repository manager (see Appendix
F) . In addition, a transmittal acknowledgement form should be
included to ensure receipt of the record file (see Appendix G).
Finally, an administrative record fact sheet should accompany the
record to answer questions from the public (see Appendix H).
Updates to the record file should be handled in a similar fashion
(see section II.C. at page 6).
In addition to the publicly available record file, if
feasible, a master copy of the record file should be kept at the
regional office or other central location of the lead agency. To
preserve the integrity of the master copy of the record file, it
should not be accessible to the public. If not feasible to
establish a master copy, the lead agency will need to establish
an effective security system for the publicly available record
file. The master copy of the record file may be maintained in
microform to conserve storage space (see section II.J. at page
21).
E.2. Special Documents
Certain documents which are included in the record file do
not have to be maintained at or near the site or, in some cases,
at the regional office or other central location, because of the
nature of the documents and the burden associated with
maintaining such documents in multiple locations. These
documents, however, must be incorporated in the record file by
reference (e.g., in the index but not physically in the record
7 If the site is located at a federal facility which
requires security clearance, the administrative record file for
that site must be located where security clearance is not
required. The public must have free access to the record file.
-------
OSWER Directive No. 9833.3A-1
file), and the index roust indicate where the documents are
publicly accessible. Where a document is listed in the index but
not located at or near the site, the lead agency must, upon
request, include the document in the record file at or near the
site.8 This applies to verified sampling data, chain of custody
forms, and guidance and policy documents. It does not apply to
documents in the confidential file.
Unless requested, the following types of documents do not
have to be located in multiple locations:
Verified Sampling Data9
Verified sampling data do not have to be located in either
administrative record file. The sampling data may be left in its
original storage location (e.g., Environmental Services Division
(ESD) or contract laboratory). Data summary sheets, however,
must be located in the record file. The index must list the data
summary sheets, reference the underlying verified sampling data,
and indicate where the sampling data can be found.
Chain of Custody Forms10
As with verified sampling data, chain of custody forms do
not have to be located in either administrative record file. The
chain of custody forms may be left in the original storage
location. The index must reference the chain of custody forms
and indicate their location.
8 40 C.F.R. §300.805(b).
9 40 C.F.R. §300.805(a)(1). "Verified sampling data" are data
that have undergone the quality assurance and quality control
process. "Invalidated sampling data" have been incorrectly
gathered or analyzed and will not be part of the record file.
"Unvalidated sampling data" are data which has not yet undergone
the quality assurance and quality control process. Because it is
superseded by verified data, the unvalidated data are not generally
part of th« record files. However, such data may in some cases be
relied on in selecting a response action, such as an emergency
removal where there is no time for verification. Unvalidated
sampling data which are relied on in selecting a response action
should be included in the record file.
10 40 C.F.R. §300.805(a) (1) .
10
-------
OSWER Directive No.- 9833.3A-1
Confidantial and Privileged Documents11
When a confidential or privileged document is included in
the record file, it should be kept in a confidential portion of
the record file. The confidential file should be kept in a
locked cabinet at the regional office or other central location.
It should not be located at or near the site. The index should
identify the title and location of the document, and describe why
the lead agency considers it confidential or privileged.
Furthermore, the lead agency should summarize or redact the
document to make available, to the extent feasible, factual
information (especially if such information is not found
elsewhere in the record file and is not otherwise available to
the public) . This summary or redaction should be performed as
soon as possible after the determination that a document is
privileged or confidential, and inserted in the portion of the
record file available to the public and included in the index.
See also section III.H. at page 34.
Guidance and Policy Documents
Guidance and policy documents that are not site specific are
available in a compendium located in the regional office.
("Compendium of CERCLA Response Selection Guidance Documents,"
Office of Waste Programs Enforcement, May 1989.) This eliminates
the need for reproducing copies of frequently used documents for
each site record file. The documents in the compendium need not
be physically included in the record file, but the guidance and
policy documents considered or relied on in selecting the
response action must be listed in the record file index along
with their location and availability. See also section III.I. at
page 37 and Appendix E.
Technical Literature13
Publicly available technical literature that was not
generated for the site at issue (e.g., an engineering textbook),
does not have to be located in the regional office or other
central location or at or near the site. The document must be
clearly referenced in the index. However, technical literature
not publicly available must be physically included in the record
file at the regional office or other central location and at or
near the site. See also section III.J. at page 38.
11 40 C.F.R. §300.805(a) (4) .
12 40 C.F.R. §300.805(a) (2) .
13 40 C.F.R. §300.805(a) (3) .
11
-------
OSWER Directive No. 9833.3A-1
F. Public Availability
F.I. General
Section 113(k) of CERCLA specifies that the administrative
record "shall be available to the public." In satisfying this
provision, the lead agency must comply with all relevant public
participation procedures outlined in Sections 113(k) and 117 of
CERCLA. The NCP (see Appendices L and M) contains additional
requirements on public availability (see also "Community
Relations in Superfund: A Handbook," October 1988 - OSWER
Directive No. 9230.0-3A; "Community Relations During Enforcement
Activities," November 3, 1988 - OSWER Directive No. 9836.0-1A).
The availability of the record file will vary depending upon
the nature of the response action. Different procedures are
outlined below for remedial and removal response actions.
In all cases, the lead agency should publish a notice of
availability of the record file when the record file is first
made available for public inspection in the vicinity of the site
at issue.14 The notice should explain the purpose of the record
file, its location and availability, and how the public may
participate in its development.
The notice should be published in a major local newspaper of
general circulation. The newspaper notices should be distributed
to persons on the community relations mailing list. These
notices should also be sent to all known PRPs if they are not
already included on the community relations mailing list. As
PRPs are discovered, the lead agency should add their names to
the community relations mailing list and mail them all the
notices sent to the other PRPs. Publication of the notice should
be coordinated with the community relations staff. A copy of the
notice of availability and list of recipients should be included
in the record file. Appendix I contains a model notice of
availability.
This public notice may be combined with other notices for
the same site, such as a notice of availability of the community
relation* information repository, if they occur at the same time.
In addition to the required newspaper notice, the public can be
informed of the availability of the record file through existing
mechanisms (e.g., general and special notice letters, Section
104(e) information requests, and the community relations mailing
list). In addition, Headquarters will publish notices in the
14 See 40 C.F.R. §300.815(a) and §§300.820(a)(1) and (b)
12
-------
OSWER Directive No. 9833.3A-1
Federal Register. They "will be published quarterly and will list
sites where remedial activity is planned.
F.2. Remedial Actions
The administrative record file for a remedial action must be
available for public inspection when the remedial investigation
begins.15 For example, when the remedial investigation/
feasibility study (RI/FS) work plan is approved, the lead agency
must place documents relevant to the selection of the remedy
generated up to that point in the record file. Documents
generally available at that time include the preliminary
assessment (PA), the site investigation (SI), the RI work plan,
inspection reports, sampling data, and the community relations
plan. The lead agency must continue to add documents to the
record file periodically after they are generated or received
during the RI/FS process.
The record file must be publicly available both at a
regional office or other central location and at or near the site
(see section II.E. at page 8).16 In addition, the notice of -
availability should be sent to persons on the community relations
mailing list, including all known PRPs.
With the completion of the RI/FS, the lead agency should
undertake the following public participation procedures:
o Prepare a proposed plan which briefly analyzes the remedial
alternatives evaluated in the detailed analysis of the RI/FS
and proposes a preferred remedial action alternative;
o Make the RI/FS report and proposed plan available in the
record files both at a regional office or other central
* location and at or near the site;
o Publish in a major local newspaper of general circulation a
notice of availability and brief analysis of the RI/FS
report and proposed plan. The notice should include the
dates for submission of public comments;
o Mail th« notice or copy of the notice to all PRPs on the
coiMunity relations mailing list;
o Provide a formal comment period of not less than 30 calendar
days for submission of comments on the proposed plan. Upon
15 40 C.F.R. §300.815(a) .
16 40 C.F.R. §300.805(a) .
13
-------
OSWER Directive No. 9833.3A-1
timely request the lead agency will extend the public
comment period by a minimum of 30 additional days.17 [Note:
The lead agency is encouraged to consider and respond to
significant comments that were submitted before the public
comment period. Considering early comments provides
practical benefits both substantively and procedurally.
Early comments may provide important information for the
selection decision, and early consideration provides the
public (and, particularly, PRPs) with additional informal
opportunities for participating in the decisionmaking
process.];
o Provide the opportunity for a public meeting(s) in the
affected area during the public comment period on the RI/FS
and proposed plan;
o Keep a transcript of the public meeting(s) on the RI/FS and
proposed plan held during the comment period and include a
copy of the transcript in the record file;
o Prepare a discussion (to accompany or be part of the
decision document) of any significant changes to the
proposed plan which occurred after the proposed plan was
made available for public comment which are reflected in the
ROD;
o Prepare a response to each of the significant comments
submitted during the public comment period to accompany the
ROD (see section III.D. at page 30); and
o Publish in a major local newspaper of general circulation a
notice of the availability of the ROD and make the ROD
available to the public before beginning any remedial
action, as required under Section 117(b) of CERCLA.
Comments received after signing the ROD should be placed in
a post-decision document file and may be added to the record file
in certain situations (see section III.N. at page 40).
F.3. Removal Actions
Section 113(k)(2)(A) of CERCLA requires that the EPA
establish procedures for the appropriate participation of
interested persons in the development of the administrative
record for the selection of a removal action. "Appropriate"
participation depends on the nature of the removal, as outlined
below.
17 40 C.F.R. |300.430(f)(3)(i)(C).
14
-------
OSWER Directive No. 9833.3A-1
Time-critical Removal Actions
A time-critical removal action is a removal action for
which, based on the site evaluation, the lead agency determines
that a period of less than six months exists before on-site
removal activities must be initiated. This category includes
emergency removal actions which are described in greater detail
below.
The administrative record file for these actions must be
available for public inspection no later than 60 days after the
initiation of on-site removal activity. Where possible, the
record file should be made available earlier. The record file
must be available both at the regional office or other central
location and at or near the site at issue.
If, however, on-site cleanup activity is initiated within
hours of the verification of a release or threat of a release and
on-site cleanup activities cease within 30 days (emergency
actions), the record file need only be available at the regional
office or other central location, unless it is requested that a
copy of the record file be placed at or near the site.18
For all time-critical removals, a notice of the availability
of the record file must be published in a major local newspaper
and a copy of the notice included in the record file. This
notice should be published no later than 60 days after initiation
of on-site removal activity.
A public comment period of not less than 30 days should be
held in appropriate situations. In general, a public comment
period will be considered appropriate if cleanup activity has not
been completed at the time the record file is made available to
the public and if public comments might have an impact on future
action at the site. If a public comment period is considered
appropriate, it should begin at the time the record file is made
available for public inspection. Note, however, that even if an
action is completed before the record file is available, the
record fil« should be made available to the public. The notice
for the public comment period may be combined with the notice of
availability of the record file if they occur at the same time.
The notic* should be mailed to all PRPs on the community
18 40 C.F.R. §300.805(b) .
19 40 C.F.R. §300.415(m)(2)(i).
20
40 C.F.R. §300.415(m)(2)(ii).
15
-------
OSWER Directive No. 9833.3A-1
relations mailing list. The notice should also be sent to all
known PRPs if they are not already on the community relations
mailing list.
The lead agency must respond to all significant comments
received during the public comment period and place the comments
and the responses to them in the record file (see section III.D.
at page 30). Whether or not the lead agency holds a public
comment period, comments received by the lead agency before the
decision document is signed and related to the selection of the
removal action must be placed in the record file. For
information, including comments, generated or received after the
decision document is signed, see section III.N. at page 40.
Non-Time-Critical Removal Actions
A non-time-critical removal action is a removal action for
which, based on the site evaluation, the lead agency determines
that a planning period of at least six months exists before on-
site removal activities must be initiated.
The administrative record file for a non-time-critical .,
removal action must be made available for public inspection when
the engineering evaluation/cost analysis (EE/CA) is made
available for public comment. The record file must be
available at the regional office or other central location and at
or near the site. A notice of the availability of the record
file must be published in a major local newspaper and a copy of
the notice included in the record file. The notice should be
published in a major local newspaper of general circulation. In
addition, Headquarters will publish these notices in the Federal
Register. They will be published quarterly and will list sites
where non-time critical removal activity is planned. The
newspaper notice should be distributed to persons on the
community relations mailing list and placed in the record file.
These notices should also be sent to all known PRPs if they are
not already on the community relations mailing list. As PRPs are
discovered, the lead agency should add their names to the
community relations mailing list and mail them all the notices
sent to the other PRPs. Publication of the notice should be
coordinated with the community relations staff. A copy of the
notice of availability should be included in the record file.
Appendix Z contains a model notice of availability.
21 40 C.F.R. §300.415(m) (2) (iii).
22 40 C.F.R. §300.415(m) (4) .
16
-------
OSWER Directive No. 9833.3A-1
A public comment period on the EE/CA of not less than 30
days must be held so that interested persons may submit comments
on the response selection for the record file. Upon timely
notice, the lead agency will extend the public comment period by
a minimum of 15 days.2 A notice of the public comment period
may be combined with the notice of availability of the record
file if they occur at the same time. The lead agency must
respond to all significant comments received during the public
comment period and place the comments and the responses to them
in the record file (see section III.D. at page 30) ,24
The lead agency is encouraged to consider and respond to
significant comments that were submitted before the public
comment period. Considering early comments provides practical
benefits both substantively and procedurally. Early comments may
provide important information for the selection decision, and
early consideration provides the public (and, particularly, PRPs)
with additional informal opportunities for participating in the
decision making process.
Comments generated or received after the decision document
is signed should be kept in a post-decision document file. They
may be added to the record file in certain situations (see
section IPI.N. at page 40).
G. Maintaining the Record ,
Document room procedures should be established to ensure
orderly public access to the record files. In establishing
public access procedures, the security and integrity of the
record files must be maintained at all times.
Each regional office or other central location should have a
reading area where visitors are able to review the record files.
The record file must be available during reasonable hours (e.g.,
9-4, Monday-Friday). The public reading area should include,
wherever feasible:
o Administrative record files;
o Guidance Compendium (see section III.I. at page 37);
o Acc«»a to a copier; and
o Sign-in book.
23
40 C.F.R. |300.415(m)(4)(iii).
24 40 C.F.R. S300.415(m) (4) (iv)
17
-------
OSWER Directive No, 9833.3A-1
Controlled access to the files is accomplished by use of a
visitor sign-in book. Sign-in books help minimize instances in
which documents are lost or damaged. They also provide
documentation of the lead agency's efforts to provide public
access to the record files. Pertinent information recorded in
the book should include:
o Date of visit;
o Name;
o Affiliation;
o Address;
o Phone number;
o Site documents viewed; and
o Cost of copied materials (if applicable).
The lead agency may choose not to use sign-in books if the
books deter the public from reviewing the record files.
Since documents in the record file should be complete,
properly organized and legible, the integrity of the record file
must be maintained. If possible, storage and reading areas
should be supervised to maintain proper security. Documents
should not leave the document room or be left unattended. To the
extent feasible, the Administrative Record Coordinator should
check the order of the documents after being viewed by the public
to be certain all documents have been returned intact. The
documents in the record file should be kept secure, either in a
locked room or in locked cabinets.
The record file located at or near the site should be
handled with similar care. If possible, the record file should
be treated as a non-circulating reference; it should not leave
the local repository except under supervision. The phone number
of a record file contact should be provided to record file users
and to the manager of the local repository so that problems can
be identified and resolved. This information can be included in
an informational fact sheet accompanying the record file (see
Appendix H). In addition, the Record Coordinator should plan
periodic reviews of the local record files.
Where the site is a fund-lead or PRP-lead, EPA should retain
(in addition to the publicly available record file) a master copy
of the record file at the regional office or other central
18
-------
OSWER Directive No.. 9833.3A-1
location, if feasible. Where a state or other federal agency is
the lead agency at a site, EPA should assure that the state or
other federal agency maintains (in addition to the publicly
available record file) a master copy of the record file. The
record files are permanent records that must be retained.
As to the local repository, the statute and regulations are
silent concerning the duration of public availability of the
record file. The lead agency's primary concern is public
participation in development of the administrative record.
Following initiation of the response action, public interest in
background information other than the Record of Decision or RI/FS
may wane. In any event, the statutory provisions for judicial
review and deadlines for filing cost recovery actions provide
useful references for keeping the record file publicly available.
See Sections 113(g) and (h) of CERCLA.
Where there is ongoing (or possible) litigation, the record
file in the regional or other central location should be
available at least until the litigation is over.
The record file continues to serve as a historical record of
the response selection, even after the statute of limitations for
cost recovery action has passed. Where there is considerable
public interest, the local repository may wish to keep the record
file-available for public viewing. --- -
H. Confidential File
In certain situations, documents in the record file may be
subject to an applicable privilege (see section III.H. at page
34). To the extent feasible, information relevant to the
response selection which is contained in a privileged document
should be summarized or redacted as to make the document
disclosable and then included in the publicly accessible portion
^of the record file. The privileged document should be included
in a confidential portion of the record file.25
The Administrative Record Coordinator should maintain a
confidential portion of the record file for privileged documents.
These documents should be listed in the index to the entire
record file and identified as "privileged." The index should
identify the title and location of the privileged document, and
describe the basis for the asserted privilege.
The confidential portion of the record file should be stored
in locked files at the regional office or other central location
25 See 40 C.F.R. §300.810(d).
19
-------
OSWER Directive No. 9833.3A-1
and should not be located at or near the site. The confidential
portion of the record file should be separate from the publicly
available record file to protect against inadvertent disclosure.
Each privileged document should be stamped "confidential" at the
bottom of each page of the document. Where the material is not a
written document (such as a computer disk or cassette tape) the
jacket should be stamped "confidential." A complete list of all
materials contained in the confidential portion of the record
file should be maintained by the Record Coordinator. The Record
Coordinator should also maintain a log which will, include the
time, date, document name, and will identify persons checking out
and returning materials to the confidential file.
As soon as a new record file is established, a routine
access list for the confidential, file should be prepared for each
record file. When EPA is the lead agency, this routine access
list must be approved by the Waste Management Division Director
or the Environmental Services Division Director, and ORC. Once
approval is given, persons on the list will be able to access the
confidential files through the Record Coordinator. No one should
have access to the confidential files other than those identified
on the routine access list. For state or other federal agency-
lead sites, the Regions should take steps to insure that state or
other federal agencies develop routine confidential file access
list procedures.
This policy and procedure for privileged materials does not
supersede any policy and procedures established under the Freedom
of Information Act (FOIA), 5 U.S.C. §552, and EPA regulations
implementing FOIA at 40 C.F.R. Part 2. Upon receipt of requests
for the administrative record file pursuant to FOIA, if the
requester is in close proximity to the record file, the lead
agency may respond to FOIA requests by telling a requester the
location and availability of the record file. Decisions
regarding disclosures of materials under FOIA should be
coordinated among the various lead agency officials with access
to such materials.
I. Copying
Section 117(d) of CERCLA requires that each document
developed, received, published, or made available to the public
under Section 117 be made available for public inspection and
copying at or near the site. Under Section 113(k)(2)(B) of
CERCLA, these documents must also be included in the
administrative record file. Under these provisions of CERCLA,
the lead agency must ensure that documents in the record file are
available for copying, but does not bear responsibility for
copying the documents themselves. Therefore, it is preferable
20
-------
OSWER Directive No.. 9833.3A-1
that the record file should be located in a facility which
contains a copying machine (e.g., a public library).
When the administrative record file is available at a
facility at or near the site and copying facilities are available
there, the lead agency may encourage the requester to make use of
the copying facilities at that location. If copying of the
record file located at or near the site is difficult for a
requesting party, the lead agency may arrange for copying on
behalf of a requester at the regional or other central location.
The lead agency may ask that requesters arrange for copying by
contractors or commercial copy centers who then bill the
requester directly.
The lead agency should follow the FOIA regulations at 40
C.F.R. Part 2, in determining the appropriate charge for copying.
Copying fees should be waived for other federal agencies, EPA
contractors or grantees, and members of Congress. The EPA
currently charges $.20 a page for paper copies as provided in 40
C.F.R. Part 2. Reproduction of photographs, microfilms or
magnetic tapes, and computer printouts should be charged at the.
actual cost to the lead agency.
J. Micrographics
The lead agency may make the administrative record file
available to the public in microform.26 Use of micrographics can
significantly reduce the space required to store administrative
record files. In addition, micrographics can simplify the tasks
of reproducing copies of the record file and transmission of the
record files to the local repositories. Any use of micrographics
should be conducted in an orderly manner consistent with records
management procedures. If using micrographics to maintain the
record files, the lead agency must provide a micrographic reader
at the regional office or other central location to ensure public
access to the record file. If a record file is located at or
near the site and micrographics are used, the lead agency must
ensure that a micrographic reader at that location is available.
Microform copies of original documents are admissable in
court if created in an organized fashion. The Business Records
as Evidence Act (28 U.S.C. §1732) specifies that copies of
records, which are made "in the regular course of business" and
copied by any process which accurately reproduces the original,
are "as admissible in evidence as the original itself." See also
Federal Rules of Evidence 1003. Since the NCP provides for use
of microform, microform copies of administrative record documents
26 See 40 C.F.R. §300.805(c).
21
-------
OSWER Directive No. 9833.3A-1
that are produced in the regular course of business are likely to
be admissible in court.
The Office of Information Resources Management (OIRM) has
granted approval for the use of micrographics in establishing
administrative records (see Appendix J). Any use of
micrographics should still comply with the remaining provisions
of Chapter 6 of the EPA Records Management Manual (7/13/84).
K. Certification
A certification as to the completeness of the administrative
record must be performed when the record is filed in court.
Appendix K contains a model court certification.
When EPA is the lead agency such certification should be
signed by the Regional Administrator's designee, after
consultation with ORC. Any certification of the record should be
made by program staff and not legal staff. The region may also
choose to have the Administrative Record Coordinator certify that
the record was compiled and maintained in accordance with
applicable agency regulations and guidance. Such certification
would attest that the record was compiled in accordance with
current agency procedures and would not address the completeness
of the record file.
If a state or other federal agency is the lead agency that
agency must certify that the record was compiled and maintained
in accordance with applicable EPA regulations and guidance.
After the state or federal agency provides this certification,
the Regional Administrator's designee should certify as to the
completeness of the record, as provided in Appendix K.
III. CONTENTS OF THE ADMINISTRATIVE RECORD
A. Remedial Actions
The administrative record for selection of a remedial action
should consist of:
o documents which were considered or relied on to select the
remedial action; and
o documents which demonstrate the public's opportunity to
participate in and comment on the selection of the remedial
action.
27 See 40 C.F.R. §§300.810 and 300.815.
22
-------
OSWER Directive No. 9833.3A-1
Below is a list of documents that are usually generated when
a remedial response .action is selected. These documents should
be included in the administrative record file if they are
generated and considered or relied on in selecting the remedial
response action. Documents that demonstrate the public's
opportunity to participate in and comment on selecting the
remedial response action should also be included in the record
file. Documents not listed below, but meeting the above
criteria, should be included.
Factual Information/Data
o Preliminary Assessment (PA) report;
o Site Investigation (SI) report;
o Remedial Investigation/Feasibility Study (RI/FS) work plan;
o Amendments to the final work plan;
o Sampling and Analysis Plan (SAP): consisting of a quality
assurance project plan (QAPP) and a field sampling plan;
o Sampling data: verified data during the RI/FS, or any data
collected for previous actions such as RCRA or removal
actions which are considered or relied on in selecting the
remedial action. Unvalidated data should be included only
if relied on in the absence of validated data (see note 9 at
page 10);
o Chain of custody forms;
o Inspection reports;
o Data summary sheets;
o Technical studies performed for the site (e.g., a ground-
water study);
o Risk •valuation/endangennent assessment and underlying
documentation (see section III.C. at page 29);
o Fact sheet or summary information regarding remedial action
alternatives generated if special notice letters are issued
to PRPs at an early stage of the RI/FS (see "Interim
Guidance on Notice Letters, Negotiations, and Information
Exchange," October 19, 1987 - OSWER Directive No. 9834.1);
o RI/FS (as available for public comment and as final, if
different); and
23
-------
OSWER Directive No. 9833.3A-1
o Data submitted by the public, including PRPs.
Policy and Guidance
o Memoranda on site-specific or issue-specific policy
decisions. Examples include memoranda on off-site disposal
availability, special coordination needs (e.g., dioxin),
applicable or relevant and appropriate requirements (ARARs)
(to the extent not in the RI/FS), cost effectiveness and
utilization of permanent solutions and alternative treatment
technologies;
o Guidance documents (see section III.I. at page 37); and
o Technical literature (see section III.J. at page 38).
Public Participation (Include the documents that show the public
was notified of site activity and had an opportunity to
participate in and comment on the selection of response action)
o Community relations plan;
o Newspaper articles showing general community awareness;
o Proposed plan;
o Documents sent to persons on the community relations mailing
list and associated date when such document was sent;
o Public notices: any public notices concerning response
action selection such as notices of availability of
information, notices of meetings and notices of
opportunities to comment;
o The community relations mailing list (including all known
PRPs) ;28
o Documentation of informal public meetings: information
generated or received during meetings with the public and
28 Individual names and addresses of members of the general
public which are on the community relations mailing list should
not be included in the public record file. Disclosure of such
information may result in a Privacy Act violation (see also section
III.H. at page 34) or inhibit the general public from requesting
information about the site. The lead agency should then place
individual names and addresses in the confidential portion of the
record file.
24
-------
OSWER Directive No. 9833.3A-1
memoranda or notes summarizing significant information
submitted during such meetings;
o Public comments: complete text of all written comments
submitted (see also section III.D. at page 30);
o Transcripts of formal public meetings: including meetings
held during the public comment period on the RI/FS, proposed
plan, and any waiver of ARARs under Section 121(d)(4) of
CERCLA;
o Responses to significant comments: responses to significant
comments received from the public concerning the selection
of a remedial action; and
o Responses to comments from the state and other federal
agencies.
Enforcement Documents (Include if the document contains
information that was considered or relied on in selecting the
response selection or shows that the public had an opportunity to
participate in and comment on the selection of response action.
Do not include enforcement documents solely pertaining to
liability)
o "" Administrative orders; ~- -— --
o Consent decrees;
o Affidavits containing relevant factual information not
contained elsewhere in the record file;
o Notice letters to PRPs;
o Responses to notice letters;
o Section 104(e) information request letters and Section
122(e) subpoenas; and
o Responses to Section 104(e) information request letters and
Section 122(e) subpoenas.
Other Information
o Index (see section II.D. at page 7);
o Documentation of state involvement: documentation of the
request and response on ARARs, Section 121(f)(l)(G) notices
and responses, a statement of the state's position on the
proposed plan (concurrence, nonconcurrence, or no comment at
25
-------
OSWER Directive No. 9833.3A-1
the time of publication), opportunity to concur in the
selected remedy and be a party to a settlement (see section
IV.A. at page 42);
o health assessments, health studies, and public health
advisories issued by the Agency for Toxic Substances and
Disease Registry (ATSDR)(see section IV.C. at page 45); and
o Natural Resource Trustee notices and responses, findings of
fact, final reports and natural resource damage assessments
(see section IV.D. at page 45)
Decision Documents
o Record of decision (ROD): remedial action decision document
(including responsiveness summary);
o Explanations of significant differences (under Section
117(c)) and underlying information; and
o Amended ROD and underlying information.
The administrative record serves as an overview of the
history of the site and should be understandable to the reader.
Appendix B provides a model file structure for organizing the
record file. Appendix C contains a model index.
B. Removal Actions
The administrative record for selection of a removal action
should consist of:
o documents which were considered or relied on to select the
removal action; and
o documents which demonstrate the public's opportunity to
participate in and comment on the selection of the removal
action, when appropriate.
Below is a list of documents that are usually generated when
a removal response action is selected. These documents should be
included in the administrative record file if they are generated
and considered or relied on when selecting the removal action.
Documents that demonstrate the public's opportunity to
participate in and comment on the removal response action should
also be included in the record file. Documents not listed below,
but meeting the above criteria, should be included.
29 See 40 C.F.R. §§300.810 and 300.820.
26
-------
OSWER Directive No. 9833.3A-1
Factual Information/Data
o Preliminary assessment (PA) report;
o Site evaluation (SI) report;
o EE/CA (for a non-time-critical removal action);
o Sampling plan;
o Sampling data: verified data obtained for the removal
action, or any data collected for previous actions such as
RCRA or other response actions which are considered or
relied on in selecting the removal action. Unvalidated data
should be included only if relied on in the absence of
validated data (see note 9 at page 10) ;
o Chain of custody forms;
o Inspection reports;
o Technical studies performed for the site (e.g., a ground
water study);
o Risk evaluation/endangerment assessment and underlying
documentation; and
o Data submitted by the public, including PRPs.
Policy and Guidance
o Memoranda on site-specific or issue-specific policy
decisions. Examples include memoranda on off-site disposal
availability, compliance with other environmental statutes,
special coordination needs (e.g., dioxin);
o Guidance documents (see section III.I. at page 37); and
o Technical literature (see section III.J. at page 38).
Public Participation (Include the documents that show the public
was notified of site activity and had an opportunity to
participate in the response selection.)
o Community relations plan;
o Newspaper articles showing general community awareness;
o Documents sent to persons on the community relations mailing
list and associated date when such documents was sent;
27
-------
OSWER Directive No. 9833.3A-1
o Public notices: any public notices concerning response
action selection such as notices of availability of
information, notices of meetings, and notices of
opportunities to comment;
o The community relations mailing list (including all known
PRPs) ;30
o Documentation of public meetings: information generated or
submitted during meetings with the public (including PRPs)
and memoranda or notes summarizing significant information
submitted during such meetings;
o Public comments: complete text of all written comments
submitted (see section III.D. at page 30);
o Responses to significant comments: responses to significant
comments received from the public concerning the selection
of a removal action; and
o Responses to comments from states and other federal ~
agencies.
Enforcement Documents (Include if the document contains
information that was considered or relied on in selecting the
response selection or shows that the public had an opportunity to
participate in and comment on the selection of response action.
Do not include enforcement documents solely pertaining to
liability)
o Administrative orders;
o Consent decrees;
o Affidavits containing relevant factual information not
contained elsewhere in the record file;
o Notice letters to PRPs;
30 Individual names and addresses of members of the general
public which are on the community relations mailing list should
not be included in the public record file. Disclosure of such
information may result in a Privacy Act violation (see also section
III.H. at page 34) or inhibit the general public from requesting
information about the site. The lead agency should then place
individual names and addresses in the confidential portion of the
record file.
28
-------
OSWER Directive No. 9833.3A-1
o Responses to notice letters;
o Section 104(e) information request letters and Section
. 122(e) subpoenas; and
o Responses to Section 104(e) information request letters arid
Section 122(e) subpoenas.
Other Information
o Index (see section II.D. at page 7);
o Documentation of state involvement (see section IV.A. at
page 42}; '
o ATSDR health assessments, health studies, and public health
advisories (see section IV.C. at page 45); and
o Natural Resource Trustee notices and responses, findings of
fact, final reports and natural resource damage assessments
(see IV.D. at page 45).
Decision Documents
o EE/CA Approval Memorandum;
o Action Memorandum;
o Amended Action Memorandum; and
o Other documents which embody the decision for selection of a
removal action.
The administrative record serves as an overview of the
history of the site and should be understandable to the reader.
Appendix B provides a model file structure for organizing the
record file. Appendix C contains a model index.
C. Imminent and Substantial Endangerment
Und«r Section 106 of CERCLA, the EPA may find the existence
of an ianiiMnt and substantial endangerment to the public health
or welfare or the environment because of an actual or threatened
release of a hazardous substance.
Determining the existence of an imminent and substantial
endangerment is an important component in selecting the response
action. Therefore, all documents considered or relied on in
making that determination, including any risk assessment, and its
supporting documentation, must be included in the administrative
29
-------
OSWER Directive No. 9833.3A-1
record file.31 If there is proper documentation of the
determination of an imminent and substantial endangerment in the
record file, judicial review of that determination in an action
under Section 106 of CERCLA should be limited to the
administrative record.
D. Public Comments
The administrative record file should document the public's
opportunity to be involved in selecting a response action. This
can be accomplished by including in the record file all documents
related to the opportunity to participate (e.g., notices and fact
sheets), and relevant written comments and information submitted
by the public (e.g., reports and data).
Public requests for information (e.g., Freedom of
Information Act (FOIA) requests for copies of reports), need not
be included in the record file.
The lead agency should request that substantive oral
comments (either in person or over the phone) be put in writing
by the commenter and submitted to the record file. The commenter
should be advised that the obligation to reduce the comment to
writing rests with the commenter. The lead agency, however, may
reduce it to writing where the lead agency will want to rely on
the comment.
The lead agency may respond to comments received prior to a
public comment period in various ways, depending on the nature
and relevance of a particular comment. The lead agency's
consideration of such a comment may be in the form of a written
response, or reflected by documented actions taken after
receiving the comment, or even by changes in subsequent versions
of documents. If the lead agency prepares a written response to
a comment, the comment and response should be included in the
record file.
The lead agency may notify commenters that comments
submitted prior to a formal public comment period must be
resubmitted or specifically identified during the public comment
period in order to receive formal response by the lead agency.
Alternatively, the lead agency may notify a commenter that the
lead agency will respond to the comment in a responsiveness
summary prepared at a later date. The lead agency, however, has
31 See "Guidance on Preparing Superfund Decision Documents:
The Proposed Plan, The Record of Decision, Explanation of
Significant Differences, ROD Amendment,11 OSWER Directive No.
9355.3-02, June 1989.
30
-------
OSWER Directive No. 9833.3A-1
no duty to respond to any comments received before the formal
public comment period, or to respond to comments during the
public comment period until the close of the public comment
period.
The lead agency, however, is encouraged to consider, respond
to and include in the record file significant comments that were
submitted before the public comment period. Considering early
comments provides practical benefits both substantively and
procedurally. Early comments may provide important information
for the selection decision, and early consideration provides the
public (and, particularly, PRP's) with additional informal
opportunities for participating in the decision making process.32
All comments received by the lead agency during the formal
public comment period are to be included in the record file in
their original form, or if not feasible, an explanation should be
placed in the record file explaining why such comments were not
included. Comments received during the formal public comment
period must be addressed in the responsiveness summary (included
with the ROD In remedial response actions). The responses may be
combined by subject or other category in the record file.
Comments which are received after the formal comment period
closes and before the decision document is signed should be
included in the record file but labeled "late comment." Such
comments should be handled as post-decision information (see
section III.N. at page 40).
Comments received after the decision document is signed
should be placed in a post-decision document file. They may be
added to the record file in limited circumstances (see section
III.N. at page 40).
E. Enforcement Actions
The same procedures should be used for establishing an
administrative record whether or not a response action is
selected in the context of an enforcement action. The following
additional information, however, may assist the lead agency where
there is •nforcement activity.
E.I. Negotiation Documents
During negotiations with the lead agency, a potentially
responsible party (PRP) may produce documents and claim that they
32 See 40 C.F.R. §§300.815(b), 300.825(a)(2) and (b)(2).
/
31
-------
OSWER Directive No. 9833;3A-1
constitute confidential business information (CBI) or offers of
settlement subject to Rule 408 of the Federal Rules of Evidence.
Generally, those documents are not part of the
administrative record for response selection unless they are
submitted by PRPs for consideration in selecting a response
action and are considered or relied on in selecting the response
action. A privileged document which was considered or relied on
in selecting the response action should be placed in the
confidential portion of the record file. Such a document should
be summarized and the summary included in the publicly accessible
portion of the record file (see section II.H. at page 19). If
the information cannot be summarized in a disclosable manner, the
information should be placed in the confidential portion of the
record file only and listed in the index to the file.
E.2. PRP-Lead RI/FS
Where a PRP is conducting the RI/FS, the PRP must submit all
technical information on selection of the remedial action
generated during the RI/FS to the lead agency. Technical
information includes work plans, sampling data, reports, and ^
memoranda. The lead agency, and not the PRP, will establish and
maintain the administrative record file (see "Interim Guidance on
Potentially Responsible Party Participation in Remedial
Investigations and Feasibility Studies," May 16, 1988, OSWER
Directive No. 9835.la and "Model Administrative Order on Consent
for Remedial Investigation and Feasibility Study," January 30,
1990, OSWER Directive No. 9835.10.)
PRPs may be delegated responsibility for some record file
maintenance activities, such as housing the files at or near the
site. PRPs cannot, however, be responsible for decisions on what
documents comprise the record file, because of, among other
things, the potential for a conflict of interest.
E.3. Administrative Orders and Consent Decrees
Final administrative orders and consent decrees issued prior
to selection of the response action (e.g., ordering a PRP to
conduct the RI/FS), should be included in the administrative
record file. Administrative orders or consent decrees issued
after the signing of the ROD or the action memorandum should not
be included in the record file, unless the consent decree or
administrative order meets the criteria for the inclusion of
post-decision documents in the record file (see section III.N. at
page 40) . Drafts of administrative orders and consent decrees
should not be included in the record file, unless the drafts
contain factual information that was considered or relied on and
is not found elsewhere in the record file.
32
-------
OSWER Directive No. 9833.3A-1
The issues relating to administrative records for
administrative orders and de minimis settlements are not
addressed by this guidance.
F. Excluded Documents
Certain documents should not be included in the
administrative record file because they are irrelevant to the
selection of the response action. Documents should be excluded
from the record file if they were not considered or relied on in
selecting the response action.
Material beyond the scope of the record file should be kept
in separate files maintained at the regional office or other
central location. These files need not be made publicly
available, although many of the documents in the files may be
available to the public if requested under FOIA.
Examples of documents that are irrelevant to the decision on
selecting a response action may include Hazard Ranking System
(MRS) scoring packages, contractor work assignments, cost
documentation (as opposed to cost effectiveness information), and
National Priorities List (NPL) deletion information. If,
howeverj"these documents contain information that is considered
or relied on in the response action selection and is not
contained elsewhere in the record file, then the documents should
be included in the record file.
Information regarding PRP liability is generally not
included in the record file for selection of the response action
except to the extent such information (typically substance
specific) is considered or relied on in selecting the response
action. Documents relating to PRP liability, however, should be
compiled and maintained in the regional office or other central
location so that they are available at the time of notice to PRPs
or referral of any litigation.
G. Draft Documents and Internal Memoranda
In general, only final documents should be included in the
administrative record file. The record file should not include
preliminary documents such as drafts and internal memoranda.
Such docuaants are excluded from the record file because drafts
and internal memoranda are often revised or superseded by
subsequent drafts and memoranda prior to the selection of the
response action. The preliminary documents are, therefore, not
considered or relied on in making the response action decision.
Drafts (or portions of them) and internal memoranda should
be included, however, in three instances. First, if a draft
33
-------
OSWER Directive No, 9833.3A-1
document or internal memorandum is the basis for a response
decision the draft document or internal memorandum should be
placed in the record file. This may occur if the draft contains
factual information which was relied on but is not included in a
final document, a final document does not exist, or a final
document did not exist when the response decision was made.
Second, if a draft document or internal memorandum is
circulated by the lead agency to other persons (e.g., the support
agency, PRPs or the general public) who then submit comments
which the decisionmaker considers or relies on when making a
response action decision, relevant portions of the draft document
or the memorandum and comments on that document should be
included in the record file.
Third, if a draft document or internal memorandum explains
or conveys decisions on the procedures for selecting the remedy
or the substantive aspects of a proposed or selected remedy
(e.g., the scope of a site investigation or the identification of
potential ARARs), the document should be placed in the record
file, even though the document was signed by a person other than
the Regional Administrator and generated long before the decision
document was signed.
Examples of internal memoranda and staff notes which should
not be included in the record file are documents that express
tentative opinions or internal documents that evaluate
alternative viewpoints. Recommendations of staff to other staff
or management should also not be included in the record file,
except for those staff recommendations which ultimately embody a
final decision relevant to response selection. Drafts and
internal memoranda may also be subject to claims of privilege
(see section III.H., below).
H. Privileged Documents
Some documents in the administrative record file may be
protected JLrom public disclosure on the basis of an applicable
privilege. Any documents which are considered or relied on in
a response action selection, but withheld from the public portion
of the record file based on privilege, must be placed in a
confidential portion of the record file (see section II.H. at
page 19).
If a document is excluded from the public portion of the
record file based on privilege, the relevant information should,
to the extent feasible, be extracted and included in the public
33 See 40 C.F.R. §300.810(c).
34
-------
OSWER Directive No.. 9833.3A-1
record file. This can often be accomplished by deleting or
redacting the privileged information from the document.
The privileges discussed below may be asserted with respect
to documents that are considered or relied on in the selection of
a response action. The head of the office responsible for
developing the document in question should assert the privilege.
In all cases, the official asserting a privilege should consult
with ORC.
Public disclosure of a privileged document may result in
waiver of the privilege, although the nature and extent of the
waiver will depend on the privilege asserted and the
circumstances of the disclosure. If the privilege is waived and
the document becomes a public document, it must be disclosed to
any requester. In light of the potential for waiver, it is
important that personnel not release potentially privileged
documents to any party without consulting with ORC.
Deliberative Process
The deliberative process privilege applies to pre-
decisional, deliberative communications that express opinions,
advice, and recommendations of staff to other staff or
management. The privilege functions to encourage the honest and
free expression of opinion, suggestions and ideas among those
formulating policy for government agencies (see "Guidance for
Assertion of Deliberative Process Privilege," 10/3/84).
In general, if a document contains factual information
forming the basis for the selection of the response action, the
factual portion should be included in the record file.
Use of the deliberative process privilege should be balanced
with the statutory mandate of including the public in the
response action selection process. The privilege should be
asserted if disclosure of the document will have an inhibiting
effect on frank and open discussion among government staff and
decisionmakers. Documents should not be withheld solely because
they would reveal flaws in the case or information embarrassing
to the government. Specific procedures exist for assertion of
the deliberative process privilege, which include consulting with
ORC.
Confidential Business Information (CBI)
The EPA must withhold from the public record trade secrets
and commercial and financial information that is subject to
protection under 40 C.F.R. Part 2. However, Section 104(e)(7) of
CERCLA greatly restricts the assertions of confidentiality claims
35
-------
OSWER Directive No. 9833.3A-1
by PRPs at CERCLA sites. The decisionmaker should attempt to
avoid using CBI in making response action decisions and can do so
in most cases by using other information instead. Where the
decisionmaker must use CBI in making its decision, 40 C.F.R. Part
2 and Section 104(e)(7) of CERCLA will apply and such information
should be placed in the confidential portion of the
administrative record file.
Attorney Work Product
This'exclusion applies to documents prepared in anticipation
of possible litigation. The work product privilege covers all
documents prepared by an attorney or under an attorney's
supervision, including reports prepared by a consultant or
program employee. Litigation need not have commenced but it must
be reasonably contemplated. These documents generally relate to
enforcement or defensibility of a decision and are not considered
or relied on in selecting a response action. These documents
should not, therefore, be in the administrative record file.
Attorney-Client Communication
The attorney-client privilege applies to confidential
communications made in connection with securing or rendering
legal advice. The privilege is limited to communications where
there was an intention to keep the information confidential.
Personal Privacy
This exemption covers information about individuals in
personnel, medical, and similar files, the disclosure of which
would constitute a clearly unwarranted invasion of personal
privacy. The records must pertain to an individual, and not a
business, to be excluded from the public portion of the
administrative record file under this exemption. Often,
information subject to the protection under the personal privacy
privilege can be redacted from the document and the redacted
version can be placed in the public portion of the record file.
State Secrets
The lead agency is authorized to exclude from public
scrutiny information which, if released, would harm national
security or interfere with the government's ability to conduct
foreign relations. This privilege could be particularly
important where the PRP is a federal agency or a contractor for a
federal agency. In the case of a federal facility cleanup, an
34 See 40 C.F.R. §300.810(d).
36
-------
OSWER Directive No. 9833.3A-1
Inter-Agency Agreement should spell out procedures for asserting
this privilege.
Confidential Informant
Statements obtained from witnesses who have been granted
confidentiality may be privileged.
Information Exempted by Other Statutes
Information specifically exempted from disclosure by a
federal statute need not be part of the public record. The
statute in question must leave no discretion as to the
requirement that matters be withheld from the public, or it must
establish particular criteria for withholding or refer to
particular types of matters to be withheld.
I. Guidance Documents
Guidance documents, or portions of guidance documents, that
are considered or relied on in selecting a response action should
be included in the administrative record file for that response-
action. Any guidance documents generated to address issues that
specifically arise at the site for which the record file is being
compiled should be physically included in the record file.
Certain guidance documents, however, do not have to be kept in
the record file. Guidance documents not generated for the
particular site for which the record is being compiled may be
kept in a compendium of guidance documents maintained at the
regional office or other central location.
Each Region should maintain a compendium of guidance
documents which are frequently used in selecting response
actions. As with an administrative record file, the compendium
of guidance documents must be available to the public, but only
at the regional office or other central location. The record
file located at or near the site should contain an index to the
compendium of guidance documents. The Administrative Record
Coordinator should maintain and update the compendium of guidance
documents* If a guidance document maintained in the compendium
is considered or relied on when making a response action
decision, the index to the record file must list the document and
indicate its location and availability. See also Appendix E.
If a guidance document is listed in a bibliography to a
document included in the record file (e.g., listed in the
bibliography to the RI/FS), it need not be listed again in the
35 See 40 C.F.R. §300. 805 (a) (2)
37
-------
OSWER Directive No. .9833.3A-1
index to the record file. In this case, however, the index must
state that documents listed as bibliographic sources might not be
listed separately in the index.
If a guidance document which is not included in the guidance
compendium is considered or relied on in selecting the response
action, the document should be physically included in the record
file.
J. Technical Literature
Technical literature generated for the site at issue should
be physically included in the administrative record file for that
site, whether or not it is publicly available.
Similarly, technical literature not specifically generated
for the site which is not publicly available should also be
included in the site-specific record file. Such documents
include technical journals and unpublished documents that are not
available through the Library of Congress or not circulated to
technical libraries.
Publicly available technical literature not generated for
the site, however, need not be located at or near the site or at
the regional office or other central location if the documents
are referenced in the index to the record file. These
documents do not have to be physically included in the record
file, unless requested, because they are already available to the
public. Copying such documents creates a significant burden to
the lead agency and copyright laws may pose additional barriers
to such copying. Examples of publicly available technical
literature include engineering manuals, groundwater monitoring or
hydrogeology textbooks, ATSDR toxicological profiles, and
articles from technical journals.
If technical literature is listed in a bibliography to a
document included in the record file (e.g., listed in the
bibliography to the RI/FS), it need not be listed again in the
index to the record file. In this case, however, the index must
state that documents listed as bibliographic sources might not be
listed separately in the index.
Computer models and technical databases need not be
physically included in the record file but should be referenced
in the index to the record file and made available upon request.
Printouts or other documents produced from the models and
databases should be physically included in the record file if
36 See 40 C.F.R. §300.805(b) (3) .
38
-------
OSWER Directive No. 9833.3A-1
such documents contain information which was considered or relied
on in selecting the response action.
K. Legal Sources
Copies of statutes and regulations cited in documents
included in the record file need not be included in the record
file if they are readily available to the public. For example,
the NCP and other regulations are easily accessible since they
are published in the Federal Register and the Code of Federal
Regulations (C.F.R.).
Copies of the actual standards (statutes or regulations)
comprising federal and state ARARs should be physically included
in the record file if they are not easily accessible. Also,
other federal and state criteria, advisories, and guidance
documents pertinent to the site (e.g., what the EPA refers to as
"TBCs," or standards "to be considered"), may not be easily
accessible. If such documents are cited in an RI/FS, appendix to
the RI/FS, EE/CA, or ROD, those advisories which are not readily
available should be included in the record file.
L. NPL Rulemaking Docket Information
Generally, information included in the National Priorities
List (NPL) rulemaking docket, such as the Hazard Ranking System
(HRS) scoring package and comments received on the listing, need
not be included in the record file for selection of a response
action. The NPL docket contains information relevant to the
decision to list a site, which may be irrelevant to the decision
on response action selection.
Documents in the NPL docket which contain sampling data or
other factual information which was considered or relied on in
selecting a response action should be included in the record file
if the information is not available already in the record file.
Such information may include early sampling data taken by parties
other than the lead agency or its contractors (e.g., a State).
M. RCRA Documents
If «i action is taken under CERCLA at a site with a history
of Resource Conservation and Recovery Act (RCRA) activity, much
of the information relating to those RCRA activities may be
considered or relied on in making the CERCLA response action
selection. Any relevant RCRA information, particularly
information on waste management and RCRA corrective action at the
site, should be included in the administrative record file (e.g.,
RCRA permit applications, inspection reports, RCRA Facility
Assessment (RFA), RCRA. Facility Investigation (RFI), Corrective
39
-------
OSWER Directive No. 9833.3A-1
Measures Studies (CMS), or responses to RCRA information
requests).
Not all pre-existing RCRA information will be considered or
relied on in selecting a CERCLA response action, but information
on types of wastes, quantity of wastes, and observations of
potential threats gathered during RCRA investigations generally
will be considered and thus should be included in the record
file.
N. Post-Decision Information
In all cases, documents generated or received after signing
the decision document should be kept in a post-decision document
file. This file is not part of the administrative record file
and should be maintained only at the regional office or other
central location.
In general, post-decision documents should not be added to
the administrative record file. Since the record file contains
the information which was considered or relied on in selecting
the response action, documents generated or received after
selecting the response action are not relevant to that response
decision and should not be included in the record file. Such
documents may, however, be relevant to later response selection
decisions and, if so, should be included in the record file
pursuant to Section 300.825 of the NCP.
Documents kept in the post-decision document file may be
added to the record file in the situations described below:
o Where a decision document does not address or reserves a
portion of the decision to be made at a later date.37 For
example, a decision document that does not resolve the type
of treatment technology. In such cases, the lead agency
should continue to add documents to the record file which
form the basis for the unaddressed or reserved portion of
the decision;
o Wh«r« there is a significant change in the selected response
action. Changes that result in a significant difference
to • basic feature of the selected remedial action (e.g.,
tiaing, ARARs), with respect to scope, performance, or cost
37 40 C.F.R. §300.825(a) (1) .
58 40 C.F.R. §300.825(a) (2) . See 40 C.F.R. |300.435(c)(2)(i).
40
-------
OSWER Directive No. 9833.3A-1
may be addressed in an explanation of significant
differences. Section 117(c) of CERCLA states:
[a]fter adoption of a final remedial action plan -
(1) if any remedial action is taken, (2) if any
enforcement action under section 106 is taken, or
(3) if any settlement or consent decree under
section 106 or section 122 is entered into, and if
such action, settlement, or decree differs in any
significant respects from the final plan, the
President or the State shall publish an
explanation of the significant differences and the
reasons such changes were made.
The record file should include the explanation of
significant differences, underlying documentation for the
response action changes, any significant comments from the
public, and the lead agency responses to any significant
comments. A formal public comment period is not required
for an explanation of significant differences;
Where the changes are so significant that they fundamentally
alter the very nature or basis of the overall response
action. Such changes will require an amended decision
document. 9 The Region will decide whether a change to a
response action is considered a significant or a fundamental
change for purposes of addressing the change (see Chapter 8
of "Interim Final Guidance on Preparing Superfund Decision
Documents: The Proposed Plan and Record of Decision," June
1989, OSWER Directive NO. 9355.3-02).
When the decision document is amended, the amended decision
document, the underlying documentation, any significant
comments from the public, and the lead agency's responses to
any significant comments, should be included in the record
file. ROD amendments will require a formal public comment
period;40
where comments containing significant information are
submitted by interested persons after the close of the
public comment period. The lead agency must consider such
comments only to the extent that the comments contain
significant information not contained elsewhere in the
record file which could not have been submitted during the
public comment period and which substantially support the
39 40 C.F.R. §300.825(a) (2) .
40 40 C.F.R. §300.435(0) (2) (ii).
41
-------
OSWER Directive No. 9833.3A-1
need to significantly alter the response action.41
Documents meeting this test should be included in the record
file, along with the lead agency's responses to the
significant comments, whether or not such information
results in a change to the selected decision. In this case,
the comments and the lead agency responses to such comments,
including any supporting documents, should be included in
the record file; and
o Where the lead agency holds public comment periods after the
selection of the response action.4 The lead agency may
hold additional public comment periods or extend the time
for submission of public comment on any issue concerning
response selection. Such comment should be limited to the
issues for which the lead agency requested additional
comment. All comments responsive to the request submitted
during such comment periods, along with any public notices
of the comment period, transcripts of public meetings, and
lead agency responses to the comments, should be placed in
the record file.
IV. INVOLVEMENT OF OTHER PARTIES
A. States
A.I. State Involvement in Federal-Lead Sites
The administrative record for a federal-lead site must
reflect the state's opportunity to be involved in selecting the
response action. The record for a remedial action should include
documents that reflect at least the following state participation
or the opportunity for state participation:43
o Letter to state requesting identification of ARARs and the
final response from state identifying ARARs (and
certification from the state);
o Comments, or the opportunity to comment, on a proposed
finding or decision to select a response action not
attaining a level or standard of control at least equivalent
to a state ARAR;
41 40 C.F.R. §300.825(c).
42 40 C.P.R. §300.825(b) .
43 See also Section 121 (f) of CERCLA
42
-------
OSWER Directive No.- 9833.3A-1
o Comments, or the opportunity to comment, on the final draft
RI/FS, the proposed plan and EPA responses to the comments;
o Significant post-decision comments by the state and EPA
responses to the comments (place in the post-decision
document file for possible inclusion in the record file -
see section III.N. at page 40).
The administrative record for a removal action should
reflect any state participation, especially any state comments
and EPA responses to the comments.
The record file should only include final state comments,
unless the comments explain or convey decisions on substantive
aspects of a proposed or selected remedy (e.g., the scope of a
proposed action or the identification of potential ARARs). Any
preliminary deliberations between the state and EPA relevant to
the response selection need not be part of the record file if
superseded by documentation of the state's final position.
The governing body of an Indian tribe should be afforded the
same treatment as a state in accordance with Section 126 of
CERCLA.
.A.2.. Federal Involvement in .State-Lead Sites
Where a state has been officially designated the lead agency
for a CERCLA site, the state must compile and maintain the
administrative record for that site in accordance with Section
113(k) of CERCLA and Section 300.800 of the NCP. Since EPA has
ultimate responsibility for both the selection of a response
action (e.g., EPA signs the ROD) and the record on which that
response action is based, EPA must participate in compiling and
maintaining the record. In such cases, EPA must assure that the
record file forms a complete basis for the selection of the
response action.
The state as lead agency must maintain the record file at a
state office (e.g., the state's central environmental agency
office) and at or near the site. At a minimum, the state as lead
agency also Bust transmit a copy of the index, the RI/FS work
plan, th« BZ/FS released for public comment, the proposed plan,
and any poblic comments received on the RI/FS and the proposed
plan to the appropriate EPA Regional office. These documents
should be transmitted to EPA as they are generated or received.
Transmittal of the index will not suffice. In addition, other
documents may be requested by EPA on a case-by-case basis.
See 40 C.F.R. §300.800(C).
43
-------
OSWER Directive No. 9833.3A-1
The Superfund Memorandum of Agreement (SMOA), or Cooperative
Agreement (CA), must address the administrative record
requirements. The following language should be included in the
SMOA or CA where the state has been officially designated the
lead agency for a CERCLA site:
The state must compile and maintain the administrative
record upon which the selection of the [remedial,
removal] action is based. The compilation and
maintenance of the record must follow 40 C.F.R. Part
300, Subpart I and EPA guidance on the administrative
record. The administrative record must be located at
the state [environmental agency] office, and at or near
the site. In addition, the state must submit copies of
the index, the RI/FS workplan, the RI/FS released for
public comment, the proposed plan, and any public
comments received on the RI/FS and proposed plan to the
EPA Regional office, as they are added to the
administrative record file. In addition, the state
must submit other documents that are requested by EPA.
The state shall comply with Section 113 of CERCLA and
any applicable regulations. EPA may require the
retention of other documents for cost recovery
purposes.
The record file compiled by the state should reflect EPA's
participation, comments, concurrence, and disagreements at the
same stages as are required for state involvement in a federal-
lead site. The state must place in the record file any documents
submitted by EPA for inclusion in the record file.
B.' Federal Facilities
Federal agencies have the responsibility, pursuant to
Executive Order 12580, to establish the administrative record for
federal facilities under their jurisdiction, custody, or control
where using CERCLA authority for a response action. The record
file for a federal facility must include all documents considered
or relied on in selecting a response action, including documents
submitted by EPA on the selection of the response action. The
federal agency must comply with all NCP (see Appendix M) and
CERCLA requirements in compiling and maintaining the record,
including the minimum public participation requirements in
Sections 113 and 117 of CERCLA.
45 See 40 C.F.R. §300.800(b).
44
-------
OSWER Directive No. 9833.3A-1
The federal agency must maintain the record file at or near
the site and ensure easy public access to the record file. If,
for example, a site is a Department of Defense facility, the
record file should be housed in a location which does not require
military clearance for access. The federal agency should keep a
complete copy of the record file at a location within the federal
agency office comparable to an EPA Regional office.
At NPL sites and any other site where EPA is involved in
selecting a response action at a federal facility, EPA must
participate in compiling and maintaining the record. In such
cases, EPA must assure that the record file forms a complete
basis for the selection of the response action. At a minimum,
the federal agency must transmit a copy of the index, the RI/FS
workplan, the RI/FS released for public comment, the proposed
plan, and any public comments received on the RI/FS and proposed
plan to the appropriate EPA Regional office. These documents
should be transmitted to EPA as they are generated. Transmittal
of the index will not suffice. In addition, other documents may
be requested by EPA on a case-by-case basis. Inter-Agency
Agreements (lAGs) should spell out procedures for compiling and
maintaining the record.
C. ATSDR
—- Participation in the selection of a response action by the
Agency for Toxic Substance and Disease Registry (ATSDR) should be
reflected in the administrative record. The record file must
include the initial and subsequent health assessments and any
other information EPA solicits and obtains from ATSDR which EPA
considers or relies on in its selection of a response action.
Draft versions of the health assessment and other draft
documents upon which ATSDR comments should not be included in the
record file. If, however, EPA solicits comments from ATSDR on a
draft document such as a draft work plan or RI report, and
receives formal comments from ATSDR which EPA considers or relies
on in selecting a response action, then the document and comments
should be included in the record file.
In the event that the ATSDR health assessment and EPA's risk
assessment appear inconsistent, a document explaining the
difference should be generated and placed in the record file.
D. Natural Resources Trustees
Section 122(j)(l) of CERCLA requires that the EPA give
notice to the Natural Resources Trustee of a release or
threatened release of any hazardous substance which may have
resulted in damages to natural resources. The administrative
45
-------
OSWER Directive No. 9833.3A-1
record file must include the notice to the Natural Resources
Trustee, and any subsequent final communications (e.g., a release
or final report). In addition, any factual information provided
by the Natural Resources Trustee which is considered or relied on
in selecting a response action should be included in the record
file.
In the event that the Natural Resources Trustee's damage
assessment and EPA's risk assessment appear inconsistent, a
document explaining the difference should be generated and placed
in the record file.
V. DISCLAIMER
The policies and procedures established in this document are
intended solely for the guidance of employees of the U.S.
Environmental Protection Agency. 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. EPA reserves the right to act at variance with
these policies and procedures and to change them at any time
without public notice.
VI. FURTHER INFORMATION
For further information concerning this memorandum, please
contact Gary Worthman in the Office of Waste Programs Enforcement
at FTS (202) 382-5646.
46
-------
OSWER Directive No. 9833.3A-1
GLOSSARY
Administrative Record; as used in this guidance, the body of
documents that were considered or relied on which form the basis
for the selection of a response action.
Administrative Record File; as used in this guidance, the
ongoing collection of documents which are anticipated to
constitute the administrative record when the selection of
response action is made.
ARAR: applicable or relevant and appropriate requirements (see
Section 121(d) of CERCLA).
ATSPR; Agency for Toxic Substance and Disease Registry.
CA; cooperative agreement (entered into with a state or local
government to transfer funds to conduct response activities).
CBI; confidential business information.
CERCLA; Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986 (also known as Superfund).
C.F.R.; Code of Federal Regulations.
CMS; corrective measure study (RCRA corrective action document,
equivalent to an FS).
CRC; Community Relations Coordinator.
CRP; community relations plan.
Document; as used in this guidance, includes writings, drawings,
graphs, charts, photographs, and data compilation from which
information can be obtained. It does not, however, include
physical samples.
DOJ; Department of Justice.
EE/CA; engineering evaluation/cost analysis (removal document).
EPA; United States Environmental Protection Agency.
ESP; Environmental Services Division.
Explanation of Significant Differences; post-ROD document
described in Section 117(c) of CERCLA.
47
-------
OSWER Directive No. 9833.3A-1
FOIA; Freedom of Information Act.
FSP; field sampling plan.
MRS; Hazard Ranking System.
TAG; inter-agency agreement (made with a federal agency).
Lead Agency • the agency that provides the OSC or RPM to plan and
implement a response action under the NCP.
NCP: National Oil and Hazardous Substances Pollution Contingency
Plan, as revised on March 8, 1990 (55 FR 8859).
NPL; National Priorities List.
OE; EPA Office of Enforcement.
OERR; EPA Office of Emergency and Remedial Response.
OIRM: EPA Office of Information Resources Management.
Operable Unit; a discrete action that comprises an incremental
step toward comprehensively addressing site problems (see section
300.5 of the NCP).
ORC; EPA Office of Regional Counsel.
OSC; On-Scene Coordinator (project manager for a removal action)
OSWER; EPA Office of Solid Waste and Emergency Response.
OWPE; EPA Office of Waste Programs Enforcement.
PA; preliminary assessment.
PRP; potentially responsible party.
OAPP; quality assurance project plan.
RA; remedial action.
RCRA; the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act.
RD; remedial design.
RI/FS: remedial investigation/feasibility study.
48
-------
OSWER Directive No. 9833.3A-1
RFA; RCRA facility assessment (RCRA document, equivalent to a
PA/SI).
RFI; RCRA facility investigation (RCRA corrective action
document, equivalent to an RI).
ROD; Record of Decision (documents the selection of a remedial
action).
RPM; remedial project manager (project manager for a remedial
action).
SAP: sampling and analysis plan.
SARA; Superfund Amendments and Reauthorization Act of 1986 (see
CERCLA above).
Site File; the file containing all site documentation.
SI; site investigation.
SMOA; Superfund memorandum of agreement (made with a state). -
Support Agency; the agency that provides the support agency
coordinator to furnish necessary data to the lead agency, review
response data and documents, and provide other assistance as
requested by the lead agency. The support agency may also concur
on decision documents.
49
-------
APPENDIX A
SECTION 113 (J) OP CERCIA
ij) JUDICIAL REVl£W.—
' I) LIMITATION.—In any judicial action under this Act. judi-
cial review of any issues concerning the adequacy of any re-
sponse action taken or ordered by the President shall b« limit-
ed to the administrative record. Otherwise applicable princi-
ples of administrative law shall govern whether any supple-
mental materials may b« considered by the court.
(2) STANDARD.—In considering objections raised in any-judi-
cial action under this Act, the court shall uphold the Presi-
dent's decision in selecting the response action unless the ob-
jecting party can demonstrate, on the administrative record,
that the decision was arbitrary and capacious or otherwise not
in accordance with law.
(3) RraciDY.—If the court finds that the selection of the re-
sponse action was arbitrary and capricious or otherwise not in
accordance with law, the court shall award (A) only the re-
sponse costs or damages that are not inconsistent with the na-
tional contingency plan, and (B) such other relief as is consist-
ent with the National Contingency Plan.
(4) PROCZDUKAL DUUDRS.—In reviewing alleged procedural
errors, the court may disallow costs or damages only if the
errors were so serious and related to matters of such central
relevance to the action that the action would have been signifi-
cantly changed had such errors not been made.
50
-------
SECTION U3 (K) OF CI
ADMINISTRATIVE RECORD A.ND PARTICIPATION PROCEDLTIES.—
il) ADMINISTRATTVHE RECORD.— The President shall establish
an administrative record upon which the President shall base
the selection of a response action. The administrative record
shall be available to the public at or near the facility at issue.
The President also may place duplicates of the administrative
record at any other location.
>2) PARTICIPATION PROCEDURES.—
(A) REMOVAL ACTION.— The President shall promulgate
regulations in accordance with chapter 5 of title 5 of the
United States Code establishing procedures for the appro-
priate participation of interested persons in the develop-
ment of the administrative record on which the President
will base the selection of removal actions and on which ju-
dicial review of removal actions will be based.
(B) REMEDIAL ACTION.— The President shall provide for
the participation of interested persons, including potential-
ly responsible parties, in the development of the
trarive record on which the President will base the selec-
tion of remedial actions and on which judicial review of re-
medial actions will be based. The procedures developed
under this subparagraph shall include, at a minimum,
each of the following:
(i) Notice to potentially affected persons and the
public, which shall be accompanied by a brief analysis
of the plan and alternative plans that were consid-
ered,
(ii) A reasonable opportunity to comment and pro-
vide information regarding the plan.
(iii) An opportunity for a public meeting in the af-
fected area, in accordance with section 117(aX2) (relat-
ing to public participation).
(iy) A response to each of the *iyni*f**i[ comments,
criticisms, and new data submitted in written or oral
presentations.
(v) A statement of the basis and purpose of the se-
lected action.
For purposes of this subparagrapb, the administrative
record shall include all items developed and received
under this subparagraph and all items described in the
second sentence of section 117(d). The President shall pro-
mulgate regulations in accordance with chapter S of title 5
of the United States Code to carry out the requirements of
thi« subparagraph.
(O INTOUM aacoEP.— Until such regulations under sub-
paragraphs (A) and (B) are promulgated, the administra-
tive record shall consist of ail items developed and re-
ceived pursuant to current procedures for selection of the
response action, inf'^^g procedures for the participation
of interested parties and the public. The development of sa
administrative record and the selection of response action
under this Act shall not include an adjudicatory hearing.
(D) POTINTULLY unoNsnui FAKTB.— The President
«h«n make reasonable efforts to identify and notify poten-
tially responsible parties as early as possible before selec-
tion of a response action. Nothing in this paragraph shall
be construed to be a defense to liability.
51
-------
APPENDIX B
MODEL FILE STRUCTURE
This model file structure may be us«d to compile an
administrative record fil« for * remedial action, a removal action,
or a combination of both remedial and removal actions. If the
record documents a remedial action decision, section 2 of the file
will contain only those removal action documents which (a) predate
the remedial record of decision and (b) are relevant to the
selection of the remedial action. If the record documents a removal
action decision, sections 3, 4, and 5 of the file will contain only
those remedial action documents which (a) predate the removal action
memorandum and (b) are relevant to the selection of the removal
action.
Justification is unnecessary for file categories without any
documents. Those categories should be left out of the index.
A document should be filed in only one category, even if it
falls into more than one category. It may be referenced in another
category. If necessary, additional eubcategoriee may be developed
to accommodate documents not falling in any of the defined
subcategories. Avoid adding categories of miscellaneous documents.
The correspondence subcategory can include comments and
responses specific to the category. If the comments and responses
are general in nature or address more than one category, they may be
included in the public participation category.
52
-------
INDEX .'FIRST DOCUMENT]
1.0 SITE IDENTIFICATION
1.1 Background - RCRA and other information
1.2 Notification/Sit* Inspection Reports
1.3 Preliminary Assessment (PA) Report
1.4 • Site Investigation (SI) Report
1.5 Previous Operable Unit Information
2.0 REMOVAL RESPONSE
2.1 Sampling and Analysis Plans
2.2 Sampling and Analysis Data/Chain of Custody Forms
2.3 EE/CA Approval Memorandum (for non-time-critical removals)
2.4 EE/CA
2.5 Action Memorandum
2.6 Amendments to Action Memorandum
3.0 REMEDIAL INVESTIGATION (RI)
3.1 Sampling and Analysis Plan (SAP)
3.2 Sampling and Analysis Data/Chain of Custody Forms
3.3 Work Plan
3.4 RI Reports
4.0 FEASIBILITY STUDY (FS)
4.1 ARAR Determinations
4.2 .FS Reports
4.3 Proposed Plan
4.4 Supplements and Revisions to the Proposed Plan
5.0 RECORD OF DBCXSXOV (BOO)
5.1 ROD
5.2 Aaendatnts to ROD
5.3 Explanations of Significant Differences
6.0 STATE COORDIHAT10ST
6.1 Cooperative A^reements/SMOAs
53
-------
St-it
7.0 ENFORCEMENT
7.1 Enforcement History
7.2 Endangerment Assessments
7.3 Administrative orders
7.4 Consent Decrees
7.5 Affidavits
7.6 Documentation of Technical Discussions with PRPs on
Response Actions
7.7 Notice Letters and Responses
8.0 HEALTH ASSESSMENTS
8.1 ATSDR Health Assessments
8.2 Toxicological Profiles
9.0 NATURAL RESOURCE TRUSTEES
9.1 Notices Issued
9.2 Findings of Fact
9 . 3 Reports
10.0 PUBLIC PARTICIPATION
10.1 Comments and Responses
10.2 Community Relation* Plan
10.3 Public Notice (•) (Availability of the Administrative Record
File, Availability the Proposed Plan, Public Meetings)
10.4 Public Meeting Transcripts
10.5 Documentation of Other Public Meeting*
10.6 Fact Sheets and Press Releases
10.7 Responsiveness Summary
10.8 Late CossMnts
11.0 TECHMICAL SOURCES AJID CU1DAMC1 DOCUMENTS
ll.l EPA Headquarters Guidance
11.2 EPA Regional Guidance
11.3 Stats Guidance
54
-------
APPENDIX C
MODEL INDEX
Attached is an excerpt of the index of documents included in
the Administrative Record for the Love Canal site. The Index lists
the documents according to the EPA file structure (category number).
The Index includes the following information fields:
DOCUMENT NUMBER..
TITLE
AUTHOR
RECIPIENT.
DATE
TYPE.
CATEGORY,
indicates the first and last page numbers of
the document. Both page numbers will be the
same for one-page documents. In this
particular index, the document number
consists of a three letter site .code
followed by microfilm reel and frame
numbers.
indicates the title or an enhanced
description of the document in parentheses.
indicates the author or primary originator
and the author's corporate affiliation.
indicates the addressee or primary recipient
and the addressee's corporate affiliation.
indicates document date by month/day/year.
/ / means no date was available.
indicates the document typ«.
indicate* the EPA file structure number.
56
-------
APPENDIX D
MODEL POSITION DESCRIPTION FOR ADMINISTRATIVE RJECORJD COORDINATOR
INTRODUCTION,
The incumbent serves as an Administrative Record Coordinator in
one of the Regional offices of the Environmental Protection Agency
(EPA). '[Each Region may want to add an introduction to Superfund
and the Regional office here.] The incumbent is responsible for
compiling and maintaining administrative record files for CERCLA
(Superfund) response action decisions.
Section 113 (k) of CERCLA requires the establishment of an
administrative record upon which the selection of a response action
is based. Such a record is a compilation of all documents which the
Agency considered or relied on in making its response action
decision. Judicial review of any issues concerning the adequacy of
any response action decision is limited to the administrative
record. Public participation in the development of the record is
required by lav.
Establishment of thorough and complete administrative records is
essential to EPA's Superfund program. Administrative records which
include public participation and withstand judicial scrutiny allow
EPA to meet its goals and objectives.
The incumbent will be responsible for compiling and maintaining
administrative records for large numbers of Superfund sites. Each
record requires coordination with many people including: Federal
staff, state and local official*, private contractors, the general
public and potentially responsible parties. Further
responsibilities include deliberations over which materials to
include in each record and requirements for dealing with privileged
materials.
MAJOR DOTI*3 AMD
The incumbent is responsible for compiling and maintaining all
of the administrative records for selection of CERCLA response
actions for • Regional office of the EPA. The incumbent must
have complete! knowledge of all rules and procedures governing
development of the administrative record files.
Receives and raviavs all documents submitted by the Remedial
Project Manager (RPM), On-Scene Coordinator (OSC) , Office of
Regional Counsel (ORC) and other appropriate staff for inclusion
in the administrative record files. The incumbent will
coordinate with staff responsible for deciding what documents
ars included in the record and will arrange for adding documents
to the record file).
57
-------
3. Compiles the administrative record file for each CERCLA
response action. This includes logging the receipt of each
document, maintaining a central master file of documents,
redacting information from privileged documents as directed
by ORC, maintaining any privileged portions of each record
using Agency security measures, arranging for copying of
documents in each record and transmitting the documents to
appropriate repositories.
4. Coordinates the compilation of the administrative record
files with state and federal agencies. This includes
receiving records maintained by state and federal agencies
and notifying appropriate personnel of these records for
their review.
5. Maintains and updates (monthly) an index of each
administrative record file in conformance with Agency
guidelines.
6. Ensures public access to administrative record files. This
includes notifying the public of the availability of the
record, making the record available for public inspection,
coordinating with personnel at the facility where the record
is located, maintaining an adequate copying facility and
maintaining a log of persons reviewing documents. The
incumbent will have to respond to phone calls and visitors
wanting information on and from the record. These functions
will be coordinated with the Office of Public Affairs and
Superfund Community Relation* Coordinators. -
7. Maintains the Regional Superfund Central Library of guidance
documents and technical references.
CONTROLS OVER WORK
The incumbent works under the general supervision of the
[Hazardous Wast* Branch Chief]. An administrative record is
reviewed and certified for litigation by a person designated by
the Regional Administrator.
-------
APPENDIX I
COMPENDIUM OF CERCLA
RESPONSE SELECTION
GUIDANCE DOCUMENTS
USERS MANUAL
U. S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF WASTE PROGRAMS ENFORCEMENT
MAY 1919
59
-------
COMPENDIUM OF
CERCLA RESPONSE SELECTION GUIDANCE DOCUMENTS
Prepared by EPA
PRE-REMEDIAL
Document No. 0001 Status: Final
Expanded Site Inspection Transitional Guidance for FY-
88, prepared by OERR, October 1, 1987.
OSWER #9345.1-02
Document No. 0002 Status: Final
Preliminary Assessment Guidance Fiscal Year 1988,
prepared by OERR/HSCD, January 1, 1988.
OSWER #9345.0-01
REMOVAL ACTION
Document No. 1000 Status: Final
CSRCLA Removal Actions at Methane Release Sites,
prepared by H.L. Longest, OERR, January 23, 1986.
OSWER #9360.0-8
Document No. 1001 Status: Final
Costs of Remedial Response Actions at Uncontrolled
Hazardous Waste Sites, prepared by H.L. Rishel, et al SCS
Engineers, and O.W. Albrecht, MERL, January 1, 1981.
Document No. 1002 Status: Final
Emergency Response Procedures for Control of Hazardous
Substance Releases, prepared by R.W. Melvold, Rockwell
International and L.T. McCarthy, MERL, January I, 1983.
EPA-600/D-84-023
Document No. 1003 Status: Final
Environmental fievie* Requirements for Removal Actions,
prepared by OERR/ERD, April 13, 1987.
OSWER #9318.0-05
Document No. 1004 Status: Final
Guidance on Implementation of the "Contribute to
Remedial Performance" Provision, prepared by OSWER, April
6, 1987.
OSWER #9360.0-13
Document No. 1008 Status: Final
Guidance on Non-NPL Removal Actions Involving
Nationally Significant or Precedent Setting Issues,
prepared by H.L. Longest, OERR, April 3, 1989.
OSWER #9360.0-19
Attachment: Request for Concurrence
-------
Document No. 1005 Status: Final
Information on Drinking Water Action Levels, prepared
by T. Fields Jr., OSWER/ERD, April 19, 1988.
Attachments: 1. Memo: Releases from Lawfully Applied
Pesticides
2. Memo: DBOP Contamination
3. Guidance for Ethylene Dibromide in Drinking
Water
Document No. 1006 Status: Final
Superfund Removal Procedures/ Revision i3, prepared by
OSWER/OERR, February I, 1988.
OSWER #9360.0-038
Document No. 1007 Status: Final
The Role of Expedited Response Actions Under SARA,
prepared by H.L. Longest, OERR, April 21, 1987.
OSWER #9360.0-15
Document No. 4002 Status: Final
.Interim Final Guidance on Removal Action Levels at
Contaminated Drinking Water Sites, (Secondary Reference),
prepared by OSWER/OERR, October 6, 1987.
OSWER #9360.1-01
Document No. 6001 Status: Final
Removal Cost Management Manual, (Secondary Reference),
prepared by OSWER/OERR, April 1, 1988.
OSWER #9360.0-028
REMEDIAL INVESTIGATION/FEASIBILITY STUDY—GENERAL
Document No. 2000 Status: Final
Case Studies 1-23: Remedial Response at Hazardous
Waste Sites, prepared by ORD/OEET/MERL and OSWER/OERR, March
1, 1984.
EPA-540/2-84-002b
Document No. 2001 Status: Final
EPA Guide for Minimi Ming the Adverse Environmental
Effect* of Clean-up of Uncontrolled Haxardous Waste
Sites, prepared by Environmental Research Laboratory, June 1,
1985.
EPA-600/8-85/008
Document No. 2002 Status: Final
Guidance for Conducting Remedial Investigations and
Feasibility Studies Under CERCLA, prepared by OSWER/OERR,
October 1, 1988.
OSWER #9355.3-01
-------
Document No. 2003 Status: Final
Joint Corps/EPA Guidance, prepared by OERR/PAS, June 24,
1983.
OSWER #9295.2-02
Document No. 2004 Status: Final
Modeling Remedial Actions at Uncontrolled Hazardous
Waste Sites (Vol. I-IV), prepared by S.H. Bout well, et al,
Anderson-Nichols and Co., OSWER/OERR, and D.C. Ammon and T.O.
Bornwell Jr., HWERL, April 1 1985.
OSWER 19355.0-08
Document No. 2005 Status: Final
Policy on Flood Plains and Wetland Assessments for
CSRCLA Actions, prepared by W.N. Hedeman, OERR, and G.
Lucero, OWPE, August 1, 1985.
OSWER #9280.0-02
Document No. 2006 Status: Final
Remedial Response at Hazardous Waste Sites: Summary
Report, prepared by ORD/MERL, March 1, 1984.
EPA-540/2-84/002a
Document No. 2007 Status: Final
Revised Procedures for Implementing Off-Site Response
Actions, prepared by J.W. Porter, OSWER, November 13, 1987.
OSWER #9834.11
Document No. 2008 Status: Final
RI/FS Improvements, prepared by H.L. Longest, OERR, July
23, 1987.
OSWER #9355.0-20
Attachment: RI/FS Improvements
Document No. 2009 Status: Final
RI/FS Improvements Follow-up, prepared by H.L. Longest,
OERR, April 25, 1988.
OSWER #9355.3-05
Attachments: 1. RI/FS Improvements Follow-Up
2. Remedial Information Transfer Activities.
Document No. 2010 Status: Draft
Superfund Federal-Lend Remedial Project Management
Handbook, prepared by OERR, December 1, 1986.
OSWER #9355.1-1
Document No. 2011 Status: Final
Superfund Remedial Design and Remedial Action
Guidance, prepared by OERR, June 1, 1986.
OSWER #9355.0-4A
-------
Document No. 2012 Status: Final
Sup* r fund State-Lead Remedial Project Management
Handbook, prepared by OERR, December 1, 1986.
OSWER #9355.2-1
REMEDIAL INVESTIGATION/FEASIBILITY STUDY—
RAW DATA/QUALITY SITE & WASTE ASSESSMENT
Document No. 2100 Status: Final
A Compendium of Superfund field Operations Methods,
prepared by OERR and OWPE, December 1, 1987.
OSWER #9355.0-14
Document No. 2101 Status: Final
Data Duality Objectives for Remedial Response
Activities: Developaent Process, prepared by CDM Federal
Programs Corp. and OERR/OWPE, March 1, 1987.
OSWER #9355.0-73
Document No. 2102 Status: Final
Data Quality Objectives for Remedial Response
Activities: Example Scenario: Remedial
Investigation/Feasibility Study Activities at a Site
with Contaminated Soils and Groundtrater, prepared by CDM
Federal Programs Corp. and OERR/OWPE, March 6, 1987.
OSWER #9355.0-78
Document No. 2103 Status: Final
Design and Development of Hazardous Waste Reactivity
resting Protocol, prepared by C.D. Wolbach, et al, Acurex
Corp. and N. Barkley, MERL, February 1, 1984.
EPA-600/2-84-057
Document No. 2104 Status: Final
Field Screening for Organic Containments in Samples
from Hazardous Waste Sites, prepared by H.K. Roffman, et
al NUS Corp., A. Carter, Michigan Department of National
Resources/ and T. Thomas, EPA, April 2, 1986.
Attachment: Memo: Field Screening For Organic Containments
Document No. 2105 Status: Final
Field Screening Methods Catalog: User's Guide, prepared
by OERR/HSED, September 1, 1988.
EPA-540-2-88/005
Document No. 2106 Status: Final
Field Standard Operating Procedures Manual §4-Site
Entry, prepared by OERR/HRSD, January 1, 1985.
OSWER #9285.2-01
-------
Document No. 2107 Status: Final
Timid Standard Operating Procedures Manuals §6-Work
Zones, prepared by OERR/HSCD, April 1, 1985.
OSWER #9285.2-04
Document No. 2108 Status: Final
Field Standard Operating Procedures Manual it 8-Air
Surveillance, prepared by OERR/HSCD, January 1, 1985.
OSWER #9285.2-03
Document No. 2109 Status: Final
Field Standard Operating Procedures Manual fP-Site
Safety Plan, prepared by OERR/HRSD, April 1, 1985.
OSWER #9285.2-05
Attachments: 1. Sample Site Safety Plan and OSHA Safety
Plan
2. Emergency Operation Codes Real Time Monitor
3. Response Safety Check-Off Sheet
Document No. 2110 Status: Final
Geophysical Methods for Locating Abandoned Wells,
prepared by L.M. Frischknecht, et al, U.S. Geological Survey
and J.J. Vanee, EMSL, July 1, 1984.
EPA-600/4-84-065
Document No. 2111 Status: Final
Geophysical Techniques for Sensing Buried Wastes and
Waste Migration, prepared by R.C. Benson, et al Tech Nos
Inc. and J.J. Vanee, EMSL, June 1, 1984.
EPA-600/7-84/064
Document No. 2112 Status: Final
Guidelines and Specifications for Preparing Quality
Assurance Program Documentation, prepared by ORD/Quality
Assurance Management Staff, June 1, 1987.
Attachment: Memo: Guidance on Preparing QAPPs, Dated
6/10/87.
Document No. 2113 Status: Draft
Laboratory Data Validation Functional Guidelines for
Evaluating Inorganics Analyses, prepared by EPA Data
Review Work Group, R. Bleyler, Viar and Co./Sample Mgmt.
Office, and HSED, July 1, 1988.
Document No. 2114 Status: Draft
Laboratory Data, Validation Functional Guidelines for
Evaluating Organics Analyses, prepared by R. Bleyler Viar
and Co. Sample Management office, EPA Data Review Workgroup,
and HSED, February 1, 1988.
-------
Document No. 2115 Status: Final
Practical Guide for Ground-Water Sampling, prepared by
M.J. Barcelona, et al, Illinois St. Water Survey and M.R.
Scalf, ORD/ERL, September 1, 1985.
EPA-600/2-85/104
Document No. 2116 Status: Final
Sediment Sampling Quality Assurance User's Quid*,
prepared by D.S. Earth and T.S. Starks, Univ. of Nevada, Las
Vegas and K. W. Brown, EARD, July 1, 1985.
EPA-600/4-85/048
Document No. 2117 Status: Final
Soil Sampling Quality Assurance User's Guide, prepared
by D.S. Barth and B.J. Mason, Univ. of Nevada, Las Vegas and
K. Brown, ORD EARD, May 1, 1984.
EPA-600/4-84-043
Document No. 2118 Status: Final
Test Methods tor Evaluating Solid Waste, Laboratory
Manual Physical/Chemical Methods, Third Edition
(Volumes 1A, IB, 1C, 6 IX), prepared by OSWER, November 1,
1986.
Document No. 2119 Status: Final
User's Guide to the Contract Laboratory Program,
prepared by OERR/CLP Sample Management Office, December 1,
1988.
OSWER #9240.0-1
REMEDIAL INVESTIGATION/FEASIBILITY STUDY—
LAND DISPOSAL FACILITY TECHNOLOGY
Document No. 2200 Status: Final
Covers for Uncontrolled Bagardous Waste Sites, prepared
by C.C. McAneny, et al, U.S. COE/WES and J.M. Houthoofd,
HWERL, September 1, 1985.
EPA-540/2-85/002
Document No. 2201 Status: Final
Design, Construction, and Evaluation of Clay Liners
tor Waste Management Facilities, prepared by L.J.
Goldman, et al, NUS and M.H. Roulier, RREL, November 1, 1988.
EPA-530-SW-86-007-F
Document No. 2202 Status: Final
Evaluating Cover Systems for Solid and Baxardous
Waste, prepared by R.J. Lutton, U.S. COE/WES and R.E.
Landreth, MERL, September 1, 1982.
OSWER #9476.00-1
-------
Document No. 2203 Status: Final
Guidance Manual for Minimising Pollution from Waste
Disposal Situs, prepared by A.L. Tolman, et al, A.W. Martin
Associates, Inc. and D.E. Banning, MERL, August 1, 1978.
EPA-600/2-78-142
Document No. 2204 Status: Final
Land Disposal Restrictions, prepared by H.L. Longest, OERR
and G. Lucero, OWPE, August 11, 1987.
Attachments: 1. Summary of Major LDR Provisions &
California List Prohibitions
2. Other attachments cited are available in
the Federal Register
Document No. 2205 Status: Final
Lining of Waste Containment and Other Tinpoundment
Facilities/ prepared by Matrecon, Inc. and R. Landreth,
ORD/Risk Reduction Engineering Lab, September 1, 1988.
EPA-600/2-88/052
Document No. 2206 Status: Final
Lining of Waste Impoundment and Disposal facilities,
prepared by R. Landreth, MERL, March 1, 1983.
OSWER #9480.00-4
Document No. 2207 Status: Draft
Procedures for Modeling Flotr Through Clay Liners to
Determine Keguired Liner Thickness, prepared by OSW,
January 1, 1984.
OSWER #9480.00-90
Document No. 2208 Status: Draft
RCRA Guidance Document: Landfill Design Liner Systems
and Final Cover, prepared by EPA, July 1, 1982.
Document No. 2209 Status: Final
Settlement and Cover Subsidence of Hazardous Waste
Landfills: Project Summary, prepared by W.L. Murphy and
P.A. Gilbert, May 1, 1985.
EPA-600/S2-85-035
Document No. 2210 Status: Final
Supplementary Guidance on Determining Liner/Leachate
Collection System Compatibility, prepared by B.R.Weddle,
Permits and State Programs Division, August 7, 1986.
OSWER #9480.00-13
Attachments: 1. Analysis and Fingerprinting of Exposed and
Unexposed Poymeric and Membranic Liners,
Matrecon, Inc.
2. Section 3019: Exposure Information and
Health Assessments
-------
Document No. 2211 Status: Final
Technical Guidance Document: Construction Duality
Assurance for Hazardous Waste Land Disposal
facilities, prepared by J.G. Herrmann, HWERL/Land Pollution
Control Division and OSWER, October 1, 1986.
OSWER #9472.003
Document No. 2212 Status: Final
Treatment of Reactive Wastes at Hazardous Waste
Landfills; Project Summary, prepared by D. Shooter, et
al, Arthur D. Little, Inc. and R. Landreth, MERL, January 1,
1984.
EPA-600/S2-83-118
Document No. 3000 Status: Final
Applicability of the HSWA Minimum Technical
Requirements Respecting Liners and Xeacnate Collection
Systems, (Secondary Reference), prepared by J. Skinner, OSW,
April 1, 1985.
OSWER #9480.01(85)
REMEDIAL INVESTIGATION/FEASIBILITY STUDY—OTHER
TECHNOLOGIES
Document No. 2300 Status: Final
A Compendium of Technologies Used in the Treatment of
Hazardous Wastes, prepared by ORD/CERI, September 1, 1987.
EPA-625/8-87/014
Document No. 2301 Status: Final
Carbon Absorption Isotherms for Toxic Orgmnd.cs,
prepared by R.A. Dobbs, MERL, and J.M. Cohen, MERL, April 1,
1980.
EPA-600/8-80-023
Document No. 2302 Status: Final
Engineering Handbook for Hazardous Waste Incineration,
prepared by T.A. Bonner, et al, Monsanto Research Corp. and
D.A. Oberacker, OEET, September 1, 1981.
OSWER #9488.00-5
Document No. 2303 Status: Final
SPA Guide for Identifying Clean-up Alternatives at
Hazardous Waste Sites and Spills: Biological
Treatment, prepared by Pacific Northwest Laboratory and L.C.
Raniere, Corvallis Environmental Research Lab., (undated).
EPA-600/3-83-063
Document No. 2304 Status: Final
EPA Guide for Infectious Waste Management, prepared by
OSWER/OSW, May 1, 1986.
OSWER #9410.00-2
-------
Document No. 2305 Status: Final
Guidance Document tor Clean-up of Surface Impoundment
Sites, prepared by CDM/Woodward-Clyde/Roy F. Weston and E.
Earth, OERR, June 1, 1986.
OSWER #9380.0-6
Document No. 2306 Status: Final
Guidance Document for Clean-up of Surface Tank and
Drum Sites, prepared by CDM/Woodward-Clyde/Roy F.
Weston/C.C. Johnson and E. Earth and B. Bixler, OERR, May 28,
1985.
OSWER #9380.0-3
Document No. 2307 Status: Final
Handbook for Evaluating Remedial Action Technology
Plans, prepared by J. Ehrenfeld and J. Bass, Arthur D.
Little, Inc. and H.R. Pahren, MERL, August 1, 1983.
EPA-600/2-83-076
Document No. 2308 Status: Final
Handbook for Stabilization/Identification of Hazardous
Waste, prepared by M.J. Cullinane Jr., et al, U.S. COE/WES
and J.M. HOUTHOOFD, ORD/HERL, June 1, 1986.
EPA-540/2-86-001
Document No. 2309 Status: Final
Handbook Remedial Action at Waste Disposal Sites
(Revised), prepared by ORD/HWERL and OSWER/OERR, October 1,
1985.
EPA-625/6-85/006
Document No. 2310 Status: Final
Leachate Plume Management, prepared by E. Repa and C.
Kufs, JRB Associates and N. Barkley, EPA, November 1, 1985.
EPA-540/2-85/004
Document No. 2311 Status: Final
Mobile Treatment Technologies for Superfund Wastes,
prepared by Camp, Dresser, and McKee, Inc. and L.D. Galer,
HRSD, September 1, 1986.
EPA-540/2-86-003(F)
Document No. 2312 Status: Final
Practical Guidef-iTrial Burns for Hazardous Waste
Incinerators, prepared by P. Gorman, et al, Midwest
Research Institute and D.A. Oberacker, HWERL, April 1, 1986.
EPA-600/2-86/050
Document No. 2313 Status: Final
Practical Guidei-fTrial Burns for Hazardous Waste
Incinerators. Project Summary, prepared by P. Gorman, et
al, Midwest Research Institute and D.A. Oberacker, HWERL,
July 1, 1986.
EPA-600/S2-86/050
-------
Document No. 2314 Status: Final
Prohibition on the Placement of Bulk Liquid Hazardous
Waste in Landfills—Statutory Interpretive Guidance,
prepared by OSWER/OSW, June 11, 1986.
OSWER #9487 00-2A
Attachment: Memo: Re: Same subject from Williams M.E./OSW
Document No. 2315 Status: Final
Review of In-place Trmatmmnt Techniques for
Contaminated Surface Soils—Vol. 2: Background
Information for In-situ Treatment, prepared by R.C. Sims,
et al, JRB Associates and N. Barkley, MERL, November 1, 1984.
EPA-540/2-84-003a
Document No. 2316 Status: Final
Review of In-place Treatment Techniques for
Contaminated Surface Soils—Vol. 1: Technical
Evaluation, prepared by OSWER/OERR and ORD/MERL, September
19, 1984.
EPA-540/2-84-003b
Document No. 2317 Status: Final
Slurry Trench Construction for Pollution Migration
Control, prepared by OERR and ORD/MERL, February 1, 1984.
EPA-540/2-84-001
Document No. 2318 Status: Final
Systems to Accelerate In-situ Stabilization of Waste
Deposits, prepared by M. Amaurer, et al, Envirosphere Co.
and W. Crube, HWERL, September 1, 1986.
EPA-540/2-86/002
Document No. 2319 Status: Final
Technology Screening Guide for Treatment of CSRCLA
Soils and Sludges, prepared by OSWER/OERR, September 1,
1988.
EPA-540/2-88/004
Document No. 2320 Status: Final
Treatment Technology Briefs: Alternatives to
Hazardous Waste Landfills, prepared by HWERL, July 1,
1986.
EPA-600/8-86/017
REMEDIAL INVESTIGATION/FEASIBILITY STUDY—GROUND-WATER
MONITORING AND PROTECTION
Document No. 2400 Status: Final
Criteria for Identifying Areas of Vulnerable
Hydrogeology Under RCRA: Statutory Interpretive
Guidance, prepared by OSWER/OSW, July 1, 1986.
OSWER #9472.00-2A
10
-------
Document No. 2401 Status: Final
final RCRA Comprehensive Ground-Water Monitoring
Evaluation (GHS) Guidance Document, prepared by G.A.
Lucero, OWPE, December 19, 1986.
OSWER #9950.2
Attachment: Relationship of" Technical Inadequacies to
Ground-Water Performance Standards
Document No. 2402 Status: Final
Ground-Water Monitoring at Clean-Closing Surface
.Impoundment and Waste Pile Units, prepared by J.W.
Porter, OSWER, March 31, 1988.
OSWER #9476.00-14
Document No. 2403 Status: Final
Ground-Water Protection Strategy, prepared by Office of
Ground-Water Protection, August 1, 1984.
EPA-440/6-84-002
Document No. 2404 Status: Draft
Guidelines for Ground-Water Classification Under the
SPA Ground-Water Protection Strategy, prepared by Office
of Ground-Water Protection, December 1, 1986.
Document No. 2405 Status: Final
Operation and Maintenance .Inspection Guide (RCRA
Ground-Water Monitoring Systems), prepared by
OSWER/OWPE/RCRA Enforcement Division, March 30, 1988.
OSWER #9950-3
Attachment: Transmittal Memo, RE: Same Subject
Document No. 2406 Status: Final
Protocol for Ground-Water Evaluations, prepared by
Hazardous Waste Ground Water Task Force, September 1, 1986.
OSWER #9080.0-1
Document No. 2407 Status: Final
RCRA Ground-Water Monitoring Technical Enforcement
Guidance Document (TXGD), prepared by EPA, September 1,
1986.
OSWER #9950.1
Document No. 2408 Status: Final
RCRA Ground-Water Monitoring Technical Enforcement
Guidance Document/ TSGD: Executive Summary, prepared
by G.A. Lucero, OWPE, July 1, 1987.
OSWER #9950.1-a
11
-------
APPT.TC!ABLE OP PF.T.F.VANT & APPROPRIATE REQUIREMENTS
Document No. 3000 Status: Final
Applicability of the BSWA Minimum Technical
fteguirements Respecting Linmrs and X>eacnate Collection
Systems, prepared by J. Skinner, OSW, April 1, 1985.
OSWER #9480.01(85)
Document No. 3001 Status: Final
CSRCLA Compliance with Other Environmental Statutes,
prepared by J. W. Porter, OSWER, October 2, 1985.
OSWER #9234.0-2
Attachments: Potentially Applicable or Relevant and
Appropriate Requirements
Document No. 3002 Status: Draft
CSRCLA Compliance with Other Lava Manual Draft
Guidance, prepared by OERR, August 8, 1988.
OSWER #9234.1-01
Document No. 3003 Status: Final
SPA's Implementation of the Superfund Amendments and
Reauthoriration Act of 1986, prepared by L.M. Thomas,
EPA, May 21, 1987.
Document No. 3004 Status: Final
Guidance Manual on the RCRA Regulation of Recycled
Hazardous Wastes, prepared by Industrial Economics, Inc.
and OSW, March 1, 1986.
OSWER #9441.00-2
Document No. 3005 Status: Final
Interim RCRA/CfRCLA Guidance on iron-Continuous Sit a*
and On-Sita Management of Waste and Treatment Residue,
prepared by J.W. Porter, OSWER, March 27, 1986.
OSWER #9347.0-1
Attachment: Combining Hazardous Waste Sites for RFM Action
Document No. 2400 Status: Final
Criteria ror Identifying Areas of Vulnerable
Hydrogeology Under RCRA: Statutory Interpretive
Guidance, (Secondary Reference), prepared by OSWER/OSW, July
1, 1986.
OSWER #9472.00-2A
Document No. 2401 Status:
final RCRA Comprehensive
Evaluation (GHX) Guidance
Final
Ground-Water Monitoring
Document, (Secondary
Reference), prepared by G.A. Lucero, OWPE, December 19, 1986.
OSWER #9950.2
Relationship of Technical Inadequacies to
Ground-Water Performance Standards
Attachment:
12
-------
Document No. 2405 Status: Final
Operation and Maintenance Inspection Guide (RCRA
Ground-Water Monitoring Systems), (Secondary Reference),
prepared by OSWER/OWPE/RCRA Enforcement Division, March 30,
1988.
OSWER 19950-3
Attachment: Transmittal Memo, RE: Same Subject
Document No. 2407 Status: Final
RCRA Ground-Water Monitoring Technical Enforcement
Guidance Document (TSCD), (Secondary Reference), prepared
by EPA, September 1, 1986.
OSWER #9950.1
Document No. 2408 Status: Final
RCRA Ground-Water Monitoring Technical Enforcement
Guidance Document. TSCD: Executive Summary,
(Secondary Reference), prepared by G.A. Lucero, OWPE, July 1,
1987.
OSWER #9950.1-a
Document No. 2208 Status: Draft
RCRA Guidance Document: Landfill Design Liner Systems
and Final Cover, (Secondary Reference), prepared by EPA,
July 1, 1982.
Document No. 9001 Status: Final
RCRA/CSRCLA Decisions Made on Remedy Selection,
(Secondary Reference), prepared by M. Kilpatrick, Compliance
Branch, OWPE, June 24, 1985.
WATER QUALITY
Document No. 4000 Status: Final
Alternate Concentration Limit Guidance Part 1, ACL
Policy and Information Requirements, prepared by
OSW/WMD, July 1, 1987.
OSWER I9481.00-6C
Document No. 4001 Status: Final
Guidanee Document For Providing Alternate Water
Supplies, prepared by OERR, February I, 1988.
OSWER #9355.3-03
Document No. 4002 Status: Final
Interim Final Guidance on Removal Action Levels at
Contaminated Drinking Water Sites, prepared by
OSWER/OERR/ERD, October 6, 1987.
OSWER #9360.1-01
13
-------
Document No. 4003 Status: Final
Quality Criteria for Water 1986, prepared by Office of
Water Regulations and Standards, May 1, 1987.
EPA-440/5-86-001
Document No. 2301 Status: Final
Carbon Absorption Isotherms for Toxic Organics,
(Secondary Reference), prepared by R.A. Dobbs, MERL and J.M.
Cohen, MERL, April 1, 1980.
EPA-600/8-80-023
Document No. 1005 Status: Final
Information on Drinking Water Action Levels, (Secondary
Reference), prepared by T. Fields Jr., OSWER/ERD, April 19,
1988.
Attachments: 1. Memo: Releases from Lawfully Applied
Pesticides
2. Memo: DBOP Contamination
3. Guidance for Ethlene Dibromide in Drinking
Water
RISK ASSESSMENT
Document No. 5000 Status: Draft
AT SDR Health Assessments on NPL Sites, prepared by
Department of Health and Human Services/ATSDR, June 16, 1986.
Document No. 5001 Status: Final
Chemical, Physical, £ Biological Properties of
Compounds Present at Hazardous Waste Sites, prepared by
Clement Associates, Inc., September 27, 1985.
OSWER #9850.3
Document No. 5002 Status: Final
Final Guidance for the Coordination of ATSDR Health
Assessment Activities with the Superfund Remedial
Process, prepared by J.W. Porter, OSWER/OERR and ATSDR, May
14, 1987.
OSWER #9285.4-02
Attachment: Same Title, Dated 4/22/87.
Document No. 5003 Status: Final
Guidelines for Carcinogen Risk Assessment (Federal
Register, September 24, 1986, P. 33992), prepared by
EPA, September 24, 1986.
Document No. 5004 Status: Final
Guideline* for Xxposure Assessment (Federal Register,
September 24, 1986, p. 34042), prepared by EPA, September
24, 1986.
14
-------
..*-
Document, No. 5005 Status: Final
<7u.f
-------
Document No. 5011 Status: Final
Fufclie Bemltb Risk Evaluation Database (POKED),
(User'a manual and tiro diskettes containing tne
dBasellT plus system are included;, prepared by
OERR/Toxic Integrating Branch, September 16, 1988.
Document No. 5012 Status: Final
Role of Acute roxicity Bioassaya in the Remedial
Action Process at Hazardous Vast* Sites, prepared by
L.A. Athey, et al, Pacific Northwest Laboratory and W.E.
Miller, Corvallis Environmental Research Lab, August 1, 1987.
EPA-600/8-87/044
Document No. 5013 Status: Final
Suparfund exposure Assessment Manual, prepared by OERR,
April 1, 1988.
OSWER #9285.5-1
Document No. 5014 Status: Final
Superfund Public Health Evaluation Manual, prepared by
OERR and OSWER, October 1, 1986.
OSWER #9285.4-1
Document No. 5015 Status: Draft
Toxicology Handbook, prepared by Life Systems, Inc. and
T.E. Tyburski, OWPE, August 1, 1985.
OSWER #9850.2
Document No. 8000 Status: Final
Xndangeraent Assessment Guidance, (Secondary Reference),
prepared by J.W. Porter, OSWER, November 22, 1985.
OSWER #9850.0-1
COST ANALYSIS
Document No. 6000 Status: Final
Remedial Action Costing Procedures Manual, prepared by
JRB Associates/CH2M Hill, ORD/MERL, and OSWER/OERR, October
1, 1987.
EPA-600/8-87/049
Document No. 6001 Status: Final
Removal Co*t Management Manual, prepared by OSWER/OERR,
April 1, 1988.
OSWER #9360 0-02B
Document No. 1003 Status: Final
Environmental Re vie* Requirements for Removal Actions/
(Secondary Reference), prepared by OERR/ERD, April 13, 1987.
OSWER #9318.0-05
16
-------
COMMUNITY RELATIONS
Document No. 7000 Status: Final
Community delations in Super fund: A Handbook (Interim
Version), prepared by OERR, June 1, 1988.
OSWER #9230.0-038
Attachment: Chapter 6 of the Community Relations Handbook,
11/3/88
ENFORCEMENT
Document No. 8000 Status: Final
Sndangerment Assessment Guidance, prepared by J.W.
Porter, OSWER, November 22, 1985.
OSWER #9850.0-1
Document No. 8001 Status: Final
Interim Guidance on Potentially Responsible Party
Participation in Remedial Investigations and
Feasibility Studies, prepared by J.W. Porter, OSWER, May
16, 1988.
OSWER #9835.la
SELECTION OF REMEDY/DECISION DOCUMENTS
Document No. 9000 Status: Final
Jnteria Guidance on Superfund Selection of Remedy,
prepared by J.W. Porter, OSWER, December 24, 1986.
OSWER #9355.0-19
Document No. 9001 Status: Final
RCRA/CERCLA Decisions Made on Remedy Selection,
prepared by M. Kilpatrick, Compliance Branch, OWPE, June 24,
1985.
17
-------
TABLE OF CONTENTS
; : INTRODUCTION
: 0 OVERVIEW OF COMPENDIUM USE
: I USE BY EPA PERSONNEL .
: 2 USE BY THE PUBLIC
3.0 STRUCTURE OF THE COMPENDIUM
3.1 FILE STRUCTURE . .
3.2 INDEX STRUCTURE
40 UPDATING THE COMPENDIUM ;;
4.1 REGIONAL INPUT .' /5
4.2 KEEPING THE COMPENDIUM CURRENT 5;
LIST OF TABLES
3-1 COMPENDIUM CATEGORIES AND NUMBER SERIES
Appendix
(A) REGIONAL COMPENDIUM LOCATIONS AND ADMINISTRATIVE RECORD
COORDINATORS
( B) COMPENDIUM OF CERCLA RESPONSE SELECTION GUIDANCE DOCUMENTS
INDEX
60
-------
1.0 INTRODUCTION
This manual describes how to use the ^Compendium of CERCLA Response Selectmen
Gu;Ja.-.-i Documents' iComcendiumi. Each US. Environrr.ental Protection Agency >E?Ai
Regional Ot'fice maintains a compendium of guidance documents frequently used during
Je\elopment ind selection of response actions under the Comprehensive Environmental
Response. Compensation, and Liability Act (CERCLA).
EPA Headquarters used several sources to develop the initial Compendium. These sour;»s
included a pamphlet titled "Selected Technical Guidance for Superfund Project** (OS\v ER
Directive 9200.7-01); the OSWER Directive System; the Superfund, Resource Conservation and
Recovery Act (RCRA). and Enforcement dockets; the Hazardous Waste Collection Database; and
any existing regional compendiums. The documents in the Compendium are referenced in
administrative records for decisions on selection of response actions.
The administrative record described here is the body of documents that form the basis for
selection of a CERCLA res poos* actioa. Establishment of the administrative record is required
by §113(k) of CERCLA. An administrative record is the compilation of documents considered or
relied on by EPA in making a decision. Documents that EPA anticipate* will be included in the
administrative record when the decision on t response action selection is nude, are referred :o is
the 'administrative record file.* Guidance documents, or portions of guidance documents, that
are considered or relied on in selecting a CERCLA response action should be part of an
administrative record file.
Certain frequently used guidance documents may be referenced in the index to an
administrative record but not physically included in the administrative record file. The reference
should indicate the title and location of aay documents included in the administrative record but
maintained in the Compendium, which is kept at a central regional location. If a guidance
document that • aoc listed ia the. Compendium is considered or relied on in selecting the response
actioa, the dooHMstt matt be physically included in the administrative record Hie. The
Compendium amfct reduce the burden of copying and storing multiple copies of frequently used
guidanc*
Section 2.0 of this manual briefly discusses use of the Compendium by EPA personnel and
the public. Section 3.0 discusses the Compendium's file ind index structure. Documents in the
Compendium are filed ia three-ring binders and listed oa aa index which is generated by and
(1)
61
-------
maintained on a computer database. Procedures for updating the Compendium are presented .n
Section 4 0.
2.0 OVERVIEW OF COMPENDIUM USE
The Compendium is intended for use by two groups: EPA personnel, during :he sn.-jsi
of response action selection and administrative record development, and the public, for re vie* ;f
documents referenced in the index to an administrative record.
The user should note that although the term 'guidance' is often used in discussing the
Compendium, it does not imply that only guidance documents are included. The documents may
also be policies, memoranda, clarifications, cast studies, manuals, handbooks, reports, and other
documents used in the selection of CERCLA response actions.
2.1 USE BY EPA PERSONNEL
EPA penoonel use the Compendium primarily to reference frequently used guidance
documents that may be maintained in the Compendium rather than physically included in each
administrative record file. The index must indicate which documents are physically located in
the Compendium and must specify the location and accessibility of the Compendium. The index
should also reference only the specific documents in the Compendium that were considered or
relied on for the site for which the record is being compiled. The index should not reference the
entire Compendium.
2.2 USE BY THI PUBLIC
As with any unrestricted document included ia a record, the Compendium documents are
accessible for public review. Whea EPA publish** a notice of availability of aa administrative
record filt, that node* will include the location of the Compendium. The Compendium will be
available for ptjftfla. vfcwiaf at a ctotral rtfioaal establishment (for •xampU, the EPA Regional
Office), and Mftaf or near tat sitt for which the record is being compiled. (See Appendix A for
a list of the) tooHta of each refioaal copy of the Compendium aad the names of the Regional
Administrative; Record Coordinators.)
(2)
62
-------
3.0 STRUCTURE OF THE COMPENDIUM
Currently, the Compendium i$ organized into 10 categories. An overview Of the t-.;e
;:r-v:.:* .5 ^resented below, is well as 3 discussion of the mdet that identifies the doc-.T.ents
incluJej :.i jhe Compendium. This section also discusses the data elements identified ,n t.'-.e
indev The Jjta elements provide vital information on the documents included in the
Compendium and are contained in a database used to compile the Compendium and genera:e :.-«
index.
3.1 FILE STRUCTURE
The Compendium is structured according to 10 major categories that generally reflect the
various components of a response action selection under CERCLA. Table 3-1 lists the current
Compendium categories. The documents are further grouped into subcategories that indicate
their more specific nature, when applicable. For example, the remedial investigation/feasibility
study (RI/FS) section of the Compendium is broken down into more specific subcategories to
identify the wide range of RI/FS documents available. When the documents apply to multiple
categories, secondary references axe provided in the Compendium index.
Each document has been assigned a unique four-digit document number. The bound
documents contained in each category are arranged numerically. When a user wants to access a
document, he or she will find the document filed according to the assigned number. The four-
digit number series assigned to each category are also listed in Table 3-1.
3.2 INDEX STRUCTURE
- When aa administntivt record index refers to a document contained in the Compendium.
that document is also identified In the Compendium index. The index, contained as the first
document ia the> Coapeadiom, provides the information necessary to identify and locate the
desired docuaMel (For a copy of the current Compendium index, see Appendix B.)
i to aMet cases the user will know the title of the document rather than the number
assigned, the) index lira the documents under each category ia alphabetical order. An
alphabetical listing of secondary references follows the primary documents listed under each
category.
(3)
63
-------
LISTQFQRCA.NT7ATTQVAL ABB«EVTATTOVS ASP
IDENTIFIED is rur
Agency for Toxic Substances and Disease Registry
Center for Environmental Research Information
Contract Laboratory Program
US. Corps of Engineers
Exposure Assessment Research Division
Environment Criteria and Assessment Office
Environmental Monitoring Systems Laboratory
Emergency Response Division
Environmental Research Laboratory
Hazardous Response Support Division
Hazardous Site Control Division
hazardous Site Evaluation Division
Hazardous Waste Engineering Research Laboratory
Municipal Environmental Research Laboratory
Office of Environmental Engineering aad Technology
Office of Emergency aad Remedial Response
Office of Health Effect! Aawataeat
Office of Reseexca tad Drotopoeat
Office of Sols* ItM
Office of Solid) W>gej aad Emergency Response
Office of Wee* Profraai Eaforeemeat
Policy Aoalyiis Staff
Waterway* Experiment Station
Waste Management Divisioa
ATSDR
CERI
CLP
COE
HARD
ECAO
EMSL
ERD
ERL
HRSD
HSCD
HSED
HW1RL
M£RL
OEET
OERR
OHEA
ORO
OSW
OSWER
OWFE
PAS
WES
WMD
84
-------
APPENDIX P
MODEL TRANSNITTAJL COVER LETTER
[Same of Contact]
[Address]
Dear {Name of Contact]:
The U.S. Environmental Protection Agency is required by law to
establish administrative records "at or near a facility at issue."
This administrative record consists of information upon which the
Agency bases its selection of response action for a particular
Superfund site.
By providing the public with greater access to these records, it
is our hope that they will be better equipped to comment
constructively on site activities and to understand the issues
relating to the selection of the response action at the site.
we appreciate having the [Name of local repository] as the
designated administrative record facility for the [Name of site]
Superfund site. The enclosed record files, along with any future
documents relating to technical activities at the site should be
placed in the [Name of local repository] and be available for public
review. The record files should be treated as a non-circulating
reference - it should not be removed from your facility.
Also enclosed is a fact sheet to assist you and your staff in
answering questions posed by the public concerning administrative
records for selection of response actions at Superfund sites.
Please feel free to distribute this guide to the public.
To ensure the receipt of the administrative record file, I would
appreciate your completion of the attached Document Transmittal
Acknowledgment form. Please return this form in the enclosed self-
addressed, stamped envelope.
[*
Again, I would like to than* you for your cooperation with the
U.S. EPA in serving am a Field Repository. If you have any
questions or comments, please contact [Name of EPA contact] at
[Phone Ho.].
Sincerely*
[Name]
Administrative Record Coordinator
85
-------
APPENDIX
DOCUMENT
Proa: [Regional Office Address]
To:
£ Field Repository Address
aarsa
Adainistrativ. R.cord Nao« -
Adainistrativ.
Signed
Oat*
Pleas* return this fora to: [Regional
Office Address]
86
-------
APPENDIX H
PACT SHEET
R«cords in Local
The "administrative record" is the collection of documents which
fora the basis for the selection of a response action at a Superfund
site. Under section 113(k) of the Comprehensive Environmental
Response, Compensation, and Liability Act, as amended by the
Superfund Amendments and Reauthorization Act (CERCLA), EPA is
required to establish an administrative record for every Superfund
response action and to make a copy of the administrative record
available at or near the site.
The administrative record file must be reasonably available for
public review during normal business hours. The record file should
be treated as a non-circulating reference document. This will allow
the public greater access to the volumes and also minimize the risk
of loss or damage. Individuals may photocopy any documents
contained in the record file, according to the photocopying
procedures at the local repository.
The documents in the administrative record file may become
damaged or lost during use. If this occurs, the local repository
manager should contact the EPA Regional Office for replacements.
Documents may be added to the record file as the site work ,_
progresses. Periodically, EPA may send supplemental volumes and
indexes directly to the local repository. These supplements should
be placed with the initial record file.
The administrative record file will be maintained at the local
repository until further notice. Questions regarding the
maintenance of the record file should be directed to the EPA
Regional Office.
The Agency welcomes comments at any time on documents contained
in the administrative record file. Please send any such comments to
[name and address]. The Agency may hold formal public comment
period* at certain stage* of response process. The public is urged
to use these formal review period* to submit their comment*.
For further information on the administrative record file,
contact [name ejmft phone no. of Administrative Record Coordinator].
87
-------
APPENDIX I
MODEL NOTICE OP PCBLIC AVAILABILITY
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
ANNOUNCES THE AVAILABILITY OF THE
ADMINISTRATIVE RECORD
XYZ SITE, [Locality, State]
The U.S. Environmental Protection Agency (EPA) announces the
availability for public review of files comprising the
administrative record for the selection of the [remedial, removal]
action at the XYZ site, [Locality, State]. EPA seeks to inform the
public of the availability of the record file at this repository and
to encourage the public to comment on documents as they are placed
in the record file.
The administrative record file includes documents which fora th*
basis for the selection of a [remedial, removal] action at this
site. Documents now in the record files include [preliminary
assessment and site Investigation reports, validated sampling data,
RI/FS work plan, and the community relations plan]. Other documents
will be added to the record files as site work progresses. These
additional documents may include, but are not limited to, the RI/FS
report, other technical reports, additional validated sampling data,
comments and new data submitted by interested persons, and EPA
responses to significant comments.
The administrative record file is available for review during
normal business hours at:
[Repository Name] and U.S.EPA - Region Z
[Address and Phone I] [Address and Phone I]
•Additional information 10 available at the following locations:
verified sampling data - Contract laboratory,
and documentation [Address and Phone I]
GuidajsM document* and - EPA-Region 2
Leal literature [Address and Phone f]
written i laments' on the) administrative record should be) sent to:
(Was*], Of fie* of Public Affairs
U.S. IPA - Region S
[Address and Phone I]
88
-------
APPENDIX J
MICROFORM APPROVAL MZMORAKDCM
\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON. O.C. 20460
r
QGT2I
0 **$*! 4NO
SUBJECT: Microfilming t'.s Admir..atrative Record
-------
APPENDIX K
MODEL CERTIFICATION
IN THE [NAME OF COURT]
UNITED STATES OF AMERICA,
Plaintiff,
v.
:NAMES OF DEFENDANTS]
Defendants,
rnumber]
v.
[NAMES OF THIRD PARTY
DEFENDANTS]
Third Party Defendants
CIVIL ACTION NO.
CERTIFICATION OF DOCUKENTS
COMPRISING THE ADMINISTRATIVE RECORD
The United States Environmental Protection Agency (EPA) hereby
certifies that the attached documents constitute the administrative
record for selection of response actions under the Comprehensive
Environmental Response Coapensation and Liability Act or 1980, as
amended, for the (name of site] site in [City or County], [State].
By the United States Environmental Protection Agency:
In witness whereof I have subscribed ay
nsM this ___ dmy of . 19
in feitvi
rsionaturel
90
-------
APPENDIX L
PREAMBLE TO SUBPART I OF NCP
Subtan I—Administrative Record for
Selection of Rtsponst Action
Subpart I of :ht NC? ii entirely new.
II implement! CZRCLA requirements
concerning :he eitabluhment of 40
administrative record for selection of a
response action. Section 113(k|(l) of
CESCLA requires the establishment of
"an administrative record upon which.
the President snail base the selection of
a response action." Thus, today s rule
requires the estabiishmtnt of aa
idffliiustnuve record that contains
documents that form the basis for the
selection of a CERCLA response action.
b addition, secooa 113(k)(2)
the promulgation of reguiaaona
establishui) procedure* for the
participation of intarated penoos ia the
development of the admuustrtav*
record.
These rtfulations reftrdiaf th«
adouaistndve record iadud*
procedures for public parrtapedon.
Because one purpose o/ the
admmundve record is to fadiitatt
public iavoJvemcnt prc
-------
•T" cioie.'y
governing public participation General
community relations provision! found in
other parts of the proposed NCP art
addressed elsewhere in this preamble.
The following section* discuss the
major comments received on the
proposed subpart I and EPA's responses.
\crr.e: General comments.
Proposed r. .>. Subpart I deioiis how
she administrative record is asicmhled.
maintained ud made available to the
public.
Response to comments: Comments on
the administrative record regulations
included the suggestion that the
preamble provide • genera! statement
differentiating between the
administrative record and the
information repository.
EPA agrees that while subpart I
includes ample information on the
requirements of the administrative
record a brief clarification would help
to differentiate the record from the
information repository.
The information repository includes a
diverse group of documents that relate
to a Superfand site and to the Superfund
program in general including document!
on site activities, information about tha
site location, and background program
and policy guide*. EPA requires an
information repository at all remedial
action sites and any sJte where a
removal action is likely to extend
beyond L20 days. The purpose of tha
information repository U to allow opea
and convenient public aceaaa to
documents explaining the action* taking
place at a site.
The administrative record discussed
in this subpart by contrast ia tha body
of documents that forma tha basis of the)
agency's selection of a particular
response at a site, i.e~ document*
relevant to a response selection tact the
lead agency raiiaa on. aa well a*) .
relevant commanta and Information that
tha laad afteey comidan bvt may reject
in tha ultimate rtapoaat selection
decision. Thua. tha reoard wffl tadada
documantt tha laad aa*J tapper! agency
generate. PRP aod paMji somBents. and
technical and ailoapsMM tefarmatioo,
Thtaa document* easaatonelry ortriap
with thoet included ia At information
repository. The) administrative record
include* such lafermatioa as site*
spaafic data and comments, guidance
document* aad technical referencee
uaad ia tha selection of the response
action. The taroraadoa revosJtory auy
include gmldes to the Saperruad piece se,
background information, fact sheet*
praaa release*, mapa. and other
information to aid publk onderstanejng
of .1 s.'e -'joor.je .-esarcleis 3? v»-,e:.ier
ifie :nforrnanon has oear.ng on ;ne
eventual response selection at that site.
One commenter felt that there was no
mechanism for PRP* to participate in the
development of the administrative
record. In response. PRPs are given a
chance to participate in the development
of the administrative record throughout
its compilation. EPA will make available
information considered in selecting the
response action to PRPs and other*
through the administrative record file.
Interested persons may peruse the
record file, submit information to be
included in the administrative record
file, or may comment on it* content*
during the ensuing public comment
period
Same: Section 300.aOCf.ajL
Establishment of an administrative
record Section 30O410(a). Content* of
the administrative record.
Pmpoitdndv Section 113(k)(l) of
CERCLA states that the "President shaO
establish an administrative record upon
which the President shall baae tha
selection of a response action," EPA
used similar language ia I 300JOO(s) of
the proposed rule; "The lead agency
shall astabliah an administrative record
that contain* the documents that/0/m
th» batit for the selection of a response
action." (Emphasis added.) Section
300.8lO(a) state* that the
"administrative record Ola for selection
of a response action typically, but not la
all case*, will contain the following
type* of documents * * '." followed by
an enumeration of thoee documents.
Aetpo/ise te com/MfUr EPA's choice
of the phraae "fora the beats" la
f 300L*M(a) drew many comments. The
comments expressed cootens that toe
lead agency would have dM discretion
to include ia the sdmteistrative record
only thoee documents that support
£i*A a seiectad reaMdjr*
Tbeee oommefita appear to be baaed
pan**) -forma the basis oT means aa tt
waa ttaad ia tat propaiad ruia. Tat
statute deflaee the edministretti* record
aa the "record upon which dM Preaidenl
shall baae tha selection of a response
action," EPA'* tetant la defining dM .
record aa dM file that "contains dM
documents dat form the beau far the
•ejection of a response action" we*
•imply te reflect dM natatory language.
For example, an admiaistrettve record
will ooataia dM public cnnunenti
rabmitted oa dM p
If dM lead agency rejecta dM i
because dM lead agency ia rtqoind ta
consider theee comments aad reapond la
significant comments ia making • final
dectnoa. Tha. these comments else
forr. :r.e sas.s of' :.-.e f.r.*. .-.?:.---.-
selection decision. EPA ir.:e.-.ci -.-.a- •-
regulatory language defining the
administrative record file embody
genersl principles of administrative a-
concerning what documents are
included in an "administrative record
for an agency decision. As a result
contrary to the suggestion of the
commemer* the proposed definition c:
the administrative record does not .re.
that the record will contain only those
documents supporting the selected
response action.
A commenter asked that the phrase
"but not in all cases" be deleted from
i 300.«10(a). or specify the cases wne.-e
documents are excluded from the
administrative record. EPA believes it i:
better not to attempt to list excluded
documents in the NCP since EPA caano
possibly anticipate all the types of
documents that will be genersted for a
site or for future sites, and which of
these documents should be excluded
•xcapt ss generally described in
I M0410( b). It should be ooted for
example, that although a health
assessment dona by ATSDR would
normally be included in the
administrative record it would not be if
the assessment was generated by
ATSDR after the response is selected.
Others commented that certain
documents should always be included in
the administrative record EPA believes
that only a small group of documents
will always be generated for every type
of CERQLA site, tinea each lite is
unique. Other documents may or may
not be generated or relevant to the
selection of a particular response action
at a site. EPA understands that a
definitive list of required documents
would assist parties in trying to asMSt
the rnrnpletenese of the administrative
record, bat such a list would not be
practical Different slice require
different documents.
A related group of comments asked
that the administrative record always
indude certain documents, including.
specifically, "verified sampling data."
draft and "prededsionaT documents.
and technical studies. One comment
stated that "invalidated" sampling data
aad drafts must be'part of the
administrative record in tome
sioationa. Verified sampling data. i.e.
data that have gone through the quality
assurance aad quality control process.
wifl be tachadad ta the record when they
have been used ta dM selection of a
response acdaa. Invalidated" data, i.e..
data which have been found to be
inourretdy garnered are not uc«d by
EPA ta selecting dM response action and
should dMfefore not be included in the
92
-------
seen ir.rsugn iae qiu»:y cor.trei
^wnicn may in limited
..rcumsunces be considered by the
igency m selecting iht response action.
.111 EPA t poucy to avoid using
.invalidated data whenever possible.
Nonetheless, there are times when (he
-.eed for action aad tte lack of validated
-ia:a requires the consideration of sucn
iau in seleciL-.g an emergency removal
action. If luch data axe used, they will
De included .n the record.
Ln general, oruy final ducune.its are
.ncluded in the administrative record
Ties. Draft documents ire not part of the
record for • decision because they
generally are revised or superseded by
subsequent drafts and thus are not the
actual documents upon which the
decision-maker relies. However, drafts
(or portions of them) generally will be 4
included in the administrative record for
response selection if there is no Anal
document generated at the time the
response ia selected and the draft la the
document relied OIL In addition. • draft
which has beta released to die public
Tor the purpoe* of receiving comments ia
also pa/t of the record, along with any
cotxuneau received.
Similarly, predacisional aad
deliberative document*, such as stiff
notes or staff policy recommendations
or opuoo* paper*, dp not generally
belong ia the administrative record
becauae they merely reject internal
deliberations rather than flp^l decision*
jt factual information upon which the
response selection is based However.
pertinent factual information or
documents statins] final decisions on
response selection issue* far a sit*
:enerally would be included ia the
ecord.
Technical studies art also part of the
ecord. again, if considered by tat lead
•.gency ia selecting the response action.
"ha commenter seems to have
misinterpreted EPA's intent by eeauming
hat only factoal portions of a technical
study art part of the record. The) <
irudy. or relevant part of the study.
should be part of the record.
Anodier comment stated tot to
•dministrative record shoejU
any studies on coat cost-
permanence, and treetmeat tot tnderiit
the record of decision. Thttt studiee ar»
already part of tht rtmtdial
investigation aad feasibility etvdy.
which ia always indudtd la to record.
AAoihtr party stated that sampling
protocols should bt ia to
administrative record. Ssstpllna
protocols art pan of to M/FS wee*
plan, which ia also part of to
administrative record. Aad btcauat
::ae'jier. £PA us praviueci m ihu
nj.emiki/if that sucn grouped or serial
documents may be listed as a group m
the index to the administrative record
f:le.
A related comment requested (hat all
documents generated by contractors
should be induced in the record. Ia
response, any document that forms the
basis of a response selection decision
will be included in the administrative
record. It is immaterial who develops
the document— «t can be a contractor.
the public (including • PRP). a state or
EPA.
One commenter asked that ARAR
disputes involving a disagreement over
whether a requirement is substantive or
administrative be documented in the
record. Other comments stated that EPA
must ensure that complete ARAR
documentation and documentation of all
remedial options, not just the selected
remedy, be placed in tht record. Where
ARAR issues are relevant to response
selection, lead and support agency*
generated documents and public
information submitted to the lead
agency on thia issue would bt pan of
the record. The record will include
documentation of each alternative
remedy and ARAR studied during the
RI/FS process, aad the criteria used to
select the preferred remedy during tht
remedy selection process.
EPA also received sereral comments
stating that every document contributing
to decision-making should be part of tht
administrative record. EPA cannot
concur ia thia formulation of tht
administrative record since it Is ondear
what "contributing to" means and mat
phrase may bt overly broad. For
instance, tht term "contributing to*
could bt interpreted to mdude ell draft
document* Wading up to t Baal product
Thtet draft documents) do not generally
form to beei* of to response selection.
record iacitsdee doc&oeBts which fora
tht baste for to dtdaioa to select tht
response action. EPA be&evee dut moat
Mceoatb«daf " documents wiO bt
One "^^p*^' stated tot to heard
raakmf systeci (HKS) tafermetfoei
should bt bwraded la to edaaiaistretiv*
record far setecttoa of to reapoaae
acoeev Hperiflcilry. they eagjested that
interatel nteiMreoda. daily notee. t****
the orqaoai KRS score «bc«id be made
avaiiahae. The) Nettooei Prtortoee Uet
{NPU dodat ia • public docket aad
already ooattatee to relereat rmnidat
inforautiflek The) iaformadoo generally
rekvasutatouaiiasjofaaH»osithe
NPLto prdrminary tod not neceeaahrf
• n T.e NPL iociiet --a: .> .-»-..»-: -^ -
JelectKig the response *ct;on. ,t «.,! -e
included m the auminis:ra::v« r«cor9.
Another commenter stated that ui
materials developed and receiveo du.-.rq
the remedy selection process should be '
made a part of (he record, and itated
that the NCP currently omits ;nc:usion sf
transcripts. As noted above, cenim
documents simply w-.ll not be relevant to
the selection of response actions. EPA
will, as required by the siarute. include
in t.-,e record all those mater.ais.
inc.'jdiag trenscrpts. that form the basis
for the selection of a mponse action.
whether or not the materials support the
decision.
Several commenters asked :hat i>.e
lead agency be required to mail them
individual copies of documents kept m
the administrative record. These
requests included copies of sampling
data, a copy of any preliminary
assessment petitions, potential
remedies, the risk aaMiament. a list of
ARARs* aad notification of all furore
work to be done. Commenters alao
asked to be aerified by mail whan a Itad
ageacy begins sampling at a site and
when a coatractar M choaea for a
response action, la addition, many.
asked for the opportunity to comment on
the decaaeata mentioned above. A
related "•"•""T" suggested that EPA
maiataia a mailing list for each site and
mail copies of key documents in the
record to every perry oa die list
EPA believes that maintaining an
administrative record file in two place*.
in addition to a more general
information repository, with provisions
for copying faciliaee reflects EPA's
strong commitment to keeping the
affected public, including PRPs,
informed aad providing the opportunity
for public iavohremeat ia response
decisaoa-melung. Requiring EPA to mail
available ia to record file Is beyond
any statutory lequireaentt. unnecessary
due to to ready availability of tht
documents) ia the fiat, aad a severe
bodes) en Agency staff aad resource*.
' Most of to documents requested above
wifl generally bt available ia the
edmuustreti ve record for public review
aad copying. Additionally, tht lead
ageacy should maiataia a mailing list of
lultneUil persona n> whose key silt
iafonaaace) tad notice of site ectivitiee
caa bt mailed ea pert of their
coaaanairf reUttona plae for a site.
Oat ot eta interested that all PRP
cosMBtatt end commenta by odter
iaiereettd partfee bt included ia the
record regardkee of theif
93
-------
. ?«::? -
CZRCLA states that the President "shall
establish an administrative record upon
• which tht President shall base the
selection of a ratponse action." Section
SOOaoOfc). entitled "Administrative
record for stats-lead sites.1* requires that
states compile administrative records.
for stats-laid cue* in accordance with
the NCP.
/tespoaee to COOUM/I* Several
commenter* believe that the new
administrative record procedure* place
an onerous burden on the state, and
reqatst that state requirements such as
Open Record* Acts should be allowed
as a substitute for compliance with
subpart L Another commenter
recommended that states be allowed to
determine whether a complat*
administrative record is needed a tor
near die site when a site ia state-lead.
Where a response Is taken under
CEXCLA at a state-lead site. EPA it
ultimately responsible for the selection
of a response action. Therefore, under
section 113(1;). EPA must establish aa
administrative record for die CZRCLA
response action at the site, and most at
a minimum, comply win subpart L
There may be many different ways of
compiling administrative record* and
involving the publk in the development
. . .
::ji«;. Lead *?•-.:.«». ,.-.c..c.-? ;•; .<
may provide additional Py0lic
involvement opportunities at i«-e '.i
response to whether or not stags' »»-
maintain a complete administrative '*
record at or near the site. EPA beheve»
that states must have such a record n
order to meet CERCLA section U3(kj
requirement*.
EPA has included a minor editora!
change in | 300.800(c) to reflect that a
state compiles and maintains an
administrative record for rather '.San ai
a given site.
Final rule: EPA is promulgating
\ 300.800(c) as proposed, except for a
minor editorial change in the first
sentence a* follows: "I/a state is the
lead agency for a site, the state shall
compile and maintain the adnuuiu-acv «
record for the selection of the response
action for that sit* in accordance with
thi* subpart."
Mime/ Section* 300.800{d) and
30(X«00(*). Applicabiliry.
Pnpottdru/e: Section 300.800fd)
slate* that the provisions of subpart I
apply to all remedial action* whert -.he
remedial investigation began ther she
promulgation of these rule*, and for all
removals where the action
memorandum i* signed after the
promulgation of these rule*. Section
30OaOO(d) also proposes that "(TJhis
subpart applies to all response actons
taken under section 104 of CZRCLA or
sought secured, or ordered
administratively or judicially under
section 106 of CERCLA." Section
300JOO(e) state* that the lead agency
will apply subpart I to all response
actions not included in f 30O400(d) "to
the extent practicable."
Response to comaitnts: One
commenter argued that the applicable
provisions of subpart I should be
amended to require agenda* to comply
with die subpart for all sites when the
remedy selection decision was made
more than 90 days after proposal of the
revised NCP for comment Another
comment stated that | 300JOO(*) be
revised to state that lead agencies tout
comply with subpart I in any future
actions they take, and that all lead
agency actions must comply with
subpart 1 "to the maximum extent
practicable."
In response. EPA will adhere aa
closely aa possible to subpart I for sites
where the remedial investigation beg en
before iheee regulations are
promulgated. EPA will not however.
require that theee sites comply with
requirements which, because of the
94
-------
:o. For e*an-.p.s, *r.cer -he
final ruie the administrative record file
must bi available at (he beginning of (he
remedial investigation phase. U these
regulations an promulgated when a site
is m the middle of the remedial
investigation procevi. and the
adrrunLstritive record is not yet
available, the lead agency cannot «t this
point comply with these regulations.
Additionally. EPA believes that adding
language to proposed NCP | 300 800(e)
to state mat lead agencies will comply
with provisions of lubpnn I in anv
future tenon altar promulgation of the
new rule i» unnecessary and redundant
compliance will be legally required, and
applicability to all future responM
actions ta implicit in the rule. Likewise.
insertion of the word "maximum" before
the phrase 'extent practicable'" ia
unnecessary sine* it wo«id give
additional emphasis but would not
lubatantiveiy change the requirement or
th« meaning of the rule.
One comment agreed with EPA's
interpretation that subpart I applies to
ail mpooM actiooa "sought, secured or
ordered administratively or judicially."
but othen disagreed. Several tuied that
the tera "Judicially" should be delated
from | MOJOXd) becaua« they arfue
that response actiona ordered judicially
would rtetjvt dtnovo adjudication.
inatead of administrative record raview.
CERttA sactioa 113(flUJ state*: "In any
judicial action under this Act judicial
review of any isauea concerning the
adequacy of any reaponae action taken
or ordered by the President shell be
limited to the administrative record."
Commeeter* contend that this sectioa
does not apply to injunctive actiona
under CERCLA sectioa 106 because
thesji are not actiona "taken or ordered
by the President" To the contrary, the)
•election of a response action ia •
••response action taken •• • by the
President" Accordingly, sectioa 113(1X1)
requires that judicial review of the)
response action selected by the) egaacy
is "limited to the administrative) record.*
Further, sectioa 113UJW sUpeiaaee oat
"In any Judicial action under this
chapter"—whether for iajwaotfw rellet
enforcement of an administralrve order
or recovery of response coets or
damages—e party objecting to "th«
President's dedsioa ia selecting the)
response aetioa" must demoastrata, "osi
the administrative record, that the)
dedsioa was arbitrary or caprtdoaa or
otherwise not la accordance with law.*
EPA nceioed several comaieata
objecting to EPA's determiaatioa that
{udldaJ review of aa endangermeat
.--.•i.- -*••: -.'. -.-ej . .-.<•
j-«.T..n.nri:i.« rscori 7>.s> .U'.ey --.ai
as a .Ti«t:er uf acmiautrative and
constitutional law. a finding of imminent
and substantial eodangerment is noi an
issue concerning 'the adequacy of the
response action." as stated in CERCLA
section U3(j). and therefore must
receive de nova review by a court. A
second comment requested that EPA
state in the regulation that review of
EPA's expenditures m the
rmplemeotatton of a remedy is da novo.
An assessment of endarvgerment at a
site is a factor highly relevant to the .
selection of a response action, and is in
fact part of the remedial investigation
(RH process central to the decision to
select a response action. Therefore, the
determination of endangerment (which
v«ill generally be included ia the
decision document) will be included in
the administrative record for selection
of a response action and should be
reviewed as part of that record, (EPA
notes that the term "endangerment
asMsiment" document has beea
• superseded by tha term "risk
assessment" document and while
assessments of endangerment at a site
are still conducted during me RL it la die
"risk assessment" document mat
becomes part of me record.) In response
to the comment that Agency
expenditures on a response action
should receive dt noro review. EPA
notes mat this Issue was not raised Ia
the proposed NGP. aad is therefore net
addressed IB the foal rale.
final ml* EPA is promulptteg tha
rule as proposed.
Noam Sectioa 300J08. Location of the
administrative record file.
PnpondruJ* Sectioa liaftXlJ of
CERCLA states that "the edminiatretive
record shall be available ta the public at
or aear the facility at issue. The
rtsairtanl also may piece duplicates el
the administrative record al aay other
locatfoa.* Secoaa JOOJOi ol tha
proposed NO provides five examatiaaa
far iaformatiea which need oot be
placed at or aear tha facility at tseuae
QJ»»»HM iad testing data, guidance
documeatSt publicly available technical
literature, docaataata ia the mnflnaorial
portioa of the file, aad emergency
removal acoooa lasoag leas than M
itar sapaortad limiting tha
amoaat of lafornattoa which must be
located at or aear the sita. bat maay
cammeatan staiad that every rlontoiaat
~,,m^tm •Atufc
ait part of tha record, should be located
at or aear the site aad agency
... „ .. ,.-e. ..
js»e."«d '.aai luc.-. -ACi-j.-on jice.— ...-.-
ac:ive public mvoivement ai -.-.e >,:« a.1(-
are contrary to statutory inient. Ar.oir.er
comment stated (hat requiring the
administrative record to be kept ui rw0
places, at a central location and at or
near the site, runs counter to the
statutory requirement of keeping a
record only *at or near tha facility «t
issue. * One cctnmenter e»fced th»t EPA
acknowledge that Indian mbal
headguarten may be a logical .place 'o
keep the administntive record when a
Superfund site is located on or oear an
Indian reservation. A final comment
requested that EPA endorse through
regulatory language that administrative-
records can be kept on microfiche or
other record management technology.
and have the equivalent legil validity to
paper records.
Requiring sampling data and guidance
documents to be placed at tha site is
both unnecessary and. in many cases.
very costly. Administrative records are
often kept at public libraries where
space is limited and cannot
accommodate voluminous sampling data
for large, complex sites. Summaries of
the data are mchided in die RJ/TS.
which Ia located at or near the site. In
edditton. requiring publicly anilable
technical literature at the site «nll
require copying copyrighted material, an
addfttoad expenditure of limited
Superfund dollars. Moreover. Agency
experience is mat. as yet reis lively few
people view the admiatstndr* record
file at or aear the site or reqwet review
of tee sempilng data or general guidance
document* listed la the index to the site
file.
However. EPA aas revised the role to
spaafy that if aa individual withe* to
review a segment Hated Ia the iodex
bet not available ia the file located at or
near the site, each document, if not
confidential will be provided far
lacmsseti ia dke file open /vovot The
ladivldaal will not need to submit s
Freedom of Information Act Request in
order to have the mfbrmation made
available far review ta the file seer me
site. EPA befievee that provision of such
docuaeets ta the file near me site upon
request meets the) requirement of
CZJtCLA sedaoa 113(k) that me record
be "available" at or near the site, ta
eddlaaa, this rale does aot bar lead
sgeaaes boat deddtef to place this
iafiaroadoa la tha site file without
waiting tar a request Lead agencies are
simulated to place as much of this
(anrmatioa at or near the sits aa
practical, aad ta antfttnf4"11*
Informs ttaa si sites where there is a
95
-------
a.-.C :r •-» .r.fsrr.a: jn
EPA's task without compromising -jse
integrity of the record.
Finalrult: l. EPA is promulgating
51 300.810(b), (c) and fd) as proposed
with a minor editorial change to ciarfy
the first sentence of f 300.8lO(d).
2. The following language :i added ro
I 300.8lO(a)(6) to provide for lilting
grouped document* in the
administrative record file index: "If
document* are cu«tomaniy grouped
together, aa with sampling data c.iaji cr
custody document*, they may be listed
a* e group in the index to the
administrative record file."
Nam* Section 300.815. Administrative
record file for a remedial action.
Propettd nit: The term
"administrative record file" is used
throughout the proposed NCP. Section
300.815(i) proposes that the
•dminiitrative record file be made
available for public inspection at the
beginning of the remedial investigation
phaM.
Rfspent* to comment*: EPA received
several comment* objecting to the
concept of an administrative record We.
They objected bacausa there is no
statutory authority for establishing a
flla. and because they were concerned
that th* lead igeaey could edit the file,
•pacifically by deleting public and PR?
comment* aad information that do not
rapport tha response action ultimately
cho*ae by EPA. and that these
comments and information would not
remain a part of tha final adminuu-ativ*
record.
The iterate require* the President to
establish an adminiatrstiv* record.
Under nbpart i of th* NCP. th*
•dminiitrativa record Ola is the
macfaanism for compiling, and will
contain, tha administrative record
required by Mction 11300- On* reason
EPA adopted tha concept of an
•dministradva record file ia that EPA
fait that It nay b* confusing- or
wfTu"<<'t to rafar to aa ongoing
compilation of documents aa an
"admteistratfr* record" until th*
ia complete. Until tha
response action haa bean selected, there
96
-------
•--.a: ;ec:sion. Thus. :o avoid c:eat;r.g :.-.e
impression that the record ;j corr.oiete at
any time pnor to the final selection
decision, the set of document! is
referred to «i the administrative record
file raiher than :he administrative
record.
However. :h;s does not mean, as the
comments appear :o suggest, that the
lead agency may 'edit" the
administrative record file Ji a manner
that removes corr.T.ents ar.d iecr.n-.cal
data simply because they are not
supportive of the final selection
decision. Any comments and technical
information placed in the record file for
• proposed response action and relevant
to the selection of that response action.
whether in support of. or in opposition
to. the selected response action, becomt
part of the administrative record for the
final response selection decision. Such
materials will remain in the
administrative record file, and will
become part of the final administrative
record. However. EPA believes that aa a
matter of law documents that are
erroneously placed in the administrative
record file (e.g.. document* that have no
relevance to the response selection or
that pertain to aa entirely different site I
would not necessarily become part of
the final administrative record.
EPA received additional comment*
stating that the administrative record
file should be available before the
beginning of the remedial investigation
phase. These comments suggested that "
the file be available; When a site ia
entered into the CERCLIS data base
when the MRS score is calculated; when
proposed for inclusion oa the NPL: after
the preliminary assessment report and
after the remedial site investigation,
EPA believes that tha point at which •
sit* is entered into the CERCLIS data
base i» too early to put any information
which would be relevant to a selection
of a reaponM action into a record 01*
because at this point th*tt ha* baaa no
site evaluation and thereto* ttttk :
factual information abovt tb* aita upoa
which to ba»* a retpona* ducMoa.
Interested parties caa ahaady find any
information on a sita that wooad bt
included at the point of th* MRS acoriaf
and placement oa the NFL ia tha NPL
docket which i* pvbttdy available. Th*
preliminary assessment %i*4 remedial
investigation stage* of a response are
premature for making tha administrativ*
record available at thaaa points thara ur
little iaformatioo nUvaat to response
selection oa which to comment or to
review. One* tha RI/FS work plan ia
approved, and th* RI/FS study begins—
including such activities a* project
>cc;..-j. ia'.a ca.iec:.;.-.. :•-,».
ana analysis of a.tematives—;.-.ere .s a
coherent oody of site-specific
information with relevance to the
response selection upon wruch to
comment. EPA believes that the
beginning of the RI/FS phase is the point
m the process when it makes sense :o
start a publicly available record of
information relevant to the response
seiection.
One comment suggested that
interested persons would have no
chance to comment on the formation of
the RI/FS work plan. The comment
suggested that the record file should be
available before the RI/FS work plan is
approved, e.g.. with a draft work plan or
statement of work. EPA disagrees.
Approved work plans are often
amended. An interested person may
comment on the scope or formation of
the work plan, and such comments can
be taken into account by the lead
agency and incorporated into a final or
amended work plan. Such comments
must be considered if submitted during
the comment period on the proposed
action,
Find rult: EPA Is promulgating
130O«lS{a) a* proposed. - ..
Namt: Section 300-815. Administrative
record file for a remedial action. Section
300.820(a). Admirustrative record file for
a removal action. .
Pnpotfd rult: Subpart I require* that
th* administrative record for a remedial
action be available for public review
when the remedial Investigation begins.
Thereafter, relevant documents an
placed ia th* record a* generated or
received Th* propoaed regulations alao
require that the lead agency publish a
newspaper notica announcing tha
availability of th* record file*, and a
second nfttlrt
-------
•-? —r.T-i.-. •¥ -• <-.,:-» :cc"i..-*;cr or
.-•r;r«. i.:e Tir.*ger. to ensure 'J2*t lae
•score :oc«iion chcttn n coovecieot to
ine public tnd thai copying fauliuti are
made available. Using public libraries to
houj« the rtcord ihould promote better
availability of tht rtcord duha| non-
working houn and on weekends. In
response to mandating diadlinn for
lead agcnciaa to place documents into
the administrative record file. Agency
guidance already dirtcu record
compiler* to place documents into tht
record Hie at loon at (hey art received
Agency pclicy additionally prescribes a
suggested tiaieframe for placing
documents ta the record file.. EPA
believti that mandatory deadlines ia
the NCP would do little to increase tht
rate at which record* are already
compiled. The decuioa to place free
copies of key documents in the record it
or near the site will be a lite-epecifle
decision baaed oa the level of
community interest in these documents.
Those who wish to make copies of key
documents or any document ffTi^irvtd
in the administrative record Gle should
already have access to copyinf
facilities
EPA received a comment requesting
that it publish a joint notice of
availability of the sdministratrve record
with a notice of availability of Technical
Assistance Grants. Anothar i
stated that tht removal site eraluatioe
and engineering evaluation/coal
analysis (EE/CA) must be iaehidad ia
the record for a nan-bma-cribcal . -
removal action.
Publiahiat notice of the availability of
the record m tandem with
announcements of the availability of
Technical Assistance Grants (TAGe) si
a good idea when TAGe art available
foe a removal action. Tht TAGe,
however, an generally designed to'
support dttsan Involvement in terhniral
issue* for eittt undergoing remedial
actions. Tht one-year. S3 million
limitations on removals and tht merited
number of alternatives usually fMttweii
make further expense oo • •acaasoal
advisor lees beneficial thaw M Bigfct ba>
for a longnem remedial sjejtkJB, As tar
placinf the removal site vmJHttoe and
EE/CA in the administrative rteord.
EPA agrees that generally nek
documtfits would bt pert of tht)
administrate rtcord for tht removal
action.
Finally. EPA ia making a minor chauift
to tht language of | 300J20(t)(4). EPA It
substituting tht term "decision
document" ia place of actioo
memorandum to aDow for situations
whart tht agency's decision document
for « :e=svij «c:.oc .1 act r.4.-e- ^
ac:;on memorandum,
Final ml* l. The Mcond sentences of
H )oaais(b). m&gxeiu) and
300.&ZO(b|U) art revised to reflect the
new language on responding to
comments as follows: The lead agency
is encouraged to consider and respond.
ss appropriate, to significant comments
that were submitted prior to the public
comment period."
2. In | )00.«20(e)(4). the term "decision
document" is substituted for "action
memorandum."
3. The remainder of I 300420{a) ia
promulgated as proposed.
Atone,- Section 300.620(0).
Administrative record file for a removal
action—omt-critical aad emergency.
PmpoitdruJ* Section 30O620(b)
outlines steps for public participation
tnd administrative record availability
for time-critical and emergency removal
responses (53 PR 81516): "Documents
included ia tht administrative record .
file shall be made available for public
inspection no later than 60 days after
initiation of on-eite removal activity." at
which point notification of the
availability of the record must be
published. The lead agency then. at.
appropriate, will provide a public * <
comment period of not lass than 30 days
oa the selection of tht response action.
RttpenM to eemme/jav Several
comments suggested that public
^mm<»^ requirements im^^y
I 300J20(b) wen unnecessary and.
burdensome, especially the requirement
to publish a notice of the availability of
^frft record. Qpe oommeat ire/titd that
requiring public notification of both
record availability and of a site's
inclusion oa the NPL wee uaaacesaary .
tupUcaUve. Another i
stated that tht rec^iremania for pabUe
notificatioB aad paabc *~«~-i» art not
approarlatt tar all tfme rrlrlril istinial
administrative record be a v«ikok lor
rtrltw only for thotettms irltical
i saint si aetioat that do rtcpfet pobtta
statsjd that tat rtqoinmtat to pobUah a
nodes of availability of tat
idntalstralrvt rtcord for afl Him i rlHi al
removal actSoat bt ellm mated k favor
of maldafth* record available bat not
parted, sines seoe time-critical removal
actions art completad before a pubUe .
commtat period could bt held. Othtn
aaktd that tht publk oasaauat period
b a corns mandatory, or at least
mandatory for resaoval acttrltiet not
already cemaltttd at dM Haw tht rtcord
is madt availabla. Aaothar rnrnatnt
rtqutstad that tht rtcord bacomt
xjt:i-.ion of 3n-»it . ..
btcauie the current 60-cay penod
prevented the consideration of coy pre>
work comments. A second comment
supported the AOday penod. Fuully. a
commeoter argued that it made UtUe
tense to make the record available i/t«r
90 days for an emergency responM
because the on-scene coordinator (OSC)
report containing most of the response
information tan t required to be
completed until one year following the
response action.
In general, the public participation
requirements under i 300-&20(b) are
designed to preserve both the fleubiiity
and discretion required by the leed
agency in time-en tical removal action
situations as well as EPA's commitment
to encouraging public participation and
to keeping an affected community well-
informed. EPA believes the notification
and comment periods required in
I 300430(b) provide for both Agency
flexibility and meaningful public
involvement Tht regulatory language
stating that "The lead agency shall as
appropriate, provide a public comment
period of not leas than 30 days"
provides the lead agency needed
flexibility when the emergency nature of
comment period *Tift*ffb!t
While EPA believes that it if
necessary to announce the avaiJabUiry
of tht administrative record for am*.
critical aad emergency removal actions
at well as aoo-tima-chticaJ actions. EPA
believes that requiring establishment of
the sdmiaistrative record aad publishing
a aotica of Us availability 30 days a/tar
initiating a removal action in all cases.
instead of "no later than 60 days a/tar
initiating a removal action," at
proposed, would bt somewhat
prtmanira. II hat been EPA's experience
that It often take* 60 days ta stabilise a
sitt (La, taott activities that help ta
redact, retard or prevent the spread of a
hazardous substance release aad help to
tiimiaatt aa immediete threat). EPA
bellrres that tht overriding task of
cmernscy response '*•*"• during **"'*
critical period matt bt tht undertaking
of necessary stabUixattoa. rather than
administrative duties. C^*1'" and
advertising tht rtcord before a sitt has
become stabilized would divert
emergency response teams from
oerotiag their fuD attention to a
rtsjpoatt. EPA believes that such
admaistrathrt procedures art better left
far after sitt stabiUsatiaa.
Publk aotiotrtquirameau for
aaaouaoagj tht availability of tht
edmmistndve rteord aad for a site's
ta me NPL art not duplicauve.
98
-------
li jc:.or.s wO
not e process prov cea ..i -.-.e
ruies—including the .loixe of
availability of the proposed ?ian ar.d -.-.«
administrative record for review. :ne
availability of all documents under:>:.-.g
the response selection decision for
review throughout the dec:ston-maki.-.g
process, the opportunity to comment :n
the proposed plan and all docume.n :.i
the administrative record Pile, ihe
requirement that the lead agency
consider and respond to all significant
PRP comments raised during the
comment penod. the notice of signif.cartt
changes to the response selection, and
the opportunity to submit, and
requirement that the lead agency
consider, any new significant
information that may substantially
support the need to significantly alter
the response selection even after the
selection decision—is sufficient to
satisfy due process. Moreover, the
opportunity provided for PRP and public
involvement in response selection
exceeds the minimum public
participation requirements set forth by
the statute. Placing a reasonable limn or,
the length of time in which comments
must be submitted, and providing for
case-by-case acceptance of late '
comments through I 300.8i3(c). does no.
infringe upon procedural rights of PRPs.
One commenter asked that the
permissive "may" in | 300.822(a) be
changed so there is no lead-agency
discretion over whether to add to the
administrative record documents
submitted after the remedy selection.
and stated that additional public
comment periods as outlined in
I 300J2S(b) should aot be only at EPA s
option. A related comment stated that
the multiple qualifiers in I 30Oa23(c).
including the phrases "substantially
support the need" and "significantly
alter the response action" (93 FK 31316).
grant EPA overly broad discretionary
power* over what documents may be
added to dM record. The commenter
suggests deleting me word '
"subetaadally." aa well as stating that
all comment*, even those disregarded by
EPA. should be included in the record
tar the purpose of judicial review. EPA
disagree* that the word "may" in either
1300J23(a) or | WU23(b) i* too
permissive. Section 30OJB3(b) of the
proposal was simply intended to clarify
the load agency's implicit authority to
hold additional public comment periods.
ia addition to those required under
subpart I Car ROD amendment*.
whenever tho load agency decides it
would be appropriate. Because these
additional comment period* are not
99
-------
•^.-...-••j ?> >'i-.:e :r 'ta^.4- cr.. ire
.-err-..u:vf :«fijujge lirr.piy reflects
:.-.e .eaa agency s accretion witn reipecJ
to ihese acaition*! public involvement
opponunities. Similarly, lead-agency
discretion to add to th* administrative
record documents submitted after a
decision document ha* been signed
provides the lead agency the option to
go beyond the ramunum requirement*
for public participation outlined in the
statute. In response to requests to delete
the qualifiers in § JOO.SiSfc). this
language 1.1 intentionally designed to
define carefu'ly me circumstances in
which EPA HUM consider comments
submitted arter the response action ha*
been selected. This standard recognize*
CERCLVs ni«nJate to proceed
expeditious to implement selected
response icnona. but also recognize*
that there will be certain instance* ia
which significant new iaformatioa
warrant* reconsider*tion of the (elected
response action. Section 300429(c) ia
intended to provide a reasonable limit
on what comment* EPA must review or
consider after a decision ha* been made.
Several commenter* requested that
PRP* not identified until after the doat
of the public comment period should bt
allowed aa opportunity to comment oa
th* record wuhin 60 day* of EPA'*
notification of potential liability. EPA
make* significant effort* to involve PRP*
•* early ia die proceas as possible.
When PRP* are identified late ia the
process, they may provide EPA with
comments at that time. EPA wifl
consider comment* which arc submitted
after the decision document i* signed ia
•ccordanc* with the criteria of
i 300«25(c). Thi* t* true no matter whoa
the PRP i* identified ia tht procea*. EPA
believe* that the current rait ia
sufficient for granting thttt lata-
identifted PRP* tht opportunity far
submitting kit commanta for tht record.
Oat cooaaotar ctattd that i
information that confirm* or
substantiate* prior public i
should bt madt part of tat record. <
after a ROD I* signed. EPA to at*
required by Manila or i
consider that* cot
lead agency may.
consider poOROD oofaatoato it
consider* to bt *tgBtfeaa»-4B «rafea
case both tht cocnaitat aad tat lead
agency'* rsspaeat an part of tht record,
Finally. SPA to aiakiaf a minor Hi*up
to | JOOJUCb) oa additional pobife
commtat period* to clarify that, to
•ddltioa to commeata aad reaaoaaea to
comment*, docoaiesua •uaportfatj tha
request for aa additional oamataat
period, aad any dadaaoa deoananei
would be placed ia tht admiaiatnttva
:.iienoec' in me proposai. a ciar.ficauon
is necessary to ensure coruutency.
Final rule.- EPA is promulgtiunj
} 300 873 as proposed except for an
addition to the laat sentence of section
(b| as foliowr "All additional comment*
submitted during auch commtat period*
that are responsive to the requetL aad
any response to UCM comments, alonf
with document* supporting the request
and any final decision with respect to
the issue, shall be placad ia the
administrative record file."
Subport f—Uti ofDitptnoflti and
Other Chemical*
The following section* discus*
comment* received on subptrt J and
EPA'* response*.
Name: Section* 300-900-300.820.
General
ExitUng rule: Section 30QK1 described
the purpose aad applicability of existing
subpart H (DOW subpan ,'J. aad | 30042
define* the key term* used la tht '
regulation. Section 30O43 provide* that
EPA shall maintain a schedule of
dispenanta and other chemical or
biological product* that may be
•uthohzad for use on oil discha/ftt
called the "NCP Product Schedule."
Section 30O44 seta forth the .
•procedure* by which aa OSC may
authorise the use of product* lifted oa
the NCP Product Schedule. The aectioc
provides that aa OSC with coacumact
of the EPA representative to the RRT
and the concurrence of the state(i) with
jurisdiction over tht navigable waters
(aa defined by the CWA) poQatad by tho
oil diachafft, may authorize tht uat of
diapenaati. surfaoe i
oath*)
and biological addithret Utt
NCP Product Scb*iaU.
Thi* aocttoa alao provide* thai if the
OSC dtttasiaa* that the oat of a
eddittrets
•fly
to hamaa lift, andthartfai tmnmrttnt
tht OSC may oaiktanliy aothariaa tht
oat of aay prodoct, ladudiag a product
aot OB tht NO Product Scatdak. la
nch taataaots. the QBC moot Jaform tht
EPA MIT representative aad th*
•Jbcttd *tattt of tht aat of • aredact aa
•OOB a* poaaibk aad maal obtaia thear
fflBffifTf*^t for tht ""utd net of fh*
product oaet tat threat to hoataa life
hat ••btidtd. TaJa provision alimauMa
delay* ia potentially Ufe-threatesiat
•itoatfoaa, taca aa *piUt of highly
flammablt p*troseuai product* to
harbor* or atar iahahised artta.
AltaoBjgfa they will aot btUatsjd on tat
Scaeduku thJe *tcttoa alto providtt far
a.•.-.:.- zj-.cr. :i"e .s< -A : _—..-j
iaejv.j 30 a ii»*-oy<4s« :•>!$ Tie .i»
of iincing agents ,1 proniS.ied.
Section 30a64 explicitly encouragei
advance planning for the UM of
dispersants and other chemicals. The
OSC is authorized to approve the use of
dispenanta and other chemicals without
the concurrence of the EPA
representative to the RRT and the
affected states if these panics have
previously approved a plan ideniify.ni;
the products that may be used and the
particular circumstances under which
their use ia preauthonzed.
Section 300.63 details the data that
must be submitted before a disptnar.t.
surface collecting agent, or biological
additive may be placed on the NCP
Product Schedule. Section 300.86
describes th* procedure* for placing a
product on the Product Schedule and
alao sets forth requiremsnts designed to
•void possible misrepresentation or
misinterpretation of the meaning of the
placement of a product on the Schedule.
including the wording of a disclaimer to
be used in product advertisements ox
technical literature referring to
placement on the Product Schedule.
Appendix C detail* th* methods and
type* of apparatus to be used in-carrying
out the revised standard disperunt
effectiveness and aquatic toxidry tests.
Appendix C also seta forth the format
required for summary presentation of
product test data.
PmpotednJe: Proposed subpart ] is
very similar to subpart Hand[contains
only minor revisions. Section numbers
aad reference* to other sections and
subparts have been changed where
appropriate. Technical change* and
minor wording changes to improve
clarity have alao been mad*.
DexiafooBt formerly presented In
subvert H have been moved to aubpari
A. aad a new definition ha* been added
for miaoallaneoos oil spill control
agaatB. AeoordiafJy. a Uat of data
i*HeJf*nsnt« for miscellaneous apili
control agent* la proposed to be sdded
to 1300415. The definition for navigabl*
water* ia aa defined to 40 CFR 110.1.
Section 300410. which addressed
"AuthorbJBtioa of eee." was modified
(lightly m tat proposed regulation to
rmphasija tat importance of obtaining
tuuLarreao* for th* aae of diapenanta
aad other chemical* from tat
appropriate stale repreeantatirea to tha
Regional Raeponae Team {RRT) and the
DOC/DOi natural resource truitee* as
appropriate.' ^^^
torotvtema tf DOC/DOI trwtee*.
Many cosameattrs opposed tht
iactuaiaa of tat OOC/OOI mtatees ia
100
-------
APPENDIX
SUBPART I OF NCP
Suftoart I—•JMrrmnmtr*** KaeorU ror
SflteVCflOn Of RoMOOftA*9 AC0O4I
} 300.100 UUMMTMNt eaa for tha seJecoo* of a
response acuoa The lead i
compile and ""'«*»•"
-------
1: Pvianc.y a\ nidole technical
liieritw-e not generated for tie ute at
issue, iucb a* engineering textbook*.
article! from technical journals, and
toxicological profiles, need not bt
located at or near tht lite •( issue or at
the central location, provided that the
litenrure is Lilted ia the index to the
administrative record Bit or the
litenrure it c:ted in • document in the
record.
K' Document* included in the
confidential portion of the
administrative record file shall be
located coly in the central location.
(5) The administrative record for •
removal acuon where the release or
threat of release require* that on-site
removal activities be initiated within
hour* of the lead agency'* determination
that a removal it appropriate and oa-
tite removal activities c«a*« within 30
day* of initiation, need be available for
public inspection only at the central
location.
(b) Where documents are placed ia
the central location but not in the file
located at or near the site, such
documents shall b« added to the file
located at or near the lite upca request.
except for documents included la
paragraph (a)(4) of this section.
(c) The lead agency may make tht
administrative record file) available to
the public in microform.
{ 300410 Contents of the) tdMenMnflw
reoortree.
(a) Cor.tvtt*. Tht administrative
record file for selection of a retpoaae)
action typically, but not ia ail case*, will
contain tht following type* of
documents:
(1) Documents cootaiai&g lacteal
information, data and aaaJyds of tht
factual information, aad data that may
form a basis for tht atltcttoa o/a
response action. Such document* may
include verified sampling data, quality
control aad quality aaawmac*
documentation, chain of custody fnrme:,
site inspection re puts, preaiaxiaafy
a**tainaat aad aitt ere hi at! nn report*,
ATSDR health atawaaaMtB, olocuaveatt
supporting tht lead agatBry*
determination of tauaaMBt aad
subuantiai eadauMinitait, yr^H* health
evaluation*, and tawaafeal tad
—- evaJavttai.Iaadditfoa.for
roved nmhplan* for the)
the seiecjvon a! ihe rtspor.se ic'.ion.
Such documents may include guidance
on conducting remedial investigation*
and feasibility srudie*. guidance on
determining applicable or relevant and
appropriate requirements, guidance on
risk/exposure assessment*, engineering
handbooks, articles from technical
journal*, memoranda on the application
of a specific regulation to a tit*, and
memoranda on off-site disposal
capacity;
(3) Documents received, published, or
made available to the public under
f 300.613 for remedial action*, or
i 300.43) for removal actions. Such
documents may include nonce of
availability of the administrative record
file, community relation* plan, ^ropoted
plan for remedial actioa. notice* of
public comment period*, public
comment* aad information received by
the lead agency, and rtapoa*** to
significant comment*;
(4) Decision document*. Such
documents may include action
memoranda and record* of decision:
(5) Enforcement order*. Such - *
documents may include administrative
order* and consent decree*; and
(6) An index of tht document*
included in tat administrative record
file. If documents are customarily
grouped together, aa with sampling data
chain of custody documents, they nay
bt listed a* a group ia tht index to the)
administrative record file.
(b) Docuffifn* net inc/uoW la itu
adminittntin ncordfil* Tht lead
agtacy ia not required to Indadt
documents ia ta* edaBBisrtntiYt r^*'^ii
filt which &ao.e p^t;.;.-/ t-.t..t-.
ponion of me admmistrinvt .••core ••"*
The confidential or privileged docurre-
ittelf shall be piaced in the confide.-)-;*!
portion of the administrative record f.ie
If informatioa such a* confidential
business information, cannot be
summarized in * diiclosablc manner.
the information shall be placed only m
the confidential portion of the
administrative record file. All
documents contained in the confiderv:al
portion of the administrative record file
shall be listed in the index to the file.
fttOJll Admtnietrrttve record nie for e
remedial action
(a) The administrative record Hie for
the selection of a remedial action shall
be made available for public inspection
at the commencement of the remedial
investigation phase. At such tune, the
Iced agency shall publish in a major
local newspaper of general circulation a
notice of the availability of the
administrative record file.
(b) The lead agency shall provide a
public comment period as specified in
I 300.430(f)(3) to that interested persons
may lubmit comment* on the selection
of the remedial action for inclusion in
the administrative record file. The lead
agency i* encouraged to consider ud
respond a* appropriate to tignirlcant
comment* that were submitted prior to
~the public comment period A written
response to significant comments
submitted during the public comment
period shall bt included in the
administrative record file.
(cj Tht lead agency shall comply with
the public participation procedure*
required ia | 900430(0(3) and shall
mch compliance in the
admini*traHve record.
(d) Document* generated or received
after tht record of decision is tigned
shall bt added to tht administrative
record fib oady a* provided ia } 300423.
(a) It baaed on tht site evaluation, tht
leed agtacy determine* that a removal
actioa ia •ppropriat* aad that a planning
period of at Itcirt six months exists
before oa-altt removal activities must b*
initiated:
(1) Tht administrative record file shill
bt made available for public inspection
whta tht engineering evaluation/cost
102
-------
Federal
3..-,
analysis :E£,'CA) u made available for
puolic comment. At such time, the leid
agency shall publish in a major local
newspaper of general circulation •
notice of the availability of tht
administrative record file.
(2! The lead agen.y shall provide a
public comment period as specified m
3 ;00.413 so that interested persons may
submit comments on the selection of the
removal action for inclusion m the
administrative record file. The lead
agency is encouraged to consider and
respond, as appropriate, to significant
comments that were submitted prior to
trie public comment period. A written
response to significant comment*
submitted during the public comment
penod shall be included in the
administrative record Tilt.
(3) The lead agency shall comply with
the public participation procedure* of
i 300.«lS(m) and shall document
compliance with | 300.413(m)(3)(i)
through (iii) in the administrative record
Hit.
(4) Document* generated or received
after the decision document ia signed
•hail b« added to tht administrative .
record Tile only aa provided in | 300823.
(b) For all removal actions not
included in paragraph (a) of this section:
(1) Document* included ia the
administrative record file »haU b* mad*
available for public inspection no later
than 60 day* after initiation of on-tite
removal activity. At such time, the leed
agency shall pubiiah in a major local
newspaper of general circuit, tioa a
notice of availability of the
administrativt record file.
(2j The lead agency *haJL u
appropriate, provide t public comment
period of aot le*a dun 30 day* b«finniflf
at tht tine the administrative record We
ia made available to the public. The laud
agency ia encouraged to- consider and
respond, as appropriate, to •g>a)
(a) The lead agency may add
documents to the administrative record
file after the decision document
selecting the response action has been
signed i£
(1) The documents concern a portion
of a response action decision that tat)
decision document does, not address or
reserves to be decided at a later date: or
(2) An explanation of significant
differences required by } 300.433(c). or
an amended ~ec:sion document is
usued. in which case, the explanation of
significant differences or amended
decision document and all documents
that form the basis for the decision 10
modify !b« response action shall be
added to the administrative record file.
(b| The lead agency may hold
additional public comment periods or
extend the time for the submission of
public comment after a decision
document has been signed on any issues
concerning selection of the response
action. Such comment shall be limited to
the issue* for which the lead agency has
requested additional comment. All
addition*! comments submitted during
such comment period* that are
responsive to the request and any
response to these comment*, along with
documents supporting the request and
any final decision with respect to (he
istue. shall be placed in the
administrative record file.
(c) The lead agency is required to
consider comments submitted by .
interested persons after the dose of the
public comment penod only to the
extent that the comment* contain
significant information not contained
elsewhere ia the administrative record
file which could not have been
submitted during the public comment
period and which substantially support
the need to significantly alter the •. .
response action. Ail such comments and
any responses thereto shall be placed ia
the administrative record file. • .., .•
Subport >-Ute of Wapereavrta and
(a) Section m(c)
------- |