UNITED STATES ENVIRONMENTAL PROTECTION AGENCV
WASHINGTON. D.C. 20460
*'«< we*0"'
MAR
ornci or
SOLID WASTE AND CMCftGENCY MSPOMS
OSVER Directive I 9833.3A
MEMORANDUM
SUBJECT: Interim Guidance on Administrative Records for
Selection of CERCLA Response Actions
~
FROM: J. Winstcm Porter
Assistant Administrator
TO: Regional Administrators, Regions I-X
This memorandum sets forth the policy and procedures
governing administrative records for selection of 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) .
Attachment
cc: Director, Waste Management Division,
Regions I, IV, V, VII, and VIII
Director, Emergency and Remedial Response Division,
Region II
Director, Hazardous Waste Management Division,
Regions III and VI
Director, Toxics and Waste Management Division, Region IX
Director, Hazardous Waste Division, Region X
Regional Counsel, Regions I-X
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INTERIM GUIDANCE ON ADMINISTRATIVE RECORDS
FOR THE
SELECTION OF CERCLA RESPONSE ACTIONS
U.S. Environmental Protection Agency
Office of Solid Waste and Emergency Response
Washington, D.C. 20460
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19833.3A
TABLE OF CONTENTS
I. INTRODUCTION 3
A. Purpose and Scope of the Administrative Record ... 3
B. Judicial Review 4
C. Public Participation 5
II. PROCEDURES FOR ESTABLISHING THE ADMINISTRATIVE RECORD . . 6
A. Administrative Record Coordinator 6
B. Multiple Response Actions . . 7
C. Compilation 7
D. Index 8
E. Location 9
1. General 9
2. Special Documents 10
F. Public Availability 11
1. General 11
2. Remedial Actions 12
3. Removal Action . .... 13
G. Maintaining the Record 15
H. Confidential File 17
I. Copying 18
J. Micrographics 18
K. Certification 19
III. CONTENTS OF THE ADMINISTRATIVE RECORD 20
A. Remedial Actions 20
B. Removal Actions 23
C. Imminent and Substantial Endangerment 26
D. Public Comments 26
E. Enforcement Actions 27
1. Negotiation Documents 27
2. PRP Lead RI/FS 28
3. Administrative Orders and Consent Decrees ... 28
F. Excluded Documents 29
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#9833.3A
G. Draft Documents and Internal Memoranda 29
H. Privileged Documents 30
I. Guidance Documents 32
J. Technical Literature 33
K. Legal Sources 34
L. NPL Rulemaking Docket Information . .. 34
M. RCRA Documents 34
N. Post-Decision Documents . 35
IV. INVOLVEMENT OF OTHER PARTIES 37
A. States 37
1. State Involvement in Federal-Lead Sites . . . . 37
2. Federal Involvement in State-Lead Sites .... 37
B. Federal Facilities 38
C. ATSDR 39
D. Natural Resources Trustees 40
V. DISCLAIMER 41
VI. FURTHER INFORMATION 41
GLOSSARY 42
APPENDICES
Appendix A. Sections 113(j)-(k) of CERCLA 45
Appendix B. Model File Structure 47
Appendix C. Model Index 51
Appendix D. Model Position Description for Administrative
Record Coordinator 53
Appendix E. Compendium of Response Selection Guidance . . .55
Appendix F. Model Transmittal Cover Letter 59
Appendix G. Model Document Transmittal Acknowledgement . . 60
Appendix H. Model Fact Sheet 61
Appendix I. Model Notice of Public Availability 62
Appendix J. Microform Approval Memorandum 63
Appendix K. Model Certification 64
Appendix L. Preamble to Subpart I of the proposed NCP ... 65
Appendix K. Subpart I of the proposed NCP 73
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19833.3A
I. INTRODUCTION
A. Purpose and Scope of the Administrative Record
This guidance addresses the establishment of administrative
records under §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).*
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 the
involvement in establishing the record of parties outside the
Agency. Finally, this guidance includes a glossary of frequently
used terms and acronyms as well as several appendices.
Although written for use by the United States Environmental
Protection Agency (EPA), this guidance can be adapted for use by
State and Federal agencies required to establish administrative
records for the selection of CERCLA response actions. This
guidance is not intended as a treatise on general principles of
administrative law with regard to administrative records. This
guidance reflects, to the extent feasible, proposed revisions to
the National Contingency Plan (NCP) published on December 21,
1988 (53 FR 51394) (see Appendices L and M). The Agency may
refine or change this memorandum when it promulgates the
regulations in final form.
The administrative record established under §113(k) of
CERCLA serves two primary purposes. First, the basis for the
response selection is set forth in the record and under §113(j),
judicial review of any issue concerning the adequacy of a
response selection is limited to the record. Second, §113(k)
requires that the administrative record act as a vehicle for
public participation in the selection of the response action.
This guidance document discusses procedures developed to ensure
that the Agency's administrative records meet these twin
purposes.
The basis of the Agency's selection of a response action
must be documented in the administrative record. The record
should include the documents considered or relied on by the
Agency in making the response action decision for the site. For
*References made to CERCLA throughout this memorandum should
be interpreted as meaning "CERCLA, as amended by SARA."
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19833.3A
purposes of this guidance, documents considered by the Agency are
documents that were relied upon or comments which the Agency
solicited or received from interested parties and the public.
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 Agency;
o The record should include documents that form the basis for
the Agency's decision, whether or not they support the
Agency's 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: Administrative
Record Coordinators, Remedial Project Managers (RPMs), On-Scene
Coordinators (OSCs), enforcement staff, records management staff,
Regional Counsel, Community Relations Coordinators (CRCs), other
Federal agencies, States, CERCLA contractors, and the public.
The roles and responsibilities of these people and their
interaction forms an integral part of this guidance.
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 on the basis of an administrative record can
provide numerous benefits. Under §113(j) of CERCLA and general
principles of administrative law, the trial court reviewing the
Agency's selection of response action is limited to the facts as
set out in the administrative record. As a result, arguments
that potentially responsible parties (PRPs) or citizens raise for
the first time in court concerning the selection of a response
action should not be considered.
Record review saves time by limiting the scope of trials,
thereby saving the Agency's resources for cleanup rather than
litigation. Courts will not allow a party challenging art Agency
decision to use discovery, hearings, or additional fact finding
to look beyond the Agency's administrative record, except in very
limited circumstances. In particular, courts generally will not
permit persons challenging the Agency's'response decision to
depose Agency decision-makers, 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
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into different positions or have left the Agency. Judicial
review limited to the record will save the Agency the 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 §113(j)(2) of
CERCLA. Under that standard, a court does not substitute its
judgment for that of the Agency, but only overturns the response
selection decision if it can be shown "on the administrative
record, that the decision was arbitrary and capricious or
otherwise not in accordance with the law."
However, the extent to which the Agency attains the benefits
of judicial review limited to the record depends on the quality
and completeness of each record. If the record is incomplete or
fails to provide an adequate explanation of the basis for the
Agency's response action selection, the court may remand the case
to the Agency for reconsideration of its decision. Proper and
thorough compilation of the record will help avoid these results.
C. Public Participation
Section 113(k)(2) of CERCLA requires that the public have
the opportunity to participate in the development of 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 in the development of
the record and the response selection. Participation by
interested persons will ensure that the Agency has considered the
concerns of the public, including PRPs, in selecting a response
action. In addition, for purposes of administrative and judicial
review, the record will contain documents that reflect the views
of the public, including PRPs, concerning the selection of a
response action.
Without 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 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 Agency's consideration of this
information.
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II. PROCEDURES FOR ESTABLISHING THE ADMINISTRATIVE RECORD
A. Administrative Record Coordinator
Each Region should designate a person to be the
Administrative Record Coordinator. As delegated, the Record
Coordinator generally has the duty of ensuring the adequate
compilation and maintenance of the administrative record files.
The Record Coordinator will not be responsible for deciding which
documents are included in a record file. Those decisions should
be made jointly by the OSC or RPM and the ORC. The Record
Coordinator's duties ordinarily include:
o Developing procedures for the creation of record files;
o Ensuring notification of the availability of the record
files for public inspection;
o Ensuring availability of the record at the location at or
near the site;
o Coordinating efforts to obtain the necessary documents;
o Updating the record files and indices on a regular basis
(e.g., quarterly);
o Compiling information in a central Regional location;
o Indexing the record files;
o Ensuring availability of the record file for copying;
o Ensuring availability of validated sampling data, possibly
at a location other than that of the record files;
o Coordinating with ORC on questions of relevance and
confidentiality of documents submitted for inclusion in the
record files;
o Maintaining the confidential portion of the record files, if
necessary;
o Maintaining the Regional compendium of guidance documents
and technical references;
o Coordinating with States and Federal agencies on record
files compiled by them; and
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.
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The Record Coordinator must work closely with RPMs, OSCs,
enforcement staff, records management staff, Regional counsel,
community relations staff, and the Department of Justice (DOJ)
(for cases in litigation).
In the event that procedures associated with the compilation
and maintenance of the record are drawn into question 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
Cleanups conducted under CERCLA are often broken up into
distinct decision points within a total site response action.
For remedial actions, these separate decision points are called
"operable units." The response may be an action that fully
addresses an operable unit, an "interim action," or a removal
action taken before, during or after remedial actions.
In general, a separate administrative record forms the basis
for each of these distinct actions. Every Record of Decision
(ROD) or Action Memorandum must be supported by an administrative
record. 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
contemporaneously with the generation or receipt of pertinent
information regarding a response selection. All documents for
which there is no question as to the relevance and non-privileged
nature of the information should be placed in the record file,
entered into the index, and made available to the public as soon
as possible after generation or receipt of the documents. For
example, the remedial investigation/feasibility study (RI/FS)
workplan, 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 as to whether particular documents
should be included in the record file, such documents can be
segregated and reviewed at regular intervals (e.g., every 3-4
months). For example, draft documents or documents subject to
claims of privilege may be set aside for review by ORC and
appropriate staff. At critical times, such as prior to the
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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 may be updated while it is available for
public inspection. The additional documents should be placed in
the record file and entered in the index. It is not necessary to
hold a public comment period for each update. Any updates to the
record file should be made to all copies of the record file to
maintain consistency.
All documentation of the selection of the response action
should be in the record file when a decision document (i.e., ROD
or Action memorandum) is signed. Documents relevant to the
response selection but generated or received after the decision
document is signed should be placed in a post-document decision
file and may be added to the administrative record file in
certain circumstances (see section III.N.).
D. Index
Each administrative record file must be indexed. The index
plays a key role in enabling both 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, identifying documents located elsewhere,
e.g., included in the compendium of guidance documents (see
Appendix E). The index also provides a concise overview of the
history of the response action at the site.
The index also provides the 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 file.
The index should include the following information for each
document:
o Document Number
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).
o Author - Name and affiliation
o Recipient - Name and affiliation
o Document Date - date the document was finalized (or made
available if never finalized), not the transmittal date or
the receipt date.
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Document Location
The index can be organized either by subject or in
chronological order. 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.
Such updates should coincide with the periodic updating of the
record file and review of material for which there questions
about relevance or privilege (see section II.C.). The index
should be considered a "draft" index until the decision document
is signed, at which time the index for the record file should be
up-to-date.
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 should be available for public
inspection at the central Regional location. This copy of the
record file should be maintained in a docket room and available
for public inspection at reasonable times (e.g., 9-4, Monday-
Friday) . A copy of these files, with some exceptions described
below, must be located at or near the site, as required by
statute. In the case of an emergency removal, however, the
record file need be available for public inspection only at the
central location (see section II.F.3.).
The record file located at or near the site should be placed
in one of the 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
does not have sufficient space for the record file, any other
publicly accessible place may be chosen to house the record file.
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.
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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.).
If feasible, a master copy of the record file should be kept
at the Regional office or the central office of the lead agency.
The master copy of the record file should not be accessible to
the public in order to preserve the integrity of the record file.
The master copy of the record file may be maintained in microform
to conserve storage space (see section II.J.). If not feasible,
the Region will need to establish an effective security system
for the record file.
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 central Regional location, because of the nature of the
documents and the burden associated with maintaining such
documents in multiple locations. Such documents must, however,
be incorporated in the record file by reference (i.e., in the
index but not physically in the record file) , and the index must
indicate where the documents are publicly accessible.
Validated Sampling Data
Validated sampling data does not have to be located in the
central Regional location or at or near the site. 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 file. The
index must list the data summary sheets, reference the underlying
validated sampling data, and indicate where that underlying data
can be found.
Chain of Custody Forms
Chain of custody forms do not have to be located in the
central Regional location or at or near the site. As with
validated sampling data, 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.
Privileged Documents
When a privileged document is included in the record, it
should be kept in a confidential portion of the record file. The
confidential file should be kept in a -locked cabinet at the
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central Regional location. It should not be located at or near
the site. The index should identify the title and location of
the privileged document, and describe the basis for the asserted
privilege. A short (non-privileged) description of the
information in the privileged document should be inserted in the
portion of the record file available to the public and included
in the index. See also section III.H.
Guidance and Policy Documents
Guidance and policy documents may be kept in a compendium
located in the Regional office to eliminate the need for
reproducing copies of the same frequently used documents for each
site record file. The documents included in such a compendium
need not be physically included in the record file. The index
must indicate which documents in the record file are located in
the guidance compendium and specify the location of the guidance
compendium. The index should reference the specific documents in
the guidance compendium which were considered or relied on for
the particular response action. See also section III.I. and
Appendix E.
Technical Literature
Publicly available technical literature not generated for
the site at issue (e.g., an engineering textbook), does not have
to be located in the central Regional 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 central location
and at or near the site. See also section III.J.
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 Agency must comply with all relevant public
participation procedures outlined in §§113(k) and 117 of CERCLA;
the proposed NCP (see Appendices L and M) contains additional
guidance with respect to 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 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 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
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at issue. The notice should explain the purpose of the record
file, its location and availability, and how the public nay
participate in its development.
The notice should be published in a major local newspaper of
general circulation and distributed to persons on the community
relations mailing list. This notice should also be sent to all
known PRPs if they are not already included on the community
relations mailing list. 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 I contains a model notice of availability.
Such a notice may be combined with other notices for the
same site, such as a notice of availability of the community
relations information repository, if they occur at the same time.
Where desired, additional notice can be made in the Federal
Register. In addition to the required newspaper notice, the
public can be informed of the availability of the record file
through existing Agency mechanisms, e.g., general and special
notice letters, §104(e) information requests, and the community
relations mailing list.
F.2. Remedial Actions
The administrative record file for a remedial action must be
available for public inspection when the remedial investigation
begins. For example, when the remedial investigation/feasibility
study (RI/FS) work plan is approved, the 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 workplan, inspection reports, sampling
data, and the Community Relations Plan (CRP). The 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 central
Regional location and at or near the site at issue (see section
II.E.). As mentioned above, a notice of the availability of the
record file should be published in a major local newspaper when
the record file is first made available for public inspection.
In addition, the notice of availability should be sent to persons
on the community relations mailing list.
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 studied in the RI/FS and proposes a preferred
remedial action alternative;
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o Make the RI/FS report and Proposed Plan available at a
central Regional location and at or near the site;
o Publish in a newspaper a notice of availability and brief
analysis of the RI/FS report and Proposed Plan;
o Provide a formal comment period of not less than 30 calendar
days for submission of comments on the Proposed Plan; [Note:
the current NCP requires a public comment period of not less
than 21 days. The Agency has proposed in the revised NCP a
public comment period of not less than 30 days.]
o Provide the opportunity for public meeting(s) in the
affected area during the public comment period regarding 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 make such
transcript available to the public by including a copy 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.); and
o Publish in a newspaper a notice of the availability of the
ROD and make the ROD available to the public before
commencement of any remedial action as required under
§117(b) of CERCLA.
The Agency may hold additional public comment periods after
signing the ROD. 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.).
F.3. Removal Actions
Section 113(k)(2)(A) of CERCLA requires that the Agency
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.
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Non-Time-Critical Removal Actions
A non-time-critical removal action is a removal action for
which, based on the site evaluation, the 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
both at a central Regional location and at or near the site at
issue (see section II.E.j. 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.
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 inclusion in the record file. 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 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.)..
Comments generated or received after the decision document
is signed related to selection of the removal action should be
kept in a post-decision document file. They may be added to the
record file in certain situations (see section III.N.).
Time-critical Removal Actions • • • '
A time-critical removal action is a removal action for
which, based on the site evaluation, the 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. If feasible, the record
file should be made available earlier. The record file must be
available both at a central Regional 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 may be made available only at a central
Regional location and need not be made available at or near the
site.
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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.
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. 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 Agency oust
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.).
Whether or not the Agency holds a public comment period,
comments received by the Agency 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.
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.
The Agency prefers that each Regional Office 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.)
o Access to a copier
o Sign-in book
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. It also provides
documentation of the Agency's efforts to provide public access to
the record files. Pertinent information recorded in the book
should include:
o Date of visit
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o Name
o Affiliation
o Address
o Phone number
o Site documents viewed
o Cost of copied materials (if applicable)
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 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 cured. Such information can be included in an
informational fact sheet accompanying the record file (see
Appendix H) . In addition, the Record Coordinator should plan
reviews of the local record files on a systematic basis.
Where the site is a fund-lead or PRP-lead, EPA should retain
a master copy of the record file at a central Regional location.
Where a State is the lead agency at a site, EPA should assure
that the State maintains 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 proposed
regulations are silent concerning the duration of public
availability of the record file. The Agency's primary concern is
public participation in selection of the response action.
Following initiation of the response action, public interest in
background information other than the Record of Decision, RI/FS
or administrative record file 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 §§113(g) and (h) of CERCLA.
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Where there is cost recovery litigation or such litigation
is possible, the record file should be available at least until
the completion of pending litigation concerning the site.
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 nay be
subject to an applicable privilege (see section III.G.).
Whenever feasible, information relevant to the response selection
which is contained in a privileged document should be extracted
in a releasable manner and included in the publicly accessible
portion of the record file. The privileged document should be
included in a confidential portion of the record file.
The Administrative Record Coordinator should maintain a
confidential portion of the record file for such 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. A
short (non-privileged) description of the document and its
privileged nature should, where possible, be placed in the files
available to the public.
The confidential portion of the record file should be stored
in locked files at a central Regional location 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
coordinator should also maintain a log which will include the
time, date, document name, and identity of persons checking out
and returning materials to the confidential file.
A routine access list should be prepared for each record
file or, in the future, as soon as a new record file is
established. 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
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confidential files without the approval of the persons listed
above.
This policy and procedure for privileged materials does not
supersede any policy and procedures established by the Agency
under the Freedom of Information Act (FOIA), 5 U.S.C., §552, and
Agency regulations implementing FOIA at 40 C.F.R. Part 2. If the
requester is in close proximity to the record file, the Agency
may respond to FOIA requests for the administrative record 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 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 §117 be made available for public inspection and copying at
or near the site. Under §113(k)(2) (B) of CERCLA, these documents
must also be included in the administrative record. Under these
provisions of CERCLA, the lead agency must ensure that documents
in the record files are available for copying but does not bear
responsibility for copying the documents themselves. Therefore,
it is preferable that the record file should be located in a
facility which contains a copying machine (e.g., a public
library).
Alternatively, the Agency may arrange for copying on behalf
of a requester. The Agency may ask that requesters arrange for
copying by contractors or commercial copy centers who then bill
the requester directly.
The Agency should follow the FOIA regulations at 40 C.F.R.
Part 2 in determining the appropriate charge for copying.
Generally, copying fees should be waived for other Federal
Agencies, EPA contractors or grantees, and members of Congress.
The Agency should charge $.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 direct cost to the Agency.
J. Micrographics
The administrative record file may be maintained in
microform such as microfilm or microfiche. Use of micrographics
can significantly reduce the space required to store
administrative record files. In addition, micrograpics can
simplify the tasks of reproducing copies of the record 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 r.aintain the record f-iles, readers will need to
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be available at the Regional office and with the record file
located "at or near the site" to ensure public access to the
record files.
Microform copies of original documents are admissible 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. Thus, if the lead agency can
demonstrate that CERCLA records and microform copies of those
records are produced in the regular course of business, they
would 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 must still comply with the remaining provisions of
Chapter 6 of the EPA Records Management Manual (7/13/84).
K. Certification
The Agency must certify the completeness of the
administrative record when the record is filed in court.
Appendix K contains a model court certification.
Such certification should be signed by the Regional
Administrator's designee after consultation with ORC and DOJ.
Any certification of the record should be made by program staff
and not legal staff.
Although not required, the Region may 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.
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III. CONTENTS OF THE ADMINISTRATIVE RECORD
A. Remedial Actions
The administrative record for selection of a remedial action
should consist of:
o documents which the Agency 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.
As stated earlier, the administrative record file for the
selection of a remedial action must be made available for public
inspection at the commencement of the remedial investigation
phase. For example, when the RI/FS work plan is approved, the
Agency must place documents on selection of remedy generated up
to that point in the record file. Documents should continue to
be added to the record file until a decision document is signed.
Documents containing new information relevant to the response
selection but generated or received after the decision document
is signed should be kept in a post-decision document file and may
be added to the record file in certain situations (see section
III.N.) .
Typically, but not in all cases, the record for a remedial
response action will consist of the following types of documents.
The list below is neither a statement of requirements for each
record nor is it exclusive. The record file should include any
other documents not listed below which meet the general criteria
described in the first paragraph of this section.
Factual Information/Data
o Preliminary Assessment (PA) report
o Site Investigation (SI) report
o Approved Remedial Investigation/Feasibility Study (RI/FS)
workplan
o Amendments to final workplan
o Sampling and Analysis Plan (SAP): consisting of a quality
assurance project plan (QAPP) and a field sampling plan
(FSP)
o Sampling data: validated 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
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remedial action. Unvalidated data should be included only
if relied on by the Agency in the absence of validated data.
o Chain of custody forms
o Inspection reports
o Fact sheet or summary information regarding remedial action
alternatives generated when 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 Data summary sheets
o Technical studies performed for the site (e.g., a ground
water study)
o Endangerment assessment/risk assessment and underlying
documentation (see section III.C.)
o RI/FS (as available for public comment and as final, if
different)
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), and
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.)
o Technical literature (see section III.J)
Public Participation
o Community Relations Plan
o Proposed Plan
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 Documentation of public meetings: information generated or
received during meetings with the public (including PRPs)
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and 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.)
o Transcripts of public meetings: includes especially
meetings held during the public comment period on RI/FS,
Proposed Plan, and any waiver of ARARs under §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
o Responses to State and other Federal agency comments
Enforcement Documents (included if the document contains
information relevant to the response selection or public
participation in the response selection and does not pertain
exclusively to liability)
o Administrative orders
o Consent decrees
o Affidavits containing relevant factual information not
contained elsewhere in the record
o Notice letters to PRPs
o Responses to Notice letters
o §104(e) information request letters and subpoenas
o Responses to §104 (e) information request letters and
subpoenas
Other Information
o Index (see section II.D.)
o Documentation of State involvement: documentation of'the
request and response on ARARs, §121(f)(1)(G) notices and
responses, a statement of the State's position on the
Proposed Plan (concurrence, nonconcurrence, or no comment at
the time of publication), opportunity to concur in the
selected remedy and be a party to a settlement (see section
IV.A.)
o health assessments, health studies, and public health
advisories issued by the Agency for Toxic Substances and
Disease Registry (ATSDR)(see section IV.C.)
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19833.3A
o Natural Resource Trustee findings of fact and final reports
and natural resource damage assessments (see section IV.D.)
Decision Documents
o Record of Decision (ROD): final remedial action decision
document (including responsiveness summary)
o Explanations of significant differences (under §117(c)) and
underlying information
o Amended ROD and underlying information
The administrative record should both track the history of
the site and be understandable to the reader. Appendix B
provides a model file structure for organizing the record.
Appendix C contains a model index.
B. Removal Actions
The administrative record for selection of a removal action
should consist of:
o documents which the Agency 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.
For a time-critical removal action, the record file should
be available for public inspection as early as possible and must
be available no later than 60 days after initiation of on-site
removal activity. Documents prepared prior to the final decision
document must be placed in the record file and made available to
the public.
For a non-time-critical removal action, the record file must
be made available for public inspection when the EE/CA is
available for public inspection. Documents should continue to be
added to the record file from the time the EE/CA is available
until a decision document (i.e. Action memorandum) is signed.
For all removal actions, documents containing new
information generated after the selection of a response action,
other than comments made during the public comment period and
responses to those comments, should be kept in a post-decision
document file and may be added to the record file in certain
situations (see section III.N.).
Typically, but not in all cases, the record for a removal
response action will consist of the following types of documents.
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19833.3A
The list below is neither a statement of requirements for each
record nor is it exclusive. The record file should include any
other documents not listed below which meet the general criteria
described in the first paragraph of this section.
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: validated data obtained in support of 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 by the Agency in
the absence of validated data.
o Chain of custody forms
o Inspection reports
o Technical studies performed for the site (e.g., a ground
water study)
o Endangermerit assessment/risk assessment and underlying
documentation
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.)
o Technical literature (see section III.J.)
Public Participation
o Community Relations Plan
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 comr.ent
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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 also section III.D.)
o Responses to significant comments: responses to significant
comments received from the public concerning the selection
of a removal action
o Responses to State and other Federal agency comments
Enforcement Documents (included if the document contains
information relevant to the response selection or public
participation in the response selection and does not pertain
exclusively to liability)
o Administrative orders
o Consent decrees
o Affidavits containing relevant factual information not
contained elsewhere in the record
o Notice Letters to PRPs
o Responses to Notice Letters
o §104(e) information request letters and subpoenas
o Responses to §104(e) information request letters and
subpoenas
Other Information
o Index (see section III.D.)
o Documentation of State involvement (see section IV.A.)
o ATSDR health assessments, health studies, and public health
advisories (see section IV.C.)
o Natural Resource Trustee findings of fact and final reports
and natural resource damage assessments (see section IV.D.)
Decision Documents
o EE/CA Approval Memorandum
o Action Memorandum
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19833.3A
Amended Action Memorandum
The administrative record should both track the history of
the site and be understandable to the reader. Appendix B
provides a model file structure for organizing the record.
Appendix C contains a model index.
C. Imminent and Substantial Endangennent
Under §106 of CERCLA, the Agency may find the existence of
an imminent and substantial endangerment to the public health or
welfare of the environment because of an actual or threatened
release of a hazardous substance.
The determination of the existence of an imminent and
substantial endangerment is an important component of the
selection of the response action. Therefore, all documents
considered or relied on in making that determination, including
any endangerment assessment and its underlying documentation,
must be included in the administrative record file. If the
determination that there is an imminent and substantial
endangerment is properly documented in the record file, judicial
review of that determination in an action under §106 of CERCLA
will also be limited to the administrative record.
D. Public Comments
In general, the administrative record should document any
opportunity for public involvement in the selection of a response
action. All documents related to the opportunity (e.g., notices
and fact sheets), and relevant written comments received from the
public should be included in the record file to establish a
complete record for purposes of judicial review.
The record file should contain information brought to the
Agency's attention by the public. Reports, data and other
information generated by outside parties and submitted to the
Agency should be included in the record file. 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 Agency should request that substantive oral comments
(either in person or over the phone) be put in writing by the
commenter for inclusion in the record file. The commenter should
be advised that the obligation to reduce the comment to writing
rests with the commenter.
The 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 Agency's
consideration of such a comment may be-in the form of a written
response, or reflected by documented actions taken after
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receiving the comment, or even by changes in subsequent v@rsi©ns
of documents. If th® Agency prepares a written response to a
comment, the response should be included in the record file.
The Agency may notify eommenters that comments submitted
prior to a formal public comment period must be r
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*9833.3A
submitted by TRPs for consideration in selecting a response
and .axe considered or relied on in selecting the n
action. A privileged document which was considered or .relied on
in selecting the jespum.ii action should "be placed in "the
confidential portion rcf the ^record file. Such .a -document should
be summarized and the summary included dn the publicly •accessibl
portion of +*«» rprnrrt flip (see section II. B.). If tJ>f»
information cannot .be summarized in a disclosable manner, the
information should be placed in 'the confidential portion of the
record file only **"* listed in the index to «•>**> .file.
E~2. PRP-lead J2I/ES
Where a TRP is conducting the TEE/TS , -the TRP mist submit ell
-technical information on selection of -the remedial action
generated during the 3I/TS to the Agency. Technical information
includes sampling data, vorkplans, reports, and memoranda. The
Agency, and -not ±he PRP, vill establish the administrative record
(-see "Interim Guidance on Potentially -Responsible Party
Participation -in Remedial Investigations .and .Feasibility
Studies," May 16, 1988 - OSWER Directive No. 9835. !a) .
PRPs may be delegated responsibility for some record file
maintenance .activities, sur.h AS .housing the .files at or near the
site. PRPs cannot, -however, be responsible for decisions on what
documents comprise the record, because of, among other things,
potential for a ctmflict of interest.
E.3. Administrative Orders and Consent Decrees
.Final »«^m-i-n i i«<-T A LJI-V^ uj. Lit!! s BTJcii jJuiisHnt decrees issued yx iv
to selection of the response action (e.g. ordering a PRP to
conduct the "KI/TS) , 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
i>e 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.).
In such cases, the documents may be added to the record file in
accordance with procedures for post-decision dacnBents. Drafts
of administrative orders and consent decrees should not be
included in the record file.
Note that administrative orders must also be supported by an
administrative record. These administrative records are not the
same as administrative records for the selection of a response
action as described in this guidance. Some of the documents,
however, which form the basis for- a response decision may also
form the basis for -an order or decree. For example, some of the
same documents which were considered or relied on to make the
response decision embodied in a ROD will likely form the basis of
a de minimis settlement embodied in a consent -order. In such a
case, the record file which forms the basis for the consent order
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can reference the documents contained in the record file for the
response decision.
F. Excluded Documents
Certain documents should not be included in the
administrative record because they are irrelevant to the
selection of the response action. Documents should be excluded
from the administrative record if the Agency did not consider or
rely on them in selecting the response action.
Material beyond the scope of the record should be kept in
separate files maintained at the Regional office. 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 List (NPL) deletion information. If, however, these
documents contain information that is considered or relied on in
the response action selection and that 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 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 documents 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
in fact considered or relied on in making the response action
decision.
Drafts (or portions of them) and internal memoranda should
be included, however, in two instances. First, if a draft
document or internal memorandum is the basis for a decision
(e.g., the draft contains factual information not included in a
final document, a final document does not exist, or did not exist
29
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19833.3A
when the decision was made) , the Agency should place the draft
document or internal memorandum in the record file.
Second, if a draft document or internal memorandum is
circulated to an outside party who then submits comments which
the decisionmaker considers or relies on when making a response
action decision, relevant portions of the draft document or the
memorandum and the comments on that document should be included
in the record file.
Examples of internal memoranda and staff notes which should
not be included in the record file are documents that express
tentative opinions or recommendations of staff to other staff or
management, or internal documents that evaluate alternative
viewpoints.
Drafts and internal memoranda may also be subject to claims
of privilege (see section III.H.).
H. Privileged Documents
Some documents in the administrative record file may be
protected from 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.).
If a document is excluded from the public portion of the
record file based on privilege, the relevant information should,
if feasible, be extracted and included in the public record file."
This can often be accomplished by deleting or redacting the
privileged information from the document.
The privileges discussed below may be asserted by the Agency
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. In light of the potential for
waiver, it is important that Agency personnel not release
potentially privileged documents to the public without consulting
with ORC.
Deliberative Process
The deliberative process privilege applies to pre-
decisional, deliberative cor.raunications that express opinions,
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advice, and recommendations of staff to other staff or
management . The privilege functions to encourage the honest
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 aeti@n, It
should be included in the record file.
Use of the deliberative process privilege ghoulfi
with the statutory mandate of including the public in
response action selection process. The privilege should! Ib©
asserted if disclosure of the document will have an
effect on frank and open discussion among government staff
decisionmakers. Documents should not be withheld solely
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 Agency 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, §104(e)(7) of
CERCLA greatly restricts the assertions of confidentiality claims
by PRPs at CERCLA sites. The Agency 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 Agency
must use CBI in making its decision, 40 C.F.R. Part 2 and
§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.
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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
An 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 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 bv 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 for 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 a central Regional location.
Each EPA Regional office should maintain a compendium of
guidance documents which are frequently used in selecting
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#9833.3A
response actions. As with an administrative record file, the
compendium of guidance documents must be available to the public,
but only at the central Regional location. 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
index to the record file. In this case, however, the index oust
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 at issue 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 at issue, however, need not be located at or near the
site or at a central Regional 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 because
they are already available to public. Copying such documents
creates a significant burden to the Agency and copyright laws may
pose additional barriers to such copying. Examples of publicly
available technical literature include engineering manuals,
ground-water monitoring or hydrogeology textbooks, ATSDR
toxicological profiles, and articles from technical journals.
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. Printouts or other documents
produced from the models and databases should be physically
included in the record file if such documents contain information
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19833.3A
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 administrative record 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.
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 (i.e., what the Agency 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 administrative record 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 Agency or its contractors (e.g., a State).
M. RCRA Documents
If an 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
Measures Studies (CMS), or responses to RCRA information
requests).
34
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#9833.3A
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 should be
included if not contained elsewhere in the record file.
N. Post-Decision Information
In general, documents generated or received by the Agency
after signing the response action decision document (e.g., ROD or
Action Memorandum), should not be added to the administrative
record file. Since the administrative record contains the
information which forms the basis for the response selection,
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. In limited situations, however,
the Agency must include in the record file documents generated or
received after the decision document is signed.
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 at a central Regional location.
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
significant aspect of a response action decision to be made
at a later date. For example, a decision document that does
not resolve the type of treatment technology. In such
cases, the Agency should continue to add documents to the
record file which form the basis for the unaddressed portion
of the decision.
o Where there is a significant change in the selected response
action. Changes that result in a significant difference to
a basic feature of the selected remedial action (e.g.,
timing, ARARs), with respect to scope, performance, or cost
may be addressed in an explanation of significant
differences. Under §117 (c) of CERCLA,
"(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."
35
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The record file should include the explanation of
significant differences, underlying documentation for
response action changes, any significant comments £2-©®
public, and Agency responses to any significant consents
formal public comment period is not required on an
explanation of significant differences.
Seme ehanges will be so significant that th@v
alter the very nature or basis ©£ th© ©vsrall
action. Such ehanges will sxaqfui?© an aasndkad
document. The Region will fieeieJe whether a ©hasiff© t© a
response action is considered a signifieant ©r a .ftmdlaac..--^
change for purposes of addressing th© eha^fe (&a© raCMMain>©©
on Preparing Superfund Decision Documents; The Ps'epesodl
Plan and Record of Decision,00 OSWSR Di^eetiv© $©„ t3SSo3=
02) is expected to address this.
When the decision document is amended, the amended dleeisien
document, the underlying documentation, any signifieant
comments from the public, and Agency responses to any
significant comments, should be included in the record £iie0
ROD amendments will require a formal public comment period„
Where comments containing significant information are
generated or received after the close of the public cogent
period. The Agency must consider comments submitted after
the public comment period 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 need to consider significantly
altering the response action. Documents meeting this test
should be included in the record file, along with the
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, the underlying
documentation, and Agency responses to such comments, should
be included in the record file.
Post-decision information may also be added to the record
file if the Agency holds public comment periods after the
selection of the response action. The 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 Agency requested additional comment.
All significant comments submitted during such comment
periods, along with any public notices of the comment
period, transcripts of public meetings, and Agency responses
to the comments, should be placed in the record file.
36
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#9833.3A
IV. INVOLVEMENT OF OTHER PARTIES
A. States
A.I. State Involvement on Federal-Lead Sites
The administrative record for a Federal-lead site must
reflect the opportunity for involvement in the selection of the
response action afforded the particular State. The record for a
remedial action should include documents that reflect at least
the following State participation or the opportunity for State
participation:
o Letter to State requesting identification of ARARs and the
final response from State identifying ARARs (and
certification from the State);
o Opportunity to comment or comments on a proposed finding or
decision to select a remedial action not attaining a level
or standard of control at least equivalent to a legally
applicable or relevant and appropriate standard,
requirement, criteria, or limitation (as mandated by
§121(d)(4) of CERCLA);
o Opportunity to comment or comments on the final draft RI/FS,
the Proposed Plan and EPA responses to the comments;
o Significant post-decision State comments and EPA responses
to the comments (place in the post-decision document file
for possible inclusion in the record file - see section
III.N.).
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.
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 §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 the administrative
record for that site in accordance with §113(k) of CERCLA. Since
EPA has ultimate responsibility for both the selection of a
response action (EPA signs the ROD) and the record on which that
response action is based, EPA raust participate in compiling and
maintaining the record. In such cases, EPA must assure that the
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19833.3A
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 must transmit a copy of the index, RI/FS workplan,
the RI/FS released for public comment, the Proposed Plan, and any
public comments received on the RI/FS and the Proposed Plan to
the appropriate EPA Regional office. These documents should be
transmitted to the Agency 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.
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 be, to the extent
feasible, in accordance with 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,
other documents may be requested by EPA on a case-by-
case basis. The State shall comply with §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
38
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19833.3A
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 §§113
and 117 of CERCLA.
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 the Agency 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.
39
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#9833.3A
D. Natural Resources Trustees
Section 122(j)(l) of CERCLA requires that the Agency 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
record file must include the Agency's 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 the Agency
considers or relies 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.
4C
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19833.3A
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 Sven-Erik Kaiser in the Office of Waste Programs
Enforcement at FTS (202) 475-9806.
41
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#9833.3A
GLOSSARY
Administrative Record: as used in this guidance, the completed
compilation of documents the Agency considered or relied on in
selecting a response action.
Administrative Record File; as used in this guidance, the
ongoing collection of documents the Agency anticipates will
constitute the administrative record when the selection of
response action is made.
ARAR; applicable or relevant and appropriate requirements (see
§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 §117(c) of CERCLA.
FOIA; Freedom of Information Act.
42
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19833.3A
FSP; field sampling plan.
HRS; Hazard Ranking System.
IAG: 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 Contingency Plan,
proposed revisions published on December 21,1988 (53 FR 51394).
NPL: National Priorities List.
OECM; EPA Office of Enforcement and Compliance Monitoring.
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 proposed 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.
QAPP: quality assurance project plan.
RA; remedial action.
the Solid Waste Disposal Act as amended by the Resource
Conservation and Recovery Act.
RD; remedial design.
RI/FS; remedial investigation/feasibility study.
RCRA facility assessment (RCRA document, equivalent to a
PA/SI).
RFI: RCRA facility investigation (RCRA corrective action
document, equivalent to an RI).
43
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19833.3A
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.
SMQA; Superfund memorandum of agreement (made with a State).
Support Aaencv; 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.
44
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#9833.3A
APPENDIX A
SECTION 113 (J) OF CERCLA
(j) JUDICIAL Review.—
(1) 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 be limited
to the administrative record. Otherwise applicable principle* of
administrative law thall govern whether any supplemental ma-
terials may be considered oy the court.
(2) STANDARD.—In considering objections raised in any judi-
cial action under this Act. the court shall uphold the Presi-
dent '$ decision in selecting the response action unless the object-
ing party can demonstrate, on the administrative record, that
the decision was arbitrary and capricious or otherwise not in
accordance with law.
(S> RzuEDY.—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) PROCEDURAL uutofts.—ln 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 rel-
evance to the action that the action would have been signifi-
cantly changed had such errors not been made.
45
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SECTION 113 (K) OF CERCL&
(h) A&MlttlSTRATIVS RSCORB AKB
(1) AataiNxsfBA
&n ^dministmtivs
ohsll £? ev&il&bis to tks
Tha IPr&iidsKt &lso nmy
®S mny etksr
msnt of
will bsss tks
disisl review of Fsmov&l estidfas will ks b&ssd.
(&) RSMSSIAL AeTiON.*=-Tks IPf&idsnt okell provide for
the participation of «RteR38sd ^SPOOKS, ifBe/ts^jf^ ^ggsasis/-
ly F^ponsiels p&f&ss, in (ks dsvstspfftsftt of &ks odmifiesi-
tmtivs record on which Shs President will fe@52 Sks csisstwn
of FSfnsdisI &etiom &nd on whieh jtudtsi&l Rjygs&y of Fsms-
dial setions will te tesed. Ths pp&ssduFis dsvalspsd uftdsr
this oubpsFsgrBph ohe.ll insluds, &t e mm«f^afn, G&sh of
the following:
(i) Notice to potentially affected p2f=o0m
public, which sh&ll bs eseompsntsd by @
of the pl&n end eltemstivs plsfus thst WSFS
fiiJ A Fs&aon&bls opportunity to eommsKt end provide
information rsgerding the plan.
(Hi) An opportunity for e public .msstif^ m shs mf-
fectsd &PS&. in escord&nee with cssSwin 117(@%&) f
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#9833.3A
APPENDIX B
MODEL FILE STRUCTURE
This model file structure nay be used to compile an
administrative record file for a 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 subcategories 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.
47
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#9833.3A
INDEX [FIRST DOCUMENT]
1.0 SITE IDENTIFICATION
1.1 Background - RCRA and other information
1.2 Notification/Site 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 DECISION (ROD)
5.1 ROD
5.2 Amendments to ROD
5.3 Explanations of Significant Differences
48
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#9833.3A
6.0 STATE COORDINATION
6.1 Cooperative Agreements/SMOAs
6.2 State Certification of ARARs
7.0 ENFORCEMENT
7.1 Enforcement History
7.2 Endangexment 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 Relations Plan
10.3 Public Notice(s) (Availability of the Administrative
Record File, Availability the Proposed^ Plan, Public
Meetings)
10.4 Public Meeting Transcripts
10.5 Documentation of Other Public Meetings
10.6 Fact Sheets and Press Releases
10.7 Responsiveness Summary
10.8 Late Comments
49
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19833.3A
11.0 TECHNICAL SOURCES AND GUIDANCE DOCUMENTS
11.1 EPA Headquarters Guidance
11.2 EPA Regional Guidance
11.3 State Guidance
11.4 Technical Sources
50
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19833.3A
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.... 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.
TITLE indicates the title or an enhanced
description of the document in parentheses.
AUTHOR indicates the author or primary originator
and the author's corporate affiliation.
RECIPIENT indicates the addressee or primary recipient
and the addressee's corporate affiliation.
DATE indicates document date by month/day/year.
/ / means no date was available.
TYPE indicates the document type.
CATEGORY indicates the EPA file structure number.
51
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19833. 3A
09/99/67 fldninistrative Record - Category Nuiber Order
LOVE CANAL
Document Nuaber: LOV-W1-1079 To 1089 Date: K/87/66
Title: Additional Sapling of the Black, Bergholt: t Cayuga Creeks and Extended Sewer Inspection
Project - Sufl»ary
Type: PLflN
Category: 11.4.8 Public fleet ing Transcripts
Author: none: NY Dept of Environaental Conservation
Recipient: Garbarini, Douglas: US EPA
fcc-went Nuaber: LOV-M1-1K9 To 1076 ' Date: 11/13/86
"itls: (Status report of Love Canal Remedial Prograas for pusli: aeeting held on ll/13/8£!
Type: GRAPHIC
Category: ll.i.0 Public «ee:ing Transcripts
flutnor: Bobersky, 3uy T: NY Dept of Environnerzal ConservatiCT.
Recipient: none: nor*
Docuae'.t NiiK«er: LCV-?K-W12 To MIS . Date: 86/12/87
Title: 'Love Cariii feasibility Stucy liorKsr.cp, schedule of :a/s everts ar<3 attericarice sheets)
Type: CCRRESPONDENCE
Category: 11.4.0 Public Heeting Transc-ipt=
Concitjon: INCWPLETE
fiathor: nor«: none
nor*: none
DocuKnt Nuaoer: LCV-W3-M1? To Wi'i Date: M/25/87
Title: (Presentat;3r, of Proposes Plan for Love Car-ali
Type: GRBPHIC
Category: 11.4.3 Public fleeting Transcripts
Condition: INCOTIPLFTE
ftuthor: none: none
Rec:?:er-t: none: none
52
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19833.3A
APPENDIX D
MODEL POSITION DESCRIPTION FOR ADMINISTRATIVE RECORD 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 law.
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 officials, 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 DUTIES AND RESPONSIBILITIES
1. The incumbent is responsible for compiling and maintaining
all of the administrative records for selection of CERCLA
response actions for a Regional office of the EPA. The
incumbent must have complete knowledge of all rules and
procedures governing development of the administrative
record files.
2. Receives and reviews 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 adninistrative record files. The incumbent
will coordinate with staff responsible for deciding what
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19833.3A
documents are included in the record and will arrange for
adding documents to the record file.
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 Relations 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 Waste Branch Chief]. An administrative record is
reviewed and certified for litigation by a person designated by
the Regional Administrator.
54
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19833.3A
APPENDIX E
COMPENDIUM OF CERCLA RESPONSE SELECTION GUIDANCE DOCUMENTS
The "Compendium of CERCLA Response Selection Guidance
Documents" is a collection of guidance documents which are
frequently used in the selection of a CERCLA response action.
The following documents are the core guidance documents used
in the CERCLA response selection process and are included in the
Compendium. The Agency is preparing a more comprehensive list of
frequently used guidance documents. This particular list and
file structure was adapted from "Selected Technical Guidance for
Superfund Projects," September 1988 - OSWER Directive No. 9200.7-
01.
SITE ASSESSMENT
Data Quality Objectives for Remedial Response Activities:
Development Process [EPA 540/G87-003]
Data Quality Objectives for Remedial Response Activities:
Example Scenario [EPA 540/G87-004]
Design and Development of Hazardous Waste Reactivity Testing
Protocol [NTIS PB-84-158-807] ...
Guidance for Conducting Remedial Investigations and Feasibility
Studies Under CERCLA (Interim Final) [OSWER Directive 9335.3-01]
Handbook for Evaluating Remedial Action Technology Plans (Final
Report, Oct. 81-Jun. 82) [NTIS PB-84-118-249]
Handbook, Remedial Action at Waste Disposal Sites, Revised [EPA
625/6-85-006]
Modeling Remedial Actions at Uncontrolled Hazardous Waste Sites
[OSWER Directive 9355.0-08]
Test Methods for Evaluation of Solid Waste: Physical/Chemical
Methods, 3rd Edition [GPO 955-001-00000-1]
MONITORING AND SAMPLING
Geophysical Methods for Locating Abandoned Wells [NTIS PB-84-212-
711]
Geophysical Techniques for Sensing Buried Wastes and Migration
[NTIS PB-84-198-449]
Practical Guide for Ground-water Sampling [NTIS PB-86-137-304]
55
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19833.3A
RCRA Ground-water Monitoring Technical Enforcement Guidance
Document [NTIS PB-87-107-751]
Sediment Sampling Quality Assurance User's Guide [NTIS PB-85-233-
542]
Soil Sampling Quality Assurance User's Guide [NTIS PB-84-198-621]
SOURCE CONTROL! ALTERNATIVE TREATMENT TECHNOLOGIES
Directory of Commercial Hazardous Waste Treatment and Recycling
Facilities [NTIS PB-86-178-431]
Guidance Document for Cleanup of Surface Tank and Drum Sites
[NTIS PB-87-110-672]
Guidance Manual for Research, Development, and Demonstration
Permits Under 40 CFR, Section 270.65 [NTIS PB-86229-192]
Handbook for Stabilization/Solidification of Hazardous Waste [EPA
540/2-86/001]
Management of Hazardous Waste Leachate [NTIS PB-81-189-359]
Mobile Treatment Technologies for Superfund Waste [EPA 540/2-86-
003F]
Practical Guide - Trial Burns for Hazardous Waste Incinerators:
Project Summary [NTIS PB-86-190-246/AS]
Prohibition on the Placement of Bulk Liquid Hazardous Waste in
Landfills - Statutory Interpretive Guidance [NTIS PB-86-212-271]
Review of In-Place Treatment Techniques for Contaminated Surface
Soils, Volume 1 Technical Evaluation [NTIS PB-85-124-881]
Review of In-Place Treatment Techniques for Contaminated Surface
Soils, Volume 2 Background Information for In-Situ Treatment
[NTIS PB-85-124-889]
Systems to Accelerate in Situ Stabilization Waste Deposits [EPA
540/2-86-002]
Technology Screening Guide for Treatment of CERCLA Soils and
Sludges [EPA 540/2-88/004]
Treatment Technology Briefs: Alternatives to Hazardous Waste
Landfills [EPA 600/8-86-017]
SOURCE CONTROL - STORAGE/LAND DISPOSAL
Syster.s to Accelerate in Situ Stabilization of Waste Deposits
[EPA 540/2-86-002]
56
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#9833.3A
GROUND-WATER REMEDIATION
Guidance on Remedial Actions for Contaminated Ground Water at
Superfund Sites (Interim Final) [OSWER Directive 9283.1-2
Leachate Plume Management [NTIS PB-86-122-330]
RISK/ENDANGERMENT ASSESSMENT
Superfund Exposure Assessment Manual (Draft) [EPA 540/1-88/100]
Superfund Public Health Evaluation Manual [EPA 540/1-86/060]
CONSTRUCTION TECHNIQUES AND PROCEDURES
Emergency Response Procedures for Control of Hazardous Substance
Release [NTIS PB-84-128-719]
Guidance Manual for Minimizing Pollution From Waste Disposal
Sites [NTIS PB-286-905]
Guide for Decontaminating Buildings, Structures, and Equipment at
Superfund Sites [NTIS PB-85-201-234/AS]
Slurry Trench Construction for Pollution Migration Control [NTIS
PB-84-177-831]
Superfund Remedial Design and Remedial Action Guidance [NTIS PB-
88-107529]
Superfund Removal Procedure Revision #3 [OSWER Directive 9360-
0.03B]
PROGRAM GUIDANCE
CERCLA Compliance With Other Environmental Statutes [OSWER
Directive 9234.0-02]
Guidance Document for Cleanup of Surface Impoundment Sites [NTIS
PB-87-110-664]
Handbook, Remedial Action at Waste Disposal Sites, Revised [EPA
625/6-85-006]
Superfund Federal-Lead Remedial Project Management Handbook [EPA
540/G-87/001]
Superfund State-Lead Remedial Project Management Handbook [EPA
540/G-87/002]
57
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19833.3A
CASE STUDIES
Case Studies 1-23: Remedial Responses at Hazardous Waste Sites
[NTIS PB-86-121-721]
Summary Report: Remedial Response at Hazardous Waste Sites [NTIS
PB-86-121-721]
COSTS
Costs of Remedial Response Actions at Uncontrolled Hazardous
Waste Sites [NTIS PB-83-164-830]
Remedial Action Costing Procedures Manual [NTIS PB-88-113-691]
Removal Cost Management Manual [OSWER Directive 9360.0-02B]
58
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19833.3A
APPENDIX F
MODEL TRANSMITTAL COVER LETTER
[Name 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 thank you for your cooperation with
the U.S. EPA in serving as a Field Repository. If you have any
questions or comments, please contact [Name of EPA contact] at
[Phone No.].
Sincerely,
[Name]
Administrative Record Coordinator
59
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#9833.3A
APPENDIX G
MODEL DOCUMENT TRANSMITTAL ACKNOWLEDGMENT
From: [Regional Office Address]
To: [Field Repository Address]
I acknowledge that I have received the following documents from
the U.S. EPA Region Office, pertaining to [Site Name]
Superfund site.
Administrative Record Name - rsite Name!
Administrative Record Document Numbers -
Signed
Date
Please return this form to: [Regional Office Address]
60
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19833. 3A
APPENDIX H
FACT SHEET
Administrative Records in Local
The "administrative record" is the collection of documents
which form 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 periods at certain stages of response process.
The public is urged to use these formal review periods to submit
their comments.
For further information on the administrative record file,
contact [name and phone no. of Administrative Record
Coordinator].
61
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#9833.3A
APPENDIX I
MODEL NOTICE OF PUBLIC 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 form
the 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 workplan, 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 Nanel and U.S.EPA - Region Z
[Address and Phone £] [Address and Phone #]
Additional information is available at the following locations:
Verified sampling data - Contract laboratory,
and documentation [Address and Phone #]'
Guidance documents and - EPA-Region Z
technical literature [Address and Phone #]
Written comments on the administrative record should be sent to:
[Name], Office of Public Affairs
U.S. EPA - Region Z
[Address and Phcne =]
62
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#9833.3A
APPENDIX J
MICROFORM APPROVAL MEMORANDUM
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OCT 2 I
OFFICE OF
SOLID WASTE AND EMERGENCY HESPONS
MEMORANDUM
SUBJECT: Microfilming the Administrative Record
^/ .-
FROM: Edward J. Hanley, Director /• /
Office of Information Resources Management
•
TO: Asa R. Frost, Jr., Director^
OSWER Information Management Staff
In accordance with EPA Records Management Manual, Chapter 6,
dated 7/13/84,',! approve OSWER's request for an
administrative record micrographic system for regional
hazardous waste management programs.
The feasibility study prepared for OWPE, entitled
"Assessment oi the Suitability and Costs of Alternatives for
the Administrative Record" (June 30, 1988), satisfactorily
documents and justifies the need for converting the
administrative record to microform. In particular, the
requirement under SARA to make the administrative record
publicly available at or near each hazardous waste site
makes microform a cost-effective storage medium.
Please inform each regional hazardous waste program of my
approval of OSWER's request and of the need to comply with
the remaining provisions of Chapter 6 of the EPA Records
Manual should the region proceed with implementing an
administrative record micrographic system.
cc: SIRMOs, Region 1 - X
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19833.3A
APPENDIX K
MODEL CERTIFICATION
IN THE [NAME OF COURT]
UNITED STATES OF AMERICA,
Plaintiff,
v.
[NAMES OF DEFENDANTS]
Defendants,
NO. [number]
v.
[NAMES OF THIRD PARTY
DEFENDANTS]
Third Party Defendants
CIVIL ACTION
CERTIFICATION OF DOCUMENTS
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 Compensation 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 my name this day of
, 19 in Fcitvl
r signature! •
rtyped name
64
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APPENDIX L PREAMBLE TO SUBPART I OF THE PROPOSED NCP
/ Vol. S3. No. 24§ / Wadaooday. Doeembor §1. 18SS / Fr@p@SQd
act is thete eapaeity oo a east of
Qovorasoat. t&oy say foeoivo ftsadla
fees tho IPuad fe? cossea 180 fosporaoe
octioaoo authesfeod by section lU(a)(l)
of CSSCLA, A gsUSeol subdivision of a
State io treated oo o State for the
purpooe ef oection 107.
3. Geaats foe teehaisel essiasencs.
Cuf?erat NCP 0 S90^3(d) Eofsra to
cooperative agrearaeats aad esBtracto.
Amendmaata Jo CSICLA section m
authorise technical assistance grasto
pursuant to section 117(e). Cooperative
agreements aad grants, whea takea
together, are generally referred to as
"aooiotoncQ agreements." EPA io
proposing to revise Q 3CQ.23(d) to refer to
"procuroRieat contracts or assistance
agreomGnts."
SuboGft H*=-AdministFativQ Roeofdfof
Selection of ^aspoaco Action
Proposed Subpart ! of the NCP io
entirely now. It implex -:-!8 CERCLA
requirements ceacemir.^ the
establishment of on administrative
record. Section n3(k)(i) of CERCLA
required the establishment of an
administrative record that contains the
documents that form the basis for the
selection of a CHRCLA response action.
In addition, section *33(k)(2) requires
the promulgation of regulations
establishing procedures for the
participation o? interested persona in the
development of .the administrative
record.
EPA is proposing regulations
regarding the administrative record that
include procedures for public
participation. This will ensure the
development of a complete and accurate
record by ail parties responsible for
compiling recorda. because procedures
for establishing and maintaining the
record are closely related to the
procedures gov<3f-»irg pubHr
participation.
Because this subpart is entirely new.
the fol!oroin@ discussion is not divided
into major revisiaaa. other ravioiomo.
and pointo o? doinlSeatsoa. btoteod. it
explains the
provides a parapapfe by parogropfe
rioQ o? 4&o prapooed regulations.
A. 3achground oad Purpose
Undsf CSKCLA. tho administrative
record established under section 113(k)
servoo two prisaary purposas. Fires.
under section I13(j). judicial review of
any issue concerning the adequacy of a
response action is limited to the
administrative record. Second, oection
::3|k) requires that the administrative
record b« used oo a vehicle fc? rublic
^•a.".:cipd..«r. ;-. ;hs seiectn c
response action, ensuring *•. -A hsa
tho roog®aco oad that
totopossed gafSos havo boos $vaa
to
participato is that ooiocticm.
1. /adiciel eoviQvr. Saetion
CgKCLA pirsvjdoo that jut&ciai poviow ef
any ros^&oo aea@a ohoiS bo
U3(j)(2) i
uphold the oeloctioa of a rosponoa
action unless the ebjeetiag parry cos
demonstrate, basod era tho
admiasotrativo record, (hat tho daeisiea
was arbitrary aad capricisun. or
otherwise sot ia osesifdaEeo with law.
established priaeiplQs @f adaMo&nftiTO
law coneormnQ tho opplieablo otosdard
and ocope of rGwiow for iafoirmal agcaey
actions. The legislative hiatosy ©f
section 1S3 demonstrates that it is
intended to clarify aad csnfim the
applicability of those adsaiaiotrQ&'vo
principles to CSRGLft rooponse
oelection. (Seo S.
1st Seso. S? U8S3); SiS. lop. ^=233. 88th
Cong.. 1st Seoo. 82 (JSSS): Coag. lee. H
ilOSO (daily od. Dee. •§. 1893)).
Lisnitjag judicial FOWJO'K; @f thQ
selection o? a response Obtioa to thQ
administrative roe@rd omowoo that
litigation oa the sslection of the
response action focusQS ea the osloc^on
in light of the isfogmatioa available to
the decisionmaher at the too the
response was selected. Judicial ratrtGW
limited to the admisiiotrative rseord
contributeo to the owefwhelmifig public
interest ia effoetiag the ej^oditieuo
cleanup ef potentially health- aad
environmeat-threatesiag hasardsuo
waste sites aad easusos that all
interested peroeaa may partsdpatQ
equally ia the administrative
dcc:s:onm@hing proeeso. The principal
effect of limiting judicial reviero to tho
administsrotivQ record is that eotifto «ill
not engage ia de sow® fact-fiadiag
during their Fsviora o? a challenge t© t&Q
decision to select a eortaia nsspoaoa
Thus, record review of rsspoaso
selection deeiaiorao would seoa that
persons
decisioa eould aot dopooo. ojjoaiao er
eoBs-QKomiao on-seeao
(OSCo), remedial p?ajoeJ
decisionmaksro with roopeet to tho
response docisioa e? aaQogo ia oay @tho?
diocovcry activities. Also, the imposition
of long and costly trial-type procedures
in ssction 103 actions would greatly
delay response.
2. AA/Yc participation. Sections
H3lk){2J (A? and (W. of CERCLA require
'he promulgation of regulations
establishing procedures for the
oetion.
For fasiodio! oeaosja
i. Notice t© j
persons aadi
a brief aaalysio of the plaa rmd
iL A roaoonablo
eommest aad provide
sootiao ia ^o offoeSod osoo, ta
aow data oabraittod is rajjttoa s» oral
Theeo
oomoos
the
oal
ef iubpost E.
i ths aatu?o @? rosswol aetions
foi
for public participatio@ ia ro@©vol
"^ "^ * ..
-------
oa 8§J. Public
oaruc:patioa fs^tsxascs
octiono are cgssscrd si 0 £39.een compiled aad sode available at o?
iear o oite. Thus, at ouch oiteo. the lead
geney will eoajply with theoe
e^ulotioao te the estenl practicable.
;. Sumsiary of New Subpart I
1. Establishment of en administrative
•cord (§ 3GO.£QO). Ao explained e&rlier.
action llSfk) requtfeo toe ootablioomeat
f an odmiaioB'otjvG record coaoisung of
j« documcnto that fora the basio for
the oelecsoE of a FQop®noo actiota. Aa
administrative record 10 the compilation
of documents eonsidered or relied an by
the agency tn making a dGcioion: in thio
case, the oelecJion of the responoe
octcaa fer the oite. Proposed 0 SCO.££3(a)
cedifioa thio atatutory prsvioios ond
providoo that oueh ootoblJofeaoaJ go tho
respoaoibiiity ef the lead agsracy. The
regulation also uoea the «ena
"adainiotrativG rscord file" te ?• >r to
docuiaeats cvhich the lead agency
anucipatco will bo meiudod m the
Quuiinistrative record when the dseioion
on s=3opsase action oeloetion io mndo.
The adsuniofirativQ Fee@Fd Slo eeratotaa a
body ef doeasjaato wbi^ iaeraaooo oa
docsisiGma are added aad doeo sot
necoooorily eoaotitute the fiaol
The term "do.cusssato.0 oloo aoed ia
the preamble and prepooed regulotieao,
is intended to be very broad. It isciudeo
writings, drawisgs. grapho. eharto.
photogniphs. and do to eespilotiess
from which information eaa be obtained.
It does not include physical oompleo.
Section 30C.iOO(b) oddreooes
administrative records fo? Federal
facilities. Executive Order 22SS0
Quthonzes Federal agencies to establish
the QdsJrusirative record for oeieetioa
of response acfcons for Federal focilitieo
under their junsdiction. ©aotody. or
control. EPA. however, is required is
promulgate regulations establishing
procedures for the participatioa of
interested parties ia the development of
the record. Federal ageadoo must
compile and raaintaia recsrdo oo
required by this oubpoft oo ftaaliy
Tfomuigated. Section 3CO.ECO(b) aiao
.arifieo that olthoush ue Federal
agency is responsible IBS eompiliag aad
maintaining the adsiais&aQVG roeer4
EPA moy furaisa docussenta vrhich the
Federal agency is to place ia iho
administrative record file to esawQ that
the odsiaictrotive record Jadudoo oil
docu^ealo which form tao°bocio for ths
oeleetioa of ths response actioa,
Section 3CO.ecO(b)(2) provides that
when EPA (or the b'aited Stales Cooot
Guard fL'SCC)J ia the lead ageaey at a
Federal facility. E?A (or USCG) ofeal!
coBspilo aad maiataia &B FQeofd.
Executive Order 12SSO doUseatoo eaooo
in which EPA (or USCG) io the load
agency. EPA io tao load ageney. fop
exosaple. at Federal sociliueo eeadae^
on-oite emergency rGsioval actiono
(outer than at DOD or DOE FoeUiUeo).
The L'SCC caa be the InraA agoacy at .
Federal facilities with on-oiio omefQeaey
removal actions ia the coastal goae.
Section 3CO.£03(b)(3) requires that
when EPA io iavolved ia the oeiosUoa of
Q response action at a Federal £aeiUty oa
the MPL, tfoo Fodsrol agesjev ohaii
provide EPA with o copy of the index or
docGacato included in the
aessssajso-odivo roeord file, the R1/F3
workploa. She SI/FS releosed for public
coramoat too p?ep®ood plan, any public
eommGato raasivod ©a the SRI/FS and
@s> a eaooby-sasc
baofe). 5P>A io iaw©8wod Sn tho seloetion of
o reopsxaaa oetiea whsa St to jointly
oQloenssQ &o Sxiopeaoe action with the
FodcsaJ agejaey. ao delineated in
EssoeM&TO ©?dor 12SSO. Such joint
o. for QKorapls. for all
Q@ii©@o at IFodeml facilities on
eoooo. S"A sust be
onffidoatly familiar with the eoatGftto of
daissiotrotiwo i?ee©rd to bs able to
g?A eeaaidopod ©tho? ©ptioao fo?
OSraUve raeord for Federal
faeilitico. ouefe as ponedie visits to toe
Federal fosility te review ths
ad@Mo&rativo ffoesrd OG as it io
eompfled, ?QGGipt Q£ too entire eoateata
of &o ?Q€@?d filG for oil KPL sites, oad
recGipt af too oatiro eeateats of too
paeos^ SlQ fJe? oU reapoaao actioao at all
Federol feieUitieo. EPA has tentatively
rGjeetod tooas aptieas as feaiag ovorly
bufdeaoosao. E9A bokcwco that the
So easura that tae
response oetion oelected by the Federal
ageney adequately acco^mto for the
eesGGfiao of t&G public, io consistent with
respoaoe oets©@ oGJoctiaa at aoa-Fodefal
focilitieo, aad oMawo EPA ia bo
oaHsJoffly^ tew@!wod m too docioioa
whea (& io joasKSy oolosteng too raoponoQ
octisa, EPA ooiiiato essaoraio OB
olteran&vo
odmiaistfativo retsafd for Foderol
facilitiGO.
Sostaoa §C9.£SS{c) opoeifioo too! it io
the pospaaoibilify ©f too State to eaapile
and sasatois ddmiaio&atavo roeords at
a Stato-toad oite. Soetos® SQO.eso(e)
appliGO ©niy if EPA oad too State
formally deoi^atG toe State ao toe load
ageaey to o o»«o ao opaeMiod ia Subpoft
A Bade? too dofssstBisa @? load agency.
The FQq«Bje®GaKi for Stoto-laad oitGs are
oimilar to to@OG te Fodoral ogcneieo
s\2€®pdo fo?
so
actioa. l^A io prapeoiag that toe State
provide UFA, ©srameseing at the use
the admimo&atJvQ ?Qe@Fd Sic ia firaJ
soda a^ailablo to too pssblie. with the
indon ©1 dsxsasaoato included ia the
lo. Tho iooueo
to taooo
OTG
obowo fas- Federal
66
-------
in
otatuto oad dicctkiocd oosifeg te ifeio
preorabki. ho^aver. oso agplieoblo to
any Rocofd of Oeeisien (ROD) os^ied
after Oetohar 17,1CS3. the daw that,
cioanupo. i-Q-
pursuant te soctiona 136, ie& o? X3X
. U&Ao? this propeooL
cleanups nood sat ceaply with thsso
QdasaioBotivo ree@fd roquif
Socteon 3GS£03(d) tea
Stato oetzsaa fe?s@p& rosewosy
a resposco aeesa, eesply ra^ (
oubpart, I? a. Siata ip oQoMs§ ts Esass-.
coots fro® sespoaajfelo portioo t«adG2
oectioa 16f of QSGLA, ^A soy wy-S
to require &a Stotaa ee@ply
oubpart to aspacSSQ judidal gssc
thai Siosoo plaeo r-d
-------
Kepoter / Vol. 53. No. 245 / Wednesday. December 21. as@3 / Frepooed Rules
data oE!fflsnas=jf oheeto one OKI gtasse
v jjusiinous. documentation of euality
assurance end quality contra! which to
r.ofmsi'uy oummansed in the remedial
investigation/feasibility study fRS/FS).
snd eaaia ef esotsdy fossa. Thooe typso
of soesmGats say bo ot@red ia the IP A
RegiOBal eSssG. eeatsaet laboratory
eJTieo that eendaetod the tooting. State
esn-iroBSSBStol agency effiee. or
elsewhere, oo appropriate.
Seetisa SE9.E03|b) provides that
guidaaeo documents aet generated for
the partieuJar oite for which an
adminiotratjvo record io boing compiled
Essy tea saistasaod ia a library at the
centra! Ideation. The (jaidaaeo
documents need not 00 ia oaeh oito-
specific admiaia&ativG roeord file at the
central lecouen @r at er BOOT the oitQ at
nsaue. EJPA aatjejeateo that each EPA
Regional offiee will ma1, main a central
library el guidance docusients_whieh
ore frequently cited ao a basis for
selecting a response oetioa. Thio
approach eliminates the aeed for
reproducing copies of the same
document for oach oitQ record. The serra
pjidaneo document melucoo iooae-
spscifie policy aGsefondo as WQ!! aa
formal guidance doeusjoata. Estompleo
of ouch guidance docBstents and tosue-
opecific memoranda include the 1RJ/FS
guidance deeumeni. guidaaee ea nok/
eapoaufe oaoecoaento. gujdoace on
applicable e? relevant and apprapristc
requifeaento. semomsdn on aasusiura
eor.taa^oaJ levelo. and guidance on
seating for opscifie contaminanto.
Cuidoaee docusnento and sieaoranda
crhieh ore generatQd for a particular aitQ
siuot bs placed is tho oitG-opecifse
QdminiotrativQ rseord Sic. (For oxoaple
s document en diesis contamination at
XYZ oite Huot be placed ia the XYZ oito
specifie adminiotrativG record file. U it io
also used ao a guidance document on
the cleanup ef disxis at etse? oieoo. it
soy bs located esly ja the soa&oJ
library rathor tteaa phyoieoHy fe feo
admmiomitjwG rseord Sic 08 &©3o atfee?
oiteo.) ThG central library ©^sjEadoaeo
documesto mil be ovailabJo 8© &o
public.
EPA propooeo is S 3GO.@33(e) that
publicly available tscbaical literaturs
not generated f@r-a oite at iooue seed a@J
ba legated at a? EGO? the oite at iocue. ia
the cental library sf guidance
docusaesto or in the oite-specific
administrative record file, provided that
it io listed is the index to the
adminiotFativo record. Copyright lawo
raoy bar the copying of theoe materialo
without specific approvalo. O>A
ibnt expending Superfund
on obtaining copieo of
publicly available technical literature io
not appropriate. Examples of pubhciy
available technical literature ir.ciaue
widely used engineering hondbooko on
sround-u'otGf faonitonng. and arusiso
from technics! joumcla. which are
readily available in teehsical libraries.
The index rauat list these documents
separately and mdieate ialorraatien an
their availability, er. the literature may
already be cited in a doeusnent included
in the record.
Toehuieal literature, however, which
is not generally available should be
included is the oits-opeeifte
adminiotrative feeofd file. Saeonoe theoe
obtainablo. they should set oteply bo
indexed. They gono?slly wiil set feo taood
for many cites: thersforo. it is also not
appropriate to include thorn & the
control library of guidance documents.
The . : rary should be reserved for
dscu.-er.ts which are frequently osed to
select response actions. Examples of
technical literature not generally
available include articles £rom technical
journals or unpublished documents not
available through the Library of
Congress or not circulated to technical
libraries. .
Section 300.E05id) provides that
documents included in the confidential
portion of the adami&i?atjY« record file
shall be located only ia the central
location. Since the public eaaaot review
the confidential and privileged
infonsiotioe. there is no reason to
require thst such information be
maintained at er sear the oite.
E?A is proposing in 0 S00.80S(b)(S)
that, for reaooBO of adsiaiosa^vG "
feasibility, on admisustrotiva raeotrd Sis
for emergency removal aetseraa rohere
on-c:te activities cease withia SO ddyo of
initiation need only bo available ?o?
pubbs iaopection at tho gQntml i@€ation.
Emergencies arc thooo aetieno vri& little
er a® load time
by
at @r near the oi
the administrative bc*?dea @a the
response to ouch eme^emeieo,
feasible, a notice may fee placed at ?fee
site Gspiaiaing that the a@mmist?ative
recerd file trill bo available ?e? public
lecatisn).
3. Csnteals ef she edsttsustfetive '
record (§ 3C3.8W). Ths adminio&ative
record under oeetion 113(k) eenoioto of
documents which form fehe booio fo? the
selection of a r^oponoa oetioa at a
particular site, in detefmining cvhich
docusaento form the basis for the
response action, i.e.. %fhat eeaotituteo a
complete record, the lead apency shall
include all documents considered by the
oeeisioamoker. including thooe relied
upon by the cecibionmstter ia 9f i?c::nc
the response action.
it should be noted that documents
constituting the administrative record
for oeloetoa @ff a roopoaoo aetioa ore
oaiy a oafeoot ©f dseusaanto that the load
agoaey ®oy hawo esmpiled with sospoet
to a paftsealar csto. The load agoney will
aico feavo gGnoral Sloo eoRsisting cf
doeumonts relevant to ether aspects cf a
site.
Sogtisa S69.OT9 djseusseo generally
t sh@uld bo gesiaiaed in the
roeerd filo for rooponse
'hat ohouid bo ongluded.
ioetse® SS3U3S@(a} odatoo that it ohould
oaolyow ©£ tho faeSaal Mosmatiea and
data: o^idoaeo deetaments: toehnicol
\}: oiJe-opodfic policy
: dosuments received.
pubiiohod. ©r @odo available to the
public under 00 303.323 and 233.829 of
this oubparfc deeisien documents: and
saioreosGBS ©rders. ia odditiea. on
ip.dGR liotag Sfes Sagumonto coataiaod is
tho odmtecwo&iwG record file sheuld be
filo.
Tho fell©wiag io a list of documents
which Gypeaiiy. but sot ta all eaoes.
sheuidl bo post ef the adraiaasuative
recerS f@? oeioetion of a remedial or
pomevol oeti®®. (For purposes of tfajo
oabpcM, ea SJ/FS ohouid bo included as
a ceap®ac!S)t @f a raraodjal action
recerd.) Oaiy documents withm each
eategoiry which form a basis for
oeleetiSQ 8feo Fooperaoo aeti@a will be
i so lioted uader public
on
r 8OOMGO- to aot part of the record).
Thio liot to tatonded to be illustrative.
but ss®(t laoeoooarily required at oach oite
or essspilGtta.
L Sealants ef Remodisl Astioa
Vaiidatod oampliag and analysis data.
Prajeet ploa ®? pro^om plan
report
fiaal 1X/FS wo?hpla
action
Jaosd ia sonjuaction with
early opagsol ia©«iea lettero).
f oheeto.
Faeteal traJoFmation submitted by the
public, iaduding
68
-------
/ VoL 53, Me. 243 / Wedaesdav. December 21.
Natusol leoeases "Ecuatooo
feauaiaQai nn/j faclQSJiflsalEGperto.
goraodial os&sc, Tfeo
efl
MoaaFosda. ©a psliey daeisiono Cssfo-
opeeiiie oad taouoogoeific).
Guidance documents.
Technical literature.
ICC.
Cosssaraity fsianesra plan.
Notice lettere to PRPs.
Proposed plan.
Transcript of sooting on RJ/FS and
propoood plan, ond cypiwero uside?
EISO Jings.
Rsopcnse to oipsiScoiat easasaGSJts.
ATSOS, feoaitb ocoooosent
Natural BeeOTssTO Tfaotooo SB&BQ o?
fa -t aad Snol reporio.
(o) Restates) Baswnosies.
Response t© acoiso iottara eeataiEs^j
relevant factual isfetmaaoa.
(g) /ne'e*.
ii. Contents ef Remove! Assion
(a) Fsd'jeJ fnfoe&sationSDat&.
Sampling plan.
Validated aosapLag and aaaiyoio data.
Cfaais of cuGSesy fc^so.
Pfolismajv accaoomoas report.
Site isTvostigaoon eopon.
Inspection ropejtg,
report (H/C&).
Technical otucias porfcssed fo? the?
oite.
Factual informotioa oubraittod by tfeo
public, iaciuding PEPo.
ogeacy'
oubotaKtiaJ
(b) Pslicy end Gwdmea.
Msmeraado @a gs*!^ dQaoioao (cato-
specifie aad i
Yeehsical
(c) Pu&Jte Perticspation.
Fublie eeaeoa,
ffubUe eamsaoata,
Coramuaity relations plan.
Notice letters to PHPa.
Re«?onse to
(d) Other Party Information.
(e) Bocisioa Bssusasnts.
1E/CA opprgvormeaorcad
Action BiQaerondum.
(0 Enfofsemeae Documents.
fib C3 tfeas tfeo ^ibtisosi es4 jeoo tfeo
IF&Po basra tbo iafeB^ate®.
letters to PRPo bo taefeeid is tfao
FBCOiWO E®!JeO loCZQffO QSQ OJSpCSS8C^ 8®
Ssvcrol desusaoaJa ia the Hat obsve
rs^xs^e funho? cmpionotien. Firat
verified oospling dato QFB ssjeltsdc?d era
the list above. Data C7bie& haw?
cs.
astieD kittoro oad ooaorai plraeiploo o?
und
woilabk) Sss gafelie isopasass.
ooao
y will B@6 feo
record.
Seed
8 2Sas*e}c)M
toduoios tes t&o a
bocaaoo they d® seo fess o
be part o£ jho ~. . _ -
EPA aad@«&GPFGdcroiogas<3®ofeoro ^^P^^fe7g^paa>«^^s^..
detertmso t&s- onsat i^f CD cs^snsa nsnit
hoaitfe. a? cjoJIoro E? Jfeo
<8so ?9 oa QCtiial
o basD?douo ouaotaaeo. M ^A efeseoco
to eas?eiDo its dsoerotiea t© esatteet csaefe
an osoGsaaeBt. tfeo ocooooaoa! oiaail bo
ind'»dsa is t^a roees^, A da
of an isfisiuxs
eadasgormoat ic, eooed oa fessaoi
information t7feieh. fggac, a feacio fe? tho
selection el tha rao^ssoo ostio& Ao
? roiicd
actioa oQlocttea oad sows? oagoscodo^
by a
in tfco
iwo goserd Slki. Iffeo-
io aode. U to pan a? &o soscrS @? ^kj
oolecuoa ol a rooposico cs?iea> l^A
beiievsa that janacsolssviaw'sf tas
detersusatios tSsat t^ofo io as isaiaaaa
and substantial oadoflgo^aoHS ia.ossi©sso
undsr soeaoa iC3 1@ oalerao oa. @sdor os-
for iajuaetiwQ goUol &£so£@ro. ia teitod
to tho admteioso&TO rsa9?d.
Third. f@ff Q EQSQ^sai aetiea
tac liot iaeludao a ou
Aay-te-doy aoteo of otoS wfesefe so-son
. . r
ti^potJ^ftAc?^ A®£ ti
ndgaijaiiAi!gy\gisfn fC
thatcapsooo @ps
dlocioieacsl ds^^aosto fes5 cwoiwato
altczraati^a wjKsgsaiatD,
opeciaJ eoiico lottosti S?A say iooea «0
^^Q=A i£ tha B@tieo IcMo? ic. tooisod
prior ts tk) availoMi^y ©f
-------
/ Vol. S3. No. 243 / Wednesday. Dsesrabef
.';:_!- a basis for 8ho oeleetien cf a
respeaoo aetioa So ssat Sneladod te any
otner document is tao adsaaisSstive"
record, that information muot be pan of
the administrative record. Section
300.810(d) requires that the information.
to iht extant feasible, must be
susjsjariEod ia ouea o moaner QO to
R-.ako it dioeloooblo to the public and
placed in tea adsaimotrative record Hie.
If it is aot feasible to ousamartee the
information is o relooooble saanner. e.g..
when the privilege applies directly to the
information which forsss a basis for the
selection of the response action, ouch as
confidential business information, the
documents muot bo EJaintaisjod by the
lead ogeaey in a confidential portion o?
the asjaiaiotrative record file. (These
documents may be reviewed in camera
in any ouboequeat judicial proceeding.)
The index to the administrative record
must list the eonfidential or privileged
locument oven though the document
will not bo available for publes-
snspoetioa. Whether or not the
information eon bo ousmarised in a
releasable manner, the actual document
containing confidential or privileged
material auot be included in the
confidential portion of the
administrative record file. Sn light of the
nature of the information in the Rl/FS
and underlying documents and the fact
that contamination levels ore generally
not privileged, thio 10 not expected to
cccur frequently.
It should be noted that section
I34(e]{7] of CSRCLA governs the extent
to which information may be claimed
confidential by persona required to
provide information under that section.
Where confidential business
information io claimed. EPA will
proceed according to regulations oet
forth in .818(bi Cwerines that
interested aerooap-say submit
comstento for mGiaosea in the
admimstrativo rogerd Sio during the
publie comment period on the SR1/FS end
proposed plan desenbad in 8 3GQ.€30(0
of SubparZ S. Tho Jaad agaacy sioed aot.
feowovor. rasposad 8® e@®®ento that
psnod @a tea prapoood plan.
although in many iamaaeoo. the lead
sgoscsr will oitteor i»aahG appropriate
m@diflcationo to t&e FGOposoe action or
in writing to thooe early
A
will feo ssssSadod ia the
G&atetro tfoe@rd file. The lead
agency nood aot respond la any
stll the elooe of the
public eoEfflcrat posted. Qenorally,
rospo^ooo will tea tedadod in tho
responsiveness ouasory. whieh is part
of tho KOQ. M Poop®adJsg to cspsificant
commonto. tha load agency stood BOJ
rospond oGporatoly to aaeh esmmont but
ssy combine e®®aaento by oubject or
other eatopory m, «feo reoponoe.
The public partieipatioa prasQdureo
for a remedial action OEQ oot forth ia
3 300.430. Soetiea SCa8iS(c) of iubpart 1
requiroo 8feo4 e@aplioneo with the
requiremQnta @? 0 SS3.
-------
JFcdQgoil Eegjotof / Vol. S3. No. 24S / Wedaeoday. December 21. 3983 / Proposed Rules
deraioa document io oiened. This is
intended to Gacourago EOtagaua public
participation in the development of the
record.
Documents generated or received •
after rthe selection io siade do not
provide a basis for the decision and thus
generally are not part of the
administrative record except ao
provided in 0 203.S25. discussed below.
S. Administrative r&cord for a removal
action (§SG0.820I. Section 300.620
proposes requirements for
administrative records for removal
actions. It is divided into two psrts.
Paragraph (a) addressee "non-tune-
cnlicol" removal ac::ono. i.e.. those for
which, baaed oo the site evaluation, the
lead agency determines that a removal
action io appropriate and that there io a
planning period of at least six montho
before on-sitc cleanup activities) must be
initiated. Paragraph (b) addresses all
other removal actions.
Explanations of regulatory
requirements and related issues which
are the oame as those for remedial
octiono will not be repeated here. Only
requiremeaU) and issues specific to .
removal actions will be addresoed.
Section 3C0.820(a)(l) provides that the
administrative record file for o non-time-
critical removal action shall be
available for public inspection when the
engineering evaluation/cost analysis
FEE/CA) rsport is made ovailable for
public comment At that tisss. QQ
administrative record Hie shall be
established and made available to the
public and shall contain all documents
relevant to selection of the removal
action generated up through that date.
Documents generally available at that
time include (sampling data, a
preliminary aaoeoomenj report a cite
inspection report the EE/CA approval
memorandum, and the EE/CA. After She
EE/CA report io available and until the
Action Memorandum io oigned (except
as provided is Q 2CO.B23. dioeuooed
below), documento ralevaat to the
oeloctioa of the removal aetioa shot! be
added to tho adsuaioteaiJ^o record file
as diocuoood ia the remedial action
section of teday'o preasblo.
The public paftieipaSea procedureo
for Qon-&se-critJcai re&ioval aetioEo are
oet forth is Q 3CD.41S(n)(3) of Subpart E
o! todoy'o propooed regulotiono. Section
2DO.e20{a)(3) requires that eoapliaracQ
with Q 2CO.<31S(n)(3) (i) Jhsaugh (iii) be
documented for inciuoioa ia the
administrative record. The requireraento
of S 3COX11S(B)(3) (i) through (iii) include
publicatioa ef a aotice of availability
and brief description of the EE/CA:
making the EE/CA available to the
public: providing a reasonable
opportunity, not less than 30 days, for
r. of cnsamer.ls after Ihe
completion of the EE/CA: and
respondin; tc s:c?.ificant comments.
Section 300.Q20(b) provides different
procedures for tune-criticaL including
emergency, removal actions. Ao
explained earlier, sectioa 113(k)(2)(A) of
CERCLA requires procedures for the
"appropriate" partidpatioa of interested
persons ia the development of the
administrative record for reseval
actions. Appropriate participation is
oignificantly different ia situations
where an action must be taken on ahort
notce. Where the exigencies of the
situaticr. demand that cleanup be
initiated and oftea completed within
ohort Uraefrosoo. public eaasjenl
periods may delay expeditious reoponoo
to the eraergoney. In viow of
Coagressioaol iateat that public-'
participation requiremesto not iiitraper
or delay eaergeacy removal octiono.
EPA has considered aoay pptiono for
the appropriate level of public
participation. EPA must balance the
benefits of public involvement ia
advance of the oeloctioa of a resoval
action against the aeed to proceed
quickly in emergency oituotioao. !2PA
believes that the requireeieato proposed
today strike the correct balance.
EPA has had to coaoider two
questions in determining tho level of
participation for time-critical resovolo.
First, at what point should the
administrative record Slo bo mado
available to the public, and oecond.
should there be a formal public
comment period on the record? EPA is
proposing in Q 3C0.828(b)U) that for all
time-critical removslo (including
emergencies), the record file should be
made available to the public no later
than eo doyo after initiation of oa-oita
removal activity. EPA io choooing to
make the record available at tbib tesse
• recognizing that there will be stony
situations where is&mediate octioa must
be undertaken to remove threoto to
human health an&the eaviroameat
before the administrativo record flic eaa
be oosembled and placed in a public
docket for inspection. In reviewing
typical removal actiono. EPA found that
generally containment or GtabUisatioa .
(i.e.. those octmtieo tahsa to ratord.
reduce, or prevent the opraad of a
release or threat of releooo and
eliminate any i@@cdiatQ threat) at
removal oiteo oftea ore eorapleted
withia SO doyo. ClQoHy. wherd
circumotanceo warrant EPA ohould
focuo on addreosiag the threat at a oite,
and attend to adsiaiotrativo procodureo
later. The propooal sooto both SPA'o
charge to protect human health and the
environment and the requirement to
provide for appropriate public
peniciaation. by requiring that 'Jit
administrative record file be made
available to the public no later thar. Cw
days after iaitiatioa of removal
activities. Making the record available
involves: assembling the administrative
record file, identifying a publicly
accQooible loeatioa for tho roeord file at
or near tho oito. fiadisg oa oecoptabie
raewopaper and ploaag an
advcrUDcaeat ia it to aoti^f the public.
and preparing for roeaipt and evaluation
of comments. The propoaed requirement
that the file bo available "ao later than"
00 dayo dooo not preclude making the
record Slo availablo at an earlier time, if
circumotancoo allow.
EPA io aloe prapooiag ia
Q 2C0.820(b)(2) that the load agency
ohali. ao appropriate, provide a 30-day
public esssseat period to bcgis ?* **°
timo the odmiaiotraave rocord io saade
available to the public. Geaorally. when
the reraovol action hao aot been
corapleteo. a public eomsost period -will
bo coaoidered opproprioto at tho tima
the ad@Mot?otivo raesfd Slo io @ado
available to tho publie.
commeat oa whothe? public
should feo oolieited ea oetivitioo
have already been completed at the time
the record io mado ovailable. .
EPA hao alas eaaoiderod other public
participation procedures for time-critical
removab. They toeludo:
i. Requinag that the roeord file be
made availablo issodsaSely upoa
ioouing the Aetisa Momo?oadura. and
delaying the toitiatioa of eleonup until
after public eossaat io oolicitod and
responded te. Thso would allow
siaximura public pariieipatios ia
seiectioa ef eho romovoJ. but it io aot
c:.~oistent with tho aeod to pravide
prompt reopoaoo far pratectioa of
human hoolth osd Jfee oavifon&aoat at
the oite. Such as approach w@uld aloo
be inconoioteat with tho legiolotive
hiotory which ototeo that admniotTative
procedureo ootobliahod under ooction
113 ohould a@4 hamper eraoFgoaey
removal actieao.
ii. Requifiag that tha ?oee?d bo mode
available "promptly" oiter ioouiag the
ooliciteQ pablie cara@eat "oo tirae
ollowo." l^A eeaoiderod thio oo a way
of addrpao&Q feo ^djviduol aaftsra af
o aood to
pravido raeasia^u) o^pomaaJKoo for
public cosmeat ia eooeo where time
oilowo. Ao diocuoood earlier, EPA
believos reooureoo oheuld firoJ bo
directed toward sitigatiag threato ot o
time-critical removal f.ite aad thot CO
days of oa-oite work will allow thio.
However. EPA io eoaceraed that o
-------
IFedora!
/ VoL §3. No. 24S / Wedagaaoy.
cf '•prerapt" evaiiab-J:^- io too
d would bo Q ooereo ef
csrrcversy at Qoeh site. Thus. 13»A
bsiJeves an objective standard io
preferable. Similarly, while providing for
putlic comment "as time allows"
persaiis flexibility in the requirements.
oieiransie weuld require the exercise of
judpat^t cad Kreuld allow disputes over
caszpliaacs with this requirement in
individual CQOQQ. Is addition, as
discussed above, it is rare that there io
H^iicieat time before beginning a tiiae-
cntieal action to oolicit. consider and
ris^QRd to comments.
iu. Delaying the availability of the
record until X20 days after beginning
tiesnap and then ooliciting public
cossaent This approach parallels the
community relations requirements
(w.tfeia J20 days of cleanup for ongoing
taajjjuueen. a Cuiiuituiiii; cvslaUono Plan
muot bs prepared and an information
repository muot be made ev% liable: oee
g.3£SJ.<3S5(R)J. This would increase the
rrasrher-of eitoo at which cleanup hao
hefin-.esssjaleted before the public io
notified- EPA believes that the increased
provided under thia option
doec not justify the delay in
public, inuolvemeat concerning response
selection.
iv. Requiring that the record file be
made: available alter pajJsmuag
coniair.rr.ea: cr gtnfoMrotioa at a site
where disposal «a needed (over 23
percent of removals do not require
disposal) oad delaying disposal until
public comment couid be ooiicited,
evaluated and responded to. Taio
approach attempts to balance the need
for public comment with the urgency of
tne response, Limiting the response
selection undertaken w-.:.- :ut benefit of
input to those as? -.:s of-
which must be conducted
swiftly in order to protect public health
end the environment.
There ore two major difficulties with
ibis approach. The first eoncorao
precisely defining "eontaiastQat" asd
"stabilization** in thio context nad
providing indicators to mark their
cojr.pletion. While it io poooibie, Ibaoed
en experience, to oay that the
containment or stabilisation phooG @? a
removal action is geaersily completed
wiihm 83 doyo of iaiUoteag work, it io
tr.uca more di£Scuit to determine ouch
comptsiioa on a oitocpecifjc basis.
T.ie oecond difficulty with ouch a rule
is that it fails to take into account
csveral important factors which may
make such an approach infcasible in
neny caoeo. Specifically, delay of
dispooal activities may: (a) Create
additional unneceooary nako to human
health and the environment, and (b)
result in needless espenditureo of time
and sr-fincy. Site csr.ditisaa. weathe?
eoadiuono". location. p«blie aesooaibiuty.
availability cf approved disposal
facilities, availability ef treatment
facilities and the effect of the dolay oa
the otatutory time and money limitations
on removals are only come of the factora
to be eoasiderod balem a oitoby-oita
determiaotioa could bo mada oo ts
whether or not it wao proe^eabis to
oolicit public comment.
v. Making the record publicly
available as in the proposal (i.e.. so later
than SO days after initiation of cleanup).
but not formally oolici&ag any public
comment. Given the need for quich
action on time-critical removals, that
they are generally Usutod ta ocops. and
few cleanup options are feasible, this
may be aa appropriate approach. Thio
approach, however, would not provide
.he public with an opportunity for
meaningful participation where it might
be appropriate in opecific removal
situations.
EPA solicits comments on the
proposed and other canoidered
approaches to public participation oa
removal actions.
0. Adding documents ef let selection of
response action (§ 30O.SS5). Hew
documents may be added to the record
file after the decisios document io
signed only as provided in fi 303.825.
Documents generated or received alter
the decision document (e.g.. Action
Memorandum or ROD) is oigned
generally will be kept in a post-defisiaa
document fil£ unless and until a
determination io made that the
documents] should be placed in the
administrative record file, purcucat to
g 3C0.825.
Section 300.835(o) providoo Khat &B
lead agency may add poat-deciaioa
documeats to the adminia&ativG
fi!e in two oituations. The Srot otaatioa
occuro -whori the deci&iort document
does not addreos or reoerves a portion
of the response action docssioa. Is ouch
eases, the lead agency wi!J eoatoue to
add to the administrative record file
documents which form the baoio for that
portion of ths decision not addroooed e?
reserved by the decision document
Where appropriate, the load ageaey
Bbell provide public notice that the
administraSvQ record file for thio
portion of the decision sesfeueo to bo
availabiG for public mopactioa cad
corement. It should bs u&iod that thio
exception applied to iROOo that addrsoo
aa operable unit but leave a portion of
the decision on that operable tsajt open.
The oecond oituatioa arioso wfeea nn
Qnplonotion of oi^jifieoat differences
provided for in g 3CO.<33S(c) or oa
amended decision document io required.
An explanation of oignificant differencQO
is issued whsr.. after adaptiss ef a fi
action er caleFeesQat cist:en taken, or
the OGttlemeat or eeaoom decree osterod
into, oigsu^icoatly differo in ocopo.
porformoncQ ©r esot feea tho final plan.
The poeofd ohall taeiu^o aa ouploaatsea
@f oi^ifieaat diSoroasQO oad ail
that fes^ &a baoia for the
OQloetisa doetoien. Tfeo load Q§onsy ohall
publish a aetieo ©£ availability of these
jocumsnto. ao requirsd by oection Jl? of
Q SOO.
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APPENDIX M SUBPART I OF THE PROPOSED NCP
7 Vol. 33. No. 243 / Wednesday. Boeerabef 21. 1§§8 / Ppeeoaed Rales
^° acod! for o SFvaad-
Noaeod action). (G) (em gozsit
.uiroments). and (g) (ea idonSfication
(D) Section 3C3.COS(b). (e). oad (d) (on
reports of releases to the NSC):
(E) Section 300.010 (oa removal site
evaluation) easopt parogroehs (e1(3) and
(0) and tho reference to listing releaoes
in CEHCUS is (h):
(F1 Section 3C0.41S (on removal
actions! escept paragraphs ia|(2).
(b}(2:{vii). (b)(4). and fg);
(G) Section 300.420 (on remedial site
evaluation);
(H) Section 309.-330 (on RI/FS and
selection of roraody) escept paragraph
(OPHivHF): and
(I) Section 300.033 (on RD/RA and
operation and maintenance).
(ii) In addition. Qiaos- persons
undertaking response actions shall
rrovide an opportunity for public
ismment concerning the selection of the
response action. A response action shall
not bo considered consistent with the
.\'C? unless:
(A) The person taking tho response
action complied with the following MCP
provisions regarding public
participation, with the exception of
°-»minjstrative record and information
"'"• .isitory requirements stated therein:
,) Secuon 300.133 (on public
_ Jfaaotion and community relations):
(£) Section 3QO.«XS(n) (on community
relations dur.r.g reaoval actions):
(J) Section 300.430(c) (on cosseiurjty
relations during RJ/FS) escept
paragraph (3):
(<7|"Section 300.030(0(1). (25. and (5)
(on community relations during
selection of remedy): and
(S) Section 3CO.Oi .
Fe«ierai facilitv.
73
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Foderal Se^sJor / Vol. £3. No. 245 / Wednesday. Decesabef 21. ISSQ /' Proposed Hules
13) M IS?A ao iarolvod to t&o selection
o? the regpoaoe oenon at o Federal
futility ea t&e N5PL, &o IFodGrol Q0QBcy
oetiag QO tso bod agosiey ohall provide
EPA Kfith a eopy ef t&o isdes of
documents included ia the
adsimsffative raccrd flle. the Rl/FS
Kforhpion. the RJ/FS released for public
eemaoat tso proponed plan, any public
eessGnto received on the Rl/FS and
proposed p!aa. and any other documents
EPA any request oa a eaae-by-ease
bas.s.
the index of docusunis included is the
adr-.iniotrative record file, the Rl/FS
Rrorhplan. tne Rl/FS released far public
comsient. the proposed plan, ar.y public
cotamoats received ea the RJ/FS and
proposed plan, and osy other documents
EPA sisy revisit ea a esse-by-cose
basis.
(dl Aps^icsbiitiy. This oubport applies
to ail response actons token under
section 104 of CEZxCLA or sought
secured, or ordersd administratively or
judicially under section 103 of CERCLA.
OS foiiOtWG.
(1) Remedial actions where the
remedial investigation eosuaonced after
the promulgation of these regulations:
and
(2) Removal actions where the action
Eieraorandus is aijped after tbs
prcsmlgot;.-^ rf ;N*se »se'»iL=ili£r.s.
(el For those response actions sot
included in paragraph (d] of this section.
the ieod agency shall coraply uith this
subpart to the extant practicable.
The lead agency oholi establish o
docket at on otfics elf the lead ogencj- cr
other central loeafesa at '-vhich
documents included in the
odsumstrs^ve record file shall be
located and a espy of the doeasesr.s
included in ths scsunistrati^e record
fils shall oloo DQ sodo available for
puolic ^iTpection at or near the sue at
issue, exceot as crowded boiow
(&} Sampling and tssung data, quality
;;r.:rnl :r.d ~ja.::v sssu.-ar.ee
documentation, aaa cnaui of cuciocv
".'.— S '*rvi sot lr 1-JCSteC it ;r "Bar '.."-S
site at looue or st the central location.
Zfes tedos Je the
administrative foeord Sle indicates the
locatioQ and availability ef this
(b) Cuidoseo dssuraento sot
generated specifically for the site at
issue need not bo located at or near the
oite at issue, provided that they ore
Biotstataed at tfao eans-a! location and
the sasoa Jo tfeo adssinistrativo rceerd
ale indicates the Iceaaon and
availability of those guidance
(c) Publicly available technical
literature not generated for tho site at
issue, ouch as eneineemg textbooks.
articles froia tee^aacai jouraolo. and
tosucoismeal ppefrieo. aood set bo
locstad at or soar tho oito at SOOMO e? at
tho ean&al iscstien. provided that the
literature io Iksted m tho mean to sho .
adsiSjafrotivG roeerd ftio ar the
literoture io eited in a deeusoat is tho
record.
(dl Doeiaeato included is the
adnunistrauvo Foesi^ file shall be
located only in tfeo eoa&al location.
(s) Tbo odsysjotratsvo (roccsrd fer a
removal action rohafo the fQioapo e?
throat of FQ!OQOQ roguiTOO that @a-oite
rsasvol acnvitiGO bo s
LOUTS of the load agoney'o
tha; a removal CD appTep^ato and oa-
site reaovol oe3inBS3 eooco wjihia 30
dayo of iaiuation. acsd be available for
pubhe taopccUon cniy at the eoatral
location.
S 363.0 1 6 €©fl$oma ©1 @?o cstetetosraauo
(a) Contents. The administrative
record £Jc for oelecuon of a rooponos
action nfpicaUy. but set la.oi! caseo. will
contain tkc followmg types of
document:
fll Dccuaeata eop.taining factual
infcfs-.QUoa, data, and analysis of the
factual isiofmaucs and data that stay
forst Q basso for the selection of the
response aetien. Sueh^ocufflento mov
include ver.Esd sarapling data, quality
ccn.Tol and quality aosuronce
docusiQntacon. chain of custody forms.
site inspection reports, preliminary
assessment and site evaluation reports.
AT5DR heal& oooeooraer.t. docusfinlfl
oupporung the load agency's
detefmiaonon of ^miaent qad
substantial Esjdar.gQ?me?2«; public health
evaluations, aad Seghsucol and
engineering evaluations. Sn addition, for
remedial actions, ouch documents aoy
inciude approved work piano. State
documentation of applicable or relevant
snc a=prcpna:e recuirsmer.:s. and ihs
RJ/FS-'
tfeat siay $@?m a feaoio fer
8ho ooloetioia
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51316 FodaraJ Renter / Vol. 53. No. 245 / Wednesday. December a. IMS / Proposed Rule*
csr»l"ic*r>i,«; or privileged tiocument
ussl; «.-.-» si placed ut tiw coondenuai
ocirucn c." :r.» administrative ricord file.
?/-— <-xm*tipn. such as confidential
s inform: lion. cannot be
i ..:ie^ x a disposable manr.er
rne iniorrr.a'.ion snail be placed only :n
the confidential portion of '-he
administrative record Hie. Ail
socuaiems contained in the confidents!
portion of the administrative record fiie
ssal! be hsied in the index to the file
j 300.31 S AdiMMatrathre ncora *or s
r«ni»gii) action.
U) The administrative record file for
the seiection of a rened;a! action shall
be made avaiiabie for public inspection
at the commencement of the remedial
investigation phase. At such time, the
lead agency shall publish in a msior
ieca: newspaper sf per^r*; Cbwuiauori •
sauce of the availability of the files
containing the administrative record.
(b) The lead agency shali prov •-? a
puhu: comment penod as soecife: IT.
{300.430(0 so that interested persons
may submit comments on the selection
of the remedial action for inclusion in
the administrative record file. The lead
jcency is not required to respond to
ccnur.ents that were submitted pnor to
me public comment penod. A written
response to significant comments
sur*5-;r.«d dur:n; L-.B public common-
all be included in '.he
.ra'.ivc record Tie
,'cj'The lead azency snal! comply voth
•ne public participation procedures
required in I 300 4301 fl and shall
document such compliance ir. the
acminurrative record.
iJi Documents generated or received
Alter the record of decision is signed
shall be added to the administrative
record fiie only as provided in } 300.125
} 300.IM
record tor a
al action.
(a) If. based on the site evaluation, the
eac agency determines that • removal
•cuon is appropriate and that a planning
ser.od of at least six month* edits
aeforc on-site removal activities must be
minted:
(l) The adiouustrative record file shall
jt made available for public inspection
*nen the engineering evaiuauon/cost
maiysia (EE/CA) u made available for
lubhc comment. At such use. the lead
igency shall publish in a maior loc*l
•ewspaper of general urculaticn a
otic- of the availability of ine fue
nniairutvg the administrative record.
{2} The lend agcnc> shall provide a
-I- -unen: penod as specified ic
"K ,o that interested persons me\
ubri.-n-cSmmcnts on the seiection o.' :ne
"ova: action for inciu&ior. in the
agency is not required to respond to
comments that wers submitted pnor to
the public comment penod. A wntten
rexpor.se to significant comments
suomitted dunng the public comment
period so&li be included in the
administrative record file.
(3) The iead agency shall comply with
the public participation procedures of
f 300.4lSln) and shall document
compliance with 1300.413(n)(3) (i)
through (111) in the administrative record
fiie.
(4) Documents generated or received
after the acuon memorandum is signed
shall be added to the administrative
record fiie only as provided in i 300.825.
(b; For all removal actions not
included in paragraph (a) of this section:
(1) Documents included in the
•liinunstraave record fiie shall be made.:
avaiiabie for public mspect-.cn no later
than 60 days after initiation of on-site
removal activity. At such time, the lead
agency shall publish in a maior local
newspaper of general circulation a
notice of avaiiabdiry of the file
containing the administrative record.
(2) The iead agency shall, as
•ppropnate. provide a public comment
penod of not less than 30 days beginning
at tne time the administrative record is
made avaiiabie to the public. The lead
agency is not required to respond to
comments that were submitted pnor to
the public comment period. A wntten
response to significant comments
submitted during the public comment
period shall be included is the
admuus7a:ive record file.
(3) Documents generated or received
after the action memorandum is signed
s.ia: be added to thr administrative
record fiie only as crsvided in 1300.825.
IMO.S2S ftecora r««uir«*M«t» after
* oocuwtont la
(a) The lead agency may add
documents to the administrative record
file after the decision document
•electing the response actior. has been
signed if:
(1) The documents concern a portion
of a response acuon decision that the
decision document does not address or
reserves to be decided at a later date: or
(2) An explanation of significant
differences required by I M0.435(c), or
an amended decision document is
ivaued. m which case, the explanation of
significant differences or amended
decision document and all documents
that form me basis for the decision to
modify the response action shall be
added to the administrative record fiie.
[b) The iead agency may hold
additional public comment penods or
extend the time for tne submission of
r~~'.-.z uisacr.: kf:c: • c-i.i*iar.
document has been signed on any issues
concerning selection of tne response
acticr.. Such comment sh«U be limited to
the issues for which the lead agency has
requested additional comment. All
additional comments submitted dunng
such comment penods that are
responsive to the request, and any
response to these commenta, shall be
placed in the administrative record file.
(C, The lead atenny is required to
consider comwtsti -ubmmed by
interested persons after the close of the
public comment penod only to the
extent that the commenta contain
significant information not contained
elsewhere in the administrative record
which could not have been submitted
during the public comment period and
which substantially support the need to
signifies—ly alter the response action.
All such comments and any responses
thereto shall be placed in the
administrative record file.
Subport J—UM of Dtep«r*«nte and
Other Chemical*
(a) Section 31l(c)(2)(C) of the Clean
Water Act requires that EPA prepare a
schedule of dispersants and other
chemicals, if any. that may be used in
earning out the NCP. This subpan
' makes provisions for such a schedule.
(b) This subpan applies to the
navigable water* of the United States
and adjoining shorelines, the waters of
the contiguous zone, and the high seas
beyond the contiguous zone in
connection with activities under the
Outer Continental Shelf Lands Act
activities under the Deepwater Port Act
of 1974. or activities that may affect
natural resources belonging to.
appertaining to. or under the exclusive
management authority of the United
States, including resources under the
Magnuson Fishery Conservation and
Management Act of 1978.
(c) This eubpart applies to the use of
any chemical agenta or other additives
as defined in Subpan A of this Pan that
may be used to remove or control oil
dischargee.
(a) Oil Ditehefftt. (1) EPA ahall
maintain a schedule of diapersants and
other chemical or biological products
that may be authonzed for use on oil
discharge* is accordance with the
procedures set forth in I 900.910. This
schedule, called the NCP Product
Schedule, aay be obtained from the
Emergency Response Division (OS-210).
U.S. Environmental Protection Agenr/.
75
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