UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D C. 20-560
0 7 [gg^ OFFICE Of
SOLID WASTE AND EMERGENCY
RESPOoE
MEMORANDUM
SUBJECT: Interim Final National Corrective Action Policy for
USTs in Indian Country
FROM: Lisa Lund, Acting Director _7v >''- 7V-- • v."
Office of Underground Storage Tanks
TO: Regional Program Managers, Region 1-10
f
Attached is OSWER Directive 9610. 9A, Interim Final National
Corrective Action Policy for USTs in Indian County. This interim
final policy is effective immediately and supersedes OSWER
Directive 9610.9. As with the UST National Indian Country Policy
Statement, we are issuing this policy as "interim final" because
we may wish /to revise it based on tribal comments and our
experience using it. /
You are encouraged to share this interim final policy with
interested tribes in your region. We ask that tribal comments be
directed to the regions. Please forward any comments you receive
to us and let us know if we can be of assistance to you by
providing additional copies for distribution.
If you have any questions or comments, please contact Bill
Lienesch at 703-308-8873 or Maria Hebenstreit at 703-308-8565.
cc: Larry Brill, Region 1
Stanley Siegel, Region 2
Maria Vickers, Region 3
Mary Kay Lynch, Region 4
Norman Niedergang, Region 5 .
Willie Kelly, Region 6
Bill Pedicino, Region 7
Stephen Tuber, Region 8
Laura Yoshii, Region 9
Lauris Davies, Region 10
R«cycl«d/R«cyclaM« • Primed wiffi Vegetable Oil Based Inks on 100% Recycted Paper (40% Postconsumer)
-------
OSWER DIRECTIVE 9610.9A
OSWER DIRECTI71 9610.91
INTERIM FINAL NATIONAL CORRECTIVE ACTION POLICY 70R D8T8
IV INDIAN COUNTRY
I. Purpost
This guidance document is designed to provide direction to
Underground Storage TanJc (UST) Prograa regional office personnel
for the initiation and coordination of federal-lead corrective
actions in Indian Country in response to petroleum releases from
UST systems. The guidance discusses how to determine if LUST
Trust Fund money may be used and what documentation is necessary
for undertaking federal-lead corrective action in Indian Country.
The guidance also establishes a policy for cost recovery for
cleanups conducted in Indian Country using LUST Trust Fund money.
This guidance document supersedes the Interim Guidance on
Conducting Federal-lead UST Corrective Actions for Petroleum
Releases on Indian Lands (OSWER Directive 9610.9) and supplements
the LUST Trust Fund Cooperative Agreement Guidelines (OSWER
Directive 9650.10A) and Cost Recovery Policy for the Leaking"
Underground Storage Tank Trust Fund (OSWER Directive 9610.10A).
The cfuidance for conducting Federal-lead UST Corrective Action
for States (OSWER Directive 9360.0-16A) remains unchanged.
Regional office personnel should continue to follow applicable
policies and procedures for federal-lead corrective actions as
described in OSWER Directive 9360.0-16A.
The policies set out in this memorandum are not final agency
action, but are intended solely as guidance. They are not
intended, nor can they b« relied upon, to create any right,
benefit or trust responsibility, enforceable by any party, in
litigation with the United States; EPA officials Bay decide to
follow guidance provided in this memorandum, or to act at
variance with the guidance, based on an analysis of site specific
circumstances. The Agency also reserves the right to change this
guidance at any time without prior notice.
ZZ. Background
Section 205 of the Super fund Amendments and Reauthorization
Act (SARA) amended Subtitle I of the Solid waste Disposal Act
(SWDA) to give EPA and states, under cooperative agreements, the
authority to respond to petroleum releases from leaJcing USTs.
The amendments also established a LUST Trust Fund to finance both
federal and state UST prograa activities. States receive money
from the LUST Trust Fund by entering into cooperative agreements
with the federal government. However, EPA does not enter
directly into LUST Trust Fund cooperative agreements with Indian
tribes. RCRA Section 8001 grants, on the other hand, have been
awarded to Indian tribes. Those grants are available for
-------
OSWER DIRECTIVE 9610.9A
"research, investigations, experiments, training, demonstrations,
surveys, public education programs, and studies," and say b« used
to fund cleanups to the extent that the cleanup can be
legitimately characterized by one of the above statutory terns.
In July 1989, the Office of Underground Storage Tanks (OUST)
issued interim guidance for conducting federal-lead UST
corrective actions in Indian Country. The guidance discussed
procedures to be followed, including how to determine whether
federal-lead corrective action is justified, and what
documentation is necessary for undertaking federal-lead UST
corrective actions in Indian Country. The guidance recommended
that federal-lead involvement in corrective actions in Indian
Country be limited to cases in which (1) there is a serious
"time-critical" threat to human health and the environment; (2)
the tribe is unable to respond; and (3) the owner/operator is
unable or unwilling to provide an adequate and timely response.
The guidance defined "time-critical" as either an immediate
threat—a release that may require response within hours or days
of discovery—or a near-term threat—a release that may require
response within six months. Recognizing that many Indian tribes
lacked the resources or capability to oversee or conduct
corrective actions, the guidance set forth criteria for
initiating a federal response to releases in Indian Country that
were less stringent than those set forth in the guidance for
federal-rlead correction action* in States (see OSWER Directive
9360.0-16A, Guidance For Conducting Federal-Lead Underground
Storage Tank Corrective Actions). However, the interim guidance
did not address long-term corrective actions in Indian Country.
The focus of the 1989 interim guidance on federal-lead
corrective actions was sites that posed a "time-critical" threat
to human health and the environment. This new guidance document
addresses all sites that meet the criteria for a federal response
set forth in Section 9003 of RCRA. It makes explicit that EPA
will not limit federal-lead corrective action in Indian Country
to only those sites that pose a "time-critical" threat, but will
consider all sites which may become a threat to human health and
the environment.
The successful implementation of this policy is contingent
on a sufficient level of resources. EPA receives limited
resources to implement a comprehensive UST program in Indian
Country, including federal-lead cleanups. The application of
limited resources to federal-lead cleanups must occur within the
context of ensuring that sufficient resources remain to
successfully implement a comprehensive UST program in Indian
Country.
-------
OSWER DIRECTIVE 9610.9A
III. Criteria for corrective Action
The basic criteria for a federal response are eet forth in
Section 9003(h) of Subtitle I of the Resource Conservation and
Recovery Act (RCRA). Section 9003(h) provides that a response
aay b« conducted only if corrective action is necessary to
protect human health and the environment and one or more of the
following criteria are net:
o Ho person can be found, within 90 days or such shorter
period as may be necessary to protect human health and the
environment, who is—
an owner or operator of the tank concerned
subject to corrective action regulations, and
capable of carrying out such corrective action properly
o The situation requires prompt action to protect human health
«md the environment;
o Corrective action costs exceed the financial responsibility
requirements established for the tanks, and expenditures
from the LUST Trust Fund are necessary to ensure effective
action; or
o The tank owner or operator has failed, or refused, to comply
vith an administrative order to perform corrective action.
Kith respect to federal-lead corrective actions and the
issuance of administrative orders, priority should b« given to
releases posing the greatest threat to human health and the
environment. EPA regional offices will use a risk-based
corrective action process that categorizes sites according to
risk to human health and the environment to make these
distinctions. When necessary, prioritization within categories
will be utilized to determine which sites get funded. EPA
headquarters intends to work with regional offices to develop a
national risk-based corrective action process in FY 1996.
XV. Eligible Activities
Once a decision has been made that a site is eligible for
LUST Trust Fund financing and that the risk posed by the release
warrants federal action, the following general categories of
activities may be conducted using monies from the LUST Trust
Fund: exposure assessment, provision of temporary and permanent
alternate water supplies, relocation of residents, enforcement,
corrective action, and cost recovery. These general categories
-------
OSWER DIRECTIVE 9610.9A
include, but are not necessarily limited to, the following
specific allowable activities:
emergency response and initial site hazard mitigation;
investigation of suspected releases and source
identification up to the tine that a release is determined
to come from an unregulated source;
exposure assessment to determine potential health effecte of
a release and the establishment of corrective action
priorities;
development, issuance, and oversight of enforcement actions
directed to responsible owners and operators;
cleanup of releases;
long-term operation and maintenance of corrective action
measures;
purchase and/or lease of equipment;
recovery of costs froa liable UST owners and operators; and
reasonable and necessary administrative and planning '/
expenses directly related to these activities.
V. Managing Non-Responsible Party-Lead Corrective lotions
in Indian Country
When a release is discovered, EPA should first Bake a
reasonable effort to contact tank owners and operators who are
responsible for the release and notify then of their
responsibility to undertake corrective action. (In cases when an
Indian tribe has developed its own UST codes, the tribe say also
be involved in contacting and notifying owners and operators of
their responsibility to undertake corrective action.) LUST Trust
Fund dollars should be relied on to clean up a site only when a
responsible tank owners and operators who will undertake
corrective action properly and promptly cannot be identified,
when the responsible party (RP) has proven to be insolvent based
on financial analysis, when enforcement actions taken to compel
the RP to action have been ignored or otherwise ineffective in
compelling compliance, or in emergency situations (see the
section on delegations of authority below). When the LUST Trust
Fund is used, UST owners and operators are liable to the federal
government for costs incurred and are subject to cost recovery
actions.
-------
OSWER DIRECTIVE 9610.9A
Once a decision haa been made that a site is eligible for
LUST Trust Fund financing and that the risk posed by the release
warrants federal action, EPA regional offices should follow
applicable procedures specified in OSWER Directive 9360.0-16A for
managing accounting information, initiating on-site actions, and
managing federal-lead UST corrective actions. In general,
feders.l-lead remedial response for UST releases should be
performed by the sajne EPA contractors that conduct oil and
hazardous substance corrective actions or by state contractors or
by other means deemed appropriate.
It should be noted, however, that the fact that a site is
determined to warrant use of the LUST Trust Fund for a federal
action does not necessarily require that the region take the lead
in remediating the site, i.e., states may be designated the lead
agency for conducting a cleanup in certain circumstances. When a
region wants to be able to designate a specific state as a lead
agency in the event of a release in Indian Country in that state,
the region should include language in that state's cooperative
agreement to allow it to be the lead agency pursuant to
appropriate tribal consent and regional approval for cleanup
costs and options at a specific site. In cases when the state is
designated the lead agency for conducting a cleanup, it may be
appropriate for the state to be involved in cost recovery. In
these cases, ^regions should consult with OUST/ for more specific
guidance. /
VI. Cost Recovery
The primary purpose of cost recovery (OSWER Directive
9610.10A, Cost Recovery Policy for the Leaking Underground
Storage Tank Trust Fund) is to provide incentives for owners and
operators to comply with the technical and financial
responsibility requirements, and most importantly clean up
releases from their own tanks. To ensure the most efficient and
effective use of resources, OUST's national cost recovery policy
gives the states considerable discretion in operating their own
cost recovery programs. This flexibility is extended to EPA
regional offices as they consider cost recovery actions in Indian
Country. The following guidance describes fundamental components
of regional cost recovery programs for Indian Country.
As the current cost recovery policy recognizes, EPA regional
offices have the discretion to determine when and how they should
pursue cost recovery for sites in Indian Country. A regional
office1 s pursuit of cost recovery should be based on the
following factors: solvency of the RP, the cost of the cleanup,
the likelihood of recovery, the deterrent value of the case and
the opportunity costs (see OSWER Directive 9610.10A, Section E).
-------
OSWER DIRECTIVE 9610.9A
In general, cases when owners/operators are not in compliance
with the financial responsibility requirements or are
recalcitrant, but financially solvent, should be considered high
priority. If the RP is insolvent or financially distressed, or
the expense of pursuing cost recovery is likely to exceed the
cost of the cleanup, the case should be deemed a low priority.
Regional offices are expected to establish region-specific cost
recovery procedures that are consistently followed.
When LUST Trust Fund money is expended at a leaking UST
site, the owner and operator are liable for all costs of
corrective action and enforcement, including interest, and
indirect and management and support costs associated with these
activities that are paid for by the Trust Fund (see OSWER
Directive 9610.10A). Where the region expends Trust Fund money
for corrective action or enforcement, and action thresholds (see
OSWER Directive 9610.10A, Section F) have triggered site-specific
accounting, the region should pursue recovery of costs from
responsible parties or must document in writing a decision not to
and the reason why.
Regardless of the action taken by the region in exercising
its discretion in cost recovery cases, it is expected to fully
document its decisions and to formally close out cases. Regional
cost recovery activities in Ind/ian Country should reflect
decisions that are in the best interests of the overall Indian
Country program and the efficient use of Trust Fund monies. For
further clarification of the above guidance, consult OSWER
Directive 9610.10A.
VII. Delegations of Authority to Initiate Corrective lotion ia
Indian Country Funded by the LUST Trust Fund
Expenditure Levels; The current authority for initiating
federal-lead corrective actions in Indian County is set forth by
Delegation 8-33 and further clarified in OSWER Directive 9610.9.
Pursuant to the existing delegation and directive, Federal-lead
UST corrective actions that initially cost over $250,000 require
approval of the Assistant Administrator (AA), Office of Solid
Waste and Emergency Response (OSWER). The Office Director (00)
of the Office of Emergency and Remedial Response (OERR) must
approve actions that cost up to $250,000 and ceiling increases
that bring the cost of an action up to $250,000, with concurrence
from the OD, Office of Underground Storage Tanks (OUST). In
addition, Regional Administrators (RAs) may approve action*
costing up to $50,000 in acute, life-threatening situations where
response must be initiated before headquarters can be contacted.
This authority may be redelegated to Division Directors and
On-Scene Coordinators.
-------
OSWER DIRECTIVE 9610.9A
Headquarters intends to revise the delegation as follows:
o Regional Administrators (RAs) may approve action* costing up
to $50,000 in acute, life-threatening situation* where
response must be initiated before headquarters can b«
contacted. This authority may be redelegated to Division
Directors.
o The Office Director of the Office of Underground Storage
Tanks will approve actions that initially cost between
$50,000 and $250,000 and will approve ceiling increases that
bring the cost of an action over $50,000.
o UST corrective actions that initially cost over $250,000 and
ceiling increases that bring the cost of an action over
$250,000 require approval of the Assistant Administrator,
Office of Solid Waste and Emergency Response.
These delegations changes will also apply in cases when a state
is designated the lead agency for conducting a cleanup.
Headquarters will notify regional offices when the revised
delegation is effective.
Funding Sources; In exercising this authority, regions are
limited to expending funds already committed to or in the
possession of the region unless OUST has authorized additional /
funds in writing. The delegation should in no way b« construed
to authorize regional managers to expend headquarters funds
without express and prior approval.
VIII. Approval Process
LUST Trust Fund-financed corrective action in Indian Country
should be approved only if the criteria outlined in Section 3 are
met and the risk posed by the sits to human health and the
environment warrants federal action. To initiate headquarters
approval of a LUST Trust Fund-financed action in Indian Country,
the Regional Division Director or higher regional management
official must submit a written request to the Office Director of
the Office of Underground Storage Tanks. The written request
should address the following topics: site location; nature of the
incident; quantity and types of substances released; potential
receptors; estimated total cost to remediate the site; amount and
source of funds already spent to stabilize or remediate the site;
and, attempts made to locate and compel the responsible party to
undertake cleanup.
-------
OSWER DIRECTIVE 9610.9A
CONCLUSION
This policy document sets forth basic criteria for federal-
lead corrective actions in Indian Country in response to
petroleum releases from UST systems. The policy establishes that
all sites that meet the legislative criteria found in Section
9003 of RCRA will be considered for federal response.
Furthermore, it says that EPA regional offices will use a risk-
based corrective action process to give priority to releases
posing the greatest threat to human health and the environment.
Although EPA receives limited resources for program
implementation, including federal-lead cleanups, EPA believes
that implementation of this policy will lead to improved
corrective actions of UST releases in Indian Country.
8
------- |