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)

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                                           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

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                                            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.

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                                           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

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                                           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.

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                                            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).

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                                           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.

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                                           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.

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                                          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.
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