oEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER:
9360.0-11
TITLE: Environmental Review Requirements fo:
Removal Act;ons
November 13, 1986
November 13, H86
OERR/ERD
APPROVAL DATE:
EFFECTIVE DATE:
ORIGINATING OFFICE:
D FINAL
Q DRAFT
STATUS: Level C
REFERENCE (other documents):
s 9360.0-3A Supe-fjnd Removal °rocedures, Revision 2
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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oEPA
United States Envlfonmental Protection Agency
Washington, DC 20460
OSWER Directive Initiation Re
2. Originator Information
Mail Code Office
WH-548/B OERR/ERD
1. Directive Number
uest
9360.0 - 11
Name of Contact Person
Cheryl Hawkins
3. Title
Telephone Number
Environmental Review Requirements for Removal Actions
4. Summary of Directive (Include brief statement of purpose)
Describes the removal program's procedures for meeting the review requirements
of the National Environmental Policy Act.
5. Keywords
Superfund, CERCLA, Removal actions,
6a. Does this Directive Supersede Previous Directive(S)?
Review, NEPA
What directive (number, title)
b. Does It Supplement Previous Directive(S)?
Wi Yes
o No
What Directive (number, title)
9360.0 - 3A
Superfund Removal Procedures, Revision 2
7., Draft Level
o A - Signed by AA/DAA
;
o B - Signed by Office Director
@ C - For Review 8& Comment
o In Development.
This Request Meets OSWER Directives System Format
. Sign of Lead Office Directi Coordinator
.0
Date
11/13/86
Date
Timothy Fields, Jr., Director, Emergency Response Division
11/13/86
OSWEROSWER OSWER
DIRECTIVE DIRECTIVE J
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
NOV I 3 i9a6
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
OSWER Directive 9360.0-11
MEMORANDUM
SUBJECT:
Request for Comments on "Environmental Review Requirements for
Removal Actions" ~
. -..
Timothy Fields, Jr., Directo J
Emergency Response Div;sion (WH-54~~
FROM:
TO:
Addressees
Attached is a final draft of the Emergency Response Division's (ERD's)
proposed policy for addressing the requirements of the National Environmental
Policy Act (NEPA) relative to Superfund removal actions. This paper has been
developed through consultation with the Office of General Counsel and the
Hazardous Site Control Division. Please review this document and forward your
comments to Sherry Hawkins (WH-548/B), ERD (phone 382-5650) by COB November 20,
1986.
Attachment
Addressees:
Karen Clark, OGC
Daniel Berry, OGC
Russ Wyer, HSCD
Clem Rastatter, OERR
Jack Stanton, OWPE
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ENVIRONMENTAL REVIEW REQUIREMENTS FOR
REt{)VAL ACTIONS
OSWER DIRECTIVE' 93!SO..O-11/1In/K
DRAFT
ISSUE
Under the revised National Oil and Hazardous Substances Contingency Plan
(NCP), the definition of removal has been expanded to include all
activities formerly considered immediate and planned removals, as well as
initial remedial measures (IRMs). In addition, removal actions may be taken
in response to a "threat" rather than being limited to "immediate and
significant" threats. As a result of these changes, removal actions may now.
be undertaken in less urgent situations than before. Because longer
lead-time will be available for some removal actions, this extension of
removal authority raises the question of whether certain removal actions
s hou 1 d be su bj ec t to a forma 1 env i ronmenta 1 rev iew and pu b 1 i c conm ent
period.
BACKGROUND
NEPA requires every Federal agency to incorporate the consideration of
environmental factors into its decision-making process. Specifically, ~PA .
requires Federal agencies lito the fullest extent possible" to prepare an
Environmental Impact Statement (EIS) for all "major Federal .actions
significantly affecting the quality of the human environment." The EIS must
include consideration of alternative actions, analysis of the environmental
impact of the proposed actions, and an opportunity for public comment.
An exemption for Federal agency actions has been recognized by the courts in
. situations where compliance with EIS requirements would result in a "clear
and unavoidable confl ict" with the purpose or procedures of the agency's
authorizing statute. This exemption has been applied to cases where it
would be impossible for an agency to adhere to the formal EIS process and at
the same time comply with a requirement for .prompt action, such as that
mandated by EPA I S removal authority under CERCLA.
Under the old NCP, removal actions were divided into two categories --
immediate removals and planned removals. Inmediate removals were undertaken
where immediate response was. necessary to prevent significant harm to human
health or the environment. . Planned removals were undertaken where an
expedited, although not necessari~y immediate, response was necessary. Due
to the focus of inmediate and planned removals on emergency and
near-emergency situations, removal actions were not subject to NEPA EIS
requirements on the grounds that the CERCLA requirement for prompt action in
such cases conflicted with the EIS process mandated by NEPA.
With the expanded removal authority in the new NCP, however, sane removal
actions may be undertaken in less urgent situations than was previously
possible. For example, certain removal actions at NPL sites (Expedited
Response Actions) may not be initiated until several months after the site
is mobilized. In such situations, the exemption is EIS requirements based
on a CERCLA mandate for prompt action would not be applicable. The removal
program must therefore develop a policy to ensure that these types of
actions are subject to an adequate environmental review and public comment
period.
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2. Generic Exclusions. EPA may determine that certain categories of
removal actions do not require extensive environmental .review if those
actions do not individually, cumulatively over time or in conjunction with
other Federal, State, local or private actions have a significant effect on
the quality of the human environment. Removal actions would not be eligible
for Generic Exclusions if any of the following are true:
. The action may involve serious local or environmental issues.
. The action will create a new or move an existing discharge to any
environmental media.
. The action is known or expected to have a significant effect on the
quality of the human environment.
. The action is known or expected to directly or indirectly affect
cultural resource areas such as an:haeological or historic sites;
habitats of endangered or threatened species; environmentally
important natural resources such as floodplains, wetlands, important
farmlands or aquifer recharge zones.
. The action is known or expected not to be cost-effective or to cause
significant public controversy.
New categories of Generic Exclusions may be created if:
. Actions in the proposed category seldom result in the effects
described above.
. Based on previous environmental reviews, actions consistent with the
proposed category have not required "an EIS.
.
Information adequate to determine if a potential action is
consistent with the proposed category will be available when
needed.
EPA fully supports the intent of NEPA and encourages public participation in
the selection of actions at removal sites wherever time permits. There
are, however, several categories of action where the need for the action is
apparent, there are no reasonable alternatives, and there are seldom any of
the environmental issues identified above related to the action.
Examples of these kinds of actions include:
. Provision of fences, warning signs, or other site
precautions to prevent direct access.
. Drainage controls to prevent run-on.~r run.off,
. Stabilization of berms or dikes where needed to maintain the
integrity of the structure.
control
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The purpose of this paper is to: I} define which removal actions will
require an environmental review and public comment period; 2} describe the
mechanisms that may be used to provide an adequate review; and 3} recommend
a strategy for implementation.
DEFINITIONS
For purposes of compliance with NEPA requirements, the following categories
of removal action are proposed:
1. Classic Emergency Removal Actions are actions initiated in response to a
release or threat of release that poses a risk to pUblic health or welfare
or the environment, such that cleanup or stabilization actions must be
initiated within hours or days after completion of the preliminary
assessment, regardless of cost or duration of the response. Such actions
could include, but are not limited to, response to a fire in a chemical
warehouse, response to a tanker truck accident that releases hazardous
substances, or response to leaking drums that pose an explosion hazard.
2. Time-Critical Removal Actions are actions initiated in response to a
release or threat of release that poses a risk to public health or welfare
or the environment, such that cleanu~ or stabilization actions must be
initiated within 6 months after comp etion of the preliminary assessment,
regardless of cost or duration of the response (excluding Classic
Emergencies). Examples include response to an industrial site in a
residential area containing open tanks of hazardous substances and spilled
materials, response to a facility containing eroding unlined waste lagoons,
or response to an unregulated waste dump containing scattered piles of
deteriorating drums.
3. Non-Time-Critical Removal Actions are actions initiated in response to a
release or threat of release that poses a risk to public health or welfare
or the environment, such that initiation of removal cleanup or stabilization
actions ma be del a ed for 6 months or more after completion of the
pre lmlnary assessment, regar ess 0 cost or duration of the response. An
example of such an action might be response to an abandoned industrial dump,
isolated from public access, which poses a potential threat to groundwater
if not cleaned up. Cleanup may also be delayed in situations where
hazardous substances have been 'abandoned on a site, but the substances are
in stable containers and secured from public access. A final example might
be an asbestos deposit that is currently stabilized. The two primary'
considerations in determining whether site response can be delayed are the
stability of the wastes and the potential for public contact.
Application of Definitions: Classic Emergency and Time-Critical Removal
Actions would be exempt from compliance with EIS requirements based on
statutory confl ict (i .e., the CERCLA directive for prompt action).
Non-Time-Critical Removal Actions would require environmental review and
publ ic comment.
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,I
. Minor rehabilitation of exisiting treatment facilities or
structures.
. Replacement of equipment.
. Temporary continuance of pumping, treatment, or disposal operations
initiated by States or local governments and tenninated for lack of
State or local funding.
Such actions, where part of a Non-Time-Critical Removal Action, may be
eligible for a Generic Exclusion if they meet the criteria described above.
Use of a Generic Exclusion would require that the public be informed that an
action has been detennined to be eligible for a Generic Exclusion. When the
Action Memorandum is signed, such notice must be provided in a newspaper of
general circulation in the area. The agency may not comnence the action for.
at least 30 days after publication of the notice. I
IMPLEMENTATION STRATEGY
As stated earlier, Classic Emergency and Time-Critical Removal Actions would
be exempt from t£PA requi rements based on statutory ,confl ict. It shou ld be
noted~ however, that an analysis of alternatives is part of the Action
Memorandum for all removal actions, although it need not be extensive if
time constraints preclude detailed analysis.
For Non-Time-Critical Removal Actions, adequate time would be available for
a formal environmental review and public comment period. Six months
lead-time is a sufficient period in which to conduct a detailed EE/CA and
provide opportunity for public comment. ' ,
To fulfill environmental review requirements for Non-Time-Critical Removal
Actions, ERO proposes the following:
1.
After consultation with the OFfice of General Counsel (OGC), ERO
will determine those classes of removal actions that would be
eligible for Generic Exclusio'ns. For these actions, OSCs/RPMs
would give appropriate public notice that the proposed action has
been determined to be eligible for a Generic Exclusion.
For all other Non-Time-Critical Removal Actions, OSCs/RPMs will be
required to prepare a detailed EE/CA. The EE/CA should satisfy the
functional equivalency test of t£PA and include an opportunity for
public COO1T1ent.
2.
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ENVIRONMENTAL REVIEW MECHANISMS
The removal program may use two mechanisms to provide an environmental
review for Non-Time-Critical Removal Actions: 1) perfonTIing an
environmental impact analysis as part of the Engineering Evaluation/Cost
Analysis; and 2) declaring a Generic Exclusion for certain types of actions.
1. En~ineering Evaluation/Cost Analysis. The courts have developed an
except 10n to the E IS requi rement for EPA where the agency achieves the ~PA
objective of full consideration and disclosure of environmental effects
through means comparable to an EIS. This exemption is commonly known as the
"functional equivalency" exemption.
The Emergency Response Division (ERD) and Hazardous Site Control Division
(HSCD) are currently developing procedures for conducting an Engineering
Evaluation and Cost Analysis (EE/CA). Essentially, the EE/CA will be an
analysis of alternatives that documents the reasons for choosing the:
proposed removal action. The level of detail in the EE/CA will vary,
depending primarily on the time available before the response must be
initiated. The project cost, project complexity, and the maturity of the
removal technologies considered will also be factors in detenTIining the
extent of the analysis. The scope of the EE/CA will correspond to the scope
of the project. Many removal actions are relatively simple and do not
require extensive analysis.
For removal actions that can be deferred for 6 months or more, the EE/CA
will include the following:
. Identification of site problems
.
Identification of removal response alternatives
. Screening of alternatives based on two factors:
- Is the option timely with respect to emergency mitigation and
p rog ram goa 1 s?
- Is the option fully protective of human health and the environment
(i.e., does the option meet applicable or relevant and apPrQpriate
legal requirements)?.,
. Analysis of alternatives based on four selection
- Rel iabiltity, technical feasibil ity
- Reasonable cost
- Administrative/managerial feasibility
- Environmental impacts
criteria:
. Opportunity for public comment.
Thus, for removal actions where sufficient time is available, an analysis of
environmental impacts will be performed that is comparable to an EIS and in
p roport i on to the scope of the p roj ect.
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