3 EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER:
9360.0-6A
TITLE:
Relationship of the Removal and Remedial Programs
Under the Revised NCP
APPROVAL DATE: 3/17/86
EFFECTIVE DATE: 3/17/86
ORIGINATING OFFICE:OERR
5 FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
SUPERSEDES // 9360.0-6
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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SEPA
Jjnmo S(itev£nvironmentai:ProiiCtion Ag«ncy-
Wasnington. DC 20460
OSWER DirectiveMnitiation Request
Interim Directive Numoer
Originator information
Contact Person
Cheryl Hawkins
Mail Codt
WH-548B
Telepnone Numoer
382-5650
U OUST
D OWPE
O AA-OSWER
ilia
"Relationship of The Removal and. Remedial ProgramSUntter the Revised NCR"
Summary of Directive
Revisions to the NCR redefine removal and remedial actions to expedite
cleanup activities. This document addresses management issues that may
arise between the two programs in Headquarters and the Regions when
implementing the new program definitions.
Typo of Oirectiva iMinun. Policy Oirtctivt. Announctmant. etc.)
Policy Directive
Status
D Draft
Final
G New
LJ Revision
Does this Directive Supersede Previous Oireciivetsj? £*) Yes | J No Does it Supplement Previous Oirectivetsir" (_j Yes |) N
if "Yes" to Either Question. What Directive (number, titlel
_ j-^j ^ /- -r.^., \ «-,« ,.
Supercedes draft document (Same Title) 9360.6
Review Plan
D AA-OSWER
£3 OERR
G OSW
D OUST
0 OWPE
G Regions
G OECM
G OCC
Q OPPE
G
Otner ISptcity/
This Request Meets OSWER Directives System Format
Signature of Lead Office Directives Officer
Date
Signature of O5VVER Oirectivm/Officer
Date
EPA Form 1315.17(10-85)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR I 7 936
MEMORANDUM
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
SUBJECT:
FROM:
TO:
Relationship of the Removal and Remld' 1 Programs Under the
Revised NCP ~
Henry L. Longest II, Di rector ,
Office of ElII!rgency and Remed~ tesponse
Environmental Services Division Directors, Regions I, VI, and VII
Waste Management Division Directors, Regions I, IV, V, VI, VII and VIII
Emergency and Remedial Response Division Director, Region II
Hazardous Waste Management Division Director, Region III
Toxics and Waste Management Division Director, Region IX
Hazardous Waste Division Director, Region X
Attached is the final issue paper entitled "Relationship of the Removal
and Remedial Programs Under the Revised NCP". This paper has been revised
to reflect comments and suggestions submitted by the Regions during the
review of the draft paper. The comments also raised several additional
issues, which we will defer for incorporation into future procedural guidance.
Among these issues are program specific requirements for decision documenta-
tion, community relations activities, State involvement, public review and
NEPA compliance, deletion activities, enforcement, and contract execution.
As
issues,
of this
we make
I indicated in my previous memo on the topic, there are other policy
e.g., operation and maintenance, which we are examining as a result
change in removal criteria. We intend to involve the Regions as
decisions on all of these issues.
Attachment
cc:
J. Winston Porter, OSWER
Jack McGraw, OSWER
Gene Lucero, OWPE
Walt Kovalick, OERR
Russ Wyer, HSCD
Tim Fields, ERD
Steve Lingle, HRSD
Sherry Hawkins, ERD
Margie Russell, OSWER
Dan Berry, OGC
Pam John, PCMD
Jim Lounsbury, PAS
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OSWER DIR. #9360.0-6A
Relationship of the Removal and Remedial Programs Under
the Revised National Contingency Plan
PURPOSE:
Revisions to the National Contingency Plan (NCP) redefine the response
categories of IIremoval actionsll and IIremedial actionsll so that removals now
include all activities formerly considered immediate removals, planned removals,
and initial remedial measures (IRMs). While these changes in response categories
will expedite many cleanup activities by avoiding previous remedial requirements
for remedial investigations/feasibility studies (RI/FSs) and full cost effective-
ness analyses, this expanded definition of removal actions may raise questions
regarding the relationship between the two programs in both Headquarters and
the Regions. This memo addresses some of these questions and provides overall
information on the interface of the removal and remedial programs under the
new NCP.
BACKGROUND:
Earlier CERCLA program implementation tended to clearly differentiate
certain activities as removal or remedial, and those activities fell accord-
ingly into the removal or remedial program organizations. Subsequent
experience in CERCLA program implementation and new program directions being
implemented via the revised NCP indicate that a higher degree of program
integration and flexibility will enable us to stabilize or cleanup a greater
number of sites in a more expedited manner. In the case of cleanups, this
will allow us to delete more sites from the National Priorities List (NPL).
While this goal is seen as highly desirable, it creates some II gray II areas
with regard to managi ng act ions that were termed IIi nit i al remedi a1 measures, II
but that are now defined as removals. .
Despite the NCP changes, c~rtain types of response actions continue to
fall into discrete programmatic areas. In the view of OERR, the following
actions are still logically located in the removal and remedial programs,
respect i ve ly.
Removals are taken to abate or mitigate threats to public health, welfare,
or the environment and are generally surface cleanups. Actions considered
to be within the area of removal program responsibility are:
- all response actions at non-NPL sites and releases
- stabilization actions at NPL sites prior to initiating remedial
activities
classic emergencies arising at ongoing remedial actions that
require On-Scene Coordinator (OSC) expertise and fast-track
contractor activation .
- emergency provision of an alternate water supply
- complete cleanup of NPL sites, where consistent with remedial
program scheduling/activities, the public interest, and within
the purview of a defensible removal action.
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9360.06A
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Remedial actions are generally complete site cleanups that address
ground water impacts, where necessary. Actions within the area of remedial
program responsibility are:
- traditional, pre-planned remedial activities
removal actions determined to be necessary during the course of
a remedial action, within the expertise of the remedial project
manager (RPM), and for which sufficient time exists for competitive
contracting procedures.
Certain activities or phases of a response action, however,
may not lend themselves to classification into these specific program areas,
but rather require effective program integration and management flexibility
to implement successfully. Examples of these situations are:
- A massive drum removal at an NPL site resulting in nearly
complete site cleanup which creates a question of whether
the removal or remedial program should complete the cleanup.
A completed removal at an NPL site whic, raises the question of
whether the removal or remedial program should continue action
and perform the remedial investigation under the CERCLA l04(b)
authority to document that the removal action has cleaned up thf:?
site, in accordance with the NPL site deletion guidance and the
NCP. '
In situations such as these, there appears to be a need for a manage-
ment prerogative to assign program responsibility on acase-by-case basis.
A manager may determine that an IRM-type removal is necessary and that it
should be handled by the remedial program for the sake of continuity in an
on-going remedial action, or the manager may determine that the action should
be performed by the removal program to expedite a time-sensitive response
act i on.
DISCUSSION:
OERR supports the concept of organizational flexibility in this area so
that IRM-type removals or certain other removal activities may be undertaken
using either remedial or removal program resources. It seems reasonable to
deal with these programmatic overlaps on a case-by-case basis that allows
flexibility to 1) use appropriate program expertise, 2) use the most advan-
tageous contract mechanism, 3) use realistic time and urgency factors when
planning a response, and 4) assure consistency of removals with longer term
remedial actions. The implementation of this concept would be the responsi-
bility of Regional program managers who, when making actual response decisions,
need the flexibility to assign available and appropriate expertise (OSC or
RPM) and dollar resources to specific cleanup situations that may overlap
traditional definitions of removal and remedial.
Since the goal of the program is to clean up sites as quickly as
possible in the most cost effective manner, Fund expenditures must con-
tinue to be carefully controlled to assure expeditious cleanup or mitiga-
tion at reasonable cost to the public. Therefore, it is essential that
the most appropriate contracting mechanisms are used to assure maximum
return for expenditures.' The remedial construction program, through the
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9360.0-6A
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Corps of Engineers (COE) and the REM contracts, uses the invitation for
bid procedures to secure lump sum or fixed unit price contracts. The
removal program uses Emergency Response Cleanup Services (ERCS) contracts
to allow quick response on a pre-negotiated and pre-competed time and
materials basis. In additio~, the removal program may procure fixed
price contracts on a case-by-case basis, if necessary, and if time permits.
IRM-type response activities may lend themselves, depending upon the
circumstances, to any of these procurement mechanisms. The ERCS contract
system provides expedited and knowledgeable response capability. REM con-
tracts and COE contracts provide cleanup capability when time allows for
full competition. ERCS should generally be reserved for removal and,
IRM-type situations requiring rapid response such as drum removals or lagoon
drawdowns. Other IRM-type removals with 4-6 months lead time have probably
been identified in the FY 86 SCAP and could be pursued through REM or remedial
construction contracts. Thus, it may often be desirable to pursue fixed-price,
contracts to address certain removal actions where urgency is not a critical
factor. Where urgency is a factor, ERCS is the preferred contract mode. It
must be noteo, however, that a contracting warrant and appropriate training
is a prerequisite to an OSC or RPM using the ERCS contracts.
A test program is being developed by HSCD to facilitate removals at
NPL sites where remedial actions are underway and time exists for competi-
tive fixed price contracting. Removal actions taken under this pilot
program will be performed by remedial contractors to ensure continuity
with RI/FS activities and schedules as well as. consistency with the
final remedial alternative. The approach will entail the use of an
Engineering Evaluation/Cost Analysis (EE/CA) procedure, plans and specifi-
cations development, competitive bidding and construction management to
plan, design, and implement the project. Initial pilot cases will include
corrections to a landfill and provision of alternate water supplies.
Guidance for performing EE/CAs is under development.
Further, for certain IInon-urgentli removals, it may be desirable to
perform a limited cost analysis that is consistent with the Guidance
Document for Cleanup of Surface Tank and Drum Sites and draft gui~ance on
EE/CAs. Where time allows, such an analysis could help assure selection
of the best technical option at the best price. Such an analysis would
not be appropriate for an urgent removal situation.
Response personnel are also reminded that it is EPA policy to provide
potentially responsible parties (PRPs) the opportunity to perform the
response actions described in this memo pursuant to a CERCLA ~106 Adminis-
trative Order on consent. Where PRPs have been identified and do not take
appropriate or timely actions, EPA will issue a unilateral order where
appropriate. Where the decision is made to initiate a Fund-financed
action because of the exigencies of the situation, the Agency will also
pursue cost recovery for all costs incurred in conducting the removal
action. EPA will also pursue treble damages where PRPs fail to comply with
an administrative order without sufficient cause. More specifically, once
a site has been identified for removal action the Region must determine
the immediacy and s~riousness of the release situation.
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9360.0-6A
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At sites presenting an extremely urgent situation (e.g., delay of start-up
of on-site work cannot exceed one week following determination of the need
for a removal), the Region should make a reasonable effort to identify PRPs
and notify the parties verbally as to their potential liability followed by
a notice letter as soon as possible. The parties should also be given a
limited time to respond to the request for conducting the removal action.
In the event the negotiations are successful and PRPs agree to undertake the
removal action, the agreement should be embodied in an Administrative Order
under §106 of CERCLA. It is also EPA policy to proceed with a unilateral
administrative order if PRPs fail to respond appropriately to the request
provided necessary criteria are met. For non-urgent removals, procedures
for obtaining PRP response should be essentially the same as those for
remedial actions. Notice letters should be issued to PRPs, negotiations
should be scheduled quickly in order to secure private party cleanup
within an established timeframe consistent with the conditions presented
by the site. After negotiations, the procedures for issuing administra-
tive orders are the same as those described above.
CONCLUSIONS
Experience has demonstrated that all removals are not necessarily
urgent and that all remedial actions are not necessarily deferrable.
Having program flexibility to allow certain IRM-type measures to be per-
formed under the supervision of remedial staff and be deferred (because
of longer contracting procedures) or to have these actions performed by
removal staff on an expedited schedule, gives managers a means of real-
istic and justifiable scheduling of response actions. This flexibility
also allows for management continuity and accountability within programs,
and for the use of appropriate expertise.
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