CERCLA/SARA

        ENVIRONMENTAL  REVIEW MANUAL
                PTepared by:

                United  States
Environmental  Protection Agency -  Region 11
      Office of Policy and Management
        Environmental  Impacts Branch
              26 Federal Plaza
          New York, New York  10278
            With Assistance from:
                 Maguifc Group Inc.
                 Architect»/Engineer»;PUnner»
                 One Court Street
                 New Britain, Connecticut 06051
                JANUARY 1988

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INTRODUCTION
This Manual  is  intended  to assist remedial  project  managers (RPMs)
from the U.S.  Environmental  Protection Agency (EPA) -  Region  II in
ensuring that Comprehensive  Environmental  Response,  Compensation and
Liability Act of 1980/Superfund Amendments and Rea/ithorization Act  of
1986 (CERCLA/SARA) remedial  actions  are  functionally equivalent with
the National  Environmental  Policy Act  (NEPA),  and comply with  the
requirements  of  other environmental  statutes.   Specifically, this
Manual   discusses  compliance  requirements  of those  statutes that
address the following environmental resources:  wetlands/water bodies;
floodplains;  endangered  and threatened  species/  critical  habitats;
coastal zones; coastal barriers;  cultural  resources;  wild  and scenic
rivers; wilderness areas;  and  significant  agricultural  lands.   EPA's
NEPA compliance  staff is uniquely qualified to review  CERCLA/SARA
remedial actions  to  ensure  compliance with  these statutes.  Addi-
tionally, RPM's should also  consult  with other EPA program  offices,
federal agencies,  and state-agencies, as  necessary,  to ensure  that
CERCLA/SARA  remedial  actions comply  with  all  other  environmental
statutes that are not covered by this Manual.

     Chapter 1 discusses the concept of NEPA functional  equivalency as
     it applies to the CERCLA/SARA review process.  In  addition, it
     details  the  history and rationale  behind  ensuring CERCLA/SARA
     project  compliance  with other environmental  statutes,  and  pre-
     sents the reasoning behind involving the regional NEPA compliance
     staff in the CERCLA/SARA review process.

     Chapter 2 presents sections on all of the environmental resources
     listed above.  The respective sections  present the other environ-
     mental  statutes  (ARARs) that apply to  the  environmental  re-
     sources.  Additionally, these sections  present the review proced-
     ures that must be followed to ensure  compliance with  the respec-
     tive other environmental laws.

     Chapter  3  describes EPA's responsibilities  under   the  natural
     resource  damage  assessment provisions  of  CERCLA/SARA  and  the
     National Contingency Plan (NCP).  These requirements are mandated
     by  CERCLA/SARA  to ensure  that  risks and  damages   to  natural
     resources that would  result from a  release  of hazardous  sub-
     stances are adequately assessed and compensated.

     The Manual also includes several appendices that contain support-
     ing documentation for the Chapters.

This Manual  has  been bound  in  a  loose-leaf  binder  to  enable easy
revisions and updates as necessary.

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                           TABLE OF CONTENTS
                                                                 PAGE
INTRODUCTION                                                     i
TABLE OF CONTENTS                                                ii
LIST OF FIGURES                                                  v
LIST OF ACRONYMS                                                 vi

1.   Overview
     1.1  Functional Equivalence with NEPA                       1.1
     1.2  Compliance with Other Environmental Statutes           1.2
2.   Environmental Review Procedures
     2.1  Wetlands/Water Resources                               2.1.1
          2.1.1  Legislative/Regulatory Framework                2.1.1
          2.1.2  Environmental Review Procedures                 2.1.3
     2.2  Floodplains                                            2.'2.1
          2.2.1  Legislative/Regulatory Framework                2.2.1
          2.2.2  Environmental Review Procedures                 2.2.3
     2.3  Endangered Species                                     2.3.1
          2.3.1  Legislative/Regulatory Framework                2.3.1
          2.3.2  Environmental Review Procedures                 2.3.2
     2.4  Cultural Resources                                     2.4.1
          2.4.1  Legislative/Regulatory Framework                2.4.1
          2.4.2  Environmental Review Procedures                 2.4.3
     2.5  Wild and Scenic Rivers                                 2.5.1
          2.5.1  Legislative/Regulatory Framework                2.5.1
          2.5.2  Environmental Review Procedures                 2.5.2
                                  ii

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     2.6  Coastal  Zones                                           2.6.1
          2.6.1   Legislative/Regulatory Framework                2,6.1
          2.6.2   Environmental  Review Procedures                 2.6.2
     2.7  Coastal  Barriers                                       2.7.1
          2.7.1   Legislative/Regulatory Framework                2.7.1
          2.7.2   Environmental  Review Procedures                 2.7.1
     2.8  Wilderness Areas                                       2.8.1
          2.8.1   Legislative/Regulatory Framework                2.8.1
          2.8.2   Environmental  Review Procedures                 2.8.1
     2.9  Significant Agricultural Lands                         2.9.1
          2.9.1   Legislative/Regulatory Framework                2.9.1
          2.9.2   Environmental  Review Procedures                 2.9.3
3.   Natural Resource Trustee Coordination
     3.1  Introduction                                           3.1
     3.2  EPA Actions                                            3.2
     3.3  Trustee Actions                                        3.3
                              APPENDICES
APPENDIX A     SUPPORTING DOCUMENTATON
     A-l       Memorandum of Applicability of Section 102(2)  (c)  of
               the  National  Environmental  Policy Act of 1969  to
               Response Actions Under Section 104 of the Comprehensive
               Environmental Response,  Compensation and  Liability  Act
               of 1980, September 1, 1982
     A-2       Memorandum on  CERCLA Remedial  Actions and  NEPA/EIS
               Functional Equivalency, August 22, 1984
     A-3       Memorandum on Coordination Between Regional Superfund
               Staffs and OFA Regional Counterparts on CERCLA Actions,
               October 29, 1984
     A-4       CERCLA Environmental  Issues and Requirements - EIB/ERRD
               Coordination Procedure
     A-5       Memorandum on  CERCLA Compliance  with  Other Environ-
               mental Statutes, October 2, 1985
                                  iii

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APPENDIX B     ENDANGERED SPECIES INFORMATION
     B-l       List of Federally Listed and Proposed Endangered and
               Threatened Species
     B-2       List of Critical Habitats
     B-3       Guidelines for Conducting a Biological Assessment

APPENDIX C     LIST OF WILD AND SCENIC RIVERS
APPENDIX D     LIST OF COASTAL BARRIERS
APPENDIX E     LIST OF WILDERNESS AREAS
APPENDIX F     SIGNIFICANT AGRICULTURAL LANDS INFORMATION
     F-l       Significant Agricultural Lands as Defined by EPA Policy
     F-2       Farmland Conversion Impact Rating Form (AD 1006)
APPENDIX G     NATURAL RESOURCE TRUSTEE INFORMATION
     G-l       Natural Resource Trustee Notification Form
     G-2       MOU Between EPA And DOI - Preliminary Natural Resource
               Surveys
APPENDIX H     CONTACTS
                                  iv

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            LIST OF  FIGURES
Figure #
1-1
2-1
2-2
2-3
2-4
2-5
2-6
2-7
2-8
2-9
2-10
2-11
2-12
Title Following Page
CERCLA/SARA and NEPA Processes
Wetland Cross Section
Procedures for Wetlands/Water Resources
Review Under CERCLA/SARA
Floodplain Cross-Section
Procedures for Floodplain Review
Under CERCLA/SARA
Sample Floodplain Delineation (FEMA Map)
Procedures for Endangered Species
Review. Under CERCLA/SARA
Procedures for Cultural Resources
Review Under CERCLA/SARA
Procedures for Wild and Scenic Rivers
Review Under CERCLA/SARA
Procedures for Coastal Zone Review
Under CERCLA/SARA
Procedures for Coastal Barrier Review
Under CERCLA/SARA
Procedures for Wilderness Area Review
Under CERCLA/SARA
Procedures for Significant Agricultural
1.2
2.1.1
2.1.3
2.2.1
2.2.3
2.2.4
2.3.2
2.4.3
2.5.2
2.6.2
2.7.1
2.8.1
2.9.3
Lands Review Under CERCLA/SARA

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                           LIST OF ACRONYMS
ACHP      Advisory Council on Historic Preservation
AHPA      Archaeological and Historic Preservation Act of 1974
ARAR      Applicable or Relevant and Appropriate Requirement
ARPA      Archaeological Resources Protection Act of 1979
BA        Biological Assessment
BO        Biological Opinion
CBRA      Coastal Barrier Resource Act of 1982
CE        Categorical Exclusion
CEQ       Council on Environmental Quality
CERCLA    Comprehensive Environmental Response, Compensation and
           Liability Act of 1980
CFR       Code of Federal Regulations
COE       U.S. Army Corps of Engineers
CRS       Cultural Resource Survey
CWA       Clean Water Act
CZMA      Coastal Zone Management Act of 1972
DEIS      Draft Environmental Impact Statement
DOC       Department of Commerce
DOI       Department of the Interior
EA        Environmental Assessment
EIB       Environmental Impacts Branch
EIS       Environmental Impact Statement
EPA       Environmental Protection Agency
EPIC      Environmental Photo Interpretation Center
ERRD      Emergency and Remedial Response Division
ESA       Endangered Species Act of 1973
FDPA      Flood Disaster Protection Act of 1973
FEIS      Final Environmental Impact Statement
FEMA      Federal Emergency Management Agency
FNSI      Finding of No, Significant Impact
FPPA      Farmland Protection Policy Act of 1981
FS        Forest Service
FWCA      Fish and Wildlife Coordination Act of 1958
FKS       Fish and Wildlife Service
HRS       Hazard Ranking System
HSA       Historic Sites Act of 1935
IRL       Interagency Review Letter
MOA       Memorandum of Agreement
MOU       Memorandum of Understanding
NCP       National Contingency Plan
NEPA      National Environmental Policy Act
MFIA      National Flood Insurance Act of 1968
MHPA      National Historic Preservation Act of 1966
NMFS      National Marine Fisheries Service
NOAA      National Oceanic and Atmospheric Administration
NPL       National Priorities List
NPS       National Park Service
NRDA      Natural Resource Damage Assessment
NRHP      National Register of Historic Places
NWI       National Wetlands Inventory

                                  vi

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                      LIST OF ACRONYMS (Cont'd.)

OEA       Office of External Affairs
OFA       Office of Federal Activities
0PM       Office of Policy and Management
OSWER     Office of Solid Waste and Emergency Response
PA        Preliminary Assessment
RCRA      Resource Conservation and Recovery Act of 1976
RD/RA     Remedial Design/Remedial Action
RI/FS     Remedial Investigation/Feasibility Study
ROD       Record of Decision
RPM       Remedial Project Manager
SARA      Superfund Amendments and Reauthorization Act of 1986
SCS       Soil Conservation Service
SHPO      State Historic Preservation Officer
SSCD      State Soil Conservation District
USC       United States Code
USDA      U.S. Department of Agriculture
WA        Wilderness Act
WRC       Water Resources Council
WSRA      Wild and Scenic Rivers Act
                                  vii

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OVERVIEW

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1.1  Functional  Equivalence with NEPA

     The National  Environmental  Policy Act of 1969 (NEPA) (42 USC 4321
     et seq) requires federal agencies  to evaluate the environmental
     impacts associated with major  actions that they fund,  support,
     permit, or implement.  Generally, this is  accomplished  by build-
     ing into the  decision-making  process  appropriate and  careful
     consideration  of the  environmental  impacts of proposed actions
     and measures to avoid and  minimize  potential  adverse  effects of
     the actions.  Specifically,  NEPA requires federal  agencies to
     consider five (5) issues during  the planning of major  actions:
     1) the  environmental  impact of  the proposed action;   2)  any
     adverse impacts which cannot be avoided with  the proposed imple-
     mentation;   3)  alternatives  to  the proposed action;   4)  the
     relationship between short-  and  long-term effects; and  5)  any
     irreversible and  irretrievable commitments of  resources  which
     would be involved in a proposed action.   Further,  Section 102(2)
     (c) of NEPA requires federal  agencies to prepare an environmental
     impact statement (EIS) for major actions "significantly affecting
     the quality of the human environment".

     Implementing regulations for NEPA have been developed and issued
     by the Council  on Environmental Quality (CEQ), which oversees the
     NEPA process for the Executive Branch.  These regulations (i.e.,
     40 CFR Part 1500 - 1508) set forth  the general  requirements that
     federal agencies must follow to ensure compliance  with  NEPA.   In
     addition to providing  the  regulatory basis  and  procedural  re-
     quirements  for the preparation of EISs,  these regulations  also
     provide for the  preparation  of Findings  of  No  Significant  Im-
     pacts/Environmental   Assessments  (FNSI/EAs)   and   Categorical
     Exclusions  (CEs) for  categories  of actions that will not cause
     environmental  impacts.  Under  the CEQ's  NEPA regulations,  all
     federal agencies are required to determine which of their activi-
     ties are major actions subject to NEPA, and to  develop  their own
     regulations for  implementing NEPA.   EPA's NEPA implementation
     regulations are presented in 40 CFR Part 6.

     Functional  equivalency is a term which was coined by the District
     of Columbia Circuit Court  concerning  EPA's role under NEPA.  In
     general, the Court held that EPA is exempt from preparing  NEPA
     documents (i.e., EISs and  FNSI/EAs) for regulatory actions  where
     the Agency's work product  constitutes the functional  equivalent
     of a NEPA review (e.g., RCRA permits).  Although the  Courts have
     applied the concept of functional equivalence only to regulatory
     actions, the  EPA's  Office of  General Counsel  has issued  an
     opinion that extends  the  functional  equivalency concept to  site
     specific non-regulatory actions as well (see  Appendix A-l),  such
     as remedial actions under CERCLA/SARA.
                                  1.1

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     In the case of CERCLA/SARA remedial actions, a comparison of the
     remedial  investigation/feasibility study  (RI/FS)  process  to the
     NEPA review process (see Figure  1-1)  highlights  the broad simi-
     larities  in both processes  that lends support to the extension  of
     the NEPA  functional  equivalence  concept to  the CERCLA/SARA
     program.   Generally, the RI/FS process produces  a document that
     is very similar to a NF.PA EIS or expanded FNSI/EA.   It should be
     noted, however, that the processes are not  identical.   Moreover
     only through compliance with  the  requirements  of other environ-
     mental statutes can CERCLA/SARA remedial  actions be considered  to
     be in full compliance  with  NEPA.

1.2  Compliance with Other  Environmental Statutes

     As indicated in Section  1.1  above, there are a series of other
     environmental  statutes (e.g., the  National  Historic  Preservation
     Act, the  Endangered Species Act,  the Coastal Zone Management Act,
     the Executive  Orders on Floodplains and Wetlands, etc.; that must
     be complied with to ensure that CERCLA/SARA remedial actions are
     functionally equivalent with NEPA.  Each of these other environ-
     mental statutes has unique  review procedures established that are
     independent of NEPA.   Accordingly, although compliance with these
     statutes   comprises  an important  subset  of the  NEPA process,
     compliance with them is mandatory  for all  projects, independent
     of the NEPA process.

     In 1984,  EPA's  Office  of External Affairs  (OEA)  and Office of
     Solid Waste and Emergency Response (OSWER)  recognized the need to
     address compliance with other  environmental statutes during the
     process of planning CERCLA/SARA  remedial  actions.   These  offices
     further recognized the  expertise that regional NEPA compliance
     staffs have in  meeting  the compliance requirements.  Therefore,
     OEA and OSWER issued joint guidance memoranda on August 22, 1984,
     and October 29, 1984, recommending the  establishment  of close
     coordination between  regional  CERCLA/SARA  and  NEPA compliance
     staff  to  ensure full  compliance  of  remedial  actions with  the
     requirements of other environmental statutes (see Appendices A-2
     and A-3,  respectively).

     Building on these  guidance memoranda, EPA Region II's Emergency
     and Remedial Response  Division (ERRD) and  Office of Policy and
     Management (0PM) established procedures  for coordination  between
     ERRD  and  the  Environmental  Impacts Branch  (EIB)  to  ensure  that
     CERCLA/SARA remedial  actions  comply with  the  environmental
     statutes.  Under  these  procedures, dated April  10, 1985,  (see
     Appendix A-4),  EIB reviews all proposed remedial actions  (both
     remedial  and enforcement lead), and recommends to the RPMs  appro-
     priate actions  to ensure compliance.  These  procedures, which
     were  fully implemented in FY-86, represent  a significant positive
     effort taken  by this  regional office to  establish a  formal
     working  relationship  between  CERCLA/SARA and NEPA  compliance
     staffs"
                                  1.2

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                           CERCLA / SARA AND NEPA PROCESSES
                                         FIGURE 1-1
r.FRCLA / SARA PROCESS
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                                                                                    HASUIRE SHOUP IMC,

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Additionally, EPA's OSWER  recognized  the need to issue  further
guidance on  ensuring  that  CERCLA/SARA projects comply with  the
environmental statutes, and issued a  policy  statement addressing
this need on October  2, 1985 (see Appendix  A-5).   This  policy
statement, which was  included in the  November  20, 1985 revisions
to the  National  Contingency Plan (NCP), identifies  potentially
applicable or relevant and appropriate requirements  (ARARs)  with
which CERCLA/SARA actions must comply.

Further, Section  121  of SARA reinforces and  expands the OSWER
policy  statement  by  mandating  that  CERCLA/SARA  actions must
comply  with  federal,  state,  and  local  ARARs.   Under  SARA,
therefore, ARARs  include  those  laws, regulations, and policies
that address the following environmental resources:

.  wetlands/water resources;

.  floodplains;

.  endangered and threatened species/critical  habitats;

.  coastal zones;

.  cultural  resources;

.  wild and  scenic rivers;

.  coastal barriers;

.  wilderness areas;  and

.  significant agricultural lands.

The  environmental  review  procedures  discussed in Chapter  2  are
keyed  to  the four (4)  principal  activities  of the  CERCLA/SARA
remedial action process:

     the  Interagency  Review Letter  (IRL),  formerly  known as the
     A95  clearinghouse letter,  is  the  scoping  phase of  the
    • process;

     the  Remedial  Investigation/Feasibility  Study (RI/FS)  is the
     analysis phase of the  process;

     the  Record of Decision (ROD)  is the decision phase of  the
     process; and

     the   Remedial Design/Remedial Action   (RD/RA)   is  the
     imp1ementation phase  of the process.

The  text  and flow charts  in Chapter  2  indicate  in  which  phase
certain environmental  review procedures  are  carried  out.
                              1.3

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Although  responsibility for  final  decisions  on  CERCLA/SARA
remedial activities is not delegable, some remedial activities in
EPA Region II are  directed  by  state  agencies and carried out by
responsible parties.   Further,  EPA  views delegation of  certain
environmental  review functions as both feasible  and desirable  in
some circumstances, but is  bound to  retain  responsibility for
final  decisions  regarding  the  impacts  of  remedial actions.
Accordingly, this  Manual  should be used as  a guide  to  state
agencies  and responsible  parties as well as  EPA's RPMs  during
their respective CERCLA/SARA remedial  activities.
                             1.4

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ENVIRONMENTAL REVIEW
     PROCEDURES

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  2.1 WETLANDS /
WATER RESOURCES

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2.1  WETLANDS/WATER RESOURCES

     Wetlands are defined by  Executive  Order 11990 on Protection of
     Wetlands, Section  7(c)  as "those  areas  that are inundated by
     surface or ground  water  with  a frequency sufficient to support
     and under normal circumstances does or would support a prevalence
     of vegetative or aquatic life that requires  saturated or season-
     ally saturated  soil  condition? for  growth and  reproduction".
     Wetlands include swamps, marshes,  bogs, and similar areas  such as
     sloughs, prairie  potholes,  wet meadows,  river overflows, mud
     flats,  natural ponds, and mangrove swamps.  Figure 2-1 is  a cross
     section diagram of a wetland.

2.1.1     Legislative/Regulatory Framework (Potential ARARs)

          National policy considers  wetlands to be unique and  vital
          natural resources  of  critical importance;  the  unnecessary
          destruction or alteration  of  wetlands should be discouraged
          as contrary to the  public  interest.  The  Federal Government
          has promulgated  laws,  executive  orders,  regulations and
          guidelines to minimize destruction of or  adverse impacts to
          the nation's  wetlands and  water resources.   Those statutes
          which are relevant to wetlands/water resource protection and
          to the intent of this Manual  are summarized as follows:

               Fish and Wildlife Coordination  Act of 1958 (FWCA)  (16
               USC 661)

               The FWCA requires  federal  agencies  to give wildlife
               conservation equal  consideration with other  features
               during planning and decision-making  processes that may
               impact  water  bodies  (including wetlands).   If  the
               project  will  impact water resources  under FWCA, the
               agency must consult with appropriate state and  federal
               wildlife  agencies  to determine  necessary mitigative
               measures.

               Clean Water Act of 1972  (CWA), as amended  (33 USC 466)

               Section  404 of the  CWA  established a national program
               to control the discharge of  dredged or fill materials
               into  waters  of the  United States.   "Waters  of the
               United  States"  include  all  tributaries  of navigable
               waters  up  to  their headwaters  and landward to  their
               ordinary high water mark and all tidal waters up to the
               high  tide  line, thus  including wetlands.   The section
               established a  permit  program that is  administered  by
               the U.S. Army  Corps of Engineers  (COE) and overseen by
               EPA for  the placement of dredged and fill material  into
               these waters.
                                 5?.1.1

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UPLAND PALUSTRINE  UPLAND
                              PALUSTRINE
UPLAND
    	»•
PALUSTRINE
UPLAND
  Seepage Zone
WETLANDS CROSS-SECTION
                                    a TEMPORARILY FLOODED    (hj,
                                    b SEASONALLY FLOODED
                                    c SEMIPERMANENTLY FLOODED
                                    d INTERMITTENTLY EXPOSED
                                    e PERMANENTLY FLOODED
                                    f SATURATED
                                                                                      HIGH WATER
                                                                                  AVERAGE WATER
                                                                                      LOW WATER
SOURCE: FWS. 1979. CLASSIFICATION OF WETLANDS AND DEEPWATER HABITAT OF THE US
                                                                                     FIGURE 2-1

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COE - Regulatory Programs of the Corps of Engineers (33
CFR 320-330)

These regulations describe the  policies  and  procedures
related to  applications  for COE permits  for various
activities altering waters of  the  United States.   The
regulations also expand the CWA definition of waters of
the United States to specifically include wetlands.

EPA - Guidelines for  Specifications  of Disposal  Sites
for Dredged or Fill  Material  (40 CFR 280)

These guidelines  establish procedures  for  reviewing
applications for permits  for the  placement  of dredged
or fill materials  in waters of the  United  States,
including wetlands.   They emphasize  restoration  and
maintenance of the chemical, physical,  and  biological
integrity of these waters in accordance with the CWA.

EPA - Administrator's Statement Number 4 - February 23.
1973

This decision statement outlines the values  of wetlands
and states  that  it  is EPA's policy to give  special
attention to any proposal that may damage wetlands  and
to protect wetlands to the maximum extent practicable
from adverse dredging and filling  practices and non-
point source pollution.

Executive Order 11990 - "Protection of Wetlands" -  May
24. 1977	

Executive Order 11990 directs federal agencies to  take
actions to minimize the destruction,  loss, or  degrada-
tion of wetlands and to  preserve  and  enhance the
natural and beneficial values  of wetlands in carrying
out the agencies' responsibilities.   In addition,  this
Executive Order  requires the  agencies  to  consider
factors relevant to  a proposal's effect on the survival
and quality of the wetlands.

EPA - Statement of Procedures on Floodplain  Management
and Wetlands Protection  - January 5. 1979

Based primarily on Executive Orders 11988 and 11990,
these procedures state EPA's  policy of avoiding impacts
to wetlands  in  all  EPA  programs.   The  procedures
                  2.1.2

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               require  the determination of whether  or not the pro-
               posed remedy will be in  or will  affect wetlands.  If
               so,  a wetlands assessment must be  prepared.   Refer  to
               Chapter  2.2 for  discussion  of application  to  flood-
               plains.

               COE  - Regulatory Guidance Letter on Superfund Projects
               - July 5,  1955

               This letter was  issued  in  response to EPA's position
               that CERCLA  actions  need  not  obtain  permits  under
               Section  404 of the Clean Water Act  or Section 10 of  the
               Rivers and  Harbors Act.   Specifically, the  letter
               directs  appropriate COE personnel not to require permit
               applications for actions proposed  under the authority
               of CERCLA.

               EPA - Statement  of Policy  on  Floodplains and Wetlands
               Assessments for CERCLA Actions -  August 5,  1985

               This policy states that  if it has  been  determined that
               the proposed remedy will be in or will affect wetlands,
               a wetlands assessment must be  prepared.   This assess-
               ment must be  incorporated  into the analysis conducted
               during the planning of  remedial actions under the NCP
               and CERCLA and should  be included  in the feasibility
               study.

2.1.2     Environmental Review Procedures

          Figure 2-2 outlines the environmental review  procedures  for
          wetlands and  water resources as they apply to CERCLA/SARA.

          IRL:      During the scoping of remedial actions, EPA should
                    identify  any wetlands/water  resources  in  the
                    project area that  may be  potentially affected  by
                    contamination at  the site  or by  the  remedial
                    action.

                    Although in-field analysis is the  best  method  for
                    identifying wetlands/water resources,  such  analy-
                    sis may be  considered too detailed  for  this  phase
                    of a remedial action.  Accordingly, other  readily
                    available sources  may be used.   A recommended
                    source is the  National  Wetlands  Inventory  (NWI)
                    maps  developed  by  the  U.S.   Fish  and  Wildlife
                    Service (FWS).  These maps,  prepared by interpret-
                    ing aerial  photographs, are generally  transparent
                    overlays to the U.S.  Geologic Survey's  7.5  minute
                    quad sheets.  They  are  available from the appro-
                    priate FWS office.  Additional sources for identi-
                    fying wetlands/water  resources  during  this phase
                    of the project include:   COE  reports, Soil Surveys
                    prepared by the  Soil  Conservation Service (SCS),


                                 2.1.3

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                         PROCEDURES FOR
    WETLANDS/WATER RESOURCES  REVIEW UNDER CERCLA/SARA
CERCLA/SARA                   FIGURE 2-2
PROJECT PHASE
   IRL
   RI/FS
                  DETERMINE IF PROPOSED
                  ACTION IS  IN AFFECTING
                WETLANDS/WATER RESOURCES
            DELINEATE WETLANDS/WATER RESOURCES
   IDENTIFY IMPACTS OF PROPOSED ACTION,
    CONDUCT WETLANDS/WATER  RESOURCES
ASSESSMENT AND  IMPLEMENT FW CONSULTATION
            PUBLIC NOTICE AND REVIEW
   ROD
   RD/RA
DEVELOPMENT/IMPLEMENTATION
       OF MITIGATION
       NO FURTHER
WETLANDS/WATER RESOURCES
     REVIEW REQUIRED
  NJTE»

  REFER TO TEXT FOR MORE DETAILS
                                                            NMVIRC IROUP INC.

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          Environmental  Photo Interpretation  Center  (EPIC)
          documentation, state  wetland  maps, and  local
          sources (see Appendix  H).

          If  no  wetlands/water  resources  exist  in  the
          project area,  the  RI/FS  may  proceed without
          further consideration  of the procedures set forth
          Oelow.

RI/FS:     If wetlands/water resources exist in  the  project
          area, the impacts of the contamination and poten-
          tial remedial  actions  on  these  areas must  be
          assessed in the RI/FS.  The RI/FS workplan should
          provide for completion of  all  required wetlands/
          water resources assessment work during the prepa-
          ration of the RI/FS.

          The  first  part of  a   wetlands/water  resources
          assessment is the accurate delineation of any such
          areas that could be affected by the contamination
          or remedial actions.  As stated above, the deline-
          ation must  be based on in-field  analysis.   The
          recommended method for delineating these resources
          is detailed in EPA's Wetlands  Identification and
          Delineation Manual (April  19, 1987 interim final).

          When the wetlands/water resources  are accurately
          delineated, the  detailed  assessment  work  can
          proceed.  The wetlands/water resources assessment
          includes the following:

               a description of the proposed action;

               a description of the wetlands/water resources
               functions at and in the vicinity of the site;

               a description of the effects of  the proposed
               action  on  the wetlands/water  resources
               functions;

               a description of  the  alternatives considered
               and their effects on wetlands/water resources
               functions; and

               a delineation of measures to minimize poten-
               tial  harm to wetlands/water  resources  func-
               tions.

          Clearly, the  best method  for avoiding impacts of
          remedial actions on wetlands/water resources is  to
          avoid  these  features  where  selecting remedies.
          However, this is not always  possible  and  in some
          cases  (e.g.,  when wetlands/water  resources  are
          contaminated) may be unavoidable.   There are a
                        1.1.4

-------
variety  of measures  to  mitigate  unavoidable
adverse wetland/ water  resources  impacts.   These
measures include but are not limited to:

     enforcing seasonal restrictions on  construc-
     tion activities as practicable;

     restoring surface  and subsurface flow  pat-
     terns;

     using  proper  erosion  and  sedimentation
     control;

     minimizing easement widths;

     prohibiting  dumping   in  wetlands/water re-
     sources;

     limiting size of construction equipment;

     ensuring  appropriate treatment  levels for
     effluent discharges to wetlands/water bodies;

     prohibiting  the  use   of  chemicals  for dust
     control;

     minimizing exposure of acid  soils;

     restoring  the  disturbed area  so  as to re-
     create the area's wetlands functions; and

     replacing disturbed  wetland  areas  with newly
     created wetlands.

 It  should be  noted that  mitigative measures,
 particularly  wetland restoration,  can  be  very
 costly  remedial action alternatives.  Accordingly,
 when possible,  those  alternatives that  result  in
 the  least impacts  to wetlands/water  resources
 should  be  favored if all  other  factors are equal.

 Fish and Wildlife Coordination

 In accordance with  the  FWCA,  the  appropriate state
 and  federal  wildlife agencies  (see Appendix H)
 must be consulted if wetlands/water  resources will
 be  impacted  by  a  CERCLA/SARA  project.   These
              2.1.5

-------
          agencies will  be helpful  in developing out-of-wet-
          land alternatives or recommending  proper  mitiga-
          tion.   Specifically, the  FWCA requires the respon-
          sible  official to coordinate with the appropriate
          state  and federal wildlife agencies,  whenever a
          project impounds, diverts  or otherwise modifies
          wetlands or  water  resources.   Results  of  the
          coordination,  including all  mitigation  measures,
          must be documented  i.,  writing.   This  information
          will,  in turn, be incorporated into the wetlands/
          water  resources  assessment, which will be  included
          in the RI/FS.

ROD:      The ROD should include a summary of EPA's activi-
          ties to  ensure  that impacts to wetlands/water
          resources are properly addressed and mitigated.

RD/RA:    Unavoidable impacts  to wetlands/water  resources
          must be mitigated during the implementation phase
          of the CERCLA/SARA remedial action.
                       2.1.6

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                             REGION VIII
                      999 1 8th STREET - SUITE 500
                   DENVER, COLORADO  80202-2405

JUNO 7 1988
 Ref:  SRC

 MEMORANDUM

 TO:       Joni Teter
           Assistant Regional Counsel

                            ,
 FROM:     Marion Yoder  )  >    }
           Assistant Regional Counsel

           Brad Miller, 8WM-SP
           Water Management Division

 SUBJECT:  Substantive Requirements of CWA §404


      The following is a distillation of the substantive
 requirements of the Section 404(b)(1) Guidelines, 40 C.F.R. Part
 230.10, et. seq.  These guidelines were developed by EPA in
 conjunction with the Corps of Engineers for the specification of
 disposal sites for discharges of dredged or fill material into
 waters of the United States.  These include all navigable waters,
 territorial seas, lakes, streams, intermittent streams, wet
 meadows, weltands, mudflats, sloughs, prairie potholes or other
 waters whose. use could affect interstate commerce.

 Section 404(b)(l) Requirements

 NOTE:     Questions 1 through 4 must be answered in the negative
           before a determination of compliance with the 404(b)(!)
           Guidelines can be made.

 1 .   Is there a practicable alternative to the proposed discharge
      which would have less adverse impact to the aquatic
      environment which could also not have other significant
      adverse environmental consequences.  (40 C.F.R. Part
      230.10(a) ).

                                      Yes        No
      This section defines the term "practicable" in terms of its
      availability, cost, technology, and logistics in light of
      overall project purpose.  An area not presently owned which
      could reasonably be obtained to fulfill the basic purpose of
      the proposed discharge may, and should, be considered.

-------
     Upland alternatives are presumed to be available and to have
     less impact on the aquatic ecosystem.  The initial and most
     difficult hurdle for any applicant is overcoming the upland
     alternative presumption.


2.   Does the discharge of dredged or fill material cause or
     contribute to violations of any applicable state water
     quality standard or toxic effluent prohibition?  (40 C.F.R.
     Part 230.10(b)(1)).

                                     Yes        No
     In addition to water quality standards within the given
     state where the impacts are occurring, EPA may be required
     to make a determination concerning violations of applicable
     water quality standards for interstate impacts in downstream
     states.  This determination may be based, in part, on the
     opinions of downstream states regarding compliance with
     their applicable water quality standards.

3.   Does the discharge jeopardize the continued existence of.
     species listed as threatened or endangered?  (40 C.F.R. Part
     230.10(b)(3».

                                     Yes        No
     Will the discharge result in the destruction or adverse
     modification of critical habitat?

                                     Yes        No
     EPA generally relies on the opinion of the U.S. Fish and
     Wildlife Service and the state fish and game agency here.
     Other individuals or groups and organizations may also
     submit useful and appropriate information which may be used.
     to supplement that of the federal and state agencies.

 4.  Does the discharge contribute to significant degradation of
     the waters of the United States?  Human health and welfare,
     aquatic and wildlife ecosystems and recreational, aesthetic
     and economic values are considered here.

                                     Yes        No
     Findings of significant degradation are based on the
     evaluations which are "listed in Subparts B and G after
     consideration of Subparts C-F."  These evaluations include
     determination of physical substrate, water circulation,
     fluctuation of water levels, salinity determinations,
     suspended particulates, contaminants, aquatic ecosystems,

-------
NOTE:
5.
disposal sites, cumulative effects, and secondary effects as
well as evaluation of the dredged or fill material and its
chemical, biological, and physical characteristics.

     Question 5 must be answered in the affirmative before a
     determination of compliance with the 404(b)(l)
     Guidelines can be made.

Have all appropriate and practicable steps been taken which
will minimize potential adverse impacts of the discharge on
the aquatic ecosystem?  (40 C.F.R. 230.10(d).
                                     Yes
                                           No
     As discussed in part 1, above, alternatives which result in
     minimization of the adverse impacts to the aquatic ecosystem
     must be considered and, unless otherwise more damaging,
     chosen.  If no alternative is practicable which avoids
     impacts to the aquatic ecosystem, alternatives which
     minimize such impacts must be chosen.  Compensatory
     mitigation is then required to compensate for unavoidable
     adverse impacts.  For wetland impacts, compensatory
     mitigation often includes restoration of previously damaged
     wetlands or creation of replacement wetlands which will
     replace the wetland functions to be lost due to the project.
     In-kind mitigation measures are generally required as they
     provide better replacement of lost wetland functions.
     An EPA "formula" for mitigation has been devised, which
     calls for replacement"of wetlands on the following bases:
     hydrologic restoration
     creation
     vegetative restoration
     additional mitigation measures
                                     1 acre for 1 acre
                                     2 acres for 1 acre
                                     3 acres for 1 acre
                                     evaluated case by case
     Frequently, applicants wish to replace lost wetlands with
existing wetlands.  This abrogates the idea we promote of "no net
loss" and thus is generally insufficient.

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2.2 FLOOOPLAINS

-------
2.2  FLOODPLAINS

     Floodplains are defined by  Executive  Order 11988 on  Floodplain
     Management, Section 6(c)  as  "lowland  and relatively flat areas
     adjoining inland and coastal waters including floodprone areas of
     offshore islands  ..."  (see Figure  2-3).   These resources are
     categorized as  100  year floodplains (areas  subject  to a 1.0%
     chance of flooding  in  any given year)  and 500 year  floodplains
      areas subject to a 0.2%  chance  of  flooding  in  any given year).
         CERCLA/SARA actions  require consideration of the  500  y
    •floodplain.                                                    JT
2.2.1     Legislative/Regulatory Framework (Potential ARARs)

          National policy  recognizes  the need  to minimize adverse
          economic impacts  to the public caused  by flooding.  The
          federal government  has  promulgated  laws,  executive  orders,
          regulations and guidelines  to  reduce  these impacts.  Those
          statutes which are  relevant to floodplain management and to
          the intent of this Manual are summarized as follows:

               National Flood Insurance  Act of 1968  (NFIA)  (42  USC.
               The  NFIA authorized  the National  Flood  Insurance
               Program.  This  is  a federally  subsidized  program to
               protect  property owners  who previously  had  not been
               able to  obtain  coverage  through the private insurance
               industry.  In return  for the federal subsidy,  states
               and  local  governments must  adopt  minimum management
               strategies to avoid future  flood damage within  their
               floodplain areas.

               Flood Disaster  Protection Act  of 1973 (FDPA)  (42  USC
               4401)

               The NFIA was amended in 1973 by the FDPA, which expand-
               ed the available limits of flood insurance coverage and
               imposed  additional  requirements on  property  owners and
               communities.  The  FDPA required the purchase of flood
               insurance on or after March  2,  1974,  as  a  condition  of
               receiving  any  federal  assistance  for  projects  in
               special  flood hazard areas located within any community
               in which the  sale  of flood  insurance has been author-
               ized under  the  program.   In other  words,  no federal
               financial  assistance can  be  legally approved  for
               projects  located in floodplains if the community is not
               participating in the flood insurance  program.
                                 2.2.1

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                                        100 YEAR FLOOD PLAIN
                       FLOODWAY
                        FRINGE
FLOODWAY
                     FLDOD ELEVATION WHEN
                     CONFINED WITHIN FLOODWAY
                                                    STREAM
                                                   CHANNEL
FLOODWAY
                        FRINGE
            AREA OF FLOOD PLAIN THAT COULD
            BE USED FOR DEVELOPMENT BY
            RAISING GROUND
                 FLOOD ELEVATION
                 BEFORE ENCROACHMENT
                 ON FLOOD PLAIN
                          LINE A-B IS THE FLOOD ELEVATION BEFORE ENCROACHMENT
                          UNEC-D IS THE FLOOD ELEVATION AFTER ENCROACHMENT
     » SURCHARGE NOT TO EXCEED I.OFOOT(FEMA REQUIREMENT) OR LESSER AMOUNT IF SPECIFIED BY STATE.


FLOODPLAIN CROSS-SECTION
SOURCE: FEMA FLOOD INSURANCE STUDIES
                                        FIGURE 2-3

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Executive Order 11988  -  "Floodplain  Management"  - May
24, 1977

Executive Order 11988 directs federal agencies to avoid
long- and short-term  adverse impacts associated  with
the occupancy  and modification  of floodplains.    In
addition, the executive order requires the avoidance of
direct and indirect support  of  floodplain development
wherever there are practicable  i"iernatives.  Agencies
responsible  for  providing  federal  assistance   for  .
construction  and  improvements  and  for  conducting
programs affecting land use should take actions:

     to reduce risk of flood loss;

     to minimize the impacts of floods on human  safety,
     health, and welfare; and

     to restore and preserve the natural and beneficial
     values served by floodplains.

Water Resources Council  (WRC) - Floodplain Management
Guidelines - February 10, 19/8

These guidelines, issued to aid other federal agencies
in amending their regulations and  procedures  to  comply
with Executive Order 11988,  outline  an  eight (8) step
decision-making process required by section 2(a)  of the
Executive Order 11988.  The steps are:

1.   determine if the  proposed  action is in  the  base
     floodplain (500 year  floodplain for  CERCLA/SARA
     projects);

2.   conduct early public review;

3.   identify and evaluate alternatives  to  locating  in
     the base floodplain;

4.   identify impacts of the proposed action;

5.   minimize, restore and preserve;

6.   reevaluate alternatives;

7.   present findings and public explanation; and

8.   implement action.

This process  relies  heavily on public  review of the
proposed action and all alternatives.
                  2.2.2

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               The guidelines hold that certain  projects  or portions
               may be designated  as  a  critical  action, which is any
               activity for which  even a  slight chance of flooding
               would be too great.   In the  case  of critical actions,
               the area requiring  consideration  is  expanded from the
               100 year to the  500 year floodpl?ir.   All  CERCLA/SARA
               actions are to  be  considered  critical  actions and,
               therefore,  the 500 year floodjjlain is considered.

               EPA - Statement of  Procedures on  Floodplain  Management
               and Wetlands Protection - January 5, 1979

               In addition to  requiring  the preparation of  wetlands
               assessments (as  indicated  in  Section  2.1.1), these
               procedures  also  mandate  the  preparation of  a flood-
               plains assessment when appropriate.

               EPA - Statement  of  Policy  on Floodplains  and Wetlands
               Assessments for CERCLA Actions - August 5,  19185

               In addition to  requiring  the preparation of  wetlands
               assessments (as  indicated in  Section  2.1.1),  this
               policy also mandates  the  preparation  of floodplains
               assessments as appropriate for the CERCLA program.

2.2.2     Environmental Review Procedures

          Figure 2-4 outlines the  environmental  review procedures  for
          floodplains as they apply to CERCLA/SARA.

          IRL:      During the  scoping of remedial  response actions,
                    EPA should identify any floodplains in the project
                    area  that  could  be  affected  by  the  remedial
                    action.  If no floodplains exit  in the project
                    area,   the   RI/FS  may  proceed  without  further
                    consideration  of the procedures set forth below.

          RI/FS:    If  floodplains are identified,  the impacts of
                    potential remedial actions on these areas must  be
                    assessed in  the  RI/FS.   As  indicated above, the
                    area of concern  for CERCLA/SARA actions includes
                    both the 100  and 500  year  floodplains.   The  RI/FS
                    workplan should  provide for  completion of flood-
                    plains assessment  during  the preparation of the
                    RI/FS.

                    The first phase of a floodplains assessment is the
                    accurate delineation  of the floodplains  in  the
                    project area.  If the project area is predominant-
                    ly privately  owned, EPA should consult with the
                    Federal Emergency  Management Agency (FEMA)  which
                    maintains maps that delineate  floodplains.   These
                    maps show the  boundaries and elevations of the 100
                    and 500 year floodplains (i.e.,  Zones  A and B,


                                 2.2.3

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   PROCEDURES FOR FLOQDPLAIN  REVIEW UNDER CERCLA / SARA
                                FIGURE 2-4
CERCLA/SARA
RRQJECT PHASE
   IRL
  RI/FS
                DETERMINE IF PROPOSED ACTION
                     IS IN  FLODDPLAINS  *
            DELINEATE FLOOOPLAINS
 IDENTIFY IMPACTS  OF PROPOSED ACTION
AND CONDUCT FLOODPLAINS ASSESSMENT
            FINDINGS  AND  PUBLIC EXPLANATION
  ROD
  RD/RA
DEVELOPMENT/IMPLEMENTATION
       OF MITIGATION
NO FURTHER FLOODPLAINS
   REVIEW REQUESTED
• FOR CRITICAL ACTIONS (CERCLA ACTIONSI/'FLOQOPLAINS" ARE DEFINED AS THE 500 YEAR
FLOODPLAINS ADAPTED FROM FEDERAL REGISTER, VOL. 43. NO. 29-FRIDAY. FEBRUARY 10. 1978
                                                               MIIIU IMflP IK.

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respectively) (see Figure 2-5).  A copy of a flood
insurance  rate  map can  be  obtained by  calling
FEMA's  National  Flood  Insurance  Program  at
1-800-638-6620.  For areas  predominantly  state or
federally  owned,  consult with the  controlling
agency.

Following  delineation   of   floodplains  in  the
project  area,  preparation  of  the  floodplains
assessment  can  proceed.   The  assessment must
include:

     a description of the proposed action;

     a description of  its  effects  on the flood-
     plains;

     a description  of  all  alternatives   to  the
     proposed action  and their effects   on  the
     floodplains; and

     a delineation of measures  to minimize  poten-
     tial adverse effects on the floodpalins.

If  no  practicable remedial  action  alternatives
exist outside the  floodplains,  EPA  shall  develop
measures to minimize adverse effects to the flood-
plains.  The following list presents some possible
(but  not all)  measures  for minimizing adverse
floodplains impacts:

     protecting  treatment   units/equipment  from
     flooding and  flood damage through  proper
     design considerations;

     using minimum grading requirements;

     returning the site to natural  contours;

     maintaining floodplain  vegetation  to reduce
     sedimentation;

     regulating methods used for grading,  filling,
     soil  removal  and  replacement  to  reduce
     sedimentation;

     requiring a topsoil protection program;

     minimizing easement widths;

     implementing  appropriate  erosion  control
     measures;

     minimizing the use of fill; and


             2.2.4

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V
SAMPLE FLOODPLAIN DELINEATION
SOURCE: FEMA FLOOD INSURANCE RATE MAP
FIGURE 2-5

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               restricting the  operation of  construction
               equipment and the placement of spoil storage
               areas in floodplains.

          The benefits  of  preserving  floodplains in their
          natural  or  relatively  undisturbed state include
          not only reduction of  flood  hazards,  but  mainte-
          nance of water quality standards,  replenishment of
          ground water, soil  conservation, the fostering  of
          fish, wildlife  and  plant  resources,  and the
          provision of recreational  areas.

          As stated previously,  the floodplains  assessment
          must be presented in the project's RI/FS.

ROD:       The ROD should include a summary of EPA's activi-
          ties to ensure  that impacts to floodplains  are
          properly addressed and mitigated.

RD/RA:    Unavoidable impacts to floodpalins must  be  miti-
          gated during  the  implementation  phase of  the
          CERCLA/SARA remedial action.
                       2.2.5

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2.3 ENDANGERED
    SPECIES

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2.3  ENDANGERED SPECIES

     The Endangered  Species  Act provides  a means whereby  various
     species of fish, wildlife, and  plants  which  are threatened with
     extinction may  be  conserved.    The  ESA defines  an  endangered
     species as "any species  which is in danger of extinction through-
     out all or a significant portion of its range...".   In  addition,
     the ESA defines  a  threatened species  &*  "any species  that  is
     likely to  become  an  endangered species withii:  «.ne  foreseeable
     future...".  Further, the  ESA provides for  the  designation of
     critical  habitats, which are  "specific areas  within  the geogra-
     phical area occupied by  the (endangered or threatened)  species...
     on which are found those physical  or  biological  features essen-
     tial to the conservation of the species...".

2.3.1     Legislative/Regulatory Framework (Potential ARARs)

               Endangered Species  Act of 1973JESA),  as amended
               (16 U§C 1531J

               Section 7(a) of  the ESA requires federal  agencies  to
               ensure that actions they authorize, fund, or  carry  out
               are not likely to jeopardize the continued existence of
               endangered/threatened  species or  adversely modify or
               destroy the critical habitats of such species.  Actions
               which might jeopardize listed species have been  inter-
               preted to include direct and indirect effects, together
               with the cumulative effects of other actions which  are
               interrelated  or  interdependent  with  the  proposed
               action.

               If listed species or  their habitats are to be  affected
               by a proposed  project, consultation between the  agency
               acting on  the project and  the  appropriate wildlife
               agency (i.e.,  the FWS for terrestrial and freshwater
               species and  the National  Marine  Fisheries  Service
               [NMFS] for marine species)  must be undertaken.   Con-
               sultation is required to  determine whether or not the
               project is likely to jeopardize  the continued  existence
               of any endangered/threatened species  or result in the
               destruction or  adverse modification  of a  critical
               habitat.   Section  7  of  ESA requires  that  specific
               procedures be  followed in order  to make this  determina-
               tion.
                                 2.3.1

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2.3.2     Environmental Review Procedures

          Figure 2-6 outlines the environmental review procedures for
          endangered/threatened species as they apply to CERCLA/SARA.

          IRL:      Early in  the planning phases  of a  CERCLA/SARA
                    remedial action,  EPA  must determine whether the
                    contamination at  the  site or  potential remedial
                    actions will have an  impact on endangered/threat-
                    ened species or critical  habitats.  In some cases,
                    knowledge of potential remedial  action and refer-
                    ence to Appendices  B-l and B-2 will satisfy the
                    requirements  for  making  this   determination.
                    However, where doubt exists, EPA must initiate the
                    informal consultation process  that follows.

                    If EPA is unable to make  a determination  concern-
                    ing  the  site's/project's  impacts on  endanger-
                    ed/threatened species and critical habitats using
                    available resources,  EPA  should  prepare a written
                    request to the appropriate office(s) of the FWS or
                    the  NMFS  requesting a determination  of  whether
                    there are listed  or proposed  species or  critical
                    habitats present  in the   study area.   A  written
                    request for  information  initiates informal con-
                    sultation.  The location and type of project and a
                    map of the planning  area  for  each project should
                    be included  with  the  letters  to  the FWS  or NMFS,
                    as appropriate.

                    The FWS and NMFS are required to  respond within 30
                    days of the receipt of such a request.  If the FWS
                    and  NMFS as  appropriate  determine that no listed
                    or proposed species are present  in the study area,
                    no further  consultation  with  these  agencies  is
                    required.  Results  of the informal  consultation
                    process should be presented in the RI/FS.

          RI/FS:    A determination during informal  consultation  that
                    an  endangered/threatened  species or  critical
                    habitat  is  present  and  may  be   impacted  will
                    necessitate preparation of a Biological Assessment
                    (BA).   The  RI/FS  workplan should  provide for
                    completion   of  endangered/threatened  species
                    assessment work plan during the  preparation of the
                    RI/FS.

                    The  intent of  the BA is  to examine  any  possible
                    impacts of  a proposed action  upon the affected
                    species or critical habitats  in  the  project area.
                    The  BA, prepared  following  the format  in  Appendix
                    B, should include:

                         .  interviews with wildlife  experts;


                                 2.3.2

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 PROCEDURES  FOR  ENDANGERED  SPECIES REVIEW UNDER CERCLA/SARA
                                  FIGURE 2-6
____,.,_.„.
CERCLA/SARA
PROJECT PHASE
 IRL
   YESJO-
RI/FS
                      REQUEST DETERMINATION FROM FWS I
                      NHFS OF WHETHER THERE ARE FEDERAL
                    ENDANGERED SPECIES IN THE STUDY AREA
           BIOLOGICAL
         ASSESSMENT (BAH
        PROJECT MAY ADVERSELY
        AFFECT LISTED SPECIES
                                                            1
                                           PROJECT IS NOT LIKELY TO
                                          ADVERSELY AFFECT SPECIES
 INITIATE SECTION 7
FORMAL CONSULTATION
 W/ FWS & NMFS (BO)
                                             SUPPLY FWS t NMFS
                                                WITH BA AND
                                               DETERMINATION
         PROJECT IS  LIKELY
          TO ADVERSELY
          AFFECT SPECIES
                                                            1
                                               PROJECT IS NOT
                                             LIKELY TO ADVERSELY
                                               AFFECT SPECIES
         RESOLVE THROUGH
          NEGOTIATIONS
         WITH FWS, NMFS
ROD
RD/RA
IMPLEMENT SPECIFIED,
    MITIGATION
                                                       NO FURTHER
                                                   ENDANGERED SPECIES
                                                     REVIEW REQUIRED
                                                                     HMUim f UVMffC,

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     .   a review of literature and field data to
        determine likely locations of critical
        habitat;

     .   an on-site inspection of the total  area
        affected (conducted in accordance with the
        site's Health and Safety Plan) to deter-
        mine the presence or absence of affected
        species and/or critical habitat;

     .   an analysis of the likely effects of the
        proposed project on the species in terms
        of individuals (short-term impacts) and
        populations (long-term impact);

     .   an analysis of alternative actions to
        protect the species; and

     .   a description of the study methodology.

Prior to the  implementation  of any of  the  tasks
outlined above, it is recommended that  the  speci-
fic scope of the BA be approved by the appropriate
FWS or NMFS office(s).

The BA must be completed within 180 days after the
date on  which initiated unless  an  extension is
granted.  Based upon  the  BA conclusions, EPA, in
consultation with the FWS or  NMFS,  must determine
what the next appropriate action is.

     If EPA determines the  project  is not  likely
     to adversely affect  any  listed or  proposed
     species, EPA will supply the appropriate area
     manager or  regional  director of the  FWS  or
     NMFS with that determination and the complet-
     ed BA.   Unless  FWS or  NMFS  disagrees with
     EPA's  determination  of  no  effect,  EPA's
     responsibilities under Section  7 of the ESA
     have been met. . Results of the EPA's determi-
     nation of  no effect  and documentation  of
     appropriate coordination must be presented in
     the RI/FS.

     If  EPA anticipates  that the  project may
     adversely affect a  listed or  proposed  spe-
     cies,  EPA  must  request a biological opinion
     (BO) by  initiating  the  formal  consultation
     process  with  the appropriate  regional  of-
     fice(s) of FWS or NMFS.  If a BO is required,
     no action  can  be approved until the  formal
     consultation process  is  completed and docu-
     mented in an RI/FS.
             2.3.3

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          EPA initiates formal consultation by requesting a
          (BO) from the  appropriate wildlife agency.  The
          requests must include a  copy  of the BA with any
          information  on the  proposed  project and project
          alternatives.  The  FWS  or NMFS  is  required to
          render the BO within a 90 day period that can only
          be  extended  by mutual consent  of  the  federal
          agencies involved.

               If the  proposed action  is  not likely  to
               jeopardize or adversely a'ffect the species  or
               criticalhabitat.No  further action  is
               required and the  proposed  project can  pro-
               ceed.  It should be  noted  that this  type  of
               determination  may   include  conservation
               measures that  should be implemented.   The
               results of the  formal  consultation must be
               included in the RI/FS.

               If the  proposed action is likely to jeopard-
               ize or  adversely affect an  endangered/threat-
               ened species or  critical  habitat.   In  this
               case, the  project must  be  stopped unless
               alternatives to avoid or mitigate any impact
               to the  species  or critical habitat can be
               found,  or  an  exemption  is  granted by  the
               Endangered Species  Committee  through  formal
               consultation procedures.

          It should be noted  that  exemptions  are  extremely
          rare (to date  only  one has  been granted nation-
          wide) and are  intended only  as  a  last resort.
          Issues of potential  impact  on species  should be
          resolved through consulation and coordination with
          FWS or  NMFS.   For  assistance in resolving these
          issues, the  NEPA  compliance  staff  should  be
          consulted.

ROD:       The ROD should include a summary of EPA's  activi-
          ties to ensure that  impacts to endangered/threat-
          ened species and  critical  habitats are properly
          addressed and  mitigated,  and that  the  ESA con-
          sultation process was followed.

RD/RA:    Unavoidable  project impacts to endangered/threat-
          ened species and critical habitats  must be mitiga-
          ted during the implementation phase of  the CERCLA/
          SARA remedial action.
                       2.3.4

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2.4 CULTURAL
 RESOURCES

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2.4  CULTURAL RESOURCES
     Under the National  Historic  Preservation Act\ federal agencies
     must take  into account possible  effects of  t,heir  actions  o
     properties on or eligible for inclusion  in the* National Regis
     of Historic Places  (NRHP).  The NRHP  is  a  listing of buildings,
     archaeological sites, districts and  objects  of national, state
     or local significance.  These properties are commonly referred to
     as cultural resources and the criteria of significance for their
     inclusion in  the  NRHP provides a conceptual  framework  for  the  I
     evaluation of these resources.

2.4.1     Legislative/Regulatory Framework (Potential  ARARs)

               Historic Sites Act of 1935 (HSA)  (16 USC 461 et seq)

               HSA authorizes the  establishment  of National  Historic
               Sites and  otherwise authorizes  the preservation  of
               properties  of  national  historical  or  archaeological
               significance; the  designation of  National Historic
               Landmarks;  criminal  sanctions  for violation  of
               regulations pursuant  to  the HSA; interagency,  inter-
               governmental, and  interdisciplinary efforts  for  the
               preservation of historic and  cultural  properties;  and
               other provisions.

               National Historic Preservation Act  of  1966 (NHPA), as
                mended, [16 USC 4707

               The NHPA establishes a positive national policy for the
               preservation of  the cultural  environment, and sets
               forth a  mandate  for protection in  Section 106.  The
               purpose of  Section  106 is to  protect properties listed
               in or eligible for  listing  in  the  NRHP through review
               and comment by  the  Advisory Council on Historic Pre-
               servation  (ACHP) of federal undertakings  that  affect
               such properties.   Properties  listed in the  NRHP  are
               declared eligible for listing  by  the Secretary of the
               Interior.   Through  Section  106 of the  ACHP's regula-
               tions,  a  public  interest process  is- established  in
               which the federal   agency  proposing an undertaking
               participates along with the State Historic Preservation
               Officer (SHPO), the ACHP, interested organizations  and
               individuals.  The process  is  designed  to  ensure that
               properties, the  impacts  on  them, and  the effects  to
               them are identified, and that  alternatives to avoid  or
               mitigate an adverse effect on property eligible for the
               NRHP are adequately considered in the planning process.
                                 2.4.1

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Executive Order 11593 - "Protection of and  Enhancement
of the Cultural Environment" - May 13, 1971

Executive Order  11593 gives  the Federal  Government
responsibility for stewardship of our Nation's historic
and cultural properties by charging each federal agency
with the task  of  identifying  and nominating  all  histo-
ric and cultural  properties  under i.s jurisdiction or
control, and  exercising  caution  to ensure  Inat such
properties  are not inadvertently transferred,  sold,
demolished, or substantially altered.

Archaeological and  Historic  Preservation Act of  1974
(AHPA) (16 USC 469 et s"eqT

The AHPA amends  the Reservoir Salvage Act of 1960  to
extend its  provisions  beyond the construction of dams
to any alteration of the  terrain caused  as  a result of
any federal construction  project or federally-licensed
activity or program.   In  addition, the AHPA  provides  a
mechanism for  funding  the protection  of  historical  and
archaeological data.

Presidential  Memorandum  - "Environmental Quality  and
Water Resources Management" - July 12, 1978

This  memorandum  directs  the ACHP to publish final
regulations implementing  Section 106  of the NHPA,  and
further directs each agency with  consultative responsi-
bilities under the  NHPA to publish procedures  imple-
menting those  regulations.

ACHP  - Regulations  for the Protection of Historic  and
Cultural Properties (36 CFR 800)

These regulations establish  procedures  for the imple-
mentation  of  Section  106 of  the NHPA, and direct
publication of agency  implementing procedures.

Archaeological Resources  Protection Act  of 1979 (ARPA)
(16 USC 470")

The purpose of the ARPA  is  to  provide  protection  for
archaeological  resources  found  on  public  lands  and
Indian lands  of  the United States.   The ARPA provides
this  protection  by  prohibiting  the  removal  of archaeo-
logical  resources on  public  lands and  Indian  lands
without  first obtaining  a  permit from  the  affected
federal  land  managing agency or Indian  tribe and  by
providing  for civil and  criminal penalties  for those
who  remove or damage  archaeological resources  in
violation of  the  ARPA.
                   2.4.2

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               Department of the Interior (DPI) - Criteria for Inclu-
               ?ion in the National  Register  of Historic Places (36
               CFR 60.4)

               These criteria are  used  to  evaluate whether cultural
               resources  will be eligible for  inclusion  on  the  NRHP.
               The evaluation is based  upon  the quality of signifi-
               can.e in American history, architecture,  archaeology,
               engineering, and culture which is present in  districts,
               sites,  buildings, structures, and objects that possess
               integrity  of  location,  design,  setting,  materials,
               workmanship, feeling, association,  and:

                    .   that are associated  with events  that
                       have made a  significant contribution
                       to the broad patterns of our history;
                       or

                    .   that are associated  with the lives of
                       persons significant  in our past; or

                    .   that embody  the distinctive
                       characteristics of a  type,  period, or
                       method of construction, or that
                       represent the work of a master,  or
                       that possess high artistic values, or
                       that represent a significant and
                       distinguishable entity whose
                       components may lack  individual
                       distinction; or

                    .   that have yielded, or may be likely
                       to yield, information important  in
                       prehistory or history.

2.4.2     Environmental Review Procedures

          Substantive  compliance with  cultural  resource  requirements
          means that cultural resources  included on  (or  eligible  for
          inclusion on)  the  NRHP that  are  located  on  or in  close
          proximity to the site are  identified.  Also  identified  are
          the possible effects of proposed  remedial  activities on  such
          resources.  If  the activity is likely to have an effect  then
          feasible alternatives to  avoid such effects must be examin-
          ed.  If an effect cannot  reasonably be avoided, then  meas-
          ures shall be  taken  to minimize  or mitigate  the potential
          effects.

          Figure  2-7  outlines  the   cultural resources  environmental
          review procedures as they apply to CERCLA/SARA.
                                 !.4.3

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PROCEDURES FOR CULTURAL RESOURCES REVIEW UNDER CERCLA / SARA
                            FIGURE 2-7

CERCLA/SARA
       — 111.!. ^ ^         ^-,Q ^
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NATIONAL
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<^""Mn \ 1^^-^^^
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IMPACTS
-
NO FURTHER
DEVELOPMENT/IMPLEMENTATION CULTURAL RESOURCE
OF MITIGATION . REVIEW NECESSARY

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IRL:       At this  level  of project  definition,  EPA will
          document the need for a cultural  resource  survey
          (CRS) and prepare a preliminary funding estimate.
          Additional   information  concerning the  proposed
          project should be studied in determining the need
          for,  and scope of, a CRS.   This information should
          include, but not necessarily be limited to:

               the type and scope of  activity  under  consi-
               deration;

               the nature and extent of the physical  disrup-
               tion associated with  the undertaking;

               the environmental  characteristics  of the
               planning area;

               the type  of direct  and  indirect  impacts
               anticipated in the planning area;

               the data gathered from a field  inspection  of
               the proposed planning area,  including photo-
               documentation  of any  potential  cultural
               resources that may be directly  or  indirectly
               impacted; and

               the recommendations  of the  SHPO  and  other
               appropriate  state  agencies,  and  state  and
               local  historic preservation groups.

          If a CRS is deemed to be necessary,  the  scope  and
          work schedule should be incorporated into the work
          assignment contract to be made  part  of the RI/FS
          Work Plan.

RI/FS:    A CRS means  the  category  of activities necessary
          to identify cultural  resources  within  the  project
          area and, where necessary, to develop the informa-
          tion required  to apply the  NRHP's  criteria  for
          inclusion.   The objective of the CRS is to develop
          adequate  information  to  make  the  substantive
          determinations required by  the  NHPA.   The  CRS is
          carried out in a staged fashion appropriate to the
          focus of the investigation.   The RI/FS  workplan
          should  include,  as appropriate,  the scope for
          Stage I  (A&B)  Site  Recognition Survey and if  an
          additional   survey (Stage  II)  is necessary,  it
          should be carried out before the completion of the
          RI/FS.  The  Stage  II  survey results  will provide
          EPA with sufficient information to determine  both
          the potential impacts and the need for mitigation.
          The data from  the CRS will be  incorporated  into
          the RI/FS  environmental analysis  and the reports
          will be appended to the document.
                       2.4.4

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Stage I Survey:  Site Recognition — The  Stage I
survey is  designed  to determine the presence  or
absence of  cultural  resources  in  the  project's
potential  impact area.  The Stage  I survey should
be conducted early during the planning activities
for each  project.   This allows  the  information
derived from this survey to be used in developing
and screening al:ernatives to minimize direct  and
indirect impacts on  hi-tjric  and  archaeological
properties.  For the  purpose  of this  survey,  the
study area  is  the  planning  area of the proposed
project.    To  facilitate planning, the  Stage  I
survey is divided  into  two  logically  progressive
units of study:

     Stage  IA;  Literature Search and Sensitivity
     Study

     The Stage IA is  the initial  level  of survey
     and  requires  comprehensive  documentary
     research designed  to  identify any known  or
     potential historical,  architectural,  and/or
     archaeological resources  within  a  project
     area.   A primary objective of the study is to
     evaluate the differential sensitivity of  the
     project area  for the presence of  cultural
     resources; this  information will be  used  to
     guide  the field  investigation that follows
     (Stage IB).   In  carrying out  the  literature
     search, sources  at the SHPO, universities,
     local   libraries, museums,  historical  socie-
     ties,  etc.,  are  consulted.  In addition,  the
     nature and extent of the proposed project is
     evaluated, an  initial  walk-over reconnais-
     sance  and surface  inspection is completed,
     and the effect of prior ground disturbance on
     the  probability  of  identifying  cultural
     resources is assessed.

     The final report should focus on the project
     area and minimally include:  a brief project
     description; a description of the environ-
     mental setting as  it  pertains to actual  or
     potential cultural  resource  locations;   a
     synthesis of prehistoric and historic cultu-
     ral  development and land use patterns; and a
     definition of sensitivity zones with explicit
     criteria  for  ranking.   This  report  must
     include  information  about  identified sites
     within, or in close proximity to,  the project
     area.   This  information  must  include all
     properties that  are eligible,  listed,  or
     being  considered for inclusion in  the  NRHP.
     Areas where substantial land modification is
             2.4.5

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     evident  should  be  clearly identified.   It is
     also  appropriate  to include materials  (e.g.,
     maps,  photos, soil  boring logs) which  support
     conclusions  presented  in the text.  Further,
     the Stage IA report will contain recommenda-
     tions  for any  subsequent Stage  IB  survey
     process.

     Stage  IB;  Field  Investigation -- Subsurface
     testing  is the  major component of this level
     of survey and is  required unless  the presence
     or absence of resources can be determined by
     direct observation  or  by  examination  of
     specific  documented references.   The areas to
     be subjected to a survey are selected  on the
     basis  of the   proposed remedial   actions.
     Although   detailed  evaluation  of specific
     resources is not  carried out  at  this  level,
     it is necessary to  record  and describe the
     sites  as  fully as  possible to aid  in the
     formulation  of  recommendations for avoidance
     or further  evaluation.  The  location  of
     identified resources with respect to areas of
     impact of  the  proposed  project  must be
     determined carefully.

     The  Stage IB report presents  the results  of
     the   field  investigation,   including:    a
     description  of  the survey design  and methodo-
     logy   (based on results of  the  Stage  IA);
     complete records  of soil stratigraphy; and an
     artifact catalogue  including  identification,
     estimated date  range,  and quantity or  weight,
     as appropriate.  The  locations of all  field
     test  units must be  accurately plotted on a
     project   area map, with locations of identi-
     fied  resources  clearly defined.   Photographs
     which illustrate  salient points of the survey
     are  a  necessary   component  of  the  final
     report.   Detailed recommendations and  support-
     ing  rationale for  any additional investiga-
     tion  must be incorporated  into the conclu-
     sions of the Stage IB  report.

If all cultural  resources  identified  through the
Stage  IA  and/or  Stage  IB  surveys  will not  be
impacted  by  the proposed  project, the  survey
process is complete.    If  cultural   resources
identified by these studies are within the  pro-
posed  impact  area,  further evaluation may  be
required  to determine  the potential eligibility of
the  resource  for inclusion  in  the NRHP.   The
extent of  additional cultural  resource study may
be reduced by project  modifications which avoid or
minimize  potential  impacts.

              2.4.6

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Stage II Survey:  Site Definition and Evaluation

The Stage  II  survey  is a detailed evaluation  of
identified cultural resources that may be affected
by  the  remedial alternatives  being  considered.
Research is  carried  out on  each  identified re-
source to provide adequate data to allow a  deter-
mination of the resource's eligibility for listing
in the NRHP.  The Stage  II report should include,
at a minimum, information on boundaries, integrity
and significance of the  resources, and  evaluation
of the impact of the proposed  project,  as well  as
any additional data necessary to evaluate eligibi-
lity for the NRHP.

The Stage II survey results will provide EPA with
sufficient information  to  determine  both impacts
and the need  for mitigation.  The data from the
CRS should be incorporated into the RI/FS environ-
mental analysis and the reports should be appended
to the document.

Determination of Eligibility

When  a  cultural resource  appears to meet  the
criteria for listing on the NRHP, EPA in consulta-
tion with SHPO  will apply  the  criteria  for  inclu-
sion  to  the  resource.    EPA  will  prepare appro-
priate documentation according to  DOI guidelines
for eligibility.   As  part of  the documentation,
EPA will solicit a written opinion  from the SHPO
concerning the  resource's  eligibility.   If  both
the EPA  and  SHPO  agree on eligibility,  EPA will
transmit the  documentation to the Keeper of the
National Register.   If a question exists or EPA
and SHPO cannot agree  on eligibility,  the  docu-
mentation will  be  forwarded to the Keeper  for a
determination.

Impact Evaluation

After  the  appropriate  CRS  studies  have been
accomplished, one of the following  determinations
of the effect of the proposed  remedial  activities
on all NRHP  listed and eligible resources identi-
fied  in the  project  area shall be made  by EPA  in
consultation with the SHPO.  An effect occurs when
an undertaking  changes  the  integrity  of location,
design,  setting, materials,  workmanship, feeling
or association  of a cultural resource eligible  for
listing.   Both  direct  and  indirect effects  shall
be considered.
             2.4.7

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Determination of no effect -- This determina-
tion shall be made  in  consultation with the
SHPO.  Both direct and indirect effects shall
be considered.   If  EPA in consultation with
the SHPO  determines  that there shall be no
effect, then no further review is necessary.

Determination of  no adverse  erFect  —  If
there will be an  effect  on a resource wnich
is listed or eligible for listing on  the
NRHP,  EPA in consultation  with  the  SHPO,
shall determine the  nature  of the effect by
applying  the  "Criteria of  Adverse Effect"
(see next section).   If a determination of no
adverse effect  is made,  EPA shall prepare
adequate documentation for this determination
for submittal to the ACHP.

Effects of an undertaking that would other-
wise be found to be adverse may be considered
to be not adverse when both the nature of the
impactTslimited  and  appropriate  data
recovery  is implemented.   For example, a data
recovery program may be applied to an archaeo-
logical site whose primary  significance  lies
in its ability to yield information important
to history or prehistory.  This data recovery
can take  the form of preserving  the  signifi-
cant information by  professional  excavation,
reporting  and  curation  of  archaeological
materials.  If the ACHP  concurs  or does not
object within 30 calendar days of the submis-
sion, data recovery may proceed.

Determination of adverse effect -- An adverse
effect is an alteration to a NRHP or eligible
property which detracts  from those characte-
ristics of  that resource  by which it  was
determined eligible.  The criteria of adverse
effect (36 CFR 800.9(b)) include, but are not
limited to the following:

     destruction or alteration of part or all
     of the property;

     isolation  from  or  alteration of  the
     property's surrounding environment;

     introduction of elements  which  are out
     of character with the  resource  or  alter
     its setting;

     neglect of  a resource which results in
     its deterioration; and
        2.4.8

-------
          transfer or sale of a  property  without
          adequate conditions regarding preserva-
          tion maintenance or use.

     If it is determined that a remedial activity
     has the potential to adversely affect a NRHP
     or eligible resource or  if  the  ACHP  objects
     to a determination of no adverse effect, the
     EPA shall prepare the required documentation
     (36 CFR 800.8).

     This documentation will  contain  the proposals
     to avoid or mitigate the adverse effects of a
     project upon a NRHP or eligible resource and
     shall be submitted  to  the ACHP.   The  ACHP
     will consult with  EPA,  the  SHPO, and other
     interested parties in examining all feasible
     alternatives  which  would   avoid   adverse
     effects  on NRHP  or  eligible resources.
     Generally,  the  formal  consultation  should
     result in  a  resolution  of any  adverse  ef-
     fects.

     When agreement is reached regarding an action
     or an  alternative,  the  ACHP will  prepare  a
     Memorandum of Agreement (MOA)  reflecting such
     concurrence.  EPA shall  not  take or authorize
     any action having  an adverse  effect  on  such
     cultural  resources  until  all  reasonable
     alternatives have been examined and the ACHP
     has accepted a  MOA or  has commented on the
     EPA's report.

Mitigation - Where EPA determines that the alterna-
tive to  avoid an effect  on  a NRHP or  eligible
resource is not feasible, measures  to minimize the
potential effects shall be developed  in consulta-
tion with  the SHPO,  the ACHP and, where  appro-
priate, other parties.   Mitigation may take the
form of avoidance through cost-effective redesign,
reduction of  the  direct impact on  the  resource,
and/or  data  recovery prior  to  construction.
Should  the  effects  be  adverse,  this  mitigation
plan, outlining  these measures,  shall be  included
in an MOA signed by the consulting  parties.

The mitigation plan shall be based  on engineering,
environmental, economic, and resource preservation
concerns.   Mitigation  shall  be  commensurate with
the nature  and  importance of  the cultural  proper-
ties and  the  extent  to  which  they  are affected  by
the project.
             2.4.9

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ROD:      The  ROD  should  include  a  summary  of  EPA's
          activities to  ensure that  impacts  to  cultural
          resources are  properly  addressed and  mitigated,
          and  that  the  ACHP's  consultation  process  was
          followed.

RD/RA:    The remedial  design process should provide for the
          scheduling and funding  of  the  development  and
          implementation of a cultural resources  mitigation
          plan.  EPA will be responsible for obtaining final
          SHPO and ACHP approval of any mitigation plan that
          involves alteration or  destruction  of identified
          NRHP properties.  In  general,  it will  be advant-
          ageous to complete on-site  data  recovery activi-
          ties prior to  construction; however,  provisions
          may  occasionally  be  necessary to  schedule  such
          work to occur during construction.
                       2.4.10

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Z5 WILD & SCENIC
    RIVERS

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3.1  INTRODUCTION

     In addition to establishing liability for the cost of cleaning up
     hazardous waste sites, CERCLA/SARA also establishes liability for
     "damages for  injury to,  destruction  of, or  loss of  natural
     resources,   including  the  reasonable  costs  of  assessing  such
     injury, destruction, or loss" (Section 107(a)(c)).  Under CERCLA/
     SARA, natural  resources  are defined  -s  "land,  fish,  wildlife,
     biota, air, water,  ground water, drinking w-Ldr  supplies,  and
     other such  resources".

     CERCLA/SARA requires the President to designate federal trustees
     (i.e., selected  federal  agencies)  to act "on  behalf of the
     public".  Similarly,  States are also required  to designate an
     official to  represent the  interests  of the  public  for those
     natural  resources  under  State  trusteeship.   Through  executive
     orders and  the NCR, the  President  has  designated the  federal
     agencies who  will  act as  trustees  for  those  resources under
     federal jurisdiction  (see  Table  3-1).   Because  natural  resources
     fall  under  many  jurisdictions,  there  may be  federal, state,
     local, and  foreign government or Indian tribes as trustees.

     If the trustee determines  there  is a  threat  to  natural  resources
     under their trusteeship, it is  the responsibility of  the  trustee
     to conduct a natural resources damage assessment  (NRDA) document-
     ing those injuries.   In  order  for a  trustee  to conduct an NRDA,
     they must have access to all the pertinent information related to
     contamination  and  the  site and  the  proposed remedial actions.
     The trustee may  not make a claim for damages  until  a remedial
     action has  been  selected.   The  federal  natural  resource trustees
     are constrained by CERCLA/SARA and may not grant a release unless
     "the  potentially responsible  party  agrees to undertake appro-
     priate actions necessary to protect  and restore  the natural
     resources damaged" (Section 122(j)(2)).   The NRDA regulations are
     found in 43 CFR  II.

     Theoretically, Superfund can be  used  to  pay  for natural resource
     damages (section III(b)).  However,  the funding provision (Super-
     fund  Revenue Act of  1986)  effectively prohibits such  use  of the
     fund.

     Although it is true  that the  EPA is  not responsible for conduc-
     tion  the NRDA and  recovering  the  claim for  natural  resource
     damages, the  EPA can  and should provide the  data  necessary  for
     the trustees to perform these responsibilities.   In fact, because
     the RI/FS  must address  impacts  to  the   public  health and the
     environment, and natural resources by definition  are  part of the
     environment,  the EPA is required to address natural  resource
     issues in its  RI/FS.  Accordingly,  coordination between EPA and
     the trustees  must take  place  throughout the RI/FS process  to
     enable the trustees and EPA to meet their statutory responsibili-
     ties.
                                  3.1

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3.2  EPA ACTIONS

     As stated in Section  3.1,  EPA  is  not responsible for conducting
     the NRDA; however,  much  of the data  that  the  trustees  need to
     perform  its  responsibilities is  developed during  the  RI/FS.
     Specifically, CERCLA/SARA requires the EPA to:

          notify trustees  of  potential  damages  to natural resources
          resulting from releases under investigation;

          coordinate EPA's  assessments,  investigations and  planning
          with trustees; and

          notify and encourage trustees to participate in negotiations
          of  settlements  at sites where there  is the potential  for
          damages to natural resources.

     In order to  properly notify the  respective  trustees,  EPA must
     determine which ones may be  responsible for  natural  resources  in
     the vicinity  of a  specific  site  (see Table 3-1).   When the
     appropriate trustees  are identified, they should be formally
     notified about the major phases of EPA activities for the CERCLA/
     SARA remedial action process.  The trustees must be notified (see
     Notification Form in Appendix 6-1) of:

          potential damages  to  natural resources from a release or
          threatened release of hazardous substances  (Section 104(b));
          and

          initiation of  formal  negotiations  with responsible parties
          (Section 122(j)).

     Following notification  of  trustees, EPA should  coordinate  with
     them throughout the CERCLA/SARA remedial action  process to ensure
     that  the concerns  of the trustees  are addressed.   Although
     coordination  can  be  informal,  it is recommended  that  it  be
     conducted formally for major decision points.

     Although  many  of  the  procedures  that are  followed  to  ensure
     compliance with other environmental  statutes are similar to the
     procedures for  coordination  with the trustees,  the procedures
     cannot  substitute  for  natural  resource trustee coordination.
     Similarly, coordination  with the  trustees  cannot substitute for
     EPA's  activities  to  ensure  compliance  with the environmental
     statutes.

     Trustees  often  assume other roles which result  in  coordination
     with EPA.  For example,  the  DOI has  entered  into a  Memorandum of
     Understanding  (MOU) with  EPA  providing  for the conduct of
     preliminary  natural  resource surveys  (PNRSs)  for  enforcement
     sites  (see Appendix  G-2).   The  primary  purpose of the MOU is  to
     ensure timely requests from  EPA and  timely responses from DOI so
     that  a determination  can  be made whether  or  not to grant  a
                                  3.2

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     release from claims for damages to natural resources as part of a
     settlement agreement with responsible  parties  at NPL sites.  By
     mutual agreement, a list of specific sites will  be  developed  for
     which DOI will  conduct these  PNRSs.   EPA will, upon  request,
     provide DOI's  regional  environmental  officers with  information
     and assistance  on  preliminary surveys,  including  all  relevant
     technical  documents, draft  and final   endangerment  assessments,
     RI/FSs, anc! remedial designs for sites  on which  a  PNRS is to be
     prepared.

     In addition, a  technical  advisory  group  on biological  resource
     concerns has been  established in Region  II  (the Bioassessment
     Work Group).  This group is available  to  provide advice concern-
     ing potential  impacts  on  biological resources  at the request of
     RPMs.

3.3  TRUSTEE ACTIONS

     The following is a brief synopsis of the  NRDA process as present-
     ed in the August  1,  1986 NRDA regulations (Final Rule).   It  is
     intended to foster EPA's understanding of the NRDA process and to
     shed light on the trustees data needs  for conducting NRDSs.

     Preassessment Screen - The NRDA process  begins with  a  Preassess-
     ment Screen to  determine whether the hazardous  substance  release
     justifies  a NRDA.  This  screen is viewed as  a  "desk top"  review
     of existing data with  a  minimal  amount of field work and should
     only take  a few days for the trustee(s) to complete.

     A determination is required upon completion of  this  screen.   The
     decision to proceed beyond this screen  must be  based upon preli-
     minary findings that:   the  discharge  or  release was covered  by
     CERCLA/SARA, it could  have  resulted in  some injury  to the re-
     source, the resource potentially injured  and the extent of poten-
     tial injury are of  concern  to the  trustee,  and  the  trustee  has
     reason  to  believe  that  the potential  benefits outweigh  the
     potential  costs of performing an assessment.

     If the  preassessment  screen results in  a determination that a
     NRDA is appropriate, the  next  phase is to prepare an Assessment
     Plan.   However, if the preassessment screen results in a determi-
     nation that  a  NRDA is not  appropriate,  no further  assessment
     actions are to be taken.

     Assessment Plan -  An  Assessment  Plan  must be  prepared for any
     remedial action requiring a  NRDA.   The  plan  should  include
     documentation of all decisions made regarding the selection  of
     the methodology to be used  for  the NRDA.   Methodologies are
     discussed  in  subparts  D and  E of  the  Final  Rule.   The  cost
     methodology used may be  an estimation  of restoration/replacement
     costs or diminution in use  values.  The Plan  should ensure that
     the costs  incurred in conducting the NRDA are reasonable and that
                                  3.3

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                                    TABLE 3-1

            NATURAL RESOURCE TRUSTEESHIPS FOR EPA REGION 2

Department of the Interior

0    Fish and Wildlife Service

     -  Migratory birds
     -  Anadromous fish
     -  Endangered/threatened Species
     -  Critical habitats
     -  National wildlife refuges
     -  National fish hatcheries

0    National Park Service

     All units of the national park system, including but not limited
     to:

     -  National parks
     -  National seashores
     -  National recreation areas
     -  National historic sites
     -  National battlefields
     -  National scenic and recreational rivers

Department of Commerce

     -  Coastal environments and habitats
     -  Habitats (rivers and tributaries) of anadromous and
        catadromous fish
     -  Endangered/threatened species
     -  Tidal wetlands
     -  Marine sanctuaries
     -  Commercial and recreational marine fishery resources

Department of Agriculture

     -  National forests

Department of Defense

     -  Department of Defense installations

Department of Energy

     -  Department of Energy installations

States

     The responsibilities  of  the states  are  state specific  to be
     decided by each  state  Governor.   Similarly, the  Governor  also
     designates the appropriate  state  agency  to act as the Trustee.
     Contact should be made with the  respective state environmental
     department or  attorney general's  office  for the. information
     regarding trustee designations  and responsibilities.

Indian Tribes

     - Tribal lands
Note:  Some of  the  natural resources are  under  co-trusteeships and
activities must be coordinated accordingly.  For example, both DOI and
DOC have  trustee  responsibilities  for certain endangered/threatened
species.
                                       3.4

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the Assessment  is  conducted in  a  cost-effective manner.  The
trustee should refer to the definitions stated in the  Final  Rule
for "reasonable  costs"  and "cost-effectiveness"  when  preparing
the Assessment Plan.

A confirmation  of  exposure must be  conducted as part  of the
Assessment Plan  phase of  this  process.  The  confirmation  of
exposure is the  second sr-een in the  assessment  process.  It is
intended to ensure that the trus*^ has confirmed that the oil or
hazardous substance has actually come  into  contact  with the  re-
source.  If the  trustee cannot confirm  that the  oil or  hazardous
substance has actually come  into contact  with the  resource,  no
further assessment actions are taken.

Injury Determination - An  injury determination must be  made  as
the third  screen of the  NRDA process.   To  assert  a  natural
resource damage  claim, the trustee must establish that  an injury
occurred and must link that  injury to  the discharge or release.
Otherwise, no further assessment actions  are  to  be  taken and no
assessment costs will  be recovered.

In addition to satisfying  the injury  determination, the pathway
of the discharged or  released substance from the source  to  the
resource must be demonstrated.   For example, biological resources
can carry  the substance away from  the site  by  either direct
physical contact or by exposing  other organisms  through  the  food
chain.  Oil or  hazardous  substances contained in  ground water
resources may move  to a lake  or  stream, thereby  exposing biolo-
gical  resources.  The use of transport and fate modeling in media
such as air or water may be useful  in many  situations  for demon-
strating  the  pathway.   In  other situations,  sampling  may  be
required.  The Final Rule provides  guidance o.n selecting, testing
and sampling methodologies for injury and pathway determinations.

EPA should coordinate its  RI/FS  with  the trustee regarding  the
injury and pathway  determination as  the required investigations
will be useful for both the RI/FS and NRDA.

Review of  the Assessment  Plan - Upon  completion of the Injury
Determination phase,  the  trustee must review  the methodologies
selected in the Assessment Plan.   This step allows the trustee to
refine  the  restoration  or  replacement alternatives  and cost
estimates initially identified  in  the Assessment Plan  phase  in
order  to  select  a cost-effective,  feasible  restoration or  re-
placement alternative for comparison with diminution of use.   The
distinction between restoration and  replacement alternatives
will,  in  most cases,  depend on   the nature  of the  lost or dis-
rupted services  previously provided by the resource.
                             3.5

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Termination of Assessment or Selection of Further Methods - If an
injury, as defined  in  the Final Rule, cannot  be determined or
confirmed or  cannot be  linked  to the  discharge or  release,
further assessment  efforts should  be  terminated and the results
of the  Injury  Determination  phase documented in the  Assessment
Plan.   If an  injury determination has been made, methodologies
for the next two steps must be  selected that are consistent with
the findings of  the Injury C-etermi nation.  If the  decision was
;';jt previously made, the trustee must decide whether  restoration
or replacement costs or a diminution of use values  will  form the
basis of the damage determination.  The Final Rule  provides that
when significant  modifications  occur to  the Assessment  Plan,
these modifications shall be made available for public review and
comment.

Quantification of Effects - Having established that the  resource
was injured by  the  discharge or release, the  next  step in the
NRDA process is to quantify the effects on the injured resource.

Because the purpose of the NRDA is to determine  compensation for
injuries rather  than a  decision on the level  of cleanup, this
step requires  ascertaining  the  baseline  level  of  the services
provided by the resource prior  to  the discharge  or  release.  The
baseline level  of services is then compared to the existing level
of services,  or the anticipated  level  of  services upon  the
completion of  any  response actions, to determine  the residual
change resulting from the discharge or release.  Services include
such ecological services as  flood and erosion  control, habitat,
and food chains as well  as such human uses as recreation.

Again, coordination between EPA and the trustee  at  this  phase  in
the process will be useful for  both the RI/FS and NRDA.

Damage Determination - The next step  of  the process is applying
the method of estimating the damages, using the costs of restora-
tion/replacement or the diminution  of use  values  that  were
determined in the Assessment  Plan.  It is important  to  distin-
guish "damages"  from "injuries" in the NRDA process.   Injuries
are situations  of  harm  to natural  resources,  and  damages  are
financial compensations  made  to the trustees  of these natural
resources for  such  harm.   The  final rule provides  guidance on
applying these methods.

Report of Assessment - At the conclusion  of either  a  Type  A or  a
Type B  assessment,  the trustee  must  document  the results of the
process in a Report of Assessment.  This  documentation includes
the Preassessment Screen Determination  and  the Assessment Plan,
with all comments and responses.   This document  must  be  filed  as
the Report of Assessment with a court or  an administrative body
in case further legal action is necessary.
                             3.6

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Post-Assessment - The final step of the NRDA process involves the
establishment of an  account  into which all monies awarded  pur-
suant to section 107 of CERCLA/  SARA for compensation for  injur-
ies must  be placed.  SARA requires that  funds  recovered  for
injuries must be retained  by  the trustee only for restoration,
rehabilitation, replacement, or the acquisition of the equivalent
of the injured resource.
                             3.7

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2.5  WILD AND SCENIC RIVERS

     Wild and scenic rivers are defined by the Wild and Scenic Rivers
     Act as "selected rivers in the Nation which, with their immediate
     environments, possess  outstandingly  remarkable scenic, recrea-
     tional, geologic, fish and wildlife, historic, cultural or other
     similar values".

2.5.1     Legislative/Regulatory Framework (Potential  /^'..is)

               Wild and Scenic Rivers Act of 1968 (WSRA)  (16 USC  1274)

               The WSRA  which is jointly administered  by the U.S.
               Department of Agriculture (USDA) and DOI establishes a
               system of classification of  rivers  as  wild scenic,  or
               recreational.  Rivers are proposed  for  protection  and
               are added to a  national  inventory  by state or federal
               legislation by approval of the  Secretary of Interior.
               The inventory  focuses on those  rivers  nominated  by
               government agencies, private  groups and/or  individuals,
               which are significant for their recreational, cultural
               and natural  values.   Each of  these rivers must meet the
               criteria of the WSRA, which specifies that an eligible
               river must:

                    be five miles or more in length;

                    be a free-flowing river  or stream (rivers may  have
                    undergone some  impoundment or diversion  in  the
                    past);

                    be generally undeveloped  (river may be developed
                    for the full range  of agricultural  uses and  can
                    include small communities as well as dispersed or
                    cluster residential  housing);

                    may be  accessible by road or  railroad  or be
                    largely undeveloped; and

                    be adjacent to or within a related land area that
                    possesses an outstandingly remarkable geologic,
                    cultural, historic,  scenic, botanical, recreation-
                    al  or other similar value (interpreted to mean an
                    area of multistate or national  significance).

               It should be noted  that  rivers  in  the inventory fall
               into three (3) categories (i.e.,  listed, under  study,
               and eligible).   Under the WRSA  the categories are
               afforded different levels of  protection.
                                 2.5.1

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               Under  the  WRSA, federal  actions  on water  resources
               projects are  prohibited if they  result  in a  direct
               adverse effect  on  those characteristics  which results
               in the river's classification.  For the purposes of the
               WSRA,  water  resources  projects  are defined  as  any
               project (or action) that could affect  the  free-flowing
               characteristics of  the  particular river  (e.g., place-
               ment  of  riprap, dredge/fill  operations,  wastewater
               discharges, etc.).  Additionally,  the  DOT has deter-
               mined  that actions  within one-quarter  mile or within
               the  visual  field  of  the  river could  have  a  direct
               impact.

               Presidential Environmental Message - August 2, 1979

               This message extends  the  requirements  of the WSRA  by
               directing federal  agencies  to avoid or  mitigate any
               adverse impacts on rivers identified in  the inventory.
               In effect,  this message affords  equal protection  to
               rivers in the inventory,  regardless  of their  specific
               category.

2.5.2     Environmental  Review Procedures

          Figure 2-8 outlines  the environmental  review  procedures  for
          wild and scenic rivers  as they apply to CERCLA/SARA.

          IRL:      As early as possible in the  planning  process,  EPA
                    should determine if there are any wild and  scenic
                    rivers on  the  national  inventory  in the  project
                    area (see  Appendix C).   .If  no  such rivers are
                    present in the  project  area, the  analysis is
                    complete.

          RI/FS:     If the project area  contains a wild  and scenic
                    river in the  inventory,  it  must  be determined
                    whether the CERCLA/SARA remedial  action  alterna-
                    tives  will  impact  the river.   The RI/FS  workplan
                    should provide for completion  of  wild and scenic
                    river assessment work during the  preparation  of
                    the  RI/FS.

                    In particular, the impacts on the specific  quali-
                    ties  of the river  as well as possible mitigating
                    measures  should be evaluated and presented  in  the
                    project's  RI/FS.

                    If any alternative plan under  consideration will
                    result in  conditions  inconsistent  with the charac-
                    ter  of the designated segment, it must be elimi-
                    nated  from  consideration  as  unacceptable.  It  must
                    be noted  that  the classification of  the particular
                                 2.5.2

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PROCEDURES FOR WILD  AND SCENIC RIVERS  REVIEW UNDER CERCLA/SARA
                               FIGURE 2-8

 CERCLA/SARA
 PROJECT PHASE
 IRL
 RI/FS
                  DETERMINE IF PROPOSED ACTION
                  MAY IMPACT ANY WILD. SCENIC
                   OR RECREATIONAL RIVER AREA
            DETERMINE IF PROPOSED ACTION
          INVOLVES WATER RESOURCES ACTIONS
             YES
  EVALUATE PRIMARY IMPACTS
ASSOCIATED WITH THE PROJECT
          DETERMINE IF PROPOSED ACTION WILL
           RESULT IN CONDITIONS CONSISTENT
           WITH THE CHARACTER OF THE RIVER
                       NO
                       I
 ROD
  RD/RA
MITIGATE OR MODIFY THE PROJECT
1
i
DEVELOPMENT/IMPLEMENTATION
OF MITIGATION

                                           NO FURTHER
                                       WILD & SCENIC RIVERS
                                         REVIEW REQUIRED
                                                                    inc.

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          river has  a  bearing  on  what is  considered  an
          acceptable impact.  For example, any alteration of
          a wild river is unacceptable although some impacts
          upon recreational rivers are permitted.   Further,
          consultation with the USDA  or  DOI is recommended
          to ensure that impacts to wild  and  scenic rivers
          are adequately assessed and  mitigated.

ROD:      The ROD should include a summary  of  EPA's activi-
          ties to ensure  that impacts to wild and  scenic
          rivers are properly addressed and mitigated or the
          project is modified.

RD/RA:    Unavoidable project  impacts on wild and  scenic
          rivers and conditions  inconsistent  with  a desig-
          nated segment must be mitigated during the imple-
          mentation  phase   of  the  CERCLA/SARA remedial
          action.
                       2.5.3

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2.6 COASTAL ZONES

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2.6  COASTAL ZONES

     Coastal zones as defined by  the  Coastal  Zone Management Act are
     "the coastal waters (including the lands therein and  thereunder)
     and the adjacent  shorelands  (including the  waters  therein  and
     thereunder), strongly influenced by  each other and  in proximity
     to the shorelines  of  the several coastal  states, and includes
     islands-  transitional and  interti'lal  areas,  salt marshes, wet-
     lands, and beaches".

2.6.1     Legislative/Regulatory Framework (Potential ARARs)

               Coastal  Zone Management Act (CZMA)  (16 USC 1451)

               The CZMA  states  that a federal agency conducting  work
               that will affect a designated coastal zone  shall do  so
               in a manner that is, to the maximum extent practicable,
               consistent with approved state coastal zone  management
               programs.  The CZMA  encourages  each coastal state to
               develop a coastal  zone management  plan which provides
               for "increased specificity in protecting significant
               natural  resources, reasonable coastal-dependent econo-
               mic growth, improved protection of life and property in
               hazardous areas,  and improved predictability in govern-
               mental decision-making"  (section  303(3)).   To date,
               twenty eight  (28)  of  the  thirty  five (35)  coastal
               states have approved such plans, including  New Jersey,
               New York,  Puerto. Rico, and the  Virgin  Islands.   In
               effect,  these plans regulate land  and water  use speci-
               fically for the  coastal  zones.   Federal  agencies  may
               not approve proposed projects  which are  judged to be
               inconsistent with  a state's approved management plan,
               unless this judgement is overridden by the Secretary of
               Commerce, who has principal authority over  the  federal
               coastal  zone management program.

               The procedures for ensuring that federal  projects  are
               consistent with approved coastal zone management plans
               are addressed in the following sections  of the CZMA.

                    Sections 307(c)(l) and (2)  address projects which
                    do not require  permits  or  licenses.   For these
                    projects, the lead  federal  agency  makes the
                    determination of  consistency.  Most CERCLA/SARA
                    actions fall into this category.

                    Section  307(c)(3)  addresses  projects  which   do
                    require permits or licenses.  For these projects,
                    the  appropriate  state coastal  zone  management
                    program authority makes  the determination.   The
                    certification of consistency must be presented  in
                    the permit or license applications.
                                 2.6.1

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               National  Oceanic  and Atmospheric Administration (NOAA)
               -  Regulations on  Federal  Consistency  with  Approved
               Coastal Management  Programs  (15  CFR  930)

               These  regulations  describe  the  obligations  of all
               agencies  and  other  parties involved  who are required  to
               comply with the provisions of the CZMA and implementa-
               tion  of  federal  consistency  provisions.   The regula- v
               tions also provide  several procedural  processes  involv-
               ing coordination  of consistency decisions with coastal
               management  programs, Secretarial  review  of  federal
               license  or permit  activities, and  notification and
               reporting  of  inconsistencies.   Procedures for perform-
               ance  review  of state implementation  and  federal con-
               sistency  provisions  are also  included.

1.6.2     Environmental  Review Procedures

         Figure 2-9 outlines the  environmental  review procedures for
         coastal zones  as they apply to CERCLA/SARA.

         IRL:      As early as  possible during the planning process,
                   EPA  should  consult  with the  state  office of
                   coastal  zone management (or equivalent)  in order
                   to determine whether  or not the  proposed CERCLA/
                   SARA  action  affects  a  coastal zone  for  which an
                   approved management plan  exists.   If  not,  no
                   further  analysis for  coastal zone consistency is
                   required.

         RI/FS:    If the proposed action affects  a  coastal zone, EPA
                   shall assess the impact of  the  proposed  action and
                   each  alternative  to the  proposed action on  the
                   coastal  zone.   The  RI/FS workplan should provide
                   for  completion of coastal  zone assessment work
                   during the preparation of the RI/FS.

                   The  great majority  of CERCLA/SARA projects will
                   not  require  a  consistency  determination by  the
                   state  coastal   zone  management  office   because
                   specific permits or licenses will  not be required.
                   In these cases,  EPA will  make a determination of
                   consistency with the  approved state coastal  zone
                   management plan.

                   However,  if  the proposed action  may affect  the
                   coastal  zone for which there  is an approved
                   management plan  and  the project requires permits
                   or licenses,  then  EPA  must seek  a  consistency
                   determination  (i.e.,  a  certification  of  the
                   action's consistency with the approved management
                   plan)  from  the  state  coastal  zone  management
                                2.6.2

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  PROCEDURES FOR COASTAL  ZONE  REVIEW  UNDER CERCLA / SARA
                               FIGURE 2-9
CERCLA/SARA
PROJECT  PHASE
  IRL
  RI/FS
                  DETERMINE WHETHER OR NOT THE
                  PROPOSED ACTION MAY DIRFCTLY
                     AFFECT A COASTAL ZONE
                        NO
           DETERMINE WHETHER PERMITS OR
             LICENSES WILL BE REQUIRED
             I
                                       T
  EPA MAKES CONSISTENCY
   DETERMINATION UNDER
      301 (cl(l) OR (21
 EPA SEEKS CONSISTENCY
  DETERMINATION WITH
APPROVED STATE COASTAL
 ZONE MANAGEMENT  PLAN
    UNDER 301 (c)(3l
                                   T
           INCONSISTENT
                    DETERMINE WHETHER
                      CONSISTENT OR
                      INCONSISTENT
           CONSISTENT
           MITIGATE OR  MODIFY THE PROJECT
  ROD
  RD/RA
DEVELOPMENT/IMPLEMENTATION
       OF MITIGATION
     NO FURTHER COASTAL ZONE
         REVIEW REQUIRED
                                                              IUWtK.|MHIP IVC.

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          office or equivalent.  This consistency determina-
          tion must be sought in accordance with  procedures
          promulgated by NOAA in 15 CFR 930.

          If the CERCLA/SARA action  is judged  to  be incon-
          sistent with the management plan  by either EPA or
          the state coastal zone management office, EPA may
          not approve or fund the action unless the project
          can be modified or its impacts properly mitigated
          to ensure consistency.  Results of the consistency
          determination made by the EPA or  state coastal
          zone management  office  should  be documented and
          presented in the RI/FS.

ROD:      The ROD should include a  summary  of EPA's activi-
          ties to ensure that  impacts  to the coastal zone
          are properly assessed and mitigated as well as an
          appropriate  statement of  consistency  with the
          coastal zone management plan.

RD/RA:    Unavoidable  project   impacts  on   coastal  zones
          should be  mitigated  during  the  implementation
          phase of the CERCLA/SARA remedial action.
                       2.6.3

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2.7 COASTAL BARRIERS

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2.7  COASTAL BARRIERS

     Coastal barriers are  long,  narrow landforms made of sand which
     protect other coastal features from the open ocean.

2.7.1     Legislative/Regulatory Framework (Potential ARARs)

          Coastal Barrier Resource Act of 1982 (CBRA) (16 USC 3501)

          The CBRA recognizes the  importance  of  the coastal barriers
          along  the  Atlantic  and Gulf coasts  and  the adjacent wet-
          lands, marshes, estuaries, inlets, and nearshore waters.  It
          established the Coastal Barriers Resources System consisting
          of the undeveloped coastal barriers  along the Atlantic and
          Gulf coasts of  the  United States.   In addition,  it  estab-
          lished certain limitations on federal expenditures affecting
          the system.

          DOI/FWS - Coastal Barrier Act Advisory Guidelines -  October
          6. 1983

          FWS issued Advisory Guidelines to provide background oh what
          the CBRA  requires  of  projects  that  may affect these  re-
          sources.  The guidance specifies the requirement for coordi-
          nation with the  FWS  if a project is supported by federal
          funds and affects coastal barriers.

2.7.2     Environmental  Review Procedures

          Figure 2-10 outlines the environmental  review procedures for
          coastal barriers as they apply to CERCLA/SARA.

          IRL:       At the  outset of  the  CERCLA/SARA process,  EPA
                    should determine whether  or  not the project  may
                    affect a designated coastal barrier resource area.
                    (see Appendix D).

          RI/FS:    If the CERCLA/SARA action  may affect a  designated
                    coastal barrier, EPA must  notify  and consult  with
                    the FWS.  The  report  and  recommendations  of this
                    consultation should  be  documented in the  RI/FS.
                    The RI/FS workplan should  provide for completion
                    of coastal  barrier assessment  work during  the
                    preparation  of  the RI/FS. The  RI/FS must also
                    evaluate the impacts of  the proposed  remedial
                    action and  alternatives on the coastal barrier.
                    Impacts must be avoided  or mitigated  to the
                    maximum extent practicable.

          ROD:       The ROD should include a summary  of  EPA's  activi-
                    ties to ensure  that  impacts  to coastal barriers
                    are properly assessed and  mitigated as well as the
                    results of consultation with  FWS.
                                 2.7.1

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PROCEDURES  FOR  COASTAL BARRIER  REVIEW  UNDER CERCLA / SARA
                              FIGURE 2-10
CERCLA/SARA
PROJECT PHASE
 IRL
RI/FS
               DETERMINE WHETHER OR NOT THE
                PROPOSED ACTION MAY AFFECT
                    A COASIAL BARRIER
           CONSULT WITH FWS
           EVALUATE IMPACT OF PROPOSED
           ACTION AND ALTERNATIVES ON
              THE COASTAL BARRIER
           MITIGATE OR MODIFY THE PROJECT
ROD
RD/RA
DEVELOPMENT/IMPLEMENTATION
      OF MITIGATION
  NO FURTHER
COASTAL BARRIER
REVIEW REQUIRED
                                                            nMUIRE IUHIP INC.

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RD/RA:    Unavoidable impacts  to  coastal  barriers must  be
          mitigated during the  implementation  phase  of the
          CF.RCLA/SARA remedial action.
                       2.7.2

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2.8 WILDERNESS AREAS

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2.8  WILDERNESS AREAS

     A wilderness area is defined by th'e Wilderness Act as "an area of
     undeveloped federal  land retaining its  primeval  character and
     influence, without  permanent  improvements or human  habitation,
     which is  protected  and managed so  as  to preserve its  natural
     conditions...".  Wilderness areas  (1) are  substantially unaf-
     fected by  human  activities,  (2) have outstanding  opportunities
     for solitude,  (3) generally are at  least  5,000 acres  in  are-  *nd
     (4) generally  have  features of ecological,  geological, scienti-
     fic, educational, scenic or historic value.

2.8.1     Legislative/Regulatory Framework (Potential  ARARs)

               Wilderness Act (WA)  of 1964 16 USC 1131-1132

               The  WA establishes  the  national system  of  wilderness
               areas including  a policy for protecting and  managing
               these areas.  The USDA and  DOT  are  directed by the WA
               to  recommend appropriate  wilderness  areas  to  the
               President.

               The  WA prohibits certain  activities within wilderness
               areas.    Permanent  or  temporary  roads,  commercial
               enterprise and structures or  installations  are prohi-
               bited,  except as necessary  to  properly  administer the
               area and protect public health  and safety.  The  use  of
               motorized  vehicles  or motorized  equipment  is  also
               prohibited except as noted.

               The WA establishes  restrictions on mining activities in
               wilderness areas, but allows the President to authorize
               prospecting  for  certain  studies or actions  that are
               beneficial to the public  interest.  States  or private
               individuals owning  land surrounded by  a  wilderness area
               are given either the rights necessary  to provide access
               to their  land  or the right to  exchange  the land for
               comparable federal  land in the same state.

2.8.2     Environmental  Review Procedures

          Figure 2-11  outlines the  environmental  review procedures for
          wilderness areas as they  apply to CERCLA/SARA.

          IRL:      At the  outset  of the  CERCLA/SARA  process,  EPA
                    should  determine whether  or  not  the project may
                    affect a designated wilderness area (see  Appendix
                                 2.8.1

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 PROCEDURES  FOR WILDERNESS  AREA  REVIEW  UNDER CERCLA/SARA
                              FIGURE 2-11
CERCLA/SARA
PROJECT  PHASE
IRL
RI/FS
ROD
   YES
RD/RA
DETERMINE WHETHER OR NOT THE
 PROPOSED ACTION MAY AFFECT
     A WILDERNESS AREA
          CONSULT WITH DOI OR USDA
           EVALUATE IMPACT OF PROPOSED
           ACTION  AND ALTERNATIVES ON
              THE WILDERNESS AREA
          MITIGATE OR MODIFY THE PROJECT
DEVELOPMENT/IMPLEMENTATION
       OF MITIGATION
                             NO  FURTHER
                          WILDERNESS AREA
                          REVIEW REQUIRED
                                                           NMUiaC SROUP IKG

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RI/FS:    If the CERCLA/SARA action may affect a wilderness
          area, EPA  should consult with  the appropriate
          agency that has jurisdiction over the area.  These
          contacts (see  Appendix H)  will  be helpful  in
          determining the most appropriate means of minimiz-
          ing adverse impacts on the wilderness area.

          In developing  the  proposed  remedial action, EPA
          should consider its impact on the wilderness area.
          The RI/FS workplan  should provide for completion
          of wilderness  area assessment  work during  the
          preparation of the RI/FS.  The  construction of
          permanent roads  and structures  should  be avoided
          to the extent  practicable and the use of motorized
          equipment  should be  minimized   to  the  extent
          practicable.   Coordination  with the  appropriate
          DOI or USDA office  will  help determine  the  most
          appropriate means  of  remediation with regard  to
          the wilderness area restrictions.

ROD:      The ROD should include a summary of EPA's  activi-
          ties  to ensure that impacts to  wilderness  areas
          are properly assessed and mitigated.

RD/RA:    EPA should  ensure  that unavoidable impacts  to a
          wilderness  area,  including  the   use of  otherwise
          restricted  roads,  structures,  or equipment, are
          mitigated during  the  implementation phase of  the
          CERCLA/SARA remedial action.
                        >  p  ?
                        . . C . £.

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   2.9 SIGNIFICANT
AGRICULTURAL LANDS

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2.9  SIGNIFICANT AGRICULTURAL LANDS

     Significant agricultural lands are defined by  the  USDA as "land
     that has the best combination of physical and chemical  character-
     istics  for  producing  food,  feed,  forage,  fiber,  and  oilseed
     crops, and  is also  available for these uses (the  land could  be
     cropland, pastureland, rangeland, forest land,  or other land, but
     not developed land or land under water)   It has the soil quali-
     ty, growing season, and  moisture supply needed to economically
     produce sustained high yields of crops when treated and managed".
     The land need not be actively farmed to be considered significant
     agricultural lands.

2.9.1     Legislative/Regulatory Framework (Potential ARARs)

               USDA - Secretary's  Memorandum No.  1827.  Supplement 1,
               Statement of  Prime  Farmland,  Range,  and Forest Land~
               June 21, 19~75

               This memorandum outlines USDA's concern for the conver-
               sion of prime agricultural  lands to other irretrievable
               uses and sets forth six policy recommendations to guide
               the agency's actions.  These policies place the USDA in
               an advocacy position concerning  preservation of prime
               farmland;  make the agency responsible for assuring that
               EISs (or functionally equivalent documents) and reviews
               adequately address  the issue of prime farmlands;  and
               place emphasis on both cooperative programs  and agency
               programs  to  increase  concern and interest  for the
               retention of prime farmlands.

               EPA -  Statement  of Policy to  Protect  Environmentally
               Significant Agricultural Lands - September 8, 1978.

               This statement presents  EPA's policy "to protect  the
               nation's  'environmentally  significant'  agricultural
               lands from irreversible conversion to uses which result
               in  its  loss as  an environmental  or  essential  food
               production resource".

               The policy lists three (3) specific  directives  for EPA
               action.

               1.   Consider  impacts  on agricultural  land during the
                    process of  developing  new or revised EPA regula-
                    tions, standards, or guidance.
                                 2.9.1

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2.   Evaluate and mitigate direct and  indirect  impacts
     on agricultural lands during the  preparation and
     review of EAs and EISs (or functionally equivalent
     documents).

3.   Consider the regional  or local significance  and
     economic value of farmlands to communities in EPA
     enforcement actions.

 arm!and Protection Policy Act  of  1981 (FPPA)  (7
 201 et seq)

The purpose of  the  FPPA  is to minimize the extent to
which federal programs  contribute  to  the  unnecessary
and irreversible conversion of farmland to non-agricul-
tural uses, and to  assure that  federal  programs  are
administered in a manner  that,  to the  extent practic-
able, will  be compatible  with state and local govern-
ments and  private programs and  policies  to  protect
farmland.

Specifically, the  FPPA  outlines several  measures to
minimize the  impacts  of  federal programs on  agricul-
tural land.

     The USDA,  in cooperation with  other departments,
     agencies, and commissions,  shall  develop criteria
     for identifying the effects of federal programs on
     the conversion of farmland to other uses.

     Federal agencies shall use the criteria establish-
     ed to  identify and  take  into account the adverse
     effects of federal  programs,  consider  alternate
     actions  and, as  appropriate,  lessen  adverse
     impacts.

     Federal  agencies  shall  develop  proposals  for
     action to  bring programs,  policies and  procedures
     into  conformity  with the  purpose of  the  FPPA
     wherever it is found to be necessary.

USDA/SCS -  Farm!and.Protection Policy  (7 CFR 658)

These final rules and regulations implement  the crite-
ria developed by  the  SCS in accordance with  and  pur-
suant to the FPPA.  The established criteria  are  to be
used for  identifying  and considering  the  effects of
federal  programs  on the  conversion  of farmlands  to
nonagriculture  uses.  Also, the  criteria  provides the
means of  identifying  technical  assistance to agencies
of local,  state,  and  federal  governments by  the  SCS.
Federal agencies are to (1) use the criteria to identi-
fy and  take into  account  the  adverse  effects of their
                  2.9.2

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               programs on the preservation of farmlands,  (2)  consider
               alternative actions, as appropriate, that could lessen
               adverse effects, and (3) ensure that their  programs,  to
               the extent practicable, are  compatible with  state  and
               local  governments and private programs and policies to
               protect farmland.

2.9.2     Environmental Review Procedures

          Figure 2-12 outlines the environmental  review procedures for
          significant agricultural lands as they apply to  CERCLA/SARA.

          IRL:      During the  scoping portion of  the  RI/FS process,
                    EPA should identify significant agricultural  lands
                    in the project area (see Appendix F-l).   The SCS
                    and the  local  State Soil  Conservation  District
                    (SSCD) should be consulted throughout  the process.
                    If there are no significant agricultural  lands in
                    the project area, no further review is required.

          RI/FS:    If there are significant agricultural  lands in the
                    project area,  the  RI/FS  must  evaluate impacts of
                    site  contamination  and remedial action alterna-
                    tives  on  agricultural  resources.  The  RI/FS
                    workplan should provide  for the completion of the
                    impact assessment  during the  preparation of  the
                    RI/FS.

                    Significant agricultural lands in the  project area
                    must  be  identified  and mapped  according to their
                    location and classification/significance.  Follow-
                    ing  identification of these   lands,  potential
                    direct and indirect impacts  to the  lands  and
                    related  agricultural  resources must be  assessed
                    and presented  in  the  RI/FS.   Additionally, meas-
                    ures  to  mitigate  adverse impacts to  significant
                    agricultural lands must be addressed in the RI/FS.
                    Consultation with  the  SCS and/or SSCD  is  recom-
                    mended  to  ensure  that impacts  to  significant
                    agricultural  lands are  properly assessed  and
                    mitigated.

                    Additionally,  if  a CERCLA/SARA  remedial  action
                    will  result in  the conversion  of  significant
                    agricultural  land  to  non-agricultural  uses,  EPA
                    must  submit a Farmland Conversion  Impact  Rating
                    Form  (Form AD  1006)  (see  Appendix F-2)  to SCS for
                    evaluation  of  the  impact of the conversion.   The
                    results of the SCS analysis should be incorporated
                    into  the  impact assessment presented in the RI/FS.
                    Clearly,  since few CERCLA/SARA remedial  actions
                    will  require the conversion from agricultural land
                    to non-agricultural uses, the  use of this form has
                    limited applicability  to CERCLA/SARA.
                                 2.9.3

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   PROCEDURES FOR  SIGNIFICANT  AGRICULTURAL LANDS REVIEW
                       UNDER CERCLA / SARA
                              FIGURE 2-12
CERCLA/SARA
PROJECT PHASE
  IRL
   YES
  RI/F5
DETERMINE WHETHER THE PROPOSED
 PROJECT MAY AFFECT  SIGNIFICANT
      AGRICULTURAL LANDS
           IDENTIFY AND DELINEATE THESE LANDS
           DETERMINE WHETHER AGRICULTURAL
               LAND WILL BE CONVERTED
              NO
                                COMPLETE/FILE FORM
                                AD 1006 WITH SC5

                                          ^   f&'-**^
                                                 1
           EVALUATE IMPACTS ON AGRICULTURAL LANDS AND RESOURCES
           MITIGATE OR MODIFY THE PROJECT
  ROD
  RD/RA
DEVELOPMENT/IMPLEMENTATION
       OF MITIGATION
                    NO FURTHER SIGNIFICANT
                      AGRICULTURAL LANDS
                       REVIEW REQUIRED
                                                            IIMUIM IROVP INC.

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ROD:      The ROD should include a summary of EPA's activi-
          ties to ensure that impacts  to  significant  agri-
          cultural land are properly assessed and mitigated.

RD/RA:    Unavoidable  impacts to  significant agricultural
          lands must be mitigated during  the  implementation
          phase of the CERCLA/SARA remedial  action.
                        2.9.4

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  NATURAL RESOURCE
TRUSTEE COORDINATION

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APPENDIX A

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                              APPENDIX A

                       SUPPORTING DOCUMENTATION
A-l  Memorandum of Applicability of Section 102(2) (c) of the National
     Environmental  Policy  Act of  1969 to  Response Actions  Under
     Section 104 of the Comprehensive  Environmental  Response,  Compen-
     sation and Liability •»"'. of 1980, September 1,  19E2.

A-2  Memorandum on  CERCLA  Remedial Actions and  NEPA/EIS Functional
     Equivalency, August 22, 1984.

A-3  Memorandum on Coordination Between Regional Superfund  Staffs and
     OFA Regional Counterparts on CERCLA Actions.

A-4  CERCLA Environmental  Issues and Requirements - EIB/ERRD Coordina-
     tion Procedure.

A-5  Memorandum on  CERCLA  Compliance with Other  Environmental  Sta-
     tutes, October 2, 1985.

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    ?    UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
    ~                 WASHINGTON, DC 20460
                       1 SEP 1981
                                                           Of
                                               UZGAUAMO CM OWCEMCNT COUf-
MEMORANDUM

SUBJECT:  Applicability of Section 102(2) (C) of the National
          Environmental Policy Act of 1969 to Response Actions
          Under Section 104 of the Comprehensive Environmental
          Response, Compensation r and Liability Act of 1980
FROMr     Robert M. Perry
          Associate Administrator and GenergjC Counsel

TOr       Rita H. Lavelle
          Assistant Administrator for Solid Waste
            and Emergency Response-


     This responds to. your- inquiry concerning the- applicability
of section 102(2)(C) of the- National Environmental Policy Act of
196? (NEPA), Pub. L. 91-190,. as amended,,. 42 U.S.C. §4332(2) (Or
to- removal and remedial actions supported: in whole or in part
with Hazardous Response Trust Fund monies under section 104
of the Comprehensive Environmental Response,- Compensation, and
Liability Act of 1980 (CERCLA) , Pub. L. 96-510, 42 U..S.C. S9604.
More specifically, you have- asked whether removal and remedial
actions are subject to the- requirement for an environmental
impact statement (EIS) imposed on federal agencies by section
102(2)(C).  For the reasons stated below, it is my opinionr
1) that the need, for expedition in carrying out removal actions
exempts such actions from the EIS requirement; and 2) that an
EIS is unnecessary for remedial actions, provided the Agency-
complies with the standards for a functional equivalent exception
to the EIS requirement.  To aid your understanding of the EIS
requirement r I have included in my response a background discus-
sion of section 102(2) (C) and the implementing regulations of
the Council on Environmental Quality (CEQ).

                            Background

     NEPA establishes a national policy requiring every federal
agency to incorporate consideration of environmental factors into
                            Al.l

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                                -2-

 if.s  decision-making  process. I/ To implement  this  policy,  section
 102(2)(C)  of NEPA directs federal agencies  "to the  fullest  extent
 possible"  to prepare a  "detailed" EIS  for all "major  Federal
 actions  significantly affecting the  quality  of the  human  environ-
 ment-"' As  specified  in  section 102(2)(C)(i)-(v),  an EIS must.
 address  the  following areas:

      (i)    the  environmental  impact  of the  proposed action,

      (ii)  any  adverse  environmental effects  which  cannot
           be- avoided should  the proposal be implemented,

      (iii) alternatives to  the proposed action,

      (iv)  the  relationship between  local short-term  uses
           of man's  environment and  the maintenance and
           enhancement  of long-term  productivity, and

      (v)   any  irreversible and irretrievable commitments
           of resources which would  be involved in  the
           proposed  action  should it be implemented..

      Section 102(2)(C)  requires the  responsible federal official,*
 prior to preparing: an EISr  to consult  with and obtain, cannneirts
 front other federal agencies having "jurisdiction  by law- or  special
 expertise  with;  respect  to any environmental  impact  involved.* lit
 additionr  the responsible official must secure comments on  the
 EZS  from. federalr  state,,  and  local agencies  "which  are authorized
 to develop and  enforce  environmental standards.*  These comments,
 together with the  EIS itself,  must 'accompany the [proposed action!
 through the  existing agency review processes."

      The CEQ  has promulgated  regulations implementing NEPA  at 40
 C.F.R. Part  1500+2/  Dnder these regulations,  a federal agency
 must normally prepare an  environmental assessment to  determine
 whether a  proposed action requires an  EIS»   40 C.-F.R. 51501.4(c).
 If the environmental assessment indicates that the  project  is not
 a- major federal action  significantly affecting the  environment,
 the  agency must issue a finding of no  significant impact  which
 briefly explains the reasons  why an  EIS is unnecessary.   40 C.F.R.
 SS1501.4(e),  1508.13.
I/Section 101(a) of NEPA, 42 O.S.C.  §4331(a),  states that "it
Ts the continuing policy of the Federal Government  .... to use all
practicable means ... to create and-maintain  conditions under
which  man  and  nature  can  exist   in productive  harmony...."
Section 101(b) of NEPAr 42 U.S.C. S4331(b), declares that "it
is the continuing responsibility of the Federal Government to
use  all  practicable  means, consistent   with  other  essential
considerations  of national  policy,  to  improve  ... Federal
plans ... [and]  programs" in  order  to  achieve  six  specific
environmental goals.

2/   Executive  Order  No» 11991  (May  24, 1977)  required CEO to
Tssue NEPA regulations binding on other federal agencies.

                             A1.2

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                               -3-

     If the agency finds, based on the environmental assessment,
that the project is a major, federal action having a significant
impact on the environment, the agency must initiate the formal
EIS process by publishing a notice of intent to prepare an EIS
in the Federal Register and by consulting with affected govern-
ment agsncias~and Indian tribes and interested persons as to the
scope of the EIS.  40 C.F.R. §51501.7, 1508.22.  According to
published CEQ guidance, large projects should require about 12
months for completion of the EIS process.3/

     Upon determining the scope of the EIS, the agency must
prepare- a draft EIS-  40 C.F.R. S1502.9(a).  The draft EIS must
specify the purpose of and need for the project, describe the
affected  environment, evaluate all  reasonable alternatives,
including the no-acti6n alternative, and discuss the short and
long—term environmental consequences of the project and alterna-
tives.  40 C.F.R. SS15Q2.13-.16.  The draft EIS must be circulated
for comment for at least 45 days among relevant federal agencies,
state and local environmental agencies, affected Indian tribes,
and. the public-  40 C.F.R. SS1503.1, 1506.10(c).

     After considering the comments received on the draft EIS,.
the agency must issue a. final EIS.  40 C.F.R. S1502.9(b).  The
agency must file the: final ELS with EPA, transmit, it ta agencies
that commented, on. the draft EIS, and. make it available to the
public.  40 C.F.R.. SS1502.19(d), 15Q6.6(f)r 1506.9.  The- final
ETS must respond to the comments submitted: on the draft ETS"
and. discuss responsible opposing views that were inadequately
addressed in the draft EIS.  40 C.F.R. S$1502.9(b), 1503.4.
Generally, the agency may not make a final decision orr the project
until at least 30 days after publication by EPA of a  notice of
the EIS in the Federal Register.  40 C.F.R. §1506.10(b)(2).4/
The final decision must be documented in the form of a public
record of decision that articulates the basis for the decision,
the alternatives considered, and any necessary mitigation measures.
40 C.F.R. S1505..2..

I.   Issue

     Whether removal actions under section 104 of CERCLA are
subject to the EIS requirement of section 102(2)(C) of NEPA.
17   See   Forty Most Asked  Questions  Concerning CEQ's National
Environmental Policy Act Regulations  (46 Fed. Reg. 18037, March
23, 1981).
     In   accordance  with 40 C.F.R. S1506.10(d) ,   the 30-day  time
period between  the notice of an EIS and  the making of a final
decision,  as well as the 45-day comment  period  for draft EISs
(40 C.F.R.  S1506.10 (c) ) , may be shortened upon  a  showing by the
federal  agency  that there are compelling reasons  of  national
policy to reduce the prescribed periods.

                            A1.3

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                               -4-

     Answer

     Removal actions are exempt from compliance- with section
102(2)(C) of NEPA due to the fundamental conflict in statutory
purpose between the EIS requirement and EPA's removal authority.
This conflict arises from the fact that it would be virtually
impossible for EPA to follow the lengthy EIS process and at the
same time expeditiously undertake removal actions.


     Discussion

     Because NEPA does not repeal by implication other federal
laws, SJ the courts have recognized that a federal agency is
exempt from complying with section 102(2)(C) of NEPA if compli-
ance would result in a ""clear and unavoidable conflict" with
the purpose or procedure of. the agency's organic statute.  Flint
Ridge Development  Company v. Scenic  River Association of
Oklahoma, 426 U.S.776, 788 (1976).This exemption has been
invoiced to bar the application of section 102(2)(C) where- it
would be impossible for an agency to adhere to the formal EIS
process and at the samer time comply with a. deadline- for decision-
making. 6/ or a directive for prompt actionr 7/ mandated by the
agency's organic statute.
     United  States v. Students  Challenging-  Regulatory  Agency
Procedures, 412 U..S. 669, 694 (1973).

!/   See, e.g. f  Flint Ridge  Development  Co- v.  Scenic  Rivers-
Association of Oklahoma, supra, (EIS requirement must yield to
30-day time limit prescribed by the Interstate Land Sales Full
Disclosure Act for approval or disapproval of property disclosure-
statement) r  National  Ass *n  of  Property  Owners v.  U.S.,  499
F.Supp.  1223, 126768 (D.Minn. 1980)(EIS unnecessary due to
conflict between EIS requirement and effective date of motorized
use restrictions under Boundary Waters Canoe Area Wilderness
Act), aff'd, 660 F.2d 1240 (8th Cir. 1981); Gulf Oil Corp. v.
Simon, 373 F.Supp» 1102r 1105 (D.D.C. 1974) I conflict between
NEPA compliance and 15-day timetable for issuance of regulations
under Emergency Petroleum Allocation Act precludes preparation
of an EIS), aff'd, 502 F.2d 1154 (Em. Ct. App. 1974),

7/   Seer e.q-., Dry Color Manufacturer's Ass'n v. Dep't of Labor,
?86 F.2d 98, 107-08 (3rdCir. 1973)(EIS not a prerequisite for
the  promulgation  of  an  emergency  temporary  standard  under
Occupational Safety and Health Act); Atlanta Gas Light Co. v.
Federal Power Comm'n, 476 F.2d 142, 150 (5th  Cir. 1973) (EIS
unnecessary prior to approval by Federal Power Commission of
emergency interim curtailment plan under the Natural Gas Act);
State of Alaska v-.  Carter, 462 F.Supp. 1155, 1161 (D. Alaska
1975}(emergencywithdrawal  under  Federal  Land  Policy  and
Management Act did not require an EIS).
                           A1.4

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                               -5-


     In my opinion, removal actions under section 104 of CERCLA
fall within the exemption for statutory conflict because of the
incompatability between EPA's removal authority and NEPA1s EIS
requirement-

     Briefly stated, removal actions involve the implementation
of short-term cleanup measures taken in response to whe release
or threatened release of hazardous substances^  See section
101(23) of CERCLA.(42 Q.S.C. §9601(23)).  The National Contingency
Plan (NCP) divides removal actions into two categories - immediate
removals and planned removals.  Immediate removals are appropriate
where- action within hours or days may be- necessary to prevent
significant harm to human health or the environment (NCP, §300.65).
Planned removals, on the other hand, are appropriate where an
expedited, although not. necessarily immediate, response may be
required  (NCP, §300..67) _  Both immediate and planned removals
may- not continue beyond 6 months or after the. expenditure of $1
millions unless there is a finding that an emergency exists
pursuant to the requirements of section 104(c)(l) of CERCLA*

     la view of the focus of immediate and planned removals on
emergency and near emergency situations, it is evident that EPA's
removal, authority would be seriously undermined if the Agency,
as a pre-condition to initiating removal actions, were required
to complete, the formal EIS process prescribed by the CEQ regula-
tions.-  Such a requirement would make it impossible for the Agency
to undertake removal actions with the requisite degree of speed
due to the time-consuming nature of the CEQ procedures, and would
raise the possibility of further delays from litigation .challeng-
ing the adequacy of EISs.8/  Under these circumstances, compliance
with section 102(2)(C) of NEPA would create an irreconcilable
conflict  in statutory authority so as to relieve the agency of
any duty  to file an EIS.9/
8/   see Natural Resources Defense Council, Inc. v. Nuclear
liTeoula"torv Comm' n, 647 F.2d 1345, 1385-86  (D.C. Cir. 1981)
(Robinson, J.r concurring)(EIS not required due to conflict
between the timetable for export licensing by the Nuclear
Regulatory Commission under the Nuclear Non-Proliferation Act
and the time necessary to prepare an EIS and defend against
possible NEPA actions).  See also Portland Cement Ass'n v.
Ruckelshaus, 486 F.2d 375, 38(F!T (D.C. Cir» 1973) (noting
existence of a conflict between the EIS process and time
constraints of the Clean Air Act).

9/   The conclusion that the exemption for statutory conflict
"applies to planned removals is based on the assumption that planned
removals will be undertaken without extensive, prior investigative
studies such as those authorized under section 104(b) of CERCLA.
For any planned removals that are preceded by such studies, it
should be emphasized that the case for applying the exemption is
not as strong.  To the degree that extensive, prior investigative
(Footnote continued)
                             A1.5

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                               — o—
     This conclusion is consistent with the- legislative history
of CERCLA, which reflects a congressional awareness that the
expedited character of removal actions would justify noncorapli-
iance with section 102(2)(C) of NEPA.  Congress contemplated
that: removal actions would proceed without a prolonged environ-
mental review and that they would be treated for purposes of
the EIS requirement in a manner similar to cleanup actions under
section 311.of the Clean Water Act, 33 U.S.C. §1321, which are
explicitly exempted .rom the EIS process by section 511(c)(l)
of the Act, 33 CT.S.C. S137.U c) (1) . _LO/ As stated in the Senate
Report, accompanying S .. 1480 ; 11/


            The intent of section 3(c)(l)  is to authorize
       removal with a minimum, of delay in order to assure
       that injury to the- public health, welfare and the
       environment are prevented or minimized and mitigated.
       This provision is similar to section 311 of the Clean
       Water Act.  Section 511(c) of the Clean Water Act
       defines section 311 actions of the Administrator as
       not constituting a major Federal action significantly
       affecting the quality of the human environment within
       the meaning of the National Environmental Policy Act
       of 1969.  Removal actions may be emergency actions
       within the meaning of. the National Environmental
       Policy Act of 1969.  S. Rep. No. 848f 96th Cong. r 2d
       Sess. 61 (1980.). 12/
9_/  (Continued from previous page)
studies provide EPA with substantial lead time to evaluate
alternative courses: of action for planned removals, a court
might find that the time constraints necessary to invoke the
exemption are not present-  In that event, the only argument
potentially available to EPA in support of an EIS exemption
would be that the studies constitute the "functional equivalent"
of an EIS (see infra pp. 7-11).

10/   Section 511(c)(l) of the Clean  Water Act provides that
the EIS requirement does not apply to EPA actions under the
Clean Water Act, except for the issuance of new source National
Pollutant Discharge Elimination System (NPDES) permits under
section 402 of the Act, 33 O.S.C. S1342, and the award of
wastewater treatment construction grants under section 201 of
the Act, 33 O.S.C. S1281.

ll/   S. 1480 was the Senate version of the Superfund legislation.
TCIthough the bill was revised considerably to produce CERCLA as
enacted, it did contain a provision for response actions similar
to the response authority found in section 104 of CERCLA.

12/  The statement in the Senate Report that removal actions may
"constitute emergency actions within the meaning of NEPA is possibly
a reference to 40 C.F.R..51506.11 of the CEQ regulations, which
authorizes a federal agancy to forego NEPA review where action
is necessary to control the immediate impacts of an emergency.
                            A1.6

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                               -7-
     Tn sum, given the antithesis between the formal SIS process
and the congressionally—recognized need for dispatch in the
conduct of removal actions, there is little question but that
removal actions are exempt from section 102(2)(C) of NEPA on the
ground of statutory conflict.13/

     II.  Issue

     Whether remedial actions under section 104 of CERCLA are
subject to tr.n.« EIS requirement of section 102(2)(C) of NEPA.

          Answer

     CERCLA requires remedial actions to include a thorough
review of environmental factors.  If EPA conducts .this review in
accordance with procedures set forth in the NCP and incorporates
public participation in the decision-making process, it is likely
that remedial actions will qualify for the- functional equivalent
exception to the EIS requirement,

          Discussion-

     Remedial actions  under  section-  104 of  CERCLA  involve-
long—tentr actions consistent with a permanent remedy to prevent
or minimize- the release of hazardous substances.  See- section
101(24) of CERCLA (42 U.S.C. $9601(24)).  In contrast to removal
actions, remedial actions normally address situations that do
not require an immediate or expedited response and therefore
allow for the time necessary to conduct detailed planning and
evaluation.

      Because of" the time available for remedial actions, it
is unlikely that application of section 102(2)(C) of NEPA would
severely disrupt the remedial action process so as to justify
an EIS exemption on the ground of statutory conflict.  Neverthe-
less, remedial actions potentially qualify for another exception
to the EIS requirement developed by courts for situations where
an agency achieves NEPA.'s objective of full disclosure of environ-
mental effects through means comparable to an EIS.  This exemption,
TJ?Notwithstanding the applicability of the statutory conflict
exemption, the Agency has an obligation under CERCLA to assess,
short of an elaborate, ElS-type analysis, the potential environ-
mental impacts of removal actions*  Clearly, an assessment of
this sort cannot be extensive for immediate removals due to
their emergency orientation.  However, because planned removals
proceed on a relatively less urgent basis, it is incumbent upon
EPA to undertake such an assessment to a greater degree when
conducting planned removals.
                           AT.7

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                               -8-

 commonly  known  as  the  "functional equivalent" exception, !_£/ has
 been  applied  to specific  regulatory activities of EPA under the
 Clean Air Act,  42  U.S.C.  §§7401 et sea. ,  IS/ the Federal
 Insecticide,  Fungicide, and Rodenticide  Act  (FIFRA), 7 U.S..C.
 §§136 et  seq.,  16/ the Marine Protection,  Research and Sanctuaries
 Act of 1972,  33 U.S.C. §§1401 e_t s&£. , 17/ and the Toxic Substances
 Control Act,  15 U.S.C. §§2601 et seq.l8/~
14/  As  a  threshold matter,  it should be noted  that the legisla-
tTve history  of CERCLA  does  not bar  the  application  of a
functional equivalent exception  to remedial actions.  The Senate
Report accompanying S. 1480  states that remedial actions, by
virtue of  their relatively long  lead time,  and allowance for
planning,  would require a written assessment of alternatives and
that in  some  circumstances,  preparation of an EIS might be deemed
necessary.  See S* Rep. No.  848, 96th Cong., 2d Sess 61 (1980);
note 11, supra-  This statement, however,  should not be viewed
as establishing a congressional  intent that the formal EIS
process  be the sole vehicle  for  analyzing  the environmental
impacts  of large scale remedial  actions.  Properly interpreted,
the statement reflects Congress1 overriding concern that the
environmental consequences of remedial actions  be fully explored*
Application of the functional equivalent exception does not
violate  this  concern, since  the  exception can only be invoked
where the  substance of section 102(2)(C) of. NEPA has been
fulfilled*

15/  See,  e.g.,. Amoco Oil Co. v. EPA, 501 F*2d  722, 749-50 (D*C.
cTr* 1974)(issuance of fuel  additive regulations); Essex Chemical
Corp* v. Ruckelshaus, 486 F*2d 427, 431 (D.C. Cir* 1973)(promu-Lga—
tion of  new source performance standards), cert, denied, 41S CT*S»
969 (1974); Portland Cement  Ass'n v. Ruckelshaus,  486 F.2d 375,
384-87 (D.C*  Cir. 1973) (promulgation of new. source performance-
standards)*   In 1974r Congress enacted the Energy Supply and
Environmental Coordination Act,  Pub* L. 93-319, which explicitly
exempted from section 102(2)(C)  of NEPA actions taken by the
Administrator under the Clean Air Act (see 15 0*S.C* $793(c)(l))*

16/  See State of Wyoming v. Hathaway,  525 F.2d 66, 72-73 (10th
CTr. 1975)(cancellation and  suspension of economic poisons),  cert.
denied,  425 U.S. 906 (1976); Environmental Defense Fund, Inc. v.
EPA, 48fr F.2d 1247r 1254-57  (D.C* Cir.  1973)(cancellation of
pesticide   registration);  Environmental Defense Fund,  Inc. v.
Blum, 458  F.Supp. 650, 661-62 (D.D.C. 1978)(approval of exemption
from pesticide registration).

17 /  See State of Maryland v. Train, 415 F.Supp. 116,  121-22
(D.  Md. 1976)(issuance of ocean dumping permit),  rev'd on other
grounds, 556  F.2d 559 (4th Cir.  1977)*

18/  See Warren County v. State  of North Carolina, 528  F.Supp.
276, 286-87 (E.D. N.C. 1981)(approval of PCS disposal site);
Tvitty v.   State of North Carolina, 527 F.Supp* 778, 783 (E.D.
N.C. 1981)(approval of PCB disposal site).

                            A1.8

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                               -9-
     Tn general/ under the functional equivalent exception, an
agency with expertise in environmental matters is not obligated
to comply with the formal EIS process prior to taking a particu-
lar action 19/ if two criteria are met.  First, the agency's
authorising statute must provide "substantive and procedural
standards [that]  ensure  full and  adequate  consideration of
environmental  issues."   Environmental Defense Fund, Inc. v.
EPA, 489 F.2d 1247, 1257 (D.C, Cir. 1973).,20/ Second, the agency
must afford an opportunity for public participation in the-
evaluation of environmental factors prior to arriving at a final
decision.21/
19/While the courts' have traditionally applied the functional
equivalent exception to regulatory actions, there is nothing
to prevent the- exception from applying to site-specific, non-
regulatory activities such as remedial actions, absent a specific
statutory directive that the activities comply with the E.IS
requirement and  provided  the  activities  otherwise  meet the
judicially formulated standards for the exception*  Certainly,
an extension of the exception to remedial actions would not
constitute a radical departure from existing case law, given the
willingness of courts to invoice the exception for regulatory
actions having- site—specific impacts.  See  Warren County v.
State of North Carolina,,  supra note 18?  Twitty v» State of .
North Carolina,  supra note 18;  State of  Maryland xr> Train,.
supra note 17..

20/  Tn judging the adequacy of an agencyfs consideration of
environmental impacts, the courts have often focused on whether
the agency examined the five core issues of an EIS set forth in
section 102(2)(C)(i)-(v) of NEPA.  See  Environmental  Defense
Fund, Inc. v. EPA, supra, 489 F.2d at 1256; Environmental Defense
Fund, Inc. v. Blum, supra, 458 F.Supp. at 661.  They have also
indicated, howeverr that the functional equivalent exceptioa
does not necessarily require an agency to separately address
each element of an EIS analysis, especially where the agency's
authorizing statute provides for an orderly review of diverse
environmental factors.  See Pacific Legal Foundation v. Andrus,
657 F.2d 829> 834 n.4 (6th~"Cir. 1981) ; Amoco Oil Co. v. EPA,
supra, 501 F.2d at 750? Warren County v. State of North Carolina,
supra, 528 F^Supp. at 287.

21/  See, e.g., Portland Cement Asa'n v. Ruckelshaus, supra, 486
7T2d at 386; Environmental Defense Fund, Inc. v. EPA, supra, 489
F.2d at 1256; Warren County v. State of North Carolina, supra,
528 F. Supp- at 287; State of Maryland v. Train, supra, 415 F.
Supp. at 122.  See also Weinberger v. Catholic Action of Hawaii/
Peace Education Project-,     U.S. 	, 102 S. Ct. 197, 201  (1981)
Titating  that one objective  of section  102(2)(C)  of NEPA is
to inform the public that environmental concerns have been
considered).

                             A1.9

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                               -10-


     Remedial actions appear to satisfy the first criterion for
a functional equivalent exception because of the mandate for
environmental assessment contained in section 104 of CERCLA
and the procedural safeguards developed by EPA for the remedial
planning process.  In this context, section 104(a)(l) of CERCLA
specifically directs that remedial actions be "necessary to
protect public he..lch or welfare or the environment-"  As suchr
it establishes a substantive standard of environmental protection
that requires remedial actions to include a thorough investigation
of environmental questions._22/ Moreover, this requirement is
iuyyl«iuenced by procedures set forth in the NCP pursuant to
section 105 of CERCLA, 42 O.S.C. S9605,_23/ which establish a
process for conducting an analysis during the planning of remedial
actions that is basically similar to the evaluation underlying
an EIS.2_4/ To the extent that these procedures are followed, it
is likely that a court would view remedial actions as embodying
the type of environmental assessment needed to qualify for the
exception.

     It must be recognized, however, that CERCLA does not pre-
scribe requirements for public involvement in the remedial planning
process that would enable remedial actions to meet the public
participation- criterion for a functional equivalent exception.
227See Environmental Defense Fund, Inc. v. EPA/ supra, 489 F
at 1256 (language in FIFRA requiring deregistration.of pesticides
that would be injurious to man or the environment creates- substan-
tive- standard mandating consideration of environmental effects).

23'/  Section 105(3) of CERCLA requires EPA to publish a revised
National Contingency Plan that includes methods and criteria for
determining the appropriate extent of remedial actions*

24/  Section 300.68 of the NCP contains procedures which provide
forr

          1)   the identification of the appropriate type of
     remedy based on a consideration of factors that include
     environmental effects and welfare- concerns (§300.68(e) ) ;

          2)   the development of feasible alternatives,
     including consideration of the no-action alternative
     where action may cause a greater environmental or
     health danger than no action (S300.68(g)); and

          3)   the elimination of alternatives that would have
     significant adverse environmental impacts (5300.68(h)(2)).

Ir. cr.?h seizing the consideration of alternatives and their
environmental impacts, these procedures are similar to the
analytical process mandated by the CEQ regulationsr 40 C-F.R.
$1502.14.
                            A1.10

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                               -11-


Such requirements are also absent from the NCP, which merely
recommends that remedial actions, to the extent practicable, be
undertaken in a manner/ sensitive to local community concerns in
accordance  with  applicable  guidance*  (NCP, §300.61(c)(3) ).
Accordingly, in order for the functional equivalent exception
to apply, it will be necessary for remedial actions to incorporate
procedures that afford the public a meaningful opportunity to
comment on environmental issues before the final selection of a
remedial alternative.  While these procedures need not involve
the holding of a formal public hearing,j25/ they should at least
entail other, less formal mechanisms 'for.soliciting public input.

     In conclusion, it must be stressed, that remedial actions do
not automatically qualify for the functional equivalent exception
to section 102(2)(C) of NEPA-  Rather, the availability of the
exception is contingent upon structuring remedial actions to
satisfy the requirements for environmental assessment and public
participation underlying the exception*  If EPA complies with the
procedures for environmental evaluation contained in the NCP and
provides for public comment during the decision-making process,
a strong argument can be made that the exception is applicable*.
However, if these precautions are not taken, there is a consider-
able; risk that a court will find remedial actions to be subject
to the EIS requirement*


cct  Anne M. Gorsuch (A—100)
     Regional Administrators  (I-X)
     Regional Counsels  (I-X)
     Paul C* Cahill (A-104)
"2S/   Although  the provision of"  public hearings has undoubtedly
Influenced courts in granting functional equivalent exceptions,
e.g., Amoco Oil Co. v. EPA, supra, SOI F»2d at 750;-Environmental
Defense Fund, Inc. v. EPA, supra, 489 F..2d at 1255, such hearings
should not be viewed as a critical, element of the exception.  This
is because NEPA itself provides no right to a public hearing.  See
Como-Falcon Community Coalition, Inc. v. United States Dept. of
of Labor, 609 F»2d 342,  344-45  (8th Cir. 1979),  cert,  denied,
446 U.S. 936 (1980); Cross-Sound Services, Inc. v. United States,
573 F..2d 725, 731-32 (2d Cir. 1978); State of Wyoming v. Hathaway:,
supra, 525 F.2d at 72 n»7»
                            Al.ll

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                              V !C
                              -
MEMORANDUM

SUBJECT:  CERCLA Remedial Actions and NEPA/EIS Functional Equivalency

FROM:     Josephine S. Cooper, Assistant Administrator^
            for External Affairs                  (
                                                  i •' "T*"
          Lee Thomas, Assistant Administrator c^Js-AjH
            for Solid Waste and Emergency Response          e£p «c 1004

TO:       Regional Administrators


     The Office of Emergency and Remedial Response 1s currently developin-f
guidance to assure that remedial actions under CERCLA fully comply with the
intent of Section 102(2)(C) of the National Environmental Policy Act (NEPA)
as well as other related environmental statutes.  This guidance will be
reflected in the Guidance Document For Feasibility Studies Under CERCLA.

     For background, we should Indicate that EPA is required to prepare
environmental impact statements (EISs) pursuant to Section 102(2)(C) of
NEPA for only a limited number of programs.  The reviews that are to be
provided for remedial actions under CERCLA are considered to be function-
ally equivalent to the EIS requirements of Section 102(2)(C), Involving as
they do a consideration of environmental consequences accompanied by public
participation.

     As the national program managers for CERCLA and NEPA compliance, we
believe that functional equivalency can be achieved most efficiently and
effectively through the close working relationship between our respective
offices at Headquarters and a concomitant sharing of expertise at the
Regional level.  While Regional NEPA compliance resources have historically
been directed towards EIS preparation for construction grants and new
source NPOES permits, the reviews performed have of necessity been inter-
disciplinary in nature.  In addition, NEPA compliance staff are expected
to be familiar with other environmental requirements (e.g., the executive
orders on floodplains and wetlands, etc.) that apply to EPA programs.
Therefore, as reflected in OEA/OFA FY 85-86 Operating Guidance, Regional
NEPA compliance staff are expected to be available to assist other Regional
programs in assuring NEPA compliance and functional equivalency.
                               A2.1

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     We urge you to utilize the experience and expertise that exists in
your Regional NEPA compliance program to assist CERCLA staff in ensuring
functional equivalency and full review concerning other environmental
statutes.  We believe that such a cooperative effort will be particularly
useful in the consideration of natural resource and environmental values,
which are increasingly becoming an Issue in remedial actions.

     Please address any inquiries you may have concerning this to Bill
Hedeman (OERR) or Allan Hlrsch (OFA).
                                  A2.2

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\        UNITED STATES ENVIRONMENTAL
?                        WASHINGTON. D.C.  20460               •l-

                                  2 0 884          QH KOV -2
                                                                OFFICE
MEMORANDUM

SUBJECT:  Coordination between Regional Superfund Staffs and
          OFA Regional Counterparts on CERCLA Actions
FROM:     Will 1 am N. Hedeman. Director  "*xAO
          Office of Emergency and Remedial. Response

          Allan Hlrsch. Director              ' '
          Office of Federal Act1

TO:       See Addressees


     The purpose of this memorandum 1s to encourage coordination between
 ihe Regional Superfund staffs and Office of Federal Activities (OFA) Regional
counterparts 1n carrying out CERCLA actions.  It 1s a follow-up to the
August  22, 1984 memorandum (attached) sent from Josephine Cooper, Assistant
Administrator for External Affairs, and Lee Thomas, Assistant Administrator
for Solid Haste and Emergency Response, to the Regional Administrators
emphasizing Headquarters  support for such an arrangement*

     In carrying out Superfund remedial actions, 1t 1s EPA's policy to
provide opportunity for public review and to follow procedures that are
functionally equivalent to those afforded by the National Environmental
Policy  Act (NEPA).  It 1s also our policy to comply substantive1y with
other environmental statutes and Executive Orders such as the Endangered
Species Act, National Historic Preservation Act, Floodplaln Management
Executive Order (E011988) and Protection of Wetlands Executive Order
 (E011990) where feasible and appropriate.  OFA's Regional counterparts
have the expertise to assist the Superfund staffs In meeting these
requirements.

     Another area 1n which OFA Regional counterparts Interrelate with the
Superfund program 1s 1n the review of environmental Impact statements (EISs)
prepared by other federal agencies on proposed actions that would have an
affect  on the environment.  In some drcums'tances, these proposed federal
actions directly relate to remedial actions on federal facilities Involving
hazardous substances, pollutants, and contaminants, and should be reviewed
by Regional Superfund staff to ensure consistency 1n Agency positions.
These EISs also can provide a valuable source of Information to Regional
Superfund staff on certain types of remedial actions being contemplated that
relate  to similar circumstances 1n the Superfund program.
                                    A3.1

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     We would like to encourage development  of a  close working  relationship
between these staffs.  This would be of benefit 1n Identifying  sites
where compliance with these statutes and Executive Orders would apply;
In ueteruiimiiy *iidl procedures and analyses  should be carried out;  In
determining the Alternatives and Mitigating  Measures  that should be
considered; and In sharing Information developed  by other federal agencies
In the EIS process.

     We urge you to begin exploring mechanisms to Implement  such an
arrangement.  One way to begin 1s to notify  OFA Regional counterparts
early 1n the fiscal year about sites In the  Regions which will  be targeted
for CERCLA action.  This can be accomplished through  three mechanisms
which are part of the framework of the Superfund  planning process:

         -  Review of the National Prlorltes List
            (NPL), which 1s a list of over 400
            hazardous waste sites targeted for
            clean-up by Federal and State governments
            under CERCLA.  Sites on the 11st are
            candidates for remedial or enforcement
            action.

         -  Review of the Site Management Plan (SMP),
            which provides estimated dates on when
            clean-up activities will begin on sites
            listed on the NPL, proposed for  Inclusion
            on the NPL, or listed as Dloxln  Tier  1 or 2
            sites.N

         -' Review of the Superfund Comprehensive Accomplishment
            Plan (SCAP) which 1s a suonary of all sites-related
            activity 1n a Region planned for the  upcoming fiscal
            year.  For removal activities, the annual plan sets
            targets for removals at NPL and  non-NPL sites.   Remedial,
            enforcement and community relations activities are
            Identified on the plan by site name,  State,  activity
            type, expected start date, estimated cost, designation
            of the lead organization and other relevant  Information.

     We  encourage you to support this effort.  Later 1n the fiscal
year, we anticipate surveying the Regions to determine how this
coordination 1s working and methods to Improve program Implementation.
Should you have any questions on this matter please contact  Anne Miller
of the Office of Federal Activities (382-7063) or Tom Sheckells of  the
Office of Emergency and Remedial Response (382-2339).
Attachment
                                       A3.2

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         CERCLA Environmental Issues and  Requirements

               EIB/ERRD Coordination Procedure
I.  Applicability

    This procedure is intended to establish general guidelines
    for coordination between the Emergency and Remedial Response
    Division (ERRD) and the Environmental Impacts Branch (EIB)
    on environmental issues relating to CERCLA remedial actions.
    Removal activities are not a subject of these procedures.

    Moreover, the purpose of this coordination will be to
    determine some of the federal environmental requirements
    applicable to particular CERCLA projects.  These requirements
    can be specifically mandated, such as those contained
    in the National Historic Preservation Act, Coastal Zone
    Management Act, Wild and Scenic Rivers Act, Endangered
    Species Act, and Executive Orders on -Wetlands and
    Floodplains; or they can be generic requirements under
    the National Environmental Policy Act, relating to
    hydrology, geology, noise, biology, socioeconomics,
    land use, and energy.

    Specific federal environmental standards or criteria
    such as those relating to water quality, air quality,
    drinking water, and permissible chemical exposure
    levels will not be a subject of this coordination.
    Information on environmental standards should be obtained
    by the CERCLA project officer from the appropriate
    program area within EPA or an appropriate federal
    agency.

II.  Early Scoping of Environmental Issues

     Fund - Financed Remedial Actions

     EPA project managers will provide EIB with a copy of the
     clearinghouse letter to the State Agency designated as
     intergovernmental liaison pursuant to Executive Order
     12372.  This letter contains general project information,
     including site location, description and history;
     therefore, it should provide an adequate basis for a
     preliminary determination of potential environmental
     concerns.  For State-lead projects, a copy of this
     letter should be secured for EIB through the project
     managerss counterpart in the State.  Turnaround time
     for review and comments: 30 days.
                              A4.1

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                            -2-
     Responsible Party Remedial Actions


     EPA project managers will provide EIB with a copy of
     the Administrative Order issued to the potentially responsible
     party(s) for a particular remedial action.  The Order
     will normally contain enough detailed information on
     site characteristics for EIB to make a preliminary
     determination of potential environmental concerns.
     Turnaround time for review and comments: 30 days.

     The purpose of early scoping of environmental issues is to
     provide EIB with sufficient information in order to
     identify potential conflicts with federal environ-
     mental regulatory requirements (as outlined under
     "Applicability") and potential negative impacts to the
     environment as a result of the remedial process,
     whether it is carried out by contractors to EPA, a
     State, or a potentially responsible party.  Identification
     of these issues in the above manner will allow time
     for appropriate adjustments in the final project workplan
     (An EIB contact should be designated to whom the above
     materials can be sent.)

III.  Coordination During Remedial Investigation

     CERCLA project managers will coordinate with EIB on an
     as-needed basis during the performance of the remedial
     investigation on significant environmental issues identified
     during the scoping process.  Also, project managers will
     alert EIB to any new developments which may have adverse
     environmental consequences in order to properly assess the
     development and take whatever action that the project manager,
     in consultation with EIB, believes is appropriate.

     The purpose of this coordination during the remedial
     investigation is to ensure that any data-gathering needs
     relating to significant environmental issues are properly
     attended to.
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IV.  Coordination Daring Feasibility Study

     CERCLA project managers will coordinate with EIB on an as-
     needed basis during the initial screening of alternatives,
     followed by the detailed analysis of alternatives conducted
     in the feasibility study.  Coordination should usually
     focus or. environmental issues that have surfaced during
     earlier project stages.  The project manager may request
     EIB participation in the review of the environmental
     assessment performed during the detailed analysis of alter-
     natives if he feels that there are environmental issues
     involved e.g. floodplains or wetlands assessments, which
     require the benefit of EIB's experience and expertise.

     The purpose of this coordination during the feasibility
     study is to ensure that the project manager properly
     assesses the environmental impacts of remedial alternatives,
     develops appropriate mitigation measures to offset
     environmental impacts associated with the selected
     alternative, and fulfills federal environmental regu-
     latory requirements specific to the project.
References:  Coordination between Regional Superfund and OFA
             Regional Counterparts, on CERCLA Actions (Memo from
             Hedeman/Hirsch dated 10/29/84); Applicability of
             Section 102(2)(c) of NEPA to Response Actions Under
             Section 104 of CERCLA (Memo from OGC to Lavelle
             dated 9/1/82); Appendix to revised National
             Contigency Plan (Memo from L. Thomas to R.A.s);
             Draft Guidance Document for Feasibililty Studies
             Under CERCLA; Implementation of Procedures on the
             National Environmental Policy Act (11/6/79 regulations;
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                       EPA MEMORANDUM ON CERCLA COMPLIANCE WITH
                                 OTHER ENVIRONMENTAL STATUTES

                               (Published at 50 FR 47946, November 20, 1985)
Memorandum
Subject: CERCLA Compliance With
    Other Environmental Statutes.
From: ]. Winston Porter. Assistant
    Administrator.
To: Regional Administrator, Regions I-
    X.
  This memorandum sets forth the
Environmental Protection Agency [EPA]
policy on the applicability of the
standards, criteria, advisories, and
guidance of other State and Federal
environmental and public health
statutes to actions taken pursuant to
sections 104 and 106 of the
Comprehensive Environmental
Response, Compensation,  and Liability
Act of 1980 (CERCLA). This policy
addresses considerations for on-site and
off-site actions taken under CERCLA.

I. Discussion
  The National Oil and Hazardous
Substances Pollution Contingency Plan
(NCP) establishes the process for
determining appropriate removal and/or
remedial actions at Superfund sites. In
th<; course of this process, EPA will give
primary consideration to the selection of
those response  actions that are effective
in preventing or, where prevention is not
practicable, minimizing the release of
hazardous substances so that they do
not migrate to cause substantial danger
to present or future public health,
welfare, or the environment. As a
general rule, this can be accomplished
by pursuing remedies that attain or
exceed the requirements of applicable or
relevant and appropriate Federal public
health or environmental laws. However,
because of unique circumstances at
particular sites, there may be
alternatives that do not meet the
standards of other laws, but that still
provide protection of public health and
welfare, and the environment.
  Although response actions that
prevent hazardous substances from
migrating into the environment are seen
as the most effective under CERCLA,
actions which minimize migration must
also be considered since CERCLA
primarily addresses inadequate post
disposal practices and resulting unique
site conditions. At certain sites, it may
be technically impractical,
environmentally unacceptable, or
excessively costly to implement a
response action that prevents migration
or restores the site to its original,
uncontaminated condition.

II. Policy
  Section 104 of CERCLA requires that
off-site remedial actions, storage,
destruction treatment or secure
disposition, be in compliance with
subtitle C of the Resource Conservation
and Recovery Act (RCRA). CERCLA is
silent, however, concerning the
requirements of other laws with regard
to all other response actions taken
pursuant to sections 104 and 106.
  As a general rule, the Agency's policy
is to attain or exceed applicable or
relevant and appropriate Federal
environmental and public health
requirements in CERCLA response
actions unless one of the specifically
enumerated situations is present. Where
such a situation is present and a
requirement is not followed, the Agency
must document and explain the reasons
in the decision documents. Other
Federal criteria, advisories, guidance,
and State standards also will be
considered and may be used in
developing remedial alternatives, with
adjustments for site specific
circumstances. If EPA does not use. or
uses and adjusts any pertinent
standards in this category, EPA will
fully document the reasons why in the
decision documents.

A. On-site Response Actions
  (1) For removal actions, EPA's policy
is to pursue actions that will meet
applicable or relevant and appropriate
requirements of other Federal
environmental and public health laws to
the maximum extent practicable,
considering the exigencies of the
situation.
  (2) For remedial actions, EPA's policy
is to pursue remedies that attain or
exceed applicable or relevant and
appropriate requirements of other
Federal public health and environmental
laws, unless the specific circumstances
identified below exist.
  CERCLA procedural and
administrative requirements will be
modified to provide safeguards similar
to those provided under other laws.
Application for and receipt of permits is
not required for on-site response actions
taken under the Fund-financed or
enforcement authorities of CERCLA.

B. Off-Site Response Actions

  CERCLA removal and remedial   '
activities  that involve the removal of
hazardous substances from a CERCLA
site to off-site facilities for proper
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storage, treatment or disposal must be in
compliance with all applicable or
relevant and appropriate requirements
of Federal environmental and public
health laws.
  Off-site facilities that are used for
storage, treatment, or disposal of
Superfund wastes must have all
appropriate permits or authorizations.
  If the facility or process that is being
considered for receipt of the Superfund
wastes has not been permitted or
authorized, the State or responsible
party will be required to obtain all
appropriate permits. Furthermore, as
stated in  the Agency's off-site policy
memorandum, "Procedures for Planning
and Implementing Off-Site Response
Actions," May 6,1985, barring an
exeption  in that memorandum, no
CERCLA hazardous substances shall be
taken off-site to a RCRA facility if the
receiving Region's Administrator
determines that the facility has
significant RCRA violations or other
environmental conditions that affect the
satisfactory operation of the facility. A
State's  responsibility for obtaining any
appropriate Federal, State or local
permits (e.g., RCRA, TSCA. NPDES, U1C,
Clean Air, etc.) will be specified in a
contract or cooperative agreement wilh
the State  as part of its assurances
required under section 104(c) of
CERCLA.

III. Other Laws or Guidance That May
Be  Used To Determine the Appropriate
Extent of Response Actions

  Federal and State environmental and
public health requirements, criteria,
guidance  and advisories fall into two
categories:
  • Federal requirements  that are
potetially applicable or relevant and
appropriate,
  • Other Federal criteria, advisories,
guidance, and State  standards to be
considered.
An initial list  of both categories is
attached.
A. Applicable orHelevant and
Appropriate Federal Requirements
  "Applicable" requirements are those
Federal requirements that would be
legally  applicable, whether directly, or
as incorporated by a federally
authorized State program, if the
response actions were not undertaken
pursuant to CERCLA section 104 or 106.
  "Relevant and Appropriate"
requirements are those Federal
requirements that, while not
"applicable," are designed to apply to
problems sufficiently similar to those
encountered at CERCLA sites that their
application is appropriate. Requirements
may be relevant and appropriate if they
would be " ,jplicable" but for
jurisdictional restrict"""" associated
with the requirement.
  For example, the RCRA 40 CFR Part
264 Subpart F Ground-Water Protection
Standards would be applicable to the
management or cleanup of hazardous
xvastes in ground water from hazardous
waste management facilities if such
actions were not taken pursuant to
CERCLA section 104 or 106. Yet RCRA
Subtitle C regulations, while not
applicable to hazardous wastes •
disposed of prior to the November 19,
1980, effective date of those regulations,
could be relevant and appropriate to
CERCLA response actions regardless of
when the wastes were disposed of or
managed.

B. Other Federal Criteria, Advisories,
Guidance and State Standards To Be
Considered
  This category includes other
standards, criteria, advisories and
guidance that may be useful in
developing Superfund remedies. These
criteria, advisories ard guidance were
developed by EPA, other Federal
agencies and the States. The concepts
and data underlying these requirements
may be used at Superfund sites in an
appropriate way.
IV. Implementation

A. Removal Actions
  For both on- and off-site Fund-
financed removal actions, the lead
agency should consult with the Regional
Response Team within the framework of
the Regional Contingency Plan to
determine the most effective  action.
(l)On-site
  For on-site removal actions, the lead
agency shall, as appropriate, attempt to
attain or exceed all Federal applicable
or relevant and appropriate public
health and environmental requirements.
 The lead agency also shall, as
 appropriate, consider other Federal
 criteria, guidance, and advisories as
 well as State standards in formulating
 the removal action. However, because
 removal actions often involve situations
 requiring expeditious action to protect
 public health, welfare, or the
 environment, it may not always be
 feasible to fully meet them. In those
 circumstances where they cannot be
 attained, the decision iocuments, OSC
 reports, or other documents should
 specify the reasons.
 (2) Off-site
   Off-site facilities  that are used for
 storage, treatment, or disposal of
 Superfund wastes must have all
 appropriate permits or authorizations
 and, barring an exception in the off-site
 policy, no hazardous substance shall be
 taken off-site to an RCRA facility if the
 Region determines that the facility has
 significant RCRA violations or other
 environmental conditions that affect the
 satisfactory operation of the facility.

 B. Remedial Actions
 1. Presentation and Analysis of
 Alternatives
   To the extent that it is both possible
 and appropriate, at least one remedial
 alternative shall be developed as part of
 the feasibility study (FS) in each of the
 following categories:
   (a) Alternatives for treatment or
 disposal in an off-site facility, as
 appropriate;'
   (b) Alternatives that attain applicable
 or relevant and appropriate Federal
 public health and environmental
 requirements;
   (c) As appropriate, alternatives that
 exceed applicable or relevant and
 appropriate public health and
 environmental requirements;2
  'Thcsr alternatives must be consistent with
ETA's May 6.1965 off-site policy. "Procedures fur
Planning and Implementing Off-Site Response
Actions." In some cases, off-site disposal or
treatment may not be feasible and this alternative
may be eliminated during initial screening of
alternatives. The decision documents should reflect
this screening
  *Foi instance, the Agency might choose
incineration as on alternative that exceeds what
would be required by applicable' standards because
il is a more permanent and reliable solution than
RCRA closure standards for land disposal facilities.
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  (d) As appropriate, alternatives that
do not attain applicable or relevant and
appropriate public health and
environmental requirements but will
reduce the likelihood of present or future
threat from the hazardous substances
and that provide significant protection
to public health and welfare and
environment. This must include an
alternative that closely approaches the
level of protection provided by the
applicable or relevant and appropriate
requirements;
  (e) A no action alternative.

2. Selection of Remedy

  The decisionmaker will consider all of
the alternatives arrayed in the
feasibility study and will give primary
consideration to remedies that attain or
exceed applicable or relevant and
appropriate Federal public health and
environmental requirements. Where the
selected remedy involves an EPA
standard, criterion, or advisory, the
decisionmaker will ensure appropriate
coordination with affected EPA
programs.
  In appropriate cases, the
decisionmaker may select a remedial
action that includes both on- and off-site
components.
  The decisionmaker may select an
alternative that does not attain
applicable or relevant requirements in
one of the five following circumstances:
  (a) Interim Remedy—Where the
selected alternative is not the final
remedy and will become part of a more
comprehensive remedy, the lead agency
may select an interim remedy;
  (b) Fund-Balancing—For Fund-
financed responses only, the need for
protection of public health, welfare and
the environment at the facility under
consideration for all of the alternatives
that attain or exceed applicable or
relevant and appropriate Federal
requirements is, considering the amount
of money available in the Fund,
outweighed by the need for action at
other sites that may present a threat to
public health or welfare or the
environment. In the event of Fund
balancing, the lead agency shall select
the alternative which most closely
approaches the level of protection
provided by applicable or relevant and
appropriate Federal requirements,
considering the specific Fund-balanced
sum of money available for the
immediate facility. Fund-balancing is
not a consideration in determining the
appropriate extent of remedy when the
response will be performed by a
potentially  responsible party;
  (c) Technical Impracticality—Where
no alternative that attains or exceeds
applicable or relevant and  appropriate
Federal public health and environmental
requirements is technically practical to
implement, the lead agency shall select
the alternative that most closely
approaches the level of protection
provided by the applicable or relevant
and appropriate requirements, and
which is reasonable to implement from
an engineering perspective;
  (d) Unacceptable Environmental
Impacts—Where all the alternatives
that attain or exceed Federal public
health and  environmental requirements,
if implemented, will result  in significant
adverse environmental impacts, the lead
agency shall select the alternative that
most closely approaches the level of
protection provided by applicable or
relevant and appropriate requirements,
without resulting in significant adverse
environmental impacts; or
  (e) Overriding Public Interest Related
to Enforcement—Where the remedy is
to be carried out pursuant  to CERCLA
section 106, the Fund is unavailable,
there is a strong public interest in
expedited cleanup, and the litigation
probably would not result  in the desired
remedy, the lead agency will select the
alternative that most closely approaches
applicable  or relevant and appropriate
Federal public health and environmental
statutes in  light of the need to invoke the
exception.
  Where one of these situations is
present, the decisionmaker may select
an alternative which does  not attain or
exceed applicable or relevant and
appropriate Federal public health or
environmental requirements, yet still
provides protection of the  public health
and welfare and the environment. The
basis for not meeting the requirements
must be fully documented  and explained
in the appropriate decision documents.
The Agency anticipates that most final
CERCLA remedial actions will attain or
exceed applicable or relevant and
appropriate public health or
environmental requirements.
  Other Federal criteria, advisories,
guidance, and State standards also will
be considered and may be used in
developing remedial alternatives, with
appropriate adjustments for site specific
circumstances. If EPA does not use, or
uses and adjusts any pertinent
standards in this category, EPA will
fully document the reasons why in the
decision documents.
  For Fund-financed actions, where
State standards are part of the cost-
effective remedy, the Fund will pay to
attain those standards. Where the cost-
effective remedy does not include those
State standards, the State may pay the
difference to attain them.
3. Administrative and Procedural
Aspects
  The following modifications will be
made to the Superfund community
relations program to ensure that it
provides a similar level of public
involvement to that provided by the
permitting programs of other
environmental laws:
  •  A fact sheet should be included
with the public notice and feasibility
study which is provided to the public 2
weeks before the 3-week public
comment period. The fact sheet will
clearly summarize the feasibility study
response alternatives and other issues,
including which alternatives attain or
exceed Federal public health and
environmental requirements. For those
alternatives that do not attain
applicable or relevant and appropriate
requirements of other public health and
environmental laws, the fact sheet shall
identify how they do not attain the
requirements and explain how they
nonetheless meet the goals of CERCLA.
The public notice should include a
timetable in which a decision will be
reached, any tentative determinations
which the Agency has made, the
location where relevant documents can
be obtained, identification of community
involvement opportunities, the name of
an Agency contact, and other
appropriate information.
   •  A public notice and updated fact
sheet should be prepared upon (1)
Agency selection of the final response
action and (2) completion of the final
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                                                           FEDERAL LAWS
engineering design. Prior to selecting the
final engineering design, the Agency
may hold a public meeting to inform the
public of the design alternatives and to
solicit comments.
  • If a remedy is identified that is
materially different from those proposed
during the feasibility study public
comment period, a new 3-week public
comment period may be required prior
to amending the Record of Decision.
taking into consideration the features of
the aitemati >es addressed in the public
comment period.
  The CERCLA enforcement community
relations program will also be modified
to provide for an enhanced public
participation program  for both consent
decrees and administrative orders. This
program will be substantially equivalent
to the revised program for Fund-
financed actions. Furthermore, consent
decrees and administrative orders will
incorporate administrative requirements
(i.e. recordkeeping and monitoring)
similar to  those mandated by other
environmental programs.
V. Applicability of Policy
  This policy applies to two situations:
  •  A site-specific FS has not yet been
initiated; the FS must fully comply with
this policy.
  •  The FS has been initiated, but the
remedy has not yet been selected: the
requirements of this policy shall be
incorporated into the FS and Record of
Decision (ROD) as practicable.
  This policy does not apply to RODs
signed befoie February 12,1985, the date
of proposal of this policy.
  If you have any questions or
comments, please contact James
Lounsbury, Director, Policy Analysis
Staff (202  332-2182) or Stephen M. Smith
of his staff (202 382-2200).
Potentially Applicable or Relevant and
Appropriate Requirements
  /. EPA's Office of Solid Waste
administers, inter alia, the Resource
Conservation and Recovery Act of 1976.
as amended (Pub. L 94-600. 90 Stat 95.
42 U.S.C. 6901 et set}.). Potentially
applicable or relevant requirements
pursuant to that Act are:
  a. Open Dump Criteria—Pursuant to
RCRA Subtitle  D criteria for
classification of solid  waste disposal
facilities (40 CFR Part Z57).
  Note.—Only relevant to nonhazardous
wastes.
  b. In most situations Superfund
wastes will be handled in accordance
with RCRA Subtitle C requirements
governing standards for owners and
operators of hazardous waste tieatment.
storage, and disposal facilities: 40 CFR
Part 264, for permitted facilities, and 40
CFR Part 265, for interim status
facilities.
  • Ground Water Protection (40 CFR
264.90-264.109).
  • Ground Water Monitoring (40 CFR
265.90-265.94).
  • Closure and Post Closure (40 CFR
264.110-264.120, 265.110-265.112).
  • Containers (40 CFR 264.170-264.178,
265.170-265.177).
  • Tanks (40 CFR 264.190-264.200,
265.190-265.199).
  • Surface Impoundments (40 CFR
264.220-264.249, 265.220-265.230).
  • Waste Piles (40 CFR 264.250-
264.269,265.250-265.258).
  • Land Treatment (40 CFR 264.270-
264.299. 265.270-265.282).
  • Landfills (40 CFR 264.300-264.339.
265300-265.316).
  • Incinerators (40 CFR 264.340-
264.999. 265.340-265.369).
  • Dioxin-containing Wastes (50 FR
1978). Includes the final rule for the
listing of dioxin containing waste.
2. EPA's Office of Water administers
several potentially applicable or
relevant and appropriate statutes and
regulations issued thereunder

  «. Section 14.2 of the Public Health
Service Act as amended by the Safe
Drinking Water Act as amended (Pub. L
93-523, 88 Stat. 1660.42 U.S.C. 300f et.
seq.}
  • Maximum Contaminant Levels (for
all sources of drinking water exposure).
(40 CFR 141.11-141.16).
  • Underground Injection Control
Regulations. (40 CFR Parts 144.145.146.
and 147).
  b. Cleun Water Act as amended (Pub.
L. 92-500, 86 Stat. 816.33 U.S.C. 1251 et.
seq.}
  • Requirements established pursuant
to sections 301. 302.303 (including Slate
water quality standards), 306. 307.
(including Federal pretreatmcnt
requirements for discharge into a
publicly owned treatment works), and
403 of the Clean Water Act. (40 CFR
Parts 131,400-469).
  c. Marine Protection, Research, and
Sanctuaries Act (33 U.S.C. 1401).
  • Incineration at sea requirements.
(40 CFR Parts 220-225, 227. 228. See also
40 CFR  125.120-125 124).

3. EPA's Office of Pesticides end Toxic
Substances
  Toxic Substances Control Act (15
U.S.C. 2601).
  • PCD Requirements Generally: 40
CFR Part 761; Manufacturing Processing.
Distribution in Commerce, and Use of
PCDs and PCB Items (40 CFR 761.20-
701.30): Markings of PCDs and PCB
Items (40 CFR 761.40-761.45): Storage
und Disposal (40 CFR 761.60-761.79).
Records and Reports (40 CFR 761.180-
761.185). See also 40 CFR 129.105. 750.
  • Disposal of Waste Material
Containing TCDD. (40 CFR Parts
775.1 BO-775.197).

4. EPA's Office ofExternal Affairs
  • Section 404(b)(l) Guidelines for
Specification of Disposal Sites for
Dredged or Fill Material (40 CFR Tart
230).
  • Procedures for denial or Restriction
of Disposal Sites for Dredged Material
(! 404(c) Procedures. 40 CFR Part 231).

5. EPA's Office of Air and Radiation
administers several potentially
applicable or relevant and appropriate
statutes and regulations issued
thereunder
  a. The Uranium Mill Tailings
Radiation Control Act of 1978 (42 U.S.C.
2022).
   • Uranium mill tailing rules—Health
and Environmental Protection Standards
for Uranium and Thorium Mill Tailings
(40 CFR Part 192).
   b. Clean Air Act (42 U.S.C. 7401).
   • National Ambient Air Quality
Standards for total suspended
particulates (40 CFR Parts 50.6-50.7).
   • National Ambient Air Quality
Standards for ozone (40 CFR 50.9).
   • Standards for Protection Against
Radiation—high and low level
radioactive waste rule. (10 CFR Part 20).
See also 10 CFR Parts 10.40,60,61, 72.
960.961.
   • National Emission Standard for
Hazardous Air Pollutants for Asbestos,
(40 CFR 61.140-61.156). See also 40 CFR
427.110-427.116. 763.
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   •  National Emission Standard for
 Hazardous Air Pollutants for
 Rfidionuclides (40 CFR Part 61.10 CFR
 20.101-20.108).

 ft Other Federal Requirements.
   a. OSHA requirements for workers
 engaged in response activities are
 codified under the Occupational Safctv •
 and Health Act of 1970 (29 U.S.C. 651)."
 The relevant regulatory requirements
 are included under:
   •  Occupational Safety and Health
 Standards (General Industry Standards)
 (29 CFR Port 1910).
   •  The Safety and Health Standards
 for Federal Service Contracts (29 CFR
 Part 1926).
   •  The Shipyard and Longshore
 Standards (29 CFR Parts 1915,1918).
   •  Recordkceping, reporting, and
 related regulations (29 CFR Part 1904).
   b. Historic Sites, Buildings, and
 Antiquities Act (16 U.S.C. 461).
   c. National Historic Preservation Act,
 16 U.S.C. 470. Compliance with NEPA
 required pursuant to 7 CFR Part 650.
 Protection of Archaeological Resources:
 Uniform Regulations—Department  of
 Defense (32 CFR Part  229, 229.4),
 Department of the Interior (43 CFR  Part
 7, 7.4).
   d. D.O.T. Rules for the Transportation"
 of Hazardous Materials. 49 CFR Parts
 107.171.1-171.500. Regulation of
 activities in or affecting waters of the
 United States pursuant to 33 CFR Parts
 320-329. The following requirements are
 also triggered by Fund-financed actions:
   •  Endangered Species Act of 1973,16
 U.S.C. 1531. (Generally, SO CFR Parts 81.
 225. 402). Wild and Scenic Rivers Act. 16
 U.S.C. 1271.
   •  Fish and Wildlife Coordination Act.
 16 U.S.C. fibl note.
   •  Fish and Wildlife Improvement Act
 of 1978. and Fish and Wildlife Act of
 1956.16 U.S.C. 742a note.
   • Fish and Wildlife Conservation Act
 of 1980.16 U.S.C. 2901. (Generally. 50
 CFR Part 83).
   •  Coastal Zone Management Act of
 1972.16 U.S.C. 1451. (Generally. 15 CFR
 Part 930 and 15 CFR 923.45 for Air and
 Water Pollution Control Requirements).

 Other Federal Criteria, Advisories,
 Guidance, and State Standards To Be
 Considered	             	
 7. Federal Criteria, Advisories and
 Procedures
   •  Health Effects Assessments (HEAs).
               • Recommended Maximum
             Concentration Limits (RMCLs).
               • Federal Water Quality Criteria
             (1976,1980.1984). Note: Federal Water
             Quality Criteria are not legally
             enforceable. State water quality
             standards are legally enforceable, and
             are developed using appropriate aspects
             of Federal Water Quality Criteria. In
             many cases, State water quality
             standards d" not include specific
             numerical limitations on a large number
             of priority pollutants. .Viien neither
             State standards nor MCLs exist for a
             given pollutant, Federal Water Quality
             Criteria are pertinent and therefore are
             to be considered.
               • Pesticide registrations.
               • Pesticide and food additive
             tolerances and action levels. Note:
             Germane portions of tolerances and
             action levels may be pertinent and
             therefore are to be considered in certain
             situations.
               • Waste load allocation procedures.
             EPA Office of Water.
               • Federal sole source aquifer
             requirements.
               • Public health basis for the decision
             to list pollutants as hazardous under
             section 112 of the Clean Air Act.
                • EPA's Ground-water Protection
             Strategy.
                • New Source Performance Standards
             for Storage Vessels for Petroleum
             Liquids.
                • TSCA health data.
             •  • Pesticide registration data.
               • TSCA chemical advisories (2 or 3
             issued to date).
               • Advisories issued by FWS and
             NUTS under the Fish and Wildlife
             Coordination Act.
               • Executive Orders related to
             Floodpluins (11988) and Wetlands
             (11990) as implemented by EPA's August
             6,1985, Policy on Floodplains and
             Wetlands Assessments for CERCLA
             Actions.
              . • TSCA Compliance Program Policy.
               • OSHA health and safety standards
             that may be used to protect public
             health (non-workplace).
               • Health Advisories, EPA Office of
             Water.

             2. State Standards
               • State Requirements on Disposal and
             Transport of Radioactive wastes.
  • State Approval of Water Supply
System Additions or Developments.
  • State Ground Water Withdrawal
Approvals.
  • Requirements of authorized
(Subtitle C of RCRA) State hazardous
waste programs.
  • State Implementation Plans and
Delegated Programs Under Clean Air
Act.
  • All other State requirements, not
delegated through EPA authority.
  • Approved State NPDES programs
under the Clean Water Act.
  • Approved State UIC programs
under the Safe Drinking Water Act.
Note: Many other State and local
requirements could be pertinent.
Forthcoming guidance will include a
more comprehensive list.

3. USEPA RCRA Guidance Documents
  • Draft Alternate  Concentration
Limits (ACL) Guidance.
A. EPA's RCRA Design Guidelines
  1. Surface Impoundments, Liners
Systems, Final Cover and Freeboard
Control.
  2,.Waste Pile Design—Liner Systems.
  3. Land Treatment Units.
  4. Landfill Design—Liner Systems and
Final Cover.
B. Permitting Guidance Manuals
  1. Permit Applicant's Guidance
Manual for Hazardous Waste Land
Treatment. Storage, and Disposal
Facilities.
  2. Permit Writer's  Guidance Manual
for Hazardous Waste Land Treatment,
Storage, and Disposal Facilities.
  3. Permit Writer's  Guidance Manual
for Subpart F.
  4. Permit Applicant's Guidance
Manual for the General Facility
Standards.
  5. Waste Analysis Plan Guidance
Manual.
  6. Permit Writer's  Guidance Manual
for Hazardous Waste Tanks.
  7. Model Permit Application for
Existing Incinerators.
  8. Guidance Manual for Evaluating
Permit Applications for the Operation of
Hazardous Waste Incinerator Units.
  9. A guide for Preparing RCRA Permit
Applications for Existing Storage
Facilities.
  10. Guidance Manual on Closure and
Post-Closure Interim Status Standards.
12-6-85
Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. Washington, D.C. 20037
                                                                                                                73
                                               A5.5

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41:3136
                                                          FEDERAL LAWS
C. Technical Resource Documents
(TRDs)

  (1) Evaluating Cover Systems for Solid
and Hazardous Waste.
  (2) Hydrologic Simulation of Solid
Waste Disposal Sites.
  (3) Landfill and Surface Impoundment
Performance Evaluation.
  (4) Lining of Water Impoundment and
Disposal Facilities.
  (5) Management of Hazardous Waste
Leachale.
  (6) Guide to the Disposal of
Chemically Stabilized and Solidified
Waste.

  (7) Closure of Hazardous Waste
Surface Impoundments.
  (8) Hazardous Waste Land Treatment.
  (9) Soil Properties, Classification, and
Hydraulic Conductivity Testing.

D. Test Methods for Evaluating Solid
Waste
  (1) Solid Waste Leaching Procedure
Manual.
  (2) Methods for the Prediction of
Leachate Plume Migration and Mixing.
  (3) Hydrologic Evaluation of Landfill
Performance (HELP) Model Hydrologic
Simulation on Solid Waste Disposal
Sites.
  (4) Procedures for Modeling Flow
Through Clay Liners to Determine
Required Liner Thickness.
  (5) Test Methods for Evaluating Solid
Wastes.
  (6) A Method for Determining the
Compatibility of Hazardous Wastes.
  (7) Guidance Manual on Hazardous
Waste Compatibility.

4. USEPA Office of Water Guidance
Documents

A. Pretreatment Guidance'Documents
  (1) 304(g) Guidance Document Revised
Pretreatment Guidelines (3 Volumes)

B. Water Quality Guidance Documents
  (1) Ecological Evaluation of Proposed
Discharge of Dredged Material into
Ocean Waters (1977)
  (2) Technical Support Manual:
Waterbody Surveys and Assessments
for Conducting Use Attainability
Analyses (1983)
  (3) Water-Related Environmental Fate
of 129 Priority Pollutants (1979)
  (4) Water Quality Standards
Handbook (1983)
  (5) Technical Support Document for
Water Quality-based Toxics Control.

C. NPDES Guidance Documents
  (1) NPDES Best Management Practices
Guidance Manual (June 1981)
  (2) Case studies on toxicity reduction
evaluation (May 1983).

D. Ground Water/UIC Guidance
Document
  (1) Designation of a USDW
  (2) Elements of Aquifer Identification
  (3) Interim guidance for public
participation
  (4) Definition of major facilities
  (5) Corrective action requirements
  (6) Requirements applicable to wells
injecting into, through or above an
aquifer which has been exempted
pursuant to §146.104(b)(4).
  (7) Guidance for UIC implementation
on Indian lands.

5. USEPA Manuals from the Office of
Research and Development

  (1) EW 846 methods—laboratory
analytic methods.
  (2) Lab protocols developed pursuant
to Clean Water Act { 304(h).
                                               Environment Reporter


                                                    A5.6
                                                                        74

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APPENDIX B

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                              APPENDIX B
                    ENDANGERED SPECIES INFORMATION
B-l  Federally listed and  proposed  endangered  and threatened species
     (current through January 1988) in EPA-Region II States (New York,
     New Jersey, Puerto Rico and U.S. Virgin Islands), and
B-2  Designated critical habitats (current through January 1988),
B-3  Guidelines for Conducting a Biological Assessment.

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NEW JERSEY
Common Name
Scientific Name
Status
Distribution
FISHES:
  Shortnose Sturgeon
Acipenser brevirostrum
          Hudson and Delaware Rivers
           plus other Atlantic
           Coastal Rivers
REPTILES:
  Green Turtle
  Hawksbill Turtle
  Leatherback Turtle
  Loggerhead Turtle
  Atlantic Ridley
   Turtle
Chelonia mydas
Eretmochelys imbricata
Dermocnelys coriacea
Caretta caretta
Lepidochelys kempii
          Oceanic summer visitor
           coastal  waters

          Oceanic summer visitor
           coastal  waters

          Oceanic summer visitor
           coastal  waters

          Oceanic summer resident
           coastal  waters rarely
           nests:  Cape May and
           Atlantic Counties

          Oceanic summer resident
           coastal  waters
BIRDS:
  BaTd Eagle

  American Peregrine
   Falcon
  Arctic Peregrine
   Falcon

  piping Plover

  Roseate Tern
Haliaeetus leucocephalus   E

FaIco peregrinus anatun    E




Falco peregrinus tundrius  E


Charadrius roelodus         T

Sterna dougallii dougalli  E
          Entire state

          Entire state -
           re-establishment to
           former breeding range
           in progress

          Entire state-migratory,
           no-nesting

          Coastal Counties

          Entire state
MAMMALS;
  ^astern Cougar
  Blue Whale

  Finback Whale
Pel is concolor cougar      E


Balaenoptera musculus      E

Balaenoptera physalus      E
          Entire state
           extinct

          Oceanic

          Oceanic
        - probably
                                        Bl.l

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NEW JERSEY (Cont'd.)
Common Name
Scientific Name
Status
Distribution
  Humpback Whale
  Right Whale
  Sei Whale
  Sperm Whale

MOLLUSKS:
  None
PLANTS:
  Small Worled
   Pogonia
Megaptera novaeangliae     E
Eubalaena glacialis        E
Balaenoptera boreal is      E
Physeter catodon           E
Isotria medeoloides
          Oceanic
          Oceanic
          Oceanic
          Oceanic
          Bergen, Hunterdon,
           Monmouth, Passaic,
           Sussex, Counties
                                        B1.2

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NEW YORK
Common Name
Scientific Name
Status
Distribution
FISHES:
  Shortnose Sturgeon
REPTILES:
  Green Turtle
  Hawksbill Turtle
  Leatherback Turtle
  Loggerhead Turtle
  Atlantic Ridley Turtle
Acipenser brevirostrum     E
Chelonia mydas
Eretmochelys imbri'cata
Dermochelys coriacea
Caretta caretta
Lepidochelys kempii
          Hudson River and other
           Atlantic Coastal  rivers
          Oceanic summer visitor
           coastal waters

          Oceanic summer visitor
           coastal waters

          Oceanic summer resident
           coastal waters

          Oceanic summer resident
           coastal waters

          Oceanic summer resident
           coastal waters
BIRDS:
  B"aTd Eagle

  American Peregrine
   Falcon
  Arctic Peregrine
   Falcon

  Piping Plover

  Roseate Tern
MAMMALS:
  Indiana Bat

  Eastern Cougar
  Blue Whale

  Finback Whale

  Humpback Whale

  Right Whale
Haliaeetus leucocephalus   E

Falco peregrinus anatum    E




Falco peregrinus tundrius  E


Charadrius me!opus         T
Sterna dougallii dougalli
Myotis soda! is
Felis concolor couguar
Balaenoptera musculus
Balaenoptera physalus
Megaptera novaeangliae
Eubalaena glacial is
E
E
E
E
E
E
E
Entire state
Entire state
Entire state
extinct
Oceanic
Oceanic
Oceanic
Oceanic
          Entire state - no nesting

          Entire state -
           re-establishment to
           former breeding range in
           progress

          Entire state-migratory,
           no-nesting

          Primarily Long Island
                                                - probably
                                         B1.3

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NEW YORK (Cont'd.)
Common Name
Scientific Name
Status
Distribution
Sei Whale
Sperm Whale
MOLLUSKS:
Chittenango Ovate Amber
Snail
PLANTS:
Northern Wild Monkshood
Small Worled Pogonia
Balaenoptera boreal is
Physeter catodon
Suiccinea oval is
chittenangoensis
Aconitum noveboracense
Isotria medeoloides
E
E
T
T
E
Oceanic
Oceanic
Madison County
Chenango, Ulster Counties
Nassau, Onondaga,
                                                                  Rockland,  Suffolk,
                                                                  Ulster,  Washington
                                                                  Counties
                                       B1.4

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PUERTO RICO
Common Name
Scientific Name
  Status
Distribution
REPTILES:
Giant Anole
Mona Boa
AnoVs roosevelti
Epi crates monensis
monensis
E
T
Culebra Island
Mona Island
  Virgin Islands Tree Boa
  Puerto Rico Boa
  Wonito Gecko
  Mona Ground Iguana
  Green Turtle
  Hawksbill Turtle
  Leatherback Turtle
  Loggerhead Turtle
AMPHIBIANS;
  Golden Coqui
Epicerates monensis granti E
Epicrates inornatus        E
Sphaerodactylus            E
micropthecus
Cyclura stejnegeri         T
Chelonia mydas             T
Eretmochelys imbricata     E
Dermochelys coriacea       E
Caretta caretta            T
            Cayo Diablo

            Monito Island
            Mona Island
Eleiitherodactylus
jaspen
  Puerto Rico Crested Toad    Peltophrayne lemur
    T       Southeast Puerto Rico
Proposed T  (imminent)
BIRDS;
  Peregrine Falcon, Arctic
Palco peregrinus tundrius  T
            Entire Island
PR Parrbtt
Brown Pelican
PR Plain Pigeon
Piping Plover
PR Nightjar
(formerly PR whipporwill)
Yellow Shouldered Blackbird
Roseate Tern
Amazona vittata
Pelecanus occidental is
Columba inornuta wetmorei
Charadrius melodus
Caprimulqus noctitherus
Agelaius anthonus
Sterna dougallii
E
E
E
T
E
E
E
                                                                 Southwest Puerto Rico
                              dougallti
                                        B1.5

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PUERTO RICO (Cont'd.)
Common Name
Scientific Name
Status
Distribution
MAMMALS;
  West Indian Manatee
  Fin Whale
  Humpback Whale
  Sen Whale
  Sperm Whale

PLANTS;
  Beautiful Goetzea
  Prickly Ash
  Vahl's Boxwood
  Wheeler's Peperomia
  Palo de Ram6n
  Elfon Tree Fern
  Cook's Holly
Trichechus manatus         E
Balaenoptera physalus      E
Megaptera novaeangliae     E
Balaenoptera boreal is      E
Physeter catodon           E

Goetzea elegans            E
Zanthoxylurn thomasianum    E
Boxus vahli                E
Peperomia wheelerii    Proposed E
Banara Vanderbiltii    Proposed E
Cyathea dryopteroides  Proposed E
Ilex cookii            Proposed E
                                        B1.6

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U.S. VIRGIN ISLANDS
Common Name
Scientific Name
Status
Distribution
REPTILES:
  VI Tree Boa
  St. Croix Ground Lizard

  Green Turtle
  Hawksbill Turtle
  Leatherback Turtle
  Loggerhead Turtle
BIRDS;
  Brown Pelican
  Roseate Tern
MAMMALS:
  Fin Whale
  Humpback Whale
  Sei Whale
  Sperm Whale
PLANTS:
     Prickly Ash
Epicarates monensir        E
Ameiva polops              E

Chelonia mydas             T
Eretmochelys imbricata     E
Dermochelys coriacea       E
Caretta caretta            T

Pelecanus occidental is     E
Sterna dougal1i i           E
dougallii

Balaenoptera physalus      E
Megaptera novaeangliae     E
Balaenoptera boreal is      E
Physeter catodon           E

Zanthoxylum thomasianum    E
          East side of St.  Thrmas
          St.  Thomas, St.  John
                                       B1.7

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                      LIST OF DESIGNATED CRITICAL HABITATS
NEW JERSEY:

NEW YORK:

PUERTO RICO:
None

None



SPECIES
          Giant Anole

          Mona Boa

          Monito Gecko

          Mona Ground Iguana

          Hawksbill Turtle
          Golden Coqui
          Yellow Shouldered
          Blackbird
                                                  CRITICAL HABITAT
                         Culebra Island, north side of Monte Resaca

                         Mona Island in its entirety

                         Monito Island in its entirety

                         Mona Island in its entirety

                              Mona Island, all areas of beachfront
                              on the west, south, and east sides of
                              the Island from mean high tide inland
                              to a point 150 meters from the shore.

                              Culebra Island, beachfront on Playa
                              Brava, Playa Resaca, and Playa Larga.

                              Caye Norte (off Culebra), beachfront
                              on South Beach.

                              Culebrita Island, all beachfront on
                              the southwest facing shore, east
                              facing shore, and northwest facing
                              shore.

                         Southeast Puerto Rico (inland), elevations
                         above 700 meters on Cerro Avispa, Monte el
                         Gato and Sierra de Cayey.


                              Mona Island, in its entirety

                              Southwest Puerto Rico, and Roosevelt
                              Roads Naval Station
                                         B2.1

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VIRGIN ISLANDS:

               SPECIES _ CRITICAL HABITAT

          St.  Croix Ground Lizard       Green Cay, Protestant Cay, off the north
                                        coast of St.  Croix.
          Leatherback Turtle            Sandy Point Beach on +he western end of
                                        St.  Croix, beachfront from mean high tide
                                        to .2 miles inland.
                                        B2.2

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           Guidelines for Conducting a Biological  Assessment

(1)  Conduct a scientifically  sound on-site inspection of  the  area
     affected by  the action.   Unless otherwise  directed  by  the
     Service, include a  detailed  survey  of the area to determine if
     listed or proposed  species are present or occur seasonally  and
     whether suitable  habitat exists  within the  area  for either
     expanding the  existing  population  or reintroducing  a  new
     population.

(2)  Interview recognized experts  on the  species  listed,  including
     those within the Fish and Wildlife  Service,  the National  Marine
     Fisheries Service,  state conservation  agencies, universities and
     others who may have data not  yet found in  scientific  literature.

(3)  Review  literature  and  other  scientific data  to determine the
     species  distribution,  habitat  needs,  and  other  biological
     requirements.

(4)  Review and analyze the effects  of the action  on the  species, in
     terms of individuals and  population,  including  consideration of
     the cumulative effects  of the action on the species and habitat.

(5)  Analyze  alternative actions  that  may provide  conservation
     measures.

(6)  Conduct any  studies necessary to fulfill the requirements of (1)
     through (5)  above.

(7)  Review any other information.
Source:   US Fish and Wildlife  Service,  Correspondence in Section 7
          Consultations.
                              B3.1

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APPENDIX C

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                              APPENDIX C

                    NATIONAL WILD AND SCENIC RIVERS
This appendix contains an inventory (current through January 1988) of
rivers in the  EPA - Region II which  are relevant to the  Wild  ard
Scenic Rivers Act.   (There  a»e  no rivers in Puerto Rico or the l.S.
Virgin Islands appearing in the  inventory.)  The  inventory has  three
categories:   eligible,  under  study,  and  designated.   The eligible
category contains  rivers which  meet  the  criteria  for  Congressional
designation for  inclusion  in  the wild and  scenic  rivers  system but
have not as yet been studied or designated.  The under study category
contains rivers which are  Congressionally mandated for  further  study
by the NPS.  The conclusion of each  study will  manifest  in either
Congressional designation for inclusion in  the wild and scenic  rivers
system or removal  from  the eligible  category.   The third category
contains the  rivers which  have been  designated  by Congress  for
inclusion in the wild and scenic rivers system.

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ELIGIBLE RIVERS
NEW JERSEY
River Name
Segment Reach Description
De'aware River/Bay System
Delaware River
 (including)
  Salem River
  Back Creek
  Dividing Creek
  Oranoaken Creek
  Nantuxent Creek
  Cedar Creek
  West Creek
  Dennis Creek
  Stow Creek
  Hope Creek
  Fishing Creek
  Mad Horse Creek

Hackensack River
 (including)
  Berrys Creek
Lamington-Black River

Passaic River
Passaic River
Passaic River
 (including)
  Great Brook
Delaware Bay to Salem Nuclear Power Plant

Salem to 2 miles upstream from Courses Landing
Back Creek Point to Husted Landing
Mouth to Tom's Bridge
Mouth to headwaters in Bear Swamp
Mouth to upstream from Newport
Mouth to south of Cedarville
Mouth to Pickle Factory Pond
Mouth to headwaters in the Great Cedar Swamp
Mouth to south of Pickles Mill
Mouth to headwaters
     Storm Inlet to Alloway Creek Neck Road
Mouth to headwaters of Little and Turners
Fork Creeks
Penn Central R.R. crossing to south of Route 3

Confluence with the Hackensack River to south
of Route 3
Confluence with the West Branch Raritan River
to Randolph
Two Bridges to Route 80
Cook's Bridge to the Morris Turnpike
Route 78 to Osborn Mills
Confluence with the Passaic River to Silver Lake
                                  C.I

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ELIGIBLE RIVERS
NEW JERSEY
River Name
Segment Reach Description
Pine Barrens River System
Batsto River
(including)
  Penn Swamp Branch
  Deep Run Brook
  Springers Brook
  Skit Branch
  Roberts Branch
Cedar Creek
Cedar Creek
 (including)
  Factory Branch
Cedar Creek
(including)
  Newbolds Branch
  Daniels Branch
Cedar Creek
(including)
  Chamberlain Branch
  Webbs Mill Branch
Cohansey River
North Branch of the
Forked River
Mullica River to Hampton

Confluence with Batsto River to headwaters
Confluence with Batsto River to headwaters
Confluence with Deep Run Brook to Indian Mill Brook
Confluence with Batsto to headwaters
Confluence with Skit Branch to headwaters
Lanoka Harbor to Bamber Lake
Route 9 crossing to the dam above Double Trouble
Confluence with Cedar Creek to headwaters
Transmission line crossing above Double Trouble
Dam to Bamber Lake
Confluence with Cedar Creek to headwaters
Confluence with Cedar Creek to headwaters
Bamber Lake to headwaters

Bamber Lake to headwaters
Confluence with Chamberlain Branch to headwaters
Delaware Bay to Rogap Run
Garden State Parkway to the headwaters of the
Cave Cabin Branch
Great Egg Harbor River   Great Egg Harbor Bay to south of May's Landing
  Tuckahoe River
  Middle River
Great Egg Harbor Bay to Tuckahoe
Great Egg Harbor Bay to north of Corbin City
                                  C.2

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ELIGIBLE RIVERS
NEW JERSEY
River Name
Segment Reach Description
Great Egg Harbor River
Great Egg Harbor River

Mullica River
(including)
  Ballanger Creek
  Bass River
  Nacota Creek
  Landing Creek
  Pine Creek

  Nescochague Creek
  Great Swamp Branch

  Albertson Brook
  Sleeper Branch

  Alquatka Branch
Maurice River
(including)
  Manusmuskin
  Menantico Creek
E. Br. Oswego River
W. Br. Oswego River
Toms River
(including)
  Long Brook
Weymouth to the Atlantic City Expressway
TLw Brooklyn Lake backwater to the Pa.-Reading
R.R. crossing
Great Bay to headwaters
Confluence with Mullica to Route 9
Confluence with Mullica for 2 miles
Confluence with Mullica to confluence with Mattix
Confluence with Mullica to Indian Cabin Road
Confluence with Mullica to reservoir below
Weekstown
Confluence with Mullica to Great Swamp Branch
and Albertson Brook Branch
Confluence with Nescochaque Creek to reservoir
at Myrtle Avenue
Confluence with Nescochaque Creek to Pa. Railroad
Confluence with Mullica to reservoir below
Route 206
Confluence with Mullica to headwaters
Town of Shell pile to 3 miles north of the Laurel
Lake area
Confluence with Maurice to Pa. Reading Seashore Lines
Entire Creek
E & W Br. to Sim Place reservoir
E & W Br. to near Route 563
Central railroad bridge to the bridge crossing
northeast of Cassville
From confluence with Toms River to headwaters
                                  C.3

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ELIGIBLE RIVERS
NEW JERSEY
River Name
Segment Reach Description
  'laple Root Branch

  Dark Branch
Wading River
(including)
  Beaver Run
  West Branch
  Tu'pehocken Creek
  Hospitality Brook
  Little Hanken Run
From conflue'iCe with Toms River to confluence
with Dark Branch
From confluence with Maple Root Br. to headwaters
Confluence with Mullica to E & W Branches

Confluence with Wading to headwaters
Confluence with Wading to Tulpehocken Creek
Confluence with West Branch to headwaters
Confluence with West Branch to Wallow Bogs
Confluence with West Branch to Wallow Bogs
                                 C.4

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ELIGIBLE RIVERS
NEW YORK
River Name
Segment Reach Description
Allegheny River
Black River
(including)
  Independence River
  Otter Creek
  Roaring Brook
Carmans River
Catskill Creek
Cattaraugus Creek
Cattaraugus Creek
Cattaraugus Creek
Chautaqua Creek
Chemung River
Claverack Creek
(including)
  Taghkanic Creek
Clyde River
Conewango Creek
Chateaugay River
Chateaugay River
Connetquot River
Deer River
East Branch of the
Delaware River
Great Valley Creek to Townsend Hollow
Carthage to Lyons Falls
Confluence with the Black River to Pine Grove Rd.
Confluence with the Black River to Pine Grove Rd.
Confluence with the Black River to Martinsburg
Long Point to the Long Island Expressway
South Cairo to headwaters
South of the NY State Thruway to North Gowanda
Gowanda to Buttermilk Creek
Buttermilk Creek to Yorkshire
Route 20 Bridge in Westfield to Putnam Road
West of South Corning Road to Fitch Bridge
Stottville to Red Mills

Confluence with Claverack Creek to headwaters
West of Clyde to Creager Bridge
PA border to Clear Creek near Jamestown
Canadian border to the abandoned railroad
line near Chateaugay
Abandoned railroad line near Chateaugay
to the Forge
Johnson Ave. to south of the Sunrise Highway
Confluence with the St. Regis River to APA boundary
Harvard to Downsville
East Branch Fish Creek   Taeberg to headwaters
                                  C.5

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ELIGIBLE RIVERS
NEW YORK
River Name
Segment Reach Description
Genese River
Genese River
Genese River
Hoosic River
(including)
  Tomhannock Creek
Hoosic River
(including)
  Little Hoosic River
Hudson River
Hudson River
Hudson River
Kayaderosseras Creek
Mohawk River
Neversink River
Normans  Kill
(including)
   Hunger Kill
   Kaikout Kill
   Poesten Kill
Oswegatchie  River
Salmon River
Salmon River
 (including)
   North  Branch  of  the
   Salmon River
NY State Thruway to Route "**> near Mount Morris
Mount Morris to Portageville
Portageville to Belmont
Confluence with the Hudson River to Schaghticoke
Confluence with the Hoosic River to the Boston-
Maine railroad bridge
Hoosic Falls to near North Pownal
Confluence with the Hoosic River to near
Petersburg
North of Barrytown to south of Maiden on  Hudson
North of Hudson to south of Coxsackie
North of Coxsackie Island to above New  Baltimore
One mile north of Ballston Spa to Rock  City  Falls
North of Route 12 to Stanwix
South of Cuddebackville to Rock Hill
NY State Thruway to Route 146

Confluence with the Normans  Kill to Kydius St.
Confluence with the Hunger Kill to the  headwaters
pond  near the  City of Albany boundary
West  of Poesten Kill to Dyken  Pond
Two miles south of Heuvelton to Route  87  bridge
Route 81 to  Lower Reservoir
Salmon  Reservoir to the headwaters of  the East Branch

Salmon  Reservoir to Gastor  Pond
                                   C.6

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ELIGIBLE RIVERS
NEW YORK
River Name
Segment Reach Description
      River
Sandy Creek System
Sandy Creek
(including)
  Gulf Stream
  Shingle Gulf

  Bear Gulf
Sandy Creek
(including)
  South Sandy Creek
  Abijah
  Fox Creek

Schoharie Creek
Schoharie Creek

Schoharie Creek
(including)
  Batavia Kill
Unadilla River

Wall kill River
Wappinger Creek
Confluence with the North Branch to the headwaters
near the county boundary
East of Adams to the headwaters
Confluence with Sandy Creek to the headwaters
of Jacobs Creek
Confluence with Sandy Creek to the headwaters
east of Whitesvilie Road
Confluence with Sandy Creek to headwaters north
of Woodard Road
Mouth at Lake Ontario to Route 81
Mouth at Lake Ontario to the headwaters at
the unnamed pond on the Lewis-Jefferson County
boundary
Confluence with South Sandy Creek to Leepy Rd.
Confluence with South Sandy Creek to the Lorraine
- E. Boy>ston Rd.
New York State Thruway to Esperance
Near Vroman's Nose to the Blenheim-Gil boa Pump
Storage Project dam
Prattsville to headwaters
Confluence with Schoharie to Windham
Confluence with the Susquehanna River to West
Edmeston
Hamburg, NJ to the Merritts Island, NY area
Nootemig Lake to headwaters at Thompson Pond
                                  C.7

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ELIGIBLE RIVERS
NEW YORK (ADIRONDACK)
River Name
Segment Reach Description
Adirondack Province River System
Ampersand Brook
Ausable River

  E. Branch Ausable
  River
  W. Branch Ausable
  River
Black River
Blue Mountain Stream

Bog River
(including)
  Round Lake Outlet
Boreas River
Boreas River
Bouquet River
(including)
  North Branch of the
  Bouquet River
  North Fork of the
  Bouquet River
  South Fork of the
  Bouquet River
East Canada Creek
West Canada Creek
(including)
  South Branch of the
  West Canada Creek
Stony Creek Ponds to Ampersand Lake
Mouth at Lake Champlain to confluence of East &
West Branches (Au Sable Forks)
Ausable Forks to Marcy Swamp

Ausable Forks to headwaters near Heart Lake

Kayuta Lake to North Lake
Confluence with Pleasant Lake stream to Clear
Pond
Tupper Lake to dam below Hitchins Pond

Confluence with Bog River to Round Lake
Confluence with the Hudson River to Cheney Pond
Brace Dam to Boreas Pond
Lake Champlain to the confluence with the North
Fork
Confluence with Main Branch to Trout Pond

Bridge at Rte 73 to headwaters on Dial Mt.

Bridge at Rte 73 to headwaters
Dolgeville to headwaters near Powley Place
Harvey Rd. bridge crossing to Mud Lake
Confluence with West Canada Creek to headwaters
                                  C.8

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ELIGIBLE RIVERS
NEW YORK (ADIRONDACK)
River Name
Segment Reach Description
Cedar River

Chateaugay River

Cold River
(including)
Moose Creek
Oulaska Pass Brook
Deer River
Grasse River

  North Branch of
  the Grasse
  Middle Branch of
  the Grasse
  South Branch of
  the Grasse
Great Chazy River
East Stony Creek
Hudson River

Independence River
Indian River

Indian River
Indian River
Jordan River
Kunjamuk River
Long Pond Outlet
Confluence with the Hudson Ri-sr to the outlet
of Cedar Lakes
Park Boundary (Lower Chateaugay Lake) to Bluff
Point (Upper Chateaugay)
Confluence with Raquette River to Duck Hole
Confluence with Cold River to Moose Pond
Confluence with Cold River to headwaters
Park boundary to Deer River Flow
Northernmost Park boundary crossing to confluence
of Middle and South Branches
Park Boundary to Church Pond
Confluence with the South Branch to confluence
with Pleasant Lake Stream and Blue Mountain Stream
Confluence with the Middle Branch to Center Pond
Robideau Road Bridge to Chazy Lake
Great Sacandaga Lake to Lixard Pond
Confluence with the Sacandaga River to the
confluence with the Opalescent
Park Boundary to Little Diamond Pond
Confluence with the South Branch of the Moose
River to Brook Trout Lake
Confluence with the Hudson River to Indian Lake
Antwerp to headwaters
Carry Falls Reservoir to Marsh
Confluence with the Sacandaga River to South Pond
Confluence with the West Branch of the St. Regis
River to Long Pond
                                   C.9

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ELIGIBLE RIVERS
NEW YORK (ADIRONDACKS)
River Name
Segment Reach Description
Marion River
Mill Creek
Moose River
(including)
  Middle Branch of
  the Moose River
  North Branch of
  the Moose River
  South Branch of
  the Moose River
Opalescent River
(including)
  South Branch
  Opalescent River/
  Skylight Brook
  Upper & Lower Twin
  Brooks
Osgood River
Oswegatchie River
Oswegatchie River
(including)
  Middle Branch of the
  Oswegatchie River
  West Branch of the
  Oswegatchie River
  West Branch of the
  Oswegatchie River
Otter Brook
Otter Creek
Raquette Lake to Utowana Lake
Confluence with the. .uidson to Garnet Lake
Park Boundary to the confluence with the Middle
and South Branches
Confluence with the South Branch to the
confluence with the North Branch
Confluence with the Middle Branch to Bid
Moose Lake
Confluence with the Middle Branch to Little
Moose Lake
Confluence with the Hudson River to Flowed Land

Confluence with Opalescent to headwaters
Confluence with Opalescent to headwaters

Jones Pond Outlet to Meacham Lake
Route 87 bridge to Natural Dam
Wanakena to Partiow Mill Dam
Confluence with the Main Branch to the headwaters
near Walker Lake
Fullerville dam backwater to Harrisville
northern boundary
Southern boundary of Harrisville to Buck Pond
Confluence with the South Branch of the
Moose River to Lost Pond
Confluence with the Black & Big Otter Lake
                                   C.10

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ELIGIBLE RIVERS
NEW YORK (ADIRONDACKS)

River Name
Segment Reach Description
Piseco Lake Outlet


Pleasant Lake Stream


Raquette River


Red River


Rock River

Sacandaga River
(including)

  E. Branch of the
  Sacandaga River

  W. Branch of the
  Sacandaga River

  N. Branch of the
  Sacandaga River

  Silver Lake Outlet
St. Regis River
(including)

  West Branch of the
  St. Regis River

  West Branch of the
  St. Regis River

East Branch of
St. Regis River

Salmon River

Saranac River
(including)

  North Branch of the
  Saranac River
Confluence with the West Branch of the Sacandaga
to State Route 10

Confluence with the Middle Branch of the Grasse
River to Pleasant Lake

Confluence with Carry Falls Reservoir (Jamestown
Falls) to the outlet of Raquette Lake

Confluence with the South Branch of the Moose River
to headwaters

Confluence with the Cedar River to Lake Durant

Great Sacandaga Lake inlet to Lake Pleasant outlet


Confluence with the main branch to Botheration Pond
Confluence with the main branch to headwaters
near Silver Lake Mountain

Confluence with the West Branch to headwaters
(Canary Pond)

Confluence with the West Branch of the Sacandaga
to Silver Lake

Brasher Falls to Lower St. Regis Lake
Confluence with the main branch at Winthrop
to Allen Falls Reservoir

Parishville to headwaters at Little Fish Pond
Confluence with the main Branch above Santa Clara
to headwaters at Mecham Lake

Park Boundary to Elbow Ponds

Bridge crossing south of Elsinore to Upper
Saranac Lake outlet

Confluence with the main branch to Mud Pond
                                 C.ll

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ELIGIBLE RIVERS
NEW YORK (ADIRONDACKS)
River Name
Segment Reach Description
Schroon River
(including)
  The Branch
Thirteenth Brook
Trout Brook
West Stony Creek
Confluence with the Hudson  River  to  the outlet
of the former Deadwater Pond
Confluence with Schroon River  to  Elk Lake
Confluence with Hudson River to Thirteenth  Lake
Pottersville to Olmstedville
Confluence with the Sacandaga  River  to Peck's Lake
                                  C.12

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DESIGNATED RIVERS

New Jersey
River Name
Segment Reach Description
Middle Delaware River
Northern b.jndary of the Delaware Water
Gap  Recreational   Area  to   southern
boundary (35 miles)
DESIGNATED RIVERS

New York

River Name
Segment Reach Description
Middle Delaware River
Upper Delaware River
Northern boundary of the Delaware Water
Gap  Recreational  Area  to   southern
boundary (35 miles)

Confluence of the East and West Branches
of the Delaware River, below Hancock to
the  existing  RR  bridge  immediately
downstream  of Cherry  Island  in  the
vicinity of Sparrow Bush (75.4 miles)
UNDER STUDY RIVERS

New Jersey

River Name
Segment Reach Description
Great Egg Harbor River

Maurice River


Manumuskin River


Menantico Creek
entire river

Town of Shell pile  to  3 miles north of
the Laurel Lake area

Confluence of the Maurice River to State
Route 49

Confluence of the  Maurice  River  to its
source  at  the  Panther and Cedar
Branches.
                                  C.13

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APPENDIX D

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                APPENDIX D
LIST OF COASTAL BARRIERS IN EPA - REGION II
      (current through January 1988)

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New Jersey;    None

New York:
Fisher's Island
Asharoken
Setauket
Setauket
Shelter  Island
East Hampton Town
East Hampton Town
Gardiner's Island

Amagansett
Southampton
Fire Island
Fire Island

Fisher Island Barriers
Eaton's i'ieck
Crane Neck
Old Field Beach
Shelter Island Barriers
Sammy's Beach
Acabonack Harbor
Gardiner's Island
Barriers
Napeague
Mecox
Southampton Beach
Tiana Beach
Length
(Miles)
0.9
0.8
0.7
2.2
2.3
0.8
2.1
6.9
0.9
0.6
1.4
1.4
Area
(Acres)
41
"7
148
410
218
353
172
1,600
214
100
549
793
                              TOTAL
 Puerto  Rico;   None
 U.S. Virgin  Islands:
                   21
4,635
None
                               D.I

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APPENDIX E

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          APPENDIX E
   LIST OF WILDERNESS AREAS
(Current through January 1988)

-------
New Jersey:
1.   Portion of the Great Swamp National
     Wildlife Reguge
2.   Portion of Edwin B. Forsythe National
     Wildlife Refuge, Brigantine Division
3.   Portion of Edwin 6. Forsythe National
     Wildlife Refuge, Barnegat Division
                                   Area:
                                   3,660 acres
Location;
Basking Ridge/
Morristown
                                   6,000 acres    Oceanville
                                     256 acres    Barnegat
New York:
None
Puerto Rico:   None
U.S. Virgin Islands;     None
                               E.I

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                              APPENDIX F
                    SIGNIFICANT AGRICULTURAL LANDS
                              INFORMATION
F-l  Significant Agricultural Lands as Defined by EPA Policy.
F-2  Farmland Conversion Impact Rating Form (AD 1006).

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                     SIGNIFICANT AGRICULTURAL  LANDS

                        As Defined by EPA Policy
 1.    Prime  farmland is  land with the best combination of characteris-
      tics  capable of economically proJucing sustained high yields of
            when managed.   While based on a variety of site characte-
      ristics,  the key to  these lands  is  "high  productivity."

 2.    Unique  farmland  is land other than prime  farmland  that  is  used
      for  production  of specific high value  food or  fibre  crops.
      Examples  of such crops are cranberries, fruits, vegetables, and
      tree  nuts.

 3.    Additional  land  of statewide importance  is  land which,  with
      proper  treatment or  management,  may produce crops of high yield.
      These  lands  are  individually identified by each  state.   Lands  of
      this  type may produce as high a yield as  "prime" lands  but  may
      have  severe  limitations which  reduce the choice of plants of that
      require very careful  management, or both.

 4.    Additional farmland  of  local importance is  land not identified as
      having  Statewide or  National  importance but, due to a range of
      factors,  has local significance.  These  lands are identified by
      the  local agencies  concerned.   Examples   include agricultural
      lands owned  by a town and leased back  to  fanners as a conserva-
      tion district.

 5.    Farmlands  in or  continuous  to environmentally sensitive areas
      (CSAs)  such  as  floodplains, wetlands,  aquifer recharge zones or
      natural scientific study  areas;  these  farmlands play a  crucial
      environmental buffer role  to prevent development encroachment  on
      ESAs.  The  lands,  in many cases, are categorically  included in
      land types 1-4.

6.   Farmlands of waste utilization importance  which may  serve in the
      land treatment process, be  used  for composting activities or for
     controlled beneficial  application of sewage  sludges or other
     wastes.

7.   Farmland with significant capital investments in Best Management
     Practices (BMPs) which serve as elements of an area's (or state's
     soil  erosion and non-point source pollution control  plans.   These
     lands are  included so as  not  to  interfere with the  investments
     other agencies have  made  in programs, such as USDA,  SCS  erosion
     control projects or 208' area-wide management programs.
                               Fl.l

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                          U.S. Department of Agriculture
          FARMLAND CONVERSION IMPACT RATING
J 1 (To be completed by Federal Agency)


RT 1 1 (To be completed by SCS)
Date Of Land Evaluation Request


Federal Agency Involved
County And State




Date Request Received By SCS
Does the. site contain prime, unique, statewide or local important farmland? Yes No
llf no, the FPPA does not apply — do not complete additional parts of this form). D D
MejorCropW ; -. ••,'.,;;.•'; V •.^^^V'^V '
Mime Of Lend Evaluation System Used , .-,
•'^
FarmabJe Land In Govt. Jurisdiction :. . < v
Name Of Local She Atsesament System* :
RT III (To be completed by Federal Agency)
A. Total Acres To Be Converted Directly
B. Total Acres To Be Converted Indirectly
C. Total Acres In Site
RT IV (TobtcompTetedbySCS). Unrf Evrtuatibnlnformatlon /'V?--;vrv
A. Total Acres Prime And Unique Farmland' ' : "-":. -•,•>.. , : -
5. Total Acres Statewide And Local Important Farmland : •- • :• ' «.• , '•«:
C: Percentage Of Farmland In County Or Local Govt Unit To Be Converted
D. Percentage Of Farmland In Govt. Jurisdiction With Sam* Or Higher Relative Value
IRT V (To be completed by SCS) Land. Evaluation Criterion . , ;./•.;;-
Relative Value Of Farmland To Be Converted (Scale of 0 to 100 Points) '
ST VI (To be completed by Federal Agency)
\sse*sment Criteria (Thttf critma «/•> txplfinud in 7 CFR 6S8.Slbl
1. Area In Nonurban Use
2. Perimeter In Nonurban Use
3. Percent Of Site Being Farmed
4. Protection Provided By State And Local
Government
5. Distance From Urban Builtup Area
6. Distance To Urban Support Services
7. Size Of Present Farm Unit Compared To Average
8. Creation Of Nonfarmable Farmland
9. Availability Of Farm Support Services
10. On-Farm Investments
11. Effects Of Conversion On Farm Support Services
12. Compatibility With Existing Agricultural Use
TOTAL SITE ASSESSMENT POINTS
iRT VI 1 (To be completed by Federal Agency)
Relative Value Of Farmland (From Part V)
Total Site Assessment (From Part VI above or a local
u'te assessment/
TOTAL POINTS (Total of above 2 lines)
te Selected:

Maximum
Points












160

100
160
260
Acres Irrigated
Average Farm Size
Amount Of Farmland As Defined in FPPA
• * ' •' . • *A" *'''•' ' ' '-•-- V» -r ' "»*• • ' -
ACTBSl -' ""'* * ' ••':- *' - *-"•'*.' -- 70 '*• • •
Date Land Evaluation Returned By SCS
Alternetive Site Rating
Site A



••:;v?W&:':-
.•?;-;-.••-•.".,. •*.-••
:;-.*.', •»..-.>.:;",>-^.;
' "• ' • •"!•. .•. ..
. ': .• - ''.'•••.:•'•>
• '.'.• 7v;V:/.'--t."-";


















Date Of Selection
SiteB



cr&^:;^:;
-. ':;.:.; ... •£•
:•„•'.- ;^..,..-.-; .. .v:
. ..-:...... • . ..... •••
.•-.-.-.•••.•• •• •• ...
-::-;^^ •;".-'


















SiteC



'''•?*%- Xy'S'S.--
.•:.•-• -''.' ; .-. •'.;••- .-.-'
. '•- -;.. -.'".''* • ' .'.


•• •' '**'


















SiteD



'.-"••:-: ;. -;':• •;'




:.•-,-. •• '- •


















Was A Local Site Assessment Used?
Yes D No D
i For Selection:
                                F2.1
       r»¥»rse tidi)
                                                             Form ADO 006 ,10-83)

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            STEPS IN THE PROCESSING THE FARMLAND AND CONVERSION IMPACT RATING FORM


Step 1 —  Federal agencies involved in proposed projects that may convert farmland, as defined in the Farmland Protection
Policy Act (FPPA) to nonagricultural uses, will initially complete Parts I and III of the form.

Step 2 -  Originator will  send copies A, B and C together with maps indicating locations of site(s), to the Soil Conservation
Service (SCS) local field office and retain copy 0 for their files. (Note: SCS has a field office in most counties in the U.S. The
field office is usually located in the county seat. A list of field office locations are available from the SCS State Conservationist
in each state).

Step 3 -  SCS will, within 45 calendar days after receipt of form, make a determination as to  whether the site(s) of the pro-
posed project contains prime, unique, statewide or local import: _t farmland.

Step 4 -  In cases where  farmland  covered by the FPPA will be converted by the proposed project, SCS field offices will com-
plete Parts II, IV and V of the form.

Step 5 -  SCS will return copy A and B of the form to the Federal agency involved in the project. (Copy C will be retained for
SCS records).

Step 6 -  The Federal agency involved in the proposed project will complete Parts VI and VII of  the form.

Step 7 -  The Federal agency involved in the proposed project will make a determination as to whether the proposed conver-
sion is consistent with the FPPA and the agency's internal policies.
     INSTRUCTIONS FOR COMPLETING THE FARMLAND CONVERSION IMPACT RATING FORM


Part I:  In completing the "County And State"  questions list all. the local governments that are responsible
for local land controls where site(s) are to be evaluated.

Part III: tn completing item B (Total Acres To 3e Converted Indirectly), include the following:

1.  Acres not being directly converted but that would no longer be capable of being fanned after the conver-
sion, because ihe conversion would restrict access to them.

2.  Acres planned to receive services from an infrastructure project as indicated in the project justification
(e.g. highways, utilities) that will cause a direct conversion.

Part VI: Do not complete Part VI if a local site assessment is used.

Assign the  maximum points for each site assessment criterion as shown in §658.5(b) of CFR. In cases of
corridor-type projects such as transportation, powerline and flood control, criteria  #5 and #6  will not apply
and will be weighed  zero, however, criterion #8 will be weighed  a  maximum of 25  points, and criterion
#11 a maximum of 25 points.

individual Federal agencies at  the national level, may assign relative  weights among the 12 site assessment
criteria other than those shown in the FPPA rule, in all cases where other weights are assigned, relative adjust-
ments must be made to maintain the maximum total weight points at 160.

In rating alternative sites,  Federal agencies shall consider each of the criteria  and assign points within the
limits established in the FPPA rule. Sites most  suitable for protection under these criteria will receive the
highest total scores, and sites least suitable, the lowest scores.

Part VII:   In computing the "Total Site Assessment Points", where  a State or local site assessment  is  used
and the total maximum number of points is other than 160, adjust the site assessment points to  a base of 160.
Example: if the Site Assessment maximum is 200 points; and alternative Site "A" is  rated 180 points:
Total points assigned Site A = 180 x  160  = 144 points for Site "A."
Maximum points possible    200
                                                F2.2

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APPENDIX G

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                              APPENDIX 6

                 NATURAL RESOURCE TRUSTEE INFORMATION

G-l  Trustee Notification Form.

G-2  MOD Between EPA and DOI for the Preliminer> Katural Resource
     Sirveys, December 4, 1987.

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S   UNITED STATES ENVIRONMENTAL PROTECTION  AGENCY

                                     REGION II
                                26 FEDERAL PLAZA
                          NEW YORK NEW YORK  10278
                 Notification of Federal  Natural  Resource Trustees
                                                           dtv
       Count,. _ ,   State.Cw.Terr.
       OteraMe Unit Name -
            001 - Regional Environmental Officer  u>v iKatimfchKt a>

            C    Anita niller. Mid-Atlantic Region    <7K.<7  (FTS-597-537S)
                  200 Chestnut Street, Room 502
                  Philadelphia. Pa 19106
              or
            D    Bill Patterson. Northeast Reoion      (NY)    (FTS-835-6856)
                  Poston Federal Office Building
                  10 Causeway Street Room 1022
                  Boston, Mass. 02222
              or

            D    Jim Lee. Southeast Region        (P R ,V i > (FTS-242-4524*
                  Pussel Federal Building. Suite 1320
                  75 Spring Street S.W.
                  Atlanta, Georgia 30303
            and

           DOC - NuAA Coastal Resource Coordinator
                  Thor Cutler.  EPA Region 2                (FTS-264-6325)
                  26 Federal Plaza, Room 734
                  New York City, New York 10278

            - Project Manager:	Phone:
              Chief:	Section:	Phone:_
        1 ) in accordance with Superfund Amendments and Reauthorization Act of 1986, $104 (b)(2)
           ano ?122'.J), th
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                               REGION II
                          26  rEDERAL PLAZA

                     NEW YORK. NEW  YORK 10278
  2) 5TAOE OF ACT ION-   "draft or Dfinal

  G  Preliminary assessment/ D site investigation or D ESI (extended site investigation)
  D immediate Removal D Expedited Response Action
  Q Work Plan
  D Renedia1 investigation
  D Endanqerment Assessment
  D Feasibility Study
  D POD
  DRD
  Q RA

  ACTION REQUESTED OF TRUSTEE.	
   SEPARATE OPERABLE UNITS? (name + description)
   3)RESPONSE CATEGORY    G  fund  0 enforcement  PRP.
     LEAD:   D Federal      D State       D Fed Facility

   4) D DOCUMENTS ATTACHED  (three copies to DOI. three copies to DOC) List names of
   document?'
   5) if trie following information is not contained in the attached documents, please provide

     LOCATION  US6S quad map w/location of site and directions to site
     (Quad name)	
     1-ITE EXPOSURE ROTENTI.ALCcopy exec, summary,EP!C,or relevant doc.)
     CHEMICAL HAZARDS and history of releases'! copy appropriate table; .lists;
                                 G1.2

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                  Memorandum of Understanding
                             Between
               The Environmental Protection Agency
                               and
                  The Department  of the Interior

               PRELIMINARY NATURAL  RESOURCE SURVEYS
    Purpose

The Department of the  Interior  (DOI) and the Environmental
Protection Agency (EPA) agree that  this memorandum of
understanding is necessary to support federal enforcement actions
pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act  of 1980, as amended (CERCLA), 42
USC Section 9601, et seg.  .  DOI will assist the United States
in reaching comprehensive settlements of all Federal claims under
CERCLA by conducting surveys at hazardous waste sites of natural
resources for which DOI acts as trustee.

2.  Authority

CERCLA Section 104(b)  and Executive Order 12580, Section 2(g),
authorize EPA to conduct investigations of releases or threats of
releases of hazardous  substances into the environment and other
necessary information  gathering to  enforce the provisions of
CERCLA.

CERCLA section 107(f)  (2) (A) authorizes the President to
designate Federal officials to  act  as natural resource trustees
on behalf of the public.  Executive Order 12580, Section 1 (c)
(4), and the National  Oil and Hazardous Substances Pollution
Contingency Plan (NCP), Subpart G (40 CFR Part 300), designate
the Secretary of the Interior as among those Federal officials
who shall act as trustee.

3.  Related Provisions
Sections 104 and 122 of CERCLA require EPA to notify trustees of
potential damages to natural resources resulting from releases
under investigation; to coordinate EPA's assessments,
investigations and planning with trustees; and to notify., trustees
of, and to encourage trustees to participate in, negotiations of
settlements at sites where there is  the potential for damages to
natural resources.  EPA agrees to implement these coordination
provisions with DOI.  The parties will address the coordination
provisions subsequent to the signing of this agreement.
                              G2.1

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4.   Scope

Under the authority of Sections 106, 107, and 122 of CERCLA,  the
United states may actively pursue the settlement of claims
against persons responsible for releases of hazardous substances
into the environment.  Such settlements may include covenants
not to sue responsible paries under CERCLA with respect to the
release of a hazardous substanc** ":hat is the subject of the
settlement.  The United States may provide a covenant not to sue
for damages to natural resources if the Federal trustee of the
affected resources gives written consent.  DOI is responsible for
determining whether to grant responsible parties a covenant not
to sue  for damages to natural resources for which it acts as
trustee or co-trustee.

Under this memorandum, DOI will conduct preliminary natural
resource surveys of sites under investigation or negotiation by
EPA and will notify EPA whether or not resources under its
trusteeship may 'e dam:, jed or threatened.  The Department of
Justice (DOJ) would not include in any settlement agreement(s) a
covenant not to sue for natural resource damages unless DOI so
authorizes in writing.

EPA agrees to reimburse DOI for the EPA approved costs of
assembling data regarding potentially affected natural resources,
if any, and providing such information to EPA in a format
appropriate for the enforcement action.  None of the funds
provided under this agreement shall be used to plan or conduct
natural resource damage.assessments or restorations.

5.   Priorities

EPA's Office of Waste programs Enforcement  (OWPE) will identify
to DOI's Office of Environmental Project Review  (OEPR), as early
as possible, any sites under investigation for enforcement or
subject to negotiation/ whether planned  or ongoing, where there
roay be damages to natural resources under DOI's  trusteeship.
EPA's Regional project Officers  (RPOs) will work with  the
appropriate DOI Regional Environmental Officers  (REOs) to
determine which 'hazardous waste sites so identified may require
Preliminary natural resource surveys.  EPA's RPOs, working with
DOI's REOs, will establish a priority list of sites needing such
surveys.  EPA's RPOs may amend the priority list of requested
surveys periodically.  OEPR will plan to conduct preliminary
surveys for the sites in the order of priority  identified  in  the
regional lists.  The EPA regional contact,  in consultation with
the appropriate DOI Regional Environmental Officer  (RED), may
Propose changes in the priority of sites within  that  region.
OEPR will notify the OWPE of any proposed  changes.
                             G2.2

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6.  Work Plans

OEPR will submit a work plan to the appropriate EPA RPO and to
OWPE detailing the scope of activity to be performed, the
schedule for such activity, and the cost o! each survey.  The
plan will be subnr^.ed no later than thirty (30) days after the
establishment of the priority list for preliminary surveys.  If
the 30-day limit cannot be met, OEPR.will notify OWPE, in
writing, of the cause of delay and the estimated additional time
necessary for completion.

OEPR will not commence any activity in the work plan until the
EPA RPO has notified OEPR in writing that the work plan is
acceptable, unless an emergency arises and either party seeks
initiation as soon as feasible.  EPA's notification will state a
maximum amount of reimbursement that will be allowed for each
survey included in the work plan.  The EPA RPO  will make this
notification within  (30) days of receiving the  work plan.  OEPR
may propose a revised work plan on the basis of the RPO-approved
reimbursement.  DOI will be entitled to reimbursement from EPA
beyond the maximum specified in the approved work plan, if an
amendment to the work plan is agreed upon/ in writing, by the EPA
RPO and OWPE.

7.  Schedule

OEPR will normally complete a preliminary natural resource survey
within sixty  (60) days of  the scheduled starting date established
in the work plan.  If the  schedule cannot be met, OEPR will
notify the  EPA RPO,  in writing, of the cause of delay and  the
estimated additional time  necessary for completion.   OEPR  should
contact  the EPA RPO  at least fifteen  (15) days  before the  end of
the initial 60-day period  if additional time is necessary.   By
mutual agreement, EPA may  request, and DOI may  conduct, a
preliminary survey on an expedited schedule.

8.  Survey  Procedures

OEPR will conduct preliminary natural resource  surveys according
to its own  procedures and  the approved work plan.  OWPE will
identify EPA's RPOs  who will, upon request, provide DOI's REOs
with information and assistance on preliminary  surveys, including
all relevant  technical documents, draft and final endangerment
assessments,  remedial investigations and  feasibility  studies
(RI/FS)  and remedial designs, covering all project segments,
whether  proposed by  EPA or by responsible parties.    Surveys will
be locally  directed, whenever feasible, by DOI's REOs.  OEPR may
also coordinate with other trustees  in conducting preliminary
surveys  when  appropriate.
                            G2.3

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9.   Reports and Documentation of Covenants Not to Sue

Within thirty  (30) days of completion of each preliminary natural
resource survey, OEPR shall submit to the EPA RPO and to OWPE a
summary report that includes a determination of the potential for
damages to natural resources under DOI trusteeship, the basis for
that conclusion, and a clear indication of any conditions DOI
might request prior to agreeing to a covenant not to sue for
natural resource damages.  OEPR will provide this information to
the extent possible based on information available at the time of
the survey.  OEPR may request additional information if necessary
to enable DOI to respond to OWPE.

Information on DOI's position concerning potential natural
resource damages shall remain confidential.  DOI will maintain a
file of findings of fact in support of this summary report.  The
summary report shall be protected under the principles of
deliberative process, attorney-client, and work-product.  DOJ or
DOI may  represent DOI's position in negotiations with
responsible parties.

DOI may agree to a written covenant not to sue for natural
resource damages, when requested.  DOI may propose modifications
of  the proposed remedial measure or Record of Decision as a term
or  condition before agreeing to a covenant not to sue.
Each DOI report will contain the EPA site identification number
and site name.   Where modifications of a proposed remedial
measure are required, EPA will consult DOI throughout the actual
implementation of such measures.  OWPE and OEPR will serve as the
contacts for issues related to this agreement.  DOI's agreement
with the terms of settlement or agreement to grant a release from
natural resource damages, or decision not to grant such a
release, will be conveyed by letter from the Solicitor of  the
Department of the Interior to the Assistant Attorney General for
Natural Resources of the Department of Justice.
10.   Reimbursement

Survey costs will be reimbursed on a site-specific basis through
an Inter-Agency Agreement  (IAG).  The allocations will be based
on OEPR's approved work plans and cost estimates, and will serve
as OEPR's budget for preliminary'surveys.

OEPR will be reimbursed for allowable preliminary survey costs
when they are incurred in  accordance with an  EPA approved work
Plan.  The following is a  list of allowable costs which are
reimbursable by the Fund:
                             G2.4

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          a)   Contractors  and  consulting  costs;
          b)   lease  or  rental  equipment;
          c)   supplies,  materials,  and  equipment  (including
               transportation costs) procured  for  a specific
               survey and expended  during  a  survey;
          d)   use  of DOI equipment  including  vehicles ~nd fuel;
          e)   DOI  salaries, travel  and  per  diem expenses directly
               related to a  survey  and not otherwise reimburseable
               by Superfund  under any other  agreement between DOI
               and  EPA.

Reimbursement  will be made  within  forty-five  (45) days after a
survey is completed  and  the EPA RPO has received  the report
referred to in paragraph 9  of  this  agreement.  EPA may allow a
follow-up survey under  this agreement for those sites where the
findings of the initial  preliminary survey  are insufficient for
DOI to determine whether to agree  to a  covenant not to sue. A
follow-up survey would  typically occur  during the Remedial
Design/Remedial Action  (RD/RA) negotiations and include a review
of the Ri/FS.  The costs for the follow-up  survey would be
incremental to those incurred  under the initial survey and must
be approved by the EPA RPO prior to its initiation.

H •  Accounting Requirements

EPA, acting as manager of the  Hazardous Substance Superfund,
requires current information on CERCLA  response actions and the
related obligations  of CERCLA  funds for these actions.  DOI will
submit to EPA a request  for reimbursement as  specified in the
IAG.  Such a request will include itemized  accounting of all
reimbursable costs incurred while conducting  each survey.
    is required to keep detailed financial accounts of all costs
incurred.  These accounts should include, but are not limited to
employee hours spent; receipts for materials, equipment or
supplies; travel and per diem expenses; and contract fees.  All
accounts shall be maintained on a site-specific basis.  Detailed
documentation on all preliminary survey costs must also be
available for audit, verification, or request of EPA's Inspector
General .
                            G2.5

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12,  Coordination of Investigations and Negotiations
By other means the parties will specify how OWPE and OEPR will
notify each other of and coordinate their assessments,
investigations, and planning.  In addition, EPA and DOI will
agree how OWPE will provide DOI notice of, and opportunity to
participate in, negotiations with responsible parties at
identified sites to facilitate resolution of resource-related
concerns through further investigations, governmental requests
for relief and the development of negotiating positions.

13.  Period of Agreement

This memorandum shall take effect immediately upo'n signature of
the parties and shall apply to all sites regardless of their
status as planned or pending.  It shall continue in effect until
modified or amended by the assent of both parties or terminated
by either party upon a 30-day written notice.  This agreement
will be reviewed by the parties every two years from its
effective date or whenever CERCLA may be further amended.
-Jr Winston Porter   /
Assistant Administrator for
  Solid Waste and Emergency
  Response
Environmental Protection
  Agency
 Joseph W.  Gorrell
 Principal  Deputy
   Assistant Secretary
   Policy Budget and
   Administration
 Department of the
   Interior
        /  i —
Date: //•
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APPENDIX H

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         APPENDIX H



          CONTACTS



(current as  of January 1988)

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                               CONTACTS


   Agencies:

JJ.S. Department of Interior

          Regional Environmental Offices.

          .  Department of the Interior
             10 Causeway St., Room 1022
             Boston, MA  02222
             (for NY) (617) 565-6856    FTS:

          .  Department of the Interior
             Custom House, Room 502
             200 Chestnut Street
             Philadelphia, PA  19106
             (for NJ) (215) 597-5378    FTS:
 835-6856
597-5378
             Department of the Interior
             Suite 1320, Russell  Federal  Building
             75 Spring Street, SW
             Atlanta, GA  30303
             (for Puerto Rico and Virgin  Islands) (404) 331-4524 FTS:  242-4524
          Fish and Wildlife Service Regional  Offices:

          .   US Department of Interior
             Fish and Wildlife Service
             One Gateway Center
             Suite 700
             Newton,  Corner,  MA  02158
             (for NY  & NJ)
             (617) 965-5100   FTS:  829-9200

          Fish and Wildlife Service,  Field  Offices:

          .   Fish and Wildlife Service
             P.O.  Box 534
             705 White Horse  Pike
             Absecon,  New Jersey  08201
             (609)  646-9310
            Fish and Wildlife  Service
            Division of Ecological Services
            100 Grange Place
            Cortlandl New York  13045
            (607) 753-9334
        Fish and Wildlife Service
        Richard Russell  Federal  Building
        75 Spring Street, SE
        Atlanta, GA  30303
        (for Puerto Rico and  Virgin  Islands)
        (404)  331-3588 FTS: 242-3588
        Fish  and  Wildlife  Service
        P.O.  Box  510
        Boqueron,  Puerto Rico   00622
        (809) 833-5760
       Fish and Wildlife Service
       Endangered Species Office
       274 Art Museum Drive
       Jacksonville, FL  32207
       (904) 791-2580 FTS: 946-2580
                                      H.I

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           U.S.  Department of the Interior
           National  Park Service
           143 South Third Street
           Philadelphia, PA  19106
           (215)  597-3503      FTS:  597-3503

 U.S.  Department  of  Commerce

           National  Marine Fisheries Service Offices;

           .   National  Marine Fisheries
              Service
              Environmental  Assessment Branch
              7 Pleasant Street
              Gloucester,  MA  01930
              (617)  281-3600

          Office of Coastal  Zone  Management
          Herbert Hoover  Building
          14th Street  and Constitution Avenue, N.W.
          Washington,  D.C.   20230-0001
          (202) 634-4132
 National Marine  Fisheries Service
 Environmental Assessment Branch
 Duval Building
 9450 Gandy  Street
 St. Petersburg,  Florida  33702
 (813) 893-3141
U.S. Army Corps of Engineers

          Division Offices:
             North Atlantic Division
             90 Church Street
             New York, New York  10278
             (212) 264-0222
         [also contact appropriate district office]

U.S. Department of Agriculture

          Soil Conservation Service Offices:

          .   Soil Conservation Service
             State Conservationist
             1370 Hamilton Street
             P.O. Box 219
             Somerset, New Jersey  08873
             (201) 526-2701
South Atlantic Division
510 Title Building
30 Pryor Street, S.W.
Atlanta, Georgia  30303
(404) 331-6715
Soil Conservation Service
State Conservationist
100 Clinton Street
Syracuse, New York
(315) 469-5034
                                    H.2

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                .   Soil  Conservation  Service
                   Caribbean Area  Office
                   Federal Office  Building
                   San Juan, Puerto Rico  00917
                   (809)  753-4206
                   (809)  753-2851

                Forest Service Office:

                .   Forest Service
                   Regional Forester
                   1720  Peachtree  Road, NW
                   Atlanta, 6A  30367
                   (404) 347-4177

     Federal Emergency Management Agency

               Insurance and Mitigation Branch
               26  Federal Plaza
               New York, New York  10278
               (212) 264-8980
Commissions:
               Delaware River Basin Commission
               Box 7360
               West Trenton, NJ  08628
               (609) 883-9500
               Pinelands Commission
               P.O.  Box 7
               New Lisbon, New Jersey
               (609) 894-9342
08064
State Agencies:

     New Jersey  Department of Environmental  Protection

              Division of Fish,  Game and Shell fisheries
              P.O.  Box 1809
              Trenton, New Jersey  08625
              (609)  292-2965,  5546

              Division of Coastal  Resources
              P.O.  Box 1889
              Trenton, New Jersey  08625
              (609)  292-2795

              Division of Water  Resources
              P.O.  Box CN-029
              Trenton, New Jersey   08625
              (609)  292-2203
                                         H.3

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           Office of New Jersey Heritage
           Room 707
           Labor and Industry Building
           John Fitch Plaza
           Trenton, NJ  08625
           (609) 292-2023, 2121

 New Jersey Department of State

           New Jersey State Museum
           Bureau of Archaeology and Ethnology
           215 West State Street
           Trenton, NJ  08625
           (609) 292-8594, 6300

 New York State Department of Environmental  Conservation

           Division of Fish and Wildlife
           Delmar,  New York  12054
           (518) 439-7486

           Division of Flood Control
           South Wolf Road
           Albany,  New York  12223
           (518) 457-3157

           Cultural  Resources  Section, Room  432
           Construction  Grants  Management Division
           50  Wolf  Road
           Albany,  New  York  12233-0001
           (518) 457-3891

New York State  Historic  Preservation Office (SHPO)

           Division  of Historic Preservation
           Office of Parks, Recreation and Historic Preservation
           Agency Building  #1,  13th Floor
           Empire State Plaza
           Albany, New York  12238
           (518) 474-0479

New York Department of State

           Coastal Management Program
           State of New York
          Albany, New York  12231
           (518) 474-8834
Puerto Rico
          Puerto Rico Department of Natural  Resources
          P.O.  Box 5887
          Puerto de Tierra
          San Juan, Puerto Rico  00906
          (809)  724-8774
                                   H.4

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          Puerto Rico Environmental Quality Board
          204 del Parque
          Santurce, Puerto Rico  00907
          (809) 725-3708

          Puerto Rico Office of Cultural Affairs
          Office of Historic Preservation
          P.O. Box 82
          San Juan, Puerto Rico 00901
          (809) 721-3737

Virgin Islands Department of Conservation and Cultural Affairs

          Division of Natural Resources
          P.O. Box 4399
          St. Thomas, VI  00801
          (809) 774-3320

          Division of Coastal Zone Management
          P.O. Box 4340
          St. Thomas, Virgin Islands 00801
          (809) 774-3320

          Division of Fish and Wildlife
          P.O. Box 4339
          St. Thomas, Virgin Islands  00801
          (809) 775-6762

          Bureau of Libraries and Museums
          Box 390
          St. Thomas, Virgin Islands  00801
          (809) 774-3407

          Unit for Archaeology and Historic Preservation
          State Historic Preservation Office (SHPO)
          129-133 Sub Base
          Chinnery Building
          St. Thomas, Virgin Islands 00802
          (809) 774-7859
                                 H.5

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