United Stales
Environmental Proteciion
Agency
Ofttoc a,
Solid Wasie ana
Emergency Response
DfRECTIVE NUMBER
9610.9
TITLE: Interim Guidance on Conducting Federal-Lead,
Underground Storage Tank Corrective Actions
for Petroleum Releases on Indian Lands .
JUL 3 I 1989
3 I 1989
Office of Underground Storage
iks
APPROVAL DATE:
EFFECTIVE DATE:
ORIGINATING OFFICE:
E FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OSWER Directive 9360.0-16A, Guidance for Conducting
Federal-Lead underground Storage Tank Corrective Actions.
OS WER OS WER OS WER
DIRECTIVE DIRECTIVE Dl
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Unned States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DfRECTIVE NUMBER: 9610.9
TITLE: Interim Guidance on Conducting Federal-Lead,
Underground Storage Tank Corrective Actions
for Petroleum Releases on Indian Lands.
APPROVAL DATE: JUL 3 |
EFFECTIVE DATE:
ORIGINATING OFFICE: Office of Underground Storage
0 FINAL ^
D DRAFT
STATUS:
REFERENCE (other documents):
OSWER Directive 9360.0-16A, Guidance for Conducting
Federal-Lead Underground Storage Tank Corrective Actions.
OSWER OSWER OSWER
T DIRECTIVE DIRECTIVE Dl
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United States Environmental Protection Agency
Washington. DC 20460
I A rDA Washington. DC 20460
lotrA OSWER Directive Initiation Request
1. Directive Number
9610.9
Mame of Contact Person
Mark C. Waiwada
[Inator Information
Mail Code
OS-420
OUST
Telephone Code
(202) 475-9727
13. Title
__
Interim Guidance on Conducting Federal-Lead Underground Storage Tank Corrective
Actions for Petroleum Releases on Indian Lands.
4" Summary o( Directive (include brief statement of purpose)
The guidance provides direction to on-scene-coordinators, UST Regional program managers
and otter Regional personnel for approving and carrying out Federal response to UST
releases on Indian Lands.
l5-K5nderground Storage Tanks, Indian Lands, Federal-Lead, Corrective Action, Petroleum
us Direcuve(s)?
6a. Does this Directive Su
b. Does It Supplement Previous Oirectlve(s)?
j |
Yes What directive (number, title)
Yes What directive (number, title)
Conducting Federal-Lead UST
D - In Dwetopment
C - For Review & Comment
B - Signed by Office Director
Yes X NO
Oocumentto be distributed to States by Headquarters?
THIS Request Meets OSWER Directive System Format Standards.
9. Signature o1 Lead Office Directives Coordinator ^ •
Director. Office O
•PA Form 1315-17 (Rev. S-87) Previous editions are obsolete.
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUL 3 I
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
"OSWER DIRECTIVE 9610.9
MEMORANDUM
SUBJECT: Final Interim Guidance for Conducting Federal-Lead UST
Corrective Actions on Indian Lands
FROM: Ron Brand, Director
Office of Underground Storage Tanks
TO: Hazardous Waste Division Directors, Regions 1-3, 5-9
Water Division Directors, Regions 4 and 10
Superfund Branch Chiefs, Regions 1-10
OHM Coordinators, Regions 1-10
Timothy Fields Jr. , Emergency Response Division,
OERR (WH-548B)
Lisa Friedman, Office of 'General Counsel (LE-132S)
Attached is a copy of the final "Interim Guidance on
Conducting Federal-Lead Underground Storage Tank Corrective
Actions For Petroleum Releases on Indian Lands." The guidance
discusses the procedures and documentation that are necessary for
approving and carrying out Federal responses to UST releases on
Indian Lands. This document supplements guidance on Federal-lead
corrective, actions for States (OSWER Directive 9360.0-16A), which
does not address Indian Land releases.
In developing this guidance, the legal situation of Indian
Lands and the limited capabilities of Indian Tribal authorities
for undertaking or overseeing corrective actions was taken into
consideration. Based on these considerations, this guidance
gives EPA the flexibility to respond to types of releases not
covered under the guidance for Federal-lead corrective actions in
States .
The guidance incorporates comments made to the draft
document. Changes to the draft include:
The reference in the draft to a "limited" number of
releases has been deleted and the final guidance
specifies that the extent of the LUST problem on Indian
Lands will be determined through the on-going pilot
project and other information gathering efforts.
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OSWER DIRECTIVE 9610.9
The final guidance specifies that Regional attorneys
and circuit riders, if applicable, should assist in
gathering information necessary to make a written
request for a Federal-lead corrective action.
The final guidance also specifies that EPA's goal is to
encourage Indian Tribes to undertake RP searches and
negotiations to secure owner or operator action, and
that EPA will work cooperatively to achieve compliance,
A major concern of several of the commenters was that the
guidance was limited to short-term corrective actions. Because
of our lack of knowledge on the extent of the problem on Indian
Lands and of the ability of Indian Tribal authorities to
undertake or oversee long-term corrective actions, the final
guidance is still limited to "time-critical" responses to Indian
Lands (i.e., releases that may require response within six
months). Long-term corrective actions will be addressed on a
site-by-site basis. Guidance for long-term corrective actions
will be issued when the extent of the problem on Indian Lands is
more fully understood, and when more information on the
capability of Indian Tribal, authorities to undertake or oversee
corrective actions is available.
Implementing an effective, efficient clean-up program on
Indian Lands is a necessary component of the national LUST
program. This guidance is a first step in an on-going effort to
implement such a program. If you have any questions concerning
this guidance, please contact Mark Waiwada on FTS-475-9727.
cc: UST Regional Program Managers
UST Regional Attorneys
John Riley, ERD (WH-548B)
Bruce Englebert, ERD (WH-548B)
Betty Zeller, ERD (WH-548B)
Kirsten Engel, OGC (LE-132S)
OUST Management Team and Desk Officers
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OSWER DIRECTIVE 9610.9
INTERIM GUIDANCE ON CONDUCTING FEDERAL-LEAD
UNDERGROUND STORAGE TANK CORRECTIVE ACTIONS
FOR PETROLEUM RELEASES ON INDIAN LANDS
1.0 INTRODUCTION
1.1 Purpose
This guidance document is designed to provide direction to
On-Scene Coordinators, Underground Storage Tank (UST) Regional
Program Managers, and other Regional personnel for the initiation
and coordination of Federal-lead corrective actions on Indian
Lands in response to petroleum releases from UST systems. The
guidance discusses the procedures to be followed, including how
to determine whether Federal-lead corrective action is justified,
and what documentation is necessary for undertaking Federal-lead
UST corrective actions on Indian Lands.
This interim document supplements the guidance for
conducting Federal-lead UST corrective actions for states (OSWER
Directive 9360.0-16A) which does not address releases on Indian
Lands. Although this interim guidance does address releases on
Indian Lands, it is limited to time-critical releases and does
not cover long-term corrective actions. The final guidance
document will address long-term corrective actions when the need
for such actions is established. The purpose of our ongoing
Indian Lands pilot projects is to gather information about USTs
on Indian Lands in order to assess the extent of the UST problem
and the capability of Indian Tribes to address the problem. To
develop the final guidance document, we will assess the
information gathered through the pilot projects and other
information gathered on actions initiated under this interim
guidance.
1.2 Background
Section 205 of the Superfund Amendments and Reauthorization
Act (SARA) amends Subtitle I of the Resource Conservation and
Recovery Act (RCRA) to give EPA and States, under cooperative
agreements, the authority to conduct corrective actions in
response to petroleum releases from USTs. Such corrective
actions are funded by monies from the Leaking Underground storage
Tank (LUST) Trust Fund. However, SARA does not explicitly
provide EPA with the authority to enter into LUST Trust Fund
cooperative agreements with Indian Tribes.
Preliminary assessments indicate that the total number of
USTs on Indian Lands is small (0.3 percent of the Federally
regulated UST universe). Further assessments, including those
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OSWER DIRECTIVE 9610.9
based on the information gathered during the Indian Lands pilot
projects, will generate a more accurate estimate of the total
number of USTs on Indian Lands and the likelihood of releases
occurring from these tanks. While this document is limited to
"time-critical" responses on Indian Lands (i.e., releases that
may require response within 6 months), guidance for longer-term
corrective actions will be issued when the extent of the problem
on Indian Lands is more fully understood.
1.3 Policy
The national UST program is implemented at the State level.
States that have cooperative agreements with EPA may carry out
Fund-financed responses to releases from leaking USTs. Our role
is to provide guidance and support to the States in their
development of State UST programs. We will lead a Fund-financed
response in a State only in limited circumstances, i.e., when
there is a major public health or environmental emergency, if the
owner or operator is unwilling or unable to respond, and if the
State is unable to respond.
Because of the state-centered design of the UST program,
Indian Lands present a unique situation for EPA. We do not have
the statutory authority to enter directly into LUST Trust Fund
Cooperative agreements with Indian Tribes, and most States do not
have the authority to run environmental programs on Indian Lands.
Our goal is for Indian Tribes to develop and implement programs
similar to those carried out by States. Mechanisms for allowing
Indian Tribes to directly access the LUST Trust Fund are being
investigated. In addition, we are examining the willingness and
capability of Indian Tribes to develop and implement such
programs.
During this period we are prepared to respond to emergency
LUST releases on Indian Lands. To trigger Federal-lead action,
an Indian Lands site must pose a time-critical, either immediate
or near-term, substantial threat to human health or the
environment; the Indian Tribe must be unable to respond; and
the owner or operator must be unable or unwilling to provide
adequate and timely response. Because many Indian Tribes lack
the capability for overseeing or conducting corrective actions,
the criteria for initiating a Federal response to releases on
Indian Lands are broader than those set forth in the guidance for
Federal-lead corrective actions in states. Federal response in
States is limited to "classic" emergencies (i.e., the release
immediately threatens human health or the environment and
requires response within hours or days). On Indian Lands,
however, Federal response may occur in situations where immediate
action is not necessary but the release is considered time-
critical and may require a response within 6 months.
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OSWER DIRECTIVE 9610.9
Federal-lead corrective actions for UST releases will be
performed by the same EPA emergency response and contractor
personnel that conduct oil and hazardous substance removal
actions under the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) and Section 311 of the
Clean Water Act. Similar removal-type actions that are
appropriate for a Federal response to an UST release on Indian
Lands include, but are not limited to, the following:
• Site investigations or exposure assessments to
determine potential health effects of a leak and to
establish corrective action priorities;
• Ventilation of fumes from a residence or other
building;
• Construction of fences, warning signs, or other
security or site control precautions;
• Removal of a tank or free product;
• Emptying of a leaking UST or removal of contaminated
soils;
• Construction of an intercepting ditch;
• Provision of alternative water supplies; and
• Temporary relocation of affected residents.
Under this guidance. Federal-lead corrective action on an
Indian Lands site will be terminated when the threat to human
health and the environment has been mitigated. Release
situations for which longer-term corrective actions are
necessary, such as ground-water cleanup, may require a response
that is beyond the capabilities of EPA's removal personnel. We
will address long-term corrective action under separate guidance
when the need for such action is established.
For time-critical actions, efforts will be made to involve
Indian Tribe authorities in cleanup decisions. Prior to
initiating a Federal response action, On-Scene Coordinators
(OSCs) and UST Regional personnel should rely on Indian Tribal
authorities to gather as much information as possible about the
site and owners and operators.
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OSWER DIRECTIVE 9610.9
2.0 CRITERIA FOR FEDERAL-LEAD RESPONSE
To qualify for Federal-lead response, an Indian Lands site
must meet the legislative criteria specified in Section 9003(h)
of Subtitle I of RCRA and the site must pose a time-critical
(i.e., an immediate or near-term), substantial threat to human
health and the environment. More specifically, the site must
meet at least one of the following criteria:
• The release poses a time-critical, either immediate or
near-term, substantial threat of direct human, animal,
or food chain exposure to petroleum;
• The release poses a time-critical, either immediate or
near-term, threat of fire or explosion;
• The release poses a time-critical, either immediate or
near-term, substantial threat to public drinking water
supplies; or
• The release poses a time-critical, either immediate or
near-term, threat to a significant population or
substantial amounts of property, or poses a substantial
threat to natural resources.
These criteria have been expanded from those requiring a
"major" emergency Federal-lead response in States. These broader
criteria allow EPA to respond to a wider range of releases on
Indian Lands. Specifically, "near-term threat" has been added to
these criteria to allow for Federal-lead response at sites that
pose a less immediate, but still substantial threat. Immediate
and near-term threats are defined as follows:
• immediate threat; A release requires response within
hours or days of discovery. Examples include potential
or actual UST explosions or fires, or a release that is
contaminating a water supply for which there is no
readily available alternative.
• Near-term threat; The release is time-critical, and
may require response within 6 months. An example
includes a slow release of petroleum spreading at a
rate that will contaminate residences within 6 months.
Since the OSC must give priority to responding to classic
emergencies, both in the removal program under CERCLA as well as
the LUST program, response to less urgent LUST removals will
depend on the availability of staff and resources.
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OSWER DIRECTIVE 9610.9
3.0 DELEGATIONS
Delegating the authority for initiating Federal-lead
corrective actions on Indian Lands follows the same procedures as
those specified in the guidance for Federal-lead corrective
actions in States. Federal-lead UST corrective actions that
initially cost over $250,000 require approval of the Assistant
Administrator (AA), Office of Solid Waste and Emergency Response
(OSWER). The Office Director (OD) of the Office of Emergency and
Remedial Response (OERR) will approve actions that initially cost
up to $250,000 and will approve ceiling increases that bring the
cost of an action up to $250,000, with concurrence from the OD,
Office of Underground Storage Tanks (OUST).
In addition, Regional Administrators (RAs) may approve
actions costing up to $50,000 in acute, life-threatening
situations where response must be initiated before Headquarters
can be contacted. This authority may be redelegated to Division
Directors and OSCs.
4.0 APPROVAL PROCESS
The approval process for Federal-lead corrective actions on
Indian Lands is essentially the same as that for Federal-lead UST
corrective actions taken in States. However, on Indian Lands,
EPA Regional personnel are also responsible for assisting in the
initial evaluation of the site and the gathering of information
necessary to support a request for Federal action.
To request Federal-lead corrective action, the Regional Oil
and Hazardous Materials (OHM) Coordinator, or other designated
Regional management official must be notified that a release has
occurred. The UST Regional Program Manager will gather
information about the site through the Indian Tribe and other
Federal agencies, such as the Bureau of Indian Affairs and the
Indian Health Service, and will evaluate all attempts made by the
Indian Tribe to locate the responsible party (RP). The assigned
OSC and the UST Regional Program Manager will determine whether
the site qualifies for a Federal response. If insufficient
information about the site is available from outside sources, the
OSC, in coordination with the UST Regional Program Manager, may
conduct a site assessment if available information provides
sufficient reason to warrant such a visit. To use the Technical
Assistance Team (TAT) on a site assessment, the OSC must obtain
Headquarters approval as prescribed in OSWER Directive 9360.0-16A
(Section 6.2.1).
Requests for Federal-lead corrective action can either be
oral, for sites requiring action within hours or days, or
written, for those sites that do not require immediate action.
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OSWER DIRECTIVE 9610.9
4.1 Oral Request
An oral request should be used in a case where an emergency
situation occurs that presents an immediate threat of death,
injury, or catastrophic environmental damage due to a petroleum
release from an UST (see Exhibit 1).• The OSC may take immediate
action to address the situation, using the RA»s authority to
approve emergency obligations of up to $50,000.
When possible, the OSC, in conjunction with the UST Regional
Program Manager, will get approval from the RA or the RA»s
representative to request approval from Headquarters, as
prescribed in OSWER Directive 9360.0-16A. The OSC provides oral
request information to Headquarters (see Appendix A of this
guidance). This information is similar to that required for an
oral request for Federal-lead corrective action in States, except
that additional information is required of the Tribal authority
reporting the release and having jurisdiction over the site. If
the request is approved, the UST Regional Program Manager, in
conjunction with the OSC, prepares an action memorandum within 10
days of initiating a response. This memorandum contains more
detailed information about the site (see Appendix B).
4.2 Written Request
The UST Regional Program Manager, in conjunction with the
OSC, will gather all information necessary to support a request
for Federal-lead corrective action and will prepare an action
memorandum (see Appendix B). This action memorandum is similar
to that required for a written request for Federal-lead
corrective action in states. However, it also requires
information on the Indian Tribe's capacity to oversee or conduct
corrective actions and information on why the site meets the
criteria for Federal response on Indian Lands. Regional
attorneys and circuit riders, if applicable, should assist in
gathering this information. The action memorandum is reviewed by
the Emergency Response Division (ERD) Regional Coordinator and
other appropriate Headquarters officials prior to approval as
prescribed in the guidance for Federal-lead corrective actions in
States. The ERD Regional Coordinator will communicate to the
Region as quickly as possible the decision to approve or deny the
action (see Exhibit 1).
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OSWER DIRECTIVE 9610.9
EXHIBIT 1
PROCEDURE FOR REQUESTING FEDERAL-LEAD
CORRECTIVE ACTION ON INDIAN LANDS
Oral Request*
Written Request
OSC (In conjunction with the
UST Regional Program Manager)
obtains approval from RA
to contact Headquarters.
i
OSC provides oral request
Information to Headquarters
(see Appendix A) and obtains
approval for Federal-lead
corrective action.
I
Response to emergency
Initiated.
OSC and UST Regional Program
Manager prepare action
memorandum (see Appendix B)
within 10 days of initiating
response.
UST Regional Program
Manager and OSC gather all
Information necessary to
support a request for
Federal-lead corrective
action.
i
UST Regional Program
Manager and OSC prepare
action memorandum (see
Appendix B).
I
ERD Regional Coordinator
and other appropriate
Headquarters officials
approve the action.
Corrective action initiated.
Oral requests should be made in case of an emergency in which
there exists an immediate threat of death, injury, or catastrophic
environmental damage due to a petroleum release from an UST.
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OSWER DIRECTIVE 9610.9
5.0 ENFORCEMENT ACTIONS
Enforcement actions should be taken to ensure that every
attempt is made to compel the owner or operator to respond to the
release. Our goal is to encourage Indian Tribes to undertake
Responsible Party (RP) searches and negotiations to secure owner
or operator action. We will work cooperatively with Tribal
authorities to achieve compliance. Depending on the availability
of time and resources, the OSC may undertake initial RP searches
and preliminary discussions with RPs, if necessary, to secure
owner or operator action. Subsequent enforcement actions against
RPs, including cost recovery, should be coordinated by Regional
UST personnel in conjunction with other responsible EPA offices.
6.0 INITIATING AND MANAGING FEDERAL-LEAD LUST CORRECTIVE ACTION
The procedure to be followed for initiating and managing
Federal-lead corrective action on Indian Lands (including
information required) are the same as those specified in OSWER
Directive 9360.0-16A. This covers procedures for managing
accounting information, procuring EPA contractor and other
services, and obtaining assistance from other agencies. It also
includes information and procedures for allowable costs,
stabilization standards, ceiling increases, reporting
requirements, and operation and maintenance.
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OSWER DIRECTIVE 9610.9
APPENDIX A: ORAL REQUEST INFORMATION
1. What is the location of the release?
2. What is the type and estimated amount of petroleum released
to the environment?
3. What is the number and proximity of persons potentially
affected?
4. Describe the increased threat to human health or the
environment if response is delayed or denied.
5. Specify the time and date the,release was discovered.
6. Provide the name, description, and general condition of
facility.
7. Is the release a long-term or chronic problem?
8. Is the release from a leaking underground storage tank (see
definition in section 9001(1) of SWDA)?
9. Is the released material a petroleum substance (see
definition in Section 9001(8) of SWDA)?
10. Describe the ongoing efforts to respond to the release.
11. What Indian Tribal authority has jurisdiction over the site?
12. Are there other authorities that have jurisdiction over the
site (e.g., Federal, State or local)?
13. Is the person requesting a Federal-response an official
representative of the Indian Tribe? If so, in what capacity
does he or she serve?
14. Has the Tribal authority given permission for a Federal
response?
15. Does the Indian Tribe have its own legislative authority
that covers this release?
16. Does the Indian Tribe have any formal agreement/relationship
with the State regarding UST cleanups or UST related
programs that would allow the State to respond?
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OSWER DIRECTIVE 9610.9
17. Which of the criteria for Federal-lead response on Indian
Lands in section 2.0 does the release meet?
18. What is the Tribal authority's ability and willingness to
provide a response? Provide specific reasons for its
inability to respond (e.g., lack of authority, technical
expertise, qualified staff, or funding).
19. Describe the efforts undertaken to locate the Responsible
Party (RP) and pursue an RP-financed cleanup.
20. What type of action is needed to mitigate or stabilize
emergency (if known)?
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OSWER DIRECTIVE 9610.9
APPENDIX B: ACTION MEMORANDUM
The Regional UST Program Manager must submit an action
memorandum to initiate approval of a written request for Federal
action on Indian Lands. This should be done jointly with the
OSC. The memorandum must also be submitted within 10 days of an
oral request. In addition to the topics specified below, the
action memorandum should address all of the topics outlined in
Appendix C of OSWER Directive 9360.0-16A, "State Request Letter
Format." References to a State or local implementing agency in
Appendix C of OSWER Directive 9360.0-16A should be changed to
Indian Tribal authority.
The Regional UST Program Manager and the OSC should attempt
to gather the necessary information through Indian Tribal
authorities and other sources. If the information necessary to
substantially complete the action memorandum is unavailable from
these sources, an on-site evaluation/investigation may be
undertaken.
I.
HEADING
DATE:
SUBJECT:
FROM:
TO:
[Month/Day/Year]
Request for Emergency Federal-Lead UST Corrective
Action on Indian Lands
[Site]
ACTION MEMORANDUM
[Regional Administrator]
[Director, OERR]
II. BACKGROUND
The background section should contain information on the
location of the site, the nature of the incident (including the
history of the site, general character of the site, and issues
relevant to petroleum management), quantity and types of
petroleum substances released, Indian Tribal authority's role,
the cleanup time frame, and any actions to date, including
previous and current actions to abate the threat. For specific
instructions on these sections see OSWER Directive 9360.0-16A,
Appendix C.
B-l
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OSWER DIRECTIVE 9610.9
A. Location Description
B. site and Incident Characteristics
C. Quantity and Types of Petroleum Substances Present
D. Indian Tribal Authority Capacity
1. Describe the capacity of the appropriate Indian Tribal
authority to oversee/conduct corrective actions.
• Has the Tribal authority ever overseen/conducted an UST
cleanup or petroleum spill cleanup?
• Has the Indian Tribal authority had experience with
other EPA, State, or local environmental programs?
• Has the Indian Tribal authority had applicable
experience in overseeing contractors?
E. Actions to Date
III. CRITERIA MET FOR TIME-CRITICAL FEDERAL-LEAD CORRECTIVE
ACTION ON INDIAN LANDS
The criteria specified in section 2.0 must be met to justify
Federal response to a petroleum UST release on Indian Lands.
Specific reasons why the site meets that criteria should be
discussed in this section. Also include the name and position of
the person in the Tribe requesting a Federal response.
IV. ATTEMPTS MADE AT SECURING OWNER/OPERATOR CLEANUP
See OSWER Directive 9360.0-16A, Appendix C, section IV.
V. EXPECTED CHANGE IN THE SITUATION SHOULD NO ACTION BE TAKEN
OR SHOULD ACTIONS BE DELAYED.
See OSWER Directive 9360.0-16A, Appendix C, section V.
VI. TYPE OF ACTION REQUESTED
See section 1.3.
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