Unrtta Suits environmental ?nt«ction Agency
Wuiwtgion OC 2Q«10
OSWER Directive Initiation Request
of Comae: Parson —
Elizabeth Zeller
2. QflBlmtar informitlan
uir«ciiwa Nwflwer
9360.0-19
OS-210
.Cffiet
I 382-7735
nor i Coot
Guidance on Non-NPL Removal Actions Involving Nationally Significant
or Precedent Setting Issues
suitrr
Provides guidance for identifying non-NPL removal aations that
may be nationally significant or precedent-setting and establishes
procedurse for requesting HQ concurrence. Outlines procedural requierments
for five categories of removals which are of special interest from a national
po^p^f-j^ hut- uhirh'arp nnr snhippf m HP rnnrnrrence requirement for
* &ip«rfund,CEPQA.SARA, nationally significant or precedent setting removals
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3/3/89
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>WER OSWER OSWER C
DIRECTIVE DIRECTIVE DIRECTIVE
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S’ p
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON. D.C. 20460
4 9
MAR -31989
— O CE
MEMORANDUM SOLIC WASE AND EMERGENCy RESPONSE
SUBJECT: Guidance on Uon-NPL Removal Actions Involving Nationally Significant
or Precedent-Setting Issues (OSWER D re lye 9360.0—19)
FROM: Henry L. Longest II, Director
Office of Emergency and Remedial R
TO: Director, Waste Management Division
Regions I, IV, V, VII, VIII
Director, Hazardous Waste Management Division
ReQions III, VI
Director, Emergency and Remedial Response Division
Region II
Director, Toxics and Waste Management Division
Region IX
Director, Hazardous Waste Division, Region X
Director, Environmental Services Division
Regions I, VI, VII
Purpose :
This memorandum transmits guidance for identifying non-NPL removal actions
that may be nationally significant or precedent-setting and establishes
procedures for requesting Headquarter-s (HQ) concurrence. The guidance also
outlines procedural requirements for five categories of removals which are of
special interest fro; a ruational perspective, but whicn are not subject to the
HQ concurrence requirement for nationally significant or precedent-setting
removals.
Background :
Delegation 14-1-A (February 1987) and OSWER Directive 9360.0-12
(April 1987) require the concurrence of the Assistant Administrator for Solid
Waste and Emergency Response (AA, OSWER) prior to initiation of removal actions
taken at non-NPL sites where the proposed action is of national significance
or precedent-setting. Redelegation R-14-1-A transfers authority to concur to
the Director of the Office of Emergency and Remedial Response. (OD, OERR);
-authority to non-concur remains with the AA, OSWER. The purpose of the
concurrence requirement is to promote national consistency in the implementa-
tion of the Superfund removal program.
It is not anticipated that a large number of removal actions will pose
issues requiring HO concurrence. Assessment of the potential long—term
implications of initiating certain removal actions is largely interpretive,
however, and Re ional personnel should consult this guidance whenever
considering a removal action at a non-NPL site.
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OSWER DirectIve 9360.0-19
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Objective :
The objective of this guidance is to ensure Regional compliance with HQ
concurrence requirement for non-NPL removal actions involving nationally
significant or precedent-setting issues. This document identifies categories
of potential removal situations which have been determined to be of national
significance or precedent—setting and specifies procedures for requesting HQ
concurrence on these actions. The guidance also identifies categories of
removals subjerct to special procedural requirements but not to the HQ
concurrence requirement.
The types of removals subject to the concurrence requirement are not
limited to those categories identified in the guidance. These categories are
to be used by the Regions as a guide for screening proposed removals at non-NPL
sites that may require HQ concurrence. Since evaluation of these sites is
largely interpretive, final determinations regarding removals of a nationally
significant or precedent-setting nature should Involve consultation with
Emergency Response Division (ERD) Regional Coordinators.
This interim fmal guidance is effective irrvnediately. Additional revisions
to the guidance will be considered as experience is gained and/or further
policies are established that may affect the established categories and the HQ
concurrence mechanisms.
Implementation :
I. NATIONALLY SIGNIFICANT OR PRECEDENT-SETTING CATEGORIES
Six c tegories of removals have been designated a r etionelly significant
or precedent-setting. The list is not exhaustive and early consultation with
the Emergency Response Division (ERD) is reconnended where there are questions.
In making the determination, the key considerations are:
(a) whether Fund-financed response to a particular incident will establish
a precedent for when or how future response actions must be taken; or
(b) w ethera response will comit EPA to a course of action that could
have a significant impact on future resources, due to the widespread
occurrence &f a particular problem.
The categories identified and the rationale for identification are as
follows:
1. Removal actions at sites within the United States or Its territories
involving contamination or response actions that may affect other sovereign
nations, including Indian tribes.
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OSWER Directive 9360.0-19
-3-
Rationale : HQ concurrence will facilitate the execution of proper
diplomatic protocol by the Department of State, and proper coordination
with Indian tribes, the Bureau of Indian Affairs, the Indian Health
Service, and other appropriate organizations, where applicable.
2. Removals Involving pesticide contamination arising from:
- in roper storage of pesticide products awaiting Indemnification
- lawful application of pesticides, including special local use
pesticides
- grain fumigation operations.
Rationale : HQ concurrence will ensure that the Agency avoids coi’riitment
to cleanup of widespread contamination beyond the intended scope of
CE RCL A.
3. Removal actions at sites involving any form of dioxin when It Is one of
the principal contaminants of concern.
Rationale : HO concurrence will ensure national consistency in dioxfn
cleanup. The Dioxin Disposal Advisory Group (DDAG) in HQ must review all
dioxin removal actions to verify that the proposed action will provide an
acceptable level of protection from dioxin exposure.
4. Removal actions at sites involving releases from consumer products in
consumer use (e.g., lead-contaminated soil resulting from peeling lead-
based paint on houses).
Rationale : HO concurrence will ensure that the Agency avoids a conriitment
to the c1ear up of widespread non-point source contamination that is beyond
the intended scope of CERCLA.
5. Removals involving asbestos when it is the principal contaminant of
concern.
Rationale : HQ concurrence remains necessary because action levels for
response have not yet been set and these determinations are being made on
a case—by-case basis.
6. Removal actions involving substances or releases which may be subject to
statutory exclusions or limitations in CERCLA. These Include:
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OSWER Directive 9360.0—19
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- substances excluded from Fund-financed response under the SARA
sectIon 101(14) definition of hazardous substance (e.g.,
petrolewn products Including crude oil, and natural gas or
synthetic gas usable for fuel);
- releases excluded from Fund—financed response under the SARA
section 101(22) definition of release (e.g., emissions from the
engine exhaust of motor vehicles; releases of radioactive material
from a nuclear incident; and releases caused by normally applied
fertilizer);
- releases excluded from Fund—financed response under SARA section
104(a)(3) including releases of a naturally occurring substances;
releases from products that are part of a structure and result In
exposures within the structure; and releases In public or private
drinking water supplies due to system deterioration from ordinary
use.
Specific examples of substances or releases that have raised statutory
interpretation or related policy Issues with respect to their eligibility
for CERCLA removal action include radon contamination in building
structures, pentachiorophenol (PCP) contamination in log cabins, releases
from coal gasification facilities, methane gas releases, and asbestos in
building materials in homes.
Rationale : HQ concurrence will ensure that statutory exclusions and
limitations are interpreted in a consistent manner. HQ concurrence will
also ensure consistent application of EPA’s authority under CERCLA section
104(a)(4) to respond to any release or threat of release if it constitutes
a public health or environmental emergency and no other person will
respond in a timely manner.
Concurrence Procedures
Early screening for issues of a nationally significant . r precedent-
setting nature is essential to ensure timely HQ concurrence when necessary.
OSCs should contact .the appropriate ERD Regional Coordinatp when a possible
nationally significant or precedent-setttng removal action is first Identified,
to alert the Regional Coordinator that a request for HQ concurrence will be
forthcoming. OSCs should also call the Regional Coordinator for advice on
actions that are not specifically listed in the guidance, but which may be
nationally significant or precedent—setting. Some nationally significant
removal actions may require special coordination and oversight by the National
Incident Coo rdination Team (NICT). These types of removal actions are
discussed in a November 10, 1986, memorandum from the AA, OSWER entitled
h’Pelatjorsk 4 between Preparedness Stiff a-. Cff!: c’ E er;er.: ar.d Rerne i i
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OSWER Directive 9360.0-19
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Response during a Nationally Significant Incident,” which states that OSCs
should inform the Regional Coordinator when these types of incidents occur.
For those removal actions where HQ concurrence is required, written
concurrence must be received prior to the Regional Administrator’s (RA) formal
approval of the Action Memorandum, except in cases of emergencies (i.e.,
situations where a response must be .initiated within hours after completion of
a site evaluation). HQ concurrence procedures for non-emergency removal
actions at dioxin sites have been modified to streamline procedures. These
non-emergency, emergency, and special dioxin concurrence procedures are
discussed below.
Non-Emergency Removal Concurrence Procedures
All non-emergency concurrences must be requested through an Action
Memorandum with a Request for Concurrence f rm attached. The Action Memorandum
should be in final draft form, except that it should not be signed by the RA.
The request forn must be addressed from the RA to the1D, OERR and should
describe the nationally significant or precedent-setting issue. This form has
been developed in an effort to minimize the additional paperwork associated
with obtaining HQ concurrence. A copy of the form is attached.
The RA may approve the Action MemorandUm for a nationally significant or
precedent-setting removal action once the action has been concurred upon by HQ.
Additional HQ concurrence is required only if the scope of work described
within the Action Memorandum changes significantly;. In this case, HQ
concurrence on the amendea Action Memorandum is required, as discussed above,
prior to any additional actions at the site. HQ concurrence is not required
on requests for ceilinc increases or time exemptions, unless the scope of work
changes significantly. Most $2 million exemption requests require approval by
the AA, OSWER, unless the consistency exemption authority for that site has
been delegated to the RA.
Emergency Removal Concurrence Procedures
In cases where emergency removal actions, as defined above, involve
nationally significant or precedent-setting issues, Regions may initiate a
removal action without HQ concurrence. In these cases, however, OSCs must take
only those actions necessary to mitigate the emergency or stabilize the site,
and then inform the appropriate ERD Regional Coordinator on the next rking
day after the removal action was initiated.
If the response is determined to be nationally significant or precedent-
setting but no further actions are required beyond the emergency mitigation,
the Regions must send to the Director, OERR a copy of the Action Memorandum
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OSWER Directive 9360.0-19
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submitted to the RA for that removal. The Action Memorandum should clearly
describe the nationally significant or precedent—setting issues Involved. A
request for HQ concurrence is not necessary when the Incident does not require
actions beyond the initial emergency measures.
For those nationally significant or precedent—setting sites where further
response is required beyond the emergency measures, HQ concurrence must be
obtained before taking any further action. These concurrence requests are
subject to the non-emergency procedural requirements described above. HQ will
expedite the review of these requests to avoid delaying on-going removal
actions.
Special Dioxin Concurrence Procedures
To reduce the administrative burden that the HQ concurrence procedures
place on Regions with large numbers of dioxin sites, the non-emergency
concurrence procedures have been modified. This modification permits the
concurrence on a single dioxin site Action Memorandum to be used for multiple
dioxin sites in the same Region. To qualify for this special concurrence
procedure, the additional dioxin sites must have identical forms of dioxin
present, anø identical cleanup measures must be employed to achieve Identical
cleanup goals. Regions with multiple dioxin sites meeting these criteria may
obtain concurrence for them all on a single Action Memorandum if supplementary
information is supplied as described below.
The additional sites should be listed on the concurrence form if they are
known at the time the original Action Memorandum is submitted. It should be
specifically stated that the sites are identical in nature and that identical
cleanup measures will be employed. If additional dioxin sites meeting the
above criteria a e is cvere after receipt of the ori; r.a HQ concurrence, the
Regions are required to inform the appropriate ERD Regional Coordinator •f the
location of the additional removal actions. The Regions must also note within
the Action Memorandum that previous concurrence on the cleanup approach has
been provided. -
II. REMOVAL ACTIONS SUBJECT TO SPECIAL PROCEDURAL REQUIREJENTS
The requirements established below apply to five removal categories that
do not present nationally significant or precedent-setting issues requiring HO
concurrence, but instead involve issues that require special Regional
procedures.
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OSWER Directive 9360.0-19
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The five categories of removal actions and the policy for handling each
are as follows:
1. Removals involving mining sites.
Procedures : OSCs must consult with their ERD Regional Coordinator and
demonstrate within the Action Memorandum that they have investigated other
potential cleanup authorities (e.g., the Surface Mining Act) but found
that a response could not be initiated under such authorities within the
time frame required to protect human health, welfare, or the environment,
or that these authorities do not apply to the particular response
situation.
2. Removals involving Federal facilities.
Procedures : Guidance on conducting removals at Federal facilities is
under development. Until this guidance is effective, OSCs must confer
with the ERD Regional Coordinators to ensure that the roles and responsi-
bilities of the various agencies are assigned appropriately.
3. Removals involving site-specific contracts.
Procedures : OSCs must coordinate with the IfQ Procurement and Contracts
Management Division (PCMD) to confirm that the contract Statement of Work
(SOW) is consistent with the Action Memorandum and the SOW conforms with
CERCLA and the NCP.
4. Removals involving radiation sites.
Procedures : OSCs must contact the HQ Office of Radiation Programs for
guidance on health and safety in conducting radiation cleanup activities.
5. Removals involving business relocations.
Procedures : Action Memoranda for removals involving business relocations
may be approved by the Regional Administrators, and other response
activities comprising the removal may be initiated; however, until
specific guidance is developed, OSCs must confer with ERD Regional
Coordinators on business relocations prior to initiating the specific
business relocation aCtivities. This is to ensure national consistency in
the criteria used to determine the need for business relocations, and the
specific expenses incurred.
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OSWER Directive 9360.0-19
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Comments and questions on this guidance should be directed to Betty Zeller
in the Emergency Response Division, FTS 382-7735.
Attachment
cc: Superfund Branch Chiefs, Regions I-X
OHM Coordinators, Regions 1-X
Betti Van Epps £ ..—
Tim Fields
Betty Zeller
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Subject: Request for Concurrence on Proposed Nationally Significant or
Precedent-Setting Removal
From: Regional Administrator
To:
Director
Office of Emergency and Remedial Response
The purpose of this memorandum is to request your concurrence on the proposed removal
action at the ___________________ site in _______________________________. Redelegation of
Authority R-14-l-A gives you the authority to concur on nationally significant or precedent-
setting removals.
The OSC has discussed this proposed removal with staff of the HQ Emergency Response
Division. ERD has advised the OSC that this removal is considered nationally significant or
precedent-setting because __________________________________________________________________
The action memorandum is attached for your review. My approval awaits your co tcurrence.
Concur
Director. Office of Emergency and Remedial Response
Date
According to the redelegation, authority to non-concur remains with the Assistant Administrator.
If you choose not to concur on this action, please forward this memo to the Assistant
Administrator.
Non-Concur :
Assistant Administrator for
Solid Waste
and Emergency Response
-
Concur
Assistant Administrator tor Solid Waste
and Emergency Response
Date
Date
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