United States
Environmental Protection
Agency
Solid Waste And
Emergency Response
(OS-240)
OERR 9200.0-10A
January 1991
>ER& Superfund Removal Procedures
Directives Notebook
Volume 1
Printed on Recycled Paper
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OERR Directive 9200.0-1 OA
September 1991
SUPERFUND REMOVAL PROGRAM
DIRECTIVES NOTEBOOK
VOLUME ONE
Office of Emergency and; Remedial Response
U.S. Environmental Protection Agency
Washington, DC 20460
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TABLE OF CONTENTS
VOLUME I
AUGUST 1991
REMOVAL POLICY AND GUIDANCE cOMMENTS
Removal Completion Date Definition 10/24/86
Guidance on Implementation of the 04/06/87 Supplements OSWER
“Contribute to Remedial Performance” Dir. 9200.3-02
Provision (OSWER Dir. 9360.0-13)
Outline of Engineenng Evaluation/Cost 03/30/88
Analysis (EE/CA) Guidance
Removal Program Priorfties 03/31/88
(OSWER Dir. 9360.0-18)
Draft Guidance for Conducting Federal- 07/18/88 Supplements
Lead UST Corrective Actions on Indian OSWER Dir. 9360.0-16*
Lands (OSWER Dir. 9610.9)
RCRA
Definition of “Liquid Waste” (OSWER 06/28/81 Clarifies 40 CFR
Dir. 9432.01-81 260.10(a) (25) and
261.21
Determining If the Soils from Missouri 01/06/84
Dioxin Sites are Hazardous (OSWER
Dir. 9441.01-84)
Definition of “Treatment” (OSWER Dir. 06/26/85 Clarifies 40 CFR
9432.01-85) 260.10
Interim RCRNCERCLA Guidance on 03/03/86
Non-Contiguous Sites and On-Site
Management of Waste and Treatment
Residue (OSWER Dir. 9347.0-01)
Responsibilities of Regional RCRA Off- 03/24/86
Site Disposal Contacts
Use of Uquids for Wind Dispersal Control 04/21/86
at Hazardous Waste Landfills (OSWER
Dir. 9487.00-O1A)
1
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RCRA (continued ) PAI. COMMENTS
Consideration of RCRA Requirements in 08/19/86
Performing CERCLA Responses at Mining
Waste Sites (OSWER Dir. 9234.0-04)
Joint EPAJNRC Guidance on the 03/02/87
Definition and Identification of
Commercial Mixed Low-Level
Radioactive and Hazardous Waste
(OSWER Dir. 9432.00-2)
Land Disposal Restrictions 08/11/87
Revised Procedures for Implementing Off- 11/13/87 Supersedes OSWER
Site Response Actions (OSWER Dir. 9330.2-5 & 9330.2-6
Dir. 9834.11)
Transmission of Guidance for Conducting 07/25/88 Supersedes 9360.0-16
Federàl-Lead Underground Storage Tank
,Corrective Actions (OSWER 9360.0-1 6A)
Policy for Superfund Compliance with the 04/17/89
RCRA Land Disposal Restrictions
(OSWER Dir. 9347.1-02)
Land Disposal Restrictions as Relevant and 06/05/89
Appropriate Requirements for CERCLA
Contaminated Soil and Debris (OSWER
Dir. 9347.2-01)
Notification of Out-Of-State Shipments of 09/14/89
Superfund Site Wastes (OSWER
Dir. 9330.2-07)
Analysis of T atability Data for Soil and 11/30/89
Debris: Evaluation of Land Ban Impact on
Use of Superfund Treatment Technologies
(OSWER Dir. 9380.3-04)
ALTERNATE TECHNOLOGIES
Draft Guidance on Differentiating 09/30/87
Alternative Technologies for the
Removal Program (OSWER
93802-05)
.2
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ALTERNATE TECHNOLOGIES PA lE COMMEJITS
Lcont lnued)
Superfund Innovative Technology 03/22/88 Updates Su ifund
Evaluation (SITE) Program Requirements Innovative Program
Technology (OSWER Dir. 9380.2-06) 12/01/86
Factors to Consider When Selecting Not Specified
Incinerators as Alternative Technology for
Superfund Cleanups
CERCLA/SARA INTERPRETATIONS COMME jI .
CERCLA Removal Actions at Methane 01/23/86
Release Sites (OSWER Dir. 9360.0-08)
Implementation Strategy for Reauthorized 10/24/86 Supplemented by
Superfund: Short Term Prionties for Action (OSWER Dir 9360.0-
(OSWER Dirs. 9200.3-02) 12 & 9360.0-13).
Guidance on Implementation of the 04/06/87
“Contribute to Remedial Performance”
Provision (OSWER Dir. 9360.0-13)
Scope of the CERCLA Petroleum Exclusion 07/31/87
Under Sections 101 (14) and 104 (a)(2)
(OSWER Dir. 9838.1)
Guidance on Non-NPL Removal Actions 03/03/89
Involving Nationally Significant or Precedent-
Setting Issues (OSWER Dir. 9360.0-19)
Final Guidance on Implementation of the 06/12/89 Supersedes 9360.0-
“Consistency” Exemption to the Statutory 1 2
Limits on Removal Actions
(OSWER 9360.0-1 2A)
ADMINISTRATIVE/COST MANAGEMENT
Clarification of Eligibility and Approval for 09/16/85
Hazardous Duty Pay (Office of the Comptroller
Transmittal No. 85-5)
Superfund Indirect Cost Manual for Cost Recovery 03/00/86 tipdètecftiy 0i /05/87
Purposes (FY 1983 through FY 1986)
3
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ADMINISTRATIVE/COST MANAGEMENT DATE COMMENTS
(contInued)
Superfund Indirect Cost Update 01/05/87 Updates Indirect
Cost Manual
Superfund Site Allowances (Comptroller Policy 01/13/87
Announcement No. 87-07)
Interim Concurrence Procedures for Removal 03/06/87
Actions Under Delegated Regional Authority
Requiring EPA Headquarters Concurrence
New Method for Determination of Indirect Costs 07/15/87 Replaces draft;
in Superfund Removal Project Ceilings (Comptroller Supplements Indirect
Policy Announcement No. 87-15) Cost Manual
Timing of $2 Million Exemption Request 04/04/88
Submissions
Model Program for Removal Site File 07/18/88
Management (OSWER Dir. 9360.2-01)
Site Specific Contracting for Removals 04/10/89
(OSWER Dir 9242.2-02)
Need for Contract Officers Authorization
Before Contractor Activation (OSWER 08/09/89
Dir. 9242.6-03)
4
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Removal Completion Date Definition
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,,o IPa
z UNITED STATES ENVIRONMENTAL PROTECTION AGEHCV
i. WASHINGTON• D.C. 20460
G’
OCT 24 1986
OFFICE OF
SOLID WASTE AND EMEH 3ENCY RESPONSE
T. 9lORANt1JM
SLaIEcr: Removal Con plet ion t te De f mit io
FRa’l: Timothy Fields, Jr., Director ‘ /
nergency T sponse Division
TO: Of ’1 Q ordinators
Regions I — X
iring the recent FY 86 SCAP review, inconSL ten i. 5 ere noted am j
Regions in dete ning CERCLZt renoval action cirising thte . This meno andun
is intended to clarify how the cuTplot ion dates of removal actions are to
be determined when tenporary storage of hazarikxis substancts is involved.
The determination of removal ca ’pletions was originally described in
aiperfund Retcval Procedur3s — Pevision Nutther Two, date •\uust 20, 19R1,
and suh equently has been discussed in the various iS ?r 1 SC.L.P viethodohgies.
Tem ora d nobi1ization and tan ,ora y storage onsite are not consi’1 . red
ca n!ettons, r.ies t r.p. rar/ storage is tne only action iLtentif led in th
Act on Menorandun to mitigate threats to public health, if are and the
envfrori nt. Ukewise, temporary off—site storage oE hazardous substances
at a storage, trea ent, and disposal (TSD) facility cther than the facuLty of
ultimate disoosal is a continuation of the removal action, not a canpietion .
A removal action woild not be considered conpiete if:
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0 Hazardous substan .es stored onsita are being n onitor .1 by the ERCS
contractor or if any additional FRCS expenditures we anticipated , Or
0 Hazardous substances are being stored at an of E— te facility, other
than the ultimate T D facility.
A removal action would be considered cavplete if:
0 The scope of work for the r c,val action d s not sp . ify final off-site
disposal of ha?.arlous substances, the substances avc been stabilized
and are stored on ite and no addttional GI CLA ranovd prcgr n funds
are anticipatel to be expended at the site. In this hazardous
substances may be expected to undergo long—tern stor e onsite due to
circunstanci s such n the unavailability of a fin .il t aunent/dispnSaL
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—2—
remedy (e.g., Mtsswri dioxin s1te ). In this in itancu, noCEPCLI\
ranonl program funds will be expended for long—tur in site oçemttcn
and maintenance. An’, long—term (greater than 6 nnt’s) site cperation
and maintenance will be performed by the responsi’ñ party or anrjth’ r
agency (e.g., State).
Hazazda*s substances are being stored off—site at the location of
final disposal, and no additional EtCS expenditures are anticipated.
If any further clarification of ha i to determine the closing date of
a project is required, please contact Jin Jowett or Mark Mjoness at
n ’S 382—2188.
cc: C?MS
Hans Qirp
tbrry Onerson
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Guidance on Implementation of the
"Contribute to Remedial Performance"
Provision
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United Slates Offic, of
Erivurorimantul Pratscuon Solid Waite and
Agency Emsigutcy R.wcn..
&E PA DIRECTIVE NUMBER: 9360.0-13
TITLE: Gui.dance on Ii çlementatiori of the “Contribute
to Remedial Performance’ Provision
APPROVAL DATE: April 6, 1987
EFFECTIVE DATE: April 6, 1987
ORIGINATiNG OFFICE:
FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OSWER Directive 9200.3-02
Impletentation Strategy for Reauthorized Superfurtd:
Shor Term Priorities for Action
OSWER OSWER OSWEF
VE DiR E C TI VE DIRE C TI VE
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OSUER Directive
GUIDANCE ON IMPLEMENTATION OF IKE
‘CONTRIBUTE TO REMEDIAL PERFORMANCE” PROVISION
1. INTRODUCTION
Section 104(b) of the Superfund Amendments and Reauthorization Act of
1986 (SARA) amends section 104(a) of CERCLA to include the statement that any
removal action undertaken by the President, or by any other person referred to
In section 122* of the new law, should, to the extent practicable, contribute
to the efficient performance of any long-term remedial action with respect to
the release or threatened release concerned. This guidance document explains
how to implement this provision, and includes guidelines on the applicability
of the requirements, the definition of “contribute to efficient performance,”
exceptions, documentation and coordination. This document should be used In
conjunction with the general removal procedures described In the Superfund
Removal Procedures -- Revision Number Two, August 20, 1984, or, as may be
amended.
2. APPLICABILITY
This provision will be applicable to removal actions at all sites ——
final National Priorities List (NPL), proposed NPL, and non—NPL. The term
“long—term remedial action” as used in this provision will therefore refer
to a remedial action to be taken by the EPA, State, or a private party.
3. DEFINITION OF “CONTRIBUTE TO EFFICIENT PERFORMANCE”
3.1 Purpose
This provision promotes the performance of removal actions that address
threats more efficiently by considering the overall site cleanup before the
start of the action. To the maximum extent practicable, removal actions
shouTd be designed to avoid wasteful, repetitive, short—term actions that do
not contribute to the efficient, cost-effective performance of long—term
remedial actions to be taken by the EPA, State, or other party. The major
objective of this requirement is to provide maximum protection of public
health and the environment at minimal cost by avoidance of removal restarts.
The focus of this provision Is an avoidance of restarts that are due to recur-
ring threats that were not adequately abated In t e original removal action,
and threats from deteriorating site conditions that should have been foreseen.
There are other circumstances, however, where removal restarts may be
necessary to meet program goals. For example, a removal action may be a phased
response. The first removal action might involve site stabilization and waste
Section 122 refers to potentially responsible parties (PRPs) who have entered
into settlements with EPA.
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-2 - DSWER Directive .926G
charatterization. The site may then be demobilized and closed out to allow
removai personnel to prepare an analysis of waste treatment/disposal options,
Once an option is selected, a removal restart would be implemented to complete
the waste disposition phase. In this case, the removal restart would actually
contribute to achieving a more efficient cleanup. Removal restarts may also
occur in an attempt to meet other program goals, such as pursuing responsible
party (RP) cleanups or State assumption of removal action operation and main-
tenance requirements. An RP may take over a removal action from EPA, but EPA
may have to initiate a restart if the RP is not performing an adequate cleanup.
The “contribute to efficient performance” provision was not Intended to conflict
with these other program goals. As stated above, the provision was Intended
to reduce removal restarts due to inadequate planning at the start of the
action.
3.2 Implementation
To meet the goal of avoiding removal restarts, response personnel must
adequately assess the threats posed by the hazardous substances on a site and.
consider how the removal action would most effectively contr ibute to the long—
tern remedy. The following questions should be considered:
1. ‘4hat is the long-term cleanup plan for the site?
This provision requires removal actions to contribute to the
performance of the “long-term remedial action.” At an NPI. site.
if the Record of Decision has already been signed 1 then comparing
the removal action to the remedial cleanup plan is a straight—
orward task. However, for proposed NPL sites and for many final
NPL sites, the remedial action may not have been selected when the
removal action is implemented. In these cases, response personnel
will be limited to identifying a range of feasible remedial
alternatives. Response personnel need only review existing site
information and use their best professional judgment. Removal and
remedial personnel in the Region must coordingte with each other in
this effort. It is the responsibfltty of the Region to establish
appropriate coordination mechanisms.
At non-NPL sites, response personnel should, where practicable,
consult with the party performing the long—term response action at
the site (e.g., State, RP) to determine the proposed approach for
the long—term cleanup. Itis recognized that it may be more difficult
to ascertain the remedial action at non-flPl. sites. Response personnel
should use their best efforts to coordinate with the party performing
the long—term remedy. At many non-NPL sites, there may be no plans
for another party to conduct a rom dlal action.
2. Which threats will require attention prior to the start of the
long-term action?
The February, 1986 National Contingency Plan (NCP) broadened
re’noval authority by allowing removal actions to be taken in response
to “threats” ratler than just “immediate and significant” threats.
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3 aswERoirectlve
This expanded authority will allow a removal action to address any
near-term threats that may arise prior to the start of the long—term
action, provided the threats meet the removal criteria established In
section 300.65 of the current NCP. Potential threats should be Identi-
fied when the first removal action at a site is implemented to avoid
the need for future removal restarts. Therefore. in addition to
identifying lnriediate threats, response personnel should also identify
potential near-term threats from contaminant migration, deteriorating
site conditions, etc. This assessment is particularly important If a
decision is made to leave surface hazardous substances on site after
the removal action is completed.
Response personnel must identify threats that may arise prior to
the start of long—term actions, but the length of time before long—
term actions will begin will vary from site to site. For example, for
NPL sites where a ROD has been signed, the time frame that response
personnel must consider will be shorter than for NPL sites where the
Remedial Investigation/FeasibilIty Study (RI/FS) has just been
initiated. Of course, at some NPL sites, the remedial program may
plan to conduct an operable unit during the RI/FS if time permits.
Zn this case, the time period to consider would again be shorter.
Response personnel should consult with the party performing long-
term action at the site to determine when such action will begin,
and use their best professional judgment.
At non—NPL. sites where there are no plans for another party to
undertake a long—term cleanup, all threats and potential threats that
meet the removal criteria in the current MCP should be identified.
3. How far should the removal action go to assure that the threats are
adequately abated?
The expanded authority in the 1986 NCP will allow more complete
removal actions to to be taken. Removal actions no longer have to
stop when emergency situations are mitigated, but can continue, or be
Initiated, where needed to ensure that near-term threats are adequately
abated. Measures that provide only temporary protection, insufficient
to last until long—term actions begin, should be avoided to the extent
possible. However, as noted above, consideration must also be given to
the availability of other response mechanisms (e.g., State action,
remedial operable unit) to initiate long—term action in a timely manner.
Whether or not the removal action shouldaddress all surface
hazardous substances must be decided on a site—by—site basis.
A removal action would be appropriate whenever surface hazardous
substances may present a threat (as established in section 300.65 of
the current NCP) before the start of long—term action. How the
removal action should address the surface hazardous substances will
also depend on site—specific conditions and the long-term cleanup plan.
With the increased emphasis on using alternative technologies and new
restrictions on land disposal, remedial actions may often include on-
site treatment if surface contamination is extensive. n this case,
the removal ac:icn may consist of consolidating and stabilizing the
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OSWER Olrect lve 9360.C
substances on site to await treatment. It is important to design the
removal action to ensure that the materials are adequately stabilized.
At other sites, surface hazardous substances may constitute only a
small part of the problem; may not be safely stabilized for a long
period of time; or may be more efficiently addressed as one unit by
immediate treatment or disposal. In these situations, it may be more
appropriate for a removal action to include final disposition of all
surface hazardous substances. The conditions at the site and the long—
term cleanup plan will determine the appropriate scope of the removal
response.
At non-NPL sites where there are no plans for another party to
perform long—term remedial action, the threats that meet the removal
criteria in the current NCP should be completely cleaned up, If possible.
The avoidance of removal restarts due to recurring threats Is the ultimate
goal. If mitigation of the threats that meet the NCP removal criteria
results in complete site cleanup (I.e., no further Federal response
required), the “contribute to efficient performance” provision Is fully
Sati sfi ed.
In considering all of the factors described above, the major
determinant of how far the removal action should go to assure threats
are adequately abated will be the statutory limits on removal actions.
Removal actions should contribute to the efficient performance of
remedial actions to the maximum extent practicable given the $2 mllllon/
12 month limits on removal actions. (An exemption to the limits may
be granted where the site qualifies under the “emergency TM or
“consistency” waivers.)
With regard to cleanup standards, this provision does not compel
the removal program to lower its cleanup standards. Rather, the pur-
pose of this provision Is to improve the design of removal actions
such that after cleanup standards are established for a removal site.
the chosen removal action will address those substances targeted for
cleanup in a manner that avoids the need for removal restarts.
For example, the removal program has historically used 50 ppm as a
benchmark in determining the appropriate extent of cleanup of PCB—
contaminated.soil. The “contribute to efficient performance”
provision wouTd not affect this number, but would direct that the
method chosen te address soil contaminated above 50 ppm should be
designed to avoid the need for removal restarts to the extent
practicable.
4. Is the proposed removal action consistent with the long.term remedy?
The removal action that is chosen should be consistent with
long-term actions at those sites where further cleanup will be taken.
“Consistent” is defined in its broadest sense and may be characterized
as a range of possible approaches. At one end of the spectrum, removal
actions may be found consistent if they do not hinder or interfere with
the remedial action to be taken. At the other end of the spectrum, removal
actions may be found consistent because they contribute in a positive way
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OSWER Directive 9’ a -
to the long—tent cleanup plan. For example, a removal action to
prvide carbon filters to homes with contaminated drinking water as
an interim measure would not interfere with a lang-tern remedial plan
to clean up the contaminated aquifer. A removal action to solidify
sludge could, however, hinder a long—term plan to incinerate the waste
and should, therefore, be avoided if other approaches are feasible .
4 removal action to remove surface drurtis front a landfill could contribute
in a positive way to a remedial plan to clean up the site.
Removal actions may be found consistent If they fall anywhere within
this range; the most appropriate approach will depend on site—specific
factors. It is recognized that in some cases, the removal action may
create additional work for the remedial action and yet still be the most
appropriate approach for the site. For example, a conunon removal action
is capping contaminated soil to prevent migration and human contact in
the time period before remedial actions begin. Although the cap would
have to be removed to implement a long-term plan to excavate and treat
the soil, it may still be the most effective method to mitigate the threat
in the short-tern. Protection of public health and the environment, as
well as technical feasibility, must always be considered. If such an
action is selected, the rationale for selection should be explained in the
Action Memorandum. CSee Section 5.)
The answers to these four questions will help determine what type of
removal action is needed and how it can be designed to contribute to the
efficient performance of lorg—term remedial actions. These questions are
provided as general guidelines to indicate the urious factors that should
be considered in implementing this provision of SARA. A written analysis of
the answers to each of these questions Is not required. The conclusions
should be documented in the Action Memorandum. (See Section LI
4. £XCEPTtOH
The only situation where it may not be feasible to consider how the
proposed removal action relates to the long-term remedy is in an emergency.
In such cases, response personnel may need to take whatever innediate
measures are required to protect the public health, welfare, and the
envi ronment.
5. DOCUMENTATION AND COORDINATION
The Action Memorandum should specifically cite the “contribute to
efficient performance” requirement and briefly discuss how the proposed
removal action relates to long-term remedial actions, to the extent
practicable. (See the Superfund Removal Procedures for information on Vie
preparation of Action 1emoranda.) If the proposed removal action compTetes
the cleanup and no further action is required, this should be so noted. If
only minimal information is available about long-tern actions, this should
also be explained. If an emergency existed that precluded an analysis of how
the removal related to long-term actions, this should be noted. Finally, If
compliance with this provision would conflict with other program goals (e.g.,
pursuit of RP cleanup), this shoud be explained.
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OSUER Directive 9 6O. -
Compliance with this requirement does not require special approval; the
Action_Memorandum should be approved by the established concurrence chain In
the Region or In Headquarters, If appropriate. n making the determination,
however, It will be the responsibility of the OSC to coordinate with the party
that will undertake the long—term remedy (for those sites where additional
cleanup measures will be taken).
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Outline of Engineering Evaluation/
Cost Analysis (EE/CA) Guidance
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D C. 20460
MAR 3 e
OFFICE OF
SOLJO WASTE ANO EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: OUTLINE OF EE/CA GUIDANCE / _ / i 1
FROM: Timothy Fields, Jr., Director Z vptf ? J JiL 4 J d’)/IC’
Emergency Response Division (1 1
TO: Superfund Branch Chiefs, Regions I-X
OHM Coordinators, Regions I-X
In June 1987, the Emergency Response Division (ERD) issued the first
draft guidance on Engineering Evaluations/Cost Analyses (EE/CA) for
non—time-critical removal actions. The goals of the EE/CA are to:
1) satisfy environmental review requirements for removal actions; 2) satisfy
administrative record requirements for improved documentation of removal
action selection; and 3) provide a framework for evaluating and selecting
alternative technol ogi es.
ERD delayed issuance of a second draft EE/CA guidance pending the outcome
of several issues related to the upcoming National Contingency Plan (NCP)
revisions. Most of these issues have now been resolved and ERD is preparing
a new draft EE/CA guidance for Regional review this spring.
Attached is an outline of the EE/CA guidance ERD is developing. Because
there have been a number of questions from the Regions on EE/CAs, we thought
it would be helpful to provide an outline at this time to assist the Regions
in preparing EE/CAs until the new draft Is available. Note that the EE/CA
process no longer Includes an Initial screening of the alternatives and that
the selection criteria have changed somewhat.
If you have questions on the attached outline, please call Jean Schumann
of my staff atFTS 382—4671.
Attachment
cc: Hans Crump Earl Salo
Paul Nadeau Lee Tyner
Bill Hanson Joe LaFornara
Don White Bruce Engelbert
Lloyd Guerci John Riley
• Frank Russo Cristiria Griffin
John Cross Jean Schumann
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EE/CA GUIDANCE TABLE OF CONTENTS
I. INTRODUCTION
II. EE/CA REPORT
A. Site Characterization
1. Site description
2. Site background
3. Analytical data
4. Site conditions that justify a removal action
B. Identification of Removal Action Objectives
1. Statutory limits on removal actions
2. Removal action scope
3. Removal action schedule
4. Applicable or relevant and appropriate requirements (ARARs)
C. Identification of Removal Action Alternatives
0. Analysis of Removal Action Alternatives
1. Effectiveness
a. Protectiveness
b. Use of alternatives to land disposal
2. Impleinentability
a. Technical feasibility
b. Availability
c. Administrative feasibility
3. Cost
a. Total cost
b.- Statutory limits on removal actions
E. Comparative Analysis
F. Proposed Removal Action
III. CONTRACTING CONSIDERATIONS
IV. COST MANAGEMENT
V. EE/CA FUNDING
VI. ENFORCEMENT-LEAD ACTIONS
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ENGINEERING EVALUATION/COST ANALYSIS GUIDANCE OUTLINE
I. INTRODUCTION
EE/CAs are required only for non-tine-critical removal actions/Expedited
Response Actions (ERAs). The Regions may choose to prepare an EE/CA for
other actions.
— Hon—time—critical removal action: Those releases or threats of
releases riot requiring initiation of on—site activity within 6 months
after the lead agency determines, based on the site evaluation, that
a removal action is appropriate. (In other words, based on threat,
there is at least a 6 month lead—time available before cleanup action
must begin.)
o Steps in the EE/CA process (apply only to actions that are determined
dt the outset to be non—time—critical):
A. Site evaluation . Removal PA/SI results indicate that the site meets
the criteria for initiating a removal action and that the threat is
non—time—critical. (At an NPL site, RPMs should continually evaluate
site conditions to determine if a removal action is appropriate.)
B. Issue PRP notice . General notice required; special notice
dTscretionary.
C. EE/CA Approval Memorandum . Documents that the site meets the criteria
for initiating a ren iovaFaction and secures management approval to
conduct the EE/CA. (To be resolved: Format and approving official)
o OSC/RPM should notify the community relations staff of the upcoming
EE/CA.
o Designate site spokesperson.
o Open Administrative Record (AR) and publish notice of availability.
o Begin coimnunity interviews and preparation of Community Relations
Plan (CRP)I,
D. Contract for EE/CA preparation . TAT, REAC, REM, site—specific.
E. EE/CA study and report preparation . See II below for more detail.
May include on—site activities toThetter define site and characterize
waste ( 104(b) actIvities), but may not include cleanup measures.
F. EE/CA completed .
o Place EE/CA in AR and publish notice of EE/CA availability plus
brief summary of EE/CA.
o CRP should be completed by this time.
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F. Thirty—day public comment period . On EE/CA and other documents in AR.
G. Action Memorandum, attaching responsiveness summary . Describes proposed
removal action and secures management approval to conduct the action.
Responsiveness summary is a summary of significant public comments
and EPA’S response to these comments. -
AR closes when Action Memorandum is included. At this point, all
information relating to the selection of the removal action must be
included in the AR. EPA may add documents generated after the
Action Memorandum is signed only if they concern issues which were
specifically reserved for future action or if they support an
amended Action Memorandum.
H. Implementation of removal action . $2 rnillion/12 month statutory limits
apply only to the implementation of the removal action, not to previous
104(b) activities.
Note that an EE/CA and public comment period are not required if a removal
action will be used to implement a signed ROD. In that case, the RI/FS
and remedial public participation procedures fulfill the EE/CA requirements.
II. EE/CA REPORT
The EE/CA report should follow the format below.
A. Site Characterization
1. Site Description
Location, facility type, surrounding land use, hydrology, nature and
extent of contamination, etc.
2. Site Background
Prior site use, operational history, regulatory involvement, etc.
(Confidential information must be placed in confidential portion
of AR.)
3. AnalytIcal Data
Sunmiary of results of analytical data (considering the quality of
that data).
4. Site Conditions That Justify a Removal Action
Information contained in the EE/CA Approval Memorandum should be
used here.
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—3—
B. Identification of Removal Action Objectives
1. Statutory Limits on Removal Actions
Brief explanation for the public of the $2 tnillion/12 month limits
on removal actions and two types of statutory exemptions available
(“emergency” and “consistency”). Stated objective should be to
remain within these limits, unless site qualifies for one of the
statutory exemptions.
2. Removal Action Scope
Description of the scope of the project, e.g., total site cleanup,
site stabilization, completion of operable unit OWL sites’),
surface cleanup only. Include description of principal threats to
be addressed. Particularly important to clearly define scope if
removal action will not address the entire universe of threats at
the site.
3. Removal Action Schedule
General scheduling objectives for the removal action, identifying
any time constraints (e.g., must complete action prior to winter,
threat requires initiation of action within 1 year).
4. Applicable or Relevant and Appropriate Requirements (ARARs)
Identification of chemical—specific and location—specific Federal
and State ARARs for the site. ( Compliance with identified ARARs
will be discussed in the analysis of removal alternatives in
section D below.) States are required to identify promulgated
State ARARs in a timely manner.
Removal actions should attain ARARs to the extent practicable.
C. Identification of Removal Action Alternatives
Description of appropriate removal action alternatives for site
(includi ig description of necessary equipment, personnel, etc.).
Based on OSC/RPM experience and best professional judgment.
A N 0 action” alternative is not required.
Additional resources available to assist In identifying appropriate
technologies: ERT, SITE program, Superfund Regional Technology
Transfer contacts, industry publications, best demonstrated
available technologies (BOATs) identified in the land disposal
restriction rules.
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-4-
D. Analysis of Removal Alternatives
Each alternative should be evaluated individually based on the
criteria below.
1. Effectiveness
a. Protectiveness
o Protection of the community during the removal action
Description of threats that may result from implementing the
removal action, such as air quality impacts from an
incinerator that may affect human health, and mitigative
measures that can be taken.
o Protection of workers during the removal action
Description of threats that may result from implementing the
removal action, such as dust from excavation, and mitigative
measures that can be taken.
o Threat reduction
Evaluation of the extent to which the completed action will
reduce risk or mitigate the threats identified in the
description of removal scope (9.2). Measured qualitatively
or quantitatively (e.g., cleanup levels or cancer risk
levels achieved), as appropriate.
° Time until protection achieved
Determination of the time until protection is achieved for
the principal threats at the site, compared to the removal
action schedule (B.3) where appropriate.
o Compliance with chemical— and location-specific ARARs
Determination of whether ARARs identified in section 8.4
ca? be met or whether a waiver may be appropriate.
• Compliance with criteria, advisories, guidances
Description of compliance with other criteria, advisories or
guidances that are not ARAR, but could appropriately be
applied to the site. For example, if PCB—contaminated soil
will be excavated in the alternative, EE/CA may compare the
cleanup level the alternative will achieve (the level
described under “threat reduction” above) to the appropriate
cleanup levels in the EPA PCB Spill Cleanup Policy.
° Envi ronmental impacts
Description of the potential adverse environmental Impacts
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—5—
that may result from implementing the removal action and
mitigative measures that can be taken. (If overlap with
ARARs evaluation occurs, simply refer reader to the
appropriate ARARs discussion in the EE/CA report.)
o Potential exposure to remaining risks
Assessment of potential for future exposure to residuals
remaining on-site.
o Long-term reliability for providing continued protection
Assessment of potential for failure of the alternative and
need for replacement, and description of potential threats
from such failure or replacement. Should address the
reliability of engineered components of the alternative
(cap, treatment system), non-engineered components
(fences), and any institutional controls (deed notices), as
appropriate.
b. Use of Alternatives to Land Disposal
Description of the degree to which the alternative utilizes
treatment or recycling. Removal program policy encourages the
use of alternatives to land disposal where practicable.
2. Implementability
a. Technical Feasibility
° Ability to construct and operate technology
Description of the ability to construct the technology and
to keep it running during operation, considering difficulties
and unknowns that may lead to schedule delays. Compare to
removal action schedule (B.3) where appropriate.
0 Compliance with action—specific ARARs
Identification of Federal and State action-specific ARARs
and determination of whether ARARs can be met or whether a
waiver is appropriate.
o Ability to meet process efficiencies or performance goals
If overlap with ARARs evaluation occurs, simply refer reader
to appropriate ARARs discussion in the LE/CA report.
o Demonstrated performance
Evaluation of maturity of technology and whether ft has been
used under similar conditions for similar wastes.
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-6—
Environmental conditions
Evaluation of impact of environmental conditions, such as
terrain and climate. For example, a generally reliable
oil/water separator may be inoperable in freezing temperatures
without the use of heaters. A site located in a valley may
pose a problem for a technology if surrounding air currents
provide insufficient dispersion of particulates.
° Compliance with SARA requirement that removal actions should
contribute to the efficient performance of long—term remedial
action to the extent practicable
Is the action designed to prevent the need for removal restarts
to address the same threats? Is the action consistent with the
long—term remedy for the site?
b. Availability
o Availability of necessary equipment, materials, and personnel
Compare to removal action schedule (8.3) where appropriate.
o Availability of adequate offsite treatment, storage, and
disposal capacity, if appropriate
Compare to removal action schedule (B.3) where appropriate.
o Post-removal site control (PRSC)
Description of any PRSC measures that will be required at
completion of the action, including monitoring, and availability
of another party to assume these activities at the end of the
removal action.
c. Administrative Feasibility
o Likelihood of public acceptance of the alternative, including
State and local concerns
o ActIvities needed to coordinate with other agencies
o AbilIty to obtain any necessary approvals or permits (permits
are not required for actions conducted on—site)
3. Cost
a. Total Cost (Present Worth) of the Alternative
Include direct capital costs, indirect capital costs, and any
post-removal site control costs. The draft NCP recommends use
of discount rate of 5 percent before taxes and after inflation.
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—7—
b. Statutory Limits
Comparison of total cost to the $2 million statutory limits on
removal actions.
E. Comparative Analysis
Qualitative assessment of strengths and weaknesses of each
alternative relative to the others. Suninary tables would be
helpful, with alternatives along one axis and evaluation
criteria along the other axis. (Include post-removal site control
costs when comparing costs of alternatives.)
F. Proposed Removal Action
Identification of the proposed removal action. If proposed action
will exceed $2 million, include justification of need to exceed
the statutory limits.
3.0 CONTRACTING CONSIDERATIONS
To avoid potential conflict-of-interest, the contractor who conducts
the EEICA may not be used to perform the site cleanup.
4.0 COST MANAGEMENT
5.0 EE/CA FUNDING
6.0 ENFORCEMENT-LEAD ACTIONS
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Removal Program Priorities
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f UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ - WASHINGTON. O.C. Z0460
Mi R3I
OFFICE OF
SOLIO WASTE ANO EMERGENCY RESPONSE
MEMORANDUM OSWER Directive Plo. 9360.0-18
SUBJECT:
FROM: J. insto Porter
Assistant Administrator
TO: Regional Administrators, Regions I-X
ATTN: Director, Waste Management Division, Regions I, IV, V,
VII, VIII
Director, Emergency & Remedial Response Division, Region II
Director, Hazardous Waste Management Division, Regions III,
VI
Director, Toxics and Waste Management Division, Region IX
Director, Hazardous Waste Division, Region X
Director, Environmental Services Division, Regions I, VI, VII
PURPOSE
The purpose of this memorandum is to confirm general policy regarding
removal program priorities.
BACKGROUND
The enactment of the Superfund Amendments and Reauthorization Act of
1986 (SARA) and other recent developments have expanded the potential scope
of the removal program. Removal resource levels, however, require us to set
priorities for the removal program, which address health and environmental
threats to the maximum extent possible within the confines of our resource
limitations. Funding levels and SCAP targets for Ff 88 were contained In a
memorandum of August 31, 1987, entitled Final 1987 SCAP, from Henry L. Longest
and Gene Lucero to the Regions.
The national extramural cleanup budget for removals in FY 88 is about
$90 million: this will fund approximately 190 removal actions. All of the
$90 million is being distributed to the Regions; Headquarters Is not keeping
any contingency reserve. The rate of removal obligations in the first and
second quarters of FY 88 suggests that there may not be enough removal funds
to last through the entire year if the current pace of program activity is
conti-nued. Each Region Is responsible for planning and conducting a removal
program consistent with Its annual resource allocation.
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CSWER Directive No. 9360.0—13
-2—
REMOVAL PRIORITY POLICY
Removal resources must be used to address the most serious public health
and environmental threats. In all cases, Regions should aggressively pursue
cleanup y the responsible party (RP), if time permits, before Initiating any
Fund-lead removals. Top priority for removal resources should be given to
time-critical actions as follows
o Classic emergencies involving incidents (e.g., threats of
fire or explosion) where response is generally necessary
within a matter of hours.
0 Time—critical removals at sites on the National Priorities
List (NPL). Regions should always give due consideration to
the fact that removals at NP1.. sites may result In a loss of
the 10 percent State cost-share; and
0 Time—critical removals at non-NPt. sites posing major health
and environmental threats, which cannot be addressed by other
authorities.
These three categories of time—critical removals should be the primary focus
for the 596 million allocated to the removal program for cleanup contractor
support.
As resources permit, there are other non-time-critical removals at NPL.
sites which we may be able to conduct. These removals will usually be at
sites already funded in the remedial SCAP to:
o Completely cleanup NPL sites, resulting in deletion; or
o Conduct interim actions at NPL sites.
Generally, we intend to use remedial funds to pay for non-time—critical
actions at NPL sites. The principal source of these remedial funds will be
proceeds from RP settlements and funds allocated for remedial projects In the
SCAP. My staff is examining ways to create additional funding flexibility
in the Superfund SCAP and budget processes to facilitate this new direction.
Regions should strive to maintain consistency with remedial actions, but
actions taken should remain within the scope of a removal. Stabilization at
NPL sites Is usually the most appropriate removal action, unless complete
cleanup can be done within the Region’s resource allocation.
States shøuld be strongly encouraged to conduct non—time—critical removals
at sites which will not score high enough to be on the NPL. Preference should
be given to response alternatives which contain and control the source of
contamination and prevent off-site migration. Removal personnel should also
continue to provide full cooperation with the enforcement program In pursuing
potential RP cleanup at these sites.
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Draft Guidance for Conducting
Federal Lead UST Corrective Actions
on Indian Lands
-------
OSWER Directive 4o. 9360.0-18
-3-
OTHER RESPONSE MECHANISMS
Regions should actively pursue response by States and potential
responsible parties (PRPs). Enforcement authorities should be vigorously
applied to encourage PRP response. This means conducting a complete PRP
search, Issuing general notices or special notice letters (If time permits),
negotiating with PRPs, and using administrative orders on consent to formalize
settlements. Unilateral administrative orders should be considered In every
case where voluntary settlement is not achieved.
Regions should also pursue response under other authorities, and give
priority to those incidents posing threats which can only be addressed by
Federal removal authority. For example, Installation of new water supply
systems should generally be a State or local responsibility. The new drink-
ing water action levels are only one of many site—specific factors to be
considered in deciding whether Federally-funded removal action is appropriate.
More specific guidance In this area is under development. In the interim,
Regions should contact the appropriate Regional coordinator in the Emergency
Response Division whenever there are questions about removal priorities.
CONCLUSION
The importance of managing the removal program within the boundaries
of its resources cannot be overemphasized. We have provided these natlona
guidelines on removal priorities to assist Regions In this effort; however,
Regions maintain the discretion to conduct other types of removals within
program authorities, if site—specific conditions necessitate such action and
if Regional resource levels permit. We recognize that the intrinsic nature
of the removal program is such that even with the most careful planning,
unanticipated events may occur.
I hope this memorandum is helpful as we all attempt to use our Superfund
resources to address the most significant environmental priorities.
cc: Superfund Branch Chiefs, Regions I-X
011 and Hazardous Materials Coordinators, Regions I—X
Jack McGraw
Henry Longest
Gene Lucero
Tim Fields
Paul tladeau
Lloyd Guerci
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON, D.C. 20460
ç 11rds
Q 01 C
JUL 8 1988
3OLi NASE iO €M PG ’lC
MEMORANDUM
SUBJECT: Guidance for Conducting Federal-Lead UST Corrective
Actions on Indian Lands
FROM: Ron Brand, Director A - # _-. Z_ .
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-l32S)
I have enclosed a copy of our draft guidance for conducting
Federal—lead underground storage tank corrective actions in
response to petroleum releases on Indian Lands. The guidance
discusses the procedures and documentation that are necessary for
approving and carrying out Federal response to UST releases on
Indian Lands. The guidance supplements the soon to be
distributed final guidance on Federal—lead UST corrective actions
for States (OSWER directives 9360. 0—16A), which does not address
Indian Land releases.
Please submit your comments on the enclosed draft to
Mark Waivada (WH-562A) of my staff. We would appreciate
receiving all comments by August 15, 1988. Should you have any
questions, please call Mark at FTS-475-9727.
cc: UST..Rgional Program Managers
Jo il.y, ERD (WH-548B)
B Englebert, ERD (WM-5483)
Bs Zsller, ERD (WH-548B)
Carrie Wehling, OGC (LE-132S)
Mark Waiwada, OUST
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United States Office of
Environmertlaf Protection Solid Waste and
Agency Emecgenc Response
8iEPA DIRECTIVE NUMBER: 9610.9
TITLE: Draft Interim Guidance on Conducting
Federal-Lead Underground Storage Tank
Corrective Actions for Petroleum Releases
on Indian Lands
APPROVAL DATE:
EFFECTIVE DATE:
ORIGINATING OFFICE: Office of Underground
Storage Tanks
O FINAL
DRAFT
STATUS: For Review and Comment
REFERENCE (other documents):
OSWER Directive 9360.O-16A
Guidance for Conducting Federal-Lead
UST Corrective Actions
Os
WER
Os
WER OSWER
‘E
DIREC
TIVE
DIRECTIVE D I
-------
OSWER DIRECTIVE 9610 9
DRAFT 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, 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 underground storage tank (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 on Federal-lead corrective
action for States (OSWER directive 9360.0-16A) which does not address releases
on Indian Lands. The final guidance document on Federal-lead UST corrective
action on Indian Lands will be issued in FY 1989, following the completion of
Indian Lands pilot projects being conducted in Regions 8 and 9. The pilot
projects will gather information about USTs on Indian Lands to assess the
extent of the UST problem and the capacity of Indian Tribes to address the
problem. EPA will assess the information gathered through the pilot projects,
and other information gathered in responses initiated under this interim
guidance, to develop the final guidance document.
1.2 Background
The Superfund Amendments and Reauthorization Act (SARA) contains
provisions in section 205 amending Subtitle I of the Solid Waste Disposal Act
(SWDA) which gives EPA and States under cooperative agreement the authority to
conduct corrective actions in response to petroleum releases from USTs, using
monies from the $500 million Leaking Underground Storage Tank (LUST) Trust
Fund. SARA does not provide EPA the authority to enter into LUST Trust Fund
cooperative agreements with Indian Tribes.
EPA expects Federal-lead corrective actions on Indian Lands to occur onLy
in a limited number of instances. Preliminary assessments indicate that the
total number of underground storage tanks on Indian Lands is small (0.2
percent of the regulated universe). Further assessments, including those
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.
While this document is limited to “time-critical” responses on Indian Lands
(i.e., releases that require response within six months), guidance for longer-
term corrective actions will be issued when the extent of the problem on
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2 0S JER DIRECTIVE 9610 9
Thdian Lands is more fully understood.
1.3 Policy
The EPA LUST Trust Fund Program is State implemented. States under
cooperative agreement carry out Fund-financed responses to releases from
leaking tJSTs, except in rare instances. EPA’s role is to provide guidance and
support to the States in their development of State LUST programs. EPA will
lead a Fund-financed response in a State only in limited instances when there
is a major public health or environmental emergency, the owner or operator is
unwilling or unable to respond, and the State is unable to respond.
Because of the State emphasis of the program, Indian Lands present a
unique situation for the EPA LUST program. EPA does 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. EPA’s goal is to treat Indian Lands as States.
allowing Indian Tribes to implement programs similar to those carried out by
States. A legal mechanism for allowing Indian Tribes to establish cleanup
programs and directly access the LUST Trust Fund is being sought, and the
willingness and capability of Indian Tribes to develop and implement such
programs is being examined. During this period EPA is 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
and the environment, the Indian Tribe is unable to respond, and the owner or
operator must be unable or unwilling to provide adequate and timely response.
Considering chat many Indian Tribes may lack the capability to oversee or
conduct corrective actions, the criteria for initiating.a Federal response to
releases on Indian Lands has been expanded from the Federal-lead corrective
action guidance for States. Federal response in States is limited to classic
emergencies (i.e. • the release immediately threatens human health and the
environment and requires response within hours or days), while Federal
response on Indian Lands may occur in situations where immediate action is not
necessary but the release is considered time-critical and will require
response within six months.
Federal-lead UST corrective actions 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. Removal actions appropriate to 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;
* * * DRAFT * * *
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3 OSWER DIRECTIVE 9610 9
• Ventilation of fumes from a residence or other building;
• Construction of fences, warning signs, or other security or site
control precautions;
• 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.
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
groundwater cleanup, may require remedial actions that are beyond the
capabilities of EPA’s removal program. OUST will address long-term corrective
action under separate guidance when the need for such action is established.
Efforts will be made to involve Indian Tribal authorities in cleanup
decisions. On-Scene Coordinators and UST Regional personnel should rely on
Indian Tribal authorities to gather as much information as possible about the
site and owners and operators prior to initiating a Federal response action.
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 the SWDA
for the periods before and after the effective date of the final regulations,
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 substantial
threats to natural resources.
* * * DRAFT * * *
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4 OSWER DIRECTIVE 9610 9
These criteria have been expanded from those requiring a “major”
emergency for Federal-lead response in States. This allows EPA to respond to
a wider range of releases on Indian Lands. Specifically, near-term has been
added to the criteria to allow for Federal-lead response on sites that pose a
less immediate, but still substantial threat. Immediate and near-term threats
are defined as follows:
• Ii.iediate threat : A release requires response within hours or days
of discovery. Examples include potential or actual liST explosions
or fires, or a release that is contaminating a public well.
• Near-tera threat : The release is time-critical, and requires
response within six months. An example includes a slow release of
petroleum spreading at a rate which will contaminate residences
within 6 months.
Since the OSC must give priority to responding to “classical” emergencies,
both in the removal program under CERCLA as well as the LUST program, response
to less urgent UST removals will depend on the availability of staff and
resources.
3.0 DELKG&TIONS
The procedures for initiating Federal-lead corrective actions on Indian
Lands are covered by the delegations specified in the Federal-lead guidance on
UST corrective actions in States. Federal 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 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 On-Scene Coordinators.
4.0 APP *L 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’s Regional personnel are also
responsible for assisting in the initial evaluation of the site and gathering
of information necessary to support a request for Federal action. To qualify
for Federal-lead action a site must pose an immediate or near-term substantial
threat to human health or the environment, the Indian Tribe is unable to
respond, and the owner or operator must be unwilling or unable to carry out
corrective action properly and in a timely manner. Adherence to the
* * * DRAFT * * *
-------
S OSWER DIRECTIVE 9610 9
procedures set forth in this approval process ensures that Federal-lead
corrective actions on Indian Lands will be limited to sites that meet the
criteria in section 2.0 of this guidance.
To request Federal-lead corrective action, an individual designated by
Tribal authorities must notify the Regional Oil and Hazardous Materials (OHM)
Coordinator, or other designated Regional management official, that a release
has occurred. The UST Regional Program Manager will gather information about
the site through Indian Tribes and other Federal agencies, such as the Bureau
of Indian Affairs and the Indian Health Services, and will evaluate all
attempts made by Indian Tribes to locate the responsible party. The assigned
On-Scene Coordinator (OSC) and the UST Regional Program Manager will determine
whether the site qualifies for Federal response. If insufficient information
about the site is available from outside sources, the OSC, in coordination
with the lIST 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.O-16A
(Appendix A. 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.
4.1 Oral Request
Oral requests should be used 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. The OSC may take immediate
action to address the situation, utilizing the RA’s authority to approve
emergency obligations of up to $50,000.
The OSC, in coordination with the UST Regional Program Manager, when
possible, 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). This
information is similar to that required for an oral request for Federal-lead
corrective action in States, except that additional information is required on
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, which 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
* * * DRAFT * * *
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6 OSWER DIRECTIVE 9610 9
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 except that it includes sections
requiring 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. The action memorandum is reviewed by the
Emergency Response Division (ERD) Regional Coordinator and other appropriate
Headquarters official(s) prior to approval as prescribed in the Federal-lead
UST corrective action guidance document for States. The ERD Regional
Coordinator will communicate to the Region as quickly as possible the decision
to approve or deny the action.
5.0 ENFORC 1T ACTIONS
Enforcement actions may be required prior to the initiation of Federal-
lead corrective actions to ensure that every attempt is made to compel the
owner or operator to respond to the release. Potential responsible party
(PRP) searches and negotiations to secure owner or operator action should be
undertaken in most instances by Indian Tribes. Depending on the availability
of time and resources, the OSC shall undertake initial PRP searches and
preliminary discussions with PRPs, if necessary, to secure owner or operator
action.
Subsequent enforcement actions against owners or operators, including
cost recovery, should be coordinated by Regional UST personnel in conjunction
with other responsible EPA Offices. Due to the limited number of releases
expected to occur on Indian Lands, and the requirements for encouraging owners
or operators to respond to such releases prior to using Trust Fund monies,
cost recovery by Regional personnel will be necessary only in limited
instances.
6.0 INITIATING AND MANAGING FEDERAL-LEAD UST CORRECTIVE ACTION
The procedures 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.O-16A.
Procedures for initiating Federal-lead corrective action are outlined in
section 6.0 of OSWER directive 9360.O-16A. These include procedures for
accounting information, procuring EPA contractor and other services, and
obtaining assistance from other agencies.
Procedures for managing Federal-lead UST corrective actions are outlined
in section 7.0 of OSWER directive 9360.O-16A. These include information and
procedures for allowable costs, stabilization standards, ceiling increases,
reporting requirements, and operation and maintenance.
* * * DRAFT * * *
-------
7 OSWER DIRECTIVE 9610 9
APP 1DIX A: ORAL ftEQUEST INPORKATION
1. What Indian Tribal authority has jurisdiction over the site?
2. Is the person requesting Federal-response an official representative
of the Indian Tribe? If so, in what capacity does he or she serve?
3 Does the Indian Tribe have its own legislative authority that covers
this release?
4. Does the Indian Tribe have any formal agreement/relationship with
the State regarding UST cleanups or UST related programs?
5. Is the release from a leaking underground storage tank (see
definition in 9001(1) of SWDA)?
6. Is the released material a petroleum substance (see definition in
Section 9001(8) of SWDA)?
7. Location of release.
8. Time and date release was discovered.
9. Name, description, and general condition of facility.
10. Is the release a long-term or chronic problem?
11. Type and estimated amount of petroleum released to the environment.
12. Which of the criteria for Federal-lead response on Indian Lands in
section 2.0 does the release meet?
13. Number and proximity of persons potentially affected.
14. Increased threat to human health or the environment if response is
delayed or denied?
15. Ongoing efforts to respond to release?
16. Tribal authority’s ability and willingness to provide response, with
specific reasons for inability to respond (e.g., lack of authority,
technical expertise, qualified staff, or funding).
17. Efforts undertaken to locate owner/operator and pursue an
owner/operator-financed cleanup.
18. Type of action needed to mitigate or stabilize emergency (if known)
* * * DRAFT * * *
-------
8 OSWER DIRECTiVE 9610.9
APPENDIX B: ACTION MEMORANDUM
The Regional UST Manager, in conjunction with the OSC, must submit an
action memorandwn to initiate approval of a written request for Federal action
on Indian Lands and within 10 days of an oral request. The action memorandum
should address all of the topics outlined in Appendix C of OSWER Directive
9360.O-l6A, “State Request Letter Format,” in addition to the topics specified
below. 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 Manager and the OSC should attempt to gather the
necessary information through Indian Tribal authorities and other sources. If
the information necessary to substantially coxnp].ete the action memorandum is
unavailable from these sources, an on-site evaluation/investigation may be
undertaken if resources permit.
I. HEADING
DATE: (Month/Day/Year]
SUBJECT: Request for Emergency Federal-Lead UST Corrective Action on
Indian Lands
(Site]
ACTION MEMORANDUM
FROM: (Regional Administrator]
TO: [ 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 present, Indian Tribal authority’s role, the
cleanup time frame, and actions to date, including previous and current
actions to abate the threat. For specific instructions on these sections see
OSWER Directive 9360.O-16A, Appendix C
A. Location DescriDtion
B. Site and Incident Characteristics
* * * DRAFT * * *
-------
9 OSWER DIRECTIVE 9610 9
c. quantity and Tvt,es of Petroleum Substances Present
D. Indian Tribal Authority Capacity
1. Describe the capacity of the appropriate Indian Tribal authority to
oversee/conduct corrective actions.
• Discuss the appropriate Tribal authority’s past experience with UST
corrective actions. Has the Tribal authority ever
overseen/conducted an UST cleanup or petroleum spill? If so,
describe the incident and cleanup activities undertaken.
• Discuss the Indian Tribal auchority.’s experience with other EPA,
State, or local environmental programs
• Discuss the Indian Tribal authority’s experience in overseeing
contractors.
E. Actions to Date
IV. CRITERIA MET FOR TIME-CRITICAL FEDERAL-LEAD CORRECTIVE ACTION ON INDIAN
LANDS
Strict criteria must be met to justify Federal response to a petroleum
release from an underground storage tank on Indian Lands. The Indian Tribe
must be unable to respond, the owner or operator must be unable or unwilling
to provide adequate response, and, i’ addition, the release must pose an
immediate or near-term (within six months) substantial threat to -iman health
and the environment, thus indicating a time-critical situation. i time-
critical situation exists if:
• The release poses an immediate or near-term substantial threat of
direct human, animal, or food chain exposure to petroleum;
• The release poses an immediate or near-term threat of fire or
explosion;
• The release poses an immediate or near-term substantial threat to
public drinking-water supplies; or
• The release poses and immediate or near-term threat to a significant
population or substantial amounts of property, or poses substantial
threats to natural resources.
* * * DRAFT * * *
-------
10 OSWER DIRECTI.E 9610 9
Specific reasons why the site meets the above criteria should be
discussed in this section.
V. ATTEMPTS MADE AT SECURING OWNER/OPERATOR CLEANUP
See OSWER Directive 9360.0-16A, Appendix C.
VI. EXPECTED CHANGE IN THE SITUATION SHOULD NO ACTION BE TAKEN OR SHOULD
ACTIONS BE DELAYED.
See OSWER Directive 9360.O-16A, Appendix C.
VII. TYPE OF ACTION REQUESTED
See OSWER Directive 9360.O-16A, Appendix C.
* * * DRAFT * * *
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Definition of “Liquid Waste”
-------
PART 260 SUBPART B — DEFINLIIONS DOC: 9432.Oi’(BI)
Key Words: Waste Analysis, Liquid Waste, Free Liquids
aegulacions: 40 CFR 260.10(a)(25), 261.21.
Subject: Definition of “Liquid Waste”
Addressee: Chris Howell, Chemical Processors, mc,
5501 Airport Way south Seattle, WA.
Originator: David Friedman, Manager, 1aste Analysis Program,
Hazardous and tndustiral Wasce’Division
Source Doc: 9432.O1(8L)
Date: 6—28—81
Summary:
A liquid is any material that will pass through a 0.4-5 micron filter at a
pressure differential of 75 psi. If the material to be evaluated consists of
two or more phases, then the phases should be separated by centrifugacion or
other means prior to evaluating whether any of the phases meet the above defini-
tion. Free liquids as defined in §260.10 (a)(25) are defined as any liquid
which passes through the Paint Filter Test (method 9095).
-------
9432.01 (81)
3 S; 414
S ____ UNITED STATES ENVIRONMENTAL PROTETION AGENCY
_____ WASHINGTON. D.C. 20460
OFFICZ OF SOLID A TE
JU Lc 13G.
QFYtC or WATER
AND WASTE MANAGEMENT
Mr. Chris Howell
Qiemical Processors, Inc.
5501 Airport Way south
Seattle, WA 98108
Dear Mr. Howell:
I am in receipt of your letter of June 1, 1981 to Mr.
Ken Schuster regarding your request for a working definition
of a ‘liquid’ waste.
As you are aware, the Agency is actively working to
develop improved laboratory procedures for defining both’
‘ignitable” and ‘liquid.’ In the interim you may employ the
following working definition of a “liquid’ when
evaluating wastes:
A liquid is any material that will pass through a 0.45
micron filter at a pressure differential of 75 psi. If
• the material to be evaluated consists of 2 or more phases
then the phases should be separated by centrifugation or
ether means prior to evaluating whether any of.. the phases
meet the above definition. ‘Free liquids’ as defined in
S260.lO(a)25 are a subset of this broader class of liquids.
Any waste o phases of a waste found to meet the above
definition of a ‘liqutd ’ should then be evaluated for ignitabilitv
using the procedures in S261.21. AU such wastes which contain
or consist of liquids which have a flash point below 60 ’C are
to be considered as ignitable wastes.
I hope this response serves to answer your question. If
you would like further information please feel, free to give
me a call at (202) 755 9187.
Sincerely,
David Friedman
Manager
Waste Analysis Program
Hazardous and Industrial Waste Division (WE—565)
-------
Determining If the Soils from Missouri
Dioxin Sites are Hazardous
-------
2ART 261 SUBPART A — GENERAL DCC: 941’L.O1(84)
Key cjor s: Contaminated Soil, Dioxin
Regulations:
Subject: Determining if the Soils from Missouri DioxIn Sites are Hazardous
Aadressee David Wagoner, Director, Air and Waste Management Division,
Region VII -
.Originator: John K. Skinner, Director, Office of Solid Waste
Source Doc: 9441.O1(84)
Date: 1—6—84
Summary:
To determine if a soil, in which toxic compounds are present, is a RCRA
hazardous waste, the origin of the toxicants must be known. I.E the exact origin
of the Coxicants is unknown, the soil is not considered RCRA hazardous unless
it exhibits one or more of the characteristics of RCRA hazardous waste.
-------
9441.01 (3
sJt.,i —
: 1ORXN W4
SU3JECT: Soils from isscuri Dioxin Sites
JCr.n . s:
-------
Definition of “Treatment”
-------
250 SUBeART B — D FINLTI0N DCC: 9432.01(85)
ey Words: Treatment, Containers, Authorized States
aegulaciOns: 40 CFR 260.10
Subject: Qefirtition of Treat nenC
Addressee: Robert F. Walter, Office of Environmental Health and Safety,
Virginia Commonwealth Universit-y, B x 112, Richmond, VA 23298
Originator: John H. Skinner, DirecCor, Office of Solid Waste
Source Dcc: #9432.01(85)
Date: 6—2685
5um ary
The letter clarifies the definition of “treatment under RCR.A. In light
of that definition, the puncturing, crushing, or shredding of containers holding
hazardous waste does not constitute treatment as defined under RCRA.
-------
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-------
Interim RCRAJCERCLA Guidance on
Nön-Gontiguous Sites and On-Site
Management of Waste and
Treatment Residue
-------
,tOS’4Pp,
‘1
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. 0 C. 20460
MAR 2 7 986
MEMO RAN DTJ M
SUBJECT:
FROM:
Interim RCRA/CERCLA Guidance on Non—Contiguous Sites
and Op-Si e Ma9a ernent of Waste and Treatment Residue
)‘ ai
J. YWinston Porter
Assistant Administrator
Regional Ad iiniStratOrS
Regions I — X
Region VI has recently raised several RCRA/CERCLA interface
issues that have broad implications for remedial actions at
many other Superfund sites. The purpose of this memorandum is
to lay Out EPA policy on several of these issues, including:
1. Combined treatment of CERCLA waste from non-contiguous
locations;
2. On—site disposal of treatment residue;
3. Limitations on the construction of hazardous waste
incinerators for on—site CERCLA use; and
4. Off—site treatment of waste and redisposa]. on—site.
This memorandum and attachment represent interim guidance
which should be used now, but will be refined following regional
review. Please submit your comments on this interim guidance to
Betsy Shaw (FTS 382—3304) of the Hazardous Site Control Division,
Office of Emergency and Remedial Response by April 28, 1986. We
are particularly interested in comments which address the impli-
cations of this guidance for Superfund removal actions at both
NPL and non—NPL sites.
OFFICE OF
SO* .IO WASTE A 4O EMEMGEP4CY ESPONS
9347 • 0 —1
TO:
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9347.0—].
—2—
Select RCRA/C RCt.A Issues :
1. Combined treatment and/or disposal of CERCt .A waste from
n—cOntigUOuS NPL sites
NPL. sites may be combined for remediaL action if the
following statutory criteria are met: the sites must be
geographically close or pose similar threats to public
health and the environment (CERCLA S104 (d)(4)). If combined
remedial actions will involve the transport of waste from
one site to another site, the wastes must be compatible for
the selected treatment or iisposal method and managed in a
manner that is part of the highly reliable long—term remedy
selected for that site or group of sites. Combined remedies
must be cost-effective and should not result in any significant
additional short—term impacts on public health and the
environment at the receiving site. As in every case, CERCLA
waste which is transported must be manifested. The Record
of Decision (ROD) for a remedial action that involves more
than one site should state that several sites are being
treated as one and that their combined treatment constitutes
on—site action. (See attachment.)
2. On—site management of waste and treatment residue
EPA interprets CERCLA to require that off—site treatment,
storage and disposal of hazardous wastes comply with all RCRA
requirements, including permitting. With respect to on—site
disposals the national Contingency Plan (SO FR 47912,
November 20, 1985) requires that CERCLA activities meet the
technical requirements of RCRA (and other Federal environmental
reguirementS) that are applicable or relevant and appropriate 1
while the procedural requirements, such as permitting, need
not be met.
Waste and treatment residues may be managed on—site
in several ways. The approach selected will depend on the
cost—effectiveness analysis at each site. One approach is
to remove the waste (and treat if desired) and dispose of
the waste and/or treat.nent residue in a new on—site land
disposal unit. This unit would meet the technical RCRA
Subtitle C land disposal requirements of 40 CFR Part 264
(e.g. S264.301 design andoperating requirements 1 and land
disposal closure and post closure care requirements in
S264.3 10)•
I “Applicable requirements” are those Federal requirements that
would be legally applicable if the response actions were not
undertaken pursuant to CERCE.A 5104 and §106. “Relevant and
appropriate require’TtentS” 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.
-------
9347.0—1
—3—
The second approach al1ow waste to be removed, treated
and the residuals to be replaced in the area from which they
originated. The area would then he ca2oed and monitored
consistent with the technical requirements of land disposal
closure CS264.310). Under this approach, a double liner!
leachate collection system would not be required if the
wastes are removed during closure for the purpose of treating
them to enhance the effectiveness of the closure.
A third approach requires no further management of waste
or treatment residue if the waste can be eva].uated, deter-
mined to be non—hazardous and deListed. This would normally
entail preparing a delisring analysIs using the Vertical and
Horizontal S ,read (VHS) model (50 FR 48886, November 27, 1985)
or other zimil r generic mods ls that do not consider site
specific factors. A delisting petition is not required for
on—site CERCLA actions.
Finally, the National Contingency PLan (40 FR 47947 —
47948) provides for selection of a remedy that does not
attain applicable or relevant and appropriate requirements
if: 1) the alternative is only an interim remedy; 2) the
need to use the Fund at other sites outweighs the need to
implement a remedy that fully attains all requirements;
3) it is technically impractical to implement a remedy that
meets all applicable or relevant and appropriate requirements;
4) meeting all such requirements will, result in an unacceptable
environmental impact; or 5) there is an overriding public
interest related to enforcement.
The determination that RCRA requirements for treatment,
storage and disposal will be met should be made during the
Remedial Investigation and Feasibility Study (RI/FS). In
the case of incinerator residue, a waste analysis should
be conducted during the RI to provide the necessary data.
Subsequent analyses, including a test burn, may be conducted
during Remedial Design (RD) as appropriate on a case by case
basis. Assurance of the consistency of the remedy with
P.CPA and other applicable or relevant and appropriate
Federal requirements should be presented in the ROD, and,
if appropriate, reviewed again during RD.
3. Limitations on the construction of hazardous waste incinerators
for on—site CERCLA use
If an incinerator is to be constructed for on—site
remedial action, there should be a clear intent to dismantle
or remove the unit after the CERCLA action is completed.
Dismantling or removal should be a part of the remedy presented
in the ROD and funds should be included in the financial or
contractual documents. Should there be plans to accept
commercial waste at the facility after the CERCLA wastes have
been treated or destroyed, it is EPA policy that a RCRA
permit be obtained before the unit is constructed. (See
attachment.)
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9347. 0— ].
—4—
4. off—site treatment of waste and redisoosal on—site
On—site disposal may involve transport of waste off—site
for treatment or storage if the CERCLA waste or treatment
residue.. is ultimately disposed of at the site of waste origin.
For this activity, the CERCLA waste .is manifested to and from
the site and maintained separately throughout all off—site
activities.
If you have any questions regarding this memorandum or
attachment, please call Betsy Shaw or Bill Hanson (FTS 382—2345).
Attachment -
-------
9347.0— i.
Attachment: Interim RCRA/CERCLA Guidance on Non—Contiguous Sites
and On—Site Management of Waste and Treatment Residue
Combining Hazardous Waste Sites for Remedial Action
Background :
Several situations have arisen where it may be advantageous
to combine several NP!. sites together for the purpose of conducting
a more effective remedial action. Subject to the requirements in
CER CLA 5104 (d)(4), sites in proximity to one another, sites with
sLmilar wastes, and sites with the same PRPS may be good candidates
for combined remedial actions. A treatment system or incinerator,
Ear example, may be more efficient treating wastes from several
sites. Expected economies of scale would lower the unit costs
and favor more reliable technologies. Overall, protection of
public health and the environment may increase if the waste of
several smaller sites are combined at a central treatment or
disposal location.
Legislative Authority : Section l04(d)(4) of CERCLA states that
non—ContiguouS sLtes may be treated as one site when the separate
sites are reasonably related on the basis of:
1) Geography: or
2) Threat or potential threat to public health and the
environment.
Cost—Effective Reasons for Combining NP!. Sites for Remedial Action
Several different circumstances may occur that favor combining
site remedial actions.
Example 1: Incineration is effective for destroying wastes
at several closely arrayed sites. One alternative
is to use a mobile incinerator at each site.
P nother alternative that may be cost effective is
to incinerate the wastes of several sites at one
location. The residue could be disposed at the
original site but, again, it would probably be
more cost—effective to dispose of all ash at the
same location.-
Example 2: Construction of a new ort—si€e land disposal facility
has been found to be cost effective at site A.
Wastes at nearby site B are similar in character
and a small quantity needs to be managed.
Site B wastes could be managed on—site but it
could be less expensive and more effective to
dispose of the waste at Site A.
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—2— 9347.0—].
ExampLe 3: Site A and Site 9 have similar wastes and are
close to one another. RCRA closure with a cap
has been found to be cost effective at both
sites. It may be cost effective to design and
remedjate both sites at the same time. Therefore,
the State or Region would like to contract with
one design firm and one construction company to
undertake both remedies.
Regions should identify opportunities to combine RI/FSs
for several NPt. sites in the Site Management Plan or other pre—
remedial activities. Combining RI/FSS may improve the timing
and effectiveness of remedial actions and should be shown in the
Superfund Comprehensive Accomplishments Plan (SCAP).
Criteria for Treating Non—Contiguous Sites as One
The September 21, 1984 NPL. listing (40 FR 37076) provides
the flexibility to respond to several sites listed separately on
the NPL. with a single response if the statutory factors are met
and it appears cost—effective to do so.
The following criteria would be used to treat nL,n—contiguous
sites as one when transportation of the waste is involved:
1.. Sites are reasonably close to one another;
2. wastes must be compatible for the selected treatment or
disposal approach;
3. wastes that are transported to another site need to be
managed in a manner that is part of a highly reliable,
long—term remedy; 1 and
4. Incremental short—term impacts (e.g. sudden releases,
fugitive dust and fumes) to public health and the
environment at the receiving site will be minimal.
(This factor is important when the receiving site is
located near a residential community.)
of course, the remedy must also be cost—effective by either
costing less or by providing increased or more reliable protection
of public health and environment than two separate remedies.
When short—term impacts are found to be significant, combining
sites may be determined to be inappropriate and the remedy may
be reconfigured. Options include but are not limited to:
I This type of remedy generally is defined as:
a. Requiring little or no long—term active O/M;
b. Relatively low probability of release to the environment;
c. If a release did occur, it would not endanger public
health or the environment.
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—3 —
1. Use another hazardous waste site where there would be
fewer impacts;
2. Pretreat wastes at the original site locations
(e.g., metal extraction) or improve materials handling
procedures;
3. Dispose of treated residuals (e.g., incineration ash)
at originating sites.
If incremental short—term impacts are significant and cannot be
mitigated. then non—contiguous sites should riot be treated as one
for the purpose of combined treatment or disposal r’ gard]. ss of
cost—effectiveness.
C!RCLA Comoliance with Other Environmental Laws
tinder response actions occuring at non-contiguous sites which
are treateJ as on—site actions, Superfund or PRPs under an EPA
approved enforcement action would:
1. Manifest hazardous wastes transported to another
site;
2. Meet the applicable or relevant arid appropriate technical
r quirements o.f RCRA TSD facilities but would not be
recuired to obtain RCRA permits.
Limitation: The cost of dismantling or removing a treatment or
storage unit constructed as part of an on—site
remedy should be factored into the determination of
• the tost—effectiveness of that remedy. If that
• alt rnative is selected, funds for the dismantling of
the unit should be included in the remedy obligation.
Should therebe plans for a treatment or storage
unit tonstruc ted as part of an on—site remedy to
accept comneräial wastes after the CERCLA waste has
been processed, it is EPA policy that a RCRA permit
be obtained before the unit is constructed. The
cost and scheduling implications of obtaining a
permit should ‘also be factored into the analysis of
cost—effect iverie s.
Prooosed Imolementat ion Process :
1. Initial, evaluation of NPL sites to determine if the
I/FSs of several sites should be combined. Show
combined RI/FS5 on SCAP.
2. Feasibility Study recommends that a combined site action
would be cost—effective. Further, the Feasibility Study
shows that the selected remedy meets the necessary criteria
of this policy. (The NPL need not be amended.)
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9347.0— I
—4 —
3. A joint public comment period is held to seek comment
from all interested parties on the proposed consolidation
of sites and a responsiveness summary is written.
4. RêgiOnal Administrator or Assistant Administrator signs
Record of Decision for nort-coritiguous site action.
5. A new Record of Decision, public comment period and
responsiveness summary would be required if additional
sites are added to the response plan after the first
Record of Decision.
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Responsibilities of Regional RCRA Off-Site
Disposal Contacts
-------
^* ••'•pw
•~.\_
• UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O C. 20460
OFFICE OP
SOUlO WASTE AND EMERGENCY RESPONSE
' MEMORANDUM
SUBJECT: Responsibilities of Regional RCRA Off-Site Disposal
Contacts
FROM: Jerry Kotas, Chief
Compliance & Implementation Branch
TO: RCRA Enforcement Branch Chiefs
Regions I-X
It has come to our attention that CERCLA personnel have
experienced some difficulty in obtaining timely facility compliance
status information from Regional RCRA Off-Site Disposal Contacts
(RROCs). CERCLA off-site disposal decisions related to emergency
cleanups were delayed because the RROC was on travel, on vacation/
or otheswise unavailable, and no other person in that Region
had been designated to act as a substitute for the RROC. On
one occasion, it took a CERCLA On-Scene Coordinator several
cays to make contact with an RROC. In light of this, please
designate an alternate RROC and provide me with the names,
addresses, and phone numbers of both your lead and alternate
RROCs within 2 weeks. Please note that, as the names of
designated RROCs or their alternates change, you should notify
this office as soon as possible.
Please be reminded that each Region is responsible for
providing timely facility compliance status information to
CERCLA response personnel. If the designated RROC is unavailable,
the alternate should be available to respond to such requests
for information. Secretarial staff should be informed that
such requests should be addressed to the alternate. This will
assure that off-site disposal of CERCLA wastes will proceed as
quickly as possible, especially in the case of emergency actions,
and in keeping with the mandates of the CERCLA and RCRA programs.
In addition to the above, an upcoming initiative related
to the adoption of the "Procedure for Planning and Implementing
Off-Site Response Actions" (Off-Site Policy) by other Federal
agencies is expected to increase the frequency of inquiries
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—2—
that RROCS will receive regarding facility compliance status.
This will make the designation of an alternate, to respond in
the absence of the RROC, even more critical. As many of you
know, GAO recommended in a recent report that EPA encourage
other Federal agencies to adopt the Off—Site Policy for disposal
of response—related and other hazardous wastes. That recommendation
is based upon the premise that no Federal wastes should be
sent to facilities which may pose current or future threats to
health or the environment.
The Assistant Administrator for OSWER has endorsed that
recommendation, and discussions with other agencies are underway
on this topic. Representatives from other agencies will be
given the names of the RROCs and alternates as the source of
information on ‘eligibility of facilities within the Region.
It is important that the RROC or the alternate be available
for representatives from other Federal agencies 1 as well as
for EPA personnel managing CERCLA response actions.
There are several other activities related tO the Off—Site
Policy in progress and I would like to briefly summarize them
for you. In the very near term, interim guidance will likely
be issued from the Assistant Administrator on whether and how
to provide notice, and an opportunity to confer, to facilities
which are deemed ineligible under the Policy. Final revisions
to the policy (including any changes to the notice procedures)
will be issued in May, 1986 or therabouts. OSWER will also
prepare guidance and forms for maintaining and reporting
information related to both facility status and disposal
location for CERCLA wastes.
We will try to keep you informed as to the status of each
of these efforts. If you need any further information on the
new initiatives mentioned above, please contact Mike Kilpatrick
at (FTS) 382—4812.
Thank you for your cooperation in this matter.
cc: Regional RCRA Off—Site Contacts, Regions I—X
Lee Herwig, OFA
Mike KilpatriCk, OWPE
Tim Fields, ERD
superfund Branch Chiefs, Regions I—X
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Use ofibicwids:for Wind Dispersal Control
at Hazardous Waste Landfills
-------
Ut II 5iai.s Olica f
En .u’3e r, .qnau P w.c ’on SoI.d wait. .
€mifqsv’cv R.s oøs.
DIRECTIVE NUMBER: 9487.00-lA
TITLE: Use of Liquidsi for Wind Dispersal Control
- at Hazardous Waste Landfills
APPROVAL DATE:
EFFECTIVE DATE:
ORIGINATING OFFICE:
FINAL
0 0 RAFT
STATUS:
REFERENCE (other documents):
P.-- r)cwc.P C Q1fllC’P
?ECTIVE DiRECTIVE
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I uNIT! STATZS EN’IrR ,NMENTAL P OTECTI0N AGENCY
WASHINCTON. O.C. 20460
:.APR 2 11986
OPFICE OP
$0 1.10 WASTE ANO EMERGENC’r RESPONSE
OSWER POLICY DIRECTIVE 19487.00—lA
MEIORANDUM
SU3IECT: Use of Liquids for Ji d Dispersal Control at
Hazardous Waste Landfills
:ROM: MarCia Williams, Director ‘
Office of Solid Waste (WH—562)
Robert L. Duprey, Dfrector
E?A Region VIII
Waste Mana;e tent Division (8—HWM)
This is in response to your request received in November
1935 for guidance concerning the question of under what
conditions, if any, it is acceptable to use water or other
liquid chemical stabilizers to control wind dispersal of waste
in a landfill cell. We believe that the use of norihazardouS
liquids for wind dis3ersal control at hazardous waste landfills
should not be subject to the restrictions under Section 3004(c)(3)
of HSWA. This use must, of course, be limited to amounts necessary
to comply with wind dispersal control requirements. Such amounts
should be determined by regulatory authorities on a case—by—case
basis.
As stated in your memorandum, Sections 264.301(f) and
265.302(d) require the owner or operator of a landfill
containing hazardous waste that is subject to wind dispersal
to cover or otherwise manage the landfill to control such
dispersal. -Since the liquids that are .used to cor trol wind
dispersal are usually nonhazardous (e.g., water),a response,
to your question is contained in a guidance we l ave drafted
concerning Section 3004(c)(3) (which addresses the placement -
of iionhazardous liquids in hazardous waste landfills) of the
1984 Hazardous and Solid Waste Amendments (HSWA) to RCRA.
This draft guidance wil]. be sent to the regionâ’l offices in
the near future.
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2
osw a POLICY DIL CTIVE 9487 .OO—1A
We believe that the language and legislative history of
SectIon 3004(c)(3) specifically, and of Section 3004(c) generally,
indicate that Congress’ primary concern in banning liquids was to
control the placement of liquids in landfills for treatment,
storage, and disposal. We believe, further, that Congress
did not intend to require owners and operators to apply for
an exemption for uses of nonhazardous:liquids in or near a
landfill that are necessary in order t’o comply with, the
technical requirements of the RCRA regulations.
You also inquired in your memorandum how wind dispersal
control, including th,e .use of liquid agents, was being managed
at other sites nationally, and under what conditions. It is
u nfortunate that we have litt]..e information concerning the
national management of wind dispersal. We do know, however,
that the use of water appears to be a common management practice
for control of wind dispersal for dust and particulate matter.
Other methods include waste containerization, use of cover
material (soil and other waste), and waste treatment before
disposal (e.g., chertical fixation, carbon adsorption).
We hoDe this rewonse clarifies the issue. If you should
have any additional comments or concerns, please contact
Paul Cassidy, of my staff, at FTS—382—4682.
Let me say finally that we were very impressed wi ’th your
full and perceptive analysis of the issue of the limited use of
liquids for controlling wind dispersal.
cc: EPA Regions I — VII and IX — X
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Consideration of RCRA Requirements
inPertorming CERCLA Responses
at Mining Waste Sites
-------
UN’7Z ST 5 NVIRONM .NTAL c . A ZENZ
WASHINGTON 0 C 20.:6
923 O—4
1 9 ! a
ME MO R A NO ! J M
SUBJECT: Consideration of RCRA Requirements In Performing
C!RCLA Responses at Mining Waite Sites
FROM: Henry L Longest II, Director
Office of Emergency and Remedial esponse
TO: Waste Management Division Direcors -
Regior.S I — X
As you know, on July 3, 1986, the Ageicy issued a final
determination on whetner mining waste would be regul ated under
Subtitle C of RCRA (copy attached). This determination was
based on a report to Congress mandated by RCRA Section 3001(b)
(3)(C) and subsequent publIc comments. The determination is
that mining wastes will not be regulated under Subtitle C at
this time. This conclusion Is based on the bell ef that several
aspects of EPA’S current hazardous waste management standards
if applied universally to mining sites, are likely to be environ-
mentally unnecessary, technically infeasible, or- economically
impractical.
However, givel the concern about actual and potential mining
waste probi ems, the Agency intends to develop a program for
regulating mining waste under Subtitle D. The current Subtitle 0
program establishes criteria principally aimed at municipal and
industrial solid waste which focus on standards related to surface
water discharges, groundwater contamination and endangered species.
Modifications to this program will focus on Identifying environ-
mental problems, setting priorities for applying controls at
sites with a high potential for risk, and employing a risk manage-
ment approach in the development of appropriate standards to
protect human health and the environment, as necessary, Including
closure options, tailored controls, pretreatment of wastes prior
to disposal, and cleanup options. Revlsionsto Subtitle D criteria
are expected to be proposed in mid—1988; however, EPA has reserved
t 1e option to reexamine a modified Subtitle C in the future if
this approach is unworkable or- i nsuffi ci e’it.
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—2—
n the interim, Superfund will continue to address mining
waste problems through the RI/FS and R0D/ DO processes taking
Into account current Subtitle 0 requirementS as well as options
for dreSsing risks not addressed by Subtitle 0 requirements.
To address such remaining risks, you may wish to consider the
technical requirements of Subtitle C regulations during the
initial review of remedial alternatives. If these requirements
seem to be tect nlCallY infeasible, they may be rejected early In
the creefliflg process. If Subtitle C approaches appear to satisfy
the criteria found In sectIon 300.68 (g) , Initial Screening of
Alternatives, of the NCP, they should be considered in the detailed
analysis. Other remedial alternatives should be evaluated in a
risk management analysis. In some cases, a combination of Subtitle
C and risk analysis approaches may be used to address a discrete
phase f response. All data generated during remedial planning.
including the basis for selection of specific remedies, should
be forwarded to my office as it becomes available so that the
information can be transmitted to 0 5W to assist that office In
its development of standards for mining wastes.
A:: a chm eat
cc: Marcia Williams, nSW
Gene Lucero, OWPE
Dan Berry, OGC
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Thursday
July 3, 1986
Part V
Environmental
Protection Agency
40 CFR Part 261
Regulatory Determination For Wastes
From the Eitraction and Beneficiation of
Ores and Minerals
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: 496
Federal Rc2:ster / Vol 3t. Jo : / Thursnav. July 3. 1986 / Rules arid Re ulatiorzs
ENVIRONMENTAL PP T ’1ON
AGENCY
40 CFR Part 261
(FRL 3033 —71
Regulatory Determination for Wastes
from the Extraction and Beneficintion
of Ores and Minerals
*neiicrt Environmental Protection:’
Agency 2 - -. — - -
acno,c Regulatory determine tion. ‘ -
suuMaav: This is the regulatory -
determination (or solid waste from the
extraction arid beneftmation of ores ann
mineraLs required by section
3001(bfl3 )(C) of the Resource
Conservation and Recovery Act
(RCRAJ. This section of RCRA requires
ne Administrator to determine wrietner
to promuigate regulations under Suoutle
C of the Ac: for triese wastes or
netemiine that sucri regulations are
unwarrontea the Awninistrator must
maxe this determination rio Later tnari
six months after corripteting a Renor: to
Congress on these wastes ann after
public nearings and the opporuniry to
comment on the repor._After compteurig
these activities and reviewing the
information available, the Agency has
detemuned that regulation of the wastes
studied in the Report to Congress. i.e..
wastes from the extinction and
berieflcation of ores and minerals.
unset Suoude C is not warrantee at this
time.
AOORES The address for the
Headquarters docitec is: United States
Environmental Protection Agency. ZPA
RCRA docket (Sub-basement). 401 M
streeLSW,. Washington DC. 20460. (202)
47S- V. For further details on what the’
EPA RCRA docket contains. see Section
VU. of this preamble. titled “E pA RCRA,..
Docket” under “5UPP EMENTARY
INFORMATION..”.
FOR FURThCR INFORMATION CONTACT’.
RCRMSuperfund Hotline at (800) 424—
9346cr (202) 382-3000 or Dan Deriucs at
(202) 382—2791.
SU (1JIENTARY IMFORMAflOIC
L Summary of Decision
IL 8a ground
I lL Legal Autzionty
IV. Report to Conoess
V. Aeptacation of Subtitle C to Mining Waste
Vt. Aoolication of Subtitle 0 to Mining Waite
VIZ. EPA RC A Oocxet
Supplementary lniorrrzatzon
1. Swrrnc.”y
ai. aiiaoie iza(orniauort. EPA ha, -inc aoanaoned surface and underground -
aetermined ttiat resulatlon of mirurig , mines on the envirOnment, including, but not
waste unset Suotitle C of the Resource Limited to, the effects of such wastes on
Conservation and Recovery Act (RC AJ riumans. weter. air. nealih, weUare , end
is riot warrantee at tms time, natural resources. cne on the aoeguacv of
This conciusion is oasea on EPA s means and measures currentiy employed by
oeiiei that several asoects of EPA s the mining industry. Government agencies.
c’.irrenc hazarcious waste management ait@ otners to dispose of and utilize such solid
staccatos are Likeiy to be c’-—’ . .: w.sieu to prevent or suostsntially mitigate
environmentally unnecessary. —- .‘.Z... suca inverse ei’fecis.
technically infeasible. or economica study was to include an analysis
imoracucal wnen applied to mining... -
waste. While uncer existing law Ep.4.i . —
would have some flexiblity to modify “ 1. The Sources and voluni of!
— stannard.s for nazareous waste ‘ . . discarued material generated per year”
management as appiied to these wastes. ,fl ’0 mmiri
there are substantial questions about - - -— 2. Pteseiit disposal practices:
wriether the flexibility macrent in the T’’ 3. Potential danger to human healtif
statute coupled with the Agency’s ,_z: and the environment from surface runoff
cw’rent cata on these wastes provide a - of leacnate and air poUuuon by dust
sufficient oasis for EPA to develop a - , Alternatives to current disposal
riuning waste program uncer Subtitle C” mathods
that anoresses the risks presented by 5. The cost of those alternatives in
mining waste wnile remaining sensitive terms of the impact on mine product
to the uniaue pracical demands of
mining operations. Given tnese .. costs: and
tincertatnues. EPA coes riot intend to 6. Potential for use of discarded
:rnoose Suot:tle C concrois on mining material as a secondary source of the
waste at this - mine proaucL
The Agency. nowever, is concerned . On May 19. 1980. EPA promulgated
aoout certain actual ace potential - regu.Lauons unset Subtitle C of R .A
mining waste proorexus. and therefore .. ‘ wnica covered, among other things.
pians to develop a program for m,i ,ng - ‘: “solid waste from the extraction. -
waste unset Subtitle 0 of RCRA. The - - beneficiation. and processing of ores -
long-term effectiveness of this program and minerals.” i.e.. mining waste. On —.
depenos on available State resources for October 21. 1980. just before these -
designing and implementing a program Subtitle C regulations became effective. -
tailored to the neens of eaca State. and ‘ Congress enacted the Solid Waste
on EPA’s ability to oversee and enforce Disoosal Act of 1980 (Pub. L. 96—482)
the oroemni. As noted below in section which added section 3001(b)(31(AUii) to
V I. EPA will be wanting with the States RCRA. This section pronibits EPA from
to determine the seecific nature of their regulating “solid waste from the
current mining waste activities and their exeacuon. beneficiation. and processing
future plans to administer sucti - of ores and minerals, including
programs. The A mt1Ii.tration will work pnospaate rocz and overburden from the
with Congress to develop expanded - - m,ntng of uranium ore” as hazardous . -
Subtitle 0 authority (i.e.. Federal . —. waste under Subtitle C of RQ A until at
oversigni and enforcement) to support least six months after the Agency
an effective Stste-tmptemented program completes and submits to Congress the
for mining waste. EPA has already made studies required by section 8002(fl. and
p&’nnlnary contacts with Congress -‘ by section 8002(p) (which was aLso
intends to hold detailed discussions on added to RCRA by the 1980
the specifics of the Suotitle 0 program amendments).
the coining year. In e interim. EPA Will Section 8002(p) required EPA to
use RCRA section 7003 and
sections 104 and 106 to protect against - perrorm a comprenensive StuC on the
suostantial threats and ,mi inent cisposal and utilization of the waste
hazards. If EPA’is unable to develop excluded from regulation. La,. solid
waste from the exuaction. beneficiatlon.
effective mining waste program under and processing of ores and minerals.
Subtitle 0. the Agency may find it -
necessary to use Suotitle C authority in including phosphate rock and
the future , overnureen from the mining of uranium
crc. This new stucy. to be conductec in
II. Sackground cor.iunc:son with the section 8002(f)
Section 8002 (fi of the Resource stuav. mancated an analysis of:
Conservation anc Recovery Ac: of 1978 1. The source ann volumes of such
cirec:ed EPA to concuct: materiais generatec per yeart
A deta,ied inn :omorenens.ve ,tucv an 2. Present disposat and uc:lization
inverse ejjsc:s oi mud wastes front sc:ive practices:
Basec on tne Reocrt to Congress.
comments on Inc report. ar.c otrier
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FederaL Renister I VoL. 31. No. ::3 / Thurscav (ulv 1. 1986 / . s and Re uiatior .z
24497
I Potertual danger. it any. to human
,eaith and inc environment from the
cisoosal ano reuse of suco matenalsi
• Documentec cises in wnicn danger
to nunian neatta or Cite environment nu
Deen roved:
3. Alternatives to c rcnt disposal
n iethods
6. The costs of such alternatives:
7. The impact at these alternatives on
the use of pnospnace rock and uranium
ore. and other natural resources and
& The current and potenoal utilization
OiSuc.1 materials.
The 1980 amenc.itents also added
.ie::ion 3001 (b)(3 1(C1. wrucit requires the
Ac.ntinistrator to maxe a “regulatory
eterminaugn ” regaruing the waste
excauaea from Suontle C regulation.
Soecfically within six month., after
suomictrog the Resort to Congress. and
after holding puouic hearings and taking
puoiic comment on inc reocri, the
Adnunisuacor must “determine to
uromuiqate regulations” under Subtitle
C ci RC .A for ninu%g waste or
eterrnrne titat sucn regwations are
. i i iwarrantecL ”
EPA was recuired to coingiete the -
stucy and suomit it to Congress oy
Oc:ooer 16.1983. La 1984. toe Concerned
Ctzens of Mamstowu and the
Environmental Defense Fund sued EPA
for fathzig to complete the section 6002
stunies and the reguLatory detezinination
ny inc statutory ceadlines. The Disuwt
Court for the Distrc. of CoLumbia
orcered EPA to c no&ete the stunies by
Deceinoer 31. 1985. arid to publish the
remuacory deternunanon oy June 30.
1986.
EPA submitted its Report to Congress
ott mining waste on December 31. 1983.
A nouce announ g the availability of
the report and the dates and locations
of public hearings. w s published
January 8. 1988 (51 FR 7773. EPA held
puouc nearings on the resort in Tuceon.
Arizona on Mama 6. 198& Washington.
DC on Mama IL 98t and Denver.
Colorado on March 13. 1986. The
continent period on the report closed
March 31. 1986. This notice constitutes
tae Agencys regulatory determination
for the wastes covered by the Report to
Congress. i.e. wastes fro tha
extraction and beneiiciaiaoti of ores and
minerals.
On October:. 1986. EPA proposed to
narrow the scooe of the mining Waite
exciusion in R .A section
CCZ (bJ(3 )(A)(itl. as ;t auoues to
pocessing wastes (50 FR 4029:;. Under
: :s proposal, wastes tnat wouic no
::r.oer oe coverea by inc mining waste
exc:usion wou&d oe suotect to Luoutle C
:nev are rtazardoua. These
reernreted wastes were not
.r. tne nir.ir.g waste Report to
C. r.eress and !hereiore. are norcovered
mis re uiatory determination.
ilL Lesal Authority
EPA has concuaed that its dec:sion
wnetner to regulate mining waste unbar
Suotitle C snould oe oases not pust on
whetner mining waste is hazardous (as
currendy aeünea by EPA regulations)
out also snouid consider the other
factors that section 8002 required EPA to
stucy. The basis of this conclusion is the
language of section 300l(b)(3flA) womb
states mat inc regulatory determination
must be bases on information
ceveiooed or acuwnuza ted pursuant to
(the section 8002 stuaies(. public
tearings. and comment.. . . Clearly.
Congress envisioned that the
ceternunation would be based on all the
factors enumerated in sections 8002 (fl
anti (pJ. Congress already knew that
some nunine waste was hazardous.
sinCe the RCRA Subtitle C regulations
wnicn were promuigated on May 19.
:980 were to anpiv to nazarnous (both
:naracteristic and listedl mining waste.
Canuress anoarendy oeiieved. however.
nat EPA scotia outain and consider
aac.zuonal information. not ‘ust data on
wiuco types of mining waste axe
hazaruous. before imposing Subtitle C
regulation on these wastes. Accordingly.
this regulatory determination is based
on consideration of the factors listed in
sections 8002 (1) and (p).
In reviewing the factors to be studied
wr.zcb are listed in sections 8002 (fl and
(;j. and the legislative nistory at these
arid airier mining waste provisions. EPA
has conduced that Congress believed
mat certain factors are parucularty
inioortant to consider in making the
Suontle C regulatory determination.
First. Congress instructed EPA to study
the potential dangers to human health
and the environment from mining waste.
indicating that the decision to regulate
unset Subtitle C must be based on a
finding of stub a danger. Second. section
8002(p) required EPA to review the
actions of other Feceral and State
agencies wiuca deal with mining waste
“with a view toward avoiding
duplication of effort” From this
provision. EPA canclunes that Congress
believed Subtitle C regumauon might not
be necessary if other Fetieral or State
programs control arty risks associated
wtmti mining waste. Third. Congress
exoecred EPA to anal me fully the
:isoosal practices at me muting industry
wni;n. woen reac :n coniuncuon with
:ne Leuisiar.ve nistor, of di:s orovision,
indicates cor.cern aoout inc ieasiothty
of Subtitle C controis for mining waste.
F.r.ally. Congress instructed EPA to Look
a: :ie costs of various aiternacuve
nenocs for mining waste management.
as wail as the imoac! of those
atue natuves on Inc use of natural
esour es. Theretore. £P must consicer
bo: t t te cost aria imoac! of any Subtitle
C egulations in ceciaing wriether they
are warranted. Clearly. Congress
seueved that it was important to
maintain a viable mining industry.
Therefore, any Subtitle C regulations
wnicn wowd cause widespread closures
in the inouswy would be unwarranted.
IV. Report to Congress
EPAs Report to Congress provide. -
information on sources and volumes of
waste. a.isposal and utilization practices.
po canual canger to Aunian health and
tite envimoimien! from mining practices.
anc evicence of camages. EPA received
more man 50 written commenu on the
report and neard testimony at the
hearings from more than 30 individuals.
A coniotete summary of all the
con’.ments presented at the hearings and
suc— .:ea in writing is availabie (la.
1985a see VU No. 6): (see “EPA R A
Jochet;. This section summarizes the
information containea in the Report to
C rt ess. puoüc comments received on
ne ;enor.. and EPAs response to the
comments.
4. Summer, of Report o Congress -
1. Stricture and Location of Mines -
EPA focused on segments producing
anc concentraring metallic ores.
pnos:rzace rock, and asbestos. totalling S
fewer tnan 500 active sites during 1985.
These sites. wnich are predominantly
!oca ted n sparsely populated areas
west-of the Mississippi River. vary
wuaeiy in terms of size. product value.
aria volumes of material handled. -
Several segments are concentrated
pr.niarily in one statei The iron segment
is rnaixuy concentrated in Minnesota.
lead in Missouri. copper in Arizona.
asoestos in California. and phospnate in
Florida.
2. Waste Quantities
The Report to Congress estimated that
1.3 and 2 billion metric tons per year of
nor.fueI mining waste were generated in
- 1983 and 1980. respectively. The -
accumulated waste volume since 1910
from nonfuel mining is estimated to be
aoproximately 50 billion metric tons.
The large volume of annual and
acc.uulated nonfuel mining waste -
resuit.s from the nign waste-co-oroduc:
ratios assoc:atea with r.gig. The fact
inat most of the material handled in
nLning is waste and not maruetaoie
procuc: distinguisries mining from many
otner orocess incustrues wriere waste
ma:enais ciaxe up a relatively small
por::on of :ne matertais used to produce
-------
:4498
a (mat product. Consequently, some of
the tamer mining operations nancie
more material and generate more waste
: an nany entire Incustries.
. Waste Manage:nern Practices
The report indicated that site
selection (or mines, as well as
associated beneflciauon and waste
cisoosal facilities. is the single most
iciportarn factor affecting environinernai
quality in the mining industry. Moat - —.
mine waste is disposed of in piles, and
most tailings in unpoundntenta. Mine
water is often recycled througn the null
and used for other piirooses onsite. Off.
site utilization oi mine wasre and mill
tailings is limited (i.e_ 2 to 4 oercent of
all mining waste generated). Some
waste management measures (e.g_
source separation. treatment of acids or
cyanides, and waste stabilization) now
usec at some facilities within a narrow
segment ot the mining tnausn’y couid be
more wideiy used. Other measures
aopliec to nazarcous waste in -
riorunining inoustries may not be
acoroonate. For examnie. soti cover
f:om surrounarng terrain may c.eaze
accitional reciaziauon prcoiems in ar.d
regions. . - ‘-
4. Potential Hazard Characteristics
Of the 1.3 billion men -ic tons of
nonfuei ruining waste generated by
extraction and benefimation In 1985,
aDmit 61 million metric tons (5 percent)
exn:’oit the criaracteristics of corrosiviry
and/orE? (Extraction Procecure)
toxicity. as cefined by 40 CFR 2S1.
and 261.24. respectiveiv. Another 3
million metric tons (2 percent) are —
contaminated with cyanide (greater than
10 mg/i ). Further, there are 18?. million
metric tons (14 percent) of copper feaca
dump material and 95 million men-ic
tons (7 percent) of copper mill tailings
with the potential for release of acidic
and toxic hqwd. i.e.. acid formation.
There are 443 million mecic tons (34
percent) of waste from the pnospnate
and uranium segments with
raaioacuvuy content greater than 5
picacunes per gram: a total of 93 million
metric tons (7 percent) has radioactivity
content greater than picocw-ies per
gram. Finally. asoestos mines generated
aomg 5 million metric tons (less than 1
percenil of waste with a crirysotale
content greater than 5 percent.
5. Evidence of amages
To determine wnat damage might tie
causec by mining waste. EPA cancuc:ed
grouna-water monitoring ano examinec
cocurnentec damage cases. During
snort ’erri monhior.ng studies at etgh:
sites. EPA detectec seepage from
taiiir , s imoounwnents. a coooer leacn
durn . and a uranium mine water pond.
The EP toxic metals of concern.
however, did not appear to have
ml!ratea curing the 6. tO 9-month
i ioniconng period. Other ground—water
monitoring stuames. nowever..oetected
sulfates. cyanide ,, and other
contaminants from mine runoff, tailings
pond seepage. and leaching operations,
The actual numan health and
environmental threat posed by any of -.
these reieases is largely dependent upon
site-weciflc factors, including a site’s -
proximity to human populations or
sensitive ecosystems. Sites well
removed from poaulation centers.
cnnzmg water supplies, and surface
waters are not Likely to pose nign risks.
Incicients of camage (e.g..
contamination of drinking water -
aquifers. cegradation of aquatic
ecosystems, fish kills, and related
cegracatiori of environmental quality)
lave aiso been documented in the
pr.osonate. gold. smiver, cooper. Lead, arid
uranium segments. As of Seoteinoer
:985. there were 39 exrrac:ion.
oeneficiauor i, and orocessing sites
ir.c:uaed or prooosed for inciusion on.
the Nationat Priorities Last under’ -
C CLA (Suoerfund). including five
gold/siver. three copper. three asbestos.
and two lead/zinc mines. The asbestos
Superfund sites differ from other sites in
that these wastes pose a hazard via
airoorne exposure.
6. Potential Costs of Regulation
The Reoort to Congress presented for
five metal mining segments. total
annualizea costs ranging *orn S7 million
per year (for a scenario that empnasizes
primarily basic maintenance and
monitoring for wastes that are
hazardous under the current RCRA
crtteria) to over S800 million per year
(for an unlikely scenario that
approximates a full RCRA Subtitle C
regulatory approach, emphasizing cap
and liner containment for all wastes
consiaered hazardous wider the current
c tena. pius cyanide and acid formation
wastes). About 80 percent of the total
pro;ected annualized cost at active -.
facilities can be attributed to the -
management of waste acciamuiated from
past production. Those segments with
no rzazarnous waste (e.g.. iron) would
mcii: no costs. Within a segment.
:ncrameiuaj costs wouad vary greatly
r:m facility to facility. depencing on
ciarrent requirements oi state iaws, ore
grace. geograpny. past waste
ac: rnulatmon. oerceniage of waste
is nazarcous. ann other factor,.
3 C.jarments Rece,vea on me Report to
Con;-ess and EPA s Resoonse
:. Potential Hazarc Ciaracteristics
EPA received several comments
accressing the macnituce of the wastes
generated by the mining industry, and
time amount that is hazardous. Many
agreed with the report’s conclusion that
mere are substantial volumes of waste,
but questioned EPA’, estimates of the ‘ —fl’,
amount of “hazardous” waste,.’
Many connmenters noted that they ‘ “
believed the EP (Extraction Procedure) -Z
test is Inappropriate for mining waste -
because the municipal landfill ,. - -
rnismangement scenario on which the. . - -
testis based is not relevant to mining .m
waste. They further noted that the
corrosrnty characteristic is not
aopronrtate because it noes not address
the ou.ffering capacity of the . : _. .- -
environment at certain mining sites.
Finally, several coinmenters noted that
ieacnizig operations are processes.
;auner man wastes and are thus outside
ne ourview of RCRA. . -
The Agency agrees that dump and
neao teacn piles are not wastes: rather
t ev are raw materials used in the
pronuction process. Similarly, the leach’
Liquor that is captured and processed to”
recover metal values is a product, and -
not a waste. Only the leach liquor which
escaoes from the production process —:-
and aoandoned heap and dump leach.’’
pites are wastes. Since the report -
maentiuied 50 million men-ic tons of heap
aria dump leach materials as RCRA
corrosive wastes. EPA has accordingly
reauced its estimate of mining waste
volumes wkiica meet tne current
definition of hazardous waste. The
Agency currently estimates that out of
the 61 million men-ic tons per year of ‘ -
mining waste identified as hazardous in
the Report to Congress. only 11 nuilian
men-ic tons of mining waste generated
annually are hazardous because they —
exhibit EP toxicity, and an unknown
amount of escaped leach Liquor is -.,
corrosive. EPA has also concluded that
potential problems from substantial
quantities of mining waste which have
other properties. i.e.. radioactivity.
asoestos. cyanide, or acid generation
potential will not be identified by the -
current RCRA characteristics. EPA,
therefore, believes that entirely different
criteria may more appropriately identify
the mining wastes most Likeiy to be of
conceri i.
Ev:cence of Damages
EPA received many comments on
wnetner tue Re orr no Congress
cemonsiraces that mining waste pose a
u:eat to nunian neaLth and tue
Federal Re ister I Vol. 31. No. iZ3 I Thui’zdav , (uiv 3. 1986 I Ruies ana Reouiaumons
-------
Feoeral Rc2tster / Vot. 3 “o 13 I Thurs av ruiv 3. 1986 / R :es aric Sw tio s 2 99
en iror cnt Many c:mmenters ailecec casts would be ereater than the profits. geerzited by otne incusine, c irremly -
ih t :he report ooes not aemonstrate lesoing to forcea closures. suoiic: to na:arcous waste controis.
conclusively that sucn wastes no pose d Many cornmenters aiso pointed OUt The mining inaus(rv aione generates
t ’reat They c :aimed that EPA aid not that :here are current Feceral and Stale ove one oilluon metric tons at waste per
ac qudtciv consider the site-specific re .uations wnicn ai:eacv apply to year comoarea to 50 million metric tons
nature 01 miniriu. waste management mmmc. wnic imoose costs. They noted enerateu annually cy all other
proolems. They pointeci out :nat the that EPA neecs to review Inc existing ha:arcous waste inaustries. The
environmental settings of sties vary Feceral anci State regulatory stricture average mining waste facility manages
wicielv. as do management practices. before aading to it. tnereoy imoosing aoouc three million metric tons of waste
atm that all these (actors influence risk. adcitional costs. Others did not agree. annually wnile the typical facility
Also. several cammeflters noted that me commenting that existing Federal and suopect to Suotitle C controls manages
report ails to distinguish between the State regulations are inadequate, and aoout 50 thousand metric tons of waste
thteat from past practices and the . that ada.itianal EPA regulation is - per year. . .. -
threat. if any, from current practices, necessary. • In generaL mining waste disposa.I
Based on these ooservations. many of - EPA is sensitive to the potential COStS facilities are consiaeraaiy larger than’
these cammentere urged E PA to - to the industry associatea with mining mnaustrial hazardous waste aisposal -
postpone re2uiations aenaing additional waste regulations under Suoutle C. The fac:lities: most oi the largest industrial
analysis. However. otner commenters Agency is aiso cognizant that many EPA hazaraous waste lane disposal facilities
noted that they bemieved there is programs already affect Inc mining are (tens of acres) in size. wnil, typical
sufficient evicience tnat mining waste iricustry such as the Clean Water Act . mining waste disposal facilities are
poses a threat 10 human heaitn and the wnicii. among other things. control . of acres) in size. Agency
environment arm asxed for immeaiate surface water discnarae via national stucie, indicate that mining waste
regulatory action, noting that the time Pollutant Discharge Elimination system tailings impoundments average about ;
for study was over. . (NPDES) permits. Other Federal 500 acres: the largest is over 5000 ames.
The Agency agrees that adverse aaencies. including the Bureau of Land Mining waste piles average L ames:
effects tO {flC taoiic and the Management. the Forest Service. and the the largest exceeds 500 ames.
environment from the disoosal of minir.g National Park Seriice. also exercise Hazarcous waste impounwnent& : :
waste is not lixety at sites weil-removea oversignt and imoose regulatory how.ve’. average only aoout 8 ames
from aoouiatior. centers. crimur.g wa:e cor.trots (CRA. 1986b see VII no. 3). The aria .‘iazaraous waste landfills average
suppimes. surface water, or other Fecerai waste disoosal reautrements c mv aoout 10 ames. Consequently. EPA
receptors. However. for otner sites, generally cail for orac:ices that will be ;eves inat many tracitional - -.
anaiyses of contaminant piumes - prevent unnecessary and undue - hazarcous waste controia may be
released by ieacriing ooerations and . cegradation. Federat reciamation ‘ tec nically infeasible or economically
releases of amer contaminants (e.g.. guiceiines are somewhat more detailed. mmoracucal to implement at Ir reg
acids. nietais. dusts. radioactivity) ‘ requiring approval oi a land - ‘ ‘ .waste sites because oi their size. .. . ... -
demonstrate adverse effects. Moreover.’ . management operating plan and an ““ ‘ . - . . . —
the Agency recogruzes. as evidenced by environmental assessment. Also these ‘Waste Management Practices :.. ,, -.
the miritng waste sites on the National “ agenc.es generally require compliance - • EPA estimates indicate that mast -:
Priorities List. the potential jot problems with all apolicable state and local laws hazarnou,, waste generators (about 70
from mining sites. It is apoarent that aria ordinances.
percent) snip all oi their waste off-site.
some of the prooients at Suoerfima or A numoer of states have their own however no mines snip all of their
other aoannonea sites are attrt’outa’ote - s:ar.ites ana implementing regulations waste oiT.site. In addition. nearly all -
to waste aisoosal prac::ces not currently for mining waste. Some states have mining waste is lana disposea. woile -
used by :ne mining industry. However.:: comorenensive and well-integrated less than half of all inausirial hazardous
is not clear from the analysis of damage proarams: other States have newer. - waste is land disposea. . _ ‘ -.
cases and Superiunc sites, whether ‘ partially developed progr ms .. -
c.irrent waste management practices .. 1988c see VII no. 4). lthougn there is -. - Evidence of Damage ‘ . ,,
can prevent damage from seepage or - - great variation in programs. many states • Iii generaL environmental , - . .- —
sudden releases. EPA ma concerned that - nave siting and permitting requirements. conthuons and exposure potential - —
a Large exposure potential exists at - -. and require financial assurance, ground- associated with mining waste are
some sites generating mining waste.’ water and surface water protection, and . different than those associated with
particularly the sites that are close to . - closure standards. EPA agrees that any - innusirial hazardous waste streams.
pooulation centers or in Iocadotu_ . •-‘ recuirements necessary to protect - studies suggest that mining .. ‘
cor.aucive to hign exposure and risk to - human health sad the environment - - waste streams generaily have lower ‘u ’
- human nealth and the envuonmenL .—, snould consider the existing Federal _and ,exposure and risz potential f,or ssveri-
3. Potential Costs ofRegalatan ” ,’:’’ State mining-waste programs with a ‘_ reasons. —. - ‘:... :c. ;,-
.,,view toward avoicing duplicauon of : ‘ - ‘irst. mining waste managenient : t;
- EPA received a large number tf j... - effort..- -.. • ‘ - - --
comments pertaining to the cost of . ,,,.. .. . - -:‘ ‘-- .‘ -. facilIties are generally in drier a u
complying with regulations for mining - C Mining Waste Conciusrnns - ‘ .,:. ‘ ‘climates than hazardous wuta
waste, and the effects these compliance .. Based on the available information .“: management facilities, thereby
costs would have on the mining - - ar,c puolic comments the Agency draws renucuig the leaching potentiaL Over -
mricustry. Many commnentcrs claimed — - tne following conciusions about mining 80 percent of the muting sites are
triat regulating tie mining tnauszr/ wastes. (SAL 1986 vu No. 1) locatea west of the Mississippi River, -.
woulc moose casts mucu greater than wnicn generally nas citer cilmatas.
Source and Voiume . wriei’eas uiaus lr%ai hazaroous.waute
thos* EPA estimnatec :n its aeport to
Congress. They aiso noted tnat the • ‘The waste votume generated by landfills are more eveniy distributed
mining ifldU51F . ’ wes aepressed, ann that - iu.iir.e and oeneiic:ation is consiaerably nationally. In addition. the Agency
mr many mines. increasea compiiance aruer than the voiume of waste estimates that more than sixty percent
-------
Z4500 Fevieral Re iater / VoL 51. . 1 ,5 / Thursaav. luiv 3. 1986 1 Ruaes and Re ulatiarts
of all manes have awiusi net recharge
between O-Z ancnes. and only ten
percent have net recnarge greater than
ten incises. However, about 80 percont
of the hazardous waste land disposal
facilities nave Oct reCnarge greater
man five inches. and over one-third
exceed 15 lncnes.
.Second. EPA studies indicate that
hazardous waste Land disposal
Iac:hbes aae doses to pound water..’
than auinng waste sites. Over 70
percent of hazardous waste sates have
a depth to ground water 0130 feet or
less. while aoout 7 percent of mining
sites have pound water depths
groater than 30 feet. -
-Third.. Suouule C facilities tend to be
tocated in more densely populated
areas. EPA estimates that mining
waste sites have average populations
of less than 200 within one male of the
site. wattle hazard ons waste sates
average over 2.000 peotile at the same
distance. Within five miles of the
mining waste sites, the average
population is almost 3.000. wiule
nazarnous waste sites average neariy
60.000 people.
..rnurui. Agency studier suggest that.
compared to mining waste sites.
hazaroous waste sites tend to be
located closer to dtm ng water
receptors and serve larger
popwauozs.. Minast 70 percent of the
hazardous waste sates axe located
within five miles of a drinking water
receptor serving an average
poow.ationoi over 18.000 and as many
as 400.000 peonie. Almost haLf as
many mining sates are Located within
this same nistanus. and they serve
corzsiaeraoly smaller populations
faveragang 3.000 but zangvag as hagn as
2 0 .000. 1.
• Although the Agency belIeves that
the human exposure and risk potential
appears to be lower far aa1! I!tg waste
sites than for andusmal hazardous
waste sates. many manes are located in
sensitive environmental setthags. EPA
estimates that about 50 pot t of the
mines are located in areas that have
resident populations of threatened or
endangered species or spemes of other
special concern. (often the case far
usausmal sitesj. In addition. sites
are typically Located in relatively remote
and otherwise wadisnarbed nannel
environments. -
Cost and Economic I mpacts
• EPA Delieves that many tinditional
% 4sie manacement controis aesimien
rinciuauy cor inaustr.aL hazaroous
waste management iac:Iities may ne
ec oniiCatty isiwracucal to unpiensent
at ns:r.ang s ties ann could moose
c 3staflh&ai C0515 tO Inc annustry
resulting in potential mane closures. Full retate to ilaulos an landfills. pr hibaliona
Suutiiie C controis for mining sues could “Thri tarid isoosal. minimum
irnoose as rnucn as £850 million per year tecnnoiogacal requirements. continuing
Iii compliance costs. Sucn costs could be reteases at pemmuttec facilities, and
oreaier nan profits resulting in mane retrolicuno interim status surface
c iosure s . imoounoments with liners. In modifying
• Many Feaet’al and State agencies tnese requirements. EPA may consiaer
already nave regulatory programs Ear site-specific cnaracterisucs as well is
managing mining waste. New aazardaua the oractical difficulties associated with
waste controis for muting waste could tmoteraiennng such requirements. In
be difficult to integrate with existing”’. ‘ addition. EPA has general authority
Feneral and State programs. ::.: , ;.... under RCRA section 3O04(a to modify ”
V. Application of Subtitle C to M 1 iag remaining Subtitle C requirements. suth,,-,.
Waste ‘ :i as administrative standards. financial
reauirements. and closure and capping
EPA believes that it needs nsaxzmiazn
requirements. if a wase poses different
lexioility to aevetop an appropriate - the existing standards are
pro am for mining waste wn&ca tecrinacally infeasible. However, in
aacresses the tecrinical feasibility, the modifying such requirements. section
environmental necessity, and the - 3 004(a) noes not provide EPA the same’
economic oracticaiity of mining waste aegree of flexibility to consider the —
conircia. The program mould consist of economic impact of regulation that La
a tailored risit-based approach Which found in section 3004(x).
addresses the civersary and unique
As described earlier n ra this notice.
cnaracnerisucs of mining waste - EPA believes that the decision whether
prociems. -
The c iri ’ent Subtitle C program to reguiate mining waste under Subtitle.
cesignec principaalv (or controlLing C must consider the factors Listed in
RCRA sections 8002 (f) and
raoiems .-eatea Dy incustital wastes.
Basea on information avaitatile, the . ctucirig the risks associated with
Agency Deiaeves that many conitrois mining waste. the cost of such
reoutred sinner In c nurent Sucutle C regwa non, and the effec: regulauon
program. af applied universally to mining nugrat nave on the use of natural . -
sates, would Dc either unnecessarj . resources. EPA has concluded that an
protect human health and the orator to meet that objective, it would
environment. tecanically inzeaaable. want to develop a program chat has — ‘
economically imoracucal to implement. maximum flexibility to devetop an
For instance. certain Subtitle C effective control strategy for sndividua.L
reciuirennents sucn as single and double facilities based on site.specnfic.
liner system requirements wnica provine uond.itaons. The existing Su’otUle C -
liquic management. ann ctosure and rogt i 1atoty program would probably -
capping stanaarns nave to ce changed suostanually for
izthltrauon. may be tecauucally . mimr4 waste to provide that type of
infeasible or economicaUy impractical to fiCXiQ lUtY.
imolemeni for minhlag wastes oecause of Given these general conclusions about
the quantity and nature of waste . wnat would be needed to make the
invoived. In addition. for many muting Subtitle C system appropriate for mining
sites Located in remote areas. asian . waste, there are substantial ‘ “‘ -
controis may be necessary to protect uncertainties about whetner that
human health and the environment. For program is the right mechanism to
example. liquid releases to the ground address mnung waste. First, at as unclear
water can oe mtrv,t,nv d and controLled wiseteer the legal authorities under
using cutoff walls or interceptor wells which EPA would be acting (i.e..
(i.e. controlled release) as well as sections 4004(a) arId 3004(x )) give EPA -
througn liner syscems. and alternate sufficient flexibility to craft a program
capping requirements designed to for “bazarcous” mining waste given the
aanreas site.specafic concerns such as . statutory and regulatory approach
direct human contact or wind erosion.. escablisned far other hazardous wastes.
are likely to be feasible and practicaL Second, and closely related. there are
thus providing better Long-term ‘ subsianual questions about whether the
crotecuon of human health and the Agency’s current data an mining waste
environment. ‘ ‘ mantaoemenst provice a basis for
Section 3004(x) of RC3.A does provide su siariual modifications to the existing
5ex oiiicy for regulating mining waste. Suotitle C reguiator program. With the
T:-. aec ::on gives EPA the authority tO manin waste stuov and use
mocifv certain Subtitle C rcqturements suoouementary information collection
or mining waste wnica were unoosed efforts associated with tocay S notice.
:ne Hazarcous and Solid Waste EPA has greatly exoanceG Us
kmencmanis of 19M (HSWAI wmch u.icerstanoing oi mining waste
-------
Federal Re ister / Vol 51 r’.o 129 I Thursday July 3 1986 / Ruic anu Re uiations
24501
mar.ugemrnt practices. Al the samc
lime. .iuduiional data collection arid
an.ilvsis would probably be necessary
to support specific modifications of
multiple provisions in the existing
haz.rdous waste regulations before
iho e reguldtior.s would provioe the type
of flexibility we currently believe rnigni
be necessar .. These uncertainties have
led us to the conclusion that Subtitle C
does not provide an appropriate
template for a mining waste
management program.
VI. Application of Subtitle D to Minuig
Waste
Solid waste that is not hazardous
waste is subpec: to regulation under
Subtitle D. Thereiore. minine waste.
wnicj, is included in tne RCRA
definition of solid waste is currently
covered oy Subtitle D. CPA believes that
it can design and implement a program
soec:fic to mining waste under Subtitle
D that addresses tne risks associatec
with sucn waste. The current Subtitle D
program estaoiishes criter.a which are.
for the most part. enviror.mental
performance scandaras that are used by
States to identify unacceptable solid
waste d:sposal practices or fac:lities
(See 40 CFR Part 257.) These criteria
include. among other things. standards
related to surface water aischarges.
ground-water contamination, and
endangered species. Because the
proerarn $ criteria are aimed principally
at municipal and inaustrial solid waste.
EPA. believes they do not now full’,
address minrn waste concerns, in
add;tion, many of these crterta. such as
control of disease vectors and bird
hazaras. are not appropriate for mining
waste.
The Agency is currently revising these
criteria for faczlities that may receive
hazardous household waste arid small
quantity generator hazardous waste:
these revisions will not apply to mining
waste which are generally not
codisposed with such wastes. However,
the Agency intends to further auement
the Subtitle D program by developing
appropriate stancarda and taking other
actions appropriate for mining waste
problems. EPA will focus on identifying
environmental problems and setting
priorities for applying controls at mining
sites with such potential problems as
high acid-generation potential.
radioactivity, asbestos and cyanide
wastes. EPA will also deveioo a risk-
management frameworx to deveioo
aopropriate standards as necessary to
protect human health and the
environment. EPA will consider
requirements such as: (1) A range of
closure options to accommodate
variable problems sucn as infiltration to
ground waler and exposure from fugitive
dust: (2) options to define tailored
controls. including those established by
the Clean Water Act, to address
problems from runoff to surface water
(3) options for liquid management
controls such as pretreatment of wastes
prior to disposal, controlled release, or
liner sYstems: (4) ground-water
monitoring options that accorrt.modate
site-specific variability: and (5) a range
of clean.uo options.
In developing sucn a orograrn. EPA
will use its RCRA Section 3007 authority
to collect additional information on the
nature of mining waste, mining waste
management practices, and mining
waste exposure potential. EPA believes
this authority does not limit information
coliec: on to “hazardous” waste
icencified under Subtitle C but also
autnorizes the collection of information
on any solid waste that the Agency
rcasonabiy believes may pose a hazard
wrieri impronerfy managed. (EPA may
also use this authority in preparing
enforcement actions,) Initially. EPA will
use this information to develop a
program under Subtitle D. The
information, however. may indicate the
need to reconsider Subtitle C for certain
mining wastes.
In specifying the approoriate
standards. EPA also will further analyze
e’cisting Feøeral and State authorities
and programs and determine future
plans for administering their tinning
waste programs. Additionally. EPA will
perform analyses of costs. impacts. and
benefits and will comply fully with
Executive Orders 12291 and 12498. the
Regulatory Flexibility Act, and the
Paoerworlc Reduction Act,
EPA is concerned that the lack of
Federal oversight and enforcement
authority over mining waste controls
under Subtitle D of RCR.A and
inadequaie.State resources to develop
arid implement mining waste programs
may jeopardize the effectiveness of the
program. The Adnumsiration therefore
will work with Congress to develop the
necessary authority. In the interim, EPA
will use sec:ion 7003 of RCRA and
sections 104 and 106 of CERCL to seek
relief in those cases wnere wastes from
r.in Sites pose suostantial threats or
imminent hazaras to human health aria
the er.vironment. Mining waste
prooiems can also be addressed under
RCRA Section 7002 whicri authorizes
c:tizen lawsuits for violations of Subtitle
D requirements in 40 CFR Part 257.
As EPA develops this program for
reoulating human health and -
environmental risks associated with
mining waste, the Agency may find that
the Subtitle D approach is unworkable.
pernacs because there is insufficient
authority to implement an effective
program (i.e.. the Agency does not
obtain oversight and enforcement
authority under Subtitle 0). or that
States lack aaequate resources to
develoo and implement the program. lii
sucri an event. EPA may find it
necessary to reexamine use of Subtitle C
authority with modified mining waste
standards in the future.
EPA has already made preliminary
contac:s with Congress to discuss the
best aporoach for an effective mining
waste program. The Aeency intends to
irr,media tely begin collecting addt:ional
cecnnical. economic, and other relevant
information needed for program
oeveiopment. and to complete it data
analysis by late 1987. EPA hopes to
propose revisions to the Subtitle 0
crteria that are specific to mining waste
byrnid-1988. -
VT!. EPA RCRA Docket
The EPA RCRA docket is located a .
United States Environmental
Protec:ion Agency. -
EPA RCRA Docket (Sub-oasementl.
401 M Street. SW.. —
ashingion. DC 20460.
The docket is open from 930 to 3:30
Monctay through Friday. except for
Federal holidays. The public must make
an appointment to review docket
materials. Call Mia Zinud at (202) 475—
9327 or Kate Blow at (202) 382—4575 for
apoointznents. ’
Copies of the following documents are
available for viewing only in the EPA
docket room: -
1. Buc & Associates Inc.. 1988. Lccaiion of
- Mines and Factors Affecting Exposure.
2. Charles River Associates. 1986a. Estimated
Costs to the U.S. Uranium and Phospiiate
Mining Industry for Management of
Radioactive SolId Yvastes.
3. Charles River Auocates. 1986b. Federal
Non.EPA Regulation, Adcreuing Mining
Waste Practices.
-------
45OZ Fiederul R, ister I VoL 51. No. 125 I Thursday. luty . 1988 I Rules and Regulatiofl3
. . .u4eo Rivm’ AISODUIM. 12120. S*ai .
R.guiauona of th. U.S. Miwni Induiuy.
5. Ftv nu T.eflni A.N.aata& 1221..
CgnuAdWI21 Mmatonn2 Data on CT.
Min sad Milling Solid W. t 0Ig ou1.
I. I . ige.a.Sumw’Y of Cg ””tI on he
Raoort to Can eIL
7. 1 . 12 1 1b. O,,ww of Supsthwd Mine
Sim o n.
2 . M tdiaa 2211. StadiI1 Analyuia of.
Mining weine Data. -
2. V ser. liNe. Q.ond on of Cyanide
bussing end dd-GT.dng Wut.i.. .—:
12. Vmaar. liNb. T,,—’- Stadlus-
11 .g Wan. Ragulaiary
Detssm maU ..
The public may onpy a niaximum of 50
page. at matenal from anyone
regulItasy docket it no cast. Mdltzonal -
copies st & !pege .
Dated: tune 32.2111.
Lee M. TI s .- -
Admàilsuo n in : .. ‘ - - -.
tPR Doe. 26-25111 Filed 7.4-82.2.45 .ini
nLLWMI MIS IS 5
-------
Joint EPA/NRC Guidance on the
Definition and Identification of
Commercial Mixed Low-Level
Radioactive and Hazardous Waste
-------
cm P L1c.y MEcr1vE Ni
•tu 37i.. 9 4 3 2. . 0 0 -
k LNIT T 5 1vIRoNM Nr L C Cr.c ’:
• 1
MN 2 1987
iE:1c ANDrjM
SUBJECT: Joi:it EPA/NRC Guidance on the Definition and
tdentificatLon of Ccunercial :4ixed Low—Level
Ra.d:oac::ve and aza.:dcus iaste /
,• _ ...L
F CM: Ma:c.a E. WLllia s, D:rector ,1 -.
Office of SoILd Waste ( E—562)/_ 1 ”
TO: azardous Jaste Divis cn Directors
Regior.s t—X
? ycu IP ?. announced in tne Federal Recister cr .
July 3, 19 (51 FR 2 5O4) that in crder to cotain and uaintain
authorizatiOr. to adr nister and enforce a RCBA Subtitle C
hazardous waste o:cc:a , States must a oL’, for authcrLzation
to reculate the hazardous comoonents of radioactive rnixed waste.
States which rece ved final author zation prior to July 3 must
revise their program by July 1, 1988 (or July 1, 1989 if a
statutory a end ent is re uirad) to demonstrate authority to
regulate the hazardous components of radioactive mixed waste.
States initially applying for final authorization after July 3,
1987 must incorpcrate this provision in their application for
final authorizat:on. To date, only one State (Colorado) has
been authorized for mixed waste. —
Following publication of the JuLy 3 notice and subsequent
dialogue with the nuclear Regulatory Commission (NRC) arid others
regarding the universe of affected—wastes, it became a parent
that generators of commercial low—level radioactive waste (LLW)
needed guidance to facilitate delineation of whether their LLW
contained a hazardous waste subject to RC regulation. Scordingly
NRC and EP jointly developed the attached guidance to (1) clarify
the definition of commercial mixed low—level radioactive and
hazardous waste (Mixed LLW) (2) assist generators of commercial
low—level radicactive waste (LLW) in determining if their LLW are
radioactive mixed wastes, and (3) answer anticipated questions
about mixed low—level wastes.
You should fee]. free to consult with the contacts identified
in the gu .dance regarding specific technical considerationS or
your may contact Betty Shac c1eford, 05W Mixed Waste Coordinator
r. (FTS) 475—9565.
.— ,.
r
-------
- _.: .• __
4 2 .00-2
TO ALL NRC LICZNSEES
SUBJECT: GUIDANCE ON THE OE INITON AND IDENTIFICATION OF COMMERCIAL MIXED
LOW-LE’/EL RADIOACTIVE ANO HAZAP.COUS WASTE AND ANSWERS TO ANTICIPATED
QUESTIONS
Under the Resource Conservation and Recovery Act (P.CRA), the U.S. Envlrcr.mental
Prctect lOfl Agency (EPA) has jurisdiction over the disposal of solid wastes with
the exception of source, byproducts and special nuclear material, which are
regulated by the U.S. Nuclear Regulatory Commission (NRC) under the Atomic
Energy Act (AE.A). Low—Level Radioactive Wastes (LLW) contain source,
byprccuCt , or special nuclear materials, but they may also contain chemical
constituents which are hazardous under EPA regulations in 40 CFR Part 261.
Such wastes are commonly referred to as Mixed Low—Level Radioactive and
4azardous Waste (Mixed LLW).
NRC regulations exist to control the byproduct, source, and special nuclear
material components of the Mixed LLW; EPA has the authority and continues
to develop regulations to control the hazarcous component of the Mixed LLW.
Thus, all of the individual constituents of Mixed LLW are subject to either
NRC or EPA regulations. However, when the compcnents are combined to become
Mixed LLW, neither agency has exclusive jurisdiction under current Federal
law. This had led to a situation of dual regulation where both agencies,
NRC and EPA, regulate the same waste.
The enclosed document, uGuidance or. the Definition and tdentificaticr. of
Commercial Mixed Low—Level Radioactive and Hazardous Waste,” was developed
jointly by the NRC and EPA to aid conur .ercial LLW generators in assessing
whether they are currently generating Mixed LLW. This guidance Is based on NRC
and EPA regulations in effect cr December 1, 1986. In addition to the
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-: 2 .00—2
2
definition and the methodology for identifying Mixes LLW, whicri we hereby
endorse, the staff has prepared answers to anticipated questions from
generators which are also included.
- Sincerely,
Jorm G. Davis, Director
Orrice or Nuclear Material
Safety a d Safeguards
U. S. Nuclear Regulatory Ccrnnission
/ __
./J . Wirist n Porter
Assistant Acministrator
Office of Solid Waste
and E. nergency Response
U.S. Environmental
Protection Agency
Enclosures:
As Stated
-------
1. is the waste ii.wi
Step 2. Ar Listed Hazardous Wastes
Contained In the LIII?
[ he waste Is Mixed 11W.
Flcjure I.
Ho
identification of Mixed 11W.
• It is not Mixed 1 1W 1 hut It
may be hazardous Waste or
another Radioactive Waste.
flo tlnn-AEA Materia’s cause
the Waste to exhibit any of
the hazardous Waste CharacteristIcs?
-r
The Waste Is not Mixed 11W.
to
l- -
Step 3.
No
Yes
Yes
—
0
I
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:: :c’ c cr’:E o
f3 .00-2
I
GU:CANC CN rdE oE :NtT:cN 10 ENT: :c r:cN
CF c: ME c:AL it:c •j LOW-LEVEL R4AO CACTZVE N0 HAz.ARoaus WASTE
(37/01/OS)
Oeffni t on
Mi.ced Low—Level Radioac: ve arid Hazardous Waste (Mixed LLW) is defined as waste
t a: sa: sf es the definition of low—Teve racioac:ve waste (LLW) in the Low—
Level Radioactive Waste Policy Amendme’,ts Ac: of 1 3 (LL WPAA) and contains
hazardous waste that either (1) is listed as a hazar ous waste in Subpart 0 of
40 CF Par: 251 or (2) causes the LLW to exr.ioi: any of the hazardous waste
charac:aris: cs ida i:ified in Sucoar: C or C Cr. 0 ar: 25j,.
Ide’it f cat cn
The ociicy :rovided in t is guidance s cavelcoec for c:ome—zal LLW jointly by
t e U.S. Nuciear Recula::ry C miss;on (NRC) aric :. e U.S. vironmenta l
Prczec:on Ace’icy (EPA). LLW tna: c:n:a ns nazar::us as:as e ined under the.
Resource Co.iseria: cn aric Recovery Ac: (RCR.A) is Mixe LLW. Under current
Fece’al law, sucn waste is sub ec: to regulation by NRC under the Atomic Energy
Ac: (AEA), as amencec, and by EPA under t e AEA anc RCRA, as amended. In the
aosenca of le islaticn to the contrary, nanacemerit a disoosal of this waste
must be conducted in compliance with NRC anc EPA or equivalent state
regulations.
This guidance presents a methodology (Figure 1) that may be used by generators
of commercial LLW to identify Mixed LLW.. toi:iemen:a:icn of the methodology
shoula tdar.: ry Mixed LLW and a d generators in assessing wnet er they are
currently generating Mixec LLW. Generators are caut cned, however, that
application cf the methodology does not arrec: the need to comply with
aoplicaoie NRC and EPA regulations. 2ecause EPA’s regulations for hazardous
waste are currently c anging, generators should use aoolicable regulations
that are in effect at the time of Imolementation of t e methodology. This
guidance has been prepared based on NRC and EPA regulations In effect on
Oecernoer 1, 1986.
U
Aoplication of this methocoiogy to Icent fy Mixed LL’ will reveal the
complexities of the definition of Mixed LLW. If ge’Terators have specific
questions about whether LLW Is Mixed LLW, they should rcmotly contact the
agencies by wri:tng to the persons l 4 stec below.
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i.—. _•, ,.————..
9432 •002
2
For ques: crts acout whetter the For questions accut whether the
waste is low—level racioac:ive waste is hazardous waste,
waste, c ntaC contaCt:
Or. Sher Bahadur Mr. Alan Corson
Division of Waste Management Deputy Director
Mail Stoo 623—SS Characterization and
U. S. Nuclear Regulatory Commission Assessment Division
Was ir.g::n, DC 2DE Mail Code WHE628
U. S. Environmental
Protection Agency
401 M Street, S.W.
Washington, DC 20460
Me thcdo logy
St 1. ! e’i:if’ LLW
Stec 1 in the me: cc:lcgy r uir!S tia: the ge’ie at:r cetarnine whether the
waste is LLW as defined in the LL WPM. This Ac: defines LLW as radioactive
material t a: (A) is not hignlevel radioactive waste, spent nuclear fuel, or
byprOduct material as defined In section lle.(2)of tne AE (I.e., uranium or
thorium mill tailings) and (B) the NRC classifies as LLW consistent with
existing law and in ac:ordance with (A). If the generator determines that tL
waste Is LLW, the generator should proceed to s:ao 2. If the determination Is
negative, then the waste cannot be Mixed LLW because it is not LLW. However,
the waste may be ancther radioactive or hazardous waste regulated under AEA,
RC A, or bo:i statutes.
Stec 2. t 2flt fY Listed Hazardous Waste
In step 2, the generator determines whether the LLW contains any hazardous
wastes listed in Suboart 0 of 40 CF Part 251. Subpart 0 of Part 261 Is
reproduced in Appendix I of this guidance. LLW is Mixed LLW if It contains any
hazardous wastes soecifically listed In Subpart 0 of 40 CFR Part 261. LIsted
hazardous wastes include hazardous waste streams from scectfic and non—specific
sources listed In 40 CF Parts 261.31 and 261.32 and discarded commercial
chemical products listed In 40 CFR Par: 261.33. The generator Is responsible
for determining whether LLW contains listed hazardous wastes. The
determination snould be based on knowledge of the process that generates the
waste. For examole, if a process produces LLW that contains spent solvents
that are scecifically listed In the tables of Subpart 0 of Part 261, the -—
generator should suspect that the waste is Mixed LLW.
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9 4 : 2 • 00
2
_material , and (2) tie tailings ar astes pr:c cec by the extraction or
c:icentra:icn of uranium or thorium fr: i any ore processed primarily for
its source material contCnt.
Source, special nuclear, and byproduct materials, however, may be mixed with
other radioactive or non—radioactive materials that are flat source, special
nuclear, or byprcduct materials. For example, tritlum may be contained In
toluene, a nonhalcgenated arcmatic solve’it. Consistent with the definition of
byproduct material , t:ie trrttum may be considered a byproduct material, while
t e toluene that c:ntains the tritium oulø no: be byprcduct material.
Mixtures of toluene and tritium could satisfy the definition of Mixed LLW
because they contain listed hazardous waste (spent toluene) and tritium that
may qualify as LLW if it has been produced by ac: vities regulated by NRC under
the AEA.
2. What are some examples of Mixed LLW?
A prehlTliflary survey pe fcr ec for tr.e N C iceri: cc t o potential types of
Mixed LLW:
o LLW containing organic liquids, such as scintillation liquids and
vials; organic lab liquids; sludges; arid cleaning,
degreasing, arid miscellaneous solvents.
° LLW containing heavy metals, such as discarded lead shielding,
discarded lined containers, and lead oxide dross containing
uranum oxide; light water reactor (LWR) process wastes
containing chremate anc L’ R decontamination resins containing
chromium; and mercurj amalgam in trash.
The preliminarj survey concluded that potential Mixed LLW comprises a small
percentage of all LLW. For example, LLW containing organic liquids accounted
for aparoximataly 2.3? by volume of LLW reoorted in the preliminary survey
(Bowerman, et al. , 1985).
An earlier survey identified a more diverse universe of potential Mixed LLW
including wastes that contained aldehydes, aliphatic halogenated hydrocarbons,
alkanes, alkenes, amino acids, aromatic hydrocarbons, chelating agents, esters,
ethers, ketones, nitrosamines, nucleotides, pesticides, phenolic compounds,
purines, resins, steroids, and vitamins (General Research Corporation, 1980).
NRC also anticipates that additional LLW may be identified as Mixed LLW in the
future, as generators implement the definition of Mixed LLW and as EPA revises
the definition of hazardous waste. . -
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432 .
3
3. C uld sc e ‘ c rC la::ry c ncer&’ . as:as :e C2. S1CC 2C Mixed LLW?
A determination that radioactive wastes are below regulatory concern (BRC) for
radioactivity may affect how tne wastes are managed or ciscarded, but It does
not affect tne legal status of the wastes. Soecif cally, their status with
respect to the definition of Mixed LLW does not c ange. BRC waste is still LLW
because it satisfies the definition of LLW in the LLR PAA and is within the
NRC’s jurisdcticnal authority under the AEA.
When radioac: ve waste c:ntains suffic ei: y lcw c:. cei:rations or quantities
of radionuclides, NRC may find t iat t ey do no: need to be managed or disposed
of as radioactive wastes. For NRC to make suc a find ng, management and
disposal of the waste must not pose an undue radiological risk to the public
and the environment. However, NRC’s deter iir.a:icn tia: the radioactive content
of the wastes is below NRC regulatory c:nce”.i does not relieve licensees from
c:mcliance wi:n aooltcaole rules cf other a enctes gcve ning non—radiological
hazarcs (e.g., regula:ions of EPA or t e C ar: en: f iransoortation).
The e :re, s: e C wastes may st l1 e c:ns ce—e Mixed LLW if they contain
ha:ar :us wastes t a: nave been lis:ac in Su::ar: 0 of 43 CFR Part 251 or that
cause tne LLW to exnthtt any or tne hazar ous cnarac:eris: cs described In
Suopart C of 0 C R Part 251. 3RC Mixed LLW may be managed without regard to
i-ts radioactivity (but it must still be managed as a nazardous waste In
comoliance with EPA’s regulations for hazar cus waste generation, storage,
transportation, treatment, and dfs osal (cf. 40 CF Parts 252 through 256)).
4. Lf t use c e iicals in my process that are iden:fied by EPA as hazardous
constituents, snould I assume that my LLW is Mixed LLW?
No. Low—level radioactive waste that contains hazar::us constituents nay not
necessarily be Mixed LLW. As defined above, Mixed LL’ is LLW that contains a
known hazardous waste (i.e., a listed hazar cus waste) or that exhibits one or
more of the hazardous characteristics because it contains non—AEA materials.
For wastes that are not listed in Suooart 0 of 40 CF. Part 261, testing Is not
necessarily required to “determine” whetner the LLW exhibits any of the
hazardous cnaracteristics. A generator may be acle to determine whethet! the
LLW is Mixed LLW based on knowledge of the waste cnarac:aristlcs or the process
that generates the LLW.
Furthermore, If the generator normally segregates LLW from hazardous and other
types of wastes, tnere is no need to assume tnat hazardous wastes may have been
inadvertently mixed with LLW or to inspect eacn container or receptacle to
ensure that inadvertent mixing has not oc:urred. Although the generator Is
subject to RC A inspections and m s : follow the manifest, pre—transport, and
other requirements of 40 CFR Part 252, the çenera:or is not required to
demcns:rata tnat every LLW c:ntaine— does nc: contain hazardous waste.
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;a .:
9432 OO.2
4
5. What are E°A anc NRC c rreri:!y ccing to a dres5 t e Mixec LLW issue, and
wnat snould generators do in tne interim before a regulatory program for Mixed
LLW is eszaolished?
An incentive exists for generators to minimize the generation of Mixed LLW
because Mixed LLW must currently be managed and disposed of in compliance with
the regulatorj controls of both EPA and NRC. These dual regulatory controls
complicate management and disposal of the waste. NRC and EPA are presently
wor lng together to develop guidance for generators and disoosal site operators
on the management, treat 1ent, anc disposal of Mixed LLW. In the interim,
ge eraors are eic:uraged to minimize tne generation of Mixed LLW through
management practices such as waste segregation and materials trac tng.
Generators and waste handlers are also encouraged to consider treatment
teciriiques to reduce the amcunt and hazards of Mixed LLW requiring licensed
land cisoosal. Kemof et al (1985) prepared a preliminary evaluation of current
pr!c:i_9S anc pctei: al manageme’lt ootions for Mixed LLW. Current disoosal
s:e ccea:ors must deveoo ar.c operate facilities to disoose of Mixed LLW In
c: oflance w: cc: NRC anc E?A requirements or cease disposing cf Mixed LLW.
L zeiseeS s oul rec:g ize t a: all of these activities must be performed In
c: :hance w t a:;iicaoie NRC requirements in 10 CF Parts 20, 30, 40, 50, 61,
a c7O, anc acolica:ie EPA re uirement5 in 40 CF Parts 124, and 260 through
270, or applic cie State requirements.
6. What shculd I do if I believe that the RC. A regulations are inconsistent
with the AEA regulations?
Sec: on 1006 of RC A states that, “Nothing in this Ac: shall be construed t
apoly t3 (or to au: orize any state, interstate, or local authority to regulate
any activity or suostance wnicn is subject to . . . the Atomic Energy Act of
1954 ( 2 U. S. C. 2011 and following) except to the extent that such
aooiicatiCn (Cr regulation) Is not inconsistent with the requirements of such
[ Ac:].” This provision allows the modification of the RCRA reauirements when
they are found to be Inconsistent with the AEA requirements. “Inconsistent”
induces situations where satisfying boti sets of regulations (RCRA and AEA
regulations) would increase the radiation hazard, would be tec inically
infeasible, or would violate national security interests. Variances from the
RCR requirements may be granted to generators, transporters, and facilities.
t at treat, store, or dispose of Mixed LLW.
NRC licensees may petition for variances frcm RCRA requirements when they
believe that application of one or more of these r.equirements would be
inconsistent with the AEA. NRC licensees should first discuss the
Inconsistency with NRC prior to preparing the petition. NRC’s review
•will ensure that the licensees’ interpretations of the AEA requirements
are correct and that the reasons for the variance petition are technically -
sound.
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sIr..
Qi 9 .. )
‘I — C.• — • U I.# .
c
7 How can c::a eprese’ i:.1 /e samoles of .ete cenecus trasn included in
LLW - perfcr i the nazar ous c arac:er1St CS tests?
Serore disc sSiflg the collecticn or represantat ’e samoles or waste, generators
are reminded that they are nc: requf red to test all LLW to determine If the
waste contains hazardous wastes that cause the LLW to exhibit the hazardous
waste cnarac:eristlCs. Suci comprenensive testing of all LLW would likely
violate the principle of keeping radiological exposures as low as Is reasonably
achievaole. Generators snould select testing as a basis for determining.
wnet er the LLW exnibits any of the hazardous waste characteristics If they
cannot make t e de:erminatlcn based on t. eir knowledge of the process that
generates the LLW.
Representative samoles of waste snould be collected for testing In accordance
wit E?A’s regulations in 40 C Par: 251.2Q(c), which state that waste samples
collected usng aopiicacle methods soec fied in Appendix I of Part 261 will be
c:nsicared as reoresan: :ive satncies for ha:ardous characteristics testing.
This aocendix has been includec in its e :irety in Appendix II of this
gu cance. The sa :iing :ac nicues cesc ced in Acoe cix I of Par: 261 apply to
ex:rweiy viscous liquids, fly asniika iiate iai, containerized liquid wastes,
and liqu d wastes in pits, pcr.cs. lagccns 1 and siniilar reservoirs. In the
aosence of guidance acout samoling heterogeneouS wastes, generators should use
aopr:pria:a portions of the sampling methods describeo in Appendix I of Part
261 in comoination wit other methcds to collect, to the maximum extant
pracdcacle, representative samples of the waste to be tested.
Re e re ices
Bcwerman, B. S., Ke iof, C. R., Mac enzie, 0. R., Sisk nd, B. and P. L.
Piciulo, 198E, “An Analysis of Low—Level Wastes: Review of Hazardous
Waste Regulations and Icentiflcation of Radioactive Mixed Wastes,”
NURE /C. — 06 , U. S. Nuclear Regulatory Ccmmissicn.
General Research Corporation, 1q30, “Study of Chemical Toxicity of Low—Level
Wastes,” NURE /C —1793, U. S. Nuclear Regulatory Commission.
Kempf, C. R., MacKenzie, 0. R., and 8. S. Bowerman, 1936, “Management o?
Radioactive Mixed Wastes in Commercial Low—Level Wastes,” NUREG/CR4450,
U. S. Nuclear Regulatory Commission.
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Land Disposal Restrictions
-------
UNITED STATES ENVIRONMENTAL PRCTEC7ION AGZNC’r
/ WASHINGTON 0 C. 20460
7 , , 0F ’CE0
u I SOLIO WASTE At Q 6ME QIpicr RISPOpi
MEMORANDUM
SU8JECT: Land Oisposal Restrictions
FROM: Fie Jr., or
TO: Suoerfund Branch Chiefs, Regions t-X
OHM Coordlnator , Regions I-X
The Office of Emergency and Remedial Response has prepared the attached
summary of the land disposal restrictions mandated under the 1984 amen iients
to the Resourca Conservation and Recovery Ac: (RCRA). This summary is still
be ng reviewed within Headauarters, but I am sending the Regions an advance
coDy of tfle document because this information is critical to the ongoing opera-
tions of the Su erfun program, especially for removal actions. In particular,
I want to bring your attention to page 15 of the Summary. EPA expects that
the Federal Register notice discussed on that page will be published next week,.
and it is lmoortant that the Regions review the notice and provide canrients tQ
Headquarters. We will be contacting the Regions next week to notify them of
the exact publication date.
The final , signed summary of the land disposal restrictions should be
sent to the Regions shortly. I do not expect it to contain major changes from
this advance draft.
Attachment
cc: Clam Rastatter
Russ Wyer
John Riley
Mark Greenwood
Lloyd Guercf
Elaine Stanley
John Cunningham
Frank Russo
Jean Schumann
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, 1 tD s
4 UNITED S7ATES ENVIRONMENTAL PROTECTION AGENCY
____ WASHINGTON.OC 20460
4 ’ 4e. ,.Oi”
OFPICE QP
SOLIO WASTE ANO EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Land Disposal Restrictions /
FROM: Henry L. Longest II, Director / I
Office of Emergency and Remedial e ponse
Gene Lucero, Director d A Qr rO
Office of Waste Programs £‘nforce ent
TO: Waste Management Division Directors, Regions I-X
Environmental Services Division Directors, Regions 1, V I, and V I I
As you know, in Novemoer 1986, EPA promulgated regulations restricting the
land disposal of certain solvent and dioxin wastes pursuant to the 1984 amend-
ments of the Resource Conservation and Recovery Act (RCRA). The effective date
of these regulations for Superfund response action wastes, however, was extended
until November 1988. On July 8, 1987, EPA published the second set of land
disposal restriction (bR) regulations, which addresses the “California list”
wastes. The California list wastes include liquid and non—liquid wastes
containing halogenated organic compounds (JIOCs), and liquid wastes containing
polychiorinated biphenyls (PCBs), corrosives, free cyanides. and certain metals.
As of July 8, 1987, land disoosal prohibitions took effect for Suoerfund for the
following California list wastes: dilute HOC wastewaters, PCBs, corrosives, free
cyanides and the metals. An extension of the effective date has been granted for
the remaining HOC wastes.
The purpose of this memorandum is to summarize the LDR provisions that
took effect on that date, and to inform you of the issues that are still being
resolved In Headquarters regarding Superfund implementation of LDR requirements.
More explicit guidance on Superfund compliance with the solvent, dioxin,
California list, and other LDR provisions is forthcoming. Separate guidance will
also be provided on LDR issues encountered in PRP negotiations. Until that time,
the Regions should contact Headquarters if questions arise regarding compliance
with the restrictions on land disposal of the California list wastes. In addition,
this memorandum requests that the Regions review and comment on a Notice of Data
Availability and Request for Comment which will be published in the Federal
Register In the near future, and will address free cyanide and metal wastes.
Due to the significant impact LOR will have on the Superfund program, the Regions
should give high priority to this review.
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ATTACHMENT A
SUMMARY OF MAJOR LOR PROVISIONS
AND
CALIFORNIA LIST PROHIBITIONS
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-2-
Section 1 of Attachment A summarizes the major LDR provisions and
indicates issues that must still be resolved regarding Superfund implementa-
tion of those provisions. Section II of Attachment A describes the specific
prohibitiOnS on the California list wastes. Attachment B is a copy of the
November 1986 Federal Register that promulgates the overall LDR framework and
the solvent and dioxin land disposal restrictions. Attachment C Is a copy of
a Federal Register correction notice published tn June 1987, which modifies the
1986 rule. Attachment D is a copy of the July 1987 CalIfornia list regulations.
Questions regarding removal program compliance with the land disposal
restrictions should be directed to Jean Schumann of the Emergency Response
Division (FTS 382-4671). Questions regarding remedial program compliance
should be directed to John Cunningham of the Hazardous Site Control Division
(FTS 382-2446), and enforcement-related questions should be directed to
Frank Russo of the CERCLA Enforcement Division (FTS 382—4838).
Attachments: A - Summary of Major LOR Provisions and California List
Prohibitions
B - November 7, 1986 Federal Register
(LOR Framework and Solvent/Dioxin Regulations)
C — June 4, 1987 Federal Register
(Correction Notice)
0 - July 8, 1987 Federal Register
(California List ReguThtions)
cc: (without Attachments B, C, and D):
Marcia Williams
Superfund Branch Chiefs, Regions t-X
OHM Coordinators, Regions I.-X
Clem Rastatter
Russ Wyer
Timothy Fields
Mark Greenwood
Lloyd Guercl
Elaine Stanley
Sylvia Lowrance
Joe Carra
Arthur Weissman
Phil Jalbert
Steve Silverman
Gary Jonesi
John Cunningham
Frank Russo
Jean Schumann
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Attachment A
CONTENTS
Page
I. SUMMARY OF MAJOR LOR PROVESEONS
A. Introduction 1
3. Applicability I
C. Schedule for Land Disposal Restrictions 2
0. Exemptions from LOR Schedule 2
E. Treatment Standards 5
F. Single vs. Multiple Constituent LDR Wastes 5
G. Single Constituent Addressed Under Multiple 7
Rul emaki ngs
H. Alternatives to Meeting the Treatment 7
Standard
1. Treatability Variance
ii. Equivale’it Treatment Method Petition
iii. Case—by-Case Extension
iv. No Migration Petition
v. Delist the Waste
I. Storage of Restricted Wastes 9
J. Exemption for Treatment in a Surface 11
tmpoundment
K. Dilution and Mixing Prohibited 11
L. Disposal of Lab Packs Containing Restricted 11
Wastes
M. Testing and Recordkeeping 11
II. CALIFORNIA LIST PROHIBITIONS
A. Overview 13
B. Free Cyanides and Metals 14
C. Corrosives 16
0. Polychlorinated Biphenyls (PCBs) 16
• E. Halogenated Organic Compounds (HOCs) 17
F. Summary of California List Prohibition Levels 18
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l. SUMMARY OF MAJOR LDR PROVISIONS
A. Introduction
The Hazardous and Solid Waste Amendments to the Resource Conservation
and Recovery Act (RCRA) were enacted on November 8, 1984. Among other
things, these amendments require EPA to evaluate all hazardous wastes
according to a strict schedule to determine whether land disposal of these
wastes is protective of human health and the environment. For wastes that
are restricted from land disposal , the amendments require EPA to set levels
or methods of treatment which substantially diminish a waste’s toxicity or
reduce the likelihood that a waste’s hazardous constituents will migrate.
Beyond specified dates, restricted wastes which do not meet these treatment
standards are prohibited from land disposal (unless the waste Is subject to
an exemption or variance, discussed later in this document). In accordance
with the amendments, if EPA fails to set treatment standards for a particular
waste by the scheduled deadline, that waste is automatically prohibited from
land disposal.
On Novemoer 7, 1986, EPA promulgated the first set of land disposal
restriction (LDR) re’ulations. This rule es:aolishes the framework for
implementing the LOR program. Section I of this document summarizes the
major provisions of the RCRA amendments and the Novemoer 1986 regulations.
8. Applicability
The land disposal regulations apply to hazardous wastes placed in land
disposal units. “Land disposal” is defined as placement In or on the land
and includes, but is not limited to: placement in a landfill, surface
impoundment, was:e pile, land treatment facility, salt dome or salt bed
formation, underground cave or mine. Also included is placement in a
concrete vault or bunker intended for disposal purposes (40 CFR Section
268.2(a)). For the purposes of this definition, open detonation and open
burning are not considered “land disposal,’ but rather, are methods of
thermal treatment. At a later date, prohibitions will also be imposed on
the disposal of hazardous wastes in injection wells.
LOR applies only to hazardous wastes placed in land disposal units after
the effective dates of the prohibitions. Wastes placed in the land prfor to
the effective dates of the prohibitions (and not removed) are not covered by
the regulations. For example, if wastes placed in the land prior to the
effective date are later treated in—situ, they are not subject to the require-
ments of LOR. However, if wastes are removed from land disposal after the
effective date, the wastes must meet the applicable treatment standards
before subsequent new placement in the land.
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-2-
To date, Headquarters has determined that the following scenarios
do not constitute new “placement,’ and therefore, that the land di po l
restrictions are not applicable:
o Waste is consolidated within a unit or area of contamination.
° Waste is capped in place, including grading prior to capping.
o Waste is treated in-situ.
Other scenarios have been identified that do constitute placement, and
therefore, trigger the land disposal restrictions:
° Waste from different units or areas of contamination is
consolidated into one unit or area of contamination.
o Waste is treated outside a unit or area of contamination, and
redeposited into the same unit or area of contamination.
(Note that in many CCS2S tnere are no defined “units” at Superfund sites,
but rather, areas of contamination which could be considered units under
RCRA.) Future guidance will provide more detail on the definition of
placement.
The land disposal prohibitions apply to wastes placed in the land as
well as to waste treatment residues placed in trie land. Therefore, if the
recycling or other treatment of a restricted waste includes land disposal
of treatment residues, these residuals must meet applicable treatment
standards.
Wastes which are placed into storage before the prohibition effective
date are not subject to the LOR restrictions on storage. However, wastes
taken Out of storage after the effective date must meet applicable treat-
ment standards prior to land disposal.
I The land disposal restrictions apply to both interim status and
permitted facilities.
C. Schedule for Land Disposal Restrictions
The effective dates for the land disposal restrictions under the 1984
RCRA amendments are set forth in Table 1 (page 3). The listed wastes are
banned from land disposal on the effective dates unless the waste stream
or residue from treatment of the waste stream meets specified treatment
standards. (Exemptions from this schedule are discussed In Section I.D,
and alternatives to meeting treatment standards are explained in Section
I.H.)
0. Exemptions from LOR Schedule
The 1984 RC A amendments and the LDR regulations provide exemptions
and variances from the LOR schedule as set forth in Table 2 (page 4).
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—3—
TABU 1
LDR Schedule
WASTE BAN EFFECTIVE DATE
Spent solvent wastes November 8, 1986
(FOOL, F002, F003, F004, F005)
Dioxin—containing wastes November 8, 1986
(F020, F021, F022, F023, F026,
F027, F028)
California list wastes July 8, 1987
First third of all ranked and August 8, 1988
listed RCRA hazardous wastes
Second third of all ranked and June 8, 1989
listed RCRA hazardous wastes
All remaining ranked and listed May 8, 1990
RCRA hazardous waste and all
RCRA characteristic hazardous
wastes
Any RCRA hazardous waste listed or Within six months of
identified under RCRA 3001 after listing or
November 8, 1984 identification
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TABLE 2
Exemptions from LDR Schedule
WASTE EXEMPTION/VARIANCE
All soil and debris wastes from Statutory two—year exemp—
from CERCLA resporise and RCRA tion from effective date
corrective actions until November 8, 1988
All RCRA-liszed dioxin wastes Regulatory two—year
national variance until
November 8, 1988
All RCRA-listed solvent wastes from Regulatory two—year
CERCLA response and RCRA corrective national variance until
actions (non—soil and debris) November 8, 1988
Small-quantity generators (100 kg - Regulatory two—year
1000 kg per month) of RC A solvent national variance until
wastes November 8, 1988
Solvent-water mixtures, solvent— Regulatory two—year
containing sludges, or solvent- national variance until
contaminated soil or solids November 8, 1988
(non—CERCLA or RCRA corrective
action) containing less than
1 percent total F0O1—F005
solvent constituents as initially
generated
Liquid and non—liquid hazardous Regulatory two—year
wastes containing HOCs in total national variance until
concentration greater than or July 8, 1989
equal to 1,000 mg/i, or 1,000
mg/kg, respectively (except for
dilute HOC wastewaters, defined
in Section II)
* Soil and debris have been defined to include soil , dirt, and rock as well
as natural and manufactured materials, such as contaminated wood, stumps,
clothing, equipment, building materials, storage containers, and liners.
The definition does not Include bulk wastes that are not contaminated soil
or debris. Only soil and debris resulting from CERCLA 104 and 106 (enforce-
ment) actions are included in this exemption. State—ordered, State—funded,
or private-party funded response wastes are not entitled to this exemption
if CERCLA section 104 or 106 authority is not utilized, even if section 107
is used for purposes of invoking liability.
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E. Treatment Standards
LOR prohibits land disposal of restricted wastes after the effective
date unless specified treatment standards are met. (Alternatives to
meeting the treatment standards are discussed in Section I.H.) Treatment
standards may be expressed as: 1) concentration—based performance standards
(concentrations in the total waste or in a waste extract), or 2) specified
methods of treatment. Treatment standards are generally based on the best
demonstrated available technology (BOAT) for treatment of that waste.
If the treatment standard is expressed as a waste concentration or a
concentration in a waste extract, any treatment technology that meets this
performance standard may be used to treat the waste prior to land disposal.
If the standard is expressed as a specific technology, that technology must
generally be used to treat the waste prior to land disposal.
In the November 7, 1986 LDR regulations, treatment standards were
established for the RCRA-listed solvent and dioxin wastes (see Table 3
on the next page). These treatment standards are expressed as concentra-
tions in a waste extract (40 CFR Section 268.41). The July 8, 1987 rule
estaolishes treatment standards for the California list PCB and HOC wastes
(except for dilute HOC wastewaters). These treatment standards, discussed
in more detail in Section II of this document, are expressed as specific
technologies (e.g., thermal treatment). Treatment standards for the remain-
ing wastes will be evaluated according to the schedule set forth in Table 1.
Treatment standards are to be used only for disposal purposes, not
as cleanup standards. In fact, sites may be cleaned to levels lower than
the treatment standards.
F. Single vs. Multiple Constituent LDR Wastes
Single constituent LDR wastes must meet the treatment standard
specified for that waste. For example, a wastewater containing 6 percent
solvents by weight, with chlorobenzene the only LDR constituent at a
concentration of 1.63 milligrams per liter (mg/i), must be treated with
atechnology capable of achieving a chlorobenzene concentration of less
than 0.15 mg/1, the chlorobenzene treatment standard (see Table 3).
Multiple constituent LDR wastes must meet the treatment standards
for each restricted waste. For example, assume a spent solvent waste
contained the following:
LOR Constituent Concentration Treatment Standard
(1) acetone 0.75 mg/i 0.59 mg/i
(2) methylene chloride 1.20 mg/i 0.96 mg/i
(3) trichioroethylene (TCE) 0.87 mg/I 0.091 mg/i
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Table 3
Solvent and Dioxin Treatment Standards
FOOl - FOOS Extract Concentrations (mg/i )
Solvent
Constituents Wastewater Other
Acetone 0.05 0.59
n—Butyl alcohol 5.0 5.0
Carbon disulfide 1.05 4.81
Carbon tetrach oride 0.05 0.96
Chlorober lZene 0.15 0.05
Cresols (and cresylic acid) 2.82 0.75
CyclohexanOfle 0.125 0.75
1,2 -OichlorobeflZefle 0.65 0.125
Ethyl acetate 0.05 0.75
Ethyl benzene 0.05 0.053
Ethyl ether 0.05 0.75
IsobutanOl 5.0 5.0
Methanol 0.25 0.75
Methylene chloride 0.20 0.96
Mechylene chloride (from
pharmaceutical industry) 12.7 0.96
Methyl ethyl ketone 0.05 0.75
Methyl isobutyl ketone 0.05 0.33
Nitrobenzerte 0.66 0.125
Pyridine 1.12 0.33
Tetrachloroethylefle 0.079 0.05
Toluene 1.12 0.33
1,1,1-Trichloroethafle 1.05 0.41
1,1 ,2-Trichl oro—1,2,2—
trifluoroethane 1.05 0.96
Trichloroethylefle 0.062 0.091
Trichlorofluoromethafle 0.05 0.96
Xylene 0.05 0.15
Extract
LDR Dioxins Concentration (ppfl1
KexachlorOdibeflZO—P—diOxiflS < 1.0
HexachlorOdibeflZofUraflS < 1.0
PentachIorod lbenz o-p—diOXinS < 1.0
Pentach lorOdibeflZofUrafls < 1.0
Tetrachlorodibenzo-p-dfOXlflS < 1.0
TetrachlorOdibeflZOfUraflS < 1.0
Extract
LDR ChloroohenolS Concentration (pDm ]
24,5 -TrichlorophenOl < 0.05
2,4,6 -TrichlOrOphenOl < 0.05
2,3,4,6 _TetrachloroPheflOl < 0.10
Pe tachloropheflOl < 0.01
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The waste must then be treated using a treatment technology capable of
meeting the treatment standards for acetone, methylene chloride, and TCE.
Similarly, if a hazardous waste contained proh ibite’i levels of HOCs and
a California list metal, the waste would be prohibited from land disposal
until it was in compliance with LOR requirements for both HOCs and the
restricted metal.
Note, however, that for multiple constituent wastes the prohibition
effective date for each individual constituent would also be applicable.
Thus, for a mixed non-liquid HOC/California list metal waste, the statutory
prohibition on the metal is effective in 1987, but the HOC restriction is
not effective until 1989. Until 1989, therefore, the only applicable
restriction is the metal prohibition.
G. Single Constituent Addressed Under Multiple Rulernakings
Where a single constituent is addressed under more than one rulemaking,
the applicable treatment standard is that for the more specific waste
stream . For example, an HOC-containing waste that is also covered by the
FOOL spent solvent listing is prohibited from land disposal according to
the effective date for the solvent regulation and must be treated to the
level specified in t ’iat rule for FOOl waste.
H. Alternatives to Meeting the Treatment Standard
If the treatment standard for an LDR waste cannot be met, several
alternatives are available:
(1) Obtain a Treatability Variance ( 268.44)
In some cases, it may not be possible to treat a waste to the speci-
fied level, or a specified technology may not be appropriate for a waste.
A treatability variance allows the regulatory standard to be modified on
a waste—specific basis for wastes that are significantly different from
the wastes evaluated by EPA in setting the treatment standards and,
therefore, cannot be treated to the applicable standard. Table 4 lIsts
the major information requirements required In a petition for a variance
from a treatment standard. Headquarters is currently developing treat—
ability variance procedures specifically for Superfund wastes.
(ii) Obtain an Ecuivalent Treatment Method Petition ( 268.42(b))
This alternative is available for LOR wastes where the treatment
standard is expressed as a specific technology. Section 268.42(b) pro-
vides that any person may submit a petition to EPA demonstrating that
an alternative treatment method can achieve a measure of performance
equivalent to that achieved by the specified treatment technology.
Headquarters is currently developing petition procedures specifically
for Superfund wastes.
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-.8-
Tab e 4
Major Information Requirements for a Petition
for a Variance from a Treatment Standard
A detailed description of the petitioner’s waste (including data
and information on the physical and chemical characteristics of
the waste) that EPA can use to compare the petitioner’s waste to
the wastes considered by EPA in developing BOAT.
o If the waste has been treated, a description of the treatment
system, including the process design, operating conditions, and
an explanation of why the treatment standard cannot be achieved
using the treatment system, or an explanation of why the specified
treatment technology is inappropriate for the petitioner’s waste.
° If the waste has not been treated, an explanation of why the
petitioner believes the waste will react to treatment differently
from the wastes evaluated by EPA in developing the treatment
standard.
o A description of any alternative treatment systems examined by
the petitioner, and, as appropriate, the concentrations that
can be achieved by applying such treatment to the waste.
° The dates of the sampling and testing.
0 A description of the methodologies and equipment used to obtain
representative samples.
O A description of the sample handling and preparation techniques.
0 A description of the tests performed (including results).
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(iii) Obtain a Case—by—Case Extension (5 268.5)
In cases where the treatment or disposal capacity cannot reasonably be
made available by the effective date of the lana dispOSal prohibitions, the
the effective date can be extended for up to one year. This extension may
be renewed one time, for a total possible extension of two years. The
petition for the extension must demonstrate, among other things, that the
generator has made a good faith effort to locate adequate treatment,
recovery, or disposal capacity and that he has entered into a binding con-
tract to provide such capacity at a future time. During the extension
period, wastes may be disposed in a landfill or surface impoundment if the
facility meets minimum specified technological requirements.
Headquarters is currently evaluating whether use of such extensions Is
appropriate for Superfund wastes.
(iv) Obtain a No Migration Petition ( 268.6)
EPA will consider allowing land disposal of restricted wastes If a
petitioner can demonstrate, to a reasonable degree of certainty, that such
disposal will not allow migration of hazardous constituents from the dis-
posal unit or injection zone for as long as the wastes remain hazardous.
In general, a successful “no migration” petition will allow land disposal
only of a specific waste at a specific facility. Table S lists the major
information requirements for a “no migration” petition. Headquarters is
currently developing petition procedures specifically for Superfund wastes.
(v) Delist the Waste (Sections 260.20, 260.22)
A hazardous waste under RCRA can be formally delisted, however, this
process may be too time—consuming for Superfund response actions,
especially for removal actions. The current delisting process may take
from six to twenty—four months, depending on the type of material and the
completeness of data on the material.
I . Storage of Restricted Wastes
The 1984 RCRA amendments provide that LOR waste cannot be stored
unless such storage is solely for the purpose of accumulating sufficient
quantities for proper treatment, recovery, or disposal . Although no time
limit has been established on such storage, in the event of an enforcement
action, the storage facility bears the burden of demonstrating compliance
with this purpose where storage of LDR wastes exceeds one year. For periods
less than one year, EPA has the burden of proving that such storage is not
in compliance with this purpose. The regulation also provides that a
transporter of restricted wastes may only store such wastes at a transfer
facility for ten days.
Headquarters is currently working on the issue of temporary storage
of restricted Superfund wastes while awaiting implementation of on—site
treatment/disposal or procurement of off-site treatment/disposal.
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Tabl’e 5
t ajor Information Requirements for a
‘No Migration’ Petition
The identification and a full characterization of the specific
waste, including a comprehensive chemical and physical
characterization.
0 The identiricatlon and a comprehensive characterization of the
disposal unit, including background air, soil, and water quality.
° A demonstration that all waste and environmental sampling, test,
and analysis data are accurate and reproducible.
O A demonstration that EPA-approved sampling, testing, and estimation
techniques were used.
o A demonstration that all simulation models for the speeific waste
and disposal site c3nditions were calibrated, and that the models
were verified by actual measurements.
0 Analyses performed to identify and quantify any aspects that could
contribute significantly to uncertainty regarding the suitability
of the site, including the potential for damage from earthquakes,
floods, severe storms, droughts, or other natural phenomena.
0 A quality assurance and quality control plan that addresses all
aspects of the “no migration” demonstration.
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J. Exemption for Treatment in a Surface Impoundment
Treatment of LOP-subject wastes in surface impoundments is allowed
under specific provisions in 40 CFR Section 258. . These provisions state
that treatment of the restricted waste must occur in the impoundment;
representative samples of sludge and supernatent must be analyzed
separately to determine if they meet the applicable treatment standards
in Section 268.41 (or prohibition levels, where treatment standards have
not been established); treatment residues not meeting applicable standards
or levels must be removed annually and not placed in any other surface
impoundment; the impoundment must meet the operation and design requirements
of Section 264.221 or 255.221, or be exempted under those Sections; and the
owner or operator must submit to the Regional Administrator a certification
that these requirements have been met, with a copy of the waste analysis
plan.
K. Dilution and Mixing Prohibited
Dilution of restricted wastes with liquids or non—liquid agents (e.g.,
flyash, sawdust) to reach the desired concentration levels is prohibited
under 40 CFR Section 268.3. Such dilution may not be used as a substitute
for adequate treatment. (Note that solidification may be appropriate
treatment for some California list wastes at this time. See Section II
of this document.) Dilution as a part of proper treatment (e.g., addition
of fixing agents, addition of lime to neutralize) is allowed. Addition of
such substances produces physical or chemical changes and does not merely
dilute the hazardous constituent into a larger volume of waste so as to
lower the constituent concentration.
The prohibition on dilution also applies to residuals after treatment.
In particular, wastes meeting Subpart D treatment standards must not be
mixed with wastes that do not meet such standards in order to achieve the
treatment standard (or prohibition level) for the mixture.
Restricted wastes may not be mixed unless they are mixed with wastes
that require treatment or facilitate treatment. Where wastes are mixed In
accordance with this principle, the lowest treatment standard (or prohibi-
tion level) must be achieved for the constituent of concern.
L. Disposal of Lab Packs Containing Restricted Wastes
If a lab pack contains restricted wastes, the entire lab pack is
subject to LOP. The lab pack may not be land disposed unless the
restricted wastes are removed prior to land disposal , the restricted
wastes in the lab pack meet the treatment standards (or prohibition
levels), or a successful “no migration” petition has been made.
M. Testing and Recordkeeping
Generator recuirernents . Generators are responsible for determining
whether their wastes are restricted from land disposal. Such determina-
tions can be made based on knowledge of the waste, testing, or both.
When the determination IS based solely on knowledge, the generator must
keep all supporting documentation in his files.
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A generator who determines that- a waste re’ uires treatment prior to
land disoosal must notify the treatment facility in writing of t ie appro-
priate treatment standard (or prohibition le’iel) for the waste. The
notification must specify the EPA Hazardous Waste 4umoer, the applicable
treatment standard (or prohibition level), the manifest number associated
with the shipment of waste, and include the waste analysis data (if
available).
A generator who determines that a waste can be land disposed without
treatment must submit to the disposal facility a notice which contains
E E P azardous Waste Number, the manifest number, the applicable treat-
ment standard (or prohibition level), and the waste analysis data (if
available) or cross references to relevant data submitted at an earlier
time, plus a certification statement. See Section 268.7(a)(2)(ii) for the
appropriate wording for the certification.
If a generator’s waste is subject to a case—by-case extension, a
‘no migration” petition, or a nationwide variance from the effective date,
he must submit a notice to the land disposal facility receiving the waste,
stating that the waste is exempt from the land disposal restrictions.
For CERCLA actions where the waste has been granted an exemption or
variance specific to CE CLA waste (e.g., soil and debris, RCRA—listed
solve’its) and the waste does not meet LDR treatment standards, the OSC/RPM
must provide to the land disposal facility a notice that the waste is a
CERCLA waste and exempt from LDR, along with any waste analysis data
available. The notice may read:
“I notify ( facility ) that the waste
transported under this manifest number is a waste generated
from a (remedial or) removal action taken under the Compre-
hensive Environmental Response, Compensation, and Liability
Act of 1980 (CZRCLA) and is exempt from prohibitions on
land disposal under 40 CFR Part 268.”
- Treatment facility recuirements . An off-site treatment facility must
obtain the required data from the generator prior to treatment and place
that data in the operating record. Treatment residues must be tested
prior to land disposal according to the frequency specified in the treat-
ment facility’s waste analysis plan to determine if treatment has achieved
the required levels. For example, if the waste analysis plan calls for
testing of each batch of waste from an incineration process, these data
must be submitted to the land disposal facility.
Each waste shipment to a disposal facility must be accompanied by a
certification statement including cross references to any relevant data
submitted at an earlier time, and a notice which includes the EPA
Hazardous Waste Number, the manifest number, the applicable treatment
standard (or prohibition level), and the waste analysis data (if available).
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Where the treatment standard rs performance-based. the certification -
must be worded according to Section 268.7(b)(2)(i). Where the treatment
standard for an applicable waste is a specified method of treatment, the
last facility to treat the waste must certify to t ie land disposal facility
that the waste has been treated using the specified technology. See Section
268.7(b)(2)(ii) for the appropriate wording.
Land disposal facility reouirements . The disposal facility, which is
ultimately responsible for verifying that only wastes meeting the treatment
standards (or prohibition levels) are land disposed, must maintain all docu-
mentation that the waste has been treated in accordance with the standards.
Land disposal facilities must test their wastes to determine compliance
with treatment standards as frequently as specified in the facility’s waste
analysis plan. If generation, treatment, and disposal all occur at the
same site, all testing records must be placed in the operating record.
II. C ILIFORNIA LIST PROHIBITIONS
A. Overview
The California list wastes include five categories of waste: free
cyanides, metals, corrosives, polychlorinated biphenyls (PCBs), and
halogenated organic compounds (HOCs). With the exception of HOCs, the
California list addresses only liquid wastes; HOCs are regulated under
LDR in both liquid and non-liquid forms. Land disposal prohibitions went
into effect on July 8, 1987. for the free cyanides, metals, corrosives,
PCBs, and dilute HOC wastewaters . The effective date for the other HOC
wastes was extended.
The 1984 RC A amendments (section 3004(d)) established prohibition
levels for the land disposal of California list wastes that would go into
erfect on July 8, 1987, unless EPA promulgated more protective treatment
levels by that date. In the July 8 California list rule. EPA does not set
treatment levels for the free cyanides and metals, but instead allows the
statutory prohibitions to take effect at this time. (More stringent levels
may be established, however, in the coming months.) For corrosive wastes,
the California list rule codifies the statutory prohibition levels. For
PC8s and HOCs (except dilute HOC wastewaters), the California list rule
establishes treatment standards.
Note that the California list addresses fairly broad categories Of
waste. Many of these wastes have been, or will be, covered by other LDR
rulemakings, such as the spent solvent restrictions. Because the other
regulations address more specific waste streams, where a California list
waste is also covered by another rulemaking, the restrictions in the other
regulation will take precedence over the California list prohibitions.
In order to be subject to the California list land disposal prohibi-
tions, a given waste must meet four criteria: 1) the waste must contain
a constituent specified in the California list provisions or have a pH
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-1.4-.
less than or equal to 2 (RCRA section 3004(d)): 2) the pnystcal form of
the waste must be a liquid (except for HOCs); 3) the wastes containing
the California list constituent must be listed or Iden tified as hazardous
under RCRA section QOI. (as implemented in 40 C R Part 261); and 4) the
waste iust contain a concentration of one or more California list
constituents at or above the prohibition levels specified in RCRA section
3004(d), or more stringent levels that may be specified by EPA in the LDR
regulations.
With regard to criterion two, (the waste must be a liquid), note
that the rule generally requires use of the Paint Filter Liquids Test to
determine if a given waste is a liquid (Method 9095 in EPA Publication
SW -846). Once a waste is determined to be a liquid and to exceed the
applicable prohibition levels, however, the entire waste Is restricted
from land disposal, not just the liquid portion.
With regard to criterion three (the waste must be a RCRA hazardous
waste), in some cases it may not be possible to determine if a Superfund
hazardous waste is also a RCRA hazardous waste. For example, it may be
possthle to determine that a given waste Contains trichioroethylene, but
it may not be possible to determine whether the source of the trichioro—
ethylene is one of the processes regulated under RCRA. Headquarters is
continuing to work on developing a policy for Superfund compliance with
LDR for such ‘unknowns.”
These four criteria are discussed in greater detail below for each of
the California list wastes.
B. Free Cyanides and Metals
Definition . To determine if a given waste contains free cyanides for
purposes of RCRA section 3004(d), the ru1e requires that the filtrate from
the Paint Filter Liquids Test be analyzed for free cyanides. The rule
does not require use of a particular analytical test, but recoumiends use
of the Cyanides Amenable to Chlorination test in Method 9010 (EPA Publica-
tion SW-846) for determining free cyanide concentrations.
The California list metals are: arsenic, cadmium, chromium VI, lead,
mercury, nickel, selenium, and thallium. These metals are defined with
reference to the periodic table of elements. The LDR provisions apply
both to individual constituents and to the relevant metal portion of any
compounds containing such metals.
Physical Form Recuirement . To determine if a given free cyanide or
metal waste is a liquid for the purposes of RCRA section 3004(d), the rule
requires use of the Paint Filter Liquids Test.
Hazardous Waste Reauirement . To be subject to LOR provisions, the
waste must be regulated as hazardous under RCRA. Thus, a given waste must
contain the specified cyanides or metals, and also be either listed as
hazardous under 40 CFR Part 251 or exhibit one or more characteristics of
hazardous waste identified in Part 261 (i.e., igriitability, corrosivity,
reactivity, or E t3xicity).
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Prohibited Levels . The
cyanideS and metals at this
“hammer” under RCRA section
hibits land disposal of the
(i)
(ii)
( iii)
(iv)
(v )
(vi
(vi
(vi
To determine if a waste contains free
these statutory prohibitions, a generator
or must test the filtrate from the Paint
recommends use of the applicable methods
test the filtrate.
associated with
concentrations
cyanides or metals that exceed
may use knowledge of his waste
Filter Liquids Test. The rule
in EPA Publication No. SW—846 to
rule does not establish treatment standards foi
time. Instead, EPA is allowing the statutory
3004(d) to fall on Juj 8. The statute pro—
fol lowing:
0 “Liquid hazardous wastes, including free liquids
any solid or sludge, containing free cyanides at
greater than or equal to 1,000 mg/i.’
o “Liquid hazardous wastes, including free liquids associated with
any solid or sludge, containing the following metals (or elements)
or compounds of these metals (or elements) at concentrations
greater than or equal to those specified below:
arsenic and/or compounds (as As) 500 mg/i;
cadmium and/or compounds (as Cd) 100 mg/i;
chromium VI and/or compounds (as Cr V I) 500 mg/i;
lead and/or compounds (as Pb) 500 mg/i
mercury and/or compounds (as Hg) 20 mg/i;
nickel and/or compounds (as Ni) 134 mg/i;
sele”iium and/or compounds (as Se) 100 mg/i; and
thallium and/or compounds (as Th) 130 mg/i.”
i)
ii)
Although EPA is not promulgating treatment standards for these wastes
at this time, the Agency is planning to publish in the near future a
Notice of Data Availability and Request for Comment. This notice will
outline the Agency’s approach to substituting more stringent prohibition
levels for the cyanide and metal wastes. Because this notice had not
been written at the time of this memorandum, we are not able to provide
you with a draft for review in advance of the publication date. Instead,
we will telephone the Regions when the publication date is known, and
request that each Region obtain a copy of that Federal Register to review
the proposed approach. Comments should then be provided to Headquarters
at least one week prior to the close of the public corimient period for this
notice to allow adequate time for us to compile Regional comments . Removal
personnel should submit comments to Jean Schumann by telephone (FTS 382-4671),
E-Mail, or in writing (WH-548/B, Emergency Response Division). Remedial
personnel should submit comments to John Cunningham (FTS 382-2446, WH—548/E,
Hazardous Site Control Division).
Treatment of Restricted Metals . Section IV.D of the preamble to the
California list rule states that legitimate solidification technologies
are appropriate for use on California list metal—bearing wastes, at least
until treatment standards are established for such wastes. The preamble
also notes that the liquids in landfills prohibitions set forth in Sections
264.314 and 265.314, which place certain prohibitions on the use of
absorbents, remain applicable.
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C. Corros;ve
Definition . The California list corrosive wastes are derined as having
a pH less than or equal to 2.
Physical Form and Hazardous Waste Requirement . The statute applies to
liquid (acidic) corrosive wastes. The rule requires the use of the Paint
Filter Liquids Test to determine if the given waste is a liquid. Acidic
wastes are defined as hazardous based on the characteristic of corrosivity
found at 40 CFR Section 261.22(a)(1) when the pH is less than or equal to 2.
If these wastes are treated to a pH greater than 2. they are no longer
characteristic hazardous wastes and may be land disposed in a Subtitle U
facility. In addition, because the regulation does not establish a
technology-based treatment standard, corrosive wastes may be rendered non—
liquid by chemical fixation or other treatment methods and be eligible for
land disposal. If a waste is hazardous solely because of the characteristic
of corrosivity, rendering it non-liquid also renders it nonhazardous because
the characteristic of corrosivity based on low pH applies only to aqueous
wastes.
Prohibition Levels . The rule codifies the statutory prohibition level
(pH less than or equal to 2), but does not establisri a treatment standard
for corrosive wastes. The Agency plans to address the issue of appropriate
treatrient standards for corrosive wastes when it promulgates regulations
for the remaining listed wastes.
To determine if a waste has a pH which exceeds the prohibition level,
a generator may use knowledge of his waste, or must test the total waste
(not an extract or filtrate) using the existing method for corrosivity
specified in 40 CFR Section 261.22(a)(1).
0. Polychiorinated Biphenyls (PCBs)
Definition . PCBs are defined in accordance with the Toxic Substances
Control Act (TSCA) regulations as “any chemical substance that Is limited
to the biphenyl molecule that has been chorinated to varying degrees or
any combination of substances which contain such substance.” In addition,
inadvertently generated non—Aroclor PCBs are defined as “the total PCBs
calculated following division of the quantity of monochlorinated biphenyls
by 50 and dichiorinated biphenyls by 5.” (40 CFR Section 761.3)
Physical Form Recuirement . To determine if a given waste is a liquid
for purposes of this rule, the Paint Filter Liquids Test is required.
Hazardous Waste Requirement . Liquid PC3—containing wastes are subject
to the California list prohibitions only if they are mixed with or other-
wise contained in wastes which are listed as hazardous under 40 CFR Part
251, or if the mixture exhibits one or more of the characteristics of
hazardous waste identified in that Part.
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Prohibitidn Levels . The rule codifies the SO ppm pronibition level in
section 3004(d) of trie RCRA amendments. Therefore, liquid hazardous wastes
containing greater than or equal to 50 ppm may not be land disposed. The
rule requires that once a waste is determined to be a hazardous liquid,
then the total waste (not an extract or filtrate) must be analyzed to
determine if the 50 ppm PC3 level is exceeded.
Treatment Standards . The rule requires thermal destruction (j.e.,
treatment in incinerators or high efficiency boilers ) of restricted PCB
wastes pursuant to the operating standards set fortn in 40 CFR Sections
761.60 and 761.70.
The T5C regulations state that where there is an inconsistency between
TSCA and RCRA standards, the more stringent regulations govern. Therefore,
although TSCA allows land disposal in certain cases of wastes containing
between 50 and 500 ppm PC3s, such land disposal would not be allowed if the
PC3 waste is also restricted under the California list rule. Additionally,
because TSCA does not allow any land disposal of liquid PCB wastes at
concentrations greater than or equal to 500 ppm, such wastes that are
also covered by the California list rule are not eligible for a no
migration” petition under LOR (see Section t of this document).
The LDR framework provides that where a treatment standard Is expressed
as a specific technology, any person may submit a petition demonstrating
that an alternative technology can achieve an equivalent measure of
performance. Headquarters is currently developing such petition procedures
specifically for Superfund wastes.
Effective Date . The effective date of the California list prohibitions
for liquid PCB wastes is July 8, 1987.
E. Halogenated Organic Compounds (HOCs)
Definition . HOCs are defined as those compounds having a carbon—
halogen bone which are listed under Appendix III to Part 268 (added by the
July 8 rule).
Physical Form Recuirement . The rule regulates HOC wastes in both liquid
and non—liquid form. (However, soil and debris from CERCLA response actions
are exempted from LDR until November 1988.) The Paint Filter Liquids Test
is required to determine if the waste is a liquid. With regard to liquid
HOCs, the rule also establishes dilute HOC wastewater as a separate treat-
ability group. Dilute HOC wastewaters are defined as liquid hazardous
wastes that are primarily water and contain HOCs in total concentration
greater than or equal to 1,000 mg/l and less than 10,000 mg/i.
Hazardous Waste Recuirement . Wastes containing HOCs are only subject
to the California list prohibitions if the waste is listed as hazardous
under 40 CFR Part 251 or exhibits one or more of the characteristics of
hazardous waste identified in that Part.
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Prohibition Levels . The land disposal ronibit1On in the California
list rule applies oniy to hazardous wastes containing HOCs in total
concentration greater than or equal to 1,000 mg/I (liquids) or 1,000 mg/kg
(non—liquids). In determining whether a waste contains HOCs above these
prohibition levels, only those HOCS which are 1 iste’i in Part 258 Appendix
III must be considered. The generator may use knowledge of his waste or
must test the total waste (not an extract or filtrate) to determine HOC
concentration. The rule does not require use of a specific test.
Relationship to PC3 Restriction . PCBs are also HOCs, but because PCBs
are the more specific waste stream, the PCB prohibition level (50 ppm)
would apply for liquid hazardous wastes contatrling PCS5. Therefore, a
liquid HOC waste that contains greater than or equal to 50 ppm PCBs may
not be land disposed, even if total HOCs are below 1,000 mg/i. However, a
non-liquid HOC waste that contains greater than or equal to 50 ppm PCBs may
be land disposed under this rule as long as total HOCs are below 1,000
mg/kg. If total HOCs in a liquid or non—liquid hazardous waste are greater
than or equal to 1,000 mg/kg, the waste may not be land disposed even If
PCB concentrations are below 50 ppm.
Treatment Standards . The rule establishes incineration (in accordance
with 40 CFR Par: 254 Subpart 0 or 40 CFR Part 23 Suopart 0) as the treat-
ment standard for all hazardous wastes containing HOCs in total concentra-
tion greater than or equal to 1,000 mg/kg (non—liquids) or 1,000 mg/i
(liquids) except dilute HOC wastewaters. However, as noted earlier, If
an HOC—containing waste is already subject to a treatment standard for a
specific HOC (e.g., FOOl spent solvent), the treatment standard for the
more specific HOC waste would take precedence. Thus, the waste would have
to meet the treatment standard for the solvent waste, but need not be
incinerated.
The LDR framework provides that where a treatment standard is expressed
as a specific technology, any person may submit a petition demonstrating
that an alternative technology can achieve an equivalent level of performance.
Headquarters is currently developing such petition procedures specifically
for Superfund wastes.
With regard to dilute HOC wastewaters , these wastes must be treated
below the 1,000 mg/i proh bition level prior to land disposal , but no
particular technology is required under this rule.
Effective Dates . Due to a lack of incineration capacity, the rule
provides a 2—year nationwide variance from the statutory effective date
for most HOC wastes until July 8, 1989. However, the prohibitions on land
disposal of dilute HOC wastewaters take effect on July 8, 1987.
Note again, that if an HOC waste is also covered under a more waste—
specific rulemaking, the treatment standard and effective date for the more
waste—specific rule are applicable.
F. Summary of California List Prohibition Levels
The following table summarizes the prohibition levels for the
California list wastes.
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Table 6
California List Prohibition Levels
Waste Prohibition Level
Free cyanides 1000 mg/I
Metals:
Arsenic 500 mg/i
Cadmium 100 mg/i
Chromium VI 500 mg/i
Lead - 500 mg/i
Mercury 20 mg/i
Nickel 134 mg/i
Selenium 100 mg/i
Thallium 130 mg/i
Corrosives ph < 2
PCBs 50 ppm
HOCs
Mon—liquids 1000 mg/kg
Liquids 1000 mg/i
Dilute Wastewaters 1000 mg/i
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Revise i Procedures for Implementing
Ott-Site Response Actions
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UnsIs t.t.s urvic. 01
1iwumi mniaI Pro,.cton S id Waits m d
Em.rg.ncy R..o s .
O rM DIRECTiVE NUMBER: 983411
TITLE: Revis Proo ures for Thp1ar ttirq Off-Site
Acti s
APPROVAL DATE: November 13, 1987
EFFECTIVE DATE: NoVe btT 13, 1987
ORIGINATING OFFICE: office of Waste Pi uS
Q FINAL (Interim)
ORAFT
LEVEL OF DRAFT
CiA—SignedbyAAorD&A
o 8 — Signed by Office Director
o c — Review & Comment
REFERENCE (other documents):
SWER OSWER OSWER
DIRECTIVE DIRECTIVE DI
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:— Unuied Siets. Envuronflwrtti* Protction Agency
OSWER Directive Initiation Request
i Direciiwe Num
‘
Teie flcne Code
2. Odefostor Infoiinseoo
Office
rne of Contact Person Mail Cod.
N NC 1 B IE t —S27
3’flt le
475—g126
Revis ProcedLWeS for In laientiz Off-Site Response Actions
of
4jIIVnIty of Directive (undude brief statement
This Directive desoribe procedures that sl uld be observed wben a response action
.u3er A or Section 7003 of A involves tbe off-site treatoent, storage or
disposal of A baste.
J
Off-Site Policy, Off-Site Waste, A Waste, Off-Site War t of Waste
bàooss Thu Qirecove SupersedS Previous Directive(s)’
No Yes Whit *sc e (nulT s. .)
1) Pr ce ures for Pla Iipl.
of -site Response
i e m e n D e ( sP Ho
A - Signed by *.AJD*A B - Signed by 01k. Director C - For Review & Cwrenent 0- N i Dui unord
18. Document to be distributed to States by Headquarters? 0 Yes No
* Requet Mesto OSWER OtrecOves Systus Persist Stendsrds .
011
a. Signature of ud Of Ce Directives Coordinator
A 2 1 j 4 i’l t 4i P
1O.Naine •o1
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6’
OSWER OSWER OSWER 0
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DIRECTIVE
DiRECTIVE
DIRECTIVE
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,• •‘ 1 ’ o
i O UNITED STATES ENVIRONMENTAL. PROTECTION AGENCY
WASHINGTON D.C. 20410
November 13, 1987
ocetce oc
SOUD WASTS AND £ME OENCY SSPONSE
MEMORANDUM
S(JBJECT : ( evised Procedures for Planning and Implementing
Off—ei e Re na Actio a
FROM:
ss3.5tant Administrator
TO: Regional Administrators
Regions I—X
With this memo I am transmitting the revised procedures
for planning and implementing off—site response actions (the
“off—site policy”). These procedures should be observed when
a response action under the Comprehensive Environmental Response,
Compensation and Liability Act (CERCT,A) or Section 7003 of the
Resource Conservation and Recovery Act (RCRA) involves off-site
treatment, storage or disposal of CERCLA waste.
This policy incorporates all of the mandates of CERCL A as
amended by the Superfund Amendments and Reauthorization Act
(SARA) and expands several of the more stringent requirements
when applying them to wastes resulting from CERCLA decision
documents signed, and RCRA section 7003 actions initiated,
after the enactment of SARA. This revised policy also
reinterprets the original off—site policy, issued in May 1985,
as it applies to CERCLA wastes resulting from decision
documents signed, and RCRA section 7003 actions initiated,
before the enactment of SARA.
This revised policy is effective immediately upon issuance.
It is considered to be an interim final policy as key elements
of the policy will be incorporated in a proposed rule to be
published in the Federal Register . As part of that rulemaking,
the policy will be subject to public comment. Comments received
during that period may cause additional revisions to the policy.
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If you have comments regarding this revised policy,
please Contact Gene r..ucero, Director, Office of Waste Programs
En forcement.
Cc: Waste Management Division Directors
Regions I—x
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983&1 I
REVISED PROCEDURES FOR IMPLEMENTING OFF-SITE RESPONSE ACTIONS
I. INTRODUCTION
The off-site policy describes procedures that should be
observed when a response action under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCL&)
or Section 7003 of RCRA involves off-site storage, treatment or
disposal of CERCLA waste. The procedures also apply to actions
taken jointly under CERCL and another statute.
The purpose of the off—site policy is to avoid having
CERCLPI wastes contribute to present or future environmental
problems by directing these wastes to facilities determined to
be environmentally sound. It is EPA’S responsibility to ensure
that the criteria for governing off—site transfer of CERCLA
waste result in decisions that are environmentally sensible and
that reflect sound public policy. Therefore, in developing
acceptability criteria, the Agency has applied environmental
standards and other sound management practices to ensure that
CERCLA waste will be appropriately managed.
EPA issued the original off-site policy in May 1985. See
“Procedures for Planning and Implementing Off-Site Response
Actions”, memorandum from Jack W. McGraw to the Regional
Administrators. That policy was published in the g.
Register on November 5, 1985. The 1986 amendments to CERCLA,
the Superfurid Amendments and Reauthorization Act (SARA),
adopted EPA’S policy for off-site transfer of CERCIJI wastes,
with some modifications. CERCLA §121(d) (3) requires that
hazardous substances, pollutants or contaminants transferred
off-site for treatment, storage or disposal during a CERCIJI
response action be transferred to a facility operating in
compliance with H3004 and 3005 of R RA and other applicable
laws or regulations. The statute also requires that receiving
units at land disposal facilities have no releases of hazardous
wastes or hazardous constituents. Any releases from other
units at a land disposal facility must also be controlled by a
RCRA or equivalent corrective action program. While the
original policy required compliance with RCRA and other
applicabl, laws, SARA goes beyond the original policy,
primarily by prohibiting disposal at units at a land disposal
facility with releases, rather than allowing the Agency to
judge whether the releases constituted environmental conditions
that affected the satisfactory operation of a facility.
The off-site policy has been revised in light of the
mandates of SARA. This revised policy also extends the SARA
concepts to certain situations not specifically covered by the
statute. These requirements apply to CERCIA decision documents
signed, and RCRA §7003 actions taken, after enactment of SARA.
Specifically, this policy covers:
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9834.11
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o Extending SARA’s “no release” requirement to all RCRA
units receiving CERCLA waste, not just units at RCRA
land disposal facilities;
o Expanding SARA’s release prohibition to include
releases of CERCU hazardous substances, in addition
to releases of RCRA hazardous waste and hazardous
Constituents;
o Addressing releases from other units at RCRA treatment
and storage facilities; and
o Addressing off—site transfer to flon—RCRA facilities.
The revised policy also reinterprets the May 1985 policy as it
now applies to CERCLA decision documents signed, and RCRA §7003
actions taken, prior to the enactment of SARA.
The revised off-site policy is effective immediately up n
issuance. it is considered to be an interim policy as key
elements of the policy will, be incorporated in a proposed rule
to be published in the r j As part of that
rulemaking, the policy will be subject to public comment.
Comments received during that period may cause additional
revisions to the policy. The final rule will reflect the final
policy under CERCLA §121(d) (3) and EPA will issue a revised
implementation policy memorandum if necessary.
II. APPLICABILITY
There are a number of variables which will determine
whether and how the off-site policy applies: waste type,
authority, funding source, and whether the decision document or
order supporting the clean—up was signed before or after the
enactment of SARA (i.e., before or after October 17, 1986). In
order to determine which elements of the policy apply to a
specific CL cleanup each factor must be considered.
The first factor to consider is the type of waste to be
transfezzed. The revised policy applies to the off-site
treatment, storage or disposal of all CERCL waste. CERCLA
wastes include R RA hazardous wastes and other CERCLA hazardous
substances, pollutants and contaminants. R RA hazardous wastes
-arc either listed or defined by characteristic in 40 CPR Part
261. CERCLA hazardous substances are defined in 40 CFR 300.6.
Because R RA permits and interim status apply to specific
wastes and specific storage, treatment or disposal processes,
the Remedial Project Manager (RPM) or On—Scene Coordinator
(OSC) must determine that the facility’s permit or interim
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—3—
status authorizes receipt of the wastes that would be
transported to the facility and the type of process
contemplated for the wastes. Therefore, it is important that
facility selection be coordinated with RCRA personnel.
A CERCL hazardous substance that is not a RCRA hazardous
waste or hazardous constituent (i.e., flon-RCRA Waste) may be
taken to a R RA facility if it is not otherwise incompatible
with the RCRA waste, even though receipt of that waste is not
expressly authorized under interim status or in the permit.
NOn-RCRA wastes can also be managed at non—RCRA facilities.
Criteria applicable to CERCLA wastes that can be disposed of at
non-Subtitle C facilities are discussed later in this revised
policy.
The second factor to consider in determining whether this
revised policy applies is the statutory authority for the
action. This revised off-site policy applies to any remedial
or removal action involving the off-site transfer of any
hazardous substance, pollutant, or contaminant under any CERCLA
authority or under RCRA §7003. This policy also applies to
response actions taken under §311 of the Clean Water Act,
except for cleanups of petroleum products. The policy also
covers cleanups at Federal facilities under §120 of SARA.
The third factor to assess is the source of funding. The
revised policy applies to all Fund-financed response actions,
whether EPA or the State is the lead agency. The policy does
not apply to State—lead enforcement actions (even at NPL sites)
if no CERCLA funds are involved. it does apply to State-lead
enforcement actions where EPA provides any site-specific
funding through a Cooperative Agreement or Multi-Site
Cooperative Agreement, even though the State may be using its
own enforcement authorities to compel the cleanup. Similarly,
non—NPL sites are covered by this policy only where there is an
expenditure of Fund money or where the cleanup is undertaken
under CERCL& authority.
The final factor that affects how this revised policy
applies is the date of the decision document. As noted
earlier, there are two classes of actions subject to slightly
different procedure, governing off-site transfer: first, those
actions resulting from pre—s decision documents or RCRA
§7003 orders issued prior to October 17, 1986, are subject to
the May 1985 policy as updated by this revised policy; and
second, those actions resulting from post—SARA decision
documents or R RA §7003 orders issued after October 17, 1986,
are subject to the requirements of SARA as interpreted and
expanded by this revised policy. Although the procedures in
this policy are similar for these two classes of actions, there
are important differences (e.g., the requirements pertaining to
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—4—
releases from other units at a facility) that will be
highlighted throughout this document.
Compliance with the revised procedures is mandatory for
removal and remedial actions. However, there is an emergency
exemption for removals if the OSC determines that the
exigencies of the situation require off -site treatment, storage
or disposal without following the requirements. This exception
may be used when the OSC believes that the threat posed by the
substances makes it imperative to remove the substances
immediately and there is insufficient time to observe these
procedures without endangering public health, welfare or the
environment. In such cases, the OSC should consider temporary
solutions (e.g., interim storage) to allow time to locate an
acceptable facility. The OSC must provide a written
explanation of his or her decision to use this emergency
exemption to the Regional Administrator within 60 days of
taking the action. In Regions in which authority to make
removal decisions has not been fully delegated by the Regional
Administrator to the OSC, the decisions discussed above must be
made by the Regional off icial to whom removal authority has
been delegated. This emergency exemption is also available to
OSC’s taking response actions under §311 of the Clean Water
Act.
XII. DEFINITIONS
A. Release
For the purposes of this policy, the term “release” is
defined here as it is defined by §101(22) of CERCLA, which is
repeated in 40 CFR 300.6 of the NCP, and the R RA §3008(h)
guidance (“Interpretation of Section 3008(h) of the Solid Waste
Disposal Act”, memorandum from J. Winston Porter and Courtney
14. Price to the Regional Administrator,, , December 16,
1985). To s” arjz., a release is any spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injection,
escaping, leaching, dumping or disposing to the environment.
This include, releases to surface water, ground water, land
surfa c e 1 ,. soil and air.
A release also includes a substantial threat of a release.
In determining whether a substantial threat of release exists,
both the imminence of the threat and the potential magnitude of
the release should be considered. Examples of situations where
a substantial threat of a release may exist include a weakened
or inadequately engineered dike wall at a surface impoundment,
or a severely rusted treatment or storag. tank.
Q minimis releases from receiving units are exempt; that
is, they are not considered to be releases under the off-site
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—5—
policy. Q minimis releases are those that do not adversely
affect public health or the environment, such as releases to
the air from temporary opening and closing of bungs, releases
between landfill liners of 1 gallon/acre/day or less, or stack
emissions from incinerators not otherwise subject to Clean Air
Act permits. Releases that need to be addressed by
implementing a contingency plan would not normally be
considered minimis releases.
Federally-permitted releases, as defined by CERCLA
§101(10) and 40 CFR 300.6, are also exempt. These include
discharges or releases in compliance with applicable permits
under RCRA, the Clean Water Act, Clean Air Act Safe Drinking
Water Act, Marine Protection, Research and Sanctuaries Act, and
Atomic Energy Act or analogous State authorities.
For purposes of this policy, an interim status unit in
R RA ground-water assessment monitoring (under 40 CFR 265.93)
or a permitted unit in compliance monitoring (under 40 CFR
264.99) is not presumed to have a release. EPA will evaluate
available information, including the data which led to a
determination of the need for assessment or compliance
monitoring, data gathered during assessment monitoring, and any
other relevant data, including that gathered from applicable
compliance inspections. A determination of unacceptability
should be made when information will support the conclusion
that there is a probable release to ground water from the
receiving unit. Finding a release can happen at any time
before, during or after an assessment or compliance monitoring
program.
On the other hand, it is not necessary to have actual
sampling data to determine that there is a release. An
inspector may find other evidence that a release has occurred,
such as a broken dike or feed line at a surface impoundment.
Less obvious indications of a release might also be adequate to
make the determination. For example, EPA could have sufficient
information on the contents of a land disposal unit, the design
and operating characteristics of the unit, or the hydrogeology
of the area in which the unit is located to conclude that there
is or has been a release to the environment.
B. Receivina Unit
The receiving unit is any unit that receives off—site
CERCIA waste:
(1) for treatment using BDAT, including any pre-
treatment or storage units used prior to treatment;
(2) for treatment to substantially reduce its mobility,
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9834.1
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toxicity or persistence in the absence of a defined
BDAT; or
(3) for storage or ultimate disposal of waste not treated
to the previous criteria.
Note that the acceptability criteria nay vary from unit to
unit, and that the receiving unit may vary from transfer to
transfer.
C. Other Units
Other units are all other regulated units and solid waste
management units (SWMU’s) at a facility that are not receiving
units.
D. Controlled Release
In order to be considered a controlled release, the
release must be addressed by a R RA corrective action prograi
(incorporated in a permit or order) or a corrective action
program approved and enforceable under another applicable
Federal or delegated State authority.
E. Relevant Violations
Relevant violations include Class I violations as defined
by the RCRA Enforcement Response Policy (December 21, 1984, and
subsequent revisions) at or affecting a receiving unit. A
Class I violation is a significant deviation from regulations,
compliance order provisions or permit conditions designed to:
o Ensure that hazardous waste is destined for and
delivered to authorized facilities;
o Prevent releases of hazardous waste or constituents
to th, environment;
o Ensure early detection of such releases; or
o Compel corrective action for releases.
Recordkeeping and reporting requirements (such as failure to
submit the biennial report or failure to maintain a copy of the
closure plan at the facility) are generally not considered to
be Class I violations.
Violations affecting a receiving unit include all
ground-water monitoring violations unless the receiving unit is
outside the waste management area which the ground-water
monitoring system was designed to monitor. Facility-wide Class
I violations (such as failure to comply with financial
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responsibility requirements, inadequate closure plan,
inadequate waste analysis plan, inadequate inspection plan,
etc.) that affect the receiving unit are also relevant
violations.
Violations of State or other Federal laws should also be
examined for relevance, considering the significance of the
requirement that is being violated; the extent of deviation
from the requirement; and the potential or actual threat to
human health or the environment.
F. Relevant Release
A relevant under this revised policy includes:
o Any release or significant threat of release of a
hazardous substance (defined in 40 CFR 300.6) not
previously excluded (i.e., gg minimis releases or
permitted releases) at all units of a RCRA Subtitle C
land disposal facility and at receiving units of a’
RCRA Subtitle C treatment or storage facility; and
o EnvironitLentallY significant releases of any hazardous
substance not previously excluded at non—receiving
units at RCRA Subtitle C treatment and storage
facilities and at all units at other facilities.
Relevant conditions include any environmental conditions
(besides a relevant violation) at a facility that pose a
significant threat to public health, welfare or the environment
or that otherwise affect the satisfactory operation of the
facility.
H. Responsible Aaencv
Determinations of acceptability to receive an off-site
transfer of ERCL& waste will be made by EPA or by States
authori*sd for corrective action under §3004(u) of RCRA.
References in this document to the “responsible Agency” refer
only to EPA Regions or to States with this authority.
I. Responsible Government Official
• The responsible government official is that person
authorized in the responsible Agency to make acceptability
determinations under this revised policy.
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IV. ACCEPrABILITY CRITERIA
A. AcceDtability Criteria for Wastes Generated Under Pre-S
Decision Documents
CERCLA wastes from actions resulting from pre-s
decision documents and pre-SARA RCRA § 7003 orders may go to a
facility meeting the following criteria:
o There are no relevant violations at or affecting the
receiving unit: and
o There are no relevant conditions at the facility
(i.e., other environmental conditions that pose a
significant threat to public health, welfare or the
environment or otherwise affect the satisfactory
operation of the facility).
In order to determine if there is a relevant Violation,
an appropriate compliance inspection must be conducted no more
than six months before the expected date of receipt of CERCLA
waste. This inspection, at a minimum, must address all
regulated units. This inspection may be conducted by EPA, a
State or an authorized representative. When a State conducts
the inspection, it should determine the facility’s compliance
status. Where a violation or potential violation comes to
EPA’s attention (e.g., through a citizen complaint or a
facility visit by permit staff), the Region or State is
expected to investigate whether a violation occurred as soon as
is reasonably possible.
The May 1985 policy does not refer specifically to
releases. Rather, a corrective action plan is required for
relevant conditions. Therefore, in some cases, a facility
receiving CERCLA wastes from an action subject to a pre-SARA
decis ion document may not need to institute a program to
control releases. Releases will be evaluated by the
responsible Agency to determine whether such releases
constitute relevant conditions under this policy.
Th activities related to determining acceptability,
providing notice to facilities, regaining acceptability and
implementation procedures are discussed in the “Implementation”
section of this document, and apply to off—site transfers of
waste generated under pre—SARA and post-SARA decision
documents.
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B. Acce tabj1jty Criteria for Wastes Generated Under Post-
Decision Documents
Under this revised policy, there are three basic criteria
that are used to determine the acceptability of a facility to
receive off-site transfers of CERCLA waste generated under a
post-SARA decision document or post-SARA RCRA §7003 cleanup.
The criteria are:
o There must be no relevant violations at or affecting
the receiving unit;
o There must be flQ releases from receiving units and
contamination from prior releases at receiving units
must be addressed as appropriate; and
o Releases at other units must be addressed as
appropriate.
The last two criteria are applied somewhat differently,
depending on the type of facility. These differences are
described below.
1. Criteria AD licpb1e to All RCRA Subtitle c Treatment
Storage and Disposal Facilities . The first criterion that
applies to all Subtitle C facilities is that there can be no
relevant Violations at or affecting the receiving unit. As
discussed earlier, this determination must be based on an
inspection conducted no more than six months prior to receipt
of CERCLA waste.
A second element that applies to all Subtitle C facilities
is that there must be fl releases at receiving units. Releases
from receiving units, except for j minimis releases and State-
and Federally-permitted releases, must be eliminated and any
prior contamination from the release must be controlled by a
corrective action permit or order under Subtitle C, as
described in the next section.
The final criterion that applies to all Subtitle C
facilities, is that the facility must have undergone a RCRA
Facility Assessment (RPA) or equivalent facility—wide
investigation. This investigation addresses EPA’s affirmative
duty under CERC §121(d) (3) to determine that there are no
releases at the facility.
Releases of R RA hazardous waste or hazardous
constituents and CERCLA hazardous substances are all included
under the policy. While the RPA need not focus on identifying
releases of hazardous substances that are not RCRA hazardous
wastes or hazardous constituents, to the extent such releases
are discovered in an RPA or through other means, they will be
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considered the same as a release of hazardous waste or
hazardous constituents.
o Additional Criteria Applicable to RCRA Subtitle C Land
Disposal Facilities . Land disposal facilities must meet
additional requirements imposed by SARA and this policy. The
term “land disposal facility” means any RCRA facility at which
a land disposal unit is located, regardless of whether the land
disposal unit is the receiving unit. Land disposal units
include surface impoundments, landfills, land treatment units
and waste piles.
As stated earlier, there must be no releases at or from
receiving units. In addition, releases from other units at a
land disposal facility must be controlled under a corrective
action program. The RFA will help determine whether there is a
release. In addition, land disposal facilities must have
received a comprehensive ground-wa e monitoring evaluation
(CME) or an operation and maintenance (O&I4) inspection within
the last year.
Units at RCRA Subtitle C land disposal facilities
receiving CERCLA waste that is also R RA hazardous waste must
meet the RCRA minimum technology requirements of RCRA § 3004(0).
only where a facility has been granted a waiver can a land
disposal unit not meeting the minimum technology requirements
be considered acceptable for off-site disposal of CERCL waste
that is RCRA hazardous waste.
o Criteria APPlicable to Subtitle C Treatment and Storage
The criterion for controlling releases from other
units does not apply to all releases at treatment and storage
facilities, as it does at land disposal facilities. Releases
from other units at treatment and storage facilities must be
evaluated for envjro ental significance and their effect on
the satisfactory operation of the facility. If determined by
the respon.jbl. Agency to be environmentally significant,
release. must be controlled by a corrective action program
under an applicable authority. Releases from other units at
treatment and storage facilities determined not to be
environmentally aignificant do not affect the acceptability of
the facility for receipt of CERCL& waste.
2. Criteria ADnljcab le to R RA Permjt.bv- ule Facilities .
This revised policy is also applicable to facilities subject to
the R RA permit-by-rule provisions in 40 CFR 270.60. These
include ocean disposal barges or vessels, injection wells and
publicly owned treatment works (POTWe). Permit—by—rule
facilities receiving R RA hazardous waste must have a RCRA
permit or R RA interim status. R RA permit-by-rule facilities
must also receive an inspection for compliance with applicable
RCRA permit or interim status requirements. In addition, these
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facilities (arid other flon-RCRA facilities) Should be inspected
by the appropriate inspectors for other applicable laws.
In , except for POTWs (discussed below), these
facilities will be subject to the same requirements as RCRA
treatment and storage facilities. That is, there can be no
releases of hazardous waste, hazardous Constituents or
hazardous substances from receiving units. There also can be
no relevant violations at or affecting the receiving unit, as
confirmed by an inspection conducted no more than six months
prior to the receipt of CERCL waste. Releases from other
units determined by the responsible Agency to be
environmentally significant must be controlled by an
enforceable agreement under the applicable authority.
Criteria for discharge of wastevater from CERCLA sites to
POTWs can be found in a memorandum titled, “Discharge of
Wastewater from CERCLA Sites into POTWs,” dated April 15, 1986.
That memorandum requires an evaluation during the RI/Fs process
for the CERCLA site to consider such points as:
o the quantity and quality of the CERCL wastewater and
its compatibility with the POTW;
o the ability of the POTW to ensure compliance with
applicable pretreatment standards;
o the POTWS record of compliance with its NPDES permit;
and
o the potential for ground-water contamination from
transport to or impoundment of CERCLA wastevater at
the POTW.
Based on a consideration of these and other points listed in
the memorandum, the POTW may be deemed appropriate or
inappropriate for receipt of CERCLA waste.
3. Criteria A 1icab1e to Non-Subtitle C Facilities . In
some instances, it may be appropriate to use a non-Subtitle C
facility for off-site transfer: for example, PCB disposal is
regulated under the Toxic Substances Control Act (TSCA);
rionhazardous waste disposal is regulated under Subtitle D of
R RA and applicable State laws; and disposal of radionucljdes
is regulated under the Atomic Energy Act. At such facilities,
all releases are treated in the same manner as releases from
other units at Subtitle C treatment and storage facilities.
That is, the responsible Agency should make a determination as
to whether the release is environmentally significant and, if
so, the release should be controlled by a corrective action
program under the applicable Federal or State authority.
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Requirements for the disposal of PCBs are established in
40 CFR 761.60. Generally, these regulations require that
whenever disposal of PC8s is undertaken, they must be
incinerated, unless the concentrations are less than 50 ppm.
If the concentrations are between 50 and 500 ppm, the rule
provides for certain exceptions that provide alternatives to
the incineration requirements. The principal alternative is
disposal in a TSCA-permitted landfill for PCBs. If a TSCA
landf ill is the receiving unit for PCBs, then that facility is
subject to the same criteria applicable if a RCRA land disposal
unit is the receiving unit; i.e., no relevant violations, no
releases at the receiving unit and controlled releases at other
units. PCBs at levels less than 50 ppm may be transported to
acceptable Subtitle D facilities as discussed previously.
V. IMPLEMENTATION
A. Determining AcceDtabjljty
Acceptability determinations under the off-site policy
will be made by EPA or by States authorized for corrective
action under §3004(u) of RcRA. Where States have such
authority, the State may make acceptability determinations for
facilities in the State in consultation with EPA. Regardless
of a State’s authorization status, the Region and States should
establish, in the Superfund Memorandum of Agreement, mechanisms
to ensure timely exchange of information, notification of
facilities and coordination of activities related to the
acceptability of facilities and potential selection of
facilities for off—site transfer. The Regions and States also
need to establish or enhance coordination mechanisms with their
respective RCRA program staffs in order to ensure timely
receipt of information on inspections, violations and releases.
These agreements can be embodied in State authorization
Memoranda of Agreement, State grant agreements, or State-EPA
enforcement agreements.
The responsible government official in the Region or State
in which a hazardous waste facility is located will determine
whether the facility has relevant violations or releases which
may preclude its use for off-site transfer of CERCLA wastes.
Each Region and State should have a designated off-site
coordinator responsible for ensuring effective counication
between CERCL& response program staff and RCRA enforcement
staff within the Regional Offices, with States, and with other
Regions and States.
The off-site coordinator should maintain a file of all
information on the compliance and release status of each
commercial facility in the Region or State. This information
should be updated based on the results of State- or
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EPA-conducted compliance inspections or other information on
these facilities.
CERCLA response program staff should identify potential
off—site facilities early in the removal action or the remedial
design process and check with the appropriate Regional and/or
State off-site coordinator(s) regarding the acceptability
status of the facilities. If one or more facilities is
identified that has not received an inspection within the last
six months, the Regional off—site coordinator(s) should arrange
to have such inspection(s) conducted within a timeframe
dictated by the project schedule. The CERCLAI REM/FIT
contractor may conduct the inspection under the direction of
the Deputy Project Officer. If contractor personnel are used,
the Region should ensure that such personnel are adequately
trained to conduct the inspections.
Responsible Agencies should base their acceptability
determinations on an evaluation of a facility’s compliance
status and, as appropriate, whether the facility has releases
or other environmental conditions that affect the satisfactory
operation of the facility. States not authorized for HSWA
corrective action may assist EPA in making the acceptability
determination by determining a facility’s compliance status
(based on a State inspection) and providing this information to
EPA. Regions and States should use the following types of
information to make acceptability determinations:
o State- or EPA-conducted inspections . EPA will
continue to assign high priority to conducting
inspections at commercial land disposal, treatment
and storage facilities. Facilities designated to
receive CERCL waste must be inspected within six
months of the planned receipt of the waste. In
- addition, land disposal facilities must have received
a comprehensive ground—water monitoring inspection
(CXE) or an operation and maintenance (O&M)
inspection within the last year, in accordance with
the timeframes specified in the RCRA Implementation
Plan (RIP).
o RCRA Facility Assessments (RFAs • To be eligible
under this policy, a RCRA Subtitle C facility must
have had an RPA or equivalent facility-wide
investigation. The RFA or its equivalent must be
designed to identify existing and potential releases
of hazardous waste and hazardous constituents from
solid waste management units at the facility.
o Other data sources . Other documents such as the
facility’s permit application, permit, Ground Water
Task Force report, ground—water monitoring data or
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ground—water assessment report can contain
information on violations, releases or other
conditions. Relevant information from these
documents should also be used to determine a
facility’s acceptability to receive waste under the
off—site policy.
B. Notice Procedures
EPA expects that Regions and States will take timely and
appropriate enforcement action on determining that a violation
has occurred. Where a responsible Agency performs an
inspection that identifies a M fl violation at a commercial
facility likely to accept CERCLA wastes, within five working
days of the violation determination, the responsible Agency
must provide written notice to the facility of the violation
and the effects of applying this policy. States not authorized
for HSWA corrective action should inform EPA of the violation
so that EPA can notify the facility of the effect of the
violation under this policy. (See RCRA Enforcement Response
Policy for a discussion of appropriate enforcement responses
and timeframes for Class I violations.)
When the responsible Agency determines that a relevant
release has occurred, or that relevant conditions exist, the
responsible Agency must notify the facility in writing within
five working days of that determination. The notice must also
state the effect of the determination under this policy. A
copy of any notice must also be provided to the non—issuing
Region or State in which the facility is located. States not
authorized for HSWA corrective action should provide EPA with
information on releases so that EPA can determine whether a
relevant release has occurred.
Private parties conducting a response action subject to
this policy will need to obtain information on the
acceptability of commercial facilities. The responsible Agency
must respond with respect to both pre-SARA and post—SARA
wastes. In addition, the responsible Agency should indicate
whether the facility is currently undergoing a review of
acceptability and the date the review is expected to be
completed. No enforcement sensitive or predecisional
information should be released.
A facility may submit a bid for receipt of CERCLA waste
during a period of unacceptability. However, a facility must
be acceptable in order to be awarded a contract for receipt of
CERCLA waste.
Scone and Contents of the Notice . The responsible Agency
must send the notice to the facility owner/operator by
certified and first-class mail, return receipt requested. The
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certified notice, if not acknowledged by the receipt return
card, will be considered to have been received by the addressee
if properly sent by first-class mail to the last address known
to the responsible Agency. The notice should contain the
following:
o A finding that the facility may have conditions that
render it unacceptable for receipt of off-site waste,
based upon available information from an RFA, an
inspection, or other data sources;
o A description of the specific acts, omissions or
conditions that form the basis of the findings;
o Notice that the facility owner/operator has the
opportunity to request an informal conference with
the responsible government official to discuss the
basis for the facility’s unacceptability
determination under this revised policy, provided
that such a request is made within 10 calendar days
from the date of the notice. The owner/operator may
submit written comments within 30 calendar days from
the date of the notice in lieu of holding the
conference.
o Notice that failure to request an informal meeting or
submit written comments will result in rio further
consideration of the determination by the responsible
Agency during the 60 calendar days after issuance of
the notice. The responsible Agency will cease any
transport of CERCLA waste to the facility on the 60th
calendar day after issuance of the notice.
o Notice that the owner/operator may request, within 10
calendar days of hearing from the responsible
government official after the informal conference or
the submittal of written comments, a reconsideration
of the determination by the Regional Administrator or
appropriate State official. The Regional
Administrator or State official may agree to review
th. determination at his or her discretion; and
o Notice that such a review by the Regional
Administrator or appropriate State official, if
agreed to, will be conducted within 60 calendar days
of the initial notice, if possible, but that the
review will not stay the determination.
The facility may continue to receive CERCL& waste for 60
calendar days after issuance of the initial notice. As
indicated above, facility owners or operators may request an
informal conference with the responsible government official
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within 10 calendar days from the date of issuance of the
notice, to discuss the basis for a violation or release
determination and its relevance to the facility’s acceptability
to receive CERCLA wastes. Any such meeting should take place
within 30 calendar days of the date the initial notice is
issued. If unacceptability is based on a State inspection or
enforcement action, a representative of the State should attend
the meeting. If the State does not attend, EPA will notify the
State of the outcome of the meeting. The owner/opeator may
submit written comments within 30 calendar days from the date
of the notice in lieu of holding the conference. If the
responsible Agency does not find that the information submitted
at the informal conference or in comments is sufficient to
support a finding of acceptability to receive CERCLA wastes, it
should so inform the facility orally or in writing.
Within 10 calendar days of hearing from the responsible
government official after the informal conference or the
submittal of written comments, the facility owner or operator
may request a reconsideration of the determination by the
Regional Administrator or appropriate State official. The
Regional Administrator OV appropriate State official may use
his or her discretion in deciding whether to conduct a review
of the determination. Such a review, if granted, should be
conducted within the 60 day period (originating with the
notice) to the extent possible. The review will not stay the
determination.
The RPM, OSC or equivalent site manager must stop transfer
of waste to a facility on the 60th calendar day after issuance
of a notice. The facility then remains unacceptable until such
time as the responsible Agency notifies the owner or operator
otherwise. The off-site coordinator and the OSC/RPM should
maintain close coordination throughout the 60-day period.
In limited cases, the responsible Agency may use its
discretion to extend the 60 day period if it requires more time
to review a submission. The facility should be notified of any
extension, and it remains acceptable during any extension.
Thu responsible Agency may also use its discretion to
determine that a facility’s unacceptability is immediately
effective upon receipt of a notice to that effect. This may
occur in situations such as, but not limited to, emergencies
(e.g., fire or explosion) or egregious violations (e.g.,
criminal violations or chronic recalcitrance) or other
situations that render the facility incapable of safely
handling CERCTA waste.
Implementation of this notice provision does not relieve
the Regions or States from taking appropriate enforcement
action under R RA or CERCLPi.
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C. Procedures for Facilities with Outstandina trnacceDtability
Determinations
tinder the original May 1985 off-site policy, facilities
determined to be unacceptable to receive CERCLA wastes were
provided with written notice and were generally afforded
informal opportunities to comment on the determination (the
latter step was not required by the policy). Although the
Agency believes that these steps represented adequate
procedural safeguards for facilities seeking to receive CERCLA
wastes, EPA has decided to provide an additional opportunity
for review, in light of this revised policy, for facilities
with unacceptability determinations already in place on the
effective date of the revised policy.
Any such facility that wishes to meet with the responsible
Agency to discuss the basis for a violation or release
determination and its relevance-to the facility’s ability to
receive CERCLA wastes, may request an informal conference with
or submit written comments to the responsible Agency at any
point up to the 60th day after the publication of the proposed
rule on the off-site policy in the R g.ia t . SUCh a
meeting should take place within 30 calendar days of the
request. If the responsible government Agency does not find
the information presented to be sufficient to support a finding
of acceptability to receive CERCLA wastes, then it should
inform the facility orally or in Writing that the
unacceptability determination will continue to be in force.
The facility may, within 10 calendar days of hearing from the
responsible government official after the informal conference
or submittal of written comments, petition the EPA Regional
Administrator or appropriate State official for
reconsideration. The Regional Administrator or State official
may use his or her discretion in deciding whether to grant
reconsideration.
These procedures for review of unacceptability
determinations that were already in place on the effective date
of this revised policy will not act to stay the effect of the
underlying unacceptability determinations during the period of
review.
D. Re-evaluating Unacceptability
An unacceptable facility can be reconsidered for
management of CERCLA wastes whenever the responsible Agency
finds that the facility meets the criteria described in the
“Acceptability Criteria” section of this policy.
For the purposes of this policy, releases will be
considered controlled upon issuance of an order or permit that
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initiates and requires completion of one or more of the
following: a facility-wide RCRA Facility Investigation (RFI);
a Corrective Measures Study (c145); or Corrective Measures
Implementation (CMI). The facility must comply with the permit
or order to remain acceptable to receive CERCLA waste. At the
completion of any such phase of the corrective action process,
the responsible Agency should again review the facility for
acceptability under the off—site policy using the criteria
listed in this document, and as necessary and appropriate, make
new acceptability determinations, and issue additional orders
or modify permit conditions to control identified releases.
Releases that require a determination of environmental
significance will, be considered controlled upon issuance of an
order or permit to conduct an RFI, cxs or cxi, or upon
completion of an RFI which concludes that the release is not
environmentally significant. Again, the facility must comply
with the permit or order to remain acceptable to receive CERCLA
waste.
If the facility is determined to be unacceptable as a
result of relevant violations at or affecting the receiving
unit, the State (if it made the initial determination) or EPA
must determine that the receiving unit is in full physical
compliance with all applicable requirements. Where a State fb i
authorized for HSWA corrective action makes this determination,
it should notify EPA immediately of the facility’s return to
compliance, so that the Agency can expeditiously inform the
facility that it is once again acceptable to receive c cx
wastes.
The responsible Agency will notify the facility of its
return to acceptability by certified and first-class mail,
return receipt requested.
E. Im lementptjpn Procedures
All remedial decision documents must discuss compliance
with thi. policy for alternatives involving off-site management
of CERCIA wastes. Decision documents for removal actions also
should include such a discussion.
Provisions requiring compliance with this policy should be
included in all contracts for response action, Cooperative
Agreements with States undertaking Superfund response actions,
and enforcement agreements. For ongoing projects, these
provisions will, be implemented as follows, taking into
consideration the differences in applicabl, requirements for
pre— and post-sAp, , decision documents:
o RI/FS : The Regions shall immediately notify Agency
contractors and States that alternatives for off-site
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management of wastes must be evaluated against the
provisions of this policy.
o Remedial Design : The Regions shall immediately
notify Agency contractors, the States, and the U.S.
Army Corps of Engineers that all remedies that
include off—site disposal of CERCLA waste must comply
with the provisions of this policy.
o Remedial Actiojp The Regions shall immediately
assess the status of compliance, releases and other
environmental Conditions at facilities receiving
CERCLA waste from ongoing projects. If a facility is
found not to be acceptable, the responsible Agency
should notify the facility of its unacceptability
o Enforcement : Cleanups by responsible parties under
enforcement actions currently under negotiation and
all future actions must comply with this policy.
Existing agreements need not be amended. However,
EPA reserves the right to apply these procedures to
existing agreements, to the extent it is consistent
with the release and reopener clauses in the
settlement agreement.
If the response action is proceeding under a Federal lead,
the Regions should work with the Corps of Engineers or EPA
Contracts Officer to negotiate a contracts modification to an
existing contract, if necessary. If the response action is
proceeding under a State lead, the Regions should amend the
Cooperative Agreement.
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Transmission of Guidance for
Conducting Federal-Lead Underground
Storage Tank Corrective Actions
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Ios, dp,
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
t
JUL25 ::“
occICE or
SOLID WASTE AND EMERGENCY RESPOP
OSWE1 DIRECTIVE 9360.O—16A
MEMORANDUM
SUBJECT: Transmission of Guidance for Conducting Federal—Lead
Underground Storage Tan orrective Actions
FROM:
TO: U Regional Administrators
Re ions I-X
ATTN: Regional Waste Management Division Directors
Regions I—X
Attached is the final guidance for removal program personnel conducting
Federal-lead corrective actions for petroleum leaks from underground storage
tanks (USTs). This guidance super sedes the interim guidance of June 4, 1987
(OSWER directive # 9 360 .Ori 6 ). Based on convnents offered by reviewers,
changes have been made to clarify definitions and procedures throughout the
guidance. A. separate guidance is under development regarding corrective
actions on Indian lands.
In response to comments, further emphasis has been placed on the
responsibility of State governments to conduct responses in non-emergency
situations and enforcement activities. In several places, the guidance now
stresses EPA policy requiring the State to perform any remedial action after
the Federal response stabilizes a situation. The role of the Regional UST
Coordinator in the process of implementing and overseeing Federal—lead UST
corrective actions has been greatly increased. Finally, specific emphasis
has been placed on the necessity for contacting owners or operators before
initiating corrective action.
If there are any questions regarding this guidance, please contact
Elizabeth Zeller at FTS 382—7735.
Attachment
cc: Superfund Branch Chiefs, Regions I-X
Henry Longest
Ron Brand
I.
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OSW DIR TIVE 936 O.O-16A
GUIDANCE FOR CONDUCTING FEDERL-L
UNDERGROUND STORAGE TANE CORRECTIVE ACTIONS
June, 1988
Prepared by the Emergency Response Division
Office of Emergency and Remedial Response
4
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The policies and procedures established in this
document are intended solely for the guidance of
government personnel. They are not intended, and cannot
be relied upon to create any rights, substantive or
procedural, enforceable by any party in litigation with
the United States. The Agency reserves the right to act
at variance with these policies and procedures and to
change them at any time without public notice.
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TABLE OF CONTENTS
1 . 0 Introduction. • • • • • • • • • • • • • • • • • • • • • • • • • . . . . . . .
1.1 Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Background...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1 • 3 Policy. . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.4 Definitions... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . • • .2
2.0 CriteriaforCorrectiveAction....................., , 4
2.1 Legislative Standards and Criteria................,4
2 • 2 EPA Criteria. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • 5
3 • 0 Fund Utilization. . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . 6
3 • 1 Eligible Activities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3 . 2 State Cost Share. . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . 6
4 . 0 Approval Process . . . . . . . . . . . . . . . . . . . . . 7
4.1 Delegation of Authorities... . ..... ... . .7
4.2 OralRequestfromState... ......8
4.3 WrittenRequestfromState .. .........i.o
4 • 4 Regional UST Coordinator/Enforcement. ...... ... .. . .11
5 • 0 Accounting Information. . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . 13
6.0 Initiation of On—SiteActions.........................l4
6.1 Procuring Cleanup Services........ ... . . . .. . .. . .. . .14
6.2 Procuring Technical Assistance...... . .. ... . .14
6.3 Assistance fromOtherAgencies.............. ......i5
6.4 Stabilization Standards........ ..... . ..... . ..... . .16
7.0 Managing Federal—Lead UST Corrective Actions...........17
7.1 Oversight of Contractors....... .. . .. . .. ... ... .. . . .17
7 • 2 Allowable Costs. . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.3 Non—Allowable Costs... . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
7.4 Cost Management ... ......... .. . . .. ... .. . . ....20
7.5 Ceiling Increases/Scope Modifications........ . .. . .22
7.6 Access Agreements..... . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
7.7 Worker and Visitor Health and Site Safety.........25
7.8 Community Relations and Public Information........26
7.9 Record—Keeping Requirements. .. . .. ... . ...... . .27
7.10 Reporting Requirements.... ..... ...... . .. . . . . .28
7.11 Post—Corrective Action Control. .... ... ... ..30
ADmendicel
A. Delegations
B. Oral Request Information Outline
C. State Request Letter Format
D. Action Memorandum Format
E. Ceiling Increase Request Format
F. Federal—Lead UST Corrective Action Accident Report Format
G. Delivery Order Preparation and Processing
H. Technical Direction Document Preparation and Processing
I. Interim Financial Procedures Governing Use of the LUST Trust F”
4.
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1.0 INTRODUCTION
1.1 Purpose
This guidance document is designed to provide direction to
On-Scene Coordinators (OSCs), other removal program personnel,
and Regional Underground Storage Tank (UST) Coordinators for the
initiation and continuation of Federal-lead corrective actions in
response to petroleum releases from leaking underground storage
tanks. The guidance presents procedures to be followed,
including required justifications and the documentation necessary
for undertaking a Federal—lead UST corrective action. A separate
guidance document is being developed for corrective actions on
Indian lands.
1.2 Background
The Superfund Amendments and Reauthorization Act of 1986
(SARA) amends Subtitle I of the Solid Waste Disposal Act (SWDA)
to provide the authority for Federal response to petroleum
releases from leaking USTs. The amendments also establish a $500
million Leaking Underground Storage Tank (LUST) Trust Fund to
finance both Federal and State UST program activities. Federal—
lead UST corrective actions will be performed by the same EPA
emergency response and contractor personnel that conduct oil and
hazardous substance removal actions.
Note: As used in this guidance, “SWDA” refers to the Solid Waste
Disposal Act as amended by any other legislation, including
SARA, the Resource Conservation and Recovery Act of 1976
(RCRA), and the Hazardous and Solid Waste Amendments of 1984
(HS WA)
1.3 Policy
It is EPA’s policy that LUST Trust Fund-financed responses
at petroleum releases from underground storage tanks will be
conducted by States under cooperative agreement with EPA, except
in rare circumstances. Most States will have broad cooperative
agreements to address emergency response and to perform cleanups;
in the absence of such agreements, the Region and State are
encouraged to develop site—specific cooperative agreements, under
which the State will conduct corrective actions at individual
sites. EPA will undertake a corrective action only in instances
where there is a major public health or environmental emergency,
and the State is unable to respond. In addition, the State must
demonstrate that it has contacted or attempted to contact owners
or operators, and the State is convinced that owners or operators
are unable or unwilling to provide adequate, timely response.
Federal—lead corrective action will be limited to stabilization
of the immediate situation, with the expectation that further
cleanup will be performed by the State under an appropriate
cooperative agreement.
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1.4 Definitions
Fot the purposes of this guidance, the following definitions
apply:
ExDosure Assessment — As defined in Section 9003(h) (10) of SWDA,
“the term exposure assessment’ means an assessment to determine
the extent of exposure of, or potential for exposure of,
individuals to petroleum from a release from an underground
storage tank based on such factors as the nature and extent of
contamination and the existence of or potential for pathways of
human exposure (including ground or surface water contamination,
air emissions, and food chain contamination), the size of the
community within the likely pathways of exposure, and the
comparison of expected human exposure levels to the short—term
and long—term health effects associated with identified
contaminants and any available recommended exposure or tolerance
limits for such contaminants. Such assessment shall not delay
corrective action to abate immediate hazards or reduce exposure.”
Malor Public Health or Environmental Emeraency — To qualify for
Federal response action, an UST site must be deemed a major
public health or environmental emergency. (This definition is
more strict than that for current hazardous substance removal
actions and is intended to significantly limit the number of
Federal-lead UST responses, so that only health or environmental
emergencies are addressed). Such an emergency exists if the
following criteria are met:
o The release poses an immediate and substantial threat
of direct human, animal, or food chain exposure to
petroleum; or
o The release poses an immediate threat of fire and/or
explosion: or
o The release poses an immediate and substantial threat
to public drinking water supplies; or
o The release poses an immediate threat to human health
or substantial amounts of property, or poses an
immediate and substantial threat to natural resources.
Petroleum — As defined in Section 9001(8) of SWDA, “the term
‘petroleum’ means petroleum, including crude oil or any fraction
thereof which is liquid at standard conditions of temperature and
pressure (60 degrees Fahrenheit and 14.7 pounds per square inch
absolute).” This term includes, but is not limited to, gasoline,
diesel fuel, and jet fuel.
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Underaround Storaae Tank — As’ defined in Section 9001(1) of SWDA,
“the term underground storage tank’ means any one or combination
of tanká (including underground pipes connected thereto) which is
used ‘to contain an accumulation of regulated substances, and the
volume of which (including the volume of the underground pipes
connected thereto) is 10 per centwn or more beneath the surface
of the ground. Such term does not include any:
A) Farm or residential tank of 1,100 gallons or less
capacity used for storing motor fuel for noncoarcial
purposes,
B) Tank used for storing heating oil for consumptive use
on the premises where stored,
C) Septic tank,
D) Pipeline faci] ity (including gathering lines) regulated
under —
i) the Natural Gas Pipeline Safety Act of 1968
(49 U.S.C. App. 1671, et seq.),
ii) the Hazardous Liquid Pipeline Safety Act of
1979 (49 U.S.C. App. 2001, et seq.), or
iii) which is an intrastate pipeline facility
regulated under State laws comparable to the
provisions of law referred to in clause (i)
or (ii) of this subparagraph,
E) Surface impoundment, pit, pond, or lagoon,
F) Storm water or waste water collection system,
C) Flow—through process tank,
H) Liquid trap or associated gathering lines directly
related to oil or gas production and gathering
operations, or
I) Storage tank situated in an underground area (such as a
basement, cellar, mineworking, drift, shaft, or tunnel)
if the storage tank is situated upon or above the
surface of the floor.
The term underground storage tank’ shall not include any
pipes connected to any tank which is described in subparagraphs
(A) through (I).”
Final clarification of these terms and definitions will be
found in the regulations (and preamble) for underground storage
tanks, scheduled for publication later in 1988.
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2.0 CRITERIA FOR CORRECTIVE ACTION
2.1 L. islative Standards and Criteria
Thi. guidance is designed to provide direction for
undertaking Federal—lead corrective action at petroleum leaks
from underground storage tanks. The basic criteria for a Federal
response are found in Section 9003 of the amended SWDA;
Subsection (C) specifies the release detection, prevention, and
correction requirements for USTs to be promulgated by EPA, and
Subsection (h) provides two sets of criteria for Federal—lead UST
responses. -
Before the effective date of the regulations promulgated
under Section 9003(c) of SWDA, a corrective action may be
undertaken if the Administrator (or State under cooperative
agreement) deems it necessary to protect human health and the
environment, as authorized in Section 9003(h) (1) of SWDA. The
EPA (or the responding State) must give priority to sites where
no owner or operator is able to undertake proper corrective
action, and to UST releases posing the greatest threat to human
health and the environment.
After the regulations become effective, a response may be
conducted only if corrective action is necessary to protect human
health and the environment and one or more of the following
criteria, presented in Section 9003 (Ii) (2) of SWDA, are met:
o No financially solvent tank owner or operator, capable
of carrying out proper corrective action, is found;
o The situatioh requires prompt action to protect human
he lth and the environment;
o Corrective action costs exceed the financial
responsibility requirements established for the tank,
and expenditures from the LUST Trust Fund are necessary
to ensure effective action; or
o The tank owner or operator has failed, or refused, to
comply with an administrative order to perform
correct ive action.
Priority must be given to releases posing the greatest threat to
human health and the environment.
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2.2 EPA Criteria
I.n’addition to the basic policy guidelines discusse4 in
Section 1.3, and the legislative restrictions presented in
Section 2.1, EPA will undertake Corrective action only if a major
public health or environmental emergency exists, as defined in
Section 1.4.
EPA will take only those corrective actions that stabilize
the emergency situation, allowing State or other responders to
implement permanent cleanup remedies. If EPA’s mitigative
measures require continuing post-cotrective action control
(operations and maintenance), the affected State will be
responsible for these measures as soon as possible.
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3.0 FUND UTILIZATION
I& accordance with SWDA Section 9003 (h), the statute that
describes Federal response under the LUST Trust Fund, and in
compliance with EPA policy for Federal-lead actions, the general
activities listed in Section 3.1 may be conducted with Fund
monies. See Sections 7.2 and 7.3 for more detail on allowable
and non—allowable costs related to performing corrective actions.
3.1 Eligible Activities
o Site investigations or ex osure assessments (see
Section 1.4) to determine potential health effects of a
leak, and to establish corrective action priorities.
o Corrective actions such as stabilization of the site,
temporary relocation of affected residents, or
provision of alternate household water supplies.
o Enforcement activities (see Section 4.4) including
development, implementation, and oversight of
enforcement orders directed to responsible tank
owners/operators.
o Cost recovery activities to seek reimbursement of LUST
Trust Fund expenditures from liable parties.
3.2 State Cost Share
Until EPA’s final regulations for release detection,
prevention, and correction become effective later in 1988, there
is no requirement for States to cost share or match Trust Fund
monies. Affer the effective date of the regulations, States must
pay a 10 percent share of the cost of LUST Trust Fund corrective
actions, as required by Section 9003(h) (7) (8) of SWDA. However,
failure to pay this required cost share will not prevent EPA from
conducting a response if immediate action is necessary to
mitigate an imminent and substantial endangerment to human health
or the environment.
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4.0 APPROVAL PROCESS
Federal-lead UST corrective actions may be approved only if
the definitions and criteria outlined in Sections 1.0 and 2.0 are
met. In particular, the site must pose a major public health or
environmental emergency to which the owner or operator or the
State is unable to respond in an adequate and timely manner. In
addition, no Federal-lead corrective action vii ]. be conducted
unless an appropriate request is received from a State.
The Federal-lead UST delegations of authority, as well as
two approval processes (based on response time considerations),
are presented below.
4.1 Delegation of Authorities
All obligations for Federal-lead UST corrective actions
(with limited exceptions for emergency situations, as noted below
in section 4.1.1) must be approved by the Assistant Administrator
(AA), Office of Solid Waste and Emergency Response (OSWER), as
provided by Delegation 8-33 (see Appendix A). This authority may
be redelegated to the Office Director (OD), Office of Emergency
and Remedial Response (OERR). If redelegated, the OD, OERR, must
obtain the concurrence of the OD, Office of Underground Storage
Tanks (OUST).
4.1.1 In accordance with Delegation 8—33, Regional
Administrators (RAs) may approve emergency obligations for
Federal-lead UST corrective actions of up to $50,000 per
site. This authority may be be used only
1) during non-dilty hours (after 5:00 p.m. EST (local time
in Washington, D.C.] on weekdays, or on Saturday, Sunday, or
federal holidays), or if the situation precludes contacting
Headquarters prior to initiating necessary response actions,
and
2) if there is risk of death, injury, or catastrophic
environmental damage, due to a petroleum release from an
UST. Such an emergency would be posed by imminent or actual
events such as:
o Fire and/or explosion; or
o Substantial or irreversible damage to a
sensitive ecosystem or significant natural resource.
RAs may redelegate this limited authority to the Division
Director and OSC level, as provided in Delegation 8-33. If
redelegated, the OSC’s $50,000 authority is included in the RA’s
$50,000 authority; it is not in addition to that authority. This
authority may be used to initiate response, and may be used to
initiate project restarts should new and unforeseen emergency
conditions occur which meet the above criteria. This authority
cannot be used for continuations of work in progress. The costs
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that are applied toward the RA’s authority to obligate funds up
to $50,000, and the costs that are excluded from this limit, are
similarto those defined in EPA’S Su erfund Removal Procedures —-
Revision Number Three .
4.2 Oral Request from State
When the response time demands of the situation preclude
implementing the formal written approval process described below
in Section 4.3, the following oral approval process may be
implemented. -
4.2.1 The State evaluates the site and gathers all.
the necessary information to support an oral request (see
Appendix B). The State UST Coordinator orally transmits the
request and information to the Regional Oil and Hazardous
Materials (OHM) Coordinator, or other designated Regional
management official.
4.2.2 The assigned OSC consults with the Regional UST
Coordinator, where possible (see Section 4.4).
4.2.3 The OSC (jointly with the Regional UST
Coordinator, where possible) determines if the criteria for
corrective action discussed in Section 2.0 are met, and if
an immediate response (within hours or days) is necessary.
If so, the following approval process is implemented.
4.2.4 Approval process for corrective action
4.2.4.1 During regular working hours:
a) The OSC or other Regional official, after
consultation with the Regional UST
Coordinator, notifies the appropriate
Headquarters Emergency Response Division
(ERD) Regional Coordinator of the Region’s
intent to request oral approval from
Headquarters to initiate an UST corrective
action (phone # 8—382—2188, Magnafax # 755—
2155, TWX # 710—822—9269,
E—mail # EPA 5511).
b) The OSC gets oral approval from the RA
or delegatee.
C) The OSC or other Regional official
provides the information set forth in
Appendix B to Headquarters.
d) The ERD Regional Coordinator reviews and
processes the request, and relays the request
and a recommendation for approval/denial to
the appropriate Headquarters official.
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e) The ERD Regional Coordinator communicates
the decision and the appropriate accounting
information (see Section 5.0) to the OsC or
other Regional official as quickly as
possible, and confirms the decision in
writing by the end of the next work day. The
osc must notify the Regional UST Coordinator
of the decision.
f) The RA transmits a formal action memorandum
(see Appendix D), along with a formal State
request letter (see Appendix C) to ERD within
10 days.
4.2.4.2 During non—duty hours (after 5:00 p.m. EST on
weekdays, on Saturday, Sunday, and holidays), or if the
situation precludes contacting Headquarters prior to
initiating necessary response actions:
a) The OSC obtains oral approval from the RA, or
from his/her delegatee (see Section 4.1, or
Appendix A). This authority may only be used
to obligate funds up to $50,000, for
corrective actions which meet the criteria in
section 4.1.1.
b) The OSC notifies the Regional UST Coordinator
(see Section 4.4) and ERD Regional
Coordinator of this action as soon as
possible.
C) The RA transmits a formal action memorandum
(see Appendix D), along with a State request
letter (see Appendix C) to ERD within 10
working days. A ceiling increase request
(see Appendix E) may be incorporated within
this memorandum, if needed.
4.2.4.3 During non—duty hours, if a ceiling greater
than $50K is needed:
a) The OSC telephones the National Response
Center (NRC), 800—424—8802, identifies himself!
herself, and asks to be put in contact with
the ERD Duty Officer.
b) The NRC contacts the ERD Duty Officer.
C) The ERD Duty Officer contacts the OSC and
asks for the information contained in Appendix
E. The ERD Duty Officer notifies the
supervisory duty officer, the OD/OERR, the
OD/OUST, and the AA/OSWER (if appropriate),
who approves or denies the request.
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d) The ERD Duty Officer communicates the
decision to the OSC as quickly as possible,
and confirms the decision in writing by
the end of the next work day.
a) The RA sends a formal action memorandum
(see Appendix D) along with the State request
letter (see Appendix C) to ERD within 10 days.
4.3 Written Request from State
This approval process must be used whenever response time
demands allow. Typically, this will mean that Federal response
can be delayed for several days.
4.3.1 Receive written request from State
The affected State shall perform a thorough site
evaluation to clearly determine the extent of release,
source, substance(s) released, and threats posed by the
release. The State shall also make every reasonable attempt
to locate owners or operators and compel corrective actions.
The State must then prepare a formal written request for
Federal—lead TJST corrective action that presents all of the
pertinent site information, using the State request letter
format in Appendix C. The request letter should be sent to
the Regional OHM Coordinator, or other designated Regional
management official, from the Director of the State UST
agency designated by the Governor of the affected State.
4.3.2 Notify Regional UST Coordinator
Wb n a letter requesting UST corrective action is
received from the State, the Regional UST Coordinator must
be consulted and provided a copy of the letter (see Section 4.4).
4.3.3 Evaluate State request
The OSC and Regional UST Coordinator jointly
evaluate the State request to determine whether:
o Additional information is required. If the
request letter (see Appendix C) is deficient, the
Region should contact the State and obtain
additional information, or instruct the State to
resubmit the request letter incorporating the
Region’s comments. If necessary, the OSC may
perform a perfunctory site inspection to gather
needed data.
o Federal’-lead UST corrective action is not
justified. If the situation does not meet the
criteria discussed in Section 2.0, the OSC and the
Regional UST Coordinator must recommend to the OHM
Coordinator that the request be denied.
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0 Federal-lead UST corrective action is justified.
If the situation appears to meet the criteria
discussed in Section 2.0, the following approval
procedures should be implemented.
4.3.4 Regional role
The OSC notifies the appropriate ERD Regional
Coordinator of the Region’s intent to request Headquarters’
approval to initiate a Federal—lead UST corrective action
(phone # 8—382—2188, Magnafax 755—2155, E—mail I EPA 5511,
TWX 1 710—822—9269). The OSC should also forward a copy of
the State request letter, or a draft copy of the action
memorandum to allow the ERD Regional Coordinator to expedite
the Headquarters approval process.
The OSC should provide the information set forth in the
State request letter (see Appendix C) by submitting an
action memorandum, using the format presented in Appendix D.
The action memorandum must he signed by the RA and addressed
to the AA, OSWER through the 00, OERR, to the attention of
the Director, ERD.
4.3.5 Headquarters role
The ERD Regional Coordinator reviews the action
memorandum, gets concurrences from other offices as
necessary (e.g., OUST, OGC), and sends it with a
recommendation for approval/denial to the appropriate
Headquarters official for final determination and signature.
The ERD Regional Coordinator then communicates the
OSWER decision to the Region as quickly as possible, along
with the appropriate accounting information (see Section
5.0). Written confirmation of the decision is forwarded to
the OSC and the Regional UST Coordinator as soon as
practicable.
4.4 Regional UST Coordinator/Enforcement
The Regional UST Coordinator is a Regionally-designated
employee who acts as a liaison between emergency response
personnel and Regional UST program management. The Regional UST
Coordinator may have information about a specific site, the
status of a State’s TJST program, and the State’s eligibility for
a cooperative agreement under the LUST Trust Fund, that could
prove useful in weighing the State’s response capabilities
against the characteristics and magnitude of an UST emergency.
The Regional UST Coordinator should be informed as soon as
possible whenever the Region receives a State request for
Federal—lead UST corrective action; whenever practicable, the
Regional UST Coordinator, together with the OSC, should evaluate
the appropriateness of Federal-lead corrective action prior to
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seeking approval. The OSC should keep the Regional UST
Coordinator informed of all significant events during Federal-
lead UST corrective actions.
States, under cooperative agreements, will be expected to
initiate and pursue enforcement action. The Regional UST
coordinator is responsible for coordinating with affected
State agencies, particularly in identifying owners or operators
and pursuing enforcement actions. EPA has the authority to issue
several different types of administrative orders under SWDA:
Section 9005 warning letters can be issued to compel tank testing
and investigation to detect suspected leaks; Section 9003(h)
orders can be issued to require site assessment, development of a
response plan, and implementation of corrective action pursuant
to the EPA—approved plan: and Section 9006(a) orders can be
issued to enforce compliance with a previous order. States are
expected to have or develop similar enforcement authorities.
Enforcement efforts to secure response from owners or operators
must not delay Federal—lead corrective action if site conditions
meet the criteria in Section 4.1.1 of this guidance.
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5.0 ACCOUNTING INFORMATION
The LUST Trust Fund appropriation number is 68-20X8153; the
program element is FPYV2B. For all actions given prior
Headquarters approval, account and Document Control numbers will.
be issued to the ERD Regional Coordinator by the Headquarters
Financial and Administrative Management Support Staff (FANS).
The ERD Regional Coordinator will then inform the OSC of the
assigned numbers.
Each Region has approval authority up to $50,000 per site to
use in responding to certain UST emergencies (see Section 4.1.1
for more detail). For actions initiated by the Region using its
$50,000 authority, account and Document Control numbers should be
issued by the Regional Financial Management Officer.
Detailed information describing Trust Fund appropriation,
account number structure, activity codes, and other relevant
matters has been issued by the Comptroller General to
all Financial Management Officers in Comptroller Policy
Announcement Number 87—13, “Interim Financial Policies and
Procedures Governing Use of the Leaking Underground Storage Tank
(LUST) Trust Fund” (see Appendix I).
The Policy Announcement establishes policies and procedures
for use of the Fund by EPA and State governments. Each site will
be assigned a ten-digit account number in the Financial
Management System (FMS), which enables tracking of site-specific
costs for cost management and cost recovery purposes. The Policy
Announcement details methods of charging time and other direct
costs to the.Fund.
I ,
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6.0 INITIATION OF ON-SITE ACTIONS
edhanisms available to the OSC for initiating an UST
response include:
o Procurement of cleanup services;
o Procurement of technical assistance; and
o Assistance through other agencies.
6.1 Procuring Cleanup Services
For site tracking purposes, the Agency has defined the
“start” of the action to be the date on which a cleanup
contractor (e.g., ERCS) mobilizes on the site, not the date on
which a site assessment is performed, the action is approved, or
the first obligation occurs.
6.1.1 Emergency Response Cleanup Services (ERCS)
contracts
The ERCS zone contracts, supplemented by the Regional
ERCS contracts, form the core of EPA’s emergency response
resources. These contracts provide 24-hour, immediate
delivery of cleanup contractor personnel, services, and
material for response to CERCLA hazardous substance
releases. The contracts also include provisions for UST
response. Procedures to mobilize ERCS contractors are
identical to current removal program procedures, as outlined
in SuDerfund Removal Procedures -— Revision Number Three,
ERCS Users’ ManuaJ , and EPA SuDerfund Emeraencv
contracting Procedures . An Ordering Officer should fill out
a Delivery Order (DO) and Procurement Request (PR) using the
accounting information provided by the ERD Regional
Coordinator or the Region’s Financial Management Officer.
Instructions for completing and processing DOs can be found
in Appendix G.
6.1.2 Other commercial contracts
When use of the ERCS contractor is inappropriate due to
conflict of interest, response time considerations, or other
unusual or unforeseen circumstances, other contractors may
be used. For information and procedures on procuring other
contractor services, OSC5 should contact the appropriate
Headquarters Procurement and Contracts Management Division
(P MD) Contracting Officer (CO).
6.2 Procuring Technical Assistance
6.2.1 Technical Assistance Team (TAT) contracts
The TAT contracts provide technical and management
assistance to OSCs. TAT services include sampling, cleanup
monitoring, documentation of site conditions and activities,
project planning, health and safety planning, cost tracking,
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quality assurance, and related tasks. The two TAT zone
contracts include provisions for UST response. Procedures
f’or implementing these contracts are similar to current
removal program procedures as outlined by Suoerfund Removal
Procedures —— Revision Number Three and the TAT Contract
User’s Manual , except that the Project Officer must give
approval. The Region’s Deputy Project Officer (DPO) should
complete a Technical Direction Document (TDD) form, being
sure to specify that the source of funding is the LUST Trust
Fund (instructions for completing and processing TDDs can be
found in Appendix H). The DPO wist obtain the Headquarters
Project Officer’s (P0) approval of the TDD; the P0 will
contact the contractor Zone Program Manager (ZPM) as soon as
possible to confirm approval. The ZPM will then communicate
the P0’s approval to the appropriate TAT Leader, who may
only then implement the task requested by the TDD. Appendix
H provides a detailed description of the process for
activating TAT. .;..
6.2.2 Environmental Response Team (ERT)
The EPA Environmental Response Team (ERT) provides a
wide range of technical, analytical, investigative, and
planning services. To obtain ERT assistance, contact the
ERD Regional Coordinator.
6.3 Assistance from Other Agencies
Other Federal agencies may have personnel with specific
expertise and experience that could be useful to OSCs in
performing Federal—lead UST corrective actions. EPA has a
Memorandum o f Understanding (MOU) or site-specific Interagency
Agreements (tAGs) with each of several agencies to facilitate
their direct participation in hazardous substance responses using
CERCLA monies. Although there is no provision for their
participation in Federal—lead UST corrective actions, which are
funded under SWDA, OSCs may contact other agencies to seek
informal advice or assistance as appropriate. The following
agencies may be particularly helpful.
6 • 3 • 1 Federal Emergency Management Agency (FEMA)
FEMA is often used to provide’ assistance with temporary
and permanent relocation of affected residents and
businesses during removal actions.
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6.3.2 Agency for Toxic Substances and Disease
Registry (ATSDR)
ATSDR can provide advice concerning exposure effects o .
certain substances, calculate risks to the public and the
environment from releases and issue health advisories where
appropriate, and can recommend cleanup levels. ATSDR may be
able to provide assistance or guidance in performing
exposure assessments (as defined in Section 1.4) at Federal—
lead UST corrective action sites.
6.3.3 United States Coast Guard (USCG)
USCG is experienced in responding to a wide range of
release incidents involving petroleum. USCG may have site—
specific information concerning TJST releases in coastal
zones or affecting surface waters, and should be notified
whenever Federal—lead UST corrective action is considered at
such a release to determine whether response is more
appropriate under the Clean Water Act (CWA).
6.4 Stabilization Standards
Federal—lead UST corrective action will generally be
limited to stabilization of the emergency conditions that
justified the initiation of the response; occasionally, however,
more complete cleanup may be appropriate. Whenever possible,
further cleanup after stabilization should be conducted, as
needed, by the State under an appropriate cooperative agreement
with EPA.
a
When conducting stabilization actions, OSCS should consider
relevant state standards and other applicable guidelines, as may
be provided by the Regional UST Coordinator. The OSC should
stabilize the site to a level that protects human health and the
environment by mitigating the immediate threats.
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7,0 MANAGING FEDERAL-LEAD UST CORRECTIVE ACTIONS
a
This section provides guidance on the roles and
responsibilities of OSCS when managing UST response projects.
A variety of topics is addressed, including oversight of
contractors, allowable costs, cost management, ceiling increases
and scope modifications, access agreements, health and safety,
community relations, reporting requirements, and post-corrective
action site control considerations.
OSC5 have complete responsibility for directing response
operations. This means that they must ensure that all on—site
activities are consistent with Subtitle I of SWDA, as amended by
Section 205 of SARA, and program policies and procedures; that
all expenditures of funds are appropriate and reasonable; and
that subsequent cost recovery actions will be supportable.
7.1 Oversight of Contractors
A major OSC role is oversight of the contractors performing
response activities. Examples of oversight activities include:
• Preparation of the work report;
• Review and certification of the Contractor Cost Report
(EPA Form 1900—55), which lists daily contractor
costs;
• Daily monitoring of contractor personnel and equipment
to verify satisfactory completion of the work:
• D terminatjon of the overall project status.
In conducting these oversight activities, OSCs may request
support from the TAT. Examples of such support are maintaining
entry/exit logs of all contractor personnel and equipment,
communicating oral or written messages from the OSC to the
cleanup contractor, and maintaining logs related to project
costs. The TAT staff may not, however, assume the OSC’s
responsibilities for directing site activity, verifying
satisfactory completion of work, or approving 1900—55 forms.
Compelling circumstances, such as another response incident,
may require the OSC to leave the site for more than 24 hours.
The OSC may designate capable persons from Federal, State, and
local agencies to act as OSC representatives to supervise
response operations. TAT staff, because of their non-
governmental status, may not be designated OSC representatives.
Response program policy dictates the following guidelines
for, and limitations on, the designation and activities of OSC
representatives:
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• Federal emolovees — The preferred designee would be
another Federal employee because such a designee would
have authority to direct, not merely oversee,
contractors; to initiate activities involving
expenditures of money; and to certify completion of
work and costs.
Examples of appropriate Federal employees are
another OSC, a non—OSC Superfund employee, or a non-
Superfund employee from within the Region; an OSC or
other employee from anoth.er Region; or Headquarters
personnel or employees from another Federal agency such
as USCG.
As a practical matter, reassignment of staff from
other duties may be difficult, particularly with
respect to personnel outside the program, Region, or
Agency. Moreover, designation of a Federal employee
who does not have adequate training in program
procedures and response operations could endanger the
response.
• State/local staff — State and local officials are
precluded from taking any actions involving
expenditures of LUST Trust Fund monies, unless an
appropriate cooperative agreement has been executed.
In practice, this means that State and local
representatives may transmit and supervise the
implementation of the OSC’s work orders but may not
provide new instructions.
• TAT — TAT personnel may not serve as OSC designees;
they may, however, continue to provide support services
at the site and monitor cleanup contractor performance
in the absence of the OSC.
Because of the practical difficulties in designating an OSC
representative who can assume full on—site responsibilities, OSCS
are discouraged from leaving the site except in very limited
circumstances. Examples of such circumstances are when EPA has
an agreement with a State or local government to provide water
hookups, or when the site clearly has “insignificant” activity
(e.g., a pump running).
7.2 Allowable Costs
In general, EPA will expend LUST Trust Fund monies at a
Federal-lead LIST corrective action only to stabilize the
situation and mitigate those problems that are directly
responsible for creating the major public health or environmental
emergency. Because of limitations on funds, long-term
remediation and post—corrective action site control (operation
and maintenance) activities must be performed by the State.
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During an UST corrective action, the OSC is authorized to
incur’ only those costs that qualify as appropriate uses of the
LUST Trust Fund. These costs must be directly allocable to a
particular response, reasonable, and necessary to accomplish the
response.
This section summarizes both extramural and intramural costs
that are allowable. To assist OSCs in tracking indirect costs,
the Financial Management Division issues provisional. EPA indirect
cost rates. These rates should be used to estimate indirect
costs incurred during the action.
In addition to the items specified below, an exposure
assessment, as defined in Section 1.4 of this guidance, may also
be performed at a Federal-lead UST corrective action. This
assessment is a brief version of the detailed and complex risk
assessment often performed to estimate exposure potential near
RCRA and CERCL hazardous substance sites. Although the exposure
assessment is an allowable cost, it may rarely be appropriate due
to time and financial restrictions imposed by the response
criteria presented in Section 2.0 of this guidance. The ERD
Regional Coordinator should be notified if an exposure assessment
is being considered.
7.2.1 Extramural costs
• C1eanu contractor and consulting costs , including
waste transportation and disposal, now provided
principally under the ERCS contractor system and
supplemented as needed by non—ERCS commercial
contractors.
• Su ort contractor costs , including TAT.
• Subcontractor costs .
• Other costs , such as EPA leasing or rental of
equipment; incremental costs for EPA-owned
equipment; supplies, materials, and equipment
(including transportation costs) procured for the
specific corrective action and fully expended
during the corrective action; and utilities.
• 15% contingency allowance , for unforeseen
extramural costs.
7.2.2 Intramural costs
• EPA direct costs , including the salaries,
overtime, travel, and per diem of on-site EPA
personnel.
• Direct costs incurred by ERT.
4 .
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• Direct costs incurred by Headquarters and Regional
technical and legal staff.
• EPA Regional laboratory costs .
• Indirect costs , including EPA Regional and
Headquarters management and administrative costs
and fringe benefits.
7.3 Non—Allowable Costs
Corrective action costs not allowed under the LUST Trust
Fund include (but are not limited to):
• State and local costs f or which prior authorization was
not specifically given by the OSC or addressed in a
cooperative agreement (e.g., municipal services such as
use of police or fire departments and State personnel
who are on—scene performing tasks not specifically
requested by the OSC).
• Costs for the research and development of equipment and
response technologies use4 in conjunction with an UST
corrective action (e.g., emerging alternative disposal
technologies). Funding may be available, however,
through other sources; contact the ERD Regional
Coordinator for more information.
• Costs incurred by a contractor to provide response
measures, for which that contractor is later found to
be liable.
7.4 Cost Management
During Federal—lead UST corrective actions, all Regions must
implement an effective system for managing response costs. This
management system must ensure the efficient use of public monies,
enable all response costs to be tracked against dollar ceilings,
and provide the necessary information to support cost recovery
actions.
Ultimate responsibility for cost management rests with the
OSC. Detailed guidelines for the OSC are in the Removal Cost
Management Manual . That manual identifies four components of
cost management (i.e., cost projection, cost control, cost
documentation, and cost recovery) which are applicable to
Federal—lead UST corrective actions, and are summarized briefly
below.
7.4.1 Cost projection
The key to effective cost management is through cost
projection prior to the start of a response, as well as
during a response. Pre—response estimates of costs form the
basis for establishing a t. tal project ceiling recorded in
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the action memorandum; cost projection during a response
allows the OSC to anticipate the need for increases in the
project ceiling. To estimate indirect costs, OSCS should
use the provisional rates provided by the Headquarters
Financial Management Division through the Region’s Financial
Management Officer.
7.4.2 Cost control
Cost control consists of cost planning and monitoring
as well as verification of costs. OSCs are in the most
advantageous position to control response costs if they stay
informed on the availability of cost—effective resources.
Thus, OSCs should: identify non-commercial support services
and response equipment available to the Region; familiarize
themselves with cost—effective cleanup services in the event
contracting outside the ERCS network is required; maintain
information on the cost of obtaining, operating, and
maintaining safety equipment; and review final UST response
reports of costs at past responses.
In addition, OSC5 are responsible for monitoring site
work and verifying that the contractor has provided the
personnel, equipment, expendabies, and subcontractors for
which it has charged the government. OSCS should note the
strict limitations under the EPA contract management
policies for delegating these responsibilities to non—
Federal personnel such as TAT, or to State officials not
operating under a cooperative agreement (see Section 7.1).
7.4.3 Cost documentation
Cost documentation refers to the specific set of
procedures that OSCs use to maintain a record of all on-site
activities and associated costs. The method of cost
documentation should be consistent from day to day at a
specific response but may vary from site to site and Region
to Region. The method an O$C selects must ensure thorough
record-keeping on the following six information items:
• Chronology of events and decisions;
• Site conditions;
• Movement of personnel and equipment (e.g., site
entry and exit);
• Contractor planned and authorized work compared to
actual accomplishments;
• Contractor costs (e.g., commercial cleanup
contracts); and
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• Other costs (e.g., TAT, ERT, Regional laboratory
services, direct Headquarters and Regional
intramural obligations, site access/acquisition).
The Removal Cost Management Manual provides applicable
guidance on methods OSCs can use to determine each category
of direct cost, and includes examples of the various types
of documents OSCS can use to record information (e.g.,
PQLR.EPs, entry/exit log, incident obligation log).
7.4.4 Cost recovery
Because of the possibility of a cost recovery action
for any case involving the expenditure of LUST funds, OSC8
have a responsibility to observe, document, and preserve
critical evidence relating to the response and its costs.
The cost documentation efforts described above are designed
to ensure that facts concerning the release and owners or
operators are recorded before response activity or the
passage of time obscures or eliminates the evidence; that
physical evidence essential for a trial is collected and
preserved in a manner that will withstand judicial scrutiny;
and that the government has maintained sufficient evidence
of actual costs and substantiation of the need to incur
those costs.
The essential elements of a cost recovery action are:
• Evidence of a release or threat of release of
petroleum from an UST:
d
• • Evidence that the defendant Cs) is owner or
• operator of the UST;
• Evidence that the corrective action taken was
necessary to protect human health and the
environment; and
• Proof of incurred costs.
7.5 Ceiling Increases/Scope Modifications
OSCs should anticipate the need for ceiling increases or
scope changes as early in the corrective action as possible so
that the approval process does not interrupt the continuity of a
project. The OSC should notify the appropriate ERD Regional
Coordinator of such changes prior to submitting a formal request
for approval; OSCs are encouraged to send a draft of the
impending formal request to the ERD Regional Coordinator, to
expedite concurrence and approval.
7.5.1 Ceiling increases
The initial action memorandum approving the corrective
• action establishes a project ceiling. This ceiling
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represents the total funding approved for the corrective
action. OSCs cannot incur costs in excess of the initial
project ceiling unless a ceiling increase is approved.
The request for a ceiling increase should contain the
information shown in Appendix E. The level of detail
required will vary according to site—specific circumstances.
In general, the request should include information on the
current site conditions, actions taken to date, costs to
date, and the reasons why the ceiling increase is required
(e.g., changed site conditions- or increased disposal costs).
It is important to explain whether the increase is 1) to
perform more work to mitigate the threat in the original
scope of work, or 2) to respond to an additional threat to
human health, welfare or the environment, not previously
documented, requiring additional corrective measures. If
the ceiling increase is needed to complete actions
previously approved, the request should detail the reasons
why additional funds are required for those actions. If the
ceiling increase is needed to address additional threats,
the request should contain a new finding that the threats
pose a major public health or environmental emergency.
Ceiling increase requests must be submitted to Headquarters
under the signature of the RA and must include the
information outlined in Appendix E.
The RA should send the request for a ceiling increase
to the the Ak, OSWER. In order to ensure an expeditious,
smooth processing of the request, a final copy should also
be sent to the ERD Regional Coordinator who is responsible
for coprdinating the Headquarters concurrence process.
7.5.2 change in scope — no ceiling increase
UST corrective actions are approved by the Ak, OSWER
with a complete scope of work. In order to expand this
scope (e.g., to address an additional threat), a formal
change of scope request, specifying the additional
corrective actions to be performed, must be approved by the
official who approved the initial request.
The request should include information on current site
conditions, actions taken to date, costs to date, and the
additional proposed corrective actions as well as the
additional threat.
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7.6 AcpeSs Agreements
Gaining access to sites, where response actions require the
use of adjoining property or property within the site boundaries
owned by parties who are not owners or operators of the UST, may
require obtaining access agreements or negotiating for rights-of-
way with the property owners. Such agreements may be needed in
order to establish a new road, to allow for the use of a private
road, or to establish a command post.
7.6.1 obtaining access
Primary responsibility for arranging for site access
rests with the State. However, the OSC is ultimately
responsible for obtaining site access agreements. The OSC
may need to work with the State to ensure that arrangements
are executed. Typically, the State will approach the
property owner and the final access agreement will be drawn
up either between the landowner and the State, or directly
between the landowner and the OSC or the response
contractor. Property access agreements must cover the
duration of the response action and any associated post—
corrective action control measures. The OSC is responsible
for overseeing all site access negotiations and agreements,
regardless of whether they are obtained through Federal or
State channels. If gaining access voluntarily is a problem,
the OSC should consult the Office of Regional Counsel. The
OSC should also consult the Regional Counsel to obtain legal
advice on gaining access to property for which the State ha
no authority, such as rights-of-way for public utilities,
railroads, and Federal lands.
7.6.2 Payments for property
The Agency will not, as a rule, pay property owners for
rights—of-way or easements for property adjacent to the site
or within the site boundaries. Cases where payment becomes
an issue in arranging for site access should be referred to
the Regional Counsel or the ERD Regional Coordinator for
assistance.
A written agreement signed by the OSC or EPA contractor
with an owner/operator of an UST or a property owner who is
not an owner/operator but whose property is contaminated or
threatened cannot promise to compensate the owner for use of
the property, to indemnify the owner for potential third
party liability, or to pay for damages. Any written
agreements offered by any property owner must be reviewed by
Regional Counsel.
Generally, the OSC should attempt to restore the
property, to the extent practicable, to its pre—response
condition (e.g., regrading and reseeding a temporary site
access road). The OSC may recommend fair payment to the
owner as compensation, or assess the extent of any
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coj%tamination and arrange for disposal, if necessary. In
cases where the amount or type of compensation becomes an
issue, the OSC should consult with the Regional Counsel or
ERD Regional Coordinator.
7.7 Worker and Visitor Health and Site Safety
Response actions are subject to all applicable Federal,
State, and local Occupational Safety and Health (OSH) laws.
Standards of the Occupational Safety and Health Administration
(OSHA) form the basis for the safety and health protection of
workers involved in Federal UST Corrective actions. Where State
OSM laws exist, these laws may also apply to response actions.
The safety and health requirements of other Federal agencies may
also apply.
For LUST Trust Fund—financed corrective actions, all
Federal, State, and contractor personnel involved are required to
comply with the lead agency’s overall occupational safety and
health policies and with a site-specific safety plan. All
visitors to the site are also subject to the same health and
safety requirements.
Because response activities associated with each specific
incident are unique, standard procedures will often have to be
adapted or modified to meet the incident-specific requirements.
For this reason, a written safety plan must be prepared for each
incident, distributed, and posted in the command post. This
should be done before response operations begin on the site, or
as soon as possible thereafter. The plan must cover all phases
of incident operations and identify key personnel and must be
updated or modified as needed or as conditions change. As a
minimum requirement, the safety plan should address the
following:
• Establishment of the number of personnel permitted to
enter the contamination zones.
• Establishment of entry and escape routes.
• Establishment of procedures to identify, locate,
and alert off—site medical personnel.
• Determination of physical, chemical, and biological
properties of known contaminants.
• Establishment of decontamination protocol.
• Establishment of levels of protection.
• Establishment of air-monitoring protocol.
• Establishment of general safety rules and
equipment.
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• Scheduling of daily safety meetings.
- . Posting of key agency and emergency contacts.
OSCe are responsible for ensuring that workers and visitors
are informed of en—site hazards and the provisions of the site
health and safety plan. The OSC shall ensure that all
individuals entering the site (e.g., EPA, TAT, contractors,
press) have read the plan and understand its contents.
Throughout the response action; the OSC may call upon os
to advise on worker health and safety issues. When needed, the
OSC may request that the National Institute of Occupational
Safety and Health (NIOSH) provide assistance to OSHA in testing
worker protection equipment and gathering information for
guidance en safety issues. The OSC must be cognizant of on—site
health and safety activities and is responsible for monitoring
Federal and contractor compliance with EPA and site safety
requirements and applicable Federal and State laws and
regulations. However, OSC5 are directly responsible only for
their own staff; each government agency and private employer is
responsible for the health and safety of its own employees and
for ensuring compliance with OSHA requirements, applicable State
OSH laws, and Agency health and safety programs. The Agency will
not assume responsibility for other government or contractor
personnel.
OSHA has authority for enforcing compliance with Federal OSH
regulations. Response actions are subject to OSHA inspections.
Where State OSH laws exist, State inspections may take place. If
the OSC disçovers an infraction of safety requirements, the OSC
must remind all site personnel and visitors of the requirements.
Should the infraction continue, the OSC may call in OSHA or State
OSH inspectors to review practices to ensure compliance.
7.8 Community Relations and Public Information
Community relations is a communication network between
response officials and the community. The objectives of
community relations are: to identify community concerns about
the site; to encourage citizens to express concerns and provide
information; to provide information to the community on health
and environmental effects of the release and proposed response
action; and to incorporate citizen comments and concerns
(including those of the owners or operators) into the decision-
making process.
Community relations activities will be important at Federal-
lead UST corrective action sites because a major public health or
environmental emergency exists. However, the time and extent of
Federal involvement may not warrant complex community relations
plans. The EPA’s Community Relations Policy (May 1983) and
Community Relations in SuDerfund: A Handbook (March 1986) can be
used as applicable guidance for developing and implementing
community relations activities. Although no specific activities
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curre t ty required at Federal-lead UST corrective actions, a
community relations profile should be prepared for any action
that lasts longer than five days. The profile should provide
notice to Owners/operators that the record is available for
review. The profile explains how program and community relations
staff intend to plan for and implement community relations
activities at the site. It should contain a brief outline of the
nature of community concerns, the key site issues, the objectives
of community relations activities, and the communications
activities considered for the site.
Some petroleum releases may require short—term corrective
action lasting no longer than a few days-. These kinds of actions
may not involve substantial community relations planning because
of the nature of the emergency and the quick response time
required. At these sites, the focus of community relations is to
provide information about the site and its risks to the
community; information can be channelled through the media and
local officials.
7.9 Record—Keeping Requirements
OSCs must ensure that they document and record all decisions
and determinations they make prior to and during responses.
OSCs must also include in the files any significant comments
received from the owners/operators and their response to these
comments. Structured site and Regional files are the sole
repositories for site records. Care must be taken to ensure
their completeness and long-term security. Both site management
and financial management records are critical when cost recovery
is involved . Complete and precise OSC records of oral and
written communication with owners and operators, contractors, and
participating Federal, State, and local agencies must be
maintained should litigation arise at some later time.
7.9.1 Pre-response records
Prior to the initiation of an UST response (when time
allows), the OSC must maintain documentation regarding
decisions and determinations relating to issues such as:
• The appropriateness of a Federal-lead UST
corrective action;
• Contact with, and comments received front, the
owner or operator;
• Contact with, and comments received front, the State;
• Planning response actions;
• Developing contractual arrangements; and
• Complying with relevant environmental statutes.
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7.9.2 UST response records
During the course of a LUST Trust Fund-financed
corrective action, the OSC is responsible for generating and
maintaining site—specific documents such as action memoranda
and daily and periodic cost control reports. It is critical
that the OSC maintain a log of on-site activities and record
all communications with the contractor, the owners or
operators, and participating Federal, State, and local
agencies. The Removal Cost Manaaement Manual outlines the
osc’s cost control record—keeping responsibilities. The
ERCS Contract Users’ Manual and the TAT Contract User’s
Manual prescribe guidance for contractor—related record—
keeping. Any cost control record-keeping requirements in
conjunction with Federal, State, and local agencies may be
prescribed as necessary.
7.10 Reporting Requirements
The OSC is responsible for documenting and reporting all
response activities taken at a site. Reporting requirements
include preparing and submitting to ERD a series of POLREPs and a
final tJST response report. POLR.EPs consist of initial, progress,
and final reports. This section provides guidance on when the
various reports should be submitted and the types of information
each report should contain. All site information developed by
the OSC must be made available to the Regional TJST Coordinator,
who will coordinate with the State to ensure that an effective,
final resolution to a release will be accomplished by tile State.
7.10.1, Pol1ut on reports (POLREPS)
POLRZP5 provide factual operational data surrounding
the incident and a current accounting of the total funds
allocated in an incident. POLREPs should also detail
measures to ensure that the affected community is properly
and fully informed of all response activities. The Regions
should bear in mind that POLREP5 are a method of alerting
Headquarters that critical events may be pending and that
requests/action are about to be initiated. However, all
requests for Headquarters decisions must be formally
submitted in accordance with Section 4.0 of this guidance.
To properly assist Headquarters management, routine POLREPs
are sent to ERD at (202) 755—2155 (Telefa c), 710—822—9269
(TWX), or EPA 5511 (E—Mail).
7.10.1.1 Initial POLREP
The OSC should prepare and send to Headquarters
and the Regional UST Coordinator an initial POLREP for
each new Federal—lead UST corrective action. This
report should give the start date, describe the
incident (including the outcome of any site
evaluation), give the status of actions (including
enforcement), and describe future plans.
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• 7.10.1.2 Progress reports
Routine progress reports should be submitted to
ERD and the Regional UST Coordinator a minimum of once
a week and daily, where practicable, when events are
rapidly occurring. Progress POLREPs should identify
the following:
a) Situation —- present status of ongoing
response activ&ties;
b) Actions Taken —— activities undertaken since
the last POLREP;
c) Future Plans —- planned actions by the OSC;
d) Project Costs —— estimated funds obligated
thus far, including a breakdown of the cost
categories as noted in the following example:
Extramural Current Ceiling Obliaations To D&te
Cleanup contractors $20,000 $10,000
TAT 5,000 2,000
15% Contingency 3,750 N/A
Intramural (both HQ and Region)
Direct 3,000 1,500
Indirect (estimate based on 6,000 3,000
provisional rates)
TOTAL PROJECT CEILING $37,750 $16,500
e) Any other pertinent information such as
status of efforts to obtain cleanup by
responsible parties.
Also, POLREPs should be provided to ERD and the
Regional UST Coordinator on all major unanticipated
developments of interest at approved corrective actions
(e.g., fires, explosions, and all accidents even if no
damage or injury has been caused) not included in other
progress reports. In addition to reporting accidents
to ERD via POLREPs, a corrective action accident report
(see Appendix F) should also be completed and submitted
to ERD. This form was developed to provide more
detailed documentation of circumstances surrounding
accidents during the course of response actions. The
information it contains is vital should litigation occur.
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• 7.10.1.3 Final POLREP
When a Federal-lead UST corrective action has beert ,
completed, a final POLREP (e.g., POLREP *15 and FINAL)
should be submitted that describes the final actions
taken at the release, results achieved, detailed final
costs and date of completion, the demobilization date,
and future actions planned and who will perform them.
7.10.2 Final UST reports
Within 60 days after the conclusion of a Federal—lead
UST corrective action, the OSC shou] .d prepare and submit to
ERD a final UST report. It is necessary that ERD have these
final UST reports on hand to respond to inquiries from the
public, Congress, the Office of the Inspector General, and
the General Accounting Office.
The final UST response report is a complete report on
the response operation and the action taken. It should
include a summary of events, an analysis of the
effectiveness of corrective actions, a list of problems
affecting the response, if applicable, and OSC
recommendations. The completion date is the date on which
any wastes are shipped for ultimate disposal or the site is
demobilized, whichever is later. Temporary demobilization
and temporary on—site storage are not considered completions
unless they are the final actions approved (i.e., off—site
disposal is not approved).
7.11 Post—Corrective Action Site Control
The State or local government must assume responsibility for
operations and maintenance performance and coSts after the system
is proven to be operational. Examples of operations and
maintenance at a corrective action include running pumps or
operating a ventilation system.
If the State reco ends response options involving
operations and maintenance in the oral request (see Appendix B)
or State request letter (see Appendix C), the State must explain
how it intends to assume resource and financial responsibility
for these options. Some States may have cooperative agreements
that provide for operations and maintenance; the Regional UST
coordinator should be contacted for this information, as detailed
in Section 4.4.
Some situations may require operations and maintenance as
part of all response options. If no owner or operator agrees to
assume responsibility, the State must take over these actions
under an UST cooperative agreement.
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APPENDIX A: Delegations
SOLID WASTE DISPOSAL ACT (SWDM
8—33. Selection and Performance of Federal Corrective Actions
at Leaking Underaround Storaae Tanks
1. AUTHORITY . Pursuant to Subtitle I of the Solid Waste
Disposal Act (SWDA), to determine the necessity of and to select
Federal corrective actions at leaking underground storage tanks
containing petroleum, to enter property and to perform such
corrective actions.
2. TO WHOM DELEGATED . Assistant Administrator for Solid Waste
and Emergency Response and Regional Administrators.
3. LIMITATIONS .
a. Regional Administrators or their delegatees may exercise
this authority only for requests for obligations not exceeding
$50,000, and must comply with Federal-lead UST corrective action
guidance issued by the Assistant Administrator for Solid Waste
and Emergency Response (AA/OSWER).
b. If this authority is redelegated, the Director, Office of
Emergency and Remedial Response, must obtain the advance
concurrence of the Director, Office of Underground Storage Tanks.
d
4. REDELEGATION AUTHORITY .
a. This authority may be redelegated by the Assistant
Administrator for Solid Waste and Emergency Response to the
Director, Office of Emergency and Remedial Response.
b. Regional Administrators may redelegate this authority to
Division Directors, who may then rede]egate to On-Scene
Coordinators.
5. ADDITIONAL REFERENCES .
a. Superfund Removal directives.
b. Section 9005(a) of SWDA.
c. Section 9003(h) of SWDA.
d. UST corrective action procedures.
1.
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APPENDIX B: Oral Request Information Outline
1. State official requesting assistance (should be authorized
by Director of State UST agency designated by Governor).
2. Is the release from a leaking underground storage tank?
(see Section 1.4 of this guidance for definition)
3. Is the released substance petroleum?
(see Section 1.4 of this guidance for definition)
4. Location of release.
5. Time and date of release.
6. Name, description, and general condition of facility.
7. Is the release a long—term or chronic problem?
8. Types and amounts of petroleum substances involved, and
quantities released to environment.
9. Major public health or environmental emergency conditions.
(see Sections 1.4 and 2.2 of this guidance for detail)
10. Number and proximity of persons potentially affected.
11. Increased threat to human health or the environment if
response is delayed or denied.
12. Ongoing efforts to respond to release.
13. State/local/owner-operator ability and willingness to
provide response, with specific reasons for inability to
respond (e.g., lack of authority, technical expertise,
qualified staff, or funding).
14. Specific enforcement actions undertaken by the State.
15. Type of action needed to mitigate or stabilize emergency
(if known).
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APPENDIX C: State Request Letter Format
Federal—lead UST corrective action will not be initiated
unless specifically requested by the appropriate State via the
State UST Coordinator. A letter requesting Federal-lead
corrective action should be signed by the Director of the State
UST agency designated by the Governor and addressed to the
Regional OI Coordinator, or other designated Regional management
official.
Below is a recommended format br the State to follow in
preparing an UST corrective action request letter. While use of
this model format is not mandatory, the letter should address all
of the topics presented in the model in order to demonstrate that
the incident meets the Federal-lead UST response criteria
(particularly that it poses a major public health or
environmental emergency ,and that neither the State, nor the owner
or operator can provide adequate response) and that all actions
in the scope of work are consistent with SWDA. Because this
letter will provide much of the source material to be used by the
Region in preparing an action memorandum (see Appendix D),
adherence to this format is strongly encouraged.
I. HEADING
DATE: [ Month/Day/Year]
SUBJECT: Request for Federal-lead UST Corrective Action
(Site, City, State]
STATE REQUEST LETTER
FROM: (Director of Designated State LIST Agency]
TO: (Regional O}ft4 Coordinator]
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 present, State and local authorities’ role,
the cleanup time frame, and actions to date, including previous
and current actions to abate the threat.
A. Location Descrthtion
1. Describe the site’s physical location.
Give distances from nearest populations and points of
reference, as appropriate. Also state the population size.
For example, “A school is within 1/4 of a mile and there are
1,000 residences within a mile of the site; the area is
mainly suburban residential with some industrial areas.”
c.
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Describe the areas adjacent to the incidents or site n
terms of nearby vulnerable or sensitive populations,
habitats, and natural resources. For example, “The site is
adjacent to wetlands and a tributary to the river flows
nearby. The area’s primary drinking water aquifer underlies
the site.”
Describe any areas protected by statute, such as parks,
historic sites, and sensitive ecosystems. This may include
areas such as the New Jersey Pinelands, wetlands areas, or
wild and scenic rivers.
2. Provide supporting documentation.
Providing pictures, diagrams, maps, and/or sketches is
encouraged. They may be included as attachments or
incorporated into the text. This documentation may help to
substantiate the threat at the site.
B. Site and Incident Characteristics
1. Discuss the history of the incident or situation that
poses the major public health or environmental emergency.
Describe the type of incident that has occurred (e.g.,
a classic release) and why it occurred. For example, “A
corroded storage tank failed during refilling.” Be sure to
list all of the site’s key problem areas (e.g., tanks,
associated pipe lines, free product on ground water, or
contaminated soils).
Describe th exact location of the incident at the
site. .For example, “The release occurred at a corroded tank
in the south corner of the site.” Include the time and date
(if known) of the incident. State whether the release is
new, just recently discovered, or a chronic problem that has
deteriorated. Also describe when and how the incident was
discovered; for example, “The town fire marshal received
complaints from residents of strong gasoline fumes in their
basements.”
2. Discuss the general character of the site; show that it
meets the definition of “underground storage tank” (see
Section 1.4 of this guidance).
Describe the current use of the site (e.g., active
facility, vacant lot, recreational area). Describe the
previous nature and type of the facility, as well as the
activities historically undertaken at the site; for example,
a tank farm used for storing aviation fuels, or an oil
refinery with numerous underground tanks and pipelines.
State the site characteristics that qualify it as an
“underground storage tank” site.
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Include any pertinent information on the site owners or
operators, past and present. This information should
reflect whether the current or previous owners or operators
ontributed to the conditions on the site.
3. Present all findings on the extent of the release to
date.
First, note all pathways of release (e.g., surface
water, ground water, air emissions/vapors, soil). Then,
indicate whether the release is confined to the site or has
migrated of f the site. Where possible, present the results
of any on-site or off—site monitoring. With respect to
drinking water contamination, note the number of municipal
or private wells contaminated or threatened.
4. Discuss the relevant issues relating to current
petroleum management practices.
Describe any existing structures, measures, or
conditions that would either mitigate or accelerate the
release of any materials on site (e.g., an unstable dike,
a temporary containment system, adverse weather conditions,
site security, fencing, condition of containers and similar
situations). State whether the release is widespread and/or
is migrating rapidly.
Indicate the extent to which the petroleum wastes can
be treated or are amenable to alternatives to land disposal.
State whether the site is to be stabilized or cleaned up; if
known.
4
C. Ouantitv and TvDes of Petroleum Substances Present
1. List all petroleum substances known to be on site at the
time of the approval request.
Describe briefly the results of the sampling (e.g.,
“most affected residences exceed the lower explosive limit
for gasoline vapors in their basements”) and give estimates
of quantities of the classes of petroleum substances if they
are available (for example, “four inches of diesel fuel was
found floating on the underlying ground water”).
2. Describe the sampling methodology.
Briefly describe the sampling methodology as well as
methods for maintaining consistency, reliability, and
quality control. Mention who performed the data collection
and the lab analysis (e.g., EPA, contractor, local health
authorities).
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D. ate Role
Discuss the State request for Federal-lead UST
response.
List and describe the reasons why the State cannot
provide adequate response to mitigate the major public
health or environmental emergency posed by this UST
petroleum release. Be detailed; indicate whether the State
cannot respond due to a lack of authority, expertise, or
resources. Estimate the resources required for response and
specify which resources the State lacks, and why. Discuss
why a site-specific cooperative agreement under the LUST
Trust Fund would be an inappropriate response mechanism for
this site or incident.
E. Actions to Date
1. Discuss any previous actions to abate the threat.
Describe any Federal, State, local, owner or operator,
or privately sponsored activities that have been performed.
Give the dates, costs, and effectiveness of such actions.
Actions to abate the threat may include issuance of an
advisory from the locality advising residents not to drink
their water, or the provision of bottled water.
2. Discuss any current actions to abate the threat.
Any Federal, State, local, owner or operator, or
privately—sponsored activities that are currently being
conducted should be described. This information should
include estimated costs and completion dates of these
activi ties.
III. MAJOR PUBLIC HEALTH OR ENVIRONMENTAL EMERGENCY
Strict criteria must be met to justify Federal response to a
petroleum release from an underground storage tank. These
criteria require that neither the State nor the owner or operator
be able to provide adequate response. In addition, the release
must pose a major public health or environmental emergency, as
indicated by:
o An immediate and substantial threat of direct human,
animal, or food chain exposure to petroleum; or
o An immediate threat of fire and/or explosion; or
o An immediate and substantial threat to public drinking
water supplies; or
o An immediate threat to human health or substantial
amounts of property, or an immediate and substantial
threat to natural resources.
4
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The State should ensure that their request letter discusses
how the release meets these criteria. Sections A and B below
provide some specific examples of the types of material to
include that demonstrate a major public health or environmental
emergency.
A. Threats to Public Health and Welfare
Describe the threats to public health and welfare.
List all of the threats, starting with the most
serious, that adversely affect human health or welfare
(e.g., drinking water contamination, fire/explosion).
Identify any human exposure that already has occurred, the
kind of exposure (e.g., inhalation, ingestion, dermal
contact) and the exposure pathway (e.g •, water supply,
indoor air pollution). Describe any reports of illness,
injury, or death that appear to be linked to the exposure.
Be as specific as possible about the number of individuals
exposed, the proximity of sensitive populations (e.g.,
hospitals, schools), the geographic area affected, and
whether exposure was acute or chronic. Also, describe any
anticipated exposure and whether it is imminent, especially
with regard to public drinking water supplies.
compare the amounts or concentrations of substances
shown to background levels or health standards as
appropriate. If a health advisory is given, or if an
exposure assessment has been performed, include it as an
attachment to the letter, and reference it in the
discussion.
B. Threats to the Environment
Describe threats to the environment.
List all the threats, starting with the most serious,
that adversely affect the environment (e.g., damage to
sensitive ecosystem, animals, ground water). Identify any
natural resource or environmental damage that already has
occurred and the extent of exposure (e.g., acute or
chronic). Indicate whether there have been reports of
deaths of flora or fauna (e.g., fish kills). If so, state
how much environmental damage has occurred (e.g., 20,000
acres of wetland contaminated, one million fish killed).
Discuss all actual and potential impacts on the
affected area. Describe any anticipated exposure and
whether it is imminent. Indicate whether the release
threatens endangered species, critical wetlands, or other
resources protected under law.
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IV. ENFORCEMENT
The purpose of this section is to meet the statutory
requirement that priority be given to cases where the owner or
operator is unable or unwilling to undertake necessary action.
This information should be referenced here as “see attachment”
and placed on a separate page entitled “Enforcement Sensitive.”
This section includes information on the enforcement strategy
(summarized), the status of notice letters and/or negotiations,
the available enforcement authority, owners or operators,
previous enforcement actions, the probability of recovering
costs, and the recommended enforcement strategy. This section
also should contain information on the potential for a non—
Federal response. This information is required before Federal
corrective action is started, unless the release meets the
conditions in Section 4.1.1.
A. Enforcement Strateav
1. Briefly summarize the enforcement strategy.
Summarize the enforcement strategy for notifying,
negotiating with, and litigating against owners or
operators. Indicate whether the State or Federal
enforcement attorneys are actively pursuing informal
negotiations, are actively pursuing litigation, or have
decided to postpone or not pursue litigation. For example,
“no enforcement actions currently underway,” or “the owner
or operator has agreed to conduct a cleanup.” Describe what
actions are planned (e.g., negotiations or administrative
orders). 4
2. B ief1y summarize the enforcement actions.
Indicate if litigation is proceeding or is
contemplated. Cite under what statutory authority the
action will be or is being taken (e.g., SWDA Section
9003(h)).
B. Status of Enforcement Actions
1. Owners or operators
Note the names of owners or operators. Indicate
whether the owner or operator has taken action; if so,
describe the action and explain why it was inadequate.
Describe any efforts being undertaken to obtain
additional owner/operator response. Describe the attempts
that have been made to locate owners or operators (e.g.,
oral inquiries both on and off site). Include whether the
owner or operator has been notified (e.g., contacted in
person or by telephone, written follow-up).
4
C—6
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Give the dates that notice letters were sent and a
summary of the responses of the recipients (e.g., the owner
agreed to clean up the site, or denied involvement at the
mite). If negotiations are underway, describe the
activities under discussion.
2. Provide information on the status of notice letters
and/or negotiations.
Describe any previous State or Federal enforcement
actions taken to date. These actions may include notice
letters or demand letters. -
3. State the probability of recovering costs.
Estimate the solvency of the owner or operator.
Evaluate the ability to obtain the necessary actions in a
timely fashion through litigation. This should be included
jf it explains why ‘actions are being requested of EPA when
owners and operators are financially able to undertake these
actions.
V. EXPECTED CHANGE IN THE SITUATION SHOULD NO ACTION BE TAKEN
OR SHOULD ACTION BE DELAYED
Describe any expected changes in the situation should no
action be taken or should action be delayed. Include a
description of the worst case that could possibly occur should no
action be taken. These changes may include:
o Spread of contamination. For example, the ground water
contaminant.plume may spread through a larger area.
o Change in nature of contamination. For example,
gasoline vapors may seep into structures, producing the
added threat of fire/explosion.
o Increased threat to human health and the environment if
action is delayed or denied. For example, the
contaminant plume may soon reach drinking water wells.
o Impact on future response actions if action is delayed
or denied. For example, the tanks will deteriorate
further, leaking additional petroleum into the ground.
VI. IMPORTANT POLICY ISSUES (only as necessary and applicable)
Include a separate section on important policy issues that
are significant to this request. These issues may include:
o Cost sharing (State cost sharing is applicable after
regulations promulgated under SWDA Section 9003(c)
become effective).
I.
C-7
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o The division of responsibilities among Federal and/or
State agencies.
o Owners and operators.
o Off—site disposal availability.
o Special coordination and similar issues.
o Concurrent CERCLA action or the presence of hazardous
materials on site. -
o Contiguous sites (if multiple locations are recommended
for consideration as one site, give justification for
such consideration).
Issues should be fully explained, including a discussion on
the efforts being made to resolve the issue and/or decisions that
must be made before a resolution is reached.
VII. STATE REQUEST FOR EPA ACTION
The State should specify the corrective actions it is
requesting that EPA perform. These night include
o Recovery of free material;
o Temporary water supply; or
o Temporary relocation of residents.
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APPENDIX D: Action Memorandum Format
The Region should prepare an action memorandum based on the
State letter requesting Federal-lead UST corrective action (see
Appendix C). The action memorandum should address all of the
toDics outlined in Aooendix C . along with the additional items
presented below. If the State request letter adequately follows
the format suggested in Appendix C, then the Region’s action
memorandum may simply consist of the following sections with a
copy of the State letter referenced and attached. If the State
letter is deficient, the Region must ensure that the action
memorandum addresses and corrects all of the deficiencies,
including all of the information requested in Appendix C and in
the additional sections described below. In any case, a copy of
the State request letter should always be attached to the action
memorandum for reference.
I. HEADING
DATE: (Month/Day/Year]
SUBJECT: Request for Federal-Lead UST Corrective Action
(Site, City, State]
ACTION MEMORANDUM
FROM: (Regional Administrator]
TO: (see Appendix A]
II. PROPOSED ACTIONS •AND COSTS
OSCs should consider cost as one of many factors when
proposing UST corrective actions. However, there are no
statutory or regulatory requirements for cost-effectiveness. The
purpose of this section is to provide guidelines for presenting
information on proposed and alternative actions, estimated costs,
and the project schedule.
A. Proposed Actions
1. Describe the proposed actions.
Describe the specific tasks involved and the results
sought by the corrective actions as they pertain to the
threat(s) discussed in Appendix C. For example, “The
primary objective of the proposed action is the mitigation
of the threat to public health by provision of alternate
potable water supplies to the affected homes.”
Indicate whether any further information is needed
before all response actions can be identified (e.g.,
D- 1
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sampling to address ground water or drinking water
contamination).
State why the proposed actions are appropriate for thi
situation and explain the rationale for choosing the
proposed option. Describe the technical feasibility and
probable effectiveness of the proposed action. Address
response time requirements, intermedia relationships,
temporary versus long—term solutions, institutional
considerations, and environmental impacts.
Describe the procedures to be undertaken in the
proposed actions. For example, “Corrective action will
include ventilation of affected structures and provision of
bottled water to impacted residents.” Describe any
impediments to the proposed action (e.g., lack of public
acceptance or problems with access).
2. Describe the project schedule.
Give the time frame needed to stabilize or clean up the
site and include how quickly response can begin. Give the
estimated period of performance. Indicate whether post-
corrective action site control (operation and maintenance) will
be required, and how the State intends to perform it.
3. State the estimated costs.
Estimate the total project ceiling with an itemized
breakout of the following cost categories that comprise that
ceiling: extram iral costs, which include cleanup contractor
costs, TAT costs, and a 15% contingency allowance; and EPA
intramural costs, both direct and indirect. For example:
Extramural Estimated Costs
Cleanup contractors $20,000
TAT 5,000
15% Contingency 3,750
Intramural (both HQ and Region)
Direct 3,000
Indirect (estimate based on provisional rates) 6,000
TOTAL PROJECT CEILING $37,750
If LUST Trust Fund monies have been obligated for past
actions, then indicate the obligations (in both Procurement
Requests and Delivery Orders).
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B. lternative Actions
Briefly describe the alternative actions, explaining
the decision rationale used to select the proposed
corrective action plan.
Describe what other actions were considered (e.g.,
providing hookups to city water instead of providing bottled
water). Briefly describe the technical feasibility and
probable effectiveness of each option. Address response
time requirements, intermedia relationships, temporary vs.
long—term solutions, institutional considerations,
environmental impacts, and estimated costs of each option.
State any impediments to the options (e.g., public
acceptance or access to the site). State why the selected
alternative was chosen.
III. RECOMMENDATION
The purpose of this section is to briefly present the
Region’s recommendations, rationale, ‘and projected costs for the
action. For example, “Because conditions at (site name] meet the
criteria for Federal—lead UST response, I recommend your approval
of the proposed UST corrective action. The estimated total
project costs are $37,750 of which $20,000 are for extramural
cleanup contractor costs. This site meets the criteria for a
major public health (and/or environmental) emergency, and no
State, local, or other agency, owner or operator, or other party
can or will provide adequate and timely response.”
Approve:
Disapprove:
Concur:
Attachment ( s]
rName
and
Titlel
rNaine
and
Titlel
rName
and
Title
Date:
Date: ______
Date: ______
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APPENDIX E: ceiling Increase Request Format
The following action memorandum format is recommended for
requesting approval for ceiling increases. The purpose of this
format is to provide the OSC with a blueprint that can be easily
followed when substantiating the need for exceeding the current
ceiling on Federal-lead UST corrective action costs.
I. HEADING
DATE: (Month/Day/Year]
SUBJECT: Request for a ceiling Increase
(Site, City, State]
ACTION MEMORANDUM
FROM: (Regional Administrator)
TO: (see Appendix A)
II. ISSUE
Briefly explain why the ceiling increase is being requested.
Indicate what the new project ceiling will be if the ceiling
increase is approved. For example, “A ceiling increase of
$16,000 for a new total of $54,550 is being requested to continue
a Federal-lead TJST corrective action at this site.”
III. BACKGROUND
d
The primary purpose of this section is to identify the key
characteristics of the release in order to lay the foundation for
demonstrating that a major public health or environmental
emergency exists. These characteristics include site location
and pre—release use, the type of release, and its scope. In
compiling this information, the OSC should consider the
availability of pictures, diagrams, maps, and/or sketches that
may assist in describing the site.
A. Incident/Response History
Discuss the background/hiStorY of the site, including the
following: current conditions at the site; who initiated actions
and when; the date Federal—lead UST corrective actions were
approved and by whom; approved actions; and actions taken to date
(e.g., ventilation of structures, provision of bottled water).
B. Site Conditions
Briefly describe the site conditions and the reasons for a
ceiling increase request. State whether the additional funds are
needed due to increased costs for previously approved actions, or
to expand the scope of work beyond that approved in the original
I.
E—l
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action memorandum. If the ceiling increase is needed to complete
previously approved actions, explain the need for additional
funding (e.g., disposal costs higher than anticipated). If the
ceiling increase is needed to expand the scope of work, discuss
how the site conditions meet the criterion of presenting a major
public health or environmental emergency; also explain why
neither the owner nor operator is able to conduct the corrective
action. Include a description of a worst-case scenario should
the ceiling increase not be granted.
Discuss the present status of the UST corrective action
(e.g., gasoline release contained and soil awaiting excavation).
Include any information that may help substantiate the need
for a ceiling increase. Attach any enforcement status
information, ATSDR health advice memoranda, and other pertinent
information such as pictures, drawings, and other materials to
the back of this action memorandum.
IV. PROPOSED ACTIONS
Describe the proposed actions to be undertaken if a ceiling
increase is approved. Briefly describe the actions that are
required to complete the response; for example, “Bottled water
will be provided until water main hookups are completed.”
Indicate the objective of the proposed actions or the threats
these actions are to abate, minimize, or limit.
V. SU *(ARY OF COSTS
Provide a summary of costs, including a breakdown of costs
for both the current ceiling and the proposed ceiling. Detail
the estimated total project ceiling with an itemized breakdown of
the following cost categories that comprise the ceiling:
extramural costs, including cleanup contractor costs, TAT costs,
and a 15% contingency allowance; and EPA intramural costs, both
direct and indirect. For example, the total project ceiling
should be broken down as follows:
Extramural Current CeilincT Proposed Ceiling
Cleanup contractors $20,000 $30,000
TAT 5,000 7,000
15% Contingency 3,750 5,550
Intramural (both HQ and Region)
Direct 3,000 4,000
Indirect (estimate based on 6,000 8,000
provisional rates)
TOTAL PROJECT CEILING $37,750 $54,550
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VI. RECOMNENDATION
he purpose of this section is to briefly present the
Region’s recommendations, rationale, and the project costs. For
example, “To eliminate the major health emergency posed to the
nearby public and the environment consistent with the Federal-
lead UST response criteria, I recommend you approve this $16,800
ceiling increase request.” Briefly summarize what the additional
funds viii be used for. Briefly state how the approval would
increase the current total project ceiling. For example, “Your
approval would raise the extramural cleanup contractor ceiling to
$30,000 and bring the total project-ceiling from $37,750 to
$54,550. You may indicate your approval or disapproval by
signing below.”
Approve: rName and Titlel Date:
Disapprove: rName and Titlel Date:
Concur: rName and Titlel Date:
Attachment ( s]
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APPENDIX F: Federal-Lead UST Corrective Action
Accident Report Format
1. Date and Time of Incident: Date of Report:
2. Site Name and Location: Prepared By:
3. osc: Preparer’s Phone #:
4. Description of Incident:
5. Factors Leading Up to Incident:
6. Site Work Related to Incident (OSC Orders, TAT Oversight,
Foreman’s Orders):
7. Weather Conditions During Incident (Temperature, Humidity,
Wind Direction and Speed, Precipitation):
8a. Injuries (Person, Role of Person On Site, Description of
Injury): 4
8b. Exposure (Person Exposed, Substances Involved, Type of
Exposure — Inhalation, Ingestion, Derinal):
8c. Medical Treatment (Paramedic, Physician, Hospital, Length of
Stay, Estimated Cost):
9. Property Damage (Owner, Location, Description of Damages,
Estimated Cost):
ba. Other Persons On Site: lob. Other Person’s Roles/
Activities On Site on
Day of Incident:
F—i
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APPENDIX G: Delivery Order Pr.paration and Processing
To activate the ERCS contractor and initiate cleanup at a
Federal—lead UST corrective action, a Delivery Order (DO) must be
prepared and issued. All DOS will be issued by Ordering Officers
(e.g., Regional Deputy Project Officers (DPOs), Headquarters
contracting Officers (COs), or EPA On-Scene Coordinators (OSCs);
new warrants are being issued enabling OSCs to order services at
UST cleanups) for individual corrective actions. These Doe will
be issued on a fixed rate, indefinite quantity basis, with time
and material provisions.
This appendix on DO preparation and processing describes
procedures which address:
o Oral Delivery Orders;
o Delivery Order completion and processing; and
o Delivery Order modification .
The procedures described in this appendix are applicable to both
the ERCS zone contracts and the separate ERCS Regional contracts.
A. Oral Delivery Orders
As indicated, DOS can be issued orally to the ERCS
contractors. This flexibility is designed to enhance response
capabilities under the ERCS contract network. However, any oral
order must be confirmed by a written DO within 48 hours.
d
When tj e ERCS contractor is contacted by telephone for
purposes of orally issuing a DO, the Ordering Officer should
simultaneously complete a Delivery Order form (see Exhibit G-l)
noting:
o Date and time of the order (all references to time
specified in the DO should reflect the local time of
the location where services are to be provided);
o Contractor representative contacted (should be a person
authorized to commit the contractor) and telephone
number;
o Response location;
o Date and time the contractor is required on site;
o Date and time the contractor agrees to be on site; and
o Brief narrative of the services (e.g., personnel,
equipment, and materials) and level of protection
(e.g., health and safety) required.
4.
G- 1
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Some of these items can be completed before the call is made
to the contractor. For example, the response location or the
level. o’f safety protection required may be known ahead of time
and could be completed in advance.
By completing the Delivery Order form during (or for some
items directly before) the discussion with the Contractor, the
Ordering Officer will:
o Provide the contractor clear direction on the services
needed:
o Document personnel, equipment, and materials expected
on site;
o Establish the OSC-Response Manager site management
relationship, and
o Facilitate completion of the written DO issued to the
contractor at the site.
The information recorded during issuance of the oral Delivery
Order will be important should there be any dispute concerning
the contractor’s ability to provide the services within the
required response times.
B. Delivery Order Coiuletion and Processing Instructions
To formally initiate services performed by the ERCS
contractor to conduct UST corrective actions, Ordering Officers
must prepare written Delivery Orders. The DO specifies the
services to be performed by the ERCS contractor in executing a
specific corrective action. Each DO establishes a ceiling amount
that constitutes the maximum amount for which the government
shall be liable. Instructions for the completion and processing
of DOs are outlined below.
1. Delivery Order completion.
Delivery Order preparation is the responsibility of the
Federal Ordering Officer. A standard format is used for the DO;
all items in the DO should be completed as explained below and
illustrated by the sample in Exhibit G-l.
o Date of Order (Box ]i : Enter the date of issuance of
the DO to the contractor.
o Contract Number (Box 2) : Enter the contract number
(e.g., 68-01- ) of the ERCS contract under which
services are being ordered. The final four digits of
this number vary: call the CO to obtain the current
contract number.
1.
G-2
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CCHI3LT G—L
0ELNE Y ORCER POR IMERGENCY RESPONSE CL!. NUP SERVICES
I im .piai-v em.’ E t . . . ‘o a e.’om... I l me c ,,e, Hsm. m 9 ca ..
i C*?* OP OSCSR LCONr *C P40. I l. O OM t4O
01/06/87 68—01—_ — — —
t . op 14ff t* OIUVERY QROU CEILING aNioupa
8 00 4 * 1
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*140 U P I*flON OATè a_ f
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-
68—20X8 153 25.3
SV ORDIRING OP C t Loaw
7& SUEO T ONTPAC?O tHom.. 4 0 0 0 Ca . ”
UST Cleanups. Inc.
2200 Mudcrack Lane
Rochester, NY 14609
k
Vincent Bradford
Environ entai. Protection Agency
841 Ch.stnu Street
Philadelphia. PA 19107
S .. Z0f41
IP* UGIONI.11G3 Ol5 CT
r m. oG 1 ri*GU tjvom. 400 *400 N..I
I jose,h Davidson (7L6 482—2811
03 I
$ c cRoINATC sNom one fteii,a N..,
i . USPCNU M*14AGSR Nam• i .e .vo. I
I Fred Davidson (716) 522—3093 I
Janet Sich (215) 597—0807
SITE sOata one
3. RESPONSE i.CC.i?ICN f S ib 40W.’ .I0WssS one La Con..
ABC Service Station
2927 North 2nd Street
Arlington. VA 22201
4
.
*0. CNTMCTCR UCIJIRIO
01 / 07 i4 _
— — C iv
RICLIIREO WCRII CMPUTION OATS
11.
01 / 13 / 87
— —
I L S IMV4T CF WCRO. Tho Canri.e.’ :n. #vmssa no ‘.CoZW n.m.an... m.e•n.bS. uron.s. bac e.z one •mwm.. o tamp.
A40 022abY I.’ e’ mCm.AI r0tn e . .gO 01 Mo mom Sob FOSV anew
1) Establish a security perineter around the site by installing high—
visibility fence and installing warning signs as directed by 0$C.
2) Drain tvo 10,000—gallon tanks df diesel oil and transport to a
recycling facility in coEIpliance with RCBA.
3) E ccava:s grossly concaninated soil and securely store en sits.
4) Provide and install non—sparking ventilation equipment for enclosed
structures, as necessary. . - -
5) Collect sanpies of soil, and diesel oil as directed by OSC.
Vincent Bradford. OSC
3. CROERV4G OFFICER
.VJs’.. to
I
)J, 1
% I
01/06/87
0as
G—3
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OSWER D1.rective 9 )60.O—16A
• Order Number (Box 3) : Enter a nine (9) digit DO number
which sequentially Consists of:
— Last four digits of the contract number (see Box 2
above);
— EPA Region (e.g., 01, 02, . . .10); and
— Three digit number representing the sequenc. of
the DO being issued in the Region or Agency.
• Time of Initial Order (Box 4 : Enter the time of
issuance of the DO. All references to time on the DO
should reflect the local time at the site where the
services are to be provided.
• Delivery Order Ceilina Amount (Box 5) : Enter the total
estimated cost of contractor personnel, equipment, and
materials for which the order is being placed. The
ceiling amount represents the amount obligated by the
government for the corrective action. The OSC’s/
Ordering Officer’s authority to obligate the government
for UST response is limited to $50,000. All initial
DOs or Order modifications for amounts greater than the
initial $50,000 must be obligated by the CO. Under no
circumstances nay ths ERCB contractor develop th. cost
estimate us.d her.. This is the sole responsibility of
the Federal Ordering Officer who may, however, with
Project Officer approval, seek the assistance of the
Technical Assistance Team (TAT) contractor or EPA’s
Environmental Response Team (ERT) in developing the
estimate.
• Accounting and APProDriation Data (Box 6) : Accounting
and appropriation data consist of four numbers, which
should be entered as follows for UST actions:
— A orooriation Number : 68 2OZ8153 (does not
change).
- Account Number and Document Control Number (DCN) :
Represented by ten (10) and six (6) character
numbers, respectively. These numbers will be
obtained by the ERD Regional Coordinator from the
Headquarters Financial and Administrative -
Management Support Staff (FANS) for all actions
given prior Headquarters approval. If the
Region’s $50,000 allocation is being used (i.e.,
the emergency criteria in section 4.1.1 have been
met), the Region should use its own numbering
system developed by the Regional Financial
Management Officer.
— Object Class Code : 25.35 (for all EPA program
contracts; does not change).
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OSWER Directive 9360.O—]6A
• Issued To: Contractor (Box 7M : Self—explanatory.
• Proaram Manager (Box 731 : Enter the name and phone
number of the contractor representative authorized to
receive the DO and commit contractor resources to
provid, the services and supplies required to complete
the Statement of Work.
• Response Manager (Box 7C : Enter the name and phone
number of the contractor representative designated by
the Program Manager as the single point of contact for
on—scene coordination and responsible for management
and execution of cleanup activities as specified by the
OSC or other designated Federal officials.
• Ipsued By: Orderina Officer (Box 8M : Self—
explanatory.
• EPA ReaioflItlSCG District (Box 8B : Enter the number
for the EPA Region; the USCG District does not apply
for Federal—lead UST corrective action.
• Zone (Box 8C : Enter the number of the ERCS zone where
the site is located:
Zone 1 — Regions I—Ill
Zone 2 — Region IV
Zone 3 - Region V
Zone 4 - Regions VI — X
• On—Scene Coordinator (Box 8D : Self—explanatory.
• Res onse Location (Box 9 : Enter the location of the
release or site where services are to be performed by
the contractor.
• Contractor Reauired on Site (Box 101 : Enter the date
and time contractor personnel, equipment, and materials
are required on site to implement the corrective action.
• Reauired Work Comoletion Date (Box lfl : Enter the -
anticipated date by which contractor services are to be
completed. Estimates are acceptable and dates may be
revised through modifications issued by the Co.
4
G-5
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OSWER Directive 936 0...O-]6A
• Statement of Work (Box 12) : This block contains the
description of the services to be performed by the ERCS
contractor. The Statement of Work should not be so
narrow as to restrict the contractor’s effort nor so
broad as to permit the contractor to explore areas
having little relationship to the desired work. The
block should either contain, or refer to attachments
that contain:
- Statement of Work, including a task breakdown and
schedule;
- Site-specific institutional requirements or
clearances that must be obtained by the contractor
(e.g., permits for transportation and disposal of
wastes or right—of—way clearances); and
- Any plans, including a site operations plan,
health and safety plan, or quality assurance plan
developed for the specific corrective action.
• Ordering Officer (Box 13) : Self—explanatory.
2. Delivery Order processing.
The completed DO is signed by the Ordering Officer and
issued to the contractor Program Manager or designee (e.g., on—
site Response Manager). The contractor is required to
acknowledge receipt of the DO in writing within one week or one
half of the time specified for performance of the order,
whichever i less, following receipt. The acknowledgment of
receipt of the DO must be submitted to the Ordering Officer, with
a copy forwarded to the Co.
It is the Ordering Officer’s responsibility to make sure
that the contractor submits an acknowledgment of receipt each
time a DO is issued. The acknowledgment of receipt will help
preclude misunderstandings between the Ordering Officer and the
ERCS contractor over the terms and conditions of the DO. It will
also serve as documented evidence when potential contractual
actions are required to enforce the terms of a work order.
C. Delivery Order Modifications
During the course of an UST corrective action, it may become
necessary to modify the Statement of Work, completion date, or
ceiling amount specified in the DO. All such changes must be
authorized in a written amendment of the DO using Standard Form
30 (see Exhibit G—2). If increased funding is required for a
project, the existing DO should be amended; a new DO should not
be issued.
G—6
-------
EXHIBIT G-2
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-------
Requests for amendments should be prepared by the Ordering
Officer or the OSC and forwarded to the CO for approval. In m0s1
cases, Tequests and approvals can be handled over the telephone.
The CO will prepare and sign the amendment and issue it to the
contractor. Minor changes, such as adjustments in quantities of
labor and equipment which will not result in an increase to the
DO ceiling, can be provided directly to the contractor by the OSc.
Such changes, however, should be noted in the written site
documentation kept by the OSC, and should be forwarded in writing
to the contractor and the CO.
I.
G-8
-------
APPENDIX H: Technical Direction Document Preparation
and processing
When the need arises for technical services during a
Federal-lead UST corrective action, a Technical Direction
Document (TDD) should be issued to activate the Technical
Assistance Team (TAT) contractor. This appendix presents a
detailed description of the process, including an explanation of
the TDD form used to document the initiation of services and a
description of EPA and contractor roles and responsibilities in
managing and implementing the process. The following are
addressed:
o TDD completion and processing;
o TDD amendments; and
o Special Project TDDs.
The procedures described in this appendix apply to both TAT
zone contracts; however, the specific instructions on completing
the TDD form directly relate to the sample TDD forms used in TAT
zone 1 (EPA Regions I—V) and in TAT zone 2 (EPA Regions VI-X).
A. TDD Completion and Processina Instructions
When a need for TAT contractor services arises, the
Headquarters Project Officer (P0), or Regional Deputy Project
Officer (DPO) with P0 concurrenCe, prepares and issues a written
TDD, which serves as the principal mechanism for initiating these
services. Where practicable, the DPO should confer with the
Regional U T Coordinator prior to issuance of the TDD. An oral
TDD may be issued, but must always be followed by a written TDD
within five (5) calendar days. The TDD includes background data,
the scope of work to be performed, a schedule of deliverables, an
estimate of time and costs required to perform the work, and
other related information.
Only the DPO or P0 is authorized to prepare and issue TDDs
to the contractor TAT Leader. The TAT nay not act on an UST
corrective action without the specific concurrence of the P0.
Each DPO can issue TDDs only to the TAT Leader assigned to that
particular DPO’s Region. For example, the Region I DPO can issue
TDDs only to the TAT Leader assigned to Region I. TDDs can also
be issued by the P0 to the appropriate TAT contractor Zone
Program Manager (ZPM) for special ZPM efforts within the contract
Statement of Work (SOW).
1. TDD completion.
A sample TDD form that has been used in TAT zone 1 is shown
in Exhibit H-i; Exhibit H-2 shows a TDD form used in TAT zone 2.
Eachof the elements on the TDD should be completed by the DPO
as explained below.
‘I
H-i
-------
I . OUC*IPYO :
— Aft
.. 7 — ra ‘L
—3 — —
— . . — — .— c_
— . — & ___ .. _ —
EXHIBIT H—i
[ ,.cc,r cV4yI :
‘
TAT CONTRACT 66-01 .7367
TECHNICM OIRECTION OCCUMENT (TOO)
CNM IMIRGENCY MSPONU ANC
SPILL PRIVENTION P QGRAM
ROY F. WESTON INC.
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OTHER ISPI(3FTh
3. COMMIZ4TS;
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.
H—2
-------
EXHIBrr 11-2
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‘
TA1’ZONIIICONTRACT
CONTRACT NO. U.O1-7363
TECHNICAL DIRECTION COCUMENT (TDO)
ECOLOGY ANO ENVIRONMENT. INC.
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-------
o Cost Center (Box 1AI : Enter the number of the TAT
Region that is being issued the TDD; in the sample, 07
is entered to indicate Region VII.
o Account Number (Box lB : Leave blank; to be filled in
by the TAT contractor.
o TDD Number (Box 21 : Enter this serial number which
identifies the TAT Region in which the TDD is issued,
the calendar year and month, and the sequence number of
the TDD issued that month. For example, the number 07-
8701-03 is interpreted as follows: 07 refers to the TAT
location in Region VII; 87 refers to the calendar year
in which the TDD is issued; 01 is the month the TDD is
issued; and 03 indicates that this is the third TDD
issued in the month of January. If the TDD amends an
earlier TDD, check the “Amendment” blank.
o priority (Box 3M : Check the box corresponding to the
priority of the request. The priority should reflect
whether an immediate action is required (high
priority), an action is to be taken within a definite
time period (medium priority), or an action is to be
taken within a flexible time period (low priority).
o KeY EPA Contact (Box 3B : Enter the name and telephone
number of the EPA person directly involved with
overseeing and managing contractor performance of the
task. This will typically be the OSC.
o Estimate ot Total Hours (Box 4M : Enter an estimate of
the technical labor hours needed to accomplish the TDD
assignment. The estimate should be based on best
engineering judgment considering knowledge of the
project or task requirements, data needs, and previous
experience on similar projects.
o Estimate of Total Costs (Box 4M : Enter an estimate of
the total cost including direct labor, travel,
expenses, and subcontracting.
o Overtime Amoroved (Box 4B : . The DPO must specify
whether overtime hours are allowable for the task
outlined in the TDD by checking the appropriate box.
o EPA Site Name (Box 5M : Self-explanatory; if not
applicable enter N/A.
o SSID No. (Box 5B) : UST sites must be numbered to allow
cost recovery; see page 2 of Attachment I to the
Comptroller’s Policy Announcement No. 87-13 (Appendix I
of this guidance). Contact the Regional Financial
Management Officer and ERD Regional Coordinator for
more information on assigning a site-specific ID
number.
H-4
-------
o city/County/State (Box 5C ) : Enter the location of the
UST site; if not known, this can be entered by the
contractor. If not applicable enter N/A.
o Source of Funds (Box 6 ) : Check the UST box.
o CoinDletion Date (BoX 71 : Enter the date specified by
the DPO for the TAT contractor submittal of the
completed TDD assignment. Completion dates must not be
left open.
o BcferenCe Info (Box 81 : This item allows the DPO to
provide the TAT contractor with any reference materials
or supplemental information necessary to expedite TDD
completion. At the same time, accountable control of
such information is maintained. Check the most
applicable box.
o TvDe of Activity (Box 91 : Check the UST box.
o General Task DescriDtiOfl (Box 10) : In this section,
enter a description of the task requirements that
indicates the following:
- The type of support desired;
- The level of intensity required (the depth to
which certain issues should be pursued); and
- Any other pertinent information.
¶J he task description must clearly delineate the goals
and objectives of the activity and the desired products
and/or deliverables. Ambiguous phrases such as
bassist OSC” are not sufficient. Where no interim task
objectives are present, continuation of the general
task description can be made into Box 12. Where
interim task objectives are present, continuation of
the general task description should be made on a
separate sheet of paper that can be attached to the
TDD.
o Desired ReDort Form (Box 1].I : The DPO should indicate
the type of end product desired for the TDD assignment.
Additional information can be provided in Box 12 or by
attaching additional sheets to the TDD.
o specifiC Elements (Box 121 : In this section, elaborate
on the general task description and define interim task
objectives. This section should provide the TAT Leader
with a clear understanding of the objectives expected
results, and required deliverables and/or reports. If
more space is needed, the continuation of the descrip-
tion of specific task elements should be made on a
separate sheet of paper that can be attached to the TDD.
‘p
H-5
-------
o Interim Deadlines (Box l3 : Denote completion dates,
where applicable, for the interim task objectives that
are specified on corresponding lines in Box 12.
o Sianatures and Dates (Boxes 14—l7 : These sections are
self—explanatory. The TDDs are to be issued and signed
by the P0 (or DPO with P0 concurrence) and received and
signed by the contractor TAT Leader. If the TAT Leader
judges the TDD to be out of scope, or for other reasons
unacceptable, the appropriate box must be checked to
show the action. This is necessary to bring the matter
to the attention of the DPO, P0, Regional UST
Coordinator, and Headquarters Contracting Officer (CO).
An appropriate explanation can be noted on the right-
hand margin of the form.
o Distribution : Copies of the TDD should be distributed
as specified on the bottom of the form, plus an
additional copy to the Regional UST Coordinator.
The DPO should keep in mind three important points while
preparing a TDD. First, the DPO must be as specific as possible
in describing the scope of work to be performed by the TAT.
Second, the DPO must clearly indicate contractor reporting
requirements. And, finally, it is extremely important that the
DPO include in the TDD estimates for technical hours and costs
needed to accomplish the assignment.
Although exact tasks and response activities, particularly
those involving emergency situations, may be somewhat difficult
to define, it is very, important to the extent possible to provide
specific gi idance to the contractor on the expected work scope
(see Exhibit H—i, Boxes 4A and 10 — 13). The task description
should be as detailed as available information permits so that
there is a clear understanding by the TAT contractor of the
activity objective, yet allow some flexibility for alternative
and innovative actions by the contractor as conditions warrant.
Examples of candidate tasks which could be performed for
different types of response, corrective action, or prevention
work can be extracted directly from the TAT contract Statement of
Work (SOW).
Care must be taken by the DPO and TAT Leader to ensure that
all tasks requested and performed are within the bounds of the
TAT contract SOW. Particular attention must be given to ensure
that TAT TDDS do not involve personal services. For example, the
DPO must not direct the TAT to provide clerical support, travel
arrangements, or other personal services for EPA staff. The DPO
is also forbidden from specifying an individual TAT member to
perform a task. Specific TAT staffing decisions are the
responsibility of the TAT contractor.
The tasks included in any one activity will depend upon the
project—specific conditions. It may prove useful for the Region
to develop standardized work scopes for an activity and to use
H-6
-------
this scope (modified as necessary for a specific situation) as an
attachment to the TDD.
In addition, the TDD reporting requirements (Box 11) must b4.
spelled out such that the work product provides the degree of
detail desired by the DPO and therefore facilitates
accomplishment of the activity objectives. The DPO may wish to
develop standard report outlines for various types of activities
(i.e., facility inspection reports) and to attach these to the
TDD as appropriate.
Finally, the DPO is responsible for ensuring that an
estimate of technical hours and costs needed to accomplish the
TDD assignment is included in the TDD. These estimates may be
used in three important ways to ensure that the TAT performs
efficiently. First, these estimates can serve as the basis for
individual TDDs. The actual hours and costs can then be compared
with the estimates. Any large differences between the figures
may be indicative of problems and should be reviewed by the DPO.
Second, the estimated hours, used in combination with the
estimated completion date, can help to identify the need for
overtime to complete the task. Since the contract limits the
overtime which may be charged, overtime must be monitored.
The third use for the estimate of technical hours is to
provide the basis for comparison of total estimated hours for all
active TDDs with the total technical hours available. Total
technical hours available can be computed from the information in
the contract. The difference between the two figures will tell
the DPO to what extent available contractor resources are being
utilized. The TAT contractor can also provide this information
on a regular basis (e.g., biweekly).
2. TDD processing.
After the TDD is completed, it is signed by the DPO or the
DPO’s designee and forwarded to the contractor TAT Leader. (When
the DPO plans to be out of the office and unavailable to perform
contract management functions, the DPO must submit a written
request, or telephone the P0 and CO for approval to appoint a
temporary assistant DPO; this request must be for a discrete
period of time.) The P0 must also be notified by the DPO for
concurrence with the TDD. The P0 will convey concurrence to the
ZPM, who will communicate this concurrence to the TAT Leader as
soon as possible. The contractor TAT Leader can take one of
three actions on the TDD:
o If the TDD is acceptable to the contractor TAT Leader
as issued by the DPO, the TAT Leader signs the TDD and
proceeds with performance of the assigned activities.
In general, the TAT contractor should be willing to
accept any assignment within the bounds of the TAT
contract SOW. However, as stated earlier, conducting
personal services for EPA staff is not allowed.
H-7
-------
o The TAT leader can accept the TDD with exceptions. In
this case, the exceptions are to be noted on the form
• and a copy is returned to the DPO. The DPO and TAT
Leader are to resolve these exceptions prior to the
contractor commencing work. If necessary, a revised
TDD should be issued reflecting resolution of any
exceptions. If the issue cannot be resolved on this
level, the DPO should consult with the P0 in
Headquarters for guidance. If necessary, the P0 will
consult with the contractor ZPH to try to resolve the
situation. If it is resolved, the DPO may issue a
revised TDD reflecting the issue resolution and the
contractor will proceed with task performance. If the
P0 and contractor ZPM cannot resolve the issue, the
matter is referred to the Co for final resolution.
Where possible, and with concurrence of the DPO, the
contractor should begin work on the acceptable work
elements of the TDD, pending resolution of the points
at issue.
o If the contractor TAT Leader rejects the TDD, it is
returned to the DPO with an explanation of the reasons
for rejection. The DPO and TAT Leader are to confer to
resolve the situation. If a resolution is reached, a
revised TDD can be issued, if necessary, and the
contractor proceeds with the task. If the DPO and the
TAT Leader cannot resolve the problem, the DPO should
contact the P0 for guidance as explained above.
When the TDD is acceptable to both the TAT Leader and the
DPO, it should be signed and dated. Appropriate copies should be
placed in the contractor’s and EPA’s central TDD files. The DPO
should then send copies of the TDD to the P0, CO, and the
Regional UST Coordinator.
B. TDD Amendments
In the event that an issued TDD needs revision, the DPO must
issue a TDD amendment containing the appropriate changes. Events
that require TDD amendments may include, for example, an original
underestimation of a project’s magnitude or an acceleration of a
project’s period of performance. The original TDD’s number will
be used, with a check in the “Amendment” blank (Box 2). The
revised TDD should include the material contained in the original
TDD and the revised information so as to be capable of standing
alone. Amendments are to be processed in the same manner as
described above.
C. Special Prolect TDDs
Funding has been obligated for the performance of special
projects under the TAT contracts. All TAT Special Projects TDDs
for Federal-lead liST corrective actions must be signed and issued
by the appropriate P0, after conferring with the Regional UST
Coordinator. If a special pro ect is required, the P0 may
H-B
-------
request that the ZPM prepare and submit a work plan and cost
estimate for completing the TDD. The TAT Contractor’s work plan
should .nclude a detailed technical approach, schedule for
complption, and cost breakdown. It should be sufficiently
detailed to provide a base for guiding work, measuring progress,
and controlling budgets. The contractor work plan should address
the elements specified below:
o Objectives and scope of the proposed activity and its
relationship to other ongoing or planned activities.
o Technical approach for ths activity, anticipated
problems, and proposed solutions.
o Detailed breakdown of tasks to.be performed.
o Description of work to be performed under each task,
including objectives and scope, information sources,
and methods to be used.
o Analysis of resources (level) expected for each task.
o Anticipated total labor cost for each task.
o Identification and tabulation of total direct costs for
each major work element.
o Schedule, including critical path and milestones.
o Listing and schedule of deliverables.
o Safety and contingency measures.
Upon reviev 11 of the plan, the P0 will approve and issue the TDD.
I .
H-9
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APPENDIX I: Interim FinanciaI Procedure. Governing Use
of the LUST Trust Pund
Comptroller’s Policy Announcement No. 87-13
zj
-
g . q75- qgi
‘p
1—10
-------
Policy for Superfund Compliance with
the RCRA Land Disposal Restrictions
-------
UNITED STA*ES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON. D.C. 20460
APR I7I
:.S
OSWER Directive 9347.l—O.
P OR&1WUM
SUBJECT: Policy for Superfund Compliance With the RCRA Land Disposal
Res nc •o
FROM: I
Act ing As istant Administrator
/
TO: Regional Administrators, Regions I—X
Pliroose
To transmit the Superfund policy for complying with the RCRA land
disposal restrictions (LDRs) at Superfund sites.
kgrQ d
CERCLA section 121(d) requires on—site Superfund remedial actions to
comply with Federal, and more stringent State, environmental requirements that
are determined to be applicable or relevant and appropriate requirements
(ARARs). Section 121 also identifies six ARAR waivers: 1) interim remedy;
2) greater risk to human health and the environment; 3) technical
impracticability; 4) equivalent standard of performance; 5) inconsistent
application of State standard; and 6) Fund—balancing.
With regard to Superfund removal actions, the current NCP requires on—site
removal actions to comply with Federal ARARs to the extent practicable,
considering the exigencies of the situation. The preamble to the proposed NCP
contains guidance on how to determine whether compliance is “practicable.”
On—site removal and remedial actions must comply with substantive aspects
of both applicable and relevant and appropriate requirements. Off—site removal
and remedial actions must comply with both substantive and administrative
aspects of applicable requirements only.
The RCRA land disposal restrictions are a potential ARAR for Superfund
actions. As you may know, OERR is developing a guidance document to assist the
Regions in complying with the LDRs. Although several issues must be resolved
-------
—2— 9347.1—02
before this guidance is issued, this memorandum will summari-e one of the major
issues that has been decided, namely, how to determine whether the LDRs are
“applicable” to a Superfund response action. This policy will be discussed in
greater detail in the guidance document.
Objective
In order to assist Regional removal and remedial staff in making current
site decisions about the LDRs, this memorandum will explain: 1) how to
determine when the LDRs are “applicable” to a Superfund removal or remedial
action, and 2) the Superfund approach for complying with the LDRs when they are
determined to be applicable. (This memorandum does not address how to make
“relevant and appropriate” determinations.)
Imolementation
Section A below explains how site managers (OSCs, RPMs) should determine
whether the LDRs are “applicable” to a Superfund response action. Section B
explains how Superfund intends to comply with the LDRs when they are
determined to be applicable.
A. Application of the LDRs to CERCL& response actions
To determine if the LDRs are applicable to a given response action at a
Superfund site, the site manager must answer three questions. The answer to
each question must be “yes” for the LDRs to be applicable.
1. Does the CERCLA action constitute “placement” ?
The LDRs are triggered as applicable requirements by “placement” of
restricted R RA hazardous wastes in land—based units.’ Placement occurs when
wastes are land disposed (or placed) in land—based RCRA units, such as
landfills, surface impoundments, waste piles, and land treatment facilities.
Placement does not occur if wastes are moved within a unit or are left in place
(e.g., capping, in—situ treatment, consolidation within a unit). Placement
does occur when wastes are moved from one unit and placed in another unit. For
example, if wastes from a CERCLA site are disposed at an off—site landfill,
this action constitutes placement.
However, the concept of a RCRA unit may be less useful for uncontrolled
hazardous waste sites, which often involve widespread and dispersed
contamination. Therefore, to assist in defining when placement occurs for on—
site disposal at Superfwid sites, the Agency has developed the concept of an
Several LDR requirements (the storage restrictions, dilution prohibitio’ ,
and off—site notification requirements, in particular) are triggered when
restricted wastes are generated, or picked up, rather than when the wastes
are “placed.” However, the major LDR restrictions discussed in the
remainder of this memorandum are triggered only if wastes are “placed.”
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—3— 0347•
“area of contamination” (AOC). An AOC is delineated by the extent of
continuous contamination, although one AOC may contain varying types and
concentrations of contamination. For example, a waste pit with the surrounding
contaminated soil is one AOC and may be viewed as a single “unit,” e.g., a
single landfill. For the purposes of the LDRs, therefore, AOCs are equivalent
to RCRA units.
Movement of waste within the AOC does not constitute placement, but
movement of waste out of the AOC into another unit will trigger placement.
Placement would occur if wastes from different AOCs are Consolidated into one
AOC or if wastes are removed and treated outside the AOC and returned to the
same or a different AOC. Placement would also occur if wastes are excavated
from the AOC, placed in an incinerator or tank located within the AOC, and then
redeposited into the AOC, because the incinerator and tank are considered
separate units from the AOC.
2. Is the C CLA waste also a RCRA hazardous waste ?
The LDRs are applicable only to R RA hazardous wastes (i.e., listed and
characteristic wastes identified under §261). However, not all wastes at
Superfund sites are RCRA hazardous wastes. Tharef ore, the site manager must
decide if it is reasonably ascertainable, within the scope of the Superfund
site investigation, that the C CLA waste is also a RCRA hazardous waste.
Reasonable efforts must be used to collect the information needed to determine
if a waste is a RCRA listed or characteristic waste. (It is expected that
current data collection efforts at Superfund sites should be sufficient for
this purpose.) The site manager should have affirmative evidence (e.g.,
manifests, records, knowledge of process) to demonstrate that the Superfund
waste is a RCRA hazardous waste for the LDRs to be potentially applicable.
To determine whether a CERCLA waste is a RCRA characteristic waste, Site
managers may test the waste or use their knowledge of the properties of the
waste. To determine if a waste is a listed waste, sampling alone will not be
sufficient. The RCRA listing descriptions will generally require that the site
manager have knowledge about the source of the waste (for example, did the
sludge on site result from a wastewater treatment operation?) or its prior use
(e.g.., was the waste unused when it was discarded?).
If the site manager determines that the site waste is a RCRA hazardous
waste, he/she must also determine if that waste is a “California list” waste.
The California list wastes are a distinct category of RCRA hazardous wastes
regulated under the LDRs. The LDR regulations describe the California list
wastes and they will be discussed in the forthcoming guidance document.
3. Is the RCR.A waste restricted under the LDRs at the time of o] acement ’
The land disposal restrictions are being phased in for the RCR.A hazardous
wastes over a period of time. Attachment 1 presents the LDR statutory
deadlines established by section 3004 of the 1984 RCRA amendments. A RCRA
waste becomes a restricted waste under the LDRs on its statutory deadline, or
earlier if EPA chooses to promulgate treatment standards for a waste prior to
this deadline. Note that after May 1990, fl RCRA hazardous wastes (that were
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—4 --
9347.1—02 —
listed or characteristic as of the 1984 RCRA amendments) will be restricted
under the LDRs.
To determine if the LDRs are applicable, site managers should determine if
the RCRA waste will be restricted under the LDRs at the time the waste is to be
placed.
To summarize Section A, the LDRs are applicable when three conditions are
met: 1) the CERCLA action constitutes placement, 2) the C CLA waste is a RCRA
hazardous waste, and 3) the RCRA waste is restricted at the time of placement.
If these conditions are met, the CERCLA action must comply with the LDRs,
unless an ARAR waiver is granted (remedial actions) or compliance with the LDRs
is determined not to be “practicable” (removal actions).
B. Superfund compliance with the LDR.s
Section B briefly describes the different types of LDR requirements and
provides an overview of the Superfund approach for complying with these LDR
requirements when they are determined to be “applicable.” Section B describes
only the major LDR restrictions; the upcoming guidance document will give a
complete description of all LDR provisions.
1. Summary of the major LDR reauirements
When a waste becomes “restricted” on its statutory deadline (or possibly
earlier), one of four types of restrictions will take effect:
Treatment standard ( 268.4O—43) — The RCBA amendments direct EPA to
promulgate treatment standards for all RCRA hazardous wastes by the
statutory deadlines. To date, most of the standards set by EPA are
concentration levels that must be achieved prior to land disposal. (The
regulations specify whether a total waste analysis or the Toxicity
Characteristic Leaching Procedure (TCLP) must be used to measure the
concentration levels.) For concentration—based treatment standards, any
technology may be used to achieve these standards. However, in limited
cases, EPA has also promulgated a specific technology as a treatment
standard, or has established a “no land disposal” treatment standard where
a waste was no longer generated, no longer being land disposed, or was
capable of being totally recycled.
National caDacitv extension ( 268.30—33) — When EPA sets a treatment
standard for a waste, it must also determine if there is sufficient
capacity available nationwide to treat the waste to that standard. If
not, EPA may grant a nationwide capacity extension for the waste for up to
two years. During the extension, the waste does not have to meet the
treatment standard. However, if waste that does not meet the standard is
disposed in a landfill or surface impoundment, the receiving unit must
meet the RCRA §3004(o) minimum technology requirements (e.g., iouble
liner, leachate collection system, ground water monitoring). Because of
these limitations on disposal, wastes are still considered “restricted”
during national capacity extensions.
-------
—5— 9367. —O2
Attachment 2 highlights the national capacity extensions that EPA has
granted to date for CERCLA soil and debris wastes that are contaminated
with RCRA restricted wastes.
Soft hammer ( 268.8) — If EPA fails to set a treatment standard for a
First or Second Third waste on the statutory deadline, the soft hammer
goes into effect automatically. The soft hammer places two requirements
on the disposal of wastes in landfills and surface impoundments: 1) the
receiving unit must meet the ECRA minimum technology requirements, and
2) the generator must demonstrate and certify that he has investigated
treatment options for the waste, and, where treatment is practically
available, that the waste has been treated using the best practically
available treatment method. The soft hammer remains in effect until EPA
sets a treatment standard for the waste, or until the hard hammer falls in
May 1990, whichever comes first.
Hard hammer (RCRA §3004(g)(6)(C)) — If EPA fails to set a treatment
standard for a solvent, dioxin, or California list waste by the statutory
deadlines for these wastes, or for any “Third” waste by flay 1990, the hard
hammer falls. The hard hammer prohibits all land disposal of the affected
waste.
Compliance with RCRA and the LDE.s may also be obtained through several
options other than meeting the restrictions above. It is important to note
that these options constitute compliance with RCRA; they do not require an ARAR
waiver under CERcL&.
A Treatability Variance ( 268.44) is available when a treatment standard
has been set for a waste. The variance can be used where, because the
site manager’s waste is significantly different from the waste used by EPA
to set the treatment standard, the standard cannot be met or the BDAT
technology is inappropriate. The variance can be granted either
administratively, for a particular waste at a particular site, or through
a rule—making procedure, which establishes a new nationwide waste category
and associated treatment standard.
An Equivalent Treatment Method Petition ( Z68.42) can be used where a
treatment standard is a specified technology, but the site manager can
demonstrate that another technology can achieve an equivalent measure of
performance.
A No—Migration Petition ( 268.6) can be used as an alternative to any of
the four restrictions above. The site manager must demonstrate that there
will be no migration of hazardous constituents above health—based levels
from the disposal unit or injection zone for as long as the waste remains
hazardous.
Delistin ( 26O.2O and §260.22) can be used as an alternative to any of
the four restrictions above, when the RCRA hazardous waste is a listed
waste. The site manager must demonstrate that: 1) the waste does not meet
any of the criteria under which the waste was listed, and 2) other factors
-------
—6— 9347.1—02
(including additional constituents) would not cause the waste to be
hazardous.
2. Suoerfund a roac for conwlyinz with the LDR reauirements
The present Superfund approach for complying with the LDRs when they are
applicable requirements is illustrated below:
CASE A: CERCLA liquid or sludge wastes that are also RCR.A restricted
hazardous wastes
CERCLA liquid + RCRA restricted + Placement = LDR is applicable. Must
or sludge hazardous waste comply (unless CERCLA
ARAR waiver is granted).
If the LDR restriction is
a treatment standard,
evaluate whether it can
be met. If not,
determine if a
Treatability Variance or
other RCRA option is
appropriate.
CASE B: CERCLA soil or debris wastes that contain RCR.A restricted
hazardous wastes
CERCLA soil + RCRA restricted + Placement = LDR is applicable. Must
or debris hazardous waste comply (unless CERCLA
ARAR waiver is granted).
If LDR restriction is a
treatment standard, will
generally be appropriate
to seek a Treatability
Variance. Other RCRA
options may also be
appropriate.
CERCLA response actions often address waste matrices, such as contaminated
soil and debris, that are different from the RCRA industrial wastes used to set
the LDR treatment standards. Therefore, the Agency is undertaking a rulemaking
that will set LDR treatment standards specifically for contaminated soil and
debris. Until that rulemaking is completed, site managers should use the data
collected during the removal and remedial site investigations to support a
Treatability Variance for soil and debris where necessary. As part of this
interim approach, the Agency is developing specific guidance for obtaining a
Treatability Variance for soil and debris, which establishes alternate
treatment levels or methods for soil and debris.
-------
—7— 9347.1—02
If you have further questions, you may call the Headquarters Superfimd
Regional Coordinators, Carolyn Offutt of the CERCLA program (FTS 475—9760), or
Michaelle Wilson of the RCRA land disposal restrictions program (FTS 382—4770).
Attachments
cc: Regional Counsel, Regions I—X
Director, Waste Management Division, Regions I, IV, V, VII, and VIII
Director, Emergency and Remedial Response Division, Region II
Director, Hazardous Waste Management Division, Regions III and VI
Director, Toxics and Waste Management Division, Region IX
Director, Hazardous Waste Division, Region X
Environmental Services Division Directors, Regions I, VI, and VII
Henry Longest
Sylvia Lowrance
Bruce Diamond
Lisa Friedman
Superfund Branch Chiefs, Regions I—X
Oil and Hazardous Materials Coordinators, Regions I—X
Bettie Van Epps, OERR Document Coordinator
-------
Attachment: 1
LDR STATUTORY DEADLINES
RCRA HAZARDOUS WASTE STATUTORY DEADLINE*
Spent solvent wastes (FOOl-F005) November 8, 1986
Dioxin wastes (F020-F023 and F026-F028) November 8, 1986
California list wastes July 8, 1987
- Any RCRA hazardous waste; and
- Liquid (except for HOCs); and
- Exceeds statutory prohibition level for
certain cyanides, metals, corrosives,
PCBs or HOCs
CERCLA/RCRA corrective action soil and debris November 8. 1988
(Solvent-containing, dioxin-containing, and
California list wastes only)
First Third wastes (listed RCRA hazardous wastes) August 8, 1988
Second Third wastes (listed RCRA hazardous wastes) June 8, 1989
Third Third wastes (listed and characteristic May 8, 1990
RCRA hazardous wastes)
New RCRA wastes (any RCRA hazardous waste listed Within 6 months
or identified under RCR.A 3001 after of listing or
November 8, 1984) identification**
* These dates are statutory deadlines in HSWA. On this date, some type
of LDR restriction will apply (i.e., treatment standard, minimum
requirement during national capacity extension, soft hammer, hard
hammer). However, the Agency also has the authority to restrict: a waste
earlier than its statutory deadline. Currently, the Agency is planning
to restrict certain Third Third wastes in the June 1989 Second Third rule.
so individual regulations must be checked.
** If EPA misses the 6 month deadline, the waste will not: be restricted under
the LDRs because HSWA contained no hammer provisions for newly identified
wastes.
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Attachment 2
LDR NATIONAL CAPACITY EXTENSIONS FOR CERCLA SOIL AND DEBRIS
Waste Category
Statutory
Deadline
Treatment Standard
Effective Date
Solvent (F001-F005)
November 8, 1988
November 8, 1990*
Dioxin (F020-F023 and F026-F028)
November 8, 1988
November 8, 1990*
California list (HOCs)
November 8, 1988
November 8, 1990*
First Third:
Wastes where BDAT is incineration
August 8, 1988
August 8, 1990*
Wastes where BDAT is other than incineration
August 8, 1988
August 8, 1988**
Soft hammer wastes - treatment. stinidard not
set; must meet soft hammer restrictions as of
8/8/88
August. 8, 1988
N/A
* The effective date is based on the granting of a national capacity extension. During the capacity
extension, the soil and debris do not have to meet the promulgated treatment standards. However, if soil
or debris that does not meet the standard is disposed in a landfill or surface impoundment, the receiving
unit must meet the RCRA minimum technology requirements (double liner, leachate collection system, ground
water monitoring).
** Except for K048-K052 and K071, which were granted capacity extensions until August 8, 1990.
-------
LandtDisposal Restrictions as Relevant
g civ4ppropriate Requirements for
CERCEAContaminated Soil and Debris
-------
1IO Sr 4 ,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON. D.C. 20460
44 pqO1
OFFICE OF
SOUD WASTE AND EMERGENCY RESPONSE
-
OSWER Directive No. 9347.2—01
MEMORANDUM
SUBJECT: Land Disposal Restrictions as Relevant and Appropriate
Requirements for CERCLA contaminated Soil nd Debrs
FROM: Henry L. Longest II, Director 1AI 14
Off ice of Emergency and Remedial Response
Bruce M. Diamond, Directo .
Office of Waste Programs Enfbrcement
TO: Directors, Waste Management Division
Regions I, IV, V, VII, VIII
Director, Emergency and Remedial Response Division
Region II
Directors, Hazardous Waste Management Division
Regions III, vi
Director, Toxic and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
PURPOSE
To transmit OSWER policy on the relevance and appropriateness
of the Land Disposal Restrictions ( [ JDRS) to CERCLA responses
involving contaminated soil and debris.
BACKGROUND
As clarified in OSWER Directive 9347.1—02 (see attachment),
the [ .DRs are applicable to CERCLA responses only when such actions
constitute placement of a restricted RCRA waste. Therefore, if no
restricted RCRA wastes are identified in a Superfund waste that is
being placed, the LDRS would not be applicable. Site—specific
questions have arisen, nowever, as to the relevance and
-------
—2—
appropriateness of the E DRs to soil and debris that do not contain
RCRA restricted wastes. In particular, Region II (having
determined that the contaminated soil and debris to be treated and
“placed” at the 93rd Street site did not contain RCRA hazardous
wastes) sought consultation with Headquarters on whether LDRs
should be considered relevant and appropriate given that the
Agency is in the process of developing treatment standards for soil
and debris wastes separate from the treatment standards developed
for industrial process wastes.
OSWER POLICY
OSWER has concluded that until a rulemaking is completed that
establishes treatment standards for soil and debris, the LDRs
generally should not be considered as relevant and appropriate for
soil or debris that does not contain restricted RCRA wastes. The
following language should be incorporated into feasibility study
ARAR discussions, proposed plans, and the “Compliance with ARARS”
section of future RODS for situations similar to the above example:
The Agency is undertaking a rulemaking that will
specifically apply to soil and debris. Since that
rulemaking is not yet complete, EPA does not consider LDR
to be relevant and appropriate at this site to soil and
debris that does not contain RCRA restricted wastes.
Should you have any questions regarding this policy, please
contact your Regional Coordinators in the Hazardous Site Control
Division, the CERCLA Enforcement DivisiOn, or Steve Golian (FTS
475—9750) in the Site Policy and Guidance Branch.
Attachment
cc: Sylvia Lourance, OSW
-------
Notification of Out-Of-State Shipments
of Supertund Site Wastes
-------
i irectIve initiation Request osw 9330.2-07
2. Cr ffiate I,Wer a 1of
I441 l . ø Cotusc ?sscn M*s Coo• C c. ,Tr . Aer, C3c.
Hu20 Fleischman OS—240 O .R/HSCD/SLCB 382-5734
3. —.
Notification of Out—of—State Shipnents of Superfur d Site Wastes
4 Si s”w ’ o, O’aaiv . ld uC* rq StA!II II oi eDasii
The purpose of this memo is to implement EPA’ s policy that prior to the off—site
shipnent of Superfund wastes to an out-of-state waste management facility, EPA
Regional personnel will provide notice to• that State’s nvirorunencal officials.
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f 8. Document to be distributed to States by Hesdquartsrs? 0
I This IjaaI M t$ OSW Dfr CUVa* 3y$tiI! F*f,!%UI Stai ,dNe
sag.
1t Sq ’anv . oi tie Cmc. C.v.aN Caot u asot
Betti VanEpps, O R Publications Coordinator
io. Minis aiiø ru. I *OOfC ‘ ITlGaaJ - -
Jonathan Cannon, Act. Asst. Admin., OSWER
PA F vm 3I$-t1 Rav. .Sfl P”r,ioiii I bOi$ Ill
OSWER OSWER OSWER 0
E
DIRECTIVE
DIRECTIVE
DIRECTIVE
-------
UNITED STATES ENVIRONMENTAL PROTECTtON AGENCY
WASHINGTON. D.C 20460
a
SEP I4I
OPPICE OP
SCUD WASTE AND EMERGENCY RESPONSI
OSWER Directive 9330.2—07
MEXOPMID!JM
SUBJECT: Notification o Out—of-State Shipments of Superfurid Site
Wastes jf
FROM: i Z t Acting Assistant Administrator
Office oft/Solid Waste arid Emergency Response
TO: Regional Administrators
Regions I— X
P uRPOSE
The purpose of this memorandum is to implement EPA’S policy
that prior to the off—site shipment of Superfund wastes to an
out—of-State waste management facility, EPA Regional personnel
will provide notice to that State’s environmental officials.
BACKGROUND
A number of States and localities have expressed the concern
that they are not formally notified before unusually large
amounts of Superfund wastes are transferred to permitted
facilities within their States for treatment, storage or
disposal. The Agency believes that such notice may be
appropriate, and that indeed, such notice may be helpful in
facilitating the safe and timely accomplishment of Superfund
waste shipments. Thus, EPA has decided to adopt a policy of
providing States with prior notification of off-site shipments of
Superfund wastes. (Because the State in which the site is
located participates in the remedy selection process, and thus is
already aware of Superfund remedies within that Stats, this
policy will apply only to out-of-State waste shipments.)
OBJEcTivES
The oblectives of this policy are to alert States to
shipments of wastes from out-of—State Superfund sites, so that
the State may take any steps necessary to facilitate the safe
transfer of waste, and to respond to any public inquiries
concerning the waste movements.
-------
2
IMPLEMENTATION
Effective immediately, the Region should implement the
notification of Superfund waste shipments. The Agency intends
that notice under this policy should be routinely provided to
State environmental officials for all remedial actions and “non-.
time critical” removal actions involving the off-site shipment
of Superiund wastes that are known to Regional officials,
including waste shipments arising from Fund-lead responses,
State—lead responses. Federal facility responses, and responses
conducted by PRPS (emergency and time—critical removals are not
covered by this policy). This policy pertains to all such off-
site shipments, not merely response actions involving “unusually
large” shipments; however, you may, in your discretion, decide
that notice is unnecessary for shipments of small amounts of
wastes (e.g., 10 cubic yards).
The notification should be in writing, and should set out
the following information, where available: (1) the name and
location of the facility to which the wastes are to be shipped:
(2) the type and quantity of waste to be shipped; (3) the
expected schedule for the waste shipments; and (4) the method of
transportation. In addition, the Region should notify the State
of major changes in the shipment plan, such as a decision to ship
the wastes to another facility within the same State, or to a
facility in another State.
The identity of the receiving facility and State will be
determined by the lead agency following the award of the response
action contract. The Region should provide relevant information
on the off—eite shipments as soon as practicable after the
information becomes available to the Region: unless the
information is unavailable, it should be provided before the
wastes are actually shipped.
Because CERCLA actions may be carried out under a number of
mechanisms and by a number of parties (e.g., lead State agencies,
other Federal agencies, PRPs), OSWER plans to issue additional
guidance to help Regions to implement this notification policy.
That additional guidance will address: modification of
contracting procedures arid contract terms in order to provide for
routine notification under Fund—lead response actions;
modification to cooperative agreements in order to provide for
routine notification under State—lead response actions; model
provisions for orders and settlement agreements with PRPs in
order to provide for routine notification under PRP response
actions: and model provisions for Interagency Agreements to
provide for notification in Federal facility response actions.
The guidancu may also attempt to establish levels below which
such notice would not be necessary. OSWER will minimize the
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3
burden on the Regions by plac ng the responsibility for prior
notification on the response act.on contractor where appropriate.
Should you have any questions concerning this policy or its
implementation, please contact William 0. Ross of my staff at FTS
382—4645.
-------
AnaLy is of Treatability Data for Soil and
Debris: Evaluation of Land Ban
Impact on Use of Superfund
Treatment Technologies
-------
- ‘.OSWER Directive Initiation Request I
18 Document to be distributed to States by Headquarters? [ J t ”s t s
This R.qu.it Mssts OSW DirectIvas Syst.sl Fwwi.t SLindardl. _____________________
9. &gnasirs ol Laid Cfflca Cr. wss Goor 0*cc Dais
Betti VanEpps 11—30—89
10. Nams and T(ds si Appmvmg 01100*
Henry . r 1 ongest II 11—30—89
EPA Form 131 1- 17 (May. 5 - i l) Pruvioas aieooa g
Os
WER • Os
WER OS
WER (
VE
DIRECTIVE
DIRECTIVE
DIRECTIVE
9380.3-04
7. OrigInator Inforn $tIon
Ngsns of Cø.lta Pssan Ma Cod. C lca c .
Henry L. Longest OERR 382—2180
Analysis of Treatability Data for Soil and Debris:
Evaluation of Land Ban Impact on Use of Superfund
Treatn ent Technologies: A Superfund Management Review: Recoutnendation 34A
4. &immvy of Orsc*ws (unCud. 0 111* siaiamsr.t 0* DwpossI
The purpose of this memo is to transmit an analysis of the effectiveness
of treatment technologies for contaminated soil and debris in response
to the reconinendation in the Superfund Management Review to “carefully
evaluate iitçact of RCRA land ban and other rules on use of alternative technoloc
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-------
F ____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON D.C. 20460
NOV 30 h AO
opc,cE OF
SOUD WASTE AND £MI OINCY 1SP0NSE
OSWER Directive 9380.3—04
QEM
SUBTECr: Analysis of Treatability Data for Soil, and Debris:
Evaluation of Land Ban Impact on Use of Superfw d
Treatment Technologies
Superfund Manageent Review: 34A
FROM: Henry L. Longest II, Director
Office of Emergency and Remedia. (OS-200)
TO: Addressees
Pur ,ose
The purpose of this memo is to transmit an analysis of the
effectiveness of treatment technologies for contaminated soil and
debris in response to the recommendation in the Superfund
Management Review to “carefully evaluate impact of R RA land ban
and other rules on use of alternative technologies.” This
analysis will provide support to Regional decisions to employ
treatability variances for complying with the RCRA Land Disposal
Restrictions as applicable or relevant and appropriate
requirements for Superfund actions involving contaminated soil
and debris.
Backaround
The Superfund Management Review acknowledged that Superfund
response actions may not be able to meet treatment standards
based on Sibest demonstrated available technology” (BDAT) under
the Land Disposal Restrictions (LDR). This may limit the
potential treatment technologies available for Superfund clean-
ups, with technologies such as soil washing, stabilization, and
biological treatment being precluded because they may not meet
the highest level of performance required by LDRs. In contrast,
the study encouraged the greater use of innovative technologies
and urged the reduction of non—technical barriers, such as
regulatory and policy constraints, that inhibit use of treatment
technologies, while preserving the intent and spirit of
applicable RCRA regulations.
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2
OSWER program offices recognized the potential limitation
treatment technologies for Superfund actions and developed a
process to use LDR treatability variances for soil and debris.
Guidance was issued to the Regions in July 1989 through the
Superfund LDR Guide 6A, “Obtaining a Soil and Debris Treatability
Variance for Remedial Actions” (OSWER Directive 9347. 3—0615).
Superfund LDR Guide 6B, “Obtaining a Soil and Debris Treatability
Variance for Removal Actions,” is scheduled to be issued in
December 1989. These guides describe the treatability variance
process, include alternate treatment levels to be obtained under
treatability variances, and identify treatment technologies which
have achieved the recommdnded levels. OSWER recognizes that the
use of treatability variances represents an interim approach and
is currently in the process of acquiring additional data for
developing a regulation on treatment standards for contaminated
soil and debris.
The following analysis summarizes the effectiveness of
treatment technologies applied to soils and other environmental
wastes and provides support for decisions by the Regions to use
treatability variances, when appropriate. The analysis
identifies some of the key technical considerations to be
evaluated in obtaining a treatability variance when there is a
reasonable doubt that a technology operated at full scale cannot
consistently meet the BDAT treatment standards for the soil and
debris to be treated.
Analysis of Treatment Fffectiveness
An extensive effort was undertaken during 1987 and 1988 to
collect existing data on treatment of soil, sludge, debris, and
related environmental media. The results from several hundred
studies were collected and reviewed. All applicable treatment
information from 67 studies was extracted, loaded into a data
base, and analyzed to determine the effectiveness of technologies
to treat different chemical groups (Summary of Treatment
Technology Effectiveness for Contaminated Soil, U.S. EPA,
EPA/540/2—89/053).
Although some of the data on which the analysis is based
have limited quality assurance information, the data,
nevertheless, do indicate potential effectiveness (at least 90%
to 99% reduction of concentration or mobility of hazardous
constituents) of treatment technologies to treat Superfund
wastes. Some reductions in organic concentrations or organic
mobility of more volatile compounds may actually represent the
removal of those compounds as a direct result of volatilization
during dechlorination, bioremediation, soil washing, or
immobilization, which requires consideration of appropriate
emission controls. Percentage removal reductions are not always
a good measure of effectiveness, especially when high
concentrations remain in the residuals. Some of the performanc
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3
su marjzed below is based upon a relatively small number of data
points and may not extrapolate well to the broad array of soils
requiring treatment.
Based on this analysis, a number of technologies commonly
used in the Superfund program provide substantial reduction in
mobility and toxicity of wastes as required in Section 121, of the
Superfund Reauthorization and Amendments Act of 1986. For
example:
Thermal destruction has been proven effective on all
organics compounds, usually accomplishing well, over 99%
reduction of erganics.
- Althdugh the data indicate that PCBs, dioxins, furans,
and other aromatic compounds have been dechlorinated to
approximately 80%, more recent data indicating that
removal efficiencies may approach 99.9%.
— Bioremediation successfully treats many halegenated
al iphatic compounds, non—halogenated arematics,
heterecyclics, and other polar compounds with reduction
efficiencies in excess of 99%.
- Removal efficiencies for low temperature thermal
desorption have been demonstrated with averages up to
99% for non—polar halogenated aromatics and with
treatment often exceeding 90% for other polar organics.
— Soil washing data on organic compounds indicate average
removal efficiencies of approximately 90% for polar non—
halogenated organics and 99% for hal.ogenated aromatics,
with treatment often exceeding 90% for polynuclear
aromatics. The chemical extraction process, with
optimized solvent selection, has demonstrated removal
efficiencies often exceeding 90% for volatile and non-
volatile metals.
- Immobilization processes, while not actually destroying
the organic compounds, reduce the mobility of
contaminants an average of 99% for polynuclear aromatic
compounds. Immobilization may not effectively
stabilize some organic compounds, such as volatile
organics, and the long—term effectiveness of
immobilization of organics is under evaluation.
Immobilization can achieve average reductions in
mobility of 93% for volatile metals, with reductions in
mobility often exceeding 90% for non—volatile metals.
The attachment contains a more detailed summary of the data
which is extracted from the “S’mnIn ry of Treatment Technology
Effectiveness for Contaminated Soil.”
Technoloav Limitations to be Considered
The data available suggest that treatment of soil and debris
with organic contamination by technologies other than thermal
-------
4
destruction will not be able to consistently achieve BOAT
standards. Therefore, other technologies should be used for
those wastes, only if approved under a treatability variance.
The residual concentrations in contaminated soil treated by
technologies other than thermal destruction is highly dependent
upon the concentrations in the untreated soil. Therefore, when
evaluating technologies other than thermal destruction, the
ability of those technologies to treat high concentrations of
organics should be considered.
The Regions need to carefully review the site conditions and
characteristics in designing and operating materials handling,
pretreatment, and treatment requirements. High variability in
contaminant concentra tionS of untreated soil may have an adverse
effect on the ability to achieve treatment levels at higher
concentrations using technologies other than thermal destruction.
Consideration should be given to the need for blending wastes.
In selecting technologies for contaminated soils and
sludges, the number and types of contaminants must be carefully
screened, and, in some cases, different technologies may be
necessary for soils and sludges.
Iut 1 einentat ion
The data indicate potential limitations of treatment
technologies to meet EDAT standards for Superfund wastes.
Superfund LOR Guide 6A outlines the treatability variance proces .
for superfund soil and debris and identifies alternate treatment
levels. Guide 6A should be followed, when appropriate, until
OSWER completes a regulation with treatment standards for
contaminated soil and debris. The limitations on technologies
identified in this memorandum should be taken into account when
evaluating, selecting, designing, and implementing Superfund
response actions.
Attachment
Addressees:
Sylvia Lovrance, Director
Office of Solid Waste
Bruce Diamond, Director
Office of Waste Programs Enforcement
Directors, Waste Management Division
Regions I, IV, V, VII, VIII
Director, Emergency and Remedial Response Division
Region II
Directors, Hazardous Waste Management Division
Regions III, VI
-------
5
Director, Toxic and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
-------
11/29/89
Attachment
TE IOL0GT CNCWSIONS OH SOIL TREAT* rr
Extracted from Swimsry of Treatment Technology
Effectiveness for Contaminated Soil” EPA /540/2-89/053
For each treatability group, the effectiveness of various technol4ies was
evaluated and is summarized In Figure 1. The following ratings were used:.
o Demonstrated Effectiveness: A significant percentage of the data,
201, are from pilot or full scale operations, the average removal
efficiency for all of the data exceeds 901, and there are at least
ten data pairs.
o Potential Effectiveness: The average removal efficiency for all of
the data exceeds 701.
o No Expected Effectiveness: The average removal efficiency for all
of the data I: less than 701 and no interference is expected to this
process as a result of this group.
No Expected Effectiveness: Potential adverse effects to the
environment or the treatment process may occur. For example, high
concentrations of metals may interfere with biological treatment.
In some cases, a different rating was selected when additional qualitative
information and engineering judgment warranted.
Two symbols were used if the compounds within a treatability group were so
variable that a range of conclusions could be drawn for a particular
technology.
cv2004
-------
11/29/89
TE 40WGT cONCLUSIONS ON SOIL TRZATX
Extracted from NSu1 sry of Treatment Technology
Effectiveness for Contaminated Soii EPA 1540/2-891053
Thermal Destruction (See Figure 2)
Principle of Operation
o Thermal destruction uses high temperatures to incinerate and destroy
hazardous vastes, usually by converting the contaminants to carbon
dioxide, vater, and other combustion products in the presence of
oxygen.
Effectiveness on Organ ics
o mis technology has been proven effective on all organic compounds,
usually accomplishing veil over 99X removal.
o Thermal destruction technologies are equally effective on halogenated,
non-halogenated, nitrated. aliphatic, aromatic, and polynuclear
compounds.
o Incineration of nitrated compounds such as trinitrotoluene (TNT) may
generate large quantities of nitrous oxides.
Effectiveness on inorganics
o Thermal destruction is not an effective technology for treating soils
contaminated vlth high concentrations of some metals.
o Bigh concentrations of volatil, metal compounds (lead) present a
significant emissions problem. vhich cannot be effectively contained
by conventional scrubbers or electrostatic precipitators due to the
small particle size of metal-containing particulates.
o Non-volatile metals (copper) tend to remain in th. soil vhen exposed
to thermal destruction; hovever. they may sla; and foul the equipment
Dechlorination (See Figure 3)
Principl, of Operation
o Dechlorination is a destruction process that uses a chemical reaction
to replace chlorine atoms in the chlorinated aromatic molecules vith
an ether or hydroxyl group. This reaction converts the mor. toxic
compounds into less toxic, more vater-soluble products. The
transformation of contaminants vithin the soil produces compounds that
are more readily removed from the soil. An evaluation of the end
products is necessary to determine vhether further treatment is
required.
Effectiveness on Organics
o PcBS, dioxins furans, and other aromatic compounds (such as
pentachiorophenol) have been dechlorinated to approximately BOX
removal, vith more recent data indicating that removal efficiencies
may approach 99.9X.
o Other limited laboratory data suggest potential applicability to other
halogenated compounds including straight—chain aliphatics (such as
1,2 -dichioroethane). The removal indicated by the data may be due in
part to volatilization.
o Although no data vere available for halogenated cyclic aliphatics
(such as dieldrin), it is expected that dechlorination viii be
effective on these compounds as veil.
o Uhen nori—halogenated compounds are subjected to this process,
volatilization may occur.
cv2004
-------
Effectiveness on Inorganics
o Dechlorination is not effective on metals, and high concentrations of
reactive metals (such as aluminum), under very alkaline conditions,
hinder the dechlorination process.
Sioremediation (See Figure 4)
Principle of Operation
o 3ioremediation is a destruction process that uses soil microorganisms
including bacteria, fungi, and yeasts to chemically degrade organic
contaminants.
Effectiveness on Organics
o Bioremediation appears to successfully treat many halogenated
aliphatic compounds (1, l-dichlara.thane), non—halogenated aromatics
(benzene), heterocyclics (pyridine), and other polar compounds
(phenol) vith removal efficiencies in excess of 99%; hovever, the high
removal implied by the available data may be a result of
volatilization in addition to bioremediation.
o More complex halogenated (4—4’DDT), nitrated (triazine), and
polynuclear aromatic (phenanthrene) compounds exhibited lover removal
efficiencies, ranging from approximately 50% to 87%.
o Poly -halogenated compounds may be toxic to many microorganisms.
Effectiveness on Inorganics
o Bioremediation is not effective on metals.
o Metal salts may be inhibitory or toxic to many microorganisms.
Lay Tperature Thermal Desorptiaa (S.. Figure 5)
Principle of Operation
o Lay temperature thermal desorprion is a physical transfer process that
uses air, heat, and/or mechanical agitation to volatilize contaminants
into a gas stream. vhere th. contaminants ar. then subjected to
further treatment. The degre. of volatility of the compound rather
than the type of substituted group is the limiting factor in this
process.
Effectiveness on Organics
o Removal efficiencies have been demonstrated by these units at bench,
pilot, and full scales, ranging from approximately 65X for polynuelear
aromatics (naphthalene), to 82Z for other polar organics (acetone) and
99% for non—polar halogenated aromatics (chlorobenzene).
Effectiveness on Inorganics
o Lay temperature thermal desorption is not effective on metals.
o Only mercury has the potential to be volatilized at the operating
temperatures of this technology.
Chemic*l *xtraction and Soil ‘ashing (See Figure 6)
Principle of Operation
o Chemical extraction and soil vashing are physical transfer processes
in vhich contaminants are disassociated from the soil, becoming
dissolved or suspended in a liquid solvent. this liquid vaste stream
then undergoes subsequent treatment to remove the contaminants and the
solvent is recycled, if possible.
cv2004
-------
o Soil vashing uses vater as the solvent to separate the clay particles,
vhich contain the majority of the contaminants, fro. the sand
fraction.
o Chemical extraction processes use a solvent vhich separates the
contaminants from the soil particles and dissolves the contaminant i
the solvent.
Effectiven s on Organics
o The majority of the available soil vashing data on organic compounds
indicates removal efficiencies of approximately 90Z for polar
non—hilogenated organics (phenol) to 99X for halogenated aromatics
(chlorobenzene), vith lover values of approximately liZ for PCBs to
82Z for polynuclear aromatics (anthracene).
o Th. reported effectiveness for these compounds could be due in part to
volatilization for compounds vith higher vapor pressures (such as
acetone).
o This process is least effective for some of the less volatile and less
vater solubl, aromatic compounds.
Effectiveness on Inorganies
o The chemical extraction process, vith optimized solvent selection, has
demonstrated removal efficiencies of 83X to 89X for volatile metals
(lead) and non—volatile metals (copper), resp*tiv.ly.
Iobilization (See Figure 7)
Principle of Operation
o Immobilization processes reduce the mobility of contaminants by
stabilizing them vithin the soil matrix, vithout causing significant
contaminant destruction or transfer to another medium.
o Volatile organics viii often volatilize during treatment, therefore a
effort should be made to drive off these compounds in conjunction vit
an emission control system.
Effectiveness on Organics
o Reductions in mobility for organics range from 61Z for halogenated
phenols (pentachlorophenol) to 99Z for polynuclear aromatic compounds
(anthracene).
o Immobilization is also effective (84X reduction) on halogenated
aliphatics (l.2—dichloroethane).
o Some organic mobility reductions of more volatile compounds may
actually be removals as a direct result of volatilization during the
exothermic mixing process and throughout the curing period.
o The immobilization of organics is currently under investigation,
including an evaluation of the applicability of analytical protocols
(EP, T LP, total analysis) for predicting long—term effectiveness of
immobilization of organics. The preliminary available data indicate
that significant bonding takes place betveen some organic contaminants
and certain organophilic species in the binding matrix; hovever,
immobilization may not effectively stabilize some organic compounds,
such as volatile organics.
Effectiveness on Inorganics
o Immobilization can accomplish reductions in mobility of 81Z for
non—volatile metals (nickel) to 93Z for volatile metals (lead).
cv2004
-------
I Do’s es’s . I sva b ’ s Ic us ks ” y p Ccn s s,s *.un Ian do’s Ia
2 Pbgt oVsIdIIdsACliS krcIsdW 1Pm d M a ma be d os So IcIal 1iUon a sa s h&19
3 1P* pdMsd sUs snsu ma be a.r4 than 1i dMa kTc v. dos So MaUoi5 i lbs
isis cad1 s.
4 thea . Isdino opss may have Umlad viIr hdIv In wih I ..4s ,d n.n.
FIGURE 1: PREDICTED TREATMENT EFFECTIVENESS
FOR C MINATED SOIL
uu ! .
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peas .)
-------
FIGURE 2: FINAL CONCLUSIONS BY TREATMENT TECHNOLOGY
THERMAL DESTRUCTION
lAIAacfl
M.mm AND ICAII
AVAIIASLI 0*11
LYIiAQI COIICINIRAflOSS
AIm 1 NIMOVUL
SIONICIAD
HM NA1D
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$%NI,O4
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(Ilc1t v
sea
IIILIANI 0004
S
• INs lsclvialogy im. s v.sy wd il oplhman eialng IIons on a vaildy ci kfld nositaSw s.
• &on n ci n—oi-cis cii k t n sane piop—edo i.
• I4l i iavds ci add gas.s piodi .d h the i sin ci oxygen cii onadi I1 ,ciraciy wais a d
•x mssl mild sudac.s.
1—
HMOwNA IED
DI IS. FURAIIS.
ailOliSiN
PNI lecIm
l I
JIL Pass
3 %
.%PLO1
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lNlDA1 I$ NUOVU
IUCII Y
5°U*NT Ioo
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.
• TN. I.cSmol gy im s vaiy waS opdmian sia ig nd lcnu on a vaiiaty ci k ld n a5ons.
• Hi i iavds ci add gases pio xsd ki the ssenc ci oxygen wiN afta the .fraclaiy wdl. aid
wild sudaces
Niffi aflO
M IRAGE
O0NC 1NTIL1 N$
aiMS
AVE 0*01
uFct, Y
isao NSiso
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AM 5. T1 L
-- ° ‘
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PAINS
% N II H
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CCIi NINaløiS NIUOVM
IFI 5 V
PLIANT U0
IU 1I NI •
‘IN. Iscima gy woiks asS at q Inun opstillng condiNone on a vaiusty ci kid conoen edons.
• Oxidi• ci s*ogsn aid saitia con asti pilaiNd eidoius a s media knpsls N riot tanwvsd
koin gas sndselons.
• HI i i 1edorie ci acid gases ‘ced Ii the presence ci oxygen wi staidi the rsIra wy ads
aid exposed meld s’xl i mes.
S
14*&oGE N* I ED
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CC N1RAIøSI MUOVU
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5ffL( NI SOIl
‘
• IN. tedutology wadis asS at opin im opstedng dilone on a vaisly ci kid conoentedons.
• N *de h the ordy kiatdilNty pomp pr.wd. Ion i sra*iie thssmd desauption may b. more co
•I laclvs.
• I1IØ hyde ci add gas.s proàic.d ki the presence ci oxygen all alack th. mkailoiy ads aid
exposed meld sialaces.
oaewtoc u.io
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ii a
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• High wioisis ci Mu. gases may be released mb th. aPnospluwe N not outdid by a PcuS
oxhie bimw.
0 SIULL
EIILI NI 200
-------
FIGURE 2: FINAL CONCLUSIONS BY TREATMENT TECHNOLOGY
THERMAL DESTRUCTION (CONT.)
7 AVASIJI!ONDI
m s acu I
ci avis asu ai ls
eviesos co cista*vm..s Piiq
J DIL sovus
ciis*M OSV*T IS
LOlIfi YCl $
MPU
NON HALOQINAIID
LI ]wAl &
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j
%U H
%PILOT
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4 P$ 1TI *I Y
50II*Nl
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cc eni a t n s.
• Low len etaluvs Ih .imal d.soq alsn may be n • coat s1Is lss.
P YML4 IM
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WOS
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LW 5* 01 AVIR*0I
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l sno
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con c s ai n s
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os i In4lcate that this I thnology would be eli. tvi.
• Pyiotysls and bibsied th.mwl dulnidlon ci wastes Mb meW concnlMons ciw 500 j m may
pOIsl iy ie ace the n ky ci these mMaIo by bk4ng is matala lob th. solid isshIie.
.
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due So polenhlal voIaUiITatIan ci the.. mauls M b sul s.q.ent aoss nw a k çsds.
• Pymlyals and lokw.d theimal deatni lan may ieduc . the mobuhly ci those metals by t*ulng the
iiieI ls Into lb. Solid taskius.
S
-------
‘eTRAflO
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FIGURE 3: FINAL CONCLUSIONS BY TREATMENT TECHNOLOGY
DECHLORINATION
TATAUUIV9SOW
NS( AND KMI
c i avaiusu 0*7*
av a*o CONCINTRL1IOIS
AND S REMO VAIl
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COICINTRATOAL NUOVM
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ki csiiski siliaimns
, •
HMOciPMTEO
OIONS4. iUIIAND.
*NDti is
PJR 5ORI
INDOI
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%
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IUCVCV
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tuuaNt SO
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• Data on sludgss show bsflsi ismovci das to mcis ix Vorm th 6j on ci d Wriat s d bun .,
isaga nIad.
• Lowet kOci concantia ons givu Iow a ramovol slldsndss.
‘Mci
• Paidi us aid soil ma Is shed Isag.nt pnsvailon aid pio ss sNediv.nsss.
• flc.nI dais kiilicais that psaisi thai 99% ci PCBs aid hun . con ho dsslioysd
(des Roslses. 19881
14*100114*110
P18 N 5. CRE5
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l
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10118147 ? 4
• Data was 1w puida Iaropli.nol only Thus. data edçgui that DO isdmology Is pol.nUally
• .csvs lii osnoin silualions.
• flecei dais kdcits that peat., thai 99% ci conisn*i*s n ho dssiioysd
(du Roslas. l988 .
14*100114*7 10
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C 4PUiMO 5
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iut
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Coi INTAAT IS REMOVAL
Stilt NT °
(FF118141 044
‘Thos. dais sugg I DiM this technology Is polsuddy sI.cllvs lii certain sisisilons.
• Scins hslog.nat.d aiphailci i.. wIth th• APEG ,.sg s is him ss ilosIvs compounds.
•sp.daIy lii th u ssaici ci heavy macis. Ths pot.ndci liz this is coat shaM ho ovdusi.d
lii thu Ia ciaiory bs1w. dsdulodna$on satment Is sSled.d.
• Thu Ngh usmoval sItIdsncy may lii the isst4$ ol volalUzsilcn ci Di. APEG pucoess ailng ass
saI l waslik ig process.
.
HALOOINATIDCIQC •
MIIATICS. (1185$.
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0
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phyilcel aid dusndcsh diauad.nsdcs suggest thai DO isdinolagy Is pc1.nlaiy slledlvs
lii csnain siPAatlons. Triatolility s d is will ho nesdsd is confrm the tsolmologys
shusdiveniss.
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• OSRENCH
Ospiol
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• Data was nat avØtd. avoilalds lou hIs vealabdily goup.
• The physlcci and r thoni diaraclenstics oh thu cons Iusnts ci DO Irsatalilhily
poup Indicate that this technology would g be elledive.
L
-------
FIGURE 3: FINAL CONCLUSIONS BY TREATMENT TECHNOLOGY
DECHLORINATION (CONT.)
aI5IUiV QAOI
51 Mi
LVII sa oat*
£VISAQS CCS &.NIaA, ISin.$
1I NMOVAI$
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snousi e
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EFI .5ICV
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• lb. 1 hyslcai atldlo CbsII C$I CMIICISd$Ik* ci the consiMusida at this tISal IItt?
g oti auggsd thai ibis I.dinaiügy wouki g bs sStadh,•.
a The hliji tsmm,aI elhclency may be lb. saubol woi.ilMzaI n a, the APEOpiocasa
adhig as a soil webbing proc.si.
P C I lAS
AI *A,K:.
( Ie.I
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- %
speot
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ccEWIPAi a MMOVM
Ui ti V
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UIUENV ISO
a lb. pbysk.I andlo, ChIInkSI Iia:s sibIk.s .1 lbs consllus$a c i this IisMthIIy
Q1011 suggid thiS ibis t.chno gy would d be sliscilvi.
• ma hi fti rsiiw val .l$cinncy may Lw the uul at wolalIIIjiSIon silt. APEG orsu
sdklgas SIOIwSSbIA$pIOG.S$
CIVISPOLAS
EN SWOOIIMIID
OAMC
cawo ma
IW S S I
•
0
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LV I W4E AVIPAGI
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SEII*NT • .‘ N
IFIII*NI
• The 4 yskai .nd oi chs.iSc.l chatad.dsitcs cl ii i. conatku.da ol Ibis S .MM l1Iy
$1O9 a IAO1OVV would o be sH.dh,..
• The hl i UnVIVIS .Iklsncy may a. lbs sw ci vuls*UIza$inn si lb. APEG sa
aoiMg as a soil washing ptoc.as.
M)NVOIAII.E
IIEIM.S
‘wss,
.
.
V AftI
U(1 IL*
Iwl i)
p
% 5ENCl
i.soi
% UL
OPA 1JIS
.! w cii
Av ERAGE AvERAGE
CGNCENTMIaS PAWOVU
W4 UEIC 5I V
s el l a v E
EFrian a
AVERAGE AVERAGE
CONCINUIAhOI4 SEMOVM
• Th. iysk.l an oi th.nIsl duamdiisllca ci lb. consilusils .1 ibIs ksdshlhty
oi sagged ltd this tschnobgy would be .ft.ábs.
• The 9iysIc.l india dtsir csl chsiadsiIiSk s Si lbs conillusnis ci this V.MshIly
pot augged thiS this technology would be eliscilve.
0 0
EFFU*H1 0
-------
FIGURE 4: FINAL CONCLUSIONS BY TREATMENT TECHNOLOGY
BIOREMEDIATION
• 1i s t.c$udogy Is potamialy slte01vs on moo. mntani er s , especially at be onn s *sIofls.
• Same ci th avalial4e data lot s lrsaIthIbty goiç wer. based on vsq P1gb kldsi
however a,nsbheredon shoild be given to lie ablhty ol the I.chootogy itial P1gb toLal
n nUaiton$.
• Diot nedialan reqiliss sxiiiotnly ndud media with small pailid. d i i i.
• losE ccrrçcsi ds sudi as cyanides. aiserlc. heavy metals, and some organics advsisaty ailed the
tat4 fll
\silng todudsi mixing and nuPlsni and aegeum ad *Iion .
- idlalan is stow pm ss.
IAIASIITV es0 1
M I . l editS
0 1 *VMAUU OMI
AVIMOI COedIII1*AflON$ p.
A % MOVAL$
eawi, aeav*1iam
AIK Ai I
woq
— p*ip$
es%UE* I
•
A V E SAOE AVERAGE
C CtNhiA1 ls NMC74M
NUiNI 29 53 s
struat t 079
• TN. t.d mtogy Is not slisdive lot all contaninanis hi dO dau howiver, there is pd.nlal tot
.11.mivsnasi to, low fri Ud conannkilais with hither dsvelapnsrt
• Tb. esencs 01 thsss contaminsals at low mncsr alons is not eaPicled to k edire with the
teatuerd ci sppIk ls wastes.
• sifsdlvsness 01 Ii i technology may be dtl.iet4 than the data kni4 bscwss the klUal
concanvalons m thes. tests were so Ion.
HMGEENAIID
D N.ls. tUNAS.
MCUCIR
peccuasans
t I
P* a
j %PiOT
AVERAGE AVERAGE
COCINIRAICiat MMG’IL
‘ i III IICV
1 U*NT 5 000 SO
-
•Ø U N 013
• The lone data pair Is PCBs.
• C igalng iseerdi suggests mat this 1sctw clogy map be pdenhlalpi ellecdve lot Ids gerip.
KMCOENAfl O
1i4**LCiiIQL
tMIIES. tHUS.
AIØODORP .M
ANOMA1 $
. .. . .J *ms
j sotiøi
j %PtoT
%II*I
AVERAGE AVERAGE
CGICEN1RAICIS otuovu
so •_ j
WLtSNI ,
• INs tedmotogyls polinildy eIl.clvi lot tow toatal concsnlallcne.
• hior. ed lvi MLII. . ifllormiy nOed media with small panic, sizes.
• Toxic i oimds such as cy a des. wusrdc, heavy moWs. sad same organic. wlvurs.Ip sum l ie
tea .
. Pi. roansslogtodi01oondxlngandm*lerl sad cigerOm addifion.
• BIOiSiiisdIilafl Is stow gvocoss.
• S imm. lcnhasbwonutsislatlvetoother Isdvdo ss.
HALO GINA1ID
“°‘c
cou uaos
0
J %PtOt
% 11 51
AVERAGE AVERAGE
COCEIIfMt N5 U M
UFCSNCY
HU N1
EFFL1 NI
• 1)ds lerthnology IspolsntisIpihec ve tat tow kiitid atlons.
• Bicrimidlalon IS 1L*e$ tidkvtidy trued media with small padids dies
• Toxic conçcuids such as cyanide.. aisudc heavy metals, and same otwulc . adversely slisci the
• Pis vocosskig hidiales ndskig and r.*lsrl aid orgerOm eikildon.
• too slow pmcoss.
• Si em.dlalon h low coils dailvo to other lsthiaIo es.
• Removal may wttdp opiseant volaulzslon **ig prspscossslng aid Psaitnaid.
Ks1oGcftaI1oCY
UHATCI. £D 5.
E 5TEM.NO
liflot lEs
-.
5 4
. .j %PLOl
%F1&L
AVERAGE AVE RAGE
CGICENIR*TCNS iiU M
— E U £tNCv
NLI*Nt 0 0
EFFLLCNT 0
• Data were nol evdl e lot dO P.alddlIy gwp. Data lot conçcimde with sliM physkid
aid disndcal diaiadaiuslco suggest that this Iedviology may be potentially eIledIvs hi coddn
illuation$ w i low WId coni*nkslsnL
NiTRATED
fl’a
AVERAGE
CQICINIROTONS
AVERAGE
Muovu
IOOSPOO I
NII*Nt 13000
52
£IEIIiNT 1.400
-------
FIGURE 4: FINAL CONCLUSIONS BY TREATMENT TECHNOLOGY
BIOREMEDIATION (CONT.)
7 ataj y W I
SS LN MQ M 5
0*5*
£VIR I
£ND% N0vAL S
S05M 0 nVAI slS
ucviaocvcs s
sirn 51Mph
NQNbWOO(N*TE
*aouanca
Iwert
1! p
—
.! ioi
% FILL
AWH*G1 AvIRt I
cocsuuasi s nluovn
PIIII*NT 220 )N%
£IIIt*HI
This I.ctmolagy Is potanhlaly eIIsdhi • Iai low kiklal cmos ndons.
• Blaiame askm squkes unIk rmhy irücd mada widi smalpw&l. alias..
• Tosic con oun such as cyanklus. ais.n . hoavy m .i.t ., and soms oigank cosrçounclo
• Pa Nocasslog kickiales adikig and rstAilcat and osganism addilon.
•m. lowpoces.
• Bloi . nd . iIon has kiw costs ielaIhvs to oth.i hsclinohogIss.
• Remaval ii.y Sciusly volsUihaahIan d uhiig pa. oc.ulng and tis manL
AI 3U*T $
IWOS)
eaaas
IS
.iOi
— %FIAL
A I&*0I AVIR L
CTRAIK IS NIaOvM
tII J&t T
%
IUII*N1 3!
.
• This l.ctnology Is poh.nhlally .di dI,. los low ki 1aI onncsali.dons.
• Bloa.m.a$albn isphes unlkundy nñ.d awda with smal paa d. shz.s.
• Toelc coispounds such as cyanklus. aiacalo 1 hoavy msIals and scm, oigsnlc coirpounds
adiosssly ailed IissIm.nI.
• Pcspocssslng kickiduis isdakig and ni il.nI and oiganlsm addlion.
• •
•Ialoiosnsdalisn has low costs slaflvs ho oth.i ladinclogiss.
OTI*IIP M
lION HUOQENSIED
ONQN G
co wos
(WOS)
p*u
•%UHON
P101
11*1
ai.anas
COucINTRAImNI MMOVM
—
l L N1 ‘
F11t 141 0
• This tichnology hp s lyshlodiws los low killal cnco.iradons.
• Bloisawdailon I s pII. . u nnlyndcod m.da wth sinai paidols sloss.
• Teak conpounds such as cysii.a... aisonic, h . .vy meiak and soms osgank conpounds
sds .rsaIy sUed h.IIIwId.
• Psaixoc.sdng kiclodos ndakig and ntddont and ciganlam .ddllon.
• Blommaiuallon Is $ slow lNocua.
• Bloismsd.hIon has low costs sully. ho cthsi Isdinchogiss.
• Renwvsl insy adusly ,q .s.al volahlliahlon dialog pesptoc.sakig and IlsMuiwnL
HON 0LAIt1
MflMa
tWil l
.
._..! pa..
• %SENCH
*vsnans
CoscIwInAliows MMOVM
155 . 1 1 IIIWICV
0
0
• II i C cithallons oh wavy mslals may sdvers.ly ahlsd padloLdar organisms.
• Ths ihyslcolan&oschacht.d.Ucs.Idwconstiunts.IU sk. . ia& iIyg,oIq)
suggsM dial hi I.chnology WOUld sa l ha shsdk’i.
.
VOLAISE
MEIMS
‘W I’)
P*ui.
0 QEHON
0 P105
%FIflL
* i .RAO1 OVERalL
CONC LNTRAflON$ NMOV*L
UI ltNcy
INFLLIN I 0 0
EFFLUENT 0
• p .i concani,ations oh lisavy metals may adversity 5usd particular organisms.
• Tb. physical andlor chandcal cha,acl.dsilc. oh di. coostliwnis oh Ibis healabhlhty gmiç
sugged dial di. l.chiu logy would aol b. study..
.
.
-------
FIGURE 5: FINAL CONCLUSIONS BY TREATMENT TECHNOLOGY
LOW TEMPERATURE ThERMAL DESORPTION
iaut*asirv aum
M11 Li. SCUI
LVM*SI1 0*11
anaAas coIsciNiaAmss
*Ne%a 0V 1L1
as.s&tosuavaiios
,4MUgN ltID
* a,Es
WQI
P* i
%PIOT
S RU
* i P4*05 L V I P4*05
iCLNIft*I iI UOVM
UilIL NI 130
DFU* NI
Although tO S inaIogp was nd sips .d m p.4cmn vision tO Psil iily the data horn
slicks vibith s iiz.6 14sw cçwaling lampemiasa aid bigir rssldsnco din.. Indicils hal maiy
ci tie compounds in his soup may be .ai.d by tO tac*viology viffi pd.ndai 011.cdv.nsss.
• This iscimology Is m l us ivnsndsd 1w us Psalnat ci waste IrnWI wt th axilain high
ccwicsntralions ci metallic aid i INgalic leone ci in.aiiy. tiil.ss smlsslon as conloIlsd.
• This technology has dwnonslated sllaclvsnas$ on sonie ci his nas daule conlaithionts k ’s IN.
910 (9. aid Ills po l.utlalIy olIeclivs on hi. ismalning conlanéwits.
PC .
I4UO O IN*IED
IJOU4. UMIet.
p Q ols
I I
.1 PAI l S
0
. ..i S PtOt
. .....f sfl*L
IvIMOS aWIR * 01
CC.CSN1**IO.5 M OY¼
II I IIICSNCV
0
IUUtN I_____
• No data viws avaIa e
• The F*yM l idlw d ’ssn ’ sIcci iwscl.flshcs ci the confllusnta 01 INs V.at Iy groaç
suggest Sial tue Is vdogy woid ml be eft che.
• This Isdmalogy Is not iec nmsndnd 1w tie t.aknsct ci wails nOixss v4 cIi u itskt high
cwx srlietvins ci metallic aid i wgaulc loins ci nwmily. unless atusslons a. coddled.
.
14M 001$ i*1 SD
piatas. C 50(S
AMSdI IME1L
LIS IO1VIIPoJO
*AoU*T S
iw
jftAINs
.. ._.! s PLOt
._._!%VULL
L V I 1*01 LV I I*0I
coNCLiSIRAIOS$ NMOVM
III C V
esiugs, —1 .
1IILI*NI •,
• Although tie data euggssl that INs I *mcIogy p , hJ
tsdviebgy. II cpsiatsd at higha l.nipwalitss aid u.sldsncs tunes, may stix*sslely Dat
many ci ii . cuiids in ills grcsç.
• This t.thuology Is not issuivn.nd.d as tie peamient ci waste duals w4ikti contain high
conosr*stlons ci mit Ic aidloi oigwilc lomis ci mci.y. uauIsss mIssions ai.conloUsd.
,M& OC i lNA I ID
UPHAIC
ocu oa
PAIRS
.j7 SICICH
JO 50101
*WR AVER * 01
co. N1RAI I5 NNOVM
IFICENCV
e Lt NI
WU.ENT II
• This iscàmology woks vial on ills t.atabM y aip
• R.movci ciMsidss we nit a. high viti scis hMig eEtIanciy slsvet.d concsnVetlans.
A angst issidanco tune may ism.dy tls silisdon.
• ills lec*mdogy Is not iiwnaidsd 1w the isalnat ci wails nIs aes vitlolt contain high
ccmcslcstbns ci milalUc aidloi csgonlc bins ci inaaq. unless ailsslons we con okd.
IULOO SNATIOCYftC •
MPHAICI lflUI
LITERS.
ICE 1 (5
IS-I
stilL
AVIRAGI AVERAGI
CcICLNiRAtOls Ni.VM
uiic ’cv
ISFUaNI 0 0
EULIaNI 0
• No data viws avallahi. lot INs lahulky
• The Isyalcol wid oi disnlcci chasciadsoco
suggest that INs tadinology wou4d g $ be &h.clvs.
• This Isdmdagy Is not secaivnsndsd lot his psaPnsi* ci wails clukass vit&hi contain high
u’sncw*atk’sns ci mstallic actor organic bins ci mwwuy, udss* mIssions as conkalled.
_9P 11R 5 AVIRAG I AVIRAGI
coNclismAlads NMOVAL
511 1*1 10 s &NCH IHCtN • No data wore avaI1gt s ins his Veatabsily gicup.
• This u.ctmology Is not s.convnanded 1w his Iaalm.n$ at waste tIsSues vitiicii amlaki high
Os PLot PIFUEN I _____ — • ccncmnttatlons ci melallic wdtor organIc arms ci mstoay. unless .tnlsslwii as conIoIIsd.
O sluiL III u ItNI 0
-------
FIGURE 5: FINAL CONCLUSIONS ØY TREATMENT TECHNOLOGY
LOW TEMPERATURE THERMAL DESORPTION (CONT.)
IM*T* 5UITTonnIr
£IQSCM$
w avu au osta
L V I R I COSI i(ffiAfl0SIS
iso i savu.s
S RM OS iV&flOso
etflS0CYCi S
NdIIII
*)H i MOGlNAII0
LOOSIATICS
IWO ,)
J!!. ‘iso
ssi, s
. SPSOT
iviii s
CCMI.lIRAlIOso N&IOVAI
IFIICItP V
P041* 111 0 N
£F I41*NT Ii
• This Isdinology woiks *51 on this b.sl 4Uly gtoiç.
• fiJs I.dinologV Is nof tsc.oiwi .niMd Iui lb. hs mwd ol waol• nil*Iuiis s$ k k conl&n hl ,
MIons ol insislIc andfoi oigsnlc bmw ol nwicuiy. unless snOslons a le conboled
.
PcRVIei t*R
fin$a $
1*5 1 1
— PAso
% SEI H
S PlOT
— ! S t I LL
L V I RAQI LVIM I
PSu0VM
LI tICRNCV
WEII*N1 1400 ii
l tIII*N1 130
• This S.dinolegp IS nol 9 SflSt5iI .IbdIsiS5ibIlofmSntIoi S 1OUfiibul kidMéi t conçounds
g y bs kesl.d ofhidIvIly of IiI *II opoisikig lsn scaIutsa and kngui isskfsnos Ikiws
• This I.dinobog ts nol rsconVuefld.d lot lb. tiesbnw* 01 woofs tnlditss 01 Ich conloln tJ l
concenkallons oh meishic andfol o:giudc bmw of meicumy. unless snôskins we consoled.
01i RPC*AR
w*IHMcoIMII O
coaMao
Co4g1 _eIJ _s
nosj
—34 P AIIVI
wNCH
uu
LV I RAGS
c IKIRM IM3VP&
— I1I ti V
1.500
IIt I i*N1
• ‘ P ’ °° ‘°‘iw
• ibis I.dinoiogp Is ao l ,.conwnsndsd lot lb. Imolmen oh esof S nththaies w$i h conlski hl i
of ic andlw sigank blow of msmcuiy. unless anisslens we conlioled.
NON LAIS1
M a IM_ I
twill
— 9PM
PS 01
AVIRM L AVI AQS
ainom uovst
WN4 (IICRI V
P01 1.4 111 0 0
uru lin
• Tb. i l’vs sad /os thaaksl chstscftdof s of the oonofluoids of this I1.ofabllty
lodiCilS I b M Ibis technology would $ bs sbledlv s.
• This l.dinology Is aol ,aoon nsnd.d br the keslm.nl oh esofe .thtia.s w$ kh confab hl i
concsnltoflons of instdlo sndloi ciganic 10mw of msrcusy. unless wthsisns we coofrolad.
‘
V ATiE
MITMI
paso
Os
pilot
avL Ao
CONCENIAATK*5 M0VM
£FI NCY
eøa 1 *N) p
£IVtt*Nt 0
• Tb. g*iyslcal and i thsndcal d wsc*srtdks of Its condlusols of this I lSofibily
ot kidlcM• IbM this technology would $ bS sIlsdh’i.
‘This Isdinology is not Mconvn .ndId let lbs liss*meot oh waof• niduiss of h onI.In hIØi
concenliallons of nislalk sndloi otgaidc bosms of nw.cuty. unless aithalons a ,. rrng,-oI.d.
-------
FIGUHE 6: FINAL CONCLUSIONS BY TREATMENT TECHNOLOGY
CHEMICAL EXTRACTION AND SOIL WASHING
t11AtA11fl 0 10 1
1 11* AIS SCUS
AVM*II1 DAtA
aviaao cosscim*aimso
AND % MUD VALI
OIMIA( OSIIRVA1IOSS
Pa OLAN
e4u P R1E0
A Al s
‘soil
PAIRS
100 N
! PI.O,
.. .O%UI&I
AVI RW)1 AVERAGE
COC1NlM1 H$ MMCNM
UP’, 1UC NCV
NII*NI 170
1FIII NI
• This tw*mology Is potan 4y ciuediva on these c i*iantab* dali its from bsrith end..
• Sudaditlis may iwe 10 lii soil and ii ice soil pwmsciulilty.
• Pass his dill. airdsslon 01111 may coos ik Vsilmsct
S
UMO wNA ICO
mauss. IURAIS.
*SSII4I R
I l
.a
.
.j%P&0t
. .jj ruu
avi an E AvUaGE
wclalUtai$ NU M
S P ’
NILSNI 1900 7
£FIU NI 4.000
• ItO I.Chiciogy Is pdanl Iy ciuidive on thus c Iai nailis with lutist devskipmstt
• Some ci th. aval Is dils 1 w tO Vsal Ilty gmi ws baud on vuty high MIli con01ntmlons;
howevst conuldelillon shonki b. vn tie ability cite lsthdogy to Veil high Irifflal
ooi osfl l i l l ofle.
• lbs psestic. ci oil fri the milde snhanc s ismoval.
• The IstiWVal elIIoiancy dwsases ii Se p.c.d ci days and daysy sills kiasasss.
Sudadanis may a s 10 the soil and s k s soil pstm. ’ly.
HMonLNA1EO
Pi*I LL CMIQL
aM 5. THa I.
SAG OTh(R POlAR
aso aics
uso
lOOn
ot
. .!%FULL
AVERAGE AVERAGE.
C SC1NIRAtØS MU M
‘“ “ ‘
U5N 1 •
IFFLISNI I l
.
• Dali wits from psnlat* wcph.nci ndy.
• This l.dmology Is pdsntlly elledivs on these co, wilnwds. elpedoly 1w VeilIng sandy soils.
• Suiladeds may a isie lithe soil and is ic soil pstm.abiuty.
HMOwNA IID
uHArn
coupo ims
PAIRS
AVERAGE aviaao
CGCCNIUIOS NU M
UP’S 1II I.SCV
NUSNT 2 0 55
EFFLISNI O2
• ltds lithidogy Is poisnilally sffsdvs on tue cw an nsMS buS ol dali we from bsndi scull.
• This Nduiology may be mite akal4s to sandy soils.
• Susladitis may adawe lithe soil and ts&rs soil psimeabilly.
• Volfile siOsIsne may ooot &ubi 11151401.
.
S
HMOOENAIEDCTQC •
MPHA1 L ETl I4•
ESTERS.
KEtOI 55
w
PAIRS
j %PIOT
hAL
AVERAGE AVE
CD CENTRAIa 1 MMCWU
9 9 1 ’ , IFOCItCY
ML1*Nt 0 0
£FFLI SNT 0
• Dali wits not available 1w tO vsaiahiilty ,ouç. Data br conçounds with sbi tw
phyi 1 and dwn cal thatadwlsI suggest thil this isdiiobogy Is potentially sffsdlvs In
caslain siSiallons.
• Surisotitlis may itturs to the soil end ,.daci soil pstm.abl lty.
_JPAIR S AVERAGE AWl RAGE
CCNCENtRAV N$ RIMaJA& • This l.dinology Is potenliuly .II.clIv. on hess wdanilnanls. However. dali its limited end
99 1 LFIC iSCV tesItig was ccn 4sd at bench sonis.
vOl1 S
Q%PtOT IU NI 5.900 99 %
LIFILANI 47
-------
FIGURE 6: FINAL CONCLUSIONS BY TREATMENT TECHNOLOGY
CHEMICAL EXTRACTION AND SOIL WASHING (CONT.)
T ala.Lm
wasia aim scais
Dali
LVIRAGI ccisc(sflaaflo.4 lN—
AND % MOVAII
oliasas. ossaRvanoss
i iiinc t&cs
AM SMPII
0
A jAt s
..j PA
-— %iaI I
%PLO ,
2 II j
avi NAGS avi aaci
CINIRAI 3 RIMOVU
‘ 4 Ill .5’ V
uu i $700 as
EFRUINT 3S
• This technology is polenhially on thesa oofltaT*laMS bi4 neatly 4 1a s horn bench
• Vo$a le snisslons may o w diakig beaSneni
• Surlactants U Y 5t 5 $0 thi sod d educi s c M pamsabduly.
.
t_
AICUATCI
I S)
% 5IJ 4
.i S PLOT
SILIL
AVINAol
0 NIMtad iI M
I1IC1$ V
NIIJIN I I 600
EFILIJIN1 3 5
• 1 sdusology lip ‘ 5 ai •ea an* S ciih k*thII development.
• Some ci Uii available d Ma lot Ida vulabIlq soup was based
how.via, — $0 the d M 1 1 1 ci lie tithiology $0 DIM high b ftlel
• IW*S may asliese to lii toP and iaiI 1 Ce saM pamsablily.
OIIEAPQAN
5(0(5 HA l OGENATID
on
uJw
.!
s PLO ,
% flJLL
ooeCENTNAtg c AIUOVAL
l l,•
NLIJINI 1
IF UtN , ‘5,000
• This technology Is polentlally silecilve on these oontavdnants.
• Some ci the avsUab’e dMa lot s lisatablily goup ws based on vy high loidal sadons
howiva C 5*10 ( 5 shosid bs given d i. Isthialogy so 5 54 hIgh friMlel
-
• Tiea nsnt silecdven.ss should be svakiased on a osieby.ca.. basis.
• Suilaciants may a isme to ii. i educe s a M pamsabMIty.
Volalle endsslons may o z dii ig Lea 5n.nt
NON Al1t
METALS
lwu
PLieS
j %wau
. 5,107
. ...!sraL
LVER LVIR
0(NINAT 4 AlMovat
t11C •
NLUINI 3
EFFLUENt II
• This tecinology Is potentially sffeaMve on these oontidnstds.
•WaIasidH 3 SO 4 MapHol I.Owda3.ImoIuIa1 oIEDTAMapHoll2.Ocai
both *ilevs good levels ci sivecilon.
• kon (12%) may e wIva ,sgenaahlon ct4ems.
vczaiit
METALS
(Will
— PA IIie
i %acH
0 se oi
. %FULL
AVERA AVE
P NTRATCN5 RIUOVM •
cFIcvCY
NLUENI 71 is
LIFLUINI
• This isthiolagy Is poIentI y sifeclive on hiss COnIwTdflanIs , sspedally lot sandy sods
• Silly and ciaysy soils we not as sileclvsiy sealed.
•As.nicmaybs ftIt$0sa1iaddu.tolowsoii llty.
p.
Rs c i 5iMoDiuV
-------
NIAMED
‘ -I
*vl
CCI fNffithalm
REMOVAL
lfl MOY
0
FIGURE 7: FINAL CONCLUSIONS BY TREATMENT TECHNOLOGY
IMMOBILIZATION
,ma,maunv
* IR Aim SCMI
OF £VM AiLS 0*11
w..
Aim MOVA1
REmAM OSUUIV*IIOl
NON POLAR
I4AiooII uto
*IK) MAIEI
.i,
- 4 PA
tOO
j..! % riot
! .iit
AVI
COIiCE N I RAIloim P*&IOVM
t*w y
s.tuuu 35 03
EfflUENt 055
Data wit• lit dilorob.nz.n. o14.
• Thea. data sug sat that this S .ctrnology is potsmk)y .51.4). kt atlas sitiatlons
p 1 CI SIty whii• ii . hillil conowdsatlon Is low.
• Ihe ksalmenl mcbanlam kit SM mei. youth conipowids may be voIaIII atlon as ipos.d to
kiwnobLia51on. Lb pohitlion coatmi syatw* nisy b. n.c.uity i i atnkidz. cross media
hT *I1$ ko.n tM . volallis .ndaalons.
• Nianohiaiiwiendedthatthisisdinolog bes.isdidWthlsisU*onIySrootthUy rOuppms.nL
PCi ..
eui ooiitmo
wornim. ii.m*i.
Aim Dt I
p i tci one
SW ill
Pacm
.
SENCH
% PtOT
0 % IJ
aviasos AVIRA O O
C0NCINRAT IS R I MO VAi
“‘ ‘
1URN 1 —
IflU. SNI
• rconçMss k51v• dots ware sva*at t I. swshaal• ksotmsgd •Nsdloonsu. Thea.
quan at),. data and a hJIonaI ia otlve kilormatlon uug sat that this I dinotogy is
Ot•otLill elisdbw• is c .dsln sluotlons parihailaily w$ism lb. kiblal concsnkotlon is low.
• I is not isconinsnd.d that his l.dmology be .asd.d I this is Sb. only Ireotatihity pcr prosont
HMOOEN*IED
PIiP it1. £M$ $
*MII I. TM(*a
Aim OlliR
AROM*1 .
I w l
OO itNOli
% Fill
L V I RA i t AV E RARE
C( INIH1l im REMOVAL
I ii W4 LllI iICV
is at
EFflUENT I I
• Data warn bern p .Machioroph.nol only This. data suggsot that this S.dinoloqy is
•Uar * is c.dabi sluallon&, p.dkub.Iy there Sb. ki&W conosrdrsllon is Sow.
• 5 slis4Ivenss at this Isdinology on Sb... *av*w s may b. tUarsat than his data
Iqily. is to hi dSons ii Sb. list canatlons.
• his not recommended Shot this Ischnology be s.Isd.d 51 this is the only V.otdithy polç present
WAOREN*TtD
i. u*iic
cos. poiacs
I _.
•AJU
.1!!s LNCH
. ..i
•‘ai
AVE RARE
CONCErn RAt I4 RUiOVM
IIIEtNCV ”
EFFLUENT On
• Though this. data suggsot that this t.dinctogy is ptOMlaIy iftec$vs hi cerlabi sluahons
parhwlasl, whir. hi. hut concenVotlon is low.
• The re4+n. hi mobility may be is So vototihastlon ol the volatile oon isundi s$ng Veotimot
• polohon con oI sysl.nw may be n.c.ssiry to rè kitl • cross media brilischs horn
tiwas votoll. ..nlstone.
• I is not i.oonvnsnded Ib M this Isdinology be s.isd.d IS Ibis Is the ouil tt.otê y goi i pteunt
NMOGENA TE OCYCIm
AAIPIM1 L tiimi*.
tSTIflih
anal’.
(Will
0% IENCH
.! ftOT
AVERAOI £VIRAOE
•
UICtNCV
OFIU EI IF
UFIUEN1 0
• Dais wars not svddiis tar this keotatily poiç. Data kit compounds mOb shidsi jthyalcal
and diendcal theraoteiIat s suggest Shot his l.chnobgy Is poseidloly .Ileclwe is ceilais
sluallons pailloatsilg where She kdulel canosnttstlon is low.
• I is not vecoswnonded that this technology be seisded II IbIs is lbs only tresichhuly ‘oiç pr.sant.
a
..O%P .0T
%Fi*L
.DstawsrnnohavaIelorthistrsatt lhSygroiç. DMaIorconpoundss.Ih5bPhY1 1 a 1
and diarntcal tuiradidstks suggest that his t.thnology Is potanilaly elfadive is Cirisli
aluMina peilicidarly where lb. Initial concanVatlons s ’s low.
if ILUIN 1 _______
-------
FIGURE 7: FINAL CONCLUSIONS BY TREATMENT TECHNOLOGY
IMMOBILIZATION (CONT.)
TMAIAJTV 000IP
01 SCILI
avsaa.ai,i oa,a
avs. 00III1NliAI ss )
%
.
osa.s.sa. Os.IivanOeS
• Rnocycic$
AM)S01P%I
NON HAl 001 HAlED
AIlOUA5s(
tV aOfl
!! PNR$
W N
% PLOT
s itit
LVIPAQE
CQ LNiI4Algos NUOVU
— I I 1 tt v
73
smiain •
• Though 111 . dais sugg.M thai this t .dlnology is pai.ntIalIy slisdlvs hi csal.ln siluadons.
p .dlOJIsstV *hsii lb. mmii C00cinhsLIon I . hiw, S1i. 1 .dudlois hi mol Ity may hi L ii to lb.
voIsliliallon ol vol . 11 i cigank ann ounds duihig ksatmsit
• Al, polullon Coflhlol syslsti* may ha n .c.uwy to n*ihi zs ciosa mills hTlpadI from this. iolaius
• N I. n eiconvnsndsd thai this Ischnology hi s.isdsd N IN. Is lb. only trsiithiNy gmij ssont.
A UAIC$
w i
.Z Pains
..j iov
%ILI(
AWR I LVI 1 1*05
co, easusatmHA 01NOV 51
..i ,n 3
Euii*wi •03
• ii. dais sugged that Ibis Iscâinology is paisnUsly SIISdIVS hi ciit.ln siusUons psauicululy
,uluus lb. killal ca nhjailoji Is low
ot. n.oi.m
iai HAl 001 14* 1 10
0 0 0M b
cosap acs
4*0 5)
PDJ III
- on, ,
P1101
VIA I
AVIR*0& LVI 11*01
C lNlR*J 01 U0yN
iipcg. v
s.iiiut 20 77
If VIII NI
• Tb. .. Nn .d dMa suggsai that Ibis Isdinology is paisnUaly iflsdlus hi csdaln sluadons psidcul.tly
whets Sb. hiNhal concinliailon is low.
• lii ti.Mmsnt msclianhsm is a lbs mc i i vol.1k conçoun may hi vcIaIlizsUon as cppo..d Ii
krwuobilssllon Ak pcii l.n coi sd syslon* may hi nsc.s.say to ndnkiü. cm.. msdla hipacls
from lb... volahlls .n slons.
• N is nM mcomaiandd that this I.duiology hi s.isd.d N this Is lbs only ksahthihty giotq prs..ol
NON V AtNE
NEI a A.1
“
•
VOIA IIE
UUA IJ
IWI I )
PAlMS
S FLu
Pus.
S SENON
AV IMbE LV I 11*0. 1
COICINTRAIOHA 01NOv51
—
IFFLuiNT 0
AV IR*0E LVI RAMS
CCIIC INIRAfloss 01NOV51
IPP IUICSNCV •
• m ’s I.chnology s wsi on lb... coaitammsats.
• l4l i Isvls aloE and sas. may k oiIs,s wlh Iha Focass.
. Si4t*4 .ah is ol 11g , Zn Cu. said Pb may Wad... wih lb. pozzolan w1on.
a lUgh sushi c i sultaiss may Wed. .. *4th lb. p .oc..s
• Piahusaim.ni may hi ,.qulh.d to hic..ai. pt4
• Baud on lbs phd scsi. data thIs I.chnoisgy woalis wiN on this. COntan*is ,da Soms bsndi scais
data was nd isçt.sanhshlvs c i hImum coci*lons.
• high I .vais ci ci and .ss may hitail... wih lb. poc.u.
• Sakbl. saks ci 11g. Sb, Zn, Cu, and Pb may Wed... wIh lb. pouolan
• High levels ci suhIM .s may kui.dw. wIth lb. pmces..
Piehi.almsaui may hi i.quksd to Incaiue pH.
— S VIAL
OEII NI 110 03 .
1FF1I M I 4
14 U 4ll
-------
DrattGuidance on Differentiating
Alternative Technologies for the
Removal Program
-------
( )
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
SEP 3 1987
OFFICE OF
SOUO WASTE ANO EME OENCY ESPON
MEMORANDUM
SUBJECT: Draft Guidance on Differentiating 1ternative
the Removal Program (9380.2-05)
FR OM: Timothy Fields Jr., Director
Emergency Response Division
TO: Oil and Hazardous Materials Coordinators
EPA Regions I — X
Superfund Branch Chiefs
EPA Regions I - X
Captain Rbbert L. Starch Jr., Chief
Marine Environmental Response Division, USCG
The attached document provides draft guidance to removal field personnel
to differentiate among alternative technologies, Identifying them as available,
innovative, or emerging.
The guidance describes criteria used for determining the developmental
status of a particular technology. Among the topics addressed are: definitions
of alternative technology and the terms - available, innovative, and emerging;
Identification of Alternative Technologies; and a Si.aimiary of Alternative
Technology Contracts Procurement. It Is expected that this guidance will
become part of the forthcoming Alternative Technology Guidance.
Please review the document and provide conunents by aIer 25, 1987, to
Elizabeth Zeller of my staff. If you have any questions, Elizabeth may be
reached at, FTS 382—2190.
Thank you for your attention to this request.
Attactmient
cc: Russ Weyer, HSCD George Turner, USCG
Art Weissman, PAS Hans Crump, ERD
Lee Tyner, OGC L1nd&Garczynsk1, ROB
Joe Freeóuan, OGC Colleen Carruthers, EOr
Lloyd Guercl, OWPE Mark Mjoness, WOS
Frank Biros, OWPE Dick Mueller, PCMD
Alan Corson, OSUER Tom Sullivan, PCMD
John Klngscott, OERR Joe Lafornara, ERT
Royal Nadeau, ERT
John Riley, RSCB
-------
OS
WER
Os
WER
OSWER
DIREC
TI VE
DIREC
TI VE
.
Uflht Suit.! Pt,a. As0cy
arE PA OSWER Directive Initiation Reauest 9380.2-05
2. Oriqutale’ hWdYMStS0I
of Conui Po.un M*. C Office Numb,,
El .zabeth Zeller WH—548/3 OEaRIERD 382-2190
3. flu.
Gu.Ldance on Diffexent.i .at. .ng AJ.ternative Technologies
4 Sauom.r Ow.cuv .1L,civ b,.VaSC.maita19t.’ aa .I The purpose of th i.s document L5 to prov .de
removal program field personnel wLth guidance on identifyi .ng alternative teckrnologa.es as
e .ther ava.Llable, innovative, or emerging. This document presents general criteria
based on developmental status. Use of the classification cr .teria wiU. assist field
personnel in technology selection and procurement. In addition, th .s document will
direct field cersorinel on how to obtain the necessary concur orices and a n va1s fnr the
5. as -uui use of an a1ternat .ve technology.
SuDerfund, CERCLA, SARA Alternative Technolocy
6a Quas u m Owwti, . $usvIsls Pra .o i .cuv . 1s9 t4o What eruct... (n jn sr. tei.j
b. Do.. it ouicm.ri Prr. so as Oursata . s)P E3 ‘“ 0 ° wpur O.rsati . 1 fnt.,,ev .wi.j
9380.2—1 Adm.i.zu.strative Gui.dance for Removal Program Use of Alternatives to Land
Dist osa1
7 Dr Ift Lav,t
0 A — 5 q ed by AA/OAA 0 — Signed by Off tea Director C — For S Casnntsm 0 D.retoom.nt
Thi. .eu .st M.at. 0SWE O.rscb...s Svstsm orrnst
8. Signature of Lead Office Directivis Coordu’ator
Oat.
am itt. Tid otacorov.ngOfficia$ Jr., I
1
C I
‘I
-------
• — — DRAFT”’
S pcernber 4, 1987
CUIDA 4CE ON D1FFERE 4T1ATING ALTER 4ATZVE TECHNOLOGIES
FOR THE REMOVAL PROGRAM
1. PURPOSE
The purpose of this document is to provide removal program field personnel with
guidance on identifying alternative technologies as either available, innovative, or
emerging. This document presents general criteria based on developmental status.
Use of the classification criteria will assist field personnel in technology selection
and procurement. In addition, this document will direct field personnel on how to
obtain the necessary concurrenc!s and approvals for the use of an alternative
technology.
II. BACKGROUND
There is concern in the scientific community and the general public over the long-
term reliability of containment technologies (e.g., landfills, containment lagoons)
used as disposal options at Superfund removal sites. Because these and similar
disposal options do not render the waste non-hazardous, they are nor permanent
cleanup solutions. In response to these concerns, the Superfund Amendments and
Reauthorization Act of 1986 (SARA) explicitly addresses, promotes, and sponsors the
use of alternative technologies to effect permanent cleanups.
An effort is under way by EPA to maximize the use of alternative technologies at
Superfund removal sites through amendments to the National Contingency Plan (NCP);
development of policies and documents such as the Alternative Technology Guidance,
Land Disposal Restriction Guidance, and the Engineering Evaluation/Cost Analysis
Guidance; compliance with the Resource Conservation and Recovery Act (RCRA) and the
Toxic Substances Control Act (TSCA); and implementation of the Superfund Technology
Transfer program. The alternative technology provisions in these policies and
programs were developed to encourage permanent cleanups in a safe, cost—effective
manner.
-------
•..a a. Ft.....
September 4. 1987
II!. DEFINITION’S
The Superfund Amendments and Reauthorization Act of 1986 (SARA) defines an
alternative technology as a series of unit operations or any unit operation chat
permanently alters the composition of hazardous waste through chemical, biological,
or physical means so as to significantly reduce toxicity, mobility, and/or volume of
the hazardous waste or contaminated materials being treated.” For the purpose of
this document, alternative technologies are defined by their development status. The
Superfund Innovative Technology Evaluation (SITE) Strategy and Program Plan
-identifies three levels of developmenc
(1) A vaziable Alternative Technology - A technology, such a.s several forms of
incineration, that is fully proven and in routine commercial or private use;
(2) Innovative Alternative Technology - Any fuLly developed technology for which
cost or performance information is incomplete, thus hindering routine use at CERCLA
hazardous waste sites. Art innovative alternative technology requires full-scale
field testing before it is considered proven and avaihble for routine use; and
(3) Emerging Alternative Technology - An alternative technology in an early stage of
development; research has not yet successfully passed laboratory- or pilot-scale
testing.
IV. CRITERIAFOR DIH ERENTTATTNG ALTER (ATTVE TECHNOLOGTES
-‘ 4rQ
The criteria for classifying a technology as a a- labie,t innovative, or emerging are
based on the developmental status (including performance evaluation of the process,
i.e., types of tests performed and the results). The criteria listed in this section
are subjective; all technologies may not meet all of the criteria in a particular
category based on the performance evaluation. However, by incorporating good
engineering foresight and past performance records (particularly from other CERCLA
funded Sites), one should be able to decide which category is most appropriate for
that technology. The number of uncertainties will ultimately be the deciding factor
between available and innovative or innovative and emerging. Since emerging
technologies are usually in the early stages of development, it will not be difficult
to distinguish between available and emerging technologies. In general, any data
available for emerging technologies are based on bench- or pilot—scale tests, whereas
2
-------
s_ _ SD RAF_I *s
September 4, 1987
performance and reliability records for available technologies at the full-scale
stage are obtainable for review.
The OSC should be fully cognizant of the following information prior to determining
the category, of the alternative technology:
I. The types of tests required before full-scale implementation;
2. Modifications to the process or technology necessary before
implenentation and
3. The performance record of the technology.
It should be noted that although a technology may be classified as available or
innovative, some modification of standard or past operating configuration is usually
required to achieve successful results. There will be a different set of concerns
with each technology, depending on site conditions and the contaminant present. The
attainability of the technoLogy (e.g.. in a particular Region or State) has no
bearing on its classification as available, innovative, or emerging. The provision
of various levels of cost data, however, may allow for the upscale of innovative and
emerging technologies.
Generally, available technologies should meet all the criteria Listed below;
innovative technologies would meet most of the criteria, in whole or in part, while
emerging technologies would fail to meet any of the criteria sufficiently.
Application of the criteria is shown in Exhibit 1. Good engineering foresight and
professional judgment in conjunction with the criteria will be required to make an
effective determination of the appropriate category.
The criteria for differentiating alternative technologies are:
1) The technology has successfully passed bench-scale testing.
2) The technology has successfully passed pilot-scale testing.
3) The technology has accomplished full-scale waste treatment under
site conditions which did not differ significantly from site conditions of
previous applications.
-------
s DRAFI
September 4. 1987
4) The technology has been used successfully to treat the same concentration of
contaminants under site conditions which did riot differ signiflcancly from site
conditions for previous applications.
5) T.De technology is routinely used at CERCLA hazardous waste sites.
6) Operation and maintenance records are available for review prior to
implementing the technology.
7) The technology is generally available in the commercial/industrial market.
8) The technology will produce emissions/effluents that are easy to manage from
environmental, cost, and health standpoints.
9) The technology is a valid comparison to previous methods of disposal in terms
of providing better treatment or destruction of hazardous waste.
10) Demonstration and performance data are available for review.
V. IDENTu..1CATTO 1I OF ALTERNATTVE TECHNOLOGIES
Information on potential alternative technologies for removals may be obtained from
various sources, such a.v the Removal Alternative Technology List; ORD Publications
Announcement and Technology Transfer Newsletter, ER.T Technology Bulletins; the
Superfund Regional Technology Transfer Contact; the Superfund Technology Transfer
Program; the Superfund Innovative Technology Evaluation Program; various industry
publications (trade journals); or discussions with OSCs.
Alternative TechnolpQv List
An initial compilation of known technologies developed by ORD is shown in Exhibit 2.
The technologies are identified by their treatment process and development status,
and were constructed by interpreting scientific data and information currently
available. These tables are presented in draft form and will be replaced with a
final version as soon as they become available.
4
-------
September 4, 1987
Technologies are always evolving as development continues and improvements are made.
Because the developmental status of a particular technology may change, the
technology’s original classification may also change. For example, technologies
originally classified as emerging may continue to develop through pilot- and full-
scale testing. If further tests are successful, the technology may be classified as
innovative. It is important to note that although a technology may be classified as
available for the treatment of a particular waste stream or media it may, however,
be classified as innovative for another waste stream since its performance for treating
the latter may not be fully proven. As technology development and improvement occur,
the information in Exhibit 2 will be updated and periodically distributed to all
Regions.
VI. SUMMARY OF ALTERNATIVE TECHNOLOGY CONTRACrS PROCUREMENT
The approval, procurement, and use of an alternative technology is dependent upon the
technology’s development status. This section describes contract procurement
procedures for available, innovative, and emerging technologies. Exhibit 3
summarizes the concurrence procedures for all of the technologies.
A. Available Technologies
Generally, the use of available technologies is supported by Headquarters and
procurement/implementation is straightforward. The majority of removal
actions involving available alternative technologies are conducted through
cleanup contracts (ERCS, Regional, and Site-Specific). Non-competitive
subcontracrs, fully documented by the contractor to justify sole source
procurement and to verify reasonable costs, may be used.
B. Innovative Technologies
To use innovative technologies, (or a technology for which the development
status is uncertain), Regions must consult with ERD and obtain Headquarters
concurrence. The Regions are required to send a memorandum to the Director of
ERD, outlining the technology. The memorandum should contain as much relevant.. -
technical and site information as possible. Technical information necessary to
fully review a technology may include, but is not limited to: performance
evaluation of full-scale testing; results from past usage at CERCLA—funded
removals (if applicable); bench— or pilot-scale test results specific to the
site conditions and contaminants; and potential and/or known modifications
)
-------
• S _SD RAFr
September 4, 1987
necessary before implementation. Copies of the memorandum should be forwarded
to the Chief of the Environmental Response Team (ERT). the Procurement and
Contracts Management Division (PCMD)I the Regional Coordinator. and the ERCS
Project Officer. The ERT will review and evaluate the technology before
approval is given for its use. Reasonable costs must be established for the
proposed innovative technology. When the cost of the technology exceeds
3500,000. consent by PCMD will be required, and an audit of the vendor’s
proposal must be performed by the Office of the Inspector General.
C. Emerging Technology
It is important to note that ERD-and PCMD must be consulted before deciding to
use an emerging technology as an option. The Superfund program generally does
not sponsor emerging technologies with the possible exception of demonsuatioxi
projects and performance-based contracts. These contracts require specific cleanup
and/or treatment achievements as a basis for payment (performance-based contracts
may also be considered for available and innovative technologies.) Only where
stated goals are met do contractors receive payment.
An engineering evaluation/cost analysis (EE/CA) is required for non-time-critical
removal actions (actions which allow at Least a 6-month planning period before on-
site action must be initiated) regardless of the technology’s status. Procedures
for drafting and submitting such an analysis are described in the upcoming EE/CA
Guidance for Non - Time-Critical Removal Actions .
Procurement and contracting considerations are detailed in the forthcoming
Alternative Technoloev Guidance .
6
-------
I. BIOLOGICAL Tt !NT TECHNOLOGIES 1IV k
—
TECHNOLOGY APPLICABLE CONTAMINANTS QUALIFYING FACTORS PHASE S MOBILE REFERENCE
Activated Sludge Soluble organics in dilute aqueous waste DOD c 11,000 ppm. Re- A X 7,8,10
streams (.c 1% suspended solids). quires low concenira.
tions of heavy metals,
PCDs, pesticides, oil
and grease.
Output sludge contains
heavy metals and
refractory organics
which require further
I real me nt.
Aerated Lagoons Industrial wastewater, organics with slow Requires large area. A 7,8
biodegradation potential, soluble organics Unsuitable for solids.
in dilute aqueous waste streams. Requires a temperate
/ climate. Output sludge
contains heavy metals
and refractory organics
which require further
treatment.
Aerobic Treatment Aqueous waste with low levels (ROD < 10,000 Requires consistent, A,! X 1.10 .15
(sequential batch ppm) of nonhalogenaled organics and Certain stable operating
reactor, Iluidized halogenated organics (i.e., phenols, conditions.
bed, fixed film formaldehyde, PCP).
fluidized bed
with/without
activated carbon,
aerated biofilm
reactor, membrane
reactor)
Anaerobic Aqueous slurry with low to moderate levels Requires consistent A,1 X 1.2,8.10
Treatment of non-chlorinated organic compounds con- stable operating
(fluidized bed, tajning less than 7% solids. conditions. Unsuitable
fixed film for oil and grease,
uluidized bed aromatics and long chain
with/without hydrocarbons. Output
activated carbon) sludge requires inciner-
______________________________________________ ation --
PHASE • Phas, of Development. A — Avaitabl . I — Innovative, E — Enisiglag ‘MOBILE — T:an ,pO ,S.bI.
-------
I. BIOLOGICAL TI NT TECHNOLOGIES DRA T
TECHNULOGY APPliCABLE CONTAMINANTS QUALIFYING FACTORS PHASE’ MOBILE REFERENCE
Composting Aqueous sludge with less than 50% solids, Requires nutrient A X 7,8
non-chlorinated hydrocarbons, high organic supplementation. Output
wastes including oils, tars, and industrial sludge contains heavy
processing sludges. metals.
Enzyme Treatment Soluble organics in dilute aqueous waste Requires stable influent E
streams. concentralion.
Genetically Requires pretreatment
Engineered removal of heavy metals,
Organisms: oil, grease and VOCs.
- Mycorritizal Soil-entrained hazardous waste constituents. E 2
- Organo- Organomercurial-conlaminaled water, soil, E 2,12
mercurial and secure burial sites.
Detoxifying
Dacteria
- PCB Degraders PCfl-contaminated soili. E 2
Soil Detoxifying Various organic compounds in soils. E 2
Microorganisms
- Yeast Strain Halogenated organics. E 5
- White Rot Toxic or refractory balogenated organics E 2,4,12
Fungus in soil (i.e., 2 ,3 .7,8-TCDD, DDT, mirex,
(Pluuierochaele I indane, hexachlorobenzene).
Chrysosporiurn)
PhASE • 01 DoveIopm nh. A n AyauIaLj.. I • Innovalive. E Emerging ‘MOBILE — I,anaporh.bI.
-------
— ___ I. BIOLOGICAL TF ‘IT TECHNOLOGIES DRL
TECHNOLOGY APP ICABLE CONTAMINANTS QUALIFYING FACTOAS PHASE’ MOBILE 1 REFERENCE
Rotaling itiologic Biodegradable dilute aqueous organic waste Umited to low A X 8,10
Contactor including solvents and halogenated organics. concentrations of
heavy metals and
concentrated refractory
organics. Unsuitable
for sludges or solids.
Trickling Filter Soluble organics in dilute aqueous waste DOD < 5000 ppm. A X 8,10
streams with less than 1% suspended solids Output sludge contains
including solvents and halogenated prganics. heavy metals and
refractory organics
which require further
treatment.
Waste Stabiliza- Soluble organics in dilute aqueous waste / Not known. A
lion Pond streams with less than 0.1% solids.
‘PhASE • Phas. ol O.v.Iopm.nI. A • Av.,habhø. I • hnnovahlvo. E — Em.iglng ‘MOBILE • TIanipoiI .bI.
-------
II. CHEMICAL TRE u (TECHNOLOGIES
TECHNOLOGY APPLICABLE CONTAMINANTS QUALIFYING FACTORS PHASE • MOBILE’ REFERENCE
Ch lorinolysis Concenirated liquid chlorinated organic waste Unsuitable for solids 1 8
streams with low conirations of sulfur and and lars.
oxygen. Unsuitable for benzene
and aromatics.
Output carbon
tetrachloride can be
recovered.
Dehalogenalion Ilalogenated organics in soils and sludges Requires heat and ex- I X 1,2,4,5,10
that are partially dehydrated (i.e., PCQs, cess reagent.
dioxins).
Electrochemical Ilalogenated organics (i.e., PCHs). Not known. E 13
Dehalogenalion
Electrolytic High concentrations cyanide (10%) and Suitable for low solid A 1110
Oxidation metals wastes. content waste.
Hydrolysis Solids, soils, sludges, slurries, or liquids Requires careful handlin A X 1110
coniaminaled with organic compounds. of strong acids and
alkalines.
Reaction is performed a
high temperatures and
pressures requiring close
monitoring.
Ion Exchange . Aqueous organic or inorganic waste streams, Suitable for liquid A X 1,7,8,10
principally metals. waste only.
Lignin Adsorptio Aqueous organic or inorganic waste streams. Not known. E 2,5
Microwave Organic liquids or vapors. Suitable for small E 5
Heating Process quantities of highly
toxic waste and material
recovery.
• i p.v.topm nl. A — AvIlIa I. I — Innovalive. £ • Imcvgung ‘MOaILF • Tiansporisbi.
-------
II. CHEMICAL TRF 1 TECHNOLOGIES
TECHNOLOGY APPLICABLE CONTAMINANTS QUALIFYING FACTORS PHASE’ MOBILE 3 REFERENCE
Neutralization Corrosive liquid wastes both acids and Unsuitable for sludges A X 1,7,8,10
bases. and solids.
Requires corrosion
resistant equipment.
Oxidation Dilute aqueous waste (c 1% waste) containing Requires controlled A X 1,1 .8 ,10
(chlorination, organic/inorganic compounds. reaction conditions.
ozonalion, Suitable for liquids
hydrogen and sludges only.
peroxide,
potassium
permanganate,
chlorine dioxide,
hypocli loritcs)
Photooxidation Organics and inorganics present in teachates Not known. E 2,5
using irradiated and industrial sludges.
semiconductor
oxides
Polymerization Organic compounds such as aromatics, Application is limited I 110
aliphatics, and oxygenated monomers, to spills.
Precipitation Aqueous organic and inorganic waste Requires optimization of A X 1,1,8,10
containing metals. the reaction ph for the
specific mix of metals
present. Output sludge
requires further treat-
ment.
Cross-reactivity may
occur for mixed-metals
content waste.
Unsuitable for sludges,
tars, and Slurries.
‘l’iIASE • Ph. e c i D.v,Iopm nI. A • A aiIabIe, I • Innowalive. E — Em.igin ‘MOBILE — Tisnspc:ItWe
-------
II. CHEMICAL TRE I TECHNOLOGIES
TECHNOLOGY APPLICABLE CONTAMINANTS QUALIFYING FACTORS PHASE S MOBILE a REFERENCE
Reduction Dilute aqueous waste stream Containing Applicable to inorganic I X 1 ,7 .8 ,10
(sulfur dioxide, inorganic compounds especially metals (<1% waste only.
sodium heavy metal concentration). Suitable for liquid
borohydride, waste only.
sulfite salts,
ruthenium
telraox ide)
UV/Photolysis Liquid waste containing dioxins. Suitable for liquids E 1,4,5,10,12
only.
Ultrasonic Ilalogenated organics. Requires controlled E 14
Dechlorination temperaftire conditions.
PIIASE — A Dovelopsn•nI. A — AvaII.bl. I — Innow a llwi. E — Em.iglng ‘MOBILE — Tianaporlable
-------
Air Flotation
(dissolved or
induced)
Dell Filler
Press
Cen lrifugaion
(bowl, basket,
disk)
Chamber Pressure
Filtration
(pressure leaf,
tube element,
plate and frame,
horizontal plate)
Granular Media
Filtration
Gravity
Sepa rat ion
(coagulation,
flocculation,
sedimentation)
- III. PHYSICAL TREATMENT TECIr
APPLICABLE CONTAMINANTS
Liquid waste containing oils or light
suspended solids.
Biological and industrial sludges.
Organic/inorganic liquids, slurries, and
sludges containing suspended or dissolved
solids or liquids where one componqnt is
nonvolatile. For example, wastewater
sludge, wastes containing immiscible liquids,
or wastes containing three distinct phases.
Wastewater sludges, or sludges with a
flocculated or adhesive nature.
Liquid waste containing suspended solids
and/or oil.
Liquids containing settleable suspended
solids, oil, grease.
iES (COMPONENT_SEPARATION)
QUALIFYING FACTORS
Liquid effluent may
require further treat-
ment.
Filter cake may require
further treatment.
Unsuitable for tars,
solids, dry powders, or
gases. Not applicable
for small size or low
density particles.
Requires pretreatment fo
suspended solids concen-
tration < 100 mg/I. Re-
quires frequent back-
washing.
Liquid effluent may
require further treat-
ment.
Unsuitable for heavy
slurries, sludges, or
tars.
TECHNOLOGY
PHASE
MOBILE
REFERENCE
Dewatering technology.
Unsuitable for sticky or
gelatinous sludges.
A
A
A
A
A
A
x
x
x
x
x
x
8
1,8
1,8,10
7,8,10
1,8,10
8
P hASE - Plies. oh Developineni. A — AvellabI. I — InIovpIlv .. E • Emerging ‘MOBILE a ltanspo ,IabI.
-------
III. PHYSICAL TREATMENT TECHNOL.. alES (COMPONENT SEPARATION)
TECHNOLOGY APPLICABLE CONTAMINANTS QUALIFYING FACTORS PHASE’ MOBILE a REFERENCE
High Gradient Magnetic or paramagnetic particles in slurry. Requires low concen- E X 10
Magnetic (ration of magnetic
Separalion materials. Limited to
a 15% maximum total
solid content.
In silu Soil Soils with low levels of organics or Unsuitable for dry or E X 1,2
Extraction morgan ics/metals contamination, organic-rich soils.
Oil Separation Immiscible oily liquids in water that form Not known. A X
an emulsion.
Vacuum Filtratioi Organic or inorganic chemical sludges, Dewatering technology. A X
(fixed media, metals and cyanides bound up in hydroxide / Unsuitable for sticky or
rotary drum) sludges. gelatinous sludges.
‘PhASE .e oh OevelOpiflIfll. A • Available, I • Innovaluve, C Emeia lna ‘MOIlILE — I,anipo,tah ,Ie
-------
Artificial
Freezing
Carbon
Adsorption
Colloidal Gas
Aphrons (CGAs)
(enhances air
stripping and
biodegradation)
Distillation
Aqueous and adsorbed organic and inorganic
wastes with relatively high volatility and low
water solubility such as chlorinated organics,
aromatics, and ammonia.
Sludges and soils contaminated with organicS
or metals.
Aqueous organic wastes (containing <1% total
organics and < 50 ppm solids) with ‘high
molecular weight and boiling point, and low
water solubility, polarity and ionization.
Soils contaminated with phenols, phihalale /
esters, aromatic hydrocarbons, aliphatic
hydrocarbons, chlorinated hydrocarbons,
amines and alcohols.
Liquid organic mixtures with low viscosity
that can be separated due to molecular weight/
volatility differences.
GIES (PHASE SEPARATION)
Limited to VOC concen-
tration < 100 ppm.
Suspended solids may
clog tower.
Not known.
Unsuitable for metals.
TECHNOLOGY
III. PHYSICAL TREATMENT TECi
Air Stripping
APPLICABLE CONTAMINANTS
OUALIFYING FACTORS
PHASE’
MOBILE 3
REFERENCE
A
I
A
E
A
x
x
x
x
I ,2,7 8,l0
2
1,7,8, 10
2
1,8,10
Hydraulic conductivity
of the soil must be
> l0 cm/sec.
Unsuitable for thick
polymeric materials,
slurries, sludges, or
tars.
PtIAS • Puiai. ol Q.v.Iopm.nI. A — Ayaulsbl., I — Iflflovaf,yO. E — £m.iglng
‘MO8ILC — Tvan poiIabIs
-------
III. PHYSICAL TREATMENT TEL... )GIES (PHASE SEPARATION) DR 1 :
-
—
TEChNOLOGY
APPLICABLE CONTAMINANTS
QUALIFYING FACTORS
PHASE’
MOBILE a
-
REFERENCE
Electrokinetics Soils contaminated with organic or inorganic Soil matrix must be I 2
waste, relatively permeable
and saturated.
Evaporation Organib/inorganic liquid solvents contaminated Liquids must be volatile. A X 1,8,10
with nonvolatile impurities (i.e., oil, grease, Unsuitable for tars,
paint solids, polymeric resins), solid, dry powders, or
gases.
Energy-intensive process
Freeze Dilute aqueous organic/inorganic waste Unsuitable for loamy, E 2
Crystallization solutions containing < 10% total dis— viscous or high solid
solved solids, content waste streams.
Mechanical Soil Volatile organics in sludge and soil. Effluent may require . A X 7
Aeration further treatment.
Metal Binding Metal-contaminated aqueous waste streams, Limited to metal con- E 2
leachate or groundwater. centrations between
500-1000 ppm.
Resin Adsorption Aqueous waste streams containing soluble Limited to low concen- A S
organics particularly phenols and explosive Iration of organics
materials. (<8%) and suspended
solids (<50 ppm).
Reverse Osmosis Aqueous waste streams containing <400 ppm Unsuitable for oxidants. I X 2,5,8
heavy metals, high molecular weight Requires controlled pil,
organics, and dissolved gases. low concentration of sus
pended solids, and no
strong oxidanis.
‘PhASE • ol D v.lopmenI. A . Av iIibI . I — Innovalive. E — EmesgIn ‘MODItE — lianspOilible
-------
Supercritical
Extraction
Ultrafiltration
Aqueous stream contaminated with single or
mull i-component dissolved organic wastes.
Sludge contaminated with oil 1 toxic organ ics,
and heavy metals.
Sludges, solids, or liquids contaminated with
organics.
I
Removes oils, metals and proteins from aqueous
solutions with dissolved organics, emulsions,
and colloidal particles.
Extracting solvent must
be immiscible in the
liquid and differ in
density so gravity
separatton is possible.
Suit bte for sludges
containing < 20 WI %
cil/organics and < 20 wi
96 solids.
Effluent may require
further treatment.
Suitable for waste
streams with low metal
Concentration.
Effluent may require
further treatment.
Limited to low concen-
trations of suspended
soils.
TECHNOLOGY
III. PHYSICAL TREATMENT TE
APPLICABLE CONTAMINANTS
)GIES (PHASE SEPARATION)
QUALIFYING FACTORS
Solvent Extraction
Steam StrippLng
1. \
PHASE I
MOBILE 2
—
REFERENCE
Aqueous solutions of volatile orgnics.
I,
A
A
E
A
x
x
x
x
8, 10, 12, IS
1,2,7,8,10
2,10,1 5
8
‘PiIASE — PIiu. ol O.velopmen l , A — Availatjl•. I — ln ow*IIwi. E — (m.sglng
‘MOBILE • I,inspoitabts
-------
p r r1 1
IV. STABILIZATIOWSOUDIFICATION/Eni.. JLATIOI1 TREATMENT TECHNOLOGIES
TECHNOLOGY APPLICABLE CONTAMINANTS QUALIFYING FACTORS PHASE’ MOBILE REFERENCE
Cement-based Treated sludges and soils containing metal Long terni stability/ A X l,6 ,10 ,l S
Fixation cations, radioactive wastes, and solid organics teachability is unknown.
(i.e., plastics, resins, tars). Lignite, silt or clay
increase setting time.
Dissolved sulfate
salts, borales, and
arsenates must be
limited.
Macro- Chemically or mechanically stabilized Encapsulating matrix A X 1,6,10
Encapsulation, organic, inorganic, and radioactive must be campatible with
Overpacking, wastes, waste. Long term leach-
Thermoplastic ability unknown, there-
and Thermoset- fore, waste storage must
ting Techniques / be considered. Requires
specialized equipment.
Pozzolanic- Treated sludges and soils containing heavy liorates, sulfates, and A X 1,6,10
based Fixation metals waste oils, solvents, and low level carbohydrates interfere
(Ilyash, lime- radioactive waste. with the process.
based) Long term stability/
teachability is unknown.
Sorptive Clays Ilalogenaled organic compounds and heavy metals. Long term leaching is a I X 2,5,6
(treated, problem, therefore,
chemically waste storage must be
modified), considered.
Vitrification Soils contaminated with organic, inorganic, and Limited to soils with A/ I X 1,2,4 . 10
radioactive wastes, high silica Content.
PIIASE 01 D.vDIopmo’ t. A — Avidabi.. I — Innovabva. C • Emasgln ‘MOBILE • TvanipotIaIiIs
-------
V. THERMALTRL TTECHNOLOGIES i.,. ,
TECHNOLOGY APPLICABLE CONTAMINANTS QUALIFYING FACTORS PHASE MOBILE REFERENCE
Eleciric Reaclor Soils Contaminated with solids and liquid Contaminated soil must be I X 1,2,4,10,11,
organics and inorganics. finely divided and dry. , IS
Electric Viscous liquids, sludges, solids, high ash Requires homogeneous I X 1,10,15
Pyrolysis materinls, salts and meals and halogenatecj I ’ waste input.
waste. Metals and salts in the
I residue can be leachable.
Fixed Dearth Bulky solids, liquids and sludges. Particle size must be A 8
large enough not to fall
I! through grate. II
Fluidized fled Organic solids, liquids, and sludges. Requires low water and A X 1,2,4,8,10,12,15
inert solid content. I
I
Industrial Granulated solids, liquids, and sludges. Requires low chlorine and A 1,8,10
Boiler sulfur content.
Ash content clogs system.
Particle size.
Industrial Kitns Spent pot lining, nonlialogenated oils and Chlorine and sulfur content A 1,8,10,12
PCD-confamjnated liquids and sludge. must be limited.
Particle size.
Infrared Soils, solids, and sludges contaminated with Primarily for solid organic A X 1,4,10,15
Incineration chlorinated organic compounds (i.e., PCBs, waste, Heavy metals are
dioxins, explosives), not fixed in ash.
‘PHASE — Phas. ol D .ve lopmenl. A — Avallibi.. I — Innovativ•. E = Emaiging ‘MOBILE • TiIn.pOrIabI.
-------
‘. • • , “ .r u
V. THERMAL TREAT TECHNOLOGIES ______ - ‘ : —
TECHNOLOGY APPLICABLE CONTAMINANTS QUALIFYING FACTORS PHASE’ MOBILE a REFERENCE
Liquid Injection Pumpable liquid organic waste. High inorganic content ant A X 1,5,8, 10, 12
heavy metal content must
be limited.
Chlorinated solvents cause
accelerated corrosion rates
Microwave PCHs Not known. I
Plasma
Molten Glass Organic solids, liquids, gases, sludges (i.e., Sodium sulfates must be 1 1,2,10,11
(i .e., plastics, PCIIs, asphalt, pesticides), limited to <1% content.
Inappropriate for soils
and high ash waste.
Molten Salt Low ash, low water content liquid or soiLd / Corrosion problems. I X 1.7,10
waste. Requires frequent bed re-
placement.
Multiple Hearth Granulated solids, sludges, tar, liquid, and Water, salt and metal A 1,7,8,10,12
and gaseous combustible waste, content must be limited.
Particle size must be
small enough to pass
through injector nozzles.
Not recommended for
hazardous wastes.
Plasma Systems Liquid organic wastes Liquids only, I X 1,2,1,10,15
(i.e.. pesticides, dioxins,
PCEIs, halogenaied organics).
Pure Oxygen Liquid wastes which require high temperatures Requires specially I X IS
flurner for destruction or have low healing values, engineered nozzles
to atomize the liquid
waste.
‘““.‘.I Ouv Iopme . A — AvgiIabIe, I — InAo;aIIv.. S — Em .rglng ‘MOBILE — Tranipo
-------
V. THERMAL TREA TECHNOLOGIES
TECHNOLOGY APPLICADLE CONTAMINANTS QUALIFYING FACTORS PHASE MOWLE RE EREt
Radio Frequency Volatile, tow boiling point, or easily de- Not known. I X 1,10
Thermal heating composed organic compounds in soil.
Rotary Kiln Solid, liquid, or gaseous organic waste. Containerized wastes are A X I,2,4,1 8 ,IO ,
difficult to handle. 1215
11 1gb inorganic salt or
heavy metal content wastes
require special consider-
ation.
Fine particulate matter
must be limited.
Supercritical Aqueous organic solution/slurry or mixed ‘Not known. X 1,4, 10,11, 12
Water Ozidation organk/inorganic waste. /
Wet Air Aqueous waste streams (4%) with dissolved or Unsuitable for solids, A X 1,7,10,11
Ozidation suspended volatile organic substances, viscous liquids, or highly
halogenated organic
compounds. Not economi-
cal for dilute or concen-
trated waste.
‘P hASE — PI s,. c i Oevclopm.vii, A — AvsIIabIa, I — InnovaUv.. E. Emss Ing ‘MOmIkE — Tianspodab s
-------
DRAFT
BIBLIOGRAPHY
1 TJ.S. EPA. Treatment Technology Briefs: Alternatives tO Hazardous Waste
Landfills, EPA 600/8-86/017, HWERL, Cincinnati, Ohio, June, 1986.
2 Pheiffer, Tom. Memorandum: One Pagers on Innovative Technologies, OSWER.
- - - December 11, 1985.
3 Klee, A. and Dial C. MemorandulTc One Pagers on Innovative Technologies,
ORD, HWERL, July 10, 1986.
TedhniciResOUrCeS, Inc. ioxins_COfltaf?Uflg Waste Streams, EPA Contract No.
5W-6242-NASX, July 31, 1985.
5 U.S. EPA. Alternative Technology Division: Summary of Projects. HWERL.
Cincinnati, OH, April 1986.
6 TJ.S. EPA, Superfund Handbook for Stabilizatiofl/SOl idificauboJi of Hazardous
Wastes, EPA 540/2-86/001, HWERL, Cincinnati. OH, June 1986.
7 Versar, Inc. The Use of Treatment Technologies at Superfund Sites-Slide
Presentation, EPA Contract No. 68-01-7053; June 25, 1986.
8 Versar, Inc. Alternative Technologies Briefing, 1986.
9 Carnp Dresser and McKee, Inc. Mobile Treatment Technologies for Superfund
Wastes-Interim Edition; U.S. EPA 540/2-86/003, July 1986.
1 °U.S. EPA, RCRA/CERCLA. Alternative Treatment Technology Seminars, ORD,
HWERL, CERI, OSWER., Boston, MA, Juiie 1986.
11 1J.S. EPA, Project Surnmary Innovative Thermal Hazardous Wast Treatment
Processes, EPA 600/S2-85/049, HWERL, Cincinnati. OH, June 1985.
12 Key Technologies for the Treatment of Dioxin-Contaminated Wastes. (one page
no reference)
13 Massey, Dr. Mi., and Dr. F.M. Walsh. An ElectrochemiCal Process for
Decontaminating PCB-containifl8 Transformer Coolants, presented at EPRI
ConferenCe, October 1985.
‘ 4 Hazardous Waste Management. Inc., Detoxification of Substances by Utilization
of Ultrasonic Energy, October 16, 1984.
15 U.S. EPA, SITE Program MeniorandUXfl SITE Participant Technology
Descriptions, HWERL. Cincinnati, OH. October 7, 1987.
16 0ffice of Technology Assessment, Superfiuid Strategy Summary, Congress of the
United States. 1985.
17 Olexsey, Robert A., Memorandum: List of Alternative Technology Unit
Processes. ORD, HWERL. July 10, 1986.
18 j.S. EPA. SITE Program: Draft Strategy and Program Plan: ORD and OSWER,
June, 1986. - . —
-------
Sqpertundlnnovative Technology
Evaluation (SITE) Program Requirements
-------
9380.2—06
j UNITED STATES ENVIRONMENTAL PROTECT 0N AGENCY
_____ - WASHINGToN 0 C. 20460
.Rod
- 2:9e8
OFFICE OF
SOLID WASTE AND EME°GE ICY RESPONSE
ME VRANDUM
SUI3JECr: Superfund Innovative Technology Evaluation (SITE)
Progra repents
A, ‘LU -J-’ ”Pt.—
FROM: .- 1. Winston rt er
ssistant Mmidistrator
TO: ddi:essees
PURPOSE
The purpose of this norandun is to describe the regulatory requireaents
and procedures for implamenting treath ient technology danonstrat ion projects
in the SITE program.
The SITE program was established under section 209 (b) of the Superfund
amendments and Reauthorization Act (SARA) (section 311(b) of CEROLP, as
amanded) to evaluate technologies for the treath nt of hazardous waste. The
purpose of the program is to expedite the developnent and cuua ercialization
of technologies to fulfill the cleanup requirer e ts under section 121 of
SARA. This is primarily acccxnplished by cond xfting technology desonstrations.
These damonstrations provide performance, cost and reliability data so that
potential future users have sufficient information to make sound jndganents
as to the applicability of the technology for a specific site or to compare
it to other alternatives. Deaonstrations will take place under conditions
that either duplicate or closely simulate actual wastes and conditions
found at Superfund sites. The damonstrations will simulate a comercial
scale application and will be of sufficient size to generate data applicable
to full—scale operation. The recults of these deaonstrations will be broadly
applicable t all hazardous waste cleanup efforts.
The program is focused on condi ting technology evaluations as partner-
ships betwaen EPA and developprs. After acceptance into the program, the
technology developers are responsible for providing and operating their
equipeent, while the Agency is responsible for monitoring and evaluating
performance. New technologies are accepted into the program based on
responses to a Request for Proposal (RFP), which is distributed annually.
-------
9380.2—06
—2—
Once a developer is accepted, a Superfund waste is chosen for treatment
d onstration based on site nominations provided by the Regions. At the
present time, there are 20 developers participating in the program with
projects at various stages of completion. Several field demonstrations are
taking place for the first group of tec w .oL.)gies; Regions are considering
Superfund site nominations for the second group; and a third RFP will be
distributed in January.
In the course of implementing these projects, several issues have
arisen concerning the relationship to Superfund and RP requirements.
Specifically, issues concerning permitting, ARPRs (applicable or relevant
and appropriate requirements), cxiauunity relations, and cost recovery are
addressed below.
DIS JSSI0N
Section 311 of CE t 1 A authorizes EPA to carry out the SITE program and
sets forth detailed standards governing the program. Projects taken under
the SITE program are not remedial actions and are not governed by the pro-
visions of section 121 of Rather, section 311(b) (4) requires that
SITE projects be carried out:
under such terms and conditions as the Mministrator shall require to
assure the protection of human health and the envirormient and to assure
adequate control by the Mministrator of the research, testing, evalua-
tion, developeent, and demonstration activities at the site.
In addition, secticn 311(b) (7) provides that in selecting technologies
to be demonstrated, EPA sha, consistent with the protection of human
health and the envirorrnent, consider. • ,1 several enumerated criteria.
EPA believes that section 311 gives the agency authority to determine
what is necessary to protect human health and the envirormnent, and that SITE
program activities are not subject to envirormiental permitting requirements
under other Federal and State laws. Howaver, in order to assure protection
of human health and the environment, SITE demonstration projects taking
place at Superfund sites should ccxnply with the substantive requirements
of all applicable or relevant and appropriate State and Federal environ-
mental laws, except where a waiver similar to one of those provided in
section 121(d) (4) is appropriate. I’or the same reason, off—site demonstra-
tion projects should be limited to facilities having all appropriate State
and Federal permits.
Occasionally, it will be necessary t’ ‘ o- d t laboratory bench—scale
treatability tests prior to the actual technology demonstration. Bench—scale
tests are primarily required to assess the effectiveness of and establish
operating parameters for biological and solidification technologies. In
order to assure protection of human health and the environment, EPA will
prefer to use permitted facilities to conduct bench-scale treatability
tests. 3owsver, if this is not practicable, the tests may be performed at
non—permitted off—site facilities. It is anticipated that unpermitted
facilities would only be used in a limited nuther of circumstances. Any
-------
9 380.2—06
3.
usee of off—site facilities should be restricted to wastes in limited quantities
necessary to perform the tests (e.g., 50 kg). Laboratories conducting treatabi—
lity tests should be required to submit a test plan and to have a health and
safety plan. No public comnent period is necessary for the small—scale labora-
tory testing. Unused samples, treated residues, and by—products should be
returned to the original site or disposed of at permitted facilities. Manifests
should be used for shipnent of waste to Subtitle C facilities. Fiowaver,
shi nents from a Superfund site to a laboratory for study and then back to
the Superfund site need not be manifested. Materials should be transported
in accordance with relevant DOT or postal service regulations and all shipping
receipts should be kept in the project files. In addition, sample handling
requirements in 40 CFR 261.4(d) should be met.
With respect to cuornunity relations, CE LA section 311(b) (5) Ce)
requires that the ency give notice and opportunity for public c nent on
SITE demonstrations. The primary purpose of this provision is to solicit
con nents on the proposed matching of technologies with sites for the purnose
of conducting field demonstrations. The SITE program will use the cxanunity
relations procedures established for CE LA remedial actions when carrying
out demonstrations at Superfund sites. 0ff—site demonstrations should
comply with relevant permit requirements, and the associated public coment
process will satisfy the SITE program requirements.
Finally, since the SITE demonstrations are not part of the Superfund
response action, the costs are not recoverable from responsible parties.
Attachment
Addressees :
Director, Office of anergency & Renedial Response, Region II
Director, Hazardous Waste Management Division, Regions III & VI
Director, Air and Waste Management Division, Region II
Director, Waste Management Division, Regions I, IV, V, VII & VIII
Director, Toxics and Waste Management Division, Region IX
Director, Hazardous Waste Division, Region X
Director, Envirorinental Services Division, Region I—X
cc: Director, 0RD/O iv
Director, QPD/}TVJERL
Director, OERR
Regional SITE Coordinators
-------
Factors to Consider When Selecting
Incinerators as Alternative Technology for
Supertund Cleanups
-------
ACKC.RnrINfl PAP ’P
S(JPFPFUND IN JOV? TVF TFC4NOLOGV V ( . rI( ’s1 PRr R, M
INTRO OCICT tON
The Fnv’ironmentaL Protection Pqency’s Office of Research and
Development (ORD), joining with the Office of solid Waste and
ergency Response (C) WFR), has initiated the uperfund Innovative
Technoloqy Evaluation ( SITE ) Program. The SITF PrograI1 wiU help
EPA find, test, nd encourage the use of new ways to destroy,
stabilize or otherwise treat hazardous wastes, rather than just
burying them in the ground.
The overall goal of the SITE Program is to axinize the use of
alternatives to land disposal and containment at Superfund sites.
To accomplish this goal, the program will provide reliable cost
and performance information on technologies that offer an alternative
to land disposal. This information will be generated by conducting
pilot—scale or full—scale demonstrations of alternative technologies
at uperfund sites.
P. A C OUN 0
EPA’s Superfund prograr” is designed to cLean up ha?ardous waste
sites around the country. It has been underway for six years
with action taken at over 43fl uper und sites to address long—term
problems created by hazardous wastes. More than half of these
sites have involved burying the hazardous wastes in specially
prepared landfills —— a process called land dis osal . White land
disposal can he a good way to handle wastes, in some instances it
does not provide a permanent solution to the problem. The wastes
in the landfil.l may still be dangerous, and may potentially leak
through the confines of the burial site.
Recently, members of the scientific community, the public, and
Congress expressed concern that it was time to move away from
reliance on land disposal For handling hazardous wastes. These
views are reflected in the azardous and Solid Waste Amendments
of 1985 (RSWA) and the Superfund Amendments and Reauthorization
Act of 1986 (SARA). The Agency responded by altering certain
policies and developing regulations regarding hazardous waste
disposal in landfills and the expanded use of alternative tech—
nolog ies.
More specifically, the Land Disposal Restriction provisions
of HSWA stipulate that certain wastes cannot he land disposed
unless they meet specific concentration—based treatment standards
that represent best demonstrated available technology. Similarly,
the new SARA sets a clear preference for the use of cost—effective
DECEMRER 1., 19R15
-------
—,—
treatr ertt re ”eiiies whtch r i,anefltlY r d stqnL c it y r ’ice
the toxiCity, mOhLlit/ or v?i.u’ ’e O ‘i S at uoecfund P, .
In addition to these prOVLSiOflS S?PA dLrects F? to carry out a
program of research, evaluation, testing, development and demon-
stration of alternative or innovatLve technologies to achieve
more per?nanPflt proteCtiOr c’E human health and wel.fare and the
environment. These laws, regulations, and policies clearly
provide the impetus toward the use oF treatment alternatives or
the management of hazardous waste . Technical and policy guidance
on the use and avail.ahilitY 0 F alternative technologies Ln both
the uperfund removal and remedial programs is expected soon.
SITE pROCRA” PHASES
The four phases of the SITE Program listed below are being conducted
simultaneously. They will he integrated so that information from
one phase can he used in another. F ach phase is designed to meet
a particular objective of the SITE Program. The SITE program
will be periodically reviewed to determine how information generated
from all phases may be used to encourage the selection of new
technologies at SuDerfund sites.
o Phase I: Identify and Remove Imoedimertts
Trained engineers, economiStS and policy analysts will
identify the obstacles to the orderly development and
use of alternative technologies to manage hazardous
wastes. Resolving issues dealing with permit requirements
treatment residue disposal, liabilities, prOcure! ertt
requirements, and public interest will help pave the way
to increased use of treatment alternatives. Recommendations
on how EP can remove or limit obstacles to the use of
alternative technologies will be complete by mid 1q81.
o Phase II: Conduct a Demonstration ProcraTfl
EP will conduct a demonstration program for innovative
technologies at selected Superfund sites. From these
demonstrations, EPA will provide performance and .cost
information for the new technologies. This information
will help EPD decide when, and under what circumstances,
to use the technology at other hazardous waste sites.
The demonstration progam will he an ongoing effort.
EPA plans to start several demonstrations as soon as
possible to obtain information on the most advanced
technologies. Demonstrations will then occur on a
yearly schedule. An annual SITE demonstration plan will
be published for public comment and will discuss the
proposed technologies to be den onstrated and the superfund
sites identified for use that year.
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—3—
o Phase III: AoolicarLIOr1c n v es
Applications analyses will he cr’nducted or technoloqies
that warrant further investigation after completion of
the iemonstration. Such analyses ¶iijll examine the
applicability of the technology to other Superfund sites
and include factors such as cost, appropriate site
conditions, efficiency characteristics, and waste types.
Policies and procedures that need to be taken into account
in applying promising new t chnologies to Superfund sites
will be examined.
o Phase IV: Fmerrina TechnolocieS Develooment
ORD will estahlish a research program to continually
evaluate and encourage the ilevelooment of emerging
alternative technologies through pilr t testing to full
scale demonstrations. This phase will be initiated In
the spring of L R7 and will t e ongoing thereafter.
THF DFMONSTRATION P ASE: A SUMMARY
phase II, the Demonstration Phase, will be the most uhlicly
visible of the four phases. Actual work will begin at Superfund
sites during the demonstration phase and new technologies will be
evaluated. Key events in the demonstration ,hase are summarized:
o Advertise in Com’nerce Business Daily
A notice requesting proposals will he placed in the
Commerce Business Daily.(C D) on or before January 15,
1987, and annually thereafter. Developers of new and
innovative technologies are asked to obtain from !PA the
information necessary to submit proposals for demonstrating
their technology. Proposals submitted in response to the
CR 1) announcement can be made through ehruary. Informa-
tion about the Request for Proposals (RFP) can be obtained
from Mr. Steve James (OPD) by calling 513—569—7877
(commercial) or 684—7877 (FTS).
In addition to choosing technologies based on the CfiD
advertisement, EPA has set up a second mechanism where
innovative technologies may also he demonstrated as part
of routine response actions. Superfund or other cleanup
sites on which EPA is planning to use treatment tech-
nologies as part of the response action may he adapted
for SITE demonstrations. -
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—4—
a Select TechnnlOai
potential new technologieS will he c re ully screened by
OSWER and ORO. The screening process will he competitivP
and must be completed within 90 days of receiving the
completed a plicatiOfl. In selecting technologies to he
demonstr tQd, EP must consider, at a minimum, the
following criteria:
1. The potential for contributing tO solutions to those
waste problems which pose the greatest threat to
human health, which cannot be adequately controlled
under present technologies, or which otherwise pose
significant management difficulties.
2. The availabilitY of technologies which have been
sufficiently developed for field demonstration and
which are likely to be cost effeCtiVe and reliable.
3. The availability and suitability of sites for demon-
stratinq such technologies, and the capability tO
conduct demonstration projects in such a manner as
to assure the protection of human health and the
em’ ironffleflt.
4. The likelihood that the data to be generated from
the demonstration project at the site will be
applicable to other sites.
o Match TechnologieS to Sites
Many of the new technologies may only be suited for
specific kinds of wastes at a specific site. Using the
expertise and knowledge in F PA Headquarters laboratories,
and the EPA RegionS, technologies will be matched with
wastes at available Superfund sites. The new superfund
law requires PA to conduct a minirnu,’t of ten technology
demonstrations each year. While most demonstrations
will take place at Superfurtd sites, some technologies
may be tested at commercial hazardous waste sites or at
special test and evaluation facilities operated by EPA
or the developer. factors such as risk, public interest,
expense, disposal of residues and involvement of
potentially responsible parties will be considered when
matching sites and wastes with technologies.
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—5—
o DeveloP Annual. SITF Demonstration P arl
The annual SITE demonstratiOn plan ‘ilL dt5cuSS the
technology demonstratLOn projects pl.anned, how and when
the projects will he carried out, the tentative sites
selected, the resource requirements for conducting the
demonstrations, and the means for public involvement
and input. This plan will be published for public
review and comment.
o Imolement Site—Soecific Cot’w’unity elationS programs
Once a site and technology have been tentatively
selected, EPA will develop and implement a community
relations plan to seek the ideas and suggestions of
local residents. In accordance with the plan, EPA will.
introduce the community to the SITE program and its role
at their local site, and will provide information on the
specific technologies. Public comment will he sought
throughout the demonstration project and community
relations activities will continue for the duration of
the demonstration.
o Conduct DemonstratiOfl
After reviewing and incorporating comments on the SITE
demonstration plan, EPA will enter into a contract,
letter agreement, or cooperative agreement with the
developer of the technology. The demonstration will
begin and probably last several months, depending upon
the time reauired to gather infornatiOfl on the effective-
ness and reliability of the technology. The developer
will provide the equipment and he responsible for set—up
and operation at the demonstration site. The technology
will treat Superfund wastes during the test, but since
it is only a demonstration, it will not be expected to
clean up all of the wastes at the Superfund site. If
necessary, another standard technology will be used to
handle the remaining wastes. EPA’S role will be to ensure
credible results by providing the testing protocols and
procedures and preparing the analytical and quality
assurance/quality control work plans so the performance
data can be consistently and accurately interpreted.
o Complete Evaluation and Distribute Information
At the close of each demonstration, EPA will evaluate - -
the results of all tests. If the results are positive,
the technology could be applied at other similar Superfund
sites. EP will modify Agency policies and procedures
to encourage the use of these and other alternative
technologies.
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—A—
EP will ‘iake . vailable the results o the eva1Ua Li.On
of each new .echnolocjy tQ the haz r1OuS wact cleanup
industry, regulatorY agencies an 1-he public. The
gency is developing a technology transfer r,rocr in to
ensure the distribution of accurate inFormation as
— quickly as possible.
THE PROGRAM TC DATE
The Superfun’i reauthOriZattOfl cells for a minimum of ten field
demonstrations per year through i °n. Congress authorized S20
million per year for the demonstr. ti0n program, including demon-
strationS of innovative monitoring equipment. The alternative
technology deriionstr tiOfl program is limited to SiC) million per
year, with a S3 million cap for a single demonstration.
In anticipation of reauthorization, EP began setting up the SITE
Program in l9R6. In March of 19S36, the first notice requesting
proposals was placed in the Commerce Business Daily . In response
to RFP sITE—0Ol, twenty proposals were received representing the
following technologie
1C ) Incineration/Thet Ia
3 iological Treatlnertt
2 ContainerizatiOn
1 Solidificatiort/Stabilizati0r%
1 In—Situ Vapor Extraction
1 Chemical Detoxification
1 Robotics
1 Vapor Condensation
The proposals were evaluated and ranked according to the specified
criteria. In addition, EPA identified several potential demon-
strations through the second mechanism —— routine response actions.
A listing of firms, tentative sites (where determined), and a
brief description of the technologies which are potentially
proposed for demonstratiOn during l9A7 is attached.
CONTACTS
• OSWER : Don White 2fl2 475—Rl50fl (commercial) or
475—8600 (FTS)
For information on superfund wastes and
sites and other general information.
• ORD : Ron Hill 513—569—7R6l (commercial) or
684—7861 (FTS) or Steve James
513—569—7877 (commercial) or 684—7877 (FTS)
For information related to applications
of treatment technologies, the Coim1 erce
Business Dail announcement, anWthe
Request for Proposals.
O Suoerfund/RCRA Hotline 800—424—9346
202—382—3000
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SUPFRFUMD I 4N(W TIVE r H flW(W FVAWATI’ J ( tT ) ‘ RO( RA’1:
P! ED D1O 1sTPA1ICt4 P JECJS P S OF r X)VE IBFR ,s, L9R
Main Track (CR0) Tentative
Location of
Developer Technolopy nstration
waste—Tech Services, Inc. ‘kb ile ther ivU canbustor— Coors Ca’ pany
18400 st lath Avenue fluidized bed Golden, Colorado
Golden, Colorado 80401
Contact: El jot Cooper
303—279—9712
?dvanced Co’ hustion Pure oxygen burner CR0 Test
Technologies Inc. and Evaluation
P.O. Box 940498 Facility
Atlanta, Georgia 30340
Contact: l cmas tGowan
404—6 (2—5360
Shirco Infrared Systens, Inc. Electric infrared tb be deteonined
1195 E ’pire Central incinerator
Dellas, Texas 75247
Contact: Scott Berdine
214—630—7511
Ha con, Inc. Solidification! 1b be deterTnined
P.O. Box 947 stabilization process
Katy, Texas 77492
Contact: Ray Funderburk
7 1 3—3Q 1—1 085
West irvjhouse Electric Corp.
Waste Technology Services
Division
P.O. Box 286
Madison, Pennsylvania 15663
Contact: Carrie Peri’ an (1) Pyroplaen sys ten tb he determined
412 —7 22 —570q
Contact: Willian Reed (2) E1ectr ic pyrolyzer tb be dete ined
412—722—5303
terra Vac, Inc. In-situ vacwu extraction Th be determined
P.O. Box 550
t rado, Puerto Rico 00646
Contact: Janes Malot
809—723—9171
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Throuch Resconse Actions
Develocer
New or¼ State Depart”ent
of Envi anentaL -
Conservation
(Plasna Syste s, Inc.)
50 1f Road
Albany. New York 12233
Contact: Norman Nosenchuck
518—262—1.33R
Technolocy
PL.sna pyrolysis thermal
unit
“ entative -
Location of
De cnstrat ion
T ve Canal
Niagara Falls, New York
G Technologies, Inc.
P.O. Box 85608
San Dieco, California 213R
Contact: Harold Diot
619—455—2383
Circulatir bed c vibustor
C A 1 chno1.og ies’
facility; test on
ste frau McColl,
Fullerton, C
(remedial action)
Conservation
Northup Way
Wash ir ton 98004
Paul Mc Lçh
206—828—2455
General Electric
() e River Road
Schenectady, New York 12345
Contact: John Rarrsen
S1R—385—0045
and
International Waste
Technologies
807 North Waco, Suite 31
Wichita, Kansas 67203
Contact: Jeff Newton
316—262— 133R
Rasic ctractiat Slu e
Treatment (BEST): solvent
extraction technology
In—situ so].idification/
fixation process
General Refinery, Inc.
Savannah, Georgia
( iwal action)
General Electric
Raileah, Florida
Resources
ca ’pany
3101 N.E.
Bellevue,
Contact:
2
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FACTORS TO CONSIDER WHEN SELECTING INCINERATORS
AS ALTERNATIVE TECHNOLOGY FOR SUPERFIJNI) CLEANUPS
0 Facility Capacity — Many incinerators are no longer accepting
Superfund wastes because they are not in compliance with the
RCRA Offsite Disposal Policy. Since the number of incinerators
available to accept wastes is limited, it is critical to
consider the chemical and physical characteristics of the
waste before selecting a disposal option. Otherwise, because
of limited incinerator capacity, hazardous wastes that must
be incinerated (e.g., high level PCBs, pesticides, cyanide
wastes, etc.) will have to be stored in a temporary storage
facility, or staged onsite until a RCRA approved incinerator
has the capacity to receive the waste.
o Mobility of the Hazardous Material — Certain hazardous
materials will tend to leach more quickly than others. This
should be considered prior to landfilling.
o incinerable Characteristics — Some wastes, particularly
liquids with a high flash point, must be incinerated. Other
wastes, especially bulk soils and sludges, or materials with
high water or ash contents because they require a high energy
input, are difficult and much more expensive to incinerate.
O Hazardous Constituent Concentration — Highly contaminated
wastes are generally better candidates for incineration than
low level materials, because of the higher long term public
health and environmental risks associated with landfilllng
this material instead of destroying it.
o Cost — According to the Offsite Disposal Policy, alternative
technology can be eliminated only if the cost of the alterna-
tive far exceeds the cost of others (e.g.. by an order of
magnitude) and does not provide substantially greater public
health and environmental benefit.
Other Alternatives
— Reuse or recycle
— Onsite treatment or pretreatment (e.g., neutralize acids,
remove lead from soil)
— Encapsulation
— Treat at commercial or public waste treatment facilities
— Incinerate in a cement kiln or other industrial
boilers/furnaces
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CERCLA Removal Actions at Methane
Release Sites
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United S a es Office of
Erw,ronmerual Protecuon Solid Waste and
Agency Emergency Resoonse
D 1RECT 1VENUMBER: 936Q.Q-. 9 -
TITLE: CERCLA Removal Actions at Methane Release Sites
APPROVAL DATE: January 23, 1986
EFFECTIVE DATE: January 23, 1986
ORiGINATING OFFICE: Superfund
FiNAL
o DRAFT
STATUS:
ernorandum from Henry Longest U, Director, OERR
To: Basil ti. Constantelos, Director, Waste !ianagement
Divisioji Region ‘I
REFER ENC (other documents):
OS WER OS WER . OS WER
VE DIRECTIVE DIRECTIVE £
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.? tO SP4p
- — - —
Ut’BT D STAi S c.NVIRONMENTAL PROTC.CT ON AGENCY
WASH(NGTON• O.C. 20460
JAN 2 3 l 5
OFFICE OF
SOLID WASTE ANO EME CENCY ESPOI 1SE
iOP JM
SUBJECT: CEPt A Removal Actions at Methane Sites
FRa’4: Henry L. Longest II , Director
Office of E nercer1cy and RemedL
10: Basil C. Constantelos, Director
Waste Management Division
Region V
This menorand .w clarifies Office of Fnergency and Remedial Response
policy on the apr pr ateness of re val actions at metharte gas release
sites under authcr ty of the C reher!sive Envir rinental Response, Coiipen—
sation, and Liability Act of 1980 (C5RCM. This issue was recently
brought to our attention as a result of response actions which were beirç
considered at the Indust al Excess L.andf ill (IEL) site in Lake Township,
Ohio.
Because methane qas is not listed or desicnated under any of the
statutory provisions in section 101(14) of , it is not a “hazardous
substance.w However, response actions under CE A section 104 are not
limited to hazardous substances. Section 104(a) (1) authorizes responses
to actual or potential releases of wpollutant.s or corttaitinants.” The
definition of h * rdous substance in section 101(14) and pollutant or
contaninant in section 104(a) (2) excludes certain types of natural gas and
petrole .zn. Naturally occurring methane gas found in or associated with
petro1e .mi deposits is a type of natural gas and is therefore exempted froii
CER a.A coverage. However, methane gas emanating fr a a landfill is not
considered to be natural gas” and such releases may therefore be eligible
for response under section 104(a) (1) if methane gas otherwise meets the
definition of pollutant or cont ninant under section 104(a) (2).
With resDect to the response authority for pollutants or cont inants,
response action under section 104 (a) (1) is authorized only if there is a
threatened or actual release of such substances which may present an
9 m inent and substantial danger to the public health or welfare.” The
potentially explosive gas levels, detected during daily n nitoring at the
perimeter of the landfill and nearby hanes and businesses, appear to meet
the criterion of fxtudnent and substantial danger. Therefore, because the
methane gas is not excluded as a “natural gas,” if it is detecnined to
be a “pollutant or ccrtt nirzant ” as defined in section 104(a)(2) and to
-pose an “is nir.ent and substantial danger to the public health and welfare,”
response under is authorized.
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—2—
AL though the proposed r noval action is authorized under CERa.A section
1C4 (a) (1), the responsible party may not be liable under section 107 for
r noval action costs since liability under that section is lhnited to
releases of hazardous substances.
As a matter of policy, CERCEA responses to methane gas releases shculd
be carefully evaluated on a case—by—case basis. pproval of the r tcval
action at I should not be considered as setting a general precedent for
future actions involving methane gas. Methane gas is produced in ncst
landfills, and response authorized under CERCEA section 104(a)(l) for
release of a “pollutant or cont ninant ” n .ist be carefully evaluated and
doc nented for the presence of an “inuninent and substantial danger to the
public health or el.fare. ”
In a related issue, please note that methane control measures may be
taken as part of a response action that controls a release of a hazardous
substance. These measures uld be taken to protect public health and the
enviror ent and to ensure the integrity of the rEredy.
cc: Waste Manag nent Division Directors, Regions I—IV and VI—X
Enviror nental Services Division Directors, Regions I ,VI and VII
Regional Branch Chiefs
Regional OE 4—Coordinators
Gene Lucero
Thiss Wyer
Steve Lingle
Jim E.a.insb ry
Tim Fields
Hans C
Sherr 1 Hawkins
-------
lmpI,ementation Strategyfor Reauthorized
SUperfund: Short Term Priorities for
Action
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OCT 24
$01.10 WASTE AND EMERGENCY RESPONSE
9200.3—02
3BJ r: bplenentation Strategy for Reauthorized Superfund:
Sho Term Pr oities for Action
F N: 3. inston ‘Porter
Assistant Adeinistrator
‘10: Regional Aóninistrator, Regions I - X
Regional Counsel, Regions I — X
Director, Waste Managenent Division
Regions I, IV, V, VII, and VIII
Director, nergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Regions III and VI
Director, Toxics and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
Envir rinental Services Division Directors
Regions I, VI, and VII
On C tcber 17, 1986, the President signed the Superfund Amen nents and
Reauthorization Act of 1986 (SAM) anerding the current Superfuix1 law and
enacting certain additional provisions. 1 attached transition guidance
provides basic interpretations and instructions with respect to SAM.
SARA continues the pr ss and program that was put in place with the
revised National Contingency Plan (NCP) in N enber 1985. It contains a
azrber of new provisions, ) ver, that give statutory eiçhasis to ease
aspects of the existing progran, or that add ortant r considerations.
Ir addition, the rev law requires the Agency to meet mandatory schedules for
initiating and o r 1 leting various renedial activities, and challenges us to
efficiently manage a program that is ejch larger in size and scope.
As wa e ahead with the rev Superfurd progruli, I want us to proceed
along t tracks. lie first involves strong ecçhasis on finishing k
currently in the pipeline, particularly those projects in the final inplesen-
tation phases. Cc 1eticn of this and other ongoing i rk nn.et incorporate
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9200. 3—02
—2—
careful consideration of the inpact of SARA in a manner designed to mini-
mize prcgran disruption. The other track will involve initiating new work,
as well as further ref iiwaent of our understanding of the SARA provisions.
This is the first in a series of ma that will provide direction for
iiiplenenting thê new Superfund progr n. Many of you will encounter policy
issues in advance of guidance. Questions you face in the field will help
drive our priorities for providing such quidanoe. I ask that you e for’-
ward aggressively to 1ii leient the new program and nct wait until all the
questions have been answered.
t n you encounter an unresolved issue that may have national policy
ivplications, please consult with the Headquarters contact appropriate to
that issue. I have attached a list of contacts to assist in key areas.
The new Superfund will be a great challenge for all of us. It will
require close working relationships within EPA, as well as with other Federal
agencies, State and local gover ents, citizens groups, contractors, and
industry. It will be s tive that we sI’cw major results with the program
and funds entrusted to us. I look forward very such to working with all of
you on this very ii ,ortant endeavor.
Attacheent
cc: ninistrator
pity Athinistcator
Associate Aóninistrator for
International Activities
Associate inistrator for
Regional erat ions
Assistant AAninistrator for
Ackinistrat ion & Resources Manags nt
Assistant inistrator for
Enfo . .*nt & C çliance Monitoring
General Counsel
Assistant Muinistrator for
Policy, Planning & Evaluation
Assistant Muinistrator for
External Affairs
Inspector General
Assistant Muinistrator for
Water
Assistant Mninietrator for
Air & Radiation
Assistant Muinistrator for
Pesticides & Toxic Substances
Assistant Muiriistrator for
Research & ve]cpnent
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Ut. I ,4 9
9200. 3—02
CERCLIA REAUTHORIZATION TRANSITION GUIDANCE
SCOPE OF GUIDANCE
This guidance specifically addresses the management of on-
going response actions (remedial and removal, Fund and enforcement)
affected by the SARA. Although SARA includes a number of other
new authorities (such as Emergency Planning and Community Right
to Know) that are effective immediately, these provisions will be
largely addressed in separate memoranda and guidance documents.
This document paraphrases some sections of the new law. Such
paraphrasing is not meant to be interpretive of legislative language
nor does it summarize complete sections of the law that may them-
selves be very lengthy. Please carefully review the attached
summary and the actual provisions in order to understand fully the
legislation.
This guidance is organized as follows:
I. Scope of Guidance
II. Effective Date of Provisions
III. Removal Program Provisions and Priorities
IV. Remedial Program Provisions and Priorities
V. Enforcement Program Provisions and Priorities
VI. Cross Cutting Provisions
VII. Impact on Delegations
. EFFECTIVE DATE OF PROVISIONS
All provisions of the new statute took effect on the date
of enactment (October 17, 1986) unless otherwise specified by law.
One area, however, where previous Agency decisions are grand—
fathered’ is with respect to records of decision (RODs) and consent
decrees ES121(b)(1)J.
A. Signed RODS andConsentDeéreès— rjór tóandwithin 30 Days
of SARA
RODs signed or consent decrees lodged prlói to the date of
enactment are not required to meet new requirements of 5121
(Clean—up Standards) unless the record of decision is reopened
after the date of enactment to modify the remedy (5121(b)(1)J.
An Enforcement Decision Document (EDD) is the functional equivalent
of a ROD; therefore the effective date provision applies to all
signed EDDs, as well as RODs, where public participation was equiv-
alent to that provided for RODs. (Where the EDD resulted in a
consent degree, the grandfathering provision, of course, applies.)
In the future, all selections of remedies for fund and enforcement
lead sites will follow the ROD process.
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—2—
9200. 3—02
For RODs signed or consent decrees lodged within 30 days of
date of enactment, EPA must certify in writing that the portion of
the remedial *ction covered by the ROD or consent decree complies
to the maximum extent practicable with 5121 of the new law (S]21
(b)(2)]. The-certification responsibility is given by statute
to the Administrator. Regions should consult with their Head—
quarters’ contacts and take active measures to ensure that this
certification can occur at the time of ROD signature.
B. RODS signed or Consent Decrees Lodged 30 days after SARA
RODS not signed within 30 days of enactment are required to
comply fully with all new SARA provisions. In considering the
new provisions, Regions should recognize that while cost effective
remedies which protect human health and the environment continue
to be required, the statute places a greater emphasis on the per-
formance, long—term protectiveness and reliability of remedial
actions. [ See Section IV; - ial Program Provisions.]
C. Implementation Considerations: Signed RODs for Operable Units
Projects in the design and construction phase at the time of
enactment are the highest priority for Agency actions (see Section
IV ; Remedial Program). However, before proceeding, Regions should
examine whether additional RODs are planned and assess the overall
remedial strategy to ensure that future operable units are consis-
tent with the new SARA requirements.
It!. REMOVAL PROGRAM CONSIDERATIONS AND PRIORITIES
A. New Provisions
Three significant provisions of the new law are effective
immediately and may have an impact on on—going and future removal
operations.
1. Time and Dollar Limits
The new law raises the time end dollar limits for removal
operations from six months and $1 million to twelve months and
$2 million (Sl04(e)(1)1. Although new time and dollar limits
are effective immediately, the Regions are not currently delegated
the authority to sign Action Memoranda above $1 million. Until
delegation to the Regions of additional authority, Headquarters’
approval of ceiling increases and exemption requests above
$1 million will be required. Regions are already delegated the
authority to approve extensions of any time limits. Any findings
by the Region that an extension of time is needed must be made as
early as practicable, and at least before expiration of the new
statutory time limit of 12 months.
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—3—
9200.3—02
Headquarters’ review of non—delegated dollar limit extensions
will be expeditious and will focus on consistency with criteria
for removal actions and, in this immediate post—enactment period,
on the availability of limited dollars to complete emergency actions.
Regions have the discretion to re—evaluate on—going removals to
determine if the scope should be changed under the new limits.
At some sites, it is possible that a more efficient approach could
be designed given the additional fund/time limits available.
2. Consistency Waiver
The new statute provides for an additional waiver to statutory
limits which allows EPA to continue a removal action beyond
$2 million and 12 months where such action.is appropriate and
consistent’ with future remedial actions (5l04(e)(2)J. This
waiver is available at both proposed and final NPL sites. Our
current position is that it will not be used at non—NPL sites.
3. Contribution to Efficient Performanc
Removal actions that take place after SARA are to be con-
ducted in such a manner as to ‘contribute to the efficient perfor-
mance’ of long—term remedial measures ‘to the extent the President
deems practicable’ ES104(b)(2)J. This provision promotes the
performance of removal actions that more efficiently address
threats by considering the overall site clean—up before the start
af the action. The goal of this requirement is to reduce the
need for removal restarts. The responsibility under this provision
is effective immediately.
The Action Memorandum must include a specific discussion on
how the proposed removal action meets this criterion. One situa-
tion where it may not he feasible to consider how the removal
action contributes to the performance of the remedial action is in
an emergency involving an immediate threat. In such cases, response
personnel may need to take whatever immediate measures are required
to protect the public health, welfare and the environment, and should
document the reasons for taking the action without having first
considered this criterion.
For on—going removals, response personnel should keep in mind
the requirement that removals contribute to the efficient perfor-
mance of long—term remedial measures, and take whatever steps are
practicable under site—specific field circumstances to meet this
requirement. Changes to on—going removal actions that take place
in the course of exercising this responsibility should be documented
in an amended Action Memorandum. This documentation should occur
as soon as possible’.
1/ As it is existing policy to ensure that removal actions contribute
to the efficient performance of long—term measures to the extent
practicable, this provision may have very little practical impact
on signed Action Memoranda or on—going actions.
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• If an Action Memorandum has been signed. the removal is
on—going, and a new Action Memorandum is necessary to go
belpnd statutory limits. The new memo should address the
degree to which this requirement has been addressed.
• If an Action Memorandum has been signed but a removal
action not yet initiated, consideration should be given
to amending the Action Memorandum, if this requirement is
not already addressed prior to initiating the response
action.
• If an Action Memorandum has not been signed, it must
address this requirement.
B. Removal Program Priorities
Until SARA funding is available, we must continue to con-
serve funding for removal actions. t plan to provide S2 million
per month nationally to respond to the aost serious emergency
situations.
Regions should use this period to carry out preliminary
activities that will allow on—site work to begin promptly when new
CERCLA funding becomes available. Such activities include:
• Continue to conduct preliminary assessments under CERCLA
section 104(b) authority at sites where removal action may
be necessary.
• Coordinate and prepare Action Memoranda and secure the
Regional Administrator’s informal approval (not signature)
for potential removal actions of less than Si million 80
that on—site activities can begin promptly when SARA
funding becomes available.
• Prepare and submit to Headquarters draft ceiling increase
requests (between $1 million and $2 million) and exemption
requests (above $2 million), so that coordination and inf or—
mal approval can take place during the period of restricted
funding. Review of draft requests will ensure that on—site
actions can be initiated promptly and will be particularly
important in obtaining timely Headquarters’ approval of
exemption requests based on the new ‘remedial consistency’
waiver.
• Refer sites needing action and having responsible parties to
Regional enforcement programs.
During fiscal year 1986, many removal actions were not initi-
ated, others were demobilized and some actions vet. conducted at a
reduced pace. As the removal program gears up with SARA funds,
removal site priorities will have to be established by each Region.
Available personnel arid funding resources will have to be considered
in setting these priorities.
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IV. REMEDIAL PROGRAM PROVISIONS AND PRIORITIES
Highlighted below are some of the considerations that you
will want to keep in mind as you proceed to incorporate the SARA
requirements into on—going work. Paraphrasing of the statutory
language —— particularly the cleanup standards section —— was
necessary due to length. The statutory language and the Regional
Counsel should be consulted for a more complete description of
SARA’S impact on the program.
A. Major Provisions
Clearly, the most important section of the law relating to
the remedial program is S121, cleanup standards. This section
codifies many of the existing requirements under the National
Contingency Plan (NCP) but also adds new requirements, addi-
tional detail and direction. Some of the areas addressed include
emphasis on treatment technologies in selection of remedies, meeting
State standards, and formalizing the role of Statec 3 ‘he cleanup
process. The following discussion highlights the are that should
receive particular attention and consideration during the conduct
of RI/FSS and development of RODS.
1. Applicable, Relevant and Appropriate Federal and State
Requirements .
Section 121(a) and (d) establish the requirements for the
degree of cleanup for remedial actions. The new amendments require
that remedial actions conducted on—site shall meet the applicable
or relevant and appropriate standards, limitations, criteria, and
requirements (ARAR) of State and Federal environmental laws.
Specific Federal environmental laws including, but not limited to,
TSCA. SDWA, CWA, RCRA or MPRSA, are listed as potentially applicable
to on—site clean ups. In addition, remedial actions are required
to attain specifically identified standards, such as maximum
contaminant level goals or MCLGs, formerly known as recommended
maximum contaminant levels (RMCLB), established under the Safe
Drinking Water Act and water quality criteria established under
the Clean Water Act, when relevant and appropriate under the cir-
cumstances. (See statutory language, Section 121(d), for a more
definitive description.)
The new law basically builds upon EPAs site—specific approach
to cleanup standards (found in the NCP and in the CERCEJI Compliance
Policy) which requires remedial actions to meet the applicable or
relevant and appropriate requirements of other Federal environmental
statutes. Additional RCRA regulations that become effective both
before and after reauthorization will themselves expand the specific
requirements that SARA clean—ups have to meet. Some of the most
significant requirements which can be applicable or relevant and
appropriate to Superfund re itedial actions are the land disposal
ban provisions of HSWA. The land ban requirements could potential 1
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9200.3—02
have significant impacts on the cleanup levels, treatment techno-
logies and the decisionmaking processes Superfund uses in remediating
sites. Many substantive issues pertaining to these regulations
and their impact on Superfund remedial actions and RCRA corrective
actions réiñiin to be resolved. It is clear, however, that these
regulations can affect all projects in every stage of the remedial
process. Headquarters will keep the Regions closely informed on
policy development in this area.
The new law expands the list of potentially applicable or
relevant and appropriate requirements to include promulgated State
standards, requirements, criteria, or limitations. These State
requirements should be addressed in the same manner that Federal
requirements are currently. Under certain circumstances State
ARAR5 need not be met (S121(d)(2)(c)(ii), and (d)(4)(E)]. These
circumstances include inconsistent application of State require-
ments, lack of formal promulgation of the requirement, and require-
ments that would effectively result in a statewide prohibition of
land disposal.
The addition of State requirements, criteria, standards, and
limitations as applicable, relevant and appropriate requirements
requires EPA to obtain a complete picture of State requirements
early in the RI/FS process. The Regions should develop their own
process for obtaining information from the States on applicable,
relevant and appropriate requirements. However, it is recommended
that this include:
• A request to the State to notify EPA of the specific re-
quirements that they think will be applicable or relevant
and appropriate to each alternative under examination in
the feasibility study.
• The above request made in writing, as early as possible,
but not later than the time when the remedial investigation
is 25 percent complete.
• Give the State a fixed time period for review of alternatives
for which they are to identify ARARs and ask for an off ical
documented response.
2. Preference for Permanent Solutions and Alternative
Treatment Technologies .
While the new provisions continue to require cost—effective
remedies which protect human health and the environment, the statute
places a greater emphasis on the long—term protection and reliability
of remedial actions.
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The language calls for remedial, actions which utilize permanent
solutions and alternative treatment or resource recovery technologes
to the maximum extent practicable. it establishes a preference for
remedies in which treatment which permanently and significantly
reduces tne mobility, toxicity, or volume of waste comprises the
principal element. If a remedy in accordance with the preference
for treatment and permanent solutions is not selected, an explanation
must be published [ Section 121(b)(1)(G)].
Regions should collect sufficient data during the RI/FS to
assess and compare treatment performance, reliability, and other
operating parameters. As a goal, information should also be
collected sufficient to attain an accuracy on costs of +50/—30
percent at the time of the ROD. Treatability studies frequently
will be necessary prior to the ROD to properly evaluate treatment
technologies and estimate costs. As appropriate, this would entail
pilot scale testing (e.g., confirmation burns) or, in some situa-
tions, bench scale testing (e.g., for fixation).
In evaluating alternatives, Regions should closely exainir..
1) how effectively and significantly each alternative reduces the
toxicity, mobility, and volume of the waste; 2) the degree of
protectiveness and long—term reliability each alternative affords
(including the uncertainties associated with land disposal);
3) the effect of applicable or relevant and appropriate land ban
requirements on performance targets; 4) short—term impacts posed
by each option; and 5) short—term and long—term costs of the
alternatives, including capital, operation and maintenance, and
replacement costs over the life of the remedial action 15121(b) ).
Present worth costs would then be calculated, as currently
practiced.
3. State Involvement
SARA provides broad authority and an extensive list of require-
ments for State involvement in every phase of the Superfund program
[ 5121(f)). Over the long term the Agency will develop and issue
regulations concerning State involvement which could go beyond
current Agency policy. In the interim, Regions should proceed to
work with the States to inform them of new requirements and priori-
ties as outlined in this memo.
The amended law generally does not alter State cost—sharing
provisions. 2 Given the preference for treatment established in
the new law, and the likely increase in the cost of remedies, the
value of the State cost share of the remedial response action is
likely to increase in many cases. Regions should begin discussions
with their States now to alert them to the likely impact of the
new law so that the States may begin to consider how to raise the
additional funds that are likely to be necessary.
2/ Section 104(f) has the effact of requiring a 50 percent State
match for State operated facilities.
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9200. 3—02
States should be made aware that pre—emption by the original
CERCLA on State creation of trust funds similar to Superfund has
been removed in the new law [ S114(a)].
4. Waivers
The new law adopts many of the waivers contained in the existing
NCP, but also adds some new ones. Compliance with ARARs can be
waived when:
• The remedial action is an interim measure where the final
remedy will attain the ARAR upon completion;
• Compliance will result in greater risk to human health and
the environment than other options;
• Compliance is technically impracticable;
• Other remedial actions will attain an equivalent standard
of performance to that required under the otherwise applicable
requirement, through use of another method or approach;
• For State requirements, the State has not consistently
applied the State requirement, or demonstrated the intent
to apply such requirements, at similar remedial actions;
or
• For 5104 remedial actions where compliance will not provide
a balance between the need to protect human health and the
environment at a facility and the availability of Fund
money for response at other facilities (S121 (d)(4)].
The waivers for fund balancing, technical impracticality, and
interim remedies remain essentially the same as in the NC?, while
the waiver for enforcement cases with strong public interest has
been eliminated. The waiver for unacceptable environmental impacts
has been expanded and redefined as a waiver where compliance would
result in greater risk to human health and the environment.u A
new waiver is added for actions whose standard of performance is
equivalent to a requirement through use of another method or
approach. 3 And another new waiver is added for State requirements
that have not been consistently applied.
5. Health Assessments
Under the new law, a health assessment must be conducted by
the Agency for Toxic Substances and Disease Registry (ATSDR) for
every site on the National Priorities List (NPL) on the following
schedule:
• By 12/10/88 for facilities proposed for the NPL prior to
SARA; and
3/ The Conference Report states that this waiver allows flexibility
in the choice of technology, but does not allow any lesser stanc’
or other basis such as risk—based calculatiOnu... unless the
original standard is risk based.u
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9200. 3—02
° Within one year after proposal for facilities proposed for
the NPL after SARA [ SilO].
These assesssments will assist EPA and ATSDR in determining
whether action is required to be taken to reduce human exposure to
hazardous substances, and whether additional information on human
exposure and associated health risks (i.e. epidemiological Studies
by ATSDR) is needed. The assessments will evaluate the current
and potential risk to human health posed by individual sites and
facilities (SllO(3)(G)].
While ATSDR will provide an assessment of whether existing
exposure provides a risk to public health, EPA will continue its
risk assessment (public health evaluation and endangerment assess—
Inent) activities as part of its risk management responsibilities ——
determining and selecting the remedy.
Health assessments are not required to be completed before a
project moves forward. However, ATSDR is required to complete
health assessments uto the maximum extent pract cable° before the
RI/FS is completed. The highest priority for completion of
health assessments should be any RODs the Region expects to sign
within the next several months. Regions should coordinate with
ATSDR to establish overall priorities and schedules for health
assessments as well as work closely with ATSDR during the RI
phases and development of alternatives.
B. Remedial Program Priorities
As previously mentioned in Section II (C) of this guidance,
projects in the construction phase and design projects at the time
of enactment should proceed on schedule to the degree possible.
One of the Regions’ highest priority activities should be to examine
these projects and assess their consistency with subsequent operable
units given that these subsequent units will have to comply fully
with the new law.
In addition, priorities for funding remedial projects will be
determined according to the phase that the projects were in when
SARA was passed. Priorities for remedial work should focus on
the need to fund the construction pipeline. Projects nearest
completion (remedial actions) will receive funding and staffing
first, followed by remedial designs, and on—going RI/FS5. Although
we recognize that some Regions will have a need to start new RI/FSs,
for the time being the backlog of work to be done in ensuring that
on—going projects meet or exceed the SARA requirements may cause
new starts to receive a lower priority.
V. ENFORCEMENT PROGRAM PROVISIONS AND PRIORITIES
SARA includes a number of changes to the existing enforcement—
related provisions and adds a new section (Sl22) on settlement
procedures. In general, the enforcement—related amendments adopt
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9200. 3—02
many of the provisions of the Interim CERCLA Settlement Policy and
other existing enforcement program activities. The purpose of
this section is to outline the significant new enforcement proce-
dures and equirementS and how these procedures will affect ongoing
CERCLA activif ies.
A. SETTLEMENT PROCEDURES
1. RI/FS Special Notice Procedures
Section 122(e) establishes a new negotiation procedure for
RI/PSs and RD/RAs which EPA may in its discretion choose to follow.
This procedure involves issuance of special notice to PRPS followed
by a moratorium on EPA action for a set time period. Although EPA
may continue past notice and negotiation practices, it is expected
that in most instances the negotiation procedure under S122(e) will
be followed.
EPA may issue 0 special noticeu if it determines that negotia-
tions would facilitate an agreement with potentially responsible
parties (PRPs) to either undertake or finance an RI/PS. Special
notice is required to include the following information, to the
extent it is available :
o Names and addresses of PRP5;
o Volume and nature of substances; and
o Ranking by volume of substances ES122(e)(1)).
EPA must also provide notice to the State of negotiations with
PRPB and provide an opportunity for State participation in the
negotiations (5121(f)(I)(F)3. If the release or threat of release
at the site in question may have resulted in damages to natural
resources, EPA must notify the Federal Trustee and provide an oppor-
tunity for the Trustee to participate in the negotiations
(5122(j)(1)1. To simplify the notification of Federal Trustees,
the Agency plans to provide a list of projects in the SCAP to the
Trustees as notice to participate in negotiations. Additional
guidance on coordination with Federal Trustees will be developed.
The PRP5 who receive special notice have 60 days to submit a
proposal to undertake or finance the RI/PS 1S122(e)(2)(Bfl. During
this 60 day period, EPA may not initiate the RI/PS (5122(e)(2)(A)).
Additional studies or investigations authorized under S104(b) may
be initiated and nothing precludes EPA’S authority to underta
response or enforcement activity regarding a significant threat to
the public health or the environment 1S122(e)(5)I. The Regions
may, under forward planning, initiate a scope of work or a
negotiations support document 4 . The scope of work or negotiations
4/ Under forward planning, using TES or REM contractors, at a cost
of up to S5OK per site and estimating a work period of approxi-
mately one month, the Regions may develop a site specific unegot 4
tions support document.u In general, this work would include
collecting background information, conducting a site visit and
developing a scope of work. More detailed guidance on the
scope and use of these documents will be forthcoming.
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9200. 3—02
support document should be provided to PRPs when notice is given
so they can prepare art adequate proposal. Initiating the scope
of work or_negotiations support document will not constitute
starting tWe RI/PS under the moratorium.
If a good faith proposal 5 is submitted within 60 days of notice,
the moratorium limiting initiation of the RI/Ps continues for a
total of 90 days from the date of notice.
If settlement is achieved, the agreement for the conduct or
financing of the RI/PS must be in the form of an Administrative
Order on Consent or a Consent Decree (5122(d)(3)3. Administrative
Orders on Consent are the preferred format for RI/PS agreements,
except where an action has been filed in court.
The agreement may authorize the PRPB to conduct the RI/FS only
when the following conditions are met:
o EPA determines that the PRPs are qualified to do the RI/PS;
o EPA arranges or contracts for a qualified person to assist
in overseeing the conduct of the RI/PS 6 ; and
o The PRP5 agree to reimburse EPA for the cost of such
oversight 1S104(a)i.
The settlement agreement for the RI/PS need not contain a find-
ing of imminent and substantial endangerment to the public health
or the environment (5122(d)(l)(A)].
If a good faith proposal is not submitted within sixty days
of notice, or negotiations fail after submittal of a proposal, EPA
may initiate the RI/PS (S122(e)(4)i.
5/ In general, a good faith proposal is a proposal in writing,
in which the PRP5 make a showing of their qualifications and
willingness to conduct or finance the RI/PS which, and at least,
addresses the major elements of the workplan or statement of work.
6/ The Statement of Managers refers to a qualified pereon as
someone with the professional qualifications, expertise and
experience necessary to provide additional assurance that the
President is conducting meaningful oversight. This person
could be a State employee, employee of another Federal agency
or any other 0 qualjfied person EPA may contract with to perform
the oversight. This provision does not replace the need for
in house EPA oversight, but rather supplements it, much like the
current use of TES/REM contractors or the COE for oversight.
Moreover, it is still EPA policy to require reimbursement
for the cost of its oversight.
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9200.3—02
2. Ongoing RI/FS Activities
If notice letters have already been sent for RI/FS negotiation’
and Regiona are prepared to negotiate or have inititiated negotia-
tions, parties do not have to receive another notification regarding
their liability for the conduct of the RI/PS unless the Regions
desire to use the moratorium procedures in S122(e). The Regions
must bear in mind, however, that the remedy eventually selected
for these sites must comply with S121, cleanup standards.
a. Ongoing Negotiations for RI/PS
In ongoing negotiations for RI/FSs, PRPs should be informed
of the requirements of S121 for cleanup standards. In particular
these include, but are not limited to, consideration of alternatives
that meet ARAR reguirements, the statutory preference for permanent
remedies, and notification and involvement of States in determining
ARAR8 and concurring on remedy selection. EPA must also arrange
for a qualified person to assist with the oversight of the RI/FS
and the PRP5 must agree to reimburse EPA for that oversight.
b. Ongoing RI/PS
An RI/FS currently being conducted by PRP8 should be reviewed
to assure that alternatives evaluated include those that comply
with S121. This review will be similar to the evaluation that
will be conducted for ongoing fund—financed RI/PS5. (See section
bn cleanup standards.) Sections of Administrative Orders on Consent
or Consent Decrees may need to be revised to reflect that the
final remedy must meet the requirements ot S121. A letter should
be sent to the PRPs informing them of the new provisions and pro-
viding them with an opportunity to discuss the changes to the
Administrative Order or Consent Decree. (A sample letter is being
developed and will be sent to the Regions shortly.)
c. New Negotiations for RI/PS
As EPAs current policy suggests, all notice letters should
be issued to the PRP8 as early as possible. Responsible party
searches should be conducted concurrently with the expanded site
inspections (ESI) and notice letters should generally follow shortly
after proposal on the NPL. If the Region chooses to invoke the
S122(e) uspectal notice and negotiation procedure, the notice
letter should specifically reference that fact and explain that
the 60—day tilneframe in which the PRP must make an offer begins
with receipt of the notice letter. Using the notice letter
as the vehicle to begin the moratorium on initiation of the RI/FS
should avoid any potential delays when EPA ii actually ready to
commence the RI/PS. A model administrative order on consent and a
detailed scope of work for the RI/PS should be sent to the PRPa at
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the time notice is given. If the Region chooses not to invoke the
5122(e) procedure, the notice letter should state the reasons why
the procedure is inappropriate (5122(a)],
3. KD/RA Procedures
If EPA decides to invoke the negotiation procedures in 5122(e)
for the remedial action, EPA must again provide special notice to
the PRPs and provide information on volume, nature and ranking of
wastes. The Statement of Managers indicates that this information
•Should be routinely made available at this time. This is a
separate notice and information release from the RI/PS notice.
State and Federal Natural Resource Trustees must also be notified
and provided an opportunity to participate in the negotiations.
Notice for RD/RA negotiations should generally be given as early as
possible, but no later than when EPA has identified a preferred”
remedy.
Again, as with the RI/FS procedures, the PRPs have sixty days
to make a good faith proposal to conduct or finance the remedial
action. A good faith proposal is a proposal in writing, in which
the PRPs make a showing of their qualifications and willingness to
conduct or finance the major elements of the ROD. During these
sixty days, EPA may not initiate remedial action under 5104(a) or
under 5106. Additional studies authorized under 5104(b), however,
including remedial design may be initiated during the negotiation
period.
If a good faith proposal is submitted, the moratorium on
initiation of a S104(a) response action or the issuance of S106
Administrative Order or the filing of a 5106 civil action continues
for 120 days from the date of notice.
An agreement with PRPs for remedial action must be in the
form of a consent decree. Several sections of the new statute
affect the terms which can be included in such a decree. First,
S121(e)(2) requires that the decree contain stipulated penalties.
These penalties are in addition to the penalties which can be
collected under 5122(e). Second, because S113(j)(2) establishes
that EPA decisions relating to remedial measures are to be judged
under the arbitrary and capricious standard, all dispute resolution
provisions must provide that in any dispute concerning the response
action the court will uphold the EPA response decision unless the
objecting party can demonstrate on the administrative record that
the decision was arbitrary and capricious or otherwise not in
accordance with law. Finally, in 5122(f) Congress has established
the conditions upon which a covenant not to sue can be granted. A
separate section below explains how this statutory provision affects
settlement terms.
The proposed agreement must be filed with the Court at least
30—days before final approval is sought from the Court and persons
not party to the agreement must have an opportunity to comment
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9200. 3—02
before final judgment. (S122(d)(2)(B)1. This requirement is con-
sistent with_current Department of Justice (DOJ) practice [ 28 CFR
50.7)
It is important to note here that under the new statute, EPA
retains its authority to issue unilateral administrative orders
for RD/RAs, if the settlement fails or EPA has decided not to pursue
a settlement.
a. Application to Ongoing Negotiations
Except for the RODs/EDDs which are subject to the ‘grand—
father provision, any remedies which are the subject of ongoing
negotiations for RD/RA must also be evaluated for compliance with
S121. Particular attention should be paid to the application of
State standards, preference for permanent remedy, use of alternate
concentration limits (ACLs) and cost effectiveness.
Any ongoing negotiations f or RD/RA that were proceeding in
the form of an Administrative Order on Consent must be redirected
to a Consent Decree. These Consent Decrees must incorporate the
new statute’s provisions on covenants not to sue, stipulated penal-
ties, and deference to Agency decisionmaking. The Department of
Justice should be notified of these cases and brought into the
negotiations.
b. Application tO New Negotiations
If ‘special notice’ is given to provide the PRP5 an opportunit,)
to undertake the RD/RA, EPA anticipates that initiation of the
remedial design during the first 60—day period will only occur
in exceptional circumstances. Initiation of remedial design during
this period must have advance concurrence from Headquarters. If
the PRPs submit a good faith proposal, initiation of the design
during the second 60—day period should again be the exception and
requires concurrence from Headquarters.
4. Releases or Covenants not to Sue
Section 122(f) authorizes EPA to provide to PRP5, in certain
circumstances, covenants not to sue for any liability, including
future liability, under CERCL.A for a release or a threatened release
of a hazardous substance addressed by a r.medial action. This pro-
vision adopts with only a few changes, the guidance on this subject
set forth in the Interim CERCI.A Settlement Policy. Releases from
liability are to be in the form of a covenant not to sue.
The appropriateness of providing a covenant not to sue from
liability is, according to S122(f)(1), to be based on the considera-
tion of such factors as:
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9200. 3—02
I) Effectiveness and reliability of remedy;
2) N PtIre of risks remaining;
3) Extent performance standards are in decree;
4) Extent action provides complete remedy;
5) Extent technology used is demonstrated to be effective;
6) Whether source of funding would be available for any
additional remedial actions; and
7) Whether action will be carried out in whole or significant
part by PRPs.
Section 122(f)(2) makes it mandatory that covenants not to sue for
future liability be provided under certain circumstances for redis—
posal liability and for the portion of the remedial action which
involves the permanent destruction or treatment of the hazardous
waste. No covenants not to sue for future liability, however, may
take effect until EPA certifies that the remedial action has been
completed and any covenant issued under S122(f) is conditioned
upon satisfactory performance of the remedial action.
If a covenant not to sue for future liability is not
mandated under S122(f)(2), the covenant must include a reopener
clause which allows EPA to pursue PRPs concerning a release or
threat of release that arises out of conditions which were unknown
at the time EPA certified that the remedial action was completed
(S122(f)(6)(A)J. The reopener should not be conditioned on the
presence of an imminent and substantial endangerment. EPA is also
authorized to include any other terms in the reopener necessary to
protect public health, welfare, and the environment (5122(f)(6)(c)].
In ‘extraordinary circumstances,’ the reopener clause may be omitted
if the terms of the agreement are sufficient to provide assurance
that public health and the environment will be protected from
future releases (S122(f)(6)(B)J. Regions should still include the
second reopener for ‘new scientific information’ contained in the
Interim Settlement Policy.
The new language on covenants not to sue is effective immediately
and should be included in all consent decrees involving remedial
action. At a minimum, consent decrees must specify that any covenant
not to sue for future liability does not take effect until the
remedial action has been completed, that the covenant not to iüe
is predicated upon satisfactory performance of the remedial work,
and that the reopener is not limited to imminent and substantial
endangerment situations.
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Additional guidance on covenants not to sue is being developed.
Until such guidance is available, Regions must consult with Head-
quarters in advance of any agreement that will provide a mandatory
covenant not to sue under S122(f)(2) or contain a no reopener
clause on the basis of the uextraordinary circumstances provision.
5. Additional Parties
If during the course of uspecial noticeu negotiations, addi-
tional PRP5 are identified, EPA may bring those parties into the
negotiations 1S122(e)(2)(C)). However, the addition of new parties
does not affect the original date of notice and commencement of
the moratorium provision. (This applies to RI/FS negotiations as
well.)
S. Additional Enforcement Related Amendments
1. Contribution Protection
Section 113 of CERCL.A has been amended to provide contri-
bution protection statutorily to PRPs for matters addressed in an
administrative or judicially approved settlement. The settlement
reduces the potential liablity of other PRP5 by the amount of the
settlement. Since contribution protection is now provided by law,
it is no longer appropriate to include such a provision in the
consent decree.
2. Pre—enforcentent Review
Section 113(h) has been amended to include language on pre—
enforcement review. The amendments state that Federal court
jurisdiction to review challenges to removal and remedial actions
is limited to the following cases:
o Actions under S107;
o Actions to enforce an order under 5106(a);
o Action for reimbursement under S106(b)(2) 7 ;
o Action under 5106 where U.S. has moved to compel
remedial action; and
o Action under S310 (Citizen Suits) that alleges the response
action was in violation of CERCLA.
7/ Any person who receives and complies with an Administrative Order
may petition the Agency for reimbursement within 60 days after
completion of the required action. Reimbursement may be obtained
if a party shows by a preponderance of the evidence that it is
not liable under S107 or if the party can demonstrate that the
action ordered was arbitrary and capricious.
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—.17—
9200.3—02
With the exception of the new citizen suit provision and the
new provision on reimbursement, this new language confirms the
Agency’s current position that parties may not take any action
challeng in9 the Agency’s selection of remedy before an enforcement
action is taken, If the parties challenge the selection of remedy
following an enforcement action, that challenge is limited to
judicial review of the administrative record.
3. Judicial Review/Administrative Record: S113(j )
SARA limits the judicial review of adequacy of any response
action taken to the administrative record. Judicial review, including
review of RODs signed before the date of enactment, will be on the
administrative record. EPA is required to establish an administrativ ,
record which is to be the basis for the selection of any response
action. An administrative record is required for all response
actions: removal and remedial, fund—financed and enforcement. The
record must also be available for public review.
Until regulations on the administrative record are promulgated
under S113(j), the administrative record consists of all items con-
sidered by the Agency in selecting the response actions and includes
items developed and received under the current procedures for
selection of the response action including public participation
procedures. These existing procedures are set out in the June
1985 RIlE’S Guidance and the February 1985 Draft ROD Guidance.
The Agency will be developing detailed guidance on what
documents need to be maintained in the record and develop, where
necessary, a process for organizing the record for sites where the
response action has been selected.
Because the record is the only basis for review of the selec-
tion of the response action by PRPs or citizen suits, it is extremely
important that the Agency properly document and maintain all the
information it uses for making the selection of response action.
The Regions must closely adhere to the procedures outlined in the
RI/PS and ROD Guidance.
C. Priorities for Enforcement Activities
The Regions, in consultation with Headquarters, will need to
re—evaluate ongoing enforcement activities and develop priorities
for assuring compliance with the new amendments. The following
should be the first priorities for Regions in re—evaluating
their enforcement activities:
I. Review of sites scheduled for RI/PS and RD funding in the
first and second quarters of F! 87. Regions must make sure
that proper notice and information exchange with PRPs has
occurred. (This should be consistent with SC P targets.)
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—18—
9200. 3—02
2. Review draft settlement documents to ensure incorporation
oL he provisions discussed in VA.3.
3. Review Agency position in ongoing negotiations for RD/RA
(where consent decree has not been lodged or ROD/EDD has not
been signed) and assure consistency with new requirements.
4. Review of PRP conducted RI/FSs that ace nearing completion.
PRP5 must be informed of the new statutory requirements and
Regions must assure that selection of remedy will be consis-
tent with S121.
5. Review all other RI/FS being conducted by PRP5 under adrninis-
trative Orders or Consent Decrees. PRPs must be notified
of new requirements and appropriate revisions to the Order
or Decree to reflect new requirements should be made.
0. Additional Enforcement Provisions
SARA includes several other provisions that affect enforcement
activities. In general, however, these additional provisions will
not be employed by the Agency until they have been delegated from
the President to the Agency and the Agency has developed policies
and guidelines for their use. A brief description of these provi-
sions has been provided.
1. Response Action Contractor (RAC) Indemnification
Section 119 gives EPA discretionary authority to indemnify
RACs against liability (including the expenses of litigation or
settlement) for negligence arising out of the RAC’s performance in
carrying out response action activities under CERCLA [ S119(c)(1)).
The amendment does not allow EPA to indemnify RACs whose conduct
or activities are deemed to involve gross negligence, intentional
misconduct, or for conduct for which they are strictly liable
under State law ES119(c)(l)]. RCRA facility owners and operators
and publicly owned treatment works (POTWs) are also precluded from
EPA indemnification (S119(c)(5)(D)].
2. Non-Binding Preliminary Allocation of Responsiblity
Section 122(e)(3) of SARA requires the Agency to develop
guidelines for preparing non—binding preliminary allocations of
responsiblity (NBARs) for PRPS. These guidelines may include
such factors as volume, toxicity, mobility, strength of evidence,
ability to pay, litigative risk, etc. The Agency, in its discretion,
may, after the RI/PS, provide an NBAR to the PRPs. NBARS are not
admissable as evidence, are not subject to judicial review and do
not constitute an apportionment or other statement on the divisibility
of harm or causation.
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—19—
9200. 3—02
Working with the Regions, Headquarters is currently developing
the guidelines for NBARs and plans to develop several pilot projects
beginning early next year.
3. De Miniinjs Settlements
Section ]22(g) of SARA authorizes EPA to reach final settle-
ments with PRPs if the settlement involves a minor portion of the
response Costs and the waste sent to the site by the PRP Is minimal
in comparison to the other hazardous substance at the facility in
terms of amount and toxicity. Final settlements also may be entered
with landowner PRPs if the landowner did not conduct or permit
the disposal of hazardous waste at the site, did not contribute to
the release of hazardous substances by an act or omission, and did
not buy the property with the knowledge that waste had been disposed
of at the site. PRPs claiming a defense to liability as opposed
to being less culpable than other PRPs must meet the new requirements
of 5101(f) to establish that defense.
These Ude minimisu settlements may be in the form of an
Administrative Order or a Consent Decree. Administrative Orders
for facilities where total response costs exceed $500,000 must
have the written approval of DOJ.
The Agency has several de zninimis pilot projects underway
and is concurrently developing Agency—wide guidance for de ininimis
settlements.
4. Cost Recovery Settlements
Section 122(h) authorizes any agency with authority to respond,
to compromise and settle claims under 5107, if the claim has not
been referred to DOT. DOIT must give written approval of any claim
compromised where the total response costs exceed $500,000.
Procedures and guidance on compromising claims are under
development.
VI. CROSS—CUTTING PROVISIONS
A. Scope of Response Action
SARA contains three prohibitions on response actions that
generally reflect existing agency policy. Fund—eligible response
actions are generally prohibited with respect to:
• Releases of naturally occurring substances;
• Releases from products which are part of buildings or
structures and result in exposure therein; and
• Contamination of drinking water supplies due to normal
deterioration of the system.
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—2U—
9200. 3—02
The Agency may respond to these situations in cases of en ergency
where no other party can respond in a timely manner [ S104(c)].
B. Off-Site Policy
The new statute reflects the current off—site policy in
most respects. The existing off—site policy remains in place as
is, except as altered by the Statute, If aspects of the off—site
policy are more stringent than statutory requirements, these pro-
visions remain in effect.
The statute requires that hazardous substances, pollutants
and contaminants be disposed of off—site only at facilities in
compliance with (i.e. having no significant violations) RCRA
Subtitle C or TSCA or other applicable Federal laws where appro-
priate, and applicable State requirements (5121(d)(3)].
Disposal at off—site land disposal facilities is further
restricted in that:
• The unit receiving the waste must have no release into
ground water, surface water, or soil (other than de
minimus releases into soil), 8 and
• Any releases from other units must be controlled under an
approved corrective action program (either through a per-
mit or administrative order).
With respect to the above statutory conditions, Regions will
need to examine commercial facilities to determine if there are
significant violations of State standards, or if there are releases
from the proposed receiving unit, in order to determine whether the
off—site facility is eligible to receive CERCLA waste. (Please
note, as per previous guidance, the fact that the facility is in
assessment monitoring does not mean that the facility is ineligible.
Evidence of a release determines eligibility/ineligibility.) In
addition, Regions must examine whether there are releases from other
units (regulated units or solid waste management units). If such
releases are present, the facility must be under an order or permit
schedule of compliance to correct such releases in order to be
eligible to receive CERCLA waste.
The statute also requires that notice of ineligibility determina-
tions made under the Off—Site Policy be given to facilities. Until
regulations are developed, notice must be given per the statutory
requirements. Those requirements are met by following the notice
procedures set forth in OSWER Directive Number 9330.2—05 (CERCLA
Off—Site Policy: Providing Notice to Facilities; May 12, 1986).
8/ The Conference Report states that this language is intended to
preclude transfer or disposal of hazardous waste or constituents
thereof into unlined units and lined units with releases other
than de minimis releases into soil.
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—21—
9200. 3—02
C. Technical Assistance Grants
The new -amendments provide authority to issue technical assis-
tance grants of up to $50,000 to any group of individuals which
may be affected by a release or threatened release at any facility
which is listed on the NPL... (Section 117(e)]. SARA requires
that rules be issued governing these grants. These rules are
under development and we plan to issue them as interim final regu-
lations. Information on how citizens can apply for the grants
will also be issued at that time.
D. Leaking Underground Storage Tank Trust Fund
SARA also contains a section amending Subtitle I of RCRA to
establish a Leaking Underground Storage Tank Trust Fund which is
to pay costs incurred fcr corrective action and enforcement action
resulting from respons& to leaking underground petroleum storage
tanks. These amendments also require establishment of financial
responsibility by private parties for purposes of corrective action
and compensation resulting from accidental tank releases (S2051.
In general, responsible parties will provide the first line of
response action for releases from leaking tanks. When responsible
parties are not available to conduct the response, States, acting
-under cooperative agreements will determine the need for and type
of response actions. The Federal government will conduct responses
only where the release constitutes a major public health emergency
and no State authority or responsible party is able to respond in
a timely manner. We anticipate that a Federal response will be
minimal. In addition to responding to emergencies, a major priority
for the Regions will be to negotiate cooperative agreements with
the States.
Because the removal contracts and program personnel are
experienced in conducting response actions, responsibility to under-
take these few Federal actions will be assigned to them. The new
Emergency Response Clean—up Services contracts and Technical Assistance
Team contracts have been modified to include responses under Subtitle
I of RCRA using UST Trust Fund appropriations. These contracts will
be available for use later this fall.
UST program authorities are new authorities that are currently
not delegated to the Regions. These provisions [ Section 205 of
SARA) amend the Solid Waste Disposal Act and are given, by statute,
to the Administrator. Headquarters’ sign off will therefore be
required on response actions in this area.
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—22—
9200. 3—02
VI I. IMPACT ON DELEGATIONS
A. Executive Delegations
Like CERCLA, the new law provides direct authority, in most
cases, to the President rather than directly to EPA or another
Federal agency. Some authorities in the new law will, therefore,
have to be delegated to EPA and other Federal agencies through a
revision to Executive Order 12316 before they can be implemented.
The new law affects current delegation of authority as well as
future delegations of new authority. A list of authorities that
have beers delegated, as well as those that are new or changed, will
be provided shortly.
B. Internal Delegations
Existing internal delegations also remain in effect unless
they are in conflict with the new law, and/or are unavailable for
delegation until the Executive Order is revised. The language of
each existing internal delegation will be evaluated.
If an existing internal delegation is very specific, and a
new provision is beyond the scope of the delegation, it is not
automatically delegated to the Region and must be delegated.
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LIST OF CONTACTS
TRANSITION GUIDANCE
OVISIONS NAME & TITLE PHONE
Office of Emergency &
Remedial Response
Overview: Program Clem L. Rastatter 382-2180
Implementation/Guidance Executive Officer
Clean up Standards! Tom Sheckells, Chief 382-2339
Permanent Remedy Remedial Analysis Branch
Applicable Appropriate & Arthur Weisaman, Acting Chief 382-2182
Relevant Standards Policy Analysis Staff
State Issues Sam Mbr kas, Chief 382-2443
State & Regional Coordination
Branch
Health Authorities Elaine Stanley, Deputy Director 382—4632
Hazardous Sites Control Division
Grandfathering of Elaine Stanley, Deputy Director 382—4632
Section 121 Hazardous Sites Control Division
moval Provisions Hans Crump, Chief 382—2188
Response Operations Branch
UST Romoval Actions Hans Crump 382—2188
Response Operations Branch
Office of Waste Programs
Enforcement
Overview: Program John Cross, Chief 475—6770
Implementation/Guidance Guidance & Oversight Branch
Settlements/NotificatiOnS Janet Farella, Chief 382—2034
Oversight & Documentation Section
Administrative Records Janet Farella. Chief 382—2034
Oversight & Documentation Section
Indemnification & Response Bob Mason, Chief 382—4015
Action Contracts Guidance Section
Non—binding Allocation of Debbie Wood 475—8715
Responsibility Policy Coordinator
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Guidance on Implementation of the
“Contribute to Remedial
Performance” Provision
-------
3 EPA
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removal actions to contribute to the efficient performance of long—term remedial
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ulrective iou.u —j.
GUIDANCE ON IMPLEMENTATION OF THE
“CONTRIBUTE TO REMEDIAL PERFORMANCE” PROVISION
1. INTRODUCTION
Section 104(b) of the Superfund Amendments and Reauthorization Act of
1986 (SARA) amends section 104(a) of CERCLA to include the statement that any
removal action undertaken by the President, or by any other person referred to
in section 122* of the new law, should, to the extent practicable, contribute
to the efficient performance of any long-term remedial action with respect tc
ttte release or threatened release concerned. Thi•s guidance document explains
how to implement this provision, and includes guidelines on the appli.cability
of the requirements, the definition of “contribute to efficient performance,”
exceptions, documentation and coordination. This document should be used in
conjunction with the general removal procedures described in the Superfund
Removal Procedures -— Revision Number Two, August 20, 1984, or, as may be
amended.
2. APPLICABILITY
This provision will be applicable to removal actions at all sites -—
final National Priorities List (NPL), proposed NPL, and non-NPL: The term
‘long-terin renedial action” as used in this provision will therefore refer
a remedial action to be taken by the EPA, State, or a private party.
. DEFINITION 0F”CONTRIBUTE TO EFFICIENT PERFORMANCE”
3.1 Purpose
This provision promotes the performance of removal actions that address
threats more efficiently by considering the overall site cleanup before the
start of the action. To the maximum extent practicable, removal actions
should be designed to avoid wasteful, repetitive, short-term actions that do
not contribute to the efficient, cost-effective perforriance of long-term
remedial actions to be taken by the EPA, State, or other party. The major
objective of this requirement is to provide maximum orotection of public
health and the environment at minimal cost by avoidance of removal restarts.
The focus of this provision is on avoidance of restarts that are due to recur-
ring threats that were not adequately abated In the original removal action,
and threats from deteriorating site conditions that should have been foreseen.
There are other circumstances, however, where removal restarts may be
necessary to meet program goals. For example, a removal action may be a phased
response. The first removal action might involve site stabilization and waste
‘ ection 122 refers to potentially responsible parties (PRPs) who have entered
oto settlements with EPA.
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characterization. The site may then be demobilized and closed out to allow
removal personnel to prepare an analysis of waste treatment/disposal options.
Once an option is se 1 ected, a removal restart would be implemented to complete
the waste disposition phase. In this case, the removal restart would actually
contribute to achieving a more efficient cleanup. emoval restarts may also
occur in an attempt to meet other program goals, such as pursuing responsible
party (RP) cleanups or State assumption of removal action operation and main-
tenance requirements. An RP may take over a removal action from EPA, but EPA
may have to initiate a restart if the RP Is not performing an adequate cleanup.
The “contribute to efficient performance” provision was not intended to conflict
with these other program goals. As stated above, the provision was intended
to reduce removal restarts due to inadequate planning at the start of the
acti on.
3.2 Implementation
To meet the goal of avoiding removal restarts, response personnel must
adequately assess the threats posed by the hazardous substances on a site and
consider how the removal action would most effectively contribute to the long—
term remedy. The following questions should be considered:
1. What is the long-term cleanup plan for the site?
This provision requires removal actions to contribute to the
performance of the “long—term remedial action.” At an NPLsite,
if the Record of Decision has already been signed, then comparing
the removal action to the remedial cleanup plan is a straight-
forward task. However,, for proposed NPL sites and for many final
NPL sites, the remedial action may not have been selected when the
removal action is implemented. In these cases, response personnel
will be limited to Identifying a range of feasible remedial
alternatives. esponse personnel need only review existing site
Information and use their best professional judgment. Removal and
remedial personnel in the Region must coordinate with each other in
this effort. It is the responsibility of the Region to establish
app ropri ate coordi nation mechani sms.
At non—NPL sites, response personnel should, where practicable,
consult with the party performing the long-term response action at
the site (e.g., State, RP) to determine the proposed approach for
the long—term cleanup. It is recognized that it may be more difficult
to ascertain the remedial action at non-NPL sites. Response personnel
should use their best efforts to coordinate with the party performing
the long—term remedy. At many non-NPL. sites, there may be no plans
for another party to conduct a rem dfal action.
2. Which threats will require attention prior to the start of the
long—tern action?
The February, 1986 National Contingency Plan (NCP) broadened
removal authority by allowing removal actions to be taken in response
to “threats” rather than just “immediate and significant” threats.
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S • I_ — — — — e — S —
This expanded authority will allow a removal action to address any
near-term threats that iay arise prior to the start of the Iong—tern
action, provided the threats r eet the removal criteria established in
section 300.65 of the current NCP. Potential threats should be identi-
fied when the first removal action at a site is impleriented to avoid
the need for future removal restarts. Therefore, in addition to
identifying immediate threats, response personnel should also identify
potential near-term threats from contaminant migration, deteriorating
site conditions, etc. This assessment is particularly important if a
decision is made to leave surface hazardous substances on site after
the removal action is completed.
Response personnel must identify threats that may arise prior to
the start of long-term actions, but the length of time before long-
t riii actions will begin will vary from site to site. For example, for
NPL sites where a ROD has been signed, the time frame that response
personnel must consider will be shorter than for NPI. sites where the
Remedial Investigation/FeasibIlitY Study (RI/FS) has just been
initiated. Of course, at some NPL sites, the remedial program may
plan to conduct an operable unit during the RI/FS if time permits.
In this case, the time period to consider would again be shorter.
Response personnel should consult with the party performing long—
term action at the site to determine when such action will begin,
and use their best professional judgment.
At non—NPL sites where there are no plans for another party to
undertake a long—term cleanup, all threats and potential threats that
meet the removal criteria in the current NCP should be identified.
3. How far should the removal action go to assure that the threats are
adequately abated?
The expanded authority in the 1986 NCP will allow more complete
removal actions to to be taken. Removal actions no longer have to
stop when emergency situations are mitigated, but can continue, or be
initiated, where needed to ensure that near-term threats are adequately
abated. Measures that provide only temporary protection, insufficient
to last until long-term actions begin, should be avoided to the extent
possible. However. as noted above, consideration must also be given to
the availability of other response mechanisms (e.g., State action,
remedial operable unit) to initiate long-term action in a timely manner.
Whether or not the removal action should address all surface
hazardous substances must be decided on a site-by-site basis.
A removal action would be appropriate whenever surface hazardous
substances may present a threat (as established in section 300.65 of
the current NCP) before the start of long—term action. How the
removal action should address the surface hazardous substances will
also depend on site-specific conditions and the long-term cleanup plan.
With the increased emphasis on using alternative technologies and new
restrictions on land disposal, remedial actions may often include on—
site treatment if surface contamination is extensive. In this case,
the removal action may consist of consolidating and stabilizing the
-------
substances on site to await treatment. It is important to design the
removal action to ensure that the materials are adequately stabilized.
At other sites, surface hazardous substances may constitute only a
small part of the problem: may ni t be safely stabilized for a long
period of time; or may be more efficiently addressed as one unit by
immediate treatment or disposal. In these situations, it may be more
appropriate for a removal action to include final disposition of all
surface hazardous substances. The conditions at the site and the long—
terni cleanup plan will determine the appropriate scope of the removal
response.
At non-NPL. sites where there are no plans for another party to
perform long—term remedial action, the threats that meet the removal
criteria in the current NCP should be completely cleaned up, if possible.
The avoidance of removal restarts due to recurring threats is the ultimate
goal. If mitigation of the threats that meet the NCP removal criteria
results in complete site cleanup (i.e., no further Federal response
required), the “contribute to efficient performance” provision is fully
satisfied.
In considering all of the factors described above, the major
determinant of how far the removal action should go to assure threats
are adequately abated will be the statutory limits on removal actions.
Removal actions should contribute to the efficient performance of
remedial actions to the maximum extent practicable given the S2 mullion/
12 month limits on removal actions. (An exemption to the limits may
be granted where the site qualifies under the “emergency” or
“consistency” waivers.)
With regard to cleanup standards, this provision does not compel
the removal program to lower its cleanup standards. Rather, the pur-
pose of this provision is to improve the design of removal actions
such that after cleanup standards are established for a removal site,
the chosen removal action will address those substances targeted for
cleanup in a manner that avoids the need for removal restarts.
For example, the removal program has historically used 50 ppm as a
benchmark in determining the appropriate extent of cleanup of PCB—
contaminated soil. The “contribute to efficient performance”
provision would not affect this number, but would direct that the
method chosen to address soil contaminated above 50 ppm should be
designed.to avoid the need for removal restarts to the extent
practi cable.
4. Is the proposed removal action consistent with the long—term remedy?
The removal action that is chosen should be consistent with
long—term actions at those sites where further cleanup will be taken.
“Consistent” is defined in Its broadest sense and may be characterized
as a range of possible approaches. At one end of the spectrum, removal
actions may be found consistent If they do not hinder or interfere with
the remedial action to be taken. At the other end of the spectrum, removal
actions may be found consistent because they contribute in a positive way
-------
to the long—term cleanup plan. For example, a removal action to
provide carbon filters to homes with contaminated drinking water as
an interim measure would not interfere with a long—term remedial plan
to clean up the contaminated aquifer. A removal action to solidify
sludge could, however, hinder a long-term plan to incinerate the waste
and should, therefore, be avoided if other approaches are feasible .
A removal action to remove surface drums from a landfill could contribute
In a positive way to a remedial plan to clean up the site.
Removal actions may be found consistent if they fall anywhere within
this range; the most appropriate approach will depend on site—specific
factors. It is recognized that in some cases, the removal action may
create additional work for the remedial action and yet still be the most
appropriate approach for the site. For example, a common removal action
is capping contaminated soil to prevent migration and human contact in
the time period before remedial actions begin. Although the cap would
have to be removed to implement a long—term plan to excavate and treat
the soil, it may still be the mos t effective method to mitigate the threat
in the short-term. Protection of public health and the environment, as
well as technical feasibility, must always be considered. If such an
action is selected, the rationale for selection should be explained in the
Action Memorandum. (See Section 5.)
The answers to these four questions will help determine what type of
removal action is needed and how it can be designed to contribute to the
efficient performance of long-term remedial actions. These questions are
‘ided as general guidelines to indicate the various factors that should
onsidered in implementing this provision of SARA. A written analysis of
tne answers to each of these questions is not required. The conclusions
should be. documented in the Action Memorandum. (See Section 5.)
4. EXCEPTION
The only situatIon where it may not be feasible to consider how the
proposed removal action relates to the long—term remedy is in an emergency.
In such cases, response personnel may need to take whatever immediate
measures are required to protect the public health, welfare, and the
environment. -
5. DOCUMENTATION AND COOROINATION
The Action Memorandum should specifically cite the “contribute to
efficient performance” requirement and briefly discuss how the proposed
removal action relates to long-term remedial actions, to the extent
practicable. (See the Superfund Removal Procedures for information on the
preparation of Action Memoranda.) If the proposed removal action completes
the cleanup and no further action is required, this should be so noted. If
only minimal information is available about long—term actions, this should
also be explained. If an emergency existed that precluded an analysis of how
the removal related to long—term actions, this should be noted. Finally, if
‘tpliance with this provision would conflict with other program goals (e.g.,
suit of RP cleanup), this shoud be explained.
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uirec 9360.-
Compliance with this requirement does not require special approval; the
Action Memorandum should be approved by the established concurrence chain in
the Region or in Headquarters, if appropriate. rn making the determination,
however, it will be the responsibility of the OSC to coordinate with the party
that will undertake the long-term remedy (for those sites where additional
cleanup measures will be taken).
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SCQke of’the CERCLA Petroleum Exclusion
Under Sections 101 (1 4) and 104(a)(2)
-------
cc PP 5
10
4%
_____ Ut* 1ITED STATES ENVIRONMENTAL PROTECTION AGENCY
i WASHINGTON 0 C 20460
t
JUL 3 11987
°..‘c or
GCNtR* COU , u_
MEMORANDUM
SUBJECT: CERCLA Petroleum Exclusion
•0
FROM: Lisa K. Friedman
Associate Genera Counsel
Solid Waste & Emergency Response D1vj jo
TO: Addressees
Attached is OGC’s long-awaj memo on the scope of
the petroleum exclusion under CERCLA. If you have any
questions about it, please call me (382—7706), Mark Greenwood
(382-7703), or Carrie Wehling (382-7706).
Attachment
Addressees: Gene Lucero (WH-527)
Lloyd Guerci (WH—527)
Tom Adams (LE-133)
Steve Lelfer (LE—13450
Regional Counsels, Regions 1—X
Dave Buente, DOJ
Peggy Strand, DOJ
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UNITED STATES EN’. IRQNi 1ENTAL PROTECTION AGENCY
WAS N TON OC 203€G
I11L 1I987
I,
MEMORANDUM
SUBJECT: Scope of the CERCLA Petroleum Exclusion Under
Sections 101(14) and 104(a)(2)
FROM: Francis S.
General Counsel (LE-130)
TO: J. Winston Porter
Assistant Administrator
for Solid Waste and Emergency Response (WH-562A)
One critical and recurring Issue arising In the context of £
Superfund response activities has been the scope of the petroleum
exclusion under CERCL.A. Specifically 1 you have asked whether used
oil which is contaminated by hazardous substances is considered
petroleum’ under CERCLA and thus excluded from CERCIA response
authority and liability unless specifically listed under RCRA or
some other statute. For the reasons discussed below, we believe
that the contaminants present In used oil or any other petroleum
substance are not within the petroleum exclusion. Contaminants,
as discussed below, are substances not normally found in refined
petroleum fractions or present at levels which exceed those
normally found In such fractions. If these contaminants are
CERCLA hazardous substances, they are subject to CERCLA response
authority and liability.
Background
Under $ e Comprehensive Environmental Response, Compensation
and L1ab1It y Act of 1980 as amended (CERCIA), governmental
response a thorlty, -release notification requirements, and
liability *rilarg.ly tied to a release of a hazardous sub-.
stance. SectIon 104 authorIzes government response to releases
or threatened releases of hazardous substances, or pollutants or
contaminants. Similarly, liability for response costs and damages
under Section 107 attaches to persons who generate, transport or
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—2—
dispose of hazardous substances at a site from which there
is a release or threatened release of such substances. Under
SectIon 103, a release of a reportable quantity of a hazardous
substance triggers notification to the National Response
Center.
T) e term hazardous substance’ is defined under CERCLA
Section 101(14) to include approximately 714 toxic substances
listed under four other environmental statutes, Including RCRA.
80th the definition of hazardous substance and the definition
of “pollutant or contaminant’ under Section 104(a)(2) exclude
“petroleum, including crude oil or any fraction thereof’,
unless specifically listed under those statutes. 1/ Accordingly,
no petroleum substance, Including used oil, can be a ‘hazardous
substance’ except to the extent it Is listed as a hazardous waste
under RCRA or under one of the other statutes. Thus two critical
issues In assessing whether a substance is subject to CERCLA is
whether or not, and to what extent, a substance Is ‘petroleum.’
- This memorandum discusses the second type of petroleum exclusion
issue. The question, therefore, Is not whether used oil Is
‘petroleum’ an.d thus exempted from CERCLA jurisdiction, but-to
what extent substances found In used oil which are not found In.
crude oil or refined petroleum fractions are also ‘petroleum .
If such substances are not ‘petroleum’ then a release of used
oil containing such substances may trigger CERCLA response
actions, not to the release of used oil, but to the contaminants
present in the oil.
1/ The full texts of these provisions are as follows:
Section 101(14)
The term Chazardous substance] does not Include petroleum,
including crude oil or any fraction thereof which Is not other-
wise specifically listed or designated as a hazardous substance
under subparagraphs A) through (F) of this paragraph, and
the term does net include natural gas, natural gas liquids,
liquefied natural gas, or synthetic gas usable for fuel (or
mixtures of natural gas and such synthetic gas).
Section lO4ia)(2)
The ter; [ pollutant or contaminant] does not Include
petroleum, including crude oil and any fraction thereof which
is not otherwise specifically listed or designated as hazardous
substances under section 101(14)(A) through (F) of this title,
nor does It include natural gas, liquefied natural gas, or
synthetic gas of pipeline quality (or mixtures of natural gas
and such synthetic gas).
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-3-
Although the term “hazardous substance” is defined by statt
there Is no CERCLA definition of Npetroleumd and very little d1re ..c
legislative history explaining the purpose or Intended scope of
this exclusion. Mone of the four early Superfund bills originally
excluded responses to oil, although the apparent precursor to
Section 101(14), round in S. 1480, excluded “petroleum” without
explanation in all versions except that introduced. The legisla-
tive debates on the final compromise Indicate only that Congress
intended to enact later, separate superfund—type legislation to
cover “oil spills.” See generally 126 Cong. Rec. H11793—11802
(December 3, 1980).
Since the enactment of CERCLA, the Agency has provided some
interpretations of the nature and scope of the petroleum exclusion.
In providing guidance in 1981 on the notification required under
Section 103 for non—RCRA hazardous waste sites the Agency stated
that petroleum wastes, including waste oil, which are not sped-
fically listed under RCRA are excluded from the definition of
“hazardous substance” under 101(14). 46 Fed. Req . 22145
(April 15, 1981). 2/
In 1982 and In 1983, the General Counsel Issued two opinions
on the CERCLA petroleum exclusion. In the first opinion, the
General Counsel distinguished under the petroleum exclusion
between hazardous substances which are Inherent In petroleum,
such as benzene, and hazardous substances which are added to or
mixed with petroleum products. The General Counsel concluded
that the petroleum exclusion includes those hazardous substances
which are Inherent In petroleum but not those added to or mixed
with petroleum products. Thus, the exclusion of diesel oil as
“petroleum” includes its hazardous substance constituents, such
as benzene and toulene, but PCB’s mixed with oil would not be
excluded. Moreover, If the petroleum product and an added
hazardous substance are so commingled that, as a practical matter,
they cannot be separated, then the entire oil spill is subject to
CERCLA response authority.
In the second opinion, the General Counsel concluded that
the petroleum exclusion as applied to crude oil “fractions”
Includes b .aded gasoline as well as raw gasoline, even though
refined or-blended gasoline contains higher levels of hazardous
2/ In the notice the Agency used the term “waste oil”
— without stating whether It was Intended to Include all
waste oil or only unadulterated waste oil. The Agency has
subsequently Interpreted the reference to “waste oil” in this
notice to include only unadulterated waste oIl. 50 Fed. Reg .
13460 (April 4, 1985).
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-4
substances. The Increased level of hazardous substances results
from the blending of raw gasoline with other petroleum fractions
to increase Its octane levels. Because virtually all gasoline
which leaves the refinery Is blended gasoline, the petroleum
exclusion would Include virtually none of this fraction if the
increased concentration of hazardous substances due only to its
processing made it subject to CERCLA.
Finally, the Agency has interpreted the petroleum exclusion
in two recent Federal Register notices. In the April 4, 1985
final rule adjusting reportable quantities under Section 102,
the Agency provided its general interpretation of the exclusion:
EPA Interprets the petroleum exclusion to
apply to materials such as crude oil, petro-
leum feedstocks. and refined petroleum
products, even if a specifically listed or
designated hazardous substance is presen.t
in such products. However, EPA does not
consider materials such as waste oil to which
listed CERCLA substances have been added to
be within the petroleum exclusion. Similarly,
pesticides are not within the petroleum
exclusion, even though the active ingredient
of the pesticide may be contained In a petro-
leum distillate: when an RQ of a listed
pesticide Is released, the release must be
reported.
50 Fed. Re . 13460 (April 4, 1985).
In March 10, 1986, the Agency published a notice of data
availability and request for comments on the proposed used oil
listing under RCRA. 51 Fed. Req . 8206. In that notice, the
Agency responded to commenterS who had argued that the RCRA
listing would discourage used oil recycling because it would
subject generators, transporters, processors, and users to
Superfund liability. The Agency stated that used oil which
contains hazardous substances at levels which exceed those
normally foi d In petroleum are currently subject to CERCLA.
51 Fed . j. 8206 (March 10, 1986). Although the fact that
the used oti Is contaminated does not remove it from the pro-
tection of the petroleum exclusion, the contaminants In the
used oil are subject to CERCLA response authority if they are
hazardous substances. Accordingly, most used oil., even without
a specific listing, would not be fully within the petroleum
excluston, irrespective of the listing.
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-5-
Di scussl on
Because there is no definition of hpetroleumu in CERCLA
or any legislative history which clearly expresses the Intended
scope of this exclusion, there are several possible interpre-
tations which could be given to this provision. However, we
believe that our current interpretation, under which TM petroleum M
includes hazardous substances normally found in refined petroleum
fractions but does not Include either hazardous substances found
at levels which exceed those normally found in such fractions
or substances not normally found in such fractions, is most
consistent with the statute and the relevant legislative history.
Under this interpretation, the source of the contamination,
whether Intentional addition of hazardous substances to the
petroleum or addition of hazardous substances by use of the
petroleum, Is not relevant to the applicability of the petroleum
exclusion. The remainder of this memorandum explains in greater
detail this interpretation and Its legal basis, and responds to
arguments raised In opposition to this Interpretation. -
The following is our interpretation of Npetroleum under
CERCLA 101(14) and 104(a)(2), which we believe to be consistent
with Congressional Intent and the position which the Agency has
taken on the scope of the petroleum exclusion thus far. First,
we interpret this provision to exclude from CERCLA response and
liability crude oil and fractions of crude oil, Including the
hazardous substances, such as benzene, which are Indigenous in
those petroleum substances. Because these hazardous substances
are found naturally in all crude oil and Its fractions, they must
be included in the term petroleum, for that provision to have
any meaning.
Secondly, petroleum under CERCLA also includes hazardous
substances which are normally mixed with or added to crude oil
or crude oil fractions during the refining process. This includes
hazardous substances the levels of which are Increased during
refining. These substances are also part of ‘petroleum TM since
their adt%tion Is part of the normal oil separation and processing
operati . at a refinery In order to produce the product commonly
underst ti be ‘petroleum.’
Ft JTy, hazardous substances which are added to petroleum
or which Increase In concentration solely as a result of con-
tamination of the petroleum during use are not part of the
‘petroleum’ and thus are not excluded from CERCLA under the
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-6-
exclusion. 3/ In such cases, EPA may respond to releases of the
added hazardous substance, but not the oil itself.
We believe that an Interpretation of “petroleum” to include
only indigenous, refinery—added hazardous substances Is the
interpretation of this provision which Is most consistent with
Congressional Intent. The language of the provision, its
explanation in the legislative history, and the Congressional
debates on the final Superfund bill clearly indicate that Congress
had no intention of shielding from Superfund response and liability
hazardous substances merely because they are added, Intentionally
or by use, to petroleum products.
The language of the petroleum exclusion describes “petroleum”
principally in terms of crude oil and crude oil fractions. This
language is virtually identical to the language used in an earlier
Superfund bill to define “oil.” 4/ There Is no Indication In the
statute or legislative history that the term “petroleum was to
be given any meaning other than its ordinary, everyday meaning.
See Malat v. RIddell , 383 U.S. 569, 571 (1966) (words of a statute
should be interpreted where possible In their ordinary, everyday
sense). Petroleum is defined tn a standard dictionary as
3/ The mixing of two or more excluded petroleum substances,
— such as blending of fuels, would not be considered con-
tamination by use, and the mixturewould thus also be an
excluded substance.
4/ See H.R. 85, 96th Cong., 2d Sess. §101(s) (as passsed by
— the House, September 1980) (“ “011 ” means petroleum,
including crude oil or any fraction or residue therefrom”).
H.R. 85 was designed principally to provide compensation and
assess liability for oil tanker spills In navigable waters.
As discussed below, the omission of this “oil spill” coverage
under the petroleum exclusion was believed to be the most
significant e.1ss1 W In terms of response to environmental
releases u!4.r the final Superfund bill.
A1th.s h the bill containing the precursor to Section
101(14), 3.1480, does not have a definition of “petroleum,
its accompanying report did explain the term “petroleum oil”
in the context of the taxing provisions:
The term “petroleum oil” as used In subsection 5 means
petroleum, Including crude petroleum and any of Its
fractions or residues other than carbon black.
S. Rep. No. 96-848, 96th Cong., 2d Sess. 70 (1980).
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—7-
an oily flammable bituminous liquid that
may vary from almost colorless to black,
occurs In many places. in the upper strata
of the earth, is a complex mixture of
hydrocarbons with small amounts of other
substances, and Is prepared for use as
gasoline, naphtha, or other products by
various refining processes.
Webster’s Ninth New Collegiate Dictionary 880 (1985). Thus, an
interpretation of the phrase ‘petroleum, Including crude oil or
any fraction thereof’ to Include only crude oil, crude oil
fractions, and refined petroleum fractions is consistent with
the plain language of the- statute. 5/
The only legislative history which specifically discusses
this provision states that
petroleum, including crude oil and Including
fractions of crude oil which are not otherwise
specifically listed or designated as hazardous
substances under subparagraphs (A) through (F)
of the definition, is excluded from the defini-
tion of a hazardous substance. The reported
bill does not cover spills or other releases
strictly of oil .
S. Rep. No. 96—848, 96th Cong., 2d Sess. 29-30 (1980) (emphasIs
added). Thus, the petroleum exclusion is explained as an
exclusion from CERCLA for spills or releases only of oil.
The legislative history clearly contemplates that the petroleum
5/ This distinction under the exclusion in Title I of
CERCLA between petroleum as the substance that leaves
the refinery and the hazardous substances which are added to
it prior to, durln or after use was also made by Congress In
Title II, the revenue provisions or CERCLA. In Title II,
Congress mide a distinction between ‘chemicals’, petrochemical
feedstocks a d Inorganic substances, taxed In Subchapter B of
Chapter 38 of Internal Revenue Code, and ‘petroleum’, crude
oil and petroleum products, taxed in Subchapter A. Section
211 of CERCLA. The list of taxed chemicals Includes many of
the contaminant hazardous substances typically found in used
oil: arsenic, cadmium, chromium, lead oxide, and mercury.
The term ‘petroleum products’ was explained in the legislative
history as Including essentially crude oil and Its refined
fractions. H. Rep. No. 96-172, Part III, 96th Cong., 2d
Sess. 5 (1980) (to accompany H.R. 85).
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-8-
exclusion will not apply to mixtures of petroleum and other
toxic materials since these would not be re1eases “strictly
of oil .
The Congression4l debates on the final compromise Superfund
legislation provides further clarification of Congressional
intent concerning the scope of the petroleum exclusion, both In
terms of what this provision deleted from the bill and what it
did not. First, the major concern expressed with respect to the
final compromise bill was the omission of its oil spill juris-
diction due to the petroleum exclusion. See e.g . 126 Cong. Rec.
H11787 (Rep. Florio) (daily ed. December 3, 1980); Id. at H11790
(Rep. Broyhill); Id. at H11192 (Rep. Madigan); Id. at H11793
(Rep. Studds); Id. at 1111795 (Rep. Biaggi); Id. at H11796 (Rep.
Snyder). This omission was of concern because it was believed
to leave coastal areas and fisheries vunerable to tanker spills
of crude and refined oil, such as the wreck of the Argo Merchant ,
and offshore oil well accidents. 126 Cong. Rec. H11793 (Rep.
Studds) (daily ed. December 3, 1980). See also 126 Cong. Rec.
310578 (proposed amendment to S1480 by Sen. Magnuson) (daily ed.
August 1, 1980); Id. at S10845 (proposed amendment to 51480 by
Sen. Gravel) (daily ed. August 5, 1980). The omitted coverage
of oil spills was believed to include approximately 500 spills
per year, 126 Cong. Rec. H11796 (Rep. Snyder) (daily ed.
December 3, 1980), far less than the number of contaminated oil
releases each year.
However, it was clear that the omission of oil coverage was
intended to Include spills of oil only, and there was no Intent
to exclude from the bill mixtures of oil and hazardous substances.
The remarks of Rep. Mikuiski are typical of the general under-
standing of the effect of the petroleum exclusion In the final
bill:
The Senate bill is substantially similar to the House
measure, with the exception that there is no oil title.
Irealize that it Is disappointing to see no oil—
related provision In the bill, but we must also realize
that this is our only chance to get hazardous waste dump
site cleanup legislation enacted. .
Moreover, there is already a mechanism in place that
is designed to deal with spills In navigable waterways.
There Is not, however, any provision currently In our law
that addresses the potentially ruinous situation of
abandoned toxic dump sites.
I, therefore, believe that it is Imperative that we
pass the Senate bill as a very important beginning in our
attempt to defuse the ticking environmental time bomb of
abandoned toxic waste sites.
Id. at 1111796.
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-9—
In addition, several speakers specifically Identified sut.
mixtures as releases not only covered by the legislation but
releases to which the bill was addressed.
Mr. Edgar
In my State, hazardous substances problems have been
discovered at an alarming rate in recent years. In the
summer of 1979, an oil slick appeared on the Susquehanna
River near Pittston, Pa. When EPA officials responded
under section 311 of the Clean Water Act, they learned
that the slick contained a variety of highly poisonous
chemicals In addition to the oil.
Officials estimate that more than 300,000 gallons
of acids, cyanide compounds, industrial solvents, waste
oil and other chemicals remain at this site where they
could be washed to the surface anywhere in a 10-square -
mile surface.
Id. at H11798. See also 126 Cong. Rec. 514963 (daily ed.
November 24, 1980T (Sen. Randolph) (contaminated oil slick)..
Other petroleum products containing hazardous substance
additives intended to be addressed by the legislation Include
PCB’s in transformer fluid, Id. at 514963 (Sen. Randolph) and
S14967 (Sen. Stafford), dioxTh in motor fuel used as a dust
suppressant, Id. at 514974 (Sen. Mitchell), PCB’s In waste
oil, Id. (Sen. Mitchell) 6/ and contaminated waste oil, Id.
at S14980 (Sen. Cohen). Accordingly, Congress understood
the petroleum exclusion to remove from CERCLA jurisdiction
spills only of oil, not releases of hazardous substances
mixed with the oil.
There are two principal arguments which have been raised
in opposition to this Interpretation. First, the argument
has been made that this Interpretation narrows the petroleum
exclusion to the extent that It has became virtually meaning-
less. As we have noted In previous opinions on this Issue,
an Interpretation which emasculates a provision of a statute
Is strongly disfavored. Narsano v. Laird , 412 F.2d 65, 70
(2d CIr. 1969). Hewever, this interpretation leaves a
signlfic&*t number of petroleum spills outside the reach of
CERCLA. Spills or releases of gasoline remain excluded from
CERCLA under the petroleum exclusion. As indicated by the
legislative history for the 1984 underground storage tank
6/ The illegal disposal of PCB’s in North Carolina described
— by Senator Mitchell was a result of the spraying of 131,000
gallons of PCB—contaminated waste oil along a roadway. See
126 Cong. Rec. H9448 (daily ed. September 23, 1980).
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- 10 -
legislation, leakage of gasoline from underground tanks
appears to be the greatest source of groundwater contamination
In the United States. 130 Cong. Rec. 52027, 2028 (daily ed.
February 29, 1984) (Sen. Ourenberger). In addition, spills
of crude or refined petroleum are not subject to Superfund,
as was frequently noted prior to its passage. See enerally
126 Cong. Rec. H11786-H11802 (daily ed. DecembeT , 1980).
Moreover, under this interpretation not all releases of used
oil will be subject to CERCLA since used oil does not neces-
sarily contain non—indigenous hazardous substances or hazardous
substances In elevated levels. 7/ Although used oil Is
generally contaminated ’ by definition, see e.g. , RCRA Section
1005 (36), the impurities added by use may not be CERCIA
hazardous substances.
A second argument which has been made opposing this
interpretation Is that Congress intended to include in the
term ‘petroleum’ all hazardous substances added through
normal use of the petroleum substance. However, even If It
were possible to determine In a response situation whether a -
hazardous substance was added Intentionally or only through
normal use or to determine what additions are Nintentlonalu,
the legislative history Is contrary to such a distinction.
As noted above, the Senate Report explaining this provision
states that it excludes releases or spills strictly of oil.
This explanation expresses Congressional Intent that releases
of mixtures of oil and toxic chemicals, i.e . releases which
are not strictly of oil, would be subject to CERCLA response
authority. Releases of contaminated oil even if contaminated
due to normal use are not releases strictly of oil.
Furthermore, the Congressional debates prior to passage
clearly indicate an Intent that contaminated oil would be
subject to Superfund as several such releases were discussed
as the focus of the legIslation. Congress was concerned
with the envlron.ental and health effect of abandoned toxic
waste sites, not whether the presence of such hazards was
intentleaa.1 or die to normal practices. In fact, one of the
petrole *.ktzardous substance mixtures most often mentioned
during tb. debates was that of PCB contaminated oil, which
is a ty of contamination arguably resulting from the ‘normal
use of the oil In transformers. Accordingly, an Interpretation
of the petroleum exclusion which Includes as ‘petroleum’
hazardous substances added during use of the petroleum would
not be consistent with Congressional Intent.
7/ Data submitted to EPA by the Utility Solid Waste
Activities Group et al. in Appendix C of their comments
on the RCRA Used Oil listing, February 11, 1986.
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— 11 —
Finally, although the Superfund Amendments and Reauthorjza
Act of 1986 (SARA) Contains several provisions related to oil
and oil releases, it did not amend the petroleum exclusion under
CERCLA. Moreover, the new provisions Concerning oil and oil
releases and their legislative history do not Indicate a
Congressional intent inconsistent with this opinion.
The only discussion of ‘petroleum’ in the Conference
Report for SARA is in the context of defining the scope of the
new petroleum response fund for leaking underground storage
tanks under Subtitle I of the Resource Conseryation and Recovery
Act (RCRA). Subtitle I defines ‘petroleum’ in a manner nearly
identical to CERCLA. The Conference Report specifies that
used oil would be subject to the response fund notwithstanding
its contamination with hazardous substances. H. Rep. Mo. 99—962,
99th Cong., 2d Sess. 228 (1986). The Conference Report Is
not inconsistent with the Agency’s position on ‘petroleum’
under CERCLA since it merely specifies that the leaking under-
ground storage tank (UST) response fund is applicable to tanks
containing certain mixtures of oil and hazardous substances,
as well as to tanks containing uncontaminated petroleum. in
fact, the Report further states that the UST response fund
must cover releases of used oil from tanks since ‘releases
from tanks containing used oil would not rise to the priority
necessary...for CERCLA response, Id. (emphasis added), not
because such releases would be entirely excluded from CERCLA
jurisdiction. See also 132 Cong. Rec. S14928 (daily ed. October
3, 1986) (Senator Chaffee) (Nothing In Section 114, pertaIning
to liability for releases of recycled oil, ‘shall affect or
impair the authority of the President to take a response action
pursuant to Section 104 or 106 of CERCIA with respect to any
release ...of used oil or recycled oIl’); 132 Cong. Rec. H9611
(daily ed. October 8, 1986) (Rep. Schneider) (...the oil
companies are rightfully assessed a significant share of the
Superfund tax...Waste oils laced with contaminants have been
Identified at at least 153 Superfund sites in 32 States.),
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Guidance on Non-NPL Removal Actions
Involving Nationally Significant
or Precedent-Setting Issues
-------
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
______ WASHINGTON, D.C. 20460
4t PRO1 ’
MAR -3 1989
OFFICE OF
MEMORANDUM SOLID WASTE AND EMERGENCY RESPONSE
SUBJECT: Guidance on Non—NPL Removal Actions Involving Nationally Significant
or Precedent-Setting Issues (OSWER D re ive 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
Regions III, VI
Director, Emergency and Remedial Response Division
Region II
Director, Toxics and W ste Management Division
Region IX \
Director, Hazardous Wast e 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 Headquarters (HQ) concurrence. The guidance also
outlines procedural requirements for five categories of removals which are of
special interest from a national perspective, but which 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 HQ concurrence. Assessment of the potential long-term
implications of initiating certain removal actions is largely interpretive,
however, and Regional personnel should consult this guidance whenever
considering a removal action at a non-NPL site.
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OSWER Directive 9360.0-19
-2—
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 subject 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 shoul& involve consultation with
Emergency Response Division (ERD) Regional Coordinators.
This interim final guidance is effective ininediately. 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-SEllING CATEGORIES
Six categories of removals have been designated as nationally significant
or precedent-setting. The list is not exhaustive and early consultation with
the Emergency Response Division (ERD) is reconinended 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) whether a response will coimilt EPA to a course of action that could
have a significant Impact on future resources, due to the widespread
occurrence of 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:
— iu roper storage of pesticide products awaiting Indemnification
— lawful application of pesticides, including special local use
pesticides
— grain fumiigation operations.
Rationale : HQ concurrence will ensure that the Agency avoids comitment
to cleanup of widespread contamination beyond the intended scope of
CERCLA.
3. Removal actions at sites involving any form of dioxin when it is one of
the principal contaminants of concern.
Rationale : HQ concurrence will ensure national consistency in dioxin
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 conswiier products in
consier use (e.g., lead—contaminated soil resulting from peeling lead-
based paint on houses).
Rationale : HQ concurrence will ensure that the Agency avoids a coninitment
to the cleanup 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 CERCIA. These include:
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OSWER Directive 9360.0-19
-4-
- substances excluded from Fund-financed response under the SARA
section 101(14) definition of •hazardous substance (e.g.,
petroleum 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., omissions 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 syste. 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 CERCIA 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 or precedent—
setting nature is essential to ensure timely HQ concurrence when necessary.
OSCs should contact the appropriate ERD Regional Coordinator when a possible
nationally significant or precedent-setting removal action is first identified,
to alert the Regional Coordinator that a request for HQ concurrence will be
forthcoming. OSC5 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 Coordination Team (NICT). These types of removal actions are
discussed in a November 10, 1986, memorandum from the AA, OSWER entitled
“Relationship between Preparedness Staff and Office of Emergency and Remedial
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OSWER Directive 9360.0-19
-5-
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 form attached. The Action Memorandum
should be in final draft form, except that it should not be signed by the RA.
The request form must be addressed from the RA to the ff, 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, HO
concurrence on the amended Action Memorandum is required, as discussed above,
prior to any additional actions at the site. HQ concurrence is not required
on requests for ceiling 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 HO 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
-6-
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, HO 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, and 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 are discovered after receipt of the original HQ concurrence, the
Regions are required to inform the appropriate ERD Regional Coordinator of 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 REQUIREIENTS
The requirements established below apply to five removal categories that
do not present nationally significant or precedent-setting issues requiring HQ
concurrence, but instead involve issues that require special Regional
procedures.
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OSWER Directive 9360.0-19
-7-
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 HQ 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
-8-
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 I-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- 14-1-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 concurrence.
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 for Solid Waste
and Emergency Response
Date
Date
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Final Guidance on Implementation of the
“ConsiStency” Exemption to the Statutory
Limits on Removal Actions
-------
iIO S77 1
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
4 o ,rioitG
JUN I 2 989
DF •CE
SOL ,ASE A. iO £ME G 1 c.: -...
NDRANDL
SU&JECT: Final Guidance on Implementation of the ‘Consistency” Exemption
to the Statutory Limits on Removal Actions
(OSWER Directive 9360.O-12A
FRON: _Jonathan Z. Cannq ?d ” 7
cting Assistant Administrat
TO: Director, Waste Management Division
Regions I, IV, V. VII, Vii i
Director, Hazardous Waste Management Division
Regions III, VI
Director, Emergency and Remedial Response Division
Region II
Director, Toxic and Waste Management Division
Region IX
Director, Hazardous Waste Division, Region X
Superfund Branch Chiefs, Regions I-X
Oil and Hazardous Materials Coordinators, Regions I—X
Purpose :
The purpose of this memorandum is to transmit final guidance on use of
the exemption from the statutory limits on removals for actions that are
otherwise appropriate and consistent with the remedial action to be taken.
Background :
On April 6, 1987, interim final guidance was issued on implementation of
the revised statutory limits on removal actions which discussed procedures for
using the new exemption contained In the Superfund Amendments and Reauthoriza-
tion Act of 1986 (SARA). This exemption allows removals to exceed the
statutory time and money limits of one year and $2 million where necessary to
achieve consistency with the remedial action to be taken. This guidance is
final and supersedes the interim final version of April 1987.
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OSWER Directive 9360.O-12A
-2-
Objective :
The final guidance elaborates on the approach adopted in the proposed
National Contingency Plan. Except in limited circumstances, use of the
exemption from the statutory limits will be restricted to sites on the
National Priorities List. Justification for use of the exemption will require
that the removal action be uconsistent with the remedial action as defined in
the guidance, and fall into at least one of thefour categories of activities
that are listed as “appropriate.” Included with the guidance is a sample
action memorandum demonstrating proper documentation of the justification.
Implementation :
1.0 Introduction
Section 104(e) of the Superfund Amenónents and Reauthorization Act of 1986
(SARA) amends section 104(c) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA) to raise the statutory limits
on removal actions and establish a new exemption from those limits. Under
SARA, the limits on removals increase from $1 million and six months to $2
million and 12 months.
The new exemption may be used if “continued response action is otherwise
appropriate and consistent with the remedial action to be taken.” It applies
to any Fund-financed removal and thus encompasses State-lead as well as EPA-
lead responses. Actions where the Agency has the lead, but is to be reimbursed
by private parties or other Federal agencies, are still subject to the
statutory limits and provisions for exemption.
Regional Administrators (RA5) are authorized to approve requests for
exemption from the 12inonth limit. The Assistant Administrator (AA), Office of
Solid Waste and Emergency Response (OSWER) retains authority to approve
requests for exemption from the $2 million limit, but may delegate that
authority to RAs on a case-by-case basis.
2.0 Purpose of the Exe t1on
The “consistency” exemption in CERCLA 104(c) supports the new provision in
CERCLA 104(a)(2) requiring removal actions to “contribute to the efficient
performance of any long-term remedial action” (see OSWER Directive 9360.0-
13). Together, the new CERCLA 104(a) provision and the “consistency” exemption
In 104(c) are Intended to promote and enhance efficiency and continuity in the
Superfund program as a whole.
The 104(a) provision does this by ensuring that the removal program
attempts to anticipate remedial action that will be needed and avoids taking
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OSWER Directive 9360.O-12A
-3-
response actions that will impede the remedial action or result in wasteful
restarts. The uconsistencysa exemption promotes efficiency by allowing removals
to exceed the statutory limits for time and cost when to do so will result in
lower overall cleanup cost as well as enhanced protection of public health and
the environment.
3.0 ApplIcation of the “Consistency” Ex t1on
3.1 CrIteria for Eligible Activities
As stated above, removal actions should take into account efficiency of
the Superfund progr n as a whole. If there is no efficiency to be gained from
continuing a removal action beyond the statutory limits, then the uconsistencysu
exemption should not be used. In addition, in. order to show that a proposed
removal is “appropriate and consistent with the remedial action to be taken” it
must be shown to meet the criteria for consistency in (a) and for appropriate-
ness In (b) below:
(a) Consistency : At a minimum, the removal does not foreclose the remedial
action.
This criterion Is necessary to ensure that planned or expected remedies
are not precluded by the removal. The ure.. Øia1 action to be taken” is the
remedial action that, prior to the start of the removal action, was planned or
could reasonably have been expected to be taken. Certainly, the actual
performance of the activities that are part of a planned or expected remedial
action are consistent with that action. It may turn out that after a removal
done under a “consistency” exemption, the Agency will decide not to take any
further response action.
(b) Appropriateness : The activity is necessary for any one of the four
following reasons:
1. To avoid a foreseeable threat.
This is an action that permanently abates a threat, as opposed to a
temporary measure that, of necessity, will have to be repeated periodically,
until the permanent retiedy is performed.
2. To prevent further migration of contaminants.
This is an action taken to minimize the scope of the cleanup and the
potential for harm to human health and the environment.
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OSWER Directive 9360.O-12A
-4-
3. To use an alternative to land disposal.’
This criterion recognizes that procurement of alternative technology is
more time—consuming and expensive than that of land disposal. CERCLA expresses
preference for alternative technologies over land disposal.
4. To c ly with the Off-site Policy.
This criterion recognizes that the standards required of facilities at
which Superfund wastes may be disposed of may limit the number of available
facilities. This in turn may cause delay in, or increase the cost of,
disposing of site wastes.
3.2 Extension of Statutory Limits
For eligible activities, use of the conslstency exemption to exceed the
statutory limits of $2 million and 12 months will be considered In the
following manner:
(a) Cost : Only reasonable increases will be granted. Generally, this
means not more than $1 to $2 million above the statutory limits.
(b) Time : Limits on duration will be decided, based on the particular
circumstances at the site.
3.3 Sites at Which Use of the Exemption Is Appropriate
This exemption will be used primarily at sites listed on the National
Priorities List (NPL). However, there may be limited circumstances when use
of this exemption will be appropriate for non-NPL sites. Those instances are
expected to occur only rarely, and will be determined by the AA, OSWER, on a
case—by—case basis. In addition to the above criteria, the AA will generally
consider the following factors when making that determination:
(a) the magnitude of the contamination and the threat to human health and
the environment;
(b) the status of negotiations with potentially responsible parties;
1 Procedures for analysis, justification, and documentation for
emergency and time-critical actions can be found In the NAdminis_
trative Guidance for Removal Program Use of Alternatives to Land
Disposal,N August 1988, OSWER Directive 9380.2-1; for non—time-
critical actions use the EE/CA Guidance memo from Tim Fields, March
30, 1988.
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OSWER Directive 9360.O-12A
—5—
(C) the opportunity for widespread technology transfer; and
(d) whether the site is likely to be proposed for the NPL.
4.0 Approval Procedures
4.1 Documentation
The action memo requesting approval of the Nconsistencyu exemption should
document that the proposed activities meet the requirements under section 3.0,
above.
4.2 Concurrences
In addition to any concurrences ordinarily obtained, where the site in
question is proposed for or listed on the NPL, the appropriate official in the
Region’s remedial program must concur.
4.3 Approval
Regional Administrators (RAs) are authorized to approve requests for
exemption from the 12-month limit for both NPL and non-NPL sites. The
Assistant Administrator (AA), Office of Solid Waste and Emergency Response
(OSWER) retains authority to approve all requests for exemption from the $2
million limit, but may delegate that authority to Ms on a case-by-case basis.
cc: Henry Longest
Bruce Diamond
Tim Fields
Russ Wyer
Lloyd Guerci
-------
Clarification of Eligibility and Approval for
Hazardous Duty Pay (Office of the
Comptroller Transmittal No. 85-05)
-------
ME 1ORANDUM
SUBJECT:
FRO i:
TO:
UNITED STATES E 1VIRONMENT L PROTECTION AGENCY
WASHINGTON. D.C. 20460 LI
c 1 V ’
I 11
-‘j - & -’
FFICL
0 LI
ifazardous Dut:: Pay
Thad Juszczak
OSWER Office Di
The attached Office cf cr.e Co p:roL .er Transmi.r:al Number 85—5
provides procedures for authori:ing h.izardous duty pay a zd recording
hazardous duty hours. Please ensure that the appropriate personnel are
rnade aware of these policies and procedures. If you have any questions.
p!ease see me. Thank you.
Attachment
cc: Jack ! tcGrav
Bruce Engelbert
Tina Par r.er
Dave Chamberlin
Rachel Hughes
.tS
;fg1 11
i 1
‘ 1
-------
itO
___ UNITED STATES ENVIRONMENTAL PROTECTION AGEr’CY
WASHINGTON. 0 C. 20460
SE? 16 1985
OFFICE Or
AOMINISTRATTON
.NO RESOURCES
MANAGEMENT
OFFICE CF TEE COMPTRCLLER
TRANSMITTAL NUMBER 85—5
SUBJECT: Clarification of Eligibility and Approval, for
Hazardo a Cu y Pay
FROM: Director
Financial Management Division
TO: Financial Management Officers
Recently, a number of questions have been received
concerning the hazardous duty pay differential. TMs
Transr ittal clarifies: 1) procethires for authorizing hazardous
cuty pay and 2) recording of hazardous duty pay on the Time
and Attendance Report.
PROCEDURES 7CR AUTHORIZING HAZARDOUS DUTY PAY
The following procedures guide the authorization of
hazardous du:y pay:
• Supervisors ho believe that an employee has performed or
will, perform hazardous duty (as defined in the EPA Pay
Administration Manual) are required to submit a written
recoTmnendation for hazardous duty pay to the operating
personnel ficer.
• Sutervisors must ensure that work for which a hazardous
duty oremium is requested falls strictly w .thin the criteria
of the EPA Pay AdministratiOn Manual before recc ending
aooroval .
• The personnel officer will coordinate the recommendation
with the local safety officer and the Director, Personnel
Management Division, where necessary.
‘ :f the hazardous duty pay differential is determined to be
apprOpriate, the personnel officer will indicate approval
by signing the recommendation and returning it to the
super’; isor.
-------
—
A hazardous duty oremiun may not be Daid until an aa roved
recommenaatir,n is recetved from the ersonne . off:cer .
Detaiied procedures for the authorization cf hazardous
duty payments are contained in C ’apter 9, Section 5 of the
EPA Pay Mministration Manual.
RECORDING HAZARDOUS DUTY HOURS
The following procedures apply to the recording of
hazardous duty hours;
° Only ec ployees for which a hazardous duty pay differential
has been authorized are eligible for hazardous duty pay.
o The Time and Attendance Reoort must reflect total hours
for wn rth the hazardous pay differential is authorized .
The differential is payable for the total hours during
which the emp.cvee is in pay status on a calendar day,
including overtime hours. When the tour of duty extends
into another calendar day, the hazardous duty pay is
charged to the day work began.
o 9a ardous duty pay should be listed on the Thre and
Attendance Report as °Hours in Pay Stati s° under the
headin “HAZ°.
Chapters 3 and 4 of the EPA Timekeeping Manual provide
additional information on the recording of hazardous duty
hours.
INQUIRIES
If you have any questions please contact Joe Nemargut of
the Fiscal Policies and Procedures Branch or. FTS 382—5113.
cc: Kyrn Davis (PM 212)
Management Division Directors
Senior Sudget Officers
-------
Addressees:
Chris O’ConnOr, Firt. ncial Management Officer, Region I
Ron Ghe;ardi. Financial Management Officer, Region tI
Bill Hoffnan, Financial Management Officer, Region III
Conny Chandler, Financial Management Officer, Regi n IV
Richard Walker, Financial Management Officer. Region V
Richard Kenyon, Financial Management Officer, Region VI
Mary Jo Wa].lerstedt, Acting Financial Management Officer,
Region VII
Alfred Vigil, Financial Management Officer, Region VIII
William Annifl , Financial .Managemeflt Officer, Region IX
Mildred Martin, Financial Management Officer, Region X
Alan Lewis, Financial Management Officer, Las Vegas
Rich Ruhe, Financial Management Officer, Cincinnati
Bill Laxton, Financial Management Officer. RTP—Durham
Vi?lcette I.. Goerl, HO Accounting Operations Branch
-------
Sup,ertundlndirect Cost Manual for Cost
Recovery Purposes (FY 1983 - FY 1986)
-------
v:’O :e1!’4TAL PRCTEC’TION AC- 1C’
5UP!RFU TD INnIRSCT COST tANtTA.
E’OR COST R C V R! P J .PCSES
!Y 19 3 through Y 2.926
OFFICE OF TE COMPTRCt.LER
OFFICE OF AD INSTRATI0 T A D P!S DURCZS MA AGCMEUT
March 1986
-------
Subject: Recovery of Superfurid Indirect Costs
Recovering the costs of Superfund site clean—up from parties
responsible for the contamination will be one of the major sources
of replenishment of the Razardous Substance Response Trust Fund
(the superfund) in the years ahead. In that regard. it is critical
that EPA seek to recover all costs associated with clean—up. These
costs should include all direct and indirect costs related to site
clean—up.
Indirect costs are the costs necessary to ooerate the program
but which cannot be attributed directly to soecific sites. Examples
include orocram inanacement, indirect salaries and frince benefits,
administrative support, rent, and utilities. EPA has developed
an indirect cost allocation system which allocates these indirect
personnel and program overhead costs down EPA’S er anizational
structure to Suoerf nd sites. eter ininc the appropriate charaes
for each site is the ultirnate objective for cost allocation.
While indirect costs are aerterally understood and acceoted
in the business comr unity, they are not nornally used in the
government environment. Accordingly, I have directed that this
manual be prepared to (1) provide an exolanation of what indirect
costs are and how EPA allocated them, and (2) to provide instructions
to regional financial management personnel for calculatina the amount
of indirect costs which should be claimed in cost recovery actions.
The guperfund Accounting Branch, Financial Manacement Division,
at EPA Headcuarters will calculate indirect cost rates for each
region for each fiscal year, begirtninc with fiscal year 1983. As
rates for succeeding years are calculated, the Financial Management
Division will, issue transmittals to keep this manual up to date.
This manual has been provided to regional Financial Management
Officers, Regional Counsels, Headauarters Legal Offices (OECM and
OGC) and all Headquarters and regional Superfund Program Division
Directors.
Suggestions for improvement or comments should be referred
to George Alaoas, Chief, Superfund Accountina Branch at FTS
382—2268. The address is:
EPA Headquarters
Superfund Accounting Branch, PM—226
401 M Street, S.W.
Was hi : g 60 horn
Comptroller, ?A
1
-------
Table of Contents
Pace
preface.... •
table Of Contents . . . . . . . . . . . . . . . . . • • • • _ • • ii
Introduction..... • . . . • . . . . . . . . . . . . . . . • . . . . . . . . . . • i i i
Allocation Methodology. • • ••• Il
What Are Indirect Cost s?.......— . ..•.• 1_i
What Is Cost Allocation’ 1—2
Why Did EPA DeueloO An Indirect Cost
Allocation Methodology For SuDerfund Sites?.. 1—2
How Was That MethodolOcy DeveloPe 1—2
What Costs Are llocated’ 1—4
What Is The Conceotual Form of EPA’s
Methodology? • . •....••• . . . . . . . . . 1—5
How Does EPA Aroly The flethodolocV To Deterltifle
Indirect Cost Rates For SuDerfurtd Sites?..... 1—6
What Does The Indirect Cost Rate Reoresent’ . 1—7
EPA Headauarters OrCanizatiort Chart............•• 1—8
EPA Recional Or;anizationChart.......... . .. 1—9
EPA Indirect Cost Rates And Ex lanatiOR Of Use........ tI—i
ForA olVinq The Pates... ...• •. ...... II—].
Indirect Costs And The Cost Doc nentatiOfl
11—2
The Indirect Cost Rate Reference Sheet And
Worksheet..... .. .. ...• .... .. .. .• .• •• •. •... •.. 11—3
ii .
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Introduction
The purpose of this nanual is t iofold:
(1) To provide an explanation of how EPA’S indirect cost
rates were develoned, and
(2) To explain how those rates should be used to calculate
indirect costs allocable to individual Su erfund sites.
The first section includes an explanation of what indirect
costs are, and why and how they are allocated so that an indirect
cost rate can be developed. The purpose of the section is to
provide an understanding of how this occurs so that Agency
representatives can become comfortable enough with the concePts
to defend them in ne’ otiations and/or litigation.
The second section ,rovides those rates that have been
calculated for each region and an ex lanatiori of how they should
be apolied to derive indirect costs allocable to a given site.
These costs should be oursued in cost recovery actions with the
same intensity as direct costs.
111
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Allocation Methodolocv
The purpose of this section is to present EPA’s methodology
for indirect cost allocation to Superfund sites in an understand-
able for iaC for non—accountantS. It is intended to assure the
reader that the indirect costs claimed in cost recovery actions
have been derived from the most accurate and defensible methodology
available using generally accepted accounting crincioles. As such
these indirect costs are valid and should be recognized as part of
the total recoverable costs incurred by the Government in clean—up
actions under the Comprehensive Environmental Response, Compensation,
and Liability Act (C!RCLA).
This section answers rel.evant cuestions about Superfund site
indirect costs. The soecific cuestions this section addresses
are as follows:
• What a e indirect costs?
• What is cost allocation?
• Zhy and how did EPA develop an indirect cost allocation
methodology for Superfund sites?
• What costs are allocated?
• What is the conceptual fo of EPA’s methodology?
• How does E?; aoply the methodology to deterrnine indirect
cost rates for Superfund sites?
• What does an indirect cost rate represent?
The answers to these uestioris should provide a sufficient under—
.standing of the indirect costs of a Superfund site that the reader
will accent their validity as recoverable costs.
What are indirect costs ?
Indirect costs are those costs which are necessary to the
operation of the program and support of site clean—up efforts, but
which cannot be directly identified to the efforts at any one site.
They range froM costs closely related to site work —— pay
earned bY on—scene—coordinators while in training or awaiting
the next clean—up a ssicnment —— to costs not so closely related
to site work —— a portion of the AdMinistrator’s tirTte. While
these costs are very different in their relationship to any
I—i
-------
particular site, both are necessary and are incurred in supPort
of the site clean—un program.
Other examples of indirect costs are:
— costs of site clean—un personnel while they are not cleaning
specific sites, e.g., training, vacation, sick and holiday pay.
— all costs of non—site personnel. e.g.. program managers; clerical
support; and personnel, finance, contracts and other administra-
tive support staff.
— office space costs such as rent and utilities for both site and
non—Site staff.
In summary, indirect costs are all costs attributable to the
Sucerfund program that cannot be directly jdeneified to a specific
site.
What is cOst allocation ?
Cos: allocation is the method by which indirect costs are
assigned to one or more cost objectives. A cost objective is any
activity for .ihich a separate measurement of costs is desired.
Examples include deoartments or services, such as the clean—un of
Superfund sites. Cost allocation is done to develop the full
cost of a cost objective including direct and indirect costs
for any number of reasons —— for EPA the reason is cost reimbursement.
Why did EPA develco an indirect cost allocation Tnethodoloav for
Suoer:und sites ?
It is universally acknowledged by the business world that
indirect costs are a real part of the total costs of any product
or service. In that context EPA is concerned with indirect costs
because they are a real part of the total cost of response at
hazardous waste sites. As such, it is EPA policy to seek recovery
of “all costs...incurred by the United States Government.” as
stated in Section 107 (a)(4)(A) of CERCLA.
Row was that methodolocy developed ?
To provide a sound and defensible basis for determining
indirect costs, EPA decided to develoo a formal indirect cost
allocation methodolocy. To ensure that the methodology would
be based on appropriate accounting principles, EPA contracted
with the international a :counting fi of Ernst and Whinney.
Ernst and Whinney was tasked with developing an indirect cost
allocation methodology which would most ac:uratelv reflect the
level of indireot suo ort provided to Superfund sites by EPA
1—2
-------
organizaticr%S. This section describes the deci5ion rnakinq process
!?A and ernst and hinney went throuah to deci.de upon the most
a prOf rLat9 methodology.
Development of a cost allocation methodology requires 1)
selecting a method, 2) selecting how to -accumulate costs, and 3)
selecting the allocation bases that link the cost objectives to
the costs themselves. An allocation base is that which defines
the various recipients of the suooert provided by an organization
as well as the prooortionate amount of that orcanization’S costs
hich should he allocated to each of those various recipients.
Selectinc the method
Selection of a particular method of allocation is dictated
by concer %S about accuracy and practicality. The various levels
of accuracy provided by each of the generally accepted alternative
methods is dictated by the degree to which each method recognizes
the concept of sun ort der,artment interdeoendency. The following
is an illustration of this concept.
!xa’,ole of 5 1 .poort Deoart ent Inter? e endenCy
AA FOR SOLID
WkSTE AND
EMERGENCY
RESPONSE
1&
• OFFICE OF
EMERGENCY AND
REMEDIAL
RESPONSE
1-3
-------
In this example, the Comptroller provides suooort to Data Processing,
but the support is mutual —— in reality each suooorts the other.
Both suppcrt departments, in turn, suooort the Assistant Adxnin—
istrator for OSW!R and OERR. separately.
only the cross allocation method adequately recognizes the
type of support department interdependency displayed in this example.
The cross allocation method is defined as explicitly recognizing
the mutual services rendered among all depart.nents. For this
reason, the cross allocation method is universally considered
the most accurate and defensible of all methods. EPA’s need for
just such a method led to the adootion of this method over less
accurate methods.
Selectinc how to accumulate costs
CP;’s Financial Management System (FMS) is desianed to
accumulate costs by allowance holder. Allowance holders (ARs)
are responsible for the day to day manaqe ent of EPA resources.
Allowance holders are generally identified with the Assistant
Administrator (AM or;anizational level. Resoonsibility for
control of resources is further delegated to and accounted for
by responsibility centers (RCs). Responsibility centers are
usually assigned to division level organizations. This AH/RC ‘
design allows identification of costs to organization units down
to division level. The ability to acc .unulate costs by division
enabled Ernst and Whinney and EPA to study EPA’s organizational
units at the division level for support relationships to other
organizational units: to the Superfund program; and to Superfund
sites, the final cost objectives.
Selecting the allocation bases
Cost accounting literature provides guidance and princioles
goverrtina the selection of bases used for distributing su Port
costs. The guidance and principles are cuite technical and are
not presented here. However, Ernst and Whinney adhered to those
principles in selectinc the allocation bases that best reflect
the support provided by each of those or;anizatiortS which are
allocable within the principles of cost allocation.
What costs are allocated ?
EPA’S funding generally falls into appropriations for
Salaries and Exoenses, Research and Develooment, Abatement and
Control, Construction Grants, Buildincs and Facilities, and
Superfund. Indirect costs that are allowable for allocation ——
i.e., costs that suooort Superfund —— are exoended from EPA’S
approPriatiOnS for Salaries and Exoenses and for sunerfund.
Therefore, only costs paid from those two approoriations were
reviewed for possible allocation.
1—4
-------
Within those appropriatiOnS, Costs soecLfLcall excluded
from allocation are 1) capital costs. which are considered
invest flent3 rather than ooeratirtg exOenses related to a given
fiscal year, and 2) costs charged directly to Superfund sites,
i.e., direct costs. Specifically, the indirect costs which are
allocated are as follows:
• salaries and fringe benefits
• EPA travel and ansportation
• rent, communications, and utilities
• printing and reproduction
• supr,lies and materials
• other contractual services.
What is the conceotual form of E? ’s methodology ?
EP’s cost allocation methodolocy is a three stace process
which allocates the indirect costs from higher level oraaniza—
tjons down ?A’s organizational structure throuch two inte ed—
jate levels to the final cost objectives —— Superfund sites.
.e firs: inter tediate level is the Assistant AdrniniStratOr
or;anizaiortai level, and the second internediate level is the
reciortal program division or anizatiOnal level —— that which
works most closely with the Superfund sites themselves.
Stace 1 .
The first staae’s basic function is to allocate ReadcuarterS
support costs to the Acency’s major uAssistant Ad tiniStrator (AA)
organizational level, i.e. eadauarter’S Program AA5 —— pesticides
and Toxic SubstanCeS: Air, Noise and Radiation; Water; Research and
Development and. Solid Waste and Emeroency Resoonse (OSWER) —— and
Regional Adninistrators (RAS). An organization chart for EPA
Meadcuarters is presented at the end of this section (page I—a)
to aid this discussion. Temporary cost pools are created to
receive the allocation to the AA” level. Dollars allocated to
the cost pools for the HeadcuarterS procrax” AAs for pesticides
and Toxics; Air, Noise and Radiation; Water; and Research and
DevelOpment are not broucht forward to Stace 2 for allocation to
lower organizational levels because they are non—allocable.
They are considered non—allocable to Suoerfund because with
the exception of Research and Development, they do not support
suoerfund. While Research and Development does support guperfund,
the beneficial relationship to actual site work is often tenuous.
ccOrdiflgl7, we did not allocate it. The cost pools formed in
stage 1 to accwnulate costs that are allocated to the AA for
OSWER and the Recional Adp inist:atOrS are broucht forward to
S:aqe 2 for further allocation because OSWER supr orts uerfund
and the Regional Administrators suooort their regions.
1—5
-------
Stace 2
The second stage’s basic functions are (1) to allocate the
allocable c st pools formed in Stage 1 (OSWER and the Regional.
Administrators) to lower orcanizational levels (division level)
within OSWER and the RegionS, (2) to allocate OSWER administrative
support organizations to lower level OSWER organizations and (3)
to allocate Regional administrative office costs (the Regional
Administrator, Regional Counsel, Policy and Management, etc.)
support costs to regional program divisions (Air Management,
Waste Management, Water Management, and Environmental Services).
The authorized regional organization chart is presented at the
end of this section (page 1—9) to provide a visual. representation
of regional organizations.
tace 3
The third stace’s basic functions are 1) to allocate lower
level OSWER organizations to three final cost pools —— Superfund
sites, Suoerfund in general, and non—Superfund: and 2) to allocate
regional program division costs to those same three final cost
pools. Regional indirect cost rates can be calculated after
costs have been allocated in the third and final stage of the
allocation.
Autometinc the allocation of costs
EPA chose to automate the allocation because the cross—
allocation methodology adopted by EPA involves many repetitive
calculations. E? chose to use Ernst and Whinney’s cross—allo-
cation software (GOVCOST). This software is also used by several.
State and local qoverrm’eritS to perform their indirect cost allo-
cations. In that context, the GOVCflST software has been approved
by several Federal. government agencies for use by State and local
governments in determining indirect costs that are allocable to
Federal. programs and allowable for reimbursement.
Mow does EPA aoolv the methodolocV to determine indirect cost rates
for Suoerfurtd sites ?
The basis on which costs are allocated from regional program
divisions to Superfund sites, Superfund in general, and non—
Superfund cost pools is according to the proportion of regional
program division employee hours charged to each of those categories.
This allocation basis is used because Ernst and Whjnney and EPA
studied regional program divisions and determined that where the
employees of those divisions charced their time was the best
measure of support provided to each of those categories by those
divisions. Once cOsts have been allocated to the final three
cost pools mentioned above, EPA calculates an indirect cost rate
for each region. Using their individually derived rate, each
1—6
-------
region can appi’, indirect costs to each o its inriLvidual Super—
fund sites.
The rate for any region is calculated by dividing the costs
allocated tO that region’s Suoerfund site cost pool by the number
of regional program division hours charged to sites. For example,
if the total cost allocated down EPA’S organizational structure
to a region’s Superfund site cost pool is $1,500,000. and the
total regional prcqra” division hours charged to that region’s
sites is 21,000 hours, t te indirect cost rate for that region is
571 per hour of regional orogram division labor.
S1,500,000 = $71.43, or S7]. rounded to the nearest dollar.
21 ,000
What does the indirect cost rate reoresent ?
Using the above examole, assume that the re iort had only
three sites, and the 21,000 regional progran division hours were
charged tO sites as follows:
Site = 1,000 hours
Site B = 15,000 hours
Site C = 5,000 hours
- Total = 21,000 hours.
Indirect costs for those sites would be as follows:
Site A indirect costs = S71 x 1,000 hours = S 71,000
Site B indirect costs = S71 x 15,000 hours = Sl,065,000
Site C indirect costs = $71 x 5,000 hours = S 355,000
Total $1,500,000.
The rate is merely a neans of deterTninirtg an individual site’s
share of the indirect costs allocated to the SuDerfund sites cost
pool.
1—7
-------
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-------
AUTHORIZED EPA REGIONAL ORGANIZATION
REGIONAL ADMINISTRATOR
DE trrY REGIONAL I I ________
ADMINISTRATOR I 1.4
[ 110
C unte
I
.1
I Air Manaqement
Owision
1 Wae Management
I Diinaion
E uaI £nigtov,nent
Ogporunity Offic
1 TEnvironmerr 1
] I
I
Ait w. UV Regiona’ or nan may ref Iec Management Division nenat.
AIt ati Regiona( argeni on may reflec a z*ngle Diviaion inciud ng Air and Was Management funciom.
C.,ngr onai and
Intwgovernmen i
Liatzon
Office of
Regional C,,unael
Cf i of A sis nt Regional
Aoministrator for
P iicy and Manaqement
I
Watar Management
Division
I—9
-------
E A t,direc: Cost Rates and xo anaticr, of Use
This section has four ur oseS
1) provide rules to follow in aoolyir!g regional
indirect rates to individual Superfund sites;
2) issue instructions for including indirect costs
in a site’s cost documer1tatiOI package;
3) orovide the regional indirect cost rates for
each region and fiscal year;
4) orovide a worksheet to calculate the indirect
costs to he claimed in a Suoerfund site’s cost
recovery action.
? .ules for AoolvinC the Pates
Rule 11
A recion’s indirect cost rate must only be aoolied to hours
chard to a sLte DV recional Drocram division Dersonflel. This
s because t at rate has been derived by dividina the indirect
costs allocated to a region’s Sw,erfund site cost pool by only
the nu ”ber of hours char;ed to sites by regional program division
personnel. For examole, expanding the exaz’ ple used in Section I,
assume the total. nurnber of hours charged to sites is as follows:
Regional ?rogre!?% Regional Adr irtistrative ifeadguarterS
Divisions Divisions - Offices
Site A 1.000 200 50
Site 8 15,000 3,500 2,000
Site C 5,000 1,500 500
Total 21,000 5,200 2,550.
If the S71 rate was applied to al l regional hours charged
to sites in the region . the total calculated indirect costs
for sites would be:
Site A: ( 1,000 hours + 200 hours) x $71 = $ 85,200
Site B: (15,000 hours 3,500 hours) x 571 = $1,313,500
Site C: ( 5,000 hours 1,500 hours) x S71 = S 461,500
Total: (21,Ofl hours + 5,20fl hours) x S71 = $1,860,200.
tI—i
-------
This calculation of indjrect costs is obviously incorrect
because the total indirect costs allocated to the region’s
cast pool for Suoerfund sites was only 51,500,000 as developed
in Section I. This example reflects the critical importance of
this rule.
Exception to Rule *1
There is one and only one exceotion to rule *1. The
exception apolies only to regions 3 and 4. The exception is
recuired because the accounting structure of regions 3 and 4 do
not permit distinction between program division and administrative
division hours. Therefore, the total regional division hour
char;es was the allocation basis used to allocate costs from
regionS 3 and 4 procram divisions to the Suoerfund site, Suoerfund
in generals and non—Suoerfund cost pools.
Additionally, the indirect cost rates for regions 3 and 4
were derived hy dividing costs allocated to the Superfund site
COSt pool by the number of hours charged to sites by all regional
divisions (prograr and administrative). Therefore, regions
3 and 4 rnust aooly their indirect cost rates to all regional
hours charged to a site in order to calculate the correct amount
of indirect costs for that site.
Rule *2
The indirect cost rate for a fiscal year must only be
applied to hours tnat relate to that fiscal year . Cost accounting
princiPleS dictate tnat indirect cost rates snould be calculated
for a specific period of time, generally a fiscal year. EPA
calculates indirect cost rates for each fiscal year. EPA uses the
latest calculated rates as provisional rates until the next
fiscal year’s rates can be calculated.
Indirect costs and the cost documentation oackace
This manual is intended to support and defend the indirect
costs that are being claimed in cost recovery actions. It has
been written for the non—accountant to best serve that role.
Therefore, the indirect cost portion of the cost documentation
package should consist of a copy of this manual with only the
applicable regional rate reference sheet and calculation work-
sheet. Any requirements for a more detailed discussion of EPA’S
indirect costs claimed should be directed to the superfund Accoun-
ting Branch.
11—2
-------
Indirect cost rate reference sheet and worksheet
The remainder of this section provides, by region, the
indirect cost rates for each fiscal year arid a worksheet that
will display the apolicatiori of a region’s indirect cost rates
whj h produces the amount of indirect costs claimed in cost
recovery for a Su erfund site. The completed worksheet and a
copy of this manual should serve as the support arid documentation
of the amount of indirect costs claimed. The fully documented
regional prot ram division hours on which a site’s indirect
costs are calculated are, and will continue to be, oart of the
documentation for direct site costs.
11—3
-------
UPDATED REGIONAL RETEIENCE AND WOU.SHEETS FOR CALCULATING
INDIRECT COSTS FOR COSTR!COVU! PTJ POSES AR! ATTACHED
TO THE SUPERPUND INDIRECT COST UPDATE Z 1ORANDUX ISSUED
BT VINc . . L. GOERL, DIRECTOR OF FINANCIAL MANAGEMENT
DIVISION (PM—226)
-------
Superlund Indirect Cost Update
-------
tP gp
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OFFICE OF
ADMINISTRATION
ANO RESOURCES
MANAGEMENT
MEMORANDUM
stjBJEC’r: Superfund Indirect Cost Update
FROM: Vincette L. Goerl, Director
Financial Management Division (PM—226)
TO: Assistant Regional Administrators
Regional Management Division Directors
Gene Lucero, Director -
Office of Waste Programs Enforcement
Edward E. Reich
Associate Enforcement Counsel
For azardous Waste Enforcement
In March, 1986, the Comptroller issued the Superfund Indirect
Cost Manual for Fiscal Years (FY) 1983, 1984, 1985, and 1986 which
provided indirect cost rates to be used in Superfund cost recovery
actiOfl5 The manual also furnished guidance on the application
of the rates along with an explanation of the methodology employed.
The purpose of this memorandum is to update information con-
tained in the manual by (1) providing new rates for FYs 1983—86 and
a provisional rate for FY 1987, (2) clarifying the distinctions
between provisional rates and final rates, and (3) apprising you of
our plans regarding indirect costs during FY 1987.
Attached are revised pages to the Manual providing the new
rates which should be used by the regional financial management
offices in computing indirect costs for cost recovery actions.
The rates should be applied in the same manner as explained in
Section II of the Manual. You will note that the rates for FYs
1983 and 1984 are labelled Final° while the FY 1985—87 rates are
termed “Provisiona.l.” The general distinction is that final rates
are based on the actual costs incurred during the year, whereas
provisional rates are interim, temporary rates to be used until
actual costs are known and final rates can be computed. EPA’s
policy for determining provisional rates is to use the rates from
the latest fiscal year for which rates based on actual costs have
been computed. Since FY 1984 is the latest such year, the FY 1984
rates are used as provisional rates for 1985—87.
-------
In addition to being based on the actual incurred costs for
the year, final rates also reflect adjustments recommended by
auditors from the Office of the Inspector General (oIG). The OIG
has completed most of the fieldwork on audits of FY 1983 and
1984. They have recently begun the FY 1985 and FY 1986 audit.
Ideally, final rates should be the basi s for determining the
indirect costs allocable to a site since they are based on actual
costs. In reality 1 many cost recovery actions are scheduled for
completion before final rates are known. In such cases, it is
acceptable to use the provisional rates. EPA 1 s policy of provisional
rate deter nination based on latest known final rates is a common
and accepted practice utilized by numerous government contractors
and graritees.
Our goals regarding indirect costs for FY 1987 include the
following:
1. Computation and issuance of FY 1985 and 1986 final rates.
2. Analysis of the rate computation methodology for possible
revisions.
3. Evaluation of the existing indirect cost documentation with
an eye towards revision (e.g. the Manual) and/or issuance
of new material.
4. Conducting training courses or workshops on indirect costs
for Regional and Headquarters personnel.
5. Exa nining the feasibility of incorporating indirect costs
into the Superfund accounting and financial reporting process.
The attached pages should be substituted for the corresponding
pages in the Manual. Please direct any questions or comments to
William Cooke of the Superfund Accounting Branch on (202) 382—2880.
Attachments
CC: David P. RYan
Budget Division
Regional Comptrollers
-------
REGION I
Reference Sheet For Calculating Indirect Costs For Cost Recxwery
Final Provisional
flegton l ’s InfJI.rect Cost Rate F! 1903 F! 1904 F! 1985 F! 1986 F? 1987
Per Direct labor Ilourt $ 62 $ 60 $ 60 $ 60 $ 60
1 11owance Ilolder/RespcnslbllIty Centers To Which The Indirect Rate Should Be Appliedi
Code Title Year I pplIcable (X)
F? 1983 F? 1984 F? 1985 F! 1986 F l 1987
O1C Air Division X X X X X
0li Water Division X X X X X
O1N Environmental Service Division X X X X X
O IR Waste Managen * Division X X X X X
-------
iu icti i
SITE h SITE NNIEs_____________
Worksheet For Calculating Indirect Costs For Cost Recovezy Purposes
Direct Ibirs (i.e., Total Regional hours) Total Ibire X Rate Subtotal
01C 011. OltI 01R
FT 1903 $62
FT 1984 $60
FT 1965 $60
FT 1986 $60
FT 1961 $60
‘IUFMJ lklDIRFx’r cOG’rS ‘10
CLAIM IN (X)ST RECDVFRY
I
-------
PEGICX1 II
Reference Sheet For Calculating Indirect Costs For Cost Re very
Final Provisioia l
Reg1cx I I ’s Indirect Cost Rate FT 1983 FT 1984 F l 1985 FT 1986 FT 1981
rer Direct Labor flc*irt $ 68 $ 60 $ 68 $ 68 $ 68
ALlo,ance flolder/Respaislbility Centers To Which The Indirect Rate Shcxild fle A p1ied:
Code Title Year ! pplicab1e (x)
FT 1983 F? 1984 FT 1985 FT 1986 FT 1987
02C Caribbean Field Office X X X X X
02D fli rgency and Remedial Response Division X X X X x
02M Mr and Waste Management Division X X X X X
02N Water Mangement Division X X X X X
02P Environmental Services Division X X X x x
-------
flEGION iii:
SITE J SITE NN1E _______________________
Worksheet For Calculating Indirect Costs For Cost Recovery Purposes
Direct ilcurs (I.e., Total Regional IIciirs) Total I!cxirs X Pate = Subtotal
FY 1983 (Final) $52
FT 1984 (Final) $52
FT 1985 (ProvisIonal) $52
FT 1986 (ProvIsional) $52
FT 1901 (Provisional) $52
‘Iuri L INDIREXT COSTS W
CLAIM IN COST RECOV Y
-------
nrniai I I
srrE It SITE NN4E:______________________
%brknheet For Calculating Indirect Costs For Cost Recovery Purposes
Direct Ikxirn (i.e., Total fleglonal Hours) Total hairs X Rate Subtotal
02C 02D 0211 0211 02P
FT 1983 $68
FT 1984 $68
FT 1905 $68
FY19OG $68
FT 1987 $68
‘flh1’M INDIR 1’ cosrs ‘i
CLAIM IN COST RE(X)VERT
-------
m ic iv
SITE I, SITE NNIEi
bric heet For Calculating Indirect Caste For Q,et Recovery Purposes
Direct Ibiro (i.e., ‘Ibtal Regional flours) Total hairs X Rate Subtotal
FT 1983 (Final) $59
FT 1984 (FInal) $54
FT 1985 (Provisional) $54
F? 1986 (Provisional) $54
F? 1987 (Provisional) $54
‘LUFAL. DIDH EC1’ COSTS TO
CLAIM IN COST R VERY
-------
m xIc ,
Reference Sheet For Calculating Indirect Costa For Cost Recovery
Al l ,ance Ilolder/Responsibllity Centers To Whith The Indirect Rate Shonid Be A pliedi
____ TItle Year A Licable (x )
Provisional
FT 1985 FT 19b6 F? 1987
$ 61 $ 61 $ 61
* •05F was
t)nergency and Remedial Response Branch in FYs
Indirect. co th for those years.
1903—06 but nonetheless slxxild he used in calculatlwj
Region
V’s Indirect
Cost Rate
FT
1983
F?
1984
Per
Direct Labor
!Ionr:
$
71
$
61
Final
( x1e
OSE
05F
05G
0511
05b
051’
050
05R
05W
osy
05Z
F’f 1983
FT 1984
FT 1905
F? 1986
F?
x
x
x
x
x
x
x
x
x
x
x
x
x
x
••x
x
x
x
x
Dir. Office Waste M pnt/F)ierg. Response
Waste Management Division — Super fund
Hazardous Waste Enforcement Branch
Great Lakes Coordinator
I lr Division
Water Division
Waste Management Division — Non-Superfunci
l viraimental Services Division
Central Regional Lab
Eastern Office
S&T Central District Office
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
-------
Page 1 of 2
nnaia i V
SITE h SITE W ME:______________________
Worlcsheet Fbr Calculating Indirect Costs For Q,st Recovery Purposes
Direct Ilcxirs (I.e., ‘fl,tal Regional flours) Total flours X Rate = Subtotal
USE 05? 05G 0511 051 .
FT 1983 $71
FT 1984 $61
FT 1985 $61
rr 1906 $61
Fl 1907 $61
SUB-qurAl. INDIR COSTS ‘ro
CLAIM IN COST REQ)V RY
(transfer to page 2)
-------
Page 2 of 2
I GICU V
SITE ti SITE NAMEt___________________
Wor)csheet For Calculating Indirect Costs For Cost Recovery Purpo8es
Direct Ilonrs (i.e., ‘ibtal Regional Ibirs) Total Ibira X Rate Subtotal
051’ O SQ 05R 05W 05Y 05Z
FT 1903 $71
FT 1994 $61
FT 1985 $61
F’? 1986 $61
F? 1907 $61
Subtotal this page
‘iuri i INDIR I’ C ’IS TO
cIAlIN IN QJST R ’OVERY ____
-
-------
REGION VI
Reference Sheet For Calculating Indirect Costs For Cost Recovery
Final Provision il
Region Vt’s Indirect Cost Rate F? 1983 FY 1984 F? 1985 F? 1986 F? 1987
rer Direct Labor hair: $ 66 $ 60 $ 60 $ 60 $ 60
M1c iance Holder/Responsibility Centers To Which The Indirect Rate Should Be 14plied :
Code Title Year 1 ,1icable (x)
F l 1983 F? 1984 F? 1985 F? 1986 F? 1987
0QI lbustai Lab X X
06J Mr, Pesticides & Thxice Division X X
06K Water Management Division X X X X X
06L* Hazardous Waste Management Division X X X X X
O EM flwircxmental Services Division X X X X X
* 0611 was Management Division in F?s 1983 aiil 1984 and should not be used to calculate indirect costs for
those years.
** 06b was rdr & Waste Management Division in FYs 1983—1985; tht, iu the1ess, should be used in
calculating indirect costs for those years.
-------
REGI0 1 VI
SITE ft SITE NNIE:
Worksheet Fbr CalculaUng Indirect Costs Fbr Cost flecxvery Purposes
Direct Ilcurs (i.e. • Total Regional hours) Total Hairs X Pate Subtotal
0611 063 06K 061 . 0GM
FT 1983 $66
FT 1904 $60
FT 1985 $60
FT 1906 $60
FT 1907 $60
TOrAL INDIRI T C06’FS ‘10
dAli IN co r RE(XNERY
-
-------
Mlczisnce tblder/Respcnslbllity Centers To Which The Indirect Rate Should Be 1 pp1ied:
Provisior a1
FY 1985 FY 1986 FY 1987
$ 65 $ 6 $ 65
Mr and Water Management
Water Management Division
Air and Toxics DLvisicn
Enviroumental Services Divisia
Waste Management Divisicn
Year A licable (x)
FY 1983 FY 1984 FY 1985 FY 1986
x x x x
x x x x
- - x x
x x x x
- - x x
R1 31OW VII
Reference Sheet For Calculating Indirect Costs For Cost Recovery
Final
fleq [ cn Vit’s Indirect Cost Rate
Per Direct tatx r hurt
Ft 1903
$ 68
F? 1984
$ 65
Code Title
07C
07K
071 ,
07 11
07W
F? 1987
x
x
x
x
-------
RBflON VII
SITE Ii SITE NN€:
Worksheet For Calculating Indirect Coete For Coet Recovery Purposes
Direct Ilcurs (i.e., Thtal Regional llcxira) Thtal hours X Rate Subtotal
07C 07K 07f 0711 07W
F? 1983 $68
F? 1994 $65
F? 1985 $65
F? 1906 $65
F? 1987 $65
‘rori L u DInEcr cosr ‘ro
chuM IN Ct6’I’ RECXNFRY
-------
RE)3ION VIII
Reference Sheet For Calculating Indirect Costs For Cost Recovery
Final
Miowance Ilolder/Respaisibility Centers To Which The Indirect Rate Should 13e !4 p1ledi
Year t 1icable (x)
FY 1903 FY 1984 F! 1985 F? 1986 F! 1987
x x x x
x x x x x
x x x. x
x x x x x
•00h1 was Surveillance and Analysis Division In FYs 1983—1906; txit, nontheless 1 should be used in
calculating Indirect costs for those ye r
Reglcn Vi ii ’s
Indirect Cost Rate
F! 1983
F? 1904
Per
Direct
Labor hair:
$ 60
$ 62
ProvIsLcn a1
F? 1985 F? 1986 FY 1987
$ 62 $ 62 $ 62
Code Title
00K Water Div IeIai
OOL Mr and Hazardous Material DIvlsIcn
0 1 Envircnrnental Services D1vieia
QOR Mcntana
aBS Air and Hazardous Material Branch
x
x
x x
-------
REXIION VIII
SITE ft SITE N1 MEt
Worksheet For Calculating Indirect Costs For Cost Recovery Purposes
Direct Ib.irs (i.e., ‘n,taL Regional hours) Total flours X Rate = Subtotal
00K O OL 0 }I O OR 06 5
FY 1983 $60
FT 1984 $62
FT 1985 $62
FT 1906 $62
FT 1987 $62
‘L’OFAL INDLRI 1’ Cc TS W
CLAIM IN cosr RE VE1ff ____
-
-------
R J3ICIl IX
Reference Sheet For Calculating Indirect Casts For Cost Recovery
Final Provision l
RegLm TX’s Tr 1trect Cost Rate F’! 1983 FY 1984 FY 1985 F’! 1986 F? 1987
Per Direct LaLx)r Iloiri $ 65 $ ‘ 63 3 $ 63 $ 6
!U)cMance Itolder/Respaisibil lty Centers To Which The Indirect Rate Shonid De Applied:
Ccxle Title Year Applicable (x)
F? 1983 F l 1984 F? 1985 F? 1986 F? 1987
09K Toxics and Waste Management Division X X X X X
09L Water Management Division X X X X X
091 Air Mamgement Division X X X x x
-------
REGION IX
SITE I! SITE NAME2
Worksheet For Calculating Indirect Costs For Cost Recovery Purposes
Direct flours (i.e., Total Regional hairs) Total Hours X Rate Subtotal
09K 09L 09M
F? 1983 $65
F? 1984 $63
F? 1985 $63
FY 1986 $63
i i oi $63
‘RYFMj INDIRECT CO6’IS TO
ClAIM IN CO F RECX)VERY
-------
REGION X
Reference Sheet For Calculating Indirect Costs For Cost Recovery
1oc*
lOG
1c 1**
lOW
lop **
1OR
‘or
l M
FUr and Toxics Division
Maska Operations Office
Water Division
Hazardcxia Waste Division
Environmental Services Division
Oregon Operations Office
Idaho Operations Office
Washington Operations Office
F? 1983 FT 1984
x x
x x
x x
x x
x x
x x
x x
x x
FT 1985 FT 1986 FT 1987
x x x
x x x
x x
x x x
x x x
X X X
X X X
x x• x
lCC was
“l( 4 was
Dnergency Response in FYs 1963 and 1984; but, nonetheless, shcxild be used in
calculating indirect costs for those years.
Mr and Water Programe Division In FYs 1983 and 1984; but, nonetheless, should be used in
calculating indirect, costs for those yearv
! iirv 1 11anc awl T m1ysts flIvIn rin in FYs 191 )) and 191)4; mit, tlnnetheles9 , should he. used in
Region X’s Indirect Cost. Rate ______ ______
rer Direct Labor Ikiir:
M1 iance llolder/Responsibility Centers To Which The Indirect Rate Should Be 1 pplied:
Code Title Year I 1icab1e (X )
Final
Provision 1
FT
1983
F?
1984
FT
1985
FT
1986
FT
1987
$
64
$
61
$
61
$
61
$
61
1np
-------
Page 1 of 2
REGION X
srrE f, - SITE NNIEz___________________
Worknheet For Calculating Indirect Costs For Cost. Recovery Purp ses
Direct Ilourn (I.e., Thtal Regional hours) Total hours X Rate Subtotal
1CC 1(X] 1CM iON lOP
FT 1983 $64
F? 1984 $61
FT 1985 $61
F? 1906 $61
FT 1981 $61
SUI3-’FC7FM INDIRJ C’I COSTS ‘10
CLAIM IN (X) P REQ)VERY
(transfer to page 2)
-------
Page 2 of 2
REGIU l X
SITE 1, SITE IW4Ei________________________
Worksheet For Calculating Indirect Costs Fbr Cost Recovery Purposeø
Direct hours (I.e., Total Regional flours) Total flairs X Rate Subtotal
1OR lOT lOW
FT 1983 $64
if 1984 $61
F ’ 1985 $61
if 1986 $61
i oi $61
Subtotal this page
1 1t,rriL INDIR ’F COSTS ‘10
cI.AIM IN ajsr P1 VERY
-------
Su,pertund Site Allowances
(Comptroller Policy Announcement
Number 87-07)
-------
_.tO
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
. WASHINGTON. D.C. 20480
I
(JI
COMPTROLLER POLICY ANNOUNCEMENT
No. 97-07
CF ‘ ç
ri
.v:c ESOuRCES
.
SUBJECT: Superfund
FROM: David P.
Comptro l
TO: Assistant Regional Admini
Management Division Di i
Senior Budget Officers
Regi anal Comptrollers
This policy announcement introduces a separate Advice of Allowance for
certain Superfund extramural site activities and describes the policies and
2roce uroS necessary to implement this new allowance. Because the Regions are
tbie only current recipients of site-specific response extramural funding.
t iese new Site Allowances will be Issued only to tie .Regional Offices. They
will provide a separate extramural dollar allowance for Superfund Removals,
Remedial Designs (RO) and Remedial Actions (RA), and will distribute the Design
and Action allowances by site.
BACKGROUND
This policy announcement is one of a continuing series of improvementS
being i mplemented to strengthen the Agency’s funds control procedures. .The
new Site Allowances will contribute to improved funds control in a number of
ways: (I) they provide a fiscal management structure that ensures the Superfund
program Is executed according tO Congressional and Agency plans. (2) they
separate the dollars Into reasonable management units without the loss of
flexibility afforded by the large site response program element, and (3) they
augment tracking and planning activities conducted through the Superfund
Comprehensive Accomplishments alan (SCAP) by imposing formal Agency funds
control requirements on key activities.
POLICY
In the past, each Region received all of its Superfund dollars in one
allowance. Effective with implementation of this policy, each Region mtlt
receive two separate Superfund allowances: a Site Allowance and a Regular
Supe rfund Al 1 owance.
:ors
-------
—2—
The Site Allowance will be divided into three categories:
1) Removal Actions - Extramural Only. This portion of the allowance will
provide funding for emergency as well as non—emergency removals, and will eot
be issued site specifically.
2) Remedial Design - Extramural Only. This portion of the allowance will
be Issued site specifically, listing the funding provided for each design by
site name, site ID number and dollar amount.
3) Remedial Action - Extramural Only. This portion of the allowance will
also be Issued site soecifically. listing the funding provided for each remedial
action by site name, site ID number and dollar amount.
The Regular Superfund Allowance will contain all of the remaining Super—
fund dollars for vie Region. This includes all intramural dollars and all
other Superfund extramural funds (e.g., site inspections, investigations and
feasibility studies, community relations, management assistance, etc.). This
allowance will not be issued site specifically.
IDENTIFICATION OF THE SITE ALLOWANCE
The Site Allowance will be referred to as the UAlphaN allowance since
it will include an “A” in ti’ee Allowance Holder field. For example, Region V’s
regular Superfund allowance is issued to Allowance Holder “05”, while the Site
Allowance will be ssued to Allowance Holder “5A ”. Region X ’s Site Allowance
will be identified as “OA” (zero, A). In this way, the allowance and the
account numbers establisreed from it will be uniquely identified as intended
for site—specific purposes only. This will allow obligating officials to ensure
that funds issued for RD/RA and Removal activities in the Alpha allowance are
not used for other activities.
REPQOGRAMMTNGS
The initial quarterly Su erfund Site Allowance will oe developed based ore
the ’ program’s SCAR. Any modifications tO that initial plan would be submitted
through both the SCAP adjustment/amendment process and through the standard
change reauest process, thus revising the next allowance to be Issued. Change
requests will e required to reprogram dollars among Superfund activities ore
the Site Allowance (even if the site remains the same), between sites under
the same Superfund activity, and between any portion of the Site Allowance and
the regular Superfund allowance. Each change request should equal a net
change of zero dollars and should provide a detailed explanation as to why
resources are bein shifted among activities and/or sites. Requests for
additional resources should he submitted directly to the Office of Solid Waste
and Emergency Response (OSWER). -
SUBMISSION OF CHANGE R!OUESTS
Change requests from vie Regions siould be suomitted to the Budget Division
with a coDy to OSWE ’s Resource 3nage ent St3ff. OSWE wfll review the requests
to ensure that :ne cnarege recues: is cons1;ze : wit tree SCAP and wi ) 1 treen
forward the request to tree Budget ivt5iOfl for fin i aDproval. !ottfi at1ofl
of approval wii 1 be part o tree norma change recueSt anc SCI P update process.
-------
—3—
in order to reduce paperwork, electronic systems for your use In trans-
mitting SCAP ad ust,rents/amefldmefltS and change requests will be established.
Instructio ns on these systems will be Issued in the near future.
MONITORING COMPLIANCE
The Budget Division will monitor obligations against the Site Allowance on
a monthly basis. If an Allowance Holder exceeds the Removal allocation or any
one of thi Remedial Design or Remedial Action site allocations, the Budget
Division will notify the Allowance Holder and request resolution of the over—
obligation. If the Allowance Holder does not sUbmit a change request, deconmilt
or deobllgate funds, or effect corrections In the Financial Management System
as necessary, the Budget Division will Initiate reprograimning from the Allowance
Holder’s regular Superfund allowance. Repeated violations of site or activity
allocations may result in partial or total withdrawal of the Allowance Holder’s
Site Allowance. As is standard Agency policy, if an Allowance Holder exceeds
eitfler the Regular or Site Allowance, the Budget Division will withdraw
obligational authority in accordance with existing procedures.
During the last quarter of the year, the Budget Division will work directly
with tne Allowance Holders and OSUER as necessary to ensure that all allowances
and obligations are aligned prior to year-end closing.
EFFECTIVE DATE
This policy is effective January 1, 1987 and will affect all Regional
Superfund allowances issued thereafter. -
OUESTTONS
If you have any questions about the policy and change request procedures
outlined above, please call Ron Bachand on 382—4165 or Becky Kennedy on
- 382-2995. Ouestions concerning the SCAP should be addressed to Terry Ouverson
on 382—2 47.
cc: J. Winston Porter
Henry Longest
Thad Juszczak
Terry Ouverson
-------
Interim Concurrence Procedures for
Re ctLç ns Under Del gated Regional
Authoruty Reqpiring EPA Headquarters
Concurrence
-------
Interim Concurrence Procedures for Removal Actions Under
Delegated Regional Authority Requiring EPA Headquarters Concurrence
At the present time, there are three types of removal actions under the
delegated Regional Authority which require EPA Headquarters concurrence.
They are:
• removals using the consistency waiver;
• removals with a ceiling of SI. million to S2 million; and
• re.’ ovals that are nationally significant or precedent—setting.
Outlined below are interim concurrence procedures to be used by the
OSCs and RAs to obtain this concurrence. Attached to these interim
concurrence procedures are examples of nationally significant or
precedent-Setting removal scenarios that require EPA Headquarters
concurrence. For a Removal Action under delegated Regional Authority
requiring Headquarters concurrence, the OSC shall prepare an Action
Memorandum that follows the appropriate guidance for the type of action
planned (e.g., compliance with the consistency waiver guidance).
The OSC shall notify the appropriate Regional Coordinator In the
Guidance and Monitoring Section, ERD, of the Regio&s Intent to request HQ
concurrence to initiate a removal (phone: FTS 8—382—2118. Magnafax:
202—755—2155, TWX: 710—822-9269).
The OSC should contact his or her designated Regional Coordinator as
soon as possible to alert ERD that an Action Memorandum Is being sent for
concurrence. Advance notice of a request is important because the Regional
Coordinator must send the Action Memorandum through several additional
offices for concurrence.
The OSC shall then provide the required Information In the Action
Memorandum, with a cover memorandum detailing why the Removal Actton under
delegated Regional authority requires HO concurrence. The request nwst be
signed by the RA, and addressed to the AA/OSWER through the Director/OERR to
the attention of the Director/ERD.
OSCs are encouraged to submit draft Action Memoranda and cover
memoranda to their designated Regional Coordinator tO ensure that all
requests requiring HQ concurrence are complete. In addition, OSCs should
send all final Action Memoranda requiring HQ concurrence to their designated
Regional Coordinator who will Ininediately begin the concurrence process.
The Guidance and Monitoring Section, ERD, will review the Action -
Memorandum, coordinate and gain concurrence from other divisions and offices
as necessary (e.g.. the Office of Waste Programs Enforcement, Office of
General Counsel, and Hazardous Site Control Division). and relay the request
and a reconinendation f or approval/denial tO the Director, OERR. The
Director/OERR will review the request and forward It with a reconr endat1on
to the AA/OSWER for final concurrence.
-------
ERD will communicate OSWER’S decision to the O C as quickly as
possible. Written confirmation of the decision will be forwarded to the 0’
by ERO as soon as practicable.
In an emergency, requests may be made verbally. Within 24 hours, the
OSC should follow up with an Action Memorandum and cover memorandum signed
by the RA.
-------
New Mpthod for Determination of Indirect
CoSts in Supertund Removal Project
Ceiling (ComptrOller Policy Announcement
Number 87-15)
-------
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
L p O1t’ WASHINGTON. DC. 20460
JLI 1 5 gg7
COMPTROLLER POLICY ANNOUNCEMENT ADMINISTRATION
No. 87—15 AND RESOURCES
MANAGEM ENT
MEMORANDUM
SUBJECT: New Method for Determination of Indirect Costs in
!r und Remov Pro ect Ceilings
FROM: vid P. Ryan
tro].ler
TO: Assistant Regional Administrators
Management Division Directors
Senior Budget Officers
Regional Comptrollers
Waste Management Division Directors
Environmental Services Division Directors
Regions I, vi and VII
Director, Office of Emergency and
Remedial Response
Director, Office of Waste Programs
Enforcement
Financial Management Officers
This memorandum announces Agency policy regarding determination
of indirect costs in Superfund removal project ceilings.
BACKGROUND
Except in emergency situations, the On—Scene Coordinator (osc)
must prepare a Removal Action Memorandum before initiating removal
cleanup action. This memorandum must be signed by the Regional
Administrator (RA) or his/her designee. In the event of an emergency
action of $50,000 or less, the OSC, when delegated the authority,
may initiate the removal first, and then may prepare an Action
Memorandum to be signed by the RA or his/her designee to document -
that the removal has been approved.
The estimated project cost of the removal must be included in
the Removal Action Memorandum and this estimate becomes the -
project ceiling. Under the Superfund Amendments and Reauthorization
Act (SARA), this project ceiling cannot exceed $2 million or have
a duration of more than 12 months unless an exemption is granted.
Prior to SARA, the statutory limits were S] million and six months,----
respectively. With the exception of certain legal and site
-------
—2—
investigatory costs, which are covered under Section 104(b) of CERCLA.
the estimated project ceiling covers all direct and indirect costs
of work to be performed or the removal project. Indirect costs are
those costs necessary to operate the program, but which cannot be
attributed directly to specific sites. Examples include program
management, indirect salaries and fringe benefits, administrative
support. rent and utilities.
In March 1986, the Office of the Comptroller distributed the
Superfund Indirect Cost Manual, which provided instructions for
calculating the amount of indirect costs to be claimed in cost
recovery actions. It also established provisional rates (dollars
per hour of Regional direct labor hours) for estimating indirect
costs allocable to a specific site. However, the Indirect Cost
Manual did not specifically address the use of provisional indirect
cost rates in the development of estimated project costs for
removal actions. Therefore, On—Scene Coordinators continued to
use the methodology contained in the January 1985 EPA Removal
Cost Management Manual to project both indirect and direct costs
for Superfund removal projects.
POLICY
To allow a uniform recording method, the application of the
provisional rates contained in the Indirect Cost Manual should
also be used in determining indirect rates for removal costs,
rather than the method described in the January 1985 Removal Cost
Management Manual, which is currently under revision, and will
incorporate this new policy. Accordingly, we are establishing
the following policy. For clarification purposes, it restates
our existing policy concerning intramural and extramural direct
costs, as well as provides the new policy for indirect cost
projection.
Extramural Costs
Project ceilings for CERCLA removal actions will
include an estimated cost unit for anticipated
direct extramural costs at the site. These direct
costs include, but are not limited to, cleanup
contractor costs (ERCS), subcontractors, letter
contracts with State and local governments, order -
for services, notice to proceed contracts,
alternative technology contracts, and interagency
agreements (lAGs) with other Federal agencies.
The “Extramural Cleanup Contractor” costs include a
contingency factor that is determined by the OSC,
normally 10—20%, as discussed in the Removal Cost
Management Manual.
-------
—3—
Other extramural items can include the projected
costs for the Technical Assistance Teams (TAT),
Contract Laboratory Program (CLP) analytical
costs, and the Environmental Response Team (ERT)
contracts.
After reviewing the projected total extramural
costs, the OSC will utilize a 15% contingency
factor, (again as discussed in the Removal Cost
Management Manual). This 15% contingency allows
for unforeseen or unanticipated contractor
expenses —— which can include delays resulting
from poor weather conditions, or equipment
failure. Therefore, the total projected direct
extramural costs should be increased by this 15%
contingency factor. Attachment I, “Removal
Project Ceiling Estimate” illustrates this
guidance.
Intramural Costs
• The OSC will estimate the cost of EPA personnel,
Regional as well as Headquarters, who will charge
hours to the site.
• While the OSC can estimate the number of Regional
hours planned for the site, it is difficult to
project the number of Headquarters hours planned.-
Therefore, it has been determined that a percent-
age (10%) of the planned Regional hours be used
to estimate Headquarters hours. For instance, if
there are 300 Regional hours projected — there
would be 30 hours (10% of 300) planned for
Headquarters.
• Tracking of actual hours can be accomplished
through FMS reports obtained through the Financial
Management Office.
Project ceilings for removal actions at Superfund_
sites will include an estimate for Agency indirect
costs allocable to the site. Indirect costs will
be estimated by multiplying the latest available
provisional indirect cost rates by the estimated
EPA intramural Regional direct labor hours. (Note
that only Regional direct labor hours are used to
calculate indirect costs —— not Headquarters).
Attachment I illustrates this.
-------
-4—
‘ Attachment II pt’ovides the latest provisional
indirect cost rates for F? 1987. Any changes to
these rates will be provided to the OSCs by the
Regional Financial Management Officer (FMO). The
FMO is also available to provide assistance to
the OSC in the calculation of the indirect costs.
In addition, the Financial Management Division
will notify the Emergency Response Division (ERD),
Office of Emergency and Remedial Response, when
changes in the provisional rates occur, so that
ERD can modify the software package currently
being used by the OSCs.
EFFECTIVE DATE
This policy is effective for all current removal projects that
have not had a Removal Action Memorandum approved as of the date of
this policy and for all future site—specific removal activity.
SUNSET DATE
This policy will be incorporated in a forthcoming section of
the Resources Management Directives System. When that section is
issued in final, you will be notified that this policy announcement
is superseded by that document. The next update of the EPA Removal
Cost Management Manual will also be revised to reflect this policy.
INQUI RI ES
If you have any questions concerning this announcement, please
contact Liz Milstead, Fiscal Policies and Procedures Branch, on
382—4205. Questions regarding the EPA Removal Cost Management
Manual should be addressed to Jean Wright, OERR, ERD, on 382—2342.
Attachments
cc; J. Richard Bashar FMD Branch Chiefs
Alvin Pesachowitz Tim Fields
John J. Sandy OHM Coordinators, Regions I-X
Tony Musick TAT/ERCS DPO’s, Regions I—X
Carole Ansheles ERT --
-------
Attachment I
SAMPLE
REMOVAL PROJECT CEILING ESTIMATE
EXTRAI4URAIj COSTS
Extramural Cleanup Contractor ...... $862,500
(This cost category includes
OSCs estimates for: ERCS,
Mini—ERCS, subcontractors,
Letter Contracts, Alternative
Technology Contracts, lAGs with
other Federal agencies, etc.
Also includes 10—20% contingency)
TAT Costs $50,000
CL? Analytical Costs $100,000
ERT Contract (EERU) $100,000
Subtotal, Extramural Direct Costs $1,112,500
15% Contingency of Above Costs ........ $167,000
(round to nearest thousand)
TOTAL, DCTRAMURAL COSTS $1,279,500
INTRAMUML COSTS
Intramural Direct Costs $9,900
($30 X 330 Labor Hours (300 — Region/30 Hdqtrs)
Intramural Indirect Costs .. $18,000
(See instructions below)
TOTAL,INTRANURALCOSTS $27,900
TOTAL REMOVAL PROJECT CEILING ESTIMATE $1,307,400
Formula for Calculating Indirect Costs:
Region Specific Estimated Regional
Indirect Cost Rate X Direct Labor Hours = Indirect Costs
$60 300 $18,000
-------
Attachment II
PROVISIONALrFY 1987 INDIRECT COST RATES
Region Organizations to Which the Rates Apply FY 87 Provisional Rate !
I Air, Water, Environmental Services,
and Waste Management Division $60 per hour
II Caribbean Field Office; Emergency
and Response, Air and Waste
Management, Water Management, and
Environmental Services Divisions $68 per hour
III All Regional Organizations $52 per hour
IV All Regional Organizations $54 per hour
V Directors Office — Waste Management!
Emergency Response; Hazardous Waste
Enforcement Branch, Great Lakes
Coordinator: Central Regional Lab;
Eastern and S&A Central District
Offices; and Waste Management, Air,
Water, and Environmental Services
Divisions $61 per hour
VI Houston Lab; and Air, Pesticides and
Toxics, Water Management, Hazardous
Waste Management, and Environmental
Services Divisions $60 per hour
VII Water Management, Air and Toxics,
Environmental Services, and
Waste Management Divisions $65 per hour
v i i i Air and Hazardous Material Branch;
Montana Office; and Water, Air
and Hazardous Material, and
Environmental Services Divisions $62 per hour
Ix Toxics and Waste Management, Water
Management, and Air Management
Divisions $63 per hour
X Alaska, Oregon, Idaho, and Washington
Operations Offices; and Air and
Toxics, Water, Hazardous Waste, and
Environmental Services Divisions $61 per hour
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Timing of $2 Million Exemption Request
Submission
-------
3T
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON, D.C. 20460
APR 41988
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Timing of $2 Million Exemption Submissions
FROM: Henry 1. Longest II, Director
Office of Emergency and Remedi
TO: Addressees
PURPOSE :
This memorandum is to inform you of the requirements for submitting removal
$2 million exemption or ceiling increase requests to Headquarters for
approval.
BACK(ROUND :
Over the past six months. Regions have been submitting removal exemption
and ceiling increase requests that have not provided Headquarters with
adequate time for review. Several of these requests have been received
only a matter of c 4 ays before Headquarters approval is needed to avoid
bringing the work to a stop. The review process at Headquarters involves
several offices, including the Office of General Counsel and Office of
Waste Programs Enforcement. We need at least three weeks to process a
complete, well—justified request.
PR DC EDLIR E S
The procedures outlined in this memorandum apply to planned and ongoing
removal actions that may require exemptions from the $2 million statutory
ceiling. You must prepare a $2 million exemption request as soon as you
estimate that a project ceiling will exceed $2 million. If you estimate
the project cost will exceed $2 million before you start an action,
Headquarters approval must be received before the removal action can begin
if it is practical to do so. Exemption requests for ongoing sites where
additional funds will make the project ceiling exceed $2 million or ceiling
increase requests for sites that have already received exemptions to the
$2 million statutory criteria must be submitted three weeks before
Headquarters approval is needed.
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—2-
CONCLUSION :
Exemption requests signed by the Regional Administrator that are incomplete
or insufficiently justified will be returned to the Regions to be rewritten.
This will probably result in a substantial delay in obtaining Headquarters
approval. You can avoid this delay by starting as early as possible and
working closely with the appropriate Headquarters Regional Coordinator
thi’âughout the justification and review process. I think your personal
attention to these types of requests is critical to their quality and
timeliness and will appreciate your help on future submissions. Superfund
Rranch and Section Chiefs were provided with guidance on October 22,
1QR7, on the preparation of 2 million exemption requests that you should
find useful.
Addressees:
Director, Environmental Services Division
Regions I, VI, and VII
Director, Waste Management Division,
Regions I, IV, V, VII, and VIII
Director, mergency and Remedial Response Division,
Region II
Director, Hazardous Waste Management Division,
Regions III and VI
Director, Hazardous Waste Division
Region X
Director, Toxics and Waste Management Division,
Region IX
cc: Earl Salo, OGC
Timothy Fields Jr., ERD
OHM Coordinators, Regions I-X
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Model Program for Removal
Site File Management
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. . ‘ . •1 • — V I
MODEL PROGRAM FOR
REMOVAL SITE FILE MANAGEMENT
July, 1988
Office of Solid Waste and Emergency Response
and the
Office of Administration and Resources Management
U.S. Environmental Protection Agency
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MODEL PROGRAM FOR REMOVAL SITE MANAGEMENT
OSWER Directive 9360.2—0].
July 1988
Unites States Environmental. Protection Agency
Office of Emergency and Remedial Response
Emergency Response Division
Washington D. C. 20460
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IOTICE
Devejooment of thi s document wa funded, ihol1y or Lfl part, by
the United States E:wironmentaj. ?rotection Agency under contract
Jo. 68—01—7281 to American Management Systems, Inc. It has been
subjected to the Acency’s revLew process and approved for publi-
cation as an EPA document.
ii
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ir c iv ou. -ui
TABLE OF CONTENTS
1 . Overview 1
2. Site File Stn.i .ire 3
3. Site File I1(it 8
4. File Management Prccesses i
5. Supporting the Administrative Record 14
V
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MODEL PROGRAM FOR
REMOVAL SiTE FILE MANAGEMENT
Overview
Effective file management in the Superfund Emergency Removal
Program requires performance of several important functions, particularly:
• Secunrtg necessary file management supplies (e.g., site file kit)
• Transporting file materials to the site
• Setting up the site file
• Completing appropriate documentation in a timely manner
• Filing documentation in the site t;le
• Distnbuting (copies of) appropriate documentation to the regional
office
• Replenishing file management supplies
• Penodically reviewing the site file (while action is on-going) for
completeness and accuracy
• Determining whether site file documents belong in the administrative
rico rd
• Distributing (copies of) appropriate documentation to the administra-
tive record.
These functions have typically been the responsibility of the On-Scene
Coordinator (OSC). with assistance from 3ther EPA Ragional staff, contractors
(e.g.. TAT) and the USCG Strike Teams. ft is crme l that each Reçion clearly
a siort resoonsibilitv for eacti of these OSC func!icns .
The Model File Management Program described in this document was
prepared to guide the OSCs, Regional administrative support staff, and other
responsible personnel in performance of good site records management. The
Model Program consists of four parts:
• Site File Structure - A model for cassifying all the documentary
material generated in the course of a removal action.
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2
• Site File Kit - A recommended kit containing ;tems necessary o
support structured collection and storage of information at the site.
• Fife Management Processes - A step-by-step review of the stages
of file management for a Site.
• Supporting the Administrative Record - A recommended approach
to ensunng that appropriate site files are placed in the administrative
record.
The remainder of this document presents more information on each of
these four areas.
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J
2. Site File Structure
One of the OSCs important responsibilities during a removal action is to
establish and maintain site files. These files include documentation of all
aspects of the removal -- technical, contractual, and financial. Good
documentation is vital for proper management of the ongoing removal action
and subsequent cost recovery.
Individual Regions currently use varied site file structures. Some of the
variety stems from the different levels of complexity involved in removal
actions. The individuality of emergency response organizations in the
Regions, and of the OSCs within them, also contributes to the variety of site file
structures.
There are two important guiding principles for the site file structure:
• Each Region should have a site file structure that can be used
consistently.
• All site file structures in use in the Regions should Include the same
minimum set of information.
The minimum set of informaticn to be included in all site file structures
consists of the following:
• Chronology of events and dedsionS
• Entry and exit of personnel and equipment
• Contractor work planned/authorized’ and contractor work
accomplished
• Contractor costs
• Site conditions, such as weather
• Cumulative intramural and extramural project costs.
Rem,v I C ,c? M n t,ement ManuaL Chapter 5. Exhibit 5-1.
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v r I.jirec:jv ou. -tji
4
This minimum set of information Is generally documented using the fctlowing
Orrrs:
• OSC Log
• POLREPS
• Site Entry/Exit Log
• Hot Zone Entry/Exit Log
• Work Reports
• 1900-55s
• Incident Obligation Log.
Since certain Regions already have site file structures that satisfy the
minimum requirements, we do not believe that all Regions should be required to
use the same detailed site file structure. However, each Region must ensure
that:
• It adopts a comprehensive, wcrkable site file structure
• Its Regional OSCs use the structure consistarnty.
Exhibit 1 presents the model site file structure which meets the minimum
requirements outlined above and combines aspects of several Regional site file
structures currently in use. This model should be the basis for a file structure in
Reajons which have not already deve’poei a satisfactory file structurg . The
model structure consists of five major groupir’gs cf documentation, each of
which contans a number of specific doc..rrent types, as follows:
(1) Operational documents are those used in general management of
the removal project. These documents are mainly type-written or computer-
generated and are generally on letter-size (8.5 by 11 inCh) paper. Documents
in this category include:
• POLREPS
• Action Memos
• Site Safety Plan
• Contractor Workplans
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MODEL SiTE FiLE STRUCTURE
Opei oiw1
Docw ws
_ 11=
1.
2.
• 3.
4.
5.
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a
0
• Contractor Progress Reports
• CSC Log Books
• Performance Summanes
• Performance Evaluation Reports
• Notice Letters
• Section 106 Orders or Other Enforcement Orders
(2) Legal documents include those issued by a court of law as well
as other binding documents. These documents are mainly type-written arid are
generally an letter-size (8.5 by 11 inch) or legal-size (8.5 by 14 inch) paper.
Examples of legal documents include:
• Administrative Orders
• Access Agreements
• Warranty Deed
• Release of Liability
• Consent Agreement
(3) FinancIal documents include 1 900-55s, timesheets, travel vouchers,
- -. and other items used to document EPA costs for potential recovery actions.
These documents may be forms filled out by hand or by computer and may
include carbon or tissue copies. as backup (e.g., hotel bills). The forms are
generally letter-size, and the backup documentation may be any size. A full list
of financial documents includes:
• Procurement Requests
• Delivery Orders
• 1900-55s
• flmesheets
• Travel Vouchers
• Contract Invoices
• Personnel/Equipment Logs
• Daily Work Reports
• IG Audit
• lAGs Between EPA and Other Federal Agencies
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7
• Subcontracting Justification Documentation
• Order for Services Contracts
• State Letter Contracts
Many of these onginals (e.g.. tirnesheets, travel vouchers. contract invoices)
should be regularly forwarded to the appropriate finance office for processing.
OSCs may wish to include copies of these documents in the site files.
(4) PublIc relations documents cover interactions with the local
community. the media, public officials, and the public at large. They include
such items as media articles, records of communication, and community
relations plans. These documents may be typewritten or computer-generated
reports on various size paper or they may be originals or copies of newspaper
articles or handwritten notes.
(5) Technical documents are more scientifl.c in nature and may include
sampling and analysis data, investigations, arid waste profiles. These docu-
ments may be typewritten or computer-generated and are generally on letter-
size paper. Technical documents also include photographs and maps.
Photographs may be black and white or color, any size from snapshot to
enlargement. Maps may be originals or copies on. usually, oversize stock.
Separate, oversize binders may be needed to store such items.
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Qu. -U1
a
3. SIte File Kit
Use of Site File KitS wi(l make it easier for OSCs and Regional
administrative suDport staff to establish and maintain :he necessary site files. In
the Model Program, the Regional offica would distnbute Site File Kits to OSCs
to maintain for use when they initiate new removal actions. Alternatively.
OSCs may delegate responsibility for the Site File Kits to the Regional
administrative support person or the TAT.
Components of the Site File KIt should be expendable. with each new
site receiving a new, complete kit. The Kit should be streamlined and light.
making it easy for the OSC (or designee) to hand-carry it, along with personal
luggage. to the new site. There should be a single inventory control point in
each Region for the site file kits.
Exhibit 2 illustrates the contents of a sample Site File Kit. It consists of a
sample case (or other sturdy, portable container) which can be outfitted with
pre .4abeiled folders, blank forms, arid basic office supplies. The pre-labelled
folders and blank forms conform to th. site file structure established in the
Region or the model site file structure outlined above. In this example, the Kit
contains six folders with the following labels:
• Operational Documents
• Legal Documents
• Financial Documents
• Public Relations Documents
• Technical Documents
• Photographs/Maps
Blank forms include timesheets, travel vouchers, and personnel/equipment
logs.
The Kit also contains office supplies - ces3ary to begin business at
the removal site. Such office supplies may . c 1 uce:
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EXHIBIT 2
SAMPLE SITE FILE KIT
0 -
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Blank Fa $
EUU7IExiL Lop
Travel Voucbe
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-V
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Persocal Computer
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• Stapler, staples. and staole-puller
• Variety of pencils and pencil sharpener
• Variety of pens (including felt-tip markers)
• Paper clips
• Push pins
• Masking and transparent tape
• Scissors
• Inkless stamps (e.g.. ORIGINAL. DRAFT)
• Post-it notes
• Opaquing fluid
• Calendar
• Document-numbering stamp.
A logical supplement to the Kit is a portable personal computer and a
copy of the Removal Cost Management System software which can be used to
produce reports and analyze data. With a modem, the computer could be used
to transmit computer-generated reports (e.g.. POLREPs) to the Regional office
and headquarters. The computer can also be used to access reference
materials stored on diskette. Such reference materials might include:
• StatemernofWorlc
• Users ’ manuals
• Directory of ERCS contractors
• Applicable sections of ERCS contract
• Guidance/procedures on invoices, dailies, etc.
• EPA phone book (both HO and Region).
While the sample Site File Kit is fauly inclusive, the OSC may require
some bulky items which would be better purchased near the site. Such items
might include a bulletin board, graphics supplies. 3-ring binders, and blank
video tape.
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LI
4. File Management Processes
OSCs have the primary responsibility for maintaining site files while tt e
removal site is active. OSCs may be assisted in this responssb lity by Regional
administrative support staff. TAT and other contractors, and USCG Stnke Team
personnel. The OSC (or his/her delegate) must complete the appropnate forms
and reports in a timely fashion and file them according to the site file structure
endorsed by the Region.
Physical location of the various site file components depends on both
Ihe nature of the removal project and the organization of the Regional office. In
general. the OSC mdst have direct access to complete documentatioii (either
originals or copies) from the time that a removal action is initiated until the final
OSC report is published.
• The major steps involved in site file management follow the life-cycle of
the site-specific removal action:
• Project initiation
• Short-term actions with no command post
• Long-term actions with command post
• Preparation of the final OSC report.
Each of these steps is described in greater detail below.
a Project Initiation
When a project begins, the OSC (or delegated person) should
bring a new site file kit to the site when he/she first visits it. The Regional
administrative support person may later bring additional site filing and office
supplies. It is most important. however, that some form of site file kit, even
abbreviated, be available on site at project start.
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14
5. SupporTing the Administrative Record
Detailed agency policy and procedures on handling the administrative
record requirements of SARA are issued separately by OWPE. it is
recommended that the Regions establish a regular process for reviewing active
site documents against the current criteria for inclusion in the administrative
record.
The suggested steps ri this process are:
• The OSC (or designated person) brings all new site documents to the
Regional oflice on a regular basis for copying and/or storage in
Regional files.
• At the same time, the OSC or other Regional staff responsible for file
management reviews the removal action materials for possible
inclusion in the administrative record.
• The OSC or other designated Regional staff (or contractors) prepares
copies of selected items for the Region’s administrative record and, if
appropriate, the local administrative record maintained on or near the
site.
A flow chart summarizing this process is in Exhibit 3.
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15
EXHIBIT 3
FILE MANAGEMENT TO SUPPORT
THE ADMINISTRATIVE RECORD
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Site Specific Contracting for Removals
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OSWER Directive Initiation Recuest
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ffenry L. Longest It, Director, 0 R
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OSWER OSWER OSWER 0
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C 20460
44
APR IO g8g
C ’CE F
?..SE E EGENCY RESPC
OSWER. Directive #9242.2-02
MEMORANDUM
SU3JECT: Site-Specific Contracting for Removals
FROM: Henry L.. Longest II. Directorlj A.IJ
Office of Ernergency and RemediM.. Response
David J. O’Connor. Director •
Procurement and Contracts Management Division ,/
TO: Envjronmentgl Se ’vices Division Directors
Regions I , VI, VII
Waste Management Division Directors
Regions I, IV, V, VI, VIII
Emergency and Remedial Response Division Director
Region II
Hazardous Waste Management Division Directors
Regions III, VI
Toxics and Waste Management Division Director
Region IX
Hazardous Waste Division Director
Region X
Pu ose :
This memorandum provides direction on the use of site-specific contracts
for removal actions.
Backtround :
A key component of the removal response strategy is site-specific
contracting. Site-specific contracts are desirable because they promote
competition, which leads to getting the best cleanup price possible for
removal actions. The removal program has made minimal use of site-specific
contracts. In FY’88, no site-specific contracting was done. In FY’87, only 4
of the 256 removals started used this approach.
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-2-
In FY’86, after an Inspector General audit of the Emergency Response
Cleanup Services (ERCS) contracts and congressional hearings, a new removal
contracting strategy was developed. The plan called for:
• Large zone ERCS. These contracts would ensure adequate capability
to respond to emergency and time-critical releases.
- Regional ERCS (mini-ERCS). These contracts would supplement the
zone ERCS, but would not have such strict minimum response times.
The smaller size of these contracts would help to open up competition
and get more companies involved in the program.
- Site-specific contracts. These contracts would get the government
the best cost in chose situations where the time for competition
is available. In order to help reduce the necessary lead time.
• a strategy of technically pre-qualifying contractors (PQOPS) is
being established. Again, the small and well defined nature of
site-specific contracts will help to. increase the number of companies
participating in the program.
Objective :
This memorandum is intended to encourage the use of site-specific
contracting in as many removal actions as the circumstances allow. Right now,
many good opportunities for site-specific contracting are being overlooked.
In each of these cases, we could be saving valuable funds, as well as ERCS
capacity, that could be used for ocher removal actions. In non-emergency
situations, a Region should always consider whether there will, be time and
resources to do a site-specific contract. The Regional removal, program should
work with its contracting officer (CO) to decide the best contracting approach.
Site-S eeific Criteria :
Site-specific contracts are contracts, competed through an EPA CO. to
obtain carefully defined cleanup services. Regions should consider the
following factors when deciding whether or not to do a site-specific contract.
1. Lead Time - - Generally, a site-specific contract will take about four
months to compete. Many removal accicns are emergencies or must be started
in less than four months. But 15 to 20 percent of removal actions,
including most of those involving an alternative technology, have a
sufficient planning horizon or will last long enough so that some portion of
the work can be done through a site-specific contract. During the update of
the removal Superfund Comprehensive Accomplishments Plan (SCAP) each
quarter, you should give serious consideration to possible site-specific
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-3.
contracting candidates. e understand that not all sites in the SCAP. iith
a scheduled start date beyond four months, are good candidates, since they
may be low priority projects that are Likely to be deferred or not done at
all. in some cases, it will make sense to do site-specific contracts at
actions that start out as emergencies. If the cleanup work will cake a
substantial amount of time, as is often the situation when a $2 million
exemption is granted. perhaps it will be practical to do the latter stages
of the work sire-specifically. Except in very unusual circumstances, any
removal where an Engineering Evaluation/Cost Analysis is necessary should be
done through a site-specific contract.
2. - - The larger the action, the greater the potential for savings if a
site-specific concract is used. Actions that will cost less than $500
thousand are pr.obably nor good candidates for site-specific competition.
Actions costir.; over 52 w.illion should generally have some cow.ponent of the
work that is done on a SL:e.specific basis.
3. Coi le i:v -- Actions, or parts of large actions, that are relatively
straightforward and unco plicaced. are the best candidates for site-specific
contracting. Since site specific contracting requires being able to write a
clear statement of work, unusual or poorly defined situations should be
handled through the ERCS mechanisms. For example, a site that has a lot of
unidentified materials should probably be done through ERCSI at least up to
the transportation and disposal phase of the work. On the other hand, if
the action is basically excavation and disposal or Incineration, and the
contamination type and amount is well understood, a site-specific cor.cract
may make sense.
4. Hana erent -. Sire-specific contract preparation and management will require
CO assistance and a small amount of program FTE beyond what an ERCS action
would require. Consequently. the projected dollar savings should outweigh
the extra staff time that must be invested. This determination should be
made in consultation with the appropriate CO, who should always be in on
major contracting choices in non-emergency situations. In FY’90, Regions
will get a small increment of Fit just for site-specific contracting. Also,
the Environmental Response Team (ERT) and its Response Engineering and
Analytical Contract are usually available to provide support in developing
the statement of votk for a site-specific contract.
Imnlementation
In non-emergency situations. Regions should start with the assumption
that a site-specific contract is the way to proceed. Site conditions.
resource constraints or other factors may quickly convince the On-Scene
Coordinator (OSC) that a zone or Regional ERCS contractor is the better
response route. Jhere there is a site-specific potential, an early discussion
with a CO is important. The CO can help sort through the schedule and steps to
see if the approach is feasible. All of the Regions already have or soon will.
have their own CO. so this consultation will be relatively easy.
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-4-
If the response will be done through a site-specific con:ract, the OSC is
responsible for writing the scope of work, organizing any necessary technical
evaluation of the offerors, and serving as project officer on the contract.
The CO will take care of managing the advertisement, bid review, negotiations
and actual award of the contract. Clearly, the process will take some
additional OSC time (a rough estimate is 40 to 120 hours beyond what the
project would probably take under ERCS). The ERT is often available to
provide assistance in preparing the scope of work. And once the PQOPS pools of
technically qualified contractors for incineration and fixation are in place
later this summer, there will be time savings in the technical review prccess.
In many cases, particularly those involving alternative technologies, the small
incremental OSC time commitment is well worth the overall cost savings on the
proj ect.
Conr lus ion :
Site-specific contracts, under the right circumstances, can save
considerable funds that can be used for other removal actions. There are no
mandatory requirements or quotas for site-specific contracts. This approach
should only be used where Regions believe that the removal action schedule and
work requirements can be met. There are many instances where this will be the
case, so the removal program needs to make a greater Commitment to using sire-
specifLc contracts in the future.
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Neethtgr Contract Officers Authorization
Before Contractor Activation
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Umlis Siat Off’cs ø
tn r..i ii.mai Pvo sc*’ofl So”d Wss;i m l
*QI4 lCV t S’9s”cv .IOs M
DIRECTIVE NUMBER: 9242.6-03
TITLE: Need for Contract Officers Authorization Before
Contractor Activatim
APPR OVAL DATE: 8/9/89
EFFECTIVE DATE: 8/9/89
ORIGINATING OFFICE: o ,io
FINAL
O DRAFT
1 A- Pending O! approval
STATUS: r — Pending AA -OSWER approval
[ ] C— For review &/or coent
[ ] D— Zn development or circulating
REFERENCE (other documents): headquarters
fl AFPP ()
inic flQ1fl1
P
DIRECT! VE
DIRECTIVE
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UMed States Environmentai Pr tection Agency
WastimgTon DC 20450
&ERA OSWER Directive Initiation Request
2. Ort fnator information
Name of Contact Person 1 Miil Coo. Offce
Sherry Hawkins OS—200 flF RR/Tn
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1 Tei.ptiore Coce
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Need For Contract Of
ficers Authorization Before Contractor Activation
4Si mmary of Directive inc*ioe onel statement of putpo sei
This memo is to remind all. OERR staff that contractor performed work must
not be initiated until the contracting officer has given formal authorization.
IyWO?O$ Saperftg i, A, SAM
Cnntr r’fnr Ar ti pi,
a. Does This Direceve Su ersec. Prsnous Directive(s)’ NO. cu• (nuivisor. bUs)
b. Does it Su Iement Previous Oesctiv(s)’ No Yes - Wh it ecUve (nun . bUss
1DriitL.uv
A - Signed by MJDM B - Signed by OfUce Obsctor C - For Riwiew 1 Couimant 0- in 0.m iv .M
Document to be dIstributed to States by Headquarters? 0 Nc
-
This R &smt Msita OSWER 0Irsc v.a System Fonnat Standards.
9. Signature of Leed Office Directives Coordutator
Date
10 Name and This ol Approv ing Qfliciaj
I-
EPA Form 1315- IT (Rev. 5-•fl Previous editions are oosoial..
OSWER OSWER OSWER 0
VE
DIRECTIVE
DIRECTIVE
DIRECTIVE
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5r 4 ,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON. D.C. 20460
Oc ’CE Oç
AUG 1989 SOIIOWASTE A rgO E’ tERGENCV RESPONSE
OERR Directive No. 9242.6-03
MEMORANDUM
SUBJECT: Need for Contract Officers Authorizaton Before
Contractor Activation
FROM: Henry L. Longest II, Director
Office of Emergency and Remedia nse
TO: All OERR Staff
PurPose
This memo is to remind all OERR Staff that contractor
performed work must not be initiated until the contracting officer
has given formal authorization.
Backaround
As you know, the issue of Superfund contracts management has
been intensely analyzed by congressional staff, GAO, the IG, and
others. We must assure strict adherence to all contract
procedures to avoid any appearance or occasion of mismanagement or
conflict or interest. Furthermore, a contractor is at risk for
any work performed before the authorization date.
Implementation
Until the contract is approved by the contracting officer,
discussions concerning the project with the firm or potential firm
must be related to preliminary scoping matters only; no work may
commence before authorization from PcMD. To speed the procurement
process, specify a date by which P MD approval is needed. PCMD
will always strive to accommodate specific data requirements;
“ASAP’ reque ts are processed after data specific requests.
cc: Cannon (OSWER
O’Connor (P0(D)
Harper (PCMD)
Dietrich (CORAS)
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United States
Environmental Protection
Agency
Solid Waste And
Emergency Response
(OS-240)
OERR 9200.0-1 OB
January 1991
EPA Superfund Removal Procedures
Directives Notebook
Volume 2
Printed on Recycled Paper
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OERR Directive 9200.0-1 OB
September 1991
SUPERFUND REMOVAL PROGRAM
DIRECTIVES NOTEBOOK
VOLUME TWO
Office of Emergency and Remedial Response
U.S. Environmental Protection Agency
Washington, DC 20460
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TABLE OF CONTENTS
VOLUME II
AUGUST 1991
REMOVAL/REMEDIAL INTERFACE COMM EN TS
Relationship of the Removal and Remedial 03/17/86 Supersedes OSWER
Programs Under the Revised NCP 9360.0-6
(OSWER Dir. 9360.0-06A)
Use of Expanded Removal Authority to 02/07/87
Address NPL and Proposed NPL Sites
(OSWER Dir. 9360.0-14)
Unaddressed NPL Sites (OSWER Dir. 07/06/89
9200.2-01)
Use of Removal Approaches to Speed Up 07/06/89
Remedial Action Projects (OSWER Dir.
9355. 0-25A)
Accelerated Response at NPL sites Guidance 12/15/89
(OSWER Dir. 9200.2-02)
Update to the TM Procedures for Completion 12/29/89 Supersedes OSWER
and Deletion of NPL Sites” Guidance Dirs. 9320.2-02, 02A
Regarding the Performance of the Five- & 9320.2-03
Year Reviews (OSWER Dir. 9320.2-3B)
Interim Guidance on Addressing Immediate 01/30/90
Threats at NPL Sites (OSWER
Dir. 9200.2-03)
$IAIg
Guidance for State-Lead Removal Actions 07/10/87 Supplements OSWER
(OSWER Dir. 9375.1-4-W) Dir. 9360.0-6
Clarification on Allowability of Management 06/10/88
Assistance to States for ERAs and Removals
(OSWER Dir. 9375.1-13)
1
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ENFORCEMENT QAIE COMMENTS
Issuance of Administrative Orders For 2/21/84
Immediate Removal Actions
(OSWER 9833.1)
Procedures for Authorizing Application for 04/03/87
Civil Search Warrants Under CERCLA
Entry and Continued Access Under CERCLA 05/05/87
Interim Guidance on Notice Letters, 10/19/87
Negotiations, and Information Exchange
(OSWER Dir. 9834.10)
Draft Guidance on CERCLA 106 06/19/89
Administrative Orders for Removal Actions
DRINKING WATER
Interim Final Guidance on Removal 10/6/87 Updated by 04/19/88
Action Levels at Contaminated Drinking Memo on Drinking
Water Sites (OSWER Dir. 9360.1-1 0) Water Action Levels
Information on Drinking Water Action 04/19/88 Supplements
Levels OSWER Dir. 9360.1-10
ARARs
Policy on Flood Plains and Wetlands 08/06/85 Supplements OSWER
Assessments (OSWER Dir. 9280.0-02) Dir. 9280.0-1
CERCLA Compliance with other 10/02/85 Supplemented by
Environmental Statutes (OSWER Dir. OSWER Dirs.
9234.0-02) 9234.0-3 and 9330.2-1
Discharge of Wastewater from CERCLA 04/15/86
sites into PO1Ws (OSWER Dir. 9330.2-04)
Occupational Safety and Health Administration: 12/19/86
Labor Federal Register Vol 51, No. 244
Interim Guidance on Compliance with 07/09/87 Supplements OSWER
Applicable or Relevant and Appropriate Dir. 9234.0-02
Requirements (OSWER Dir. 9234.0-05)
2
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MISCELLANEOUS COMMENTS
Notification of Restrictions on Reimbursement 11/25/85
of Private Party Costs for Removal Actions
(OSWER 9225.0-3)
Analytical Support for Superfund 03/20/86
(OSWER 9240.0-2)
Guidance on Producing Superfund Guidance 02/09/87
Documents (OSWER Dir. 9200.4-1)
Comparison of EPA and Commonwealth of 03/31/87
Kentucky PCB Cleanup Standards
Concurrence on Payment of Relocation Costs 06/15/87
for Business During Removal
Employee Occupational Health and Safety 07/07/87
(OSWER Dir. 9285.3-02)
EPA Interim Guidance on Indemnification 10/06/87
of Superfund Response Action Contractors
Under Section 119 of SARA (OSWER Dir.
9835.5)
Significant New Legislation- Federal 12/30/88
Employees Uability Reform and Tort
Compensation Act of 1988
OSHA Final Rule, Hazardous Waste 03/06/89 Supersedes 12/19/86
Operations and Emergency Response Interim Final Rule;
(29 CFR 1910) Docket No. S-760A See 07/07/87 OSWER
Dir. 9285.3-02
Treatability Studies Contractor Work 07/12/89
Assignments (OSWER Dir. 9380.3-01)
Final Guidance on Administrative Records 12/03/90 Supersedes 03/01/89
for selecting CERCLA Response Actions OSWER Dir. 9833.3A
(OSWER 9833.3A-1)
Furthering the Use of Innovative Treatment 06/10/91
Technologies in OSWER Programs
(OSWER 9380.0-17)
3
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ReIaj onship of the Removal and Remedial
Programs Under the Revised NCP
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OSWER Directive’fnitiatior, Reciuest
Revisions to the NCP redefine removal and remedial actions to expedite
cleanup activities. This document addresses management Issues that may
arise between the two programs in Headquarters and the Regions when
impleiientin the new program definitions.
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I UNITED STATES NVIRONMEUTAL PROTECTION AGENCY
A
WASHINGTON. D.C. 20460
M R l1 86
OFFICE OF
MEMORANDUM so’..a WASTE A140 EMERGENCY RESPONSE
SUBJECT: Relationship of the Removal and Rem ed 1 Programs Under the
Revised NC? f /J
FROM: Henry L. Longest II, DirectorCiJi ,
Office of Emergency and Remedif eSP0flSe
TO: Environmental Services. Division Directors, Regions I, Vt, and VII
Waste Management Division Directors, Regions I, IV, V. Vt, VII and VIII
Emergency and Remedial Response Division Director, Region II
Hazardous Waste Management Division Director, Region III
Toxics and Waste Management Division Director, Region IX
Hazardous Waste Division Director, Region X
Atteched is t ie final issue paper entitled “Relationship of the Removal
and Re ’ edia1 Programs Under the Revised NCP”. This pape has been revised
to reflect comments and suggestions submitted by the Regions during the
reviev’ of the draft pape”. The comments also raised several additional
issues, which we will defer for incorporation into future procedural guidance.
Among these issues are program specific requirements for decision documenta-
tion, community relations activities, State involvement, public review and
NEPA compliance, deletion activities, enforcement, and contract execution.
As I indicated in my previous memo on the topic, there are other policy
issues, e.g., operation and maintenance, which we are examining as a result
of this change in removal criteria. We intend to involve the Regions as
we make decisions on all of these issues.
Attachment
cc: J. Winston Porter, OSWE
Jack McGraw, OSWE
Gene Lucero, OWPE
Walt Kovalick, OERR
Russ Wyer, HSCD
Tim Fields, ERO
Steve Lingle, HRSD
Sherry Hawkins, E D
Margie Russell, OSWER
Dan Berry, OGC
Pam John, PCMD
Jim Lounsbury, PAS
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Relationship of the Removal and Remedial Programs Under
the Revised National Contingency Plan
PURPOSE :
Revisions to the National Contingency Plan (NCP) redefine the response
categories of “removal actions” and “remedial actions” so that removals now
Include all activities formerly considered immediate removals, planned removals,
and initial remedial measures (ERMs). While these changes In response categories
will expedite many cleanup activities by avoiding previous remedial requirements
for remedial investigations/feasibility studies (RI/FSs) and full cost effective-
ness analyses, this expanded definition of removal actions may raise questions
regarding the relationship between the two programs in both Headquarters and
the Regions. This memo addresses some of these questions and provides overall
information on the interface of the removal and remedial programs under the
new NCP.
BACKGROUND :
Earlier CERCLA program implementation teided to clearly differentiate
certain activities as removal or remedial, an those activities fell accord-
ingly into the removal or remedial program orgelizationS. Subsequent
ex2erience in CERCLA program implementation and new program directions being
implemented via the revised NCP indicate that a higher degree of program
Integration and flexibility will enable us to stabilize or cleanup a greater
number of sites in a more expedited manner. In the case of cleanups, this
will allow us to delete more sites from the National Priorities List (NPL.).
While this goal is seen as highly desirable, it creates some “gray” areas
with regard to managing actions that were termed “initial remedial measures,
but that are now defined as removals.
Despite the NCP changes, certain types of response actions continue to
fall into discrete progra’mnatic areas. In the view of OERR, the following
actions are still logically located In the removal and remedial programs,
respect i vely.
Removals are taken to abate or mitigate threats to public health, welfare,
or the environment and are generally surface cleanups. Actions considered
to be wit itn the area of removal program responsi’ility are:
— all response actions at non—NPL sites and releases
— stabilization actions at ?IPL sites prior to initiating remedial
acti vities
- classic emergencies arising at ongo(ng remedial actions that
require On—Scene Coordinator (OSC) expertise and fast-track
contractor activation
- emergency provision of an alternate water supply
— complete cleanup of NPL sites, where consistent with remedial
program scheduling/activities, the public interest, and within
the purview of a defensible removal action.
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-2-
Remedial actions are generally complete site cleanups that address
ground water impacts, where necessary. Actions within the area of remedial
program responsibility are:
— traditional, pre—planned remedial activities
— removal actions determined to be necessary during the course of
a remedial action, within the expertise of the remedial project
manager (RPM), and for which sufficie’ t time exists for competitive
contracting procedures.
Certain activities or phases of a response action, however,
may not lend themselves to classification into these specific pro rani areas,
but rather require effective program integration and management flexibility
to implement successfully. Examples of these situations are:
— A massive drum removal at an NPL site resulting in nearly
complete site cleanup which creates a question of whether
the removal or remedial program should complete the cleanup.
— A completed removal at an NPL site wfli:1 raises the question f
whether the removal or remedial program should continue action
and perform the remedial Investigation under the CERCLA 104(b)
authority to document that the removal action has cleaned up the
site, in accordance with the NPL site deletion guidance and the
NCP.
In situations such as these, there appears to be a need for a manage-
ment prerogative to assign program responsibility on a case—by—case basis.
A manager may determine that an IRM-type removal Is necessary and that It
should be handled by the remedial program for the sake of continuity In an
on—going remedial action, or the manager may determine that the action should
be performed by the removal program to expedite a time—sensitive response
action.
DISCUSS1 :
OERR supports the concept of organizational flexibility in this area so
that IRM—type removals or certain other removal activities may be undertaken
using either remedial or removal program resources. It seems reasonable to
deal with these programmatic overlaps on a case—by—case basis that allows
flexibility to 1) use appropriate program expertise, 2) use the most advan-
tageous contract mechanism, 3) use realistic time and urgency factors whefl
planning a response, and 4) assure consistency, of removals with longer term
remedial actions. The implementation of this concept would be the responsi-
bility of Regional program managers who, when making actual response decisions,
need the flexibility tO assign available and appropriate expertise (OSC or
RPM) and dollar resources to specific cleanup situations that may overlap
traditional definitions of removal and remedial.
‘V.
Since the goal of the program Is to’ clean up sites as quickly as
possible in the most cost effective manner, Fund expenditures must con-
tinue to be carefully controlled to assure expeditious cleanup or mitiga-
tion at reasonable cost to the public. Therefore, It Is essential that
the most appropriate contracting mechanisms are used to assure maximum
return for expenditures. The remedial construction program, through the
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9360 .0-6A
—3—
Corps of Engineers (CUE) and the REM contracts, uses the invitation for
bid procedures to secure lump sum or fixed unit price contracts. The
removal program uses Emergency Response Cleanup Seriices (E CS) contracts
to allow quick response on a pre.-negotiated and pre-comoe ed time and
materials basis. In addition, the removal program may procure fixed
price contracts on a case-! y-CaSe basis, if necessary, and if time permits.
IRM-type response activities may lend themselves, depending upon the
circumstances, to any of these procurement mechanisms. The ERCS contract
system provides expedited and kn ledgeable response capability. REM con-
tracts and CUE contracts provide cleanup capability when time allows for
full competitiOn. ERCS should generally be reserved for removal and
IRM-type situations requiring rapid response Such as drum removals or lagoon
drawdowflS. Other IRM-type removals with 4-5 months lead time have probably
been identified in the FY 86 SCA? and could be pursued through REM or remedial
constrjCtion contracts. Thus, it may often be desirable to pursue fixed-price
contracts to address certain removal actions where urgenCy is not a critical
factor. Where urgency is a factor, ERCS is the preferred contract mode. It
must be noted, however, that a contracting warrant and appropriate training
is a prerequisite to an USC or RPM using the E CS contracts.
A test program is oe r g developed by HSCD to facilitate removals at
NPL sites where remedial actions are underway and time exists for competi-
tive fixed price contracting. Removal actions taken under this pilot
program will be performed by remedial contractors to ensure continuity
with RI/FS activities and schedules as well as consistency with the
final remedial alternative. The approach will entail the use of an
Engineering Evaluation/Cost Analysis (EE/CA) procedure, plans and specifi-
cations development, ccmpetitive bidding and construction management to
plan, design, and implerner t the project. Initial pilot cases will include
correctionS to a landfill and provision of alternate water supplies.
Guidance for performing EE/CAs is under development.
Further, for certain ‘non—urgent” removals, it may be desirable to
perform a limited cost analysis that is consistent with the Guidance
Document for Cleanup of Surface Tank and Drum Sites and draft guidance on
EE/CAs. Where time allows, such an analysis could help assure selection
of the best technical option at the best price. Such an analysis would
not be appropriate for an urgent removal situation.
Response personnel are also reminded that it is E A policy to provide
potentially responsible parties (PRPs) the opportunity to perform the
response actions described in thismemo pursuant to a CERCLA §106 Adminis-
trative Order on consent. Where PRPs have been identified and do not take
appropriate or timely actions, EPA will issue a unila-taral order where
appropriate. Where the decision is made to Initiate a Fund—financed
action because of the exigencies of the situation, the Agency will also
pursue cost recovery for all costs incurr’ d in conducting the removal
action. EPA will also pursue treble damages where PRPs fail to comply with
an administrative order without sufflcient cause. More specifically, once
a site has been identified for removal action the Region must determine
the immediacy and seriousne.&S of the release situation.
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-4-
At sites presenting an extremely urgent situation (e.g., delay of start-up
of on—Site work cannot exceed one week following determination of the need
for a removal), the Region should make a reasonable effort to identify PRPs
and notify the parties verbally as to their potential liability followed by
a notice letter as SQOfl as possible. The parties should also be given a
limited time to respond to the request for conducting the removal action.
In the event the negotiations are successful and PRPs agree to undertake the
removal -action, the agreement should be embddied in an Administrative Order
under §106 of CERCLA. It is also EPA policy to proceed with a unilateral
administrative order if PRPs fail to respond appropriately to the request
provided necessary criteria are met. For non—urgent removals, procedures
for obtaining PRP response should be essentially the same as those for
remedial actions. Notice letters should be issued to ?RPs, negotiations
should be scheduled quickly in order to secure private party cleanup
within an established timeframe consistent uit.’l the conditions presented
by the site. After negotiations, the procedures for issuing administra-
tive orders are the same as those described above.
CONCLUSIONS
Experience has demonstrated that all removals are not necessarily
urgent and that all remedial actions are not necessarily deferrable.
Having program flezi ility to allow certain IRM—type meesures to be per-
formed under t e supervision of remedial staff and be deferred (because
of longer contracting procedures) or to have these actions performed by
removal staff on an expedited schedule, gives managers a means of real-
istic and justifiable scheduling of response actions. This flexibility
also allows for manage’iient continuity and accountability within programs,
and for the use of appropriate expertise.
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Use of Expanded Removal Authority to
AddresS NPL and Proposed
NPL Sites
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UNITED STATES ENVIRONMENTAL PROTECTION-% NCy
WASHINGTON D.C. 20460
“1 g It •
EB fl9ffl
F • OFFICE O
SOLsO WASTE AND EMERGENCY RISPONS
MEMORANDUM
SUBJECT: Use of Expanded Removal Authority to Address NPL and Proposed
NPI. Sites
FROM: Henry 1. Longest II, Director
Office of Emergency and Remedial Res
TO: Waste Management Division Directors, Regions I-X
Environmental Services Division Directors, Regions I, VI, and VII
The Super und Amendments and Reautnorization Act of 1986 (SARA) and
‘che recent National Contingency Plan (NCP) revisions expand removal authority
in several ways. The Office of Solid Waste and Emergency Response (OSWER)
is exploring methods to use this increased authority innovatively to enhance
efforts to clean up sites on the proposed and final National Priorities List
(NPL).
A number of provisions in SARA broaden removal authority. First, the
amendments revise the statutory limits on removal actions from Si million and
6 months to 52 million ana 12 months. The new law also provides for a waiver
of these limits where ucontinued response action is otherwise appropriate and
consistent with the remedial action to be taken.” The three “emergency
criteria” contained In the prior law still exist. The new waiver, however,
is Independent of the original three exemption criteria. This means that an
exemption may be granted If the proposed removal action meets the original
three criteria, or the fourth criterion alone. Another new provision in
SARA requires removal actions to “contribute to tne efficient performance of
any long—term remedial action” to the extent practicable. Finally, SARA
establishes a preference for using alternative technologies and resource
recovery techniques to achieve more permanent solutions.
In a4dition, the NCP revisions expanded removal authority by authorizing
removal aItions to be taken in response to threats, rather than just immediate
and significant threats. This increased authority allows remedial operable
units, e.g., the former initial remedial measures, to be implemented under
ioval authority.
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—2-
OSUER would like to examine whether these new legislative and
regulatory removal authorities can be used to clean up, or substantially
clean up, any of the final or proposed NPL sites. .It.may be possible to
delete certain sites from the NPL, or ta-achleye..substantlal cleanup, by
performing a remedial operable unit under the expanded-removal authority.
Each Region is, therefore, requested to evaluate -Its f-thai rand proposed NPL
sites and to Identify those sites that may be appropriately addressed using
removal authority. Such sites must meet the criteria for initiation of a
removal action In Section 300:65 of the NCP, -and-the -potential response
actIQfl should generally remain within the new $2 mllllonhl2 month removal
limits. OSWER will consider approval of actions that exceed the $2 million
limit by a reasonable amount If the additional funds are ’needed to conduct
an efficient response. Complicated response actions that require extensive
study, such as the cleanup of a contaminated aquifer, would-more properly
be addressed using remedial authority.
Each Region is requested to provide us with the following Information:
0 List of potential NPL sites for removal action.
For each site, a brief description of
- Site background
— Threat
- Proposed removal action
— Estimated cleanup cost.
The appropriate removal, remedial, and enforcement personnel In the Region
should coordinate with each other in this effort. Please submit this
Information to Tim Fields, Director, Emergency Response Division, no later
than February 27, 1987.
cc: J. Winston Porter
Jack 14. McGraw
Tim Fields
Russ Wyer
Superfund Branch Chiefs, Regions I-X
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Unaddressed NPL Sites
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. 0 C 20460
r
p 4
5T . .%O EMERGE 4CV E O $
i98
MEMORANDUM
SU5JECT: Tinaddressed NPL Sites
Z2 t,4,dC(4 (7t ’
FROM: Btuce A. Engelbert. Chief
Response Operations Branch
TO: OHM Coordinators
Regions I-X
1 have attached the memorandum from Henry Longest, which requests chat
information be suppiLod regarding unaddressed NPL sites. As we discussed in
Kansas City, you need to develop realistic schedules for conducting the removal
site assessments and provide this schedule and any other corrections or
information regarding these sites to us by July 21, 1989. CERCLIS will be
used to track the completion of removal site assessments and this information
should be entered into the new CERCLIS field so that we can accurately track
progress in this area. For the Federal facilities included in the attached
listing, C CIA fund money may not be used to conduct the removal site
assessments. Other govern enc agencies are responsible for Federal facilities.
If you have any additional questions, please feel free to call me on 382-2188.
a rnent
cc: Tim Fields, ERD
ROB Staff
John Riley, RSCB
Christina Griffin, RSCB
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460 .111 !;::dL ‘1
JUL -
MEMORANDUM CLI .—S.: E .‘.RGE ,. ‘ RSPO
A OS ER Direct .ve 9200.2-
SUBJECT: Unaddressed NPL Sites
FROM: Henry L. Longest Ii, Director
Office of Emergency and Remedia e onse (OS-200)
TO: Director, Waste Management Division
Regions I, IV, V, VII, viii
-- - D±rector, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Regions III, VI
Director, Toxics and Waste Management Division
Region IX
Director, Hazardous Waste Division, Region X
Director, Environmental Services Division
Regions I, vi, vii
Pur ose : The purpose of this memo is to request submission, by
July 21st, 1989, of a status report on unaddressecj NPL sites, anL
to reiterate our intention to complete removal assessrents at all
unaddressed sites by September 30, 1989.
Back round : Through the recently released Suoerfund Management
Review, the Administrator has directed us to quickly assess UPL
sites to determine whether actions fund—1ead or enforcement) are
needed to render sites safe from imediate hazards to public
health and the environment. In implementing this initiative, we
have set a goal to conduct removal assessments at all unaddressed
NPL sites by the end of FY 1389 (unaddressed sites are sites wnich
have had neither removal nor remedial activity).
As you may be aware, I have recently instructed my staff to
begin an investigation of these unaddressed NPL sites. This
effort was initiated with a March 6th memo to the Division
Directors requesting a status report on all unaddressed, final N?L
sItes. Your responses to that memo rovjded much insight into the
nature of these sites. Perhaps cst portantly, your replies
indicated that many of these sites have received some substant e
cOtion either through State efforts or the efforts of other
government agencies (as in the case of Federal facilities .
Im le entatjon : To immediately implement the recommendations of
the Management Review, I am exPanding our investigation to inclu
sates proposed for addition to the NPL as well as those added tc
the f na1 list since the March memo and I am including tne
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—2—
requirement that removal assessments be conducted at these
unaddressed NPL sites. Since the removal assessment requirement
was not part of the original March exercise, I have attached the
March 6th list of unaddressed, final NPL sites (Attachment A) for
your review. The attachment listing the new group of sites
(Attachment B) is broken into two categories; those sites which
were proposed to the NPL prior to Update 7 (June 1988) and those
sites proposed in Updates 7 and 8.
As with the March exercise, I am requesting that you review
your site lists (Attachment B only) and determine if the CERCLIS
data showing no removal, remedial, or enforcement activity is
correct. Please pay particular attention to whether State
enforcement lead or Federal facility activity has or should be
indicated. If the data is correct, provide me with your planned
course of action for the site in question including current site
status and plans for any upcoming RI/FS or removal activity or
associated enforcement activity.
You will need to use both Attachments A and B for the removal
assessment exercise. Sites which we believe have received an
adequate removal assessment are marked with an * beside the EPA
I.D. on the attachments. As removal assessments are completed at
the remaining sites, enter this data into CERCLIS. To allow for
this, we have created a new event in the database for you to
record the completion of the removal assessment. We wi ] ]. monitor
progress towards our September 30th goal through the database. n
ccnduct ng the removal assessment, Regions should be sure to araw
on the wealth of data gathered during the course of the listing
process. This data can also be used in determining if a removal
assessment has already been conducted for the site in questior..
If you have any au st ons — gar 4 ng h aj status eoc-s
or the azzached lists, please oontact Tom Sheckells at
8-382-2466. QuestIons concerning the removal assessments
should be referred to Bruce Engelbert at 8—382-2138. A recap of
the im le entazior. sohedule for this memo follows:
Action Timeframe
Review attached list of unaddressed Status reports/CERCLS
sites (Attachment B). Correct CERCLIS corrections due C B 7, 1
if data is incorrect, submit site
status report to HQ on legitimate
unaddressed sIzes.
Conduct removal assessments at unad- September 30, 1989
dressed N?L sites (Attachments A
and 5). Code com 1ezion dates .nto
CERCLIS.
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—3—
Attachments
cc: Superfund Branch Chiefs, Regions I-X
Jon Cannon
OERR Division Directors
Bruce Engelbert
Penny Hansen
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Attachment A
(For use in removal assessment analysis only)
Region Sitename EPA ID .
Davis (GSR) Landfill R1D980731459*
Haverhill Municipal U’ MAD980523336*
Revere Textile Prints CTD0045326 10
Shpack Landfill MAD S0503973
2 Anchor Chemicals N1D001485226
Griffiss Air Force Base NY457 1924451
Jones Sanitation NYD980534556
Naval Air Engineering NJ7 170023744
Rocket Fuel Site N!D980535124
Vestal Water Supply 4-2 NYD980652267
3 Follandsbee Site WVD004336749
Metal Banks PAD046557096
Stanley Kessler PAD01426997 1
4 Koppers Co. Inc. SCD003353026
Leonard Chem Co. SCD991279324
Olin Corp/McIntosh Plant ALD008 188708
Palmetto Recycling Inc. SCD037398120
Boise Cascade/Onan/Medtro ! IDO534 17515
Delevan Muni Well 4 W 1D980820062
East Bethel Demolition ?fliD98l088l80
Freeway Sanitary Landfill DO383840O4
Joust Army Ammo Plant Mfg 1L72 13820460
Joslyn Mfg and Supply MND044799856
Kent City Mobile Home M 1D9810899 15
Koppers Co/Galesburg ILD990817991
Koppers Coke !* D000Bl9359
Lauer I San Landfill W 1D058735994
McGraw—Edison Company M 1D005339676
Nutting Truck & Caster Co. D006154017
Olmsted County San Ldfl MND000874354
Perham Arsenic I’21D980609572
SCA Independent Landfill M 1D000724930
Scrap Processing Inc. W1D046536785
Southwest Ottawa County M 1D980608780
Sparta Landfill M 1D000268136
Spartan Chem Co. M 1D079300125
St. Augusta Ldf 1 Engen. t ’ 1D98l002256
St. Regis Paper Co. MND057597940
Tomah Armory WID980610299*
Tomah Fairground Area W1D980616841*
Waite Park Wells MND9$1 002249
-------
Region Sitenaine EPA I.D .
5 Waste Mgmt. of Michigan M1D060179587
Waste Research and Reclam. W1D990829475
Windoin Muni Dump MND980034516
6 None
7 Obee Road Site KSD980631766
8 Mouat Industries MTD02 1997689*
9 Mather APB (AC & W Disp.) CA8570024 143
McClellan AFB (36 Areas) CA4570024337
10 Bangor Ordinance Disposal. WA7170027265
Kaiser Aluminum Mead Work WAD000065508
McChord AFB WA8570024200
Pesticide Lab — Yaki1na WAD 120513957
Umatilla Army Depot 0R62 13820917
-------
Attachment B
Final Sites
Unaddressed Pre-Update 7 Sites
Ri Nutmeg Valley Road
R2 W.R. Grace/Wayne Interim Storage
R3 USA Letterkenny Southeast
R5 Douglas Road Uniroyal Inc.
Joliet Army Ammo Plant LAP
Omega Hills North Landfill
Savanna Army Depot
Southside Sanitary Landfill
Tomah Municipal Sanitary Lanf ill
TRW Inc. Minerva Plant
R6 Lone Star Army Ammunition
Castle Air Force Base
Moffett Naval Air Station
Norton Air Force Base (LI 2)
CTD9 80669261 *
NJ 1891837980
PA62 138 20503
1ND980607881
1L02 10090049
W 1D000808568
1L3 210020803
1ND980607360
W 1D980610307*
0HD004179339
TX72 1382 18319
CA357002455 1
CA2 170090078
CM 570024245
Proposed Sites
R2 Naval Weapons Sta. Earle-Site A
R3 Suckingham County Landfill
Culpepper Wood Preservers
Dover Gas Light Co.
13M Corp. (Manassas Plant)
Mobay, New Martinsville
Pigeon Point Landfill
River Road Landfill
Rohm and Raas Landfill
Transicoil Inc.
Tyler Refrigeration Pit
USA Aberdeen — Edgewood
USA Aberdeen, Michaelsviil
USN Naval Air Development Center
R4 D a ond Shamrock Corp
Olin Chemical Group
Piper Aircraft Corp.
Rochester Property
R5 Sarrels Inc.
F restone Industrial Products
H 0 D Landfill
Hooker Montague Plant
Zerr-McGee Kress Creek
N30170022172
VAD089027973
VAD059165282
DED98 0653550*
VAD064872575
WVD0568663 12
DED98 04 54 603
PAD000439083
PADO9 1637975
PADO57 1523 65
DED9807 05545
MD2 210020036 *
MD32 1002 13 55*
PAG 17 0C24 54 5*
GAD99074 1092*
GAD 040690737
FLD 004054284*
SCD980840698*
MIDO1T 168673
IND9 80605877
1LD98 0605836
M 1D006014906
1LD980823991
-------
Unaddressed Pre-Update 7 Sites
Proposed Sites
R5 Kysor Industrial Corp. MIDO4368184O
Lacks Industries Inc. M 1D006014666
Stauffer Chem Co. Chicago 1LD005110 143
R6 Air Force Plant #4 TX7572024605*
Ri Frit Industries 1AD041 103193
US Nameplate 1AD054758958*
RB Midvale Slag UTD08 1834277*
R9 Kunia Wells I H 1D980894943
Kunia Wells II H 1D980895049
Marley Cooling Tower Co. CAD009140120
Mililani Wells H 1D980895031.
Waiva Shaft H 171700900 16
Waipahu Wells H 1D980895023
Waipio Heights Wells II H 1D98089503.5
RiO Naval Air Station Ault Fid WA5 17 0090059
Naval Air Station Seaplane Base WA6 170090058
Naval Undersea Warfare WA 1 17 0023419
Old Inland Pit WAD98 0982557*
-------
Unaddressed NPL Sites (Updates 7 and 8)
Final Sites
Ri Bennington Landfill
Burgess Brothers Landfill
Holton Circle
R2 Action Anodizing & Plating
Global Landfill
Sydney Landfill
R3 Berkley Prod Co Dump
Boarhead Farms
Bush Valley Landfill
Elizabethtown Landfill
R4 ABC One Hour Cleaners
Cedartown Municipal Landfill
Elmore Waste Disposal
New Hanover County Airport
Red-Penn Sanitation Co.
T.H. Agriculture and Nutrition
Wilson Concepts of Florida
R5 Carter Lee Lumber Co.
Continental Steel Corp.
Hechimovich Landfill
Interstate Pollution Control
Parsons Chemical Works
SE Rockford Groundwater
Yeoman Creek Landfill
R6 Cal West Metals (SBA)
Cleveland Mill
Fourth Street Abandoned Refinery
Gulf Coast Vacuum Service
PAB Oil and Chemical Service
P7 Hydro-Flex Inc.
Mid—America Tanning Co.
Pester Refinery
R8 Cld Minot Landfill
VTD98 1064223*
VTD003965415*
NHD98 1063860
NYD072366453
NJD063 160667
NYD980507677
PAD980538649
PAD047726 16 1*
MDD980504 195*
PAD980539712
NCD024644494*
GAD980495402*
SCD980839542
NCD98102 1157
KYD98 1469794
GAD042 10 126 1
FLD041 184383
1ND016395899
1ND00 1213503
W 1D0529 06088
1LT 180011975
M 1D980476907*
1LD98 1000417
ILD9 80500102
NND98 1 155930*
0KD980696470*
LAD9 80750137*
LAD9 8074 9*5 *—
KSDO O7 13 54 29
1AD085824688*
KS00 00S 2984 6*
NDD980959548*
R9 Modesto Groundwater C3ntar. na :on
Newmark Welifield
Valley Wood Preserviflg
Rb Fairchild Air Force Base
Joseph Forest Products
Yakiina Plating Co.
CAD96 1997752
CAD9814345 17
CAD06302014 3
WA9571924647
0RD068782820*
WAD040 187890*
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Unaddressed NPL Sites (Updates 7 and 8)
Proposed Sites
Ri Atlas Tack Co.
Barkhamsted-New Hartford
BFI/Rockingham
Cheshire Associates Property
Darling Hill Dump
Durham Meadows
Gallup’s Quarry
Parker Landfill
Precision Plating
Rose Hill Regional. Landfill
Saco Municipal Landfill
Tansitor Electronics Inc.
R2 Higgins Disposal Service Inc.
Jones Chemical Inc.
Naval Security Group
Niagara Mohawk/Operations HQ
Tn-City Barrel
Witco Chemical Corp.
R3 AIW Frank
Anne Arundel Co. Landfill
Bell Landfill
Berks Landfill
Jack’s Creek/Sitkin Smelt
Kent City Landfill
occidental Chant! Firestone
Rect icon/Allied Steel
Sasgertown Industrial Area
Suffolk City Landfill
Sussex Co. Landfill *5
R4 Agnico Chemical Site
Anodyne, Inc.
Beaunit Corp./Circular Knit
Benfield Industries, Inc.
Beu].ah Landfill
BMI Textron
Brantley Landfill
Caidwell Lace Leather Co.
Carrier Air Conditioning
Cedartown Industries Inc.
Chem—Form Inc.
Firestone Tire and Rubber
Fort Hartford Coal Stone
Genral. Tire and Rubber Company
Green River Disposal Land
Hevi-Duty Electric Co.
MAD 00 1026319*
CTD980732333*
VTD98 052 0092
CTD98 1067317
VTD9805201 18
CTDOO 1452093
CTD108960972*
VTD9 81062441
CTDO513 16313
RID9 80521025
MED98O5O4393 _
VTD0 00509174
NJD053102232
NYD0008 13428
PR4170027383
NYD98066436].
NYD980509285
NJD045653854
PAD004351003
MDD980705057*
PAD980705 107
PAD000651810*
PAD9 80829493
DED980705727
PAD980229298
PAD002353969
PAD98 0692487
VAD980917983
DED980494637
FLD98022 1857
FLD9 81014368
SCD00044 .7268
NCD981026479
FLD980494660
FLDO52 172954
KYD98 0501019
1(YD04573 8291
TND044062222
GAD095840674*
FLD080174402*
GAD9908 55074
KYD980844625*
KYD O O63 71074
KYD9 80501076
NCD O39 102959
-------
Unaddressed NPL Sites (Updates 7 and 8)
ProT oaed Sites
R4 J?D Electronics/channel Master NCD122263825
Lexington County Landfill SCD980558043
Madison County Sanitary Landfill FLD98 1019235
Murray Ohio Manufacturing TND981014954
Redwing Carriers Inc. ALD980844385*
T. H. Agriculture Nutrition Co. ALD007454085*
Townsend Saw Chain Co. 5CD980558050
USMC Camp Lejuene NC6170022580
Wingate Road Municipal Incineration FLD9B 1O2147O
Woodbury Chemical Co. FLDOO4I.46346*
Woo].fo].k Chemical Works GAD003269578*
R5 Adams County Quincy Landfill 1LD980607055
Albion Sheridan Township Landfill M1D980504450
Allied Paper/Portage Creek MIDOO6007306
Amoco Chemical Corp. 1LD002994259
Beloit Corp. 1LD02 1440375
Central Illinois Public Service Co. 1LD98 178 1065
Dupage County Landfill 1LD980606305
Fort Howard Paper Co. W10006 136659
Hiaco Dump 1ND9805 00292
Icaydon Corp. M 1D006016703
Lenz Oil Service Inc. 1LD0054517 11
Madison Metro Sewage Sludge W1D078934403
Muskegon Chem Co. M 1D0725695 10
Sauk County Landfill W 1D980610 14].
State Disposal Landfill MID98O6O 34l
Tippecanoe Sanitary Landfill 1N0980997639
USAF Wright Patterson Base 0H757 17243 12
Warner Electric Brake and Clutch 1LD006 1 14152.
Waste Mgmt. of Wis—Brookfield W 1D980901235
Whiteford Sales and Serv Nat Lease * 1ND980999791
Woodstock Municipal Landfill 1LD980605943
R6 D. L. Mud Inc. LAD981058019*
Lee Acres Landfill (USD01) NMO980750020*
Mosley Road Sanitary Landfill 0KD980620868*
Pagano Salvage NND980749980*
Prewitt Abandoned Refinery NMD9aO622773*
Rio Grande Oil Co. Refinery TXD980795736*
Sunray Oil Co. Refinery 0KD000764357*
Tex—Tin Corp. TXD062 1 13329*
R7 E. I. Dupont De Nemours 1AD980685804
Electro—coatings Inc. 1AD005279039
John Deere (Ottu nwa Works) 1AD005291 182
Lehigh Portland Cement Co. 1AD005288634
Northwestern States Portland Cement 1AD98085246].
-------
Unaddressed NPL Sites (Update 7 and 8)
Prooosed Sites
Ri Oronogo-Duenwig Mining
Peoples Natural Gas Co.
Sheller—Globe Corp. Disposal
St. Louis Airport/HIS/Futura
29th and Mead Groundwater
R8 Comet Oil Co.
R9 Advanced Micro Devices #9
Brown & Bryant Inc.
Concord Naval Weapons Station
Crazy Horse Sanitary Landfill
CTS Printex
El Toro Marine Corps Air Station
Fresno Sanitary Landfill
GB? & Pittsburg Dumps
Hewlett Packard I Palo Alto
Hexcel Corp.
Intersil
Kaiser Steel Corp.
Kearney KPF
Pacific Coast Pipe Lines
Riverbank Army Ammunition
Sola Optical USA Inc.
Solvent Service Inc.
Sulphur Bank Mercury Mine
Synertek # (Bldg 1)
TRW Microwave
Yuma Marine Corps Station
RiO Centralia Municipal Landfill
Eastern Michaud Flats Contamination
Hanford 100-Area (DOE)
Hanford 1100—Area (DOE)
Hanford 200-Area (DOE)
Hanford 300-Area (DOE)
Kerr-Mcgee Chem Corp.
Monsanto Soda Springs Plant
Northwest Trans. (S. Harkness St.)
Pacific car & Foundry Co.
Pasco Sanitary Landfill
M0D98068 628].
1AD980852578*
1AD980630750
M0D980633 176
KSD 00724 1656
MTD980403554*
CAT080034 234
CADO 52384021 *
CA7170024528
CAD9 80498455
CAD009212838
CA6170023208
CAD9806369 14
CAD9 80498562 *
CAD9 80884209
CAD058783952
CAD041472341
CA0008274938*
CAD9 81429715
CAD98063 678].
CA7210020759
CAD981171523
CAD059494 310
AD9 80893275 *
AD9 90832735
CAD OO9 159088
AZ097 159 0062
WAD98082 6662
1DD984666610
WA3890090076
WA4 890090075
WA189009 0078
WA2890090077
1DD0413 10707
IDDO81S 30994
WAD0273 :5621*
WADOO92 9210
WAD991261874
-------
Useof R npvaI Approaches to Speed Up
RèmediaI Action Projects
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON • D C 20460
JUL 6 g99
OFcICE OF
SOLID AND EMERGENCy RESPO
OSWER Directive No. 9355.O-25A
MEMORANDUM -
SUBJECT: Use of I pmova] Approaches to Speed Up Remedial Action Projects
FROM: J4i J ZJ d 1 c 1 1
Ac 1 ting Assistant Administrator
TO: Ep virorunental Services Division Directors
Regions I, VI, VII
Waste Management Division Directors
Regions I, IV, V, VI, VII, VIII
Emergency and Remedial Response Division Director
Region II -
Hazardous Waste Management Division Directors
Regions III, VI
Toxics and Waste Management Division Director
Region IX
Hazardous Waste Division Director
Region X
Puroose :
This memorandum defines the basic requirements to be met when a Region
chooses to use removal authorities and contracting methods to speed up
remedial projects.
Back Eround
Several Regions have expressed interest in the use of re ova . authorities
and contracting methods to speed up remedial actions on National Priorities
List (NPL) sites where surface cleanups may result in a total site clean. ..p or
completion of a major portion of the site. Memoranda cor.:ainirig conditions
for this approach were forwarded to Region IV on March 18, 1988, and July 11,
1988. (OSWER Directive No. 9355.0-25). Region IV has used this approach on
eight sites. Three of these sites are now scheduled to be deleted from the
NPL this fiscal year. Region III has also used this approach at two NPL
sites.
-------
2
Several issues arose in defining and implementing this approach, which
required coordination of policies and procedures between both the remedial ai
removal programs. This coordination resulted in a unique set of requirements
which each Region must meet when undertaking the use of removal authorities to
achieve early action at NPL sites.
Obj ectivel
This policy is aimed at speeding up response at some NPL sites. The
purpose is not to establish an alternative to remedial contracting methods but
to provide an additional response option until such time as rapid remedial
contracting alternatives are fully developed. This document supersedes
previous memoranda on this topic. This memorandum describes the criteria and
other considerations for effective utilization of this approach. The
requirements outlined in this memorandum do not apply to the usual 40 to 50
emergency and time-critical removal actions conducted by the removal program
at NPL sites each year.
I1nDlementation
The following are the key requirements which must be met before removal
authorities or removal contractors can be used to perform remedial actions at
NPL sites.
1) All sites must have a signed Record of Decision (ROD). Should the
proposed response activities entail a substantive change from the
remedy specified in the ROD, the Region must either amend the ROD or
publish an explanation of significant differences, whichever is
appropriate, prior to commencing the cleanup.
2) Sufficient time and enforcement resources must be allocated to the
extent feasible to conduct a potential responsible party (PRP) search
and obtain information about PRP’s through Section 104(e) actions.
Follow-up PRP Search activities should be conducted where necessary.
If PRP ’s are identified during this process, the Region should send a
notice letter, and, consistent with CERCLA Section 122(a) and (e),
issue special notice or advise the PRP that such procedures will not
be utilized. If site exigencies require early response, the Region
may chose to issue notice orally and follow up in writing. Assuming
that there is sufficient time, the Region should conclude Section 106
negotiations with the PRP prior to initiation of any response action.
3) These cases draw upon removal authorities. buc are considered
remedial actions. Consequently, if the Region takes an enforcement
action, it must utilize a consent decree or issue a Unilateral
Administrative Order. If compliance is not achieved and time is
critical (typical of many removals) the Region should take over the
response and pursue cost recovery, seeking treble d ii ’ ges and/or other
penalties.
4) All activities must be well documented for cost recovery.
-------
3
5) A signed State Superfund Contract must be obtained from the State,
prior to the start of the action, providing the Section 104(c)
assurances for cost sharing, operation and maintenance, off-site
disposal and, when applicable, 20-year waste capacity.
6) The proposed response action at the site must meet the National
Contingency Plan (NCP) criteria for removal actions in section
300.65.
7) All proposed response acti ’ities must be described in a signed recoval
action memorandum. If the response should exceed the statutory limits
of 12 months or $2 million, it will be necessary for the Region to
prepare an exemption request. In the-case where site costs are
expected to exceed the $2 million limit, Headquarters approval must
be obtained prior to commencing the removal action. These exemption
requests must be prepared as early as possible in the process. Only
Regional approval is required for exemption requests where activities
are expected to exceed the 12-month limit.
8) All funding, activity codes, account numbers, SCAP and CERCLIS data
will use remedial codes. This will ensure that these activities are
reported on and tracked as remedial actions. Funds will come from
the remedial portion of the Region’s Advice of Allowance (AOA). All
projected starts should be entered into CERCLIS with their projected
obligations data for the appropriate quarter of the fiscal year.
9) Community relations requirements must be met and an administrative
record must be established for each site. The public comment period
must be observed in accordance with NCP requirements for both the
remedial and removal programs.
.O. Generally at the completion of this cleanup work, the site should be
ready for deletion. OSWER Directive 9320.2-3A procedures us: be
followed to delete the site from the NPL. When a ajor portion
(significant operable unit) of work is undertaken using these
procedures and the site does not qualify for deletion. unusual
circumstances (e.-g , emergency) must preclude the use of re edia.
contracting mechanisms.
Future Plans
The remedial program has two initiatives underway to provide the
contractual mechaniscs and construction manager..ent sy :ems needed to expedite
projects within the rex ediai process and authorities. One is the Corps o
Engineers new rapid response contracts used to expedite smaller ieces of some
large site cleanups they manage. The second is the subcontrac:i g provision
of the Alternative Remedial Contracts Strategy (ARCS). ARCS will more
typically be used for smaller construction projects such as those anticipated
for coverage under this policy. With the inclusion of experienced engineering
and construction management contractors in the ARCS program. opportunities
open up for the use of more expeditious cnns:ruction subcon:racts for some
sites with plans for early initiation of construction based on limited design.
-------
6
Alternatively, other subcontracting vehicles such as basic ordering agreement
and other methods of bidder prequalification might be used to reduce
procurement lead time. More guidance on the use of these mechanisms will be
issued. It is expected that as the Regions gain experience with the ARCS
program and these subcontracting mechanisms, the use of removal authorities and
program mechanisms to speed up remedial projects will be phased out.
Other Considerations
If removal authorities are going to be used, careful consideration must
be given to the type of contract that is selected for the work. Obtaining the
best price and maximizing competition are always major goals, as in using
competitive contracting mechanisms to the maximum extent practicable. The
Emergency Response Cleanup Services (ERCS) contracts may be the most
appropriate vehicle where rapid response is necessary under emergency and time-
critical circumstances. However, a Region should always consider using the
Prequalified Offerors Procurement Strategy (PQOPS) or other site-specific
contracting mechanisms. This is especially true if the project is a non-
emergency situation where the consistency waiver to the $2 million limit is
used.
When use of alternative technologies is specified in the ROD, PQOPS
should be considered. The use of this arrangement is most appropriate when a
3 to 5 month lead time is available. This procurement strategy is about to be
implemented for mobile incineration. PQOPS for other technologies will
follow. When the lead time is approximately 4 months and PQOPS is unavail-
able, use of site-specific subcontracts under the ERCS contracts may be
feasible. This approach may be used only where the prime contractor has not
proposed rates for the site’s particular cleanup activity. In addition, many
Regions have Regional ERCS contracts with 24 to 72 hour response times whicF
may be more cost-effective than the Zone ERCS contract$. In all cases, the
Region should keep in mind that achieving the maximum competition is a primary
goal of both the removal and remedial programs, taking into account the need
for rapid response and the magnitude of the risks posed.
A final factor to consider is removal contracts capacity. Generally,
this policy should not be used to do expensive remedial work. I: is intended
to help expedite deletion from the NPL of projects of modest scope. This
approach cannot be used where the adequacy of. removal contracts capacity is
jeopardized. Being able to always promptly and fully respond to the normal
removal workload is a higher priority than doing the remedial work that is the
subject of this
In summary, use of removal auth3ri:ies or removal (e.g., ERCS) cOntracts
to take early action at NPL sites is an alternative in certain limited
situations. The site must meet the criteria for a removal action as well as
fulfill all the regular remedial requirements. This strategy will enable the
Regions to complete cleanup at certain NPIJ sites in a more expeditious and
efficient way and to start the necessary deletion process.
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5
cc: Superfund Branch Chiefs, Regions I-X
OHM Coordinators, Regions I-X
Henry Longest, OERR
Bruce Diamond, OWPE
Timothy Fields, ER.D
Russel Wyer, HSCD
Clem Ras tatter, 0P11
Sally Mansbach, OWPE
Frank Russo, OWPE
Linda Boornazian, OWPE
Earl Salo, 0CC
Kirsten Engel, CCC
Karen Clark, 0CC
Arthur Weissinan, OPM
Becti Van Epps, PAS
Bruce Engelbert, ERD
John Riley, ERD
Mark Mjoness, ERD
Linda Carczynski, ERD
Dave O’Connor, PCMD
Sallyarine Harper, PCMD
Pat Patterson, PCMD
-------
Accelerated Response at NPL Sites
Guidance
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON. 0 C 20460
DEC 1 5 1989 OSWER Directive No. 9200.2—02
:
so.: .: . R E\C PtS-’ .SE
MEMORANDUII
SUBJECT: Accelerated Response at NPL Sites Guidance
(Superfund Management Review: Recommendation No. 22)
__‘v , 1 - -
FROM: . Don R. Clay
sistant. Administrator
TO: ‘ Director, Waste Management Division
Regions I, IV. V, VII, VIII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Regions Iii, VI
Director, Toxic and Hazardous Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
Director, Environmental Services Division
Regions I, VI, VII
Regional Counsels, Regions I-X
PURPOSE
The purpose of this memorandum is to transmit Agency guidance on
accelerating responses at National Priorities List (NFL) sites.
M KGROUND
Pursuant to the Superfund Management Review, a workgroup was formed to
develop guidance to assist the Regions in taking expedited approaches to site
cleanups and in making NFL sites “safer.” After evaluation of Regional
comments, the guidance was split into two separate documents. The attached
guidance, the first of the two documents, describes available procedures and
contract mechanisms to allow the Regions to take action at NFL. Sites more
quickly under both removal and remedial authority.
IP1PL TAT TON
Specifically, the attached guidance requires that you:
o Ensure that all pre—remedial. removal, remedial, nd erforcement staff
• are faznfliar with the need to accelerate responses at NFL Sites;
Prinsed o.i Recycled Paper
-------
—2—
o Use Superfund removal and remedial authority, as appropriate, to take
accelerated actions at those NPL sites where feasible and prudent;
o Empioy enforcement authority promptly at NPL sites to encourage
increased PRP involvement in Site cleanup;
o Establish mechanisms to ensure proper coordination and funding of
accelerated responses within the Regions; and
o Promote the operation of Superfund as “one program” through use of
elements such as improved interoffice communication and cross—training
of Agency personnel.
If you have any questions on this guidance, please contact Hans Crump—
Wiesner, Acting Director, Emergency Response Division, at FTS 475—8720, or
Scott Maid at FTS 382—4671.
Attachment
cc: Henry Longest II, OERR
Lloyd Guerci, OWPE
Lisa Friedman, OGC
Hans Crump—Wiesner, ERD
Clem Rastatter, OPII
Larry Reed, HSED
Russ Wyer, HSCD
Superfund Branch Chiefs, Regions I—X
0J i Coordinators, Regions I—X
-------
OSWER Directive 1/9200.2—02
Accelerated Response at
National Priorities List Sites 1
1.0 INTRODUCTION
1.1 Background
In June 1989, the Environmental Protection Agency (EPA) completed a study
entitled “A Management Review of the Superfund Program” (Superfund Management
Review). This document outlined a new long—term strategy for management of
Superfund and described the need for EPA guidance on expediting response at
National Priorities List (NPL) sites. The report also emphasized elimination
of immediate risk to public health and safety and the minimization of long—term
risk from hazardous substances at NPL sites as new measures of program success.
The Superfund Management Review specifically recommended that EPA “take
expedited approaches to site cleanup whenever possible” (p. 3—13). The report
also emphasized the need for creative or alternative approaches for improving
the effectiveness and timeliness of remediation at NPL sites. Recommendations
from the Superfund Management Review were further discussed in a September 18.
1989, memorandum from F. Henry Habicht to the Regional Administrators, entitled
“Immediate Actions to Implement the Superfund Management Review.”
1.2 Pur13ose
This document focuses on accelerating responses at NPL sites and
coordinating available removal, remedial, and enforcement procedures and
contract mechanisms in order to accomplish this. This guidance is intended for
Regional site managers, including On—Scene Coordinators (OSCs) , Site Assessment
Managers (SAMs), and Remedial Project Managers (RPMs), enforcement staff, and
other Regional and Headquarters Superfund personnel. By implemertt3.ng these
procedures, we may accelerate all types of response actions, and encourage
management of NPL sites under “one program.”
1.3 Scone
Specifically, this guidance addresses the following areas:
o What is an accelerated response? (Section 2.1)
The policies and procedures established in this document are
intended solely for the guidance of EPA personnel. They are not
intended, and cannot be relied upon to create any rights,
substantive or procedural, enforceable by any party in litigation
with the United States. EPA reserves the right to act at variance
with these policies and procedures and to change them at any time
•without. public notice.
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OSWER Directive #9200.2—02
o What are the available mechanisms to accelerate responses at NPL
sites? (Section 2.2)
o What are the enforcement aspects of accelerated response?
(Section 3.0)
o What additional factors should be considered in an accelerated
response? (Section 4.0)
o How may the various Superfund program offices wor.: as “one program” to
accelerate responses? (Section 5.0)
2.0 ACCEL L&T RESPONSE
Accelerated responses may be used in many situations where site managers
want to act on sites quickly. Site managers have access to a variety of
mechanisms for accelerating responses to threats at NPL sites. In most cases,
the tools are modifications of established response options that have been in
common use in the Superfund program. Regions should follow the provisions,
described below, whenever practicable to expedite cleanups at NPL sites.
2.1 What Is An Accelerated Response ?
An accelerated response is an action taken at an NPL site using stream-
lined response mechanisms, with the purpose of acting quickly to reduce acute
risk to human health and the environment. Accelerated responses can help
Regions reduce risk from these sites, and can allow for more efficient use of
EPA resources.
If evaluation of a site indicates that an accelerated response is
warranted, then appropriate action should be taken, by:
o Conducting a removal action in accordance with section 300.65
of the National Oil and Hazardous Substances Pollution
Contingency Plan (NC?) 2 (proposed NC? section 300.415); or
o Preparing and executing an early action operable unit Record of
Decision (ROD) based on existing data or a limited data gathering
ef fort; or
2 For ease of use, references to both the old (1985) NCP and the
proposed (1988) NCP sections are provided in the text. It is
important to note, however, that the 1965 NCP remains in full
effect until a revised NCP is promulgated. The revised NCP, which
was proposed on December 21, 1988 (53 ER 51394) is expected to be
finalized in 1990, at which point the revised section numbers will
become effective.
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OSW’ER Directive #9200.2—02 — 3 —
o Implementing techniques to expedite the planning and design process
prior to remedial construction.
2.2 What Are The Available Mechanisms?
Removal Actions
Removal actions are used to prevent, abate, minimize, stabilize, or
mitigate releases or threats of releases of hazardous substances, pollutants,
or contaminants that pose a threat to public health or the environment.
Section 300.65 of the NCP (proposed NCP sect .on 300.415) describes factors for
determining that a removal action is appropriate (e.g., contamination of
drinking water, threat of fire or explosion, potential for migration) and the
types of removal actions that are appropriate in certain situations. Removal
actions are performed at NPL and non—NPL sites. Approximately 40 removal
actions have been conducted annually at NPL sites.
A site manager may, in certain situations, choose to use removal
authorities and contracting methods to accelerate response at NPL sites.
Actions with a planning period of less than six months are generally (but not
always) performed prior to the development of the ROD. If a removal action is
indicated at an NPL site, and adequate planning time (i.e., greater than six
months) is available before the start of the removal, an engineering
evaluation/cost analysis (EE/CA) should be conducted as part of the non—time—
critical removal. Alternatively, a remedial investigation/feasibility study
(RI/FS) can be conducted. EE/CAs contain evaluations of possible alternative
technologies, selection of the response, and document the decisionxnaking
process. The EE/CA must be made available for public comment as part of the
administrative record, in compliance with the public participation procedures
for non—time—critical removal actions described in §300.820 of the proposed
NCP.
For any category of removal action, the appropriateness of the action is
not limited to the factors explicitly described in section 300.65 of the NCF.
nor does the NCP limit the responses EPA may take to the examples given in the
NCP. Action Memoranda must be completed for all removal actions and must
include all information described in the “Superfund Removal Procedures Manua1,
Chapter III—C.8. Expedited enforcement activities, such as expedited PR.P
searches and use of model administrative orders, are appropriate for these
actions.
Continuation Of Removal Action. As an acute threat at an NPL site is
being addressed by a removal action, it may be possible that an incremental
expansion in the scope of the removal action would help to further protect
human health and the environment and lead to expediting overall cleanup of the
site. Regions may determine on a case—by—case basis whether this is
appropriate at a site. The following factors should be considered in such
case—by—case evaluations:
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OSWER Directive #9200.2—02 — 4 —
Scope of Continued Action
a After an acute threat at an NPL site is addressed by a removal action,
Regions should consider whether there is any appropriate action that
would allow further protection of human health and the environment.
This may require employing a removal or remedial action to complete an
operable unit. The aim of the accelerated response is to reduce risk
to human health and the environment at the site.
Concurrence
o The decision to accelerate response through use of removal authority
must be made in consultation with pre—remedial, remedial, removal, and
enforcement program managers. The State should also be involved
whenever the State is expected to play a role in the action. If the
action does not meet removal criteria, however, the accelerated
response option chosen must be performed as a remedial action.
o The Region must weigh the loss of cost—share against the need for, and
efficiency of, accelerating the response at a Site Ofl a case—by—case
basis. Regions should attempt to obtain agreement from States on the
proposed course of action before proceeding with any accelerated
response option.
o If the cleanup will exceed the $2 million statutory limit for a
removal action, then Headquarters approval of an emergency or
consistency exemption is necessary. If no exemption applies, the
accelerated response option chosen must be performed as a remedial
action.
o If the removal response will be nationally significant (e.g.,
involving dioxins or Indian lands), Headquarters concurrence will be
necessary. Headquarters concurrence will also be necessary if the
action employs innovative or emerging alternative technology.
o The public’s interest and concern in the site should be taken into
account when deciding what the response should be.
Restrictions
o The State, remedial program, PRP, or other authority must be willing
to conduct post—removal site control (PRSC) where needed following a
Fund—financed removal action (see section 4.4). The Region may pursue
unilateral enforcement action, including judicial action if needed, to
obtain PRSC. If arrangements for PRSC cannot be made, the accelerated
response must be performed as a remedial action.
o If the action will require extensive, long—term response, such as
restoration of a contaminated aquifer, the response should be
performed as a remedial action.
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OS ’ER Directive 92OO.2-O2 S -
Contract Resources
o Regional resources (including resources that may be transferred from
the remedial program) must be adequate to meet the requirement:s for
an accelerated removal response at the site without compromising
emergency response capability in the Region. If resources for
accelerated responses at NPL sites cannot be provided without
compromising emergency and time-critical response capabilities in the
Region, the accelerated response must be performed and funded as a
remedial action.
o An assessment of removal and remedial contract capacity should be
performed in order to determine the capacity, availability, and
suitability of response contractors to the site in question. Regions
must evaluate relative contract capacity before an accelerated
response can be continued at the site.
Removal Approaches To Remedial Actions. Remedial action may be conducted
using removal contracting methods where the action complies with all removal
as well as remedial requirements. In these circumstances, remedial funding is
used to implement a ROD at an accelerated rate. Guidance on this response
option was issued to the Regions on July 6, 1989 (see “Use of Removal
Approaches to Speed Up Remedial Action Projects” OSWER Directive t 9 355.O 25A).
These actions are remedial actions. The term “removial,” which has been used
informally to characterize these actions, should not be used.
The response must meet both remedial and removal program requirements.
Time is saved by using removal contractors, and through the use of an abbre-
viated and less formal design procedure. Remedial funding is provided through
a ROD and a state cost-share is provided through a Superfund state contract.
For all purposes, including enforcement, these actions are remedial actions.
All agreements with PRPs must be embodied in a consent decree. Since this
response approach uses large amounts of limited Emergency Response Cleanup
Services (ERCS) capacity, it should only be used in unusual emergency or time.
critical circumstances. New and streamlined remedial alternatives should
obviate the need for this course of action in most cases.
Remedial Actions
The purpose of the remedial action process is to implement remedies that
reduce, control, or eliminate risks to human health and the environment. Only
those sites included on the NPL are eligible for Fund-financed remedial actLor
(NCP section 300.68). The remedial process generally includes an RI/FS, a
proposed plan, a ROD, engineering design, and implementation of the remedial
action. All remedial actions must comply with the requirements of §300.68 of
the NCP ( 3OO.43O and 300.435 of the proposed NCP).
A site manager may, in certain situations, choose to use remedial
authorities and contracting methods to accelerate response at an NPL site.
This may be accomplished through the implementation of an early action operable
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OSWER Directive ö9200.2—02 — 6 —
unit ROD (for example, to remove drums) and the use of streamlined remedial
contracts. Early actions may make it possible to provide earlier protection of
public health and the environment, and the actions may also help provide
information that may be used to improve the phasing and design of later
remedial stages.
Site managers can break actions into distinct portions, which are known as
“operable units,” to achieve quicker response. An operable unit is “a discrete
part of the entire response action that decreases a release, threat of release,
or pathway of exposure” (NCP section 300.6; see also proposed NCP Subpart A).
Operable units can be designated to accelerate remediation for portions of the
site, but all operable units conducted as remedial actions must have RODs.
Separate enforcement agreements may be reached for individual operable units.
Expediting Remedial Actions. After signing a ROD, accelerated responses
may be implemented under remedial authority. The most obvious method to
accelerate remedial action is to initiate construction sooner, i.e. , speed up
the planning and design process. Once this is achieved, contracting and
construction options can be explored to best enhance site remediation. This
section briefly describes techniques for expediting remedial construction.
(The techniques are covered in greater detail in OSWER Directive •9355.5—02/FS,
“Expediting Remedial Construction.”) These techniques are applicable to all
Superfund projects; however, they are geared toward small (less than $5
million), well defined projects using proven technologies.
Remedial Management Strategy. The remedial management strategy (R1’IS) is a
systematic approach used to identify and establish the preferred contracting
strategies to be used in the implementation of a remedial action. The
objective is to look at each of the operable units that are part of the remedy
described in the ROD and lay out a strategy for construction that meets all of
the constraints imposed on the project. The RIIS establishes the Overall course
of action for the project. It is at this point that decisions are made about
phasing portions of the project, fast—tracking design and construction,
employing limited designs for specific elements, or utilizing alternative
procurement methods.
Phasing Remedial Design and Construction. An analysis of remedial
design/remedial action (RD/RA) project elements results in the determination
that some can be effectively phased or time—sequenced to accelerate them
through the design and remediation process. Phasing may achieve an overall
fast—track schedule and thereby mitigate the continuing threat of the site to
the environment and public safety. Large, complex projects (or operable units)
may be broken down into smaller, more manageable response elements. Elements
may be worked in unison, but each individual element has its own schedule and
moves at its own rate through the remediation process.
Fast—Tracking RD/RI. Fast—tracking might be considered a subset of
phasing. Where phasing breaks large complex projects into smaller more
manageable units, fast—tracking is a method to accelerate the implementation of
those individual elements. There are several techniques that can be used to
fast—track RD/BA:
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0S ER Directive #9200.2.02 - 7 -
o Expedite RD Discretionary steps in the RD process may be eliminated
or shortened. Site managers must realize, however, that short-
cutting the process involves some risk. For example, deciding to use
only data collected during the RI/FS for design is one method of
expediting. However, the design risks being delayed if the RI/FS
data turns out to be marginal or incomplete.
o Use of Removal Authority. As mentioned in the section on Removal
Approaches to Remedial Actions, removal contracting methods and
remedial funding can be used to implement RD/RA on an accelerated
basis.
o Optimize RD Optimization is the rearrangement of the sequence in
which RD elements are performed to enhance the overall schedule. For
example, the site access portion of a design could be completed and
construction initiated while the rest of the design is still on-
going.
o Fast-Track Construction. Many large projects can be divided into
separate stages of construction. This is generally accomplished by
awarding each stage of work for construction as soon as the design
effort on that particular stage of work has been completed. This
approach has the advantage that the project will be started and
completed sooner than would be possible if it were necessary to wait
until all design work had been completed. Another aspect of fast-
track construction is ordering items that require long lead-times in
advance of the time they will be needed on the job.
Preplaced and Pre-Qualifled Contracts. One method to expedite initiation
of remedial construction is to use preplaced contracts or pre-qualified
contractors. There are several options currently available for use. These
methods require approximately 30-60 days to initiate construction activities by
eliminating the solicitation and audit requirements of site-specific contracts,
thus reducing the time from design completion to construction initiation.
The U.S. Army Corps of Engineers (USACE) has developed methods to
expedite the initiation of remedial action at Superfund sites by implementing
two innovative contracting strategies: Preplaced Remedial Action (PRA) and
Rapid Response (RR) contracts. Both may be used for projects when delaying the
remedial action for normal procurement actions may result in detrimental
effects on human health or the environment. PRA contracts are structured to
implement full-scale remedial actions. RR contracts are for demolition
actions, closures, point source contamination control, and site stabilization.
They are limited to $2 million per delivery order and may be used for projects
where it is necessary to abate, stabilize, mitigate, or eliminate hazardous or
contaminated materials or structures.
The Pre-qualified Offerors Procurement Strategy (PQOPS), when completely
in place, will provide a list of prequalified contractors that have the
capability of performing a specified technology ( i.e. , incineration, fixation).
All contractors on the list will have been technically evaluated and deemed
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OST,ER Directive u9200.2-02 - 8 -
qualified to perform the specified work. However, they are limited to
providing the equipment for a specific technology and do not include broad
response support (e.g., site access, excavation, site closure) Co fully imple-
ment the remedy. The transportable incineration system (TIS) PQOP is in place
and the fixation/solidification system (FSS) PQOP will be in place during
Fl 90.
3.0 WHAT ARE THE ENFORCEMENT ASPECTS OF ACCELERATED RESPONSE ?
The Superfund Management Review placed great emphasis on the prompt use
of enforcement authority at NPL sites. At sites where there is accelerated
response, enforcement and program staff must anticipate each other’s needs.
Good communications are essential. For example, those evaluating a NPL site,
who discover the probable need for accelerated action, need to contact
enforcement personnel promptly so that this change can be incorporated into the
enforcement strategy for the site. Conversely, enforcement staff must appre-
ciate how delays in performing enforcement activities may affect timing of size
response.
Site managers must take advantage of enforcement authorities whenever
possible. The enforcement authorities that are available to EPA include strong
liability provisio.ns. administrative order authority, judicial enforcement
authority, and the authority and funding to take direct action to clean up
sites and subsequently recover costs. When developing an accelerated response
action, the following enforcement activities should be taken into account.
Enforcement Strate v
Enforcement personnel should take a site-specific approach when
developing enforcement strategy. The approach should generally cover the izers
discussed here ( e . , PR? search, notice to PRPs and States). If enforcemen:
authority is not used, site managers must document why.
PR? Search
If the site is on the NPL. an expedited PRP search can be conducted by
focusing on owners and operators that are known and generators that are readily
identifiable. PR? searches are discussed in detail in the “Enforcement Projec:
Management Handbook,” OSWER Directive *9837.2 (July 1989); see also the “PRP
Search Manual,” OSWER Directive #9834.3-lA and the “PRP Search Supplemental
Guidance for Sites in the Remedial Program,” OSWER Directive *9834.3-2A.
Notice to FRPs
Where possible, it is usually advantageous to notify PRPs of their
potential liability before transmitting to the PRPs a draft administrative
order on consent. Moreover, except for emergencies, PRPs should be notified
prior to issuance of a unilateral administrative order. If PRPs have not been
notified, a notice letter should be issued. For additional information on
enforcement activities, see Section 6.0, Bibliography, for a listing of
applicable OSWER Directives.
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OSWER Directive 920O.2—02 — 9 —
Notification of the State
Prior to issuing an administrative order, EPA must notify the State. In
situations where there is little time available before initiation of site
activity 1 the State may be notified by telephone, followed by written
confirmation.
Administrative Order on Consent (AOC )
If the response is an accelerated removal action and PRPs are willing to
perform the action, the PRPs’ conduct of an accelerated response should be
pursuant to an AOC (CERCLA §106). If the accelerated response follows a ROD
and is a remedial action, PRP conduct of the action should be pursuant to a
consent decree (CERCLA §122). Moreover, settlements that include owners must
include an agreement for access to the site. If, during negotiations, site
conditions dictate the need for immediate response, the site manager should
discontinue negotiations and initiate on—site response. Whenever appropriate,
a unilateral order should be issued to allow EPA to seek treble damages and/or
possibly convince the PRPs to take over the response effort.
Unilateral Administrative Order (AQU )
Oenerally, when negotiations become protracted or in critical situations
(including some emergencies where time allows), EPA policy is to proceed with a
CERCLA §106(a) ACU to viable PRPs before Fund activation. There are excep-
tions, such as: sites where there is an immediate need to respond; where PR?
liability is very uncertain; where there are unique technical problems; or
where there are problems with the technical capability of the PEP to conduct
the removal action.
4.0 WHAT ADDITIONAL FACTORS SHOULD BE CONSIDERED ?
4.1
The Superfund Amendments and Reauthorization Act of 1986 (SARA) required
that on—site remedial actions comply with applicable or relevant and appro-
priate requirements (ARARs) of other federal and state environmental laws.
Although CERCLA only requires compliance with AP.ARs for remedial actions, the
current NCP requires removals to comply with Federal ABARS to the extent
practicable. EPA policy wider the proposed NC? ( 3O0.415) requires removal
actions to comply wj,th State and Federal ARARs to the extent practicable.
Until this policy is promulgated by regulation, compliance with State ARARs
during removal actions must be justified based upon protectiveness. Factors
used in determining whether removal compliance with ARAR8 is practicable
include: (1) the urgency of the situation, and (2) the scope of the removal
action to be conducted, which includes consideration of the statutory limits
for removals. Off—site actions must always comply with applicable require—
rnents. (For a statement of EPA’s off—site policy, see 50 45933, November 5,
1985, as revised November 13, 1986 in OSWER Directive •9834.11.) Remedial
actions, including those discussed in the section on p. 5, Removal Approaches
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OSWER Directive #9200.2—02 — 10 —
to Remedial Actions, must comply with all ARARs identified in the ROD, unless
an AR.AR is waived.
Waivers of ARARs (CERCLA section 121(d)(4)) also may be used for removal
as well as remedial actions where they apply. See the document “CERCLA
Compliance With Other Laws Manual” (OSWER Directive #9234.1—01) for additional
information.
4.2 Public Particinptjon
Informed public involvement in the decision—making process is a key
element in the Superfund program. The Superfund Management Review identified
that the public wants greater and earlier involvement in the process. As a
steward of the environment, EPA must be fully responsive to the concerns of the
public if it wishes to retain the public’s confidence.
Before a ROD can be signed for an early remedial action, a proposed plan
must be circulated, and a 30—day public comment period must be held. An
opportunity for public hearing must also be provided. The current NCP
provides for a 21—day comment period. However, the proposed NCP provides for a
minimum of 30 days for public comment. Adequate information on the proposed
action and a limited number of alternatives must also be available to the
public along with the proposed plan. This information may, however, be
presented in any type of document, including but not limited to an RI/FS or a
focused feasibility study.
Public participation requirements for removal actions are set forth in the
proposed NCP sections 300.415 and 300.820, and the “Superfund Removal
Procedures Manual,” Chapter III—F.6. Remedial action requirements are set
forth in the proposed NCP sections 300.430 and 300.435, and the Community
Relations Handbook.
4.3 Alternative Tecbnolpzjes
As noted in the Superfund Management Review, EPA should continue to
encourage the employment of alternative technologies to treat hazardous
substances, pollutants, or contaminants at Superfund sites. It is important
that technologies selected for removal actions at NPL sites be consistent with
planned remedial work and contribute to permanent remedies. OSWER Directive
#9355.0—26 (February 1989) reaffirms the use of treatment technologies at
Superfund sites and summarizes guidance documents and activities that encourage
and support the use of innovative treatment technologies.
Also, 0SW Directive #9380.3—01 (July 12, 1989) describes a treatability
data base which is being developed by the Office of Research and Development
CORD) to aid in expediting technology selection on a site—specific basis for
the removal and remedial programs.
4.4 Post—Removal Site Control (PRSC )
Provisions for PRSC must be made before removal action initiation. PRSC
may be a removal or remedial response under the statute. For remedial actions
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OSWER Directive #9200.2—02 — 11 —
a state contract or Superfund cooperative agreement must be in place prior to
remedial action initiation in order to assure any State operation and main-
tenance responsibilities. Information and guidelines on PRSC may be found in
the proposed NCP section 300.415 and the “Superfund Removal Procedures
Manual,” Chapter 111—11.2.
4.5 Documentation
The various offices responsible for NPL sites in the Regions should work
together to ensure that documentation for sites is adequate to support
decision—making and, if appropriate, cost recovery. This is very important at
every Superfund site, but it will be especially important if a site is selected
for accelerated response. The response action must be sufficiently documented
in order to fully justify the rationale for the Region’s actions; that is, to
explain why a certain act ivity at an NPL site is being conducted on an
accelerated basis and to specify the authority under which the response is
being conducted. See NCP section 300.69, and “Interim Guidance on Adminis-
trative Records for Selection of C CLA Response Actions,” OSWER Directive
#9833 .3A.
It is EPA’s policy to develop decision documents for responses at sites in
order to support the decision and remedy selection and to completely document
costs to support cost recovery. Documentation of cleanups must also show that
human health and the environment have been protected along all possible path-
ways of exposure. If a removal response cannot provide sufficient documen-
tation to support the eventual deletion of the site from the NPL, then the site
may be completed as a remedial action. Every removal action must demonstrate
how it will contribute to any long—term remedial action to be taken at the
given site.
5.0 ROW MA! SUPERFUND WORK AS “ONE PROGRM ? ”
5 • 1 Pxomotinz C unication
In order to foster the development of Superfund as “one program,” EPA must
encourage an increased level of cooperation among the various program offices
that administer and support Superfund. The Superfund Management Review states
that many of the difficulties Superfund has encountered in the past may be
traced to the lack of proper communication between programs. We must institute
procedures to improve coordination of site activities among the different
Superfund program offices, i.e. , pre—remedial, remedial, removal, and enforce-
ment, to provide the internal support necessary for implementing Superfund as
“one program.” It is also important to ensure that EPA coordination with
appropriate authorities located outside the Superfund program (e.E. , Agency for
Toxic Substances and Disease Registry (ATSDRI) takes place in a consistent
manner.
Information on sites should be shared freely among programs, and changes
in site status likewise should be co mminicated to all affected offices. For
example, the removal staff may be asked by the remedial staff to conduct a
removal site evaluation whenever a new site is proposed for inclusion on the
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OSWER Directive #9200.2—02 — 12 —
NPL, and enforcement staff may work with pre—renledjal staff on identification
of PRPs. Pre—remedjal reviewers should share with remedial and removal staff
any PA/SI or Hazard Ranking System (HI(S) information that would indicate a need
for early action. It is important for accelerated responses that technical and
professional concerns of all four program offices about NPL sites be identified
and addressed early in the response process.
5.2 Training
Superfund managers should encourage cross—training for pre—remedial,
remedial, enforcement, and removal staff to allow SAris, RPMs, and OSCs to learn
how the entire Superfund response system works. It is important for site
personnel to have a working knowledge of all programs. For example, pre—
remedial and remedial staff should understand the capabilities of the removal
program so that they can help ensure that removal action is taken where
appropriate, and removal staff should know what remedial criteria will be
considered before sites can be deleted from the NPL. Regional managers should
encourage rotational assignments.
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OSWER Directive #9200.2—02 — 13 —
6.0 BIBLIOGRApHY
Guidance
“A Management Review of the Superfund Program,” Report from U.S. EPA,
Washington, D.C. (6/89)
“Immediate Actions to Implement the Superfund Management Review,”
Memorandum from F. Henry Habicht to Regional Administrators (9/18/89)
OSWER Directive No. 9200.2—01, “Unaddressed NPL Sites,” Memorandum from
Henry L. Longest, II (7/6/89)
OSWER Directive No. 9355.0—25A, “Use of Removal Approaches to Speed Up
Remedial Action Projects,” Memorandum from Jonathan Z. Cannon (7/6/89)
OSWER Directive No. 9355.0—26, “Advancing the Use of Treatment
Technologies for Superfund Remedies” (2/89)
OSWER Directive No. 9355.5—02/FS, “Expediting Remedial Construction”
(10/89)
OSWER Directive No. 9380.3—01, “Treatablifty Studies Contractor Work
Assignments,” Memorandum from Henry L. Longest, II (7/12/89)
0SW Directive No. 9833.0, “Guidance on the Use and Issuance of
Administrative Orders Under Section 106” (9/8/83)
OSWER Directive No. 9833.1, “Issuance of Administrative Orders for
Immediate Removal Actions” (2/21/84)
OSWER Directive No. 9833.3A, “Interim Guidance on Administrative Records
for Selection of C CLA Response Actions” (3/1/89)
OSWER Directive No. 9834.2, “Timely Initiation of Responsible Party
Searches, Issuance of Notice Letters, and Release of Information”
(10/9/85)
OSW’ER Directive No. 98343—2A, “PRP Search Supplemental Guidance for Sites
in the Remedial Program” (6/16/89)
OSWER Directive No. 9834.4—A, “Guidance on Use and Enforcement of CERCLA
Information Requests and Administrative Subpoenas” (8/25/88)
0SW Directive No. 9834.10, “Interim Guidance on Notice Letters
Negotiations, and Information Exchange — 53 5298, February 23, 1988”
(10/19/87)
OSWE Directive No. 9834.11, “Revised Procedures for Implementing Of f—
Site Response Actions,” Memorandum from J. Winston Porter to EPA Regional
Administrators (November 13, 1987)
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OSWER Directive #9200.2—02 — 14 —
OSWER Directive No. 9835.4, “Interim Guidance: Streamlining the CERCLA
Settlement Decision Process” (2/12/87)
Manuals -
OSWER Directive No. 9230.O—03B, Conm unity Relations Handbook (1988)
OSWER Directive No. 9234.1—01, C CLA Compliance With Other Laws Manual
(8/8/88)*
OSWER Directive No. 9360.O—03B, Su erfund Removal Procedures Manual ,
Revision No. 3 (2/88)
OSWER Directive No. 9834.3—lA, PRP Search Manual (8/87)
OSWER Directive No. 9837.2, Enforcement Project Management Handbook (7/89)
Statutes and Regulations
The Comprehensive Environmental Response. Compensation, and Liability Act
of 1980 as amended, 42 U.S.C. 9601—9657
The National Oil and Hazardous Substances Pollution Contingency Plan,
40 CFR Part 300 (11/20/85)
The National Oil and Hazardous Substances Pollution Contingency Plan,
40 CFR Part 300, 53 Federal Register 51394—51520 (12121/88)*
* draft document
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Procedur s for Completion and Deletion
of NPL Sites: Five Year Review
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,iIO Sr .
j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
+ 4( pØ ff
2 OSWER Directive 9320.2—3B
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
SUBJECT: Update to the “Procedures for Completion and
Deletion of National Priorities List Sites”
Guidance Document Regarding the Performance of
Five-Year Reviews
(Superfund Management Review: R mine at No. 2)
FROM: Henry L. Longest II, Director j /
Of fice of Emergency and Remedi sp nse
Bruce M. Diamond, Director
Office of Waste Programs En rcement
TO: Director, Waste Management Division
Regions I, IV, V, VII, and VIII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Regions III, VI, and IX
Director, Hazardous Waste Division
Region X
PURPOSE
This memorandum incorporates into the “Procedures for
Completion and Deletion of National Priorities List Sites”
guidance document (OSWER Directive 9320.2-3A) EPA’s policy to
conduct at least one Five-Year Review prior to deleting sites from
the National Priorities List (NPL). This memorandum: (1)
implements Recommendation No. 2 contained in the Administrator’s
Management Review; (2) is a necessary follow—up to the October 30,
1989 Jonathan Cannon, Acting Assistant Administrator, policy
directive to EPA Regional Administrators which explains which
sites will, require five-year reviews, and how the policy will
affect deletions; and (3) identifies how EPA will administratively
amend the deletion process to account for this policy directive.
BACKGROUND
On October 30, 1989, the Acting Assistant Administrator for
the Office of Solid Waste and Emergency Response (OSWER) issued a
policy directive concerning the performance of CERCL I 121(c) Five-
year reviews and the relationship of such reviews to the deletion
of sites from the NPL. This policy directive noted that EPA will
ensure that five—year reviews are conducted for all remedial
actions which result in hazardous substances, pollutants, or
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contaminants remaining at the site above levels that allow for
unlimited use and unrestricted exposure. This means that EPA will
conduct reviews of a remedial action unless the site has been
cleaned to at least health—protective levels and such levels allow
for unlimited use and unrestricted exposure. Consequently, EPA
will conduct five—year reviews of all remedies requiring any access
or land-use restrictions or control, including remedies that attain
health—protective levels for the current use, but which include
restrictions on activities due to limits on exposure. Reviews will
begin no more than five years after the initiation of a remedial
action. The directive set out the policy that a site subject to
five-year reviews should generally not be deleted from the NPL
until at least one such review has been conducted following
completion of all remedial actions at a site (except operation and
maintenance).
Although SARA provides that CERCLA Section 121 (including 121
(C)) applies only to actions resulting from RODs signed post-
SARA, the policy directive also notes that EPA believes as a
matter of policy that it would be inappropriate to distinguish
between pre- and post—SARA RODs in determining whether to conduct
five—year reviews. Furthermore, also as a matter of policy, EPA
will examine previously deleted sites to assess the
appropriateness of conducting five—year reviews for those remedial
actions which result in hazardous substances, pollutants, or
contaminants remaining above levels that allow for unlimited use
and unrestricted exposure. The purpose of such an examination
would be to determine whether such remedies remain protective.
EPA is also currently developing guidance on the nature and
extent of five—year reviews. EPA will revise and reissue the
guidance on deletion/completion of NPL sites upon the issuance of
the guidance on five—year reviews, which is expected in 1990.
IMPLEMENTATION
The following update of the April 1989 OSWER Directive
9320.2-3A, “Procedures for Completion and Deletion of NPL Sites”,
provides the administrative requirements which should be followed
prior to deletion of sites from the NPL as a result of EPA’s
October 30, 1989 Five—Year Review policy directive. Effective
immediately, these procedures should be followed for all sites
affected by the Five—Year Review policy. Any questions regarding
the attached update may be directed to Ed Hanlon of OSWER’s
Hazardous Site Control Division (HSCD) at FrS: 475—9753. Until
the completion/deletion guidance is fully revised and reissued,
please contact Allen Dotson, HSCD, at FTS: 382—5755, to determine
the current policy on five-year reviews.
Attachment
CC: Regional Superfund Branch Chiefs
Offices of Regional Counsel — Regional Branch chiefs
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Attachment
12/29/89 aendment to the April 1989 OSWER Directive 9320.2—3A.
! Procedures for Coanletion and Deletion of
National Priorities List Sites (NPL ”
1. Disclaimer. “Notice.” amendment :
a) Page ii. Add the following as the second paragraph:
“The policies set out in this memorandum are intended
solely for the guidance of Government personnel. They
are not intended, nor can they be relied upon, to create
any rights enforceable by any party in litigation with
the United States. EPA officials may decide to follow
the guidance provided in this memorandum, or to act at
variance with the guidance, based on an analysis of
specific site circumstances. The Agency also reserves
the right to change this guidance at any time without
public notice.”
2. Chanter 1. “Introduction.” Amendment :
a) Page 2. Add the following as the fifth paragraph under
Introduction :
“EPA will ensure that five—year reviews are conducted at
all sites at which a selected remedial action results in
hazardous substances, pollutants, or contaminants
remaining at a site above levels that allow for unlimited
use and unrestricted exposure. EPA will generally not
delete a site for which five-year reviews are required
until one such review has been conducted following
completion of all remedial actions at a site (except
operation and maintenance). EPA Headquarters also
intends to revise and reissue this guidance (OSWER
Directive 9320.2-3A, as amended December 29, 1989) when
the final policy on when and how to conduct five—year
reviews is released. Until the reissuance of this
completion/deletion guidance, EPA Regions should consult
with EPA Headquarter’s Hazardous Site Control Division to
determine when and how the five—year reviews should be
considered and conducted •“
3. Chapter 2. “Site Completion.” Amendments :
a) Page 3. Add the following as the second paragraph under
the sub-heading: “Final Operable Unit Remedial Actions”:
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“For Fund—financed remedial actions, the lead and
support agencies should conduct a joint inspection at
the conclusion of construction of the remedial action
and concur through a joint memorandum that (a) the
remedy has been constructed in accordance with the ROD
and with the remedial design, and (b) a period for
evaluating the operation of the remedy commences at that
time, and should continue until the completion of any
activities necessary to ensure that the remedy is fully
operational and functional. Once the remedy is
considered operational and functional by the party
contracting for construction, a Remedial Action Report
should be prepared by the party contracting for
construction to officially provide its assurance that
the work was performed within desired specifications,
and is considered operational and functional. The lead
and support agencies should then conduct a joint
inspection and execute a joint memorandum accepting the
Remedial Action Report.”
b) Page 3. Change the second sentence under the subheading
“No Action Sites” as follows:
“It does not include sites with RODs requiring only
monitoring or institutional controls; these types of
sites will be considered “Limited Action Sites” which
will require five—year reviews to ensure protection of
human health and the environment”.
C) Page 3. Add the following to the third sentence under
the subheading “No Action Sites”:
“...have been addressed (e.g., O&X assurances, need for
five—year reviews, and institutional controls) .“
d) Page 5. The following new text will supersede the old
text of the “ LTRA Sites ” subsection:
“ Long Term Response Action (LTRM Sites
An “Interim Close Out Report for LTRA Sites”,
prepared by the Region and approved by the RA, will be
required of all LTRA sites. This report will contain
final information for all completed operable units at
the site and describe the LTRA activities to be
performed, the cleanup levels to be achieved for the
LTRA portion of the site, and any five—year review
responsibilities (as discussed in the next section).
This report will act as the determining factor for
designating sites as LTRAs on the NPL and for internal
Superfund tracking. In addition, once a ground or
surface water restoration LTRA operable unit is operating
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as designed, States may assume responsibility for
operation of the LTRA.
The “Interim Close Out Report for LTRA Sites 1 ’ vii].
be amended when cleanup levels are achieved to include
final information for the LTRA operable units of the
site in order to satisfy completion requirements. The
“Interim Close Out Report for LTRA Sites” and the
amendment together will constitute the final Close Out
Report for the site. The LTRA site will then be
recategorized on the NPL as either a “Site Awaiting
Deletion” or a “Five—Year Review Site””
e) Page 5. The following new text will be added as a
separate subsection after the “ LTRA Sites ” subsection:
“ Five-Year Review Sites
An “Interim Close Out Report for Five-Year Review
Sites”, prepared by the Region and approved by the RA,
will be required of all Five-Year Review sites (this may
incorporate by reference interim or final Close Out
Reports already prepared). This report will contain
final information for all completed operable units at the
site and describe the Five-Year Review activities to be
performed. This report will also act as the determining
factor for designating sites as Five—Year Review sites on
the NPL and for internal Superfund tracking. This report
will be amended when at least one five—year review has
been conducted following the completion of the remedial
action (except operation and maintenance), and any
appropriate actions have been taken to ensure that the
site remains protective of human health and the
environment. The “Interim Close Out Report for Five—Year
Review Sites”, and the amendment, together will
constitute the final Close Out Report for the site.
States may conduct five—year reviews under/pursuant to
Cooperative Agreements or Superfund State Contracts with
EPA, arid submit five-year review reports to EPA.
For LTRA’s such as bioremediation, flushing, and
groundwater pump and treat where health—based levels may
not be achieved on site for an extended period of time
during and/or after site remediation, EPA will conduct
five—year reviews from the date on which the first
contract is awarded for work to install, construct, or
implement the LTRA operable unit. Even at sites that
are expected to achieve health-based levels at the
completion of remedial action, EPA will, as a matter of
policy, assure the conduct of five—year reviews when the
remedial action will require more than five years to
complete.
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An Interim Close Out Report for Five Year Review
Sites would be required, for example, for a landfill
closure site which is not an LTRA site. However, one
Interim Close Out Report may be prepared for those sites
which are designated both as an LTRA as well as a five—
year review site. In these cases, the Interim Close Out
Report will be amended twice, as follows: (a) when at
least one five—year review has been conducted following
the completion of the remedial action (except operation
and maintenance), and any appropriate actions have been
taken to ensure that the site remains protective of human
health and the environment; and (b) when the LTRA cleanup
levels are achieved, to include final information for the
LTRA operable units of the site in order to satisfy
completion requirements.”
4. Chaoter 3. “The Close Out ReDort.” ?menaments
a) Page 7. Add the following separate category (as
component 6) to the listed components which are
necessary to be addressed in the Close Out Report:
“6) Five-Year Review
o Statement explaining: (a) that at least one
five—year review has been conducted following
completion of all remedial actions at the site
(except operation and maintenance), and that any
appropriate actions have been taken to ensure
that the site remains protective of human health
and the environment; or (b) why no five—year
review was required. (EPA Headquarters will
revise and reissue this completion/deletion
guidance when the final policy on when and how to
conduct five—year reviews is released. Until the
reissuance of this guidance, EPA Regions should
consult with EPA Headquarter’s Hazardous Site
Control Division to identify when and how the
five-year reviews should be considered and
conducted.)
o Assurance that, where appropriate, an acceptable
and detailed workplan is in place for the
performance of future five-year reviews, and is
sufficient to determine whether the
protectiveness of the remedy(s) for each operable
unit, and of the site as a whole, is maintained.
(A five—year review workplan may be incorporated
into the operation and maintenance assurance
agreements and workp]ans.)
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b) Page 8, Exhibit 2. Add the following item to the
“Contribution to Close—Out Report” section across from
the “Remedial Action” cleanup activity:
“0 Five—year review plan, where appropriate”
5. Chat,ter 4. “NPL Deletion Criteria.” Amendment :
a) Page 10. Add the following paragraphs after the third
deletion criteria:
“In addition to the above, for all remedial actions
which result in hazardous substances, pollutants, or
contaminants remaining at the site above levels that
allow for unlimited use and Unrestricted exposure, it is
EPA’s policy that sites should generally not be deleted
from the NPL until at least one five—year review has been
conducted following completion of all remedial actions at
a site (except operation and maintenance), any
appropriate actions have been taken to ensure that the
site remains protective of public health and the
environment, and the site meets EPA’s deletion criteria
as outlined above. EPA must also assure that five-year
reviews will continue to be conducted at the site until
no hazardous substances, pollutants, or contaminants
remain above levels that allow for unlimited use and
unrestricted exposure. States may conduct five—year
reviews under/pursuant to Cooperative Agreements or
Superfund State Contracts with EPA, and submit five-year
review reports to EPA.
An exception to this requirement involves situations
where a Consent Decree contained language specifically
committing EPA to delete a site from the NPL upon
completion of certain response activities. In such
cases, EPA Regions must consult with EPA Headquarters
prior to initiation of any deletion activities. However,
such an exception would apply only to the general policy
of not deleting sites before completion of the first
five—year review, not to the requirement to conduct
review.. EPA would still need to assure that five—year
revii v. will be conducted at the site. Given the October
30, 1989 policy directive from the Acting Assistant
Administrator for OSW’ER regarding the performance of
five-year reviews and their relationship to the deletion
process, Consent Decrees should now require one five-year
review following the completion of the remedial action
(except operation and maintenance) before deletion.”
6. chaDter 5. “The Deletion Process •“ Amendments :
a) Page 10. Revise the first sentence of the first
paragraph as follows:
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“The deletion process may begin after approval of the
Close Out Report by the RA, and after RA and/or the
State’s approval of at least one five—year review at
those sites which require five—year reviews.”
b) Page 11, Exhibit 3. Add the following step immediately
under the “Approved Close Out Report” step:
“Where Appropriate, Conduct At Least One Five—Year
Review”
C) Page 12. Add the following immediately under “Close Out
Report” in the suggested list of documents for the
deletion docket:
“Initial Five—Year Review report, where appropriate”
d) Page 13. Add the following separate bullet item to the
“Supplementary Information: Item IV — Basis for Intended
Site Deletion(s)” section, immediately under the
description of O&)! procedures:
“Description of the results of the initial five—year
review, where appropriate, as well as reasoning for the
need for future five—year reviews, and plans for
performance of such reviews, in accordance with EPA’s
requirements for protectiveness at the time of each
future review.”
7. A endix A. “ComDletion Process Diaarams.” Amendment :
a) Pages A-i through A-4. Add the following immediately
above the “NPL Deletion” item in the “Completion
Scenario” charts for Remedial Sites, LTRA Sites, No
Action Sites, and Removal Sites:
“Where Appropriate, Conduct At Least One Five-Year
Review”
8. ADDendix B. Sami,le Close Out ReDort.” Amendment :
a) Page B—6. Add the following separate_chapter, as the
new chapter V, prior to the “ PROTEc’riv HESS ” Chapter, to
provide a summary of the Five—Year Review which, if
appropriate, was conducted, and what actions, if any,
were taken as a result of that Review, as follows:
“V. SU1 XARY OF FIVE YEAR RzvL W STATUS
Consistent with the requirements of the October 30,
1989 policy directive from the Acting Assistant
Administrator for OSWER which describes EPA’s general
policy of not deleting sites before completion of the
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first five year review following completion of all
remedial actions at a site (except operation and
maintenance), a five year review was completed and
signed by the EPA Region IX Office on ________. Based
on the findings of this five year review, EPA and the
State of California have determined that all remedial
actions conducted at the site remain protective of
public health, welfare, and the environment.
EPA Region IX entered into a Superfund State
Contract with the State of California on _______ to
assure the performance of future five—year reviews at
this site by the State. An acceptable and detailed
workplan is in place for the performance of future five-
year reviews. This workplan has been incorporated into
the operation and maintenance plan already in place. If
necessary, it will be revised at the time of each five-
year review.”
9. A Dendix C. RSamile Notice of Intent To Delete. amendments :
a) Page C-3. Add the following paragraphs after the third
deletion criteria under Chapter II:
“In addition to the above, for all remedial actions
which result in hazardous substances, pollutants, or
contaminants remaining at the site above levels that
allow for unlimited use and unrestricted exposure, it is
EPA’S policy that sites should generally not be deleted
from the NPL until at least one five—year review has been
conducted following completion of all remedial actions at
a site (except operation and maintenance), any
appropriate actions have been taken to ensure that the
site remains protective of public health and the
environment, and the site meets EPA’s deletion criteria
as outlined above. EPA must also assure that five—year
reviews will continue to be conducted at the site until
no hazardous substances, pollutants, or contaminants
remain above levels that allow for unlimited use and
unrestricted exposure. States may conduct five—year
reviews under/pursuant to Cooperative Agreements or
Superfund State Contracts with EPA, and submit fiVL year
review reports to EPA.
An exception to this requirement involves situations
where a Consent Decree contained language specifically
committing EPA to delete a site from the NPL upon
completion of certain response activities. In such
cases, EPA Regions must consult with EPA Headquarters
prior to initiation of any deletion activities. However,
such an exception would apply only to the general policy
of not deleting sites before completion of the first
five—year review, not to the requirement to conduct
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reviews. EPA would still need to assure that five—year
reviews will be conducted at the site. Given the October
30, 1989 policy directive from the Acting Assistant
Administrator for OSWER regarding the performance of
five-year reviews and their relationship to the deletion
process, Consent Decrees should now require one five—year
review following completion of the remedial action
(except operation and maintenance) before deletion.”
b) Page C-3. Add the following as the new procedure 1.
under Chapter III:
“1. EPA Region II entered into a Superfund State
Contract with the State of New Jersey to conduct five-
year reviews at this site. New Jersey conducted the
first five—year review on _______. EPA and the State
find that the remedy continues to provide adequate
protection of human health and the environment.
C) Page C-5. Add the following after the sentence
beginning with “A five year...” in the paragraph
beginning with “The institutional controls...”, and
delete the existing last sentence which begins “That
Program...”:
“EPA Region II entered into a Superfund State Contract
with the State of New Jersey to conduct five—year
reviews at this site. New Jersey conducted the first
five-year review on _______. EPA and the State find
that the remedy continues to provide adequate protection
of human health and the environment.
An acceptable and detailed workplan is in place for
the performance of future five—year reviews. This
workplan has been incorporated into the operation and
maintenance plan already in place, and has been
sufficiently prepared to allow the EPA and the State of
New Jersey to determine whether the protectiveness of
the remedy for the site will be maintained over time.
If necessary, it will be revised at the time of each
five—year review.”
10. ADDendIX K. “Sami,le Notice of Deletion. amendment :
a) Page E-1. change the last sentence of the STJXNARY
section as follows:
“Moreover, EPA and the State of _______ have determined
that remedial actions conducted at the site to date
remain protective of public health, welfare, and the
environment.”
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Interim Guidance on Addressing
Immediate Threats at NPL Sites
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,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON. D.C 20460
JAN 30 OSWER Directive No. 9200.2-03
OcFICE O
SOLID WASTE AND EMERGENCY RESDONSE
MEMORANDUM
SUBJECT: Interim Guidance on Addressing Immediate Threats at NPL Sites
(Superfund Mana ement Review: ecommendatjon No. 22)
FROM: Don R. Clay
Assistant Administrator
TO: Director, Waste Management Division
Regions I, IV, V 1 VII, VIII
Director, Emergency and Remedial Response Division
Region II
Director Hazardous Waste Management Division
Regions III, VI
Director, Toxic and Hazardous Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
Director, Environmental Services Division
Regions I, VI, VII
Regional Counsel, Regions I-X
PURPOSE
The purpose of this memorandum is to transmit Agency guidance on
addressing immediate threats at National Priorities List (NPL) sites.
BAQCGROUND
As a result of the Superfund Management Review, the Administrator
committed that by September 30, 1990, all NPL sites would be free from
immediate threats. Subsequently, this commitment became a Presidentjal leve1
‘Management By objectjve . The Office of Solid Waste and Emergency Response
(OSWER) formed a workgroup to develop guidance to assist the Regions in taking
expedited approaches to site cleanups and in making NPL sites ‘safer.” On
December 15, 1989, EPA issued the guidance “Accelerated Response at National
Priorities List Sites” (OSWER Directive #9200.2-02) to address expediting
cleanup. The question of making NPL sites “safer” is being addressed by the
following directive, which provides procedures to help the Regions identify,
document, and eliminate to the extent possible, immediate threats at proposed
and final NFL sites. This document on addressing immediate threats and the
previ3us OSWER Directive #9200.2.02 on accelerated response should be used
together as companion pieces.
P’i uud o ’i Ricycl-d Pope
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11ff L TATI0N
Specifically, the attached OSWER directive requires that you:
o Establish Region-wide procedures to routinely review all NP!. sites
(the guidance outlines examples of procedures);
o By September 30, 1990, review all final NP!.
immediate threats, document the findings of
action at all NP!. sites that have immediate
provides documentation statements);
o Thereafter, review and document the status of every final NP!. site at
least once every two years, at minimum reviewing half of the final
NPL sites one year. the other half the next. The documentation
memorandum will be due on January 1 of each year starting with
January 1. 1992;
o Conduct an initial removal site evaluation at each newly proposed NPL
site within three months of the date of proposal (the guidance
explains some exceptions);
o Take action at all proposed and final NP!. sites that have immediate
threats; and
o Complete an environmental indicator form for all removal actions
completed at NPL sites this fiscal year.
This directive is effective immediately and Regions should begin
developing procedures and reviewing their sites. However, this is being Issued
as interim guidance to consider any comments you may have. For example, you
may wish to suggest a due date different than January 1 (see third bullet
above). Please send your comments to: Hans Crump. Acting Director, Emergency
Response Division (OS-210), EPA, 401 N Street SW, Washington, D.C. 20460 by
March 1, 1990.
If you have any questions Hans Crump may be reached at FrS 475-8720, or
you may call Scott Maid at FTS 382-4671.
Attachment
cc: Henry Longest II, OERR Larry Reed, HSED
Lloyd Guerci, OWPE Russ Vyer, HSCD
Lisa Friedman, 0CC Superfund Branch Chiefs, Regions I-X
Hans Crump, ERD OHM Coordinators, Regions I-X
Clem Rastatter, OPN Pre-Remedjal Section Chiefs, Regions I-X
sites for the presence of
the review, and take
threats (the guidance
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Addressing Immediate Threats
At National Priorities List Sites’
1.0 IWrRODuCTION
1.1
Two major recommendations of the study Commissioned by the Environmental
Protection Agency (EPA) in June 1989, entitled A Management Review of the
Superfund Program” (Superfund Management Review), were to expedite response at
National Priorities List (NPL) sites and to make these sites safer. On December
15, 1989, EPA issued the guidance “Accelerated Response at National Priorities
List Sites” (OSWER Directive *9200.2-02) to address the first recommendation
The directive described removal, remedial, and enforcement procedures and
contract mechanisms for use by the Regions to accelerate CERCLA response actions
at NPL sites. The following directive addresses the recommendation to make NPL
sites safer. Because it refers to some sections of the accelerated response
guidance, it should be used as a companion piece to that guidance.
1.2 PurDose
This document provides detailed procedures and guidance for evaluating and
addressing immediate threats at NPL sites this year and in the following years.
It provides that proposed new additions to the NPL undergo a removal site
evaluation to identify the presence of immediate threats. It also provides that
final NPL sites be reviewed at least once every two years to ensure, to the
extent possible, that all NPL sites are free from immediate threats. This
guidance is intended for Regional site managers, including On-Scene Coordinators,
Site Assessment Managers, Remedial Project Managers, enforcement staff, and other
Regional and Headquarters Superfund personnel and managers. 2
1 The policies and procedures established in this document are intended
solely for the guidance of EPA personnel. They are not intended, and
cannot be relied upon to create any rights, substantive or procedural,
enforceable by any party in litigation with the United States. EPA
reserves the right to act at variance with these policies and procedures
and to change them at any time without public notice.
2 Federal agencies with facilities listed on the NPL are encouraged to
follow this guidance. Federal agencies with facilities on the NPL have
primary responsibility for evaluating and documenting threats at their
sites. (EPA may respond to emergencies at some Federal facilities; for
more information see E.0. 12580.)
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2 OSWER Directive #9200.2.03
1.3 Scone Of Culdance
Specifically, the guidance will discuss the following topics:
(1) Identifying and addressing immediate threats at NPL sites (Section
2.0); and
(2) Procedures for reviewing and documenting that NPL sites do not pose
immediate threats (Section 3.0).
2.0 IDaITIFYINC AND ADDRESSINC IMMEDIATE TEREATS AT NPL SITES
The Agency’s goal is to protect public health and the environment as much as
possible from the risks posed by NPL sites, both short-term and long-term.
Public health and the environment can be protected from short-term risks at NPL
sites by stabilizing or mitigating immediate threats. Immediate threats to
human health and the environment that result from deterioration of NFL site
conditions before the completion of remedial action must be addressed as soon as
possible.
The sections below discuss how the Agency will work to identify and address
immediate threats. Section 2.1 explains what we mean by immediate threat and
gives examples of problems that the Regions should be looking for. Sections 2.2
and 2.3 explain the evaluation and review process. Section 2.4 briefly discusses
the mechanisms available for addressing immediate threats identified at NPL
sites.
2.1 Considerations During The Review And Evaluation Process
The goal of the review and evaluation process discussed below (in sections
2.2 and 2.3) is to identify, document, and eliminate to the extent possible
immediate threats that may be posed by NPL sites. 3 For example, the review and
evaluation process should attempt to identify threats of fire or explosion,
direct contact threats, significant threats of near-term migration, and other
relatively predictable threats. Direct contact threats might include (but are
not limited to) situations such as uncontrolled waste piles, overflowing lagoons.
3 Documentation that there are no immediate threats at an NPL site is not
related to evidence of possible imminent and substantial endangerment.
An endangerment is a threatened or potential harm. An endangerment is
iimiiinent if the conditions that give rise to it are present, even though
the harm might not be realized for years. An endangerment is
substantial if there is reasonable cause to believe that someone or
something may be exposed to a risk of harm from a release or threatened
release. The mere threat of harm or potential harm to public health.
public welfare, ox the environment is sufficient. The endangerment need
not be immediate to be imminent.
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3 OStJER Directive *9200.2-03
contaminated drinking water, and uncontrolled access to sites where conditions on
the surface pose health threats. Significant threats of near-term migration
might include extensive contamination on the soil surface that would be spread by
a heavy rain or snow. Generally, these situations should be addressed as quickly
as possible to alleviate the threat. In addition, NFL sites should not have, on
the surface, tanks and drums containing hazardous substances. In most cases.
such vaste on NPL sites should be addressed by a removal or remedial action (see
section 2.4 below on mechanisms for addressing immediate threats). The reviewer
should also consider whether conditions might have worsened at the site
subsequent to the initial site evaluation as a result of weather, physical plant
deterioration, vandalism, or other causes that would indicate the need for
additional evaluations or a response action.
It is important that all Superfund site managers (including remedial project
managers and site assessment managers), staff, and site contractors (such as the
Field Investigation Team) be knowledgeable about the capabilities of the removal
program, including the factors in §300.65 of the NCP (section 300.415 of the
proposed NCP). 4 The removal criteria in the NCP should be considered whenever a
site is investigated at the Preliminary Assessment and/or Site Inspection (PA/SI)
stage and when NFL sites are reviewed or evaluated for immediate threats. In
addition, information collected as part of the PA/Si and removal site evaluations
at NPL sites should be used 1 as appropriate, to develop long-term plans for
remedial action for the sites.
The reviews and evaluations of NFL sites can generally be based on easily
obtainable information for each site, as judged by the Region. In past
discussions, Regions have asked to what extent they will be expected to sample
ground water as part of the review process. If sampling wells exist, it may be
cppropriate to sample the water. However, drilling new sampling wells is
generally not appropriate (i.e., usually it should be done as part of the
Remedial Investigation/Feasibility Study (RI/FS) process, not during an NPL site
review or removal site evaluation).
2.2 Evaluating Newly Pronosed NPL Sites
Because conditions at sites newly proposed for inclusion on the NFL may pose
immediate threats to human health or the environment, it is important that a
removal site evaluation be routinely conducted within a short period after a
site has been proposed (if the site has not been evaluated recently before
proposal). A removal site evaluation helps ascertain the current condition of
For ease of use, references to both the old (1985) NC? and the proposed
(1988) NC? sections are provided in the text. It is important to note,
however, that the 1985 NCP remains in full effect until a revised NC? is
promulgated. The revised NCP, which was proposed on December 21, 1988
(53 51394), is expected to be finalized in 1990. The revised section
numbers will become effective on the effective date of the regulation.
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4 OSWER Directive #9200.2-03
the site and whether there are any immediate threats such as fire, explosion, or
direct contact (see section 2.1 above) that should be addressed.
Therefore, effective immediately, all Regions must complete a removal site
evaluation at each nevlj, oronosed NPL site within three months of the date the
site Is officially vronosed for inclusion on the NPL (unless it is not
appropriate; see next paragraph). The components of a removal site evaluation
are described in section 300.410 of the proposed NCP. This evaluation should
include review of any available PA/SI information and, except in extenuating
circumstances, a site visit. When the evaluation is completed, the information
should be entered into CERCLIS (see section 3.3 below) and a memorandum
containing the statements in section 3.3 below should be sent from the
appropriate Regional Division Director to the Regional Administrator, with a
copy to the Director of the Emergency Response Division, Headquarters (ERD).
Regions may choose to issue just one memorandum for all of the sites in the
Region listed in a proposed update or may issue a separate memorandum for each
site.
In some situations, Regional staff may believe that a removal site
evaluation is not appropriate or cannot be completed within three months of the
date of proposal. For example, if the Region has recently (e.g., in the twelve
month period before proposal) conducted a removal site evaluation or a removal
action and believes another site evaluation is not needed, it may not be
appropriate to conduct another one. As another example, if a particular proposed
NPL update includes a large number of sites in one Region, the Region may need
more than three months to complete all the evaluations. In such situations, the
Region should contact the Regional Coordinator in ERD. •Then the appropriate
Regional Division Director should send a memorandum to the Regional Administrator
with a copy to the Director of ERD. The memo should briefly explain the reason
that a removal site evaluation is not being conducted or is being delayed. For
those that are delayed, the memo should explain when they will be completed.
2.3 Reviewing: The Status Of Final NPL Sites
Because NPL sites can deteriorate while awaiting final remedial action, it
is important to review all NPL sites periodically to ensure that there are no
immediate threats. Such a periodic review also assists Regions in ensuring that
the worst sites are addressed first.
Therefore, in keeping with commitments made to implement the Superfund
Management Review, all Regions must. by Seotember 30. 1990. document that there
are oresently no immediate threats. or that they are taking action. at all sites
on the final NPL (see section 3.3 for information on documentation).
After this initial review and documentation, subseouent documentation
memoranda will be due on January 1 of each year starting with January 1. 1992.
ReEions must review and document the status oteverv final NPL site at least once
every two years. reviewing half the final NPL sites each year (using the
procedures developed under section 3.1 and the statements in 3.3). This means
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5 OSWER Directive #9200.2-03
that after the initial review of all of the final NFL sites in 1990, Regions will
review and document the status of half the final NPL sites again by January 1,
1992, the other half by January 1, 1993, and so on. This requirement recognizes
that while sites must be reviewed routinely to achieve Agency goals, the reviews
should not be so frequent that they create an excessive resource burden for the
Regions. In addition, reviewing half of the sites one year and the other half
the next should assist Regions in planning their workload and budget cycle. In
keeping with the principle of addressing vorst sites first, Regions should
consider the results of the 1990 review in deciding which half of the final NFL
sites to review in 1991 (in order to document the results in 1992). If a
proposed site makes the final NFL, generally it should be reviewed two years
after the removal site evaluation (see section 2.2 above) or after it becomes
final, whichever is later (unless a problem is suspected or an earlier review is
deemed appropriate).
All documentation memoranda must be signed by a Regional Division Director
and sent to the Regional Administrator with a copy to the Director of ERD.
Section 3.0 describes procedures for accomplishing the review/documentation
process.
Note: The purpose of the review and documentation is not to mandate that
sites be visited but instead to ensure that site circumstances are considered at
least every two years. Thus, specific site circumstances should dictate hoe each
site will be reviewed for immediate threats. For example, some sites may be free
fro. surface contamination, known to be very stable, or have extensive existing
data. In these cases, there may be no concern in documenting the site as free
from immediate threats without a recent site visit because weather, vandalism,
etc., could not cause further harm. Regions may need to visit or use other
methods to review other sites more frequently.
2.4 I1echanjsms For Addressing Immediate Threats
Once the immediate threats have been identified, they should be addressed in
a timely manner. The December 15, 1989, directive on accelerated response at NFL
sites (OSVER Directive #9200.2-02) describes the removal and remedial mechanisms
available for addressing NPL sites. Any of the mechanisms described there may be
used for addressing immediate threats as well as for accelerating response. The
type of threat found, the amount of time available before the threat must be
addressed, and the resources available (e.g.. personnel and contractor) will
dictate whether remedial or removal authority should be used to address immediate
threats. Generally, the removal program will be used to respond to immediate
threats that must be addressed quickly (see the accelerated response directive
for more information on the removal and remedial programs; e.g., the guidance
explains the requirement for issuing an action memo for removal actions, etc.).
The remedial program may be used to respond to some threats identified during the
review process, especially when found during an on-going RI/FS and there is
sufficient time to complete a Record of Decision and conduct an accelerated
remedial action. As discussed in the directive on accelerated response, site
managers must take advantage of enforcement authorities whenever possible.
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6 OSWER Directive #9200.2 o3
3.0 FOR R VIEWING AND DOCUMENTING THAT NFL SITES DO NOT POSE
EDIATE THREATS
The following sections describe the types of procedures that Regions may use
to review their NPL sites and document the findings. Section 3.1 describes
optional procedures that the Regions may consider to review final NPL sites for
immediate threats (the procedures do not apply to proposed NFL sites because
Regions generally will conduct a formal removal site evaluation on proposed
sites). Section 3.2 discusses options for structuring the review. Section 3.3
presents statements which all. Regions must use to document that final NFL sites
do not present an immediate threat or that action is being taken. Section 3.4
gives information on environmental indicators.
3.1 Review Procedures For Final NFL Sites
The Regions must develop internal procedures specifying how they will
accomplish the review/documentation process. The procedures must explain which
offices viii be responsible for the initial review, how sites will be handled if
further evaluation is needed, and who will sign the documentation memorandum (in
some Regions, more than one Division Director may be involved). The Regions
should establish their procedures for review of NPL sites as soon as possible, in
order to allow sufficient time to complete the necessary work involved in meeting
the September 30, 1990, deadline.
The Regions have wide latitude in the formulation of a review/documentation
process. For example, some Regions may choose to have site managers (i.e., staff
responsible for NPL sites on a day.to.day basis) conduct the initial review,
referring questionable sites for further evaluation by the removal program, or
the Regions may choose to have the removal program perform the entire evaluation.
Alternatively, a Region may choose to establish a task force of staff from all
Superfund programs to coordinate Regional reviews of NPL sites.
The Regions may choose to adopt any of the abovementioned options, or use
any combination of approaches as appropriate, or may instead develop different
procedures to accomplish the review. Flexibility is necessary in order to
accommodate Regions with a small number of final NPL sites that may want to
organize the review process differently from Regions with a large number of final
NFL sites. In all cases, however, the final documentation consists of the
statements and CERCLIS report discussed in section 3.3.
3.2 Structurina The Review Of Final NFL Sites
Regardless of the approach chosen and depending on the number of final NPL
sites, the Regions may wish to conduct their reviews throughout the year. For
example, if a Region has 200 final NPL sites (not counting Federal facilities;
see footnote 2) the Region may wish to structure the review process so that 25
sites are reviewed each quarter (because the status of half of the sites will be
reviewed and documented each year). In this case, the Region may wish to issue a
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7 OSUER Directive *9200.2-03
documentation memo on a quarterly basis for each group of sites or may choose to
wait and document all of the site reviews once a year. noting that the actual
reviews were done on a quarterly basis and will continue on this basis in the
coming year. Regional plans should also take into account the fact that
additional sites will be finalized and/or proposed for the NFL during the two-
year review period. Regions will have to conduct removal site evaluations at
these sites within three months of proposal (see section 2.2). In any case, the
review (and findings if additional evaluation/action is needed) should be entered
into CERCLIS when the review is completed.
3.3 Doc aenttna The Results Of The Reviews And Evaluations (Final and Proposed
NFL Sites)
Regions must use the following statements, as appropriate, to document that
they have reviewed all final NFL sites (except Federal facilities; see footnote
2). The statements should also be used to document findings of the removal site
evaluations conducted at newly proposed sites (see section 2.2).
Within the next several months Headquarters will, add a new event type to
CERCLIS and write new reports to assist the Regions in tracking their reviews and
documenting the results. Headquarters will send guidance on the new event and
reports to Regional offices in the near future. The CERCLIS reports will be the
attachments indicated in the statements below.
Documentation for sites where a response (remedial or removal) is ongoing or
nianned (for planned actions, statement generally should be used only ithere
response action is planned to be taken within twelve months of the date of the
memorandum):
“The following sites have response action ongoing or are scheduled for response
action to alleviate immediate threats at these sites. The attachment (CER ,CL.1S
report] shows the quarter and year when the work is scheduled to begin (for
planned actions) or when work started (for ongoing actions).”
Documentation that sites do not have immediate threats :
“1 have reviewed the available information on the sites listed in attachment —
(CERCLIS report] and, based on this information, there are presently no
immediate threats at these sites. The Agency, at its discretion, may take
further action at these sites under CERCLA section 104, 106. or 122.”
For final NFL sites, each Region is required to issue only one documentation
memorandum per year (but may issue more than one as described in section 3.2
above). The memo must contain the statements and attachments described above and
cover all of the final NFL sites in the Region that are being reviewed/documented
that year. For proposed NFL sites, a Region may issue one memo for each site or
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8 OSWER Directive 09200.2-03
may group the sites. A Regional Division Director must sign the memorandum
containing thá appropriate statements and send it to the Regional Administrator
with a copy to the Director, Emergency Response Division. As mentioned earlier,
the first documentation memo (with the attachments) is due September 30, 1990,
for all final NPL sites (except Federal facilities). Subsequent memos are due
for half of the final NPL sites every year, starting on January 1, 1992.
Memoranda for proposed NPL sites are due 3 months after proposal.
3.4 Fnviroji.eu a1 Indicators
Retions must comtlete an environmental indicator form for all removal
actions comvleted at orooosed or final NPL sites tnis fiscal year. i.e.. FY 90.
This will support the documentation and public explanation of what has been done
to fulfill the Administrator’s commitment on this Presidential objective. The
environmental indicator forms and instructions will be sent to the Oil and
Hazardous Material Coordinator in each Region in the near future.
4.0 BIBLIOGRAPHY
Guidance
“A Management Review of the Superfund Program,” Report from U.S. EPA,
Washington, DC (6/89)
OSWER Directive No. 9200.2-02, “Accelerated Response at National
Priorities List Sites” (12/15/89)
Statutes and Re u1atjons
The Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 as amended, 42 U.S.C. 9601-9657
The National Oil and Hazardous Substances Pollution Contingency Plan,
40 CFR Part 300 (11/20/85)
The National Oil and Hazardous Substances Pollution Contingency Plan,
Proposed Rule, 40 CFR Part 300, 53 gL2. .t 51394-51520
(12/21/88)
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Guidance for State-Lead Removal Actions
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON O.C. 20460
JA. tOI j
o..IcI OF
SOUD WA3T AND eMIMOINCY RWON
OSWER Directive I 9315.1-4-U
MEMORAPIOUM
SUBJECT: Addendum to the Manual: State Participation In the Superfund Program
—- Appendix U, “Guidance for State 1 .Le,J1 Removal Actions”
FROM: Henry L. Longest II, Director ‘LI fr ’
Off ice of Emergency and RemediayW bP se
TO: Waste Management Division Directors, Regions I—X
Environmental Services Division Directors, Regions I, VI, and VII
Attached is Interim final guidance on State—lead removal actions, Issued as
Appendix U to the State Participation in the Superfund Program manual. This
guidance sets forth the policy and procedures for executing Cooperative Agreements
with States for non-time—critical removal actions. The guidance is intended to
provide the Regions with a new management tool for handling your workload and
further delegating program responsibilities to States.
Appendix U has been developed by the Emergency Response Division In
cooperation with the Hazardous Site Control Division, as well as Regional and
State personnel who served on the workgroup. Two prior versions of this guidance
document have been issued for Regional review and c ent. This interim final
guidance, issued as OSWER Directive 9375.1—4—U, has been revised to incorporate
Regional cuimients where appropriate.
The final guidance is divided into four major sections:
• SectIon 1: Scope of State—Lead Removal Actions
° Section 11: Development of Cooperative Agreement
Application Packages
• Section III: Administering Cooperative Agreements
• Section IV Cl oseout of Response Agreements
In addition, where applicable to removals, the final guidance incorporates
existing procedures and requirements for executing Cooperative Agreements for
remedial actions as contained in Chapters I—X of the State Participation in
the Superfund Program manual. In order to streamline the guidance development
process, sect ions of the manual relevant to the removal program have been cross—
referenced in the State-lead removals guidance. Response personnel, therefore,
must have access to the manual in order to execute Cooperative Agreements with
States for removal actions.
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—2—
Questions or C’ nts concerning implementation of this new progreit should
be directed to DO ” Kraft, Special Assistant to the Director of the Emergency
Response Division at (202) 382—2452.
Attachment
cc: 01(1 CoordInators, EPA Regions 1-X
Tim Fields
Don Kraft
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9375. 1—4—I
APP WZX W
GUIDNI FOR STATE-t D R iO’Tht. ?CT IONS
OStJ R DIR TIV
9375. 1—4-41
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PREFACE
This-guidance sets forth the policy and procedures for awarding to
States the authority and funds necessary to lead a CE LA—funded removal
action. It is intended to provide Regions with a new management too]. for
handling their wOckload and as a mechanism for further delegating program
responsibilities to States. Under this program, States may lead
non—time—critical removal, actions at NPII and non—NPL sites. Authority to
enter into a Cooperative Agreement with interested States rests with the
Regional A inistrator as set forth in Delegation 14—1—a (Superfund Stat.
Contracts and Cooperative Agreements for Removal Actions).
ProvLsiona of this guidance may be subject to revision given L&
Reauthorization, proposed revisions to the National Contingency Plan ano
removal program poLicy/guidance development activities. In addition, it is
anticipated that revisions to the operating procedures set forth in the
guidance may be necessary once Regions have obtained experience in
implementing Cooperative Agreements with States.
This guidance has been developed by OSWER’s Emergency Response Division
(ERD) in cooperation with the Razardous Site Control Division. Regional
staff participating in the implementation of State—Lead removal actions
should contact their appropriate Regional grant personnel or EQ ERD Regional
Coordinator if questions or problems arise when executing a Cooperative
Agreement.
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93Th. 1—4—cl
APP!3IDIX W
GUIDANCE FOR STATE-t.EAD Ra1OVAL ?CTIONS
I. SCOPE OF STATE-LEAD R ’4OVAL. ?C IONS
A. Types of Cooperative Agreements
A State must enter into a Cooperative Agreement with EPA bsfor•
beginMng a response action using 1 A faa” .. A Cooperative qrs—snt
is the mechanism established by the Federa3. Grant —“ 4 .Coopscative
Agreement Act that a Federal agency uses to provide Stats. or politicaL
subdivisions with funding assistance while retaining significant
involvement in the project. The Cooperative Agreement dccisnts the
respective responsibilities of the recipient of Federal fia’ai . and the
agency providing the assistance. Cooperative Agreements are used to:
Transfer funds for specific project(s)
• Document the State’s statutory and regulatory responsibilities
and assurances
• Approve project—specific budgets and scopes of work
• Identify any special program requirements related to the
project
Document the Federal agency’s role and responsibilities .durinq
the project.
There are two types of Cooperative Agreements: 1) a site—specific
Cooperative Agreement: and 2) a multi—site Cooperative Agreement
(MSCA). State—lead removal actions may be executed via a sits—specific
or multi—site Coooerative Agreement .
1. Site—specific Cooperative Agreements are appropriate ms h*nisas
to fund response activities required at a single site. Thee.
agreements cover one removal action at one site and can be ndsd
to include subsequent removal activities and to provide ftai14s
necessary to complete the action at that site.
2. A multi—site Cooperative Agreement is an “umbrella” Cooperative
Agreement that, under one faa’a Hng document. may include several
response activities at more than one site within a Stats. HSCA
should be used in situations where sites are within close
proximity. States requesting to lead removal actions at more than
cl—i
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9375. 1—4-41
one site may choose to develop a MSCA or an existing HSCA may be
amended to include a State—lead removal. If the State agency
identified to lead Superfund response actions is different from the
agency certified under an existing agreement with EPA. the Stats
must submit to EPA a letter (signed by the Governor or Attorney
General) indicating it has the authority to accept Federal funds
.and sake th. required assurances.
B. Types of Actions
1. State—Lead removal actions initially will be limited to
non—time—critical removals at NPt. and non—NPL sites . All
time—critical removal actions will be Federal—lead, including
actions that are initially categorized as non—time—critical, but
due to extenuating circumstances, the Regional A iniatrator (RA)
has determined to be more appropriate for a Federal—lead response
(e.g.. a time—critical response becomes necessary, required
response is more extensive than anticipated and exceeds State
capabilities). Cooperative Agreements must contain a special
condition to this effect.
(a) Won—time—critical removals appropriate for State—lead are
actions where initiation of cleanup or stabilization efforts
may be delayed for approximately six months or more from the
time the threat is discovered.
(b) Non—time—critical removals include all activities
formerly categorized as initial remedial measures (IRMs) under
the remedial program and longer term removals that can be
planned in advance.
Cc) To date. State experience in leading non—time—critical
actions has been limited to IRM—type activities previously
conducted under the remedial program. Examples of State—Lead
IRM—type responses include fence construction. erosion control
and off—site disposal of hazardous waste. Additional •xampl.s
are provided in Exhibit 1.
2. The Superfund Comprehensive Accomplishments Plan ( CAP) process
will be used as a planning/management tool for identifying removal
actions appropriate for State—lead. Only removals that are listed
on the approved or revised SCAP can be State—lead.
(a) Funds may not be obligated for State—lead removal actions
that do not appear on the approved SCAP. Removal actions
under consideration for State—lead must be listed on the SCAP
at least one quarter in advance. However, these actions may
W-2
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EXHIBIT 1
EXAMPLES OF STATE-LEAD IRM PROJECTS CONDUCTED UNDER ThE REMEDIAL
PROGRAM
• Excavadon and off .site disposal of surface and buried w te materials and
contaminated soil
• Fence coasn ucdon
• Bank stabilization
• Waxer supply eabnent of municipal well
• Inst2Il2tion of carbon filters on private wells
• Consmiction of lagoon perimeter dike
• Temporazy cap for lagoons
• Posting of cauxionazy signs along creek
• Storm water control
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937 . L—4—
be projected on the SCAP for more than one quarter in advance
since, by definition, non—time—critical removals are actions
where initiation of cleanup or stabilization efforts may be
delayed for approximately cix months or more from the time the
threat is discovered.
(b) Removal actions identified for State—lead must be on the
SCAP bsfQre the Action Meaor ”l’ and Cooperative Agreement
can be approved. Preparation of the Action Memorandum and
Cooperative Agreement application can begin. høwever, before
the removal action is placed on the .SCAP.
(C) Revisions to the app&..d S P require coordination with
EPA Headquarters. Regional Oil and Hazardous Materials ( Q1)
Coordinators are responsibl, for initiating arty necessary SCAP
updates/revisions to ensure that sites identified for
State—lead are placed on the SCAP. as required. 01*1
Coordinators should contact their designated ergency
Response Division (ED) Regional Coordinator in EPA
Headquarters when updates/revisions to the SCAP are required.
C. Scooa of Activities
1. All C t.A—funded preliminary assessment and section 104(b)
activities undertaken to assess the extent of contamination and to
determine whether the incident meets the ICP and CLA criteria
for removal action will be Federal—lead. This does not preclude
States from leadinq pre—remedial activities under a remedial
Cooperative Agreement.
2. All Engineering Evaluations/Cost Analyses (EE/CAs) necessary to
meet the requirements of the National Environmental Policy Act
(NEPA) will be Federal—lead.
3. All enforcement activities, including PotentLally Responsible
Party (PR?) search, and notification and negotiation with PRPs will
be Federal—Lead. State—Lead enforcement activities for removal
actions may be considered once the program has been implemented.
4. OnLy those activities authorized in the initial or amended
Action Memorandum will be Stats—lead, including any post removal
site control (formerly operation and maintenance or 0&Z4) that is
LA-funded.
(a) States will procure and lead all contractor cleanup and
stabilization activities, including operation and maintenance
activities authorized in the Action Memorandum.
W—3
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9375.1 4W
(b) Once response begins, no party other than the State may
direct the response activities being performed either by the
State or its contractor(s). However, at the discretion of the
RA. a response may be determined to be more appropriate for
Federal—Lead (see section Z.3.1 of this guidance).
D. App .l of State—lead Removals
1. The RA viii determine, on a case—by—case basii, removal actions
appropriate for State—lead . Factors the RA should consider when
evaluating a State’s request to lead a A—fw ded removal
include, but are not limited to:
State experience in leading activities conducted “ d . c
the remedial program (e.g.. IRM—typ. actions) that are
similar to the response actions required to clean up or
to stabilize the release at the site under evaluation for
State—lead.
State experience in responding to hazardous substance
spills/incidents independent of Federal involvement/funds.
Existence of a State Contingency Plan for hazardous
substance release response.
2. A Removal Action Memorandum and Cooperative Agreement are
required for all State—lead removal actions . The Action Memorandum
will be an integral part of the Cooperative Agreement and must be
approved before an Agreement can be awarded to the State. A copy
of the approved Action Memorandum will be made available to the
State and will be provided when the Agreemar is awarded, if r iot
before. All Cooperative Agreements. and amendments to the
Agreement. will be negotiated at the Regional Level and approved by
the Regional Administrator. OSCa or RPMs. as appropriate. viii be
the State’s primary EPA contact for developing and negotiating
Cooperative Agreements.
(a) EPA will, prepare the Action Memoranda in accordance with
current program procedures. and in close cooperation
consultatiøn with the State. EPA will always select the
response/activities to be taken at the sits in consultation
with the Stats. The Action Memorandum must document that the
removal will, be State—lead and identify what cleanup or
stabilization actions must be taken within a specified cost
and duration. The Action Memorandum must also identify
activities that will be Federal—Lead (e.g.. enforcement
activities).
W—4
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9373. 1-4-41
— In accordance with program polic7 and procedures.
the AA. OSWER must approve all Action Memoranda for
removal actions initially or ultimately expected to
exceed the statutory limitation on cost; otherwige.
the RA will approv, the Action Memoranda, including
exemptions to the limitation on time, with CSW
concurrence required on proposed precedent—setting
non—PIPL. removals.
- Changes in project scop. and exemptions to the
statutory limitations on cost and duration most be
documented and approved ui accordance tth _ -- ant
removal program procedures before the Cooperative
Agreement is amended. In order to expedite the
approval process. State Project Officers (SPOs)
should contact th. assigned OSC/RPM as soon as it is
)azown that an amendment to the Action Memorandum is
necessary.
These procedures are discussed briefly in Section III of this
guidance and in more detail in the Superfund Removal.
Procedures manual.
(b) States are responsible for preparing the Cooperative
Agreement package. which must include a Cooperative Agre..rlt
Application. EPA Form 5700—33. and the attachments discussed
in sect on II CDevelopment of Cooperative Agreement
Applicatton Packages) of this guidance.
E. Funding Mecharusm
1. State—lead removal actions will be funded via a Latter of
Credit.
(a) Under this method, LA funds are provided to a State
through an existing Latter of Credit established at a Federal
Reserve Bank chosen by the State. The State uses — or “draws
down” — funds from the credit account to cover its inned.iate
cash needs.
Cb) Under a Letter of Credit. funds are obligated when the RA
signs the Cooperative Agreement and sends it as an offer of
award to the State; funds become accessible to the State on an
as—needed basis upon execution of the Cooperative Agreement.
Th State Participation Manual provides additional information on
the Latter of Credit funding method.
u-s
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9375. 1—4—u
F. Procurement Methods/Conditions
Under a removal Cooperative Agreement. States must award a fixed
price subagreement (lump sum, unit price or a combination of the two)
when procuring contractor support. regardless of th. procurement method
selected, unless it receives the Award Official’s prior written approval.
1. Methods of procurement that States say use include small
purchase. formal advertisement, competitive negotiation. or
non—competitive negotiation, as appropriate.
2. All procurement subagreements must adhere to any ginaacioq
Evaluations/Cost Analyses that may have been conducted by EPA for
the project covered in the Cooperative Agreement. A special
condition to this effect should be included in the Cooperative
Agreement.
3. To conduct procurement activities under the Superfund program.
a State must either have an internal procurement system that
complies with the requirements of 40 ‘YR Part 33 (Procur ent under
Assistance Agreements) or must use Part 33 as its procurement
regulation and allow EPA preaward review of proposed procurement
actions. Additional Lnfocmation on this requirement is provided in
section 11.2(a) of this guidance and Volume I I of the State
Participation Manual.
C. State Assurances
In order to enter into a Cooperative Agreement for a removal
action. EPA policy requires States to provide assurances for (1) sharing
in the cost of cleanup at publicly operated sites. (2) pro 4 ding a
facility in compliance with the Resource Conservation and Recuvery Act
for off—site treatment, storage. or disposal of substances taken from a
site, and (3) assuming responsibility for post removal site control
(formerly termed operation and maintenance or O&M). O5Cs RPMs are
responsible for monitoring State compliance with these requirements.
1. States are not required to share in the cost of a removal
action, unless that removal is conducted at an NPT.. site that was
publicly operated (either by a State or a political subdivision
thereof) at the time of a release and a remedial action is
ultimately undertaken at the site. In these situations. States are
required to pay 50 percent of all removal costs. A State is not
required to pay its cost share for the removal until the remedial
action is funded by EPA .
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9375.1—4—U
2. States are statutorily required to ensure the availability of a
hazardous waste treatment. storage or disposal facility, if a
remedial action requires off—site treatment., storage. or disposal
of hazardous substances. Such facilities must be in compliance
with Subtitle C of RA and a A compliance inspection must have
been completed at the facility within the six—month period prior to
the receipt of wastes. According to current EPA policy on off—site
disposal (OSWER Directive *9330.2—3). non—time—critical r iqvaj
actions are sub:Ject to these requirements. SPOs sj,ouL 1 contact
their EPA—designated OSC/P.PM or Regional RA Off-site Contact
( C) for assistance in identifying disposal facillt.Les and
resolving issues pertaining to off—site disposal.
3. Removal program policy allows for payment of post removal site
control within the twelve months time limit for th. entire
removal. The State must assume responsibility for post removal
site control at the conclusion of the removal action. EPA may
include funds for post removal site control for the project period
covered in the Action Memorandum. However, a State must ass e
responsibility for post removal site control after the comi l.tion
of the Ct.A-financed action. The Cooperative Agreement
Application or a special condition must provide an assurance that
the State will assume responsibility for all post removal site
control as long as necessary once the action is complete.
I I • DVE IOPMERT OF COOPERATIVE ?GRE 1T APPL ,ICATION P? C ES
The State is resoonsibile for developing the Coooerative Agreement
plication package . While the OSC/RPM will be the States primary EPA
contact for developing and negotiating Cooperative Agreements for removals,
Regions may elec: to assign administrative responsibilities to Regional
staff other than the OSC/RPM. State officials responsible for response
agreements. usually State Project Officers (SPOs) . should work closely with
an EPA-designated OSC/RPM when developing the Cooperative Agreement.
Additional support to the OSC/RPM will be available through the EPD Regional
Coordinators in EPA Headquarters. OSCs/RPMs and OHM Coordinators are
responsible for reviewing the Cooperative Agreement Application for accuracy
and completeness.
A. The Coonerative Agreement Application
The Cooperative Agreement Application package must include EPA Form
5700—33 and several attachments. The application form and th. required
attachments are briefly discussed below. Additional information is
provided in EPA’! manual entitled State Participation in the Superfund
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9375.L—4—w
1. When applying for CERCLA funds. a State must complete EPA Form
5700—33. Application for Federal Assistance — State and Local
Nonconstruction Programs. This form consists of five parts:
• Part t — General Suumary Znformation
• Part II — Project Approval Information
• Part III — ludget Information
• Pact IV — Project Narrative Statement
• Part V — Assurances.
General instructions for completing each part are included in the
application form. The State should ensure that couts included in
the application are allowable for payment .gid g ‘ . To be
allowable, proposed costs must be consistent with section lii of
C LA and with Federal cost principles outlined in the CI
Circular A—87. “Cost Principles for State and Local Govecx msnts.”
The State may seek assistance from the CSC/RPM in determining which
costs may be allowable. Final determination of the reasonableness
of the cost estimates in the application will be made by the EPA
Award Official. Exhibit 2 presents the content and Exhibit 3 the
appropriate level of detail required for completing Cooperative
Agreement budget information.
2. Attachments to the Cooperative Agreement Application
A Cooperative Agreement Application for removal arri.,rta must
include the following attachments:
State certification letter
Procurement System Certification. EPA Form 57ØO 49
tntero’;ernmsntal review cosm ents
• Comauniy relations plan. if applicable
Quality assurance/quality control (QA/QC) plan
• Site safety plan
These attachments are briefly discussed below. More detailed
information is provided in the State Participation Manual.
* While the term State Project Officer is used throughout the guidance to
denote a States counterpart to an EPA OSC/RPM. it is recognized that
different terminology may be used among the States.
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EX)1IBIT2
OBJECT CLASS CATEGORiES CONTENT REQUIRED FOR COMPLETiNG
COOPERATIVE AGREEMENT BUDGET SHEETS
CATEGORY CONTD IT - THE STATE MAY INCLUDE.
Cosm of wagm paid to State eii 1oyees who mu
m gaged I rmp ise thiues. ( l ih m
a t --’-ge Of thiai level of effost (LOU) b .)
Fnn e Bcne1i • Frãige bmwii for Smu mnployees, calc’uluel an
a Hand pm i e of salazy os by s othm
— —
• Cose imciiued by Stue empk su for ua .J
j -It for wr ’ thiâes.
• Puidiase e of eq ipInu1t thai the
Sxe fai’nishes, less im tesiduil valiis a pioject
COi! lii f lu Uiest Cosm *u 16.,ed
on asage imas, the cosm sin I iuI4 by a
s’ d depiedndai usage w hai or
coidasos with 0MB Qatulsi’ A-072 N.
Matesials and Supplies • Puidime puce of any n i tv matailals
and supplis the State furnishes.
Coumactual Smvices • Cos asso’-’ ”4 with zeunbuning coeu ius
smvEes, tiw 1 uirthig direct and bidimct ..uuuuT
- ai piofit for p unaI
s v s and ui ,cuon (See
40 R Pm 33 and 0MB Circulz A-37.)
Oth Dbect Cos • Costa such an equipmt r. ”iaL real pm pmty
purcbe ( see 40 CFR Pm 30), and
• The State may indirect costa.
In osdaice with the Piu 1 t Payiucnt Act (Pt. 97-177), Pedaal funds
may uct bs used 1 of interest p. it i to conu i when
bills sin psiii Tue.
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E O1I8IT 3
OSJECT CLASS CATEGORIES
A PR1ATE LEVEL CF OE AIL FOR TEM ED
COOPERATIVE AGREEMENT APPUCATION EUDGET
CATEGORY INFORMATION
P nuel • Positions of staff
• Number of houzi
• S ikry of staff (annual or hourly rate)
• Estimates of personnel costa, by position
Fringe Benefits • Basis (peicentage or other) upon which
hinge benefita ate ea1c” 1 ’ r1
• Estimates of hinge benefit costs by position
Txa el • Purpose and estimated number of tnps
• Starting point and desrh on
• Transportation method
• Per Diem while on travel
• Number of persons traveling
• Estimated cost of trips
Equipment • Number and type(s) of u uipmciit to
be purchased
• Price of each piece
Materials and Supplies • Type(s) of materials and supplies to be
furnished
• Total prices
Contractual Services • Estimated number of personal services
or noaconstruction contracta
• Nature of contract services
• Estirnat..d total cost for each contracv
* Esthia s should flow for bid and activity contingencies.
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9375.1— I— i l
(a) A certification letter must be included in the
Cooperative Agreement Application package. This letter must
be signed by the Governor or Attorney General and must
indicate that the agency entering into the agreement has both
the authority to do so and to make the assurances required by
EPA as discussed in section I.G of this guidance. Th.ts letter
may be a generic, one—time statement that covers all sites
within the State. or it may be site—specific. If a State
chooses to submit certification letters on a site-specific
basis, a certification letter must be provided for each site
covered under a multi—site Cooperative Agreement.
(b) In order to conduct procurement activities under the
Superfund program, a State either must hav an internal
procurement system that meets the intent of EPA’s regulations.
Procurement Under Assistance Agreements (40 ‘R Part 33). or
it must follow Part 33 when it conducts procurement and allow
EPA pre—award review. The procurement certification form. EPA
Form 5700—48 (Procurement System Certification). danonstrates
whether or not the State’s procurement system is equivalent to
EPA requirements. The certification is valid for two years or
for the length of the project period established in the
assistance agreement. which ever is greater. It he Stat. has
previously provided this certification to EPA. the State needs
only to indicate in Part A of the form the date the
certification was originally submitted.
Cc) In accordance with Executive Order 12372. State’eil
removal proposals are subject to intergovernmental revae-
before EPA will obligate funds. Intergovernmental cev ew is
implemented under 40 CER Part 29. Intergovernmental Re”:zew of
EPA Programs and Activities. Under this regulation. if the
State has an established review process that includes the
project in question, an applicant must formally notify its
designated single point of contact, as well as any directly
affected governmental entities and areawide or regional
planning agencies that it is seeking Federal assistance and
comply with the State’s review process. A copy of the
notification should be sent to the appropriate EPA Regional
office. Any comaents received in response to this
notification must be attached to the Cooperative Agreement
Application. Funds will not be obligated to the State until
representatives of the State have had an opportunity to
coment on the proposed project(s). The intergovernmental
review process should be initiated at least one quarter prior
to obligation of funds for response at a site. This lead time
is necessary to meet the required 60—day State review period
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9375. l—4—W
and to allow time for EPA to respond to State and local
comeents. EPA must accoisnodate. or explain why it cannot
accoimnodate • any comeent received during the formal process
before it can award funds to the State.
Cd) Section 300.67(b) of the National Contingency Plan (ICP)
requires a formal coirusunity relations plan ( P) for all
removal actions that last longer than 45 days (Note: proposed
revisions to the ?CP change this requirement to 120 days).
States are therefore required to develop and pl ” a P
for all removal actions that are expected to sxtand b.yood
this designated time frame. Additional information on Ps
and guidance for developing these plans is provided in the
Superfund Removal Procedures manual and in EPA s manual
entitled Conmiunity Relations in Superfund: A Handbook .
States may submit the CRP separately from the Cooperative
Agreement Application package. In that event, either the
Cooperative Agreement Application or a special condition most
provide that the State will submit the C P prior to
on—Cite activities. The CRP is subject to EPA review and
approval.
Ce) As required by 40 CPR Part 30.302(d)(2). a State most
submit within 30 days of receiving its Cooperative Agreement
the QA/QC procedures it intends to use in snv roxunenr a 1
monitoring. These include any sample coLl.cP ion and as&alysis
activities that may be necessary during the re .i ’nst. Only
generic QA/QC plan is sufficient for an MSCA. In addition.
however. States are required to develop a site-spec ftc’
Quality Assurance Project Plan (QAP?) to deectibe the
measurement systems it intends to use on a site. Jhen
preparing the QA/QC plan and Q?.PP. States must meet Superfund
program data requirements. including the following:
Data produced must be able to withstand the scrutiny
of litiqaeive proceedings. thus requiring
appropriate chain-of-custody. doc snent control and
QA/QC doctm entat ion.
Data collection must be cost—effective. Costs of
generating the data cannot significantly exceed
costs associated with similar analyses provided by
the EPA Contract Laboratory Program (CLP).
Data turnaround times must meet project needs.
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937 . 1—4-41
The QA/QC plan muse be reviewed by the EPA Regional QA Officer
and the RPM/OSC and must be approved by the Award Official
before any saznpl.ing can begin for a project.
(f) States are required to have a site safety plan in place
before field activities can comeence. A site-specific plan
must be developed for each removal action. Each safety plan
must provide for the protection of on—site personnel and arsa
residents. Plans must be consistent with site conditions and
must cover all phases of incident operations. Site safety
plans must also comply with all applicable Federal. Stats and
local Occupational Safety and Health (OSH) laws and
Occupational Safety and Health Administration (CSI )
standards. Each sita—specific safety plan must be submitted
to the OSC/RPM for review to ensure removal program
requirements are met. Additional information on site safety
plans is provided in the Superfund Removal Procedures manual.
Site safety plans may be submitted to EPA after the
Cooperative Agreement has been signed providing that the
application or a special condition provides that the plan will
be submitted for EPA review before on—site activities begin.
III. ADMINISTERING COOPERATIVE AGR ZS
OSCa/RPMs and SPOs are responsible for ensuring that response activities
are conducted according to the agreed—upon scope of work, budget. and
schedule included in the Cooperative Agreement and Action Memorandum. The
State official responsible for directing response activities, usually the
SPO. must ensure that all on—site activities are consistent with LA. the
NCP and removal program policies and procedures. Daily on—site presence by
SPOs is therefore required when response activities are underway. The
OSC/RPM and SPO should maintain close coemiunication at all times to monitor
progress effectively. This can include meetings, phone calls, written
correspondence. and review of contractor monthly progress reports. In
addition. the OSC/RPM and SPO must notify each other imeediately of any
unscheduled or unanticipated events (e.g.. a fire or explosion on site that
may require an emergency response by EPA) that may have a direct impact on
the project and/or on the terms of the response agreement.
This section briefly discusses State reporting and cost documentation
requirements. monitoring State financial comeitments and procedures for
agreement adjustments. Additional information on response agreement
administration and reporting and cost documentation requirements is provided
in the State Participation Manual.
81-1.1
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9373. l—4—W
A. Reporting Requirements
When entering into a Cooperative Agreement. States are sub3ect to a
number of reporting requirements. including submittal of technical
progress reports. financial status reports and other reports as required
in the Cooperative Agreement. These reporting requirements are
discussed briefly below.
1. For removal act ons. States must submit quarterly technical
progress reports within 30 days of the end of each Federal fiscal
quarter and at the end of each response. These reports are
submitted to the Region and present information on activities
performed during the quarter and on total work to date. Exhibit 4
lists the minimum elements that State technical progress reports
should contain for removal actions.
(a) The OSC/RPM is responsible for reviewing technical
progress reports and providing any necessary direction or
assistance to the State. as required. The content of State
reports should be tailored to specific requirements of the
response activities as covered in the Action Memorandum and
the provisions of the Cooperative Agreement. All information
should be site-specific and the OZC/RPM and SPO should reach
an initial agreement on the content and format of these
reports during negotiation of the Cooperative Agreement. For
certain removal actions. EPA may require daily coemunication
from the State. including submission of contractor progress
reports. A special condition to this effect should be
included in the Cooperative Agreement at the time the
agreement is negotiated and may include a provision that the
State require from its contractor submiss&on of daily and/or
weekly progress reports.
(b) In addition, the State must prepare and submi’ a final
technical progress report to the OSC/RPM within 90 days after
the completion of the removal action. Removal ac ions are
complete when the scope of work in the Action Memorandum has
been completed and the State has demobilized. The Cooperative
Agreement is closed out when all administrative/financial
reporting requirements are completed. See section tV of this
guidance.
2. Once a removal action has been completed. States must submit a
final Financial Status Report (FSR). Standard Form 269. and any
ancillary reports. Ancillary reports include statistical or
monitoring data, operation and maintenance manuals and other
reports as required in the Cooperative Agreement. The State should
14-12
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O4BIT 4
CONTENT OF STATE TECHNICAL PROGRESS REPORTS
• Description of acdvities and tas completed to date , by site
• EstiI? 2fPs ( p e iuges ) of work L t d1 h activity, by site,
including a basis for the e th iit ,
• Itemization of experxlituzes by object ’, for ea bicspoase incl”a 4 ed in the
Coop zive A est, hilnilig b h -=s for the quar and the
cumulative exp iditiues so date
• Estimated vanances in cost aid tine to c iupl’ the ujec&
• Narrative expI ion of any tiends obsaved
• Description of any actions t2kn or planned to resolve probkms or delays
encoun 1
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9375.
submit a final TSR and all ancillary reports to the OSC/RPM within
90 calendar days after completion of the removal action.
(a) The State must provide EPA with the opportunity to verify
that the removal has been successfully completed. At the
conclusion of the removal, joint EPA/State final inspection
may be required to confirm that the removal action has been
implemented properly and that all outstanding action items are
resolved. The Stat. .and EPA will jointly inspect the project
to confirm that all outstanding action items are resolved.
The State shall prepare a final inspection report describing
any outst ’ ing items and their resolutions. A copy of this
report shall be submitted to the EPA OSC/P.PM.
(b) In addition. a Final. OSC Report must be prepared by the
State at the conclusion of each removal action in accor ”’ e
with the P P and removal program policy and procedures. This
report will be prepared by the SPO. in consultation with the
OSC/RPM. and must be signed by the SF0. The Final OSC Report
is subject to the approval of the OSC/RPM and therefore must
be signed by the OSC/RPN.
B. Cost Documentation Requirements
When entering into a Cooperative Agreement. States muSt also adhere
to certain cost documentation requirements as set forth in 40 CPR
Parts 30 and 33 and all additional Superfund—specific requirements or
procedures for documenting State expenditure of CZ L.A funds.
1. For removal actions. State accounting and record3ceeping
activities must be detailed on a site—specific basis to ensure
affective cost recovery. States must also track and report
expenditures by object class category. Superfund procedures
include documentation and recordkeeping measures intended to
protect the integrity of site data, such as:•
(a) Notifying EPA of archive research by third parties unless
authorized in writing by EPA
(b) Requiring all microform copying of original documentation
to be done in accordance with, or in a manner equivalent
to. the technical requirements for copying Federal
government records (36 R section 1230 at sag.) .
2. In addition. the Superfund program adheres to the general
Agency—wide policy that, when requested by EPA. States must
provide documentation to support cost recovery litigation and
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9375. 1—4—W
related efforts. Documentation must be available for use as
evidence to answer questions such as what work was authorized.
what work was completed. what charges were incurred for the
work, and what payments were made for the work.
C. Monitoring Financial Cousnitments
OSCs/P.PMs are responsible for ensuring that State expenditure of
Z.A funds corresponds to technical progress at th. site and is within
the cost ceiling in the Action Memorandum and Cooperative Agreement.
Costs incurred by the State may not exceed the amount obligated for the
response in the Cooperative Agreement.
I. The CSC/RPM should review State drawdovns on a monthly basis.
using drawdown information available from the Regional financial
management office. Key documents for this review include the
Financial Management System (FMS) Outlay Report and the State’s
quarterly reports.
2. Funds awarded under a Cooperative Agreement are assigned an
activity (e.g.. removal action) and site code. The OSC/RPM should
ensure that the State is drawing funds from the proper account for
the site and for the action funded. The account from which
drawdowns are made, identified in the EMS Outlay Report and th.
State quarterly reports. must match the action being conducted.
3. Under a multi—site Cooperative Agreement. when a removal at a
particular site has been completed. remaining funds may be used to
fund removal activities at another site covered by the same
Agreement. Such funds, however, must be officially transferred to
the appropriate account. A transfer of funds between s t.es under a
MSCA requires a formal amendment to the Cooperative Agreement to
move the funds from one account to another. Funds remaining in a
site account at the completion of a removal should be deobtigated
and returned to EPA unless the State requires additional funds to
support other removal actions covered in the same Cooperative
Agreement. . ll amendments to Cooperative Agreements will be
negotiated at the Regional level. This requirement will ensure
that the statiitory limitation on cost is adhered to when there is a
need to transfer funds.
D. Agreement Adjustments
Agreement adjustments consist of alterations in the amount, terms,
conditions, project period, project scope or some other administrative.
technical. or financial aspect of the Action Memorandum or Cooperative
Agreement. Depending upon the significance of the change. adjustments
W- 14
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937g. 1—4—U
to the Agreement can be made. eithec through formal amendments or in
writi_nq. between the OSC/RPM and the SPO. Modifications to Action
Memoranda are subject to current removal procedures and policy. All
modifications to the initial Action Memorandum (e.g.. ceiling increases.
exemptions to the statutory limits on coat and duration) must be
documented in an amended Cooperative Agreement, but only after the
Action Memorandum requesting the modification has been approved.
Circumstances where a Cooperative Agreement and Action Memorandum t
be formally amended are presented below.
1. A Cooperative Agreement must be amended when it requires a
significant change. These occur when:
• Objectives and/or scope of the project. as Lunded. are
altered
• Funds obligated under one accounting code will be used
for a different activity or a different site
• There is any increase or substantial decrees. in the
project period or budget
A rebudgeting of funds occurs, such as a transfer between
contractural services and another object class category
or a change in the amount of indirect coats
Changes to special conditions to the Cooperative
Agreement award document.
(a) Formal amendments are not required for minor project
changes that are consistent with the projects objectives.
Minor changes include shifts between object class categories
(except as indicated above) and adjustments to the work plan
within the scope and objectives of the funded project. Minor
project changes should be approved in writing by the CSC/RPM
or the Regional Administrator, as appropriate.
(b) Responsibility for requesting and obtaining approval of
modifications to the Cooperative Agreement rests with the SPO
and OSC/RPM. The SPO or the OSC/RPM identifies the need for
an adjustment and the SPO initiates the approval process by
submitting a request to the Region. The OSC/RPM then
determines whether a formal amendment is needed, and if so.
transmits the request to the Regional Administrator. If the
RA signs the amendment, it is sent to the State for acceptance
and is executed upon signature by an authorixed State official.
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9375. 1—4-44
2. According to standard removal program policy and procedures.
special requests, in the form of Action Memoranda. must be prepared
when the following are required after approval of the initial
Action Memorandum:
n increase in the project’s established cost ceiling
Exemptions to the statutory limitations on cost and
duration
Chaxiqes in scope of work
changes among cost categories when rio chang. in total
project ceiling is required.
Guidance on the procedures for requesting and obtaining approval
for these changes is set forth in the Superfund Remo”al Procedures
manual. OSCs/RPMs are responsible for preparing these requests and
obtaining the necessary concurrence, as well as ensuring that the
Cooperative Agreement is amended accordingly.
IV. Cr 4 OSEOUT OF R PONSE ?IGRE ITS
In order to close out a Cooperative Agreement. EPA must determine that
the Stat. has completed the removal action and complied with a l applicable
administrative requirements under the agreement. The general closeout
responsibilities of the State and the OSC/PPM are briefly discus5’ i below.
A. State Responsibilities
1. A State must complete the work specified in the Cooperative
Agreement and the Action Memorandum and produce the required
reports (e.g.. final FSR and technical progress report). manuals.
plans and other information. Th. State is responsible for ensuring
that all products and reports necessary for closeout are submitted
to EPA. as required.
2. The SPO is responsible for the completion of the final report
as described in the Cooperative Agreement including the reports and
activities as follows:
Draft and final technical report
• Final FSR
Ancillary products such as O&M manuals
• Property/equipment report
Other required reports.
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937g. 1—4-41
3. EPA CSC Responiibilities
1. OSCs/RPMs are responsible for ensuring that the Stats has
provided all required reports and is in compliance with the
provisions of the Cooperative Agreement and Action Memorandum.
2. Specific CSC/P.PM responsibilities are as follows:
• Reviews/inspects work in the project and arranges for
acceptance or correction
• Reviews and approves required reports
• Follows through on delinquencies or deficiencies
• Ensures that all disputes and audit exceptions are
resolved
• Transmits final determinations on any outstanding issues
• Documents the closure in the official file
• Maintains the official records.
The State Participation Manual provides detailed guidance ot. closing ut
respo” e agreements. OSCs/RPMs should refer to the State Part2:Lpatton
Manual for additional information on the requirements/procedures for tos&ng
out Cooperative Agreements.
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Clarification on Allowability of
Managemprit Assistence to States for
ERAs and Removals
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. _3 Sl
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON. D.C. 20460
/
1 q
L O OSWER DIRECTIVE 9375.1—13
J(J” I
CFF!C CF
SOLIO WASTE A 1O EMERGE’iCv RE!?ON!
MEMORANDUM
SUBJECT: Clarification on Allowability of Management
Assistance to States for ERAs and Re vals
FROM: Henry L. Longest It, Director
Office of Emergency and Remedi t.cpbnse
TO: Waste Management Division Directors
Regions I — X
PURPOSE
This memorandum is intended to clarify Agency policy on
the allowability of providing funds to States for manaqement
assistance activities for expedited response actions (tRAs)
conducted during Federal—lead response actions and for Federal-
1 ead removal s . —-
BACKGROUND
Current guidance does not specifically address the allow—
abil ity of funding management assistance for State participation
Ifl Federal—lead ERAs or removals. Several Regions have received
requests from States for funding management assistance to
support ERAs, and Regions have asked for clarification from
Headquarters on this issue. In addition, some States have
.requested funding to support removal actions, and OERR believes
that clarification is required on the allowability of funding
:State involvement i Federal—lead removals as well.
: POLI,y ON ALLOWABI LI TV
If an existing management assistance cooperative agreement
does not ’appear to have sufficient funds to cover a State’s
role in supporting an ERA being conducted during Federal-lead
remedial response, the Region and State can amend the cooperative
agreem n to include the unexpected increase in State support.
Cf the State is not already receiving management assistance for
a Federal_lead activity when an ERA becomes necessary, the
eg1on can provide management assistance via a cooperative
lgreeme if the State feels its role in the ERA warrants such
1r1ancjal assistance.
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—2-
States may not receive funds for management assistance on
Federal—lead time—critical removals due to their emergency nature
and related time constraints. These constraints do not allow
sufficient time to negotTTte and award funding of State support.
Further, management assistance will generally not be provided for
Federal—lead non—time-critical removals. However, funding may
be c flsidered on a case-by—case basis subject to availability of
fund twhen removal actions are complex and State support is
expected to be extensive. Prior to consideration of funding
management assistance for State involvement In any removals,
Regions must consult with Headquarters.
I MPLEMENTATI ON
Funding for ERA assistance must be shown on the budget sheet
for the management assistance cooperative agreement as a separate
activity and tasks associated with this activity should be
described 1$ the Statement of Work for the agreement. Require—
ment.s for State cost—share depend on the phase of the remedial
project during which the ERA is conducted. State cost share is
not required- for management assistance If the ERA is conducted
during the Rt/FS at publicly operated sites but cost share is
reif iired If the ERA is conducted after a ROD has been signed.
Management assistance provided for the remedial action phase of
response must be cost shared by the State at the same percentage
as the remedial action.
Management assistance for Federal—lead removal activities
will be funded via site-specific cooperative agreements only and
should not be incorporated into Multi-site/activity Cooperative
Agreements
CONTACTS
If you have any questions on funding management assistance
for ERAs, please contact Jan Wine on 382—2443. Questions on
removals should be directed to Cristina Griffin on 382—2307.
cc: Harvey Pippen, GAD
Lisa Karpf, OIG
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Issuance of Administrative Orders for
Immediate Removal Actions
-------
United States nv,ronman1aI PrOteCTiOn Agency I lnteriv,
A Wasnington. DC 2C4G0
OSWER Directive Initiation Request
Ovupnator lnlorm.,ion
at Contact Person Mail Code
T.lephonrNum ev
John COss WH—527 I 475—6770
d OH.c. 0 ousr Aporoved tar Review
Date
0 OERR ow Signature at Olfice recta
o o ill . Q /4 i
Thl•
Issuance of P óninistrative Orders for Irmied.iate R vaJ. Actions
Summary of Otrective
This sets forth guidance cn issuing ?àninistrative Orders for ixruiediate
renioval actions under C 3CL.?. This guidance shculd be used in conjunction
with the recently issued Guidance Met rar um cn the Use ard Issuance
of AOninistrative Orders under Section 106(a) of Ct2 dated Septentber
8, 1983.
Key Words: administrative otders, iiisnediate, guidance•
re tiova1 actions,
Type of O,recUv IM anusi. Policy Osrecrive. Announcement. Of C.J I Status
Guidance raz dun El Final 0 R s.on
0 Orals I D New
I
Does this Directive Suoersede Previous Oitec:ivesP Li Yes J No Does It Supplement Prev,ous Oirecl,vefs l? U Yes Li
I I Yes to Either Question. What Directive (number. ettlel
Review Plan
O -oswe D OUST 0 OECM l Other Sp.pIyl
O OERR -0 OWPE 0 OGC
O osw 0 Regions 0 OPPE
This Reauest Meets OSWER Directives System ormar -
S,gnatureo( Lead Olfic
ql1,( :
Date ‘--‘--
:
Signature at OSWER O.4cives Oftict
Date
a
EPA Form 1315-17(108 5)
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‘S. _. •l I ‘ L rr I C.’I IL 1i AG NC(
W. 5H1NGTON D.C. ZO. 6O
4..
,, .I - . .c r”
FEB 21 1984
- OP iC!C
SCI.IO WASTE ANO £UEmC P4CY A SPONSE
! MO RAN DfJ1I
SUBJECT: issuance of Administrative Orders for Immediate Removal
FROM:
Assistant Administrator
TO: Regional Administrators; Regions I—x
Air & Waste Management Division Directors
Regions III, IV, VI, VII ,. VIII, X
Waste Management Division Directors, Regions I., V
Director, Office of Emergency and Remedial Response, Regjon II
Toxics and Waste Management Division Director, Region IX
Eivjronmental Services Division Directors, Regions I — X
Regional Counsel, Regions I — X
This memorandum sats forth g uidance on issuing Administrative
Orders for immediate removal actions under CERCLIIA. This guidance
should be. used in conjunction with the -recently issued Guidance
Memorandum oi Use and Issuance of Administrative Orders under
Section 106(a) of CERCLA dated September 8, 1983.
Since becoming the As (stant Administrator, OSWER, I have
sought to implement a balanced C 3CLA program which uses both
the administrative and civil judicial. enforcement provisions of
the Act——as well as the Fund——to secure clean up of hazardous
waste sites. One of my primary enforcement goals is to increase
the use of Administrative Orders for immediate removals. Orders
are particularly useful in immediate removal situations, since
they can be issued quickly, can require discrete segments of work
(e.g., surface cleanup) and carry the threat of additional damages
and penalties in the event of non—compliance.
We estimate that Administrative Orders may be apprOpriate for
a significant percentage of immediate removal situations. Increased
resources will. be provided to the Regions, and I expect the Regions
to devote resources to accomo].ishing this goal .of increased -
Administrative Orders for removals.
•In addition, the Regions must develop a satisfactory -
organizational structure if the Administrative Order program is to
succeed. The organization of enforcement personnel varies among
the Regions. The majority of the Regions keep their remedial
and removal personnel in different divisions. Since CERCLA
enforcement has (until now) concentrated heavily on remedial -
sites, most regional technical enforcement personnel have been
assigned to the remedial response units (generally, the Air and
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—2—
! azardous Material Divisions). Personnel responsible for immediate
and planned removals have usually been assigned to the nviron tenta1
services Division which, as a general rule, has not been assigned
enforcement personnel.
Obviously, the ability of a Region to Implement this new
policy requires both close coordination among tne immediate
response staff and their colleagues in the technical enforcement
and regional counsel offices and an organizational structure
capable of developing and issuing quality orders. Regions that
do not currently dedicate technical enforcement staff to their
immediate removal program should assure that appropriate personnel
are in place in the technical enforcement office to implement this
policy and to handle the workload.
. BACKGROUND
CERCLA identifies two types of response actions for which the
Fund can be used: remcval actions and remedial actions. The
National Contingency Plan (NC?) further refines the former category
into immediate and planned removals and describes the process
and procedures for prcceeding with these forms of response. (See
Federal Register 31130; July 16, 1982). P1e se refel to the attached
ippertdtx for n outline of the relevant C!RCLA and NC? provisions
regarding ret. va1 activity, Administrative Orders and enforcement.
Because of the large numbet of sites which pose a health hazard,
the Office of Emergency and Remedial Response (OERR) defines the
category of immediate removals according to the immediacy and
severity of t e hazard to the public health or environment. These
categories establish a guide for the purpose of assessing the
length of time within which the Agency must respond to the event.
Agency response to situations which require immediate response
(e.g., threats of fire, explosion or spills) normally takes place
in a matter of hours or one or two days at the most; Agency response
to other situations (e.g., rusting barrels that have not yet
begun to leak, holding ponds that may overflow with the advent of
the rainy season) normally takes place during a period which may
range from a week to a month.
This guidance is most applicable to the latter situation; i.e.,
the Regions should consider issuing Administrative Orders in situations
when there is at least one week between the time the On—Scene
Coordinator (OSC) determines that an iminediata , removal is warranted
and the time that actual on—site response must begin .
Administrative Orders are a useful enforcement tool in these
types of immediate removals situations, for the following reasons.
First, they encourage private party response, p rticu1arly since it
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—3—
is csw policy to meet, if at all possible, with responsible parties
after the Order is issued i a meeting is reque ted. The results
of an owp analysis of 49 com 1eted immediate removals indicate
that the elapsed time between the request for funds and the start
of site response ranged from eight day s to more than three weeks
for 24 of the sites. This clearly indicates that there is time to
issue Administrative Orders in appropriate situations, and the
process described In this memorandum can be implemented in as
little time as a week, if necessary. Second, removals requfre
discrete units of work (e.g., barrel or contaminated soil removal)
which makes responsible party compliance and Agency compliance
monitoring easier. Third, the costs of immediate removals are
generally moderate; this increases the probability of private
party compliance.
In the event of non—compliance with an Administrative Order,
the Agency is prepared to quickly initiate a Fund—financed response
and seek fines/treble damages from the responsible partiei. Since
the treble damages will be based on the Fund dollars expended, these
situations are pertic la:ly amenable to establishing treble damage
claims, which the Agency will seek to recover in its Sl07
cost recovery actions. (The average obli;aeionfor 110 prior
immediate removals undertaken by the Agency was appEoxithately
S275,000). Issuahce of Adminisrrative Orders for these situations
also may improve the equitable position of the Agency in subsequent
cost recovery cases.
II. CRITERIA FOR ISSUING ADMINISTRATIVE ORDERS
pfrst, of course, the Agency must meet the legal threshold
that an imminent and subsr antial endangernent to public health or the
environment may exist. 1 Information which can be used and evaluated
by the OSC or his supervisor to make this determination include:
1. Notification in accordance with CERCE.A S103 (a), (b) or (C)
2. Investigations by government authorities conducted
pursuant to CERCr .A 5104 Ce) or other statutory authority.
rrhe Agency must be aole to properly document and justify both its
assertion that an immediate and significant risk of harm to, human
life or health or to the environment exists and its choice of the
ultimate response action at a site in ordei to be able to bppose a
challenge to the Order and to successfully li;igate any subsequent
cost recovery action. Adequate documentation onsists of photographs,
samples, monitoring or other documented site analysis. The Agency
should follow chain of custody procedures to maintain the integrity
of samples taken at the site. Please refer to the Cost Recovery
Guidance, issued August 26, 1983 for more detailed guidance. The
Revised Superfund Removal Guidance to be issued in late February -
1984 will also provide additional guidance on im.nediate removal
assessments.
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—4—
3. Notification of a release by a federal or state permit
holder when required by the permit.
4. Inventory efforts or random/incidental observation by
government agencies or the public.
If the facts reach the legal thresholds of CERCLA 5106,
several policy criteria for deciding whether to issue an Order
for an Immediate removal should be considered. The first of
these is the amount of time available before site response must
begin. This determination will usually be made by the OSC. An
Order may be appropriate if there is a minimum of one week available
for issuing the Order and meeting with the recipients (see
further below) between the time of the decision to seek funds
for the immediate removal and the initiation of on—site response.
(Of course if an order can be issued in less than a week the
Regions are not bound by the one week minimurn. However, the
Regions should always attempt to have 4a — 72 hours available
for the recipients to request and conduct a conference.)
A second policy criterion is the number of potential reci—
;ients of the Order and their financial viability. There should
be a manageable number of responsible parties and they should
be collecively capable of undertaking si.te response. The Regions
will use their best judgement to decide what constitutes a
‘manageable number of responsible parties and assess the capability
of the parties to undertake the response for any individual
immediate removal Situation. (For a more lengthy discussion of
criteria to consider when issuing an Administrative Order, please
refer to the Administrative Order guidance.) When there is a
large number of potentially responsible parties, Orders need not
be issued to all of the parties. In this type of situation the
Region should issue the Orders only to those parties most likely
to comply. The Region, however, is flot precluded from issuing
Orders to all the part.ies if it so desires.
These criteria are to be used as general guidelines for deter-
mining whether an Administrative Order should be issued for an
immediate removal. The varying factual circumstances presented
in any potential removal action mandate that each Region conduct
this necessary factual analysis to decide the appropriateness of
an Order.
III. PROCESS FOR ISSU-ING ADMINISTRATIVE ORDERS
The timely devel pment. and issuance of Administrative Orders
for immediate removals will require effective coordination among
the OSC, technical enforcement personnel and the legal counsel
in both the Regions and Headquarters. OSWER will not dictate how
the Regions must organize or adjust personnel in order to
accomplish this task, but it will expect the Regions to have a
system in place which Is capable of implementing an administrative
oider program for im.medi.. e removals.
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—5—
The procedures for developing and issuing orders follow:
The decision by the OSC or his superior to request funds for
an immediate remov..1 also triggers the process for deciding whether
to issue an Administrative Order.
The OSC will inform the technical enforcement branch (or other
appropriate enforcement personnel if no separate branch exists)
and the Regional Counsel that a request for a Fund—financed jmzuedj—
ate removal is being developed. Appropriate personnel in OERR and
owp should also be informed of this action. While the OSC and his
staff prepare the 10—point documenc, 2 technical enforcement personnel
and the Regional Counsel should begin to identify responsible
parties and assess their financial ability to conduct site cleanup.
The OSC or the Regional Counsel will attempt to orally contact
(with written follow—up) potentially responsible parties in order
to secure private—party response in lieu of the Fund. While previous
Agency policy was to proceed with Fund—financed response if the
responsible parties refused to act, the Agency will now issue
administrative orders in appropriate circumstances before initiating
Fund action, so long as the site does not pose an unreasonable
:isk of harm to the public health, welfare or the environment.
Regardless of whether a responsible party agrees o r not to
undertake the removal, development of the 10—point document should
proceed as usual. However, the OSC and technical enforcement staff
(in consultation with the Regional Counsel) shall apply the criteria
cutlined in Part A (above) to recommend to the Regional Administrator
whether to issue an Administrative Order. The decision to issue
the order rests with the Regional Administrator, subject to the
current delegations.
If the Regional Administrator decides to issue an Administra-
tive Order, the Order will be drafted by technical enforcement
personnel with the advice of the Regional Counsel. The technical
information contained in the 10—point document will normally
provide the basis for the Order’s Findings of Fact while the
Agency’s intended response actions will serve as the remedy the
recipient ia. required to implement.
SRequestS for less than $250,000 can be approved by the Regional
Administrator while requests for more than $250,000 require the
approval of OERR. (It is anticipated that within the month, the
Regional Administrators will be delegated the authority to obligate
up to $1 million for removal actions.) The ten point document
Itself must justify its cost estimates and be consistent with the
NC?. With the issuance of the Revised Superfund Removal Guidance,
the 10 point document will become an Action Memorandum.
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—6—
Since Administrative Orders will normally be issued in situa—
tions in which site response is not required for at least one
week, oSWE policy is to provide recipients when possible an
opportunity to meet with Agency personnel to discuss the terms of
the Orderand the means for comp1iance Therefore, the Order
should include the following provisions: 3 .
1. A statement of the imainent and substantial danger
pursuant to 5106 of CERCLA and the risk of harm under
5300.65 of the NC?.
2. A statement of the authority of the issuing official
(normally the Regional Administrator) to issue the
Order and why the recipient is liable under 5107.
3. The steps the recipient must take to comply with the
order, (following the provisions of the
• ten—point document in order to be as specific as
possible)
4. A mandatory timetable for performing and completing
the response. (The timetable should include at least
one short term interim deadline so the Agency will have
the ability if necessary, to demonstrate non—compliance
before the project completion date.)
5..A provision, informing the recipient that• his duty to obey
the terms of the order takes. effect 72 hours ,after he
receives the order.
6. A provision informing the recipient that he may orally
contact the Agency tO request a conference on the
Order. The recipient must follow up his oral request
in writing.
7. A provision specifying a date certain by which responses
teither oral or written), to the Order must be received.
8. A provision which states that EPA reserves the right
to undertake the action if emergency circumstances
dictate such action and that such action in no way
relieves the parties of responsibility for the costs
of such actions.
9. A provision which requires: propex chain of custody
procedures to be followed for any testing and sampling,
adequate recordkeeping of activities (so records may be
used as evidence in any future enforcement case),
cooperation from employees of any contractor who engages
in site activity, and availability of such employees
to the U.S. in preparation and trial of a subsequent
enforcement case.
3 Rerer to tne general Administrative order GulGance for examples
of model orders and conference procedures.
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—7 .-
Under a separate delegations memorandum to the Regions, the
concurrence require ient will be waived for all Administrative
Orders for immediate removals with obligations of $1,000,000 or
less. Within two weecs of issuance of the Order, the Regions are
to send a copy of the final Order to OWPE.
As a matter of policy, in order to increase the likelihood of
compliance,, the Agency encourages the convening of a conferen e
with the recipients of an Administrative Order. Since
Administrative Orders will generally be issued for immediate removal
situations which do not require response in less than one week,
the Agency will normally attempt to hold a meeting with the recipient,
if requested by the recipient. The conference should be
convened on an expedited basis (e.g., within 72 hours after the
Order is issued) if the recipient’ orally requests the conference.
However, the Agency retains the right to waive a conference
if immediate response is warranted because of deteriorating conditions
at the site. The Regional Administrator shall have the authority
to decide whether to eliminate the conference prior to or following
the issuance of the Administrative Order. If the Regional Administrator
waives the opportunity for a personal conference, a regional
representative, must a: least give the parties an opportunity to
e heard by telephone before the effective date of the Order. In
general, conferences Ccncerning removal actions should be used to
clarify the req iremen:s of the Order rather thçn as an opoortunity
•to r e;otiate the requirements.
The Agency must create a good administrative record of its
meetings with the recipient of an Order for either enforcement of
the Order or cost recovery after a Fund—financed cleanup. The
Agency participants should prepare a written summary of the
conference containing:
1. The date and pareicipants.
2. A summary of the significant issues raised and arguments/
data used by the recipient to contest the Order.
3. The result of the conference (e.g. agreements reached
with the recipient, indication from the recipient of
an unwillingness to comply with the Order)
The presiding official, (designated by the Regional
Administrator) must also prepare a statement which addresses any
significant arguments raised by the recipient and recommends whether
any modifications to the Order are warranted. (See the September
8, 1983 AdmInistrative Order Guidance’ for a complete discussion of
the procedures and ground zules for conducting the conference
and the time frames for holding them.)
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—8—
If the recipient agrees to undertake the stipulated response
measures, the agreement may be in the form of a Consent Order. The
OSC will monitor compliance with the Order and recommend additional
enforcement action if the ter:cis of the Cor.sent Order are breached.
If the recipient does not agree to undertake the measures contained
in the Order, the Agency will generally not refer a case to the
Department of Justice to force compliance because of the time
constraints presented by the emergency. Rather, the Fund will be
used for site response and the recipient(s) will be sued for cost
recovery——including punitive damages in appropriate cases.
IV. USE OF THE FUND WHILE THE ADMINISTRATIVE ORDER IS BEING ISSUED
Normally, once an Ord er has been deemed appropriate for an
immediate removal Situation, the CERCLA Fund shall not be. used to
undertake a federally—funded immediate removal during the time
period in which the Agency develops the Order, issues it to the
responsible party, and COndUCtS the conference.
S
However, if site conditions deteriorate—— presenting a corre-
sponding increase in the threat that the site pres.ents—— the Fund can
e used for response while the Administrative Order process continues.
In such instances, the Regional Administrator can approve the use
of Funds below S250K and request the Assistant Ad tinistratot, OSWER,
to release fw ds if the response work will be greater than S250K. 4
The Administi _tive Order process should continue since the parties
may undertake site response at the next convenient break in activity.
Thus, if there are deteriorating conditions at the site, the
dSC should continue all steps necessary for undertaking a Fund—
financed resrnse while the Order is being developed. The 10—point
document sho id be prepared and receive the concurrence of all
officials up through the Regional Administrator or the Director,
OERR.
However, no actual obligation of Funds for Site response will
normally occur until after the Order has been issued and the con-
ference has. been held. Since the Order will only be issued in
situations where an irnnediate response can be delayed, there will
normally be time to see the Administrative Order process through
to conclusion. The conference must be held within the time period
specified in the Order (which will correspond to the time the
Agency has .before the response activity needs to begin). Since
.‘.
. It deteriorating conditions require the Fund to respond wnile
the Order is still being issued, OSWER assumes that the Fund will
take all response actions necessary at the site (e.g., remove all
barrels, not merely those that may be about to leak).
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—9—
the timing of the obligation will vary according to the estimated
time needed to mobilize equipment and p rscnnei, the OSC should
work closely with the technical enforcement and Re;lonal Counsel
stiff during the drafting of the Order to assure that the time
riod established for issuing the Order s synchronized with the
time requirements for site response.
If the conference does not result in private par ty response——or
if changing conditions at the site require accelerated response——the
Fund—financed immediate removal will take place. If Fund—financed
activity does begin, the Order may be written to require the potentially
responsible parties to undertake site activity at the next convenient
break point in activity. If the parties still fail to undertake
the site response activity, enforcement efforts will emphasize cost
recovery with the additional imposition of fines/penalties as
appropri ate.
V. COST RECOVERY
The Agency will ncrmally.nct initiatea civil action in the
event of non—compliance with an Order but instead will seek to
recover costs and damages after a Fund—financed response. Therefore,
while enforcement personr. l are carrying out the Administrative
Order process, they should also be aware of the equirements for a
successful cost recovery action. They must be able to document
the following factors (some of which are the same ones necessary
for the issuance of the Administrative Order i se1f).
1. The need for the Immediate removal (evidence of an imminent
and substantial endangerment or threat of endangerment
to public health, welfare or the environment)
2. Liability of the responsible parties (evidence to support
the contention that the parties meet the liability standard
of Sl07)
3. Proof that the Fund—financed response activity was not
inconsistent with the requirements of the NCP.
4. Documentation of all eligible costs for site—specific Fund
expenditures.
Enforcement personnel must assure sufficient documentation of
these factors.from the period in which the 10—point document is
developed and Funds are obligated through the actual clean up of
the site. These cost recovery requirements must be met regardless---
of whether the e will be a simple cost recovery action (if no
Administrative Order is issued) or an action for response costs plus
damages (if the Order is not complied with). The Agency must
assure that evidence is preserved for any subsequent enforcement
action. Proper chain of custody procedures must be used for any -
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—10—
sampling or testing, and adequate records of site activity must be
kept. Enployees of any contractor used for site activity must
cooperate with and be made available to the U.S. In preparation
and t:ial of any subsequent enforcement action. ‘Enforcement,
program and legal offices should work together throughout the
case development.
VI. FOLLOW—UP
This guidance represents a substantial departure from prior
practices and I expect that It will take some time to implement.
For these reasons, I will be reviewing all immediate removals
referred to Headquarters for compliance with this guidance. In
addition, for immediate removals under S250,000, I will ask the
Directors. OWPE and OERR to review the compliance with this guidance
quarterly, and to advise me accordingly.
Appendix
c : Gene Lucero, OW ?!
William Hedenan, O!RR
irk Sniff, OECM
Dan Berry, 0CC
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APPENDIX
Authority/Requirements/Enforcemene of Administrative Orders
for Removal Actions under CERCLJ\
Under 5106(a) of CZRCE.A:
If, EPA, acting on behalf of the President:
determines that there may be an imminent and substantial
endangerment to the public health or welfare or the
environment because of
an actual or threatened release of a hazardous substance
from a facility
may, after notice to the affected state,
issue such orders as may be necessary to protect
public health and welfare and the environment.
Under 5’106(b) of CZRCLA:
EPA may take action in the appropriate U.S. district
court, against any person who willfully violates or
fails or refuses to comply with any Order issued under
5106(a), to enforce such order and
may fine such person not more than 55,000 for each day
such violations occur Or such failure to comply continues.
tinder 5107(c)(3) of CERC [ .A:
Any person who is liable for a release or threat of release
of a hazardous substance that:
fails without sufficient cause to properly provide
removal action upon order of the President pursuant to
S106 -
may be liable to the United States for punitive damage in
an amount at least equal to and not more than- three times ,
the amount of any costs incurred by the Fund as a result
of such failure to take proper action.
Civil action may be commenced against any such person to
recover the punitive damages. These punitive damages shall-_._.
be in addition to any costs recovered fromn’such person
pursuant to S112Cc). - -
Any monies received in punitive damages shalL be deposited
in the Fund. -
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AP?Z jor;c PACE 2
National Contingency Plan Reguirements for Ixmnedjate Removals
Under 5300.65 of the NC?:
Imediate Removal action is appropriate when the lead agency
determines that:
the initiation of the removal action will, prevent or
mitigate Immediate and significant risk of harm to
human life or health or to the environment from such
situations as:
1. Human, animal, or food chain exposure to
acutely toxic substances
2. Contamination of drinking water supply
- 3. Fire and/cr explosion -
4. Similarly acute situations
Immediate removal action may include but are not limited to:
l.-Colle tjn and analyzing samples to determine
the source and dispersion of the hazardous
• substance
2. Providing alternative-water supplies
3. Installing security fencing. or other measures
to limit access
4. Controlling the source of the release
5. Measuring and sampling
6. Moving hazardous substances off—site for storage,
destruction, treatment or disposal
7. Placingphvsica l barriers to deter.the spread
of the release
8 ..Contro l ling the water disdharge from an upstream
impoundment
9. Recommending to the appropriate authorities
the evacuation of threatened individuals
...
10. Using chemicals and other materials in accordance
with Supart H to restrain the spread of the
substance and mitigate its effects
11. Executing damage control or salvage operations
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Prqcedures for Authorizing Application
for CivilSearch Warrants Under CERCLA
-------
Memoiitndum ___
Subsci Oste
Procedures for Authorizing Application prj1 3, 1987
for Civil Search Warrants Under CERCLPI
To F )‘ — ----
All EES Attorneys Dav —T. Buente, Jr.
Chie , Ei vironmental
En orci ment Section
Under S 104(e) of CERCLA, as amended by SARA, the
United States may seek access by warrant, administrative order,
or court order. If access is obtained by administrative order,
the appropriate documents are issued by relevant client agencies.
If access is to be obtained by court order, then the Assistant
Attorney General of the Land and Natural Resources Division must
approve the complaint, upon referral from the relevant client
agency according to ordinary procedures. For access to be sought
through application on a civil CERCLA warrant, 1 the instant
memorandum will confirm the procedures to be used by the
Department of Justice.
Under ¶5.320-A-2 of the U.S. Attorney’s Manual,
application for warrant under CERCIA may not be handled
unilaterally by the U.S. Attorneys. Applications for such
warrants must be coordinated through the Environmental
Enforcement Section.
Clearance through the Environmental Enforcement Section
is important for a variety of reasons. First, the nature of the
governmental activities involved under CERCLA civil warrants may
be much broader and last considerably longer than an inspection
under the other federal environmental regulatory statutes.
Typically the latter require only a few days or weeks to conduct
routine environmental sampling. Under CERCL , access may be
sought under a warrant for not only sampling, but even simple
1 The memorandum does not cover procedures for seeking a
criminal search warrant where a CERCLA violation may be
involved. All such matters are to be referred to the Director,
Environmental Crimes Unit, EES.
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—2—
removal—type activity, e.g., security/fencing, limited drum
removal. The greater relative complexity of the governmental
activity involved can be expected to provoke more challenges to
CERCLA civil warrants than those under other statutes and the
issues raised by CERCL warrants may be much more complex.
Second, this is a relatively new and vital area of the law. We
must ensure that maximum efforts are made to develop this
critical area of the law in an excellent manner. EES lawyers
must make all reasonable efforts to ensure that exercises of the
civil warrant authority under CERCLA will be vindicated by the
federal courts, through proper presentation of facts and legal
arguments by Departmental attorneys with experience in this area.
Finally, since our experience has shown that judicial challenges
to civil CERCI warrants tend to move very rapidly, sometimes on
an emergency motion basis, EES needs to work closely with client
agencies on these matters so that the Division’s Appellate
Section is advised and prepared with sufficient lead time to
expeditiously address appellate proceedings.
Coordinating these warrant applications through EES
must be done on an expedited basis so that client agencies’
program objectives are achieved. Moreover, our resources must
not be consumed by duplicative work. Balancing the needs for
careful warrant application preparations with that for
expeditious handling of these matters, we will use the following
procedures:
1. The client agency will telephonically notify the
relevant EES Assistant Chief or Senior Lawyer when the Agency
plans to seek a civil warrant.
2. The client agency will follow-up the request by
expeditiously transmitting a short memorandum concisely
explaining why the warrant is needed with a draft copy of the
warrant application and supporting affidavits.
3. Upon receipt of the telephonic notification or
written request, whichever first occurs, the EES Assistant Chief
or Sr. Lawyer will arrange for either an EES staff attorney or an
AUSA to handle the review and prosecution of the application.
Unless a.dispute develops between EES/AUSA personnel and the
client agency, the EES Assistant Chief or Sr. Lawyer may approve
the application. If such’a dispute develops, it must be brought
to the attention of the Chief or Deputy thief, LES for
resolution.
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4. Handling of these matters is to be afforded
priority on our docket. Moreover, the Chief or Assistant Chief
of the Appellate Section shall be advised of each application
requesEby the EES Assistant Chief or Sr. Lawyer as soon as
possible after notification by the client agency, so that
Appellate can be prepared to handle expeditiously appeal matters.
5. All civil actions to enforce civil CERCL warrants,
by way of application for civil contempt or other judicial
orders, shall be authorized in writing by the Assistant Attorney
General. Such actions shall be afforded highest priority on the
docket.
For general advice/guidance on handling CERCL& civil
warrant matters, contact John Fleuchaus, OR —Waste, 382—3109.
Attachment
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Entry and Continued Access
Under CERCLA
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• 1 ,iIO Sr 4 ? ,
, I
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUN —5 198T
OSWER DIRECTIVE
9829.2
OFFICE Of
ENFORCEMENT Af O
COMPUA’ICt MONITORING
MEMORANDUM
SUBJECT: Entry and Continued Access Under CERCLA
FROM: Thomas L. Adams, Jr.
Assistant Administrator -
TO: -Regional Administrators I-X
Regional Counsels I-X
I. INTRODUCTION
This memorandum sets forth EPA’s policy on entry and
continued access to facilities by EPA officers, employees, and
representatives for the purposes of response and civil enforce-
ment activities under CERCLA. 1/ In short, the policy recommends
that EPA should, in the first Instance, seek to obtain access
through consent. Entry on consent is preferable across the full
range of onsite activities. If consent is denied, EPA should
use judicial process or an administrative order to gain access.
The appropriate type of judicial process varies depending on
the nature of the onsite activity. When entry is needed for
short-term and non-intrusive activities, an ex parte , judicial
warrant should be sought. In situations inv Tving long-term or
intrusive access, EPA should generally file suit to obtain a
court order.
The memorandum’s first section addresses the recently amended
access provision in CERCLA. The memorandum then sets forth EPA
policy on obtaining entry and the procedures which should be
used to implement this policy, including separate discussions on
consent, warrants, court orders, and administrative orders.
1/ This policy does not address information requests under
Section l04(e)(2).
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It. STATUTORY AUTHORITY
EPA needs access to private property to conduct investiga-
tions, studies, and cleanups. The Superfund Amendments and
Reauthorization Act of 1986 (SARA) explicitly grants EPA 2/ the
authority to enter property for each of these purposes. Section
104(e)(1) provides that entry is permitted for “determining the
need for response, or choosing or taking any response action
under this title, or otherwise enforcing the provisions of this
title.”
SARA also establishes a standard for when access may be
sought and defines what property may be entered. EPA may exercise
its entry authority “if there is a reasonable basis to believe
there may be a release or threat of a release of a hazardous
substance or pollutant or contaminant.” S 104(e)(1). SARA,
however, does not require that there be a release or threatened
release on the property to be entered. 3/ Places and properties
subject to entry under Section 104(e) include any place any
hazardous substance may be or has been generated, stored, treated,
disposed of, or transported from; any place a hazardous substance
has or may have been released; any place which is or may be
threatened by the release of a hazardous substance; or any place
where entry is needed to determine the need for response or the
appropriate response, or to effectuate a response action under
CERCLA. S 104(e)(3). EPA is also authorized to enter any place
or property adjacent to the places and properties described in
the previous sentence. S 104(e)(1).
EPA is granted explicit power to enforce its entry authority
in Section 104(e)(5). Under that provision EPA may either issue
an administrative order directing compliance with an entry request
or proceed immediately to federal district court for injunctive
relief. Orders may be issued where consent to entry is denied.
Prior to the effective date of the order, EPA must provide such
notice and opportunity for consultation as is reasonably appro-
priate under the circumstances. If EPA issues an order, the
order can be enforced in court. Where there is a “reasonable
basis to believe there may be a release or threat of a release of -
a hazardous .ubstance or pollutant or contaminant,” courts are
instructed to, enforce an EPA, request or order unless the EPA
2/ Although CERCLA and SARA confer authority upon the President
that authority has been delegated to the EPA Administrator.
Exec. Order No. 12580, 5 2(g) and (i), 52 Fed. Reg. 1923 (1987).
3/ The House Energy and Commerce bill at one point contained
— this limitation. H.R. Rep. No. 99-253 Part 1, 99th Cong .,. 1st
Sess., 158 (1985). This limitation, however, was dropped prior to
introduction of the bill for floor debate. See H.R. 2817. 99th
Cong., 1st Sess., 131 Cong. Rec. H10857 (December 4, 1985).
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“demand for entry or inspection is arbitrary and capricious, an
abuse of discretion, or otherwise not in accordance with law.”
§ 1 04(e)(5). The legislative history makes clear that courts
should enforce an EPA demand or order for entry if EPA’s finding
that there is a reasonable basis to believe there may be a release
or threat of release is not arbitrary and capricious. 132 Cong.
Rec. S14929 (October 3, 1986) (Statement of Sen. Thurmond); 132
Cong. Rec. H9582 (October 8, 1986) (Statement of Rep. Glicknan).
See United States v. Standard Equlyment, Inc. , No. C83-252M (W.D.
Wash. November 3, 1986). In additLon, a penalty not to exceed
$25,000/day may be assessed by the court for failure to comply
with an EPA order or the provisions of subsection (e).
Finally, Section 104(e)(6) contains a savings provision
which preserves EPA’s power to secure access in “any lawful
manner.” This broad savings provision is significant coming
in the wake of the Supreme Court’s holding that:
When Congress invests an agency with enforce-
ment and investigatory authority, it is not
necessary to identify explicitly each and every
technique that may be used in the course of
executing the statutory mission.
Regulatory or enforcement authority
generally carries with it all the modes of
inquiry and investigation traditionally employed
or useful to execute the authority granted.
Dow Chemical Co . v. United States , 90 L.Ed. 2d 226, 234 (1986). 4/
One lawful means of gaining access covered by this paragraph is
use of judicially-issued warrants. See S. Rep. No. 99-11, 99th
Cong. 1st Sess. 26 (1985).
In numerous instances prior to the passage of SARA, EPA
obtained court rulings affirming its authority to enter property
to conduct CERCLA activities. 5/ Following enactment of SARA,
4/ See also, Mobil Oil Corp . v. EPA , 716 F.2d 1187, 1189 (7th
Cir. 1983), cert . denied, ,466 U.S. 980 (1984) (EPA authority
to sample effluent under Section 308 of the Clean Water Act
broadly construed); CEDs, Inc . v. EPA , 745 F.2d 1092 (7th Cir.
1984), cert. denied , 471 U.S. 1015 (1985).
5/ United States v. Pepper Steel and Alloy, Inc. , No. 83-1717-
CIV-EPS (S.D. Fla. October 10, 1986); Bunker Limited Partnership
v. United States , No. 85-3133 (D. Idaho October 21, 1985); United
Statesv. Coleman Evans Wood Preserving Co. , No. 85-211-CIV-J-16
(M.D. Fla. June 10, 1985); United States v. Baird & McGuire
Co . No. 83-3002-Y (D. Mass. May 2, 1985); United States v. United
Nuclear Corp. , 22 ERC 1791, 15 ELR 20443 (D.N.M. April 18, 1985).
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several courts have ordered siteowners to permit EPA access.
United States v. Long , No. C-l-87-167 (S.D. Ohio May 13, 1987);
United States v. Dickerson , No. 84-76-VAL (M.D. Ga. May 4, 1987);
United States v. Standard Equipment, Inc. , No, C83-252M (W.D.
Wash. Nov. 3, 1986). Further, the one adverse ruling on EPA’s
right of access has been vacated by the Supreme Court. Outboard
Marine Corp . v. Thomas , 773 F.2d 883 (7th Cir. 1985), vacated ,
93 L. Ed. 2d 695 (1986).
itt. EPA ACCESS POLICY
EPA needs access to Sites for several types of activities,
including:
o preliminary site investigations;
o removal actions;
o RI/FSs; and
o remedial actions.
Within each of these categories, the scope of the work and the
time needed to complete that work may vary substantially. This
memorandum sets Agency policy on what means should be used to
gain access over the range of these various activities.
EPA may seek access through consent, warrant, administrative
order, or court order. Consent is the preferred means of gaining
access for all activities because it is consistent with EPA policy
of seeking voluntary cooperation from responsible parties and
the public. In certain circumstances, however, the Region should
consider obtaining judicial authorization or issuing an admini-
strative order in addition to obtaining consent. For example,
where uncertainty exists whether a siteowner will continue to
permit access over an extended period, reliance on consent alone
may result in a substantial delay if that consent is withdrawn.
When consent is denied, EPA should seek judicial authori-
zation or should issue an administrative order, If the judicial-- - -
route is chosen, EPA may seek an ex parte warrant or a court
order. Warrants are traditionally granted for short-term entries.
Generally, warrants should not be used when the EPA access will
involve long-term occupation or highly intrusive activities.
Clearly, warrants are appropriate for preliminary site investiga-
tions. On the other hand, because of the long, involved nature
of remedial actions, access for such projects should be sought
through a request for a court order. Neither removals nor RI/FSs,
however, can be rigidly matched with a given judicial access
procedure. Depending on the activities to be undertaken and the
circumstances at the site, either a warrant or a court order may
be appropriate.
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In deciding whether to use a warrant or a court order when
access is needed for a removal or to conduct a RI/FS, the follow-
ing general principles should be considered. First, if the
activity will take longer than 60 days a court order normally is
appropriate. Second, even if the activity will take less than 60
days, when the entry involves removal of large quantities of soil
or destruction of permanent fixtures, a court order may again be
appropriate. Finally, warrants should not be used if EPA action
will substantially interfere with the operation of onsite business
activities. These issues must be resolved on a case-by-case basis.
If EPA needs to gain access for a responsible party who has
agreed to undertake cleanup activities under an administrative
order or judicial decree, EPA may, in appropriate circumstances,
designate the responsible party as EPA’s authorized representative
solely for the purpose of access, and exercise the authorities
contained in Section 104(e) on behalf of the responsible party.
Such a procedure may only be used where the responsible party
demonstrates to EPA’s satisfaction that it has made best efforts
to obtain access. A further condition on the use of this procedure
is that the responsible party agree to indemnify and hold harmless
EPA and the United States for all claims related to injuries and
damages caused by acts or omissions of the responsible party.
The responsible party should also be advised that the expenses
incurred by the government in gaining access for the responsible
party are response costs for which the responsible party is liable.
Before designating any responsible party as an authorized repre-
sentative, the Region should consult with the Office of Enforcement
and Compliance Monitoring.
IV. ACCESS PROCEDURES
A. Entry on Consent
1. General Procedures
The following procedures should be observed in seeking
consent:
Initial Contact . Prior to visiting a site, EPA personnel 6/
should cpnsider contacting the siteowner to determine if
consent will be forthcoming. EPA personnel should use this
opportunity to explain EFA’ access authority, the purpose
for which entry is needed, and the activities which will be
conducted.
6/ As used in this guidance, the term “EPA personnel” includes
contractors acting as EPA’s authorized representatives.
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Arrival . EPA personnel should arrive at the site at a
reasonable time of day under the circumstances. In most
instances this will mean during normal working hours. When
there is a demonstrable need to enter a site at other times,
however, arrival need not be limited to this timeframe.
Entry must be reasonable given the exigencies of the situation.
Identification . EPA personnel should show proper identifi-
cation upon arrival.
Request for Entry . In asking for consent, EPA personnel
should state the purpose for which entry is sought and
describe the activities to be conducted. EPA personnel
should also present a date-stamped written request to the
owner or person-in-charge. A copy of this request should
be retained by EPA. Consent to entry must be sought
from the owner 7/ or the person-in-charge at that time.
If practicable under the circumstances, consent to entry
should be memorialized in writing. A sample consent form is
attached. Although oral consents are routinely approved by the
courts, a signed consent form protects the Agency by serving as
a permanent record of a transaction which may be raised as a
defense or in a claim for damages many years later. If a site-
owner is unwilling to sign a consent form but nonetheless orally
agrees to allow access, EPA should document this oral consent by
a follow-up letter confirming the consent.
Since EPA contractors often are involved in gaining access
in the first instance, the Regions should ensure that their
contractors are acquainted with these procedures.
2. Denial of Entry
If consent is denied, EPA personnel or contractors, before
leaving, should attempt to determine the grounds for the denial.
EPA personnel, however, should not threaten the siteowner with
penalties or other monetary liability or make any other remarks
which could be construed as threatening. EPA personnel may
explain EPA’s statutory access authority, the grounds upon which
this authority may be exercised, and that the authority may be
enforced in court.
7/ If EPA’s planned site activities will not have a physical
effect on the property, EPA generally need not seek consent
from the owner of leased property where the lessee is in pos-
session. The proper person in those circumstances is the lessee.
But where EPA entry will have a substantial physical effect on
the property, both the lessee and the property-owner should be
contacted since in this instance interests of both will be
involved.
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—7—
3. Conditions Upon Entry
Persons on whose property EPA wishes to enter often attempt
to place conditions upon entry. EPA personnel should not agree
to conditions which restrict or impede the manner or extent of an
inspection or response action, impose indemnity or compensatory
obligations on EPA, or operate as a release of liability. The
imposition of conditions of this nature on entry should be treated
as denial of consent and a warrant or order should be obtained.
See U.S. EPA, General Counsel Opinions, “Visitors’ Release and
Hold Harmless Agreements as a Condition to Entry of EPA Employees
on Industrial Facilities,” Gen’l and Admin. at 125 (11/8/72).
If persons are concerned about confidentiality, they should be
made aware that business secrets are protected by the statute
and Agency regulations. 42 U.S.C. § 9604(e); 40 C.F.R. S 2.203(b).
EPA personnel should enter into no further agreements regarding
confidentiality.
B. Warrants
1. General Procedures
To secure a warrant, the following procedures should be
observed:
Contact Regional Counsel . EPA personnel should discuss
with Regional Counsel the facts regarding the denial of
consent or other factors justifying a warrant and the
circumstances which give rise to the need for entry.
Contact Department of Justice . If after consultation with
Regional Counsel a decision is made to seek a warrant, the
Regional Counsel must contact directly the Environmental
Enforcement Section in the Land and Natural Resources Division
at the Department of Justice. 8/ The person to call at
the Department is the Assistant Chief in the Environmental
Enforcement Section assigned to the Region. The Assistant
Chief will then arrange, in a timely manner, for the matter
to be handled by either an Environmental Enforcement Section
attorney or a U.S. Attorney. The Region must send to the-
Environmental Enforceme,nt Section, by Magnafax or other
8/ This procedure is necessary to comply with internal
— Department of Justice delegations of authority. Referral
to a local U.S. Attorney’s office is not sufficient for CERCLA
warrants. The Environmental Enforcement Section of the Department
of Justice must approve all warrant applications. (See Memorandum
from David T. Buente, Jr. to All Environmental Enforcement
Attorneys, “Procedures for Authorizing Applications for Civil
Search Warrants Under CERCLA” (4/3/87) attached).
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expedited means, a draft warrant application and a short
memorandum concisely stating why the warrant is needed.
Prepare Warrant Ap?lication . The warrant application must
contain the followLng :
1) a statement of EPA’s authority to inspect;
(see S It, supra)
2) a clear identification of the name and location
of the site and, if known, the name(s) of the
owner and operator of the site;
3) a statement explaining the grounds for a finding
of a reasonable basis for entry (i.e., a reasonable
basis to believe that there may be a release or
threatened release of a hazardous substance or
pollutant or contaminant) and the purpose for entry
(i.e., determining the need for response, or chooainl
or taking any response action, or otherwise enforcing
CERCLA);
4) affidavits supporting the asserted reasonable basis
for entry and describing any attempts to gain access
on consent, if applicable; and
5) a specific description of the extent, nature, and
timing of the inspection;
Following preparation of the warrant application, the
Justice Department attorney will file the application with
the local U.S. Magistrate.
EPA may ask the Justice Department attorney to seek the
assistance of the United States Marshals Service in executing the
warrant where EPA perceives a danger to the personnel executing
the warrant or where there is the possibility that evidence will
be destroyed.
2.-Reasonable Basis for Entry -
A warrant for access on a civil matter may be obtained upon
a showing of a reasonable basis for entry. This reasonable
basis may be established either by presenting specific evidence
relating to the facility to be entered or by demonstrating that
the entry is part of a neutral administrative inspection plan.
A specific evidence standard is incorporated in SARA as a
condition on EPA ’s exercise of its access authority: EPA must
have “a reasonable basis to believe there may be a release or
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threat of a re].ease of a hazardous substance or pollutant or
contaminant.” § 104(e)(1). SARA’s express specific evidence
standard is consistent with how courts have formulated the
specific evidence test in the absence of statutory guidance.
E.g., West Point-Pepperell, Inc . v. Donovan , 689 F. 2d 950, 958
(11th Cir. 1982) (there must be a “showing of specific evidence
sufficient to support a reasonable suspicion of a violation”).
In drafting a warrant application, conclusory allegations
regarding the specific evidence standard under subsection 104(e)
will not suffice. Courts generally have refused to approve
warrants where the application contains mere boilerplate asser-
tions of statutory violations. Warrant applications have been
granted, on the other hand, where the application contained
detailed attestations by government officials or third-party
complaints which have some indicia of reliability. Ideally,
EPA warrant applications should contain an affidavit of a person
who has personally observed conditions which indicate that there
may be a release or threat of a release of a hazardous substance.
If they are available, sampling results, although not required,
should also be attached. Warrant applications based on citizen,
employee, or competitor complaints should include details that
establish the complainant’s credibility. 9/
C. Court Orders
The provisions in CERCLA authorizing EPA access may be
enforced by court order. To obtain a court order for entry, the
Region should follow the normal referral process. If only access
is required, the referral package can obviously be much abbrev-
iated. If timing is critical, EPA HQ will move expeditiously
and will refer the case orally if necessary. The Regions, how-
ever, should attempt to anticipate the sites at which access may
prove problematic and should allow sufficient Lead time for the
referral process and the operation of the courts. The Regions
should also not enter lengthy negotiations with landowners over
access. EPA and DOJ are prepared to litigate aggressively to
establish EPA’s right of access.
9/ If information gathered ‘ in a civil investigation suggests
— that a criminal violation may have occurred, EPA personnel
should consult the guidance on parallel proceedings. (Memorandum
from Courtney Price to Assistant Administrators et al., “Policy
and Procedures on Parallel Proceedings at the Environmental
Protection Agency” (1/23/84)). Use of CERCLA’s information-
gathering authority in criminal investigations is addressed in
separate guidance. (Memorandum from Courtney M. Price to Assistant
Administrators et al., “The Use of Administrative Discovery
Devices in the Development of Cases Assigned to the Office of
Criminal Investigations” (2/16/84)).
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Prior to seeking a court order, EPA should request access,
generally in writing, and assemble the record related to access.
The showirrg necessary to obtain a court .order is the same as for
obtaining a warrant: EPA must show a reasonable basis to believe
that there may be a release or a threat of a release of a hazardous
substance or pollutant or contaminant. An EPA finding on whether
there is reason to believe a release has occurred or is about to
occur must be reviewed on the arbitrary and capricious standard.
S 104(e)(5) (B)(i). If the matter is not already in court, EPA
must file a complaint seeking injunctive and declaratory relief.
Simultaneous to filing the complaint, EPA may, if necessary,
file a motion, supported by affidavits documenting the release
or threatened release, requesting an immediate order in aid of
access. If the matter is already in litigation, EPA may proceed
by motion to seek an order granting access. 10/
In a memorandum supporting EPA’s request for relief it
should be made clear that by invoking judicial process, EPA is
not inviting judicial review of its decision to undertake response.
action or of any administrative determinations with regard to the
response action. Section 113(h) of SARA bars judicial review
of removal or remedial action except in five enumerated circum-
stances. A judicial action to compel access is not one of the
exceptions. Statements on the floor of the House and the Senate
confirm that EPA enforcement of its access authority does not
provide an opportunity for judicial review of response decisions.
Senator Thurmond, chairman of the Judiciary Committee, remarked
that when EPA requests a court to compel access “there is no
jurisdiction at that time to review any response action . .
10/ Parenthetically, it should be noted that the broad equitable
— power granted to courts in Section 106 can also be relied
on to obtain a court order. An additional source of authority
for courts in this regard is the All Writs Act, 28 U.S.C. S 1651.
The Act authorizes federal courts to “issue all writs necessary
or appropriate in aid of their respective jurisdictions . . . .“
28 U.S.C. S 1651. This authority “extends under appropriate
circumstances, to persons who, though not parties to the original..
action or engaged in wrongdoing are in a position to frustrate
the implementation of a court order . . . .“ United States v. New
York Telephone Co. , 434 U.S. 159, 174 (1977). Thus, the All Writs
Act may prove useful as a means of compelling persons not a party
to a consent decree to cooperate with EPA and other settling
parties in execution of the decree. The use of the All Writs
Act, however, may be limited in light of the Supreme Court’s
interpretation of the Act in Pennsylvania Bureau of Correction v.
United States Marshal Service, 88 L. Ed. 2d 189 (1985).
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— 11 —
(T]he court may only review whether the Agency’s conclusion that
there is a release or threatened release of hazardous substances
is arbitrary or capricious.” 132 Cong. Rec. S14929 (October 3,
1986) (Statement of Sen. Thurmond); 132 Cong. Rec. 119582
(October 8, 1986) (Statement of Rep. Glickman); see United States
v. Standard Equipment, Inc. , No. C83-252M (W.D. Wash. Nov. 3, 1986).
D. Administrative Orders
If a siteowner denies an EPA request for access, EPA may
issue an adminstrative order directing compliance with the
request. § 104(e)(5)(A). Each administrative order must include
a finding-by the Regional Administrator that there exists a
reasonable belief that there may be a release or threat of release
of a hazardous substance and a description of the purpose for the
entry and of the activities to be conducted and their probable
duration. The order should indicate the nature of the prior
request for access. Further, the order should advise the re- -
spondent that the administrative record upon which the order was
issued is available for review and that an EPA officer or employee
will be available to confer with respondent prior to the effective
date of the order. The length of the time period during which
such a conferences may be requested should be reasonable under
the circumstances. In deciding what is a reasonable time period,
consideration should be given to the interference access will cause
with onsite operations, the threat to human health and the environ-
ment posed by the site, and the extent of prior contacts with the
respondent. The order should advise the respondent that penalties
of up to $25,000 per day may be assessed by a court against any
party who unreasonably fails to comply with an order. S 104(e)(5).
Following the time period for the conference and any conference,
the issuing official should send a document to the respondent
summarizing any conference, EPA’s resolution of any objections,
and stating the effective date of the order.
If, following issuance of an administrative order, the site-
owner continues to refuse access to EPA, the order may be enforced
in federal court. EPA should not use self-help to execute orders.
Courts are required to enforce administrative orders where there
is a reasonable basis to believe that there may be a release or
threat of a release of a hazardous substance. EPA’s determination
in this regard must be upheld unless it is arbitrary and capricious.
§ 104(e)(5)(B)(i). EPA will seek penalties from those parties who
unreasonably fail to comply with orders.
All administrative orders for access must be concurred on by
the Office of Enforcement and Compliance Monitoring prior to
issuance.
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DISCLAIMER
The licies and procedures established in this document are
intended solely for the guidance of government personnel. They
are not intended, and cannot be relied upon to create any rights,
substantive or procedural, enforceable by any party in litigation
with the United States. The Agency reserves the right to act at
variance with these policies and procedures and to change them at
any time without public notice.
Attachments
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CONSENT FOR ACCESS TO PROPERTY
Name:
Address of Property: _________________________
I consent to officers, employees, and authorized
representatives of the United States Environmental Protection
Agency (EPA) entering and having continued access to my
property •for the following purposes:
[ the taking of such soil, water, and air samples as may
be determined to be necessary;]
[ the sampling of any solids or liquids stored or disposed
of on site;]
[ the drilling of holes and installation of monitoring wells
for subsurface investigation;]
(other actions related to the investigation of surface or
subsurface contamination;]
[ the taking of a response action including . . . .J
I realize that these actions by EPA are undertaken pursuant
to its response and enforcement responsibilities under the
Comprehensive Environmental Response, Compensation and Liability
Act (Superfund), 42 U.S.C. 5 9601 et seq.
This written permission is given by me voluntarily with
knowlege of my right to refuse and without threats or promises
of any kind.
Date Signature
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Interim Guidance on Notice Letters,
Negotiations, and Information Exchange
-------
tO I’lip•
f UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
J WASHINGTON. O.C.
9834.10
T I 9 1987
O.PICI oP
SOLID WAITS AND IMS OSNCY AS$ONSL
MEMORANDDM
SUBJECT: Transmittal of Notice ptter Guidance
?ROM: Gene r ucero, Director ( L,i ø4D
Office of Waste Progra a En orcement
TO: Addressees
Attached is the “Interim Guidance on Notice Letters,
Negotiations, and Information Exchange.” Note that Appendix C
containing model notice letters is not included in this package,
but will be distributed under separate cover in the next couple
of weeks.
Attachment
Addressees:
Directors, Waste Management Divisions, Regions I,IV,V,VIt,VIII
Director, Emergency and Remedial Response Division, Region II
Director, Hazardous Waste Management Division, Region III
Directors, Air and Waste Management Division, Regions II,VI
Director, Toxics and Waste Management Division, Region IX
Director, Hazardous Waste Division, Region X
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9834 1 0
INTERIM GUIDANCE ON NOTICE LETTERS, NEGOTIATIONS,
AND INFORMATION EXCHANGE
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9834.10
Table of Contents
I. Introduction
II. Purpose and Scope of Guidance
III. Statutory Authority
A. Settlements
B. Special Notice Procedures and Information Rile...
IV. Information Exchange
A. Information Requests
B. Information Release
V. Notice Litters and Negotiation Moratorium for RI/PS and
RD/RA
• A. Purpos. of Notice Letters
B. General Notice Letter
1. Whether to Issue General Notice
2. Timing of General Notice
3. Recipients bf General Notice
4. Contents of General Notice
C. RI/IS and AD/RA Special Notice Letters
1. Whether to Issue RI/IS and RD/RA Special Notice
2. Notifying PRP5 When Not Appropriate to Issue
RI/PS and RD/P.A Special Notice
3. DOJ Role in RI/PS and RD/RA Negotiations
4. Timing of RI/PS Special Notice
5. Timing of RD/RA Special Notice
6. Recipients of RI/PS and RD/P.A Special Notice
7. Contents of RI/PS and RD/RA Special Notice
D. Conclusion of Negotiation Moratorium and Deadline
Management for RI/IS and RD/RA
VI. Notice Litters and Negotiation Moratorium for Removal
Actions
A. Notice Litters
1. Whether to Issue Notice for Removals
2. When to Use Special Notice Procedures for
Removals
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9834.10
3. Notifying PRPs When Not Appropriate To Utilize
Special Notice Procedures for Removals
4. DOJ Role in Removal Negotiations
5. Timing of Notice for Removals
6. Recipients of Notice for Removals
7. Contents of Notice for Removals
B. Conclusion of Negotiation Moratorium and Deadline
Management for Removals
C. Administrative Orders and Negotiation Moratorium
for Removals
VII. Disclaimer
VIII. For Further Information
Appendices
Appendix A: Timing of RD/RA Special Notice Letter
Appendix B: Settlement Process Timelines
Appendix C; Model Notice Letters (To be provided under
separate cover)
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I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 983 4,1 0
WASHINGTON. D.C. 20460
4
ñI T t n QPPCIOF
UU I I I Q( $01.10 WAITE AND IMI 0ENCY I$POP’SI
MEMORANDUM
SUBJECT: Interim Guidance on Notice Letters, Negotiations, and
mt mation x hange
FROM: J. ins o Porter
- Assistant Administrator
TO: Regional Administrators
I. INTRODUCTION
The Superfund Amendments and Reauthorization Act of 1986
(SARA). which amends the Comprehensive Environmental Response.
Compensation. and Liability Act of 1980 (CERCLA). maintains the
importance of a strong Superfund enforcement pregram. In
particular. SARA emphasizes the importance of entering into
negotiations and reaching sdttlements with potentially
responsible parties (PRP3) to allow PRPs to conduct or finance
response actions. SARA generally codified the Agency’s Interim
CERCLA Settlement Policy but also established some new
authorities and procedures that were designed to facilitate
settlements.
A fundamental goal of the CERCLA enforcement program is to
facilitate voluntary settlements. EPA believes that such
settlements are most likely to occur when EPA interacts
frequently with PRP5. Frequent interaction is important because
it provides th. opportunity to share information about a site and
may reduce d.lays in conducting response actions caused by the
lack of co aunication. Important mechanisms f or promoting
interaction and facilitating communication between EPA and PRPs
include issuing notice letters, entering into negotiations, and
exchanging information with PRP5.
CERCLA of 1980 as amended by SARA of 1986 i. referred to
in this guidance as CERCLA.
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2
This guidance replaces the October 12. 2984 guidance on
“Procedures for Issuing Notice Letters” and th. October 9. 1985
guidance on “Timely Initiation of Responsible Party Searches,
Issuance of Notice Letters and Release of Information.”
Although certain proc.dures and the timing of various activities
have been modified. this guidance retains many fundamental
aspects of the October 12, 1984 and October 9, 3.985 guidances.
In particular, this guidance re—emphasizes th. importance of
timely issuance of notice letters and the exchange of information
between EPA and PRP5. In addition, this guidance incorporates a
moratorium and “formal” period of negotiation (referred to as a
negotiation moratorium) into the s.ttl.m.nt proc.ss. EPA’s
commitment to carrying out these activities is crucial for
supporting our fundamental goal of facilitating negotiated
settlements.
II. PURPOSE AND SCOPE OF GUIDANCE
The purpose of this guidance is to assist the Regions in
establishing procedures for the issuanc. of notic. letters to
PRP5, for the conduct of negotiations between EPA and PRP5. and
for the exchange of information between EPA and PR?s.
This guidance addresses the use of both “general” and
“special’ notice letters for removal and remedial actions.
Special notice letters differ from general notic. letters because
special notices trigger the negotiation moratorium. The
negotiation moratorium is th period of tim. where a moratorium
is imposed on certain EPA actions and a period of “formal”
negotiations is established between EPA and PRP5.
Use of both general and special notic. letters are
discretionary. )iowever, the Regions are expected to issue
general and special notices for the vast aa ority of remedial
actions. Such notice letters will be issued for remedial
investigations/feasibility studies (RI/FS5) and remedial
designs/remedial actions (RD/RAe). Although it is generally
appropriate to issue a “removal notice” for all removal actions,
the Regions are not expected to invoke the 1122(e) special notice
procedures for most removals.
This guidance also addresses the timing, duration, and
conclusion of the negotiation moratorium. Finally, this guidance
discusses the process of information exchange between EPA and
PRP5, including requests for and releases of site—specific
information.
‘ These guidances were issued under OSWER Directive Numbers
9834.2. and 9834.2. respectively.
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3
III. STATUTORY AUTHORITY
A. SETTLEMENTS
Sections 104(a). 122(a). and 122(e) (6) authorize settlements
and establish certain conditions for allowing PRP5 to conduct or
finance response actions. Section 104(a) authorizes EPA to enter
into an agreement with PRPs to allow PRP5 to conduct or finance
response actions in accordance with 1122 if EPA determines that
the PRPs will conduct the response action properly and promptly.
Under 1104 a). PRPs cannot conduct the RI/PS unless EPA
d.termines that the PRP is qualified to perform the RI/PS. EPA
contracts with or arranges for a qualified person other than the
PRP to assist EPA in overseeing and reviewing the RI/PS. and the
PRP agrees to reimburse the Fund for the costs EPA incurs in
overseeing and reviewing the PRP’s RI/PS.
Section 122(a) similarly authorizes EPA to enter into
agreements with PRPs to perform response actions if EPA
determines the action will be conducted properly. Section 122(e)
also provides for EPA. when practicable and in the public
interest o facilitate settlements with PRP5 to expedite
effectiye r edial actions and to minimize litigation.
Section 122(e) (6) provides that no. PRP may undertak. any
remedial action at a facility where EPA or a PRP pursuant to an
administrative order or consent decree under CERCLA has initiated
an RI/PS unless the remedial action has been authorized by EPA.
B. SPECIAL NOTICE PROCEDURES AND INFORMATION RELEASE
Sections 122(s) and 122(a) contain provisions relating to
the special notice procedures and the release of information to
PRP5. Section 122(s) provides for EPA to utilize the special
notice procedures if EPA determines that a period of negotiation
would facilitate an agreement with PiPe and would expedite
remedial actions. Section 122(e) also provides for EPA to
release certain information to P RPs. Such information includes.
to the extent available, the names and addresses of ether PR? s ,
the volume and nature of substances contributed by each PiP, and
a ranking by volume of the substances at the facility. 3 In
3 Congress recognized that there may be limitations to the
availability of information at early phases of the response
action. In particular. Congress noted that the RI/PS special
notice need not be accompanied by information on volume and
nature of wast, and ranking if this information is not available
at the start of the RI/PS. A separate notice and information
release should be provided for private parties who actually
conduct the remedial action and information on volume, nature and
ranking of wastes should be made available routinely at this
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9834.10
4
addition, this s.ction provides for EPA to mak, such information
availabl, in advance of the special notice upon r.gu.st by a PRp
in accordance with procedures provided by EPA.
Issuance of a special notice triggers a moratorium on the
commencement of certain actions by EPA under 5104 or 5106. The
purpose of the moratorium is to provide for a period of
negotiation between EPA and PRPs. The moratorium prohibits EPA
from commencing any response action under 1104(a). and an RI/PS
under 1104(b). or an action und.r 1106 for 60 days aft.r receipt
of the notice. If EPA determines that a “good faith offer” has
been submitted by the PR? within 60 days after receipt of the
special notice. EPA shall not commence an action under 1104(a) or
take any action against any person under 1106 for an additional
60 days or commence an RI/VS under 1104(b) for an additional 30
days.
Under 1122(e) (2) (a) • EPA may commence any additional other
studies or investigations authoriz.d under 1104(b). including the
remedial design, during the negotiation period. Under
1122(e) (2) (C). if an additional PRP is identified during the
negotiation period or after an agreement has been entered into,
EPA may bring the additional party into the negotiation or may
enter into a sepIra t! agreement with the PR?. Under 1122(e) (5),
EPA is not prohibited from undertaking a response or enforcement
action during the negotiation period when there is a significant
threat to public health or the environment.
Section 122(a) provides that if EPA decides not to use the
special notice procedures established under 1122(e). EPA is
required to notify PRPs in writing of this decision along with an
explanation why it is inappropriate to use such procedures.
The decision by EPA to use or not to use the special notice
procedures is not subject to judicial review.
IV. INFORMATION EXCMANGE
The •xchanq• of information between EPA and PRPs is crucial
for facilitating settlements. Information exchange should be an
ongoing process of communication. EPA uses information obtained
from PRP5 to determine potential liability, to determine the need
for response, and to support the selection of the remedy. PRP5
use information obtained from EPA to organize among themselves
and to develop a “good faith offer” to conduct or finance
response actions.
tim•. See the Conference Report on the Superfund Amendments and
Reauthorization Act of 1986, 99 Cong.. 2d Sess. Report 99—962
pp. 253 (1986)
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5
A. INFORMATION REOUESTS
EPA may request information from PRPs about various
activities and conditions under 1104(e) of CE&CLA and und.
53007(a) of the Resource Conservation and Recovery Act (RCRA).
In addition. EPA may issue administrative subpoenas under
1122(e) (3) (b) of CERCLA. Information commonly requested includes
details concerning waste operations and waste management
practices. the type and amount of substances contributed by each
PR?. as well as the name of other PR ?s that contributed
substances to the site.
Information requests should ba issued as early as
practicable and may be issued as a separate letter during the PRP
search process, as part of the general notice letter, or through
an administrative subpoena. A detailed discussion about the use
of information request letters and administrative subpoenas
is contained in the forthcoming “Guidance on Use and Enforcement
of Information Requests and Administrative Subpoenas under CEECLA
11104(e) and 122(e).”
The Regions have the discretion to decide whether to issue
an in-formation request as a separate letter during the PR? search
or as a component of a gener’a l notice letter. Issuing a separate
information request letter :j advance of the general notice may
be advantageous in situations where information from PR?s is
needed to determine whether it is appropriate to issue a notice
letter to such parties.
Information requests should be developed in accordance with
the forthcoming guidance on information requests and
administrative subpoenas as mentioned above. An information
request should also indicate that EPA plans to vigorously enforce
information requests with the new enforcement tools authorized
under SARA which include issuing orders under 1104(e) (5).
Finally, the information request should indicate that it is the
PR?s responsibility to inform EPA whether information they
provide to EPA is confidential and subject to protection under
1104(e) of CUCLA.
B. INFORMATION RELEASE
It is important to gather and release site—specific
information to PR?. as soon as reasonably practicable. Gathering
and releasing such information early in the process will not only
expedite response and enforcement activities but will help PRPs
organize and negotiate among themselves as well.
As indicated. 1122(e) (1.) provides for the release of certain
information to PR?s to the extent such information is available.
Such information includes the names and addresses of other PR?..
the volume and nature of substances contributed by each PR?. and
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6
a ranking by volume of the substances at the facility. This
information is to be provided to PRP5 in advance of the special
notice in accordance with procedures developed by EPA.
Congress recognized the limitations to EPA’s ability o make
certain information available to PRP5. especially early in the
response process. Therefore, this information can be r.l.as.d
only to the extent such information is available. If the Regions
have information on volume, the Regions should develop volumetric
rankings and should make such information available to PR?s as
soon as practicable. However, due to their preliminary and
summary nature EPA will not expend resources to •xplain or
defend any list or ranking. Lists or rankings released to PRPs
and others should always contain appropriate disclaimers.
The Regions are encouraged to release information to PRP5 as
soon as reasonably possible. The Regions may respond directly to
individual PR.P requests for information. may use the notice
letters as vehicles to release such information to PRP5. or may
establish alternative mechanisms in some situations as discussed
below. The Regions are strongly encouraged to us. the notice
letters to release site—specific information. In particular, use
of the general notice may provide convenient opportunity to
release information in advance of’the special notice pursuant to
the statutory provision that EPA release such information in
advance of the special notice in accordance with procedures
developed by EPA.
Although it is generally preferabl. to release information
to individual PRPs through notice letters, alternative mechanisms
may be used in unusual circumstances. Vor example, in instances
where there are many PRP5 and/or where there is a substantial
amount of information to be released, the Regions may consider
making the information available through a central mechanism
(e.g. through a PRP steering committe. if one has been formed and
if the committee has agreed to b. a clearinghouse for
distributing information to other PRPs). An alternative would be
to indicate in the notice letter that the Region has site—
specific information that will be made availabl, to the PRPs in a
manner specified in the letter.
V. NOTICE LITTERS AND NEGOTIATION MORATORIUM ?OR RI/VS AND RD/RA
This guidanc. creates a systematic process for issuing three
separate notice letters for remedial actions. The three notice
letters are 1) the general notice. 2) the RI/VS special notice.
and 3) the RD/RA special notice. Even though the RI/VS and RD/LA
special notic. letters are separate letters, they are discussed
in the same section below since the content of these lstt.rs is
basically the same. In instances where th. content of the RI/VS
andRD/RA special notices differ, separate sections are
presented.
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9834.10
7
Also, this guidance is written with the assumption that each
notice letter will be issued in sequence. Consequently the
guidance has been structured so that certain information provided
or requested in one letter is not repeated in a sub..qu.nt
letter. The content of actual letters may, however, n..d to be
modified in situations where this process is not followed.
For example, there may be a situation where sit. activities
are already underway and where the ft.gion is ready to issue the
RI/FS special notice but has not issued a general notice. In
this instance, it would not be n.cessary to wait to send the
special notice until after a general notice is issued. However,
it may be appropriate to include certain aspects of the g.n.ral.
notice into the special notice.
A. PURPOSE OF NOTICE LETTERS
The purpose of the general notice is to inform PRP5 of their
potential liability for future response costs, to begin or
continue the process of information •xchang.. and to initiate th.
process of “informal” negotiations. In addition, the general
notice informs PRPs about the possible us. of the 13.22(e) special
notice procedures and the subsequent moratorium and “formal”
negotiation period.
The purpose of the special notice is similar to the general
notice, except that the special notice is also used to invoice the
statutory moratorium on certain EPA actions and to initiate the
process of “formal” negotiations. Although th. general notice
does not trigger a moratorium on any EPA action and does not
invoke a “formal” period of negotiation, the general notice is
expected to initiate a dialogue betw..n EPA and PRP5. Issuance
of a general notice should be viewed as a mechanism for
initiating negotiations whereas issuance of a special notice
should be viewed as a mechanism for concluding negotiations.
The tsrm “informal” negotiations does not mean that such
negotiations are net seriou, efforts to reach a settlement.
Rather “informal” negotiations refers to any negotiations that
are not conducted as part of the negotiation moratorium triggered
by issuance of a special notic. under 1122(a). The terms
“informal and “formal” negotiations are used to draw a
distinction between negotiations which are and are not covered by
the 1122(e) moratorium.
B. GENERAL NOTICE LETTER
Agency notification procedures should provide PRP5 with
sufficient tin, to organize and develop a reasonable offer to
conduct or finance th. response action. Toward this end, the
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9834.10
8
Regions should contact PRP5 prior to issuing a 1122 (e) special
notice by issuing a general notice letter.
1. Whether to Issue General Notice
A general notice letter should be issued at the vast
majority of sites that are proposed for or listed on the National
Priorities List (NPL) where negotiations for the RI/PS and RD/RJ
have not yet been initiated. Circumstances whsre it may not be
appropriate to issue the general notice includ, sites
where a notice pursuant to previous guidance was issued prior to
the r.authorizatioft of CERCLA or where the Region is ready to
issue a special notice at the site. These exceptions are
important for minimizing any possible disruption to ongoing
activities.
2. Timina of General Notice
The general notice letter should be sent to PRPs as early
in the process as possible, preferably once the site has been
proposed for inclusion on the NPL. Early receipt 0 f the general
notice.will ensur. that PRP5 have adequate knowledge of their
potential liability as well as a realistic opportunity to
participate in sittlement n.gotiations. Whenaseparate
information request letter has been sent to PRPs prior to the
general notice. the information request should be sent as early
as possible to avoid any delay in issuing the general notice.
3. ReciDients of General Notice
General notice letters should be sent to all parties where
there is sufficient evidence to make a preliminary determination
of potential liability under 1107 of CERCLA. If there is doubt
about whether availabl. information supports issuance of the
general notice, separate information request letters may be sent
to such parties prior to issuing the notice. If a Federal agency
has been identified as a generator at a facility not
owned/opsratsd by ths Federal agency, such agency should be
routinely notified like other PRP5.
If additional PRP5 are identified after the general notice
but bef or. ths RI/PS special notice is issued. the Regions should
provid. a general notic. to those additional PRP5. If additional
PRP5 are identifi.d after general and special notices are issued.
the additional PRPs need not receive a general notice before
receiving the appropriat. special notice. IfowevSr. relevant
aspects of the general notice should be incorporated into the
special notice.
• Copies of the general notice should be provided to the
Regional administrative record coordinator, the appropriate State
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9834.10
9
rspr.sentative, the State or Federal truste, if a trustee for
natural resotl ces has been designated, and to EPA headquarters at
the same time notices are sent to PRPs. The copies of notices to
headquarters should be sent to the Information Management Section
within the Program Management and Support Offic. of the Office of
Waste Programs Enforcement (OWPE).
Providing copies to the administrative record coordinator is
important for •nsuring that the notice is placed in the
administrative record. 4 Providing copies to the Stats
representative and the Stats or Federal trustee is important for
ensuring that States are appropriately informed about possible
future negotiations.’ Providing copias to OWPE is essential for
permitting entry into the Superfund Enforcement Tracking System
(SETS). Entry into sets will facilitate our efforts to track
sits activities and to respond to Congressional and other
inquiries. Direct Regional input of data into SETS en notice
letter recipients is planned for FT 1988.
It is not necessary to provide copies of each general notice
to the administrative record coordinator. Stats representative,
State or. Federal trustee, or headquarters in instances where
identical notices are provided to multiple PRP5. When, there are
multiple PRPs at a site, a copy of one general notice with a list
of other parties who have received the letter would suffice.
4. Contents of General Notice
The general notice letter should contain the following
components: a) a notification of potential liability for
response costs, b) a discussion about future notices and the
possible future use of special notice procedures, c) a general
discussion about sits response activities, d) a request for
information about the sits (if appropriate). e) the release of
certain site-specific information (where available), f) a
discussion about the merits of forming a PRP steering committee,
g) a notice regarding the development of an administrative
record, and h) a deadline for response to the letter and
information on the EPA representative to contact.
A discussion about placing notice litters in the
administrative record is covered in the forthcoming TM Guidance on
the Administrative Record for Selecting a Response Action Under
CERCLA” and in the preambl, to the forthcoming revisions to the
National Contingency Plan.
‘ State participation in negotiations is covered in the
forthcoming “Interim Guidance on EPA—State Relations in CERCLA
Enforcement.”
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10
a. Potential liability : The letter should inform parties
that they are potentially liable for response costs under 5107 of
CERCLA, including the costs of conducting the RI/PS and RD/RA.
The letter should define the scope of potential liability end
should briefly explain why the parties have been identified as
PRPs.
b. Future notice under 1122(a) or 1122(e) : The letter
should indicate that EPA will notify the party at an appropriate
point in the future. The letter should specify that this notice
will either be a 1122(a) notice or a 1122(e) special notice and
should explain what these notices are.
The letter should indicate that the 1122(a) notice is a
notice which informs parties that EPA will not us. the 1 122(e)
special notice procedures. The letter should indicat, that the
notice will provide an explanation for the decision not to use
the special notice procedures.
The letter should also indicate that a 1122(e) special
notice will invoke the negotiation moratorium. The letter should
make clear that issuance of a 1122(e) special notice letter is
discretionary and may be used if EPA determines that use of such
procedures would facilitate an agreement and expedite remedial
action. The letter should also explain the purpose of the
special notice and the subsequent negotiation moratorium.
Informing PRPs about the special notice procedures and the
negotiation moratorium will ilert PUs to possibi. future
negotiations and increase their awareness of their opportunities
for participation in such negotiations.
a. Site response activities : The letter should generally
discuss the activities EPA plans to undertake at the site. Where
appropriate, such activities should include schedulsd start or
completion dates for the RI/VS or RD/RA. Instances where it may
not be appropriate to provide start or completion dates include
situations where the general notics is issued very early in the
process and where specific dates have not yet been set, or where
it is .xpctd that target dates are likely to change
significantly.
d. Information rsauest : The letter should request
information on substances sent to or present at the site and the
namss of other PUs pursuant to 1104(e) of CERCLA and/or 13007(a)
of RCRA if a separate information request has not already been
issued. The content of th. information request should be
consistent with the forthcoming “Guidance on Use and Enforcement
of Information Requests and Administrative Subpoenas Under CERCLA
5104(e) and 5122(e).”
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11
a. Information release : At a minimum, the litter should
release the names and addresses of other PRP5 who have received
the general notice letter. In addition, to th. extent such
information is available, the letter should include the volume
and nature of substances contributed by each PRP and a ranking by
volume of the substances at the facility if such information has
not been previously released.
f. PRP steering committee : Th. letter should request that
the PRP5 identify a member of their organization who will
represent their interests. In addition, the letter should
recommend that PRP5 form a steering committee to represent the
group’s interests in possible future x eqotiations. The letter
should indicate that establishing a steering committee is
important for facilitating negotiations with EPA.
g. Administrative record : The letter should be used as a
vehicle for informing PRP5 of the availability of an admin-
istrative record that will contain documents which form the basis
for the Agency’s decision on the selection of remedy. The letter
should indicate that the record will be open to the public for
inspection and comment. The letter should also provide
information regarding the opening of the record and where it will
be located.
h. PRP response and EPA contact : The letter should
encourage PRP5 to notify EPA by a specified date of their
interest to participate in f iture negotiations. The letter
should indicate that PRP5 may respond a. a group through a
steering committee if one has been formed. The letter should
also provide a cut off date for voluntary compliance with
information requests (if a request for information is contained
in the general notice). An appropriate time frame for the PRP
response to an information request is generally thirty days from
receipt of the letter. Finally, the letter should provide the
name, phone number, and address of the EPA representativ, to
contact.
C. RI/PS and RV/P.A SPECIAL NOTICE LITTERS
Prior to EPA’s conduct of the RI/VS and RD/RA. the Regions
should either issue the special notice to PRPI or provide PRP5
with an explanation why it was not appropriate to use the special
notice procedures. Issuanc. of the special notice trigg.rs a
moratorium on EPA’s conduct of the RI/VS and remedial action.
While the statute does not impose a moratorium on EPA’s conduct
of the remedial design, the Agency will not generally conduct
such activities during the moratorium. Th. purpose of the
moratorium is to provide for a formal period of negotiation
between EPA and PRP5 where the P RPs will be encouraged to conduct
or finance response activities.
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9834,J ()
‘ .2
m. negotiation moratorium may last a total of 90 days for
the RI/PS and 120 days for the RD/RA if EPA r.c.iv.s a “good
faith offer” from PRP S within the first 60 days of the
moratorium. The negotiation moratorium would conclude after 60
days if the PRP. do not provide EPA with a “good faith of fi . ”
The initial 60 day moratorium begins on th. date the PR?.
receive the special notice via c.rtified mail. In instances
where there is more than one PRP and PRPs an, likely to r.c.ivs
the special notic. on diff.r.nt days, th. date th. moratorium
begins should be seven days from the date the letters are mailed
to th. PRP5. In either case, the special notice must saks clear
when the negotiation moratorium begins and ends.
1. Whether to Issue RI/PS and RD/RA SDecial Notice
EPA has the discretion to us. the special notice procedures
when EPA determines that a pined of negotiation would facilitate
an agreement with PRP5 and would expedite remedial actions.
The Agency believes entering into such negotiations would
generally facilitate settlent.nts and plans to utilize the RI/PS
and RD/RA special notice procedures in th. vast majority of
cases-.
There are, however, som. circumstances where it would
generally not be appropriate to us. such procedures. Such
circumstances include 1) where past dealings with the PR ?s
strongly indicate they are ufilikely to negotiate a settlement,
2) where EPA believes the PRP5 have not been negotiating in good
faith, 3) where no PRP5 have been identified at th. conclusion of
the PR? search, 4) where PR?s lack the resources to conduct
response activities. 5) where thers are ongoing negotiations, or
6) wh•re notice letters were already sent prier to the
reauthorization of CERCLA and onging negotiations would not
benefit by issuance of a special notice.
Special notices may be issued for operable units of remedial
actions. Th. test fez determining whether to issu. a special
notic. for an operabl, unit is gen.rally th. same as for full-
scale r.m.dial actions. The general expectation is that separate
special notices will be issued for each separate operable unit as
long as issuing the notice would facilitate an agreement and
would expedite the remedial action. However, special notices may
also be issued for only major operable units or may cover a
series of operable units if appropriate under the circumstances
at the site.
Per example, if several operabl, units will be conducted at
a sit. as relatively separat. and distinct response actions, it
may be appropriate to consider using separate special notic.s
which would trigger separate negotiation moratoriums. If a series
of operable units will make up a remedial action it may be
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13
appropriate to issue the special notice to cover only the major
operable unit(s) or to cover several operable units.
2. Notifyina PRPs When Not ADDroDriate to Issue
RI/VS and RD/PA SDecia], Notice
In instances where EPA decides it is inappropriate to issue
the special notice. 1122(a) provides for EPA to notify PRP5 in
writing of that decision. The notic. must indicat. the reasons
why the Region determined that issuing the special notice and
entering into “formal” negotiations was not appropriate.
The notic, should be provided to all ?RP5 that hav, been
identified to date as well as to the Regional administrative
record coordinator for placement in the record. Such notices
should be provided as soon as practicable. In instances where
the RI/VS or RD/PA have not yet been initiated, th. notic. should
b. sent prior to the initiation of such activities if possible.
In addition, the 1122(a) notice should be used as a vehicle
for informing PRPs that the Agency will establish or has
established an administrative r.cord containing technical
docum.rzts supporting the Agency’s decisioft on th. selection of
remedy. The notice should indicat, that h. record is open for
public inspection and comment and should specify where the record
will be or has been located.
3. DOJ Role in RItFS and RD/PA N.cotiations
The Regions should notify the Chief of the Environmental
Enforcement Section in the Department of Justice (DOJ) prior to
issuing special notice letters where settl.ment by a consent
decree is contemplated. A copy of this m.morandum should also be
provided to the Office of Waste Programs Enforcement and the
Office of Enforcement and Compliance Monitoring in M.adquarters.
The memorandum to DOJ should indicate when the Region
intends to issu. ths special notice. Because most RI/VS
negotiations involve consent orders notice to DOJ on the RI/VS
is not ordinarily necessary. Mowever, where a sit. is in
litigation or where settlement by consent decree is expected, DOJ
should be notified at least 30 days prior to issuing the RI/VS
special notice. In addition, where the resolution of the matter
by an administrative order is expected to involve a compromise of
past or futur. respons. costs and the total rssponse costs
will exceed $500,000, DOJ is to be notified. DOJ’s role will be
to review thi compromis. of the claim pursuant to section
122(h) (1) but not to review the administrative order for the
RI/FS. For RD/PA negotiations, the notice should be sent to DOJ
at least 60 days prior to issuing the RD/LA special notic.. The
memorandum should also identify the EPA Regional representative
DOJ should contact.
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In addition, the Regions should consult with the Chief of
the Environmental EnforCe Iteflt Section prior to sending a copy of
any draft consent decree or any outlin. of a draft consent decree
to PUs. The Regions are encouraged to include a draft consent
decree with the RD/RA special notice or soon thereafter as
discussed below.
4. Timina of RI/PS SBecial Notice
It is important that PRP5 receive the RI/PS special notice
letter as soon as practicable. Of greater importance, th. litter
must be sent sufficiently in advance of obligations for the RI/PS
so that negotiations do not delay th. initiation of the RI/PS by
the Fund in the event the n.gotiations do not result in an
agr.ement providing for the PUs to conduct or financ, the RI/PS.
Timely receipt of the special notice will have a significant
effect on the PRP5 ability for meaningful participation in formal
negotiations.
The RI/PS special notice letter should be sent to PRPs no
lat.r than 90 days prior to the scheduled date for initiating the
RI/PS. Th. scheduled date for initiating the RI/PS refers to the
dat. funds will be obligated to commence respons, activities.
A minimum of 90 days is important for insuring that the
negotiation moratorium does not delay initiation of the RI/PS in
the event negotiations do not r.sult in a settlement. Th. time
for service by mail should be taken into account.
5. Timina of RDIRA SDscial Notice
The timing of the RD/RA special notic, letter will have a
significant impact on both the succ.ss of negotiations and on
EPA’s ability to move forward with implementing a remedy without
delay. As indicat.d .arli.r, “formal” n.gotiations pursuant to
special notice ax. not the sole vehicle for reaching settlements.
“Informal” negotiations must occur throughout the proc.ss and in
advance of the special notice. To assure that “formal”
negotiations an, productive. EPA must initiats UP search and
information .xchange activities as well as “informal”
negotiations as early as possible.
The primary purpos. of th. special notice procedures is to
facilitate ssttlsm.nts through negotiation. A primary concern in
determining when to issue an RD/RA special notice is whether
there is a likelihood that meaningful negotiations can be
conducted at a given stage in th. process. Another concern is
that, to the extent practicable, th. negotiations must be
scheduled to minimize any d.lay in the remedial design and
remedial action. A final concern is that negotiations be carried
out in a way that doss not undermine or have ths appearance of
undermining th . public participation process.
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This guidanc. establishes an approach which identifies when
the Regions must generally issue the RD/PA special notice letter.
The Regions may, however, adopt an alternative approach under
appropriate circumstances. Appendix A contains illustrati.ns of
the three approaches discussed below. •
a. General AD roach: Issue UDecial notice when release
draft PS and ProDosed plan for Dublic comment . The Regions
generally must issue the RD/PA special notice when th. draft
feasibility study (PS) and proposed plan ‘ are released to the
public for comment. As shown in Appendix A. issuance of th.
special notice with the release of th. draft PS and proposed plan
triggers the initial 60 day negotiation moratorium. Th . initial
60 day negotiation moratorium begin. at th. start of the 30 day
public comment period and, in conjunction with th• first 30 days
of the 60 day extended negotiation moratorium, is concurrent with
the Record of Decision (ROD) review and approval process. The
remaining 30 days of the extended negotiation moratorium is
concurrent with the initial phases of the remedial design. EPA’s
ability to sign the POD is not affected by the duration of the
negotiation moratorium. The ROD may be signed at any point after
the close of the public comment period and the preparation of the
responsiveness summary for the public.
In most eases, commencing formal negotiations at the same
time that the draft PS and proposed plan are released will
properly balance the considerations stated earlier relating to
EPA’s ability to conduct meaningful negotiations, to minimize
delay in implementing the RD/PA, and to maintain the integrity of
the public participation process. Under this approach, formal
opportunity for PRP involvement would begin at an early yet
concrete stage in th. process. Early participation may be
especially advantageous in situations where PRPs have not been
previously or substantially involved in RI/PS activities. In
addition, PRPs and the public would have knowledge of the
possible range of alternatives through th. draft PS and proposed
• Th• tin, periods depicted in the following discussion and
illustrated in Appendix A reflect “best case” scenarios where
various respons, and enforcement activities ar. expected to be
carried out without delay. For example, the public comment
period lasts 30 days and does not take into account a possible
extension.
‘ The proposed plan refers to the public participation
document developed pursuant to 1117(a). This is a non-legal,
non-technical document that describes the alternatives in the PS,
and specifies and provides a brief analysis of EPA’s preferred
alternative. A more detailed discussion of the proposed plan
will be contained in the forthcoming “Guidance on Documenting
Decisions at Superfund Sites” (referred to as the ROD Guidance)
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plan prior to “formal” negotiations. This information is
important for assisting the PRPs in developing a meaningful “good
faith of fir” for conducting or financing the RD/PA.
b. Alternative ADDrosch: Issue iDecial notice Drier to
release of draft FS and DroDesed Dian for Dublic comment .
Although the Regions generally will issue the RD/PA special
notice when the draft FS and proposed plan are released to the
public for comment, the Regions are encouraged to issue the
special notice earlier in the process if this action would
facilitate the prospects for reaching a settlement. If a Region
chooses to follow this approach. th. Region should includ, with
the special notice a summary or fact sheet of the alternatives
EPA has screened and the alternatives the Agency is currently
considering. S
As shown in Appendix A. the RD/PA special notice may
issued prior to EPA’s release of the draft FS and proposed plan.
Issuance of the special notice triggers the initial 60 day
negotiation moratorium. The initial negotiation moratorium is
concurrent with the review and release of the draft VS and
proposed plan. The initial negotiation moratorium is completed
prior to the iz ia icn of the public comment period. The public
comment period Concurrent with the first 30 days of the
extended negotietioI ’3ioratorium. The remaining 30 days of the
extended negotiation moratorium is concurrent with the ROD review
and approval process. The ROD could be signed and the
negotiation moratorium couldbe concluded at about the same time.
EPA’s ability to sign the ROD is not affected by the negotiation
moratorium. The ROD may be signed at any point after the close
of the public comment period and th. preparation of the
responsiveness summary for the public.
In many cases, providing special notice at this early stage
may be inappropriate b.cause too much uncertainty would exist.
about the remedy to allow for meaningful negotiations. However.
under other circumstances it may be appropriate to issue the
‘ Release of a summary or fact sheet en the alternatives
that have been screened and the alternatives that are being
considered is important for facilitating negotiations at this
early stage in the remedial process. This information will be
useful to PRPs in developing their “good faith offer” for
conducting or financing a response action and will be important
for informing PRP5 about the alternatives the Agency is
considering at the site. The Regions should include the summary
of alternatives or fact sheet in the administrative record for
each site.
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special notice early in the process, especially in situations
where there is a relatively small group of PRPs. it is clear what
the remedy is likely to b. and the remedy is not likely tq be
controversial.
Where circumstances permit issuance of the special notic. at
this early stage. an advantage to this approach is that the ROD
review and approval process and th. negotiation moratorium could
be concluded at about the sam. time. This would help assure that
cleanup occurs as soon as possible whether through a negotiated
settlement or Fund-financed action. In addition, there would be
an early opportunity to inform PRPe of various remedial
alternatives under consideration by EPA prier to SPA’s
identification of the proposed plan. Early participation may be
advantageous where PRP5 have not been previously or substantially
involved in RI/FS activities.
c. Alternative AD roach: Issue •B.cial notic. when the ROD
is signed . Although the Regions generally will issu, the RD/RA
special notice letter when the draft FS and proposed plan are
released to the public for comment, there may be some limited
circumstances wher. it is appropriat, to issue the notice later
in the process Ci... when the ROD is signed). This approach may
be followed, however, only whsre the Region can provide adequate
justification and where the Region has obtained prior approval
front Headquarters. Approval must be obtained in writing from the
Directors of the Office of Waste Programs Enforcement and the
Office of Emergency and Remedial Response.
As shown in Appendix A. under this approach the RD/RA
special notice would not be issued until the ROD is signed.
Thus, the entire 60 to 120 day n.gotiation moratorium would not
occur until the remedial design phase.
An advantage to this approach is that since the ROD would be
signed and the remedy would be selected at the start of the RE/RA
negotiation moratorium, the PRPu would know precisely which
remedy the qood faith of f.r” and the negotiations should focus
on. In addition, since the negotiations would begin after the
close of the public comment period, the PRPs and EPA would have
the benefit of knowing the public comments.
The major disadvantage to this approach is that the
negotiation moratorium would not occur until the end of the
process (i.e. net until the beginning of the remedial design
phase). Issuing the special notice at this point would create
the greatest potential for a subsequent delay in implementing
the remedy.
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Instances where it may, however, be appropriat, to issu. the
special notice later in the process (i.e. not until the ROD is
signed) may be where more time is needed to conduct informal
negotiations, where the site is particularly complex, or where
there is an extraordinarily larg. number of PRPs (e.g. hundreds
of PRP5). Another example may be where there is little
expectation that a Fund—financed remedial action will occur in
the near future at an enforcement—lead site. If Fund—financed
activities are not expected to occur and a later moratorium would
facilitate cleanup, it may be less important to initiate and
conclude negotiations early in the process.
6. ReciDients of RuTS and RD/RA SDecial Notice
The RI/FS and RD/RA special notice letters should be sent to
all parties where there is sufficient evidence to make a
preliminary determination of potential liability under 1107 of
CERCLA. If there i doubt about whether available information
supports issuance of the RuTS and RD/LA special notices,
separate information request letters may be sent to such parties
prior to issuing such notice. If a Federal agency has been
identified as a generator at a facility not owned/operated by the
Federal agency, such agency should be routinely notified like
other PRP5.
Section 122(e) (2) (C) authorizes EPA to bring additional
parties into negotiations or to enter into a separate agreement
with parties when addjtjonal’PRPs are identified during the
negotiation period or after an agreement has been entered into.
The Regions may provide a special notice to additional parties if
they are identified after issuance of the RuTS special notice.
letter. Mowever, issuance of a special notice to additional
parties would not change the duration of the negotiation
moratorium. The special notice may invite PRP5 to participate in
remaining negotiations, but would not extend the pre-existing
negotiation moratorium.
Copies of the special notices should be provided to the
Regional administrative record coordinator, the appropriate State
representative, the State or Federal trustee if a trustee for
natural resources has been designated, and to EPA headquarters at
th. same time notices are sent to PRPs. The copies of notices to
headquarters should be sent to the Information Management Section
within the Program Management and Support Office 0 f the Office of
Waste Programs Enforcement (OW?!).
Providing copies to the administrative record coordinator is
important for ensuring that the notice to be placed in the
record. Providing copies to the State representative and the
State or Federal trustee is important for ensuring that States
are appropriately informed about possible future negotiations.
Providing copies to OWPE is essential for permitting entry into
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the Sup.rfund Enforcement Tracking System (SETS). Entry into
sets will facilitate our efforts to track Rite activiti.s and to
respond to Congressional and other inquiries. Direct Regional
input of data into SETS on notic, letter recipients is pla*n.d
for FY 1988.
It is not necessary to provide copies of each special notice
to the administrative record coordinator. State representative,
State or Federal trustee, or headquarters in instances where
identical notices are provided to multiple PftPs. Where there are
multiple PR?. at a site, a copy of one special notice with a list
uf other parties who have received th. letter would suffice.
7. Contents of RI/VS and RD/Ri SDecia] Notice
The RI/VS and RD/U special notice letters should contain
the following components: a) a notification of potential
liability. b) a discussion about the special notice and
subsequent negotiation moratorium, C) a discussion about the
response activities to be conducted, d) a copy of a statement of
work or workplan and a draft administrative order on consent for
the RI/VS. e) a copy of a draft consent decree for the RD/U (if
possible). f) a discussion about what constitutes a “good faith
offer” for the RI/VS. g) a discussion about what constitutes a
“good faith offer” for the RD/Ri, h) a release of certain site-
specific information (where available and appropriate), i) a
demand for payment of EPA costs incurred to date, j) a
notification about the administrative record, and k) a deadline
for response to the letter and th. name of the EPA representative
to contact.
a. Potential liability : The letter should specify that
PRP5 are potentially liable for the costs of conducting the RI/VS
or the RD/RA. A detailed discussion about potential liability is
not necessary particularly if the RI/VS or RD/U special notice
references the general notice.
b. SDecial notice and formal negotiations : The letter
should discuss the purpose of the special notice and the
subsequent negotiation moratorium. The level of detail will
depend upon whether the PR? has received the general notice and
whether the general notice provided an adequate discussion. At
a minimum, the letter should make clear that EPA is inviting PRPs
to participate in “formal” negotiations for PR? conduct of the
RI/VS or RD/U and that this letter automatically triggers the
formal negotiation period. In addition, it is important that the
special notice indicate the date the negotiation moratorium will
conclude in the absence of and in the event of a “good faith
offer.” Finally, the letter should explain that a consent order
or consent decree should be finalized by the end of the
moratorium.
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c. kes onse actions to be conducted : Th. letter should
identify ta• response activities EPA plans to conduct at th. site
and provide scheduled dates for initiating such activities if
appropriate.
d. Statement of work or werkplan and draft administrative
order on consent for RI/PS sDecial notice : The letter should
provide a statement of work or workplan and draft administrative
order (AO) on consent. Such information is crucial to PRPs in
their d.v.lopment of a “good faith offer” to EPA for conducting
or financing the RI/PS and for ultimately facilitating
settlements. The Regions ar. encouraged to provide the draft AO
on consent with the notice letter if practicable. At a minimum,
the letter should contain a copy of the statement of work with
the expectation that the draft AO will follow as soon as
practicable.
c. Draft consent decree for RD/LA sDeeial notice : The
litter should contain a copy of th. draft consent decre. if
possible. It is important that PRP5 hav, the draft consent
decree at the start of negotiations or soon thereafter since the
decree contains important information which will assist PRP. in
developing their “good faith offer” to EPA.
f. “ Good faith offer” for RI/PS : Th. letter should
indicate that a “good faith offer” is a written proposal which
demonstrates the PRP’s qualiications and willingness to conduct
or finance the RI/PS. A “goad faith offer” for the RI/PS should
include the following:
o a statement of the PRP5 willingness to conduct or finance
the RI/PS which is generally consistent with EPA’s
statement of work or work plan and draft administrative
order en consent or provides a sufficient basis for
further negotiations;
o a paragraph-by-paragraph response to EPA’s statement of
work or workplan and draft administrative order on
consent;
o a detailed statement of work or werkplan identifying how
the PRP5 plan to proceed with the work;
o a demonstration of the PRPs technical capability to
undertake the RI/PS. This should include a requirement
that PRP5 identify the firm th•y expect will conduct
the work or that PRP5 identify the process they will
undertake to select a firm;
o a demonstration of the PRPs financial capability to
finance the RI/FS;
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o a statement of the PR?. willingness to reimburse EPA for
th. costs EPA incurs in overseeing the PR? conduct of the
RI/FS as required by 5104(a) (1); and
o the name, address, and phone number of the party or
steering committee who will represent the PRP5 in
negotiation..
g. “ Good faith offer” for RDIRA : The letter should
indicate that a “good faith offer” is a written proposal which
demonstrates the PR?. qualifications and willingness to conduct
or financ, the RD/Rk. A “good faith offer” for the RD/RA should
include th. following: -
o a statement of the PR?. willingnes, to conduct or finance
the RD/RA which is generally consistent with EPA’s
proposed plan or which provides a sufficient basis
for further negotiations in light of EPA ’s proposed
plan:
o a paragraph-by-paragraph response to EPA’s draft consent
decree, including a response to other documents that may
have been attached to the decree such as a technical
scope of work for the proposed plan or access or
preauthorization agreements;
o a detailed “statement of work” or “workplan” identifying
how PR?. plan to proe.ed with the work;
o a demonstration of the PR?s technical capability to
undertake the RD/RA. This should include a requirement
that PR?s identify the firm they expect will conduct
the work or that PR?s identify the process they will
undertake to select a firm;
o a demonstration of the PRPs capability to finance the
RD / RA;
0 a statement of the PRPs willingness to r.imburse EPA for
past response and oversight cost.;
o a discussion about the PRP5 position on releases from
liability and reopener’s to liability; and
o the name, address, and phone number of the party or
steering committee who will represent the PRP5 in
negotiations.
h. Information release : To the extent such information is
available and to the extent such information has not been
previously released, the letter should contain information on the
names and addresses of other ?RPs, the volume and nature of
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substance, contributed by each PRP. and a ranking by volume of
the substances at the facility. Note that the release of
information with the RI/FS and RD/RA special notices is not
intended to require the release of information previously
provided to PR ? ..
j. Demand for Davment : The letter should includ, a demand
that PRPs reimburse EPA for the colts the Agency has incurred in
conducting response activities at the site pursuant to 11071a).
The letter should identify the action EPA undertook and th. cost
of conducting th. action. Th. letter should also indicat, that
the Agency anticipates expending additional funds on activities
covered by this notice and other specified future activities.
Finally, the letter should demand payment of interest for past
and future response costs incurred by EPA pursuant to 1107(a).
Notice letters should not be delayed to obtain cost information
where such information has not been previously collected.
j. Administrative record : The letter should be used as a
vehicle for informing PRP5 of the availability of an admin-
istrative record containing documents that form the basis for the
Agency’s decision on th. selection of remedy. The letter should
indicate that the record is open to the public for inspection and
comment. The lett.r should also indicate where th. record will
be or has been located.
ii. PRP resDonse and EPA contact Derson : The letter should
encourage PRP5 to notify EPA of their interest to participate in
negotiations. The letter should indicate that PRPs may respond
as a group through a steering committee if a committee has been
formed. In addition, the letter should provide the name, phone
number, and address of the EPA representative to contact.
D. CONCLUSION OF NEGOTIATION MORATORIUM AND DEADLINE
MANAGEMENT FOR RI/PS AND RD/RA
At the conclusion of the 12.22(e) negotiation moratorium, the
Regions should have a fully negotiated administrative order on
consent for the RI/PS and a fully negotiated consent decre. for
the RD/RA wbich has been signed by the PRPs. A signed document
is necessary to show that an agreement has, in fact, been
reached. ‘
• Pre—SARA guidance for drafting an administrative order is
provided in “Superfund Administrative Order: Workshop and
Guidance Materials” (1985) and for drafting a consent decree in
“Guidance on Drafting Consent Decrees in Hazardous Waste Cases’
(May 1. 1985). These guidances are being revised to include
SARA’ s requirements.
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At the conclusion of the 120 day moratorium for the RD/L, a
determination must be made on whether to continue settlement
activities, whether th. sits should be cleaned up using Superfund
money, or whether to initiate a 5106 enforcement action. £
continuation of settlement activities may includ, seeking in
extension to the 120 day negotiation moratorium as discussed
below, or sending a consent decree to the Department of Justice
for lodging in the appropriate district court.
In instances where an agreement has been reached and fully
negotiated but PRPs have not yet obtained signatures, it may be
necessary to obtain an extension to the negotiation moratorium.
Extensions may also be necessary where the agreement has not been
fully negotiated but all major issues ar. resolved and
outstanding issues ar. well defined and final languag. is
imminent. Extensions to the negotiation moratorium can be
obtained only in certain circumstances as discussed in the
February 12. 1987 “Interim Guidance: Streamlining the CERCLA
Settlement Decision Process.” ‘•
The timing of special notic. letters will hav, a significant
affect on our ability to successfully conclude negotiations at
the end of the moratorium period. The Streamlined Settlement
Policy provides for two different processes for obtaining
extensions for the RI/VS and RD/LA moratoriums. The policy
indicates that the Regional Administrator has the discretion to
terminate or extend negotiations for the RI/VS after 90 days.
However, extension of negoti&tions beyond an additional 30 days
should be authorized by the Regional Administrator only in
limited cases.
Relating to the RD/PA moratorium, the Streamlined Settlement
Policy provides for either Regional or Headquarters approval of
an extension under certain circumstances. An ext.nsion to the
120 day RD/LA moratorium may be granted for an additional 30 days
by the Regional Administrator when ssttlement is likely and
imminent. An additional extension beyond the 30 days may be
approved only by the Assistant Administrator for the Office of
Solid Waste and Emergency Response (OSWER) and only in rare and
extraordinary circumstances.
This guidance re-emphasizes the importance of meeting the
90 day moratorium for the RI/VS and the 120 day moratorium for
the RD/PA. To aid that policy, this guidance identifies three
circumstances where the Regional Administrator and Assistant
Administrator for OSWER may consider granting such extensions for
the RD/LA moratorium.
° This guidance was issued under OSWER Directive #9832.9.
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First, it may be appropriate for the Regional Administrator
or the Assistant Administrator to extend the 120 day moratorium
for the RD/RA if EPA s.lects a remedy in the ROD which is
significantly different from the Agency’s stated preference in
the proposed plan. This could mean that the focus of
negotiations could change significantly, requiring additional
time to r.ach agreement with PRP5.
The second example applies to Fund—lead sites. It may be
appropriate for the Regional Administrator or the Assistant
Administrator to extend the 120 day negotiation moratorium for
the RD/RA if non-enforcement activities at the site (e.g. an
extended public comment period or n sxtendsd ROD review and
approval process) caus. a significant delay in the Agency’s
ability to move forward in implementing a Fund—financed remedy.
An extension to the negotiation moratorium may be especially
appropriate if there is reason to believe a negotiated settlement
is imminent. In other words, if the Fund is not ready to move
forward in implementing the remedy at the end of the 120 day
negotiation moratorium there is no reason to conclude
negotiations if there is reason to believe an agreement can be
reached ..
The third example applies to •nforcement—lead sites. It may
be appropriate for the Regional Adainis rator or the Assistant
Administrator to extend the 120 day negotiation moratorium for
the RD/RA after a $106 litigation referral has been prepared and
referred to the Department o 7ustice (DOJ) for action. In fact.
the preparation and referral of a case to DO7 may be an important
mechanism for providing the necessary impetus for reaching a
voluntary settlement. In many cases it may be appropriate to
issue a unilateral administrative order concurrent with the
referral.
VI. NOTICE LETTERS AND NEGOTIATION MORATORIUM FOR REMOVAL
The notice letter process for removal actions differs from
the notification process for remedial actions. As discussed
above, the motif ication process for remedial actions involves
issuance of three notice letters. The notification process for
rsmovals will involve only on. notice letter which may or may not
invoke the 1122(e) special notice procedures as discussed below.
A. NOTICE LITTERS
1. Whether to Issue Removal Notice
The Regions should attempt to contact PRP5 prior to
initiating a Fund-financed removal action to inform PRP5 of their
potential liability where EPA will incur response costs or
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to secure a private party response. This guidanc. encourages the
Regions o. seek PRP response through a written notice letter but
the Regions may contact PRP5 verbally (with a written follow-up
notice). This is consistent with the guidance on “ ssuancs of
Administrative Orders for Immediate Removal Actions” (2/31/84).
The Regions should issue notice letters to readily
identifiable PRPs for removal actions in the vast majority of
cases. The content of the notice will vary depending whether the
notice will be used simply to notify PRPI of their potential
liability for an action EPA has already taken or is about to
take, whether the notice will be used to encourag. a private
party response through “informal” negotiations (i.e. negotiations
not triggered by the 1122(e) special notice procedures), or
whether the notice will be used as a mechanism for invoking the
1122(e) special notice procedures which provide for “formal”
negotiations between EPA and PRPs.
2. Wh•n to Use Special Notice Procedures for Removal .
The Regions should consider using the 1122(e) special notice
procedures only for those removals where ths threat is of a
nature that it is not necessary to initiate an onsite removal
action for at least six months. The “six mq th planning time
period” begins once the site evaluation is completed. This means
that for the vast majority of removal actions the Regions will
not be required to utilize tk e special notice procedures. It is
not appropriate to utilize special notices for most removal
actions because the subsequent moratorium may interfere with the
Agency’s ability to implement the remedy in a timely manner. In
addition, it may not be worth expending the time and resources to
enter into formal negotiations when a removal will be a
relatively short term and inexpensive response action.
The Regions should include the following factors in their
determination of whether it is appropriate to utilize the special
notice procedures for removals with a six month planning lead
time: 1) whether viable PRP5 have been identified. 2) whether
the PRPs are expected to respond favorably to the invitation to
participate in negotiation, and to conduct or finance the removal
action, 3) whether issuance of th. special notice could delay
implementation of the removal action, and 4) whether it may be
more appropriate to enter into “informal” negotiations in lieu of
“formal” negotiations under 1122(e).
In determining the PRPs viability, the Region should inquire
about the PU. financial and technical capability for conducting
and/or financing the removal action in an effective and timely
manner. In determining the PUs willingness to undertake or
finance the removal action, the Region should, at a minimum.
obtain a verbal agreement from the PUs prior to issuance of the
special notice. In determining whether the special notice may
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delay implementation of the remedy or in determining whether to
enter into “informal’ rather than “formal” negotiations, the
Regions should consider whether the 5122(e) negotiation
moratorium would interfere with other activities at the sit..
3. Notifyinc PRPs When Not A DroDriate to Utilize
S ecia1 Notice Procedures for Removals
EPA’s decision on whether to use the special notice
procedures for any response action is clearly discretionary.
However, 1122(a) requires the Agency to notify PRPs in writing
when the Agency decides not to utilize such procedures. The
removal notice provides a convenient vehicle for informing PRPs
of EPA’s decision not to utiliz, the special notic. procedures.
The notice should, therefore, inform PRP5 of EPA’s decision not
to utilize such procedures when this determination has been made
and should provide an explanation for that decision.
4. DOJ Role in Removal Neaotiatjons
The Regions should consult with the Chief of the
Environmental Enforcement Section of DOJ prior to issuing a
special notice letter for removal actions where settlement by
consent decree is contemplated, or where the settlement is
expected to involve a compromise of past or future response costs
and the total response costs will exceed $500,000. The Regions
should consult with DOJ pria to releasing a draft consent decree
to PRPs.
5. Timing of Removal Notice
A removal notice that does not invoke the special notice
procedures should be provided to PRP5 as soon as practicable.
For removal notices that invoke the special notice procedures,
the notice should be issued as early am possible but no later
than 120 days before the scheduled date for initiating the
removal action. The scheduled date for initiating the removal
action is th. date removal extramural cleanup contractor funds
will, be obligated and onsite cleanup will bgin.
The timing of a notice which invokes the special notice
procedures is critical because issuance of the notice triggers
the subsequent 60 to 120 day moratorium on EPA conduct of the
removal action. (The moratorium would last only 60 days in
instances where the PRP5 do not provide EPA with a “good faith
of fer”. Issuing the special notice at least 120 days before EPA
will begin the removal ensures that the subsequent 120 day
moratorium does not affect EPA’s ability to implement the removal
action in the event negotiations do not result in an agreement
for PRP conduct of the removal action.
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983410
27
6. Recipient! of Removal Notice
The removal notice should be sent to all parties where there
is sufficient evidence to make a preliminary determination.. of
potential liability under 5107 of CERCLA. If a Federal agency
has been identified as a generator at a facility not
owned/operated by the Federal agency, such agency should be
routinely notified like other PiP..
Copies of removal notices should be provided to the Regional
administrative record coordinator, th. appropriate State
representative, and to headquarters. Providing copies to the
administrative record coordinator is important for •nsuring that
the notice to b. placid in the record. Providing copies to the
State representative is important for ensuring that States are
appropriately informed about possible futur. negotiations.
Providing copies to the Information Management Section
within the Program Management and Support Of f ice of the Office of
Waste Programs Enforcement for entry into the Superfund
Enforcement Tracking System (SETS). Copies should be sent to
OWPE at the same time they are sent to PiP.. Providinq copies to
OWPE is essential for facilitating our efforts to track sit.
activities and to respond to Congressional and other inquiries.
It is not necessary to provide copies of each removal notice
to the administrative record coordinator, State representative.
State or Federal trustee, or headquarters in instances where
identical notices are provided to multiple Pipe. Where there are
multiple PRP5 at a site, a copy of one removal notic. with a list
of other parties who have received the letter would suffice.
7. Contents of Removal Notice
As indicated, the content of the removal notice will vary
depending upon whether the purpose of the letter is to simply
inform PRP. of their potential liability or whether the letter
will also be used to provide an opportunity for PiP involvement
in negotiations either through “informal” or “formal”
negotiations. The following highlights the components that
should be included in the three different types of removal
notices. The specific content of each component of the removal
notice should be essentially the same as described earlier for
RI/PS and RD/iA general and special notices, except where
otherwise specified.
a. Notice of potential liability : If the purpose of the
removal notice is simply to inform PRP5 of their potential
liability and to provide notice that the Agency has or a about
to take a response action, the notice should contain the
following components: a notice of potential liability; a
discussion about site response activities that have been or w ll
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9834.10
28
be conducted at th• sit•; a notice on the availability of an
adminjstrat4v. record; and a notice pursuant 1122(a) that th.
special notice proc.dures will not be used.
The notification under 11 .22(a) should inform PftPs that the
Agency will not (or did not) use the 1122(e) special notice
procedures for this particular response action and should provide
an explanation for that decision. The litter should indicate
that it is the Agency’s policy not to us. the special notice
procedures for removals unless there is a six month planning lead
time prier to the initiation of the response action. If the
response action does involv. a removal with a six month planning
had ti m. but the Agency made a case—specific determination not
to use the special notice procedures, the litter should provid.
an explanation why the use of such procedures was determined to
be inappropriate for that particular response action.
b. Notice of Dotential liability and oD ortunitv to enter
into “informal” negotiations : If the purpose of the removal
notice is to inform PUs of their potential liability and to
provide PUs with an opportunity to enter into negotiations with
EPA without invoking the 5122(e) special notice procedures, the
notice should contain,the following components: a notice of
potential hiabihityT a discussion about sit. respons, activities
that will be conductsd at the sit.; a copy of the statement of
work or workplan and draft administrative order on consent; a
notification pursuant to 1123(a) that the special notice
procedures will not be used; a request that PUs notify EPA
within a specified period of time of their interest to
participate in negotiations; a notice on the availability of the
administrative record; and information on the EPA representative
to contact. The 1122(a) notification should contain the same
information discussed in the proceeding paragraph.
c. Notice of notential liability and o ortunitv to .nt.r
into “formal” negotiations Dursuant to 1122(e) sD.cial notice
Droc. M;.I: If the purpos. of the removal notice is to inform
PUs of their potential liability and to provide PUs with an
opportunity to enter into negotiations with EPA using the 1122(i)
special notic. procedures, the notice should contain the
following coaponents: a notic. of potsntial liability; a
discussion about sit. response activities that will be conducted
at the site; a discussion about the special notice procedures and
the negotiation moratorium; a copy of the statement of work or
workplan and drift administrative order on consent; a discussion
about what constitutes a “good faith offer”; a request that PaPs
notify EPA within a specified period of time indicating their
interest to participate in negotiations; a notice on the
availability of the administrative record; and information on the
EPA. representative to contact. The “good faith offer” should
contain essentially the same components as described above for
the RD/RA.
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9834,10
29
1. CONCLUSION OF NEGOTIATION MORATORIUM AND
DEADLINE MANAGEMENT FOR REMOVALS
At the conclusion of the 1122(e) negotiation moratorium for
removal actions, the Regions should have a fully n.gotiated
administrative order on consent which has been signed by the
PR?.. (Where appropriate, a signed consent decree should be
provided). A signed administrative order on consent (or a
consent decree) will show that the negotiations have been
successfully completed.
The expectation is that the ncgo istions will be concluded
at the end of the 120 day moratorium and the Regions are strongly
encouraged to conclude the negotiations within this period of
time. In instances where the negotiations do not result in an
agreement. the Regions may seek an extension to the 120 day
moratorium, issue an administrative order, or proceed with a
Fund—financed removal. Note that the Regional Administrator may
grant an extension to the 120 day moratorium only in limited and
appropriate circumstances.
C. ADMINISTRATIVE ORDERS AND NEGOTIATION MORATORIUM
FOR REMOVALS
In most instances, use of the special notice procedures for
removal actions will not affsct existing policy on issuing
administrative orders for removals since the special notice
piocedures will be issued for only a small portion of removals.
For details on the Agency’s policy on administrative orders r.fer
to th. guidance on “Issuance of Administrative Orders for
Immediate Removals” (2/21/84).
It is necessary, however, to modify existing policy in on.
respect. In instances where Regions use the special notice
procedures for a removal action and where issuance of an
administrative order is necessary and appropriate, the Regions
should not issue the order until the end of the negotiation
moratorium. This ensures that the negotiation moratorium will be
used to negotiate voluntary settlements.
VII. DI LAJ!R
The policies and procedures established in this document
are intended solely for the guidance of Government personnel.
They ar. not intended and can not be relied upon to create any
rights, substantive or procedural, enforceable by any party in
litigation with the United States. The Agency reserves the right
to act at variancs with these policies and procedures and to
change them at any time without public notice.
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983410
30
VIII. FOR FURTHER INFORMATION
For further information or questions concerning this
guidance, please contact kathy HacXinnon in the Offic, of Waste
Programs Enforcement at FTS—475—6770.
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9834,10
Appendix A
Timing of RD/RA Special Notice Letter
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A. General Approach: Issue RD / RA Special Notice When Release
Draft FS and Proposed Plan
Selection of Remedy Process
I. - Co
_________IIII II1 [
RWS FSIP opos.d mere
Man
I I
Nolics and
Extonded
NegoIi bn
NegoII on
M m
M
Special Notice! Negotiation Moratorium
L I I I I I I I I I I
— — — \0
0 18 19 20 21 22 23 24 25 26 27 28 29
Timeline (Months)
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B. Alternative Approach: Issue RD / RA Special Notice Prior to
Release of Draft FS and Proposed Plan
Selection of Remedy Process
OfldUCl Release Release ROVIOW I EII] t
RIIFS SI1II1Q FSlPicpoeed meld ROD
el Allem lves Pt i _____
I ,
Nolk e and
Extended
p—
—
m
M m
Special Notice! Negotiation Moratorium
L... — — I I I I I I I —
0 18 19 20 21 22 23 24 25 26 27 28 29
Timeline (Months)
-------
C. Alternative Approach: Issue RD I RA Special Notice Once ROD
Selection of Remedy Process
Nodcaml
Exlendsd
Negollation
NegolIat n
Mo m
Moratorkin
Special Notice I Negotiation Moratorium
______ ‘0
C D
( - ‘4
.
I I I I I I I I
0 18 19 20
I I 4I
21 22 23 24 25 26 27 28 29
Signed
L.. — — —
Timeline (Months)
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9834 j
Appendix B
PRP Settlement Process for RI/PS and
RD/RA
-------
PAP Seftiement Process for RI I FS
c x ,
.
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PRP Setfiement Process r RD I RA
0
(J
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DraftGuidance on CERCLA 106
Administrative Orders for Removal Actions
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it0 S 4p
— —
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
4 L • $ 4 C•
JUN I 9 t989
—C —
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Draft Guidance on CERCLA §106 (a) Administrative Orders
for Removal Actions
FROM: John Cross
- Office of Waste Programs Enforcement
TO: Oil and Hazardous Materials Coordinators
Regions I-X
We are circulating an early draft of the Guidance on CERCLA
§ 106(a) Administrative Orders for Removal Actions at this time to
facilitate your discussion of §106 orders at the upcoming Removal
Managers’ meeting. The guidance is in preliminary form, and will
be subsequently circulated for comment to Regional Enforcement
Branch Chiefs and Regional Counsel.
The guidance is designed to reflect statutory changes
implemented by SARA and changes in Agency policy due to Agency
experience. The guidance is also consistent with the Agency’s 90
Day Review Report and concepts endorsed by the Sett1ei ent
Incentives and Disincentives Work Group. An endorsed draft
guidance is expected to be distributed formally by the end of
this summer jointly by OWPE and OECM.
If you wish to submit written comments on the draft
guidance, please send them by pouch mail to Kathryn Nolan at EPA
Headquarters, OWPE, OS-510. If you have any questions concerning
this guidance, she can be reached at (F S) 382—2034. Thank you
for your assistance in the review of this document.
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MEMORANDVM
SUBJECT: Guidance on Issuance of CERCLA §106(a)
Administrative Orders for Removal Actions
F1OM: Jonathan Z. Cannon, Acting Assistant Administrator
Solid Waste and Emergency Response
Edward E. Reich, Acting Assistant Administrator
Enforcement and Compliance Monitoring
TO: Regional Administrators,
Regions I-X
. Introduction
This memorandum sets forth procedures regarding issuance o
§106 (a) administrative orders for removal actions under the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended by the Superfund mendments and
Reauthorization Act of 1986 (CERCLA or Superfund). This guidance
applies to unilateral enforcement actions and settlement agreements
for potentially responsible party (PRP) conduct of removal actions
based on §106 of CERCLA. It is designed for use by On—Scene
Coordinators (OSC), Office of Regional Counsel (ORC), and Removal
Program Managers. For additional guidance on legal issues related
1 For guidance on the general purposes and principles of
the Agency’s administrative order authority under § 106(a) of
CERCLA, and more detailed procedures on implementation of that
authority, see the (date) memorandum, “Guidance on CERCLA § 106(a)
Administrative Orders for Remedial Actions” (OSWER Directive number
XXX). These memoranda together supersede the September 8, 1983
“Guidance Memorandum on Use and Issuance of Administrative Orders
Under §106(a) of CERCLA” (OSWER Directive number 9833.0) and the
February 21, 1984 guidance on “Issuance of Administrative Orders
for Immediate Removal Actions” (OSWER Directive number 9833.1A).
Changes to the guidances are the result of statutory amendments and
Agency experience.
2 For a discussion of general principles governir
settlement agreements, see the Interim CERCLA Settlement Polic
dated December 5, 1984 (OSWER Directive number 9835.0).
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to §106 administrative orders, see the memorandum entitled
“Guidance on CERCLA § 106(a) Administrative Orders for Remedial
Actions” (OSWER Directive number XXX).
In order to successfully conduct the largest number of
removals, the Agency must secure private party response actions.
To accomplish this, in appropriate circumstances, the Agency
negotiates settlement agreements embodied in §106 (a) consent
administrative orders (consent orders) with parties willing to do
the work. The Agency issues §106(a) unilateral administrative
orders (unilateral orders) when private parties are not willing to
undertake work as part of a consent order.
Private party removals serve an important function in the
Superfund response and enforcement process. Private party removals
can free up the Fund for additional removal actions at sites
without financially viable PRPs. PRPs are also introduced to the
Superfund enforcement and settlement process, and therefore are
more likely to cooperate if subsequent response actions are
necessary. Finally, when private parties conduct the removal
action, it eliminates the need for subsequent cost recovery
actions, which frequently demand considerable time from Regional
technical and legal staff, and frequently occur under statute of
limitations deadlines.
II. Genera]. Procedures for Enforcement Removal Actions
Civil investigators working together with the OSC should
conduct a PRP search immediately after the OSC determines the need
for a removal action. While the OSC determines the scope of the
removal, the OSC and/or ORC should develop an enforcement strategy.
The exigencies of the circumstances, particularly in an emergency
removal context, will affect the enforcement approach.
PRP Notification
Once PRPs have been identified, OSCs should notify them in
writing that EPA is planning to conduct a response action at the
site and that they are potentially liable. The notice should state
that PRPs may agree to conduct the response action through a
Appendix A of this document defines the two types of §106
administrative orders and distinguishes them from their judicial
counterpart . For guidance on the role of §106 judicial actions
and procedures to follow for their implementation, see the
memorandum, “Guidance on CERCLA Section 106 Judicial Actions,”
(Reich/Porter, 2/24/89) (OSWER Directive Number 9835.7). For
information on issuing §106 unilateral administrative orders to
Federal facilities, see “Enforcement Actions under R RA and CERCLA
at Federal Facilities,” dated January 25, 1988 (OSWER Directive
number XXX).
2
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settlement agreement with the Agency. Although time may not permit
settlement negotiations at sites where a true emergency exists, the
Agency should attempt to notify all known PRPs prior to conducting
any response action. OSCS may send this notice prior to fully
delineating the scope of the removal. Advance notice to PRPs is
particularly important at sites with multiple PRP8. To expedite
the settlement process in time—critical situations, OSCS may
initially contact PRPs orally. Oral notification should be
followed by written confirmation. Written notice to PRPs at time-
critical removal sites may take the form of a general notice letter
or a CERCLA § 122(a) letter. There is no need for oral notification
at non—time—critical removal sites. At non—time—critical removal
sites, OSC5 should notify PRPs through special notice letters or
CERCLA §122(a) letters. The Agency should issue CERCLAI §122(a)
letters when a decision is made not to issue special notice at a
site. For examples of all three letters, see Appendix C of this
guidance. For further information concerning special notice
procedures, see the “Interim Guidance on Notice Letters,
Negotiations and Information Exchange” (Adams/Porter JJ_) (OSWER
directive number 9834.10), 53 Fed. Reg. 5298 (1988).
Action Memorandum
Following PRP notice, OSC5 should finalize the scope of the
removal, determine whether to enhance the PRP search, and begin PRP
negotiations. At the start of negotiations, OSCe should providv
PRPS with a document which summarizes the work required at the sit
(a statement of work) and establish a negotiations deadline. The
statement of work should be accompanied by a draft consent order
prepared by the Superfund Enforcement personnel and reviewed and
approved by ORC.
A signed Action Memorandum should be prepared during
negotiations. An Action Memorandum serves several purposes in
addition to its traditional function of authorizing Fund financing
at sites. During negotiations, it notifies PRP5 that the Agency
has the finances to conduct the removal with the Fund, and sue for
treble damages. A signed Action Memorandum also constitutes an
important part of the administrative record for the removal action
response decision, and will be critical in any enforcement case
initiated to enforce a unilateral order, in the event that an order
is issued. A confidential addendum to the Action Memorandum sets
forth the enforcement strategy.
Unilateral - D ders/Consent Orders
If PRPs agree by the negotiation deadline to conduct the
removal, a consent order should be signed. If PRPs do not agree
by the negotiation deadline to conduct the removal, the
negotiations team should strongly consider issuing a unilateral
order. Unilateral orders, should routinely be issued in cases which
meet the criteria set forth in Part V of this guidance. Issuanc-
3
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D T
of a unilateral order should be onsidered prior to either Fund
financing or a judicial referral. Unilateral orders give PRPs a
final opportunity to participate in the cleanup process before a
court compels them to do so. Under unilateral orders, PRPB incur
liability for the cleanup, penalties and damages. Moreover,
issuing a unilateral order prior to judicial referral should
further support record review of the Agency’s response action in
any subsequent court proceeding.
If PRPs ask to settle with the Agency as they prepare the
first deliverable under the unilateral order, OSCs and ORC may
attempt to negotiate a consent order with the PRPs. Consent orders
are beneficial to the A%ency because EPA may recover past costs
through a consent order. However, in most situations, PRPS have
already been given an opportunity to settle with the Agency prior
to this point. Therefore, if PRPS do not 6 readily agree to sign a
consent order during these negotiations, negotiations should be
terminated and PRP conduct of the response action should continue
under the unilateral order.
If PRPs agree to conduct the removal but not to sign a consent
order, and the case does not meet the criteria for a unilateral
order (i. e • no imminent and substantial endangerment), the Agency
may conduct the removal with Fund finances. Where there are
special circumstances, and where Fund financing is not available,
PRPS may proceed with conduct of the removal under Agency
oversight. At the outset of such PRP action, ORC must provide
written notice to these PRPs. The written notice should notify
PRPS that they will continue to be liable in the event that a
subsequent response action is required at the site. This written
notification protects the interests of the Agency in the event that
the response action is not fully or adequately executed.
Oversight
Under both consent and unilateral orders, oversight should be
conducted routinely to ensure PRP compliance with the terms of the
order. OSCs must immediately bring work corrections and missed
milestones to the PRPs’ attention. Under a consent order, PRPs
S .. Appendix A, Part II for an explanation of a judicial
referral.
5 Under—p unilateral order, past costs may be obtained through
a demand letter or a cost recovery action.
6 Any compromise of past costs must be conducted under the
authority of CERCLA §122(h)(l). If a past cost is compromised and
total past additional response costs at the site (i.e. work and
money) exceed $300,000 excluding prejudgment interest, prior
written approval of the compromise must be obtained from DO).
4
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D T
will be liable for stipulated penalties for noncompliance. Th..
Agency should be prepared to obligate the Fund and/or refer the
case to the Department of Justice (DOJ) should it be determined
that the PRP does not intend to comply with the order. Through a
judicial referral, the Agency may obtain stipulated penalties, §106
daily penalties, and/or PRP compliance with the order.
III. Statutory Reauirements for Issuina §106(a) Consent and
Unilateral Administrative Orders
Section 106(a) administrative orders for removal actions must
meet several statutory requirements. These statutory requirements
apply to both removal consent and unilateral administrative orders.
The Action Memorandum should already contain the information needed
to support these statutory requirements. OSCs should ensure that
this information is adequately contained in the Action Memorandum.
Superfund Enforcement Personnel and/or ORC should consult the
Action Memorandum when drafting the removal consent and/or
unilateral order.
The statutory requirements which apply to both consent and
unilateral orders are described in numbers 1 — 4 below. The fifth
statutory requirement set forth below applies only to unilateral
orders.
1) Evidence of a Release or Threatened Release of a Rasardo,
Substance
A removal action may be funded by the Agency when there is
information regarding release or threat of a release of a hazardous
substance. Similarly, a unilateral order may be issued under
section 106 where there is a release or a threatened release of a
hazardous substance. The nature of the determination of the
release or threat of release should be identified in the order.
The hazardous substances that are the subject of the release
or threat of release should be documented in the Action Memorandum.
At least some of the hazardous substances should be referenced in
the order as well.
2) Evid.nc. that the Release or Threatened Release is from a
Pacility
The order should specify the physical location of the release
or threatened release. This establishes that the release or
threatened release is from a facility as defined in CERCLA §101(9).
7 See CERCLA section 101(22) for the definition of a release.
CERCLA section 101(14) defines hazardous substances; see also 40
C.F.R. § 302.4.
5
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DRAFT
3) Evidence of I {nent and Substantial Endangerment
The term imminent and substantial endangerment has a
particular meaning in environmental statutes. An endangerment is
a threatened or potential harm; actual harm need not be shown. An
endangerment may be imminent if the conditions which give rise to
it are present, even though they may not be realized for years.
When §106(a) administrative orders are issued for removals, the
data base available to support an endangerment finding may be
limited. It will most likely consist of information from the
inspection and preliminary sampling data. This information should
be documented in the Action Memorandum and referenced in the
unilateral order.
4) Notice to Affected State
Regions must notify the state prior to issuing a unilateral
order. The affected state is interpreted to be the state where the
facility with the release or threatened release is located.
Written notification to the state should precede Federal action,
if possible. When rapid response at a site is necessary, notice
may be provided in a telephone call from the EPA Division Director
to the director of the state lead agency responsible for the CERCLA
program. Written confirmation of oral notice always must follow.
5) Persons who may Receive Unilateral Orders
The classes of persons who may receive unilateral orders
include, at a minimum, the four classes of parties who are liable
under section 107 of CERCLA. These classes generally are (1)
present owners and operators, (2) past owners and operators at the
time of disposal, (3) persons who arranged for treatment or
disposal, and (4) transporters who selected the site. In addition,
other persons may receive unilateral orders to assure relief. For
example, unilateral orders may be issued to obtain the necessary
cooperation of parties indispensible to completion of a response
action.
See the previously mentioned guidance on §106 remedial
administrative orders if greater detail is needed concerning these
statutory requirements.
fl. Elements of Unilateral Administrative Orders
In addition to statutory prerequisites that must be satisfied
before unilateral orders may be issued, other substantive elements
are usually included in unilateral orders. These elements are
necessary for the unilateral orders to be both enforceable and
6
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D a = ‘
effective A unilateral order should contain the followint
sections:
o Introduction and Jurisdiction;
o Parties Bound;
o Findings of Fact;
o Conclusions of Law and Determinations;
o Notice to the State;
o Work to be Performed;
o Quality Assurance;
o Modification of the Work Required;
o Compliance with Other Applicable Laws;
o Designated Project Coordinators and OSC Authority;
o Progress Reports, Notice of Delay;
o Access and Data/Document Availability;
o Administrative Record, Record Preservation;
o Reimbursement of Oversight Costs;
o Further Enforcement, Reservations, and Disclaimers;
o Effective Date/Subsequent Modification;
o Opportunity to Confer; and
o Termination and Satisfaction.
The guidance on §106 remedial administrative orders contains
a discussion of the following provisions: Findings of Fact;
Conclusions of Law and Determinations; Work to be Performed;
Effective Date; and Opportunity to Confer. See also the Model
Unilateral Order for Removals, dated XXX (OSWER Directive number
XXX). -—
8 Although a znilateral order for a removal action should
include an assertion t iat the removal action is consistent with the
NCP, it is recognized that the NCP expressly exempts from certain
provisions of its coverage removals conducted by PRPs pursuant to
§106 of CERCLA. See 40 C.F.R. Part 300.65(h).
7
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D
y Factors for tssuin Unilateral Orders in Removal Actions
The following factors should be considered when issuing
unilateral orders for removal actions. These factors differ from
§106 judicial action factors because unilateral orders serve many
different purposes. For a discussion of the policy criteria
relevant to §106 judicial actions, see the Guidance on CERCLA
Section 106 Judicial Actions, mentioned previously.
A) Immediacy of the Need to Respond
Generally, it will not be possible to issue unilateral orders
for true emergency removals. At time—critical removal sites, if
there is sufficient time (e.g., two weeks) before on—site activity
must begin, a unilateral order may be issued. Alternatively, the
Regional office may wish to stabilize site conditions and issue a
unilateral order for the remainder of the removal action.
There is sufficient time at non—time—critical removals to
issue a unilateral order before on—site activity must begin. By
definition, non—time—critical removals have a planning period of
more than six months before on—site activity must begin.
B) PRPS are Liable and No Indication that they are not
Financially Viable
Unilateral orders should only be issued to PRPs for whom the
Agency has sufficient evidence as to their liability. Information
documenting PRP liability should have been secured through PRP
searches, including §104 information requests. Unless there is
information to the contrary, the Regions should assume that PRPs
have the financial capability to conduct the removal.
C) The Response Action should be Specifically Defined
The unilateral order should define the removal response action
with enough specificity to instruct the PRPs as to what is expected
of them. A clearly defined response action is also necessary for
the Agency to determine whether the PRPs have complied with the
order. Where possible, this information may be directly
incorporated into the unilateral order from the Action Memorandum.
Where site conditions necessitate a “decide as proceed” approach
and the removal action cannot be specifically defined, a unilateral
order generally should not be issued.
D) Unique Technical Problems/Oversight
Where a removal action presents unusual implementation
difficulties for the PRPs, or unique technical problems which may
present unusual oversight difficulties for the Agency, the site may
be inappropriate for a unilateral order.
8
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E) PRP Technical Inability/Lack of Trustworthiness
Due to the technical inability of the PRPs, and/or their lack
of trustworthiness, the Agency’s oversight of nonsettling PRP5 may
differ from that of settling PRP5, despite the fact that PRPs
operating under unilateral orders are subject to daily penalties
for failure to comply with the terms of the order. Therefore,
Regional offices should consider the technical ability of the PRPs
and/or their trustworthiness prior to issuing a unilateral order.
F) Very Low Cost/Low Priority
Removal actions estimated to cost relatively little to
conduct, and/or removal actions which are low in priority, may not
be appropriate for unilateral orders.
G) Resources
If critical legal staff are not available to assist in a
removal enforcement action, OSCs may conduct the cleanup through
Fund financing, or stabilize the site and postpone enforcement
action until enforcement resources are available.
VI. Follow—UD Procedures for Unilateral Orders
Agency policy is to provide PRP5 an opportunity to discus
implementation of a unilateral order with the Agency. The
conference is not an adversarial hearing and does not constitute
part of a proceeding to challenge the order. Instead, the
conference is designed to ensure that the order is based on
complete and accurate information, and to facilitate
implementation. See the guidance on §106 remedial administrative
orders for further information on the conference. In the case of
removals without much lead time, the Agency may provide less formal
conference procedures than that described in the §106 remedial
administrative order guidance.
In the event of noncompliance with the unilateral order,
Regions have flexibility to take one of the following actions:
seek penalties to compel compliance with the order, takeover the
project and utilize Fund financing, or seek a court order
compelling PRP conduct of the removal action. Where the OSC
decides that site specific circumstances require an immediate
response, or the ORC assesses our likelihood of success at court
to be minimal, Regions should utilize Fund financing. Therefore,
9
-------
DR T
site circumstances may dictate the proper course of action. 9 The
Agency may need first to stabilize the site before referring a case
to DOJ’. For further information, see the guidances on §106
remedial administrative orders and §106 judicial actions.
VII. Note on PurDose and Use of this Memorandum
The policy and procedures set forth herein, and internal
office procedures adopted pursuant hereto, are intended solely for
the guidance of attorneys and employees of the U.S. Environmental
Protection Agency. They are not intended to, nor do they
constitute rulemaking by the Agency, and may not be relied upon to
create a right or benefit, substantive or procedural, enforceable
at law or in equity by any person. The Agency may take any action
which is at variance with the policies or procedures contained in
this memorandum, or which is not in compliance with internal office
procedures that may be adopted pursuant to these materials.
If you have any questions concerning any material contained
herein, please call Kathryn Nolan (FTS) 202-382-2034 of the Office
of Waste Programs Enforcement.
Under Agency policy, Regions have discretion to determine
the proper course of action in the event of PRP noncompliance with
unilateral orders. Regions have discretion to take courses of
action other than Fund financing followed by cost recovery.
10
-------
L r MrT
APPENDIX A
ADMINISTRATIVE AND JUDICIAL SETTLEMENT AND ENFORCEMENT TOOLS
I. Administrative Enforcement
Settlement: §206 Consent Administrative Orders
The Agency bases its removal settlement agreements on section
106 of CERCLA. Removal settlement agreements may be encompassed
in §106 consent administrative orders or consent decrees. If PRPs
do not adequately comply with §106 consent orders, the Agency may
pursue stipulated penalties, §109 monetary penalties, and §106
daily penalties through a referral to DO3 (see below).
No Settlement: §2.06 Unilateral Administrative Orders
Where there is no settlement agreement, unilateral orders may
be used to compel PRPs to conduct removals. Upon receipt of
unilateral orders, PRPs may comply with the terms of the orders and
conduct the removal, or they may decide to settle with the Agency.
If PRPs decide to settle, the unilateral orders may be replaced
with a consent order.
If PRPs do not comply with the unilateral order, a court ma”
impose daily fines under §106(b) (1), and/or punitive damages in
amount up to three times that expended from the Fund. Puniti\
damages may be obtained only in the event of a cleanup financed by
the Fund. Therefore, if a settlement agreement cannot be reached,
Regions should consider issuing a unilateral order. This
facilitates Agency collection of penalties or punitive damages for
noncompl lance.
II. Judicial . Enforcement
Noncompliance with the Order: §206 Judicial Actions
Administrative orders are not self-enforcing, nor can the
Agency enforce them without assistance from the pertinent Federal
District Court. The Agency seeks enforcement of its administrative
orders in court through the assistance of the Department of Justice
(DOJ). If PRPs refuse to comply with a unilateral order directing
them to conduct a removal, and circumstances at the site do not
require mediate site cleanup with Fund finances, the Agency
should refer the case to DOJ. DOJ will file the case in court for
judicial enforcement. Even if the Agency cleans up the site with
Fund finances, the Agency may refer a case to DOJ for the
collection of penalties or damages, along with a cost recovery
action for Fund expenditures, from recalcitrant PRPs. Referrals
to DOJ are necessary whether the Agency seeks compliance with the
order or penalties. Referrals to DOJ are made through a section
106 judicial action.
-------
.I. -
APPENDIX B
Removal Actions——Scope of Response
Section 101(23) of CERCLA defines the term “removal” to
include a variety of activities. Removal activities include, among
others: monitoring, assessing and evaluating the release or threat
of release of hazardous substances; disposal of removed material;
measures to limit access; provision of alternative water supplies;
and temporary evacuation and housing of threatened individuals not
otherwise provided for. The National Contingency Plan and the
February 1988 “Superfund Removal Procedures, Revision Number Three”
(OSWER Directive number 9360.0-03B) divide the statutory concept
of removals into Classic Emergencies, Time—Critical, and Non—Time—
Critical removal actions. These determinations are based upon the
site evaluation which examines the immediacy and the severity of
the hazard to public health and the environment. The categories
establish a scale for assessing the length of time within which the
Agency must respond to an event. Once a site has been categorized,
it does not change categories.
Classic emergency removal actions are undertaken if a release
or threat of release requires response within hours of the lead
agency’s determination that a removal action is necessary. In
classic emergency removal actions, on—site activity often lasts
less than 30 days. During classic emergencies, response personnel
may need to base their decisions on relatively limited data and act
quickly. As a result, it is often difficult to ensure an adequate
PRP response. Common examples of classic emergency removal actions
include road accidents and spills, or fencing of a contaminated
area.
Time—critical removal actions are those where, based on the
site evaluation, the lead agency determines that a removal action
is appropriate and that less than six months is available before
cleanup activities begin on-site. Examples of time—critical
removal actions include removal and transport of drums, barrels,
tanks, or other bulk containers that contain or may contain
hazardous substances to a RCRA—approved facility, or containment
of wastes until a more in—depth study of the site can be conducted.
Once site activity has been begun within six months and a site has
been categorized as time critical, it does not change category to
non—time—critical regardless of when the response is completed.
Non—time—critical removal actions are those where, based on
the site evaluation, the lead agency determines that a removal
action is appropriate and that a planning period of more than six
months is available before on—site activities must begin. For non—
time—critical removals, extensive data collection and analysis is
conducted to more compl tely document the actual or potential
health and environmental threat. The lead agency for non—time—
critical removals will undertake an engineering evaluation/cost
artalysis (EE/CA) or its equivalent. EE/CAs contain evaluations of
-------
a
possible alternative technologies, selection of the response, anL
documentation of the decision-making process. EE/CA5 use a
screening process and analysis of removal options based upon such
factors as technical feasibility, institutional considerations,
reasonableness of cost, timeliness of the option with respect to
threat mitigation, environmental impacts, and the protectiveness
of the option. This information will be subject to review and
comment by the public prior to initiation of the affected removal.
Non—time—critical removal actions include activities such as
containment, treatment, disposal, or incineration of hazardous
materials, or stabilization of berms, dikes, or impoundments.
-------
Interim Final Guidance on Removal Action
Levels at Contaminated Drinking Water Sites
-------
ilO 3T j
UNITED STA rES v’. tRONMEN o rEc ricjui , c .”c”
____ wASHI ’TON C ..
•
ocr 6198?
FFuca O
SOLIO WASTE . ‘iO a’.Ia GENC • RESPONSE
MEMflRANDUM
SURJECT: Interim Final Guidance on Removal Action Levels at Contaminated
Drinking Water Sites (OSWER Olrectiye7J6O.1 —1O)
FROM: 1enry 1. Longest II, flirector eYIJ If
)ffice of Emergency and Remedial
TO: Waste Management Division Directors, Regions I—X
Environmental Services Division Directors, Regions I, VI and VII
Attached is the Interim final guidance on removal action levels at
drliking water contamination sites. This guidance Is effective inmied lately.
The EPA Office of flrlnklng Water (00W) and the Agency for Toxic Substances
and 3lsease Registry (ATSDR) will also be developing guidance documents
related to drinking water contamination In the near future. OERR will ‘)e
working with 00W and ATSOR in an attempt to ensure a consistent approach
between the agencies.
Questions or cosanents regarding this guidance or appropriate removal
action levels should be directed to Jean Schumann, Emergency Response 3lv lsion,
WH-5488, FTS 382—4671.
Attachment
cc: Jack McGraw
Tom Devine
Gene Lucero
Marcia Williams
Walt Kovalick
Tim Fields, ERO
Russ Wyer, HSCfl
Steve Lingle. HSED
Art Welssman, PAS
Michael Coolc, 0 (1W
Mark r eenwood, QGC
William Farland, CAG
Superfund Branch Chiefs, Regions I-X
OHM Coordinators, Regions I-X
Mark Bashor, ATSOR
-------
OSWER Directive 9360.1-10
REMOVAL ACTION LEVELS FOR CONTAIIINATED DRINKING WATER SITES
Introduction
The purpose of this guidance is to establish “action levels” for providing
alternatewater supplies under Superfund removal authority at contaminated
drinking water sites. The action level Is the primary criterion that must be
met for a site to qualify for removal response. The action levels established
in this guidance must generally be satisfied before removal authority can be
used at either National Priorities list (NPL) sites or non—NPL sites.
Under the 1982 National Contingency Plan (NCP), removal actions were taken
in response to “Immediate and significant” threats to human health or the
environment. The removal program used the 10-Day Health Advisory as the principal
benchmark to identify those drinking water contamination incidents that posed
the most acute threats to human health. The November 1985 NCP broadened removal
authority by authorizing response in situations that present a “threat” to
human health or the environment. Therefore, removal actions may now be taken
in less urgent situations than under the 1982 NCP.
In response to this expansion of removal authority, the Office of Emergency
and Remedial Response (OERR) is revising removal program action levels for
contaminated drinking water sites. This guidance expands the previous policy
In a number of ways. First, the numeric action levels are now based on levels
that are protective for a lifetime exposure rather than a 10—day exposure.
Second, both carcinogenic and non-carcinogenic health effects are considered.
Third, a reduction factor is used for volatiles to account for exposure due to
inhalation. Finally, additional guidance is provided on the use of site—specific
factors to trigger removal actions.
The action levels established in this guidance allow a site to qualify for
removal response if either: 1) the numeric trigger Is exceeded at the tap, or
2) site-specific factors otherwise indicate that a significant health threat
exists. The guidance also discusses information sources on health threats from
drinking water contamination, factors to consider In determining the extent of
action, action levels vs. cleanup standards, prioritizing removal sites, and
obtaining exemptions to the statutory limits for alternate water supply sites.
Action Level Based on Numeric Trigger
The.numeric trigger is calculated using a model that establishes four
different action levels, depending on whether the substance is also a potential
human carcinogen and/or volatile. The model is explained below and summarized
in Exhibit 1 . Based on this model, Exhibit 2 lists the numeric action level
for various substances that may be found in drinking water at Superfund sites.
A site may qualify for removal response if the numeric trigger for the drinking
water contaminant is exceeded at the tap of at least one residence (“residence”
includes schools, businesses, etc.). (Note that the decision to Initiate a
removal action is based on other factors as well, such as the availability of
other response mechanisms to initiate action in a timely manner.)
-------
OSWER Directive 9360.1-ic
—2-
The first step In calculating the numeric trigger Is determining whether
the substance of concern Is also a potential human carcinogen and/or volatile.
For purposes of this guidance, a substance Is a carcinogen if It falls into
categories A, B, or C of EPA’s carcinogen classification guidelines. (A sub-
stance should be considered a non-carcinogen if It Is in categories 0 or E.)
Volatile organic chemicals (VOCs) are generally of low molecular weight, high
vapor pressure, and low solubility. For purposes of this guidance, VOCs Include
those chemicals Identified as volatiles In the following documents: Test
Methods for Evaluating Solid Waste, Vol. IA, SW—846, 3rd ed., November 1986
(Chapter 2); Contract Lab Program Statement of Work, October 1986 (ExhibIt C);
Methods for the Determination of Organic Compounds In Finished Drinking Water
and Raw Source Water, September 1986 (available from Regional water program
offices); and 40 CFR Part 264, Appendix IX (analytical methods 8010 and 8240
designate volatiles).
With the substance thus classified, the second step Is to determine the
appropriate action level in accordance with the categories below:
: Non-volatile non—carcinogens -- Action level equals the Drinking Water
Equivalent Level (DWEL).*
2. Volatile non—carcinogens —— Action level equals 50 percent of the OWEL.
3. Non-volatile carcinogens -— Action level is determined by comparing the
OWEL to the ip— Lifetime Upperbound Cancer Risk Level , and choosing the
lower of the two.
4. Volatile carcinogens -— Action level is determined by comparing 50 percent
of the OWEL to the i04 Lifetime Upperbound Cancer Risk Level, and choosing
the lower of the two.
The action level for methyl ene chloride, for example, Is calculated as
follows. Methylene chloride Is a volatile and a potential human carcinogen
(classified as a “B2 ” under EPA guidelines). The OWEL for methylene chloride
equals 1750 ppb and the l.0 Cancer Risk Level equals 48 ppb. The action
level Is determined by comparing 50 percent of the DWEL, or 875 ppb, to the
Cancer Risk Level, or 48 ppb and choosing the lower of the two, which
is 48 ppb . If at least one residence has methylene chloride levels that exceed
48 ppb at the tap, the site may qualify for removal response.
This model will provide an action level for many of the substances comonly
encountered In drinking water at Superfund sites, including many solvents.
However, OERR is still working on establishing an appropriate action level for
certain substances in the two situations described below. Until action levels
are developed, most decisions regarding these substances will be made In OERR.
The modifications discussed below have been incorporated Into Exhibits I and 2.
The calculated action level for a substance Is lower than or equal to
the Maximum Contaminant Level (MCI) established under the Safe Drinking
Water Act (SOWA). For example, for vinyl chloride, a volatile carcinogen ,
the calculated action level under this model Is 1.5 ppb (1.5 ppb is the
i — Cancer Risk Level, which Is lower than 50% of the DWEL). However,
1.5 ppb is lower than the MCI for vinyl chloride, which is 2 ppb. Given
*DWEL = Reference Dose (RfD) x 70 kg
2 liters/day
-------
OSWER Oirective 9360.l-io
—3—
the limited scope of the removal program, it may not be appropriate for
the removal program to trigger removal action at levels equal to or below
the MCI. Therefore, OERR is currently examining whether It would be
appropriate to establish an alternate action level for these substances
that-Is above the MCI. Until an action level is established for these
substanCeS,.removal action may be initiated If contaminant levels exceed
the 10-Day Health Advisory. However, If contaminant levels are between
the calculated action level and the 10—Day Health Advisory, OERR will review
individual site conditions to determine If removal action should be taken.
The calculated action level is based on the DWEL, but the 10—Day Health
Advisory is lower than the OWEL . For most substances, the 10-Day Health
Advisory is higher than the OWEL. n some cases, however, the 10-day
advisory is lower than the OWEL. (This situation occurs primarily where
10-day exposure data were not available, so the 10—Day Health Advisories
were based on other studies.) For example, the action level for barium (a
non—volatile non-carcinogen) is based on the OWEL of 1800 ppb, but the 10—
Day Health Advisory for barium is 1500 ppb. OERR Is currently examining
whether It would be appropriate to use the lower 10—day advisories as the
removal action level. Until OERR determines If an alternate action level
is appropriate for these substances, removal action may be Initiated If
contaminant levels exceed the OWEL. However, if contaminant levels are
between the (lower) 10-Day Health Advisory and the DWEL, OERR will review
individual site conditions to determine If removal action should be taken.
Action Level Based on Site—Specific Factors
A significant health threat may exist even though the numeric action level
has not been exceeded. A removal action may be Initiated if the health risk at
a site has been analyzed in detail and the analysis indicates that a serious
health risk is present due to site-specific factors. Examples of such factors
Include evidence that a contaminated groundwater plume is moving, contaminant
levels will likely increase (e.g., increased pumping from an aquifer anticipated
during summer months), people have been drinking contaminated water for a long
period of time, multiple contaminants are likely to result In synergistic
effects, there are sensitive members In the population at risk, etc.
With regard to a threat based on future contamination, as a general rulø,
removal action may be warranted where It can be projected that the numeric
action level will be exceeded within 6 months. It Is important to note that
this 6 month period Is not related to the definition of time-critIcal/non-time-
critical removal actions. For example, where contaminant levels will likely
exceed the DWEL by a significant amount within 6 months, a time—critical removal
action would be appropriate. However, if contaminant levels will only exceed
the OWEL by a minimal amount within 6 months, a non—time—critical removal
action may be more appropriate. Future threat may therefore warrant either a
time—critical or non—time-critical removal action.
-------
OSUER Directive 9360.1.-jo
-4-
When conditions such as those described above are present, the site may
qualify for removal action even though a numeric Indicator has not been
exceeded. Decisions will be made on a case-by-case basis. OERR concurrence
must be obtained before approving Action Memoranda for contaminated drinking
water sites where the removal action decision Is based solely on site—specific
factors, even where site cost or time projectlons do not exceed the statutory
limits on removal actions. However, If an emergency exists based on site-
specific factors, action may be Initiated Inmiediately and OERR should be
contacted as soon as possible.
Information Sources
OWELS, as well as RfDs and other relevant standards and advisories, are
available to the Regions through the Integrated Risk Information System (IRIS).
IRIS can be accessed on-line through E-mail; type in UIRISN at the prompt
rather than “mail.” The EPA Office of Drinking Water has also established a
Safe Drinking Water Hotline, which can provide Information about relevant
standards and criteria, and treatment techniques for contaminated drinking
water. The Hotline telephone number Is 800—426—4791 (In the Washington D.C.
area, 382—5533).
Additional advice and information on health assessments at drinking water
contamination sites may be obtained from the Agency for Toxic Substances and
Disease Registry (ATSDR) and the Superfund Public Health Evaluation Manual (OSWER
Directive #9285.4—al). ATSDR may be particularly helpful In providing ad’vlce
on threats posed by site—specific factors.
OERR should be contacted If a substance of concern does not have a OWEL,
RfD, and/or cancer risk level.
Determin.ing the Extent of Action
Once it has been determined that a site qualifies for removal response
based on a numeric trigger or site-specific factors, the Region must determine
how many residences (Including businesses, schools, etc.) will receive alternate
water supplies. First, the area of impact should be estimated (both extent
and magnitude of the threat) by considering factors such as the hydrogeology
of the site, plume movement, and the likelihood of contaminant levels Increasing.
For sites where removal action Is warranted because the numeric trigger has been
exceeded at certain residences, the area of impact may be defined to include
neighboring residences which are at risk, but do not exceed the numeric trigger.
After the area of impact is defined, the number of residences to be
provided with alternate water supplies must be determined by considering cost
vs. benefits received, the statutory limits on removal actions, and the avail-
ability of other response mechanisms. For example, response to widespread
low-level contamination may be too extensive for removal action, and therefore,
may be addressed more appropriately by the remedial program. In another case,
a contaminated aquifer may affect a public water supply system and private
wells, but Superfund resources may only be needed to address the private wells.
Determining the appropriate extent of action therefore involves analysis
of both the area of impact and progranvnatic factors.
-------
OSWER Directive 9360.1-10
—5—
Action Levels vs. Cleanup Standards
The numeric action levels established in this guidance are not intended to
be used as cleanup standards. The MCL, if available, will generally be the
appropriate cleanup standard. (For guidance on the use of MCLs and MCLGs as
cleanup standards, see sulnterim Guidance on Compliance with Applicable or
Relevant and Appropriate Requirements,° July 9, 1987, OSWER Directive 9234.0-05.
Final guidance will be issued In the CERCLA Compliance with ARARs Manual.)
This means that for any residence provided with an alternate water supply, the
goal will generally be to meet MCL,s. For example, if carbon filter units
will be provided to treat drinking water contaminated with trichioroethylene
(ICE), treated water should achieve 5 ppb TCE, the MCL.
Prioritizing Removal Sites
Sites may qualify for removal action under either the numeric indicator or
site-specific factor approaches. For the purpose of prioritizing those sites
that qualify for removal action, response should be initiated as soon as possible
if contaminant levels exceed the 10-Day Health Advisory or site—specific factors
otherwise indicate that an emergency exists.
Exemption to the Statutory Limits
To obtain an exemption to the S2 million/12 month limits on removal actions
based on a continuing emergency , it will generally not be adequate to show that
contaminant levels exceed the numeric action level by some minimal amount. An
exemption may be justified If contaminant levels exceed the 10-Day Health
Advisory, significantly exceed the numeric action level, or an emergency exists
based on site—specific factors. A finding that contaminant levels exceed the
numeric action level by a minimal amount may be appropriate, however, in
‘ 1 non-emergency” situations where an exemption is based on the new consistency
wa j ye r.
Sunmtary of Policy
A contaminated drinking water site may qualify for removal response if:
1) the numeric action level (based pn the DWEL and/or the i - Lifetime
Upperbound Cancer Risk Level) is exceeded, or 2) site—specific factors
otherwise indicate the presence of a serious health threat. In prioritizing
those sites that qualify for response under this model, Regions should
give priority to sites where contaminant levels exceed the 10-Day Health
Advisory or site—specific factors otherwise indicate that an emergency
exists.
-------
OSWER Olrectf ye 9360.1—10
E.thlbltt: Summary of Action Level Decision Model
a.-
Do contaminant levels exceed the NUMERIC action level ?
Is the substance a volatile and/or potential human carcinogen?
• Non—volatile non—carcinogens -— Action level equals the DUEL.
• Volatile non—carcinogens —- Action level equals 50% of the DUEL.
o Non—volatile carcinogens - — Action level is determined by comparing the
DUEL to the 1O Lifetime Upperbound Cancer Risk Level, and choosing the
lower of the two.
• Volatile carcinogens —- Action level Is determined by comparing 50% of the
DUEL to the Lifetime Upperbound Cancer Risk Level, and choosing the
lower of the two.
Do either of the two modifications to the numeric action level apply ?
Is the nu neric action level lower than or equal to the MCI, If available? If yes:
• If contaminant levels are between the numeric action level and the 10—Day
Health Advisory, contact OERR to deternine appropriate action.
o If contaminant levels exceed the 10—Day Health Advisory, action may be taken
If the site otherwise qualifies for removal response.
If the action level is based on the DUEL, is the 10—Day Health Advisory lower
than the DUEL? If yes:
• If contaminant levels are between the (lower) 10—Day Health Advisory and the
DUEL, contact OERR to determine appropriate action.
° If contaminant levels exceed the DUEL, action may be taken If the site
otherwise qualifies for removal response.
If contaminant levels do not exceed the numeric trigger, can the site qualify for
removal response based on SITE-SPECIFIC FACTORS ?
A site can qualify for removal response If the health risk at a site has been
analyzed In detail and the analysis indicates that a serious health risk Is present
due to site—specific factors.
o ATSDR may be particularly helpful in providing advice on health risk due to
site—specific factors.
0 OERR concurrence must be obtained before approving Action Memoranda based on
site—specific factors, even where the site will not exceed the statutory
limits on removal actions.
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Exhibit &
REMOVAL NUMERI 1011 LEVELS
FOR CONTAMiNATED DRINKING WATER SITES
(ugh)
Chemical
Volatile
(Y/N)
EPA
Carcinogen
Groupa
MCI
10—Day
• HA
DWELb
io- 4
Cancer Risk
Level
‘
Removal
Action
Alachior
Barium
Benzene
Cadmium
Carbofuran
Carbon tetrachi oride
CM ordane
Chi orobenzene
Chromium (total)
Cyanide
o—Dlchl orobenzene
p—Dichl orobenzene
1 .2-Dlchioroethane
1 ,i—Dlchloroethylene
Cis-i,2-O lch loroethylene
Trans-i .2-Dichioroethylene
Dichloro 3ne/Methylene
chiorl
N
N
Y
N
N
Y
N
Y
N
N
Y
Y
Y
Y
Y
Y
Y
112
0
A
9
E
112
112
D
D
0
0
C
B2
C
D
0
112
None
1000
S
10
None
S
None
None
50
None
None
75
5
7
None
None
lone
100
i50 0 C
235
4 3C
Soc
160
63
1400
2 2 0C
8 930 c
1C 1 700C
7 40
1000 c
i000c
1 430
1500
350
1800
NA
17
175
24
1.6
1605
168
770
3115
3500
None
350
350
350
1750
15
NA
120
NA
NA
27
2.7
NA
NA
NA
NA
176
38
None
NA
NA
48
V
15
1800 d
120
17
175 d
12
1.6
753
168
770 d
1558
175
38
175
175
176
48
-------
Exhibit REMOVAL NUMERII. ,._ ION LEVELS /87
FOR CONTAMINATED DRINKING WATER SITES
(ugh)
Chemical
Volatile
(YIN)
EPA
Carcinogen
Groupa
•
MCI
10—Day
HA
DWELb
i -
Cancer Risk
Level
Removal
Action
j vel
Ie
Endrin N E 0.2 5 1.6 NA 1.6
Ethylbenzene Y 0 None 32O0 3395 NA 1698 d
Heptachior N 82 None 10 17 7.6 1.6
Lindane N C 4 1200 10 None 10
Mercury (Inorganic) Ne . o 2 l.6C 5.5 NA s.sf
Methoxychior N 0 100 2000 1150 NA 1750
Methyl ethyl ketone (MEK) Y 0 None 75 00 C 864 NA 432
Nickel N 0 None 1000 350 NA 350
Pentachlorophenol (PCP) Y 0 None 3OO lost) NA
Styrene V C None 2000C 7000 None
Tetrachioroethylene (PCE) V 82/C None 2000 500 66 66
Toulene Y 0 None 3460 C 12100 NA
Toxaphene N 82 5 40 None 3.1 409
1 ,1 ,1-Trichioroethane V I) 200 3 5 000 C 1000 NA 500
Trichioroethylene V 82 5 None 257 280 128
Vinyl chloride Y A 2 2600 None 1.5 1300 h
Xylenes (total) V D I None 7800c 2157 NA 1078
-------
ExhIbit 2 REMOVAL NUMERIC ALl (ON LEVELS 9/B!
FOR CONTAMINATED DRINKING WATER SITES
(ugh)
Volatile
Chemical (Y/N)
EPA 10-Day
Carcinogen MCI HA DWELb Cancer Risk
Groupa Level
R oval
Action
a Carcinogen group designation Is fr ii EPA carcinogen classification guidelines for effects fran Ingestion.
b DWEL RfD x 70 kg . (Note that the OWEL in health advisory documents produced by EPA’s Office of Drinking Water
2 1/day may be slightly different due to rounding.)
C Because no suitable studies of appropriate duration were available, these 10—Day Health Advisories were based on
Health Advisories of greater or lesser duration, e.g., 1—Day, Longer—term, and Lifetime Health Advisories.
d Removal action level is an Interim value. OERR is examining whether it would be appropriate to use the lower 10-Day
Health Advisory (50% for volatiles) a the action level. Until that tune, if contaminant levels levels exceed the
action level shown in the table, removal action may be taken. If contaminant levels exceed the 10-day advisory
(50% for volatiles), but not the OWEL (50% for volatiles), consult OERRS
e Not soluble in water.
Removal action may be initiated if mercury lev ls exceed the DWEL of 5.5 ugh. If mercury levels exceed the 10-day
advisory of 1.6 ugh, but not 5.5 ugh, consult OERR.
9 Removal action may be initiated Immediately If toxaphene levels exceed the 10-Day Health Advisory of 40 ug/L.
If toxaphene levels exceed the iO 4 Cancer Risk Level of 3.1 ugh, but not 40 ugh, consult OERR.
Removal action may be Initiated immediately if vinyl chloride levels exceed 1300 ugh, which Is 50% of the 10-Day
Health Advisory. If vinyl chloride levels exceed the Cancer Risk Level of 1.5 ugh, but nut 1300 ugh,
consult OERR.
• Not appropriate.
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Information on Drinking
Water Action Levels
-------
t uc€
, to S l%
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
ZJ WA5HINGTON D.c. 20460
PRO
APR I 9 :cp
OFF ICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Information on Drinking Water
FROM: Timothy Fields, Jr., Director
Emergency Response Division
TO: Superfund Branch Chiefs, Regions I-X
OHM Coordinators, Regions I—X
The purpose of this memorandum is to to provide you with updated
I nfonnati on on removal program drinking water action level s, as described
in OSWER Directive 9360.1-10. The OSWER Directive will eventually be amended
to Include this information, but it is being sent to you now to ensure that
you receive the data as soon as possible. It is important to note that the
drinking water action level is only one of several factors to consider in
deciding whether a removal action is appropriate.
o Dichloroniethane — Change the i0 4 Cancer Risk Level to 480 ppb (not 48),
and the removaT action level to 480 ppb.
• Alachior — Change the i 4 Cancer Risk Level to 44 ppb (not 15), and the
removal action level to 44 ppb.
o Arsenic - ERD has had several requests about arsenic action levels. At
the moment, there is considerable controversy within EPA and the scientific
comunity about the carcinogenicity of arsenic. For now, rather than
establishing an official action level, the removal program may consider
taking action when arsenic levels exceed 50 ppb (the current MCL), but the
Regions should always consult Headquarters for arsenic sites. (You must
also consider whether the arsenic is naturally occurring, since SARA
prohibita Superfund response to such releases unless it is an emergency
and no one....e ge.. can respond.)
• DBCP — The i — Cancer Risk Level for DBCP is 2.5 ppb and the 10—Day Health
AdvTsory is 50 ppb. The Agency is currently working on a proposed MCI for
DBCP. The removal action level at this time will be 2.5 ppb, based on the
cancer risk value, but it is important to keep in mind that Superfund should
not be used to respond to releases that result from the lawful application
of pesticides (unless an emergency exists). Many farming areas may show
elevated levels of DBCP, but this may have been caused by normal use of the
pesticide. Two iteuts related to this are attached: 1) a July 1985 memo
that addresses releases from lawfully applied pesticides and 2) a recent
mei o written by an OSC in egion 9, after consultation with Headquarters,
regarding DBCP contamination.
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—2-
0 Vinyl chloride — Many OSCs have been concerned because the action level
guidance provides that the Regions should not Implement action for vinyl
chloride unless concentrations exceed 1300 ppb t50% of the 10-Day Health
Advisory). This does not mean, however, that alternate water supplies
cannot be provided at lower levels for vinyl chloride. To clarify the
current policy for vinyl chloride, the action level for imeedlate Regional
response is 1300 ppb, but Headquarters may authorize action at lower levels.
Specifically, Headquarters will consider response If levels exceed 2 ppb,
the MCL. In determining whether action is appropriate, Headquarters will
consider factors such as the source of the contamination, the scope of the
response needed, and the availability of other response mechanisms.
Headquarters consultation is required for these actions because the action
level calculated under the general model (which would equal 1.5 ppb, the
Cancer Risk Level) is lower than the MCL of 2 ppb. The removal
program needs to be careful about setting precedents for taking actions at
or below the MCL, because any public water supply system in the country
could then potentially qualify for removal response If contaminant
concentrations exceeded the I4CL. In general, public water supply systems
are responsible for ensuring that their systems comply with MCLs.
0 Chloroform — The OWEL is 350 ppb, the 10 Cancer Risk Level is 600 ppb,
and the removal action level Is 175 ppb (50% of the OWEL).
o List of removal alternate water supply sites - ERD recently sent the Regions
a table prepared by TAT it sting sites where the removal program has provided
alternate water supplies in the past. Please change the following Informa-
tion on the Region 5 Main Street Weilfield site: the number of residences
affected Is 301. not 43,000, and the methods used include bottled water,
carbon filtration, and water main connection iii addition to air stripping.
0 RIsk addltivit.y — At the recent Removal Program ?lanagers° meeting in
Washington, D.C., ERD was requested to send the Regions information about
adding risks from multiple chemicals In drinking water. In trying to
collect this Information from EPA sources, we found that there was some
Inconsistency in risk additivity policy within the Agency. The Superfund
Toxics Integration Branch (118) will address this issue when they revise
the Superfund Public Health Evaluation Manual this year. In the interim,
risks from multiple contaminants In the drinking water should not be
routinely sued in establishing action levels. However, If the Region Is
particular1 .concerned about possible synergistic effects or effects on the
same target organ- from the contam1nan present, the Regions may contact
the Superfund 118 for further assistance (FTS 475-9486). InformatIon on
health effects from various chemicals is available from the Integrated Risk
Informatf on System (IRIS).
If you have any questions regarding this information, you may contact
Jean Schumann of my staff at FTS 382-4671.
Attachments
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cc: Mark McClannahan, ATSDR
Hans Crump
Paul Pladeau
Dave Bennett
John-R$ley
jruce. Engelbert..
Joe LaFornara
—3-
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PoH y on Flood Plains and
Wetlands Assessment
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03/19/87 UnItd SLs1I
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EPA OSWER Di
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POLICY ON FLOOD
PLAINS AND WETLANDS ASSESSMENTS
4 Sun t7 of D rsdIV, (kicOids br f
Discusses situations
flood plains or weti
factors which should
assessment for respo
pursuant to section
(8/85, 12 pp)
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that require preperatien of a
ends assessment, and the
be considered in preparing an
n .e actions undertaken
104 or 106 of CERCLA.
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9280. 0—1.
Supplements
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SUPERFUND, CZRCLA,
REMEDIAL PROGRAM, FLOOD PLAINS MANAGEMENT
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MEDEMAN/WCERO
OSWER OSWER - OSWER
- DIRECTIVE DIRECTIVE
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,o,Ta.p,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. . 20460
11 .S
oPPICI 0.
3OUO WAZT* AND (MS DINCV UP0NSS
MEMORANDUM OSWER Directive 9280.0—02
SUBJECT: Policy Ofl FloodplainS and Wetland Assessments
for CERCLA Actions
FROM: William N. Hedeman. Jr.,
and Remedial R, ?I36rIs
G ne Lucero, Dij Or
Office of Waste Programs Enforcement
TO: Toxic and Waste Management Division Directors
Regions I—X
Response tO releases of hazardous substances is often
affected by floodplain and wetland issues. Under this policy
superfund actions must meat the substantive requirements of
the Floodplain Management Executive Order (E.O. 11988), and
the Protection of Wetlands Executive Order (E.0. 11990) (see
attached),. and Appendix A of 40 CFR Part 6, entitled Statement
of Procedures Ofl Floodplain Management and Wetland Protection.
The purpose of Appendix A of 40 CFR Part 6 is to set forth EPA’s
policy and guidance for carrying out the provisions of Executive
Orders 11988 and 11990. This memo discusses situations that
require preparation of a floodplaiflS or wetlands assessment,
and the factors which should be considered in preparing an
assessment, for response actions undertaken pursuant to section
104 or 106 of CERCLA.
For removal actions, the on—scene coordinator (OSC) must
consider, to the extent practicable taking into account the
exigencies of the situation, the effect the response action
will have on floodplains and wetlands. For remedial actions, a
floodPlaifl/Vetlands assessment must be incorporated into the
analysis conducted during lhe planning of the remedial action.
I. BACXGROUND
A. F1oodp1 irts
FloodplaiflS are relatively flat areas or lowlands adjoining
the channel of a river, stream or water course which have been or
may be covered by floodwater. A flood is a general and temporary
condition of partial or complete inundation of normally dry land
areas from the overflow of inland and/or tidal waters and/or
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OSWER DirecLve 928C.G-02
—2—
the U$U 1 and rapid accumulation or runoff of surface waters
from any source. A reference to a floodplain should be
c mpanied by a modifier indicating the level of flooding,
e.q. 100 -year floodplain (one percent chance of flooding in
any year).
Executive Order 11988 — Floodplain Management
Executive Order 11988 reqUires Federal agencies carrying
out their responsibilities to take action to reduce the risk
of flood loss, to minimize the impact of floods on h m an safety,
health and welfare, and to restore and preserve the natural
and beneficial values served by floodplain s. To do this,
Federal agencies must evaluate the potential effects of any
actions they may take in a floodplain tO ensure that their
planning programs and budget requests reflect consideration
of flood hazards and floodplain management, including the
restoration and preservation of such land areas as natural
undeveloped floodplaifls. This order emphasizes the importance
of evaluating alternatives to avoid effects arid incompatible
development in the floodplaiflS. of minimizing the potential
harm to floodplaiflS if the only practicable alternative
requires siting an action in a floodplain and providing early
and adequate opportunities for public review of plans and
proposals involving actions in floodplain s.
B. Wetlands
Wetlands are land areas which, because of their frequent
inundation by surface or ground water, can support vegetative
or aquatic life that requires saturated soil conditions.
Wetlands generally include but are not limited tO swamps,
marshes, bogs and similar areas such as sloughs, pot holes, -
wet meadows, river overflows, mud flats and natural ponds.
Executive Order 11990 — Protection of Wetlands
Executive Order 11990 requires Federal agencies in
carrying out their responsibilities tO take action to minimize
the destruction, loss or degradation of wetlands, and to
preserve and enhance the natural and beneficial values of
wetlands. The order emphasizes the importance of avoiding
undertaking new construction located in wetlands unless there
is no practicable alternative tO that congtruction, minimizing
the harm tO wetlands if the only practicable alternative
requires construction in the wetland, and providing early and
adequate opportunities for public review of plans and proposals
involving new construction in wetlands.
C. Statement of Procedures on Floodplain Management and
Wetlands Protection — Appendix A to 40 CFR Part 6
EPA has promulcated regulations implementing procedures
on the National Environmental Policy Act (NEPA) at 40 CFR
Part 6. Appendix A of Part 6 (Appendix A) deals with procedures
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CSW!R Directive 9280.0-02
—3—
on Floodplain Management and Wetland Protection. The purpose
of Appendix is to set forth Agency policy and guidance for
carrying out th. provisions of Executive Orders 11988 and
11990.
Appendix A provides that it is the intent of these
Executive orders that, wherever possible, Fed.ral agencies
implement the floodplains/wet landS requirements through
existing procedureS such as those internal procedures
established tO implement NEPA. In those instances where the
.rwiror%lflental impacts of a proposed action are not significant
enough to require an environmental impact statement (EIS)
pursuant to section 102(2)(C) of NEPA, or wher• programs are
not subject to the requirements of NEPA,. alternative but
equivalent floodplain/wetlands evaluation and public c mm.nt
and notice procedures must be established. Furthermore,
Appendix A prescribes the requirements for floodplain/wetlands
review of proposed EPA actions.
II. pOt.ICY
A. Removal Actions
Removal actions are exempt from compliance with section
102(2)(C) of NEPA because there is a fundamental conflict in
statutory purpose between EIS requirements and EPA’S removal
authority. This conflict arises from the fact that it would
be virtually impossible for EPA to follow the lengthy £15
process and at the sante time expeditiously undertake removal
actions.
1. Floodplain/Wetland Assessment
However, a floodplain s/wetlaflds evaluation required by
Appendix A would not be as lengthy as the LIS process. There-
fore, the OSC or lead Agency should attempt to incorporate a
floedplains/w.tland s assessment into the preliminary assess-
ment for the removal action. The floodplain s/Wetlaflds assess-
ment must consider the following: whether or not the action
will be located in or affect a floodplain or wetland; the
impact of the action an the floodplain or wetland; the altern-
atives available: and measures to minimize potential harm tO
the floodplain or wetland if there is nopracticable alternative
to locating in or affecting the floodplain or wetland (for a more
detailed explanation of these factors see Section x x x, Remedial
Actions, of this policy). 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 perform a floodplaifls/Wetlafld s
assessment. In those circumstances where a floodplain/wetland
assessment cannot be performed the OSC report or other
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OSWER DireCtiVe 9280.0—02
—4—
doc u m ent* should specify the reasons. At the OSC’s discretion,
00 .id.rthtc the exigencies of the situation, the OSC should
0 onsult with the Regional 404 Staff where wetlands/floodplains
, involved or suspected to be involved.
For all lead agency removal actions where a floodplain/wetland
assessment is performed and is proposed to be in or affecting a
floodplain/wetland the OSC shall document the decision in the
osc report. The decision shall be accompanied by a Statement
of Findings, not to exceed three pages that includes Ci) the
reasons why the proposed action must be located in or affects
the floodplain/wetlands; (ii) a description of significant
facts considered in making the decision tO locate in or to
affect the floodplain or wetland including alternative sites
and actions; (iii) a statement indic.ting whether the proposed
action conforms to applicable State or local floodplain/wetland
protection standards: (iv) a description of the steps taken
to design or modify the proposed action to minimize potential
harm to or within the floodplain or wetland; and (v) a statement
indicating how the proposed action affects the natural or
beneficial values of the floodplain or wetland.
2. Opportunity for Citizen Coertt
Appendix A has two public notice requirements. One is
public notice when it is apparent that a proposed or potential
agency action is likely to impact a floodplain or wetland and
the other i,s public notice of the selected decision.
Because of the expeditious nature of removal actions extend-
ing 45 days or less, no formal community relations plan must be
developed. Instead, a spokesperson will be designated by the
lead agency to inform the community of actions being taken.
to respond to inquiries and to provide information concerning
the release. If the exigencies of the situation permit the
performance of a floodplain/wetland assessment, the assessment
must be included in the spokesperson’s presentation. This
will provide early public notice as required by Appendix A.
The OSC report, which contains the selected decision or the
reasons why a floodplain/wetland assessment cannot be performed
must also be made available to the public. The OSC report will
provide public notice of the selected decision as required by
Appendix A.
If the recuired removal action extends over 45 days, a formal
community relations plan must be developed. If the exigencies
of the situation allow for a floodplain/wetland assessment,
this assessment must be made available for a three week public
comment period. This will provide early public notice and an
opportunity for participation in the decisioninaking process
as required by Appendix A.
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0SWEP . D .:e tLve 9280.0-02
-.5—
If it is known that a floodPlain/Wetland assessment will be
conducted at the time of the preparation of the Community Relations
Plan thal% the public comment period muse be noted in the plan.
The OSC report. which contains the selected decision or the
reasons why a floodplain/wetland assessment cannot be done, Is
also required for the longer removals and must be made available
o the public. This will provide public notice of the selected
decision as reauired by Appendix A.
B. Remedial Actions
An EIS is unnecessary for remedial actions provided in that
EPA meets the standards for a functional equivalent exception to
the LIS reauiremeflts of section 102(2)(C) of NEPA. To comply
with the functional ecuivalent exception, the agency must have
- expertise in environmental matters and meet the following criteria.
First, the agency’s authorizing statute must provide substantive
and procedural standards that ensure full and adequate consideration
of envirorUflental issues. Second. the agency must afford an
opportunity for public participation in the evaluation of environ-
mental factors prior to arriving at a final decision. -
1. Consideration of Environmental Issues
Remedial actions 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.
The language in section 104, that directs that remedial actions
be necessary to protect public health, welfare, and the environment,
establishes a standard mandating consideration of environmental
effects. Moreover, the procedures set forth In the National
Contingency Plan (NCP) establish a process for conducting an
analysis during the planning of remedial actions that is similar
• in content to the evaluation underlying an LIS. This analysis
is contained in the remedial investigation/feasibility study
(RI/FS). Therefore, for a remedial action to comply with the
alternative but equivalent floodplain/wetland evaluation
contained in Appendix A of 40 CFR Part 6, a floodplain/wetlands
assessment must be incorporated into the analysis conducted
during the planning of rem.dial actions which is established
by the NCP.
During the scoping of remedial response actions, the Remedial
Project Manager (RPM) or the lead Agency in conjunction with
Regional 404 staff, should identify any floodplain or wetlands
located within the site area or that could be affected b the
response action. If the area is predominantly privately owned,
the RPM or the lead agency shall consult with the Federal Insurance
Administration of the Federal ergency Management Agency which
has two maps that will be useful in identifying floodplair%S.
The Flood Insurance Rate Map shows the boundaries and elevations
of the 100 and SOC years floodplair%S. The other map, Flood
Hazard Boundary Map, shows the appropriate area of the ioo years
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OSWER Directive 928G.G C2
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zen.. A copy.of these maps can be obtained by calling
1—800—638 —6620. Far areas predominately State or Federally
owned, consult with the controlling Federal or State agency.
Nape are available for some wetland areas from the Fish and
wildlife Service (National Wetlands Inventory Maps) or from
local and State planning agencies. Also, the Regional 404
staff has access to the most up to date wetlands area
information.
If there are no floedplains/wetlands located within the
site area or that could be affected by a response action, the
feasibility study should so state, and the response action may
proceed without further consideration of th. procedures set
forth below. However, if the site is located within a flood-
plain/wetland or if the proposed remedial action would affect
a floodplain/wetland, the RPM or the lead aqency must conduct
a floodplain/wetland assessment which will be integrated into
the feasibility study. In the RPM ’s discretion, the RPM should
consult with the Regional 404 staff in cases that require a
floodplains/wetlands assessment. Floodplain/Wetland assessments
shall consist of a description of the proposed action, a discuásjon
of its effect on the floodplain/wetlands, a description of
tiT. alternatives considered and their effects on the floodplain.
and wetlands, and measures to minimize potential harm to the
f3oodplain/ wetland if there is no practicable alternative
to locating in or affecting floodplain/wetlands.
a. Floodplain Assessment Of Alternatives
In assessing the alternatives and their effects on the
floodplain and floodplain protection, the RPM or lead agency
should consider such factors as environmental effects, community
welfare, coat and technology. All possible alternatives must
be considered, including the no action alternative. If one
or more of the alternatives will be located in a floodplain,
those alternatives may not be selected unless a determination
is mad. that no practicable alternatives exists outside the
floodplain.
If no practicable alternatives exist outside the floodplain,
and the RPM or lead agency baa determined or proposes to allow a
remedial action to be located in a floodplain, then the RPM or
lead agency shall act to minimize potential harm or avoid adverse
effects to the floodplain. This includes acting to restore and
preserve the natural and beneficial values of floodplains. The
benefits of preserving floodplain in their natural or relatively
undisturbed state include not only reduction of flood hazards,
but maintenance of water ouslity standards, replenishment of
ground water, soil conservation, the fostering of fish, wildlife
and plant resources and the provision of recreational areas.
The followinç are possible methods for minimizing potenti
harm to floodplain.. This list, however, does not preclude th
RPM or lead agency from using other measures that minimize
potential harm or avoid adverse effects to floodplains.
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OSW R 9280.0—02
1. Us. minimum grading requirements.
2. Return the site to natural contours.
3. Maintain floodplain vegetation to reduce sedimentation.
4. Regulate methods used for grading. filling, soil removal
and replacement to reduce sedimentation.
5. ReQuire topsoil proteCtio1 program.
6. Raise the site above the floodplain.
7. Construct new structures or facilities in floodplains in
accordance with accepted floodoroofing and other flood
protection measures and elevate structures above the base
flood level rather than filling inland, wherever practicable.
b. Wetland Assessment Of Alternatives
In assessing the alternatives and their effects on wetlands.
the RPM or lead agency in conjunction with the Regional 404 staff.
should consider such factors as environmental effects, community
welfare, cost and technology. All possible alternatives must be
considered, including the no action alternative If one or more of
the alternatives will be located in a wetland, those alternatives
may not be selected unless a determination is made that no
practicable alternative exists outside the wetlands.
If no practicable alternative exists outside the wetlands.
and the RPM or lead agency has determined or proposes to aLlow a
remedial action to be located in a wetlands, then the RPM or
lead agency shall act to minimize potential harm or to avoid
adverse effects to the wetlands. This includes action to allow
restoration and preservation of the natural and beneficial
values of the wetlands. The benefits of preserving wetlands
in their natural or relatively undisturbed state include the
control of flood and storm hazards, maintenance of water
quality standards and water supply, maintenance of natural
systems natural pollution abatement, conservation and long
term productivity of existing flora and fauna, species and
hab tat diversity and stability, hydrologic utility, fish,
wildlife, timber and food resources, and other uses of wetlands
in the public interest including recreational, scientific
and cultural uses. All impacts caused by an action occurring
in a wetland must be evaluated and mitigated according to the
EPA mitigation policy (under authority of the Clean Water Act
section 404) in effect at the time of the proposed action,
including the effects on the wetlands natural or beneficial
value.
c. Documentation of Decision
For all lead agency response actions proposed to be in or
affecting a floodplain/wetland the RPM or lead agency. shall
document their decision in the Record of Decision (ROD). The
decision shall be accompanied by a Statement of Findings which
may be included in the ROD support document or attached as a
separate appendix. This statement will not exceed three pages
and will include: (I) The reasons why the proposed action must be
located in or affect the floodplain or wetlands; (ii) a description
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OSWER Dire’ ’e 929C.C-C2
—8—
of 3 jgnificant facts considered in making the decision to
locate in or affect the floodplain or wetlands including
alternati sites and actions; (iii) a statement indicating
whether the proposed action conforms to applicable State or
local floodplain/wetland protection standards; (iv) a description
of the steps taken to design or modify the proposed act to
minimize potential harm to or within the floodplain or wetlands;
and Cv) a statement indicatina how the proposed action affects
the natural or beneficial values of the floodplain or wetlands.
2. Opportunity for Response to Citizen Concerns
Remedial actions satisfy the second criterion for a functional
equivalent exception because current Agency procedures for public
comment on remedial actions and the proposed amendments to the
NCP afford the public an ample opportunity for participation in
the evaluation of environmental factors prior to arriving at a
final decision. The proposed amendments to the NCP and the
current Superfund Community Relations Policy provide for a minimum
21—day comment period on the feasibility study which outlines
alternative remedial measures prior to selection of the final
remedial response. This public involvement in the remedial
planning process would enable remedial actions to meet the
public participation requirement for the functional equivalent
exception to NEPA.
Appendix A, however, appears to require two further public
notice requirements. One is any early public notice when it is
apparent that a proposed or potential agency action is likely to
impact a floodplain or wetlands and the other is public notice of
the selected decision.
Current Agency policy suggests that a fact sheet summarizing
the feasibility study response alternatives and other issues, be
provided to the public 2 weeks prior to the minimum 3 week public
comment period for the feasibility study. The fact sheet will
include a statement explaining whether a proposed or potential
remedial action is likely to impact a floodplain or wetlands.
This will provide early public notice as recuired by Appendix A.
Concerning the public-notice of a selected decision, the
Agency suggests that a public notice and updated fact sheet
summarizing the ROD be provided to the public. In addition, when
the ROD is signed, it becomes a public document. The public -
notice, fact sheet and the availability of the signed ROD
in the information repositories will provide public notice of
the selected decision as required by Appendix A. The updated
fact sheet will contain the alternative selected, any effects
the response will have on floodplain/wetlandS, and the state-
ment of Findings described in the Documentation of Decision -
Section above.
In addition, the Agency suggests that public meetings and
other community relations activities be held as specified in the
community relations plan.
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CSW!R : c:ive 9280.O—G2
—9—
D. Su ary
1. Removal Actions
For removal actions, EPA’S policy is to pursue actions
that will meet applicable or relevant standards, and criteria of
th. other Federal environmental laws that deal with floodplains/
w.tlands to the maximum extent practicable considering the
exigencies of the situation.
2. Remedial Actions
For remedial actions, EPA’S policy is to pursue remedies
that attain or exceed applicable and relevant standards of other
Federal environmental laws that deal with floodplain$/WStlSflds,
unless specific circumstances exist as referenced in section
300.68(i)(5) of the NC?. CERCLA procedural and administrative
requirements will be modified to provide safeguards similar
to those provided under other laws. Applications for and
receipt of permits is not recuired for on—site response
actions taken under the Fund—financed Ot enforcement authorities
of CERCLA (i.e., Clean Water Act 404 permits are not required):
III. COMPLIANCE WITH OTHER FLOODPLAIN/WETLAND LAWS
The Agency has concluded that cleanups pursuant to sections
104 and 106 of CERCL.A should comply with other Federal environ-
mental standards, as a matter of policy, but not as a matter of
law, except in a limited set of circumstances. For example,
Section 10 of the Rivers and Harbors Act of 1899 and section
404 of the Clean Water Act apply to dredge and fill activities
and must be complied with except in very limit ed circumstances
such as fund balancing. (See CERCLA Compliance with other
Environmental Statute s 50 FR 5928). However, permits are
net required for these actions. This policy has also been
proposed in amendments to the NC? (50 FR 5862). In addition,
Federal public health and environmental criteria and advisories
and State standards shall be considered, with appropriate
adjustment. in determining the appropriate response action.
Therefore, the Agency should also consider State and local
floodplain/wetland protection standards and other Federal
guidance. If the Agency does not use applicable State and
local standards, the reason why should be documented in the
Record of Decision or the Statement of Fthdings prepared by
the OSC.
IV. IMPLEMENTATION
This policy will apply to all removals and remedial
investigations and feasibility studies that are initiated
after August 1, 1985.
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CERCLA Compliance with Other
Environmental Statutes
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Ur iied States Office of
Environmental Protection Solid Waste and
Agency Emergency Response
&EPA DIRECTIVENUMBER 9234.0-02
TITLE: Ra.A Cbnpliance with Other
Environmental Statutes
APPROVAL DATE: October 2, 1985
EFFECTIVE DATE: October 2, 1985
ORIGINATING OFFICE: o /PAs
x2J FINAL
O DRAFT
STATUS:
REFERENCE (other documents):
OSWER OSWER •OSWER
IE DIRECTIVE DIRECTIVE P
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,. ‘Q
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
/
4 P 4
OCT -2 1985
OF ’CE OF
SOLUO WASTE AP4O .IE GEP4CV a.ESPONSE
OSWER DIRECTIVE 9234.0-2
MEMORAN DUM
SUBJECT: CERCL.A Comp1i flCe With Other Environmental Statutes
2 -‘ - ,f
FROM: 7dWinStOfl Porter
X ssistant 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 Envi:on—
mental 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 the 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 1 minimizing the release of hazardous substances
so that they do not migrate to cause substantial danger t
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 app1i .ca ie
or relevant and appropriate Federal public health or envt: fl
mental laws. However, because of unique circumstances at
particular sites, there may be alternatives that do not neet
the standards of other laws, but that still provide protect fl
of public health, welfare, and the environment.
Although response actions that prevent hazardous sub-
stances 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 past disposal practices and resulting unique site
conditions. At certain sites, it may be technically impracti.r
environmentally unacceptable, or excessively costly to impleir
a response action that prevents migration or restores the
site to its original 1 uncontaminated condition.
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ii. Policy
section 104 of CERCLA requires that for 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 environ-
mental 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,
guidances, 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 practicab1e 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 identi-
fied 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 CERCL.A.
B. Off—Site Response ActiOn
CERCLA removal and remedial activities that involve the
removal of hazardous substances from a CERCLA site to of f-
site facilities for proper storage, treatment or disposal must
be in compliance with all applicable or relevant standards
of Federal environmental and public health statutes.
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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 several exceptions enumerated in that memorandum,
no CERCLA hazardous substances shall be taken off-site to a
unit in a RCRA facility if the receiving Region’s Administrator
determines that the unit 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, UIC, Clean Air, etc.) will be specified
in a contract or cooperative agreement with the State as
part of its assurances required under section 104(c) of CERCLA.
II !. Other Laws or Guidances 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 applicable or relevant
and appropriate,
• Other Federal criteria, advisories, guidances, and
State standards to be considered.
An initial list of both categories is attached.
A. Applicable or Relevant 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.
RRelevant 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 applicable” but for jurisdictional restrictions
associated with the requirement.
For example, the RCRA 40 CFR Part 264 Subpart P Ground-
Water Protection Standards would be applicable to the
management or cleanup of hazardous wastes in ground water
from hazardous waste management facilities if such actions
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were not taken pursuant to CERCLA sections 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 to
CERCLA response actions regardless of when the wastes were
disposed of or managed.
B. Other Federal Criteria, Advisories, Guidances 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 and guidances 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 deter-
mine the most effective action.
(1) 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 or environmental
requirements. The lead agency also shall, as appropriate,
consider other Federal criteria, guidances, 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 documents, OSC reports, or other docwnents
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 certain exceptions,
enumerated in the off—site policy, no hazardous substance
shall be taken off—site to a unit in a RCRA facility if the
Region determines that the unit has significant RCR.A violations
or other environmental conditions that affect the satisfactory
operation of the facility.
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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; 1
(b) Alternatives that attain applicable and relevant and
appropriate Federal public health or environmental requirements;
(c) As appropriate, alternatives that exceed applicable
and relevant and appropriate public health or environmental
requirements 2 ;
Cd) As appropriate, alternatives that do not attain
applicable or relevant and appropriate public health or
environmental requirements but will reduce- the likelihood of
present or future threat from the hazardous substances and
that provide significant protection to public health, welfare
and environment. This must include an alternative that closely
approaches the level of protection provided by the applicable
or relevant and appropriate requirements;
Ce) 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 considera-
tion 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.
1 These alternatives must be consistent with EPA’S May 6, 1985
off—site policy, “Procedures for 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.
2 For instance, the Agency might choose incineration as an
alternative that exceeds what would be required by applicable
standards because it is a more permanent and reliable solution
than RCRA closure standards for land disposal facilities.
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The decisionmaker may select an alternative that does
not attain applicable or relevant standards in one of the five
following circumstaflCeS
(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 envi-
ronment. 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;
Cc) Technical Impracticality — Where no alternative that
attains or exceeds applicable or relevant and appropriate Federal
public health or environmental requirements is technically prac-
tical 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 or
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 environ-
mental impacts; or
Ce) 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.
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Where one of these situations is present, the decision—
maker 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, guidances, 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 re-
quirements. 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 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.
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If a remedy is identified that is materially
different from those proposed during the feasibility study
public coeflt periods a new 3 week public comment period may
be required prior to amending the Record of Decision, taking
into considerati0 the features of the alternatives addressed
in the publiC comment period.
The CERCLA enforcement community relations program will
also be modified to provide for an enhanced public partici-
pation 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. recordkeePiflg, monitoring)
similar to those mandated by other environmental programs.
V. p1icabilitY of Polici
This policy applies to two situations:
0 a site—specific FS has not yet been initiated;
the FS must fully comply with this policy.
o 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 before 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 (202 382—2182)
or Stephen M. Smith of his staff (202 382—2200).
Attachment
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POTENTIALLY APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENT
1. EPA’S Office of Solid Waste administers, inter alia, the
Resource Conservation and Recovery Act of 1976, as amended
(Pub. L. 94—580, 90 Stat 95, 42 U.S.C. 6901 et seq.).
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 257).
Note: Only relevant to nonhazardouS wastes.
b. In most situations Superfund wastes will be handled
in accordance with RCR.A Subtitle C requirements
governing standards for owners and operators of
hazardous waste treatment, 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).
o Ground—Water Monitoring (40 CFR 265.90—265.94).
o Closure and Post Closure (40 CFR 264.110—264.120,
265.110—265.112).
o 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)
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• Land Treatment (40 CFR 264.270—264.299, 265.270 - .
265.282).
• Landfills (40 CFR 264.300—264,339, 265.3 00...265 316)
Incinerators (40 CFR 264.340—264.999, 265.340—
265.369).
• Dioxin-containing Wastes, (50 FR 1978). Includes
the the final rule for the listing of djo j
containing waste.
2. EPA ’s Office of Water administers several Potentially
applicable or relevant and appropriate statutes and
regulations issued thereunder:
a. 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)
0 Underground InjectionContro l Regulations. (40
CFR Parts 144, 145, 146, and 147)
b. Clean Water Act as amended (Pub. L. 92—500, 86 Stat
816, 33 U.S.C. 1251 et.
o Requirements established pursuant to sections
301, 302, 303 (including State water quality
standards), 306, 307, (including Federal pretreat-
ment requirements for discharge into a publicly
owned treatment works), and 403 of the Clean
Water Act. (40 CFR Parts 131, 400—469)
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c. Marine protection, Research, and Sanctuaries Act (33
U.s.c. 1401).
o Incineration at sea requirements. (40 CFR Part
220—225, 227, 228. See also 40 CFR 125.120—125.124)
3. EPA’s Office of pesticides and Toxic Substances
Toxic Substances Control Act (15 U.S.C. 2601).
• PCB Requirements Generally: 40 CFR Part 761;
Manufacturing Processing, Distribution fl Commerce,,
and Use of PCBs and PCB Items (40 CFR 761.20—761.30);
Markings of PCBs and PCB Items (40 CFR 761.40—761.45);
Storage and Disposal (40 CFR 761.60—761.79). Records
and Reports (40 CFR 761.180—761.185). See also 40 CFR
129.105, 750.
o Disposal of Waste Material Containing TCDD. (40
CFR Part 775.180—775.197).
4. EPA’s Office of External Affairs
o Section 404(b)(1) Guidelines for Specification of
Disposal Sites for Dredged or Fill Material
(40 CFR Part 230).
o Procedures for denial or Restriction of Disposal
Sites for Dredged Material (S4.04(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).
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o 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).
o National Ambient Air Quality Standards for
total suspended particulates (40 CFR Part 50.6—
50.7)
• National Ambient Air Quality Standards for ozone
(40 CFR 50.9).
• Standards for Protection Against Radiation — high
and low level radioative waste rule, (10 CFR Part
20). See also 10 CFR Parts 10, 40, 60, 61, 72,
960, 961.
o National Emission Standard for Hazardous Air
Pollutants for Asbestos, (40 CFR 61.140—61.156).
See also 40 CFR 427.110—427.116, 763.
o National Emission Standard for Hazardous Air
Pollutants for RadionuclideS (40 CFR Part 61, IC
CFR 20.101—20.108).
6. Other Federal Requirements
a. OSHA requirements for workers engaged in response
activities are codified under the Occupational
Safety and Health Act of 1970 (29 U.S.C. 651). The
relevant regulatory requirements are included under:
o occupational Safety and Health Standards (General
Industry Standards) (29 CFR PArt 1910).
• The Safety and Health Standards for Federal
Service Contracts (29 CFR Part 1926).
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o The Shipyard and LongshOre Standards (29 CFR
Parts 1915, 1918).
• Recordkeepiflg, 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 Archaelogical Resources: Uniform
Regulations -— Department of Defense (32 CFR Part
229, 229.4), Department of the Interior (43 CFR Part
7, 7.4).
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, 50 CFR Parts 81, 225, 402).
Wild and Scenic Rivers Act, 16 U.S.C. 1271.
compliance with NEPA required pursuant to 36 CFR
Part 297.
• Fish and wildlife coordination Act, 16 U.S.C. 661
note.
° Fish and Wildlife Improvement Act of 1978, and
Fish and Wildlife Act of 1956, 16 U.S.C. 742a not
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° 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, GUIDANCES,
AND STATE STANDARDS TO BE CONSIDERED
1. Federal Criteria, Advisories and Procedures
• Health Effects Assessments (HEAs)
o 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, developed using appropriate aspects of
Federal Water Quality Criteria. In many cases, State
water quality standards do not include specific numerical
limitations on a large number of priority pollutants.
When neither State standards nor MCLS exist for a
given pollutant, Federal Water Quality Criteria are
pertinent and therefore are to be considered.
• pesticide registrations.
o 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.
o Waste load allocation procedures, EPA Office of Water.
• Federal sole source aquifer requirements.
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0 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.
o New Source Performance Standards for Storage Vessels
for Petroleum Liquids.
0 TSCA health data.
o Pesticide registration data.
o TSCA chemical advisories (2 or 3 issued to date).
0 Advisories issued by FWS and NWFS under the Fish and
Wildlife Coordination Act.
0 Executive Orders related to Floodplains (11988) and
Wetlands (11990) as implemented by EPA’s August 6, 1985,
Policy on Floodplains and Wetlands Assessments for
CERCLA Actions.
0 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
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hazardous waste programs.
0 State Implementation Plans and Delegated Programs
Under Clean Air Act.
0 All other State requirements, not delegated through
EPA authority.
0 Approved State NPDES programs under the Clean Water Act.
o 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 RCR.A 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, 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 Applicants Guidance Manual for the General
Facility Standards.
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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.
io. Guidance Manual Ofl closure and post—closure Interim
Status Standards.
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 Leachate.
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.
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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.
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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 S146.104(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
S304(h).
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Discharge of Wastewater from CERCLA
Sites into POTWs
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHENGTON. D.C. 20460
N l5
MEMORANDUM
SUBJECT: Discharge of Wastewater from CERC es into POTWS
FROM: Henry I .. Longest II, Director J /J•
Office of Emergency and Remedi * 4,&ise
Rebecca Hanmer, Director
Off ice of Water Enforcemept and Permits
Gene A. Lucero, Director Li
Off ice of Waste Programs Enforcement
TO: Waste Management Division Directors
Regions I — X
Water Management Division Directors
Regions I — X
A nLunber of emergency removals and remedial cleanup actions
under CERCLA will involve consideration of publicly owned treat-
ment works (POTWs) for discharge of wastewater. The current
off—site policy (issued on May 6, 1985) does not address the set
of concerns and issues unique to POTWs that must be evaluated
during the Remedial Investigation and Feasibility Study (RI/FS)
for discharge of CERCLA wastewater to POTW5.
Recently, we have had meetings with representatives of the
Association of Metropolitan Sewerage Authorities (AMSA) to discuss
technical and policy concerns related to the POTW/CERCLA issue.
This memorandum is to highlight some of the major points under
consideration which were shared with AZ4SA at their recent Winter
Technical Conference. The Agency intends to develop policy on
the use and selection of POTWs for CERCLA wastewater. Your
coi ents are sought on the proposed criteria set forth herein.
These criteria may be useful in evaluation of POTWs for response
actions (fund financed or responsible party financed) to be taken
in the interim.
Our position is that no CERCLA discharges to a POTW should
occur unless handled in a manner demonstrated to be protective
of human health and the environment. Full compliance with all
applicable requirements of the Clean Water Act (CWA), the
Resource Conservation and Recovery Act (RCRA), and any other
relevant or appropriate environmental statutes will be necessary ..
-------
The national pretreatment program, under the Clean Water Act,
requires an analysis to determine whether the discharge of an
industrial user of a POTW may pass through the POTW to cause
receiving water quality problems or may interfere with POTW
operations (including sludge disposal). If the analysis suggests
that limits on the industrial user’s discharge are needed to pre-
vent pass through or interference, local limits or other safe-
guards, as necessary, must be established by the POTW and/or the
NPDES permitting authority. The national pretreatment program
requirements apply to the introduction of all non—domestic
wastewater into any POTW, and include, among other things, the
following elements:
o prohibited discharge standards — prohibit the intro-
duction of pollutants to the POTW which are ignitable,
corrosive, excessively high in temperature, or which
• may cause interference or pass through at the POTW.
o Categorical discharge standards — include specific pre-
treatment standards which are established by EPA for the
purpose of regulating industrial discharges in specific
industrial categories.
o Local limits — where no categorical standards have been
promulgated or where more stringent controls are necessary.
POTWs under consideration as potential receptors of CERCLA
wastewaters may include those POTWs either with or without an
approved pretreatment program. POTWs with an approved pretreat-
ment program are required to have the mechanisms necessary to
ensure compliance by industrial users with applicable pretreatment
standards and requirelnents.* POTWs without an approved pretreat-
ment program must be evaluated to determine whether sufficient
mechanisms exist to allow the POTW to meet the requirements of
the national pretreatment program in accepting CERCL& wastewaterS.
As noted above, pass through and interference are always prohibited,
regardless of whether a POTW has an approved pretreatment program.
POTWs without an approved pretreatment program must therefore
have mechanisms which are adequate to apply the requirements of
the national pretreatment program to specific situations.
*pO s with approved pretreatment programs must, among other
things, establish procedures to notify industrial users (lug) of
applicable pretreatment standards and requirements, receive and
analyze self—monitoring reports from tUs, sample and analyze
industrial effluents, investigate noncompliance, and comply with
public participation requirements.
-------
—3—
Determination of a POTW’S ability to accept CERCLA wastewater
as an_alternative to on—site treatment and direct discharge to
receiving waters must be made during the Remedial investigation/
Feasibility Study (RI/PS) process. During the remedial alternatives
analysis, the appropriateness of using a POTW must be carefully
evaluated. Water Division officials and their state counterparts
should participate in the evaluation of any remedial alternatives
recommending the use of a POTW, and should concur on the selection
of the POTW.
If an alternative considers the discharge of wastewater from
a CERCLA site into a POTW, the following points should be evaluated
in the RI/PS prior to the selection of the remedy for the site:
o The quantity and quality of the CERCLA wastewater and its
compatibility with the POTW (The constituents in the
CERCL.A wastewater must not cause pass through or inter-
ference, including unacceptable sludge contamination or
a hazard to employees at the POTW; in some cases, control
equipment at the CERCLA site may be appropriate in order
to pretreat the CERCLA discharge prior to introduction to
the POTW).
o The ability (i.e., legal authority, enforceable mechanisms,
etc.) of the POTW to ensure compliance with applicable
pretreatment standards and requirements, including monitor-
ing and reporting requirements.
o The POTW’s record of compliance with its NPDES permit
and pretreatment program requirements to determine if
the POTW is a suitable disposal site for the CERCLA waste—
water.
o The potential for volatilization of the wastewater at the
CERCLA site and POTW and its impact upon air quality.
o The potential for groundwater contamination from trans-
port of CERCTdA wastewater or impoundment at the POTW, and
the need for groundwater monitoring.
o The potential effect of the CERCLA wastewaters upon the
POTW’s discharge as evaluated by maintenance of water
quality standards in the POTW’s receiving waters,
including the narrative standard of no toxics in toxic
amount s.
-------
—4-
o The POTW’s knowledge of and compliance with any applicable
RCRA requirements or requirements of other environmental
statutes (RCRA permit—by—rule requirements may be trig-
gered if the POTW receives CERCL.A wastewaters that are
classified as hazardous wastes without prior mixing
with domestic sewage, i.e., direct delivery to the POTW
by truck, rail, or dedicated pipe; CERC A wastewaters are
not all necessarily considered hazardous wastes; case by
case determinations have to be made).
o The various costs of managing CERCLA wastewater, including
all risks, liabilities, permit fees, etc. (It may be
appropriate to reflect these costs in the POTW’s connection
fees and user charge system).
Based upon consideration of the above elements, the discharge
of CERCL.A wastewater to a POTW should be deemed inappropriate if
the evaluation indicates that:
o The constituents in the CERCLA discharge are not com-
patible with the POTW and will cause pass through, inter-
ference, toxic pollutants in toxic amounts in the POTW’s
receiving waters, unacceptable sludge contamination, or a
hazard to employees of the POTW.
o The impact of the transport mechanimu and/or discharging of
CERCLA wastewater into a POTW would result in unacceptable
impacts upon any environmental media.
o The POTW is determined to be an unacceptable receptor
of CERCLA wastewaters based upon a review of the POTW’s
compliance history.
o The use of the POTW is not cost—effective.
If consideration of the various elements indicates that the
discharge of CERCLA vastevater to a POTW is deemed appropriate:
o There should be early public involvement, including
contact with POTW officials and users, in accordance
with the CERCLA community relations plan and public
participation requirements.
o The NPDES permit and fact sheet may need to be modified
to reflect the conditions of acceptance of CERCLA waste—
waters; permit modification may’ be necessitated by the
need to incorporate specific pretreatment requirements,
local limits, monitoring requirements and/or limitations
on additional pollutants of concern in the POTW’s dis-
charge or other factors.
-------
—5—
Policy to be developed in the future will apply to all
removal, remedial, and enforcement actions taken pursuant to
CERCLA and Section 7003 of RCRA. We would appreciate your feed-
back on this memorandum and any experience in the use of POTWs
for CERCLA removal or remedial actions that you have to offer.
If you have any coiwnents or questions on this issue, please
submit written comments to the workgroup co—chairs: Shirley Ross
(FTS—382—5 7 5 5 ) from the Office of nergency and Remedial Response,
or Victoria Price (FTS—382-5 68 l) from the Office of Water.
cc: Ed Johnson
Russ Wyer
Tim Fields
Steve Lingle
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Occupational Safety and Health
Administration: Labor Federal Register
Volume 51, No. 244
-------
Friday
December 19, 1986
Part IV
Department of Labor
Occupational Safety and Health
AAr , .Iri&.4r thin
n .fl. . ..
29 CFR Part 1910
Hazardous Waits Operations and
Emergency R.spona. Interim Final Rule
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45654 Federal Register / Vol. 51. No. 244 / Friday. December 19. 1986 / Rule . and Regulations
OEPART7AEN1 OF USOR
Occupational Safety and Health
Administration
29CFR Pert 1910
(Docket No. 3—7501
Hazardous Wsst• Operations and
Esn.r’9ency Response
A01NC7 Occupational Safety end
Health Admuustretion: Labor.
acno Interim final rule.
3uu *av This interim final rule
amends the Occupational Safety and
Health Athninrstrstloe (OSHA)
standards for hazardous material. in
Subpart H of 29 CER Past 1910 by adding
a new 4 1910.128 contauung employee
protection requirements for worker.
engaged in hazardous waste operations
induding emergency response to
hazardous substance incidents.
Coverage includes employee.
involved in responses covered by the
Comprehensive Environmental
Response. Compensation and Liability
Act of 1980 as amended ( C.A or
•Supethmd” Act) (Pub. 1 95-510.42
U.SC. S OOt et seq. 94 Stat V57J suck a.
clean-up of hazardous waste sftes.
certain hazardous waste operations
conducted under the Resource
Conservation and Recovery Act of 1975
as amended (RCRAJ (Pub. L. 94-680.42
U.SC. 6901 ees.q. 9OStat V951, and
emergency response to incidanip
involving the handII’t processing and
transportation of hazardous substances.
The issuance of this interim finaL rule
is mandated by section 1.26(e) of the
‘luperfund Amendments and
Reauthorization Act of 1895” (SARA)
(Pub. L 99-499). The Interim final rule
will regulate employee safety and blaith
at hazardous waste operation, end
during emergency response to
hazardous substance incidents until a
final standard, also mandated by section
125 of SARA. is seized by OSHA and
becomes effective. The final OSHA
standard also nI .iiA.ted by section 128
of SARA is the subject of. Notice of
Proposed Rul ” ing which will be
published shortly.
0*T1 Interim ale efl ’eutv. December
19. I98 various stare-op dates have’
been established In paragraph (pJ of the
standard. The Incorporation by
reference of certain publication, listed
in the regulations is approved by the
Dtrector of the Federal Register u of
December 19. 1986.
P05 i5ThIR 5i *tiON N?ACT
Mr. James F. Foster. U.S. Department of
Labor. Occupational Safety and Health
Ab,iinisasuon. Division of Consumer
Allan . Room S—1Z20. ZOO Constitution
Avenue, NW.. Washiniton, DC 20210.
202—323-4151.
This interim final rule was prepared
by Michael B. Moore and Cheppell 0.
Pierce. Directorate of Safety Standards.
Oftice of Fire Protection Engineering and
Systems Safety Standards, (202)323—
7223.
SUP,tzMenTARv INFONMATIOSC
1. Background
On October 17. 1988. the President
signed into law the “Superfund
Amendnieets and Reauthorization Act
of 1985” (SARA I (Pub. L 99- 199). As
pare of SARA the Secretary of Labor
(“Secretary”) is directed to issue an
interim final rule within 60 days after
the date of enaconent. which Is to
provide no less protection for worker.
engaged in covered operations than the
protections contained in the
Environmental Protection Agency’s
(EPA). “Health and Safety Requirements
(or Employees Engaged in Field
Activities” manual (EPA Order 1440.2)
dated 1981 and die existing OSHA
standards under Subpart C of 29
Pert 1925. SARA also directs the
Secretary to issue, within one year. a
final standard under section 6(b) of the
Occupational Safety and Health Act of’
1970 for the health and safety of
employees engaged in hazardous waste
operations. SARA further indicates that
certain spedflc areas of employee
protection (La.. medical surveillance.
personal protective equipment. trainmt
and others) contained In section 125(bJ
are relevant to protect employee.
engaged in hazardous waste operations.
The Interim final rule Issued today
become, effective Immediately and will
remain in effect until one year after’
issuance of the final OSHA standard.
which will be proposed shortly.
Congress has clearly directed In section
126(e) that these interim final rules
become effective upon Issuance and the
st ndird provides this. Implementation
is to commence Immediately, however.
various start-up date, are set forth In
paragraph (p) of the st.”4 ’d which
recognize that full Implementation
nnot be completed immediately for
some provisions. In addition OSHA will.
of course. recognize greater’ feasibility
constraints in the first three months of
the st.n,4.rd and tika thos. constraints
into account In enforcement.
This interim final rule has been
adopted from the language of the EPA
manual entitled “Health and Safety
Requirements for Employees Engaged In
Field Acdvities’ (1981) and the language
of OSHA’s safety and health standards
In Subpart C of 29 CER Part 1925. The
i tenm final rule also contains language
taken from various documents
either oaniIy or solely by the EPA.
OSHA. the U.S. Coast Guard, and the
National Institute for Occupational
Safety and Health (NIOSH). OSHA has
specifically used the loint OSHA/EPA!
IJSCC/N 1OSH document entitled.
“Occupational Safety and Health
Guidance Manual for Hazardous Waste
Site 4cg,vgjes “(Preamble Referen . 6).
as an oudine in preparing this Interim
rule. This four agency manual ru been
developed as a result of be
collaborative efforts of professionals
represennnq the four agenties. These
professionals. who are knowledgeable
in hazardous waste operations, worked
with aver 100 experts and orgenindons
in the development of the criteria
contained in this manual The manual
was published in October 1955 and I.
public information. Th. manual is a
guidance document for managers
responsible for occupational safety and
health programs at inactive hazardous
waste sites. The manual is intended for
use by government offidals at ill levels
and connectors involved with
hazardous waste operations. The
manual provides general guidance and
is Intended to be used as a prelI .m.ry
basis for developing a spedific health
and safety program for hazardow
operations. Further the major sur
areas listed in SARA section 125
nearly Identical to these major
listed in the manual
Congress indicated that reasonably
comprehensiveprotection was intended
for employees at hazardous waste
operations, as discussed below, covering
more than the minimum requirements
specified in the EPA manual (EPA Order
1440.2) and Subpart C of 29 CER Past
1925. In light of the short period of time
Congress directed (or issuance of this
standard. OSHA’s utilization of
recognized sources of guidance which
have been created by experts in the area
and utilizing the resources of relevant
agencies Ia appropriate.
In view of the brief’period given for
the Issuance of this document. It may be
necessary to Issue minor corrections in
the near future.
IL S’””-’y and Explan.dsief th.
Pare greph (a)—Scope. Applicadon and
Oaf inaions
In paragraph (a)(1 ). Scope. OSHA has
defined the scope of the standard to
include:
(I) Hazardous substance response
operations under the Comprehensive
Environmental Response.
Compensation, and UabIllty Act c
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Federal Register / vol. 51. No 244 I Friday. December 19. 1986 / Rule, and Regulations
5655
dS amended (CERCLA) including initial
invesllqations at C CLA sites before
the presence or absence of hazardous
subsiiinces has been ascertained:
Iii Ma or corrective actions taken in
c!can ’up operations under the Resource
Conservation and Recovery Act of 1976
as amended (RCRA):
( Iii) Operations involving hazardous
waste storage, disposal and treatment
Idcilit les regulated under 40 CFR Parts
284 and 285 pursuant to RCR.A except
for small quantity generators and those
employers with less than gO days
accumulation of hazardou, wastes as
defined in 40 CFR 262.34:
(iv Hazardous waste operations sites
that have been designated for Clean-up
by state or local governmental
authorities: and
(v) Emergency response operation. for
releases of or substantial threats of
releases of hazardous substance. and
post-emergency response operations to
such releases.
Thus this standard will cover
hazardous waste dean-up operations at
CERCUi sites. RCRA sites, emergency
response sites and those sites
designated by Slate or local
governments. It will also cover other
hazardous waste operations. such as
storage, disposal or treatment of
hazardous waste at R A facilities.
OSHA believes that Congress
intended the interim rule to have a
broad scope and application. This ii
indicated by the legislative intent as
reflected in the tanguage of SARA. The
language of section 128(e) explIcitly
states that the Seceetary “shall issue
interim final regulations wider this
section. . . ‘ (emphasis supplied). ‘ Undar
itus section” refers to the entire section
128 uf SARA,. And, as previously noted.
section. 126(a) mandates safety and
health standards for the protection of
employee, engaged In hazardous waste
operations. Thus. OSHA believe.
Congress intended the interim final rids
to mirror section 126 and provide
protective provisions to employee.
engaged in hazardous waste operations.
The argument is buttressed further by
the fact that section 126(e) states that
the interim final rule shall provid, no
(ess (emphasis added) protection for
worker, employed by contractore and
emergency response workers than the
protection contained In the
Environmental Protection Agency
.1anual “Health and Safety
Requirements for Employee. Engaged In
Field Activities” and exiting standards
under Subpart C of 29 CTR Part 1926.
The two sources cited in section 126(e)
are not a limitation on the scop. of the
interim nil.. Rather, this language
establishes the minimum amount of
prolectiv i provisions, with the broad
parameter. ol employee protection
delineated by the remainder of section
128.
This interpretation is reinforced
because SARA is a freestandlni
statutory provision and not an
amendment to CERCLA. The clear
Congressional intent then is to provtde
protection to employees whenever they
deal with hazardous wastes.
The hazards an employee (aces at a
RCRA. CEECLA. or emergency response
site are the same hazards. The risk of
exposure is to the same type. of
hazardous substances. The scope of the
regulation fulfihla the Congressional
mandaim to effectively provide (or
employee health and safety at
hazardous waste operation. and
emergency response incidents.
A.s indicated in. the application
provisions. different provisions of the
standard apply to clean-up operations.
regular hazardous waste operations and
emergency response to take into account
relevant differences.
Further the term “hazardous waste
operation” is used in section 126(a) of
SARA. l’fazardous waste’s Is also a
term used in R A and there Is no
indication from SARA or its legislative
history that RCRA facllltk. were to be
excluded from coverage by this Interim
rule. This is a further reason why OSHA
has included RCRA hazardous waste
operations under the c.crage of this
interim final rule. However, small
quantity generatorm employers who
have less than 90 days of hazardous
west. accumuladom and solid waste
disposal operations which do not
involve hazardous waste are.aot
covered by this interim final rid. Also.
employees at hazardous waste sites
who will not be exposed or do not have
the potential to be exposed to hazardous
substances are not covered by this
interim final rule.
Emergency response employee, who
respond or will respond to Incidents
Involving hazardous aubst ” e are
covered by this interim final rule. Public
employees of states that have
agreements with OSHA under section 16
of the 0514 Act must Issue regulations at
least as effective as these to protect
public employee..
Muidapal or other sanitary Ia,wl 1l .
that handle domestic wastes axe not
covered. Similar waste paper or soap
metal operations are generally not
covered because of the type of wutes
they handle. But they could be covered
if they have clean-ups (or or handle
hazardous wastes meeting the scope
provision. of the standard.
Operations with no exposure to on-
site hazardous suostances. I.e.. road
building (or site access. construction of
on’site or the seuing up of temporary
facilities iii the clean zone or the closure
of a RCRA site involving the bwldlng of
a clay cap over hazard wastes, are
considered to be constriction activities
covered by the standards in 26 R Part
1928.
The scope and application provisions
carry out the intent of Congress and are
consistent with good occupational
safety and health policy. Employee.
performing dean-up operations under
CEECL/ii. RCRA (corrective action.) and
post emergency response. generally
those employees likely to hay, the
highest exposures to hazardous
substances over s longer period. are
covered by virtually all the provisions of
the rule. Employee, exposed to
hazardous wastes In routine R A
hazardous waste operations, who are
regularly exposed to hazardous waste.
but in a more controlled environment.
are covered by the more limited
requirements of paragraph (op of the
interim rinai rule. Emergency teepee..
workers, exposed usually for short
periods to often unknown but possibly
high levels of hazardous substano...
have specific provisions directed
towards this situation.
In paragraph (a)(2). Appiicoa’On,
OSHA designates th. requirements
which apply to the specific work
activities by this interim final
rule. The requirements set forth In
paragraph (1) of this section specifically
apply to the work conducted by
emergency respons . personneL such as
fire fighters. emergency medical system
( iS) employees and police. when they
respond to hazardous substance
Incidents.
The requirements set forth In
paragraph (o) of this section specifically
apply to the hazardous waste operations
at RCRA sites which are Involved In
disposal. treatment, storage and
handling of hazardous waste. The
exclusion of small quantity i p atora
and less than 90.day accumulators
excludes hoot coverage by the interim
ntis operators such as dry cleaners and
gas stations which come within the
purview of R IA but are not hazardous
waste operators in th. normal . ia.ith,g
of the term. lbs ayp,i .._i...mtely 4000
R A site. where reasonably large
quantitle. of hazardous waste, are
regularly handled. treated and stored
are covered by the rule. This reflects the
legislative tatant, meets the normal
meaning of hszardous waste operations
and covers the typ. of safety and health
hazards that this regulation Is designed
to canneL
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4565d Federal R. ist.r / Vol. 51. No. 244 / Friday. December 19. 1986 / Rule, and Regulations
Most of the requirements of the
interim ride apply to clean-up activities
of hazardous substance, or hazardous
wastes at CERCLA sites, corrective
actions at RCRA sites, and clean-up
operations of hazardous substance. at
emergency incidents alter emergency
response personnel have concluded
their duties.
The employer must also comply with
the standards in 28 CFR Patts i io and
1928. a. well a. with the requirements
specifically covered in this interim rule.
If there a a cunilict or overlap, the more
protective provisions are to apply. Since
this Interim rule does not cover afi of the
hazards present at hazardous waste
operations. other OSHA standards in
Parts 1910 and 1925 apply also. Other
OSHA standards cover many other
hazards. and OSHA wants to mak.
clear that the other standards continue
to apply. Also, hazardous waste
operators who are not within the scope
of this standard are covered by the Parts
1910 and 1928 standards.
In paragraph (aJ(3). D .fisueione.
OSHA hsa defined various terms used
in this rulemaking. The definition, for
hazardous substanme and hazardous
waste. hav, been taken frumthe U.S
Environmental Protection Agency ( AJ
and U.S. Department of Transponadan
(DOT) regulations. This has been don.
to assur, consistency and compatibility
between this interim rule and the nil..
and regulations of the ‘A and DOT.
The remaining deflnitloaa have been
taken for th. most part from SARA. the
Four agency manual (Refsr ,n ej or
existing OSHA standards.
The turn “established perutisaible
exposure limir Is defined to v,
direction as to the ap piIata degre . of
protection needed to be achieved by
personal prote ve equipment and other
similar purposes.
Paragraph (bJ-GenerajR.qufrem.ntp
In paragraph (b). CVtsrul
requnemencz. OSHA sets forth for the
most part a summary of requirements
which are specified in detail In later
paragraphs. The preambl, discussion for
later paragraphs sets forth the reasons
(or the various provisions. Many of
the.. requirement. are past of the
niinii,tum requirement, which Congress
directed OSHA to Issue In section 128(e)
of SARA. The 9’A manual ( A Order
1440.2) referenced in section 128(e)
require. extensive trsininq and medical
surveillance programs. Subpart C of 28
CFR Part 1928. also referenced, requires.
in addition, accident prevention
programs (1 1928.20(b)). use of
sppropl’iate personal protective
equipment (I 1.928.28). sanitation. and.
illumination requirements (U 1926.28
and 1928.27). provisions on sale
handling of toxic substances (* 1926.21
(bfls)). precautions in confined space.
( 1926.21(b (6p) and similar provisions.
Congress also directed additional
provisions for the proposed regulation.
which are considered relevant for the
interim regulation. These indude
engineering controls. maximum
exposure limits and monitoring.
handling requirements, decon’ a mlnadon
procedure, and emergency response.
Sased on this comprehensive statutory
direction OSHA believes that the intent
of Congress is to have employer,
implement a safety and health program
that will address the recognized serious
hazards to employees involved in
haiardoua waste operations. Therefore.
OSHA ha. incurp t.d the more
important elements of section 1 2 8(b),
along with the mandatory provisions of
section 128(e) of SARA. Inta this rule.
Each general requirement in paragraph
(b) calls (or employer action and directs
the employer to the specific paragraph
of this rule that contains the duties in
greater detail.
OSHA believe, that these
requirements are necessary to assure
adequate employs. protection to the
known hazards faced by employees. The
language used in these requirements has
been adapted from the various
documents listed In the Reference
section of this preamble.
Three of the subparagraph. In
paragraph (b) do not reference other
paragraphs in the regulation. Paragraph
(b)(l) requIres the employer to develop a
safety and health program far hazardous
waste operations. Such programs are
part of the requirenente ““l.ted by
SARA for the i tidw tel.. Thus. Subpart
C of R Part 1825 require, such a
in 1925,28(b) and EPA Order
1440.2 require. tr.t,thig In “safety plan
development” (pg. 5). OSHA’s
experience also establishes that a safety
and health program Is necessary to
protect employees so that hazard. are
assessed and control program are
systematically laid out. Prior OSHA
sectIon 6(b) health standards require a
compliance plan to set forth a health
program to protect employee, from the
hazard.
Paragraph (b)(14) requires complla”.
with Subpart P of 28 R Part 1928
which wv.zv excavation. OSHA
considers that those provisions already
apply, but they are singled out because
they are particularly Important to
monitor since much excavation scttvtty
occurs on hazardous waste sites.
Paragraph (b)(1S) requires employer,
to notify connectors and subcontractors
of the hazards identified by the
employer at hazardous waste
operations. Sections 126(bl(2 ) and (e) of
SARA indicate Congress’s specific
interest in protecting employees of
contractors and in involving contractors
in the sate operation of hazardous waste
sites. This provision assists the
contractor to become aware of the risk,,
so that the contractor’s employee. may
be better protected.
Paragraph (cl—Site CharacterizatIon
and ttha!ys:s
For an effective safety and health
program, which Conqreu dearly Intend.
(or employees, the employer needs to
know the hazards (aced by employee. In
order to develop and Implement
effective control measures. Sit.
characterization provides the
information needed to identify site
hazards and to select employee
protection methods. The more accurate.
detailed, and comprehensive the
information available about a site, the
more the protective measures can be
tailored to the actual hazards that the
employees may encounter. Corsgreu
clearly Intended that such a requitemsnt
be included. Subpart C of 25 CFR Part
1928 referenced in secdou 126(e) of
SARA requires “frequent and regu
Inspections of the job sits” (25 a .
l926.28(b)(2)). Also section 126(bKlj or
SARA provides for site analysis. Also
Item a of the EPA manual (EPA Order
1440.21 addresses this practice.
Site characterization generally
proceeds in three phase.
1. PrIor to sits entry, gather
‘information sway from the sits. conduct
reconnaissance from the site perimeter
and conduct offsite characterization.
2. Conduct anile surveys. During this
phase. restrict site entry only to
reconnaissance per.onnel.
3. Once the site has been determined
safe for commencement of other
activities. continue monitoring to
provide an updated source of
Information about site conditions.
It Is important to recognize that site
characterization Is a continuous pio ss..
At each phase of site characterIzation,
information shall be obtained sod
evaluated to define the potential
hazards of the sit .. This asessameut
shall beirsed to develop a safety and
health plan for the next phas, of work.
In addition to the formal Information
gathering that takes placs during the
phases of site characterization
described here, all aite personnel should
be constantly alert for new inlorms
about site conditions. Other
requirements of this section have b
adopted from reference 6.
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Federal Re*aster I Vol. 51. No. 244 I Friday. December 19. 1988 / Rules and Regulation.
45647
Porn graph (dI—Sile Cuniral.
As part of th.employen site safety
and health plan. this paragraph requires
the employer to consider site control to
minimize potential contamination of
employees. Several items need to be
considered. such as establishing work
zones, so that employees know the
hazards in different areas and will keep
out of hazardous areas where the
employees presence is not required. Use
of a buddy system and good site
communui atlons will assist in rescue of
employees who become unconscious.
‘rapped or otherwise seriously disabled
on site.
Site control is especially important in
emergency situations. Paragraph (d)
describes the basic components of a
program to control the activities and
movements of employee. and equipment
at a hazardous waste sIte.
Several site control procedure, can be
implemented to reduce employee
e cposwe to chemical. physicaL
biological, and safety hazards. The
degrees of site control necessary
depends on site characteristIcs, site size.
and the surrounding community. The
site control program should be
established in the planning stages of a
protect and modified based on itew’
information and site assessments
developed during site characterIzation.
The appropriate sequence for
Implementing these measures should be
determined on a site-specific basis. In
many cases. it. Will be necessary to
implement several measures
simultaneously.
The text used In this paragraph has
been adapted from Reference 6. Item 9
of the EPA manual (Order 1440.2)
indicates the need for this. In addition
Subpart C of 25 CFR Part 1925 provIde.
for regular inspection of Job site, so
hazards on the site can be controlled.
Paragraph (el—Training.
The Interim final rule include, specific
provisions for Initial and review training
of employees before they are permitted
to engage in hazardous waste operations
that could expose them ti saleS)? and
health hazards. Both the EPA manual
and 25 CFR 1928.21 and 1920.22 referred
to in section 125(e) of SARA bars
training and information requirements.
The EPA manual has specific provision.
for basic, intermediate and advanced
training. It require. 40 hours training for
employees managing uncontrolled
hazardous waste sites. 24 hours for
employees engaged in routine activities
and 32 hours for intermediate activities.
Additionally. section 125 generally has
requirements for extensive training
programs. The clear congressional Intent
of the interim rinal rule training
provisions is to provide employees with
the knowledge and skills necessary to
perform hazardous waste dean-up
operations with minimal risk to their
safety and health.
The provisions for employees include
a minimum of 40 hours of initial
instruction off the site. and a minimum
of 3 days of actual field experience
under the direct supervision o a trained
and experienced supervisor. at the time
of job assignment This amount of
trauung is specifically directed by
Congress (or the interim final rule by Its
reference to the EPA manual which
basically requires this amount of
training (or hazardous waste operator,
and Congress has specifically imposed
these hour end day requirements under
section 126(d) of SARA for us proposed
final standard. There are slight
difference, between the EPA manual
and sectIon 12 5 (c) of SARA. But they are
sufficiently slight so that OSHA believe.
it appropriate to make the interim final
rule consistent with what Congress
directs for the proposed final rule so that
employers need not make minor
modifications to their training programs
after iwo years.
In addition there are often many
hazards at a waste site. The employee
needs to be trained to recognize the
hazards and appropriat, work practice.
to mtnemi, thos. hazards. The
employee also needs to be well trained
in the use of respir*tors and other fan.
of PPE. Without training those may not
be used effectively and will not provide
adequate protection. An extensive
training program is necessary to achieve
these objective,. The paragraph
specifie, these and the other Items
needed (or effective training to avoid
hazards.
Managers and supervisors directly
responsible for hazardous waste site
operations are to receive the same
training as that of employee. and at
east eighr additional hours of
specialized tr.i iIiig on managing
hazardous waste operations. Since these
people are responsible for directing
others. it is necessary to enhanc . their
ability to. provide guidance and to make
informed decisions. Both the EPA
manual and sectIon 125(e) of SARA
dIrect eight hours of additional tr ”b’g
for supervisors and managers.
Th. provisions also stat. that
employees shall be retrained on an
annual basis on relevant matters such
as review of health hazards sod use of
personal protective equipment.
Employee, at hazardous waste
operations face serious haalth and
safety risks. Reminders are needed of
this and of work practices to avoid
hazards. Personal protectiv, equipment
provides much of their protection. If
there is no retraining in the use, cars
and maintenance of said equipment.
such equipment is unlikely to be utilized
in a manner to provide adequate
protection. The regulation provides for
eight hours of annual retraining. The
EPA manual for refresher training (Item
10 ) requires this amount of training.
in all areas of training, whether It be
(or general site employees. on-site
supervisors or for the use of specific
equipment the level of tr .iMng provided
needs to be consistent with the workers
job function and responsibllltie.. The
tinilung information should be presented
clearly and, as a further safeguard.
refresher training should be supplied to
reemphasize the initial training and to
update employee, on any new policies
or procedures.
A less detailed ti.hiing prevision Is
provided for employees working at
routine operation on RC 1A sites. Those
sites will have more stable wonidng
conditions and the hazards will be
better identified and more carefully
controlled. Therefore OSHA believe.
not as extensive training is needed for
those employees (or the Interim rule.
OSHA specifies 24 hours for the
required training based on the WA
manual which specifle. this as th, basic
level of truillirig for most routine field
activities. 0 5)1* in the proposal
document will request comment whether
this or a greater amount of training Is
appropriate for the permanent rule.
Paragraph (f)—MedicalSwveiilance
The interim final rule both Include,
specific provisions for baseline and
periodic medical .v. i.tions . The EPA
manual referred to in section 125(e) of
SARA has requirements for both Initial
or baseline and periodic medical
examinations. The examinations ar e to
be provided to those routinely exposed
to hazardous substances. to those who..
duties are physically taxing and those
who routinely wear respirators. In
addition sectIon 120(b) provides that
routine medical ev.mtnationa are to be
provided to workers engaged in
hazardous waste operations. Although
the language in slightly different, the
clear Intent Is to provide a
comprehensive medical surveillance
program for employees engaged In
hazardous waste operstions where It Is
medically prudent
The paragraph states medical
surveillance is to be provided to
employees who have been or are
expected to be exposed to hazardous
substances or health hazards above
established permissible exposure limits
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45658 Federal Raçster I Vol. 31. No. 244 / Friday. December 19. 1986 I Rules and Requladorts
for 30 or more days in a 12-month period
or who wear espirstors 30 days during
the year. These are the employees who
will be at greeter health risk and
employees who wear respirator, need to
be examined to determine whether they
can sa(ely do so as a routine matter.
Some dividing line is needed. because
employees who might be present on a
hazardous waste site only a low days a
year or working in areas such as officas
or the periphery where exposures are
tow would not normally benefit frees
medical surveillance as their likely
cumulative exposuree to toxic chemical.
would be very low probably not
significantly higher than the pnessl
population. The EPA manual indicates
some divtdlng lute is appropriate
because it directs medical surveillance
only (or employee, rouunely exposed
Wearing respirators (or any part of
each of 30 days will require medical
surveillance because it indicate. routine
exposurw to toxic chemicals. Ther. is no
requirement that there be 240 hours of
respirator use before medical
surveillance is required. Similarly being
exposed over established sate level, to
several chemicals each for less than 30
days but totalling more than 30 days par
year requires medical surve’ 11 ” This
indica tea routine exposures to
hazardous substances and also
combinations of chemicals may cause
synergistic effects creating greeter
health hazards than an individual
chemical.
OSI1A baa based many of the details
of medical surveillance on its
experience in issuing health standards
under section 8(bj of the 0511 Act and
as directed by section 6(bJ(7J of the Act.
Congress would be Itnowledgabl. that
medical surveillance requirements in
these standards represent OSRA,
expert judgeinent of what Is an
appropriate medical surveillance
program.
The appropriate medical test.. and
examinations depend on the subst.w.,.
an employee is exposed to and whether
the employee wear, a respirator. As.
employees on hazardous wast, sites
will be exposed to differing subs*.”c,s.
the paragraph can not specifically stat.
the required tests. Consequently the
paragreph states that the employer
provide to the physician Information on
exposures. respirator us.. and dud.. on
the site. The physician is then to
determine the appropriate medical
surveiUance protocol in terms of specific
tests and examinations. 9y the employer
specifying duties the physician also can
judge whether the employee can handle
the arduousness of the work.
In situations wher, most of the
employees on the site have similar
exposures the protocol may be similar
(or all employees. Where different
group. of employees on the site have
substantially different exposures.
several different protocols may be
appropriate (or the site s workers
depending on exposures.
There are a number of sources (or
guidance on specific medical
examination protocols. Chapter S of
Re(errnce 6 provides such guidance by
groups of chemicals likely to be present
on a site. It references other authorities.
The manual should be supplied to the
physician. It is also a basis (or the
medical surveillance program required
by this paragraph. La addition, the EPA
medical monitoring program guidelines
referenced by the EPA manual provides
guidance on specific protocols.
The paragraph require, an initial or
baseline medical examination either
prior to the start up date for employee.
who are currently working at hazardous
waste sites or prior to initial asst ent
to an tree where medical e •m1nedons
will be required. The purpose is to take
a detailed medical history and where
possible develop a health baseline prior
to any exposures so as to be able to
evaluate changes which may be
connected to hazardous substance
exposures. In addition the initial
examination will permit evaluation of
whether the employ,, can appropriately
wear respirators and whether the
employee has preexisting conditions
which would make exposur, to
hazardous substances inapp priate. An
initial examination has been required by
other OSHA health standards and is
recommended in Reference 6.
The physician must be informed of
what type of respirator, and personal
protective equipment n employee Is
likely to wear. The medical .v th.don
Is to appropriate tests to
evaluate the employee’s ability to wear
reeptrator, and PPL
The physician will also specify the
protocol of the periodic ex’tm*ndons.
These may be different from the Initial
ex”dmi, for example. only an
updated medical history would be
required. The periodic ex2miniidon. an
re - 5 d yearly. OSHA s-experience In
other health standards has been that
this is an appropriate period and It Is
also recommended by Reference 0.
EPA’. medical monitoring program
guideline. erosi referenced In the EPA
manual recommends baseline annual
examination generally and a termination
examination. It is reasonable to
determine periodically whether
exposures have brought medical
changes and to identify conditions
caused by chemical. at an early stage to
permit more effective u’eamient. In some
c lrcunistance.. the physician ma
advise more frequent exammation ,
Examinations are also to be provided
when the employee bring. to the
employer s attention sign. or symptoms
indicating possible overexposure to
hazardous substances. The employee Is
to be trained In recogiumng what
symptoms may indicate substances to
which the employee is exposed.
Example. may be dizalnes. or rash...
Examinations are also required, when
medically appropriate, during
emergencies when exposur, to higher
levels is possible. For example, a
urinary phenol teat is appruyriats (or
employees exposed to high levels of
beozene in an emergency.
Finally, a medical ex fvth ’-.don Is
required (or employees who have bean
required to have medical ex” 4 ’-dons
upon termination of employment or
reassignment to an area where medical
examinations are not required. This Is to
detect conditions which hay, developed
prior to departure and Is recommended
by the EPA program.
The medical examination is to be
provided under the supervision of a
licensed physician. Li.. the parson must
be qualified to make medical
judgements. As provided by seeder
8(b)(7) of the OSH Act, the ample
‘to pay the cost of the ex !tItn.doa
addition provisions are included so —
the employee Is not discouraged from
taking the e,r ,,vnation. The exam Is to
be given at a reuonable time and place.
If given during regular working hours the
einoloyee shall receive the employer’,
normal pay for that time. If the exam Is
given outside regular working hours, the
employee shall be paid his regular
wages foe the time spent t.frj g and
waiting for the ex ”i”-don.
The physidan shall makes report to
the employer of medical condition.
which may make the employ., at
Inereased risk to work at the sits and
any recommendations on limitations on
use of respirator, and other PPE as a
result of the medical conditions. This
will provide guidance for the safe
employment of the employee at the site.
The physician shall not reveal &agnilsej
or conditions unrelated to employment.
but shall inform the employ,, directly of
those conditions and any and all
occupationally related conditions.
The medical paragraph require, that
appropriate records be kept to assist In
future evaluation of the employee’s
health. Secondarily, this information
may assist in research on ommpatlonal
related.disea ,e. Records should be kept
pursuant to the provisions of 25 ‘F
igto.m Full consideration was givi
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Federal Reçstar I VoL 51. No. Z44 I Friday. December 19. i9an / Rules and Regulations
that standard to appropnate retention
penod
Parvzqreph (g)—Eaqineenng Cantm1s
Wont Pracuce... and P,xsoaznal
Pmtecziv. Eqwpat.at
Anyone entering a hazardous waste
site must be protected aqauut potenual
hazard,. The purpose of engineering
control.. work precdce and PPE is to
shield or isolate individuals Irate lb.
chemical, physicaL and biologic hazard,
that may be encountered at a hazardous
wast, site. Careful selection and us of
adequate engineetuig ouutrol& work
pracece. and PPE should ect soy
employe, from health and many other
hazards including ha wilt to the
respiratory system, skin. eyes face.
hand& feet. head, body, and h..eiaqi
Reqiwements of botfrSabpert Cot a
R Pure 1921 and the A manual
“d .(ed to be included in d i. standard
by Congrees w. - the p on and use
of personal pietectiv. equipiu..& Sen
(or example. a ( R 7 ‘ a nd items
7ta1, 9(.)l77 and 9(bJ(27 of t im A
manuaL I . addiUcesd O5fle%
reguj.doe, wliith apply to
waste operabo in 21 Q R Part 1ti
Subpart Z require a po... (0 vujous
toxic and hazardous eubsian..a to be
contzoU.d with auginaerw cimtr ,L , if
feasible eth.s . with PP The..
requirements apply co to empl ,..
and worker. o n Superlb.4 sttes
pursuans to EPA regelides. he 40 R
Part 300. FInally, Congres. speelflnd In
secuon 1z (h) diaL thart should be both
PPE and engineering control provisions
for di . permanent final standard.
Paragraph (gJ(i) b.sionlly corns. aver
the exisung reqinremeists of Subpart Z .
OSHA regulated toxic and an1 .
substance. at, to be controlled to the
permassabl. exposer . li t If feasible
not feesibI. they are to be controlled
with PPE.
Paragraph (gJ(2J provide, bar to
achieve established permissible
exposure, limit, (or substance, not
regulated by OSHA . the employer may
use an appr n .te combhiatiso of
enginaenng cootrol& work practice..
and PPE. A. the., are intone.
regul.doco. prefetenc. (o,engiseerfn
controls wher, not akesdy
would not be eppwynu..ti’bec j the ’
limited Urn. ham. of thin regulate. and
the frequent Inability to insteB seth
controls in a short period.. In addition it
is OSHA’s experience that dii. In so
appropriate approach based on the
emergency temporary standards it hae
issued which are also us etiact for.
limited period. OSHA will ask (os
comment in thee. areas in the proposal
document.
Examples of engineering controla
which may be feasible are pressurized
cab. on materials handling equipment or
pressurized con troL rooms in materials
handling areas. However, in many cases
personal protecuve egwpmsnt will be
the only leasible means for providing
protection to employees engaged La
hazardous waste opera iloaa. ,.Th.
selection of personal protective
equipment (PPE) must be based an the
information obtained during th* site
characterization and analysts, as Is
required by paragraph (gj(3)(lJ of this
standard, Once en estimate of the type,
of hazards and their potential
conceutsenon baa been obtained. the.
proper respwazar. and proactive
d”husg csn be selected based on. the
performance characteristics of lb. PPE
relative to the sit. bazerde and work
condition.. asia required by paragraph
(gJ(3)4UJ of the standard. Thee.
requirement. are dusted hose
Reference land ate ala. supported by a
N1OSR docamsas. ”Pereo naI Ptotscth .
Equipment for Hawdeua Matolajs
lnddenw A Selection Cai’ The ,.
two do’ ”—t alareupport the
requirement. at paragraphs (gJ(Z )
and (gj(2)(Iv) which require cindy.
pressure respixator. esth
proviaia to bsemdinLX3U4
atmosphere, and lntally-wp-’•’uthiq
cheancel psu.aat u . oats to be used
wherecw, . . of the akln.by the
sub .t wanId ha aaLDLH .“-tfoa .
Proper r ,epiroav s.lsuttuu. en
required by thi, standard and 21
101n231. involve. providing a sufflmens’
protection (actor throi the type of
reepustor used. , tcr fitting, work
site conditions, and respirator selaitlou
and use piegr Prup.r proIecth
clothing selectio, as requked ’by hi.
standard. lnvolvaa choosing protective
clothing made of matarf ale and
cu . suiicdoa which will ..v5..t
breakthrough of hazardous substance.
by permeation and penetration, or
reduce the level of exposure tea safe
level during the employee’s duration of
contact Information on the perl ’onuance
characteristic, of WE I . available in test
reports and manufa nuers literature.
Appendix 3 provides non-mandatory
guideline, on dassifying subsmizc.
hanurdi as four levels (A. ft C. and D
and matching four levels of appropriate
protection provided by different
protective ensemble,. flesi guIdeline.
may be used as a basis far protective
clothing selection, and the selection
further refined when mate information II
obtained, as provided far in paragraph
(g)(2)(v) of lb. standard. (In certain
orcumatance,, this standard doe.
specify the a . .wrtate level of
protection,, See paragraph (cl(4 11U111.
Paragraph (gj(3 vi) crasa reference the
exiaun.g requirements to select and use
PPE pursuant to the requIrements o121
CFR 1910. Subpart I.
Paragraph (gfl4) require, totally-
encapsulating suit materials used (or
Level A protecnon (the highest level of
pro tectlonJ to provide prot*G&n fromi
the specific hazards which have been
identified as requiring that level of
protection. The purpose of this
requuemant is to be certain that the suit
selacted is comprised of materials which
will provid, the necessary protection.
•Ince ,ao.cce matariat will provide
protection from ad hazards, Paragraphs
(gJ(4J(Li and (gJ(4J(lii reqeis, totally—
encapsulating suits to be capabhrof
maintaining positive air pressure to help
prevent Inward feakageofh.... ...J ...n ,
substance,, and to be capable of
prevenung inward gas leakag . of mars
than OJ percent. Th.s.reir ’
winch age based on testing of totally.
encapsulating suits, are Included to
establish a “ . “ lavel of suit
performance so that thus level of
protection can be quantified far prepso
selecuon. The example test method. Is
Appendix A for totaily-.” ’puIadng
chemicaL protective suits wars . Ira .
from draft American Socety fat Tssthig
and Materials committee do’’
Paragraph (gj(5 requires a WE.
program to be establlahsd .. Ibis
requirement Ii ba—ed upon ril,rsu.i &.
a CFR 192128, EPA manual i1.e.. 4 and
7(g). and La included, since. La moat
ca see. WE wilt be the only protection
feasible (or employee protection, and.
because the amount of protection
afforded by WE La dapendent upon se
many (actors, such as selection, I V, work
duration and conditions, and
decon1a 1.M t4Os, The WE program Is
required to Insure that ha teed of
protection. afforded by WE Ii
and cont4IitI to be foi
employee safety during hamedoo.
waste operations,
Porogzoph (h)—Monitoring
It is essential that employers ha
provided with accurate information em
employee exposures In ordar to
Implement the conect. WE. engfnemias
control, and work pr.erti’ee Airborne
contamt nts can presents , 1riRP. 5
threat to employee safety and health.
Thus, identification and quantification
of these contaminants through air
monitoring is an essential component of
a safety and health programata
hazardous waste sits. Reliable
meaauremenza of airborne conu1 .!1t 4 .
are useful for salacting personal
protective equipment. dateriiii ung
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456$j] Federal Re*jite, I Vol 51. No. i t I Friday . December 19. 1988 I Rules and Requlations
whether engineenng controls can
schieve permissible exposure limits and
which control, to use. delineating areas
where protection is needed. assessing
the potential health effects of exposure.
and determining the need (or specific
medical csomtormg. As mentioned
above. section 128(e) of SARA mandates
the use of PPE by its direction that at a
muiunum the requirements of the EPA
manual and Subpart C be followed.
Thos. includ, requirements for use of
PPE. BUt PPE cannot be effectively used
unless momloring has identified he type
of PPE to be used. lids is a further
reason to include this provision In the
interim final nile.
The language of this paragraph was
adapted from reference 6.
Parirgriiph (i)—hifonnationaJ P ig s ,
In paragraph (I). Informational
Progrums. OSHA is requiring employer..
as pan of their safety and health
program, to develop and implement a
site specific safety and health plan for
each hazardous waste operation site.
The site safety end health plan shall
be developed by the employer. utilizing
the other parts of the organizational
plan and the employers safety and
health program. The sits safety and
health plan will address the anticipated
safety and health hazards of each work
operation or activity and the means to
elimni2te the hazards or to effacth.fy
control them to prevent injury or illness.
This site safety and health plan Is to
Lncludm (1) The names of those
responsible for assuring that safe and
healthful practices and procedure. are
followed on the whole site: (2) rIsk
analysis or systems analysi, for specific
work tasks or operations on the sIte: (3)
employee training assignments both off
site and on-th.-)ob.tralnlng on site: (4)
the list of required personal prutacflvu
equipment needed for each work task
and operation on site: (5) the employuVs
medical surveillance program for he
site: (6) the methods for Identification
and characterization of safety and
health hazards on the site Including the
momtoring procedures that will be don.
throughout the work on sire: (7) sIte
control measures including the.. for
establishing work zones on the site: (I)
the necessary decone. vth.dcu.
procedures which are matched to the
kinds of anticipated conta iz.uts to be
cleaned from employees end equipment
(9) the standard operethig procedure, to
be used by employees on site: and (10)
the contingency plan for emergencies
and confined space entry procedures.
Safety meenug, and briefings and sits
inspections shall also be mentioned In
the plan as well as the procedures to be
followed in changing or modifying the
plan.
The site safety and health plan is
necessary to protect employee health.
There are many hazards at a hazardous
waste operation which need to be
determined and addressed. The plan
provides that this will be done in a
systematic manner so that hazards will
not be massed and so that needed
pro tecuve action will not be overlooked.
The approach used has be adapted from
reference a.
Paragraph (/1—Handling Drums and
Conrarneav
The handling of drums and containers
at hazardous waste site. pose. one of
the greatest dangers to hazardous waste
site employees. Hazards include
detonations. fire.. explouions. vapor
generation. and physical Injury resulting
from moving heavy container, by hand
and working around stacked drums.
heavy equipment. and deteriorated
drums. While the,, hazards axe always
present proper work practices can
iuni,,ii,e . the risks to site personneL
H ’ Itng and storage of hazardous
substances is addressed In Item (a) of
the EPA manuaL
Containers are handled during
characterization and removal of their
contents end during other operations.
Many of the hazards encountered during
the h.ndllng of drum. occur during the
handling of containers. The relative size
ole container when compared to the
size of a drum is no indication of the
degree of hazard posed by the container.
They should be treated In accordance
with the level of hazard posed by their
contents not by their size. The language
used In this paragraph was adapted
from Reference 6.
Paragraph (k)—Oecontan,Jrtadon
As part of the care of PPE required by
this standard. decont , ien tian Is a
necessary practice to property protect
thos, employee, who may be exposed
to hazardous substances.
Decontamination provisions protect an
employee from being exposed to
hazardous substance, which would
otherwise be on the employee’s PPE
when It Is removed. The 5 t. ,d.r
requires that a decont. th ..tion plan be
developed and implemented before any
employee, or equipment may enter
sreaa on site where potential for
expo.ure to hazardous subetances
exists.
As required by the standard.
decont. ,vm’.don procedures and areas
shall be developed to
hazardous exposures to employee.
whose equipment and PPE ar. being
decon’.”.ted, as well as to
employees who are assisting in the—
decontamination of workers and
equipment. These measures are required
since without proper procedures and
decontamination areas, employees nay
be unknowingly exposed to hazardous
substances which have contacted, or
otherwise adhered to equipment and
clothing. The standard also require. that
all employees. clothing, equipment and
decontamination fluids and equipment
be decontaminated or disposed of
before leeving a contaminated area.
These provisions are required so that
contaminated persons and materials do
not leave the hot zone’ and thereby
expose other employees and persons to
hazardous substances.
Decontamination methods and
cleaning fluids must be matched tothe
particular hazardous substance at the
site in order for the decont2iIthI tfon
procedures to be effective in removing
the hazards from PPE and other
equipment. No one decontamination
fluid will be effective for all hazardous
substances. As required by the standard
the decontamination program must be
effective and It must be monitored by
the site safety and health officer to
maintain Its effectiveness. The,.
requirements are included so that
employees are not exposed to hazaW
substances by reusing PPE and other
equipment which are still cont m .n ts
The language used In this paragraph
wag adapted from reference 6.
Paragraph (1)—Emergency Response
SectIon 128(e) of SARA specifically
discusses protecting “emergency
response workers.” in addition In the
EPA manual under items 4 and 9 and In
29 CPR 192R and 1928.24 call for
preparations and pl nn’ng for
emergencies. Congress made It. Intent
clear that emergency pl mthig and
response is en Important part of any
employeYs safety and health program
and indicated that it Is to be addressed
in the interim final rule.
In paragraph (lJ(l), Emergency
Response. GeneraL OSHA Is requiring
employeri covered In paragraph
(a)(Z)(iI). who are involved in hazardous
waste operations, as part of their o .elte
contingency pI.i nlng to develop and
implement an emergency response plan,
These employer. are to inform ..ll.thelr
employee, on the west. site about the
emergency response plan. Th, plan Is to
be available for use prior to the start of
work on the uite. The plan will bea part
of the site safety and health plan. The
elements of thu emergency response
plan will Includsi (1) RecognitIon of
emergenciesi (2) methods or procedun
(or alerting employees on site: (3)
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45861
evacuation procedures and routes to
places of refuge or safe distances away
from the danger area: (4) means and
methods (or emergency medical
treatment and first ai± (5) line of
authority (or employees: and (67 on-sate
decontamination procedures: site
control means and methods for
evaluating the plan.
Employers whose employees will be
responding to hazardous substance
emergency incidents from their regular
work location or duty station, such as e
fire department, fire brigade or
emergency inedical service. will also be
required to have an emergency response
plan. These employees which may be
called upon to respond to hazardous
substance emergency incidents
involving a railroad tank car, motor
carrier tank truck or to a plant location
are considered off-site emergency
response activities wider this section.
The emergency respons, plan is to
include the incident eo”.” system
reqwred in paragraph (17(3) at this.
section.
In paragraph (11(2). Hazanibrss waste
ooetutiofli. on-site emeiyeitcy se.ponsa
OSHA is requiring the tr i g of on-site
emergency response persoemel to hive
the seme basic training as for the other
employees involved In on-site hazardous
waste.operstlone plea thotr n., 5
needed to develop and retair the
necessaty skills for anticipated
emergency response activities. Also, he
procedures for handling hazardous
substances on-site emergency Incident,
are to be oriented to the specific site and
made a part of the emergency response
plan.
The requirement of paragrapha (lJ(3}
and (17(4) apply more broadly to all
employers whose employees respond to
off-site emergency incidents. In
paragraph (17(3). Off-sit. emergency
response. OSHA Is mandating that
employers, such as fire departments.
emergency medical and first-aid squads.
fire brigades. etc.. conduct monthly
teaming sessions for thefr employee.
totalling Z4 hours awiually.
Not..—OSHA do.. c ii have l ’ ”’ ’s
OYCF lists and local gse — — .
OSHA stats plan Mate. eon lmss
regulation. as effective a. these to cover
stat. and local gavei set employ.., lath.
‘tat.-
Training activities. such sabreathing
apparatus use. training, ho.. handling
and preplamunrmay be used as tr.Imf!g
subjects (or the monthly semiona
provided hazardous substance Innidont
operanons am inelud.d In the’.
presentation. dts-’ -’ou or drilL The..
training sessions and drills meat involve
at least 24 hours of training on an
annual basis.
The incident command system shall
be established by these employers for
the incidents that will be under their
control and ihall be interfaced with the
other organizations or agencies who
may respond to such an incident.. The
National Transportation Safety Board.
as a result of its investigation of
hazardous materials incidents. baa
consistently recm ’ ended hat better
state and locaL emergency response
planning be done to reduce the loss of
life and property and that a system
using a command post and on-scene
co” ” .r be implemented. (S..
Special fnvesiiganon Report On-emii.
Coordination ilrnong Agencies at
Hazardous Mat.naLv Accident. P4153-
Hri4-7g-3. September13. 197k and
Multiple Vehwie Collisions and Fire.
Caldecoet Tunnel nenrOnkiand.
California. Pn ’Sa/HAR—83/O1. National
Transportation Safety Board.
Washington. DC. April 7. 1982. for
further uiformaUon . Where available.
state and local district emergency
response plans shalt be utilized. in
developing the incident covI l.nIl
system and Wa emergency response
plan to assure coinpaisbility with the
other emergency rupo’ ’Mng agonces or
employers.
In paragraph (17(47. Ffarnzdosw
materiaL, earns. OSHA is requiring
employer ,, who . tilIi . specialty trained
teams involved in intimat• contact with
controlling or handling hazardous
substances, to provid, special training
(or th. affected employee. in such area.
as care and use of chemical protective
clothing. technique. and procedure, for.
stopping or controlling lashing
contamers and decontamination of
clothing and .qui )’’ t for “4cip ’.ted
hazardous substance incidents. The
employer is to mak . available ,o each
team member a physical ei’ ’don by
a licensed physician and tolmpIa Il I a
medical surveillance program us
accordance with tha requirements at
paragraph (1) of this simian.
In puiragraph (1K3) . OSHA Is requiring
employers covered In paragraphs (a)(27
(I) and (Iii of this section. who wilLho
involved in claanmg up hamedon. welts
alter the emergency response actieWee
are concluded, to comply with the rnui
requirement. that apply to other,
involved with hazardous waste clean-up
operations. These hazardous- waste
clean-up operations will be typically
done by up cisl .wtruictors and not by
ho., agencies Involved In responding to
Wa initial emergency Incident.
Parcgrvph (rn/—Ill umsnat:on
OSHA is required by SARA in section
125 1e) to cover lightin; of the workaita.
in paragraph (mJ. Illumination. OSHA
requires certain minimum illumination.
levels for work areas that are occupied
by employees. Section 128(e) of SARA
requires as a m. I . .num the Inclusion of
the requirements of Subpart C of 29 CFR.
Part 1928. SectIon 1928.28 of that
Subpart require. the amount of
illumination see forth In this paragraph.
Paragraph (nj—Sanitation/br
Temporary Workastew
In paragraph (n). Sanitation far
tern porary workanes. OSHA sets
m,rnmum requirements for potable and
non-potabla water suppliese toilet
(acihtiaa. and other areas related to
sanitation at temporary rkpla .-
OSHA is .‘.n’4ted by SARA In section
128(e) to Include sanitation requirements
in the Inte r im final rule since It require,
Wa incorporation of praviaiou of
Subpart C.
Paragraph (o)—Opemdone Conducted
Under the Resource Cons.rveoon and
Recovery Act of 197e(RCR .4j
OSHA Is providing a separate
paragraph (or operations conducted at
worksates involving hazardous waste
storage. disposal end treatment
operating under he Resource
Conservation and Recovery Act of 5
(RCRA). This separate paragraph of
requirements Is a 1 prlate because
RCP.A site operations. (not Including
major corrective actions and their
associated hazards which are Bk.
CERCLA sites and are covered by the
main part of Wa s ’ ”.’d) generally am
different from the operations and
hazards found on a CLA dean-up
site. For example..R A sites w...,d
- by this paragraph tend forth. most part
to be fixed on-going operations
Involving the receiving, processing
storage. treatment, and disposal of
hazardous wastes or substance from
outside sources. CLA sites on the
other hand are temporary emergency
clean-up operations involving often
undefined and subst.uirial qusatidasof
hazardous substances.
Cimsequantly hazards should ha
better controlled and mare routin , and.
stable for the RC 1A sites cire.rsd by
this paragraph and so lass extensive
requirements ate appropriate.
Paragraph (p)—SJazt.up Dates
Section 129(e) of SARA
these interon final regulations take
effect an Issuance. Consequastly. these
regulanons do become effective on
issuance. However completion of
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. * 662 Federal Re*ister I Vol. 51. No. 44 I Friday December 19. 1988 I Rule, and Re uIation,
‘iiolemenuition for some provisions is
not Feasible immediately. For these
pro’ isIons. commencement of
implementation must begin immediately
hut rompletion of full compliance is
required s soon as possible or Ieasthle
ht,i in no case later than a specified
‘Jate. which is rio longer than three
months.
his OSHA s judgment that all
pro istons can be fully implemented by
‘he periods specified. OSHA also
believes thai the immediate
effccii’.enesa provisions specifically
.ipplv to the mandatory requirements.
OSHA does not believe that Congress
•ntended that work at current hazardous
wdste operations stop until
implementation of all requirements cart
be feasibly completed. This paragraph
so indicates. However. for new sites.
these requirements can be completed in
ddvance. It is not OSHA’s intention that
emergency act;ons necessary to protect
‘he public safety and health be
prevented because in a particular
circumstance i i is not feasible to carry
oul particular requirements of this
stardard in the time needed to respond
to the emergency
Ill. References
t. Superfund , mendments and
koatithonnition Act of 1965 (SARAL Pub. L
:. C .mprehenstve Environmental
Ri won’i’. Cumpensanon and Uubdily Act of
limo ICERCL or ‘Superfund’), Pub. L 95-
3:0. L)rcember 11. 1980,94 Stat. 17.
3. Rrsourci. Conservation and Ri’covery
ci i.F 19 ’8 (RCRA). Pub. L 94—580. October
1. 1970. POStal. :795.
4. “I !eulth and Sa(eiv Requirement, for
Emplt.tces F.ngaqed in Field Activities”,
Fi ‘ronmental Protection Agency Order
u44 0. U.S. Environmental Protection
• q .j July I. 1951.
5. Subparts C and 0 of CFR Purl 1920.
6. “Occupational Safety and Health
(;udance Manual for Hazardous Wut. Site
cii’.;Iieu.. Occupational Safety and Health
. iI ,niaiiuration. Environmental Protection
Agency. U.S. Coast Guard, and National
Iiisiiuate for Occupational Safety and Health.
011115 (P. IOSH1 Publication No. 55-115.
Octoner 1965.
IV. Regulatory Impact Analysis.
Regulatory fle ubWty Analysis and
Environmental Impact Analysis
OSHA anticipates that this Interim
final standard will have a significant
impact upon employers and their
employees who work at LA sites
and at some RCRA sltem and who
respond to emergency clean-ups of
hazardous substance spills. OSHA has
had little time since the enactment of
SARA to collect Information concerning
these industries. As a result, the
currently available information is
insufficient for OSHA to use to estimate
the ootentisl benefits and costs that
would occur as a consequence of
compl.ance with this tntenm final rule
OSHA is collecting additional
information to be used in conjunction
with the information from the comments
that will be received in response to
publication of the proposed rule
covering hazardous waste operations.
This information will be sufficient for
OSHA to provide a complete Regulatory
impact Analysis for the final rule that
will govern hazardous waste operations.
Requlawry Flexibility Act Analysis.
The requirements of the Regulatory
Flexibility Act are not applicable to this
rnterim final rule, under S U.S.C. 603(a).
because notice and comment proposed
rulemaking under the Administrative
Procedures Act, or any other statute. is
not required.
Envrrunmen:al Impact Analysis. The
National Environmental Policy Act
(NEPA) of 1969 (42 U.S.C 4321 et seq).
as imolemented by the regulatIons (40
CFR Part 1500) of the Council on
Environmental Quality (CEQ). requires
that federal agencies assess their
regulatory actions to determine if there
is a. potential for a significant impact on
the quality of the human environment
and, if necessary. to prepare in
environmental impact statement.
in accordance with these
requirements and DOt. NEPA
Compliance Procedure. (29 R Part 11.
Subpart 8. section 11.10(aJ(4)), OSHA
has determined that due to the
compressed rulemaking schedule
imposed by the Congress in issuing the
interim regulation, no environmental
impact statement will be prepared for
this Interim rule.
In similar situations. for example.
when an emergency temporary standard
(El’s) has been issued, the courts have
held that NEPA does not require
advance preparation of an
environmental statement for an El’S
(Dsy Color Manufacturing Association
v. U.S Deportment of Laborr 496 P U
98.107(3rd C’ar. 1973)). Thu interim final
standard is similar in nature to an El’s
issued for relatively brief periods for
short notice pursuant to section 6(c) of
the Occupational Safety and Health Act
of 1970 and section 101(b) of the Federal
MIne Safety and Health Act of 1q77. The
DCL NEPA regulations set forth In 29
CFR Part 11. SubpartS. section
11.10(aJ(4). provide that In the..
situations the regulation. set forth in 40
R Paris 1300 or seq may not be strictly
observable.
OSHA. however, will assess the
environmental effect, of the proposed
permanent regulation of hazardous
waste sites. The possibility that
ince’dsed training related to emph
safety and health protection will aL
affect dnd reduce inadvertent
en’.irgnmental releases of hazardous
suostances at waste sites will be
analyzed. The resuLts of this study will
be a aildbie for review and comment
prior to the hearing on the proposed
permanent standard and will be an
appropriate issue for discussion at the
public hearings scheduled for the
proceeding.
In the interim. OSHA welcome. any
comments on any environmental effects
that might occur as a result of
promulgation of a rule on hazardous
waste sites.
V. International Trade
OSHA has preliminarily concluded
that this interim final rule will not
significantly affect international trade.
The firma that will be primarily affected
by this interim final rule deal with
hazardous waste products and are not
involved in international trade. In
addition, the hazardous waste. to be
handled under this interim final rule are
primarily by. products from previously
manufactured goods and consequently.
any potential costs would not be borne
by the goods that are currently being
traded, Nevertheless, the information
that OSHA is collecting and the
information that will be supplied In
response to the publication of the
proposed rule covering Hazardous
Waste Operations will be carefully
reviewed and analyzed to establish the
potential impacts of the final title upon
International trade.
VI. Stat. Plan States
This Federal Register document adds
an interim final rule (section 1910 .l ,
“Hazardous Waste Operations and
Emergency Response”) to existing
Subpart H of 29 CFR Part 1910, OSHA’.
general Industry standard. on
hazardous materials. The 25 States with
their own OSHA approved occupational
safety and health plans must develops
comparable standard applicable to both
the private and public (State and local
government employees) sectors within
six months of the publication date of
this Interim final rule or show OSHA
why there Is no need for action. e.g..
because an existing state si.ard
covering this ares is already “at lust as
effective” as the new Federal standard.
The.. state, are Aluka, Arizona.
California. Connecticut (for state and
local government employees only).
Hawaii, Indiana, Iowa. Kentucicy,
Maryland, Michigan, Minnesota,
Nevada. New Mexico. New York (for
state and local government employee
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Federal RegisterL Vol. 51. No. :i-i I Friday. December 19. 1986 / Rules and Regulations
only). 1or:h Carolina. Oreion. Puerto
Rico. South Carolina. Tennessee. Utah.
Vermont. Virginia. Virgin Islands.
Washington. and Wyoming. IJnnl such
time as a state standard is promulgated.
Federal OSHA will provide interim
enforcement assistance, as appropriate.
in these states. -.
List of Sub jects in 29 CFR Part 1910
Containers. Drums. Emergency
response. Flammable and combustible
liquids. Hazardous mater.als. Hazardous
substances. Hazardous wastes.
Incorporation by reference. Materials
handling and storage. Personal
protective equipment. Store!. areas.
Training. Waste disposaL
VII. Immediate Effectiveness and
Absence of Notice and Comment
Section 128(e) of SARA specifically
provides that the ‘Secretary of Labor
shall issue interim final regulations
under this section within 60 days. . 7
after date of enactment. The express use
of the phrase interim final regulations.”
which in the rulemaking context
commonly describes a rule Issued
without notice and comment. In
connection with the extremely limited
time frame provided by this section.
makes dear that Conçess intended this
ruie to be issued without the time-
consuming process of notice and
comment. The Agency. therefore.
concludes that neither the notice and
comment rulemaking provisions of the
OSH Act nor those of the
Admini .Wa dv , Procedures Act are
aoplicable to the issuance of this interim
final rule. The Agency also expressly
finds that “good cause” exists under 5
U.S.C. 553(b)(B ) for not providing notice
and comment because notice and
comment procedures. tinder these
circumstances, would be impractical
and contrary to the public interest.
Section 1 2 8(e) also expressly provides
that interim final regulations shall
take effect upon ss”.”c - . . 7 OSHA
finds this specific direction of law
requires the Agency to Issu, this rule
with an immediate effective data and,
further. constitutes good n . not to
delay the effective date of this rule until
30 days after publication under 5 U.S.C
553(d).
Authonty
This document baa been prepared
under the direction of John A.
Penderginss. Assistant Seeretasy of
Labor for Occupational Safety and
Health. U.S. Department of Labor. 200
Constitution Avenue NW.. We hin*tou.
DC. Pursuant to section 128(e) of the
Superfund Amendments and
Reauthorization Act of 1986 (Pub. L.
99-409). Sections 6 and 8 of the
Occupational Safety and Health Act of
1970 (!1 U.S.C. 655. 857). Sections 3 and 4
of the Administrative Procedures Act (5
U.S.C. 552(a). 553). and Secretary of
Labor s Order 9-83 (48 FR 35736). CFR
Part 1910 is amended by adding a new
§ igio.irn Hazardous Waste
Operations. as set forth below, effective
December 19. 1986.
Signed at Wasiunqion. OC this leib day of
Oecemoer 1986.
(ohm A. Psuder w.
,4ss,zwnc Secretary of Labor.
PART 1910—OCCUPATIONAL SAFETY
AND HEALTh STANDARDS
1, The Authority citation for Subpart
H of Part 1910 is amended by adding the
(ullowuigi
Authertiy’’ • Section 1910.128 issued
under its authority of s.cnan iZSIs ) of the
Superfund Amsndnsnis and Raauthonzaiion
Act of 1966 (Pub. I.. 00—i OU ) . Sections 6 and S
of the Occupational Safety and Health Act of
1970(28 U.S.C. 853. 857J. sections 3 and 4 of
the Adminasouuve Procedure Act (5 U.S.C.
5 521a 1. 333) sod Secretary of Labor’. OrderS—
63(46 FR 35738).
2. Part 1910 of TItle 29 of the Coda of
Federal Regulation. Is amended by
adding a new 1910.120 to read as
follows:
9 1110.120 Hmmdous wants opersuone
and ctDM 4flC . . .opunse .
(a) Scope. application, and
defündons.—(l) Scope. This section
covers employers and employees
engaged In the following operatlonm
(i) Hazardous subatance response
operations under the Comprehensive
Environmental Response.
Compensation, and Liability Act of 2930
as amended (42 U.S.C 9601cc seqJ
(CERCLA). including initial
investigations at CLA sites before
the presenc, or absence of hazardous
substances baa been ascertained:
(Ii) Malor corrective actions ‘ ak. ” In
clean-up operations under the Resource
Conservation and Recovery Act of 1975
as amended (42 U.S.C. 6001 et seqj
(RCRA)
(lii) Operations Involving hazardous
waste storage. disposal and treatment
facilities regulated under 40 R Parts
264 and 285 pursuant to RCRA except
for small quantity generators and those
employers with less than 90 days
accumulation of hazardous wutes as
defined In 40 R 2eZ.34
(Iv) Hazardous wute operations sites
that have been de.igtated for clean-up
by state or local governmental
authoridem and
(v) Emergency response operations for
release. of or substantial threats of
releases of hazardous substances and
post-emergency response operations for
such releases.
(2J Application. (I) All requirements of
Part 1910 and Part 1925 of TItle 29 of the
Code of Federal Regulations apply
pursuant to their terms to hazardous
waste operations (whether covered by
this section or not ). In addition the
provisions of this section apply to
operations covered by this section. If
there is a conflict or overlap, the
provision more protective of employee
safety and health shall apply. 29 cFR
19 10.3(c)(1) is not applicable.
(ii ) All paragraphs of this section
except paragraph (o) apply to hazardous
substance response operations under
CERCLA. major corrective actions taken
in clean-up operations under RCRA.
post-emergency response operations.
and hazardous waste operations that
have been designated for cleanup by
state or local governmental authorities.
(iii) Only the requirements of
paragraph (a) of this section apply to
those operations involvuig hazardous
waste storage, disposaL and treatment
facilities regulated under 40 R Parts
254 and 255. exceot for small quantity
generators and those employers with
less than 90 days accumulation of
hazardous wastes as defined In 40 R
282.34.
(iv) Paragraph (I) of this section
applies to emergency response
operations for releases of or substantial
threats of releases of hazardous
substances.
(3) Definitions— ”Huddy sysrem
means a system of organrmng employees
Into work groups in such a manner that
each employee of the work group is
designated to observe the activities of at
least one other employee In the work
group. The purpose of the buddy system
is to provide quack assistance to those
other employees in the event of an
emergency.
‘Decontamination” means the
removal of hazardous substances from
employees and their equipment to the
extent necessary to preclude the
accwvence of foreseeable adverse
health effects,
“Emez ency response means
response to any occurrence which
results, or Is likely to result In a release
of a hazardous substance due to an
unforeseen event.
“Esmblithedpermissibll exporar.
limir means the Inhalation or dermal
permissible exposure limit specified In
29 CFR Part 2910. Subpart 2. or If none
Is specified the exposure limits in
“?ZIOSH Recommendations for
Occupational Health Standards” dated
September 1986 Incorporated by
reference. or if neither of the above Is
specified. the standards specified by the
American Conferenc. of Governmental
Indusulal Hygienists In their publication
“Threshold Limit Values and Elological
Exposure Indices for 1986-67’ dated
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45664 Federal Reciter / Vol. 51. No. 244 / Friday. December 19. 1986 / Rules and Re pilat ions
i e incorporated by reference. or if
none of tha above is specified. a lim it
based upon a published study or
manuiacturer,’ safety data sheet
brougni to the employer’s attention. The
two dociuuenu incorporated by
reference are available (or purchase
from the foliowmç
NZOSH. Publications Olsseininatgoe.
Division of Standards Development
and Technotogy Transfer. National
Institute for Occupational Safety and
Health. 4678 Columbia Parkway.
Cincinnati. OH 452 (513)631-4267
American Conference of Governmental
Industrial Hygienists. 6500 Glenway
Ave.. Bwldlnq 0 -7. Cincuinad. OH.
45211—4438. (313) 661—7881
and are available (or inspection and
copying at the OSHA Docket Omce.
Docket No.5-780. Room N-4171 , 200
Constitution Ave.. NW.. Washington.
DC 20210.
“Hazardous substance” means any
substanc, designated or listed wider (I)
through ( iv) below, exposure to which
results or may result in adverse effects
on the health or safety of employeem
(I) any substance defined under
section 101(14) of C CLA.
(ii) any biological agent and other
disease-causing agent as defined in
section 104(aJ(2) of CLA.
(lii ) any substance listed by the U.S.
Department of Transportation and
regulated u hazardous materials wider
49 CFR 172.101 and appendices, and
(iv) hazardous waste.
“Hazardous waste” means (i) a waste
or combination of waste, as defined In
40 CFR 261.3. or ( Ii) those substances
defined in 49 CFR 171.3.
Hazardous waste operation” means
any operation involving employee
exposure to hazardou. wastes.
hazardous substances, or any
combination of hazardous wastes and
hazardous substances that are
conducted within the scope of this
standard.
“Hazai’dou., wasse site’ or “site”
means any facility or location at which
hazardous waste operations within the
scope of this standard take place.
“Health hazard” means a chemical,
mixture of chemicals or a pathogen for
which there is statistically significant
evidence based on at (east one study
conducted in accor 4 ance with
established iclentific principles that
acute ott chrwuc health effects may
occur in exposed employees, The term
“health hazard” includes ehmlcab
which are carcinogens, toxic or highly
toxic agents. reproductive toxins.
Irritants. corrosives, sensitizars,
hepatotoxin.s. nephrotoxins,
neu.-otoxins. agents which act on the
hematopoienc system, and agents which
damage the lungs. skin, eyes. or mucous
membranes. Further definition of the
terms used above can be found in
Appendix A to 29 CFR 1910.1200.
‘YDLH” or “immediately dangerous to
life or health” means any condition that
poses an immediate threat to life, or
wiuch is likely to result in acute or
immediate severe health effects. This
includes oxygen deficiency conditions.
‘immediate severe health effects”
means any acute clinical sign or
symptom of a serious, exposure-related
reaction manifested withIn 72 hours
after exposure to a hazardous
substance.
“Oxygen deficiency” means that
concentration of oxygen by volume
below which air supplying respiratory
protection must be provided. It musts in
atmospheres where the percentage of
oxygen by volume is less than 19.3
percent oxygen.
Site safety and health office,” means
the individual located on a hazardous
waste site who is responsible to the
employer and has the authority and
knowledge necessary to implement the
site safety and health plan and verify
compliance with applicable safety and
health requirements.
(b) er oL qygements—(l) Safety
and health prosrom. E ilmpioyer
slrall develop and implement a safety
end health program for Its employ...
Involved In hazardous waste operations.
The program, as a minimum, shall
‘incorporate the requirements of this
section and be provided, as appropriate.
to any subcontractor or its
representative who will be Involved
with the hazardous waste operation.
The program shall be designed to
identify, evaluate. and control safety
and health hazards and provide for
emergency response (or hazardous
waste operations,
(2) Siti charactez,zadan and analysis.
Hazardous waste sites shall be
evaluated In accordance with paragraph
(cJ of this section to Identify specific sit.
hazards and to determine the
appropriate safety and health control
procedures needed to protect employees
from the identified hazards.
(3) Site controL Site control
procedures shall be Implemanted In
accordance with paragraph (d) of this
section before clean.up work begin, to
control employee exposure to h-.’ ’dous
substances.
(4) Training. Initial or refresher or
review tr tMiI g meeting the
requirements of paragraph (eJ of this
section shell be provided to employees
before they are permitted to engage In
hazardous waste operations that could
expose them to hazardous ,ubstan
safety. or health hazards.
(5) j%f di a! sur.’e,iance. Medical
surveillance shall be provided in
accordance with paragraph (I) of this
section for employees exposed or
potentially exposed to hazardous
substances or health hazards or who
wear respirators.
(6) £ngineenng controls. work
practices and personci protective
equipment, Engineering controls. work
practices, personal protective
equipment, or a combination of thee.
shall be implemented in accordance
with paragraph (g) of this section to
protect employees from exposure to
hazardous substances and health
hazards.
(7) Monitonng. Monitoring shall be
performed in accordance with
paragraph (h) of this section to assure
proper selection of engineering controls,
work practice, and personal protective
equipment so that employees are not
exposed to levels which exceed
established permissible exposure limits
for hazardous substances.
(8) iafonnauonalprvgruni. Employees.
contractors, and subcontractors or their
representative shall be informed of the
degree and nature of safety and health
hazards specific to the work site by
using the safety and health plan audi
in paragraph (I) of this section.
(9) Matenal handling. Hazardous
substances and contaminated soIls,
liquids, and other residue, shall be
handled. transported. labeled, and
disposed of In accordance with
paragraph (J) of this section.
(10) Decontamination. Procedures (or
all phases of decontamination shall be
developed and implemented lit
accordance with paragraph (It) of this
section.
(11) Eme gency response. Emergency
response to hazardous waste operation
Incidents shall be conducted In’
accordance with paragraph (1) of this
section.
(12 ) il!wziination. Areas accessibl, to
employees shall be lighted In
accordance with the requirements of
paragraph (in) of this section.
(13) SanitatIon. Facilitie, for employ..
sanitation shall be provided In
accor’ 4 . ’ ” with paragraph (n) of this
section.
(14) Site excavation. Site excavations
created during hutIaI sits preparation or
during hazardous waste operations shall
be shored or sloped to prevent
accidental collapse and conducted In
accordance with Subpart P of 29 R
Part 1925.
(is) Carnracsei’s and sub-conlnjcton .
An employer who retain, coa actor
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Federal Reçster / Vol. 51. No. 44 / Friday. December 19. 1968 I Rule, and Requlatlons
6G5
sub.contractor service, (or work in
hazardous waste operations shall inform
those contractors. sub-contractor,. or
their representatives of any potential
lire. exolosion. health or other safety
hazards of the hazardous waste
operation that have been identified by
the employer.
(cp Sac chamctertzouon and analysis .
(1) A preliminary evaluation of a sites
charactenstics shall be performed prior
to site entry by a trained person to aid
in the selection of appropriate employee
protection methods prior to site sisny.
During site entry, a more detailed
evaluation of the sites speafin
characteristics shall be performed by a
trained person to further identify
existing site hazards and to further aid
in the selection of the appropriate
engineering controls and personal
protective equipment (or the tasks to be
performed.
(2) All suspected conditions that may
pose inhalation or skin absorption
hazards that are immediately dangerous
to life or health (IDLHJ or other
conditions that may cause death or
serious harm shall be identified during
the preliminary survey and evaluated
during the detailed survey. F,amples of
such hazards indude. but are not limited
to. conflned space entry. potentially
explosive or flammable situation ,.
visible vapor clouds. or areu where
biological indicators such as dead
animals or vegetation are located.
(3) Thilollnwtnijnloruiation the
extent available shall ibtaine4 y
the y r.p pr to alIo
emolovees toeiter a sitet
(I) Location and approximate size of
the site.
(ii) Description of the response
activity and/or the job task to be
performed.
(iii) Duration of the planned employee
activity.
(iv) Site topography.
(vJ Site accessibility by air and. roads.
(vi) Pathways for hazardous
substance dispersion.
(vii) Present status and capabilities of
emergency response fsams that would
provide assistance to an-Site employees
at the tune of an emor cy.
(viii) Hazardous. subv.,w .,. g
health hazards involved or expected at
the site and their chemical and physical
properties.
(4) Personal protective equipment
(PPEJ shall be provided and used during
initial sue entry in accordance with the
following requirementm
(i) llased upon the results of the
preliminary site evaluation. an ensemble
of PPE shall be selected and used during
initial site entry which will provide
protection to a level of exposur, below
established permissible exposure lImits
for known or suspected hazardous
substances and health hazards and will
provide protection against other known
and suspected hazards identified during
the preliminary site evaluation.
(iii An esca e self-contained
breathrnq p aratui 1 at-least five
minutee duration shall be carried by
emoloyees _ orjcept available aUh
immediate work station if positive-
p es.ure self-contained breathing
apparatus is not used as part of the
ëit ensem6la.
(iii th llmina a don
does ngi .producejuif Iciern information
to tdenufy thehazard.
1i iards of the sit. an ensemble of Level
8 PPE shall be provided as ____
irtnection and direct reading
instruments shall be earned for
identifying IDLH conditions. (See
AppendIx 8 for guideline, on Level 8
protective equipment.)
(iv) Once the hazards of the site have
been positively Identified, the
appropriate PPE shall be selected and
used in accordance with paragraph (gJ
of this section.
(5) The following monitoring shall be
conducted during site entry when the
site evaluation produces information
which show the potential for fo&?tivg
radiation or IDLH conditions, or when
the site Information is not su ent to
rule out these possible conditloar
(I) Monitoring for hazardous levels of
jOflt i!I radiation.
(U) Monitoring the air with
appropriate test equipment for (D I II and
other conditions that may cause death
or serious harm (combustibl. or
explosive atmosphere.. oxyguu
defide cy. toxic substances.)
( lii) Visually observe for signs of
actual or potential IDLH or other
dangerous conditions.
(6) Once the presence and
concentrations of specific hazardous
substances and health hazards have
been established, the risks associated
with these substanc.s shall be
Identified. Employees who will be
working on the site shall be Informed of
any risks that have been Identified.
Pdot.. —Rlaks to consider include, but at,
not limited tet
Exposure. exceedIng the
Threshold Limit Values (‘rLVs) , Permissible
Exposure Limits (P .sl. or Recommmded
Ezp ,,. Limits (R I
U ( Ccncsnoations.
Potsntial Skin Absorption and !ri1tsdon
Sources.
Potential Eye tmtatloa Sources.
Explosion Suasittvtty sad Flanmabtllty
Ranges.
(7) Any information concarning.the
chemicaL physicaL and toxicologic
properties of each substance known or
expected to be present on site that is
available to the employer and relevant
to the duties en employee is expected to
perform shall be made available to all
employee, prior to the commencement
of their work activities.
(8) An ongoing air monitoring oro m
in accordance with paragraph ( h) of iE i
section shall be implemented alter site
characterization has determined the site
is safe (or the stan-up of operations.
(d) Site controL (1) A site control
program (or preventing conL. th .don of
employee, shall be developed during the
planning stages of a hazardous waste
operation dean-up.
(2) The site control program shall, as a
minimum. includet A site ma site work
zones: the use of a buddy syatem’; site
communicatIons: the standard operating
procedures or sale work practices: and.
identification of nearest medical
assistance.
(e) Training. (1) All employees (such
as equipment operators and general
laborers) exposed to hazardous
substances, health hazards, or safety
hazards shall be thoroughly trained In
the (ollowingi
(I) Names of personnel and alternate.
responsible for site safety and health:
(ii) Safety . health and other hazards
present on the sits:
(iii) Us. of PPE
(iv ) Work practices by which the
employee can mi,eu,,n, . risks from
hazards:
(v) Safe use of engineering controls
and equipment on the sitai
(vi) Medical surveillance requirements
including recognition of symptoms and
signs which might indicate over
exposure to hazards: and
(vii) Paragraphs (Cl through ( IC) of the
site safety and health plan eat forth In
paragraph (lJ(2)(l) of this section.
(2) All employees shall at the tim . of
Job assignment receive a , , l..L.u 1 of 40
hours of Initial nstrucdoi Fthe site.
aid a , , ‘“urn of three dais of actual )
field ex gpceunder the direct
supervision ,pf.. t alned. ex etienced.)
superviso . Workers who may be
exposed to unique or special hazards
shall be provided additional tr.fr 4 g
The level of training provided shall be
consistent with the employee’s Job
function and responsibilities.
(3) On-site management and
supervisors directly responsible far or
who supervis, employees engaged In
hazardous waste operations shall
receive training as provided In
paragraph (e)(1) and (e)(2) of this section
and at least eight additional hours of
specialized training on managing such
operation.. at the tune of job suignment.
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45666 Federal Register / vol. 51. No. 244 I Fnday. December 19. 1986 I Rules and Requlations
(4 l Trainers shall have received a
level of training higher than and
including the sub,eci matter of the level
of instruction that they are providing.
(51 Employees shall not participate in
field activitie, until they have been
trained to a level required by their job
(unction and responsibility.
(81 Employee, and supervisors that
have received and successfully
completed this training and field
exoerience specifled in paragraphs
(ej(1l. (e)(2l and (e)(3) of this section
shall be certified by their instructor as
having completed the necessary
training. Any person who has not been
so certified or meets the reqwrements of
paragraph (efil) of this section shall be
prohibited from engaging in hazardous
waste operations after March 18, 1967.
(7) Employees who are responsible for
responding to hazardous emergency
situations that may expose them to
hazardous substances shall be trained in
how to respond to expected
emergencies.
(8) Employees specified in paragraph
(e)(1P and managers specified in
paragraph (e)(3p of this section shall
receive bight hours of refresher tiainini
annually on the items specified in
paragraph (eu) of this section and other
relevant topics.
(9) Employers who can show by an
employees work experienc, and/or
training that the employee has had
initial training equivalent to that training
required in paragraphs (e)(1). (e)(2 ). and
(e )(3) of this section shall be considered
as meeting the initial training
requirements of those paragraphs.
Equivalent training includes the training
that existing employees might have
already received (rain actual, on-site
experience.
(fl Medico! survesUance—41)
E.nployees cover,d A medical
surveillance program shall be instituted
by the employer for
(i) all employees who are or may be
exposed to hazardous substances or
health hazards at or above the
established permissibl, exposure limits
(or these substances. without regard to
the use of respirators, for 30 days or
more a year. or
(ii) all employees who wear a
respirator (or 30 days or mars a year. or
(iii) HAZMAT employees specified In
paragraph (l )(4J of this section while
engaged in hazardous waste operations
covered by this section.
(iv) The employer shall make medical
examinations or consultations available
to all employees who may have been
exposed in an emergency situation to
hazardous substances at concentrations
above the permissible exposure limits.
(2) Frequency of medical
eramtnanonz and consultations.
Med.cal examinations end consulLailons
shall also be made available by the
employer to each employee covered
under paragraph (0(1 ) of this section on
the Following schedules:
(i) Prior to assignment or for
employees covered on the effective date
of this standard as specified in
paragraph (pJ of this section.
(ii) At least once every twelve months
(or each employee covered.
(iii) At termination of employment or
reassignment to an area where the
employee would not be covered it the
employee has not had an examination
within the last six months.
(iv) As soon as possible. upon
notification by an employee either that
the employee has developed signs or
symptoms indicating possible
overexposure to hazardous substances
or health hazards
(v) At more frequent times. if the
examining physician determines that an
increased frequency of examination is
medically necessary.
(3) Content of medico! examinations
and consultations, (I) Medical
examination. required by paragraph
(fl(Z ) of this section shall includ. a
medical and work history with special
emphasis on symptoms related to the
handling of hazardous substances and
to fitness for duty including the ability to
wear any required PPE under conditions
(1... temperature extremes) that may be
expected at the work site.
(ii) The content of medical
examinations or consultations made
available to employees pursuant to
paragraph (I) shall be determined by the
examining physician.
(4J Examination by a physician and
costs. All medical eir.iin tIon. and
procedures shall be performed by or
under the supervision of a licensed
physician, and shall be provided without
cost to the employee. without loss of
pay. and at a reuonable time and place.
(5) Information provided roth.
physician. The employer shall provide
the following information to the
examining physiclain
(I) A copy of this standard and Its
appendices.
(I I) A description of the employees
duties as they relate to the employees
exposures.
(iii) The employees exposure levels or
anticipated exposure levels.
(iv) A description of any personal
protective equipment used or to be used.
and
(v) Information from previous medical
examinations of the employee which is
not readily avsilabl. to the e,’ mtn g
physician.
(6) Phys:c:ans written opinion. ( I) T
emoloyer shall obtain and furnish the
emoloyce with a copy of a written
op;nion from the examining physician
containing the (ollowinç
(A) The results of the medical
examination and tests.
(9) The physician s opinion as to
whether the employee has any detected
medical conditions which would place
the employee at increased risk of
material Impairment of the employees
health.
(C) The physicians recommended
limitations upon the employees assigned
work.
(D) A statement that the employee has
been informed by the physician of the
results of the medical examination and
any medical conditions wnich require
further examination or treatment.
(ii) The written opinion obtained by
the employer shall not reveal specific
lindinge or diagnoses unrelated to
occupational exposure.
(7) Recoxdkeeprng. (i) An accurate
record of the medical surveillance
required by paragraph (fl(1) of this.
section shall be retained. This tec d
shall be retained for the period specified
and meet the criteria of 20 R 1910.20.
(Li) The record required in paragraph
(1fl5)(iJ of this section shall include at
least the following informattoiw
(A) The name and social security
number of the employem
(B) Physicians written opinions:
(C) Any employee medical complaints
related to exposure to hazardous
substances:
(0) A copy of the information which
shall be provided to the e,r Irniiuig
physician by the employer, with the
exception of the standard and Its
appendices.
(iii) The employer shall ensure that
this record Is retained for the period
specified In 20 CFR 1910.30.
(g) Engineering centrals. work
practices. and peavona! protective
equipment/br employee pratectlon .—(1)
Engineering controls. work practices
and PPE (I) Engineering controls and
work practices shall be instituted to
reduce and maintain employee exposure
to or below the permissible exposure
limits of those hazardous substances
regulated by 29 R Put 1910. Subpart
Z. except to the extant that such
controls and practices are not feasible.
Not. —Ençneenn controls which may be
feasible are th. use of pressurized cab. or
control booths on equipment. andlor the use
of remotely operated maiensl k. idftng
equipment. Work practices which may be
feasible ore removing all none.seadal
employee. ham potential exposure during
opening of drums. wetting down dust,
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Federal Reçater I VoL 51. No. 244 I Friday. December 19. 1986 I Rule, and Requlations
45667
..prriiliunl end Ioc iiin employees upwind of
pu,.ibi hezerds.
(ii) Whenever engineering controls
and work practices age not feasible. PPE
lhdll be used to protect employees to
reduce exposure to below established
permissible exposure limits.
(iii ) The employer shall not implement
a schedule of employee rotation as a
means of compliance with permissible
eiposure limit,.
(2) Engineering controls, work
prucuces. and personal protective
equipment for substonces not regulated
in Subpart 1 An appropriate
combination of engineering controls.
work practices. and personal protective
equipment shall be established to
reduce and maintain employee exposure
to or below the established permissible
exposure limit for hazardous substance,
not regulated by CFR Part 1910.
Subpart Z and health hazards.
(3) Personal protective equipment
selection. Ii) Personal protective
equipment IPPE) shall be selected and
used which will protect employees from
the hazards and potential hazards they
are likely to encounter as identified
during the site characterization and
analysis.
(ii) Personal protective equipment
selection shall be based on an
evaluation of the performance
characteristics of the PPE relatIve to the
requirements and limitations of the site.
the task-specific conditions and
duratIon, and the hazards and potential
hazards identified at the site.
(iii) Positive pressure seIf.coniained
breathing apparatus. or positive
pressure air.line respirators equipped
with an escape air supply shall be used
in IDU4 conditions.
(iv ) .Totally.encapsulatlng chemical
protective suiti (Level A protection)
shall be used In conditions where
contact of the skin by the hazardous
‘ubstance may result in an IDLH
situation.
Iv ) The level of protection provided by
PPE selection shall be increased when
additional information or site conditions
show thai increased protection Is
necessary to reduce employee exposure
below established permissible exposure
limits for hazardous substance and
health hazards. (See Appendix B (or
guidance on selecting PPE ensembles.)
Note—fl, level of protection pray Wed
m v be decrn..d when additional
inIormauon or liii conditions show that
decressed protection w il not result in
hazardous . posum to employees.
(vii Personal protective equipment
shall be selected and used to meet the
requirement, of 9 CFR Part 1910.
Subpart l. and additional requirements
specified in this section.
(41 T ’utally.encopsulaung chemical
protective suits. (ii Totally-
encapsulating suit materials used for
Level A protection shall protect
employees from the particular hazards
which are identified during site
characterization and analysis.
(ii) Totally-encapsulating suits shall
be capable of mauitainutg positive air
pressure. (See Appendix A.)
(iii) Totally-encapsulating iuits shall
be capable of preventing inward test gas
leakage of more than 0.5 percent. (See
Appendix A.)
(51 Personal protective equipment
(PPE) program. A personal protective
equipment program shall be established
for hazardous waste operations. The
PPE program shall address the following
eletnentai
(i) Site hazards.
(i;) PPE selection.
(iii ) PPE use.
(iv) Work mission duration.
(v ) PPE maintenance and storage.
(vi) PPE decontamination.
(vii) PPE training and proper fitting.
(viii) PPE donning and doffing
procedures.
(ix) PPE inspection.
(x) PPE in-use monitoring.
(xi) Evaluation of the effectiveness of
the PPE program. and
(xii) Limitations dining temperature
extremes.
(h) Monitoring. (1) AIr monitoring
shall be used to identify and quantify
airborn. levels of hazardous substance.
in order to determine th. appropriate
level of employee protection needed on
site.
(2) As a first step. sit monitoring shall
be conducted to identify any EDLH and
other dangerous situations, such as the
presence of fleuiin.ble atmospheres.
oxygen-deficient environments. toxic
levels of airborne contaminants, and
radioactive materials.
(3) As a minimum, periodic monitoring
shall be conducted whem
(i) Work begins on a different portion
of the Site.
(ii) Contaminants other than those
previously identified ate being handled.
(iii) A different type of operation Is
initiated (e.g.. drum opening as opposed
to exploratory wail drilling.)
(iv) Employees are handling leaking
drama or containers or working in areas
with obvious liquid contamination (e.g..
a spill or lagoon.)
(4) High-risk employees. e.g.. those
closest tothe source of contaminant
generation. shall receive personal
monitoring sufficient to characterize
employee exposure.
(I) Informational prvgrcms—(1)
C. neraL As part of the safety and —
health program required in paragraph
(bJ(1) of this section. the employer shall
develop and implement a site safety and
health plan meeting the reqwreuienta of
paragraph (i)(2 ) of this section for seth
hazardous waste operation.
(2) Site safety end health plan. The
site safely and health plan. which shall
be available on the site (or inspection by
employees. their designated
representatives. and OSHA personneL
shall address the safety and health
hazards of each phase of site openUon
and include the requirement. and
procedures (or employee protection.
(i) The site safety and health plan, as
a minimum, shall address the followtnç
(A) Names of key personnel and
alternates responsible for site safety and
health and appointment of a site safety
and health officer.
(B) A safety and health risk analysis
(or each site task and operation.
(C) Employee training assignments.
(D I Personal protective equipment to
be used by employees for each of the
site tasks and operations being
conducted.
(El Medical surveillance requirements.
(F) Frequency and types of air
monitoring. personnel monitoring. and
environmental sampling techniques and
instrumentation to be used. Methods of
maintenance and calibration of
monitoring and sampling equipment to
be used.
(C) Site control measures.
(Hi Decontamination procedures.
(I) Site’s standard operating
procedures.
(J) A contingency plan meeting the
requirements of paragraphs (1)(1) and
( 11(2) of this section for safe sad
effective responses to emergence.
including the necessary PPE sad other
equipment.
(K) Confined space entry procedures.
(ii) Pre-entry briefings shall be held
prior to initiating any site activity and at
such other times as necessary to ensure
that employees are apprised of the site
safety and health plan and that Ills
being followed.
(iii) Inspections shall be conducted by
the site safety and health officer or. in
the absence of that individuaL soother
individual acting on behalf of the
employer as necessary to determine the
effectiveness of the site safety and
health plan. Any deficiencies in the
effectiveness of the site safety and
health plan shall be corrected by the
employer.
(I) Handling drums and contoinete—
(1) General. (I) Drums and containers
used during the dean.up shall meet the
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43668 Federal Re ister / Vol 51. No 244 1 Fnday. December 19. 1988 / Rules and Regulations
ipproprlaie DOT. OSHA. and EPA
reuulalion. for the %vasies that they
r.oni iuti.
(ii) Drums and containers shall ho
nspectid and their integrity shall be
.assured prior to being moved. Drums or
containers that cannot be inspected
!,eture being moved because of
•riaccessible storage condition, shall be
moved to an .sccessible location and
inspected prior to further handling.
(iii) Unlabeled drums and containers
shall be considered to contain
hazardous substances and handled
accordingly until the contents are
positively identified and labeled.
(: ) Site operations shall be organized
to minimize the amount of drum or
container movement.
(vJ Prior to movement of drums or
containers, all employees exposed to the
transfer operation shall be warned of
the potential hazards associated with
the contents of the drums or containers.
(vi) U.S. Department of Transportation
specified salvage drums or container,
and suitable quantities of proper
absorbent shall be kept available and
used in areas wnere spiiis, leaks, or
ruoiures may occur.
(vii) Where major spills may occur, a
spill containment program shell be
implemented to contain and isolate the
entire volume of the hazardous
substance being transferred.
(viii) Drums and containers that
cannot be moved without rupture.
leakage. or spillage shall be emptied into
a sound container using a device
classified for the material being
transferred.
(ix) A ground-penetrating system or
other type of detection system or device
shall be used to estimate the location
and deoth of drums or containers,
(xp Soil or covering material shall be
removed with caution to prevent drum
or container rupture.
(ui Fire extinguishing equipment
meeting the requirements of 29 CFR Part
1910. Subpart L shall be on hand and
ready for use to control small fire..
(2) Ooening drums and containers .
The following procedure. shall be
followed In areas where drum. or
containers are being opened:
(I) Where an airlin, respirator system
is used. conneenons to the bank of air
cylinders shall be protected (rum
contamination and the entire system
shall be protected from physical
damage.
( Ii) Employees not actually involved In
opening drums or containers shall be
kept a safe distanc. from the drums or
containers being opened.
(iii) If employees must work near or
adjacent to drums or containers being
opened. a suitable shield that doe . not
in:erfere with the work operation shall
be placed between the employee and
the drums or containers being opened to
protect the employee in case of
accidental explosion.
(iv) Cuni:ois for drum or container
openu ; equipment, monitoring
equipment. and fire suppression
equipment snaIl be located behind the
explosion.resistant barrier.
(v) Material handling equipment and
hand tools shall be of the type to
prevent sources of ignition.
(vi) Drums and containers shall be
opened in such a manner that excess
interior pressure will be safely relieved.
If pressure cannot be relieved from a
remote location. appropriate shielding
shall be placed between the employee
and the drums or containers to reduce
the risk of employee injury.
(vii) Employees shall not stand upon
or wont from drums or containers.
(3) E!ectrzca! material handling
equipment. Electrical material handthig
equipment used to transfer drums and
containers shath
(I) Be positioned and operated to
minimize sources of ignition related to
the equipment from igniting vapors
released from ruptured drums or
containers. or
(ii) Meet the requirements of 29 CFR
1910.307 and be of the appropriate
electrical classification for the materials
being handled.
(4) Radioactive wastes, Drums and
cont:alners containing radioactive
waste, shall not be handled until such
time as their hazard to employees Is
properly assessed.
(5) Shock sensitive wastes.
Caudom Shipping of shock sensitive
wastes may be prohlblt.d under U.S
Dsp.ntmsni of Triasiportadon regulations,
Employer, and their slapperu should refer to
49 R i 3.21 and U JQ
As a minimum, the following special
precaunons shall be taken when drums
and containers containing or suspected
of containing shock-sensitIve wastes are
handled:
(I) All non-essential employees shall
be evacuated from the area of transfer.
(ii) Material handling equipment shall
be provided with explosive cont.im,i.nt
devices or protective shields to protect
equipment operators from exploding
containers.
(iii) An employee alarm system
capable of being perceived above
surrounding light and noise conditions
shall be used to signal the
commencement and completion of
explosive waste handling activities.
(iv) Continuous communications (Le.,
portable radios, hand signals.
telephones, as appropriate) shall be
maintained between the employee
char e of the immediate handling
arid the site safety officer or comm .
post until such time as the handling
operation is completed. Cainmunicatlon
eoutpment or methods that could cause
sizock sensitive materials to explode
snail not be used.
(v) Drums and containers under
pressure, as evidenced by bulging or
swelling, shall not be moved untIl such
time as the cause for excess pressure is
determined and appropriate
containment procedures have been
implemented to protect employee. from
explosive relief of the drum,
(vi) Drums and containers cuntalnlng
p.sckaged laboratory wastes shall be
considered to contain shock-sensitive or
explosive materials until they hay, been
characterized.
(6) Labomtory waste nacks . In
addition to the requirements of
paragraph ( f l( S) of this section. the
following precautions shall be taken, as
a minimum, in handling laboratory
waste packs (lab packs):
(i) Lab packs shall be opened only
when necessary and then only by an
individual knowledgeable in the
inspection, classification, and
segregation of the containers within iii.
pack according the hazards of the
wastes.
(ii) If mystalline material Is noted
any container, the contents shall be
handled as a shock-sensitive waste a...
the contents are Identified,
( ?)SamplinR drums and containers .
Sampling of containers and drums shall
be done in accordance with a sampling
procedure which is part of the site
safety and health plan developed for
and available to employee. and others
at the specific worksite.
(8) Shipping and b’anspoit (1) Drums
and containers shall be identified and
classified prior to packaging for
shipment,
(ii) Drum or container staging areas
shall be kept to the mim !Ium number
necessary to safely Identify and classify
materials and prepare them for
transport.
(iii) Staging areas shall be provided
with adequate access and egress route..
(Iv) BtiIk4 g of hazardous wastes shall
be permitted only after a thorough
characterization of th, materials has
been completed.
(9) Tank and vauitprv,asdure,. (I)
Tanks and vaults con’.’ning hazardous
substances shall be handled In a man,iar
similar to that for drums and containers.
taking into consideration the size of the
tank or vault.
(ii) Appropriate tank or vault entry
procedures meeting paragraph
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Federal Register / Vol . 51. No. :44/Friday. December 19. 1986 I Rulei and Regulations
45669
(i)f)(i)(K) of this section shall be
followed whenever employees must
enter a tank or vault.
(k) Oecontam,naLion. (1) A
decontamination procedure shall be
developed. communicated to employees
and implemented before any employees
or eqwpmeflt may enter areas on site
where po’enual for exposure to
hazardous substances exists.
(2) Standard opersdng procedures
shall be developed to snuumaze
employee contact with hazardous
substances or with equipment that has
contacted hazardous substances.
(3 Decontai ii .tzon shall be
performed in areas hat will miimnk.a
the exposure of uncontaminated
employees or equipment to
contaminated employees or equipment.
(4) All employees leaving a
contaminated area shall be
appropnately deccntamnteik all
clothing and equipment leaving a
contaminated area shall be
appropriately disposed of or
decontaminated.
(5) Decontamznatloa procedure. shall
be monitored by the sita safety and
health officer to determine their
effectiveness. When such procedures
axe found to be ineffective. appropriate
steps shall be taken to correct any
deficiencies.
(8) All equipment and solvents used
for decont.m,i ,ation shall be
decontaminated or disposed of properly .
(7) Protective clothing and equipment
shall be decoutai 4i,.ted. cleaned.
laundered. maintained or replaced u
needed to maintain their effectiveness.
(8) Impermeable protective dothing
which contacts or is likely to have
contacted hazardous substance, shall
be decontammated before being
removed by the employee.
(9) Employees whose non-
Impermeable clothing becomes wetted
with hazardous substances shall
immediately remove that clothing and
proceed to shower. The clothing shall be
disposed of or decontai ,iiiintsd before It
Is removed from the work ..
(10) Unauthorized employee, shall not
remove protective clothing or equipment
from eu.n e rooms.
(11) Commercial laundries or ceasing
establishments that d.contiml. ..t.
protective clothing or equipment shall
be informed of the potentially harnifel
effects of exposures to hazardous
substance..
(12) Where the d.cont.minaHosi
procedure indicates a need for showers
and dtaiige rooms. they shall be
provided and meet the requirements of
R 1810.141.
(U Emergency respans.—(1) GeneraL
(i) .‘kn emergency response plan shall be
developed and implemented to handle
anticipated on-sits emergencies prior to
the commencement of hazardous waste
operations. Emergency response
activities to all other hazardous waste
operations shall follow an emergency
response plan meeting the requirements
of this section.
(ii) Elements of an emergency
response plan. The employer shall
develop an emergency response plan for
on-sate and off.site emergencies which
shall address. u a m.nImu , the
followingi
(A) Pre-emergency planning.
(B) Personnel roles. line, of authority.
aining. and communication.
(C) Emergency recognition and
prevention.
(0) Sal. distances and places of
refuge.
(El Site security and controL
(F) Evacuation rout.. and
procedure..
(C) Decons.nin.tlon.
(H) Emergency medical tres ent
end first aid.
(I) Emergency alerting and response
procedure..
(J) Critique of response and follow-
up.
(K) PPE and emergency equipment.
(2) On-s,ta .meayency,espona.—4i)
Trinning. Tr.iniiig for site emergency
response shall be conducted In
accordance with paragraph (a) of this
section.
(U) Procedures for handling sits
emergency incidents. (A) In addition to
the elements far the emergency response
plan required in paragraph (lJ(1J(lI)
above, the following shall be
Included for site emergency response
planai
(1) Site topography, layout. end
prevailing weather conditions.
(2) Procadurse for reporting incidents
to local, state. and federal gjv “tai
agencies.
(B) The site emergency response plan
shall be. separate section of the Sit,
Safety and Health Plan.
(C) Th. site emergency response plan
shall be compatible and Integrited with
the disaster. fir . and/or emergency
response plans of local, stats. and
federal agencies.
(D) The site emergency respons. plan
shall be rehaarssd regularly as part of
the overall trainhig program for site
operations.
(E) The site emergency response plan
shall be reviewed periodically and, a.
necessary, be amended to keep It
current with new or Fh.Iigiflg site
conditions or information.
(F) An employee alarm system shall
be installed in accordance with C ’R
1910.185 to notify employee, of an on-
site emergency situation, to stop work
activutes if necessary, to lower
background noise in order to speed —
commurucation. and to begin emergency
procedure,.
(C) Based upon the information
available at time of the emergency. the
employer shad evaluate the incident and
the site response capabilities and
proceed with th. appropriate steps to
implement the on-site emergency
response plan.
(3) Off-site emergency respons. —(lJ
Training. Training (or handling
emergency responses involving
hazardous substances shall be
conducted on a monthly basis and shall
be at least 24 hours annually. The
ueuunq snail include as a minimum
recogrution of hazards, selection, care.
and use of personal protective
equipment and safe operating
procedures to be used at the incident
scene.
(U) Procaduxes for handling off-sat.
emergency incident.s. (A) The senior
officer responding to an incident
involving a hazardoua substance or
waste shall establish an Incident
Command System (ICS ). All emergency
responders and their communications
shall be coordinated and controlled
through the individual in charge of the
‘Cs.
(B) The individual In charge of the ICS
shall Identify, to the extent possible. all
hazardous substances or conditions
present.
(C) Based on the hazardous
substances and/or conditions present
the individual to charge of the ICS shall
implement appropriate emergency
operations, and assure that the personal
protective equipment worn is
appropriat. for the hazards to be
encountered. However, personal
protective equipment shall meet, at a
m,rnm , the cittana contained in
CFR 19 10. 158(e) when worn while
performing fire fighting operations
beyond the Incipient stage.
(I D) Self-contaIned breathing
apparatus shall be worn at all times
during emergency operations Involving
exposure to hazardous substances or
health hazards. After October18. 1968
only positive pressure self-contained
respirators shall be used.
(E) The individual In charge of the ICS
shall limit the number of emergency
response personnel at the emergency
site to those who s te actively
performing emergency operations.
However, operations in hazardous areas
shall be performed using the buddy
system in group. of two or more.
(F) Back-up personnel shall be
standing by with equipment ready to
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45670 FederaL Reqister I vol. 51. No. 214 I Friday. December 19. 1986 I Rules and Requlation,
,rovide assistance or rescue. Qualified
basic tile support personnel. as a
minimum. shall also be standing by with
medical equ:pment and transportation
ciipability.
(C) The individuaL in charge of the lCS
shall designate a safety officer, who is
knowledgeable in lire fighting or rescue
operations and hazardous substance
handling procedures. with specific
resoonsib.lity to identify and evaluate
hazards and to provide direction with
respect to the safety of operations (or
the emergency at hand.
(H) When activities are judged by the
safety officer to be unsafe and/or to
un olve an imminent danger condition.
the safety officer shall have the
authority to alter, suspend. or terminate
those activities. The safety officer shall
immediately inform the individual in
charge of the ICS of any actions taken to
correct these hazards at an emergency
scene.
(I) After emergency ooeratlons have
terminated, the individual in charge of
the ICS shall implement appropriate
decontaminanon procedure,,
(4) Hazanious materials teams
(I IAZWA 77. (i) Employees who are
members of the I{ALMAT team.
employees designated by the employer
to plug, patch or otherwise temporarily
control or stop leaks from container,
which hold hazardous substances or
health hazards shall be given training in
accordance with paragraph (lJ(3J of this
section that includes the care and use of
chemical protective clothing and
procedures to be followed when
working on leaking drums, container,.
tanks, or bulk transport vehicles.
(ii) Members of HAZMAT turns shall
receive an annual physical e7 mi!L.don
by a licensed physician and be provided
medical surveillance as required In
paragraph (I) of this section.
(iii) Personal protective clothing and
equipment to be used by HAZMAT team
members shall meet the requirements of
paragraph (gJ of this section.
(iv) Approved self’contained
compressed air breathing apparatus may
be used with approved cyIlnd. , from
other approved aeU ’contained
compressed air breathing apparatus
provided that such cylinder, are of the
same capacity and pressure rating. All
compressed air cylinders used with sell-
contained breathing apparatus shall
meet U.S. Depar ent of Transportation
and National Institute for Occupational
Safety and Health ontens.
(5) Post-emerency response
operations. Upon completion of the
emergency response. if It l determined
that It is necessary to remove hazardous
substances, health hazards and
materials contaminated with them such
as contaminated soil or other elements
of the natural environment, then such
operations shall meet all the
requirements of paragraphs (b) through
(nI of this section.
(m) lilumsnot,on. Work areas shall be
lighted to not less than the minimum
illumination intensitIes lIsted in Table
H—102.1 while any work is in progress:
Tas:. H-iOZI.—Mi,diuuu lu.UMINAnOP.
iNrENamis IN FO0T.CANO( 53
I I- uu I
3 G u i -
2 __ !.ca,. .W u
I S W0
ISW’ SW (SW
S - — _... u.. SWSW _.__ SW
I .... T , ,iv W
‘SW _ . SW 01iS
I UI- S C SW
• . SW SW
- 5.VSW C — SW
OS (CS SW -_
‘0 - 5 5W isI. —— SW
Ca - —-
I OWICS S . S 55W
• SW CS SW S
‘ SW OSWU
(nJ Sanitation at temporary
ivorkplaces—(1) Potable water. (I) An
adequate supply of potable water shall
be provided on the site.
(ii) Portable containers used to
dispense drinking water shall be
capable of being tightly dosed, and
equipped with a tap. Water shall not be
dipped from containers.
(iii) Any container used to diatribute
drinking water shall be clearly marked
as to the nature of its contents and not
used for any other purpose.
(Iv) Wher, single service cup. (to be
used but once) are supplied, both a
sanitary container for the unused cups
and a receptacle for disposing of the
used cups shall be provided.
(2) Vonpotabie water. (I) Outlets for
nonpotable water, suck u water for
Industrial or firefighting purposes shall
be Identified to Indicate clearly that the
water Lu unsafe and is tot to be used for
drinking, washing. or cooking purposes.
( II) There shall be no moss-
connection, open or potentiaL between a
system furnishing potable water and a
system furnishing noapotabl. water.
(3) Toilets foaiities. (I) Toilets shall
be provided for employees according to
Table H—102.2.
Tat,I H-iO2.2.—Tou., i ’ Faai,mas
I s*so
l
OWl -— OWl I oi.
TIaLE p4- tO2, —T i y Faciune
Continued
01
i SWM, S SI ( u
inu ZOO
., - On. C SW SW I COW Ca
(ii) Under temporary field conditions.
provisions shall be made to assure not
less than one toilet facility is available.
(iii) Hazardous waste sites, not
provided with a sanitary sewer. shall be
provided with the following toilet
facilities unLess prohibited by local
codes:
(A) Privies:
(B) Chemical toilets:
(C) Recirculating toilets: or
CD) Combustion toilets.
(iv) The requirements of this
paragraph for sanitation facilities shall
not apply to mobile mews having
transportation readily available to
nearby toilet facilities.
(4) Food handling. All employees’ food
service facilities and operations shall
meet the applIcable laws, ordinances.
and regulations of the jurisdictions in
woich they are located.
(5) Temporary sleeping quarters.
When temporary sleeping quarters are
provided, they shall be heated.
ventilated. and lIghted.
(6) Washing facih’ties. The employ
shall provide adequate washing
facilities for employees engaged in
operations where hazardous substances
may be harmful to employees. Such
facilities shall be in near proximity to
the worksite. within controlled access
work zones and shall be so equipped as
to enable employees to remove
hazardous substances.
(o) Certain Operations CondUcted
wider the Resource Conserertion and
Recovery Act of 1978 (RCRAJ.
Employers conducting operations
specified in paragraph (gJ(2)(lilJ of this
section shalk
(1) Implement a hazard
communication program meeting the
requirements of 29 CYR l91O.120
(2) Implement a medical surveillance
program meeting the requirements of
paragraph (I) of this sectloiu
(3) Develop and Implement a safety
and health program for employees
involved in hazardous waste operations.
The program shall be designed to
Identify. evaluate and control safety and
health hazards and provide for
emergency response to their facilities for
the purpose of employee prutectlom
(4) Develop and Implement a
decontamination procedure In
accordance with paragraph (k) of this
section. and
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Federal Register I Vol. 51. No. 244 I Friday. December 19. 1 86 I Rules and Requlactons
43671
(Si Develop and implement a training
proqram for employees involved with
hazardous waste operations to enable
.‘jch employee to perform their assigned
duties and functions in a safe and
healthful manner so as not to endanger
themselves or other employees. The
initial training shall be for:; hours and
refresher training shall be for eight
hours annually.
(p I Start op doses—4 1 Training wid
m d,cal pm visions. liunal training and
medical surveillance as specified by
paragraph (ci and (0 of this section shall
be commenced on the effective date of
ihis standard, and be fully implemented
as soon as possible but no later than
March 16. 1987. Employees may
continue in their work assignments until
March 16. 1987 though training and
medical examinations have not been
completed so long as all feasible
training and examinations have been
completed.
(1 So (cry and health program. The
emolover shall develop and implement a
safety and health program as required
by paragraph (bJ(l) of this section as
soon as is teasible and have it
completed and implemented no later
than March 16. 1987.
(3) Eng,neeruig controls, work
practices. and personal protective
equipment. (i) The engineering controls.
work practices and personal protective
equipment required by paragraph (gJ(Z)
of this section shall be implemented as
soon as feasible and implementation
shall be completed no later than March
16. 1987.
(ii) The engineering controls, work
practices and personal protective
equipment required by paragraph (gJ(a)
of this section are existing requirement,
of other OSHA standards and contlmies
to be required from the effective dat. of
this standard.
(4) Site safety and health plan. The
site safety and health plan required by
paragraph (l)(2) of this section shall be
compieted as soon as feasible but no
later than February 16. 1987.
(5) Certain operations conducted
under RC&I. The requirements
specified by paragraph (a) of this section
shall be instituted by March 16. 1987.
(6) Other requirements. Requirements
of this standard which do not have a
separate start-up date and have not
been required by other OSHA standards
shall be carried out from the effective
date of this standard.
(7J .Vew operations. Operations
covered by this section which are
started after March 16. 1987. shall be in
compliance with this section from the
start of their operation.
Appendices to I 1 51O. 15—l4azardoqe W .ste
Operation, and Emergency Response
Nasa—The foiluwin apoendices serve as
,,on manaatorv gusuelines to assist
.a,pwvees and etralor err in cor,!vug ‘ uh
the oppropriole requiremena of : 11 ,3 section.
Appendix A—Personal Protective Equipment
Test M.tboda
Thus aupendia sets forth the non-
mandatory examples of tests which may be
used so evaluate compliance with paragraphs
Ioio.1:ufgI(4l (ii ) and (liii. Other tests and
other challenge agents may be used to
evaluate compliance.
.4. FusIy.Encapsu:au’d Suit Pieuure Test
I 0—Scope
I I Thus practice measures the ability of a
gas tight totally.encapsulauag chemical
protective suit materiaL seams. and dosures
to maintain a flxed positive pressure. The
results of this practice allow the gas tight
integrity of. total.sitc.psulcting chemical
protectiv, suit to be evaluated.
12 Resistance of the suit materials to
permeation, penetration. and degradation by
specific hazardous substances us not
determined by this test method.
.O—Oescnption of Terms
2.1 Totally-encausulated chemical
protective suit (TECP nui)—A fu ll body
garment which is constructed of protective
clothing materials: covers th. wearers torso.
head, arms, and legs: may cover the wearers
hands and feet with tightly attached gloves
and boots: comoletely encloses th. wearer by
itself or in combination with th. wearer’s
respiratory equipment, gloves. and boots.
22 Protective clothing material—Any
material or combination of materials used In
an item of clothing for the purpos, of
isolatuig parts of the body from direct contact
with a potentially hazardous liquid or
gaseous chemicals.
2.3 “Ca. tight—for the purpose of this
practice the limited flow of. gas under
pressure from the inside of a TE suit to
atmosphere at a presatbed pressure and time
intervaL
2.4 “Shall ”—Thls term Indicates a
mandatory requirement.
2.3 “Should ”—Thhs term lndlc.tee a
recommendation or that which I . advised but
not required.
2.5 “Mar—This term Is used to state a
permissive its. or an alternative method to a
specific requirement.
3.O—S .. —s—.y of Practice
3.1 The TECP suit Is visually Inspected
and modified for th. teat. The test apparatus
I. attached to the suit to permit Inflation to
the protest suit mcpa ren pressure for
removal of suit wrinkles and messes. The
pressure Is lowered to the test pressure and
motutored for three minutia. U the pressure
drop is excessive. tha TE suit fads the tests
and is removed from service. Alter leak
location and repair the test Is repeated.
4.o—Requued Supplies
4.1 Source of compressed air.
4.2 Test apparatus for suit testing
including a pressure messurement device
with a sensitivity of at least •‘i inch waler
gauge
1 3 Vent valve closure plugs or sealing
1.4 Soapy water solution and soft brash.
13 Stop watch or appropriate timing
device,
5.0—Safety Prec3utiafls
5.1 Care shall be taken to provid, the
correct pressure safety devices required for
the source of compressed its’ used.
60—Test Procedure
6.1 Prior to each test. she tester shall
perform a visual inspection of the suit. Cinch
the suit for seem integrity by visually
examining the seams and gently pulling on
the seems Ensure that all air supply lose.
fitting,, visor. uppers. and valves are secure
and show no siges of deterioration.
6.1.1 Seal oil the vent valves along with
sny other normal inlet or exhaust points
(such as umbilical air lIne fittings or face
piece openingj with tape or aiher appropriate
mesna (caps. plugs. fixture, etc.). Care should
be exercised in the sealing process not to
damage any of the suit components.
6.1.2 Close all closure assemblies.
61.3 Prepare the suit (or inflation by
providIng an improvised connection point or
the suit for connecting an airline. Attach the
pressure test apparatus 10 the suit to permit
suit inflation from a compressed air sousus
equipped with a pressure indicating regulator.
The leak tighatesa of the pressure test
apparatue should be tasted before and after
each test by closing off the end of the tubing
attached to the suit and auuring a pressure
of three inches cuter gauge (or three minutes
can be maintained. If a component is
removed for the test, that component shall be
replaced and a second test conducted with
another component removed to permit a
complete tests of he ensamble.
6.2.4 The pro-test expansion pressure (A)
and the suit test pressure(S) shall be
supplied by the suit manufacturer but in no
case shall they be less sham A-3 Inches
water gauge and 8—2 inches watm ’ gauge,
The ending suit pressure (C) shall be no Ieee
than 80% (fl) of the test pressure ( D l i Le., the
pressure drop shall not exceed % (¼) of the
test pressure (81.
6.1.3 Inflate the suit until the pressure
Inside a equal to pressure “A”. the pre-tese
expansion suit pressure. Allow at least one
minute to fill out the wrinkles in the suit.
Release sufficient air to reduce the suit
pressure to pressure “F. the suit test
pressure. Begin “ g At the end of thre ,
minutes. re..,.rd h. suit pressure as prs...,w
“C.” the ending suit pressure. The d sreng.
between the suit test pressure and the . ii4h,g
suit test pressure (B—C) shall be defined as
the suit pressure drop.
6.2.6 U the suit pressure drop Is more than
percent (% ) of ha suit test pressure B
during the three minute test period, the suit
fails the test and shall be removed from
service.
7.0—Retest Procedure
7.2 it the suit fails the teat check (or asks
by utilating the suit to pressure A and
brushing or wiping the entire suit (Including
-------
45672 Federal Reqinter / Vol . 51. No 24 / Friday. December 19. 1986 / Rule, and Regulations
teams. closures. lens ga.kets. qlov.’io..l.eve
loinS. etc.) with a mild IOS arid water
,olution. Observe the suit lot the lomistion of
soap bubbles. wnich is an indication of a
lean. Reçair all identified cubs.
2 Retest he TE P suit as outlined in
Test procedure 6.0. —
00—Report
8.1 Lack 1W? suit tested by this practice
shall have the Following information
recorded.
6.1.1 Unique identification number
identifying brand name. date of purchase.
material of cotiseuction. and uniqo. fit
leant, ,,: e.g.. sp.aal breathing apparates.
6.1.2 The actual values for teat presmusa.
A. & and C shall be recorded along with the
specific observation times. If the ending
pressure IC) is less than 60% of the set
pressureS) the suit shall be identified as
(suing the test. When poambi.. he spoedic
lea. location shall be identified in Use test
records. Retest pressure data shall be
recorded as an additional teat.
8.1.3 The source of the teal apparent.
used shall be identified and the sensitivity of
the pressure gauge mall be ,ecorded.
6.1.4 Records shall be kept for each
pressure test even if repaus are being aide
at the test location.
Caution
Visually inspect all parts of the suIt to be
sure they are positioned . ..uei tly and
secured tightly before putting the suit back
into service. Special can, should be taken to
examine each exhaust valve to make sure it
is not blocked.
Car, should als, be exercised to aasuiv
that the Inside and outside of the suit a
completely dry before It Is put Into storage.
8. FuI!y.Eracapeialatsd Soil Qualitative Leak
Test
tO—Scope
1.1 ThIs practice seml-quallt.dve ly tests
gas tight totally .encap.ulatlng chemicaL
protective suit integrity by detecting Inward
leakage of ammonia vapor. Since no
modifications are made to the suit to cony
out this teat, the result. (ruin this precUce
provide a sailed, teat for the Integrity of the
entire suit.
1.2 Resistance of th . suit material. to
permeation. penetiadon. and degradation is
not determined by this test method.
.0—Oescripttoo of Tuna
2.1 Totally -uncapeulatad chemical
protective suit (TECP seat)— full body
garment which ía coaseuct.d of protacUv.
clothing material,: covesa the wearsta torso.
head, arms. and lags: may cover di. wearers
handa and feat with tightly aw=’h tI gloves
and boot, completely enclose Us. wearer by
itself or In combination with the ‘rearm’s
respiratory equipment. gloves, and boots.
U Protective doUsing material—Any
material or combination of matartala tied La
an Item of clothing for the purpose of
isolating parts of the body from direct contact
with a potentially hazardou, liquid or
gsseoua chemical..
2.3 Cea ttqbr—fcr the purpose of this
pracuca Us. limited flow of a pa. under
pre.eun from the imid.. of a 1WP mit to
atmosphere at a prescribed pressure and time
interval.
.l Shall’—This c nn indicates a
mandatory requirement.
.S Shouid —This cmi indicates a
recommendation or that wn,ch us advised but
not required.
2.6 May —This term is used to statg.
permissive use or an alternative method to a
specific requirement.
J intrusion Coefficient—A number
eIpressing the level of protection provided by
a gas tight totally.encapaulating chemical
protective suit. The Intrusion cneitlctent is
calculated by dividing the test room
chailenge agent concentration by the
concentration of challenge agent found inside
the suit. The accuracy of the intrusion
coefficient is dependent on the challenge
agent momtonng methods. The larger the
ininision coefficient the greater the protectIon
provided by the TECP suit.
3.0—Summary of Recommended Practice
3.1 The volume of ammonia solution
required to generate th. last atmosphere is
detetmuiad using the directions outlined in
6.1. The suit is donned by a person wearing
the appropriate respiratory equipment
(normaily a sell.containsd breatlung
apparatusi and worn inside the endosed test
room. The ammonia solution is taken by the
suited individual into the test room and
poured into an ooen plastic putt. A tw
minute evaporation period a observed before
h. test room cancanuauon ii measured
using a high range ammonia length of stain
detector tube. When the ammonia reaches a
concentration of between 1000 end l 0 ppm.
the suited individual starts a standardised
exercise protocol to stress and flex the suit.
After this protocol is completed the teat room
concentration is measured again. The suited
individual exits the sat room and his stand-
by person measure. the ammonia
concentration inside the stat using a low
range ammonia length of stain detector tub.
or other more sensitive ammonia detector. A
stand.by person is requited to observe the
test indlviduaj during the test procedur.. aid
the parson In donning and doffing th. 1W?
suit and monitor the suit Interior. The
inttueio. coefficient of the suit can be
calculated by dividing the average test area
concentration by Us, interior suit
concentration. A coloninainc indicator snip
of bramophanol blue Is placed on the Inside
of the suit lace piece lens so that the suited
Individual is abl, to datect a color change
and know if the suit has a significant lash. If
a color change is observed the individual
should leave the test room immediately.
4.0—Required Supplies
4.1 A supply of concantisted ‘“a (58
percent amnoniun hydroxid, by wsight).
4.2 A supply of bromop’sn—’lbhie
‘uidlcatlng paper. senaiths to 3-10 ppm
ammotu.a or greater over a two.mmuta period
of azpoeure.
4.3 A supply of high rang. (0.3-10 volume
percent) and low rang. (3.’OO ppm) detector
tub.. for ammonia end the cotreeponding
sampling pump. More sensitive ammonia
detectors can be suoeututad for the low rings
detector tubes to improve the sensitivity of
this practice.
1 4 A plastic pen (PVC) ai least *2. 1..
and a half pint plastic container (PVC) with
Iiqht!y closing lid.
l.a Volumetric measuring device of at
leesi SO milliliters in volume with an
accuracy oi at least = 1 milliliters.
S 0—-Safety Precautions
3.1 Concentrated ammonia is a corrosive
volatile liquid requiring eye. skin, and
respiratory protection.
3.2 Since the threshold limit value for
ammonia is 23 ppm. only persona wearing he
appropriate respirator protection shall be in
the caamber. Normally only the psraon
wearing the eotal.encapaulattng suit wiU be
inside the chamber. A stand.by person shall
have a sell.contatned breathing apparent.. or
equivalent breathing upparelus. available to
enter the lest area should the suited
Individual need aesistance.
3.3 A method to monitor th. suited
individual must be used during this test.
Visual contact Is the simplest but other
methods using communication devices are
acceptable.
5.4 The test room shall be large enough to
allow the exercise protocol to be corned out
and ventilated to allow for eury exhaust of
the ammonia test atmosphere slier the test(s)
are completed.
3.3 Individuals shall be medically
screened for the use of respiratory protection
and checked for allergies to ammonia before
participating in this teat procedure.
6.0—Test Procedure
6.1.1 Meaaurethetestarestothenas
foot and calculat, its volume in cubic feet.
Multiply the test area volume by 0.2
millIliters of ammonia per cubic foot of test
area volume to determine the epproximsta
volume of ammonie required to generate 1000
ppm in the test area.
6.1.2 Measure this volume from the supply
of concentrated ammonia end place it Into.
dosed plastic container.
6.1.3 Place the jar. sev.ral high range
ammonia detector tube. and the pump in the
clean test pen end locat. it nest the test area
entry door so that the stated Individual baa
easy access to these supplIes,
6.2.1 In a non-contaminated atinoapher..
open a preeaaled ammonia Indicator strip
and fasten one end of the snip to the Inside
of suit lace shield lens wher, it can be seen
by the wearer. Cats shall be taken net to
contaminate the detector pert of the IndIcator
paper by touching it. A small piece of
masking tape or equivalent should be used to
attach the indicator strip to the interior of the
suit face shield..
6.2.2 If problem, are encountered with
hi. method of attachment the Indicator strip
can be attached to the outside of the
respirator face piece being used during lb.
test. asmmmg the face piece ii were within
the TE stat.
6.3 Don he reapirulcay protective device
normally used with the suit and then don the
TEC ’ suit to be .stsd. Oteck to be aur, all
opetungs which ate intended to be sealed
(v pere. glove.. etc.) are completely s.elr -
DO NOT. however, plug off any venting
valves.
-------
Federal Rc istor I Vol. 51. 4o. 24 / Friday. December 19. ieee I Rules and Reiulauon ,
45673
64 Step into the enclosed cit room such
is a closet. bathroom. or lest booth, equipped
with in exnaust Ian. No cur should be
e hausted from the chamber during the test
because thus will dilute the ammonia
challenge concentrations.
6.5 Open the container with the pro.
measured volume of ammonia within the
.nclosed test room, and pour the liquid into
the empty plastic test past. Wait Iwo minutes
to allow for adequate volatilization of the
ammonia. A small mixing Ian can be used
near the evsporation pitt to increase the
evaporation rate of ammonia.
6.6 After two minutes a determination of
the ammonia concentrsiion within the
chamber should be made using the high range
colorimetric detector nib.. A concentration of
1000 ppm ammonia or greater shall be
generated before the exercises are started.
6.7 To lest the integrity iii the swt the
following four minule exercise protocol
should be followeth
6.7 1 Raising the arms above the head
with al least 15 raising motions completed in
one minule.
8.7.2 Walking In place (or one minute with
at least 13 rsistng motions of each leg tn a
one-minute period.
6.7.3 Touching the toes with a least 10
complele motions oi the arms From above che
heid to touching of the toes tn a one.mmute
period.
6.7.1 Deep knee bends with at le.at tO
complete standing and squantng motions itt a
one-minute period.
to At any time during the test should the
colonmeutc indicating paper chang. colors
the test should be stopped and section 6.10
and 6.12 initiated.
6.9 After completion of the test exercise.
the test ares concentration should be
measured again uatng the high range
colonmeinc detector robe.
6.10 Lxi i the test ares.
611 The opening crested by the suit
vuper or other appropri.te suit penetration
should be used to determine the atumoitia
concentration in the suit with the low range
length of stain detector tube or other
ammonia monitor. The internal TECP suit air
mould be sampled far enough from the
enclosed test area to prevent a false
ammonta reading.
6.12 After completion of the measurement
of the suit interior ammonia
the test is concluded and the suit Is doffed
and the respirator removed.
e.u The ventilating fan for the Last room
should be turned on and allowed to run for
enougn time to remove the ammonia gas.
6.14 Any detectabl, ammonia in the suit
interior (5 ppm NH, or mote for the length of
stain detector tubel adleste. the suit fails 1k.
test. When other ammonia detectors are
used. a lower level of detection Is possible
and it should be specified u the pass fall
criteria.
6.13 By following this practice an
Intrusion coefficient of sppro*imately ZOO or
more can be measured with the suit in a
completely operational cond1tlon
7 0—Retest Procedures
7.1 If the suit (ails this test check for leaks
by following the pmsure test in test A
above.
Retest the TECP tuit as outlined in the
test procedure 6.0.
110—Report
6.1 Eticli gas tight totally.ancapsislattnq
chemical protectiv, suit tested by this
practice snail have the following information
recorded.
6.1.1 Unique identification number
identifying brand name, date of purchase.
material of construction, and unique suit
Fealures: e.g.. special breathing apparatus.
6.1.2. General description of test room
used (or test.
8.1.3 Brand name and purchase date of
ammonia detector snipe.
8.1.4 Brand name, sampling rung ,. and
e’tpiration date of the length of stain
ammonia detector tubes. The brand name
and model of the sampling piunp should also
be recorded. If another type of ammonia
detector is used, It should be identified along
wiih its minimum detection limit for
ammonia.
8.1.5 Actual test results shall list the two
lest area concentrations. their average. the
interior suit concentration, and the calculated
intrusion coefficient. Retest data shall be
recorded as en additional test.
8.2 The evaluation of th. data shall be
specified as ‘s lut p.s.ed or suit (ailed” and
the date of the test. Any detectable ammonia
(3 ppm or greater for the length of stain
detector Woel in the suit interior IndIcates the
suit fails this teal. When other ammonia
detectors are used. a lower level of detection
is possible and it should be specified as the
pass fail criteria.
Caution
Visually inspect all parts of the suit to be
sure they are positioned eorrvcdy and
secured tightly before putting lie suit back
unto service. Special care should be taken to
examine each exhaust valve to make sure it
is not blocked.
Care should also be exercised to assure
that the inside and outside of the suit is
completely dry before it is put Into storage.
Apç ” - 3—G l D— ’l,,dos and
D’- — “s of the Levels of Prsi.cdes end
rrct.ulv. G
This appendix sets forth Information about
personal protective equipment (PP!l
protection levels which may be used to assist
employers in complying with the PPE
requirements of this section.
As required by the stattdaid. PVE must be
selected which will protect employees from
the specific hazards which they are likely to
encounter during their work on-site.
Selection of the appropriate PPE Is a
complex process which must take into
consideration a variety of factor., Key factor.
involved In this .sa at, l ria doa of
the hazards, or suspected hazards. their
rout.. of potential hazard to employee.
(Inhalation, skin absorption, ligestion, s ad
eve or skin contacti and the performance of
the PPE mcgaivals (and seem.) In providing a
barrier to these hazards. The amount of
protecuon previded by PPE Is material-
hazard specific, That is, protective equipment
materials will protect well against some
hazardous suoatancee and poorly, or not .1
alL against others, In many instances,
protective equipment materials cannot be
—
Found which will provide continuous
protection Item the particular hazardous
iuosiance. In these cases the breakthrough
time ot the protective materiel should exceed
the work durations. or the exposure after
breaiithrougn must not pose a hazardous
level.
Other (actors in this selection procsea to be
considered are matching the PPE to the
employee s work requirements and task-
specific conditions. The durability of PPE
materials, such as tear strength and seam
strength, in relation to the employees tasks
must be considered. The effects of PPE In
relation to heat stress and task duration are a
(actor in selecting and using PPE. in some
cases layers of PPE may be necessary to
provide sufficient protection. or to protect
expensive PPE inner garments. suits or
equioment.
The more that is known about the hazards
at the site, the easier the pob of PVE selection
becomes. As more information about the
hazards and conditions at the sit . becomes
available. the site supervisor can make
decisions to up-grade or down-grade the level
of PPE protection to match the tasks at hand.
The following are guidelIne. which an
employer can use to begin the selection of the
approprisie PPE, As noted above, the site
information may suggest the use of
comoinanons of PPE selected from the
different protection levels (I . . . . A, 3, C. or 0).
as oeing more suitable to the hazards of the
work, It should be cautioned that the listing
below does not Mly address the performance
of the specific PPR material In relation to the
specific hazards at the job site.. end that PPE
selection, evaluation and re-selection Is an
ongoing proGe.a until sufficient information
about the hazards and PP! performance in
obtained.
Pitt A. Personal protective equipment baa
been divided into (our categories based on -
the degise of protection afforded and are as
fellows (See Part B of this appendix for
further explanation of Levels A. 3, C, and 0
haxaidsit
L L.veJA—To be selected when the
greatest level of skin, respiratory. and eye
protection is required.
Level A squipmene used as appropriate
L Presaiir,-deuiand. full lace-piece self.
contained breathing apparatus ISQA). or
pmsur.-detnasid supplied air respirator with
escape S A. approved by the t4edon*l
Institute (or Oecupetlonal Safety and Health
(NIOSH).
L Totally-encapsulating chemical-
protective suit.
3. Coveralls.
4. Long underwear.
5. Gloves, outer. chstuicaI.,esIsta t.
6. Gloves. Inner. chamical-re.ietinl.
7. Boots. diemical ’restatanL steel toe sad
shank.
& Hard hal (under suit)
9. DIsposable protective suit, gloves and
boots (Depending on suit constrictioO. may
be worn over totaliy..ncapsailadng suit)-
10. Two-way radios (wore Inside
enespeulating suit).
‘OptionaL as applIcable.
-------
45674 FederaL Reciter / Vol . 51. No. 2 4 I Friday. December 19. 1986 ‘ Rules and Re ulaI1on3
IL (awe! B—The highest level of respiratory
protection is necessary but a suer level of
skin protection is needed.
Level B equipmene used a. appropriate
1. P ’essur,-detnand. full Jacepiece self.
contained breuining apparatus (SC3AI. or
pressure-demand supplied air respirator with
escape SCEA (NIOSH approvedp.
z. Hooded chemical-resistant dothlng
(overalls and long-sleeved sck.ti eoveralls
one or two-piece chemical-splash suit
disposable chemical-resistant over. 1 14
3 Coveralls’.
4. Cloves. outer. chemicsl .resistant.
S. Cloves. inner. dimnscal-reeistant.
6. Boots, outer. chemical-mutant steel to.
and insult.
; Boot-coven. outer. chemical-resistant
(disposubl.i ’.
0. Hard hat.
9. Two-way radios (worn Inside
encapsuladut; mu
*0. Face shield.
OpuonaL as applicable.
( IL Law,! C—The t1on sI and
typeisl of airborne substance(S) Is known
and the ausna for using air pwufyuig
respirators an met.
Level C equiumenc used ae ai.,...p..ats
1. Full-face or half-mask. air purifying.
camsierequipped respirators (NIOSH
4oprovets).
2. Hooded theitucal’resistant dothlng
(overeilsi two-piece chemical-splash mine
d sposubie chemical-mutant over,llsl.
3. Coverslls.
4. Cloves, outer. chemical-reslstant.
S. Cloves. inner. themlcal-,esletant.
0- Boots (outar(. di caI-raetstsaa steel toe
and shank.
7. Boot-,.ovwra. outer. thenucal-resustaae
(disooaabkr.
I. Hard hat
9. Escape mask’
10. Two-way tidIes (wont auusids
proteenve dothmg
it Face shield’
‘Optlon.L a, applicable.
IV. Law.! 0—A work uniform affording
minimal protectiotu used for u”’— ’-
contanwiatton only.
Level 0 equapaienc used as appropdat.
L Coveralls.
2. Cloves’
3. Boorslslioee. ch’-- - . ..l.L . ,t steel toe
arid shank.
4. Boots. outer. themicakmiatmtt
(dlspoeeblsl.
S. Safety &asses or chemical splash
goggles.
6. Hard hat
7. Escape maak.
S. Face shield.
•OptlottaL as applicable.
Part & The types of hazarda for which
levels A.B.C and D protectIon are
appropriate are desatbed belsin
L Law.! A—Level A protection should be
used wham
I. The hazardous substance baa been
Identified and reqinres thu highest level of
protection for skin, eyes, and the respiratory
system based on sithar the measured (or
potential (on hIgh cu. trauon of
atmospheric vapors. gases. or particulate.: or
the site operations and work functions
involve a leign potential far splash.
immersion. or exposure to unexpected
vapors. gases. or particuiauem of materials
that are narm(ul to skin or capable of being
absorbed through the intact skin.
2. Substances with a ugh degree of hazard
to the skin are known or suspected to be
present. and skin contact is possible, or
3. Operations must ba conducted lii
confined, poorly ventilated areas end the
absence of conditions requiring Level A have
not yet been determsiist
IL Level B protection should be used wham
1. The type end atmospheric concanurstion
of substances have been identified and
require a high level of respiratory protecul on.
but less sin protection.
Nots.—Thms involves atmospheres with
IDLH concanunuoss of specie suba’”
tli.t do not represent a savers skin bazart or
thai do not meet the aitena for use of air.
purifying respirator.
2. The amiosphers contains lass than 19.5
percent oxygen, or
3. The presence of Incompletely identified
vapors or gases is indicated by a direct-
reaomg organic vapor detection insoamant.
but ‘spore and gases ate not suspected of
containing hiqn level, of chemicals harmful to
skin or capaole of being absorbed Uuu..,M he
intact skin.
ilL Level C protection should be used
1, The amiosphonc contaminant. Uqwd
splashes. or other direct contact will not
adversely affect or be absorbed through any
exposed skin.
2. The types of air contaminants have been
identified. w. ..uU1tIOflS measured. and a
canister ..,.....tor is available that can
remov, the coetsuwuants. and
3. All cutest. for the use of aupurifying
respirators are met
I V. Level 0 should be med
witeac
LThe a bet, emtains no known
bawd. and
2. Work functions preclude splashes.
Immersion, or the potential for unexpected
inhalation of or contact wtth hazardous levels
of any chemicals.
Note.—As stated bafu.-. . combination, of
personal protective equipment other than
those desorebed for Levels A B.C and 0
protection may be more ayy.qJlate and may
be used to provide the proper level of
protectI
App— ’ C--’ .“ G i51
1. O.ccopeUom&Sa buy end fferkh
Pmqrnnx Each b. ....J ..., . worto sits dean-ep
effort well require a site specIfic
safety and health ptugriw heeded by the site
coordinetue’ or the . ....,.L,d . ...,. ...eutedve.
fle will be dasi,...d for the
protection of em ,Jcys.. . at the site. The
program well need to be developed before
wont begins on the sit, sued Implemented as
work proceeds . The program is to Iaclltate
coordination end comiunnicadon among
p......,.wl responsible for the . gi
activities width will ski place at the mile. It
will provide the overall means for planning
and wiplementing the needed safety end
health ir.irnnq and tob orientation of
.moloyees. wno will be working at th . site,
The proç’sm will provide the means for
icentifying and controlling worksite hezards
and the me.ns (or monitoring prograni
effectiveness. The program will need to sever
the resoonsubilities end authority of the mite
coordinator for the safety and health of
employees at the site, and the relationships
with contractors or support services as to
what each employer s safety and health
responsibilities are for their employees on the
site. Eacn contractor on the site needs to
have its own safety and health program so
structured that it will smoothly Interface with
the program of the mite coordinator.
Each site safety end health program will
need to include be followinç (1 ) PolIcy
statements of the line of authority and
accountability for implementing the program.
the ob,ecnvea of the program and the role of
the site safety arid health ofilcar or manager
and staft (2) maans or methods for the
development of procaduras for identifying
end controlling workplace hazards at di. site
(3) means or methods for the development
and communication to employees of the
various plans. work mules. stani4 rd operating
procedures and practices that pertain to
individual employees amid supervisorn (4) the
training of supervisors and employees to
develop the needed skills and knowledge to
periorm their work in a tale and healthful
wannest (3) means to anucipate and prepare
for emergency situations and: (S) Information
feedback to aid Its evaluating the prograr
and for improving the effectiveness of U
propism. The managemtienl and employ.
should be trying continually to Improve the
effectiveness of the program thereby
ennancinq th. protection being afforded those
working on the site.
Accicents on the mite should be
investigated to provide Information on how
such occurrences came be evoided In he
future. Whet, inpmee or illnesses occur eta
the site, they well need to be L ,rntlqated to
deteriuune wiest needs to be done to . ...,,.t
this incident from occurring again. Scale
Information well need to be used as feedback
on the effectiveness of the prugrase and the
information mined Into positive steps to
prevent any reocauireuca. Receipt of
employee suggestions or complaint, relating
to safety and health Issues Involved with sIte
activities is also a feedback mechanism that
needs to be used effectively to improve the
program and may serve in part as an
evaluative tool(s).
2. Trn:nuig. Th. employer Is encouraged to
utilize those training programs that have been
reccçuzed by di. National Institute of
Envimii” ’ 1 Health S ”. . through Its
tr-’-g grants propiam. Thea. tmlnlsg and
educanonat programs an being developed
for the employees who work directly with
hazardous “ -‘‘ve . For further
information about these program. couta
National Inaututa of Environmental Health
Sciences. P.O. Box 13. Raseazch Tdanpl.
Park. NC
Training programs (or emergency service
orgemrsnons are available (rein the ILS.
National Fire Academy. Emittsbvig. SQ
the various state fire training schools. ‘lit
-------
Federal Register / Vol. 51. No. Z 4 / Friday. December 19. 1988 / Rules and Requlattons
4567
International Society of Fire Service
Instructor ,. Ashland. MA is attainer resource.
3 OecontamsnaliOfl. Oecontamir.atioti
procedures should be tailored to the speCifiC
ha:ards of the site and will vary in
complexity. md numoer c i steps. depending
on the level of hazard and the employees
eposure to the hazard. Decantamuiation
procedures and PPE decontamination
methods will vary depending upon the
specific substance. since one procedure or
method will not work (or all substances.
Evaluation of decontamuiatlomi methods and
procedures should be performed. as
necessary, to assure that employee. are not
exposed to hazards by reusing PPE.
References in Appendix 0 may be used for
guidance in est*bliihiitq an effective
decontaminatiOn proç’am.
4. Emergency response plans. States. along
with designated districts within the states.
witl be developing or have developed
emergency response plans. The.. district and
slate plans are to be utilized In the
emergency response plan . called (or In this
stanuard. Each employer needs to ultra that
its emergency response plan is compatible
with the local plan. In addition, lie CA
program of the Chemical Manufacturers
Association (CMAI is another helpful
resource in formulating an effective
emerpncy,responsa plan. Also the Current
Enieraency,Respoflse Guidebook front the
- U.s. Department of Transportation. CMAs
cIlFz rrREC and the Fire Service Emergency
Management Handbook should be used as
tesources as welL
- 4p eusdix 0—References to Appendix
- Thelollowing references to the Appendix
quay be consulted for (Wilier Infonuatlon on
the subject of this nottcn
1. OSHA Instruction OFO a’i. 2. ’O—
Ianuary 9. 1986. Special £nphasss Prugrem:
Hazomous 14 one Sites.
. OSHA Instruction OFO CPI. -2.37A—
January . 1986. Technical .4ss,srance and
Guidelines for Superiund and Other
Hazardous Waste Site Activities.
3. OSHA Instruction OTS CPI. z.;4—
January 29. 1981. Hazardous Waste Activity
Form. OSH.4 271
4. Hazardous Waste Inspections Reference
ManuaL U.S. Oeoasiment of Labor.
Occupational Safety and Health
AdmirnsvauOn. 1986.
S. Memorandum of Understanding Among
the National Institute for Occupational Safety
and Health, the Occupational Safety and
Health AdmimstiattOn. the United Static
Coast Guard, and the United State.
Environmental Protection Agency. Guidance
for 1t ’or*er Protection Dunng Hazardous
Waste Site Investigat Ions and Ciean’up and
Hazardous Substance Smesgenaes.
Cecember 11.1980.
6. .Vauonal Priorities LEer. let Edition.
October 1914: U.S. Environmental Protection
Agency. Revised periodIcally.
7. The Oeconrammatson of Response
Personnel. Field Standard Operating
Procedures IF.S.O.P.l 7: U.S. Environmental
Protect on Agency. Office of Emergency and
Remedial Response. Hazardous Rasponae
Support DIvision. December 1914.
8. Prepaiution of a Site Safety Plan. Field
Standard Operating Procedure. (F.5.O.P.J 9:
U.S. Environmental Protection Agency. Office
of Emergency and Remedial Response.
Hazçdous Response Support DIvision. April
1913.
9. Standard Operating Safety Guidelines:
U.S. Environmental Protection Agency. office
of Emergency and Remedial Response.
Hazardous Response Support DIvision. —
En’ ironmental Response Teacu November
1984.
to. Occupational Safety and Health
Gu;donce Manual lot Hozardoua Was :. Size
.4 cii vu:es. National institute (or
Occupational Safety and Health (NIOSHI.
Occupational Safety and Health
Admuustratiott (OSHAP. U.S. Coast Guard
(USCG). and Environmental Protection
Agency (O’Ab October1985.
11. Protecting Health and Safety at
Hazardous Waste Sitou An Overview. U.S.
Environmental Protection Agency. ‘A/ez5l
9-83 1009: September1915.
12. Hazardous Waste Sites and Hazardous
Substance Emeqencies. NIOSH Worker
Bulletin. U.S. Department of Health and
Human Service.. PublIc Health Service.
Center. (or Olsease ContioL National
Ins titute for Occupational Safety and Healtin
December1912.
13. Persona! Plot.ct,v. £qiupment far
Hazardous Materials Incidents: A Selection
Guide; U.S. Department of Health and Human
Services. Pubilc Health Service. Centers (or
Disease ControL National Inadlute for
Occupational Safety and Health October
1914.
14. F7av Service Emesgency Management
Handbook Federal Emergency Management
Agency. Washington. DC. January 1983.
15. Eaieigancy Response Guidebook. 124
Department of Transportation. Wuhingtm
DC.1983. .
(FR Doc. 88-29171 FlIed 12-18-89:12 :57 aj
owns cool lats .IS.d . -
-------
Interim Guidance on Compliance with
Applicable or Relevant and Appropriate
Requirements
-------
Undid States Env.vonm.ntaI Prot. t on Agency I 0u ,.cti . Numb.,
Washington. DC 20460
r&EPA OSWER Directive Initiation Reauest 9234.005
2. Qrigsnetor InlormetiOn
o. Contact Perwn Mail Cod. Off CS T.lophon• Number
Arthur Weissman WH-548D OSWER/OERR/OPM/PAS 382-2182
3 1.tl•
Interim Guidance on Compliance with Applicable or Relevant and Appropriate Requirements
jummary of Ourecuve ( lnclud brie! statemant olpulposal i.fle guidance addresses the requirement in
CERCTJL, as amended by the Supe .fund Mendments and Reauthxizati3fl Act 3f 1986, that
remedial actions ccniply with applicable relevant and appropriate requirements (ARARs)
of Feder 1 laws and more stringent, przxnulgated State laws. The guidance describes h i
requirements are generally to be identified and applied, and discusses specifically
ccxnpliance with State reciuirements and certain surface water and groundwater standards .
S Kaywordl
Superfund CERCLA. SARA, Other environemtnaI renuirements. rnmnl
6. 0oes mis Directive Supe sade PreviouS O,recuve(sI? D Yes [ J No What d.v .c tive (numb.’. tnI .j
b Does It Supplement Previous D,r.ct,ve(s 1 jJ Yes 0 No Whet Directive (numb . ’ Iale
9234.0-02 CERCLA Compliance with other Environmental Statutes
7 DrafT Level
0 A — Signed by AA/OAA 0 B — Signed by Office Director 0 C — For Review & Comment 0 In Development
Thus Ropuest Meets OSWER Oirect,ves System Formet
,8. Sugna of Lead ucj.D reCtuvSS C nat r Date
( e(n
9 Name and Title al Ap ving Off .ctaI :7 Date
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J. lnston Porter, Assistant Administrator ‘ ‘1 5
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
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OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
9234. 0—05
VRANWM
StJBJECr: Inter un Guidance on Ccmpliance with Applicable or Relevant and
Appr 5 t iate y9Q a ents
L Yi
FROM: J. Winston Porter
Assistant Administrator
TO: Addressees
Executive Surcuary
The guidance addresses the requir nent in CEROLA, as amended by the
Superfund Anendments and Reauthorization Act of 1986, that renedial actions
canply with applicable or relevant and appropriate requir nents (ARARs) of
Federal laws and more stringent, pranulgated State laws. The guidance
describes h requir nents are generally to be identified and applied, and
discusses specifically ccznpliance with State requiranents and certain
surface water and groundwater standards. Applicable and relevant and
apprcpriate are defined, and the three types of ARABs (chemical—, location—,
and action-specific) are described. Guidance is given on h and at what
points ARABs are to be used in the remedial process. Eligible State z equire—
inents are defined, with partiaalar reference to prczmilgated, and direction
is given on evaluating siting laws and on using the waiver regarding
consistency of application. Finally, the guidance discusses the use of
water standards specified in the law (MCLGs, WQC, ACLS), and describes the
use of PCLS as cleanup standards for surface water or groundwater that is
or may be used for drinking.
This memorandun provides interim guidance on ccxnpliance with other
Federal and State enviromental laws in conducting CERCT.A remedial actions.
The guidance is intended to help define the nature, sccpe, and use of
applicable or relevant and apprc xiate requirements. The guidance is not
intended to be cL ç ehensive or exhaustive. The Agency is currently
develcçing a guidance manual that provides detailed information on potential
ARABs in the major Federal envirolinental statutes.
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Background -
Section 121(d) of CERCLA, as amended by the Superfund Miendments and
Reauthorization Act of 1986 (SARA), requires that Fund—financed, enforc ient,
and Federal facility remedial actions cauply with requirements or standards
under Federal and State environmental laws. The requir rents that must be
caiplied with are those that are applicable or relevant and appropriate to
the hazardous substances, pollutants, or contaminants at a site or to the
circumstances of the release. Caupliance is required at the ccmpletion of
the remedial action for hazardous substances, pollutants, or contaminants
that remain on—site. Any such requirements may be waived under six condi-
tions provided that protection of human health and envirorrnent is still
assured.
SARA essentially codified and expanded upon the gency’s Canpliance
Policy, which was included in the National Contingency Plan (revised
November 20, 1985). The major difference between that policy and the new
statutory requirement is that the latter includes more stringent, pranul—
gated State environmental standards as potentially applicable or relevant
and appropriate requirements, and Maximum Contaminant Level Goals and
Federal Water Quality Criteria as potentially relevant and appropriate
requirements.
GE 4ERAL GJIDANCE ON IDENTIFYING AND USING ARARs
This section defines what AMPs are, describes the different types
of ARAR5, and discusses h they are applied to the remedial process.
Definition of ARARs
A requirement under other enviromental laws may be either applicable”
or “relevant and appropriate” to a remedial action, I it not both. A two-
tier test may be applied: first, to determine whether a given requirement
is applicable; then, if it is not applicable, to determine whether it is
nevertheless relevant and appropriate.
Applicable requirements means those cleanup standards, standards of
control, and other substantive environmental protection requirements,
criteria, or limitations pranulgated under Federal or State law that
specifically ad ess a hazardous substance, pollutant, contaminant, remedial
action, location, or other circumstance at a C I.A site.
“Applicability” implies that the remedial action or the circumstances -
at the site satisfy all of the jurisdictional prerequisites of a require-
ment. For example, the minimum technology- requirement for landfills under
RCRA would apply if a new hazardous waste landfill unit (or an expansion
of an existing unit) were to be biilt on a CERCLA site.
Relevant and appropriate requirements means those cleanup standards,
standards of control, and other substantive environmental protection
requirements, criteria, or limitations promulgated under Federal or State
law that, while not “applicable” to a hazardous substance, pollutant,
contaminant, remedial action, location, or other circumstance at a CERCLA
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—3— 9234.0—05
site, address problems or situations sufficiently similar to those enc3un—
tered at the CEI tA site that their use is well suited to the particular
site.
The fèlevance and appropriateness of a requi.renent can be judged by
caTiparing a number of factors, including the characteristics of the
remedial action, the hazardous substances in question, or the physical
circ nstances of the site, with those addressed in the requirement. It
is also helpful to look at the objective and origin of the requirement.
For example, while RCRA regulations are not applicable to closing undis-
turbed hazardous waste in place, the 1 RA regulation for closure by
capping may be deemed relevant and appropriate.
A requirement that is judged to be relevant and appropriate must be
ccinplied with to the same degree as if it re applicable. However,
there is more discretion in this determination: it is possible for only
part of a requirement to be considered relevant and apIrcpriate, the
rest being dianissed if judged not to be relevant and appropriate in a
given case.
Non—pranulgated advisories or guidance documents issued by Federal
or State goverrYnents do not have the status of potential ARABs. H ver,
as described below, they may be considered in determining the necessary
level of cleanup for protection of health or envirorinent.
Types of ARABs
There are several different types of requirements that Superfund
actions may have to canply with. The classification of ARABs below is
offered for illustrative p poses.
Mibient or chemical-specific requirements set health or risk—
based concentration limits or ranges in various envirorriental media for
specific hazardous substances, pollutants, or contaninants. Examples:
Maxiinun Contaminant Levels, National Pnibient Air Quality Standards.
These requirements may set protective cleanup levels for the chemicals
of concern in the designated media, or else indicate an acceptable level of
discharge (e.g., air emission or wastewater discharge taking into account
water quality standards) where one occurs in a remedial activity. If a
chemical has more than one such requirement, the more stringent ARAR
should be cauplied with.
There are at present a limited nunber of actual ambient or chemical—
specific requirements. In order to achieve reeedies that are protective
of health and envirorrnent, it may frequently be necessary to use chemical—
specific advisory levels such as Carcinogenic Potency Factors or Reference
Doses. While not actually ARABs, these chemical—specific advisory levels
may factor significantly into the establislitent of protective cleanup
levels. Guidance for establishing such chemical—specific, health—based
cleanup levels is given -in the &iperfund Public Health Evaluation Manual
(EPA 540/1—86/060, Oct. 1986).
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—4— 9234.0—05
Performance, design, or other action—specifid requirements
set controls or restrictions on particular kinds of activities related to
management of hazardous substances, pollutants, or contaminants. Examples:
RCRA regulations for closure of hazardous waste storage or disposal units;
RCRA incineration standards; Clean Water Act pretreabnent standards for
discharges to POIWs.
These requirements are triggered not by the specific chemicals
present at a site but rather by the particular remedial activities that
are selected to acccinplish a remedy. Since there are usually several
alternative actions for any remedial site, very different requirements
can co’ e into play. These action-specific requirements may specify
particular performance levels, actions, or technologies, as well as
specific levels (or a methodology for setting specific levels) for
discharged or residual chemicals.
• Locational requirements set restrictions on activities depending
on the characteristics of a site or its ininediate environs. Examples:
Federal and State siting laws for hazardous waste facilities; sites on
National Register of Historic Places.
These requirements function like action—specific requirements.
Alternative r dial actions may be restricted or precluded depending on
the location or characteristics of the site and the requirements that
apply to it.
Using ARABs
This section explains h and where requirements may be applied in
the remedial planning process.
First, actual ARABs can be identified only on a site—specific basis.
They depend on the specific chemicals at a site, the particular actions
proposed as a remedy, and the site characteristics. Guidance is being
developed on the potential ARABS under the major Federal environmental
statutes for various activities, locations, and chemicals.
Where there are no specific ARABS for a chemical or situation, or
where such ARARs are not sufficient to be protective, one should identify
pertinent health advisory levels (such as Reference 1) ses or Carcinogenic
Potency Factors) as desoribed above in order to ensure that a remedy is
protective.
The different ARABS that may apply to a site and its remedial action
should be identified and considered at multiple points in the remedial
planning process, namely:
— I ing sccçing of the RIJ , chemical—specific and location—specific
ARABS may be identified on a preliminary basis.
— ing the site characterization - phase of the Remedial Investigation,
when the public health evaluation is conducted to aSSeSS risks at a
site, the chemical—specific ARABS and advisories and location—specific
ARABs are identified more c . rehensively and used to help determine
the cleanup goals.
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—5— 9234.0—05
— During develcçxnent of remedial alternatives in the Feasibility Study,
action—specific ARARs are identified for each of the proposed alterna-
tives and considered along with other ARABs and advisories.
— During detailed analysis of alternatives all the ARARs and advisories
for each alternative are examined as a package to determine what is
needed to ccxnply with other laws and be protective.
— When an alternative is selected it ns.ist be able to attain all ARMS
unless one of the six statutory waivers is invoked.
— During remedial design the technical specifications of construction
must ensure attainment of ARARs.
Note that CERCtA S121 Ce) exempts any on—site response action fran
having to obtain a Federal, State, or local permit .
In general, on—site actions need canply only with the substantive
aspects of these requirements , not with the administrative aspects. That
is, neither applications nor other administrative procedures such as
permitting or administrative reviews are considered ARABS for actions
conducted entirely on-site, and therefore shculd not be pursued during
the remedial planning or the remedial action. HcMever, the RI/FS, Record
of [ cision, and design docunents should demonstrate full ccznpliance with
all substantive requirements that are ARABs. Also, other Federal and
State program offices should be consulted as appropriate to ensure that
remedies are substantively caupliant with identified ARARs.
GUIDANCE ON IDENFIFYING STATE ARABS
This section describes the basic factors to be considered in identi-
fying State requirements for Superfund remedial actions.
As mandated by CERCLA S12 1(d) (2) (A), remedies must ccznply with “any
pranulgated standard, requir ient, criteria, or limitation under a State
environmental or facility siting law that is more stringent than any
Federal standard, requirement, criteria, or limitation” if the former is
applicable or relevant and appropriate to the hazardous substance or
release in question.
States are required by CE r.A to identify State ARABS “in a timely
manner,” that is, in sufficient tine to avoid inordinate delay or duplica-
tion of effort in the remedial process. Regions shexild expect to work
closely with their States so that the appropriate ARABs are identified
at critical stages in the process. At a minimum, chemical—specific and
location—specific ARABS shc ild be identified after site characterization, --
and action—specific ARABS should be identified after initial screening
of alternatives (prior to detailed analysis) for alternatives that pass
through the screening. To the extent possible, Regions and States should
negotiate to try to resolve any differences of opinion about ARABS.
Eligible Requirements
The statute specifically limits the scope of potential requirements
to those that are prcznulgated. “ Prcinulgated requirements are laws
imposed by State legislative bodies and regulations developed by State
agencies that are of general applicability and are legally enforceable .
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9234. 0—05
State advisories, guidance, or other non—binding policies, as well
as standards that are not of general application, cannot be treated as
requirements under CERCLA. However, as with their Federal counterparts,
State advisories may still be considered in determining an appropriate,
protective remedy.
General State goals that are duly pranulgated (such as a non—
degradation law) have the same weight as explicit, nunerical standards,
although the former have to be interpreted In terms of a site and
therefore may allow more flexibility in approach. Similarly, State laws
or regulations that prescribe methods for deriving nunerical standards
for specific cases may also be potential requirements.
On—site actions need ccznply only with the substantive aspects of a
State requirement , not with the administrative aspects. Where the require—
inent involves review by a State board based on explicit criteria, the
best approach is to incorporate the substantive criteria into the RI/FS
and remedy selection process and to maintain close consultation with
appropriate State representatives.
Limitations on State Siting Laws
CERCIA 5l21(d)(2)(C) puts special limitations on the applicability
of State requirements or siting laws for hazardous waste facilities that
could result in a State-wide prohibition of land disposal. Specifically,
in order to be treated as potentially applicable or relevant and appropriate
requirements, such laws must:
1) be of general applicability and be formally adopted
2) be based on technical (e.g., hydrogeologic) or other relevant
considerations
3) not be intended to preclude land disposal for reasons other than
protection of health or envirorinent.
In addition, the State must arrange and pay for additional costs for out—
of —State or other disposal necessitated by such a law.
The first criterion is similar to the criterion that a requirement be
pranulgated, as discussed above. The second criterion requires that such
a law be based on sound scientific or technical considerations, such as
groundwater flow, sizficial- geology, and engineering design. The third
criterion requires sane evidence that health or enviromental protection
motivates the prescribed restrictions; the introductory sections of a
law, the nature of the technical considerations, or the legislative history
can be used to make this determinaUon.
Consistency of Application
CERCEA S121(d)(4)(E) allows a State requirement to be waived if it
has not been consistently applied by the State in similar ci.rctunstances
at other remedial actions. The waiver cannot be used if the State has
demonstrated the intention to consistently apply the requirement.
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—7— 9234.0—05
Consistency of application by a State may be determined by examining
the foll ing:
— Application of requirement at similar sites or in similar response
circ mstances (considering nature of contaminants or media affected,
characteristics of waste and facility, degree of danger or risk, etc.)
— Proportion of cases (including enforcement actions) in which require—
ment was not applied out of total actions where it could have been
applied
— Reason for non—application of requirement in past cases
— Intention to consistently apply requirement in future as shown by
policy statements, legislative history, site remedial planning
documents, or State responses to Federal—lead sites; newly pranul—
gated requirements shall be presumed to embody this intention
unless there is contrary evidence.
All previous actions by States since pranulgation that relate to similar
remedial actions may be considered in evaluating consistency.
( JI!WJCE CN APPLYING SPECIFIED WATER SNI REE
CERCIA S121(d)(2)(A) and (B) explicitly mention three kinds of surface
water or groundwater standards with which ccxnpliance is potentially
required — Maximtin Contaminant Level Goals (MCLGs), Federal Water- iality
iteria (EWQC), and alternate concentration limits (ACts) where hunan
exposure is to be limited. This section describes these requir nts
and how they may be applied to Superfund remedial actions. The guidance
is based on Federal requirements and policies; n e stringent, pranulgated
State requirenents (such as a stricter classification scheme for ground-
water) may result in application of even stricter standards than those
specified here.
Background
These three standards or criteria each derive fran separate statutes
and have different purposes and uses.
MCLCs are developed under the Safe I inking Water Act as chemical—
specific health goals used in setting enforceable drinking water standards,
kna in as Maxlmun Contaminant Levels (MCLs), for public water supply systems.
MCWS are based entirely on health considerations and do not take cost or
feasibility into account. Moreover, as health goals tCLGs are set at
levels where no known or anticipated health effects may occur, including
an adequate margin of safety. MCLs are required to be set as close as,
feasible to the respective MCLGs, taking into consideration the best tech-
nology, treatment techniques, and other factors (including cost). However,
as the standard for public water supplies, MCLs are fully protective of
human health and (for carcinogens) fall within the acceptable risk range of
to lO . Furthermore, for non-carcinogens, which are the majority of
contaminants, MCLs will nearly always be set at the sane level as the
respective MCLGs. Also, these standards assure that even sensitive
populations will experience no adverse health effects. Thus, there will
be no difference in the protectiveness of MCL and MCLs for most contami-
nants, and, as discussed above, 1CLs provide a sufficient level of protec-
tiveness even for carcinogens.
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FWQC are developed under the Clean Water Act as guidelines fran which
States determine their water quality standards. Different FWQC are derived
for protection of h nan health and protection of aquatic life.
ACLs are one of three possible standards available under the Subpart F
Gr3undwater Protection Standards of RCRA. For setting both a trigger and
a cleanup level fcr remediating groundwater contamination, an ACE., the
background concentration, or for a email group of chemicals the MCL. can be
selected far a given site.
Statutory Mandate
CERCLA Sl21(d)(2) states that remedial actions shall attain applicable
or relevant and appropriate requirements under the Safe Crinking Water
Act, the Clean Water Act, and RA, and specifically shall attain MCLGs
and FWQC where they are relevant and appropriate under the circ1.m tances
of the release or threatened release. It further states that for FWQC
this determination will be based on the designated or potential use of
the water, the media affected, the purposes of the criteria, and current
information.
CE IA S12l(d)(2)(B)(ii) limits the use of ACLs that are set above
health—based levels based on projections that health—based levels will be
achieved at a likely point of hunan exposure. Such a point of exposure
may not be beyond the Superfund facility boundary unless the groundwater
discharges into surface water and does not cause a statistically signif i—
cant increase of contaminants in the surface water • To apply such an
ACI.. outside the facility, moreover, the remedial action must include
enf rceable measures to prevent use of any contaminated groundwater.
Application
In determining the applicable or relevant and appropriate requirements
for remedial actions involving contaminated surface water or groundwater,
the most Important factors to consider are the uses aid potential uses of
the water and the purposes for which the potential requirerents are
intended.
The actual & potential use of water, and the manner in which it is
used, will determine what kinds of requirements may be applicable or
relevant aid appropriate. For Class Ill—type groundwater that is not
suitable for drinking because of high salinity or widespread contamination
and that does not affect drinkable grcxindwater, drinking water standards
are neither applicable nor relevant and appropriate. For Class I— and
Class Il-type groundwater or surface water that is or may be used for
drinking, drinking water standards are applicable or relevant and appro-
priate, and the surface water or groundwater must ultimately be cleaned
up to such levels.
For water that is or may be used for drinking, the Maximun Contaminant
Levels (MCLs) set under the Safe I inking Water Act are generally the
applicable or relevant and appropriate standard. MCLS are applicable at
the tap where the water will be provided directly to 25 or more people or
will be supplied to 15 or more service connections. Otherwise, where
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—9— 9234.0—OS
surface water cx groundwater is or may be used f cx drinking, MCLS are
generally relevant and appropriate as cleanup standards for the surface
water or the groundwater.
A standard for drinking water for a contaminant for which there is an
MCI. may be more stringent than the MCLI to ensure adequate protection in
special circumstances, such as where either multiple contaminants in ground-
water or multiple pathways of exposure present extraordinary risks. In
setting a level more stringent than the MCLI in such cases, a site—specific
determination should be made by considering MCLGs, the Agency’s policy on the
use of appropriate risk ranges for carcinogens, levels of quantification,
and other pertinent guidelines. Prior consultation with Headquarters is
encouraged in such cases.
When MCLs do not exist for contaminants identified at the site, cleanup
levels should be set using chemical—specific advisory levels. Cleanup
levels should be selected such that the total risk of all contaminants
falls within the acceptable risk range of lO to l0 . In cases where non—
carcinogens are present, cleanup levels should be based on acceptable levels
of exposure as determined by the Reference f se, taking into account the
effects of other contaminants at the site.
It should be noted that while MCLs are generally the cleanup standards,
as described above, the treat irent necessary to attain an MCI. level for one
chemical (cx a protective level for a chemical without an MCI.) may result in
an actual level for another chemical that is belc ri its respective MCL (cx
protective level).
A more stringent FWQC for aquatic life may be found relevant and
appropriate when there are environmental factors that are being considered
at a site, such as protection of aquatic organiems. The Agency is still
formulating a position with respect to the use of EWQC for protection of
human health.
Guidance on the use of ACLs based on limitations on exposure will be
for thcaning.
Further Infczmat ion
For further infoz:ination on the subject matter in this interim guidance,
contact Steve &nith (FrS—382—2200) or Arthur Weiseman (ETS—382—2182) of
the Policy and Analysis Staff, Office of ergency and Remedial Response.
Addressees
Regional Administrators, Regions I—X
Regional Counsel, Regions I—X
Director, Waste Management Division, Regions I, IV, V, VII, and VIII
Director) Ek ergency and Remedial Response Division, Region II -
Director, Hazardous Waste Management Division, Regions III and VI
Director, Toxics and Waste Management Division, Region IX
Director, Hazardous Waste Division, Region X
Environmental Services Division Directors, Region I, VI, and VII
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Notification of Restrictions on
Reimbursement of Private Party Costs
for Removal Actions
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C 5w(:P
United States nvieonmentaI Protection Agency
Washington. OC 20460
‘EPJ OSWER Directive initiation Recuest
interim O”Ic live Num e,
J 6 0 3
Originator Inlorrnaiion
Name of Comic: Person
Jackie Oziuben
Miii Code I Teie tionq Number
WH-548 I 382-2452
Leao Office
0 OUST
• o
o 05W 0 AA.OSWER
Acøreved lot Review
Signature of Office 0.rec:or I oa.
/1) lWfl1 $-hn b (,, f - I. I i((zw(c
Tills • .
Notification of Restrictions on Reimbursement of Private Party Costs
for Removal Actions
Summary of Qirec:ive
J
Outlines the restrictive provisions of CERCLA regarding private party
reimbursement for re”novaI costs. Directs the Regions to ensure affected
communities are inforned of these provisions.
(Signed H. Longest, November 25, 1985)
‘fr
• . 0 [ t A
t/.’
•
Tyge of Oarecuve Manual. Policy O,recrn’e. . nneuncemenr. e(cJ I $cacua
I 0 Oralt I E 1’ew
Policy directive I - G 3 i 0 evision
— I
-C
Coes this Oirecave Suaerseøe Previous Oireciv (sp? Li Yes Li No Oces ii Sup;femenc Previous Qirec:ivef 5) ? Li Y 5 Jo
If Yes to Either Quescion. What Oirecuve (number. tisIe
—
Revi 3n
j , 5WEt 0 OUST 0 CEC 4 0 Other fSpec Iy!
- - 0 OWPE 0’OGC
0 csw 0 Regions 0 CPPE
This Recuest Meets OSWE3 Oi,ec:ives System Format
Signature at Lead Office Oirec:,ves Officer — I Oiii
/Ua’n i - - - • I i’f/’Z /8 1
Signature of OSWER 0irec iv,s Cjfhcet • [ oats
T ’V a7& - ( .f• Una’ —’ I 11/i 7/r
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. O ! . .
.1.’
UNITZD ST \TES ENVIRoM;v1ErlT. L P CTZCrIOi A’ 1CV
/ SHiNGTON• D.C. Z0 63
—
or- .c o
3OLiOWatS AND E: . PGENCy REZ 4
11E RP.NDUM
SUI3JECT: Hotification of estrictioris on Pc of rivace Party
Costs for Re ovai Actions
FROI: Henry L. longest II, Cirect’,r
-lffi’e-oY Emergency and Remeiia 1 (wH-543
/
TO: Superfund Branch Chiefs, Regions I—X
Ofl and Hazardous Materials Coordinators, egion i—X
the purpose of this nemorandur.i is to re ue that you ensure thdt
communities er a inf r . d of the restrictiie provi icns of CERC regarding
rehibursesient of orivate party res onse costs in carryir. cut the tiC?.
:tacnea is t::e stacu ory aria reguiatory languag governing privac party
re i r. ursement. The requirement for prior approvai conserves the F jn .s and
ensures that actions by others do not create further health cr eniircn,r.encel
tr reats.
!n ‘,era c :nrt’jn tjes, residents paid the costs icr hoc’dng—jp their
hames to the public water sup iy ihen iccal well water was found to be
contasiinated. Since this action was taken vi thG t prior EPA ap2rovai, the
residents coul 1 l not be reim5ursed frcm the Fund, even though the actions
taken were approved in the scope of work for that removal.
To avoid such situations in the future, when a removal action that
will affect private residences is aooroved , tne GSC snail attempt to notify
ail res dencs r.voivea tnat expenses ncurred by residents are incurred at
their risk and excense, and are not reimbursable by the Feaeral government.
When time Is sufficient for consideration of preauthorization requests,
the OSC should advise residents of CE CLA and F CP provisions regarding
private party re!mburse ent. Such notification might well involve printed
statements that only preauthori-zed actions by private parties are eligible
for reimbursement. Further. the OSC should e c .autious i making statements
— -that can be-cc, strue y conir.unity me cers as a ro n se ov EPA to reimourse
tnem tar c eanuo costs .
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I
Most Superfund cleanLp actio sn u1i b .n i y th re pon ible
party, by a State under a duly aiithor zed p r wIc( C’)fl r ct or cooperative
agreement, or by EPA ContrdCtor . Vary few p; vdtC 9arty re uthorizat on
are anticipated, and those that ar grari d wifl ccc :- u er traor itnarv
circumstances. Shouid e iona1 r sco e pe cnn. r cei•,. recuest f r
preautborizatfOn from a private citizen to ‘jn rta! e r mo;ai acti ,ns,
however, the request must he forwarded t Hea q:iart rs within five working
days of receipt. It should he sent to:
William 0. Ross
Hazardous Site Control Divisicn (WH 542E)
U.S. Environmental Protection Agency
Washingtsn, D.C. 2 5O
If you have any questions regarding this memorandum, please contact
Jackie Oziuban of the Emergency Response Division at (202) 332—2452.
Thank you for your cooperation in thi’ matter.
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ATTAC * E’I1
Section i11(a)(2) of CERCLA prTddes that none:’ ii tl e Fund iiay be used
for:
¶ayment of any claim for necessary response costs incurred by any
other person as a result of carryinj out the national contingency
plan established under sectIon 311(c) of the C I ears l ter Act and
amended by section 105 of this tit : Prn’iided, hcwever , That such
costs must be approved under said 2lan ai c cercified b; the responsible
Federal official.” (Emphasis In originaU
Section 300.25(d) of the National Contingency Plan provid s:
“If any person other than the Federal government or a State or person
operating under contract or cocpcr tive agreement with the Wiitad
States takes re ponce action and intends to ee reimbursament from
the Fund, such actions, to be in ccnfornity with this Plan for purposes
of se ticn lI1(a)(2) of CERCIA, may only b, reimoursea if such person
notifies the Administrator of EPA or his/her ijestr.n e irior to tadng
such action and receives prior apor3vaI to take suci action. ”
(Emphasis supplied)
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Analytical Support for Superlund
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LJr.ie Siaes tivu,ovimsfl(Ji Ag.nci
wawunq ov’ OC 2C460
iEPA OSWER Directive Initiation Request
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Analytical Support for Superfund
Summary at O.rec ivs
A review of alternative Superfund sarple analysis resources (CLP,
ESD, REI, FIT, TAT, ERCS, AI ID ESAT).
Genera]. guidance regar ing the use of the analysis resource given
above.
Request that eacn Region manage and monitor the use of said
resources via an integrated manage ’ent and tracking systens which
provides for:
1. a site project manager accoun able for specifying project needs.
2. an interface with the lab services of the ESD and the CLP.
3. a planning and scheduling function.
4. maintenance of a data base which includes sample scurces, where
sent, turnarcund times, cost and QA.
5. docjnented adherence to QA practices.
at srecuve jMjn j4I. P ftc, Qsrecsve. Annaw c m.ni. eicj Status
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-------
.%0 !?ap
.,
I UNITED STATES ENVIRONMENTAL PROTECTION AGZNCY
___ WASHINGTON. D.C. Z0460
)4 R 20
OFFICE OF
SOUO WASTE ANO EMERGENCY RESPONSE
SUBJECT: Analytical Support for Superfund
FROM: I enry I .. Longest II, Director
Office of Emergency and Remedi nse
TO: Waste Management Division Directors
Regions I — X
Environmental Services Division Directors
Regions I, VI, and VII
The purposes of this memorandum are:
o to review the alternati;e Superfund sample analysis resources
that are available to you;
0 to provide some general guidance regarding the use of these
resources; and
0 to request that each Region manage and monitor the use of
these resources.
The two principal sources of Superfund program analytical
support have been the Regional laboratories and the Contract
Laboratory Program (CL?). Additional contractor sources are
Remedial (REM), Field Investigation Teams (FIT), Technical
Assistance Teams (TAT) or Emergency Response Cleanup Services
(ERCS) and their subcontractors, and the Environmental Services
Assistance Teams (ESAT) Program. E.S’ T is currently being devel-
oped to supplement the Regional laboratory staffing levels with
contractor employees. We expect to have the E5AT contracts
awarded and operational before the end of the first quarter in
F’I ‘87.
As a general rule, the Regional labs should be used to
analyze samples where responsiveness and flexibility are para-
mount requirements. Analyses requiring quick response, methodo-
logy fine—tuning, and close interaction between the analyst and
the data user are best done in Regional labs. ‘.In FY ‘86, we are
using a total of 109 EPA work years to ar alyze samples, review
data, and manage sample woçkload in support of Superfund activi-
ties. In FY ‘87, we will supolement EPA resources with 100 ESAT
work years.
OSWER Directive No. 9240.0—2
-------
—2
The cr.p is the lahcratory service that should be used for
routine high volume sample analysis requiring consistency of
ethodo10gy, 30 to 40 day turn—around times, and data of known
and documented quality. Faster turn—around times can be obtained
,y using the Special Analytical Services (SAS) option of the
CL?. SAS-.can also be used to analyze unusual matrices with
non—standard methcdology. In addition, .SAS has frequently been
used to enhance routine CL? analyses by incorporating a desired
method or parameter change consistently across an analytical
case. In ‘f ‘85, the CLP analyzed 70,400 sampLes at a total
analysis cost of $32,998,143. The CL? will be able to analyze
over 80,000 samples in FY ‘87. It should be viewed as your
primary resource for the above described services.
The analytical resources available from the remedial and
removal contractors include both fixed laboratory support, and
nobile laboratories and portable instruments for use in the
field. The amount of support available from these sources is
limited when compared to the CL and must he effectively managed.
Attached are descriptions of emergency response removal, remedial
and enforcement progran needs and some suggestions on how the
remedial/removal ç ntractor resources can be used to supplement
the CL? and ESD activities.
The choice of whic t analytical service to use should be
driven by the data requirementS of each program activity. The
Regional laboratories and the CL? have well established and
recognized Quality Assurance programs. However, whenever they
cannot meet program requirements, you may use the other contract-
ing modes at your disposal as long as you assure that basic
requireTnents are met. In particular, you should be sensitive to
costs, to clear definition of work, to enforcement needs, and to
cuality assurance require tefltS.
Careful management of analytical support services is import-
ant because of the large commitment of both FTE and dollar re-
sources to this effort. The need for good Regional management and
coordination was emphasized in the May 17, 1 985 report of the
superfund Laboratory Services Management Review Group established
by the Administrator. Although several Regions have already
taken important initiatives in this area, I want to emphasize the
importance of including all artalyticaP services in this manage-
ment system. Specifically I believe that it is essential that
each Region have an integrated- management and tracking system
that meets the following requirements as a minimum:
i. Site project manager accountability for sp cifying project
needs and acquiring appropriate analytical services for the
project.
OSWER Directive No. 9240.0—2
-------
—3
2. point of interface with the laboratory seriices of the ESP
and CL? that can inform the project manager of the avail-
ability of these services and schedule sample analysis.
3. planning and scheduling function closely linked to the
overall site planning process and that will provide accurate
projections of analytical needs and close week—to—week program
contact on scheduled and actual sample shipments.
4. Maintenance of a data base to monitor costs and schedules for
remedial, removal, and enforcement samples. At a minimum
these data should include:
0 records on where samples were sent for analysis, i.e., D
lab, CL?, or other (e.g., remedial or removal) contractor
lab; this should be keyed to the source of the samples.
o data on turn—around times, cost, and QA requirements for
samples not analyzed through the CLP.
5. Documented adh ence to appropriate quality assurance
practices and procedures.
I believe it should be each Region’s choice as to what
organizational units should provide these integrated managei’ ent
functionS. ;iy concern is simply that the functions exist in each
Region and that they have the ability to both manage the process
and provide useful infornation to Regional and Readquarters
managers.
Attachment
cc: Environmental cervices Division Directors
Regions II, III, IV, ‘7, VIII, I X, and X
Carol Finch
Office of Regional Operations
Gene Lucero
Office of Waste Programs and Enforcement
OSWER Directive No. 9240.0—2
-------
QFMIPtL pqcGR, i ANAL(TIC L RE’Ut ET1 4T3
The prirlary reQuirement for na1ytica1 suocort under the remedial oroaram
Is the P.I/FS. Soecific requirements Include a variety f analyticol techniques
and protOcoLS tailored t war s ite epec fic reouirenents for Quantity.
Quail t ?. timeliness and c t. Four key pnases of ane1yt cal suoport have been
joentified within the R/F process:
p.’ s ,-. IITI,iL C: CT 0!!ATIQN __ The first phase is the up—front
field analysis to character :e the probLems at the site and the probable extent
o contamination. The key requirements of this phase are the ability to take a
fairly large numoer of samples and perform the analyses quickly and
inexpensively. This may be accomplished through portable field instruments and
mobile laooratonies operated by the remedial contractors. The information
provided by this process Is used to design the second priase of sampling.
E .5..E Z TPt iC.J S, MpL!P $ 5 __ The second phase entails a more
focused sampling to ac urstsly define the extent of contamination. This
information is usec during tne feasibility study to support the development and
evaluation of alternative remedi L actions, end during the ROD process to
support key decisions on the apcropriate extent of remedy and selection of the
c t effective re edy. Therefcre QA/QC requirements are essential. The
primary anaLyt c3l rescur:e for this phase is the CLP, wIth judicious use ef
E50 or remedial c3ntract:r laoratories to meet special program requirements.
PI A5E 3— FtL’ 1G !N C 7A S ° — — The third phase is best characterized
as fillLng 1n the data ;a s ident&.f&ed during the feasibility study. These
are normally highly fo: se samples des gned to answer particular questions
regarding the analysis of alternattves or determining the extent of remedy.
Quick turnaraund Is a key concern for these analyses to avoid delaying the
completion of the project; however, data quality must be commensurate with the
Intended use of the data in the decisionmaking process. Sources available for
these analyses Include the remetha! c ritractor in—heusa laboratories, special
analyt cel services uncer the CL?. and the ESO lab.
Pw 4 OQJ l E’l t EE°!NG— — The fourth phase involves pectal
analyses to sucport ber.c e”d pilot scale testing and treatability studies to
assess the technical pefornance of a part icular technology or to provide
engineering date for renethal dest;n. Normally, this work is doria by the
remedial contractors.
Two efforts are currently underway which should batter define these
requirements. The first is the development of Data Quality Objectives (OQOs)
for RI/FSs. The OGOs will cefine on a site specific basis data Quality
requirements for the var cus decIsions that are required during the Rl/FS. The
second Is the Rl/FS pilot ;rogram which is Intended to improve the quality and
tImeliness of the RI/FS through closer integration and phasing of data
collection activities with the feasibility study components of remedial
alternative development, screening and evaluation. These efforts will provide
more detailed criteria on the various sources of analytical support, QA/QC
requirements, end the best way of integrating these into the RI/FS process.
OSWER Directive No. 9240.0—2
-------
(1AL!l 4 LAL ‘ . -
The emergency response program requires analytical ser,ices throughout the
response process. Phases of an emergency or removal action that may require
analytical support include: 1) preliminary assessment to detdrmlne ‘ tiether an
emergency response Is appropriate; 2) site investigation, including verification of
the identity, concentration, and/or location of hazardous substances, including ddtQ
to support selection of the aopropriate removal action; 3) proper disposal of
contaminated materials; and 4) verification that the removal action was effective,
including site ’samples to decemine full cleanup and long—term monitoring. Each of
these activities requires that the Region specify, the analytical needs consistent with
the incident to be addressed. Considerations include analytical services, turnaround
time, quality assurance (QA), and cost (see table below). These considerations can
vary by the phase of the response, and whether the incident is a clear-cut,
time—critical emergency or a removal action where timeliness is needed, but not
critical.
Generally, either TAT or ERCS obtains analytical services with the approval of
the OSC. Use of CLI’ Routine Analytical Services (RAS) is generally Inappropriate If
turnaround times of less than 30 days are required. However, CLP Special Analytical
Services (SAS) may be able to provide turnaround times of 14 days or less if special
requests are suomitted. Support from Regional or State laboratories also should be
considered. Regional laboratories may be able to provide cost-effective, rapid
analyses through the ESAT program. When the CLI’ or Regional laboratory mechanisms are
not utilized, TAT obtains laboratory support th,rough TAT Special Projects. ERCS
contractors often relj on OSC or TAT recommendations, or in some cases, access private
laooratories based on pre-existing verbal arrangements.
I
C0NS [ 0E ATtONS FOR REMOVAL PROGRAM ANALYTICAL NEEDS
(importance of Time, QA, and Cost)
Preliminary
Assessment For
Emergency Resoonse
II
Site
Investi gation
III
Disposal
Screen
IV
Verification/
lion ito ring
High, particularly
if acute threat of
human exposure to
high-hazard sub-
stances.
Medium. Need
usable data, but
not high QA at
expense of timeli-
ness.
Medium. Reason-
able turnaround
time needed for
removal decision
process.
H.igh. Need ver-
iflabie data to
make removal
decisions, doc-
ument for cost
recovery.
Medium.
Reasonable
turnaround
time needed
to proceed
with removal
action and
disposal.
Medi urn.
Data quality
does not need
to be high
or waste
compatibility
and disposal.
Medium/Low.
Verification of
cleanup during
and after re-
moval requires
better turn-
around time
than does long-
term monitoring.
Medium. Need
usable data,
but not high
QA at expense
of cost con-
siderations.
Cost Low. Other
considerations are
more important in
a s ispected
emergency.
OSWE Directive No. 9240.0—2
Medium. Stan-
dard analyses
and medium time
frame allow more
cost considera—
-ion.
High. Stan-
dard analyses
and medium
time frame
allow more
cost consid-
erat ion.
High. Stan-
dard analysis
and longer
time frame
allow acre
cost consid-
erat ion.
Ti me
QA
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ENFORCEMENT ANAL TICA [ . REQUIREIENTS
The enforcement analytical needs fall into two categories:
1) RI/PS and 2) case support. The majority of the analytical
needs for’ ënforcemeflt are for RI/FS on enforcement lead sites.
Since these studies are being done by th.e same contractors who
conduct RI/FS for Fund lead sites, the remedial program analytical
requirements also apply to these studies. For the second category,
civil case support, analytical needs can arise long after the
RI/FS is completed and limited data are needed to support a file
case. In this instance the preference is to utilize the Regional
and other EP A laboraories. However, each Region should decide on
a case—by—case basis how to manage its resources, and judicious
use of CLP and other contractor analytical services may be neces-
sary. For those sites where samples are taken for criminal case
support, only EPA laboratories should be used.
OSWER Directive No. 9240.0—2
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Guidance on Producing Supertund
Guidance Documents
-------
CS ER DtRECTIV 9200.4-1
QJ!D .IINES FOR P ØJCDG SUPERFUND DOCJM L’S
I. ISSUE srAT 4 T : The purpose of these guidelines is to provide writers
of Superfund docLunents with assistance In writing guidance doc .ments that
are sore usable and accessible. Guidance doct ents which are well—written
can be e çected to result in greater program effectiveness.
II. cE 7rtvE SUI1IARY
These guidelines address the reed to iniprove Superfurid guidance docu-
ments for the benefit of users. They are designed to assist writers of
guidance to produce doctments that are readable, concise, well—referenced,
and to the point.
Quality in guidance is necessary because a significant nu ter of
guidance users are decentralized, receive quantities of information
denanding their attention, and engage in a variety of tasks which require
initediate access to information.
This doctnnent also addresses issues of availability, cross-referencing,
indexing, and follow-up contacts. Writing techniques are suggested that
can result in streenlined dociments written in clear English, and that
provide an appropriate level of detail. Formatting suggestione are made
to facilitate condensation for use in field manuals or electronic indexing
or filing.
It!. I!Il WCItQ4 AND B JND
Reautk rized Superfund will generate a considerable voli.me of additional
guidance. Many aiperfurd guidance users are decentralized in gicnal, State,
or field offices aid e.ist address cczt lex Issues which require inzediate
answers under field conditions. They need doc nts organized for easy,
quick acesis with .içhasis on readability ard conciseness. The reader should
be abl• to u srtain wher. additional written information can be found, and
which iidtvlàaal. within the Agency can provide additional information.
These problse can in part be addressed by the way in which the
guidance is written. These guidelines suggest certain techniques which
can assist the writer In obtaining the desired result. They also discuss
cross-referencing, instructions for entry in the C 4ER Directives Systefl
and contacts for securing additional information. The end result should
be to assist the writer in preparing a sore usable docuient.
-------
0S R OiR CTtVE 9200.4-1
A. Pu P 5 of Guidance
—2—
superfund guidance is primarily intended to help users iaçle ent the
program effectively and consistently. Individual doctresnts may be designed
to serve one or n re of the following parposes:
°To provide information and direction regarding procedures, policies,
and technical developi ents which assist program personnel in conducting
daily business uniformly and consistently throughout the country. This
establishes ‘a pattern for solving specific types of problees.
‘In lieu of regulation. Wiere regulations are silent, and formal
policy doc .ments are inappropriate, guidance doc zients can provide
general direction to assist the user In solving particular types
of problems.
‘ a a response to requests for assistance frau persons i1z leuRnting
the program.
In Superfund, the actual writing of guidance usually ocours in Head-
quarters program offices, developed by Ekgroups which represent a s-
section of the users. H ver, it can originate fran tcp-down or bottan-up,
depending upon who perceives the need for the guidance and who initiates
the process. th of the Superfund Guidance has been developed thraigh a
bottaa-up procedure, with significant contribitions caning fran Regions,
States, and other user groups.
Guidance should be used for the sene variety of reasons that it is
written: to assure the consistent, effective lnçlenentaticn of the
program. I ile guidance is Intended to be flexible, e.g., to be applied
to a situation consistent with best professional judgenent, it can also be
used to strengthen the manager’s position in handling unfamiliar situations.
B. 1 ypes of Guidance
Currently, four type. of non-regulatory Superfund docunerits are
produced aid generically referred to as guidance $
• Guidance Docunents - — , 4 L Z. L ,’iC4.
• Procedural aanents - &, , w.. . ‘-r -’ .-
• Thchnical Do ments - 4J Z. A J
• Hern als -. 6# — ..
Each se ,es a different function, as discussed below. Individual docu-
nents may stand alone or make reference to others; taken together, they
form a body of Information which establishes pattern and practic. as the
program matures.
Guidance Docurents explain what can be done to fulfill the require—
inents of a regulation or policy.
Generally, they cover a subject broadly and even ca çrehenaively, but
-------
WER ia criv 2OO.4-
—3—
should not spell out specific steps of an approach. Instead, they explain
ideas which might be considered rather than how a required analysis or
test might be nducted; or they may describe an analytic process, but do
not discuss the machanics of carrying oat the process.
D(N4PLE: Guidance on Ramedial Investigations and Feasibility
Studies Under RCLA; Relationship of the Reiuval and
Re dial Program Under the Revised NCP
Procedural cunents describe specifically how to conduct an analysis
or activity; they provide a sufficient level of detail to ccit lete an action
without need for additional guidelines. They often provide a step-by—step
procedure for conducting an action, including ho. to fill oat forma where
appropriate. They may also deal with the concrete mechanics or methods
of an operation.
DCNIPLE: E S Contracts Users’ Manual; C .iality Assurance/Field
Operations Methods Manual
1 chnical Docui nts provide scientific or engineering information
relevant to program activities. They act as reference docusents for use
in cauplying with requireuients, but do not explicitly relate the technical
information to requlr nts. They are often products of scientific r arth
or develcpeent conducted for program support.
DCAMPLE: Renedial Action at Waste Disposal Sites; ? bile TreabTent
technologies for Superfund Wastes
Manuals ccrbine features of all of the abuve categories, particularly
gui dance and procedural docuients. They enable users to carry Out the
program activities or requir ents discussed without need for other supporting
program doctments.
DCAMPLE: Public Health Evaluation Manual; ( ‘ ,liancs Manual
IV. QJIDELINES FOR WRITING SUPERPUND CLJIE!1IS
A. Keeping the L er In Mind
Users of guidance represent a cross-section of individuals having a
wide variety of responsibilities. Guidance is used in Headquarters to
define t program and to measure the prO n’S effect when assessing
results. It is used by Regional and State ninlstratlv office, to pro-
vide direction to office and field staff and to contractors and P s.
Sane of those in the latter categories may have little or no knowledge of
the inner workings of EPA or the Superfund Thus, the guidance.
canbined with direction or verbal information obtained fran ency personnel,
may constitute the basis of their experience with the agency.
In addition, field personnel who are away fran their offices for
long periods of tune, with limited telephone access and limited storage
and transporting capabilities, require docuients that are accessible
as well as brief, transportable, and concise.
-------
CSWER Dt ECrt ,t 2O .
—4—
Insofar as possible, when creating a guidance document, writers
should consider the audiences. The bottan line is that if the guidance
is not (1) accessible, (2) readable (3) brief and to the point (4) clear
and (5) traz portab1e, it probably will not be read—and if it’s not
read, it will not be used.
B. Structuring a Q idance ctment
Field and program personnel who rk with a wide spectrtm of problems
reed doc s ents that are easily and quickly consulted to provide inriediate
inforniat ion. They do riot have tine to search volusinous material to
secure an ar s’ er to what appears to theit to be a straightfor rd question.
A consistent format saves many hours of research tine for the user.
The following proposed structure allows the reader to beouns quickly
oriented to the issues at hand, then proceed to in-depth material which
can be absorbed as tine allows.
• Issue Statement - The docimient should begin with a clear, concise
stataient of the issue to be discussed.
• cecutive Suitnary - This section serves t purposes, and may also
be serving several different audiences. First, It should enable the
reader to quickly determine if the docunent is pertinent. It sketches
the nest important points, and indicates where in the docunent nore
in-depth information is contained. Secondly, it can convey a basic message
to the policy manager who may never read the entire docuient. In many
doci.anents, it also acts as a briefing for upper level managers regarding
the major policy issues e.m died in the larger docirent.
• Introduction and Background — This section introduces the material
to be presented, may provide historical reference, cites pertinent regula-
tions, statutes or other existing docunenta and sources of related infor-
mation. It can also provide lead-in for the prescriptive material which
follows in the next se ient.
• Prescriptive Material • This se nent provides any prescriptive
material applicable to the matter at hand, flagged or underlined. (Pr.-
scriptive material is defined as that which is mandated or required by law
or reculatt i.)
• Inforinat ion. The narrative that constitutes the actual
guidance s p re, together with eas . studies, exesples, and other
appropriate illustrative material. This provides the next level of
detail for th. reader iEio has concluded that this doctment addresses the
needs of the situation and r wishes In-depth information.
• ferencing Section . This segment includes cross—referencing
to other docuients, Identif led by their OSWER identification nisi er, if
available; or by their date and source where rio 05€R r .aIg)sr has been
assigned. In addition, it should include the nene of a contact with
phone nimter for obtaining further information. Larger, sore cx npreheri-.
give docuients might include glossaries and indexes.
-------
OSWER DIRECrIVE 9200 .4-
—5—
C • Language and Strearul mi ng Techniques
The choice of language affects the user’s ability and/or willingness
to impletent the guidance. Because guidance, by definition, is not
prescriptive unless it cites specific regulatory or statutory requirements.
the language style should be flexible rather than rigid. The iicst c n
illustration of flexibility Is the use of may, which is flexible, rather
than uglUstu or ushall, which connote inflexibility.
n guidance contains prescriptive material, it should be referenced
back to the appropriate regulatory or statutory citation. It is then advisable
to separate or set off the prescriptive material by means of starring,
flagging, underlining, or paragraphing 50 that it stands out.
streamlining means coning inrediately to the point or heart of the
matter with a mininimt of verbiage. It results fron visualizing the
finished product and producing a final doc ment that mirzozTs this concept.
Below are a series of suggestions which can assist the writer in
producing readable, usable guidance.
Oitline the docunent , and write fron the outline. O.ztlinss reed
not be formal; they can take the form of concise bullets that
beccze the organizing points for the docunent, and can even be
developed into topic sentences. Picture the user and the constraints
under which that individual operates. Visualize the final doctirent
and its intended purpose for the program and for the user.
Establish a style consistent with the purpose of the docutent.
Ranain with that style until the docLment is canpieted . ithile style
can be Individual, it is also true that each of the four docunent types
has its own style, and that style has an effect on the reader.
For example, technical docuients which inform the user of new tech-
r logy or new information tend to be i t effective when the style is
concise and direct.
Procedural docunents often set forth specific steps, tasks, or
operational steps which the reader is to follow. Thee. doctments are
s t1. the least flexible of the four types. the tyle should be
sbçla and straightforward, with c iplet., di!ë *..entenoes. E tçhasis
should be on an orderly, clear presentatioG. 4’
Qiidance docunents frequently offer an array of options and case
studies, to which the user may apply best professional jud nent in
adapting to the situation at hand, within the broad parweters of
the guidance. The writing style can be sanewbat r re flexible and
expository.
Manuals, in that they stand alone in implementing part of a
progr ! quently ca ine elements of the other docutents. They
may be the ncst lengthy of the four, and may include technical
information with specific procedures and an array of options. Style
-------
OS’v ER Dr REC VE
-6—
will therefore e r e as a ca posite of the others.
In selecting the appropriate style, it is useful to re Tiu r that nouns
and action verbs written in the active voice supply greater poier and enpha—
sis than writing with adjectives and adverbs and In passive voice. Further,
impersonal language increases the rigidity or Inflexibility of the docunent.
The language used in a regulation or directive Is tore impersonal than
that used in a simple menorandun.
For example:
Rigid : UTO C ii 1 ly with this provision, the owner/operator
rmist determine whether a bulk hazardous waste is a liquid
or contains free liquid. EPA regulations define free
liquids as liquids which readily separate fr a n the solid
portion of a waste under ambient tençerature or pressure.
(40 CFR 260.10)...EPA believes that the Paint Filter Liquids
Test is the appropriate test to be used to determine the
absence or presence of free liquids in bulk and containerized
waste.
(Note the prescriptive material qt ted and referenced)
Flexible: ‘This step is designed to facilitate responses to clear-
cut, time-critical eterigencies for which only limited data are
available. In those cases, OSCs may have to rely primarily on
findings of the preliminary assesenent, without significant
additional data collection... . ere the CSC h s determired that
the incident is not time-critical, a sore thorough analysis...wlll
before recaTeriding a.. • response.”
‘ Limit explanation . Select simple rds and anit needless rds. The
reader has limited reading time. ‘Less Is sore’ is often a useful concept
in goverrinent writing.
For example:
ccessive tail : ‘Inpienenting the notification pr greu will
require both staff time and the direct expenditure of funds. You
will find guidelines on typical costs of various activities through-
it this handbook. The available funding and staffing level will
have an impact, for exen le, on how extensive the public education
psogr can be and which methods of form distribution can be used.
State budget allocations will also impact the types of activities
possible. Sane states will find that they have adequate staffing
but little soney to pay for printing and travel, while other
States may experience the opposite.’
O ncise : The scope of the rulenaking will be limited to nianiclpal
landfills because, currently, reliable data on which to construct
and defend sound Criteria exist only for municipal waste landfills.
Moreover, by limiting the rule, the Agency can e ct to pramilgate
the revisions within the Statutory deadline of March 31, 1988.
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WER DIRECTIVE 9200—4 .1
-7—
Avoid unexplained acrcn ne, unexplained technical terms, and prngrw
s if ic I not rt of the neral a rience of the reader. The
st e Agency practice c wr ting a rase in u wi acronynt in
parentheses at the beginning of the article is helpful. Even so, asstmçtions
that the reader has the sane working knowledge of the subject as the writer
can be unwarranted. Many readers find theneelves Intensely irritated at
g ve ent writing which requires the constant translation of acron ns
and jargon. In extensive docinients requiring acronyms, inclusion of a glossary
can be helpful.
F r example:
(1) “You should begin exploring mechanine to inçletent
CA’s with OFA Regional counterparts early in the F!
about sites in Regions targeted for CE LA action.
This should be accxinpllshed by review of the NPI.,
the SMP, aid the SCAP. The SCAP neibnents should
be reflected, as appropriate, in the SEA’s for your
Region.”
(2) You should begin exploring nechanimne to izrplssent
cooperative arrangeaents with Office of Federal
Activities (OFA) Regional counterparts early in the
fiscal year. This should be acculVlished by review
of the National Priorities List (NFL). the Site
Managenent Plan (SNF), and the Superfund C wg re —
hensive Acc içlishsents Plan, (SCAP) • The SCAP
cuir itmants should be reflected, as appropriate, in
the State/EPA Agiee nts for your Region.”
•Stminarize when appz riate . (isa of . r’neries depends upon the degree
of canpiexity of the material being presented. Imen the material is lengthy
and xm% lex, it say be useful to e ruaarize at the end of sections or
chapters, or it may be useful to present a final a.iw ry at the end of the
doo nent. Another effective technique is the uss of b.illet points at the
beginning of sections to highlight main points. In addition, careful
construction of th. Exeoutive Susnery assists both writer and reader in
keeping to the point.
eIP revising and rewriting , lock for redundancy, strive for clarity,
and re detail * sn possible. Then recheck the editing to be st
the meaning baen’t been 10t. Short, c zm lets ssnter s placed in logical
order with logical paragraphing_simplify the work of the reader. All para-
graphs should have topic sentences at the beginning or the end. The final
editing effort is the cai arison of the finished product with the writer’s
initial concept and the mental picture of the user. How wall do they match?
Will the reader be able and willing to understand the writer’s nessage?
Only when the match La achieved, is it tine for others to review the doc .nnent.
D. ntent.
Appropriate Level of tail . There are two considerations with re-
gard to detail. The first is that the level of detail should be apprcpriat.
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os CMV! ‘200.4-.
—8—
to the docuesnt. As a rule, procedural dO v nt require the st detail
and specificity, technical doc’.m nts sanewhat less, and guidance doctr er ts
leastof th. three. Manuals will be a CW& Q9ite and should have a level
of detail appropriate to the subject.
secondly, consideration should be given to the e cunt of detail needed
by the various users. mile the material IMy be applicable to a variety
of situations, saes users may need less detail. re ‘tore detail is
required, it should be presented and organised so that it does not distract
such users.
It is the writer’s job to determine the appropriate level of detail in
planning and outlining the doc .mant.
Technicall Correct . 11 e writer is responsible for presenting a
final nt t is technically correct and to nduct whatever reviews
and checks ar. necessary to assure that the docLltmnt is in fact correct.
prescriptive Oily *ien Required . Qaidance should be assiiesd to be
guidance unless otherwise stated. u5 t professional j tlji nt should
be assiated unless the doc ment specifically flags prescriptive (mandatory)
material. Iten these flags are present, statutory or regulatory references
should be cited, as veil as appropriate back-up policy or precedential
material. Otherwise, flexibility should be assisied and language should
be constructed accordingly.
Filing, Indexing, and Fbllow-t Information have been discussed in
Section 8. Hovever, each doc*mmnt should end with a section that provides
assistance in obtaining additional data, and in filing and cross-referencing.
E. Classification .
fl c .iesnts have been classified for general use in the Superfurd
Program. Th four classification types previously discussed are designed
to be broad and flexible, while giving users a clear idea of the kind
of information presented in each. As the system evolves, it is anticipated
that each kind of doc nt will be identified by a characteristic cover
which makes it easily identifiable.
In additlcn to th Superfurd classification system, each doci.mnt
will, of c aee, be assigned an 0S€R Directives t er and be incli sd
in that irdacing system. Beyond that, institutional users (Regional
or Stat. cai s, others) may wish to develop their own Internal filing
or reference system. The classification system, plus the Issue Stateesnt
and Executive &xanary at the begirming of each do ment, will facilitate
the design of such a system.
(F) nsiderations in Publishing a ctmient
O a doctaesnt text has been prepared and approved for publication,
a variety of publication requirements and procedures are triggered. Since
these axe isportant in assuring that all agency requiL Th nts are test, they
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cE JER DEREC tVE 2OO.4-1
—9—
will be the subject of a subsequent procedural guidance. Ccordination of
publication procedures is the res nsibi1ity of the Office of Progran
Managenent, OCRR.
U -UP INFO 4 !ION OR C NTACL’S
(1) For general writing Information — ThE ELEMDI1’S OF Sr LE, by Willien
Strunk, Jr. and E.B. W ite, Third Edition, MacMillan Publishing Co.,
Inc., New York 1979.
(2) For information about OSWER Directives Systen — ntact Sherry Fielding,
OSWER Directives Coordinator, Inmadlate Office, Assistant nlnistrator
for Solid Waste and nergency Planning — rrs 382—4483
(3) For information about the Guidance Review Project or RR Guidance,
contact Arthur S. Waisenan, Policy Analysis Staff, Superfund Progrmn,
rrs 382—2182.
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Comparison of EPA and Commonwealth
of#Kentucky PCB Cleanup Standards
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COMPARISON OF EPA AND COMMONWEALTH OF KE 1TUCKY
PCB CLEANUP STANDARDS
The following paragraphs briefly sun narize EPA and Commonwealth of
Kentucky Statutes applicable to PCB cleanup standards. In the case of the
EPA regulations, some of the contaminant levels are regulatory standards,
while others are simply recanmended levels. -EPA standards will soon change,
as described below. The Kentucky cleanup standards for PCBs are based on
general language in the Kentucky Hazardous Substances Statute as described
below.
EPA
EPA has established various PCB cleanup standards or recommendations
under the Toxic Substances Control Act (TSCA), the Clean Water Act (CWA),
the Safe Drinking Water Act (SOWA), and the Canprehensive Envirorinental
Response, Cleanup and Liability Act (CERCLA). While TSCA currently has the
major role in PC3 re’julation, the EPA has announced its Intent to further
regulate PCB wastes under the Resource Conservation and Recovery Act
(RCRA).
TSCA
Under Section 17 of TSCA, EPA considers spills, leaks, or other
uncontrolled discharges of PBCs in concentrations equal to or greater than
50 ppm to be improper disposal of PCBs. ISCA Section 17 provides EPA with
the authority to compel responsible parties to clean up spills at such
levels of contamination.
A recent “TSCA PCB Cleanup Policy” (signed 3/20/87 and effective thirty
days after publication in the Federal Register) will establish PCB cleanup
standards for the majority of PCB spill situations. Certain spill
situations described In that policy will not, however, be subject to these
standards, based on site—specific conditions and the discretion of EPA
Regional offices.
Spills, leaks or other discharges occurring before this policy becomes
effective have been or will be cleaned up to levels ranging bet een
background and 50 ppm depending on Regional discretion and site
characteristics.
CWA
Under the CWA, EPA set contaminant levels, based on toxicity and risk
assessments, for adoption under state programs. These are not regulatory
levels by definiton, however, they will function as such under state
authority. The states must set levels that are at least as strict or
more strict. The CWA recommended maximum levels are 2 ug/I (24—hour
average) for freshwater, and 0.03 ugh (24—hour average) for saltwater based
on acute toxicity to aquatic life; and 0.79 ng/l (based on 10
lifetime cancer rIsk), 0.079 ng/l (based on 10.6 lifetime cancer
risk), and 0.0079 ng/l (based on lifetime cancer risks).
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SOWA
Under the SDWA, EPA has suggested levels of maximum allowable
contamination. These health-based levels of maximum PC3 contamination
include the 10—day health advisory levels of 100 ug/day (children) and
700 ug/day (adult); and for Aroclor, 100 ugh (child) and 350 ugh (adult).
The Agency will recommend a cleanup level of 0.005 ugh for PCBs in drinking
water based on a iü lifetime cancer risk.
CERCLA
CER LA recommended cleanup levels are based on the consideration of
soil/air partition coefficients and the potential for ingestion, and dermal
and inhalation exposure. There is currently insufficient data to develop
advisory levels for one-day and long—term, non—cancer effects. The
non—cancer 10—day advisory level is 42 ug/g on site, and 47 ug/g, based on
inhalation exposure, at the perimeter of the site. The chronic Intake
advisory, 10—0 cancer risk (upper bound estimate) is 0.6 ug/g without
cover, or 6 ug/g with 25 cm of clean soil cover (i.e., PCB c 0.1 ppm), on
site; and 2 ug/g without cover, or 20 ug/g with 25 cm clean soil cover, at
the site perimeter.
Site-specific factors, ARARs, and Regional discretion each play a role
in CERCLA final cleanup levels. ARARs include TSCA, CWA, SOWA and the
guidelines, standards and recommendations of the Food and Drug
Administration, the American Conference of Governmental Industrial
Hygienists, the National Institute of Occupational Safety and Health, the
National Academy of Science, and the Occupational Safety and Health
Administration. Current RCRA regulations pertain to PCB disposal
requirements.
The Regions have discretionary authority to set more stringent cleanup
standards on a site-by—site basis. Region IV, which includes Kentucky,
adheres to TSCA cleanup standards.
Kentucky
Kentucky cleans up hazardous substances to background levels wherever
practicable. This standard is based on Kentucky Revised Statutes (KRS)
224.877. “Definittons—Regulations—Noti flcation—Minimization—Emergency
plan—Powers of department,” paragraph (4) as follows:
“(4) Persons having possession of or control over a hazardous substance
being discharged or who caused the discharge shall take the actions
necessary to restore the environment to the extent practicable and minimize
the harmful effects from any distharge Into the air, lands or waters of the
Commonwealth.” -
As described by Alex Barber, Kentucky Department of Environmental
Protection Division of Waste Management, Kentucky cleans up PCBs to
background levels unless it is not practicable to do so. Such a situation
may arise when soil contaminated above background is removed down to
bedrock. Generally cleanup to background levels will result in lower
cleanup levels than EPA’s 50 ppm action level.
-------
Kentucky may allow Contamination up to 10 ppm, if tile Site is covered with a
state—approved cap.
PCB contamination in water is regulated by 401 Kentucky Administrative
Regulat1ons 5:031 Section 4. The state Standards are based on CWA Section
304 crIteria. The state standard for ambient warm water is .0014 ppb. For
finished water the standard is .0013 ppb, based on SDWA.
Summary-
EPA’s specific standards and recommendations provide for protection of
human health and the environment at PCB cleanups partlculary as ARARs are
Incorporated In CERCLA cleanups. The Kentucky cleanup to background may, In
some cases, exceed ERA cleanup standards. Kentucky water standards for PCB
contamination are based on the federal CWA and SOWA.
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Concurrence on Payment of Relocation
Costs for Business During Removal
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON 0 C. 20460
JUN 15 J T
LIEMOPANDUM
SUBJECT: Concurrence on Payment of
Costs for Business During Ren
Henry L. Longest II. Di
Office of Emergency and Remedi ponse
J. Daniel Berry)ç72. 1 )’ /
Associate ‘.enerall Counsdl
Grants, Contracts, and eneraJ. Law Division
TO: Stephen Luftig, Director
Emergency and Remedial Response Division
Region II
Douglas B. Blazey, Regional Counsel
Region II
You have asked for our concurrence in the use of the
Hazardous Substance Superfund (the Superfund) to pay costs
associated with the relocation of a business during the course
of a removal action carried out under the Comprehensive Environ-
mental Resconse, Compensation and Liability Act, as amended
(CERCLA). Given the equities in this particular case, it is
our view that it is appropriate to reimburse the business for
temporary relocation costs. Any costs related to business
losses are, of course, not reimbursable from the Sup.rf md.
As we understand the facts, EPA took a removal, action in a
building at the Signo/Mt. Vernon, New York site in which RPM,
a laminating company, conducted business. EPA advised RPM that
it could not safely operate its business while the removal team
was working. Subsequently, the Occupational Safety and Health
Pdministration posted a notice of Alleged Imminent Hazard in
the building and the county health department issued a Notice -
of Closure. The Agency for Toxic Substances and Disease Registry
also rec m,nded that RPM be excluded from the building because
of the potential threat to its employees. RPM moved its operations
to another location and is seeking reimbursement for its costs.
Section 101(23) of CERCLA defines removalN to include such
actions “as may be necessary to prevent, minimize, or mitigate
damage to the public health or welfare or the ecivirorunent, which
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—2—
may otherwise result from a release or threat of release. The
term includes, in addition, without being limited to .
temporary evacuation and housing of threatened individuals not
otherwise provided for . • N You have suggested that this
authority is sufficiently broad to include temporary relocation
of businesses as well ae.reeidents. We agree that the statute
can be read to support such an interpretation.
We intend to address the temporary relocation of businesses
during a removal action under the relocation function. delegated
to the Federal Emergency Management Agency (F 4A). We are
currently working with F 1A to determine the appropriate reim-
bursement for RPM, and to develop guidance and regulations for
any future temporary business relocation.
We understand that PEMA’s regional office will be working
directly with you to develop the information necessary for
RPM’s reimbursement. If there are any questions on this matter,
please contact Tim Fields or Lisa Guarnejrj at FTS 475—8110.
cc: Walt Kovalick
Tix:iothy Fields
Hans Crump
Linda Garczynski
Mark Mjoness
Lisa Guarneiri
Michael Hirsch, FEMA
Dennis W. Kwiatkowskj, FEMA
Charles Robinson, FEMA
Fred Rubel, Region II
Charles Region II
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION II
DATE: MAR 2 31987
SUB.ECT: Attached Memorandum R i
Christopher agget
FROM Regional
TO: Francis S. Blake
General Counsel
location Costs of a Business
Winston J. Porter
Assistant Administrator
Solid Was e and Emergency
Response
Enclosed is a copy of a memo that Doug Blazey and Steve Luftig
have sent to their colleagues in your offices requesting assist
ance on a particularly novel question. I feel we need an answer
quickly and wanted you to know that the principles in RPM have -
been in contact with Lee’s and my office regarding their plight.
I feel we should assist them and am sympathetic to many of the
points they raise. It is likely that we will be sued if a fLnan
cial settlement is not reached. I believe the general public
expects Superfund to support some reimbursement for a displaced
business assuming we are statutorLly authorized to mak•e such
payments.
and
Tour interest in this matter would be appreciated.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
‘MAR 2 01987 REGION II
Relocation Costs of Business in Removal A ton
J\ c.
DouglasR. 1 and Step en .a :ig, Director
FROU• Regional Co .Emergency and Remedial
5 Response Division
TO: 3. Daniel Berry, Acting and Henry C.. Longest XI
Associate General Counsel Director, Off ics of Emergency
for Grants and General Law and Remedial Respons.
This is to advise you tnae Region II would like to use Fund
money to cover a business’ relocation costs resulting from
an EPA removal action. It is our understanding that the Agenoy
has never done this before, theretore, we would like your concurrence
on tnLS action.
I. ;ACKGROUND
RPM is a small fa iily operated laminating company, wnicn employs
22 people and is located in Mt. Vernon, Westcnester County, New
York. RPM rents a portion of the 2nd floor and all of tne tirst
floor of a building Located at 200—208 S. l4tn Avenue, Mt.
Vernon, New York. EPA is undertaking a removal action on a
portion ot the second :!oor and the en ire tnir floor of tne
same ouilding. The removal action involves the removal of various
snoc —sensjtjve explosives, flammable liquids, flammaole solids,
poisons, comoustibles, oxidizers and acids.
EPA advised RPM enat it could not operate ts business wnile EPA
was physioalLy conducting removal a tiviti -inside tne buildLng.
EPA was Concerned not only for RPM’s safety during tne physical
removal activities in the building, but also for tne removal
team’s safety while undertaking the clean—up operation. EPA
further advised RPM tnat t had no oo3ectjons i: RPi worked
during the evening when the removal team was not actually work ing
in tne building.’ Subsequent to tnis, the Occupational Sat.ty
and Health Administration (OSHA) posted a notice of •Alleged
Imminent Hazard” and tne Westchester County Department of Health
(“DOff”) issued a Notice of Closure. The basis for DOff’s ilotice
of Closure was the hazard RPM’s presence mignt have on the general
puolic. In addition, the Agency tor Toxic Substances and DLsease
Registry (ATSDR) recommended, initially in a January 1987
letter and in at least two documents in February 1987, that RPM
e excluded from the building due to the threat to RPM and tne
surrounding community. Unable to conduct its business in the
building, RP 1 made arrangements to move some of its lighter
e ’iip’ient to a temporary location where tne work tnat could e
pertormed, i.e. cutting, was performed and tne remaining as’ects
OL the work were subcontracted out.
/From the beginning, the OSC tnougnt it would be appropriat t
compensate RPM, if possible, for its bases and asked ORC to
investigate tnis matter. As the removal action progressed,
however, the issue crystillized into wnetner RPM’S relocation
costs could e compensated.
REOtON It FORM 101 (9185)
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—2—
After being excluded from the buiUing for several weeks, aPi
purchased an option to buy the building, at a cost of allec dly
$50,000, where it had temporarily located it2 cutting operation.
Eafore RPM exercised its option on 1 the new building. OSHA & 3cjflded
its Notice of Alleged Imminent Danger and the Westcrieseer County
Department of Healen rescinded its Notice of Closure. Alt ougn
ATSOR did not rescind its recommendation, RPM was permjttec t
re—enter the building.’ Under an agruement reached with tie On
Scene Coordinator, RPM is permitted to wor 1 day a week ar.
evenings, when EPA is not in the building working.
The Region feels that we can compensate RPM, using money from the
Hazardous Substance Trust Fund, for its re—location costs to the
temporary premises. ‘
RPM has requested payment for relocation expenses to the temporary
location as well as expenses it will incur in a complete and
permanent move to the temporary location. The issue of what
costs are eligible for reimbursement is a distinct topic from the
narrow question of whether we are authorized to pay any business
relocation costs under CERCLA. As you may know, EPA has ir.teragency
agreement with the Federal Emergency Management Agency (FE 1A) to
reimburse it for all relocation activities undertaken by FEMA
pursuant to CERCZ. response actions. FEMA has detailed accounting
and eligibility requirements based at lease, in part, upon the
‘/Pursuant to RPIVs concurrence, EPA is using a portion of RPM’s
leased premises as a storage area for some cf the segregaee
chemicals.
“/Since RPM has already expended the money for the initial
relocation and some of the rent, EPA would be reimbursing KPM for
these expenses. We recognize tnat normally there needs to be
EPA preauthorization (40 C.F.R. 53 0.25) before EPA reimburses a
person incurring response costs. lie feel, however, that su:h a
preauthorization is implied from the combination of the aceLorts
of EPA, OSEA, 3011 and ATSDR. To require a more formal pre—
authori:ation (such as an Order or a written statement) would not
be reasonable in circumstances lice this. Specifically, r3ther
than having parties voluntarily agree to do that which is r ;ue3te
by the federal and local governwertt5 in implementing a response
action, parties will wait until they are re uir d to co-operate,
either through the judicial or administrative processes. ALl of
tnis time and effort, in the long run, will slow down uur
removal actions.
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—3—
requiremeflt3 of tne Uniform Relocation Act. Wnetfler all quest ns
that arise as to the propriety of certain, expenses are answered -
•by FE? ’? ’ regulations and policies is an open question. However,
we see little efficiency in pursuing these issues until the
thresnold question of basic eligibility is resolved. t The Region
has also_been asked to consider RPM’S relocation expenses to t e
new building as..a response cost. The Region would welcome your
opinion on this issue as well. -
The pertinent dates of the events in this case are as follows:
December 8—17, 1986 — EPA conducted a preliminary assessment and
inspection of the site. EPA advised RPM t,hat the business can
not be operated when the removal team was hysiCally working
inside the building.
December 17 — January 7, 1987 — RPM continued to work normal
hours. (Appropriate for holiday season)
January 8, 1987 — EPA began removal activities inside the building.
RPM advised by the ( ‘SC to stay out of the building because the
ether ias being sampled.
January 9, 187 — Ether still being sampled. OSC advised RPM to
stay out of the building.
January 9, 1987 — Agency for Toxic Substances and Disease Registry
(ATSDR), based on a review of en. videotape of the interior of
the building and a partial list of the contents of the building,
made an assessment that the building constituted an imminent Lire
and explOSiOn nazard. ATSOR recommended that RPM be immediately
excluded from the building.
/For example, RPM contends that it was required to relocate
because permitted night operations would not allow it to send
out and receive shipments during the day.
Further, because the heavy equipment could not be easily dismantled
and relocated in a temporary facility, RPM utilized subcontractors
for certain operations because of its disrupted work place. iany
financial issues arise from these tangled operations.
To further complicate matters, RPM is likely to permanently relocate
to it wtempocary location and has alledgedly paid $50,000 for
an option to ouy the new facility. The potential relocation
costs are, therefore, significantly higher because heavy equipment
now located at the response site, must be dismantled, moved end --
re—aligned by experts. One of RPM’s estimates of this move is
$153,000. Moreover, we understand that RPt4’s lease at the response
site expires in September 1987 and that a permanent relocation was
c ncemplated y that time in any event.
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—4 —
January 12 — 14, 1987 — RPM worked evenings wnen the removaL team
was not in the building. EPA hired a van service to tran3p rt
the employees. EPA also accepted deliveries and made shipments
for RPM during the day when RPM could not be in the buildiri;.
January 14, 1987 — Occupational Safety and Healtn tdministration
posted a notice of &lleged Imminent Danger (The notice is not a
closure order. It serves as a warning to workers that tfle a is
an alleged dangerous condition in the workplace.)
January 15, 1987 — Dr. Anita Curran, 1 çommissioner of the Westchester
County Department of Health issued an 9 Notice of Closure to RPM.
January 15, 1987 — RPM excluded from the building.
January 22 and 29, 1987 — Hearing held on the Notice of Closure.
Agreement reached that RPM must stay outof the building until
all of the explosives that have been jidentified as of January 26,
‘.987 are removed, provided, however, 1 that the order would be
reinstated if EPA disclosed the existence of additional explosives
or materials that the Commissioner felt constituted an imminent
hazard. Approximately 600 pounds of shock sensitive material
were found on 1/27/87.
January 30, 1987 — ATSDR strongly recommended to the Westchester
Department of Health that evacation of RPM be continued. (letter
is attached)
February 3, 1987 — ATSDR recommended that RPM be excluded from
the building until: The building is completely inventoried; all
leaking containers are overpacked; all explosive or shock sensitive
materials have been removed; incompatible substances have been
segregated: a Fire Marshall is on site a: all times; and EPA
reviews and approves RPM’S proposed activities in the building.
February 10, 1987 — RPM locates another building in which tO
temporarily operate.
February 17 — 27, 1987 — RPM began moving some of its equipment
out of the building between the hours of 7 and 9 in the morning.
EPA goes in the building at 9. PM continues to move material
out each morning for subcontracting. They have set up shop at -
another temporary location. They do their own cutting, and then
subcontract the work out.
February, 1987 — RPM purchases an option to buy another building
from which to operate its business. -
February 27, 1987 — Dr. Curran, after ta-iking to the OSC, ve
RPM permission to enter the building on February 28 and Marcn I
to manufacture some goods. EPA stopped its activities jnsie tne
building for those two days. 1
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March 10, 1987 — )SHA lifted its Notice of Allegei Imminent Danger.
Westchester County Depart ient of Health lifted its Notice of
Closure.
11, 1987 — RPM begins working 1 day 1 and four nights in t,.q
building. The day work is conditionedorr whether EPA is removing
explosives from the building or sampliig unknowns.
II. WHETHER RPM’S RELOCATION EXPENSES CONSTITUTE A RESPONSE
COST IN THE CONTEXT OF A REMOVAL. ACTION
Section 101(23) of the Comprehensive Envi*onmqntal Response,
Compenstion and Liability Act, as amended, 424U.S.C. 55 9601 et
eel . (hereinafter ERCLA) defines a removailaction as: —
the clean up or removal of released hazardous
substances from the environment, such actions
as may be necessary taken in the event of a
threat of release of hazardous substances into
t ie environment, such actions as may be necessary
to monitor, assess and evaluate the release
,r threat of release of hazardous substances,
the disposal of removed materia]i, or the
taking of sucn other action as y be
necessary to 3revent minimize or mitigate
damage to the Dublic rzealtn. welfare or the
environment, wnicn ma otherwise result from
a release or chreatenea release
(emphasis added)
EPk’s initial basis for exiudirig RPM from the building was due to
the fear that the removal team might do something that would
cause a release and harm RPM as wall as EPA. ATSOR and the
Westchester County Department of Health, however, made recommendations
of exclusion and excluded RPM from tne building at all times
because RPM might do something that would cause a rel.ase in the
removal area and thereby threaten the puolic health and welfare.
Indeed, RPM worked with various chemicals, including T E and heat
in ito laminating business. There is no fire vail between the
RPM premises and the premises where the removal actiarr is taking
place. The removal area contained, and to some extent still does
contain, many shock sensitive, flammable and other dangerous
chemicals*. Hence, excluding RPM from the building was an action
necessary to prevent, iinimize of mitigate damage to the public
health or welfare or to the environment, which may otherwise
result from a release or threat pf release.
!lives it as identified most of the shock sensitive
La and has placed them either in magazines located on
in a walk—in vault, also located on site.
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Con3equently, RPM’S excjusi o(1* from the building was a part of
tne removal action being undertakep at the site, for which RPM
incurred, among other costs (i.e. usin.ss los,esl, relocation
costs. The onlv issue remainir j w q he those re1ocptjp
costs be cOmpensated from the Arnd . IJ
It. HETHER RPM’s RESPONSE COSTS ARE COMPENSABLE UM 1 )BR C J.CZ4
One of the many purposes of CERCLA is c p.nsatLon of innocent
victims of a release of hazardous subst ces or pollutar.ti or
contaminents which may affect the publie health or welfare.
In that regard, a person whose water supply is contaminated,
through no fault of his own, is of ten provided bottled drinking
water by EPA, paid for out of the ‘und. In many instances,
bu3inesses, such as restaurants,’at. provided bottled water by
EA. 9ence, a legitimate use of the Fund is to compensat. innocent
victims 0 f pollution. I
Section 101(23), in defining 4’removal, is silent a. to relocation
of businesses without specifibally excluding thp possibility of
compensation. Indeed, the closest the definition comes to
addressing relocation at all. is:
The term includes, in addition, without being limited to,
temporary eva:uation and housing of threatened inJividuals
not otherwise provided for ...
Ber.ce, a strong argument can be made that businesses can be
compensated for their relocation costs.**
/We oelieve it is inconsequential that the County, rather than
EPA, took the legal action to actually exclude RPM from the
building. The National Contingency Plan, 40 C.F.R. SS 300.22 and
.24 requires the federal government to work together with stata-
and local governments to respond expeditiously to emergency
situations. To argue that the County’s closure order was not
Intimately related to and a part of the total response action
taking place at the site is inconsistanb with the cooperative
intent of CERCLA.
‘/ Moreover, if the instant action was a remedial action, RPM
would be compensated for its relocation expenses. Section 101(24)
in defining remedia1 action provides in part:
‘...The term includes the costs of permanent relocation of
residents and business ... (which the President determ1fle
that alone or in comoination with other measures.
may otherwise be necessary to protect the publi: health
or welfare
-------
—7—
Iti clear that c e ner
COmDefl sCtjpn ef a t
relocation Colts . The phrase the •taking of such cther sât n
u-ay be necessary to prevent, minimize or mitigate damage to
..the.pubLjc.h 5lth or welfare or to the environments 42 U.S.C. $
101(23), gives EPA very broad authority; to determine what ac.tons
are necessary in any given situation. Further, the list of
actions that Constitute removal actions contained Ln Se tjo
101(23) is preceded by tne term Iwithout being limited to.
Hence, just what Constitutes a remsvaj action lies wit jn the
sound discretion of EPA.
Without making any broad asserti na wim r. pee
E 1inesses tar the relocation costs in removal actions, the Region
feá ls that the c1rcumgtpnt! g A12&. *itjeg lot ttêis et. L.
ca pensatjon . The only reason thA PR .tocated from the site
ias oecaus.öf EPA’s removal action. any costs incurred
by RPM should be Considered a response cpst and paid for by the
fund.
________________ I. ! I
Iv. CONCLUSION
We have tried to set forth, as clearly as 1 possible, the factual
setting which underlies the conclusion tnat.RPM should be com-
pensated for its relocation costs.
‘.ie
also invite your opinion on now to treat the
that RPM may incur, should it decide 1 to exercise its option to
buy the new building.*
Thank you for your cooperation on this matter.
cc: Timothy Fields
William Ross
‘/The Region is in the process of tscu4ing witn Region 7 the
procedures it uses during the relocstidns t has been involve:1
with and to find out whether it. has either temporarily or permanently
relocated businesses. We are also inthe process of determjr.jn 2
whether the FEflA has any regulations or procedures regarding
which relocation costs can fairly be paid, as well, as trying to
determine ourselves, what costs constitute relocation C3sts and
whether they are compensable, and if so, what portion is
compensable.
-------
Employee Occupational Health and Safety
-------
unt!Ia Iaiss clwronnrual ‘ ‘,1. ICn Agricy (I
wuriw qton DC 20460
OSWER Directive Initiation Request I 9285.3-02
2. Ort .lnator nfe ,m.tI. ,
—
Nm. of Cornaci ?.rien Mad Ccc . QMca
J nd Throin rmJZl
T.monor. Coøs
4Q . .674S
3.fu.
—
E nployee Occupational Health & Safety
4 Svsiue wy ol Oweciivs twlauco on siuom*it ci pldtpsssJ
Provides instructions reminding EPA employees
that
they must
ccinply with
OSHA.
°‘ perf z1. A. S M
SI. Qo This QWSCOVS Supulsia. - Pv .i,u aa afl v.fs1
a. Do., it $1XZfl t Previous Q.acuia(iI?
A-& II MJOM a- 56IIIOMCSO U Si C-F a rR, .i&Cwu*
18. Document to be dIstr butsd to States by Headquarters? No
INi Mequ.at Mists O5W Olrscavss System Format Staista,da.
9. Sqisiur, of LuO DiScs Oa.cvv.s Cacramito,
Richard Hyde . 7/7/87
10. demi aria r . ci Icoravvig OiScai
Win Porter, Assistant Mministrator 7/7/87
SPA Farm 13 0 -I l ( sv. I-47 Previous iamons are ooaarsm.
OSWER
OSWER
OSWER
0
VE DIRECTIVE DIRECTIVE DIRECTIVE
No. L_J ‘—
EN.
What s —.
aat j. att, . o,. lSI
• a
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20410
JL T 8T
QPØIC$ OP
oua &$T1 ANO £MtØG*SCY IS
oSW D .rective 9285.3-
MEMDRAI DU
SUBJECT: mploy,p4cuPa*ioflal Health and Safety
•‘ tt / t
FR I: Wfnstó i Porter, Assistant Administrator
ft Ice of Sol Waste and Emergency Response
TO: Addressees
As we Initiate our field activities under the Superfund atendments
and Reauthorization Act of 1986 (SARA), I wish to remind everyone that all
EPA enpi oyees are requ I red to ccmpl y with the Federal Occupational Health
and Safety ACt- (OSHA). In addition to camplying with such federal standards
as 29 CFR 1910/1926, EPA employees must also adhere to the appropriate EPA
orders, policies, and guidelines pertaining to employee occupational healt
and safety. For example, EPA Order 1440.3 requIres all EPA employees
using respiratory protection devices to participate In a medical monitoring
program. I want to encourage all Regions and OSWER offices to continue to
Implement effective medical monitoring programs for Its employees. EPA
Order 1440.2 requires all EPA employees engaged In routine field activities
to be trained and to receive training certification levels coensurate
with the degree of anticipated hazards. EPA Order 1440 specifies the
responsibilities of all Agency employees In this area.
More recently, section 126(a) of SARA requires the Secretary of
Labor, within one year of the date of enactment, to prom lgate standards
(29 CER 1910.120) for health and safety protection of employees engaged
in hazardous waste operations. The Secretary Is also requf red In Subsec-
tion 126(s) to Issue interim final regulations within 60 days after
enactment of SARA. The Interim final rule was published In the Federal
!j!!.r (Vol. 51, No. 244, pages 45654 - 45675) on December 19,1 986.
This Interim final rule took effect upon the date of issuance (December
19. 1986), and it was OSHA’s judgment that all provisions could be fully
implemented not later than 90 days after Issuance (March Il, 1987). As
with other 05 14* SectIon 6 Standards, EPA Is required to comply wIth 29
CFR 1910.120 per Executive Order 12196 (February 1980).
-------
(OSWER Directive 9285.3—02)
—2—
En addition, section 126(f) of SARA requires the Administrator
of EPA, within 90 days after the promulgation of final regulations under
section 126(a), (January 11, 1988), to promulgate standards Identical
to 29 CFR 1910.120 (those promulgated by the Secretary of Labor under
section 126(a)). EPA’s Workgroup No. 2427 (Hazardous Waste Operations
and Emergency Response Worker Protection Standards), chaired by Rod Turpin,
Safety and Occupational Health Manager, Environmental Response Team
(ERT). Edison, NJ, has been established and includes representatives of
five (5) EPA Regions, two (2) States, and OSHA. In addition, the following
EPA Headquarters offices are represented: Office of Policy, Planning and
Evaluation, Office of Pesticides and Toxic Substances, Office of General
Counsel, Office of Research and Development, Office of Solid Waste and
Emergency Response, and the Occupational Health and Safety Staff. The
objective of this Workgroup Is to:
1. Promulgate EPA Worker Health and Safety Standards
Identical to OSI4A ’s standards (29 CFR 1910.120)for those 27
States which do not have In effect an approved State Plan under
the Occupational Safety and Health Act of 1970.
2. Develop an lmplementatlon/enforcement strategy for these EPA
standards.
In order to better Implement both EPA and OSHA Occupational Health
and Safety requirements, OSWER has established an Integrated Health and
Safety Program for the sole purpose of assisting OSWER In providing a
safe and healthy work environment for Its field activities. This program
is managed by Rod Turpin, ERT, Edison, NJ. Please feel free to call him
at 201-321-6745 (FIS 340-6745) for any additional information.
Thank you In advance for your assistance and dedication In making
our work environment a safe and healthy one.
Addressees:
Regional Administrators, Regions I — X
Henry 1. Longest II (WH 548)
Marcia E. Williams (1* 1.562)
Ronald Brand (WH -562A)
Gene A. Lucero ( 1*1-527)
cc: David Weit nan (P14-273F)
Waste Management Division Directors, EPA Regions I-X
Environmental Services Division Directors, EPA Regions I—X
-------
EPAInterim Guidance on Indemnification
ofrsupertund Response Action
Contractors Under Section 119 of SARA
-------
ff423/f
United States Office of
Environmental Protection Solid Waste and
Agency Emergency Response
&EPA DIRECTIVENUMBER 9835.5
TITLE: EPA 1nteri Guidance on Indemnification of Super—
fund Response Action Contractors under Section
13.9 of SARA
APPROVAL DATE: October 6, 1987
EFFECTIVE DATE: October 6, 1987
ORIGINATING OFFiCE: OWPE
FINAL
o DRAFT
LEVEL OF DRAFT
A— Signed byAA or DAA
o B — Signed by Office Director
O C — Review & Comment
REFERENCE (other documents):
SWER OSWER OSWER
DIRECTIVE DIRECTIVE DI
-------
&EPA OSWER
United Stales Environmental Protection Agen
Washington. DC 20460
Directive Initiation
cy
Request
Ii Directive Number
1 9835.5
Name of Contact Person
Torn Ci].lis
2. Oriqlnator InformatIon
‘Mail Code (Office
WH 527 IOWPE
Telephone Code
1.382—4524
Interim Guidance on Indemnification of Superfund Contractors under Sectic 119
of SARA
4 Summary of Directive (include bnet statement of puipose)
Provide Guidance to EPA Regional Personnel on EPA Superfund RAC Indemnification;
including EPA Interim Guidelines, Procedures for Processing Indemnification Requests,
and Model Indemnification Contract Language.
Keywords
Superfund, CERCLA, Indemnification, RAC, Contrator, Liability, Contracts
6a Does This Directive Supersede Previous Directive(s)’ reCtru’e (number, title)
b Does It Supplement Previous Directive(s)’ No Yes What directive (number, title)
7 Draft Level
L J A - Signed by &AJDM B - Signed by Office Director C - For Review & Comment D - In Development
Document to be distributed to States by Headquarters? No 1
a
ThIs Request Meets OSWER DirectIves System Format Standards.
9 Signatur f Lead Office Directives Coordinator
I x
Date
/o/a ’(7
10 Name and Titie of Approving Official
)ate
EPA Form 131 5- 17 (Rev. 5-87) Previous editions are obsolete
OSWER
OSWER
OSWER
0
VE DIRECTIVE DIRECTIVE DiRECTIVE
-------
,ø
( S -UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
‘ -I.
OSWER Directive 9833.5
- OCT 6 98T
N*NORAIDU
SUBJECT; EPA Interim Guidance on !ndemnification of Superfund
Respqnse Act D Contractors Under Section 119 of SARA
1_ _ fr-
FROM: 7. ton Porter, Assistant Administrator
Of a of Solid 71 e a Emergency Response
,C. Mo gan nghdrn, t ng Ass atant Administrator
Office of A minist at on and Resources Management
TO: Regional Administrator, Regions I-X
Regional Counsel, Regions X-X
Director, Waste Management Division
Regions I, IV, V 1 VII, and -VIII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Region III and VI
Director, Toxics and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
Director, Environmental Services Division
Regions I, Vt, and VII
r se
Sub .ct to certain restrictions, Section 119 of the
Superfund Amendments and Reauthorization Act of 1986 (SARA)
authorizes the Environmental Protection Agency (EPA) 1 to provide
indemnification 2 to response action contractors (RACs) working at
Superfund sites for States, potentially responsible parties
(PRPe), and EPA (including RACs working for the U.S. Army Corps).
1 Under Executive Order 12580, the President has also
authorized other Federal agencies to indemnify RACa working for
those agencies.
2 “Indemnification” is an agreement whereby one party
agrees to reimburse a second party for losses (in this case
liability losses) suffered by the second party.
-------
2 OSWER Directive 9835.5
of Enqin..& at lPkmlead sites) 3 . The purpose of this memo is t
describe hv EPA may provide indemnification to RACs using
Section 119 authority.
o d
Response action contractors have traditionally relied on
commercial liability insurance or indemnification to SUffiCiently
offset their potential liability risks from participation in the
Superfund program. During the Superfund reauthorization debate.
the RAC community identified several factors which, the RACs
contended, impaired their ability to adequately offset risk.
These factors included:
o Potential subjection to strict, joint and several liability
under Superfund and under some state laws; and
o Inability of the commercial liability insurance market to
provide liability insurance coverage to RACs involved in the
Superfund cleanup program that is both adequate and
affordable.
Prior to the reauthorization of CERCLA, EPA provided
indemnification to RACs working for EPA through contract
authority implementing CERCLA. EPA took this step in order to
retain qualified contractors, given the absence of pollution
liability insurance coverage. Under this old indemnification
agreement, the Pederal government indemnified RACs above an
initial $1 million for third party liabilities and defense
expenses. The indemnification agreement was void in cases of
gross negligence or willful misconduct.
3 SARA Section 119(e) (2) defines response action
contractor as:
a. any person who enters into a response action contract (which
is defined in part as any written contract or agreement to
provide any CERCLA removal or remedial action at a facility
listed on the or to provide any ancillary services
related to such response) with respect to any release or
threatened release of a hazardous substance or pollutant or
contaminant from a facility and is carrying out such a
contract; and
b. any person retained or hired by the person who enters into a
response action contract, to provide any services, related to
a response action; and
c. any person, public or nonprofit private entity, conducting a
field demonstration pursuant to SARA Section 311(b) (i.e.,
the wAlternative or Innovative Treatment Technology Research
and Demonstration Program ).
-------
3 OSWER Directive 9835.5
s.ct3i 119 of SARA responds to many of the concerns of the
RAC coaaudty by:
o Establiihing a standard of negligence for actions brought
against RACe under Federal law; 4
o Authorizing EPA to provide to RACe, on a discretionary
basis, limited indemnification against pollution liability
arising from RAC negligence; and
o Providing express statutory authority for indemnification
and a funding mechanism.
The approach taken in Section 119 provisions is based on the
following key points:
o A Federal liability standard of negligence, combined with
RAC indemnification which is subject to limits and
deductibles, provides adequate performance incentives for
RAC5 working in the Superfund program;
o RAC indemnification provides an adequate substitute for
insurance;
o Discretionary indemnification is an interim vehicle that
will keep the Superfund program operative until the
insurance industry returns to the RAC liability insurance
market; and
o Discretionary indemnification does not create a Federally
intrusive insurance program that interferes with private
sector efforts to develop RAC liability insurance coverage.
4 The Federal standard of negligence under Section 119
applies only to Federal law. It does not preclude States from
applying their own statutory law or common law liability
standards, which may in some cases be strict liability. Response
action contractors sued in Federal courts are under a “standard
of care” defined by Federal law as negligence. However, if an
action is brought under state law, a strict liability standard
could apply.
-------
4 OSWER Directive 9835.5
EPA Task 1s* on EAC
To avoid program delays, a Task Force was established to
determine how-EPA will provide indemnification to RAC5 Working in
the Superfund program. The Task Force is composed of
representatives from EPA’s Office of Waste Programs Enforcement
(OWPE), Office of Emergency and Remedial Response (OERR), Office
of Solid Waste (OSW), Office of General Counsel (0CC), Office of
the Comptroller (OC), Office of Administration (Ok), and the u.s.
Army Corps of Engineers. The primary goals of the Task Force are
to:
o Establish an EPA RAC indemnification program;
o Develop Section 119 RAC final indemnification guideliri.s and
regulations, -
o Ensure a forum for adequate public comment on RAC
indemnification; and
o Promote private sector provision of RAC pollution liability
insurance in the future by providing technical assistance to
the insurance industry.
The Task Force will attempt to reach these goals by
producing severe]. work products that: (1) carefully analyze and
estimate the potential. pollution liability risk to which RAC5 art
exposed by Participating in the Superfund cleanup programs (2)
determine what the final EPA indemnification terms and conditions
will be; (3) prepare the Agency for implementing an interim RAC
indemnification program; and (4) develop the Section 119
regulations.
Interim EPA Indemnification Guidelines
SARA Section 119 now provides EPA’s sole authority to extend
indemnification to RACe working in the Superfund program.
Delegation of authority from the President authorizing EPA to use
Section 119 provisions was issued through Executive Order 12580
on January 26, 1987. The delegation authorizes EPA to use
Section 119 indemnification authority from the date of enactment
(DOE) of SARA. Consequently, EPA must adhere to Section 119
provisions from SARA DOE (October 17, 1986).
Section 119(c)(7) requires that EPA promulgate regulations
for carrying out indemnj fjcatjon provisions and, prior to
promulgation of the regulations, develop guidelines to carry out
use of Section 119 indemnification authority. Because of the
complexity of the issues, EPA is proceeding deliberately in
establishing these guidelines and is seeking substantial public
-------
5 OSWER Directive 9835.5
comment. nubile, EPA is providing contractors with Section
119 cover - on an interim basis, using procedures outlined j
this memorandum. Ultimately, this coverage will be amended to
reflect guidance and regulations that will be developed in
conformance with Section 119 requirements.
As further described in this memorandum, authorization to
provide indemnification will be made by OSWER with concurrence
from the Office of the Comptroller (OC). Authorization to
indemnify will be made upon receipt of a recommendation from the
Task Force. The OC will provide concurrence (or non—concurrence)
with recommendations to indemnify within seven calendar days of
receipt of a recommendation. Execution of indemnity agreements
will be made by appropriate Agency administrative offices.
Section 119(c) (4) mandates that MCa must meet the following
requirements before they can receive Federal indemnification for
potential pollution liability associated with Superfund response
action activities:
o The RAC must make diligent efforts to obtain naurance
coverage from non—Federal sources to cover pollution
liability; and
o In the case of a RAC contract covering more than one
facility, the RAC agrees to continue to make such diligent
efforts each time the RAC begins work under the contract at
a new facility.
Section 119(c) (4) also requires that the following
circumstances must exist before a RAC can receive Federal
indemnification for potential pollution liability associated with
Superfund response action activities:
o At the time the response action contract is entered into.
insurance is not available, at a “fair and reasonable
price”, in sufficient quantity to offset potential RAC
pollution liability risk, and
o Adequsts insurance to cover such liability is not generally
availabl, at the time the response action contract is
entersd into.
In future guidance (i.e., the guidance which is to be
published for public comment), EPA plans to include guidelines
for determining whether insurance is “generally available” or is
“fairly and reasonably priced”. For the purpose of this interim
guidance, EPA has determined, based on information currently
available, that Superfurtd RACS are unable to obtain reasonably
priced pollution liability insurance. Therefore, RACs are
eligible to receive indemnification under Section 119 from DOE of
-------
6 OSWER Directive 9835.’
SARA. Sovs’ sr, EPA will require that RACS seeking Pederal
indemnification meet the following requirements:
a Within 30-days of signing an indemnification agreement with
EPA, RACs must submitto EPA (or to the appropriate State
Contracting Officer) written documentation concerning the
efforts they have made to date to secure pollution liability
insurance coverage (e.g., a RAC could submit a written
statemept from an in8urance broker stating that the RAC has
attempted to secure pollution liability coverage from
insurance carriers in the past six months).
o If the RAC has secured pollution liability coverage, it must
submit to EPA (or to the State Contracting Officer) a copy
of the policy and declaration page; and
o Every twelve months (or more frequently, if EPA determines
that there has been a significant change in circumstances
concerning the availability of pollution liability
insurance) the RAC must submit to EPA (or to the State
Contracting Officer) written documentation addressing the
additional efforts the RAC has made to secure pollution
liability insurance coverage including:
— Copies of applications submitted to three known
underwriters of pollution liability insurance;
— If pollution liability coverage was denied by an
underwriter, a summary of the reasons why such coverage
was denied;
— A status report of any pollution liability insurance
obtained. The report would include: 1) type of
coverage; 2) premium charged; 3) limits of coverage; 4)
deductible levels, and any other major terms and
conditions of the insurance coverage. A copy of the
actual policy and declaration page could be provided in
lieu of a written status report;
— If pollution liability coverage was offered by an
underwriter, but not accepted by the RAC, a report on
the insurance offered (such as the status reports
required above), and a summary of the reasons why such
coverage was not accepted: and
— A status report concerning the alternative pollution
liability risk transfer mechanisms the RAC has pursued
other than commercial pollution liability insurance
(e.g., risk retention groups, purchasing groups,
association captives).
-------
7 OSWER Directive 9835.5
This nformation should be forwarded to the appropriate EPA
official (Dr State Contracting Officer). This information will
be reviewed by the Task Force as needed.
As requfred under the interim guidelines listed above, EPA
expects RACs to demonstrate the extent to which they have
attempted to secure pollution liability insurance coverage. EPA
also expects that RACe will continue to monitor the market for
pollution liability insurance, and continue to seek and secure
such insurance coverage (however limited) from commercial
insurance carriers or through alternative risk transfer
mechanisms (e.g., self—insurance pools).
Indemnification of RACe Working for SPA
Pre—SARA indemnification terse will apply to work performed
at a site after the date of enactment (DOE) of SARA if response
work at the site was initiated under an EPA contract prior to the
DOE of SARA.
EPA will enter into new indemnification agreements (See
Attachment A), subject to Section 119 authority, with:
o RACe who are currently working under contract with EPA. for
work they will initiate at a new site after DOE of SARA; and
o RAC5 receiving new contracts (or new cooperative agreements,
in the case of Site Demonstration projects) with EPA after
DOE of SARA for Superfund response action activities.
RACe currently under contract with EPA have been alerted to
the changes that will be forthcoming to their indemnification
agreements with EPA. EPA headquarters personnel in the
Procurement and Contracts Management Division of the Office of
Administration have been trained on the use of Section 119 and,
with the assistance of the Task Force, will administer Section
119 indemnification interim procedures for EPA contractors.
Requests far indemnification of EPA contractors will be subject
to the approval of OSWER and concurrence of CC.
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8 OSUER Directive 9835.5
Zndemnificáion of MACs Working for Stat. .
secti U9(c)(2) authorizes the indemnification of RACe
working for States or political subdivisions of States (Pursuant
to a Section 104(d)(l) agreement with EPA) for new work initiated
at Superfund sites from DOE of SARA. EPA may indemnify MACs
performing response action activities for a state at a State—lead
Superfund site after DOE of SARA. EPA will offer indemnification
to RACe working for a State only if:
o The MAC. response action is part of new sit. work initiated
at a Superfund site after DOE of SARA nd it is related
directly t3 cleanup of the site;
o MACs working for a State must meet all of the circumstances
and issuance requirements set forth by Section ]19(c)(4 , as
listed above; and
o RACe working for a State must meet all of EPA’s interim
guideline requirements, as listed previously on pages five
and six.
EPA will not offer indemnification to RACe for site work they
performedTr States prior to DOE of SARA. Any EPA
indemnification provided to a RAC(s) working for a State(s) will
be subject to limits, deductibles, and other restrictions as
required by Section l39(c)(5).
Until EPA issues final guidance and regulations, all
requests for EPA indemnification of a RAC working for a State at
a Superfund site will be processed via the Task Force. States
should submit requests to both the ndemriification Task Farce,
c/a Director, Office of Emergency and Remedial Response (OERR),
and to the Regional Superfund Branch Chief. Requests should
identify the Regional Site Coordinator and State contact, and
should include pertinent information regarding Section 119(c) (4)
requirements as discussed previously. If the Talk Force
recommends approval of the indemnification request, the Office of
the Comptroller will provide concurrence (or non—concurrence)
within seven calendar days of receipt of the recommendation.
Final approval for EPA indemnification of a State MAC will be
made by the Director of the Office of Emergency and Remedial
Response. If approval is authorized, then the Grants
Administration Division will implement the approval through a
special condition to be included in the State/EPA cooperative
agreement (See Attachment A).
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9 OSW!R Directive 9835.5
Indemnification of MC working for Other Federal Agencies
section 119(c)(2) authorizes the indemnification of RACs
working for Q. her Federal agencies at Superfund sites from DOE of
SARA. A delegation of authority from the President authorizing
other Federal Agencies to use Section 119 provisions was issued
on January 26, 1987. Other Federal agencies follow all EPA
guidance and regulations with respect to Section 119. Other
Federal agencies that use Section 119 authority must provide
their own source of funds (e.g.,thetr agency appropriation) to
pay all indemnification costs (e.g., claims and legal defense
costs).
At some Superfund sites, the U.S. Army Corps of Engineers
manages response actions pursuant to an interagency agreement
with EPA. For Section 119 indemnification purposes, any MC
working as a contractor for the Corp. of Engineers at such sites
(and where, for remedial actions, the site is listed on the NPL)
is considered to be working for EPA rather than for some wother
Federal agencyu. EPA will offer the same indemnification to
contractors procured by the Corps of Engineers that it offers to
contractors procured by EPA.
Indemnification of RACs Working for flPs
Under Section 119(c)(2) authority, EPA can, in limited
circumstances and subject to strict financial tests, indemnify
RACS performing response action activities for PRP5 subject to a
consent order or decree at Superfund sites after DOE of SARA.
EPA will use its authority to indemnify RAC 5 working for PRPs
only in extremely limited cases, e.g., where EPA indemnification
of the PRP RAC is the solution of last resort. EPA will, offer
indemnification to RACs working for PRP5 only if :
o The PRP5 are unable to provide adequate indemnification, and
as a result, are unable to obtain the services of a
qualified RAC:
o The RAC’s response action is part of new site work initiated
at a Guperfund site after DOE of SARA, and the action is
related specifically to the cleanup of the site;
o MC5 working for PRPs meet all of the issuance requirements
set forth by Section 119(c) (4);
o The circumstances set forth in Section 119(c) (4) exist; and
o MC. working for PRP5 meet all of EPA’s interim guideline
requirements.
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10 OSWER Directive 9835.5
EPA l not offer indemnification to RAC. for work
performed g J!Ps prior to DO! of SARA, nor for any PRP RAC
response ivity that is not related specifically to a remedy at
a Sup.rfunif site.
Further, Section 1 19(c) (5) (C) of SARA requires that; before
EPA can enter into an indemnification agreement with a RAC
performing work under contract with a PEP(s) at a Superfund
site(s), EPA must determine the amount which the PEP(s) is able
to indemnify the RAC. In making such a determination, EPA shall
take into account the total net assets and resources of the
PEP(s) with respect to the facility at the time of such -
determinations. If EPA determines that the amount which the
PEP(s) is able to indemnify the RAC is inadequate, then EPA may
enter into an indemnification agreement with the EAC to meet the
anticipated shortfall. EPA will consider the combined
cipabilities of all the PRP5 at a sit. to determine whether, at a
group, they are capable of providing adequate coverage. In
general, the Agency expects to use this provision only in cases
where PRPs are small firms with f cv assets. Therefore, Regions
should not mak. requests for Federal indemnification where PRP5
are large corporations with substantial assets or where the PRP5,
as a group, have substantial assets. As a result, EPA does not
expect requests for Federal indemnification to become an integral
part of settlement negotiations.
EPA plans to provide additional guidance in the future
concerning the determinations that riced to be made as a
prerequisite to indemnifying MC i working for PRPs (such as
defining “net assets and resources” of the PEP5, and whether the
PRPs are “unable to provide adequate indemnification”). Until
EPA distributes this guidance, all such determinations will be
made by the Task Force.
EPA indemnification of a RAC working for a PR? is a measure
of last resort. If EPA does provide indemnification in these
cases, the consent decree (or order) should specify term. and
conditions, using the model EPA indemnification agreement for
RAC5 vorking for PEP5 shown in Attachment A. If EPA enters into
an indemnification agreement with a MC working for a PRP(s), the
MC must:
o Retain financial responsibility for a deductible amount if
commercial pollution liability insurance is unavailable or
unreasonably priced and
o Exhaust all administrative, judicial, and common law claims
for indemnification against all PRPS participating in the
cleanup of the facility before EPA can pay a claim.
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11 OSWER Directive 9835.5
If a EAC baa received partial indemnification from a PRP(s),
EPA may al provide indemnification in cases where the PR?
indemnification ii deemed insufficient, and in mixed funding
cases. EPA may provide indemnification above the PRP
indemnification. The coneent decree should specify the terms and
conditions using the model EPA indemnification agreement shown in
Attachment A.
All requests for EPA indemnification of a MC working for a
PEP(s) at a Superfund site should be submitted to both the
Indemnification Task Force, c/c Director, Office of Waste
Programs Enforcement (OWPE), and to the Regional Superfund
Enforcement Branch Chief. Please identify the Regional Site
Coordinator and the Regional Counsel’s Site Representative.
Include pertinent information regarding the number of PRPs,
financial profile of the PRPs, type of work to be performed,
etc., such that the Task Force can make determinations per
Section l1.9(c)(4) and Section 119(c)(5).
Upon determining that a MC meets all of the circumstances
and requirements set forth in Section 119 and in EPA interim
guidelines, the Task Force will evaluate an amount to which the
PRP(s) is able to indemnify the RAC and an amount to which EPA
will indemnify the MC in excess of the PR? indemnification
amount. Any EPA indemnification provided to a RAC(s) working for
PEP(s) will be subject to limits, deductibles, and other
limitations as required by Section l19(c)(5). If the Task Force
recommends approval of the indemnification request, the Office of
the Comptroller will provide concurrence (or non—concurrence)
within seven calendar days of receipt of the recommendation.
Final approval for EPA indemnification of a PR? R.AC will be made
by the Director of OWPE.
RACS Work jag for PRPs Without EPA Indemnification
Those RACe working for PRP5 at Superfund sites who do not
receive indemnification from EPA may either receive no
indemnification at all, or may receive indemnification from PEPs
only. For those MC i working with no indemnification, PRPS
should demonstrate that the MC is qualified to perform the work
adequately, has sufficient financial capability to complete the
projected work, and demonstrates financial responsibility for
potential third party liability costs. This can be ensured
through a combination of adequate competition in the contract
procurement process and a demonstration of financial
responsibility. Such a demonstration can consist of purchase of
performance bonds, letters of credit, insurance, maintenance of a
trust fund, etc. A consent decree should specify the
aforementioned.
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12 OSWER Directive 9835.5
For th • RACS receiving indemnification from PRPS only (and
where EPA the indemnification to be adequate). RACS should
be qualtfiá to perform work adequately. This can be ensured
through a coabjnation of adequate competition in the contract
procurement process, and through a demonstration of financial
responsibility. The PRP indemnification is sufficient
demonstration of financial responsibility; therefore, performance
bonds, letters of credit, etc., are not required. The consent
decree should specify the aforementioned a. well as the
indemnification terms and conditions.
Piblicly aimed Treatment Work .
Section 1.19(c)(5)(D) specifically prohibits EPA from
indemnifying an owner or operator of a facility regulated under
the Solid Waste Disposal Act. Therefore, publicly owned
treatment works subject to permit-by—rule provisions cannot be
indemnified (nor can any other permit—by—rule facility, such as
an underground injection facility). The intent of this provision
is to prohibit EPA from offering indemnification to off site
treaters or disposers of Superfund hazardous waste. Therefore.
while POTWs not subject to RCRA regulation (i.e., POTWs without a
permit—by—rule) are not explicitly prohibited from EPA
indemnification authority under Section 119, the Agency has
determined that an extension of indemnification authority to any
POTW would not be consistent with congressional intent in Section
119. Therefore, EPA will not provide indemnification tO POTWs
under Section 119 authority.
meary
This memorandum describes the current Federal
indemnification provisions for response action contractors
working in the Superfund program as provided in Section 2.2.9 of
SARA. The statute gives the Federal government the discretionary
authority to indemnify RACs for liability arising out of
negligence. Acts of gross negligence and willful misconduct are
expressly excinded from the indemnity provision. The Section 119
indemnity provision does not preempt the rights of State. to
enforce a standard of strict liability.
Federal indemnification is meant to be an interim vehicle
which will keep the Superfund program operative until the
insurance industry returns to the market. It is not intended to
create a Federally intrusive program that will interfere with
private sector efforts to develop RAC liability insurance
coverage.
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13 O8WER Directive 9835.5
Please direct all questions and coarnents to Robert Mason at
FTS 382—4015 or Torn Gillis at PTS 382—4524
Attachaents
A. Model Indernnification Agreernents
B. CERCLA (a. arnended) Section 11.9
cc: Administrator
Deputy Administrator
General Counsel
Regional Grants Office, Regions I—X
Regional Financial Management Office, Regions I—X
Regional Superfund Branch Chiefs, Regions I—X
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Attachment A
MODEL INDEMNIFICATION AGREEMENTS
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This at eha.nt contains model EPA indemnification
agreements f - s. by EPA, States, and PRP5 when RACs seek
indemnificat from EPA. Any deviation from the model language
must be approved by the EPA Indemnification Teak Force. Four
models are atta bed:
I. Model EPA/RhC Indemnification Agreement
II. Model State Cooperative Agreement Indemnification Special
Condition
III. Model EPA/RAC Indemnification Agreement for RACs under
Contract with PRP8
IV. Model EPA/ SITES Program Technology Vendor Indemnification
Agreement
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I
MODEL EPA/RAC INDEMNIFICATION AGREEMENT
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Insurance —— Liability to Third Persons -—
Commercial Organizations
(EPAAR 155T.228—70) (AM 1984) (with deviation)
(a) This Clause H____________ will be modified by the
mutual agreement of the parties hereto within 180 days of the
EPh’B promulgation of final guidelines for carrying out the
provisions of Section 119 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended
(CERCLA).
(b) The Contractor shall procure and maintain such
insurance as is required by law or regulation, including that
required by FAR Part 28, in effect as of the date of execution of
this contract, and any such insurance as the Contracting officer
may, from time to time, require with respect to performance of
this contract.
Ic) At a minimum, the Contractor shall procure and maintain
the following types of insurance.
(1) Workmen’s compensation and occupational disease
insurance in amounts to satisfy State law;
(2) Employer’s liability insurance in the minimum amount of
Sl0O,000 per occurrence;
(3) Comprehensive general liability insurance for bodily
injury. death or loss of or damage to property of third persons
in the minimum amount of $1,000,000 per occurrence;
(4) When vessels are used in the performance of the
contract, vessel collision liability and indemnity liability
insurance in such amounts as the Contracting Officer may require
or approve: provided, that the Contractor may, with the approval
of the Contracting Officer, maintain a self—Insurance program.
All insurance required pursuant to the provisions of this
paragraph shall be iii such form and for such periods of time as
the Contracting Officer may,.from time to time, require or
approve and with insurers approved by the Contracting Officer.
(d) The Contractor further agrees that it will make
diligent efforts throughout contract performance in accordance
with EPA guidelines to obtain adequate pollution liability
insurance.
Ce) The Contractor agrees, to the extent and in the manner
required by the contracting Officer, to submit for the approval
of the Contracting Officer all insurance maintained by the
Contractor in connection with the performance of this contract
and for which the Contractor seeks reimbursement hereunder. The
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2
Contractor’s Submission shall include documentation demonstrating
its diligent efforts to obtain pollution liability insurance.
(f) The Contractor shall be reimbursed, for the portion
allocable to this contract, the reasonable cost of insurance
(including reserves for self—insurance) as required or approved
pursuant to the provisions of this contract clause.
(g)(l) Pursuant to Section 119 of CERCLA, the EM will hold
harmless and indemnify the Contractor against any liability -
(including the expenses of litigation or settlement) for
negligence arising out of the Contractor’s performance under this
contract in carrying out response action activities. Such
indemnification shall apply only to liability not compensated by
insurance or otherwise and shall apply only to liability which
results from a release of any hazardous substance or pollutant or
contaminant if such release arises out of the response action
activities of this contract. Further, any liability within the
deductible amounts of the Contractor’s insurance will not be
covered under this contract clause B
(2) For purposes of this clause (g), if the Contracting
Officer has determined that the insurance identified in paragraph
(d) is not available at a reasonable cost, the Government will
hold harmless and indemnify the Contractor for liability to the
extent such liability exceeds $100,000.00.
(3) The Contractor shall not be reimbursed for liabilities
as defined in (g) (including the expenses of litigation or
settlement) that were caused by the conduct of the Contractor
(including any conduct of its directors, managers, staff,
representatives or employees) which was grossly negligent,
constituted intentional misconduct, or demonstrated a lack of
good faith. Further, the Contractor shall not be indemnified for
liability arising under strict tort liability, or any other basis
of liability other than negligence.
(h) The Government may discharge its liability under this
contract clause by making payments directly to the Contractor or
directly to parties to whom the Contractor may be liable.
(i) With prior written approval of the Contracting Officer,
the Contractor may include in any subcontract under this contract
the same provisions in this clause whereby the Contractor shall
indemnify the subcontractor. Such a subcontract shall provide
the same rights and duties and the same provisions for notice,
furnishings of evidence or proof, and the like, between the
Contractor and the subcontractor as are established by this
clause. Similar indemnification may be provided for
subcontractors at any time upon the same terms and Conditions.
Subcontracts providing for indemnification within the purview of
this contract clause shall provide for prompt notification to the
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3
contractor v tch is covered by this contract clause, and shall
entitle the Government, at its election, to control, or assist in
the settlement d defense of. any such claim or action. The
Government will indemnify the Contractor with respect to his
obligation to subcontractors under such subcontract provisions.
The Government may discharge its obligations under this paragraph
by making payments directly to subcontractors or to parties to
whom the subcontractors may be liable.
( ) If insurance coverage required or approved by the
contracting Officer is reduced without the Contracting Officer’s
approval, the liability of the Government under this contract
clause will not be increased by reason of such reduction.
(k) The Contractor shall:
(1) Promptly notify the Contracting Officer of any claim or
action against the Contractor or any subcontractor which
reasonably may be expected to involve indemnification under this
contract clause;
(2) Furnish evidence or proof of any claim covered by this
contract clause in the manner and form required by the
Government; and
(3) Immediately furnish the Government copies of all
pertinent papers received by the Contractor. The Government may
direct, control, or assist the settlement or defense of any such
claim or action. The Contractor shall comply with the
Government’s directions, and execute any authorizations required
in regard to such settlement or defense.
(1) Reimbursement for any liabilities under this contract
clause will not exceed appropriations available from CERCLA’S
Hazardous Substance Superfund (except to the extent that Congress
may make appropriations to specifically fund any deficiencies) St
the time .such liabilities are represented by final judgments or
by settlements approved in writing by the Government.
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It
MODEL STATE COOPERATIVE AGREEMENT
INDEMNIFICATION SPECIAL CONDITION
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EPA INDEMNIP ?IQN
EPA will providi indemnification pursuant to Section 119 of
CERCLA, as amended, to contractors carrying out response actions
under this agreement provided that the State certifies to EPA
that:
1. The contracts awarded under this agreement are defined in
section 119(e) of CERCLA. as amended;
2 The contracts awarded under this agreement include the
following clause that exclusively governs EPA
indemnification:
(see attached clause)
3. At the end of each calendar year and at the end of each
project period, all statements and materials related to
pollution liability insurance submitted by the Contractors
to the State Contracting Officer will be transferred to EPA.
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• Attachment
(1) Pursuant to Section 119 of CERCLA, the EPA will hold
harmless and inaemnify the Contractor against any third party
liability (including the expenses of litigation or settlement)
for negligence arising out of the Contractor’s performance under
this contract in carrying out response action activities. Such
indemnification shall apply only to liability not compensated by
insurance or otherwise and shall apply only to liability which
results from a release of any hazardous substance or pollutant or
contaminant if such release arises out of the response action
activities of this contract. Further, any liability within the
deductible amounts of the Contractor’s insurance required by this
contract will not be covered by this clause. This Clause will be
modified by the mutual agreement of the parties hereto within 180
days of the EPA’S promulgation of final guidelines for carrying
out the provisions of Section 119 (CERCLA).
(A) The Contractor shall submit to the State Contracting
Officer within 30 days of award a written statement
from an insurance broker stating that the Contractor
has attempted to secure pollution liability coverage
from insurance carriers in the past six months;
(B) If the Contractor has secured pollution liability
coverage, it must submit a copy of the policy and
declaration page to the State Contracting Officer; and
(C) Every twelve months, or as directed by the EPA, the
Contractor shall submit to the State Contracting
Officer written documentation of the additional efforts
made by the contractor to secure pollution liability
insurance coverage, including:
o Copies of applications to three known underwriters
of pollution liability insurance;
o A status report of any pollution liability
insurance obtained, to include type of coverage,
premium charged, limits of coverage, deductibles
and major terms and conditions of coverage (e.g.,
a copy of the actual declaration page could be
provided in lieu of a status report);
o If pollution liability coverage was offered by an
underwriter, but not accepted by the RAC 1 a report
on the insurance offered (such as the status
report” required above), and a summary of the
reasons why such coverage was not accepted;
o If pollution liability coverage was rejected by
the underwriter, a summary of the reasons why such
coverage was denied; and
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2
o A status report on what alternative pollution
liability risk transfer mechanisms the contractor
has pursued other than commercial pollution
liability insurance (e.g., captives, letters of
credit, group purchasing of insurance, etc.).
(2) For purposes of this clause, the EPA will hold harmless
and indemnify the Contractor for liability described herein to
the extent such liability exceeds SlOO,000.OO.
(3) The Contractor shall not be reimbursed for liabilities
as defined herein (including the expenses of litigation or
settlement) that were caused by the conduct of the Contractor
(including any conduct of its directors, managers, staff,
representatives or employees) which was grossly negligent,
constituted intentional misconduct, or demonstrated a lack of
good faith. Further, the Contractor shall not be indemnified for
liability arising under strict tort liability, or any other basis
of liability other than negligence.
(4) The EPA may discharge its liability under this contract
clause by making payments directly to the Contractor or directly
to parties to whom the Contractor may be liable.
(5) With prior written approval of the State Contracting
Officer, the Contractor may include in any subcontract under this
contract the same provisions in this clause whereby the
Contractor shall indemnify the subcontractor. Such a subcontract
shall provide the same rights and duties and the same provisions
for notice, furnishings of evidence or proof, and the like,
between the Contractor and the subcontractor as are established
by this clause. Similar indemnification may be provided for
subcontractors at any time upon the same terms and conditions.
Subcontracts providing for indemnification within the purview of
this contract claus, shall provide for prompt notification to the
Contractor which is covered by this contract clause, and shall
entitle th. EPA, at it. election, to control, or assist in the
settlement or defense of any such claim or action. The EPA will
indemnify the Contractor with respect to his obligation to
subcontractors under such subcontract provisions. The EPA may
discharge its obligations under this paragraph by making payments
directly to subcontractors or to parties to whom the
subcontractors may be liable.
(6) If insurance coverage required or approved by the State
Contracting Officer is reduced without the State Contracting
Officer’s approval, the liability of the EPA under this contract
clause will not be increased by reason of such reduction.
(7) The Contractor shall:
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3
o Promptly notify the Assistant Administrator,
O$WER, EPA of any claim or action against the
Contractor o any subcontractor which reasonably
may be expected to involve indemnification under
this contract clause.
o Furnish evidence or proof of any claim covered by
this contract clause in the manner and form
required by the EPA.
o Immediately furnish the EPA copies of all
pertinent papers received by the Contractor. The
EPA may direct, control, or assist the settlement
or defense of any such claim or action. The
Contractor shall comply with the EPA’S directions,
and execute any authorizations required in regard
to such settlement or defense.
o Submit any disagreements concerning EPA
indemnification to the Assistant Administrator,
• OSWER, EPA for resolution. Decision by the
Assistant Administrator vii ] . constitute final
Agency action.
(8) Reimbursement for any liabilities under this contract
clause is available exclusively from the EPA and will, not exceed
appropriations available from CERCLA’s Hazardous Substance
Superfund (except to the extent that Congress may make
appropriations to specifically fund any deficiencies) at the time
such liabilities are represented by final judgement or by
settlements approved in writing by the EPA.
(9) Nothing in this clause shall be construed as an
indemnification agreement between the State and the Contractor.
(10) Nothing in this contract shall be construed to create,
either expressly or by implication, any contractual relationship
between EPA and the Contractor except as specifically provided in
this clause. EPA is not authorized to represent or act on behalf
of the Stat. in any manner relating to this contract and has no
responsibility with regard to the mutual obligations of the State
and the Contractor as provided herein.
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III
MODEt. EPA/RAC INDEMNIFICATION AGREEMENT
FOR RACS UNDER CONTRACT WITR PRPS
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MODEL CLAUSES FOR PRP CONTRACTS
Sec. ________ Pollution Li4bility Insurance and Contractor
Indemnifi cation
P. Pollution Liability Insurance
(1) The Contractor shall obtain such pollution liability
insurance (hereinafter insurance) as the EPA determines is
available at a fair and reasonable price at the time of contract
award. The cost of such insurance is an allowable contract cost.
(2) The Contractor shall report to EPA on its efforts to
obtain pollution liability insurance.
(A) Within 30 days of signing this agreement, the
Contractor shall submit to the EPA a written statement
from an insurance broker stating that the Contractor
has attempted to secure pollution liability coverage
from insurance carriers in the past six months;
(B) If the Contractor has secured pollution liability
coverage, it must submit a copy of the policy and
declaration page to EPA; and
(C) Every twelve months, or as directed by the EPA, the
Contractor shall submit to the EPA written
documentation of the additional efforts made by the
contractor to secure pollution liability insurance
coverage including:
o Copies of applications to three known underwriters
of pollution liability insurance;
o A status report of any pollution liability
insurance obtained, to include type of coverage,
premium charged, limits of coverage, deductibles
and major terms and conditions of coverage (e.g.,
a copy of the actual declaration page could be
provided in lieu of a status report);
o If pollution liability coverage was offered by an
underwriter, but not accepted by the RAC, a report
on the insurance offered (such as the “status
report” required above), and a summary of the
reasons why such coverage was not accepted;
o If pollution liability coverage was rejected by
the underwriter, a summary of the reasons why such
coverage was denied; and
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2
o - A statue report on what alternative pollution
liability risk transfer mechanisms the contractor
ras pursued other than commercial pollution
liability insurance (e.g., captives, letters of
credit, group purchasing of insurance, etc.).
(3) If, during the period of this contract, EPA determines
that insurance or additional insurance is available, the
contractor shall obtain such insurance.
S. PRP Indemnification
(The following are minimum clauses. PRP5 may include
additional, non—conflicting terms.)
(1) The PRPS will hold harmless and indemnify the Contractor
against any third party liability (including the expense of
litigation or settlement) for negligence arising out of the
Contractor’s performance of this contract in carrying out
response action activities. Such indemnification shall apply
only to liability which results from a release of a hazardous
substance, pollutant, or contaminant if such release arises out
of the response action activities in this contract.
Indemnification under this paragraph will apply only to liability
not compensated by insurance, not within the deductible amounts
of the Contractor’s insurance in paragraph A, above, nor within
the deductible in paragraph D, below. Indemnification provided
under this paragraph shall not exceed $__________ (amount
determined by EPA).
(2) Any liability subject to indemnification shall be
presented first under this paragraph.
(3) The PRPs are individually and collectively responsible
for the indemnification under this paragraph, unless otherwise
specifically provided within.
(4) If the PRP5 fail to satisfy the indemnification claim
within 60 nays of its presentation, the Contractor will notify
the EPA of such failure.
C. EPA Indemnification
(1) Pursuant to Section 119 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 3.980,
as amended (CERCLA ), the EPA will hold harmless and indemnify the
Contractor against any third party liability (including the
expenses of litigation or settlement) for negligence arising out:
of the Contractor’s performance under this contract in carrying
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3
out response l tion activities. Such indemnification Shall apply
only to liability not compensated by insurance, indemnification
provided in acc6rdance with paragraph B, above, or otherwise and
shall apply only to liability which results from a release of any
hazardous substance or pollutant or contaminant if such release
arises out of the response action activities of this contract.
Further, any liability within the deductible amounts of the
Contractor’s insurance in paragraph A, above, or the deductible
in paragraph D, below, will not be covered by this paragraph.
(2) This paragraph will be modified by the mutual agreement
of the parties hereto within 180 days of the EPA’S promulgation
of final guidelines for carrying out the provisions of
Section 129 of CERCLA.
(3) The Contractor shall not be reimbursed for liabilities
as defined herein (including the expenses of litigation or
settlement) that were caused by the conduct of the Contractor
(including any conduct of its directors, managers, staff,
representatives or employees) which was grossly negligent,
constituted intentional misconduct, or demonstrated a lack of
good faith. Further, the Contractor shall not be indemnified for
liability arising under strict tort liability, or any other basis
of liability other than negligence.
(4) Th. EPA may discharge its liability under this contract
paragraph by making payments directly to the Contractor or
directly to parties to whom the Contractor may be liable.
(5) With prior written approval of the EPA, the Contractor
may include in any subcontract under this contract the same
provisions in this clause whereby the Contractor shall indemnify
the subcontractor. Such a subcontract shall provide the same
rights and duties and the same provisions for notice, furnishings
of evidence or proof, and the like, between the Contractor and
the subcontractor as are established by this paragraph. Similar
indemnification may be provided for subcontractors at any time
upon the same terms and conditions. Subcontracta providing for
indemnification within the purview of this paragraph shall
provide for prompt notification to the Contractor which is
covered by this paragraph, and shall entitle the EPA, at its
election, to control, or assist in the settlement or defense of
any such claim or action. The EPA will indemnify the Contractor
with respect to Pus obligation to subcontractors under such
subcontract provisions. The EPA may discharge its obliçations
under this paragraph by making payments directly to
subcontractors or to parties to whom the subcontractors may be
liable.
(6) If insurance coverage required in paragraph A, above,
is reduced without the EPA’s approval, the liability of the EPA
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under this paragraph will not be increased by reason of such
reduction.
(7) The Contractor shall:
o Promptly notify the Assistant Administrator,
OSWER, EPA of any claim or action against the
Contractor or any subcontractor which reasonably
may be expected to involve indemnification under
this paragraph.
o Furnish evidence or proof of any claim covered by
this paragraph in the manner and form required by
the EPA. -
o Immediately furnish the EPA copies of all
pertinent papers received by the Contractor. The
EPA may direct, control, or assist the settlement
or defense of any such claim or action. The
Contractor shall comply with the EPA’S directions,
and execute any authorizations required in regard
to such settlement or defense.
o Submit any disagreements concerning EPA
indemnification to the Assistant Administrator,
OSWER, EPA for resolution. Decision by the
Assistant Administrator will constitute final
Agency action.
(8) The Contractor may present a claim for indemnification
under this paragraph only after compliance with the provisions in
paragraphs B, above, and C, below.
(9) If the PRP5 fail to indemnify the Contractor in the
amount provided in paragraph B, above, no indemnification for
that amount will be paid under this paragraph until the
Contractor demonstrates to EPA’s satisfaction that it has
exhausted all administrative and judicial claims for
indemnification under paragraph B, above, and any common law
claims for indemnification that it has against the PRPs.
Evidence of exhaustion of claims may include a judicial order
dismissing the Contractor’s claims, documentation of the
Contractor’s unsuccessful efforts to enforce a judgement against
the PRPs, or documentation of the Contractor’s unsuccessful
claims in a bankruptcy proceeding involving the PRPs.
(10) Reimbursement for any liabilities under this paragraph
will not exceed appropriations available from CERCLA’s Hazardous
Substance Superfund (except to the extent that Congress may make
appropriation, to specifically fund any deficiencies) at the time
such liabilities are represented by final judgement or by
settlements approved in writing by the EPA.
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(11) Nothing in this contract shall be construed to create,
either ezpressl or by impiLcation, any contractual relationship
between EPA and the Contractor except as specifically provided in
this section. EPA is not authorized to represent or act on
behalf of the (PRPs) in any manner relating to this contract and
has no responsibility with regard to the mutual obligations of
the (PR?s) and the Contractor as provided herein.
D. Contractor Deductible
The Contractor shall pay the first $100,000.00 of any
liability subject to indemnification under this contract before
eeekfng indemnification under paragraphs B and C, above.
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Iv
MODEL EPA/ SITES PROGRAM TECRNOLOGY VENDOR
INDEMNIFICATION AGREEMENT
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EPA Indemnjfjbation
(1) Pursuant to Section 119 of CERCLA, the EPA Will hold
harmless and indemnify the Recipient against any liability
(including the expenses of litigation or settlement) for
negligence arising out of the Recipient’s performance under this
cooperative agreement in carrying out response action activities
through the Superfund Innovative Technology Evaluation prog;am
under Section 311(b) of CERCLA. Such indemnification shall apply
only to liability not compensated by insurance or otherwise and
shall apply only to liability which results from a release of any
hazardous substance or pollutant or contaminant if such release
arises out of the response action activities of this cooperative
agreement. Further, any liability within the deductible amounts
of the Recipient’s insurance will not be covered under this
clause. If the recipient has secured pollution liability
coverage, it must submit a copy of the policy and the declaration
page to EPA.
(2) Every twelve months, or as directed by the EPA, the
Recipient shall submit to the Contracting Officer written
documentation of the additional efforts made by the recipient to
secure pollution liability insurance coverage, including:
o Copies of applications to three known underwriters
of pollution liability insurance;
o A status report of any pollution liability
insurance obtained, to include type of coverage,
premium charged, limits of coverage, deductibles
and major terms and conditions of coverage (e.g.,
a copy of the actual declaration page could be
provided in lieu of a status report);
o If pollution liability coverage was rejected by
the underwriter, a summary of the reasons why such
coverage was denied; and
(3) For purposes of this clause, the Government will hold
harmless and indemnify the Recipient for liability to the extent
such liability exceeds $100,000.00.
(4) The Recipient shall not be reimbursed for liabilities
as defined herein (including the expenses of litigation or
settlement) that were caused by the conduct of the Recipient
(including any conduct of its directors, managers, staff,
representatives or employees) which was grossly negligent,
constituted intentional misconduct, or demonstrated a lack of
good faith. Further, the Recipient shall not be indemnified for
liability arising under strict tort liability, or any other basics
of liability other than negligence.
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2
(5) The Government may discharge its liability under this
cooperative agreement clause by making payments directly to the
Recipient or directly to parties to whom the Recipient may be
liable.
(6) With prior written approval of the Contracting Officer,
the Recipient may include in any subcontract under this
cooperative agreement the same provisions in this clause whereby
the Recipient shall indemnify the subcontractor. Such a
subcontract shall provide the same rights arid duties and the same
provisions for notice between the Recipient and the subcontractor
as are established by this clause. Similar indemnification may
be provided f or subcontractors at any time upon the same terms
and conditions. Subcontracts providing for indemnification
within the purview of this cooperative agreement clause shall
provide for prompt notification to the Recipient which is covered
by this cooperative agreement clause, and shall entitle the
Government, at its election, to control, or assist in the
settlement or defense of any such claim or action. The
Government will indemnify the Recipient with respect to his
obligation to subcontractors under such subcontract provisions.
The Government may discharge its obligations under this paragraph
by making payments directly to subcontractors or to parties to
whom the subcontractors may be liable.
(7) If insurance coverage required or approved by the
Contracting Officer is reduced without the Contracting Officer’s
approval, the liability of the Government under this cooperative
agreement clause will not be increased by reason of such
reduction.
(8) The Recipient shall:
(a) Promptly notify the Assistant Administrator, OSWER, EPA
of any claim or action against the Recipient or any subcontractor
which reasonably may be expected to involve indemnification under
this cooperative agreement clause:
(b) Furnish evidence or proof of any claim covered by this
cooperative agreement clause in the manner arid form required by
the Government:
(c) Immediately furnish the Government copies of all.
pertinent papers received by the Recipient. The Government may
direct, control, or assist the settlement or defense of any such
claim or action. The Recipient shell comply with the
Government’s directions, and execute any authorizations required
in regard to such settlement or defense; and
Cd) Submit any disagreements concerning EPA indemnification’
to ‘the Assistant Administrator, OSWER, EPA for resolution.
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3
Decision by t i Assistant Administrator will, constitute final
Agency action.
(9) Reimbursement for any liabilities under this
cooperative agreement clause will not exceed appropriations
available from CERCLA’s Bazardous Substance Superfund (except to
the extent that Congress may make appropriations to specifically
fund any deficiencies) at the time such liabilities are
represented by final udgement or by settlements approved in
writing by the Government.
(10) This Clause will be modified by the mutual agreement
of the parties hereto within 180 days of the EPA ’s promulgation
of final guidelines for carrying out the provisions of Section
119 of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended (CERCLA).
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ATTACHMENT B
CERCLA (AS AMENDED)
SECTION 119
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74
76
leigh pnonty So facilities where tie. release of haewdou. substances
or pollutants or contaminwega has resulted in the ekaing of drink.
ing water wells or ha. contaminated a principal drinking water
sup?
SIC. Ill I** ACISON CONVIACI .
(a? LMaIzny o Rwtwsz Amos (bnvaAcWl& —
(1) Rwoi as wnote minIAcTvaa—A pee.o.i who isa sv
span.. actio* contractor with r ect to any eukase or Shiest-
ened seles.e of a haauvto m substanc, or polluteu.t or eantami.
nonE (ran, a e ased es bcI lit shall not be liable wider this title
or under way other Peelaul law to any paon br injuries. ceut.,
damages, es peretes, es ether liability (uwludii,g but not limited
to claims fir iiwlsnsniflcstjos, or conlribution and claims by
Mud parties far desth, pasonal h wy, illnes, or law of es
damage to property or mamuic law) which mull. (rem such
iwlesse or threatened ivies...
(1) Nwuoama , ew .—Pei mpie (1) ahall nod apply In tie.
case of a ‘vkase that is causal by conduct of the repon.e action
contractor which is negligent gmuly negligent, or which email-
lutes intentional miecersdacL
(V £,,,cr or. w aw,n &v,zoru uAaILflv—No5hj, g
in this sukactian shall affect Me liability of any paesei. under
any wananly under PedevaL Stat,, or common law. Nothing in
this subsection shall affect thee liability of an .mployer who is a
sespome action contractor to any employee of asci i eniplojer
under any prevision of laa includbug any prevision of any law
relating to worherb compen.ation.
(4) GOvuavarer.’TAL zwaorw—A state employee or an em-
ploy ., of a political subdivision who preyEd.. services vlaSbtg
to response action while acting within thee eci of his authority
as a goearnmentiil emplo e . shall has. She s,nie exen,plion
from liability (subject I. U .. other previsions of Ski. section) as
is provided to the response action contractor under this section.
fbi & vwaa P ovfaIoN&—
(1) Lssannv or omea macisa—Th, defense provided by
section 1O7(bXS? shall not be available to any pAensialiy respon-
sible gmrty with respect to an, nato es dassige. caused by any
act or amiesion of a response action cfjntractiw Except as pro
sided in subsection (aX4) and the pIrr eding witenew, nothing in
this section shell affect th, liability under Mi . Act or under
any other Federal or State law of any pesean, other then a re-
sponse actioncemtmrto ,
(1) BUaDIt# op rLAUvnrp —Nothin 4 in this section shell
afirE the plaintiff’s burden of establishing liability under Mi .
htfr
fri fa stet.iyicariorr. —
(Ii in canunu—The President may agree to hold harmless
and indemnify any respoaw action contractor meeting the i v.
‘ quirernents of this subsection against any liability (including
the expanse. of litigation or settlement) for negligenc, arising
out of th, contractor ’ . performance in carvyirag out response
action activities under thi, title. unless suds liability was
caused by conduct if the conbactor which seas gmuly negligent
or which constituEnt Intentional mioc.,nduc&
(I) APPuc4aIuTv —This sukseiiass shalt apply enly with ,e-
specS so a . aw action osevimi out under written agreement
with—
(A) the PMEdon __
(B any
a State or political aubdividue . which has entered
int, a conbuct or sliiv agreement In idanco wilts
section ltINdXl).f this Olttç or
ID? any tial y w. ru:iNejur e Ing out any
qleimont uisdsr w’t4a 111 DvtaUuI $ 1111 ite ) or seC
hon ltV ( ‘ vialing to . *k . ‘
(I) Souaci or ,v,vavm,.—Thh. aukactise, .hsU net 6, subject
to tion lxi or 1141 of title Si of the Ual t.s Lbde or
action 1751 of She Revised &atol* (41 U&C I L) or to sWion
S vi the &ips ,lbiud Amsndm.nta and ResuSka Sion Act of
Isif Per aw of action lii. meumt . nd.d psivuant
so this .uksetlo.s fee IndesseslflcstIon of any ,wome adi
cont ’ vcbA ( t . siti. . d to . ,slIy .usneI or spiraled
facilities? shall be conofd.’nd gueres ,snwistal . mate In.
curved puissant So section 11W It sufficient a,, una l-
able In the Hass ,dous ebetanco .SsbEslsed under
su&h pt.r A of chapter SI of the ntamel Resins.. Cod.
1154 So mobs payments pursuant to such indmu ,iflwtieeei or
She Fund is ,,ia than are authociaid to be appropriated
such amount. as amp be net ’, to asah i s esen*
(4) Rageeaiaiiaiz—Ai . ladsi’r.Iflc.”o . agr enS amp 6,
presideS wad.r this subssctioss aaly its ,.. P eeldsnt dstsrmlis
shot such of the kI5swl r vlromonte a,, awI
(A) Th liability coawed by the lade.njplostion wee’
mint .xm.d. es is n et cavami by lnriraaoe mailable, as a
jblr and s ble price, to the conbec ’ at the. time the.
cont ,,.Jar .nti into (I .e conb’act to pnivkb v ”s.i
action, and adsp.st . Insuran c e to oesr m.ts liability is not
generally ...il.M. at the (mae the response action a’mtmc*
Is ijst.rsd 4* ____
(B) Th. • action contractor laos .uad. diljgsnt .j
fort, to obtain luwuaw asme floss non- I .bvi eswme
to cosar such lisbiuIty
(C? I a . Me case of. . action conbeet oooni’ig more
than one Mcdll(y, She i me action ma& to
eoistiaue la male such dilijmst 4) ,ta such time use con-
tractor begins work wsd.r the contract ala new facility.
(5) Ltasmiiciai— _____
(A) LiAaturv ii —Indesanlficatios under Ski, sub
action shall jy only to response action contractor 1 10W-
it, which m.ults floss a reies.e of any kasordosw substance
or pollutant es contaminant if such release arises out of iv.
sponse action aetiviuies
(5) ivriw. AND uan —Aii i*dinSiUfl ‘W
merit under this subsection shall include deSuu .-iur . and
shall place limits on Sue amount of indemnification to he
mode available.
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78
77
I C , ,STl4C,, WITW ?OTSThtL4V AW01SW&l M i-
(0 WN W ii ,ts i’4ii doulding whether to
enter Into oai Indemnifleatlan umsot with a
opON.I athori am tmctor ean g 0000 uwittais ambact
or aiiwm .nS with easy potentially ,w. up i.ibk tarti ,
the PmsId.nt 111011 d.tes,nlne III aINOIUSt which else pa
toistlally rurjp00 1ibl . party is she to 1nd .mndj Oh. aiS
The FMido,J may enter Iota such an lisdemni-
fleatlon on Use ? esldwi1 determines
that such ansowit of j.danniflcasson I. ,.d.quate to
casur ai r . u.oswble ttol liability of the cantsnc-
Sr aiiiu sat of lid. comb.ctirb aql4 n1a hi
fesming Use wsitmct ar usouS with ouch party.
President stasiS make the ditm s1isatwna In Use paced-
ing matinees (with suppwt to the amount and tid, ad..
quacy of She amount) Sabme Into & wit 11w total net
smote said mowmo of p. IIUSUy .iaipendbb parties
wills su t to (ide facility at the lime of ouch tetinni-
(it) Qw,inriow&—The ? acideist may pay a claim
under an indemniflcal lors_ i wm.usS . ØssiuI to has
cla,uèe (t) far the amount d,L...Jased wider cIg ’n . (U
cast, 4f else coastructar has ahaiselad alt administrative,
judicu4 and awussian law claims fr lndensis4jloution
against all psO.ntially vuirponslble petim participating
in the clean-up of the (acuity with , ...ut to the liabil-
ity of St .. contractor athing out of the cusstnictorb aiq-
liganc. in p .i farming the cwstmci or m .nt with
saris party. Such lndemniflcctias mswnt shall ta-
quir. such contractor to pay any deductibli established
under autpruragvap& (B) kjbra the ambactar may i v-
coenr any amount fruit the potentially .vsponitble
pvty or under the lndecs.s4fE at1On al,wmeIsL
(U) SILiCA PAaun —NO .soner or operator ofa facility
sagulated under the Solid Wait. Dispi& Act may he in-
demnifleri under tins subsection with v t to such facili-
N W$ lt?AINID 01 11*10—A pe.aos retained or
hued by. anoas described in subsection (eflAW shall he
dig IN. )‘or Indemnification under this subsectio .s only If
the President specifically aaun. . of Use c*faining or
hiring of such pr,on.
(6) r a iuv.—Pbr pupaum of section 107 , amounts ac-
pended pwsu.nl to eMs subsection far Ind.mniflontlois if any
pemoas who is a meposuc action contractor with jp .r ( to any
ralease or thuwatened selmse shall be ainsldered a mot of iv-
pan incuPrsd by the United Slates Govcu smenl with ,acp.ct
to such mm . ,.
(7) RouvL4uoava. —The President shall pemulgate , ula .
lions (or carrying out she previsions of this subsection. &fa.v
promulgation of the regulations, the President shall develop
guidelines to carry out this section. lbuelopmeasl of such guide-
lines shalt enclud reasonable opportunity (or public comm..’t
(8) STvsr.—The t .ui..Jha. a1 shall conduct a study Is
the fimol jr .ndl’ 1Iess6sr 4 lflJ on She lioction of
tins su tws, Including whether iadeusniflcuatioss asesenscasts
under Mi. aubsoetlois are king the number of clàimo that
have kiss filed sander such awl the n for this
iu ticn. The (b.spbeliir Oisul shall . r, the findium of
the study to ( svpmo no later than Sailsssber * ISti
(4) &cv ’no -The ae tiess pra ua subsection (at and
sh, authority of tide Pr—’drst to .(J laidensisiflcatkm tinder sukic
th at (ç) shall not a ly to an y iacas coaw’sj h. p th . of
pansgnsph (IA 4*4 ( or (4) of section I & with —y*1
or Shreatencal ,wI eanmoned if such pernea
ered by such pruvi.ima esun if suet. son had not
oet.ons , ,,4 tom eak&llos (alofilal. motion.
(e) DwNmoNa —Pa’psupaso. of this section—
(I) Rnwa , ecrsw *scst—Th. Sans i punae action
contract “ smens any smitten contract or agmement entered Into
by a repome action contractor (as defined In ponrgrapls (8XA)
of this sutaecSIor.) with—
M) the ? Wd.n
(B) any Wend ogancy
(C? a State or political .uMivsnon which has easteresi
into a contract ar aw!leratiere .grmmenl in accordance with
section IO4(dXl) of tins Act or
(D) say p404.J1a 1 1 7 reipumsibl. party mnysiug out an
agrw seist under lson ,t or lS
to provide any remedial action under this Act at a facility
list.d on the I’latiwsal Prioriti List or any rensosral under this
Ac with r a&t 1. aasy vt or Shj’wg.ned relies, of •
ordous substance ca pollutant or contaminant ft.... the facility
or. to .provide any auialuatios, , planairv _.ngincarinj summing
and dwiv, construction, aguapasent , or any ancu llwy
serviaw theaWo far such facility ___
ii) R,ouai S rascms . —The tern, “ macpeasse
action asntmcSr” means—
Wany-
(I) pn.. wh. enter, into a respons, action contract
with nqreS to any swt or Shreteased releas. of a
hazardous substance ca pollutant or contaminant ft...,
a I I 1Ity and is carrying out such contract and
(ii) p.. n , puh& or sousp,fiS phase inSi1 ci i i-
a field du.snsbeticas par is ianS So section
(B) aQg n who is or *IuI by a person do’-
scribed us eutçw uph (Alto pevide any servirm relating
So a ragionse a tios.
(2) Ii vazrac&—Th, term “Iu.urance” mesas_liability insur-
aam which is fair and usably priced. a, dckruwin& by the
President, and which is made assulable at the Sin ,. sh , contrac
tea enters into oh. , ns, action contract to provide response
• (fl(bw ,-iuuiut —R ionse action contractors and aukontrcwmn”
for p’agrum manoponsent. ron.i”•’
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Ou
in ailinted in oom.danc. with ilU. I X of list hderul ?Pvp.My and
Administrative &rvime Act of S4S. Th Federal ndorSion p,vco’
dame shall aji,ly to ajin riag, contract, n uUa1ed by all F&leiul
inflUIiInt OI atriw Iiwohud ía ann, out this Act &ich pvoa
be Mlos’ud by r pome action contractoeu and .u ,s-
1 1* PI1flIL aaun
(&Am crnow o,Acr ,ro Feow& GoUNJllNi —
(1) IN GINSL&—lch dejawSmsul acy, and lastnimsntal-
it, of dies United Stat . fmcIudü g Mi sucv1iv lqisktive
and Judicial brvacis q gesmnsmendi shaft in .ukierS t and
comply sdt aisle Act an she uswvser and to ii.. an..
tmnS, beth pnwadumlly and ink l&vly, as any aongoI*v*
nWSLOI eRti( including liobill y nad i r sestloss 1t17 of this Act
Nothing in this union shall in consSnssI to offal Me liability
of anypwvon or entity under aulians l( aaed 107.
ii ) APPUC4YICW O aeqviamezmv 10 PUPAIL Aau7me—
All guidelia rule,, iquloiionai and aitmia which arc appli-
cabk W.pvlinuiw i —..-,rts outdid out wider this Act ftr
(odIum at wields hamedous sutatancu arc located, applicablo
to evaluation, of such !àcilitlu under U.. ? itksw,l (bstiiten p
Plan, applicable to inclusion on the National PWaritm Llót, or
applicable to tumadial actions at such thS1. shell alas in
aqdkable to (odlitlu which arc owned on Sad by a d i ’
parImeni, ggvncy or instrunsentality ofMi United &.t. In Me
some manner and to list asSent as such guild.lia nil.. sagu-
laUo and criteria arc applicable So oilier .jbcllitias. No di’
,wrtnsent. or inatnsmentality of tie. United Stat . may
adopt or utsli,e casy such guidelisuø, rsal, r saMtions.. or crite
rio which arc uscon.lsS.nt with she guldeknas. ruls esgula.
5ioiu and criteria established by the Adn,lrd.SraIor under this
Act
(a) zcm,ors& —This suineclion shall not apply So lii. extent
otherwi.. provided in this sections with rmp.a to applicable
time periods. This sukecfios shah also not q Iy to an, ,*
qulr.ments relating to bending iaswuusce, or flawicial jwn-
siMhitj MiMing in th ai. Act shall 6. onustruid So require a
State to comply With section 10I(cWS) in the cow of a facility
which i. owned or qiervt.d by any department, agcn or in•
ama mentality of the United Slat..
(4) Smva s.4w& —State lowe ainverninf genemal and temedi-
al action, including State law. regarding .nØwwssent, shall
apply to sumoval arid 4emadiol action at óciIiti. seine.! or
e r at ed by a department, a acy. or ijsstrvmentolity of
United Statse when such (acaliti. arc not included on Me No-
tional hloritiss 14.1. The pae eding wetmar shall not apply to
the extent a Stat, law would apply any standoni or require-
ment to such facilities which is more stringent than thee stand-
and., wed requirements appliteble to facilitIes which we not
owned or operated by any such department, agency, or instru-
mentality.
(b) ‘ “cg —Fach department agency, and in.trw,senSolit of th at
Un , fee shall odd to the inventory of Federal agency -
c i . , west. t ciliti. required to be sithnultted nadir sections JOL of
the Solid Wait. D’. al Act ii. addition to the üiftrmatIo.s is.
quired sender motion XI*a*tS) if ouch Act) iiqbrraaiio ., on constami-
nation lh,m ouch bcility or opas by the department .
.r instrwswustaftty If .ini affi t . contiguous
or adjacent pvperty seined b’y U.. d,W1*uS. cj or instnu,scn.
talit or by any other p.r..n , Including • deriptio. of tie. monitor-
ing data obtained.
(a’t P inau Aosiii r Nst4aooia Wem (bvn.weci a, ’..—
The Administrator shall establish a opacimi siwl 4ency .d.
cue Waite (.bmse’iamo Thachet (havinci b’ in this tso s
as tha. “dacl.’ which shall matola ouch of the llowuiug &
(I) All lnjbrmatjon submitted under sartbm XIS if
Waste lis qrvsol Act ..d aubmotton (h? of this fios
any Federal facility and i.oil. if oath uent actions tab
under tie is Act with impart So di e s facility.
iS) Infan,uations submitted by such dipertas.nt ainam,. or in-
strunsentahity if She UaiSml Stat, under cs ion J or WI0 if
such Act.
13) Infameation suinsittid by the department, ,scy . or iii.
sinamentalily sindm- tions 103 of Skis Act
‘ 17 .. docket shall be available br public inqenlle.s at reasonable
tirnoc Six months after .tablwhment if the docket and army S
month. tkervafter tie. Administrator *&.ll publish in the Federal
Register a list if the P WarnS Ibcilition which have barn Included in
the docket during Ma mmmsdiately p’ ises S-month period. Suds
publication shall also indicate wh ir , in the o ’aprsaSe regional
of She Rnviravr aeistaI Pndortio. Agency ad&tin al iaflwmri-
tins may 6. obtaIned with suspect So any facility a. the docket The
Administrate.- shall ar abIish a p’r rans So provide infon.satio . to
the public with seeped to faciliti, which aiw included in the docket
under this siahacta..,.
(di Aseeemesnr eaa Rveu,a, —Nai later than IS nsasth.
after the enactment if She &ibad Aawadns.nt. and Rensish..--
izatlim Act of 1SSS the Adnitaiotrakr shall take ete,it to aesur.
that a pvliminasy I1miLeuI Is aissductud ( sir meh falSity on Me
docket Following such p’ilimins.y rut-u .mt , the Administrator
(1) evaluate such facihitbm In aseordaiuce wills Ike cdlerlaes .
Sablished In aan.*nai with section IN under thee Notional
Plan far det.wninlng prioriti, among rcha.
IS) irichidi inch facilities on the National Priorisi. 14..
mainta’..d under ouch plan If the facility nesete such criteria.
Such criteria shall be applied in the sense manner as the criteria
arc applied to faciliti, which as, issued on- qusated by oilier per-
sons. &.Iuation and listing under this subsection shall be complet-
ed nos later than X months such date of enactment. Upin tile
receipt of a petition ftc.. tile Ucierrior of any State, the Adnunsasra-
tar shall make such, an evaluation of any facility included in tie.
dqehet.
.) Riqwsar. Acnor, as’ L pwraesNI —
(1) RhPS —Mis later than 6 months after the snclugwn of any
facility an the National Prioriti List, She department. n
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Sjgniflcant New Legislation-Federal
Ern pIqy 1 ees Liability Reform and Tort
Compensation Act of 1988
-------
iIO
F
_____ UNITED STATES ENVIRONMErITAL PROTECTION AGENC
WASHINGTON DC O26G
4 c 1%
-
...cC 30
rr,:c r
..E’. _ - J SE .
MEMORANDUM
SUBJECT: ,Significant New Legislation — Federal Employees
Liability Reform and To;t Compensation Act of 1988
FROM: Craig Annear -. /1 -
Associate General Counsel
Grants, Contracts and General Law Division
TO: General Counsel
Deputy General Counsels
Regional Counsels
Associate General Counsels
Assistant General Counsels
On November 18. 1988. the President signed into law the
“Federal EmDloyees Liability Reform and Tort Compensation Act of
1988.” P.L. 100—694 (copy attached). The purpose of this Act is
to protect Federal employees from personal liability for common
law torts committed within the scope of their employment while
providing persons injured by sucr acts with a remedy against the
United States.
This Act was in response to the United States Supreme
Court’s decision in Westfall v. Erwin. 108 S. Ct. 580. 98 L. Ed
2d 619. 56 U.S.L.W. 4081 1988) . In Westfalj. the Court held
that Federal employees have absolute immunity from state-law ‘ort
su ts only to the extent that their actions were within the scope
of employment and were discretionary. The Act changes the
Westf all standards by requirinq that a Federal employee only has
to show that he/she was acting within the scope of employment to
be absolutely immune from the tart suit.
The Act provides that suit a inst the United States under
the Federal Tort Claims Act. 28 U.s.c. 2671 et q.. is the
exclusive remedy for a person n”ired by the tortious conduct of
Federal employee who is ac nq within the scope of hisiher
em ioyment. The Act applies oniy o common law or state-law tort
snir . It does not cover n 2ieaed violation of the
Constitution of the United St es or a violation of a statute of
-------
the United States undet which an action against the individual
is otherwise authorized.
The Act authorizes the Attorney General to determine and
certify that the employee was acting within the scope of
employment. Where such certification is made. an action in
Federal court is deemed sn action against the United States with
th United States substituted Zor the named employee. Where the
act.on is in State court, following certification the Attorney
G &eral is aut rized to re tove the suit to Federal court and to
subst .t.ute the United Stater for the employee. Ac ditiona1ly . the
employee s given the right t have the issue of scope of
employment determined by the court where the Attorney General
refuses to certify. The Act is effective for all claims, civil
actions. an proc- edings pending on, or filed on or atcer
N:t’ mber 18, 1 8.
if yo : have questions or require additional information, Ray
Spears. of my staff. is available to assist you. Ray can be
reached at FTS 382—4548.
Attachment
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OSHA Final Rule, Hazardous Waste
operations andEmergeflCy Response
(29 CFR 1910)
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Monday
March 8, 1989
Part Ill
Department of Labor
Occupational Safety and Health
Administration
29 CFR Part 1910
Hazardous Waste Operations and
Emergency Response Final Rule
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9294
Federal Register I VoL 4 NO. 42 Monday. March 0. 1989 1 Rules and Regolatio s
DEPARTMENT C? LABOR
0ccupsdon S end Hs
29 CER Part IUO
10es st No. S-7SOAI
Mamedous Waste Operations and
Emergency Response
aaencv Occupational Safety and
Health i i ”ii’tretioi Labor.
actio* Final rule.
su $*Y The Occupational Safety and
Health Asbntni tratiOn (OSHA) Is
amending the OSHA et ” d for
hazardous waste operations and
emergency response found in
igiaiza This final rule will replace the
existing interim final rule required by
Congress in the Superfund Amendments
and Reauth Or i atiDfl Act of 1918 (as
amended) (SARA) (Pub. 1.89-499.29
USC 655 note). When this final rule
becomes effective one year from today.
the interim final rule promulgated
December10. 1908(51 FR 45654) will be
revoked. The Interim final rule remains
in effect until thee. The Notice of
Proposed Rule 4 ng for this final rule
was published an the Eedsssl Register on
August10. 19 57(52 FR 29620).
This rule will regulate the safety and
health of employees Involved in dean-
up. ope’* c i . .u i plied barar’ ’us
wags Ites being domsd-up wi
government m te. In certain
hazardous waste freatmsnt. storage. end
disposal (TSD) operations conducted
under the Resowus. Conservation and
Recovery Act of 1975 U
(R A ) [ 42 U.S.C. egoist sag ), and Lu
any emergency response to ineldm 11v
involving hawdous substances.
This standard provides for employee
protection during initial site
characterization and analysis.
monitoring activities, materials h. a4Hng
activities, framing. and emergency
response.
oaram This fine! rule will become
effective March 9.1990.
Paperwork authorization baa been
granted by the Office of Management
and Budget (0MB) under control number
1218-4 1139.
anonsee . In compliance with 28 U.S.C.
2112(a). the Agency designates for
receipt of petitions fur review of the
standard. the Aaso te Solicitor for
Occupational Safety end Health. Office
of the Solicitor. Room S-sacs. U.S.
Department of Labor. 200 Consdt dOfl
AvenusNW.. Wasbingt ofl. DC 2021
coo amu - CON?*C
Mr. James F. Foster. U.S. Department of
Labor. Ocmipedonsl Safety and Health
AdselulatratI an. Division of Consumer
Affairs. Room N-3847. 200 Constitution
Avenue NW.. Washington. DC 20218
419L
aup,uuswT*av meoom noso
L Background
Th. U.S. Environmental Protection
Agency estimates that approxImately 57
million metric tons of hazardous waste
are produced each year in the United
States. 1 These wutes must be treated
and stored or disposed In, wnar that
protects the environment from the
adverse affects of the various
constituents of those wastes.
In response to the need to protect the
environment from the Improper disposal
of these hazardous wastes. Co ess.
over the years. has enacted several
pieces of legislation intended to control
the nation’s hazardous waste problem.
Federal laws passed in 1996 ‘end 19701
Initially addressed solid v sste disposal
Several other pieces of legislation have
been enacted by Congress that have
ultimately led to the development of this-
rule and they are discussed below.
A. The Resouzue CoasezvvtIOfl and
Recov.r,ACt of 1976 -
The flat comprehensive. fidoraleffolt
to deal with the solid waste problem In
— and hazardous wait.
specifically, came with the passage of
the ReaaaesConI&Vetiaa end..
R 5 i.,siyAot1l975(RCRA)”
pzovtks the development of federal
end state s—---- for otherwise
imregulstsd land disposal of waste
matettilo end Re ’the development of
resource Iac..VerJ ptC97$mL it regulate ’
anyone ongugad In the meatlon.
truapeitatlue. tzestre and dispoeal
of “hazardous wastes.” It also regulates
facilities for the disposal of all solid
wastes and prohibits the use of open
dumps for solid wastes In favor of
requiring sanitary I’-
There are, however, many haurdoui
waste disposal sites that wore muted
prior to the passage of RCRA. These
sites are often abandon”d and contain
unknown quantities of unknown wastes.
B. The Coinpaeharzsiv.e Ens’inrnmeflSoi
Response. Compensation and Liability
Act .129*)
in response to the need to clean -up
and properly reclaim these pre-RCRA
• US. £Ev u M1 P1ItS tO 5 A11q.
9b.d7bldj’ Ptsb fl... . .J. . ... W la sit 115101
$ &Itd Wed, 0’ ç—1 Ad. L. No. 51.VL79
Stat IS.
• Rus.zss la.au.y A . Pub I.. No. J1312. IS
Slat 140’ mad Pub. ListS. V Stir II.
sites. Congress enacted the
Comprehensive Environmental
Response. Compensation. and Uabthty
Act of 1080 ( CL&)’ commonly
known as “Superfuad.” Superfund
established two related funds to be used
for lbs Immediate removal of huardous
substances released Into the
environment. Superfund Ii intended to
establish a mechanism of response for
the immediate clean-up of hazardous
waste contamination from acth 4 mital
spilhi end from chronic environmental
damage such asia aisodated with
abandoned hazardous waste disposal
sites.
The treatment and disposal of
hazardous wastes under RCRA and
CERCLA creates a significaut risk to the
safety and health of employees who
work In treatment and disposal
operations. Exposure to hazardous
westes through skin contact. skin
absorption. and ‘ fton pose the
most sign4flc ’t risks to employees.
Employee po.ure to these risks oomrs
when .mptnyeue respond to hazardous
substance or waste emergencies. when
they work with hazardous wastes dsn ”
storage, treatment and disposal
operations or when they participate
- clean-up of abandoned-wait. sin..
This tisk of exposure and lb. need for
protecting employees exposed ta
hazatdous wastes Is addressed In the
“Superfutid Amendment. and
RdaulhwizatiOn Act of 19eV ’ (SARA).
C supesfundAmefldmaste and
ReauthoriZabon Act
On OCtober17. 1988. the Pr.’ ’
signed Into law the “Superfimd
Amendments and Reeuthorisetiou Ad
of l988 ’ (S AR A ). ° As part of SARA. In
section 126 of Title L Co ess
addressed the risk of ln)ury to
employees by providing that the
Secretary of Labor ( “Secrsthryl Issue
Interim final works’ protection
regulations withIn 89 days after the date
of enactment of SARA that would
provide no less protection for works’s
engaged In hazardous waits operations
than the protections contained In the
U.S. Environmental Protection Agency’s
(EPA) “Health and Safety Requirements
for Employees Engaged In Field
Activities” manual (EPA Order 1440.2)
dated 1981. and the existing OSHA
standards under Subpart C of 25 CFR
Part 1926. OSHA published those
Interim final regulations in the Federal
Register on December19. 1908 (51 FR
45854). A uurectlon notice wad
published on May 4. 1987(52 FR 16241).
• U.S.C. sear .i
• Pub. I.. 1040.
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Federal Register / Vol. 54, No. 42 I Monday, March 6, 1989 I Rules and Regulations
9295
With the exception of a few provisions
that bad delayed start-up dates. OSI-tA s
interim final regulations became
effective on December19. 1986 in
accordance with section 126(e) of
SARA. and apply to all regulated
workplaces until the final rule
developed under sectIons 128 (a)—(d)
becomes effective.
Section 126(a) of SARA provides that
the Secretary shall” • pursuant to
section 8 of the Occupational Safety and
Health Act of 1970, promulgate
standards for the health and safety of
employees engaged in hazardous waste
operations.” These standards must be
promulgated within one year after the
date of enactment of SARA. This notice
completes the development of those
standards by issuing a final rule based
upon the proposed regulations as
Indicated In sections 126(a) and 126(b)
of SARA.
Pursuant to section 128(c) of SARA,
the final regulations issued today are to
take effect In one year. Section 126(c)
also provides that the final regulations
are to Include each of the worker
protection provisions listed in section
128(b), unless the Secretary determines
that the evidence in the public record
developed during this rulemaking and
considered as a whole does not support
inclusion of any such provision. A
discussion of the public record for this
rulemaking and the changes made to the
proposed regulations Issued August 10,
1987 follows.
This final rule has been adapted from
the language of the proposed rule.
Changes have been made to address
more fully the provisions which
Congress directed the Agency to cover
and the comments made in the public
record. OSHA utilized several sources
for the proposaL These included the
EPA manual entitled “Health and Safety
Requirements for Employee. Engaged in
Field Activities” (1981), the language of
OSHA’s safety and health standards in
Subpart C of 29 CFR Part 1926 and
various documents Issued either jointly
or separately by the EPA, OSHA. the
U.S. Coast Guard, and the National
Institute for OccupaUo Safety and
Health (NIOSH).
OSHA specifically used the joint -
OSHA/EPA/US G/MOSH manual
entitled. ‘Vccupatjonaj Safety and
Health Guidance Manual fo,. Hazordo s
Waste Site Activities” (Preamble
Reference 8). as an outline in preparing
the interim rule and the proposed rule.
This manual was developed as a result
of the collaborative efforts of
profess ional. representing the four
agencies. These professionals, who are
knowledgeable In hazardous waste
operations, worked with over 100
experts and organizations in the
development of the criter ’.a contained in
this manual. The manual was published
in October1985 and is public
information. The manual is a guidance
document for managers responsible for
occupational safety and health programs
at inactive hazardous waste sites. The
manual Is intended for use by
government officials at all levels and
contractors involved in hazardous waste
operations. The manual provides
general guidance and is intended to be
used as a preliminary basis for
developing a specific health and safety
program for hazardous waste
operations. Further, the major subject
areas listed in section 126(b) of SARA
are nearly identical to the major
chapters In the manual.
Based upon the extensive public
comments and hearing testimony,
OSHA has modified the proposal. The
final rule takes into account the entire
record. In addition, the language of this
final rule clarifies some areas of
confusion in the interim rule that OSHA
has identified during the public
comment period and since the
promulgation of the interim final rule.
The final rule also reorganizes some of
the sections to clarify the standard.
D. Regulator,’ History
The Superfund Amendments and
Reauthorization Act of 1986 (SARA)
gave the Secretary of Labor 60 days to
issue interim final regulations which
would provide no less protection for
workers employed by contractors and
emergency response workers than the
protections contained in the
Environmental Protection Agency
Manual (1981) “Health end Safety
Requirements for Employees Engaged in
Field Activities” and existing standards
under the Occupational Safety and -
Health Act of 1970 found In Subpart C of
Part 1926 of the Code of Federal
Regulations. Those interim final
regulations were to take effect upon
Issuance and would apply until final
regulations became effective (SARA,
128(e)). OSHA Issued its Interim final
regulations on December19, 1986(51 FR
48654).
SARA also Instructed the Secretary of
Labor to promulgate, within one year
after the date of the enactment of
section 126 of SARA and pursuant to
section 6 of the Occupational Safety and
Health Act of 1970, standards for the
health and safety protection of
employees engaged in hazardous waste
operations (SARA, section 126(a)). On
August10, 1987 OSHA Issued a Notice-
of Proposed Rulemaking and Public
Hearings (52 FR 296W). That Notice set
forth OSHA’s proposed language for Its
final rule and announced public
hearings that would be held to gather
further information to aid the agency in
developing its permanent final rule.
Informal public hearings on the
subject of this rulemaking were
scheduled and held to afford interested
parties the opportunity to comment on
OSHA’s proposals. The hearings were
held October 13-16 and 29—21, 1987 in
Washington, DC and October 27—28.
1987 in Seattle, Washington. The
hearings originally scheduled for San
Francisco. CA in the August 10. 1987
Notice of Proposed Rulemaking wete
rescheduled for Seattle. WA In an
October 13, 1987 announcement (52 FR
37973).
Testimony from over 40 witnesses
was presented at the hearings. Further,
over 30 post hearing comments were
submitted to the record of this
rulemaking. In addition to the public
hearings and the testimony received in
response to those hearings, OSHA
received over 125 written comments on
its proposed language for a final rule.
IL Summ ery and Explanation of the
Standard
Paragraph (a)—&ope, Application, and
Definitions
1. Scope. OSHA proposed to define
the scope of this Snairule In paragraphs
(a)(1) and (a)(2). “Scope” defines the
specific worker populations to be -
covered by this rule.
The scope of this rulemaking has been
an Issue during the development and -
promulgation of the final rile. OSHA.
requested specific comment on whether
the proposed rule was appropriate,
Eastman Kodak’s comment (10-38)
states, “The preamble of the proposed
standard at page 29622 requested
‘specific comment on whether (OSHA’aj
Interpretation of scope Is too broad or
too narrow.’ The scope of applicability
of the standard, especially with regard
to ongoing operations at hazardous
waste management facilities regulated
under RCRA and/or corresponding state
programs, appears to be appropriate.”
While the language of the final rule Is
somewhat different from the language of
the proposed rule, the four major areas -
of scope remain essentially the same.
These four areas of scope include (1)
clean-up operations at uncontrolled
hazardous waste disposal sites that
have been identified for clean-up bye
governmental health or environmental
agency, (2) routine operations at
hazardous waste treatment, storage and
disposal facilities or those portions of
any facility regulated by 40 CFR P rts
264 and 265, (3) emergency response
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9296
Federal Register / VoL 54. No. 42 I Monday. March 6, 1989 1 Rules and Regulations
operations at sites where hazardous
substances have been or may be
released, and (4) corrective actions at
RCRA sites. In addition OSHA has
clarified that the agency intends to
cover voluntary clean-ups at
government Identified sites.
OSHA’s proposal addressed the three
specific populations of workers at the
above operations. First, it was proposed
to regulate those operations where
employees are engaged in the clean-up
of uncontroiled hazardous waste sUes.
These operations include those
hazardous substance response
operations under the Comprehensive
Environmental Response.
Compensation, and Liability Act of 1980
as amended (CERCLAJ, including Initial
investigations at C CLA sites before
the presence or absence of hazardous
subs lances has been ascertained, those
major corrective actions taken in clean-
up operations under the Resource
Conservation and Recovery Act of 1976
as amended (RCRA), and those
hazardous waste operations at sites that
have been designated for clean-up by
state or local governmental authorities.
‘The second worker population
proposed to be covered included those
employees engaged in operations
involving hazardous waste treatment.
storage. and disposal (I’SD) facilities
regulated under 40 CFR Parts 264 and
265 pursuant to RCRAI except for smell
quantity generators and those employers
with less than 90 days ai mukUon of
hazardous wastes as defined in 40 CPR
28 34.
The third and final worker population
proposed to be covered were those
employees engaged In emergency
response operations for releases or
substantial threats of releases of
hazardous substances, and poet-
emergency response operations to such
releases at all workplaces.
In paragraph EaXl)ti) of the final rule
OSHA Is regulating all govenunent
mandated clean-up operations at
uncontrolled hazardous waste disposal
sites. These operations were Included In
paragraphs (a)(1)(l) and (s](1j(th) of the
proposal. For the purposes of this final
rule. “Superfund” and other
uncontrolled hazardous waste disposal
sites include hazardous substance
response operations at sites regulated
under 40 CFR Part 300, Subpart I RCRA
closure activities conducted under 40
CFR Part 285, Subpart C: and those
similar uncontrolled hazardous waste
disposal sites that have been designated
for clean-up by Federal. state or local
governments.
OSHA Intends and the ehange In
Language c)arifl.s that all government
mandated clean-ups are covered. These
include not only sites on the venous
‘Superfund ” lIsts, but also ail other
government mandated clean.ups as
well. The changed language makes clear
that such dean-ups are covered whether
or not they are financed by the
government. The Language further
clanfles that dean-ups mandated by
any level of government are covered.
In paragraph (a)(1)(ii) of the final rule,
OSHA Is regulating corrective actions at
RCRA facilities. This paragraph adopts
the language proposed in paragraph
(a)(1)(ii) of the proposal with one
change. The terul ‘major’ has been
deleted asa modifier of “corrective
action.” Several commentere requested
clarification of the term “major
corrective action.” International
Technologies, a major hazardous waste
clean-up contractor, requested in their
comment (10-44). “Please clarify ‘major
corrective actions canducted under
RCRA.’ What distinguIshes ‘major?
corrective actions from other corrective
actions?” The State of Indiana
commented (1043). “There Is no
definition of what constitutes a ‘major
corrective action’ under RCRA..” In
addition. the terra “major” is not used In
EPA terminology.
“Corrective action ’ Is a Ideas unique
to RCRA arid has been defined for use
with RCRA. OSRA’s addition of the
modifier “majo raised many
definitional questions. Therefore OSHA..
In the final rule. Is deleting the word
“major” to be consistent with EPA
terminology and eliminate confusion.
Rather than define “major corrective
action.” OSHA. Is am ” ” ’ 4 i’ g the
language of the proposal to Include a
phrase describing the level of coriecth’e
action that Is to be regulated in the
scope of this rule. OSHA will be
regulating those corrective actions that
potentially expose employees toe
“safety or health hazard.” OSHA Is not
concerned with those corrective actions
that are intended to abate
environmental risks without exposing
employees to safety or health hazards.
The phrase “safety or health hazard” in
the Introductory language lathe phrase
that OSILA has used to differentiate the
type of releases that this standard
regulates versus those release that may
pose only environmental threats rather
than safety or health threats to
employees.
OSHA has decided to add anew
paragraph (aKl)(iit) to the final rule that
would include within the scope of this
rule those voluntary clean-up operations
conducted at SItes recognized by
goveranrental bodies as uncontrolled
hazardous waste disposal sites. All
other voluntary clean-ups would be
exempt from 20 CFR 1910.120. OSHA
does not have the statutory
responsibility to identify hazardo
waste sites. ft wilt leave to agencie..
with that authority the responsibility to
identify those sites. Those voluntary
sites that ace not recognized by the
government as uncontrolled hazardous
waste disposal sites would be exempt
from 29 CFR 1910.120. however, they
would still be regulated by the other
OSHA general industry or construction
Industry standards applicable to the
work being performed at the site.
OSHA did not propose to cover
voluntary dean-ups of hazardous
substances in its proposed rule. Many
comments suggesied this, however, the
Agency has concluded that individuals
Involved lit voluntary clean-ups may be
exposed to the same safety and health
risks at voluntary sites identified by the
government whether or not the
government Is compelling action.
However, It would be difficult to k . w
whether or not sites not identified .y the
government are hazardous waste sites
without a structured evaluation system
for such potential sites.
OSHA raisecf ’an Issue on the scope in
the preamble to the proposal that
generated several comments. On page
29622 of the preamble to the proposal.
OSHA listed several ‘ ISO facilities thr
would not be covered by the final ruT
The exemptions were taken from a &
published by the U.S. EPA that are riot
directly regulated by U.S. EPA.
However, the proposed standard’.
language did not grant these
exemptions. Comments did not support
the exemptions and OSHA did not
believe that they were appropriate.
The particular exemption that
generated the most comment exempted
those TSD facilities which operate under
a state hazardous waste program
pursuant to RCRA section 3006. These
state hazardous waste programs are
recognized by U.S. EPA ma similar
fashion to the OSHA state plan states
under section 18 of the OSH Act. A
number of comnmenters. such as the
State of IndIana (10-23). objected to this
type of exemption by OSHA as not
being appropriate. They stated OSHA
jurisdiction should not be impacted by
U.S. EPA state agreements. but only
those state agreements provided In the
OSH Act. OSHA agrees with these
commenters and therefore OSHA
jurisdiction will be delegated to only
those slates which OSHA has formal
agreements with under the OSH Act.
However. It should be noted that the
U.S. EPA jurIsdictions under SARA
section 129 may make use of their stat.
agreements.
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- F • ‘a. stsrf VoL 04. Ne. 42 / Monday. March 8. 1989 / Rules and Regulations
s7
Other cemmontars. CCON 41043)
and ONOGQ that
O 4A Incorporate the e—ptlona an
page 3001 e.’r .spsi,ts paragraph In
the final 111.. -.
Typical TW fmilIIIes rsngafrom the
hazardous waste generator with a
hazardous waits storage ares to thr
large. complex hazardous waste
disposal facilhty A estimates that
approximately g o percent of .11
generators alan treat. store. ordlaposs of
thet, hazardous wastes and thereby
qualify as a TSD fasility. Over
TSD facilitlu notified ‘A In 1990 that
they would qualify for regulation under
section 3004 of RCRA.
OSHA continues to regulate R A
TSD facilities In paragraph (a)(1)(iv) of
the flna lr u le.s itwasproposed In the
regulatory language of the proposaL The
hat of exemptions on page will not
be i! I!Iwpnhated Into the final rule.
OSHA believe, that sunk a list would
create too great a gap In the p’ c’ 4
of workers. For example, with respoct to
workers at ISD facilities operating
wader a state hazardous waste program
pursuant to R A section 3008. OSHA
agrees with a e— ” ”t made by the
state (1043 1 that It Is
possible that the workers In those 42
authorized states 1 1 4 d by IiiiIlan .
could be without the peujemiona
, .t i .d4pd by Congress.
in paragraph ( .1(1Kv) OSHA would
continua to rsgslate emergency m . .ii
operations for sF-s .1. or substantial
threats of re’— - of, bazerddes
su*mtelics without regard to the
loonthra of the eperstmon a. proposed In
paragraph ( a 1 (2) of the peri 1 .aL Such
a ency [ e lf ]nhIUpal*daas ate not
limited to those responses at
disposal
uRea or 8f A1 facilities. With
reaped tO U outatlon Incidents.
responders to tke scena are but
op tors ( l a. trunk wuii aDd imkfl
— are not d iml- . they
become actively ivi . in the
JHI L
0911* to ma major revietsuas to
proposed paragraph ( 1). 1 wrevIaioos
have bee,.madeln mspoue.*
comments ri. _ Jng 091’ A.’
Involvement in CT
response at evueystta-thvotvtng
hazardous subutmm release or
potential release. Some of the co te
were In favor of OSHA’s v r.tt mued
InvoLvement with giIicy response
(La., Ameelcan C e,wlrs1 Society, 10-44)
and otbem were opposed to continued
Involvement ( La. , E LAB. 10-64).
Others supported 0 511* Involvement In
emergency zesponae activities at
un mtroUed hazardous waste sites and
certain RCRA facilities but opposed the
agency’s Involvement with non-waste
dean-up or non-RCRA facilities (La..
The Chlorine institute. 1044). Yet others
called for two separate areas in the rule ’
one for hazardous waste operations, and
one for emergency response (Li.. Allied
SignaL 10-38). Others opposed coverage
of emergency response to petroleum
spills (CONOCO. Lx. 10-321.
OSHA after reviewing all the
comments, continues to believe that it is
the clear intent of Congress that any
employee, participating in an
emergency response to the release or
potential for release of hazardous
substance be covered by thu
ndemA4th This Congressional Intent
applies to all such emergency responses
I CIUdI R those both off and on
hazardous waste sites.
The statutory language indicates that
all emergency responses where the
threat of hazardous substance spills
emit are to be covered.
Section t38(b)(i1) of SARA
specifically provides that “requkements
for emergency response’ are to be
Included and Is not limited to hazardous
waste sites.
In addition. section 126(d)(4) staten
Training of Emergency Raspmu
emouasL-&xb training etandardo shall set
forth requlawasats faiths Oaintng of wu
who me r ithia f tie
hom& aa. q , i . ” who may be
Ii c . .b.h . . ..- to . ..nybig cut
thets e.pamlbillftea ( - “ addr )
This Is vary broad language that Is not
limited to hazardous waste operations
or hazardous wastes c i substances on
C U.A or I A sites. It covers all
“ bamidsess arg—cy sItuatIons” for
all “tedo s ” which would
clearly www all types of emergency
for spills “ 'g
4 ’-’ 4 csI ‘ “-“ spill , and the Ilk.. It
should also be noted that once a tank
trunk spills a toxic chemical In an
emergency It meat.. a hazardous waste
In the very real sease .
Further, the grant provision of the
statute clearly Indicates that grants can
be made to train workers for emergency
response at any location. not just on
hazardous waste sites.
Section 129(g1(1) statser
Grunt Pmpcass .-Gr.ets for the uWing
and education of .&.. . who aie or maybe
in activities ruined te bassrdma
wuts remosul or omte1 — or emergency
l ix may be der this section.
( ainph . added)
Other statutory sections also indicate
the legislative Intent to cover all
meponses where hazardous
chemical spills are possible.
In addition to the statutory language.
the documents cited by Congress as the
minimum guides for OSRA to ase in
developing this rule refer to ali
emergency responses. The EPA manual
and the OSHA construction standards
referred to In the statute require
preparations and plaiming for
emergencies generally. not just for
hazardous waste site emergencies.
In addition the legislative history
Indicate, that Congress intended
Section 138 to cover emergency
response to all situations where spills of
hazardous diemicals were a possibility
and not just emergency response on
hazardous waste sites. For example.
Senator Hatch statedi
This am hn will address the o--” -’us
that here been raised that the Departeent of
Labor leers standards far employees gage4
In hazardous waste cp.. as well U
‘—us’ — - (*I2 5I C . Rue.
S-13031)
As dI.cus ”ed elsewhere In ibis
prst h OSHA believes there is a
deer need for tr-’ ”g and other
provisions to petaled woukers segsged In
.11 emgenoy raspesem when there to
the po. 1ftty of haz.rdom substenos
spills. This Is needed whether or not the
ency comas on a hazardous waste
site. The agily believes that the
hazards are th. same In these cases .
Finally. other parts .1 SARA. In
partlerdarittie ilL adde.. wrganq
response *e’ t ” andpk..dng by
i W...ddua end lecergevemmed
employers du1d . of the kazardom
waste deon.up spemd The
r i I r na on tonic
em.4r e e.Ieo dI ’ed In Task
Fame oar ___
Environmental and Energy Study
Conference Special Rapmt 5
is. lees This r.. uxt stresses the need
for tr hthig of emergency reepco
personnel as wells. iq
response pI..Iilg and related areas.
ThIs was part ci the legi ”’ dve ressarch
whlchledts the passage of sectia ” ia
of SARA.
OSHA’e final rule rule I .4 g divides
emdigency response Into three separate
areas. Thet. OSHA Is regulating
emergency response by employees at
trofled hazardous waste sits. In
paragraph (I) of the final rule. ibis
paragraph contains th. requirements
that were In paragraphs (Ij(1) and (11(2)
of the proposal and the Interim rule.
These regulations applied to the “on-
site” operations of the interim rule.
Second. 0911*15 regulatIng emergency
response at RCRA facilities In
paragraph (p 1 (8). This paragraph
contains the requkenlents that were in
paragraphs (11(1) and (11(3) of the
proposal and Interim rule. These
regulations applied to the “off-site”
-------
‘ - i — I Vid. 54, No. 42 1 Monday, Morcis e I Rides and M ulatàcs.
qp. aUnisa of the n Third ,
OSHA Is r”hi p ’.—rnq us-
to kaTNp(L 1 .iLñ by
as9?I ga 5 5 .ot ums.&by parageapho(13
end (pJ(e)to peregauph ( q). Porapaph
(qJ contalni the i uro sd
in pa pha(I (13, (IXS). (I)(4). and
(IKS) of the proposal aid tot im r o le.
The..
- --. - isdoabW
fly, brigade,, and bua dous L-’-
In it. peoposal OSHA onured
emer ey rupoas . to r —ei of
bazat ,ub,4—.w.. a_ g niy did
cot pwjhsfl to limit em.i y iespi . .
to uncontrolled hazardous waste site.
but d.ULd Instead to propos , to cow
aft respOas. whether it we.
done at e.trollsd hazardous waste
site. or snywbe.. ala.. 4 ” ” thg petro.
chi.vi , .I and jlmlI.. m nfacturj g
ladlitles.
OSHA’s a4 — ” priipn. covemg.
of all .mei q ? SuIItn was based
upon the high risk sr& ated with
em gaIhi, re roem by untrained and
unprot sd emplayes. end the seed for
proper and to be
provided for response to
hazardov nh , release. , to
testimony during the public headuge on
thin re I WUUe ”-
stated, The bIja dsk are
the parueni mba respisutto spills sod
•m da&.1 t.t. 5 p i. 0 f iLi
rh aod p
pa nder ehiuIrotroery hive
had the least protectieninterm. of
kp i I —- y w- safety
end health plane tr InMg aid
Lft pga, ______
goeiontostate.”ThesesI.,ift Of54
R Is that It not cudy piov*
for a mom “-- . . ‘ and
approach to pr AlJ6 wwbwa Involved
In kazardos. waste operadoni. but ii..
for — who faa e. emely high
risk to life aid health that. we’
with i hs.dcsl emergency respcnse. (ft
A” — w””— Mr . Ray Simpeon .
one of O iA’s p—° 1taiuL on firs
suppreu*ea. s lnsp* ”-, . and
tr ’thm ‘ - 1lflur& I Iths to s. putt any
— that idvacats. pic,edy
equipping. tr” .gi aid supporting
I talk
about an emorg r”qn.dsr . I ’m not
t 1 th simply about fire fighters
although that ’s h fr.IIy my eapertis..
Fm .IWng about the emergency madical
technf n , the people who ha dt . the
victims. Fat f IIth g about lbs police
omcer who, maay’ ”..- Is first on the
scene before anyolusget therm lbs
many who rosily mast some
situattane. the initial deräIstR $
whoVsgudmgtebuppea.Ihavela
over these aeny y that the imo
test dangers that face us as
L ty r -p” -ars ignorance or
nso.sw.i. .iciwbatwWrs and
thelackofplanoranyprocsdursthst
wustot heandthatwWr.trythg
to e’ ”mplith. ’ (ft pg .. -eaj .
Marga t SL t.. A—u-J-’ .
Dfrectot Dq —’ of Occupa’wal
Safety, lI-Ith and Sadol Seerutty of the
.mviw . dscatiaQ of Laboz .C ses
of Industrial Organizations (APL.QO)
also testified at O tAs public heeil
on the Issue of - eaq . i.puns - .
Semisarto diemseed the pertlalpaden .1
the AFL -CIO to bandage beiis . the
House on Raptoymant
and Housing of d i. G.vaaaent
Operations C - - 4’ e and the Safety
aid 1611h fla.hJn.ttee Of___
t4 Isier . Ms. S no stated “Those
hearouga dealt with th. leases of lb.
problems for hazar waste
In both Supidued op—IL--a dR A
opemlloua. butt they else got tots on
Issue dat bad really aol bees q,I 1red
wy fufly ’ the ps.blaa f.thg
emergency sponn e .
parilounlerlyfartheAPL .QO
firefighters . The ‘ .r . of ow
______ “ muss lbs oms who
were to w them mom
leeks and ether
T e t waits M
purse. at the tim.. They L-.-
bazar s . . site. and wets
asthaflordafest hutthay were
to withøut toL -
wldaot—-’-g--—-- todseL
- 1 tma n l euu s .
a.II d ,thatw e .fa l lyertp lcrsdic
those ’ —ns d ltwuth.r---on
that whesom Mfraadaas
bea a ‘ ? - vo epp ty In
S .emleai L, . .4 the
liL that me bad cause up with to
the 1980 law which dealt alp with
1is ‘ai eM’rpád.d it to
Include emergency twp s
op.radaa.” (1 . pg.. 343448)
Perth , O80fA still básme that
Coa ess thIs rul. to have such
cov..ga . This is -‘ tod by the
language of SARA as well as the
legisletive history.
As OSHA stated in the re ” 1 e to
the prop iaed rule. “Th. language of
section 1 2 8 (a) ansi safety and
health standards f the protection of
employees ar T Hi o hazardou, waste
operations.” The term “hazardous waste
operatlou ’ is not limited In the
1”gWetio and a respons. to spills of
hazardous — - .“se on th. highway or
from • railway tank car In order to
control and - atm the hamadous
substance (which has become a waste
once It islet omtdued) is is lb.
— mas a hazardous
waste —
“TMs is relofarad by
the fact that SARA isa free-stas
statutory , ..v*. at and set en
__________ is Q.A. 1 deer
Congr nef inI — she. Is to provide
protection to toyees whenever thea
deal m b..aaxdaa mates”
In addit , cn 128fd)(4)
tr. g for emergency
respcues persomiel utilize, the very
broad in. awdos. emorgency
sit ia . 5 tJos lafg)(1) Indicate.
that b i..L 5 I. may be even
hrdependeritiy for rm up..cy response
tre. 0 leperste frets waits
I1t, _ — cUes 128 (b) (11 ) aIn
1 ’” 1 1 s. reipwise 13 i n
iadep”—’t concept separate from
hazardous waste aonl operation. Fo
those and cuber reuma OSHA belerver
s.cILw 1 k . i .t led to cover
PHLO..OY tUI 4h to b&wdu.ii
e. ——— wh.t on an
hazardous m.ata disposal site , a RCRA
sits eraL...wlimu. H . ,.. r . the clarlftet
toda wipe sectionamakes”
clear the esly employers wu ‘e
pIcyem hove the reemnib
poesibliftyof lrIig In n p
. are d . Em.I C
response , L,,.a who mepsn _ _.
___to ‘ - “ lneolvW
baandcss . .hV..s are . . , d by
thisSusIzv Ie t ethe ,’ ’thMthayare
al(poa*d to hazardous subst li Stats
and local geveenment employees in
Maim that have inant .
treder s ’ 13 of the 0801 Ad must bi
regulated by state regutatlem at least as
cffe tlv u these to protect public
employees. Those state reguilatleos siust
be Issued within six .ootbs of the date
of promulgation of this final rule.
Hnu,e . some . ,mm”urs have
that O9iA has exceeded
the Intent of Congress with the scope of
the proposed rule. Many of these
comasoters stated that 0801A ’s
coverage of emergency reepoas , at sites
other than spesiflo rla.iup c i TSD
facilities was too broad and
unwarranted. AMOCO. ‘ent (10—
28) is representative of some of the
comments made on thi, issue. In their
comment AMOCO stated that. ‘Section
12 3(a) of SARA Is the directive to OSHA
to promulgate standards for the health
and safety protection of employees
engaged in hazardous waste operetta”
There Is no reference whaIiua ii In
directive to promulgate sMn d fr. -
with respect to ems cy r.sp
activities outside of bazardouse
operations.” However, other com
received from th . petrochemical
-------
F.dem& R .ter I VoL 54. No. 42 1 Mm A y , Mirth 4 188/ Roles and Regulations
industry support, on a l(m4e.d basis,
OSHA. decision to cover emmgency
respons. with the mope of the standard.
CONOCO’s —it (10-32) I i
r.pg eent*dve of this point of view.
CONOCO states. “Conoco e primary
co ’n with the proposed rule centers
on the wutz ly broad scope of
employee coverage imder this stanIaM
and compared to Congress intent to
cover ‘hazardous waste operation. and
emergency response.’ We believe that
Congress intended section 129 of SARA
to cover employees engaged In
hazardous wants operations and
emergency response to the.. operations
on a full-ten. basis. ” While this
would seem to support
OSHA’s coverage of employees engaged
in emergency response. that suppert Is
limited to those employee, esgaged in
response on a full-time basis at
Based upon public L.thony and
written cosnts ed Into the
re rd of this O8HA has
concluded, that because of the high risk
associated with emergency respons. to
the rlases of hazardous substances
and the number of these incidents
ocnurtug that coverage of workers
auth emergency response
activities Is both ap late and
that the a ipef this
final rule ‘p4 — out the Intent of
cui 1 . idle “ 1ssa with good
oomp.ti sl safety and health policy.
( i,t5.uj$1ww ‘1I ind.stets or local
thoen ift’ys.s Ithely to have the
highest p.sore.te bawdos,
oem s 1 portod—woudd
by vittually all the
presletem of this flnsf rids. Employees
exposed to bawdu. . wastes In routine
R A hemodous waste operations, who
are regularly exposed to hazardous
wastes but in a more controlled
envfrcnm,nt, would be Cvvuivd by the
more lintited requirements of paragraphs
(p) and (q). Emergency
worker, , axposed usually for short
periods to often nclcnawn but possibly
high levels of hazardous substances.
would be regulated by paragraph (q).
2. Application. 082f A proposed to
define the application of this final rul, In
paragraph ( K3) of OSHA’s Notice of
Proposed P d n*Idng (NPRM) published
on August10. 1987(32 FR 29820).
“Application ’ establi.k.. which
regulations within this rule apply to the
specific worker populations to be
protected by this rule.
Lu paragraph (a)(3)(l) O8HA proposed
that the employee would have to comply
with the standards in 32 CFR Parts 1910
and 1928 ae ws llu with the
requirements specifically caveicd In the
proposed ruts. If there were a ciwfllct or
overlap between standards. It was
proposed that th. more protective
provisions would apply. SInce this rule
does not cover all of th. hazards present
at hazardous waste operations, other
OSHA standards in Parts 1910 and 1929
should apply to ensure employee safety
and health. Other OSHA standards
regulate many other hazards, and OSHA
wants to mak. clear that the other
standards continue to apply. Also,
OSHA proposed that hazardous waste
operators who are not within the scope
of this s$adard should continue to be
regulated by the Parts 1910 and 1
standards. OSHA Is ke.piag thoss
provisions In the final rule for the
reasons stated with editorial
changes for clarification.
In paragraph (a)(3)(1l), OSHA
proposed that all paragraphs of section
191*1.29 except paragraph (o) would
apply to hazardous west.e operationa at
CLA sites, at ember
action at R A sites, and at sites
designated for clean-up by state and
IocaEgovernnnsnts. Paragraph (o) of the
proposal addressed certain operations
conducted emaI . the Re.o
cation and Recovery Ant of 1 S
“OSHA t the “ - “
pr.entod to empjoyees e” ng.d In
— — Cs,—.
“ trdlled hawdem wsstss use
— than-this. m io
employee. esgsguãin the matins, da
today oporaIl .f a. DA 11 sss.d
OSHA he. -‘ 1 ”two al
paragraph (*3)W) without changing the
Intent of thapesegraph, First. rather
than rJ-’si, g te of the types of
silas Individually, OSHA is 14i g
reference to th. scope paragraphs
(aXIXI) through (aXIXIII) to Idsn* the
sites that this eppifoutie. paragraph
addresses, The sites to be addressed
remain the sam. as proposed. Second.
because th, co don of paragraphs
has eh ng,d In this final ruledue to
nges mad, to the proposaL
paragraph (p) of *1910.120 rather than
paragraph (o) will apply specifically to
hazardous waste operations at ECRA
sites which are involved In treatment.
storage, disposal and handling of
hazardous waste. The new requirements
of paragraph (p) are discussed Later in
the preamble.
In paragraph (aJ(3J(1lI). OSHA
proposed that the re . l .onte set forth
In paragraph (o) of sectIon 1910.129
would apply specifically to the
hazardous waste operations at RCRA
sites which ax, Involved In treatment.
storage. disposal and handling of
hazardous waste. The proposal
contained a limited exclusion from these
regulations for certain small quantity
generators and less than 90.day
accumulators, such as dry cleaners and
gas stations. which come within the
purview of ECRA. but are not hazardous
waSte operations In the normal meaning
of the term. The exclusion was available
to these operations dep ndfng upon the
employer’s decision toproild c i not
provide emergency response by
empluyeu to releases oL or substantial
threats of releases aL hazardous
sub.l1iM -’ .
OSHA proposed to ampt small
qu.iidty generator, and Less than 90 day
aulators from alt parts of the rule if
they did not provide emergency
rssp”nw. by their employee, to releases
oL or sub.’-”4-I threat. of releases o
hawdom suhmam OSR& thar
propo..d to i i small quantity
generator. id less than 90 day
accumulator, from all parts of the rule
cept paragraph ( I ) If they did provide
emergency raspousa by their employees
to releases of. or substantial threats of
relisse . of, h.v. dca. sebsIw!e.
OSItA ro grdo ”d that many email
quantity generators are e.’
with halted employee
populations. S imm must of these.
establishments rely cm the i .ig wy
raepon.. esselem of local lre.and
p”s’ ”' daparimt . GSIiA is providing
a a neg,h,t.r 11 uiptIw& from them
proprie.d standards when the employer
can show that employees are set
required or enoomeged to geg. In
emergemy response. but are4lireuad In
the case of emirgency spilis of
hazardous substances to maintain a sale
distance and to call local fire or other
emergency response organizations. In
cases where such estab 1 ”hm’u’ts do
provide emergency response by
employees. and thereby expose
employees to hazardous eubstanv .s,
OSHA proposed that such employers
meet the emergency response
requirements of paragraph (I) of this
proposed rule. OSHA concludes Its
proposal is . 4q OrtId by the record.
Without these exemptions. these
regulations could be Interpreted to cover
gas stations. dry cleaners, and other
small businesses which temporarily
store small quantities of a hazardous
waste. These businesses are not
engaged In hazardous waste operations
as that term Is conceived of normally. In
addition. It 1. not believed that Congress
Intended er ich businesses to be covered.
They do not present the relatively high
-------
S— ’ Regiatse I Vol. 5& No. 4 ) Ar- 7 ,M..J. t I llS I Rules end Regulations
TI--
r’sto s—— - . *1
h hh b
husrd ...._. .d typically do.
Is paraapb ( aI*IvJ OSHA
p2 _ —l -t 1
In ir. .-yi of .rii 1 . J
spsdScaly a ly to thi _____
by 1 gu,r rSap os pazi ,....of when
tbsp 1 A hiwdses s s
4 - Eaesp y
r-.puoa. pau L
p iui i.4 • ps i as
Th isgitollo. 01 v as wovtdiag
emergeney wa . ho. been do!anasd
, postica of this
prm.iuihl, -— -i . Pwt
of OSHA. ‘ 4 ’ ” i ’ to the
faspoosa posiles of this r’—’ 4 Ii
cou tsM.dM the thr-’ - ’ of pusp.ph
GINA abs rsqosstad
what when ipIk _ . should be and its
intended by Cesgecas to be . , . and
*lwibs should be
exciudai scicas dbw Pot
.—‘ p Iu , doIbuesaotusry
! itwtRtI that h I L . dendc wt
wou1dama *bsr. .ra4W thIs
rub. mSarIy, waste pipes or sorap
“ ‘it*l would net senally be
re$ulatad hem. . . of the type if wastes
they . both types .1
operation. would be regulated If they
hive deem-up, the us basesdes.
wastes meatW thi :_ — = peovtslon . of
lb. staodoid.
Atoo.epwo at L..nL waste
____ 4wlIast ha ‘m os .d
10 , otdo Jwth p t. atWtobs
. ,poasd to, era
n.t _ d by this r . Tbo ovWgne
01th.os._,_I_IL__wo Ito
boy
bay, _.. ..,deneeLdtatha.
iwadad L wbo dosoL
- --to
ha 11 mdo.i
fars Uonufot
clean . oft RC*A
site thvolutog ofe day
over ha. ...A - ass urasidwad to
be — ur at 1S. . ... & by the
standards to 12 R t 1121.
Aa.-.enkofth.— ‘tsrs .44 . .d
durtug*.zhle - :- phas , of this
0124* b nd some
asthedupse of regulation for
7 - -— llIUi. IL - ..., ..t .
the . . of . ‘ ““ itd me’I -, . to
cover scab end po. h
(aXZfllv) ld. tiS the new ps,.p,phs
within the rain that ruflsd the changes
and I _ tifla s ’ds that apply
I. ‘“- ---‘7 ISpi.M
3. Dufài to psze apk ( ‘1141
GINA uup- U.. . i4Iy
and “ - the ,adsus ms seed to Ito.
ralewabtog that may uses,
Hu . .i.v . the fmOow new d.
hive bees . iIil.d sea result of
tern do.re isd
“ pubIIi . iq,..mos leveL” and
“unconbofled homidous weete site”.
Inept for the ‘ w 01 estab1icb
tour which has bean
amended to “ , “published supuiwv
level.” es de dos . hsee been
removed born the proposaL
The term “esta isbed permissible
e gcoa Ilmir was incorporated..
part of detominatlos of wbsthu
medical ,mveIlls was Mu,.l..d .
This weese h f iai
tide dsSuitioo.
t te - ij---- It . Few fli...,..w
bndusMal SereL as (104L believed that
the definition ebmild be Foot
Sear’ns stated Th route . .1 —‘- -‘
expose a ,. th . l. i%I INon shis
absorption, and Ln —’ All 01
have to hi coesiderad he.
with Jla jvw w itolL . Tom
defiuitbs . witU does
h, 5 s11... Other u s wos
concerned that 0214* I L.d th.
MOSH Ra dsd peom, Lhi&to
inth ed sfl . .L” .—vIP I Ia.Th.LL
do Nsee , Cs. (10-SI)
cc— -—‘ sey 01 those
received agihlV the MDI I I to..ls .
D.Po.tstete4’lflO I IIRelWbave
undergon. public review and ‘ --‘ -
and zeguI.toy . -. .‘—- --Js.
Therefore. y - be
In ULJIS_.d 1 _ a -gj.g _
wsiw’
yat 4.Thomr N10IIl... e
not Juil tepees woIswmp. a
——- as are OS}1As 1l12 . We
__ we
toenfrmePIIa
Wveste 1111. Z. ”
Dr4.flheIn, OI,U.. . 01
Itheith ? * 12ste
of New Th pstoent sIi4 .elth
me of
011W. ,.et wti - - to
OCbU -&--l .dl sested to his
beta... , ITP. pg. 115) that. I l k It.
Impaot.ot that the 0124* be
auppi.1a d by kJ . .rmst from
MOSH and ACCIHI both 01 whIch -
a 1 01’ 4 ’ c r toxic
subateacs and beth 01 whIch hidods .
or at least consider ners up to date
Infoemailos en thatoxteity of thee.
sub,tanme .
In aditiulen. durtilif the public saringi.
CIliA. tbro It. panel of staff
member. . p,dflri.tIy asked Captain
Richard A. 1 -
01 Slendaids Devslopmsut and
Ts4,i nLi 1 y 1 an with! . MDIIL
about the pea ’ reviser prut .s 01NIOIN
R12 I 1 n Saya.
dlg . . . t.J the Ibiluwlug qua .uon to
Ca .taIu t vse (Th pg. i .
IMr. L camn1 We have ,eou,.d sea.
Ieedb.sk In ow imed about she order cli
hierarchy t we have seed I. peousob’
. ii.iies liolta. Thom have base stalsmec
made that the a are act ps mtawed.
d,ui 1 I w If you alØit deemib.
ushomthe l Saisbssd e ve lopedbyi
heCccapeecaMSofet
.adI I•k
Captain I see’• response (Ti. pgs
195—197) to t.fr. Seputourwat
Okay. to N the peer...—.
q-otec . lw -y t probably the REt
were mae pees thin ust
rs .— The list prole. . of
dos.I . en 112* 1 fI.ai I kistitets far
S..icty sMihaith tat. prop
— ____
DIg .onrd12 I • pedhic. peper
that I. then . .w1....4 by er M0124
$ 1 5 5 O thiS _ rr”1 is V S
ca th. - hism.
d. . . .La.J layers of . ..I.. . within
NIOSH.flta a . out for .sturael
uwI .w . w, ..Jy I set
N ito laid that
d&
Wets r - b a s k
hi. . . ..,.. ..Ji those - — whose
W. - .
___ _____- wI a
____ aery diLLwiibo
th.____
A baidwI*thiOtoi*i. of
N10211 at .the_ii_L____
and the. ..I... — tha tajitets
(,.vIew) 55 efth. noIse - ‘
Internal wil sM a
Is m.dabpthe9 i at1 I or
not to rh a - a at.
‘
acdmabftthatattedsL ssths
Otvecl s of GINA.
So It $0.. Ihro a very “ vs peer
iovlaw , . .a to
article L.JUJ topeluut st
whith 15 wJHic . b Pe..I.. stid
gseualiyst N thracte lie toM.Ii .de
torsvlew..._..his -Napow.. I -..
S. ito seemul — wIser ps...eaa
I think Is wathestthaatha era pow.
— athide.
Inllgbtofthees 1 — --taOIIlAhas
concluded that the P410 8 141 1 2 .’. have
undergone the aecemary peer review to
be Included hi th. standaids hierarchy
of limits.
The term est a bllsbed oxpoesre
levels” was defined in lb. p .po.eL ii
indicate the Levels which would 15$r
medical survelllsoc. of the aposi
einployea. The term included not
0514* established P12.a. bitt also
-------
Federal RegIster / VoL 54. Plo. 42 I Monday. March 6. 1989/ Rides- and Regulations
9301
exposure liniits suggested by NIOSH
and ACGDI. After review of the.. and
other comm ” ta , OSI4A conclude, that
it Ii Spj dJp IIlS to go beyond the 0801*
e.tabi1 ad PSIe In jgg.itis medical
awvuiuance mm ce
is appro giate for wcshaza.,xpoasd to
toxic chemicals other then the..
covered by the P80.’s. Second. because
of the broadly-worded language In
section 126(b)(3), which require.
medical surveillance for workers
engaged In hazardous waste upers$tona
whJch would expose them to tonic
substances. Some of the.. “toxic
substanc,s are not Included In the
OSHA P When 0811* complete. its
rulemaldug oo the sir con smhIaIlca
proposal (PEL. prolect), thze will be
fewer tome ,uba’-n”.. not d by
pa’s. But In light of________
language and the larg. number of
hazardous 4i. . . .la,.I. pu..antln an
nt uIlad haurdoos wail , ut..
OSHA ,w Iw½ , that a a4.fi itjoa
appropriate to protect employee safety
and health.
The term arudedble oeure
limits” wu defined In the 1 w,ose1 as
the h ktiou or detmal p ” ’ 1
exposure lIuilt.spedfled to a R Pert
1910. Subpart 2. A. a result of the
iwi. anI 5 8Ai the reizad . 0804*
has amended Ito lI eitieu that ignored
the health epr fi”4 In Subpart C.
for Ihaits.”
OSHA ha. a ed the d nldon lo*
“permissible oxposme limit.” to Include
a referenca so Subpart C ofPartlll O . It
now Includes both Subpart Z 1 elth
hazarda and those requirements In
Subpart C of Part 191*.
Firet. 0804* be. ai ged the term
‘ establWr.d p ’ewe levels” to lb.
term ‘ p. .144.h.d n t. w level’ to
reduce Second. lb. m
“publisbea azpo. level” Is “' “d as
the exposure limits puhi1 h 4 In
NIOSI4 P* i- -.-utA.lIon. for
Occup.O ”i ”l Health Standard.” dated
1900. lnc .rp tedby zefesenc., Cr If
none Is specified, the exposure limit .
published In the standards specified by
the American Conferenc, of
Governmental lodiretrial Hyglanists to
their publication “Threshold Umit
Values end m ,ingI i Exposure
for 2967—18” dated 1W. Incorporated by
reference. Third, the provisions of(fKZ)
on medical surveillance have been
changed to cov v .&i . ,uames to both
pa’. and. If none, then ovsg.exposure
to published ° pomns limits. OSHA
concludes that with thee. changes the
definitions are dear. o .m .pi _ h IIive and
carry out both statutory directives sad
ap Eu &t “ ' edfcu1 aitmia to
— whether L
su,,eil1aw is required. Some
commentere stated a broader guide Is
necessary for respirator use and that Is
disieteised under paragraph (g).
0811* requested comment an the
appropriata’ ..u of Its defluitiona at
hazardous waste. health hazard and
hazard... euhatanc. and whether they
were consistent with A and DOT
practice. Several o”” '””ts were
received on these tunes. One set of
coTvnn its m l ffdssd OSHA’s
IflCuip ..dOU of petroleum and
petroleum products to It. aleenltion of
A typical “ ' “t was mad. by
WON (10-33). Ia their c-” ' ” ”ta
OCON presented the following
Perhaps the mast --
to this role Is the
l .iu of p.Uu and p.uulsum
pro to the ftI’ of
— to -— tA .4v.
below at lIt. 14 ( LL __ .i WIO61
: J.
Pt--ti ” Aguocy ( AJ . and
lb. Oepsrta . tTh LUon 1
have undumly the
of______
petruhemes a hazardous - -‘--“--. There is
no lathc.tloe to SARA I ”lion 133 that
Congress &i . —
or to mb$eitpeueI = to
es.pou . mguInu
E O ON fur st.tedi
iris WON’s ‘- ““ “Ithat e
Is eel an
subjact to the of ps;; -; (1)
ale, them Is a oft ha...Jsos
subst ”1L.J , . , tris that lb.
definition of ”ha.....Jms mbat.i..d ’ be
“ — -I - d k•
— 1 -teeiw ’ u” 0 . .,..rue.. .1 of
Ties .pouta ’sd.m.et of ’ idma
ma ” aR17L&1,5.ddeth
— U - 4 - a bees bees
- - and.
related spiDs maybe - ..bJa to the
bdinum. . ..,,J .
to lbs vary “ “
dtsdts lb. gui 1 . definition erbmardoss
sabstanos,” has iuunguia..t that palrsi. .
and petiolsum are — d fress
the federal deSeltionof “bazaidem
substance.” A regulations der QA
hive Ia&wpersled this
4k ti.w . S i. 40 RPett ion sad d J ”s
at IOFR 13101131N (April 4. lie.). DOT bee
speafically . —.Leid Pedmel
petiuIeem rl audl ,wa$sdth.
In In cl”buvdoae
substance.” S.. ai FR 144t4 Ijulyl . 1W). As
such, the prov ’. ’,d oe.i* s&”n Is
InconsIstent wtth the -4 * end DOT
diflaftiesu at “baumdsos subetsnoe. ”
The ad da IiIa of ‘tamedma
waste” hp d ”w the DA R A dsfintaaa of
hazardom ws. and lb. DOT ‘ 4 — ’ at
e. R 171.6. The sited DOT regulation
defines both “ — 1 -a . — - - and
harardom wastes. A eat.d above, the DOT
definition of bazardoim substance at is
me should pz.p. .ity be in the
proposed 0914* definItion of hetaedous
substance. It Is not a wUts d.flnPI rn
Therefore, the 1 ,posed definition of
hazardous waste should be limited to waste
materials; and, the DOT definition of
hazardous substance should be dearly
excluded,
0811* does not agree with these
arguments. Section 233 of SARA Li
directed to protecting workers front the
hazards of .11 hazardous waste epills.
Petroleum products meats sipificant
health and safety hazards. Many
c,,win”°ts supported OSHA s
lasp . don of petroleum and
— —
During the questk .niIIg of Dr. Kenneth
IL ( aae , M.D Pr , ” 4 ’ 4 - ” of the
W ” ” gton Ocospatlouual I4 1th
Assorlates, Inc., Mr. appell Fierce of
the 0801* panel asked Dr. iase the
folL,. ing q”.”’ t — . (Ti. . U1)”Do you
feel that medical monitoring for these
Dr. t ss, re. ’ 4.d, ”Petreleum
pzodiuctslsfusttoobruads tasmforere
to aumeer that In a general way. CertaIn
— derivatives are more toxic
than others. Sum . have score
others wher”’- t” clty and others. the
r ”'’c ” ’ Is mere sheet chronic toxicity
that Is most ’ 4’ffi’ ’ to detect.”
DinIng the kaarIng. 0811* asked
many of the Individuals who testified If
petroleum and petroleum products
should be l I ’4d In lb. d ” -’flon of
Representative of the re umma made
to this question wee the tasthauny of the
Prince Georges C., . . ..ty Fire Dspsr snt
the International Apeotilatica of Fir.
Fighter.. AFL.C10 NIOSIth and the
Seattle. Washington FIre Department.
Mr. G.g..ij Nail, the Hazardous
Material. CoordInator for the Prince
George’s County Maryland Fire
Department, testified on the Issue (Ti.
pg.448). Mr. Thomas Seymour of the
0511* pane1 addressed Mr. Nell by
sta “I notice In your testimeny. on
pageS. that you lndi te that at least 50
percent of your responses are Involved
with fl —”-bIa liquids or gas
emergencies. The definition that 0511*
Is using in this nd akhig for hazardous
substane 4 - ”’4’i with and covering
fl.ini bla liquid. and gases you find.
then. a p prIater
Mr. Noil responded. I think
realistically, from the perspective of fire
service, we’ve been successfully
ham4H g fls’ - ” ble liquid and gas
emergencies for a number of years.
Today, with HAV LATa being the buzz
word, certainly those categories of
-------
commodities have been thrown into the
hazardous materials field.
“We now regard them in the
hazardous materials field from a
practical perspective.”
Mr. Thomas Seymour of the OSHA
panel asked Mr. Richard Duffy of the
International Association of Fire
Fighters (‘Fr. pg. 110). “Mr. Duffy, we
have had some previous commenters
who have advocated that petroleum and
petroleum products be excluded from
the scope of the standard.
The example that you just gave about
the propane tank inside the building
exploding and killing fire fighters, what
is your opinion about whether we
should exclude petroleum products from
this standard?’
Mr. Duffy responded: “I don’t know
how we would classify them. I would
object to that. I mean. I don’t know how
to better qualify—I could talk to you for
days about incidents involving
petroleum products. I don’t see any
reason to exclude them any more than
excluding the oxidizers or any group. I
mean, you could pick lots of products
and ask to exclude them. And rms a
lot of the lobbying entities can establish
reasons for It. But I can’t see any in
terms for fire fighters.”
Mr. Charles Cordon of the Department
of Labor’s Office of the Solicitor and a
member of the OSHA panel asked
Captain Richard A. Lemen,, Director of
the Division of Standards Development
and Technology Transfer of, NIOSH the
following question (‘Fr. pg. 200-201): “In
the case of spills of petroleum or
petroleum products In either an
emergency response situation or as a
hazardous waste dump were there are
petroleum products as one of the major
contamjnan s, Is It appropriate for all
the provisions of the OSHA standard or
the recommendations to apply in those
circumstances?”
Captain Lemea responded, “We
believe It is appropriate and they should
apply in those circumstances, as well.”
Mr. Seymour also asked Deputy Chief
Roger Ramsey of the Seattle Fire
Department (‘Fr, pg. 142): 1 gather from
what you have also said that the
definition we have, including the DOT
hazardous material definition for
hazardous substance and materials 1s
appropriate, and that we should not
exclude petroleum products from the
coverage of this standard?”
Deputy Chief Ramsey responded,
“Absolutely not.”
Many spills and emergency response
to these spills involve petroleum
products, These spills present both
health and safety risks. Training Is
necessary to protect employees who
respond to petroleum spills as with
other spills. In fact. these are usually the
same employees.
OSHA concludes that it is crucial to
cover responses to petroleum spills as
well as all other spills because
petroleum products constitute a
substantial threat to employees
responding to accidental releases of
these substances. Many petroleum
products present health hazards as well
as fire and explosion hazards. In
addition they often contain fractions
which present high health hazards, For
example, many contain benezene. a
carcinogen to which employees may be
exposed.
Therefore, OSHA is not amending its
definition for “hazardous substance” to
include the petroleum exclusion
referenced by some of the commenters,
The other definitions are discussed in
the preamble to the proposal for this
rulemaking. There were no major
comments. OSHA concludes that those
definitions are appropriate for the
reasons stated in the proposal preamble.
Paragraph (b)—Safety and Health
Program
Paragraph (b) of the proposal has
been reorganized for clarity as a result.
of the public comment. Basic
requirements remain the same, Specific
changes are discussed below. This
paragraph basically requires that a
written safety and health program cover
safety and health organization and
specific work practices to assure
employee safety and health. OSHA has
concluded that It is crucial for employee
safety and health to have a written
safety and health program that would
force the systematic identification of site
hazards and Identify employee response
to those hazards. The written plan is
necessary to communicate hazards to
employees for their awareness and
protection. (See preamble discussion at
52 FR 29624.)
OSHA received many comments
supporting the requirement fore written
safety and health program (i.e. State of
Wyoming. 10-0 James T. Dufour, 10-78;
International Association of Fire
Fighters Local 291.10-12); other
commenters have made suggestions for
changes to the proposed language.
OSHA concludes that for the reasons
stated a written program is necessary.
The following discussion covers specific
changes.
OSHA has included a non-mandatory
note at the beginning of new paragraph
(b) that explains the acceptability of
safety and health programs developed
and implemented to meet other Federal.
state, or local regulations in meeting the
requirements of this paragraph. Some
commenters believed that OSHA’s
requirements for a safety and health
program were somewhat duplicative of
the contingency plans and emergency
response plans required by the E.P.A. for
its permit requirements (i.e., Tennes
Valley Authority, 10-43; National F
and Coating Association, 10-72 Jo
Wax, 10-84). OSHA will permit existu .,,
programs that have been designed to
meet other government or corporate
requirements. For example, contingency
plans developed under 40 CFR 265.50
are acceptable In meeting this
requirement if they are supplemented
with the provisions established by the
OSHA standard. OSHA does not intend
to require the duplication of efforts
made to meet other governmental
regulations. Therefore, any plan
containing all of the elements required
for the OSHA plan will be acceptable in
meeting this requirement without the
need for developing a separate OSIfA
plan.
In paragraph (b)(iJ of the final rule
OSHA has taken the language proposed
in paragraphs (b)(1)(i), (b)(2), and (b)(3)
of the proposal and subdivided it into
paragraphs (b)(1)(l), (b)(1)(ilJ, (b)(ij(iii),
and (bJ(1)(iv). Paragraph (b)(1)(iJ
contains the first two sentences of the
proposal along with two new sentences
that clarify what the safety end health
program shall Include. OSHA has
included the new sentences and the new
note to this paragraph to provide further
guidance to employers who may need
assistance In developing their safety ar”
health program.
In paragraph (b)(1)(ii) of the final it
OSHA is using the last sentence and tht
list of chapters proposed in paragraph
(b)(1)(l) and subparagraphs (A) through
(C). There are no changes made to the
language as proposed other than a
recodification of the paragraphs,
In paragraph (b)(1)(iii) of the final rule
OSHA Is using the exact language
proposed in paragraph (bJ(2). The
proposed language has been moved to
this paragraph because It contains a
requirement that Is of a general nature.
In paragraph (b)(1)(ivJ of the final rule
OSHA is using the language proposed In
paragraph (b)(3)(I) with one exception.
Anew phrase would require the
employer to inform contractors and sub-
contractors of the site emergency
response procedures In addition to the
proposed information. One commenter,
CDM Federal Programs Corporation (10-
83), suggested revised language to the
proposal that would assure that the
contractors and subcontractors received
the site specific safety and health plan
as well as the safety and health
programs. OSHA agrees with the
suggestion of the commenter and that
-------
- - - iedII*l S iI J VGL-54S NQi .j-3 ay.Maau rS ,-2gWJ R .. mad Weg leUo .
9303
the new ha;— i.
th$ 3 S u 1 witd by
cDM•Ped .l vors .
Pb)(lXv)ofthsbslrule
O f lHA lsubgthesuctlugraageof
proposed parspaph (bN3XU).
In paragraph. (b)(2). (bJ(3) , and (bN4)
of th. final rule OSHA Is smog the wit
Iangua s of paragraphs (bJ(1XU).
(b)f1)( lü), and (b)(lfllv) of the proposal.
One co n u ter, James T. Dufour (10..
78). while supporting the sea of safety
and health plans as en
‘iml iftO tool for Identifying site
bawd., s estod that OSHAah nId
require a more comprebeiiaf vs review
of the
professional quality. OSHA believes
that the languag. of paragraph (bX4J(lv)
would provide for this type of oversight
and con oL Therefore, the only g .
to paragraphs (bJ(1J(ii) through (bJ(fl(Iv)
I. a rei ndIflcaticn of the paragraph..
Rrro graph (cl—She Chmvc on
and Analysi..
The employer “ ds to honor the
develop and 1 ”p t —”e.zt auut ut
measures. Site tha,acte fiatf 0 provides
lb. Information needed to Identify sire
hazards and to select employee
protection method.. The more acosrate,
detallid. and coulprehm*slve the
Information available abouta site, the
more u maaemes can be
tailored to the . lual hazards that the
employee. mar ter. Onigre. ,
dee yfrIMuut.dthat such • _____
be Inthdsd. Semion lIO(b)(1) of SARA
pruvUaa that the propo.al h 4v l
“requirements fore formal hazard
an.lysisoftheefte••
It Is important to rs ngffln that site
characterization I a c ndln.oe. pm ese .
At each phase ølsfte characterization,
information is obtained and evaluated to
define the potuntial bawd, c i the site.
This s’sr’—a Is to beaned to develop
a safety and health plan for the next
phase of work. In addition to the formal
infermatics galhaaing that takes place
daring the phases of sits
characterization deumibed above, all
site personnel should be constantly alert
for new Information about site
In paragraph (C) of the final rule
OSHA has used most of the langu*ge In
paragraph (c) of the proposaL New
head otes have been added to the arab,
parspapha to make reading the
requnement. easier.
In paragraphs (cUl) through (c)(4) of
th, final rule, OSHA has used the
lai guage of paragraphs (cfll) through
(c)(3) of th. proposal. The reason for the
on. addftIo aj paragreph In the final
rub, Is thai OSHA baa nembeted the
fnlHal. ...... Iuiheradp s, .paphfnth ,
proposal. and Noumbered the vest This
is an editorial th nge and does not
cha n ge any of the proposed
In paragraph (cXfl) of the final rule,
OSHA Is using the language of
paragraph (c)(4) of the proposal with
one change. Paragraph (cJ(4)(U) of the
proposal has bee. revised as paragraph
(cJ(5)(Ifl. The new requirement still
require, the use of a five minute sacaps
self.conthfned b ath1ng apparatus,
bow,ver . Iti need Is now based upon
two conditions. In th, proposal all
employees bad to have some. to an
C8A dwlng initial sit. entry. Two
ç . .mm flt 5 , the Stats of WyomIng (10-
9) and M Federal Programs
Corp M .tion (1043), suSiested that
OSHA revise this reqarremsut to
recogutus that the sie of Aa should
be determined by the nature of the
health hazards and the nature of lb.
work to be p.rL. . .,ad . OSIIA agrees
that all employees who t be
exposed in site condition, whore
health haz.rds may
should not be to can , e.
Therefore OSHA has . m ui.tl Its
proposal as follows. Two condition. will
now limit the employee population that
must be provIded acongs to A.
They are ( 1) f po.ltl, . _ .. . , , esl
read as part cf ey. p ’
pro . ti, eurlIi en 4 ,5Jif
reapl..t.. 7 IRo’4—”N.. is ---‘-4b
the____ ____
the prslimin p le.tläe.WiL
In popslaflse.wfr. , se two
ma net mste,d not be
Pspapim ( (cX5iøfl and
(c)(5)(Iv) --.I.I 4e wet lariguege as
prcpossd.In p.’ . 1 bs (c)(4X 1),
(cX4XW)i a nd1cX4pv
In paea,..,k4c)(9) .f the final
OSHA Is using the language from
paragraph (cX5J of th. proposal with
score
In paragraph (c)(e)ØI) of the final rule,
OSHA has N al d that direct reading
Instruments be need whore available. In
the proposal OSIM had required only
that api ydate equipment be used. The
qon y believes that direct r , dhrg
instruments, where they eve available
for spesific aJ i.-I hazards, will
provide a more expeditious assessment
of the hazards when theme Is not enough
time during a specific work cycle to
send samples out to a laboratory for
analysis. In some aituaticn , employee.
may be present at a particular fob site
for only a brfef e. Certain savpIlng
techniques, other than direct resding
ins meenta, may reqi ilr a longer ’ time
for analysis than the employee’s actual
exposure time on the job. Thwefore.
OSHA I. amending Its proposal by
recognizing direct reading instrument.
as an alternativ, to standard testing
procedure.. OSHA baa added the phraae
“app r1ate direct reading test
equipment” in place of appropriat.
equipment.”
OSHA has also added eparsgraph
(c)(0J(IvJ that would require that an
ongoing air monitoring program be
bnplma.’stsd In accordance with
paragraph (h) of the final rule alter site
characterIzatIon has determined that the
sits Is safe far start-up of operations.
This is not a new requirement since It
uses the same language U that proposed
in paragraph (cKa) of the proposal.
OSHA has moved the paragraph from
its position in th. proposal to paragraph
(cKel(Iv) of the final rule became It Is
related to the sublect matter of
paragraph (cXe). OSHA considers this to
been editorial l 4 *Itig . because there Is
no l 4 Ijfl in lbs proposed language.
Paragraphs (c)(S)(1) and (c)(eflhll)
in uss the language of
propo. ,,4 paragraphs (cX5)(I) and
(cX5JOII).
In paragraph (c)(7) of th. final rule
OSiiA i eu s l n gt b .Iaqpi g.ofpr o po.sd
paragraph ( )(0) with one change. in the
note which dwlbes risk. lobe
Mhas a iI d
pasagruph (e __‘ 1be aaguu
to z aat the “Wlr- limit 5 ‘lovula
obemadIntheflnsbnrls J3irsnt-
1Ja.oe in I IPJ fl1i pesem Limit.
Ø’Si.s), Thr- ” ” Limit VaInm( 1LV.)
or Pa P------’ ’ tExpesma”-4
(RSii) he. been deleted and a ‘ .ta
is mad. to permissible expu limit.
and published sxpoww levels en
g4 fiuied In the final rule. No substantive
4 iaIIgeisnlade since those teme
Incorporate Pfts, flVs, and RSia by
definition.
Paragraph (d)—Sit. Control
In paragraph (d) of the final rule
OSHA Is using the language of
paragraph (d) of the proposaL Minor
editorial changes have been made for
clarity without i4 nghg the proposed
requirements. The need for requirements
for site central Is d1s wsd at 52 FR
625 In the preemble to our proposaL
There were few substantive comments.
OSHA conclude. that these provisions
are necessary as discussed in the
proposaL
Paa4gmph (e)—Trainrag
The proposed nil. included specific
provisione for InlUul and routine tr 1nm5
of employees before they would be
permitted to engage In hazszdous waste
operations that could expose them to
-------
I s J Vd. L . 4Z1 &&L,. l 1 z1ea & P ’. -’
aafy.alt ke
I2IMZb of SARA ‘ • - -- ‘
I .i.iinN& “ -‘-“ h. In-’--1 A t.Ibs
flna1ah. ’ the”hth
w- 1 - ’ is toij oeId. “ ywwttb
the kiow!iJj di s w— y to
— . —
opsrslicn. with , nInM,.1 4ik to thoir
safety sod health .
The prepea.d osqitrinint.
thu 5 pam tpk(.J sddreusd
neadi ofinpisyssewbe wil b. wwLiLg
at Mte intot. R A ittos.
and oils d.-’ -.’. or Ua 4 f
dsan by . or I a ---’t
1 1 ioiqr .d 1 ij Ls1 ’ — Mt1 skiI
In.&i hiJ i .
of dais days of Bs4&expsitma.
un 4e ..J of a tolsd
and _ ., _ 11 __ 11J4 . t _ at da
of Job • j —’ Cc ios
speitReally -.J these bo and day
. . . 4 .k _ ......t. maIorseitL*1* of
SARA f pc 1 . L.. L,t
The IMiihi—’ Il i-. iI-d a
os sfo by _ L 7 a for esob
employs. itindaid.
eat sand to be
ra lnsdftw4Obowaatucb i lts at
whfob thsj k- wki bad
da. _ iad q _ L 0 at sit.
___
Iválf* _ t a-’ • iy.i
a-’-- _rs sit ,
rasiu e
and
lki,. t —‘- - ,.# dos
b. &
audo —ndpm:—-’- -1,
s .-I, ___ WI& id - •
and y pes*
pra iGtlwL An SAtInu&VS fl kI4I
program Is ‘ i to seine that
— . puoL U
s w - I l
Managsa .am at
tS 5 ulsto&fesiL whoam da.ity
zs.p kls ‘S ep-’ J4ms .
mud bee. ski ls1 ii that of
•
Li —
hw ay 1 . . . 5&
, “ .i asis
- _____
necessary to — - * ahilisy to
provide guk ” and to make Infermed
d Løt Section 1 (dX2) of SARA
provide. dat t s th be t how,
0 f.LMI1 I f5r v4iwe
sad —- - __
The s.-l don,. . .,‘dthst
___
baits on a.beui a. ’— ob as reetuw
of health _Wdia1oflheVi 5d
c ” _ ’. - ’ pr vs eqvrp ” ’-
Employee. at bsemdoss waits
operations may fec. señosa health and
safety risks. P ..th 4 ers s te aesded of
thu end alwcek panc” e, u :my to
avoid h d& Pemonal p si ve
q ”’ psuvidse mack of this
protectmltham i s s a rs i t’ ” toth.
use. ma. and of p ... .aaI
p?Ot Jliw snob & it r— 1$
be pcepjyrAlII 4 to
provide ad.qaate prstectlo
naUaucIvst.Ioy, w . . t ha ttbs
for gai I saoy g I’
atth . i t t . . e sfesdas eI.p-
eqwp.set.th .I.vitolit-’-’.gp ,sitdsd
b..” t t with the .mkaVs ob
function and N ththI4. tLJ1
reemph the initial tishiI. .g to
updainmapispsssonsay ne--
or procths.s . ____
Saølsl*d13)ofSARA . . .
that — hoou cation
so employs. his is d da___
required by the V t °— ---
1*4)11) prevlda datC I ud
&,.ke s su who bees
afready ssaissd . uivslaat sa
The Real st.a d be. peosiolsa to
meet l s v
o°j to
whethes It.
requisu a w.ppsspitatl far
hazar sp--’ - O iA s
ptopo .ud i—.J- -
pam upb ( .) ‘ d to
ws - — — — that tovole. the dose-
‘. ol Mindam waits
diapo-al sites. 01.11 da ti ,1 by
0SHAk pp si lr- ’- wisma
that ru v.d a puh’—’i -—---c1
—& — -
tothe ___
addr.’ 1 L 1 g the —I— iof I 7
resp.s.e.. ——wtIt bs .c ’ ister
In this p—r----’-’- — “ — da apprepetat.
( e)(1 ) of the Dad x v i.
081 is Ith%th Iki
of psspod j spk (e)
with da ga
per (sKI) The tolsdactmy
P—-1 - of th. invi I bos bees
fIaL.L4pw, . _ ,.k M1 l) sad
propo ,4 pw,..pk ( ‘KR) his bees
r’ ” E ( . 1 1Kb. OSIJA ‘ ie1’ ’s
thisaa.ditoitaI ha. . .whIthgtveps
twa gseere&rsquiremesta andes a single
parsgrepb dried IGe_.LN
In psi apb (42) c i the Dual rule
OSHA is usin the lesp.g . of
par. apk (sKi) to ski proposaL See..
ml,i — or. — 4- to . .&4 the
of ski psr. eØ wlSbe
of the , . ..d
In perugreph MOb of tha
OSMA is s .msm ski
of paragraph (e)(Z) of the
S. ..L —---—ka a r.asd the
prop’ -ad 40-boar
for ill .mp14i. uho work an
sites (te., us
eny . 1O- tokeu.atic
TSObUOI , 10-4 Csei i ..1d Sh
10-41: ( sin . T. Duke . 10-71). Sam.
the— pbe11i,udthst4Obou
of Ir_IL , soe.o loyees ettle
type of site wis For exam
itwuddat40bemaoftr .
wan exoemive a sarsl isis . . a
may be ls p&: fes..Mg
emend me iis.ed its end whosr
not aij d to any hda Thi typ
____ ___orb
prL J..g Sb. spy. of teuke nermiH
of kwd
W 5i O Sth . __ yk.ryc
wh.wiu1bs’aIIgui athedIrt sft.a
thssttshubeenopeured lndest .
re hawdons waste may need
additimal LL.g becesaeaf the 1y
of ,.jp t they will be using md i
type, of bawde to which day wilib
Wsssuu k .a r— t I I
the 40 bone ” U-’- i
___ r 5 5 f
emplayma who aarenbs L
wokalMI ,ulsvaIflg. iL 1 sL e
,o _ w.L _ t Xba -
t&-l -J”g - — — of ski —
u -v- - ’ adds - - I.i iiI _ . to
eraykysein - se wh.. to
le,,ls me. ( si .
I .,eIDsadbe v iC — ’ - r -
OSHA hu . .vL.â IteP .w -- ‘ ho’
-s -
at irolled bsi it..
Fg ” it. OSHA Is
____lb. 40-hose. da y amthi
Job ‘ “ - “g esqslr OSSIA h
i o ’1. ” d that this toed .1 ten ng is
to , ...t.d l ..i
woxkam b.’ they see er agsd is
difficult work In mess with safety ow
health banarde. U..auvor . OSIIA
believes da C —’ 1.n —g ”
quite clear on this .at .
Hcw..vsr . for certain type, of 01hU
workers. 0814A ha. -h d that to
‘ “g may be app.pitit . War
example. these wultu. . who visit site’
only on .—- .--s—i 5fl4 esd the
supervision of . = —-‘d site worka
are requiredtobavs2 bmaeoiosi1w
and oamd.y of au4ki4sb lsraltr
OS,ais ..c i LutiIlhs ltt
same lend .1 it ’ ” vg would be
appro ats ho thou. aimat,
wur s who work to seam
been monitored sad fully tharos.-.
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Federal Register / Vol. 54, No. 42 I Monday. March 6. 1989 F Rules and Regulations
9305
indicating that exposures are under both
permissible exposure limits and
published exposure limits and that
respirators are not necessary.
In paragraph (e)(4) of the final rule
OSHA is using the language proposed in
paragraph (e)(3).
In paragraph (e)(5) of the final rule
OSHA is using the language proposed In
paragraph (eJ(4) with the addition of a
new sentence. Some commenters
thought that the proposed language for
the qualification of trainers was too
broad and ambiguous. The Slate of
Indiana (10-23) offered a representative
comment: “Knowledge or training
equivalent to (redundant phrase
removed) a level of training higher than
the level that they are presenting is no
assurance that an employee is capable
of providing adequate training to other
employees. ’
Another commenter, the International
Union of Operating Pngin ers (10-58).
stated. “We believe It irresponsible to
summarily state that trainers must be
‘qualified.’ without defining the term
other than to suggest that one who
knows more than the person he trains
may be a qualified trainer.”
Subsequent to the receipt of post-
hearing briefs, Congress amended
section 126(d) of SARA to require the
Secretary of Labor to develop
requirements for the certification of
training programs offered to employees
and employers who must meet the
training requirements of this standard.
OSHA will soon be publishing a Notice
of Proposed Rulemaking to carry out this
Congressional direction. The
requirements of that rulemaking will
expand on the provisions stated In this
rulemaking.
In order to provide interim guidance
to employees and employers in
determining the competency of trainers
and their qualifications. OSHA has
added two sentences to the proposed
Linguage. These sentences require the
use and demonstration of training.
credentials and experience to show
competency as a trainer.
In paragraph (e)(6J of the final rule
OSHA is using the language of proposed
paragraph (eJ(6) with one minor change.
In addition to permitting certification to
be given by the classroom instructor.
OSHA will also recognize certifications
given by the head or supervisory
instructor of the training facility. This
change recognizes the fact that some
training certificates are signed by the
head instructor upon recommendation of
the classroom instructor, rather than by
the Individual classroom instructor.
In paragraph (e)(7) of the final rule
OSHA is using the exact language of
proposed paragraph (eJ(7).
In paragraph (e)(8) of the final rule
OSHA is using the language of proposed
paragraph (e)(8) with the addition of an
example of the type of refresher training
that OSHA would consider acceptable.
OSHA considers, and has now
suggested. that critiques of prior
emergency response performance can
serve as a means of refresher training.
Critiques of performance during an
emergency response can give employees
a training experience In which they have
actual knowledge of the acceptable or
nonacceptable actions taken during the
response. Such critiques can also
provide employees with the experience
they may need to perform In a more
appropriate manner during their next
response. The proposed requirement for
annual refresher frnfnlng has not been
d nnget
In paragraph (e)(9) of the final rule
OSHA is using the exact language of
paragraph (e)(9) In the proposaL
Pazqgroph 0)—Medico! Surveillance
The proposed rule included specific
provisions for baseline, periodic and
termination medical wmiT2tions,
Section 126(b)(3) of SARA provides that
this rule Idude requirements for
medical e mIn tions of workers
engaged In hazardous waste operations.
In addition, the EPA manual referred to
in section 126(e) of SARA has more
detailed requirements for Initial or
baseline, periodic and termination
medical e, amin tions. The clear
Congressional direction Is to provide a
comprehensive medical surveilhnce
rogram for employees engaged In
ous waste operations where It Is
medically prudent
In paragraphs (f)(1) and (fl(2J OSHA Is
rn ’lcing some nhnitges for clarity. In -
addition, OSRA is using the new term
“permissible exposure limits or
published exposure levels” instead of
the term “established exposure levels.”
The reasoning for this change has been
discussed under the paragraph of this
preamble addressing definitions.
OSHA would like to clarify an Issue
concerning who Is covered by medical
surveillance under paragraph (fl(2) that
has cause confusion since the
promulgation of the interim final ruin.
After reviewing the record of comments
addressing medical surveil1n,ii It
seems that several commenters, In
particular from the fire service (I.e.. 10-I.
10—3.10-4.10-12.10-3210—79), believe
that all firefighters must have the
medical surveillance protections of
paragraph (f) since they may wear
respirators 30 days or more a year.
Firefighters responding to structural
fires will typically wear self-contained
breathing apparatus when they enter
burning structures or other hazardous
locations and they may make such
responses 30 days or more a year.
OSHA is not requiring aU firefighters
who wear respirators 30 days or more a
year to have medical surveillance.
Paragraph (I) applies only to Individuals
within the scope of paragraph (a)(1)(i)
through (a)(t)(ili) as set forth in
paragraph (a)(z)(II). Typical firefighters
from local fire departments do not fall
within this scope. These firefighters are
normally covered by the requirements of
paragraph (aJ as specified In paragraph
(a)(2)(iv). Paragraph (q) does not contain
requirements for medical surveillance of
firefighters unless they are members of
an organized and designated hazardous
materials response team, are hazardous
materials specialists, or have been
Injured due to an overexposure to health
hazards during an emergency Incident
Involving hazardous substances as
established ha paragraphs (e)(9) (i) and
In paragraph (Q(3) of the final OSHA
Is using the language proposed In
paragraph (fJ(2) with some changes. In
new paragraph (fl(3)(I)(B). OSHA Is
adding the phrase “unless the attending
physician believes aiionger interval Is
appropriate” to the proposed language
of paragraph (f)(2J(I)(B). Several
commen rs (State of Wyoming. i0-0
American Society of Safety Engineers.
10-29 Union Carbide Corporation. 10-
56) suggested that an annual medical
examinnfion maybe excessive for some
employees, particularly when an
attending physician can make a
recommendation for a less frequent
schedule. The American Society of
Safety Rnglneers (10-26) stated, “This
reviewer concurs in the approach that
OSHA has outlined in this comment
area that the practical health benefit of
annual medical examination for
hazardous waste operation workers is
indeed uncertain. This is a broad area
that requires input from the attending
physician, the employee and the
employer. It Is recommended that
annual medical examination riot be
required rigidly, that this be a flexible
time frequency.”
Wyoming (10-9) stated. “Periodic
occupational health physical
e’cantf nation on an annual basis may not
be warranted under all conditions.”
They go on to state. “It seems
reasonable that a good occupational
health program requiring physical
examination would be based upon
documented personal exposure levels
and a medical physician’s
recommendation rather than on an
arbitrary administrative decision to
require personnel to undergo annual
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lidaral Register I VoL 54, No 42 1. Monday. March od &!gt .J&
periodic physicals If they fit into the
categories under 1gwt g, (fl(1](l) and
(fl(13(li).”
(Mien CarbIde ( 10-56) saId . ‘“The
frequency of 1NSdII I a amI..!tIona and
cone vItadone in i pr pos.d rule has
been &afinad and the proposed h.ng .
clarifies the Issue of medical
siuvelliancs but retains the annual
requirement for ‘all employees who
wear a Ieiq Ir.tor ‘ .‘ This frequency
of Is arbitrary. There is not
medfcally-npportabla rational for this
annual requIrement.”
There were also c tinelts In support
of OSHA’. annusiphyutcal e mMelion
? equl .uent. . The ipat1onal Health
Nurse. (1040) stated. “AAOM J
supports pie-exposure. annual. and exit
examinations with provision of
additional If o- poahrn or
sign. or .yntptoms develop.” Lockheed
(10.45J responded to OSHA’s question
on whether er- tions should be
performed yearly, or at other 6 1. .vals
by stating . “Medical —“ should be
p ..L.. ...4 at least yearly. ”
• GSX r ami r Lrvic e . tue. (10-63)
stated. “(12) Paragraph (I) deseribes
madkal .mwillauee requirement.. The
general am deserthed by OSHA for
pie .a.v.pk TIL .L a...t postw’q r..
and imminetion me I Uou
is miinall ”
8P ”’!’— Inc. (10-85) stated, ‘“rho
need for medical welllancs of a . ,ik
who o.1d be w d ‘ “ lbS
peovlslona .f the , . rM regulation Is
mmparteL ” They
requirement to -- - worL .
e ’ipua.d In ajg aq situations, but
not tii .a iadi awvuiusncs
simply b.-- .oIth óIDgI ” episode .
is l’gl’ uL and Is sirragly
sup _ Having i —
....iL _ a n,uL. portodic medical
surveillance on the basis of lbs 8iidI g ,
of the medical a miv.adon Is. of course..
appropriate.”
Hic”u.e of variations In employee
exposures due to work schedules,
“ ‘ “ ‘nd physicals may not be medically
neo”’”ary . OSHA concludes that m a l t a 1
medical m a li...tIma may not always
be appropriate. Accordingly the
Is a.. dad to permit the
physician to rsdu the frequency to not
less than bI-a ’ ””-fly If the phy ””an
believes It is appropriate. Th. physician
may also menses the frequency If It Is
nadI fly . 1 ,psiats.
OSHA has also replaced the term
“estahl1, .d exposure limits ” with the
phrase “permissible exposur. limits or
publish.d expo. e levels” In new
paragraph ( 13(3)01(0 ) sInce the terms
have been dafMmd as previously
explained.
Th .iestofth. language mnsw
paragraph (13(3) r ”mmin , as It was
proposed In paragraph (13(23.
in paragraph (13(4)(l) of the final rule
OSHA is using the exact Language
proposed In paragraph ( 13(33(1).
In paragraph (f3(4)(Ll) of the final
OSIIA Is using the language of proposed
paragraph (13(33(11) wIth one d ange-
OSHA Is .tilI requiring that the content
of medical e nination and
consultations be determined by the
attending physician. However. OSHA
has added language that would direct
the employee. employer, and physician
to Appendix D for gu$ I 1 ”-e in
developing the .na ,.Matlon.
Several commenters requested
guidance on the content of the medical
examinations required by the proposaL
The Okotona Fire DistrIct (10-1)
commented. “As. w ,itI i the current
document Is rather vague.” They
continued.”.. . the document should
give g wlann . on what the physical
e,ra ’. ’nadon should entail.” The
American Association of O”mq,adoual
Health Nurses (10403. ‘uggeuted. “At
least munimura content of the physical
e,aminatlou should be specified. An
“exam” may be no more than visual
Inspection of en Individual’s eyes, ears
and throat and havens relevance to the
exposure situation.”
Other c —’ —- sup c d OSHA’s
— forth, employer and the
physician to 1.i—i -. . “ “ ‘ “ “ tion
protnools Eas aa Vndak (10-35)
JLIn ,nf1d , “We support OSHA’.
position that the physician is beat abLe
to dat l . .e an app,tiat.
surveillance protocoL As noted by
OSHA. pb eu may be exposed to
diff.tsg . ubs”” ”’e . and may be
to usa differing Levels of
personal pru” '’llvv equipment. iuch as
. wylg.Imj . In view of the particular
thmmstaaces presented, the physician
I . In the beat position to formulate and
follow an a 1 , ,date medical protocoL
OSRA should not include a detailed
— for niadlcal surveillance.”
LorfrIi q4 (10-45) responded to OSHA’..
Ismus on protocols, “No. As with
trnk.htg differences in amounts. kind.
and combinations of In
different working situations require that
protocol for medical surveillance be left
to the discretion of the a”” 11 ’ig
physician.”
Dr. fames Melius testified. Fd like to
direct most of my testimony to
discussion, of medical surveillance
programs far hazardous waste and
emergency response workers. Vd like to
begin be saying that programs far both
of the.. sets of workers are nnkuli . . .Iy
important.” (‘ft. pg. 107) He goes on to
s . ‘“rho medical surveIllance program
for lb. worker,, therefore,
with initially assessing the -
work at the site and their capability
conducting that work. It should Inch.
an assessment that focuses through.
medical history and initial poysical
e caininadon on their cardiovascular
respiratory system, also looking for
alga. of other major medical problen
Selective testing may also be useful i
these Instance. including pulmonary
function testing. chest x-ray. and
electrocardiograms. However. the
workers may differ In their benefits 1.
this testing depending on their age an
other risk factor..” (Ti. pgs. 110-111)
OSHA believe. bath sides of the
argument can be addressed by placin
re- .-uuaended criteria for medical
eviminatlon protocols In the Appendi
to this section. Some commenters ha%
suggested protocols that OSHA
considered for placement in the
Appendix. The St. Petersburg Fire
Dsparbnert (10-4) suggested. A full
physical evav.IInaliom height weight.
eyesight, pulse. blood pres .
respiratory. skin e, min ,tfon.
neurological examination, heart and
hinge, medical hIstory and any other
aspects determined by the physicIan.
Also Indeded arm Puiraruary fr r
test, chest X-ray, urine
blood test, and hearing ____
The chapter cii medical
fa in the OSHA/NIOSHl A/Coa!
Guard manual In Appendix? also
provides guidance. OS1f# also believe
that the language of Appendix V will
provide gtddanru for developing the
or- ’ ” ’.Uou protocol.
In paragraph (13(5) of the final rule
OSHA is using the language of
paragraph (13(4) in the prvpos.J with or
rha.iigs . OSHA has added a
recommendation that a physician
licensed In occupational medicine be
used to supervise or adnm.ter the
e amhtafion_ Several commenters
suggested that the use of such a
phyildan would assure a more complet
occupation-oriented ei .m{natton than
an. offered by a physician licensed in
another field.
Representative of these com 11ts
was the suggestion of lbs American
Association of Occupational Health
Nuries (10403. The AAOHN (10-303
stated, “The nature of the potential
exposure. in hazardous waete
operations requires epecialized
knowledge in !nLogy__knowledge ol
sips and symptoms and effects of
exposure to various substances—i
comman In basic health prof.asu”'
curricula. This Is Information t
occupational health nurses am
physicians may have via advan.
-------
Federal Register I Vol. 54. No. 42 / Monday. March 6. 1989 1 Rules and Regulations
9307
education degrees or continuing
education, certification and experience.”
The AAOHN recommended that OSHA
change its proposed language to require
the examination to be performed “by a
registered professional nurse or licensed
physician with training and expertise In
evaluating exposures to hazardous
substances.”
In recognition of AAOHN’s comments.
OSHA has added the recommendation
for the use of a physician from the field
of occupational health. The language of
the final rule. while ft does not preclude
the use of occupational nurses, does not
specifically call for the use of an
occupational nurse. The final language
reqwres that the examination be
conducted upder the supervision of a
licensed physician and that would
certainly allow the use of occupational
nurses if the attending physician
permits.
in paragraphs ( f l(s ). (fl(7J and (13(8) of
the final rule OSHA is using the exact
language proposed in paragraphs (13(5).
(13(6) and (13(7)
Paragraph (g)—Engiaeerirtg controls,
work proctices. znd personal protective
equipment for employee protection
OSHA is using thesame opening
paragraph for paragraph (g) that was In
the opening paragraph for paragraph fg)
in the proposaL
In paragraph (glll)(i) of ‘h i final rule
OSHA is using the language of
paragraph (glil)(i) of the proposal.
In paragraphs (g )(1)I ii) and (g)f1)(lil) of
the final rule OSHA is using the exact
lar’ uage of paragraphs (g)(1)f ii) and
(g)f13(iü) of the proposal, except that the
reference to Subpart G is deleted. A new
at agraph (g)(1)(iv) is added to cross
refere rce the requirements of Subpart C
f .r clarity.
In paragraph (g)(2) of the final rule
OSHA is using the language proposed In
paragraph (g)(2J with some editorial
modifications.
in paragraphs (gJ(31. (g)(4) and (g)(5J of
the final rule OSHA is using the
language of paragraphs (g)(3). (g) (4) and
(g115) in the proposal with minor
editorial corrections to be consistent
with the terms and language of the final
rule.
Paragraph (h)—Monitorm.g
In paragraph flr)(i) of the final rule
OSHA has combined the proposed
language in the opening paragraph and
paragraph (h)(1) of the proposal with a
clarification. The new paragraphs are
designated (h)(1)(i) and )(i)(ii).
In paragraph (h)(1)( ). OSHA has
modified its proposed language by
adding the phrase. “where It is not
obvious that an exposure does or does
not exist.” OSHA is adding this phrase
to clarify that monitoring is not
necessary where the site environment or
safety precautions taken by the
employer prevent employee exposure to
hazardous levels of chemical exposure.
OSHA Is oniy requiring monitoring
where there may be a question as to an
employee’s exposure. When there La a
question then the employer should
monitor. Where there is no question of
exposure. then monitoring is not
necessary. For example. if it is obvious
through site characterization and
analysis that there are no exposures at
the workaite. monitoring need not be
performed unless worksite conditions or
work practices change to the extent that
workers could be potentially exposed to
hazardous concentration, of chemical
exposure. If an employer decides that
employees should wear level B
protection in an area where exposure
will most probably be below the PELs,
then during initial entry monitoring will
not be necessary because the employees
are more than adequately protected.
hi paragraphs (h )(2) and (bJ(3) of the
final Me. OSHA Is using the language
proposed In paragraphs (*21 and (*3)
except for two changes. First. OSHA Is
adding Language to clarify that
monitoring should be used to determine
exposure above permissible exposure
limits which are not Immediately
dangerous to life or health. Second.
OSHA is deleting proposed
subparagraph (b) (3)(v) because It Is too
general inisature and the previous four
subpazagraphs adequately cover the
In paragraph (*4) OSHA is using the
exact language proposed in paragraph
(*4) with one addition. If employees
with the highest exposure are
overexposed, then representative
samples of other employees who may be
overexposed must be taken to determine
If controls or PPE are needed.
Paragraph (i)—!nfonnotionolprogr’ams
In paragraph (I) of the final rule
OSHA is using the language of
paragraph (I ) of the proposaL Minor
editorial changes have been made for
clarity without changing the proposed
requirements. The need far requirements
for informational programs Is discused
at S2 FRZ98ZSu r the preamble to out
proposal. There were few substantive
comments. OSHA concludes that these
provisions are necessary as discussed In
the proposal.
Paragraph (1)—Handling divine and
containers
In paragraph (j) of the final nile
OSHA is using the language proposed In
paragraph (j). Minor editorial changes
have been made for clarity without
changing the proposed requirements.
The need for requirements for handling
drums and containers is discussed at 52
FR 29629 in the preamble to our
proposaL There were few substantive
comments. OSHA concludes that these
provisions are necessary as discussed in
the proposaL
Paragraph (k)—Decontam,nation
In paragraph (k) of the final rule
OSHA is using the language of
paragraph (I c) in the proposaL However.
the agency has reorganized the
paragraph and provided headnotes to
make the reading of the paragraph
easier. The need for requirements For
decontamination is discussed at 52 FR
29629 in the preamble to our proposal.
There were few substantive comments.
OSHA concludes that these provisions
are necessary as discussed in the
proposal.
Paragraph (1)—Emergency response by
employees at ncontrolled hazardous
waste sites
In paragraph ( 13(1) OSHA Is using the
exact language from proposed
paragraph (l)(1)(i).
In paragraphs (lJ(2)ffi) through
(fl(2)(xI) OSHA is using the exact text
from paragraph (1ff 1)(ii)(A) through
- (l)(1)(ii)(X).
In paragraph (13(3) OSHA is ushig the
language of proposed paragraph
(l)(2)(i)(AJ with some modification. The
modifications are considered editorial
and are made because of OSHA’s
reorganization of the overall proposed
paragraph (I). In paragraph (1ff 3) OSHA
will require that employees performing
emergency response at uncontrolled
hazardous waste sites be trained in
accordance with paragraph (e) of this
section. This requirement is the same as
proposed in the first part of proposed
paragraph (l3(ZJ(i)(A). The portion of
proposed paragraph (l)(Zffi)(A) that
addresses training at RCRA sites is
moved to the discussion of training in
paragraph (p) of this rulemaking
because of OSHA’s reorganization of
ths paragraph.
The language proposed in paragraph
(1ff 2ff 13 ( 5) has been moved to paragraph
(e)(9) of this final rule. This move is
considered editorial since it does not
change any duties imposed on the
employer, it only reflects the
reorganization of proposed paragraph
(I ).
hr paragraphs (L)(4)(i) through
(1)(4)(vii) OSHA is using the exact
language from paragraphs (l)(Zffil)(4f4
through (1ff 2)(ii)(G).
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Fad.1 Register I Vol. 54. No. 42 I Monday, March 6 19
/
X f
pu ph . (11(2) and (JJ (2l of the
, . k,aal wtlksom. ifosuoup due to
the realpuisaften of the emergency
of the proposaL
AU 6 (m) nmh
In paragraph (ra) and TabLe H-IZLZ of
the final rule OSHA Is natal the
language of paragraph (oi) and Table H-
i .i of the proposal with one minor
eh. gs . OSHA hu combined the
language of the opening paragraph and
paragraph (m)(1) of the proposal Into
one paragraph designated paragraph
(es). Minor editorial changes hav, been
mad, for alertly without thanglng the
proposed requirements. OSHA baa
combined the 1a gn.ge of the opeulag
paragraph and paragraph (mJ(1) of the
proposal Into nu paragraph designated
paragraph (ra). Th. need for
requirements for ill -tton Is
“ .ntu.d at 52 FR aesi In the preemble
to oar proposal. There ware law
substantive OSHA d de ,
that thee. prsvls*one are ne ury as
dIw”-isd in lbs proposal.
at mparwy
-OSHA Is using th. la guege of
paragraph (ii) In the praposal with some
minor ed*torisj changes . The openbg
paragraph of pr - j paragraph (a)
baa b en lets4 beonma ft Ii not a
requ1remos and Table H-ies.2 he,
been renumbered Table H-i , Minor
editorial changes have been made for
— without the proposed
requIrements. Th. used far requirements
for uu hitIon I , Atm 1 r at 52 FR
is the paaImM , to car proposal .
There wer, few substang,, .------ uq
OSHA wL that these provisions
are as alt.rn lId in the
Pwr,g,cpk (o fow chj o
i npar pb(o)ofthsfl J,
05*1*1 . using the language of proposed
paragraph (p) ThIs chang, Is necessary
du, to the reorga lfon of the
emergency response requLr enr and
the Ruouruig Caaewwnggoa and
RawvayActoflgyg (R s4 . Proposed
paragraph (o) ha. been moved to
paragraph (p1 of the final rule.
In paragraph (o1(1) of the final rule
OSHA Is using the exact language that
we. proposed In paragraph (pfl l) .
In para ph (0 1210 1 the final rule
05*4* has md language of
paragraph (p1(2) wlthsomo changes.
OSHA ha. revised th, paragraph to
indude some additional emp1.s of
au epi .bJ , means of suppression. me
agency has also added additional
lnfozmatio to provide gtthI vu to the
employer In fl ithtg evaluations 01
products and new technologies. These
change. are considered to be editorial
since the requirement of the proposal
baa net changet
Thragrcph (p)—Cezioin operations
co nduct e d wide, the Resource
Congerv tio and RecoreayAa of 1976
(RCRA)
In paragraph (p) cEth. final rule
OSHA is using the language proposed In
paragraph (a) with some changes.
OSHA has revised the opening
paragraph of the psupc...i to Indude
large quantity generator, c i hazardous
waste that store those wastes less than
y s with lfl th e e cgp. o fthj.
paragraph.
In paragraphs (p 1 (i). (p1(2). (P11* and
(p 1(4) of the Oust rule 08*1* has used
the propo 1 ed language of pseigr.phs
(o1(i) , (o1(2), (01(5), aud.(.J(41 with some
mime editorial thm The proposed
requirements for each individual
— Z 51u the__
OS}IA is adding two new paragraphs.
(p)(5) and fpJ(5) , to address new
technology pcugr and material-
h.i dlIngjuv . . fo
paragraph4p1(5) 05*4* teqaL the
employsstsd eveJ a n&I..,rz-
for using new____
and equipment. Cungresa In SARA
leq 05*t& addre .
new tchnolcgy pro .s In Its rvle The
Leii i.g, of the pa pus1 Vust.4 e
- 4057 pU touscunVotied
waste sttss. OSHA in adding
this psrupmp to complete Congruu’s
diruiji, . and to addie. , these propmms
atR A1 facilities.
hr paragraph (p 1 (e) OSHA Is requiring
employer, to develop and Implement a
material hai.dftrrg program for the same
reason, as stated aboes.
language from paragraph (oJ(5) of the
proposal with some changes. In
paragraph (P11710103*1* Is using the
language of paragraph (o1(53(I) with one
ehimg OSHA has moved * requirement
to paragraph ( pft7)(I ) h um th. last
sentence of proposed paragraph fo1(5J(Il)
that reqniz . employers to provide
employees with a csrfiflcat, Indicating
that they have successfully completed
the training required in the paragraph.
05*1* believes that the Issuance of this
certificate will make it easier far
employers to determine if new
employee, have completed the
e ary tseMtivg and are .eady for
employment
In paragraph (pJ(
OSHA Is using the lanai & .
paragraph (oJ(5)(ll) of the prop
two exceptions. First, the last r
of proposed paragraph (o)(51(ii
been moved to Paragraph (p1(7
final rule as dl.aiued above. S
the requirement for eight hours
annual refresher training in add
paragraph. 03*1* has added th
requirement to this paragraph b
the new format of the final njlei
addresses training for new empi
and rent employees separate I
proposal there was no dlsttnctio,
between the two groups of empk
In paragraph (p1(73(111) OSHA l
added a new paragraph addressi.
tr liifiig of trainer, who will be
providing the required training to
employees. 08*1* received man!
on trainer. ’ qii lifica tic
The proposed language for RCRA
facilities did not addres. these
q 115 ’ .*ins Therefore OSHA is
eqWring that trainers be properly
trained and qualified to conduct tt
__ag that they are expected t
In paragraph (p3(e of the fInal 0
addresses thesubjeotsiri
laparagraph(I)of,Mp !u
parapmph pptied to RC A D
facilities. Most o the laag qg used
this paragraph has been taken from
proposed paiagr. 1 h . (13(1).
in paragraph ( p 3 ( 1 3 ( 1) of the final r
OSHA has need some 01 the Isngira 1
from paragraph ( 13(13(1) of the proper
me basic requirement for the
development and Implementation of
written emergency action plan that
address,, .it. procedures for bandlii
emergency response I. the Same in t
final rule as it was in the proposal.
03*4* will still permit an exemption
from this paragraph if the employer
totally evacuates the facility at the th
of the emergency end has an emergen
action plan meeting the requirements
29 CFR 191o.3 a). OSHA considers t
changes made In this paragraph to be
editorial since the proposed obligatior
of the employer r.m in the same
In paragraph (pJ(8)(li) of the final to’
OSHA has used the language of
proposed paragraph (I)(13(ll). This
paragraph contains the mm....um
elements that must be addressed in th
employer, emergency response plan.
The baetc elements of the required
remain the same as proposed
As stated before. trnbñng av’ -
ce tiflcstion of tre.lningwere - hi
many Isauss discussed during
rulemaking for hi. final rule, Several
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Pliorsi. b ue I Vol. 54. No.42 1_Monday, March 8. 1989 / Rules and Regulations
comn .. .Ita,, h 44 cated.tbat there wasa
need for more spd&”—H 1 4 entail ’
for the coorses lob. ..MM,4 and tha
quality of the lnstrucIm.p essuting the
courses. In light of thoes ‘ nts,
OSHA has added a new paragraph
(p3(8)(lll) that addresses emergency
response fr I ing on R A TSD
faciliti es The language that Is used In
the final rule was developed from that
suggested in the comman’ , made to the
record of this proceeding.
Basically OSHA Is requiring that ,1l
employees who are expected to purfw
emergency response at RCRA TSD
facilities be trained in how to safely
perform emergency response duties
prior to being called upon to perform
those duties (See paragraph
(p)(8)(Iil3(A).J Examples of the types of
tr In ’Tig to be provided have been given.
Exemptions are provided In Exception
—1 and Exception 2 when employee
exposwe Is reduced through pre.
emergency p 1 nrn ig that includes
development of employee awareness of
hazards. OSHA Is also requiring that
employees who have attended and
successfully completed the lr.frthi g that
is required In paragraph (p 3 (8) be
certified as having done so. Employers
would also have to certify the continued
competency of employees on en . unval
basis (See paragraph (p3(83(1113(C)).
In paragraph (pJ(8)Øv) of the final to!s
OSHA Isaddreufng the proc durs to
be used for h. . dling emergency
incidents. The language In the final rule
has bee. taken-from paragraph (1)(2)(I1)
and th,r l... —’ ts r ’. ” the same
as paut
Parogzqph (gl—Na rge.cyrpono to
hazardous nobitanc. avkos.. not
previoiwjycovwad
In paragraph ( eJ OSHA Is i .jLg
those em response
that o at locations other than
“ trolled hazardous wast, sites and
RCRA TSD facilities. Th. typical alt.
covered by this paragraph would be a
transportation a A.n* where
hazardous substances are or have the
potential for I.aklng into the
environme Other sites c.. ..d by this
paragraph wouid I l ui . hazardous
substance releases at haui L .I
manufacturing f.eIHH. , such as the
release that at the Union
Carbide plants In Buphol. India . and
Institute. WV.
A typical scenario where this
paragraph would be applicable would
be the emergency response to a derailed
tank car cont’.htlng a hazardous
substance that has begun to leak Its
contents into the atmn.ph.re . The
emergency respa to this type of
accident would usually include the first
responders (La., wituesses. police,
employees on. the train), the first
dispatched.responsers (La., the first due
rescue and fire apparatus), any multiple
alarm dispatches (I.e., additional fire
and rescue apparatus, HAZMAT ‘ ems ,
state fire marshal. Coast Guard or
Federal E.P.A. national respons. teams),
and the dean-up mew (La.. initial
response employees of the site owner
who clean-up the release), Employees of
outside clean-up contractors wouid be
covered by paragraphs (b) through (p3.
As the clean-up scenario proceeds
towards completion, the various
employees on the scene will need
different levels of b hth ,g and
protective equi ’.’ t required In this
paragraph.
In paragraph (qJ(1) of the final rule
OSHA Is using the language P ” from
paragraph (l)(i)(l) with some “ i”r
editorial changes. OSHA wants to
emphasize that employers who will
evacuate their employees from the
workplace when an guscy occera
andwhodonotparrnjtanyofth e ir
employees to assist in ha,uIthi g the
emergency ate &= mpt from the
requirements of this paragraph If they
provide an emergency e nn plan In
accordance with I 1820.38(a).
In paragraph (q3(2) of thefinahrule
OSHA Is using the a ac language of
paagrapkfl3(u).
OSHA Is using the languag. proposed In
paragraph (13(33(11) with the followIng
th gm& In paragraph (qX33(I) OSRA
ha. used the kngii&gs proposed In
i ara aph (IJ(3XIIJAJ with some rhai g .
OSHA has deleted the requirement that
the senIor official responding to an
hazardous — H5
es 1 4Wiihe uthL .. t Ci .m .sa.I System
(ICS). As a result of other . ,J .. , ,.suts
In this Seal rule, the Ttidsiant i iwl
S,.t... should already be established
prior to an emergency . The s or
offi’ 4 ’sI responding tea. I”—u t scene
should onlyneed to take charge of the
n — ” and begin to lmpI.mai t the
prepI iinsd ICS.
In paragraph (qJ(33(lv) OSHA has
used the proposed language of
paragraph (l3(33(U)(D) witha change.
The proposed language required all
employees ja -d in emergmIcy
respi4lse and alqo. . ,d to hamedous
subs’ ”.s in any way to wear positive
pressure self-contained breathing
apparatus while engaged in emergency
response. The final rule will require only
those employees engaged In emergency
response and exposed to hazardous
subssaI a!e, “presenting an “I’ UOn
ha rd or potential hik.6d 0 . hemyd”
• to wear positive pressure self-contained
breathing apparatus. OSHA has made
this rhaqge since several comments
suggested that some Individuals engaged
in emergency response may be exposed
to hazardous substances that do not
pose an hih.6t1 0 . hazard and.
therefore, would negate the need for
respiratory protection. Such protection
would become a burden to those
employees engaged In operations not
requiring the use of such equipment
In paragraph (qJ(3)(vi) of the final rule
OSHA has used the language of
paragraph (I)(33(1l)(F) with the following
change. In the proposal OSHA called for
“qualified basic life supporr personnel
to be present at the sIte. In some
emergency medical service (EMS)
systems the term “bailc .Ilfe support
(BLSJ” Identifies a unique group of
trained Individuals who have received
an established level of specialized
trelnh g Typically emergency medical
response begins at the first-responder
level, and through basic-first
aid and basic-life support to advanced.
life support (ALS). The amount of
tr.Inl”g end expertise Inoreases at
Individuals prc . through the systeis.
As a result of several cvIv m its , OSHA
hasdacid edto t ed .ths Ievelof
tr—li’l.g re.rviid for a minimum stand-
by capability atS hazardous waste sites.
Employees trained and qi Hfi.d in
basic first aid have the basic skills such
as initial patient as ” ” k
- ‘---“‘ of airway, wIzJ of
bleeding. Inimnbilfrntfon of fra e..
and possibly cerdlopuheonary
resucitation (CPR) to Inimies
until ahigh. level iU r ’ 1 ”u..Iv .I . If
response time for 113 or ALS Is long
enougk that It Is a..ry for this level
of fri” t ng to beat the site in case of an
emergency, this rule does not prohibit
the stationing of this level at the site.
OSRA believes that If BIS or
ALS service Is available within a
reasonable time, a qnIIR.d basic first
alder can provide the necessary Interim
The rest of the language in paragraph
(q3(3) contaJns the language that was
proposed In paragraph (l)(33(1I) without
In paragraph (q)(4) of the final rule
OSHA has used the language from
paragraph (13(33(13(C) with some minor
editorial changes to reflect the changes
made to other paragraphs In this rule.
The basic requirement for the use and
frI?thig of skilled support personnel
remain , the same as It was proposed.
Lu paragraph (q)(53 of the final rule
OSHA has used the language from
paragraph (13(33(13(11 with one major
rhange OSHA has 1 IImI j
requirement for 24 hours of training for
specialist employees and has replaced it
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9310
!ede a1 Register! Vol. 54. No. 42 / Monday. March 6,1989 1 Rules and Regulations
with a requirement for annual training
or demonstration of competency In their
area of specialization. The required
minimum hours of training was deleted
because some employees may need
more or may need less than 24 hours for
their area of specialization. Specialized
employees are by definition indiv iduals
specialized In their area of expertise and
should only require whatever level of
training Is necessary to maintain their
level of competency. OSHA considers
the other changes made to the language
of this paragraph to be editorial.
In paragraph (q 6) of the final rule
OSHA addresses the training
requirements for employees who will be
responding to hazardous materials
Incidents. In paragraph (q)(8) (i). (ii).
(iii ), and (iv) OSHA has provided tiered
training criteria for those employees
who may be designated as members of
an emergency response team. The
various Levels of response and the
required competency levels are based
upon recognized levels of response
being discussed In the hazardous
materials response industry as
recommended in several of the -
comments made during this rulem ldng
To Illustrate OSHA’. tiered approach
to training, the following scenario
describes a possible emergency
response call.
A state trooper Is on routine patrol
along a highway passing through a
residential and light Industrial area of a
large metropolitan city. Ahead In his
path of travel, the trooper notices a
multI-vehIcle accident Involving a large
overturned tank truck. Immediately the
trooper uses his radio to contact his
dispatcher to report the accident After
letting the dispatcher know the location
and type of accident, the trooper places
his vehicle across the travel lanes of the
highway approaching the accident site
to stop traffic While he Is doing this the
dispatcher Is alerting the fire and rescue
companies in the Immediate area and
dispatching an established number of
lire and rescue vehicles. The trooper
then surveys the accident scene from his
vehicle trying to identify the type of
cargo on the overturned truck. Seeing
three different U.S. DOT placards on the
vehicle the trooper makes note of the
four digit numbers and checks his DOT
Emergency Response Guide for a -
summary of actions to be taken for the
chemicals Identified on the placards.
After determining his next on-site
responsibility, he recontacts his
dispatcher with the additional
information and secures the scene. He
stays away from the Immediate accident
site and does not become involved In
rescue or site mitigation.
While the trooper has been securing
the scene, the fire and rescue units
dispatched after his first radio call begin
to arrive on the scene with the
additional information from the
trooper’s second call. The officer-In-
charge (0(C) of the fire/rescue response
stops his vehicles ins safe location and
contacts the state trooper. After
determining the type of accident and
vehicles involved, the O!C takes control
of the scene and directs his crews to
take a predetermined defensive action
In controlling a leak that has begun on
the tanker. The OIC then contacts the
dispatcher and reports his assessment of
the accident scene including the fact
that the tanker Is now leaking. He
requests the dispatcher to send him the
closest hazardous materials response
team. He also asks for representatives
from the shipper of the liquid and the
liquid’s manufacturer.
In the meantime, firefighters have
established a perimeter defense of the
accident scene using fire hose lines and
proper personal protective equpment..
They begin to evacuate surrounding
homes and businesses as indicated In
the Emergency Response Guide in case
the leaking tanker should explode. They
construct dikes and diversion pits to
contain water and chemical run-off from
the fire hose lines. Rescue personneL
including emergency medical
technicians, have made a preliln 4 navy:
assessment of the . 1.1 scene and
have determined whether any -
lndMduals In the spill area are trapped
in their vehicles or need Immediate
assistance. They report their
observations to the OIC.
A decision Is made by the OIC based
upon the reports of the police officer, the
emergency response crew, and the data
on the DOT placards, that no rescue
attempts can be made safely until such
time as the leaking liquid is positively
Identified and controlled by the
HAZMAT team. The proper local
authorities are notified under the
requirements of SARA Title ilL
As firefighters continue to provide
defensive protection of the scene and u
emergency medical technicians
establish a triage area for the treatment
of injured passenger., the HAZMAT
team arrives and begins to take control
of the accident scene. Hazardous
materials technicians and specialists
assess the scene and plan their attack
on the leaking tanker.
After equipmg themselves properly.
the HAZMAT team makes a finaL pre-
attack evaluation of the scene. Including
a scan of the area with appropriate
monitoring equipment, and reports Its
findings to the fire and rescue personneL
Based upon the results of the pre-a’
evaluation and a determination by
HAZMAT team members using
monitoring equipment that the spill area
Is non-hazardous. rescue personnel now
enter the area of the accident to provide
emergency medical treatment to injured
passengers and to extricate those
passengers who may have been trapped
In then vehicles. The HAZMAT team
proceeds to the point of release and
secures the leak.
After all the Injured have been cared
for and after the leak has been stopped.
the firefighters and RAZMAT team
begin to clean-up the accident scene In
accordance with pre-planned
procedures.
All four levels of hazardous materials
response have played a role in this
scenario. The state trooper, the first on
the scene. Is the first responder
awareness leveL The first responding
fire and rescue companies who provided
the defensive attack are the flr*t
responder operations leveL The
responding HAZMAT team had both
hazardous materials technicians and
hazardous materials specialists. In this
scenario the state trooper would have to
have a sufficient amount of training, the
first responding fire/rescue companies
would need eight hours of training. and
the HAZMAT team would need 24 hoi
of tratning The tiered training schedn.
Is based upon the duties and
responsibilities of the Individuals
Involved 1st the various levels of
response Illustrated In the scenario.
In paragraph (q)(7J of the final role
OSHA Is addressing the competency of
the trainers who will be providing the
training necessary for those employees
responding to hazardous materials
Incidents. As discussed before, several
coinmenters were concerned that
OSHA’s proposal for the qualifications
of trainers was too weak.
In paragraph (qJ(8) of the final rule
OSHA Is addressing refresher training
for those employees who have been
trained In accordance with paragraph
(q)(8). In paragraph (l)(3)(i)(A) of the
proposal OSHA addressed the training
of employees who perform emergency
response at non-hazardous waste clean-
up sites. OSHA Is using this proposed
Language In paragraphs (q3(8)(i) and
(q)(8)(U) because the language of the
proposal was Intended to cover the type
or emergency response now regulated
by paragraph (q).
In paragraph (qJ(9) of the final rule
OSHA is using the language of
paragraph (l3(4)(ii) of the proposal with
some editorial change. The basic
requirement that employees whi are
members of an organized or designated
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Federal Register / Vol. 54. No. 42 / Monday, March 6. 1989 / Rules and Regulations
MA MT team and hazardous
materials spectalists receive a baseline
physical miutnatlon In accordance
anth paragraph (I) of this section
rr’ the same as proposed.
In paragraph (qXlo) of the final rule
OSHA l su s lngtheproposedlanguageof
paragraph (l)t4J(IflJ
• fir paragraph (qj(ij) of the final rule
OSHA Is uliig the exact language as
proposed In paragraph ( f l ( s ). In
paragraph (l)(s) OSHA regulated post-
emergency than-up and the language
used In that paragraph has caused some
confusion. Rather than change the basic
requirement, OSHA Is offering the
following clarification of the intent of
paragraph (qJ(1a) ______
Post -emergency 1lI.ponse can be
performed by two basic groups of
erapleysesi aInpI ,cs of the site, or
employees from off of the sate. Post.
emergency clean-up begins when the
Individual In charge of the initial
emergency response declares the site to
be under control and ready for clean-up.
For the purposes of this rule, paragraph
(qJ(11) will apply to those employee.
who come from other_mployers located
off-of-the-site to perf post.
emergency clean-up. Employees of the
“ p nyer at the site where the release
o d , and who perform post.
emergency dean-up. are considered,
undurthlsruje, tobepaztofthe
emaig .. y I mp ,iuje and not subject to
paragraph (qJ(1i). The reason for this
distinction Is that employees at the site
emomf ’I”.wlth the types of
emugendes that may ocour and the
types of dean-op operations that may
hav, to take place. The more hazardous
to employees oc . when
out.Ids canteactor, or other off-sit.
employees are brought Into a s ange
environment and are expected to clean.
up the re.khje from a se With this
clarification, OSRA concludes that no
th g to the proposed language is
IlL Saary of the Preliminary
‘ -pact As
PTaCfldve Order 12892146 PR 13197,
February 19, 1981) requires that a
regulatory impact analysis be conducted
for any rule having major economic
consequen_ces the national economy.
individual Industries, geographical
regions, or levels of government. In
addition. the Regulatory flexibility Act
ofl980Lge-. ,esstatalns(s
U.S.C. 801 it seq j) requires the
Occupational Safety and Health
AdqiIugatr j 0 (OSHA) to determine
whether a regulation will have a
significant economic Impact on a
substantial number of small entities, and
the National Environmental Policy Act
(NEPA) of 1969(42 U.S.C. 4321. etseq )
requires the agency to assess the
environniental conseqnonc s of
regulatory actions.
In order to comply with these
requirements, OSHA has prepared a
Regulatory Impact and Regulatory
Flexibility Analysis (RIA) for the
hazardous waste operations and
emergency response standard. This
analysis Includes a profile of the
industries that will be affected, the
estimated number of employees who are
at risk from o upationaj expoiura _ i to
hazardous wastes, technological
feasibility, costs, benefits, and an
overall economic Impact of the
standard. The RIA Is available In the
OSHA Docket Office.
Data Sowyas
The primary sources of Information
used for this analysis a i m an April1987
report by the Eastern Research Group
(ERG) entitled, “Preparation of Data To
Support a Regulatory Analysis arid
Environmental Assessment of the
Proposed S’ ’dayd for Woridugat
Hazardous Waste Siteer and the
comments supplied In response to the
Notics of Proposed Pnlau t.lrIng , the
made during the public
hearings, and thepost-heezgng
cym 5fltI and submissions, The
Information contained in the ERG report
was gathered om the &w1,.-.-.-m ,t I
Probmfton Agency soe
sources, expert . in the area of
hazardous waste sin.
Consequsnily, OSHlt believe, that ft
hasglvenduenotfce t o a ll ,p 0 5 j, ,
parties arid that the data used are the
best available data for this final
Rag lito,y Impact Analysis (RIA).
lnthuIsrypr opk
The standard will ect about soooo
“ o ’iroUed hazardous waste sites,
about 4,000 hazardous waste opar.tlons
conducted under the Resmiro
Conservation and Recovery Act (RCRA)
of 1978, about spills of hazardous
materials that occur avm ” IIy outside a
fixed facility, and about 11.000 spills of
hazardou, material that occur anmally
inside a fixed facility. The firms that wail
be affected by this s’ ”dard are as
followsi about lao contractors that
perform hazardous waste site dean-ups,
about 50 engineerIng or technical
services firms that perform ha mdous
waste preliminary assesemen_te or sits
Investigations and remedial
investigations or feasibility studies for
hazardous waste site cleanups, about
9:
300 RCRA-reguiated commer j j
treatment, stàrage and disposal
facilities: about 3.7 RCR .regeJatec
facilities that are operated by a
hazardous waste generator about 19.i
state and local police departments
about 28,000 fire departments about?
private baa rdousinaterin . (HAfldA
response teams: and about ‘ 2,960
manufactures that use in-boor,
personnel to respond to emergency
spills of hazardous materials within t
facility.
Population at Risk
As many as 1.758 million employees
police officers, and firefighters may be
at risk from exposure to hazardous
waste or to hazardous matmials durini
an emergency response to a hazardous
materiaj spill. Of these employees, abc
14.000 work at uncontrolled hazardous
waste site cleanups, woo at RCRA-
regulated facilities, 5 28O are police
officers, 944.500 are firefighters, 7,500
are private HA IAT member. , and
276.900 are members of industrial fire
brig.des that provide in -pla
emergency responses to hazardous
material spills. Most of these employer
how,.,. , do not work fiditime around
hazardous waste. In fact, most police
fflers will not face a hazardous
material emergency and ma.’
fire f’gh’—v and IridastrW fir. brigade
psiu.- , . . .a1 . who are at risk, are . mmpll
exposed to hazardous matwiab for em
a few hem..
FeasibIlity
Tb. standard does riot require then.
of any large-scale p’ 1 e. ant lb
Is not currently used in m ol work
operation.. In addition, each provision
requires ‘ M- nt and woch practices
that are mi dy avallahin- 1%_us,
OSHA has determined that the . Thr
is technologically feasible.
Benefit,
This standard will protect 1.757
million employee, and flre’igh’ . from
health and safety hazards caused by
their exposure to hazardous wastes. Th
benefits of this sianinrd are quantified
in Chapter 3 of the Final Regulatory
Analysis (ERA). The FRA In timtes thu
this stawI.pd will prevent 20 cancer
deaths per year and from8 to 20 deaths
per year front cardiovascular,
neurological, renal and liver disorders.
The stimlerd will also prevent 2.925
Injuries per year Involving 18,700 lost
work days. The ERA also estimates thu
8 fatalities that are not illness related
will be prevented. This last figure as
likely to be an underestimate. Indlvidua
Inrldents which are discussed In
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9312
Federal Register / Vol. 54. No. 42 / Monday, March 6, 1989 / Rules and Regulations
Chapter 3 and which may have been
prevented by following the standard
have sometimes led to more than 6
deaths. Alan. the FRA does not take Into
account the benefits to the surrounding.
non-worker community derived from the
better handing of hazardous waste and
emergency response incidents by the
more qualified, properly trained and
equiped response teams that are likely
to result from compliance with this
standard.
Chapter 3 of the FRA also presents
risk rates. For example, the 17 excess
cancer deaths per 1000 exposed
hazardous waste workers for an
occupational lifetime of exposures Is
likely to be reduced by 75 per cent.
OSHA concludes therefore, that this
standard will substantially reduce the
significant risk of material Impairment
of health which results from exposure to
hazardous waste either at hazardous
waste operations or from emergency
response.
However. section 126 of SARA gives
OSHA clear statutory directions to issue
this standard and is reasonably explicit
about whet type of provisions should be
included. Section 126 Is also a free
standing provision and not an
amendment to the OSH Act.
Accordingly, It evidences a legislative
intent to Issue these regulations without
the specific need to quantify benefits
and reach significant risk conclusions.
Cost of Compliance
OSHA used current work practices as
its baseline for estimating the cost of full
compliance with the standard. Th1s
estimated cost does not Include any cost
that Is currently being incurred by
employers as part of their work
practices because those work practices.
and therefore those costs. would -
continue whether or not the final
standard were promulgated.
OSHA estimated that the total
annualized incremental cost of full
compliance with the sI M rd will be
about 5153.422 million, of which $V.966
million will be spent by contractors on
government-mandated dean-ups of
uncontrolled hazardous waste sites,
$18372 million will be spent by RCRA-
regulated facility cleanups and
operations. $17332 million will be spent
by police departments. $50553 million
will be spent by fire departments, $4226
million will be spent by private
HAZMAT teams, and 529.179 million
will be spent by Industrial fire brigades.
The provision with the largest annual
cost of compliance is the employee
training provision ($92978 million),
followed by the medical surveillance
provision (511.293 million), the use of
escape self-contained breathing
apparatus (89.507 million), and the
written plan to minimize employee
exposure to hazardous materials during
postemergency cleanups of hazardous
materials spills ($8381 million).
Economic Impacts
Most of the incremental cost of
compliance will be paid by the
government or the private firm
responsible for the hazardous waste
cleanup. OSHA calculated that It is
economically feasible for every affected
industry or group to comply with the
standard. There may be an Impact upon
some labor markets as a consequence of
the provision that only sufficiently
experience employees, or employees -
certified to have received the necessary
training at an appropriate training
facility, will be allowed to work on
hazardous waste sites. This provision
will effectively curtail the current
practice of using local subcontractors to
provide short-term employees for
hazardous waste site cleanups and limit
the number of employees eligible to -
work at hazardous waste sites. This In
turn, may Increue futur wage rates
and the cost of hazardous waste site
cleanups.
Regulator, F?exibilityAnaiysis
Pursuant to the Regulatory Flexibility
Act of 1980, the Assistant Secretary has
assessed the expected impacts of the
standard on small entities. Based on the
available Information, OSHA
determined that the standard may have
some impact upon some small entities.
The cost of adequately training an
employee off-site prior to working at a
hazardous waste site cleanup will
substantially reduce the use of
subcontractor labor on a one-time basis.
Thus, some local subcontractors face a
potential reduction in hazardous waste
site cleanup work. The majority of this
subcontracted work will probably be
performed by those subcontractors who
concentrate upon this type of work.
Subcontractors who have performed
cleanup work but who do not elect to
train employees needed to qualify for
future work will probably be excluded
from working In this market
In addition, there could be an
economic impact upon some small local
fire departments depending upon the
amount of financial resources available
to them for additional training. With the
allowance for different amounts of
training hours depending upon the
expected extent of Involvement with
hazardous materials spills. OSHA
believes that this economic impact will
not significantly affect a substantive
number of local fire departments.
Environmental Impact Assessm
Finding of No Significant Impact
OSHA reviewed the final standard
and concluded that no significant
environmental impacts are likely to
result from its promulgation. In OSHA’s
December 19. 1986. interim final rule for
the protection of workers engaged In
hazardous waste and emergency
response operations. information was
solicited from the public on various
issues. Including possible environmental
impacts of the regulation. On the basis
of the review detailed below, and in
accordance with the requirements of the
National Environmental Policy Act
(NEPA) of 1969 (42 U.S.C. 4321 et seq.).
the Council on Environmental Quality
(CEQ] NEPA regulations (40 CFR Part
1500 et seq.), and the Department of
Labor’s Implementing regulations for
NEPA compliance (29 CFR Part 11). the
Assistant Secretary determined that the
standard-will not have a significant
Impact on the external environment
In most OSHA regulatory actions. two
environments may be affected: (1) The
workplace environment, and (2) the
general human environment external to
the workplace, Including impacts on air
and water pollution, solid waste, azy—
energy and land use. The hazard’
waste standard, however. is uni
that It focuses on the external
environment because during these
operations, the workplace and the
external environment are usually one
and the same. The standard is also
unusual In that it is the first regulation
since the passage of the Occupational
Safety and Health Act of 1970 (the Act)
to be mandated specifically by Congress
under section 128 of the Superfund
Amendments and Reauthorization Act
(SARA). As indicated in the earlier
sections of this Notice, the provisions of
sectièn 126 detail those protections that
OSHA must Include for workers at
hazardous waste and emergency
response operations. For example,
section 128 requires that provisions for
site analysis, training, and medical
surveillance, among others, be included
In the standard. In addition, there Is a
wide range of OSHA. EPA, and other
standards that already apply to some
activities that occur at hazardous waste
sites and during emergency response
operations. For example. there are
existing OSHA standards that cover
construction activities, onsite machiner
and equipment. selection and use of
personal protective equipment, har
of toxic and explosive materials, a-k
general environmental md safe’
such as walking-working surfa
and illumination. Moreover, the
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Federal RegIster I Vol. 54, No. I Monday. March 6, 1989 / Rules and Regulationg
In many In 5thVW!Q either
reflects OSHA teguladan_s, procedures
adopted by other federal agencIes (e.g..
GA), or practlom that are_____
used by thus. knawle eable In
hazardous was end emergency
response operations. To the extent that
mdadug standards, rules, or standard
0_ni pro adures are Incorporated
into this rule, no sigelficent thug In
the u ,iva.mmnt Is anticipated.
Potential Positive Environmental Effects
While OSMA does not anticipate any
, I , ,ISn.nt environmental effects as a
rssultofthlsstandaid, therafia
potanf.I for some banalb4al Impacts. In
generaL as the work pr.c4ce . and
procedure. .qaLaients of the erniad
reduce the of employee Injury.
an Indirect result should be. reduction
In the Hhalihucd of environmental
releases of hazardous materials.
(Virtually el i provisions of the standard
can be caiug,gL4 In this ma,in ,
bica-. , once they are 1np 6 mufltsd.
they will have a pOsitiv, h.Rna 00 , on
safety.) As these reMIL.....eute
also provide gs 4 .Iain . foe ru . ..
re me to situations erw.,w.tered In
enmgendes, they may help to reduce
the severity of suck emergencies.
Addithinal p*t,..tially positive Impacts
izlght be cat gi . .&-d as follows: ( 1 )
Direcibensfit, usa’ 4 -’.d with rednrad
hu Id i . .a In, or the severIty of. the
of hazardous materials, and (2)
Indirect b t emaciated with the
Improved flow oIInf rmation end
Inoreased worker awareness of
hazardous materials or with Improved
worker preparedness ( .lthgy fo normal
.411 5 Operations 0? far unexpected
ac ’ldsnts) . The following disajuien
ba.i _ fi ’ 1 I s umenui
Moaftorirag (h,L The requirements of
this provision will Inorease the amount
of monitoring for airborne hazardous
substances at uncontrolled hazardous
waste sites. In sums .es . hazardous
materials will be detected, and steps
will be tallen to mare quickly control the
release to the almosphem, thereby
providing an environmental benefit
handling diva is and cantainere (j). A
number of specific requirements of this
paragraph will result In potentially
positive environmental Impacts.
Relevant subsections Inchads: Inspecting
drums and can t a 4 i .rm making salvage
drums or absorbents available; Initiating
a spill ccntainm.nt progranu emptying
unsound drums and nntah . e ;
requiring gr d penetrating radon and
d nI . .iiitlng equipment. These are
briefi in the following
Inspection of dzums/ounsajnegr , be/bro
moving (A1(lXili). This section requires
that druma end containwe be Inspected
for their integrity prier to handling and
moving. Under airrent practices at
hazardous waste cleanup sites, drums
and containers are often havi41 1 4 with
medanl ad equipment (e.g.,a barrel
grapple one backhoe arm) before being
inspected, If unsound drums rupture or
leak, any solid con’amin ted by the
rupture or leek Is removed for disposal
upon completion of drum handling
operations. This provision will, through
worker awareness, Inereaee the
probability of averting ruptures and
leakage. In addition, any hazardous
materials In C IW IUrU that “t be
moved without ruyu .ri . .g will have to be
transferred to s.f. amer . (as
required In paragraph W(lXbcfl. with
obvious positive environmental eff.ct 1
These piu...dum . wIll reduce the
volume of ntanMatad soil n.qni’thg
dispose! end will also lower the
possibility that ‘ -“chote or runoff will
carry contaminants offslte. This
requirement does not have an Impact on
emergency response a’ilons the
routines ousIM .d are already . .‘ 1 -’d
Avnila ,iijfyofgof,og. drma./
absorbent, 1J(vii t This prevision
specifies that salvage drum . or..
cmtaha. 5 as well as s . .Ikble a’. . .&
of proper absorbent be kept .v.ilail—
for use In areas where pille)—l’ or
O . 1 s
will result In hioruased availability of
salvage drums and spill absorbents at
uncontrolled hazardous waste sites and
In amargen y response situations where
spills are L. ...L thereby tuihubig the
envIr on,al ‘ - “ “ ‘q ” c-a related to
spills dk&n Inus matmials. In those
instance. whom — —
abarbont . would have been Inadequate
without this requirement, there is.
pet . .ntlal benefit to the environment.
Impfr..iant spill runh inm,.,t
program UN1KviU L The purpose of this
provislonis to develop. programtobe
Implaun .nled. In the event of a major
spill, that would contain and Isolate
hazardous materials being tranthrred
Into contMn s and drums. To the extent
that this pw Is hnpIa .nanted , there
will be a potential for reducing the
negative environmental ff”ct . that
oc us result of spills, leakage. etc.
This raquIi . . . .ent will reduce the
enviiin tal Impact of potential spills
at cleanup alias.
Empty unsound dzmo/consathers
(f)(1)(ix). Unsound con ha,, often
rupture during hand g operations . This
provision requires that drums and
containaus that ‘ nn t be moved
without spillage, leakage, or rupture
emptied Into a sound Coflinin.,.
requirement will reduce the Incidenc
drum and contahw, rupture and will
provide conconutent environmental
benefits.
U .. of a ground penetrating iystez
estimat, depth and location of
aontniner , (Q(2Nx). At present. wheE
preliminary InvestIgations at hazarth
waste sites Indicate that buried drim
or caatafn. ,s may be present. grounc
penetrating systems are frequently u
to determine the depth and location
the dr The requlr. ...ents of this
provision will very Wcely cause an
Inoreas. In the uss of these systems.
thereby re t ”clng the . . . h 1 of
Instance. in which burled container,
would go undetActid or where
undetected ‘ ‘s would be
a iI ta1Iy 111 ,I..d during excavat
activities. Where it applies. the
requ* en will help pr. t accide
rup us and spills, ls v the
of i dlal an
— the site environment.
ik Th to dean and
dwL _ J _ ,.J...te equipment. personae
and pir. . . .al prot ti e . iI ,- -nt
th m1 5 Uan of bmardans
svb.t.1Lft , ciftite, thumb, benefltth
the suu ,—-- HI15 . . L------— ’ It will
ailminat . or . ...L.L..L _
of paru I DI _ t . h.tiøn is
already standard p —otki , at most
da. 1 . .up sites.
Infonu Conir ., . iiuv OIR Iw
H ... k (bff1j(Ir, Under this provisi
contractors are to be L.f. .ad of an,
“fire, explosion, heelth or other safer
bawds” that are pm.. iL By mi . . .
that contractme know the location m
nature of sit. hazards, this re . L . . . .d
will reduce the po . Hty that
contractor activities will result In
Inadvertent r esis or spills of
hazardous materials.
Gather Injbmiatioa Before Sit. En.
(c)(4,L “ng the various requfreurer
for site evaluation are those for
Information to be gathered regarding
(a) pathways for hazardous substanc
dIspersion, and (b) status and capabi
of emergency response ‘ v - These
procedural requirements will result I x
Inmoased ability to predict and preve
movement offstte of hazardous
materials, will mitigate emergency
situation, quickly and effectively. an ’
will reduce the possibility or seventy
contanth nt rIese . As the
reqih .wents of the section mirror
. . , , n.4 pra fras , inipH... e will be
with little difficulty.
Provide CV 01 *., IVuinfrig (.1. The
tr .hth g requirement will assure that
-------
9314
Federal Register / Vol. 54. No. 42 / Monday. March 6. 1989 / Rules and Regulations
activities will be carried out by qualified
personneL with the knowledge and
ability to fulfill their job functions in a
safe and responsible manner. To the
extent that this occurs, there will be a
potential benefit to the environment (in
emergency-response situations, similar
benefits accrue from emergency
response training and RCRA-regulated
facility employee training.) For example.
worker training will result in a more
careful handling of materials
accompanied by a reduction In the
potential for inadvertent spills, improper
disposal. etc. In emergency situations
this train ng will assure a more efficient
and effective cleanup of hazardous
materials or a quicker response to avert
further hazardous material releases.
Inforrnct.onol Programs (0. These
provisions Include requirements for a
site safety and health plan. pre-eatry
briefings, and site inspections. These
requirements will not directly affect the
existing esvironnient their purpose Is to
provide workers with the Info r mation
necessary to carry out their activities
safely. To the extent that this occurs.
there will be a potential benefit to the
environment For example,
implementing comprehensive site plans
will reduce the Incidence of accident
releases of hazardous materials.
Similarly, requiring pre-entry briefings
will reduce the likelihood of employees
unknowingly encountering contaminants
or allowing their Improper release or
disposaL
Emergency Response Plan (1) ond(, j
The development and implementation of
a response plan for on-site and off-site
emergencies will provide for greater
worker preparedness. In emergencies.
workers will be able to respond more
quickly and effectively, thereby
benefiting the environment
Potentially Negative Impacts
In some situations, there may be a
potential tot negative effects on the
environment as a result of the standard.
Any potential negative impacts.
however, are not expected to be
significant To illustrate this, negative
Impacts may occur if there is an
increase in the time required to
implement specific cleanup and spill
response activities, or to Implement safe
work practices or procedures required
by the standard. Any such effects ate
likely to be negligible, however since
response teams already have
established operating procedures similar
to those In OSHA’. standard.
Another potential negative impact
may result from the requirement that
salvage drums and absorbent, be
readily available. This may increase the
number of repacked hazardous waste
drums and the amount of spent
absorbent used. which could add to the
amount of material that would require
safe disposal. Similarly, the
requirements for implementation of
proper decontamination procedures for
all equipment, personal protective gear,
and personnel at hazardous waste
emergencies. cleanup sites, and RCRA
sites may result in an increase in the
frequency and use of decontamInation
materials. This, in turn, could generate a
larger volume of spent decontamination
fluids which would then require proper
handling and disposal. Again, any such
impact should be negligible since.
decontamination is largely standard
procedure for most hazardous waite
operations. A possible exception maybe
during activities that take place in the
early stages of site evaluation before
cleanup, or at spill response. where
decontamination procedures are not yet
standardized.
Coadusion
To the extent that the work practices
and procedures are implemented.
increased worker awareness and
preparedness will result ins safer and
more healthful work environment, which
may indirectly benefit the environment.
Any negative impacts that may occur as
a result of the implan antaUon of these
work practices or procedures are
expected to be negligible. Eased on this
asses nent and the Information
presented earlier In the preamble.
OSHA concludes that no significant
environmental changes are anticipated
as a result of the standard.
IV. InternatIonal Trade
OSHA ha. evaluated the potential
impact that this final standard would
have upon international trade. OSHA
has determined that the final standard
would have a n,inimal potential Impact
upon the prices of products. so that
there would be no effective change in
the level of exported or imparted
products,
V.0MB Approval Under the Psperwork
Reductloi Act
This section contaIns a collection of
information pertaining to the
preparation of a written safety and
health plan site characterization and
analysis, site control, training. medical
surveillance, emergency controls, work
prachr.s, PPE. monitoring, informational
programs. handling drums and
containers. decontamination, emergency
response planning, and emergency
response drills. 0MB ha. reviewed
these collections and has approved them
under approval number 1218-0139.
VI. Public Reporting Burden
Public reporting burden for the
collection of information identified in
paragraph IV above is estimated to
average 3.7 hours per response.
including the time for reviewing
instruction, searching existing data
sources, gathering and maintaining the
data needed, and completing end
reviewing the collection of information,
Send comments regarding this burden
estimate or any other suggestions for
reducing this burden to the Director.
Directorate of Safety Standards
Programs. OSHA Room N-3605 U.S.
Department of Labor, Washington. DC
20210; and to the Office of Information
and Regulatory Affairs. Office of
Mana3ement and Budget, Washington,
DC 20503.
V I I. State Plan States
This Federal Register document
amends an interim final rule (section
1910.120. “Hazardous Waste Operations
and Emergency Response”) in Subpart H
of 29 CFR Part 1910, OSHA’s general
industry standards on hazardous
materials, The 25 states with their own
OSIIA approved occupational safety
and health plans must develop a
comparable standard applicable to both,
the private and public (state and local
government employees) sectors withb
six months of the publication date of
this permanent final rule or show OSHA
why there is no need for action, e.g.,
because an existing state standard
coveting this area is already “at least as
effective” as the new Federal standard.
These states are Alaska. Arizona.
California (for state and local
government employees only).
Connecticut (for state and local
government employees only), Hawaii.
Indiana. Iowa. Kentucky. Maryland.
Michigan. Minnesota. Nevada, New
Mexico. New York (lot state and local
government employees only), North
Carolina. Oregon. Puerto Rico. South
Carolina, Tennessee, Utah, Vermont.
Virginia, Virgin Islands, Washington.
and Wyoming. After the effective date
of this final rule, until such time as a
state standard is promulgated. Federal
OSHA will provide interim enforcement
assistance, as appropriate, in these
states.
VIII. Federal and State Coverage of the
Public Sector and Volunteers
Federal OSHA is specifically
precluded by section 3(5) of the
Occupational Safety and Health Act
from covering employees of any State or
politicaL subdivision thereof. However,
States that elect to have their owti
occupational safety and health program
-------
I. Vet , No. - 1 M .d. 3 . Merdi S. f ss
under a plan a,,. T .d and eroniturud
1 by OSHA , w4a *1 of the
ate required to - -- “ their coverage to
these employees (gas esGikin VU of this
pr. ” M . for a list of these states). Thus.
a State hwrdous waste operations
s•. .wlm,d thetis either Identical tø or at
least u effective as this Federal OSHA
sta ,S.,d will apply to public sector u
well as private sector employees in
these States. Public sector employees In
State. without State plans will be
protected from expoaure to hazardous
waste under lIt!. L . ec* n 120) of the
Seperfund a”I ’ te and
Reauthorinadon Act of 1999 (SARA).
administered by the U.S. Environmental
Protection Agency (VA). This section
requl.wa A to .nlg1te. wIthin 90
days of th. promulgation dat. of this
Federal OSHA s-” -’d , an
stai t.cd that applies to employees of
State and local governments In sack
Stats , âLith does not have an OSHA.
a, 1 4 Stats plan .
OSHA’. h __ .J waste uperudons
s”d and the ld I or equivalent
standards whick w ill is . - rtsd by
States with OSI1A, 1 .,...d State plans
apply under certain distancss to
volunteer flrfl 0 h’— . and other
volunteers eng.ged In emergency
rsapcou operations or hazardous waste
uparudono , dthle the i’ d the..
sI..wI. . . (ass paragraphs ( a) ( ) and (2)
of this standard). In
fir. and other na q meporun
services are provided yv k. L
‘ ‘mpunI - In esme ‘ — , these
compatiles are es as
j pAi . private ucor entities. In
others, they ate “ “sd a
of Stats c i local g.vst (ass 20
1WU ’s to consider in
L- gwhsthsrcrnotan.t lty lsa
pshlls A yn1m ,t s, , ,. .LL 4 for
a public or private . uUty In a State with
an 0901A 1 . d State plan ernst be
an employs. Stats law
in ciderto be o .. d by the State’s
hazardous waste opamtions and
emergency lesponee standard—for
example. because of an employer-
employs, relationship or because of
pay, rethomsot b””eflts . health
ww $s , workers’
nmp . .sdon benefits, etc. This
de—-- don is .by each State as
part of Its standards , . . .— i1pdon
pro aa. In a State without an OSHA.
ap,. . .d Stat. plan, a private entity fire
comp y with one or more paid
employees would be c . ,. d 1. this
Federal standard (2B ( R 1975.4).
I X. F.dmoll
• This final regulation has been
reviewed In accordance with Exeeutive
Oidar i2 U (52 FR 41995: October 30.
lear) regarding Federalism. -.-‘1. .
Order 1212 requires that agenuiss, to
the extent possible. refrain from limiting
state policy options. consult with states
prior to Lsfrh g any actions that would
restiict state policy options. and take
such actions only when there Is cleat
constitui 4 m ..I authority and the
presence of a problem of national scope .
The Executive Order provides for
preemption of state law onlyif there Is a
clear Congressional intent for the
Agency to do so. Any such p 1 pUon
Is to b.l lmitedto the extsntposs lb ls.
During the development of this rule,
OSHA has, to the extent por4h 1 ,
refrained from limiting state polfly
options by developing, rule that
permits flexibility on the part of the
States through the use of performance
language. We haveaiso c ” ”ulted with
the States. In particular those stats.
with p v.d state OSHA pl iu . , Awing
the publ Ichear ln g eand — mntpwiod
called for in the notice of prepoud
1 ii1. . . . 1th 19 for this rule. WI will
continue to work with the States th t
have state 0 _ -• i a° .l safety and
health plans imAw rHmi 19
of the OSHA Act to those
atates to develop their own police , to
achieve . .,graer objectives and
condone to w with aporondata state
as thsy pr. th stats
standards
This reI.m.lb Is Jk cLad b’y
C . muI the Iu
m nshn nt . and Rsastho, domAd
of 1990 (SARA). The Cti’ ti ’ ”
authority and t ’-” gr L6. .I fci
Federal ac”’- ’ In the ama of wwL.r
protsclim standards for - i nyeu
In h.rduas waste operations
Is - ‘-‘-I-tad de..1, In eicIIsllI 120 c i
SARA. C n 5 .sa t . Lw has M ed
the protection of employees gsd in
hazardous wast, operations and
emergency , sjoau as a problem of
I scope th,utdi the euac ent of
SectIon 1101 the Oucopa’ 4 ’ Safety
and Health Act (OSH Act), permits any
state to develop Its own Independent
state oosvpaH1 I safety and health
p . Any state may develop and
submit to OSHA. for . ...l and use, a
stats o .cepaHaiutal safety and health
program that provides. among other
thing., worl.sr protection ‘at least u
effective as” that protection provided
tinder the Federal program.
With respect to Section 4 of Executive
Order malL Section 18 of the 0511 AC
also expresses Congress’ clear Intent to
preempt state laws relating to issues
with respect to which Federal OSHA
has promulgated oni upational safety or
health standards. Under the 0511 Act, a
state can avoid p’.....,.,uon only If It
submits, and obtains Feds,.] OSHA
ay uuwul of. a plan for the developme
of such standards and their enf & . .
as , , , .a.f4m ,. above, O ai 1 ..th.na1
safety and health standards develops
by such ap d Plan-States must.
•“ig other thh g. , be as least u
effective In providing safe and health:
employment and pIa . . , of employmei
as the Federal standards.
OSHA has used its regulatory
preemptionof State law to the minim ’
level ne’ nry to achieve the objecli
of the 0511 Act end uctL’ ’ 120 of
SARA.
Section 120 of SARA. under paragri
0), requires that the US. Eavlronmen
Protection Agency (VA) provide thai
state and local govermuont worker.
are not c d by the protections of
a,quvu. 4 OSHA state plans with
protemion that is Ijlantii,nI to that
providad — I — the Federal OSHA
standards. Noo.etate and local
uw— t ampl—, .sa would be
regulated by tha Federal OSHA
standard. State and Local
, rO’ 1 ’ -s , employed In 20 non.0951A
state plan s’— e . would net normaU
by stdards ,.—Jg.ted
muIPuJ . .lO99lAci st.
OSHA l”4 OStIA has w ’
with WAIn d LJp-- - ’tdthIs
finalvoleteusurs thatths p . ’ ’
pruvlded to afl.takand foas1
go mpLi,eisAu 1 .t t
with that. 1 ... ,Ided by.lhe sl G
standard and th.OSH Ad. A ut
,ai thwItyhaIhe 031-
state plan uta will mddrom th
acft with reaped to worker
protection p” that have f..d L
implications In their r ’ t M
This final rule Is w .r1t1 so that
employees engaged In hazardous wr
operations and related emergency
response operations In , 5tate.
in g those stats and local
government employees In states
regulated by A. would be protecti
by general, performance oriented
standards. To the — ‘ that there a
state er regional pr”I-’lties causer
the types of baa..duus waste
operations. in-- -’ 11 ”g the types of
related emergency response provlile
states with O 0 Cnp.•k l.I safety and
health plans a 1 . .d by OSHA un
section 18 of the 0311 Act would be
to develop their own state stan’ 4 d
address any spedal problems. This
would assure the compatibility of ii
or local emergency response plans
developed Independently by state o
local emergency pI-”g committe
under This III of SARA with Federt
-------
9316
worker protection standards Issued by
OSHA and EPA.
And, under the OSH Act, If a state
devilops its own OSHA approved state
program, It could make additional
requirements In Its standard,. States
that will be covered by regulations
Issued by EPA under paragraph 126( 1) of
SARA will be provided the same option.
Moreover, the performance nature of
thi, final rule, of and by Itself allows for
flexibility by states and owners or
operators of hazardous wastes sites or
providers of emergency response to
provide as much safety as possible using
varying methods consonant with the
conditions In each state.
In summary, there Is a clear national
problem, Identified by Congress, related
to occupationaJ safety and health In
hazardous waste operations and related
emergency response. While the
individual states, If all acted
collectively, might be able to deal with
the safety problems Involved, most have
not elected to do so In the seventeen
years since the enac nent of the OSH
Act. Those states which have elected to
participate under section 18 of the OSH
Act, would not be preempted by this
final regulation and would be able to
address special, local conditions within
the framework provided by this
performance oriented standard while
ensuring that their standards are at Least
as effective as the Federal standard.
State comments were invited on the
proposal and those that were submitted
to the record were fully considered prior
to promulgation of this Final Rule.
The agency certifies that this
document has been assessed In light of
the principles, criteria, and requirements
stated in sections 2 through 5 of
Executive Order 12821. There are no
provisions of this rulemaking that are
inconsistent with the principles, criteria.
and requiremen stated In sections 2
through 5 of Executive Order 12821.
States which have approved state
occupational safety and health plans
may Incur additional costs associated
with standards development and
enforcement as a result of this
rulemaking. Funding for thea. approved
state plan programs is available from
OSHA under section 18 of the OSH Act.
This rulemaking would not change the
State’s ability to discharge traditional
State governmental functions or other
aspects of State sovereignty.
An outline of 1910.120 Is Included
for the cpnvenience of the reader u
follows:,
519*13) Hazardous waste opemtiojzs and
emergency response.
(a) Scope, application, and definitions.
(1) Scope.
(2) Application,
(3) DefinItions,
(b) Safety and health program.
(1) Cme
(2) OrganIzational structure chapter of the
site program,
(3) Comprehensive workplan chapter of
the site program,
(4) Site-specific safety and health plan.
(I) GeneraL
(ii) Elements.
(ill) Preenizy briefing.
(iv) Effectiveness of site safety and
health plan.
(c) Site characterization and analysis.
(1) Gms
(2) Preliminary evaluation.
(3) Hazard Identification.
(4) RequIred information,
(5) Personal protective equipment,
(8) MonitorIng.
(7) Risk Identification.
(8) Employee notification.
(d l Site control.
(1) GeneraL
(2) Site control program,
(3) Elements of the site control program.
(a) Training.
(1) GeneraL
(2) Elements to be cuve d ,
(3) Frequency of fr.Ini.ig
(4) Management and supervisor SIIthrig .
(5) Quahflcatlon, for trainers,
(6) TraIning certification,
(7) Emergency response,
(8) Refresher tr.ining
(93 Equivalent tr inhig .
(1) Medical survellI fw-e
(2) Employees covered,
(3) PTequency of medical “ tIoas
and consultation,.
—(4) Content of medical mthafion_s and
consultation,,
(5) Ev .MtIon by a physician and costs.
(6) Information provided to the physician.
(7) Physician’s written opinion.
(8) Recordkesping,
(g) Engineering controls, work practices, and
personal protective equipment for employ.
as protection.
(1) Euglneering control, work practices
and PPE for subsf ”ce, regulated In
Subparts C and
(2) EngIi erft g controls, work practices,
and PPE for substance, not regulated in
Subparts C and 2.
(3) Personal protective equipment selec-
tion,
(4) Totaily.encap ,ulatigig d .niical protec-
tive suits.
(5) Personal protective equipment (PPE)
program,
(h) Monitoring.
(1) GeneraL
(2) Initial entry.
(3) PeriodIc monitoring.
(4) MonItoring of high-risk employee,.
(I) Informational program,.
(j) Handling drums and containers.
(1) GeneraL
(2) OpenIng drums and container,,
(3) Material handling equipment.
(4) RadIoactive wastes.
(5) Shock sensitive waste,,
(6) Laboratory waste packs.
(7) Sampling of drum and container con-
tents,
(8) Shipping and transport.
(9) Tank and vault procedures,
(k) Decontamination,
(1) General.
(2) DecontaminatIon procedure,.
(3) Location.
(4) Equipment and solvents,
(5) Personal protective clothing and equip-
ment.
(6) Unauthorized employee,,.
(7) Commercial laundries or cleaning es-
tablishments,
(8) Shower, and change rooms.
(I) Emergency response by employee, at un-
controlled hazardou, waste sites.
(1 Emergency response plan.
(2) Elements of an emergency response
plan.
(3) Procedures for handling emergency in-
cidents,
(m) Illumination.
(ii) Sanlratijit at temporary workplaces,
(1) Potable water.
(2) Nonpotable water.
(3) Toilets facilities,
(4) Food handling.
(5) Temporary sleeping quarter..
(6) Washing facilities.
(7) Showers and change room,,
(0) New technology programs..
(p) Certain Operations Conducted Under the
Resource Conservation and Recovery Act
of 1976 (RCRA).
(1) Safety and health program.
(2) Hazard communication program.
(3) MedIcal surveIllance program,
(4) Decontamination program.
(5) New technology program,
(6) Material handling program,
(7) TraIning progr.m,
(I) New employees.
(i i) Current employees.
- ( lii) Trainer..
(8) Emergency response program,
(ii Emergency response plan,
(l J Elements of an emergency response
plan.
(iii) Training.
(iv) Procedure, for handling emergency
Incidents,
(q) Emergency response to hazardous sub-
stance releases by employees not previ-
ously covered,
(1) Emergency response plan,
(2) Elements of an emergency response
plan. -
(3) Procedure, for h niIImg emsrgeacy ‘
sponse.
Federal Register / Vol. 54. No. 42 / Monday, March 6. 1989 / Rules and Regulations
Table of Contents
-------
Y I i j V . 6 -No..42J Mo dsy. Mará 8, / Rote, arid Rsgoistfsos
(s11 -’- t
(13. leveL
heeL
t l
- ..se M-
l$F• — -- lF
($) Ms a1 .uSM and — ‘-
(153 ‘ -‘ 1 1I d vS Ijk
(113 P — ,— uu . p-’ —
S 01—’— lt __ —
A,, — A- F.. L.U1v .
*—G1t , j...,SM
sat P.—’- G
A --
—
—
. . msa f .-- ‘ , end armbSMbl ,
IIqU*dsI t doen mitatale,
MaSMals
5n $15L
iUR — MsbSen d
Pwa e A U of
end
C l i A,.,NW. . W ten.
flC PL . ....M b 2dth,
S4 ..ti..A P’— aid
L. , 1 .th .LUas Ad of Utu IJ
(Pub. L U-41t IStRof . 0150 en
emendsdbyPth.L 01S . . sietlen
1D1(fIi101SIL2350 -l Ot50U.S.C.550
note), . .-“. ..I $ef the
Oouupatend Sofety SM IL ,- b Act of
1010 (21 U.S.C 550. em. u thas 4 of the
A aIstr ..thePfli J. .. Act (5 U.S.C.
5533. RPmt01t1 aid Seoretary of
Libsie O p- u PR 10121). It Is
propiSMt . A15 RPart1glOby
reviling I 1010.120. M.ardoua W.i
Oparetle,. SMl y Re sp@ens.aa
set th h li
Sigaudit W-ddqt... - DC thu 2 5th d.y of
?.bmuy ll.
lohe A. V
PART l0t0—ODcIJPAT 1Of3*L SAPRIT
AND HEALtH STANDARDS
1. Th&aetholily dh*L f Subpart H
of Pert 1010 Is —-dby.sMi gthi
fcUowthg paasgrupin
AuIheuIIpr
poie . toSM wadar th. - - -ty
of . —X _ of
and R— - ’-- AdofaNsa
(a U.S.C. 555 lotS). .aIs ...ø SMaof
CccvpatSM SS tgSM Hid*hAmofII?0
U25 U.S.C. S OR). 4 of the
h!I4Mt,l ,. fl Mk.!S Act(5 U . S.C. 355 ) .
25 R Part 1511 s .d Seemlery of LshWs
Is (41P5 W25) .
2. SUtton 2010.12001 ThI, a of the
Cods dPedSM Ragalatlon. Is revtSM
to sdufeUoerw
51*10.150 Iheaat :; - -
W & 5 si
(a)S qp 1 .-’ --i end
deflnI —(1) This seMen
cu!em the f iswlng - n
the emplepor sea - - the
operation d act b.w le —
expo.w or r .ib1e r iu3Pp
to iifety 01
( j) r .—op spe.s1Is—’s 1 .u4W a
a..—- bod whethor I ,
ltat0. 1andorsthto .sh*ib .J....e
uh4&. _ , t ao—’ t.d ar
bSMs wUt
(lnclnhIiI it but not limited to. he A
N. I—’1ty IAd(NPL ,t.S.
— I ,
ii i . A SM .I t tlsse
of j , .-. . li
01
&tI.——M ‘— LT
(U) S us s w tng
t.Ih...4byth.
Rasuare.0 _ Jl.nSML . . ,
Act of A)as (42
U.S.C .eSS1d k
( 011 Ve e.yd opsudo at
sties tinr stats, best
or other bethee so
uncaUtoUed lite
(Iv) OpeSMarar invoking
wutes that era ._ ...akui _ d at *ze. .J .
storage. SM disposal C l ) f...flIsI.... .
puzuaantto Raft or by SMir
egreemunt with U.S&P.A. to Inij.lsmit
R RA regalatloem and
(v) Emergeircyrssposes sp .1Ioes for
release. .1. or sabutsattal este 01
r.I.a e , h.na .’L . . .
without regard to the location of the
hexart
(2) (1) Afl requirement, of
Part1910indP urt1 offlI I ,2 Iafthe
Cods of Federal P’ ’ ’ ” apply
_____ UI,
pursuant to thub s to
wuwsid r.op re
op M wbst i4 by thIs
tvrtt irnot. ltt is a sthct or
ovidap , the puiui. W .w*&iIIw Of
employs. safety end ‘ - - tha i apply
wlth ut regerd to 25 & 1$2&5(CK1).
(I I ) blemadoen dame-op
opera . ftLii. e . 01
paregrupho (aXIXI) da (aX1 3Ii) of
this r- -- - r 1 i
of this - -- . .uin
para ,r.phe $ SM (ii
(Ill) O.I wlthto ‘ C UPS 01
paragraph (a l lv) of lisa eer*km mast
— ‘p alp with the of
paragraph (pl of lids
of ha. mute who s the.. j**i
hsst UQdupeSMheaiilr—’ ° 1
dh—i-. . . . . whobuva
t.
_____ - -
oL”- hoth
we.SMypA rk EpK53d
is.r a _ a _ -
_ f 5IIL te t h n t
M e sa ud ii. id threat .
-- ___
the . . 1 ..k -
$ J.qr-I
for r __ deru I t.
reIu of, hazardous evbs’-
U IaM101ald -
only o—’p,w ti.’
(3)
me.a , _ d— -- 9 — . Jl
Into waik 0 w..,itoth O S
each lsyss of the weak pospts
d— ”1sd to hi ob.vsd byst lamet
one ohar employs. to the math group .
The sidth.b i d
provide rapid uliulmii s to
In th. event of so es ’cy .
‘Vlesm.op opar’ofisa means an
operates wbma menrdoea
era k. .,1— ..hd .
uu altz d. stabll d. cleeradop, orin
any other - .-- prosemed or ’
with the ultimate gad of makIng the site
safer for people-or the y&wuw’t .
‘Vecentaminoiloa” means the
removal of huwdmrs substances fram
employees and their &,ilp!n t to th
extent necessary to preclude tbs
occurrence of foreseeable adverse
health affects.
Smeanyrng o or endh*q
Co eQ ’ CyeflCltloOflD ISI iS 15011
by employees hem outsi’ e the
-------
______ t 5 lfla.40 I Msndi ?Majà6 11091 fl)e(and à i1lQaA. .
• °‘ialMasenn.rbyothsr
w PI ’ local , depsIluleulL etc.) to
• an4 ’...es which arts likely
tONSth, is in e.atsoUed relo — da
hui. . uba ’ , aespouse. to
4WseIui of hazardous
. . ,itmw,e whms tbs substance can bo
sheathed , nsutreI d, or otherwise
contmlladatth.thneeirelsss.by
employees in the sd*ats thesis
area, or by - ‘t personnel at.
not csusldemdto be am _ azay
within th. scope of this
standard. Reepoosas to releases of
bawdm*s . obs ” . arbor . there Is no
poteeliel safety or health hazard ( La . ,
fire, eqlculon , cr’ 4 ’ azPOIUN )
are not cosuidored to be emergeecy
7 Iiiy”mwi. (A) any b ildhuq.
. ttuUur., isutuIla”on. pip.
orp ’ ’ 41 ’ gsnyp*p.in t oa
se orpubliclyownedtmatmant
wvih4 welL pit. poud , lagosu,
o ’ ” ’ . ditch. storage . c -’-’--e .
motor ToUlug stock, aituaft
or ( B)eng sits or tea where.
hazardous substance has been
deposited. stored , disposed oL or placed.
or otherwise can. to be located; but
does not ts 4 . any onsnn product
In nosor any water -borne
a7L 4 I7 . E&r ’Ii—4
d Ws.s. : ited by lbs
al.I1’-lee . bo me - bp.durm
w 4i om1sc Icr.
— Jeakear epMinc(budoua
-- - r p - dma
a m àas the aub. ” The tm
n.-l p p L _ ri4 41 to ruae
or - ‘r’ :: dbu .. ..
r’è -’- — tee the pmpoae sI .vJ
of the A
HA (AT teem Is net a fire nor
Is a typical firs bepid.. HA IPIT
teu . A HA AT teem , however. may
bee separate p”-’ of a fir.
___or the ____
llmeaulous subrtiina ‘ uw any
ibatnoos “ -Ign -tod or listed midst
perajsphs(A) thMegh )OIthIS
d.fin1tio , arrpo to which results or
m syxss nltinidv s h s eaff.ø vnth.
health or safety .f employsear
(A) Any substance defined midst
seefinut 101414) of .A:
(B) Any biological agent arid other
dlseu..caualug agent u defined In
sectIon 101(33) of C CA
(C) Any substanc, listed by the U .S.
Department of Transportation as
hazardous materials noder 40 CFR
172.101 and . ppn i.m and
( D3 Hazardous waste as herein
1I . .Jia wesse” means— -
(A) A wears orcombinotlon of wastes
udefl nedtn4O R35L3 ,or
(B) Those substance. defined as
hazardous waatao to lIaR I I.&
1 dom waste operation” means
any operation conducted withiut the
scope of this standard.
lforaadous wast site” or ‘SIt .”
means any facility or location within the
scope of this sra .wia,d at which
hazardous waste operations take place.
Ii with hazard” means a , th _ .ui1r4
arbiter. of chemmonirer a pathogen for
which there Is statistically ,Ig’ cant
e*l ce based on at lout one study
conducted In accordanc. with
established sd Uth 1p1h that
mite or cL . .ctc health ff cM may
omar In . rpceed employees. The term
“health hazard’ lnd ” ’
which a ecar . mcLg tmdb c i highly
tonic agents. . d ii1t’S •1-- .
hTltaats. GuftOi*105,
beptao”---’ - nepisotestim,
“ , agents which aetan the
bonatopoIsftc 1Lm nd which
______ Ion _ ge , ibis. eg.a,ee -J
membranes. It also atisu d i.
to temperature ariU --- Further
definition of the terms need above ma
be oandisAppAto33aR
‘WLIFar 7mmeifr S..guu
to I boris thm ’ ” an . ‘“p’
aqynientael.hemstht;
to lb’s erweuld - e
theveisibloor dsiay$ .,d s health
erarsuld isiàu Lie within
ladiulduels ability toae ep from a
da ::= - th
su- by
L LIJi aaiospbare i.., l Iag
peots onmt be provided.
ltuzlsteis the
p.—’-goof pIeby- “—lilies
then 5 — — __
‘ to auoaw . LimIt” ‘ ‘ ‘
the h .kII4fQ or al
p 1 th1 esp e Ibsit specified In
20 RPert 1110. Subparts C and L
the limits published In
1 IO11i Recommendatlone for
Omepa”'— ’ Health Standards” dated
2100 Inomp . ,.J.4 by 5 J ics. or If
ama Is upmifl -d , the. oicpoaure limits
published In the standards specified by
the American Conference of
C5 ,. u uIt 5I laduitsia) Hygl” 1 ta In
their phba flcn “Threshold Limit
Values and BIdogl al Exposure ln& ’ a
5” dated 11 laoorp . .rsted by
“ t emergency repouwe’ means
that portion of an emergency response
performed after the Immediate threat of
a release baa been stabIl d or
sndsat d and c1aer-u ii
begun. If post emergenc
performed by an epleyus uwu
employee. who were put of the I.
emergency response, It Is canalde
bepartof the lnltlalrespanseand
past emergency response. Hawevi
group of an employers own empk
separate from the group providing
response. performs the cleanup
opc.*tlon. then the separate group
employees would be considered ti
performing post ..margency respor
and subject Is paragraph (g)(11) ol
“Quail/lad perwar” means a per
with . psciflc ts.4b,g knowledge a
£ . .vL Iasththe area for which th
parson ha. the respoosiblltlp and
authority to coritsoL
‘Sit. aajIny and health aupovvis
offlciaQ’wa.ns the individual locs
on a hazardous waste site who is
rsa .p.i.IhI . to the employer and ha
authority arid knowledge necassarl
lia . .” th. site safety and bealt
planand v Iy with
eppll.hl safety and health
‘ “ quantity qeaeaWW’mw
gatcr of hazardous wastes who
“ generates u ’
than 1.05 --- ’ (U01 i
ba.duua gasee inthatso
bl IftIIhWIfl.JhO7 ?ch, w.
miens an an — ‘,—‘-d
ot dma waste meaiseá eat
the “ audiifel,ofindiuiduaIs
tbsse -- ---bothRemis*.s
f c eudonpubZlc e.thalthoSs
mastad byfomar a-” 1 county
state landfills whom ilIsg.i or poor1
managed waste J IYU.al has taken
place. Other sites are found on priva
1 .. ..party , often b Liui ing to geusrat
or former generators of hazardous
waste. Examples of such sites Includ
but are riot limited to. surface
impagiphuti..its, dumps . and
tank or deem farms. Normal operatic
at TSD sites are not covered by this
definition.
(bI Sajkty and health pnigraai .
Nste te(b Selety end health prcgrme
deaslopud .ndI ’’d to mist othe
Fedsral, stats, or Isosi ,sgeIst*oss are
coceldsrsd sccsptabls In mmUng this
.liment If they seem’ ante modified
cover the topic. s., .J.. ,d In this psuegrapt
An additional an upstate safety sad heel
prosier Is cot ruqetred by this pitagriph.
(1) CeaeraL ( I) Employers shall
develop and Implement a written eaf ,
and health program for their ernp
Involved La hazardous waste opt
The pr . graa shall be duigos?
Identify, evaluate. and contra
and health hazards, and provk
-------
&d t 2a erf Yd 421 4 S I D _ L . -
( Ii)Ths w,Ii saMy sad health
shill lii . in
(A) Aam i —1 sirUcir
phi WhL L need not repeat the
etsadmel
vd aisqtdr 4 In pan sph
(bXlIftJtp) if this
(D Tha uifetyanèh ilth framing
(E7Ths - en1 survefihsace prvça
( fllhe . nqI,de standard i .thig
Pw w. for eaL.t,.md beehtin and
(C) Any a - 17 bM f 11 oe betw en
gensial pro im and site spedL
activ lites.
(IU) &In .rp ,Aj Sits
outed aL peses,s u_ or
during . .. ,J... _ w .psraitons shall
to
1_____t Wl ILI.Jdiflfl
pelt 1
(tvJ
An “pm who zetsi centeactor or
M wish In
hi u wasto á inform
those L uv aebicsotrsctors, or
thefr x ih if lbs itt.
pe. -der and any
or othsh a oflbe.bazurdmas waits
OPaMtt su ‘- d by
the 4thOSSIdIitIfiSd
In the e fa
(v1P ea j7g5j1fjy Tha wsiien
__ be mad.
a’aflabbtsy ‘-- or
who wiUb. Inwjbe4 with — -
west. epunUa In sapIoy.s to
- mplopa. r lI In
OSifA p”-----il and top—--- ’ it
othP.dsiaLstit., — lead se
with rugth y a iy over the sits.
(Z) mtUor i fJtrI . 1 .&. pwf of
the ai pngzu . _ ) Th.
o rnkuUena1 ssu. ,a part of the
pmgr shaM astabllsh the sp.dflc
chain of ivii 4 a d speclfy the
overall lesps ffl if superviso, ,
and saploysu, It shaM at a
(A) A pass! SIp.ulao , who has the
xe.pmathflfty.ad authority to direct all
hazardous waste operations.
(I)Asit..afety and health supurviso,
who hu p ibwty and authority
tOd d plsurentth . eft . y
and health Iea and rif , co1np e
(C) All other persnnn..l needed for
hazardous ws e opemsions and
sad thefr —
functions end r 7 onsththdes.
(Dim. Ibma
respu tyo sad_____
(U) g _ L. _ f1e,ml sm 11 .t 111 shall
be rsv ewid updated as ea p-y
to reflect the current states of waste site
(33 Ccoçrobh’ evl part of
the site peegrrm. The en
workplan pert of the pr a shall
addrsa the hahn areA ob ecti, if the
site operations and lbs LiØ. and
resources required to reach thee. tasks
and oblectives.
(I) The cemprobsam, workplea shall
address anticipated clean-u_p activIties
as w.il as normal operating procsdorss
which need not repast the eapLyars
procedures available elsewhere.
(ii) The comprahaaslve wurkplan shall
define work tasks and oblacijues and
Identify the methods for sa mu pII.hIqg
those tasks and objective..
(iii) The “ mpr.hinewe worhplmi
shall estehlinh ParILluiieA requirements
for ImpIs v entiug the plan .
( Iv) The c ’q eh..na1v _ wml.jilan
shall provide fur tha t pl is H.iu of
the __________ ____
thin sr ic
(v)The ‘mp 1 J’.”.i, . , .—lvl i shill
provide for the Implementation of lb.
required ri .H .1
required In paragraph (1) of this :
(vi) The comprehensi vs workp!an
shall provide fur the 4 ipi a,itjIIa .e of
the medical smveiflance pr am.
deealbed Iapwgraph v i thin -
widen.
(4)
pJaQ pare’ of the prrpam .. Ø) GeneraL
The site — and health plea, which
safety and hlthhazsgds of each phase
of site ops ation and - ‘JIMis the
L1 ,qji ,,,5fl and pr’ i’- far
__ and
health plan, as a -“ shall address
efol!Ow lngr
(AAsaMyidhs a l t h jg ha
analysis for each site task and operation
foend In the workp3an.
(B) Employs. fre i h ,g assignments to
assure complIe with paragraph (a) of
des section.
(C) sonal pzota U equipment to
be used byemployeesforeach of the
site tasks sad operadens being
as requited by lbs personal
protecth,e equipment program In
paragraph (g)(5) of this section.
(D) Medical surve 1 llw. requirements
in accordance with the prugr.m In
paragraph ( I) of this section.
(B) Requascy and type, of air
monitorIng personnel monitoring and
envir ,=m sei pling technique. and
Iflsfrunzentatfon to be used. lncltidI tg
methods of main’- - and I h athon
of monitoring and , iu .. 1 i1h 5 eqit4pi.iuq
to be used.
c measures In
acesdanos with she site
In paragraph
(G) DecontamInation pruc.d.j
accord*n with paragraph (k) c
section.
(H) An smszgmu.. , reepense p1
meeting the requirements of par
(I) of this section for s .f. and efi
response, to smergenciss. mdix
necessary E and other equlpni
(I] Confined space entry proce
(J) A spill containment pr , r
meeting the requirement. of parr
(j) of this section,
(HI) Pie-entry bzieflng The ,lit
specific safety and health plan .1
provide for We-entry briefing, to
prior to Initiating any site activit
at such other times as necessary
ensure that employee. axe appth
thes rtasalatyandhitai lhp laaaz
this plan Is being followed. The
fnf -th’ ’ and data obtained fr
chmactertzatjon and analysis wc
required In paragraph (c of this i
shall be used to prepare and upd
site safety and h. Ith plan.
(Iv) Effectiveness of oft. safer.
health pAn. “ -p- - . - shell be
iu d by lbs sit. safety ano
supsevisor or. In lb. abss.ms oil
Indlv” ,t ath individual wt
knowledgeable In i— qi ttnnaL &
and L.ilth. t em Li . 1 d lb
emptoy as to
C t i._ of lhae ltesafgtya ia
health plan. Any d na4 In
‘-theitteaLty an
healthplsbeMbs by
(cJ Si t e th uti .. .’—’ . and
anoiysi,—(1) Gensif. l z
sites shall b. —ted In a .
with this paaau _ ..,h to ldaiitif 3
site hazards and to iM n .L .
appropsiato safety and health cix
procedures ns-d.â to protect eon
from the l’ fl-i homids.
(2) Pielimhany.enl A
prelu..”—’y of. sites
charactmlstios shill be p.d e
to site entry by a qualified psmor
ap 9 ate — --, -,.a protection
methods hIm to sate oniry. ‘ —‘ ‘
after initial site entry, a mare dots
evaluation of the sites spaciflo
characterlstma shall be pirfurmec
qualified person In order to forth.
identify cds site hazards and
further aid In the selection of the
appropriate . u 1alg controls.
personal pc..is . equipment for
tasks to be parf il
(3) H idid.nification. All
suupected uiMtIons that may w’
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Mai t *ojw.r VoL 54. No 42/ Monday, March 8, 1989 1 Rules and Regulations
teh I&Utm ori absorption bawd.
that are Immediately dangerous to Life or
health (IDLH), or other conditions that
ma canes death on serious harm. shall
be R 4 Aii,l 1 the preliminary
•i rv ,y. and incited A .thi the
detailed mples of such
bawd but a x. use limited to,
I .IIOfld apace envy . potanH Uy
explosive or situations,
vtalbl. vapor clouds , or ereu wheie
biological Indicators auth as dead
or vegetation axe located.
(4) Required thfrreiatiwr. The
following Information to the
availabl, shall be obtained by the
employer prior to allowing employees to
enter a site:
(I) Location and a 1 p.L_ te s ea of
the site.
(U) Desoniptico of the response
activity andjor the job task to be
iion of the p’- employee
activity. ______ ______
(lv) Sit. topoçapby and vr hl1Ity
byarrandroads.
( w) Safety end health hazards
tpoGtad at the site.
(vlJ.Pathwaye for hazardous
substance_aperufen.
( vii) Present status and capsb *’. , of
. waxgea response eme that woold
provide assistance to hazardous waste
cleae-rrpdt. employees at the time of
an
MI) m and
health bezerd volved orexpocted at
the sit. and their aftL _ i.and —
protoaM —
shell be provided and used during ImH.I
site entey In accordance with the
(i}Bwsd upon the rssvlte of the
preliminary sit e,.M on . em
of PVS shali be mIr and used JL .1L . g
initial alt. antoy which will provide
plc isi toe level of p”aw . below
permissible expow . Umito and
p.tI .1I.hed exposure levels known or
suspected hazardous substances and
health bawd .. end which will provide
— against other known and
suspected bawd. identified during the
preliminary site evaluation. If ther. Is no
p -’—”4e Limit or published
e’cpows Isve the employer may use
other publ’ 1 ’ed studies and Information
as a guIde to ayp.UjJiIate pemunel
protective equipment.
(U) If posItIve-pressure self-contained
breathing apparatus Is not used u part
of the emery ensemble. and If respiratory
protection is warranted by the potential
hazards Identified during the
prelImli* y sit. evsluatlon ,au escape
ulf.contalnad breathing apperaurs of at
least five mL ...t&’ S duration shall be
carried by employees during Initial site
enity.
( Iii ) If the preliminary site evaluation
does not produce sufficient information
to identify the hazards or suipected
hazards of the site, an ens.iithi .
providing protection equivalent to Level
8 PPE shall be provided as
protamion. and direct reading___
Inmvments shall be used as . y wp!l**
for Identifying WU! condidone. (See
Appendix B for a dasmiption of Level B
hazards and th. recommendations for
Level B protective equipment.)
(lv) Once the hazard. of the site have
been fd.n4Ced. the WE
shall be selected and used in
accordance with paragraph (g) of this
(8) McoJte The following
monitMrtng shall be An tid n1iig
initial site snity when the sit.
ev ou proJn - v . 6L ticn that
shows the p . ,I K’I for
radiation or WUi’ orwbsu
the sits Information Is not
mr” b’y to aIh,dMaM these po ’
(I) Monitoring with iM U reading
lnaIsmaanto for b cdosa levels of
Ion ng radiation.
( I I ) Monitoring the airwith
ayy ,Iw 1aiRj ir_Otr.sAllgtast _____
equipment combostiblo gas siate
detector tubs IDUI and o*at•
conditions that may eso 1e es
- s I c i explosive
IM3 atmospheres, dsflnisacy. toxic
subetaumo). ________
(lii) Visually obaurving for signs of
__ actual or, --° 1 Will or other
( Lv) An m gith ate IL4Infl
to accordanc. with perugraph
____ (It) of thini ’ shall be Impl . .’ed
__ after site characterization has
dut-’’ ’d the site Ia safe for the start-
0 thI Once the
presence and ‘ve .n’ edcu ci specific
hazardous substances and health
hazards have been established. the risks
aaaodated with these substances shall
be Identified. Employees who will be
woxhingonth.siteehaflbe I nf dof
any risks that have been 4 it .t En
situations by the Hazard
C -. - -’ dc. S ” ”d . CFR
i91O.i teh hig required by that
e’ ” ’d need not be dOpHcated .
___ Nate to (cK7 ) .-JIshe to co” ’ ’
bats,. set limited
( a) 1rp-- 1 . a . , g the permisulbis
re limier and pub darpsuusu
(bJ LOU!
iaIskinsbuarptiaeendIrrImdeu
lu--u--- -
(4) PotsadsI ‘ye lnttatiaa w
tel Explosion iesMti,tty em
( 1 l 0 m.’
(8) Employee nod flcadoe. My
Information concerning the th ’r-&
physical. and toxicologic properties
each substance known or expected t
present on site that Is available to tb
employer end relevant to the dudes a
employee Is expected to perform aba
be mad . available to the affected
employees prior to the ‘ “ “ eme ’
of their work activities. The employe
may utilize Information developed fox
the hazard ml’ tico standard I
this purpose .
(d) Sit. wntrol—(1) G.aervL
Appropriate sits conitol procedures
shall be impl.m nM4 to oLruI
employee exposure to ba 1 atduus
substances babes close-up work be
(2) Sit. .ouiprcgzma. A sits cooi
for pntiaxting employees win
is part of the employer. slta asfstpr an
h..hb , .agrnm . ..i uirsd In paragraph
b).fthia ’nsbsilbsJmaMped
hi t s g the p t - —”- .g stages of a
bazsrdoiwwaste dean -up operation a
usoueary as
Information b. avsIla
3) 51R
Thesiteo. tiulpmgrar
5 I 1W UJIM fl4 5
. ,rtaa”l siis—--—-’ tiR’ ”
aLe ” icr the
v” ’d opmatingproce us or safe
worfrprsc”’ of ti
nearest medical assistance. Where the:
raquimemte are sluwbara
they need nat be uepestad.
( a) 2 a1nhtg-(17 (I) All
empL jyeii wntklng on site femb as bus
not limited to e . i , *oporatem.
ganaral l.bomm and otcis) axpasid it
hazardous substances, b .k1 rds ,
or safety hazards and their supervisors
sod agr m ’ responsible for th. sit
shall receive te hthIg asaflap the
of this pmagraph before
they are parmlttsd to ii egs In
hazardous waste operatima that could
expose them to hazardous subetsncss.
safety, or health hazards. and they shall
receive review tr-’ 4ng as epeclfl’d In
this paragraph. ___
(I I) Employees shall not be p wft2sd
to participate In or supervise field
activities until they have been trained Ic
a Level reqsnred by their job function
and responsibility.
(2) Elements to be covered. The
Irethia shall thoroughly cover the
Iollow lngr
( I) Names of pereana4and alt’
responsible for site safety and)
t.
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P al I .gI / VoL 5 No.42/ Moaday. March 6 i9 / Riles era) Regia )an
( iiJ st 1 th d ____
(1111 Usa ei i Wucth ,
equipmsn
(iv W .JL_ by width ii.
ha a 1 r _____
and --‘ij’ - ’ on the cite
( ) M cil survthulancs
requiiem i , “ 4 udlo f,’ -’ 1 oa of
aymp and sl irid.h Wkh
i i44a is hazisda and
(v ii) 1 of ((s)
thrssa 0)01 the sits ty and h..Ith
___ In porigraph (b)(4JQ1) of
( 3) Ifli jiflq ( 1) Cenerij site
work (seth as . qn1p
— laborers and sp ory
p - I) — In___
gn o., J oroth vi e
width p—r ps iiej1y iija
worksu, in h _ I- _ j ... . and
health L. _ .J . shea ISOulywl L l—
of an h .. 01Instnasiia oaths site,
sada—’ _Ol daysa uij
su..i ijinof a ‘ud . experlenond
( II ) W n site only occeiIonafl
for a spsciftc limited task (s as, bet
not limIted to, — w.ts moaltodsp ,
land emveying, or geo .pbysicaj
sy snd , unlthsIp bbs
n _ 4 over
and pab mi posww Mit ,
s N ...I. . a _ i _ L.- _ 0124 boem of
__ and the - J -
ofon. ç’ f
. fr ”—4
- —— — ——.7
w i n—--- --*-
-..
I_. t
D’ ’ tL
“- .-
Nu,hi eat eeo..y, .nd*.
that ea
no 1 ’ Lemiul . or. the po..C i , of
an emorguscy d 5PJd I, , shall rooJ.
a ‘ —‘ .. 8(h n , ofis uctfon off
tbe5ftei dth,_” _doneday
actual field ezpmiao der the direct
supunh iL . ofa b-’-- . experienced
sub. aee.,g by (.)(3)(H)
and (.)(3 )fJftp of this . ictI .. . and who
become geuei.l site workem or who are
requis,d in wuer r ,inrs. shall have
the adthnorma 1$ boor. and two days of
trabi .,g n y to total the tr .Mirig
specified paragraph (e)(3)(I).
(4) M ’ —t end aup.r v i*or
traina,g , -. - - I and
sups ,. di iL, iS .pa kl for, or
who sup . employees esgsgnd In.
h.. -d. .s_i_ ops doms shall
1v. 40 hours Initial and
three days of oopor,La4 field
azporlsnoo (the tsIIn4I may be reduced
tO2ho m iaadonedayjfthe y 1
of thsfrue.posslblØty Is employee.
co. 1 .d by puegriphe (affajØI) and
(e)f3)flflfl end at heat eight edthHo aI
hems of specialized tr.tek . at the tinia
ofJobassi sutu s ,i s, i it
not limited to. the emplopeVs safety and
health p -m end the aisciated
employee training jzu 5 . _ , , pun.a]
aqul 1 .. . .. .j pusp w , spill
con --’t pr and health hazard
mu.lIu pvu .dem and ‘— qiJ &
(5) wfrrb ,
Trainers shell be quslified to Instruct
employees about the sib).t mater that
Is being pr._..j_J is Ii .lel .e . Seth
shaft have satL
f,rLu1 d 5 ftaL, . g prI for
teaching the u .b$. lim, are expected
to teeth, or they skull her, the
a•—”-—--c 3 m ..tisle a Iuatu.itleoal
exptL a— :y for leaching d
eab Instsvcters skull d ain
competent keti -i
knowledge .1 the eppReabl.ee sct
matter.
(0) 7 ih
andsupuevisor, that ha ,. d end
successfully v mplet.d the tsuLJg and
fleid ’ iç
(•t k h l
bsand 4by 5 1
heutb_- _ _$g 1 esperv or
as hav ee lya—i,hI_g lb.
sh sh
sub. bornot been
ss omtifled evwb.d iu.
_ L weiss sp& U
baw*...,.m , citsaftoan at
1 .L ....wesisaleee.sp sites that may
- ‘p-orthomisL...f.u .subs
shaft ___ ___
such expea
(8) Re ueh.r ’a âq. Employees
specified hi paragraph (e 1) 01 thIs
sorSian , and — ‘ sad mspervlsors
specified In paragraph (.) i) of this
skull ia.I . e*t b . . . of
refresher tru lly on the items
specified In paragraph (ej(2) and/or
( eJ(4) of this i eGhloearyeruuqeeof
h th4. ..ts that have In the pest
year that em s.. . .e. tr.Mhig examples
of related work, and other ieleva
to .
(9) £qidvvzlorv bvhthig. Employers
who can show by docomantatjo,i or
certifl .ai lon that on employee’, work
e ..nce andlcrte.r L ha. reusdied
In frahtheg equdvalem is that teething
In pungrepI (eNI) thrue
( .1(4) of lids eec(jo.j shall not be
required to provide the initial trair
requirement, of those para .pbs
such employees. However. crrttfle
employees new to a site shall rem’
appropriate, site specific training b
site entry and hare appwyr*.t.
supervised field experience at the i
site. Equivalent training includes a
academic teulithig or the training ti
existing employees might have airs
received from actual hazardous wa
site work experience.
(I) Akdlosia,,veiiw,ca..(l) Gem
Employers ecgagsd In opuT .tions
specified In paragraphs (aKlJW thr.
(a1(2)Øv) of this section and not CO
by ( .1(21(61) exceptlom end emp1o
of amploys,. . specified In parugrepi
(q)(9) shall Institute a medical
eurveIII — In a rdanc
this par aph ,
( 2) covered . The moth
, . . shall be hum ’
by the employer for the following
(1) I employees who em or may
exposed to hazardous uuhuance, oi
health hazards at or abov, the
permissible — qioai . 1 . limits or. if thf
no - _ Itj1 0x _ . limit. ahoy
published exposer. mu. , f these
wtskuuti.,,,- the or
re.,i ..tcrs, f’3sdayeur flees a yr
( Ii) AI4mpkjyeeewb. .
dayw ur e a yea
as esqeired by tiltaist
UIJMaIi. is whoem In) urres
due in __‘ . he. an
l!allsat hi A L4 ki. J _ skt
or h _ It hde.d or
(VvjMbiab . 1 . .f HA IAT tears.
3)P)wquoneyofassdj
enemiracfjm,, enL. Jg
Medical avaIn . de. and coe.ltat
shall be made available by the empli
to each employee under
paragraph (11(2) of this sacti on th,
following scbedelsg
(I) For employee, covered under
paragraphs (fl(Z)(lJ. (ffl21(1I). and
(fJ(2)( lv):
(A) Prior to assignment
(B) At least once every twelve mor
for each employ.. covered unless th.
attending physician believes a kmg
interval (not greater than biennially)
app . r lat .
(C) At termination of employment i
reass’g ”.nt to an area where the
employee would not be covered if thi
employee has not had an examinatioi
within the last six months:
(D) As soon as posmble upon
‘totificatlon by an employee that the
employee he developed signs or
symptom. Indicating possible
-------
Federal k.glst ,, I VoL
54, No.42 I Monday, March 0, 1989 / Rules and Regulatlo 0 s
overexposur, to be.aid s substance,
or health hazards, or that the employee
has been Injured or exposed above the
permissible a po$, limits or pnhli.ked
posur levels In an emer5ency
situatlom
(B) At more frequent time,. if the
examining pbysiaan determine, that an
nm-eased frequency of ez inu ’ j
medically necessary.
(H) For employee, covered under
paragraph (f)(2)(Ili) and for all
umplayees Including thos, of employers
cov d by paragraph (a)(1)(v) who may
have been Injured, received a health
impairinaut developed signs or
symptoms which may have resulted
from exposer, to hazardous subs . ’..
resulting from an emergency ii ’M.n 1 , or
posed during an emergency MathI.,it
to hazardous subsraT.c., at
concentration, above the pezmiuible
exposure limits or the published
e,cpoai levels wfthout the necessary
personal protective eqmpm ,,L being
useth
(A) As soon as possible following the
emergomy “ 1 ent or development of
signs or symptoms
(B) At addlHnnal Hi , ,. , If the
e mMj g physician det r ’ui. ... , that
follow-up aI ’ml.t 1ons or consultation,
are medically suy.
( 4) Ceatont oF dm1 avam ‘ at foiw
COd ‘-w— 1--” ( I) I5. j j
___ by paragraph
(1)(3) of ibis eantlon shall Include.
medical and work blstoiy ( w updated
hlsh.y lion. Is ‘ -ths employee. file)
with - pmiul on sYmptoms
related to the hii jftng of hazardous
substances and health hazards, and to
fitness for duty ‘ i- “ -dL 4 the ability to
wear any re ., .J 4 PPR niuler tñIHom
(La, t.mp , extremes) that may be
expected at the work site.
( II) Th, content of medical
Iuafton, or consultations mede
av 4I I4e to employees pursuant to
paragraph (I) shall be determined by the
at’a ”dlng physician. The gulat.lins , In
the aio Sa and Health
Guidance MaHa , Waste
Site ActMtie, (See Appendix D,
Reference *101 should be consulted,
(5) bva physician and
omte. All medical .Ta thl tlon_s and
procedures shall be performed by or
under the supervision of a licensed
physician, praf bly one
knowledgeable In occupational
medicine, and shall be provided without
cost to the employee, without loss of
pay. and at a reasonable time and place.
(0) laf osmation provided to the
physician. The employer shall provide
one copy of this st 4 rd and Its
appendice, to the attending phytician.
and In addition the following for each
emp loyeei
(I) A deomiption of the employee’s
duties as they relate to the employees
(H) The employee’s exposure levels or
anticipated exposure levels.
(iii) A desm-Iptlo of any personal
protsid equipment used or to be used.
(lv) Information from previous
medical s aIqlnstions of the employee
which Is not readily available to the
• Intag physician.
(v) Information required by 11910.134.
(7) Physicians written opinme. (1) The
employer shall obtain and furnish the
employee with a copy of. , tlUow
(A) The physician’s opinion as to
whethe, the employee has any de’cted
medical conditions which would place
the employee at mm-eased risk of
material Impairment of the employee’s
health from work In hazardous waste
operation, or emergency response, or
from t.u gutO use.
(B) The physician’s ra .— . .--.-- ’i d
limitations upon the employee’s
assigned work.
(C) The results of the medL l
mand tests If requested by
(D) A sta’ ’ ,nt that the employee has
been Informed by the phyufcIaa th ,
resuligof the madical aimminationand
any medical iMH which sspJ
further m4 ’s.tlo. ot _____
(U) The written opinion obtained by
the employer shall not apacific
Siidlngu or diagnoses unrelated to
( 8) Ra dfrenpi,pg . (I) An acowate
re Cf the ‘ -I survuillance
required by paragraph ( I) of this section
shailbeg,I-L This iucur4sha be
retained for the period and
msstt b s i . Iaf 2 9Q1R191o .m
(II ) The tsc J required In paragraph
(f)(8X1) of this section shall Include at
lust the following Informatlour
(A) The “ .“i and social security
wnber of the employees
(B) Physician’s written opinions,
‘ — “ ‘d limitations, and results of
tsaffons and tos
(C) Any employee medical “p 1 aints
related to expos to hazardous
(D) A copy of the Information
provided to the . ,r ini4i.g physician by
the employer, with the exception of the
standard and Its app.”ilces.
(a) Engineer g controls. woa*
practice., and personal protective
equipment for employee protection.
Engineering controls, work practices,
Personal protective equIpu! aI!t , ore
combination of these shall be
implemented In accordowe 5
paragraph to protect employ
exposure to hazardous subste...
safety and health hazards.
(1) &rgjneenng control,, r.erk
practices and PPE for substances
regulated in Subpozt, G ondZ (I)
Engineering control, and work practic
shall be Instituted to reduce and
‘lntajn employe, exposur, to or beic
the permissible exposure limits for
substance, regulated by 29 R Part
1910. to the extent required by Subpart
Z. except to the extent that such
controls and practices are not feasible.
Nat. to (g)(1)(I) Englaseriug cuetisis wha.
may be t . ihle Include theme at
pras.. ld cabs or caan ,I bcuthi on
s ‘.—t, andlei theme etrusu I,
cp d . at L.l aq - — ‘ Wor
whidi may bef—”i I-ar, iemo ii
ali b is - - ___
a pft vrs thatng ; atditme. wethug
down dusty epetstiaca and icosting
employee. spwh4 of p bI . bawd,.
(II) Whenever engineering controls
and work practIces are not feasible. PP!
shall be used to reduce and maintain
employee axpo. . a to or below the
p ’ bIe exposur . limits or dose
limits for substances regulated by 29
R Part 1910 . Subpart Z.
(lIl)Thaeinp1oyershaflnotImpJ “
a rhaduls of employee rotutlor
c pl&. with pond .
eiq oem limits or dose H .i
when there lane otherfossible way of
compI Ing with the akb or dermal
dose limits for ‘ ‘1.1- radiaU ..
(lv) The provIsions @129 L Subpart
he llbefo l low. d.
(2) £agin.eth aware!s, woa*
pJ ”fhme . and PPS far eaJj. - w
regulated in Subpmes GandZ An
a late bin tionofaugir lug
controls, work p es and —
protective iq— 1 -—” . shall be used to
reduce and maintain employee expoou
to or below published - po.ur . levels
for hazardous subsin ”.. and health
hazards not regulated by 20 R Part
1910, Subparts G and Z. The employer
may use the pnkll.hed literature and
MSDS asa guide Inmaki ng the
employer’, determInation sate what
level of protection the . “ 'ployer believes
Is appropriate for hazardous substances
and health hazards for which theta Is no
permissible exposure limit or published
exposure limit.
(3) Pa rsonal protective equipment
ic/scion, (1) Personal protective
equipment (PPE) shall be selected and
used which will protect employees frn ’n
the hazards and potential hazards ti
are likely to encounter as Identified’
during the site characterization,
analysis.
-------
— - -q ijp$
Fedwd E.gbsmn 1 VoL-e No.42/ Mm t1ay . March e. i9 G / Rules and Regulations -___
th 8 d éW!alati,, to tb.
requfremento issi IZad ofibe sit..
lbs tesk ffl . didonswd
and the and ps.iiH 1
bawd. l&la, tlfted at sit..
UllI Positive pressure self -contaIned
breathiag appointee. or posldv.
p.... air-Ha. respirators equipped
with an escape air supply . shall be used
when mic.I — level. present
will aBate a substantial possibility of
immediate death. immedlat, sur1o a
ilhitu Or is4wy , or L.., L . the ability to
otally4u 4p ---t-th g
protective suits ( protection equivalent to
Level A pr *ir tkuj . srs ----- --d In
App 4iv 3) shall be used to conditions
where s absorption of. hezsrdous
s”i ”cu may result Ins substantial
possibility of Im...dlata death.
immediat, serious Hi 1 or to .or
impair the ah 2y to—i pc
(v) Th,IeseI of I. AIon provided by
PPE .eIeab ,I be bwu---,4 when
addlunnel In tien on site
HH hulL - t & that Inoreesed
prot en ia’—uy to
employee exposures below permissible
a pc n In.4l esdpshllshed exponnu
levels tssbawdmm nbø - sod
“ — ‘ ----J. . ea App” B
Pi to 1b.bsd d ..L ..
- d —
- -. erMine s
mmltlnk. . .ç $s Lsyese .
(vi) Personal
eballbs — sdto th ,
requirements of 21 R Part 112I
____ — -“— -‘ -
ap flaA to ____
( 4) TolofJy’-..-- _ LM -
pzW Jrc mi i i . (1) Totally-
li pr L
hem the paiticuler bssord
which em —-‘ - hig sits
(II) Totally-encspsuiathig suits shall
be capable .f _ .A g positive air
pr (SesA — Afors test
ilbod which mop be used to evaluate
th =a_ suits s au
be capabl, of preventing Inward test gas
leakage of more than 0.5 y. J . (See
Appendix A for a test method which
may be used to evaluate this
(5) Persesoiprotactiv. equipment
(PPR)pzugram. A written personal
protective a1 ipwont program, which is
part of the employer’s safety and health
program reqoir.d In paragraph (b) of
this s , or required In paragraph
( PXI) a wil o nand which is also a
part of the site.specthc safety and
health plan shall be est h5.I.t The
PPE shall address lbs
listed below. When 1 ’c such as
d 0 nith g and aI ffli g procedures. are
piovidedhy manufacturer of. piece
of equipment and are attacked to the
plait. they need not be !ewr&tte Into the
plan as long as they adequately address
the procedure or element.
(I) PPE selection based opon sit.
(I I) PP use and limitations of the
equipment
(W) Work dorstice.
(lv) PP! asint.nanoe end storage.
(v) P 1!thI dofl end disposaL
(vi) - . — tr _ kA. and fitting.
( vii) PPfi d .— ..g and dMfing
(viii) PPE inspec*Ioq procedures prior
to. during. and after use.
(ix) E of the of
the PPE wu and
(x) ‘ “ tiees “ 1 g tompem e
extiemos. t - and e
appropriate “—I lfces.
(k) Moaiteniq—(1) G.aeruL (I
Monli ’ri.ig sierit be piL . .d to
accosds with this ps-- k whem
there may be. question of — “ye
exposer . to buaaidous c ---— -h of
hazardous suhss ri to anlw to assure
proper - ‘- -
work - and p-suual pr miv.
e .r4iient so that employees
exposed to lasiuls which .rcoeed
permissible pc-s or ri4iehed
or uer levels for hemidous
( ii) Air shall be used to
IAa. flfy and quantify airborne levelsof
mibsteeme and saf.ty and
health’ d i Inoiderto determine the
appsu ats level .1 employs. protection
‘ “4 on site.
(2 ‘ ‘.anby. Upon liiti.l envy.
representative sir monitoring shill be
conducted to Identify any IDLH
cnnulltien. - ‘cpusure over permissible
exposi I —& ’ or pnhll.1id osure
Levels. p”-uis over a radioactive
materials dose limits or other 4 uigm’ous
condition such as the presence of
fl ” meble a oii i— or
environments.
(3) hriodicmouitruing. Periodic
monltc shall be “ “ -d when the
po ih4flty of an IDLH condition or
flriiiv.i.bIa ateiosphsre has developed or
when there is hi . tion that exposures
may have risen over permissible
exposure limits or published exposure
levels since prior monitoring. Situations
where it shall be c . .i.ttl.ied whether the
po ’I ’ ii’y that exposures have risen are
as follows:
(1) Wbenwwh b. 5 ..s ena dilsient
portion of the site.
(u) When contamments other than
those previously identified are being
handled.
(UI) When a different type of
operation is initiated (e.g., drum opens
as opposed to expiurstosy well drillint
(lv) When employees are haiidftag
leaking drums or containers or workirt
In areas with obvious liquid
contamination (e.g.. a spill or lagoon).
(4) Morsi1w g of high-risk empJoye
After the actual clean-up phase of any
hazardous waste operation commence
for example. when soil. surface water
containers are moved or disturbeth thi
employer shall monitor those employe
likely to have the highest exposures to
hazardous substances sod health
hazards likely to be present above
permissible limits or publish
esposere levels by using personal
si’ ”$Ing frequently enough to
characterize employee exposures. If tI
employees likely to have the highest
exposwv are over permissible exposw
limits or published exposurtflmits. th
monlt g shall continue to determint
all employees likely to be a ve boar
limits. The employer may . .ifiI a
represe Uve . m.qpIh g approach by
documentlug t the employees and
chemicals chosen for . ‘.-.-ILorL.g are
ba . d on the mitaria stated above.
N te kIsuot — ,-‘-—I
-•
. . .. I bp - - ( 4.1 thi
(I) L .J .megiosuaI. .. I um& — loy i
sballdeve1opal spmgzo
which Is pert of the safety
and health iu sm rsqulred
paragraph (b) of this . ctt.. , to m i . . . .
employees. oontisctors . wd
subconfractors (or their . rtuliv
actually engaged In hazardous waste
operations of the nature, level and
degree of exposure likely as a re..Jt c
participation In such hez.rdou. wuts
operations. Employees. coait ct . . .. ar
subcontractor, working outside of the
operations part of a site are not cover
by this standard.
(I) Handling drums end contatheiv-
(1) GenemL (I) Hazardous substances
and con’ f” ted soils. liquids. and
other residues shall be bandied .
transported. labeled, and disposed of
accordance with this paragraph.
(ii) Drains and containers used dun
the clean-up shall meet the appropna
DOT. OSHA. and EPA regulations for
the wastes that they contain.
(UI) When practical. drums and
conthm.Is shall be inspected and the
integrity shall be assuied prior to beu
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— .0 ...:
sderal Register 1 VoL.54, No.42/ Monday, March 8. 1989 I Rules end Regulation ,
• maemLThirwa ar . - ‘-—a thstcazmot
bsinspectod before beIng wve
bscsuonofatcie s..dlUmu (Li .,
bwted b- sth the earth, stashed
behind o dru stashed several
tiom h i s.pila,otc.)sfluLb.moved
IJU- —- e lo ti’ and inspected
prior ts.furth hsndIbt ’
(lv) Unlabelled drums and containers
shall be considered to contain
h.wdous mibstanc’e end h i d1ed
accordingly until the contents ire
positively Identified and labeled.
(v) Sits operations shaft be otganlzed
to , nm4 the amount of drum or
contein movement -
(vi) Prior to mavemeot of drums or
“ o”. .’s , aft employees exposed to the
transfer operation shall be warned of
the potential husrds associated with
the contents of the drums or containers.
(vii) U.S. Department of
Transportation specified salvage drums
or and suitable quantities of
proper absorbent shall be kept available
and used In was where spills. I* fr .
— may
(nfl) Where major spills may occor. a
spill con’- t ” t proçam. whish I. part
of the employer’s safety and health
prmpumreqithed In paragraph (b) of
this section . shall be tiup’-”erted to
osotsin and lealats th. entire voleme of
the hasardoar substance being
( Ix) .nd containers that
be tbt .yIi,M , leakapo. or
spIfl Il beemptiki into a sound
a device . 41l d for
the ataslaibsieg tasneferret
(a) A omtretiug . ,.t or
othw pe if or devios
in setteiste the locedce
and depth d 1sddrumece elein-n .
(x l) Soil or .g usatedal shaft be
removed with , .........L dr
or
( xli ) Fir. Sq r•’ ’t
meeting the requirements of Q R Part
iam subpartl.sbailbeenbandead
ready for use to control Incipient fires.
(2)Cp. MqdrnnseondnsnSaüsem.
The following procatiwa shall be
followed in areas where drums or
container, are being opeus&
(I) When an airline respirator system
Is ussd’ otions to the scarce of s i r
supply shaM be prot.ctld from
and the Ur . system
shall be protected from physical
da
opening drums or con ’a shall be
kept a safe distance from the drums or
containers being opened.
(ill) If employees must work nearer
adjacent to drums or containers being
opaniid , a suitable shield that does not
tnL .dasi with the work operetion shall
be placed between the employe, end
th. drums c i containers beirsgopened to
protect the employee In cue of
accidental explosion.
(lv) Canfrols for drum or container
opening equipment. monitoring
equipment and fire suppression
equipment shall be located behind the
exploelanraIi$tsnt barrier.
(v) When there Is a reasonable
possibility of ft iiimable atmospheres
being present material handling
equipment and hand tools shall be of the
type to prevent sources of Ignition.
(vi) Drums and containers shall be
opened in such a manner that oni e
Interior pressure will be safely relieved.
If pressure can not be relieved from a
remote location. appropriate . M1 .41v g
shall be placed between the employee
and the drum, or containers to reduce
the risk of employs, injury.
(vii) Employees shell not stand upon
or work from drums or containers.
(3) Mctst aJh” ” i . qv*””&
Material I ’ig eipiipmit used to
— theme and eu- -’-’s shall be
selected. posl6reed arid operated to
mh iMl iaWu55 OIlyIIiIIOa related to
the born Igeitiug vapors
released from ruptured drums or
(4) aamaoc v. . .,.aiia . Drums and
kig I InLg radioactive
wastes shill not be until sash
t lmsasth s i rbuard t ee mployuee ls
iroy.sly s:::
( 5) 5hcth IUve wce As.
precautions shall be taken when drums
and containing or napsiiis
o” g sbesh.ssus*ths wastes are
(I) Aflnom.sssutfal employees shaft
be er uiad from the area ci iraswf, .
(II) “ - ‘- 4- i handling Iq w5” t shall
be provided with explosive nisa t
dsvices . 1 4 Iil to p itJtti
— — from exploding
— s .
(U I) An employee slime . ystan
capable of being p... .a1 T sd above
surrounding Mpht and rich. conditions
e l iallbe usedto4’. lthe
niwn iit and completion of
— waste b H g activudas.
( Iv) Continuous communications (La..
portable band . Ig
telephones. as appropriate) shall be
, vi.MI *nad between the empIoyee 1n-
charge of the edlata area
and both the site safety and health
supervisor and the post until
sash time as the b.n’41’n.g operation Is
completed. C ummUon equipment
or methods that could cause shock
sensitive materials to explode shall not
be used.
(v) Drums and tihieri
pressure. as evidenced by b .
swelling, shall not be moved trr-su
time as ths cause for excess pressure
determined and spp!oplhats
cant ftm.at procedures have been
Implemented to protect employees frc
explosive relief of the em
(vi) Drums end containers contalrth
packaged laboratory wastes shall be
considered to contain ehock.ssnsitlve
explosive materials until they have br
characterized.
1 err” Shipping of shork sees vs
wastes ney be prohibited under U.S.
Department of Trsnspertatloa regulations.
Employers and the shipper, dwuId refer I
45 R 17321 and 17320.
(8) Laboratory wo ,z. packs. In
addition to the requirements of
paragraph (J)( 5) of this section. the
following precautions shall be “ a
a thih,w , 1 In h ii iIhi laboratory
waste packs (lab packa)
(I) tAb packs shall be cp—’ d only
when “ ‘nry end then only by an
Individual knowledgeable In the
thapectIv , classification. art
sajigation of the coot om within th
park acodlng to the hazards of the
wastes.
( ll)lfcrystsflfnamaturlal lslt*’
any -‘-4’ ’ . thS .t—* lb
as a lbUnkrIIflhl fl iU
the oare
m S ,Th o!&’um -- ‘
er.saa pIh g if —- and
drums shell be done ina.&i . ...- 1 -—— — ‘wati
______ — of
developed for and av° 1 ’l to
employs., and other, at the up ” ’
worksite.
(e) Sk4ip”tg cad £rlw.ap .It (I ) Drums
and containers shell be i i.ea.d and
d •s 51 ssi prior to packaging for
(0) Drum or con 1 ’ sr.g4’ig areas
shall be kept to the - “-i---- - number
necessary to Identify end ths y
materials safely and prepare them for
(W)Sh.g geress eheilbe ptovided
with adequate access and egress routes
(lv) B. 1 ’4 g of hazardous wastes shal
be permitted only after a thurwph
characterization of the materials has
been completed.
(9) Tank and vauftproc.dUrem (I)
Tanks and vaults cont hIg hazardous
substanuss shall be handld na macne
similar to that for drums and containers
t Icfteg Into consideration the size of’
tankorvault. .
( II) Appropriate tank or vault r
procedures as described In the
enrployeVs safety and health pL
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Federal Register I VoL 54. No. 42 I Monday. March . 6. 1989 / itules and Regulations
9325
be followed whenever employees must
enters tank or vault.
(k) Decontamiflatio.t-41) G.neruL
Proced iresfOrsUPhuiUoi
decon shall bs developed and
implem”d In accordance with this
(ZOUh!adOn procedures. (I) A
decontamI1 RtlOn procedure shall be
developed. coi imunjeatad to employees
and ünplemented before any employees
or equipment may enter urea. on site
where potential for exposure to
hazardous substances emits.
(U) Standard operating procedures
shall be developed to , . üthn4, .
employee omtect with hazardous
substances or with equipment that he.
contacted hazardous substanc.-
(lii) All .mpluysu Leaving.
con’__ ted ems ihall be
a,p.,riattly des-.nt _ ii Iiateth all
contad dothing and equipment
leaving a . ares shall be
aQpriatety disposed of or
deeoa .i41 tSd.
LIVJ uecou’ Uen pro ..u#i .rus shall
ouitovedbyth. sitesafety and
health supervisor to determine their
effe.tL.iiase - When audi procedures
are found to be tneffucths . a 1 late
steps shall be tskeu to correct any
(3) Location. Dej.w’-’ ” Iton shall
be p.rf rmed to areas that
will . iI.J L . the xpesemd
u ,e.. 1 .ii ,dii t d employees or
e4 4 ’4 to o ”-’ ’ employee,
o req id ’-.
(4) Equipment and solvents. All
equipment and ealimut. used for
shall be
decou” tsd or disposed of properly.
(5) Pezemal protective cIothi g and
equipment ( I) Piutective clothing and
equipment shall be Aita . ni.tsd .
cleaned. laundered. 1 1th111.d or
replaced as needed to maintain their
effectiveness.
( ii) Employees whose n
imparmeable clothing becomes wetted
with hazardous subs’ ve shall
immediately remove that clothing sad
proceed to shower. The clothing shall be
disposed of or decouf ted before it
is removed from the work zone.
(6) Unauthorized employees.
Unauthorized employee, shall not
remove protective clothing or equipment
from h 1 g roomi .
(7) Commermailczuidries or cleaning
ebliehm.nta. Co.” .. ’c*aI laundries
or cleaning establishment. that
dscon _i. h..te protective clothing or
equipment shall be Informed of the
potentially harmful effects of exposures
to hazardous substances-
(6) Shower. nd thange mean. Where
the decontamination procedure
indicatas a need for regular showers and
ch ng , rooms outside of a contaminated
area, they shall be provided and meet
the requirements of 29 CVR 1910.141. If
temperature conditions prevent the
effective use of water. then other
effective me” for cleansing shall be
provided and used.
(1) etg.nc7 response by employees
atuncontruliedhoxwdous waste vice—
(1) Emergency response plan. (I) An
emergency response plan shall be
developed and Implemented by all
employers within the scope of this
section to handl, anticipated
emergencies prior to the comutencemsat
of hazardous waste operations. The plan
shall be in writing and available for
Inspection sad copying by employees.
their repraseatatlves . OSHA personnel
and other governmental ageomes with
relevant zespouslbllitles .
( I I) Employer. who will evacuate their
employees from the workplace when an
emergency comas . and who do not
permit any of their employees to assist
in haa.flhig the . . . ncy . are . vempt
from the rsqubw.— ” l thf a paragraph
If they provide an emergency action
plan complying with section i910.*a)
of this part.
(2) Elements of an emergency
response plam The employer shall
develop an smmsgeucy r .puuau plan for
emergencies which shall address, as a
- -‘----.- the foflowlngi
(1) Prs .emergency pinni uuig
(II) Per.’ ’ai rolu. lines of authority.
and - tion.
(W) Emergency recognition and
( I V) Si?* distances and places of
(v) Sit. and controL
(vi) Ev. a th n routes and procedures.
(vii) Pe.-. .’-’ ’ - Uon procedures
which are not cevered by the site safety
and ha.Ath
(viii) Besergomy medical treaneent
a adllata ld.
no, alerting and response
(x) Critique of response and follow-up.
(x i) PPE and emergency equipment.
(3) P,v wee 1 1w handling
emergency incidents. (I ) In addition to
the •I.iui.at for the uenusg y response
pian required In paragraph (13(2) of this
section. the following elements shall be
in .4nd..d for emergency response pLsn
(A) Sit, topography, layout. and
prevailing weather conditions.
(8) Procedures for reporting lncllents
to local, stats. and federsi goverwnentul
agenries.
(II) The nsng iny response plan shall
be a separate Erth.wt of the Site Safety
and Health Plan.
(iii) The emergency respons, plait
shall be compatible and integrated with
the disaster. fire andlor emergency
response plans of local, state. and
federal agencies.
(iv) The emergency response plan
shall be rehearsed regularly as part of
the overall training program for site
operations.
(v) The site emergency response plan
shall be reviewed periodically and, as
necessary. be amended to keep it
current with new or changing iite
conditions or information.
(vi) An employee alarm system shall
be installed In accordance with 29 CFR
1910.165 to notify employee, of an
emergency situatlom to atop work
activities if necessary: to lower
background noise in order to speed
communicatlrm and to begin emergency
procedures.
(vU) Based upon the information
available at time of the emergency. the
employer shall evaluate the incident ait’ t
the site re.pmne capabilities and
ceed with the appropriate steps to
Imp I’n.”t the sits emergency response
plan.
(an) lilumtnotiosL Areas accorThie to
employee. shall be lighted to not less
than the virniivmffi uftuminetlon
intensities listed in the following Table
11-120.1 whAle any work Is In
TABLE H-120.1.—lü*num IIkjmiwtlOfl
tnta itias is Faot.cndse
Fco
.- -
Mau w
I
5 —4 Gsin em sues.
3.. —4 E . _ s sues. . -
we’ .me eme
I — em em
—. lr .JwIL WWmea.SI lad
ad . eL a
S -. _ .i T vaa. dWU. me J.and ii r
d 10 Imt..JS 5 a
si tewisi aS Wad n.ai new’s
amn uwadi ad uadl & w
em i ssim
em ad be es
oils wem flad.
ewe (e.q.. ad
ad — sa
ow. b 5!
or J ..— . wet..
ai aeon em me
I
30_ ... . ... Vbsi ad I . .i. . .s..a . ad ol.
is 0 . ’
(ii) Sanitation at temporary
wor*places.—(1) Potable water. (I) An
adequate supply of potable water shall
be provided on the site.
(II) Portable containers usad to
dispense drinking water shalt be
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9326
Federal Register /Vol. 54. No. 42 I Monday. March 6. 1989 / Rules and Regulations
capable of being tightly closed, and
equipped with a tap. Water shall not be
dipped from containers.
(iii) Any container used to distribute
drinking water shall be clearly marked
as to the nature of its contents and not
used for any other purpose.
(lv) Where single service cups (to be
used but once) are supplied. both a
sanitary container for the unused cups
and a receptacle for disposing of the
used cups shall be provided.
(2) Nonpotoble water. (i) Outlets for
nonpotable water, such as water for
flreflghting purposes, shall be Identified
to Indicate clearly that the water Is
unsafe and Is not to be used for
drinking, washing. or cooking purposes.
(ii) There shall be no cross-
connection, open or potential, between a
system furnishing potable water and a
system furnishing nonpotable water.
(3) Toilet facilities. (iJ Toilets shall be
provided for employees according to the
following Table H—120.2.
TASI.E H-120.2.—Ton .a ’r FAcU .mes
Numbsr c i ia Aoyms
mbur ci,
2 00rlewer
Ons.
Mar. than 20. few
One loilsi-aest and one
than 200.
ism& pr 40
-
Mars than 200
One Usi seat and ens
ama I per 50
i n-
(it) Under temporary field conditions,
provisions sha!l be made to assure that
at least one toilet facility is available.
(iii) Hazardous waste sites not
provided with a sanitary sewer shall be
provided with the following toilet
facilities unless prohibited by local
codes:
(A) Chemical toilets:
(B) Recirculating toilets:
(C) Combustion toilets: or
(D) Flush toilets.
(iv) The requirements of this
paragraph for sanitation facilities shall
not apply to mobile crews having
transportation readily available to
nearby toilet facilities.
(v) Doors entering toilet facilities shall
be provided with entrance locks
controlled from Inside the facility.
(4) Food handling. All food service
facilities and operations for employees
shall meet the applicable laws.
ordinances, and regulations of the
jurisdictions in which they are located.
(5) Tempora,ysleeping quartets.
When.temporary sleeping quarters are
provided, they shall be heated.
ventilated, and lighted.
(6) Washing facilities. The employer
shall provide adequate washing
facilities for employees engaged In
operations where hazardous substances
may be harmful to employees. Such
facilities shall be In near proximity to
the worksite; in areas where exposures
are below permissible exposure limits
and published exposure levels and
which are under the controls of the
employen and shall be so equipped as to
enable employees to remove hazardous
substances from themselves.
(7) Showers and change rooms. When
hazardous waste clean-up or removal
operations commence on a site and the
duration of the work will require six
months or greater time to complete, the
employer shall provide showers and
change rooms for all employees exposed
to hazardous substances and health
hazards involved in hazardous waste
clean-up or removal operations.
(i) Showers shall be provided and
shall meet the requirements of 29 CFR
1910.141(d)(3).
(ii) Change rooms shall be provided
and shall meet the requirements of 29
CFR 1910.141(e). Change rooms shall
consist of two separate thar ge areas
- separated by the shower area required
in paragraph (nJ(7J(i) of this section. One
change area, with an exit leading off the
workslte. shall provide employees with
a clean area where they can remove.
store, and put on street clothing. The
second area, with an exit to the
worksite. shell provide employees with
an area where they can put on. remove
and store work clothing and personal
protective equipment.
(iii) Showers and change rooms shall
be located in areas where exposures are
below the permissible exposure limits
and published exposure levels. If this
cannot be accomplished, then a
ventilation system shall be provided
that will supply air that is below the
permissible exposure limits and
published exposure levels.
(iv) Employers shall assure that
employees shower at the end of their
work shift and when leaving the
hazardous waste site.
(o) New technology programs. (1) The
employer shall develop and implement
procedures for the Introduction of
effective new technologies and
equipment developed for the Improved
protection of employees working with
hazardous waste clean-up operations,
and the same shall be implemented as
part of the sits safety and health
program to assure that employee
protection is being maintained.
(2) New technologies, equipment or
control measures available to the
industry, such as the use of foams.
absorbents, adsorbeats. neutralizers, or
other means to suppress the level of air
contaminates while excavating the site
or for spill control, shall be evaluat.
employers or their representatives. Sue,.
an evaluation shall be done to
determine the effectiveness of the new
methods, materials, or equipment before
implementing their use on a large scale
for enhancing employee protection.
Information and data from
manufacturers or suppliers may be used
as part of the employer’s evaluation
effort. Such evaluations shall be made
available to OSHA upon request.
(p) Certain Operations Conducted
Under the Resource Consewation and
RecovetyAct of 1978 (RCRA).
Employers conducting operations at
treatment, storags. and disposal (TSD)
facilities specified in paragraph (a)(1)(iv)
of this section not exempted by
paragraph (e)(2)(Lil) of this section shall
provide and Implement the programs
specified in this paragraph.
(1) Saf ety and health program. The
employer shall develop and Implement a
written safety and health program for
employees involved In hazardous waste
operations that shall be available for
inspection by employees, their
representatives and OSHA personnel.
The program shall be designed to
Identify, evaluate and control safety ani
health hazards in their facilities for’
purpose of employee protection. to
provide for emergency response me’.
the requirements of paragraph (p)(8) of
this section and to address as
appropriate site analysis, engineering
controls, maximum exposure limits.
hazardous waste handling procedures
and uses of new technologies.
(2) Hazard communication program.
The employer shall implement a hazard
communication program meeting the
requirements of 29 CFR 1910.1200 as part
of the employer’s safety and program.
Note to 1915.120.—The exemption for
hazardous waste provided in 1910.1200 is
applicable to this section.
(3) Medical swveil!ance program. The
employer shall develop and Implement a
medical surveillance program meeting
the requirements of paragraph (1) of this
section.
(4) Decent amination program. The
employer shall develop and Implement a
decontamination procedure meeting the
requirements of paragraph (k) of this
section.
(5) New technology program. The
employer shall develop and implement
procedures meeting the requirements of
paragraph (o) of this section for
introducing new and innovative
equipment into the workpLaop
(6) Material handling program.
employees will be handling drums e.
containers, the employer shall develop
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Fideral Register I VoL 54. No. 42 I Monday. March 6. 1989 I Rules . nndBeguisipc s
9I 1
aiid — paw d rsa misting the
pa .grapb UXI) (U)
thip.u L Ili)tO (XI) of this section. a.
will ser(jX5) fiJ($) dthfe mi
— to starth seth wouE
(7) Th i.tiag sm—4l) New
• .The — shall —
and p1ement • ts 1 ..Me
which tsp rtof4bwemployei’s safety
sad health peegrem. for employees
Involved with harardous waste
operations to enable employees to
— their auuties and
f n#!4a in a safe and heilthful manner
ross not to endanger themselves or
other employees. The Initial .hthig
shall be far 24 hours and refresher
ts ”g shall be for eight hours
. iv u..IIy . Employees who have rendved
the Initial ti m4Il required by this
paragraph shall be given a written
certificate attesting that they have
successfully completed the necessary
6 -
(ii) Current employees. Employers
who can show by an employees
previous work mpenesc. andlar
tt that the employee has had
ts ” ’g equivalent to the initial tt ” '4flg
required by this paragraph, shall be
considered as meeting the initial
tr.hthig requirements of this paragraph
as to that employee. Equivalent fr ining
i” ” ' tha that codstiag
employees mIg ’5 have akeady received
eito roth pw
__ shall r cswe aighi
hour , ofeafresber Ir’ ”19 . ituiit lIy•
U flai Trsthsrs Who teach
in1 .Lte t.LgbalL) *veutldictOiily
comp stuiab h(b j uarsI for ‘ ‘ 4 ”g
the subirir theysm p.cied to teeth
or they shall have ths
and bstsuctioa experience
necesemy to demonsirate a good
1 ,.-.---. tdsfth. .u l4sctmatt srofthe
w i end competent Instructional
. L4Il.
(8) Emergency response program—(l)
Emergency response plan. An
emergency response plan shall be
deseliped and lmp 1 .m. .td by all
employers. Such plans need not
duplicate any of the subjects fully
addressed In the employer’s contingency
pIem n g required by permits, such as
those Issued by the U.S. Environmental
Protection Agency, provided that the
cunUu cy plan Is made part of the
emsrpmcy i uyOri5O plan. The
emergency re.punse plan shall be a
written portion of the employers safety
and health required In
paragraph (p)(1) of this section.
Employers wh . will evacuate their
employee, from the workstte location
when an emergency oomrs and who do
not permit any of thelremployees to
auistIn heeaIIh. , the emer eec ’ are
exempt from the requirements of
paragraph (pJ(8) If they provide an
emergency action plan complying with
§ 1910.38(a) of this part.
(II) Elements of on emergency
response plan. The employer shall
develop an emergency response plan for
emergencies which shall address. as a
the following areas to the
extent that they are not addressed in
any specific program required In this
paragraph:
(A) Pre-emergency pIe i ti g and
coordination with outside parties.
(B) Personnel roles. lines of authority.
and communication.
(C) Emergency recognition and
prevention.
(0) Safe distances and places of
refuge.
(E) Site security and controL
(F) Evacuation mutes and procedures.
(C) Decontai,iinetion procedures.
(H) Emergency medical trea ent and
first aid.
(I) Emergency alerting and response
procedures.
(fi Critique of response and follow-up.
(K) PPE and emergency equipment.
(ill) Training. (A) Training for
emergency response empL ,..s shall be
completed before they are called upon
to p.rf rm In real emergencies. Such
tr t” ”g shall Include the aI’n ts of the
emergency response plan . standard-
operating procedures the employer has
estahlIKd for the job, the persona1
protective equipment to be warn sad
pro’ duies for heiwlihig emergency
int4a$ants.
£r ’ , ,ptI— CV An employer need not train
all ts d ea 5pv flad If the
L.,.. . livid. , the week fires is a
.uththata .II.bIr.fempI .yees
who hays.—,- I4yIgJ
bees the tr- i u -d . sad
all oth who may fiat ,,n..4 tO
an — cy have S
awsawos tesislag to r,—g ” that an
emIgeety situation emits and that
they am I. a.4 In that osse to rmim ’
the fully trs d employees and set sit..t
control s UviU ferwhith they s te not
Exception V An employer need not train
ill employees to th dsp .. . iwfid If
airseguments bare been mads in advsaos for
en nu fully-trained ensr y i y 1 a
team to tea re.r ” ’” p.mtod and
all employees. who may come to the “
first, hive •iifli a.t awsremus tr gto
-I that an aguacJ response
situation mists and they have been
lnetruct. d to call the deslguatsd outside fully-
traurid emergency respouse team for
ss$ istsn
(B) Employee members of TSD facility
emergency response organizations shall
be trained to a level of competence in
the rnccgaldon of health and safety
hazards to ier
employees. This would include training
in the methods used to th rtsk
from safety and health hazards in the
safe use of control equipment in the
selection and use of appropriate
personal protective equipment in the
safe operating procedures to be used at
the incident sc”s In the techniques of
coordination with other employees to
minimise risks In the appropriate
response to over exposure from health
hazards or injury to themselves and
other employees and In the recogrution
of subsequent symptoms which may
result from over exposures.
(C) The employer shall certify that
each covered employee has attended
and suceesefully completed the training
required in paragraph (p)(8) (Ill) of this
section. or shall certify the employees
competency at least yearly: The method
used to demonstrate competency for
certification of trehiiiig shall be
recorded sad maintained by the
em .
( lv) Thr -d forhaizdIini
emecpacyinA d’in (A) In addition to
the aL _ as for the emergency response
plan required In paragraph ( pff8)(V ) of
this sec’ t ”n . the following eleme shall
be far emergency response
plans.ta the — -i—-- ’ that they doast
repeat amp isF -tioa already
ceeite4 hetho _ . .. _ . _ aj . n .
plain ..-
(2)SItstopopayk_7laYOnt.
i. 19 .
(2) Pr J . for ep..LtL Incidents
to Local. state, sad f.dmeIr,_..p hhhhI taI
be np ”Ub1S and tet.gratud with the
disaster. fire andlar
re5vtInss plans of locaL stote, and
federal apmm _
(C) The emergency re. 1 jouss plan
shall be rehearsed regularly a. part of
the overall training pwgram for site
operations.
(1)) The site emergency response plan
shall be reviewed periodically and, a.
necessary. be . nr.iiiied to keep It
current with new or .i g4itg site
conditions or Information.
(5) An employee alarm system shall
be installed In accordance wIth 29 ‘R
1910.165 to notify employees of an
emergency situation: to stop work
activities if a.cessary to lower
background noise in order to speed
communication: and to begin em rgency
procedures.
(F) Based upon the Information
available at time of the emergency. the
employer shall evaluate the incident and
the site response capabilities and
proceed with the appropriate steps to
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9328
Federal Register I VoL 54, No. 42 I Monday, March 8, 1989 / Rules and Regulations
implement the site emergency response
plan.
(q) Eineaqency response to hazardous
substance releases. This paragraph
covers employers whose employees are
engaged In emergency response no
matter where ft occurs except that it
does not cover employees engaged In
operations specified in paragraphs
(a)(1)(I) through (a)(1)(lv) of this section.
Those emergency response
organizations who have developed and
implemented progran., equivalent to:
this paragraph for handling releases of
hazardous substances pursuant to
section 303 of the Superfund
Amendments and Reauthorization Act
of 1988 (Emergency Planning and
Community Right-to-Know Act of 1988
42 U.S.C 11003) shall be deemed to have
met the requirements of this paragraph.
(1) Emergency response plan. An
emergency response plan shall be
developed and Implemented to handle
anticipated emergencies prior to the
commencement of emergency response
operations. The plan shall be In writing
and available for inspection and copying
by employees, their representatives and
OSHA personneL Employers who will
evacuate their employees from the
workplace when an emergency occurs
and who do not permit any of their
employees to assist In handling the
emergency, are exempt from the
requirements of this paragraph If they
provide an emergency action plan In
accordance with 1910.38(a) of this
part.
(23 Elements of an emergency
response plan. The employer shall
develop an emergency response plan for
emergencies which shall address, as a
minimum, the following to the extent
that they are not addressed elsewhere:
(i) Pre-emergency planning and -
coordination with outside parties.
(ii) Personnel role., lines of authority,
training, and communication.
(Ill) Emergency recognition and
prevention.
(iv) Safe distances and places of
refuge.
(v) Site security and controL
(vi) Evacuation routes and procedures.
(vii) Decontamination.
(viii) Emergency medical treatment
and first aid.
(ix) Emergency alerting and response
procedures.
(x) Critique of response and follow-up.
(xi) PPE and emergency equipment.
(xii) Emergency response
organizations may use the local
emergency response plan or the state
emergency response plan or both, as -
part of their emergency response plan to
avoid duplication. Those Items of the
emergency response plan that are being
properly addressed by the SARA Title
UI plans may be substituted into their
emergency plan or otherwise kept
together for the employer and
employee’s use.
(3) Procedures for handlinq
emergency response. (I) The senior
emergency response official responding
to an emergency shall become the
individual in charge of a site-specific
Incident Command System (ICS). All
emergency responders and their
communications shall be coordinated
and controlled through the individual In
charge of the ICS assisted by the senior
official present for each employer.
Not . to (qJ(3)O) ,—The “senior official” at
an emergency response is the most senior
official on the smte who has the responsibility
for controlling the operations at the site.
InItially ft Ii the senior officer on the first-due
piece of responding emergency apparatus to
arrive on the Incident scene. As more senior
officers arrive (La., battalion chieL fire chief
state law enforcement officiaL site
coordinator. etc.) the position Is passed up
the line of authority which has been
previously established.
(ii) The Individual in charge of the ICS
shall identify, to the extent possible, all
hazardous substances or conditions
present and shall address as appropriate
site analysis, use of engineering
controLs, ma,dmum exposure limits,
hazardous substance handlh,g
procedures, and use of any new
technologies.
(iii) Based on the hazardous
substances and/or conditions present,
the individual in charge of the ICS shall
implement appropriate emergency
operations, and assure that the personal
protective equipment worn is
appropriate for the hazards to be
encountered. However, personal
protective equipment shall meet, at a
minimum, the criteria contained in 29
CFR 1910.156(e) when worn while
performing fire fighting operations
beyond the Incipient stage for any
incident or site,
(iv) Employees engaged In emergency
response and exposed to hazardous
• substances presenting an inhalation
hazard or potential inhalation hazard
shall wear positive pressure self.
contained breathing apparatus while -
engaged in emergency response, until
such time that the Individual In charge
of the ICS determines through the use of
air monitoring that a decreased level of
respiratoly protection will not result in
hazardous exposures to employees.
(v) The individual In charge of the ICS
shall limit the number of emergency
response personnel at the emergency
site, In those areu of potential or actual
exposure to incident or site hazards, to
those who are actively performing
emergency operations. However.
operations in hazardous areas shall L
performed using the buddy system in
groups of two or more.
(vi) Back-up personnel shall stand by
with equipment ready to provide
assistance or rescue. Advance first aid
support personnel, as a minimum, shall
also stand by with medical equipment
and transportation capability.
(vii) The individual in charge of the
ICS shall designate a safety official, who
is knowledgable in the operations being
implemented at the emergency response
site, with specific responsibility to
identify and evaluate hazards and to
provide direction with respect to the
safety of operations for the emergency
at hand.
(viii) When activities are judged by
the safety official to be an IDLH
condition and/or to involve an imminent
danger condition, the safety official -
shall have the authority to alter.
suspend, or terminate those activities.
The safety official shall immediately ’
Inform the individual In charge of the
ICS of any actions needed to be taken to
correct these hazards at an emergency
scene.
(ix) After emergency operations have
terminated, the individual in charge of
the ICS shall Implement appropriate -
decontAmination procedures.
(x) When deemed necessary for
meeting the tasks at hand. approved
self-contained compressed air breathing
apparatus may be used with approved
cylinders from other approved self- -
contained compressed air breathing
apparatus provided that such cylinders
are of the same capacity and pressure
rating. All compressed air cylinders
used with self-contained breathing
apparatus shall meet U.S. Department of
Transportation and National Institute
for Occupational Safety and Health
criteria.
(4) Skilled support personneL
Personnel, not necessarily an employer’s
own employees, who are skilled in the
operation of certain eqwpment. such as
mechanized earth moving or digging
equipment or crane and hoisting
equipment, and who are needed
temporarily to perform immediate
emergency support work that cannot
reasonably be performed In a timely
fashion by an employer’s own
employees, and who will be or may be
exposed to the hazards at an emergency
response scene, are not required to meet
the training required In this paragraph
for the employer’s regular employees.
However, these personnel shall be given
an Initial briefing at the site psior to -
their participation In any emergency
response. The Initial briefing shall -
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Federal Register! Vol.54 . No. 42 / Monday. March 6. 1989 I Rules arid Regulations
9329
include instruction in the wearing of
appropriate personal protective
equipment, what chemical hazards are
Involved. and what duties are to be
performed. AU other appropriate safety
and health precautions provided to the
employer’s own employees shall be used
to assure the safety and health of these
personnel.
(5) Specialisl employees. Employees
who. In the course of their regular job
duties. work with and are trained In the
hazards of specific hazardous
substances. and who will be called upon
to provide technical advice or
assistance at a hazardous substance
release Incident to the individual In
charge, shall receive teRming or
demonstrate competency In the area of
their specialization annually.
(8) TrvJrdr Tr RinuIIg shall be based
on the dutie, and function to be
performed by each responder of an
emergency response organization. The
skill and knowledge levels required for
all new responders, those hired after the
effective date of this standard, shall be
conveyed to them through training
before they are permitted to .take part in
actual emergency operations on an
Incident Employees who participate, or
are expected to participate. In
emergency response, shall be given
training in accordance with the
following paragraphs: -
(I) FYzst responder awareness level.
First responders at the awareness level
are Individuals who are likely to witness
or discover a hazardous substance
release and who have been trained to
Initiate an emergency response
sequence by notifying the proper
authorities of the release. They would
take no further action beyond notifying
the authorities of the release. First
responders at the awareness level shall
have sufficient training or have had
sufficient experience to objectively
demonstrate competency in the
following arena:
(A) An unders’andlng of what
hazardous materials are, and the risks
associated with them in an Incident.
(B) An understandIng .f the potential
outcomes associated with an emergency
created when hazardous materials are
present.
(C) The ability to recognize the
presence of hazardous materials in an
emergency.
(13) The ability to identify the
hazardous materials, if possible.
(E) An understanding of the role of the
first responder awareness individual in
the employer’s emergency response plan
including site security and control and
the U.S. Department of Transportation’s
Emergency Response G’ifdeboolc.
(F) The ability to realize the need for
additional resources, and to make
appropriate notifications to the
communication center.
(ii) First responder operations leveL
First responders at the operations level
are Individuals who respond to releases
or potential releases of hazardous
substances as part of the initial
response to the site for the purpose of
protecting nearby persons, property, or
the environment from the effects of the
release. They are trained to respond In a
defensive fashion without actually
trying to stop the release. Their function
Is to contain the release from a safe
distance, keep It from spreading, and
prevent exposures. First responders at
the operational level shall have received
at least eight hours of training or have
had sufficient experience to objectively
demonstrate competency in the
following areas In addition to those
listed for the awareness level and the
employer shall so certify
(A) Knowledge of the basic bawd
and risk assessment techniques.
(B) Know how to select and use
proper personal protective equipment
provided to the first responder
operational leveL
(C) An understanding of basic
hazardous materials terms.
(13) Know how to perform basic
controle contIinm nt and/or
confinement operations within the
capabilities of the resources and
personal protective equipment available
with their unit.
(E) Know how to Implement basic
decontamination procedures,
(F) An understanding of the relevant
standard operating procedures and
termination procedures.
(ill) Hazardous materials technician.
Hazardous materials technicians are
Individuals who respond to releases or
potential releases for the purpose of
stopping the release. They assume a
more aggressive role than a first
responder at the operations level Ira that
they will approach the point of release
in order to plug. patch or otherwise stop
the release of a hazardous substance.
Hazardous materials technicians shall
have received at least 24 hours of
training equal to the first responder
operations level and in addition have
competency In the following areas and
the employer shall so certify:
(A) Know how to implement the
employer’s emergency response plan.
(B) Know the classification.
identification and verification of known
and unknown materials by using field
survey instruments and equipment.
(C) Be able to function within an
assigned role In the Incident Command
System.
fD) Know how to select and use
proper specialized chemical personal
protective equipment provided to the
hazardous materials technician.
(EJ Understand hazard and risk
assessment techniques. -
(F) Be able to perform advance
control, containment, and/or
confInement operations within the
capabilities of the resources and
personal protective equipment available
with the unit.
(C) Understand and Implement
decontamination procedures.
(H) Understand termination
procedures.
(I) Understand basic chemical and
toxicological terminology and behavior.
(iv) Hazardous materials specialist.
Hazardous materials specialists are
individuals who respond with and
provide support to hazardous materials
technicians. Their duties parallel those
of the hazardous materials technician.
however, those duties require a more
directed or specific knowledge of the
various substances they may be called
upon to contain. The hazardous
materials specialist would also act as
the site liaison with Federal, state, local
and other government authorities in
regards to site activities. Hazardous
materials specialists shall have received
at least 24 hours of training equal to the
technician level and In addition have -
competency In the following areas and
the employer shall so certify: -
(A) Know how to Implement the local
emergency response plan.
(B) Understand classification. -
identification and verification of known
and unknown materials by using
advanced survey Instruments and
equipment.
(C) Know of the state emergency
response plan.
(DJ Be able to select and use proper
specialized chemical personal protective
equipment provided to the hazardous
materials specialist.
(EJ Understand in-depth hazard and
risk techniques.
(F) Be able to perform specialized
control, containment, and/or
confinement operations within the
capabilities of the resources and
personal protective equipment
available.
(C) Be able to determine and
implement decontamination procedures.
(H) Have the ability to develop a site
safety and control plan.
(I) Understand chemical, radiological
and toxicological terminology and
behavior.
(v) On scene incident commander.
Incident commanders, who will assume
control of the incident scene beyond the
-------
-ISO .. - - t r ’ R J VaL&4, No.421 Mood Maxth £- I ‘
Sat z .. .d .. s.
receiv at least Ziheureof 1r hd..g
•equal to tha Sat i..ps.u t a. operations
l.,.l and to aditlonba,, Iu pAiniey
lath. following areas and the employer
thalisocerdfy
(A) Know and be able tohepl.u.au’s
the employer’s
how to Implement the
sad risks asuoctated with employ...
working in 1C 51 protectiv, ole
(0) Know bow to Implement the
emergency response plan.
( E) Know of the state smarguacy
r 9PI.1ae plan and of the Federal
Regional Response Team.
(F) Know end understand the
importence of ducon’ ”4 dco
piucadinu .
(7) Truinwe. Trdnsrs who teach any
of the above .kJ.j subjerja shall hive
satisfactorily completed a hib g
coorse for h4ug the subjects they are
to teeth. such as the uiarus
oUsred by the U.S. Fir. Academy or
they shall have the andjor
acaaiain4e aedsatlals and Instructional
experience r ’ery to demonstrate
competent thstructl ’vnal skills and a
good ma i I ci the subject mattsr of
the sow.. . they ax. to &
(S)R abth ($)Thous
who arutrst d In
wto AaedIh petugr.pk ( q (S ci tide
r4on . halha .L, a iuIr..h.
_I J_gfuad dat n _ ( au
duration to ml..i i_i a,
or shall dauni tr .te omepata , to
those ameent Iessty..dy
(llJA shillb .a ad,dth.
m -jandifa
sW—’eat of mpt. ..cy to “ -du . the
employs, shell keep a rsuuril of
oy used to demonstrate
_ __and
‘ii t a. (1) Liewbeve clan
mrili d and designated RA AT
teem end bamadova materiel.
specialists shell a beasihie
physical 4 ” -Ucn sod be provided
with medical serv.IUancs us required In
paragraph ( I) of this section .
(ill Any ewerjiiicy response
employees who exhibits signs or
symptoms which may have resulted
from exposur . to bawdous eubstanc-.
dusing the course of an emergency
j ’ 1 ”L either Iunn.dlately or
subsequently, shall be provided with
medical wumiltatlon as required In
paragraph (1 1(31W) of this section.
(10) Chemical p,vteciivv ththing
- cd protective dotldng and
____to be ussd by organized and
ds.IgnatedHA 4AT team member., or
to be used by hawdous material.
specistist shall meet the requirements
ofpsragrspbsfg)(3)throvgh(5)ofth ls
(11) mwgency response
ope,adans. Upon &uspi.t1Ofl of the
emergency response . If it Is determined
that It Is necessary to remove hszardoaa
substances, health bawd. and
materials conI —bated with them (such
as conf.i th tsd soil or other elausants
of the natural environment) from the situ
of the Inuldent the employer p dn 1lng
comply with one of
(I) Meet all of the requirements of
paragraphs (b) through (o) of this
‘ectiomor
(Ii) Where the clean-up Is done on
plant using plant or workplace
employee., such — shell have
completed the af,th.g reqthemeets of
the foIIowthg a R inm.31(a)
1910.134 191O.1 and o
a ,date safety and
made necessary by the tasks that they
areuxpactadtub.p iL . &dsath.e
— otsctks and
decontamination All
to be used In the
performance ci the clesniup work shall
be in serviceable condition sad shall
be ,. been hiapactodp .lortoea.. .
wArn * i m a
1 a t
_ 5-tps.to.sulØ -
— ; ---; _ _ -— . to -
stthls -
-
cilaed Asod [ awl I P p - ’
-_--*_r——--.ip. _- —__I_,. ._
Te r n
This ‘r- - th the -
mssds y .‘sftsstswblchm*ybu
m md to eashotu - i”—wtth
(ilK) lilised Iii). other tests and other
y be ed to swIms.
A. 1 k— ’ ta dss
coal——.--— ma
copo
U 1 isprscWn.s -.. eblitjofa
Sate
psute itva suit mw-saL non ddsaw
to - ‘tIne Sued psiOus ,. lb.
. ..Hsof this — allow the gus tight
tnt,ft. 7 ste
prersetivu suit to be evelestet
1.2 Pseto$ of the wit materials to
__ ___ W
deteruilned by t I n . ma method.
2.0-Osfisition of term.
2.1 Thtel co ubwl I
a Sill
body pn. i. is gu 5J of
II0t &1I4w cI thts milmieto aw.th.
wesres’s tree, bead. a legs 5ed
. ...,I ton may c ase y the aed
fast with dghdy sasth.d gloves sea
— — the and
rssp. ..ror by itesit or to combiseries with
wssrer s ovus and boos..
2.2 1!r .4,uiv . CbshiiVaUs.- . .ui—. .
any material or Uoo of mi.tensls
used In in Item of ’ 4 stbleg fur thu pwpos.
IsoIaths pelts of the body from direct coats
with a potentially hazardous liquid or
guam ‘ —“ -Ia .
2.3 Ver o hr means. forth, puipos . of
this test method. the lImited flow of a gee
raderj,nawu from the lesid. sla TE ii
to s ’rs at aprii .bed p., and
lime L
2.0-Summary of list method
3.1 The TE wit Is visuslip Inspected en.
forth. test. Ths ma spperutm le
a” hi ’ to the at to permit Inflation to the
pru .test suit avp. .i..I removal
of suit wrtnklsa end cusses. The guam I.
is thu ma 1 ... and monitored
for ste .. 1 i m If the , diop.
— ve . th.T eat fail. sh. ma end n
z Soni -ivI - .Theattorepsatsd
ek _andregeto
tO-L 1 .J.- !
41 Sam of e. ...,. _ s i air.
4.2 Test . r* - ho wit t ’ffig , i ln
5 pr• — iu.nI . d.etoe with a
s thtIy stat but ? _____
4.3 Vast vale. dam. plug. Sa 1 tsp.
l4iiepp matr solstice sad seftbub.
4$ Step wamb s,epguptiato Ms -
$4 s sha l l tebutoge. .SI.
_ Ist. __
ftO WNCI . ,.. -
4$ Filer tessth at. the
p _ iL. a vtrsI tearC’ ’ sI$swiL th
thewirf seemki.iipbyetrsDy
. -‘
di. n . — — ,_,
ftt . visor. sippers . isir.. . we M i - .
andâoernsuigssafLiml - .i ...
4.1.1 SseI the eat euIi.ss with
any ether a..iaal bu wt patois
(soth as — ‘ - ‘ air Ito. ittIajs orfase
pies, opining ) with tepsurothoeppraprissu
- L plogs. Sutrs. sto Cs.. should
be lath. se.thtg uw..ê Dot $0
Aa.uuge any of th. suit c-
52.2 Coos .11 dooms ‘ ‘ -
LU Prepare the suit for toflatioa by
providing aa L..lh ..vI.4 — on
the suit Ior - —r’-.g an . Attach the
presew. ma sppsleme to di. wit to permit
suit Inflation from a ..., ,.,...4sir sarca
. quippsd with a _ ra lndi ,si regulator.
Thu lash tightases of the at
. ,,si.c.s should be tested liafous end after
oath at by dosing off d i . end sf the tubli ll
scathed to the suit and emoting. pressure
of three Inches water gangs far three mutes
mobs i ,.d . If a . “mposcot to
. ...-sed fur the test, that shall be
raplsasd end a second test . .wk 4ed wr*
another Q’mpousw removed to pm*t a
niptts test oldie sm ,
0.1.4Thu prs4s.t Ep ’ . —
sad th. wit ma , ,vam (B) shall be
supplied by the wit m ’-fcturer. but i..
-------
Federal Register / Vol. 54. No. 44/Monday. March 6. 1989 / Rules and Regulations
9331
case shall they be less tharn (Al = . three
inches water gauge and (B)-two Inches
water gauge. The aiwling suf I pressure (C)
shall be no las. than 80 percent of the test
pressure (B) Li.. the pressure drop shall not
exceed 20 percent of the test pressure (B).
6.1.5 Inflate the suit until the pressure
inside I. equal to pressure (A). the pTa-test
expansion suit pressure. Allow at least one
minute toSil out the wrinkles In the suit.
Release sufficient am to reduce the suit
preuureto pressure (B). the suit test
pressure. Begin x .lng At the end of three
minutes. record the suit pressure as pressure
(C). the ending suit pressure. lit. difference
between the suit test pressure and the ending
suit test pressure (B-C) shall be defined as
the suit pressure drop.
6.1.3 U the suit pressure drop Is more than
20 percent of the suit test pressure (U) during
the tbreeinlnute test period, the suit fails the
test and shall be removed from service.
7.0—Retest Procedure
7.1 U the suit fails the test check for leaks
by Inflating the suit to pressure (Al and
brushing or wiping the entire suit (Including
seams. closures, lens gukets. glove.to.aleeve
Joints. its.) with a mild soap and water
solution. Observ, the suit for the formation of
soap bubbles, which Is an indication of a
leak. Repairall Identified leaks.
7.2 Retest the TEQ suit as outlined in Test
procedure
8.0—Report
8.1 Each TECP suit tested by this practice
shall have the following Information
recorded:
8.1.1 UnIque Identification number.
Identifying brand name, date of purchase.
material of construction, sad unique fit
features. e.g.. special breathing apparatus.
6.1.2 The actual values for teat pressures
(A). (B), and (C) shell be iecurded along with
the specific observation times. If the h g
pressure (C) is less than 80 percent of the test
pressure (B), the suit shall be i t .i tlfl d as
failing the test. When possible, the spedllc
leak location shall be Identified In the test
rde . Retest pressure data shall be
recorded as an additional test
6.1.3 The source of the test apparatus used
shall be Identified and the sensitivity of the
pressure gauge shall be recorded.
6.1.4 Records shall be kept for each
pressure test even if repairs are being made
at the test location.
Caution
Visually Inspect all parts of the suit tube
sure they are positioned and
secured tightly before putting the sull back
Into service. Special care should be taken to
examine each exhaust valve to make sure It
Is not blocked.
Care should also be exercised to assure
that the Inside and outside of the suit Is
completely dry before it Is put into storage.
B. Totolly.enccpsulcth,g chemical protective
suit quoJitative leak test
10—Scope
1.1 ThIs practice semi.qualltallvely teats
gas tight totailyasicapsulating chemical
protective suit Integrity by detecting toward
leakage of ammonia vapor. Since no
modifications are made to the suit to carry
out this test. the results from this practice
provide a realistic lest far the integrity of the
entre suit.
1.2 Resistance of the suit materials to
permeatLrn. penetration. and degradation Is
not determined by this test method. ASTM
lest methods are available to test suit
materials for these characteristics and the
tests are usually conducted by the
manufacturers of the suits.
2.0—Definition of terms
Li Togally.encopsuJctedcheJJ7iCol
protective sine I7ECP suit) means a full body
garment which is constructed of protective
clothing materials; covers the wearers torso.
head, arms, legs and respirator: may cover
the wearer’s bands end feet with tightly
attached gloves and boots; completely
encloses the wearer and respirator by itself
or In combination with the wearers gloves.
end boots.
2.2 7rotaciive cJothi g materiai ’ means
any material or combination of materials
used In an Item of dotbing for the purpose of
Isolating parts of the body from direct contact
with a potentially hazardous liquid or
gaseous chemicals.
2.3 “C c , tlghr means. for the purpose of
this test method, the limited flow of a gas
under pressure from the inside of a TECP suit
to atmosphere at a prescribed pressure sad
time Interval.
2.4 “Intrusion Coeff icient ’ means a number
expressing the level of protection provided by
a gea tight totally.encapsulating chemical
protective cult. The Intrusion coefficient Is
calculated by dividing the test room
challenge agent concentration by the
concentration of challenge agent found Inside
the suit The acceracy of the Intrusion
coe dent Is dependent on the challenge
agent monitoring methods. The larger the
Intrusion coefficient th . greater the protection
provided by the TECP suit.
3.0—Summary of r.o wmn led practice
3.1 The volume of concentrated aqueous
ammonia solution (ammonia hydroxide
NH.OH) required to generate the test
atmosphere Is determined using di.
directions outlined In LI. The suit Is donned
by a person wearing the appropriate
respiratory equipment (either a positive
pit... .r self.coatained breathing apparatus
or a positive pressure supplied air respirator)
and worn inside the enclosed test room. The
concentrated aqueous ammonia solution is
taken by the suited Individual into the teat
room and poured Into an open plastic pen. A
two-minute evaporation period Is observed
before the test room concentration Is
measured, using a high range ammonia length
of stain detector tube. When the emmonla.
vapor reaches a c ” ”ov ’tratlon of between
1000 arid 1200 ppm. the suited individual
starts a standardized exercise protocol to
stress and flex the suit. After this protocol Is
completed. the test room concentration Is
measured again. The suited individual exits
the test room and his stand-by person
measures the ammonia concentration inside
the suit using slow range ammonia length of
stain detector tube or other more sensitive
ammonia detector. A standby person is
required to observe the test individual during
the lest procedure: aid the pers.m in donning
and doffing the TECP suit and monitor the
suit interior. The intrusion coefficient of the
suit can be calculated by dividing the average
test area concentration by the rntenor suit
concentration. A coiorimetnc ammonia
indicator strip of brotnophenol blue or
equivalent Is placed on the Inside of the suit
face piece lens so that the suited individual Is
able to detect a color change and know If the
suit has a significant leak. If a color change is
observed the Individual shall leave the lest
room immediately.
4.0—Required supplies
4.1 A supply of concentrated aqueous (58
percent ammonlum hydroxide by weight).
4.2 A supply of bromophenollblue
Indicating paper or equivalent sensitive to 5-
10 ppm ammonIa or pester over a two-
minute period of exposure. (pH 3.0 (yellow) to
p144.8 (blue))
4.3 A supply of high range (0.5-10 volume
percent) and low renge (5-100 ppm) detector
tubes for ammonia and the corresponding
sampling pump. More sensitive ammonia
detectors can be substituted for the low range
detector tubes to improve the sensitivity of
this prsctice.
4.4 A shallow plastic pan (PVC) at least
12’.14 :1 ’ a nd a half pint plastic container
(PVC) with tightly closing lid.
4.5 A graduated cylinder or other
volumetric measuring device of at least 50
milliliter. In volume with an aonrrscyof at
least ± I milliliters.
5.0—Safety precautions
8.1 Concentrated aqueous ammonlira
hydroxide. P414014.15. corrosive volatile
liquid requiring eye. skin, and respiratory
protection. The person conducting the test
shall review the MSDS for aqueous ammonia.
5.2 SInce the established permissible
exposure limit for ammonia Is 50 ppm . only
persons wearing • positive pressure self-
contained breathing apparatus or a po ltive
pressure supplied air respirator shall be In
the chamber. Normally only the person
wearing the totally.eecapsuladng suit will be
Inside the chamber. A .tsnd’by person shall
haves positive pressure self-contained
breathing apparatus, or. positive pressure
supplied air respirator avsllable to enter the
test area should the suited Individual need
assistance.
5.3 Ametllodlomonltorlhe$Wted
individual must be used during this test.
Visual contact Is the simplest but other
methods using communication devices are
acceptable.
5.4 The test room shall be large enough to
allow the exe dse protocol to be carried out
and then to be ventilated to allow for easy
exhaust of the ammonia lest atmosphere after
the test(s) are completed.
5.5 Individuals shall be medicaily
screened for the use of respiratory protection
and checked for allergies to ammonia before
participating in this test procedure.
6.0—Test procedure
6.1.1 Measure the test area to the nearest
foot and calculate its volume In cubic feet.
Multiply the test area volume by 0.2
milliliters of concentrated .queous’ammonla
solution per cubic fool of test area volume to
determine the approximate volume of
-------
list. ? “ ° ‘ I VoL 5’ No g / .jr,Mw . i i stI I
conmssbstsd is.,.ifr.J to
-.
tu; )Lr. Ibto vubsas a *0 supp
d plus.
it toti 6 An Aplutto
8.2.3 nasa thsL
£ 44 55t tubes, and th pissp
in tbodu . tompa.aadlscatolt sees the
that thewitsd
kiJM iaIbss easy i-i to thus. si pllea
8.8.2 to a non .v—I.tithItd
a pusisslud ‘ ‘ stop
and b. sad if th. atop to the Iwid,
of the wit foes bald less whure hess be
seen bp”ths wu. ‘doleton the
stop with 4hathllsd wa . Cans shehib. takes
notto —‘ to*0 pset i f the
ti. A mosS plea,
i f
to aitsak lb. ‘estpto lbs L. of
lb. wit Is ..
822 U,i1111 _ t& with
this —*04 if..”—’-— *0 c.tsr stop
can b._r±_ to*0 subs
—
lb.
6.3 = thi Pi O1 diiL.&
wIth *0wi$. and thes dan *0
all
IIJIUII wtoth irs to be sailed
(_L — j ss ,
DONOTI pl danyv.Ii
valves,.
6.4 lisp k.s.ths roam soak
ant st..balL...... si tootbooth, .quIp ,sd
with as.ttbsnot fa a . N.afr shoaldbs
-‘- ‘- — *. twi
. 1 _n_ I. -
U!s0
—
- N.LtI l t ous aad
p thsS*0 toot
pam — - N lsw f a W
- . — -
neui’*0, M panto *0
L ._
6.4 Alba’Iws
tb. —‘ .‘. a —-- , lb.
c. .Ld. . . . ..i*a ±
lomp — - ce satsrsh iilbs
— b.L the sisaWse are starto
6.7 Totwi*0toleçtysftbssa*th.
6.7.1 buss the above lbs head
with at tarot 15 ra Ising motimo to
- —4---”—-
6.72 WaMng laploas fa.en. -‘ -‘a- wOk
at least 15I*iSLng mn .disth Ing to.
os winsW —
6.7.3 Ta-’ 4 th ,tawtthelesstl
coupteto mellass if *0 umo k above lb.
beed to I, , , ,i . if lb. toss to a eos- ”
—
6.74 Knee beads with at least 10
(,ouplets v . db and squatseg motions a.
osa _
6.8 lfatsytimedieiothstaettb .
ssdng pups. iboabi thing.
colors, lb. toot be .L .,,ad and iwO.i’
5.10 a.d*i2 4 ”- d (8se U).
U Aftif if*0 toot
the taut area - ‘st b.
m.asu.d — uuWib . lo esagi
tiL.i4. _ I 1 L . J.t...1 s.
610 lift lbs toot ursa.
0.11 The p 4 oreatad by lb. tot
— — othur appropsiste salt penovudes
. hi l&l be used to 4 litL .e • 1RflHNd
cou.ns.des to thu wit with lb. townssge
length of stain d.laeioi tube — .*0r
s n _ I Tb. l 1S tot s
absuIdb.nsp I sdfarono u fr m oth .
sar kP1l test srsai. piamela tale.
031 Aflsroassple*0 sIlks
of*0 wit —“ - ‘ —— ssben
*0tsdtoo ”d -‘aM*0totlsA.
and the s.,tator L
8.13 The vesdustiag fan he lbs taut room
obo sblb. s e n Js a dsUsws dtoisahe
— *0s to *0 — ass. lbs
heaheUbs dMtu*0n e’ d*0
bnt __________to
Interio r (five pp )Ii ) — more he
the length of stain tabs) todmonses
that lb. tot be. faIled *0 taut. Whes other
-.me sdeiow e r
dstoudsaiy — aidS
6.15 5yIshlsmiog*0toot es .
mcub.rwwitoth *0totina.?
cmoplstsiy oporadsssl U — Ilk.-
wit to 0 j..ha . - ei _ 0 a i.jii— _ a . sad
Bald me.
7.0 .—Rutsut
74 V*0Dsthhstoel,thsthhe
lesksbyfdfluwiog*0,u tostisinotA
73 Rs ths1 witaiuj- ”4ioths
test c s6O.
1.1 Ruth pus d d totoflp .amep..iatiq
. 1. s eswi o etot t uut .dbyth t o
___ the — h d
aLi t —” —
dmI.. imeIt dato
md —L.L d
fea sors, 1J
113 C 1 A....*duesif test seem
vend he Net.
5.2.1 tosad . d purthase datoif
—--‘ ____
11.4 s. ,llnrsop. tad
expiredon dais af*0 )uogth of slain
anmcds d.4s tubes. The bead sesi.
and 01 ike - . . .,4L4 pump abash also
be esoudad . If another
dstscior toissi. It ± bs ° abel
with IN — i-’—— fov
0.2.5 Actual a shall list the two
test sins ssftsdom , thoti . .. the
hatulor salt %—Lth , — *0csladstad
hansel .. P- - dua . shell be
recatdsd as on additional toss
1.2 Tb. .vebetlanof lb. data shell be
sponfled a. sult passed’ ‘side failed.’
and the dat, of th . ties. Any datii -M.
(five ppu eutorhe lbs lsetk
ifstsMdass tabs) to *0S
indIcates the salt baa fallad this test. When
other lV-’ —s reused. a lome
level at deteed Is possible audit shoul
spsdflsl& oaths pass fed urSula.
Visually inspect all pert. .1*. sell to be
sure they are p uns y sad
seemed U tly .. , tUa$ the salt bsck
hats au,ka. 0 imtiel ien Jd be takes to
..- -- a.ch si’ 1 ’ valve to u.k. sure I i
Ii not t*’rhet
Cs .. .kwid ek . be smodsed to users
thus the Suds and outside of thu tot to
ssiythybthc.ht l eputI nt e stsia s .
r-
This — to faith toformadon abeot
i il ilvv ’r l
towhithmeyhenssdto t
. . _ ,.L, _ to tothlbe
r.., .k 5IddS
Asie.,.rk.dbvthe tPP!mosIbe
__ mdi — . , a hum
the sps k6..ida whisk they vs Ikaly to
- dung *0frm
_______wioth into
tlk .. . a , ..d iyif6cNes. Key Isikiis
LJ , ...—‘ mo” ’ donif
*0 _ li..J. . th*
, .g, to. L .,..m
— h Uam te 5 ..& i .e
eye du ’’ib a.d*0 p — 5 -- —“if
, .smo )M l s
b. ,Merto these b ...id&lbs it
t0 ___
1b.tto , .aulvs ,J 1 ,..J
i -- sad p..iulp . s.nciui
aU. fo ny 5. -- -.
, .Juthe . . 1 - 1 F--- _ k “be
will prov1ds- --I
ham *0 , ...tk..l.. ba. .iL
. Jjsl.. . Is due c the la .i.& ....,. .
01 the , . ,,toetivs materiel ±: 4
lbs work j __ iL __ sr*0 situ
btss&tI _ ...ja amyto pose-s k... J... .
Olberfactsis Indu ....o..mtobe
“ sd are — - ‘- “g the PPb to the
. ,,huyws work L-- ’ sad .
a _ nc — The derabthtyifFPb
mataitek i.e as tsar stasngth and esam
. 0 . 4th. sbu— 1 be-- ‘—ed in relation to
lb. employee’s tasks. The s&se if
relation tu best eta ,.. sad teak deradea area
facts. In 4 ’IW and veins is some
come Ia us. of P amy be nsia.wy to
proud. ev ertoprotsU
hans. -- — . salts or
1 e more that I. boners about the 4e
at the site. the an s i ’ the $ob of PPR eslc”’
b.r As me. infatuation eheut the
hamad. sad condidoss at the situ be-
avadabhs, the sits . .., .ivLsai can asks
dedsions to up-grads ordoua-grad. the level
of PPE pruIa *loa to mu.e the tasks el hand.
Tb. following are r” 4 ’ ’ erbith an
employer me use to begin the salsrtP ’ ’ of the
a,., . . 4 .ilats W I. Ag voted above. the sits
info rmation may the use if”
____ if WI euluctad hem the
dIU... .1 protection levels (U.. A. I. C, olD)
u being mare suitable to the of the
-------
Federal Register I Vol. 54. No. 42 I Monday. March 6. 1989 I Rules and Regulations
9333
work. ft should be cautioned that the listing
below does not fully address the performance
of the specific PPE material In relation to the
specific hazards at the job site, and that PPE
selection, evaluation and re-selection Is an
ongoing process until suMclent Information
about the hazards and WE performance Is
obtained. -
Part A. Personal protective equipment Is
divided Into four categories based on the
degree of protection afforded. (See Part B of
this appendix for further explanation of
Levels A, B. C. and D hazards.)
L Level A—To be selected when the
greatest level of skin, respiratory, and eye
protection Is required.
The following constitute Level A
equipment It may be used as appropriate
1. Positive pressure, full face-piece self-
contained breathing apperaws (& A), or
positive pressure supplied air respirator with
escape SC M. approved by the National
Institute for Occepetlocal Safety and Health
(NIOSHJ.
2. Totally.encapaulatlng chemical-
protective suit.
3. Coveralls.’
4. Long underwear.’
5. Gloves, outer. 4 ” I-resistant.
e. Gloves, Inner. chemIcal-resIstant
7. Boots. chemIcal-resIstant, steel toe and
.k nk
5. Hard bat (under suit).’
a. Disposable protective suit, gloves and
boots (dep.ndlng on suit construction. may.
be worn over totafly.encapsulatfng suit).
U. Level 8—The highest level of respir.tory
protection Is necessary but a lesser level of
skin protection Is needed.
The following constitute Level B
equipment It may be used as ap v, date.
1. PosItive pressure, full-faceplece self-
contained breathing apparatus (SCBA). or
positive pressure supplied air re yl .tor with
escape SCM (NIOSH approved).
2. Hooded chendcel.reelstant clothing
(overalls and long-sleeved Jacket coveralls;
one or two-piece mlcal sp1ash suit
disposable cheinlcal.reslstant overalls).
3. Coveralls.’
4. Gloves, outer, chemical-resistant.
5. Gloves. Inner, chemical-resistant.
I. Boots, outer. chemical-resistant steel toe
and shank.
7. Boot-c ., .. outer, chemical-resistant
(disposable).’
I Hard hat.’
9. IReservedJ
10. Face shIeld.’
III. Lev-J C—The s w_..tratlon_(s) and
type(s) of airborne substance(s) Ii known and
the ariterfa forusing air purifying respirators
are met.
The following constitute Level C
equipment It way be used as appropriate.
L Full-face or half-mask. air purifying
respirators (NIOSH approved).
2. Hooded chemical-resistant clothing
(overalls: two-piece chemical-splash suit
3. Coveralls.’
4. Gloves, outer, chemIcal-resistant.
‘OptionaL ee applicable.
S. Cloves. Inner. chemical-feels
a. ‘oots (cuter). chemical-resisi
and shank.’
7. Boot-covers, outer. cheinlcal-teslstant
(disposable)’.
8.Hardhat ’ -
a. Escape mask.’
10. Face shield.’
- IV. Level D—A work uniform affording
minimal protection, used for nuisance
con$g. in tion only.
The following constitute Level 0
equipment It may be used as appropriate
1. Coveralls.
2. Cloves.’
3. Boots/shoes, chemical-resistant steel toe
and shank.
4. Boots. cuter, chemical-resistant
(disposable).’
5. Safety glasses or chemical splash
gogg les.
0. Hard hat.’
7. Escape mask.’
a. Face shield.
PaztB The types of hazards for which
levels A.B. C. and D protection are
appropriate are desoribed below:
L Level A—Level A protection should be
used when:
1. The hazardous substance has been
Identified and require. the highest level of
protection for skin. eyss,snd the respiratory
system based on elthef the measured (or
potential for) high concentration of
atmospheric vapors, gases, or particulates; or
th. site oplratlons and work functions
involve a high potential for splash.
Immersion, or exposure to unexpected
vapors, gases, or particulate. of materials
that are harmful to skin or capable of being
absorbed through the skin;
2. Subet n with a high degree of hazard
to the skin are known or suspected to be
present, and skin contact Is possible or
3. Operations are being conducted In
confined, poorly ventilated areas, and the
absence of conditions requiring Level A have
not yet been determined.
IL Level 8—level B protection should be
used when:
1. The type and atmospheric concentration
of substances have been Identified and
require a high level of respiratory protection,
but less skin protection;
2. The atmosphere contains less than 19.5
percent oxygen; or
3. The presence of Incompletely Identified
vapors or gases Is Indicated by a direct-
reading organic vapor detection instrument.
but vapors and gases are not suspected of
containing high levels of chemicals harmful to
skin or capable of being absorbed through the
Note This Involves atmosphere, with IDLH
concentrations of specific substances that
present severe Inhalation hazards and that do
not represent a severe skin hazard; or that do
not meet the criteria for use of air-purifying
resp ,rators.
III. Level C—Level C protection should be
used when:
1. The atmospheric contamif..nts. liquid
splashes, or other direct contact will not
adversely affect or be absorbed through any
toe exposed skin;
2. The types of air contaminants have been.
Identified, concentrations measured, and an
air-purifying respirator Is available that can
remove the contaminants: and
3. All criteria for the use of air-purifying
respirators are met.
IV. Level D—Level 0 protection should be
used when:
1. The atmosphere contains no known
hazard and
2. Work functions preclude splashes.
immersion. or the potential for unexpected
inhalation of or contact with hazardous levels
of any chemicals.
Note As stated before, combinations of
personal protective equipment other than
those described for Levels A, B.C. and 0
protection may be more appropriate and may
be used to provide the proper level of
protection.
As an aid In selecting suitable chemical
protective clothing. It should be noted that
the National Fire Protection Association Is
developing standards on chemical protective
clothing. These standards are currently
undergoing public review prior to adoption.
I nd udin
NFPA 1991—Standard on Vapor-Protective
Suits for Hazardous Chemical Emergencies
(EPA Level A Protective Clothing)
NFPA 199 Si nd2vd on Liquid Splash-
Protective Suits for Hazardous Chemical
Emergencies (EPA Level B Protective
Clothing) -
NFPA 1993—Standard on Liquid Splash-.
Protective Suits for Non-emergency, Non-
flammable Hazardous Chemical Situations
(EPA Level B Protective Clothing)
These standards would apply
documentation and performance
requirements to the manufacture of chemical
protective suits. Chemical protective suits
meeting these requirements would be
labelled as compliant with the a , ip iate
standard. When these standards are adopted
by the National Fire Protection Association, It
Is recommended that chemical protective
suits which meet these standards be used.
Appendix C—Compliance Guideline.
1. OccupationoiSofetyoridHeo!th
‘ogmm. Each hazardous waste site clean-up
effort will require an occupational safety and
health program headed by the site
coordinator or the employers representative.
The purpose of the program will be the
protection of employees at the site and will
be an extension of the employers overall
safety and health program. The program will
need to be developed before work begins on
the sits and Implemented as work proceeds
as stated In paragraph (b). The program Is to
facilitate coordination sad communication of
safety and health Issues among personnel
responsible for the various activities which
will take place at the site. It will provide the
overall means for planning and implementing
the needed safety and health training and Job
orientation of employees who will be working
at the site. The program will provide the
means for Identifying and controlling
workslte hazards and the means for
-------
9334 - -- Federil Regular I VoL 54. No 42! Monday, Marcfe 9. j Rules and Regulationa
WI — e1s U & The
will . . .d to cover the
rsspeaulbflItie . cad authadty of the eke
ansedleateror the , ugyLxpWi “ u on the
site ref the safety sad health of ploysss at
the eke. and the val pe with
connectors iri . auisas ante whit
each employ.. safety and heelth
______era for thafr emp(opem on the
eke. lath c akuctor on the site aside to
ha ,. Its own safety and health
u u tured that It wIU smoothly Interface with
the pze ne of the eke coordInator or
—
Mao s employma Involved with
or dL,oad of ba.aiAua .
waite as c.,... d Inps,sgsaph (p) must have
hoplmountud. aefstysaal health for
their employs... This ii to
the hawd —---- -- rs 11 .b.J
ta Ih...Viph (pal ) and the t..l . .. 4
In p.r K ?) a ad(pK$ ) a. pes t s of the
— comprehensive overall safety end
health prmp am. The prc am Is to be In
wntht
Each ilti or woekplacs safety and health
propmm will ossd to lucid, the isSawlnç
(1) PolIcy eta .1 the Ito. of authority
and a r-” 1 1 ly for ‘ r - s the
pr am.theob4aidmcfth.,i . . ... .and
the role of the sit. safety and health
iv*.orer’ ---ager and stan ( 2) mew an
methods for ths develcymont of , au dinea
for Id.UI end coaetcthng workplace
heserthat the Wr (3) ao or etethode for
the d,vslnpwit a nd b-—- ...J adsm to
employees if the vssiaee p4w . work voise.
steadied oyetetiz pr and preothuc
that pettito idMdudu.apL.yipuus end
_ .. _ vI. ..... 1Sath.h _ LL 4 ef
. L.. .. . ewi,ia .s.. to ,sL.p the
4 eed1 . ..isaMi s tojaL their
- — fij —
- --= to __ ttsip _ t. _ *u __ , __
— _ey l4wend
4h 4 &4 L..a3 - to
evuloatloy the ,.. .. aid for L.. g the
and laJ_e beeping
to l..., .. the e& ....u&of
the pr—, tk. , — -“g the , .-,‘-—-i
— J idM the.. . , LL .on site.
a. the .Ileworkpl.oe uheald
be Inviwigatod Is provide L.& atIoQ an
bow seth e. cee w be availed to thu
futwa. When Infers. ornIh w came on
the sits crwosbplaos. they will used to be
Investigated t. dsi I .a what seed. to be
done to , ....1 this l 4i4 fr
agaIn. Such Information will ne.dte be coed
as feedback an the ff.dU........ of the
— and the Information Into
poettiw — to , . .% any
Receipt .f employs , .i atdan . or
complaints relating to eafety sad health
liaise Involved with site or workplace
activities Is silo a feedbeck - — . ‘ ‘ that
can be seed effectively to Improve the
psvpmm sod map us ’s In part as an
evaluative tool(4
For the development sod Imptsmantstlon
of the propmm to be the moot effact*v..
professional safety end health personnel
should be seed. Certified Safety
ngh’-ets ,i — aaempl of professional
staten for safety and health tm ---guv who
will administer the employees pr
2. The itehoug for
employs.. euhfr to the .voela——-4 5 c i
pare eph (.)af this etandeed chould
addresrs the safety sad health bowls
employees ehuId speat to find on
hazardooa wiets then p sitom what ea teil
meeanus or ‘ -chith oas at, dff.ikvs for
those bowda whit endtmtsg
are . ffaaiv . In cherseterleing a1(V— S
v.t ,whet aLa an effsct s employers
safety end health preçam what a site safety
and health plan should hands on
ksthIng with personal proteative equipment
and dothing they may be iuqr -d to ow lb.
contacts ci the 0514* standard relevant to
the employees dots. and .rti—r aid.
emplay s respanelbIlitis. nederOSHA and
othariegolakese. S .p.rvl..ues will need
twining In th.ir,ep-- “UP’ saber the
safety and health aid ft. . .L t
siasa seth as the spill
(he__ ___
plan and other uses.
The — progeew toremplaps.
svbIeittoths.... k a.dparapmph(pl
of this standard ahasild addmas. the
— safety and
s’ _ IUySai the bowl
swislIlanos progeasa the 4wrds and the
uctula far such b that employees
asedtehowf e rths i rjsb d ot lesend
fn,u4th 5 ADiu . 1 iL.. i es
-
lbs t gaa _ . fo mp3ays -.
• dWdi __IPI*
_ r—- --. i. g .*e,.ci..kvth
of - : sm*e1 & ur a
wiha_ F
_ ia — at
__________ —
)4w { .,
rwlve.. Sab....&4ime
t h e t o,th-
el4. sis. r — ..hk, shc i be
. .D4 wh......... - - ‘ - ftiq,es dose
an ‘ - which ‘ ‘ an
slwhat wud..d and what dId not end bow
could the bidA.a be better h. iI1ad the next
te.maybecoum&sdu i te t . I n g time
For bwrdoa. esatwiule spr ” W
ci Muz s meterlalo
teams). the trJnL .g .basld Jthcos the as..
use sndlor’—”ig of th csl , . .i.cUn
doth totally moxpuk g su
the’- dlnd survuilka. pivgaam. the
standard opers pre...di ..e be the
hazardous mstedsle teem tnJ ng the see
of vk.dhul end pSichIufi equipowt and other
sub joct eras..
Othos,. and leaders who may be sxpeiM4
to be In charge elan ‘ ‘t should be fUlly
knowledgeabls of their ...p.y ’e Ineidont
— . ,. - They aloud know . 4w
and how to ebtato a—’ amo aid
be f ’ ..4i& - ’ with the local disftlcte emergency
, ,oiiu plan and the state wlpmgy
m p4
..paru. J aI experts or . .vowm.mal
experts that work with bazezdou. matsrlela
admir reyslar lobe, who may be sent to the
w t seine by the .bippu. manuf.ctors,
orgoversesunial .j y to advIs. end owt
the p.rson In charge of the ins4 i ebn 1
have ttsInlI on an bails, Th.fr
tistolug ebould thef lb. we and use of
persueel . ,1Sall w equipment lorludlag
resp l rltOtm knowledge of the tntLl.iit
awi pd .,it.m and bow they era to relate
to It and those areas needed to keep them
is their teepeattus field as Ii relates to
— and health Involving ep,c c
hazards.
Those thfllad .u t poreanneL such as
.,ãuysas who work for publIc weeks
aporescis who
operate IiILL ud tech.. ka. h.i.a ,
etc.. who may be celled to the some
to — WWFUI% aesistanci.
.lv M have at leant a safety and health
b”.flng before the of p fthI
or acteal These sh ill — I .,.,n
p.....-r 1 whi bees bean. pest of
—-q . . . . .pi p l o aesdd e notsoset the
th bs m ed.owe rs
cithe bawd. they face and be
prsvidsdd y , .s. Uvdothlas
Dà---- ’ ’ -
prt . ab.ld b,toIIusd to . ,vei&t
k..... ed.eitheatts, e i d msy e mlto
-- --- ‘yud._ eloteps.
an the level dk d aid the _ s
._ .: :toths i.d.D—
_______ i eI .l - —
—-
q.ifti . siuoss.geoW
-
- o f
ye .- bra. . bedJ he
-- ___ ___
. apOiw& to by -
In A ç’tI? V may homed be
In i ’ ag an — va
lonpeegesm . id’ the
U .S. Coasi Guard’s l”L “PolIcy G* ”
for Response to H. rdoua ( — - -- ‘
Re ” U.S. Deperteent if
Trsrwp- tatlcn. Weeblaglee. DC
____ (coMuflNSrMlaiuISo) In. good
for . eb11.k4g en affective dscostaalnat lon
plans. State., along
with deilgoated dIewicte within the state..
will be dsveloplng or have developed local
_,_, resycee. plan.. lbs.. state end
district plane should be utilized in the
. co.. ..cy response pleas celled for In the
standard. Seth employer should asmee that
Its emergency . -.9P plan Ia — .‘uble
with the local plea. The major 1 J . ... ...s
bsuig used ward In developing the state and
local dhetrtw plans Ia the Hararo’ovs
_ MoIenak EerergoncyMannwg Gu NET-
1. The current Ea.. ,...cy keeps..
Guidebook from the (IS. Department of
Transportation. OdA’s OIVi4TRECand the
Th e Service Emergency Menegement
Handbook may also be seed an essoers..
J the
-------
- . - -.....u.,.. ub. -
pk 1 & I yg 64o N.. 421 tid.y.Zs i k S. 1 R . . R edlom .
C.
—— . —--——-— —
. - -v
T w ___
‘l 1t dth .—
:.: -a to
the--_j,Øeniis,b., a 1li s &
rito
The ‘
-
leJkL - ‘
bfoIo c hazard. that may be enossatsindat
a bomr
Aa tok TLU.
— j
haznid s. sm
coni . . rII1m 5( -
___________ - ,—i - ‘ y .
The use of F?! can iteslf ...alu 1’ ’
workor’ cash as heat mass. pipsicel
5Ii Pr ‘ I S 5IL Sed
vtiio cap y, —-- - - - - “‘ - For
pv sftviflas. —‘p’t1--- ’ duthl
should be selected that LL an adequate
level of , -- -- — LL . . seor.gaute an.
as well a. under-piotuctlas. con be
hazardous and should be avatdsd 4i. .
paeuble.
Two basic obWllvu of say F?!
should be to . . . . the wearur from safety
and h.sItb h.zarde. and to p. .....L Injury to
the wesior hear L ct ass andlor
malfu nctiaacftheF? !.To ----r thess
a - vs - .— , ... .m sbe Id
— use. “ and
— “-tlon of F?! sad Ito datud
ti-I _ -I- ’
The written F?! ..,....m I’ ”1’ Include
pe eta . , .--- ss . and
guldelima. Coplea shield be mails available
to all . ..,ãuysse . end a..L..... . copy ld
be med. aveilable at the w .1t.. Technical
data on ai,—- —- ‘ mam mas
relevent regulations. and ot eseuntlal
information should also be collected and
0. Ina’denS - - -------‘Iayatam (ICS
Paragraph 1IIO.1*aJ(SUll) reqorres the
Implementation of en (CS. The (CS lien
or”—d approach to eff, 11veIy coattol and
manage opsintlons at an . ... giuq
The Individual to charge of the (CS Is the
santor effictal responding to the “ “ The
ICS Is not much different than the “ “ ‘d
poer approach used for many yure by the
file eervics. DurIng large complex fires
Involving several cutnp.”a . and many pieces
of apparatus, a’” ’ 4 poet would be
established. This enabled on. individual to
be in charge of managing the uzctdenL rather
than having several officers from different
companies . nak.ng separate. and sometimes
conflicting. decisions. The Individual In
charge of the and poet would deisgale
responsibility for performing various tasks to
subordinate officers. Additionally. all
commurjcauons were routed through the
commann post to reduce the number of radio
treilimassione end aIl mate confusion.
__s _fl S__. .__
— -
Is hop —’ d . .., - to dl
both
haza r i _ -
For n toJLU—LIn
charged op. -
the (CS.
- •
- ‘ to
.A_dliu1 .ey ’ -- ths
- _ s, J _ 4 _ s ma
. ....,L,— ( with , .,—. ,-‘. — ( .be
uptu,..arlIl 5 J OffiI&
dose..--
employees be II irted a. bath-up
- . —v
T•ffiui.L.li the sp.I&a of the the
foUow _‘—‘tom develop J..IL . a
sesafi ‘ ‘ eethu an tank
ttuch with a smell Isek of ----—“ -
The first s cr
Implement and tub. - ‘ of ES.
That p sco would
detsindas If . .i1IiI 1 p-.—- - and
app.a wore — j 1 . .Jd & 5 ___ L _ .
what ‘ - “ to t.k.to utall the Iealu
the , ... level olpommal
liFGtlVS if Id&ILoraI t. .- .
is not needed, the lndMduel . h i ,a of di.
(CS would hnIi .e . rttImato atop and
contiol the leak using the f.....st of
- ---a that can - f --U,..1, - - -
tasks The Individuel to charge of the ES
then would IL4giL1& hIm.- ’ as the . Ji.ty
•Mj ’ and two other . ....,loyss . ass badciop
In mae may In
semerlo. _ILdon, . dI s. would
notber
A larga nn.qJiaII may . .quhu
many — and time-
. —.. Ing ..rta to kul . In this.
situations. di. lidividuel to charge oldie (CS
will want to ‘-rtu flUa i teaks to
subordinates Insider to u’- ’ — a span of
coattol that will hoop di. u 1 b ’ of
subordinates, that ma . .,asthig . to.
____level.
Delegation of tech at large ‘ -‘ ‘to may
baby location, whore the 1ns1s t somali
divided Into sa iu . and subordinate i’ 1 =s
coordinate activities within the sector that
they have been ‘‘gi’d .
Delegation of tasks can ale. be by function.
Some of the fn. .i* that the IndIvidual In
charge of the (CS may want to .‘vte at a
large • arm ‘ —dial matcesi
evacuadosi water supply:
(eq .tp i app.ratla) 14 . gelab onn
safety: and, site canvel (Integrate activities
with police for . ..,..d and tiaffic controll.
Also for a large h .rIiiSit , the Individual In
charge of the ICS will designate several
employee, as bask-up persooneli sad a
number of safety officers to mentor
conditions and recommend safety
precautions.
Therefore, no matter what size or
Complexity an lnaml.nt may be. by
In iple inenung en ICS there will be one
individual in chat ye who arakee the decisions
and gives directionsi and, all actions. and
commuwcatious are coordinated through one
omtwlpd r ’ Sathe.,.’&—
should radma _ I - -
mu--’— and maidinate ‘ ___
facilitate -
in•• -
‘- Site 5çjbty C of . l aduty
andss d’-p- ,—
others to of onem-, u
1n ‘J---’site----—--”b.d,.l....iy nto
th.L_ 1 _i 1 sIa
safe ilomlol plen gisedy —
those to sharp. daite , die 4y
heddi of a , asdi. olto.
A 1 . ,.-’—-’. siWufety and I.J
p ” J ’ feIow
ana1yslidhi... iIson di. elteenda risk
e....Zpsi . of thom de site map .butth
site w (dean or
- _ - 1 5. work bet somb use
— p or---—--- ’ — ‘-., v—”-’d
operating paseder and safe werk
piU{°- 01 Ak.I f
hazard mmatowig plan
. . __ .LhA liI$ eto.k &—‘---- --
and oresi and other relevant
areas.Th.plens be a pert of
,L,iu - .-- —‘plsaor en
— , —olltto spemflaelte .
S. Wich
h h..J . ar — nap b
____ &iPI safety - “-
hI In ! bamadu. and radiation. Tharuf are. a
ms ”— 1 rsu ’ 11 Is — to
— and alterwsiks’ health and
fitness fur employment In haraidses waits
opurstiuns and ñmk,g of to
povId. ---- y and o ttsa a.
ad- 4 d end to keep a..to a -4s he
futwe . J..
The O.. , ‘‘Safeiy IIa.
Ct . Mavedfr,JI .m_J._ Wt. Sit.
AcWWUor l . ’ by lbs Nailmal hedlite
for 0.- . , lionel Safety and Hss1*k(M fl.
the 0 p Safety and Hedik
AIsteadon (0 51(A ). the U.S. Co-
Guard (US ). and &iwl. -
Protecilen Agency (CAb O l ker 1180
provides an “r ’ i tppes af
unedlcsl I..ttng that sho be dune as part of
a ’ ’ 4 ” — 1 sur,ullance program.
- D—Rafesescus
The following references may be consulted
for further Information on the subject of this
standazth _
1. OSHA Instruc’ 4 ” DFO . 2.70—
January 20.1561 $pecial Lagihaith Prugium:
Hazardous Waste Sites.
2. OSHA Inetiucilon DFO L 2-2.37A—
January 20.1981. To ascaI — ----— and
GwdeJ,nes ferscporfrmnd and Other
Hazardous Waste Site Activities.
3. OSHA Instruction DTS CSt 2.74—
january 29.1980. Hazardous Waste Activity
Form. OSHA 175.
4. Hazardous Waste afllp(ctIOfli Reference
ManuaL U.S. Department of Labor.
Occupational Safety and Health
AdministratIon. 1986.
5. Memorandum of Understan ng Among
the National Institute for Occupational Safety
and Health, the Occupational Safety and
Health M ”tratiao. the United States
Coast Guard. and the United State.
Environmeflhal Protection Agency. Guidance
for worker Protection Dunng Hazardous
-------
— - -‘— ‘ at v . a. 42 1 LL.. yI LLu e I S KJIB iitd Ri+iIc U m .
W S &ivetI 5f&.J CS4pond
-
D.____h1L IllS. ..: -
s. N i - fe,LM
Oct bav list U.S. L..L-- ‘ PC :111.1
A
• if Ra.,-’ r-
t 4 5& IUIa. Opu .ath
pL r i P.& .O.P.) P U.S. E..l.mte1
Pzu’ ” Agency, Off . . of EmLjLI and
p4 aI Raiponan. 1Ia ., RulHmss
SIIwu,t OM . Dr”or I iS4.
. fli.,. ... .J iu ofaSit. Softly Plan. Field
Standard Oporsting Pr ,- ‘ss (P.3.02.) t
U.S. Enviruementel Piot ” ’ Agency . Off..
of ug . . . .ey and D .lu.L
Ha..rduu . Buaponis SupvreIDM . Apud
lies.
S.
U.S. En L-- ta1 Pr l-’ Agency , Office
of --- --- y and DmP ’
Hamedoen Psiponna 0t. 1 Olvinian .
En,ir entul Tenon November
1954.
10.
Gukf ” M jbrIL.mds Wante Site
A d itka . Nadsual I for
Occepaticual Safety and Ikaith
A stlon ( OlliA). U.S . Coast Guard
(11800). and L..l. - Prc
Agency ( ‘A 0ck4,I , INS.
11. Th.t ’&th H.aM and Safety at
llu&udme Wa, Sl Aa WWiI U.S.
Environmental e1si” Agency. EPA!S251
94 iet — li ___
12. Haemdo.. WWteSIIa tdM ,iiwJu ..—
Sub.taranlaieiysneta& NIOSH Worker
Bulletin. U.S. Dspaiuiant of Health and
Humen S.rvt . Public Health Sor,to..
for DIi Control. National
Institut, for O&iq,Idenal Safety and Healtie
o _ r li
13. NSaLThU 5 Squip- Ibr
Hawdan. Mate, i ou lnofdente A Selection
Colder U.S. Deparuient of Health and Human
S....I. _ L Public Health Servic.. Centers for
Diesels Control. National Institute for
Occepadonal Safety end Healt OrIob
1954.
14. fYie S.zvior £aesap,ency Management
Han4hoo Intarnattonal Asr aUon of Firs
OtI FoundatIon. 101 East Holly Av
Unit 108. SL Sng . VA 22170. January 1155.
15. Smm yencyResp Guid.baok. U.S
Deparunont of Transportation. Washington.
DC. 11I
1. Ripest te the Congaw on Hazardous
Matanals l)uiniag. n’”i’ and
PiepwethrnVedeml Emergency
Agency, Washington. DC. July
INS.
17. W .i&i,c forTh. Alan V.
&“ and). David P.ug on . National
Firs PVotecdOIl Aesocladon. Battarymarub
Pe, Qal CT.MA
IS. Rre Co iand. Alan V.
National FIR. Protection. Buttarymerub Park.
Quincy. MA 02215. lies.
ii. Incidin’ Can dSyst .ni . Fire
Protection Publications. 0klah 5 n’
llnlvufsitY . Suiiwatar. OK 74 L 1
m Sit. Emergency Respaw Plonnw
chemical Maiiufai.Li.r. .r. A 5y ’ fton.
Washington. DC 2O 7. INS.
21. Hazazdoui Materials Emergency
Planning Guide. NET-I. EnvIronmental
Protection Agency. Washington. DC. March
l .
22. CommunIty Teamwork Woafer g
Togetherte omote Hazardous Motenals
TrwpastatiOa Safety U.S. Deperuient of
Tr.i..spusIatIOtl . Washington. DC. May19 13.
23. Disaster Planning Guide Jbr Busineu
and lndustry Federal Emergency
Mai ..ant Agency. Publication No. FSHA
141. August 11g.
frbe Office of and Budget has
ap 1 .... d Sb. 6L. ades collection
requtramente in this e-’ under control
(PR Do e. N Nie Flied s—i—it 1i54 am)
-------
Treatability Studies Contractor
Work Assignments
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. 0 C 20460
JUL 12 1989
OFFICE OF
SOLIO WASTE ANO EMERGENCy RESPo
OSWER Directive # 9380.3—01
MEMORANDUM
SUBJECT: Treatability Studies Contractor Work Assignments
FROM: Henry L. Longest II, Director
Office of Emergency and Remedial 1 esponse
TO: Superfund Branch chiefs, Regions I-X
Purpose
The purpose of this memo is to equire that all future
remedial and rertoval work assignments involving treatability
studies contain a provision requiring the contractor to send a
copy of the treatability study to the Agency 1 s Superfund
Treatabi].ity Data Base which is being developed by the Office of
Research and Development CORD). In addition, you are also
directed to send a copy of all treatability studies performed to
date and which are readily available, to this central repository.
Back round
The Agency has initiated a treatability study program to
facilitate the performance of and improve the quality of
treatabi].ity studies performed in support of the Superfund
program. The establishment of a Treatability Data Base is an
important part of this program if we are to utilize this
information to aid in the selection of remedies and the planning
of future treatability studies. A centralized repository for
treatability studies is not currently in place and knowledge
gained from treatability studies is not efficiently communicated.
ORD is developing a repository for the studies to aid us in this
area.
This repository will provide information to aid in remedy
selections on a site—specific basis, improve future planning for
treatability studies, and further our knowledge of technologies
on a national basis. It is our intention to minimize Regional
resources required to maintain the data base in the future by
requiring the contractors to assume responsibility for sending
treatability studies to the central repository. The treatability
studies collected as a result of this effort will ensure that
information available reflects current Superfund experience.
-------
2
The treatability study information as well as other pertinent
technical information, will be available to the Regions and
contractors through the Alternative Treatment Technology
Information Center (ATTIC) in F l 1990. Please contact Mike
Mastracci at rs 475—8933 (mail code RD—681 at the U.S. EPA HQ).
ImDlementation
Work assignment managers and project officers for removal
and the remedial projects are to include a provision in all future
work assignments requiring that copies of treatability studies be
sent to the following address:
Attn: Ken Dostle
U.S. Environmental Protection Agency
Superfund Treatability Data Base
ORD/ REEL
26 W. Martin Luther King Drive
Cincinnati, Ohio 45268
The work assignment should also require that the
treatability study report provided to ORD be a separate and
complete document which is a camera—ready master copy. We are
also collecting treatability studies retroactively as well. You
are directed to send copies of all treatability studies that are
readily available to the address identified above.
The Agency is also developing detailed guidance on planning
and performing treatability studies with the first of these
planned for distribution in early FY-90. Today’s memo will be
updated in the future to require that contractors comply with
these guidances as well. Your assistance with the development
and implementation of this program is appreciated. Please
contact Robin Anderson at PTS 382—2446 or Scott Maid at
FTS 382—4671 if you have question or comments on the application
of this requirement to the remedial or removal program
respectively.
cc: OIfl Coordinators, Regions I-X
ARC P oject Officers, Regions I-X
ER S Pioject Officers, Region I—X
R ( P b ect Officers (OERR)
Russ lIy.r (O R/HSCD)
Tim Fields (OERR/ERD)
Scott Maid (OERR/ERD)
Robin Anderson (OERR/HSCD)
Mike Mastracci (ORD)
Ken Dostle CORD)
Betti Van Epp (OERR/OPM)
Joseph Lafornara (OERR/ERT)
-------
Final4Guidance on Adminstrative Records
for Sélècting CERCLA Response Actions
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON, 0 C 20460
4)4 ,Rd tG
OFFICE CF
SCUD WASTE AND EMERGENCY RESPONSE
OSWER Direccive 9833.3A—
MEMORANr ,U
SUBJECT: Final Guidance on Administrative Records for Selectir.g
CERCLA Response Actions
FROM: Don R. Clayc:
Assistant Adminis t r
TO: Regional Administrators, Regions i-x
This memorandum transmits to you our “Final Guidance on
Administrative Records for Selecting CERCLA Response Actions.”
This document replaces the “Interim Guidance on Administrative
Records for Selection of CERCLA Response Actions,” previously
issued on March 1, 1989.
The guidance sets forth the policy and procedures governing
the compilation and establishment of administrative records for
selecting response actions under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA), as
amended by the Superfund Amendments and Reauthorization Act of
1986 (SARA). This guidance is also consistent with and expands
on Subpart I of the National Oil and Hazardous Substances
Pollution Contingency Plan, 55 Fed. Reg. 8859 (March 8, 1990).
- This guidance reflects input received from the Regions,
Headquarters and the Department of Justice. There have been
several drafts of this guidance and comments have been
incorporated. I thank you for your assistance.
Attachment
cc: Director, Waste Management Division,
Regions I, IV, V, and VII
Director, Emergency and Remedial Response Division,
Region II
Director, Hazardous Waste Management Division,
Regions III, VI, VIII, and I X
Director, Hazardous Waste Division, Region X
Director, Environmental Services Division,
Regions I, VI, and VII
Regional Counsel, Regions I-X
Administrative Record Coordinators, Regions I—X
u R.cyckd Pip.
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OSWER DirectLve No. 98?L2A-
FINAL GUIDANCE ON ADMINISTRATIVE RECORDS
FOR
SELECTING CERCLA RESPONSE ACTIONS
U.S. Environmental Protection Agency
Office of Solid Waste and Emergency Response
Washington, D.C. 20460
-------
H.
Privileged Documents
.
34
I.
Guidance Documents
37
J.
Technical Literature
38
K.
Legal Sources
39
L.
NPL Rulemaking Docket
Information
39
M.
RCRA Documents
N.
Post—Decision Information
40
Iv. INVOLVEMENT OF OTHER PARTIES . . . . . . . . 42
A. States . . . . .
1. State Involvement in Federal—Lead Sites
2. Federal Involvement in State—Lead Sites
B. Federal Facilities
C. ATSDR
D. Natural Resources Trustees . . . .
V. DISCLAIMER 46
VI. FURTHER INFORMATION . . . . . . . . . . . . . . . . . . . 46
GLOSSARY
APPENDICES
Appendix A.
Appendix B.
Appendix C.
Appendix D.
57
Appendix E. . 59
Appendix F. . 85
Appendix G. . 86
Appendix H. 87
Appendix I. . 88
Appendix J. . 89
Appendix K. . 90
Appendix L. 91
Appendix M. .101
• . . . 42
42
43
• . 44
• . 45
45
Sections l13(j)—(k) of CERCLA . .
Model FileStructure
Model Index
47
50
52
56
Model Position Description for Administrative
RecordCoordinator .......
Compendium of Response Selection Guidance
Model Transmittal Cover Letter . • . •
Model Document Transmittal Acknowledgement
Model FactSheet . . . . . . . . . . .
Model Notice of Public Availability . .
Microform Approval Memorandum . .
Model Certification . . . . . . . . . •
Preamble to Subpart I of NCP. . . . . . .
Subpart I of the NCP. . . . . . . . . .
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I. INTRODUCTION . 1
- A. Purpose and Scope of the Administrative Record
B. JudicialReview
C. Public Participation
II. PROCEDURES FOR ESTABLISHING THE ADMINISTRATIVE RECORD 4
A. Administrative Record Coordinator 4
6
6
7
III. CONTENTS OF THE ADHINISTRATIVE RECORD
A. Remedial Actions . . . . . . .
B. Removalkctions . . . . .
C. I i’ nt and Substantial Endangerment
D. PublicComa.nts . . . . . . . .
E. EnforcwntActions . . . . . .
1. Negotiation Documents . . .
2. PRP—Lead RI/FS . . . . . .
TABLE OF CONTENTS
1
3
4
B. Multiple Response Actions
C. Compilation . . .
D. Index . . . .
E. Location
1. General
2. Special Documents
F. Public Availability
1. General
2. Remedial Actions
3. Removal Action
G. Maintaining the Record
H. Confidential File
I. Copying
J. Micrographics .
K. Certification .
8
8
9
• . . . . . . . . . . • . . . 12
12
13
. 14
17
19
20
21
. 22
. . . S S I
S S • S S S S S
. . . . . 22
. . 22
• . 26
. . 29
30
S • • I
. 31
3].
. . 32
3. Administrative Orders and Consent Decrees
F. ExcludedDocuments
G. Draft Documents and Internal Memoranda . . .
• . 32
S 33
. . 33
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OSWER Directive No. 9833.3A-l
I. INTRODUCTION
A. Purpose and Scope of the Administrative Record
This guidance addresses the establishment of administratj..;e
records under Section 113 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA), as
amended by t e Superfund Amendments and Reauthorization Act of
1986 (SARA). Section 113(k) (1) of CERCLA requires the
establishment of administrative records upon which the President
shall base the selection of a response action (see Appendix A fcr
the complete statutory language).
Chapter I of this guidance introduces the purpose and scope
of the administrative record. Chapter II reviews procedures for
compiling and maintaining the administrative record. Chapter Ii:
examines the various types of documents which should be included
in the administrative record. Chapter IV discusses how agencies
outside EPA are involved in establishing the record. Finally,
this guidance includes a glossary of frequently used terms and
acronyms as well as several appendices.
Although this guidance is written for use by the Jnited
States Environmental Protection Agency (EPA), it can be adapted
for use by state and federal agencies required to establish
administrative records for the selection of CERCLA response
actions. As used in this guidance the term “lead agency” means
either EPA, a state or other federal agency, which is responsible
for compiling and maintaining the administrative record. As used
in this guidance, the term “support agency” means the agency or
agencies which furnish necessary data to the lead agency, reviews
response data and documents and provides other assistance as
requested by the OSC or RPM. This guidance reflects the
revisions to the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP) published on March 8, 1990, 55 Fed. Req.
8859 (see Appendices L and M).
The administrative record established under Section 113(k)
of CERCL serves two primary purposes. First, the record
contains those documents which form the basis for selection of a
response action and under Section 113(j), judicial review of any
issue concerning th. adequacy of any response action is limited
to the record. Second, Section 113(k) requires that the
administrative record act as a vehicle for public participation
42 U.S.C. §9613. References made to CERCLA throughout
this memorandum should be interpreted as meaning “CERCLA, as
amended by SARA.”
1
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OSWER Directive No. 9833.3A-:
in selecting a response action. This guidance document discusses
procedures developed to ensure that the lead agency’s
administrative records meet these twin purposes.
The administrative record is the body of documents that
“forms the basis” for the selection of a particular response at a
site. This does not mean that documents which only support a
response decision are placed in the administrative record.
Documents which are included are relevant documents that were
relied upon in selecting the response action, as well as relevant
documents that were considered but ultimately rejected (e.g.,
documents “considered or relied on”).
This document uses th. phrase “censidered or relied on” in
discussing which documents should be included in the
administrative record to indicat, that it is EPA’s general policy
to be inclusive for placing documents in the administrative
record. Eowever, this term does fl2. mean that drafts or internal
documents are normally included in the administrative record.
Lead or support agency draft or internal memoranda are generally
not included in the administrative record, except in specific
circumstances (see section ItI.G. at page 33). Thus, the record
will include final documents generated by the lead and support
agency, as well as technical and site—specific information.
Information or comments submitted by the public or potentially
responsible parties (PRP5) during a public comment period (even
if the lead agency does net agree with the information or
comments) are also included in the administrative record (see
section III.D. at page 30).
The following principles should be applied in establishing
administrative records:
o The record should be compiled as documents relating to the
selection of the response action are generated or received
by the lead agency;
o The record should include documents that form the basis for
the decision, whether or not they support the response
selection; and
o The record should be a contemporaneous explanation of the
basis for the selection of a response action.
The effort to establish adequate administrative records
encompasses a vast array of people including: Administraive
Record Coordinators, Remedial Project Managers (RPMs), On-Scene
Coordinators (OSCs), enforcement staff, records management staff,
Regional Counsel staff, Community Relations Coordinators (CRC5),
other federal agencies, states, CERCLA contractors, and the
2
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OSWER Directive No. 9833.)A-1
public. 2 This guidance will discuss the roles and
responsibilities of these people and how they interact with one
another.
B. Judicial Review
Section 113(j)(l) of CERCLA provides that judicial review of
any issues concerning the adequacy of any response action shall
be limited to the administrative record.
Judicial review based on an administrative record provides
numerous benefits. Under Section 113(j) of CERCLA and general
principles of administrative law, when the trial court reviews
the response action selected, the court is limited to reviewing
the documents in the administrative record. As a result, facts
or arguments related to the response action that challenging
parties present for the first time in court will not be
considered.
Record review saves time by limiting the scope of trials,
thereby saving the lead agency’s resources for cleanup rather
than litigation. Courts will not allow a party challenging a
decision to use discovery, hearings, or additional fact finding
to look beyond the lead agency’s administrative record, except in
very limited circumstances. In particular, courts generally will
not permit persons challenging a response decision to depose,
examine, or cross—examine EPA, state or other federal agency
decjsjoninakers, staff, or contractors concerning the selection of
the response action.
Furthermore, the administrative record may be cited long
after officials responsible for the response decisions have moved
into different positions or have left the lead or support agency.
Judicial review limited to the record saves time involved in
locating former employees who may not remember the facts and
circumstances underlying decisions made at a much earlier time.
Moreover, in ruling on challenges to the response action
decision, the court will apply the highly deferential “arbitrary
and capricious” standard of review set forth in Section 113(j) (2)
of CERCIA. Under this standard, a court does not substitute its
judgment for that of the decisionmaker. The reviewing court does
not act a. an independent decisionmaker, but rather acts as a
reviewing body whose limited task is to check for arbitrary and
capricious action. Thus, the court will only overturn the
response selection decision if it can be shown on the
2 As used hereinafter in this guidance the term “public”
includes potentially responsible parties (PRPs).
3
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OSWER Directive No. 9833.3A-l
administrative record, that the decision was arbitrary and
capricious or otherwise not in accordance with the law. However,
the extent to which EPA benefits from having judicial review
limi.ted to the record depends on the quality and completeness of
each record.
C. Publi :icipation
Section 113(k) (2) of CERCLA requires that the public have
the opportunity to participate in developing the administrative
record for response selection. Section 117 of CERCLA also
includes provisions for public participation in the remedial
action selection process. 3 Both sections reflect a statutory
emphasis on public participation. Participation by interested
persons will ensure that the lead agency has considered the
concerns of the public, including PRPs, during the response
selection process. In addition, for purposes of administrative
and judicial review, the record will contain documents that
reflect the participation of the public and the lead agency’s
consideration of the public’s concerns.
If the lead agency does not provide an opportunity for
involvement of interested parties in the development of the
administrative record, persons challenging a response action may
argue that judicial review should not be limited to the record.
The lead agency must, therefore, make the information considered
or relied on in selecting a response action available to the
public, provide an appropriate opportunity for public comment on
this information, place comments and information received from
the public in the record, and reflect in the record the lead
agency’s consideration of this information.
II. PROCEDURES FOR ESTABLISHING THE ADMINISTRATIVE RECORD
A. Administrative Record Coordinator
Each region should have an Administrative Record
Coordinator. The Record Coordinator generally has the duty of
ensuring that the administrativ, record files are compiled and
maintained according to Subpart I of the NCP and this guidance.’
42 U.S.C. *9617.
‘ Th. “administrative record file” should be distinguished
from the “administrative record.” The administrative record file
refers to the documents as they are being compiled. Until a
response action decision has been selected, there is no complete
administrative record for that decision. Thus, to avoid creating
the impression that the record is complete at any time prior to
4
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OSWER Directive No. 98)3. A-].
The Record Coordinator will not be responsible for deciding wh.c-
• documents are included in a record file. Those decisions shou1
be made by the OSC or RPM, with appropriate Consultation of ORC
staff. The Record Coordinator’s duties ordinarily include:
o Developing procedures for creating record files;
o Ensuring that the public is notified that the record files
are available for inspection;
o Ensuring that the records are available at or near the site;
o Ensuring that the records are available at the regional
office or other central location;
o Coordinating efforts to obtain the necessary documents;
o Indexing the record files;
o Updating the record files and indices on a regular basis
(e.g., quarterly);
o Ensuring availability of the record file for copying;
o Ensuring that sampling and testing data, quality control and
quality assurance documentation, and chain of custody fort s
are available for public inspection, possibly at a location
other than that of the record files;
o Coordinating with ORC staff on questions of relevance and
confide tjaLjty of documents submitted for the record files:
o Arranging for production and presentation of the record to
court when necessary for judicial review;
o Maintaining the confidential portion of the record files, if
necessary;
o Maintaining the “Compendium of CERCLA Response Selection
Guidance Documents”;
o Coordinating with states and federal agencies on record
files compiled by them; and
the final selection decision, the set of documents is referred to
as the administrative record file rather than the administrative
record.
5
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OSWER Directive No. 9833.3A-i.
0 Notifying appropriate personnel of the timing for review of
state and federal record fi .es.
Appendix D Contains a model position description for an
Administrative Record Coordinator.
The Record Coordinator must work closely with RPMs, OSCs,
enforcement staff, records management staff, Regional Counsel
staff, community relations staff, and the Department of Justice
(DOJ) (for cases in litigation).
If the way the record was compiled and maintained is
questioned in litigation, the Record Coordinator may be called
upon to prepare an affidavit or testify about those procedures.
Therefore, the Record Coordinator should be familiar with the
procedures associated with the record, and be qualified to
fulfill the responsibilities outlined above.
B. Multiple Response Actions
In general, every decision document (e.g., Record of
Decision (ROD) or Action Memorandum) must be supported by an
administrative record. Under CERCLA, cleanups are often broken
up into distinct response actions. At a given site this may
include several removal actions, and/or remedial actions known as
operable units. For every removal action or operable unit, a
separate administrative record must be compiled.
Information relevant to more than one response decision,
such as a site inspection report or a preliminary assessment
report may be placed in the record file for an initial response
action and incorporated by reference in the indexes of subsequent
record files for that site.
C. Compilation
The administrative record file should be compiled as
relevant documents on the response action are generated or
received. Thus, all documents which are clearly relevant and
non-privilegd should be placed in the record file, entered into
the ind , and made available to the public as soon as possible.
For exa 1s, the remedial investigation/feasibility study (RI/FS)
work plan, summaries of quality assured data, the RuTS released
for public comment, th. proposed plan, and any public comments
received on the RuTS and proposed plan should be placed in the
record file as soon as they are generated or received.
When there are questions whether particular documents should
be included in the record file, such documents can be segregated
and reviewed at regular intervals (e.g., quarterly). For
6
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OSWER Directive No. 98)).3A-l
example, draft documents or documents subject to claims of
‘privilege should be set aside for review by ORC and other
appropriate staff. At critical times, such as prior to the
public comment period, the issues regarding these documents
should be completely resolved and the documents included in the
record file, if appropriate.
The record file should be updated while it is available for
public inspection. The additional documents should be placed Lfl
the record file and entered in the index. Any updates to the
record file should be made to all copies of the record file.
All documents considered or relied on in selecting the
response action should be in the record file when a decision
document (e.g., a record of decision) is signed. Documents
relevant to the response selection but generated or received
after the decision document is signed should be placed in a post-
decision document file and may be added to the administrative
record file in certain circumstances (see section III.N. at page
40)
D. Index
Each administrative record file must be indexed. The index
plays a key role in enabling both lead agency staff and members
of the public to help locate and retrieve documents included in
the record file. In addition, the index can be used for public
information purposes or identifying documents located elsewhere,
such as those included in the compendium of guidance documents
(see Appendix E). The index also serves as an overview of the
history of the response action at the site.
The index also provides the lead agency with a degree of
control over documents located at or near the site. The creation
of an index will prevent persons from altering the record simply
by physically adding or removing documents from the record file.
The index should include the following information for each
document:
o Doc% snt Number;
o Doc .nt Date - date on the document;
o Document Title — one or two line identification. Identify
the actual document, not a transmittal memo or other less
relevant document. Include sufficient information so the
document cannot be confused with another (e.g., the title
“report” may be insufficient);
7
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OSWER Directive No. 9833.3A-1
o Author - Name and affiliation;
o Recipient - Name and affiliation; and
o Document Location.
The index can be organized either by subject or in
chronological order. If documents are customarily grouped
together, as with sampling data and chain of custody documents,
they may be listed as a group in the index to the administrative
record file. Appendix C contains a model index organized by
subject. Computer databases have been helpful in generating and
updating the index.
The index should be updated when the record file is updated.
It is preferable to update the record file when documents are
received, or at least quarterly. Such updates should coincide
with the periodic updating of the record file and review of
material for which there are questions about relevance or
privilege (see section II.C. at page 6). The index ould also
be updated before any public comment period commenc- :. The index
should be labeled “draft index” until all relevant .locuments are
placed in the record file. When the decision document is signed,
the draft index should be updated and labeled “index.”
E. Location
E.l. General
Section 113(k) (1) of CERCLA requires that the administrative
record pa available to the public “at or near the facility at
issue.” Duplicates of the record file may be kept at any other
location. A copy of the record file must be located at the
-regional office or other central location. Both copies of the
record file should be availabl, for public inspection at
reasonable times (e.g., 9-4, Monday-Friday). In the case of an
emergency removal, unless requested, the record file needs to be
available for public inspection only at the central location (see
section II.F.3. at page
The record file located at or near the site should be placed
in one oi the information repositories which may already exist
for co anity r.lations purposes. These ar. typically located in
a library, town hail, or other publicly accessible place. If
there is no existing information repository, or if the repository
See 40 C.F.R. •300.805.
6 40 C.F.R. § 3O0.805(a)(5) and (b).
8
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OSWER Directive No. 9833.3A l
does not have sufficient space for the record file, arty other
publi Ly accessible place may be chosen to house the record
file. When a Suparfund site is located at or near an Indiarr
reservation, the centrally located copy of the record file may be
located at the Indian tribal headquarters. The Community
Relations Coordinator (CRC) should be consulted on the location
of the information repository and record file.
The record file should be transmitted to the local
repository in coordination with the CRC. The CRC should make the
initial contact to establish the local repository and request
housing for the record file. The Record Coordinator should make
arrangements for delivering the record file to the local
repository.
The record file should include an introductory cover letter
addressed to the librarian or repository manager (see Appendix
F). In addition, a transmittal acknowledgement form should be
included to ensure receipt of the record file (see Appendix G).
FLrtally, an administrative record fact sheet should accompany the
record to answer questions from the public (see Appendix H).
Updates to the record file should be handled in a similar fashion
(see section II.C. at page 6).
In addition to the publicly available record file, if
feasible, a master copy of the record file should be kept at the
regional office or other central location of the lead agency. :
preserve the integrity of the master copy of the record file, it
should not be accessible to the public. If not feasible to
establish a master copy, the lead agency will need to establish
an effective security system for the publicly available record
file. The master copy of the record file may be maintained in
microform to conserve storage space (see section 11.3. at page
21)
E.2. Special Documents
Certain documents which are included in the record file do
not have to be maintained at or near the site or, in some cases,
at the regional office or other central location, because of the
nature of th. documents and the burden associated with
mairttaLnia such documents in multiple locations. These
documents, however, must be incorporated in the record file by
referenc (e.g., in the index but not physically in the record
If the site is located at a federal facility which
requires security clearance, the administrative record file for
that site must be located where security clearance is not
required. The public must have free access to the record file.
9
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OSWZR Directive No. 9833.3A-].
file), and the index must indicate where the documents are
public1y accessible. Where a document is listed in .the index but
‘flOt located at or near the site, the lead agency must, upon
request, include the document in the record file at or near the
site. 8 This applies to verified sampling data, chain of custody
forms, and guidance and policy documents. It does not apply to
documents in the confidential file.
Unless requested, the following types of documents do not
have to be located in multiple locations:
Verified Sampling Data 9
Verified sampling data do not have to be located in either
administrative record file. The sampling data may be left in its
original storage location (e.g., Environmental. Services Division
(ESD) or contract laboratory). Data summary sheets, however,
must be located in the record file. The index must list the data
summary sheets, reference the underlying verified sampling data,
and indicate where the sampling data can be found.
Chain of Custody For ms’°
As with verified sampling data, chain of custody forms do
not have to be located in either administrative record file. The
chain of custody forms may be left in the original storage
location. The index must reference the chain of custody forms
and indicate their location.
- 8 40 C.F.R. §300.805(b).
40 C.F.R. §300.805(a) (1). “Verified sampling data” are data
that have undergone the quality assurance and quality control
process. “Invalidated sampling data” have been incorrectly
gathered or analyzed and will not be part of the record file.
“Unvalid t.4 sampling data” are data which has not yet undergone
the quality assurance and quality control process. Because it is
superseded by verified data, the unvalidated data are not generally
part of tb. record file.. However, such data may in some cases be
relied on in selecting a response action, such as an emergency
removal where there is no time for verification. Unvalidated
sampling data which are relied on in selecting a response action
should be included in the record file.
40 C.F.R. §300.805(a) (1).
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OSWER Directive No. 98fl.3A-I.
Confidential and Privileged Documents”
When a confidential or privileged document is included in
the record file, it should be kept in a confidential port3.on of
the record file. The confidential file should be kept in a
locked cabinet at the regional office or other central location.
It should not be located at or near the site. The index should
identify the title and location of the document, and describe hy
the lead agency considers it confidential or privileged.
Furthermore, the lead agency should summarize or redact the
document to make available, to the extent feasible, factual
information (especially if such information is not found
elsewhere in the record file and is not otherwise available to
the public). This summary or redaction should be performed as
soon as possible after the determination that a document is
privileged or confidential, and inserted in the portion of the
record file available to the public and included in the index.
See also section III.H. at page 34.
Guidance and Policy Documents
Guidance and policy documents that are not site specific are
available in a compendium located in the regional office.
(“Compendium of CERCLA Response Selection Guidance Documents,”
Office of Waste Programs Enforcement, May 1989.) This eliminates
the need for reproducing copies of frequently used documents for
each site record file. The documents in the compendium need not
be physically included in the record file, but the guidance and
policy documents considered or relied on in selecting the
response action must be listed in the record file index along
with their location and availability. See also section 111.1. at
page 37 and Appendix E.
Technical Literature’ 3
Publicly available technical literature that was not
generated for the site at issue (e.g., an engineering textbook),
does not have to be located in the regional office or other
central location or at or near the site. The document must be
clearly referenced in the index. However, technical literature
not publicly available must be physically included in the record
file at tks regional office or other central location and at or
near tb sit.. Se. also section III.J. at page 38.
40 C.F.R. §300.805(a) (4).
12 40 C.F.R. §300.805(a) (2).
13 40 C.F.R. §300.805(a) (3).
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OSWER Directive No. 9833.3A-j.
F. Public Availability
F.1. General
Section 113(k) of CERCLA specifies that the administrative
record “shall be available to the public.” In satisfying this
provision, the lead agency must comply with all relevant public
participation procedures outlined in Sections 113(k) and 117 of
CERCLA. The NCP (see Appendices L and N) contains additional
requirements on public availability (see also “Community
Relations in Superfund: A Handbook,” October 1988 - OSWER
Directive No. 9230.O-3A; “Community Relations During Enforcement
Activities,” November 3, 1988 - OSWER Directive No. 9836.0-lA).
The availability of the record file will vary depending upon
the nature of the response action. Different procedures are
outlined below for remedial and removal response actions.
In all cases, the lead agency should publish a notice of
availability of the record file when the record file is first
made available for public inspection in the vicinity of the site
at issue.” The notice should explain the purpose of the record
file, its location and availability, and how the public may
participate in its development.
The notice should be published in a major local newspaper of
general circulation. The newspaper notices should be distributed
to persons on the community relations mailing list. These
notices should also be sent to all known PRPs if they are not
already included on the community relations mailing list. As
PRP5 are discovered, the lead agency should add their names to
the community relations mailing list and mail them all the
notices sent to the other PRPS. Publication of the notice should
be coordinated with the community relations staff. A copy of the
notice of availability and list of recipients should be included
in the record file. Appendix I contains a model notice of
availability.
This public notice may be combined with other notices for
the sams sits, such as a notice of availability of the community
relations information repository, if they occur at the same time.
In addition to the required newspaper notice, the public can be
informed of the availability of the record file through existing
mechanisms (e.g., general and special notice letters, Section
104(e) information requests, and th. community relations mailing
list). In addition, Headquarters will publish notices in the
“ See 40 C.F.R. §300.815(a) and §1300.820(a) (1) and (b).
12
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OSWER Directive No. 9833.3A-
Federal Register. They will be published quarterly and will List
sites where remedial activity is planned.
F.2. Remedial Actions
The administrative record file for a remedial action must be
availab] e for public inspection when the remedial investigation
begins For example, when the remedial investigation/
feasibility study (RI/FS) work plan is approved, the lead agency
must place documents relevant to the selection of the remedy
generated up to that point in the record file. Documents
generally available at that time include the preliminary
assessment (PA), the site investigation (SI), the RI work plan,
inspection reports, sampling data, and the community relations
plan. The lead agency must continue to add documents to the
record file periodically after they are generated or received
during the RI/FS process.
The record file must be publicly available both at a
regional office or other central location and at or near the site
(see section II.E. at page 8).16 In addition, the notice of
availability should be sent to persons on the community relations
mailing list, including all known PRPs.
With the completion of the RI/FS, the lead agency should
undertake the following public participation procedures:
o Prepare a proposed plan which briefly analyzes the remedial
alternatives evaluated in the detailed analysis of the RI/FS
and proposes a preferred remedial action alternative;
o Make the RI/FS report and proposed plan available in the
record files both at a regional office or other central
- location and at or near the site;
o Publish in a major local newspaper of general circulation a
notice of availability and brief analysis of the RI/FS
report and proposed plan. The notice should include the
dates for submission of public comments;
o Mail the notice or copy of the notice to all PRPs on the
co2nity relations mailing list;
o Provid, a formal comment period of not less than 30 calendar
days for submission of comments on the proposed plan. Upon
40 C.F.R. §300.815(a).
16 40 C.F.R. §300.805(a).
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OSWER Directive No. 9833.3A-l
timely request the lead agency will extend the pub1 ic.
comment period by a minimum of 30 additional days.’ [ Note:
The lead agency is encouraged to consider and respond to
significant comments that were submitted before the public
comment period. Considering early comments provides
practical benefits both substantively and procedurally.
Early comments may provide important information for the
selection decision, and early consideration provides the
public (and, particularly, PRPs) with additional informal
opportunities for participating in the decisioninaking
process.];
o Provide the opportunity for a public meeting(s) in the
affected area during the public comment period on the RI/FS
and proposed plan:
o Keep a transcript of the public meeting(s) on the RI/FS and
proposed plan held during the comment period and include a
copy of the transcript in the record file;
o Prepare a discussion (to accompany or be part of the
decision document) of any significant changes to the
proposed plan which occurred after the proposed plan was
made available for public comment which are reflected in the
ROD;
o Prepare a response to each of the significant comments
submitted during the public comment period to accompany the
ROD (see section III.D. at page 30); and
o Publish in a major local newspaper of general circulation a
notice of the availability of the ROD and make the ROD
available to the public before beginning any remedial
action, as required under Section 117(b) of CERCLA.
Comments received after signing the ROD should be placed in
a post-decision document file and may be added to the record file
in certain situations (see section III.N. at page 40).
F.3. Removal Actions
Section 113(k) (2) (A) of CERCLA requires that the EPA
establish procedures for the appropriate participation of
interested persons in th. development of the administrative
record for th. selection of a removal action. “Appropriate”
participation depends on the nature of the removal, as outlined
below.
1740 C.F.R. §300.430(f) (3) (i) (C).
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OSWER Directive No. 9833.3A-:
Time-critical Removal Actions
A time—critical removal action is a removal action for
which, based on the site evaluation, the lead agency determines
that a period of less than six months exists before On-site
removal activities must be initiated. This category includes
emergency removal actions which are described in greater detail
below.
The administrative record file for these actions must be
available for public inspection no later than 60 days after the
initiation of on-site removal activity. Where possible, the
record file should be made available earlier. The record file
must be available both at the regional office or other central
location and at or near the site at issue.
If, however, on—site cleanup activity is initiated within
hours of the verification of a release or threat of a release and
on-site cleanup activities cease within 30 days (emergency
actions), the record file need only be available at the regional
office or other central location, unless it is requested that a
copy of the record file be placed at or near the site.’ 8
For all time—critical removals, a notice of the availability
of the record file must be published in a major local newspaper
and a copy of the notice included in the record file. This
notice should be published no later than 60 days after initiaticr
of on-site removal activity.’ 9
A public comment period of not less than 30 days should be
held in appropriate situations. 2 ° In general, a public comment
period will be considered appropriate if cleanup activity has not
been completed at the time the record file is made available to
the public and if public comments might have an impact on future
action at the site. If a public comment period is considered
appropriate, it should begin at the time the record file is made
available for public inspection. Note, however, that even if an
action is completed before the record file is available, the
record tile should be made available to the public. The notice
for the ub1ic Comment period may be combined with the notice of
availability of the record file if they occur at the same time.
The notics should be mailed to all PRPs on the community
40 C.F.R. §300.805(b).
40 C.F.R. §300.415(m) (2) (i).
40 C.F.R. §300.415(zn)(2)(jj).
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OSWER Directive No. 9833.3A-l
relations mailing list. The notice should also be sent to all
known PRPs if they are not already on the community relations
mailing list.
The lead agency must respond to all significant comments
received during the public comment period and place the comments
and the responses to them in the record file (see section III.D.
at page 30) . Whether or not the lead agency holds a public
comment period, comments received by the lead agency before the
decision document is signed and related to the selection of the
removal action must be placed in the record file. For
information, including comments, generated or received after the
decision document is signed, see section tII.N. at page 40.
Non-Time-Critical Removal Actions
A non—time-critical removal action is a removal action for
which, based on the site evaluation, the lead agency determines
that a planning period of at least six months exists before on-
site removal activities must be initiated.
The administrative record file for a non—time-critical
removal action must be made available for public inspection when
the engineering evaluation/cost analysis (EE/CA) is made
available for public comment. 22 The record file must be
available at the regional office or other central location and at
or near the site. A notice of the availability of the record
file must be published in a major local newspaper and a copy of
the notice included in the record file. The notice should be
published in a major local newspaper of general circulation. In
addition, Headquarters will publish these notices in the Federal
Register. They will be published quarterly and will list sites
where non-time critical removal activity is planned. The
newspaper notice should be distributed to persons on the
community relations mailing list and placed in the record file.
These notices should also be sent to all known PRP5 if they are
not already on the community relations mailing list. As PRPs are
discovered, the lead agency should add their names to the
community relations mailing list and mail them all the notices
sent to the other PRPs. Publication of the notice should be
coordinated with th. community relations staff. A copy of the
notice of availability should be included in the record file.
Appendix I contains a model notice of availability.
40 C.F.R. 1300.41.5(m) (2) (iii).
40 C.F.R. 1300.415(m) (4).
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OSWER Directive NO. 9 833.3A-1
A public comment period on the EE/CA of not less than 30
days must be held so that interested persons may submit comments
on the response selection for the record file. Upon timely
notice, the lead agenc 3 y will extend the public comment period by
a minimum of 15 days. 2 A notice of the public comment period
may be combined with the notice of availability of the record
file if they occur at the same time. The lead agency must
respond to all significant comments received during the public
comment period and place the comments and the responses to thei
in the record file (see section III.D. at page 30).2
The lead agency is encouraged to consider and respond to
significant comments that were submitted before the public
comment period. Considering early comments provides practical
benefits both substantively and procedurally. Early comments i ay
provide important information for the selection decision, and
early consideration provides the public (and, particularly, PRPs)
with additional informal opportunities for participating in the
decision making process.
Comments generated or received after the decision document
is signed should be kept in a post-decision document file. They
may be added to the record file in certain situations (see
section III.N. at page 40).
G. Maintaining the Record
Document room procedures should be established to ensure
orderly public access to the record files. In establishing
public access procedures, the security and integrity of the
record files must be maintained at all times.
Each regional office or other central location should have a
reading area where visitors are able to review the record files.
The record file must be available during reasonable hours (e.g.,
9-4, Monday-Friday). The public reading area should include,
wherever feasible:
o Administrative record files;
o Guidance Compendium (see section 111.1. at page 37);
o Accua to a copier; and
o Sign—in book.
40 C.F.R. §300.415(m)(4)(jjj).
40 C.F.R. §300.415( a) (4) (iv).
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OSWER Directive No. 9833.3A-i
Controlled access to the files is accomplished by use of a
Visitor sign—in book. Sign—in books help minimize instances in
which documents are lost or damaged. They also provide
documentation of the lead agency’s efforts to provide public
access to the record files. Pertinent information recorded in
the book should include:
o Date of visit:
o Name:
o Affiliation;
o Address:
o Phone number;
o Site documents viewed; and
o Cost of copied materials (if applicable).
The lead agency may choose not to use sign-in books if the
books deter the public from reviewing the record files.
Since documents in the record file should be complete,
properly organized and legible, the integrity of the record file
must be maintained. If possible, storage and reading areas
should be supervised to maintain proper security. Documents
should not leave the document room or be left unattended. To the
extent feasible, the Administrative Record Coordinator should
check the order of the documents after being viewed by the public
to be certain all documents have been returned intact. The
documents in the record file should be kept secure, either in a
locked room or in locked cabinets.
The record file located at or near the site should be
handled with similar care. If possible, the record file should
be treated a. a non—circulating reference; it should not leave
the local repository except under supervision. The phone number
of a record file contact should be provided to record file users
and to the manager of the local repository so that problems can
be identified and resolved. This information can be included in
an informational fact sheet accompanying the record file (see
Appendix H). In addition, the Record Coordinator should plan
periodic reviews of the local record files.
Where the site is a fund-lead or PRP—lead, EPA should retain
(in addition to the publicly available record file) a master copy
of the record file at the regional office or other central
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OSWER Directive No. 9833.3A-:
location, if feasible. Where a state or Other federal agency i.S
the lead agency at a site, EPA should assure that the state or
other federal agency maintains (in addition to the publicly
available record file) a master copy of the record file. The
record files are peru anent records that must be retained.
As to the local repository, the statute and regulations are
silent concerning the duration of public availability of the
record file. The lead agency’s primary concern is public
participation in development of the administrative record.
Following initiation of the response action, public interest in
background information other than the Record of Decision or RI,’Fs
may wane. In any event, the statutory provisions for judicial
review and deadlines for filing cost recovery actions provide
useful references for keeping the record file publicly available.
See Sections 113(g) and (h) of CERCLA.
Where there is ongoing (or possible) litigation, the record
file in the regional or other central location should be
available at least until the litigation is over.
The record file continues to serve as a historical record of
the response selection, even after the statute of limitations for
cost recovery action has passed. Where there is considerable
public interest, the local repository may wish to keep the record
file available for public viewing.
H. Confidential File
In certain situations, documents in the record file may be
subject to an applicable privilege (see section III.H. at page
34). To the extent feasible, information relevant to the
response selection which is contained in a privileged document
should be summarized or redacted as to make the document
disclosab].e and then included in the publicly accessible portion
of the record file. The privileged document Ahould be included
in a confidential portion of the record file.
The Administrative Record Coordinator should maintain a
confidential portion of the record file for privileged documents.
These documents should be listed in the index to the entire
record file and identified as “privileged.” The index should
identify th. title and location of the privileged document, and
describs th. basis for the asserted privilege.
The confidential portion of the record file should be stored
in locked files at the regional office or other central location
25 See 40 C.F.R. §300.810(d).
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OSWER Directive No. 9833.3A-l
and should not be located at or near the site. The confidential
portion of the record file should be separate from the publicly
available record file to protect against inadvertent disclosure.
Each privileged document should be stamped “confidential” at the
bottom of each page of the document. Where the material i.s not a
written document (such as a computer disk or cassette tape) the
jacket should be stamped “confidential.” A complete list of all
materials contained in the confidential portion of the record
file should be maintained by the Record Coordinator. The Record
Coordinator should also maintain a log which will include the
time, date, document name, and will identify persons checking out
and returning materials to the confidential file.
As soon as a new record file is established, a routine
access list for the confidential file should be prepared for each
record file. When EPA is the lead agency, this routine access
list must be approved by the Waste Management Division Director
or the Environmental Services Division Director, and ORC. Once
approval is given, persons on the list will be able to access the
confidential files through the Record Coordinator. No one should
have access to the confidential files other than those identified
on the routine access list. For state or other federal agency-
lead sites, the Regions should take steps to insure that state or
other federal agencies develop routine confidential file access
list procedures.
This policy and procedure for privileged materials does not
supersede any policy and procedures established under the Freedom
of Information Act (FOIA), 5 U.S.C. §552, and EPA regulations
implementing FOIA at 40 C.F.R. Part 2. Upon receipt of requests
for the administrative record file pursuant to FOIA, if the
requester is in close proximity to the record file, the lead
agency may respond to FOIA requests by telling a requester the
location and availability of the record file. Decisions
regarding disclosures of materials under FOlk should be
coordinated among the various lead agency officials with access
to such materials.
I. Copying
Section 117(d) of CERCLA requires that each document
developed, received, published, or made available to the public
under Section 117 be made availabl, for public inspection and
copying at or near the site. Under Section 113(k) (2) (B) of
CERCL&, these documents must also be included in the
administrativ, record file. Under these provisions of CERCLA,
the lead agency must ensure that documents in the record file are
available for copying, but does not bear responsibility for
copying the documents themselves. Therefore, it is preferable
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OSWER Directive No. 9833.3A-1
that the record file should be located in a facility which
contains a copying machine (e.g., a public library).
When the administrative record file is available at a
facility at or near the site and copying facilities are available
there, the lead agency may encourage the requester to make use of
the copying facilities at that location. If copying of the
record file located at or near the site is difficult for a
requesting party, the lead agency may arrange for copying on
behalf of a requester at the regional or other central location.
The lead agency may ask that requesters arrange for copying by
contractors or commercial copy centers who then bill the
requester directly.
The lead agency should follow the FOIA regulations at 40
C.F.R. Part 2, in determining the appropriate charge for copying.
Copying fees should be waived for other federal agencies, EPA
contractors or grantees, and members of Congress. The EPA
currently charges 5.20 a page for paper copies as provided in 40
C.F.R. Part 2. Reproduction of photographs, microfilms or
magnetic tapes, and computer printouts should be charged at the
actual cost to the lead agency.
J. Micrographics
The lead agency may make the adm .nistrative record file
available to the public in microform. Use of micrographi.cs can
significantly reduce the space required to store administrative
record files. In addition, micrographics can simplify the tasks
of reproducing copies of the record file and transmission of the
record files to the local repositories. Arty use of micrographics
should be conducted in an orderly manner consistent with records
management procedures. If using micrographics to maintain the
record files, the lead agency must provide a micrographic reader
at the regional office or other central location to ensure public
access to the record file. If a record file is located at or
near the site and micrographics are used, the lead agency must
ensure that a micrographic reader at that location is available.
Microform copies of original documents are admissable in
court if created in an organized fashion. The Business Records
as Evid.ncs Act (28 U.S.C. *1732) specifies that copies of
record., vhich are made “in the regular course of business” and
copied by any process which accurately reproduces the original,
are “as admissible in evidence as the original itself.” See also
Federal Rules of Evidence 1003. Since the NCP provides for use
of microform, microform copies of administrative record documents
See 40 C.F.R. §300.805(c).
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OSWER Directive No. 9833.3A-l
that are produced in the regular course of business are likely t
be admissible in court.
The Office of Information Resources Management (OIRN) has
granted approval for the use of micrographics in establishi.ng
administrative records (see Appendix 7). Any use of
micrographics should still comply with the remaining provisions
of Chapter 6 of the EPA Records Management Manual (7/13/84).
K. Certification
A certification as to the completeness of the administrative
record must be performed when the record is filed in court.
Appendix K contains a model court certification.
When EPA is the lead agency such certification should be
signed by the Regional Administrator’s designee, after
consultation with ORC. Any certification of the record should be
made by program staff and not legal staff. The region may also
choose to have the Administrative Record Coordinator certify that
the record was compiled and maintained in accordance with
applicable agency regulations and guidance. Such certification
would attest that the record was compiled in accordance with
current agency procedures and would not address the completeness
of the record file.
If a state or other federal agency is the lead agency that
agency must certify that the record was compiled and maintained
in accordance with applicable EPA regulations and guidance.
After the state or federal agency provides this certification,
the Regional Administrator’s designee should certify as to the
completeness of the record, as provided in Appendix K.
III. CONTENTS OF THE ADMINISTRATIVE RECORD
A. Remedial Actions
The administrativ, record for selection of a remedial action
should consist of:
o dociasnts which wars considered or relied on to select the
r—sdial action; and
o doc snta which demonstrate the public’s opportunity to
partici ate in and comment on th. selection of the remedial
action.
See 40 C.F.R. fl300.8l0 and 300.815.
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OSWER Directive No. 9833.3A-1
Below is a list of documents that are usually generated when
a remedial response action is selected. These documents should
be included in the administrative record file if they are
generated and considered or relied on in selecting the remedial
response action. Documents that demonstrate the public’s
opportunity to participate in and comment on selecting the
remedial response action should also be included in the record
file. Documents not listed below, but meeting the above
criteria, should be included.
Factual Information/Data
o Preliminary Assessment (PA) report;
o Site Investigation (SI) report;
o Remedial Investigation/Feasibility Study (RI/FS) work plan;
o Amendments to the final work plan;
o Sampling and Analysis Plan (SAP): consisting of a quality
assurance project plan (QAPP) and a field sampling plan;
o Sampling data: verified data during the RI/FS, or any data
collected for previous actions such as RCRA or removal
actions which are considered or relied on in selecting the
remedial action. Unvalidated data should be included only
if relied on in the absence of validated data (see note 9 at
page 10);
o Chain of custody forms;
o Inspection reports;
o Data summary sheets;
o Technical studies performed for the site (e.g., a ground-
water study);
o Risk evaluation/endangerment assessment and underlying
docisntation (see section III.C. at page 29);
o Fact shs.t or summary information regarding remedial action
alt.rnative. generated if special notice letters are issued
to PRPs at an early stage of the RI/PS (see “Interim
Guidance on Notice Letters, Negotiations, and Information
Exchange,” October 19, 1987 - OSWER Directive No. 9834.1);
o RI/PS (as available for public comment and as final, if
different); and
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OSWER Directive No. 9833.3A-l
o Data submitted by the public, including PRPs.
Policy and Guidance
o Memoranda on site —specific or issue—specific policy
decisions. Examples include memoranda on off-site disposal
availability, special coordination needs (e.g., dioxin),
applicable or relevant and appropriate requirements (ARARs
(to the extent not in the RI/FS), cost effectiveness and
utilization of permanent solutions and alternative treatr ent
technologies;
o Guidance documents (see section iii.i. at page 37); and
o Technical literature (see section III.J. at page 38).
Public Participation (Include the documents that show the pub: =
was notified of site activity and had an opportunity to
participate in and comment on the selection of response action)
o Community relations plan;
o Newspaper articles showing general community awareness;
o Proposed plan;
o Documents sent to persons on the community relations mailing
list and associated date when such document was sent;
o Public notices: any public notices concerning response
action selection such as notices of availability of
information, notices of meetings and notices of
• opportunities to comment;
o The c 9 nuunity relations mailing list (including all known
PRPs);
o Documentation of informal public meetings: information
generated or received during meetings with the public and
Individual names and addresses of members of the general
public which are on th. community relations mailing list should
not bs included in th. public record file. Disclosure of such
information may result in a Privacy Act violation (see also section
III.X. at page 34) or inhibit the general public from requesting
information about the site. The lead agency should then place
individual names and addresses in the confidential portion of the
record file.
24
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OSWER Directive No. 9833.3A-i
memoranda or notes summarizing significant information
submitted during such meetings;
o Public comments: complete text of all written comments
submitted (see also section III.D. at page 30);
o Transcripts of formal public meetings: including meetings
held during the public comment period on the RI/FS, proposed
plan, and any waiver of ARAR5 under Section 12].(d)(4) of
CERCLA;
o Responses to significant Comments: responses to significant
comments received from the public concerning the selection
of a remedial action: and
o Responses to comments from the state and other federal
agencies.
Enforcement Documents (Include if the document contains
information that was considered or relied on in selecting the
response selection or shows that the public had an opportunity to
participate in and comment on the selection of response action.
Do not include enforcement documents solely pertaining to
liability)
o Administrative orders;
o Consent decrees;
o Affidavits containing relevant factual information not
contained elsewhere in the record file;
o Notice letters to PRPs;
o- Responses to notice letters;
o Section 104(e) information request letters and Section
122(e) subpoenas; and
o Response. to Section 104(e) information request letters and
Section 122(s) subpoenas.
Other Information
o Index (see section II.D. at page 7);
o Documentation of state involvement: documentation of the
request and response on ARARs, Section 121(f) (1) (G) notices
and responses, a statement of the state’s position en the
proposed plan (concurrence, nonconcurrence, or no comment at
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OSWER Directive No. 9833.3A-].
the time of publication), opportunity to concur in the
selected remedy and be a party to a settlement (see secticrt
IV.A. at page 42);
o health assessments, health studies, and public health
advisories issued by the Agency for Toxic Substances and
Disease Registry (ATSDR) (see section IV.C. at page 45); and
o Natural Resource Trustee notices and responses, findings of
fact, final reports and natural resource damage assessments
(see section IV.D. at page 45)
Decision Documents
o Record of decision (ROD): remedial action decision docurnent
(including responsiveness summary);
o Explanations of significant differences (under Section
117(c)) and underlying information; and
o Amended ROD and underlying information.
The administrative record serves as an overview of the
history of the site and should be understandable to the reader.
Appendix B provides a model file structure for organizing the
record file. Appendix C contains a model index.
B. Removal Actions
The administrative record for selection of a removal action
should consist of:
o documents which were considered or relied on to select the
removal action; and
o documents which demonstrate the public’s opportunity to
participate in and comment on the selection of the removal
action, when appropriate. 29
Below is a list of documents that are usually generated when
a removal response action is selected. These documents should be
included in the administrativ, record file if they are generated
and considerd or relied on when selecting the removal action.
Documents that demonstrate the public’ s opportunity to
participat. in and comment on the removal response action should
also be included in the record file. Documents not listed below,
but meeting the above criteria, should be included.
See 40 C.F.R. §*300.810 and 300.820.
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OSWER Directive No. 9833.3A-1
Factual Information/Data
o Preliminary assessment (PA) report;
o Site evaluation (SI) report;
o EE/CA (for a non-time-critical removal action);
o Sampling plan;
o Sampling data: verified data obtained for the removal
action, or any data collected for previous actions such as
RCRA or other response actions which are considered or
relied on in selecting the removal action. Unvalidated data
should be included only if relied on in the absence of
validated data (see note 9 at page 10);
o Chain of custody forms;
o Inspection reports;
o Technical studies performed for the site (e.g., a ground
water study):
o Risk evaluation/endangerment assessment and underlying
documentation; and
o Data submitted by the public, including PRP5.
Policy and Guidance
o Memoranda on site—specific or issue—specific policy
decisions. Examples include memoranda on off—site disposal
availability, compliance with other environmental statutes,
special coordination needs (e.g., dioxin):
o Guidance documents (see section 111.1. at page 37); and
o Technical literature (see section III.J. at page 38).
Public Participation (Include the documents that show the public
was notitisd of site activity and had an opportunity to
participsta in th. response selection.)
o Community relations plan;
o Newspaper articles showing general community awareness;
o Documents sent to persons on the community relations mailing
list and associated date when such documents was sent;
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OSWER Directive No. 9$33.)A-l
o Public notices: any public notices concerning response
action selection such as notices of availability of
information, notices of meetings, and notices of
opportunities to comment;
o The co munity relations mailing list (including all known
PRPs);
o Documentation of public meetings: information generated or
submitted during meetings with the public (including PRPS)
and memoranda or notes summarizing significant information
submitted during such meetings:
o Public comments: complete te ct of all written comments
submitted (see section 111.0. at page 30);
o Responses to significant comments: responses to significant
comments received from the public concerning the selection
of a removal action; and
o Responses to comments from states and other federal
agencies.
Enforcement Documents (Include if the document contains
information that was considered or relied on in selecting the
response selection or shows that the public had an opportunity to
participate in and comment on the selection of response action.
Do not include enforcement documents solely pertaining to
liability)
o Administrative orders;
o Consent decrees;
o Affidavits containing relevant factual information not
contained elsewhere in the record file;
o Notice letters to PRPS;
30 Individual names and addresses of members of the general
public which ar. on the community relations mailing list should
not be included in the public record file. Disclosure of such
information may result in a Privacy Act violation (see also section
III.H. at page 34) or inhibit the general public from requesting
information about the site. The lead agency should then place
individual names and addresses in the confidential portion of the
record file.
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OSWER Directive No. 9833.3A-].
o Responses to notice letters;
1 o Section 104(e) information request letters and Section
122(e) subpoenas; and
o Responses to Section 104(e) information request letters and
Section 122(e) subpoenas.
Other Information
o Index (see section II.D. at page 7);
o Documentation of state involvement (see section IV.A. at
page 42);
o ATSDR health assessments, health studies, and publ .c health
advisories (see section IV.C. at page 45): and
o Natural Resource Trustee notices and responses, findings of
fact, final reports and natural resource damage assessments
(see IV.D. at page 45).
Decision Documents
o LE/CA Approval Memorandum;
o Action Memorandum;
o Amended Action Memorandum; and
o Other documents which embody the decision for selection of a
removal action.
The administrative record serves as an overview of the
history of the site and should be understandable to the reader.
Appendix B provides a model file structure for organizing the
record file. Appendix C contains a model index.
C. Imminent and Substantial Endangerment
Und Section 106 of CERCL&, the EPA may find the existence
of an i snt and substantial endangerment to the public health
or welfare or the environment because of an actual or threatened
release of a hazardous substance.
Determining the existence of an imminent and substantial
endangerment is an important component in selecting the response
action. Therefore, all documents considered or relied on in
making that determination, including any risk assessment, and its
supporting documentation, must be included in the administrative
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OSWER Directive 9833.3A1
record f 15 •3t If there is proper documentation of the
determination of an imminent and substantial endangerment in the
record file, judicia]. review of.that determination .n an action
under Section 106 of CERCLA should be limited to the
administrative record.
D. Public Comments
The administrative record file should document the publi.c’s
opportunity to be involved in selecting a response action. Thi.s
can be accomplished by including in the record file all documents
related to the opportunity to participate (e.g., notices and fact
sheets), and relevant written comments and information submitted
by the public (e.g., reports and data).
Public requests for information (e.g., Freedom of
Information Act (FOIA) requests for copies of reports), need not
be included in the record file.
The lead agency should request that substantive oral.
comments (either in person or over the phone) be put in writing
by the commenter and submitted to the record file. The commenter
should be advised that the obligation to reduce the comment to
writing rests with the commenter. The lead agency, however, may
reduce it to writing where the lead agency will want to rely on
the comment.
The lead agency may respond to comments received prior to a
public comment period in various ways, depending on the nature
and relevance of a particular comment. The lead agency’s
consideration of such a comment may be in the form of a written
response, or reflected by documented actions taken after
receiving the comment, or even by changes in subsequent versions
of documents. If the lead agency prepares a written response to
a comment, the comment and response should be included in the
record file.
The lead agency may notify commenters that comments
submitted prior to a formal public comment period must be
resubmitted or specifically identified during the public comment
period ia order to receive formal response by the lead agency.
Alternatively, the had agency may notify a coameriter that the
lead agency viii respond to the comment in a responsiveness
summary prepared at a later date. The lead agency, however, has
31 See “Guidance on Preparing Superfund Decision Documents:
The Proposed Plan, The Record of Decision, Explanation of
Significant Differences, ROD Amendment,” OSWER Directive No.
9355.3—02, Jun. 1989.
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OSWER Directive No. 98)3.3A-].
no duty to respond to any comments received before the fori al
public comment period, or to respond to comments during the
public comment period until the close of the public comment
period.
The lead agency, however, is encouraged to consider, respond
to and include in the record file significant comments that were
submitted before the public comment period. Considering early
comments provides practical benefits both substantively and
procedurally. Early comments may provide important information
for the selection decision, and early consideration provides the
public (and, particularly, PRP’s) with additional informal
opportunities for participating in the decision making process. 32
All, comments received by the lead agency during the fortal
public comment period are to be included in the record file in
their original form, or if not feasible, an explanation should be
placed in the record file explaining why such comments were not
included. Comments received during the formal public comment
period must be addressed in the responsiveness summary (included
with the ROD in remedial response actions). The responses may be
combined by subject or other category in the record file.
Comments which are received after the formal comment period
closes and before the decision document is signed should be
included in the record file but labeled “late comment.” Such
comments should be handled as post-decision information (see
section III.N. at page 40).
Comments received after the decision document is signed
should be placed in a pest-decision document file. They may be
added to the record file in limited circumstances (see section
III.N. at page 40).
E. Enforcement Actions
The same procedures should be used for establishing an
administrativ, record whether or not a response action is
selected in the context of an enforcement action. The following
additional information, however, may assist the lead agency where
there is stiforcement activity.
E.l. Negotiation Documents
During negotiations with the lead agency, a potentially
responsible party (PRP) may produce documents and claim that they
See 40 C.F.R. 0*300.815(b), 300.825(a) (2) and (b)(2).
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OSWER Directive No. 9833.3A-l
constitute confidential business information (CBI) or offers of
settlement sub ect to Rule 408 of the Federal Rules of Evi.dence.
Generally, those documents are not part of the
adnu.njstrative record for response selection unless they are
submitted by PRPs for consideration in selecting a response
action and are considered or relied on in selecting the response
action. A privileged document which was considered or relied on
in selecting the response action should be placed in the
confidential portion of the record file. Such a document should
be summarized and the summary included in the publicly accessLble
portion of the record file (see section n.H. at page 19). If
the information cannot be summarized in a disclosab].e manner, the
information should be placed in the confidential portion of the
record file only and listed in the index to the file.
E.2. PRP—Lead RI/FS
Where a PRP is conducting the RI/PS, the PRP must submit all
technical information on selection of the remedial action
generated during the RI/PS to the lead agency. Technical
information includes work plans, sampling data, reports, and
memoranda. The lead agency, and not the PRP, will establish and
maintain the administrative record file (see “Interim Guidance on
Potentially Responsible Party Participation in Remedial
Investigations and Feasibility Studies,” May 16, 1988, OSWER
Directive No. 9835.la and “Model Administrative Order on Consent
for Remedial Investigation and Feasibility Study,” January 30,
1990, OSWER Directive No. 9835.10.)
PRP5 may be delegated responsibility for some record file
maintenance activities, such as housing the files at or near the
site. PRPs cannot, however, be responsible for decisions on what
documents comprise the record file, because of, among other
things, the potential for a conflict of interest.
E.3. Administrative Orders and Consent Decrees
Final administrative orders and consent decrees issued prior
to selection of the respons. action (e.g., ordering a PRP to
conduct the RI/PS), should be included in the administrative
record f il•. Administrative orders or consent decrees issued
after the signing of the ROD or the action memorandum should not
be included in the record file, unless the consent decree or
administrativ, order meets the criteria for the inclusion of
post—decision documents in the record file (see section III.N. at
page 40). Drafts of administrative orders and consent decrees
should not be included in the record file, unless the drafts
contain factual information that was considered or relied on and
is not found elsewhere in the record file.
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OSWER Directive No. 9833.3A-l
The issues relating to administrative records for
administrative orders and de minimis settlements are not
addressed by this guidance.
F. Excluded Documents
Certain documents should not be included in the
administrative record file because they are irrelevant to the
selection of the response action. Documents should be excluded
from the record file if they were not considered or relied on in
selecting the response action.
Material beyond the scope of the record file should be kept
in separate files maintained at the regional office or other
central location. These files need not be made publicly
available, although many of the documents in the files may be
available to the public if requested under FOIA.
Examples of documents that are irrelevant to the decision on
selecting a response action may include Hazard Ranking System
(HRS) scoring packages, contractor work assignments, cost
documentation (as opposed to cost effectiveness information), and
National Priorities List (NPL) deletion information. If,
however, these documents contain information that is considered
or relied on in the response action selection and is not
contained elsewhere in the record file, then the documents should
be included in the record file.
Information regarding PRP liability is generally not
included in the record file for selection of the response action
except to the extent such information (typically substance
specific) is considered or relied on in selecting the response
action. Documents relating to PRP liability, however, should be
compiled and maintained in the regional office or other central
location so that they are available at the time of notice to PRPs
or referral of any litigation.
C. Draft Documents and Internal Memoranda
In q.nsral, only final documents should be included in the
administx.tjve record file. The record file should not include
prelim.thy documents such as drafts and internal memoranda.
Such doG aI1it. are excluded from the record file because drafts
and int.rna]. memoranda are often revised or superseded by
subsequent drafts and memoranda prior to the selection of the
response action. The preliminary documents are, therefore, not
considered or relied on in making the response action decision.
Drafts (or portions of them) and internal memoranda should
be included, however, in three instances. First, if a draft
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OSWER Directive No. 9833..]A-.
document or internal memorandum is the basis for a response
decision the draft document or internal memorandum should be
placed in the record file. This may occur if the draft contains
factual information which was relied on but is not included in a
final document, a final document does not exist, or a final
document did not exist when the response decision was made.
Second. if a draft document or internal memorandum is
circulated by the lead agency to other persons (e.g., the support
agency, PRPs or the general public) who then submit comments
which the decisionmaker considers or relies on when making a
response action decision, relevant portions of the draft document
or the memorandum and comments on that document should be
included in the record file.
Third, if a draft document or internal memorandum explains
or conveys decisions on the procedures for selecting the remedy
or the substantive aspects of a proposed or selected remedy
(e.g., the scope of a site investigation or the identification of
potential ARARs), the document should be placed in the record
file, even though the document was signed by a person other than
the Regional Administrator and generated long before the decision
document was signed.
Examples of internal memoranda and staff notes which should
not be included in the record file are documents that express
tentative opinions or internal documents that evaluate
alternative viewpoints. Recommendations of staff to other staff
or management should also not be included in the record file,
except for those staff recommendations which ultimately embody a
final decision relevant to respons. selection. Drafts and
internal memoranda may also be subject to claims of privilege
(see section III.H., below).
H. Privileged Documents
Some documents in the administrative record file may be
protected rom public disclosure on the basis of an applicable
privilege. Any documents which ar. considered or relied on in
a respons. action selection, but withheld from the public portion
of the record fil, based on privilege, must be placed in a
confidential portion of the record file (see section II.H. at
page 19).
If a document i. excluded from the public portion of the
record file based on privilege, the relevant information should,
to the extent feasible, be extracted and included in the public
See 40 C.F.R. 1300.810(c).
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OSWER Directive No. 983).3A-].
record file. This can often be accomplished by deleting or
.redacting the privileged information from the document.
The privileges discussed below may be asserted with respect
to documents that are considered or relied on in the selection of
a response action. The head of the office responsible for
developing the document in question should assert the privilege.
In all cases, the official asserting a privilege should consult
with ORC.
Public disclosure of a privileged document may result in
waiver of the privilege, although the nature and extent of the
waiver will, depend on the privilege asserted and the
circumstances of the disclosure. If the privilege is waived and
the document becomes a public document, it must be disclosed to
any requester. In light of the potential for waiver, it is
important that personnel not release potentially privileged
documents to any party without consulting with ORC.
Deliberative Process
The deliberative process privilege applies to pre-
decisional, deliberative communications that express opinions,
advice, and recommendations of staff to other staff or
management. The privilege functions to encourage the honest and
free expression of opinion, suggestions and ideas among those
formulating policy for government agencies (see “Guidance for
Assertion of Deliberative Process Privilege,” 10/3/84).
In general, if a document contains factual information
forming the basis for the selection of the response action, the
factual portion should be included in the record file.
Use of the deliberative process privilege should be balanced
with the statutory mandate of including the public in the
response action selection process. The privilege should be
asserted if dieclosur. of the document will have an inhibiting
effect on frank and open discussion among government staff and
decisjonmakers. Documents should not be withheld solely because
they would reveal flaws in the case or information embarrassing
to the government. Specific procedures exist for assertion of
the delibsrativ. process privilege, which include consulting with
ORC.
confidential Business Information (CBI)
The EPA must withhold from the public record trade secrets
and commercial and financial information that is subject to
protection under 40 C.F.R. Part 2. However, Section 104(e) (7) of
CERCLA greatly restricts the assertions of confidentiality claims
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OSWER Directive No. 9833.3A-1
by PRPs at CERCLA sites. The decisionniaker should attempt to
avoid using CBI in making response action decisio s and can do so
in most cases by using other information instead. Where the
decisjonmaker must use cSI in making its decision, 40 C.F.R. Part
2 and Section 104(e) (7) of CERCLA will apply and such information
should be placed in the confidential portion of the
administrative record file.
Attorney Work Product
This exclusion applies to documents prepared in anticipation
of possible litigation. The work product privilege covers all
documents prepared by an attorney or under an attorney’s
supervision, including reports prepared by a consultant or
program employee. Litigation need not have commenced but it mu
be reasonably contemplated. These documents generally relate t
enforcement or defensibility of a decision and are not conside
or relied on in selecting a response action. These documents
should not, therefore, be in the administrative record file.
Attorney—Client communication
The attorney—client privilege applies to confidential
communications made in connection with securing or rendering
legal advice. The privilege is limited to communications where
there was an intention to keep the information confidential.
Personal Privacy
This exemption covers information about individuals in
personnel, medical, and similar files, the disclosure of which
would constitute a clearly unwarranted invasion of personal
privacy. The records must pertain to an individual, and not a
business, to be excluded from th. public portion of the
administrative record file under this exemption. Often,
information subject to the protection under the personal privacy
privilege can be r.dacted from the document and the redacted
version can be placed in the public portion of the record file.
State Scrsts
Th• lead agency is authorized to exclude from public
scrutiny information which, if released, would harm national
security or interfere with the government’s ability to conduct
foreign relations. This privilege could be particularly
important where the PR? is a federal agency or a contractor for a
federal agency. In the case of a federal facility cleanup, an
3’ See 40 C.F.R. §300.810(d).
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OSWER Directive No. 9833.)A-].
Inter—Agency Agreement should spell out procedures for ass rtLng
this privilege.
Confidential Informant
Statements obtained from witnesses who have been granted
confidentiality may be privileged.
Information Exempted by Other Statutes
Information specifically exempted from disclosure by a
federal statute need not be part of the public record. The
statute in question must leave no discretion as to the
requirement that matters be withheld from the public, or it must
establish particular criteria for withholding or refer to
particular types of matters to be withheld.
I. Guidance Documents
Guidance documents, or portions of guidance documents, that
are considered or relied on in selecting a response action should
be included in the administrative record file for that response
action. Any guidance documents generated to address issues that
specifically arise at the site for which the record file is being
compiled should be physically included in the record file.
Certain guidance documents, however, do not have to be kept in
the record file. Guidance documents not generated for the
particular site for which the record is being compiled may be
kept in a compendium of guidance documents maintained at the
regional office or other central location. 3 ’
Each Region should maintain a compendium of guidance
documents which are frequently used in selecting response
actions. As with an administrative record file, the compendium
of guidance documents must be available to the public, but only
at the regional office or other central location. The record
file located at or near the site should contain an index to the
compendium of guidance documents. The Administrative Record
Coordinator should maintain and update the compendium of guidance
documents. If a guidance document maintained in the compendium
is considsrd or relied on when making a response action
decision, th. index to the record file must list the document and
indicate its location and availability. See also Appendix E.
If a guidance document is listed in a bibliography to a
document included in the record file (e.g., listed in the
bibliography to the RuTS), it need not be listed again in the
See 40 C.F.R. 0300.805(a) (2).
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OSWER Directive No. 9833.3A-1
index to the record file. In this case, however, the index must
state that documents listed as bibliographic sources might not be
listed separately in the index.
If a guidance document which is not included in the guidance
compendium is considered or relied on in selecting the response
action, the document should be physically included in the record
file.
J. Technical Literature
Technical literature generated for the site at issue should
be physically included in the administrative record file for that
site, whether or not it is publicly available.
Similarly, technical literature not specifically generated
for the site which is not publicly available should also be
included in the site-specific record file. Such documents
include technical journals and unpublished documents that are not
available through the Library of Congress or not circulated to
technical libraries.
Publicly available technical literature not generated for
the site, however, need not be located at or near the site or at
the regional office or other central location i 6 the documents
are referenced in the index to the record file. These
documents do not have to be physically included in the record
file, unless requested, because they are already available to the
public. Copying such documents creates a significant burden to
the lead agency and copyright laws may pose additional barriers
to such copying. Examples of publicly available technical
literature include engineering manuals, groundwater monitoring or
hydrogeology textbooks, ATSDR toxicological profiles, and
articles from technical journals.
If technical literature is listed in a bibliography to a
document included in the record file (e.g., listed in the
bibliography to the RI/PS), it need not be listed again in the
index to the record file. In this case, however, the index must
state that documents listed as bibliographic sources might not be
listed separately in th. index,
Coaputsr models and technical databases need not be
physically included in the record file but should be referenced
in the index to the record file and made available upon request.
Printouts or other documents produced from the models and
databases should be physically included in the record file if
See 40 C.F.R. §300.805(b) (3).
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OSWER Directive No. 9833.3A-1
such documents contain information which was considered or relied
on in selecting the response action.
K. Legal Sources
Copies of statutes and regulations cited in documents
included in the record file need not be included in the record
file if they are readily available to the public. For example,
the NCP and other regulations are easily accessible since they
are published in the Federal Register and the Code of Federal
Regulations (C.F.R.).
Copies of the actual standards (statutes or regulations)
comprising federal and state ARARS should be physically included
in the record file if they are not easily accessible. Also,
other federal and state criteria, advisories, and guidance
documents pertinent to the site (e.g., what the EPA refers to as
“TBCs,” or standards “to be considered”), may not be easily
accessible. If such documents are cited in an RI/FS, appendix to
the RI/FS, EE/CA, or ROD, those advisories which are not readily
available should be included in the record file.
L. NPL Rulemaking Docket Information
Generally, information included in the National Priorities
List (NPL) rulemaking docket, such as the Hazard Ranking System
(HRS) scoring package and comments received on the listing, need
not be included in the record file for selection of a response
action. The NPL docket contains information relevant to the
decision to list a site, which may be irrelevant to the decision
on response action selection.
Documents in the NPL docket which contain sampling data or
other factual information which was considered or relied on in
selecting a response action should be included in the record file
if the information is not available already in the record file.
Such information may include early sampling data taken by parties
other than the lead agency or its contractors (e.g., a State).
M. RCRA Docum.nts
If action is taken under CERCLA at a site with a history
of Resource Conservation and Recovery Act (RCRA) activity, much
of th. information relating to those RCRA activities may be
considered or relied on in making the CERCLA response action
selection. Any relevant RCRA information, particularly
information on waste management and RCRA corrective action at the
site, should be included in the administrative record file (e.g.,
RCRA permit applications, inspection reports, RCRA Facility
Assessment (RFA), RCRA Facility Investigation (RFI), Corrective
39
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OSWER Directive No. 9833.3A-1.
Measures Studies (CI !S), or responses to RCRA information
requests).
Not all pre—existing RCRA information will, be considered or
relied on in selecting a CERCLA response action, but informati.on
on types of wastes, quantity of wastes, and observations of
potential threats gathered during RCPA investigations generally
will be considered and thus should be included in the record
file.
N. Post—Decision Information
In all cases, documents generated or received after signing
the decision document should be kept in a post-decision document
file. This file is not part of the administrative record file
and should be maintained only at the regional office or other
central location.
In general, pest-decision documents should not be added to
the administrative record file. Since the record file contains
the information which was considered or relied on in selecting
the response action, documents generated or received after
selecting the response action are not relevant to that response
decision and should not be included in the record file. Such
documents may, however, be relevant to later response selection
decisions and, if so, should be included in th. record file
pursuant t3 Section 300.825 of the NCP.
Documents kept in the post—decision document file may be
added to the record file in the situations described below:
o Where a decision document does net address or reserves a
portion of the decision to be made at a later date. 37 For
- example, a decision document that does not resolve the type
- of treatment technology. In such cases, the lead agency
should continue to add documents to the record file which
form th. basis for the unaddress.d or reserved portion of
the d.cision;
o Wh.rs t er. is a significant change in th. selected response
action. changes that result in a significant difference
to a basic feature of the selected remedial action (e.g.,
tiainq, ARAB), with respect to scope, performance, or cost
40 C.F.R. *300.825(a) (1).
40 C.F.R. *300.825(a) (2). See 40 C.F.R. *300.435(c) (2) (i)
40
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OSWER Directive No. 9833.3A-L
may be addressed in an explanation of significant
differences. Section 117(c) of CERCLA states:
(a]fter adoption of a final remedial action plan -
(1) if any remedial action is taken, (2) if any
enforcement action under section 106 is taken, or
(3) if any settlement or consent decree under
section 106 or section 122 is entered into, and if
such action, settlement, or decree differs in any
significant respects from the final plan, the
President or the State shall publish an
explanation of the significant differences and the
reasons such changes were made.
The record file should include the explanation of
significant differences, underlying documentation for the
response action changes, any significant comments from the
public, and the lead agency responses to any significant
comments. A formal public comment period is not required
for an explanation of significant differences;
o Where the changes are so significant that they fundamentally
alter the very nature or basis of the overall response
action. uch changes will require an amended decision
document. The Region will decide whether a change to a
response action is considered a significant or a fundamental
change for purposes of addressing the change (see Chapter 3
of “Interim Final Guidance on Preparing Superfund Decision
Documents: The Proposed Plan and Record of Decision,” June
1989, OSWER Directive No. 9355.3—02).
When the decision document is amended, the amended decision
document, the underlying documentation, any significant
comments from the public, and the lead agency’s responses to
any significant comments, should be included in the record
file. 0D amendments will require a formal public comment
period;
o Where comments containing significant information are
submitt.d by interested persons after the close of the
public comment period. The lead agency must consider such
co ta only to the extent that the comments contain
significant information not contained elsewhere in the
record file which could not have been submitted during the
public comment period and which substantially support the
40 C.F.R. 1300.825(a) (2).
40 C.F.R. §300.435(C) (2) (ii).
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OSWER Directive No. 9833.3A-1
need to significantly alter the response action.”
Documents meeting this test should be included in the record
file, along with the lead agency’s responses to the
significant comments, whether or not such information
results in a change to the selected decision. In this case,
the comments and the lead agency responses to such comments,
including any supporting documents, should be included in
the record file; and
o Where the lead agency holds public comment periods after the
selection of the response action.’ 2 The lead agency may
hold additional public comment periods or extend the tune
for submission of public comment on any issue concerning
response sel ction. Such comment should be limited to the
issues for which the lead agency reqi.iested additional
comment. All comments responsive to the request submitted
during such comment periods, along with any public notices
of the comment period, transcripts of public meetings, and
lead agency responses to the comments, should be placed in
the record file.
IV. INVOLVEMENT OF OTHER PARTIES
A. States
A.l. State Involvement in Federal-Lead Sites
The administrative record for a federal-lead site must
reflect the state’s opportunity to be involved in selecting the
response action. The record for a remedial action should include
documents that reflect at least the followir g state participatucr
or the opportunity for state participation:’
o Letter to state requesting identification of ARARs and the
final response from state identifying ARABs (and
certification from the state);
o Comments, or the opportunity to comment, on a proposed
finding or decision to select a response action not
attaining a level or standard of control at least equivalent
to a state ARAB;
40 C.F.R. 1300.825(c).
‘ 40 C.F.R. *300.825(b).
See also Section 121(f) of CERCLA
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OSWER Directive No. 9833.3A-].
o Comments, or the opportunity to comment, on the final draft
RI/FS, the proposed plan and EPA responses to the comments;
o Significant post-decision comments by the state and EPA
responses to the comments (place in the post-decision
document file for possible inclusion in the record file -
see section III.N. at page 40).
The administrative record for a removal action should
reflect any state participation, especially any state comments
and EPA responses to the comments.
The record file should only include final state comments,
unless the comments explain or convey decisions on substantive
aspects of a proposed or selected remedy (e.g., the scope of a
proposed action or the identification of potential ARARs). Any
preliminary deliberations between the state and EPA relevant to
the response selection need not be part of the record file if
superseded by documentation of the state’s final position.
The governing body of an Indian tribe should be afforded the
same treatment as a state in accordance with Section 126 of
CERCLA.
A.2. Federal Involvement in State-Lead Sites
Where a state has been officially designated the lead agency
for a CERCLA site, the state must compile and maintain the
administrative record for that site in accordance with Section
113(k) of CZRCLA and Section 300.800 of the NCP. Since EPA has
ultimate responsibility for both the selection of a response
action (e.g., EPA signs the ROD) and the record on which that
response action is based, EPA must participate in compiling and
maintaining the record. In such cases, EPA must assure that the
record file forms a complete basis for the selection of the
response action.
The state as lead agency must maintain the record file at a
state office (e.g., th. state’s central environmental agency
office) and at or near the site. At a minimum, the state as lead
agency also must transmit a copy of the index, the RI/FS work
plan, ths kt/FS released for public comment, the proposed plan,
and any public comments received on the RI/FS and the proposed
plan to the appropriate EPA Regional office.” These documents
should be transmitted to EPA as they are generated or received.
Transmittal of the index will not suffice. In addition, other
documents may be requested by EPA on a case-by-case basis.
‘4 See 40 C.F.R. 300.8O0(c).
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OSWER Directive Mo. 9833.3A-:
The Superfund Memorandum of Agreement (SMOA), or Cooperati.Ve
Agreement (CA), must address the administrative record
requirements. The following language should be included in the
SMOA or CA where the state has been officially designated the
lead agency for a CERCL.A site:
The state must compile and maintain the administrative
record upon which the selection of the (remedial,
removal] action is based. The compilation and
maintenance of the record must follow 40 C.F.R. Part
300, Subpart I and EPA guidance on the administrative
record. The administrative record must be located at
the state (environmental agency] office, and at or near
the site. In addition, the state must submit copies of
the index, the RI/FS workplan, the RuTS released for
public comment, the proposed plan, and any public
comments received on the RuTS and proposed plan to the
EPA Regional office, as they are added to the
administrative record file. In addition, the state
must submit other documents that are requested by EPA.
The state shall comply with Section 113 of CERCLA and
any applicable regulations. EPA may require the
retention of other documents for cost recovery
purposes.
The record file compiled by the state should reflect EPA’S
participation, comments, concurrence, and disagreements at the
same stages as are required for state involvement in a federal-
lead site. The state must place in the record file any documents
submitted by EPA for inclusion in the record file.
B. Federal Facilities
Federal agencies have the responsibility, pursuant to
Executive Order 12580, to establish the administrative record for
federal facilities under their jurisdiction, custody, or control
where using CERCLA authority for a response action. The record
file for a federal facility must include all documents considered
or relied on in selecting a response action, including documents
submitted by EPA on the selection of the response action. The
federal agency must comply with all NCP (see Appendix M) and
CERCL& requirement. in compiling and maintaining the record,
including the minimum public pazticipation requirements in
Sections 113 and 117 of CERCLA.’
See 40 C.F.R. §300.800(b).
44
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OSWER Directive No. 9833.3A-1
The federal agency must maintain the record file at or• near
•the site and ensure easy public access to the record file. If,
for example, a site is a Department of Defense facility, the
record file should be housed in a location which does not require
military clearance for access. The federal agency should keep a
complete copy of the record file at a location within the federa].
agency office comparable to an EPA Regional office.
At NPL sites and any other site where EPA is involved in
selecting a response action at a federal facility, EPA must
participate in compiling and maintaining the record. In such
cases, EPA must assure that the record file forms a complete
basis for the selection of the response action. At a minimum,
the federal agency must transmit a copy of the index, the RI/FS
workplan, the RI/FS released for public comment, the proposed
plan, and any public comments received on the RI/FS and proposed
plan to the appropriate EPA Regional office. These documents
should be transmitted to EPA as they are generated. Transmittal
of the index will not suffice. In addition, other documents may
be requested by EPA on a case-by-case basis. Inter-Agency
Agreements (lAGs) should spell out procedures for compiling and
maintaining the record.
C. ATSDR
Participation in the selection of a response action by the
Agency for Toxic Substance and Disease Registry (ATSDR) should be
reflected in the administrative record. The record file must
include the initial and subsequent health assessments and any
other information EPA solicits and obtains from ATSDR which EPA
considers or relies on in its selection of a response action.
Draft versions of the health assessment and other draft
documents upon which ATSDR comments should not be included in the
record file. If, however, EPA solicits comments from ATSDR on a
draft document such as a draft work plan or RI report, and
receives formal comments from ATSDR which EPA considers or relies
on in selecting a response action, then the document and comments
should bs included in the record file.
In the event that the ATSDR health assessment and EPA’s risk
assessmsat appear inconsistent, a document explaining the
differencs should be generated and placed in the record file.
D. Natural Resources Trustees
Section 122(j)(l) of CERCLA requires that the EPA give
notice to the Natural Resources Trustee of a release or
threatened release of any hazardous substance which may have
resulted in damages to natural resources. The administrative
45
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OSWER Directive No. 9833.3A-l
record file must include the notice to the Natural Resources
Trustee, and any subsequent final communications (e.g., a release
or final report). In addition, any factual information provided
by the Natural Resources Trustee which is considered or retied on
in selecting a response action should be included in the record
file.
In the event that the Natural Resources Trustee’s damage
assessment and EPA’S risk assessment appear inconsistent, a
document explaining the difference should be generated and placed
in the record file.
V. DISCLAIMER
The policies and procedures established in this document are
intended solely for the guidance of employees of the U.S.
Environmental Protection Agency. They are not intended and
cannot be relied upon to create any rights, substantive or
procedural, enforceable by any party in litigation with the
United States. EPA reserves the right to act at variance with
these policies and procedures and to change them at any time
without public notice.
VI. FURTHER INFORMATION
For further information concerning this memorandum, please
contact Gary Worthman in the Office of Waste Programs Enforcement
at FTS (202) 382—5646.
46
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OSWER Directive No. 9a33.A-].
GLOSSARY
Administrative Record : as used in this guidance, the body of
documents that were considered or relied on which form the basis
for the selection of a response action.
Administrative Record File : as used in this guidance, the
ongoing collection of documents which are anticipated to
constitute the administrative record when the selection of
response action is made.
ARAR : applicable or relevant and appropriate requirements (see
Section 121(d) of CERCLA).
ATSDR : Agency for Toxic Substance and Disease Registry.
: cooperative agreement (entered into with a state or local
government to transfer funds to conduct response activities).
confidential business information.
CERCLA : Comprehensive Environmental. Response, Compensation, and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986 (also known as Superfund).
C.F.R. : Code of Federal Regulations.
: corrective measure study (RCRA corrective action document,
equivalent to an FS).
: Community Relations Coordinator.
: community relations plan.
Document : as used in this guidance, includes writings, drawings.
graphs, charts, photographs, and data compilation from which
information can be obtained. It does not, however, include
physical .a ples.
Q : Dspaxt .nt of Justice.
engineering evaluation/cost analysis (removal document).
: United States Environmental Protection Agency.
Q: Environmental. Services Division.
Ex 1ariation of Sianificant Differences : post—ROD document
described in Section 117(c) of CERCLA.
47
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OSWER Di.rective No. 9833.3A-1
FOIA : Freedom of Information Act.
f : field sampling plan.
ff : Hazard Ranking System.
I : inter-agency agreement (made with a federal agency).
Lead Aaencv : the agency that provides the OSC or RPM to plan and
implement a response action under the NCP.
: National Oil and Hazardous Substances Pollution Contingency
Plan, as revised on March 8, 1990 (55 FR 8859).
rn: National Priorities List.
Q : EPA Office of Enforcement.
OERR : EPA Office of Emergency and Remedial Response.
OIRN : EPA Office of Information Resources Management.
O erable Unit : a discrete action that comprises an incremental
step toward comprehensively addressing site problems (see secticn
300.5 of the NCP).
Q : EPA Office of Regional Counsel.
Q : On—Scene Coordinator (project manager for a removal acti.on)
OSWER : EPA Office of Solid Waste and Emergency Response.
OWPE : EPA Office of Waste Programs Enforcement.
: preliminary assessment.
: potentially responsible party.
OAPP : q aality assurance project plan.
: r. sdial action.
the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act.
RQ: remedial design.
RuTS : remedial investigation/feasibility study.
48
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OSWER Directive No. 9833.3A-i
: RCRA facility assessment (RCRA document, equivalent o a
PA/SI)
EE l: RCRA facility investigation (RCRA corrective action
document, equivalent to an RI).
RQ : Record of Decision (documents the selection of a remedial
action).
remedial project manager (project manager for a remedial
action).
sampling and analysis plan.
SARA : Superfund Amendments and Reauthorization Act of 1986 (sat
CERCLA above).
Site File : the file containing all site documentation.
: site investigation.
SMOA : Superfund memorandum of agreement (made with a state).
Suo ort Aaencv : the agency that provides the support agency
coordinator to furnish necessary data to the lead agency, review
response data and documents, and provide other assistance as
requested by the lead agency. The support agency may also concur
on decision documents.
49
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SECrIOK 1 .13 (3) 0? CERCtA
J) Ji 1CiA1. Rzvtzw —
L L rrArtON —Zn any judicial act o under this Act. :udi-
c al revtew u( any LUUU cancer i.ng th. aoequacy 31 any re.
sconse act on ta en or ordered by tba President thail be j &t.
ed to the adinzstrativ. record.. Otherwise appilcacte pn.nci-
pies of ad .oiatrative law shall govern w ether any supple.
mental at.ra.Ls may be considered by the court.
t2) ZIDAID.—ln considaring objocoons raised in any judi .
cial action under this Act, the court hall uphold the Prem.
dent’s decision in s.lecnng the nespou ac on unles, the ob’
jecnng party can de onatTato, on the administrative record,
that the decision was arb i vy and capritious or otherwise not
in accordance with law.
(3) R r. —If the court ends that the selac on of the r
sponse ac on was arb1 ’az7 and capricious or otherwise not in
accordance with law, the court AsIl award iA onLy the re.
spouse coats or damages that are not inconsistent with the na•
tional contingency plan . and (3) such other reUsE as is consiat
ant with the Nat ona1 Continqency Plan.
(4) PaO UIAL fl1 OU I.ft reviewing alleged procedural
errors. th. court ay 4inll w oi1a or damage. only if the
errure were so serious and r.la’ to masters of such centiaL
relevance to the action that the ac on wouLd have been
ca tly changed had such s rs am bean mad.
50
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3Zc ::N . ; :r CERcj ,
k. RECOR,O ¼. JO P .CP*T!o r P OCZ LRZ5.—
L) A.DMn rsreATIv! ftECORD —The Pesioent maLl estaci
an p !ra strac1ve record upon iic the ??esident snaLl case
the selection of a response ac:ion. The ao i . tr ve record
shall be available to the puOli at or sear the facility at .uue.
The President aLso ay p&ace dupucaces of the aimLrUstratIve
record at any ocher Location.
2) PA&ricwArlot4 PftOCWVRI.t—
‘Al Rz iov&j. AcTioN—The President shall Promulgate
reguiacxons in accordance with chapter 5 of title 5 of :he
C naced States Code estabLishing procedures for the appro.
pr.ate participation of interested pereons in the deveiop.
ment of he admzmstracive record on which the President
will base the selection of removal actions and on which ju.
dicial review of removal actions will be based.
3) R t z. ACT ION—The President shalL provid, for
the participation of interested persons. including potential-
ly responsibl, parties. in th. development of the “ -
t?ative record on which the President will baa, the selec-
tion of remedial actions and on which judicial review of re.
medial actions wall be based. The procedures developed
under this subparagraph s1 11 include, at a “um.
each of the followtngt
U) Notice to potentially_affected persona and the
pubLic. which shill be .nisd by a brief analysis
of the plan and alternativ, plans that consid-
ered.
(ii ) A reasonable opportunity to comment and pro.
vid. inforatio regarding the plan.
(iii) An opporcunat ova puolic meeting in the af-
fected attn. in accorosacs with section 117(aX2) (relat-
ing to pubLic_participation).
(iv) A response to each of the 9’ i ant commenie.
and uw data submitted in written or oral
presentations.
(v) A statement of the basis and purpose of the
lasted action.
___ of this subparagraph, the administrative
t 4 this subparagraph and all i ds.orthed in the
second ssnt of section 117(d). The Pr dsn; “. “ oro.
mulgate regulations in accordance with chapter 5 of tit). S
of the Uni Stases Cods to cony out the requiremente of
this subpsragrsp
(C) brrnsn asroin.—TJntil such regulations inalr sub.
paragraphs (A) and ( B ) are mulgr.t the admiDi
tivs record “ consist of al l jt ms developed and re ’
pw ans to current_procedures for , el ctinn of the
response action. incl”fing procedures for eke psrtisips n
of insizegad parties and the public . The development of an
admini sdv, rsourd and the selection of response action
ei,ii4im ’ this A ‘s’ not includ . an adjudlcstory hsaring.
(D) Poresrrza&z.y oti” - ’ p*er .—Th. Preddeat
sh.I1 • gs son l effores to identify and notify poten’
tially responsible peruse as early as p hl . before sUe-
tion oft response action. Nothing in this psagraph’ ”
be consu’u.d to be a defense to liability.
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p?E L.( $
MODEL FILE STRUCTURE
This mode] ti l . structure n ay be Used to c mpi].e an
record u. for a remedial action, a removal. act .on.
or a com inatLon Cf both remedial and removal actions. If the
record documents a remedial action decision, section 2 of the file
L11. contain only those removal action documents which (a) predate
the remedial record of decision and (b) ars relevant to the
selection of the remedial action. If the record documents a ret tova .
action decision, sections 3, 4, and 5 of the file will contain only
those remedial action documents which (a) predate the removal act n
temorandum and (b) ar. relevant to tli. selection of the removal
actiart.
J stifiCatiOfl is unnecessary for file categories without any
documents. rho.. categories should be left out of the index.
A document should be filed in only one category, even if it
falls into mere than en. category. It may be referenced in another
cat•gory. If necessary additional subcategories ay be developed
to accommodate documents net falling in any of the defined
subcategories. Avoid adding categories of miscellaneous documents.
The correspondence subcateqory can include comments and
responses specific to the category. If the comments arid responses
are general in nature or address mor. than erie category, they may be
included in the public participation category.
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:N:z.c :F:aS Dcc N-r:
1.0 SITE ID lTI?ICATION
1.1 Background - RCPA and other Lnformat on
1.2 Notificatian/$itl Insp*ct2 .on Reports
l..3 PreLiminary ASSI5 5 5flt (PA) Report
L.4 S .ts rnv.stJ.gatiOfl (SI) Report
1.5 Previous op.rabl* Unit Information
2.0 R (0VA .L RESPOt4SE
2.1 Sampling arid Analysis Plans
2.2 SampLing and Analysis Data/Chain of Custody Forms
2.3 EE/CA Approval. Memorandum (for rton-tims—critical. re
2.4 LE/CA
2.5 Action Memorandum
2.6 Amendments to Action M.morindua
3 • 0 R UDZAL INVESTIGATIOM (RI)
3.1 Sampling and Analysis Plan (SAP)
3.2 Sampling and Analysis Data/Chain of Custody Forms
3.3 Work Plan
3.4 RI Reports
4.0 FEASISILITY S DY (PS)
4 • 1. MAR Determinations
4 • 2 PS Reports
4 • 3 Proposed Plan
4.4 Supples.nts and Revisions to the Proposed Plan
5.0 RECORD 0? OCIS20 (ROO)
5.3. ROD
5.2 Amen ta to ROD
5 • 3 Explanstiona of Significant Differences
6.0 STATE COCIDIIA?ZOI
6.2. Cooperat iv. Ae .ssnt$/S$OAS
53
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7.0 ENFORC lT
7.1. Enforcasent History
7.2 Endafl5Sr ertt A5SS 5S Sflt 5
7. Administrative ord.rs
7.4 consint Decrees
7• Atf .daV .tS
7.6 DocumentatiOn of Thchnical Discussions w2.th PRPI on
Response Actions
7.7 otic. Z.sttsrs and Responses
8.0 I ALTM ASSESSMENTS
8.1. ATSOR Health Assessments
8.2 ToxicoLogical Profiles
9.0 WAIVPAL RESOUICE TRUSTEES
9.] Notices Issued
9.2 Findings of Pact
9.3 Reports
PUBLIC PARTICIPATIOII
10.2. Coa snt 5 and Responses
2.0.2 Cosmunity Relations Plan
2.0.3 Public Notice(s) (Availability of the Administrative Record
Pu., Availability the Proposed Plan, Public Meetings)
10.4 Public Meeting Transcripts
10:5 Dociaentatian of Othsr Public Meetings
10.6 Pact Sheets and Prsss Releases
10 • 7 Responsiveness s’ ry
10.8 Late CfT ’%ta
1.1 • 0 TImZ L $ S AID ZDAM OO S
11.1 EPA Msadquart.r$ Guidance
11.2 EPA R.gienal Guidance
11.3 State GuidanCe
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::.4 ;e: ;a : S: r:es
53
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APPENDIX C
MODEL INDEX
Attached is rt •xCsTpt of the tndsx of dccu tsnts included ,
the Administrative Record for the toys Canal Site. The Index L .sts
the doc snti according to the EPA file Strl.lcture (category rtu .ber).
e Index includes the following information fields:
;CC MENT KVMBER.... indicates the first and last page numbers of
the document. Both page numbers wi,ll be the
same for one-page documents. Itt this
particular index, the document number
consists of a three l.tt.r sits code
followed by microfilm reel and frame
numbers.
. indicates the title or an enhanced
description of the document in parentheses.
AUTHOR. ••... indicates the author or primary originator
and the author’s corporate affiliation.
RECIPIENT.......... indicates the address.. or primary recipient
and the addressee’s corporate affiliation
DATE ...... indicates document dat. by month/day/year.
/ / means no dat. was available.
indicates the document type.
CATEGORY........... indicates the EPA Li i . structure number.
56
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APPE 4DIX 0
MODEL POSITIOPf DESQIPtION ?OR ADMI$ISTRATIVE RECORD COORDtNkrOR
tWrRCDUcTIpg
The cu .nt serves as an Admjnj tratjve Record Coordinator n
: e of the Regional off ices of the Environmental. Protection Agency
PM. :Each Region may want to add an introduction to Sup.rfund
and the Regional office here.) Th. incumbent is responsible for
c mpil .ng and aintaininq administrative record files for CERC.A
(S.Lperfund) response action decisions.
Section 113(k) of CERCZIA requires the establishment of an
administrative record upon which the selection of a response act.on
is based. Such a record is a compilation of all documents which e
Agency considered or relied an in making its response action
decision. Judicial review of any issues concerning the adequacy of
any response action decision is limited to the administrative
record. Public participation in the development of the record is
required by law.
Establishment of thorough and complete administrative records is
essential to EPA ’s Superfund program. Administrative records which
include public participation and withstand judicial scrutiny allow
EPA to meet its goals and objectives.
The incumbent viii be responsible for compiling and maintaining
administrative records for larg. numbers of Superfiand sites. Each
record require, coordination with many people including: Federal.
staff, state and local officials, private contractors, the general
public and potentially responsible pasties. Further
responsibilities include deliberation, over which materials to
include in each record and requirements far dealing with pxivil.qsd
materials.
MA701 TT25 AND R5 NIThXL .. _ . .
1. The incumbent is re.ponsibl.. for compiling and maintaining all.
of the administrative records for selection of CUCIè response
actions for a Regional office of the EPa. The incumbent must
have complete .vledqs of all raise and procedures governing
development of the administrative record files.
2. Receives and rsvi.vs *11 documents submitted by the Remedial
Pro ject F asqr (IPII), On.Scene Coordinator (OSC), Office of
Regional Cowissi (ORC) and other appropriate staff for inclusion
in the administrative record files. The thcumbent viii.
coordinate with staff responsible for deciding what documents
as. included in the record and will arrange for adding documents
to the record file.
57
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3. co 1pLles the ad LnLStrat. /e rec:r file for each CERc
response action. This L ClUdes lagging the reee pt :f ea:
oc ment. a ta flLng a central ast.r fil. of documer.ts,
-edacting f 4CLOfl from Pr1v .leqed document., as recte
:j CRc. ai air. g any prLV .leged port .ans of each rec:
..sirtg Agency security —easures. arranging for copy ng of
.r each record and transmitt.ng tt. docw tertts .:
appr:pr a e repO5Ltor .eS.
.1. Coordinates the comp .lat on of the administrative record
files with stat. and federal agencies. This includes
receiving records maintaLned by state and federal agencies
and notifying appropriate personnel of these records f r
their review.
5. Maintains and updates (monthly) an index of each
administrative record file in conformance with Agency
gtndel . ines.
6. Ensures p .ablic access to administrative record files. Ti .s
includes notifying the public of the availability of the
record. making the record available for public inspection,
coordinating with personnel at th. facility where the record
is located, maintaining an adequate copying facility and
maintaining a log of persona reviewthg documents. The
incum ent will, have to respond to phone calls and vLs i tors
wanting information on and from the record. These fi.rnct crs
will be coordinated with the Office of Public Affairs and
Superfund Community Relations Coordinators.
7. Maintains the Regional Superfund Central Library of glaidance
documents and technical references.
CON’r20! .a OVI1 1011
The incumbent works und•r the general supervision of the
[ Hazardous Vaste Branch Chief 3. An administrative record is
reviewed and certified for litigation by a parson designated by
the Regional Administrator.
53
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COMPE?4OEUM OF CERCLA
RE5PO SE SELECTION
GUIDANCE DOCUMENTS
USERS MANUAL
U.S. YTRONMENTAI. PIOTECTION AGENCY
omcz o WASTE P*OO*AM$ ZZ4POLCSMENT
MAY 1919
59
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T SLE OF CO uTE TS
\r’ODL.CT:C\
) Y. ER’. rE%’ CF C 1PEND(UM LSE
LSE BY EP’. PERSO ’ .\EL
LSE BY THE PUBL(C
3) STRUCTURE OF THE COMPENDIUM
3 1 FILE $Th JCTt.RE
3 INDEX STRLCTURE
40 UPDATING THE COMPENDIUM... .
4 I REGIONAL INPUT .
42 K.EEPNG THE COMPENDIUM CURRENT
LIST OF TABLES
Tibia fiu
3-i COMPENDIUM CATEGORIES AND NUMBER SERIES
A e tdiz
(A) REGIONAL COMPENDIUM LOCATIONS AND AOM 4TSTRATIV1 RECORD
COORDINATORS
(B) COMPENDITJM OF CUCLA LESPONSE SELECTION GUIDANCE DOCUMENTS
INDEX
60
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I 0 C’TRODCCTION
This manual describes how to se the C3mOendium ( CERCLA Response SeIec:.: t
G .. Dccuments .C m e idium, EIch L S E Ir n e i 1l P? cec:.c, A en: . E? .
R 3 0 1 tfi.e mainr ins a om endium Of guidance documeius frequently .s
eIo ment a. .i teie :.on of response actions under the Comprehensive En .ironrnen:at
R s onse. Compensation. and Liability Act (CERCLA).
EPA Headquarters used several sources to develop the initial CompendiiArn. These ;c.. :es
r c uded a pampislet titled SeIec:ed Technical Guidance for Superfund Projects’ (OSVv ER
Directive 9200.7-01); the OSWER Directive Systein the Siaperfund. Resource Conservation z
Recovery Act (RCRA). and Enforcement dockeis; the Hazardous Waste Collection Database. and
any esisting regional compendiums. The documents in the Compendium are referenced in
administrative records for decisions on selection of response actions.
The administrative record deicribed hers is the body of documents chat form the basis for
selection of a CERCLA response action. Establishment of the 1dminsstrp ve record is required
by § 113(k) of CERCLA. An admsnistratsve record is he compilation of documents considered or
relied on by EPA in making a decision. Documenn that EPA anticipates will be included in the
administrative record when the decision on a response action selection is made, ar. referred o as
the ‘administrativ, record file.’ Guidance documente, or portions of guidance documents, that
are considered or relied on in selecting a CERCLA response action should be part of an
administrative record file.
Certain frequently used guidance docugente may be referenced in the index to an
administrative record but not physically included in the administrative record file. The reference
should indicate the title aid location of any documeate included in the administrative record but
maintained ii the Compendium, which is kept at a central regional location . If a guidance
document that listed is the Compendium is considered or relied on in setectin the response
action, the ds must he physically included in the administrative record file. The
Compendium l s reduce the burden of copying and sserin multiple copies of frequently used
guidance dsc
Section 2.0 of this manual briefly discusses use of the Compendium by EPA personnel and
the public. Section 3.0 discusses the Compendium’s file and india structure. Documenta in the
Compendium age riled in tbee.nn binders sad listed on an ides which ii generated by and
(1)
61
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‘ asnuirted n a ;omouter daCa ue Pr cedutes for i p4ating the C mpend&um ire :ree :e
Se t c 10
: a OS US EW OF COslPE DlU\1 1St
The Cm;et i im .s incert ed for se by two groups: EPA ;ersonnel. e : :;
;( es;cnse i on setec:ioia artd aOminiscr3cive record de’ieto mertt. arid the ;u lic. f r . ea -.
t e cs referenced irt the i tde* an 3dmInhstrat ve record.
Tite ser should note that althcu$h he term $u&danCS ’ ii often med i t dis:. ssn; : e
C m endium. t does riot imply that only $u&daLtce documents are inCluded. The docurneics —a.
also be oIccmes. memoranda, ctaificstions, case studies, manuals, handbooks, reports, and thet
documents used in the slection of CERCLA response &ctlonl.
2.1 5E BY EPA PERSONNEL
EPA personnel use he Compendium prcmudy to reference frequently used Iwdance
documents that may bs maintained in the Compendium rather thu physically t Luded n each
admin siruive record file. The inde x must indicate which documents an physically located in
the Compendium and must specify the location and accs zbilhty of the Compendium The rtde
should also referenc only the specific documanu in the Compendium that were considered or
relied on for the s*ts for which the racord is bliol coapsiod. The index should not reference te
entmre Compendium.
2.2 USE BY ThE PUILIC
As with a y unrsseicmd document included in a record, the Compendium documents are
a cewbls for public re mw. When EPA pubIls a of availability of saadmiaiatntiv.
record file, ches endos will Isoludo the london .1 the Compendium. The Compendium will be
avaiuibli for viswia as a osnaul rs ioul .smblishmsst (for e ’pls, the EPA Regional
Office), and ed or n the ha for which the record is bsin$ compiled. (Si. Appendix A for
a list of the : 01 inch nloedi copy of the Compendium sad the enm of the R. ioul
Ad Uad’S Riesed Coc,dlas*or$.)
(2)
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3.0 STRUCTURE OF THE CO tPENDtL ’4
C rrentty. the C3m:efld m S O I3ni&ed uuo 10 c zegories An O er tew f he f. e
presented Ow s *ell s a 4’ c .iss ori of he nde th3t .dent (.es :he
• u4e ri the C rn;en ium. This Section also discusses he data elemeiw Ldent.ised ri
tde The . ra lemer. s provide vitjl information cit the docurrienti included in the
C rr.pen4uum in4 are ;ontzirted it i 4acabase used to compile the Compendium arid 3 -er e
.ridet
FILE STRUCTVRE
The Compendium is structured according to tO major categories that generally reflect t e
various components of a response action selection under CERCLA. Table 3-I lists the current
Compendium categories. The documents are further grouped LittO subcategories that indicate
their more specific nature, when applicable. For example, the remedial investigatxon, feasib tity
study (RI/F5) section of the Compendium is broken down into more specific subcategories to
identity the wide rang. of RL/FS documents available. When the documents apply to multiple
categories, secondary references at. provided in the Compendium index.
Each document has bees assigned a unique four-digit document number. The bound
documents contained in each category ate imaged numerically. When a user wants to access i
document, he or she will find the document filed according so he wiped number. The four-
digit number series auigead to each category are also lined in Table 3.1.
3.2 INDEX ST UCTUP2
- When an a4 sini.vative recerd india reCess so a document conteined in the Compendium.
chat document is ales id.asifled In the Compendium jadne. The laden, contained as the first
document in the Cc: idle. , g,,vids the informedos a.cs7 so identify and locate the
desired docu (For a coy of the current Compendium india, see Appsndiz B.)
he mees — the sear will know the title of she document rather thu the number
assigud, she lade ’ lis a the documum under each category in alphabetical order. As
aiphabetiesi lining of secondary references follows the primary documsata listed under each
category.
(3)
63
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T’ 3LE .3-i
CO IPE’DIL%t CkTEGORIES \D “l’IBER SERIES
C . 1ECORtES “L’IBER SERIES
ind.
Pr,- Rem.disl 0001-0999
R.mo sI Actla. 1000-1999
R. ,dl.I Ii’*stI iiio./ 2000-2999
F uibiIIty Study
Gen.ral 2000-2099
RI Data QuaiityiSics *
W&u. Ageumsitt 2100.2199
Lsnd Ditpos*l Facility TecIutolo y 2:00.2299
Cthsr Tch øI* 1 ii 2300.2399
Groundwater Monitori
Protection 2400-2499
ARA&a t 3000-39 9 9
QualIty 4000-4999
Risk Asassa sat S000-5999
Cost Auly,is 00O-6999
Cauauuity &II&dSaS 7000-1999
10009999
S.Iss *s.ndy/ Dir k.
Dos. . 9000—9999
‘Applicable or RI1O UI sad Appropriate R.qwre ua
(4)
64
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The C3mpenthum index iS maitit3ined on a ntabaae using BASE (U P! is soi: i —-
1t1b1je ontzrns numerous data elements that store the iniormaciort d.1tin uishing inc ;:.: -
i cum flt into the appropni3te ategor!es Th 3C3 3SI 5 :.irrently ,iaincair.ed t EP .
r4 e .: — irers
‘ .iiirttaining ‘ e •r.dex ii a database allows the information to be organized in tifere tt
‘ .a .s F r eumple. should the Region need an rtde that is sorted entirely n at a eI . at r:e ’
title. :hronologically by document date. numerically by t te number usigned each :: .e
etc. EP Headquarters can generate and forward such an index. The data elements of : e
Compendium database. as identified on the index. are included in Appendix 8.
4.0 UPDATU4G THE COMPENDIUM
The Compendium is designed to allow for the periodic addition or newly developed policy
or guidance documents. LTpdases to the Compendium are necessary in the following a.ses: (I)
EPA releases relevant new guidance. policy. reports. etc.; (2) regional staff find additional
documents chat should be included in the Compendium and (3) existing documents are revised or
superseded. EPA Haadquanin will continue to monitor hi information sources used to develop
the initial Compendium for new or revised documents that may qualify for inclusion in the
Compendium.
Guidance documents identified for addition so the Compendium will be reviewed and
relevant information will be entered intO she ealating database. After she database is updated, a
new index will be generated and sent so each Regional Office. This new iadez will replace any
previous indices. Hard copies of the additional documents will be seat to each region for
inclusion in the Compendium. Th. revised laden will indicate the category for each new
document.
4.1 UGIONAL INPUT
Pv SI sd in the mpoase action selection process , as well as Administrative Record
Coord nVlfl, f cvassm that ass frequently included in adainistr*tivS records bus are
not referan ed laths Compendium. In such cases it may bs desirable so inchids the documents
in the Compendium as pan of the updatin$ proceu However, since the Compendium is designed
so be atioually appikabi., only documents u d frequently in different rsgAona will be includid.
Any re$ioa-SPiCiflC document should be maintained in separate re ioial riles and not in the
Compendium.
(5)
65
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a l KEEPI\G THE CO’IPE DIL’ I CLRREST
a dac.r ett s . ei t e C : .‘.it i -c
‘ e t egr t . t ii . ecotd ‘at e c Ho e’er tets e
er n rna’ . ‘e e’ .. ed n the ( . t re o refect hai ges. f r eum Ie. : anges t
Ology. r l v The most :urrertt .ersiofl of these documents w j be added to : e
C mpendium. u appropriate. to that they *iIl be available for the administratP .’e :r::ts;
Although no document included 11% the Compendium wilt ever be replaced or
once an adminhitratlve record india refers tO it. those documents that are superseded
fla$ged and identified on a separate index {superseded index) attached to the Compendium i i -
index. The superseded index wzfl also identify the corretpondan$ revised version ad e4 to e
Compendium to indicate the new document that should be used.
Response action tilictioni frequently rely on technical data generated at Superfund sites
across the country. Such data a often maintained on nattonal databases. Depending on their use
and availability, certain or these databases may ba included in bs Compendium. For example,
the Public Health Risk Evaluation Database (PI4RED) is part of the Compendium. PHRED is
stored on two floppy diskettes that are r.$ulitly updated as additional information becort es
available. Whiftever updated PHREO diskettes are generated, they will be added to the
Compendium. Those diskettes that wets previously included will also remain in the Compendi %
and will b. identified on the superseded i id i x
(6)
66
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(APPENDIX A)
REGIONAL COMPENDIL’N LOCATIONS AND ADMINISTRATIVE RECORD cooRo:NA:cps
Coordinator/PH *
3.. Remedial
Reaion Address 2. Removal
90 Canal Street 1. Brenda Haslett
Boston, MA 02203 (617)573-1759
FTS 833—1759
60 Westvjew Street * 2. Pam Bruno
Lexington, MA 02173 (617)860—4309
II 26 Federal Plaza 1. Jenny Delcimento
New York, NY 10278 (212)264—8676
FTS 264—8676
Woodbridge Avenue * 2. Norman Vogelsar.g
Raritan Depot - Bldg 10 (201)321-6657
Edison, NJ 08837 FTS 340—6657
III 841 Chestnut Street 1. Margaret Leva
Philadelphia, PA 19107 (21.5)597—3037
FTS 597—3037
2. Joan Henry
(215) 597—2711
FTS 597—2711
IV 345 Courtland Street, N.E. 1. Debbie Jourdan
Atlanta, GA 30365 (404)347—2930
FTS 257—2930
2. Same
V 230 South Dearborn Street 1. Jami. Bell
Chicago, IL 60604 FTS 353—7446
2. Jan Pfundheller
FTS 353—7626
VI 1445 Ross Avenue 1. Karen Witten
12th Floor, Suit. 1200 (214)655—6720
Dallas, TX 75270 rrs 255—6720
2. Joann Woods
(214) 655—2270
FTS 255—2270
* The Compendium was initially distributed to rsmedial
Administrative Record Coordinators only. Copies may be
located at this address.
67
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C ord .nator/pfl a
1. Remedial
______ Address 2. Re avaL
71 : 726 M rr.esota Avenue 1. Barry ierer
Kansas City, KS 66101 FTS 276—7052
25 Funston Read * 2. Melen Bennett
Kansas City, KS 66115 (913)236—3331.
FTS 757—3831
VIII 999 18th Street 1. Carols Macy
Suite 500 FTS 330—1.231.
Denver, Co 80202
2. Tins Ardemus
FTS 330—7039
IX 215 Fremont Street i. Torn Mix
San Francisco, CA 94105 FTS 484-1960
Don Briggs
FTS 556—6637
2. Kelly Hadleck
(415) 768—1.3 54
X 1200 Sixth Avenue 1. Lynn Willi.ams
Seattle , WA 98101 (206)442—2121
F l ’S 399—2121
2. Same
* The Compendium was initially distributed to remedial
Administrative Record Coordinators only. Copies may not be
located at this address.
68
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( IPPE DIX a :,
COMPE 4DUJM OF CERCLA
RESPONSE SELECTION
GUIDANCE DOCUMENTS
INDEX
69
-------
T 3LEOFCO’UTE’. ,TS
- Su ca r ____________
Rvo si .:ca .J00- 1 C08
RI FS General :ooo-:oz:
RI. FS RI Data Qualit c,Sits I Waste Mssssment 100-2 119
RI. PS. Land Disposal Facalasy Techno1o y 00-2I2 a
RI, FS - Other Technolo ies 2300-2320 5
R i, FS - Ground-Water Morncorin I Protection 400.2401 7
‘RAPS 3000-3005 S
Quality 4000.4003
Risk AsSessment 5000-5015
Cost Analysis 6000-6001 11
Community Relations 7000.7000 11
£oforc,mus 10004001 12
Selection at PA*I uc io’ Do vmen 9000-9001 U
Dam EI.: !ai o
List of Orpaiationsl Abbsviaüons and Acronyms Identified In th loden
‘The range f or sack number ss ’jij 5 jd tjfie4 r prissoss th numbire aisi nid to those documents
currently in iM Compendium.
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DAT4 £LE%1E IT EFr* ITTOI
T-e . sra eleme its i e Com enthtsm atzba.se. s .2etui(.e on : ie re —: —
e’ow
D4T ELE%lE .T DEFI?4 1TIQN
Doc No Lnique four.digit number assigned to a document
in the Coinpe 4iiu according to category
vol Volume number of the binder in w ch the hard ::py ;(
the document is cofttai*ed.
Title Title of the document. Secondary Reference a idenciiie
following the title when a document relates to more :nan
one category. The document itself is filed under the
number series assigned to its primary category.
Due Th. data the document was published by or released from
he issuing office or entity.
Aethors Author(s) and affiliation(s). Also includes identification of
the EPA Project Officer and issuing office, where
applicable.
Stieva Indicates the status of a document, either draft or final
Pages Total number of printed pages of the document, including
any semchm.am.
Tier Tier I or Tier 2. Tier I documenm are he core documents
of he COmpendium is listed ii the pamphlet titled
- Selected Technical O i dsor , for Superfuad Projecta
compiled by OEP.L Ti., 2 documesm are all other
documeam included in the Compendium.
Aetacbmea Attuchmenm to a document by complete or abbreviated
title.
OSWU/U EPA report or OSWIR Directly. System number,, where
applicable.
83
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1ISTQFORGANIZkTTO L 8R ”t. T!O’ ’S SD .CRONyMS IDENTYFTED r’. r
A enc’. (3r toxic Su s rtces and Dtsease Registry TSDR
Center for Environmental Research (nformation CERI
Contract Laboratory Program CLP
U S. Corps of Engineers COE
Eaposure ‘ uessmsnc Research Division EARD
Environmental Criteria and Assessment Office ECAO
Environmental Monitoring Systems Laboratory EMS!.
Emergency Response Division ERD
Environmental Rseesrch Laboratory ERL
Hazardous Response Support Division MRSD
Hazazdou Site Control Division HSCD
azardous Sits Evaluation Division HSED
Hazardous Wsste En inssrin Rsarch Laboratory HWUI.
Municipal Environmental Research Laboratory MERL.
Office of Environmental E. insurin sad T.chaoloy OEET
Office of Emer sacy sad Remedial Response OERR
Off ic. of Health Effeam AM eat OHEA
Office of Riesseck sad vulspasat ORD
Office of Sold 05W
Office of sad Emergency Rponsi O SWER
office of W Prsgr Wo.:: nt OWPE
Policy Asalysia S f
Waterways Eaperiment Smelos
Witi Management Division
84
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PP!.NDZX F
XOD!LI rRMISXI1’rA.z . coV CZI’L’ER
o Contact)
:Address;
. of contact::
• e.S. Envirortsental ProtectLOfl Agsrtcy a reqi.u.rsd by aw
•staDLish inJStFative records “at or near a facility at .ssue.
adairtistratiVe record consists of irtfor atiort upon which he
Agsrt cy ba s.s its selection of response action for a particular
Superfund sits.
By providing the public with greater access to these records .:
S our tape that they will, be better equipped to cons.rtt
constructively on sits activities and to understand the issues
relating to the selection of thS respons, action at the sit..
We appr.eiats having the (Nas. of local repository] as the
designated ad 1niStratiVe record facility for the sas, of sit.]
Superfund site. The enclosed record files, along with any future
docusants relating tO technical activities at the sits should be
placed in the (sass of local repository] and be available for public
review. The record files should be treated as a now-circulating
rsference it should not be resoved fros your facility.
Also enclosed is a fact sheet to assist you and your staff in
answering questions posed by the public concerning adainistrative
records for selection of response actions at Siap.rfvnd sites.
Please feel free to distribute this guide to the public.
To ensure th. receipt of the adainistrative record file, I would
appreciate your cospletion of the attached Docuaent Transaittal
Acknowledgaeflt fora. Please return this fora in the enclosed self-
addressed, stasped envelope.
Again, I would like to thank you tar your cooperation with the
.T.S. EPA in serving so a Field Repository. It you have sity
questions or co’tts, pleas. contact Sass of EPA cont*Ct3 at
(Phone lie.).
Sincerely,
(Was.)
AdaiflL stX&tiVS R cerd Coordinator
85
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APPENOtX G
IIODEI OOCtJMEWf TPANSMIT’rkL AC 4OWtEoc, 4’r
Prom: R.giona1 Office Address]
To: (Field Repository Addr.ssj
t acknowledge that I have received th. following documents from t e
U.S. EPA Reg3on ____ Office, pertaining to (Site Name] Superfwtd
sLts.
Administrative Record Name -
Administrative Record Doc m.nt Num srs - _______
Signed ___________________________
Date _________________________________
Please return this form to; (Regional Office Address]
36
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APPENDIX If
FACt’ S} ET
4nistrativ1 _ R eeord jii t. epi. R eoøeitpries
The ‘ad rustratLvS record” is the ColleetLon of documents
f: e b s .a for tre selsct1.on of a response actLort at a S.ip.rf.r.
s .:a. Cnder sect n 1.1.3(k) of the Coapreh.na2.v. Env1.rona.neal
espons.. Compensation, and Liability Act, as amended by the
S p*rf . r.d A ertdaents and ?.authcrization Act (CERCLA), EPA is
req’ .rsd to establish an administraeiv. record for every Superftrtd
:espons. action and to mak. a copy of the administrative record
avai]&bL• at or near the site.
The administrative record file must be reasonably available f r
pt b1.i.c review dur .rtg normal business hours. The record fils srtou.
be treated as a nonocirculating reference document. This vU] allow
trte pu lic greater access to the volumes and also ainiaize the r .s1c
of Loss or damage. Individuals may photocopy any documents
c ntai.nsd Lfl the record file, according to the photocopying
procedures at the local repository.
The documents in the administrative record file say becoms
damaged or lost during use. U this occurs, the local repository
manager should contact the EPA Regional Offic. for replacemarts.
Documents may be added to the record file as the site work
progresses. Periodically, EPA may send supplemental volumes and
indexes directly to th . Local repository. Thea. supplements s ou .d
be placed with the initial record tile.
The administrative rscord file will b maintained at the local
repository until further notice. Questions regarding the
maintenance of the record file should be directed to the EPA
Regional Office.
Tha Agency welcomes coents at any tim. on documents contained
in the administrative record file. Pleas. send any such coemertts to
C nam. and address]. The Agency may hold foreal public come.nt
periods at certain stages of response process. Th . public a arged
to ase these formal review periods to submit th.ir cents.
For furthew information on the administrative record file,
contact name pbons rio. of Administrative Record Coordinator].
87
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?LPPENOIX I
MODEL NOTICE OF PUBLIC AVAILABILzry
‘ UNITED STATES ENVIROKMZNTAL. PROTECTION AGENCY
ANNOUNCES THE AVAILABILITY OF THE
ADMINISTRATIVE RECORD
XYZ SITE, (Locality, Stat.]
The U.S. Environmental Protection Agency (EPA) announces the
ava .Lability for public review of files comprising the
administrative record for the selection of the (remedial, removal:
action at the XYZ site, (Locality, State]. EPA seeks to inf era the
public of the availability of the record file at this repository and
to encourage the public to comment on documents as they ar. placed
in the record file.
The administrative record file includes documents which form tb.
basis for th. selection of a (remedial, removal] action at this
sits. Documents nov in the record files include (preliminary
assessment and site investigation reports, validated sampling data,
RI/FS work plan, and the community relation, plan). Other documents
will be added to the record files as site work progress... These
additional documents may include, but are not limited to, the RI/FS
report, other technical reports, additional validated sampling data,
comments and new data submitted by interested persons, and EPA
responses to significant comments.
Th, administrative record file is available for review during
normal business hours at:
(Repository hams] and U.S.ZPA - Region 2
Address and Phone *3 (Address and Phone #3
Additional information is available at the following Locations:
verified aamplinq data Contract Laboratory.
and aectasntatioa (Address and Phone #3
Guids doci snta and EPA -Region S
t ical literature (Address and Phone #3
written co ats on the administrative record should be sent to:
(hems], Office of P ablic Affairs
U.S. SPA - Region 2
(Address and Phone *3
18
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APP mIx .7
C C?ORM A.PPROVA .z P qORAN pI
,: t.
rrs STATES E iv’RONMENTA P 0TEC?tCN AGE’i CY
______ WAS ING?0N. O.C. 20460
.. _c• .•
:‘
,cI *$—t hP .C (l: . . aç i .
51 ! 51 ’ A N L M
Micror .3 .ng t e Ad:lr..stratiy. Record
/
Edward J. Hanlsy, Director ‘ 7
Offic, at :ntarzattan Resources Management
Ass ft. Frost, Jr., Director”
03WU Zntarmation Management Staff
In accordance uttP E’A Records Management Manual Chapter 6,
a:.d 7/13/ 4i, I approve O3VER’s request tar an
acr. .strst .ve record miorographic syst.m for regional
azardou3 waste management programs.
The tessLbility study prepared for OVPE, •nttti.ed
‘Assessment t the Suitability and Casts of Alternatives for
t • AdminLs:attve Record” (June 30, 19e5), satisfactorily
documents and uatitiss the need for converting tie
ada.ntstrattve record to microform, to particular, the
requirement under SAU to asp. tee admtatstratlve record
publicly available at or near each hazardous waste site
mages microform a cost—effective storage medium.
Please inter* each regional hazardous waste progra. of my
approval of WE*’s request and of the need to comply with
the r.maiaia$ provisions at Chapter 6 of the EPA Records
Manual should th. region proceed with tmplueattng an
administrative record sicrographic system.
cc: SrRMOs, Region I — X
SC
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APP IDIX
MODEL C TIPICATI0I(
IN THE (NAI OF COURT]
LNt EO STATES OF AJtERICA,
Pi ai ntiZf,
V.
: AMES OF DEFENDANTS]
Defendants, CIVIL ACTION NO.
numberl
I
V. S
(NAI4ES OF THIRD PARTY
DEFENDANTS]
Third Party Defendants
CERTIFICATION 0? D0CW NTS
Cøfl RI X1tC TXE A K!WT5? AT!Vt RECORD
The United Stat.s Environmental Protection Agency (EPA) hereby
certifies that the attached docua.nta constitute the sdainiatrativ.
record for selection of response actions under the Coaprehene iva
Environmental Response Cc%p.nsation and Liability Act or 1.980, as
amended for the (name of site] sit, in (City or County], (Stats].
By the United Stats. Environmental Protsction Agency:
In vitness v sreof I have subscribed sy
name this ____ day of ________, 3.9_
in reltvl
I’ tvm.d n
90
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APPENDIX t.
PRZAXBE 1 E TO SUBPART I OF CP
S o’,c.-r f 4d.7 rn,sjj ,v coa
3c:,c::on of Rosoons. .4c::en
S o .rt (at he NC? a enw, y iew
(I .:e eg a uirtmencs
:oncarn.rq : e eltaDIajfltint 31 50
iCOr for s. .uien 01 1
r soonae ac ot1. S.cuett 113tk (zJ of
CE. CA .equ u its .uaouagtmant of
an aamuuaaI v. record upos wiuco
he P!UI4.I%1 s i base tie srnsc&ico of
a respotiss action. Thua. today a tue
i uuu he estabuahmeiu of aa
ad uususuv. re o 4 ttat contauta
docwn.nua hat f rm the basis for he
ieiecuon of a CLA response action.
b addition. section t13(k)(2) req wau
he pro iu;auoa 01 re uaaoou
astaoLaahut pmcedunu (or its
?wic1;aaon of nisru,i.d potions a the
d.v iopgn.nt of he a ”.wnove
record.
These reiuionons riiordIn the
L-.a. d t g
precedwu for pubI c psrn psoon.
3ecaiis. one potpie. .1 the
a ”’ vao,s reiard is is faedLtata
IIhUC t0 O&ViSIfl 5 . p... dtVu to,
91
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-. i’ —. — — . — —
:Iosev ‘e atec ‘0 ‘ e •: e,
gob er un public pertic:pa “on Ceneral
comniunuly relation, prov:slon, found in
other parts of the proposed NCP are
addresied elsewhere in this preamble
The followtng Sections discuss the
mater comment, received en the
proposed suDDen I and EPAs responses
C.’ne General comments.
P”Opoj p._ 5 Subpart I det i i how
‘te administrative record :s assenh led,
manluin,d and made iabl to ‘he
public.
Resoonse :o comme,ns Comments on
the administrative record regulations
included the sugge stion hat the
preamble provide a getters! statement
differentiating between the
administrative record end the
information repository.
EPA agrees that while subpart!
includes ample information on the
requtremenig of he administrative
record, a brief clarification would help
to differentiate the record from the
information repository.
The information repository *ttcludes a
diverse group of documents thai relate
to a Superfiutd site and to the Superfu d
progr.m in generaL including documents
on site activities, information about lbs
site location. and background pru -m
and policy guides. EPA requires an
information repository at all remedial
action sites and any sits whir’ a
removal action is Ukely to entend
beyond t days The purpose of the
information repository is to allow open
and convu en public accsu to
documents ezpIiiwig the actions “ king
place at a sue.
The admuusti’auve record diacuned
in this subpa r t. by contrast, is the body
of document, that forms the baits of the
agency’s silctis eta paruculor
respouas it a site. La.. documents
relevant to a response selection that the
lead . gonq robes on. 51 well
relevant comment, and lnt ado, that
th. lead ag cy cosiuides, but may re$sct
in lb. vl mate response I-’eclien
de nn , Thus, the 1. will k J
document, th, lead ig iry
generate. PRP and pu n. and
technical and sitoqu ,. .tisn_,
These do ---qes slly .e.lap
with those mh Aed to the Int.esma,ion
repository. The .dmanlstrutive ra . . ,,.J
inciudus such information as site.
specific data end nn ent, , guidans,
document, and ta IIId .ij rsfssoncse
used in the sailciton of the rosr—i. ,
action. Tb. lal ...ation re, .sltery mgy
include guides tethe5 pfi d p .
bsckpsuad tofa adon, fact sheets
press releases, ma end ethos’
to aid public underetneami
i S r s:orse eaarce,,
ne ni r ’na lion ta , beerng on ne
e ertcuaI response selection a hat site.
One comnienter felt that there was no
mechanism for PRPs to Participate in the
devclopmen of the administrative
record. In response, PRP are given a
chasice to participate in the development
of the administrative record throughout
13 compilation, EPA will make available
information considered in selecting the
response action to PRN and others
through the adminisuativ, record Ale.
Interested persons may peruse the
record tile, submit information to be
included in the administrativ, record
file, or may comment on its contents
during the ensuing public comment
period.
tvonta.’ Secuo XOJC a).
Establishmen, of an a ” '’ trative
record. S.ctiott X $101 .1 . Contents of
the adingugtrativs rsc o 5 4 .
Proposed aid.. Section 113(k)(i) of
CLA states that the “President shall
establish an aini.trauv, record upon
which the President shall base the
selection of a response action.” EPA
used ac ’ t a , language in I 300.1001.) of
the proposed nih, ‘ “l ’be lead e-ncp
shall estahi lab an e ” ‘’•Irative t.&.i d
that contains the docuants that Jbm ,
the bout for lbs s. 1 eetlon of a response
action,” (E ph&sis added.) Section
300.1101.) states that the
administrativ, record file tO, selection
of a resp action typically, bet ass is
all cases, will contain the following
types of document, • ‘.foflowsdbp
en aeums,n of this,
Respon.. ta sian EPA. dt fl
of the phrase “to , lbs bss*s to
* 01001a) drew many The
w’imerns .xpi.sd that the
lead s y would hiv, the disci,tf on
to include to the dmtolstrsd,, m.. J
oily thosedc— -t.thetsuppo,t
EPA’s sus..ily .
These ppwtebe
one mimmdurote.ding of what the
pbnae lamm the basis it’ ‘ “sni soil
was used to the pc: ride. The -
statute de the adminIs ,, . .a i
as the rec . , . . upon which the t’ ã
shall baa, the selection of.
actisn . PA’s tot to defining the
as the file that coma the
dw---ow thet firm the basis hn the
s#acUoa ala . ap .ia action wos
s p to reflect the statater, ‘ - p ,
F, ava pls , en a utsdeu ro . ,..id
will contain the public — a
eubmttad on the pi;::: I
itthel.sdqon..,ro a sthe— --ta .
b .c . . , . . the lend u y is re..,.L d to
der these - ---—‘is and iupe’id to
significant “cmesto to mahings sl
dad.L Thus . these — .- ---- te else
“'C : .i -— a
Se:ec ion Cec:sccr,. EPA .r’e— , , a
regulatory language def:r.int, 5 ‘ne
administrative record flle emoody
general principies of admit gtra:ive .
conceming %bhat,docufnents are
included in an “administrative recoro
for an agency decision, As a result,
contrary to the suggestion of the
commenta the proposed definition ct
the adm nisvstiv , record does rioc ne,,,
that the record will contain only those
document, supporting the selected
response action.
A cummenier asked liii the onnse
“but not in all cases’ be deletcd (root
I 300810 (a). or spicily the cases wnere
documents are ancluded front ne
administrative record. EPA believes its ,
better not to attempt to Li st 5xcju ,d
documents in lie NCP since EPA cannot
possibly anticipate all the type, of
doc meata that wifl be genera led for a
site or for future silas, and which of
these docignen,, should be exciudad
except sa generally described in
I 300.110(b). It bet i1d be noted, for
example, thai although a health
assessment done by ATSDR would
normally be included in lbs
administrative record. it would not be it
the assessment was generated by
ATSOR alter ih, response is selected.
Otbsr commented that CSrtlis
document, should always be ‘ncii ed .n
the admi ,uu,ati,, record. EPA believes
that only a mmli group of dicuntents
will always be generated for every type
of site. since each site is
unique. Othur daciifta t , may or may
not be generated or relevant to the
selection ote psrliaijap reeponse action
at a sits. EPA understands that a
definitive list of ‘squired documents
weald assist parties os trying to assess
the u Mvenss . of the administrative
‘ a... .nL but such a list would ot be
practicaL Dsff .. , sites require
diffarust 1 T::::=it, .
A ‘elated vup of comments asked
that the administrativ, record always
indi cer n decumerna, mcluduig,
spsclflc.Ily. ‘vuflfled sampling data.”
draft and “pfldaci.lai aJ documents,
and teEkftiCeI studies. One comment
staled the, Invalids ad ” umpling data
end draihi must be’ pan of the
admmtstrnev, m o4 in some
silesueme. Verlflsd sampling data. i.e..
data that hove gone throq the quality
assurance and quality control process.
will be — -‘iii to the r, urd when they
have been saud to the selection of a
r—,u srtlos Invalldstad” data. i e.,
data which hes s been found lobe
iuusady pthmst are not used by
EPA to s’auing lb. response action and
siovid thunfo not he included in the
92
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DATA £LEMr.T DEFlNlTTO S
T . ita elemeus f e ComCefl i m 42t1 a3e. is . encif.e e
e ow
D4 T4 ELE%IE?IT OEFI 1TION
Dec 4o Lnsque (our .d4it number pssi$ried to a iccumeM .*:. .:e
in the Compendium &ccordiu$ to cace ory
Volume number of the binder in which the hard :: y f
the document is contained.
Title Titli of h . document. Secosdary Reference is ide nfieø
followin$ the tide when a document relates to more : ai
one category. The document itself is flied under the
number series U.i$n.d to its pngaty cate$ory.
Des. Ti. date he docvmsos was published by or re(eued from
dis uusn office or entity.
Aetben Author(s) sad sffilhaüoi(s). Also includes idsntiflcation of
the EPA Pv ject Officer sad issuzz of (ice, where
applicable.
Status Indicates the status of a document, either draft or final
version.
Pat . . Total number of printed pap. of the documect. ncIudiit$
say asmcb.mesto.
Tier Tier I or Tier 2. Tier I documee are lie core documents
of the Compeadiua so listed in the pamphlet titled
- 1ala tsd Technical G ai’ 1 • , for Superfuad Projects,’
compiled by OEkL Tier 2 documsots us aLl other
documents included in the Compendium.
AS cbmeste Attachments ED $ document by complete or abbreviated
tiUn.
EPA resin or O5WU Dlrec ve Syssm numbers. where
applicable.
83
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J e a ’- S ’J’ e ‘e:::
.gar iess f ei: sigfl:tcance .% “ien
tz’,e cad agency consider, Comments
submitted aft., the decision document
has been signet the “signthcancs” of.
CO!Ttcilftt has s bunng on whether it
will be included in the admuustrsuve
record. as specified in I 300.823(c). [ 0
addition, wiftI, EPA is under no legal
o llganon te place in the record or
C r,3id comments submitted Prior to
the comment period. EPA will generally.
ass matter of policy consider
sigmf cant comments submitted prwr to
the commern period, place them into the
?ecord. and respond to them at an
appropri :e tint.. However, persona who
wis’ to ensure that the commefttg they
submitted prior to the comment period
are included in the record must resubmit
such comments during the comment
period,
Fine! p/ C: Section 300.800(a) ii
promulgated.. proposed.
Name,’ Section 300100(b).
Ath inImtiative record for federal
facilities .
Prepaud ride: Section 300.800(b)
states that the lead agency for. fedami
facility, whether EPA. the US, Cout
Guard, or any other federal agency,
shall compile and maintain an
ednuazenative record for that facility:
When federal agencies other than EPA
are the lead at a fe J facility sits,
they must srasah EPA with copies of the
record ‘ dea . in addition to ot sr
specified documents included in the
record. The preamble to the pau oad
N &.rtJui on of 300.800(b) (53 F
31404) state, that EPA will establish
precaderes for interested parties to
participate in the e m.eetive re .d
development, end that EPA stay finn ish
doc st,nto which the federal sg ’cy Is
required to place to the re 1 ...itL
es cematoa ’ One — —
stated hat EPA should be the ess ’dmes
for a ’out*ve records for fsdare&
facilities, especially where the fsduel
facility is a PRP. to avoid an, esslict of
intomet in question, of Mehiftty a,
litigation, Another - stated that
the reqeiromenta to I 111 (b) of the
proposed rule 1s to
federal aguneise to s od
inatntammp the re 4
“,cstive der 12110 ‘ute fadual
agencies the utArefty to “establish the
s ”lTsUvo is,.a.d for selection of
response acth for federal fadltaee
under th jwis ”qIis . custody ii
conn,L To avoid the potential f
C 1 111 of toi .i by federal .gu.des
who ate PIPe and to charge of cupmth
and maintaining the rea&d . EPA retaIn,
re: y SuO e ’! e. j.,g :e e r: s
by requiring en accour. rtg of wriat is i
he record through a report of the
indexed Conteflts, EPA believe, that
these requiremen represent sufficient
Agency oversight to avoid potential
corJhcts of interest at federal facilities
wnile ensuring that federal lead
agencies remain responsible for
compiling and maintaining their own
administrative record.
EPA is making. miner editorial
change in I 300.800(bJ(1J to reflect that
the federal agency compiles end
maintains an admoustistive record for a
facility, and not at a facility, since
I 300.800(a) alieady provides that the
record will be located at or near that
facility.
Fine/rule: EPA is promulgating the
rule as proposed, except for the
following minor editorial chang, in he
first sentence of 300.800(bl(1): if a
federal agency other than EPA is the
lead agency fore federal facility, the
federal agency shall compile and
maintain the admuu.tiatiy, reco 1 d far
the selection of the response action for
that facility in acoordaace with this
subpart”
Name.’ Section 300800(c).
record for stats-lead
sites,
P paudre/e: Suction 113(k) of
states that the Presidu t “shall
establish an a ” 'ontivo record upon
which the President shall base the
selection of a response action,” Section
301800(c), entitled M ’1 ’a y ,
reco. d for state-lead sites,” requires that
states compile a ’oetiv, reca.4 .
for state-lead sit., in senordance with
the N .
______te msn Sever.1
‘ -.----t.. . bells ,. that the new
administati,. re...d prossdmes place
an mm bwdon a. the state, and
z:- that state Ieqii —te rash as
Op. isewde Acta should be allowed
as a eub te,s :‘il with
subpart I Another -
r edthatstatesb,afl to
nIstati ,e iecu.d Is t ii1 seer
near the Mt. w a sire Is stateead.
Whir, a spasuu Is taken
IA at a sta !i site. EPA to
ultimately ‘b for the 5,6 (110 .
of a i ae acti Therefore, esder
se’ tiasfl3(k), EPA stut establish an
admingatistive iic...d for the .QA
response , en at the site, and stut. at
lL , —sti,1y with &rput I
There may be many differem wa,e of
compiling s’—-” 'oati,, . .o...J. and
Inveleing the public to the
,..e 4!—: aS_c.. z - ‘
m, ’ provioe a l :. 0 1’, 5 1
involvement OPPOrt iiie, at a s ‘e -
response to wnether or not iii ‘es s’_
maintain a complete administra. ,e
record at or near the SItS. EPA ei.ev. 5
that states must have such a rec:r .,
order to meet CERCI ,A section 1
requireme ,
EPA has included a minor editor a
change in I 300 .800(c) to rel’ ect that a
state compiles and maintains an
administi’i nv, record for rather tha,-
• given site.
Paw! rtjle: EPA is promu!gari
I 300.800(c) as proposed, except fur a
minor editorial change in the (list
sentence as follows; ‘ii a state is the
lead agency for a site. the state snail
compile and maintain the adm s at:.e
record for th. selection of the respgr,,e
action for that site in accordance wi n
this subpart”
Name, SectIon. 300.800(d) and
30 0100(e). Applicability.
Propo d ,sr / Section 300.800(d)
state, that the provisions of subpart I
apply to ill remedial actions wnere the
reme&aj investigation began after he
promulgation of these rules. and for all
remova’ s where the action
memorandum is signed after the
promulgation of thes, rules. Settiø
300.800(d) also propoaes that “(‘T;his
subpart applies to all response actions
taken tinder section toe of C CL or
sought secured. or ordered
admmzserenve ly or judicially under
section 100 of C.A.” Section
300.800(e) states that the lead agency
will apply subpart I to all response
actions not included in 3M (d) “to
the extent pracncable,
PMPOOH so cemm.aa One
argued that the applicable
prev’’oes of subpart! should be
a — to require agencies to comply
with the subpart for all sites where ne
ruma4 , m’,culas decision wu made
more than 80 days after propoaaj of the
revised N for comment, Another
stated that 1300.100(e) be
revised to stats that lead agencies must
comply with subpart Ito any future
acti ne they teisn, and that .11 lead
agency actions must comply with
subpart I “to the ust extent
practicable.”
In , egpnnse . EPA will adhere as
closely poesible to subpart lfor sites
where the ne -11al investigation began
before these regulations at,
promulgated. EPA wW not, however.
require that these sites comply with
requirements which, because of the
96
-------
.1 .
;e i..e!c o F r e 4r; e .J e e
Nai .e he ad tinisIacibe ecotd :.
•iuil aviilaole at he belirtrir.* of the
remedial nvesi pnon phase. hue
reçilaiiona are promul;sted wheft a site
is ‘n he middle of he remsd&a
.nvesiiptior procese. and the
adrnjnistrattve record is not yei
a ’. aiab,e. t. cad ency cinnot i his
point cornoly with c tese re ulaiions.
A ditiona.iLy EPA believes that addir
:an age to proposed NCP I 00 Of e
to state mat cad aaenci.s will comply
w;t% tOVI3IOfl5 31 suopi? ? tin mv
f acwi icons sAtar p muI atton at he
new nüe a unnecessary and redundanc
compuancs will be ta 1 ally required, and
ppi&cabiIity to all funit mpona.
actions ii implicit us the rule. Lakawise.
microns .1 the word “ aa before
the phrase ‘extent p,scocabW ’ us
wuitcoisety sinco it would vve
addatas ai utphasia but iuosild ent
subuanuvely chese lbs ruqiw ent or
the mueasuts of the nd&
On. comment .sd with WA ’s
uuerpretauon that subpart I appilen to
a l l response setacen ‘eav$bt. secured or
ordered ‘ •“uutwuly or judamally.”
bitt others diused. 3ai.rai sia&sd that
the tsrsi “ iadiaaAly should be dulotad
from I 3co. (4) because ibay argus
that response actions ordered judicially
would reouve dasevs adludicabsa,
instead at ‘ ‘ ontlvs rs... d review.
CIA section 1U(J]L13 staten Ia any
judicial action itider this Act. p .i cuil
review of any tuuu concsruitn$ the
adequacy of any response action token
or ordered by the President ahafl be
limited to lbs adminasastive record. ”
Commontsss contend that this unction
does not apply to in;u.cdve actIons
undet section lOS b vss
thele an not actions “ tabes or oud.ed
by he President.” To the conossy. lb.
s.lsmion ala response action isa
“respona.actlosek ’ • byths
President.” Accoudlaiy. section fl3 1j(t)
,quuu that ludidal review of lb.
response action selected by - j
is “limatid to the adenalsOstiss . __ •
Further. section 113U3(23 V ’,. I ’ that,
“In any Jtsth ’ action ‘
diaptav”— .wbslh for ‘ uris usii .
s io — ’ of an - igwi eider
or ii7 of rse costs
damag party oblictinS to “the
Presidents dstlu’o i i 1i
response srdss ” S I a tS T T:tst “on
the . sOsdvS reeast that the
densløs was sgbltesiy or enp& = or
otherwise set In accoida with law.
A , isv.4 unveil c---” '
ob,econ$ to PA’. det_Ilnaties that
udtmal review of an endasgeesent
— i.’i . e r ‘- , .. e.. •s .
is a matter f i: .sct t: ‘I
cunstiti.iionai ! w a 1ndmng of mca eat
aria ,i bsianual endangerroent .3 flOL an
issue concsritun the adequacy at he
resDonui action.’ as staled in CERCLi
sectIon 113W. and therefore must
receive as nova review by a court. A
second comment requastsd that A
stats in the retulanen that review of
EPA’s eapenthturu in lbe
implementatIon ala remedy sd• nova
An aasesuneni of sndan eroten, at a
we is a factor hs tly relevant to the
selection of. response action. and is ma
fact part of the remedial investigation
(RB process central to the decision to
select a response action. Therefore. he
determination of endangerment (which
will generally be mntiuded in the
decision documsnsl will be included a
the admuamsOstive record for selection
ala response action and should be
reviewed as part of that m ust (PA
notes that the teon “endangerment
anesemsot” document has been
- av &r.dud by he teim “tisk
anserseor document, and while
assessments of endangerment at a sits
an still conducted during the R I. it to the
“iiab assessment” d ant that
b .mee pan of the rs mt ) In response
to the comment that Agency
eapesditeres on a response action
should d i nova review. PA
noses that this lies. was not relied In
he ut; N . and Is therefore not
addis.ud In lb. Ilsel role.
lTiieIre!w PA Is puessipothig the
ituli U pr :
f!: W’ Laon esalth
id.maamstLvs recaid 51..
P?ç .iJ avl. Section 113(k)( Ij of
Q.A stases that “th
shall be ava ” ’ to lbs r ” as
su’ seer lbs fasllty at _ — The
P”- ’ ala. sap plans depliestea of
the w ’ tnIvs naiad as any ouher
Iss ” Section - of
— N — lee wipdoen
for LiM...ades whish seed an be
ph .d tories, lbs -“ iy
litorstuse. drnm.se to the’ mmldential
pistils of 51., . d as q
___ - ‘ toting less this *
die 1 ,.., — --- U
a--—on umiu.g
smean of hf_idea whob seat be
at or semi she Its. but many
elated that 4_ian
ldeatie l “ “ whiob
anpirtdthescsu s h stddbe l eceis4
at or sear she site aM agency
ac: , ,e ;usOi
are con’rar
Comment si
aamm nisti’at
paces, at a
neai ie sit
statutory re
recoru only
Slits.’ On,
acknowled;
keep the so
Superfund
( :10mM Ieee
requested u
ralialatoryl
records can
other t r
and have ut
paper recur
Rsqssrut
document.s
both usnec
‘I,, coedy.
often kept a
spac, is us
for Las,e.cc
tbsdimaui
which is he
addition. ii
‘ echnund lit
is,
additional.
Superfied €
- ---‘ - vie.
Sleatu’es
s(the.unp
f__i
file.
I L, -.
— thou
i . . .w i d i
but not aet
seer Nb
conldusdul. a
Isthv I wW
be
erdertobavet
s .i.i4ia hei’
requst mm
11A .
be “avadal
lb
—s
wmI for
—a
I nfusmads
95
-------
. :e i . .eT i—: :r e r—a n s
e?Si lo tie resoonie ieIec ton
Cec isiOn.
The confidemial portion of the lie
need not be located t or near the inc.
mo will not be available upon request
either at the sits or at the carnrsl
since the information is t Ot
ivalabie (or public review.
EPA .et eves that requiring that ins
record oe located in two places is
rec.s.ary to en re both adequate
puoc access to the record flies and
oetler lead.agency control over the
record documents. The statutory
r.auirement in CERCL.A secnon
113(kMtl s:atss that the President may
also place duplicates of he
adntirnsw.tivs recoro at any other
Location. This section clearly provides
authority to maintain a second
adnunzst?atlve record at a central
locatiun. Section 300.505 of the proposed
!sCP (33 F 31515) reflect. EPA.
dec siun to make this statutory option a
regulatory requusmsnt A centrally
Licved record may offer easier access
to interested parues located fat from the
response sits.
EPA açtes with the commiater that
housing the centrally located copy of the
record at Indian tribal headquarters may
be appropriate when a Supedund site is
located at or near an Indian reservanon.
In the INS amendments to C C.A.
Indian tribes are accorded status
eqwvaiant to state,, and can be
designated lead ages as icr suspense
actions, In which case they would alas
be requored to compile and maintain the
ad mi.uulwe record at in aeai the site.
Finally, as EPA stated in the pmamble
to the proposed N . maintaining the
adnunz. xU,e reused on microfiche Is
already recognised u a legnlly valid
and e1fectg , proctiem “EPA may make
the a mi trative record av.fl hI, to
the public In microform. EPA may
microfmm-Gopy do umto that fir, the
basis for the selectir, sf
response action in the rus l of
business” (33 FR 514111 EPA aeis that
this should be spedSed in the rule and
has added I 300J0I(4.__. . LQy,
providing that the isnI q may
make the reused avulishle in
Final rider Section ‘ lI in modified
as followsi
1. Section 300 .10 5 (b) Is Xj to the
rule as foUawsi “Wbm dc”----”te are
placed in the central lecati s bet nit in
the file located at c i near the site. irsh
decuments shall be added to the file
located at or neat t b. sUe upon request
except for documents included in
paragraph (aM4j of this section.”
;
na,.e ‘he sominstrative record file
availabl, to the public in microf rttt,’—
3. The section has been remiaib,p,d
sccordinily.
V erne: Sections 300.e1o(akd),
Documents net included in the
administrative record file.
Proposed rule. Seciie 300 810(b)
discusses which docwnent. n.y be
excluded froin the edminusustive eco,t
Section (c) discusses privileged
information that is not included in the
administrativ, record. $ectao 3 00.8l0(d)
discusses confidential information that
us placed in the coflfid,titial portion of
the adinuususuve record.
Response to commes,t, One
comments, argued that I 300510 should
specifically include an exempuon for
‘classified documents related to natioa
security. While the N currently does
not address the potential conflict
between national secuuuy concerns and
the requirement to establish a publIcly
accessible adium .tratl,e record, it Is
not clear that such an exemption could
be adequately specifIed by nile or that
in exemption would appropriately
resolve this conflIct. Section 1210)
provides a national security waiver by
Presidential order of say moquusmentj
which can be Invoked
in certain wcumstan s, Uadm this
provision. protection of national security
intelests requires cass .by.caas review
undm sectIon 121 (J) sad sot a blanket
exemption In the N . Nothing In the
N limits lbs availablifty of this
Another Is d.4 by EPA
stated that the ies s if pthilqsd
sad ofldendal doi:umiets in the
rsc. .,ils Is . 1 ufr , beosum It u ”
access to da ’—is that may be mittosi
to th . selection of. ronady . EPA has
presided far a c dentiaI pstian of
the a tsdvs iu ,. ,..J whu
t 1 to conta
nods mou of ps.1es that have
dsv t r pa’—ted -up
t- —-b,ss be —od ass
IUPw.I 5. 5SjSCti00 Sltin atve c i i be
kept -°dontiaL To a tsina fl
b.it .. .on the seed for’
___ sad the pubis’s ri t if
ruvla% if lbs re. .nL the lead y
t summeriss redact a : —nt
cenPa .Ii confidential information to
make availabl, to the giwsst
pe b ’ alicaL ‘oal thfmmation
action in the noncoaldsntial puti if
the record .
A final “ t pa; that en
to lb. prtvtlegsd
should be included in lb.
.2 : r. . i ::-‘ :—
believing tfl4i an :nOex ... et
interested parties know ri ;e’le•3 e—
what docuncriti are inc uoed n
record without compromising .
confiden,iaj nature of Inc .riforrna’ on
contained in those documc ts.
Finally. EPA is addings sentence
I 300 8t0(aJ ( 5) to clanfy that the rt:
can include a referenc, to a Voup cf
documents, if documents are
customarily grouped. This will 5i O: ‘..
EPA s task without compromising ne
integrity of tile record.
Final rule. 1. EPA is
II 300.510(b). (c i and Ed)., Proposed
with a minor editorial change to c.arty
the first sentence of 300.810(d).
2. The following Language i added ‘a
I 300.810(a)(ep tO provide (or listing
grouped documents in the
administrative record file indez ‘It
documents at, customaniy grouped
together, as with sampling data chain of
custody documents, they may be listed
as a group in the index to the
a srn.trsbv. record flu.”
Namer Section 300.813. Adm ,njs 1 1 ye
re .4 file for a remedial action,
Pl pa..d rule: The term
“$dmuustrstiye record file’ us used
throughout the proposed NCP Section
3 00.113(a) proposes that the
•dawustrsti,e record file be toad.
avsilabl. for public inspection it the
beginning of the remedial investigation
pIties.
Respons, to comment,.’ EPA received
several nts ob ecting to the
cononpt of en administrative record rae.
They oblectid bscaus. there us no
statutory authority for establishing.
Ills. and becaus, they wire concerned
that the lead agency could edit ii. file.
specifically by deleting public sad PRP
c”mmssls and info .Uoi that do net
. uppn the response action ultimately
by EPA, and that these
- —to and information would not
eIe a part of the final adniunisvativs
The statute requires the President to
establisha. sdmuuinitiv, record_,
Uadci subpart I of the N , the
adininistiative zuc . ,.4 file I. lb.
“ 'r — for compglin and will
corns_Is. lbs a lnlstrative record
required by section 113(k). One reason
EPA adopted the eo g.,t of an
J file is that EPA
Mtthat ltssaybsc ,nfla i .mgo,
mIs 1lng to refer to an ongoing
£. _ flg eldecv.m”ta as an
ncunr until the
is cemplate. Until the
cupu..ss triton has been selected, there
96
-------
,—. e s::::
. : c 5. ,fl 5 •0 a oi’ !i .. .e
:?esIton aI e eccrc S cc: ete at
any :e prior to e f ai secon
d.c: ion. rnile set of doc..ner.t , I
refe e to as ‘he ad ni istrative record
.e itfl5I hitI e acrn:n: SIrltlve
re or:. -
However ‘.s e, ot nean. as the
camr.e,vi apoear s..qest. at e
‘ead aqency ay sait tie
ec. Irsc alive record e . a Tta rer
ttiat re—eves cotr .encs Sec-- cat
data sir :.y :eca se ‘hey are not
suo;oruve of h, Fnai seiec ion
dec:sion. My contmenti and technical
information placed in the record file for
a proposed response action and relevant
to ne seiecuan of that response action.
wnether ii support of. or in opposition
to. the selected response action. become
part of the admuus auve record for the
final response selection decision. Stack
materials will remain an the
adagiasirsuve record file, and will
become past of the final a rn,%,sttvs
record. However. EPA believes that as a
matter of law docomenia that are
erroneously placed in the a 1!s auve
record lie (e.g.. documents that have no
relevanc. to th. response selection or
that pertain to en euttisly different sits)
would not necessarily become pan of
the final a ”smottvo rsiai,’d .
EPA received additional comments
stating that the admulasmodve record
file should be available before the
b.guinuri* of the remedial Investigation
phase. Thus comments suUeelsd that
the lie be avadablet When a sate is
entered into the data beset
when the } S score is cilmalatedi when
proposed foe inclusion on the NPLI aftas
the preli’ ’y assessment rep&t and
alter the remedial site investigation.
EPA belleves hat the point at wblá a
site is entered into the CJ3 data
bas.ts too early to put any information
which would ho relevant to $ . slacilriu
of a response action into a rs..iied ale
because at this point this. he. been no
site evaluation and th........ .
factual information abo Mta open
whack to base a respeuss
1ntsr sted parties can ak bd any
IormadononaeitS J1b.
included at the point of l awing
and plaiie—’t on the N . in the NPL
decket. which Is ‘ y available. the
preli y m: ’ aid remedial
investigation stags. of a napes. , are
premanue foe siahiag the
recurd aveslablet at these penn then in
little information relevant to , ,a ue
selection on whack to se—-— ’ ,
r vtsw. Once the RI/PS work plea Is
approved. aid the RI/PS study bemas..—
including sick activltise as pto
a a *‘: •
ar.o 4fl ,,3$ 4. :er a. :ve,.. —es s a
cor.erent OdY 01 sUe-spec:fic
.niortna l.ofl waLA ?eievance to
response seieC t0fl oori wflicfi :0
comment. EPA eiIeves that ne
eçnnang of the RI. PS pnase is the eant
in :ne process when it ‘ti1 e, sense •o
start a puoiacty availabie recorn of
( rmacioR reievant to tie response
seiect lon.
One comment staggested that
nerested persons wrnald have no
cnance to comment n he formation of
the RI/PS work plan. The cornmern
suggested that the record fil, should be
available befor, he P4/PS work plan is
approved. e.g.. with a draft work plan or
statement of work. EPA disagrees.
Approved work plan, us often
amended. An intereited person may
comment an the scope or formation of
the work plan. and such comments can
be taken into account by the lead
agency and incorporated into a final or
amended work plan. 5u h comments
must be considered if submitted during
the comment period on the proposed
action.
Fi,ial tv/er EPA is promulgating
300. 513(a) as prcL i -
1 Yasser Section 300.SIL Adms ative
rn.urd SI. for a remedial action. Section
a) . A ’ truuve record file for
a removal action.
Ptvpc:i tv/er Subpart I requires that
the a ” tsative in....nd for a remedial
action be available for public review
when the remedial Investigation bs as.
Thereafter. relevant documents iii
placed In the record as generated or
neisived. The pic c regulations ii. .
require that the lead ig y publiak a
nswegapoe notice annr i the
availability of the is...id Rise. and a
: z notice aense g that the
ph. has bees lust . A public
- ‘ peeled of at least 30 day, Is
. . . zsd as the plea. Sendan
XS a) n” , the stops for the
of the nu..sid and public
flU i s-tlme-ctticnl removal
EPA solloitad as a
to require quarterly or suem ’esmmL
asilicadan of remod availability end
the iMtia s of public t In di.
? & __
Reopen. to Seen
- : eI that the see of
the Pidet.I Rssen to a .en the
a,1idhty of the stOve issued
Is too cosdy ii of little or a. beseRt.
ci mm
claMcatiss in how and when the lead
ageq should to cmm
Another stated that lead age oe
should be eacourogsd-thov* not
C— •a _ fla.— — a — —
:e’:-’ . 5 rta. ::—— -
EPA cnose “tot o e .:s a -
availability f he aar. ’.s •3• •
in he Federal Reçst.r ti ‘- s
‘Jetmaitin; oecatase ;t s it.. .:.e:
wnet’ter tie ertefiis of :n.s ac
notice e twetgn its costs EPA .ai
decide in he I e to req i:s ‘ .s
additaonaa notice lit dete :nes ‘a’
s acn notice would :rnprove :a’ -
EPA agrees witit Co tntet:ers ‘ a’
cianfication is nesoed as ‘o wne-. -.
sad agency snouad resoonc .0
comnsnts. We also agree ‘hat ‘he eac
agency mould be encouzageo ‘0 es::-
to comments suanutted eiore . e
comment period. EPA tenera v .v :!
consider any timely cormmer.ts
contauwig siçWtcant in crn ’ tat::r e e-
it they are not received d&r.ng ne
formal comment period. anc enc . 3ue,
odier lead agencies to do so. EPA .v
strive to respond to commen ts .t
receives as early as possabie. ane
encoorage other lead agenc es o •, w
suit. However, any lead agency is
required to consider and respond to r y
those comments submitted during a
formal mme i period. Any oUter
co ts art considered at the leaa
agency’s dlsmouon. EPA has revisec he
language of thus sections to reflect ‘tie
policy on-consideration of public
co . - ts submitted prior to punaic
comment penode.
Oss “——en, recommended that the
regulations should provide how on; .te
admunassstive record must be avaaiaoie.
and si ested EPA coordinate efforts
with the National Aichives aoout
riMming the record as a historical
i , ..rd, Another felt that materials were
not alway, placed into the record in a
tily and that the record was
not always available to the working
public during evenings and weekends or
p -d by a copying macban..
S mtluiy. en — t felt hai
±T ’ should be placed an the
nosed whes they are generated or in a
pi.susbsd timefrias of two weeka.
Anoth. asked that hue copies of key
dei’inN be included in the record.
PA bellevee that the length of time a
must be available at or asu the
sate will be dapemle ” on site .ep.caflc
ouch as ongoing activity.
p--ding litigolos and community
lai. ,..L PA also believes hat
dimedo. sometimes encountered by
the wuiblig ruqauart resolution on
a M*by-sto basis aid do net sent a
thange is the propoeed N language.
Spomal puseilless may have to be made
by the es uds coordinator, with the aid
of other site team msmbers. including
97
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s. e aqe• e e i..r! . at :r
•. o c .OCI!iOfl chosen is cocveoeoi o
public and that copy ing facthue. are
roads available. Using public Labranes to
house the record should promote benar
availabtialy of the record dunag non.
- .working hours and oa wesk, ds. In
respOQU 10 mandating dudbn, lag
lead agirtciSs to place docoment. into
the adm&zustzaiive rec ma. Agency
gu danca already direct, record
compilers to place documents izito the
record as soon as they are received.
Agency peLicy add uoneliy prsscnoes a
suggested timefram. for placing
dacumettil in the record file. EPA
believes thai mandatory dsadhp— in
the N would do lit, to nmsase th.
rats at W Inch records are already
compiled. The decision re place be.
copies ol key documents in the record at
or near the site will be a sue-specific
decision based on the level oE
corociwuty interusi in these docwoente.
Those who wish to make copies oik.y
dociaienta or any document coatained
in the adaanss adve record flu shield
alrsady hay. scones to copying
facilities.
EPA reonivud a ‘ -‘ust seques ng
that it publish a point noses of
avetiabilhty of the aAans v. , i.ii ..4
with a noses of availabilIty if Te esl
Asaistaus G unta. A tbu
stated that the removal slwsvsluaflos
and en ne.nng evaluation/cost
nanlyma (a/CA) must be induded to
the . ....J fore aes . . itc.J
removal acti -
Pub”’t*ng nodos if the availability if
the rs wd to tandem with
announesmonta of availability if
Terh’ii4 I Assistance Create (TAG.) I
a good ides wtuse TAGS are
fat a removal codes. The TAGs.
howevir. are geusally desigued to
5u 1iy mi ci to,olveswtt In — ‘ — —
issues for sites vsdu othg r— _ L.
actions. The oss .yuar. 12 uilH .
limitations on removals end the
number of altaisatlvus os1 mois’.ud
make fw’the, eupetem na - — ‘
adviuor Less beneficial t I — % be
for a bong.tarri remedial As r
pla the removal sits s —
EE/CA In the adamhutesdes reseed.
EPA qrw that puially Nub
docianente wield be prn of da
admini. a ,s , cerd for the removal
action.
Finally. EPA 1 making. things
to th. Ianguags of I aJ(4). EPA Is
subsutodag the teem Ndel.i
documair In place of uSes
memor”du to allow far situations
white the agency. decision document
fl —
Fn / ri,1a. ’ 1. The second Sentences of
U 300.513(bj. 300 5Z aH2p and
300.aZOfbJ(2) are revise4 to refl , the
new language on mspondaq is
comments as folhowsi Th . lead agency
is encouraged tO 000side, slid Nipind.
as spprapnate. to significarn
that well submitted pvior to the public
comment period.”
2. In I 300.a (al(4), the term “decision
document” is substatutad for “action
memorandum.”
3. Tb. remainder of I 3CO.a (s) is
promulgated U proposed.
Nam&’ Section 300 .a*b).
Mcm ...iet,,. record file for a removal
acuon—nae-ci’mcal end emergency.
Prvpesea”vler $s n 300 . 1 20 (b)
outline, siege for public participation
end adminisnedve record availability
for tim.-aitioni and omergescy removal
responses (33 PR 5131S 1 ’-—-eaie
included in the adminisustiva record
file shall be mad. available for publis
inapsotiss so later than lOde ,, after
initiation of on-site rumc .l acdelty, at
which point notiflation of the
availability of the rs..... must be
publiahed. The Lead - — y t . es
5 ,rv,fiito. will PIUVId. a public
c t period sleet lees than 30 days
on the selection cube ruapasse
Response to onmatea Sa,1
C1)ffiffihnte suUestad that public
- t reqairemuse uad
I 300.120(b) _- and
bwdens , especially the zequlr s
to p kllub a notics of the av°’Wty if
the record. On. - ‘ argued that
reqiarlag public nsdlcstion .1 beth
record availability and ifs sits’s
Inclusion is the NP !. wee - ,
aadd n g l l e s S Aas - -
statod that the ru l. ts far public
adflesdos and g ibbs - —t an
appungelaw all 1Icel zevel
: TLaMnr 1 thettho
sdamhstosd,s ismad be , ,.fl*hl 0
reviser — fwthess
remigal “ that do ss
= aid —t A related
el aIMthattheisevL— top’ bba
notice if availability if
a stisSus . .a...d feral s tScaI
removal erdesu be ‘ ted Is favor
of msldng the record av”4’ but
an adtl’
pa*st since mo 5 1Scsl remseel
actius ass c ”p’ted b rsa public
ut period could be L Othus
asked that the public — ‘ period
tie “ “taq . er at least
datauy far remeval asdetties not
already ‘ uaplusd at the issoid
is made available. Aa.
that the record become
ci ,n ., ’e ic’. •
becauae the c%&rrsni SO•o.y ?enod
Pteve t, the coMid erstion of any pre.
work comments. A second coament
suppoz’.ed he lOday period. Finally, a
commentar argued that it made little
sense to make the record availabl, alter
iO days for an emergency response
because the on-scene coordinator (OSC)
report containing most of he response
u%fQnnauon isn t required to be
completed until one year following the
Neponse action.
In general, the public Part Icipation
requirements under I
designed to preserve both the flex
and discretion required by the lead
agency in tame-critica l removal action
situations as well u EPA’, coami a
to .ncowa ng public paiucapauon and
to keeping an affected mawwy well.
in armed. WA believe hi
and comment period, required an
I 3oo.ax(b provide for both Agency
fl”bdjty and meaningful public
inv .1v. ”i The rugitla tory languege
stating that “Tb. had agency snail. as
app, ,. avs. provide a public comment
period of not less than 3odaya ’
provIdes the lead agency needed
flazsbilny whon the emergency utiute of
ma’— ”w makes balding a
comment pusd ith. hi
WhhleEPAbslieyes that it is
necessary to aemo the availability
of the a —” •vatg,, record for na .
clUed and emergency removai actions
as well as nco.time-cltical actian. EPA
believes that rsqummg establishmens of
the adminismotive record and publiahing
a notional ite av l.hIqy 30 days after
inidating a removal ‘ses in all casee.
mamadof ” no latth aaI0da y , aj
Initiating a removal action. ” as
piepc would be somewhat
pusases. It be. bus EPA’. anperismo
that It o1 takes 12 day, to stabile. a
site (La.. those sodvides that help to
retard or . t the sprsad of a
hasasdova substance r ” 1 ease and help to
4 .Iu an I 1Iate thisat). EPA
believes that the ldlag task of
. meigq napes.. ‘ —ems during this
alticol period mast be the underaking
if n y etabilisation. rather than
adasesiestive dutim. r mp1ling and
edvurdaing the vs&..i before a sue has
lw’ 1 . —. s’ b4lItsd would divest
response tasms from
devoting thod fall a dos to a
EPA bd.,ua .bat suth
amhnlaladvs precodam are better left
for after site etihilicutian.
Public sodos rsquli ti for
aesouncing th. aev 1hti iy of the
i’ 11 ” ”Oative isoord and for a site’s
i..1.,m en the I . ass not duplicative.
98
-------
-e—’ -a: ;..rs ¾— L i iC :, .
,3 jiws i u i ;iace at Sites on
%PL ereiore. he notice req .remen s
are obviou,iy not duplicative for eee
re D Vat ICt iO n). For remedial sites hat
are on the NPL :he administrative
,record need not be established for some
‘.r.e .( er siing on the ‘4PL. so
; oi.sh:r.q i flOtice of !e availabi iiy of
recora wouid a. essential to mus
ne affec ,d puoti coqn.zant of site
;::qress and their opportunity for
resiew of OCuttents iflC .iC 5G :21
-ecord.
LastLy he procedures specified in
1300 8 :0(b) are appucable to an
emergency removal that starts and
fl ushes within 00 days. However. as
provided in * 300.aZO(b)(2). a comment
period :s held only where the lead
agency deems it appropriate. But
because the adnt inlsast ive record in an
avenue for public information as well as
for public comment. WA also believes
that even it he action is completed
before the record file is made available.
it is stiU appropriate to oak, the record
available to the public. There is also no
irtherent contradiction in the OSC report
being available one year alter
completion of the response ac on while
the sdmuustihauv. record becomes
available 00 days alter aitlanos of on.
site activities. Since the OSC zup.n is a
summary of hi site events and is not a
document which is considered In the
selection of response action. it Is not
generally inchadad in the ed ttl,y v,
record.
Final rvle WA is promulgating
* 3 0 V’(b ) u proposed, except that
1. The second sentence of
I 300. b)(2) is revised so responding
to public comments as described above.
2. Section X04 bI(3) is revised
consistent with I XO.$ aK4k the te,
action memonndum Is changed to
“decision doetimrt .
Vamcr Section P0* I . Record
requuomeots after decision t t Is
5’—
Proposed tv/ c r SectIon
describes situations whom i s
maybeaddedeothes
recordalterth.de.’ t -I.
sigeetDocumsatomqbsiff is.
record in the folk L _ r-
When the darumt adthss a portion
of the decilLon 1 blá thO
document does not adds, ii iuaui.i
f rwbsnths. _ ’
chang. and an e laasdss of
sigeificant dilferuscas or as — —
decision docuassi is wb the
agency holds additional public — —t
peiteds aftai the ds Is * and
wbsa the . cy receives
-e •.—
OuiO ot have en 5uom,tts . r rg
. i uOiiC comment penea which
suostantiatly support the need o
sienificanity alter ne response ac :on
33 FR SiSiet. In addition. subpart £ of
the proposed NCP discusses ROD
amendments and Explanations of
S’gn ficant Differences. Explanations of
S .qnificant Differences may be used for
s:gciificant changes which do not
fwidarttentally change the remedy. and
do not require public comment. ROD
amendments must be used for
fundamental changes, and require a
public comment period.
Respons, to commengs Otto
cominentsr asked that subpart I reflect
the factors consistently applied by
courts wbsn determining whether the
record should be supplemented.
including such criteria as Agency
reliance on factors not included in the
record. an incomplete record. and strong
evidence that WA engaged in improper
bensvtor or acted in bad faith. A related
comment stated that since general
principles of a ” trsUve law apply to
administrative record restrictions and
supplementing the record , language
limiting supplementing the record should
be deleted from the N . WA believes
that includIng spemftc tenets of
admuustratzve law governing
supplementing of the record in the N
itself is unnecessary. These tenets apply
to record review of response actions
whet orornot they are ind”dd Ia the
N . The requirements of I 0*
do not supplant pnadples on
supplemsnuni records.
Another ommsrn roeomme did that
WA permit the rsi..id to be
supplemented with any liens oonla.tid
by a PRP. while casting is ob)s ,e
thud party the ability to acespe or re$ct
isc.,rd mpplsmests , WA already
requires that any t - 1i ounuaning
— submitted by MP
wlthlsthepub llg .‘psnedb.
to the rawd . All sigalicest
ev nbmuttsdaftsrths j ’
der i Is p”ts Is s1ready
Is ns.at so h o p It
meets the rsquimmmte ofi 10* m(c)
Is sot i, ,j1* elaawh _ mu to th muat
could net ha ,. be. Thhd dslop
thepubili od.andsupports
the used to s,1*e.dy slier the
199L.JI PA believes es
cifteda are rseessbls and do sot
requIse the use of
erbitsater.
On. ens stated hat all P*P
e. ---- b.pls.d t oths
record In oidd to a partys don.
In . rIght to be beast PA dlsaçe.
that all MP s- os to th, lead
e :r. a e :a: -
r’- ‘e racess ro
r...ss .nc udir.q n ‘o cc :f
ava. oility of the proooi.o ;.an i: - e
lcminist,3tive recorn far ‘ev;ew
a%ailaoi!ity of all doc .rne—:s .ncer . —
the response seiection dec:sion for
review throughout he ec;sion’riaii. -;
process, the opportunity to comrne ,
‘ e ;roposed plan and au docuamsn ,
the administrative recorn ‘ i c. the
requirement that the nd agency
consider end respond to all sign! cart
PRP comments raised thirir4 te
comment period, the nor ce of s:qr..rcart
changes to the response seiec:ion. a
the opportunity to submit, and
requirement that the cad agency
consider, any new siqni cant
information that may substantiaiiy
support the need to significantly ai er
the response selection even after the
selection decision—is suff!c:ent to
satisfy due process. Moreover. h,
opportunity provided for PRP ann
involvement in response selection
exceeds Its minimum public
parecipatlon requirement, set forth v
the stange. Placing a reasonante limit c
the length of time in which comments
muss be submitted. and providing for
case’bpcas. acceptance of late -
coM te through I 300. 52 5(c). does no
iribings upon procedural ngnts of PRPi
One enter asked that the
permissive “may” in * 300. 5 2 5(e) be
changed so there Is no lead.agency
dhscienon over whether to add to he
administi*tiv. record docwnents
submitted alte, the remedy selection.
and stated that additional public
comment periods as outlined in
I 300. (b) should not be only at WA s
option. A related n— t stated that
the multiple qualifiers in I 3 ’ 5 2 5(c).
including th. phrases “substannally
ds used” and “sigaificendy
alter the t—.p.acpe action” (53 F l SISIe).
w PA a rIy broad dismetionary
j as, what documents may be
- to rens.d , The mritsr
ss,usto deleting the ward
“uubstastially, as well as stating that
all ——— even those disregarded by
WA , dbs ‘ “+d In the record
(be the purpos. of tuilidal revIew. WA
1 ees that the weed “may in either
I XS a) or * 30S (b) is too
peemisshve. Section XQ. (b) of the
pi cal was simply Intended to clarify
Issd agomys p M authority to
held additisnal peblir mmmset periods.
Is addition to those required under
su n I he *00 e ”— snts.
wigievur th. lied agomy decides it
be appiepelats, Because these
eddl” 'sal - t- ”— s period, are toi
.2
99
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-.f.—..s ..t d 5g e S.1 / es
-e eao agency $ 3i3C J0n Wi eipeci
!o ness aaOItionai puDliC ulvelvement
opportwli lles. Simii.riy. leadagency
discretion to odd to the administrative
record document. submitted after a
decision document has been s .d
provide. the lead .gency th. option to
go beyond the minimumi qwr en a
for public parIicipacio outhoed in be
statute In response to requesta to d.let.
the qualiI .r, in 3 300.8231cI. lu,
language is uilonLiona ly designed to
define careiu’lv Ifl arvugtstancn a
whi:zi EM mu’i consicer cement,
submitted afler the upon.. action has
been selectea. This standard IC J2S I
CERCLAs vv,n4a1 1 to proceed
e pedittou’ lu implement selected
response ICTWn& but a.i.o fecognilis
that there will be cenain Mtances in
which sigisthcaat new information
walTanti reconsideration of lbs selected
response action. Section 300823(c) is
intended to provtd. a russenable limit
on what comments EPA muss review or
consider alter a decision has bees made.
Several cemmantun requested that
PR?. not identified until after the des.
of the public comment ponod should be
allowed an opporomity to on
the record w ith In 50 days of WA.
noulkation of potential llabthty. WA
k signiflesat eforto to m,s&,. PR?.
as esily in the procom as
When PR?. at, . dIII ,d late in lb.
process, they may provide WA wish
co ts at that tima. WA will
consid. or - s . which am siabmftted
alter the dai iaon cumant as siped a
a Otd with the ciftaria 01
I 1 $2 (c). This in tius en men
the PR?ia identified an the WA
believes that lb. cureuns rule is
suiliciern for untia tbsss laz
id.ntafl.d PR?. the O OVUN.&t
submat lain —-t f the . ...r4 .
On. ontor stated that —
inIor bi,n that confirms or
substantiates po public
should be made past of the iu ... o
after a ROD Is sip t WA Is
required by ssatuta or z’.”
netd these ce— “
lead e,=pr may. end k
co d o rpo .s.aQD - —- I
consadma to be Rbl*
case both the r end
agency’s i = san post .Ith. ssi _ . .
FInally. WA Is’ ” a L
to I 300 I(b)on.dlb enl puh s
c m— pladl to da0* that, to
addition to o—to and r-p - to
comment., d in eupporti the
requent tee an additional - -
period. and any —
would be pied to the i- ’-tietiws
-tence .fl e pt posai. a :.arcauon
is necessary to ensure COri.sJTency.
Final .iue. EPA, promulgating
300 823 as proposed except for an
addition to th, last sentence of section
(bI as (cUowsi A11 addftaoneJ comments
submitted during such comment periods
that are responsive to the request, and
any responan to sam COmine . along
with documents supporw the request
and any final decision witil respect to
the issue, shall be placed in the
admirusuative record flue.”
Subp.rt i—U,. of O’spermongi a,id
Other Chemical..
The following sectaC s discuss
comment, received on subput I end
EPA. responses.
Name: Sectlon* 3 SeO-300J20 ,
General.
£z,siuig njl•: Section 3C0 .8 descilbed
the purpose and applicabWty of existing
subpart H (ftow subpart 3. and I 300k
define, the key terms used In the
regulation. Section provides that
EPA shall maintain a sched 3e of
daspersants and other eh.mjcal or
biological product. that may be
authorized for use on oil discharges
called the “N Product Scbedida.
Section V 84 seto teeth the.
proceduns by which an CRC may
authorize the use of product. listed on
the N Product Schedule, The section
provides that an CRC. with csnon,noca
of the E PA representative to the RRT
and the C0 5CulY of the at_Il with
hirtsdlction over the navtpble watsun
(U defined by lb. CWA) polluted by the
oil dischazgs , may autherlee the use 01
dispemsuts, a” es “ftng i—m
and bloleWoal additives listed on the
N Prod t 3 -±±. .
This ales pr, , that It the
CRC dva —i — that the ass ofa
A1—t s “i agent, or
‘ 1 J adds , , Is
betentially r a benid
to ha n U end lb.. is_____
to obtain the ui _ . L
the CRC may kter* aasbte . the
use 01 any p’ —’t — ng • , ..th.at
such he — the CRC must infirm the
WA UT z,prs-...tative and the
a e t edat ata01lbs,ofap,sde a t
— as r ’ - and t obtain thee
—
product__ss the dauss to konen Ilfi
has s- t This prsv on ebutostes
delays to potentially Ilflithe.ata.ug
slinadoes, such as spIlis . 1 k
flsable pe lsum prog in
barbs or mar ted aroma
Alt t bs ywW not be listed on the
± nis . this section aloe provides Lee
a se y—,a 5 :as i C .1.
of sir Linq agenu .s ron.:,:e ,
Section 300.14 eXp’.C;tly encOura3es
advance planning for the use of
d:sper,arna arid ether chemicals The
OSC a authorized to a’prvve the use .,f
d:sper,anti and other chemicals withoi 4 t
the concignstce of the EPA
represenlanve to the RRT and the
affected states if these parties h3v
Previously approved a plan idenuifv ’nq
the product, that may be used and the
particular Circuiuistances under which
their use is preauthor,zed,
Section 300.83 details lie dita liat
must be submitted befot, a dispct’,int,
surface collecting agent. or bi loqi ij
additive may be placed art the N
Product Schedule. Section 3
describes the procedures for piac a
product en the Product Sch d l 5 and
also ss forth reqwzenuents designed o
avoid possible misrepresentation or
miaanterprrnataon of the meaw g of the
placem of a product on the Schedule.
including the wording of a disclaimer to
be used an product adveretsemen:. or
technical litarunge referring to
placement on the Product Schedule.
Appendix C derails the methods and
type, of apparatus to be used in carrying
out th. revised standard diapsnant
effectiveness and aquatic to city ails.
Appendin C also set. forth th. format
reqoirod for S aiy pressrua flon of
product taut data.
vpmad nile. Proposed subpart Is
very similar to subpart H and Conta ins
only miner revisions. Section numbera
and rutmsnces to other sections and
subpart. have been changed whssr
appropriate. Techeacal change, and
mmsr wo,d changes so impro ,
clarity have also been made.
Dd Oma flimsily prusanted
siabpest H have been moved to subpeti
A. and a ems definition has been added
for iIa-- _ s oil spill contiol
q.on, Aesdlugly, a list of data
he spill
contiol agent. Is proposed to be added
to I 300J1& The definition for navuphls
watem Is as -..4 in 40 R 110.2.
Section 300J1 which addressed
Authm 5on 01 waam .odjfled
slightly Is he proposed regulation to
sapsetance of obtaining
he lb. use 01 dlapse.ants
and oth — -lo from the
ap , 1 ,-lain onto representatives to th.
onal Rs.p Team (UT) and the
0CC/DOt annul rmosw IV5tIS5 “U
so
throl afDVX/DOlai .taan
Many r——-— , : _ the
01 0 CC/DO S oaslaes an
100
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APPENDIX M
SUBPART I OF NCP
I 4
______ l L _ %sI oo
I Ia d iiw —
G twroi reo.u a aid
iq— y i Ia IM ia a aiIzi vive
aC Co cocuasin ss
tore I s ( a l of a
rupolul icooi. Ths I. i _ ,
ccm$a sad aa i iaimsaiQv.
record in aacr
(bi .1,vv ov. ip r ibrJiun’
foaiici. (U ((a f. rrn qeccy .i
form
f.d t ity. f L I CY á i
U OtlIO _____
record w— of s r =
acoon 2at £aalLey
____ * nay “ u ma
do —
iliad pLs a u s iwaa e
R i..
rdis ad dir — s for
(2) Aa. U .S. Cot Coed s aI$
re it lard . !y form
fidani fl ty.____
(3Ut A m 1 n% of a. —1
of lii . _ .. _ ac a a
or t . t _ J
ulfl 5$ IM d u y s 4 svi
& i& In a.
naorI a. 1PS
1111$ ring for
oruauu& aSi -: jor.or p’gj
co— -: —
pu l L _ I Plor. —y i u’ —- u
A any or a s bys
:c ‘oP sm:a.
ea mrs. ta i Uie lid a ncy
‘or s site. • Slit, ,.a to’l. astd
Italgimic It i sirnse ttv,
i ieiec , of li. res,ons. ac rs ‘or
‘itat site i SC vtcewii t
suoo., . EM may i qtn e e rue
puce adaao, ( doc i.nm .n s
5W5 flLsIp 5O,, ?ica,d fR• :o .ost ta
It, sd I rnu,u. ,e record :c. dn aLl
docu_ . t wozc foon Uia asus for It,
siIic on of ru ott . ac on. The
b a tndu of docuagn,. LncLvd.d to
sdmui a , rs ., . R i. di. RUtS
wgrk (a , die RI!75 rdsusd ‘or pvof!c
com d i. prepo.sd pia . ant. puo o
co a zeorvig on a. P4173 aid
P1 psssd pior sad any othir do m.ni
mqiaast $ Coa oy.c ,
(d i 4 bWap. ‘Thai siabpsg sapua,
tO S i t t$ tindor
letnis IU id or
$S rrd. orordaw or
j’tilfdSiIy uid.jor o(
ma feUon
(1) Pam.d (iI
r- ’sj Invs ‘ —c
d i. pun . .1 dima. ay
sad
z a. i — .
%a a rda a.
of
( I) Pot di . .. ru oaas uOan
In p iç p ( d) of dii i oi
a. 1usd . y ibail y wtdi a.
di i “i n-.lab .
I——I I- — — — .
( Ii l’bs h ad -zy ubg - - a
U of die lard i , -
ani I at
— ‘- -or ,- - _ 4 au bu
of a. Ii — — •
at. aug mi ha s andiMs
us 1 g =
- g qusaty L....
ft - ___
r d bu a srussr t
i4 disi a. U die
at. - - a.
L — . .MULp.Ia.
101
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I.4:!e ‘echn caI
.eri:.. e not generated for be site at
.ssue. s cb as engineering textbooks.
articles from iecnsucal journals, and
toxicological proliles. need riot be
Inca ted at or neat the site at issue or at
the cernrej location, provided that he
lI er!tUII is listed in the index to the
adnuniitiativ, record Oh, or he
li:erarjj’, is cted in a docuaie in the
rec c?d.
(4 Documents included in the
confidential portion of the
aijnus ativ. record file shall be
located c’iiy ut the centi’al Iocatio .
s; The adm.uusn’anve record for a
removal action where the release or
threat of release requges that on-sate
r2moval actWlUea be initiated within
hours of the lead agency’s determination
that a removal a appropriate and on.
site removal activities cease within 30
days of initiation, need be available for
public inspection only at the cen0al
location.
(bI Whet, document. an placed in
the centi’sl location but not in the file
l,cat.d at or neat the sits, such
document. shill be added to the I D.
luca ted at or neat the site upon request
except for documents included in
paruçapa (aJ(4) of this section.
(c i Tb. lead agency may make the
ednunasoanve gscurd file available to
the public in ms sIorm.
{ 300.010 CIJI . ,.A at 1 1 1..U..Lm
re
I a) Connate. The a b4atisd,e
record file for selection of a response
action typically, but not in all cues . will
Contlal the following typeset
documan
(1J Dommenta con ”u g “ ecl
information. data and analyW of lb.
factual information, and data that may
forms basis for the : ±:flns eta
response action. Such dr’i.onte may
include verified sampling date. quabty
connol and quality uswema
documes,ation_, chain of custody fume,
site inspection reports, u1I eary
asses ont and site reports .
ATSDRh.allh ii.--— 1
supporting the lead u
d ote nation
substantial onda pib& k.stth
evaluation.,
evalualma, kaddiflon. for
uo s - ‘e-- —its may
roved wsuI laes for lb.
Such docwrients nay iriciuds guidance
on conducting remethal Invesugationo
and feasibility studies. guidance on
determining applicabl, or relevant and
appropriate reqwr,m , , gwdance on
risk/exposure auossme ta. engineering
handbooks. articles from techjucaj
journals. memoranda on the application
of a specific regulation to a site. and
memoranda on off-sit. disposal
capacuy
(3) Documents roceivet published, or
made availabl, to the public undet
I 300.813 far remedial actions. or
I 300.e for removal actions, Such
documents may include notice of
abailabthty of the admsnasvstive record
file. community relations plan. roposed
plan for remedial action. notices of
public comment periods, public
comments and information received by
the lead agency, and responses to
sageificant co ent
(4) Decision documents. Stack
document. may Include action
memoranda and ts,. ..’ Js of
(3) Enforcement erdere, Suck
documents may include adoasistiati,,
orders and consent deoruem and
(I) An milav of the documsnte
included In the edagnintesti,, mui.&
tUe. !! documents an customarily
çeap.d tcgetbm. u with uampllng data
chain of custody ‘ ment. , they may
be listed as. uup in lb. indents lb.
a ’ti’stive rs.....d file.
(b) Commros not orchubdfo the
cdeuw.w, jJ, re ftIe. Th. lied
r ’7 15 lOt re 11 .L4 to l rhi4
dommoste in lb. e ialve rs...J
01. whIch do not fmma bests fur the
selection of the reepma “ S
slnc ste include but.,, use limited to
theft da - inno m read
and dsp.ts .day note, of staff ‘ ‘ue
such do —’te osutain ndcematios
that f the bast. of of lb.
r e s flns and da toL._atiis I’
lot “ ‘— —d to any other
the a*steativs
(a) ‘M te. Mvtlspd
dsmm.n IIaiOot be ‘ -d in
teased I I. — pt as gee ,ldsd in
pan ap (d)oI l b i s,r t inso,wh.s
stack putedeg, Is waived. Privileged
4:— ‘ .dudo but are net limu’ d to
- - m,s subject to the ey—”—t
atliunsy work prudw , L.likemti,.
or o uppileaW. puM ,
(d) Cenfl goI file. Uthfoumatiie
whIch foums the basis for lb. : ea
i ,, e iacec . i : • • ,_
ponion of inc sWris: ’ar. ?f ’ - -
The confIdential or Privileged doc,.—e-’
itself shall be Placed in he conujce :a 1
portion of the edmiajatianve record .e
If information, such as corifidentiaj
business information, cannot be
summarized in a dasclosable manner
the information shall be placed only in
th. confidential portion of he
adi i ijte,tg,, record file. All
documents contained in the confideri’ al
portion of the adatinustranvi record (lie
shall be listed in the index to the file,
1300110 A*umtep. , rvc file fore
sets .
a) The admnnt,dve record file for
the selection of. remedial action shail
be made available for public inspection
at the commencement of the remedial
investigation phase. At such time. the
lead agency shall publish In a major
local newspaper of general rcuja flori a
notice of the availibdhty of the
a ’wstistive reco . 4 file,
(b) The lead agency shall provide a
public’pmjpe period as specified in
I 300 .43 fk3) a. that interested persona
may submit comments on the selection
of the —tftuJ action for inclusion in
the ‘ “ 1 native rei..d tue. The lead
agency Is encouraged to mmmd ., and
ie.p d as appropriate to sigadIcan
co ents that were submattsd prior to
the public comment period, A written
response to sigeificane comments
submitted during the public comment
period shall be included in the
admlalatest lve record file.
(cJ The lead agency shall comply with
the public psrtistpslon procedwee
required in I 3O0.43 fl(3) and shall
‘ 1 r—’—’ such cospIi.IIa., in the
adminiseati,, reco
(d) Dsmmont. genarated or received
aft., the ru....d of decision in sigeed
shall be to the s ”’•naUve
. e ap r ,vided i nI, ,lv,
I I ‘ lauS s iu me furs
rt j L
(a) I L “ -id on the site evaluation, the
lead qm&y determines that a removal
action Is appeuprlat. and that a planning
period of at least six months exists
betas, os-site aumoval activities must be
i n itiateth
(13 Tb. adalaisesti ,e recoM Me shaU
be mad. s,mfl bl. for public inspection
the es nuurlng evahiation/cost
102
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R
.,,
— . :
3naI 5I £E. ’CAI us i ade vaiiable ‘or
UOIIC comment. At sucn time, the lead
igency snail publisn ‘n a major local
riewspaoer of general circi.ilation a
nottce of he avaI (aoilitv of the
idminust:at.. e recoro file.
The ead aqe cv s ia.L provide a
;uoIiC comment per:oc as specified in
0O 413 so nat interested persons nay
luomut comments on me Selection of me
emova ac:ton for ‘nciusion n ne
aGminhscrative record file. The cad
agency us encouraged to corisicer end
pono. as appropriate. to significant
comments that were submitted prio, to
tne puotic comment period. A written
response to significant comments
suDmitted during the public comment
period shall be included in he
adaunistra live record file.
(3) The lead agency shall comply with
the public participation procedures of
1300.413(m) and shall document
compliance with 300.413(mK3J(i)
through (iii) in the adnuniairatPve record
ri..
(4) Documents generated or received
after the decision document is signed
shall be added to the a ’suauve
record file only as provided in
(b) For all removal actions not
included in paragraph (a) of this a.cuom
ii Documents included in the
administrative record file shall be made
available tot public inspection no later
than 50 days after iOit*atios of oo.sat.
removal acu’nty. At such tIme. ibs lied
agency shall publish in a major local
newspaper of general circulation a
tiatics of availability of the
admuusus tive record Ills.
(2) The lead agency shalL u
appropilate, provide a public t
period of not less than 30 dope
at the time the a *a0utiv, iecwd file
is made avedabi. to lb. public. The lied
agency is secauragud to censsd and
respond. as approprlata. to s* l
comments that wets submittud getor to
he public o— t petted. A ,
case to significant
submitted dunn the publi .
period shall be included Ii lbs
adminasastive record RI.
(3) Deruments gsneissederms......J
after the decision dr is us ed
shall be added to lbs e - osuvs
record file only as prseldsd is I
I 1 .J.a.J r L.....to
- tu
(a) The lead agency may add
document. to the admuususuve iw.d
file after the dacisaoa document
silicting the ruspona action ha. bess
signed it
(1) The documents concern a portion
of response action decision that the
ec:sion doc.ime tt does ot address r
ese es to be aecided at a later ae’ or
i . n explanation of significant
differences required bY 1300 433(c). or
an amenoed dec:sion document s
issued. in wflicn case. the e olanat’ori of
,uqnificant differences or amended
ec:suofl doc ament and iii documents
thai form he oasis for the dectsion to
nodify be response action shall be
added to the administrative record Ale.
IbI The lead agency may hoid
additional puolic comment period.s or
extend the time for the submission of
public comment after a decision
document has been signed on any issues
coriceriung selection of the response
action. Such comment shall be limited to
the issues for which the lead agency has
requested additional comment. All
additional comments submitted during
such comment periods that are
responsive to he request. and any
response to these comments. along with
documents supporting he request and
any final decision with respect to the
issu., shall be placed in the
administrative record file.
(C) The lead agen is required to
consider comments submitted by
interested poisons after the close of the
public comment period only to lbs
extent that the no ts contain
significant infomiado. not contained
e ls.wbeie ii lbs a t*a v record
file winch meld not have been
submitted during the public com i
period and which substan’.lly su ort
the need to sagnaficandy altar the
respome “ & All stash ta and
any ra1 thereto shall be placed is
the e —’— . t rsdvs iscoid lUe .
mput i—ta, ii 0 psr es ai
, — • ___ l .
(a) Section 3U(cKZKCJ of the “ sn
Walto Aal requires that A peeper. a
: t .Ulapsreaats and other
If any, hat maybe used in
cenytag ott the N . This subpart
—“ — ponvistoco for usub a r’ ’dufo .
(b )Thlsesbp art applies te be
nav gei , waters of the United States
and sl ig sborellaea . the waters of
lbs contiguous zone. and the hl seas
ba .ad the contiguous zone is
r- acli with activities under the
Outer Coodsental Shelf tan” Act.
activities under the Duepwater Prt Act
of 1174. or activities that may affect
natural resources belonging to.
appertainlap to. or undet the exclusive
.*p t authority of the United
Status, iscitading resources under the
Magnuson Itsbsry Coiasrvauon and
Ma.agsmsnt Act of 11 ,5.
• ‘ : r’. 3 suopart 40 :. es -e . -‘
--e agents or ,t —er i:: a
as cefined in luopart of ‘s :a ’ a’
may oe used to remove or ::n”o.
olscnarges ,
) 300.% 5 NCP ‘eeuct Scnesijs,
(Ii O F Ossc.’aryeg Ii £P ins..
maintain a scfleduie of ispersan’s i
Other chemical or biologicat roauc’s
that may be authorized or ie on
discnarges in accordance ‘ui ? ‘e
procea.ges set forth n 1300910 :“ $
schedule. called the NCP P”oduc:
Schedule. may be obtained .‘tom he
Emergency Response Division !OS— i
11$. Environmental Protection Age-c
Washington. DC 20410. The !e lepnone
number is 1—Z0Z-312—Z190.
(:1 Products may be added to the “C?
Product Schedule by the process
specified in 300.120.
(bI How ous Siabstonc, Re/crises
(Rasarvsdj.
I .1ie *aaL, n ef use.
(a) The OSC. with the concureenca of
the A esresentatjve to the RRT ant
aa appropriate. the concwrence of the
RRT epmentataves from the states
with jurisdiction over the navigable
water, threatened by the reieose r
dischaaps. and in consultation with the
DOC and 001 natural resource rastees,
when practicable. may authorize lie se
of dlspsnaats. surface collecting agents.
biological additives or miscellaneous oil
spill coniol agents on the oil dmscnarge.
provided that lbs dlapsraanu. surface
collecting agents. biological additives or
‘ t 5is oil spill control agents are
listed as the NCP Product Schedule..
(bi The OSC . with the concumenca of
the DA ...,Ju..untativs to the RRT said.
as appropriate, the usonirrence of he
R I? cuprsa,tativse from the states
with jetIsdicIto . over the navigable
waters threatened by the leess or
dlsshetps. and in consultation with he
DOC and 001 natural resource titisises.
whom prtbls. may authorize the usi
of burning agents ens case-bycass
(ci The OSC mey astheetee the use of
any dlspu’seat. surface collecting agent.
othur “uskcel quit. burning agent.
a1 oddities, or mlscullaneova oil
spill o. .I agont. lacludlaig products
not listed as the N Product Schedule.
withest obtaining the coscurwacs of he
A . ., . : uvsts be RI?. the M l ’
tu,.jeatativss from the states with
junsdiellis o’er the navigable water,
thr.stenud by the release or discharge.
whit, in the j - i of the OS the
use of the ptsduct Is ary to
or substantially reduce a hazard
to hew life. The CRC is to inform lie
103
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Fur b ring the Use of Innovative Treatment
Technologies in OSWER Programs
-------
1. ,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
) WASHINGTON. D.C. 20460
P4(
JUN 1 0 1991
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
O8WER Directive
9380.0 -17
SUBJECT: Furthering the Use of Innovative Treatment Technologies
in OSWER Pr rams
FROM: DonR. Clay
Assa.stant Admini.s or
TO: Director, Waste Management Division,
Regions I, IV, V , VII, and VIII
Director, Environmental Services Division,
Regions I, VI, and VII
Director, Emergency and Remedial Response Division,
Region II
Director, Hazardous Waste Management Division,
Regions III, VI and IX
Director, Hazardous Waste Division, Region X
Director, Water Management Division, Regions IV and X
I want to exercise further leadership in the use of innovative
technologies--by creating additional incentives for affected groups
such as potentially responsible parties, facility owners/operators,
consulting engineers, technology vendors and the public and by
using tools currently at our disposal. EPA and responsible parties
or facility owners/operators, should be exploring and promoting
more effective and less costly technologies to solve the
considerable problems we face. consulting engineers and new
technology vendors are essential partners in this process as well.
While I believe our clean-up partners can and will promote the
implementation of innovative technology, we need to inject a sense
of responsible urgency to prevent the expenditure of dollars in
pursuing less effective or more costly remedies. We have made some
important progress to date, and now is the time to broaden our
efforts and expand into additional program areas. Furthermore, we
have a responsibility to provide technological leadership to the
other major environmental clean-up programs society will b
pursuing beyond those administered by OSWER. This leadership will
not only improve the quality and efficiency of cleanups, but will
also help make U.S. firms leaders in the international marketplace
for waste treatment and site remediation.
P nted on Recycled Paper
-------
Each of the affected groups sees some risk tied to an effort
to “push on the envelope” of technology application. However,
these risks are directly related to potential benefits -- both
short-term at a particular site and long-term benefits which will
accrue from knowledge gained by our experiences. Only if some of
us are willing to work constructively with our uncertainty is there
reason to expect significant progress toward more applications of
technologies that are truly innovative.
I understand innovation requires a sense of creativity and may
be accompanied by false starts, second attempts, intensively re—
engineered solutions, and (despite best efforts) some equipment
failures. I recognize that while most will agree with the need
for new and better approaches, the inherent risks associated with
early technology use serve as very serious impediments. The
extensive review and criticism of our programs from both outside
and inside the Agency may have tended to make us averse to
unnecessary risks. It should be recognized that however well-
designed and carefully planned our efforts may be, they may not
meet contract specifications on many first attempts and may need
refinement before routine application can be expected. Indeed,
information gained from a first-time application that fails to
perform as designed may be viewed as a form of success.
In addition, this definition of innovation needs to be
recognized by EPA regional and headquarters managers. Remedial
Project Managers (RPMs) and On—Scene Coordinators (OSCs) must have
support from their managers if an innovative technology does not
work as expected. The program should recognize and assume the
risks inherent in using new technologies. The challenges these
projects present will usually require great efforts from our most
competent and experienced RPMs and OSCs. They should view these
challenges as career opportunities rather than as career risks.
Innovative treatment technologies should be routinely
considered as an option in engineering studies where treatment is
appropriate. They should not be eliminated from consideration
solely because of uncertainties in their performance and cost.
These technologies may be found to be cost-effective, despite the
fact the their costs are greater than conventional options, after
consideration of potential benefits which could include increased
protection, superior performance, and greater community acceptance.
In addition, future sites will benefit by information gained from
the field experience.
The attached directive is designed to increase field
applications of innovative technologies for cleaning up
contaminated sites. It also encourages expanded application of
existing OSWER policies and emphasizes the value of existing.
support activities in this area. It is intended to sharpen the
focus and level of attention by EPA staff and managers o their
mission to provide technological leadership by implementing
existing authorities under the Superfund, Resource Conservation and
Recovery Act (RcRA), Underground Storage Tank (UST), and Oil
11
-------
Pollution Act programs. Furthermore, this guidance is intended to
integrate the continual search for improved remedies with the use
of new technologies and to make this objective a permanent feature
of EPA’s clean-up programs. It is intended to create an atmosphere
which recognizes that reasonable risk—taking, which is protective
of human health and the environment, is necessary to achieve this
end.
The statement consists of seven major initiatives. The first
four initiatives concern the Superfund program. The first one
addresses some impediments to the full-scale use of new equipment
and encourages expedited funding of remedial design and
construction projects. This initiative also provides contract
flexibility in the start-up phase of selected remedial and removal
actions to assist vendors in establishing a pattern of reliable
operation in order to satisfy contract performance standards. The
second initiative is intended to ensure that innovative
alternatives are thoroughly evaluated for PRP—lead sites that are
early in the planning process. This provision encourages EPA
regions to fund treatability studies and engineering analyses for
promising treatment technologies that might otherwise be considered
unproven by the PRPs and too early in the development process. The
third initiative provides a capability to rapidly evaluate the
efficacy of a PRP—proposed innovative remedy that is of fered in
addition to the primary one approved in the Record of Decision
(ROD). This provision entails direct technical support to evaluate
innovative remedies, while moving the remedjatjon process forward.
The fourth initiative seeks to utilize the potential of the removal
program for expanding our experience with the field application of
new technologies. The directive clarifies OSWER’s position that
the removal program is an important and viable means for furthering
the use of these treatment alternatives.
Another provision in the guidance is designed to encourage
studies on the potential use of new technologies for RCRA
corrective action. Regions should consider promoting the pilot
testing of promising innovative technologies at a limited number of
sites. In the past, land ban considerations have sometimes
discouraged owners/operators or regions from pursuing such
approaches. This guidance encourages the use of soil and debris
treatabi].ity variances, where necessary, to allow innovative
technology studies to proceed. This authority was recently
delegated to the regions.
The sixth initiative recognizes unique opportunj jes presented
by Federal facilities. We are exploring the potential use of these
facilities for developing and applying new technologies, and
regional offices are encouraged to work with Federal facility
managers to further this objective. -
The final provision encourages expanded use of the Federal
Technology Transfer Act as an opportunity for joint technology
assessments with industry. PRP5 and owners/operators may sign
cooperative agreemen with EPA for services to support innovative
-------
technology treatability or pilot studies. This procedure offers
the prospect of non—adversarial engagement, outside the regulatory
context, to allow the development of third-party data on
reinediat ion technologies.
I know there is a tension created by the desire to promote new
technology developments within existing management tracking systems
and program commitments and goals. i recognize that these goals
may also be statutory in origin. Issues are certain to arise
concerning the selection and use of new treatment technologies
because of the rapid pace of development in this area. These
issues cannot be resolved by this guidance and must be addressed
through common sense and judgement on a case—by—case basis. There
may be circumstances where program goals and commitments must be
adjusted in order to achieve better clean—up solutions.
Although not specifically discussed in the attached guidance,
EPA is also strongly committed to using innovative technologies in
cleaning up oil spills under the Oil Pollution Act. We have
embarked on an aggressive research program with other Federal
agencies and the private sector to examine clean—up technologies
and remediation techniques. We anticipate this work will lead to
new and improved technologies in this area as well.
This directive is a call for your attention to exploring and
exploiting opportunities for using innovative remediation
technologies. it reflects my personal commitment and belief that
we must invest the necessary resources and take the risks now to
develop the technologies necessary to fulfill the long-term needs
of our hazardous waste clean—up programs.
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OSWER Directive
9380.0—17
GUIDMICE
FOR INCREABING TEE APPLICATION OF
INNOVATIVE TREATNENT TECENOWG IRS FOR
CONTAMINATED BOIL AIID GROUND WATER
INTRODUCTION
The Office of Solid Waste and Emergency Response (OSWER) is
seeking to further the use of innovative treatment technologies in
order to (1) better pursue its statutory and regulatory mandates to
promote treatment to the maximum extent practicable, (2) speed the
availability of performance data regarding newly developed
treatment technologies to many constituencies facing mandates to
clean contaminated sites, (3) broaden the inventory of accepted
treatment-based solutions, and (4) increase the likelihood that
remediation costs can be lowered in the near term through the
demonstration of a larger number of engineering options to solve
site remediatjon problems.
Both SARA and HSWA give us the framework to consider treatment
as an essential element in our clean-up decisionmaking. Our record
of accomplishment since SARA in selecting treatment technologies
for Superfund remedial and removal projects is very good. However,
our experience in implementing remedies is limited, and we face a
large future obligation to cleanup sites in the R RA and UST
programs. For example, the large number of cleanups expected under
the RCRA corrective action program may encompass up to 4,000
facilities and 64,000 waste management units.
Section 121(b) of CERCLA requires EPA to select remedies that
“utilize permanent solutions and alternative treatment technologies
or resource recovery technologies to the maximum extent
practicable” and to prefer remedial actions in which treatment
“permanently and significantly reduces the volume, toxicity, or
mobility of hazardous substances, pollutants, and contaminants as
a principal, element.” This objective of permanent treatment-based
remedies should be applied to R RA and UST cleanups, within their
respective legislative contexts. To achieve this goal, EPA must
encourage new or innovative treatment technologies that are capable
of treating contaminated soils/sludges and ground water more
effectively, less expensively, and in a manner more acceptable to
the public than existing conventional methods.
Innovative treatment technologies are newly developed
technologies whose lack of sufficient full—scale application blocks
routine consideration for site remediatjon. They may be new
technologies, or may be available and in use for various industrial
applications other than hazardous waste remediation. As such,
innovative technologies are not part of standard engineering
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practice or the competitive market process where available
alternatives are routinely presented to the government and private
sector. In functional terms, we define as “innovative” those
treatment technologies for source control other than incineration
and solidificatjon/st ,jlizatjon and pumping with conventional
treatment for ground water. Innovative technologies inherently
require extra effort to gather information and analyze options and
extra engineering and financial risk in adapting them for specific
site applications. In addition, there is extra uncertainty for
people developing such solutions who work in organizations focused
on performance outcomes with high levels of certainty and known
costs.
Existing directives and guidance contain a number of
references that encourage the consideration of innovative
technologies. Policy for the Superfund program was originally
outlined in a February 21, 1989 memorandum on “Advancing the Use of
Treatment Technologies for Superfund Remedies.” This memorandum
reaffirmed the use of treatment technologies and summarized
guidance documents and activities that supported the use of
innovative technologies. It cited the need to search for new
technologies that can improve performance and reduce cost. The
importance of innovative technologies was further emphasized in the
Superfund Management Review (90-Day Study) which primarily
contained recommendations concerning technical support and
research. More recently, the National Contingency Plan expects
that treatment will be used for highly toxic and highly mobile
waste and encourages the consideration of innovative methods.
As a result of SARA and this guidance, the selection of
innovative technologies in the remedial program has increased
dramatically. For the last three fiscal years, almost half of the
selected treatment technologies for source control have been
innovative. However, few full—scale innovative remedies have
actually been implemented. As a result, we are not benefiting from
actual clean—up experience or developing the equipment necessary to
fulfill long—term program needs. This directive seeks to preserve
our momentum with the selection of these technologies, to expedite
their use in remedial actions,to expand the application of new
technologies to other OSWER programs, and to realize the potential
for development and technology application at Federal facilities.
This directive sets forth several initiatives and new
procedures that will help provide incentives for broader use of
innovative technology. Some of these initiatives are directed
toward potential responsible parties and owners/operators, since
they will be assuming a larger share of the remedial projects in
the future. Other new initiatives are intended to remove
impediments to the first-time use of new equipment. The directive.
also encourages wider application of available resources and tools.
In addition, Attachment A highlights some important ongoing program
efforts that deserve mentioning.
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BTATEXENT OF INTENT
Innovative treatment technologies are to be routinely
considered as an option in feasibility studies for remedial sites
and engineering evaluations for removals in the Superfund program,
where treatment is appropriate commensurate with the National
Contingency Plan (NCP) expectations. In addition, innovative
treatment-based remedies should be pursued to the extent
practicable for cleanup of RCRA and UST units that pose significant
health and environmental threats similar to those at Superfund
sites. EPA should exercise leadership with state UST programs to
encourage similar approaches for underground tanks. Innovative
technologies considered in the remedy selection process for
Superfund, RcRAI, and UST should be eliminated solely on the
grounds that an absence of full—scale experience or treatability
study data makes their operational performance and cost less
certain than other forms of remediation.
When assessing innovative technologies, it is important to
fully account for their benefits. Despite the fact that their
costs may be greater than conventional options, innovative
technologies may be found to be cost—effective, after accounting
for such factors as increased protection, superior performance, and
greater community acceptance. In addition, experience gained from
the application of these solutions will help realize their
potential benefits at other sites with similar contaminants.
NEW INITIATIVES
This directive prescribes six new initiatives affecting
Superfund and RCRA programs to encourage and further enable the
field application of innovative technologies and their evaluation
for potential further use. It also affirms the use of a relatively
little-used opportunity for joint EPA work with PRPS and
owners/operators to evaluate new technologies.
1. Superfund Innovative Technology Start-Up Initiative.
Designed for Fund—lead projects, this initiative consists
of two efforts to assist the early application of new
technology. First, we need to encourage the expedited funding
of remedial design and construction projects that involve
innovative treatment technologies. OEJ.R will be revising its
Remedial Action funding priority-setting procedures to give
more consideration to innovative technologies. Earlier
funding of these projects will help achieve the technology
development goals of the Superfund program and will provide
EPA with significant data to support future Records of
Decisions (RODS).
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Second, this initiative provides contract flexibility in
the start—up phase of selected remedial and removal actions to
assist vendors in establishing a pattern of reliable operation
that satisfies performance standards. This is intended to
address some of the impediments to the use of new full-scale
equipment; it will support initial start-up and shake-down
costs and modifications necessary to effectively evaluate
whether the selected technology can perform to specifications
prior to beginning actual remediation. In the remedial
program, the Corps of Engineers (COE) will provide separate
contract provisions that will aid in the commencement of
operations of a unit process or integrated set of processes
and will be available only for some proportion of the whole
site remedy (e.g., processing the first 1,000 cu. yds. of a
30,000 cu. yd. site). Funds are not targeted at making the
technology work at any cost, but to aid in clearly
establishing the likely performance adequacy of the technology
prior to the onset of the contracted clean—up effort.
Contracting strategies are being considered to compensate
vendors, regardless of whether they successfully achieve
performance limits. Further implementation guidance for the
remedial and removal programs will be issued later this year.
2. Dual Track RI/PS Initiative (Superfund)
This initiative is designed for PRP—lead sites that are
early in the planning process where there is an opportunity to
conduct engineering evaluations of remedies through the RI/PS
process. This initiative is intended to ensure that
innovative technologies are thoroughly evaluated and that
needed treatability studies are conducted for potential
remedies. This provision should help encourage EPA to take
risks (when faced with reluctant PRPs) that it would not
otherwise take by encouraging a comprehensive evaluation of
technologies. EPA regions may fund additional treatability
studies and engineering analyses for promising treatment
technologies that would otherwise be considered unproven and
too early in the development process. The purpose of this
initiative is to encourage treatability studies to ensure that
alternative remedies that the government believes may have
merit are thoroughly evaluated and considered in the ROD.
Data from EPA treatability studies and the evaluation of
additional innovative technologies have intrinsic value to the
Agency. Therefore, even if, in a particular case, there may
be some doubt as to EPA’s ability to cost recover for these
additional studies (although, in general, the Agency would
expect such costs to be subject to cost recovery), these
studies should be pursued based on their value to the overall
program.
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3. Tandem ROD Evaluation Initiative (Superfund)
As in the previous initiative, this provision is
primarily designed for PRP-lead sites, although it may also be
applicable for some Fund—financed situations. This program
will provide a capability to rapidly evaluate the efficacy of
a PRP-proposed innovative remedy that is offered in tandem
with the primary one approved in the ROD. Both of the
remedies would be part of the proposed plan. Typically, such
an alternate solution would be approved on a contingent basis
in the ROD based on acceptable treatability studies, but it
would need further development and pilot testing during the
design period for the primary technology. Tandem RODS (or
contingent RODS based on formal evaluation) are a decision
vehicle designed to move the process of cleanup toward
expeditious closure, while leaving room for PRPs with a
decided interest in innovative technologies to pursue
additional pilot tests to demonstrate an alternate approach
that is both innovative and potentially cost-effective. This
program is based on direct technical support for regional
project management teams to help resolve technical issues
posed by alternate approaches; it is designed to lift the
burden from the regional project manager of bearing the risks
of evaluating and trying something “new.”
Technical support will be provided for focused evaluation
of the PRP work so as to support expedient regional decisions
about the acceptability of the alternate technology. The work
will be carried out with and through the appropriate OSWER/ORD
Technical Support Centers or the SITE demonstration program
and will be conducted as a mini—evaluation of the proposed
alternative so that the data will be available for future
applications. When considering whether to proceed with a
tandem ROD, regions should first consult with ORD concerning
the scope of effort required for the evaluation.
In the case in which the secondary innovative technology
is chosen for implementation (after the completion of pilot
testing) but significant delays to the original schedule have
occurred, the region may consider the engineering problems of
making the full-scale unit operational in assessing stipulated
penalties. That is, in limited cases, stipulated penalties
should not be imposed if the delays are the unavoidable result
of being innovative.
4. Removal Program Initiative (Superfund)
The removal program represents an important and viable
means for expediting the field application of innovative
technologies. The relatively small volumes frequently
requiring response and streamlined contracting procedures
provide an opportunity to complete clean-up projects afld
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provide documentation on lessons learned relatively quickly.
Smaller waste volumes at some sites may also allow the use of
pilot—scale technologies under some circumstances.
Although there have been more innovative projects
actually constructed through the removal program than the
remedial program, its potential has not been fully realized.
This is because time constraints often favor excavation and
off-site disposal or treatment and also because of the absence
of clear legislated goals regarding the use of new technology.
This subject was one of the issues addressed in a 1988 audit
report by the Inspector General of Region IV removal sites.
The report has had the undesirable effect of discouraging OSC5
from using these technologies.
This directive is meant to clarify EPA’s position on this
issue. It is OSWER policy to further the use of innovative
technologies through the removal program. This includes all
actions, including time—critical actions, where feasible.
These projects are expected to fulfill an important role in
adding to our knowledge base on promising new technologies.
Further guidance will be included in an upcoming document,
“Administrative Guidance for Removal Program Use of
Alternatives to Land Disposal” cosw Directive 9380.2-1),
which provides guidelines promoting the use of alternatives to
land disposal.
5. RIRA Corrective Action and Closure Innovative Technology
Initiative
We are currently engaged in efforts to develop best
demonstrated available technology (BDAT) treatment standards
for contaminated soil and debris at CERCLA and RCRA corrective
action and closure sites. These sites present unique treatment
problems that were not generally considered in developing the
current BDAT standards, which were based on data from the
treatment of industrial process wastes. There is general
agreement that wide scale use of incineration is not
appropriate for soil and debris, and there is a need to
explore alternative approaches. The current schedule is to
promulgate a rule for debris in May 1992 and soil in April
1993. Prior to publication of these final rules,
specific treatabjljty variance rocegg (40 CFR 268.44 (h is
avg jiable for contaminated soil and debris to establish an
alternative standard for specified waste at individual sites.
The variance process, along with applicable guidance treatment
levels, is described in Superfund LDR Guide #6A (OSWER
Directive: 9347.3-06Fs, July 1989), and is intended to be used
as an interim approach until final standards are established..
This initiative encourages the regions to use
treatability variances at corrective action and closure sites
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to conduct treatability or technology demonstration studies to
gain additional information on the use of innovative treatment
for contaminated soil and debris. The regions should select
appropriate pilot-scale projects with cooperative
owners/operators that can provide data on the capability of
technologies and the treatability of different wastes. The
infQrmation from this work should help to expedite corrective
action and closures after the final BDAT rule is published for
soils. It is also possible that early data from this effort
could be available for consideration in the final rule.
Projects should be carefully selected to maximize the
utility of data and likelihood of success. Regional
corrective action staff and regional Superfund staff should
communicate regarding the history of use of treatability
variances in the Superfund program to identify site factors
that require consideration when selecting an appropriate site.
Authority for issuing site—specific variances for
contaminated soil and debris has recently been delegated to
the regions (Decision Memorandum: “Delegation of Authority to
Grant Treatability Variances,” from Charles L. Grizzle to the
Administrator, April 12, 1991). The facility and EPA, in
collaboration with the state, can implement variances for on—
site demonstrations through two mechanisms: temporary
authorization under the Permit Modification Rule, or 3008(h)
orders for interim—status facilities.
6. Demonstration Projects at Federal Facilities (Superfund, RCRA,
and UST)
Federal facilities offer unique opportunities for both
developing and applying innovative approaches to hazardous
waste remedjatjon. Desirable attributes include their often
sizable areas and isolated locations, controlled access,
numerous contamination problems, and increasingly active
environmental restoration programs.
EPA headquarters is exploring the use of Federal
facilities for both site—specific technology demonstrations
and as test locations for evaluation of more widely applicable
technologies. Equally important is the establishment of
mechanisms to ensure timely sharing of information. Regions
are encouraged to suggest innovative approaches and to be
receptive to proposals for innovation from Federal facility
managers, e.g., by building timing and performance flexibility
into compliance agreements in acknowledgment of current
uncertainties associated with innovation.
The Office of Federal Facilities Enforcement (OFFE) will
work with the regions to identify locations for sponsoring
potential test and evaluation activities. With assistance
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from the Technology Innovation Office, OFFE will develop
necessary policies and guidance to ensure that support for
innovation is congruent With other program and environmental
objectives.
7. Joint Technology Assessment Opportunities with Industry under
the Federal Technology Transfer Act
During the clean—up planning and implementation process,
PRPs or owners/operators should be reminded of the opportunity
to engage EPA in evaluation studies and other arrangements
their expense to determine whether innovative technology
concepts would be operative in the situation they are facing
or other similar situations. Under the Federal Technology
Transfer Act (FTTA) of 1986 and Executive Order 12591,
cooperative agreements related to research, development, and
technology transfer can be expeditiously executed (i.e., in
less than 60 days) between industry and government. In this
case, such arrangements would allow the PRP to reimburse EPA
for facilities, support services, and staff time spent in
joint evaluation of ear].v technology treatability or pilot
studies. As projects progress into the later planning stages,
careful judgement needs to be exercised to avoid new work that
will result in unproductive delay, while remaining sensitive
to important new technology developments.
Since this program is conducted in the research and
development arena, it offers the prospects of non—adversarial
engagement, outside the regulatory context, to allow the joint
development of credible data about remediation technologies.
This opportunity should be es ecia1ly advantageous to (1) PRPs
and owners/operators capable of early planning for technology
options at a few sites and desirous of early EPA input, as
well as (2) PRPs and owners/operators faced with a number of
similar waste sites in the future—— under Superfund, RCRA
Corrective Action, and the UST program--who want to develop
more uniform, cost—effective technology proposals for such
sites. Basic information about the FTTA is described further
in Attachment B.
IMPLEMENTATION
The first six initiatives involve field testing new
technologies that may benefit by technical assistance from the
Office of Research and Development (ORD). ORD represents an
objective third party that can be easily accessed through the
existing OSWER/ORD support structure. This structure consists of
five laboratories, which constitute the Technical Support Centers
(both for Superfund and newly established for RcRA), the Superfund
Technical Assistance Response Team (START) program, the
Bioreinediatjon Field Initiative, and the Superfund Innovative
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Technology Evaluation (SITE) program. Several of these programs
are discussed later in this memorandum, and Regional offices are
encouraged to use them. OSWER has asked ORD to give priority to
requests for technical assistance under this directive, and we will
use our existing priority—setting systems to accommodate needs
articulated pursuant to this directive.
3RO DER APPLICATION OP AVAILABLE RESOURCEØ MID TOOLB
In addition to these new initiatives, the application of other
important existing policies and efforts should be broadened.
o Furthering Innovative Remediation at Leaking UST Sites
State and local UST programs have identified 100,000
confirmed leaks, and this number may triple in the next
several years. The majority of sites currently undergoing
corrective action are being remediated through pumping and
treating ground water and excavation and off-site disposal of
contaminated soil. The national UST program has established
corrective action streamlining as one of its top priorities.
The program’s strategy includes promoting the use of improved
technologies that will produce better and faster cleanups at
lower cost than traditional methods.
The UST/LUST program has worked closely with the Office
of Research and Development and private companies to foster
the development of innovative site assessment and cleanup
technologies, such as field measurement techniques, soil vapor
surveying, vacuum—enhanced free—product recovery, active and
passive bioremediation, and vacuum extraction. These
technologies now must be moved from demonstrations to routine
use in the field. Regional offices should increase their
efforts to make state and local managers and staff, as well as
cleanup consultants and contractors, more familiar with these
non-traditional but proven technologies. Headquarters will
continue fostering the development of even never tools and
techniques and should increase its support of regional efforts
to achieve broader use of improved technologies.
o Further Enabling State Innovative Technology Leadership
First, the CERCLA core funding program provides an
opportunity to assist states in establishing innovative
technology advocates. Core program cooperative agreements
help support state response programs to ensure involvement in
CERCLA implementation activities. This may be a vehicle for
promoting new technologies where the state and region agree it
is appropriate. This approach is currently being utilized
with success in Minnesota. The advocates can serve an
important role of promoting the development and use of
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innovative technologies in the state CERCLA programs, with
obvious spinoff benefits for their R RA and UST programs. Some
states have shown a strong interest in new technologies, and
we should do everything possible to support their efforts and
encourage initiatives at the state level.
Second, last year’s R RA ImDlementatjon Study highlighted
the opportunity to empower a few states interested in
furthering technology development. Regions should be open and
encouraging of state applications for authority for RCRA R&D
permitting, permit modification, treatability exclusion, and
Subpart X permitting. States not authorized for RD&D
permitting may consider a cooperative effort with the region
for issuing these permits. The RD&D activities could involve
treatability studies for a site or activities to help develop
and commercialize a technology. This package of authorities
will allow new technology developers and users to flourish in
selected states.
In addition to the Federal Facilities Initiative above,
states may want to work directly with Federal facilities in
developing pilot sites for innovative technology. These
activities do not have to be limited to final remedies, but
may also include treatability tests, site stabilization, and
demonstrations. Federal facilities under both CERCLA and RCRA
authority may be particularly well suited for integrating
clean—up activities with innovative treatment technologies.
o Model RI/FS Work Plan and PRP Notice Letter Demand for
Innovative Options
Some regions have issued special notices containing a
Statement of Work and administrative order language requiring
the responsible party to evaluate the use of innovative
technologies at a particular site. This procedure should
receive broader use at Superfund sites where alternatives for
remediatjon are being considered for analysis in the RI/FS and
where prerequisite treatability studies are required. This
requirement in the special or general notice letters will help
facilitate the development and use of innovative treatment
technologies by the private sector. Specific language for
this approach could be developed from OWPE’s guidance document
titled “Model Statement of Work for RI/FSs conducted by PRPs”
(OSWER Directive 9835.8).
o Advocacy and Funding of Treatability Studies
Superfund program policy (Directive 9380.3—O2FS,
Treatabi.zity Studies Under CERCLA: An Overview, Decembex
1989) requires that treatability studies should be conducted
to generate data needed to support the implementation of
treatment technologies-. For sites where an innovative
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technology is being considered, these studies will help
provide performance information that Should assist in the
engineering evaluations. Funds are budgeted annually in the
SCAP based on expected need for conducting treatability
studies. Data and reports from these studies should be
forwarded to Glen Shaul at ORD’s Risk Reduction Engineering
Lab. The appropriate protocol and format for these reports
can be found in the “Guide for Conducting Treatability Studies
Under CERCLA” (EPA/540/2-89/058). Information contained in
these reports will be available through the Alternative
Treatment Technology Information Center (ATTIC).
Every effort should be made to conduct or, as
appropriate, to evaluate the PRP’s treatability study. In
planning for this activity, oversight funding should be
requested through the SCAP budget process. Oversight of PRP-
lead treatability studies may be funded through the
enforcement budget. In situations where PRP5 recommend use of
innovative treatment technologies at a site, but where
treatabiljty study data are insufficient, EPA policy allows
the Agency to fund and conduct technology-Specific
treatability studies. The costs associated with the conduct
of these treatability studies are recoverable under Section
107 of CERCLA.
o Tracking and Expediting SITE Demonstrations
A recent Inspector General audit of the SITE program
focused on delays in matching Superfund sites with
technologies. This has contributed to overall delays in
completing demonstration projects and technology assessments.
In response, OSWER is encouraging greater participation in the
SITE program and will begin tracking regional site nominations
as a reporting measure in STARS (see “Implementation of an
OSWER Recommendation from the Office of Inspector General
Audit Report on the Superfund Innovative Technology Evaluation
(SITE) Program”- -memor dated January 2, 1991). OSWER
will support the designation of additional regional FTE for
support of SITE program demonstrations and recognizes the
potential for time delays in RI/FSs at sites with
demonstration projects. ORD management has also agreed that
SITE demonstration projects must be more responsive to
regional needs for treatability data.
Recently, ORD completed an internal management review of
the SITE program. The purpose of the review was to evaluate
the program’s impact on Superfund remediation activities and
to identify any changes needed to improve the program.
Several changes already adopted are directed at making the
program a more integral component of regional office Superfund
site activities. The SITE program will make the design of
technology evaluations sufficiently flexible to meet the
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regional offices’ needs for treatability studies before remedy
selection is made. SITE demonstration data will be presented
to the RPM or osc on a fast turnaround basis so that the data
are available to be factored into the remedy selection
decision. The SITE program will take advantage of ongoing
remediation activities as a source of technology evaluations
and technology transfer where possible. In addition, the
program will use sites that are being evaluated under the
START program and projects that are identified pursuant to
this directive, as potential test locations for SITE
evaluations.
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ATTACEXEWr A
Existing Program Efforts to Further Innov tjve Technologies
OSWER has several other ongoing efforts directed toward
furthering the application of innovative alternatives through the
acquisition and efficient use of data, reduction of technical
uncertainties, and elimination of contracting impediments. These
programs represent important resources that should continue to be
used. The first two resources, that are of interest to the UST,
RCRA, and Superfund Programs, concern the collection and use of
data:
o Technical Support and Information Management
Readily accessible information on innovative technologies
is a major priority of the Superfund program. This objective
is being met through the utilization of on-line computer
systems, direct expert technical assistance, and support for
field activities to evaluate the performance of a given
technology. Currently, EPA maintains several computer
databases that may be accessed for information on treatment
technologies. These databases include the Alternative
Treatment Technology Information Center (ATTIC), the OSWER
Bulletin Board (CLU-IN), the ROD Database, the Hazardous Waste
Collection Database, and the Computerized On-line Information
System (COLIS). These systems include information on the
application of innovative technologies and may be used to aid
networking among OSCs and RPMs. Due to the general shortage
of cost and performance data on new technologies, use of these
databases is important to provide the most current information
available.
Technical assistance is available to Superfund and RCRA
staff through ORD’s Technical Support Centers and the
Environmental Response Branch, OERR. Part of this effort
involves networking among project managers through the
engineering and ground water forums. In addition, as part of
an initiative to provide direct technical support to OSCs and
RPMs, the Superfund Technical Assistance Response Team(START)
has been established to help evaluate the potential use of
technologies. Currently, technical experts from EPA’s Office
of Research and Development are providing long-term
consultation and support at 35 sites with complex treatment
technologies issues. In addition, 01W is assisting the
Superfund program in developing protocols for conducting
treatabi]ity studies, so technologies can be evaluated using
standardized parameters, ORD is also providing a staff person
in each Regional office to serve as a liaison with their
engineers and scientists.
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o Bioremedjatjon Field Initiative
Begun in the 4th quarter of F l 90, this program is
intended to provide more real-time information on the field
application of biotechnology for treating hazardous waste.
Currently, over 131 CERCLA, RCRA, and UST sites have been
identified as considering, planning, or operating full-scale
biotreatment systems. The major focus of this initiative is
to furnish direct support in evaluating full-scale cleanup
operations and technical assistance for conducting
treatability and pilot-scale studies. Several sites have
already been selected for participation in the program.
Performance, cost, and reliability information generated from
these bioremediatjon studies will be used to further develop
a treatabi]jty study database that will be made available to
regional staff.
o Procurements for Innovative Technologies
Over the past several months, OSWER has been working with
the Procurement and Contracts Management Division (P MD) to
address particular issues associated with the procurement of
innovative technologies. As these issues are resolved,
regions are encouraged to use the new provisions to the extent
possible. The first issue concerns the contracting for
treatability studies. Under the Federal Acquisition
Regulations (FAR), firms are restricted from performing both
the design and construction of a project. EPA has determined
that this prohibition applies only to the prime contractor
responsible for the overall design, and not to subcontractors
performing treatability studies. The EPA Acquisition
Regulations are being amended to clarify this point and to
allow possible exceptions for contractors to work on both
design and construction on a case—by—case basis.
A second issue concerns constraints on con tractors
working for both EPA and later working for a potentially
responsible party (PR?) at the same site. This constraint was
originally imposed on contractors to avoid conflicts of
interest. Innovative technology is a special exception within
these general guidelines. Rather than automatically assuming
a contractor should first be precluded from working for a PRP
after working for EPA, it is EPA’s intent and commitment to
first permit contractors and/or subcontractors performing
evaluations of innovative technologies for the Agency to later
work for the PRPs in as many instances as possible. Only in
rare instances would EPA envision not permitting such work to
be performed for the PRP. EPA and PRPs often work together in
the spirit of cooperation and site work may be divided
accordingly. The Agency has therefore determined not to
preclude PRPs from using EPA con tractors to perform such work
as treatability studies. In addition, we want to ensure that
14
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vendors who perform treatabi].ity studies for EPA may also
remain eligible to support PRP-lead design or Construction
work. This position is reflected in the final conflict of
interest provisions for Superfund contracts which are
currently being prepared and were initially published in the
Federal Register as a proposed rule.
15
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AT ACHNENT B
Un d States
Environmental Protection
Agency
Qffj . of Research and
Development
Washington, DC 20460
EPAI600/9901050
November 1990
Opportunities for Cooperative R&D with
EPA: The Federal Technology Transfer Act
Both the U.S. Environmental Protection Agency (EPA)
and laivate industry seek new, cost-effective technologies to
prevent and control pollution. In the past, however, legal and
itLsututional barriers have prevented government and
industry from collaborating hr developing and marketing
these t lmol gres. Also 1 din efforts of many companies to
develop new technologies have been stymied by a lack of
zesowces, such an scientific n in particular or
highly ape ’i”!d equipment The Federal Technology
Transfer Act of 1986 (Frl ’A) removes some of these barriers
to the development of commercial pollution control tech-
nologies.
The FITA m fr,j possible cooperative ies . 1 h and
development agreements (QDM) between federal laborato-
ries, indi iy , and i ini instim,ions. CRDAs set forth the
cams of government/Industry collaboration to develop and
commercialize new technologies. According to the Act, these
agreements will foster the technological and industrial
iturovatrø that is to the economic, environmental,
and social well-being of - .. c i the United Staces.
What Can Industry Gobs from Signing a CRDA
with EPA?
Access to High-Quality Sdence
EPA’s 12 research laboratories employ over 600
scientists and engineers. Many of these laboratories combine
fully permitted L Sl ug fwiliei. 1 Cet’ain types of environ-
mental researdi, such as development of inaov iive tech-
nologies for Ueat ug hazardo a was ’ require the collabora-
tion of experts in many different “. This type of interac-
tion is easily adepted at EPA laboratories, lwauge they em
inter -dininiln.,b in
Expanded Communlcuuan auu
Government and the Private Sector
- -. - - --——-‘- Between
w.--- — -u- . npe tretween the
government and din All parties b ’e t from
the different p--. , dves -. m it sad private sec
sc entisrs bring to an R&D Iauj.L
Exclusive Agreements for Developing New
Technologies
Until recently, ind iiy had little incentive to cooperate
with federal laboratories because any technologies developed
d gjo h itreseachrem I ned h ithepublicdo for
use. Now, under some CRDAS, companies are given
exclusive rights to market and commercialize new technolo-
gies that remit from the cellabo
Licensing and Research Agreements:
How Do They Work?
The procedure for setting up a cooperative R&D or
licensing agreement mv the F1 ’TA is designed to encour-
age collaboration between Industry and EPA laboratories.
For industry, the key advantage of the procear is the speed
and ease with which the agreements can be negotiated and
signed. CRDAs are not subject to federal contracting or gram
requirements. In dditinn . each laboratory director has the
v ivwity to establish CRDAs for that particular lab, and this
decenv Ii uth’n of the decision-making process reduces the
thnhn r.tive procedwea involved.
Another important advantage is that CRDAs are flexible
enough to fit the goals of many different sizes and types of
comp ni For example , wider the PiTA, a company can
support applied research at an EPA laboratory while reserv-
ing &st rights to involvement in any technology that results.
Or, if the n ecb n. m that n frn , a co’npan s
product work is unbown, the Qo .. .Iny can cooperate with
an EPA laboratory to id tify this mer ni n . A company
cm also e apace arid equipment with EPA in a combined
effort to develop an innovative r hiloiegy .
Interested?
Sewral c unpi..i aheady have CRDAs with EPA,
m hidiqg Exxon, Shell Oil. Ford Motor Company, Dow-
Corning, H wlert-PaJ 1 a and CIM Hill. as well as several
al1 — -
For fusthar about this program please write
Mr. Larry adkin, FITA Coordirutor
Office of Thchnology Transfer and Regulatory Support
Office of Resemch and Development
U . S. Environmental Protection Agency
26 West Martin’ iuh.r King Drive
C ”cip . 1 azi ,OH 45268.
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