This issue of the ROD Update summarizes the latest information and guidance in three areas: (1) ROD Ground Water Language; (2) The Twenty-Second Remedy
Delegation Report and Consuftation Requirements; and (3) Administrative Records.
Record Of Decision (ROD)
Ground Water Language
OSWER issued Directive 9283.1-03,
Suggested ROD Language for Various
Ground Water Remediation Options, on
October 10, 1990. This Directive provides
suggested language for Records of Deci-
sion addressing ground water and
supplemental guidance relative to ground
water remediation actions.
BACKGROUND
In 1 988,OSWER conducted astudy of the
efficacyof ground watertreatment systems
in achieving specified cleanup levels at 19
sites where ground water extraction was
being implemented for containment and!
or reduction of ground watercontaminants.
Based on the findings and recommenda-
tions of the study, OSWER issued Direc-
tive No. 9355.4-03, October 18, 1989,
Considerations in Ground Water
Remediation at Superfund Sites, which
recommended consideration of three ap-
proaches to planning and implementing
ground water remediation:
• Initiation of early or interim response
measures designed to prevent further
migration of contaminants during the
remedial investigation or until suffi-
cient information about system re-
sponse has been obtained to allow
final remedy selection
• Provision for changes in the remedy
during implementation in the Record
of Decision, either by specifying a
contingency remedy or by selecting
an interim remedy and remediation
level
• Collection of additional or supple-
mental information with whichto better
assess contaminant mobility and
system effectiveness, such as data
related tovertical changes in hydraulic
conductivity, contaminant partitioning
between soil and ground water, and
the presence of nona ueous phase
liquids.
RECOMMENDED LANGUAGE
Records of Decision should reflect the
amount of relative uncertainty believed to
be associated with achieving selected
remediation levels in ground water at a
particular site, and should be written to
reflect the purpose of a selected remedy:
• As final actions, intended to restore
ground water quality
• As final actions, with a provision for
establishing contingency levels
• As interim actions, (e.g., intended to
bring about plume containment or
generate additional performance
data), prior to issuance of a ROD.
Final Action
A Final Action Ground Water ROD without
contingency measure(s) is characterized
by low uncertainty and addresses
restoration actions. A Final Action ROD for
ground water restoration without a
contingency is appropriate when there is
little uncertainty that the remedy will
achieve the remediation levels specified
in the ROD throughout the area of
attainment. A statement including
rem ediation level, intended use, the basis
for future evaluation of the level during
rem ediation, a description of the selected
remedy and specific modifications to the
remedy warranted by performance data
during the romediation period, and planned
monitoring following completion of the final
action remediation should appear in the
Selected Remedy section of the ROD.
The suggested type of statement and
languagefor Final Action RODs is provided
on page 2.
Final Action With Contingency
Measures/Levels
Contingency Measures/Levels are char-
acterized by high to moderate uncertainty
and a potential ARARs waiver and also
may include potential containment goal(s).
During implementation and monitoring of
an active ground water remediation sys-
tem, information and data may develop
that indicate it is technically impracticable
to restore the aquifer or to achieve
remediation levels throughout the attain-
ment area. If this scenario is likely to
emerge, future changes in the ROD may
be anticipated by providing torcontingency
measures.
An ARARs waiver may/will be invoked,
accompanied by an Explanation of Sig-
nificant Difference (ESD), if it is determined
on the basis of criteria stated in the ROD
that MCLs/MCLGs or other ARARs can-
not be achieved within all portions of the
area of attainment or where it is anticipated
that it may be technically impracticable to
reach these and other levels targeted in
the ROD.
It may be necessary to do a ROD
amendment instead of an ESD if the
contingency that is implemented differs
fundamentally from that described in the
ROD. In some cases, RODs that predate
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9200.5-2161
Superfund
Records of Decision
May 1991
Update
Office of Emergency and Remedial Response
Hazardous Site Control Division OS - 220W
intermittent Bulletin
Volume 6 Number 2
Pnntodon Recycled Paper

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this guidance may require amendment
when contingency measures are techni-
cally appropriate because restoration of
the aquifer has been shown to be imprac-
ticable.
Cor tingency measures should be ex-
plained in sufficient detail in the Selected
Remedy and Comparative Analysis of
Alternatives sections of the ROD, allowing
the public appropriate opportunityto review
and comment on the contingency as well
as the selected remedy. More specifically.
remediation levels, the selected remedy,
specified modifications to the selected
remedy, and contingency measures and
criteria under which the contingency
measures would be implemented should
be spelled out in the Selected Remedy
section of the ROD.
Supporting Language should be placed in
the Comparative Analysis of Alternatives
section of the ROD. The Statutory Deter-
minations section of the ROD should es-
tablish that both the selected remedy and
the contingency measures fulfill CEACLA
Section 121 requirements. An ARARs
waiver must be justified under the Compli-
ance with ARARs determination. The
suggested type of statement and language
for Final Action with Contingency Mea-
suresil..evels is provided on page 3.
Interim Actions
The Interim Action is characterized by
moderateto substantial uncertaintyor early
action containment measures. The interim
action may be utilized 1) to prevent further
plume migration and begin cleanupduring
Rl/FS and post-Rl/FS activities; and 2) to
obtain information about the response of
the aquifer to remediation measures in
order to define final cleanup goals practi-
cable for the site.
The purpose of the interim action should
be discussed in the Scope and Role of the
Operable Unit section of the ROD. The
purpose of the interim action may be to
begin restoration while additional infor-
mation is collected to better assess the
practicability of aquifer restoration before
the determination of final cleanup levels.
Preliminary cleanup levels may be kienti-
fied for an interim action, but it should be
emphasized in the Scope and Role of the
Operable Unit section of the ROD that
while the purpose of the action is to work
toward the goal of restoration, it does not
constitute a final action for the ground
water. The purpose of an early interim
action may be used to restrict plume mi-
gration until an RI/FS for a final remedial
action is completed. Information collected
during implementation also will be used to
evaluate aquifer response to remediation.
Interim action RODs should not specify
final cleanup levels because such levels
are generally beyond the limited scope of
the action.
All interim action RODs should specify in
the Selected Remedy section, to the ex-
tent possible, the objectives torthe interim
remedial action, scope of monitoring, and
evaluation of the efficacy of the interim
remedy (the period of operation that will
occur before a final decision is made re-
garding the practicability of aquifer resto-
ration). At the end of this time, afinal action
ROD should be prepared that specifies
the final remediation levels, and time frame
for the contaminated ground water at the
site.
The Interim Action should be supported by
language in the Comparative Analysis of
Alternatives section of the ROD. The lan-
guage should indicate that these actions
may not achieve final cleanup levels for
I
the ground water at the site, although thOy
are effective in the short-term in prevent-
ing further degradation and initiating re-
duction in toxicity, mobility, or volume.
MCLsI MCLGs or state cleanup standards
will not be ARARs for an interim action
because they are beyond the scope of the
interim action. The nine-criteria evaluation
should focus on those criteria most perti-
nent to short-term effectiveness and re-
duction of toxicity, mobility or volume, con-
sistent with the scope and purpose of the
interim action. Additionally, language in
the Statuto,yDetermiflatioflSSection of the
ROD should discuss the ways in which the
interim action satisfies the CERCLA sec-
tion 121 requirements within the scope of
the action (i.e., protectiveness of the
remedy). The suggested type of state-
ment and language for Interim Action is
provided on page 3.
Questions concerning ROD ground water
language should be directed to Jennifer
S utter (703/308-8363 or FTS 398-8363) in
the Hazardous Site Control Division.
Final Action (Low Uncertainty, Restoration Actions)
The following type of statement should appear in the Selected Remedy section of
the ROD, with the blanks filled in appropriately:
The goal of this remedial action is to restore ground water to its beneficial use,
which is, at this site, (specify whether this is a potential or actual drinking water
source, or used for nondomestic purposes). Based on in formation obtained during
the remedial investigation and on a careful analysis of all remedial alternatives,
EPA .c(optional) and the State/Commonwealth of _______> believe that the
selected remedy will achieve this goal. It may become apparent, during implemen-
tat ion oroperation of the ground waterextractiofl system and its modifications, that
contaminant levels have ceased to decline and are remaining constant at levels
higher than the remediation goal over some poflion of the contaminated plume. in
such a case, the system performance standards and/or the remedy may be
reevaluated.
The selected remedy will include ground water extraction for an estimated period
of _______ years, during which the system’s performance will be carefully
monitored on a regular basis and adjusted as warranted by the performance data
collected during .operation. Modifications may include any or all of the following:
• Discontinuing pumping at individual wells where cleanup goals have been
attained
• Alternating pumping at wells to eliminate stagnation points
• Pulse pumping to allow aquifer equilibration and to allow adso,bed contami-
nants to paflitiofl into ground water
• lnstalllng additional extraction wells to facilitate or accelerate cleanup of the
contaminant plume
To ensure that cleanup levels are maintained, the aquifer will be monitored at those
wells where pumping has ceased on an occurrence of every_ years following
discontinuation of ground water extraction.
This language should be modified to reflect alternative uses and remedialion goals
(such as in a Class Ill aquifer).
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The following type of statement should
appear in the Selected Remedy section
of the ROD with the blanks filled in
appropriately:
The goal of this remedial action is to
restore the ground water to its benefi-
cial use, which is, at this site, (specify
whether this is a drinking water aquifer
or used for nondomostic purposes).
Based on information obtained during
the remedial investigation, and the
analysis of all remedial alternatives,
EPA <(optional) and the State/Com-
monwealth of ___________> believe
that the selected remedy may be able
to achieve this goal. Ground water con-
tamination may be especially persis-
tent in the immediate vicinity of the
contaminants’ source, where concen-
trations are relatively high. The ability
to achieve cleanup levels at all points
throughout the area of attainment, or
plume, cannot be determined until the
extraction system has been imple-
mented, modified as necessary, and
plume response monitoredover time. If
the selected remedy cannot meet the
specified romodiation levels at any or
all of the monitoring points during
implementation, the contingency mea-
sures and objectives described in this
section may replace the selected rem-
edy and remediation levels for these
portions of the plume. Such contin-
gency measures will at a minimum pre-
vent combination of containment tech-
nologies  and institu-
tional controls. These measures are
considered to protect human health
and the environment, and are techni-
cally practicable under the correspond-
ing circumstances.
The selected remedy will include ground
water extraction for an estim ated period of
_______years, during which time the
system’s performance will be carefully
monitored on a regularbasis and adjusted
as warranted by the performance data
collected during operation. Modifications
may include any or all of the following:
• Discontinuing pumping at individual
wells where cleanup goals have been
attained
• Alternating pumping at wells to elimi-
nate stagnation points
• Pulse pumping.to allowaquiferequili-
bration and encourage adsorbed
contaminants to partition into ground
water
• Installing additional extraction wells
to facilitate or accelerate cleanup of
the contaminant plume
To ensure that cleanup levels are main-
tained, the aquifer will be monitored at
those wells where pumping has ceased
on an occurrence of every yoars
folio wing discontinuation of ground water
extraction.
The following suggested language de-
scribes the recommended contingency
measures and is also presented in the
Selected Remedy section of the ROD:
if it is determined, on the basis of the
preceding criteria and the system perfor-
mance data, that certain portions of the
aquifer cannot be restored to their benefi-
cial use, all of the following measures
involving long-term management may oc-
cur, for an indefinite period of time, as a
modification of the existing system:
Engineering controls such as physi-
cal barriers or long-term gradient
control provided by low level pump-
ing, will be implementE ci as contain-
ment measures;
• Chemical-specific ARARs will be
waived for the cleanup of those por-
tions of the aquifer based on the
technical impracticability of achiev-
ing further contaminant reduction
• Institutional control will be provided
and maintained to restrict access to
those portions of the aquifer that
remain above remediation levels
• Monitoring of specified wells will
continue
• Remedial technologies for ground
water restoration will be reevalu-
ated periodically
The decision to invoke any or all of these
measures may be made during a peri-
odic review of the remedial action, which
will occur at_ year intervals 
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Twenty-Second Remedy
Delegation Report
The Twenty-Second Remedy Delegation
Report memorandum was signed on De-
cember 27, 1990, by Don R. Clay, Assis-
tant Administrator, OSWER. This memo-
randum delegated selection of remedy
authority for all Superfund Records of De-
cision (RODs) scheduled for signature
during FY1991 thatware listed in CERCLIS
as of December 8, 1990, and targeted for
completion. The memorandum also pro-
vided information concerning the types of
sites that will require consultation, the
anticipated level of consultation, and the
role of the Headquarters Regional Coor-
dinator (RC) in this process. The consulta-
tion process appliesto Enforcement, Fund,
State and Federal Facility lead RODs,
ROD Amendments, and Explanations of
Significant Differences (ESD5).
If a Region needs a ROD delegation for a
site not included on CERCLIS as of De-
cember 8, 1990, a memorandum ad-
dressed to Don A. Clay, Assistant Admin-
istrator, Office of Solid Waste and Emer-
gency Response, requesting delegation
of additional RODs and briefing sheets for
each site will be required. Early submittal
of such amemorandumto headquarters is
encouraged because the delegation pro-
cess may take two to three weeks to
complete. A final memorandum from the
Assistant Administrator to the Regional
Administrator completes the delegation
process.
DELEGATION AUTHORIZATION
EPA Delegation of Authority 14-5 autho-
rizes delegation of remedy selection de-
cisions to the Regional Administrators
(RAs). Procedures for delegation of rem-
edy selection decisions to the RAs are
outlined in OSWER Directive 9260.1-9,
March 24, 1986. Remedy selection au-
thority may be re-delegated to the Deputy
Regional Administrator at the discretion of
the Regional Administrator.
CONSULTATION
Formal consultations with Headquarters
are generally required where the proposed
remedial action may be costly; utilizes
waivers; or involves real property acqui-
sitions, national precedent-setting issues,
ROD amendments as a result of PRP
settlements, all ESDs, and containment-
only remedies. Consultations will occur
before the Proposed Plan, amended Pro-
posed Plan, or ESD is issued.
Consultation for containment-only rem-
edies is a new consultation criterion for
FY 1991 and is based on a result of the
study entitled “A Comparative Analyses of
Remedies Selected in the Superfund Pro-
gram During FY87, FY88, and FY89,”
OSWER Directiveg835.13,June2O, 1990.
This report was drafted by OWPE and
OERR in response to the request made
from Senators Lautenborg and
Durenberger. Specific procedures for
consultation on containment-only rem-
edies are given in Directive 9835.13-la,
October 2, 1990. Additional consultation
criteria including State nonconcurrence
issues, contingency remedies, and Natu-
ral Resource Trustee concerns also have
been added to address ROD quality, time-
liness, and enforcement concerns.
Regional consultation will be conducted at
the Assistant Administrator, respective
Office Director, Headquarters Division
Director, or Branch Chief level, depending
on the type of issue(s) involved and the
degree of concern associated with the
issue(s), on a case-by-case basis. The
following guidelines identify the types of
remedy issues which warrant consultation
and the appropriate level of consultation:
Assistant Administrator:
- Exceeds $60 million
- Involves (or potentially involves) a
fund balancing waiver [ SARA
121 (d)(4)]
Office Director:
- Exceeds $30 million
- Real property acquisition for a fund-
financed response
- National precedent-setting issues
- Complex multisource ground water
contamination
- ROD amendment resulting from PRP
settlement/negotiations
Division Director:
Containment-only remedies
- State nonconcurrence issues
- ROD reopener
- Contingency remedies (Note: Con-
sultation is not needed for ground
water contingency remedies that use
standard ground water language
guidance.)
Branch Chief:
- Explanation of Significant Difference
- Remedy does not satisfy Natural Re-
source Trustee concerns
The consultation proc . ,
forcement, Fund, State and Federal 1-acil-
ity lead RODs, ROD Amendments and
Explanations of Significant Differences
(ESDs). OWPE has lead responsibility for
the consultation and assistance for Fed-
eral Facility response actions.
In addition to the consultations identified
above, Regions are encouraged to dis-
cuss unresolved issues relating to an
ARAR waiver or potential waiver, risk as-
sessment, and new policy issues with the
appropriate Headquarters Branch Chief.
The Headquarters Regional Coordinator
should be involved early in the remedial
process for issue resolution as an integral
part of their role in assisting in the con-
sultation process.
Administrative questions concerning del-
egations should be directed to Carol
Jacobson (703/308-8369 or FTS 398-
8369) in the Hazardous Site Control Divi-
sion, or Lance Elson (703/308-5617 or
FTS 398-5617) in the CERCLA Enforce-
ment Division.
Administrative Record
F/na/Guidance on Administrative Records
for Selecting CERCLA Response Actions,
OSWER Directive # 9833.3A-1, was re-
leased on December 3, 1990. The guid-
ance sets forth the policy and procedures
governing the compilation and establish-
ment of administrative records for select-
ing response actions under CERCLA as
amended by SARA. The guidance is
consistent with and expands on Subpart I
of the National Oil and Hazardous Sub-
stances Pollution Contingency Plan, 55
FR 8859, of March 8, 1990.
The Directive includes detailed information
concerning purpose and scope of the ad-
ministrative record, procedures for estab-
lishing the administrative record, contents
of the administrative record, involvement
of other parties, a series of appendices
that provide examples of various key
documents, and the preamble to Subpart
I and Subpart I of the NCP.
BACKGROUND
The administrative record established
under Section 113(k) of CERCLA serves
two primary purposes. First, the record
contains those documents that form the
basis for selecting a response action; and
under Section 1 13(j),judicial review of any
issue concerning the adequacy of any
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response action is limited to the record.
Second, Section 113(k) requires that the
administrative record act as a vehicle for
public participation in selecting a response
action.
The administrative record is the body of
documents that forms the basis for select-
ing a particular response at a site. Docu-
ments that are included are relevant
documents that were relied on to select
the response action, as well as relevant
documents that were considered but ulti-
mately rejected.
The following principles should be applied
in establishing administrative records:
• The record should be compiled as
documents relating to the selection of
the response action are generated or
received by the lead agency
• The record should include documents
that form the basis for the decision,
whether or not they support the re-
sponse selection
• The record should be a contempora-
neous explanation of the basis forthe
selection of a response action.
JUDICIAL REVIEW
Section 113(j)(1) of CERCLA provides
that judicial review of any issues con-
cerning the adequacy of any response
action shall be limited tothe administrative
record. Judicial review based on an ad-
ministrative record provides numerous
benefits. Under Section 1 13(j) of CERCLA
and general principles of administrative
law, when the trial court reviews the re-
sponse action selected, the court is limited
to reviewing the documents in the ad-
ministrative record. As a resuh, 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 resourcesforcleanup ratherthan
litigation.
In ruling on challenges to the response
action decision, the court will apply the
arbitrary and capricious” standard of re-
view set forth in Section 113 (j)(2) of
CERCLA. Under this standard, a court
does not substitute its judgment for that of
the decisionmaker. The reviewing court
does not act as an independent
decisionmaker, but rather acts as a re-
viewing body whose limited task is to check
for arbitrary and capricious action. Thus,
the court will overturn the response selec-
tion decision only if it can be shown on the
administrative record that the decision was
arbitrary and capricious or otherwise not in
accordance with the law. The extent to
which EPA benefits from having judicial
review limited to the record depends on
the quality and completeness of each
record.
PUBUC PARTICIPATION
Section 1 13(k)(2)otCERCLArequiresthat
the public have the opportunity to partici-
pate in developing the administrative record
for response selection. Section 117 also
includes provisions for public participation
in the remedial action selection process.
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 concern.
If the lead agency does not provide an
opportunity for involvement of interested
parties in the development of the adminis-
trative record, persons challenging a re-
sponse action may argue that judicial re-
view 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 oppor-
tunity for public comment on this informa-
tion, place comments and information re-
ceived from the public in the record, and
reflect in the record the lead agency’s
consideration of this information.
Questions concerning the Administrative
Record should be directed to Gary
Worthman (202/382-5646 or FTS
382-5646) in the Office of Waste Pro-
grams Enforcement.
For ideas, submissions, or questions concerning the ROD Update, please contact Carol Bass 202/475-9752. Members of the
public may obtain copies by contacting the EPA Superfund Document Center (OS-240), 401 M. St., S.W., Washington, DC 20460.
Please use fax number 202/245-4386 or E-mail Box 5248 OERR/PUBS or send a written request to ensure that your order is
expedited.
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