cxEPA
United States
Environmental Protection
Agencv
Office of
Solid Waste and
Response
DIRECTIVE NUMBER: 9360.0-12
TITLE: Guidance on Implementation of the Revised
Statutory Limits on Removal Actions
APPROVAL DATE: April 6, 1937
EFFECTIVE DATE: April 6, 1987
ORIGINATING OFFICE:
IS FINAL
G DRAFT
STATUS:
REFERENCE (other documents):
GSWER Directive 92 00.3-02
Implementation Strategy for Reauthorized Superfund:
Snort Term Priorities for Action
U.S. EPA Headquarters Library
Mail code 3201
1200 Pennsylvania Avenue NW
Washinc
OSWER OSWER OSWE>
VE DIRECTIVE DIRECTIVE
U. 3.
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dEPA
United States Environmental Protection Agency
Washington, OC 20460
OSWER Directive initiation Request
1 Directive Number
9360.0-12
2. Originator Information
Name of Contact Person
Jean Schumann
Mail Code
WH-548/B
Office
OSWER, CERR, ERD
Telephone Number
332-2190
3 Title
Guidance on Implementation of the Revised Statutory Limits or.
Removal Actions
4 Summary of Directive (Include brief statement of purpose)
Provides guidance to Regions on implementation of the SARA 32 million/12 month
statutory limits on removal actions and the "consistency" waiver.
5. Keywords
Statutory Limits
is. Does this Directive Supersede Previous Directives)? | ) Yes |x| No What directive (number, title}
Does It Supplement Previous Directive^)? (^ Yes Q No What Directive (number, t/tte) Q20Q.3-n2
Implementation Strategy for Reauthorized Superfund: Short Term Priorities for Act
Draft Level
I—I A — Signed by AA/DAA I—I i — Signed by Office Director I I C — For Review & Comment I I
In Development
'his Request Meets OSWER Directives System Format
d Office Dire
oordmator
I Date
Name and Title of Approving
J. Winston Porter, Assistant Administrator/CSWSR
Date
• •• ^/
U.S. EPA Headquarters LJbrarv
Mail code 3201
1200 Pennsylvania Avenue NW
Washington 00 ?r>-^n
OSWER OSWER OSWER
DIRECTIVE DIRECTIVE
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OSWER Directive 9360.0-12
GUIDANCE ON IMPLEMENTATION OF THE
REVISED STATUTORY LIMITS ON REMOVAL ACTIONS
1. INTRODUCTION
Section 104(e) of the Superfund Amendments and Reauthorization Act of
1986 (SARA) amends section 104(c) of CERCLA to raise the statutory limits
on removal actions. In addition, SARA provides for an additional waiver of
these limits where continued response action is appropriate and consistent
with the remedial action to be taken. This guidance document explains these
new provisions and describes the appropriate procedures for implementing
them. Section 2 addresses the revised limits and Section 3 addresses the
new consistency waiver. 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. INCREASED STATUTORY LIMITS
Section 104(e) of SARA raises the statutory limits on removal actions
from $1 million and six months to $2 mi 11 ion and^ 12 months.
2.1 Delegation of Authority
The Administrator has delegated the authority to approve removal actions
under the new limits in the following manner:
Non-NPL Sites
a. The Regions are delegated the authority to approve removal
actions costing up to $2 million, but Headquarters (HQ)
retains concurrence^ for actions of "national significance"
or actions which are precedent-setting. Concurrence pro-
cedures and the definition of nationally significant actions
will be set forth in future OSWER directives.
b. HQ retains approval of removal actions costing more than
$2 million. An exemption request must be based on the
three "emergency" criteria in the original Superfund law.
c. The Regions are delegated the authority to approve actions
of any duration, including those that require an exemption
to the 12 month limit.
Proposed/Final NPL Sites
a. The Regions are delegated the authority to approve removal
actions costing up to $2 million.
b. HQ retains approval of removal actions costing more than
$2 million, where the exemption request is based on the
three "emergency" criteria in the original Superfund law.
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c. The authority to approve actions costing more than $2
million, where the exemption request is based on the new
consistency waiver discussed in Section 3, will generally
be retained by HQ, but may be delegated to the Regions on
a site-by-site basis.
d. The Regions are delegated the authority to approve actions
of any duration, including those that require an exemption
to the 12 month limit.
2.2 Determination of Limits
For purposes of tracking removal actions with respect to the statutory
limits, existing procedures should be followed. To track the 12 month limit,
the start and completion dates of removal actions must be determined in accord-
ance with current EPA policy. The time limit for an individual removal action
shall expire 12 months from: the start date, which is the date on-site removal
work begins. If more than one removal has been undertaken at the same site,
the sum of the time expended for all the removals at the site will count
against the 12 month limit.
The $2 million limit applies to all obligations from the Fund associated
with the removal action as specified in the Superfund Removal Procedures
("Allowable Costs for Removal Actions"). If more than one removal has been
undertaken at the same site, the sum of the total project costs for all the
removals at the site will count against the $2 million limit. Enforcement
costs and section 104(b) activities conducted by EPA or any other Federal
agency do not count toward the $2 million limit.
2.3 Indicators of the Need for a Statutory Exemption
Whenever possible, the On-Scene Coordinator (OSC)* should identify the
need for a statutory exemption at the start of the removal action. Such early
planning can improve the efficient allocation of Regional resources, and can
avoid added costs and delays that might occur if on-going site work had to be
suspended while awaiting approval of an exemption request.
If the need for a statutory exemption was not anticipated at the start of
the action, the OSC should review the status of removal activities and site
conditions to determine if there will be a need to request a waiver of the 12
month or $2 million limit in each of the following cases:
a. When a total of $1.5 million has been obligated for commercial
cleanup contracts at a site;
b. When 9 months have elapsed since the start of the removal action;
*0r Remedial Project Manager (RPM), as appropriate. For non-time-critical
removal actions at NPL sites that are remedial-lead projects, the RPM should
be substituted for the OSC in references throughout this guidance document.
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c. When an estimate has been received from a contractor that exceeds
either 12 months/S2 million; or
d. If at any earlier time during the removal action, the OSC
believes that the 12 month/$2 million limits will be exceeded.
Once the OSC has knowledge that the statutory limits may be exceeded for
project completion, the OSC must prepare an Action Memorandum for a statutory
exemption request. (See Section 2.4.) The OSC should notify the Emergency
Response Division (ERD) as soon as it appears that a $2 million exemption
request is necessary. Such notification will help to expedite the Headquarters
exemption approval process. As noted in Section 2.1 above, for exemption
requests based on the new consistency waiver at proposed and final NPL sites,
OSWER may delegate approval authority to the Region on a case-by-case basis.
2.4 Documentation and Coordination Procedures
For removal actions that will not exceed the statutory limits, a standard
Action Memorandum should be prepared that demonstrates how the site meets the
removal criteria established by section 300.65 of the current National
Contingency Plan (NCP). (See the Superfund Removal Procedures for information
on the preparation of Action Memoranda.) Coordination with Regional enforcement
and remedial personnel should be conducted as appropriate.* Headquarters con-
currence will be required prior to initiating removals at non-NPL sites which
are precedent-setting or of national significance.
For removal actions that initially or ultimately exceed the statutory
limits, an Action Memorandum for a statutory exemption request must be
prepared. The exemption request must cite the statutory criteria for extend-
ing the limits and demonstrate how the criteria are met by site conditions.
Again, coordination with Regional enforcement and remedial personnel should
be conducted as appropriate. Coordination with Regional Counsel must also be
carried out to ensure that the legal findings are adequately demonstrated.
Section 3 of this guidance document explains how to use the new waiver of the
statutory limits available under SARA. If an exemption request will be based
on the new consistency waiver, follow the additional documentation instructions
in Section 3.6.
3. NEW WAIVER TO THE STATUTORY LIMITS
Under the original CERCLA, removal actions had to meet three criteria to
be granted an exemption to the statutory limits: 1) continued response actions
are immediately required to prevent, limit, or mitigate an emergency; 2) there
is an immediate risk to public health or welfare or the environment; and 3) such
*For remedial-lead removal actions, the RPM should coordinate activities with
Regional removal personnel and obtain removal program concurrence on the Action
Memorandum. In accordance with Superfund Removal Procedures, OSCs and Regional
enforcement personnel should coordinate efforts to identify and compel potentially
responsible parties to perform removal actions.
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assistance will not otherwise be provided on a timely basis. Section 104(e)
of SARA adds a fourth, independent criterion that allows removal actions to
continue beyond the 12 month/$2 million limits if "continued response action is
otherwise appropriate and cpnsjstent with _th_e_ re_rne_d1_a_1_ act 1o_n_ t_o be taken."
Because this fourth criterion is independent of the other three, a waiver may be
granted if a removal action satisfies either the first three tests, or the
fourth test alone.
3.1 Applicability
This new exemption is available only at proposed and final NPL sites.
The original "emergency" waiver will continue to be available at all sites.
3.2 Purpose
The primary purpose of this provision is to enhance EPA's ability to
choose the most effective response mechanism -- removal or remedial — at
proposed and final NPL sites. This waiver allows EPA to implement an operable
unit of a remedial action where a removal action is the most appropriate
approach, but the time or funds necessary to perform a thorough removal
response will exceed the statutory limits. By increasing EPA's flexibility
to initiate a response action quickly using removal authority, the waiver can
improve efforts to contain and control hazardous substance releases, increase
the protection of public health and the environment, and decrease total
response costs.
It is important, however, that this waiver be used judiciously because
State cost-sharing is not required for removal actions. The objective of the
waiver is to increase the efficiency of Superfund responses, not to circumvent
State cost-sharing requirements. In general, therefore, use of the waiver
should be limited to removal actions that exceed the $2 million limit by a
reasonable amount, unless a compelling reason exists to perform a more expensive
removal .
3.3 Definition of "Otherwise Appropriate"
Use of this waiver to extend a removal action is "appropriate" in three
situations: 1} to mitigate a near-term threat; 2) to prevent further
migration; or 3) to ensure an efficient response. To some extent, these
objectives are interrelated and if an action meets one requirement, it may
also satisfy a second or third.
To mitigate a near-term threat. At some sites, a threat may not
constitute an emergency, but will require a response over $2 million/12 months
that is more rapid than a remedial action. For example, the presence of hazard-
ous substances in intact drums may not present an immediate threat, but early
removal of the drums can eliminate the possibility of leakage or spillage as
drums deteriorate in the time period before long-term remedial cleanup begins.
Hazardous substances on the surface of a site may often be candidates for early
treatment/disposal at proposed and final NPL sites to reduce the potential for
human exposure and environmental damage.
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To prevent further migration. A removal action that exceeds the statutory
limits may be appropriate if needed to contain hazardous substances before they
migrate to larger areas and cause more extensive contamination. The excavation
of contaminated soil is a typical removal action designed to both eliminate a
direct contact threat and to prevent further migration of contaminants. Capping
and installation of drainage controls/containment barriers are other examples of
removal actions to reduce contaminant migration.
To ensure an efficient response. It may be more efficient and economical
in some cases to take additional steps as part of an early removal action rather
than wait for long-term remedial cleanup. Such steps can avoid the need for
removal restarts. For example, if a lagoon containing hazardous substances is
close to overflowing, a removal action could be conducted to either lower the
freeboard or completely drain the lagoon. Although lowering the freeboard is the
less expensive removal option and addresses the immediate threat, heavy rains may
cause the lagoon levels to rise again and require a removal restart. Draining
the lagoon might therefore be a more efficient and economical response in the
long run because removing the hazardous substances eliminates the possibility of
a recurring threat.
Contaminated soils provide another example of site conditions which may
warrant a removal action that exceeds the statutory limits to improve response
efficiency. If a removal action is required to eliminate a threat from highly
contaminated soils, but the site also contains a limited area of low-level soil
contamination, it may be more efficient to address all contaminated soil at one
time as part of a removal action.
A final example of a situation where the waiver may be used to accomplish
a more efficient response is when a removal action over $2 million/12 months
is needed to implement an alternative technology. Alternative technologies are
often more time-consuming and costly than land disposal, but they can also pro-
vide permanent destruction of wastes, thus accomplishing a more complete response,
For all removal actions, however, the selection of a removal technology must be
justified based on a variety of factors, including technical feasibility, cost,
effectiveness of threat mitigation, etc.
To obtain an exemption to the statutory limits based on this new waiver,
the removal action must be found "appropriate" under at least one of the three
situations described above.
3.4 Definition of "Consistent"
"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 j_f_ other
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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
most 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 for a statutory
exemption. (See Section 3.6.)
3.5 Determination of the Remedial Action
This new waiver of the statutory limits requires response personnel to
judge the consistency of the removal action in relation to the "remedial
action to be taken." If the Record of Decision has already been signed for
a remedial action at an NPL site, then comparing the removal action to the
remedial cleanup plan is a straightforward 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. To the extent possible, the removal action selected should
not preclude any of the feasible remedial alternatives.
A separate written analysis is not required to identify feasible remedial
alternatives. Response personnel need only review existing site information
and use their best professional judgment. It is the responsibility of removal
and remedial personnel in the Regions to coordinate with each other in this
effort. The conclusions of this review will be documented in the Action
Memorandum, as discussed further in Section 3.6.
Site information for this review may be available from several sources:
1) the remedial site evaluation; 2) the site management plan; 3) the RI/rS,
if started; and 4) the Engineering Evaluation/Cost Analysis (EE/CA), which is
required for non-time-critical removal actions. (The EE/CA is an analysis of
removal options.)
3.6 Documentation and Coordination
To obtain a waiver based on this provision, the Action Memorandum for
the exemption request must specifically cite the "otherwise appropriate and
consistent with remedial action" criterion and demonstrate how it is satisfied
at the site. It would be helpful to reference the site information that was
reviewed, and to briefly summarize the information that was most important in
making the waiver determination.
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OSWER Directive 9360.0-12
To facilitate communication and coordination between the removal and
remedial programs, concurrence will be required from a management official
from each program. It will be the responsiblity of each Region to establish
a suitable concurrence chain.
As mentioned earlier, it is also essential for removal and remedial
personnel at the staff level to coordinate with each other when selecting the
proposed removal action.
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