UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON, D.C. 20460
                         FEB191992                    OFFICE OF
                                           SOLID WASTE AND EMERGENCY RESPONSE

                                     OSWER Directive  9355.7-03

MEMORANDUM

SUBJECT:  Permits and Permit "Equivalency" Processes  for  CERCLA
          On-site Response Actions

FROM:     Henry L. Longest II, Director  /s/
          Office of Emergency and Remedial Response

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
               Region X
PURPOSE

     The purpose of this directive  is to clarify the  Environmental
Protection Agency  (EPA)  policy with respect  to attaining permits
for activities  at  CERCLA sites.  CERCLA  response  actions are
exempted by law from  the requirement to obtain Federal,  State or
local permits  related to any  activities conducted completely
on-site. It is  our policy  to  assure all activities conducted on
sites are protective  of  human health and the environment. It is not
Agency policy  to  allow  surrogate or permit  equivalency procedures
to impact the  progress  or  cost of CERCLA site remediation in any
respect.

BACKGROUND

     In implementing  remedial actions,  EPA has consistently taken
the position that  the acquisition of permits is  not  required for
on-site remedial  actions.  However,  this does not remove the
requirement to  meet  (or  waive) the  substantive provisions of
permitting regulations  that are  applicable  or relevant and
appropriate requirements (ARARs).  (For  further discussion on ARARs
in general, see the attachment to this  directive. For definitions
of "substantive"  and  "administrative,"  see  55 FR 8756-57 and the
CERCLA Compliance  with  Other  Laws Manual,  Part I, pages 1-11-12.)
The proposed and  final  1982 National Oil and
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Hazardous Substances Pollution Contingency Plan  (NCP) made no
mention of the permit issue. However, EPA addressed  the issue  in a
memorandum entitled "CERCLA Compliance with Other Environmental
Statutes" which was attached as an appendix to the proposed  1985
NCP  (50 FR 5928, February 12, 1985) . The memorandum  stated:

     "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 CERCLA."

     EPA determined in the final rule [1985 NCP section
300. 68 (a) (3) ] that "Federal, State, and local permits are not
required for Fund-financed action or remedial actions taken
pursuant to Federal action under section 106 of CERCLA." The 1986
amendments to CERCLA codified section 300. 68 (a) (3) of the 1985 NCP
with a statutory provision, section 121 (e) (1) . CERCLA section
121 (e) (1) provides that no Federal, State, or local  permit shall be
required for the portion of any removal or remedial  action
conducted entirely on-site, where such remedial action is selected
and carried out in compliance with section 121.

     The 1990 NCP [section 300.400(e)(1)]  implements this permit
exemption for "on-site" actions, defining "on-site"  as "the  areal
extent of contamination and all suitable areas in very close
proximity to the contamination necessary for implementation  of the
response action." The preamble to the NCP  (at 55 FR  8689, March 8,
1990) explains that "areal" refers both to the surface areas and
the air above the site. EPA policy further defines "on-site" to
include the soil and the groundwater plume that are  to be
remediated. On-site remedial actions may involve limited areas of
noncontaminated land; for instance, an on-site treatment plant may
need to be located above the plume or simply outside of the  waste
area itself.

     As provided in NCP section 300.400(e)(1),  response actions
covered by CERCLA section.121(e)(1) include those conducted
pursuant to CERCLA sections 104, 106, 120, 121, and  122. Thus
response actions conducted by a lead agency, or by a potentially
responsible party or other person under an order or  consent  decree
with EPA, are covered under the ambit of CERCLA section 121(e) (1).
Response actions by a lead agency include those response actions
implemented by EPA, the Coast Guard, or another Federal agency.
They also include response actions implemented by a  State or
political subdivision operating pursuant to a contract or
cooperative agreement executed pursuant to CERCLA
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section 104(d)  (1), under which EPA selects  (or must approve) the
remedy. Hereafter, the discussion concerning lead agencies  should
be understood to include, where appropriate, potentially
responsible parties or other persons acting under CERCLA section
106.

DISCUSSION

     While permits may not be required for CERCLA on-site response
actions, some permitting authorities have attempted to require lead
agency participation in a process that is "equivalent" to a
permitting process in order to satisfy the authority's concern that
there will be compliance with ARARs. In effect, they argue  that
participation in a permit-like process is necessary to identify the
substantive provisions of permitting regulations.

     Under a  permit "equivalency" process, the lead agency is asked
to participate in a process that an applicant would pursue  to
secure a permit, except that most fees and public hearing
requirements  are normally waived. The permit "equivalency" process
itself has caused delay and cost increases in some response
actions. The  process holds the potential  for further delays and
cost increases due to often lengthy review of documents submitted
to the permitting authority as if a permit were actually required,
and due to the attachment of non-ARAR conditions by the permitting
authority to  the permit "equivalency." It also suggests,
incorrectly,  that the approval of a permitting authority is
required before a CERCLA action may proceed or before an ARARs
determination may be made with respect to the permitting
regulations.

     Unfortunately,  some lead agencies have acquiesced to
participation in such "equivalency" processes. Such acquiescence
has been rationalized by the fact that it is particularly difficult
to determine  compliance with the substantive requirements of
permitting programs, where levels are set on a site-specific basis,
e.g., such as based upon the equipment provided by the remedial
action contractor, or as would normally be set in a permit  or in
the Record of Decision  (ROD)  at Superfund sites. In some cases,
lead agencies have agreed to participate  in a permit "equivalency"
process, although both the lead agency and the permitting authority
have acknowledged the applicability of CERCLA section 121(e)(1).

     EPA has  consistently rejected the notion that CERCLA response
actions are subject to such processes (see Background discussion
above). The NCP, while acknowledging the  need for coordination and
consultation  with other agencies, notes  (at 55
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FR 8756-7,  March 8, 1990)  that CERCLA section 121 (e)) (1) and other
CERCLA provisions:

     "...reflect Congress'  judgment that CERCLA actions should not
     be delayed by  time-consuming and duplicative administrative
     requirements such as  permitting,  although remedies should
     achieve the substantive standards of applicable or relevant
     and appropriate laws... EPA's approach is wholly consistent
     with the overall goal  of the Superfund program, to achieve
     expeditious cleanups,  and reflects an understanding of the
     uniqueness of  the CERCLA program, which impacts more than one
     medium (and thus overlaps with a number of other regulatory
     and statutory  programs).  Accordingly, it would be
     inappropriate  to subject CERCLA response actions to the
     multitude of administrative requirements of other Federal and
     State  offices  and agencies.

     At the same time, EPA recognizes the benefits of consultation,
     reporting, etc. To some degree,  these functions are
     accomplished through  the State involvement and public
     participation  requirements in the NCP. In addition, EPA has
     already strongly recommended that its Regional offices (and
     States when they are  the lead agency) establish procedures,
     protocols or memoranda of understanding that, while not
     recreating the administrative and procedural aspects of a
     permit, will ensure early and continuous consultation and
     coordination with other EPA programs and other agencies.
     CERCLA Compliance with Other Laws Manual, [Part I], OSWER
     Directive No.  9234.1-01 (August 8,  1988). In working with
     States, EPA generally will coordinate and consult with the
     State  Superfund office. That State Superfund office should
     distribute to  or obtain necessary information from other State
     offices interested in activities at Superfund sites.

     The basis for  this recommendation is a recognition that such
     coordination and consultation is often useful to determine how
     substantive requirements implemented under other EPA programs
     and by other agencies  should be applied to a Superfund action.
     For example, although the Superfund office will make the final
     decision on using ARARs,  a water office may provide
     information helpful in determining ARARs when a surface water
     discharge is part of  the Superfund remedy.

     EPA also recognizes the importance of providing information to
     other  programs and agencies that maintain environmental data
     bases. This is particularly true where the remedy includes
     releases of substances into the air or water and
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     the extent of such releases is integral for air and water
     programs to maintain accurate information on ambient air and
     surface water quality in order to set statutorily-specifled
     standards."

IMPLEMENTATION

     There are several possible ways to alleviate the delays and
cost increases caused by a permit  "equivalency" process. First,
lead agencies can refuse to participate in this process, based on
the fact that actual permits are not required under CERCLA section
121 (e)  (1), and procedural requirements are not ARARs under CERCLA
section 121(d) (2) and the NCP.

     Alternatively,  and preferably, the lead agency could actively
consult on a regular and frequent basis with the permitting
authority, in situations where the lead agency deems it helpful to
hasten ARARs identification. To facilitate such consultation, the
lead agency should provide copies of the submittals of the design
contractor and remedial action contractor in a timely manner to the
permitting authority whose ARARs are the subject of the submittals.
The NCP preamble explains (at 55 FR 8757, March 8, 1990) that if
EPA is the lead agency, the coordination and consultation with
State permitting authorities will generally be conducted through a
single State office. Support Agency Cooperative Agreements,
Superfund Memoranda of Agreement, or other protocols may be
appropriate vehicles to establish specific time limits for the
permitting authority to provide technical assistance in the
evaluation of site-specific ARARs.

     However,  any such agreement should be based on the
understanding that a procedural "permit" or permit equivalency
approval is not required, but that the lead agency is participating
in the process in order to facilitate coordination and consultation
with the permitting authority. In some instances, because of the
need to complete a response action and to avoid delays and cost
increases, the lead agency may decide to terminate the consultation
process. Nevertheless, this process should result in the lead
agency's designing the remedy to meet all of the substantive
requirements of the permitting regulations that are ARARs.

     NOTE: The above policies and procedures are intended solely as
     guidance to EPA employees.  They do not constitute rulemaking
     by the Agency,  and may not be relied on to create a right or
     benefit,  substantive or procedural,  enforceable at law or in
     equity by any other person. EPA may take action that is at
     variance with the policies and procedures in this directive.

Attachment

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Attachment
                        Discussion on ARARs
     CERCLA section 121(d)(2)(A) and NCP section
300.430 (f) (1) (i) (A) require  EPA to select remedies  that meet  or
waive certain Federal or  State ARARs. ARARS are defined in  the NCP
at section 300.5 under  the rubrics of "applicable requirements"  and
"relevant and appropriate  requirements." For guidance  on ARARs
identification, see NCP sections 300.400(g); 300.430(e)(2);
300.515(d) (1) and  (3) and  (h)(2); CERCLA Compliance with Other Laws
Manual, Parts I and II, OSWER Directives No. 9234.1-01 and  -02
(August 8, 1988 and August 1989). The NCP does not  require  the
concurrence of States or  other  Federal agencies (or other EPA
program offices) on the Superfund Program's determination as  to
which standards are ARARs, although consultation with  the
appropriate State or Federal  agency is required.

     NCP section 300.435(b) (2) provides that once ARARs are
selected, it becomes the  responsibility of the lead agency  during
the Remedial Design  (RD)  and  Remedial Action  (RA)  to ensure that
all Federal and State ARARs  identified in the ROD are  met.  In
accordance with CERCLA  section  121(d)(4) and NCP section
300.430 (f) (1) (ii) (C), EPA  may select a remedial action that does
not meet an ARAR under  any one  of 6 waiver circumstances. If
waivers from any ARARs  are involved, the lead agency is responsible
for ensuring that the conditions of the waivers are met. Pursuant
to CERCLA section 121 (f) (1),  States must be provided an opportunity
to comment on proposed ARARs  waivers and may challenge ARARs
waivers, as provided in CERCLA  section 121(f)(2)and(3).

     Remedial actions must comply with those requirements that are
determined to be ARARs  at  the time of ROD signature. NCP section
300.430 (f) (1) (ii) (B) , in  effect, "freezes" ARARs when  the ROD is
signed unless compliance with newly promulgated or modified
requirements is necessary  to  ensure the protectiveness of the
remedy. If ARARs were not  frozen at this point, promulgation  of  a
new or modified requirement  could result in a reconsideration of
the remedy and a restart  of  the lengthy design process, even  if
protectiveness were not compromised. This lack of certainty would
adversely affect the operation  of the CERCLA program,  would be
inconsistent with Congress' mandate to expeditiously clean  up
sites, and could adversely affect negotiations with potentially
responsible parties.

     As a general policy,  EPA considers newly-promulgated
requirements or other information as part of the review conducted

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at least every five years, under CERCLA section 121 (c), for sites
where hazardous substances remain on-site. The review requires EPA
to assure that human health and the environment are being protected
by the remedial action. Hence, the remedy should be examined in
light of any new standards that would be applicable or relevant and
appropriate to the circumstances at the site and in light of any
other pertinent new information to ensure that the remedy is still
protective. However, if such information comes to light at times
other than at the five-year reviews, EPA will consider the
necessity of acting to modify the remedy at such times.

     After the ROD is signed,  new information may be generated
during the RD/RA process that could affect the remedy selected in
the ROD. Such new information may result in "nonsignificant,"
"significant," or "fundamental" changes to the remedy.
Nonsignificant changes are minor changes that usually arise during
design and construction, when modifications are made to the
functional specifications of the remedy to optimize performance and
minimize cost. This may result in minor changes to the type and/or
cost of materials, equipment,  facilities, services and supplies
used to implement the remedy.  The lead agency need not prepare an
explanation of significant differences for minor changes. These
changes should be documented in the post-ROD file, such as the
RD/RA case file. Significant changes to a remedy are generally
incremental changes to a component of a remedy that do not
fundamentally alter the overall remedial approach. The lead agency
would need to publish in a local newspaper an explanation of
significant differences announcing such changes. On the other hand,
if the action, decree, or settlement fundamentally alters the ROD
in such manner that the proposed action, with respect to scope,
performance, or cost, is no longer reflective of the selected
remedy in the ROD, the lead agency will issue a notice of
availability and brief description of the proposed amendment to the
ROD in a local newspaper in order to facilitate public comment.
Proposed ROD amendments should identify new requirements that are
ARARs and whether they will be met or waived.

     For more guidance on responding to post-ROD information,  see
"Guide to Addressing Pre-ROD and Post-ROD Changes," Publication No.
9355.3-02FS-4  (April 1991), and "ARARs Q's & A's:  General Policy,
RCRA, CWA, SDWA, Post-ROD information, and Contingent Waivers,"
Publication No. 9234.2-01/FS-A (June 1991), Questions 14-16.
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