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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