UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUN1 21989
MEMORANDUM
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Directive 9360.0-12A
SUBJECT:
FROM:
TO:
Final Guidance on Implementation of the "Consistency" Exemption to the
Statutory Limits on Removal Actions
Jonathan Z. Cannon /s/
Acting Assistant Administrator
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, 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 Reauthorization 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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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 "consistent" with the remedial
action as defined in the guidance, and fall into at least one of the four 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 Amendments 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 (RAs) are authorized to approve requests for exemption
from the 12-month 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 Exemption
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
or 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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response actions that will impede the remedial action or result in wasteful restarts. The
"consistency" 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" Exemption
3.1 Criteria for Eligible Activities
As stated above, removal actions should take into account efficiency of the
Superfund program as a whole. If there is no efficiency to be gained from continuing a
removal action beyond the statutory limits, then the "consistency" 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 appropriateness 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 "remedial 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
remedy 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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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 comply 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 "consistency" 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 "Administrative Guidance for Removal Program
Use of Alternatives to Land Disposal, "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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(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 "consistency" 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 RAs on a case-by-case basis.
cc: Henry Longest
Bruce Diamond
Tim Fields
Russ Wyer
Lloyd Guerci
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