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OSWER Directive 9360.0-19
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Objecti've:
The objective of this guidance is to ensure Regional compliance with
HQ concurrence requirement for non-NPL removal actions involving
nationally significant or precedent-setting issues. This document
identifies categories of potential removal situations which have been
determined to be of national significance or precedent-setting and
specifies procedures for requesting HQ concurrence on these actions. The
guidance also identifies categories of removals subject to special
procedural requirements but not to the HQ concurrence requirement.
The types of removals subject to the concurrence requirement are not
limited to those categories identified in the guidance. These categories
are to be used by the Regions as a guide for screening proposed removals
at non-NPL sites that may require HQ concurrence. Since evaluation of
these sites is largely interpretive, final determinations regarding
removals of a nationally significant or precedent-setting nature should
involve consultation with Emergency Response Division (ERD) Regional
Coordinators.
This interim final guidance is effective immediately. Additional
revisions to the guidance will be considered as experience is gained
and/or further policies are established that may affect the established
categories and the HQ concurrence mechanisms.
implementation:
I. NATIONALLY SIGNIFICANT OR PRECEDENT-SETTING CATEGORIES
Six categories of removals have been designated as nationally
significant or precedent-setting. The list is not exhaustive and early
consultation with the Emergency Response Division (ERD) is recommended
where there are questions, in making the determination, the key
considerations are:
(a) whether Fund-financed response to a particular incident will
establish a precedent for when or how future response actions
must be taken; or
(b) whether a response will commit EPA to a course of action that
could have a significant impact on future resources, due to the
widespread occurrence of a particular problem.
The categories identified and the rationale for identification are as
follows:
1. Removal actions at sites within the united States or its
territories involving contamination or response actions that
may affect other sovereign nations, including Indian tribes.
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Rati'onale: HQ concurrence will facilitate the execution of proper
diplomatic protocol by the Department of State, and proper
coordination with Indian tribes, the Bureau of Indian Affairs, the
Indian Health Service, and other appropriate organizations, where
applicable.
2. Removals involving pesticide contamination arising from:
- improper storage of pesticide products awaiting
i ndemni fi cati on
- lawful application of pesticides, including special
local use pesticides
- grain fumigation operations.
Rationale: HQ concurrence will ensure that the Agency avoids
commitment to cleanup of widespread contamination beyond the intended
SCOpe Of CERCLA.
3. Removal actions at sites involving any form of dioxin when it
is one of the principal contaminants of concern.
Rationale: HQ concurrence will ensure national consistency in dioxin
cleanup. The Dioxin Disposal Advisory Group (DDAG) in HQ must review
all dioxin removal actions to verify that the proposed action will
provide an acceptable level of protection from dioxin exposure.
4. Removal actions at sites involving releases from consumer
products in consumer use (e.g., lead-contaminated soil
resulting from peeling lead-based paint on houses).
Rationale: HQ concurrence will ensure that the Agency avoids a
commitment to the cleanup of widespread non-point source
contamination that is beyond the intended scope of CERCLA.
5. Removals involving asbestos when it is the principal
contaminant of concern.
Rationale: HQ concurrence remains necessary because action levels for
response have not yet been set and these determinations are being
made on a case-by-case basis.
6. Removal actions involving substances or releases which may be
subject to statutory exclusions or limitations in CERCLA.
These include:
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substances excluded from Fund-financed response under
the SARA section 101(14) definition of "hazardous
substance" (e.g., petroleum products including crude
oil, and natural gas or synthetic gas usable for fuel);
releases excluded from Fund-financed response under the
SARA section 101(22) definition of "release" (e.g.,
emissions from the engine exhaust of motor vehicles;
releases of radioactive material from a nuclear
incident; and releases caused by normally applied
fertilizer);
releases excluded from Fund-financed response under
SARA section 104(a)(3) including releases of a
naturally occurring substances; releases from products
that are part of a structure and result in exposures
within the structure; and releases in public or private
drinking water supplies due to system deterioration
from ordinary use.
Specific examples of substances or releases that have raised
statutory interpretation or related policy issues with respect to
their eligibility for CERCLA removal action include radon
contamination in building structures, pentachlorophenol (PCP)
contamination in log cabins, releases from coal gasification
facilities, methane gas releases, and asbestos in building materials
in homes.
Rationale: HQ concurrence will ensure that statutory exclusions and
limitations are interpreted in a consistent manner. HQ concurrence
will also ensure consistent application of ERA'S authority under
CERCLA section 104(a)(4) to respond to any release or threat of
release if it constitutes a public health or environmental emergency
and no other person will respond in a timely manner.
Concurrence Procedures
Early screening for issues of a nationally significant or precedent-
setting nature is essential to ensure timely HQ concurrence when
necessary. OSCs should contact the appropriate ERD Regional Coordinator
when a possible nationally significant or precedent-setting removal action
is first identified, to alert the Regional Coordinator that a request for
HQ concurrence will be forthcoming. OSCs should also call the Regional
Coordinator for advice on actions that are not specifically listed in the
guidance, but which may be nationally significant or precedent-setting.
Some nationally significant removal actions may require special
coordination and oversight by the National incident Coordination Team
(NICT). These types of removal actions are discussed in a November 10,
1986, memorandum from the AA, OSWER entitled "Relationship between
Preparedness Staff and Office of Emergency and Remedial
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Response during a Nationally Significant incident," which states that OSCs
should inform the Regional Coordinator when these types of incidents
occur.
For those removal actions where HQ concurrence is required, written
concurrence must be received prior to the Regional Administrator's (RA)
formal approval of the Action Memorandum, except in cases of emergencies
(i.e., situations where a response must be initiated within hours after
completion of a site evaluation). HQ concurrence procedures for
non-emergency removal actions at dioxin sites have been modified to
streamline procedures. These non-emergency, emergency, and special dioxin
concurrence procedures are discussed below.
Non-Emergency Removal Concurrence Procedures
All non-emergency concurrences must be requested through an Action
Memorandum with a Request for Concurrence form attached. The Action
Memorandum should be in final draft form, except that it should not be
signed by the RA. The request form must be addressed from the RA to the
OD, OERR and should describe the nationally significant or
precedent-setting issue. This form has been developed in an effort to
minimize the additional paperwork associated with obtaining HQ
concurrence. A copy of the form is attached.
The RA may approve the Action Memorandum for a nationally significant
or precedent-setting removal action once the action has been concurred
upon by HQ. Additional HQ concurrence is required only if the scope of
work described within the Action Memorandum changes significantly, in this
case, HQ concurrence on the amended Action Memorandum is required, as
discussed above, prior to any additional actions at the site. HQ
concurrence is not required on requests for ceiling increases or time
exemptions, unless the scope of work changes significantly. Most $2
million exemption requests require approval by the AA, OSWER, unless the
consistency exemption authority for that site has been delegated to the
RA.
Emergency Removal Concurrence Procedures
in cases where emergency removal actions, as defined above, involve
nationally significant or precedent-setting issues, Regions may initiate a
removal action without HQ concurrence, in these cases, however, OSCs must
take only those actions necessary to mitigate the emergency or stabilize
the site, and then inform the appropriate ERD Regional Coordinator on the
next working day after the removal action was initiated.
if the response is determined to be nationally significant or
precedent-setting but no further actions are required beyond the emergency
mitigation, the Regions must send to the Director, OERR a copy of the
Action Memorandum
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submitted to the RA for that removal. The Action Memorandum should clearly
describe the nationally significant or precedent-setting issues involved.
A request for HQ concurrence is not necessary when the incident does not
require actions beyond the initial emergency measures.
For those nationally significant or precedent-setting sites where
further response is required beyond the emergency measures, HQ concurrence
must be obtained before taking any further action. These concurrence
requests are subject to the non-emergency procedural requirements
described above. HQ will expedite the review of these requests to avoid
delaying on-going removal actions.
Special Dioxin Concurrence Procedures
TO reduce the administrative burden that the HQ concurrence
procedures place on Regions with large numbers of dioxin sites, the
non-emergency concurrence procedures have been modified. This modification
permits the concurrence on a single dioxin site Action Memorandum to be
used for multiple dioxin sites in the same Region. TO qualify for this
special concurrence procedure, the additional dioxin sites must have
identical forms of dioxin present, and identical cleanup measures must be
employed to achieve identical cleanup goals. Regions with multiple dioxin
sites meeting these criteria may obtain concurrence for them all on a
single Action Memorandum if supplementary information is supplied as
described below.
The additional sites should be listed on the concurrence form if they
are known at the time the original Action Memorandum is submitted. It
should be specifically stated that the sites are identical in nature and
that identical cleanup measures will be employed, if additional dioxin
sites meeting the above criteria are discovered after receipt of the
original HQ concurrence, the Regions are required to inform the
appropriate ERD Regional Coordinator of the location of the additional
removal actions. The Regions must also note within the Action Memorandum
that previous concurrence on the cleanup approach has been provided.
II. REMOVAL ACTIONS SUBJECT TO SPECIAL PROCEDURAL REQUIREMENTS
The requirements established below apply to five removal categories
that do not present nationally significant or precedent-setting issues
requiring HQ concurrence, but instead involve issues that require special
Regional procedures.
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The five categories of removal actions and the policy for handling
each are as follows:
1. Removals involving mining sites.
Procedures: OSCs must consult with their ERD Regional Coordinator and
demonstrate within the Action Memorandum that they have investigated
other potential cleanup authorities (e.g., the Surface Mining Act)
but found that a response could not be initiated under such
authorities within the time frame required to protect human health,
welfare, or the environment, or that these authorities do not apply
to the particular response situation.
2. Removals involving Federal facilities.
Procedures: Guidance on conducting removals at Federal facilities is
under development, until this guidance is effective, OSCs must confer
with the ERD Regional Coordinators to ensure that the roles and
responsibilities of the various agencies are assigned appropriately.
3. Removals involving site-specific contracts.
Procedures: OSCs must coordinate with the HQ Procurement and
Contracts Management Division (PCMD) to confirm that the contract
Statement of work (sow) is consistent with the Action Memorandum and
the SOW conforms with CERCLA and the NCP.
4. Removals involving radiation sites.
Procedures: OSCs must contact the HQ office of Radiation Programs for
guidance on health and safety in conducting radiation cleanup
activities.
5. Removals involving business relocations.
Procedures: Action Memoranda for removals involving business
relocations may be approved by the Regional Administrators, and other
response activities comprising the removal may be initiated; however,
until specific guidance is developed, OSCs must confer with ERD
Regional Coordinators on business relocations prior to initiating the
specific business relocation activities. This is to ensure national
consistency in the criteria used to determine the need for business
relocations, and the specific expenses incurred.
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Comments and questions on this guidance should be directed to
Betty Zeller in the Emergency Response Division, FTS 382-7735.
Attachment
cc: Superfund Branch chiefs, Regions i-x
OHM Coordinators, Regions i-x
Betti van Epps
Tim Fields
Betty zeller
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Subject: Request for Concurrence on Proposed Nationally Significant or
Precedent-Setting Removal
From: Regional Administrator
To: Director
Office of Emergency and Remedial Response
The purpose of this memorandum is to request your concurrence on the proposed removal
action at the site in . Redelegation of Authority R-14-1-A gives you the
authority to concur on nationally significant or precedent-setting removals.
The OSC has discussed this proposed removal with staff of the HQ Emergency Response
Division. ERD has advised the OSC that this removal is considered nationally significant or
precedent-setting because
The action memorandum is attached for your review. My approval awaits your concurrence.
Concur
Director, Office of Emergency and Remedial Response Date
According to the redelegation, authority to non-concur remains with the Assistant Administrator. If you
choose not to concur on this action, please forward this memo to the Assistant Administrator.
Non-Concur:
Assistant Administrator for Solid Waste Date
and Emergency Response
Concur:
Assistant Administrator for Solid Waste Date
and Emergency Response
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